Cuddigan-Placito v. SAIF ( 2024 )

No. 760 October 30, 2024 663
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Jasmine CUDDIGAN-PLACITO,
Plaintiff-Appellant,
v.
STATE ACCIDENT INSURANCE FUND,
an Oregon public corporation,
Defendant-Respondent.
Multnomah County Circuit Court
21CV02986; A179619
Eric J. Bloch, Judge. (Limited Judgment)
James D. Huegli, Judge pro tempore. (Supplemental
Judgment)
Argued and submitted September 7, 2023.
Judy Danelle Snyder argued the cause for appellant.
Also on the briefs were Holly Lloyd and Law Offices of Judy
Snyder.
Rebecca A. Watkins argued the cause for respondent.
Also on the brief were Randi J. Ensley and SBH Legal.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
664 Cuddigan-Placito v. SAIF
ORTEGA, P. J.
In this workplace retaliation case, plaintiff brought
claims under ORS 659A.030(1)(f), ORS 659A.199, and ORS
659A.203 against her former employer, State Accident
Insurance Fund Corporation (SAIF), based on allegations
that SAIF had terminated her in retaliation for reporting
unlawful conduct. The trial court granted SAIF’s motion for
summary judgment on plaintiff’s claims and entered a lim-
ited judgment in SAIF’s favor.1 On appeal, plaintiff argues
that the trial court erred because genuine issues of material
fact exist as to whether plaintiff engaged in a protected activ-
ity as contemplated by the statutes to support her claims.
Plaintiff also asserts that the trial court erred in dismissing
her claims under ORS 659A.199 and ORS 659A.203 when
it failed to address a different report of illegal activity that
plaintiff had alleged. In a conditional cross-assignment of
error, SAIF argues that the trial court erred in concluding
that plaintiff raised a genuine issue of fact that she made a
“good faith report,” as required by ORS 659A.199 and on the
element of causation for all of her claims.
We conclude, as a matter of law, that plaintiff did not
engage in a protected activity as contemplated under ORS
659A.030(1)(f) when she left a voicemail because there was
no evidence that plaintiff undertook that activity to assert
or defend an employee’s rights under ORS chapter 659A.
With respect to both ORS 659A.030(1)(f) and ORS 659A.199,
we agree with SAIF on its cross-assignment of error that
plaintiff failed to create a genuine issue of material fact that
there was a causal link between the one activity that could
be a protected activity and the adverse employment action.
Finally, we conclude that an activity left unaddressed by the
trial court is legally insufficient to support a claim under
ORS 659A.199 or ORS 659A.203. Accordingly, we conclude
that the trial court did not err in granting summary judg-
ment to SAIF on all of plaintiff’s claims, and we affirm.
I. FACTS
On appeal from a trial court’s grant of summary
judgment, we review for errors of law and we “will affirm if
1
SAIF brought cross-claims against plaintiff, which survived summary
judgment.
Cite as 335 Or App 663 (2024) 665
there are no genuine disputes about any material fact and
the moving party is entitled to judgment as a matter of law.”
Beneficial Oregon, Inc. v. Bivins, 313 Or App 275, 277, 496
P3d 1104 (2021). “In so doing, we view the facts in the light
most favorable to the nonmoving part[y],” and we “examine
whether no objectively reasonable juror could find in their
favor on the question at issue.” Id. With that standard in
mind, we recite the following facts in the light most favor-
able to plaintiff as the nonmoving party.
SAIF is an independent public corporation that pro-
vides workers’ compensation insurance for Oregon employ-
ers. See ORS 656.751; ORS 656.752. Plaintiff was employed
by SAIF as a claim investigator. Workers’ compensation
claims are assigned to claim adjusters, who manage the
claim and work with physicians to determine the compensa-
bility of the claim. The primary responsibility of the inves-
tigator is to investigate the facts, including by conducting
interviews, and provide that information to the adjuster.
At the conclusion of an investigation, the investigator com-
pletes a report of investigation (ROI) and “images” it to the
claim file. Plaintiff was taught by SAIF that ROIs are legal
documents that must be imaged to the file. SAIF requires
investigators to complete ROIs accurately without bias,
and investigators do not make any recommendations to the
adjuster about the claim and have no role in processing or
making a decision about the claim. Investigators also do
not include in ROIs their beliefs about whether a worker or
witness is lying or about whether an injury did or did not
happen.
In June 2020, plaintiff was assigned to investigate a
claim of stress made by CR, who worked at Perlo Structures.
CR claimed that he had been harassed at work because of
his race. The claim was assigned to Ruth Levin as the claim
adjuster. Levin requested that plaintiff first speak to the
employer representative, Kimberly Wood, before speaking
with CR. Levin also told plaintiff that Wood was a member
of the Management-Labor Advisory Council (MLAC) and
was a powerful person who could cause problems for plain-
tiff at SAIF. A different adjuster had offered plaintiff the
same warning about Wood on a prior occasion.
