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Date: 01-31-2018

Case Style:

Douglas Ossanna v. Nike, Inc.

Oregon Supreme Court Building - Eugene, Oregon

Case Number: A157434

Judge: Dehoog

Court: Oregon Court of Appeals on appeal from the Circuit Court, Multnomah County

Plaintiff's Attorney: Mike Estok and Glen McClendon

Defendant's Attorney: Brenda K. Baumgart and Amy Joseph Pedersen

Description: Plaintiff is a licensed electrician who previously
worked for defendant, Nike, Inc., in its maintenance department.
Defendant fired plaintiff after he used one of defendant’s
on-site basketball courts at a prohibited time. In
response, plaintiff sued defendant for, among other things,
statutory safety complaint and whistleblower retaliation.
Plaintiff alleged that defendant’s explanation for terminating
his employment was a pretext, and that the real reason
that defendant discharged him was to retaliate for safety
complaints that he had made about defendant’s electrician
apprenticeship program. Defendant responded that its decision
to fire plaintiff resulted from an independent investigation,
unrelated to plaintiff’s safety complaints.
On appeal, plaintiff argues that, in light of evidence
that his supervisors possessed a retaliatory motive
and improperly influenced the investigation, the trial court
erred in refusing his request for a special jury instruction.
Specifically, plaintiff contends that he was entitled to have
the jury instructed on a “cat’s paw”1 theory, which would have
allowed his supervisors’ improper motives to be imputed
to the corporate decision-maker who ultimately fired him.
Defendant disagrees, arguing that the cat’s paw instruction
was not warranted and that, because the court’s instructions
on corporate agency and substantial factor causation
adequately instructed the jury regarding plaintiff’s theory
of liability, the court did not err even if the requested
instruction was warranted. For the reasons that follow, we
conclude that the trial court erred in failing to give plaintiff’s
requested instruction. Accordingly, we reverse and
remand.
In reviewing whether a trial court has erred in denying
a requested jury instruction, we consider the evidence at
1 The term “cat’s paw” derives from a fable conceived by Aesop, in which a
monkey convinces a cat to remove roasting chestnuts from a fire. After the cat
burns its paws doing the monkey’s bidding, the monkey steals the chestnuts.
Staub v. Proctor Hosp., 562 US 411, 415 n 1, 131 S Ct 1186, 179 L Ed 2d 144 (2011).
In practice, the cat’s paw theory—also known as the “imputation of subordinate
bias theory”—allows for the unlawful motive of a subordinate to be imputed to
an ostensibly independent decision-maker who has made an adverse employment
decision. Id. at 415.
Cite as 290 Or App 16 (2018) 19
trial and any resulting inferences in the light most favorable
to giving the instruction. Jett v. Ford Motor Company, 192
Or App 113, 120, 84 P3d 219, rev den, 337 Or 160 (2004).
If, after review, we conclude that the trial court has erred,
we consider the record as a whole to determine whether the
error was nonetheless harmless. See id. at 118. We state the
facts consistently with those standards.
In 2007, defendant hired plaintiff, a licensed electrician,
to work in its maintenance department. In 2009,
defendant established an electrician apprenticeship program
(EAP) so that several of its employees could obtain a Limited
Maintenance Electrician license. Consistent with various
state law requirements, defendant’s program required each
apprentice to take classes at Portland Community College
(PCC) and to complete 4,000 hours of on-the-job training
under the supervision of a licensed electrician. PCC’s Metro
Limited Maintenance Electrician Joint Apprentice Training
Committee (JATC) administered the program.
Shortly after defendant commenced its apprenticeship
program, plaintiff discovered that apprentices were
working without the direct supervision required for all
on-the-job training hours. Plaintiff reported safety concerns
related to the apprentices working without supervision to
individuals in defendant’s chain of command. First, plaintiff
spoke with his direct supervisor, Dan Delgado, who managed
the EAP. Then, in May 2011, plaintiff shared multiple
safety concerns with Nellie St. Jacques, defendant’s facilities
director. In addition to his concerns about the EAP,
plaintiff mentioned to St. Jacques that some employees in
the maintenance department had been drinking at lunch
and then driving company vehicles. St. Jacques addressed
the employee drinking issue by firing five maintenance
department employees, but she did not address plaintiff’s
complaint about the EAP.
In the following months, two workplace incidents
raised further concerns for plaintiff. Each incident involved
electrical work by unsupervised apprentices that, in plaintiff’s
view, had created a substantial risk of electrocution or
other serious injury to the apprentices or to other workers.
Plaintiff shared his concerns regarding the lack of direct
20 Ossanna v. Nike, Inc.
supervision with Delgado. Plaintiff and a fellow electrician,
Shawn Hodson, later raised their safety concerns with
Stephanie Hammer, defendant’s risk manager for environmental
safety. The investigation that followed was limited
to getting Delgado’s assurances that the EAP was in compliance
with state regulations. Plaintiff and Hodson also
made the same safety complaints to Deb Hellmer-Steele,
who was the senior director of global corporate services and
St. Jacques’s superior. Hellmer-Steele responded by directing
St. Jacques to investigate those complaints. But, as with
each of the previous complaints, plaintiff did not observe
any significant changes in response to his concerns.
