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Ossanna v. Nike, Inc.

Court of Appeals of Oregon

January 31, 2018

Douglas OSSANNA, an individual, Plaintiff-Appellant,
NIKE, INC., an Oregon corporation, Defendant-Respondent,

          Argued and submitted June 28, 2016 .

         Multnomah 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.

          Brenda K. Baumgart argued the cause for respondent. With her on the brief were Amy Joseph Pedersen, Laura E. Rosenbaum, and Stoel Rives LLP.

          Before DeHoog, Presiding Judge, and Armstrong, Judge, and Edmonds, Senior Judge.

         Case Summary:

         Plaintiff 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 verdict.

         [290 Or. 17] Judgment on claims for safety complaint retaliation and whistle blower retaliation reversed and remanded; otherwise affirmed.


         [290 Or. 18]DEHOOG, P. JUDGE.

         Plaintiff 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 safety complaints.

         On 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"[1] 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.

         In 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.

         In 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.

         Shortly 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.

         In the 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.

         In 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).[2] 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 promotion.

         In 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 Oregon OSHA.

         On 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.

         On 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 plaintiff.

         After 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.

         Before 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 ...

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