Rohrer v. Oswego Cove, LLC

489

Submitted August 31, 2020; reversed and remanded as to common-law claim for

wrongful termination, otherwise affirmed March 3, 2021

Penny ROHRER,

an individual,

Plaintiff-Appellant,

v.

OSWEGO COVE, LLC,

dba Oswego Cove Apartments,

an Oregon limited liability company,

Defendant-Respondent.

Clackamas County Circuit Court

19CV16761; A171515

482 P3d 811

Plaintiff appeals a judgment dismissing her common-law claim for wrong-

ful termination, which was premised on an allegation that she was retaliated

against by defendant for seeking legal advice. The trial court dismissed the claim

after concluding that the claim was “abrogated by an existing, adequate statu-

tory remedy.” On appeal, plaintiff assigns error to that ruling, among others.

Held: The trial court erred. Common-law wrongful termination is a claim that

remains available, in appropriate circumstances, under Oregon law. Further, in

this case, plaintiff’s common-law wrongful termination claim was not precluded

by the existence of an adequate statutory remedy.

Reversed and remanded as to common-law claim for wrongful termination;

otherwise affirmed.

Donald B. Bowerman, Judge.

Daniel Kalish and HKM Employment Attorneys LLP

filed the briefs for appellant.

Chris M. Morgan, Edwin Harnden, and Barran Liebman

LLP, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge,

and Aoyagi, Judge.

TOOKEY, J.

Reversed and remanded as to common-law claim for

wrongful termination; otherwise affirmed.

490 Rohrer v. Oswego Cove, LLC

TOOKEY, J.

Plaintiff appeals a general judgment of dismissal

with prejudice dismissing, as relevant here, a common-law

claim for “wrongful termination.” In the trial court, defen-

dant moved to dismiss that claim under ORCP 21 A(8), and

the trial court granted the motion, concluding that “such a

claim is abrogated by an existing, adequate statutory rem-

edy.” On appeal, plaintiff assigns error to that ruling.

For the reasons that follow, we agree with plain-

tiff that the trial court erred. Accordingly, we reverse and

remand the trial court’s dismissal of plaintiff’s wrongful

termination claim and otherwise affirm.1

“We review a trial court’s ruling dismissing a com-

plaint under ORCP 21 A(8) for failure to state a claim for

legal error, taking as true all well-pleaded factual allega-

tions, and giving plaintiff the benefit of all reasonable infer-

ences that can be drawn from those facts.” Nationwide Ins.

Co. of America v. TriMet, 264 Or App 714, 715, 333 P3d 1174

(2014) (internal quotation marks omitted).

I. FACTS AND PROCEDURAL HISTORY

A. Facts as Alleged in Plaintiff’s Complaint

Defendant is a company that rents apartment units

to tenants. Plaintiff was employed by defendant as an assis-

tant manager of defendant’s leasing office.

During the course of plaintiff’s employment with

defendant, an individual began repeatedly calling defen-

dant’s leasing office and “harassing” plaintiff. The individ-

ual would ask plaintiff inappropriate questions and, during

one of the calls, “made masturbation sounds.” Plaintiff noti-

fied defendant, and defendant “laughed off” the situation.

Plaintiff complained to her supervisor that defendant’s inac-

tion was compromising her safety and stated her view that

1

On appeal, relying in part on Daniel v. Or Health & Scis Univ, 262 F Supp

3d 1079 (D Or 2017), plaintiff also assigns error to the trial court’s denial of

her motion to amend her complaint to add a claim under ORS 659A.290, which,

among other things, makes it an “unlawful employment practice” to “[d]ischarge

* * * or retaliate against an individual * * * because the individual is a victim of

* * * harassment, sexual assault or stalking.” We reject that assignment of error

without discussion.

Cite as 309 Or App 489 (2021) 491

it was illegal for defendant to allow defendant’s employees

to be subjected to calls of the nature plaintiff was receiving.

