Nicole McLAUGHLIN, Respondent on Review, v. Kenneth WILSON, M.D., Petitioner on Review.
(CC 13C21746) (CA A160000) (SC S066047)
Supreme Court of Oregon
September 12, 2019
365 Or 535 | 449 P3d 492
Argued and submitted May 15, at Mt. Hood Community College, Gresham, Oregon; decision of Court of Appeals affirmed, judgment of circuit court reversed in part, and case remanded to circuit court for further proceedings September 12, 2019
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed in part, and the case is remanded to the circuit court for further proceedings.
On review from the Court of Appeals.*
Thomas M. Christ, Sussman Shank LLP, Portland, argued the cause and filed the briefs for petitioner on review.
Andrew Altschul, Buchanan Angeli Altschul & Sullivan LLP, Portland, argued the cause and filed the brief for respondent on review.
Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Kistler, Senior Justice pro tempore.**
* On appeal from Marion County Circuit Court, Tracy A. Prall, Judge. 292 Or App 101, 423 P3d 133 (2018).
** Garrett, J., did not participate in the consideration or decision of this case.
WALTERS, C. J.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed in part, and the case is remanded to the circuit court for further proceedings.
WALTERS, C. J.
Oregon’s civil rights laws make it an “unlawful employment practice” for an employer to discriminate on the basis of any of several protected characteristics. The law protects that right and others by making it unlawful “[f]or any person to discharge, expel or otherwise discriminate against any other person because that other person” has opposed or reported certain unlawful practices.
I. FACTUAL AND PROCEDURAL HISTORY
Because this case arose out of defendant’s motion to dismiss, “we assume that the facts alleged in the complaint are true and draw all reasonable inferences in plaintiff’s favor.” Bailey v. Lewis Farm, Inc., 343 Or 276, 278, 171 P3d 336 (2007). In 2012, plaintiff began working at Hope Orthopedics as a medical assistant. While employed at Hope, plaintiff worked closely with defendant, an orthopedic surgeon. Defendant supervised plaintiff’s work and was responsible for training her. Initially, defendant was pleased with plaintiff’s work and gave her a very positive performance evaluation. When plaintiff later applied to an MBA program at Willamette University, she asked defendant to provide a reference, and he wrote her a glowing one.
Over the next few months, defendant began to sexually harass plaintiff and attempted to initiate a sexual relationship with her. Because of defendant’s authority at Hope, and because defendant had served as plaintiff’s reference for her MBA application, plaintiff feared retaliation if she reported defendant’s behavior. In June 2013, plaintiff was accepted into Willamette’s MBA program. After plaintiff told defendant that she would be leaving Hope soon, defendant’s conduct worsened. He continued his pattern of sexual harassment and criticized plaintiff’s religious beliefs. Plaintiff then reported defendant’s behavior to Hope.
Hope placed plaintiff on paid leave while it investigated her complaints, and plaintiff ultimately left Hope to enter the MBA program without returning to work. Plaintiff’s complaints against defendant were resolved in August 2013. Five days later, defendant went to the office of the Director of Admissions at plaintiff’s MBA program and asked to speak to the admissions director about “the person who I wrote a reference for.” Defendant told the admissions director, falsely, that plaintiff had “left her past two jobs by getting large amounts of money and a gag order,” and that defendant was concerned about plaintiff manipulating male faculty members. Those statements were spread to others at Willamette, including the dean of the MBA program, and plaintiff experienced unwanted attention and suffered emotional distress.
Plaintiff filed this action against defendant, raising several claims, including defamation, intentional infliction of emotional distress, and the claim that is relevant to this appeal,
“[f]or any person to discharge, expel or otherwise discriminate against any other person because that other person has opposed any unlawful practice, or because that other person has filed a complaint, testified or assisted in any proceeding under this chapter or has attempted to do so.”
