Date: 02-08-2017

Case Style: Veronica Hernandez-Nolt v. Washington County

Case Number: A157757

Judge: Tookey

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

Plaintiff's Attorney: Javier Spyker and Michael C. Hernandez

Defendant's Attorney: Christopher A. Gilmore

Description: In this wrongful discharge case, plaintiff appeals
the trial court’s judgment in favor of plaintiff’s former
employer, defendant Washington County.1 Plaintiff asserts
that the trial court erred when it granted a directed verdict
to the county based on its conclusion that plaintiff was
not fulfilling an important public duty, which is a required
element of a wrongful discharge claim, when she truthfully
complied with a federal auditor’s request for information
about a federal program managed by the county. The
county defends the trial court’s conclusion, and also proffers
an alternative reason for affirming, arguing that we should
affirm the court’s grant of a directed verdict on the basis
that plaintiff failed to present evidence that she was constructively
discharged by the county because of her compliance
with the federal auditor’s requests. We conclude that
we should affirm based on the alternative reason advanced
by defendant, and do not reach plaintiff’s arguments about
a public duty.
Because this case is on appeal from a grant of
directed verdict to the county, we view the evidence in the
light most favorable to the nonmoving party—in this case,
plaintiff—and give that party the benefit of every reasonable
inference that may be drawn from the evidence. Fang
v. Li, 203 Or App 481, 484, 125 P3d 832 (2005). In taking
that review, we do not weigh conflicting evidence or evaluate
credibility. Id. at 185. A directed verdict is appropriate only
if the defendant was entitled to judgment as a matter of law.
Id. With that standard in mind, we recite the relevant facts
as follows.
In December 1999, the county hired plaintiff as an
occupancy specialist and Family Self-Sufficiency (FSS) coordinator
for its Department of Housing Services (HS). Prior
to that time, plaintiff had worked in other departments
at the county for several years. Plaintiff’s direct supervisor
was Adell Potter, and the assistant director of HS was
1 This appeal is the second time this case is before us. We previously reversed
the trial court’s grant of summary judgment to the county based on the statute of
limitations. Hernandez-Nolt v. Washington County, 259 Or App 630, 636, 315 P3d
428 (2013).
Cite as 283 Or App 633 (2017) 635
Henry Alvarez. Plaintiff was the only FSS coordinator at
HS, but she spent only about 10 percent of her time on FSS
matters, working on issues as they came up. Plaintiff testified
that FSS was not a priority for HS and that she worked
on matters that she was told to work on, primarily section 8
housing cases.
In March 2002, HS was scheduled to have a management
review of section 8 and low rent public housing
programs, including FSS, by the federal Department of
Housing and Urban Development (HUD). A management
review is a regular audit used by HUD to check that HS
is managing the federal programs appropriately. Before the
audit, Alvarez told plaintiff and the other occupancy specialists
that they needed to “clean up the files” and was angry
about the state of the files for the FSS program. During the
audit, the federal auditor, Joy McCray, met with plaintiff
and Potter. During that interview, Potter answered several
questions about plaintiff’s job and in doing so, according to
plaintiff, made three knowing misrepresentations: (1) that
the FSS program had a program coordinating committee;
(2) that plaintiff spent 90 percent of her time on FSS and 10
percent on section 8, and (3) that plaintiff did not do housing
inspections. Plaintiff did not correct those misrepresentations
during the meeting, nor did she subsequently discuss
her concerns with Potter. The next day, plaintiff was out
of the office conducting housing inspections. The day after
that, plaintiff worked in the office and McCray asked plaintiff
how she tracked the FSS program contracts. In reply,
plaintiff printed off an Excel spreadsheet report for McCray
that she personally used to track contracts. Plaintiff also
informed McCray that, although Potter had said plaintiff
did not perform inspections, she had been out the day before
doing inspections.
The HUD audit report revealed with respect to
the FSS program that HS did not have a sufficient number
of FSS participants; of the 76 active participants, 36 had
expired FSS contracts; the FSS coordinator had not recorded
