Walker v. Oregon Travel Information Council

761

Argued and submitted September 16, 2020; decision of Court of Appeals

reversed, and case remanded to Court of Appeals for further proceedings

April 8, 2021

Kyle K. WALKER,

Petitioner on Review,

v.

STATE OF OREGON,

by and through the Semi-Independent State Agency,

the Oregon Travel Information Council,

branded and doing business as

the Oregon Travel Experience,

Respondent on Review.

(CC 15CV02202) (CA A163420) (SC S067211)

484 P3d 1035

Plaintiff brought a statutory whistleblowing claim under ORS 659A.203(1)

and a common-law wrongful discharge claim against her employer, a semi-

independent state agency, alleging that the employer had unlawfully fired her for

whistleblowing. A jury found in favor of plaintiff on her wrongful discharge claim

and awarded damages, but the trial court, sitting in equity, dismissed plaintiff’s

statutory whistleblowing claim. The Court of Appeals affirmed the dismissal of

the statutory claim and reversed the judgment for plaintiff on the wrongful dis-

charge claim. The Court of Appeals concluded that plaintiff had not asserted an

important public duty under the tort, because plaintiff did not have a reasonable

belief that her employer had violated the law. Held: (1) To successfully assert a

common-law claim for wrongful discharge, the employee must identify an import-

ant public policy, as demonstrated by sources of law, that the employee’s claimed

protected activity furthers, which is a question of law for a court; and (2) in the

context of statutory whistleblowing claims under ORS 659A.203(1), whether a

public employee had a reasonable belief that her employer had violated a law is

usually a factual determination reserved for the trier of fact.

The decision of the Court of Appeals is reversed and remanded for further

proceedings.

En Banc

On review from the Court of Appeals.*

Shayna M. Rogers, Garrett Hemann Robertson, PC,

Salem, argued the cause for petitioner on review. Luke W.

______________

* Appeal from Marion County Circuit Court, Mary Mertens James, Judge.

299 Or App 432, 450 P3d 19 (2019).

762 Walker v. Oregon Travel Information Council

Reese filed the briefs. Also on the briefs was Elizabeth L.

Polay.

Denise G. Fjordbeck, 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.

NAKAMOTO, J.

The decision of the Court of Appeals is reversed, and

the case is remanded to the Court of Appeals for further

proceedings.

Cite as 367 Or 761 (2021) 763

NAKAMOTO, J.

An employee who is fired from an at-will position

may, in some cases, assert a common-law claim of wrong-

ful discharge. In this case, plaintiff persuaded a jury that

her public employer had wrongfully discharged her for

blowing the whistle on what she reasonably believed to be

her employer’s violations of law. The trial court had denied

her employer’s motions for a directed verdict, and the court

entered a judgment that awarded her damages on that

claim. The Court of Appeals reversed, holding that, not-

withstanding the jury verdict in her favor, plaintiff’s action

had not served an important public policy. Walker v. Oregon

Travel Information Council, 299 Or App 432, 450 P3d 19

(2019).

We now reverse the Court of Appeals and remand

the case to that court for further proceedings. The Court

of Appeals incorrectly concluded that the threshold issue—

whether plaintiff had identified an important public policy

that permitted her to assert the tort of wrongful discharge—

depended on whether she had reasonably believed that her

employer had violated the law; instead, that threshold issue

properly turns on sources of law that support the asserted

public policy and whether those sources of law are tied to

the acts by plaintiff that led her employer to discharge her.

We further conclude that whether plaintiff had a reasonable

belief that her employer had violated the law—the disputed

element of whistleblowing on appeal—is a question of fact

for the factfinder and that the record contains evidence that

supports the jury’s finding.

I. BACKGROUND

Plaintiff Kyle Walker, the chief executive officer of a

semi-independent state agency, the Oregon Travel Experience,

was fired by the agency’s governing body, the Oregon Travel

Information Council. She was an at-will employee, meaning

that, generally, “in the absence of a contract or legislation

to the contrary,” the Council could discharge her “at any

time and for any cause.” Nees v. Hocks, 272 Or 210, 216, 536

P2d 512 (1975). Plaintiff filed an action against defendant

“the State of Oregon, by and through * * * the * * * Council,”

764 Walker v. Oregon Travel Information Council

and asserted two claims. One claim was for whistleblowing

as a public employee, a statutory claim governed by ORS

659A.203(1).1 The other was a common-law claim for wrong-

ful discharge, a tort that this court recognized in Nees as

protecting at-will employees who are discharged from

employment for engaging in protected conduct.

Defendant’s motions for a directed verdict on plain-

tiff’s wrongful discharge claim are at issue on review.

Accordingly, we review the evidence in the light most favor-

able to plaintiff, because the jury returned a verdict for her.

Green v. Uncle Don’s Mobile City, 279 Or 425, 427, 568 P2d

1375 (1977). We recite the facts consistently with that stan-

dard of review.

The Oregon Travel Experience (OTE) is a semi-

independent agency responsible for blue roadway informa-

tional signs, historical marker signs, and rest areas along

Oregon’s highways. The Council, OTE’s governing body, is

composed of 11 volunteer members. The Council has the

authority, according to its bylaws, to establish an Executive

Committee, whose responsibilities include appointing the

agency’s CEO2 and evaluating the CEO’s performance.

The CEO of OTE is responsible for the agency’s day-to-

day operations and serves “at the pleasure of the Council.”

ORS 377.835(7) (2013).3 The CEO is also in administrative

control of the Council and is authorized to hire and set the

1

The 2015 version of the public employee whistleblower statute applied to

plaintiff’s claim. In part, ORS 659A.203(1) (2015) provided that “it is an unlawful

employment practice for any public employer to”

“(b) Prohibit any employee from disclosing, or take or threaten to take

disciplinary action against an employee for the disclosure of any information

that the employee reasonably believes is evidence of:

“(A) A violation of any federal or state law, rule or regulation by the

state, agency or political subdivision.”

Unless otherwise stated, further references to ORS 659A.203 in this opinion are

to the 2015 version.

2

Although plaintiff’s statutory title was “director,” the parties referred to

plaintiff as the “CEO” within the agency and throughout the litigation.

