Civil action
Amended by SB 1567
Effective since June 3, 2022
Relating to energy infrastructure resilience; creating new provisions; amending ORS 659A.885; and prescribing an effective date.
Source:
Section 659A.885 — Civil action, https://www.oregonlegislature.gov/bills_laws/ors/ors659A.html.
Notes of Decisions
Under former similar statute (ORS 659.121)
Since actions brought under this section are equitable in nature, Article I, section 17 of Oregon Constitution, does not require jury trial. Wincer v. Ind. Paper Stock Co., 48 Or App 859, 618 P2d 15 (1980)
Where telephone company discharged compensably injured employe, she was entitled to bring suit for injunctive relief and was not limited to or required to exhaust remedies provided by collective bargaining agreement. Vaughn v. Pacific Northwest Bell Telephone, 289 Or 73, 611 P2d 281 (1980)
Prevailing defendant in action pursuant to this section is entitled to award of attorney fees only if claim is brought in bad faith, is unreasonable or groundless or if plaintiff persists in litigating claim after it becomes evident claim is unreasonable or unfounded. Dobie v. Liberty Homes, 53 Or App 366, 632 P2d 449 (1981); Turnbow v. K.E. Enterprises, Inc., 155 Or App 59, 962 P2d 764 (1998)
This section does not abrogate common law tort of wrongful discharge. Holien v. Sears, Roebuck and Co., 66 Or App 911, 677 P2d 704, aff’d 298 Or 76, 689 P2d 1292 (1984); Carlson v. Crater Lake Lumber Co., 103 Or App 190, 796 P2d 1216 (1990), as modified by 105 Or App 314, 804 P2d 511 (1991)
When plaintiff seeks equitable relief of reinstatement, impossibility of reinstatement is affirmative defense and burden of establishing it rests on employer. Millsap v. Eugene Care Center, 68 Or App 223, 682 P2d 795 (1984), Sup Ct review denied
On establishment in Oregon discrimination actions of prima facie case, burden does not shift from plaintiff where issue is simply whether plaintiff’s allegation or employer’s denial of discrimination is correct. Callan v. Confed. of Oreg. Sch. Adm., 79 Or App 73, 717 P2d 1252 (1986). But see Livingston v. Fred Meyer Stores, Inc., 567 F. Supp. 2d 1265 (D. Or. 2008)
In civil action pursuant to this section, evidence of employe’s abilities to perform work duties at time of discharge is admissible even though information was not unavailable to employer at time of discharge. Brown v. City of Portland, 80 Or App 464, 722 P2d 1282 (1986), Sup Ct review denied
In case brought pursuant to this section, plaintiff’s failure to include in prayer request for injunction did not mean that he had failed to allege facts sufficient to state claim. Davis v. Surcamp, 86 Or App 310, 738 P2d 1006 (1987)
In action brought under this section, court properly did not limit attorney fees on basis of contingency fee agreement, but determined independently that amount it assessed was reasonable. Cook v. Coos-Curry Electric Cooperative, Inc., 86 Or App 600, 740 P2d 201 (1987)
Discrimination statute does not preempt tort of intentional infliction of emotional distress. Palmer v. Bi-Mart Company, 92 Or App 470, 758 P2d 888 (1988)
Definition of “tort” contained in ORS 30.260 applied to claim under this section and plaintiff was required to plead notice under Oregon Tort Claims Act. Brinkley v. Oregon Health Sciences University, 94 Or App 531, 766 P2d 1045 (1988), Sup Ct review denied
Exclusivity provision of ORS 656.018 does not apply to employment discrimination injuries. Seitz v. Albina Human Resources Center, 100 Or App 665, 788 P2d 1004 (1990)
Multiple family members allegedly fired in retaliation for one family member’s behavior have no derivative wrongful discharge claim. Carlson v. Crater Lake Lumber Co., 103 Or App 190, 796 P2d 1216 (1990), as modified by 105 Or App 314, 804 P2d 511 (1991)
This provision provides adequate remedies and excludes common law remedies. Farrimond v. Louisiana-Pacific Corp., 103 Or App 563, 798 P2d 697 (1990)
