Table of Contents 37 BOLI Orders - Oregon.gov

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Table of Contents

37 BOLI Orders

In the Matter of Page

Edgewood Construction LLC; Roberto Garcia, Individually; 2 Tomas Juarez Flores, Individually and Miguel Doe, Individually, Case No. 26-18 Pamplin Broadcasting-Oregon, Inc. dba Pamplin Media 18 Group, Case No. 09-18 & 10-18 Atlas Bolt & Screw Company LLC, Case Nos. 13-18 57 Oregon Truck Painting, LLC, On Time 87 Painting, Inc., Richard Bowman Individually, and Amanda M. Marin, Individually, Case No. 32-17 & 33-17 HYE I. Dickinson, Case Nos. 65-18 & 66-18 117 City Of The Dalles, Columbia Gateway Urban Renewal 141 Agency and Tokola Properties, Inc., Case Nos. 29-19 R. B. Development Corporation Inc, Case No. 07-19 168 Vision International Petroleum LLC & Hai Chheng Gov, 187 Case No. 51-18 Navex Global, Inc., Case No. 59-17 203 Horizontal Motorsports, Inc., and Robert S. Dugger Jr., 205 Individually, Case No. 63-18 Insight Global, LLC, Case No. 76-18 229 PCC Structurals, Inc., Case No. 108-18 246 Derrick's Custom Painting, Inc., Case No. 62-20 271

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_____________________________

In the Matter of

EDGEWOOD CONSTRUCTION LLC; ROBERTO

GARCIA, INDIVIDUALLY; TOMAS JUAREZ FLORES, INDIVIDUALLY AND MIGUEL DOE, INDIVIDUALLY,

RESPONDENTS, CASE NO. 26-18

Final Order of Commissioner Brad Avakian Issued November 16, 2018

_____________________________

SYNOPSIS

The forum concluded that Respondent Edgewood Construction, LLC discriminated against and unlawfully terminated Complainant due to his invocation or use of Workers’ Compensation benefits, in violation of ORS 659A.040(1) and OAR 839-006-0117(1)(a). The forum did not find Respondent Edgewood Construction LLC liable for violation of ORS 659A.043 and OAR 839-006-0130(1)(a)-(d). Respondent Roberto Garcia, Respondent Tomas Juarez-Flores and Respondent Miguel Doe were not held jointly and severally liable as aiders and abettors, due to lack of service. The forum awarded Complainant $21,560.00 in economic damages and $50,000.00 in emotional and mental suffering damages.

_____________________________

The above-entitled case was assigned for hearing to Jennifer Gaddis, designated as Administrative Law Judge (“ALJ”) by Brad Avakian, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The Bureau of Labor and Industries (“BOLI” or “the Agency”) was represented by Administrative Prosecutor Adriana Ortega, an employee of the Agency. Respondents did not file an Answer to the Agency’s Formal Charges, nor did they appear for the contested case hearing. The contested case hearing was held on September 11, 2018 at BOLI’s Portland office, located at 800 NE Oregon Street, Suite 1045, in Portland, Oregon. Complainant Rafael Saldana was present throughout the hearing. The Agency called BOLI Complainant Rafael Saldana and BOLI Civil Rights Investigator Tiffany Ray as witnesses. The forum received into evidence Administrative exhibits X1 through X17. The forum also received into evidence Agency exhibits A1 through A8, and A10. Having fully considered the entire record in this matter, I, Brad Avakian, Commissioner of the Bureau of Labor and Industries, hereby make the following

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Findings of Fact (Procedural, On the Merits, and Ultimate1), Conclusions of Law, Opinion, and Order.

FINDINGS OF FACT – PROCEDURAL

1) On January 25, 2018, the Agency made a request for hearing in this

matter. (Exs. X1, X3) 2) On January 30, 2018, the forum issued a Notice of Hearing to

Respondents and the Agency, which stated the time and place of the hearing as June 5, 2018, beginning at 10:00 a.m., at BOLI’s Portland office, located at 800 NE Oregon Street, Suite 1045, Portland, Oregon. With the Notice of Hearing, the forum also sent a copy of the Agency's Formal Charges,2 a document entitled “Summary of Contested Case Rights and Procedures” containing the information required by ORS 183.413, a copy of the “Responsive Pleadings Rule,” a document entitled “Servicemembers Civil Relief Act (SCRA) Notification,” a multi-language notice explaining the significance of the Notice of Hearing, and a copy of the forum’s contested case hearings rules, OAR 839-050-000 to 839-050-0445. (Exs. X2, X2a-2h)

3) On March 26, 2018, the Oregon Secretary of State’s office confirmed

receipt of the Amended NOH and Formal Charges, on behalf of Respondent Edgewood Construction, LLC. (Ex. X5)

4) On April 19, 2018, the Agency filed its first Motion for Default against

Respondent Edgewood Construction, LLC. (Ex. X6) 5) On April 30, 2018, the forum issued its Interim Order Directing Agency to

Supplement its Motion for Default of Respondent Edgewood Construction, LLC. The order stated:

“On April 19, 2018, the Agency filed a motion for default against

Respondent Edgewood Construction, LLC, in this matter, pursuant to OAR 839-050-150 and OAR 839-050-0330. Respondent’s filing was due April 26, 2018; Respondent Edgewood Construction, LLC (‘Respondent’) filed no response to the Agency’s motion.

“The Agency moved the forum to find Respondent in default, based on its

failure to file an Answer to the Formal Charges. After unsuccessfully attempting to serve Respondent at its last known address, the Agency then served the Formal Charges and Notice of Hearing on the Secretary of State’s office, on

1 The Ultimate Findings of Fact required by OAR 839-050-0370(1)(b)(B) are subsumed within the

Findings of Fact – The Merits. 2 The Agency’s Formal Charges were undated. On February 9, 2018, the forum issued an Amended

Notice of Hearing, which included the Agency’s dated Amended Formal Charges and the accompanying documentation previously sent to Respondents on January 30, 2018. (Exs. X4, X4a-X4h)

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March 7, 2018. Pursuant to ORS 63.121(3)(b)(A)(B), the Agency then needed to serve Respondent or its registered agent a copy of the ‘process, notice or demand and accompanying papers [sent to the Secretary of State’s Office]…by certified or registered mail * * * ’ The Agency then needed to provide the forum with (1) the return receipts of said mailing and (2) an affidavit, by the individual doing the mailing, that this step was complied with. ORS 63.121(3)(c). Unfortunately, this information was not included in the Agency’s motion. The Agency is hereby directed to supplement its motion with (1) a copy of the return receipts of the mailing to Respondent, notifying it that the required documents have been sent to the Secretary of State’s Office, and (2) an affidavit, by the individual doing the mailing, that this step was carried out, pursuant to ORS 63.121(3)(b) and (c).

“IT IS SO ORDERED.”

(Ex. X7)

6) On May 8, 2018, the Agency filed a Motion for Postponement of the contested case hearing. On May 10, 2018, the forum issued its Interim Order re: Agency’s Motion for Postponement and Setting Deadline for Agency to Supplement its Motion for Default. The forum’s order stated:

“On May 8, 2018, the Agency filed a Motion for Postponement of the

contested case hearing, currently set for June 5, 2018. The Agency cited a conflict with another hearing set during that week, which has previously had two set-overs and cannot be postponed again. This being the first request for postponement in this matter, and the prosecutor being unavailable to participate in this case due to being in a hearing on another matter, the Agency’s Motion for Postponement is GRANTED.

“The new hearing information for this matter is as follows: “DATE: TUESDAY, June 26th, 2018, and successive days thereafter

until concluded.

“TIME: 10:00 A.M.

“PLACE: OFFICES OF THE BUREAU OF LABOR & INDUSTRIES, W.W. GREGG HEARINGS ROOM (10TH FLOOR), 1045 STATE OFFICE BUILDING, 800 NE OREGON STREET, PORTLAND, OREGON 97232

“The Case Summary deadline is now: __June 12, 2018__.

“Upon review of the Agency’s Motion for Postponement, I noted that the

Agency failed to mail a copy of its motion to Respondent’s last known address, as required by OAR 839-050-0030(2) and (3). Since there is a pending Motion for Default in this matter, I am aware that at least one respondent’s mail has

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been returned as undeliverable to the Agency.3 Since none of the Respondents have been found in default, however, the Agency must comply with the filing requirements in the contested case rules. The Agency is directed to supplement its Motion for Postponement with a Certificate of Service, indicating it provided a copy of its motion to all named Respondents no later than May 25, 2018.

“Further, upon review of the Agency’s Motion for Default, I noted that the

Certificate of Service on that motion also failed to comply with OAR 839-050-0030(2) and (3). Although the Agency sent a copy of the Motion for Default to Respondent Edgewood Construction, LLC, at its last known address, the Agency failed to send a copy of its motion to any of the other Respondents named in the Agency’s Formal Charges. Until the contested case against a particular respondent is resolved, the Agency must serve a copy of any filing on the respondent. Also, in my interim order, issued April 30, 2018, I directed the Agency to supplement its Motion for Default with proof of service on Respondent Edgewood Construction, LLC of its transmittal of the relevant documents to the Oregon Secretary of State’s office, however, I failed to set a deadline by which to do so. The Agency is directed to supplement its Motion for Default Against Respondent Edgewood Construction, LLC with (1) a copy of the return receipts of the mailing to Respondent, notifying it that the required documents have been sent to the Secretary of State’s Office, (2) an affidavit, by the individual doing the mailing, that this step was carried out, pursuant to ORS 63.121(3)(b) and (c), and (3) a Certificate of Service, indicating it provided a copy of its Motion for Default Against Respondent Edgewood Construction, LLC to all named Respondents no later than May 25, 2018.


(Exs. X8-X9)

7) On June 4, 2018, the forum issued its Interim Order re: Agency’s Motion for Default on Respondent Edgewood Construction, LLC and Redirecting Agency to Supplement the Record with Valid Certificates of Service. The order stated:

“On April 30, 2018, the forum directed the Agency to supplement its

Motion for Default of Respondent Edgewood Construction, LLC with (1) a copy of the return receipts of the mailing to Respondent, notifying it that the required documents have been sent to the Secretary of State’s Office, and (2) an affidavit, by the individual doing the mailing, that this step was carried out, pursuant to ORS 63.121(3)(b) and (c). On May 8, 2018, the Agency moved to postpone the contested case hearing, based on its conflict with another hearing set on the same date. The Agency’s motion was granted, via interim order, on May 10, 2018. At the time of the issuance of the May 10, 2018, interim order, the forum

3 I also note that Respondents share the address of 12216 NE Barnes Rd. #131, Portland, OR 97229.

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had received neither a supplemental filing to the Agency’s Motion for Default nor any information related to when a supplement might be filed. Within its interim order on the postponement, the forum set a deadline by which the Agency was directed to supplement its Motion for Default with the information originally requested on April 30, 2018. The deadline for the Agency to supplement its motion was May 25, 2018. Since the Agency has not supplemented its motion as directed, the Agency’s Motion for Default against Respondent Edgewood Construction, LLC is DENIED. Should the Agency wish to refile a Motion for

Default, with the information requested, the forum would consider that motion in due course.

“Upon review of the Agency’s Motion for Postponement, the forum also

noted that the Agency failed to mail a copy of its motion to any of the named Respondents, as required by OAR 839-050-0030(2) and (3). Since there was a pending Motion for Default, it was apparent that at least one respondent’s mail was returned as undeliverable to the Agency.4 However, since this matter remains pending against all Respondents, the Agency must comply with the filing requirements in the contested case rules. The Agency was directed on May 10, 2018, to supplement the record with a complete Certificate of Service on its Motion for Postponement, indicating it provided a copy of its motion to all named Respondents no later than May 25, 2018. The Agency did not supplement the record as directed. The Agency is now redirected to supplement the record with a complete Certificate of Service on its Motion for Postponement, indicating it provided a copy of its motion to all named Respondents no later than June 18, 2018.

“Upon review of the Agency’s Motion for Default, I noted that the

Certificate of Service on that motion also failed to comply with OAR 839-050-0030(2) and (3). Although the Agency sent a copy of the Motion for Default to Respondent Edgewood Construction, LLC, at its last known address, the Agency failed to send a copy of its motion to any of the other Respondents named in the Agency’s Formal Charges. The Agency was directed on May 10, 2018 to supplement the record with a complete Certificate of Service on its Motion for Default, indicating it provided a copy of its motion to all named Respondents no later than May 25, 2018. The Agency did not supplement the record as directed. The Agency is now redirected to supplement the record with a complete Certificate of Service on its Motion for Default, indicating it provided a copy of its motion to all named Respondents no later than June 18, 2018.


(Ex. X10)

4 It was noted in the May 10, 2018 interim order that Respondents share the address of 12216 NE Barnes

Rd. #131, Portland, OR 97229.

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8) On June 7, 2018, the Agency filed its Second Motion for Postponement of the contested case hearing. On June 11, 2018, the forum issued its Interim Order re: Agency’s Second Motion for Postponement. The order stated:

“On June 7, 2018, the Agency filed a Second Motion for Postponement of

the contested case hearing, currently set for June 26, 2018. The Agency indicated it would be in hearing the next two weeks and had inadequate time to prepare. Pursuant to OAR 839-050-0150, Respondents’ responsive filing(s) would be due June 14, 2018. Since none of Respondents have filed an Answer in this matter and case summaries for the June 26th hearing are due tomorrow, the Agency’s Second Motion for Postponement is GRANTED.

“The new hearing information for this matter is as follows: “DATE: TUESDAY, September 11, 2018, and successive days

thereafter until concluded. “TIME: 10:00 A.M. “PLACE: OFFICES OF THE BUREAU OF LABOR & INDUSTRIES,

W.W. GREGG HEARINGS ROOM (10TH FLOOR), 1045 STATE OFFICE BUILDING, 800 NE OREGON STREET, PORTLAND, OREGON 97232

“The Case Summary deadline is now: __August 28, 2018__.


(Exs. X11-X12)

9) On August 20, 2018, the Agency filed its second Motion for Default on Respondent Edgewood Construction, LLC. On August 24, 2018, the forum issued its Interim Order Directing Agency to Supplement its Second Motion for Default of Respondent Edgewood Construction, LLC. The order stated:

“On August 21, 2018, the Agency filed a second Motion for Default against

Respondent Edgewood Construction, LLC, pursuant to OAR 839-050-150 and OAR 839-050-0330. Any responsive filings by Respondents are due August 28, 2018.

“After service on the Secretary of State, ORS 63.121(3)(c) requires that

the Agency file, ‘as part of the return of service, the return receipt of mailing and an affidavit of the person initiating the proceedings stating that this section has been complied with.’ (emphasis added) Although the Agency provided a printout of the USPS Tracking Results (Agency’s motion, Ex. H), the statute specifically

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requires the return receipt of mailing5 to Respondent Edgewood Construction LLC, notifying it that the Agency has served the Secretary of State’s Office. Before the forum can consider the Agency’s second Motion for Default and any responsive filings by Respondents, the Agency will need to supplement its motion with the return receipt of mailing to Respondent Edgewood Construction LLC, notifying it that the Agency had served the appropriate documents on the Secretary of State’s Office.


(Exs. X13-X14)

10) On August 28, 2018, the Agency timely filed its Case Summary. None of the named Respondents filed Case Summaries. (Ex. X15)

11) On September 6, 2018, the Agency filed its Supplement to Agency’s

Second Motion for Default of Respondent Edgewood Construction, LLC, which included the returned certified mailing referenced in the forum’s Interim Order Directing Agency to Supplement its Second Motion for Default of Respondent Edgewood Construction, LLC.6 (Exs. X16-X17)

12) The hearing began on September 11, 2018. None of the Respondents

attended the hearing. Based on their failure to appear, Respondents were found in default, pursuant to OAR 839-050-0330(1)(d).7 The Agency was still required to present a prima facie case of the allegations alleged in its charging document. (Hearing Record)

13) At the start of hearing, the ALJ orally informed the Agency and

Complainant Saldana of the issues to be addressed, the matters to be proven, and the procedures governing the conduct of the hearing. (Hearing Record)

14) The hearing concluded and the record closed on September 11, 2018.

15) On October 24, 2018, the ALJ issued a proposed order that notified the

Agency that it was entitled to file exceptions to the proposed order within ten days of the order’s issuance. (Ex. X18)

5 A ‘return receipt’ is a green postcard labeled ‘PS Form 3811.’ In the Matter of Soapy's, Inc., 14 BOLI 86,

87-88 (1995) (referencing a certified mail return receipt labeled as ‘PS Form 3811’). See also Ayres v. Bd. of Parole & Post Prison Supervision, 194 Or App 429, 438, 97 P3d 1, 7 (2004) (taking judicial notice of US Postal Service procedures).

6 Pursuant to OAR 839-050-0150, Respondent Edgewood Construction LLC then had seven days by which to respond. Since the hearing was set to begin prior to the expiration of the seven-day response period, the Forum did not rule on the Agency’s August 20, 2018 Motion for Default. Had the Agency received the requested supplemental information and been able to file it with the Contested Case Coordinator sooner, the Agency’s Motion for Default would have been granted.

7 Based on subsequent review of the record, however, Respondents Garcia, Juarez Flores and “Doe” were not properly served with the Agency’s Formal Charges. Thus, they cannot be found in default.

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16) The Agency did not file exceptions.

FINDINGS OF FACT – THE MERITS

1) At all times material herein, Respondent Edgewood Construction LLC was

an active domestic limited liability corporation doing business in the State of Oregon. (Ex. A3)

2) Respondent Edgewood Construction LLC employed Complainant from

sometime in September of 2015 until his termination, on December 26, 2015. (Testimony of Complainant; Ex. A4)

3) At times material, Complainant worked as part of a six-person crew, he

was paid at a rate of $10.00 per hour and worked 46 to 48 hours per week. (Testimony of Complainant)

4) At times material, Respondent Tomas Juarez-Flores and Respondent

Miguel “Doe”8 were co-owners of Edgewood Construction LLC. Respondent Juarez-Flores was also the registered agent for Respondent Edgewood Construction LLC. (Testimony of Complainant; Exs. A3, A10)

5) Complainant was hired by Respondent Roberto Garcia, who was also

Complainant’s direct supervisor. (Testimony of Complainant) 6) On or about December 15, 2015, Complainant suffered an on-the-job injury

while working for Respondents. Respondent Garcia witnessed the incident. (Testimony of Complainant; Exs. A1, A4, A6)

7) On or about December 15, 2015, during Complainant’s lunch break and

after he had suffered the injury, Respondent Garcia asked Complainant to work the rest of the day. Complainant complied. (Testimony of Complainant)

8) At the conclusion of his work day on December 15, 2015, Complainant told

Respondent Garcia that he was going to have to see a doctor. Respondent Garcia asked him to wait. Respondent Garcia told Complainant he would get him Respondent Edgewood Construction LLC’s Workers’ Compensation Insurance number. (Testimony of Complainant; Ex. A4)

9) Complainant called Respondent Garcia for at least a week, after suffering

the injury, trying to get the Workers’ Compensation information. Respondent Garcia ultimately told Complainant to “do whatever” and “figure it out.” (Testimony of Complainant)

8 At hearing, the Agency stated that it didn’t have any information regarding Respondent “Doe”’s legal

last name.