3

The governing statute at the time, ORS 377.835(7) (2013), provided:

“The council shall be under the administrative control of a director who

is appointed by and who holds office at the pleasure of the council. The direc-

tor of the council may appoint all subordinate officers and employees of the

council and may prescribe their duties and fix their compensation. The direc-

tor of the council may delegate to any subordinate officer or employee any

Cite as 367 Or 761 (2021) 765

salary for OTE’s paid staff. Id. The CEO’s salary, however,

is under the exclusive authority of the Council according to

its bylaws.

Three months before the Council appointed plain-

tiff as CEO in December 2012, the Secretary of State con-

ducted an audit that determined that greater transpar-

ency and accountability was needed within the agency. An

audit performed the previous year also recommended that

the Council establish an employee classification and salary

structure for staff. Plaintiff was hired to bring the agency

into compliance with the Secretary of State’s audit and to

implement the audit’s recommendations. According to her

employment offer, the Council would not adjust plaintiff’s

salary during her first year as CEO.

Soon after plaintiff became CEO, conflict arose

between her and the Council. Friction stemmed from plain-

tiff’s attempt to fulfill the audit’s recommendation to cre-

ate a more objective salary structure for staff. The Council

was concerned that OTE’s management compensation was

too high and that it was “top-heavy.” Both plaintiff and

the Council understood that salary adjustments had to be

made from the “top-down”—meaning that plaintiff’s salary,

as CEO, would establish the benchmark for setting other

staff salaries—but the parties disagreed on how to model

a new salary structure. Plaintiff intended to rely on the

Department of Administrative Services (DAS) “Hay” system

salary range as a compensation model for OTE. However, as

a semi-independent agency, OTE is not required to follow

the DAS system salary range. Thus, the Council instructed

plaintiff not to rely on the DAS system salary range as a

compensation model and told her to develop a salary struc-

ture that complied with the Council’s stated objectives and

proposed budget instead.

Plaintiff disagreed with the Council’s instruction

and relied on the DAS system salary range as a model in

proposing a new salary structure. She concluded that it

was the best way to establish an objective salary scheme

administrative duty, function or power imposed upon the council by or pur-

suant to law.”

References to ORS 377.835(7) in this opinion are to the 2013 version.

766 Walker v. Oregon Travel Information Council

and to bring the agency’s salary structure into compliance

with the audit. She evaluated CEO compensation at other

semi-independent state agencies to determine an appro-

priate “benchmark” CEO salary and provided her salary

structure proposal to the Council in June 2013. The Council

was unhappy with plaintiff’s proposal. The Council believed

that plaintiff’s inclusion of an adjustment to her own sal-

ary, before the one-year mark of employment, was plain-

tiff’s demand for a raise and a failure to accept the Council’s

authority to set her compensation. Plaintiff’s view was that

her proposal was not a demand for a raise, but rather that

her salary was included in the report because it was used as

a benchmark to inform the Council on how the remaining

salaries would cascade down from her own as the highest.

In January 2014, plaintiff implemented the new

staff salary structure without giving prior notice to the

Council. Plaintiff had statutory authority under ORS

377.835(7) to implement the new salary structure without

first garnering Council approval. That statute authorized

the CEO to “fix the[ ] compensation” for staff. Despite her

statutory authority, plaintiff had earlier agreed to share

with the Council her changes to the initial salary proposal

so that the Council could ensure that the salary changes

conformed to the budget. The Council did not learn of the

new salary structure implementation until mid-February.

Once the Council learned about the new staff sal-

aries, the Council chair requested that plaintiff meet with

the Executive Committee on March 12, 2014, to discuss

plaintiff’s actions regarding the salary structure. Before

that meeting, plaintiff’s executive assistant, at plaintiff’s

direction, asked the Oregon Department of Justice whether

the meeting would be considered a public meeting and

would require notice under Oregon’s Public Meetings Law.

An attorney with the Department of Justice advised that

the meeting would need to be noticed, pursuant to ORS

192.630(1), as a meeting of the agency’s governing body.

Plaintiff’s executive assistant then asked the Council chair

whether the meeting should be noticed, and the Council

chair told her that the meeting did not need to be noticed.

Although plaintiff knew that it was her responsibility, as

CEO, to provide notice of public meetings—and that the

Cite as 367 Or 761 (2021) 767

March 2014 meeting would be held in violation of Oregon’s

public meetings law—she did not want to defy the chair’s

instruction because she knew that she served “at the plea-

sure of the [C]ouncil” and feared that she already was at

risk of being terminated at the meeting.

Plaintiff was not terminated at the March 2014

meeting; however, conflict regarding plaintiff’s and the

Council’s respective roles and authority persisted. In light of

the continued conflict, on April 8, 2014, plaintiff sent a mem-

orandum to Michael Jordan, the chief operations officer of

the State of Oregon and the head of DAS. As the state’s chief

operations officer, Jordan acted as the Governor’s manager

over Oregon’s executive branch. In the memorandum, plain-

tiff detailed 13 concerns that she had about the Council’s

actions, including the following:

“6. The Executive Committee is currently out of com-

pliance with current Council operating procedures, and

statute regarding roles and authorities.

“* * * * *

“11. The Chair and Executive Committee have vio-

lated public meeting law.

“12. The Executive Committee are [sic] attempting to

micromanage agency operations under the guise of ‘broad

direction’ without Council authority directing how the sal-

ary structure should be changed and how employees will

be rated on performance evaluations without regard to the

Classification and Salary study. They do not recognize the

authority of the CEO per statute regarding these matters.

“* * * * *

“Over the past three weeks this has escalated to a point

that intervention is needed to prevent the agency from

moving further into conflict, to reduce organizational risk

and to mitigate the potential for unnecessary public expo-

sure or employee litigation. * * *

“I am deeply saddened by the situation. As an elected

[sic] official and representative of the public trust, my

ethics and background in public governance prevent me

from being a party to or condoning to [sic] these actions.

I am unwilling to support the direction of the Executive

Committee without the involvement of the entire Council,

768 Walker v. Oregon Travel Information Council

their willingness to adhere to statute and public meeting

law, and operate in a transparent and accountable manner.”

The Council chair acknowledged that, after plain-

tiff sent her memorandum to Jordan, the Governor’s office

called the Council chair to alert her that plaintiff had

complained to Jordan. Conflict between plaintiff and the

Council continued through the spring and summer before

the Council ultimately terminated plaintiff’s employment in

October 2014. Thus, at trial, plaintiff had evidence that the

Council was aware of her complaint before her discharge.

