Vergara v. Patel

288

Argued and submitted March 27, 2019; portion of judgment dismissing

plaintiff’s statutory claims reversed and remanded, otherwise affirmed

July 8, 2020

Margarita VERGARA,

an individual,

Plaintiff-Appellant,

v.

Komal PATEL,

an individual;

Jay Maharaj, Inc., an Oregon corporation,

dba University Inn & Suites; and

Alko 100 LLC, an Oregon limited liability corporation,

dba Eugene University Inn & Suites,

Defendants-Respondents.

Lane County Circuit Court

17CV35103; A167209

471 P3d 141

Plaintiff brought against defendants two statutory employment claims and

a common-law wrongful discharge claim. She timely filed the original complaint

naming an individual as the defendant, but her amended complaint, naming two

business entities as defendants, was filed after the limitations period had ran on

the statutory claims. The trial court granted summary judgment to defendants

on the grounds that the statutory claims were time-barred and that the wrong-

ful discharge claim was unavailable to plaintiff. Held: (1) With respect to the

statutory claims, plaintiff’s amended complaint related back to her original com-

plaint under ORCP 23 C, because the business entities should reasonably have

understood from the original complaint that they were the intended defendants.

(2) With respect to the wrongful discharge claim, the existence of functionally

adequate statutory remedies precluded plaintiff from pursuing that common-law

remedy.

Portion of judgment dismissing plaintiff’s statutory claims reversed and

remanded; otherwise affirmed.

R. Curtis Conover, Judge.

Kate Suisman argued the cause and filed the briefs for

appellant.

Alexandra P. Hilsher argued the cause for respondents.

Also on the brief were Lillian Marshall-Bass and Hershner

Hunter, LLP.

Cite as 305 Or App 288 (2020) 289

Before Ortega, Presiding Judge, and Powers, Judge, and

Linder, Senior Judge.

ORTEGA, P. J.

Portion of judgment dismissing plaintiff’s statutory claims

reversed and remanded; otherwise affirmed.

290 Vergara v. Patel

ORTEGA, P. J.

After being terminated as a hotel housekeeper,

plaintiff brought this action against defendants, alleging

statutory employment claims under ORS 654.062(5) and

ORS 659A.199 and a common-law wrongful discharge claim.

She timely filed the original complaint naming an individ-

ual as the defendant, but her amended complaint, naming

two business entities as defendants, was filed after the lim-

itations period had ran on the statutory claims. Defendants

moved for summary judgment on all of the claims, on the

grounds that the statutory claims were time-barred and that

the wrongful discharge claim was unavailable to plaintiff.

The trial court granted defendants’ motion in its entirety.

On appeal, plaintiff challenges the trial court’s dismissal of

all of her claims.

We conclude, with respect to the statutory claims,

that plaintiff’s amended complaint relates back to her origi-

nal complaint under ORCP 23 C, because the business enti-

ties should reasonably have understood from the original

complaint that they were the intended defendants. With

respect to the wrongful discharge claim, we conclude that

the existence of functionally adequate statutory remedies

precludes plaintiff from pursuing that common-law remedy.

Accordingly, we reverse and remand the trial court’s dis-

missal of plaintiff’s statutory claims but affirm its dismissal

of plaintiff’s wrongful discharge claim.

I. FACTUAL AND PROCEDURAL HISTORY

In reviewing the trial court’s grant of summary

judgment to defendants, we view the record and all reason-

able inferences drawable therefrom in the light most favor-

able to plaintiff, the nonmoving party, to determine whether

any genuine issue of material fact exists and whether defen-

dants are entitled to judgment as a matter of law. ORCP

47 C; Jones v. General Motors Corp., 325 Or 404, 408, 939

P2d 608 (1997).

Plaintiff was employed as a hotel housekeeper from

January to August 2016. In that capacity, she frequently

came into contact with syringes, drugs, blood, vomit, and

toilet facilities. Plaintiff complained to her supervisor and

Cite as 305 Or App 288 (2020) 291

hotel management many times about being provided with

inadequate or no gloves to safely perform her work. After

contracting a serious infection that her doctor believed was

likely due to exposure at work, plaintiff spoke to her super-

visor again about needing gloves to protect herself. She

believed that working without gloves would be unsafe and

detrimental to her and others’ health. Despite the insistence

of her supervisor and the hotel manager that she work with-

out gloves, plaintiff refused, and she was subsequently fired.

At the time of plaintiff’s termination, the hotel was

registered to Jay Maharaj, Inc., under the assumed business

name “University Inn & Suites.” In December 2016, Alko

100 LLC replaced Jay Maharaj, Inc., as registrant of the

hotel and amended the assumed business name to “Eugene

University Inn & Suites.”1 Komal Patel was a shareholder

and the registered agent of Jay Maharaj, Inc., and she was

a managing member and the registered agent of Alko 100

LLC. One other person was a shareholder of Jay Maharaj,

Inc., and member of Alko 100 LLC.

