McCabe v. State

• Decision Date: 19 November 1992
• Docket Number: C-10234
• Citation: 314 Or. 605,841 P.2d 635
• Parties: Gaye McCABE, Respondent on Review, v. STATE of Oregon and Charles E. Hayes, Petitioners on Review. CC 89; CA A64336; SC S38591.
• Court: Oregon Supreme Court

Page 635

841 P.2d 635

314 Or. 605

Gaye McCABE, Respondent on Review, v. STATE of Oregon and Charles E. Hayes, Petitioners on Review.

CC 89C-10234; CA A64336; SC S38591.

Supreme Court of Oregon In Banc.

Argued and Submitted March 6, 1992.

Decided Nov. 19, 1992.

Jas. Adams, Asst. Atty. Gen., Salem, argued the cause for petitioners on review. With him on the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

John Hoag, Eugene, argued the cause, for respondent on review.

FADELEY, Justice.

This case concerns plaintiff's claim against the state for an unlawful employment practice alleged to consist of discrimination against plaintiff because of her sex. The Oregon Tort Claims Act (OTCA) requires that a plaintiff must timely notify the state of the tort claim as a condition of plaintiff's right to bring an action against the state. ¹ ORS 30.275 permits two types of notice: formal notice and actual notice. ORS 30.275(5) provides that formal written notice of a claim against the state may be given only to the office of the Director of the Department of General Services (DGS). Notice given otherwise, although in writing, is not formal notice under the statute. To be effective, it must qualify under the statute as "actual notice." ORS 30.275(6) provides that "actual" notice of a claim is sufficient if the actual notice complies with that statutory subsection.

Plaintiff, an employee of the Oregon State Police (OSP), did not give notice to DGS of her employment discrimination claim against the state and OSP, but instead gave notice by letter to the Superintendent of OSP. The dispositive issue is whether the Superintendent of OSP is a person "responsible for administering claims" within the meaning of ORS 30.275(6), so as to bring the letter notice given to him within the provisions of that subsection. ORS 30.275(6) provides:

"Actual notice of claim is any communication by which any individual to whom notice may be given as provided in subsection (5) of this section or any person responsible for administering claims on behalf of the public body acquires actual knowledge of the time, place and circumstances giving rise to the claim, where the communication is such that a reasonable person would conclude that a particular person intends to assert a claim against the public body or an officer, employee or agent of the public body. A person responsible for administering claims on behalf of a public body is one who, as an officer, employee or agent of a public body or as an employee or agent of an insurance carrier insuring the public body for risks within the scope of [the OTCA], engages in investigation, negotiation, adjustment or defense of claims within the scope of [the OTCA], * * *." (Emphasis added.)

The trial court granted the state's motion for summary judgment because it believed that plaintiff's letter to the Superintendent failed to fulfill the notice requirement of the OTCA. The Court of Appeals reversed, holding that the letter's contents were legally sufficient to constitute actual notice, provided the letter reached a person authorized to receive actual notice. ² That court also held that summary judgment was precluded because the question whether the Superintendent had authority to settle a tort claim finally and completely, or had authority only to investigate it and refer it to the Risk Management Division of DGS, raised a disputed issue of material fact. The Court of Appeals remanded the case to the trial court for further proceedings. McCabe v. State of Oregon, 108 Or.App. 672, 816 P.2d 1192 (1991). Because the person to whom the actual notice was given was a person responsible for administering claims under ORS 30.275(6), summary judgment in favor of defendants should not have been granted and, therefore, we affirm on different grounds.

When reviewing a summary judgment, we view the facts in the light most favorable to the party opposing the motion, in this case, plaintiff. Computer Concepts, Inc. v. Brandt, 310 Or. 706, 709, 801 P.2d 800 (1990). Those facts follow.

Plaintiff was employed as an Executive Security Officer with OSP in 1980. She became pregnant in 1987, and her doctor recommended that she be relieved of regular duty. Despite her previous experience as a dispatcher and her willingness to accept any shift, OSP denied her request for light duty as a radio dispatcher. OSP offered her three other alternatives: (1) to take an unpaid leave, (2) to take a test to be a clerical specialist with a pay cut of $600 monthly, or (3) to exhaust her sick leave and then accept long-term disability status.