Following her termination, plaintiff initiated this

action for common-law wrongful discharge and statutory

whistleblowing under ORS 659A.203(1)(b). Plaintiff alleged

that her memorandum to Jordan qualified as protected

whistleblowing. Plaintiff contended that she had fulfilled

an important public duty by reporting the Council’s illegal

conduct, namely, that the Council’s March 12, 2014, meeting

was held in violation of the public meetings law and that the

Council had interfered with plaintiff’s management of OTE

in violation of her statutory authority to set employee com-

pensation and administer OTE generally.

While the statutory whistleblowing claim was tried

to the court sitting in equity, based on the equitable nature

of the remedies that the 2015 version of the statute then

afforded, plaintiff’s wrongful discharge claim was tried

to a jury. The trial court denied defendant’s motions for a

directed verdict on the tort claim after plaintiff’s case-in-

chief and after the close of all the evidence.

After explaining that certain kinds of protected

whistleblowing may support a wrongful discharge claim,

the trial court instructed the jury at length as to what acts

do and do not constitute protected whistleblowing. The court

defined whistleblowing as “disclosing information that the

plaintiff reasonably believed was evidence that her employer

had engaged in a violation of a state or federal law, rule, or

regulation.” Among other things, the jury instructions spec-

ified eight different circumstances in which a plaintiff’s dis-

closures would not constitute whistleblowing. One of those

concerned the reasonableness of plaintiff’s belief about her

employer’s violations of law. The jury was instructed that

Cite as 367 Or 761 (2021) 769

if “[p]laintiff lacked an objectively reasonable belief (i.e., a

belief that a reasonable person in similar circumstance

would be expected to have) that the information that she

disclosed would reveal a violation of law,” then she did not

engage in whistleblowing. Additionally, the jury was sep-

arately instructed that “[p]laintiff and council members

disagreed about the scope of their respective roles and

responsibilities in running the agency” and that “[t]hose

disagreements are not whistleblowing.”

The jury found in plaintiff’s favor and awarded her

$1.2 million in damages. Specifically, the jury found that

(1) plaintiff had engaged in whistleblowing as the trial court

had narrowly defined it; (2) plaintiff’s act of whistleblowing

had been a substantial factor in the Council’s decision to

discharge her; and (3) plaintiff had suffered damages as a

result of her discharge. Despite the jury’s verdict, the trial

court determined that plaintiff had not proved her statutory

whistleblower claim, and it dismissed that claim.

Defendant filed a motion for judgment notwith-

standing the verdict on the wrongful discharge claim, argu-

ing that plaintiff’s reports did not constitute whistleblowing,

that plaintiff had failed to present evidence that a protected

disclosure was a substantial factor in her termination, and

that the wrongful discharge claim never should have been

submitted to the jury because an adequate statutory rem-

edy existed. The trial court denied the motion and entered a

judgment for plaintiff on the wrongful discharge claim.

Both parties appealed. Plaintiff assigned error to

the trial court’s dismissal of her statutory whistleblower

claim. Defendant cross-appealed, challenging the court’s

denial of its motions for directed verdict and motion for

judgment notwithstanding the verdict on the wrongful dis-

charge claim and the court’s submission of that claim to

the jury. Defendant asserted that wrongful discharge is

narrowly defined and that plaintiff’s report to Jordan that

defendant had violated the public meetings law did not

provide a basis for a wrongful discharge claim. Defendant

had two arguments: first, that plaintiff had created the vio-

lation, because it was her responsibility to provide public

notice of the March 2014 Council meeting, and second, that

770 Walker v. Oregon Travel Information Council

reporting the violation did not rise to the level of fulfilling

an important public duty, because plaintiff had no duty to

send the memorandum to Jordan and because Jordan had

no authority to address the alleged violations of law.

The Court of Appeals reversed the judgment in favor

of plaintiff on the wrongful discharge claim and affirmed

the dismissal of plaintiff’s statutory claim. Regarding the

wrongful discharge claim, the Court of Appeals noted that

an employee’s discharge from at-will employment may

be actionable when the employee is discharged for fulfill-

ing an important public duty. Walker, 299 Or App at 446.

The court also explained that, to determine what consti-

tutes an important public duty, “courts are to review stat-

utes and other sources of authority to determine whether

there is a ‘substantial public policy’ that would be thwarted

if the employer were allowed to discharge the employee

without liability.” Id. (internal citation omitted). The court

acknowledged that, under its case law, ORS 659A.203(1)

“is a statutory source of the important public duty to report

government wrongdoing that can support a common-law

wrongful-discharge claim.” Id. at 447. The court added, how-

ever, that not every report of employer wrongdoing rises to

the level of fulfilling an important public duty. Id. In the

court’s view, a plaintiff must have had an “objectively rea-

sonable belief” that she was reporting a violation of law for

the report to constitute both protected whistleblowing and

fulfillment of an important public duty, and the court held

that “[w]hether plaintiff had an objectively reasonable belief

is a question of law for the court.” Id.

Applying those principles to the facts of the case,

the Court of Appeals concluded that plaintiff did not have

an objectively reasonable belief that the Council had vio-

lated the law. The Court of Appeals reasoned that most of

plaintiff’s complaints in her memorandum to Jordan—with

the exception of the public meetings law violation and the

Council’s noncompliance with plaintiff’s statutory author-

ity as director—“described differences of opinion between

plaintiff and the Council concerning governance and ‘best

practices.’ ” Id. The Court of Appeals then examined whether

plaintiff had a reasonable belief that the Council violated

plaintiff’s statutory authority as CEO and violated the

Cite as 367 Or 761 (2021) 771

public meetings law. Id. at 448-49. In the court’s view, the

evidence did not support a reasonable belief on plaintiff’s

part that the Council had violated the law in either respect.

Id. at 449. Therefore, the court concluded, the trial court

had erred in denying defendant’s motions for a directed ver-

dict on plaintiff’s wrongful discharge claim. Id.

II. ANALYSIS

We granted plaintiff’s petition for review to address

(1) the Court of Appeals’ conclusion that plaintiff had failed

to establish that, by reporting the Council’s violations of

law, she had engaged in conduct covered by the wrongful

discharge tort and (2) that court’s determination that the

“objectively reasonable belief” element of whistleblowing is

a question of law for the court. Plaintiff argues that, when

the Court of Appeals considered whether she had engaged

in protected conduct for purposes of her wrongful discharge

claim, the court applied an incorrect “legal error” standard

of review to the “objectively reasonable belief” element of

whistleblowing and failed to view the evidence in the light

most favorable to her. Defendant responds that the Court of

Appeals correctly understood that the “objectively reason-

able belief” element of whistleblowing is a question of law for

the court and that, even if the facts are viewed in the light

most favorable to plaintiff, she failed to establish that she

had fulfilled an important public duty.

