Plotkin v. State Accident Ins. Fund

• Decision Date: 08 September 2016
• Docket Number: A159273
• Citation: 385 P.3d 1167,280 Or.App. 812
• Parties: John PLOTKIN, Plaintiff–Appellant, v. STATE ACCIDENT INSURANCE FUND, an independent public corporation; Catherine Travis; Robb Van Cleave; Krishna Balasubramani ; and Kevin Jensen, individually and in their capacity as members of the State Accident Insurance Fund's Board of Directors; Chris Davie and Ryan Fleming, individual State Accident Insurance Fund employees sued in their individual capacities, Defendants, and Brenda Rocklin, an individual, Defendant–Respondent.
• Court: Oregon Court of Appeals

280 Or.App. 812

385 P.3d 1167

John PLOTKIN, Plaintiff–Appellant,

v. STATE ACCIDENT INSURANCE FUND, an independent public corporation; Catherine Travis; Robb Van Cleave; Krishna Balasubramani ; and Kevin Jensen, individually and in their capacity as members of the State Accident Insurance Fund's Board of Directors; Chris Davie and Ryan Fleming, individual State Accident Insurance Fund employees sued in their individual capacities, Defendants,andBrenda Rocklin, an individual, Defendant–Respondent.

A159273

Court of Appeals of Oregon.

Argued and submitted May 9, 2016.

September 8, 2016

Andrew Altschul, Portland, argued the cause for appellant. With him on the briefs were Dana L. Sullivan and Buchanan Angeli Altschul & Sullivan LLP.

William F. Gary, Eugene, argued the cause for respondent. With him on the brief were C. Robert Steringer, Brett Applegate, and Harrang Long Gary Rudnick P.C.

Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

SHORR, J.

This tort action arises from plaintiff John Plotkin's short-lived tenure as CEO of SAIF Corporation (SAIF) and, for purposes of this appeal, involves the grant of a special motion to strike under ORS 31.150, Oregon's Anti–Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, which creates a two-step procedure for expeditiously dismissing unfounded lawsuits attacking certain types of public speech.

SAIF is an independent public corporation that provides workers' compensation insurance to Oregon employers. Three months after plaintiff started as CEO, SAIF's board dismissed him. After his termination, plaintiff brought claims against multiple defendants. This appeal pertains only to plaintiff's claim for intentional interference with economic relations against defendant Brenda Rocklin, who immediately preceded him as CEO of SAIF. Plaintiff appeals the trial court's grant of defendant's special motion to strike that claim under ORS 31.150. He argues, among other things, that the court erred in concluding (1) that defendant met her initial burden to show that plaintiff's claim came within the reach of ORS 31.150, and (2) that plaintiff failed to meet his evidentiary burden at the second step of the anti-SLAPP procedure. As explained below, we conclude that, although the trial court's threshold determination that plaintiff's claim is susceptible to an anti-SLAPP motion to strike was correct, it erred in concluding that plaintiff failed to satisfy his burden at the second step of the analysis, and in granting the motion to strike on that basis. Accordingly, we reverse and remand for further proceedings.¹

To provide context for the underlying facts, we briefly describe the purpose and procedure of ORS 31.150, set out below, 280 Or. App. at 821, 385 P.3d at 1173, and our standard of review. "Oregon's anti-SLAPP statute creates an expedited procedure for dismissal of certain nonmeritorious civil cases without prejudice at the pleading stage." Neumann v. Liles , 358 Or. 706, 723, 369 P.3d 1117 (2016) ; see Staten v. Steel , 222 Or.App. 17, 29, 191 P.3d 778 (2008), rev. den. , 345 Or. 618, 201 P.3d 909 (2009) (the purpose of ORS 31.150 is "to provide for the dismissal of claims against persons participating in public issues * * * before the defendant is subject to substantial expenses in defending against them" through the creation of "a special motion to strike against a claim that arises out of the exercise of the right of petition or free speech in connection with a public issue or an issue of public interest").

That statute outlines a procedure that "requires that the court engage in a two-step burden-shifting process." Young v. Davis , 259 Or.App. 497, 501, 314 P.3d 350 (2013). When a defendant brings a motion to strike under ORS 31.150, the court must first determine "whether the defendant has met its initial burden to show that the claim against which the motion is made ‘arises out of’ one or more protected activities" described in ORS 31.150(2). Id. If the defendant meets its burden, "the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case," and "[i]f the plaintiff succeeds in meeting that burden, the special motion to strike must be denied." Id.(describing ORS 31.150(3) (internal quotation marks omitted)).