666 Cuddigan-Placito v. SAIF
As part of her investigation, plaintiff interviewed
Wood, CR, witnesses identified by Wood, and additional wit-
nesses identified by CR. Plaintiff also attempted to inter-
view other witnesses, but those witnesses would not call her
back. On July 8, 2020, plaintiff contacted her supervisor,
Elizabeth Mellor, to ask for more time because she was find-
ing it difficult to complete the ROI, she thought one witness
was lying, and she wanted to get one more person’s state-
ment. On July 9, plaintiff called two witnesses and left mes-
sages. She also emailed Wood to get her help in speaking
to the witnesses. Wood informed plaintiff that one of the
witnesses, Josh, no longer was an employee for Perlo.
Late at night on July 9, plaintiff left the following
voicemail for Josh:
“Hello Josh, this is [plaintiff], calling from SAIF
Corporation again. I am hoping that you can please call
me back. My number is * * *. I am calling about Chile, [CR],
is his full name, you know him as Chile, or Chile, however
you say it in English. I’m working on his workers compen-
sation claim for stress caused by harassment at the job site
and I know he was harassed at the job site. And I know
Mark—Mark and Little Boy, John, were involved and I
know that they are both lying to me about what is going
on because I have some other, one other witness who has
given me some good information. I really need to prove that
that happened at the job site, because everyone’s covering it
up at Perlo, including the people in charge over there. And
I would really, I really need your testimony, I don’t know
what you know, but I think you probably know something.
Anyway, what happened to Chile on the job site is wrong
and we need to make it right. And I can’t do it without your
help so can you please call me back, my number is * * *.
And, I will not be sharing your information with Perlo, that
I talked with you, so do not worry about that. OK, thanks,
bye. Please call me.”
Plaintiff testified that, right after she left the voicemail,
she had second thoughts about it; she agreed that it did
not sound like an objective investigation. She later told her
supervisor, Mellor, that she had tried to delete the message
right after she left it, but it went through. Plaintiff did not
contact Levin or Mellor about the voicemail at the time she
sent it.
Cite as 335 Or App 663 (2024) 667
The next day at around 12:30 p.m., an attorney for
SAIF contacted Mellor because he had been contacted by an
attorney for Perlo who had concerns about plaintiff’s inves-
tigation. He then forwarded to both Mellor and plaintiff the
email he had received, which mentioned a voicemail. Mellor
notified her superior at SAIF, Steven Hogaboam, who is the
SAIF Investigations Director, of the situation.
Plaintiff called the attorney for Perlo and predicted
that she would be getting fired. The attorney told plaintiff
that he did not think he should talk to her and that she
needed to contact her supervisor. Plaintiff then contacted
Mellor, upset and crying. She told Mellor about the voice-
mail and was concerned that she was getting fired; she con-
veyed that it was unprofessional and that she had tried to
delete it. Mellor instructed plaintiff not to call anyone until
she could look into the matter. Plaintiff acknowledged that
she had become too personally involved. In her declaration,
plaintiff stated that “I was saying whatever I could so as to
not lose my job.”
The attorney for Perlo then called Mellor. He expressed
concerns about bias in plaintiff’s investigation and forwarded
the voicemail to Mellor. Mellor shared the voicemail with
Hogaboam, who in turn shared it with Celia Feres-Johnson,
SAIF’s Employee Relations manager. Feres-Johnson found
the voicemail to be “very unprofessional”; it appeared to her
that plaintiff was trying to coerce a witness. Feres-Johnson
asked Hogaboam to place plaintiff on temporary leave and
consider taking her off of the investigation because her actions
were a serious violation of the code of conduct and behavior
that is not tolerated at SAIF. At Hogaboam’s direction, Mellor
then sent an email to plaintiff instructing her to not have fur-
ther contact with anyone on the claim, to complete the ROI,
and to follow SAIF polices in the future.
Over the next two days, which were on the weekend,
plaintiff sent lengthy texts to Mellor’s personal cell phone,
which Mellor at some point saved into SAIF’s system as
“supervisor’s notes.” In sum, on Saturday, plaintiff sent a text
to Mellor that began with “Hi, I am going to give you my let-
ter of resignation on Monday before I get fired.” The text went
on to explain that plaintiff left the voicemail for the witness
668 Cuddigan-Placito v. SAIF
because she needed his statement as she believed other wit-
nesses she had talked to were lying. She stated multiple times
that leaving the voicemail was “wrong” and “stupid.” She also
said she truly believed people were lying to her, “[b]ut that is
truly grounds for firing me and I get it. I’m not trying to plead
innocent, because I am not innocent. I am guilty as charged.”
Plaintiff said she would finish up her reports and, after tak-
ing leave, it would be the “[e]nd of my career at Saif” and also
that “I deserve whatever I get. I plead guilty.” She then ended
the text saying, “Or [m]aybe you could just demote me to a
position where I don’t talk to injured workers or employers.
Like investigations assistant or some bullshit like that.”
The next day, on Sunday, Mellor responded by text,
“I don’t mean to ignore you-I’m just not sure how to respond.”
Plaintiff responded with two separate texts. The first was
shortly after Mellor’s text and stated that she understood,
that she had retained an attorney, and that she tells herself
“ ‘you made your bed, now you have to lie in it.’ ” The text
continued that she thought Perlo was “after BLOOD and
BLOOD they will get and they know it.” She concluded:
“Bottom line, this is my fault and I will deal with the
consequences. Maybe I will cry a lot, but I will be ok. I am
a strong person and very talented. I do a lot of things that
no human will ever do. I will be ok NO MATTER WHAT!”