into the database 25 new contracts signed in the last five
months; the FSS program case management responsibilities
were not being accomplished; annual statements reflecting
636 Hernandez-Nolt v. Washington County
the status of FSS escrow accounts were not being timely
mailed to participants; and only one FSS coordinator was
identified when HUD had provided funding for two coordinators.
However, the only corrective action required by
HUD was that HS review all FSS participant files and handle
expired contracts and the respective escrow account as
outlined in the corrective action report.
Following the audit, in early April 2002, Potter met
with plaintiff and told her that the situation was serious
and that plaintiff’s case load would be reduced and that she
would receive help so that the FSS program issues could be
addressed. To do that, some of plaintiff’s caseload had to be
shifted to other staff, which was addressed at the weekly
staff meeting. Plaintiff believed that there was resentment
from the staff about the shifting of plaintiff’s case load and
that Alvarez was “mean” at the meeting. After the meeting,
plaintiff was upset and told Alvarez that he could not speak
to the staff as he did and said that she had given the federal
auditor the report of the FSS contracts. That same day
a series of closed door meetings occurred between Alvarez
and staff members, ending with plaintiff being called in to
talk to Alvarez and Potter. At that time, Alvarez suggested
that plaintiff stay home the next day because she was visibly
upset, which upset plaintiff enough that she began to cry
because she believed she was being required to stay home.
During her day at home, plaintiff wrote a letter to
Alvarez and Potter “to express my concerns about the work
environment as a result of the recent HUD Audit.” In that
letter, plaintiff requested “specific goals to be set and tasks
outlined” to perform her job and prioritize cleanup of the
FSS files. Plaintiff also expressed that the work environment
had “deteriorated” and was “hostile and threatening
at times” and that she felt that Potter had attempted to use
her during the audit to “confirm and corroborate materially
inaccurate information to the auditor.” Specifically, she noted
that Potter had told the auditor that plaintiff provided counseling
and follow-up to FSS participants. She also expressed
that she believed Alvarez was directing comments to her at
the staff meeting when he said something to the effect of not
being able to work with people he did not trust. Plaintiff did
Cite as 283 Or App 633 (2017) 637
not deliver the letter to Alvarez and Potter until two weeks
later, after the work environment failed to improve.
To follow up on plaintiff’s letter, the county’s human
resources department conducted an investigation that
included a series of interviews with HS staff, and an initial
interview with plaintiff, after which plaintiff refused to further
participate in the investigation. After that investigation,
human resources determined that no one at HS gave
intentionally false or misleading information to the federal
auditors and that the work environment was not hostile
toward plaintiff or other staff.
In June 2002, plaintiff attended FSS program
training and earned her certificate. However, Potter did
not allow plaintiff to attend a regional FSS housing meeting
that occurred after the training because plaintiff was
needed in the office. Plaintiff testified that this made her
feel “bad” and that she took it as harassment by Potter.
In August 2002, plaintiff received her overdue
employee evaluation for 2001. Although the review said that
plaintiff met expectations, Potter included a cover letter to
plaintiff that explained that the evaluation, which covered
2001, did not reflect Potter’s current concerns and that a
work plan was being developed to assist plaintiff in improving
her ability to manage a full caseload. Because of the
cover letter, plaintiff did not concur with the evaluation.
Plaintiff believed that her reduced caseload, which occurred
so that she could focus on FSS, was improperly being used
against her to create a performance issue.
Around the same time, Irma Rafaei became plaintiff’s
new direct supervisor. Rafaei would continually badger
plaintiff about cleaning up the FSS files, and, one day, stood
at plaintiff’s cubicle for hours pushing plaintiff through
the entry of information from several files, which plaintiff
called “pure harassment.” Following that incident, plaintiff
wrote another complaint letter addressed to Susan Wilson,
the director of HS, about Rafaei’s conduct and alleging that
