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McLaughlin v. Wilson

Court of Appeals of Oregon

May 31, 2018

Nicole McLAUGHLIN, Plaintiff-Appellant,
Kenneth WILSON, M.D., Defendant-Respondent.

          Argued and submitted April 11, 2017

          Marion County Circuit Court 13C21746; A160000 Tracy A. Prall, Judge.

          Matthew Scherer argued the cause for appellant. On the briefs were Courtney Angeli and Buchanan Angeli Altschul & Sullivan LLP.

          Thomas M. Christ argued the cause for respondent. With him on the brief was Cosgrave Vergeer Kester LLP.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Stephanie L. Striffer, Assistant Attorney General, fled the brief amicus curiae for Oregon Bureau of Labor and Industries.

          Shenoa Payne fled the brief amicus curiae for Oregon Trial Lawyers Association.

          Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge.[*]

         [292 Or. 102] Case Summary:

         Plaintiff appeals a judgment dismissing her claim for unlawful employment retaliation, ORS 659A.030(1)(f), for failure to state a claim, ORCP 21 A(8). Plaintiff brought the claim against defendant, her former coworker, in response to defendant's alleged retaliatory conduct that occurred after plaintiff and defendant stopped working for the same employer. Defendant moved to dismiss the claim on the ground that ORS 659A.030(1)(f) does not cover his alleged conduct, because, first, the statute regulates only employers, not coworkers, and second, the provision regulates only conduct affecting terms, conditions, or privileges of employment, which did not occur here because plaintiff was not employed at the time of the alleged retaliation. The trial court dismissed the claim without explaining its reasoning. On appeal, plaintiff argues that the trial court erred because ORS 659A.030(1)(f) encompasses defendant's alleged conduct. Held: The trial court erred in dismissing the employment retaliation claim. First, ORS 659A.030(1)(f) regulates individual coworkers and supervisors like defendant because the provision expressly applies to “any person.” Second, the statute regulates the type of post-employment conduct alleged here because ORS 659A.030(1)(f), in context, broadly protects access to the remedial anti-discrimination mechanisms throughout the rest of the statute.

         Reversed and remanded as to retaliation claim; otherwise affirmed

          [292 Or. 103] GARRETT, J.

         ORS 659A.030(1)(f) prohibits certain retaliatory employment actions by "any person." In this case, plaintiff asserted a claim under that statute against defendant, an individual with whom she previously worked. Defendant argued that the statute did not cover his conduct as alleged. The trial court agreed, and dismissed the claim under ORCP 21 A(8). On appeal, plaintiff assigns error to the trial court's ruling, arguing that the court misconstrued the statute. We conclude that the trial court erred, and therefore reverse and remand as to the retaliation claim, and otherwise affirm.

         Reviewing the court's grant of defendant's motion to dismiss, we assume the facts alleged in plaintiff's complaint to be true and draw all reasonable inferences in plaintiff's favor. Caba v. Barker, 341 Or. 534, 536, 145 P.3d 174 (2006).

         Plaintiff worked as a medical assistant at Hope Orthopedics, where she assisted defendant, an orthopedic surgeon, on a full-time basis. Initially, defendant and plaintiff had a good working relationship. When plaintiff applied for admission to Willamette University for a graduate degree program, defendant wrote her a glowing reference that emphasized her excellent work performance. After a few months, however, defendant began to harass plaintiff both sexually and on the basis of religion. Plaintiff notified Hope of defendant's behavior, and Hope conducted an investigation.

         Meanwhile, plaintiff was accepted into the graduate program at Willamette. Soon after she resigned her position at Hope to enroll in the program, Hope closed its investigation of defendant's behavior, and defendant resigned from Hope. Shortly thereafter, defendant visited an administrator at Willamette and made disparaging remarks about plaintiff to the effect that she routinely made false allegations that ruined people's careers to get financial settlements. Defendant's conduct caused unwanted and unflattering attention to plaintiff and caused her mental and emotional distress.

         [292 Or. 104] Plaintiff sued defendant for defamation, intentional infliction of emotional distress, intentional interference with business relationships, and unlawful employment retaliation, ORS 659A.030(1)(f). In her complaint, plaintiff alleged that, at the times relevant to her allegations, defendant was a Hope employee, and effectively her supervisor. Plaintiff did not, however, allege that defendant was her employer.

         Defendant moved to dismiss the retaliation claim under ORCP 21 A(8) (failure to state ultimate facts sufficient to constitute a claim), primarily arguing that ORS 659A.030(1)(f) applies only to retaliation by an employer against an employee, and that plaintiff had failed to allege sufficient facts in her complaint to establish that defendant was her employer. Defendant also argued that his conduct was not "discrimination" for purposes of ORS 659A.030 (1)(f) because it did not adversely affect plaintiff's terms, conditions, or privileges of employment. The trial court granted defendant's motion and dismissed plaintiff's retaliation claim in a letter opinion and order that did not explain the court's reasoning. Plaintiff's claims for defamation and emotional distress proceeded to trial; a jury found in her favor on her defamation claim and in defendant's favor on the emotional distress claim.[1] Plaintiff now appeals the general judgment, challenging the trial court's dismissal of the retaliation claim.

         On appeal, plaintiff argues that ORS 659A.030 (1)(f) applies to defendant because he is a "person." Defendant argues that plaintiff's proposed construction is not supported by the statutory text or legislative history.

         In response to defendant's arguments regarding ORS 659A.030(1)(f), plaintiff also argues in the alternative that defendant was, in fact, her employer. Although, if that were true, it would obviate the need to consider the parties' other arguments, the record shows that plaintiff failed to preserve her alternative argument because plaintiff, in opposing defendant's motion to dismiss, never argued that [292 Or. 105] defendant was her employer, and specifically contended that she did not need to make that argument under the statute. In doing so, plaintiff prevented the trial court from addressing the issue. We accordingly decline to consider her argument for the first time on appeal. See State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000) ("[A] party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted."). We thus turn to the parties' primary arguments about ORS 659A.030(1)(f).

         We review a trial court's dismissal of a claim under ORCP 21 A(8) for legal error. Nationwide Ins. Co. of America v. TriMet, 264 Or.App. 714, 715, 333 P.3d 1174 (2014). We also review a trial court's interpretation of a statute for legal error. State v. Urie, 268 Or.App. 362, 363, 341 P.3d 855 (2014).

         In construing a statute, we first consider the statute's text and context. State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009). The context of a statute "may include other provisions of the same statute and related statutes * * * and the historical context of the relevant enactments." Young v. State of Oregon, 161 Or.App. 32, 35, 983 P.2d 1044, rev den, 329 Or. 447 (1999) (internal citations omitted); see also State v. ZiskalGarza, 355 Or. 799, 806, 334 P.3d 964 (2014) ("Analysis of the context of a statute may include prior versions of the statute."). In construing the text and context, we neither "insert what has been omitted" nor "omit what has been inserted." ORS 174.010.

         We may also consider legislative history to the extent it is helpful. Gaines, 346 Or at 172. Whether we find legislative history helpful in determining the legislature's intent depends on the substance and probative quality of the legislative history. Id. However, "a party seeking to overcome seemingly plain and unambiguous text with legislative history has a difficult task before it." Id. If the legislature's intent remains unclear after examining the text, context, and legislative history ...

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