McClusky v. City of North Bend ( 2024 )

No. 231 April 17, 2024 1
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Will McCLUSKY,
Plaintiff-Appellant,
v.
CITY OF NORTH BEND,
an Incorporated City of the State of Oregon,
Defendant-Respondent.
Coos County Circuit Court
18CV20329; A177073
Andrew E. Combs, Judge.
Argued and submitted April 10, 2023.
Quinn E. Kuranz argued the cause for appellant. Also on
the briefs was The Office of Q.E. Kuranz, AAL, LLC.
Tracy M. McGovern argued the cause for respondent.
Also on the brief were Travis A. Merritt and Frohnmayer,
Deatherage, Jamieson, Moore, Armosino & McGovern, P.C.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Judgment of dismissal as to Claims 1 and 2 reversed and
remanded; otherwise affirmed.
2 McClusky v. City of North Bend
Cite as 332 Or App 1 (2024) 3
ORTEGA, P. J.
This case is before us for the second time on plain-
tiff’s appeal from a judgment dismissing his claims of
unlawful employment discrimination and whistleblowing.
Plaintiff assigns error to the trial court’s grant of summary
judgment for defendant City of North Bend as to all four of
his claims on various grounds.1 We conclude that the trial
court erred in granting summary judgment for defendant
as to Claim 1 (ORS 659A.030(1)(f)), because there is a genu-
ine issue of material fact as to whether plaintiff’s protected
activity was a substantial factor in defendant’s decision to
terminate his employment. We also conclude that the trial
court erred in granting summary judgment for defendant
as to Claim 2 (ORS 659A.199), because plaintiff’s conduct
constituted a “report” of an alleged violation of state law
within the meaning of ORS 659A.199 and there is a gen-
uine issue of material fact as to plaintiff’s subjective good
faith belief in making that report. We further conclude that,
on this record, defendant may be liable as plaintiff’s joint
employer under ORS 659A.199 and that the coemployer’s
alleged biased motive may be imputed to defendant under a
“cat’s paw” theory. Finally, we conclude that the trial court
did not err in granting summary judgment for defendant as
to Claim 3 (ORS 659A.203(1)(b)(A), (B)) and Claim 4 (ORS
659A.203(1)(d)), because plaintiff failed to produce evidence
that he reported illegal or other inappropriate conduct by
defendant North Bend. We therefore reverse the judgment of
dismissal as to Claims 1 and 2, remand for further proceed-
ings, and otherwise affirm.
1
Plaintiff raises three assignments of error, and only the first identifies the
precise legal ruling (the grant of summary judgment for defendant as to his first
claim) he challenges on appeal; the second and third identify various “holdings”
of the trial court in its summary judgment order, which we understand to chal-
lenge the court’s grant of summary judgment for defendant as to plaintiff’s sec-
ond, third, and fourth claims. ORAP 5.45(3) (“Each assignment of error must
identify precisely the legal, procedural, factual or other ruling that is being chal-
lenged.”); see, e.g., Marc Nelson Oil Products, Inc. v. Grim Logging Co., 199 Or App
73, 75 n 1, 110 P3d 120, adh’d to as modified on recons, 200 Or App 239, 115 P3d
935 (2005) (“Assignments of error * * * are to be directed against rulings by the
trial court, not against components of the trial court’s reasoning or analysis that
underlie that ruling.”).
4 McClusky v. City of North Bend
I. STANDARD OF REVIEW
The trial court must grant a motion for summary
judgment when
“the pleadings, depositions, affidavits, declarations and
admissions on file show that there is no genuine issue as
to any material fact and that the moving party is entitled
to prevail as a matter of law. * * * The adverse party has
the burden of producing evidence on any issue raised in
the motion as to which the adverse party would have the
burden of persuasion at trial.”
ORCP 47 C. No genuine issue of material fact exists when
“no objectively reasonable juror could return a verdict for the
adverse party on the matter that is the subject of the motion
for summary judgment.” Id. We review an order granting
summary judgment for errors of law, viewing the facts and
all reasonable inferences that may be drawn from them in
favor of the nonmoving party, who in this case is plaintiff.
Boyd v. Legacy Health, 318 Or App 87, 88-89, 507 P2d 715(2022). We state the facts in accordance with that standard.
II. FACTS
We begin with the relevant undisputed facts recounted
in our prior opinion:
“[T]his litigation arises from North Bend’s administrative
involvement in plaintiff’s employment and termination as
Technology Systems Manager for the Coos County Library
Service District (CCLSD). The CCLSD is governed by
a Master Plan, which was approved by the Coos County
commissioners in 1992 and provides that each city retains
control of daily library operations and is responsible for
administering its own library services. The Master Plan
mandates that shared library services (catalogues, data-
bases, information technology services, outreach programs,
etc.) are administered by the CCLSD Extended Services
Office (ESO).
“To manage CCLSD activities, Coos County contracts
through an intergovernmental agreement with the City of
Coos Bay. Under that agreement, Coos Bay Public Library
houses the ESO and employs the ESO Director. The direc-
tor reports to the CCLSD Advisory Board, who is appointed
by the Coos County Board of Commissioners.
Cite as 332 Or App 1 (2024) 5
“In support of the CCLSD, the cities of Coos Bay and
North Bend entered into an intergovernmental agreement.
Under the terms of that agreement, North Bend agreed to
hire the CCLSD Technology [Systems] Manager and house
that position in the City of North Bend’s public library. The
City of Coos Bay reimbursed North Bend for 100 percent
of those costs (salary, benefits, and office overhead costs)
using the ESO budget.”
McClusky v. City of North Bend, 308 Or App 138, 139-40, 481
P3d 431 (2020), rev den, 368 Or 37 (2021) (McClusky I).
