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Ossanna v. Nike, Inc.

Supreme Court of Oregon

July 18, 2019

Douglas OSSANNA, an individual, Respondent on Review,
v.
NIKE, INC., an Oregon corporation, Petitioner on Review.

          Argued and submitted November 5, 2018.

          On review from the Court of Appeals CC 130101385; CA A157434. [*]

          Brenda K. Baumgart, Stoel Rives LLP, Portland, argued the cause and fled the briefs for petitioner on review. Also on the briefs were Amy Joseph Pedersen and James N. Westwood.

          Michael J. Estok, Lindsay Hart, LLP, Portland, argued the cause and fled the brief for respondent on review. Also on the brief were Glen McClendon and Alice Newlin.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices. [**]

         [365 Or. 197] Case Summary:

         Plaintiff brought retaliation claims against his former employer and requested a "cat's paw" instruction informing the jury that, in considering his claims, it could impute his supervisor's biased retaliatory motive to Nike's formal decision-maker under certain circumstances. The trial court refused to give the instruction, and the Court of Appeals reversed and remanded.

         Held:

         (1) The "cat's paw" doctrine is a viable theory in Oregon statutory employment discrimination and retaliation cases that permits a jury to impute the unlawful bias of a subordinate supervisor who lacked decision-making authority to the employer's ostensibly independent manager with decision-making authority, if the biased supervisor influenced or was involved in the adverse employment decision or decision-making process; (2) for an employer to be liable, a plaintiff relying on the theory must establish a causal connection between the supervisor's bias and the adverse employment action to the degree required for the claim at issue; and (3) the trial court erred in declining to give plaintiff's "cat's paw" jury instruction, and that error prejudiced plaintiff.

         The decision of the Court of Appeals is affirmed. The judgment of the circuit court on plaintiff's claims for safety complaint retaliation and whistleblower retaliation is reversed, and the case is remanded to the circuit court for further proceedings.

         [365 Or. 198] NAKAMOTO, J.

         In this employment action involving Oregon statutory retaliation claims, we decide whether the trial court erred by refusing to give an instruction regarding the "cat's paw" theory of establishing discriminatory or retaliatory motivation. After being terminated by defendant Nike, Inc., plaintiff Douglas Ossanna sued his former employer. Plaintiff alleged, among other things, that Nike had unlawfully fired him in retaliation for his safety complaints and for whistleblowing. Based on his theory that his supervisors held a retaliatory bias against him, plaintiff requested a "cat's paw" jury instruction informing the jury that, in considering his claims, it could impute a subordinate supervisor's biased retaliatory motive to Nike's formal decisionmaker, an upper manager with firing authority, if the biased subordinate supervisor influenced, affected, or was involved in the decision to fire plaintiff. The trial court declined to give the instruction, and the jury returned a verdict for Nike. The Court of Appeals reversed, concluding that the trial court's refusal to give the requested "cat's paw" instruction was an instructional error that prejudiced plaintiff. Ossanna v. Nike, Inc., 290 Or.App. 16, 415 P.3d 55 (2018).

         We allowed Nike's petition for review to address the "cat's paw" doctrine under Oregon law and whether the trial court erred in refusing to give the proffered instruction. In deciding that question, we reach the following legal conclusions. We hold that the "cat's paw" doctrine is a viable theory in Oregon. The instruction on the doctrine in this case would have permitted the jury to impute the unlawful bias of a subordinate supervisor who lacked decision-making authority to the employer's authorized manager and ostensibly independent decision-maker, if the biased supervisor influenced or was involved in the adverse employment decision or decision-making process. For an employer to be liable, however, a plaintiff relying on the imputed-bias theory also must establish a causal connection between the supervisor's bias and the adverse employment action; the causation requirement for the claim at issue controls the degree of causation required to impose liability.

         [365 Or. 199] We also conclude that the trial court erred in declining to give plaintiffs "cat's paw" jury instruction, because the instruction was a correct and applicable statement of the law, and that the instructional error prejudiced plaintiff. Accordingly, we affirm the decision of the Court of Appeals, reverse the judgment of the trial court as to plaintiffs retaliation claims, and remand the case to the trial court for further proceedings.

         I. FACTUAL AND PROCEDURAL HISTORY

         We review a trial court's failure to give a requested jury instruction for errors of law, State v. Reyes-Camarena, 330 Or. 431, 441, 7 P.3d 522 (2000), and evaluate the evidence in the light most favorable to the establishment of the facts necessary to require the instruction, Carter v. Mote, 285 Or. 275, 279, 590 P.2d 1214 (1979). We therefore recite the facts in the light most favorable to the giving of plaintiffs "cat's paw" instruction.

