common-law wrongful discharge claim in Oregon

2022First, our opinion in Huber itself recognized “that, for purposes of a common-law wrongful discharge claim, an important pub- lic duty could theoretically arise ‘in the absence of a specific legal obligation to perform the act or acts that trigger the discharge,’ ” even if it is also true that “the sources of law that express the asserted ‘public policy’ must in some sense speak directly to those acts.” 235 Or App at 243 (quoting Lamson v. Crater Lake Motors, Inc., 346 Or 628, 637-38 , 216 P3d 852 (2009)).

2022First, our opinion in Huber itself recognized “that, for purposes of a common-law wrongful discharge claim, an important pub- lic duty could theoretically arise ‘in the absence of a specific legal obligation to perform the act or acts that trigger the discharge,’ ” even if it is also true that “the sources of law that express the asserted ‘public policy’ must in some sense speak directly to those acts.” 235 Or App at 243 (quoting Lamson v. Crater Lake Motors, Inc., 346 Or 628, 637-38 , 216 P3d 852 (2009)).

2015Examples of such circumstances include: (1) when the discharge is for exercising a job-related right that reflects an important public policy, see, e.g., Brown v. Transcon Lines, 284 Or 597 , 588 P2d 1087 (1978) (employee unlawfully discharged for filing workers’ compensation claim); or (2) when the discharge is for fulfilling some important public duty, see, e.g., Delaney v. Taco Time Int’l, 297 Or 10 , 681 P2d 114 (1984) (employee discharged for refusing to defame another employee); Nees v. Hocks, 272 Or 210 , 536 P2d 512 (1975) (employee discharged for serving on jury).” If a party brings a

2015Examples of such circumstances include: (1) when the discharge is for exercising a job-related right that reflects an important public policy, see, e.g., Brown v. Transcon Lines, 284 Or 597 , 588 P2d 1087 (1978) (employee unlawfully discharged for filing workers’ compensation claim); or (2) when the discharge is for fulfilling some important public duty, see, e.g., Delaney v. Taco Time Int’l, 297 Or 10 , 681 P2d 114 (1984) (employee discharged for refusing to defame another employee); Nees v. Hocks, 272 Or 210 , 536 P2d 512 (1975) (employee discharged for serving on jury).” If a party brings a

2022Cite as 318 Or App 87 (2022) 101 law of this or other jurisdictions.’ [Babick, 333 Or] at 409 * * * When identifying an important public duty, ‘we review statutes and other authorities for evidence of a substantial public policy that would * * * be “thwarted” if an employer were allowed to discharge its employee without liability.’ Banaitis v. Mitsubishi Bank, Ltd., 129 Or App 371, 380 , 879 P2d 1288 (1994), rev dismissed, 321 Or 511 (1995) (quoting Nees [v. Hocks], 272 Or [210, ]219[, 536 P2d 512 (1975)]).” McManus v. Auchincloss, 271 Or App 765 , 771–72, 353 P3d 17 , rev den, 358 Or 145 (201

2022Cite as 318 Or App 87 (2022) 101 law of this or other jurisdictions.’ [Babick, 333 Or] at 409 * * * When identifying an important public duty, ‘we review statutes and other authorities for evidence of a substantial public policy that would * * * be “thwarted” if an employer were allowed to discharge its employee without liability.’ Banaitis v. Mitsubishi Bank, Ltd., 129 Or App 371, 380 , 879 P2d 1288 (1994), rev dismissed, 321 Or 511 (1995) (quoting Nees [v. Hocks], 272 Or [210, ]219[, 536 P2d 512 (1975)]).” McManus v. Auchincloss, 271 Or App 765 , 771–72, 353 P3d 17 , rev den, 358 Or 145 (201

2022First, our opinion in Huber itself recognized “that, for purposes of a common-law wrongful discharge claim, an important pub- lic duty could theoretically arise ‘in the absence of a specific legal obligation to perform the act or acts that trigger the discharge,’ ” even if it is also true that “the sources of law that express the asserted ‘public policy’ must in some sense speak directly to those acts.” 235 Or App at 243 (quoting Lamson v. Crater Lake Motors, Inc., 346 Or 628, 637-38 , 216 P3d 852 (2009)).

2012Further, we indicated that in Lamson — the case on which defendant’s motion for judgment on the pleadings had been predicated — the Supreme Court had “explained that, for purposes of a common-law wrongful discharge claim, an important public duty could theoretically arise ‘in the absence of a specific legal obligation to perform the act or acts that trigger the discharge, [but] the sources of law that express the asserted “public policy” must in some sense speak directly to those acts.’” Huber, 235 Or App at 243 (quoting Lamson, 346 Or at 637-38 ) (brackets in Huber ; emphasis in Lamson).

