Summerfield v. OLCC ( 2020 )

763
Argued and submitted September 19, 2019, decision of Court of Appeals and
judgment of trial court affirmed August 28, 2020
Gene SUMMERFIELD,
Petitioner on Review,
v.
OREGON LIQUOR CONTROL COMMISSION,
Respondent on Review.
(CC CV12100185) (CA A157108) (SC S066377)
472 P3d 231
Plaintiff filed a complaint alleging, among other things, that defendant,
his former employer, violated statutes that (1) required defendant to reemploy
him after a work injury, ORS 659A.046, (2) prohibited defendant from retaliat-
ing against him for opposing or reporting racial discrimination or harassment,
ORS 659A.030(1)(f), and (3) prohibited defendant from retaliating against him
for “whistleblowing,” that is, making a good faith report of what he believed was
a violation of law, ORS 659A.199. The trial court granted defendant’s motion for
a directed verdict on plaintiff’s reemployment claim, declined to read an instruc-
tion defining “adverse employment action” in connection with plaintiff’s retal-
iation claim, and declined to award him equitable relief on his whistleblowing
claim. The Court of Appeals affirmed. Held: (1) The trial court did not err in
granting defendant a directed verdict on plaintiff’s reemployment claim because
a plaintiff claiming a violation of ORS 659A.046 must prove that there was an
available and suitable position in which the plaintiff could have been reemployed
and, in this case, plaintiff conceded that he had failed to do so; (2) the trial court
erred in failing to give plaintiff’s requested jury instruction defining “adverse
employment action” for purposes of a retaliation claim under ORS 659A.030
(1)(f) but the error was harmless; and (3) the trial court did not err in declining to
award plaintiff equitable relief under the circumstances.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
On review from the Court of Appeals.*
Michael E. Rose, Portland, argued the cause and filed the
briefs for petitioner on review.
Colm Moore, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. Also
on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
______________
* Appeal from Clackamas County Circuit Court, Katherine Weber, Judge.
294 Or App 415, 431 P3d 424 (2018).
764 Summerfield v. OLCC
Caitlin Mitchell, Johnson Johnson Lucas & Middleton
PC, Eugene, filed the brief for amicus curiae Oregon Trial
Lawyers Association.
Before Walters, Chief Justice, and Balmer, Nakamoto,
Flynn, Duncan, and Nelson, Justices, and Kistler, Senior
Judge, Justice pro tempore.**
DUNCAN, J.
The decision of the Court of Appeals and the judgment of
the trial court are affirmed.
______________
** Garrett, J., did not participate in the consideration or decision of this case.
Cite as 366 Or 763 (2020) 765
DUNCAN, J.
Plaintiff brought this civil action against defendant,
his former employer, raising multiple claims of unlawful
employment actions. A jury rejected all but one of plaintiff’s
claims. On the single claim on which the jury found for plain-
tiff, it did not award him any damages. Consequently, the
trial court entered a judgment in defendant’s favor. Plaintiff
appealed, and the Court of Appeals affirmed. Summerfield
v. OLCC, 294 Or App 415, 431 P3d 424 (2018). For the rea-
sons explained below, we also affirm.
I. PROCEDURAL AND HISTORICAL FACTS
We begin with an overview of the procedural and
historical facts. Additional facts that are relevant to the
issues on review are set out in the discussion section below,
where we address each of the issues separately.
Plaintiff, Gene Summerfield, worked for defendant,
Oregon Liquor Control Commission (OLCC), in its warehouse.
In his complaint in this civil action, plaintiff alleged that he
and other African-Americans had been subjected to racial
discrimination and racial harassment at the warehouse.
Plaintiff also alleged that he had repeatedly told defendant
about the discrimination and harassment, but defendant had
failed to take effective corrective action. Instead, according
to plaintiff, defendant had passed him over for promotions
and had promoted persons who had discriminated against
him. Plaintiff further alleged that, after he filed a racial dis-
crimination complaint against defendant with the Bureau of
Labor and Industries (BOLI), he found a noose in his work
area. Plaintiff reported the noose and left work. He filed a
workers’ compensation claim for acute stress, and the claim
was accepted. Plaintiff received medical treatment for his
acute stress, and his medical provider eventually released
him to return to work at a site other than the OLCC ware-
house. Plaintiff requested reemployment, but—according
to plaintiff’s complaint in this action—defendant failed to
reemploy him in an available and suitable position; instead,
defendant initiated an investigation into allegations that
plaintiff had engaged in workplace misconduct four years
earlier. After the investigation, which plaintiff alleged was
766 Summerfield v. OLCC
biased against him and incomplete, defendant terminated
plaintiff’s employment.
Based on those allegations, plaintiff made several
claims for relief, four of which are relevant on review. Those
four claims were brought pursuant to ORS 659A.885(1),
which provides that “[a]ny person claiming to be aggrieved”
by certain unlawful employment practices “may file a civil
action in circuit court.” ORS 659A.885(1) further provides
that, “[i]n any action under this subsection, the court may
order injunctive relief or any other equitable relief that may
be appropriate, including but not limited to reinstatement
or the hiring of employees with or without back pay.”
Plaintiff’s first claim, an employment discrimina-
tion claim, alleged that defendant “discriminated against
Plaintiff in the terms and conditions of his employment,
which constitutes racial discrimination” and “created a
hostile work environment.” Plaintiff’s second claim, which
he entitled “retaliation,” alleged that defendant “discrimi-
nated against Plaintiff for opposing unlawful employment
practices.” His third claim, which he entitled “whistle-
blowing,” alleged that defendant “discriminated and retal-
iated against Plaintiff in the terms and conditions of his
employment due to his complaints of racial harassment,
discrimination, and retaliation.” A fourth claim, which he
entitled “failure to reemploy,” alleged that defendant “failed
to reemploy Plaintiff in an available and suitable position
after his repeated requests.”1
Plaintiff alleged that, as a consequence of defen-
dant’s conduct, he “suffered lost wages” and “emotional dis-
tress and upset” and related harms. He sought economic
damages, noneconomic damages, reinstatement, and injunc-
tive relief, as well as “any and all other relief as [the trial
court] may deem proper.”
The case proceeded to a jury trial, during which
the parties presented competing versions of events, which
they previewed in their opening statements. In his opening
1
Plaintiff also brought a claim for “race discrimination,” alleging a violation
of 42 USC section 1981, and a claim for “race intimidation,” alleging a violation
of ORS 30.198. The trial court granted defendant summary judgment on both of
those claims and they are not at issue on review.
Cite as 366 Or 763 (2020) 767
statement, plaintiff told the jury that he would prove: A
group of his co-workers created a hostile work environ-
ment. He reported their misconduct to defendant’s manag-
ers. Although the managers took some actions in response
to the complaints, their actions were inadequate and inef-
fective. In order to work in a position other than the ware-
house, plaintiff sought promotions, but did not receive any.
