288
Argued and submitted March 27, 2019; portion of judgment dismissing
plaintiff’s statutory claims reversed and remanded, otherwise affirmed
July 8, 2020
Margarita VERGARA,
an individual,
Plaintiff-Appellant,
v.
Komal PATEL,
an individual;
Jay Maharaj, Inc., an Oregon corporation,
dba University Inn & Suites; and
Alko 100 LLC, an Oregon limited liability corporation,
dba Eugene University Inn & Suites,
Defendants-Respondents.
Lane County Circuit Court
17CV35103; A167209
471 P3d 141
Plaintiff brought against defendants two statutory employment claims and
a common-law wrongful discharge claim. She timely filed the original complaint
naming an individual as the defendant, but her amended complaint, naming two
business entities as defendants, was filed after the limitations period had ran on
the statutory claims. The trial court granted summary judgment to defendants
on the grounds that the statutory claims were time-barred and that the wrongful discharge claim was unavailable to plaintiff. Held: (1) With respect to the
statutory claims, plaintiff’s amended complaint related back to her original complaint under ORCP 23 C, because the business entities should reasonably have
understood from the original complaint that they were the intended defendants.
(2) With respect to the wrongful discharge claim, the existence of functionally
adequate statutory remedies precluded plaintiff from pursuing that common-law
remedy.
Portion of judgment dismissing plaintiff’s statutory claims reversed and
remanded; otherwise affirmed.
R. Curtis Conover, Judge.
Kate Suisman argued the cause and filed the briefs for
appellant.
Alexandra P. Hilsher argued the cause for respondents.
Also on the brief were Lillian Marshall-Bass and Hershner
Hunter, LLP.
Cite as 305 Or App 288 (2020) 289
Before Ortega, Presiding Judge, and Powers, Judge, and
Linder, Senior Judge.
ORTEGA, P. J.
Portion of judgment dismissing plaintiff’s statutory claims
reversed and remanded; otherwise affirmed.
290 Vergara v. Patel
ORTEGA, P. J.
After being terminated as a hotel housekeeper,
plaintiff brought this action against defendants, alleging
statutory employment claims under ORS 654.062(5) and
ORS 659A.199 and a common-law wrongful discharge claim.
She timely filed the original complaint naming an individual as the defendant, but her amended complaint, naming
two business entities as defendants, was filed after the limitations period had ran on the statutory claims. Defendants
moved for summary judgment on all of the claims, on the
grounds that the statutory claims were time-barred and that
the wrongful discharge claim was unavailable to plaintiff.
The trial court granted defendants’ motion in its entirety.
On appeal, plaintiff challenges the trial court’s dismissal of
all of her claims.
We conclude, with respect to the statutory claims,
that plaintiff’s amended complaint relates back to her original complaint under ORCP 23 C, because the business entities should reasonably have understood from the original
complaint that they were the intended defendants. With
respect to the wrongful discharge claim, we conclude that
the existence of functionally adequate statutory remedies
precludes plaintiff from pursuing that common-law remedy.
Accordingly, we reverse and remand the trial court’s dismissal of plaintiff’s statutory claims but affirm its dismissal
of plaintiff’s wrongful discharge claim.
I. FACTUAL AND PROCEDURAL HISTORY
In reviewing the trial court’s grant of summary
judgment to defendants, we view the record and all reasonable inferences drawable therefrom in the light most favorable to plaintiff, the nonmoving party, to determine whether
any genuine issue of material fact exists and whether defendants are entitled to judgment as a matter of law. ORCP
47 C; Jones v. General Motors Corp., 325 Or 404, 408,
939
P2d 608 (1997).
Plaintiff was employed as a hotel housekeeper from
January to August 2016. In that capacity, she frequently
came into contact with syringes, drugs, blood, vomit, and
toilet facilities. Plaintiff complained to her supervisor and
Cite as 305 Or App 288 (2020) 291
hotel management many times about being provided with
inadequate or no gloves to safely perform her work. After
contracting a serious infection that her doctor believed was
likely due to exposure at work, plaintiff spoke to her supervisor again about needing gloves to protect herself. She
believed that working without gloves would be unsafe and
detrimental to her and others’ health. Despite the insistence
of her supervisor and the hotel manager that she work without gloves, plaintiff refused, and she was subsequently fired.
At the time of plaintiff’s termination, the hotel was
registered to Jay Maharaj, Inc., under the assumed business
name “University Inn & Suites.” In December 2016, Alko
100 LLC replaced Jay Maharaj, Inc., as registrant of the
hotel and amended the assumed business name to “Eugene
University Inn & Suites.”1 Komal Patel was a shareholder
and the registered agent of Jay Maharaj, Inc., and she was
a managing member and the registered agent of Alko 100
LLC. One other person was a shareholder of Jay Maharaj,
Inc., and member of Alko 100 LLC.
