Argued and submitted on March 22, 2012.
Malheur County Circuit Court 09037252L J. Burdette Pratt, Judge.
Elizabeth A. McKanna argued the cause for appellant. With her on the briefs was McKanna Bishop Joffe & Arms, LLP.
Cecil A. Reniche-Smith, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Brewer, Judge pro tempore.
ORTEGA, P. J.
Plaintiff appeals from a supplemental judgment that granted attorney fees to the state after a jury returned a defense verdict in plaintiff's suit against the state for sex discrimination and unlawful retaliation. After the jury returned its verdict, the trial court submitted a "special verdict form" to the jury that asked it to answer several questions regarding plaintiff's veracity and whether her claims were "frivolous, unreasonable, and brought in bad faith." The jury returned the special verdict, indicating that it found that plaintiff's statements to her employer and to the court about the incidents underlying her claims were untruthful. The state, after a general judgment was entered, sought an enhanced prevailing party fee, costs, and attorney fees under Title VII of the Civil Rights Act of 1964, 42 USC § 2000e-5(k). The trial court, after independently concluding that plaintiffs' claims were "unreasonable, frivolous, and without foundation, " awarded the state a portion of the attorney fees sought and entered a supplemental judgment. Plaintiff appeals that judgment, challenging the trial court's submission of the special verdict form to the jury, as well as the court's award of attorney fees. We reverse the award of attorney fees, concluding that the trial court erred in determining that plaintiff's claims were "unreasonable, frivolous, and without foundation."
Plaintiff, an employee of the Oregon Department of Corrections (DOC) at the Snake River Correctional Institution (SRCI), filed a complaint alleging unlawful employment practices by the state, raising state and federal claims of unlawful sex discrimination and unlawful retaliation for opposing unlawful employment practices, as well as a claim for intentional infliction of emotional distress. Plaintiff's allegations of discrimination were based on negative employment actions taken against her after three separate incidents at work. Generally, those incidents involved (1) a physical altercation with a male coworker, (2) accusations that plaintiff made an anonymous call to a local newspaper to report misbehavior by a DOC employee, and (3) an incident in the SRCI mailroom.
The following facts are uncontroverted. In April 2007, plaintiff happened upon a set of keys that were unsecured, which was a violation of DOC policy. When she picked up the keys to make a security violation report, a male coworker, who was responsible for the keys, grabbed her wrist. Plaintiff and the male coworker differed on how much force was applied to plaintiff's arm during the incident. She then filed a worker's compensation claim and was assigned light duty by DOC for a period of time. Plaintiff and the male coworker attended an informal mediation, at the end of which they both agreed that they could continue to work together. The male coworker was not disciplined for the incident.
Several days after that confrontation, a local newspaper reporter contacted a local food processing plant that employed DOC work crews to inquire about an anonymous report that a male DOC employee had urinated in a drain at the plant. When initially asked about the incident, the offending coworker told his supervisor that he had poured the contents of a soda bottle down the drain. The coworker admitted to the incident when directly asked if he had urinated in the drain. The details of that incident were well known within DOC and resulted in a letter of apology from DOC to the plant's owner. Further, the offending employee had received a "non-disciplinary letter of instruction" and no further discipline for his actions.
Almost immediately after the report, DOC officials "pointed the finger" at plaintiff as the source of the anonymous tip and launched an investigation. Plaintiff was reassigned to the mailroom a few days later, and she asserted that the reassignment was stigmatizing and cost her the opportunity to work overtime and holidays. After being reassigned, plaintiff lodged an internal complaint of sex discrimination, challenging her reassignment and DOC's failure to discipline the two male coworkers involved in the prior incidents. Her internal complaint eventually resulted in a determination by DOC that there was not sufficient evidence to substantiate plaintiff's claim.
About two weeks after her reassignment and the filing of her internal complaint, plaintiff was suffering some ill effects from estrogen treatment that she was receiving, which led to a discussion between plaintiff and some female coworkers in the mailroom about breast discomfort. That conversation occurred in the presence of a male employee. At some point in the discussion, plaintiff asked one or more of the female coworkers to touch her breast to confirm that it was unusually swollen, and at least one of them did so. A supervisor overheard part of the conversation and, upon learning the full extent of it, chastised the employees and initiated a "hostile work environment" investigation against plaintiff. Sometime later, plaintiff received a letter of "Initiation of Pre-dismissal Process" related to the mailroom incident. That disciplinary process resulted in a one-step pay reduction for six months, but after plaintiff grieved the pay reduction through her union, DOC withdrew the reduction and replaced it with a letter of reprimand.
In the immediate aftermath of the mailroom incident, plaintiff was separated from other staff to perform mail sorting duties. Plaintiff objected, requested that she be sent home, and was placed on paid administrative leave, where she remained for three-and-a-half months while DOC investigated the mailroom incident.
Some months later, plaintiff filed a complaint with the Civil Rights Division of the Oregon Bureau of Labor and Industries (BOLI), alleging that she was subject to different treatment and discipline based on her gender and in retaliation for whistle-blowing, invoking the worker's compensation system, and reporting unlawful employment practices and gender discrimination. BOLI returned a determination of "substantial evidence of an unlawful employment practice" in violation of ORS 659A.030(1)(b) related to a claim of ...