2022Cite as 318 Or App 87 (2022) 101 law of this or other jurisdictions.’ [Babick, 333 Or] at 409 * * * When identifying an important public duty, ‘we review statutes and other authorities for evidence of a substantial public policy that would * * * be “thwarted” if an employer were allowed to discharge its employee without liability.’ Banaitis v. Mitsubishi Bank, Ltd., 129 Or App 371, 380 , 879 P2d 1288 (1994), rev dismissed, 321 Or 511 (1995) (quoting Nees [v. Hocks], 272 Or [210, ]219[, 536 P2d 512 (1975)]).” McManus v. Auchincloss, 271 Or App 765 , 771–72, 353 P3d 17 , rev den, 358 Or 145 (201

2015When identifying an important public duty, “we review statutes and other authorities for evidence of a substantial public policy that would *** be ‘thwarted’ if an employer were allowed to discharge its employee without liability.” Banaitis v. Mitsubishi Bank, Ltd., 129 Or App 371, 380 , 879 P2d 1288 (1994), rev dismissed, 321 Or 511 (1995) (quoting Nees, 272 Or at 219 ).

2006Two years after Nees, the court concluded in Walsh v. Consolidated Freightways, 278 Or. 347 , 563 P.2d 1205 (1977), that an employee who was terminated for reporting safety violations could not bring a common-law wrongful discharge claim because the employee had an adequate statutory remedy ( i.e., via a complaint to the United States Department of Labor) to vindicate the important societal interest at stake.

2006Two years after Nees, the court concluded in Walsh v. Consolidated Freightways, 278 Or. 347 , 563 P.2d 1205 (1977), that an employee who was terminated for reporting safety violations could not bring a common-law wrongful discharge claim because the employee had an adequate statutory remedy ( i.e., via a complaint to the United States Department of Labor) to vindicate the important societal interest at stake.

2015Examples of such circumstances include: (1) when the discharge is for exercising a job-related right that reflects an important public policy, see, e.g., Brown v. Transcon Lines, 284 Or 597 , 588 P2d 1087 (1978) (employee unlawfully discharged for filing workers’ compensation claim); or (2) when the discharge is for fulfilling some important public duty, see, e.g., Delaney v. Taco Time Int’l, 297 Or 10 , 681 P2d 114 (1984) (employee discharged for refusing to defame another employee); Nees v. Hocks, 272 Or 210 , 536 P2d 512 (1975) (employee discharged for serving on jury).” If a party brings a

2015Examples of such circumstances include: (1) when the discharge is for exercising a job-related right that reflects an important public policy, see, e.g., Brown v. Transcon Lines, 284 Or 597 , 588 P2d 1087 (1978) (employee unlawfully discharged for filing workers’ compensation claim); or (2) when the discharge is for fulfilling some important public duty, see, e.g., Delaney v. Taco Time Int’l, 297 Or 10 , 681 P2d 114 (1984) (employee discharged for refusing to defame another employee); Nees v. Hocks, 272 Or 210 , 536 P2d 512 (1975) (employee discharged for serving on jury).” If a party brings a

2015Examples of such circumstances include: (1) when the discharge is for exercising a job-related right that reflects an important public policy, see, e.g., Brown v. Transcon Lines, 284 Or 597 , 588 P2d 1087 (1978) (employee unlawfully discharged for filing workers’ compensation claim); or (2) when the discharge is for fulfilling some important public duty, see, e.g., Delaney v. Taco Time Int’l, 297 Or 10 , 681 P2d 114 (1984) (employee discharged for refusing to defame another employee); Nees v. Hocks, 272 Or 210 , 536 P2d 512 (1975) (employee discharged for serving on jury).” If a party brings a

2015Examples of such circumstances include: (1) when the discharge is for exercising a job-related right that reflects an important public policy, see, e.g., Brown v. Transcon Lines, 284 Or 597 , 588 P2d 1087 (1978) (employee unlawfully discharged for filing workers’ compensation claim); or (2) when the discharge is for fulfilling some important public duty, see, e.g., Delaney v. Taco Time Int’l, 297 Or 10 , 681 P2d 114 (1984) (employee discharged for refusing to defame another employee); Nees v. Hocks, 272 Or 210 , 536 P2d 512 (1975) (employee discharged for serving on jury).” If a party brings a

2000He appears to bring this claim both as a statutory claim under ORS 659.030(1)(f) and as a common-law wrongful discharge claim under the principles established in Holien v. Sears, Roebuck & Co., 298 Or 76 , 689 P2d 1292 (1984).

2000He appears to bring this claim both as a statutory claim under ORS 659.030(1)(f) and as a common-law wrongful discharge claim under the principles established in Holien v. Sears, Roebuck & Co., 298 Or 76 , 689 P2d 1292 (1984).

