and submitted June 28, 2016 .
County Circuit Court 130101385 Kathleen M. Dailey, Judge.
Michael J. Estok argued the cause for appellant. With him on
the opening brief were Glen McClendon and Lindsay Hart, LLP.
With them on the reply brief was Alice Newlin.
K. Baumgart argued the cause for respondent. With her on the
brief were Amy Joseph Pedersen, Laura E. Rosenbaum, and Stoel
DeHoog, Presiding Judge, and Armstrong, Judge, and Edmonds,
appeals a judgment entered after a jury found in favor of
defendant in plaintiff's suit alleging that he was
wrongfully terminated in retaliation for making safety
complaints. Defendant assigns error to the trial court's
refusal to instruct the jury on a "cat's paw"
theory, which would have allowed his supervisors'
allegedly retaliatory motives to be imputed to the corporate
decision-maker who ultimately fried him. Held: The
trial court erred in failing to give plaintiff's
requested instruction. Plaintiff's proposed instruction
was a correct statement of law, the pleadings and evidence
supported such an instruction, and the substance of the
instruction was not fully covered by the other instructions
given by the court. Moreover, the failure to give the
instruction likely created an erroneous impression of the law
in the minds of the jurors, which may have affected their
Or. 17] Judgment on claims for safety complaint retaliation
and whistle blower retaliation reversed and remanded;
Or. 18]DEHOOG, P. JUDGE.
is a licensed electrician who previously worked for
defendant, Nike, Inc., in its maintenance department.
Defendant fired plaintiff after he used one of
defendant's on-site basketball courts at a prohibited
time. In response, plaintiff sued defendant for, among other
things, statutory safety complaint and whistle blower
retaliation. Plaintiff alleged that defendant's
explanation for terminating his employment was a pretext, and
that the real reason that defendant discharged him was to
retaliate for safety complaints that he had made about
defendant's electrician apprenticeship program. Defendant
responded that its decision to fire plaintiff resulted from
an independent investigation, unrelated to plaintiff's
appeal, plaintiff argues that, in light of evidence that his
supervisors possessed a retaliatory motive and improperly
influenced the investigation, the trial court erred in
refusing his request for a special jury instruction.
Specifically, plaintiff contends that he was entitled to have
the jury instructed on a "cat's
paw" theory, which would have allowed his
supervisors' improper motives to be imputed to the
corporate decision-maker who ultimately fired him. Defendant
disagrees, arguing that the cat's paw instruction was not
warranted and that, because the court's instructions on
corporate agency and substantial factor causation adequately
instructed the jury regarding plaintiff's theory of
liability, the court did not err even if the requested
instruction was warranted. For the reasons that follow, we
conclude that the trial court erred in failing to give
plaintiff's requested instruction. Accordingly, we
reverse and remand.
reviewing whether a trial court has erred in denying a
requested jury instruction, we consider the evidence at [290
Or. 19] trial and any resulting inferences in the light most
favorable to giving the instruction. Jett v. Ford Motor
Company. 192 Or.App. 113, 120, 84 P.3d 219, rev
den, 337 Or. 160 (2004). If, after review, we conclude
that the trial court has erred, we consider the record as a
whole to determine whether the error was nonetheless
harmless. See id. at 118. We state the facts
consistently with those standards.
2007, defendant hired plaintiff, a licensed electrician, to
work in its maintenance department. In 2009, defendant
established an electrician apprenticeship program (EAP) so
that several of its employees could obtain a Limited
Maintenance Electrician license. Consistent with various
state law requirements, defendant's program required each
apprentice to take classes at Portland Community College
(PCC) and to complete 4, 000 hours of on-the-job training
under the supervision of a licensed electrician. PCC's
Metro Limited Maintenance Electrician Joint Apprentice
Training Committee (JATC) administered the program.
after defendant commenced its apprenticeship program,
plaintiff discovered that apprentices were working without
the direct supervision required for all on-the-job training
hours. Plaintiff reported safety concerns related to the
apprentices working without supervision to individuals in
defendant's chain of command. First, plaintiff spoke with
his direct supervisor, Dan Delgado, who managed the EAP.
Then, in May 2011, plaintiff shared multiple safety concerns
with Nellie St. Jacques, defendant's facilities director.
In addition to his concerns about the EAP, plaintiff
mentioned to St. Jacques that some employees in the
maintenance department had been drinking at lunch and then
driving company vehicles. St. Jacques addressed the employee
drinking issue by firing five maintenance department
employees, but she did not address plaintiff's complaint
about the EAP.
following months, two workplace incidents raised further
concerns for plaintiff. Each incident involved electrical
work by unsupervised apprentices that, in plaintiff's
view, had created a substantial risk of electrocution or
other serious injury to the apprentices or to other workers.
Plaintiff shared his concerns regarding the lack of direct
[290 Or. 20] supervision with Delgado. Plaintiff and a fellow
electrician, Shawn Hod son, later raised their safety
concerns with Stephanie Hammer, defendant's risk manager
for environmental safety. The investigation that followed was
limited to getting Delgado's assurances that the EAP was
in compliance with state regulations. Plaintiff and Hodson
also made the same safety complaints to Deb Hellmer-Steele,
who was the senior director of global corporate services and
St. Jacques's superior. Hellmer-Steele responded by
directing St. Jacques to investigate those complaints. But,
as with each of the previous complaints, plaintiff did not
observe any significant changes in response to his concerns.
