Olsen v. Deschutes County , 204 Or. App. 7 ( 2006 )

SCHUMAN, J.

Defendant Deschutes Comity appeals a judgment following a jury verdict in favor of plaintiffs Olsen, Tomitz, and Reese, three former employees of its Mental Health Department. The case presents several issues arising from facts incident to the termination of their employment: the relationship between statutes of limitation for different wrongful termination actions, the validity of defendant’s claimed immunity under statutes establishing workers’ compensation remedies as exclusive, exhaustion requirements, and the sufficiency of evidence to establish an assault. We affirm.

Plaintiffs worked at Park Place, a county respite care facility for the mentally ill. They cared for clients directly and assisted other mental health professionals. Plaintiffs alleged that their supervisor, Muir, inadequately supervised the facility by failing to provide safety precautions for dealing with HIV-infected and hepatitis-infected patients, failing to keep records of client medication, and, in violation of department policy, admitting and retaining aggressive clients, one of whom, G, burst into an office and bolted threateningly toward Olsen and another employee. Plaintiffs asserted that staff apprised Muir and Muir’s supervisors of their concerns, but nobody adequately responded to them, and, under Muir’s leadership, the work environment became combative and intolerable.

Plaintiff Tomitz was terminated after having several disagreements with Muir concerning safety issues, reporting those safety concerns to Muir’s supervisors, requesting further training from the Mental Health Department, and submitting a grievance concerning an allegedly retaliatory performance evaluation. Olsen and Reese contend (and the jury agreed, and defendant does not contest on appeal) that they were constructively discharged after repeatedly requesting further health and safety measures, which, they assert, were never provided. Each plaintiff alleged that the working conditions caused them sleeplessness, anxiety, and emotional distress.

All three plaintiffs brought actions for negligence and common-law wrongful termination. Olsen and Tomitz also brought an action under ORS 659.035, part of the general unlawful employment practices law, for violation of ORS 659.510,¹ the public employee whistleblower law, and Olsen sued for assault, asserting that defendant was jointly or vicariously liable for G’s outburst. The jury returned a verdict in favor of each plaintiff on each claim with the exception of Olsen’s whistleblower claim. Defendant appeals from the subsequently entered judgment, assigning error to the trial court’s denial of several motions, each of which is described below.

In its first assignment of error, defendant contends that, because the pleadings on their face showed that the action was not timely filed, the trial court should have granted defendant’s motion to dismiss Tomitz’s whistle-blower claim. ORCP 21 A(9). According to defendant, Tomitz brought her claim under ORS 659.510, the public employee whistleblower law, which states, in part:

“(1) * * * [N]o public employer shall:

‡ ‡

“(b) Prohibit any employee from disclosing, or take or threaten to take disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of:

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

“(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 state, agency or political subdivision [.]”

It follows, according to defendant, that the statute authorizing civil remedies for violation of ORS 659.510 establishes the operative limitations on Tomitz’s claim. That statute is ORS 659.530, and it states, in part:

“[A]n employee alleging a violation of ORS 659.510 may bring a civil action for appropriate injunctive relief or damages, or both, within 90 days after the occurrence of the alleged violation.”

Thus, defendant contends, Tomitz had to bring her whistle-blower action “within 90 days” after “the alleged violation,” that is, of her termination in retaliation for complaints concerning safety practices at Park Place. Tomitz was terminated on August 7, 2000, and her complaint was filed in December 2000, exceeding the purported 90-day limitation.

Tomitz, for her part, contends that her claim was brought not under the whistleblower statute, but under the more general unlawful employment practices statute, ORS 659.035. That statute specifies that violation of ORS 659.510, the whistleblower statute, is one among a variety of prohibited “unlawful employment practice [s],” violation of which “subjects the violator to the same civil and criminal remedies and penalties as provided in * * * [ORS] 659.121 * * ORS 659.035(2). ORS 659.121(3), in turn, with an exception not relevant to this case, establishes a one-year statute of limitation. Tomitz filed her claim within that one-year period.²

Tomitz, in other words, argues that her whistle-blower claim was brought under the general unlawful employment practices statute and that statute’s one-year limitation applies, while defendant argues that Tomitz’s action was brought directly under the whistleblower statute and that statute’s 90-day limitation period applies.