Later that same Sunday, plaintiff sent Mellor a sec-
ond, much longer text. We repeat the majority of the text
here, omitting only references to a different claim, because
plaintiff relies on it for the claims that are before us. That
text provided:
“Oh one last text from me and then I will leave you in
peace.
“I am not biased toward employers or injured workers. I
am biased toward TRUTH. You know as well as I do, when
I feel a worker is lying, I will do everything I can to prove
they are lying - as proven in my activity check work and all
of my work. I go the extra mile to find the truth about what
is going on. I even fuck up trying just too damn hard. * * *
“I need to just not care at all. That way I won’t work so
hard in the first place. When I work too hard I start mak-
ing mistakes. Like this was a mistake leaving this guy a
Cite as 335 Or App 663 (2024) 669
message when I fucking knew better. I’m not saying it was
a mistake like oooops, accident, I’m saying it was a risk I
took that I should not have. Hoping to bring the truth to
the surface. Hoping to appeal to a person’s ethical self to
do the right thing. Instead it fucking backfired on me like
I should have expected from the pieces of shit working at
that jobsite harassing the IW [injured worker]. Harassing
him for his accent, for the way he walks, for the way he
talks, putting signs on his back that say, ‘Fuck me, I’m your
bitch.’ Lifting up the porta-potty while his is in it. Grabbing
his nipples and twisting them over and over again at least
5 times.
“You tell me if that would not make you feel like finding
the truth. This is racial discrimination, sexual abuse, ver-
bal abuse. I cannot just sit still and not stand up for that.
Ok I did it in the wrong way. I admit it.
“Yes, the injured worker has prior problems with mental
issues. He is a victim of human trafficking. We cannot even
pretend to know what goes on in his mind and his heart.
He should probably not be working at all and much less at
a construction jobsite which are breeding grounds for this
type of despicable behavior.
“If people would simply be nice to him, treat him with
the human decency we all deserve, he would probably be
fine. Put him on a job site with a couple of racist rednecks
and this is the outcome anyone would expect.
“You tell me why [redacted] only interviewed supervi-
sors and the one person mentioned as the suspect? Why did
they not pull everyone from that jobsite who worked around
him and talk to them? Why did they only interview people
who would tell them what they wanted to hear? And even
if they had pulled them all in, they knew they never would
have told them the truth for fear of losing their jobs in this
crazy difficult COVID-19 time. People have to feed their
families. People have to put shelter their families. When
you are weighing your family’s welfare against telling the
truth about a guy at the jobsite getting harassed and losing
your job, which would you choose?
“And why did [redacted] do their own investigation
biased in their favor? Why? Why did they not let a profes-
sional company do it? You see all of these witnesses have
been subconsciously manipulated to be ready to say only
good things about all of this when I call. Nobody says the
670 Cuddigan-Placito v. SAIF
words, but everyone understands. Everyone knows the
repercussions surrounding the truth. Everyone under-
stands that their jobs are on the line.
“A person does not just make this shit up. I know this.
I know this, because I am a kind, noble, ethical, honest,
moral person. I LIVE what I BELIEVE.
“Ok I understand I did it in the wrong way. But, I also
did it for the RIGHT REASON.
“SAIF teaches us to be ‘professional’ and ‘conduct our-
selves in a professional manner’. But SAIF also teaches us
not to accept or condone any kind of harassment or abusive
behavior.
“If this were going on at SAIF, would SAIF want to
know the truth about what is going on? Even if it meant
an investigator from wherever called witnesses and said,
‘I believe the witnesses are not telling the truth, I need to
know the truth. You may be the only person who can make
this right. I believe SAIF is covering up the truth.’
“What is the bottom line here? Is SAIF a company that
is willing to sweep harassment, abuse and discrimination
under the rug in the name of professionalism from [t]he
company investigating the claims of this at SAIF? This is
my hypothetical case at SAIF.
“And who in their right mind believes that these fuck-
ing rednecks at the jobsite would do any of these things
they are accused of when there is a [s]upervisor or foreman
around? I mean asking the supervisors about this seems
completely ludicrous to me. People do not do horrible things
in front of supervisors.
“I cannot sleep with myself at night and wake up with
myself in the morning and look at myself in the mirror
without doing my best to find the truth.
“I’m sorry I did it in an unprofessional way[.]
“ ‘Integrity is doing the right thing, even when no one is
watching.’ - C.S. Lewis”
When asked about those texts at her deposition,
plaintiff testified that “this is me kind of ranting and raving
about how I’m feeling to a friend who is happens to be my
supervisor.” In her declaration, plaintiff also described the
Cite as 335 Or App 663 (2024) 671
Saturday text as “basically as a plea to keep my job.” Mellor
told Hogaboam about the texts, but Hogaboam did not read
the texts and did not share the texts with others or mention
them in discussions about plaintiff’s discipline for the voice-
mail. Hogaboam testified that he did not learn details about
the texts before plaintiff’s employment was terminated.
On Monday, July 13, Mellor and Hogaboam spoke
with Perlo’s labor attorney, Wood, and someone from Perlo’s
human resources department to obtain their perspective
and concerns about plaintiff’s investigation. Their concern
was that, based on the voicemail and some questions plain-
tiff had asked Perlo’s human resources person, plaintiff was
biased, and the bias was tainting the investigation. No one
at Perlo suggested that plaintiff’s employment should be
terminated.