In December 2011, defendant hired Mark Treppens
as its maintenance operations manager. After being hired,
Treppens learned of plaintiff’s safety concerns and later
wrote an email to himself noting that an apprentice had
reported overhearing plaintiff and Hodson discuss plans
to file a complaint with Oregon Occupational Safety and
Health Administration (OSHA).2 One of Treppens’s first
tasks in his new position was to replace a supervisor fired by
St. Jacques in response to plaintiff’s report about employee
drinking. Treppens told plaintiff that he had no chance
of getting the supervisor position himself “because of the
past.” Plaintiff understood Treppens’s mention of “the past”
to refer to his past safety complaints. Plaintiff conveyed to
St. Jacques what Treppens had said about the promotion,
prompting Treppens to call plaintiff into his office where he
denied having made the remark. Although Treppens later
interviewed plaintiff for the supervisor position, he ultimately
passed him over for the promotion.
In February 2012, Hodson resigned. In an exit
interview with Randi Miller, an employee relations manager,
Hodson again expressed concerns regarding the
EAP. Miller asked plaintiff about Hodson’s complaints and
plaintiff confirmed that they were valid. After resigning,
Hodson filed safety complaints regarding the program with
both Oregon OSHA and JATC. In May 2012, JATC followed
2 Oregon OSHA is a division of the Department of Consumer and Business
Services that is authorized by statute to enforce statewide workplace safety
rules. See ORS 654.003.
Cite as 290 Or App 16 (2018) 21
up with a site visit to the Nike campus to review the EAP.
During the site visit, Delgado told Katrina Cloud, the JATC
administrator, that he intended to continue operating the
EAP according to “business as usual,” and that he did not
plan any changes in the program to address the safety concerns
that plaintiff and others had raised. Following Cloud’s
visit, plaintiff contacted her and repeated his safety concerns
directly to her; he also filed his own safety complaint
with Oregon OSHA.
On December 27, 2012, the Nike campus was in
“PowerDown” mode for the holidays, and most buildings
on campus were closed. Plaintiff had taken a vacation day
but was called into work because two contractors could not
access the “Bo Jackson” building to complete a maintenance
project. After reviewing their work, plaintiff invited the contractors
to shoot baskets in the Bo Jackson gym. Plaintiff
used his employee badge to gain access to that part of the
building. When the three entered the gym, they noticed
that the floor had recently been varnished but concluded
that their use would not damage the floor, because it was no
longer tacky. They were joined by plaintiff’s son, who lived
nearby, and the four shot baskets for about 20 minutes.
On January 7, 2013, Delgado and Treppens asked
plaintiff to explain what he had been doing in the Bo Jackson
gym during PowerDown, and implied that the gym floor
had been damaged by his use. Plaintiff ultimately acknowledged
that he had used his access badge to allow the others
to play basketball, but denied that they had damaged the
floor. Two days later, Delgado and Treppens called plaintiff
into another meeting, which ended with plaintiff agreeing
to resign his position with Nike. Later that day, however,
plaintiff and his wife went to the employee relations department
and told Miller that he had resigned only because he
felt coerced, and that he wanted to rescind his resignation.
Miller responded that, if plaintiff did not want to resign,
he would be fired, but told him that he could appeal that
decision within Nike. Plaintiff pursued that appeal and was
placed on paid suspension while Miller conducted an investigation
into the grounds for his termination. As further
explained below, Miller’s investigation consisted primarily
of obtaining information from Treppens and Delgado, whom
22 Ossanna v. Nike, Inc.
plaintiff alleged to be motivated to retaliate against him for
his safety complaints. Despite plaintiff’s retaliation claims,
Miller’s investigation led her to conclude that plaintiff’s termination
had been justified, because he had committed a
serious breach of trust and violated defendant’s code of ethics
and other corporate policies by using the Bo Jackson gym
when it was closed. Ultimately, however, St. Jacques made
the final decision to terminate plaintiff, based in part on
Miller’s findings and in part on information that St. Jacques
herself obtained directly from Treppens. St. Jacques did not
interview plaintiff.
After St. Jacques fired plaintiff, he sued defendant
and asserted four claims: (1) safety complaint retaliation
under ORS 654.062(5); (2) whistleblower retaliation under
ORS 659A.199; (3) common law wrongful discharge; and
(4) a state law wage and hour claim. The parties settled
plaintiff’s wage and hour claim and defendant successfully
moved for summary judgment on plaintiff’s common
law claim, leaving only the statutory retaliation claims for
trial. In support of those claims, plaintiff alleged multiple
adverse employment actions by defendant, including, among
other actions, denying him a promotion to supervisor and
terminating his employment. As to St. Jacques’s ultimate
decision to uphold his termination, plaintiff presented alternative
theories as to how that decision had been retaliatory:
Either St. Jacques herself had held a retaliatory motive to
terminate plaintiff because of his earlier internal and external
safety complaints, or, if St. Jacques had not personally
harbored a retaliatory motive, then she had based her decision
to terminate him on information provided by Treppens
and Delgado, who themselves were motivated to retaliate
against him for those reasons.
Before trial, plaintiff requested a special jury instruction
entitled “Imputation of Subordinate Bias.” According to
plaintiff, his requested instruction was warranted in light
of his cat’s paw theory of retaliation, namely, that Treppens
and Delgado had improperly influenced St. Jacques’s ultimate
decision to terminate his employment. Following discussions
with the court, the parties settled on the following
instruction:
Cite as 290 Or App 16 (2018) 23
“Imputation of Subordinate Bias
“Nike contends that Nellie St. Jacques was Nike’s
principal decision-maker regarding [plaintiff’s] termination.
You may impute to Ms. St. Jacques any biased retaliatory
motive against [plaintiff] held by a subordinate of
Ms. St. Jacques’s at Nike, if you find that her adverse
employment decision was not actually independent because
a subordinate had a biased retaliatory motive against
[plaintiff] and that [the] same subordinate influenced,
affected, or was involved in the adverse employment decision
against [plaintiff].”