Plaintiff also “reached out to an attorney to procure legal

advice on the stalking calls.” Defendant was “upset” that

plaintiff sought legal advice from an attorney and, shortly

thereafter, plaintiff’s employment with defendant ended.2

B. The Instant Litigation

After the foregoing events, plaintiff filed a com-

plaint alleging, among other causes of action, a common-law

claim for wrongful termination. That cause of action

alleged, in pertinent part, that defendant “retaliated and

discriminated against [plaintiff], thereby interfering with

an important societal obligation and/or terminated [plain-

tiff] while she pursued important rights related to her role

as an employee, including but not limited to seeking legal

counsel.”

Defendant filed a motion to dismiss plaintiff’s com-

plaint. With regard to plaintiff’s common-law wrongful termi-

nation claim, relying on Walsh v. Consolidated Freightways,

278 Or 347, 563 P2d 1205 (1977), and Deatherage v. Johnson,

230 Or App 422, 215 P3d 125 (2009)—both of which this

opinion addresses in detail below—defendant argued that

“Oregon statute * * * provides the only avenue for relief”

where a plaintiff alleges that a defendant “terminated her

in retaliation for what she believed was behavior intended to

protect a public interest or that formed an important socie-

tal obligation.”

Defendant also argued that plaintiff’s “wrongful

discharge claim under Oregon common law is not available

because ORS [chapter] 659A provides adequate remedies

to Plaintiff for any alleged retaliation for engaging in pro-

tected employment activity,” noting that, in its view, plain-

tiff’s claim would “clearly fall under the statutory scheme

of ORS [chapter] 659A—specifically a claim for retaliation

under ORS 659A.199.”

In her response to defendant’s motion to dismiss,

plaintiff contended that she “has established sufficient facts

2

Plaintiff’s complaint does not disclose the specific circumstances by which

her employment with defendant ended.

492 Rohrer v. Oswego Cove, LLC

to bring a wrongful termination claim” because defendant

“violated public policy when it terminated [plaintiff] shortly

after she sought legal advice regarding the ongoing issues

she was experiencing at Defendant’s workplace.” Plaintiff

argued that “there is no adequate statutory remedy in

Oregon protecting an employee from termination for seek-

ing legal advice.”

The trial court granted defendant’s motion to dis-

miss. About plaintiff’s common-law wrongful termination

claim, the trial court concluded that “such a claim is abro-

gated by an existing, adequate statutory remedy,” and,

therefore, “pursuant to ORCP 21(A)(8), plaintiff is unable to

state ultimate facts sufficient to constitute a claim for com-

mon law wrongful discharge.”3

II. ARGUMENTS ON APPEAL

On appeal, plaintiff acknowledges that “[a] common

law wrongful termination claim will not exist if an avail-

able and adequate statutory remedy already exists.” Never-

theless, plaintiff argues that the trial court erred in dis-

missing her common-law wrongful termination claim. In

plaintiff’s view, the trial court ruled “that ORS 659A.199

abrogated and superseded that claim,” but that to “have a

viable claim under ORS 659A.199,” she would have had to

have “reported” information that she “in good faith” believed

was “a violation of a state or federal law, rule, or regulation.”

Plaintiff argues that her common-law wrongful termination

does not make such an allegation, but instead, alleges that

she was retaliated against because she “reached out to an

attorney to procure legal advice on the stalking calls.”

Defendant, for its part, disagrees with plain-

tiff that the trial court dismissed plaintiff’s claim on the

specific ground that ORS 659A.199 abrogated and super-

seded that claim. In defendant’s view, the trial court “more

broadly ruled” that plaintiff’s common-law wrongful termi-

nation claim is abrogated by an existing, adequate statutory

remedy.

3

In her complaint and on appeal, plaintiff presents her claim as a claim

for “wrongful termination.” The trial court’s ruling referred to it as a claim for

“wrongful discharge.” For the purposes of this appeal, we understand the terms

“wrongful discharge” and “wrongful termination” to be synonymous.

Cite as 309 Or App 489 (2021) 493

Defendant does not point to any specific statute that

it contends provides plaintiff an adequate statutory remedy.

