Boyd v. Legacy Health ( 2022 )

87
Argued and submitted July 30, 2020, reversed and remanded March 2, 2022
Blaine Justin BOYD,
Plaintiff-Appellant,
v.
LEGACY HEALTH,
Defendant-Respondent.
Multnomah County Circuit Court
17CV22688; A169425
507 P3d 715
Plaintiff, a former employee of defendant, Legacy Health, appeals a judg-
ment dismissing his claims for statutory retaliation and common-law wrongful
discharge. The trial court granted defendant’s motion for summary judgment on
those claims, concluding that there were no triable issues of fact as to whether
defendant had fired plaintiff because plaintiff had engaged in a statutorily pro-
tected activity or an activity that fulfilled an important public duty. On appeal,
plaintiff argues that the trial court erroneously understood his attorney’s argu-
ments as conceding that plaintiff’s employment had been terminated for a lawful
reason. Plaintiff further argues that the trial court erred in granting defendant’s
motion for summary judgment because it relied on the purported concession.
Held: The trial court erred in treating plaintiff’s attorney’s arguments at the
summary-judgment hearing as a concession that defendant had fired plaintiff for
a lawful reason. Further, in the absence of such a concession, the trial court erred
in concluding that plaintiff had not raised a genuine issue of material fact as to
defendant’s reason for terminating plaintiff’s employment.
Reversed and remanded.
Cheryl A. Albrecht, Judge.
Justin Steffen argued the cause for appellant. Also on the
briefs was Steffen Legal Services, LLC.
Crystal S. Chase argued the cause for respondent. Also
on the brief were Brenda K. Baumgart, Caroline J. Livett
and Stoel Rives, LLP.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and DeHoog, Judge pro tempore.*
DeHOOG, J. pro tempore.
Reversed and remanded.
______________
* Lagesen, C. J., vice Hadlock, J. pro tempore.
88 Boyd v. Legacy Health
DeHOOG, J. pro tempore
Plaintiff, a former employee of defendant, Legacy
Health, appeals a judgment dismissing his claims for stat-
utory retaliation and common-law wrongful discharge. The
trial court granted defendant’s motion for summary judg-
ment on those claims, concluding that there were no triable
issues of fact as to whether defendant fired plaintiff because
plaintiff had engaged in a statutorily protected activity
or an activity that fulfilled an important public duty, as
required to establish plaintiff’s claims. Plaintiff raises a
single assignment of error in which he argues that the trial
court erred in concluding that he had not raised a genuine
issue of fact as to any of his claims. We agree with plaintiff
that, to the extent that the trial court treated his attorney’s
arguments at the summary-judgment hearing as a conces-
sion that defendant had fired plaintiff for a lawful reason,
the court erred. We further agree that, in the absence of
such a concession, the trial court erred in concluding that
plaintiff had not raised a genuine issue of material fact as to
defendant’s reason for terminating plaintiff’s employment.
As a result, it was error to grant defendant’s motion for sum-
mary judgment, and we, therefore, reverse and remand.
Under ORCP 47 C, summary judgment is appropri-
ate 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.”
See Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d
608 (1997). That standard is met when “no objectively rea-
sonable juror could return a verdict for the adverse party
on the matter that is the subject of the motion for summary
judgment.” ORCP 47 C.
We review an order granting summary judgment
for errors of law. Ellis v. Ferrellgas, L.P., 211 Or App 648,
652, 156 P3d 136 (2007). In conducting our review, we view
the facts and all reasonable inferences that may be drawn
Cite as 318 Or App 87 (2022) 89
from them in favor of the nonmoving party, who in this case
is plaintiff. Jones, 325 Or at 408. We state the facts in accor-
dance with that standard.
Plaintiff is a registered nurse who previously worked
nights for defendant, Legacy Health, primarily in its Neuro
Trauma Intensive Care Unit. During the night of September 6,
2016, plaintiff was working at the hospital when a medical
alarm associated with one of his assigned patients went off.
Plaintiff’s coworkers later reported that they had initially
been unable to find him, but, according to one coworker, he
was eventually found sleeping under a blanket in the same
patient’s room. Separately, but during the same shift, plain-
tiff noticed that Green, another nurse at the hospital, had
made medication and charting errors involving another of
plaintiff’s patients.
On September 15, 2016, plaintiff discussed the
September 6 incident with Cecil, the managing nurse for
his unit. Plaintiff denied the allegation that he had been
sleeping on duty. Following his meeting with Cecil, plaintiff
told a coworker about the medication and charting errors
that he had found in Green’s work. That coworker shared
plaintiff’s observations with Green, who in turn asked Cecil
to review the medical records for any errors that she might
have made.
