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McLaughlin v. Wilson

Supreme Court of Oregon

September 12, 2019

Nicole McLAUGHLIN, Respondent on Review,
v.
Kenneth WILSON, M.D., Petitioner on Review.

          Argued and Submitted May 15, 2019, at Mt. Hood Community College, Gresham, Oregon.

          On review from the Court of Appeals. (CC 13C21746) (CA A160000) [*]

          Thomas M. Christ, Sussman Shank LLP, Portland, argued the cause and fled the briefs for petitioner on review.

          Andrew Altschul, Buchanan Angeli Altschul & Sullivan LLP, Portland, argued the cause and fled the brief for respondent on review.

          Shenoa Payne, Richardson Wright LLP, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Kistler, Senior Justice pro tempore. [**]

         [365 Or. 536] Case Summary:

         Plaintiff fled complaint alleging that defendant had retaliated against her ORS 659A.030(1)(f). Defendant moved to dismiss the claim, arguing that his actions were not retaliation prohibited by that statute. The trial court granted the motion. The Court of Appeals reversed. Held: (1) As used in ORS 659A.030(1)(f), "any person" includes individuals who are not employers; (2) "otherwise discriminate" in ORS 659A.030(1)(f) does not require an employment relationship; (3) defendant's conduct "otherwise discriminate[d]" against plaintiff.

         The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed in part, and the case is remanded to the circuit court for further proceedings.

         [365 Or. 537] WALTERS, C.J.

         Oregon's civil rights laws make it an "unlawful employment practice" for an employer to discriminate on the basis of any of several protected characteristics. The law protects that right and others by making it unlawful "[f]or any person to discharge, expel or otherwise discriminate against any other person because that other person" has opposed or reported certain unlawful practices. ORS 659A.030(1)(f). In this case, we are asked to decide the scope of that antiretaliation provision. The question before us is whether the retaliation prohibited by ORS 659A.030(1)(f) includes disparaging statements made by defendant, plaintiffs former supervisor, to an admissions officer at plaintiffs MBA program. Defendant offers two reasons why it would not be: he is not a "person," and his statements to the admissions officer did not "otherwise discriminate against" plaintiff, within the meaning of those terms as used in the statute. As we explain, we disagree with both arguments. "Person," as statutorily defined, includes all "individuals," and "otherwise discriminate against" is a broad term that encompasses defendant's conduct. We therefore affirm the decision of the Court of Appeals, McLaughlin v. Wilson, 292 Or.App. 101, 423 P.3d 133 (2018), which ruled in plaintiffs favor and remand this case to the trial court for further proceedings.

         I. FACTUAL AND PROCEDURAL HISTORY

         Because this case arose out of defendant's motion to dismiss, "we assume that the facts alleged in the complaint are true and draw all reasonable inferences in plaintiffs favor." Bailey v. Lewis Farm, Inc., 343 Or. 276, 278, 171 P.3d 336 (2007). In 2012, plaintiff began working at Hope Orthopedics as a medical assistant. While employed at Hope, plaintiff worked closely with defendant, an orthopedic surgeon. Defendant supervised plaintiffs work and was responsible for training her. Initially, defendant was pleased with plaintiffs work and gave her a very positive performance evaluation. When plaintiff later applied to an MBA program at Willamette University, she asked defendant to provide a reference, and he wrote her a glowing one.

         [365 Or. 538] Over the next few months, defendant began to sexually harass plaintiff and attempted to initiate a sexual relationship with her. Because of defendant's authority at Hope, and because defendant had served as plaintiffs reference for her MBA application, plaintiff feared retaliation if she reported defendant's behavior. In June 2013, plaintiff was accepted into Willamette's MBA program. After plaintiff told defendant that she would be leaving Hope soon, defendant's conduct worsened. He continued his pattern of sexual harassment and criticized plaintiffs religious beliefs. Plaintiff then reported defendant's behavior to Hope.

         Hope placed plaintiff on paid leave while it investigated her complaints, and plaintiff ultimately left Hope to enter the MBA program without returning to work. Plaintiffs complaints against defendant were resolved in August 2013. Five days later, defendant went to the office of the Director of Admissions at plaintiffs MBA program and asked to speak to the admissions director about "the person who I wrote a reference for." Defendant told the admissions director, falsely, that plaintiff had "left her past two jobs by getting large amounts of money and a gag order," and that defendant was concerned about plaintiff manipulating male faculty members. Those statements were spread to others at Willamette, including the dean of the MBA program, and plaintiff experienced unwanted attention and suffered emotional distress.

         Plaintiff filed this action against defendant, raising several claims, including defamation, intentional infliction of emotional distress, and the claim that is relevant to this appeal, retaliation under ORS 659A.030(1)(f).[1] That statute makes it an "unlawful employment practice"

"[f]or any person to discharge, expel or otherwise discriminate against any other person because that other person has opposed any unlawful practice, or because that other person has filed a complaint, testified or assisted in any proceeding under this chapter or has attempted to do so."

[365 Or. 539] ORS 659A.030(1)(f). Defendant moved to dismiss plaintiffs retaliation claim, arguing that, because he had not been plaintiffs employer when the alleged retaliation had occurred, he could not be held liable under that provision. The trial court granted defendant's motion. The case proceeded to trial, and plaintiff ultimately prevailed on her defamation claim but lost on her intentional infliction of emotional distress claim.

         Plaintiff appealed, assigning error to the trial court's dismissal of her retaliation claim. Plaintiff argued that ORS 659A.030(1)(f) prohibits discrimination by "any person" and therefore was applicable to defendant. Defendant countered that the statute was not intended to reach coemployees, and that, in any event, the retaliation that plaintiff had alleged-retaliation occurring outside of the workplace-was not the type of discrimination proscribed by ORS 659A.030(D(f).

         The Court of Appeals ruled in plaintiffs favor, concluding both that defendant was a "person" within the meaning of ORS 659A.030(1)(f), and that his statements to the director of admissions of plaintiffs MBA program fell within the ambit of the statute. McLaughlin, 292 Or.App. 101. Defendant then petitioned for review, and we allowed defendant's petition.

         II. "ANY PERSON"

         A. Text and Context

         The disagreement between the parties begins with the term "person." Defendant argues that that, as used in ORS 659A.030(1)(f), "person" does not include an individual like himself, who was not an employer. He observes that, prior to 2001, former ORS 659.030(1)(f) (1999), renumbered as 659A.030(1)(f) (2001), had applied only to "any employer, labor organization or employment agency," and he contends that "any person" retains the same meaning, in light of legislative history that, he argues, indicates that the wording change was not intended to be substantive. The meaning of "any person" is a question of statutory interpretation, and we approach it using the methodology outlined in State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009). We begin with an [365 Or. 540] examination of text and context, and then proceed to consideration of legislative history, to the extent that we find it to be helpful. Id. at 171-72.

         ORS 659A.030(1)(f) makes it an unlawful employment practice

"[f]or any person to discharge, expel or otherwise discriminate against any other person because that other person has opposed any unlawful practice, or because that other person has filed a complaint, testified or assisted in any proceeding under this chapter or has attempted to do so."

(Emphasis added). The term "person" is one that the legislature defines, along with others "[a]s used in *** chapter" 659A, in ORS 659A.001:

"(9) 'Person' includes:
"(a) One or more individuals, partnerships, associations, labor organizations, limited liability companies, joint stock companies, corporations, legal representatives, trustees, ...

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