Instead, defendant maintains that “Plaintiff’s common law

wrongful discharge claim is a garden variety retaliation

claim, in which Plaintiff alleges that she was terminated

in retaliation for seeking legal counsel.” Defendant notes

that, in Deatherage, we stated 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.’ ” (Quoting

Deatherage, 230 Or App at 426.) Defendant argues that “the

Oregon Supreme Court has not repudiated or modified its

holding in Walsh,” and, accordingly, “in following this court’s

holding in Deatherage, Plaintiff’s claim alleging retaliatory

termination must be brought, if at all, under either a federal

or a state statute.” 4

III. ANALYSIS

The “common-law tort of wrongful discharge is a

public-policy exception to Oregon’s general rule of ‘at-will’

employment.” Vergara v. Patel, 305 Or App 288, 302, 471 P3d

141 (2020). It is not “a tort of general application; rather, it is

an interstitial tort, designed to fill a gap where a discharge

in violation of public policy would otherwise not be ade-

quately remedied.” Id. at 305-06 (internal quotation marks

omitted). Thus, “the existence of functionally adequate stat-

utory remedies precludes [a] plaintiff from pursuing th[e]

common-law remedy” of a common-law wrongful discharge

claim. Id. at 290.

The tort of wrongful discharge was first recognized

by the Oregon Supreme Court in Nees v. Hocks, 272 Or 210,

536 P2d 512 (1975). In Nees, the court addressed whether the

plaintiff was entitled to recover on a theory of common-law

wrongful discharge when she was fired for informing the

clerk that she would like to serve on a jury and serving on

4

Plaintiff’s common-law wrongful termination claim also included an alle-

gation that defendant retaliated against her for “requesting an accommodation

as a crime victim of stalking.” In pressing their arguments on appeal concerning

the viability of plaintiff’s common-law wrongful termination claim, both plaintiff

and defendant analyze plaintiff’s common-law wrongful termination claim as

one alleging retaliation for seeking legal counsel. Consequently, in deciding this

appeal, our analysis is limited to that aspect of her claim.

494 Rohrer v. Oswego Cove, LLC

a jury. 272 Or at 218-21. The court, in affirming a jury’s

award of compensatory damages, recognized the tort of

wrongful discharge under Oregon common law, reasoning

that “there can be circumstances in which an employer dis-

charges an employee for such a socially undesirable motive

that the employer must respond in damages for any injury

done.” Id. at 218.

Two years later, in Walsh, the Oregon Supreme

Court considered whether the availability of a statutory

remedy should preclude a plaintiff from recovering under

the theory of common-law wrongful discharge. There, an

employee was discharged because he complained about a

safety violation. 278 Or at 350-51. The court noted that,

“unlike the situation in Nees, an employee who is discharged

because he complained of a safety violation is provided a

remedy under existing law for his wrongful discharge.”

Id. at 351. The court explained, in part, that, under “29 USC

§ 660(c), an employee who feels he has been discharged for

reporting a safety or health violation can file a complaint

with the Department of Labor within 30 days of his dis-

charge.” Id. at 352. That remedy, the court determined, was

“adequate to protect both the interests of society in main-

taining safe working conditions and the interests of employ-

ees who are discharged for complaining about safety and

health problems.” Id.

Subsequently, in Deatherage, on which defendant’s

argument in response to plaintiff’s first assignment of error

is substantially premised, we affirmed a trial court deci-

sion dismissing a common-law wrongful discharge claim in

which the plaintiff alleged that she was fired in retaliation

after she had contacted the Oregon Occupational Safety and

Health Division to report health and safety violations at her

employer’s place of business. 230 Or App at 424. The trial

court in Deatherage had granted the “defendant’s motion to

dismiss on the ground that the common-law tort of wrongful

termination is not available to a plaintiff who has an ade-

quate statutory remedy and that, in Walsh v. Consolidated

Freightways, 278 Or 347, 563 P2d 1205 (1977), the Supreme

Court held that such a remedy exists” with regard to wrongful

termination claims such as the plaintiff’s. Deatherage, 230

Or App at 424.