Frustrated with defendant’s failure to respond to his com-
plaints about the discrimination and harassment, plaintiff
filed a complaint with BOLI, which was dismissed because
it was untimely. Shortly thereafter, plaintiff found a noose
in his work area. He made an immediate report to manage-
ment and then left work. Later, he reported the incident to
the police.
Plaintiff filed a workers’ compensation claim for
acute stress. The claim was accepted, and plaintiff received
treatment. Plaintiff’s treatment provider eventually
released plaintiff to return to work, and plaintiff requested
reemployment.
After learning that plaintiff had filed this action,
one of his co-workers, Staten, told defendant’s managers
that, four years earlier, plaintiff had sold him prescrip-
tion drugs and had loaned him money, charging 50 percent
interest. The managers investigated those claims. While
the investigation was pending, defendant duty-stationed
plaintiff at home. Based on the results of the investigation,
defendant terminated plaintiff for misconduct.
In contrast to plaintiff’s version of events, defen-
dant explained in its opening statement that it had thor-
oughly investigated plaintiff’s allegations of discrimina-
tion and harassment by his coworkers and had responded
appropriately. Regarding plaintiff’s report about the noose,
defendant stated that a manager had determined that the
noose was made of twine, which was used throughout the
warehouse. The manager had conducted several interviews
but had been unable to determine who put the noose where
plaintiff saw it, how long it had been there, and whether
it had been put there for plaintiff to discover. The police,
who investigated the incident based on plaintiff’s report,
also were unable to make those determinations. Regarding
768 Summerfield v. OLCC
Staten’s allegation that plaintiff had sold him prescription
drugs, defendant explained that, when Staten reported
the conduct, it investigated and determined that plaintiff
in fact had sold the drugs to Staten, which was a violation
of OLCC’s policy regarding appropriate workplace behav-
ior. Based on that and other conduct, defendant terminated
plaintiff’s employment.
Plaintiff presented his case-in-chief, after which
defendant moved for a directed verdict on plaintiff’s “fail-
ure to reemploy” claim. That claim was based on ORS
659A.046(1), which provides:
“A worker who has sustained a compensable injury
and is disabled from performing the duties of the work-
er’s former regular employment shall, upon demand, be
reemployed by the worker’s employer at employment which
is available and suitable.”
In support of its motion, defendant argued that plaintiff
was required to present, but had failed to present, evidence
that defendant had available and suitable employment for
plaintiff at the relevant time. In response, plaintiff conceded
that he had not presented any such evidence but contended
that he was not required to do so. The trial court accepted
defendant’s argument and granted defendant’s motion for a
directed verdict.
After the presentation of evidence, the trial court
instructed the jury on the law governing plaintiff’s remain-
ing claims, viz., his claims for employment discrimination,
retaliation, and whistleblowing. Regarding the retaliation
claim, the trial court instructed the jury that plaintiff had
to prove that (1) plaintiff had opposed or reported racial dis-
crimination or harassment in the workplace, (2) defendant
had subjected him to “an adverse employment action,” and
(3) defendant had subjected him to the adverse employment
action because of plaintiff’s opposition to, or report of, racial
discrimination or harassment in the workplace. Both parties
submitted instructions that defined “adverse employment
action.” The trial court declined to give any of the proffered
definitions, stating that it did not think that an instruction
defining “adverse employment action” was necessary.
Cite as 366 Or 763 (2020) 769
The trial court provided the jury with a verdict form.
“Part I” of the form posed questions to the jury about each
claim that was being submitted to it. “Part II” of the form
asked, “What damages, if any, should plaintiff be awarded?”
and included blank spaces for the jury to insert numbers for
economic and noneconomic damages.
The jury rejected plaintiff’s first claim; on the ver-
dict form, it answered the questions about that claim in the
negative, finding that defendant had not “intentionally dis-
criminate[d] against plaintiff because of his race” and had
not “subject[ed] plaintiff to a racially hostile work environ-
ment by his co-workers.” The jury also rejected plaintiff’s
retaliation claim, finding that defendant had not “retali-
ate[d] against [plaintiff] for opposing or reporting racial dis-
crimination or racial harassment.”
But the jury accepted plaintiff’s whistleblowing
claim, finding that defendant had “take[n] adverse enforce-
ment [sic] action against plaintiff because he in good faith
reported information that he believed was a violation of a
law, rule or other regulation.” The jury was not asked to
identify, and did not identify, the specific adverse action
(or actions) that defendant had taken against plaintiff.
Although the jury accepted plaintiff’s whistleblowing claim,
it declined to award him any monetary damages. On the
verdict form, in the blanks for economic and noneconomic
damages, the jury inserted “0.”
The trial court read the completed verdict form
aloud in court. Neither party objected to the verdict, and
the jury was released. Plaintiff then made an oral request
for equitable relief, asking the trial court to order defendant
to reinstate him as an employee. The trial court denied the
request. Approximately two weeks later, plaintiff filed a
motion for compensatory and equitable relief. After a hear-
ing, the trial court took the matter under advisement and
later issued a letter opinion, simply stating that the motion
was denied.
Plaintiff appealed, and the Court of Appeals
affirmed. Summerfield, 294 Or App at 415. Plaintiff peti-
tioned this court for review, which we allowed to address
770 Summerfield v. OLCC
three issues, specifically, whether the trial court erred in
(1) granting defendant’s motion for a directed verdict on
plaintiff’s reemployment claim, (2) declining to give plain-
tiff’s requested jury instruction defining “adverse employ-
ment action” for the purposes of his retaliation claim, and
(3) denying defendant’s request for equitable relief on his
whistleblowing claim. We address those issues in turn.
II. DISCUSSION
A. Reemployment Claim—Elements of a Prima Facie Case
We begin with the issue relating to plaintiff’s
reemployment claim. ORS 659A.046(1), set out below, 366 Or
at 772-73, imposes a duty on employers to reemploy workers
who have suffered compensable work injuries. In addition,
ORS 659A.052(1)(c) provides that, if an injured worker was
employed by a state agency, like defendant, the worker has
a right to be reemployed at another state agency.2 In this
case, plaintiff alleged that defendant violated its duty under
ORS 659A.046(1) because it had “failed to reemploy plain-
tiff in an available and suitable position after his repeated
requests.”
