McLaughlin v. Wilson

Citation292 Or.App. 101,423 P.3d 133
Decision Date31 May 2018
Docket NumberA160000
Parties Nicole MCLAUGHLIN, Plaintiff-Appellant, v. Kenneth WILSON, M.D., Defendant-Respondent.
CourtCourt of Appeals of Oregon

Matthew Scherer, Portland, argued the cause for appellant. On the briefs were Courtney Angeli and Buchanan Angeli Altschul & Sullivan LLP, Portland.

Thomas M. Christ, Portland, argued the cause for respondent. With him on the brief was Cosgrave Vergeer Kester LLP.

Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Stephanie L. Striffler, Assistant Attorney General, filed the brief amicus curiae for Oregon Bureau of Labor and Industries.

Shenoa Payne filed the brief amicus curiae for Oregon Trial Lawyers Association.

Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge.*


ORS 659A.030(1)(f) prohibits certain retaliatory employment actions by "any person." In this case, plaintiff asserted a claim under that statute against defendant, an individual with whom she previously worked. Defendant argued that the statute did not cover his conduct as alleged. The trial court agreed, and dismissed the claim under ORCP 21 A(8). On appeal, plaintiff assigns error to the trial court's ruling, arguing that the court misconstrued the statute. We conclude that the trial court erred, and therefore reverse and remand as to the retaliation claim, and otherwise affirm.

Reviewing the court's grant of defendant's motion to dismiss, we assume the facts alleged in plaintiff's complaint to be true and draw all reasonable inferences in plaintiff's favor. Caba v. Barker , 341 Or. 534, 536, 145 P.3d 174 (2006).

Plaintiff worked as a medical assistant at Hope Orthopedics (Hope), where she assisted defendant, an orthopedic surgeon, on a full-time basis. Initially, defendant and plaintiff had a good working relationship. When plaintiff applied for admission to Willamette University for a graduate degree program, defendant wrote her a glowing reference that emphasized her excellent work performance. After a few months, however, defendant began to harass plaintiff both sexually and on the basis of religion. Plaintiff notified Hope of defendant's behavior, and Hope conducted an investigation.

Meanwhile, plaintiff was accepted into the graduate program at Willamette. Soon after she resigned her position at Hope to enroll in the program, Hope closed its investigation of defendant's behavior, and defendant resigned from Hope. Shortly thereafter, defendant visited an administrator at Willamette and made disparaging remarks about plaintiff to the effect that she routinely made false allegations that ruined people's careers to get financial settlements. Defendant's conduct caused unwanted and unflattering attention to plaintiff and caused her mental and emotional distress.

Plaintiff sued defendant for defamation, intentional infliction of emotional distress, intentional interference with business relationships, and unlawful employment retaliation, ORS 659A.030(1)(f). In her complaint, plaintiff alleged that, at the times relevant to her allegations, defendant was a Hope employee, and effectively her supervisor. Plaintiff did not, however, allege that defendant was her employer.

Defendant moved to dismiss the retaliation claim under ORCP 21 A(8) (failure to state ultimate facts sufficient to constitute a claim), primarily arguing that ORS 659A.030(1)(f) applies only to retaliation by an employer against an employee, and that plaintiff had failed to allege sufficient facts in her complaint to establish that defendant was her employer. Defendant also argued that his conduct was not "discrimination" for purposes of ORS 659A.030(1)(f) because it did not adversely affect plaintiff's terms, conditions, or privileges of employment. The trial court granted defendant's motion and dismissed plaintiff's retaliation claim in a letter opinion and order that did not explain the court's reasoning. Plaintiff's claims for defamation and emotional distress proceeded to trial; a jury found in her favor on her defamation claim and in defendant's favor on the emotional distress claim.1 Plaintiff now appeals the general judgment, challenging the trial court's dismissal of the retaliation claim.

On appeal, plaintiff argues that ORS 659A.030 (1)(f) applies to defendant because he is a "person." Defendant argues that plaintiff's proposed construction is not supported by the statutory text or legislative history.

In response to defendant's arguments regarding ORS 659A.030(1)(f), plaintiff also argues in the alternative that defendant was, in fact, her employer. Although, if that were true, it would obviate the need to consider the parties' other arguments, the record shows that plaintiff failed to preserve her alternative argument because plaintiff, in opposing defendant's motion to dismiss, never argued that defendant was her employer, and specifically contended that she did not need to make that argument under the statute. In doing so, plaintiff prevented the trial court from addressing the issue. We accordingly decline to consider her argument for the first time on appeal. See State v. Wyatt , 331 Or. 335, 343, 15 P.3d 22 (2000) ("[A] party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted."). We thus turn to the parties' primary arguments about ORS 659A.030(1)(f).

We review a trial court's dismissal of a claim under ORCP 21 A(8) for legal error. Nationwide Ins. Co. of America v. TriMet , 264 Or. App. 714, 715, 333 P.3d 1174 (2014). We also review a trial court's interpretation of a statute for legal error. State v. Urie , 268 Or. App. 362, 363, 341 P.3d 855 (2014).