Plaintiff appealed, assigning error to the trial court’s dismissal of her retaliation claim. Plaintiff argued that
The Court of Appeals ruled in plaintiff’s favor, concluding both that defendant was a “person” within the meaning of
II. “ANY PERSON”
A. Text and Context
The disagreement between the parties begins with the term “person.” Defendant argues that, as used in
“[f]or any person to discharge, expel or otherwise discriminate against any other person because that other person has opposed any unlawful practice, or because that other person has filed a complaint, testified or assisted in any proceeding under this chapter or has attempted to do so.”
(Emphasis added.) The term “person” is one that the legislature defines, along with others “[a]s used in *** chapter” 659A, in
“(9) ‘Person’ includes:
“(a) One or more individuals, partnerships, associations, labor organizations, limited liability companies, joint stock companies, corporations, legal representatives, trustees, trustees in bankruptcy or receivers.
“(b) A public body as defined in
ORS 30.260 .“(c) For purposes of
ORS 659A.145 and659A.421 and the application of any federal housing law, a fiduciary, mutual company, trust or unincorporated organization.”
We are obliged to apply that definition of the term. State v. Couch, 341 Or 610, 619, 147 P3d 322 (2006); see also Comcast Corp. v. Dept. of Rev., 356 Or 282, 295, 337 P3d 768 (2014) (“When the legislature provides a definition of a statutory term, we of course use that definition.“). And, when we do so, it seems obvious that defendant would qualify as a “person” within the meaning of
We understand defendant to argue, however, that there is an implicit, contextual qualification to the first use of the word “person” in paragraph (f) of
Three features of the text and context of
Second, the word “person” is used four times in the sentence that comprises paragraph (f). Defendant does not argue that the second, third, or fourth uses of the word “person” cannot refer to individuals other than employers. Yet, “use of the same term throughout a statute indicates that the term has the same meaning throughout the statute.” PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). Moreover, the text of the statute links the usages.
Finally, a look at the other paragraphs of
At this stage of the analysis, defendant principally relies on a single piece of context—a related provision that also uses the term “person.” Paragraph (g) of
“[f]or any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.”
As defendant acknowledges, the phrase “whether an employer or an employee” could have been used in paragraph (g) either to qualify the term “person” (limiting the referenced
We need not settle that dispute to reject the contextual argument that defendant advances here. If “whether an employer or an employee” is included in paragraph (g) only for emphasis, then there is no basis from which to infer a limitation on the meaning of the word “person” as used in paragraph (f). If, on the other hand, “whether an employer or an employee” qualifies the meaning of “person” in paragraph (g), then that only strengthens the case that “person” as used in paragraph (f) is not subject to such a qualification. The qualifying clause is absent from paragraph (f) and “use of a term in one section and not in another section of the same statute indicates a purposeful omission ***.” PGE, 317 Or at 611.
In summary, we do not find support in the statute’s text or context for the interpretation of the term “person” that defendant advances.
B. Legislative History
Defendant suggests, however, that we consult legislative history, and we recognize that it is appropriate to do so for limited purposes:
“Legislative history may be used to confirm seemingly plain meaning and even to illuminate it; a party also may use legislative history to attempt to convince a court that superficially clear language actually is not so plain at all—that is, that there is a kind of latent ambiguity in the statute.”
Gaines, 346 Or at 172 (footnote omitted). Defendant contends that, in this case, the legislative history demonstrates that the legislature’s replacement in
The text now found in
The change that gives rise to this case, the replacement of “employer, labor organization or employment agency” with “person,” occurred in 2001, as a result of the enactment of House Bill (HB) 2352 (2001). That bill was drafted by the Oregon Law Commission, and the change was part of an effort to bring the civil rights statutes administered by the Bureau of Labor and Industries (BOLI) into a single chapter and to “reorganize the statutes into more logical order, clarify the administrative process through which the bureau enforces the laws, and make the statutes easier to understand and use.” Exhibit F, House Committee on Judiciary, Subcommittee on Civil Law, HB 2352, Feb 5, 2001 (statement of Jack Roberts, Commissioner of BOLI). Given that purpose, the Oregon Law Commission reported that it had generally “refrained from changing [the] substance of the civil rights statutes.” Id.
