McClusky v. City of North Bend

No. 231 April 17, 2024 1

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Will McCLUSKY,

Plaintiff-Appellant,

v.

CITY OF NORTH BEND,

an Incorporated City of the State of Oregon,

Defendant-Respondent.

Coos County Circuit Court

18CV20329; A177073

Andrew E. Combs, Judge.

Argued and submitted April 10, 2023.

Quinn E. Kuranz argued the cause for appellant. Also on

the briefs was The Office of Q.E. Kuranz, AAL, LLC.

Tracy M. McGovern argued the cause for respondent.

Also on the brief were Travis A. Merritt and Frohnmayer,

Deatherage, Jamieson, Moore, Armosino & McGovern, P.C.

Before Ortega, Presiding Judge, Powers, Judge, and

Hellman, Judge.

ORTEGA, P. J.

Judgment of dismissal as to Claims 1 and 2 reversed and

remanded; otherwise affirmed.

2 McClusky v. City of North Bend

Cite as 332 Or App 1 (2024) 3

ORTEGA, P. J.

This case is before us for the second time on plain-

tiff’s appeal from a judgment dismissing his claims of

unlawful employment discrimination and whistleblowing.

Plaintiff assigns error to the trial court’s grant of summary

judgment for defendant City of North Bend as to all four of

his claims on various grounds.1 We conclude that the trial

court erred in granting summary judgment for defendant

as to Claim 1 (ORS 659A.030(1)(f)), because there is a genu-

ine issue of material fact as to whether plaintiff’s protected

activity was a substantial factor in defendant’s decision to

terminate his employment. We also conclude that the trial

court erred in granting summary judgment for defendant

as to Claim 2 (ORS 659A.199), because plaintiff’s conduct

constituted a “report” of an alleged violation of state law

within the meaning of ORS 659A.199 and there is a gen-

uine issue of material fact as to plaintiff’s subjective good

faith belief in making that report. We further conclude that,

on this record, defendant may be liable as plaintiff’s joint

employer under ORS 659A.199 and that the coemployer’s

alleged biased motive may be imputed to defendant under a

“cat’s paw” theory. Finally, we conclude that the trial court

did not err in granting summary judgment for defendant as

to Claim 3 (ORS 659A.203(1)(b)(A), (B)) and Claim 4 (ORS

659A.203(1)(d)), because plaintiff failed to produce evidence

that he reported illegal or other inappropriate conduct by

defendant North Bend. We therefore reverse the judgment of

dismissal as to Claims 1 and 2, remand for further proceed-

ings, and otherwise affirm.

1

Plaintiff raises three assignments of error, and only the first identifies the

precise legal ruling (the grant of summary judgment for defendant as to his first

claim) he challenges on appeal; the second and third identify various “holdings”

of the trial court in its summary judgment order, which we understand to chal-

lenge the court’s grant of summary judgment for defendant as to plaintiff’s sec-

ond, third, and fourth claims. ORAP 5.45(3) (“Each assignment of error must

identify precisely the legal, procedural, factual or other ruling that is being chal-

lenged.”); see, e.g., Marc Nelson Oil Products, Inc. v. Grim Logging Co., 199 Or App

73, 75 n 1, 110 P3d 120, adh’d to as modified on recons, 200 Or App 239, 115 P3d

935 (2005) (“Assignments of error * * * are to be directed against rulings by the

trial court, not against components of the trial court’s reasoning or analysis that

underlie that ruling.”).

4 McClusky v. City of North Bend

I. STANDARD OF REVIEW

The trial court must grant a motion for summary

judgment when

“the pleadings, depositions, affidavits, declarations and

admissions on file show that there is no genuine issue as

to any material fact and that the moving party is entitled

to prevail as a matter of law. * * * The adverse party has

the burden of producing evidence on any issue raised in

the motion as to which the adverse party would have the

burden of persuasion at trial.”

ORCP 47 C. No genuine issue of material fact exists when

“no objectively reasonable juror could return a verdict for the

adverse party on the matter that is the subject of the motion

for summary judgment.” Id. We review an order granting

summary judgment for errors of law, viewing the facts and

all reasonable inferences that may be drawn from them in

favor of the nonmoving party, who in this case is plaintiff.

Boyd v. Legacy Health, 318 Or App 87, 88-89, 507 P2d 715

(2022). We state the facts in accordance with that standard.

II. FACTS

We begin with the relevant undisputed facts recounted

in our prior opinion:

“[T]his litigation arises from North Bend’s administrative

involvement in plaintiff’s employment and termination as

Technology Systems Manager for the Coos County Library

Service District (CCLSD). The CCLSD is governed by

a Master Plan, which was approved by the Coos County

commissioners in 1992 and provides that each city retains

control of daily library operations and is responsible for

administering its own library services. The Master Plan

mandates that shared library services (catalogues, data-

bases, information technology services, outreach programs,

etc.) are administered by the CCLSD Extended Services

Office (ESO).

“To manage CCLSD activities, Coos County contracts

through an intergovernmental agreement with the City of

Coos Bay. Under that agreement, Coos Bay Public Library

houses the ESO and employs the ESO Director. The direc-

tor reports to the CCLSD Advisory Board, who is appointed

by the Coos County Board of Commissioners.

Cite as 332 Or App 1 (2024) 5

“In support of the CCLSD, the cities of Coos Bay and

North Bend entered into an intergovernmental agreement.

Under the terms of that agreement, North Bend agreed to

hire the CCLSD Technology [Systems] Manager and house

that position in the City of North Bend’s public library. The

City of Coos Bay reimbursed North Bend for 100 percent

of those costs (salary, benefits, and office overhead costs)

using the ESO budget.”

McClusky v. City of North Bend, 308 Or App 138, 139-40, 481

P3d 431 (2020), rev den, 368 Or 37 (2021) (McClusky I).