In a letter dated July 23, 1987, plaintiff's lawyer informed the Superintendent of OSP that denial of plaintiff's request for light duty during the remainder of her pregnancy constituted sex discrimination and that she was entitled to damages under ORS 659.029 and 659.030. The letter also repeated plaintiff's request for assignment to light duty as recommended by her doctor and stated that, if the Superintendent did not then grant her renewed request, an action would be filed.

The Superintendent of OSP testified in a deposition that OSP makes internal investigations of employee claims that are based on an assertion that OSP breached a legal duty. More specifically, he testified that a claim based on sex discrimination within OSP would be investigated and evaluated at his direction. He testified that his executive assistant, who initially investigated the claim, had brought plaintiff's letter to him and that it was discussed.

Even though ORS 30.275(6), unlike ORS 30.275(5), does not require the formal written notice described in ORS 30.275(4), ³ it does require "any communication by which * * * any person responsible for administering claims * * * acquires actual knowledge of the time, place and circumstances giving rise to the claim." Here, the knowledge of the Superintendent and his assistant about the letter and its contents are not disputed. ⁴ The issue remains whether the notice by letter reached a person described in the statute as authorized to receive it.

The state argues that the Superintendent of OSP is not the proper person to receive actual notice, because the Superintendent is not a person "administering claims" within the meaning of subsection (6), quoted above. The state asserts that the notice statute may be interpreted only as providing that a person "responsible for administering claims" is one who has legal authority to conclude completely all state action relating to the claim and that the Superintendent is not such a person.

The words of the statute, itself, define who can receive actual notice and who is a person "responsible for administering claims." The state argues that we should read the statute to limit persons "responsible for administering claims" to those who have authority to fully pay or settle a tort claim. In order to reach the limiting interpretation contended by the state, the state would read two different "or" connectors in the statute as though the word "or" were the word "and."

The first "or" appears in the statutory description of a person who is authorized to receive an actual notice of claim. "Actual notice of claim is any communication by which an individual to whom notice may be given as provided in subsection 5 [i.e., to DGS] or any person responsible for administering claims on behalf of the public body." As this court has stated: "Generally, the words 'and' and 'or,' as used in statutes, are not interchangeable, being strictly of a conjunctive or disjunctive nature * * *." Lommasson v. School Dist. No. 1, 201 Or. 71, 79, 261 P.2d 860, adhered to in part on rehearing, 201 Or. at 90, 91, 267 P.2d 1105 (1954). Because the connector is an "or," the rest of the sentence must be read to mean that entities or agents of state government, in addition to DGS, also may be responsible for administering claims.

The second "or"--which the state's argument would also read as an "and"--occurs where the statute defines who is a person "responsible for administering claims." The statute states that "[a] person responsible for administering claims * * * is one who * * * engages in investigation, negotiation, adjustment or defense of claims * * *." (Emphasis added.) Under the state's analysis, one must do all those things and also have the authority fully to settle the claim by payment before one may be a person who "administers claims." ⁵ However, using "or," the statute includes persons who only investigate the claim within the definition of those responsible for administering claims. "There is no justification for using 'or' as meaning 'and', unless the failure to do so would leave a statute meaningless or absurd." Lommasson v. School Dist. No. 1, supra, 201 Or. at 79, 261 P.2d 860. In this case there is no reason to reverse meanings; "or" in this statute means "or."

The statute includes as potentially within the ambit of those "responsible for administering claims," state officers, employees, or agents who, on behalf of a public body, investigate claims of a type that are "within the scope of" the tort claims statute. ORS 30.275(6). Plaintiff states a claim of sex discrimination. It is a claim against a state agency and, therefore, falls under the tort claims statute. ORS 30.265(1). By his admission in the record, it is established that the Superintendent of OSP, or his subordinate to whom he assigns the task, ⁶ investigates employment discrimination claims based on sex made against that department. Because the statute reads "investigation, negotiation, adjustment or defense" (emphasis added), the authority of the Superintendent to investigate the claim, as he does here through a member of his staff, is all that the statute requires to demonstrate that he is a "person responsible for administering claims." ⁷

We hold that the Superintendent of OSP, as a person who in fact investigates claims involving his...