Bearden v. N. W. E., Inc., A159352

• Decision Date: 07 August 2019
• Docket Number: A159352
• Citation: 448 P.3d 646,298 Or.App. 698
• Parties: 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.
• Court: Oregon Court of Appeals

298 Or.App. 698

448 P.3d 646

Wilford P. BEARDEN, Plaintiff-Respondent, Cross-Appellant,

v.N. W. E., INC., dba Fantasyland, II, an Oregon corporation, Defendant-Appellant, Cross-Respondent,andSteven Wiener, Defendant.

A159352

Court of Appeals of Oregon.

Argued and submitted August 15, 2017.

August 7, 2019

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

Shenoa Payne, Portland, 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.^*

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 plaintiff’s 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 plaintiff’s favor." Woodbury v. CH2M Hill, 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, 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 boys." Eventually, plaintiff removed the Busted magazines from the store.

The clerks would also assign arrestees from Busted to another clerk’s "team," for example, noting above a mug shot, "Andy’s Team," as a kind of game. In that way, one of the clerks assigned to plaintiff’s "team" a man who had been arrested for murder and abuse of a corpse. That notation was unique; no other arrestees were assigned to plaintiff’s "team" in any of the magazines. "Abuse corpse" was underlined several times.

The clerk who made the notation testified that, in light of widespread knowledge of the crimes of Jeffrey Dahmer, it was reasonable to understand the suggestion to be that plaintiff was interested in sexually abusing corpses. Plaintiff saw that notation and wrote, "Don’t use my name for this crap" above the photograph. He was offended by the notation and assumed that it had a sexual connotation.

Later in plaintiff’s employment, another clerk, Arbow, drew a cartoon about plaintiff. Entitled "Terror at the Porn Store," the cartoon begins, "It was a dark and stormy afternoon at the porn store, when, all of a sudden..." The next page depicts plaintiff, naked, with excrement exploding out of his anal region. Plaintiff is depicted as saying, "I’m Paul, motherfuckers, and I’m goin’ ta shit on you!" The next panel shows plaintiff collapsed face down in the excrement and is captioned, "His anus betrays him!" The cartoon concludes, "And the reign of terror ends at Fantasyland."

Plaintiff found the cartoon under the stack of magazines on the shelf during his night shift on Wednesday, July 7, 2010. He showed it to Frank at the end of his shift, at 7 a.m. on the morning of Thursday, July 8. He said, "I need to talk to you about this." He told her, "You know, this is sexual harassment. Something’s got to be done about it." And he told her he thought it was offensive because he was gay.

Frank was distracted because she was trying to count her till while he was showing her the cartoon. She asked him to work it out with Arbow directly and, if he could not, then to talk to Mansur about it. Plaintiff handed the cartoon to Frank but could not say whether she looked at all the pages. Plaintiff took the cartoon back and kept it.

The same Thursday morning, Mansur called Arbow at home. Mansur "read [Arbow] the riot act" and told him that, if plaintiff pursued legal action for sexual harassment based on the cartoon, Arbow could lose his job.¹ When plaintiff learned of that call, he inferred that Frank must have passed on his complaint about the cartoon to Mansur, because there was no other way Mansur could have known about it.

The evening of the next Sunday, July 11, Arbow delivered a letter of apology to plaintiff after his shift, and he and plaintiff discussed the cartoon. Plaintiff told Arbow that he found it offensive because it was sexual and, as a gay person, he didn’t appreciate it. Arbow begged plaintiff not to pursue it further and told plaintiff what Mansur had said in her call to Arbow on Thursday morning. Plaintiff thanked Arbow for his apology. The two shook hands and agreed to start fresh.

On the evening of the next day, Monday, July 12, plaintiff arrived for work and found another clerk and Arbow behind the counter. The other clerk said that he would work plaintiff’s shift and that plaintiff should go home. Plaintiff tried to call Mansur, but he could not reach her; the number listed for her in the store just rang without any option to leave a voice message.

When plaintiff woke up around 8:30 the next morning, Tuesday, July 13, he received a message from Mansur asking him to come to the store before 12:30 p.m., when she would be leaving. He brought a copy of the cartoon, because he assumed that was what they would be talking about. He arrived around noon. Mansur handed him his paycheck and told him that his services were no longer needed. Plaintiff was angry; he put the cartoon down on the counter, called Mansur and Frank, who was also present, a rude name, and left.

Although Mansur told plaintiff that his services were no longer needed and made the same notation on a terminated-employee notice in his personnel file, she had scheduled him to work on the weekly schedule posted the previous Friday, July 9. He was immediately replaced with a new clerk. As a result of the harassment and Mansur’s termination of plaintiff, plaintiff suffered depression and anxiety related to, among other things, his sexual orientation.

Plaintiff alleged (1) that defendant discriminated against him on the basis of his sex and sexual orientation and (2) that defendant retaliated against him for complaining about sexual harassment. The trial court found in favor of plaintiff on both his claims, and, on appeal, defendant challenges the court’s denial of its motions for directed verdict on both claims. We begin with its fifth assignment of error, in which it challenges the court’s denial of its motion for directed verdict on the retaliation claim. Defendant contends that that was error on the grounds that there is no evidence that Mansur knew that plaintiff had engaged in protected activity—a complaint of sexual harassment—when she terminated his employment. See Lacasse v. Owen , 278 Or. App. 24, 32-33, 37, 373 P.3d 1178 (2016) (knowledge of the protected conduct by the decisionmaker or someone who influenced the decision is necessary to show causation under ORS 659A.030(1)(f) ); see also Ossanna v. Nike, Inc. , 365 Or. 196, 210-11, 445 P.3d 281 (2019) (explaining causation in Oregon employment law).

However, that argument fails to account for our standard of review. As set out above, the record includes evidence that, the same morning that plaintiff complained of sexual harassment to Frank, Mansur called Arbow and told him that he could lose his job if plaintiff pursued legal action for sexual...