Despite having agreed to that language at the start
of trial, defendant objected to plaintiff’s instruction before it
could be given at the end of trial. In light of defendant’s objection,
the trial court elected not to give the instruction. The
court observed that it was unaware of any Oregon appellate
decision embracing a cat’s paw theory in connection with a
state employment law claim and that, in its view, plaintiff
could argue his theory of liability under other instructions
that the court intended to give regarding corporate agency
and substantial factor causation. Plaintiff timely excepted
to that ruling. Following deliberations, the jury returned a
verdict in favor of defendant on both retaliation claims.
Before addressing the merits of plaintiff’s assignment
of error, we consider defendant’s contention that plaintiff
invited the error he raises on appeal. Defendant argues
that plaintiff invited error by choosing not to argue a cat’s
paw theory in closing despite the trial court’s invitation
to argue that theory without the special jury instruction.
Plaintiff responds that, by requesting the special jury
instruction and taking exception to the trial court’s refusal
to give it, he did all that was required to preserve the error
for appeal. See ORCP 59 H. We agree. It is true, that, under
the invited-error doctrine, “a party who ‘was actively instrumental
in bringing about’ an alleged error ‘cannot be heard
to complain, and the case ought not to be reversed because
of it.’ ” State v. Kammeyer, 226 Or App 210, 214, 203 P3d
274, rev den, 346 Or 590 (2009) (quoting Anderson v. Oregon
Railroad Co., 45 Or 211, 216-17, 77 P 119 (1904)). “The doctrine
is generally applicable when a party has invited the
trial court to rule in a particular way under circumstances
24 Ossanna v. Nike, Inc.
that suggest that the party will be bound by the ruling[.]”
Id. (citing State v. Ferguson, 201 Or App 261, 270, 119 P3d
794 (2005), rev den, 340 Or 34 (2006)). “The goal of the rule
is to ensure that parties who make intentional or strategic
trial choices do not later ‘blame the court’ if those choices
prove to be unwise.” Id. (quoting Crawford v. Jackson, 252
Or 552, 555, 451 P2d 115 (1969)). In the context of instructional
error, a party may invite error by acquiescing to an
instruction given by the trial court. State v. Saunders, 221
Or App 116, 122, 188 P3d 449, rev den, 345 Or 416 (2008).
Here, however, plaintiff both objected to the trial court’s
refusal to give a cat’s paw instruction and provided the court
with the language that he believed the law and evidence
supported. Moreover, contrary to defendant’s apparent contention,
plaintiff does not appear to have made a strategic
choice in not arguing a cat’s paw theory through the other
instructions that the court did give. In fact, as we explain
below, the trial court’s corporate agency instruction effectively
precluded that argument. Under such circumstances,
plaintiff did not invite the error he now raises.
Turning to the merits, Oregon law recognizes two
types of error regarding jury instructions: (1) error in failing
to give a proposed jury instruction and (2) error in
the jury instructions that were actually given. Williams v.
Philip Morris Inc., 344 Or 45, 55-56, 176 P3d 1255 (2008),
cert dismissed, 556 US 178 (2009) (citing Bennett v. Farmers
Ins. Co., 332 Or 138, 152-53, 26 P3d 785 (2001)). Plaintiff’s
appeal raises the first type of error—the trial court declined
to give his requested instruction. As a general rule, parties
to an action are entitled to have the jury instructed regarding
their theories of the case “if their requested instructions
correctly state the law, are based on the current pleadings
in the case, and are supported by evidence.” Hernandez v.
Barbo Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998).
There is, however, no error in failing to give an otherwise
proper jury instruction if the substance of the proposed
instruction was fully covered by the other jury instructions
given by the trial court. Id. Moreover, a failure to give the
jury a properly requested jury instruction is reversible error
only if the given instructions, considered as a whole, caused
prejudice to the party who requested the instruction. Id.
Cite as 290 Or App 16 (2018) 25
Accordingly, our first inquiry is whether plaintiff’s
proposed instruction was a correct statement of law. Plaintiff
argues that the trial court erred in concluding that, because
no Oregon court had adopted the cat’s paw theory by the time
of trial, his proposed instruction was not a correct statement
of law. He contends that, even on matters of first impression,
a party is entitled to an instruction on its theory of the
case unless the proposed instruction is either at odds with
a general rule of Oregon law or inconsistent with a specific
application of that rule in an earlier decision. See Montara
Owners Assn. v. La Noue Development, LLC, 357 Or 333,
347-48, 353 P3d 563 (2015). In response, defendant espouses
the trial court’s reasoning, arguing that, “because the ‘cat’s
paw’ doctrine has not been adopted by any Oregon state
court, it is axiomatic that it was not error for the trial court
to refrain from giving this novel instruction[.]” (Emphasis
in original.) However, we agree with plaintiff that the trial
court was required to discern the applicable law even if
plaintiff’s theory presented a matter of first impression.
See Employers Insurance of Wausau v. Tektronix, Inc., 211
Or App 485, 515, 156 P3d 105, rev den, 343 Or 363 (2007)
(concluding that trial court erred in instructing the jury as
to which party bore the burden of proving that an exception
to an insurance policy exclusion applied, even though issue
was one of first impression). Moreover, as we explain below,
we are not wholly persuaded that the issue presented in this
case is, in fact, as novel as the parties and the court apparently
believed at trial.
