Seater v. Klamath Irrigation Dist. , 336 Or. App. 195 ( 2024 )

No. 814 November 14, 2024 195
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Linda A. SEATER,
Plaintiff-Appellant,
v.
KLAMATH IRRIGATION DISTRICT,
Defendant-Respondent.
Klamath County Circuit Court
19CV34752; A178647
Dan Bunch, Judge.
Argued and submitted February 2, 2024.
James L. Buchal argued the cause for appellant. Also on
the briefs was Murphy & Buchal LLP.
Matthew J. Kalmanson argued the cause for respondent.
On the brief were Blake H. Fry and Hart Wagner LLP.
Before Shorr, Presiding Judge, Pagán, Judge, and
Mooney, Senior Judge.
PAGÁN, J.
Reversed and remanded.
196 Seater v. Klamath Irrigation Dist.
PAGÁN, J.
Plaintiff appeals from a judgment dismissing her
unlawful employment practice claims against defendant,
Klamath Irrigation District (KID). Plaintiff alleged in her
complaint that she was subjected to numerous adverse
employment actions and eventually discharged in retalia-
tion for her complaints of unlawful actions and mismanage-
ment by KID. The trial court granted defendant’s motion
for summary judgment on the basis that plaintiff expressed
her concerns directly to the managers who were the alleged
wrongdoers, and thus the complaints could not be deemed
to be disclosures entitled to whistleblower protection.
On appeal, plaintiff maintains that the trial court erred
in granting summary judgment because (1) it misinter-
preted the applicable statutes when it concluded that inter-
nal reports to the offending managers did not qualify for
whistleblower protection; and (2) it overlooked evidence that
plaintiff reported wrongdoing to other individuals beyond
the responsible managers. We conclude that the trial court
erred in its interpretation of the applicable statutes, and we
therefore reverse and remand.
In reviewing a disposition on summary judgment, we
state the facts in the light most favorable to the non-moving
party, plaintiff, drawing all reasonable inferences in her
favor. ORCP 47 C. “Accordingly, where the record could rea-
sonably support either party’s version of events, we state the
facts as described by plaintiff.” Huber v. Dept. of Education,
235 Or App 230, 232, 230 P3d 937 (2010). However, because
our resolution turns on statutory interpretation, we only
briefly summarize the facts.
Plaintiff was employed at KID as a bookkeeper
and office manager. Over a period of time, plaintiff raised
numerous issues with management about the way KID was
being run, including alleging that it was not complying with
the KID Board policies and other laws, rules, and regula-
tions. The complaints covered a range of topics, including
the delivery of water to delinquent accountholders, prob-
lems with the way employee time was being calculated, the
improper execution of official documents, the collection or
waiver of fees for another water district, balancing of the
Cite as 336 Or App 195 (2024) 197
petty cash fund, noncompliance with procurement regula-
tions, the implementation of new accounting software, and
the comingling of distinct accounts. Over the same period,
plaintiff was subjected to multiple adverse employment
actions, including the alteration of her duties, formal rep-
rimands, being placed on administrative leave, and ulti-
mately being terminated. Following her termination, plain-
tiff filed an action for unlawful employment practices under
Oregon’s whistleblower statutes, ORS 659A.199 and ORS
659A.203, alleging that the adverse employment actions
were retaliation for her reports of problems and insistence
upon compliance.
Defendant moved for summary judgment, alleging
that there were no genuine issues of material fact and that
plaintiff had not alleged evidence to support the elements of
her claims, specifically asserting that plaintiff’s allegations
did not constitute whistleblowing activities and that there
was no temporal connection between the alleged protected
activity and the adverse employment actions. Following a
hearing on summary judgment, the trial court requested
supplemental briefing on the issue of whether a disclosure
made directly to the alleged wrongdoer was actionable
under the whistleblower statutes. Both parties submitted
supplemental briefing on that issue.
The trial court issued a letter opinion, in which it
concluded that, viewing the evidence in the light most favor-
able to plaintiff, many of her allegations would constitute
whistleblowing activity, due to the actions being arguably
unlawful, indicative of mismanagement, or matters of pub-
lic concern; however, because her complaints were made
internally directly to the managers who were the alleged
“wrongdoers,” the court concluded that they did not qual-
ify as “disclosures” entitled to whistleblower protection.
The court relied on federal case law, including Lindsey v.
Clatskanie People’s Util. Dist., 140 F Supp 3d 1077 (D Or
2015) and Shultz v. Multnomah County, No 08-CV-886-BR,
2009 WL 1476689 (D Or May 27, 2009), in reaching its con-
clusion. The court therefore granted defendant’s motion for
summary judgment on all of plaintiff’s claims and issued a
judgment to that effect. Plaintiff brought this appeal.
198 Seater v. Klamath Irrigation Dist.
ANALYSIS
Plaintiff raises two arguments, one legal and one
factual. Because we reverse and remand on the legal issue,
we do not reach the factual dispute. Plaintiff asserts that
the trial court erred by concluding that statements made
directly to a manager involved in the alleged wrongdoing
do not qualify as disclosures for whistleblower protection.