North Bend hired plaintiff as CCLSD Technology

Systems Manager in 2015. North Bend managers and human

resources representatives worked with CCLSD employ-

ees, including the ESO director, to evaluate and supervise

plaintiff. In April 2017, plaintiff received approval from the

CCLSD Advisory Board to purchase an email server with

budget funds. Minutes from that meeting also show that

Jennifer Croft was set to start as the CCLSD ESO director

later that month.

In June, Croft sent a memo to Coos County library

directors and plaintiff announcing her plan to migrate

CCLSD’s network to G Suite, a cloud-based service by Google

that provides email hosting, among other networking appli-

cations. The migration meant abandoning plaintiff’s plan

to purchase an in-house email server and contracting with

third parties to provide services on an ongoing basis. In

July, plaintiff attended an IT meeting with Croft, North

Bend Library Director Gary Sharp, North Bend Human

Resources (HR) Manager and City Recorder Rene Collins,

and another IT employee, who openly recorded the meeting.

During the meeting, plaintiff expressed concerns to Croft

about implementation of the G Suite migration and asked

Croft if she had sought the approval of the CCLSD Advisory

Board for the migration. Croft responded that she had called

the board chair and had sent out emails to inform the board

of her plan—which she maintained was within the scope of

her authority—but confirmed that “we did not have an offi-

cial meeting.” Plaintiff expressed his view that, “according

to the Master Plan and bylaws, this stuff is supposed to go

up to the board in an official meeting to be talked about and

approved before moving forward on it” and that Croft was

6 McClusky v. City of North Bend

“bypassing * * * the laws of the district.” Croft proceeded

with the plan to migrate to G Suite with an initial launch

on July 31.

In mid-August, what the parties refer to as “the

Big Book of IT incident” occurred. “The Big Book of IT” is

a binder that contains extensive information about CCLSD

computer network and IT infrastructure. Croft directed

plaintiff to turn over the Big Book of IT so that she could

give it to an outside contractor she had hired to perform

work on CCLSD systems in the following weeks while plain-

tiff was out of the office. Plaintiff was working onsite at the

Bandon library and initially agreed to drop off the book to

Croft when he returned to Coos Bay. Later that afternoon,

however, plaintiff sent a text message to Croft, informing

her that he would not be handing over the Big Book of IT

and that she would need to first seek approval from the

CCLSD Advisory Board. Plaintiff then contacted two library

directors to inform them of the risks of giving an outside

contractor the highest levels of access to CCLSD’s servers,

service accounts, and patron information. Croft and Collins,

the North Bend HR manager, together called plaintiff and

told him that, if he did not have the book on Croft’s desk by

6:00 p.m., he would face disciplinary action. Plaintiff com-

plied and then went on leave until September 5.

On August 25, plaintiff filed a complaint with the

Bureau of Labor and Industries (BOLI) alleging, among

other things, that he had complained to Sharp and other

library directors about a lack of policies for his position,

misappropriation of budget funds, and violations of record

retention rules, and that North Bend had retaliated against

him by changing his duties, taking control of the IT depart-

ment, and making changes without communicating them.

On August 29, Croft emailed Sharp her proposed

edits on plaintiff’s drafted employee performance review.

The draft review, dated September 5, meant to be signed by

Croft, Sharp, and plaintiff, included a “Work Improvement

Plan” in which plaintiff’s work would be “closely monitored”

for 90 days and required him to demonstrate “immediate

and sustained improvement” in specific areas.

Cite as 332 Or App 1 (2024) 7

On September 1, North Bend received a copy of

plaintiff’s August 25 BOLI complaint. That same day, North

Bend also received a letter from an attorney on behalf of

plaintiff providing notice of his BOLI complaint and warn-

ing that “any further action taken against [plaintiff would]

be considered as retaliation for his legitimate complaints”

constituting whistleblowing, even if the BOLI complaint

was ultimately deemed unfounded.

When plaintiff returned to work on September 5,

he received a “Notice of Potential Termination” signed by

North Bend City Administrator Terrence O’Connor, Croft,

and Sharp. The notice stated that plaintiff’s conduct sur-

rounding the Big Book of IT incident “violates the City of

North Bend employment policies and falls well below the

expectations that we have for the IT Manager position.”

Plaintiff submitted a written response, outlining his version

of the events surrounding the Big Book of IT incident.

Croft recommended that North Bend terminate

plaintiff, and, on September 6, O’Connor issued a “Notice

of Termination” on North Bend letterhead, in which he

explained that plaintiff had failed to show that he under-

stood how his conduct was improper or provide a reason to

believe that he would be able to improve his performance or

his strained work relationships. O’Connor verbally informed

plaintiff that, because of his BOLI complaint and attorney

letter, O’Connor could see that plaintiff was not interested

in repairing his work relationships and was only interested

in monetary gain.

Plaintiff asserted four claims against defendant

North Bend: discrimination under ORS 659A.030(1)(f)

(Claim 1), whistleblowing under ORS 659A.199 (Claim 2),

and public employee whistleblowing under ORS 659A.203

(1)(b)(A), (B) (Claim 3) and ORS 659A.203(1)(d) (Claim 4).

The trial court granted defendant’s motion for summary

judgment after it concluded that defendant was not plain-

tiff’s “employer.” In McClusky I, we held that, “as a matter of

law, North Bend reserved the right to control plaintiff and

was his employer for purposes of ORS chapter 659A.” 308

Or App at 145. On remand, defendant again moved for sum-

mary judgment on various grounds. The trial court granted

8 McClusky v. City of North Bend

summary judgment in favor of defendant on all four claims

and entered a general judgment of dismissal. This appeal

followed.