“management’s demands continue to promote a hostile work
environment which [sic] unfair and unacceptable and outrageous.”
A week after delivering that letter, Wilson, Alvarez,
638 Hernandez-Nolt v. Washington County
Potter, and Rafaei met with plaintiff. At that meeting,
Wilson explained the chain of command and informed plaintiff
that Rafaei had been giving her one-on-one training. In
August 2002, plaintiff’s attorney also sent the county a tort
claim notice based on the alleged retaliatory conduct plaintiff
was experiencing.
In September 2002, plaintiff was taken off of the
FSS files and was given a full section 8 housing caseload.
Plaintiff saw this as a demotion, even though it did not
affect her classification or pay and did not result in any
formal discipline. Because she was removed from the FSS
program and placed on a work plan, plaintiff “had a severe
meltdown.” From October 2002 to March 2003, plaintiff saw
a psychologist because of her work stress, as well as other
life stressors she was experiencing. Plaintiff did not testify
about, or provide other evidence of, the work conditions she
experienced at HS after she was taken off the FSS program.
In April 2003, plaintiff transferred to the county’s
Department of Aging and Veterans’ Services (DAVS) to get
away from the work environment at HS. Her position at
DAVS was a promotion and included increased pay. To take
the position, plaintiff was required to go on a probationary
status. After four months at DAVS, in August 2003, plaintiff
was terminated from probationary status, after receiving
reprimands for taking extended breaks that were not authorized
and counseling on work performance, and reinstated
to her former position with HS. She was directed to report
to work at HS starting September 3, 2003.
Instead of returning to HS, plaintiff obtained
approval for 12 weeks of Family and Medical Leave Act
(FMLA) leave due to her stress and anxiety. When her FMLA
leave expired on December 23, 2003, plaintiff did not report
for work. As a result, Alvarez sent her a letter in January
2004 informing her that she was absent without authorization
and that, pursuant to county policy, she was considered
to have voluntarily resigned her position. Plaintiff was asked
to provide information about any unavoidable situation that
prevented her from obtaining authorization for her absence,
which would except her from the voluntary resignation rule.
After receiving the letter, plaintiff did not attempt to contact
Cite as 283 Or App 633 (2017) 639
Alvarez and did not return to work at HS. When the county
did not hear from plaintiff, the county’s counsel confirmed
with plaintiff’s counsel that plaintiff would not be returning
to work. After that confirmation, Alvarez sent plaintiff
a final resignation notice that notified plaintiff that her voluntary
resignation was effective December 23, 2003.
Plaintiff admitted that while she was on FMLA
leave she was not experiencing intolerable working conditions,
that nothing that occurred at HS related to her
working conditions at DAVS, and that she did not find out
what her working conditions would be if she returned to
HS. She also did not attempt to apply to work in a different
department at the county after her termination from DAVS.
However, plaintiff testified that she knew she could not go
back to work at HS because Alvarez and Potter were still at
HS and she could not work for them.
Plaintiff filed a wrongful discharge claim against the
county, alleging that the county constructively discharged
her through retaliatory harassment after she refused to
participate in Potter’s material misrepresentations to the
federal auditor. The case went to trial, and, at the close of
plaintiff’s case, the county moved for a directed verdict. The
county argued that it was entitled to a directed verdict for
either of two reasons: (1) plaintiff failed to show that she was
exercising a job-related right or fulfilling an important public
duty when she refused to participate in Potter’s misrepresentations
to the federal auditor; and (2) plaintiff failed to
show that the county constructively discharged her because
of her exercise of the alleged job-related right or public duty.
The trial court granted a directed verdict for the county
based on its conclusion that plaintiff failed to present evidence
that she was exercising a job-related right or fulfilling
an important public duty. The court did not address the
county’s second ground for a directed verdict.
On appeal, plaintiff argues that she was fulfilling
an important public duty, as embodied in federal law