At trial, plaintiff contended that, under ORS
659A.052(1)(c), defendant had to find him other employ-
ment with the state once it was established that he could
not return to work at OLCC. Plaintiff also presented evi-
dence that OLCC’s own policy on returning injured workers
to work provides that OLCC “is committed to returning its
employees who have compensable, work related injuries or
illnesses to available and suitable work,” and that it will
take specific steps to do so, including “entering the employ-
ee’s name on the statewide Injured Workers List, if suitable
work at [OLCC] is not available.” After plaintiff requested
reemployment, defendant offered him a position doing
maintenance work at OLCC, which plaintiff declined. Then,
2
ORS 659A.052(1)(c) provides:
“[I]f all permanent restrictions of an injured worker are known and * * *
[t]he injured worker was employed at the time of injury by any agency of the
executive or administrative department of the government of this state, the
injured worker shall have the right to reinstatement or reemployment at any
available and suitable position in another agency of the executive or admin-
istrative department.”
Cite as 366 Or 763 (2020) 771
when defendant initiated its investigation into Staten’s alle-
gations, defendant duty-stationed plaintiff at home. It did
not place him in another position at OLCC, and it did not
enter his name on the Injured Workers List.
After plaintiff’s case-in-chief, defendant moved for
a directed verdict on plaintiff’s reemployment claim, argu-
ing that plaintiff had failed to present any evidence that
there had been available and suitable employment for him
at either OLCC or another state agency during the relevant
time period. Specifically, defendant argued that there was
“zero evidence that there were any such openings.”
Plaintiff acknowledged that “there’s no evidence of
such openings.” But he argued that he was not required to
produce such evidence. He asserted that he had presented
evidence that OLCC had failed to take steps to reemploy
him as required by its own policy, and he argued that that
evidence was sufficient.
After reviewing the text of ORS 659A.046(1), the
trial court told plaintiff that it appeared that he had to
prove that, after he was released to work and had requested
reemployment, defendant had an available and suitable
position for him. Plaintiff countered that the absence of
available and suitable employment was a defense. The trial
court disagreed, concluding that the existence of available
and suitable employment is an element of a reemployment
claim. Because it was undisputed that plaintiff had pre-
sented “zero evidence” that there had been available and
suitable employment, the trial court granted defendant’s
motion for a directed verdict.
On review, plaintiff renews the argument he made
below. Therefore, the issue before this court is whether a
plaintiff who brings a reemployment claim for a violation
of ORS 659A.046 must prove not only that the defendant
failed to reemploy the plaintiff, but also that there was an
available and suitable position in which he could have been
reemployed.
A plaintiff bears the burden of proving the elements
of his or her claim. Lindland v. United Business Investments,
298 Or 318, 322-23, 693 P2d 20 (1984). Whether a fact is an
772 Summerfield v. OLCC
element of a claim depends on the substantive law defin-
ing the claim. Id. at 323 (quoting OEC 305 Commentary
(1981)). Therefore, to determine what facts are elements of
a reemployment claim, it is necessary to look to the statute
that authorizes the claim, ORS 659A.885, and the statute
that defines the duty to reemploy, ORS 659A.046.
ORS 659A.885 authorizes a person to bring a civil
action if the person is aggrieved by certain unlawful employ-
ment practices, including violations of ORS 659A.046. It
provides, in pertinent part:
“(1) Any person claiming to be aggrieved by an unlaw-
ful practice specified in subsection (2) of this section may
file a civil action in circuit court. * * *
“(2) An action may be brought under subsection (1) of
this section alleging a violation of:
“(a) * * * [ORS] 659A.046.”
(Emphasis added.) Thus, when a plaintiff brings a civil
action pursuant to ORS 659A.855, the plaintiff is alleging
that the defendant violated a statutory duty. “[T]o prove a
claim for statutory liability, the plaintiff must establish,”
among other things, that “a statute imposed a duty on the
defendant” and “the defendant violated the duty.” Deckard
v. Bunch, 358 Or 754, 759-60, 370 P3d 478 (2016). Here,
plaintiff alleged that defendant violated its duty to reemploy
under ORS 659A.046.
ORS 659A.046 requires an employer, in certain cir-
cumstances, to reemploy an injured employee. Of particu-
lar relevance here, subsection (1) establishes an employer’s
reemployment duty and subsection (3) identifies when that
duty terminates:
“(1) A worker who has sustained a compensable injury
and is disabled from performing the duties of the work-
er’s former regular employment shall, upon demand, be
reemployed by the worker’s employer at employment which
is available and suitable.
“* * * * *
“(3) Notwithstanding subsection (1) of this section, the
right to reemployment under this section terminates when
whichever of the following events first occurs:
Cite as 366 Or 763 (2020) 773
“(a) The worker cannot return to reemployment at any
position with the employer either by determination of the
attending physician or a nurse practitioner authorized to
provide compensable medical services under ORS 656.245
or upon appeal of that determination, by determination of
a medical arbiter or panel of medical arbiters pursuant to
ORS chapter 656.
“(b) The worker is eligible and participates in voca-
tional assistance under ORS 656.340.
“(c) The worker accepts suitable employment with
another employer after becoming medically stationary.
“(d) The worker refuses a bona fide offer from the
employer of light duty or modified employment that is suit-
able prior to becoming medically stationary.
“(e) Seven days elapse from the date that the worker
is notified by the insurer or self-insured employer by certi-
fied mail that the worker’s attending physician or a nurse
practitioner authorized to provide compensable medical
services under ORS 656.245 has released the worker for
reemployment unless the worker requests reemployment
within that time period.
“(f) Three years elapse from the date of injury.”
By its terms, ORS 659A.046(1) requires an employer to
reemploy an injured employee “at employment which is
available and suitable.” As such, it creates a limited duty
on an employer. An employer is not required to reemploy an
employee in any position; instead, an employer is required
to reemploy an employee in an available and suitable posi-
tion. The existence of available and suitable employment is
a core component of the duty to reemploy defined by ORS
659A.046(1). It is not a limitation on, or an exception to, that
duty.
The whole of ORS 659A.046(1) supports that con-
clusion. It identifies the circumstances that give rise to an
employer’s duty to reemploy an injured worker. Consequently,
a plaintiff making a reemployment claim must prove that
(1) he sustained a compensable injury, (2) he was disabled
from performing the duties of his former regular employ-
ment, (3) he demanded reemployment, and, after the
demand, (4) there was an available and suitable position for
774 Summerfield v. OLCC
him, and (5) the employer failed to reemploy him. Each of
those facts is a “necessary ingredient” of any claim that an
employer violated its duty to reemploy an injured worker.
