Hernandez v. Catholic Health Initiatives

• Decision Date: 05 May 2021
• Docket Number: A166808
• Citation: 490 P.3d 166,311 Or.App. 70
• Court: Oregon Court of Appeals
• Parties: Elisabeth HERNANDEZ, Plaintiff-Appellant, v. CATHOLIC HEALTH INITIATIVES et al., Defendants, and Reed Group, Ltd., a corporation of Colorado; and Reed Group Management, LLC, Defendants-Respondents.

311 Or.App. 70

490 P.3d 166

Elisabeth HERNANDEZ, Plaintiff-Appellant,

v. CATHOLIC HEALTH INITIATIVES et al., Defendants,andReed Group, Ltd., a corporation of Colorado; and Reed Group Management, LLC, Defendants-Respondents.

A166808

Court of Appeals of Oregon.

Argued and submitted October 29, 2019.

May 5, 2021

Richard B. Myers argued the cause and filed the briefs for appellant.

Sarah N. Turner, Washington, argued the cause for respondents. Also on the brief was Gordon Rees Scully Mansukhani, LLP, Washington.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief amicus curiae for State of Oregon, Bureau of Labor and Industries.

Cody Hoesly and Larkins Vacura Kayser LLP filed the brief amicus curiae for Oregon Trial Lawyers Association.

Before Lagesen, Presiding Judge, and DeVore, Judge, and Powers, Judge.

LAGESEN, P. J.

ORS 659A.030(1)(g) makes aiding and abetting an unlawful employment practice an unlawful employment practice in and of itself. That much is clear. Not clear is the scope of the universe of potential aiders and abettors. Can "any person" be an aider or abettor, as plaintiff Hernandez argues? Or is it only employers and employees who can be aiders and abettors, as defendants Reed Group Management, LLC, and Reed Group, Ltd., argue? Aiming to clarify, acting to opacify, a 1953 housekeeping revision made the text of the statute ambiguous on the point. The context, though, resolves the question in favor of plaintiff. Because the trial court concluded otherwise, we reverse and remand.

This case is before us on plaintiff's appeal of a limited judgment of dismissal entered after the trial court granted defendants’ motion to dismiss under ORCP 21 A(8). We review for legal error the trial court's grant of an ORCP 21 A(8) motion. Chang v. Chun , 305 Or. App. 144, 147, 470 P.3d 410 (2020). In conducting our review, "we accept as true the allegations in the complaint, and any reasonable inferences that can be drawn from those allegations, viewing them in the light most favorable to the nonmoving party," in this case, plaintiff. Id. In accordance with that standard, we state the facts about the parties’ underlying dispute as plaintiff alleges them to be.

Plaintiff is a registered nurse. Defendants Catholic Health Initiatives and Mercy Medical Center, Inc., (collectively, Mercy Health) hired her to work at a hospital they operated. Defendants administer Mercy Health's employee benefit programs.

While lifting a patient at work, plaintiff injured her back. She sought medical treatment for the injury, and her treating physician filed a workers’ compensation claim on her behalf. Mercy Health's workers’ compensation insurer accepted that claim.

In treating the injury, plaintiff's physician placed her on work restrictions. Those restrictions did not allow her to perform her regular work duties for several months. Her physician then modified her restrictions. Around the same time, plaintiff became aware of several vacant positions that were consistent with her modified restrictions and requested that Mercy Health employ her in one of those positions. Mercy Health refused. Then, about two months later, Mercy Health notified plaintiff that she would be "administratively separated" from her employment because she had exhausted her medical leave. On the same day, defendants also notified plaintiff that she had exhausted her medical leave under Oregon law.

Plaintiff again requested that Mercy Health reemploy her or otherwise accommodate her injury. As an alternative, she requested additional medical leave. She also contacted defendants to request medical leave but one of defendants’ representatives told her that she was not eligible for medical leave because her employment had been terminated.

This action followed. Plaintiff alleges (among other things) that Mercy Health committed unlawful employment practices by (1) denying reemployment, in violation of ORS 659A.046 ; (2) discriminating against plaintiff because of a disability, in violation of ORS 659A.112 ; and (3) interfering with her protected medical leave, in violation of ORS 659A.183. Plaintiff additionally alleges that defendants unlawfully aided and abetted those alleged unlawful employment practices themselves, in violation of ORS 659A.030(1)(g) by mishandling her medical leave benefits in six different ways.

