Cooper v. Robert G. Rust, Jr., D.M.D., PC

390 September 10, 2025 No. 809

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Holly COOPER,

Plaintiff-Appellant,

v.

ROBERT G. RUST, JR., D.M.D., PC;

Robert Rust, Jr.; and Traci Rust,

Defendants-Respondents.

Lane County Circuit Court

21CV36278; A179367

Karrie K. McIntyre, Judge.

Argued and submitted October 18, 2024.

Richard B. Myers argued the cause and filed the briefs for

appellant. Also on the opening brief was Bennett Hartman,

LLP.

Matthew E. Malmsheimer argued the cause for respon-

dents. Also on the brief were Chris Lundberg and Haglund,

Kelley LLP.

Before Shorr, Presiding Judge, Powers, Judge, and Pagán,

Judge.

PAGÁN, J.

Reversed and remanded.

Cite as 343 Or App 390 (2025) 391

PAGÁN, J.

In this wrongful termination case, plaintiff appeals

from a grant of summary judgment in favor of defendants.

Plaintiff, who was diagnosed with cancer, alleged that she

was fired by the dental office she worked for because of her

diagnosis and treatment. She sued the dental office and its

owners, alleging retaliation and discrimination based on

disability. On appeal, plaintiff asserts that the trial court

erred in granting summary judgment on four of her claims,

and we agree that the trial court erred on each. We conclude

that the trial court used the wrong legal standard on plain-

tiff’s sick time retaliation claim under ORS 653.641; we also

clarify that an employee is protected under the sick time

retaliation law even if they are ineligible for sick time. The

trial court erred in granting summary judgment on plain-

tiff’s discrimination claim under ORS 659A.109 by conclud-

ing that plaintiff did not ask for an accommodation because

there is a genuine issue of material fact as to whether

plaintiff requested accommodation. The trial court erred

on plaintiff’s discrimination claim under ORS 659A.112 by

concluding that her disability-induced absences disqualified

her from the position. Lastly, we accept defendants’ conces-

sion that the owners of the dental practice may be held liable

if the practice is held liable.1 Accordingly, we reverse and

remand on all claims before us.

I. BACKGROUND

“We review a trial court’s grant of summary judg-

ment for errors of law and will affirm if there are no genuine

disputes about any material fact and the moving party is

entitled to judgment as a matter of law.” Beneficial Oregon,

Inc. v. Bivins, 313 Or App 275, 277, 496 P3d 1104 (2021)

(internal quotation marks omitted). In so doing, “we view

the facts in the light most favorable to the nonmoving par-

ties,” and we “examine whether no objectively reasonable

juror could find in their favor on the question at issue.” Id.

In making that determination, “we examine ‘the pleadings,

depositions, affidavits, declarations, and admissions on

1

Because defendants concede error on assignment of error two, we discuss

plaintiff’s first, third and fourth assignments before discussing the concession

last.

392 Cooper v. Robert G. Rust, Jr., D.M.D., PC

file.’ ” Id. (quoting ORCP 47 C). We recount the facts in light

of the standard of review.

Defendant Dr. Robert Rust is the sole practitioner

of the eponymous Rust Dental practice in Eugene. He owns

the practice alongside his wife, defendant Ms. Traci Rust.

Ms. Rust had no formal role in the practice but would from

time-to-time act as its hiring manager and otherwise assist

its operation. We refer to Dr. Rust, Ms. Rust, and Rust

Dental collectively as defendants. In April 2021, Rust Dental

hired plaintiff to be the practice’s office manager. Only a

few weeks into the job, in May, plaintiff was unexpectedly

diagnosed with breast cancer. Plaintiff eventually under-

went major surgery on June 25, which required a period of

extended recovery. Dr. Rust granted plaintiff an extended

leave. Plaintiff returned to work on July 26.

Soon after, plaintiff developed complications, neces-

sitating emergency surgery on August 2, with further sur-

gery planned for the next week. Plaintiff requested time off

work, but defendants demurred. On August 7, a Saturday,

Dr. Rust and Ms. Rust called plaintiff, asked what she

wanted to do, to which she replied “I don’t know,” and

then pressured her to quit. On Monday August 9, plain-

tiff attended an appointment to prep her for further sur-

gery that Thursday, August 12. The same day, Dr. Rust and

Ms. Rust texted plaintiff “[w]e’re sorry for the way things

have gone but for your recovery we have decided to let you

go.” Plaintiff’s employment formally ended on August 11.