Plaintiff filed her original complaint alleging two

statutory employment claims on August 14, 2017, one day

before the applicable limitations period ran.2 The caption of

that complaint named as the defendant “Komal Patel, an

individual, dba University Inn & Suites,” a factually incor-

rect statement. In the body of the complaint, plaintiff alleged

that, at all material times, “Defendant Komal Patel[ ] was

an individual doing business as University Inn & Suites.”

The original complaint did not otherwise refer to Patel by

name. Rather, in setting out the substantive allegations

underlying her claims, plaintiff asserted that “Defendant”

1

Neither party argues that Alko 100 LLC’s status as successor registrant to

Jay Maharaj, Inc., affects this appeal.

2

Before initiating this action, plaintiff had filed a complaint with the Oregon

Bureau of Labor and Industries (BOLI). Defendants requested that the trial court

take judicial notice of the BOLI record. Although the court did not expressly do

so, it discussed details of the BOLI proceeding with the parties at the hearing on

the summary judgment motion. Therefore, we consider the BOLI record to be a

part of the summary judgment record.

That record indicates that BOLI dismissed plaintiff’s complaint and, pur-

suant to ORS 659A.880, gave her 90-day notice of her right to file this action

in state court. The parties do not dispute that that placed the filing deadline at

August 15, 2017.

292 Vergara v. Patel

employed her “as a housekeeper in Defendant’s hotel” and

that “Defendant unlawfully discharged [her].” The origi-

nal complaint also did not mention the business entities by

name. On September 8, 2017, plaintiff served Patel with a

copy of the original complaint and a summons addressed to

“Komal Patel.”

Plaintiff’s counsel averred that, on October 3, 2017,

defendants’ counsel informed plaintiff that “she believed

the individual defendant, Komal Patel, had been incorrectly

sued and that the entities, Jay Maharaj and Alko 100, as

the operator of the Hotel during [plaintiff’s] employment

and the successor operator, were the correct defendants.”

Plaintiff thereafter served copies of the original complaint

and summonses on “Komal Patel, Registered Agent of Jay

Maharaj, Inc., dba University Inn & Suites” and “Komal

Patel, Registered Agent of Alko 100 LLC, dba Eugene

University Inn & Suites.”3

On October 9, 2017, plaintiff filed the amended

complaint, the caption of which named the defendants as

follows: “Komal Patel, an individual, Jay Maharaj, Inc., an

Oregon corporation, dba University Inn & Suites, and Alko

100 LLC, an Oregon limited liability corporation [sic], dba

Eugene University Inn & Suites.” The amended complaint

included allegations that:

“2. During plaintiff’s employment, Defendant Jay

Maharaj, Inc., was an Oregon corporation doing business

as University Inn & Suites.

“3. University Inn & Suites (the ‘Hotel’) is a hotel

located in Eugene, Oregon, in Lane County.

“4. Defendant Komal Patel is a natural person who

has owned, managed, and operated the Hotel since at least

2006.

“5. Prior to the incorporation of Defendant Jay

Maharaj, Defendant Patel owned, managed and operated

3

Although the trial court case register shows that service on the business

entities occurred on October 11, 2017, the affidavits of service state that service

occurred on October 7, 2017. In any event, it is undisputed that all defendants

were served with the original complaint within 60 days of its filing. See ORS

12.020(2) (action deemed commenced on date of filing of complaint if service

effected within 60 days of the filing).

Cite as 305 Or App 288 (2020) 293

the Hotel as an individual using the assumed business

name University Inn.

“6. Defendant Jay Maharaj is a successor in interest to

Defendant Komal Patel.

“7. In or around December 2016, Defendant Alko 100

LLC registered the assumed business name of Eugene

University Inn & Suites. Defendant Alko 100 continued

operating the Hotel.

“8. Defendant Alko 100 is a successor in interest to

Defendants Jay Maharaj and Komal Patel.

“9. Defendant Patel was a shareholder of Defendant

Jay Maharaj and is a managing member of Defendant Alko

100.

“10. Defendant Patel continues to own, manage, and

operate the Hotel.”

The amended complaint did not otherwise refer to any of

the defendants by name, and plaintiff’s allegations on the

statutory claims were largely unchanged, except that the

amended complaint used the plural term “Defendants”

where the original complaint had used the singular term

“Defendant.”

The amended complaint also added a common-law

wrongful discharge claim. Under that claim, plaintiff alleged

that defendants terminated her after she complained about

workplace health and safety conditions and the risk of the

spread of communicable diseases. Plaintiff also alleged that

Oregon law recognizes the important public policies of pro-

tecting a worker’s right to a healthy and safe workplace and

preventing the spread of communicable diseases.

