721
Argued and submitted February 23, 2021; judgment for defendants Dolich and
Josephson on plaintiffs’ twelfth and thirteenth claims and for defendant Dolich
on plaintiffs’ fifth claim reversed and remanded, otherwise affirmed
September 14, 2022
Nancy ALLISON;
Holly Rice, fka Holly Burney;
and Teal Garrels,
Plaintiffs-Appellants,
v.
Scott DOLICH;
Anna Josephson; Park Kitchen, LLC;
and The Bent Brick, LLC,
Defendants-Respondents.
Multnomah County Circuit Court
14CV07294; A170480
518 P3d 591
Plaintiffs Allison and Rice appeal from a judgment largely in their favor on
statutory and common-law claims brought on their own behalf and on behalf
of a certified class of plaintiffs against restaurant defendants Park Kitchen,
LLC and The Bent Brick, LLC, and the individual defendants—the restaurants’
owner Scott Dolich and general manager Anna Josephson. Plaintiffs assign error
to the trial court’s dismissal of a claim against Dolich for the conversion of tip
money and a claim against Dolich and Josephson for retaliation in violation of
ORS 659A.030(1)(f). Plaintiffs also assign error to the granting of summary
judgment to Dolich and Josephson on their claim alleging a violation of ORS
659A.030(1)(g) based on the individual defendants having “abetted or incited” the
LLCs’ violations, and on their claim that defendants violated ORS 659A.230(1)
by terminating their employment in retaliation for bringing a civil proceeding.
Held: The Court of Appeals concluded that the trial court did not err in granting
defendants’ motion for summary judgment on the retaliation claim alleged under
ORS 659.230(1), because the evidence in the record on summary judgment would
not support a finding that plaintiff Rice brought a civil proceeding within the
meaning of ORS 659A.230(1) when she made inquiry with the Oregon Bureau
of Labor and Industries concerning the legality of tip pooling. But the Court of
Appeals reversed the trial court on other rulings: The court concluded that the
trial court erred in dismissing plaintiff’s claim against Dolich and Josephson
under ORS 659A.030(l)(g) for aiding, abetting, or inciting violations of ORS chapter 659(A), explaining that the plain text of ORS 659A.030(l)(g) applies to “any
person” and that any person making decisions on behalf of a business-entity
employer has the potential for aid or abet liability. The court also concluded that
the trial court erred in dismissing the individual defendants from plaintiffs’
claim alleging retaliation in violation of ORS 659A.030(1)(f) based on the conclusion that the claim had not been alleged against the individual defendants; a liberal reading of the complaint requires the conclusion that the claim was alleged
as against the individual defendants. The court further concluded that the trial
court erred in granting Dolich’s motion for directed verdict and then dismissing
the claim for conversion of tip moneys, reasoning that, contrary to the assumed
722 Allison v. Dolich
basis for the trial court’s conclusion, it was not necessary that plaintiffs establish
that Dolich took physical possession of tip moneys.
Judgment for defendants Dolich and Josephson on plaintiffs’ twelfth and
thirteenth claims and for defendant Dolich on plaintiffs’ fifth claim reversed and
remanded; otherwise affirmed.
Kathleen M. Dailey, Judge.
Jon M. Egan argued the cause and filed the brief for
appellants.
No appearance for respondents.
Richard B. Myers and Bennett Hartman, LLP, filed the
brief amicus curiae for Oregon Trial Lawyers Association.
Before Mooney, Presiding Judge, and Egan, Judge, and
Pagán, Judge.*
EGAN, J.
Judgment for defendants Dolich and Josephson on plaintiffs’ twelfth and thirteenth claims and for defendant Dolich
on plaintiffs’ fifth claim reversed and remanded; otherwise
affirmed.
______________
* Egan, J., vice DeVore, S. J.; Pagán, J., vice DeHoog, J. pro tempore.
Cite as 321 Or App 721 (2022) 723
EGAN, J.