         From 2007 until his termination in 2013, plaintiff was a licensed electrician in Nike's maintenance department. In 2009, Nike established an electrician apprenticeship program so that participating employees could obtain a Limited Maintenance Electrician license. Portland Community College's (PCC) Metro Limited Maintenance Electrician Joint Apprenticeship Training Committee (JATC) administered the program. The program required an apprentice seeking licensure to log 4, 000 hours of on-the-job training under the supervision of a licensed electrician and to take classes at PCC.

         Between the 2009 inception of the apprenticeship program at Nike and 2012, plaintiff repeatedly voiced his concerns about the safety of apprentices performing unsupervised electrical work and about Nike's improper administration of the program in violation of JATC requirements. Initially, plaintiff spoke about his concerns with Dan Delgado, his direct supervisor and the person in charge of the apprenticeship program at Nike. But eventually, seeing no corrective measures, plaintiff escalated his concerns up Nike's chain of command. He communicated with-in ascending order of superiority-Mark Treppens, [365 Or. 200] maintenance operations manager; Nellie St. Jacques, facilities director; and Deb Hellmer-Steele, senior director of global corporate services. Plaintiff also conveyed his concerns to Stephanie Hammer, Nike's operational risk manager. Plaintiff raised concerns about the general mismanagement of the apprenticeship program and reported two specific electrocution incidents that had resulted from unsupervised apprentice work. Despite the reports, however, plaintiff did not observe any changes appropriately responsive to his concerns.

         In December 2011, Nike had hired Treppens as its maintenance operations manager. Treppens supervised Delgado, plaintiffs direct supervisor. Soon after coming aboard, Treppens learned of plaintiffs safety concerns. In an email to himself, Treppens noted that an apprentice had reported overhearing plaintiff and another licensed electrician discuss filing a complaint with the Oregon Occupational Safety and Health Administration (OSHA). During a subsequent one-on-one meeting with plaintiff, Treppens informed plaintiff that he would not be considered for a supervisor opening "because of the past." Plaintiff understood Treppens to be referring to his past safety complaints. Plaintiff then shared the exchange with St. Jacques, prompting Treppens to call plaintiff into his office, where he denied having made the comment. Despite the foreshadowed outcome, plaintiff applied for the supervisor opening; he did not receive the promotion.

         In February 2012, a resigning licensed electrician discussed his concerns about the apprenticeship program in an exit interview and mentioned that plaintiff shared those concerns. That prompted an employee relations manager to ask plaintiff about the safety concerns, which plaintiff confirmed. The resigning employee filed a safety complaint with JATC.

         In May 2012, responding to that complaint, JATC conducted a site visit at the Nike campus to review the apprenticeship program. Shortly after, plaintiff reached out to Katrina Cloud, the JATC administrator, to express his safety concerns. That same month, plaintiff also filed a safety complaint with OSHA. Plaintiff remained in [365 Or. 201] communication with Cloud as JATC investigated Nike's compliance with the apprenticeship program criteria. At one point, Delgado called plaintiff into his office, locked the door, and warned plaintiff that, if he provided any information to JATC, he would not "be allowed on this campus again."

         In late December 2012, the Nike campus was in "PowerDown" mode, during which time campus-related services were scaled back or shut down for the holidays. Plaintiff was not scheduled to work during PowerDown. But two contractors needing to complete a maintenance project at Nike's "Bo Jackson" sports facility contacted plaintiff about accessing the building. Plaintiff showed up with his all-access employee badge to let the contractors into the building. After reviewing the contractors' work, plaintiff suggested that they shoot baskets in the Bo Jackson gym. The floor, they noticed, had recently been varnished, but they concluded that using the gym would not damage the floor. Plaintiffs son joined them, and the four shot baskets for 20 minutes or so.

         In early January 2013, Delgado and Treppens interviewed plaintiff about using his access privilege at the Bo Jackson facility during PowerDown, implying that the gym floor had been damaged. Plaintiff acknowledged employing his access badge to allow unauthorized guests to use the gym but denied damaging the floor. Two days later, Treppens offered plaintiff the opportunity to resign in lieu of termination for abusing his access privilege. Plaintiff initially decided to resign. Later that same day, however, plaintiff rescinded his resignation, claiming that his termination was in retaliation for having raised prior safety and other concerns.