Defendants moved for summary judgment, contend-

ing (1) that plaintiff’s statutory claims were time-barred

because the amended complaint was untimely and did not

meet ORCP 23 C’s requirements for relating back to the fil-

ing date of the original complaint; (2) that the adequacy of

statutory remedies precluded the common-law wrongful dis-

charge claim; and (3) that Patel was not a proper defendant,

because plaintiff had made no allegations in the original or

amended complaint “against Patel, individually, related to

294 Vergara v. Patel

plaintiff’s working environment or the circumstances sur-

rounding her termination.”

Plaintiff countered that summary judgment was

inappropriate as a matter of law or, alternatively, that the

trial court should grant a continuance so that she could

engage in discovery to develop the facts of the case.

After a hearing on the matter and taking it under

advisement, the trial court granted defendants’ motion for

summary judgment in its entirety and without explanation.

II. ANALYSIS

Plaintiff appeals from the ensuing general judg-

ment, arguing that defendants were not entitled to sum-

mary judgment, because (1) her statutory claims were timely

commenced under ORCP 23 C and (2) she was not precluded

from asserting the wrongful discharge claim. On appeal,

both parties essentially reprise their arguments below.

A. Timeliness of Statutory Claims

With respect to the timeliness of the statutory

claims, the parties dispute whether plaintiff “changed the

parties” when she explicitly named the business entities

as defendants for the first time in the amended complaint.

That question affects how ORCP 23 C, which governs the

relation back of amended pleadings, applies in this case.

ORCP 23 C provides, in full:

“Whenever the claim or defense asserted in the

amended pleading arose out of the conduct, transaction, or

occurrence set forth or attempted to be set forth in the orig-

inal pleading, the amendment relates back to the date of

the original pleading. An amendment changing the party

against whom a claim is asserted relates back if the fore-

going provision is satisfied and, within the period provided

by law for commencing the action against the party to be

brought in by amendment, such party (1) has received such

notice of the institution of the action that the party will not

be prejudiced in maintaining any defense on the merits,

and (2) knew or should have known that, but for a mis-

take concerning the identity of the proper party, the action

would have been brought against the party brought in by

amendment.”

Cite as 305 Or App 288 (2020) 295

The first sentence of that rule states the general provision

that an amended pleading relates back to the filing date of

an original pleading so long as the claims arose out of the

same conduct, transaction, or occurrence. Harmon v. Fred

Meyer, 146 Or App 295, 298, 933 P2d 361 (1997). The sec-

ond sentence of that rule imposes additional notice require-

ments and “applies only to amendments ‘changing the party

against whom a claim is asserted.’ ” Id. (quoting ORCP 23 C).

In determining whether an amendment changes

a party, we have distinguished between “misnomers” and

“misidentifications.” Worthington v. Estate of Milton E.

Davis, 250 Or App 755, 760, 282 P3d 895, rev den, 352 Or

565 (2012). A “misnomer” is a plaintiff’s mistake “in naming

th[e] person or entity [to sue], that is, an error in stating

what the [correctly chosen] defendant is called.” Id. (empha-

sis in original). A “misidentification,” on the other hand, is

a plaintiff’s mistake “in choosing which person or entity to

sue.” Id. (emphasis in original). An amendment to correct a

misidentification changes the party and, therefore, triggers

the second sentence of ORCP 23 C; an amendment to correct

a misnomer does not, but rather relates back in accordance

with the first sentence of ORCP 23 C. Id. at 759-60. Plaintiff

argues that this is a case of misnomer. As we explain, we

agree.

Plaintiff primarily relies on Harmon, 146 Or App

at 297, a “misnomer” case in which the plaintiff, intending

to sue The Interlake Companies, Inc., named in the orig-

inal complaint “Interlake, Inc., a Delaware Corporation,”

although no such entity operated in Oregon at that time.

However, the plaintiff correctly served the complaint on

The Interlake Companies, Inc. Id. Afterward, he filed an

amended complaint to replace “Interlake, Inc., a Delaware

Corporation,” with “The Interlake Companies, Inc., a

Delaware corporation, aka Interlake, Inc.” Id.

In holding that the amended complaint merely cor-

rected a misnomer and did not “chang[e] the party” so as

to trigger the second sentence of ORCP 23 C, we stated the

following test:

“If a plaintiff states a name other than defendant’s,

but serves the correct entity with a copy of the original

296 Vergara v. Patel

complaint, and the correct entity should reasonably have

understood from the pleadings that it is the entity intended

to be sued, then an amendment of the pleadings to correct

the misnomer does not bring in a new entity and is not a

change in party.”

Id. at 299-300 (emphasis added). As we further explained,

for the purpose of identifying the sued party, “the court

must consider the complaint as a whole, including the alle-

gations,” and a “natural extension of that analysis requires

that the summons also be considered.” Id. at 300. Applying

that analysis in Harmon, we made several observations:

(1) the name shown in the caption of the original complaint

was substantially similar to the defendant’s correct name;

(2) the allegations in the complaint correctly described the

defendant’s business and its relationship to the plaintiff;

(3) the summons correctly stated the defendant’s name and

was properly served; and (4) there was no dispute that the

plaintiff intended to sue the defendant when he filed and

served his original complaint. Id. at 301. Based on the fore-

going factors, we concluded that the original complaint had

brought in The Interlake Companies, Inc., as a defendant,

but merely misnamed it; as such, the amendment to correct

its name did not constitute a change in parties. Id.