See State v. Vasquez-Rubio, 323 Or 275, 278-79, 917 P2d 494(1996) (quoting State v. Tamler & Polly, 19 Or 528, 530, 25 P
71 (1890), for the proposition that the state, as the plaintiff
in a criminal case, must plead and prove facts set out in
the statute defining an offense that are “necessary ingredi-
ent[s]” of the offense, but not facts that are “mere matter[s]
of excuse or defense”). Thus, the text of ORS 659A.046(1)
shows that the existence of available and suitable employ-
ment is part of the basic definition of the duty to reemploy;
as such, it is a fact that the plaintiff must prove to establish
a violation of that duty.3
ORS 659A.046(3) provides contextual support for
that conclusion. As set out above, ORS 659A.046(3) lists
3
Others have reached the same conclusion and, although their decisions are
not binding on this court, they support our view that the text of ORS 659A.046(1)
establishes that the existence of available and suitable employment is an element
of a reemployment claim. The United States District Court for the District of
Oregon has held:
“In order to state a prima facie case of failure to reemploy under ORS
§ 659A.046, an employee must show that (1) the employee suffered a com-
pensable on-the-job injury, (2) the employee was disabled from performing
the duties of her former position, (3) the employee made a timely demand for
reemployment, (4) at the time of that demand a suitable position was available,
and (5) the employer failed to reemploy the employee in the available suitable
position.”
Davis v. Tri-Cty. Metro. Transp. Dist. of Or., 45 F Supp 3d 1222, 1243 (D Or 2014)
(emphasis added).
Likewise, the Oregon Uniform Civil Jury Instructions require a plaintiff
making a reemployment claim based on ORS 659A.046 to prove that the defen-
dant had available and suitable employment for the plaintiff. Uniform Civil Jury
Instruction 58.03 provides:
“The plaintiff claims that the defendant failed to reemploy [him / her] to
an available and suitable position.
“To recover, the plaintiff must prove all of the following:
“* * * * *
“(3) The plaintiff made a timely demand for reemployment;
“(4) A position was available at the time of the demand;
“(5) That position was suitable; and
“(6) The defendant failed to reemploy the plaintiff in the available and
suitable position.”
(Emphases added.)
Cite as 366 Or 763 (2020) 775
circumstances in which an employer’s duty to reemploy
an employee terminates. The fact that the legislature set
those circumstances out separately from the circumstances
that give rise to the duty to reemploy indicates that, if the
legislature had intended to create an exception to the duty
to reemploy or a defense for failing to perform that duty, it
would have done so in a separate section or used language
indicating that it was creating an exception or a defense.
But it did not. Nothing in the text of ORS 659A.046 indi-
cates that a plaintiff can make a prima facie case that the
defendant failed to reemploy the plaintiff in violation of ORS
659A.046(1) without presenting evidence that there had
been an available and suitable position in which the defen-
dant could have reemployed the plaintiff.
In arguing that the trial court in this case erred
by granting defendant’s motion for a directed verdict on his
reemployment claim, plaintiff asserts that an employee does
not bear the “burden” of finding a position in which he can
be reemployed. Specifically, he asserts that an employee
seeking reemployment has “no burden * * * to do anything
other than make the appropriate demand for reemployment
and then to follow the instructions of the employer. There is
no obligation placed on the injured worker to find his own
suitable job.” In support of that proposition, plaintiff cites
Robinson v. School District No. 1, 92 Or App 627, 759 P2d
1116 (1988). In that case, the Court of Appeals stated that
the reemployment statute “unambiguously requires that, on
demand of an injured employee, the employer must offer the
employee a suitable job when it becomes available.” Id. at
630.4 Plaintiff also cites an administrative rule, OAR 839-
006-0135(6), which states, “At the time of the injured work-
er’s demand for reemployment, a suitable position may not
be available. When this occurs, the injured worker must fol-
low the employer’s reporting policy until the employer offers
the injured worker an available, suitable position.” Relying
on those sources, plaintiff argues, “There is a burden placed
on the employer to be aware of the availability of suitable
reemployment so that the employer can offer the suitable
4
Robinson construed former ORS 659.420(1) (1985), renumbered as ORS
659A.046(1) (2001). The text of the two sections does not differ in any way that is
material to our analysis.
776 Summerfield v. OLCC
job to the employee when it becomes available.” Relatedly,
he argues, “[T]he only burden on the employee is to wait
patiently; there is no affirmative duty placed on an employee
to find his own job with the employer.”
Those propositions are correct, but inapposite
in this case. As defendant argues, “Plaintiff mistakes an
employer’s obligation to identify suitable work in response
to an injured worker’s demand with his obligation at trial to
prove his statutory claim under ORS 659A.046.” Although
an employer has a duty to reemploy an injured worker in
some circumstances, when a worker brings a civil action
alleging that his employer violated that duty, the worker
bears the burden of proving that the circumstances that
give rise to the duty existed. As discussed above, the exis-
tence of available and suitable employment is an element of
a reemployment claim, and, consequently, a plaintiff bears
the burden of production and persuasion on it. OEC 305 (“A
party has the burden of persuasion as to each fact the exis-
tence or nonexistence of which the law declares essential to
the claim for relief or defense the party is asserting.”); OEC
307(2) (“The burden of producing evidence as to a particular
issue is initially on the party with the burden of persuasion
as to that issue.”).
Plaintiff also argues that, because an employer will
know what positions it has, it should bear the burden of
proving that it did not have any available and suitable posi-
tions. But the fact that a defendant may have superior access
to evidence is not a sufficient basis to transfer the burden
of producing evidence from the plaintiff to the defendant.
See 2 McCormick on Evidence, § 337 (8th ed 2020) (“Very often
one must plead and prove matters as to which his adversary
has superior access to the proof. Nearly all the required alle-
gations of the plaintiff in actions for tort or breach of con-
tract relating to the defendant’s acts or omissions describe
matters peculiarly in the defendant’s knowledge.”).5
5
As a practical matter, an employee filing a reemployment claim will be
able to obtain evidence regarding available positions through discovery, includ-
ing requests for production of documents disclosing job openings and depo-
sitions of those responsible for posting and filling openings. An employee may
also be able to rely on his own knowledge of the employer’s staffing needs and
practices.
Cite as 366 Or 763 (2020) 777
In sum, the existence of available and suitable
employment is an element of a plaintiff’s reemployment
claim. Therefore, a plaintiff bears the burden of production
and persuasion with respect to that fact.
In this case, plaintiff conceded that he presented
“zero” evidence of that fact.6 When there is no evidence from
which a reasonable trier of fact could find facts sufficient
to establish an element of the party’s claim, the opposing
party is entitled to a directed verdict on the claim. Brown
v. J. C. Penney Co., 297 Or 695, 705, 688 P2d 811 (1984).
Consequently, the trial court did not err in granting defen-
dant’s motion for a directed verdict on plaintiff’s reemploy-
ment claim.