North Bend hired plaintiff as CCLSD Technology
Systems Manager in 2015. North Bend managers and human
resources representatives worked with CCLSD employ-
ees, including the ESO director, to evaluate and supervise
plaintiff. In April 2017, plaintiff received approval from the
CCLSD Advisory Board to purchase an email server with
budget funds. Minutes from that meeting also show that
Jennifer Croft was set to start as the CCLSD ESO director
later that month.
In June, Croft sent a memo to Coos County library
directors and plaintiff announcing her plan to migrate
CCLSD’s network to G Suite, a cloud-based service by Google
that provides email hosting, among other networking appli-
cations. The migration meant abandoning plaintiff’s plan
to purchase an in-house email server and contracting with
third parties to provide services on an ongoing basis. In
July, plaintiff attended an IT meeting with Croft, North
Bend Library Director Gary Sharp, North Bend Human
Resources (HR) Manager and City Recorder Rene Collins,
and another IT employee, who openly recorded the meeting.
During the meeting, plaintiff expressed concerns to Croft
about implementation of the G Suite migration and asked
Croft if she had sought the approval of the CCLSD Advisory
Board for the migration. Croft responded that she had called
the board chair and had sent out emails to inform the board
of her plan—which she maintained was within the scope of
her authority—but confirmed that “we did not have an offi-
cial meeting.” Plaintiff expressed his view that, “according
to the Master Plan and bylaws, this stuff is supposed to go
up to the board in an official meeting to be talked about and
approved before moving forward on it” and that Croft was
6 McClusky v. City of North Bend
“bypassing * * * the laws of the district.” Croft proceeded
with the plan to migrate to G Suite with an initial launch
on July 31.
In mid-August, what the parties refer to as “the
Big Book of IT incident” occurred. “The Big Book of IT” is
a binder that contains extensive information about CCLSD
computer network and IT infrastructure. Croft directed
plaintiff to turn over the Big Book of IT so that she could
give it to an outside contractor she had hired to perform
work on CCLSD systems in the following weeks while plain-
tiff was out of the office. Plaintiff was working onsite at the
Bandon library and initially agreed to drop off the book to
Croft when he returned to Coos Bay. Later that afternoon,
however, plaintiff sent a text message to Croft, informing
her that he would not be handing over the Big Book of IT
and that she would need to first seek approval from the
CCLSD Advisory Board. Plaintiff then contacted two library
directors to inform them of the risks of giving an outside
contractor the highest levels of access to CCLSD’s servers,
service accounts, and patron information. Croft and Collins,
the North Bend HR manager, together called plaintiff and
told him that, if he did not have the book on Croft’s desk by
6:00 p.m., he would face disciplinary action. Plaintiff com-
plied and then went on leave until September 5.
On August 25, plaintiff filed a complaint with the
Bureau of Labor and Industries (BOLI) alleging, among
other things, that he had complained to Sharp and other
library directors about a lack of policies for his position,
misappropriation of budget funds, and violations of record
retention rules, and that North Bend had retaliated against
him by changing his duties, taking control of the IT depart-
ment, and making changes without communicating them.
On August 29, Croft emailed Sharp her proposed
edits on plaintiff’s drafted employee performance review.
The draft review, dated September 5, meant to be signed by
Croft, Sharp, and plaintiff, included a “Work Improvement
Plan” in which plaintiff’s work would be “closely monitored”
for 90 days and required him to demonstrate “immediate
and sustained improvement” in specific areas.
Cite as 332 Or App 1 (2024) 7
On September 1, North Bend received a copy of
plaintiff’s August 25 BOLI complaint. That same day, North
Bend also received a letter from an attorney on behalf of
plaintiff providing notice of his BOLI complaint and warn-
ing that “any further action taken against [plaintiff would]
be considered as retaliation for his legitimate complaints”
constituting whistleblowing, even if the BOLI complaint
was ultimately deemed unfounded.
When plaintiff returned to work on September 5,
he received a “Notice of Potential Termination” signed by
North Bend City Administrator Terrence O’Connor, Croft,
and Sharp. The notice stated that plaintiff’s conduct sur-
rounding the Big Book of IT incident “violates the City of
North Bend employment policies and falls well below the
expectations that we have for the IT Manager position.”
Plaintiff submitted a written response, outlining his version
of the events surrounding the Big Book of IT incident.
Croft recommended that North Bend terminate
plaintiff, and, on September 6, O’Connor issued a “Notice
of Termination” on North Bend letterhead, in which he
explained that plaintiff had failed to show that he under-
stood how his conduct was improper or provide a reason to
believe that he would be able to improve his performance or
his strained work relationships. O’Connor verbally informed
plaintiff that, because of his BOLI complaint and attorney
letter, O’Connor could see that plaintiff was not interested
in repairing his work relationships and was only interested
in monetary gain.
Plaintiff asserted four claims against defendant
North Bend: discrimination under ORS 659A.030(1)(f)
(Claim 1), whistleblowing under ORS 659A.199 (Claim 2),
and public employee whistleblowing under ORS 659A.203
(1)(b)(A), (B) (Claim 3) and ORS 659A.203(1)(d) (Claim 4).
The trial court granted defendant’s motion for summary
judgment after it concluded that defendant was not plain-
tiff’s “employer.” In McClusky I, we held that, “as a matter of
law, North Bend reserved the right to control plaintiff and
was his employer for purposes of ORS chapter 659A.” 308
Or App at 145. On remand, defendant again moved for sum-
mary judgment on various grounds. The trial court granted
8 McClusky v. City of North Bend
summary judgment in favor of defendant on all four claims
and entered a general judgment of dismissal. This appeal
followed.
