Lacasse v. Owen

• Decision Date: 04 May 2016
• Docket Number: 115715L9,A155515.
• Citation: 278 Or.App. 24,373 P.3d 1178
• Parties: Richard LACASSE, Plaintiff–Appellant, v. Pamela OWEN, Defendant, and Fountain Plaza, LLC, Defendant–Respondent.
• Court: Oregon Court of Appeals

278 Or.App. 24

373 P.3d 1178

Richard LACASSE, Plaintiff–Appellant

v. Pamela OWEN, DefendantandFountain Plaza, LLC, Defendant–Respondent.

115715L9

A155515.

Court of Appeals of Oregon.

Submitted July 2, 2014.

Decided May 4, 2016.

Michael W. Franell, Medford, filed the brief for appellant.

John M. Kreutzer and Smith Freed & Eberhard, PC, Portland, filed the brief for respondent.

Before DUNCAN, Presiding Judge, and LAGESEN, Judge, and WOLLHEIM, Senior Judge.

DUNCAN, P.J.

Plaintiff was fired by defendant¹ and subsequently brought a claim against defendant for retaliatory discharge. Plaintiff alleged that his termination was motivated by his involvement in a complaint of sexual harassment occurring at a different company whose ownership interests were intertwined with defendant's. See ORS 659A.030(1)(f) (making it unlawful for an employer to discharge an employee “because that [employee] 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”). In response, defendant moved for summary judgment on the ground that plaintiff could not prove the element of causation—that is, he could not prove that he was fired because of his protected activities rather than his poor performance. The trial court, after ruling that some of plaintiffs proffered evidence was inadmissible, concluded that the remaining evidence in the summary judgment record was not sufficient to create a jury question on causation, and it granted defendant's motion. On appeal, we reverse and remand, holding that the trial court did not give due consideration to the ORCP 47 E declaration from plaintiff's counsel, which, when coupled with other evidence in the record, would permit a jury to find that defendant's asserted bases for terminating plaintiff were a pretext for unlawful retaliation.

I. BACKGROUND

Defendant, which is a retirement community and residential care facility, hired plaintiff as an executive chef in June 2010, and it fired him approximately six months later, on December 20, 2010. Plaintiff subsequently filed a complaint against defendant for retaliatory discharge. In his complaint, plaintiff alleged that, in the months leading up to his termination, he had received nothing but praise from his supervisor, Pamela Owen. But then, according to plaintiff, he was suddenly fired after assisting a coworker with a sexual harassment complaint.

According to plaintiffs allegations, the events precipitating his termination began in November 2010, when he spoke with one of his part-time coworkers, Valdovinos, about sexual harassment that she was experiencing at Anna Maria Manor, LLC (Anna Maria), where she worked a second job. Plaintiff alleged that he and Valdovinos then spoke with Owen about how Valdovinos should handle the situation at Anna Maria and “[s]uggestions were provided to Ms. Valdovinos regarding the handling of her circumstances.” When the situation at Anna Maria failed to improve for Valdovinos, plaintiff referred her to a labor attorney who was assisting plaintiff in a separate matter. On December 8, 2010, plaintiff informed Owen that he had referred Valdovinos to his attorney.

Plaintiff alleged that just nine days later—on December 17, 2010—he received a “conference report” that referred to a meeting on December 3 to address his work performance, and he was informed that he needed to sign and return the report. According to plaintiff, he then spoke with Owen and disputed that any performance issues were addressed on December 3. And, on December 19, plaintiff told defendant's executive director, Mary Roper, that he had never received a formal performance review. Plaintiff was terminated the following day.

In his complaint, plaintiff further alleged that defendant and Anna Maria “were under common ownership in the past” and that the two limited liability companies “continue to both have the same designated representative, Lawrence Horton,” who “has an ownership interest in [defendant].” According to the complaint, defendant “fired Plaintiff out of retaliation for Plaintiff referring Ms. Valdovinos to his labor attorney.”

Plaintiffs complaint also alleged a second claim for relief, which, although not directly at issue on appeal, provides context for how the case was litigated. That second claim for relief, which was ultimately treated as a defamation claim,² alleged that defendant had created and published a false performance evaluation and payroll action form, dated September 28, 2010, stating that plaintiff was on probation for an additional 90 days. Plaintiff alleged that he had discovered the documents after requesting his personnel file upon termination and that “the performance evaluation forms were fictitious and were created by Defendant Pamela Owen to cover Defendant's retaliatory actions.”

