This tort action arises from plaintiff John Plotkin’s short-lived tenure as CEO of SAIF Corporation (SAIF) and, for purposes of this appeal, involves the grant of a special motion to strike under ORS 31.150, Oregon’s Anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, which creates a two-step procedure for expeditiously dismissing unfounded lawsuits attacking certain types of public speech.
SAIF is an independent public corporation that provides workers’ compensation insurance to Oregon employers. Three months after plaintiff started as CEO, SAIF’s board dismissed him. After his termination, plaintiff brought claims against multiple defendants. This appeal pertains only to plaintiffs claim for intentional interference with economic relations against defendant Brenda Rocklin, who immediately preceded him as CEO of SAIF. Plaintiff appeals the trial court’s grant of defendant’s special motion to strike that claim under ORS 31.150. He argues, among other things, that the court erred in concluding (1) that defendant met her initial burden to show that plaintiffs claim came within the reach of ORS 31.150, and (2) that plaintiff failed to meet his evidentiary burden at the second step of the anti-SLAPP procedure. As explained below, we conclude that, although the trial court’s threshold determination that plaintiffs claim is susceptible to an anti-SLAPP motion to strike was correct, it erred in concluding that plaintiff failed to satisfy his burden at the second step of the analysis, and in granting the motion to strike on that basis. Accordingly, we reverse and remand for further proceedings.
To provide context for the underlying facts, we briefly describe the purpose and procedure of ORS 31.150, set out below,
That statute outlines a procedure that “requires that the court engage in a two-step burden-shifting process.” Young v. Davis,
We review a trial court’s ruling on an ORS 31.150 special motion to strike for legal error. Yes On 24-367 Committee v. Deaton,
Thus, in reviewing the grant of the motion to strike, we do not find or decide the facts in this case. Rather, we consider plaintiffs evidence and draw the reasonable inferences from that evidence in favor of plaintiff. OEA v. Parks,
Plaintiff replaced defendant as SAIF’s CEO on February 3, 2014. Defendant, who was retiring, stayed on for a one-month transition period. During that time, plaintiff and defendant spent several days on a business trip, during which plaintiff “told [defendant] a story about milking goats in relation to a cheese-making class [he] took with [his] wife.” Although plaintiff may have referred to goat “teats” in telling the story, plaintiff states that he “never used the word ‘tits,’ whether in relation to goats, women, or anything else.” Defendant did not find those comments to be offensive or sexually discriminatory.
On April 22, well after the transition period ended, defendant had dinner with Ryan Fleming, SAIF’s vice president of operations and human resources. Fleming told defendant that several employees had complained about “inappropriate comments plaintiff had made in and around the workplace,” and sought defendant’s “advice and counsel” on how to handle that matter. Defendant relayed to Fleming the statements plaintiff made during their joint business trip. According to notes Fleming made following that dinner, defendant told Fleming that plaintiff had “talked about a woman’s ‘tits’” during the business trip.
In the period leading up to plaintiffs termination in early May, defendant maintained regular contact with ■ Fleming and another SAIF representative, Chris Davie, who served on SAIF’s board and as its vice president of corporate policy and external affairs. Defendant also spoke with SAIF board chair Catherine Travis during that crucial period.
Board chair Travis called defendant on May 1 concerning various complaints regarding plaintiff; the possibility that plaintiff might be terminated; and whether defendant (or others) would be interested and suitable for replacing plaintiff as an interim CEO if he were terminated. During that conversation about the various complaints against plaintiff, Travis stated that she knew “that plaintiff had said something to [defendant].”
Travis and Fleming then called plaintiff at home on Saturday, May 3. Travis told plaintiff that they had the board votes to terminate him and requested his resignation. Plaintiff, who had not previously been informed of any allegations against him, had “no idea” what was going on. When he inquired why he was being asked to resign, Travis explained only that plaintiff had “allegedly engaged in actions that could trigger claims based upon ‘protected class status.’”
Plaintiff refused to resign. On May 9, he received a letter informing him that SAIF’s board of directors had dismissed him. The dismissal was controversial. Some SAIF executives believed that it was the product of a turf war within SAIF’s executive ranks and that defendant, the retired former CEO, was overly involved in those matters. It later came to light that Fleming’s notes of plaintiffs statements to defendant and certain SAIF employees conflicted with their recollection of their statements, to the extent that several employees claimed that Fleming’s reporting of the events was false and inaccurate. All of the individuals who had supposedly witnessed inappropriate comments later denied that the incidents had occurred or asserted that the content of the statements was decidedly different (and far less likely to be viewed as offensive) than what Fleming had reported. Plaintiff later learned that Davie had “coordinated the messaging” around the termination, and that Fleming and Davie had orchestrated the termination without informing other SAIF executives. Their colleagues were dismayed to learn that defendant and another retired executive had been involved in the termination planning.
