Reddy v. Cascade General, Inc.

• Decision Date: 22 April 2009
• Docket Number: 050505073.,A132819.
• Parties: Laxminarsimha REDDY, Plaintiff-Appellant, v. CASCADE GENERAL, INC., an Oregon corporation, Defendant-Respondent.
• Court: Oregon Court of Appeals

206 P.3d 1070

227 Or. App. 559

Laxminarsimha REDDY, Plaintiff-Appellant, v. CASCADE GENERAL, INC., an Oregon corporation, Defendant-Respondent.

050505073.

A132819.

Court of Appeals of Oregon.

Argued and Submitted August 26, 2008.

Decided April 22, 2009.

Charles Robinowitz, Portland, argued the cause and filed the briefs for appellant.

Matthew J. Kalmanson argued the cause for respondent. With him on the brief was Janet M. Schroer, Portland.

Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ROSENBLUM, Judge.

HASELTON, P.J.

Plaintiff, a longshore worker, appeals the trial court's dismissal, on summary judgment, of his wrongful discharge claim against his former employer, a ship repair yard. Plaintiff contends that the trial court erred in determining that plaintiff's common-law claim for wrongful discharge was displaced by the existence of an adequate statutory remedy afforded to workers under section 49 of the Longshore and Harbor Workers' Compensation Act (LHWCA). 33 U.S.C. § 948a.¹ We conclude that the trial court erred in dismissing plaintiff's claim for wrongful discharge, because the retaliatory discharge remedy available to plaintiff under the LHWCA did not offer adequate relief. Consequently, we reverse the trial court's grant of summary judgment for defendant and remand for further proceedings.

Except as noted, the historical facts are not disputed. Plaintiff worked as a laborer at defendant's ship repair yard in Portland from 1996 until his discharge on May 27, 2004. In the summer of 2003, plaintiff was injured in two separate work-related incidents. On August 18, 2003, plaintiff sustained an on-the-job injury to both knees. Following a second on-the-job injury to the right leg shin bone on September 4, 2003, plaintiff sought medical attention, and defendant assigned plaintiff "light duty" work. Plaintiff subsequently filed claims for workers' compensation benefits under the LHWCA.

On May 14, 2004, plaintiff hired a lawyer to represent him on his LHWCA claims. Plaintiff's counsel notified defendant of his representation of plaintiff on May 17, 2004, and 10 days later, on May 27, 2004, defendant terminated plaintiff's employment.²

On May 13, 2005, plaintiff filed this action, asserting a common-law claim for wrongful discharge, requesting a jury trial, and seeking both economic and noneconomic damages. Defendant subsequently moved for summary judgment. Because the substance of the parties' contentions on summary judgment is central to our understanding of the issues properly presented for our review, we describe the parties' submissions, the colloquy with the trial court, and the court's disposition in considerable detail.

In moving for summary judgment, defendant asserted that "the common law remedy of wrongful discharge is not available to plaintiff" because "an adequate statutory remedy exists to protect plaintiff's interests." As support for that position, defendant invoked Oregon statutes, specifically ORS 659A.043 and ORS 659A.046, which pertain to reinstatement remedies for workers who have sustained compensable injuries.

In response, plaintiff asserted that, because of his status as a maritime employee subject to the LHWCA, he was not a subject worker for purposes of Oregon workers' compensation laws and, thus, statutorily prescribed rights of reinstatement under those laws and statutory antiretaliation protections for employees invoking those laws were inapposite. In particular, plaintiff explained, ORS 656.027(4) "specifically excludes workers who have claims under a federal workers' compensation law." Accordingly, plaintiff agreed that he had "no claim under ORS 659A.040, 659A.043 or 659A.046[,] and did not allege a claim under either statute." (Original capitalization omitted.)

In its reply memorandum in support of summary judgment, defendant shifted its position and advanced a qualitatively different contention. Rather than arguing that plaintiff's common-law wrongful discharge claim had been displaced by an adequate remedy under Oregon statutes,³ defendant asserted, for the first time, that LHWCA section 49, 33 U.S.C. section 948a, had the same preclusive effect. That statute provides, in part, as follows:

"It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim compensation from such employer, or because he has testified or is about to testify in a proceeding under this chapter. * * * Any employee so discriminated against shall be restored to his employment and shall be compensated by his employer for any loss of wages arising out of such discrimination: Provided, That if such employee shall cease to be qualified to perform the duties of his employment, he shall not be entitled to such restoration and compensation."