B. Retaliation Claim—Jury Instruction
The second issue that we allowed review to consider
is whether the trial court erred in instructing the jury on
plaintiff’s retaliation claim. That claim was based on ORS
659A.030(1)(f), which provides that it is an unlawful employ-
ment practice
“[f]or any person to discharge, expel, or otherwise discrim-
inate against any other person because that other person
has opposed any unlawful practice, or because that other
person has filed a complaint, testified or assisted in any
proceeding under this chapter or has attempted to do so.”
At trial, the parties agreed to an instruction on the
elements of plaintiff’s retaliation claim, and the trial court
gave that agreed-upon instruction, which stated:
“Retaliation, elements and burden of proof: The plain-
tiff seeks damages against the defendant for retaliation.
The plaintiff has the burden of proving each of the follow-
ing elements by a preponderance of the evidence.
“One, the plaintiff engaged in or was engaging in an
activity protected under law; that is, opposing or reporting
racial discrimination and/or harassment in the workplace.
“Two, the employer subjected the plaintiff to an adverse
employment action. And, three, the plaintiff was subjected
6
Plaintiff did not argue that the evidence he presented was sufficient to sup-
port a reasonable inference that there was an available and suitable position
available for him at either OLCC or another state agency at the relevant time.
778 Summerfield v. OLCC
to the adverse employment action because of his opposition
to or report of—or reports of racial discrimination and/or
harassment in the workplace.”
(Emphases added.) Plaintiff also requested the following
instruction defining “adverse employment action”:
“An action is an adverse employment action if a reasonable
employee would have found the action materially adverse,
which means it might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.”
(Emphases added.) The trial court declined to give plain-
tiff’s requested instruction. Instead, it opted not to define
“adverse employment action.”7
The trial court provided the jury a verdict form
that set out questions about each of plaintiff’s claims. The
question regarding plaintiff’s retaliation claim asked, “Did
defendant retaliate against plaintiff for opposing or report-
ing racial discrimination or racial harassment?” The jury
answered, “No.”
Generally, a “party is entitled to a jury instruction
on its theory of the case if the requested instruction cor-
rectly states the law, is based on the operative pleadings,
and is supported by the evidence.” Ossanna v. Nike, Inc.,
365 Or 196, 212-13, 445 P3d 281 (2019) (citing Hernandez v.
Barbo Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998)).
In this case, there is no dispute that plaintiff’s requested
instruction was based on the pleadings and was supported
by the evidence. The only dispute is whether it is a correct
statement of law.
Plaintiff’s requested instruction is based on the
Supreme Court’s decision in Burlington N. & S. F. R. Co. v.
White, 548 US 53, 126 S Ct 2405, 165 L Ed 2d 345 (2006),
which concerned a retaliation claim under 42 USC section
2000e-3(a), the antiretaliation provision of Title VII of the
Civil Rights Act of 1964. In Burlington, the Court held that
a plaintiff alleging a retaliation claim under Title VII “must
show that a reasonable employee would have found the
7
As mentioned, 366 Or at 768, the trial court also declined to give an instruc-
tion defendant requested defining “adverse employment action.”
Cite as 366 Or 763 (2020) 779
challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” 548 US at
68 (emphasis added) (internal quotation marks omitted).
In PSU Association of University Professors v.
PSU, 352 Or 697, 291 P3d 658 (2012), when determining
what a plaintiff must prove to establish a retaliation claim
under ORS 659A.030(1)(f), this court repeatedly referred
to Burlington, noting that that case provided useful con-
text for ORS 659A.030(1)(f), given that the purposes of ORS
659A.030(1)(f) and the antiretaliation provision in Title VII
are similar. Id. at 711-13. At one point, the court quoted
Burlington’s rule: that to establish that an employee was
subjected to an adverse employment action for the purposes
of Title VII, the employee “must show that ‘a reasonable
employee would have found the challenged action materi-
ally adverse,’ meaning that the challenged action ‘well might
have dissuaded a reasonable worker from making or sup-
porting a charge of discrimination.’ ” PSU Association, 352
Or at 722 (quoting Burlington, 548 US at 68) (first empha-
sis in PSU Association, second emphasis added). However,
at another point, the court paraphrased the Burlington
holding, stating that the Supreme Court had held that the
antiretaliation provision of Title VII applied to all employer
actions that “reasonably would deter a victim of discrimi-
nation from pursuing the remedial mechanisms available
under Title VII.” PSU Association, 352 Or at 712 (empha-
sis added). Thus, in PSU Association, this court quoted
Burlington as holding that an adverse employment action is
one that “well might have dissuaded” a reasonable worker
from making or supporting a charge of discrimination, but
later described the case as defining an adverse employment
action as one that “would reasonably deter” a victim of dis-
crimination from taking such action. Finally, this court held
that ORS 659A.030(1)(f) “restricts an employer from engag-
ing in retaliatory activity that reasonably would impede
or deter employees from pursuing their rights under [ORS
chapter 659A].” 352 Or at 713 (emphasis added).
Defendant argues that, despite extensively quot-
ing and paraphrasing Burlington, this court established a
780 Summerfield v. OLCC
higher standard for an adverse employment action for the
purposes of ORS 659A.030(1)(f) in PSU Association than
the Supreme Court established for the purposes of Title
VII in Burlington. Defendant notes that, in Burlington, the
Supreme Court referred to actions that “well might have
dissuaded” a victim from pursuing a remedy, but in PSU
Association this court stated the rule in terms of actions
“that reasonably would impede or deter.” In defendant’s
view, the former “indicates that there is a possibility that
something will happen, and the latter indicates that there
is a probability that something will happen.” Based on that
premise, defendant argues that plaintiff’s requested instruc-
tion in this case, which was based on Burlington, does not
accurately reflect Oregon law under PSU Association.
We disagree with defendant’s reading of PSU
Association. In PSU Association, this court used the phrases
“well might” and “reasonably would” interchangeably, which
indicates that it intended the phrases to express the same
standard. Had the court intended the phrase “reasonably
would” to establish a higher standard than “well might,” it
would not have used “reasonably would” in describing the
purportedly lower standard in Burlington. Additionally, it
held that ORS 659A.030(1)(f) prohibits retaliatory actions
that “reasonably would” deter an employee from pursu-
ing his or her statutory rights, the same phrase it used to
describe the holding in Burlington. The fact that it used
“reasonably would” to describe both the Burlington stan-
dard and the ORS 659A.030(1)(f) standard indicates that
it did not announce a different standard. See McLaughlin v.
Wilson, 365 Or 535, 551, 449 P3d 492 (2019) (explaining that
PSU Association “noted the similarity of our standard to the
standard in Burlington”).8
Consequently, defendant’s argument that plaintiff’s
requested instruction regarding the meaning of “adverse
employment action” is incorrect is unavailing. In PSU
Association, this court adopted the Burlington standard
for establishing such an action, and plaintiff’s requested
8
That conclusion is also consistent with how the Court of Appeals has inter-
preted PSU Association. See Meyer v. Oregon Lottery, 292 Or App 647, 679, 426
P3d 89 (2018) (citing PSU Association as “adopting the Burlington ‘materially
adverse’ standard” for claims made under ORS 659A.030(1)(f)).