III. ANALYSIS
A. Claim 1: Discrimination - ORS 659A.030(1)(f)
Plaintiff’s first claim alleges a violation of ORS
659A.030(1)(f), which provides that “[i]t is an unlawful
employment practice * * * [f]or any person to discharge,
expel or otherwise discriminate against any other person
because that other person has opposed any unlawful prac-
tice, or because that other person has filed a complaint
* * *.” In granting summary judgment for defendant on that
claim, the trial court found that plaintiff’s “discharge was
the result of his insubordination and unprofessional conduct
surrounding the Big Book of IT incident.” The court there-
fore concluded that “no objectively reasonable juror could
return a verdict for plaintiff on this claim.”2
On appeal, plaintiff argues that the trial court
erred in granting summary judgment for defendant on this
claim because there is a genuine issue of material fact as to
causation between his protected activity and termination.
Plaintiff points to the evidence that, as of August 29, North
Bend’s plan was for plaintiff to return to work under a “Work
Improvement Plan,” that North Bend terminated plaintiff
five days after receiving his BOLI complaint and attorney
letter, and that O’Connor told plaintiff that his BOLI com-
plaint and attorney letter demonstrated that plaintiff was
not interested in repairing his working relationships.
We agree with plaintiff that there is a genuine issue
of material fact as to whether his protected activity was a
substantial factor in North Bend’s decision to terminate
2
The trial court further found that CCLSD and defendant were plaintiff’s
joint employers but that, to the extent that this claim alleges that North Bend
should be held liable for any unlawful acts by CCLSD, “North Bend did not know
and should not have known about any such unlawful acts.” We do not understand
plaintiff to advance a theory as to this claim that defendant should be jointly
liable for CCLSD’s conduct. Rather, we understand his theory for this claim to be
that defendant is directly liable for O’Connor’s conduct as defendant’s agent. We
therefore do not address defendant’s argument regarding joint employer liability
as to this claim.
Cite as 332 Or App 1 (2024) 9
his employment and that the trial court erred in granting
summary judgment for defendant on that basis. “Proof of a
causal connection between protected conduct and a materi-
ally adverse action can be established (1) indirectly, by show-
ing that the protected activity was followed closely by dis-
criminatory treatment * * * or (2) directly, through evidence
of retaliatory animus directed against a plaintiff by the
defendant.” Meyer v. Oregon Lottery, 292 Or App 647, 681-82,
426 P3d 89 (2018) (emphases in original; internal quotation
marks and citation omitted). “Oregon case law has not iden-
tified how ‘very close’ in time the discriminatory treatment
must follow the protected activity such that, by itself, the
timing raises an issue of fact regarding causation.” Id. at
682. But we have concluded that less than one month was
sufficient to establish causation. Medina v. State of Oregon,
278 Or App 579, 589-90, 377 P3d 626 (2016) (concluding that
a reasonable trier of fact could infer from the timing of the
disciplinary actions that they were the result of the plain-
tiff’s complaint).
Here, plaintiff produced indirect evidence of a
causal connection between his protected conduct and his
termination by showing that he was terminated five days
after North Bend received his BOLI complaint and attorney
letter. Plaintiff also produced direct evidence of a causal con-
nection between his protected conduct and his termination
by showing a retaliatory animus directed against plaintiff
by defendant: that O’Connor told him that the BOLI com-
plaint and attorney letter demonstrated that plaintiff was
not interested in repairing his working relationships, which
is one basis the Notice of Termination stated for terminat-
ing him.
In urging a different result, defendant first argues
that plaintiff’s activity was not protected by ORS 659A.030
because his BOLI complaint was not made in good faith.
However, defendant did not make that argument to the trial
court as a basis for granting summary judgment. We there-
fore do not address that argument further.
Defendant next argues that plaintiff failed to
establish causation because he conceded that he was fired
for the Big Book of IT incident. But we understand plaintiff
10 McClusky v. City of North Bend
to have conceded that the Big Book of IT incident is what
led Croft to recommend that defendant terminate plain-
tiff. The summary judgment record, however, reflects that
O’Connor made the ultimate decision to terminate plaintiff.
And whether plaintiff’s BOLI complaint and attorney letter
were a substantial factor in that decision is a factual ques-
tion for the jury for the reasons explained above. Plaintiff’s
concession has no bearing on that conclusion. Thus, the trial
court erred in granting summary judgment to defendant on
Claim 1.
B. Claim 2: Whistleblowing - ORS 659A.199
Plaintiff’s second claim alleges a violation of ORS
659A.199(1), which provides that
“[i]t is an unlawful employment practice for an employer to
discharge, demote, suspend or in any manner discriminate
or retaliate against an employee * * * for the reason that
the employee has in good faith reported information that
the employee believes is evidence of a violation of a state or
federal law, rule or regulation.”
The trial court granted summary judgment for
defendant on that claim for four independent reasons:
1) plaintiff failed to produce evidence that he ever made a
“report” of a violation; 2) plaintiff’s “report” concerned vio-
lation of CCLSD’s Master Plan and bylaws, which are not
“state or federal law, rule[s] or regulation[s]”; 3) plaintiff’s
“report” was not made “in good faith”; and 4) North Bend
should not be held liable for any unlawful acts by CCLSD
because “North Bend did not know and should not have
known about any such unlawful acts” and because an
imputed motive or “cat’s paw” theory did not apply, given
that the allegedly biased employee (Croft) was not subordi-
nate to the decision maker (O’Connor) or employed by the
same entity.
On appeal, plaintiff argues that the trial court
erred in granting summary judgment for defendant on his
second claim because there is a genuine issue of fact that he
in good faith reported violations of state law to Croft, specif-
ically, that plaintiff told Croft that her admission that she
decided to migrate to G Suite without first seeking approval
Cite as 332 Or App 1 (2024) 11
from the Advisory Board in an official meeting violated pub-
lic meetings law. See ORS 192.610 - 192.705. Plaintiff also
argues that the trial court erred in granting summary judg-
ment for defendant on this claim because defendant may
be liable for Croft’s conduct under three alternative theo-
ries: defendant and CCLSD were plaintiff’s joint employers,
Croft’s discriminatory motive may be imputed to defendant
under the “cat’s paw” doctrine, and North Bend aided and
abetted Croft’s unlawful discriminatory motive.
