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Hernandez-Nolt v. Washington County

Court of Appeals of Oregon

November 27, 2013

VERONICA HERNANDEZ-NOLT, Plaintiff-Appellant,
v.
WASHINGTON COUNTY, Defendant-Respondent.

Submitted on October 02, 2013.

Washington County Circuit Court C108326CV, Charles Bailey, Jr., Judge.

Manuel C. Hernandez and Hernandez and Associates, LLC, filed the briefs for appellant.

William G. Blair filed the brief for respondent.

Before Ortega, Presiding Judge, and Hadlock, Judge, and Edmonds, Senior Judge.

HADLOCK, J.

Plaintiff appeals a general judgment in this wrongful discharge case, assigning error to the trial court's grant of summary judgment in favor of defendant Washington County. The trial court entered judgment for the county based on its determination that plaintiff's claim was untimely because it had accrued in April 2003, more than two years before plaintiff filed her claim. We conclude that the summary judgment record includes evidence from which a factfinder could determine that plaintiff's claim did not accrue until after the pertinent date in April 2003; as a result, the county did not establish that it was entitled to summary judgment on the ground that the claim was untimely. Accordingly, we reverse and remand.

Because the parties' arguments focus on when plaintiff's wrongful discharge claim accrued, we describe the elements of such a claim at the outset. An allegedly wrongful discharge can be either actual or "constructive." Sheets v. Knight, 308 Or 220, 226-28, 779 P.2d 1000 (1989). A plaintiff can prove that a constructive discharge occurred by showing that

"(1) the employer intentionally created or intentionally maintained specified working condition(s); (2) those working conditions were so intolerable that a reasonable person in the employee's position would have resigned because of them; (3) the employer desired to cause the employee to leave employment as a result of those working conditions or knew that the employee was certain, or substantially certain, to leave employment as a result of those working conditions; and (4) the employee did leave the employment as a result of those working conditions."

McGanty v. Staudenraus, 321 Or 532, 557, 901 P.2d 841 (1995) (footnotes and emphasis omitted). The fourth element itself consists of two separate requirements--that "the employee did leave the employment" and that he or she did so "as a result of those working conditions." Thus, the determination of when an employee was constructively discharged depends on a finding about when that employee left the employment. A wrongful discharge claim does not accrue, and the statute of limitations does not begin to run, until the discharge happens. Stupek v. Wyle Laboratories Corp., 327 Or 433, 438, 963 P.2d 678 (1998) ("[T]here is no claim until the discharge occurs.").

The facts pertinent to our analysis relate to that last point: the date on which any constructive discharge occurred, i.e., when plaintiff left her employment with the county. In analyzing whether the county was entitled to summary judgment, we view those facts in the light most favorable to plaintiff, the nonmoving party, drawing all reasonable inferences in her favor. Jones v. General Motors Corp., 325 Or 404, 408, 420, 939 P.2d 608 (1997). The following description of the facts is presented in that light.

Plaintiff worked for the county for over 10 years, in various departments. In 2002, while working in the county's Department of Housing Services (DHS), she began to suspect that her supervisors were retaliating against her because she had communicated with a federal compliance officer about her role at DHS. Plaintiff expressed her concerns to her supervisors and the DHS director but did not notice an improvement in her working conditions. She felt that, "[b]ecause of the stress of the hostile work environment at DHS, [she] was forced to look for other employment." Consequently, plaintiff applied for a position in the county's Department of Disability, Aging and Veterans' Services (DAVS). She got the job and started working at DAVS in April 2003.

According to plaintiff's supervisor at DAVS, because plaintiff was "in the career service of Washington County, but hired into a new position within the County's service, " a county personnel rule provided that plaintiff was subject to a one-year probationary period and would automatically be reinstated to her former position if her probationary position at DAVS was terminated. That rule was triggered in August 2003, when plaintiff's probationary position at DAVS was terminated, and she was reinstated to her former position at DHS. Instead of returning to work at DHS, however, plaintiff sought and was granted leave under the federal Family and Medical Leave Act (FMLA). The day before plaintiff's leave ended, her attorney contacted the county to determine whether she could obtain additional leave without pay or a position in a different department so she would not have to return to DHS. The county responded by asking for plaintiff's justification for additional leave and stating that plaintiff would have to apply for another position if she wanted to be considered for one; the county also stated that plaintiff's supervisors at DHS were willing to work with her if she returned.

Although plaintiff's FMLA leave ended in late December 2003, she did not return to work. In January 2004, the county sent plaintiff a letter stating that, unless an unavoidable situation prevented her from obtaining authorization for her absence, she would be considered to have voluntarily ...


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