After his dismissal, plaintiff brought his intentional interference claim against defendant, alleging, among other things, that defendant’s involvement in the events leading up to his termination constituted intentional interference with his business relationship with his former employer.
“In fact, the comment to which Rocklin was referring related to a story that Plotkin told Rocklin about attending a cheese-making class with his wife. Within the context of that story, Plotkin made a comment about goat teats. He was aware that Rocklin grew up in an Idaho ranching community and did not anticipate that she would be offended by discussion related to milking goats. Rocklin deliberately described the comment as one about women’s breasts to create the false and harmful impression that Plotkin had engaged in sexual harassment.”
Defendant responded with a special motion to strike the claim under ORS 31.150. Defendant contended that the claim was subject to the anti-SLAPP procedure because the conduct at issue arose out of oral or written statements submitted in connection with an issue under consideration by an executive body, ORS 31.150(2)(b), and was in furtherance of the exercise of the right to free speech in connection with an issue of public interest, ORS 31.150(2)(d).
Defendant also advanced a number of arguments in connection with the second step of the anti-SLAPP analysis. She contended that plaintiff had not adduced substantial evidence of intentional interference, arguing, in particular, that plaintiff had failed to produce evidence of the improper means and
In opposing the motion to strike, plaintiff countered that, as a threshold matter, the anti-SLAPP procedure was inapposite. Plaintiff further argued that, even if the claim was subject to ORS 31.150, his burden at the second step of the analysis was less stringent than defendant had proposed. Because his claim was one for intentional interference (not defamation), plaintiff asserted that he need only produce evidence meeting each of the prima facie elements of that tort for purposes of the anti-SLAPP procedure, and was not required to overcome affirmative defenses. Plaintiffs evidence included his declaration concerning what was actually said in his “goat-milking” conversation with defendant, defendant’s declaration and recollection of the events, phone records showing that defendant had been in frequent contact with the SAIF officials who orchestrated his termination, and notes from defendant’s meeting with Fleming reflecting that defendant told Fleming that plaintiff had made an inappropriate comment to her about a “woman’s flits.’”
The trial court granted the motion to strike. It concluded that the claim was subject to the anti-SLAPP procedure on both grounds proposed by defendant, involving “speech on an issue that was under consideration by an executive agency,” ORS 31.150(2)(b), and “speech on a matter of public interest,” ORS 31.150(2)(d). At the second prong of the analysis, it concluded that plaintiff had failed to make a prima facie case for intentional interference because there was not substantial evidence of the elements of improper means and causation. With respect to improper means, the court explained that the evidence concerning defendant and plaintiffs conversation about goat milking did not lead to a reasonable inference that defendant had made a false or defamatory statement about plaintiff. As to causation, the court said that the evidence presented by plaintiff, particularly the phone records, did not support a reasonable inference that defendant had any involvement whatsoever in the termination or had conspired to get plaintiff fired. The court also reasoned that there was not substantial evidence that defendant’s statement to Fleming played even a small role in plaintiffs termination, let alone evidence that it was a “but-for” cause. The court did not reach defendant’s public figure defamation, absolute privilege, and qualified privilege theories.
On appeal, plaintiff challenges the trial court’s conclusions at both steps of the anti-SLAPP analysis, and both parties generally reiterate their previous arguments. Thus, this case requires us to analyze, first, whether this action is subject to an anti-SLAPP motion, and, second, whether plaintiff established a prima facie case sufficient to withstand the motion to strike. For the reasons that follow, the trial court’s threshold conclusion that this action is subject to ORS 31.150 is correct. However, the court erred in granting the motion to strike based on an erroneous conclusion that plaintiff did not meet his burden at the second step of the anti-SLAPP procedure.
ORS 31.150 provides, in relevant part:
“(1) A defendant may make a special motion to strike against a claim in a civil action described in subsection (2) of this section. The court shall grant the motion unless the plaintiff establishes in the manner provided by subsection (3) of this section that there is a probability that the plaintiff will prevail on the claim. The special motion to strike shall be treated as a motion to dismiss under ORCP 21 A but shall not be subject to ORCP 21 F. Upon granting the special motion to strike, the court shall enter a judgment of dismissal without prejudice. If the court denies aspecial motion to strike, the court shall enter a limited judgment denying the motion.