In determining whether plaintiff’s proposed jury
instruction was a correct statement of law, we begin by
considering the text, context, and any pertinent legislative
history of the underlying statutes with the aim of discerning
the legislature’s intentions. State v. Gaines, 346 Or 160,
171-72, 206 P3d 1042 (2009). We start with the text and
context of the statutory provisions, because that is the best
indication of the legislature’s intentions. State v. Walker,
356 Or 4, 13, 333 P3d 316 (2014). At this stage, we consider
any prior constructions of the statutory text by the Oregon
Supreme Court or by us, Liberty Northwest Ins. Corp., Inc.
v. Watkins, 347 Or 687, 692, 227 P3d 1134 (2010), as well as
context, which “includes related statutes and case law.” State
26 Ossanna v. Nike, Inc.
v. Vanburen, 262 Or App 715, 723-24, 337 P3d 831 (2014)
(citing State v. Klein, 352 Or 302, 309, 283 P3d 350 (2012)).
As noted, plaintiff tried two statutory retaliation
claims to the jury: (1) a claim of safety complaint retaliation
under ORS 654.062(5) and (2) a whistleblower claim under
ORS 659A.199. Under ORS 654.062(5), it is
“an unlawful employment practice for any person to bar
or discharge from employment or otherwise discriminate
against any employee * * * because the employee * * * has:
“(a) Opposed any practice forbidden by ORS 654.001 to
654.295, 654.412 to 654.423 and 654.750 to 654.780;
“(b) Made any complaint * * * related to ORS 654.001
to 654.295[.]”3
(Emphasis added.) The employee activities protected by
ORS 654.062(5) include those listed under ORS 654.062(2),
which allows
“any employee * * * [to] complain to the Director of the
Department of Consumer and Business Services * * * of any
violation of law, regulation or standard pertaining to safety
and health in the place of employment, whether or not the
employee also notifies the employer.”
Plaintiff contends that his proposed special jury instruction
correctly articulates the causal connection that he must
establish to make out a claim under ORS 654.062(2), that
is, what it means for an employer to take an adverse employment
action “because” an employee has engaged in activity
protected by that statute.
Notably, the legislature has not defined the term
“because” as it appears in ORS 654.062(5). In construing the
term, then, we first consider the plain meaning of “because.”
State v. Dickerson, 356 Or 822, 829, 345 P3d 447 (2015)
(“When the legislature does not provide a definition of a statutory
term, we ordinarily look to the plain meaning of the
statute’s text to determine what particular terms mean.”).
The most apt definition of “because” seems to be “for the reason
that” or “on account of the cause that.” Webster’s Third
3 In relevant part, ORS 654.062(6) gives employees a private right of action
against employers who are alleged to have violated ORS 654.062(5).
Cite as 290 Or App 16 (2018) 27
New Int’l Dictionary 194 (unabridged ed 2002); see Jenkins v.
Board of Parole, 356 Or 186, 194, 335 P3d 828 (2014) (where
“the legislature has not expressly defined the words * * *,
dictionary definitions * * * can be useful”). And a “reason,” in
turn, is defined as “a consideration, motive, or judgment * * *
leading to an action or course of action.” Webster’s at 1891.
Here, therefore, the use of “because” appears to require
some degree of causal relationship between two elements of
plaintiff’s first retaliation claim, where one is an adverse
employment action and the other is a protected activity, such
as making a safety complaint. Thus, the legislature’s use of
“because” in ORS 654.062(5) required plaintiff to establish
that his safety complaints somehow motivated or otherwise
led to defendant’s decision to pass him over for a promotion
or terminate his position; that is, he was required to prove
that “he [had been] subject to an unlawful employment practice
because he made a complaint related to unsafe working
conditions.” Butler v. Dept. of Corrections, 138 Or App 190,
202, 909 P2d 163 (1995) (emphasis added).
Similarly, under ORS 659A.199(1),
“[i]t is an unlawful employment practice for an employer
to discharge, demote, suspend or in any manner discriminate
or retaliate against an employee with regard to promotion,
compensation or other terms, conditions or privileges
of employment for the reason that the employee has in
good faith reported information that the employee believes
is evidence of a violation of a state or federal law, rule or
regulation.”
(Emphasis added.) Like the word “because” in ORS 654.062(5),
the legislature has not defined “for the reason that” as it
appears in ORS 659A.199. As we have just discussed, however,
“for the reason that” is synonymous with “because.”
Webster’s at 194. So, as used in ORS 659A.199, that phrase
similarly appears to require a causal connection between
employment discrimination or retaliation and an employee’s
good faith report of a violation of state or federal law, rule, or
regulation. Accordingly, under both of plaintiff’s statutory
theories of liability, he was required to establish a causal
link between his complaints about safety or the violation of
a law, rule, or regulation, on the one hand, and defendant’s
adverse employment actions, on the other.
28 Ossanna v. Nike, Inc.
We recognize that the plain meaning of the statutory
text does not immediately answer the question whether an
employer’s adverse employment action is taken “because” of
an employee’s protected conduct when the ultimate decisionmaker
is not necessarily biased, but the employee shows that
a biased supervisor influenced or was involved in the decision.
However, as the discussion that follows shows, we find
considerable guidance to that question in our case law.
We have previously considered the causation requirement
found in ORS 654.062(5) and similar statutes. Our
decisions recognize that employment retaliation claims
incorporate the tort principle of causation by requiring proof
that the employee’s protected activity was a substantial factor
in the employer’s adverse decision. See, e.g., Estes v. Lewis
and Clark College, 152 Or App 372, 381-82, 954 P2d 792,
rev den, 327 Or 583 (1998) (considering whether a wrongfully
motivated administrator’s recommendation to downsize
the plaintiff’s program was so influential in ultimate
decision to eliminate the plaintiff’s position as to have been
a substantial factor in her discharge); Herbert v. Altimeter,
Inc., 230 Or App 715, 725, 218 P3d 542 (2009) (applying
substantial factor causation standard to retaliation claims
under ORS 654.062(5)). Further, to be a substantial factor,
an employer’s wrongful purpose must be a factor that “made
a difference” in the adverse employment decision. Hardie v.