Plaintiff underwent further treatment in the fall of

2021 and brought this wrongful termination action against

defendants. The case proceeded to summary judgment,

where the trial court dismissed four of plaintiff’s claims that

are the subject of this appeal:2 Claim 2 under ORS 653.641,

as against all defendants, alleging retaliation for request-

ing sick time; Claim 3 under ORS 659A.030(1)(g), as against

Dr. Rust and Ms. Rust, for aiding and abetting unlawful

employment practices; Claim 4 under ORS 659A.109, as

against Rust Dental for discrimination because of request-

ing accommodation; and Claim 5 under ORS 659A.112, as

2

Claims 1 and 6 were not appealed and ultimately dismissed after appeal by

stipulation of the parties and are not at issue.

Cite as 343 Or App 390 (2025) 393

against Rust Dental, for discriminating against plaintiff

because of her disability.

II. ANALYSIS

A. Retaliation

In her first assignment of error, plaintiff asserts the

trial court erred in dismissing Claim 2 under ORS 653.641,

as against all defendants, alleging retaliation for requesting

sick time. Plaintiff argues that the court wrongly applied

the standard for punitive damages, rather than the gen-

eral standard for liability. Defendant argues that we should

apply the correct test on appeal and affirm under the “right

for the wrong reasons” doctrine. We agree with plaintiff that

the court used the wrong standard, and we decline to apply

the correct test for the first time on appeal.

ORS 653.641(2) provides that it is unlawful for an

employer to, as relevant here:

“Retaliate or in any way discriminate against an

employee with respect to any term or condition of employ-

ment because the employee has * * *, submitted a request

for sick time, [or] taken sick time * * *.”

In turn, sick time is time

“during which an employee is permitted to be absent from

work for a reason authorized under ORS 653.616 without

a reduction in benefits, including but not limited to health

care benefits, that the employee earns from the employer.”

ORS 653.601(7).

To prevail on a retaliation claim, an employee must

show that “1) they have a protected trait or engaged in a

protected activity, 2) they suffered an adverse employment

outcome, and 3) the protected trait or activity was a ‘sub-

stantial factor’ in the adverse decision.” Crosbie v. Asante,

322 Or App 250, 519 P3d 551, rev den, 370 Or 827 (2022).

An employer may put on evidence that there was a non-

retaliatory reason for the employment action, but unlike

under related federal law, Oregon retaliation law has no bur-

den shifting framework that requires the employee to show

why that explanation is unpersuasive. Compare McDonnell

Douglas Corp. v. Green, 411 US 792, 93 S Ct 1817, 36 L Ed

394 Cooper v. Robert G. Rust, Jr., D.M.D., PC

2d 668 (1973) (the burden shifting framework first requires

that the employee make a prima facie showing of discrim-

ination; if successful, then the burden shifts to employer

to show there was a non-retaliatory reason for the employ-

ment action; if the employer is able to make that showing,

then the burden shifts back to employee to show that the

non-retaliatory explanation was pretextual) with Williams

v. Freightliner, LLC, 196 Or App 83, 89, 100 P3d 1117 (2004)

(same).

The trial court reasoned that plaintiff had not

proved causation, noting, in part, that:

“No factual evidence has been alleged or presented which

is clearly or obviously showing ‘malice’, ‘reckless’, or ‘out-

rageous indifference’ to [plaintiff’]’s medical hardship by

Rust Dental or of any retaliatory action regarding the

employment of [plaintiff]. * * * The evidence provided here

seems to possibly suggest, as seen in Sampler, a healthcare

employer who was particularly sensitive and mindful of the

healthcare needs and hardships of their own employees,

even a newly hired probationary employee, rather than as

an employer with ‘outrageous indifference’ for the welfare

of others, as alleged in the plaintiff’s complaint.”

The requirement for malice, recklessness, or outra-

geous indifference is found nowhere in the retaliation stat-

ute, but those words are found in ORS 31.730(1), which pro-

vides the standard for the recovery of punitive damages.3

To the extent that the trial court believed plaintiff needed

to demonstrate “malice, recklessness or outrageous indiffer-

ence,” the trial court erred. Additionally, the trial court’s

statement that evidence “seems to possibly suggest,” indi-

cates two other errors: first, the court must view all evidence

in the light most favorable to the non-moving party; and sec-

ond, any genuine disputes of material fact are to be resolved

by the factfinder at trial. Bivins, 313 Or App at 277. That

the trial court found evidence could be read to exonerate

the defendant, and that such a possibility indicated that

3

The standard is either “has acted with malice” or “has shown a reckless and

outrageous indifference to a highly unreasonable risk of harm and has acted with

a conscious indifference to the health, safety and welfare of others,” both of which

must be proven by clear and convincing evidence. ORS 31.730(1). Note that reckless-

ness and outrageousness are part of the same standard, not separate standards.