Plaintiffs Nancy Allison and Holly Rice1 brought
this tort action on their own behalf and on behalf of a certified class of employees of two restaurants, defendants
Park Kitchen, LLC and The Bent Brick, LLC, alleging violations of ORS chapter 659A based on, among other acts,
defendants’ imposition of unlawful tip pooling. The restaurants are owned by defendant Scott Dolich. Defendant Anna
Josephson was general manager of both restaurants.
The relevant facts are undisputed. Plaintiffs Allison
and Rice worked as servers at Dolich’s restaurants. Dolich
developed a “tip pooling” policy that required that customers’ tips be pooled and shared among employees, including
Josephson and other employees not directly involved in the
service of restaurant customers. Dolich fired Allison after
she repeatedly expressed to her coworkers and to Dolich her
disagreement with the tip-pooling policy and her view that
it was illegal, and after Dolich learned that Rice had sought
information about the legality of the tip-pooling policy from
an attorney and from the Wage and Hour Division of the
Oregon Bureau of Labor and Industries (BOLI). Josephson
fired Rice when she refused to sign a tip-pooling agreement.
Plaintiffs brought a myriad of common-law and
statutory wage, tip, and employment-related claims against
the LLCs and the individual defendants on behalf of a class
of employees, and also brought claims against the individual defendants on their own behalf. Most of the claims
against the LLCs went to the jury, which returned verdicts
for plaintiffs. The court ruled for the individual defendants
on several of the claims brought by the individual plaintiffs,
either through dismissal, summary judgment, or directed
verdict, and plaintiffs’ assignments relate to those rulings.
As explained below, we agree with plaintiffs that the trial
court erred with respect to three of its rulings on claims
against the individual defendants.
We begin with plaintiffs’ contention, in their
first assignment of error, that the trial court erred in
1
Plaintiff Holly Rice was formerly known as Holly Burney. In this opinion,
we use her current name.
724 Allison v. Dolich
granting summary judgment to the individual defendants
on plaintiffs’ twelfth claim, which alleged a violation of ORS
659A.030(1)(g), based on the individual defendants having
“abetted or incited” the LLCs’ violations. In reviewing the
trial court’s ruling granting defendants’ motion for summary judgment, we view the record in the light most favorable to plaintiffs to determine whether defendants met their
burden of demonstrating that no genuine issues of material
fact exist and that they were entitled to judgment as a matter of law. Jones v. General Motors Corp., 325 Or 404, 420,
939 P2d 608 (1997); ORCP 47 C.
The issue presented is a legal one. Under ORS
659A.030(l)(g), it is unlawful to “aid, abet, incite, compel, or
coerce” employment practices that are unlawful under ORS
chapter 659A. The dispute on appeal turns on the narrow
legal question whether, in a claim for violations under ORS
chapter 659A against an LLC employer, the LLC’s member
and owner or chief executive may be liable for aiding or abetting the LLC’s violations.
In granting the individual defendants’ motion for
summary judgment, the trial court was persuaded by decisions of the Oregon federal district court that have held that
a person with executive authority who acts on behalf of a
business-entity employer through decision-making resulting in liability under ORS chapter 659A cannot be said to
have aided or abetted the person’s own decision-making in
directing the business. The trial court concluded that the
individual defendants’ decisions resulting in the LLCs’ violations were made on behalf of the LLCs and that, because
of that, the individual defendants could not be personally
liable for aiding or abetting the LLCs.
On appeal, plaintiffs contend that the text of ORS
659A.030(l)(g) requires the conclusion that a person making decisions on behalf of a business-entity employer can be
found personally liable for having aided, abetted, or incited
the business entity’s violation of ORS chapter 659A. ORS
659A.030(l)(g) provides:
“It is an unlawful employment practice:
“…
Cite as 321 Or App 721 (2022) 725
“(g) For any person, whether an employer or an
employee, to aid, abet, incite, compel or coerce the doing of
any of the acts forbidden under this chapter or to attempt
to do so.”
The precise question here is whether the legislature intended
to impose aider or abettor liability on a person who undertakes to make decisions on behalf of a business-entity
employer, resulting in the entity’s liability under ORS chapter 659A.2 It is a question of statutory construction that
we consider pursuant to the template described in PGE v.
