Olsen v. Deschutes County

Decision Date25 January 2006
Docket Number00-CV-0624-MA; A123197.
Citation127 P.3d 655,204 Or. App. 7
PartiesMisa OLSEN, Melanie Reese, and Denise Tomitz, Respondents, v. DESCHUTES COUNTY, a political subdivision, Appellant.
CourtOregon Supreme Court

Mark P. Amberg argued the cause and filed the briefs for appellant.

Roxanne L. Farra, Bend, argued the cause and filed the briefs for respondents.

Before EDMONDS, Presiding Judge, and WOLLHEIM* and SCHUMAN, Judges.


Defendant Deschutes County appeals a judgment following a jury verdict in favor of plaintiffs Olsen, Tomitz, and Reese, three former employees of its Mental Health Department. The case presents several issues arising from facts incident to the termination of their employment: the relationship between statutes of limitation for different wrongful termination actions, the validity of defendant's claimed immunity under statutes establishing workers' compensation remedies as exclusive, exhaustion requirements, and the sufficiency of evidence to establish an assault. We affirm.

Plaintiffs worked at Park Place, a county respite care facility for the mentally ill. They cared for clients directly and assisted other mental health professionals. Plaintiffs alleged that their supervisor, Muir, inadequately supervised the facility by failing to provide safety precautions for dealing with HIV-infected and hepatitis-infected patients, failing to keep records of client medication, and, in violation of department policy, admitting and retaining aggressive clients, one of whom, G, burst into an office and bolted threateningly toward Olsen and another employee. Plaintiffs asserted that staff apprised Muir and Muir's supervisors of their concerns, but nobody adequately responded to them, and, under Muir's leadership, the work environment became combative and intolerable.

Plaintiff Tomitz was terminated after having several disagreements with Muir concerning safety issues, reporting those safety concerns to Muir's supervisors, requesting further training from the Mental Health Department, and submitting a grievance concerning an allegedly retaliatory performance evaluation. Olsen and Reese contend (and the jury agreed, and defendant does not contest on appeal) that they were constructively discharged after repeatedly requesting further health and safety measures, which, they assert, were never provided. Each plaintiff alleged that the working conditions caused them sleeplessness, anxiety, and emotional distress.

All three plaintiffs brought actions for negligence and common-law wrongful termination. Olsen and Tomitz also brought an action under ORS 659.035, part of the general unlawful employment practices law, for violation of ORS 659.510,1 the public employee whistleblower law, and Olsen sued for assault, asserting that defendant was jointly or vicariously liable for G's outburst. The jury returned a verdict in favor of each plaintiff on each claim with the exception of Olsen's whistleblower claim. Defendant appeals from the subsequently entered judgment, assigning error to the trial court's denial of several motions, each of which is described below.

In its first assignment of error, defendant contends that, because the pleadings on their face showed that the action was not timely filed, the trial court should have granted defendant's motion to dismiss Tomitz's whistleblower claim. ORCP 21 A(9). According to defendant, Tomitz brought her claim under ORS 659.510, the public employee whistleblower law, which states, in part:

"(1) * * * [N]o public employer shall:

"* * * * *

"(b) Prohibit any employee from disclosing, or take or threaten to take disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of:

"(A) A violation of any federal or state law, rule or regulation by the state, agency or political subdivision;

"(B) Mismanagement, gross waste of funds or abuse of authority or substantial and specific danger to public health and safety resulting from action of the state, agency or political subdivision[.]"

It follows, according to defendant, that the statute authorizing civil remedies for violation of ORS 659.510 establishes the operative limitations on Tomitz's claim. That statute is ORS 659.530, and it states, in part:

"[A]n employee alleging a violation of ORS 659.510 may bring a civil action for appropriate injunctive relief or damages, or both, within 90 days after the occurrence of the alleged violation."

Thus, defendant contends, Tomitz had to bring her whistleblower action "within 90 days" after "the alleged violation," that is, of her termination in retaliation for complaints concerning safety practices at Park Place. Tomitz was terminated on August 7, 2000, and her complaint was filed in December 2000, exceeding the purported 90-day limitation.