Plaintiff filed her original complaint alleging two
statutory employment claims on August 14, 2017, one day
before the applicable limitations period ran.2 The caption of
that complaint named as the defendant “Komal Patel, an
individual, dba University Inn & Suites,” a factually incorrect statement. In the body of the complaint, plaintiff alleged
that, at all material times, “Defendant Komal Patel[ ] was
an individual doing business as University Inn & Suites.”
The original complaint did not otherwise refer to Patel by
name. Rather, in setting out the substantive allegations
underlying her claims, plaintiff asserted that “Defendant”
1
Neither party argues that Alko 100 LLC’s status as successor registrant to
Jay Maharaj, Inc., affects this appeal.
2
Before initiating this action, plaintiff had filed a complaint with the Oregon
Bureau of Labor and Industries (BOLI). Defendants requested that the trial court
take judicial notice of the BOLI record. Although the court did not expressly do
so, it discussed details of the BOLI proceeding with the parties at the hearing on
the summary judgment motion. Therefore, we consider the BOLI record to be a
part of the summary judgment record.
That record indicates that BOLI dismissed plaintiff’s complaint and, pursuant to ORS 659A.880, gave her 90-day notice of her right to file this action
in state court. The parties do not dispute that that placed the filing deadline at
August 15, 2017.
292 Vergara v. Patel
employed her “as a housekeeper in Defendant’s hotel” and
that “Defendant unlawfully discharged [her].” The original complaint also did not mention the business entities by
name. On September 8, 2017, plaintiff served Patel with a
copy of the original complaint and a summons addressed to
“Komal Patel.”
Plaintiff’s counsel averred that, on October 3, 2017,
defendants’ counsel informed plaintiff that “she believed
the individual defendant, Komal Patel, had been incorrectly
sued and that the entities, Jay Maharaj and Alko 100, as
the operator of the Hotel during [plaintiff’s] employment
and the successor operator, were the correct defendants.”
Plaintiff thereafter served copies of the original complaint
and summonses on “Komal Patel, Registered Agent of Jay
Maharaj, Inc., dba University Inn & Suites” and “Komal
Patel, Registered Agent of Alko 100 LLC, dba Eugene
University Inn & Suites.”3
On October 9, 2017, plaintiff filed the amended
complaint, the caption of which named the defendants as
follows: “Komal Patel, an individual, Jay Maharaj, Inc., an
Oregon corporation, dba University Inn & Suites, and Alko
100 LLC, an Oregon limited liability corporation [sic], dba
Eugene University Inn & Suites.” The amended complaint
included allegations that:
“2. During plaintiff’s employment, Defendant Jay
Maharaj, Inc., was an Oregon corporation doing business
as University Inn & Suites.
“3. University Inn & Suites (the ‘Hotel’) is a hotel
located in Eugene, Oregon, in Lane County.
“4. Defendant Komal Patel is a natural person who
has owned, managed, and operated the Hotel since at least
2006.
“5. Prior to the incorporation of Defendant Jay
Maharaj, Defendant Patel owned, managed and operated
3
Although the trial court case register shows that service on the business
entities occurred on October 11, 2017, the affidavits of service state that service
occurred on October 7, 2017. In any event, it is undisputed that all defendants
were served with the original complaint within 60 days of its filing. See ORS
12.020(2) (action deemed commenced on date of filing of complaint if service
effected within 60 days of the filing).
Cite as 305 Or App 288 (2020) 293
the Hotel as an individual using the assumed business
name University Inn.
“6. Defendant Jay Maharaj is a successor in interest to
Defendant Komal Patel.
“7. In or around December 2016, Defendant Alko 100
LLC registered the assumed business name of Eugene
University Inn & Suites. Defendant Alko 100 continued
operating the Hotel.
“8. Defendant Alko 100 is a successor in interest to
Defendants Jay Maharaj and Komal Patel.
“9. Defendant Patel was a shareholder of Defendant
Jay Maharaj and is a managing member of Defendant Alko
100.
“10. Defendant Patel continues to own, manage, and
operate the Hotel.”
The amended complaint did not otherwise refer to any of
the defendants by name, and plaintiff’s allegations on the
statutory claims were largely unchanged, except that the
amended complaint used the plural term “Defendants”
where the original complaint had used the singular term
“Defendant.”
The amended complaint also added a common-law
wrongful discharge claim. Under that claim, plaintiff alleged
that defendants terminated her after she complained about
workplace health and safety conditions and the risk of the
spread of communicable diseases. Plaintiff also alleged that
Oregon law recognizes the important public policies of protecting a worker’s right to a healthy and safe workplace and
preventing the spread of communicable diseases.