III. ANALYSIS

A. Claim 1: Discrimination - ORS 659A.030(1)(f)

Plaintiff’s first claim alleges a violation of ORS

659A.030(1)(f), which provides that “[i]t is an unlawful

employment practice * * * [f]or any person to discharge,

expel or otherwise discriminate against any other person

because that other person has opposed any unlawful prac-

tice, or because that other person has filed a complaint

* * *.” In granting summary judgment for defendant on that

claim, the trial court found that plaintiff’s “discharge was

the result of his insubordination and unprofessional conduct

surrounding the Big Book of IT incident.” The court there-

fore concluded that “no objectively reasonable juror could

return a verdict for plaintiff on this claim.”2

On appeal, plaintiff argues that the trial court

erred in granting summary judgment for defendant on this

claim because there is a genuine issue of material fact as to

causation between his protected activity and termination.

Plaintiff points to the evidence that, as of August 29, North

Bend’s plan was for plaintiff to return to work under a “Work

Improvement Plan,” that North Bend terminated plaintiff

five days after receiving his BOLI complaint and attorney

letter, and that O’Connor told plaintiff that his BOLI com-

plaint and attorney letter demonstrated that plaintiff was

not interested in repairing his working relationships.

We agree with plaintiff that there is a genuine issue

of material fact as to whether his protected activity was a

substantial factor in North Bend’s decision to terminate

2

The trial court further found that CCLSD and defendant were plaintiff’s

joint employers but that, to the extent that this claim alleges that North Bend

should be held liable for any unlawful acts by CCLSD, “North Bend did not know

and should not have known about any such unlawful acts.” We do not understand

plaintiff to advance a theory as to this claim that defendant should be jointly

liable for CCLSD’s conduct. Rather, we understand his theory for this claim to be

that defendant is directly liable for O’Connor’s conduct as defendant’s agent. We

therefore do not address defendant’s argument regarding joint employer liability

as to this claim.

Cite as 332 Or App 1 (2024) 9

his employment and that the trial court erred in granting

summary judgment for defendant on that basis. “Proof of a

causal connection between protected conduct and a materi-

ally adverse action can be established (1) indirectly, by show-

ing that the protected activity was followed closely by dis-

criminatory treatment * * * or (2) directly, through evidence

of retaliatory animus directed against a plaintiff by the

defendant.” Meyer v. Oregon Lottery, 292 Or App 647, 681-82,

426 P3d 89 (2018) (emphases in original; internal quotation

marks and citation omitted). “Oregon case law has not iden-

tified how ‘very close’ in time the discriminatory treatment

must follow the protected activity such that, by itself, the

timing raises an issue of fact regarding causation.” Id. at

682. But we have concluded that less than one month was

sufficient to establish causation. Medina v. State of Oregon,

278 Or App 579, 589-90, 377 P3d 626 (2016) (concluding that

a reasonable trier of fact could infer from the timing of the

disciplinary actions that they were the result of the plain-

tiff’s complaint).

Here, plaintiff produced indirect evidence of a

causal connection between his protected conduct and his

termination by showing that he was terminated five days

after North Bend received his BOLI complaint and attorney

letter. Plaintiff also produced direct evidence of a causal con-

nection between his protected conduct and his termination

by showing a retaliatory animus directed against plaintiff

by defendant: that O’Connor told him that the BOLI com-

plaint and attorney letter demonstrated that plaintiff was

not interested in repairing his working relationships, which

is one basis the Notice of Termination stated for terminat-

ing him.

In urging a different result, defendant first argues

that plaintiff’s activity was not protected by ORS 659A.030

because his BOLI complaint was not made in good faith.

However, defendant did not make that argument to the trial

court as a basis for granting summary judgment. We there-

fore do not address that argument further.

Defendant next argues that plaintiff failed to

establish causation because he conceded that he was fired

for the Big Book of IT incident. But we understand plaintiff

10 McClusky v. City of North Bend

to have conceded that the Big Book of IT incident is what

led Croft to recommend that defendant terminate plain-

tiff. The summary judgment record, however, reflects that

O’Connor made the ultimate decision to terminate plaintiff.

And whether plaintiff’s BOLI complaint and attorney letter

were a substantial factor in that decision is a factual ques-

tion for the jury for the reasons explained above. Plaintiff’s

concession has no bearing on that conclusion. Thus, the trial

court erred in granting summary judgment to defendant on

Claim 1.

B. Claim 2: Whistleblowing - ORS 659A.199

Plaintiff’s second claim alleges a violation of ORS

659A.199(1), which provides that

“[i]t is an unlawful employment practice for an employer to

discharge, demote, suspend or in any manner discriminate

or retaliate against an employee * * * for the reason that

the employee has in good faith reported information that

the employee believes is evidence of a violation of a state or

federal law, rule or regulation.”

The trial court granted summary judgment for

defendant on that claim for four independent reasons:

1) plaintiff failed to produce evidence that he ever made a

“report” of a violation; 2) plaintiff’s “report” concerned vio-

lation of CCLSD’s Master Plan and bylaws, which are not

“state or federal law, rule[s] or regulation[s]”; 3) plaintiff’s

“report” was not made “in good faith”; and 4) North Bend

should not be held liable for any unlawful acts by CCLSD

because “North Bend did not know and should not have

known about any such unlawful acts” and because an

imputed motive or “cat’s paw” theory did not apply, given

that the allegedly biased employee (Croft) was not subordi-

nate to the decision maker (O’Connor) or employed by the

same entity.

On appeal, plaintiff argues that the trial court

erred in granting summary judgment for defendant on his

second claim because there is a genuine issue of fact that he

in good faith reported violations of state law to Croft, specif-

ically, that plaintiff told Croft that her admission that she

decided to migrate to G Suite without first seeking approval

Cite as 332 Or App 1 (2024) 11

from the Advisory Board in an official meeting violated pub-

lic meetings law. See ORS 192.610 - 192.705. Plaintiff also

argues that the trial court erred in granting summary judg-

ment for defendant on this claim because defendant may

be liable for Croft’s conduct under three alternative theo-

ries: defendant and CCLSD were plaintiff’s joint employers,

Croft’s discriminatory motive may be imputed to defendant

under the “cat’s paw” doctrine, and North Bend aided and

abetted Croft’s unlawful discriminatory motive.