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10) On December 22, 2015, Complainant went to a healthcare facility to seek medical attention for the injury. The healthcare provider was able to determine that he had suffered a work-related injury and that he should not return to work until December 29, 2015. (Testimony of Complainant; Exs. A4, A6)

11) Complainant’s healthcare provider was able to assist him in retrieving

Respondent Edgewood Construction LLC’s Workers’ Compensation information. (Testimony Complainant; Ex. A7)

12) On or about December 23, 2015, Complainant called Respondent Garcia

and told him that he had sought medical attention. This made Respondent Garcia very angry. (Testimony of Complainant)

13) On or about December 23, 2015, Respondent Garcia obtained a copy of

the medical note, from Complainant, stating that Complainant should not return to work until December 29, 2015. (Testimony of Complainant; Ex. A4)

14) On or about the weekend of December 26, 2015, Respondent Garcia

called Complainant and told him that he needed to come to work on Monday, December 28, 2015. He told Complainant that if he didn’t show up, he would be fired. (Testimony of Complainant; Ex. A4)

15) On or about December 28, 2015, Complainant received a text message

from Respondent Garcia, informing him of his termination. Complainant texted him back and asked him why he was being fired when he couldn’t work due to a work-related injury. Respondent Garcia did not respond. (Testimony of Complainant; Ex. A4)

16) On January 29, 2016, Complainant’s Workers’ Compensation claim was

received by the Department of Consumer and Business Services. On February 11, 2016, Travelers insurance accepted Complainant’s claim. (Testimony Complainant; Exs. A6, A7)

17) Shortly thereafter, Respondent Garcia discovered that Complainant had

obtained Workers’ Compensation for his injury and, again, was angry with Complainant. (Testimony of Complainant)

18) On or about June 20, 2016, Complainant was declared medically stationary

and able to return to work. (Testimony of Complainant; Ex. A8) 19) On or about June 20, 2016, Complainant called Respondent “Doe” and told

Respondent “Doe” that he was able to return to work. Respondent “Doe” did not want to talk to Complainant and told him that he would not give Complainant any work because Complainant had received Workers’ Compensation for his work-related injury. (Testimony of Complainant)

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20) After Complainant’s termination, he struggled to pay rent and he and his family ultimately had to move out of their apartment. Complainant and his family rented a single room to live in, during this period. (Testimony of Complainant)

21) Complainant experienced extreme stress during this time. Complainant

knew that his daughter was old enough to understand that they didn’t have a place to sleep, which caused him distress. He couldn’t eat well, suffered from sleeplessness and described the time period as “very bad.” (Testimony of Complainant)

22) Despite his best efforts to find employment, Complainant could not find

work again until November of 2016. (Testimony of Complainant)

CONCLUSIONS OF LAW

1) At all times material herein, Respondents were employers, as defined in ORS 656.005(13)(a).

2) At all times material herein, Respondents were persons, as defined in

ORS 659A.001(9)(a) and respondents, as defined in ORS 659A.001(10). 3) The Agency’s attempts to serve Respondents Garcia, Juarez Flores and

“Doe” were unsuccessful and, therefore, the named individual-Respondents are not liable for aiding and abetting Respondent Edgewood Construction LLC in its unlawful conduct.

4) The actions, statements, and motivations of Respondents Garcia and

“Doe” are properly imputed to Respondent Edgewood Construction LLC. In the Matter of Leo Thomas Ryder dba Leo’s BBQ Bar & Grill, 34 BOLI 67, 73 (2015).

5) Respondents Edgewood Construction LLC unlawfully terminated

Complainant, based on his invocation of the Workers’ Compensation benefits, in violation of ORS 659A.040(1) and OAR 839-006-0117(1)(a).

6) The Commissioner of the Bureau of Labor and Industries has jurisdiction

of the persons and of the subject matter herein. ORS 659A.800 - ORS 659A.865. 7) Pursuant to ORS 659A.850, the Commissioner of the Bureau of Labor and

Industries has the authority under the facts and circumstances of this case to award Complainant back pay and money damages for emotional and mental suffering sustained and to protect the rights of Complainant and others similarly situated. The sum of money awarded and the other actions required of Respondents in the Order below are an appropriate exercise of that authority.

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OPINION

RESPONDENTS’ LIABILITY UNDER ORS 659A.040(1) AND OAR 839-006-0117(1)(a)

Respondent Edgewood Construction LLC Pursuant to ORS 659A.040(1): “It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS chapter 656[, regarding Workers’ Compensation,] or has given testimony under the provisions of those laws.”

In a case alleging a violation of ORS 659A.040(1), the agency’s prima facie case must prove: (1) Respondent was an Oregon employer at times material herein, who employed six or more persons, including Complainant; (2) Complainant applied for benefits or invoked or utilized the workers' compensation procedures in ORS chapter 656; (3) Respondent knew that Complainant applied for benefits or invoked or utilized the workers' compensation procedures in ORS chapter 656; (4) Respondent terminated Complainant; (5) There is a causal connection between Complainant’s application for benefits or invocation or utilization of the workers' compensation procedures in ORS chapter 656 and Complainant’s termination; and (6) Complainant was harmed by his termination. In the Matter of Leo Thomas Ryder dba Leo’s BBQ Bar & Grill, 34 BOLI 67, 74 (2015).

Complainant worked for Respondent Edgewood Construction LLC from September of 2015 until he was terminated on December 26, 2015. (Proposed Findings of Fact – The Merits #2) He worked as part of a six-person crew, making $10.00 per hour and worked 46 to 48 hours per week. (Proposed Findings of Fact – The Merits #3) At all times material herein, Respondent Edgewood Construction LLC was an active domestic limited liability corporation doing business in the State of Oregon. (Proposed Findings of Fact – The Merits #1) On or about December 15, 2015, Complainant suffered an on-the-job injury while working for Respondent. His direct supervisor, Respondent Garcia, witnessed the incident. (Proposed Findings of Fact – The Merits #5, #6) Despite knowing Complainant was injured, Respondent Garcia requested that Complainant work the remainder of the day; Complainant complied with Respondent Garcia’s request. (Proposed Findings of Fact – The Merits #7) At the end of the day, Complainant told Respondent Garcia that he was going to have to seek medical attention. Respondent Garcia asked Complainant to wait and told Complainant that he would give Complainant Respondent’s Workers’ Compensation insurance number. (Proposed Findings of Fact – The Merits #8) Respondent Garcia never gave Complainant the information, despite Complainant’s repeated attempts to obtain it from him. Respondent Garcia told Complainant to just “figure it out.” (Proposed Findings of Fact – The Merits #9)

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On December 22, 2015, seven days after his injury, Complainant finally sought

medical attention. Complainant’s healthcare provider determined that, based on his injury, Complainant could not return to work until December 29, 2015. (Proposed Findings of Fact – The Merits #10) The healthcare provider was also able to help Complainant retrieve Respondents’ Workers’ Compensation insurance information. (Proposed Findings of Fact – The Merits #11) On or about December 23, 2015, Complainant informed Respondent Garcia that he had sought medical attention and gave him a copy of the healthcare provider’s letter, stating that Complainant could not return to work until December 29, 2015. Respondent Garcia was very angry that Complainant sought medical attention. (Proposed Findings of Fact – The Merits #12, #13) Respondent Garcia called Complainant a few days later and told Complainant he needed to report to work on December 28, 2015 or he would be terminated. (Proposed Findings of Fact – The Merits #14) When Complainant failed to show up for work on December 28, 2015, Respondent Garcia terminated him via text message. (Proposed Findings of Fact – The Merits #15)

On or about June 20, 2016, Complainant was finally declared medically

stationary and could return to work. (Proposed Findings of Fact – The Merits #18) Complainant immediately called Respondent “Doe,” an owner of Respondent Edgewood Construction LLC, and asked him for work. Respondent “Doe” told Complainant he would not give Complainant any work because Complainant had received Workers’ Compensation for his injury. (Proposed Findings of Fact – The Merits #19) The facts of this case present clear evidence of the causal connection between Respondent Edgewood Construction LLC’s discrimination against Complainant due to Complainant’s invocation or use of Workers’ Compensation benefits. Respondent Edgewood Construction LLC is liable for violation of ORS 659A.040(1) and OAR 839-006-0117(1)(A).

Aiders and Abettors

Upon review of the record, there is insufficient evidence of service of the

Agency’s Formal Charges on Respondent Roberto Garcia, Respondent Tomas Juarez Flores and Respondent Miguel “Doe.” Therefore, they cannot be held liable as aiders and abettors.

RESPONDENT EDGEWOOD CONSTRUCTION LLC’S LIABILITY UNDER ORS

659A.043 and OAR 839-006-0130(1)(a)-(d)

Pursuant to ORS 659A.043(1), “[a] worker who has sustained a compensable injury shall be reinstated by the worker’s employer to the worker’s former position of employment upon demand for such reinstatement, if the position exists and is available and the worker is not disabled from performing the duties of such position.” This right to reinstatement, however, does not apply to:

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(A) A worker hired on a temporary basis as a replacement for an injured worker.

(B) A seasonal worker employed to perform less than six months’ work in a calendar year.

(C) A worker whose employment at the time of injury resulted from referral from a hiring hall operating pursuant to a collective bargaining agreement.

(D) A worker whose employer employs 20 or fewer workers at the time of the worker’s injury and at the time of the worker’s demand for reinstatement.

(emphasis added) ORS 659A.043(3)(b).

It is unclear from the record how many employees worked for Respondent Edgewood Construction LLC. At hearing, Complainant testified that he worked on a crew of six people. (Proposed Findings of Fact – The Merits #3) However, he had no knowledge of how many other crews there were. In a contested case hearing, “[t]he agency has the burden to establish, by a preponderance of the evidence, that respondent violated the statutes in the manner alleged.” In the Matter of Mohammad Khan, 15 BOLI 191, 207-11 (1996). Since the employer must employ 21 or more workers in order for the right of reinstatement to apply, it is an element that must be proven by the Agency; it is not something that Respondents needed to raise as an affirmative defense. Since there was insufficient evidence, at hearing, that Respondent Edgewood Construction LLC employed 21 or more workers, Respondent is not liable for the failure to reinstate Complainant, under ORS 659A.043 and OAR 839-006-0130(1)(a)-(d).

DAMAGES

Pursuant to ORS 659A.850(4)(a)(B), the Commissioner of the Bureau of Labor and Industries may issue an order requiring Respondent to perform an act or series of acts reasonably calculated to “[e]liminate the effects of the unlawful practice that the respondent is found to have engaged in, including but not limited to paying an award of actual damages suffered by the complainant and complying with injunctive or other equitable relief.” Such damages may include economic damages and emotional distress damages. In its Amended Formal Charges, issued on February 9, 2018, the Agency sought economic damages of at least $16,000.00, out of pocket expenses of at least $200.00 and damages for emotional, mental, and physical suffering of at least $30,000.00. At hearing, the Agency withdrew its request for an award of $200.00 in out-of-pocket expenses.

Economic Damages – Lost Wages

The purpose of a lost wages or “back pay” award in employment discrimination cases is to compensate a complainant for the loss of wages and benefits the complainant would have received but for the respondent’s unlawful employment practices. In the Matter of Blue Gryphon, LLC, and Flora Turnbull, 34 BOLI 216, 238 (2015). Back pay awards are calculated to make a complainant whole for injuries suffered as a result of the discrimination. Id. The forum must have a basis for

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calculating back pay before it can make an award; the forum cannot award back pay when there is a lack of evidence from which to calculate such an award. In the Matter of Maltby Biocontrol, Inc., Howard Maltby, James Bassett, and Louis Bassett, 33 BOLI 121, 158 (2014).

The evidence at hearing was that Respondents terminated Complainant on

December 26, 2015. (Proposed Findings of Fact – The Merits #2) Complainant worked 46 to 48 hours per week, at $10.00 per hour. (Proposed Findings of Fact – The Merits #3) Complainant was not able to start looking for work until he was medically stationary in June of 2016. (Proposed Findings of Fact – The Merits #18) Despite his best efforts to find employment, Complainant was not able to find new employment until November of 2016. (Proposed Findings of Fact – The Merits #22) Under Oregon law, employees who work over 40 hours per week are entitled to time and a half, for those hours over the 40 hour limit. ORS 653.261(1)(a). Even assuming Complainant worked only 46 hours per week, which was the low estimate of the hours he worked each week, Complainant earned at least $490.00 per week ((40 hours x $10.00 = $400.00) + (6 hours x $15.00 = $90.00). There were 44 work weeks between Complainant’s termination, on December 26, 2015, and the date he was able to obtain new employment, on or about November 1, 2016.9 Based on Respondents’ unlawful and discriminatory conduct, Respondent is liable for $21,560.00 in gross lost wages, to Complainant (44 weeks x $490.00).10

Emotional Distress Damages “In determining an award for emotional and mental suffering, the forum considers the type of discriminatory conduct, and the duration, frequency, and severity of the conduct. It also considers the type and duration of the mental distress and the vulnerability of the aggrieved persons. The actual amount depends on the facts presented by each aggrieved person. An aggrieved person’s testimony, if believed, is sufficient to support a claim for mental suffering damages.”

In the Matter of Melissa and Aaron Klein dba Sweetcakes by Melissa, 34 BOLI 102, 129 (2015), 289 Or. App. 507 (2017). Complainant suffered an injury at work, an experience that is not uncommon in the construction field. Despite needing medical attention, he worked through the rest of the day, at his employer’s request. Despite needing medical attention, he delayed seeking medical attention, at his employer’s request. He was subsequently fired anyway. This caused Complainant significant harm.

The time period following Complainant’s termination was extremely stressful for Complainant and he described it as “very bad.” Complainant struggled to pay rent on his residence and he ultimately had to move himself and his family out of their

9 November 1, 2016 is an approximate date. There was no evidence, at hearing, of an exact date. 10 “The Oregon Court of Appeals has previously acknowledged that the at least language in the pleadings

provides a respondent with notice that the Agency may seek a higher amount of damages at hearing.” In the Matter of Lioness Holdings, LLC, dba Tan Republic and Peter Lamka, 36 BOLI 227, 255 (2018) citing Klein v. Oregon Bureau of Labor and Industries, 289 Or App 507, 561-562 (2017).

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apartment and into a single room. Complainant knew that his daughter was old enough to understand that they didn’t have a place to sleep. This weighed heavily on him as a parent. Complainant experienced problems eating and couldn’t sleep. (Proposed Findings of Fact – The Merits #20, #21) Complainant experienced this uncertainty and stress for almost a year. His inability to provide for his spouse and daughter was a prolonged source of stress and anxiety. Further, he was forced to uproot his family, during this stressful time, in order to keep a roof over their heads. Based on the circumstances of this case, the forum finds that $50,000.00 is an appropriate award of emotional distress damages.

ORDER

A. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS 659A.850(4), and to eliminate the effects of Respondent’s violations of ORS

659A.040(1) an OAR 839-006-0117(1)(A), and as payment of the damages awarded, the Commissioner of the Bureau of Labor and Industries hereby orders Respondent Edgewood Construction LLC to deliver to the Administrative Prosecution Unit of the

Bureau of Labor and Industries, 1045 State Office Building, 800 NE Oregon Street, Portland, Oregon 97232-2180, a certified check payable to the Bureau of Labor and Industries in trust for Complainant Rafael Saldana in the amount of:

1) TWENTY-ONE THOUSAND FIVE HUNDRED AND SIXTY

DOLLARS and ZERO CENTS ($21,560.00) representing economic damages Rafael Saldana incurred as a result of Respondents’ unlawful employment practices; 2) Interest at the legal rate on the sum of TWENTY-ONE THOUSAND FIVE HUNDRED AND SIXTY DOLLARS and ZERO CENTS ($21,560.00) from the date the Final Order is issued until paid;

3) FIFTY THOUSAND DOLLARS ($50,000.00), representing damages for emotional and mental suffering Rafael Saldana experienced as a result of Respondents’ unlawful employment practices; plus, 4) Interest at the legal rate on the sum of FIFTY THOUSAND DOLLARS ($50,000.00) from the date the Final Order is issued until paid. B. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS

659A.850(4), the Commissioner of the Bureau of Labor and Industries hereby orders Respondent Edgewood Construction LLC to cease and desist from discriminating or retaliating against any employee based upon the employee’s application for benefits or invocation or use of the procedures provided for in ORS chapter 656[, regarding Workers’ Compensation,] or the giving of testimony under the provisions of those laws.

C. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS

659A.850(4), and to eliminate the effects of Respondent’s unlawful employment practice found herein, the Commissioner of the Bureau of Labor and Industries hereby orders Respondent Edgewood Construction LLC to train its management personnel on the correct interpretation and application of the Oregon Workers’ Compensation laws, either

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through a training offered by the Bureau of Labor and Industries Technical Assistance for Employers Unit or another trainer agreeable to the Agency.

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_____________________________

In the Matter of

PAMPLIN BROADCASTING-OREGON, INC. DBA

PAMPLIN MEDIA GROUP, RESPONDENT, CASE NO. 09-18 & 10-18

Final Order of Commissioner Brad Avakian

Issued November 26, 2018

_____________________________

SYNOPSIS

Respondent Pamplin Broadcasting-Oregon, Inc. dba Pamplin Media Group (“Pamplin”) employed two wage claimants to host an afternoon talk radio show at the rate of $200.00 per show. In response to the Agency’s assertion that the wage claimants were owed unpaid overtime wages, Pamplin asserted that claimants were independent contractors and, therefore, were not employees entitled to overtime wages. Pamplin argued, alternatively, that if the wage claimants were employees, then they were exempt creative professional employees. The forum rejected these defenses and ordered Pamplin to pay claimants a total of $4,073.44 in unpaid, due and owing wages. Pamplin’s failure to pay the wages was willful, and Pamplin was ordered to pay claimants a total of $10,324.80 in penalty wages pursuant to ORS 652.150. Based on Pamplin’s failure to pay overtime wages to the claimants, Pamplin was also ordered to pay the claimants a total of $10,324.80 in civil penalties pursuant to ORS 653.055(1)(b). The forum also assessed $30,700.00 in civil penalties for Pamplin’s violations of ORS 653.256(1), OAR 839-020-1010(1)(b), 653.045(1) and (2), and OAR 839-020-0083(3).