Defendants moved for summary judgment, contending (1) that plaintiff’s statutory claims were time-barred
because the amended complaint was untimely and did not
meet ORCP 23 C’s requirements for relating back to the filing date of the original complaint; (2) that the adequacy of
statutory remedies precluded the common-law wrongful discharge claim; and (3) that Patel was not a proper defendant,
because plaintiff had made no allegations in the original or
amended complaint “against Patel, individually, related to
294 Vergara v. Patel
plaintiff’s working environment or the circumstances surrounding her termination.”
Plaintiff countered that summary judgment was
inappropriate as a matter of law or, alternatively, that the
trial court should grant a continuance so that she could
engage in discovery to develop the facts of the case.
After a hearing on the matter and taking it under
advisement, the trial court granted defendants’ motion for
summary judgment in its entirety and without explanation.
II. ANALYSIS
Plaintiff appeals from the ensuing general judgment, arguing that defendants were not entitled to summary judgment, because (1) her statutory claims were timely
commenced under ORCP 23 C and (2) she was not precluded
from asserting the wrongful discharge claim. On appeal,
both parties essentially reprise their arguments below.
A. Timeliness of Statutory Claims
With respect to the timeliness of the statutory
claims, the parties dispute whether plaintiff “changed the
parties” when she explicitly named the business entities
as defendants for the first time in the amended complaint.
That question affects how ORCP 23 C, which governs the
relation back of amended pleadings, applies in this case.
ORCP 23 C provides, in full:
“Whenever the claim or defense asserted in the
amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of
the original pleading. An amendment changing the party
against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided
by law for commencing the action against the party to be
brought in by amendment, such party (1) has received such
notice of the institution of the action that the party will not
be prejudiced in maintaining any defense on the merits,
and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action
would have been brought against the party brought in by
amendment.”
Cite as 305 Or App 288 (2020) 295
The first sentence of that rule states the general provision
that an amended pleading relates back to the filing date of
an original pleading so long as the claims arose out of the
same conduct, transaction, or occurrence. Harmon v. Fred
Meyer,
146 Or App 295, 298,
933 P2d 361 (1997). The second sentence of that rule imposes additional notice requirements and “applies only to amendments ‘changing the party
against whom a claim is asserted.’ ”
Id. (quoting ORCP 23 C).
In determining whether an amendment changes
a party, we have distinguished between “misnomers” and
“misidentifications.” Worthington v. Estate of Milton E.
Davis, 250 Or App 755, 760,
282 P3d 895, rev den,
352 Or
565 (2012). A “misnomer” is a plaintiff’s mistake “in naming
th[e] person or entity [to sue], that is, an error in stating
what the [correctly chosen] defendant is called.”
Id. (emphasis in original). A “misidentification,” on the other hand, is
a plaintiff’s mistake “in choosing which person or entity to
sue.”
Id. (emphasis in original). An amendment to correct a
misidentification changes the party and, therefore, triggers
the second sentence of ORCP 23 C; an amendment to correct
a misnomer does not, but rather relates back in accordance
with the first sentence of ORCP 23 C. Id. at 759-60. Plaintiff
argues that this is a case of misnomer. As we explain, we
agree.
Plaintiff primarily relies on Harmon, 146 Or App
at 297, a “misnomer” case in which the plaintiff, intending
to sue The Interlake Companies, Inc., named in the original complaint “Interlake, Inc., a Delaware Corporation,”
although no such entity operated in Oregon at that time.
However, the plaintiff correctly served the complaint on
The Interlake Companies, Inc.
Id. Afterward, he filed an
amended complaint to replace “Interlake, Inc., a Delaware
Corporation,” with “The Interlake Companies, Inc., a
Delaware corporation, aka Interlake, Inc.”
Id.
In holding that the amended complaint merely corrected a misnomer and did not “chang[e] the party” so as
to trigger the second sentence of ORCP 23 C, we stated the
following test:
“If a plaintiff states a name other than defendant’s,
but serves the correct entity with a copy of the original
296 Vergara v. Patel
complaint, and the correct entity should reasonably have
understood from the pleadings that it is the entity intended
to be sued, then an amendment of the pleadings to correct
the misnomer does not bring in a new entity and is not a
change in party.”
Id. at 299-300 (emphasis added). As we further explained,
for the purpose of identifying the sued party, “the court
must consider the complaint as a whole, including the allegations,” and a “natural extension of that analysis requires
that the summons also be considered.”
Id. at 300. Applying
that analysis in Harmon, we made several observations:
(1) the name shown in the caption of the original complaint
was substantially similar to the defendant’s correct name;
(2) the allegations in the complaint correctly described the
defendant’s business and its relationship to the plaintiff;
(3) the summons correctly stated the defendant’s name and
was properly served; and (4) there was no dispute that the
plaintiff intended to sue the defendant when he filed and
served his original complaint.