We review a trial court's ruling on an ORS 31.150 special motion to strike for legal error. Yes On 24–367 Committee v. Deaton , 276 Or.App. 347, 350–51, 367 P.3d 937 (2016). In conducting that review, we take the facts from the pleadings and from the supporting and opposing declarations and affidavits submitted to the trial court, ORS 31.150(4), and we view the facts underlying plaintiff's claim in the light most favorable to plaintiff. Mullen v. Meredith Corp. , 271 Or.App. 698, 702, 353 P.3d 598 (2015).

Thus, in reviewing the grant of the motion to strike, we do not find or decide the facts in this case. Rather, we consider plaintiff's evidence and draw the reasonable inferences from that evidence in favor of plaintiff. OEA v. Parks , 253 Or.App. 558, 566–67, 291 P.3d 789 (2012), rev. den. , 353 Or. 867, 306 P.3d 639 (2013). Thus, where there is a conflict between the parties' proffered factual narratives and evidence—and there are many in this case—we necessarily adopt the version most favorable to plaintiff, so long as it is supported by substantial evidence. See Young , 259 Or.App. at 508, 314 P.3d 350 (stating that "the presentation of substantial evidence to support a prima facie case is, in and of itself , sufficient to establish a probability that the plaintiff will prevail" and, thus, survive the motion to strike) (emphasis in original). "[W]e consider defendant['s] opposing evidence only to determine if it defeats plaintiff['s] showing as a matter of law." Mullen , 271 Or.App. at 708, 353 P.3d 598 (internal quotation marks omitted). We state the following facts consistent with that standard of review.

Plaintiff replaced defendant as SAIF's CEO on February 3, 2014. Defendant, who was retiring, stayed on for a one-month transition period. During that time, plaintiff and defendant spent several days on a business trip, during which plaintiff "told [defendant] a story about milking goats in relation to a cheese-making class [he] took with [his] wife." Although plaintiff may have referred to goat "teats" in telling the story, plaintiff states that he "never used the word ‘tits,’ whether in relation to goats, women, or anything else." Defendant did not find those comments to be offensive or sexually discriminatory.

On April 22, well after the transition period ended, defendant had dinner with Ryan Fleming, SAIF's vice president of operations and human resources. Fleming told defendant that several employees had complained about "inappropriate comments plaintiff had made in and around the workplace," and sought defendant's "advice and counsel" on how to handle that matter. Defendant relayed to Fleming the statements plaintiff made during their joint business trip. According to notes Fleming made following that dinner, defendant told Fleming that plaintiff had "talked about a woman's ‘tits' " during the business trip.

In the period leading up to plaintiff's termination in early May, defendant maintained regular contact with Fleming and another SAIF representative, Chris Davie, who served on SAIF's board and as its vice president of corporate policy and external affairs. Defendant also spoke with SAIF board chair Catherine Travis during that crucial period.² For instance, defendant had multiple lengthy calls with Fleming on May 1, 2, and 3, the last day being the day that Fleming and Travis called plaintiff to ask him to resign. Defendant also spoke with Davie, who was involved in the discussions regarding terminating plaintiff, several times for nearly three hours in total from April 29 to May 2.

Board chair Travis called defendant on May 1 concerning various complaints regarding plaintiff; the possibility that plaintiff might be terminated; and whether defendant (or others) would be interested and suitable for replacing plaintiff as an interim CEO if he were terminated. During that conversation about the various complaints against plaintiff, Travis stated that she knew "that plaintiff had said something to [defendant]."

In turn, defendant "only confirmed that plaintiff had, in fact, said something to me."

Travis and Fleming then called plaintiff at home on Saturday, May 3. Travis told plaintiff that they had the board votes to terminate him and requested his resignation. Plaintiff, who had not previously been informed of any allegations against him, had "no idea" what was going on. When he inquired why he was being asked to resign, Travis explained only that plaintiff had "allegedly engaged in actions that could trigger claims based upon ‘protected class status.’ "

Plaintiff refused to resign. On May 9, he received a letter informing him that SAIF's board of directors had dismissed him. The dismissal was controversial. Some SAIF executives believed that it was the product of a turf war within SAIF's executive ranks and that defendant, the retired former CEO, was overly involved in those matters. It later came to light that Fleming's notes of plaintiff's statements to defendant and certain SAIF employees conflicted with their recollection of their statements, to the extent that several employees claimed that Fleming's reporting of the events was false and inaccurate. All of the individuals who had supposedly witnessed inappropriate comments later denied that the incidents had occurred or asserted that the content of the statements was decidedly different (and far less likely to be viewed as offensive) than what Fleming had reported. Plaintiff later learned that Davie had "coordinated the messaging" around the termination, and that Fleming and Davie had orchestrated the termination without informing other...