We conclude that plaintiff’s conduct constituted a
“report” of a violation of state law within the meaning of ORS
659A.199 and that there is a genuine issue of material fact
as to plaintiff’s subjective good faith belief in making that
report. We further conclude that, on this record, defendant
may be liable for Croft’s conduct under a joint employer or
an imputed motive theory. We reject without further discus-
sion plaintiff’s argument that aiding and abetting is a via-
ble theory on this record because, as he concedes, he failed
to plead that theory of liability. See ORS 659A.030(1)(g)
(“It is an unlawful employment practice * * * [f]or any per-
son, whether an employer or an employee, to aid, abet, incite,
compel or coerce the doing of any of the acts forbidden under
this chapter or to attempt to do so.”). The trial court there-
fore erred in granting summary judgment for defendant on
this claim.
We begin with whether plaintiff’s conduct consti-
tuted a “report” of a violation. Our decision in Bjurstrom
v. Oregon Lottery, 202 Or App 162, 120 P3d 1235 (2005), is
instructive. There, we construed the term “disclosure” in the
public employee whistleblowing statute, ORS 659A.203(1)(b),
to determine whether it protected disclosure within the
agency or department, as opposed to the popular conception
of a “whistleblower” as one who discloses internal miscon-
duct to an external entity. We first noted that the common
meaning of “disclose” is “to make known” or to “open up to
general knowledge.” Id. at 169 (quoting Webster’s Third New
Int’l Dictionary 645 (unabridged ed 2002)). We then observed
that the statute protects disclosure “without limitation” and
that statutory context “contemplated the possibility of retal-
iation against employees who voiced their complaints either
12 McClusky v. City of North Bend
within the agency or department, or to others outside.”
Id. After reviewing legislative history that confirmed our
understanding of the text and context, we concluded that
“disclosures” under ORS 659A.203(1)(b) “include reports of
wrongdoing within an agency or department.” Id. at 171.
Applying that construction to the plaintiff’s conduct in that
case, we held that instances where the plaintiff “voiced his
opinions” about mismanagement and personnel issues in
the workplace “to his coworkers and supervisors” were “dis-
closures” but ultimately were not protected whistleblowing
activity because none concerned “mismanagement.” Id. at
171-75.3
In Folz v. ODOT, 287 Or App 667, 404 P3d 1036
(2017), rev den, 362 Or 482 (2018), we applied Bjurstrom’s
understanding of “disclosures” and extended it to “reports”
within the meaning of ORS 659A.199.4 In Folz, the plain-
tiff was a human resources manager who supervised and
advised regional human resources managers. Id. at 669.
We concluded that the plaintiff’s conduct of “expressing her
concerns regarding the propriety of” and “proceeding with”
a proposed plan to discipline an employee to other human
resources decision makers was neither a “report” nor a “dis-
closure” protected by the whistleblowing statutes. Id. at
669-74. We reasoned that “the most she ha[d] established is
that she gave advice about an evolving personnel matter as
part of her day-to-day responsibilities as a human resources
professional and that she expressed those opinions to other
participants in that decision-making process as part of that
process.” Id. at 675 (emphasis in original). We emphasized
that, “[a]t the time of those discussions, no decision had been
reached as to how the situation would be handled; that was
the point of involving plaintiff in the discussions.” Id. at 674.
3
We also rejected the plaintiff’s “occasional general references” that his dis-
closures concerned the defendant’s violation of “rules” because he did “not identify
with any particularity what statements he is referring to or what rules [defen-
dant] supposedly violated” or “develop any argument on that subject.” Id. at 173.
4
Although we did not separately construe the term “report[ ]” in ORS
659A.199, which was enacted after our decision in Bjurstrom, see Or Laws 2009,
ch 524, § 2, we understand that term to be a synonym for “disclosure,” given
that Bjurstrom construed “disclosure” to be a “report” and the plain meaning of
“report” is synonymous with “disclosure.” See Webster’s at 1925 (defining the verb
“report” as “to give an account of : narrate, relate, tell”).
Cite as 332 Or App 1 (2024) 13
Returning to the facts of this case, we conclude that
plaintiff “reported” wrongdoing within CCLSD for purposes
of ORS 659A.199. At the July 2017 IT meeting, which was
attended by two of his supervisors as well as another IT
employee, plaintiff voiced his opinion that Croft had violated
the CCLSD Master Plan and bylaws by failing to seek and
gain the Advisory Board’s approval at an official public meet-
ing to migrate to G Suite. Although plaintiff also expressed
concerns with the propriety of the G Suite migration and
proceeding with that plan as part of the process of advising
Croft on its implementation, he expressed additional con-
cerns that Croft had made that decision in violation of the
CCLSD Master Plan and bylaws. Thus, while the purpose
of the IT meeting was to involve plaintiff in the discussion
about implementing the G Suite migration, and plaintiff
expressed his opinion about the merits of the decision itself
and did so as part of his day-to-day responsibilities as an
IT Manager, unlike in Folz, plaintiff also expressed concern
that Croft had failed to follow the necessary procedure to
make that decision in the first place—a decision that was
already final and did not involve plaintiff. Further, although
it was part of plaintiff’s job duties to advise Croft on IT mat-
ters, it was not part of his job duties to advise Croft on her
compliance with the CCLSD Master Plan or bylaws, a point
that Croft immediately conveyed in response to his report,
by retorting, “And I’m telling you that you’re an IT man-
ager.” In sum, this case is distinguishable from Folz because
the alleged violation had already occurred, it concerned a
matter that was outside the scope of plaintiff’s day-to-day
responsibilities as IT Manager, and plaintiff did not voice
his opinion about the alleged violation to his supervisors
and coworkers as part of the decision-making process.