Cite as 366 Or 763 (2020) 781
instruction is consistent with that standard.9 Because the
instruction was a correct statement of the law, was based on
the pleadings, and was supported by the evidence, the trial
court erred in declining to give it.10
That conclusion leads us to defendant’s alternative
argument: that the failure to give the instruction was harm-
less. See ORS 19.415(2) (“No judgment shall be reversed or
modified except for error substantially affecting the rights
of a party.”); see also Or Const, Art VII (Amended), § 3. An
error in failing to give a requested instruction “is harmless
if there is little likelihood that the error affected the verdict.”
Ossanna, 365 Or at 219 (internal quotation marks omitted).
Conversely, an error in failing to give an instruction is prej-
udicial if it “probably created an erroneous impression of the
law in the minds of the jury and if that erroneous impres-
sion may have affected the outcome of the case.” Id. (inter-
nal quotation marks omitted). When determining whether
an instructional error is harmless, this court considers the
instructions “as a whole” and “in the context of the evidence
at trial and the parties’ theories of the case with respect to
the various charges, claims, and defenses at issue.” Purdy v.
Deere and Company, 355 Or 204, 227-28, 324 P3d 455 (2014)
(internal citation omitted).
In this case, defendant argues that the failure to
give plaintiff’s requested instruction defining “adverse
employment action” was harmless given the parties’ theo-
ries regarding the retaliation claim. Plaintiff’s theory was
that defendant, his employer, took actions against him at
work because he opposed and reported racial discrimina-
tion and racial harassment. In closing argument, he told the
jury that they had heard evidence about “a lot of adverse
90
Under Burlington, an action is adverse if it “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination” and
plaintiff’s instruction stated that an action is adverse if it “might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.” We
acknowledge that the Burlington definition begins with “well might have,” as
opposed to “might have,” but we do not view the use of the word “well” as requir-
ing a probability, as defendant argues.
10
Plaintiff also requested an alternative instruction defining “adverse
employment action,” using similar language taken from Burlington. In light of
our conclusion that the trial court erred in declining to give the instruction dis-
cussed above, we do not address plaintiff’s alternative instruction.
782 Summerfield v. OLCC
employment actions,” including “failure to promote,” “failure
to train,” and “other slights in the workplace.” Defendant
did not dispute that those actions would constitute “adverse
employment actions.” Instead, defendant disputed that
it took those actions because plaintiff had opposed and
reported racial discrimination and racial harassment. For
example, defendant did not dispute that it failed to promote
plaintiff, but it argued that it did so because “a more quali-
fied individual was hired” for that job. Similarly, defendant
did not dispute that it terminated plaintiff, but it argued
that it “terminated [plaintiff’s] employment for violating its
policies and procedures.” Thus, the parties’ disagreement
was not about whether the actions were adverse to plaintiff;
rather, it was about why defendant took them.
As the trial court instructed the jury, to establish
his retaliation claim, plaintiff had to prove three elements:
(1) he engaged in an activity protected by law, that is, he
opposed or reported racial discrimination or racial harass-
ment, (2) defendant subjected him to an adverse employ-
ment action, and (3) defendant subjected him to the adverse
employment action because of plaintiff’s opposition to or
report of racial discrimination or racial harassment. Given
that defendant did not dispute the second element, it does
not appear that the trial court’s failure to define “adverse
employment action” could have affected the jury’s verdict on
the claim.
Plaintiff suggests that, regardless of the fact that
defendant did not dispute that an adverse employment action
had been taken, the jury might have misunderstood what
constitutes an “adverse employment action.” He points out
that the trial court used the phrase in connection with both
his retaliation claim, which was based on ORS 659A.030(1)(f),
and his whistleblowing claim, which was based on ORS
659A.199. The retaliation statute and the whistleblowing
statute cover different categories of conduct, as plaintiff
notes. As just discussed, the retaliation statute covers con-
duct that “well might * * * dissuade[ ] a reasonable worker
from making or supporting a charge of discrimination.”
PSU Association, 352 Or at 722 (quoting Burlington, 548 US
at 68). But the whistleblowing statute covers only a subset
Cite as 366 Or 763 (2020) 783
of that conduct; specifically, it covers conduct that relates to
the “terms, conditions, or privileges of employment.” ORS
659A.199(1). Plaintiff contends that, given the way the trial
court instructed the jury, the jury might have erroneously
concluded that, to prevail on his retaliation claim, plaintiff
had to prove that defendant took adverse actions against
him relating to the “terms, conditions, or privileges of [his]
employment” when, in fact, he had to prove only that defen-
dant took actions that “might well have dissuaded a reason-
able person” from opposing or reporting racial discrimina-
tion or racial harassment.
We understand plaintiff’s contention and agree that
trial courts should be clear about the differences between
the elements of a retaliation claim under ORS 659A.030(1)(f)
and a whistleblowing claim under ORS 659A.199. But we
cannot conclude that the trial court’s jury instructions in
this case were prejudicial. Even assuming that the jury
could have understood “adverse employment action” to cover
only actions relating to the terms, conditions, or privileges
of employment, plaintiff has not identified any adverse
actions by defendant that he relied on to support his retal-
iation claim that would fall outside that category. Indeed,
at trial, plaintiff did not differentiate between the actions
by defendant that he was relying on to support his retalia-
tion claim and the actions he was relying on to support his
whistleblowing claim. He generally treated the two claims
as one and the same. He argued that he engaged in pro-
tected activities and defendant responded by taking retal-
iatory actions, and he relied on the same protected activi-
ties and retaliatory actions for both claims. Thus, plaintiff’s
position throughout the proceedings was that the retalia-
tory actions he identified were sufficient to prove both his
retaliation claim (which covered a broader category of retal-
iatory actions) and his whistleblowing claim (which covered
a narrower category of retaliatory actions).
Moreover, the jury found for plaintiff on the whistle-
blowing claim, which means that the jury found that defen-
dant had taken an action against plaintiff that fell within
the narrower category of retaliatory actions covered by the
whistleblowing statute. Considering the identity between
784 Summerfield v. OLCC
the protected activities that plaintiff relied on as the basis
for both his whistleblowing claim and his retaliation claim,
the jury necessarily found that defendant had taken an
adverse action against him that fell within the broader cate-
gory of conduct covered by the retaliation statute. Given that
the jury actually found that defendant had taken an adverse
employment action against plaintiff, we conclude that the
trial court’s failure to define that phrase was harmless.
