*1 1989, petition August petition appellant’s reconsideration filed for recon- On for (96 28) withdrawn; allowed, P2d reversed decision sideration former $24,750, plus judgment remanded with instructions to enter proceedings original judgment and for further March interest from date of 19, 1990 by stipulation appeal June dismissed SEITZ, Appellant, OREGON, STATE OF through CENTER and the ALBINA HUMAN RESOURCES RESOURCES, OF HUMAN DEPARTMENT Respondent. A44440)
(A8411-06886; CA
Before Warren Judges. Rossman,
WARREN, J. dissenting.
Buttler, J.,P.
666-b
667 WARREN, J. affirming of our decision petitions
Plaintiff
for review
547,
P2d 28
opinion.
without
773
judgment
reconsideration,
(1989).
petition
treat
as one for
We
9.15,
Knight,
in the
of Sheets v.
308
light
ORAP
and allow it
220,
Oregon recog-
which held that
Plaintiff the trial court used the argues standard causation in that she was not construc- holding tively discharged employment. argues Defendant plaintiff statutory chapter has no cause of action under ORS 659, Compensation because the provides Workers’ Law remedy. that, reverse, exclusive Defendant also if we it argues equal paid is entitled to a to the amount on plaintiffs setoff compensation workers’ claim. began Albina (Center)
Human Department Resources Center (DHR) 1980, Human in May, super- Resources as an office visor. Her supervisor manager, Winchester, was the Center and she worked for the manager, per- assistant Maher. Her formance by November, 1980, was reviewed Winchester satisfactory 1981 and with a rating of or better.1 She disagreed November, 1982, with her performance rating and requested a interpersonal review. There was evidence of some December, 1982, conflict between and some co- and, also, workers disagreement with certain management during decisions that time. 29, 1982,
On December filed a complaint, alleging race and sex by Winchester and unre- sponsiveness by management complaints to her of being harassed other workers. The Rights Civil Division of the (BOLI) Bureau of & Labor Industries later ruled that her complaint was unfounded.2 January
On 28,1983, requested by memo that Maher 1 system changed rating In each review “2.” was rated a after the review, average before which “2” “2” meant above and after which a meant average. Rights In a Notice Of December the Civil Division Determination on employment practices. found no substantial evidence of unlawful *5 Winchester transfer or terminate plaintiff. The memo described plaintiffs work as error prone* showing poor judg- ment and progressively He worsening. described her attitude 1, 1982, after belligerent, December as noncooperative and progressively date, disruptive. On the same Winchester wrote a Bieberle, memorandum supervisor Center, to request- ing that be removed from the Center. His memo included complaint: reference to her
“My justification time, further removal at this is [her] pendency the fact of Rights Complaint. of her Civil The rami- preclude fications any expectation of this matter reasonable prospect compatible or that a work environment can be main- tained.”
As a result of memorandum, plaintiff Winchester’s suspended weeks, was from February 1, work for two effective 1983. appealed suspension Employment She to the Rela- (ERB). tions Board suspension Defendant changed administrative leave with a negotiated the result of settlement of plaintiffs grievance. Instead of to the returning Center, plaintiff transferred, was temporarily request, at her to the Adult and Family May 25, Services Division. On about 1983, she was notified that she would have to return to the July 1,1983. Center as of 23,1983,
On June a compensa- filed workers’ job experiences tion claim for stress from her at the Center. As claim, requested report plaintiffs result of the SAIF from independent psychiatric doctor and an examination. Her doc- tor stated a history high pressure, that she had blood which May, 1982, had been under control as of but which had reached unacceptable during levels 1983 because of stress job-related interpersonal conflicts. He recommended again. psychiatrist she not work at the Center con- physical cluded that pre-existing emotional problems aggravated by that were work stress. 5,1983, July
Plaintiff returned to the Center on with position Maher as her direct to a new supervisor. agreed She by Maher, which description plan developed work management decisionmaking, except removed her from supervision receptionist. over the She had other clerical files, duties, including personnel maintenance of she kept testified moved office and under were to Winchester’s key. constantly lock and She also testified that she was watched, daily kept records of her activities were and that did she help she not receive needed. July days work,
On two after she filed returning complaint BOLI, a second alleging making retaliation for citing suspension the first claim and and differential treat- July 6, ment before and after her return to the Center. On 1984, BOLI held that there was substantial evidence that the suspension retaliatory. daily BOLI found that records kept activities, were of her employees, but not those of other but it found the evidence inconclusive about whether changes retaliatory duties and treatment were or an mitigate effort to stresses. job