Cite as 309 Or App 489 (2021) 495

On appeal in Deatherage, both parties agreed that

“strict adherence to Walsh would require affirming the trial

court’s dismissal,” but the plaintiff argued that, “in the 32

years since Walsh, its underlying logic has been seriously

undercut.” Id. at 425. We rejected the plaintiff’s argument,

observing that “this court * * * neither has rejected, nor can

reject, an Oregon Supreme Court case,” such as Walsh. Id.

In that context, we stated 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. But

we made that comment in the context of noting that we were

not holding or suggesting what remedies were “available”

under the statute at issue in Deatherage. Id.

As noted above, defendant argues that “the Oregon

Supreme Court has not repudiated or modified its holding in

Walsh,” and, accordingly, “in following this court’s holding

in Deatherage, Plaintiff’s claim alleging retaliatory termi-

nation must be brought, if at all, under either a federal or a

state statute.” Therefore, according to defendant, plaintiff’s

common-law claim fails.

We agree with defendant that the Supreme Court

has not repudiated its holding in Walsh, but our opinion in

Deatherage cannot be read the way that defendant contends.

In context, we understand our statement in Deatherage—“a

plaintiff alleging retaliatory termination must bring that

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

to refer to retaliation claims such as those in Walsh and

Deatherage, where existing statutory remedies are ade-

quate. That is, the statement from Deatherage on which

defendant relies is not a general conclusion that common-law

wrongful discharge claims are not recognized under Oregon

law.

In fact, even after Deatherage, we have contin-

ued to recognize a common-law cause of action for wrong-

ful discharge when “an employer discharges an employee

for such a socially undesirable motive that the employer

must respond in damages for any injury done,” Nees, 272

Or at 218, but no statute provides an adequate statutory

496 Rohrer v. Oswego Cove, LLC

remedy.5 See, e.g., De Bay v. Wild Oats Market, Inc., 244 Or

App 443, 449-52, 260 P3d 700 (2011) (reversing dismissal

of common-law wrongful discharge claim alleging employer

retaliated against employee for making complaints concern-

ing “unlawful activity under the securities laws,” because

federal statute allowing a wrongful discharge claim on that

basis was not “adequate under Oregon law to provide a com-

plete remedy,” and noting that Oregon law does not allow

common-law wrongful discharge claims premised on retali-

ation for bringing a “wage claim,” because ORS 652.355 pro-

vides an “adequate remedy” for such retaliation); Kemp v.

Masterbrand Cabinets, Inc., 257 Or App 530, 538-39, 307 P3d

491 (2013) (common-law wrongful discharge claim available

to plaintiff where, among other points, “at the time of the

incident, she did not have adequate state statutory reme-

dies” for the allegedly wrongful discharge); see also Hall v.

State of Oregon, 274 Or App 445, 455, 366 P3d 345 (2015)

(ruling that the trial court erred in dismissing the plain-

tiff’s common-law wrongful discharge claim); McManus v.

Auchincloss, 271 Or App 765, 780, 353 P3d 17, rev den, 358 Or

145 (2015) (ruling that the trial court erred when it granted

summary judgment in defendant’s favor with respect to the

plaintiff’s common-law wrongful discharge claim).

Nor do we understand ORS 659A.199—which defen-

dant pointed to in the trial court and plaintiff contends

was the basis for the trial court’s ruling—to provide a

5

“Our courts have recognized two bases for a wrongful discharge claim:

(1) when the discharge is for exercising a job-related right that reflects an import-

ant public policy and (2) when the discharge is for fulfilling some important pub-

lic duty.” Vergara, 305 Or App at 307 (internal quotation marks and brackets

omitted). See also Love v. Polk County Fire District, 209 Or App 474, 486, 149 P3d

199 (2006) (noting the “public duty” supporting a wrongful discharge claim “may

be found through cases, statutes, rules, or constitutional provisions that either

(1) specifically encourage or require a particular action or (2) otherwise demon-

strate that such action enjoys high social value” (internal quotation marks and

brackets omitted)).