Resolution of this dispute requires us to construe the amended complaint. In doing so, “it is necessary to view each pleading as a whole, and not to isolate any single allegation as determinative of the nature of the suit.” Grider v. Turnbow, 162 Or 622, 632, 94 P2d 285 (1939). “ “Where it is doubtful upon what theory the pleading is drawn, it should be construed according to that theory which is most consistent with the facts alleged, and allegations not in harmony therewith may be considered as surplusage.’” Lawrence Whse., Inc. v. Best Lbr. Co., Inc., 202 Or 77, 84, 271 P2d 661 (1954) (quoting Lytle v. Payette-Oregon Irr. Dist., 175 Or 276, 293, 152 P2d 934 (1944)). The court should allow “reasonable latitude” in construing the pleadings “‘in order to reach a decision on the merits if it is reasonably possible to do [so] without prejudice to the substantive rights of either party.” Gaswint v. Amigo Motor Homes, 265 Or 248, 256, 509 P2d 19 (1973).

The disputed claim is plaintiffs’ First Claim for Relief.³ Its caption declares it to be a claim for “[v]iolation of ORS 659.510, 659.035, and 659.530 * * * ” Plaintiffs’ citation to ORS 659.510 and ORS 659.035 supports the contention that, although violation of ORS 659.510 provided the basis for the first claim for relief, the vehicle for their relief was ORS 659.035, which lists, as an unlawful employment practice, “violation of] ORS 659.510.” Had plaintiffs simply asserted a claim under the whistleblower law itself, they would not have cited ORS 659.035 at all. The specifications within the First Claim for Relief and plaintiffs’ prayer farther support Tomitz’s argument. Plaintiffs explicitly characterized defendant’s actions as “unlawful employment practice[s],” using terms that are contained in ORS 659.035 but not ORS 659.510 or ORS 659.530.

Viewing the complaint as a whole, then, we conclude that Tomitz alleged that defendant violated the unlawful employment practices statute, ORS 659.035, in one of the ways specified in that statute, that is, by violating ORS 659.510. The plain meaning of ORS 659.035 cannot support defendant’s theory that, as a matter of statutory construction, when violation of ORS 659.510 serves as a basis for relief for ORS 659.035, the claim is governed by the 90-day statute of limitation in ORS 659.530. In declaring that it is an unlawful employment practice for a “public employer to violate ORS 659.510,” ORS 659.035(l)(b) simply specifies that a whistleblower violation is one form of prohibited conduct. It does not incorporate a separate statute of limitation for a claim based on violation of ORS 659.510 but brought under ORS 659.035.

We are not persuaded by defendant’s argument that the 90-day period must apply because it appears in a statute that is later and more specific than the statute in which the one-year limitation appears. The “later and more specific” maxim applies when statutes conflict. ORS 174.020(2). Applying the maxim necessarily renders one of the statutes — the older and more general — meaningless, and should therefore be used only when a conflict actually exists and cannot be avoided. Cadle Co. II v. Schellman, 126 Or App 372, 378, 868 P2d 773 (1994) (statutes on same subject should be interpreted so as to give effect to all). Here, the 90-day limitation under the whistleblower statute and the one-year limitation under the unlawful employment practices statute do not, in fact, conflict. As we interpret them, the 90-day limitation in ORS 659.530 applies to actions brought solely under that statute; when, as here, the action is brought under ORS 659.035, then the limitation period within that statute applies.

In sum, the one-year statute of limitation of ORS 659.121(3) governs. Under that statute, the limitation period runs from the time of the alleged violation. Tomitz’s claim was brought within one year of her termination, and so the trial court did not err in denying defendant’s motion to dismiss.

In its second assignment of error, defendant asserts that the trial court should have allowed the motion to dismiss plaintiffs’ common-law wrongful termination claims because they are precluded by the availability of an adequate statutory remedy. Defendant does not maintain, nor could it, that terminating an employee as retaliation for reporting safety violations is not an unlawful practice. Walsh v. Consolidated Freightways, 278 Or 347, 351, 563 P2d 1205 (1977) (“[E]mployers should not be allowed to discharge employees solely for complaining about safety problems.”). Rather, defendant bases its argument on the well-settled principle that wrongful termination serves as “an interstitial tort, designed to fill a remedial gap where a discharge in violation of public policy would be left unvindicated.” Dunwoody v. Handskill Corp., 185 Or App 605, 612, 60 P3d 1135 (2003). Thus, recourse to wrongful termination is available only in the absence of a remedy “adequate to protect both the interests of society * * * and the interests of employees * * Brown v. Transcon Lines, 284 Or 597, 612-13, 588 P2d 1087 (1978) (quoting Walsh, 278 Or at 352) (first omission in Walsh). Whether an existing statutory remedy is adequate in those respects depends on whether the statute demonstrates “the legislature’s intent not only to provide what it considered to be adequate remedies to an employe [e] such as the plaintiff, but by implication show a legislative intent to abrogate or supersede any common law remedy for damages.” Holien v. Sears, Roebuck and Co., 298 Or 76, 90-91, 689 P2d 1292 (1984). Thus, to succeed, defendant must demonstrate both that the remedy for violation of ORS 659.035 is adequate in comparison to the remedy available under a common-law tort action and also that the legislature intended the statute to abrogate the common law.

