and submitted April 11, 2017
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 &
M. Christ argued the cause for respondent. With him on the
brief was Cosgrave Vergeer Kester LLP.
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.
Payne fled the brief amicus curiae for Oregon Trial Lawyers
DeVore, Presiding Judge, and Garrett, Judge, and James,
Or. 102] Case Summary:
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.
and remanded as to retaliation claim; otherwise affirmed
Or. 103] GARRETT, J.
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
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
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.
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
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.
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. Plaintiff now appeals the general
judgment, challenging the trial court's dismissal of the
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.
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).
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).
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.
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 ...