We review the trial court’s interpretation of a statute for
errors of law and note that we are not bound by decisions
of the federal courts interpreting Oregon statutes. Burley v.
Clackamas County, 298 Or App 462, 464, 467, 446 P3d 564,
rev den, 365 Or 721 (2019). We follow our well-established
methodology of reviewing the statutory text and context,
and any helpful legislative history. State v. Gaines, 346 Or
160, 171-72, 206 P3d 1042 (2009).
ORS 659A.203 states that it is an unlawful employ-
ment 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[.]”
The issue before us revolves around the word “disclosure,”
and whether a report to a manager involved in the alleged
wrongdoing qualifies as a disclosure.
The trial court relied on the interpretation of the
statute set forth in Lindsey. In Lindsey, the United States
District Court for the District of Oregon specifically held
that “alerting a wrongdoer that his own conduct is unlawful
does not fall under the protection of ORS 659A.203.” 140
F Supp 3d at 1094. Relying on other federal court cases,
the district court noted that a “disclosure” only extends to
reports of previously unavailable information, and that “ ‘it
is insufficient to merely identify or label conduct which is
Cite as 336 Or App 195 (2024) 199
known to have occurred as either unlawful or improper.’ ” Id.
at 1092-93 (quoting Hutton v. Jackson County, No 09-3090-
CL, 2010 WL 4906205 (D Or Nov 23, 2010), aff’d, 472 Fed
Appx 568 (9th Cir 2012)).
We have previously declined to follow the analysis
on another statute set forth in Lindsey because the opinion
“[did] not appear to adhere to the statutory construction meth-
odology adopted by the Oregon Supreme Court, although,
under Ninth Circuit precedent, they should have.” Burley,
298 Or App at 467 (citing Brunozzi v. Cable Communications,
Inc., 851 F3d 990, 998-99 (9th Cir 2017)). We similarly con-
clude here that the portion of Lindsey analyzing the meaning
of “disclosure” in ORS 659A.203 is not rooted in the Gaines
methodology, and therefore we decline to follow it.
Rather, we conclude that resolution of this issue is
controlled by our analysis set forth in Bjurstrom v. Oregon
Lottery, 202 Or App 162, 120 P3d 1235 (2005). In that case
we analyzed the word “disclosure” as it is used in ORS
659A.203 in deciding the question of whether a disclosure
could include internal agency reports, as opposed to only
external ones. Id. at 169-71. We examined the text and con-
text of the use of “disclosure,” noting:
“In common usage, the term ‘disclose’ may be understood
to mean, in a general sense, ‘to make known’ or to ‘open up
to general knowledge.’ Webster’s Third New Int’l Dictionary
645 (unabridged ed. 2002). Based on its context, one might
argue that the statute is designed to protect those who
make disclosures to an audience external to the agency.
* * * Further, in the popular conception, a ‘whistleblower’
is typically a person who discloses internal misconduct to
an external entity such as a newspaper or an investigating
commission.”
Id. at 169. We went on to note:
“However, ORS 659A.203(1)(b) protects ‘disclosure’ with-
out limitation, and we must not add limitations that the
legislature has omitted. ORS 174.010. In addition, ORS
659A.221(2), also part of the Whistleblower Law, explicitly
authorizes the public employer to establish rules requir-
ing the whistleblower to report wrongdoing to immediate
supervisors first, but in those circumstances, ‘the employer
200 Seater v. Klamath Irrigation Dist.
must protect the employee against retaliatory or disci-
plinary action.’ Thus, it seems that the drafters contem-
plated the possibility of retaliation against employees who
voiced their complaints either within the agency or depart-
ment, or to others outside.”
Id. We further examined the legislative history of ORS
659A.203, noting testimony that alerted the legislature to
the possibility of retaliation for internal agency reports and
finding no indication that there were legislative efforts to
limit the protected actions to extra-agency disclosures of
wrongdoing. Id. at 169-71. We concluded in that case that
internal reports of wrongdoing were included as “disclo-
sures” under the statute. Id. at 171.
The same rationale applies to the matter at hand.
Although defendant’s argument that one cannot disclose
information about wrongdoing to the perpetrator carries
logical appeal when considering the common usage of the
word “disclose,” the statute contains no language that indi-
cates that a disclosure must be made—or not be made—to
any particular individual, and we must not add limitations
that the legislature has not included. ORS 174.010. As noted
above in Bjurstrom, ORS 659A.221 allows public employers
to establish an optional procedure whereby an employee
may disclose information first to the supervisor, “or if the
supervisor is involved, to the supervisor next higher,” and
provides that the employee must be protected against retal-
iation by any supervisor for such disclosure. That statute
was enacted as part of the same bill that established ORS
659A.203. See Or Laws 1989, ch 890, § 9. The possibility of
an employee going directly to a supervisor to correct what
could possibly be merely an oversight, and those discussions
being deserving of whistleblowing protection, was discussed
during hearings on the legislation. Tape Recording, Senate
Labor Committee, SB 1051, Mar 13, 1989, Tape 63, Side B.