Legacy Health System, 167 Or App 425, 435-36, 6 P3d 531
(2000), rev den, 332 Or 656 (2001) (citing Estes, 152 Or App
at 381, and concluding that the plaintiff established prima
facie case of employment discrimination where recommendation
of supervisor with discriminatory motive “made a
difference” in manager’s decision to discharge the plaintiff).
Here, plaintiff’s proposed cat’s paw instruction was consistent
with that case law applying the substantial factor standard.
See Employers Insurance of Wasau, 211 Or App at 514
(stating that parties are entitled to jury instructions that
are consistent with established principles of Oregon law).
Thus, contrary to the trial court’s apparent understanding,
the theory underlying plaintiff’s requested jury instruction
was not entirely novel at the time of trial.
Moreover, to the extent that cases like Estes and
Hardie stopped short of holding that, under appropriate
Cite as 290 Or App 16 (2018) 29
circumstances, a subordinate’s bias can be imputed to an
otherwise independent decision-maker, we have now explicitly
reached that conclusion in two recent employment law
decisions, La Manna v. City of Cornelius, 276 Or App 149,
366 P3d 773 (2016), and LaCasse v. Owen, 278 Or App 24,
373 P3d 1178 (2016). Although neither case expressly uses
the term “cat’s paw,” both hold that the wrongful motives
of a subordinate can be imputed to an ostensibly independent
decision-maker in circumstances analogous to those
in plaintiff’s case. In La Manna, the plaintiff, who was an
applicant for an officer position in the defendant’s police
department, sued for discrimination after the city manager,
Waffle, required the plaintiff to withdraw his application.
276 Or App at 151-53. The plaintiff, a gay man, was 50 years
of age when he applied for the position and, among other
claims, alleged age discrimination under state and federal
statutes and sexual orientation discrimination under ORS
659A.030. Id. at 151. The plaintiff based his age discrimination
claims in part on comments made by Russell, one of
the officers involved in the application process. Id. at 152. He
based his sexual orientation claim on the fact that Waffle
claimed to have required the plaintiff to withdraw his
application because the plaintiff was a friend of the police
chief, and he wanted to avoid the appearance of favoritism.
Id. at 153-54. The plaintiff viewed that explanation as a pretext,
because the defendant had previously hired two other
friends of the police chief. Id. at 154. The trial court granted
summary judgment on all of the plaintiff’s claims, concluding
that he had not raised a genuine issue of material fact as
to any discriminatory act. Id. at 156.
In relevant part, the defendant’s arguments on
appeal included the contention that Russell’s comments
were not relevant on the age discrimination claims because
Waffle had been the sole decision-maker. Id. at 159. Citing
the Ninth Circuit’s decision in Poland v. Chertoff, 494 F3d
1174 (9th Cir 2007), however, we rejected that argument in
connection with the plaintiff’s federal age discrimination
claim. Id. at 160. We noted that Russell had spoken about
the plaintiff to another officer, Wellhouser, and that the city
recorder, Roth, had complained about the plaintiff’s application
based on information that was ultimately traceable
30 Ossanna v. Nike, Inc.
to Russell. Id. at 160. Given that Waffle testified that he
had required the plaintiff to withdraw based on information
that he had received from Wellhouser and Roth, we
concluded:
“Accordingly, Russell’s opinion about plaintiff was part of
Waffle’s decisionmaking process. See Poland v. Chertoff,
494 F3d 1174, 1182 (9th Cir 2007) (even in a case involving
an ‘independent decisionmaker,’ conduct of a biased subordinate
can prove pretext if ‘the biased subordinate influenced
or was involved in the decision or decisionmaking
process’). Thus, even though they are not direct evidence of
discriminatory motive on Waffle’s part, Russell’s comments
contribute to an inference that the decision to require
plaintiff to withdraw was based on his age.”
Id. at 160. Thus, we recognized Poland’s articulation of the
imputation of subordinate bias theory to correctly state federal
law on this point.4 More important to this case, however,
we applied the same rule to the plaintiff’s state law
age discrimination claim. See id. at 164. Although we did
4 Likewise, in the instant case, plaintiff’s requested jury instruction correctly
reflected the cat’s paw or subordinate bias theory recognized under federal law.
See Shagar v. Upjohn Co., 913 F2d 398, 405 (7th Cir 1990) (on age discrimination
claim, discriminatory motive of a district manager could, under proper circumstances,
be imputed to the committee that ultimately fired the plaintiff). Given
that the cat’s paw theory developed, in part, to address the circumstances that
plaintiff alleged were present in his case, plaintiff argued that it was appropriate
to instruct the jury on that theory here. See Russell v. McKinney Hosp. Venture,
235 F3d 219, 227 (5th Cir 2000) (noting that a subordinate bias claim arises
when an employer purports to decide whether an adverse employment action
is warranted, but merely acts as a rubber stamp for a subordinate’s improper
motives).