2022Before considering those alternative arguments, we note that, as we recently clarified in Sherertz v. Brownstein Rask, 314 Or App 331, 341 , 498 P3d 850 (2021), the “right for the wrong reason” doctrine is not implicated in an appeal such as this one, where the alternative arguments were raised in the trial court and not for the first time on appeal.

2022Before considering those alternative arguments, we note that, as we recently clarified in Sherertz v. Brownstein Rask, 314 Or App 331, 341 , 498 P3d 850 (2021), the “right for the wrong reason” doctrine is not implicated in an appeal such as this one, where the alternative arguments were raised in the trial court and not for the first time on appeal.

2022Cite as 318 Or App 87 (2022) 101 law of this or other jurisdictions.’ [Babick, 333 Or] at 409 * * * When identifying an important public duty, ‘we review statutes and other authorities for evidence of a substantial public policy that would * * * be “thwarted” if an employer were allowed to discharge its employee without liability.’ Banaitis v. Mitsubishi Bank, Ltd., 129 Or App 371, 380 , 879 P2d 1288 (1994), rev dismissed, 321 Or 511 (1995) (quoting Nees [v. Hocks], 272 Or [210, ]219[, 536 P2d 512 (1975)]).” McManus v. Auchincloss, 271 Or App 765 , 771–72, 353 P3d 17 , rev den, 358 Or 145 (201

2022Citing Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60 , 20 P3d 180 (2001), defendant contends that we can and should uphold the court’s summary-judgment rul- ing because it was “right for the wrong reason.” As alterna- tive bases on which we might affirm, defendant argues the following: (1) plaintiff’s statutory-retaliation claims fail as a matter of law because he did not engage in “protected activ- ity” under ORS 659A.199(1) or ORS 441.181(1);3 (2) plaintiff’s activity did not fulfill an important public duty as required for a common-law wrongful-discharge claim; and (3

2022Citing Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60 , 20 P3d 180 (2001), defendant contends that we can and should uphold the court’s summary-judgment rul- ing because it was “right for the wrong reason.” As alterna- tive bases on which we might affirm, defendant argues the following: (1) plaintiff’s statutory-retaliation claims fail as a matter of law because he did not engage in “protected activ- ity” under ORS 659A.199(1) or ORS 441.181(1);3 (2) plaintiff’s activity did not fulfill an important public duty as required for a common-law wrongful-discharge claim; and (3

2021The trial court’s findings on the statutory claim were separate from and do not compromise the jury’s 5 As relevant here, plaintiff’s statutory claim required plaintiff to show that defendant took disciplinary action against her for her “disclosure of any informa- tion that the employee reasonably believes is evidence of: “(A) A violation of any federal or state law statute[.]” Cite as 315 Or App 14 (2021) 21 findings or verdict on the common-law wrongful-discharge claim or implicate the constitutional provision.

2021The court acknowledged that, under its case law, ORS 659A.203(1) “is a statutory source of the important public duty to report government wrongdoing that can support a common-law wrongful-discharge claim.” Id. at 447 .

2021Although plaintiff in this case brought both a statutory whistleblowing claim and a common-law wrongful discharge claim, a plaintiff could not do so today under the current statute.4 Although, in this case, the Court of Appeals cor- rectly concluded that whistleblowing in the public employ- ment context can give rise to a wrongful discharge claim, Walker, 299 Or App at 447 , it incorrectly suggested that the existence of that important public policy rests on a court’s legal determination of the plaintiff’s reasonable belief that her employer violated the law in the whistleblowing context.

2021(CC 15CV02202) (CA A163420) (SC S067211) 484 P3d 1035 Plaintiff brought a statutory whistleblowing claim under ORS 659A.203(1) and a common-law wrongful discharge claim against her employer, a semi- independent state agency, alleging that the employer had unlawfully fired her for whistleblowing.

2021Subsequently, in Deatherage, on which defendant’s argument in response to plaintiff’s first assignment of error is substantially premised, we affirmed a trial court deci- sion dismissing a common-law wrongful discharge claim in which the plaintiff alleged that she was fired in retaliation after she had contacted the Oregon Occupational Safety and Health Division to report health and safety violations at her employer’s place of business. 230 Or App at 424 .

2020Lane County Circuit Court 17CV35103; A167209 471 P3d 141 Plaintiff brought against defendants two statutory employment claims and a common-law wrongful discharge claim.

2019In Love v. Polk County Fire District, 209 Or App 474, 492 , 149 P3d 199 (2006), we held that ORS 659A.203(1), which pro- hibits disciplinary action against certain public employee whistleblowers, is a statutory source of the important public duty to report government wrongdoing that can support a common-law wrongful-discharge claim.