Defendant meets the first of those requirements. The statutory remedies available to plaintiffs under ORS 659.035(2) and (3) and ORS 659.121, the enforcement provisions of the general unlawful employment practices statute, include the right to “file a civil suit in circuit court for injunc-tive relief’ and to seek “other equitable relief as may be appropriate,” including “reinstatement * * * with or without back pay,” ORS 659.121(1); the right to seek “compensatory damages or $250, whichever is greater,” ORS 659.035(3); and, if the employee is the “prevailing party,” the right to request “costs and reasonable attorney fees at trial and on appeal,” ORS 659.121(1).

The general unlawful employment practices statute, then, allows the employee to vindicate the public interest by holding the employer accountable for practices that discourage the reporting of safety concerns. In addition, the statute provides for compensatory damages to rectify the harm done to the employee by the wrongful discipline or termination, vindicating the employee’s own private interests. See Holien, 298 Or at 90. The statutory remedies adequately compensate the successful plaintiff; a common-law wrongful termination action against a government body adds no additional remedies.⁴

Defendant argues that this fact alone supports the inference that the legislature intended the statutory remedy to supersede the common law. We considered that question under a previous version of the statute, ORS 659.035 (1987),⁵ which did not authorize an aggrieved party to seek compensatory damages. We held that, when the legislature initially enacted ORS 659.035,

“[t]here is no indication that * * * the legislature was aware of or intended to abrogate any common law right of action that an employe [e] might have against an employer for a retaliatory discharge. We will not read such a limitation into the statute without its containing a clear statement to that effect. We also conclude that the statutory remedy is inadequate.”

McCool v. Hillhaven Corporation, 97 Or App 536, 540, 777 P2d 1013, rev den, 308 Or 593 (1989). Since McCool was decided, the legislature amended ORS 659.035 to add paragraph (l)(b), which makes violation of the whistleblower law an unlawful employment practice, and subsection (3), which permits an aggrieved employee to seek compensatory damages against an employer who engages in that practice. That amendment, however, satisfies only one of the factors that underlie our McCool decision: adequacy of remedy. The amendments do not address the other factor, “legislative intent to abrogate or supersede any common law remedy for damages,” as required under Holien and restated in McCool.

Defendant contends that we need not address the second factor, because whenever a statute provides an adequate remedy, that fact alone conclusively proves that the legislature intended to supersede the common law. Farrimond v. Louisiana-Pacific Corp., 103 Or App 563, 798 P2d 697 (1990), appears to lend support to that contention. In that case, the employer allegedly violated former ORS 659.410(1) by terminating the plaintiff in retaliation for filing a workers’ compensation claim. The plaintiff brought an action under that statute and the common law of wrongful termination. The trial court dismissed the common-law claim on the ground that the statute was exclusive, and we affirmed. We held:

“Although the statute does not expressly state that it is intended to supersede the common law remedy, the legislature’s adoption of virtually all remedies that would have been available at common law lead us to conclude that it intended the statutory remedy to be exclusive.”

Farrimond, 103 Or App at 567.

However, Farrimond does not help defendant here. The case might apply when a plaintiff claims violations of the common law and of ORS 659.410(1) regarding retaliation for filing a workers’ compensation claim; the statute is silent with respect to the legislature’s intent and, in the absence of an explicit statement, the existence of adequate remedies can be seen implicitly to establish exclusivity. The public employee whistleblower statute, however — unlike the statute protecting workers’ compensation claimants — does contain an explicit statement of legislative intent: It provides that the statute is “not intended to * * * [Restrict or impair any judicial right of action an employee or an employer has under existing law.” ORS 659.515(6). That language establishes that the legislature clearly and affirmatively expressed its intention that the statutory claim not supersede common-law claims.