We conclude that plaintiff’s conduct constituted a

“report” of a violation of state law within the meaning of ORS

659A.199 and that there is a genuine issue of material fact

as to plaintiff’s subjective good faith belief in making that

report. We further conclude that, on this record, defendant

may be liable for Croft’s conduct under a joint employer or

an imputed motive theory. We reject without further discus-

sion plaintiff’s argument that aiding and abetting is a via-

ble theory on this record because, as he concedes, he failed

to plead that theory of liability. See ORS 659A.030(1)(g)

(“It is an unlawful employment practice * * * [f]or any per-

son, whether an employer or an employee, to aid, abet, incite,

compel or coerce the doing of any of the acts forbidden under

this chapter or to attempt to do so.”). The trial court there-

fore erred in granting summary judgment for defendant on

this claim.

We begin with whether plaintiff’s conduct consti-

tuted a “report” of a violation. Our decision in Bjurstrom

v. Oregon Lottery, 202 Or App 162, 120 P3d 1235 (2005), is

instructive. There, we construed the term “disclosure” in the

public employee whistleblowing statute, ORS 659A.203(1)(b),

to determine whether it protected disclosure within the

agency or department, as opposed to the popular conception

of a “whistleblower” as one who discloses internal miscon-

duct to an external entity. We first noted that the common

meaning of “disclose” is “to make known” or to “open up to

general knowledge.” Id. at 169 (quoting Webster’s Third New

Int’l Dictionary 645 (unabridged ed 2002)). We then observed

that the statute protects disclosure “without limitation” and

that statutory context “contemplated the possibility of retal-

iation against employees who voiced their complaints either

12 McClusky v. City of North Bend

within the agency or department, or to others outside.”

Id. After reviewing legislative history that confirmed our

understanding of the text and context, we concluded that

“disclosures” under ORS 659A.203(1)(b) “include reports of

wrongdoing within an agency or department.” Id. at 171.

Applying that construction to the plaintiff’s conduct in that

case, we held that instances where the plaintiff “voiced his

opinions” about mismanagement and personnel issues in

the workplace “to his coworkers and supervisors” were “dis-

closures” but ultimately were not protected whistleblowing

activity because none concerned “mismanagement.” Id. at

171-75.3

In Folz v. ODOT, 287 Or App 667, 404 P3d 1036

(2017), rev den, 362 Or 482 (2018), we applied Bjurstrom’s

understanding of “disclosures” and extended it to “reports”

within the meaning of ORS 659A.199.4 In Folz, the plain-

tiff was a human resources manager who supervised and

advised regional human resources managers. Id. at 669.

We concluded that the plaintiff’s conduct of “expressing her

concerns regarding the propriety of” and “proceeding with”

a proposed plan to discipline an employee to other human

resources decision makers was neither a “report” nor a “dis-

closure” protected by the whistleblowing statutes. Id. at

669-74. We reasoned that “the most she ha[d] established is

that she gave advice about an evolving personnel matter as

part of her day-to-day responsibilities as a human resources

professional and that she expressed those opinions to other

participants in that decision-making process as part of that

process.” Id. at 675 (emphasis in original). We emphasized

that, “[a]t the time of those discussions, no decision had been

reached as to how the situation would be handled; that was

the point of involving plaintiff in the discussions.” Id. at 674.

3

We also rejected the plaintiff’s “occasional general references” that his dis-

closures concerned the defendant’s violation of “rules” because he did “not identify

with any particularity what statements he is referring to or what rules [defen-

dant] supposedly violated” or “develop any argument on that subject.” Id. at 173.

4

Although we did not separately construe the term “report[ ]” in ORS

659A.199, which was enacted after our decision in Bjurstrom, see Or Laws 2009,

ch 524, § 2, we understand that term to be a synonym for “disclosure,” given

that Bjurstrom construed “disclosure” to be a “report” and the plain meaning of

“report” is synonymous with “disclosure.” See Webster’s at 1925 (defining the verb

“report” as “to give an account of : narrate, relate, tell”).

Cite as 332 Or App 1 (2024) 13

Returning to the facts of this case, we conclude that

plaintiff “reported” wrongdoing within CCLSD for purposes

of ORS 659A.199. At the July 2017 IT meeting, which was

attended by two of his supervisors as well as another IT

employee, plaintiff voiced his opinion that Croft had violated

the CCLSD Master Plan and bylaws by failing to seek and

gain the Advisory Board’s approval at an official public meet-

ing to migrate to G Suite. Although plaintiff also expressed

concerns with the propriety of the G Suite migration and

proceeding with that plan as part of the process of advising

Croft on its implementation, he expressed additional con-

cerns that Croft had made that decision in violation of the

CCLSD Master Plan and bylaws. Thus, while the purpose

of the IT meeting was to involve plaintiff in the discussion

about implementing the G Suite migration, and plaintiff

expressed his opinion about the merits of the decision itself

and did so as part of his day-to-day responsibilities as an

IT Manager, unlike in Folz, plaintiff also expressed concern

that Croft had failed to follow the necessary procedure to

make that decision in the first place—a decision that was

already final and did not involve plaintiff. Further, although

it was part of plaintiff’s job duties to advise Croft on IT mat-

ters, it was not part of his job duties to advise Croft on her

compliance with the CCLSD Master Plan or bylaws, a point

that Croft immediately conveyed in response to his report,

by retorting, “And I’m telling you that you’re an IT man-

ager.” In sum, this case is distinguishable from Folz because

the alleged violation had already occurred, it concerned a

matter that was outside the scope of plaintiff’s day-to-day

responsibilities as IT Manager, and plaintiff did not voice

his opinion about the alleged violation to his supervisors

and coworkers as part of the decision-making process.