We note that, following Shagar, other circuits have used the term “cat’s paw”
when discussing subordinate bias claims, but they have articulated the underlying
theory in various ways. See EEOC v. BCI Coca-Cola Bottling Co. of Los
Angeles, 450 F3d 476, 487 (10th Cir 2006), cert dismissed, 549 US 1334 (2007)
(describing different approaches across circuits). Notably, however, the Ninth
Circuit permits recovery under its version of the cat’s paw theory when the
“biased subordinate influenced or was involved in the decision or the decisionmaking
process.” Poland, 494 F3d at 1182 (emphases added). Consistent with the
Ninth Circuit’s approach, which we adopted in La Manna, plaintiff’s proposed
jury instruction would have required the jury to decide whether St. Jacques’s
decision had been truly independent or, instead, one or more of her subordinates
had possessed “a biased retaliatory motive against” plaintiff and “influenced or
was involved in the adverse employment decision.” Thus, plaintiff’s instruction
was, at a minimum, a correct statement of federal law as articulated in cases like
Poland.
Cite as 290 Or App 16 (2018) 31
not cite Poland in connection with that claim, we incorporated
our conclusions—including our conclusion regarding
the significance of Russell’s comments—from our federal
law analysis, indicating that the cat’s paw theory applied
to the plaintiff’s state law claim just as it did to his federal
claim. Id.
Even more significantly, we made that implicit
adoption of the cat’s paw theory explicit when addressing
the plaintiff’s state law sexual orientation discrimination
claim. Id. at 165. As to that claim, the defendant argued
that Waffle was not even aware that the plaintiff was gay,
and so Waffle could not have required him to withdraw
his application “because of” his sexual orientation. Id. at
164-65 (citing ORS 659A.030(1)(a)). Again citing Poland, we
disagreed:
“Wellhouser knew of plaintiff’s sexual orientation, and
he discussed plaintiff, plaintiff’s application for the police
officer position, and plaintiff’s run for sheriff with Waffle,
in support of his view that plaintiff should not be hired.
Even if a trier of fact cannot infer from that evidence that
Wellhouser actually told Waffle that plaintiff was gay,
Wellhouser’s complaint to Waffle can support an inference
that Wellhouser was a ‘biased subordinate’ who ‘influenced
or was involved in the decision or decisionmaking process.’
Poland, 494 F3d at 1182. We agree with the Ninth Circuit
that, to show that defendant—the City of Cornelius—
discriminated against him, plaintiff must show that his
protected characteristic caused the discrimination; plaintiff
is not required to show that the person who made the
decision had the protected characteristic in mind if that
person or the decisionmaking process was influenced by a
subordinate who was biased against the plaintiff because
of the protected characteristic.”
Id. at 165-66; see also LaCasse, 278 Or App at 37 (applying
La Manna and Poland). That conclusion in La Manna, that
the plaintiff was “not required to show that the person who
made the decision had the protected characteristic in mind
if that person or the decisionmaking process was influenced
by a subordinate who was biased against the plaintiff
because of the protected characteristic,” is consistent
32 Ossanna v. Nike, Inc.
with both the interpretation that plaintiff urges for ORS
654.062(5) and ORS 659A.199 and his requested special
jury instruction.
Although, as noted, La Manna construed ORS
659A.030(1)(a) rather than either of the two statutes at
issue in this case, our interpretation of very similar language
in that related statute is valuable context for the
task at hand. See Klein, 352 Or at 309 (interpretive context
for statutes includes related statutes and cases construing
them). Much like plaintiff’s claim under ORS 654.062(5),
which required him to establish that defendant discriminated
against him “because” he had engaged in protected
conduct, liability under ORS 659A.030(1)(a) requires proof
that an employer has discriminated against a current or
prospective employee “because of” a protected status or
characteristic of the employee. And, as we have explained,
we see no practical distinction between the term “because”
in ORS 654.062(5) and the phrase “for the reason that” in
ORS 659A.199. Both, therefore, are analytically the same as
“because of” as that phrase appears in ORS 659A.030(1)(a).
Because we have construed ORS 659A.030(1)(a) to require
a plaintiff only to show that the plaintiff’s protected characteristic
caused discrimination, and not that the “person who
made the decision had the protected characteristic in mind,”
La Manna, 276 Or App at 165-66, we see no justification
for ascribing a different intention to the legislature in construing
ORS 654.062(5) or ORS 659A.199. Accordingly, we
conclude that plaintiff’s proposed jury instruction correctly
stated the applicable law.5
5 The parties have not provided any legislative history to assist us in
determining the legislature’s intentions, nor have we found any that is helpful.
However, to the extent that there remains doubt as to the proper construction of
either statute, we note that both statutes are remedial in nature, and that, by
discouraging employers from hiding their discriminatory decisions behind ostensibly
“neutral” decision-makers, our construction furthers that remedial purpose.
See PSU Association of University Professors v. PSU, 352 Or 697, 710-12, 291 P3d
658 (2012) (noting “protective purposes of ORS Chapter 659A” and discussing
federal case law construing related provisions in Title VII in light of their curative
purpose, which is to protect against retaliation against employees who rely
on the remedial mechanisms provided by that title); Halperin v. Pitts, 352 Or
482, 495, 287 P3d 1069 (2012) (when construing statutes, we construe remedial
statutes to effectuate legislative intent, if that construction is consistent with the
text of the statute).
Cite as 290 Or App 16 (2018) 33
In a memorandum of additional authorities, defendant
acknowledges our acceptance of the subordinate bias
theory in La Manna and LaCasse, but suggests that those
decisions apply only prospectively. But, as plaintiff correctly
observes, on appeal, we apply the law in effect at the time
of appeal. See State v. Jury, 185 Or App 132, 136-37, 57
P3d 970 (2002), rev den, 335 Or 504 (2003) (stating that, in
most instances, it is appropriate to determine whether error
occurred in reference to the law in effect at the time the
appeal is decided). Because the cat’s paw or subordinate bias
theory is the law in Oregon, plaintiff’s proposed instruction
was a correct statement of law.