We next turn to whether plaintiff “in good faith
reported information that the employee believes is a viola-
tion of a state * * * law.” “ORS 659A.199 applies a subjective,
good faith standard to employees who report perceived viola-
tions of the law.” Boyd, 318 Or App at 98 (emphasis added);
see also Hall v. State of Oregon, 274 Or App 445, 453, 366
P3d 345 (2015) (explaining that ORS 659A.199’s express
“[r]eference to the employee’s belief indicates a subjective,
good faith standard”). Thus, “an employee has engaged in
14 McClusky v. City of North Bend
protected activity under that provision if the employee has
reported information that [they] subjectively believe[ ] is a
violation of a state or federal law, rule, or regulation and
has a good faith basis for that belief.” Boyd, 318 Or App at
98-99. We look to what the employee knew at the time of the
report, and it is irrelevant whether hindsight proves that a
violation of law in fact occurred. Hall, 274 Or App at 454-55.
Whether an employee held a subjective good faith
belief regarding a violation of law at the time of the report
is a question of fact. Id. (“[W]e conclude that plaintiff pre-
sented evidence to create a genuine issue of material fact
that he acted with subjective, good faith for purposes of
ORS 659A.199.”); Boyd, 318 Or App at 98-99 (applying that
standard). In Boyd, the plaintiff reported a nurse’s chart-
ing errors to his manager. 318 Or App at 98. On appeal,
the defendant argued that that report amounted only to a
general complaint regarding the nurse’s performance and
not a “good faith report[ of] information that the employee
believe[d was] evidence of a violation of a state or federal law,
rule or regulation.” Id. The plaintiff identified several state
administrative rules establishing nursing standards that
the nurse’s charting errors might violate, and the defendant
did not dispute that charting errors would fall short of nurs-
ing standards established in those administrative rules.
Id. at 99. We therefore concluded that the plaintiff’s testi-
mony that he had found inaccurate entries in a patient’s
chart made by the other nurse was sufficient for a factfinder
to reasonably conclude that the plaintiff had subjectively
believed that the nurse’s performance violated state admin-
istrative rules and that he had a good faith basis in fact
and law for that belief, even if it were to ultimately prove
untrue. Id. In other words, a plaintiff’s report need not iden-
tify the specific provisions of law that have been violated,
but rather articulate facts that may constitute a violation of
law. Cf. Walker v. Oregon Travel Information Council, 367 Or
761, 783, 484 P3d 1035 (2021) (explaining that under ORS
659A.203(1) a plaintiff “must set forth facts that would sup-
port an objectively reasonable belief that a violation [of law]
has occurred,” a court makes a “threshold determination
that there is a substantial nexus between the complained-of
conduct and a law or public policy identified by the court or
Cite as 332 Or App 1 (2024) 15
the plaintiff,” and “the jury then must determine whether
the plaintiff actually held such a belief and, if so, whether
that belief was objectively reasonable” (internal quotation
marks, citation, and emphasis omitted)).
Here, we conclude that plaintiff produced evidence
sufficient to create a genuine issue of material fact as to
whether he subjectively believed that Croft violated state
law at the time of his report and that he had a good faith
basis in fact and law for that belief. Plaintiff reported to
Croft that she had violated the CCLSD Master Plan and
bylaws by contracting with a third party to migrate to G
Suite without first seeking and gaining approval from the
Advisory Board. The CCLSD Master Plan provides that the
Advisory Board has the duty to “[d]etermine and evaluate
those shared countywide cooperative services, which are con-
tracted, and the budget for those services,” and to “[r]eview
contracts for ESO services and recommend approving,
denying or changing the contract to the appropriate sign-
ing authority.” The Master Plan further provides that
“[c]ountywide services” include “[p]rovision of all district-
wide information technology services and maintenance.”
And the CCLSD Advisory Board’s bylaws expressly provide
that “[a]ll Board meetings shall be held in compliance with
the Oregon Public Meeting Law as set out in the Oregon
Revised Statutes.” See ORS 192.610 - 192.705. Those stat-
utes reflect state policy that “[t]he Oregon form of govern-
ment requires an informed public aware of the deliberations
and decisions of governing bodies and the information upon
which such decisions were made” and express the legisla-
ture’s “intent * * * that decisions of governing bodies be
arrived at openly,” ORS 192.620, by requiring, among other
things, that “[a]ll meetings” of a “governing body of a public
body” be open to the public, and by prohibiting a “quorum of
a governing body” from “meet[ing] in private for the purpose
of deciding on or deliberating toward a decision on any mat-
ter,” ORS 192.630. See also ORS 192.610 (defining terms,
including “decision,” “deliberation,” “governing body,” “pub-
lic body,” and “meeting”). From that evidence, a reasonable
factfinder could find that plaintiff believed that the Master
Plan and bylaws required Croft to seek approval from the
Advisory Board to contract with a third party to migrate to
16 McClusky v. City of North Bend
G Suite and to do so at a public meeting that complied with
Oregon Public Meeting Law, and that plaintiff believed that
Croft had reached the decision to migrate to G Suite by cir-
cumventing those legal requirements.
Defendant does not directly respond to plaintiff’s
contention that he believed that Croft violated public meeting
law. Instead, defendant argues that plaintiff could not have
had a good faith, subjective belief of an alleged violation of
law at the time of the report because alleged violations of the
CCLSD Master Plan and bylaws “involv[e] internal admin-
istrative matters” and therefore do not constitute “state or
federal law, rule[s] or regulation[s].” We are unpersuaded.
The CCLSD Master Plan was adopted by the Coos County
Board of Commissioners and expressly delegates “limited
and defined powers” to the appointed Advisory Board. The
Advisory Board is governed by the CCLSD bylaws, which
expressly mandate that board meetings comply with state
law. We therefore reject defendant’s contention that plaintiff
could have only believed that he was reporting an alleged
violation of mere internal administrative matters.
