Argued and Submitted July 17, 2012
Multnomah County Circuit Court. 090709873. Thomas M. Christ, Judge pro tempore.
Michael G. Hanlon argued the cause and filed the briefs for appellant.
Dennis M. Vannier argued the cause and filed the brief for respondent.
Before Armstrong, Presiding Judge, and Duncan, Judge, and Brewer, Judge pro tempore.
[261 Or.App. 366] ARMSTRONG, P. J.
This case arises out of plaintiff's claims for wrongful discharge and unpaid wages relating to his employment as communications director for former Portland Mayor Sam Adams. Plaintiff appeals a judgment of dismissal entered by the trial court after the court granted defendant's motions for summary judgment on those claims. He argues that the court erred in granting summary judgment because triable issues of fact exist with regard to both claims. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Reviewing the record in the light most favorable to plaintiff--the nonmoving party--and drawing all reasonable inferences in his favor, Jones v. General Motors Corp., 325 Ore. 404, 408, 939 P.2d 608 (1997), the facts pertinent to our review are as follows.
Plaintiff was hired by defendant City of Portland to work as communications director for then mayor-elect Sam Adams. At the time, Adams was on the Portland City Council and was scheduled to take office as mayor on January 1, 2009. Adams had instructed Tom Miller, his chief of staff, to oversee the hiring process for his future mayoral staff, and Miller had the authority to hire staff to begin work upon Adams's assumption of office on January 1, 2009.
Plaintiff interviewed for the communications director position in October 2008. At the time, plaintiff had been employed as a reporter for the Oregonian for approximately 23 years but had accepted a " buyout" ; his scheduled separation date from the Oregonian was November 8, 2008. During the interview process, Miller explained to plaintiff that the position would start in January 2009, when Adams took office as mayor. As plaintiff later testified, " [i]t was made clear when the position would start," and that he " would go on the payroll January 1st or, well, the 1st or the 2nd. The 1st was a holiday." Miller also told plaintiff that the offer was contingent on plaintiff working in November and December to " get[ ] a feel for the office and the job" and that plaintiff would not be paid for that time. Because of that arrangement, plaintiff terminated his employment with the Oregonian two weeks earlier than he had planned.
[261 Or.App. 367] Plaintiff accepted the offer and began going to Adams's office on November 2, 2008. He was assigned an office in the Portland Building, introduced to people he would be working with, and attended staff meetings. He also helped with various projects but did not do any work communicating with the media. At Miller's direction, plaintiff also extended a previously scheduled family vacation to San Francisco in December and spent half a day observing San Francisco Mayor Gavin Newsom's communications staff's operations.
On January 2, 2009, plaintiff started working as Adams's communications director. He read and signed an employment agreement explaining that he was an " at-will" employee and confirming that his " First Day of Employment" was January 2, 2009. His job as communications director was to speak on the mayor's behalf; his written job description stated, " The Communications Director is responsible for all communications on the mayor's behalf, and manages the New Media Director."
Soon thereafter, in early January, allegations surfaced in the press that Adams had had a sexual relationship with Beau Breedlove, a legislative intern. Similar allegations had been raised in 2007 and denied by Adams. On January 15, 2009, a Willamette Week reporter interviewed Adams at City
Hall. Plaintiff and another member of Adams's staff attended the interview. At that time, Adams again denied any sexual contact or sexual relationship with Breedlove. Four days later, however, Adams admitted to Willamette Week that he had had a sexual relationship with Breedlove. Adams then called plaintiff, and plaintiff prepared a news release about Adams's relationship with Breedlove and distributed it to the media. The following day, January 20, 2009, Adams held a press conference at City Hall in which he acknowledged having made false statements about his relationship with Breedlove and apologized to the public for having done that. He admitted to a sexual affair with Breedlove for about two months in 2005 and to having asked Breedlove to lie about the relationship.
That acknowledgment and apology generated intense media scrutiny. For three days, January 21 to 23, 2009, [261 Or.App. 368] Adams did not come into the office but remained at home trying to decide whether he should stay in office. He met with several members of his staff during that time, as well as members of the community, including former Portland Mayor Vera Katz and plaintiff's minister. During the three-day interval that Adams was out of the office, Miller asked plaintiff to tell the press
" that Sam was at home. He was at home conducting City business, meeting with people in the community."
Plaintiff did so. Plaintiff also received media requests for Adams's schedule during that time. Although the schedule existed, Miller told plaintiff to tell the media that it was " not available."
Sometime during that period, a reporter for the Oregonian also asked plaintiff about the public reaction that the mayor's office had been getting about the Breedlove matter; in response, plaintiff gave the reporter information that a staff member in Adams's office had compiled that indicated that " 65 or something percent of the calls were a negative response to Sam." According to plaintiff, Miller " clearly was not happy" that plaintiff had given the reporter that information and later told the staff person to tell plaintiff in the future that such information did not exist or had not been compiled.
On January 22, Adams met with his staff at Miller's house. Adams apologized to the staff for his behavior and agreed to respond to any of their questions or concerns. Plaintiff asked Adams whether he had engaged in any " flirting or touching" with Breedlove when Breedlove was under 18 years of age. Adams said that he had not. Then, on January 25, 2009, plaintiff read an article in the Oregonian reporting an interview with Breedlove in which Breedlove had described two " kissing" incidents with Adams when Breedlove was 17 years old. After reading the article, plaintiff " determined that I could no longer tolerate a workplace where I was repeatedly given false or misleading information and then was expected to repeat these falsehoods to the public on the mayor's behalf as his spokesperson in response to media inquiries."
[261 Or.App. 369] Plaintiff prepared a letter of resignation and submitted it to Miller the next morning. Late in the day, he also met with Adams, telling Adams that he was resigning " because of the lies." He specified that Adams had lied to him in the January 15, 2009, meeting with Willamette Week, when Adams had denied having had any sexual contact with Breedlove, and in the January 22, 2009, meeting when Adams had denied any flirting or touching when Breedlove was a minor. Adams asked plaintiff to reconsider his resignation and remain in his position. Plaintiff replied that he had made his decision and that there " was no turning back."
The day of plaintiff's resignation, in response to several inquiries by a Time magazine reporter about Adams's availability for an interview, Miller told plaintiff to tell the reporter that Adams was not in the office. However, unbeknownst to plaintiff, " Adams at various times throughout the day was present in City Hall."
Plaintiff subsequently filed this action, asserting claims for, among other things, wrongful discharge and unpaid wages.
With regard to his wrongful-discharge claim, plaintiff alleged the following, in part, in his ...