Having concluded that plaintiff’s proposed instruction
was a correct statement of law, we turn to whether
the operative pleadings at the time of trial supported that
instruction. A party is entitled to an instruction on his theory
of his case if the proposed instruction “engages” the
pleadings. Estate of Michelle Schwarz v. Philip Morris Inc.,
348 Or 442, 452, 235 P3d 668, adh’d to on recons, 349 Or
521, 246 P3d 479 (2010). Defendant argues that plaintiff’s
requested instruction was not supported by the pleadings,
because plaintiff neither alleged facts in support of a cat’s
paw theory in his third amended complaint, nor moved at
trial to conform his pleadings to encompass that theory. In
response, plaintiff points out that defendant’s own pleading
raised the affirmative defense that any adverse employment
actions taken against plaintiff were for legitimate, lawful
reasons. That, plaintiff observes, made the causal link
between plaintiff’s safety complaints and his ultimate termination
a central issue in the case. Plaintiff contends that,
because defendant argued that St. Jacques lacked any retaliatory
motive to terminate his employment, the question of
whose motivations were relevant—a question answered by
plaintiff’s proposed jury instruction—arose directly from
that defense. We agree with plaintiff that the pleadings support
his proposed special jury instruction. First, plaintiff’s
third amended complaint alleged that defendant had retaliated
against him “because” of his safety complaints, and,
as we have explained, the cat’s paw instruction is directed
at that causal element. 290 Or App at 27. Second, as plaintiff
points out, defendant’s answer raises that same issue by
34 Ossanna v. Nike, Inc.
contending that defendant took the actions it did for legitimate
reasons.6 Accordingly, we reject defendant’s contention
that the pleadings did not support plaintiff’s requested jury
instruction.
We next consider whether the evidence presented
at trial supported plaintiff’s proposed jury instruction. In
defendant’s view, it did not. But we note that plaintiff’s hurdle
is not high: A party is entitled to an otherwise sound
jury instruction “if there was any competent evidence to
support it.” Crismon v. Parks, 238 Or App 312, 314, 241 P3d
1200 (2010) (citations omitted). Thus, to warrant the issuance
of a cat’s paw instruction, plaintiff had only to produce
competent evidence (1) that a subordinate of St. Jacques was
motivated to retaliate against plaintiff because of his statutorily
protected complaints and (2) that the same biased
subordinate influenced or was involved in the ultimate
decision to terminate his employment. Or, stated somewhat
differently, the evidence at trial must have been capable of
supporting the inference that St. Jacques’s ostensibly independent
employment decision was not wholly insulated from
her subordinates’ wrongful motives. See Poland, 494 F3d at
1182-84 (because investigation leading to unwanted transfer
was not entirely independent, it did not break the causal
chain between plaintiff’s protected activity and that adverse
employment action).
We conclude that the evidence was sufficient to
establish that relationship. First, plaintiff’s evidence supported
the inference that both Treppens and Delgado were
motivated to retaliate against him because of his safety complaints.
For example, Cloud, the JATC administrator, testified
that Delgado had expressed concern that he would personally
bear the consequences if the EAP were to be found
out of compliance with state and federal safety requirements.
6 Also, as we explain in the discussion that follows, plaintiff presented evidence
at trial to support a cat’s paw theory. Thus, we note that, even if the operative
complaint lacked explicit allegations supporting a cat’s paw instruction, the
admission of such evidence without objection would act to amend the complaint
by operation of law. See Whinston v. Kaiser Foundation Hospital, 309 Or 350, 355,
788 P2d 428 (1990), overruled on other grounds by Shoup v. Wal-Mart Stores, Inc.,
335 Or 164, 61 P3d 928 (2003) (“[A] pleading for all practical and legal purposes
is automatically amended whenever an issue not raised by the pleading is tried
by consent.” (Footnotes omitted.)).
Cite as 290 Or App 16 (2018) 35
Plaintiff, in turn, testified that Delgado had shown him a
notice of a hearing where JATC would be assessing EAPrelated
safety concerns and allegations that on-the-job training
hours were being falsely reported; according to plaintiff,
Delgado had told him that, if he disclosed those concerns to
JATC, plaintiff would be barred from the Nike campus. In
addition to that testimony, plaintiff introduced Treppens’s
email in which he had documented plaintiff’s and Hodson’s
intentions to file a safety complaint with Oregon OSHA, and
one of the apprentices in defendant’s program testified that
Treppens had told him, “[Plaintiff] is so big on safety, sooner
or later he’s going to make a mistake, and when he does,
we’ll get him.”
Second, there was evidence from which reasonable
jurors could find that Miller’s investigation into the grounds
for plaintiff’s termination was not free from Treppens and
Delgado’s influence. Indeed, Miller’s investigation relied
primarily on information that she had obtained from those
two individuals, including several emails from each of them
documenting alleged performance and behavioral problems;
Miller later forwarded those emails directly to St. Jacques,
the decision-maker. Miller also accepted Treppens’s assessment
that plaintiff had not been forthcoming or honest
about his use of the gym during PowerDown, a matter that
St. Jacques expressly acknowledged had heavily influenced
her decision to terminate plaintiff. Moreover, Miller went so
far as to obtain input from Treppens when drafting plaintiff’s
termination letter on behalf of St. Jacques.
