Mercado v. Rogue Disposal & Recycling, Inc.

874 March 18, 2026 No. 216

This is a nonprecedential memorandum opinion

pursuant to ORAP 10.30 and may not be cited

except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Carlos MERCADO,

an individual,

Plaintiff-Appellant,

v.

ROGUE DISPOSAL & RECYCLING, INC.,

a domestic corporation established

in the State of Oregon,

Defendant-Respondent.

Jackson County Circuit Court

23CV44648; A184307

Timothy Barnack, Judge.

Argued and submitted February 19, 2026.

Michael W. Franell argued the cause and filed the briefs

for appellant.

Jacqueline Houser argued the cause for respondent. Also

on the brief were Gilbert Cotto-Lazo and Littler Mendelson,

P.C.

Before Tookey, Presiding Judge, Lagesen, Chief Judge,

and Kamins, Judge.

KAMINS, J.

Reversed and remanded.

Nonprecedential Memo Op: 347 Or App 874 (2026) 875

KAMINS, J.

Plaintiff, defendant’s employee, appeals from a

motion to dismiss for failure to state ultimate facts suffi-

cient to constitute a claim under ORCP 21 A(1)(h) regard-

ing two employment discrimination claims—retaliation and

failure to promote based on racial discrimination. Because

his complaint alleged facts that, if true, are sufficient to con-

stitute a retaliation claim and a racial discrimination claim,

we reverse and remand for further proceedings.

“We review the grant of a motion to dismiss for

failure to state a claim [under ORCP 21 A(1)(h)] for legal

error, assuming the truth of all allegations in the complaint,

as well as any inferences that may be drawn, and viewing

them in the light most favorable to the nonmoving party.”

Rivas v. Board of Parole, 277 Or App 76, 78, 369 P3d 1239

(2016), rev den, 360 Or 752 (2017) (internal quotation marks

omitted).

To state a claim sufficient to survive a motion to

dismiss, a plaintiff’s complaint must allege ultimate facts

that, if true, are sufficient for a factfinder to find for the

plaintiff. Moore v. Portland Public Schools, 328 Or App 391,

420-21, 537 P3d 544 (2023). “A claim will survive a motion

to dismiss if the complaint contains even vague allegations

of all material facts.” Moyer v. Columbia State Bank, 316 Or

App 393, 403, 505 P3d 26 (2021), rev den, 369 Or 705 (2022).

However, conclusions of law alone are insufficient. Fearing v.

Bucher, 328 Or 367, 371, 977 P2d 1163 (1999).

First Assignment of Error. Plaintiff contends that

the trial court erred by granting the motion to dismiss as

to his retaliation claim under former ORS 659A.030(1)(f)

(2021), renumbered as ORS 659A.030(1)(g) (2025). Under

former ORS 659A.030(1)(f) (2021), as relevant here, it is an

unlawful employment practice for any person to discrimi-

nate against any other person because that other person has

opposed racial discrimination. Therefore, to survive a motion

to dismiss, plaintiff must plead ultimate facts that if true

establish that (1) he complained of racial discrimination—a

protected activity, (2) he was subject to an adverse action,

and (3) the adverse action was taken against him because of

876 Mercado v. Rogue Disposal & Recycling, Inc.

his protected complaint. Medina v. State of Oregon, 278 Or

App 579, 588, 377 P3d 626 (2016).

Plaintiff clearly alleged ultimate facts that, if true,

are sufficient to establish the first two elements. He alleged

that he complained “that certain employees were making

illegal comments regarding [plaintiff] being Hispanic,” sup-

porting that he acted to defend his right to not be subject to

racial discrimination—a protected activity. See Cuddigan-

Placito v. SAIF, 335 Or App 663, 676, 560 P3d 715 (2024)

(“[A protected activity] must be an activity linked to defend-

ing, in some manner, the rights afforded in ORS chapter

659A.”). As to the second element—that he was subject to an

adverse action, he alleged that several months after filing

his complaint, he requested a repair for an equipment failure

in his work truck. Repeated requests to repair equipment

failures in his work truck were not addressed over a ten-

month period, exposing him to extreme heat during work

and leading to him experiencing heat exhaustion. See Meyer

v. Oregon Lottery, 292 Or App 647, 679, 426 P3d 89 (2018) (to

constitute adverse action under former ORS 659A.030(1)(f)

(2021), the action must have been materially adverse such

that it was “harmful to the point that it could well dissuade

a reasonable worker from making or supporting a charge of

discrimination”).

As to the third element, plaintiff alleged sufficient

ultimate facts to support a causal connection between the

protected activity and the adverse action. He alleged that a

substitute driver’s repair request was addressed within three

days and that the failure to repair his equipment occurred

several months after the report, supporting an inference

of causation based on disparate treatment and temporal

proximity. See id. at 684 (four-month gap between protected

activity and adverse employment action combined with

other evidence sufficient to raise an issue of material facts

regarding causation); see also Boynton-Burns v. University

of Oregon, 197 Or App 373, 380, 105 P3d 893 (2005) (causal

connection can be established indirectly through temporal

proximity or “other evidence such as disparate treatment”).

Plaintiff also alleged sufficient ultimate facts to

support a reasonable inference that defendant knew of

Nonprecedential Memo Op: 347 Or App 874 (2026) 877

plaintiff’s protected activity. Defendant’s direct or imputed

knowledge of the protected activity is necessary to establish

a causal connection. See Meyer, 292 Or App at 685 n 12 (no

causal connection where no evidence supporting a reason-

able inference that the person who undertook the adverse

action knew of the protected activity). Here, plaintiff did not

directly allege that defendant knew of the protected activity,

but defendant’s knowledge can be inferred from plaintiff’s

allegation that:

“[He] complained that certain employees were making ille-

gal comments regarding [plaintiff] being Hispanic. After

filing those complaints, [plaintiff] began experiencing

retaliation.”