_____________________________

The above-entitled case came on regularly for hearing before Kari Furnanz, designated as Administrative Law Judge (“ALJ”) by Brad Avakian, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The hearing was held in the W. W. Gregg Hearing Room of the Oregon Bureau of Labor and Industries, located at 800 NE Oregon Street, Suite 1045, Portland, Oregon on June 11-13, 2018.

The Bureau of Labor and Industries (“BOLI” or “the Agency”) was represented by Administrative Prosecutor Adriana Ortega, an employee of the Agency. Attorney

Ankur Doshi represented Respondent Pamplin Broadcasting-Oregon, Inc. dba Pamplin Media Group (“Pamplin”).

The Agency called Claimant Mary Margaret “Margie” Boulé, Carl Wolfsohn,

Jeanne Winter, Michael Dirkx (by telephone), Compliance Specialist Emily Sitton and Michael Herrington as witnesses. Respondent called Alisha Ralph as a witness.

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The forum received into evidence: a) Administrative exhibits X1 through X51; b) Agency exhibits A1-A2, A3 (pages 4-6 only), A4-A13,1 A15-A19,

A20A, A21A, A22A, A23A and A24-A40. c) Respondent Exhibits R6-R13, R16, R18-R21, R23, R29, R31, R33-

R35, R37, R40-R41, R43A, R44-R45, R48-R49, R51-R54, R57 and R62-R63. Having fully considered the entire record in this matter, I, Christine N. Hammond,

Deputy Commissioner of the Bureau of Labor and Industries, hereby make the following Findings of Fact (Procedural and on the Merits2), Conclusions of Law, Opinion and

Order.


1) Boulé and Wolfsohn filed wage claims with the Agency's Wage and Hour Division alleging that Pamplin owed them unpaid wages and assigned their claims to the Agency. (Exs. A1, A5)

2) On May 19, 2017, Agency issued Order of Determination #17-0824

(“OOD”) in which it alleged that Claimants were employed by Pamplin. It further alleged that Pamplin owed Boulé $4,743.69 in unpaid wages, $4,461.60 in penalty wages pursuant to ORS 652.150 and $4,461.60 in civil penalties pursuant to ORS 653.055. The OOD also alleged that Pamplin owed Wolfsohn $1,728.06 in unpaid wages, $5,032.80 in ORS 652.150 penalty wages and $5,032.80 in civil penalties pursuant to ORS 653.055. Prior to issuing the OOD, BOLI’s Compliance Specialist, Emily Sitton, made a written demand of unpaid wages on May 4, 2017, and another demand was contained in an email dated May 9, 2017. Sitton’s demand also requested copies of “any and all records of the hours worked each day by” Boulé and Wolfsohn. (Exs. X2a, A18, A20A; Testimony of Sitton)

3) Pamplin’s registered agent was served with the OOD on May 19, 2017.

On June 7, 2017, Respondent filed an answer3 and request for hearing through Ankur

1 Exhibits A4 – A6 were first offered into evidence by Pamplin during cross examination of the Claimants. The Agency objected because Pamplin had not identified the documents as exhibits in its case summary. Therefore, at the time these exhibits were offered by Pamplin, the exhibits were received for the limited purpose of impeachment. The Agency later offered Exhibits A4 and A5 during the testimony of Sitton. Respondent objected on the grounds of judicial estoppel, arguing that the Agency had previously objected when Respondent offered the exhibits. In response to the ALJ’s request for legal authority in support of Pamplin’s objection, Pamplin did not provide any. The exhibits were received into evidence without any restrictions. 2 The Ultimate Findings of Fact required by OAR 839-050-0370(1)(b)(B) are subsumed within the Findings of Fact – The Merits. 3 The copy of the Pamplin’s Answer in the forum’s file references exhibits purportedly attached to the Answer. However, no exhibits were attached. Pamplin had the opportunity to introduce evidence at hearing. As Pamplin did not attempt to offer the exhibits to the Answer into evidence, the forum has neither received nor considered them in this Final Order.

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Doshi, its attorney. (Exs. A25, A27) 4) On December 7, 2017, the forum issued a Notice of Hearing in BOLI case

number 09-18 to Pamplin and the Agency for OOD #17-0824, setting the time and place of hearing for 10:00 a.m. on April 3, 2018, at BOLI’s Portland office. Together with the Notice of Hearing, the forum sent a copy of the OOD, a multi-language warning notice, a document entitled “Summary of Contested Case Rights and Procedures” containing the information required by ORS 183.413, a document entitled “Servicemembers Civil Relief Act (SCRA) Notification” and a copy of the forum’s contested case hearings rules, OAR 839-050-000 to 839-050-0445. (Exs. X2, X2b–X2f)

5) On December 8, 2017, the ALJ issued an Interim Order in Case No. 09-18

explaining the requirements for filing motions and other documents, which notified the parties that all documents needed to be submitted in writing to BOLI’s Contested Case Coordinator, and also set a telephone prehearing conference for 11:00 a.m. on Tuesday, December 19, 2017. The ALJ also issued an Interim Order requiring the parties to file case summaries which identified witnesses and exhibits two weeks in advance of the date set for hearing. (Ex. X3)

6) On December 7, 2017, the Agency issued a Notice of Intent (“NOI”) in

case #10-18, in which it announced its intent to assess a total of $33,800 in civil penalties based on Pamplin’s alleged violations of Oregon’s overtime and record retention laws. (Ex. X5)

7) Pamplin’s registered agent was served with the NOI in Case No. 10-18 on

December 7, 2017. On December 14, 2017, Respondent filed an answer and request for hearing in Case No. 10-18 through Ankur Doshi, its attorney. (Exs. X5, X5a, X6, X7a)

8) On December 15, 2017, the forum issued a Notice of Hearing in Case No.

10-18 to Pamplin and the Agency setting the time and place of hearing for 10:00 a.m. on April 3, 2018, at BOLI’s Portland office. Together with the Notice of Hearing, the forum sent a copy of the NOI, a multi-language warning notice, a document entitled “Summary of Contested Case Rights and Procedures” containing the information required by ORS 183.413, a document entitled “Servicemembers Civil Relief Act (SCRA) Notification” and a copy of the forum’s contested case hearings rules, OAR 839-050-000 to 839-050-0445. (Exs. X7, X7b–X7g)

9) On December 15, 2017, the ALJ issued an Interim Order in Case No. 10-

18 explaining the requirements for filing motions and other documents, which notified the parties that all documents needed to be submitted in writing to BOLI’s Contested Case Coordinator, and also set a telephone prehearing conference for 11:00 a.m. on Tuesday, December 19, 2017. The ALJ also issued an Interim Order requiring the parties to file case summaries which identified witnesses and exhibits two weeks in advance of the date set for hearing. (Ex. X8)

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10) On December 18, 2017, the Agency filed a motion to consolidate case nos. 09-18 and 10-18. Pamplin filed a reply on December 19, 2017, indicating it had no objection to the Agency’s motion. Under OAR 839-050-0190, the ALJ may consolidate two or more cases "when the [ALJ] determines that the cases involve common questions of law or fact." After reviewing the charging documents in both cases, the ALJ ruled that it was clear that they involved common questions of law and fact, and consolidated the cases for hearing. (Exs. X9-X11)

11) A brief prehearing conference was held on December 19, 2017; the

conference was digitally recorded. During the conference, prehearing filing deadlines were set. On December 20, 2017, the ALJ issued an Interim Order explaining the requirements for filing motions and other documents, which notified the parties that all documents needed to be submitted in writing to BOLI’s Contested Case Coordinator. The ALJ also issued an Interim Order requiring the parties to file case summaries which identified witnesses and exhibits two weeks in advance of the date set for hearing. (Ex. X12)

12) On February 2, 2018, Pamplin filed a Motion for Formal Discovery. On

February 5, 2018, the Agency filed a motion to extend its deadline to respond to the motion. In an interim order dated February 14, 2018, the ALJ ruled on the Agency’s motion for extension of time as follows:

“On February 2, 2018, Respondent filed its Motion for Formal Discovery.

Pursuant to OAR 839-050-0040(1) ‘a document is filed with the Forum either on the date the Forum receives the document, or on the date postmarked on the properly addressed document, whichever is earlier.’ A postmark is an official United States Postal Service (‘USPS’) ‘imprint applied in black ink on the address side of a stamped piece of mail. (USPS Handbook PO-408, §1-1.3 ‘Postmarks’).4 ‘A postmark indicates the location and date the Postal Service accepted custody of a mailpiece, and it cancels affixed postage.’ Id.

“USPS only postmarks certain mail depending on the type of postage

used, and may not postmark mail on the same day it is deposited in the mail.

“Postage that is postmarked by the USPS

• STANDARD POSTAGE STAMPS: Stamps purchased and affixed to mail as evidence of the payment of postage.

“Postage that might not be postmarked by the USPS

“If a party uses the following types of postage, the USPS may not postmark that mail and the envelope may not bear the official date of mailing by the USPS:

4This document is located online at: https://about.usps.com/handbooks/po408/ch1_003.htm.

https://about.usps.com/handbooks/po408/ch1_003.htm

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• METERED MAIL: Mail on which postage is printed directly on an envelope or label by a postage machine licensed by the USPS. Many private companies use these types of postage machines.

• PRE-CANCELED STAMP: Stamps sold through a private vendor,

such as stamps.com.

• AUTOMATED POSTAL CENTER (APC) STAMPS: Stamps, with or without a date, purchased from machines located within a USPS lobby.

• PERMIT IMPRINT: Pre-sorted mail used by bill pay services, such

as online home banking.

“Since Respondent’s motion did not bear a USPS postmark, it was filed February 2, 2018, when it was received by the Contested Case Coordinator. On February 5, 2018, the Agency filed a motion to extend its deadline to respond based on the date postage was purchased by Respondent. The Agency then filed its timely response to Respondent’s motion on February 9, 2018. Since the Agency’s response was timely, no extension is necessary and the Agency’s motion for extension is DENIED.”

(Exs. X13 – X15, X18)

13) In an interim order dated February 14, 2018, the ALJ issued the following ruling on Pamplin’s Motion5 for Formal Discovery:

“Pursuant to OAR 839-050-0200(1), ‘[t]he administrative law judge has the

discretion to order discovery by a participant in appropriate cases. This rule does not require the administrative law judge to authorize any discovery.’ Discovery requests must be reasonably likely to produce information that is generally relevant to the case and help facilitate a full and fair record. ‘In determining whether a request is “reasonably likely to produce information that is generally relevant to the case,” it is important to take note of the claims and defenses in the case.’ In the Matter of Frehoo, Inc. dba Stars Cabaret & Steak House, 36 BOLI Orders 43, 104 (2017).

“Respondent’s Requests for Production (RFP) are addressed as argued

by the parties: by grouping Requests 6 and 7 in analysis, and Requests 8 and 9 in analysis.

5 On February 14, 2018, Pamplin filed a Reply to Agency’s Answer to Respondent’s Motion for Formal Discovery with the Contested Case Coordinator. OAR 839-050-0150 contemplates motions, with a corresponding responsive filing by the nonmoving participant. Since replies to responses are not contemplated under BOLI’s contested case hearing rules, the ALJ did not consider Pamplin’s reply when ruling on the motion. (Exs. X18-X19)

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RESPONDENT REQUEST FOR PRODUCTION No. 6: Produce all

documents and communications (including past deleted postings, content, and communications) from claimant Carl Wolfsohn's Facebook account for the period of September 2017 until current.

RESPONDENT REQUEST FOR PRODUCTION No. 7: Produce all

documents and communications (including past deleted postings, content, and communications) from claimant Mary Margaret Boulé’s Facebook account for the period of January 2016 until current.

AGENCY RESPONSE: The Agency objects to this request for production

on the basis that it is overbroad and irrelevant.6

“In its Answers to the charging documents in this matter, Respondent asserted the affirmative defense that Claimants were at all times independent contractors and not subject to the employee wage and hour protections at issue in chapter 653. In its Motion for Formal Discovery, Respondent argues that RFP 6 and 7 are relevant to this defense as evidence that Claimants are not employees under the economic realities test.

“The Agency argued that the requested material is irrelevant because it is

not evidence of ‘complete control over the content and directions of the show,’ the request is overbroad because it seeks information outside the employment time period alleged by the Agency, the request is overbroad because it seeks information unrelated to the issue of Claimant’s alleged employment, and the Agency or Claimants may not be able to retrieve the information and they are not the custodians of the information.

“As both parties note in their filings, ‘[the economic realities] test considers

five factors to gauge the degree of the claimant’s economic dependency on the employer, with no single factor being determinative: (1) the degree of control exercised by the alleged employer; (2) the extent of the relative investment of the worker and the alleged employer; (3) the degree to which the worker’s opportunity for profit and loss is determined by the alleged employer; (4) the skill and initiative requested in performing the job; and (5) the permanency of the relationship.’ In the Matter of Geoffroy Enterprises, Inc., 15 BOLI 148, 162-65 (1996). The first factor is the degree of control exercised by the alleged employer (emphasis added). ‘Complete control’ is not required. ‘Proving the first

element of the agency’s prima facie case – that respondent employed claimant – necessarily proves that claimant was not an independent contractor. Likewise, evidence that establishes by a preponderance of the evidence that claimant was an independent contractor necessarily proves that respondent did not employ claimant.’ In the Matter of Horizon Technologies, LLC, 31 BOLI 229, 243 (2011). Respondent bears the burden of its affirmative defense and social media postings reasonably related to that defense are relevant.

6 The Agency provided identical responses for Requests 6 and 7.

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“The Agency also objects to the breadth of time covered by Respondent’s

RFPs, noting that it is lengthier than the alleged period of employment. Respondent argued in its Answers that Claimants were hired as independent contractors and remained independent contractors through the duration of Claimants’ work with Respondent. The requested information is relevant to this defense. I agree however that, as written, Respondent’s requests are overly broad in subject matter. The requested material should be limited to posts related to the KPAM program at issue in this case.

“To the extent the information is within the custody or control of the

Agency or the claimant, the Agency is directed to produce all documents and communications from claimant Carl Wolfsohn's Facebook account for the period of September 2017 to present that relate to the KPAM program at issue in this case. To the extent the information is within the custody or control of the Agency or the claimant, the Agency is directed to produce all documents and communications from claimant Mary Margaret Boulé's Facebook account for the period of January 2016 to present that relate to the KPAM program at issue in this case.

REQUEST FOR PRODUCTION No. 8: Produce all documents and

communications from claimants related to all income earned by claimants from January 2016 to current. REQUEST FOR PRODUCTION No. 9: Produce all documents from

Claimants’ tax returns and filings with the Internal Revenue Service ("IRS") from January 2016 to current. RESPONSE: The Agency objects to this request for production on the

basis that it is irrelevant.7

“Respondent asserts evidence of ‘how much Claimants’ income was composed of payments from Pamplin rather than other sources’ is relevant as further evidence of the degree of control exercised by Respondent. Respondent provides no argument to support this assertion, however. Since it is fairly common for an individual to work for more than one employer, to independently contract with more than one business, or to perform a variation of both types of work concurrently, unrelated sources of income are not relevant to the determination of a particular employment relationship with an alleged employer. The amount of income from unrelated sources is also not relevant to the determination of an alleged employment relationship.

“Respondent argues that evidence indicating the extent of Claimants’

investments into the production of the show are relevant to the third prong of the economic realities test: the degree to which the worker’s opportunity for profit and

7 The Agency provided identical responses for Requests 8 and 9.

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loss is determined by the alleged employer. I agree that any KPAM-related deductions claimed by Claimants on their taxes are relevant for this purpose. The Agency is directed to produce all records relating to any KPAM-related tax deductions taken by claimant Carl Wolfsohn for the period of January 2016 to present. The Agency is directed to produce all records relating to any KPAM-related tax deductions taken by claimant Mary Margaret Boulé for the period of January 2016 to present. The Agency is also directed to produce all records relied upon for its calculations of amounts in its May 19, 2017 Order of Determination, if not previously provided.

REQUEST FOR PRODUCTION No. 12: Produce the names, addresses,

telephone numbers, and email addresses of any and all witnesses that Agency expects to call at the Agency's hearing.

“In its February 9th response, the Agency agreed to provide the requested

information and so a ruling on this request is unnecessary.

“SUMMARY OF DISCOVERY ORDERED

1. To the extent such information is within the custody or control of the

Agency or the claimant, the Agency is directed to produce all documents and communications from claimant Carl Wolfsohn's Facebook account for the period of September 2017 to present that relate to the KPAM program at issue in this case.

2. To the extent such information is within the custody or control of the Agency or the claimant, the Agency is directed to produce all documents and communications from claimant Mary Margaret Boulé's Facebook account for the period of January 2016 to present that relate to the KPAM program at issue in this case.

3. The Agency is directed to produce all records relating to any KPAM-related tax deductions taken by claimant Carl Wolfsohn for the period of January 2016 to present.

4. The Agency is directed to produce all records relating to any KPAM-related tax deductions taken by claimant Mary Margaret Boulé for the period of January 2016 to present.

5. The Agency is directed to produce all records relied upon for its

calculations of amounts in its May 19, 2017, Order of Determination, if not previously provided.

“To the extent the documents requested in Respondents’ motion exist, the Agency is ordered to provide them by March 1, 2018. Failure to comply with this

interim order may result in sanctions as described in OAR 839-050-0200(11),

26

including the refusal to admit evidence that was not disclosed in response to this order. Pursuant to OAR 839-050-0200(8), the Agency has a continuing obligation, through the close of the hearing, to provide Respondents with any newly discovered material that is within the scope of this order.

“Respondent’s request for oral argument is DENIED.”

