OTLA Trial Lawyer Winter 2021

60 Trial Lawyer • Winter 2021 Justice Walters dissented, stating the state has an affirmative fiduciary duty under the public trust doctrine to protect trust resources. She faulted the court for rejecting the plaintiffs’ claim based on its determination that the plaintiffs were asking for imposition on the public trust doctrine all principles that apply to pri- vate trusts. JusticeWalters interpreted the plaintiffs as asking for a declaration that the state has a duty to protect trust re- sources from the negative effects of cli- mate change. She understood such a duty to be consistent with the public trust doctrine’s purpose to ensure the public has continuing ability to use and enjoy navigable waters and the lands underly- ing those waters. Trial court properly directed verdict against retaliation claim, did not revers- ibly err in declining to give jury instruc- tion on “adverse employment action,” and properly exercised discretion in denying post-verdict motion for equi- table relief on whistleblower claim. Summerfield v. OLCC , 366 Or 763 (2020), Duncan, J. Michael Rose repre- sented the plaintiff. CaitlinMitchell filed the amicus brief for OTLA. The plaintiff sued his former em- ployer, the Oregon Liquor Control Com- mission (OLCC), alleging various unlaw- ful employment actions, including racial discrimination and harassment. The plaintiff alleged that he and other Afri- can-Americans were persistently being discriminated against and harassed, that he reported this to the OLCC, and the OLCC failed to take any corrective ac- tion. After finding a noose hanging in the warehouse where he worked, the plaintiff left work with acute stress, filed a workers’ compensation claim and remained off work until his medical provider released him to return. When he sought to be reemployed, the OLCC refused and commenced an investigation into the plaintiff ’s alleged misconduct four years earlier. Thereafter, the OLCC terminated the plaintiff ’s employment. After a jury trial, the jury answered questions on a special verdict form and found the defendant had not “intention- ally discriminated against plaintiff be- cause of his race,” “subject[ed] plaintiff to a racially hostile work environment by his co-workers,” or “retaliate[d] against [plaintiff ] for opposing or reporting ra- cial discrimination or racial harassment.” Under the plaintiff ’s whistleblowing claim, the jury found the “defendant had ‘take[n] adverse enforcement [sic] action against plaintiff because he in good faith reported information he believed was a violation of a law, rule or other regula- tion.’” However, the jury awarded the plain- tiff no damages on that claim. The plaintiff filed a post-verdict motion for compensatory damages and equitable relief, which the trial court denied. The plaintiff appealed the judgment and the denial of his motion, the Court of Ap- peals affirmed, and the Supreme Court allowed review of that decision. The Supreme Court first concluded the trial court did not err in granting the defendant’s motion for a directed verdict on the plaintiff ’s reemployment claim. Because the existence of available and suitable employment is an element of the claim for which the plaintiff bore the burden of proof and for which the plain- tiff produced no evidence at trial, the trial court properly granted that directed verdict motion. The Supreme Court next concluded that the trial court’s error in failing to give the plaintiff ’s requested jury instruc- tion on what constitutes an “adverse employment action” under his retaliation claimwas harmless. That was because the plaintiff ’s evidence and argument on the employer’s adverse actions did not dis- tinguish between those taken under his retaliation claim and those taken under his whistleblower claim. Because the jury found in favor of the plaintiff on the Sheets Continued from p 59