We next turn to whether plaintiff “in good faith

reported information that the employee believes is a viola-

tion of a state * * * law.” “ORS 659A.199 applies a subjective,

good faith standard to employees who report perceived viola-

tions of the law.” Boyd, 318 Or App at 98 (emphasis added);

see also Hall v. State of Oregon, 274 Or App 445, 453, 366

P3d 345 (2015) (explaining that ORS 659A.199’s express

“[r]eference to the employee’s belief indicates a subjective,

good faith standard”). Thus, “an employee has engaged in

14 McClusky v. City of North Bend

protected activity under that provision if the employee has

reported information that [they] subjectively believe[ ] is a

violation of a state or federal law, rule, or regulation and

has a good faith basis for that belief.” Boyd, 318 Or App at

98-99. We look to what the employee knew at the time of the

report, and it is irrelevant whether hindsight proves that a

violation of law in fact occurred. Hall, 274 Or App at 454-55.

Whether an employee held a subjective good faith

belief regarding a violation of law at the time of the report

is a question of fact. Id. (“[W]e conclude that plaintiff pre-

sented evidence to create a genuine issue of material fact

that he acted with subjective, good faith for purposes of

ORS 659A.199.”); Boyd, 318 Or App at 98-99 (applying that

standard). In Boyd, the plaintiff reported a nurse’s chart-

ing errors to his manager. 318 Or App at 98. On appeal,

the defendant argued that that report amounted only to a

general complaint regarding the nurse’s performance and

not a “good faith report[ of] information that the employee

believe[d was] evidence of a violation of a state or federal law,

rule or regulation.” Id. The plaintiff identified several state

administrative rules establishing nursing standards that

the nurse’s charting errors might violate, and the defendant

did not dispute that charting errors would fall short of nurs-

ing standards established in those administrative rules.

Id. at 99. We therefore concluded that the plaintiff’s testi-

mony that he had found inaccurate entries in a patient’s

chart made by the other nurse was sufficient for a factfinder

to reasonably conclude that the plaintiff had subjectively

believed that the nurse’s performance violated state admin-

istrative rules and that he had a good faith basis in fact

and law for that belief, even if it were to ultimately prove

untrue. Id. In other words, a plaintiff’s report need not iden-

tify the specific provisions of law that have been violated,

but rather articulate facts that may constitute a violation of

law. Cf. Walker v. Oregon Travel Information Council, 367 Or

761, 783, 484 P3d 1035 (2021) (explaining that under ORS

659A.203(1) a plaintiff “must set forth facts that would sup-

port an objectively reasonable belief that a violation [of law]

has occurred,” a court makes a “threshold determination

that there is a substantial nexus between the complained-of

conduct and a law or public policy identified by the court or

Cite as 332 Or App 1 (2024) 15

the plaintiff,” and “the jury then must determine whether

the plaintiff actually held such a belief and, if so, whether

that belief was objectively reasonable” (internal quotation

marks, citation, and emphasis omitted)).

Here, we conclude that plaintiff produced evidence

sufficient to create a genuine issue of material fact as to

whether he subjectively believed that Croft violated state

law at the time of his report and that he had a good faith

basis in fact and law for that belief. Plaintiff reported to

Croft that she had violated the CCLSD Master Plan and

bylaws by contracting with a third party to migrate to G

Suite without first seeking and gaining approval from the

Advisory Board. The CCLSD Master Plan provides that the

Advisory Board has the duty to “[d]etermine and evaluate

those shared countywide cooperative services, which are con-

tracted, and the budget for those services,” and to “[r]eview

contracts for ESO services and recommend approving,

denying or changing the contract to the appropriate sign-

ing authority.” The Master Plan further provides that

“[c]ountywide services” include “[p]rovision of all district-

wide information technology services and maintenance.”

And the CCLSD Advisory Board’s bylaws expressly provide

that “[a]ll Board meetings shall be held in compliance with

the Oregon Public Meeting Law as set out in the Oregon

Revised Statutes.” See ORS 192.610 - 192.705. Those stat-

utes reflect state policy that “[t]he Oregon form of govern-

ment requires an informed public aware of the deliberations

and decisions of governing bodies and the information upon

which such decisions were made” and express the legisla-

ture’s “intent * * * that decisions of governing bodies be

arrived at openly,” ORS 192.620, by requiring, among other

things, that “[a]ll meetings” of a “governing body of a public

body” be open to the public, and by prohibiting a “quorum of

a governing body” from “meet[ing] in private for the purpose

of deciding on or deliberating toward a decision on any mat-

ter,” ORS 192.630. See also ORS 192.610 (defining terms,

including “decision,” “deliberation,” “governing body,” “pub-

lic body,” and “meeting”). From that evidence, a reasonable

factfinder could find that plaintiff believed that the Master

Plan and bylaws required Croft to seek approval from the

Advisory Board to contract with a third party to migrate to

16 McClusky v. City of North Bend

G Suite and to do so at a public meeting that complied with

Oregon Public Meeting Law, and that plaintiff believed that

Croft had reached the decision to migrate to G Suite by cir-

cumventing those legal requirements.

Defendant does not directly respond to plaintiff’s

contention that he believed that Croft violated public meeting

law. Instead, defendant argues that plaintiff could not have

had a good faith, subjective belief of an alleged violation of

law at the time of the report because alleged violations of the

CCLSD Master Plan and bylaws “involv[e] internal admin-

istrative matters” and therefore do not constitute “state or

federal law, rule[s] or regulation[s].” We are unpersuaded.

The CCLSD Master Plan was adopted by the Coos County

Board of Commissioners and expressly delegates “limited

and defined powers” to the appointed Advisory Board. The

Advisory Board is governed by the CCLSD bylaws, which

expressly mandate that board meetings comply with state

law. We therefore reject defendant’s contention that plaintiff

could have only believed that he was reporting an alleged

violation of mere internal administrative matters.