(Exs. X13 - X15, X18 -X19)

14) On February 14, 2018, a document signed by BOLI Commissioner Brad Avakian titled Notice to the Forum was filed. The Notice stated that the Commissioner designated and authorized Deputy Commissioner Christine N. Hammond to issue any and all Final Orders in this case. The Contested Case Coordinator served all of the parties with a copy of the Notice on September 12, 2018. (Exs. X17, X51)

15) On February 21, 2018, Pamplin moved for a postponement of the

contested case hearing and all other outstanding case deadlines by two weeks, requesting a new hearing date of April 10, 2018. Pamplin stated in its motion that the Agency had not expressed a position on postponement before Pamplin filed the motion. Given that the deadline for formal discovery motions was February 27, 2018, the forum asked the Agency by email if it had any objection to the motion, and directed the Agency to submit its response to Pamplin’s motion by February 26, 2018, at 10:00 a.m. On February 23, 2018, the Agency responded via email that it did not object to a two-week postponement of the deadline to file formal discovery motions; however, the Agency did object to a postponement of the deadline for dispositive motions. The Agency did not state its position on postponement of the hearing itself. In consideration of its objection, the ALJ requested that the Agency include information regarding the volume of the discovery that would be provided to Respondent in its filing due on February 26, 2018, at 10:00 a.m.

Because the Agency did not oppose the motion to extend the deadline for formal

discovery, the ALJ granted Pamplin’s motion and extended the deadline to March 13, 2018.

The ALJ’s ruling on Pamplin’s motion to postpone the hearing is reprinted below,

in pertinent part:

“When considering Respondent’s motion regarding postponement of the hearing itself and other case deadlines, ‘the administrative law judge will consider: (A) Whether previous postponements have been granted; (B) The timeliness of the request; (C) Whether a participant has previously indicated it was prepared to proceed; (D) Whether there is a reasonable alternative to postponement; for example, submitting a sworn statement of a witness; and (E) The date the hearing was originally scheduled to commence.’ OAR 839-050-0150(5)(a). On February 14, 2018, I issued an interim order on Respondent’s first Motion for Formal Discovery, directing the Agency to provide particular

27

discovery by March 1, 2018. “Following that order, Respondent now seeks a delay of two weeks past

the current deadline for formal discovery motions, in order to have a reasonable period of time to review any new discovery and consider if it wishes to file another motion for formal discovery.8 Assuming either party intended to file a motion for formal discovery by the new unopposed date of March 13, 2018, the motion would need to be ruled upon and any new discovery exchanged before the deadline for dispositive motions. In consideration of the Agency’s objection to postponement of the dispositive motion deadline, I asked the Agency to provide information regarding the volume of discovery to be exchanged, in its responsive filing. The Agency did not file a response. With no information as to the volume of new discovery Respondent will need to review and no argument from the Agency as to why Respondent’s motion should be denied, Respondent’s request for postponement does not seem unreasonable. This is the first request to postpone the hearing and case deadlines, it is made well in advance of the hearing, and it is not requesting an unreasonable time period for postponement. Respondent’s motion to postpone the hearing date and other case deadlines is GRANTED.”

The ALJ set a new hearing date of Tuesday, April 17, 2018, at 10:00 a.m. The dispositive motion deadline was reset to March 27, 2018, and a new case summary deadline of April 3, 2018 was set. (Exs. X21 – X23)9

16) On March 5, 2018, Pamplin filed a Motion for Sanctions, seeking sanctions against the Agency for failing to comply with the forum’s interim order of February 14, 2018. On March 12, 2018, the Agency filed a response to the motion. During the prehearing telephone conference of March 15, 2018, Respondent stated that it would withdraw the motion for sanctions if the Agency complied with the forum’s interim order of February 14, 2018. On March 23, 2018, Pamplin filed a notice stating that it withdrew its motion for sanctions. (Exs. X24-X25, X27, X35; Hearing Record)

17) On March 12, 2018, Pamplin filed a Second Motion for Formal Discovery,

seeking an interim order requiring the Agency to produce responsive material to both Respondent’s First and Second Requests for Production, as well as respond to Respondent’s First Set of Interrogatories. On March 19, 2018, the Agency filed a response to the motion. On March 23, 2018, Pamplin filed a notice stating that it withdrew its Second Motion for Formal Discovery. (Exs. X31, X33, X35)

8 Respondent’s first motion seeking formal discovery was filed before the previous deadline for such

filings: February 27, 2018. 9 Ex. A21A (emails between the ALJ and the Administrative Prosecutor on February 23, 2018) was added to the record by the ALJ while preparing the Final Order so that the record included the Agency’s communication to the forum regarding its position on Pamplin’s postponement motions. See OAR 839-050-0250(9).

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18) A brief telephone prehearing conference was held on March 15, 2018. The conference was digitally recorded. Administrative Prosecutor Adriana Ortega appeared on behalf of the Agency. Attorney Ankur Doshi appeared on behalf of Pamplin. The parties each filed motions to postpone the contested case hearing on March 12, 2018. During the prehearing conference, filing deadlines were agreed upon by all parties and the ALJ granted both motions, setting a new hearing date of Monday, June 4, 2018, at 10:00 a.m., and the following revised case deadlines:

Formal Discovery Motions: April 9, 2018 Dispositive Motions: May 14, 2018 Case Summaries: May 21, 2018 The ALJ issued an interim order on March 15, 2018, memorializing the new

hearing date and case deadlines. (Exs. (X26, X28-X30) 19) On May 8, 2018, ALJ Jennifer Gaddis issued an interim order reassigning case nos. 09-18 and 10-18 to ALJ Kari Furnanz. The interim order specified that the hearing date and case deadlines remained the same, subject to any interim orders subsequently issued by ALJ Furnanz. (Ex. X36)10

20) On May 29, 2018, the ALJ issued an interim order ruling on the Respondent’s motion for summary judgment. The ALJ’s interim order is reprinted below:

“INTRODUCTION

“On May 19, 2017, the Agency issued an Order of Determination (“OOD”). The OOD alleges that Respondent owes claimants unpaid wages, overtime and paid sick time. Respondent filed an answer and request for hearing on December 7, 2017.

“Respondent filed a motion for partial summary judgment on May 14,

2018. The Agency filed a timely response to the motion on May 21, 2018.

“SUMMARY JUDGMENT STANDARD

“A motion for summary judgment may be granted where no genuine issue as to any material fact exists and a participant is entitled to a judgment as a matter of law, as to all or any part of the proceedings. OAR 839-050-0150(4)(B). The standard for determining if a genuine issue of material fact exists and the evidentiary burden on the participants is as follows:

‘ * * * No genuine issue as to a material fact exists if, based upon the

10 All mentions of “the ALJ” prior to May 8, 2018, refer to ALJ Gaddis and all mentions after that date refer to ALJ Furnanz.

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record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment. The adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at [hearing].’

ORCP 47C.

“The record considered by the forum in deciding this motion consists of:

(1) the Agency's OOD; (2) Respondent’s Answer; (3) Respondent’s argument made in support of its motions and the exhibits submitted with Respondent’s motions, and (4) the Agency’s argument opposing Respondent’s motions, and the exhibits submitted with the Agency’s response.

“DISCUSSION

“In the OOD, the Agency asserts that Respondent is liable for unpaid wages and overtime owed to Claimants Carl Wolfsohn (“Wolfsohn”) and Mary Margaret Boulé (“Boulé”). Respondent raised two motions for partial summary judgment.

“Respondent first argues that Wolfsohn and Boulé were paid more than

the amounts the Agency claims they were owed, and that payments to them should “be properly offset from any finding of wages owed.” Respondent further contends that Wolfsohn’s wage claim should be dismissed, asserting that he was paid more than the wages allegedly owed to him. The Agency opposes the motion.

“To establish a claimant’s wage claim, the Agency must prove the

following elements by a preponderance of the evidence: 1) the respondent employed the claimant; 2) the pay rate upon which respondent and claimant agreed, if other than the minimum wage; 3) the amount and extent of work claimant performed for respondent; and 4) the claimant performed work for which he or she was not properly compensated. In the Matter of Coast 2 Coast, LLC, 35 BOLI 151, 170 (2017). Respondent’s motion essentially contends that Element 4 was not established in that claimants were properly compensated for the work performed. In support of its motion, Respondent attached two documents titled “Payment History Report” as Exhibits 4 and 5, which purportedly demonstrate amounts [paid] to Wolfsohn and Boulé. However, there was no affidavit or declaration signed by a witness who could authenticate the exhibits and explain the contents, and the documents were not self-authenticating. Accordingly, the exhibits will not be considered as evidence of wage payments made in support of a motion for summary judgment. See Portland Flagging, LLC, #14-14, 35 BOLI 11, 24 (2016). Accordingly, Respondent did not show that there was an undisputed issue of fact as to the compensation paid to Wolfsohn

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and Boulé, and Part 1 of the motion is DENIED.

“Secondly, Respondent argues that Wolfsohn and Boulé are exempt from overtime under the “professional” exemption. Respondent has the burden of presenting evidence to support the affirmative defense that Wolfsohn and Boulé were professionals who were exempt from statutory overtime requirements. In the Matter of Scott Miller, 23 BOLI 243, 259 (2002). ORS 653.020(3) states that overtime requirements do not apply to an individual engaged in professional work who: (a) Performs predominantly intellectual, managerial or creative tasks; (b) exercises discretion and independent judgment; and (c) earns a salary and is paid on a salary basis. In its response, the Agency submitted documents which dispute the facts raised in Respondent’s motion. Accordingly, the second motion for partial summary judgment is also DENIED.11

IT IS SO ORDERED.”

(Exs. X37, X38, X40, X48) The ALJ’s ruling on Respondent’s motion for summary judgment is hereby CONFIRMED.

21) The Agency and Pamplin filed their case summaries on May 21, 2018. The Agency filed an Amended Case Summary on May 29, 2018, and Respondent filed a supplemental case summary on June 6, 2018. (Exs. X39, X41-X42, X46)

22) Pamplin filed a Motion to Exclude Witnesses on May 30, 2018, arguing that it did not receive notice of several of the Agency’s witnesses until it received the Agency’s Case Summary on May 29, 2018. Pamplin further argued that it had previously requested the names of these witnesses with discovery requests and the Agency did not identify these witnesses. Pamplin asserted that it needed additional time to prepare to cross examine these witnesses. The Agency filed a response objecting to the motion on May 31, 2018.

A telephone prehearing conference was held on June 1, 2018, to discuss the

motion. Administrative Prosecutor Adriana Ortega appeared on behalf of the Agency. Attorney Ankur Doshi appeared on behalf of Respondent. The discussion with the parties included information about their availability for hearing during other dates in June 2018, which could provide Pamplin with additional time to prepare for hearing in light of the recently disclosed witnesses. See OAR 839-050-0200(11).

The ALJ rescheduled the hearing to begin on June 11, 2018, at 9:00 a.m., a date

that all parties indicated they were available, and denied Pamplin’s motion to exclude witnesses. (Exs. X43-X45)

11 Respondent also argued that Wolfsohn and Boulé were exempt from overtime because they were paid on a fee basis. However, because there is an issue of fact as to whether they performed work that is professional in nature, it is not necessary, for purposes of this motion, to examine whether they were paid on a fee or salary basis.

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23) Pamplin’s Supplemental Case Summary filed on June 6, 2018, included additional exhibits that were not submitted with its original Case Summary. Two of those new exhibits were labeled with the exact same exhibit numbers as exhibits identified in the original case summary (Exs. R42 and R43). The Supplemental Case Summary stated that Pamplin intended to replace the previously filed Exs. R42 and R43. To avoid confusion in the contested case record, the ALJ entered an interim order on June 7, 2018, informing the parties that the forum would relabel the versions filed with the Supplemental Case Summary as R42A and R43A, and that at the hearing, Pamplin could withdraw the previously submitted R42 and R43. The parties were further instructed that any exhibits submitted from that point forward must be identified with a new number not previously used on any prior exhibit filed with the forum. (Exs. X46-X47)

24) At the start of hearing, pursuant to ORS 183.415(7), the ALJ orally

informed the participants of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing. (Hearing Record)

25) Pamplin called KPAM Program Director Alisha Ralph as both a lay and

expert witness. Pamplin moved to have the forum admit Ralph as an expert as to how radio stations operate. The Agency objected, arguing that expert testimony was not necessary. Pamplin’s counsel argued that expert testimony would be helpful to understand that there are certain aspects of radio that are federally regulated. During the hearing, the ALJ took Pamplin’s motion under advisement. The forum hereby DENIES Pamplin’s motion and does not consider Ralph’s testimony to be expert opinion under OEC 702.

However, Ralph’s testimony as a lay witness that was “rationally based” on her

own “perception” and “[h]elpful to a clear understanding of [her] testimony or the determination of a fact in issue” was considered by the forum. See OEC 701.12

26) The ALJ notified the parties during the hearing that the record should be

supplemented to include a recording of an episode of “The Margie and Carl” radio show hosted by Claimants in this case. See OAR 839-050-0250(9). The ALJ and the parties discussed the time needed by Pamplin to locate the recordings, when Pamplin could produce the recordings to the Agency and the time needed by the parties to identify an episode that was representative of a typical day on the show. The ALJ ruled that Pamplin must provide sample recordings to the Agency on or before June 21, 2018. The ALJ also encouraged the parties to stipulate that one episode was representative of a typical “Margie and Carl” show and to file a recording of that episode with BOLI’s Contested Case Coordinator no later than June 29, 2018. If the parties were unable to agree on one particular episode, then each party could designate one episode to file with the forum no later than June 29, 2018. (Ex. X49)

12 Although the Agency objected to the motion to declare Ralph as an expert witness, it did not object to most questions regarding federal regulations that govern the operation of radio stations. Accordingly, it was not necessary for the forum to determine whether her testimony provided any “scientific, technical or other specialized knowledge” that would assist the forum. See OEC 702.

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27) On June 28, 2018, Pamplin submitted a letter and digital copy of “The

Margie and Carl” radio program for filing with the forum, and stated that both parties agreed to the submission of that particular radio program, which aired on December 21, 2016. (Exs. X49 (letter), ALJ1(thumb drive with digital recordings))

28) The ALJ issued a proposed order on September 24, 2018, that notified the

participants they were entitled to file exceptions to the proposed order within 10 days of its issuance. The Agency filed its exceptions on October 4, 2018, and Respondent filed its exceptions on October 1, 2018. The exceptions are addressed following the Opinion section of the Final Order.


1) At all times material herein, Pamplin was an active Washington corporation authorized to do business in Oregon. Pamplin operated KPAM, an Oregon radio station. Pamplin had a license from the Federal Communications Commission (“FCC”) to broadcast KPAM on the 860 AM radio frequency. At all material times, Pamplin employed 10 or more people and was subject to the Oregon Sick Time law, under ORS chapter 653. (Exs. A2, A3, A22, A27 R51; Testimony of Ralph)

2) Pamplin employed Boulé and Wolfsohn to host an afternoon talk radio show from 3:00 – 6:00 p.m. on KPAM at the rate of $200 per show. They were told that the rate of pay was not negotiable. Boulé started work on April 6, 2016, filling in for other hosts when they were unavailable. Wolfsohn started work on October 24, 2016, as a fill-in host. Boulé and Wolfsohn began hosting their own radio program, “The Margie and Carl Show,” together on November 9, 2016. The show focused on news and current events. Pamplin terminated Boulé and Wolfsohn on March 6, 2017. (Exs. A10, A13, A32; Testimony of Boulé, Dirkx, Ralph, Wolfsohn)

3) Prior to working for Pamplin, Wolfsohn had 10 years of radio experience,

which included previously hosting his own show. He also had performed as a standup comedian. Boulé had many years of experience as a host of television news programs in the Portland area and previously wrote a newspaper column for the Oregonian newspaper. (Testimony of Boulé, Wolfsohn; Exs. R12, R13)

4) KPAM’s Program Director Michael Dirkx hired Boulé and Wolfsohn. After

Dirkx’s employment ended, Alisha Ralph became the Program Director. (Testimony of Dirkx, Ralph, Boulé, Wolfsohn)

5) On July 9, 2016, Boulé signed a document titled “Pamplin Broadcasting –

Oregon, Inc., Independent Contractor Agreement.” Wolfsohn signed a copy of the same document on October 17, 2016. Both documents included the following provisions:

“* * * WHEREAS, KPAM is in the radio broadcast business; and

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“WHEREAS, Contractor13 has agreed to perform independent contract work for KPAM; “NOW, THEREFORE, the parties agree as follows: “1. Services. During the term of this Agreement, Contractor agrees to provide

occasional services as a fill-in radio show host. “2. Term. This Agreement shall commence upon execution by both parties and

shall expire at any time, upon giving the other party a 30-day prior written notice of termination. “3. Consideration. KPAM shall pay Contractor $200.00 for the Services.

