Love v. Polk County Fire District

• Citation: 209 Or. App. 474,149 P.3d 199
• Decision Date: 06 December 2006
• Docket Number: A129097.,03P1524.
• Parties: Lynn LOVE, Appellant, v. POLK COUNTY FIRE DISTRICT, Respondent.
• Court: Court of Appeals of Oregon

149 P.3d 199

209 Or. App. 474

Lynn LOVE, Appellant, v. POLK COUNTY FIRE DISTRICT, Respondent.

03P1524.

A129097.

Court of Appeals of Oregon.

Argued and Submitted August 8, 2006.

Decided December 6, 2006.

Kevin T. Lafky, Salem, argued the cause for appellant. With him on the briefs was Larry L. Linder.

Cecil Reniche-Smith, Portland, argued the cause for respondent. With her on the briefs were Janet M. Schroer and Hoffman, Hart & Wagner, LLP.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and MAURER, Judge pro tempore.

HASELTON, P.J.

Plaintiff appeals, assigning error to the allowance of summary judgment in favor of defendant Polk County Fire District, on plaintiff's common-law claim for wrongful discharge. Plaintiff contends that she adduced evidence raising a genuine issue of material fact, ORCP 47 C, as to whether defendant terminated her employment because she had fulfilled one or more "important public dut[ies]." Babick v. Oregon Arena Corp., 333 Or. 401, 407, 40 P.3d 1059 (2002). Defendant cross-assigns error to the trial court's denial of its motion to strike material from plaintiff's evidentiary submissions proffered in opposition to summary judgment. As explained below, we conclude that, even without consideration of the materials that are the subject of the cross-assignment of error, plaintiff presented evidence raising a triable issue as to at least one of her allegations, viz., that she was discharged for raising concerns about a possible "cover-up" in response to an investigation of defendant's operations by the National Institute for Occupational Safety and Health (NIOSH)¹ following a fatal accident. Accordingly, we reverse and remand.

Summary judgment is proper if the "pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." ORCP 47 C. "No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." Id. In reviewing the allowance of summary judgment, we draw all reasonable inferences in favor of plaintiff, who was the nonmoving party. West v. Allied Signal, Inc., 200 Or.App. 182, 187, 113 P.3d 983 (2005).

We describe the material facts consistently with that standard of review.² Defendant is a public entity responsible for overseeing the activities of a variety of both paid and volunteer fire service personnel. Plaintiff began working as a financial secretary for defendant in November 1996. Plaintiff's duties included providing accounting, financial management, and secretarial services for defendant's board of directors, as well as data entry of training records. With respect to data entry, plaintiff was responsible for recording what training courses fire service personnel attended; however, plaintiff was not responsible for monitoring individual compliance with applicable safety training standards.

Mark Prince became chief of the fire district sometime after plaintiff's employment began. Plaintiff disagreed with several aspects of Prince's leadership within the district. For example, when Prince arrived, an internal policy required fire service personnel to attend at least 75 percent of the training meetings offered by the district. Plaintiff, in performing her data entry responsibilities, noticed that many of the firefighters were not meeting that requirement. Plaintiff believed that the level of training attendance made the fire district less safe. However, by her own admission, plaintiff did not know what the state-mandated training attendance standards were, whether any even existed, or whether, at the current level of attendance, the firefighters were still meeting any applicable standards.

Subsequently, sometime during Prince's first year as chief, he lowered the training attendance policy to 50 percent. Again, because plaintiff had no knowledge of any state-mandated training attendance standard, she did not know whether that change rendered the district or any individual out of compliance with any such state standard. However, plaintiff believed that lowering the standard to 50 percent was yet another example of Prince's poor management and that the change adversely affected safety within the district.

Beyond her dissatisfaction with the training attendance policy, plaintiff also believed that the quality of training offered through the district was inadequate to maintain safety. Specifically, she believed that the members of the committee in charge of training the fire service personnel were not qualified for that responsibility.