“One of the *** mantras that we had through this process is that we did not want to make any substantive changes, we really were looking at trying to make this a more user-friendly statute ***. [The] purpose was simply to go forward and try to do the reorganization as indicated without any substantive changes.”
Tape Recording, House Committee on Judiciary, Subcommittee on Civil Law, HB 2352, Feb 5, 2001, Tape 9, Side A (statement of OLC member Jeff Carter). And the legislative counsel credited with drafting the bill gave a similar explanation:
“[T]here was an extreme sensitivity to not making changes in substance, perhaps more so than almost any other group I’ve worked with probably over the last few sessions.”
Id. (statement of Dave Heynderickx).
However, the discussion in the legislature demonstrates that at least some legislators recognized that the line between changes in substance and changes in procedure often is a fine one. We find revealing an exchange between Senator John Minnis, Chair of the Senate Committee on Judiciary, and Marcia Ohlemiller, legal policy advisor for BOLI, one of the bill’s proponents. Ohlemiller began her summary of the bill for the committee by explaining that,
“[o]ver the years, a number of different changes have been made to Oregon civil rights laws. *** Along the way, as different substantive protections were added, some procedural things didn’t get put in there consistently all the way through. *** [F]or instance, what we call aider and abettor liability, which allows enforcement against people who aren’t necessarily the employer but who participate in discrimination, is available in some types of discrimination but not in others. Cease and desist orders, which are a tool of the Commissioner to order a respondent to stop doing something that’s been determined to be illegal [are] available under some statutes and not others. And relief for retaliation for reporting civil rights violations [is] available under some types of discrimination and not others.
“*****
“We don’t believe from looking at the statutes that any of this was intentional. It appears that with great enthusiasm some protections were put in, here and there, new things, but all the pieces weren’t put in there to enforce those types of violations. *** Every attempt was made to keep it procedural and not substantive.”
Tape Recording, Senate Committee on Judiciary, HB 2352, Apr 30, 2001, Tape 115, Side A (statement of Marcia Ohlemiller) (emphasis added). At that point, Senator Minnis interjected, “I’m a little unclear as to what you just said. *** Did you grant certain authorities that weren’t previously granted?” Id. (statement of Sen John Minnis). After a brief back-and-forth, Senator Minnis clarified his question:
“What I’m trying to get clear in my mind is whether these were just areas of statutory law that were spread out in statutory law and you’ve now reorganized everything in a logical, sequential order or if you have made some assumptions about certain enforcement actions or investigative powers, and you’ve added investigative powers or enforcement actions where you didn’t previously have statutory authority?”
Id. (statement of Sen John Minnis). Ohlemiller gave the following response:
“It was reworked and reorganized and to the best of our ability we constructed what we believed from the language that was there and the history we could find to be the ways these were supposed to be enforced.”
Id. (statement of Marcia Ohlemiller). Senator Minnis responded, “What I’m sensing you’re telling me is that *** there [was] some assumption about what the legislature either intended or didn’t.” Id. (statement of Sen John Minnis). After some further discussion, Senator Minnis summarized his takeaway from the hearing: “[T]here are some
That exchange suggests that, as one other legislator observed, “What’s substantive is sometimes in the eye of the beholder and there are degrees, I guess, of substantiveness ***.” Tape Recording, House Committee on Judiciary, Subcommittee on Civil Law, HB 2352, Feb 5, 2001, Tape 9, Side A (statement of Rep Lane Shetterly). Put another way, a premise of defendant’s reading of legislative history is that, when the bill’s drafters and proponents told the legislature that the bill contained no “substantive” changes, what they meant was that it did not change the scope of any provisions. However, based on the exchange with Senator Minnis, it appears that Ohlemiller, at least, had a different understanding of what the word “substantive” meant. Thus, the legislators who enacted the bill may have understood that it included some changes that the drafters believed were necessary to carry out the legislature’s overall intent, some of which could be thought of as matters of substance.