Contractor shall invoice KPAM for the Services provided during the previous month and KPAM shall pay the Consideration within the next 30 days. “4. Expenses. During the term of this Agreement, Contractor shall be

responsible for all expenses associated with the Services provided, including without limitation Contractor’s office location, mileage, travel expenses to and from work sites, meals, lodging, office supplies, phones, computers, faxes, business cards, and Contractor’s employees, subcontractors and subagents. “5. Independent Contractor. Nothing herein shall be construed to create a joint

venture or an employer-employee relationship between the parties. The Consideration set forth above shall be the sole payment due for the Services provided under the Agreement. It is understood that there will be no withholding of any amounts for payment of taxes from the Consideration paid to Contractor and that Contractor will be solely responsible to pay all applicable taxes from said Consideration, including payments owed to Contractor’s employees, subcontractors, and subagents. “* * * “8. Competent Work. All work will be done in a competent fashion in

accordance with applicable standards of the profession. * * * *”

(Exs. R6, R7; Testimony of Boulé, Wolfsohn)

6) Dirkx told Boulé and Wolfsohn that they needed to provide funny, interesting and original content. Each show required a significant amount of off-air preparation prior to the show. Boulé and Wolfsohn emailed each other and the show’s producer, Michael Herrington, to discuss the topics that they might cover each day. Herrington worked collaboratively with Claimants in suggesting show content and guests. They needed to research topics sufficiently so that they sounded spontaneous in their discussions. Wolfsohn recorded a segment titled “Day in History” that he had

13 Boulé and Wolfsohn are each identified as the “Contractor” in their respective agreements.

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performed on another radio show in the past. 7) The segments in the three-hour radio show were outlined in the “show

clock,” the schedule that dictated what type of content filled each minute of the show. For example, there was a sports segment with the Portland Winterhawks announcer, Ron Callan, and a technology segment once a week featuring another KPAM radio host. There was also a news quiz. All of the content that went on the air was discussed and agreed upon by Herrington, Wolfsohn and Boulé. (Testimony of Herrington, Wolfsohn, Boulé, Ralph)

8) Pamplin requested, but did not require, Boulé and Wolfsohn to work with

Westwood One network news reporters when conducting interviews about breaking news stories. For local news, Pamplin encouraged them to use Pamplin print news reporters to cross market the Pamplin publications. The Portland Tribune reporters were the priority for local news. (Testimony of Wolfsohn, Boulé)

9) Claimants were required to attend staff meetings. In staff meetings,

Program Directors Dirkx and Ralph provided input as to the tone, tenor and content of the show. KPAM informed Boulé and Wolfsohn to be evenhanded when discussing political issues because the listeners included both liberal and conservative voters. (Testimony of Wolfsohn, Boulé)

10) Pamplin asked Boulé and Wolfsohn to help with various projects that

KPAM participated in. For example, they received an email requesting that they participate in a positioning project to market KPAM. The station also asked Boulé and Wolfsohn to assist with Operation Santa, a holiday fund-raiser for veterans. During Operation Santa Week, Boulé and Wolfsohn each hosted their own three-hour segment, instead of their usual radio show. (Testimony of Wolfsohn, Boulé; Exs. A33, A34)

11) Pamplin provided Boulé and Wolfsohn with cubicles, desks, business

cards, computers and printers to use while at the studio, email addresses, telephones, office supplies and studio equipment. Boulé and Wolfsohn used their own personal headphones. Boulé and Wolfsohn used their own computers while working from home. Pamplin created a logo for “The Margie and Carl Show.” Pamplin arranged for professional pictures to be taken of Boulé and Wolfsohn. Eric Jensen, a Pamplin employee, created the “open” for “The Margie and Carl Show” that was played at the beginning of each show. Pamplin offered to pay for hotel rooms for Claimants and other Pamplin workers to stay in during snow storms so they could get to the studio to host the show, and paid for a hotel for Boulé after she accepted the offer. KPAM created the Facebook page for “The Margie and Carl Show.” (Testimony of Wolfsohn, Boulé; Exs. A33, A34)

12) Claimants and other radio hosts at KPAM were permitted to take on other

paying work, but Boulé and Wolfsohn did not do so. (Testimony of Wolfsohn, Boulé) 13) Claimants received separate talent fees for endorsements and

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sponsorships. Those fees were paid to KPAM by sponsors and, in turn, Pamplin issued checks to Claimants for those fees. (Testimony of Wolfsohn, Boulé)

14) Boulé performed work for Pamplin on the following days:

Week ending

Monday Hours Worked

Tuesday Hours Worked

Wednesday Hours Worked

Thursday Hours Worked

Friday Hours Worked

4/9/16 10.5 10.5 10.5

4/16/16 10.5 10.5 10.5

4/30/16 10.5 10.5

5/7/16 10.5 10.5 10.5

5/14/16 10.5 10.5 10.5 10.5 10.5

5/21/16 10.5 10.5 10.5 10.5 10.5

5/28/16 10.5 10.5 10.5 10.5

6/4/16 10.5 10.5 10.5 10.5

6/11/16 10.5 10.5 10.5 10.5 10.5

6/18/16 10.5 10.5 10.5 10.5 10.5

6/25/16 10.5 10.5 10.5 10.5 10.5

7/2/16 10.5 10.5 10.5 10.5

7/9/16 10.5 10.5 10.5 10.5

7/16/16 10.5 10.5 10.5 10.5 10.5

7/23/16 10.5 10.5 10.5 10.5 10.5

7/30/16 10.5 10.5 10.5 10.5 10.5

10/29/16 10.5 10.5

11/12/16 10.5 10.5 10.5 10.5 10.5

11/19/16 10.5 10.5 10.5 10.5 10.5

11/26/16 10.5 10.5 10.5

12/3/16 10.5 10.5 10.5 10.5 10.5

12/10/16 10.5 10.5 10.5 10.5 10.5

12/17/16 10.5 10.5 10.5 10.5 10.5

12/24/16 10.5 10.5 10.5 10.5 10.5

12/31/16

1/7/17 10.5 10.5 10.5 10.5

1/14/17 10.5 10.5 10.5 10.5 10.5

1/21/17 10.5 10.5 10.5 10.5 10.5

1/28/17 10.5 10.5 10.5 10.5 10.5

2/4/17 10.5 10.5 10.5 10.5

2/11/17 10.5 10.5 10.5 10.5 10.5

2/18/17 10.5 10.5 10.5 10.5 10.5

2/25/17 10.5 10.5 10.5 10.5

3/4/17 10.5 10.5 10.5 10.5 10.5

3/11/17 10.5

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She was paid a total of $29,200 in wages. (Exs. A13, A39, R9; Testimony of Boulé, Sitton)

15) Wolfsohn performed work for Pamplin on the following days:

Week ending

Sunday Hours Worked

Monday Hours Worked

Tuesday Hours Worked

Wednesday Hours Worked

Thursday Hours Worked

Friday Hours Worked

Saturday Hours Worked

10/29/16 10 10 10 1

11/5/16 2 10 10 10 10 10 2

11/12/16 2 10 10 10 10 10 1

11/19/16 2 10 10 10 10 10 1

11/26/16 1 10 10 10

12/3/16 2 10 10 10 10 10 2

12/10/16 2 10 10 10 10 1

12/17/16 2 10 10 10 10 10 2

12/24/16 2 10 10 10 10 10 2

12/31/16 10 10 10 10 1

1/7/17 10 10 10 10 2

1/14/17 1 10 10 0 10 10 2

1/21/17 2 10 10 10 10 10 1

1/28/17 2 10 10 10 10 10 2

2/4/17 2 10 10 10 10 10 2

2/11/17 2 10 10 10 10 10 1

2/18/17 2 10 10 10 10 10 2

2/25/17 1 10 10 10 10 10 1

3/4/17 2 10 10 10 10 10 2

3/11/17 1 10

He was paid a total of $17,600 in wages. (Exs. A10, A40, R11; Testimony of Wolfsohn, Sitton)

16) Pamplin did not record the hours worked by Claimants. (Entire Record) Credibility Findings 17) Boulé, Herrington and Winter were credible witnesses. (Testimony of

Boulé, Herrington, Winter) 18) During Wolfsohn’s cross examination, he frequently interjected and

supplied information that was not in response to questions. However, when responding to questions, he was credible. Accordingly, in this Final Order the forum considers the testimony he provided in response to questions, but not the extraneous, unresponsive testimony he offered. (Testimony of Wolfsohn)

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19) Sitton was a credible witness. However, the information used to calculate wages in Exhibits A39 and A40 was sometimes slightly different than the exhibits and the testimony provided by witnesses. Accordingly, the forum’s calculations are based on the credible testimony and documents, rather than the conclusions in Sitton’s spreadsheets. For example, Boulé testified that she generally began working at 6:00 a.m. from home and concluded her day in the office at 6:00 p.m. From approximately 10:30 to noon, Boulé showered, commuted to work and ate her lunch. Therefore, the forum concludes that Boulé worked 10.5 hours per day, instead of 11.6 hours per day as reflected in Exhibit A39. Additionally, in Boulé’s BOLI interview, she stated that she “never had to work on the weekend.” Accordingly, the forum did not include any weekend hours in its calculations of the hours Boulé worked. (Ex. A6; Testimony of Sitton, Boulé)

20) There was a possibility that Dirkx could have been biased against Pamplin due to his termination of employment. However, he testified in a straightforward manner and admitted when he did not recall exact details. Accordingly, the forum concludes that he was a credible witness. (Testimony of Dirkx)

21) During Ralph’s testimony, she admitted that she did not have personal knowledge of many facts regarding Claimants’ employment. Additionally, her testimony that Claimants did not have to cooperate or comply with requests from management was not logical or credible. More specifically, Ralph was asked about numerous requests Pamplin employees made to Claimants including, but not limited to, an invitation to a seminar, participating in a sponsor party for Operation Santa, hosting of the Houseful of Dreams Contest, the reading of liner notes provided to them by station employees and participation in other station events. In response to the questions about these events, Ralph stated that Claimants’ participation was purely optional. The forum notes that a part of any job is to cooperate with the people with whom one works, and does not find it credible that Claimants would feel that they could disregard every request made of them by station managers and co-workers. Accordingly, the forum only credited Ralph’s testimony when it was consistent with other credible evidence in the record.

CONCLUSIONS OF LAW

1) At all times material herein, Pamplin was a corporation doing business in Oregon that employed Boulé and Wolfsohn. ORS 652.310.

2) BOLI’s Deputy Commissioner has jurisdiction over the subject matter and

Pamplin herein. ORS 652.330, ORS 652.332, ORS 653.040, ORS 651.060, ORS 183.411; Exs. X17, X51.

3) Pamplin owes Boulé $2,345.91 in unpaid, due and owing wages. ORS 652.140.

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4) Pamplin’s failure to pay Boulé all unpaid, due and owing wages after Pamplin terminated Boulé’s employment was willful and Boulé is entitled to $5,270.40 in penalty wages. ORS 652.150(1).

5) Boulé was not paid overtime wages that she earned and she is entitled to

civil penalties of $5,270.40 pursuant to ORS 653.055(1)(b). 6) Pamplin owes Wolfsohn $1,727.53 in unpaid, due and owing wages. ORS

652.140. 7) Pamplin’s failure to pay Wolfsohn all unpaid, due and owing wages after

Pamplin terminated Wolfsohn’s employment was willful and Wolfsohn is entitled to $5,054.40 in penalty wages. ORS 652.150(1).

8) Wolfsohn was not paid overtime wages that he earned and he is entitled

to civil penalties of $5,054.40 pursuant to ORS 653.055(1)(b). 9) The Deputy Commissioner has the authority to assess civil penalties for

violations of ORS 653.261(1) and OAR 839-020-0030(1). The imposition of $2,000 in civil penalties against Pamplin is an appropriate exercise of the Deputy Commissioner’s authority. ORS 653.256(1); OAR 839-020-1010(2).

10) The Deputy Commissioner has the authority to assess civil penalties for

violations of ORS 653.045(1) and OAR 839-020-0080(1). The imposition of $26,700.00 in civil penalties against Pamplin is an appropriate exercise of the Deputy Commissioner’s authority. ORS 653.256(1); OAR 839-020-1010(2).

11) The Deputy Commissioner has the authority to assess civil penalties for

violations of ORS 653.045(2) and OAR 839-020-0083(1). The imposition of $2,000.00 in civil penalties against Pamplin is an appropriate exercise of the Deputy Commissioner’s authority. ORS 653.256(1); OAR 839-020-1010(2).

12) Under the facts and circumstances of this record, and according to the

applicable law, BOLI’s Deputy Commissioner has the authority to order Pamplin to pay Boulé and Wolfsohn their earned, unpaid, due and payable wages and penalty wages, in addition to interest on all sums until paid, plus a civil penalty based on Pamplin’s failure to pay them all earned overtime wages. ORS 652.332, ORS 653.055.

OPINION

To establish Claimants’ wage claims, the Agency must prove the following elements by a preponderance of the evidence: 1) Pamplin employed Claimants; 2) the pay rate upon which Pamplin and Claimants agreed, if other than the minimum wage; 3) the amount and extent of work Claimants performed for Pamplin; and 4) Claimants performed work for which they not properly compensated. In the Matter of Coast 2 Coast, LLC, 35 BOLI 151, 170 (2017).

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PAMPLIN EMPLOYED CLAIMANTS

General Definition of Employ Under Oregon law, “employ” means “to suffer or permit to work.” ORS

653.010(2). A person is an “employee” of a business if the business “employs,” in that it “suffer[s] or permit[s]” the person to work. In the Matter of Susan C. Steves, 32 BOLI 43, 53 (2012). In this case, the Agency has established that Pamplin suffered or permitted Claimants to work by hosting a radio show.

Pamplin’s Affirmative Defense

In its answers to the OOD and NOI, Pamplin denied owing wages to Boulé and Wolfsohn, asserting that they were “independent contractors and therefore ineligible to file a wage claim.” Pamplin has the burden of proving that affirmative defense by a preponderance of the evidence in order to prevail. In the Matter of C.S.R.T., LLC, and Robert P. Sabo, 33 BOLI 263, 269 (2014). Pamplin relies on the independent contractor agreements signed by Claimants in support of this defense. However, the existence of these agreements is not controlling; instead the forum looks at the totality of the circumstances to determine the actual working relationship. See In the Matter of Mark A. Frizzell, 31 BOLI 178, 199 (2011); In the Matter of Forestry Action Committee, 30 BOLI 63, 75 (2008). In particular, in this case, many of the provisions in the independent contractor agreements were not followed by the parties and the terms did not accurately reflect how Claimants performed their work. For example, the “Expenses” provision in the agreements sets forth a number of office expenses that Claimants were supposed to be paying. However, in reality, Pamplin provided Claimants with supplies and paid for office expenses such as telephones and business cards.

In evaluating Pamplin’s affirmative defense, the forum applies an “economic

realities” test to distinguish an employee from an independent contractor under Oregon’s minimum wage and wage collection laws. The degree of economic dependency in any given case is determined by analyzing the facts presented in light of the following six factors, with no one factor being dispositive: (1) The degree of control exercised by the alleged employer; (2) The extent of the relative investments of the worker and alleged employer; (3) The degree to which the worker’s opportunity for profit and loss is determined by the alleged employer; (4) The skill and initiative required in performing the job; (5) The permanency of the relationship; and (6) whether the service performed was an integral part of Respondent’s business. See, e.g., Cejas Commercial Interiors, Inc. v. Torres-Lizama, 260 Or App 87, 106, 316 P3d 389 (2013); In the Matter of C.S.R.T., LLC, and Robert P. Sabo, 33 BOLI at 269. Following is a discussion of the facts pertinent to each of these categories.

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1. Degree of Control Exercised by Pamplin

The following facts illustrate the amount of control Pamplin exercised over Claimants’ work:

Pamplin requested, but did not require, Boulé and Wolfsohn to work with Westwood One network reporters when conducting interviews about breaking news stories. For local news, Pamplin encouraged them to use Pamplin print news reporters in order to cross market the publications. The Portland Tribune reporters were the priority for local news, sometimes other sources.

The segments in the three-hour radio show were proscribed by the “show clock” that dictated what type of content filled in each minute of the show. For example, there was a sports segment with Portland Winterhawks announcer Ron Callan, and a technology segment once a week featuring another KPAM radio host. There was also a news quiz. All of the content that went on the air was discussed and agreed upon by Herrington, Wolfsohn and Boulé.

Claimants were required to attend staff meetings.

Boulé and Wolfsohn received an email requesting that they participate in a positioning project to market KPAM.

Dirkx told Claimants that the content on the show must be “interesting, entertaining, and relevant.

In staff meetings, program directors Dirkx and Ralph provided input as to the tone, tenor and content of the show.

The show’s producer, Herrington, worked collaboratively with Claimants in suggesting show content and guests.

KPAM informed Boulé and Wolfsohn to be evenhanded when discussing political issues because the listeners included both liberal and conservative voters.

The station asked Boulé and Wolfsohn to assist with Operation Santa, a holiday fund-raiser for veterans. Boulé and Wolfsohn each hosted their own three-hour segment, instead of their usual radio show. While these facts show that there was extensive collaboration on the content of

the show, the facts lean in favor of an employment relationship due to the structure, framework and guidance provided by Pamplin management.

2. Extent of Relative Investments of Boulé/Wolfsohn and Pamplin

The investments made by Pamplin and/or Boulé and Wolfsohn included:

Pamplin provided Boulé and Wolfsohn with cubicles, desks, business cards, computers and printers to use while at the studio, email addresses, telephones, office supplies and the use of studio equipment.

Boulé and Wolfsohn used their own personal headphones.

Boulé and Wolfsohn used their own computers while working from home.

Pamplin created a logo for “The Margie and Carl Show.”

Pamplin arranged for professional pictures to be taken of Boulé and Wolfsohn.

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Eric Jensen, a Pamplin employee, created the “open” for “The Margie and Carl Show” that was played at the beginning of each show.

Pamplin offered to pay for hotel rooms for both Claimants to stay in during snow storms so they could get to the studio to host the show, and paid for a hotel for Boulé after she accepted the offer. KPAM created the Facebook page for “The Margie and Carl Show.”

I. These facts demonstrate that Pamplin made the vast majority of the investments

needed for Boulé and Wolfsohn to do their work as radio show hosts. 3. Degree to Which Pamplin Determined Profit and Loss

When Pamplin approached Boulé and Wolfsohn to host a radio show, they were each informed that they would be paid $200 per show and that the amount was not negotiable. Claimants and other radio hosts at KPAM were permitted to take on other paying work, but Boulé and Wolfsohn did not do so. Claimants received separate talent fees for endorsements and sponsorships. Those fees were paid to the radio station by sponsors and, in turn, Pamplin issued checks to Claimants for those fees. While Claimants had some opportunity to earn extra money with outside work and endorsements, the record shows that the bulk of their pay came in the form of the payments they received for hosting the show.

4. Skill and Initiative Required to Perform the Job

Boulé and Wolfsohn understood that they needed to provide funny, interesting and original content. Each show required a significant amount of off-air preparation prior to the show. They emailed each other and the show’s producers to discuss the topics that they might cover each day. They needed to research topics sufficiently so that they sounded spontaneous in their discussions. Wolfsohn recorded a segment titled “Day in History” that he had performed on another radio show in the past. Wolfsohn had 10 years of radio experience, which included previously hosting his own show. Boulé had many years of experience appearing on television and writing a newspaper column. All of these facts demonstrate their extensive experience in their field. However, when analyzing the “skill and initiative” component of the independent contractor analysis, the forum has focused on whether a worker’s income stream was dependent upon that person’s initiative. See In the Matter of Horizon Technologies, LLC, 31 BOLI 229, 250-51. In this case, although Claimants’ previous media experience was useful to them in knowing how to prepare for each day’s show, they always made $200 per show. They could not use their “initiative” to generate more wage income for themselves. Accordingly, this factor leans in favor of an employer/employee relationship.

5. Permanency of the Relationship

Claimants were initially hired to fill in for other hosts who were away due to

illness or on vacation. However, they transitioned into hosting their own radio show.

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Additionally, Claimants had several discussions with Pamplin management about entering into a permanent contract with a salary and benefits. Based on these discussions, up until the time of their termination, Claimants understood and believed Pamplin would be permanently replacing the previous radio show with “The Margie and Carl Show.”