Id. at 301. Based on the foregoing factors, we concluded that the original complaint had
brought in The Interlake Companies, Inc., as a defendant,
but merely misnamed it; as such, the amendment to correct
its name did not constitute a change in parties.
Id.
We agree that Harmon supplies the applicable legal
test for determining whether there has been a change in
the parties. See Mitchell v. The Timbers, 163 Or App 312,
318-19,
987 P2d 1236 (1999) (applying “the rule set forth
in Harmon” to determine whether an amendment to correct
a defendant’s name relates back to the original complaint).
That inquiry focuses on whether, when served with a copy
of the original complaint, “the correct entity should reasonably have understood from the pleadings that it is the entity
intended to be sued[.]” Harmon,
146 Or App at 299. Applied
to the present case—in which the individual named in the
original complaint was the registered agent for the business
entities named in the amended complaint—the question
before us becomes whether Patel, when served with the original complaint naming as the defendant “Komal Patel, an
individual, dba University Inn & Suites,” should reasonably
have understood from the pleadings that the business entities Jay Maharaj, Inc., and Alko 100 LLC were the intended
Cite as
305 Or App 288 (2020) 297
defendants. We conclude that Patel should reasonably have
so understood.
“[T]he caption of a complaint is not dispositive,” and
one may look to “the allegations in the body, among other
things,” to determine the intended defendant. Johnson v.
Manders, 127 Or App 147, 149-50,
872 P2d 420, rev den,
319 Or 149 (1994). Here, aside from the caption and a body
paragraph, the original complaint made no other reference,
implicit or explicit, to Patel.4 Rather, the allegations were
against a generically termed “Defendant” and unquestionably concerned plaintiff’s employment at and termination
from “Defendant’s” hotel, “University Inn & Suites.” The
words in the caption naming the defendant might have
started with “Komal Patel, an individual,” but the rest of the
complaint made clear that the operative words were those
that followed: “dba University Inn & Suites.” Put differently,
viewing the complaint in its entirety, it is implicit that the
intended defendant of plaintiff’s employment action was the
entity doing business as the hotel from which she was fired,
rather than Patel individually, regardless of whether Patel
was doing business as that hotel. We also note that defendants do not contend that the allegations were insufficient
for them to identify the implicated hotel. Compare Mitchell,
163 Or App at 319 (observing that there was no suggestion
of “any actual confusion about the nature or identity” of
the tavern where the plaintiff sustained his injury—a factor that supported the conclusion that the defendant, who
owned that tavern, in fact understood that he was the entity
intended to be sued).
Defendants argue that, even if Patel knew that she
was factually not an individual doing business as “University
Inn & Suites,” as the original complaint alleged, she would
reasonably not understand from the original complaint that
the intended defendants were, specifically, Jay Maharaj, Inc.
(operator of the hotel at the time of plaintiff’s termination)
4
Defendants recognized as much when they argued on summary judgment
that Patel was not a proper defendant, because the original complaint stated
no allegations “against Patel, individually, related to plaintiff’s working environment or the circumstances surrounding her termination”: “[T]here are no
claims asserted against her. There’[re] no ultimate facts alleged against her
individually.”
298 Vergara v. Patel
and Alko 100 LLC (operator of the hotel at the time that this
action was commenced). However, the record indicates that
Patel, or at least her attorney, in fact believed that plaintiff
had incorrectly sued Patel individually and that she should
have sued the business entities Jay Maharaj, Inc., and Alko
100 LLC instead. That demonstrates that “the four corners
of the original complaint” contained information sufficient
for identifying the business entities as the intended defendants. See Krauel v. Dykers Corp., 173 Or App 336, 341,
21
P3d 1124 (2001) (examining “the four corners of the original complaint” to determine against whom the claim was
asserted).
Defendants stress that Patel was a layperson; even
if her attorney could identify the correct defendants from the
original complaint, she should reasonably not be expected
to have that ability. Leaving aside the business sophistication that is suggested by the many corporate hats that Patel
wore, we are still not persuaded. Patel first learned about
plaintiff’s employment concerns when she received notice
of plaintiff’s BOLI complaint, which had been filed prior to
commencement of this action. When Patel viewed the original complaint in this case, she should have understood it
with the BOLI complaint serving as context.
That context includes that the allegations in the
BOLI complaint and in the original complaint were similar; that the respondent in the BOLI matter was identified as “Komal Patel Dba University Inn”; and that BOLI
had copied “Komal Patel, Registrant” and “Komal Patel,
Authorized Representative/Agent” in correspondences. The
BOLI record also shows that “Respondent” participated in
the proceeding, denying plaintiff’s allegations on the merits.