Bureau of Labor and Industries, 317 Or 606, 610-12,
859 P2d
1143 (1993), and State v. Gaines,
346 Or 160, 171-73,
206
P3d 1042 (2009). As explained below, we conclude that the
trial court erred in determining that there can be no such
liability here.
As plaintiffs note, the plain text of ORS 659A.030(l)(g)
applies to “any person.” In plaintiffs’ view, that means that
any person making decisions on behalf of a business-entity
employer has the potential for aid or abet liability. We agree
with plaintiffs that “any person” includes a business-entity
employer’s principal decision-maker directing the entity.3
See Hernandez v. Catholic Health Initiatives, 311 Or App 70,
74,
490 P3d 166 (2021) (noting the “broad definition” of “any
person” and holding that “[a]nyone qualifying as a ‘person’
under ORS 659A.001(9) may be an aider or abettor of an
2
We note, as an aside, that although ORS 63.165(1) provides that a member
or manager of an LLC is not personally liable for the LLC’s debts, obligations, and
liabilities solely by reason of being or acting as a member or manager, an LLC
member is not insulated from liability for the person’s own acts. The Supreme
Court said in Cortez v. Nacco Materials Handling Group, 356 Or 254, 268-69,
337
P3d 111 (2014):
“Unlike limited partners, members or managers who participate in or
control the business of an LLC will not, as a result of those actions, be vicariously liable for the LLC’s debts, obligations, or liabilities. However, a member
or manager remains responsible for his or her acts or omissions to the extent
those acts or omissions would be actionable against the member or manager
if that person were acting in an individual capacity.”
Thus, ORS 63.165(1) would not shelter Dolich from personal liability under ORS
659A.030(l)(g) for acts that he undertook on his own behalf.
3
We recently addressed ORS 659A.030(l)(g) in Frehoo, Inc. v. BOLI, 319
Or App 548,
510 P3d 888 (2022), but did not consider the precise question here,
whether a person directing the business of an employer through decisions that
result in liability of the employer for violations under ORS chapter 659A can be
held liable for aiding, abetting, or inciting the violations.
726 Allison v. Dolich
unlawful employment practice in a way that subjects them
to liability under ORS 659A.030(1)(g)”).
The remaining question is whether the individual
defendants here can be said to have aided or abetted the
unlawful acts of the LLCs. One who aids or abets is one who
assists another to commit an act. See State v. Rosser, 162
Or 293, 344,
86 P2d 441 (1939) (an “aider and abettor” is
one who advises, counsels, procures, or encourages another
to commit a crime). It is undisputed that here, Dolich and
Josephson directed the LLCs to act in ways that resulted
in violations of ORS chapter 659A by developing and implementing the tip-pooling policy and carrying out plaintiffs’ terminations when they objected. We understand the
trial court’s reasoning that a person who is acting for an
LLC, rather than on the person’s own behalf, cannot logically be said to have also aided or abetted the LLC. But,
as plaintiffs argue, the term “any person” as used in ORS
659A.030(l)(g) is broad enough to cover those persons who
act on behalf of the employer—indeed, the statute expressly
references “an employer or an employee.” We think that
the legislature’s intention was that the persons directing the business-entity employer’s unlawful conduct can
be held individually liable under ORS 659A.030(l)(g). The
trial court’s reasoning is inconsistent with that construction. We conclude that, whether the individual defendants
were acting in their personal capacities or on behalf of the
LLCs, they were “persons” who assisted the LLCs by making the decisions that enabled the violations. The trial court
therefore erred in determining that the individual defendants could not be found liable for aiding or abetting the
LLCs under ORS 659A.030(1)(g) and in granting summary
judgment to the individual defendants on plaintiffs’ twelfth
claim.
We turn to plaintiffs’ second assignment of error.
ORS 659A.230(1) provides, in part:
“It is an unlawful employment practice for an employer
to discharge, demote, suspend or in any manner discriminate or retaliate against an employee … for the reason
that the employee has … in good faith brought a civil proceeding against an employer[.]”