We agree that Harmon supplies the applicable legal

test for determining whether there has been a change in

the parties. See Mitchell v. The Timbers, 163 Or App 312,

318-19, 987 P2d 1236 (1999) (applying “the rule set forth

in Harmon” to determine whether an amendment to correct

a defendant’s name relates back to the original complaint).

That inquiry focuses on whether, when served with a copy

of the original complaint, “the correct entity should reason-

ably have understood from the pleadings that it is the entity

intended to be sued[.]” Harmon, 146 Or App at 299. Applied

to the present case—in which the individual named in the

original complaint was the registered agent for the business

entities named in the amended complaint—the question

before us becomes whether Patel, when served with the orig-

inal complaint naming as the defendant “Komal Patel, an

individual, dba University Inn & Suites,” should reasonably

have understood from the pleadings that the business enti-

ties Jay Maharaj, Inc., and Alko 100 LLC were the intended

Cite as 305 Or App 288 (2020) 297

defendants. We conclude that Patel should reasonably have

so understood.

“[T]he caption of a complaint is not dispositive,” and

one may look to “the allegations in the body, among other

things,” to determine the intended defendant. Johnson v.

Manders, 127 Or App 147, 149-50, 872 P2d 420, rev den,

319 Or 149 (1994). Here, aside from the caption and a body

paragraph, the original complaint made no other reference,

implicit or explicit, to Patel.4 Rather, the allegations were

against a generically termed “Defendant” and unquestion-

ably concerned plaintiff’s employment at and termination

from “Defendant’s” hotel, “University Inn & Suites.” The

words in the caption naming the defendant might have

started with “Komal Patel, an individual,” but the rest of the

complaint made clear that the operative words were those

that followed: “dba University Inn & Suites.” Put differently,

viewing the complaint in its entirety, it is implicit that the

intended defendant of plaintiff’s employment action was the

entity doing business as the hotel from which she was fired,

rather than Patel individually, regardless of whether Patel

was doing business as that hotel. We also note that defen-

dants do not contend that the allegations were insufficient

for them to identify the implicated hotel. Compare Mitchell,

163 Or App at 319 (observing that there was no suggestion

of “any actual confusion about the nature or identity” of

the tavern where the plaintiff sustained his injury—a fac-

tor that supported the conclusion that the defendant, who

owned that tavern, in fact understood that he was the entity

intended to be sued).

Defendants argue that, even if Patel knew that she

was factually not an individual doing business as “University

Inn & Suites,” as the original complaint alleged, she would

reasonably not understand from the original complaint that

the intended defendants were, specifically, Jay Maharaj, Inc.

(operator of the hotel at the time of plaintiff’s termination)

4

Defendants recognized as much when they argued on summary judgment

that Patel was not a proper defendant, because the original complaint stated

no allegations “against Patel, individually, related to plaintiff’s working envi-

ronment or the circumstances surrounding her termination”: “[T]here are no

claims asserted against her. There’[re] no ultimate facts alleged against her

individually.”

298 Vergara v. Patel

and Alko 100 LLC (operator of the hotel at the time that this

action was commenced). However, the record indicates that

Patel, or at least her attorney, in fact believed that plaintiff

had incorrectly sued Patel individually and that she should

have sued the business entities Jay Maharaj, Inc., and Alko

100 LLC instead. That demonstrates that “the four corners

of the original complaint” contained information sufficient

for identifying the business entities as the intended defen-

dants. See Krauel v. Dykers Corp., 173 Or App 336, 341, 21

P3d 1124 (2001) (examining “the four corners of the origi-

nal complaint” to determine against whom the claim was

asserted).

Defendants stress that Patel was a layperson; even

if her attorney could identify the correct defendants from the

original complaint, she should reasonably not be expected

to have that ability. Leaving aside the business sophistica-

tion that is suggested by the many corporate hats that Patel

wore, we are still not persuaded. Patel first learned about

plaintiff’s employment concerns when she received notice

of plaintiff’s BOLI complaint, which had been filed prior to

commencement of this action. When Patel viewed the orig-

inal complaint in this case, she should have understood it

with the BOLI complaint serving as context.

That context includes that the allegations in the

BOLI complaint and in the original complaint were simi-

lar; that the respondent in the BOLI matter was identi-

fied as “Komal Patel Dba University Inn”; and that BOLI

had copied “Komal Patel, Registrant” and “Komal Patel,

Authorized Representative/Agent” in correspondences. The

BOLI record also shows that “Respondent” participated in

the proceeding, denying plaintiff’s allegations on the merits.