Given that the caption “Komal Patel Dba University Inn” did
not prevent Patel from identifying the correct respondent
and participating on the merits before BOLI, the substantially similar caption of the original complaint in this case
(“Komal Patel, an individual, dba University Inn & Suites”)
likewise should not prevent Patel from understanding who
the intended defendants were, thereby procedurally barring
plaintiff’s claims. We conclude that Patel should reasonably
have understood that plaintiff had intended to sue the legal
Cite as 305 Or App 288 (2020) 299
entities doing business as “University Inn & Suites” rather
than to sue her individually.
Defendants raise two other arguments for why Patel
would reasonably not have understood from the original
complaint that Jay Maharaj, Inc., and Alko 100 LLC, rather
than Patel individually, were the intended defendants. First,
defendants point to the fact that plaintiff continued naming
Patel as an individual defendant in the amended complaint.
Second, defendants argue that Patel was confusingly served
with copies of the original complaint three times, each time
accompanied by a summons addressed to Patel differently—
once in September 2017 in her individual capacity and twice
in October 2017 in her capacity as registered agent of the
business entities after Patel’s attorney contacted plaintiff.
Both arguments are flawed as a matter of law for the same
reason.
The Harmon test asks whether the entity served
with a copy of the original complaint “should reasonably
have understood from the pleadings that it is the entity
intended to be sued[.]” Harmon, 146 Or App at 299 (emphasis added). That analysis is concerned with the context that
existed at the time the entity considered the original pleadings, such as the earlier BOLI proceeding here. Conversely,
immaterial to the analysis is “hindsight” based on events
subsequent to the original pleadings, such as the amended
complaint and the October 2017 services of the original complaint on Patel in her capacity as registered agent of the
business entities. Otherwise, the question whether an entity
should reasonably have understood that it was the entity
intended to be sued would always be a moving target that
depends on when it is asked.
Moreover, in this case, plaintiff amended the complaint and served Patel in her “registered agent” capacities
only after defendants’ counsel had stated that the business entities, rather than Patel individually, were the correct defendants. In other words, defendants had already
formed the understanding that the business entities were
the intended defendants; plaintiff’s subsequent filing of the
amended complaint and service of summonses on those entities merely confirmed as much.
300 Vergara v. Patel
We also reject defendants’ contention that Krauel,
173 Or App at 336, a “misidentification” case, is materially
indistinguishable from the present case. In Krauel, the
plaintiff was injured in a bowling alley and brought a negligence claim against “Dykers Court [sic], dba Grand Central
Bowl[.]”
Id. at 338 (alteration in original). The complaint
alleged that Dykers operated the bowling alley, but in fact,
it simply owned the premises on which the bowling alley was
located.
Id. After the statute of limitations ran, the plaintiff
filed amended complaints to correct the spelling of Dykers’
name and to add as a defendant “Cascade Entertainment,”
the entity that actually operated the bowling alley.
Id. The
plaintiff then served both Dykers and Cascade with summonses and copies of the original and amended complaints.
Id. at 338-39.
We affirmed the trial court’s dismissal of that case
based on our conclusion, “[a]fter viewing the four corners of
the original complaint,” that the “plaintiff’s original complaint state[d] a claim only against Dykers.” Id. at 341. But
that conclusion was unaccompanied by any discussion about
what was contained in the complaint that helped to identify
the intended defendant. Here, as we explained above, the
allegations of plaintiff’s original complaint were such that
Patel should reasonably have understood that the intended
defendant was the operator of the hotel that had fired plaintiff. Furthermore, Krauel is factually inapposite, because
Dykers and Cascade were “unrelated” parties,
id., whereas
here, Patel was indisputably the central figure linking
together the named defendants in the original complaint
(herself) and amended complaint (business entities of which
she was shareholder, managing member, and registered
agent).
Finally, to the extent that defendants rely on our
description of Krauel as a case involving a plaintiff’s failure “to identify all of the potentially liable defendants,”
Worthington, 250 Or App at 762, to argue that a similar
failure here makes this also a misidentification case, that
argument is unavailing. The original complaint, as discussed above, effectively identified the business entities
in substance, even though it did not correctly name them.
Cite as
305 Or App 288 (2020) 301
Therefore, if plaintiff had failed to identify any defendant in
the original complaint, that would have been Patel the individual, because, despite the caption, the complaint asserted
no claims or ultimate facts against her individually. And
defendants do not contend that it was the addition of Patel
as a defendant that prevents the amended complaint from
relating back.5
Because we conclude that Patel should reasonably
have understood from the original complaint that plaintiff intended to sue Jay Maharaj, Inc., and Alko 100 LLC,
the amended complaint merely corrected a misnomer.