Finally, there was evidence to support the inference
that Treppens and Delgado directly influenced St. Jacques’s
decision to fire plaintiff. In addition to evidence that
St. Jacques relied on Miller’s investigation—itself based
on little more than Treppens and Delgado’s input—as well
as materials from those two that Miller forwarded to
St. Jacques, plaintiff produced emails suggesting that
St. Jacques sought Treppens’s input in the investigation. Collectively,
plaintiff submitted ample evidence to support his
theory that Treppens and Delgado were directly involved
in Miller’s investigation and that, as a result of both that
connection and St. Jacques’s direct contact with Treppens,
the decision to fire plaintiff was influenced by Treppens
36 Ossanna v. Nike, Inc.
and Delgado and, ultimately, was made because of their
allegedly wrongful motives. That evidence, therefore, supported
plaintiff’s proposed jury instruction.
As defendant notes, however, even though plaintiff’s
proposed jury instruction may be a correct statement
of law and supported by the pleadings and evidence, the
trial court did not err if the substance of the requested jury
instruction was fully covered by the other jury instructions
that the court gave. Hernandez, 327 Or at 106. Defendant
argues that the court did not err in failing to give plaintiff’s
requested instruction, because the substance of plaintiff’s
cat’s paw theory was addressed by the substantial factor
causation and corporate agency jury instructions. We do not
agree, however, that the instructions that were given sufficiently
informed the jury that it could find for plaintiff on a
cat’s paw theory.
The trial court did not give a separate instruction
regarding substantial factor causation, but instead incorporated
that concept into the substantive instructions it
gave regarding the elements of each of plaintiff’s retaliation
claims, presumably intending it to convey the requirement
of a causal link between plaintiff’s safety complaints and
defendant’s adverse employment decision. Specifically, the
court told the jury:
“To recover on this claim, [plaintiff] must prove by a
preponderance of the evidence [that]:
“* * * * *
“(2) Nike discharged, demoted, suspended, refused to
promote, discriminated, or retaliated against [plaintiff]
regarding any term, condition, or privilege of employment;
and [plaintiff] reporting the information was a substantial
factor in Nike’s decision. A substantial factor is a factor
that made a difference.”
In addition, the trial court provided the following instruction
on corporate agency:
“A corporation can act only through its officers or
employees. Any action by an officer or employee of the corporation
is the act of that corporation if the act was within
the scope of that person’s authority and/or employment.”
(Emphasis added.)
Cite as 290 Or App 16 (2018) 37
Without a cat’s paw instruction, the jury would not
understand that it could find a causal link between Treppens’s
and Delgado’s wrongful motives and St. Jacques’s employment
decision based solely upon the influence that those
individuals had on the decision, whether or not St. Jacques
shared their motive in her decision to terminate plaintiff.
That is, a cat’s paw instruction would permit the jury to
impute those motives to defendant, so long as plaintiff could
show that either Treppens or Delgado, who allegedly held
retaliatory motives, had “influenced or [had been] involved
in the decision or decisionmaking process.” Poland, 494 F3d
at 1182. By merely stating that plaintiff’s safety complaints
must be a substantial factor in Nike’s decision, the instruction
that the court gave failed to adequately convey that
message. See Hernandez, 327 Or at 106 (noting that a party
is entitled to a jury instruction when it is needed to fully
explain a material issue not fully addressed by the court’s
other instructions).
The corporate agency instruction, in turn, failed to
fill that gap; in fact, it arguably precluded the argument
that the cat’s paw theory would allow. By limiting defendant’s
liability to acts “within the scope of [the actor’s]
authority and/or employment,” that instruction suggested
that the only relevant actions—and, therefore, the only
relevant motives—were St. Jacques’s actions and motives,
because the decision to terminate plaintiff was only within
her scope of authority and not the authority of the biased
subordinates. As defendant’s evidence showed, neither
Treppens nor Delgado had the authority to terminate plaintiff’s
employment. Thus, rather than provide support for
plaintiff’s subordinate bias argument, the corporate agency
jury instruction, without the benefit of plaintiff’s cat’s paw
instruction, would have constrained the jury’s consideration
of those individuals’ motives and their influence on
St. Jacques’s decision.
Because the court declined to give plaintiff’s instruction,
defendant was able to capitalize on the instructions
given, using them to sever the causal link between plaintiff’s
safety complaints and his termination. Defendant argued in
closing:
38 Ossanna v. Nike, Inc.
“The only permissible question is whether or not the termination
decision was improperly motivated by a desire to
retaliate against [plaintiff], and there is no evidence that
Nellie St. Jacques ever had that motivation.”
And, because the instructions that the court gave did not
inform the jury of the law supporting plaintiff’s cat’s paw
theory—a failing that defendant availed itself of—and,
indeed, were largely counter to it, those instructions did not
fully cover the substance of plaintiff’s requested instruction.
Finally, the trial court’s error in refusing to provide
plaintiff’s requested jury instruction is reversible error
only if the instructions as a whole caused plaintiff prejudice.
Hernandez, 327 Or at 106. The party requesting an
instruction is prejudiced if the trial court’s failure to give
the requested instruction probably created an erroneous
impression of the law in the minds of the members of the
jury and that erroneous impression may have affected the
outcome of the case. Id. at 106-07. Here, the court’s failure
to provide the jury a cat’s paw instruction likely created the
erroneous impression that only St. Jacques’s motives, and
not those of her subordinates, were relevant to the issue
of causation. Because that erroneous impression may have
affected the jury’s verdict in favor of defendant, reversal is
warranted.

Outcome: Judgment on claims for safety complaint retaliation
and whistleblower retaliation reversed and remanded; otherwise
affirmed.

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