As the parties’ arguments and the opinion by the

Court of Appeals reflect, two legal issues are at play in this

case: first, whether the activity that plaintiff claims led to

her discharge permitted her to assert her wrongful dis-

charge claim and, second, whether she proved the element of

whistleblowing that requires the plaintiff to show that she

had a reasonable belief that her employer had violated the

law. As we discuss below, those legal issues, albeit related,

are functionally different from one another and analytically

distinct in this case. Ultimately, we reverse the Court of

Appeals because (1) plaintiff was entitled to rely on whistle-

blowing under ORS 659A.203(1)(b) to establish protected

activity under the tort and (2) the “objectively reasonable

belief” element of whistleblowing at trial is a question of

772 Walker v. Oregon Travel Information Council

fact, not a question of law, which makes all the difference in

the standard of review that applies.

A. Wrongful Discharge Claim Based on Whistleblowing

We first address whether plaintiff could assert a

tortious wrongful discharge claim based on her claimed

protected activity, namely, blowing the whistle on conduct

by her employer that she believed was in violation of Oregon

law. To resolve that issue, and to clarify the tort for the bar

and bench, we embark on a review of the relatively small

number of leading cases in which the court’s decision cen-

tered on the underpinnings of the tort.

Almost all states recognize a cause of action for dis-

charging an employee, including an at-will employee, in vio-

lation of public policy, with the vast majority of those states

permitting the employee to bring a tort claim for wrongful

discharge. Restatement (Third) of Employment Law § 5.01

comment a and Reporters’ Notes (2014). In Nees, this court

first recognized that “there can be circumstances in which

an employer discharges an employee for such a socially unde-

sirable motive that the employer must respond in damages

for any injury done.” 272 Or at 218. The employer discharged

the plaintiff because she had performed jury service. In

affirming the employer’s liability in tort, this court exam-

ined sources of public policy favoring jury service, including

the Oregon Constitution, statutes, and decisional law, and

concluded that, if “an employer were permitted with impu-

nity to discharge an employee for fulfilling her obligation

of jury duty, the jury system would be adversely affected.”

Id. at 219. In contrast, the following year, the court decided

that the plaintiff in Campbell v. Ford Industries, Inc., 274 Or

243, 252, 546 P2d 141 (1976), who was discharged for seeking

to inspect corporate records in his capacity as a shareholder,

had failed to state a claim for wrongful discharge. The court

observed that the primary basis for the right to examine

corporate records “is not one of public policy, but the private

and proprietary interest of stockholders, as owners of the

corporation,” and that the plaintiff in Nees was discharged

for conduct “related much more directly to her rights as

an employee.” Id. at 249-51. From its beginning, then, the

wrongful discharge tort developed with an emphasis on the

Cite as 367 Or 761 (2021) 773

important public policy underlying the plaintiff’s activity

that the tort fortifies.

Thereafter, in a series of three cases, the court

turned to deciding the availability of the tort when the

plaintiff has alternative statutory remedies. First, in Walsh

v. Consolidated Freightways, 278 Or 347, 352-53, 563 P2d

1205 (1977), the court held that the plaintiff could not assert

a wrongful discharge claim when a federal statute provided

the plaintiff with full remedies for objecting to unsafe work-

ing conditions, his claimed protected activity. In Brown v.

Transcon Lines, 284 Or 597, 588 P2d 1087 (1978), the court

recognized that an employer wrongfully discharges an

employee for filing a workers’ compensation claim, id. at

604, and then analyzed whether a state statute that pro-

vided some remedies precluded the plaintiff from pursuing

a wrongful discharge claim. Ultimately, the court held that

the statutory remedies then available were inadequate and

that the legislature had not intended to abolish or negate

the tort claim. Id. at 611-12. And in Holien v. Sears, Roebuck

and Co., 298 Or 76, 689 P2d 1292 (1984), this court similarly

held that, through the statutes making sex discrimination

an unlawful employment practice, the legislature had not

intended to eliminate a common law remedy and that the

remedies available to the plaintiff at the time under state

and federal antidiscrimination statutes did not provide the

plaintiff with necessary make-whole relief. Id. at 96-97.

That same year, in Delaney v. Taco Time Int’l, 297

Or 10, 681 P2d 114 (1984), this court returned to the ques-

tion whether the employer’s decision to discharge the plain-

tiff for engaging in claimed protected activity amounted to

such a “socially undesirable motive” that the employer must

be held liable in tort for damages. Delaney involved the

employer’s termination of the manager of one its restaurants

after he refused to sign a report that contained false deroga-

tory statements about a Black employee whom the manager

had fired to make room for a white employee, at his district

manager’s suggestion. 297 Or at 12-13. The court held that

the plaintiff proved the tort because of his discharge on the

basis that he was required, but refused, to sign a false and

potentially defamatory statement. Id. at 14.

774 Walker v. Oregon Travel Information Council

To explain its holding, the court described its

wrongful discharge cases to that point as falling into “three

general categories”: (1) a case like Nees, which the court

described as involving a plaintiff who “was discharged for

fulfilling a societal obligation”; (2) cases in which the plain-

tiff pursued a private statutory right, like Campbell and

Brown, with the plaintiff in Brown establishing a wrongful

discharge claim because the right pursued “related directly

to the plaintiff’s role as an employee” and the statute “was

legislative recognition of an important public policy”; and

(3) cases like Walsh, “where an adequate existing remedy

protects the interests of society so that an additional rem-

edy of wrongful discharge will not be accorded.” Delaney,

297 Or at 15-16. While the court in Delaney likened the

plaintiff’s protected activity to that of the plaintiff in Nees,

that is, fulfilling a societal obligation, id. at 17, the court did

not suggest that it was describing a limited set of protected

activities on which an employee could rely when seeking to

hold an employer liable for wrongful discharge based on the

employer’s “socially undesirable motive.” See also Patton v.

