1
Argued and submitted February 12, 2019, affirmed June 24, 2020
In the Matter of the Compensation of
Sherrill J. Vaughn, Claimant.
Sherrill J. VAUGHN,
Petitioner,
v.
MARION COUNTY,
Respondent.
Workers’ Compensation Board
1603920; A167446
469 P3d 231
Claimant petitions for judicial review of a final order of the Workers’
Compensation Board. In that order, the board upheld employer Marion County’s
denial of claimant’s occupational disease claim for post-traumatic stress disorder
(PTSD), because it concluded that the workplace team meeting, investigation,
and interview that claimant contends caused her PTSD were “reasonable disciplinary” or “corrective” actions by the county, rendering her PTSD noncompensable under ORS 656.802(3)(b). On review, claimant contends that the board’s
determination was erroneous because (1) claimant was never disciplined, therefore the county’s actions were not “disciplinary” or “corrective” under the statute;
(2) the investigation was not “reasonable”; and (3) the board failed to expressly
determine whether the county’s actions were retaliatory. Held: For purposes of
ORS 656.802(3)(b), an employment action can be “disciplinary” or “corrective”
even if it does not lead to discipline, and the board did not err in finding that
the county’s investigation was reasonable. As for the board’s failure to analyze
separately whether the county’s actions were retaliatory, any error on its part
provided no basis for setting aside its order, because the board’s findings of historical fact about the reasons for the county’s investigation precluded the legal
conclusion that the investigation was retaliatory.
Affirmed.
Jodie Anne Phillips Polich argued the cause for petitioner. Also on the briefs was Law Offices of Jodie Anne
Phillips Polich, P.C.
H. Thomas Andersen argued the cause and filed the brief
for respondent.
Before Powers, Presiding Judge, and Lagesen, Judge, and
Brewer, Senior Judge.
LAGESEN, J.
Affirmed.
2 Vaughn v. Marion County
LAGESEN, J.
Claimant petitions for judicial review of a final
order of the Workers’ Compensation Board. In that order,
the board upheld employer Marion County’s denial of claimant’s occupational disease claim for post-traumatic stress
disorder (PTSD) after it concluded that the workplace team
meeting, investigation, and interview that claimant contends caused her PTSD were “reasonable disciplinary [or]
corrective … actions” by the county, rendering her PTSD
noncompensable under ORS 656.802(3)(b). On review, claimant contends that determination was erroneous for multiple
reasons. We affirm.
The parties do not contest the board’s findings of
historical fact.1 We therefore take the facts from the board’s
order, supplementing them with consistent facts from the
record as necessary. SAIF v. Tono, 265 Or App 525, 526 n 1,
336 P3d 565 (2014).
Claimant worked as a deputy for the Marion County
Sheriff’s Department for nearly 24 years. The last two of
those years she spent at the Marion County Work Center.
There, she was partnered with Deputy Swendsen. Claimant
and Swendsen did not get along. On three different occasions, claimant complained to her supervisor, Sergeant
McDaniel, about Swendsen. She said that he swore at her on
nearly a daily basis (claimant admitted that she swore back
at him). Claimant also reported that Swendsen would get to
work late and leave early. When McDaniel asked for specifics, though, such as the dates and times when Swendsen had
been late or left early, claimant could not provide them. On
the third occasion that claimant complained to McDaniel,
she added one more grievance—that she was being “bullied
and harassed” because she was an “older female.”
Based on claimant’s reports about Swendsen,
McDaniel reviewed schedules, emails, and security footage.
He determined that Swendsen did not arrive late or leave
early from work without permission, contrary to claimant’s
1
The board adopted the administrative law judge’s (ALJ) findings of fact and
supplemented those findings with its own. For that reason, we treat the ALJ’s
findings of fact as the board’s and refer to them as the board’s.
Cite as 305 Or App 1 (2020) 3
allegation. Swendsen worked with the K-9 units, which were
outside of the work center, and that meant that he was not
always in the work center itself.