Cite as 343 Or App 390 (2025) 395

summary judgment was appropriate in favor of the moving

party was an improper application of those principles.

Defendants go on to urge us to apply the correct

standard and affirm under the “right for the wrong reasons”

doctrine. We decline to do so because we remand on other

bases and resolution of the issue may require additional

factfinding.

We do however address a related legal issue that

the parties dispute, as it will arise on remand. Defendants

argue that plaintiff was out of sick time, could not have used

any more sick time, and therefore cannot be protected under

the sick time retaliation statute. As an issue of first impres-

sion, we turn to the statute. ORS 653.641(2) states that it is

unlawful for any employer to “Retaliate or in any way dis-

criminate against an employee with respect to any term or

condition of employment because the employee has * * * sub-

mitted a request for sick time, [or] taken sick time.” Nothing

in the plain text of the statute requires that a person have

sick time to be protected; the mere request is sufficient.

Defendant argues that we should instead consider

an unpublished 10th Circuit decision regarding the Family

Medical Leave Act (FMLA), which held that the FMLA

likely did not cover employees who were not eligible for fam-

ily leave. See Wilkins v. Packerware Corp., 260 Fed Appx 98

(10th Cir 2008). Plaintiff argues, and we agree, that Yeager

v. Providence Health System Oregon, 195 Or App 134, 140, 96

P3d 862, rev den, 337 Or 658 (2004), provides better guid-

ance for our interpretation.

In Yeager, we interpreted ORS 659A.183(2) (regard-

ing the Oregon Family Leave Act, or OFLA), which makes

retaliation under OFLA unlawful when an employee has

“submitted a request for family leave or invoked any pro-

vision of ORS 659A.150 to 659A.186.” Yeager, 195 Or App

at 140. We concluded that protection from retaliation under

OFLA was “not limited to an employee who is eligible and

has taken OFLA-protected leave.” Id. Here, the plain word-

ing of ORS 653.641 states that the request for sick time alone

entitles a worker to protection. Using the Supreme Court’s

analysis under State v. Gaines, 346 Or 160, 164, 206 P3d

396 Cooper v. Robert G. Rust, Jr., D.M.D., PC

1042 (2009) (the text and context of a statute are the first

level of statutory analysis) we conclude that an employee

who requests sick time, regardless of whether they have

accrued eligible sick time to use, is protected.

B. Requesting Accommodation and the Interactive Process

In her third assignment of error, plaintiff asserts

that the trial court erred in granting summary judgment

on Claim 4, under ORS 659A.109, as against Rust Dental

for discrimination because of requesting an accommodation.

Plaintiff argues the trial court erred by concluding that she

did not request an accommodation, and by applying the

wrong standard.

We agree that the trial court made the same errors

as in Claim 2, namely that it used the punitive damages

standard that was inapplicable to the claim, and that the

court weighed the evidence in defendant’s favor, contrary

to the summary judgment standard. In its opinion and

order granting summary judgment, the trial court wrote,

regarding the accommodation claim, that “[plaintiff] did not

engage in an interactive process regarding accommodation

because she never made a request for accommodation.” The

trial court reasoned that plaintiff’s request for extra sick

time was not a request for accommodation because she did

not “identify a reasonable accommodation but rather sug-

gested unlimited and unrestricted leave with no concrete

plans to return or any requests for additional accommoda-

tion.” The trial court also, again, noted that there was no

proof of malice, recklessness or outrageous indifference on

the part of defendants.

ORS 659A.109 provides that

“It is an unlawful employment practice for an employer

to discriminate against an individual with respect to hire

or tenure or any term or condition of employment because

the individual has applied for benefits or invoked or used

the procedures provided for in ORS 659A.103 to 659A.145 or

has given testimony under the provisions of ORS 659A.103

to 659A.145.”