Cecil again met with plaintiff, this time to discuss
his report that Green had made medication and charting
errors. Cecil told plaintiff that she had been unable to find
the errors that he had reportedly found. When plaintiff
asked Cecil whether he should file an “ICARE” report, which
he understood to be standard procedure, Cecil instructed
him not to do so.1 On October 7, Cecil issued plaintiff a writ-
ten “CORRECTIVE ACTION” stating that plaintiff had
been asleep or given the appearance of sleeping during his
shift on September 6 and that he had falsely reported chart-
ing errors by Green, “possibly in retaliation for her having
reported that you had not been responding to patient alarms
1
“ICARE” is the name of an internal reporting system that defendant main-
tains. Doepken, an interim manager who later replaced Cecil, testified during
her deposition that there would be “good cause to file an ICARE report” if a nurse
were to observe errors in a patient’s chart.
90 Boyd v. Legacy Health
and had been discovered in the patient’s room.” However,
another nurse, Shambry, and not Green, had made that
report to Cecil.
Two days after receiving the written reprimand
from Cecil, plaintiff went to the hospital on a night that he
was not scheduled to work and accessed defendant’s medical-
records system. Plaintiff accessed defendant’s records at
that time to verify for himself whether the charting errors
that he had observed were in fact present. As a result of that
review, plaintiff determined that Green had made charting
or medication errors.
The following week, plaintiff once more met with
Cecil and again told her what he had discovered in his
patient’s records. Cecil responded by requesting an audit
related to defendant’s privacy policies. The resulting audit
revealed that plaintiff had accessed his patient’s chart at a
time when he had not been scheduled to work.
The discovery that plaintiff had accessed a patient’s
records while off shift resulted in a meeting involving
interim manager Doepken (who had recently replaced Cecil
as plaintiff’s managing nurse following Cecil’s retirement),
Schaff, a representative from defendant’s human-resources
(HR) department, and plaintiff. At that meeting, which took
place November 11, 2016, Doepken asked plaintiff why he
had accessed the medical records on October 9, when he had
not been scheduled to work. Plaintiff did not tell Doepken
that he had accessed the records due to his concerns about
Green’s patient care or chart keeping, or, for that matter, for
any other reason.
At that point, Doepken told plaintiff that she would
have to take the audit report at “face value” and that, as
a result, his employment would be terminated. That is,
because plaintiff had accessed his patient’s medical records
without authorization, he had violated defendant’s privacy
policies. On November 14, plaintiff received a termination
letter from Doepken stating that his employment was being
terminated because he had violated defendant’s Health
Insurance Portability and Accountability Act (HIPAA) pri-
vacy policy. Doepken did not assert that plaintiff’s conduct
Cite as 318 Or App 87 (2022) 91
had somehow violated HIPAA itself, and she was unable to
identify any specific provision of defendant’s privacy pol-
icy that plaintiff had violated; she instead appears to have
relied on the fact that she did not know why plaintiff had
accessed the records when he did and that she could not
know whether plaintiff had used or intended to use the
information for an improper purpose.
Following his termination, plaintiff sued defendant
and asserted four claims: (1) statutory retaliation under
ORS 659A.199 (prohibiting discrimination due to employee’s
good-faith report of violation of law); (2) statutory retali-
ation under ORS 441.181 (prohibiting retaliatory action
against nursing staff by hospital); (3) common-law wrongful
discharge; and (4) an unpaid wage claim. The parties set-
tled plaintiff’s wage claim before trial. Plaintiff’s remain-
ing three claims were all premised on the theory that his
employment had been wrongfully terminated in retaliation
for his report of medication and charting errors.
Defendant moved for summary judgment on each of
plaintiff’s claims. Defendant argued that plaintiff had not
engaged in protected activity, as required to establish lia-
bility under ORS 659A.199 and ORS 441.181, and had not
engaged in an activity that fulfilled an important public duty,
as required by the common-law wrongful-discharge claim.
Alternatively, defendant argued that plaintiff had not pro-
duced evidence raising a genuine issue of material fact as to
whether defendant had terminated plaintiff’s employment
because he had engaged in a protected activity or an activ-
ity that fulfilled an important public duty. In that regard,
defendant argued that the summary-judgment record estab-
lished that the only reason that plaintiff’s employment had
been terminated was that he had inappropriately accessed a
patient’s medical records in violation of defendant’s HIPAA
privacy policy.
Plaintiff responded to defendant’s first argument
by identifying various Oregon administrative rules that
govern a nurse’s standard of care, arguing that those rules
imposed a duty on plaintiff to report medication and chart-
ing errors. In response to defendant’s alternative argument
regarding causation, plaintiff conceded that he had engaged
92 Boyd v. Legacy Health
in the conduct in question—that is, he had accessed patient
records at a time when he was not on duty—but argued that
his conduct had not been inappropriate and that defendant’s
stated reason for terminating his employment was merely
pretextual.