Tomitz, for her part, contends that her claim was brought not under the whistleblower statute, but under the more general unlawful employment practices statute, ORS 659.035. That statute specifies that violation of ORS 659.510, the whistleblower statute, is one among a variety of prohibited "unlawful employment practice[s]," violation of which "subjects the violator to the same civil and criminal remedies and penalties as provided in * * * [ORS] 659.121 * * *." ORS 659.035(2). ORS 659.121(3), in turn, with an exception not relevant to this case, establishes a one-year statute of limitation. Tomitz filed her claim within that one-year period.2

Tomitz, in other words, argues that her whistleblower claim was brought under the general unlawful employment practices statute and that statute's one-year limitation applies, while defendant argues that Tomitz's action was brought directly under the whistleblower statute and that statute's 90-day limitation period applies.

Resolution of this dispute requires us to construe the amended complaint. In doing so, "it is necessary to view each pleading as a whole, and not to isolate any single allegation as determinative of the nature of the suit." Grider v. Turnbow, 162 Or. 622, 632, 94 P.2d 285 (1939). "`Where it is doubtful upon what theory the pleading is drawn, it should be construed according to that theory which is most consistent with the facts alleged, and allegations not in harmony therewith may be considered as surplusage.'" Lawrence Whse., Inc. v. Best Lbr. Co., Inc., 202 Or. 77, 84, 271 P.2d 661 (1954) (quoting Lytle v. Payette-Oregon Irr. Dist., 175 Or. 276, 293, 152 P.2d 934 (1944)). The court should allow "reasonable latitude" in construing the pleadings "in order to reach a decision on the merits if it is reasonably possible to do [so] without prejudice to the substantive rights of either party." Gaswint v. Case, 265 Or. 248, 256, 509 P.2d 19 (1973).

The disputed claim is plaintiffs' First Claim for Relief.3 Its caption declares it to be a claim for "[v]iolation of ORS 659.510, 659.035, and 659.530 * * *." Plaintiffs' citation to ORS 659.510 and ORS 659.035 supports the contention that, although violation of ORS 659.510 provided the basis for the first claim for relief, the vehicle for their relief was ORS 659.035, which lists, as an unlawful employment practice, "violat[ion of] ORS 659.510." Had plaintiffs simply asserted a claim under the whistleblower law itself, they would not have cited ORS 659.035 at all. The specifications within the First Claim for Relief and plaintiffs' prayer further support Tomitz's argument. Plaintiffs explicitly characterized defendant's actions as "unlawful employment practice[s]," using terms that are contained in ORS 659.035 but not ORS 659.510 or ORS 659.530.

Viewing the complaint as a whole, then, we conclude that Tomitz alleged that defendant violated the unlawful employment practices statute, ORS 659.035, in one of the ways specified in that statute, that is, by violating ORS 659.510. The plain meaning of ORS 659.035 cannot support defendant's theory that, as a matter of statutory construction, when violation of ORS 659.510 serves as a basis for relief for ORS 659.035, the claim is governed by the 90-day statute of limitation in ORS 659.530. In declaring that it is an unlawful employment practice for a "public employer to violate ORS 659.510," ORS 659.035(1)(b) simply specifies that a whistleblower violation is one form of prohibited conduct. It does not incorporate a separate statute of limitation for a claim based on violation of ORS 659.510 but brought under ORS 659.035.

We are not persuaded by defendant's argument that the 90-day period must apply because it appears in a statute that is later and more specific than the statute in which the one-year limitation appears. The "later and more specific" maxim applies when statutes conflict. ORS 174.020(2). Applying the maxim necessarily renders one of the statutes—the older and more general—meaningless, and should therefore be used only when a conflict actually exists and cannot be avoided. Cadle Co. II v. Schellman, 126 Or.App. 372, 378, 868 P.2d 773 (1994) (statutes on same subject should be interpreted so as to give effect to all). Here, the 90-day limitation under the whistleblower statute and the one-year limitation under the unlawful employment practices statute do not, in fact, conflict. As we interpret them, the 90-day limitation in ORS 659.530 applies to actions brought solely under that statute; when, as here, the action is brought under ORS 659.035, then the limitation period within that statute applies.

In sum, the one-year statute of limitation of ORS 659.121(3) governs. Under that statute, the limitation period runs from the time of the alleged violation. Tomitz's claim was brought within one year of her termination, and so the trial court did not err in denying defendant's motion to dismiss.

In its second assignment of error, defendant asserts that the trial court should have allowed the motion to dismiss plaintiffs'...

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