Further, the legislative history indicates an intent to preserve a plaintiffs right to bring a common-law wrongful termination action. Senate Bill (SB) 1051 (1989), the original whistleblower law, came out of the Senate Labor Committee. The committee chair, Senator Grattan Kerans, when discussing the provision codified in ORS 659.515(6), stated that it would allow a plaintiff who was terminated in retaliation for whistleblowing to “check right into wrongful discharge.” Tape Recording, Senate Labor Committee, SB 1051, Apr 24, 1989, Tape 118, Side A (statement of Sen Grattan Kerans). Thus, aggrieved whistleblower plaintiffs were explicitly permitted to sue in tort.⁶ Accordingly, plaintiffs’ wrongful termination claims were not legally barred due to the existence of an alternative statutory cause of action. The trial court’s denial of defendant’s motion to dismiss was not error.

In its third assignment of error, defendant asserts that the trial court should have granted defendant’s motion to dismiss Olsen’s claim for assault and each plaintiffs claim for negligence because the workers’ compensation system provides plaintiffs’ exclusive remedy. That exclusivity, defendant contends, flows from ORS 656.018,⁷ ORS 30.265(3)(a),⁸ and the Employer Liability Law, ORS 654.305 to 654.336, as construed in Trout v. Liberty Northwest Ins. Corp., 154 Or App 89, 961 P2d 235 (1998).⁹ Accepting as true all well-pleaded allegations in the complaint and giving plaintiff the benefit of all favorable inferences that may be drawn from the facts alleged, Granewich v. Harding, 329 Or 47, 51, 985 P2d 788 (1999), we conclude that the trial court did not err.

The outcome of the parties’ dispute depends on the scope of the Supreme Court’s decision in Smothers v. Gresham Transfer, Inc., 332 Or 83, 23 P3d 333 (2001), declaring that, in some circumstances, application of the workers’ compensation exclusivity provision in ORS 656.018 denies workers a remedy for injuries arising out of and in the course of employment and therefore violates Article I, section 10, of the Oregon Constitution.¹⁰ In Smothers, the plaintiff suffered lung damage at work due to chemical exposure attributable to his employer’s negligence. Because the exposure occurred in the course and scope of his employment, he filed a workers’ compensation claim — his exclusive remedy under ORS 656.018. However, because his on-the-job exposure was not the “major contributing cause” of his occupational disease, the disease was not compensable within the workers’ compensation system. ORS 656.802 (no recovery for worker unless employment conditions were major contributing cause of disease); Smothers, 332 Or at 87. When he subsequently filed a negligence action — under which he could have received damages from his employer even if his work exposure was not the major contributing cause of his disease — the defendant invoked ORS 656.018, arguing that workers’ compensation was the plaintiff’s only avenue of redress. The plaintiff replied that compelling him to bring what would be a viable common-law negligence action in a forum that provided him no relief, and only in that forum, denied him his right to a remedy under Article I, section 10. The trial court rejected that argument and granted the defendant’s motion to dismiss. Id. at 86. This court affirmed. Smothers v. Gresham Transfer, Inc., 149 Or App 49, 941 P2d 1065 (1997).

The Supreme Court reversed. It held that the legislature could not abolish a common-law cause of action that was recognized when the remedy clause was included in the original Oregon Constitution in 1857 unless the law provided a constitutionally adequate substitute remedy. Smothers, 332 Or at 124. Applying that rule to the facts, the court held that the exclusivity provision could not constitutionally be applied. Examining early cases, the court concluded that, in 1857, the common law of Oregon would have provided a remedy to a worker who had been injured by the negligence of his employer in failing to provide a safe workplace. Id. at 131. It further concluded that, because of the “major contributing cause” rule, the workers’ compensation system no longer provided an adequate remedy for a class of those workers: those whose injury was caused in part, but not major part, by the employer. The court summarized as follows:

“Based on our analysis of the remedy clause of Article I, section 10, we conclude that determining whether the exclusive remedy provisions of ORS 656.018 (1995) violate that clause involves a case-by-case analysis. The first inquiry is whether a workers’ compensation claim alleges an injury to an ‘absolute’ common-law right that the remedy clause protects. If it does, and the claim is accepted and the worker receives the benefits provided by the workers’ compensation statutes, then the worker cannot complain that he or she has been deprived of a remedial process for seeking redress for injury to a right that the remedy clause protects. Neither can the worker complain that he or she has been deprived of a remedial process if a compensation claim is denied because the worker is unable to prove that the work-related incident was a contributing cause of the alleged injury, which is what a plaintiff would have had to prove in a common-law cause of action for negligence. However, if a workers’ compensation claim for an alleged injury to a right that is protected by the remedy clause is denied because the worker has failed to prove that the work-related incident was the major, rather than merely a contributing, cause of the injury, then the exclusive remedy provisions of ORS 656.018 (1995) are unconstitutional under the remedy clause, because they leave the worker with no process through which to seek redress for an injury for which a cause of action existed at common law.”