J. C. Penney Co., 301 Or 117, 120-22, 719 P2d 854 (1986), over-

ruled in part on other grounds by McGanty v. Staudenraus,

321 Or 532, 549, 901 P2d 841 (1995) (affirming dismissal of

a wrongful discharge claim after reviewing precedent and

observing that the plaintiff did not allege that his personal

relationship with another employee, which triggered his dis-

charge, was in some way protected by statute or involved an

interest of public importance).

And in neither of the court’s two most recent cases

since Delaney in which it has closely examined wrongful

discharge claims has the court abandoned the focus on

evaluating—through review of sources of law—whether an

important public policy at the core of the employee’s claimed

protected activity would be frustrated by permitting the

employer to discharge the employee with impunity. In the

first, Babick v. Oregon Arena Corp., 333 Or 401, 40 P3d 1059

(2002), the trial court had dismissed the complaint because

the plaintiffs, private security employees at a concert arena

who had been fired for arresting concert patrons who were

using illegal substances, had failed to state a claim for

relief. On review, this court referred to two “[e]xamples” of

Cite as 367 Or 761 (2021) 775

circumstances in which an employer’s discharge of an at-will

employee could be wrongful and give rise to tort liability:

“(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 important public duty.” Id. at

407. The court proceeded to analyze whether the plaintiffs’

alleged protected activity, carrying out a duty to make citi-

zen arrests of lawbreakers, was supported by an important

public policy by reviewing statutes that the plaintiffs offered

as supporting sources of law. The court concluded that the

statutes, such as those governing training and licensing for

private security personnel and generally permitting citizen

arrests, failed to support a “substantial public policy” that

required “the kinds of acts that allegedly triggered plain-

tiffs’ discharge.” Id. at 410.

And in this court’s most recent decision on the

wrongful discharge tort, Lamson v. Crater Lake Motors, Inc.,

346 Or 628, 216 P3d 852 (2009), the court again focused on

the sources of law expressing the substantial public policy

on which the employee relies and the relationship between

the employer’s discharge of the employee and frustration

of that policy. In that case, the plaintiff contended that his

employer discharged him for his internal complaint to man-

agement about the use of an outside sales firm, which he

thought employed unlawful sales practices, and for refus-

ing to attend the sales event with that firm, even as an

observer. Id. at 633. The court accepted the plaintiff’s theory

that Oregon laws reflected an important public policy that

prohibits and seeks to prevent deceptive sales practices.

Id. at 638. But the court then closely examined the plain-

tiff’s factual theories about why he was discharged and the

relationship between those theories and the public policy to

prohibit and prevent deceptive sales practices. Id. at 639-40.

To explain why the plaintiff’s internal protest related to

those types of practices had not “served a public duty or

interest,” id. at 639, this court observed that the plaintiff

had not been directed to engage in deceptive practices him-

self and had not taken the kind of action to stop the prac-

tices that the law recognized, id. at 640. By contrast, the

court noted, “employees may be protected” when reporting

an employer’s wrongdoing “by means of civil or criminal

776 Walker v. Oregon Travel Information Council

channels recognized by law,” such as the statute prohibit-

ing employers from discriminating against employees for

reporting criminal activity, ORS 659A.203(1). Id. at 640.

In the instant case, plaintiff asserted a wrongful

discharge claim based on allegations that the Council had

discharged her for whistleblowing. She also contended that

whistleblowing is a protected activity under the tort, as evi-

denced by the legislature’s enactment of ORS 659A.203(1)

to protect government employees who disclose governmental

violations of law. On review, the parties present the issue

whether whistleblowing by a public employee, that is, report-

ing governmental violations of law as described in that stat-

ute, gives rise to a tort claim for wrongful discharge if the

public employer fires the employee because of that activ-

ity. That is an issue of first impression for this court. And,

while plaintiff assumes that the issue must be decided by

the court as a question of law, defendant requests that this

court expressly hold that the issue is a question of law.

As an initial matter, we hold that whether the

employee has identified an important public policy that lies

at the core of the employee’s claimed protected activity and

that would be frustrated by permitting the employer to dis-

charge the employee without consequence is a legal issue

decided by a court. In Babick, in which the plaintiffs con-

tended that they had performed a public duty by making

citizen arrests, this court explained that “it is necessary to

‘find’ a public duty, not create one, using ‘constitutional and

statutory provisions, or the case law of this or other jurisdic-

tions.’ ” 333 Or at 409 (quoting Babick v. Oregon Arena Corp.,

160 Or App 140, 144, 980 P2d 1147 (1999), aff’d in part, rev’d

in part, 333 Or 401, 40 P3d 1059 (2002)). Calling as it does

for an evaluation of sources of law to discern whether the

plaintiff’s discharge from employment implicates an import-

ant public policy, that test strongly implies that courts must

decide the matter as a legal question. Earlier cases from this

court confirm that conclusion. See, e.g., Nees, 272 Or at 219

(examining Oregon constitutional provisions and statutes

and announcing that “actions by the people, the legislature,

and the courts clearly indicate that the jury system and jury

duty are regarded as high on the scale of American insti-

tutions and citizen obligations”); accord Delaney, 297 Or at

Cite as 367 Or 761 (2021) 777

17 (concluding that, considering the common law and provi-

sions of the Oregon Constitution, “a member of society has

an obligation not to defame others”).

In this case, plaintiff has identified ORS 659A.203(1)

as a statutory source of law to support her contention that

Oregon has an important public policy that protects a gov-

ernment employee who blows the whistle on her employer

and that she should be able to recover economic and non-

economic damages from defendant through a common-law

wrongful discharge claim. In turn, defendant asserts vari-

ous arguments related to whether plaintiff proved the ele-

ments of whistleblowing, but defendant does not claim that

plaintiff failed to identify an important public policy that is

supported by sources of law. For example, defendant asserts

that plaintiff misdirected her report of the Council’s viola-

tions to Jordan, who purportedly had no authority to take

action as the head of DAS, and that plaintiff could not have

had a reasonable belief that the Council had violated any

law, because the circumstances merely involved an ongoing

dispute concerning the scope of plaintiff’s authority rather

than the Council’s violations of laws. Yet the proper focus of

the legal question at hand is not whether plaintiff proved

whistleblowing. Rather, the question is whether plaintiff

identified an important public policy animating her activ-

ity that would be thwarted by permitting defendant to dis-

charge her without potential liability in tort.

As we affirmed in Babick, that determination rests

first on sources of law evidencing the asserted public policy.