The first two times that claimant spoke with
McDaniel, he just held a conversation with her. The third
time, however, he turned the complaint over to the human
resources (HR) department. Claimant’s allegations that she
was being bullied based on age and gender implicated two
different classes protected by Title VII. Because of that,
McDaniel was required to involve HR.
Waddell, an HR analyst, followed up with claimant
in a one-on-one meeting. During that meeting, claimant was
not able to provide specific examples of harassment based
on age or gender, and Waddell determined that claimant’s
complaint did not implicate Title VII. Waddell also followed
up with Swendsen. Swendsen was upset that claimant had
reported that he had been coming to work late and leaving
early, and denied that, but acknowledged that he had used
profanity in addressing claimant.
McDaniel and Waddell sought to alleviate the tension between claimant and Swendsen and, with their consent, scheduled a team meeting. The meeting did not serve
its intended purpose, and Waddell ended it because claimant
was making inconsistent statements and Waddell thought
claimant’s various statements were harming her. Based
on the number of inconsistent things that claimant said in
the meeting, Waddell suspected that claimant’s statements
might be part of a pattern of untruthfulness, something
that is of great concern in a law enforcement officer because
law enforcement officers often have to testify in court. For
that reason, she recommended that a professional standards investigation be conducted. Claimant, in turn, filed
a second formal complaint against Waddell because of the
team meeting.
Sergeant Peterson, an internal affairs officer, conducted the professional standards investigation. He interviewed Waddell and Swendsen and also collected evidence
in the form of questionnaires completed by claimant’s
coworkers. During the initial stages of his investigation, he
became aware that claimant had alleged to another officer
4 Vaughn v. Marion County
that McDaniel had physically poked her but had made inconsistent statements on that point as well, and he included
that issue in his investigation. He became aware of other
incidents as well, including alleged comments that claimant
had made about another deputy’s appearance, which broadened the scope of his investigation.
Later in the investigation, Peterson interviewed
claimant. Claimant’s union representative, Deputy McGowan,
was also present in the interview. At the beginning of the
interview, Peterson asked claimant if she was comfortable
with him doing the interview, and she indicated that she
was. The interview was roughly three hours and 23 minutes
long. Claimant’s inability to directly answer many of the
interview questions contributed to its length. Because many
of claimant’s answers were not straightforward, Peterson,
as claimant’s superior officer, ordered her to answer some
of the questions. Peterson’s orders were aggressive and
made the interview tense at times. McGowan would later
described the interview this way:
“I felt like [claimant] kept getting tripped up. There were
several points in that interview where the topics were
changed from one topic to the next and then back and
around and around and around, I was having a very difficult time following that interview, just how it bounced from
place to place to place, so I just felt like, yes, [Peterson] is
correct, he can order [claimant] to answer the question, but
the manner in which it was done, I just felt like it was—it
was difficult.”
During one of several breaks in the interview,
McGowan pointed out to Peterson that he thought that
Peterson’s method of conducting the interview was questionable. That caused Peterson to “recognize[ ] that he had
[claimant] pretty upset and he said he would try to kind
of take it down a notch, and then he did after that point.”
Peterson’s tone during most of the interview was conciliatory, understanding, and, at times, helpfully instructive
for claimant. The interview went smoothly toward its end;
claimant was conversational and animated, and, at one
moment, everyone laughed as Peterson attempted to suppress a burp.
Cite as 305 Or App 1 (2020) 5
Upon completion of the investigation, Peterson concluded that claimant had been untruthful with respect to
several of the investigated incidents. Marion County followed its “due process”2 policy of providing claimant with
copies of all materials pertaining to the investigation.
Claimant’s union later reviewed the interview. In its view,
Peterson’s interview “tactics were inappropriate and they
needed to stop immediately.”