Hogaboam and Feres-Johnson spoke with Kathy
Gehring, the Vice President of claims. Gehring has final
approval on discipline and termination matters for the
claims division, with human resources in a consultation
role. They explained the situation about the voicemail, and
Feres-Johnson conveyed her belief that plaintiff had lost her
objectivity.
Feres-Johnson also suggested to Hogaboam that
he should consider a supervisor review of plaintiff’s ROI.
Hogaboam asked Mellor to tell plaintiff to hold off on sub-
mitting the ROI given the concerns about her investigation.
Mellor called and told plaintiff to not image the ROI at that
time. Plaintiff told Mellor that the report was done and she
could email it to her, but Mellor instructed her not to do that
because she needed to talk to Hogaboam. Plaintiff stated
she would keep the report until Mellor was ready. In her
declaration, plaintiff averred that she told Mellor that it was
illegal to not image the ROI. Following the conversation,
plaintiff emailed Mellor and Hogaboam telling them, among
other things, that she had already typed the ROI and was
ready to image it when she had permission to do so.
Mellor did not make any note that plaintiff had
opined that not submitting the ROI was illegal. Hogaboam
did not recall hearing that plaintiff had made such a
672 Cuddigan-Placito v. SAIF
statement and did not mention any such statement to Feres-
Johnson or Gehring; he averred that it is common for super-
visors to instruct investigators to delay an ROI when there
are questions of accuracy. After having an opportunity to
discuss the situation with counsel, Hogabaom told Mellor
to have plaintiff turn in all ROIs. The next day, July 14, at
1:30 p.m., Mellor had a phone meeting with plaintiff and told
her to submit her ROI as usual that day. Plaintiff agreed to
do so. Mellor also asked about the voicemail and plaintiff
said that the voicemail was inappropriate, that she had tried
to delete it, and that it resulted from her personal stress,
her emotional attachment to the case, and her wanting to
get to the truth. The following day, July 15, before plaintiff
was terminated, plaintiff requested to send the ROI in later,
but Mellor told her to send what she had. Plaintiff sent in
the employer statement and witness statements but did not
include CR’s statement.
On July 14, at about 2:38 p.m., Gehring made the
final decision to terminate plaintiff’s employment with
SAIF based on the recommendations and information from
Hogaboam and Feres-Johnson. She concluded, “Based on
all of the information presented to me, there was an issue
of—that goes into the conduct of not being objective and los-
ing objectivity, which is a key component to the investigator
work. So that was the primary reason.” She also testified
that “it was clear, [plaintiff] had made some conclusions and
then pushed for information based on those conclusions ver-
sus continuing to objectively collect information.”
Hogaboam had recommended to Gehring that
plaintiff’s employment be terminated “[b]ecause I felt that
the contents of the voicemail were egregious enough that
that was an appropriate reaction.” He thought it was egre-
gious because plaintiff had accused Perlo of covering up
what happened and that she needed to prove harassment,
which is not the role of SAIF nor the role of a SAIF claim
investigator. He testified that “the overall impression of bias
in that situation, this sounds to me like an investigator who
has lost objectivity about what happened at the workplace
and is no longer trying to objectively gather the facts, they’re
trying to prove a point one way or another.” Feres-Johnson
Cite as 335 Or App 663 (2024) 673
had also recommended termination because the code of con-
duct violation was so severe and plaintiff’s behavior toward
the witness was egregious. Neither Hogaboam nor Feres-
Johnson spoke to plaintiff or reviewed plaintiff’s draft ROI
or any witness statements before the final decision to termi-
nate plaintiff’s employment.
On July 15 at 3 p.m., Hogaboam, Feres-Johnson,
and Mellor spoke with plaintiff by phone. Hogaboam talked
about the importance of objectivity and then terminated
plaintiff’s employment, explaining that the voicemail was
an egregious offense. He also told plaintiff to email any
notes and the ROI to Mellor by the end of the day. He then
asked if she had sent it. Plaintiff responded by making dis-
paraging remarks at Hogaboam and screamed “fuckers”
and “bitches,” at which point Feres-Johnson ended the call.
Plaintiff thought the call had ended before she made those
remarks. At some point close in time to plaintiff’s termina-
tion—either before or after it—Mellor created a document
for her own use that detailed her interactions with plaintiff,
using her notes to create it.
Plaintiff filed statutory retaliation claims against
SAIF, under ORS 659A.030, ORS 659A.199, and ORS
659A.203. SAIF filed a motion for summary judgment on
all of plaintiff’s claims, asserting that, as a matter of law,
plaintiff did not make a good faith report of a violation of
law or engage in protected activity and that there was no
evidence of causation. In response, plaintiff asserted that
she engaged in protected activity, for purposes of ORS
659A.030, by opposing CR’s harassment and discrimination
in her voicemail and in the July 11 and 12 texts to Mellor;
made a report, for purposes of ORS 659A.199, via those
same texts; and reported a violation of law, for purposes of
ORS 659A.199 and ORS 659A.203, by telling Mellor that it
was illegal to tell her to not image the ROI. Plaintiff also
asserted that a genuine issue of fact existed on causation.