Finally, we turn to whether defendant may be lia-
ble under ORS 659A.199 for Croft’s conduct under a joint
employer or an imputed motive theory. It is undisputed that
plaintiff named only North Bend as a defendant and does
not allege that he reported a violation of law by defendant or
one of defendant’s agents. In defendant’s view, that is fatal
to plaintiff’s claim under ORS 659A.199.
As an initial matter, ORS 659A.199 is not limited to
reported violations about the employer. “By its terms, [ORS
659A.199] protects good faith reports of any illegal activity
and does not require that the reported activity be attrib-
utable to the employer.” Burley v. Clackamas County, 298
Or App 462, 468, 446 P3d 564, rev den, 365 Or 721 (2019)
(emphasis in original). However, ORS 659A.199 does require
that the employer’s adverse employment action be taken
“because” of or “for the reason that” the employee reported a
violation of law. Ossanna v. Nike, Inc., 290 Or App 16, 26-27,
415 P3d 55 (2018), aff’d, 365 Or 196, 445 P3d 281 (2019).
Here, it is also undisputed that defendant’s agent, O’Connor,
was the ultimate decisionmaker with regard to plaintiff’s
Cite as 332 Or App 1 (2024) 17
termination and that Croft recommended that O’Connor
terminate plaintiff. Thus, the question becomes whether
defendant may be liable for terminating plaintiff “for the
reason that” he reported an alleged violation of law by Croft
and, by extension, CCLSD.
The trial court observed that “Oregon law has yet
to address joint employer liability” and therefore looked to
federal law under Supreme Court guidance. See Ossanna v.
Nike, Inc., 365 Or 196, 204-05, 445 P3d 281 (2019) (“Although
federal precedent has no binding authority on this court’s
interpretation of state law, this court has looked to Title VII
precedent for guidance in analyzing claims brought under
analogous provisions of ORS chapter 659A.”). The court
applied the federal common-law agency test adopted by the
Ninth Circuit in EEOC v. Global Horizons, Inc., 915 F3d 631
(9th Cir 2019), and found that CCLSD and defendant were
plaintiff’s joint employers but concluded that defendant was
not jointly liable for CCLSD’s alleged discriminatory conduct
because defendant did not know and should not have known
about any such unlawful acts. See id. at 641 (“Liability may
be imposed for a co-employer’s discriminatory conduct only
if the defendant employer knew or should have known about
the other employer’s conduct and failed to undertake prompt
corrective measures within its control.” (Internal quotation
marks and citation omitted.)).
Plaintiff contends that defendant may be liable for
Croft’s alleged biased recommendation because CCLSD
(Croft’s employer) and defendant are his joint employers and
because he produced evidence to create a genuine issue of
material fact that defendant knew or should have known
about Croft’s alleged bias—that is, that Croft recommended
that defendant terminate plaintiff at least in part because
plaintiff reported that she allegedly violated the law.
Defendant first responds by challenging the trial court’s
finding that defendant and CCLSD were plaintiff’s joint
employers. Defendant argues that it cannot be held liable as
defendant’s joint employer because CCLSD, not defendant,
exercised the right to control plaintiff’s day-to-day activities.
We reject defendant’s argument. In McClusky I, we
explained that ORS 659A.001(4)(a)’s definition of “employer”
18 McClusky v. City of North Bend
as “any person who in this state, directly or through an
agent, engages or uses the personal service of one or more
employees, reserving the right to control the means by which
such service is or will be performed” reflects the under-
standing of the “right to control” that “appears in various
contexts throughout Oregon law” and that was reflected in
case law at the time its predecessor statute was enacted in
1969. 308 Or App at 142. We rejected North Bend’s “meth-
odological approach” that “frames the right to control as a
zero-sum game: there is only ever one employer, and any-
one else is, at best, an agent” as “incorrect.” Id. at 143. We
further observed that “[t]he proposition that more than one
employer can possess a right to control an employee is well-
established.” Id. at 144 (citing Restatement of Employment
Law § 1.04(b) (2015) (“An individual is an employee of two
or more joint employers if (i) the individual renders services
to at least one of the employers and (ii) that employer and
the other joint employers each control or supervise such ren-
dering of services as provided in § 1.01(a)(3).”)). Although
we ultimately did not decide whether CCLSD was plain-
tiff’s employer, we expressly held that, “as a matter of law,
North Bend reserved the right to control plaintiff and was
his employer for purposes of ORS chapter 659A.” Id. at 145.
In reaching that conclusion, we squarely rejected the argu-
ment that defendant again raises here. Id. at 144 (“[E]ven if
we were to assume arguendo that CCLSD possessed a right
to control plaintiff, and even if CCLSD actually exercised
control over plaintiff, neither point forecloses that North
Bend also retained a right to control him.”).
If defendant is shielded from liability under a joint
employer theory as a matter of law, it could only be on the
grounds that CCLSD is not plaintiff’s joint employer. But
defendant conceded that point in its answer. And, in any
event, the evidence in the summary judgment record shows
that CCLSD reserved the right to control plaintiff (and
actually exercised control over him): the CCLSD Technology
Systems Manager position description provides that “day to
day supervision” “is provided by the Director of the North
Bend Public Library in cooperation with the Director of
CCLSD Extended Services” and that “[t]he CCLSD Director
of Extended Services provides general supervision for this
Cite as 332 Or App 1 (2024) 19
position and provides input to the yearly evaluation” and
“coordinates the scheduling of this position.” We therefore
conclude that CCLSD and defendant were plaintiff’s joint
employers as a matter of law.
Under federal law, “even if a joint-employment rela-
tionship exists, one joint employer is not automatically lia-
ble for the actions of the other.” Global Horizons, Inc., 915
F3d at 641. We agree with the Ninth Circuit that “[l]iability
may be imposed for a co-employer’s discriminatory conduct
only if the defendant employer knew or should have known
about the other employer’s conduct and failed to undertake
prompt corrective measures within its control.” Id. (internal
quotation marks and citation omitted). In Global Horizons,
Inc., the Equal Employment Opportunity Commission
brought discrimination charges against fruit growers and
a labor contractor under Title VII of the Civil Rights Act of
1964 alleging, among other things, that the fruit growers
and labor contractor subjected Thai workers to poor work-
ing conditions, substandard living conditions, and unsafe
transportation on the basis of their race and national origin.
