Summerfield v. Or. Liquor Control Comm'n

Decision Date28 August 2020
Docket NumberCC CV12100185 (SC S066377)
Citation366 Or. 763,472 P.3d 231
Parties Gene SUMMERFIELD, Petitioner on Review, v. OREGON LIQUOR CONTROL COMMISSION, Respondent on Review.
CourtOregon Supreme Court

Michael E. Rose, Portland, argued the cause and filed the briefs for petitioner on review.

Colm Moore, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Caitlin Mitchell, Johnson Johnson Lucas & Middleton PC, Eugene, 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 Judge, Justice pro tempore.**


Plaintiff brought this civil action against defendant, his former employer, raising multiple claims of unlawful employment actions. A jury rejected all but one of plaintiff's claims. On the single claim on which the jury found for plaintiff, it did not award him any damages. Consequently, the trial court entered a judgment in defendant's favor. Plaintiff appealed, and the Court of Appeals affirmed. Summerfield v. OLCC , 294 Or. App. 415, 431 P.3d 424 (2018). For the reasons explained below, we also affirm.


We begin with an overview of the procedural and historical facts. Additional facts that are relevant to the issues on review are set out in the discussion section below, where we address each of the issues separately.

Plaintiff, Gene Summerfield, worked for defendant, Oregon Liquor Control Commission (OLCC), in its warehouse. In his complaint in this civil action, plaintiff alleged that he and other African-Americans had been subjected to racial discrimination and racial harassment at the warehouse. Plaintiff also alleged that he had repeatedly told defendant about the discrimination and harassment, but defendant had failed to take effective corrective action. Instead, according to plaintiff, defendant had passed him over for promotions and had promoted persons who had discriminated against him. Plaintiff further alleged that, after he filed a racial discrimination complaint against defendant with the Bureau of Labor and Industries (BOLI), he found a noose in his work area. Plaintiff reported the noose and left work. He filed a worker's compensation claim for acute stress, and the claim was accepted. Plaintiff received medical treatment for his acute stress, and his medical provider eventually released him to return to work at a site other than the OLCC warehouse. Plaintiff requested reemployment, but—according to plaintiff's complaint in this action—defendant failed to reemploy him in an available and suitable position; instead, defendant initiated an investigation into allegations that plaintiff had engaged in workplace misconduct four years earlier. After the investigation, which plaintiff alleged was biased against him and incomplete, defendant terminated plaintiff's employment.

Based on those allegations, plaintiff made several claims for relief, four of which are relevant on review. Those four claims were brought pursuant to ORS 659A.885(1), which provides that "[a]ny person claiming to be aggrieved" by certain unlawful employment practices "may file a civil action in circuit court." ORS 659A.885(1) further provides that, "[i]n any action under this subsection, the court may order injunctive relief or any other equitable relief that may be appropriate, including but not limited to reinstatement or the hiring of employees with or without back pay."

Plaintiff's first claim, an employment discrimination claim, alleged that defendant "discriminated against Plaintiff in the terms and conditions of his employment, which constitutes racial discrimination" and "created a hostile work environment." Plaintiff's second claim, which he entitled "retaliation," alleged that defendant "discriminated against Plaintiff for opposing unlawful employment practices." His third claim, which he entitled "whistleblowing," alleged that defendant "discriminated and retaliated against Plaintiff in the terms and conditions of his employment due to his complaints of racial harassment, discrimination, and retaliation." A fourth claim, which he entitled "failure to reemploy," alleged that defendant "failed to reemploy Plaintiff in an available and suitable position after his repeated requests."1

Plaintiff alleged that, as a consequence of defendant's conduct, he "suffered lost wages" and "emotional distress and upset" and related harms. He sought economic damages, noneconomic damages, reinstatement, and injunctive relief, as well as "any and all other relief as [the trial court] may deem proper."

The case proceeded to a jury trial, during which the parties presented competing versions of events, which they previewed in their opening statements. In his opening statement, plaintiff told the jury that he would prove: A group of his co-workers created a hostile work environment. He reported their misconduct to defendant's managers. Although the managers took some actions in response to the complaints, their actions were inadequate and ineffective. In order to work in a position other than the warehouse, plaintiff sought promotions, but did not receive any. Frustrated with defendant's failure to respond to his complaints about the discrimination and harassment, plaintiff filed a complaint with BOLI, which was dismissed because it was untimely. Shortly thereafter, plaintiff found a noose in his work area. He made an immediate report to management and then left work. Later, he reported the incident to the police.

Plaintiff filed a workers’ compensation claim for acute stress. The claim was accepted, and plaintiff received treatment. Plaintiff's treatment provider eventually released plaintiff to return to work, and plaintiff requested reemployment.