The court also cautioned in Lamson that “the sources of law

that express the asserted ‘public policy’ must in some sense

speak directly” to the acts taken by the plaintiff that led to

the discharge from employment. 346 Or at 638 (emphasis

in original). Applying that analytical framework, we agree

with plaintiff that she relied on an important public policy

that supports a wrongful discharge claim.

Under ORS 659A.203(1), a public employer may not

“(b) Prohibit any employee from disclosing, or take or

threaten to take disciplinary action against an employee

for the disclosure of any information that the employee rea-

sonably believes is evidence of:

778 Walker v. Oregon Travel Information Council

“(A) A violation of any federal or state law, rule or reg-

ulation by the state, agency or political subdivision.”

The statute thus explicitly protects the employment of pub-

lic employees who report an employer’s “violation of any * * *

law.” Id. The legislature’s enactment of such a broad pro-

tective statute for public employees demonstrates the exis-

tence of a significant public policy aimed at protecting pub-

lic employees who come forward with reports of wrongdoing

by their government employers, and the statute “speak[s]

directly” to the protected nature of an employee’s report of

her employer’s wrongdoing.

By contrast, our decision in Babick is instructive

in describing an instance in which sources of law failed to

speak directly to the employee’s allegedly protected acts. In

the decision that this court overturned in Babick, the Court

of Appeals had relied on various statutes, which related to

general public safety and authorized citizen arrests, to con-

clude that those statutes established an important public

policy favoring a safe community and law enforcement by

citizens when police officers are not present. Babick, 160 Or

App at 144-46. In reversing the Court of Appeals, this court

observed that the statutes were “far too general” to support

a wrongful discharge claim for fulfilling an important pub-

lic duty. Babick, 333 Or at 409. But the same critique can-

not be made regarding the statute on which plaintiff relies

here. An employee who reports a public employer’s violations

of law enjoys protection under ORS 659A.203(1) from dis-

charge or other disciplinary action. Thus, for purposes of

the analysis of plaintiff’s wrongful discharge claim, we hold

that Oregon has an important public policy protecting a gov-

ernment employee who blows the whistle on her employer.

We note, however, that common-law wrongful dis-

charge is an interstitial tort: The tort may only be invoked

when another claim does not provide a plaintiff with an

adequate remedy. Walsh, 278 Or at 352-53 (rejecting wrong-

ful discharge claim because existing remedies under fed-

eral law were “adequate to protect both the interests of

society * * * and the interests of employees”); Delaney, 297

Or at 16 (recognizing that, in some cases, employees could

not recover in tort because “an adequate existing remedy

Cite as 367 Or 761 (2021) 779

protects the interests of society so that an additional remedy

of wrongful discharge will not be accorded”). As the Court of

Appeals previously has stated, the wrongful discharge tort

is “designed to fill a gap where a discharge in violation of

public policy would otherwise not be adequately remedied.”

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

1135 (2003). Although plaintiff in this case brought both a

statutory whistleblowing claim and a common-law wrongful

discharge claim, a plaintiff could not do so today under the

current statute.4

Although, in this case, the Court of Appeals cor-

rectly concluded that whistleblowing in the public employ-

ment context can give rise to a wrongful discharge claim,

Walker, 299 Or App at 447, it incorrectly suggested that the

existence of that important public policy rests on a court’s

legal determination of the plaintiff’s reasonable belief that

her employer violated the law in the whistleblowing context.

Whether a plaintiff has asserted an important public policy

by virtue of whistleblowing protected by ORS 659A.203(1)

is a legal question that does not require a court to conduct

a conjoined analysis of the reasonableness of the plaintiff’s

belief that her employer violated the law.

Although the question of whether a wrongful dis-

charge claim implicates an important public policy is a ques-

tion of law for the court, that does not mean that resolution

of the entire claim is for the court. Whether an employee had

an objectively reasonable belief that her employer violated

the law is a separate element of a common-law wrongful dis-

charge claim based on whistleblowing protected under ORS

659A.203(1). And, whether a plaintiff can establish that

4

When this case was litigated in 2015, the statutory claim was not as pro-

tective as the common-law wrongful discharge claim. Under the 2015 version

of ORS 659A.203, the statute provided only equitable remedies. Given the gap

in the available remedies, plaintiff was able to assert both claims. In 2016, the

legislature amended ORS 659A.203 to provide additional remedies, including

compensatory damages. See Or Laws 2016, ch 73, § 4 (amending ORS 659A.203

(2015); ORS 659A.203(3) (2019) (allowing for any remedy under ORS 659A.199);

ORS 659A.199 (allowing for remedies provided by ORS chapter 659A); ORS

659A.885(3)(a) (allowing the trial court to award compensatory damages). A

plaintiff today, therefore, would be afforded a complete remedy under the current

statute and could no longer bring both a statutory whistleblowing claim under

ORS 659A.203 and a common-law wrongful discharge claim.

780 Walker v. Oregon Travel Information Council

separate element is, in most cases, an issue reserved for the

trier of fact.

B. Plaintiff’s Reasonable Belief as to Violation of Law

In light of plaintiff’s theory that she was wrong-

fully discharged for statutorily protected whistleblowing,

plaintiff proceeded at trial to prove the elements of statu-

tory whistleblowing. The disputed element in this case con-

cerned whether plaintiff had proved that her belief that her

employer had violated the law was reasonable. In evaluating

reasonableness, the Court of Appeals held that “[w]hether

plaintiff had an objectively reasonable belief is a question

of law for the court.” Walker, 299 Or App at 447 (internal

quotations omitted). We disagree.

In holding that a plaintiff’s reasonable belief is

a question of law in a whistleblowing claim, the Court of

Appeals relied on one of its own cases, Miller v. Columbia

County, 282 Or App 348, 385 P3d 1214 (2016), rev den, 361

Or 238 (2017). Miller involved a civil action for false arrest

and malicious prosecution in an underlying criminal case.

Id. at 349. The Court of Appeals in that case reviewed

whether a police officer had a reasonable belief that a plain-

tiff had committed a crime, and whether that officer had

probable cause to make an arrest, as a question of law.

Id. at 355-56, 358. The issue in Miller concerned the reason-

ableness of a police officer’s beliefs in the context of police

actions (a stop and an arrest), as to which courts apply legal

doctrines that flow from basic constitutional protections

against unreasonable government seizures. Miller did not

involve any issue relating to wrongful discharge, whistle-

blowing, or employment law generally. We are unpersuaded

by the Court of Appeals’ reliance on Miller to support its con-

clusion that the same legal-error standard of review at issue

there is warranted to measure an employee’s belief that her

employer violated the law before she reported the violation.