Defendants moved to dismiss the aid-and-abet claim against them. They contended that ORS 659A.030 (1)(g) applies exclusively to conduct by employers and employees and does not extend to conduct by third parties to the employment relationship, even if that conduct, in fact, aids and abets an unlawful employment practice. In support of that argument, they relied on a host of decisions by the United States District Court for the District of Oregon interpreting ORS 659A.030(1)(g) in that way. Plaintiff argued that the text of ORS 659A.030(1)(g), in context, demonstrates that it applies to anyone, including third parties to an employment relationship, that aids or abets an unlawful employment practice. The trial court agreed with defendants, and entered a limited judgment dismissing them from the case. Plaintiff appealed.

On appeal, the parties reiterate the arguments they made to the trial court. In addition, the Oregon Trial Lawyers Association (OTLA) and the Oregon Bureau of Labor and Industries (BOLI) have submitted amicus curiae briefs. OTLA's brief supplies a detailed tracing of the history of ORS 659A.030(1)(g), including copies of primary source materials, and BOLI's brief notes its historical understanding and practice in enforcing ORS 659A.030(1)(g), both of which, they argue, demonstrate that the legislature intended that aid-and-abet liability would not be limited to employers and employees.

The question before us, then, is straightforward: Does ORS 659A.030(1)(g) prohibit everyone from aiding and abetting unlawful employment practices, or just employers and employees? The answer, thanks to a housekeeping hiccup, is not.

As ever, in ascertaining that answer, our role and our goal is to give effect to the intentions of the legislature that enacted the statute. State v. McQueen , 307 Or. App. 540, 545, 478 P.3d 581 (2020). We do so by examining the statutory "text, in context, and, where appropriate, legislative history and relevant canons of construction." Chase and Chase , 354 Or. 776, 780, 323 P.3d 266 (2014). Context includes other provisions of the same statute, other related statutes, other statutes enacted at the same time, and "prior versions of the same statute." Northwest Natural Gas Co. v. City of Gresham , 359 Or. 309, 322, 374 P.3d 829 (2016). That examination, as we explain, demonstrates that, in enacting ORS 659A.030(1)(g), the legislature intended to prohibit the aiding and abetting of unlawful employment practices by anyone, not only employers and employees.

We start with text. ORS 659A.030(1)(g) states that "[i]t is an unlawful employment practice *** [f]or any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so." The simple act of reading reveals something wrong in the crafting. At war with itself, the text suggests that it applies to everyone ("any person") and, simultaneously, that it applies only to employers and employees ("whether an employer or an employee"). The words, and the impossibility they conjure, raise only questions: Why refer to any person if the legislature meant to refer only to employers and employees? Why refer to employers and employees if the legislature meant to refer to any person? Did the legislature think that the universe of "any person[s]" coincided with the universe of employers and employees? The sentence, as written, is more mystery than mandate.

Although the statutory wording does not communicate the legislature's intentions with clarity, statutory context does. The statutory definition of the word "person," the other statutory provisions identifying unlawful employment practices, and the enactment history of ORS 659A.030(1)(g) demonstrate that the legislature intended to prohibit aiding and abetting unlawful employment practices by "any person" at all, not just employers and employees.

As for what "person" means for purposes of ORS 659A.030, ORS 659A.001(9) defines it to include:

"(a) One or more individuals, partnerships, associations, labor organizations, limited liability companies, joint stock companies, corporations, legal representatives, trustees, trustees in bankruptcy or receivers.

"(b) A public body as defined in ORS 30.260."

That broad definition is one we are "obliged to apply," McLaughlin v. Wilson , 365 Or. 535, 540, 449 P.3d 492 (2019), and it is one that suggests that the legislature did not intend the prohibition on aiding and abetting by "any person" to be limited to employers and employees. That definition identifies the people and entities encompassed without reference to status in an employment relationship. And some of the identified "person[s]" are ones not often thought of as employers or employees, such as "legal representatives, trustees, trustees in bankruptcy or receivers." ORS 659A.001(9)(a). This broad definition of the term person indicates that the legislature generally did not view "person[s]" as limited to employers and employees. See generally McLaughlin , 365 Or. at 539-49, 449 P.3d 492 (concluding that term "any person" in ORS 659A.030(1)(f) was not limited to employers and employees, in view of statutory definition of "person" contained in ORS 659A.010(9) and the legislature's use of the term "any").¹

The other provisions of ORS 659A.030(1) point the same way. ORS 659A.030(1)(a) and (b) prohibit specified conduct by "an employer." ORS 659A.030(1)(c) prohibits specified conduct by "a labor organization." ORS 659A.030(1)(d) prohibits specified conduct by "any employer or employment...