In response to the complaint, defendant moved for summary judgment on both of plaintiffs claims. With regard to retaliatory discharge, the motion was directed at the issue of causation. Defendant argued that plaintiffs theory of retaliatory discharge—that he was fired for referring Valdovinos to a labor attorney—was wholly implausible because (1) there was no evidence that Horton, the owner of interests in defendant and Anna Maria, had any involvement in the decision to terminate plaintiff and (2) the evidence established that defendant, like plaintiff, had actually assisted Valdovinos in opposing sexual harassment at Anna Maria and had even hired her as a full-time cook after she left there. According to defendant, the decision to terminate plaintiff was, instead, “based solely on performance and related issues, and any assistance Plaintiff may have provided to Ms. Valdovinos (regarding her outside employment at the Anna Maria facility) made absolutely no difference or played any part in that decision.” (Emphasis in original.)

In support of its motion, defendant offered declarations from Owen and Roper. In Owen's declaration, she averred that the decision to terminate plaintiffs employment was made by Roper, based on plaintiff's escalating performance issues, including resident complaints, deficiencies in kitchen cleanliness and sanitation, difficulties working cooperatively with others, and his lack of accountability for his behavior, all of which were memorialized in a termination letter dated December 20, 2010. She further averred that plaintiffs termination was “entirely separate” from any of the employment issues involving Valdovinos and that, to Owen's knowledge, Horton was not consulted about or aware of the reasons for plaintiff's termination. Roper's declaration likewise stated that the decision was hers alone, was not influenced by Horton, and was based entirely on performance issues—including issues that surfaced during a “mock survey” that was done in anticipation of an annual Department of Human Services inspection scheduled for January.

Defendant also supported its summary judgment motion with deposition testimony from Valdovinos and plaintiff. In her deposition, Valdovinos testified that Owen was always respectful toward her, that she was never afraid of losing her job because of anything that defendant or Owen did, and that she still works full time for defendant. As for plaintiffs deposition, defendant seized on a part of plaintiffs testimony in which he conceded that he had “no direct knowledge” that Horton was aware of the harassment allegations made by Valdovinos.

In opposition to defendant's motion, plaintiff emphasized two points: (1) defendant never complained about plaintiffs performance issues before he referred Valdovinos to his labor attorney; (2) yet, after he made the referral, defendant suddenly invented complaints about his work and lied about having provided previous negative performance reviews. In support of his response, he relied on his own deposition testimony to that effect, as well as an affidavit and related exhibit from Carla Tryber, a landlord to whom plaintiff had submitted a rental application in November 2010. Attached to the affidavit was a copy of the application, which contained notes that Tryber made. The notes reflect a conversation with Owen about plaintiff and his job security; the notes state, “very responsible and well liked. They are very happy w/ him[.] Secure job. Impossible not to like him[;] everyone likes him [;] his job's secure.”

In reply, defendant reiterated that Roper alone had made the decision to terminate plaintiff for poor performance, and that “a mere temporal proximity between the protected activity and termination is insufficient, without more, to satisfy the causation element,” citing Ledesma v. Freightliner Corp., 97 Or.App. 379, 383, 776 P.2d 43 (1989). And, in a footnote, defendant took issue with the admissibility of the Tryber affidavit and attached exhibit, arguing that they constitute “inadmissible hearsay. As an Affidavit, a cursory review of this document reveals it is not properly notarized; nor does it comply with the form of a Declaration under ORCP 1 E.”

At the same time that they were briefing the issues on summary judgment, the parties were also locked in a discovery dispute about the purportedly fabricated performance evaluation in plaintiffs personnel file. After defendant filed its reply brief on summary judgment, but before the court ruled on defendant's motion, plaintiff filed a motion to compel production of the computer files and metadata related to the creation of that performance evaluation.

When the trial court later took up the summary judgment motion, it noted the complicating fact of the parties' pending discovery dispute. The court explained that, “[o]rdinarily the Court would search the record to determine whether a question of fact is raised on the question of causation, but an unusual procedural quirk suggests this inquiry is premature.” The court explained that plaintiff's motion to compel sought electronic files regarding the...