Requesting accommodation is protected under ORS

659A.109. Herbert v. Altimeter, Inc., 230 Or App 715, 218 P3d

Cite as 343 Or App 390 (2025) 397

542 (2009). OAR 839-006-0206(4) 4 establishes that request-

ing accommodation is part of an “interactive process,” which

places burdens on both the employee and the employer. The

act of requesting accommodation is often done with plain

language in ordinary conversations. OAR 839-006-0206(5)

(“A meaningful interactive process is an informal process

between a qualified employee or applicant with a disability

and an employer in an effort to identify potential reason-

able accommodation.”); see also Humphrey v. Mem’l Hosps.

Ass’n, 239 F3d 1128, 1137 (9th Cir 2001) (a letter that stated

employee “may have to take some time off until we can get

the symptoms better under control” was sufficient to satisfy

the “minimal requirements” for engaging in the interactive

process).5 “[T]he duty to accommodate is a continuing duty

that is not exhausted by one effort.” Humphrey, 239 F3d at

1138 (internal quotations omitted).

Here, regarding the evidence that was submitted

in support of and in opposition to summary judgment, the

trial court once again noted that the evidence might suggest

that defendants were not given “information necessary and

essential to collaborate with” plaintiff on an accommodation.

As a result of that observation about the inferences from the

available facts, the trial court concluded that plaintiff’s dis-

cussions did not qualify as engaging in an interactive process

with her employer. We disagree, and again note that, to the

extent the evidence was equivocal, the court was required to

view the evidence in the light most favorable to plaintiff and

4

OAR 839-006-0206(4) states:

“Once a qualified employee or applicant with a disability has requested

reasonable accommodation or otherwise disclosed to the employer a disabil-

ity that may require reasonable accommodation, the employer has a duty to

initiate a meaningful interactive process with the employee or applicant to

determine whether reasonable accommodation would allow the employee or

applicant to perform the essential functions of a position held or sought.”

5

We may rely on federal caselaw in our analysis because Oregon discrimi-

nation law is modeled after the Federal Americans with Disabilities Act (ADA),

and the legislature has directed us to construe Oregon law in “lockstep” with

federal law. ORS 659A.139; Fenimore v. Blachly-Lane County C.E.A., 297 Or App

47, 56, 441 P3d 699 (2019). “However, ORS 659A.139 does not require absolute

symmetry between our statutory protections for individuals with disabilities and

those afforded by the ADA.” Fenimore, 297 Or App at 56. “To the extent that a

particular provision of our statutory scheme cannot be construed consistently

with similar provisions in the ADA, we do not look to the ADA and case law inter-

preting it to determine the meaning or scope of our laws.” Id.

398 Cooper v. Robert G. Rust, Jr., D.M.D., PC

deny summary judgment if there were any genuine disputes

about material facts. See Beneficial Oregon, Inc., 313 Or App

at 277 (discussing summary judgment standard).

The declarations submitted demonstrated that the

Rusts knew of plaintiff’s diagnosis and prognosis and com-

municated with her about her needs well before the day of

plaintiff’s termination. Ms. Rust admitted that plaintiff

requested two weeks off at the time of her first surgery.

Declarations indicated that plaintiff would lay out her med-

ical needs to Dr. Rust or Ms. Rust, and then they would

accordingly grant her absence. In those circumstances, we

conclude that the evidence was sufficient for a factfinder to

find that plaintiff engaged in an interactive process. See

Garcia v. Salvation Army, 918 F3d 997, 1010 (9th Cir 2019)

(employer engaged in interactive process when it repeatedly

extended employee’s leave of absence due to fibromyalgia).

That is not to say that the evidence could not support defen-

dants’ argument that plaintiff failed to sufficiently commu-

nicate with them, as the trial court concluded, or that there

were long periods without communication with plaintiff at

all. But looking at the evidence in the light most favorable to

plaintiff, there is a genuine issue of material fact.

Defendants point out that during the August 7 call,

when asked what she wanted to do in regard to her upcom-

ing surgery, plaintiff responded “I don’t know;” defendants

argue that that was proof that she failed to request an accom-

modation or engage in the interactive process. We reject any

argument that plaintiff’s request was not in the appropriate

form. Considering the evidence of the call with defendants

on August 7, a reasonable juror could conclude that defen-

dants prevented plaintiff from requesting further time off,

as she had notified them of the emergency surgery that was

scheduled for later that week, and defendants, according to

plaintiff, pressured her to quit. On the 9th, the same day as

her next appointment, she received a text message termi-

nating her employment. A reasonable juror could infer that

plaintiff did not know how much time she needed to request

until she was out of surgery and knew whether it was suc-

cessful or had further complications, and that defendants’

Cite as 343 Or App 390 (2025) 399

actions were coordinated to avoid allowing plaintiff to be

able to make any request—thus allowing them to be able to

claim this very defense.