Accordingly, the amended complaint did not change the
parties, and it relates back to the original complaint under
the first sentence of ORCP 23 C. The trial court erred in
granting summary judgment to defendants on plaintiff’s
statutory claims. Given our conclusion, we do not address
plaintiff’s alternative argument that the trial court abused
its discretion in denying her request for a continuance to
engage in discovery.
B. Availability of Wrongful Discharge Claim
We next address the trial court’s dismissal of plaintiff’s wrongful discharge claim. Plaintiff argues that the
facts alleged in her amended complaint give rise to a cause of
action for wrongful discharge, because she was terminated
not only for acting to protect her individual health and safety
in the workplace, but also for acting to fulfill an important
societal obligation: preventing the spread of a communicable
disease to the public. In plaintiff’s view, no adequate statutory remedy exists to vindicate the wrong that defendants
committed when they terminated her for fulfilling that societal obligation, and defendants have made no showing of a
legislative intent to preclude the common-law remedy for
wrongful discharge. Plaintiff essentially takes the position
that, unless there exist both an adequate statutory remedy
for the allegedly wrongful conduct and a legislative intent to
preclude the common-law remedy, she may bring the wrongful discharge claim.
5
Plaintiff’s opening brief notes that, by not appealing the trial court’s judgment in Patel’s favor, she has effectively dropped Patel from this case.
302 Vergara v. Patel
By contrast, defendants contend that the sole relevant question is whether an adequate remedy exists for the
allegedly wrongful conduct, and they urge us to answer that
question in the affirmative. Defendants also assert that the
case law does not support plaintiff’s distinction between protected action that is motivated by concern for her own safety
and action that is motivated by concern for the safety of
others; in defendants’ view, recognition of such a distinction
would significantly expand the tort of wrongful discharge.
To facilitate our analysis, we begin with a review
of the relevant case law. The common-law tort of wrongful
discharge is a public-policy exception to Oregon’s general
rule of “at-will” employment. Babick v. Oregon Arena Corp.,
333 Or 401, 407,
40 P3d 1059 (2002); see also Patton v. J. C.
Penney Co.,
301 Or 117, 120,
719 P2d 854 (1986), abrogated
on other grounds by McGanty v. Staudenraus,
321 Or 532,
901 P2d 841 (1995) (“at-will” rule permits an employer to
“discharge an employe[e] at any time and for any reason,
absent a contractual, statutory or constitutional requirement” to the contrary). The Oregon Supreme Court first recognized the common-law tort of wrongful discharge in Nees
v. Hocks, in which the employee was discharged for fulfilling
jury duty obligations.
272 Or 210, 218,
536 P2d 512 (1975)
(discharge of an “at-will” employee may be actionable when
it is “for such a socially undesirable motive that the employer
must respond in damages for any injury done”). Soon after
Nees, the court considered whether a claim for wrongful discharge was available to the plaintiffs in two cases: Walsh v.
Consolidated Freightways,
278 Or 347,
563 P2d 1205 (1977),
and Brown v. Transcon Lines,
284 Or 597,
588 P2d 1087
(1978). The parties’ primary disagreement—over whether
the availability of a wrongful discharge claim depends on
the adequacy of existing remedies alone (as defendant posits) or on a legislative intent to preclude the common-law
remedy as well (as plaintiff urges)—traces back to those two
decisions.
In Walsh, notwithstanding its acknowledgment
that “the community has a strong interest in maintaining safe working conditions[,]” the court determined that
the employee (a dockworker who had been discharged for
Cite as 305 Or App 288 (2020) 303
complaining to his supervisors about workplace safety violations) could not pursue a wrongful discharge claim, because
he already had “a remedy under existing law for his wrongful discharge.”
278 Or at 351. The adequacy of that alternate
remedy, the court explained, was the “one decisive difference” between Walsh and Nees.
Id. Notably, Walsh did not
inquire whether the legislature had intended, in providing
the statutory remedy, to preclude the common-law remedy.
However, a year later in Brown, the court revisited
the question whether the plaintiff (this time, an employee
who had been discharged for filing a workers’ compensation claim) may pursue a wrongful discharge claim, and it
framed the “primary focus of the problem” thus: “whether
by the enactment of [a later] statute the Oregon legislature
abolished a previously existing common law cause of action.”
284 Or at 602. The Brown court stated:
“As a general rule, if a statute which provides for a new
remedy shows no intention to negate, either expressly or by
necessary implication, a pre-existing common law remedy,
the new remedy will be regarded as merely cumulative,
rather than exclusive, with the result that a plaintiff may
resort to either the pre-existing remedy or the new remedy.
This rule is particularly applicable when the new statutory
remedy is not an adequate one.”