Finally, we turn to whether defendant may be lia-

ble under ORS 659A.199 for Croft’s conduct under a joint

employer or an imputed motive theory. It is undisputed that

plaintiff named only North Bend as a defendant and does

not allege that he reported a violation of law by defendant or

one of defendant’s agents. In defendant’s view, that is fatal

to plaintiff’s claim under ORS 659A.199.

As an initial matter, ORS 659A.199 is not limited to

reported violations about the employer. “By its terms, [ORS

659A.199] protects good faith reports of any illegal activity

and does not require that the reported activity be attrib-

utable to the employer.” Burley v. Clackamas County, 298

Or App 462, 468, 446 P3d 564, rev den, 365 Or 721 (2019)

(emphasis in original). However, ORS 659A.199 does require

that the employer’s adverse employment action be taken

“because” of or “for the reason that” the employee reported a

violation of law. Ossanna v. Nike, Inc., 290 Or App 16, 26-27,

415 P3d 55 (2018), aff’d, 365 Or 196, 445 P3d 281 (2019).

Here, it is also undisputed that defendant’s agent, O’Connor,

was the ultimate decisionmaker with regard to plaintiff’s

Cite as 332 Or App 1 (2024) 17

termination and that Croft recommended that O’Connor

terminate plaintiff. Thus, the question becomes whether

defendant may be liable for terminating plaintiff “for the

reason that” he reported an alleged violation of law by Croft

and, by extension, CCLSD.

The trial court observed that “Oregon law has yet

to address joint employer liability” and therefore looked to

federal law under Supreme Court guidance. See Ossanna v.

Nike, Inc., 365 Or 196, 204-05, 445 P3d 281 (2019) (“Although

federal precedent has no binding authority on this court’s

interpretation of state law, this court has looked to Title VII

precedent for guidance in analyzing claims brought under

analogous provisions of ORS chapter 659A.”). The court

applied the federal common-law agency test adopted by the

Ninth Circuit in EEOC v. Global Horizons, Inc., 915 F3d 631

(9th Cir 2019), and found that CCLSD and defendant were

plaintiff’s joint employers but concluded that defendant was

not jointly liable for CCLSD’s alleged discriminatory conduct

because defendant did not know and should not have known

about any such unlawful acts. See id. at 641 (“Liability may

be imposed for a co-employer’s discriminatory conduct only

if the defendant employer knew or should have known about

the other employer’s conduct and failed to undertake prompt

corrective measures within its control.” (Internal quotation

marks and citation omitted.)).

Plaintiff contends that defendant may be liable for

Croft’s alleged biased recommendation because CCLSD

(Croft’s employer) and defendant are his joint employers and

because he produced evidence to create a genuine issue of

material fact that defendant knew or should have known

about Croft’s alleged bias—that is, that Croft recommended

that defendant terminate plaintiff at least in part because

plaintiff reported that she allegedly violated the law.

Defendant first responds by challenging the trial court’s

finding that defendant and CCLSD were plaintiff’s joint

employers. Defendant argues that it cannot be held liable as

defendant’s joint employer because CCLSD, not defendant,

exercised the right to control plaintiff’s day-to-day activities.

We reject defendant’s argument. In McClusky I, we

explained that ORS 659A.001(4)(a)’s definition of “employer”

18 McClusky v. City of North Bend

as “any person who in this state, directly or through an

agent, engages or uses the personal service of one or more

employees, reserving the right to control the means by which

such service is or will be performed” reflects the under-

standing of the “right to control” that “appears in various

contexts throughout Oregon law” and that was reflected in

case law at the time its predecessor statute was enacted in

1969. 308 Or App at 142. We rejected North Bend’s “meth-

odological approach” that “frames the right to control as a

zero-sum game: there is only ever one employer, and any-

one else is, at best, an agent” as “incorrect.” Id. at 143. We

further observed that “[t]he proposition that more than one

employer can possess a right to control an employee is well-

established.” Id. at 144 (citing Restatement of Employment

Law § 1.04(b) (2015) (“An individual is an employee of two

or more joint employers if (i) the individual renders services

to at least one of the employers and (ii) that employer and

the other joint employers each control or supervise such ren-

dering of services as provided in § 1.01(a)(3).”)). Although

we ultimately did not decide whether CCLSD was plain-

tiff’s employer, we expressly held that, “as a matter of law,

North Bend reserved the right to control plaintiff and was

his employer for purposes of ORS chapter 659A.” Id. at 145.

In reaching that conclusion, we squarely rejected the argu-

ment that defendant again raises here. Id. at 144 (“[E]ven if

we were to assume arguendo that CCLSD possessed a right

to control plaintiff, and even if CCLSD actually exercised

control over plaintiff, neither point forecloses that North

Bend also retained a right to control him.”).

If defendant is shielded from liability under a joint

employer theory as a matter of law, it could only be on the

grounds that CCLSD is not plaintiff’s joint employer. But

defendant conceded that point in its answer. And, in any

event, the evidence in the summary judgment record shows

that CCLSD reserved the right to control plaintiff (and

actually exercised control over him): the CCLSD Technology

Systems Manager position description provides that “day to

day supervision” “is provided by the Director of the North

Bend Public Library in cooperation with the Director of

CCLSD Extended Services” and that “[t]he CCLSD Director

of Extended Services provides general supervision for this

Cite as 332 Or App 1 (2024) 19

position and provides input to the yearly evaluation” and

“coordinates the scheduling of this position.” We therefore

conclude that CCLSD and defendant were plaintiff’s joint

employers as a matter of law.