Further, the evidence demonstrated that defen-

dants had treated plaintiff differently than other employees

who had requested leave, and that they had shifted the bur-

den to her to request the specific time off that she needed (as

demonstrated in the “I don’t know” conversation). As other

courts have noted in similar circumstances considering the

“interactive process,” once the interactive process begins,

the burden is on the employer to provide the employee with

reasonable options. See Humphrey, 239 F3d at 1137 (discuss-

ing the interactive process as it relates to the Americans

with Disabilities Act (ADA)). A rational juror could find, pro-

viding all reasonable inferences to plaintiff, that plaintiff

needed an accommodation—such as a leave of absence—but

defendants required plaintiff to explain specifically what

she wanted, rather than offer a period of leave, like they had

done with another employee with a less serious diagnosis.

In sum, plaintiff raised a genuine issue of material

fact as to whether she requested an accommodation. The

trial court erred by dismissing Claim 4.

C. Discrimination

In her fourth assignment of error, plaintiff asserts

the trial court erred in granting summary judgment on

Claim 5, under ORS 659A.112, as against Rust Dental,

for discriminating against plaintiff because of her disabil-

ity. The trial court, relying on Samper v. Providence St.

Vincent Med. Ctr., 675 F3d 1233 (9th Cir 2012), concluded

that plaintiff’s job required regular in-person attendance,

that her disability-related absences were not excusable, and

that in turn she was not qualified for the position; therefore,

defendants did not discriminate against her because of her

disability. We conclude that the trial court misapplied the

relevant law and overstated the importance of Samper.

Under Oregon law, employers may not fail to accom-

modate a “qualified individual with a disability.” ORS

659A.112(2)(e). Qualified means that a person “with or without

400 Cooper v. Robert G. Rust, Jr., D.M.D., PC

reasonable accommodation, can perform the essential func-

tions of the position.” ORS 659A.115. Defendants argue that

plaintiff was not actually qualified for the position because

she was not performing the job adequately, did not want the

job, and that her absences were not a reasonable accommo-

dation. Plaintiff argues she was qualified, and that a leave of

absence would have been a reasonable accommodation.

1. Competency

Defendants alleged that plaintiff was making novice

mistakes, failing to handle a range of office tasks, and that

she was oversharing about her diagnosis and treatment—

which was off-putting to patients and staff. But plaintiff

alleged that she was performing the job admirably, that any

mistakes were due to being new to the job and her cancer diag-

nosis and argues that defendants’ arguments are pretexts for

discrimination. Under the circumstances, whether plaintiff’s

mistakes were serious enough to render her unqualified are

a jury question. See Kelley v. Washington County, 303 Or App

20, 36, 463 P3d 36 (2020) (whether corrections officer was

qualified for prison job was question for jury).

Further, an employee is not unqualified for the posi-

tion merely because their disability has affected their perfor-

mance. Humphrey, 239 F3d at 1137 (medical transcriptionist

who missed work due to OCD symptoms was not unqualified

merely because her OCD was interfering with her atten-

dance). “[W]here a leave of absence would reasonably accom-

modate an employee’s disability and permit him, upon his

return, to perform the essential functions of the job, that

employee is otherwise qualified under the ADA.” Id. at 1135-

36. In that same vein, plaintiff here has alleged that any

performance issues were a result of her physically and men-

tally taxing cancer treatment. We agree that the facts in the

record, viewed in the light most favorable to plaintiff, could

support such an inference. There is at least a triable issue of

fact as to whether plaintiff was qualified for the position.

2. Attendance and Samper

Defendants argue at length that, under Samper,

plaintiff was required to come into work. To that end, defen-

dants argue that the job could not have been done from home,

Cite as 343 Or App 390 (2025) 401

and, thus, the accommodation plaintiff sought was unreason-

able. The trial court adopted a similar analysis. But whether

the job could have been done from home is irrelevant because

that was not the accommodation that plaintiff sought. We

read the issue as being whether plaintiff’s request for more

medical leave was a reasonable accommodation. We conclude

that it was, and that Samper is an inapt comparison.

We make a “fact-specific, individualized analysis”

of a proposed accommodation. Samper, 675 F3d at 1239. The

situation in Samper is distinct from the circumstances here.