At the summary-judgment hearing, defendant asserted
that plaintiff’s briefing effectively conceded that the sole
reason that defendant had fired plaintiff was that he had
inappropriately accessed a patient’s medical charts. The
court asked plaintiff’s attorney to clarify whether in fact
that point was conceded. Counsel initially agreed that he
had made the concession; counsel quickly clarified, however,
that plaintiff’s position was that, although he acknowledged
having accessed those records, he did not concede that he
had done so inappropriately. Following that exchange, the
trial court ruled that the access had indeed been inappropri-
ate and that defendant had terminated plaintiff’s employ-
ment solely for that reason. Specifically, the court ruled:
“I’m granting the motions for summary judgment on the
first three claims, the common law claim and the two statu-
tory claims, because that’s the reason he was fired because
he—in my view, and it’s not a fact issue, he inappropriately
accessed the records.”
Accordingly, the court entered a general judgment dismiss-
ing plaintiff’s three wrongful-discharge claims. This appeal
followed.
On appeal, plaintiff raises a single assignment of
error, contending that the trial court erred “in granting
Defendant’s Motion for Summary Judgment as to Plaintiff’s
1st, 2nd, and 4th Claims for Relief.”2 Plaintiff argues that
the trial court erred in accepting his attorney’s purported
2
As an initial matter, defendant urges us to reject plaintiff’s assertions of
error without consideration because his brief does not comply with ORAP 5.45(2)
(“Each assignment of error must be separately stated.”) or ORAP 5.45(3) (“Each
assignment of error must identify precisely the legal, procedural, factual, or other
ruling that is being challenged.”). To the extent that plaintiff’s opening brief may
be deficient in that manner, we nonetheless decline defendant’s suggestion and
proceed to the merits of this appeal. See Appleyard v. Port of Portland, 311 Or App
498, 492 P3d 71 (2021) (addressing merits of an appeal where opening brief erro-
neously identified appeal issues in preservation section rather than assigning
them as error).
Cite as 318 Or App 87 (2022) 93
concession and, largely due to that concession, concluding
as a matter of law that defendant had terminated plaintiff’s
employment solely because he had inappropriately accessed
medical records. For the reasons that follow, we agree with
plaintiff that his attorney’s statements cannot reasonably be
understood as having conceded that defendant fired plaintiff
for a lawful reason. We further conclude that, whether or not
the trial court viewed counsel’s statement as a concession, it
erroneously understood that plaintiff’s claims could not suc-
ceed if he had inappropriately accessed a patient’s records,
a matter that the court appears to have decided as a ques-
tion of law. Finally, we disagree with defendant’s assertion
that the trial court’s rulings should be upheld on the basis
of one of the alternative arguments that defendant made to
the trial court but that the court did not decide. Accordingly,
we reverse and remand.
As noted, at the summary-judgment hearing, defen-
dant characterized plaintiff’s written argument as conced-
ing that defendant had fired plaintiff only because he had
inappropriately accessed a patient’s medical records. The
following exchange then took place between the trial court
and plaintiff:
“THE COURT: —do you think you admit in your response
that your client admits that the sole reason he was fired
was because he accessed the patient records during the
middle of [the] night that time?
“[PLAINTIFF’S COUNSEL]: Yes, your honor. I—
“THE COURT: You admit that was the sole reason he
was fired?
“[PLAINTIFF’S COUNSEL]: Well, I admit that he was
fired because Legacy says that access was inappropriate—
“THE COURT: Well, that’s different.
“[PLAINTIFF’S COUNSEL]: —and violated—
“THE COURT: You—you agree that that’s the reason he
was terminated?
“[PLAINTIFF’S COUNSEL]: Yes.
“* * * * *
94 Boyd v. Legacy Health
“THE COURT: So, if he was terminated because he vio-
lated their patient privacy rules, then he wasn’t retaliated
against, was he?
“[PLAINTIFF’S COUNSEL]: Right. And that’s where the
difference is. I don’t think he did violate either of the poli-
cies, certainly not the law itself.
“THE COURT: I understand, though. I think he did.
“* * * * *
“[PLAINTIFF’S COUNSEL]: Isn’t that a question of
facts?
“THE COURT: No, it’s not. He admits what he did.
There’s no facts in dispute. The question is whether that
constituted a violation of the policy, and I think it was.
“* * * * *
“THE COURT: Tell me what response you might have to
that.
“[PLAINTIFF’S COUNSEL]: If it’s determined that the
access was inappropriate, then I agree. His claims would
fail.
“* * * * *
“[PLAINTIFF’S COUNSEL]: —with all due respect,
maintain that’s a question of fact for the jury[.]”
The court then granted defendant’s motion for summary
judgment on all three of plaintiff’s wrongful-discharge
claims, evidently ruling as a matter of law that the reason
that plaintiff had been fired was because he had inappropri-
ately accessed a patient’s medical records.