The interview caused claimant a great deal of
stress: Her “heart was racing,” she had “blurry vision,” she
was “very upset,” she cried during parts of it, and she “felt
afraid.” After the interview, claimant experienced “shooting pain in [her] arms and shoulders” and loss of range of
motion in her shoulders.
Claimant had previously filed a workers’ compensation claim in 2003, after she was assaulted by an inmate.
For that claim, she was assessed by Dr. Silvey, a psychologist who specializes in PTSD. The accepted claim was “disabling neck strain and adjustment disorder with mixed anxiety and depressed mood.”
Claimant saw Silvey again in 2016 after she began
experiencing symptoms that were consistent with PTSD.
Silvey identified claimant’s interview with Peterson as
the major contributing cause of claimant’s PTSD, opining
that it “triggered her PTSD from 2003.” He clarified that
the assault in 2003 caused claimant’s PTSD, claimant was
able to dissociate from that incident and work effectively in
those intervening years, and the interview with Peterson in
2016—as well as the team meeting and other questioning
leading up to the interview—triggered the PTSD.
Based on Silvey’s diagnosis, claimant filed a workers’ compensation claim for “mental health/stress (anxiety,
Adjustment Disorder, PTSD) causing physical limitations
bilaterally in upper extremities due to inflammation.” The
county denied her claim.
2
As Marion County defines it, “Due process is the opportunity for the
employee to respond to the allegations or to respond to the results of the
investigation.”
6 Vaughn v. Marion County
Claimant requested a hearing before an administrative law judge (ALJ), and the ALJ affirmed the county’s
denial, concluding that ORS 656.802(3)(b) made claimant’s
PTSD not compensable because the claimed causal actions
by the employer “were reasonable disciplinary, corrective
or job performance evaluation actions within the meaning
of ORS 656.802(3)(b).” Claimant then sought review before
the board, which adopted and supplemented the ALJ’s order
and, ultimately, upheld employer’s denial. In particular,
the board rejected claimant’s contentions that the county’s
actions (1) were not disciplinary or corrective within the
meaning of ORS 656.802(3)(b) because claimant was not,
ultimately, disciplined; (2) were not reasonable ones for
various factual reasons; and (3) were not reasonable as a
matter of law because, in claimant’s view, they constituted
an unlawful employment practice under ORS 659A.203
(1)(b)(A). On the third point, the board rejected claimant’s
argument on the ground that issues concerning whether
an employment practice is unlawful are beyond the board’s
purview or jurisdiction. Claimant thereafter petitioned our
court for judicial review of the board’s decision. Before us,
claimant largely reiterates the arguments she made before
the board. We address them in turn.
At issue is the board’s interpretation and application
of ORS 656.802(3)(b). That statute provides that a worker
seeking compensation for a mental disorder alleged to be
caused by work conditions must prove that the causal work
conditions do not fall within certain categories. Pertinent
to this case, a worker must prove that the causal conditions
were not reasonable disciplinary or corrective actions:
“The employment conditions producing the mental disorder
are conditions other than conditions generally inherent in
every working situation or reasonable disciplinary, corrective or job performance evaluation actions by the employer,
or cessation of employment or employment decisions attendant upon ordinary business or financial cycles.”
ORS 656.802(3)(b) (emphasis added).
Claimant first contends that the board erred in
concluding that the team meeting, interview, and investigation were “disciplinary” or “corrective” actions within the
Cite as 305 Or App 1 (2020) 7
meaning of ORS 656.802(3)(b). Claimant’s theory, as we
understand it, is that the investigation (and its component
parts) ultimately did not lead to any disciplinary or corrective action against her and, for that reason, is not embraced
by the terms of the statute. The words “disciplinary” and
“corrective” are not delegative terms,3 so we review the
board’s order to determine whether it reflects an erroneous
interpretation of those provisions and, if so, whether the correct interpretation requires the board to take a particular