The trial court granted summary judgment to SAIF
on all of plaintiff’s claims and entered a limited judgment. In
its letter opinion, the court concluded that the voicemail and
its contents were not protected activity because plaintiff, by
her own admissions, did not intend it to be a report under
674 Cuddigan-Placito v. SAIF
ORS 659A, nor was it a report to the employer, and it did not
mention any violations by SAIF. The court concluded that
plaintiff’s texts to Mellor did raise an issue of fact whether it
was a good faith report that Perlo was violating the law in its
treatment of CR, but also concluded that the statutes were
not intended to protect that type of report—the conduct of a
company that was not plaintiff’s employer or an employee of
plaintiff’s employer. The court did not address in its letter
opinion whether plaintiff’s comment that not imaging the
ROI was illegal was a report under ORS 659A.199 and ORS
659A.203. The court stated with regard to causation that
“[t]here is a genuine issue of fact in the mind of the Court
as to why Plaintiff was fired and, although very thin, that a
jury could make a finding that complaints to SAIF about the
conduct of Perlo employees was the reason for termination.”
Plaintiff appeals from the limited judgment and a
subsequent supplemental judgment granting SAIF costs.
II. ANALYSIS
On appeal, plaintiff asserts that the trial court
erred in concluding that she did not engage in protected
activity or make a report as contemplated by the statutes.
SAIF responds in support of the trial court’s conclusions, and
also raises a conditional cross-assignment, arguing that the
court erred in concluding that plaintiff’s texts constituted
a good faith report under ORS 659A.199 and that plaintiff
raised a genuine issue of fact on causation. Although the
parties combine their arguments for the different statutes,
we separately address each of plaintiff’s claims in turn.
A. Plaintiff’s Retaliation Claim Under ORS 659A.030(1)(f)
For her ORS 659A.030(1)(f) claim, plaintiff relies on
two of her actions as constituting “protected activity” under
that statute: her voicemail to the witness and her texts to
Mellor. Plaintiff argues that the voicemail and texts qualify
as protected activity because, contrary to the trial court’s
conclusions, the statute does not require that the unlaw-
ful conduct being opposed is conduct by the person’s own
employer or that it be reported to the person’s own employer.
Plaintiff also asserts that the statute does not require oppo-
sition to discrimination to be intended as opposition in order
Cite as 335 Or App 663 (2024) 675
to be protected. SAIF asserts that those actions were not
protected activity and, in its cross-assignment of error,
asserts that plaintiff did not raise an issue of material fact
showing a causal link between her texts to Mellor and her
termination. For the reasons explained below, we conclude
that the trial court did not err in dismissing plaintiff’s ORS
659A.030(1)(f) claim.
ORS 659A.030(1)(f) provides:
“(1) It is an unlawful employment practice:
“* * * * *
“(f) For any person to discharge, expel or otherwise
discriminate against any other person because that other
person has opposed any unlawful practice, or because that
other person has filed a complaint, testified or assisted in
any proceeding under this chapter or has attempted to do
so.”
An “unlawful practice” is defined by statute as “any
unlawful employment practice or any other practice specifi-
cally denominated as an unlawful practice in this chapter.”
ORS 659A.001(14). An unlawful practice includes race-based
discrimination in the workplace. See ORS 659A.030(1)(b) (“It
is an unlawful employment practice * * * [f]or an employer,
because of an individual’s race * * * to discriminate against
the individual in compensation or in terms, conditions or
privileges of employment.”).
The Supreme Court has explained that “we under-
stand section (1)(f) to assist the protective purposes of
ORS chapter 659A by ensuring that any person who is
engaged in protected conduct, such as opposing discrimina-
tory practices or seeking redress in an agency or court, is
not discouraged from doing so by the threat of being sub-
jected to adverse, disparate treatment.” PSU Association
of University Professors v. PSU, 352 Or 697, 710, 291 P3d
658 (2012). The court concluded that, similarly to the fed-
eral antiretaliation provision of Title VII, 42 USC section
2000e-3(a), “subsection (1)(f) is composed of protections for a
broad array of activities linked to asserting or defending the
rights of employees to seek relief from unlawful discrimina-
tion.” Id. at 713. From that discussion, we understand that
676 Cuddigan-Placito v. SAIF
a protected activity must have some intended connection to
the purpose of the statute—that is, it must be an activity
linked to defending, in some manner, the rights afforded
in ORS chapter 659A. Thus, we reject plaintiff’s argument
that ORS 659A.030(1)(f) does not require the person to have
any intention to oppose an unlawful practice through their
conduct for that conduct to be a protected activity.
In addition, with respect to opposing unlawful
employment practices, such as at issue here, federal case
law provides additional guidance. See PSU Association, 352
Or at 711 (stating that “federal precedent interpreting the
antidiscrimination provisions of Title VII can provide use-
ful additional context to aid our analysis of the meaning
of ORS 659A.030(1)(f)”). That case law has long provided
that “[t]he employee’s statement cannot be ‘opposed to an
unlawful employment practice’ unless it refers to some prac-
tice by the employer that is allegedly unlawful.” E.E.O.C.
v. Crown Zellerbach Corp., 720 F2d 1008, 1013 (9th Cir
1983) (emphasis in original); see also, e.g., Maner v. Dignity
Health, 9 F4th 1114, 1127 (9th Cir 2021), cert den, 142 S Ct
899 (2022) (referring favorably to standards established in
Crown Zellerbach).