C. Whistleblowing Claim—Entitlement to Equitable Relief
The third and final issue in this case is whether the
trial court erred in denying plaintiff equitable relief on his
whistleblower claim. As recounted above, plaintiff brought
that claim pursuant to ORS 659A.885(1), which authorizes
civil actions for violations of certain antidiscrimination stat-
utes, including ORS 659A.199(1), which provides:
“It is an unlawful employment practice for an employer
to discharge, demote, suspend or in any manner discrimi-
nate or retaliate against an employee with regard to pro-
motion, compensation or other terms, conditions or privi-
leges of employment for the reason that the employee has in
good faith reported information that the employee believes
is evidence of a violation of a state or federal law, rule or
regulation.”
Throughout the proceedings, plaintiff had identified
several actions that he contended defendant took in retalia-
tion against him for whistleblowing. Those actions included
subjecting plaintiff to “slights in the workplace,” giving
plaintiff undesirable work assignments, failing to train and
promote plaintiff, investigating plaintiff for workplace mis-
conduct, duty-stationing plaintiff at home, and ultimately
terminating plaintiff’s employment. But the verdict form
did not specify what action or actions the jury had found
that defendant took in retaliation against plaintiff. Thus,
it is unclear whether the jury found that defendant retal-
iated against plaintiff for whistleblowing by, for example,
giving him undesirable work assignments or by terminating
him.
As mentioned, although the jury found that defen-
dant had retaliated against plaintiff for whistleblowing, it
did not award plaintiff any monetary damages. After the
Cite as 366 Or 763 (2020) 785
jury’s verdict was received and the jury was dismissed,
plaintiff made an oral motion for equitable relief in form of
reinstatement, which the trial court denied.
Weeks later, plaintiff filed a motion seeking com-
pensatory damages and equitable relief. As compensatory
damages, he sought lost wages and counseling costs. As
equitable relief, he sought front pay, which is an equitable
remedy that a court can award when reinstatement is not
possible. Noting that the trial court had denied his request
for reinstatement, plaintiff requested two years of front pay.
Also as equitable relief, plaintiff requested injunctions; spe-
cifically, he asked the trial court to enjoin defendant from
“engaging in further illegal practices” and to order defen-
dant “[to] take appropriate steps to ensure such conduct
does not occur again, including any post-termination retali-
ation against plaintiff.”
Defendant filed a response to plaintiff’s motion,
arguing against each type of relief plaintiff had requested.
Defendant asserted that awarding plaintiff compensatory
damages on a theory that defendant caused plaintiff finan-
cial losses would be inconsistent with the jury’s verdict.
Regarding front pay, defendant asserted that plaintiff was
essentially seeking reconsideration of the trial court’s ear-
lier denial of reinstatement and that front pay was beyond
the scope of the pleadings.11 Finally, regarding plaintiff’s
request for injunctive relief, defendant asserted that plain-
tiff’s request was “moot” because plaintiff was no longer
employed by defendant; that there “was no legal basis for
an injunction or order that essentially tells a party to ‘follow
the law’ ”; and that plaintiff had neither alleged nor estab-
lished that defendant would retaliate against him in the
future, so any injunction would be based on speculation.
Plaintiff filed a reply. He asserted that the trial court
could award front pay in lieu of reinstatement. Regarding his
request for injunctive relief, plaintiff acknowledged that an
injunction is appropriate only if a threatened injury is “ ‘of a
real and substantial character.’ ” (Quoting Wilson v. Parent,
11
During the trial, plaintiff moved to amend his complaint to allege front
pay and the trial court denied that motion.
786 Summerfield v. OLCC
228 Or 354, 370, 365 P2d 72 (1961).) “ ‘[I]t must appear that
the danger is probable or threatened.’ ” (Quoting McCombs v.
McClelland, 223 Or 475, 485, 354 P2d 311 (1960).) Plaintiff
asserted that there was a risk that defendant would “offer
potential employers negative references for plaintiff.” Based
on that assertion, plaintiff suggested that the trial court
could issue an order “specifying that no negative job refer-
ences are to be given when prospective employers call,” “an
order * * * not to interfere with plaintiff’s potential future
employment with the State,” and “an order * * * requiring
mandatory training for OLCC employees about whistle-
blower retaliation.”
The trial court held a hearing on plaintiff’s motion,
after which it took the matter under advisement. It subse-
quently issued a letter opinion denying the motion.
On review, the issue is whether the trial court
erred in denying plaintiff equitable relief. Plaintiff asserts
that, because the jury found that defendant had retaliated
against him for whistleblowing but did not award him any
damages, the trial court was required to award him equita-
ble relief.
When, as here, a plaintiff has brought an action
pursuant to ORS 659A.885(1), a trial court “may order
injunctive relief and any other equitable relief that may be
appropriate, including but not limited to reinstatement or
the hiring of employees with or without backpay.” (Emphasis
added.) Thus, a trial court has discretion regarding whether
to order equitable relief, even if the relief is appropriate.
Consequently, we review a trial court’s decision regarding
whether to order equitable relief for an abuse of discretion.
The party challenging a trial court’s exercise of discretion
bears the burden of proving that the trial court abused its
discretion.12
In this case, plaintiff’s argument regarding his
entitlement to equitable relief is limited and categorical.
12
To be clear, the issue is not whether the trial court could have ordered
equitable relief; rather, it is whether the trial court abused its discretion in not
awarding such relief. That is, the issue is whether, given plaintiff’s requests, the
evidence, and the parties’ arguments, the trial court had no choice but to order
equitable relief.
Cite as 366 Or 763 (2020) 787
Plaintiff asserts “[w]hen a plaintiff seeks both monetary
damages and equitable relief under ORS [chapter] 659A,
and the jury returns a verdict in plaintiff’s favor but awards
no monetary relief, plaintiff is entitled to equitable relief.”
Plaintiff bases his argument on a general statement in
Ballinger v. Klamath Pacific Corp., 135 Or App 438, 898 P2d
232 (1995).
In Ballinger, the trial court concluded that the
plaintiffs had established that the defendants had engaged
in sex discrimination, but the trial court did not grant the
plaintiffs any relief because, in its view, the plaintiffs had
not made reasonable efforts to resolve the problem. The
Court of Appeals reversed, holding that the trial court had
erred, as a matter of law, “when it imposed a ‘reasonable
effort’ requirement and barred recovery of lost wages on
that basis.” Id. at 450; id. at 451 n 10 (“We remand in this
case because [the trial] court erred, as a matter of law, when
it treated ‘reasonable effort’ as if it were a prerequisite to
an award[.]” (Emphasis in original.)). In doing so, the Court
of Appeals stated that “[p]laintiffs either establish discrim-
ination or they do not. Here, they did. Once discrimination
is established, plaintiffs are entitled to relief * * *.” Id. at 448
(emphasis added).