(Emphasis in original.)

In support of that argument, defendant advanced two overarching and disjunctive arguments. First, as a matter of preemption, the LHWCA, and specifically section 49, provided plaintiff's "exclusive remedy" for a wrongful discharge in retaliation for invoking rights under the LHWCA. Second, because section 49 contains "adequate remedies" for retaliatory wrongful discharge, a common-law claim was not cognizable under Oregon law, specifically as amplified in Walsh v. Consolidated Freightways, 278 Or. 347, 563 P.2d 1205 (1977), and Farrimond v. Louisiana-Pacific Corp., 103 Or.App. 563, 798 P.2d 697 (1990).

Before the summary judgment hearing, plaintiff moved to strike portions of defendant's reply memorandum, including, as pertinent here, those pertaining to the effect of LHWCA section 49. Specifically, plaintiff sought to strike defendant's "exclusivity/preemption" argument and defendant's disjunctive "adequacy of remedy" argument.

In the ensuing hearing, the trial court considered both the summary judgment motion and the motion to strike. At the outset, the court stated its belief that defendant's motion for summary judgment and supporting memorandum had sufficiently raised the contention that LHWCA section 49 afforded an alternative "adequate remedy" but that defendant had failed to timely assert the "exclusivity/preemption" contention because that matter was not raised until defendant filed its reply memorandum:

"The adequate remedy speaks to the availability of a remedy under Oregon common law. They won't recognize the tort of wrongful discharge if you have an adequate statutory remedy.

"That is different than federal preemption, which is [a] federal remedy trumps any state remedy, statutory or common law, no matter what the Oregon Supreme Court might think about the matter. And I don't see preemption as being the basis of your original motion.

"So to the extent I see a distinction between those two—we can maybe talk about that later—I'm not going to entertain argument on that now as a basis for Summary Judgment * * *."

Thereafter, when plaintiff's counsel disputed that the issue of the adequacy of the remedy under LHWCA section 49 was properly before the court because defendant's motion and initial memorandum had referred solely to the availability of Oregon statutory remedies, the court disagreed, reasoning that a single sentence in defendant's initial memorandum referring parenthetically to LHWCA section 49, but not arguing that it was applicable, was sufficient to alert plaintiff to the substance of defendant's "adequacy of remedy" argument.⁴

Plaintiff's counsel then addressed the substance of defendant's argument that section 49 of the LHWCA described an adequate remedy:

"For example, it allows for reinstatement and it allows for past damages, but it doesn't have any front pay in there, and it also doesn't allow any damages for emotional distress. Nor does it allow a jury trial, which the state [remedy] does."

The trial court responded:

"Well, I have always assumed that the statutory remedy does not have to be identical to the common law remedy, or no one would ever bother to assert a common law remedy you have all you wanted under the statute. But the remedies don't have to be identical in the available damages. They just have to be comparable in the injury that they are providing relief for."

After additional argument, the trial court ruled from the bench, granting summary judgment for defendant on the basis that "the federal statutory remedy is adequate and precludes a common law wrongful discharge claim in this instance." The trial court's written opinion and order reiterated that rationale, as well as its ruling on plaintiff's motion to strike:

"I agree with plaintiff that defendant should not be allowed to raise issues on reply that it did not raise in its original motion. Accordingly, I grant plaintiff's motion to strike the preemption * * * sections of defendant's reply memorandum.

"* * * [D]efendant argued in its motion and reply that plaintiff has an adequate statutory remedy under the retaliatory discharge provisions of the LHWCA. Plaintiff does not contend otherwise. He did not argue, either in his memorandum or at oral argument, that the federal remedy is not in fact [] available to him in the circumstances of this case, or that the relief available there is inadequate to protect the public interests that underlie the common law tort of wrongful discharge. Accordingly, I agree with defendant that the federal remedy displaces the common law remedy. On that basis, I grant defendant's motion for summary judgment * * *."

(Emphasis added.)

On appeal, plaintiff assigns error to the trial court's allowance of summary judgment for defendant. We review a grant of summary judgment "to determine whether any genuine issue of material fact exists and whether defendant is entitled to judgment as a matter of law." Herman v. Valley Ins. Co., 145 Or.App. 124, 127-28, 928 P.2d 985 (1996), rev. den., 325 Or. 438, 939 P.2d 621 (1997). See also ORCP...