Rather, we are persuaded that the issue is a question

of fact that can generally be left to jurors, a conclusion that

the Court of Appeals had already reached before it decided

Walker. In Hall v. State of Oregon, 274 Or App 445, 366 P3d 345

(2015), the trial court granted the employer’s motion for sum-

mary judgment on the plaintiff’s statutory public employee

Cite as 367 Or 761 (2021) 781

whistleblower and wrongful discharge claims. The Court of

Appeals reversed on appeal, concluding that the plaintiff had

“presented evidence to create a genuine issue of material fact

that he acted with subjective, good faith” and “that he had an

objectively reasonable belief for purposes of ORS 659A.203.”

Id. at 454. The court explained that the plaintiff’s evidence

“could support a finding” of his reasonable belief. Id. And like

defendant in this case, the state employer in Hall argued that,

“because the report was not objectively reasonable, plaintiff

could have no wrongful discharge claim.” Id. at 455. But the

Court of Appeals rejected that argument because the plain-

tiff “presented evidence sufficient to create a question of fact

as to the objective reasonableness of his report.” Id.; accord

Love v. Polk County Fire District, 209 Or App 474, 495, 149

P3d 199 (2006) (holding that a genuine issue of material fact

existed regarding whether the plaintiffs’ belief that the mar-

shal was unlawfully backdating documents in a cover-up was

objectively reasonable).

The reasonableness of an employee’s belief about her

employer’s violation of law is similar to the kind of factual

determination about reasonableness that jurors routinely

make in civil claims alleging negligence. In the context

of negligence, this court has held that whether a tortfea-

sor acted reasonably under the duty element is a question

of fact. Fazzolari v. Portland School Dist. No. 1J, 303 Or 1,

734 P2d 1326 (1987). In Fazzolari, a student was sexually

assaulted on school grounds and alleged that the school dis-

trict failed to protect her after similar attacks had occurred

in the area weeks before the assault. Id. at 3. The court held

that whether the school district acted reasonably under

its duty to protect the student from reasonably foreseeable

harm was a question of fact for the jury. Id. at 19. In hold-

ing that the determination of reasonableness is a question

of fact, the court relied on Stewart v. Jefferson Plywood Co.,

255 Or 603, 608, 469 P2d 783 (1970) to reiterate that “[a]s

far as ‘negligence’ rests on a standard of reasonable conduct,

the issue ordinarily can be left to the jury * * *.” Id. at 12.

The question of the reasonableness of a plaintiff’s

belief also arises in other types of employment-related

claims, and the question generally is one of fact for the

jury. For example, the reasonableness of a plaintiff’s belief

782 Walker v. Oregon Travel Information Council

or perception is an element in employment discrimination

cases brought under Title VII of the Civil Rights Act of 1964

that involve hostile work environments. The United States

Supreme Court has stated that a plaintiff may establish

a hostile work environment “[s]o long as the environment

would reasonably be perceived, and is perceived, as hostile

or abusive * * *.” Harris v. Forklift Systems Inc., 510 US 17,

22, 114 S Ct 367, 126 L Ed 2d 295 (1993); see also Montell v.

Diversified Clinical Services, Inc., 757 F3d 497, 505 (6th Cir

2014) (reversing summary judgment on state law retalia-

tion claim because evidence was sufficient to show that the

plaintiff could have had an objectively reasonable belief that

her supervisor unlawfully sexually harassed her before she

reported it, and her belief was a question of credibility for a

jury).

And specifically with respect to whistleblower pro-

tection for employees, other jurisdictions also conclude that

the reasonableness of the plaintiff’s belief that the employer

was violating the law is a question of fact. In an article on

whistleblowing in private employment, one author has noted

that the issues of

“[w]hether an employee made a report both in good faith

and with a reasonable belief within the meaning of a

whistleblower statute have been construed as questions of

fact.

“* * * * *

“If a statute protects an employee for reporting sus-

pected violations, the reasonableness of the employee’s sus-

picions is a question of fact, typically for the jury to resolve.”

Frank J. Cavico, Private Sector Whistleblowing and the

Employment-at-Will Doctrine: A Comparative Legal, Ethi-

cal, and Pragmatic Analysis, 45 S Tex L Rev 543, 615-16

(2004) (internal references omitted).

Similarly, other states with whistleblower protec-

tions for public employees also reserve the issue of the reason-

ableness of the plaintiff’s belief for the trier of fact. The New

Jersey Supreme Court has held that, in a statutory whistle-

blowing action, whether an employee had a reasonable belief

that her employer violated the law is a question of fact for

Cite as 367 Or 761 (2021) 783

the jury. Dzwonar v. McDevitt, 177 NJ 451, 464, 828 A2d 893

(2003). In Dzwonar, the plaintiff contended that the employ-

er’s executive board had wrongfully discharged her because

of her complaints that the board had violated federal law

and its own bylaws. Id. at 456, 828 A2d at 896. On review,

the New Jersey Supreme Court addressed the elements of a

whistleblowing claim under the applicable New Jersey stat-

ute.5 Id. at 462, 828 A2d at 900. The court held that, when

a plaintiff brings a whistleblowing claim pursuant to the

statute, it is a question of law for the trial court to determine

whether a source of authority or an expression of public pol-

icy would be thwarted if the alleged violation were true.

Id. at 463, 828 A2d at 901. Once the court makes that legal

determination, the jury usually determines whether the

employee’s belief concerning the alleged violation of law was

reasonable. Id. at 464, 828 A2d at 902. As the New Jersey

Supreme Court explained, a plaintiff

“must set forth facts that would support an objectively rea-

sonable belief that a violation has occurred. In other words,

when a defendant requests that the trial court determine

as a matter of law that a plaintiff’s belief was not objec-

tively reasonable, the trial court must make a threshold

determination that there is a substantial nexus between

the complained-of conduct and a law or public policy identi-

fied by the court or the plaintiff. If the trial court so finds,

the jury then must determine whether the plaintiff actually

held such a belief and, if so, whether that belief was objec-

tively reasonable.”

Id. at 464, 828 A2d at 901-02 (emphasis added).