Cite as 321 Or App 721 (2022) 727
Plaintiffs alleged that when Rice suspected that defendants’
tip-pooling policy was in violation of state law, she “consulted with [the Bureau of Labor and Industries (BOLI)]
and a private attorney.” In her affidavit, Rice stated that
she told Dolich that she had talked to the Wage and Hour
Division and that tip pooling was not legal, and that defendants then terminated her employment when she refused
to sign a tip-pooling agreement. In the fifteenth claim of
their second amended complaint, plaintiffs alleged that
defendants violated ORS 659A.230(1) by terminating their
employment in retaliation for “initiating a civil proceeding
and/or reporting criminal activity.” In granting the individual defendants’ motion for summary judgment on that
claim, the trial court reasoned that, under our case law,
Huber v. Dept. of Education,
235 Or App 230, 238,
230 P3d
937 (2010), Rice’s oral communication with BOLI would not
constitute bringing a “civil proceeding,” as required by ORS
659A.230(1).
In their second assignment, the individual plaintiffs
assign error to that ruling. They note that BOLI’s administrative rule, OAR 839-010-0140, provides:
“Under ORS 659A.230 and these rules, an employee is
protected in activities related to civil proceedings. A civil
proceeding, as used in ORS 659A.230 and these rules,
includes a proceeding before an administrative agency or a
court. The employee is protected under the statute if:
“(1) The employee has brought, in good faith, a civil
proceeding against an employer.
“(a) Bringing a civil proceeding, as used in ORS
659A.230 and the rules, includes filing complaints to or
cooperation with administrative agencies as well as courts.
“(b) An employee is considered to have initiated a civil
proceeding when the employee has contacted an administrative agency the employee believes in good faith to have
jurisdiction and the ability to sanction the employer.”
Plaintiffs contend that, under BOLI’s administrative
rule, contacting BOLI with questions concerning defendants’
tip policy is the equivalent of bringing a civil proceeding,
and that retaliation for that conduct therefore constitutes a
violation of ORS 659A.230(1).
728 Allison v. Dolich
The trial court was correct that, in Huber, we
held without extensive discussion that an employee’s complaint to an administrative agency was an “administrative
matter”—not a criminal or civil action—and therefore not
protected by ORS 659A.230. In Huber, we did not refer to
OAR 839-010-0140. Plaintiffs contend that Huber was
wrongly decided and should be overruled. We are inclined
to agree with plaintiffs that ORS 659A.230 does not limit
a “civil proceeding” to a judicial civil proceeding, and that
a complaint filed with an administrative agency for the
purpose of seeking a remedy for the employer’s unlawful
conduct initiates a civil proceeding. See Lamson v. Crater
Lake Motors, Inc., 346 Or 628, 640,
216 P3d 852 (2009) (ORS
659A.230 protects employees “when they report unlawful
actions of others by means of civil or criminal channels recognized by law[.]”).
But we need not overrule Huber in this case.
Even assuming that a “civil proceeding” as used in ORS
659A.230(1) includes an administrative proceeding, the statute still requires that a civil proceeding be “brought.” ORS
659A.230(1) (providing that it is a violation to retaliate for
the “reason that the employee has … in good faith brought
a civil proceeding against an employer”). See Mantia v.
Hanson, 190 Or App 36, 41 n 3,
77 P3d 1143 (2003), rev den,
336 Or 615 (2004) (holding that a plaintiff’s complaint to
the employer about “allegedly unsafe work conditions and
threat[ ] to complain to Oregon occupational safety authorities about those conditions” was not protected by that statute). There is no evidence in the record on summary judgment that Rice contacted BOLI for the purpose of bringing a
civil proceeding.
