No. 843 September 24, 2025 635
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Edward McABOY,
Plaintiff-Appellant,
v.
INTEL CORPORATION
and Brian Lemme,
Defendants-Respondents.
Multnomah County Circuit Court
21CV45802; A183853
Adrian L. Brown, Judge.
Submitted July 23, 2025.
Edward McAboy filed the briefs pro se.
Anthony Copple, Sarah J. Ryan and Jackson Lewis, P. C.
filed the brief for respondents.
Before Kamins, Presiding Judge, Jacquot, Judge, and
Armstrong, Senior Judge.
JACQUOT, J.
Affirmed.
636 McAboy v. Intel Corp.
JACQUOT, J.
Plaintiff, appearing pro se, appeals a judgment in
favor of defendants, his former employer and supervisor,
on his claims for race discrimination, hostile work environment, retaliation, and aiding and abetting discrimination.
We understand plaintiff to raise six assignments of error.
First, plaintiff argues that the trial court erred by barring
him from testifying regarding his noneconomic damages
due to a discovery violation sanction. Second, he assigns
error to the trial court’s failure to determine that certain
witnesses were not credible. Third, he argues that a witness committed perjury due to inconsistent testimony and
that the court should have taken action. Fourth, plaintiff
“assigns as error the trial court’s avoidance to identify discrimination or discriminatory practices.” Fifth, he alleges
prejudice by the trial court against him in violation of the
Oregon Code of Judicial Conduct (OCJC). Finally, he assigns
as error the trial court’s failure to find a difference in treatment between plaintiff and other employees in a similar
position. We affirm.
Plaintiff was placed on a corrective action plan
and ultimately terminated from his employment by defendants, and he brought this lawsuit, pro se, alleging racial
discrimination. In a bench trial, following plaintiff’s casein-chief, defendants moved for a directed verdict,1 which the
trial court granted as to the hostile work environment and
retaliation claims, but it allowed plaintiff’s discrimination
and aiding and abetting claims to proceed. Following plaintiff’s rebuttal case, defendants again moved for a directed
1
At trial, defendants moved for a directed verdict under ORCP 60 and for involuntary dismissal under ORCP 54. In a bench trial, ORCP 54 is the correct rule.
Oregon Psychiatric Partners v. Henry, 293 Or App 471, 473 n 2,
429 P3d 399 (2018)
(“In a bench trial, a defendant’s motion for directed verdict is better understood as
an ORCP 54 B(2) motion for involuntary dismissal on the ground that upon the facts
and the law the plaintiff has shown no ground for relief.” (Internal quotation marks
omitted.)). However, a “court may grant a motion under ORCP 54 B(2) on either of
two grounds: (1) The plaintiff has failed to present a prima facie case (the directed
verdict standard); or (2) even if the plaintiff has presented a prima facie case, the
court, as trier of fact, is unpersuaded by the plaintiff’s evidence.”
Id. (internal quotation marks and emphases omitted). Although during the trial the court and the
parties referred to a “directed verdict,” we understand the court to be referencing
the first prong of the ORCP 54 B(2) standard, and, with that understanding, we continue to use the directed verdict terminology as the court and parties did at trial.
Nonprecedential Memo Op:
343 Or App 635 (2025) 637
verdict, which the trial court granted and dismissed the
remaining claims. The court determined that the evidence
was legally insufficient to show that race was a substantial
factor in the discipline or termination of plaintiff, meaning
that there was insufficient evidence that, even if plaintiff
experienced less favorable treatment, his race played a role
in the adverse employment actions.
“On review of the trial court’s grant of defendants’
motion for a directed verdict, we view the evidence, and all
reasonable inferences therefrom, in the light most favorable to the nonmoving party (in this case, plaintiff), and
… determine whether any reasonable factfinder could find
in favor of [plaintiff].” Yoshida’s Inc. v. Dunn Carney Allen
Higgins & Tongue, 272 Or App 436, 443,
356 P3d 121 (2015),
rev den,
358 Or 794 (2016). A directed verdict is appropriate
only if the moving party is entitled to judgment as a matter
of law. Hernandez-Nolt v. Washington County,
283 Or App
633, 634,
391 P3d 923, rev den,
361 Or 543 (2017).
In his first assignment of error, plaintiff appears to
challenge two separate determinations by the trial court.
First, he challenges the trial court’s interpretation of an
order for sanctions imposed by the motions court. Second,
he challenges the trial court’s determination that he could
not admit medical records from the time period after his
termination.