In sum, unless the trial court concludes that the

record is such that no reasonable juror could find for the

plaintiff on the issue, whether the employee held a reasonable

5

New Jersey’s whistleblowing statute, the Conscientious Employment

Protection Act (CEPA), NJ Stat Ann § 34:19-3, closely resembles Oregon’s public

employee whistleblowing statute. CEPA provides that an employer may not retal-

iate against an employee who:

“a. Discloses, or threatens to disclose to a supervisor or to a public body

an activity, policy, or practice of the employer * * * that the employee reason-

ably believes:

“(1) is in violation of a law, or a rule or regulation promulgated pursuant

to law * * *.”

NJ Stat Ann § 34:19-3.

784 Walker v. Oregon Travel Information Council

belief that the employer violated the law is an issue of fact

for the jury. With that legal framework established, we turn

to the second issue that the parties raise: whether the jury

could find that plaintiff had a reasonable belief that the

Council violated the law when she sent her memorandum to

Jordan.

The jury was instructed that, for the plaintiff to

recover for wrongful discharge, it had to find that (1) she

was discharged, (2) that a substantial factor in the deci-

sion to discharge her was that she had “engaged in whistle-

blowing,” and (3) that she suffered damages. The jury also

was instructed that, to prove that she had engaged in

whistleblowing, plaintiff was required to prove the reason-

ableness of her belief; specifically, she had to show that she

“disclos[ed] information that the plaintiff reasonably believed

was evidence that her [public] employer * * * [v]iolat[ed] * * *

a state or federal law, rule, or regulation.” (Emphasis added.)

The trial court rejected defendant’s motions for directed ver-

dict, presented those issues for the jury to resolve, and the

jury returned a verdict in favor of plaintiff.

Plaintiff asserts, and we agree, that the Court of

Appeals did not employ the correct standard of review when

evaluating the reasonable-belief element of her claim. The

element was a question of fact, not a question of law for the

court. When a trial court has denied a defendant’s motion for

directed verdict, and the jury has issued a verdict in favor of

the plaintiff, a reviewing court cannot overturn the verdict

“unless [it] can affirmatively say that there is no evidence

from which the jury could have found the facts necessary to

establish the elements of plaintiff’s cause of action.” Brown

v. J. C. Penney Co., 297 Or 695, 705, 688 P2d 811 (1984)

(emphasis added). The reviewing court does not weigh the

evidence; it considers the evidence, including inferences, in

the light most favorable to plaintiff. Id.

Viewing the record in the light most favorable to

plaintiff for any evidence to support the jury’s finding, we

conclude that the evidence permitted the jury to find that

plaintiff had a reasonable belief that the Council violated

the law, either through violating her statutory authority as

Cite as 367 Or 761 (2021) 785

CEO under ORS 377.835(7) or violating the public meetings

law, or both.

Plaintiff produced evidence to support the jury’s

finding that she had a reasonable belief as to the Council’s

violation of law. A factfinder could have found that the

Council violated plaintiff’s authority as CEO under ORS

377.835(7) based on evidence that (1) plaintiff was hired

shortly after a Secretary of State audit noted that the

agency needed greater transparency and accountability;

(2) plaintiff was hired to implement the Secretary of State’s

audit recommendations, which noted that the agency needed

greater transparency and accountability, and recommended

that the agency implement an employee classification and

salary structure; (3) plaintiff had the statutory authority

to set staff salaries; (4) the Council rejected plaintiff’s pro-

posed salary structure that modeled the DAS system salary

range; (5) plaintiff testified that she did not believe that the

new salary implementation impacted the budget and, thus,

she did not believe that Council approval was necessary

before implementation; and (6) plaintiff’s memorandum to

Jordan reported that plaintiff believed that the Council was

exceeding its statutory authority and effectively performing

plaintiff’s statutory duties that are reserved for the CEO, a

professional executive administrator.

Additionally, a factfinder could have found that

plaintiff reasonably believed that the Council had violated

the public meetings law based on the evidence that (1) the

Council chair requested the March 2014 meeting after find-

ing out that plaintiff implemented a new salary structure;

(2) an attorney with the Department of Justice told plain-

tiff’s executive assistant that the March 2014 meeting was

supposed to be noticed as a public meeting; (3) the Council

chair instructed plaintiff’s executive assistant not to notice

the March 2014 meeting; (4) plaintiff served “at the pleasure

of the [C]ouncil” under ORS 377.835(7); (5) plaintiff testified

that she obeyed the Council chair’s instruction about not

providing public notice of the March 2014 meeting because

she felt that she was at risk for termination at that meeting

and did not want to further upset the Council beforehand;

(6) plaintiff conferred with a Department of Justice lawyer

before the March 2014 meeting because she feared that

786 Walker v. Oregon Travel Information Council

she would be terminated at that meeting; and (7) plaintiff

reported the violation to Jordan, the head of DAS, because

DAS had the authority to ensure ongoing compliance in the

future.

We are unpersuaded by defendant’s argument that

plaintiff could not have had a reasonable belief that the

Council violated the law, either under ORS 377.835(7) or

under the public meetings law. Defendant asserts that if any

violation of law did occur—namely, under the public meet-

ings law—it only occurred because plaintiff had violated the

law herself by not fulfilling her responsibilities as director.

Additionally, defendant contends that the Council acted

within its statutory authority to set budgets and limit the

CEO’s actions. Although those arguments certainly consti-

tuted defendant’s case and could have permitted the jury to

render a defense verdict, the jury rejected the defense the-

ory of the case and accepted plaintiff’s theory instead. The

trial court did not err by denying defendant’s motions for

directed verdict and judgment notwithstanding the verdict

and entering a judgment in plaintiff’s favor on her wrongful

discharge claim. The Court of Appeals erred in reversing on

that claim.

Our disposition is affected by plaintiff’s challenge

to the trial court’s dismissal of her statutory whistleblower

claim. Before the Court of Appeals, plaintiff argued that the

trial court was obligated to give credit to the jury’s findings

on the wrongful discharge claim in her favor when the trial

court considered her statutory claim, for which only equita-

ble relief was provided. The Court of Appeals rejected that

assignment of error because it reversed the wrongful dis-

charge claim, concluding that the jury should not have con-

sidered the wrongful discharge claim. We therefore remand

the case to the Court of Appeals to decide that assignment

of error anew.

The decision of the Court of Appeals is reversed,

and the case is remanded to the Court of Appeals for further

proceedings.