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Bearden v. N.W. E., Inc.

Court of Appeals of Oregon

August 7, 2019

Wilford P. BEARDEN, Plaintiff-Respondent, Cross-Appellant,
v.
N. W. E., INC., dba Fantasyland, II, an Oregon corporation, Defendant-Appellant, Cross-Respondent, and Steven WIENER, Defendant.

          Argued and submitted August 15, 2017

          Clackamas County Circuit Court CV12030202; Michael C. Wetzel, Judge.

          Steven M. Wilker argued the cause for appellant-cross-respondent. On the briefs were Robyn Ridler Aoyagi, Corbett Gordon, and Tonkon Torp LLP.

          Shenoa Payne argued the cause for respondent-cross-appellant. Also on the briefs was Shenoa Payne Attorney at Law PC.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge. [*]

         [298 Or.App. 699] Case Summary:

         In this employment discrimination action, defendant N.W.E., Inc., appeals a general judgment, entered after a bench trial, in favor of plaintiff on both plaintiff's sexual harassment claim and his retaliation claim. Defendant assigns error to the court's denial of its motions for directed verdict on both claims. On cross-appeal, plaintiff appeals a supplemental judgment in which the court awarded him costs and attorney fees but awarded less than he requested. Held: The trial court did not err in denying defendant's motion for directed verdict on the retaliation claim or its motion for directed verdict on the sexual harassment claim. The court erred in categorically declining to award attorney fees that plaintiff incurred in a proceeding before the Oregon Bureau of Labor and Industries; instead, the court should have evaluated how much of that amount was reasonably incurred to achieve plaintiff's success in the litigation. The court's reasoning in support of a reduction of the fees that plaintiff requested in connection with his motion for summary judgment was insufficiently clear for meaningful appellate review. The court did not err in awarding less in costs than plaintiff requested.

         Affirmed on appeal; reversed and remanded on cross-appeal.

         [298 Or.App. 700] ORTEGA, P. J.

         In this employment discrimination action, defendant N.W. E., Inc., appeals a general judgment, entered after a bench trial, in favor of plaintiff on both plaintiffs sexual harassment claim under ORS 659A.030(1)(b) and his retaliation claim under ORS 659A.030(1)(f). Defendant assigns error to the court's denial of its motions for directed verdict on both claims. We reject all of defendant's contentions and, consequently, affirm on appeal. On cross-appeal, plaintiff appeals a supplemental judgment in which the court awarded him costs and attorney fees but awarded less than he requested. He contends that the court erred in three ways in reducing the amount of the awards. We agree with his first two contentions and, consequently, reverse the supplemental judgment and remand for further consideration.

         We begin with defendant's appeal. On appeal of the denial of a motion for directed verdict, we review for "any evidence to support the verdict in plaintiffs favor." Woodbury v. CU2M.mil, Inc., 335 Or. 154, 159, 61 P.3d 918 (2003). That is, we view the evidence, and all reasonable inferences from it, in the light most favorable to the plaintiff. Id.

         Viewed in that light, the relevant facts are as follows. Plaintiff, who was 67 years old and openly gay, worked for defendant as a clerk in a pornographic video store doing business as Fantasyland II. The store was open 24 hours a day, with one clerk per 8-hour shift for three shifts during each 24-hour period. Each clerk would see the clerk from the previous shift for a few minutes at the start of his or her shift and would see the clerk from the next shift for a few minutes at the end of his or her shift. Otherwise, at least in the evening, the clerks worked alone. During the three months when plaintiff worked at the store, the manager, Mansur, would come in around 10 Or. 10:30 a.m., and she was frequently unavailable. Frank, the clerk who worked the day shift (from 7 a.m. to 3 p.m.), trained plaintiff and gave him instructions on all of his job functions, either directly or by telling another clerk to tell plaintiff. Frank interviewed and hired one of the other clerks, Arbow.

         One of the clerks would buy copies of Busted magazine, which is a publication that prints mug shots of arrestees, [298 Or.App. 701] and leave them on the counter or on a shelf where the other clerks could look through them. Some of the clerks, not including plaintiff, would write remarks about the arrestees depicted in the mug shots, including sexual remarks. The remarks included comments about women and men, most often based on their appearance but also occasionally based on the crimes for which they had been arrested. Not all of the remarks were sexual, but most were. Commonly appearing remarks included "I'd bang her" and "I'd fuck it," as well as more specific comments like "Cock n her butt" and "Insert cock here" next to a circle drawn over a woman's mouth. Comments apparently based on the particular crime of arrest included, "Grandpa's gonna buttfuck you!" and "I'm gonna buttfuck you!" for charges of sodomy; "You damn kids look at my wiener!" for a charge of indecent exposure; and "I take it in the butt" for a charge of sex abuse.

         The clerk who bought the magazines complained to Frank about the lewd remarks that his coworkers would write in them, and she responded, "Yeah, they're idiots." Plaintiff also told Frank that the notations were totally inappropriate in the workplace, and she responded, "Boys will be ...


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