After learning that plaintiff had filed this action, one of his co-workers, Staten, told defendant's managers that, four years earlier, plaintiff had sold him prescription drugs and had loaned him money, charging 50 percent interest. The managers investigated those claims. While the investigation was pending, defendant duty-stationed plaintiff at home. Based on the results of the investigation, defendant terminated plaintiff for misconduct.

In contrast to plaintiff's version of events, defendant explained in its opening statement that it had thoroughly investigated plaintiff's allegations of discrimination and harassment by his coworkers and had responded appropriately. Regarding plaintiff's report about the noose, defendant stated that a manager had determined that the noose was made of twine, which was used throughout the warehouse. The manager had conducted several interviews but had been unable to determine who put the noose where plaintiff saw it, how long it had been there, and whether it had been put there for plaintiff to discover. The police, who investigated the incident based on plaintiff's report, also were unable to make those determinations. Regarding Staten's allegation that plaintiff had sold him prescription drugs, defendant explained that, when Staten reported the conduct, it investigated and determined that plaintiff in fact had sold the drugs to Staten, which was a violation of OLCC's policy regarding appropriate workplace behavior. Based on that and other conduct, defendant terminated plaintiff's employment.

Plaintiff presented his case-in-chief, after which defendant moved for a directed verdict on plaintiff's "failure to reemploy" claim. That claim was based on ORS 659A.046(1), which provides:

"A worker who has sustained a compensable injury and is disabled from performing the duties of the worker's former regular employment shall, upon demand, be reemployed by the worker's employer at employment which is available and suitable."

In support of its motion, defendant argued that plaintiff was required to present, but had failed to present, evidence that defendant had available and suitable employment for plaintiff at the relevant time. In response, plaintiff conceded that he had not presented any such evidence but contended that he was not required to do so. The trial court accepted defendant's argument and granted defendant's motion for a directed verdict.

After the presentation of evidence, the trial court instructed the jury on the law governing plaintiff's remaining claims, viz ., his claims for employment discrimination, retaliation, and whistleblowing. Regarding the retaliation claim, the trial court instructed the jury that plaintiff had to prove that (1) plaintiff had opposed or reported racial discrimination or harassment in the workplace, (2) defendant had subjected him to "an adverse employment action," and (3) defendant had subjected him to the adverse employment action because of plaintiff's opposition to, or report of, racial discrimination or harassment in the workplace. Both parties submitted instructions that defined "adverse employment action." The trial court declined to give any of the proffered definitions, stating that it did not think that an instruction defining "adverse employment action" was necessary.

The trial court provided the jury with a verdict form. "Part I" of the form posed questions to the jury about each claim that was being submitted to it. "Part II" of asked, "What damages, if any, should plaintiff be awarded?" and included blank spaces for the jury to insert numbers for economic and noneconomic damages.

The jury rejected plaintiff's first claim; on the verdict form, it answered the questions about that claim in the negative, finding that defendant had not "intentionally discriminate[d] against plaintiff because of his race" and had not "subject[ed] plaintiff to a racially hostile work environment by his co-workers." The jury also rejected plaintiff's retaliation claim, finding that defendant had not "retaliate[d...

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5 cases
  • Neel v. Lee
    • United States
    • Oregon Court of Appeals
    • December 8, 2021
    ...for unjust enrichment. See Summerfield v. OLCC , 294 Or. App. 415, 419, 431 P.3d 424 (2018) (issue abandoned on appeal), aff'd , 366 Or. 763, 472 P.3d 231 (2020) ; see also Ailes v. Portland Meadows, Inc. , 312 Or. 376, 380-81, 823 P.2d 956 (1991) (issue not raised in opening brief). On app......
  • Yeatts v. Polygon Nw. Co.
    • United States
    • Oregon Court of Appeals
    • July 14, 2021 give a requested instruction ‘is harmless if there is little likelihood that the error affected the verdict.’ " Summerfield v. OLCC , 366 Or. 763, 781, 472 P.3d 231 (2020) (quoting Ossanna , 365 Or. at 219, 445 P.3d 281 ). "Conversely, an error in failing to give an instruction is prejud......
  • Neel v. Lee, A170408
    • United States
    • Oregon Court of Appeals
    • December 8, 2021
    ...justification for unjust enrichment. See Summerfield v. OLCC, 294 Or.App. 415, 419, 431 P.3d 424 (2018) (issue abandoned on appeal), affd, 366 Or. 763, 472 P.3d 231 (2020); see also Ailes v. Portland Meadows, Inc., 312 Or. 376, 380-81, 823 P.2d 956 (1991) (issue not raised in opening brief)......
  • Tsur v. Intel Corp.
    • United States
    • U.S. District Court — District of Oregon
    • October 8, 2021
    ... ... Oregon law requires a similar showing ... Summerfield v. Or. Liquor Control Comm'n , 366 ... Or. 763, 780 (2020) ... ...
  • Request a trial to view additional results

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