Based on the italicized statement, plaintiff asserts
that a trial court “does not have discretion to deny relief
once [an] unlawful practice has been established.” That
argument is unavailing. First and obviously, Ballinger is
not binding on this court. Second and more importantly, as
explained below, Ballinger did not involve the same issue as
this case; it did not involve whether a trial court could, as an
exercise of its discretion, deny equitable relief.
Given the issue in Ballinger and the Court of
Appeals’ explanation of its reasoning, Ballinger cannot be
read as establishing the categorial rule for which plaintiff
cites it. Thus, Ballinger does not support plaintiff’s claim of
error and, because plaintiff has not developed an argument
based on any other authority, plaintiff has failed to estab-
lish that the trial court abused its discretion in denying him
equitable relief.
788 Summerfield v. OLCC
That conclusion does not end our analysis, however,
because amicus curiae, Oregon Trial Lawyers Association
(OTLA), has proffered an argument in support of plain-
tiff’s claim based on other authorities. Relying on federal
cases involving Title VII, which also includes a provision
authorizing civil actions for violations of antidiscrimination
statutes, OTLA argues that the trial court erred in denying
plaintiff either of two types of equitable relief. Specifically,
OTLA argues that “the trial court abused its discretion
* * * by denying plaintiff either reinstatement or front pay.”
OTLA points out that ORS 659A.885 was based on a similar
provision in Title VII and, as this court stated in Holien v.
Sears, Roebuck and Co., 298 Or 76, 99, 689 P2d 1292 (1984),
was intended to provide “parallel” remedies to that federal
provision. Therefore, OTLA argues, federal cases interpret-
ing the federal provision are instructive when interpreting
ORS 659.885. According to OTLA, federal cases establish
two general rules relevant here. First, OTLA asserts, they
establish that “where the fact-finder finds illegal conduct
resulting in wage-loss, plaintiffs are generally entitled to
back pay.” (Citing Albermarle Paper Co. v. Moody, 422 US
405, 421, 95 S Ct 2362, 45 L Ed 2d 280 (1975); EEOC v. Joint
Apprenticeship Comm’n., 186 F3d 110, 122 (2d Cir 1999);
EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F3d
1244, 1251 (11th Cir 1997); Pegues v. Mississippi State Emp’t
Serv., 899 F2d 1449, 1457 (5th Cir 1990).) Second, OTLA
asserts, they establish that “a plaintiff will generally be
entitled to front pay when he or she has been unlawfully
terminated by where reinstatement is not a viable option.”
(Citing Bogan v. MTD Consumer Grp. Inc., 919 F3d 332,
336-37 (5th Cir 2019); Weaver v. Casa Gallardo, Inc., 922
F2d 1515, 1528 (11th Cir 1991).) Thus, OTLA’s argument is
that, when a plaintiff establishes that a defendant violated
an antidiscrimination statute and the violation resulted in
wage loss or termination, the defendant is generally enti-
tled to equitable relief in the form of back pay, reinstate-
ment, or front pay (or some combination of those forms of
relief).
Defendant does not dispute that ORS 659A.885 was
based on Title VII and that federal cases can be instructive,
and we do not hold otherwise. But, even assuming arguendo
Cite as 366 Or 763 (2020) 789
that the general rules OTLA draws from the federal cases
also apply to ORS 659A.885, those rules do not establish
that the trial court erred in this case. As is apparent from
the rules themselves (as articulated by OTLA), the rules
apply to certain types of violations: those that result in wage
loss or termination. Indeed, all the cases cited by OTLA in
support of the rules involved those types of violations. Joint
Apprenticeship Comm’n., 186 F3d at 122 (2d Cir 1999) (“An
applicant denied employment in violation of Title VII is ordi-
narily entitled to an award of back pay from the date of the
discriminatory action to the date of judgment.”); Massey
Yardley Chrysler Plymouth, Inc., 117 F3d at 1251 (stating
that once liability for constructive discharge is established,
a plaintiff is presumptively entitled to back pay from the
date of discharge until the date of judgment); Pegues, 899
F2d at 1458 (upholding an award of back pay for plaintiffs
who were denied job opportunities in violation of Title VII);
Bogan, 919 F3d at 339-40 (reversing trial court’s denial of
reinstatement of plaintiff who had been unlawfully termi-
nated because trial court had relied on improper factors);
Weaver, 922 F2d at 1529-30 (affirming back pay award for
plaintiff who had been passed over for promotions and ter-
minated in violation of Title VII).
The difficulty with OTLA’s argument in this case
is that it is not clear what type of violation the jury found;
specifically, it is not clear whether the jury found that defen-
dant had retaliated against plaintiff in a way that resulted
in wage loss or termination. As mentioned, plaintiff argued
that defendant had retaliated against him in several ways.
Not all those actions resulted in wage loss or termination.
The jury could have found, for example, that defendant
retaliated against plaintiff through “slights in the work-
place” or undesirable job assignments, in which case back-
pay, reinstatement, or front pay would not be appropriate.
Given the way the case was litigated and the lack of speci-
ficity of the jury’s verdict, the general rules OTLA proffers
do not establish that the trial court abused its discretion in
this case. Nothing in those rules or the cases from which
OTLA derives them supports the conclusion that the trial
court was required to either reinstate plaintiff or award him
front pay, as OTLA argues.
790 Summerfield v. OLCC
In sum, neither plaintiff’s argument nor OTLA’s
argument establish that the trial court abused its discre-
tion in denying plaintiff equitable relief. Plaintiff’s categori-
cal argument that a trial court must always order equitable
relief in circumstances like this is unsupported, and OTLA’s
argument that equitable relief is required for certain types of
violations does not account for the fact that, in this case, it is
not clear that the jury found any of those types of violations.
Therefore, we conclude that plaintiff, either on his own or as
aided by OTLA, has not carried his burden of proving that
the trial court’s denial of equitable relief requires reversal.
III. CONCLUSION
In sum, we conclude that the trial court did not
err in granting defendant a directed verdict on plaintiff’s
reemployment claim; plaintiff bore the burden of proving
that defendant had available and suitable employment for
him and plaintiff conceded that he had not done so. We also
conclude that, although the trial court erred in failing to
instruct the jury on the meaning of “adverse employment
action” for the purposes of plaintiff’s retaliation claim, the
error was harmless because there was no dispute that the
actions plaintiff relied on to support his retaliation claim
were adverse employment actions and the jury actually
found that defendant had committed an adverse employ-
ment action. Finally, we conclude that plaintiff has not
established that, under the circumstances of this case, the
trial court abused its discretion in declining to award plain-
tiff equitable relief.
The decision of the Court of Appeals and the judg-
ment of the trial court are affirmed.