The trial court’s stated rationale for granting sum-
mary judgment is flawed in at least two ways. First, in light
of plaintiff’s summary-judgment briefing—which, contrary
to defendant’s assertion, does not concede that defendant
fired plaintiff for a lawful reason—counsel’s statements
cannot be understood as making such a concession. Second,
without that concession, the court was mistaken to under-
stand that its conclusion that plaintiff had violated defen-
dant’s privacy policies necessarily resolved any otherwise
genuine issues of material fact. In other words, even if the
Cite as 318 Or App 87 (2022) 95
trial court correctly concluded that the question of whether
plaintiff’s conduct violated defendant’s privacy policies was
one of law—a matter on which we express no opinion—it
was mistaken to conclude that that necessarily disposed of
plaintiff’s claims. More specifically, even if plaintiff’s con-
duct in accessing a patient’s medical chart on his day off
gave defendant a lawful reason to terminate his employ-
ment, that conclusion would not necessarily resolve any fac-
tual dispute as to whether in fact plaintiff had been fired
for that reason or, instead, for the unlawful reason that he
had engaged in protected activity or activity that fulfilled
an important public duty.
To understand our first conclusion, plaintiff’s state-
ments at the hearing must be placed in the context of the
argument that he made before the hearing in his written
response to defendant’s summary-judgment motion. As we
understand that argument, his position was essentially that
his entire course of conduct—his discovery of Green’s medi-
cation and charting errors, his reporting of that discovery to
Cecil, and his subsequent confirmation of the errors by con-
sulting the records system on his day off—collectively con-
stituted the protected activity that led to his termination.
Given that understanding, counsel’s affirmative response
to the trial court’s question, “[Y]ou agree that that’s the
reason he was terminated?” is simply counsel’s agreement
that plaintiff was fired for engaging in a course of protected
activity that culminated in accessing his patient’s medi-
cal records. That is especially apparent given the below
exchange, which preceded counsel’s ostensible concession.
As noted above, the relevant colloquy began with
the trial court asking:
“[D]o you think you admit in your response that your
client admits that the sole reason he was fired was because
he accessed the patient records during the middle of [the]
night that time?”
As counsel began to respond, the court repeated its ques-
tion, asking, “You admit that was the sole reason he was
fired?” Plaintiff’s attorney responded, “Well, I admit that he
was fired because Legacy says that access was inappropriate
* * * and violated—.” (Emphasis added.) Before counsel could
96 Boyd v. Legacy Health
tell the court what defendant was saying plaintiff’s con-
duct had violated—which, in context, appears to have been
defendant’s privacy policies—the trial court asked its ques-
tion, “You agree that that’s the reason he was terminated?,”
provoking counsel’s affirmative response. At most, then,
that response can be viewed as conceding that defendant’s
proffered reason for firing him was that he had accessed a
patient’s records when off shift, and not that defendant had
in fact acted on that basis.
As for our second conclusion—that the trial court
mistakenly understood that plaintiff could not prevail if his
conduct violated defendant’s privacy policy—we note that
the court appears to have relied on a faulty premise. The
trial court asked plaintiff, “[I]f he was terminated because
he violated their patient privacy rules, then he wasn’t retal-
iated against, was he?” Plaintiff indicated his agreement
with that statement in the abstract, but emphasized his
view was that there had been no violation. Wholly missing
from this discussion, however, is whether in fact that was
defendant’s reason for firing plaintiff. And that question—
whether the true motivation for plaintiff’s termination was
that he had inappropriately accessed a patient’s medical
records—is a question of fact. “A plaintiff’s prima facie case
does not disappear merely because a defendant asserts a
non-discriminatory reason which may or may not persuade
the trier of fact.” Henderson v. Jantzen Inc., 79 Or App 654,
658, 719 P2d 1322, rev den, 302 Or 35 (1986) (rejecting defen-
dant’s argument that it was entitled to summary judgment
simply because the record could support its general defense).
By proceeding from the premise that plaintiff could
not prevail on any of his wrongful-discharge claims if he
had violated defendant’s privacy policies, the trial court mis-
applied the summary-judgment standard. True, if, in fact,
plaintiff violated defendant’s policies and if, in fact, defen-
dant fired him for that reason, plaintiff would be unable to
establish an essential element of each of his claims, namely,
that defendant had fired him because he had engaged in
a protected activity. But because defendant’s true motiva-
tion was a question of fact and plaintiff did not concede the
answer to that question, the trial court should not have
granted summary judgment on that basis. See, e.g., Huber
Cite as 318 Or App 87 (2022) 97
v. Dept. of Education, 235 Or App 230, 240, 230 P3d 937
(2010) (“Whether an employer who discharged an employee
was motivated by an impermissible reason is a question of
fact.”).
Although we conclude that the trial court’s stated
rationale for granting summary judgment was erroneous,
that conclusion does not wholly resolve this appeal. Citing
Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or
634, 659-60, 20 P3d 180 (2001), defendant contends that we
can and should uphold the court’s summary-judgment rul-
ing because it was “right for the wrong reason.” As alterna-
tive bases on which we might affirm, defendant argues the
following: (1) plaintiff’s statutory-retaliation claims fail as a
matter of law because he did not engage in “protected activ-
ity” under ORS 659A.199(1) or ORS 441.181(1);3 (2) plaintiff’s
activity did not fulfill an important public duty as required
for a common-law wrongful-discharge claim; and (3) the sole
decision-maker regarding plaintiff’s termination lacked a
retaliatory motive, which precludes a finding of causation as
to any of plaintiff’s three claims.
