McClusky v. City of North Bend

“Proof of a causal connection between protected conduct and a materially adverse action can be established (1) indirectly, by showing that the protected activity was closely followed by discriminatory treatment***or (2) directly, through evidence of retaliatory animus directed against a plaintiff by the defendant”. Meyer v. Oregon Lottery, 292 Or App 647, 681-82. “An employee has engaged in protected activity under ORS 659A.199 if that employee has reported information that they subjectively believe is a violation of a state or federal law, rule, or regulation and has a good faith basis for that belief”. Boyd v. Legacy Health, 318 Or App 87, 98-99.

Plaintiff appeals, for a second time, a motion for summary judgement dismissing four claims of unlawful employment discrimination, whistleblowing, and public employee whistleblowing under ORS 659A. Plaintiff assigns error to the trial court, arguing that there were genuine issues of material fact as to claim one, regarding causation between the protected activity and termination, and to claim two, regarding his good faith report of state law violations of another employee. In claims three and four, plaintiff further argues that the definition of “public employer” under ORS 659A.200(6) does not limit the report of violations to only plaintiffs employer in ORS 659A.203(b)(1). Defendant responds that plaintiff failed to establish causation and could not have had good faith. “Proof of a causal connection between protected conduct and a materially adverse action can be established (1) indirectly, by showing that the protected activity was closely followed by discriminatory treatment***or (2) directly, through evidence of retaliatory animus directed against a plaintiff by the defendant”. Meyer v. Oregon Lottery, 292 Or App 647, 681-82. “An employee has engaged in protected activity under ORS 659A.199 if that employee has reported information that they subjectively believe is a violation of a state or federal law, rule, or regulation and has a good faith basis for that belief”. Boyd v. Legacy Health, 318 Or App 87, 98-99. The Court reasoned that because there are genuine issues of material fact on claims one and two, regarding causation and plaintiff’s subjective good faith, the trial court erred in granting summary judgement and dismissing those claims. The Court further reasoned that because plaintiff failed to provide evidence to support claim three, the trial court did not err in dismissing claims three and four. Therefore, the dismissals of claims one and two are reversed and remanded, otherwise affirmed.