Drawing a reasonable inference in plaintiff’s favor from

those allegations, we conclude plaintiff adequately alleged

defendant’s knowledge. Cf. Moyer, 316 Or App at 405 (draw-

ing reasonable inference that plaintiff adequately alleged

defendant’s agreement to contract based on directly alleged

fact supporting consideration and later actions conforming

with agreement).

In arguing for a contrary result, defendant first con-

tends that plaintiff failed to allege facts sufficient to estab-

lish a protected activity because he omitted what illegal

comments were made and by whom. However, plaintiff need

not show that the comments were actually discriminatory in

order for his report to be considered a protected activity. See

Boynton-Burns, 197 Or App at 380 (“An employee can pre-

vail on a retaliation claim by establishing that the employer

retaliated against [him] for opposing claimed discrimina-

tory practices even if the practices were not, in fact, discrim-

inatory.”). Second, defendant contends that failure to repair

plaintiff’s work vehicle cannot be an adverse employment

action because under former ORS 659A.030(1)(f) (2021). The

analysis of an adverse employment action under former ORS

659A.030(1)(f) (2021) centers on what would dissuade a rea-

sonable worker from opposing an unlawful practice, and

includes employment actions beyond “compensation, terms,

conditions, or privileges of employment.” Meyer, 292 Or App

at 679; see also Summerfield v. OLCC, 366 Or 763, 783, 472

P3d 231 (2020) (noting adverse employment actions under

878 Mercado v. Rogue Disposal & Recycling, Inc.

former ORS 659A.030(1)(f) (2021) include broader conduct

than “terms, conditions, or privileges of employment” cov-

ered under a whistleblowing claim under ORS 659A.199).

Therefore, we reject defendant’s argument that plaintiff’s

claim fails for that reason.

Overall, giving plaintiff the benefit of all favorable

inferences that may be drawn from his factual allegations,

plaintiff alleged sufficient ultimate facts that, if true, consti-

tute a retaliation claim.

Second Assignment of Error. Plaintiff contends that

the trial court erred by granting defendant’s motion to dis-

miss plaintiff’s claim of racial discrimination under ORS

659A.030(1)(b). ORS 659A.030(1)(b) provides, as relevant

here, that it is an unlawful employment practice for an

employer to discriminate against an individual in compen-

sation or in terms, conditions, or privileges of employment

based on the individual’s race. To plead ultimate facts suffi-

cient to constitute a claim of racial discrimination, plaintiff

must plead that (1) plaintiff is a member of a protected class,

(2) plaintiff was qualified for the job sought, (3) plaintiff suf-

fered an adverse employment action—the failure to promote,

and (4) other similarly situated nonminority employees were

treated more favorably.” Miller v. Racing Commission, 298 Or

App 70, 90, 445 P3d 371 (2019); Medina, 278 Or App at 587.

First, plaintiff identifies as Hispanic. Second, he

alleged that he regularly trained new drivers, training a

total of eleven different drivers, and was a senior employee,

having worked for defendant for 22 years. Third, he alleged

that he “several times expressed a desire to be promoted” to

a driver trainer position and was never promoted. Fourth,

he alleged that two less-experienced and less-qualified

white employees trained by plaintiff were promoted. Thus,

plaintiff pled ultimate facts sufficient to constitute a claim

of racial discrimination.

Defendant contends that plaintiff failed to plead

with sufficient detail two required ultimate facts. In consid-

ering defendant’s arguments, federal case law considering

the analogous provision of Title VII provides helpful guid-

ance. See H.K. v. Spine Surgery Center of Eugene, 305 Or

Nonprecedential Memo Op: 347 Or App 874 (2026) 879

App 606, 611, 470 P3d 403 (2020), rev den, 367 Or 826 (2021)

(“Oregon courts look to federal cases construing Title VII for

guidance in construing ORS 659A.030.”).

First, defendant argues that plaintiff failed to allege

when he had expressed his desire for a promotion in order to

allow comparison to the similarly situated nonminority pro-

motions. Because there was no formal application process,

plaintiff was not required to apply or otherwise express a

desire for a promotion in order to plead his prima facie claim

of discrimination, let alone specify when such expression

occurred. Cf. Lyons v. England, 307 F3d 1092, 1114 (9th Cir

2002) (explaining that in evaluating parallel Title VII provi-

sion, an application or expression of interest in promotion is

not required where the employer has no formal application

process for promotions).

Second, defendant contends that plaintiff failed

to specify what qualifications were required for the driver

trainer position to determine if he was qualified for the job.

Where an employer “has not published the qualifications for

positions that were awarded without a competitive applica-

tion process,” an employee need only allege “circumstantial

evidence of his qualification for the position” to plead a prima

facie case. Id. Here, plaintiff alleged such circumstantial

ultimate facts, including that he “was one of the most senior

employees,” regularly trained new drivers, had “trained a

total of eleven different drivers,” and that two employees

with “significantly less experience and skills” had been pro-

moted to the sought position within two years after being

trained by him. Those alleged facts, if true, are sufficient for

a factfinder to find that plaintiff was qualified for and was

not promoted to the sought position due to his race.

Finally, defendant contends that plaintiff failed to

follow the trial court’s direction to include additional fac-

tual allegations. The complaint pleaded ultimate facts that,

if true, constitute a retaliation claim under former ORS

659A.030(f) (2021) and racial discrimination under ORS

659A.030(b). To the extent that the trial court required

greater detail, those requirements were in error.

Reversed and remanded.