Given that the caption “Komal Patel Dba University Inn” did

not prevent Patel from identifying the correct respondent

and participating on the merits before BOLI, the substan-

tially similar caption of the original complaint in this case

(“Komal Patel, an individual, dba University Inn & Suites”)

likewise should not prevent Patel from understanding who

the intended defendants were, thereby procedurally barring

plaintiff’s claims. We conclude that Patel should reasonably

have understood that plaintiff had intended to sue the legal

Cite as 305 Or App 288 (2020) 299

entities doing business as “University Inn & Suites” rather

than to sue her individually.

Defendants raise two other arguments for why Patel

would reasonably not have understood from the original

complaint that Jay Maharaj, Inc., and Alko 100 LLC, rather

than Patel individually, were the intended defendants. First,

defendants point to the fact that plaintiff continued naming

Patel as an individual defendant in the amended complaint.

Second, defendants argue that Patel was confusingly served

with copies of the original complaint three times, each time

accompanied by a summons addressed to Patel differently—

once in September 2017 in her individual capacity and twice

in October 2017 in her capacity as registered agent of the

business entities after Patel’s attorney contacted plaintiff.

Both arguments are flawed as a matter of law for the same

reason.

The Harmon test asks whether the entity served

with a copy of the original complaint “should reasonably

have understood from the pleadings that it is the entity

intended to be sued[.]” Harmon, 146 Or App at 299 (empha-

sis added). That analysis is concerned with the context that

existed at the time the entity considered the original plead-

ings, such as the earlier BOLI proceeding here. Conversely,

immaterial to the analysis is “hindsight” based on events

subsequent to the original pleadings, such as the amended

complaint and the October 2017 services of the original com-

plaint on Patel in her capacity as registered agent of the

business entities. Otherwise, the question whether an entity

should reasonably have understood that it was the entity

intended to be sued would always be a moving target that

depends on when it is asked.

Moreover, in this case, plaintiff amended the com-

plaint and served Patel in her “registered agent” capacities

only after defendants’ counsel had stated that the busi-

ness entities, rather than Patel individually, were the cor-

rect defendants. In other words, defendants had already

formed the understanding that the business entities were

the intended defendants; plaintiff’s subsequent filing of the

amended complaint and service of summonses on those enti-

ties merely confirmed as much.

300 Vergara v. Patel

We also reject defendants’ contention that Krauel,

173 Or App at 336, a “misidentification” case, is materially

indistinguishable from the present case. In Krauel, the

plaintiff was injured in a bowling alley and brought a negli-

gence claim against “Dykers Court [sic], dba Grand Central

Bowl[.]” Id. at 338 (alteration in original). The complaint

alleged that Dykers operated the bowling alley, but in fact,

it simply owned the premises on which the bowling alley was

located. Id. After the statute of limitations ran, the plaintiff

filed amended complaints to correct the spelling of Dykers’

name and to add as a defendant “Cascade Entertainment,”

the entity that actually operated the bowling alley. Id. The

plaintiff then served both Dykers and Cascade with sum-

monses and copies of the original and amended complaints.

Id. at 338-39.

We affirmed the trial court’s dismissal of that case

based on our conclusion, “[a]fter viewing the four corners of

the original complaint,” that the “plaintiff’s original com-

plaint state[d] a claim only against Dykers.” Id. at 341. But

that conclusion was unaccompanied by any discussion about

what was contained in the complaint that helped to identify

the intended defendant. Here, as we explained above, the

allegations of plaintiff’s original complaint were such that

Patel should reasonably have understood that the intended

defendant was the operator of the hotel that had fired plain-

tiff. Furthermore, Krauel is factually inapposite, because

Dykers and Cascade were “unrelated” parties, id., whereas

here, Patel was indisputably the central figure linking

together the named defendants in the original complaint

(herself) and amended complaint (business entities of which

she was shareholder, managing member, and registered

agent).

Finally, to the extent that defendants rely on our

description of Krauel as a case involving a plaintiff’s fail-

ure “to identify all of the potentially liable defendants,”

Worthington, 250 Or App at 762, to argue that a similar

failure here makes this also a misidentification case, that

argument is unavailing. The original complaint, as dis-

cussed above, effectively identified the business entities

in substance, even though it did not correctly name them.

Cite as 305 Or App 288 (2020) 301

Therefore, if plaintiff had failed to identify any defendant in

the original complaint, that would have been Patel the indi-

vidual, because, despite the caption, the complaint asserted

no claims or ultimate facts against her individually. And

defendants do not contend that it was the addition of Patel

as a defendant that prevents the amended complaint from

relating back.5

Because we conclude that Patel should reasonably

have understood from the original complaint that plain-

tiff intended to sue Jay Maharaj, Inc., and Alko 100 LLC,

the amended complaint merely corrected a misnomer.