We recognize that our conclusion might be seen as
at odds with OAR 839-010-0140(1)(b). But we think that the
rule can be applied in a way that does not conflict with our
interpretation of the statute. The rule states that “bringing a civil proceeding, as used in ORS 659A.230,” “includes
filing complaints to or cooperation with administrative
agencies as well as courts.” OAR 839-010-0140(1)(a). The
rule appears to contemplate the filing or pendency of a civil
proceeding before a court or an agency. The statement in
OAR 839-010-0140(1)(b) that “[a]n employee is considered
Cite as 321 Or App 721 (2022) 729
to have initiated a civil proceeding when the employee has
contacted an administrative agency the employee believes
in good faith to have jurisdiction and the ability to sanction
the employer” can be understood to explain that the protection from retaliation afforded by ORS 659A.230 for bringing a civil proceeding extends to persons who mistakenly
contact an agency for the purpose of bringing a proceeding,
believing in good faith that the agency has jurisdiction and
the ability to sanction the employer. In view of our conclusion that ORS 659A.230 requires that the person bring a
proceeding, the “contact” of the agency described in OAR
839-010-0140(1)(b) must have been for the purpose of initiating a civil proceeding. We conclude that the evidence on
summary judgment does not support a finding that Rice’s
BOLI inquiry was a civil proceeding brought against defendants within the meaning of ORS 659A.230(1). We therefore
affirm the trial court’s ruling granting defendants’ motion
for summary judgment on plaintiffs’ fifteenth claim.
In their third assignment, plaintiffs contend that
the trial court erred in dismissing the individual defendants
from plaintiffs’ thirteenth claim, which alleged retaliation
in violation of ORS 659A.030(1)(f). The trial court based its
ruling on the conclusion that the thirteenth claim was not
alleged against the individual defendants.
We agree with plaintiffs that the trial court erred.
The second amended complaint included sixteen claims.
Although claim headings are not generally considered to be
substantive, Granewich v. Harding, 329 Or 47, 53 n 1,
985
P2d 788 (1999), here they assist in determining whether the
thirteenth claim was intended to be alleged as against the
individual defendants. The heading for each claim of the
complaint states whether the claim is alleged by the class
or by the individual plaintiffs. The heading for each claim
also states whether it is alleged only against the LLCs or
only against the individual defendants. For example, the
seventh claim’s heading states: “Class Claim/Tortious
Breach of Duty of Good Faith and Fair Dealing (Tips)/LLC
Defendants.” In the context of the complaint as a whole, it is
clear that the seventh claim is alleged by the class as against
the LLC defendants. The fourteenth claim’s heading states:
“Individual Claim by Allison and [Rice]/Retaliation ORS
730 Allison v. Dolich
659A.199/Park Kitchen.” In the context of the complaint as
a whole, it is clear that the fourteenth claim is alleged by
the individual plaintiffs as against Park Kitchen only. The
twelfth claim’s heading states: “Individual Claim by Allison
and [Rice]/Abetting or Inciting/Individual Defendants.” In
the context of the complaint as a whole, it is clear that
the twelfth claim is alleged by the individual plaintiffs as
against the individual defendants. The headings of some
claims do not specify whether they are against an LLC or
individual defendants. For example, the ninth claim has the
heading “Class Claim/Unjust Enrichment.” The tenth claim
has the heading “Class Claim/Money Had and Received.”
There is no dispute that those claims are alleged as against
all defendants, including the individual defendants. The
heading of the thirteenth claim is similar: “Individual
Claim by Allison and [Rice]/Retaliation ORS 659A.030(1)(f).”
More significantly, the allegations of the thirteenth claim
are directed against “defendants,” not against specifically
identified defendants. We agree with plaintiffs that, as liberally construed, ORCP 12 A (“All pleadings shall be liberally construed with a view of substantial justice between
the parties.”), the thirteenth claim alleges a claim against
all defendants. We therefore conclude that the trial court
erred in dismissing that claim as against the individual
defendants.4
Finally, we address plaintiffs’ contention in their
fifth assignment of error that the trial court erred in granting a directed verdict to Dolich on their conversion claim.
Plaintiffs’ fifth claim, with the heading “Class Claim/
Conversion (Tips)”5 alleged:
“By misappropriating the tip pool funds entrusted to
them, defendants exercised unlawful dominion and control over the property, which completely interfered with
the employees’ right to control it, so that defendants may
justly be required to repay the full value of the property. This breach of bailment contract and of trust and of
4
In view of our conclusion, we need not address plaintiffs’ fourth assignment, in which they allege that the trial court erred in denying their motion to
amend the complaint.