action. Tono,
265 Or App at 528; ORS 183.482(8)(a).
Here, the board’s order reflects no legal error. It
is undisputed that the county undertook its investigative
actions because claimant’s inconsistent statements gave
rise to concerns about her truthfulness, something that falls
easily within any common-sense understanding of the words
“disciplinary” and “corrective.” Dishonesty in an employee is
often grounds for discipline and certainly grounds for correction. Beyond that, to the extent that claimant contends
that investigations that do not ultimately lead to discipline
cannot be considered disciplinary for purposes of the statute, we previously have upheld the board’s determination
that an investigation that “was a required prelude to any
direct disciplinary action” was “disciplinary” for purposes of
ORS 656.802(3)(b). Crowley v. SAIF, 115 Or App 460, 462-
63,
839 P2d 236 (1992).4 In the same case, we also upheld the
board’s alternative determination that, in all events, such
an investigation qualifies as “corrective” under the statute.
3
As we discuss further below, our standard of review of an agency’s interpretation and application of a statute depends on the nature of the term or
phrase at issue. We review an agency’s interpretation and application of a nondelegative term for legal error under ORS 183.482(8)(a) “without deference to the
agency’s construction.” OR-OSHA v. CBI Services, Inc., 356 Or 577, 585,
341 P3d
701 (2014). By contrast, we review an agency’s interpretation and application of
a delegative term with deference under ORS 183.482(8)(b). That is, we review to
determine whether “the agency’s exercise of discretion” is “[o]utside the range of
discretion delegated to the agency by law,” or otherwise contrary to constitutions
and statutes or inconsistent with agency rules, formally stated positions, or past
practices. ORS 183.482(8)(b); Springfield Education Assn. v. School Dist.,
290 Or
217, 228-30,
621 P2d 547 (1980).
4
At the time we decided Crowley, the portion of ORS 656.802(3)(b) at issue in
this case was contained in ORS 656.802(2)(b). Subsequent amendments resulted
in the renumbering, but none of those amendments altered the statutory wording
at issue in this case.
8 Vaughn v. Marion County
Accordingly, we reject claimant’s comparable arguments to
the contrary.
Claimant next challenges the board’s determination that the county’s actions were “reasonable” disciplinary
or corrective measures within the meaning of ORS 656.802
(3)(b). “Reasonable” is a delegative term5 so we review under
ORS 183.482(8)(b) to determine whether the board’s exercise of discretion in implementing that term is “within the
range of discretion allowed by the more general policy of the
statute.” Springfield Education Assn. v. School Dist., 290 Or
217, 229,
621 P2d 547 (1980). As noted earlier, we conduct
that review with deference because of the discretion that the
legislature has given to the agency through the delegation.
Id.; Ogden Aviation v. Lay,
142 Or App 469, 473,
921 P2d
1321 (1996) (reviewing board’s interpretation and application of delegative term in ORS chapter 656 deferentially
under ORS 183.482(8)(b)).
Examining the board’s determination that the
county’s actions were reasonable ones, we are not able to
conclude that the board’s judgment about the reasonableness of the county’s actions falls outside the boundaries of
the board’s discretion under ORS 656.802(3)(b). The board
considered the basis for the investigation—claimant’s suspected untruthfulness—and carefully examined the manner and scope of the investigation and its component parts,
including the justification for Peterson’s aggressive orders to
claimant to answer questions—that claimant was not giving responsive answers to Peterson’s questions.
In urging us to reach a different conclusion, claimant points to several aspects of the investigation process and
the board’s analysis that, in her view, require a conclusion
that the county’s actions were not reasonable. None of those
arguments convince us that the board’s determination about
reasonableness falls outside of its discretion.