Id. at 135.

Plaintiff contends that Smothers stands for the broad proposition that no statute limiting an injured worker’s remedies to those that he or she can obtain from the workers’ compensation system can constitutionally be applied if the workers’ compensation system does not afford any remedy at all and a common-law cause of action would afford one. Defendant, on the other hand, would limit Smothers to its particular facts. The case, according to defendant, “carved out a very limited exception to the exclusive remedy provisions”: the provision cannot be applied against a plaintiff whose otherwise meritorious negligence claim against the employer is noncompensable because the plaintiff can “not establish that [the employment] was the major contributing cause of his injury or disease.” Thus, defendant argues, even though plaintiff Olsen’s workers’ compensation claim was denied, she was nonetheless barred by ORS 656.018 from bringing a negligence action because the denial was not based on the “major contributing cause” rule; it was based, rather, on other disqualifying factors.

Defendant’s interpretation of Smothers cannot withstand scrutiny. It is true that the opinion in that case is narrowly written to avoid deciding issues not raised by the facts. It does so, however, only after articulating the general principles that lead to, and compel, the particular outcome. Our task is not to await the Supreme Court’s treatment of other particular factual situations, but to apply the Supreme Court’s reasoning to such situations as they arise and to the extent that they do not involve significant distinctions. The relevant foundational principles underlying the holding in Smothers are these: First, Article I, section 10, prohibits the legislature from eliminating a common-law cause of action for injury to a person unless there is a substitute process for obtaining an adequate remedy in lieu of the remedy that the common law provided for that injury. Id. at 124. Second, at common law, a worker had a cause of action for negligence, and hence a remedy for injury, against an employer for failure to provide a safe workplace. Id. at 131. Third, “workers’ compensation law no longer provides a remedy for some wrongs or harms occurring in the workplace for which a common-law negligence cause of action had existed when the drafters wrote the Oregon Constitution in 1857.” Id. at 134. Those precepts lead inevitably to the conclusion that any legislation limiting a worker who alleges negligence against his or her employer for failure to provide a safe workplace to the remedies afforded by the workers’ compensation system cannot constitutionally be applied when the workers’ compensation system provides no remedy at all.

That being the case, the trial court did not err in denying defendant’s motion to dismiss. Plaintiffs’ complaint did, as defendant asserts, allege injuries arising from and in the course of their employment. Defendant’s answer raised the exclusivity provisions as an affirmative defense. However, the pleadings did not establish the merit of defendant’s defense; to prevail under Smothers, defendant needed to assert and prove that the exclusivity provisions applied against defendants under the facts of this case — that is, that plaintiff would receive an adequate remedy within the workers’ compensation system. At the time of defendant’s ORCP 21 motion to dismiss, that issue remained unresolved. The trial court therefore did not err in denying the motion.¹¹

Further, that is the only ruling that is properly before us. One of defendant’s “Questions Presented on Appeal” is the following:

“Did the trial court err in denying Defendant’s motions (Rule 21 Motion, Motion for Summary Judgment, Motion for Directed Verdict, Motion for Judgment Notwithstanding the Verdict) to dismiss Plaintiff Olsen’s assault claim, each Plaintiffs negligence claim and each Plaintiffs claim under the Employer Liability Act * * * on the ground that each of these claims is barred by [various exclusive remedy provisions]?”

The actual assignment of error, however, specifies the trial court’s denial of only “Defendant’s motions to dismiss” various claims. It did not “specify the stage in the proceedings when the question or issue presented by the assignment of error was raised in the lower court,” ORAP 5.45(4)(a)(i), nor did it “set out pertinent quotations of the record where the question or issue was raised and the challenged ruling was made, together with reference to the pages of the transcript or other portions of the record,” ORAP 5.45(4)(a)(ii). If defendant intended to challenge the denial not only of the motion to dismiss under ORCP 21, but also the denial of the other motions (summary judgment, directed verdict, judgment notwithstanding the verdict (JNOV)), it did not do so effectively, that is, by “identifying] precisely the legal, procedural, factual, or other ruling that is being challenged.” ORAP 5.45(3). Nor did it comply with the requirement that “[e]ach assignment of error shall be separately stated under a numbered heading,” ORAP 5.45(2), or the requirement that “each assignment of error shall identify the applicable standard or standards of review,” ORAP 5.45(5). Further, defendant’s brief presents no argument regarding the asserted insufficiency of the evidence actually adduced at trial to support plaintiffs allegations; defendant’s entire argument focuses on the legal sufficiency of the pleadings. We therefore treat the assignment of error as relating only to the motion to dismiss under ORCP 21, and we conclude, as noted above, that the trial court did not err in denying it.¹²