Under federal law, “even if a joint-employment rela-

tionship exists, one joint employer is not automatically lia-

ble for the actions of the other.” Global Horizons, Inc., 915

F3d at 641. We agree with the Ninth Circuit that “[l]iability

may be imposed for a co-employer’s discriminatory conduct

only if the defendant employer knew or should have known

about the other employer’s conduct and failed to undertake

prompt corrective measures within its control.” Id. (internal

quotation marks and citation omitted). In Global Horizons,

Inc., the Equal Employment Opportunity Commission

brought discrimination charges against fruit growers and

a labor contractor under Title VII of the Civil Rights Act of

1964 alleging, among other things, that the fruit growers

and labor contractor subjected Thai workers to poor work-

ing conditions, substandard living conditions, and unsafe

transportation on the basis of their race and national origin.

Id. at 633. After concluding that the EEOC had plausibly

alleged that the fruit growers and the labor contractor were

joint employers of the Thai workers, the Ninth Circuit con-

cluded that the allegation that the Thai workers had com-

plained directly to one fruit grower about their substandard

working conditions gave rise to a plausible inference that

the fruit grower knew or should have known about the labor

contractor’s discriminatory conduct. Id. at 641. And because

the allegations established that the fruit grower had ulti-

mate control over those working conditions, they could have

taken corrective action but failed to do so. Id. at 641-42.

Here, plaintiff produced evidence that defendant’s

agent, North Bend HR Manager Collins, was present at

the July 2017 IT meeting and participated in the discus-

sion in which plaintiff reported Croft’s alleged violation

of law. Plaintiff also produced evidence that Croft worked

closely with defendant’s management team (Collins, Sharp,

and O’Connor) to provide day to day supervision to plaintiff

and to discuss plaintiff’s termination, including that Croft

made the initial decision with Sharp to pursue plaintiff’s

20 McClusky v. City of North Bend

termination. Finally, the draft Work Improvement Plan cre-

ated by Sharp and edited by Croft specifically notes that

plaintiff “has a tendency to incorrectly assume the worst

about his colleagues, which often leads him to improperly

accuse them of wrongdoing,” and “[a]s a result, many of his

professional relationships have become strained.” We there-

fore conclude that plaintiff has produced evidence sufficient

to create a genuine issue of fact that defendant knew or

should have known about Croft’s (and by extension CCLSD’s)

alleged bias due to plaintiff’s report of Croft’s violation of

law, that defendant could have but failed to take corrective

action (for example, by not including Croft in the decision to

terminate plaintiff), and that Croft’s allegedly biased rec-

ommendation to terminate plaintiff was a substantial factor

in O’Connor’s decision to terminate him.

We next address whether defendant may be liable

under a “cat’s paw” or imputed motive theory, that is, whether

Croft’s alleged bias may be considered a cause of plaintiff’s

termination because Croft recommended that defendant ter-

minate plaintiff. The trial court concluded that the imputed

motive theory did not apply to this case because Croft was

not a subordinate to the decision-maker, O’Connor, and was

not employed by defendant.

“[I]n Oregon statutory employment discrimination and

retaliation cases, a plaintiff may assert the ‘cat’s paw’ the-

ory to impute the bias of a supervisor who lacks decision-

making authority to the employer’s manager and ultimate

decision-maker, if the plaintiff can point to evidence that

the non-decision-maker influenced or was involved in the

adverse employment decision.”

Ossanna, 365 Or at 209. In Ossanna, the court did “not pre-

scribe a particular level of control that a biased employee * * *

must exert over the employment decision * * * before allowing

the bias to be imputed to the decision-maker.” Id. The court

adopted such a “practical” approach given “a workplace real-

ity” that “[t]he employment setting often consists of multiple

layers of networks and relationships; organizational models

often do not reflect a simple vertical chain of command; and

bias can enter the decision-making process through formal

or less formal channels.” Id. at 210. We have since held that

the cat’s paw theory is applicable when a coworker, rather

Cite as 332 Or App 1 (2024) 21

than a supervisor, is the alleged biased employee. Crosbie

v. Asante, 322 Or App 250, 259, 519 P3d 551 (2022), rev den,

370 Or 827 (2023) (“[T]he propriety of a cat’s paw instruction

hinges on whether a biased employee held influence over the

adverse employment decision—either because the employee

was authorized by job duty to do so or because the employer

negligently allowed such usurpation.”).

Given the practical approach the Ossanna court

adopted and our distillation in Crosbie of the core principle

for when a cat’s paw theory applies, we see no reason why it

should not apply when a supervisor for a joint employer is the

allegedly biased employee, so long as the plaintiff produces

evidence that the allegedly biased employee held influence

over the adverse employment decision. Here, the undisputed

evidence is that plaintiff’s supervisor, Croft, held influence

over plaintiff’s other supervisor and ultimate decision-

maker, O’Connor, in his decision to terminate plaintiff. We

therefore conclude that Croft’s motive may be imputed to

defendant, and that there is a genuine issue of material fact

whether Croft’s recommendation was a substantial factor in

his termination.

C. Claims 3 and 4: Public Employer Whistleblowing - ORS

659A.203(1)(b)(A), (1)(b)(B), and (1)(d)

Plaintiff’s third and fourth claims allege violations

of ORS 659A.203(1), which provides, in relevant part:

“[I]t is an unlawful employment practice for any public

or nonprofit 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 rea-

sonably believes is evidence of:

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

or regulation by the public or nonprofit employer;

“(B) Mismanagement, gross waste of funds or abuse

of authority or substantial and specific danger to public

health and safety resulting from action of the public or non-

profit employer; [or]

22 McClusky v. City of North Bend

“* * * * *

“(d) Discourage, restrain, dissuade, coerce, prevent or

otherwise interfere with disclosure or discussions described

in this section.”