Claimant asserts that the county’s investigation was
“unprecedented” and should be deemed “per se” unreasonable
5
“Examples [of delegative terms] include such terms as ‘good cause,’ ‘fair,’
‘undue,’ ‘unreasonable,’ and ‘public convenience and necessity.’ ” CBI Services,
Inc., 356 Or at 585 (quoting Springfield Education Assn.,
290 Or at 228).
Cite as
305 Or App 1 (2020) 9
for that reason. Taken to its logical conclusion, that argument asks us to conclude that, any time an employer takes
novel steps to address a workplace discipline problem, we—
and the board—are required to hold that the employer was
acting unreasonably. That is contrary to the evident legislative intent behind ORS 656.802(3)(b) to curtail claims
for mental disorders stemming from stressful, but otherwise reasonable and generally expected, workplace conditions, including disciplinary and corrective measures. See,
e.g., Fuls v. SAIF,
321 Or 151, 161-62,
894 P2d 1163 (1995).
And the fact that the county’s actions to address claimant’s
inconsistent statements may have been a first for the county
provides no basis for displacing the board’s assessment of
reasonableness where the board examined carefully the purpose, manner, and scope of the county’s actions in response
to its reasonable belief that claimant had difficulties with
truthfulness.
Claimant also argues that the board failed to give
her own subjective responses to the interview greater weight
in its reasonableness calculus, citing Petersen v. SAIF, 78 Or
App 167, 170,
714 P2d 1108 (1986). But the board expressly
addressed that point in its analysis. It determined that,
even if “claimant’s reaction to the interview was based on
an accurate perception of real events,” that ultimately did
not change its view that the employer’s actions as a whole
were reasonable. Given the discretion delegated to the board
on the question of whether an employer’s actions are reasonable, it is not for us to say that the board had to give claimant’s subjective responses more weight than it did.
It is also worth noting that Petersen, on which claimant relies, does not support her argument. At issue in that
case was whether the stress-causing work conditions were
“objective,” that is, “real, as opposed to imaginary.” 78 Or
App at 170. Here, there is no dispute that claimant was subjected to stress-causing work conditions. The issue before us
is whether those stress-causing work conditions were reasonable, which was not before us in Petersen. In fact, the
statutory wording at issue in this case had yet to be enacted
at the time Petersen was decided, which is an additional reason why that case is not helpful to claimant.
10 Vaughn v. Marion County
Claimant asserts that the board’s reasonableness
inquiry was incorrect because the board’s order reflects that
the board only considered “the disciplinary action as a whole,”
without regard to whether any particular steps within the
employer’s process were, in and of themselves, unreasonable
in manner. Claimant posits that the board has taken an
approach that essentially would immunize employers that
take unreasonable actions in the context of a disciplinary
proceeding from claims for mental disorders resulting from
particular unreasonable actions. That, claimant contends,
is not what the legislature intended by ORS 656.802(3)(b).
We don’t disagree with claimant’s point about the
legislature’s intentions. That is, we do not see a legislative
intention to deny compensation for claims for mental disorders resulting from unreasonable disciplinary actions
by an employer simply because those actions happened to
fall in the midst of other reasonable disciplinary or corrective actions. Our decision in Liberty Northwest Ins. Corp. v.
Shotthafer, also tends to support that understanding of ORS
656.802(3)(b). See Liberty Northwest Ins. Corp. v. Shotthafer,
169 Or App 556, 565-67,
10 P3d 299 (2000) (requiring the
board to separately analyze distinct individual workplace
conditions alleged to have contributed to a mental disorder
to determine compensability and, in particular, whether
nonexcluded factors are the major contributing cause of the
mental disorder). And we acknowledge that the board’s order,
at first glance, is susceptible to the reading that claimant
gives it. But claimant’s argument overlooks the procedural
fact that the board adopted the ALJ’s order as its own and
then supplemented it with its own analysis. The ALJ’s order
determined that claimant’s “criticisms” of the underlying
parts of the county’s disciplinary actions—criticisms that
the ALJ recognized were fair points—did not make the overall investigation or its individual components unreasonable:
“Nevertheless, these criticisms do not make the entirety of
the group meeting, the entirety of the February 23, 2016
interview or the entirety of the overall investigation unreasonable.” The ALJ further determined, in particular, that
Peterson’s demeanor in the interview—the conduct of which
claimant is most critical—“was, to a large extent, the result
of his efforts to conduct a thorough interview and obtain
Cite as
305 Or App 1 (2020) 11
focused and accurate responses to specific questions.” For
that reason, we reject claimant’s contention that the board
failed to take into account the reasonableness of the individual components of the county’s overall course of disciplinary
action and, thus, fell outside the range of discretion delegated to it under ORS 656.802(3)(b).