2019In Love v. Polk County Fire District, 209 Or App 474, 492 , 149 P3d 199 (2006), we held that ORS 659A.203(1), which pro- hibits disciplinary action against certain public employee whistleblowers, is a statutory source of the important public duty to report government wrongdoing that can support a common-law wrongful-discharge claim.

2015Examples of such circumstances include: (1) when the discharge is for exercising a job-related right that reflects an important public policy, see, e.g., Brown v. Transcon Lines, 284 Or 597 , 588 P2d 1087 (1978) (employee unlawfully discharged for filing workers’ compensation claim); or (2) when the discharge is for fulfilling some important public duty, see, e.g., Delaney v. Taco Time Int’l, 297 Or 10 , 681 P2d 114 (1984) (employee discharged for refusing to defame another employee); Nees v. Hocks, 272 Or 210 , 536 P2d 512 (1975) (employee discharged for serving on jury).” If a party brings a

2015Examples of such circumstances include: (1) when the discharge is for exercising a job-related right that reflects an important public policy, see, e.g., Brown v. Transcon Lines, 284 Or 597 , 588 P2d 1087 (1978) (employee unlawfully discharged for filing workers’ compensation claim); or (2) when the discharge is for fulfilling some important public duty, see, e.g., Delaney v. Taco Time Int’l, 297 Or 10 , 681 P2d 114 (1984) (employee discharged for refusing to defame another employee); Nees v. Hocks, 272 Or 210 , 536 P2d 512 (1975) (employee discharged for serving on jury).” If a party brings a

2015Examples of such circumstances include: (1) when the discharge is for exercising a job-related right that reflects an important public policy, see, e.g., Brown v. Transcon Lines, 284 Or 597 , 588 P2d 1087 (1978) (employee unlawfully discharged for filing workers’ compensation claim); or (2) when the discharge is for fulfilling some important public duty, see, e.g., Delaney v. Taco Time Int’l, 297 Or 10 , 681 P2d 114 (1984) (employee discharged for refusing to defame another employee); Nees v. Hocks, 272 Or 210 , 536 P2d 512 (1975) (employee discharged for serving on jury).” If a party brings a

2015Examples of such circumstances include: (1) when the discharge is for exercising a job-related right that reflects an important public policy, see, e.g., Brown v. Transcon Lines, 284 Or 597 , 588 P2d 1087 (1978) (employee unlawfully discharged for filing workers’ compensation claim); or (2) when the discharge is for fulfilling some important public duty, see, e.g., Delaney v. Taco Time Int’l, 297 Or 10 , 681 P2d 114 (1984) (employee discharged for refusing to defame another employee); Nees v. Hocks, 272 Or 210 , 536 P2d 512 (1975) (employee discharged for serving on jury).” If a party brings a

2011In any event, plaintiff acknowledges that, in Carlson v. Crater Lake Lumber Co., 103 Or App 190, 195 , 796 P2d 1216 (1990), adh’d to as modified on recons, 105 Or App 314 , 804 P2d 511 (1991), this court held that ORS 652.355 provides an adequate remedy for those who have suffered retaliation for bringing a good faith wage claim and, therefore, Oregon does not permit a common-law wrongful discharge claim based on the conduct.

2011In any event, plaintiff acknowledges that, in Carlson v. Crater Lake Lumber Co., 103 Or App 190, 195 , 796 P2d 1216 (1990), adh’d to as modified on recons, 105 Or App 314 , 804 P2d 511 (1991), this court held that ORS 652.355 provides an adequate remedy for those who have suffered retaliation for bringing a good faith wage claim and, therefore, Oregon does not permit a common-law wrongful discharge claim based on the conduct.

2011In any event, plaintiff acknowledges that, in Carlson v. Crater Lake Lumber Co., 103 Or App 190, 195 , 796 P2d 1216 (1990), adh’d to as modified on recons, 105 Or App 314 , 804 P2d 511 (1991), this court held that ORS 652.355 provides an adequate remedy for those who have suffered retaliation for bringing a good faith wage claim and, therefore, Oregon does not permit a common-law wrongful discharge claim based on the conduct.

2011In any event, plaintiff acknowledges that, in Carlson v. Crater Lake Lumber Co., 103 Or App 190, 195 , 796 P2d 1216 (1990), adh’d to as modified on recons, 105 Or App 314 , 804 P2d 511 (1991), this court held that ORS 652.355 provides an adequate remedy for those who have suffered retaliation for bringing a good faith wage claim and, therefore, Oregon does not permit a common-law wrongful discharge claim based on the conduct.

2009Quoting the language from Holien set out above, we concluded that, for the same reasons, the equitable remedies available by statute to whistleblowers were not *571 “adequate” so as to preclude the common-law claim. 97 Or App at 540 .