In its fourth assignment of error, defendant argues that, because plaintiffs failed to “exhaust administrative remedies” available to them under their collective bargaining agreement (CBA) and under workers’ compensation law, the trial court should have granted defendant’s motion to direct a verdict in its favor on plaintiffs’ tort claims. In reviewing the denial of defendant’s directed verdict motion, we consider the evidence, including inferences, in the light most favorable to plaintiffs, and we affirm unless “there is no evidence from which the jury could have found the facts necessary” to support the verdict. Brown v. J. C. Penney Co., 297 Or 695, 705, 688 P2d 811 (1984). Here, evidence supports the jury’s verdict on each tort claim.

Defendant’s arguments are misguided, each in a different way. Regarding defendant’s argument involving the CBA, “exhaustion” refers to a requirement that the parties avail themselves of contractual dispute resolution procedures and resort to litigation only if those procedures fail. E.g., Vaughn v. Pacific Northwest Bell Telephone, 289 Or 73, 89, 611 P2d 281 (1980) (“exhaustion” requirement designed to encourage use of grievance procedures within a CBA). Additionally, an “exhaustion” requirement might be imposed by statute. Here, we note first that Reese was not a union member and therefore not a party to any CBA. Regarding Olsen and Tomitz, we conclude that defendant failed to prove its affirmative defense for two reasons. First, the only page of the CBA included in the record authorizes the County Board of Commissioners to resolve complaints “relating to employment conditions and relationships.” It provides no indication that the CBA could resolve the tort claims that plaintiffs ultimately litigated. See id. at 90 (no exhaustion requirement where CBA does not address claims actually litigated). Second, the record demonstrates that, before the litigation began, Olsen and Tomitz did avail themselves of the three-step dispute resolution process outlined in the CBA and received no relief.

Regarding defendant’s exhaustion claim based on the workers’ compensation process, defendant misconceives what “exhaustion of administrative remedies” means: a claimant cannot judicially challenge an allegedly erroneous agency process or its allegedly erroneous outcome until he or she has followed the agency’s own mechanisms of challenge. It is a “general rule of administrative law” that, regarding matters within the administrative agency’s jurisdiction, “ ‘[¡Judicial review is only available after the procedure for relief within the administrative body itself has been followed without success.’ ” Mullenaux v. Dept. of Revenue, 293 Or 536, 539, 651 P2d 724 (1982) (quoting Miller v. Schrunk, 232 Or 383, 388, 375 P2d 823 (1962)); Ayres v. Board of Parole, 194 Or App 429, 434, 97 P3d 1 (2004). Plaintiffs were not using the judicial system to challenge the outcome of an administrative process; therefore, no “exhaustion” issue exists.

Defendant’s fifth assignment of error challenges the trial court’s denial of its motion for a directed verdict on Olsen’s assault claim. Again, we must affirm unless the record lacks any evidence from which the jury could have found the facts necessary to support its verdict. Brown, 297 Or at 705.¹³

As an initial matter, we note that defendant mis-characterizes the basis upon which Olsen argued defendant’s liability for assault. Rather than arguing solely that defendant was liable vicariously for the actions of its client, Olsen also argued that defendant was directly liable for G’s assault. Under that theory, we affirm the court’s denial of defendant’s motion.

Assault is defined as “an intentional attempt to do violence to the person of another coupled with present ability to carry the intention into effect.” Cook v. Kinzua Pine Mills Co. et al., 207 Or 34, 48, 293 P2d 717 (1956). Olsen’s theory of the case, set out in the pleadings and developed at trial, was that defendant, by putting G in Park Place under the supervision of plaintiffs, intentionally attempted to use G to inflict violence on Olsen. G had the ability to do so. This theory finds support in the record adequate to overcome defendant’s motion for a directed verdict.

The jury heard testimony that G was admitted to Park Place even though he had a history of violence against staff in other, secure psychiatric hospitals, and only after defendant evicted G from another county-rim psychiatric facility because he assaulted another client. On the day defendant admitted G, it knew that G had not taken his medications. G’s intake form noted “staff concern about his being a threat.” Once admitted, G continued his violent outbursts, destroying furniture and attempting to break a window. He claimed that “he killed people in 1877,” spoke of skinning babies and burning them alive, and repeatedly muttered, “kill,” “die,” and “murder.” In a facility-guided outing to a park, G frightened park visitors and other clients. Plaintiffs repeatedly asked defendant to transfer G because he posed a danger to others, but defendant refused, in violation of its own “zero tolerance” aggression policy.

