McLaughlin v. Wilson

Decision Date12 September 2019
Docket NumberSC S066047
Citation449 P.3d 492,365 Or. 535
Parties Nicole MCLAUGHLIN, Respondent on Review, v. Kenneth WILSON, M.D., Petitioner on Review.
CourtOregon Supreme Court

365 Or. 535
449 P.3d 492

Nicole MCLAUGHLIN, Respondent on Review,
Kenneth WILSON, M.D., Petitioner on Review.

SC S066047

Supreme Court of Oregon.

Argued and submitted May 15, 2019
September 12, 2019

Thomas M. Christ, Sussman Shank LLP, Portland, argued the cause and filed the briefs for petitioner on review.

Andrew Altschul, Buchanan Angeli Altschul & Sullivan LLP, Portland, argued the cause and filed the brief for respondent on review.

Shenoa Payne, Richardson Wright LLP, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Kistler, Senior Justice pro tempore.**


449 P.3d 494
365 Or. 537

Oregon’s civil rights laws make it an "unlawful employment practice" for an employer to discriminate on the basis of any of several protected characteristics. The law protects that right and others by making it unlawful "[f]or any person to discharge, expel or otherwise discriminate against any other person because that other person" has opposed or reported certain unlawful practices. ORS 659A.030(1)(f). In this case, we are asked to decide the scope of that antiretaliation provision. The question before us is whether the retaliation prohibited by ORS 659A.030(1)(f) includes disparaging statements made by defendant, plaintiff’s former supervisor, to an admissions officer at plaintiff’s MBA program. Defendant offers two reasons why it would not be: he is not a "person," and his statements to the admissions officer did not "otherwise discriminate against" plaintiff, within the meaning of those terms as used in the statute. As we explain, we disagree with both arguments. "Person," as statutorily defined, includes all "individuals," and "otherwise discriminate against" is 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.


Because this case arose out of defendant’s motion to dismiss, "we assume that the facts alleged in the complaint are true and draw all reasonable inferences in plaintiff’s favor." Bailey v. Lewis Farm, Inc ., 343 Or. 276, 278, 171 P.3d 336 (2007). In 2012, plaintiff began working at Hope Orthopedics as a medical assistant. While employed at Hope, plaintiff worked closely with defendant, an orthopedic surgeon. Defendant supervised plaintiff’s work and was responsible for training her. Initially, defendant was pleased with plaintiff’s work and gave her a very positive performance evaluation. When plaintiff later applied to an MBA program at Willamette University, she asked defendant to provide a reference, and he wrote her a glowing one.

365 Or. 538

Over the next few months, defendant began to sexually harass plaintiff and attempted to initiate a sexual relationship with her. Because of defendant’s authority at Hope, and because defendant had served as plaintiff’s reference for her MBA application, plaintiff feared retaliation if she reported defendant’s behavior. In June 2013, plaintiff was accepted into Willamette’s MBA program. After plaintiff told defendant that she would be leaving Hope soon, defendant’s conduct worsened. He continued his pattern of sexual harassment and criticized plaintiff’s religious beliefs. Plaintiff then reported defendant’s behavior to Hope.

Hope placed plaintiff on paid leave while it investigated her complaints, and plaintiff ultimately left Hope to enter the MBA program without returning to work. Plaintiff’s complaints against defendant were resolved in August 2013. Five days later, defendant went to the office of the Director of Admissions at plaintiff’s MBA program and asked to speak to the admissions director about "the person who I wrote a reference for." Defendant told the admissions director, falsely, that plaintiff had "left her past two jobs by getting large amounts of money and a gag order," and that defendant was concerned about plaintiff manipulating male faculty members. Those statements were spread to others at Willamette, including the dean of the MBA program, and plaintiff experienced unwanted attention and suffered emotional distress.

Plaintiff filed this action against defendant, raising several claims, including defamation, intentional infliction of emotional distress, and the claim that is relevant to this appeal,

449 P.3d 495

retaliation under ORS 659A.030(1)(f).1 That statute makes it an "unlawful employment practice"

"[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."
365 Or. 539

ORS 659A.030(1)(f). Defendant moved to dismiss plaintiff’s retaliation claim, arguing that, because he had not been plaintiff’s employer when the alleged retaliation had occurred, he could not be held liable under that provision. The trial court granted defendant’s motion. The case proceeded to trial, and plaintiff ultimately prevailed on her defamation claim but lost on her intentional infliction of emotional distress claim.

Plaintiff appealed, assigning error to the trial court’s dismissal of her retaliation claim. Plaintiff argued that ORS 659A.030(1)(f) prohibits discrimination by "any person" and therefore was applicable to defendant. Defendant countered that the statute was not intended to reach coemployees, and that, in any event, the retaliation that plaintiff had alleged—retaliation occurring outside of the workplace—was not the type of discrimination proscribed by ORS 659A.030(1)(f).

The Court of Appeals ruled in plaintiff’s favor, concluding both that defendant was a "person" within the meaning of ORS 659A.030(1)(f), and that his statements to the director of admissions of plaintiff’s MBA program fell within the ambit of the statute. McLaughlin , 292 Or. App. 101, 423 P.3d 133. Defendant then petitioned for review, and we allowed defendant’s petition.


A. Text and Context

The disagreement between the parties begins with the term "person." Defendant argues that that, as used in ORS 659A.030(1)(f), "person" does not include an individual like himself, who was not an employer. He observes that, prior to 2001, former ORS 659.030(1)(f) (1999), renumbered as 659A.030(1)(f) (2001), had applied only to "any employer, labor organization or employment agency," and he contends that "any person" retains the same meaning, in light of legislative history that, he argues, indicates that the wording change was not intended to be substantive. The meaning of "any person" is a question of statutory interpretation, and we approach it using the methodology outlined in State v. Gaines , 346 Or. 160, 206 P.3d 1042 (2009). We begin with an

365 Or. 540

examination of text and context, and then proceed to consideration of legislative history, to the extent that we find it to be helpful. Id. at 171-72, 206 P.3d 1042.

ORS 659A.030(1)(f) makes it an unlawful employment practice

"[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."

(Emphasis added). The term "person" is one that the legislature defines, along with others "[a]s used in *** chapter" 659A, in ORS 659A.001 :

"(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.

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

"(c) For purposes of ORS 659A.145 and 659A.421 and the application of any federal housing law, a fiduciary, mutual company, trust or unincorporated organization."

We are obliged to apply that definition of the term. State v. Couch , 341 Or. 610, 619, 147 P.3d 322 (2006) ; see also

449 P.3d 496

Comcast Corp. v. Dept. of Rev. , 356 Or. 282, 295, 337 P.3d 768 (2014) ("When the legislature provides a definition of a statutory term, we of course use that definition."). And, when we do so, it seems obvious that defendant would quality as a "person" within the meaning of ORS 659A.001(9)(a) : he is an individual.

We understand defendant to argue, however, that there is an implicit, contextual qualification to the first use of the word "person" in paragraph (f) of ORS 659A.030(1), such that "person" does not refer to all persons encompassed within the statutory definition. Rather, he contends that "person" refers to only persons who are employers and perhaps...

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