“(2) A special motion to strike may be made under this section against any claim in a civil action that arises out of:
«* ⅜⅜**
“(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body ***;
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“(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
“(3) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection (2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. If the plaintiff meets this burden, the court shall deny the motion.”
(Emphasis added.)
Thus, under subsection (3), which establishes the burdens at both steps of the analysis, defendant was initially required to demonstrate that the claim arises out of activity described in subsection (2), which sets out several categories. As noted above, the trial court concluded that this action qualifies under subsections (2)(b) and (2)(d). Because we conclude that this action is subject to subsection (2)(d), we need not address whether it also qualifies under subsection (2)(b).
ORS 31.150(2)(d) provides that any claim in a civil action that arises out of “[a]ny other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest” is subject to an anti-SLAPP motion. We focus, as the trial court did, on how defendant’s conduct was in furtherance of her “constitutional right of free speech in connection with * * * an issue of public interest.” The trial court reasoned that “[c]learly the conduct of the head of one of our most important agencies and * * * one of the highest-paid executives in state government is a matter of public interest.” We agree with that straightforward assessment. Subsection (2)(d) encompasses the conduct at the heart of this claim, a comment defendant allegedly made about the professional conduct of the leader of a public corporation. See Mullen,
We turn to plaintiffs second assignment of error, challenging the trial court’s conclusion that plaintiff failed to satisfy his burden, at the second step of the anti-SLAPP procedure, to “establish that there is a probability that [he] will prevail on the claim by presenting substantial evidence to support a prima facie case.” ORS 31.150(3). We conclude that plaintiff made the necessary showing.
The prima facie elements of a claim for intentional interference are
“(1) the existence of a professional or business relationship ***, (2) intentional interference with that relationship, (3) by a third party, (4) accomplished through improper means or for an improper purpose, (5) a causal effect between the interference and damage to the economic relationship, and (6) damages.”
McGanty v. Staudenraus,
To satisfy the element of improper means, the actionable conduct must be “wrongful by some measure beyond the fact of the interference itself.”
Plaintiffs theory of improper means relies on plaintiffs allegation that defendant purposely made a false statement to Fleming about plaintiffs comments about milking goats, that is, falsely reporting instead that plaintiff made a comment about a “woman’s ‘tits.’” See
As to causation, plaintiff argues that the trial court erred in concluding that there was no evidence from which a reasonable juror could find a causal effect between the interference (defendant’s claimed false statement to Fleming) and the damage to the economic relationship (plaintiffs subsequent termination). We agree with plaintiff that, drawing all reasonable inferences in favor of plaintiff, the evidence at least supports a prima facie case that defendant’s statement to SAIF’s human resources representative, Fleming, had a “causal effect” on plaintiffs termination. See McGanty,
That evidence draws from, among other sources, plaintiffs declaration, Fleming’s notes, defendant’s declaration, and several documents confirming numerous communications between defendant, on the one hand, and members of the SAIF board and executive team, on the other, in the weeks and days leading up to and immediately following SAIF’s termination of plaintiff. The evidence and the reasonable inferences that can be drawn from that evidence would allow a reasonable juror to find that plaintiffs disputed statement to defendant, when relayed to SAIF representatives, had a causal effect on the SAIF board’s termination of plaintiff.
That evidence shows that Fleming, as SAIF’s human resources executive, was building a case against plaintiff that he intended to bring to the board and asked defendant to advise him in that endeavor, and that the statement at issue was one of several that were ultimately brought to the board’s attention. It also shows that defendant spoke with Travis, the board chair, during a conversation in which Travis was investigating several inappropriate comments claimed to be made by plaintiff, and it can at least be inferred that defendant generally confirmed some inappropriate comment had been made to her. Soon after, Travis asked plaintiff to resign in connection with “actions that could trigger claims based upon ‘protected class status.’”
Indeed, it is reasonable to infer that both Travis, the board chair, and Fleming believed that plaintiffs statement to defendant was a significant factor in the board’s decision to ask plaintiff to resign — and ultimately to terminate him. When Travis and Fleming called
In addition, as noted, the phone records show that, after the initial dinner meeting at which defendant relayed plaintiffs statement to Fleming, they stayed in frequent contact. Defendant called Fleming seven times between May 1 and May 3 (the date that plaintiff was asked to resign) and she regularly spoke with Davie in the weeks before the termination, with 12 calls between May 1 and May 9. Under the circumstances — and particularly considering the timing of the calls and the nature of the participants’ relationships, positions, and work responsibilities — it is reasonable to infer that their discourse related to plaintiffs termination. Moreover, numerous internal communications show that Fleming and Davie were heavily involved in the termination process, and that their colleagues viewed their dealings as furtive and unorthodox, believed that defendant was involved, and were highly critical of the entire course of events.
