and Submitted May 15, 2019, at Mt. Hood Community College,
review from the Court of Appeals. (CC 13C21746) (CA A160000)
M. Christ, Sussman Shank LLP, Portland, argued the cause and
fled the briefs for petitioner on review.
Altschul, Buchanan Angeli Altschul & Sullivan LLP,
Portland, argued the cause and fled the brief for respondent
Payne, Richardson Wright LLP, Portland, filed the brief for
amicus curiae Oregon Trial Lawyers Association.
Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan,
and Nelson, Justices, and Kistler, Senior Justice pro
Or. 536] Case Summary:
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.
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.
Or. 537] WALTERS, C.J.
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
FACTUAL AND PROCEDURAL HISTORY
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.
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.
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
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). 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
[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.
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).
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
Text and Context
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.
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, ...