making it a crime to make material misrepresentations to
a federal officer, when she truthfully complied with the federal
auditor’s requests about HS’s management of the FSS
program. The county defends the trial court’s reasoning
640 Hernandez-Nolt v. Washington County
for granting the directed verdict and also asserts that we
should affirm the trial court’s grant of a directed verdict on
the ground that the trial court did not address below—that
plaintiff failed to demonstrate that she was constructively
discharged by the county for fulfilling the important public
duty as alleged by plaintiff.2 For the reasons set out below,
we agree with the county that we should affirm the trial
court because plaintiff failed to present evidence that she
was constructively discharged because she complied with
the auditor’s requests during the federal audit. Because we
affirm on that ground, we do not address plaintiff’s argument
on appeal regarding whether plaintiff was fulfilling an
important public duty when she complied with the auditor’s
requests during the federal audit.
The general rule in Oregon is that employment is “at
will,” which means that, “absent a contractual, statutory, or
constitutional requirement to the contrary, an employee may
be terminated without notice and for any reason.” Nkrumah
v. City of Portland, 261 Or App 365, 372, 323 P3d 453 (2014).
However, Oregon has recognized that employers may be liable
in tort to an employee for a discharge under “ ‘circumstances
in which an employer discharges an employee for
such a socially undesirable motive that the employer must
respond in damages for any injury done.’ ” Id. (quoting
Lamson v. Crater Lake Motors, Inc., 346 Or 628, 635, 216
P3d 852 (2009)). Those circumstances include “when the
2 In effect, the county’s argument presents an alternative basis for us to
affirm based on the “right for the wrong reason” principle. As a matter of our
discretion, we may affirm a trial court’s ruling on a basis that was argued by
the parties below but that was not relied upon by the court. Clemente v. State
of Oregon, 227 Or App 434, 440, 206 P3d 249 (2009). We may affirm on such
an alternative basis, however, only when (1) “the facts of record [are] sufficient
to support the alternative basis for affirmance”; (2) “the trial court’s ruling [is]
consistent with the view of the evidence under the alternative basis for affirmance”;
and (3) “the record materially [is] the same one that would have been
developed had the prevailing party raised the alternative basis for affirmance
below.” Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20
P3d 180 (2001).
In this case, we conclude that we should exercise our discretion to affirm on
the alternative basis argued by the county. The parties litigated the issue below
and made arguments to the trial court in the context of the county’s directed verdict
motion made at the close of plaintiff’s case. Although the court did not grant
the directed verdict on that basis, the record is materially the same as it would
have been if the trial court had ruled on that basis.
Cite as 283 Or App 633 (2017) 641
discharge is for exercising a job-related right that reflects
an important public policy” or “when the discharge is for fulfilling
some important public duty.” Babick v. Oregon Arena
Corp., 333 Or 401, 407, 40 P3d 1059 (2002).
When, as here, the employee was not discharged but
effected a voluntary resignation, the plaintiff must establish
that he or she was constructively discharged.
“[T]o establish a constructive discharge, a plaintiff must
allege and prove that (1) the employer intentionally created
or intentionally maintained specified working condition(
s); (2) those working conditions were so intolerable
that a reasonable person in the employee’s position would
have resigned because of them; (3) the employer desired to
cause the employee to leave employment as a result of those
working conditions or knew that the employee was certain,
or substantially certain, to leave employment as a result of
those working conditions; and (4) the employee did leave
the employment as a result of those working conditions.”
McGanty v. Staudenraus, 321 Or 532, 557, 901 P2d 841
(1995) (emphasis in original; footnotes omitted). With regard
to the second requirement, the Supreme Court explained in
McGanty that
“[a]n objective test preserves the requirement that there
be a discharge, before there can be a wrongful discharge.
If an employee chooses to quit because of objectively tolerable
working conditions, it cannot be fairly said that the