Accordingly, the amended complaint did not change the

parties, and it relates back to the original complaint under

the first sentence of ORCP 23 C. The trial court erred in

granting summary judgment to defendants on plaintiff’s

statutory claims. Given our conclusion, we do not address

plaintiff’s alternative argument that the trial court abused

its discretion in denying her request for a continuance to

engage in discovery.

B. Availability of Wrongful Discharge Claim

We next address the trial court’s dismissal of plain-

tiff’s wrongful discharge claim. Plaintiff argues that the

facts alleged in her amended complaint give rise to a cause of

action for wrongful discharge, because she was terminated

not only for acting to protect her individual health and safety

in the workplace, but also for acting to fulfill an important

societal obligation: preventing the spread of a communicable

disease to the public. In plaintiff’s view, no adequate statu-

tory remedy exists to vindicate the wrong that defendants

committed when they terminated her for fulfilling that soci-

etal obligation, and defendants have made no showing of a

legislative intent to preclude the common-law remedy for

wrongful discharge. Plaintiff essentially takes the position

that, unless there exist both an adequate statutory remedy

for the allegedly wrongful conduct and a legislative intent to

preclude the common-law remedy, she may bring the wrong-

ful discharge claim.

5

Plaintiff’s opening brief notes that, by not appealing the trial court’s judg-

ment in Patel’s favor, she has effectively dropped Patel from this case.

302 Vergara v. Patel

By contrast, defendants contend that the sole rele-

vant question is whether an adequate remedy exists for the

allegedly wrongful conduct, and they urge us to answer that

question in the affirmative. Defendants also assert that the

case law does not support plaintiff’s distinction between pro-

tected action that is motivated by concern for her own safety

and action that is motivated by concern for the safety of

others; in defendants’ view, recognition of such a distinction

would significantly expand the tort of wrongful discharge.

To facilitate our analysis, we begin with a review

of the relevant case law. The common-law tort of wrongful

discharge is a public-policy exception to Oregon’s general

rule of “at-will” employment. Babick v. Oregon Arena Corp.,

333 Or 401, 407, 40 P3d 1059 (2002); see also Patton v. J. C.

Penney Co., 301 Or 117, 120, 719 P2d 854 (1986), abrogated

on other grounds by McGanty v. Staudenraus, 321 Or 532,

901 P2d 841 (1995) (“at-will” rule permits an employer to

“discharge an employe[e] at any time and for any reason,

absent a contractual, statutory or constitutional require-

ment” to the contrary). The Oregon Supreme Court first rec-

ognized the common-law tort of wrongful discharge in Nees

v. Hocks, in which the employee was discharged for fulfilling

jury duty obligations. 272 Or 210, 218, 536 P2d 512 (1975)

(discharge of an “at-will” employee may be actionable when

it is “for such a socially undesirable motive that the employer

must respond in damages for any injury done”). Soon after

Nees, the court considered whether a claim for wrongful dis-

charge was available to the plaintiffs in two cases: Walsh v.

Consolidated Freightways, 278 Or 347, 563 P2d 1205 (1977),

and Brown v. Transcon Lines, 284 Or 597, 588 P2d 1087

(1978). The parties’ primary disagreement—over whether

the availability of a wrongful discharge claim depends on

the adequacy of existing remedies alone (as defendant pos-

its) or on a legislative intent to preclude the common-law

remedy as well (as plaintiff urges)—traces back to those two

decisions.

In Walsh, notwithstanding its acknowledgment

that “the community has a strong interest in maintain-

ing safe working conditions[,]” the court determined that

the employee (a dockworker who had been discharged for

Cite as 305 Or App 288 (2020) 303

complaining to his supervisors about workplace safety viola-

tions) could not pursue a wrongful discharge claim, because

he already had “a remedy under existing law for his wrong-

ful discharge.” 278 Or at 351. The adequacy of that alternate

remedy, the court explained, was the “one decisive differ-

ence” between Walsh and Nees. Id. Notably, Walsh did not

inquire whether the legislature had intended, in providing

the statutory remedy, to preclude the common-law remedy.

However, a year later in Brown, the court revisited

the question whether the plaintiff (this time, an employee

who had been discharged for filing a workers’ compensa-

tion claim) may pursue a wrongful discharge claim, and it

framed the “primary focus of the problem” thus: “whether

by the enactment of [a later] statute the Oregon legislature

abolished a previously existing common law cause of action.”

284 Or at 602. The Brown court stated:

“As a general rule, if a statute which provides for a new

remedy shows no intention to negate, either expressly or by

necessary implication, a pre-existing common law remedy,

the new remedy will be regarded as merely cumulative,

rather than exclusive, with the result that a plaintiff may

resort to either the pre-existing remedy or the new remedy.

This rule is particularly applicable when the new statutory

remedy is not an adequate one.”