Even if we were to accept the idea that the legislature did not intend to make any changes to the scope of existing statutes, it would be difficult to understand the replacement of the phrase “employer, labor organization or employment agency” with the word “person” as anything other than such a change. Defendant suggests that the word “person” can be understood as a convenient shorthand for those three entities because they are “the subjects of the unlawful employment practices described in the other paragraphs of that subsection.”2 But, as discussed, the word “person” does not have that shorthand meaning in other parts of the sentence comprising
Likely for that reason, defendant’s more forcefully argued contention is that the change to the text was simply a mistake, one that this court should correct by declining to give it any effect. When such mistakes occur, defendant contends, “the courts are supposed to honor the intent, not the mistake—to give effect to the legislative purpose, not the nonconforming text.” Here, though, as the foregoing discussion of the legislative history shows, there is no persuasive indication that the legislature’s change to the text was a mistake. The legislative history does not clearly indicate that the legislature did not intend to expand the scope of
Moreover, we long have recognized that “[t]his court cannot correct clear and unambiguous language for the legislature so as to better serve what the court feels was, or should have been, the legislature’s intent.” Monaco v. U. S. Fidelity & Guar., 275 Or 183, 188, 550 P2d 422 (1976); see also State ex rel. Everding v. Simon, 20 Or 365, 373-74, 26 P 170 (1891) (stating the same principle). And, significantly, that is the manner in which the legislature has asked us to interpret
That rule is in no way at odds with the fact that the “paramount goal” of our interpretive methodology is oriented around the “paramount goal” of “discerning the legislature’s intent.” Gaines, 346 Or at 171. Rather, “it is for the legislature to translate its intent into operational language.” Monaco, 275 Or at 188. Beyond that, “[o]nly the text of a statute receives the consideration and approval of a majority of the members of the legislature, as required to have the effect of law.” Gaines, 346 Or at 171. In this case, where defendant’s principal evidence of a mistake is legislative history indicating, at most, a general effort to refrain from substantive changes, we see no reason to doubt that the legislature’s chosen text is the best window to its intent. “[L]egislative history cannot substitute for, or contradict the text of, that statute.” White v. Jubitz Corp., 347 Or 212, 223, 219 P3d 566 (2009).4 We conclude that, as relevant here, the
word “person” in
III. “OTHERWISE DISCRIMINATE AGAINST”
We now turn to the second disputed phrase in
We start with PSU Association of University Professors v. PSU, 352 Or 697, 291 P3d 658 (2012), because plaintiff argues that, in that case, we decided that the term “otherwise discriminate” in
“restricts an employer from engaging in retaliatory activity that reasonably would impede or deter employees from pursuing their rights under that chapter.”
PSU Association of University Professors, 352 Or at 713.