Id. at 633. After concluding that the EEOC had plausibly
alleged that the fruit growers and the labor contractor were
joint employers of the Thai workers, the Ninth Circuit con-
cluded that the allegation that the Thai workers had com-
plained directly to one fruit grower about their substandard
working conditions gave rise to a plausible inference that
the fruit grower knew or should have known about the labor
contractor’s discriminatory conduct. Id. at 641. And because
the allegations established that the fruit grower had ulti-
mate control over those working conditions, they could have
taken corrective action but failed to do so. Id. at 641-42.
Here, plaintiff produced evidence that defendant’s
agent, North Bend HR Manager Collins, was present at
the July 2017 IT meeting and participated in the discus-
sion in which plaintiff reported Croft’s alleged violation
of law. Plaintiff also produced evidence that Croft worked
closely with defendant’s management team (Collins, Sharp,
and O’Connor) to provide day to day supervision to plaintiff
and to discuss plaintiff’s termination, including that Croft
made the initial decision with Sharp to pursue plaintiff’s
20 McClusky v. City of North Bend
termination. Finally, the draft Work Improvement Plan cre-
ated by Sharp and edited by Croft specifically notes that
plaintiff “has a tendency to incorrectly assume the worst
about his colleagues, which often leads him to improperly
accuse them of wrongdoing,” and “[a]s a result, many of his
professional relationships have become strained.” We there-
fore conclude that plaintiff has produced evidence sufficient
to create a genuine issue of fact that defendant knew or
should have known about Croft’s (and by extension CCLSD’s)
alleged bias due to plaintiff’s report of Croft’s violation of
law, that defendant could have but failed to take corrective
action (for example, by not including Croft in the decision to
terminate plaintiff), and that Croft’s allegedly biased rec-
ommendation to terminate plaintiff was a substantial factor
in O’Connor’s decision to terminate him.
We next address whether defendant may be liable
under a “cat’s paw” or imputed motive theory, that is, whether
Croft’s alleged bias may be considered a cause of plaintiff’s
termination because Croft recommended that defendant ter-
minate plaintiff. The trial court concluded that the imputed
motive theory did not apply to this case because Croft was
not a subordinate to the decision-maker, O’Connor, and was
not employed by defendant.
“[I]n Oregon statutory employment discrimination and
retaliation cases, a plaintiff may assert the ‘cat’s paw’ the-
ory to impute the bias of a supervisor who lacks decision-
making authority to the employer’s manager and ultimate
decision-maker, if the plaintiff can point to evidence that
the non-decision-maker influenced or was involved in the
adverse employment decision.”
Ossanna, 365 Or at 209. In Ossanna, the court did “not pre-
scribe a particular level of control that a biased employee * * *
must exert over the employment decision * * * before allowing
the bias to be imputed to the decision-maker.” Id. The court
adopted such a “practical” approach given “a workplace real-
ity” that “[t]he employment setting often consists of multiple
layers of networks and relationships; organizational models
often do not reflect a simple vertical chain of command; and
bias can enter the decision-making process through formal
or less formal channels.” Id. at 210. We have since held that
the cat’s paw theory is applicable when a coworker, rather
Cite as 332 Or App 1 (2024) 21
than a supervisor, is the alleged biased employee. Crosbie
v. Asante, 322 Or App 250, 259, 519 P3d 551 (2022), rev den,
370 Or 827 (2023) (“[T]he propriety of a cat’s paw instruction
hinges on whether a biased employee held influence over the
adverse employment decision—either because the employee
was authorized by job duty to do so or because the employer
negligently allowed such usurpation.”).
Given the practical approach the Ossanna court
adopted and our distillation in Crosbie of the core principle
for when a cat’s paw theory applies, we see no reason why it
should not apply when a supervisor for a joint employer is the
allegedly biased employee, so long as the plaintiff produces
evidence that the allegedly biased employee held influence
over the adverse employment decision. Here, the undisputed
evidence is that plaintiff’s supervisor, Croft, held influence
over plaintiff’s other supervisor and ultimate decision-
maker, O’Connor, in his decision to terminate plaintiff. We
therefore conclude that Croft’s motive may be imputed to
defendant, and that there is a genuine issue of material fact
whether Croft’s recommendation was a substantial factor in
his termination.
C. Claims 3 and 4: Public Employer Whistleblowing - ORS
659A.203(1)(b)(A), (1)(b)(B), and (1)(d)
Plaintiff’s third and fourth claims allege violations
of ORS 659A.203(1), which provides, in relevant part:
“[I]t is an unlawful employment practice for any public
or nonprofit employer to:
“* * * * *
“(b) Prohibit any employee from disclosing, or take or
threaten to take disciplinary action against an employee
for the disclosure of any information that the employee rea-
sonably believes is evidence of:
“(A) A violation of any federal, state or local law, rule
or regulation by the public or nonprofit employer;
“(B) Mismanagement, gross waste of funds or abuse
of authority or substantial and specific danger to public
health and safety resulting from action of the public or non-
profit employer; [or]
22 McClusky v. City of North Bend
“* * * * *
“(d) Discourage, restrain, dissuade, coerce, prevent or
otherwise interfere with disclosure or discussions described
in this section.”