We conclude that it would be counterintuitive to read the
statute as providing protection for an employee who dis-
closes wrongdoing by a manager to a higher-up, but not
to protect the employee who goes directly to the offending
manager, particularly if that manager was in a position to
take adverse employment actions against the employee in
retaliation for highlighting the wrongdoing.
Cite as 336 Or App 195 (2024) 201
We therefore conclude that the trial court erred in
granting defendant’s motion for summary judgment on plain-
tiff’s claim under ORS 659A.203 on the basis that a commu-
nication made directly to a “wrongdoer” manager does not
qualify as a “disclosure” entitled to whistleblower protection.
We similarly conclude that the trial court erred
in granting summary judgment with respect to plaintiff’s
claim under ORS 659A.199. ORS 659A.199 states:
“(1) It is an unlawful employment practice for an
employer to discharge, demote, suspend or in any manner
discriminate or retaliate against an employee with regard
to promotion, compensation or other terms, conditions or
privileges of employment for the reason that the employee
has in good faith reported information that the employee
believes is evidence of a violation of a state or federal law,
rule or regulation.”
(Emphasis added.) We note that ORS 659A.199 and ORS
659A.203 use different language: disclosing versus report-
ing. See Folz v. ODOT, 287 Or App 667, 672-75, 404 P3d 1036
(2017), rev den, 362 Or 482 (2018) (analyzing claims under
each statute for qualifying “disclosures” or “reports”). The
trial court’s decision to grant defendant’s motion for sum-
mary judgment was based on its conclusion that plaintiff’s
statements did not constitute “disclosures,” applying federal
case law on that issue that only applied to ORS 659A.203.
See Lindsey, 140 F Supp 3d at 1091-94 (citing Schultz, 2009
WL 1476689, at *13-14). However, we recently noted that
“reports” and “disclosures” are synonymous. McClusky v.
City of North Bend, 332 Or App 1, 12 & n 4, 549 P3d 557,
rev den, 372 Or 812 (2024) (citing analysis contained in Folz
and Bjurstrom).1 Therefore, the trial court erred in dismiss-
ing plaintiff’s ORS 659A.199 claim on the same basis.
Because we conclude that the trial court erred in
dismissing plaintiff’s claims on the basis that the reports
were made directly to the wrongdoer and reverse and
remand on that basis, we need not reach plaintiff’s alterna-
tive argument that the trial court overlooked evidence that
1
We note also that the parties have not developed any meaningful argument
analyzing the meaning of ORS 659A.199, distinct from their arguments about
the meaning of “disclosure.”
202 Seater v. Klamath Irrigation Dist.
she raised her complaints to other qualifying individuals
apart from the managers in question.
Finally, we briefly address defendant’s argument
that, even assuming plaintiff directed some criticisms to an
appropriate party, we should nevertheless affirm the trial
court’s decision on the alternative basis defendant raised on
summary judgment below that plaintiff did not make any pro-
tected disclosures about subjects deserving of whistleblower
protection.2 Defendant asserts that plaintiff merely expressed
opinions or concerns, rendered advice, or made recommen-
dations or general references to perceived violations of rules,
none of which rise to the level of a violation of the law, or mis-
management, gross waste of funds, or abuse of authority.
We reject that argument. In reviewing the grant of
a motion for summary judgment, we view the facts in the
light most favorable to the non-moving party, in this case
plaintiff, and summary judgment is only appropriate if
there is no genuine issue as to any material fact and the
moving party is entitled to prevail as a matter of law. ORCP
47 C. Defendant’s argument for affirmance on this alterna-
tive basis rests on its characterization of the facts. However,
viewing the facts in the light most favorable to plaintiff,
as the trial court did below, many of plaintiff’s assertions
involve unlawful actions or are indicative of mismanage-
ment or gross waste of funds.3 The competing interpreta-
tions of the facts make summary judgment improper on this
basis, and thus not an alternative reason to affirm the trial
court’s dismissal of plaintiff’s claims.
Reversed and remanded.
2
When an alternative argument in support of summary judgment was made
in the trial court and “is properly presented again on appeal and raises a ques-
tion of law, we may simply resolve it[.]” Sherertz v. Brownstein Rask, 314 Or App
331, 341, 498 P3d 850 (2021), rev den, 369 Or 338 (2022) (explaining that, when
an issue was preserved but not decided in the trial court and is raised again on
appeal, it is appropriate for us to decide it, and remand is typically unnecessary
for the trial court to decide it only if it requires factual findings from conflicting
evidence, an exercise of discretion, or the like).
3
Even if some of plaintiff’s alleged facts did not constitute protected whistle-
blowing activity, the individual facts are not separate claims. Plaintiff filed one
claim under ORS 659A.199 and one claim under ORS 659A.203, alleging a com-
plex fact pattern of a systemic, years-long dispute that ultimately resulted in her
termination.