On the day of G’s outburst, G’s psychiatrist examined him and wrote, “I don’t think it is safe for [G] to be here.” A staff member then telephoned the manager of Park Place, Norman, to recount G’s violent behavior, report the psychiatrist’s assessment, and recommend an immediate transfer because, in her opinion, an assault was imminent. Norman refused to take action, but decided to think about the issue. He then went to lunch. Within an horn, G charged Olsen in a threatening manner, and in doing so, committed the alleged assault.

That evidence is sufficient to withstand a motion for directed verdict on the assault claim. By abdicating its authority to restrain G and refusing to transfer him despite its own zero tolerance aggression policy, defendant affirmatively placed G in a setting where he could freely harm others, particularly female staff whom G was known to target. Further, in light of the gravely strained relations between management and employees, the jury could have determined that G was purposefully loosed on the women who had often complained about lax safety measures and whose complaints were met with efforts to silence them and termination. The evidence, when viewed as a whole, permitted the jury to determine that, by retaining G despite his violent outbursts and by providing him with potential victims and the opportunity to do harm, defendant, through its agents, intentionally attempted to inflict harm on plaintiffs. Cf. Walthers v. Gossett, 148 Or App 548, 553-54, 941 P2d 575 (1997) (where complaint alleged that defendant corporation “scheduled dental appointments for minor female patients, and that it furnished the examination room, facilities and equipment, providing Gossett with both his victims and the opportunity to molest them,” and if that corporation, through its agents, intended tortious result, facts would be sufficient to establish liability of corporation for actions of orthodontist under theory that corporation aided and abetted orthodontist’s battery).

Defendant raises two arguments against this conclusion. First, it argues that G lacked the requisite level of intent to inflict harm. Defendant made that argument for the first time in its motion for a JNOV; for that reason, we need not consider it here. Wampler v. Sherwood, 281 Or 261, 270, 574 P2d 319 (1978) (motion for JNOV cannot be based on grounds not raised by motion for directed verdict). In any event, G’s mental state is not relevant; under Olsen’s theory of liability, it is the mental state of defendant, not of its human instrumentality, that matters. Defendant, under Oregon law, “may be liable for * * * another’s torts under any one of the three theories identified in Restatement section 876.” Granewich, 329 Or at 55. One such theory is as follows:

“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

* * * *

“(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself[.]”

Restatement (Second) of Torts § 876 (1979). The comment to section 876 explains that the rule applies whether or not “the other” (here, G) “knows his act is tortious.” Restatement at § 876 comment b.

Second, defendant contends that no evidence supports the inference that G attacked (or intended to attack) Olsen; the facts show that he burst into a small room occupied by Olsen and another employee, Lantz, and that only Lantz was the immediate object of G’s outburst. Again, however, it is defendant’s intent, not G’s, that matters, and, as we conclude above, the evidence suffices to support the inference that defendant loosed G on all of its employees with the intention that G inflict violence on them and that Olsen was harmed as a result.

In its sixth assignment of error, defendant asserts that the trial court should have granted its motion for a new trial. Defendant asserted in its motion that a new trial was warranted because the trial court should have dismissed Olsen’s assault claim and each plaintiffs negligence claim, and that by failing to dismiss those claims, the trial court improperly permitted the jury to hear unfairly prejudicial evidence concerning G’s outburst. As explained above, however, the trial court did not err in denying defendant’s motions to dismiss plaintiffs’ tort claims. Insofar as defendant assigns error to the admission of evidence concerning G, the assignment is not well taken. Thus, we have rejected the premise on which this assignment of error depends.

Affirmed.

1 Unless otherwise indicated, all statutory references are to the 1999 versions, which govern this litigation. As noted below, many of the key statutory provisions involved in this litigation have been repealed or amended.

As more fully explained below, ORS 659.035 prohibits all employers from, among other things, retaliating against employees who report certain violations. Among the retaliatory actions that are prohibited by ORS 659.035 are violations of the “whistleblower statute,” ORS 659.510 to 659.535. ORS 659.035(l)(b). Thatstat-ute prohibits, retaliatory action by public employers against employees who disclose, among other things, evidence of mismanagement and gross waste of funds.

2 In 2001, the Legislative Assembly amended the whistleblower statute by deleting the 90-day statute of limitation and replacing it with a one-year statute instead. Or Laws 2001, ch 621, §§ 2, 45. The new provision is not retroactive and does not apply to this case.