The trial court granted summary judgment for
defendant on plaintiff’s third claim under ORS 659A.203
(1)(b)(A) and (B) on several grounds, only one of which we
need address, as it is dispositive: that plaintiff failed to pro-
duce evidence to create an issue of fact that it was objectively
reasonable for him to believe that North Bend was violat-
ing any federal or state law, rule or regulation. Given that
plaintiff failed to establish objective reasonableness as to his
third claim, the trial court granted summary judgment for
defendant on plaintiff’s fourth claim under ORS 659A.203
(1)(d), because he failed to produce evidence that North Bend
“discouraged, restrained, dissuaded, coerced, prevented or
otherwise interfered” with plaintiff’s disclosure or discussion
of the matters described in ORS 659A.203(1)(b)(A) or (B).
On appeal, plaintiff argues that the definition of
“public employer,” ORS 659A.200(6), does not limit the report
in ORS 659A.203(1)(b) specifically to the plaintiff’s employer
who takes the adverse action, but rather includes reports of
violations of illegal and other inappropriate conduct occur-
ring at “any agency of or political subdivision of the state.”
Plaintiff contends that the phrase “the public employer” in
ORS 659A.203(1)(b)(A) and (B) “is not referring to the plain-
tiff’s employer” who took the alleged adverse employment
action, but to “a public employer about which the protected
individual complains” and that ORS 659A.203(1) therefore
“applies to public employees who complain about perceived
violations of law by any agency or political subdivision of the
state.”
To resolve this question, we turn to our familiar
methodology of statutory construction to discern the legis-
lature’s intent. State v. Gaines, 346 Or 160, 171-72, 206 P3d
1042 (2009) (explaining that the “paramount goal” of statu-
tory interpretation is “discerning the legislature’s intent”).
In doing so here, we begin and end with the text and context
Cite as 332 Or App 1 (2024) 23
of the provision. Id. (holding that text and context “must be
given primary weight in the analysis”).5
As noted, ORS 659A.203(1)(b) prohibits “any pub-
lic or nonprofit employer” from taking disciplinary action
against an employee for disclosing “any information that
the employee reasonably believes is evidence of [a] violation
of any federal, state or local law, rule or regulation by the
public or nonprofit employer” or “[m]ismanagement, gross
waste of funds or abuse of authority or substantial and spe-
cific danger to public health and safety resulting from action
of the public or nonprofit employer.” (Emphases added.) The
statute uses the definite article “the” in referring to “the
public or nonprofit employer” whose conduct is the subject of
the reported violation or inappropriate conduct. “The defi-
nite article ‘the’ often signifies a narrowing intent, a ref-
erence to something specific, either known to the reader
or listener or uniquely specified.” Hill v. Johnson, 371 Or
494, 502, 538 P3d 204 (2023) (internal quotation marks and
citation omitted). “A referent may be identifiable because it
was previously introduced.” Id. Here, the identifiable refer-
ent that was previously introduced is the public or nonprofit
employer who takes the adverse employment action.
The context also supports our reading. In compar-
ing the protections afforded by the various whistleblowing
statutes in ORS chapter 659A, we have explained that ORS
659A.203(1)(b) “applies strictly to public employers,” Burley,
298 Or App at 468, and that “the legislature intended that
the ‘threshold’ for the generality of public employee whistle-
blower claims be different, and more demanding” than other
causes of action, including under the common law, Love v.
Polk County Fire District, 209 Or App 474, 492, 149 P3d
199 (2006). Just as the legislature knows how to employ a
less demanding subjective good faith belief standard, as it
did in ORS 659A.199, it also knows how to employ broader
5
The parties have not pointed us to any pertinent legislative history, and we
have not independently sought such legislative history, as it is unnecessary for us
to do so in light of the text of ORS 659A.203(1)(b) and its context. ORS 174.020(3)
(“A court may limit its consideration of legislative history to the information that
the parties provide to the court.”); see also Baldwin v. Seida, 297 Or App 67, 76,
441 P3d 720, rev den, 365 Or 769 (2019) (“We need not exercise our discretion to
seek legislative history, particularly when unnecessary.”).
24 McClusky v. City of North Bend
language with regard to the subject of the reported illegal
or inappropriate conduct, as it also did in ORS 659A.199. As
we observed in Burley, ORS 659A.199 reflects the legisla-
ture’s intent “both to provide protections against retaliation
to the employees of private employers” who are not covered
by ORS 659A.203, and “to supply additional protections to
employees of public employers” by allowing for another cause
of action to be available for a broader range of protected con-
duct than afforded by ORS 659A.203. 298 Or App at 468.
We therefore reject plaintiff’s contention that ORS
659A.203 applies to reports of alleged violations or inappro-
priate conduct by any public or nonprofit employer; by its
terms, ORS 659A.203(1)(b) expressly applies only to reports
of illegal and other inappropriate conduct by the public
or nonprofit employer who takes the adverse employment
action.
Returning to this case, we conclude that the trial
court correctly granted summary judgment on Claims 3 and 4.
As to Claim 3, plaintiff failed to produce evidence that he
reported illegal or other inappropriate conduct by defen-
dant North Bend—the employer that plaintiff alleges took
the adverse employment action in terminating him. Rather,
plaintiff’s theory and evidence as to these claims focus on
reports of illegal and other inappropriate conduct only by
Croft, who was an agent of CCLSD, and plaintiff does not
identify any adverse employment action taken by CCLSD.6
As to Claim 4, because he failed to establish a violation of
ORS 659A.203(1)(b)(A) or (B) in his third claim, plaintiff nec-
essarily failed to establish that defendant “[d]iscourage[d],
restrain[ed], dissuade[d], coerce[d], prevent[ed] or otherwise
interfere[d] with disclosures or discussions described in this
section.” The trial court did not err in granting summary
judgment for defendant on these claims.
Judgment of dismissal as to Claims 1 and 2 reversed
and remanded; otherwise affirmed.
6
We do not understand plaintiff to assert as a basis for these claims that
Croft’s recommendation that defendant terminate plaintiff is an adverse employ-
ment decision protected by ORS 659A.203. Plaintiff rather focuses on defendant’s
decision to terminate him. We therefore do not address it.