Id. at 610-11 (footnotes omitted). Applying that rule, the

court concluded that the statutory remedies available at the

time of the plaintiff’s discharge were not exclusive, because

the legislative history did not evince the legislature’s express

or implied intent, in adopting the statutory provisions, to

abrogate or supersede preexisting common-law remedies.

Id. at 611-12.

In thus shifting the focus of the inquiry—from the

adequacy of existing remedies to the legislative intent behind

the enactment of a particular remedy—the court appeared

to take a different approach in Brown than it did in Walsh

to address the same legal question. The court attempted to

reconcile the decisions, however, stating:

“We do not believe that our decision in this case is nec-

essarily inconsistent with our decision in [Walsh]. Not only

was the alleged reason for the discharge of the plaintiff in

304 Vergara v. Patel

that case different from the alleged reason for the discharge

of this plaintiff, but this court concluded in Walsh (at 352)

that existing remedies then available to him under federal

statutes (under which he had, in fact, also filed a complaint)

were ‘adequate to protect both the interests of society * * *

and the interests of employees’ in such cases, within the

meaning of the rule as previously stated in [Nees].”

Id. at 613 (omission in original). The court also intimated

that the statutory remedies available at the time of the

plaintiff’s discharge were inadequate. Id. at 612. Thus,

although Brown began by shifting the analysis to focus on

“legislative intent to abrogate,” it seemed to return to “ade-

quacy of existing remedies” as the dispositive factor.

Later Oregon Supreme Court decisions continued

with that seeming analytical tension. Compare Delaney

v. Taco Time Int’l., 297 Or 10, 16, 681 P2d 114 (1984)

(“[W]here an adequate existing remedy protects the inter-

ests of society[,] * * * an additional remedy of wrongful dis-

charge will not be accorded.”) with Holien v. Sears, Roebuck

and Co., 298 Or 76, 689 P2d 1292 (1984) (an employee

discharged for resisting sexual harassment may bring a

wrongful discharge claim, “unless the provisions of ORS

chapter 659 demonstrate the legislature’s intent not only to

provide what it considered to be adequate remedies to an

employe[e] such as plaintiff, but by implication show a legis-

lative intent to abrogate or supersede any common law rem-

edy for damages”).

As it did in Brown, the court in Holien first con-

cluded that nothing evinced that the legislature, in provid-

ing a statutory remedy for the wrongful conduct, intended to

eliminate the common-law remedy for wrongful discharge.

298 Or at 96. Then notably, as it had in Brown, the court

proceeded to address the issue of the adequacy of existing

statutory remedies, concluding that they “fail[ed] to capture

the personal nature of the injury done to a wrongfully dis-

charged employe[e] as an individual and * * * to appreciate

the relevant dimensions of the problem.” Id. at 97. Again,

despite placing the primary focus of its analysis on “legisla-

tive intent to abrogate,” the court returned to “adequacy of

existing remedies” as a component of the analysis.

Cite as 305 Or App 288 (2020) 305

This court’s attempts to adhere to the foregoing prec-

edents have further entrenched the inconsistency in Oregon’s

wrongful discharge law. Two cases relied on by the parties in

this case are illustrative. First, in Olsen v. Deschutes County,

204 Or App 7, 127 P3d 655, rev den, 341 Or 80 (2006), we

considered whether public employees who were fired for rais-

ing concerns about safety violations at a respite care facil-

ity may bring a wrongful discharge claim. Citing Holien, we

stated that, to preclude the plaintiffs’ claim, the defendant

“must demonstrate both that the remedy for violation of ORS

659.035 is adequate in comparison to the remedy available

under a common-law tort action and also that the legisla-

ture intended the statute to abrogate the common law.” Id. at

14 (emphases added). Thus, in Olsen, we expressly stated—

where the Oregon Supreme Court arguably has not—that

both the requirements of “adequate existing remedies” and

“legislative intent to abrogate the common-law remedy” must

be present. Applying that rule, we concluded that the defen-

dant met the first but not the second requirement; therefore,

the plaintiffs’ wrongful discharge claim was not precluded

as a matter of law. Id. at 14-17.

Then, in Deatherage v. Johnson, 230 Or App 422,

215 P3d 125 (2009), we considered whether an employee who

had been fired in retaliation for reporting workplace safety

violations to the Oregon Occupational Safety and Health

Division may pursue a wrongful discharge claim. Although

the plaintiff argued that Olsen controlled, we rejected that

case’s applicability, stating that it “does not address a claim

under the statute at issue in this case, ORS 654.062.” Id. at

425. Ultimately, we adhered to Walsh’s singular focus on the

adequacy of statutory remedies and held that, “unless the

Supreme Court repudiates or modifies its holding in Walsh,

a plaintiff alleging retaliatory termination must bring that

claim, if at all, under either a federal or a state statute.”

Id. at 426.

Returning to the present case, plaintiff argues that

Olsen governs and defendants contend that Deatherage con-

trols. For two reasons, we agree with defendant. First, we

observe that wrongful discharge was not intended to be a

tort of general application; rather, it is “an interstitial tort,

306 Vergara v. Patel

designed to fill a gap where a discharge in violation of pub-

lic policy would otherwise not be adequately remedied.”