Claimant’s final argument is that the county’s disciplinary action constituted an unlawful employment practice under Oregon’s whistleblower statute, ORS 659A.203
(1)(b)(A).6 She argues that the investigation was retaliatory
and therefore unreasonable as a matter of law, and that the
board erred when it failed to determine for itself whether
the county’s conduct violated ORS 659A.203(1)(b)(A). She
clarified at oral argument that, even if the board does not
have jurisdiction to decide unfair labor practices, those
legal standards would be relevant for the board to consider
in evaluating reasonableness. The county responds that
whether the employment actions were unlawful was not for
the board to decide.
We agree with claimant that, if the county’s disciplinary actions were an effort to retaliate against her for
bringing to light a regulatory violation by the county, the
board would act outside of its discretion by determining
those actions to be reasonable. However, claimant acknowledged at oral argument that she had submitted all of the relevant evidence on reasonableness to the board, so whether
or not the board had jurisdiction to evaluate claimant’s
claim under ORS 659A.203(1)(b)(A), any evidence of unlawful activity on the county’s part was considered and weighed
6
The board addressed claimant’s assertion that the county’s employment
actions were unlawful in a footnote, quoted here in full:
“We decline to go beyond the confines of ORS Chapter 656 and consider
employment statutes (ORS Chapter 659A) or ‘personnel administration fundamentals’ in determining whether the employer’s investigation was a reasonable disciplinary, corrective or job performance evaluation action under
ORS 656.802(3)(b). See Kenneth A. Meyer, 50 Van Natta 2302, 2304 (1998)
(issues concerning whether an employer’s action in terminating a claimant’s
employment was unlawful are not within the purview of the workers’ compensation law or appropriately considered in determining whether a worker
was terminated for a work rule violation or other disciplinary reasons under
ORS 656.325(5)(b)); Glenda Jensen, 50 Van Natta 1074, 1075 n 1 (1998) (no
jurisdiction to consider matters arising outside of Chapter 656, including
employment reinstatement disputes under Chapter 659).”
12 Vaughn v. Marion County
in the board’s reasonableness evaluation. Assuming that, as
claimant argues, the board’s belief that it had no jurisdiction to consider claimant’s retaliation claim was erroneous,
claimant has not demonstrated that “such an error would
compel any different action by the board.” Shank v. Board of
Nursing, 220 Or App 228, 237-38,
185 P3d 532 (2008) (rejecting the petitioner’s assignment of error because she failed to
challenge all grounds for the agency’s discovery ruling, leaving proper grounds for the ruling even if her assignment of
error were found to have had merit); see also Steele v. Water
Resources Commission,
248 Or App 229, 239-40,
273 P3d
243 (2012) (“If a correct interpretation of the law would not
or could not affect the agency’s action, we have no statutory
authority to do anything to the order on review.”). That is
because the board’s findings of historical fact about the reasons for the investigation would preclude the legal conclusion
that the investigation was retaliatory. The board found that
the county undertook its investigation of claimant because
of founded concerns about her truthfulness after claimant
made inconsistent statements on multiple occasions. In view
of those findings, any error in the board’s failure to analyze
separately whether the county’s actions were retaliatory in
violation of ORS 659A.203(1)(b)(A) provides no basis for us
to set aside the board’s order.
Affirmed.