In construing a statute, we first consider the statute's text and context. State v. Gaines , 346 Or. 160, 171, 206 P.3d 1042 (2009). The context of a statute "may include other provisions of the same statute and related statutes *** and the historical context of the relevant enactments." Young v. State of Oregon , 161 Or. App. 32, 35, 983 P.2d 1044, rev. den. , 329 Or. 447, 994 P.2d 126 (1999) (internal citations omitted); see also State v. Ziska/Garza , 355 Or. 799, 806, 334 P.3d 964 (2014) ("Analysis of the context of a statute may include prior versions of the statute."). In construing the text and context, we neither "insert what has been omitted" nor "omit what has been inserted." ORS 174.010.

We may also consider legislative history to the extent it is helpful. Gaines , 346 Or. at 172, 206 P.3d 1042. Whether we find legislative history helpful in determining the legislature's intent depends on the substance and probative quality of the legislative history. Id. However, "a party seeking to overcome seemingly plain and unambiguous text with legislative history has a difficult task before it." Id. If the legislature's intent remains unclear after examining the text, context, and legislative history of a statute, then we apply "general maxims of statutory construction to aid in resolving the remaining uncertainty." Id.

The statute at issue in this case is the anti-retaliation provision of Oregon's Fair Employment Practices Act, which provides:

"(1) It is an unlawful employment practice:
"(f) [f]or any person to discharge, expel or otherwise discriminate against any other person because that other person 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."

ORS 659A.030(1)(f) (emphasis added).

Plaintiff contends that, under the plain language of the statute, defendant "discriminated" against her by taking retaliatory action after plaintiff complained about defendant's harassment of her. In response, defendant asserts two theories as to why his conduct does not fall within the statute. First, defendant contends that he is not a "person" who could "discharge, expel or otherwise discriminate against" plaintiff because he was never plaintiff's employer. Second, defendant argues that he did not "discriminate" against plaintiff under the statute because defendant's conduct did not adversely affect the terms, conditions, or privileges of an existing employment relationship.

We first examine whether defendant was a "person" under ORS 659A.030(1)(f). For purposes of ORS chapter 659A:

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

ORS 659A.001(9)(a) (emphasis added). Thus, "person" appears to broadly encompass individuals like defendant.

The statutory context provides further support for that conclusion. The additional prohibitions in paragraphs (a) through (e) and (g) suggest that the key language in paragraph (f) was chosen deliberately. Paragraphs (a) and (b) prohibit specifically "employer[s]" from discriminating against individuals on the basis of race, sex, national origin, and other characteristics. ORS 659A.030(1)(a), (b). Paragraph (c) prohibits discrimination specifically by "labor organization[s]," and paragraphs (d) and (e) prohibit such conduct specifically by "employment agenc[ies]" and "employer[s]." ORS 659A.030(1)(c)-(e). Paragraph (g) prohibits specifically "any person, whether an employer or an employee," from aiding, abetting, inciting, compelling, or coercing any of the other acts forbidden under ORS chapter 659A. Each of those terms—"employer," "labor organization," "employment agency," and "employee"—is defined distinctly from "person" in ORS 659A.001. Taken together, these provisions indicate that the legislature has carefully chosen what type of entity to subject to each of the respective prohibitions in subsection (1) of the statute....

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5 cases
  • McLaughlin v. Wilson
    • United States
    • Oregon Supreme Court
    • 12 Septiembre 2019 a broad term that encompasses defendant’s conduct. We therefore affirm the decision of the Court of Appeals, McLaughlin v. Wilson , 292 Or. App. 101, 423 P.3d 133 (2018), which ruled in plaintiff’s favor and remand this case to the trial court for further proceedings.I. FACTUAL AND PROCE......
  • Brady v. Portland State Univ.
    • United States
    • U.S. District Court — District of Oregon
    • 1 Abril 2019
    ...have prohibited retaliation by a person or an employee of the educational program, but it chose not to. Cf. McLaughlin v. Wilson, 292 Or. App. 101, 106-07, 423 P.3d 133, 136, review allowed, 363 Or. 744, 430 P.3d 561 (2018) (In the context of ORS 659A.030 and the anti-retaliation provision ......
  • Caswell v. Day Law & Assocs., P. C. (In re Lang)
    • United States
    • Oregon Court of Appeals
    • 18 Febrero 2021 a question of statutory construction.We review for legal error a trial court's interpretation of a statute. McLaughlin v. Wilson , 292 Or. App. 101, 105, 423 P.3d 133 (2018), aff'd , 365 Or. 535, 449 P.3d 492 (2019). In interpreting a statute, "we examine the text and context of the stat......
  • Dep't of Human Servs. v. T.B. (In re S. A. B.)
    • United States
    • Oregon Court of Appeals
    • 7 Junio 2023
    ... ... include other provisions of the same statute and related ... statutes" we look to ORS 419B.090. Mcaughlin v ... Wilson, 292 Or.App. 101, 105, 423 P.3d 133 (2018), ... affd, 365 Or. 535, 449 P.3d 492 (2019) (internal ... quotation marks omitted). ORS 419B.090(c) ... ...
  • Request a trial to view additional results

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