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Burley v. Clackamas County

Court of Appeals of Oregon

July 10, 2019

Galina BURLEY, Plaintiff-Respondent,
v.
CLACKAMAS COUNTY, Defendant-Appellant.

          Argued and submitted May 6, 2019

          Clackamas County Circuit Court CV14110305; Daniel Leon Harris, Senior Judge.

          Shawn A. Lillegren argued the cause for appellant. Also on the briefs was Stephen Madkour.

          Travis Eiva argued the cause for respondent. Also on the brief was Thomas Boothe.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         In this 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.

         Affirmed.

         [298 Or.App. 463] LAGESEN, P. J.

         A jury 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.

         The 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 environment claim.

         The 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.

         At oral 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.

         Clearing 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 ...


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