Crosbie v. Asante, A173018

• Docket Number: A173018
• Decision Date: 05 October 2022
• Citation: 322 Or.App. 250,519 P.3d 551
• Parties: Denese CROSBIE, an individual, and Denese Crosbie RNFA, LLC, an Oregon limited liability company, Plaintiffs-Respondents Cross-Appellants, v. ASANTE, an Oregon corporation, and Asante Ashland Community Hospital, LLC an Oregon limited liability company, Defendants-Appellants Cross-Respondents.
• Court: Oregon Court of Appeals

322 Or.App. 250

519 P.3d 551

Denese CROSBIE, an individual, and Denese Crosbie RNFA, LLC, an Oregon limited liability company, Plaintiffs-Respondents Cross-Appellants,

v.ASANTE, an Oregon corporation, and Asante Ashland Community Hospital, LLC an Oregon limited liability company, Defendants-Appellants Cross-Respondents.

A173018

Court of Appeals of Oregon.

Argued and Submitted January 12, 2022.

October 5, 2022

Robert Koch argued the cause for appellants-cross-respondents. Also on the opening brief were Anna Sortun, Paul Balmer, and Tonkon Torp LLP. Also on the combined reply brief and cross-answering brief were Anna Sortun and Tonkon Torp LLP.

Mark Lansing, Grants Pass, and Andrew R. Wilson, Medford, argued the cause and filed the combined answering and cross-opening brief for respondents-cross-appellants. On the reply brief on cross-appeal were Andrew R. Wilson and Black, Chapman, Petersen & Stevens.

Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.

KAMINS, J.

Defendants Asante and Asante Ashland Community Hospital, LLC,¹ appeal from a judgment entered after a jury awarded plaintiff Denese Crosbie damages for unlawful employment practice under the Oregon Safe Employment Act (OSEA), ORS 654.062. Asante assigns error to one of the jury instructions, known as the "cat's paw" instruction, which allowed the jury to impute the bias of plaintiff's coworkers to Asante in evaluating whether plaintiff's termination was the product of impermissible bias. Plaintiff cross-appeals, assigning error to the trial court's refusal to award prevailing party attorney fees. Because we conclude that the trial court erred in instructing the jury and that the error likely affected the jury's verdict, we reverse the judgment and remand for a new trial and do not reach the cross appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because the historical facts are relevant primarily to Asante's challenge to the "cat's paw" instruction, we recite those facts "in the light most favorable to the establishment of the facts necessary to require the instruction," in other words, "in the light most favorable to the giving of plaintiff's ‘cat's paw’ instruction." Ossanna v. Nike, Inc. , 365 Or. 196, 199, 445 P.3d 281 (2019).

Crosbie is an experienced and highly skilled Registered Nurse First Assistant (RNFA) in the field of eye surgery. She had worked at the Ashland Community Hospital for 14 years when Asante purchased it in 2013. Asante terminated Crosbie a few years later, in March 2017. Crosbie sued, asserting, among other things, that she was fired in retaliation for complaining about safety issues.

At trial, Asante argued that Crosbie was fired for her persistent bullying behavior toward other nursing staff. According to Asante's witnesses, Crosbie was rude, dismissive, and prevented the other nurses from forming relationships with the surgeons. Several nurses testified that Crosbie withheld necessary information from them, and even went so far as to sabotage them by fabricating mistakes that they did not make. For example, Crosbie was issued a corrective action on January 27, 2017, because "[t]hree separate complaints were received concerning [her] inappropriate behavior," including that she "questioned another employee regarding their practice in a loud, confrontational tone * * * and humiliated the other individual in front of the patient, physician and coworkers" and "made a non-solicited derogatory remark regarding one of her coworkers to a physician." According to the termination notice, three staff members reported that Crosbie refused to "assist a new nurse regarding the appropriate medication to use," then "aggressively slammed her chair."

Crosbie, on the other hand, claimed that she was actually fired in retaliation for reporting safety issues, including violations committed by the other nurses. She testified that safety issues increased in frequency after Asante purchased the hospital due in part to its hiring of inexperienced nurses, and that she often had to step in to correct those nurses’ mistakes. In her view, the instances of "bullying" were actually examples of corrections of other nurses’ mistakes, and those nurses exaggerated her behavior to protect themselves. For example, she explained that in the incident other nurses characterized as "confrontational" and "humiliat[ing]," she had simply asked the other nurse to confirm the contents of a medication because it was not properly labelled.

