and submitted May 6, 2019
Clackamas County Circuit Court CV14110305; Daniel Leon
Harris, Senior Judge.
A. Lillegren argued the cause for appellant. Also on the
briefs was Stephen Madkour.
Eiva argued the cause for respondent. Also on the brief was
Lagesen, Presiding Judge, and DeVore, Judge, and James,
statutory whistleblower retaliation case against
plaintiff's former employer, Clackamas County, the
question on appeal is whether ORS 659A.199, which makes it
unlawful for an employer to retaliate against an employee
"for the reason that the employee has in good faith
reported information that the employee believes is evidence
of a violation of state or federal law, rule or
regulation," applies to all employers, as the trial
court concluded, or only to private employers, as the county
contends. Held: The trial court did not err. The
legislature defined the term "employer" as it is
used in chapter 659A as "any person who in this state,
directly or through an agent, engages or uses the personal
service of one or more employees, reserving the right to
control the means by which such service is or will be
performed." ORS 659A.001(4)(a). Additionally, ORS
659A.001(9)(b) clarifies that" '[p]erson'
includes * * * a public body as defined in ORS 30.260."
By definition, the word "employer," as used in ORS
659A.199, includes public bodies that employ people.
Or.App. 463] LAGESEN, P. J.
found in plaintiffs favor on her statutory whistleblower
retaliation claims against her former employer, defendant
Clackamas County. The main question on appeal is whether ORS
659A.199, which makes it unlawful for an "employer"
to retaliate against an employee "for the reason that
the employee has in good faith reported information that the
employee believes is evidence of a violation of a state or
federal law, rule or regulation," applies to all
employers, as the trial court concluded, or only to private
employers, as the county contends. In the county's view,
the statute applies solely to private employers. The trial
court, argues the county, was therefore wrong not to direct a
verdict in its favor on plaintiffs claim under ORS 659A.199.
The legislature, however, has defined the term
"employer" to include public bodies for purposes of
ORS chapter 659A, making the county's construction of the
term untenable. The trial court, therefore, was correct.
Because the county's other arguments on appeal present no
basis for reversal, we affirm.
pertinent facts are mainly procedural and not disputed.
Plaintiff used to work for the county as a human services
manager. She sued the county for unlawful employment
practices under ORS 659A.199 and ORS 659A.203, alleging that
the county unlawfully retaliated against her in violation of
those statutes after she had made reports regarding the
improper use of federal grant funds associated with county
programs. Plaintiff also asserted a national origin-based
hostile work environment claim under ORS 659A.030. At the
close of plaintiffs case, the county moved for a directed
verdict on the ORS 659A.199 claim on the ground that the
statute applies only to private businesses and not to public
employers. The trial court denied the motion. The jury
ultimately found that the county engaged in retaliatory
conduct that violated both ORS 659A.199 and ORS 659A.203 and
awarded $386, 916 in damages to plaintiff. The jury, however,
found in the county's favor on the hostile work
county appeals. It contends that the trial court erred by
submitting the ORS 659A.199 claim to the jury. Additionally,
the county contends that the trial court [298 Or.App. 464]
committed multiple errors in instructing the jury on the ORS
659A.203 claim. Finally, it contends that the court abused
its discretion by not striking the entire jury panel after
the court made a comment to prospective jurors about the
summary judgment process that, in defendant's view,
impermissibly suggested that plaintiffs claims had merit.
argument, the parties agreed that, were we to determine that
the county was not entitled to reversal on its claim
regarding the trial court's failure to strike the jury
panel, then the county would have to demonstrate error with
respect to both the ORS 659A.199 claim and the ORS 659A.203
claim to obtain reversal. That is because the record reflects
that those claims were presented to the jury as independent,
alternative theories of liability based upon the same conduct
by the county. Under those circumstances, if either one went
to the jury in an error-free way, then any error that may
have occurred in submitting the other theory to the jury
would be harmless.
the decks, we reject the county's contention that the
trial court abused its discretion by not striking the jury
panel. The county asserts that the court's remarks about
the role of summary judgment in civil cases effectively
rendered the panel actually biased against the county. We
have reviewed the trial court's remarks, in context, and
we see no likelihood ...