Plaintiff expressed her concerns to many people within the fire district. She regularly spoke to her coworkers about her concerns, and many of them shared her views. On several occasions, plaintiff expressed generalized concerns about training attendance to Prince and his deputy chief, Patterson. As plaintiff explained:

"I would give [the training] reports to Patterson and Prince and point out that the people were not meeting the current policy.

"* * * * * *

"I would just give it to them and — and point out to them that, you know, `These are the percentages, these are the people not meeting it,' and I color highlighted it and just — I gave it — to them, but we didn't sit down and have a big discussion about it."

Prince confirmed that plaintiff told him of her concerns "that a number of the individuals weren't making the [75 percent] training requirements."

Plaintiff's concerns increased in March 2003, when three firefighters from the district were involved in an accident during a training exercise. The details of that accident are not clear from the summary judgment record. However, the record shows that the accident occurred during driver training and that one of the passengers in the vehicle died in the accident.

The fire district conducted an internal investigation of the accident. In addition, NIOSH made arrangements to conduct its own investigation. During that time, plaintiff heard speculation from coworkers that Prince and Patterson were planning to hide information from the NIOSH investigators. Plaintiff, at that time, had not seen any evidence indicating such a "cover-up," but she became increasingly concerned that the speculation was true.

As part of the NIOSH investigation, Prince assigned plaintiff to gather training records and other potentially relevant information. Consequently, plaintiff went to the fire marshal, Cane, to collect the district's standard operating procedures (SOPs). Cane was subordinate to Prince and Patterson, but superior to plaintiff. As fire marshal, Cane's duties primarily involved fire prevention and inspections. However, his "[p]eripheral duties include[d] * * * basic management of the District in [the] absence of the Chief or the Deputy Chief[.]" When plaintiff asked for the SOPs, Cane, in plaintiff's words, "explained to me that he was creating them after the fact."³ That statement heightened plaintiff's suspicion of a cover-up because she understood Cane to mean that he was "backdating" the SOPs so as to hide prior deficiencies from the NIOSH investigators.⁴

Plaintiff immediately confronted Cane about the perceived "backdating." She was concerned that Cane's conduct was obstructing the NIOSH investigation, and she expressed that concern to him. In addition to her conversation with Cane, plaintiff discussed her concern with her coworkers. On at least one occasion, plaintiff told a coworker that the district "was going to hide the lack of training [from NIOSH] and pretend that there wasn't a problem."

Prince learned of plaintiff's encounter with Cane and of her conversations with her coworkers. He believed that plaintiff's conduct was unprofessional and distracting to the district's work. On May 31, 2003, the same day the NIOSH investigators were scheduled to arrive, Prince terminated plaintiff's employment with defendant. According to Prince, his decision to discharge plaintiff was based, at least in part, on plaintiff's suggestions to Cane and coworkers that the district was involved in a cover-up in response to the NIOSH investigation:

"[T]here [was] * * * the questioning that she was bringing forth to [Cane] in regards to us trying to cover things up in the NIOSH investigation, that coming from a person that you rely on on a daily basis and you hold in a confidential capacity is not typically what is expected * * * by myself or any other Chief in the business."

In discharging plaintiff, Prince was also motivated by plaintiff's discussions regarding the perceived training deficiencies.

Plaintiff subsequently filed this action against defendant for common-law wrongful discharge. Specifically, plaintiff alleged that she had been discharged because she had "expressed concerns about whether or not the fire fighters were receiving proper training" and because she had questioned "why [defendant] was creating [SOPs] for driving to present to NIOSH for their investigation when they did not exist at the time of the [March 2003] accident." Plaintiff further alleged:

"Questioning the adequacy of safety and whether it meets minimal requirements fulfills an important social policy. Questioning why Defendant was creating SOP's [sic] for driving to present to NIOSH that did not exist at the time of the accident fulfills an important social policy. It protects both the public as a whole and fire fighters in particular. The discharge of Plaintiff thwarts these social policies and is a violation of the social policies."

Defendant moved for summary judgment. In so moving, defendant contended:

"[T]rue whistleblowing — the exposure of evidence of illegal or wrongful activities by one's employer or fellow employees * * * may...