Where one of three claims brought pursuant to this provision is still pending in trial court, trial court must deny request for attorney fees. Farrimond v. Louisiana-Pacific Corp., 103 Or App 563, 798 P2d 697 (1990)
Unlawful employment practices claim by employee alleging racial discrimination and one year statute of limitations began to accrue on date employee was denied promotion, since harm occurs whether or not position is ever filled by another person. Cortez v. State of Oregon, 121 Or App 602, 855 P2d 1154 (1993), Sup Ct review denied
Plaintiff’s ability to bring wrongful discharge action based on resistance to discrimination does not depend on form of discrimination. Goodlette v. LTM, Inc., 128 Or App 62, 874 P2d 1354 (1994)
Victim is not required to prove reasonable effort was made to resolve conflict in order to obtain injunctive relief. Ballinger v. Klamath Pacific Corp., 135 Or App 438, 898 P2d 232 (1995), Sup Ct review denied
At-will employee may claim for loss of future earnings and fringe benefits as part of compensatory damages. Wooton v. Viking Distributing Co., Inc., 136 Or App 56, 899 P2d 1219 (1995), Sup Ct review denied; Tadsen v. Praegitzer Industries, Inc., 136 Or App 247, 902 P2d 586 (1995), aff’d 324 Or 465, 928 P2d 980 (1996)
Oregon Tort Claims Act precludes award of punitive damages for unlawful employment practice by government body. Faro v. Highway Division, 143 Or App 388, 923 P2d 1298 (1996), modified144 Or App 399, 927 P2d 623 (1996), aff’d 326 Or 317, 951 P2d 716 (1998)
“Occurrence” commencing running of statute of limitations is unlawful conduct or practice, not discovery by employee. Huff v. Great Western Seed Co., 322 Or 457, 909 P2d 858 (1996)
Standard of proof for damages in claim of future lost pay and benefits is reasonable probability. Tadsen v. Praegitzer Industries, Inc., 324 Or 465, 928 P2d 980 (1996)
Compensatory damages for front or back pay are not recoverable against coworkers. Schram v. Albertson’s, Inc., 146 Or App 415, 934 P2d 483 (1997)
This section, in pari materia with ORS 20.075, permits court to adopt discretionary rule that awards attorney fees to defendant in unlawful employment action only if action is frivolous. McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 957 P2d 1200 (1998), clarified 327 Or 185, 957 P2d 1200 (1998)
To qualify as prevailing party, plaintiff must succeed on significant issue that achieves at least some of benefit plaintiff sought in bringing suit. Siverly v. Young and Morgan Trucking Co., 172 Or App 282, 17 P3d 579 (2001)
In determining whether plaintiff’s claim was frivolous, unreasonable or without foundation, so as to justify award of attorney fees, court may give consideration both to merits of claim and to procedural or substantive developments during litigation. McCarthy v. Oregon Freeze Dry, Inc., 334 Or 77, 46 P3d 721 (2002)
Amount of award for violation of whistleblower law (ORS 659A.203) by governmental entity is subject to Oregon Tort Claims Act limit on liability in [former] ORS 30.270. Rabkin v. Oregon Health Sciences University, 350 F3d 967 (9th Cir. 2003)
In general
Prevailing defendant may recover attorney fees only if plaintiff brought claim in bad faith or if claim was unfounded or unreasonable. Chase v. Vernam, 199 Or App 129, 110 P3d 128 (2005)
Plaintiff’s claim is not unfounded or unreasonable if, viewed in light most favorable to plaintiff, plaintiff presented evidence that, if believed, could reasonably lead factfinder to find that elements necessary to constitute claim had been established. Chase v. Vernam, 199 Or App 129, 110 P3d 128 (2005)
Where action is adjudicated in federal court, after plaintiff establishes prima facie case for Oregon discrimination action, burden of proof shifts to defendant to establish legitimate, nondiscriminatory reason for adverse employment action. Livingston v. Fred Meyer Stores, Inc., 567 F. Supp. 2d 1265 (D. Or. 2008)
Law Review Citations
Under former similar statute (ORS 659.121)
19 WLR 67 (1983); 31 WLR 179 (1995)
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