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Kemp v. Masterbrand Cabinets, Inc.

Court of Appeals of Oregon

July 17, 2013

KATIE J. KEMP, Plaintiff-Respondent,
v.
MASTERBRAND CABINETS, INC., a Delaware corporation, Defendant-Appellant, and LINDA L. DURRETT and CLARENCE BECK, Defendants.

Argued and submitted on January 24, 2012.

Josephine County Circuit Court 05CV0589 Thomas M. Hull, Judge.

Mark J. Romaniuk argued the cause for appellant. On the briefs was William H. Martin.

Mark Lansing argued the cause for respondent. With him on the brief were Jason S. Brouhard and Hughes, Rote, Brouhard & Thorpe, LLP.

Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Brewer, Judge pro tempore. [*]

ORTEGA, P. J.

Plaintiff brought an action against her former employer, defendant MasterBrand Cabinets, Inc. ("MasterBrand"), for alleged pregnancy-based sex discrimination. She asserted two statutory claims--unlawful termination under ORS 659A.030(1)(a)[1] and retaliatory discharge under ORS 659A.030(1)(f)[2]--and a common-law claim for wrongful discharge. The two statutory claims were tried to the court, and the wrongful discharge claim was tried to the jury; plaintiff prevailed on all three claims. MasterBrand now appeals, raising four assignments of error, and plaintiff raises one cross-assignment of error. We write to address only the first three assignments of error, and reject the remaining assignment and the cross-assignment without further discussion.

We reject all three of the remaining assignments of error as well. In its first assignment of error, MasterBrand asserts that the trial court erred in denying its motion to dismiss plaintiff's wrongful discharge claim because plaintiff had adequate statutory remedies; we conclude that plaintiff's statutory remedies did not displace her common-law claim. In its second assignment of error, MasterBrand asserts that the trial court erred in granting attorney fees to plaintiff under ORS 20.107 for her wrongful discharge claim; we conclude that the fee award was not erroneous. In its third assignment of error, MasterBrand asserts that the trial court erred in denying its motion in limine regarding its later discipline and termination of an employee, Beck, who was involved in the events that led to plaintiff's termination; we conclude that any error in admitting that evidence was harmless. Accordingly, we affirm the trial court's judgment.

We begin with a review of the pertinent facts, as relevant to understand plaintiff's claims and to evaluate the court's ruling on the motion in limine. MasterBrand manufactures kitchen and bathroom cabinetry. Plaintiff began working for MasterBrand as a temporary employee in late 2003, and was hired as a permanent employee in May 2004. As a door puller in the warehouse on "second shift" (from 3:15 p.m. until 11:45 p.m.), plaintiff's duties included stocking, pulling, and transporting cabinet doors from the warehouse to the prep department. On Mondays through Thursdays, "third shift" followed "second shift" on each of those evenings. On Friday evenings, "second shift" was the last shift of the day, and Fridays were considered the end of a work week for "second shift" workers. The next shift to follow was a "third shift" on the following Sunday evening. Central to the parties' dispute is the significance of plaintiff's departure from work at the end of her shift on March 18, 2005.

According to MasterBrand, there was a "standing order" that on Friday evenings, "second shift" workers were often required to work overtime in order to ensure that the materials were staged for the start of production the following Sunday evening. That "Friday night rule, " according to MasterBrand, was repeatedly communicated to employees at daily production meetings, and employees were required to "check in" with their team leader before leaving at the end of a Friday shift.

Plaintiff has a different view of MasterBrand's policies and procedures. MasterBrand's employee handbook does not provide a written version of the "Friday night rule." Rather, it provides generally that employees "scan out immediately after their shift ends unless authorized in advance by their Team Leader to work longer than their assigned shift for that day." The handbook also states that overtime (working over eight hours in one day) "can only be worked with prior authorization from a Team Leader, " and the handbook states that "[e]very reasonable effort will be made to give as much advance notice of overtime as possible." In cases in which an employee leaves early, the handbook provides that a deduction can be made from a "no fault" time bank, but that "no call, no show" situations result in a written warning. Further, the handbook provides that supervisors are prohibited from altering written policies.

According to plaintiff's supervisor and team leader, Durrett, on the Friday at issue, all second-shift employees were informed that they would have to work overtime that evening. However, some of the employees worked overtime and some did not, and none of them "checked in" with Durrett before leaving their shift that evening, nor did Durrett herself communicate to plaintiff that she needed to work overtime. After eight hours that evening, plaintiff, along with three or four other employees, left work at the end of the regular eight-hour shift. According to Beck, an employee who assisted Durrett, before plaintiff left that evening, Beck had reminded her about the Friday night rule and asked whether she had obtained permission from Durrett to leave after eight hours. According to Beck, plaintiff responded that she did receive permission to leave, but he later confirmed with Durrett that she had not given plaintiff such permission. Shortly thereafter, Durrett emailed human resources (HR) representatives Reed and Gatske, stating that plaintiff had not been excused from work that evening and that plaintiff left "at 8 hours." Durrett noted that three months before, plaintiff had been coached about the policy not to leave early. According to plaintiff, however, that coaching incident never occurred and, in all events, plaintiff never received a written warning about either alleged incident.

Plaintiff was terminated the following week. The company's termination report states:

"On March 18, 2005, [plaintiff] left work without asking the team leader for approval to leave. [Plaintiff] has been coached on more than one occasion regarding the need for the team to work [overtime] on Friday nights because there is not a third shift to pick up [what] is not finished. [Plaintiff] chose at the end of eight hours to clock out and leave her job. [Plaintiff] has refused to follow her team leader's instructions. [Plaintiff's] actions on 3/18/05 violate the following [MasterBrand] policies, which state that the following actions will not be tolerated:
"1. Work rule #2: of the Grants Pass Hourly Handbook which says, 'idleness on the job, inattention to job duties, wasting time, sleeping on the job or leaving the ...

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