There was extensive evidence of plaintiffs increased conflicts with management and her her co-workers after return to the Center. gave plaintiff Maher a warning, written September 26, 1983, dated stating that her work had been unsatisfactory since her The warning perform- return. listed deficiencies, ance including complete a failure to assignments adequate manner, in an and timely a respond reluctance to to criticism, constructive managerial unauthorized actions and disruptive 17, behavior. On plaintiff November received an unsatisfactory performance evaluation and a copy of letter Green, to DHR, Maher Assistant Director of recom- mending salary thirty days, decrease for by to be followed dismissal if there were “further episodes of similar infrac- tions.” Shortly evaluation, after receiving plaintiff became ill and left work. While she illness, was off work due to the she received a Green, 21, letter from 1983, dated November con- firming salary that her thirty days would be decreased for due inefficiency, stating that her performance would be reviewed after thirty days Maher and warning that further episodes of infractions would result in dismissal. 24,
On plaintiffs November doctor recommended that she take two weeks off because of stress. Plaintiff requested a on hearing ground pay before ERB reduction was in good not faith but in retaliation for her December, complaints. early discrimination In defendant granted 16, her leave. On further medical December while plaintiff leave, on wrote to Green stating was Winchester had improved work record and attitude not since her termination. recommending action and disciplinary salary that her reduction plaintiff instead notified Green her days, had worked for 30 so that would continue until she could be re-evaluated. performance 1984, physician January, plaintiffs personal In late not return to work at informed Green that she could would be on leave with- informed her that she Center. Green part in another vacancy until a should occur pay out unemployment benefits. agency, plaintiff applied and a letter plaintiff DHR sent application, After notice of that rescinding reduction. accepting resignation her salary her reduction. appeal ERB dismissed the March, 1984, benefits were unemployment In November, 1984, filed this action under In awarded. 659.121, employment practice an unlawful alleging 659.030(l)(f). that, in retaliation alleged She violation of ORS complaint on December her first discrimination filing discrimi- February received suspended she was that, in retalia- alleged She also natory differential treatment. 7,1983, complaint, she July filing tion for evaluation, unsatisfactory had her given an reprimanded, constructively discharged. and was salary temporarily reduced Maher, questions trial, response During the said that reprimand, the September, about receptionist’s supervisor, that she was the an erroneous belief supervise say that she was to plan her work did though even that, he addition, stated when Maher receptionist. completing assignments deficient for found *7 plan, he did not con- lines in her work according to the time to that medical absences relevant excused sider her extensive determination. final court, entered a judge to the the
After a trial opin- and wrote a memorandum dismissing the case judgment discrimination, but race or sex ion, no evidence of finding of retaliation: finding evidence established, of the by preponderance plaintiff
“The has plaintiff evidence, toward that evaluations of and directives having filed response in to her by superiors, made were complaints against them.” two proved by plaintiff had opinion The concluded preponderance evidence retaliation had caused physical inability problems emotional led to her employment to continue at the Center: is, best, evenly “The evidence at balanced cause of plaintiffs physical problems. ‘got She emotional back up’ antagonize and set out to and rebuff her co-workers’ over- her; tures toward their resentment of her attitude and actions however, appears, weigh- not to be a factor to be considered treatment, ing legitimacy disparate and has not been so. proving The has not carried the burden of that her employer’s response ailments filing were caused to her complaints, and not her own attitude and actions.” addition, opinion that, stated even if had established a causal relationship between the retaliation and alleged injuries, defendant was entitled to a setoff for the $15,896.21 in workers’ compensation benefits that it paid. parties stipulated then that plaintiffs lost wages and $24,750. benefits totaled
The issue is whether defendant violated ORS 659.030(1) (f) and constructively discharged retaliation filing for her the complaints.
We must first determine the scope of review. If the action was brought de equitable relief, novo. then we review 19.125(3). ORS Plaintiff brought the action under ORS 659.121(1), provides, pertinent part: “Any person claiming aggrieved by to be an unlawful * * * * * * employment practice prohibited by ORS 659.030 may file injunctive a civil suit in circuit court for relief and the may equitable court order such may appro- other relief as be
priate, including but not limited to hir- reinstatement or the ing employees pay.” with or without back requested back without requesting reinstatement any injunctive or relief. We have previously held that a claim pay only 659.121(1) back under ORS is reviewable de novo. Cook Coos-Curry Inc., v. Electric Cooperative, 86 Or (1987). 740 P2d
ORS 659.121 was amended in 1977 in order to create
statutory causes
types
of action for certain
of discrimination.