Before considering those alternative arguments, we
note that, as we recently clarified in Sherertz v. Brownstein
Rask, 314 Or App 331, 341, 498 P3d 850 (2021), the “right
for the wrong reason” doctrine is not implicated in an appeal
such as this one, where the alternative arguments were
raised in the trial court and not for the first time on appeal.
Here defendant raised each of the foregoing arguments in
briefing to the trial court, and plaintiff was afforded an
opportunity to respond to them. Additionally, those argu-
ments all raise questions of law, and it is therefore appropri-
ate for us to consider them. Id. (when alternative argument
has been made in the trial court and raises a question of
law, we may simply resolve it). Thus, we proceed to consider
defendant’s arguments without first determining whether
3
As we turn to the specifics of plaintiff’s statutory claims, we observe that
neither ORS 659A.199(1) nor ORS 441.181(1) expressly refers to “protected activ-
ity.” The parties, however, use that term as shorthand for conduct that each of
those provisions encourage by prohibiting discrimination or retaliation against
employees who engage in such conduct. We use the term with the same under-
standing throughout this opinion, as has been our practice. See e.g., Meyer v.
Oregon Lottery, 292 Or App 647, 426 P3d 89 (2018).
98 Boyd v. Legacy Health
they satisfy the requirements of Outdoor Media Dimensions
Inc. See id. (noting additional requirements and discretion-
ary character of “right for the wrong reason” review).
Defendant’s first two alternative arguments raise
essentially the same issue: whether plaintiff’s conduct in
reporting perceived medication and charting errors in
another nurse’s work constituted protected activity, as
required to establish plaintiff’s statutory claims, or ful-
filled an important public duty, a required element of his
common-law claim. Although our analysis as to each differs
somewhat, we conclude in each instance that defendant’s
argument fails.
We begin with defendant’s argument that plaintiff’s
statutory-retaliation claim under ORS 659A.199(1) fails as
a matter of law because plaintiff did not engage in protected
activity. Specifically, defendant argues that, rather than con-
stituting a protected disclosure, plaintiff’s conduct of report-
ing Green’s charting error to his manager Cecil amounted
only to a general complaint regarding Green’s performance.
For the following reasons, we disagree.
Under ORS 659A.199(1),
“[i]t is an unlawful employment practice for an employer
to discharge, demote, suspend or in any manner discrim-
inate or retaliate against an employee with regard to pro-
motion, compensation or other terms, conditions or privi-
leges of employment for the reason that the employee has
in good faith reported information that the employee believes
is evidence of a violation of a state or federal law, rule or
regulation.”
(Emphasis added.) As we have previously explained, ORS
659A.199 applies a subjective, good faith standard to
employees who report perceived violations of the law. See
Hall v. State of Oregon, 274 Or App 445, 453, 366 P3d 345
(2015) (noting that ORS 659A.199’s express “[r]eference to
the employee’s belief indicates a subjective, good faith stan-
dard”). Thus, an employee has engaged in protected activity
under that provision if the employee has reported informa-
tion that he or she subjectively believes is a violation of a
Cite as 318 Or App 87 (2022) 99
state or federal law, rule, or regulation and has a good faith
basis for that belief.
Plaintiff has identified several state administrative
rules establishing nursing standards that a nurse’s chart-
ing errors might violate. As one example, OAR 851-045-0070
(4)(c) expressly identifies “entering inaccurate, incomplete,
falsified or altered documentation into a health record or
agency records” as “conduct derogatory to the standards of
nursing.” Here the record includes plaintiff’s testimony that
he had found inaccurate entries in a patient’s chart made by
another nurse, Green. Defendant does not dispute that, if
in fact Green made charting errors, that conduct would fall
short of the nursing standards established by, among other
provisions, OAR 851-045-0070(4)(c). Thus, if a jury or other
factfinder were to believe plaintiff’s testimony as to what
he had discovered in his patient’s chart, it could reasonably
infer both that he had subjectively believed that Green’s per-
formance violated OAR 851-045-0070(4)(c) and that he had a
good faith basis in fact and law for that belief, even if it were
to ultimately prove untrue. As a result, defendant’s conten-
tion that plaintiff could not, as a matter of law, establish
that he had engaged in protected activity for purposes of
ORS 659A.199(1) fails.
We reach a similar conclusion as to plaintiff’s claim
under ORS 441.181(1). That statute specifically governs
retaliatory actions in the health-care context and provides,
in relevant part,
“A hospital may not take retaliatory action against a
nursing staff because the nursing staff:
“(a) Discloses or intends to disclose to a manager, a pri-
vate accreditation organization or a public body an activity,
policy or practice of the hospital or of a hospital that the
nursing staff [4] reasonably believes is in violation of law or
a rule or is a violation of professional standards of practice
4
Under ORS 441.179(4), “nursing staff” is defined as including, among oth-
ers, registered nurses and licensed practical nurses. “Retaliatory action” includes
“discharge * * * or other adverse action taken against a nursing staff in the terms
or conditions of employment of the nursing staff, as a result of filing a complaint.”