December 2011, defendant hired Mark Treppens as its
maintenance operations manager. After being hired, Treppens
learned of plaintiff's safety concerns and later wrote an
email to himself noting that an apprentice had reported
overhearing plaintiff and Hodson discuss plans to file a
complaint with Oregon Occupational Safety and Health
Administration (OSHA). One of Treppens's first tasks in his
new position was to replace a supervisor fired by St. Jacques
in response to plaintiff's report about employee
drinking. Treppens told plaintiff that he had no chance of
getting the supervisor position himself "because of the
past." Plaintiff understood Treppens's mention of
"the past" to refer to his past safety complaints.
Plaintiff conveyed to St. Jacques what Treppens had said
about the promotion, prompting Treppens to call plaintiff
into his office where he denied having made the remark.
Although Treppens later interviewed plaintiff for the
supervisor position, he ultimately passed him over for the
February 2012, Hodson resigned. In an exit interview with
Randi Miller, an employee relations manager, Hodson again
expressed concerns regarding the EAP. Miller asked plaintiff
about Hodson's complaints and plaintiff confirmed that
they were valid. After resigning, Hodson filed safety
complaints regarding the program with both Oregon OSHA and
JATC. In May 2012, JATC followed [290 Or. 21] up with a site
visit to the Nike campus to review the EAR During the site
visit, Delgado told Katrina Cloud, the JATC administrator,
that he intended to continue operating the EAP according to
"business as usual, " and that he did not plan any
changes in the program to address the safety concerns that
plaintiff and others had raised. Following Cloud's visit,
plaintiff contacted her and repeated his safety concerns
directly to her; he also filed his own safety complaint with
December 27, 2012, the Nike campus was in "Power
Down" mode for the holidays, and most buildings on
campus were closed. Plaintiff had taken a vacation day but
was called into work because two contractors could not access
the "Bo Jackson" building to complete a maintenance
project. After reviewing their work, plaintiff invited the
contractors to shoot baskets in the Bo Jackson gym. Plaintiff
used his employee badge to gain access to that part of the
building. When the three entered the gym, they noticed that
the floor had recently been varnished but concluded that
their use would not damage the floor, because it was no
longer tacky. They were joined by plaintiff's son, who
lived nearby, and the four shot baskets for about 20 minutes.
January 7, 2013, Delgado and Treppens asked plaintiff to
explain what he had been doing in the Bo Jackson gym during
PowerDown, and implied that the gym floor had been damaged by
his use. Plaintiff ultimately acknowledged that he had used
his access badge to allow the others to play basketball, but
denied that they had damaged the floor. Two days later,
Delgado and Treppens called plaintiff into another meeting,
which ended with plaintiff agreeing to resign his position
with Nike. Later that day, however, plaintiff and his wife
went to the employee relations department and told Miller
that he had resigned only because he felt coerced, and that
he wanted to rescind his resignation. Miller responded that,
if plaintiff did not want to resign, he would be fired, but
told him that he could appeal that decision within Nike.
Plaintiff pursued that appeal and was placed on paid
suspension while Miller conducted an investigation into the
grounds for his termination. As further explained below,
Miller's investigation consisted primarily of obtaining
information from Treppens and Delgado, whom [290 Or. 22]
plaintiff alleged to be motivated to retaliate against him
for his safety complaints. Despite plaintiff's
retaliation claims, Miller's investigation led her to
conclude that plaintiff's termination had been justified,
because he had committed a serious breach of trust and
violated defendant's code of ethics and other corporate
policies by using the Bo Jackson gym when it was closed.
Ultimately, however, St. Jacques made the final decision to
terminate plaintiff, based in part on Miller's findings
and in part on information that St. Jacques herself obtained
directly from Treppens. St. Jacques did not interview
St. Jacques fired plaintiff, he sued defendant and asserted
four claims: (1) safety complaint retaliation under ORS
654.062(5); (2) whistle blower retaliation under ORS
659A.199; (3) common law wrongful discharge; and (4) a state
law wage and hour claim. The parties settled plaintiffs wage
and hour claim and defendant successfully moved for summary
judgment on plaintiff's common law claim, leaving only
the statutory retaliation claims for trial. In support of
those claims, plaintiff alleged multiple adverse employment
actions by defendant, including, among other actions, denying
him a promotion to supervisor and terminating his employment.
As to St. Jacques's ultimate decision to uphold his
termination, plaintiff presented alternative theories as to
how that decision had been retaliatory: Either St. Jacques
herself had held a retaliatory motive to terminate plaintiff
because of his earlier internal and external safety
complaints, or, if St. Jacques had not personally harbored a
retaliatory motive, then she had based her decision to
terminate him on information provided by Treppens and
Delgado, who themselves were motivated to retaliate against
him for those reasons.
trial, plaintiff requested a special jury instruction
entitled "Imputation of Subordinate Bias."
According to plaintiff, his requested instruction was
warranted in light of his cat's paw theory of
retaliation, namely, that Treppens and Delgado had improperly
influenced St. Jacques's ultimate decision to terminate
his employment. Following discussions with the court, the
parties settled on the following instruction:
[290 Or. 23] "Imputation of Subordinate Bias
"Nike contends that Nellie St. Jacques was Nike's
principal decision-maker regarding [plaintiffs] termination.
You may impute to Ms. St. Jacques any biased retaliatory
motive against [plaintiff] held by a subordinate of Ms. St.
Jacques's at Nike, if you find that her adverse
employment decision was not actually independent because a
subordinate had a biased retaliatory motive against
[plaintiff] and that [the] same subordinate ...