Here, we first conclude that plaintiff’s voicemail is
not a protected activity under ORS 659A.030(1)(f) in light
of those standards. In so concluding, we assume, without
deciding, that protected activity can encompass opposition
to an unlawful employment practice of an employer other
than your own employer.
It is undisputed that plaintiff left the voicemail
for a former employee of Perlo, expressing her opinion that
CR had been harassed at Perlo and that people were lying
about it, in an attempt to get the former employee to talk
to her in the course of her investigation of the facts for CR’s
workers’ compensation claim. Plaintiff immediately tried to
delete the voicemail. She repeatedly stated that leaving the
voicemail was “stupid,” “wrong,” and “unprofessional” and
that it was grounds for SAIF to fire her. We have not located
any evidence in the summary judgment record that raises a
genuine issue of material fact that plaintiff was intending
to assert or defend CR’s rights under ORS 659A by leaving
Cite as 335 Or App 663 (2024) 677
the voicemail for the potential witness. And, plaintiff has
not identified any evidence in the summary judgment record
that she contends raises a genuine issue of fact on that issue;
rather, she asserts only that an intent to oppose an unlawful
practice is not required. Thus, on this record and based on
plaintiff’s arguments, we conclude that plaintiff’s voicemail
to the witness does not constitute protected activity under
ORS 659A.030(1)(f).
We next examine the texts that plaintiff sent to
Mellor over the weekend of July 11 and 12. As an initial
matter, plaintiff’s Saturday text and the first text she sent
on Sunday unequivocally do not qualify as protected activ-
ity, as neither text identifies “some practice” of Perlo or SAIF
that is alleged to be unlawful under ORS chapter 659A. The
second text on Sunday does include statements that refer
to “some practice” by Perlo that could be understood to be
unlawful under ORS chapter 659A, although most of the
text does not. The statements that could potentially fall
within protected activity provide:
“Harassing him for his accent, for the way he walks, for
the way he talks, putting signs on his back that say, ‘Fuck
me, I’m your bitch.’ Lifting up the porta-potty while he is
in it. Grabbing his nipples and twisting them over and over
again at least 5 times.
“You tell me if that would not make you feel like finding
the truth. This is racial discrimination, sexual abuse, ver-
bal abuse. I cannot just sit still and not stand up for that.”
However, even if that portion of the text identifies some
allegedly unlawful employment practice, and does qual-
ify as a protected activity, we nonetheless affirm the trial
court’s dismissal of plaintiff’s ORS 659A.030 claim based on
SAIF’s cross-assignment of error on causation.
As part of a prima facie case under ORS 659A.030
(1)(f), a plaintiff has to show a causal link between the pro-
tected activity and the adverse employment action in the
same manner as under the whistleblowing statute, ORS
659A.199. See Lacasse v. Owen, 278 Or App 24, 32, 373 P3d
1178 (2016) (stating that causation under ORS 659A.030(1)(f)
requires proof “that defendant’s unlawful motive was a sub-
stantial factor in [the plaintiff’s] termination, or, in other
678 Cuddigan-Placito v. SAIF
words, that [the plaintiff] would have been treated differently
in the absence of the unlawful motive”); see also Ossanna v.
Nike, Inc., 365 Or 196, 209, 445 P3d 281 (2019) (discussing
“cat’s paw” theory of causation and concluding it applies to
both retaliation and whistleblowing claims). For the same
reasons explained below on plaintiff’s ORS 659A.199 claim,
we conclude that plaintiff failed to raise a genuine issue of
material fact on causation between the texts to Mellor and
her termination for her ORS 659A.030(1)(f) claim.
As a result, the trial court did not err in granting
summary judgment to SAIF on plaintiff’s ORS 659A.030
claim.
B. Plaintiff’s Whistleblowing Claim Under ORS 659A.199(1)
Plaintiff relies on three of her actions to support her
whistleblowing claim under ORS 659A.199(1): the voicemail
to the witness, her texts to Mellor, and her telling Mellor
that it was “illegal” to tell her not to image her ROI. Plaintiff
argues that, contrary to the trial court’s conclusion, it is not
necessary for an ORS 659A.199 report to be about the employ-
ee’s employer and that the trial court erred in failing to con-
sider her claim based on the comment about submission of the
ROI. In its cross-assignment of error, SAIF argues that, if the
trial court erred as argued by plaintiff, the trial court also
erred in concluding that plaintiff made a “good faith” report
by her texts to Mellor and erred in concluding that plaintiff
presented evidence of causation. As explained below, we con-
clude that the trial court did not err in granting summary
judgment to SAIF, because we conclude, on SAIF’s cross-
assignment of error, that plaintiff did not present prima facie
evidence of causation with regard to the texts. We also con-
clude that plaintiff telling Mellor it was “illegal” to not image
the ROI was not a good faith report under ORS 659A.199.
ORS 659A.199(1) provides:
“It is an unlawful employment practice for an employer
to discharge, demote, suspend or in any manner discrim-
inate 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.”