ORS 441.179(6).
100 Boyd v. Legacy Health
that the nursing staff reasonably believes poses a risk to
the health, safety or welfare of a patient or the public[.]”
Defendant’s principal argument appears to be that, because
plaintiff’s report related to an individual nurse’s perfor-
mance, rather than a hospital-wide concern, it cannot have
been a disclosure of “an activity, policy or practice * * * of
a hospital” so as to be protected activity under this provi-
sion. See ORS 441.181(1) (emphasis added). We disagree.
Defendant does not dispute that chart maintenance is a
hospital “activity,” and it cannot reasonably dispute that an
entity like a hospital acts through its employees and other
human agents, including its nurses. Beyond that, defendant
points to nothing in the plain text of ORS 441.181(1) or else-
where that can support its argument that plaintiff’s report
of Green’s charting error was not protected activity under
that statute.5 Thus, we reject defendant’s second statutory
argument for much the same reason as its first.
Turning to defendant’s argument under the com-
mon law, we conclude that, to the extent that plaintiff dis-
covered another nurse’s errors in his patient’s chart, his
conduct in reporting those errors fulfilled an import public
duty so as to satisfy that element of his wrongful-discharge
claim. “The discharge of an employee is actionable where
the employee is discharged for fulfilling an ‘important pub-
lic duty.’ Babick v. Oregon Arena Corp., 333 Or 401, 407, 40
P3d 1059 (2002). Whether an ‘important public duty exists’
is a question of law.” Huber, 235 Or App at 242. Defendant
argues that, as a matter of law, plaintiff cannot satisfy
that element of his wrongful-discharge claim. We conclude
otherwise.
We have explained the “public duty” element of a
common-law wrongful-discharge claim as follows:
“If a party brings a common-law wrongful discharge claim
under the important-public-duty exception to at-will employ-
ment, ‘it is necessary to find a public duty, not create one,
using constitutional and statutory provisions, or the case
5
Defendant points to various statutory definitions of “hospital,” but none of
those supports an argument that ORS 441.181(1) applies only to institution-wide
activities or that a hospital can act autonomously, as opposed to through its
human agents.
Cite as 318 Or App 87 (2022) 101
law of this or other jurisdictions.’ [Babick, 333 Or] at 409
* * * When identifying an important public duty, ‘we review
statutes and other authorities for evidence of a substantial
public policy that would * * * be “thwarted” if an employer
were allowed to discharge its employee without liability.’
Banaitis v. Mitsubishi Bank, Ltd., 129 Or App 371, 380, 879
P2d 1288 (1994), rev dismissed, 321 Or 511 (1995) (quoting
Nees [v. Hocks], 272 Or [210, ]219[, 536 P2d 512 (1975)]).”
McManus v. Auchincloss, 271 Or App 765, 771–72, 353 P3d
17, rev den, 358 Or 145 (2015). Thus, we must determine
whether some source of law makes it a public duty for nurses
who observe charting errors to report what they have
observed. Id. at 771 (emphasizing our role to “find” a public
duty, not to create one); see also Huber, 235 Or App at 242-44(finding public duty in former administrative rule requiring
a person that knows that a licensed nurse’s behavior or prac-
tice has fallen below accepted nursing standards to report
the nurse to an appropriate authority figure).
As with his statutory claims, plaintiff points to var-
ious administrative rules as establishing a public duty to
report. Defendant acknowledges those rules, but, seeking to
distinguish plaintiff’s reliance on cases like Huber, defen-
dant argues that, in those cases, the source of law created
an affirmative reporting requirement, whereas in plaintiff’s
case no such obligation exists. We are not persuaded. First,
our opinion in Huber itself recognized “that, for purposes of
a common-law wrongful discharge claim, an important pub-
lic duty could theoretically arise ‘in the absence of a specific
legal obligation to perform the act or acts that trigger the
discharge,’ ” even if it is also true that “the sources of law
that express the asserted ‘public policy’ must in some sense
speak directly to those acts.” 235 Or App at 243 (quoting
Lamson v. Crater Lake Motors, Inc., 346 Or 628, 637-38, 216
P3d 852 (2009)). In other words, we have recognized that
a person may be performing an important public duty by
making a report even in the absence of a specific mandatory
duty to do so.
Second, in addition to OAR 851-045-0070(4)(c), dis-
cussed above, plaintiff was subject to OAR 851-045-0090(1),
which imposes the following requirement:
102 Boyd v. Legacy Health
“A licensee [6] knowing of a licensed nurse whose nursing
practice fails to meet accepted standards for the level at
which the nurse is licensed, shall report the nurse to the
person in the work setting who has authority to institute
corrective action.”