6. Whether the Work Performed Was an Integral Part of Pamplin’s Business

Pamplin operated a radio station pursuant to a license from the FCC and, thus, was obligated to broadcast radio content throughout the day. As radio show hosts, Claimants provided the content that was integral to Pamplin’s business.14

7. Conclusion

The forum concludes that the majority of factors weigh in favor of an

employer/employee relationship. Accordingly, Pamplin did not sustain its burden of proving that Claimants were independent contractors and the forum rejects this affirmative defense.

CLAIMANTS ARE ENTITLED TO UNPAID OVERTIME WAGES Analysis of the Claim for Overtime Wages

Employees are entitled to payment at the rate of one and one-half times the regular rate of pay for each hour worked over 40 hours in a workweek. ORS 653.261(1).

As stated in the previous section, the forum concludes that Pamplin employed Boulé and Wolfsohn. They were paid at the rate of $200 per show. (See Finding of Fact – the Merits, #2) Because they were compensated at the rate of $200 per show, Boulé and Wolfsohn were paid under a piece-rate arrangement.15 When an employee is paid on a piece-rate basis, their regular hourly rate of pay is determined by adding their total earnings for the workweek and dividing the sum by the number of hours worked in the week. OAR 839-020-0030(3)(b)(A). Commissions, bonuses, tips or similar benefits are not included in the calculation of “total earnings” for the workweek. Id. Once the hourly rate is determined, any hours worked over 40 hours per week are multiplied by one-half of the hourly rate to determine the additional amount of overtime due. See, e.g. OAR 839-020-0030(3)(b)(B) (“For example, an employee who has earned $500 during a 50 hour workweek must be paid an additional sum of $50 for the ten overtime hours, or a

14 In its closing argument, Pamplin argued that Claimants’ radio show hosting was not essential to its business because Pamplin could have arranged for a syndicated program to fill the time slot. Regardless of whether that was an option, Claimants’ radio show was an integral part of KPAM’s radio news business. 15 Piecework is “[w]ork done or paid for by the piece or job.” Black's Law Dictionary 1332 (10th ed. 2014).

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total of $550 (50 hours at $10 per hour and the ten overtime hours at $5.00 per hour).”) Boulé’s Wages Using the methodology described above, the following table16 reflects the wages earned by Boulé and the wages Pamplin paid to her:

Week ending

Total hours

ST hours

OT hours

ST earn

OT Earn

Total Earned

Amount Paid

Overtime Rate

4/9/2016 31.5 31.5 0 $600.00 $0.00 $600.00

4/16/2016 31.5 31.5 0 $600.00 $0.00 $600.00

4/23/2016 0 0 0 $0.00 $0.00 $0.00

4/30/2016 21 21 0 $400.00 $0.00 $400.00

5/7/2016 31.5 31.5 0 $600.00 $0.00 $600.00 $1,600.00

5/14/2016 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

5/21/2016 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

5/28/2016 42 40 2.5 $800.00 $23.53 $823.53 $18.82 hourly x .5 x 2.5

6/4/2016 42 40 2.5 $800.00 $23.53 $823.53 $3,600.00 $18.82 hourly x .5 x 2.5

6/11/2016 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

6/18/2016 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

6/25/2016 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

7/2/2016 42 40 2.5 $800.00 $23.53 $823.53 $4,200.00 $18.82 hourly x .5 x 2.5

7/9/2016 42 40 2.5 $800.00 $23.53 $823.53 $18.82 hourly x .5 x 2.5

7/16/2016 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

7/23/2016 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

7/30/2016 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $4,000.00 $19.05 hourly x .5 x 12.5

10/29/2016 21 21 0 $400.00 $0.00 $0.00 $400.00

11/12/2016 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

11/19/2016 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

11/26/2016 31.5 31.5 0 $600.00 $0.00 $0.00

12/3/2016 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $3,200.00 $19.05 hourly x .5 x 12.5

12/10/2016 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

12/17/2016 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

12/24/2016 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

12/31/2016 0 0 0 $0.00 $0.00 $0.00 $3,400.00

1/7/2017 42 40 2.5 $800.00 $23.53 $823.53 $18.82 hourly x .5 x 2.5

1/14/2017 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

1/21/2017 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

1/28/2017 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

2/4/2017 42 40 2.5 $800.00 $23.53 $823.53 $18.82 hourly x .5 x 2.5

16 The figures in this table represents information in Finding of Fact – the Merits, #14.

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2/11/2017 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $4,200.00 $19.05 hourly x .5 x 12.5

2/18/2017 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

2/25/2017 31.5 40 2.5 $800.00 $23.53 $823.53 $3,800.00 $18.82 hourly x .5 x 2.5

3/4/2017 52.5 40 12.5 $1,000.00 $119.06 $1,119.06 $19.05 hourly x .5 x 12.5

3/11/2017 10.5 10.5 0 $200.00 $0.00 $0.00 $800.00

$29,000.00 Total straight time wages earned

$2545.91 Total overtime wages earned

$31,545.91 Total Wages Earned

$29,200.00 Total Wages Paid

$2,345.91 Total Unpaid Wages

As set forth above, Pamplin owes Boulé $2,345.91 in unpaid wages.

Wolfsohn’s Wages

The following table17 reflects the wages earned by Wolfsohn and the wages Pamplin paid to him:

Week ending

Total hours

ST hours

OT hours

ST earn

OT Earn

Total Earned

Amount Paid

Overtime Rate

10/29/2016 31 31 0 $600.00 $0.00 $600.00

11/5/2016 54 40 14 $1,000.00 $129.62 $1,129.62 $800.00 $18.51 hourly x .5 x 14

11/12/2016 53 40 13 $1,000.00 $122.64 $1,122.64 $19.86 hourly x .5 x 13

11/19/2016 53 40 13 $1,000.00 $122.64 $1,122.64 $19.86 hourly x .5 x 13

11/26/2016 31 31 0 $600.00 $0.00 $600.00

12/3/2016 54 40 14 $1,000.00 $129.62 $1,129.62 $4,000.00 $18.51 hourly x .5 x 14

12/10/2016 43 40 3 $800.00 $27.91 $827.91 $18.60 hourly x .5 x 3

12/17/2016 54 40 14 $1,000.00 $129.62 $1,129.62 $18.51 hourly x .5 x 14

12/24/2016 54 40 14 $1,000.00 $129.62 $1,129.62 $18.51 hourly x .5 x 14

12/31/2016 41 40 1 $800.00 $9.76 $809.76 $4,000.00 $19.51 hourly x .5 x 1

1/7/2017 42 40 2 $800.00 $19.05 $819.05 $19.05 hourly x .5 x 2

1/14/2017 43 40 3 $800.00 $27.91 $827.91 $18.60 hourly x .5 x 3

1/21/2017 53 40 13 $1,000.00 $122.64 $1,122.64 $19.86 hourly x .5 x 13

1/28/2017 54 40 14 $1,000.00 $129.62 $1,129.62 $18.51 hourly x .5 x 14

2/4/2017 54 40 14 $1,000.00 $129.62 $1,129.62 $4,000.00 $18.51 hourly x .5 x 14

2/11/2017 53 40 13 $1,000.00 $122.64 $1,122.64 $19.86 hourly x .5 x 13

2/18/2017 54 40 14 $1,000.00 $129.62 $1,129.62 $18.51 hourly x .5 x 14

2/25/2017 52 40 12 $1,000.00 $115.38 $1,115.38 $19.23 hourly x .5 x 12

17 The figures in this table represents information in Finding of Fact – the Merits, #15.

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3/4/2017 54 40 14 $1,000.00 $129.62 $1,129.62 $4,000.00 $18.51 hourly x .5 x 14

3/11/2017 10 10 0 $200.00 $0.00 $200.00 $800.00

$17,600.00 Total straight time wages earned

$1,727.53 Total overtime wages earned

$19,327.53 Total Wages Earned

$17,600.00 Total Wages Paid

$1,727.53 Total Unpaid Wages

As set forth above, Pamplin owes Wolfsohn $1,727.53 in unpaid overtime wages. Interest

The Agency also asserts that Boulé and Wolfsohn are entitled to interest on the amount of the unpaid wages. Although the OOD seeks interest beginning on April 1, 2017, the forum bases its award on the actual evidence at hearing, regardless of the allegations in the OOD. In the Matter of Anderson, Charlene dba Domestic Rescue, 33 BOLI 253, 261 (2014). “When an employer discharges an employee or when employment is terminated by mutual agreement, all wages earned and unpaid at the time of the discharge or termination become due and payable not later than the end of the first business day after the discharge or termination.” ORS 653.140. Accordingly, since all unpaid overtime was due the day after the termination (March 7, 2017), interest began accruing on that date.

Pamplin’s Creative Professional Affirmative Defense

In its answer, Pamplin argued that Wolfsohn and Boulé are exempt from

overtime under the “professional” exemption set forth in ORS 653.020(3). Pamplin has the burden of presenting evidence to support the affirmative defense that Wolfsohn and Boulé were professionals who were exempt from statutory overtime requirements. In the Matter of Scott Miller, 23 BOLI 243, 259 (2002). ORS 653.020(3) states that overtime requirements do not apply to an individual engaged professional work who: (a) Performs predominantly intellectual, managerial or creative tasks; (b) exercises discretion and independent judgment; and (c) earns a salary and is paid on a salary basis. As explained below, because the forum concludes that Boulé and Wolfsohn did not earn a salary and were not paid on a salary or fee basis, they were not exempt from earning overtime. Therefore, it is not necessary to address the additional elements of the professional exemption.

“‘Salary’ means a predetermined amount constituting all or part of the employee’s

compensation paid for each pay period of one week or longer.” OAR 839-020-0004(29). “‘Salary basis’ means a salary as defined in [OAR 839-020-0004(29)], which is not subject to deduction because of lack of work for part of a work week, however, deductions for absences of one day or more may be made if the employee is absent for

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other reasons.” OAR 839-020-0004(30). The Fair Labor Standards Act similarly provides that an employee is paid on a salary basis “if the employee regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 CFR § 541.601(a) (2016). Wolfsohn and Boulé each received $200 for each show they performed. If they did not perform a show on a particular day, they were not paid. Accordingly, they were not paid on a salary basis.

Pamplin alternatively argues that Boulé and Wolfsohn were exempt professional

employees paid on a fee basis. 29 CFR § 541.605(a) (2016) states: “[P]rofessional employees may be paid on a fee basis, rather than on a salary basis. An employee will be considered to be paid on a ‘fee basis’ within the meaning of these regulations if the employee is paid an agreed sum for a single job regardless of the time required for its completion. These payments resemble piecework payments with the important distinction that generally a ‘fee’ is paid for the kind of job that is unique rather than for a series of jobs repeated an indefinite number of times and for which payment on an identical basis is made over and over again. Payments based on the number of hours or days worked and not on the accomplishment of a given single task are not considered payments on a fee basis.”

(Emphasis added). In this case, the payments received by Boulé and Wolfsohn depended on the number of days they performed a show on the radio. Accordingly, they were not paid on a fee basis.

SICK LEAVE WAGES

The Agency also asserts that Boulé is entitled to unpaid sick leave wages for two days that she missed work due to illness. “Employers that employ at least 10 employees working anywhere in this state shall implement a sick time policy that allows an employee to accrue at least one hour of paid sick time for every 30 hours the employee works or 1-1/3 hours for every 40 hours the employee works.” ORS 653.606(1)(a). At all times material, Pamplin employed 10 or more people and, thus, was subject to the Oregon Sick Time Law, under ORS chapter 653. (Finding of Fact – Procedural, #1) As Pamplin’s employee, Boulé was entitled to accrue paid sick time pursuant to the Oregon Sick Law and to be compensated at her “regular rate of pay.” ORS 653.606(5)(c). There is no testimony from Boulé on the record as to what days she took sick leave. BOLI’s Compliance Specialist testified that she calculated sick leave days based on information Boulé provided to her during the investigation phase of the case. In essence, the Agency is asking the forum to award sick time wages based on hearsay evidence, which can be considered by the forum “if reliable.” OAR 839-050-0260(1). However, the documents in the record referencing Boulé’s sick leave are

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inconclusive. Some documents mention two days of sick leave, yet the handwritten wage calendar Boulé submitted to BOLI included only one day of sick leave with a notation that Boulé “guessed” as to which day was a sick day.18 Given the inconsistencies in the documents, the forum concludes that this hearsay evidence is not reliable. Accordingly, there is insufficient evidence to conclude that Pamplin owes Boulé sick leave wages.

CLAIMANTS ARE OWED PENALTY WAGES An employer is liable for penalty wages when it willfully fails to pay any wages or

compensation of any employee whose employment ceases. ORS 653.140. Willfulness does not imply or require blame, malice, perversion or moral delinquency, but only requires that that which is done or omitted is intentionally done with knowledge of what is being done and that the actor or omittor be a free agent. See, e.g., In the Matter of Giants, Inc., George T. Comalli, Hollywood Fitness, LLC, and Hollywood Fitness Center, LLC, 33 BOLI 53, 56 (2014). Penalty wages can accrue for up to 30 days after wages are due if notice is given and the wages are not paid for that full 30 days. In the Matter of Charlene Marie Anderson dba Domestic Rescue, 33 BOLI 253, 261 (2014).

In this case, Boulé and Wolfsohn credibly testified as to their work hours and also

that they communicated with the show producer and programming manager while working from home and at various hours. There was also documentary evidence showing that emails were sent by Boulé and Wolfsohn while they worked at home preparing for the show. Thus, the Agency sustained its burden of proof in establishing that Pamplin acted willfully in failing to pay them overtime wages. Furthermore, the Agency provided documentary and testimonial evidence that its investigator made a written demand of unpaid wages on May 4, 2017. (See Finding of Fact – Procedural #2) The investigator repeated the demand in an email dated May 9, 2017. Id. As well, the OOD issued on May 19, 2017, included a demand for overtime wages. Pamplin willfully failed to pay the full amount of the unpaid wages within 12 days after receiving the written notices and still has not paid them. Therefore, the forum assesses penalty wages at the maximum rate set out in ORS 652.150(1) (hourly rate x 8 hours per day x 30 days = penalty wages). Since the wages earned were based on a piece rate, “the wages will be reduced to an hourly rate for penalty computation purposes by dividing the total wages earned in the last 30 calendar days of employment by the total number of hours worked in the last 30 calendar days of employment.” OAR 839-001-0470(e).

During the last 30 days of Boulé’s employment (February 5 – March 6, 2017),

she worked 199.5 hours and earned a total of $4,380.71. Thus, her hourly rate during that period was $21.96 and she is entitled to penalty wages of $5,270.40 ($21.96 x 8 hours per day x 30 days). During the last 30 days of Wolfsohn’s employment (February 5 – March 6, 2017), he worked 223 hours and earned a total of $4,697.26. Thus, his hourly rate during that period was $21.06 and he is entitled to penalty wages of $5,054.40 ($21.06 x 8 hours per day x 30 days). Claimants are also entitled to interest

18 See Ex. A13, p. 21.

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beginning on April 6, 2018 (30 days after wages were due to be paid). See In the Matter of Anderson, Charlene dba Domestic Rescue, 33 BOLI at 261-62.

CLAIMANTS ARE OWED CIVIL PENALTIES In the OOD, the Agency requested that civil penalties be awarded to Claimants

pursuant to ORS 653.055(1)(b). That statute provides that “[a]ny employer who pays an employee less than the wages to which the employee is entitled under ORS 653.010 to 653.261 is liable to the employee affected * * * [f]or civil penalties provided in ORS 652.150.” Id. Civil penalties are calculated using the same formula as that used for calculating penalty wages. Since Boulé and Wolfsohn were not paid all wages owing to them, Boulé is entitled to a civil penalty in the amount of $5,270.40 and Wolfsohn is entitled to civil penalties in the amount of $5,054.40, plus interest.

WILLFUL FAILURE TO PAY OVERTIME In the NOI, the Agency asks the forum to impose a civil penalty of $2,000 against

Pamplin for failing to pay overtime wages, computed at $1,000 per violation, and cites several aggravating factors.

ORS 653.256(1) provides, in pertinent part: “In addition to any other penalty

provided by law, the Commissioner of the Bureau of Labor and Industries may assess a civil penalty not to exceed $1,000 against any person that willfully violates ORS 653.261 * * * or any rule adopted thereunder.” OAR 839-020-1010(1)(b) provides that “[t]he commissioner may assess a civil penalty for any of the following willful violations: * * * (b) Failure to pay overtime for all hours worked over forty (40) in a week in violation of OAR 839-020-0030.” Accordingly, the forum must determine that Pamplin’s violations were “willful” before considering how to compute an appropriate civil penalty.

In the context of Pamplin’s violations of ORS 653.261(1) and OAR 839-020-

0030, “willfully” is defined in OAR 839-020-0004(33) as follows: “‘Willfully’ means knowingly. An action is done knowingly when it is undertaken with actual knowledge of a thing to be done or omitted or action undertaken by a person who should have known the thing to be done or omitted. A person ‘should have known the thing to be done or omitted’ if the person has knowledge of facts or circumstances which, with reasonably diligent inquiry, would place the person on notice of the thing to be done or omitted to be done. A person acts willfully if the person has the means to inform himself or herself but elects not to do so. For purposes of these rules, the employer is presumed to know the requirements of ORS 653.010 to 653.261 and these rules.” As previously concluded above, Pamplin was aware of the times Claimants were

working and should have known of the amount of hours they worked, yet failed to track their hours and provide overtime compensation. Pamplin’s misclassification of Claimants as independent contractors does not show a lack of willfulness because

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employers have a duty to know the laws that regulate employment in this state. See, e.g., In the Matter of Green Thumb Maintenance & Landscape, Inc., 35 BOLI 178, 225 (2017). Therefore, the forum concludes that the violations were willful.

The forum may consider specified mitigating and aggravating circumstances

when determining the amount of any civil penalty to be assessed and cite those found to be appropriate. OAR 839-020-1020(1). In the NOI, the Agency argues that the following aggravating factors contained in OAR 839-020-1020(1) were present:

“(c) The magnitude and seriousness of the violation; “(d) Whether the employer knew or should have known of the violation; “(e) The opportunity and degree of difficulty to comply[.]”