In her briefing, plaintiff posits that, “[a]t this point, this court does not need

to decide whether [retaliation for] consulting an attorney constitutes wrongful

termination” because that “was not addressed in the trial court,” that “argu-

ment was never made by [defendant],” and that “was not the basis of the trial

court’s decision.” We agree with plaintiff and express no opinion on whether, as

a general matter, an employer retaliating against an employee for the employee

consulting with an attorney is actionable under the common-law tort of wrongful

termination.

Cite as 309 Or App 489 (2021) 497

“functionally adequate statutory remed[y],” Vergara, 305 Or

App at 290, for the purportedly wrongful discharge alleged

by plaintiff in this case.

“Under ORS 659A.199, an employer acts unlawfully

when taking adverse action against an employee ‘for the rea-

son that the employee has in good faith reported informa-

tion that the employee believes is evidence of a violation of

a state or federal law, rule or regulation.’ ” Hall, 274 Or App

at 451 (quoting ORS 659A.199(1)).6 “That provision turns on

whether the employee has reported in good faith based on

what the employee believes is evidence of unlawful activity.”

Id. To prove a violation, a plaintiff must “establish a causal

link between [her] complaints about * * * the violation of a

law, rule, or regulation, on the one hand, and defendant’s

adverse employment actions, on the other.” Ossanna v. Nike,

Inc., 290 Or App 16, 27, 415 P3d 55 (2018), aff’d, 365 Or 196

(2019).

In this case, plaintiff’s complaint alleges that plain-

tiff “reached out to an attorney to procure legal advice

on the stalking calls,” defendant “was upset that [plain-

tiff] sought legal advice from an attorney,” and defendant

“retaliated and discriminated” against plaintiff for “seek-

ing legal counsel.” Thus, plaintiff’s common-law wrongful

termination claim is not premised on an allegation that

she “reported * * * evidence of unlawful activity,” Hall, 274

Or App at 451, and that it was that report of unlawful

activity—as opposed to her merely seeking legal counsel—

that was the cause of her termination. Accordingly, contrary

to defendant’s argument to the trial court, ORS 659A.199

does not provide plaintiff with an adequate statutory rem-

edy. Cf. Folz v. ODOT, 287 Or App 667, 673-75, 404 P3d 1036

(2017), rev den, 362 Or 482 (2018) (concluding “plaintiff could

not prevail on her whistleblowing claim[ ] under * * * ORS

659A.199 as a matter of law, and, therefore, the trial court

6

ORS 659A.199(1) provides:

“It is an unlawful employment practice for an employer to discharge,

demote, suspend or in any manner discriminate or retaliate against an

employee with regard to promotion, compensation or other terms, conditions

or privileges of employment for the reason that the employee has in good faith

reported information that the employee believes is evidence of a violation of a

state or federal law, rule or regulation.”

498 Rohrer v. Oswego Cove, LLC

did not err by dismissing [it] on summary judgment” where

“none of the actions for which plaintiff claims to have been

retaliated against qualify as * * * ‘reports’ of information

that plaintiff believed to be ‘evidence’ of a ‘violation’ of law”).

ORS 659A.199 does not provide plaintiff a remedy for her

claim that she was retaliated against for seeking legal coun-

sel. Nor has defendant identified any other statutory remedy

for such a claim. If a remedy exists, see 309 Or App at 496

n 5, it appears to exist only in a common-law claim.

IV. CONCLUSION

In sum, we conclude that, contrary to defendant’s

argument, common-law wrongful termination is a claim

that remains available, in appropriate circumstances, under

Oregon law. We also conclude that plaintiff’s common-law

wrongful termination claim is not precluded by the exis-

tence of an adequate statutory remedy. Accordingly, we

reverse and remand the trial court’s dismissal of plaintiff’s

common-law wrongful termination claim, which was based

solely on the existence of an adequate statutory remedy, and

otherwise affirm.

Reversed and remanded as to common-law claim

for wrongful termination; otherwise affirmed.