(Emphasis added.) Although the specific rule at issue in
Huber appears to have been repealed, OAR 851-045-0090(1)
imposes a reporting requirement that is materially indis-
tinguishable from the earlier rule. See Huber, 235 Or at
243 (discussing former OAR 851-045-0020(3) (Jan 3, 1995)).
Thus, even more so than with the rule we considered in
Huber, which applied when a substandard practice was dan-
gerous enough to require a report to the nursing board, see
id. at 243-44, here it is evident that OAR 851-045-0090(1)
imposes a public duty for nurses to report in accordance with
its terms, which requires nurses to report observed nursing
deficiencies at least to their supervisors. Furthermore, a rea-
sonable factfinder could find on this record that the charting
errors that plaintiff observed were sufficient to give rise to
that duty. Accordingly, defendant’s second alternative argu-
ment also fails.
Turning finally to defendant’s third alternative
argument, we conclude that the summary-judgment record
in this case was sufficient to raise a genuine issue of fact
regarding causation, a material element of each of plain-
tiff’s claims. Defendant argues that plaintiff cannot satisfy
that element because he admitted that Doepken, the sole
decision-maker regarding his termination, lacked the requi-
site retaliatory motive, and nothing in the record supports
an inference that her decision to fire plaintiff was causally
related to any protected activity in which plaintiff may have
engaged. Defendant, however, takes too narrow a view of
the summary-judgment record.
To recover on his statutory and common-law wrong-
ful discharge claims, plaintiff must establish that the pro-
tected activity he engaged in was a substantial factor in the
decision to terminate his employment. See Ossanna v. Nike,
Inc., 290 Or App 16, 28, 415 P3d 55 (2018); aff’d 365 Or 196,
6
Under the applicable OARs, a licensee includes a registered nurse such as
plaintiff. OAR 851-006-0000(82) (defining “licensee”).
Cite as 318 Or App 87 (2022) 103
445 P3d 281 (2019) (noting previous cases in employment-
retaliation context that required proof that the employee’s
protected activity was a substantial factor in the employer’s
adverse decision); see also Estes v. Lewis and Clark College,
152 Or App 372, 381, 954 P2d 792, rev den, 327 Or 583(1998) (articulating the same requirement for common-law
wrongful-discharge claim). We conclude that, notwithstand-
ing plaintiff’s concession that Doepken personally lacked a
retaliatory motive, the summary-judgment record was suffi-
cient to raise a triable issue of fact regarding causation.
One way for a plaintiff to satisfy the causation ele-
ment in an employment-retaliation case is to rely on the
imputation of subordinate bias—or “cat’s paw”—theory.
Ossanna, 290 Or App at 28-33. Under the cat’s paw theory,
a biased retaliatory motive held by the subordinate of an
independent decision-maker can be imputed to the decision-
maker if the biased subordinate influenced, affected, or was
involved in the adverse employment decision against the
plaintiff. Id. at 23 (providing an example of a cat’s paw jury
instruction).
Here, when viewed in the light most favorable to
plaintiff, the summary-judgment record was arguably suffi-
cient to support a cat’s paw theory of causation. See id. at 34(noting that burden of establishing existence of a disputed
fact issue is not high; the record need only be “capable of
supporting the inference that [a decision-maker’s] ostensibly
independent employment decision was not wholly insulated
from her subordinates’ wrongful motives”). True, it is undis-
puted that Doepken personally lacked a retaliatory motive,
and it was Doepken who fired plaintiff following her meet-
ing with plaintiff and HR representative Schaff. However,
although Doepken was plaintiff’s acting manager at the
time, she had only recently replaced his previous manager,
Cecil. Other than questioning plaintiff at their meeting,
Doepken does not appear to have conducted an indepen-
dent investigation of plaintiff’s performance or conduct.
And before the meeting, Doepken spoke with Cecil, and
Cecil told Doepken that she had previously issued plaintiff
a “corrective action”; it was also Cecil who had told Doepken
about the “Epic report” containing the results of defendant’s
104 Boyd v. Legacy Health
privacy audit and confirming plaintiff’s off-duty accessing of
a patient’s chart.
To be sure, Doepken emphasized in her deposition
that the decision to terminate plaintiff’s employment had
been her own and that the earlier written reprimand had
not factored into her decision. That, she said, had been
based solely upon plaintiff having accessed patient records
without authorization and having failed to offer any expla-
nation for that conduct at their meeting. However, given that
Doepken both was aware of Cecil’s earlier conclusions and
stepped directly into Cecil’s shoes as plaintiff’s supervisor, a
factfinder might reasonably infer that Cecil had “influenced,
affected, or [been] involved” in Doepken’s ultimate decision.
Id. at 23. Therefore, if there was evidence in the summary-
judgment record to support a finding that Cecil held a retal-
iatory motive, then the trial court could not, as defendant
argues, have granted summary judgment on the alternative
basis that plaintiff could not establish causation.