Crosbie asserted five claims for relief, three of which ultimately went to the jury: unlawful retaliation under ORS 659A.199² and ORS 659A.030,³ and unlawful employment practice under the OSEA, ORS 654.062.⁴ The crux of all three claims was whether protected safety complaints were a "substantial factor" in her termination. In her proposed jury instructions, Crosbie requested the instruction at issue here, entitled "Imputation of Subordinate Bias," otherwise known as the "cat's paw" instruction, which allows the jury to impute a subordinate employee's bias to the person who made the adverse employment decision if the subordinate somehow caused the decision-maker's action. Crosbie's proposed "cat's paw" instruction read:

"You may impute to [the principal decisionmakers regarding Plaintiff's termination] any biased retaliatory motive against Plaintiff held by a subordinate, if you find that their adverse employment decision was not actually independent because a subordinate had a biased retaliatory motive against Plaintiff and that the same subordinate influenced, affected, or was involved in the adverse employment decision against Plaintiff."

Asante objected, arguing that a "cat's paw" instruction is only appropriate when the biased coworker is a "supervisor" not a "peer." Asante alternatively argued that the instruction should include a negligence standard, in that the instruction must require that the employer knew or should have known about the coworker's unlawful motivation. The trial court decided to give the instruction with Asante's proposed negligence standard:

"Even if Defendants decision-makers did not harbor any retaliatory intent toward Plaintiff, you may impute to these individuals a biased retaliatory motive against Plaintiff if you find the following by a preponderance of the evidence:

"1) That a subordinate had a biased retaliatory motive against Plaintiff; "2) That the same subordinate influenced, affected or was involved in the adverse employment decision against Plaintiff;

"3) That the Defendant's decision-makers knew, or reasonably should have known, that the subordinate harbored a retaliatory motive; and

"4) The subordinate's influence, affect or involvement was a substantial factor in Defendant's decision-maker's adverse employment decision regarding Plaintiff."

After the instructions were given and the court asked for exceptions, Asante reiterated that the instruction was improper because "cat's paw" is limited to supervisors and added that the instruction was not supported by the facts because "there was no evidence that the peer employees were aware of the safety reports."

The jury rendered a split verdict, finding for Asante on the general unlawful retaliation claims under ORS 659A.030 and ORS 659A.199 and for Crosbie on the safety-specific retaliation claims under ORS 654.062. It awarded $470,000 in damages. After trial, Crosbie petitioned for attorney fees and costs. The court heard oral argument on the issue, and ultimately denied her request in a supplemental judgment. On appeal, Asante assigns error to the giving of the "cat's paw" instruction, arguing that it misstated the law and was not supported by evidence in the record. Crosbie cross-appeals, assigning error to the denial of attorney fees. Our determination in the appeal obviates the need to address the cross-appeal.

II. STANDARD OF REVIEW

We review jury instructions for legal error. State v. Harper , 296 Or App 125, 126, 436 P.3d 44 (2019). "An instruction is appropriate if it correctly states the law and is supported by evidence in the record." State v. Basham , 301 Or App 498, 499, 456 P.3d 658 (2019), rev. dismissed , 366 Or. 761, 468 P.3d 948 (2020) (citation and brackets omitted).

III. ANALYSIS

A. Employment Discrimination and Retaliation

To prevail on a claim of unlawful discrimination or retaliation under Oregon law, plaintiffs must prove that 1) they have a protected trait or engaged in a protected activity, 2) they suffered an adverse employment outcome, and 3) the protected trait or activity was a "substantial factor" in the adverse decision. Ossanna v. Nike Inc. , 290 Or App 16, 28, 415 P.3d 55 (2018), aff'd , 365 Or. 196, 445 P.3d 281 (2019). The "protected activity" in this case was plaintiff's reporting of safety violations.⁵ The critical question then, which "cat's paw" may (or may not) help answer, is whether, viewed as a whole, the evidence establishes that plaintiff's reporting of safety violations was a substantial factor in her termination.

B. The "Cat's Paw" Instruction

1. The principles of "cat's paw"

The "cat's paw" moniker was coined by Judge Richard Posner, after an Aesop's fable in which a monkey tricks a cat into removing chestnuts from a fire, then steals the chestnuts and leaves the cat with nothing but burnt paws. See Shager v. Upjohn Co. , 913 F.2d 398, 405 (7th Cir 1990) (using the phrase "cat's paw" in employment law for the first time). In the context of employment law, a biased employee acts as the monkey who tricks their employer (the cat) into taking an adverse action against the plaintiff, leaving the employer liable (burned). In other words, it "refers to a situation in which an employee is fired or subjected to some other adverse employment action by a supervisor who himself has no discriminatory motive, but who has been manipulated by a subordinate who does have such a motive." Vasquez v. Empress Ambulance Service, Inc. , 835 F.3d 267, 272 (2d Cir 2016) (citation omitted); see also Ossanna , 365 Or. at 209...