With respect to the magnitude and seriousness of the violation, although the total dollar amount of unpaid overtime wages is arguably not excessive, the violations lasted for over five months and affected two employees. As previously concluded, the employer should have known of the violation. As well, given that Pamplin employs other individuals, it could have easily complied with the overtime laws with respect to Boulé and Wolfsohn. It is the responsibility of Pamplin to provide any mitigating evidence concerning the amount of civil penalty to be assessed. OAR 839-020-1020(1). In its answer to the NOI, Pamplin argues that “any penalty assessed should be substantially mitigated” due to the following factors:

1. “[T]he number of alleged claimants;”

2. “[T]he history of the employer taking measures to prevent or correct violations of statutes or rules;”

3. “[The] unique factors and roles that Claimants played at KPAM, that no substantive rights of an employee have been lost due to KPAM’s actions or inaction;” and

4. “[T]hat Claimants, if, as alleged were actual employees, would be subject to overtime exemptions as noted supra, and would likely have obtained the same

rate of pay as the independent contract provided.”

Factor #1 was previously considered when analyzing the aggravating circumstances above. With regard to Factor #2, if there is evidence in the record as to Pamplin “taking measures to prevent or correct violations of statutes or rules,” it was not introduced through witness testimony or otherwise brought to the attention of the forum. As to Factor #3, since the forum concluded the Claimants’ substantive rights to overtime pay were violated, Factor #3 is not a mitigating factor. Finally, as for Factor #4, the

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forum concluded that Claimants were not exempt and, thus, this is not a mitigating factor.

Considering the aggravating circumstances addressed above and the lack of

mitigating circumstances, the forum concludes that a civil penalty of $1,000 per violation is an appropriate civil penalty, for a total of $2,000 (two violations x $1,000).

FAILURE TO MAKE AND RETAIN RECORDS

In Paragraph 3 of its NOI, the Agency alleges that Pamplin willfully “failed to make and retain records of the hours worked by” Claimants as required by ORS 653.045(1) and OAR 839-050-0080(1), and seeks civil penalties of $100 per violation. ORS 653.045(1)(b) requires employers to “make and keep available to the Commissioner of the Bureau of Labor and Industries for not less than two years, a record or records containing * * * [t]he actual hours worked each week and each pay period by each employee. * * * *” OAR 839-020-0080(1)(g) similarly states that employers “must maintain and preserve payroll or other records containing” the “hours worked each workday and total hours worked each workweek” for all employees.

Claimants sent invoices to Pamplin each month reflecting the number of shows

worked that month and were each paid $200 for each day they hosted a radio show. (See Findings of Fact – the Merits, ## 2, 5) There was no evidence presented at hearing that Pamplin made and/or maintained any records reflecting the number of hours Claimants worked. Accordingly, the forum concludes that Pamplin violated ORS 653.045(1) and OAR 839-050-0080(1).

ORS 653.256 provides that the Commissioner may assess a civil penalty of not

more than $1,000 against any person who "willfully violates * * * ORS 653.045 * * * or any rule adopted thereunder.” The forum considers aggravating and mitigating circumstances set out in OAR 839-020-1020(1) when determining the amount of civil penalties. In the Matter of Abdul Rahim Ghaffari, 35 BOLI 38, 63 (2016), aff’d 289 Or App 158, 407 P3d 985 (2017). It is the employer’s responsibility to provide the commissioner with any mitigating evidence concerning the amount of civil penalties to be assessed. Id.

The Agency and Pamplin included the same aggravating and mitigating factors

that were addressed when considering the civil penalties assessed for the failure to pay overtime wages. Accordingly, for the same reasons, the forum concludes that a civil penalty of $100 per violation is an appropriate civil penalty. OAR 839-020-1010(2) provides that a civil penalty of not more than $1,000 can be levied “for any one violation.” “Each violation is a separate and distinct offense. In the case of continuing violations, each day’s continuance is a separate and distinct violation.” OAR 839-020-1000. In this case, Boulé worked 145 days and Wolfsohn worked 122 days,19 for a total of 267 days in which Pamplin failed to make and retain records of the hours they

19 Wolfsohn days of work included weekends, but there was insufficient evidence of Boulé’s weekend hours.

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worked. Accordingly, it is appropriate to assess a total of $26,700 in civil penalties (267 violations x $100).

WILLFUL FAILURE TO KEEP AVAILABLE RECORDS

In the fourth paragraph of the NOI, the Agency alleges that Pamplin “failed to keep available records of the hours worked by each employee which it was required to make and keep pursuant to ORS 653.045(2) and OAR 839-020-0083(1)-(3).” ORS 653.045(2) provides:

“Each employer shall keep the records required by [ORS 653.045(1)] open for inspection or transcription by the commissioner or the commissioner’s designee at any reasonable time.”

OAR 839-020-0083(3) provides:

“All records required to be preserved and maintained by these rules shall be made available for inspections and transcription by the Commissioner or duly authorized representative of the Commissioner.”

In its NOI, the Agency asks the forum to assess civil penalties totaling $1,000

based on the “willful” nature of Pamplin’s violations. OAR 839-020-0004(33) states:

“‘Willfully’ means knowingly. An action is done knowingly when it is undertaken with actual knowledge of a thing to be done or omitted or action undertaken by a person who should have known the thing to be done or omitted. A person ‘should have known the thing to be done or omitted’ if the person has knowledge of facts or circumstances which, with reasonably diligent inquiry, would place the person on notice of the thing to be done or omitted to be done.”

Pamplin, as an employer, had the obligation to maintain its workers’ time and

payroll records and provide them to BOLI upon request. During BOLI’s investigation, Compliance Specialist Sitton requested that Pamplin provide copies of “any and all records of the hours worked each day by” Claimants. (See Findings of Fact – Procedural, # 2) There is no evidence on the record that that any such records were ever provided to BOLI. The provision in OAR 839-020-0083(3) requiring records to “be made available” includes the requirement that those records be provided to BOLI upon request. In the Matter of Abdul Rahim Ghaffari, 35 BOLI at46-47 (“ORS 653.045(1)

describes specific records that employers must keep and maintain; ORS 653.045(2), in turn, requires employers to make those records available for inspection, with the phrase ‘available for inspection’ containing the implicit requirement that an employer provide records in a timely manner after a BOLI request for those records.”) Accordingly, the forum concludes that Pamplin violated ORS 653.045(2) and OAR 839-050-0083(3).

The Agency and Pamplin included the same aggravating and mitigating factors

that were addressed when considering the civil penalties assessed for the failure to pay

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overtime wages. Accordingly, for the same reasons, the forum concludes that a civil penalty of $1,000 per violation is an appropriate civil penalty, for a total of $2,000 (two violations x $1,000).

AGENCY’S EXCEPTIONS The Agency’s Exception regarding the sixth factor to examine in the economic realities test is GRANTED, and is reflected in the Opinion section above.20

RESPONDENT’S EXCEPTIONS Respondent’s exceptions are addressed below. I. Respondents’ Exceptions to Documents Received into Evidence

I.1. Respondent’s Exception regarding Exhibits A4, A5 and A6 is GRANTED, in part. The forum has amended Footnote 1 above to provide further detail concerning the objections and rulings regarding these exhibits. I.2. Respondent’s objections to Exhibits A33 and A34 are OVERRULED for the reasons stated by the ALJ on the record. I.3. Respondent’s objection regarding Exhibit X51 (Notice to the Forum designating the Deputy Commissioner to issue the Final Order) is OVERRULED. This is not a substantive exhibit admitted into evidence, but rather is part of the procedural history of the case. II. Respondent’s Exceptions to Proposed Findings of Fact – Procedural II.1. With this exception, Respondent asserts that Exhibits A18 and A20A do not constitute demands for unpaid wages. ORS 652.150(2)(c) states that a “written notice of nonpayment must include the estimated amount of wages or compensation alleged to be owed or an allegation of facts sufficient to estimate the amount owed.” Both Exhibits A18 and A20A contain the required information. Accordingly, this exception is OVERRULED. II.2. This exception is essentially the same as Exception I.3. It is OVERRULED for the same reason that Exception I.3 was overruled. II.3. Respondent’s Exception II. 3. is GRANTED, in part, and Finding of Fact - Procedural #16 is amended to include reference to statements made by Respondent

20 The Agency did not provide legal authority in support of its exception, but the forum notes that the Oregon Court of Appeals recognized this factor. Cejas Commercial Interiors, Inc. at 106.

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during the March 15, 2018, prehearing conference about withdrawing the motion for sanctions. II.4. Exception II.4. is OVERRULED because the record does not include information as to the reason Respondent withdrew its Second Motion for Formal Discovery. II.5. Exception II.5. is GRANTED. The forum amended Finding of Fact - Procedural #20 to correct a scrivener’s error. II.6. Exception II.6. is OVERRULED because Finding of Fact - Procedural #22 accurately explains that the ALJ postponed the hearing date to provide Respondent with additional time to prepare for hearing. III. Respondent’s Exceptions to Proposed Findings of Fact – The Merits

III.1. Exception III.1. is GRANTED, in part, to remove the sentence that begins, “KPAM named * * *.” The forum disagrees with Respondent’s characterization of the remainder of facts as set forth in Exception III.1., and, thus, the remainder of the Exception is OVERRULED. III.2. In response to Exception III.2., the forum added references to Exhibits R12 and R13, which provide details of Claimant’s professional background. Respondent also contended that Boulé’s experience as an actress should be included, but included no reference to testimony or other evidence in the record to support this fact. Accordingly, that portion of the exception is OVERRULED III.3. This exception is OVERRULED as it is unclear what relevant information Respondent seeks to add to the record that is not already stated in Findings of Fact - The Merits, ##4, 5. III.4. The forum GRANTS Exception III.4. Finding of Fact - The Merits, # 8 has been amended to remove the phrase “because they worked for the same company.” III.5. Exception III.5. is OVERRULED as testimony and numerous emails demonstrated that Claimants were asked to assist with the Operation Santa event. III.6. Exception III.6. is GRANTED, in part, as reflected in the revisions made to Finding of Fact - The Merits, # 11. III.7. Exception III.7. is GRANTED, in part, as reflected in the revisions made to Finding of Fact - The Merits, # 12. III.8. Exception III.8 is OVERRULED. Talent fees are not part of wages earned in that commissions, bonuses, tips or similar benefits are not included in the calculation of “total earnings” for the workweek. OAR 839-020-0030(3)(b)(A).

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III.9. Exception III.9. does not accurately summarize Boulé’s testimony and is OVERRULED. She testified that on one occasion, Pamplin asked her on short notice to fill in as a radio host, and that this was the “only time” that happened. There is evidence in the record that Boulé performed work in 2015, prior to the time period in which overtime wages are claimed in this case. (See, e.g., Ex. R9) Given that Boulé credibly testified as to her usual work hours and work routine during the wage claim period, the forum does not conclude that the “one time” in which she received a late notice occurred during the time period in which wages are claimed in this case. Additionally, Respondent’s recitation of the evidence as to the amount Boulé was paid for hosting radio shows is not accurate. Exhibits A13, A39 and R9 demonstrate that she was paid $29,200 for the work performed during the time period at issue in this case.21

III.10. Exception III.10 also does not accurately calculate the wages paid to Wolfsohn as reflected in the checks in Ex. R11. Respondent’s last day of work was March 6, 2017, and he earned $200 for a show he hosted that week. The additional funds in Check No. 0421368, and the checks for endorsement and/or talent fees were bonus or commission payments, not for work performed. See OAR 839-020-0030(3)(b)(A).

III.11. Exception III.11. is GRANTED. Finding of Fact – The Merits # 20 has

been revised to change the word “possibly” to “possibility.” III.12. Finding of Fact –The Merits # 21 has been revised to further describe the

forum’s conclusions regarding Ralph’s credibility. Accordingly, this exception is OVERRULED.

IV. Respondent’s Exceptions to Proposed Conclusions of Law

All of Respondent’s Exceptions to the Proposed Conclusions of Law concern the calculation of the wages owed to Claimants. For the same reasons discussed in relation to Exceptions III.9. and III.10., the Exceptions to all of the Proposed Conclusions of Law are also OVERRULED.

V. Respondent’s Exceptions to Proposed Opinion

V.1. The forum GRANTS Exception V.1.a. The section discussing “Degree of Control Exercised by Pamplin” has been amended to remove a reference to the ownership of the Portland Tribune.

Exceptions V.1.b. – e. mischaracterize the evidence on the record and are

OVERRULED.

21 Respondent may have mistakenly included checks issued to Boulé in 2015, which is outside of the time period at issue in this case, when calculating wages paid to her.

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V.2. The Exceptions listed in V.2. either mischaracterize the evidence in the

record or request the forum to insert irrelevant information, and are OVERRULED. V.3. The Exceptions listed in V.3. are GRANTED, in part, and the Opinion has

been amended to remove reference to Claimants not feeling they had time to take on other work.

V.4. Exception V.4. is OVERRULED because the Opinion acknowledges that

Complainants could earn additional talent fees, but accurately recognizes that the wages earned were $200 per show.

V.5. Exception V.5. involves Respondent’s characterization of the evidence.

The forum disagrees with Respondent’s characterization and OVERRULES this exception.

VI. Respondent’s Exceptions to Claimants’ Entitlement to Overtime Wages

This exception pertains to wage calculations and is OVERRULED for the reasons discussed in relation to Exceptions III.8., III.9. and III.10.,

VI. Respondent’s “Further Exceptions”

This exception is not “specific” as required by OAR 839-050-0380(1) and is OVERRULED.

ORDER

Case No. 09-18 (OOD)

NOW, THEREFORE, as authorized by ORS 652.332, the Deputy Commissioner of the Bureau of Labor and Industries hereby orders Respondent Pamplin Broadcasting-Oregon, Inc. dba Pamplin Media Group, to deliver to the

Administrative Prosecution Unit of the Bureau of Labor and Industries, 1045 State Office Building, 800 NE Oregon Street, Portland, Oregon 97232-2180, the following:

1) A certified check payable to the Bureau of Labor and Industries in trust for Mary Margaret Boulé in the amount of TWELVE THOUSAND EIGHT HUNDRED and EIGHTY-SIX DOLLARS AND SEVENTY-ONE CENTS ($12,886.71), less appropriate lawful deductions, representing $2,345.91 in gross earned, unpaid, due and payable wages, $5,270.40 in ORS 652.150 penalty wages and a civil penalty of $5,270.40 pursuant to ORS 653.055(1)(b), plus

Interest at the legal rate on the amount of $2,345.91 from March 7, 2017, until paid; and

Interest at the legal rate on the amount of $10,540.80 from April 6, 2017,

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until paid.

2) A certified check payable to the Bureau of Labor and Industries in trust for Carl Wolfsohn in the amount of ELEVEN THOUSAND EIGHT HUNDRED and THIRTY-SIX DOLLARS AND THIRTY-THREE CENTS ($11,836.33), less appropriate lawful deductions, representing $1,727.53 in gross earned, unpaid, due and payable wages, $5,054.40 in ORS 652.150 penalty wages and a civil penalty of $5,054.40 pursuant to ORS 653.055(1)(b), plus

Interest at the legal rate on the amount of $1,727.53 from March 7, 2017, until paid; and

Interest at the legal rate on the amount of $10,108.80 from April 6, 2017, until paid.

Case No. 10-18 (NOI)

NOW, THEREFORE, as authorized by ORS 652.332, and as payment of the penalties assessed as a result of Pamplin’s violations of ORS 653.256(1), OAR 839-020-1010(2), ORS 653.045(1) and (2), and OAR 839-020-0083(3), the Deputy Commissioner of the Bureau of Labor and Industries hereby orders Respondent Pamplin Broadcasting-Oregon, Inc. dba Pamplin Media Group, to deliver to the


A certified check payable to the Bureau of Labor and Industries in in the amount of $30,700.00, representing civil penalties assessed pursuant to the statutes identified above, plus interest at the legal rate on that sum between the date ten days after the issuance of the final order and the date Respondent Pamplin Broadcasting-Oregon, Inc. dba Pamplin Media Group complies with the Final

Order.

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_____________________________

In the Matter of ATLAS BOLT & SCREW COMPANY LLC,

RESPONDENT, CASE NOS. 13-18


Issued November 26, 2018

_____________________________

SYNOPSIS

The forum concluded that Respondent discriminated against and unlawfully terminated Complainant due to his opposition to practices forbidden under the Oregon Safe Employment Act (“OSEA”), in violation of ORS 654.062(5)(a), (b), (c), OAR 839-004-0003(1), and OAR 839-004-0016(1), (2). The forum awarded Complainant $2,045.04 in economic damages and $60,000.00 in emotional and mental suffering damages. The forum declined to award Complainant the remaining $8,154.96 in economic damages, sought by the Agency, based on a lack of evidence.

_____________________________

The above-entitled case was assigned for hearing to Jennifer Gaddis, designated as Administrative Law Judge (“ALJ”) by Brad Avakian, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The Bureau of Labor and Industries (“BOLI” or “the Agency”) was represented by Administrative Prosecutor Adriana Ortega, an employee of the Agency. Respondent was represented by Susan Lorenc and Alisha Kormondy. The contested case hearing was held on June 19, 2018 through June 21, 2018 at BOLI’s Salem office, located at 3865 Wolverine St. NE, Suite E-1, in Salem, Oregon. Complainant Douglas Olsen was present throughout the hearing; Angela Cragel was present throughout the hearing, on behalf of Respondent.

The Agency called Christian Urena, BOLI Complainant Douglas Olsen, Leslie

Brandt-Olsen, Kristopher Lee, BOLI Civil Rights Investigator Michael Mohr, Tim Howard, Don Bratcher and Angela Cragel as witnesses. Respondent called Don Bratcher and Angela Cragel as witnesses.

The forum received into evidence Administrative exhibits X1 through X45.

The forum received the following Agency exhibits: 1) A1 through A-10; 2) A12 through A-26;

3) A28; 4) A30 through A38; and

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5) X-47 through X-49. The forum also received the following Respondent exhibits: 1) R7; 2) R9 through R10;

3) R11, p. 1; and 4) R16 Having fully considered the entire record in this matter, I, Brad Avakian,

Commissioner of the Bureau of Labor and Industries, hereby make the following Findings of Fact (Procedural, On the Merits, and Ultimate1), Conclusions of Law, Opinion, and Order.