659.121(1) provides
relief from
unlawful
Sears,
Co.,
In Holien
Roebuck and
practices.
76, 95,
*8
legisla-
(1984),
Supreme Court examined
There was a reference 1977 amendments: hearings on the legislative Attorney Canessa, Oregon Assistant General]: [We “[Bill * * * practices employment remedy] unfair up a for have set straight equita- employment, is a punitive damages. compensatory damages, no remedy, ble no You’re not allowed either with Title VII. This is consistent damages under Title VII. compensatory punitive damages or compensatory Rogers]: Which are “[Representative damages? damages. Mental stress. General
“[Canessa]: damages? Okay. punitive “[Rogers]: And then damages penalty. is a Punitive “[Canessa]: pay any- Penalty. talking about lost or We’re not “[Rogers]: [unintelligible]. thing like that No, that’s correct.
“[Canessa]: Okay. “[Rogers]: lost, you or pay you’ve Equitable is how much “[Canessa]: hired, equitable remedies pay. All the different front
should be Committee, on Work Session Labor you might have.” House 9,1977, 2223, April Tape 1. Side HB relief part equitable of back description of Title VII interpretation courts’ the federal also fits with Act of Rights Civil USC 2000e et on seq § which Oregon employment discrimination laws are based.3 purpose persons
“It is also the Title VII to make whole injuries suffered on account of unlawful dis- crimination.
<<* [*] purpose
“The ‘make whole’ of Title VII is made evident legislative history. backpay provision the expressly backpay provision modeled on the of the National Labor Act, Act. ‘[m]aking Relations Under that the workers whole for losses practice suffered on account anof unfair labor is part public policy vindication of the which the Board ” Paper Moody, enforces.’ Albermarle Co. v. 405, 422 US 418-19, 2362, (1975). (Footnotes 95 S Ct L Ed 45 2d 280 omitted.)
A
pay
claim for back
659.121(1)
under ORS
is
also claim for
equitable relief because of the relationship
pay
between back
659.121(1)
reinstatement. ORS
describes back pay as
relief that
ancillary
is
to
reinstatement. A
does not
have to seek all the relief to which she is entitled in order to
state a claim
659.121(1).
under ORS
Davis v. Surcamp, 86 Or
App
(1987).
A claim of an
employment
unlawful
practice that
is
brought
659.121(1)
under ORS
necessarily
would
allege facts
provide
would
for some kind
injunctive relief,
of
such as
reinstatement
promotion,
or
in order to state a claim that
would allow an award of
pay.
back
Such is the case in this
action,
in which
complaint
the
alleges an illegal discharge,
which, if proved, would provide the right to reinstatement.
cases of
discrimination,
the level of tension and
bad feeling in the workplace might prevent
employee
the
requesting
cases,
reinstatement.
In other
employee
the
might
only
ask
pay,
back
already
because he has
been reinstated
argues
but
that there was a discriminatory delay in reinstate
ment. See Cook v. Coos-Curry
Inc.,
Electric Cooperative,
supra,
App
86 Or
at
request
603. A
for back
under ORS
659.121(1),
therefore, presumes
claim
of entitlement
to
injunctive relief and
an equitable
is
claim.
3 City
Ind.,
Portland v. Bureau Labor and
341, 344,
App
64 Or
(1982),
part
(1984).
rev'd in
674 However,
We, therefore,
de
the
review novo.
because
to see
hear the
opportunity
trial court had the
witnesses
testified,
weight
they
give
will
considerable
testimony,
when
to be
findings
court’s
or
inferences
it,
Sabin,
Hampton
App
are
49
dispute.
drawn from
(1980),
(1981).