5
We note that there is no dispute that the conversion claim was alleged
against all defendants, including the individual defendants.
Cite as 321 Or App 721 (2022) 731
fiduciary responsibilities qualifies as, and is enforceable as,
conversion.”
The trial court granted Dolich’s motion for a directed verdict on the claim. The court did not state its reasoning, but
we can assume that the court agreed with defendants’ contention that Dolich could not have committed conversion,
because he never had physical possession of the tip pool
funds.
A directed verdict is appropriate only if the court
can affirmatively say that there is no evidence from which
a jury could find facts necessary to establish each element
of the claim. Ballard v. City of Albany, 221 Or App 630,
639,
191 P3d 679 (2008). We review the trial court’s ruling on a motion for directed verdict for legal error. Batzer
Construction, Inc. v. Boyer,
204 Or App 309, 317,
129 P3d
773, rev den,
341 Or 366 (2006).
“Conversion” is the “ ‘intentional exercise of dominion or control over a chattel which so seriously interferes
with the right of another to control it that the actor may
justly be required to pay the other the full value of the chattel.’ ” Mustola v. Toddy, 253 Or 658, 663,
456 P2d 1004 (1969)
(quoting Restatement (Second) of Torts § 222A(1) (1965)).6
Under Oregon law, money can be the requisite chattel (i.e.,
can be converted) “when the money was wrongfully received
6
In Mustola, the court adopted the Restatement’s definition of the elements
of the tort of “conversion”:
“ ‘(1) Conversion is an intentional exercise of dominion or control over a
chattel which so seriously interferes with the right of another to control it
that the actor may justly be required to pay the other the full value of the
chattel.
“ ‘(2) In determining the seriousness of the interference and the justice of
requiring the actor to pay the full value, the following factors are important:
“ ‘(a) the extent and duration of the actor’s exercise of dominion or control;
“ ‘(b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;
“ ‘(c) the actor’s good faith;
“ ‘(d) the extent and duration of the resulting interference with the other’s right of control;
“ ‘(e) the harm done to the chattel;
“ ‘(f) the inconvenience and expense caused to the other.’ ”
253 Or 663-64 (quoting Restatement (Second) of Torts § 222A (1965)).
732 Allison v. Dolich
by the party charged with conversion, or an agent is obligated
to return specific money to the party claiming it.” Waggoner
v. Haralampus,
277 Or 601, 604,
561 P2d 586 (1977); see also
Duty v. First State Bank of Oregon,
71 Or App 611, 619,
693
P2d 1308, rev den,
298 Or 822 (1985) (denying defendant’s
motion for directed verdict on conversion claim where “the
money was wrongfully received by [the defendant], which
had no claim to the funds that Bank was supposed to hold
in trust”).
The trial court did not explain its reason for granting defendants’ motion on the conversion claim as to Dolich
and allowing the claims against the LLCs and Josephson
to proceed, but it appears likely, as we have noted, that the
court based its ruling on the absence of evidence that Dolich
took physical possession of tip money. But Dolich’s physical
possession of tip money was not a prerequisite for liability
for conversion, if Dolich exercised dominion or control over
the tips so as to interfere with plaintiffs’ right of control.
An exercise of dominion or control does not require retention of the property. Rather, a person exercises dominion
or control when the interference deprived the other party
of the right to their property. See Fogh v. McRill, 153 Or
App 159, 167,
956 P2d 236, rev den,
327 Or 431 (1998); see
also Restatement (Second) of Torts § 222A, comment a (1965)
(“Since any interference with the chattel is to some extent
an exercise of ‘dominion,’ the difference between [a mere
interference and possession] becomes almost entirely a matter of degree.”). Here, the evidence permitted a jury finding
that Dolich exercised control so as to deprive plaintiffs of
tip money to which they were lawfully entitled. Accordingly,
we conclude that the trial court erred in granting Dolich’s
motion for directed verdict.
Judgment for defendants Dolich and Josephson on
plaintiffs’ twelfth and thirteenth claims and for defendant
Dolich on plaintiffs’ fifth claim reversed and remanded;
otherwise affirmed.