         Plaintiffs claim of retaliation prompted Nike to "hit the pause button" on terminating his employment. Randi Miller, an employee relations manager, testified that she delayed issuing plaintiffs termination letter to gather more information about the retaliation allegation, including by interviewing plaintiff. Miller also testified that one of the first steps of the investigation was to exclude Treppens and Delgado-the accused retaliators-from the process. But despite that purported exclusion, at least Treppens [365 Or. 202] continued to communicate with Miller about the matter. St. Jacques-to whom Nike delegated firing authority-did not interview plaintiff; she largely relied on the information provided to her by Miller. In late January 2013, St. Jacques terminated plaintiff, citing abuse of his access privilege as the reason for the decision.

         Subsequently, plaintiff initiated this action, asserting, inter alia, that Nike retaliated against him for making safety complaints, ORS 654.062(5), and for whistleblowing, ORS 659A.199. Plaintiff contended that, for roughly two years, Nike subjected him to a hostile work environment in which he was treated disrespectfully and with constant suspicion, managers and supervisors frequently made disparaging remarks about him, and he was required to attend a harassment class on pretextual allegations. Additionally, plaintiff alleged, Nike denied him a promotion and, ultimately, terminated his employment.

         Plaintiffs claims were tried to a jury. Six days before trial, plaintiff requested that the trial court give a special jury instruction entitled "Imputation of Subordinate Bias." Plaintiff reasoned that, considering his theory of the case- that Delgado and Treppens had harbored a retaliatory bias against him and improperly influenced St. Jacques's ultimate decision to fire him-the "cat's paw" instruction informing the jury that it could impute Delgado's and Treppens's bias to St. Jacques was warranted.

         At the pretrial conference on jury instructions, Nike stated that it did not object to the giving of an instruction similar to the one that plaintiff had provided, but it proposed certain revisions because it believed that plaintiffs instruction was incomplete. Later that day, Nike's counsel provided the court and plaintiffs counsel with a revised instruction, describing the revision "as approved by the Court this morning." That version of the instruction provided:

"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 [365 Or. 203] biased retaliatory motive against [plaintiff] and that the same subordinate influenced, affected, or was involved in the adverse employment decision against [plaintiff]."

         Yet despite its earlier stance, Nike objected to the instruction at the final conference on jury instructions that the court held on the day before closing arguments. The trial court, noting that Oregon appellate courts had not recognized the "cat's paw" doctrine under Oregon law, ultimately declined to give the instruction.[1] Instead, the trial court instructed the jury on the elements of the retaliation claims-which included the requisite substantial-factor standard of causation-and on corporate agency. The trial court also told plaintiff that he could advocate for his subordinate-bias theory in closing argument. Without the requested instruction, plaintiff forewent making the argument in closing. The jury returned a defense verdict for Nike on both retaliation claims.

         Plaintiff appealed from the resulting judgment, assigning error to the trial court's refusal to give the requested "cat's paw" instruction. The Court of Appeals agreed with plaintiff. In reaching its decision, the Court of Appeals first concluded that plaintiffs proposed instruction was a correct statement of the law. The court determined that the instruction was consistent with case law requiring a plaintiff asserting a statutory retaliation claim to prove that the biased motive was a "substantial factor" in causing the adverse employment action. Ossanna, 290 Or.App. at 27-28. Additionally, the Court of Appeals observed that it had adopted the "cat's paw" theory in two cases decided after the trial: La Manna v. City of Cornelius, 276 Or.App. 149, 366 P.3d 773 (2016), and LaCasse v. Owen, 278 Or.App. 24, 373 P.3d 1178 (2016). Those cases, the court explained, further supported its conclusion that plaintiffs "cat's paw" instruction was legally correct. Ossanna, 290 Or.App. at 29-32. Next, turning to the record, the Court of Appeals determined that plaintiff was entitled to the instruction because his pleadings encompassed the "cat's paw" theory and the evidence at trial supported giving the instruction. Id. at 33-36.

         [365 Or. 204] The Court of Appeals determined that the trial court's error prejudiced plaintiff because the instructions that the trial court gave on causation and corporate agency did not encompass plaintiffs "cat's paw" theory of the case and, indeed, may have precluded the jury from considering it. Id. at 37-38. Accordingly, the Court of Appeals reversed and remanded the case as to ...


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