1041, 1047,
P2d
rev
charged violation practice that unlawful employment it is an expel “[f|or any employer discharge, discrimi- to or otherwise * * * any person against person has nate because the filed any proceeding in under complaint, testified assisted or attempted to has 659.010to 659.110and 659.400 659.435or to do so.” case, Inc., Sky Chefs, Supreme
The recent Court Bratcher adopted 784 P2d a standard establish- ing discharge stemming unacceptable a constructive working conditions: (1) deliberately prove employer must the that “[A] condition(s) working deliberately maintained
created or the (2) forcing employee to leave the with the intention of (3) employee employment employment, and left the that at 506. working because of the conditions.” 308 Or in a In of an of allegation discharge the context constructive 659.030(1)(f), plaintiff must a violation of ORS claim for retaliated, (1) deliberately she prove defendant because that (2) the intent of complaints, filed the discrimination (3) employ- and that she left forcing her to leave of ment because the retaliation. use the “substantial factor” test4 to determine
We cause plaintiffs protected whether activities were the of alleges suspension She that her defendant’s adverse actions. February, in and her treatment before and after the suspension filing were in retaliation for her the first com suspension and trial found the to plaint. Both BOLI court retaliatory. plaintiffs performance be Because evaluations November, through performance show that her was sat isfactory she give subject no indication that would be to discipline, January and because Maher’s 28 memo referred to to complaint her December one basis for the need remove her, complaint we find that the first was substantial factor in of suspending plaintiff. the Center’s act alleges September Plaintiff also that 26 warning, 17 unsatisfactory performance the November evaluation and in pay given good the reduction were not faith were in retaliation her complaints. September The 26 warning inability referred to perform effectively to under the July 5,1983. plan work The November 17 evaluation tem porarily her pay “inefficiency.” reduced due to trial court did not explanation believe defendant’s of unsatisfactory work by plaintiff and found that the adverse actions were in response complaints. to plaintiff’s give We considerable weight addition, finding. note some inconsisten cies defendant’s evidence. Maher testified that plaintiff was to supervise not authorized work receptionist, plan but the supervision. calls for expected plaintiff Maher also July meet the 5 time lines without his considered having effect of her excused absences. Winchester’s December recom improvement mendation that dismissed for lack be her work, she opportunity when had the to return to work, strongly suggests quality work not the reason for the adverse actions. there is Although evidence that *11 plaintiff with,5 increasingly become difficult to work we that September find retaliation was a substantial factor in the 4 Sears, Co., supra, See 298 Or Holien v. Roebuck and at 90 n 5. 5 by job performance may against in Deterioration be an caused
employee.
Meyer
Labor,
253, 258,
564,
See Fred
v. Bureau
P2d
rev
592
(1979).
den
The next is whether defendant took retaliatory forcing plaintiff with the intention of actions 28, 1983, job. requested January her on that leave Maher and, date, on the same plaintiff terminate Winchester from the Cen requested plaintiff Winchester that be removed suspension removing had the effect of resulting ter. The November, After the temporarily to a different work site. 1983, expressed the clear intent pay, reduction Winchester plaintiff in his letter of December 16 that be terminated. We and that plaintiff find that defendant intended to terminate permits an inference that defendant retaliated in the evidence purpose. of that furtherance question employ
The last is whether left her retaliatory employer’s acts. On this issue ment because finding plaintiffs differ with the trial court’s that own actions,.not retaliation, physical attitude and caused departure. Although plaintiff and her and emotional ailments history high pressure, problem a blood was under has elevated in pressure again control in but her blood was Her February, suspension. physician after her her health independant psychiatrist agree problems an she received the by were work related stress. After aggravated evaluation, salary with a recommended decrease November dismissal, became ill and left warning and a of future off because of Her doctor first recommended two weeks work. that her health would stress and later notified the Center position outside the permit her return to the Center. No other made available to her. Center was find that defendant’s adverse actions were sub- We health and plaintiffs stantial factor in the deterioration of retalia- because of defendant’s that she left constructively hold that tion. We discharged 659.030(1) (f). violation of ORS lost stipulated plaintiffs
Plaintiff and defendant $24,750. it is argues and benefits were Defendant wages equal $15,896.21, amount.paid a setoff entitled to com 23,1983, June worker’s SAIF in settlement argues.that disputed settle pensation claim claim. that, may not be set off in these circumstances ment
677 event, evidence the claim or presented defendant no about any settlement, if intended as any, how much was about lost without decid- compensation wages. assuming, for Even compensation proper against that a setoff would be a ing, replace wages, no evi- settlement that was intended to lost at presented dence of the settlement and its was trial. purpose allowed; for Petition reconsideration former decision withdrawn; reversed and remanded with instructions to enter $24,750, judgment for for interest from the date plus for original judgment proceedings further opinion. this inconsistent with
BUTTLER, J., dissenting. P.
Because I do not that we de agree review novo this is money damages only action because there evidence support the trial I judgment, court’s dissent.