Despite any error made by the trial court, we may
reverse its decision only if the error substantially affected
the rights of a party. See ORS 19.415(2) (“No judgment shall
be reversed or modified except for error substantially affecting the rights of a party.”). That means that if the error did
not affect the outcome of the proceedings, we cannot disturb
the outcome.
In this case, even if the trial court erred in either
of those determinations, we could not reverse on that basis.
Both decisions that plaintiff challenges pertain to damages, which is a different consideration than liability. The
court found that defendants were not liable based on a lack
of evidence that race was a substantial factor in plaintiff’s
discipline or termination. Liability had to be established
638 McAboy v. Intel Corp.
before the court could consider what damages plaintiff suffered. The order for sanctions limited plaintiff’s ability to
testify regarding his noneconomic damages. The medical
records plaintiff wished to offer from the time period after
plaintiff’s termination were relevant to the damages he suffered. Because the court found no liability based on a lack
of evidence that race was a substantial factor in his discipline or termination, it did not reach the issue of damages.
Therefore, even if the trial court erred in the decisions identified by plaintiff, that error did not affect the outcome of the
proceedings, and we cannot reverse on that basis.2
In his second assignment of error, plaintiff argues
that “[t]he court ignored [witnesses’] inconsistent statements and unreasonable expectations of [plaintiff].” We
understand this challenge to be to the trial court’s witness
credibility determinations. However, the trial court did not
base its decision on witness credibility determinations. The
trial court granted a motion for directed verdict. Under that
standard, the trial court did not “weigh conflicting evidence
or evaluate credibility.”3 Fang v. Li, 203 Or App 481, 485,
125 P3d 832 (2005).
Because this case was decided on a motion for
directed verdict, the court viewed all admitted evidence,
and all reasonable inferences that could be drawn from that
evidence, in the light most favorable to plaintiff. In other
words, the court considered all of the evidence, identified
which pieces of evidence could possibly support plaintiff’s
position, and then looked at that supportive evidence in the
most beneficial light to plaintiff. Viewing the evidence that
way, the court determined that there was not enough evidence to show that plaintiff’s race was a substantial factor
in any adverse treatment.
There is no reason to believe the trial court misunderstood or failed to follow that standard. The trial court
2
The statutory authorities that plaintiff provides to support his position are
inapplicable: ORS 183.470 pertains to agency decisions, and ORS 137.172(1) pertains to criminal proceedings.
3
Given that the trial court stated it was applying the directed verdict standard, we understand the court to have ruled based on the first ORCP 54 B(2)
ground, which uses that same standard. Thus, the court would not have made
factual findings or evaluated credibility when it applied that standard.
Nonprecedential Memo Op: 343 Or App 635 (2025) 639
determined that—regardless of the believability of witnesses that plaintiff argues are not credible—there was not
enough affirmative evidence to show that race was a substantial factor in the adverse employment actions. The court
explained that it researched whether credibility issues were
an “appropriate consideration of the court in a directed verdict motion” and determined that it
“is not to weigh the conflicting evidence or evaluate credibility when looking at a directed verdict motion.
“Indeed, the whole point of the directed verdict motion
is just to consider whether or not there’s any evidence,
whether or not it has credibility issues or conflicts with
other evidence, the question is whether or not there’s any
evidence.
“And the directed verdict standard under Oregon law
provides that it’s appropriate when there is no evidence
from which a jury could find, or a fact finder here, the judge,
could find facts necessary to establish each element of the
claim.
“And that’s where the Court lands ….”
Thus, we cannot reverse on plaintiff’s second assignment of
error.
In his third assignment of error, plaintiff points to
a variety of statements made by a witness that he identifies
as inconsistent and argues that the witness committed perjury or false swearing under ORS 162.065(1). Perjury is a
criminal matter in which charges must be brought against a
person by the state. This is a civil case that does not involve
a prosecution for perjury or false swearing, and thus ORS
162.065(1) and plaintiff’s arguments regarding it are inapplicable in this circumstance.
In his fourth assignment of error, we understand
plaintiff to generally challenge the trial court’s directed
verdict ruling. As noted above, “we view the evidence,
and all reasonable inferences therefrom, in the light most
favorable to [plaintiff], and … determine whether any
reasonable factfinder could find in favor of the nonmoving
party.” Yoshida’s Inc., 272 Or App at 443. A directed verdict is appropriate only if the moving party is entitled to
640 McAboy v. Intel Corp.
judgment as a matter of law. Hernandez-Nolt,
283 Or App at
634. In resolving a discrimination claim, we “ask whether
the trier of fact reasonably could infer that the defendant
discriminated against the plaintiff in the terms or conditions of work because of the plaintiff’s … race.” Durham v.