Id. at 610-11 (footnotes omitted). Applying that rule, the
court concluded that the statutory remedies available at the
time of the plaintiff’s discharge were not exclusive, because
the legislative history did not evince the legislature’s express
or implied intent, in adopting the statutory provisions, to
abrogate or supersede preexisting common-law remedies.
Id. at 611-12.
In thus shifting the focus of the inquiry—from the
adequacy of existing remedies to the legislative intent behind
the enactment of a particular remedy—the court appeared
to take a different approach in Brown than it did in Walsh
to address the same legal question. The court attempted to
reconcile the decisions, however, stating:
“We do not believe that our decision in this case is necessarily inconsistent with our decision in [Walsh]. Not only
was the alleged reason for the discharge of the plaintiff in
304 Vergara v. Patel
that case different from the alleged reason for the discharge
of this plaintiff, but this court concluded in Walsh (at 352)
that existing remedies then available to him under federal
statutes (under which he had, in fact, also filed a complaint)
were ‘adequate to protect both the interests of society …
and the interests of employees’ in such cases, within the
meaning of the rule as previously stated in [Nees].”
Id. at 613 (omission in original). The court also intimated
that the statutory remedies available at the time of the
plaintiff’s discharge were inadequate.
Id. at 612. Thus,
although Brown began by shifting the analysis to focus on
“legislative intent to abrogate,” it seemed to return to “adequacy of existing remedies” as the dispositive factor.
Later Oregon Supreme Court decisions continued
with that seeming analytical tension. Compare Delaney
v. Taco Time Int’l., 297 Or 10, 16,
681 P2d 114 (1984)
(“[W]here an adequate existing remedy protects the interests of society[,] … an additional remedy of wrongful discharge will not be accorded.”) with Holien v. Sears, Roebuck
and Co.,
298 Or 76,
689 P2d 1292 (1984) (an employee
discharged for resisting sexual harassment may bring a
wrongful discharge claim, “unless the provisions of ORS
chapter 659 demonstrate the legislature’s intent not only to
provide what it considered to be adequate remedies to an
employe[e] such as plaintiff, but by implication show a legislative intent to abrogate or supersede any common law remedy for damages”).
As it did in Brown, the court in Holien first concluded that nothing evinced that the legislature, in providing a statutory remedy for the wrongful conduct, intended to
eliminate the common-law remedy for wrongful discharge.
298 Or at 96. Then notably, as it had in Brown, the court
proceeded to address the issue of the adequacy of existing
statutory remedies, concluding that they “fail[ed] to capture
the personal nature of the injury done to a wrongfully discharged employe[e] as an individual and … to appreciate
the relevant dimensions of the problem.”
Id. at 97. Again,
despite placing the primary focus of its analysis on “legislative intent to abrogate,” the court returned to “adequacy of
existing remedies” as a component of the analysis.
Cite as
305 Or App 288 (2020) 305
This court’s attempts to adhere to the foregoing precedents have further entrenched the inconsistency in Oregon’s
wrongful discharge law. Two cases relied on by the parties in
this case are illustrative. First, in Olsen v. Deschutes County,
204 Or App 7,
127 P3d 655, rev den,
341 Or 80 (2006), we
considered whether public employees who were fired for raising concerns about safety violations at a respite care facility may bring a wrongful discharge claim. Citing Holien, we
stated that, to preclude the plaintiffs’ claim, the defendant
“must demonstrate both that the remedy for violation of ORS
659.035 is adequate in comparison to the remedy available
under a common-law tort action and also that the legislature intended the statute to abrogate the common law.” Id. at
14 (emphases added). Thus, in Olsen, we expressly stated—
where the Oregon Supreme Court arguably has not—that
both the requirements of “adequate existing remedies” and
“legislative intent to abrogate the common-law remedy” must
be present. Applying that rule, we concluded that the defendant met the first but not the second requirement; therefore,
the plaintiffs’ wrongful discharge claim was not precluded
as a matter of law. Id. at 14-17.
Then, in Deatherage v. Johnson, 230 Or App 422,
215 P3d 125 (2009), we considered whether an employee who
had been fired in retaliation for reporting workplace safety
violations to the Oregon Occupational Safety and Health
Division may pursue a wrongful discharge claim. Although
the plaintiff argued that Olsen controlled, we rejected that
case’s applicability, stating that it “does not address a claim
under the statute at issue in this case, ORS 654.062.”
Id. at
425. Ultimately, we adhered to Walsh’s singular focus on the
adequacy of statutory remedies and held that, “unless the
Supreme Court repudiates or modifies its holding in Walsh,
a plaintiff alleging retaliatory termination must bring that
claim, if at all, under either a federal or a state statute.”
Id. at 426.
Returning to the present case, plaintiff argues that
Olsen governs and defendants contend that Deatherage controls. For two reasons, we agree with defendant. First, we
observe that wrongful discharge was not intended to be a
tort of general application; rather, it is “an interstitial tort,
306 Vergara v. Patel
designed to fill a gap where a discharge in violation of public policy would otherwise not be adequately remedied.”