The majority recognizes, appropriately, there is concerning a substantial question scope our of review in this 659.121(1). brought only case under ORS question in which analyzed case was Wincer v. is Ind. Co., (1980). Stock Paper App 618 P2d 15 case, was reemployment denied after he was recovery released for work an following injury his from com- pensable under Compensation the Workers’ Law. He then an seeking filed action the employer restrain from continu- ing practice, 659.030, that unlawful ORS for reinstatement back pay 659.121(1); with and attorney fees. ORS demanded, denied, 659.415. He but a jury was trial. On the merits, the trial court found that defendant had not vio- lated ORS 659.415.
On appeal, he assigned deny- error to the trial court’s him ing jury trial. In rejecting contention, pointed his out I, that Article section Oregon merely Constitution preserves that right classes of a jury actions in which trial was available when the constitution was We con- adopted. cluded:
“Historically injunctions and reinstatement of contracts equity. were a employment tried in wages matter Back due under an upon contract as a course followed matter of equitable reinstatement of the contract. seeks an injunction and reinstatement of his contract type wages. These remedies were the the attendant back adopted.” 48 equity was sought in at the time the constitution omitted.) (Footnote App 863. at has clearly seeking what Wincer Because relief, held that we also equitable considered historically been correctly. was decided review was de novo. Wincer our Inc., Or Coos-Curry Cooperative, Electric In Cook v. reinstated, plaintiff had been P2d 201 recovery his following position to his former belatedly, albeit brought then an action injury. He compensable *13 we stated analysis question, any pay. back Without novo, We did not citing de Wincer. that our review was simply in nature. In pay equitable seeking back say that an action (1987), the P2d 1006 App Or 738 Surcamp, v. 86 Davis dismissing had erred in the trial court was whether question a claim under trial, failure to state case, after for plaintiffs the defendant had 659.121(1). alleged that the plaintiff The ORS a recovery compensable him after his refused to reinstate employment to find other he had been unable and that injury without only wages, lost sought He specified until a date. that, alleged facts would the We held because reinstatement. reinstatement, complaint his to plaintiff entitled the have sentence, we 656.121(1). final In the under ORS stated a claim de request to review plaintiffs declined the stated that we court find- of trial novo, have the benefit “because we do not court of trial Because the absence App Or at 314. ings.” 86 record, the we review of de novo findings preclude does not merits of the review the we would not have meant that must ruled, the trial had the trial court claim until plaintiffs ORCP 21. done, its dismissal under given court had not Sears, Holien v. say that The seems majority the supports 1292 Co., Or 689 P2d Roebuck relief type equitable is a of awarding pay back proposition is not 659.121(1). at That 672. by ORS provided rem- equitable for provided stating that the statute correct. In statute, the language simply quoted edies, the court including may appropriate, as be equitable relief “such other * * * back with or without to reinstatement not limited but reinstate- Clearly, supplied.) (Emphasis at 95. pay.” remedy. an equitable is or without back ment with for precedent only viable is the my opinion, Wincer 659.121(1) determining proceeding whether a under ORS is nature, I equitable appeal. in de novo review do requiring on majority’s that, share the concern unless hold that an wages equitable nature, in action for back is has no remedy practice. It alleged unlawful say may wages only makes no sense to that one recover back if also seeks reinstatement or an injunction. legislature she (1) clearly provide remedy intended subsection a to one and, position, including pay, in back because it to require makes no sense a to seek an injunction or to get pay, reinstatement in order back could legislature not have intended that result. It is difficult to a imagine case in which a is wages who entitled to that are as lost result an employment practice, 659.030, unlawful reinstatement, would not also be entitled to though even relief not sought. is That is substance of opinion our Coos-Curry Inc., Cook However, Electric Cooperative, supra. case, remedy kind is not one that has been nature; considered historically equitable therefore, we do 19.125(3). not review de novo. ORS contends that defendant discriminated against her complaints BOLI, because she filed two first alleging that defendant against had discriminated race, because of her and the second alleging that defendant against discriminated having filed the com- first plaint. As result of disparate treatment that she received *14 the following complaints, dismissal of two those she claims that she so distraught became that she left employment. her the
Although
majority applies the requirements
proof of a constructive discharge adopted recently in Bratcher
Inc.,
Sky
Chiefs,
by
may differently. dence deny petition I would for recon-
Accordingly, Therefore, I dissent. sideration.