Douglas Ossanna v. Nike, Inc.

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.

Judgment on claims for safety complaint retaliation

and whistleblower retaliation reversed and remanded; otherwise

affirmed.