The trial court granted summary judgment for

defendant on plaintiff’s third claim under ORS 659A.203

(1)(b)(A) and (B) on several grounds, only one of which we

need address, as it is dispositive: that plaintiff failed to pro-

duce evidence to create an issue of fact that it was objectively

reasonable for him to believe that North Bend was violat-

ing any federal or state law, rule or regulation. Given that

plaintiff failed to establish objective reasonableness as to his

third claim, the trial court granted summary judgment for

defendant on plaintiff’s fourth claim under ORS 659A.203

(1)(d), because he failed to produce evidence that North Bend

“discouraged, restrained, dissuaded, coerced, prevented or

otherwise interfered” with plaintiff’s disclosure or discussion

of the matters described in ORS 659A.203(1)(b)(A) or (B).

On appeal, plaintiff argues that the definition of

“public employer,” ORS 659A.200(6), does not limit the report

in ORS 659A.203(1)(b) specifically to the plaintiff’s employer

who takes the adverse action, but rather includes reports of

violations of illegal and other inappropriate conduct occur-

ring at “any agency of or political subdivision of the state.”

Plaintiff contends that the phrase “the public employer” in

ORS 659A.203(1)(b)(A) and (B) “is not referring to the plain-

tiff’s employer” who took the alleged adverse employment

action, but to “a public employer about which the protected

individual complains” and that ORS 659A.203(1) therefore

“applies to public employees who complain about perceived

violations of law by any agency or political subdivision of the

state.”

To resolve this question, we turn to our familiar

methodology of statutory construction to discern the legis-

lature’s intent. State v. Gaines, 346 Or 160, 171-72, 206 P3d

1042 (2009) (explaining that the “paramount goal” of statu-

tory interpretation is “discerning the legislature’s intent”).

In doing so here, we begin and end with the text and context

Cite as 332 Or App 1 (2024) 23

of the provision. Id. (holding that text and context “must be

given primary weight in the analysis”).5

As noted, ORS 659A.203(1)(b) prohibits “any pub-

lic or nonprofit employer” from taking disciplinary action

against an employee for disclosing “any information that

the employee reasonably believes is evidence of [a] violation

of any federal, state or local law, rule or regulation by the

public or nonprofit employer” or “[m]ismanagement, gross

waste of funds or abuse of authority or substantial and spe-

cific danger to public health and safety resulting from action

of the public or nonprofit employer.” (Emphases added.) The

statute uses the definite article “the” in referring to “the

public or nonprofit employer” whose conduct is the subject of

the reported violation or inappropriate conduct. “The defi-

nite article ‘the’ often signifies a narrowing intent, a ref-

erence to something specific, either known to the reader

or listener or uniquely specified.” Hill v. Johnson, 371 Or

494, 502, 538 P3d 204 (2023) (internal quotation marks and

citation omitted). “A referent may be identifiable because it

was previously introduced.” Id. Here, the identifiable refer-

ent that was previously introduced is the public or nonprofit

employer who takes the adverse employment action.

The context also supports our reading. In compar-

ing the protections afforded by the various whistleblowing

statutes in ORS chapter 659A, we have explained that ORS

659A.203(1)(b) “applies strictly to public employers,” Burley,

298 Or App at 468, and that “the legislature intended that

the ‘threshold’ for the generality of public employee whistle-

blower claims be different, and more demanding” than other

causes of action, including under the common law, Love v.

Polk County Fire District, 209 Or App 474, 492, 149 P3d

199 (2006). Just as the legislature knows how to employ a

less demanding subjective good faith belief standard, as it

did in ORS 659A.199, it also knows how to employ broader

5

The parties have not pointed us to any pertinent legislative history, and we

have not independently sought such legislative history, as it is unnecessary for us

to do so in light of the text of ORS 659A.203(1)(b) and its context. ORS 174.020(3)

(“A court may limit its consideration of legislative history to the information that

the parties provide to the court.”); see also Baldwin v. Seida, 297 Or App 67, 76,

441 P3d 720, rev den, 365 Or 769 (2019) (“We need not exercise our discretion to

seek legislative history, particularly when unnecessary.”).

24 McClusky v. City of North Bend

language with regard to the subject of the reported illegal

or inappropriate conduct, as it also did in ORS 659A.199. As

we observed in Burley, ORS 659A.199 reflects the legisla-

ture’s intent “both to provide protections against retaliation

to the employees of private employers” who are not covered

by ORS 659A.203, and “to supply additional protections to

employees of public employers” by allowing for another cause

of action to be available for a broader range of protected con-

duct than afforded by ORS 659A.203. 298 Or App at 468.

We therefore reject plaintiff’s contention that ORS

659A.203 applies to reports of alleged violations or inappro-

priate conduct by any public or nonprofit employer; by its

terms, ORS 659A.203(1)(b) expressly applies only to reports

of illegal and other inappropriate conduct by the public

or nonprofit employer who takes the adverse employment

action.

Returning to this case, we conclude that the trial

court correctly granted summary judgment on Claims 3 and 4.

As to Claim 3, plaintiff failed to produce evidence that he

reported illegal or other inappropriate conduct by defen-

dant North Bend—the employer that plaintiff alleges took

the adverse employment action in terminating him. Rather,

plaintiff’s theory and evidence as to these claims focus on

reports of illegal and other inappropriate conduct only by

Croft, who was an agent of CCLSD, and plaintiff does not

identify any adverse employment action taken by CCLSD.6

As to Claim 4, because he failed to establish a violation of

ORS 659A.203(1)(b)(A) or (B) in his third claim, plaintiff nec-

essarily failed to establish that defendant “[d]iscourage[d],

restrain[ed], dissuade[d], coerce[d], prevent[ed] or otherwise

interfere[d] with disclosures or discussions described in this

section.” The trial court did not err in granting summary

judgment for defendant on these claims.

Judgment of dismissal as to Claims 1 and 2 reversed

and remanded; otherwise affirmed.

6

We do not understand plaintiff to assert as a basis for these claims that

Croft’s recommendation that defendant terminate plaintiff is an adverse employ-

ment decision protected by ORS 659A.203. Plaintiff rather focuses on defendant’s

decision to terminate him. We therefore do not address it.