3 Although both Tomitz and Olsen asserted the first claim for relief, Olsen did not prevail; only Tomitz’s claim is at issue on appeal.

4 Punitive damages are not available in a wrongful termination action against a public employer, nor are they available under ORS 659.035 to 659.535.

5 ORS 659.035 (1987) provided:

“(1) It is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employe[e] with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employe[e] has in good faith reported possible violations of ORS chapter 441 or of ORS 443.400 to 443.455 or has testified in good faith at an unemployment compensation hearing or other hearing conducted pursuant to ORS chapter 657.

“(2) Complaints may be filed by employees, and this section shall be enforced by the Commissioner of the Bureau of Labor and Industries in the same manner as provided in ORS 659.040 to 659.110 and 659.121 for the enforcement of an unlawful employment practice. Violation of subsection (1) of this section subjects the violator to the same civil and criminal remedies and penalties as provided in ORS 659.010 to 659.110 and 659.121.”

6 The 2001 Legislative Assembly amended the whistleblower law with the apparent effect of eliminating the problem of double recovery. It did so by repealing ORS 659.035(3) and ORS 659.530. Or Laws 2001, ch 621, §§ 40, 45. Now, an aggrieved plaintiff can seek compensatory damages under ORS 659A.230(3); that statute, in turn, allows plaintiffs to seek common-law remedies. Thus, common-law remedies are now incorporated into the statutory ones.

7 ORS 656.018 provides, in part:

“(l)(a) The liability of every employer who satisfies the duty required by ORS 656.017(1) is exclusive and in place of all other liability arising out of injuries, diseases, symptom complexes or similar conditions arising out of and in the course of employment that are sustained by subject workers * * *.

“(2) The rights given to a subject worker * * * under this chapter * * * are in lieu of any remedies they might otherwise have * * * against the worker’s employer under * * * common law or statute!.]

* sj: * #

“(6) The exclusive remedy provisions and limitation on liability provisions of this chapter apply to all injuries and to diseases, symptom complexes or similar conditions of subject workers arising out of and in the course of employment whether or not they are determined to be compensable under this chapter.”

8 ORS 30.265(3)(a) confers immunity on “every public body” for “[a]ny claim for injury to or death of any person covered by any workers’ compensation law.”

9 In that case, the court noted:

“The Workers’ Compensation Act now provides the exclusive remedy for most employees. ORS 656.018. Thus, only employees not covered by the Workers’ Compensation Act * * * may now bring an action under the [Employer Liability Law] against their employer.”

Trout, 154 Or App at 98 n 3.

10 Article I, section 10, provides, in part, that “every man shall have remedy by due course of law for injury done him in his person, property, or reputation.”

11 As does defendant, the dissent argues that plaintiffs’ claims are barred by the exclusivity provision of ORS 656.018 and by the immunity conferred by ORS 30.265(3). 204 Or App at 45-51 (Edmonds, P. J., dissenting). However, the dissent does not engage the argument that, to the extent those statutes would deprive plaintiffs of a common-law remedy without providing an adequate substitute, they violate Article I, section 10, of the Oregon Constitution and cannot serve to immunize defendant.

12 We note, however, that the parties adduced facts that, along with inferences drawn from them, would allow a jury to conclude that (1) plaintiff Olsen filed a workers’ compensation claim and it was denied because it did not result in a “diagnosed condition”; and (2) plaintiffs Reese and Tomitz did not file workers’ compensation claims, but their claims would have been substantially identical to Olsen’s and therefore denied as well. See Krushwitz v. McDonald’s Restaurants, 323 Or 520, 525 n 3, 919 P2d 465 (1996) (court refuses to dismiss tort action based on allegedly work-related injury because doing so “would serve no constructive purpose”).

13 In its “Questions Presented on Appeal,” defendant indicates that it will challenge the denial not only of its motion for a directed verdict, but also of its motion for a JNOV. Like its assignment of error based on the exclusivity of workers’ compensation remedies, however, defendant’s actual assignment on the assault claim refers to the denial of its “motions to dismiss,” without citation to the record and in violation of several rules of appellate procedure. Unlike the argument in its third assignment of error, however, defendant’s argument in this assignment clearly indicates that it challenges the sufficiency of Olsen’s proof, not the sufficiency of its pleadings. We therefore treat the assignment as relating to the denial of the motion for a directed verdict. Denial of a motion for JNOV is not reviewable on the grounds of insufficient evidence. Burke v. American Network, Inc., 95 Or App 274, 277, 768 P2d 924 (1989).