McCall v. Dynic USA Corp.

• Decision Date: 22 November 1995
• Citation: 138 Or.App. 1,906 P.2d 295
• Parties: Kathy McCALL, Appellant, v. DYNIC USA CORPORATION and Kathy Hogan, Respondents. C93-0334CV; CA A84907.
• Court: Oregon Court of Appeals

Page 295

906 P.2d 295

138 Or.App. 1

Kathy McCALL, Appellant, v. DYNIC USA CORPORATION and Kathy Hogan, Respondents.

C93-0334CV; CA A84907.

Court of Appeals of Oregon.

Argued and Submitted Oct. 2, 1995.

Decided Nov. 22, 1995.

Kevin L. Cathcart, Beaverton, argued the cause for appellant. With him on the briefs was Clayton H. Morrison.

Scott G. Seidman, Portland, argued the cause for respondents. With him on the brief were Zachary W.L. Wright and Tonkon, Torp, Galen, Marmaduke & Booth.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

WARREN, Presiding Judge.

Plaintiff appeals a summary judgment for defendants ¹ in this employment discrimination case. She argues that the trial court erred in applying issue preclusion to the reason for her discharge from employment. We affirm.

Defendants are entitled to summary judgment if they have shown that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. ORCP 47 C. ²

According to the record on summary judgment, plaintiff worked for employer for approximately four and one-half years. In November 1992, plaintiff filed a workers' compensation claim for an injured right middle finger. Employer began paying temporary disability. On March 14, 1993, plaintiff's physician released her to return to modified work at tasks that allowed her to use only her uninjured hand. The first morning she returned to her job, she was given a copy of the modified job analysis. Plaintiff began working, but began having problems with the machine that she was operating. She began using her injured hand to perform the job, which caused her pain. She called her physician, who in turn called employer and said that plaintiff had called him complaining about adverse working conditions.

Plaintiff's supervisor, defendant Hogan, talked to plaintiff about her ability to perform one-handed work. Hogan then asked plaintiff whether she was refusing to do the job. Plaintiff was not given an opportunity to explain, and her employment was terminated.

Employer then terminated plaintiff's temporary disability benefits. Plaintiff sought a hearing before the Workers' Compensation Hearings Division. The issue in that case was whether employer had properly terminated benefits pursuant to ORS 656.268(3)(c). At that time, the statute provided:

"Temporary total disability benefits shall continue until whichever of the following events first occurs:

" * * * * *

"(c) The attending physician gives the worker a written release to return to modified employment, such employment is offered in writing to the worker and the worker fails to begin such employment."

At the hearing, there was no dispute that plaintiff's attending physician had provided a written release for plaintiff to return to work or that employer had made a written offer of modified work and that plaintiff had returned to work. The dispute was over whether plaintiff had failed to begin the modified employment. Plaintiff's position was that she was "ready, willing and able to work within her physician's written release" but was precluded from doing so because she was wrongfully terminated. Employer's position was that plaintiff was terminated because she refused to continue working within her physician's restrictions.

The referee agreed with employer, finding that plaintiff "was terminated for refusing to work within her restrictions." On appeal, the Workers' Compensation Board (Board) agreed with the referee, who had upheld employer's termination of plaintiff's temporary disability benefits.

Plaintiff then filed this action under ORS 659.121(1), claiming that defendants had engaged in an unlawful employment practice by terminating her employment because she had filed a workers' compensation claim, in violation of ORS 659.410. ³ Defendants denied plaintiff's claim and filed a motion for summary judgment. They argued that the Board's determination in the workers' compensation case, that plaintiff was terminated for refusing to work within her physician's restrictions, precludes plaintiff from showing in this case that the termination was for a different, unlawful purpose, i.e., discrimination for using the workers' compensation system. The trial court agreed and granted defendants' motion for summary judgment.

Plaintiff assigns error to the order granting summary judgment. She asserts that the trial court erred in applying issue preclusion in this case. Defendants respond that the trial court correctly applied issue preclusion, and that the trial court therefore correctly determined that defendants were entitled to judgment as a matter of law.

Issue preclusion applies to preclude relitigation of an issue or fact when that issue or fact has been determined by a "valid and final determination in a prior proceeding." Nelson v. Emerald People's Utility Dist., 318 Or. 99, 103, 862 P.2d 1293 (1993); see Chavez v. Boise Cascade Corporation, 307 Or. 632, 634-35, 772 P.2d 409 (1989) (giving preclusive effect in employment discrimination case to determination of fact in workers' compensation case). There are five requirements for application of issue preclusion:

"1. The issue in the two proceedings is identical.

"2. The issue was actually litigated and was essential to a final decision on the merits in the prior proceeding.

"3. The party sought to be precluded has had a full and fair opportunity to be heard on that issue.

"4. The party sought to be precluded was a party or was in privity with a party to the prior proceeding.

"5. The prior proceeding was the type of proceeding to which this court will give preclusive effect." Nelson, 318 Or at 104, 862 P.2d 1293 (citations omitted).

Plaintiff challenges each requirement except the fourth; she concedes that she was a party to the workers' compensation dispute. We reject her arguments relating to the third and fifth requirements without discussion.

Plaintiff first argues that the issue decided by the Board was not identical to the issue to be decided in this case. She asserts that the only issue before the Board was "whether the employer was authorized to terminate benefits under ORS 656.268(3)(c)." According to plaintiff, under that statute, the only factual determinations to be made by the Board are: "1) Did a physician give [plaintiff] a release for modified employment; 2) was the modified employment offered in writing to [plaintiff], and 3) did [plaintiff] fail to begin the modified employment?" She argues that the factual determinations were completely different under the employment discrimination claim. Under ORS 656.410(1), she has to prove: "1) Did defendants discriminate against [plaintiff] by terminating her employment because she exercised her rights under the workers' compensation statutes, and 2) did defendants otherwise discriminate against [plaintiff] in the terms and conditions of her employment because she exercised her rights under the workers' compensation statutes?"

Defendants respond that the issue in this case, whether claimant was fired because she made use of the workers' compensation system or whether she was fired for a different, nondiscriminatory reason, is the same issue that the Board decided. We agree with defendants.

The legal issue in the workers' compensation case was whether employer properly terminated temporary disability benefits. However, because of plaintiff's argument to the referee and the Board, the dispositive factual question in that case was whether plaintiff was terminated for refusing to perform work within her restrictions or whether her employer wrongfully terminated her. In order for the Board to find that plaintiff was terminated for refusing to perform work within her restrictions, and therefore that she had failed to return to modified work, it necessarily had to reject plaintiff's argument that the reason that she had failed to return to modified work was that she was wrongfully fired. That is the identical factual question that must be determined in this discrimination case.

Plaintiff also asserts that a different factual question is presented in this action, because the Board did not make any findings about whether defendants had discriminated against her in the terms and conditions of her employment before she was terminated. We need not address that argument, because plaintiff did not plead a claim that defendants discriminated in the terms and conditions of her employment before she was terminated, nor did she raise the issue in her response to defendants' motion for summary judgment. ⁴ Accordingly, it was not preserved for our review. See ORAP 5.45.

Plaintiff also argues that the...