Dunwoody v. Handskill Corp., 185 Or App 605, 613, 60 P3d

1135 (2003). The Olsen majority’s conclusion that both ade-

quate statutory remedies and a legislative intent to abrogate

the common-law remedy are required to preclude a claim for

wrongful discharge would seem to enlarge the tort in a way

that contravenes that principle.

Second, as in Deatherage and unlike in Olsen, one of

the statutes at issue in this case is ORS 654.062. The Walsh

court stated:

“We feel that existing remedies are adequate to protect

both the interests of society in maintaining safe working

conditions and the interests of employees who are dis-

charged for complaining about safety and health problems.

We also note that ORS 654.062(5) now provides a similar

remedy under state law although, admittedly, these provi-

sions were not in effect at the time of the conduct in ques-

tion. Therefore, we find it unnecessary to extend an addi-

tional tort remedy to cover this kind of situation.”

278 Or at 352-53 (footnote omitted). Walsh is directly on

point, and we are bound by that decision. Therefore, we con-

clude that adequate statutory remedies exist under ORS

654.062 to vindicate the wrongful conduct that plaintiff

alleges here, and that factor alone precludes her wrongful

discharge claim.

Finally, we address plaintiff’s argument regarding

the significance of the dual motivations behind her refusal

to work without protective gloves—to protect individual

health and safety and to prevent the spread of communi-

cable diseases. Essentially, she posits that, even if ORS

654.062 functions as an adequate remedy to protect her

personal interest in a safe workplace, it does not function

as an adequate remedy to protect the public interest in dis-

ease prevention. To the extent that the different motivations

underlying an employee’s singular protected action matters,

and assuming that ORS 654.062 is inadequate to vindicate

the wrong that defendants caused in terminating plaintiff

for acting to fulfill a societal obligation, plaintiff still has not

established a wrongful discharge claim.

Cite as 305 Or App 288 (2020) 307

Our courts have recognized two bases for a wrong-

ful discharge claim: (1) “when the discharge is for exercising

a job-related right that reflects an important public policy”

and (2) “when the discharge is for fulfilling some import-

ant public duty[.]” Babick, 333 Or at 407 (citations omitted).

Plaintiff argues that this is a “public duty” case, because

she was fulfilling an important societal obligation by act-

ing to stop the spread of diseases.6 In reviewing wrongful

discharge claims, courts “must find a public duty, not create

one, using constitutional and statutory provisions and case

law.” Id. at 407-08 (emphasis in original; citation and inter-

nal quotation marks omitted); see also Lamson v. Crater Lake

Motors, Inc., 346 Or 628, 637, 216 P3d 852 (2009) (stating

same). In Babick, the Oregon Supreme Court considered the

viability of the wrongful discharge claim of private security

guards who were fired for arresting concert-goers engaging

in assaultive behaviors and illicit substance possession. The

court explained that it was “concerned here with a duty to

perform a specific act (the arrest of lawbreakers by private

citizens or private security personnel), and the statutes cited

have nothing to say about that kind of act.” Babick, 333 Or

at 409.

The same lack of specificity prevents plaintiff from

pursuing her wrongful discharge claim based on the “public

duty” theory in this case. Examining the statutes that plain-

tiff cites as relevant—namely, ORS 431.110, ORS 431.142,

ORS 431.155, and ORS 433.010—we acknowledge that those

provisions evince a general public policy in favor of healthy

communities and preventing communicable diseases.

However, ORS 431.110, ORS 431.155, and ORS 431.142 con-

cern, respectively, the general powers of the Oregon Health

Authority (OHA), the enforcement powers of the OHA, and

the functions of communicable disease control programs.

None of those statutes impose any duty on plaintiff to pre-

vent the spread of communicable diseases. Lastly, although

ORS 433.010(1) provides that “[n]o person shall willfully

cause the spread of any communicable disease within this

state[,]” plaintiff did not allege any such willful action here.

6

Although plaintiff also pleaded this as a “job-related rights” case in her

amended complaint, on appeal, plaintiff appears to rely solely on the “public

duty” theory.

308 Vergara v. Patel

III. CONCLUSION

In sum, as to plaintiff’s statutory claims, we con-

clude that Patel should reasonably have understood from

the original complaint that plaintiff intended to sue the

business entities Jay Maharaj, Inc., and Alko 100 LLC.

Therefore, the amended complaint merely corrected a mis-

nomer and did not change the parties, and it relates back

to the timely filing of the original complaint under the first

sentence of ORCP 23 C. Furthermore, we conclude that the

existence of adequate statutory remedies precludes plain-

tiff’s wrongful discharge claim.

Portion of judgment dismissing plaintiff’s statutory

claims reversed and remanded; otherwise affirmed.