Cite as 335 Or App 663 (2024) 679
That statute requires “a subjective, good-faith
belief that the reported information is evidence of unlawful
activity.” Folz v. ODOT, 287 Or App 667, 673, 404 P3d 1036
(2017), rev den, 362 Or 482 (2018); see also Hall v. State of
Oregon, 274 Or App 445, 453, 366 P3d 345 (2015) (compar-
ing the subjective good faith standard in ORS 659A.199 and
ORS 659A.233 with the objective reasonableness standard
in ORS 659A.230). “[A]n employee has engaged in protected
activity under [ORS 659A.199] if the employee has reported
information that he or she subjectively believes is a violation
of a state or federal law, rule, or regulation and has a good
faith basis for that belief.” Boyd v. Legacy Health, 318 Or App
87, 98-99, 507 P3d 715 (2022). What constitutes a “report”
under ORS 659A.199 is synonymous with “disclosure,” which
we have identified as meaning “ ‘to make known’ or to ‘open
up to general knowledge.’ ” McClusky v. City of North Bend,
332 Or App 1, 11-12, 549 P3d 557 (2024) (discussing and
synthesizing Bjurstrom v. Oregon Lottery, 202 Or App 162,
120 P3d 1235 (2005), and Folz). A good faith report requires
a plaintiff to articulate facts from which a reasonable fact-
finder could conclude that the plaintiff subjectively believed
that the conduct violated state law and that the plaintiff had
a good faith basis in fact and law for that belief. McClusky,
332 Or App at 14. “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.
As an initial matter, we agree with plaintiff that the
trial court erred to the extent that it concluded that a good
faith report under ORS 659A.199 must be about the employ-
ee’s employer. We stated in McClusky that “ORS 659A.199 is
not limited to reported violations about the employer.” 332
Or App at 16. Rather, we identified the limiting principle
for the application of the statute was that “ORS 659A.199
does require that the employer’s adverse employment action
be taken ‘because’ of or ‘for the reason that’ the employee
reported the violation of law.” Id. We next turn to the three
distinct reports identified by plaintiff.
We conclude with respect to the voicemail that, as
a matter of law, it does not constitute “reported informa-
tion that the employee believes is evidence of a violation of
680 Cuddigan-Placito v. SAIF
a state or federal law, rule or regulation.” ORS 659A.199(1).
Our conclusion is based on the same reasons discussed above
with respect to ORS 659A.030(1)(f), particularly that there
is no genuine of issue of material fact that plaintiff sought
to report anything by leaving the voicemail.
With respect to plaintiff’s texts to Mellor, however,
we conclude that plaintiff has raised a genuine issue of
material fact that they constitute a good faith report of a
violation of law for purposes of ORS 659A.199. In plaintiff’s
second Sunday text to Mellor she reported that, based on
the facts she provided in the text, she believed CR was sub-
ject to racial discrimination and abuse at Perlo. In so con-
cluding, we reject SAIF’s argument that it was not a good
faith report. SAIF asserts that the report was not in good
faith because plaintiff’s motive for the texts was to rant to a
friend and “basically as a plea to save my job.” At the sum-
mary judgment stage, plaintiff does not need evidence that
she was purely motivated by a desire to disclose unlawful
behavior; she only needs to produce evidence from which a
jury could make the necessary good faith finding. Here, the
jury could reasonably infer plaintiff’s good faith based on
her sharing facts with Mellor that formed the basis for her
belief that CR had experienced racial discrimination, sex-
ual abuse, and verbal abuse on the jobsite and based on her
expressed desire to stand up for what she believed was true.
Although we conclude that the Sunday text raised a
genuine issue of fact on whether it was a good faith report,
we agree with SAIF that plaintiff failed to present evidence
of a causal link between that text and her termination from
SAIF. As part of her prima facie case under ORS 659A.199,
plaintiff had to show that “the employer’s adverse employ-
ment action [was] taken ‘because’ of or ‘for the reason that’
the employee reported a violation of law.” McClusky, 332
Or App at 16 (quoting Ossanna v. Nike, Inc., 290 Or App 16,
26-27, 415 P3d 55 (2018), aff’d, 365 Or 196, 445 P3d 281
(2019)). The necessary causal link can be shown through
a “cat’s paw” or imputed motive theory, where the alleged
bias of a supervisor may be considered a cause of termina-
tion because the supervisor held influence over the adverse
employment decision. See McClusky, 332 Or App at 20-21
Cite as 335 Or App 663 (2024) 681
(discussing theory). “But imputation of bias works only to
permit a factfinder to impute a supervisor’s bias to a defen-
dant employer. To prove the employer’s liability for an unlaw-
ful employment practice, a plaintiff must also demonstrate
the requisite causation—that the supervisor’s unlawful bias
caused the adverse employment action.” Ossanna, 365 Or at
210.
Here, plaintiff argues that she created a genuine
issue of material fact on causation because only a few days
elapsed between her text and her termination and a jury
could reasonably infer that Hogaboam knew from Mellor
about plaintiff’s report of Perlo’s unlawful treatment of
CR. Plaintiff asserts that causation is established by evi-
dence that Hogaboam, who was aware of plaintiff’s report,
directly influenced the decision to terminate her employ-
ment, because he recommended termination to Gehring
and Gehring relied on his and Feres-Johnson’s recommen-
dations. Plaintiff argues that it is for the jury to decide
whether Hogaboam was biased against plaintiff because of
her report and whether the bias can be imputed to SAIF.