Plaintiff contends that there was such evidence,
and we agree. Plaintiff’s complaint alleged that Cecil had
retaliated against him for reporting medication and chart-
ing errors in order to protect the reputations of defendant,
of Green, and of Cecil herself. As evidence to support that
allegation, plaintiff points to the fact that he was fired
not long after he had engaged in protected activity, with
Doepken terminating his employment less than two months
after he had reported Green’s charting errors. Citing our
opinion in Huber, plaintiff argues that that temporal rela-
tionship between the two events is sufficient to raise a jury
question regarding causation. See Huber, 235 Or App at 241(“close temporal proximity of an employee’s engagement in
protected activity to termination of employment is circum-
stantial evidence that the employer had an impermissible
motive”).
We are not necessarily persuaded that the timing
of plaintiff’s termination was itself sufficient to support
the finding that his employer had an impermissible motive.
Nonetheless, we conclude that in this case, that evidence,
together with other evidence in the record, was sufficient to
raise a question of fact for a jury or other factfinder. As we
Cite as 318 Or App 87 (2022) 105
explained in Meyer v. Oregon Lottery, 292 Or App 647, 681-
82, 426 P3d 89 (2018),
“Proof of a causal connection between protected con-
duct and a materially adverse action can be established
(1) ‘indirectly, by showing that the protected activity was fol-
lowed closely by discriminatory treatment or through other
evidence such as disparate treatment of fellow employees
who engaged in similar conduct’ or (2) ‘directly, through evi-
dence of retaliatory animus directed against a plaintiff by
the defendant.’ Boynton-Burns v. University of Oregon, 197
Or App 373, 380, 105 P3d 893 (2005) (emphases in original;
internal quotation marks omitted). In Boynton-Burns, we
elaborated on the initial portion of that test by noting that,
‘[i]f the plaintiff attempts to establish the causal connection
indirectly, relying on mere temporal proximity between the
events, the events must be “very close” in time.’ 197 Or App
at 381, 105 P3d 893 (citing Clark County School Dist. v.
Breeden, 532 US 268, 273, 121 S Ct 1508, 149 L Ed 2d 509(2001)).”
Thus, as plaintiff argues, evidence that his termination
followed his report of Green’s charting errors can serve as
circumstantial evidence that the two were causally related.
If, however, he sought to overcome defendant’s summary-
judgment motion based solely on that temporal relationship
between the two events, he would have to establish that the
events were “very close in time.” Id. at 682 (internal quota-
tion marks omitted).
Here, we need not determine whether the approx-
imately two months between plaintiff’s protected activity
and his termination were close enough in time for the issue
of causation to go to a factfinder. See id. (noting that “Oregon
case law has not identified how ‘very close’ in time” events
must be to raise issue of fact without further evidence of
causation); but see also id. at 683 (concluding there that a
“gap of one to two months between the claimed protected
activity and the subsequent adverse action [was] sufficient
to raise an issue of fact on causation.”). That is because the
circumstantial evidence in this case was not limited to the
relative timing of plaintiff’s termination. Rather, plaintiff
also produced evidence indicating that Cecil had errone-
ously indicated that plaintiff may have been retaliating
106 Boyd v. Legacy Health
against Green in making his report, when Green had not
been the nurse who reported that plaintiff had been sleep-
ing, and that Cecil had expressly told plaintiff not to file an
“ICARE” report, even though, as Doepken testified, chart-
ing errors were an appropriate occasion for nursing staff to
file such reports.
From that evidence, a factfinder might reasonably
infer that Cecil was motivated to discredit plaintiff’s report
that nursing staff had made charting errors, thereby pro-
tecting the reputational interests of defendant and other
employees. When viewed together with the timing of plain-
tiff’s termination, that evidence was sufficient to raise a fact
issue as to causation. Cf. Huber, 235 Or App at 241 (consider-
ing, as “further support” for inference of retaliatory motive
under ORS 659A.203, “temporal proximity” between defen-
dant’s discovery of plaintiff’s engagement in protected activ-
ity and his discharge by employer). Accordingly, it would not
have been appropriate for the trial court to grant defendant
summary judgment on the alternative basis that there was
not a factual dispute as to causation, and we reject defen-
dant’s alternative argument urging that we affirm on that
ground.
In light of the foregoing, we conclude that the trial
court’s stated rationale for granting summary judgment was
flawed, in that the summary-judgment record did not estab-
lish, as a matter of law, that defendant terminated plain-
tiff’s employment for a lawful reason. Moreover, defendant’s
proffered alternative bases for affirming the dismissal
of plaintiff’s claims fail because the summary-judgment
record raises genuine questions of material fact as to plain-
tiff’s engagement in protected activities or fulfillment of an
important public duty and defendant’s termination of his
employment in retaliation therefor. Accordingly, we conclude
that the trial court committed reversible error in granting
summary judgment as to each of plaintiff’s claims, and we
therefore reverse the trial court’s summary-judgment rul-
ings and remand for further proceedings.
Reversed and remanded.