employer has induced the employee to resign rather than
be fired. Objectively tolerable working conditions simply
are not an inducement to resign.”
Id. at 556 (emphasis in original; citation, internal quotation
marks, and brackets omitted). A constructive discharge is
not, in and of itself, a tort; rather, “it is simply an alternate
means of establishing the element of discharge in a claim
for wrongful discharge.” Handam v. Wilsonville Holiday
Partners, LLC, 225 Or App 442, 447, 201 P3d 920 (2009),
vac’d and rem’d, 347 Or 533, 225 P3d 43, adh’d to on remand,
235 Or App 688, 234 P3d 133, rev den, 349 Or 171 (2010).
For that discharge to be wrongful, the plaintiff must still
establish that the employer’s motive for the constructive discharge
was the plaintiff’s exercise of a job-related right or
an important public duty. Id.
642 Hernandez-Nolt v. Washington County
Plaintiff argues that she met the constructive discharge
test because she showed that (1) her working conditions
became immediately hostile following the federal
audit, including being asked to stay home from work, being
harassed by her new supervisor Rafaei, and being the target
of “derogatory” remarks by Alvarez, (2) management took
no corrective action after plaintiff informed it of the hostile
environment, and (3) plaintiff transferred to DAVS as
a result of that hostile environment and then took FMLA
leave to avoid returning to it.
Granting plaintiff those argued-for inferences, we
conclude that plaintiff did not present any evidence at trial
from which a trier of fact could reasonably infer she was
constructively discharged by the county in December 2003
because of her conduct during the federal audit of HS in
March 2002. The only evidence of a hostile work environment
that plaintiff presented occurred immediately after
the federal audit and ended in September 2002 when plaintiff
was taken off of the FSS case files. Plaintiff did not testify
about any intolerable conditions at HS that occurred
between September 2002 and April 2003 when she transferred
to DAVS. Plaintiff was not experiencing the hostile
work environment she claimed existed at HS during her
four months at DAVS and during her three months of FMLA
leave. However, upon her termination from DAVS, plaintiff
neither found out what her working conditions would be if
she returned to HS, nor did she attempt to apply to work in
a different county or department. The only evidence plaintiff
presented about the objective working conditions at HS in
December 2003, when she resigned, was that Alvarez and
Potter still worked there.
Giving plaintiff the benefit of all reasonable inferences
from the evidence, as we must, the only inference that
the record reasonably permits is that, when plaintiff resigned
from the county in December 2003, she subjectively believed
that she could never work with Alvarez and Potter again.
However, plaintiff presented no evidence from which any
reasonable inference could be made about plaintiff’s objective
work conditions at HS in December 2003. Plaintiff did
not present evidence of the work conditions that she experienced
during the seven months prior to her departure from
Cite as 283 Or App 633 (2017) 643
HS in April 2003 (or why they were intolerable), or evidence
about what her work conditions would be if she returned to
HS in December 2003. See Doe v. Denny’s, Inc., 327 Or 354,
360, 963 P2d 650 (1998) (holding that the plaintiff’s wrongful
discharge claim failed because “she cannot identify any
act or statement by her employer that created or maintained
an intolerable working condition that she would be forced
to endure if she remained on the job”). In sum, plaintiff did
not present any evidence that she was discharged by the
county in December 2003—that is, plaintiff presented no
evidence from which a reasonable inference could be drawn
that Alvarez or Potter were intentionally creating or maintaining
an objectively intolerable work environment at HS in
December 2003—or that plaintiff resigned from the county
as a result of that environment at HS. McGanty, 321 Or at
556 (a claim of wrongful discharge requires “that there be a
discharge, before there can be a wrongful discharge”).
It was plaintiff’s burden to present sufficient evidence
on that issue such that a reasonable factfinder could
find in her favor and, on this record, she did not. Accordingly,
we conclude that the trial court did not err in granting a
directed verdict for the county.

Outcome: Affirmed.

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Defendant's Experts:

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