City of Portland,
181 Or App 409, 421-22,
45 P3d 998 (2002).
“If that inference may reasonably be drawn, then the claim
should be submitted to the trier of fact.”
Id. The plaintiff
must prove that race was a “substantial factor” in the motivation for the adverse employment action, meaning that it
was “a factor that made a difference” in the decision. Estes v.
Lewis and Clark College,
152 Or App 372, 381,
954 P2d 792,
rev den,
327 Or 583 (1998).
Plaintiff provides an overview of the facts he presented to the trial court to support his position. He points
to examples of his positive work performance to argue that
another employee should not have been placed in a new role
over him, and his supervisor “heavily skewed the rating of
my performance based on the few jobs I could not complete.”
Plaintiff alleges that his supervisor called him a “dumb
ass,” stated that “people from Alabama are not the smartest” knowing that plaintiff was the only employee from
Alabama, told plaintiff to “lighten” his voice, called plaintiff
a “second-rate engineer,” and stated that he “listen[s] to rap
music, too.” Plaintiff further alleges a variety of incidents in
which employees of other races were treated differently and
more favorably than he was. Plaintiff also points to the use of
the term “Master/Slave” on the engineering control systems,
which management did not change upon his request, and
graffiti on a men’s bathroom stall reading “Dindu Nuffin.”
The trial court heard the evidence and acknowledged that
plaintiff experienced difficulty and stress but explained
that there was not sufficient “evidence under the law of
race being a substantial factor” in the adverse employment
actions against plaintiff, as is required to establish a prima
facie case for discrimination.
Granting plaintiff the benefit of the inferences he
argues for, we conclude that no evidence was presented at
trial to give rise to a reasonable inference that race was
a substantial factor in the adverse employment actions
Nonprecedential Memo Op: 343 Or App 635 (2025) 641
against plaintiff. There is insufficient evidence that plaintiff’s race was a substantial factor in any alleged unfair or
disparate treatment, as is required to establish a race discrimination claim. There is also no evidence that the use of
the engineering term “Master/Slave” on the control systems
and the graffiti in the bathroom, nor plaintiff’s complaints
about them, played a role in plaintiff’s discipline or termination. Even if we could infer that some members of defendant’s staff were racially insensitive or offensive, including
plaintiff’s manager, there is insufficient evidence to draw
an inference that plaintiff’s manager or others in charge of
the employment decisions used plaintiff’s race as a substantial factor in disciplining or terminating him. Therefore, the
trial court did not err in granting the directed verdict.
In his fifth assignment of error, plaintiff points to
Oregon Code of Judicial Conduct (OCJC) Rule 3.3 to argue
that the trial court was biased against him. The Commission
on Judicial Fitness and Disability, rather than the Court of
Appeals, has the authority to receive and investigate complaints regarding compliance with the OCJC. ORS 1.420.
Plaintiff also argues that the trial court erred by
allowing a witness to testify remotely under ORS 45.400
without defendant having moved for remote testimony and
plaintiff having not received written notice at least 30 days
before the hearing at which the testimony would be offered.
However, the witness testified via live video, and plaintiff
was able to cross-examine the witness. The witness had been
available for earlier trial dates but because the trial was
extended, she was not able to attend in person on the later
dates. See ORS 45.400(3)(a) (“[T]he court may allow remote
location testimony under this section upon a showing of good
cause by the moving party, unless the court determines that
the use of remote location testimony would result in prejudice to the nonmoving party and that prejudice outweighs
the good cause for allowing the remote location testimony.”).
It is unclear what, if any, prejudice plaintiff experienced due
to the witness’s remote testimony. Plaintiff’s argument does
not provide grounds for reversal.
Finally, plaintiff argues that the trial court improperly weighed evidence regarding his treatment as compared
642 McAboy v. Intel Corp.
to two other employees. As explained above, there is no reason to believe that the trial court based its directed verdict
decision on weighing of evidence. See Fang, 203 Or App at
485 (in evaluating a motion for a directed verdict, we do
not “weigh conflicting evidence or evaluate credibility”).
Accordingly, we cannot reverse on this assignment of error.
Affirmed.