Dunwoody v. Handskill Corp., 185 Or App 605, 613,
60 P3d
1135 (2003). The Olsen majority’s conclusion that both adequate statutory remedies and a legislative intent to abrogate
the common-law remedy are required to preclude a claim for
wrongful discharge would seem to enlarge the tort in a way
that contravenes that principle.
Second, as in Deatherage and unlike in Olsen, one of
the statutes at issue in this case is ORS 654.062. The Walsh
court stated:
“We feel that existing remedies are adequate to protect
both the interests of society in maintaining safe working
conditions and the interests of employees who are discharged for complaining about safety and health problems.
We also note that ORS 654.062(5) now provides a similar
remedy under state law although, admittedly, these provisions were not in effect at the time of the conduct in question. Therefore, we find it unnecessary to extend an additional tort remedy to cover this kind of situation.”
278 Or at 352-53 (footnote omitted). Walsh is directly on
point, and we are bound by that decision. Therefore, we conclude that adequate statutory remedies exist under ORS
654.062 to vindicate the wrongful conduct that plaintiff
alleges here, and that factor alone precludes her wrongful
discharge claim.
Finally, we address plaintiff’s argument regarding
the significance of the dual motivations behind her refusal
to work without protective gloves—to protect individual
health and safety and to prevent the spread of communicable diseases. Essentially, she posits that, even if ORS
654.062 functions as an adequate remedy to protect her
personal interest in a safe workplace, it does not function
as an adequate remedy to protect the public interest in disease prevention. To the extent that the different motivations
underlying an employee’s singular protected action matters,
and assuming that ORS 654.062 is inadequate to vindicate
the wrong that defendants caused in terminating plaintiff
for acting to fulfill a societal obligation, plaintiff still has not
established a wrongful discharge claim.
Cite as 305 Or App 288 (2020) 307
Our courts have recognized two bases for a wrongful discharge claim: (1) “when the discharge is for exercising
a job-related right that reflects an important public policy”
and (2) “when the discharge is for fulfilling some important public duty[.]” Babick, 333 Or at 407 (citations omitted).
Plaintiff argues that this is a “public duty” case, because
she was fulfilling an important societal obligation by acting to stop the spread of diseases.6 In reviewing wrongful
discharge claims, courts “must find a public duty, not create
one, using constitutional and statutory provisions and case
law.”
Id. at 407-08 (emphasis in original; citation and internal quotation marks omitted); see also Lamson v. Crater Lake
Motors, Inc.,
346 Or 628, 637,
216 P3d 852 (2009) (stating
same). In Babick, the Oregon Supreme Court considered the
viability of the wrongful discharge claim of private security
guards who were fired for arresting concert-goers engaging
in assaultive behaviors and illicit substance possession. The
court explained that it was “concerned here with a duty to
perform a specific act (the arrest of lawbreakers by private
citizens or private security personnel), and the statutes cited
have nothing to say about that kind of act.” Babick,
333 Or
at 409.
The same lack of specificity prevents plaintiff from
pursuing her wrongful discharge claim based on the “public
duty” theory in this case. Examining the statutes that plaintiff cites as relevant—namely, ORS 431.110, ORS 431.142,
ORS 431.155, and ORS 433.010—we acknowledge that those
provisions evince a general public policy in favor of healthy
communities and preventing communicable diseases.
However, ORS 431.110, ORS 431.155, and ORS 431.142 concern, respectively, the general powers of the Oregon Health
Authority (OHA), the enforcement powers of the OHA, and
the functions of communicable disease control programs.
None of those statutes impose any duty on plaintiff to prevent the spread of communicable diseases. Lastly, although
ORS 433.010(1) provides that “[n]o person shall willfully
cause the spread of any communicable disease within this
state[,]” plaintiff did not allege any such willful action here.
6
Although plaintiff also pleaded this as a “job-related rights” case in her
amended complaint, on appeal, plaintiff appears to rely solely on the “public
duty” theory.
308 Vergara v. Patel
III. CONCLUSION
In sum, as to plaintiff’s statutory claims, we conclude that Patel should reasonably have understood from
the original complaint that plaintiff intended to sue the
business entities Jay Maharaj, Inc., and Alko 100 LLC.
Therefore, the amended complaint merely corrected a misnomer and did not change the parties, and it relates back
to the timely filing of the original complaint under the first
sentence of ORCP 23 C. Furthermore, we conclude that the
existence of adequate statutory remedies precludes plaintiff’s wrongful discharge claim.
Portion of judgment dismissing plaintiff’s statutory
claims reversed and remanded; otherwise affirmed.