PSU Association of University Professors provides some guidance here. In parts of his arguments about the meaning of “otherwise discriminate against,” defendant asks us to rule that paragraph (f) is limited to discrimination that affects the “terms, conditions or privileges of employment,” in the same way that paragraph (b) expressly is so limited.5 Paragraph (f) does not use the words “terms, conditions or privileges of employment,” and that position is one that we necessarily rejected in PSU Association of University Professors in holding that the relevant standard for paragraph (f) is whether the act was one “that reasonably would impede or deter employees from pursuing their rights under that chapter.” Id. at 713; see also Burlington, 548 US at 64 (holding that Title VII’s “antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment“). In applying that standard in PSU Association of University Professors, we did not ask whether the grievance procedure was a “term,” “condition,” or “privilege” of employment, but looked to whether “the employer’s policy would tend to dissuade employees from pursuing their protected rights because exercising those rights would result in a substantive difference in treatment,” treating the question as identical under Title VII and
As helpful as PSU Association of University Professors is, it does not decide the matter before us. In that case, we noted the similarity of our standard to the standard in Burlington, and it also is true that Burlington had held that Title VII’s “antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm.” Burlington, 548 US at 67. But whether
Turning again to the text of
Ejusdem generis is an interpretive principle under which “a nonspecific or general phrase that appears at the end of a list of items in a statute is to be read as referring only to other items of the same kind.” Vannatta v. Keisling, 324 Or 514, 533, 931 P2d 770 (1997). “That does not mean, of course, that the specific examples constitute the universe of items to which the general term refers; rather, it means only that our interpretation of the general term includes consideration of those specific examples.” Schmidt v. Mt. Angel Abbey, 347 Or 389, 404, 223 P3d 399 (2009). We agree with defendant that the structure of the phrase “discharge, expel, or otherwise discriminate” in paragraph (f) makes it appropriate to apply ejusdem generis to interpret “otherwise discriminate.” “Discriminate” is a nonspecific term, and the inclusion of “otherwise” suggests that its content is defined in relation to the two prior terms in the list.6
“[W]hen using the principle of ejusdem generis, the court seeks to find, if it can, a common characteristic among the listed examples.”
Schmidt, 347 Or at 405 (emphasis in original). Here the common characteristic cannot be an employment relationship or terms and conditions of employment. Only one of the two listed forms of discrimination—“discharge“—refers to an action taken within an employment relationship or that affects the terms and conditions of employment. The other listed term, “expel,” more naturally speaks to a loss of membership in a labor organization. Tellingly, “expel” appears in
Defendant’s further suggestion that “otherwise discriminate” should be read to be limited to “acts that adversely affect employment status or union membership” also finds no purchase. Even before the addition of the word “person” in 2001, a change that no party argues narrowed the meaning of “otherwise discriminate,” paragraph (f) was concerned with more than just discrimination by employers and labor organizations. Between 1949 and 2001, that
paragraph applied to “employer[s], labor organization[s] or employment agenc[ies].” See former ORS 659.030(1)(f) (1999), renumbered as
Another indicator that paragraph (f) is broader than defendant contends is found in the forbidden bases for discrimination. Paragraph (f) prohibits discrimination not only against individuals who have filed complaints of discrimination, but also precludes discrimination against any person who has “testified or assisted in any proceeding under this chapter” and against any person who “has opposed any unlawful practice.” That text encompasses many individuals who are not necessarily current employees of offending employers, current members of offending unions, and current job seekers using offending agencies. Once again, a limitation of “otherwise
Our review of that context and statutory history convinces us that
acts inside an employment relationship and at least extends to retaliation with a nexus to past or future employment. Plaintiff suggests that it extends further and can include acts with no connection to employment at all. In this case, we need not chart the outer limits of conduct reached by the phrase “otherwise discriminate against” in paragraph (f); the facts before us pass within its orbit.8 Here, according to the complaint, defendant first recommended plaintiff to Willamette’s MBA program on the basis of her work performance at Hope, which he observed while supervising her employment. Then, in response to her filing a complaint against him with their mutual employer, he reached out to the director of admissions to the MBA program and qualified that recommendation by making false statements about plaintiff’s actions with her last two employers. The acts of retaliation alleged in the complaint have a clear nexus to plaintiff’s prior employment, because defendant’s statements were made as plaintiff’s former supervisor and pertained to her actions at Hope. They also relate to plaintiff’s access to future employment through the degree that she was pursuing. And, from the facts alleged, a reasonable factfinder could find that defendant’s activity reasonably would impede or deter an employee from pursuing her rights under ORS chapter 659A. See Bailey, 343 Or at 278 (“In reviewing the trial court‘s ruling dismissing plaintiff‘s complaint, we assume that the facts alleged in the complaint are true and draw all reasonable inferences in plaintiff‘s favor.“).
IV. CONCLUSION
To sum up, we agree with plaintiff that, when
held liable under
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed in part, and the case is remanded to the circuit court for further proceedings.