In our view, the chain of causation advocated by
plaintiff is not supported in the summary judgment record.
Viewing the evidence in the light most favorable to plain-
tiff, the summary judgment record supports a finding that
Mellor told Hogaboam about plaintiff’s texts over the week-
end. Hogaboam denied knowing any details about the texts,
but the record could support a reasonable inference that
Mellor informed Hogaboam of plaintiff’s report of Perlo’s
unlawful conduct in the Sunday text. However, there is
no evidence from which a reasonable factfinder could find
that Hogaboam conveyed any information about plaintiff’s
texts—either that they existed or the content of them—
to either Feres-Johnson or Gehring. It is undisputed that
Hogaboam gave his recommendation to Gehring to termi-
nate plaintiff based on his stated reason of the egregious
nature of the voicemail. It is undisputed that Feres-Johnson
based her recommendation to Gehring to terminate plain-
tiff based on the voicemail constituting a serious violation of
SAIF’s code of conduct and demonstrating a loss of investi-
gator objectivity, and that she did not know anything about
682 Cuddigan-Placito v. SAIF
the claim plaintiff was investigating. It is also undisputed
that Gehring based her decision to terminate plaintiff on
the information about the voicemail conveyed to her by
Feres-Johnson and Hogaboam.
Where the summary judgment record fails plain-
tiff is that it lacks any evidence from which a reasonable
factfinder could conclude that Hogaboam held an unlawful
bias that played a substantial factor in plaintiff’s termina-
tion from SAIF’s employment. The timing alone between the
report and plaintiff’s termination, which is all that plaintiff
has, is not sufficient to raise a genuine issue of causation
on this record because timing alone can only suffice, at
most, to impute bias to Hogaboam. See Boyd, 318 Or App at
104-06 (discussing cat’s paw theory and temporal proxim-
ity). Plaintiff has not pointed to anything in the record that
establishes a prima facie causal link between that imputed
bias and Gehring’s decision to terminate plaintiff. Gehring
decided to terminate plaintiff’s employment based on the rec-
ommendation of both Hogaboam and Feres-Johnson. There
is no evidence from which a reasonable factfinder could infer
that Feres-Johnson held an unlawful bias based on plain-
tiff’s report or that she was influenced by any unlawful
bias of Hogaboam; Feres-Johnson had already concluded by
Friday, July 10, that plaintiff’s conduct was a serious breach
of the code of conduct that is not tolerated at SAIF and had
recommended to Hogaboam to put plaintiff on temporary
leave, although he did not do that. Before plaintiff made the
report, plaintiff herself expressed her understanding sev-
eral times that the voicemail she left was sufficient grounds
to terminate her employment. In the circumstances of this
case, where plaintiff can only point to timing and there is no
other evidence that Hogaboam held an unlawful bias that
influenced the adverse employment action, plaintiff asks for
tenuous inferences that the summary judgment record can-
not support to meet the necessary chain of causation.
Finally, with regard to plaintiff’s comment to
Mellor about submission of the ROI, we conclude that it does
not constitute a good faith report of a violation of law under
ORS 659A.199. As stated above, a good faith report requires
a plaintiff to articulate facts from which a reasonable
Cite as 335 Or App 663 (2024) 683
factfinder could conclude that the plaintiff subjectively
believed that the conduct violated state law and that the
plaintiff had a good faith basis in fact and law for that belief.
McClusky, 332 Or App at 14.
Here, plaintiff has made no effort to meet that stan-
dard. The only evidence in the summary judgment record
was that plaintiff learned from SAIF that ROIs were legal
documents that must be imaged to the claim file. Nothing
about that belief suggests that not imaging an ROI to a file,
or a supervisor telling an investigator to not image an ROI
to a file, is illegal. Plaintiff has not articulated any basis in
fact or law to create a genuine issue of material fact that she,
in good faith, subjectively believed that Mellor telling her to
not image the ROI was illegal, and we will not endeavor to
do it for her.
As a result, we conclude that the trial court did not
err in granting summary judgment to SAIF on plaintiff’s
ORS 659A.199 claim.
C. Plaintiff’s Whistleblowing Claim Under ORS 659A.203
On appeal, plaintiff bases her whistleblowing claim
under ORS 659A.203 solely on the comment she made to
Mellor about submission of the ROI. For the same reasons
expressed above, we reject her arguments.
ORS 659A.203(1)(b)(A) provides:
“[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[.]”
ORS 659A.203 “requires an objectively reasonable
belief that the public entity has engaged in unlawful con-
duct.” Folz, 287 Or App at 673.
684 Cuddigan-Placito v. SAIF
We conclude that plaintiff’s comment about sub-
mission of the ROI was not an activity that entitled her to
protection under ORS 659A.203(1)(b)(A). Plaintiff has not
articulated any basis to support that that statement was
“an objectively reasonable belief” that SAIF had engaged in
unlawful conduct. The trial court did not err in granting
summary judgment to SAIF on her ORS 659A.203 claim.
Affirmed.