Taken together, all of that evidence and the reasonable inferences drawn from it, if credited, support plaintiffs assertion that defendant made a false statement to Fleming regarding plaintiff that had a “causal effect” on SAIF’s termination of plaintiff. Thus, the trial court erred in concluding, at the second step of the anti-SLAPP procedure, that plaintiff failed to meet his evidentiary burden to present a prima facie case.
We note that our task at the second step under ORS 31.150(3) is only to determine if there is “substantial evidence to support a prima facie case” and “the goal, similar to that of summary judgment, is to weed out meritless claims meant to harass or intimidate.” Young,
We turn next to defendant’s enhanced burden arguments. Although not expressly framed as such, those arguments present three potential alternative grounds upon which to affirm the trial court’s ruling
As explained below, those arguments present substantial issues of statutory and constitutional law that are insufficiently developed. Accordingly, we elect not to consider or decide them. See Biggerstaff v. Board of County Commissioners,
Defendant’s first alternative contention is that the First Amendment standard for defamation claims by public figures and officials requires plaintiff to establish that defendant acted either with “actual malice,” New York Times Co. v. Sullivan,
The second alternative contention proposes an undeveloped absolute privilege defense. Defendant argues:
“The statement is absolutely privileged because, as a matter of public policy, private citizens and public employees should be encouraged to report unlawful sex discrimination or sexual harassment by high-ranking public officials. It would have a significant chilling effect on such reports if they potentially exposed a complainant to a multimillion dollar lawsuit. This court should not permit individuals to use HER claims to prevent the public from commenting on matters of public concern, including a public official’s fitness for public employment.”
That is defendant’s entire argument. Defendant cites no controlling or directly relevant legal authority to support the existence of such a privilege. Nor does defendant address how that theory fits into existing case law evincing an understanding of absolute privilege as narrowly limited to judicial and legislative proceedings.
The third alternative argument is that plaintiff was required, and failed, to provide evidence capable of defeating defendant’s qualified privilege to report plaintiffs misconduct. That argument presents a significant issue of statutory interpretation. It would require us to decide for the first time whether, under ORS 31.150(3), a plaintiff is required to produce evidence capable of defeating affirmative defenses in order meet its prima facie burden at the second step of the anti-SLAPP analysis. See Neumann v. Liles,
We decline to decide those important statutory and constitutional issues on such thin development and, consequently, do not reach defendant’s alternative contentions.
In sum, the trial court erred in concluding that plaintiff failed to establish a probability that he will prevail on the claim by presenting substantial evidence to support a prima facie case, and in granting the motion to strike pursuant to ORS 31.150(3).
Reversed and remanded.
Notes
Plaintiff also assigns error to the trial court’s award of attorney fees and costs to defendant in connection with the motion to strike. See ORS 31.152 (providing that a defendant who prevails on a special motion to strike shall be awarded reasonable attorney fees and costs). Because we conclude that the trial court erred in granting the motion to strike, we reverse that award as well.
In his third assignment of error, plaintiff argues that the trial court erred in refusing to deny the motion to strike as untimely, contending that defendant’s filing of that motion simultaneously with an ORCP 21A motion to dismiss renders the motion to strike untimely. We reject that argument without discussion.
Fleming, Davie, and Travis are all defendants in the predicate action, but are not involved in this appeal.
The complaint included numerous claims and allegations not at issue before us on appeal, including allegations of public meetings law violations and that defendant made a defamatory statement about plaintiff. On appeal, plaintiff focuses on the allegation that defendant purposefully made a false statement as part of a plot to get plaintiff fired.
Defendant submitted evidence below that, upon receiving this call, she corrected Fleming and explained that plaintiff had not used the term “woman’s tits” during their business trip together, but otherwise permitted Fleming to pass on the accurate story. As discussed further below, a reasonable juror might credit defendant’s account over plaintiffs account and find that defendant did not make any deceitful statements or misrepresentations regarding plaintiffs statement, but the issue for us is whether plaintiff presented sufficient evidence to present a prima facie case in his favor. Young,