In Samper, the plaintiff was a nurse in a neo-natal intensive

care unit (NICU). Id. at 1235. She had been diagnosed with

fibromyalgia, an incurable pain condition which may flare

unexpectedly. Id. The nurse sought absences whenever her

condition flared and had done so over the course of several

years,6 routinely exceeding her employer’s absence policy.

Id. The Ninth Circuit held that a NICU nurse’s job was so

essential that her employer was not required to put up with

chronic absenteeism, even as the result of a disability. Id.

at 1241 (“In the case of a neo-natal intensive care nurse, we

conclude that attendance really is essential.”).

Unlike Samper, the plaintiff here does not care for

premature infants at high risk of death; she files paperwork

and does routine office tasks. Her condition, while serious,

was emergent and the evidence provided to the court did

not allow for an inference of a chronic or degenerative con-

dition. It could have been a reasonable accommodation to

allow plaintiff unpaid medical leave to recover from her

emergency surgery. See Nunes v. Wal-Mart Stores, Inc., 164

F3d 1243, 1247 (9th Cir 1999) (unpaid medical leave can be

a reasonable accommodation). On the facts presented in this

record, a juror could rationally find that plaintiff’s request

for accommodation could have reasonably been provided by

defendant. Plaintiff has raised a genuine issue of material

fact as to whether a period of medical leave would have been

a reasonable accommodation as a result of her emergency

surgery and ongoing cancer treatment.

6

The nurse had worked for the hospital for some 11 years. She had only been

diagnosed with fibromyalgia several years prior to being fired, but the evidence

indicated that her attendance had been spotty since early in her employment.

Samper, 675 F3d at 1235.

402 Cooper v. Robert G. Rust, Jr., D.M.D., PC

Defendants contend that they should not have been

required to keep plaintiff on staff indefinitely while they

tried to have other staff members and alternatively a family

member take over plaintiff’s duties during her absences. We

agree that, at trial, they are free to argue to the factfinder

that such an accommodation was an undue hardship. See

ORS 659A.112(2)(e) (it is unlawful to not make reasonable

accommodations “unless the employer can demonstrate that

the accommodation would impose an undue hardship on the

operation of the business of the employer.”). But we reject

the notion that giving plaintiff medical leave under the

circumstances was an undue hardship as a matter of law

based on the evidence presented in support of the motion

for summary judgment. What a reasonable amount of leave

was under the circumstances is ultimately a question of fact

for the factfinder.

D. Individual Liability of Dr. Rust and Ms. Rust

Looping back to plaintiff’s second assignment of

error, plaintiff asserts that the trial court erred in dismiss-

ing Claim 3 under ORS 659A.030(1)(g), as against Dr. Rust

and Ms. Rust, for aiding and abetting unlawful employ-

ment practices. The trial court concluded that Dr. Rust and

Ms. Rust could not be held individually liable because they

had been acting within the scope and authority of their posi-

tions at Rust Dental. Plaintiff argues that decision makers

in a company may be held individually liable. Defendants

concede that if Rust Dental is found liable, that Dr. Rust and

Ms. Rust could potentially be held liable, but argues that

they cannot be held liable if Rust Dental is not liable.

We accept defendants’ concession that Dr. Rust and

Ms. Rust, as decision makers for Rust Dental, can be held

individually liable if Rust Dental is found liable. “[P]ersons

directing the business-entity employer’s unlawful conduct

can be held individually liable under ORS 659A.030(1)(g).”

See Allison v. Dolich, 321 Or App 721, 726, 518 P3d 591

(2022) (owner and manager of LLCs were not insulated from

liability for unlawful wage practices they implemented). In

turn, the trial court erred by dismissing Claim 3.

Cite as 343 Or App 390 (2025) 403

We do not reach the parties’ arguments about

whether Dr. Rust and Ms. Rust can be held liable inde-

pendently of Rust Dental, because defendants’ arguments

are predicated on the dismissal of the claims against Rust

Dental, and we have already determined that those dismiss-

als were erroneous.

III. CONCLUSION

As to Claim 2, the trial court erred by applying

the wrong legal standard, and we reverse and remand to

reconsider in light of the correct standard. As to Claims 4

and 5, the trial court erred in the application of the rele-

vant accommodation law and thus there remains a genuine

dispute of material fact as to whether Rust Dental discrim-

inated against plaintiff. In turn, we accept defendants’ con-

cession on Claim 3 that Dr. Rust and Ms. Rust may (but

not must) be held individually liable if Rust Dental is found

liable. Accordingly, we reverse and remand all claims before

us.

Reversed and remanded.