1) On May 15, 2017, Complainant filed a verified complaint (Case Number OSEMOS 170515-40622) with BOLI’s Civil Rights Division. The complaint alleged that Respondent terminated Complainant for reporting and opposing workplace health and safety hazards. (Ex. A2)

2) On August 15, 2017, the Agency’s Civil Rights Division issued a Notice of

Substantial Evidence Determination (“SED”) in which it found substantial evidence of an unlawful employment practice in that Complainant was subjected to increased scrutiny because he made protected safety reports, and that this resulted in his termination in violation of ORS 654.062. (Testimony of Mohr; Ex. 38)

3) On January 30, 2018, the forum issued a Notice of Hearing to

Respondent, the Agency and Complainant, which stated the time and place of the hearing as June 5, 2018, beginning at 9:30 a.m., at BOLI’s Salem office, located at 3865 Wolverine St NE, Building E-1, Salem, Oregon. With the Notice of Hearing, the forum also sent a copy of the Agency's Formal Charges, a document entitled “Summary of Contested Case Rights and Procedures” containing the information required by ORS 183.413, a document entitled “Servicemembers Civil Relief Act (SCRA) Notification,” a multi-language notice explaining the significance of the Notice of Hearing, and a copy of the forum’s contested case hearings rules, OAR 839-050-000 to 839-050-0445. (Exs. X2, X2a-2h)

4) The Formal Charges alleged that Respondent subjected Complainant to

different terms and conditions of work for his opposition to health and safety concerns,


Findings of Fact – The Merits.

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in violation of ORS 654.062(5)(a)(b) and (c), OAR 839-004-0003(1), and OAR 839-004-0016(1), (2); and that Respondents terminated Complainant for his opposition to health and safety concerns, in violation of ORS 654.062(5)(a)(b) and (c), OAR 839-004-0003(1), and OAR 839-004-0016(1), (2). The Formal Charges sought economic damages of at least $10,000, out-of-pocket expenses of at least $200, and damages for emotional, mental, and physical suffering in the amount of at least $70,000.00. The Formal Charges also requested that an appropriate Cease and Desist Order be entered against Respondent if it engaged in or committed any unlawful employment practices alleged in the Formal Charges, and that the forum order that it immediately stop all such unlawful practices. The Formal Charges stated that the forum’s order may include such other relief as appropriate to eliminate the effects of the unlawful practices found as to Complainant and others similarly situated. (Ex. X2a)

5) On February 12, 2018, the forum issued an Amended Notice of Hearing to

Respondent, the Agency and Complainant. The Amended Notice was sent to correct the lack of date on the Agency’s original Formal Charges and no substantive changes were made. With the Amended Notice of Hearing, the forum also sent a copy of the Agency's Amended Formal Charges (with the date correction), a document entitled “Summary of Contested Case Rights and Procedures” containing the information required by ORS 183.413, a document entitled “Servicemembers Civil Relief Act (SCRA) Notification,” a multi-language notice explaining the significance of the Notice of Hearing, and a copy of the forum’s contested case hearings rules, OAR 839-050-000 to 839-050-0445. (Exs. X3, X3a-3h)

6) On February 20, 2018, Respondent filed a Motion for Postponement of

Hearing, titled “Formal Charges” in the case caption. The filing was made by Susan Lorenc, an attorney who was not a member of the Oregon State Bar. On February 23, 2018, the forum issued an interim order notifying Ms. Lorenc that she would first need to seek admission pro hac vice prior to filing any documents on behalf of Respondent. The forum cited the relevant authority to be used as guidance in her request for admission and provided a Certificate of Compliance, to be completed and returned to the forum. (Exs. X4, X5)

7) On March 1, 2018, Ms. Lorenc filed an incomplete Certificate of

Compliance for Pro Hac Vice, Respondent’s Answer to Amended Formal Charges and Respondent’s Motion for Postponement of Hearing. On March 2, 2018, the forum issued another interim order directing Ms. Lorenc to seek admission pro hac vice, citing the relevant authority. (Exs. X6, X7, X8, X11)

8) On March 2, 2018, Respondent filed a Motion to Amend and an Amended

Answer to Amended Formal Charges. (Exs. X9, X10) 9) On March 12, 2018 Amy Pedersen, a member of the Oregon State Bar,

filed an Answer to Amended Formal Charges and a Motion for Postponement of Hearing, on behalf of Respondent. (Exs. X12, X13)

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10) On March 13, 2018, the Agency filed a Motion for Default, arguing that Respondent’s Answer was untimely. Respondent filed its Memorandum in Opposition to Agency Motion for Default on March 19, 2018. On March 23, 2018, the forum issued an interim order denying the Agency’s motion, stating:

“On March 13, 2018, the Agency filed a Motion for Default, alleging that

Respondent’s Answer was untimely. On March 19, 2018, Respondent filed a Memorandum in Opposition to Agency Motion for Default, stating it had both timely mailed and hand delivered its Answer.

“RESPONDENT’S MAILED FILING OF ITS ANSWER WAS UNTIMELY

“Pursuant to the Division 50 contested case rules, if a party is filing a

document in a BOLI contested case by mail, the date of filing is the ‘date postmarked on the properly addressed document.’ OAR 839-050-0040(1) (emphasis added). As stated in the Agency’s motion, a postmark is an official United States Postal Service (‘USPS’) ‘imprint applied in black ink on the address side of a stamped’ piece of mail. (USPS Handbook PO-408, §1-1.3 ‘Postmarks’)2 ‘A postmark indicates the location and date the Postal Service accepted custody of a mailpiece, and it cancels affixed postage.’ Id.

“USPS only postmarks certain mail depending on the type of postage

used, and may not postmark mail on the same day deposited in the mail.

“Postage that is postmarked by the USPS

“The following type of postage is postmarked by the USPS3: “• STANDARD POSTAGE STAMPS: Stamps purchased and affixed to mail as

evidence of the payment of postage. “Postage that might not be postmarked by the USPS

“If a party uses the following types of postage, the USPS may not postmark that mail and the envelope may not bear the official date of mailing by the USPS:

“• METERED MAIL: Mail on which postage is printed directly on an envelope or

label by a postage machine licensed by the USPS. Many private companies use these types of postage machines.

“• PRE-CANCELED STAMP: Stamps sold through a private vendor, such as

stamps.com.

2 This document is located online at: https://about.usps.com/handbooks/po408/ch1_003.htm 3 This list is not intended to be exclusive.

https://about.usps.com/handbooks/po408/ch1_003.htm

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“• AUTOMATED POSTAL CENTER (APC) STAMPS: Stamps, with or without a date, purchased from machines located within a USPS lobby.

“• PERMIT IMPRINT: Pre-sorted mail used by bill pay services, such as online

home banking. Id.

“If a document is not postmarked, the date of filing is ‘the date the Forum receives the document.’ 839-050-0040(1). The envelope containing Respondent’s Answer, and received by the contested case coordinator through USPS, indicated that Respondent paid for postage on March 5, 2018. Because it does not bear a proper postmark, it was received for purposes of filing on March 12, 2018. Respondent’s mailed filing was untimely.

“RESPONDENT’S HAND DELIVERY OF ITS ANSWER WAS TIMELY

“Respondent also hand delivered its Answer, however, on March 5, 2018. Included with its filing was a cover sheet, listing both the contested case coordinator and the administrative prosecutor, as well as their mutual address. (Respondent’s memorandum, Declaration of Patrick Drake). Although Respondent’s hand delivery of its Answer is not addressed in the Agency’s motion, it appears that the Agency did understand that it had been hand delivered.4 Mr. Drake declared under penalty of perjury that he provided the cover sheet to the individual at the BOLI reception window. There is no evidence to the contrary.

“Based on Respondent’s timely hand delivery of its Answer, the Agency’s

Motion for Default is DENIED. The Answer will be placed in the forum’s file and

the record will reflect that it was timely filed on March 5, 2018.


In an interim order, also issued March 3, 2018, the forum granted Respondent’s Motion for Postponement, resetting the hearing for Respondent’s requested hearing date of June 19, 2018, and set a prehearing conference for April 3, 2018. (Exs. X14-X17)

11) On April 2, 2018, the parties contacted the forum via email, requesting to move the prehearing conference. The forum reset the prehearing conference date to April 10, 2018. (Ex. X18)

12) On April 11, 2018, the forum issued an interim order summarizing the April 10, 2018 prehearing conference, setting case deadlines, and summarizing instructions for filing documents. (Ex. X19) 4 Respondent’s memorandum includes a transcribed voice message, left by the administrative prosecutor

with Ms. Gilcher-Kimmel, that acknowledges hand delivery of the Answer occurred. According to the transcribed message, Ms. Ortega did not know a cover sheet was included with the document. (Respondent’s memorandum, Declaration of Sandra Gilcher-Kimmel, Exhibit B).

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13) On April 27, 2018, Ms. Lorenc filed a completed Certificate of Compliance for Pro Hac Vice Admission, confirmation of insurance, Certificate of Good Standing from the Supreme Court of Illinois, and Certificate of Admission to the Bar of Illinois.5 On April 30, 2018, the forum issued an interim order granting Ms. Lorenc’s request for pro hac vice admission. (Exs. X20, X21)

14) On May 17, 2018, Respondent filed a Request for Extension of Discovery Motion Deadline.6 (Exs. X22)

15) On May 22, 2018, Respondent filed its Motion to Compel Discovery Responses and Motion for Postponement of Hearing, along with a Declaration of Amy Joseph Pedersen in Support of Respondent’s Motion to Compel Discovery Responses and Motion for Postponement of Hearing.7 On May 24, 2018, the Agency filed its timely Answer to Respondent’s Motion for Extension of Discovery Motion Deadline and Agency Answer to Respondent’s Motion to Compel Discovery Responses and Motion for Postponement of Hearing. Respondent then filed its Reply in Support of Motion to Compel Discovery Responses and Motion for Postponement of Hearing, on May 26, 2018.8 On May 29, 2018, the forum issued an interim order denying Respondent’s motions. The order stated:

“On May 17, 2018 Respondent filed a Request for Extension of Discovery Deadline. Pursuant to OAR 839-050-0150, the Agency’s responsive filing was thereby due May 24, 2018. On May 22, 2018, Respondent filed a Motion to Compel Discovery Responses and Motion for Postponement of Hearing. The Agency’s responsive filing to that motion would have been due May 29, 2018. On May 24, 2018 the Agency filed an Answer to Respondent’s Motion for Extension of Discovery Motion Deadline and Agency Answer to Respondent’s Motion to Compel Discovery Responses and Motion for Postponement of Hearing.

“REQUEST FOR EXTENSION OF MOTION FOR FORMAL DISCOVERY DEADLINE

“The deadline by which Motions for Formal Discovery should have been filed was originally set in the forum’s Interim Order re: Respondent’s Motion for Postponement, issued on March 23, 2018. That deadline was reiterated at the April 10, 2018 prehearing conference, during which time both Respondent and the Agency confirmed they did not anticipate any issues with meeting the deadline. Finally, it was again cited in the forum’s Interim Order re: Case Deadlines and Instructions for Filing Documents, issued on April 11, 2018.

“‘In an effort to provide timely hearings, OAR 839-050-0000 to 839-050-

0440 establish time limits that will be strictly followed. Waiver or extension of set

5 Respondent filed a duplicate of its filing on May 24, 2018. (Ex. X27) 6 Respondent filed a duplicate copy of its motion on May 21, 2018. (Ex. X23) 7 Respondent filed duplicate copies of its Motion to Compel Discovery Responses and Motion for

Postponement and its Declaration of Amy Joseph Pedersen on May 24, 2018. (Exs. X25 and X26) 8 Respondent filed a duplicate copy of its reply on May 29, 2018. (Ex. X31)

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time limits will be granted only under the limited circumstances set forth in these rules.’ OAR 839-050-0000(2). Unlike general motions, under OAR 839-050-0150(5), requests for extension of set deadlines are governed by OAR 839-050-0050(2). Pursuant to the rule, when a participant requires additional time to submit a document, a written request for such extension must be filed with and received by the Forum no later than the date set for filing of the document. (emphasis added) OAR 839-050-0050(2). Further, the administrative law judge may grant such an extension ‘only in situations when the requesting participant shows good cause for the need for more time or when no other participant opposes the request.’ OAR 839-050-0050(3). In this case, the Agency has objected to Respondent’s request. The forum then considers whether Respondent showed good cause for the need for more time.

“‘Good cause’ for failure to meet a deadline is when a participant’s failure

was ‘due to an excusable mistake or a circumstance over which the participant had no control. ‘Good cause’ does not include a lack of knowledge of the law, including these rules.’ OAR 839-050-0020(16). Respondent did not serve its discovery request until May 1, 2018, thereby making the Agency’s earliest response due May 15, 2018, which was also the deadline by which to file Motions for Formal Discovery. Pursuant to OAR 839-050-0200(6), a participant served with interrogatories has 14 days in which they can respond. Based on this rule, Respondent would have known that service of at least part of its discovery request on May 1st would result in the Agency’s responses and the deadline for Motions for Formal Discovery being on the same day. Respondent failed to articulate good cause for not filing a Request for Extension prior to the Motion for Formal Discovery deadline. Respondent’s Request for Extension of Discovery Deadline is DENIED.

“RESPONDENT’S MOTION TO COMPEL DISCOVERY

“Based on Respondent’s failure to meet the filing deadline for formal discovery motions, Respondent’s Motion to Compel Discovery is DENIED.

“RESPONDENT’S MOTION FOR POSTPONEMENT OF HEARING

“Since Respondent’s Motion for Postponement was based on its arguments regarding discovery, Respondent’s Motion for Postponement is also DENIED.


(Exs. X24, X28, X29, X30)

16) On June 6, 2018, Ms. Pedersen filed a letter with the forum, seeking confirmation that her attendance would not be required at the hearing on June 19, 2018; Ms. Pedersen also emailed a copy of the letter to the forum and the Agency. The forum responded to the parties, on June 4, 2018, stating that Ms. Pedersen’s presence would

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be required at the hearing, in order to “participate meaningfully” in the proceeding pursuant to UTCR 3.170(1)(c). (Exs. X32 and X33)

17) The Agency and Respondent timely submitted their Case Summaries on

June 5, 2018.9 (Exs. X35, X36) 18) On June 6, 2018, the forum issued an interim order regarding Conforming

Case Summaries to OAR 839-050-0210(1).10 (Ex. X38) 19) On June 7, 2018, Ms. Lorenc filed an additional Certificate of Compliance,

indicating she would be partnering with Alisha Kormondy, another Oregon lawyer with Ms. Pedersen’s law firm, for the contested case hearing.11 On June 11, 2018, the forum noted what appeared to be a scrivener’s error on the certificate and emailed Ms. Lorenc to request she resubmit a corrected certificate. Ms. Lorenc submitted a compliant certificate on June 11, 2018, and the forum’s interim order granting Ms. Lorenc pro hac vice, with Ms. Kormondy, was issued that same day. (Exs. X39-X42)

20) On June 11, 2018, Respondent filed its Case Summary Addendum.12 (Ex.

X44)

21) At the start of hearing, the ALJ orally informed the Agency and Respondent of the issues to be addressed, the matters to be proven, and the procedures governing the conduct of the hearing. (Hearing Record)

22) During the hearing, the Agency called Tim Howard to testify about his opinion of Complainant’s work performance in his current job. Respondent objected to his testimony, arguing that Complainant’s current work performance was irrelevant to the allegations in the Formal Charges. Respondent’s objection was sustained and Mr. Howard did not testify.

23) The hearing began on June 19, 2018. On June 21, 2018, the hearing concluded and the record closed.

24) On September 17, 2018, the ALJ issued a proposed order that notified the Agency and Respondent that they were entitled to file exceptions to the proposed order within ten days of the order’s issuance. (Ex. X50)

25) On September 18, 2018, Respondent filed its first Uncontested Request for Extension [of] Time to File Exceptions to Proposed Order. On September 19, 2018, the forum granted Respondent’s requested extension, via its Interim Order Granting

9 Respondent filed a duplicate copy of its Case Summary on June 6, 2018. (Ex. X37) 10 There was an error made when drafting the Exhibit List and the “Interim Order re: Conforming Case

Summaries to OAR 839-050-0210(1)” was mistakenly entered twice, resulting in the assignment of two X-Exhibit numbers (Exs. X34, X38) Duplicates of the order do not exist in the record.

11 Respondent filed a duplicate copy of these materials on June 11, 2018. (Ex. 43) 12 Respondent filed a duplicate Case Summary Addendum on June 12, 2018. (Ex. X45)

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Respondent’s Request for Extension of Time to File Exceptions to Proposed Order. (Exs. X51, X 52)

26) On September 19, 2018, Respondent filed its Motion Requesting Record of Hearing. On September 24, 2018, the forum granted Respondent’s request, via its Interim Order re: Respondent’s Motion Requesting Record of Hearing. (Exs. X53, X54)

27) On September 27, 2018, Respondent filed its second Uncontested Request for Extension of Time to File Exceptions to Proposed Order. On October 1, 2018, the forum granted Respondent’s request, via its Interim Order Granting Respondent’s Second Uncontested Request for Extension of Time to File Exceptions to Proposed Order. (Exs. X55, X56)

28) On October 25, 2018, Respondent filed its Exceptions to the Forum’s Proposed Findings of Fact, Conclusions of Law and Proposed Order. (Ex. X57)

29) The Agency did not file any Exceptions.


1) At all times material herein, Respondent was an active foreign limited liability corporation doing business in the State of Oregon. (Ex. A3)

2) At all times material herein, Don Bratcher worked as a Business Unit

Manager for Respondent and bore responsibility for Respondent’s Salem branch location. Mr. Bratcher had authority to hire and fire Respondent’s employees and made the final determination to terminate Complainant in February of 2017. (Testimony of Bratcher)

3) At all times material herein, Angela Cragel worked as a “HR

Manager/Business Systems Manager,” in Respondent’s Human Resources department. Her job duties included onboarding Respondent’s employees, providing training to Respondent’s employees, and addressing personnel issues with Respondent’s employees. (Testimony of Cragel)

4) Complainant Olsen was hired by David Lebel, the then-General Manager at

Respondent’s Salem branch location, on or about July 27, 2015. Complainant was hired as the Daytime Shift Lead. (Testimony of Complainant, Bratcher, Cragel; Exs. A2, A5)

5) The Daytime Shift was from 6:00 a.m. to 2:30 p.m. (Testimony of Bratcher) 6) In October of 2015, Mr. Lebel switched Complainant’s title to Swing Shift

Lead but had Complainant and the new Daytime Shift Lead, Kristopher Lee, work at the same time, essentially dissolving the second “swing” shift. (Testimony of Bratcher, Lee)

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7) Complainant retained his “Lead” position title, he did not see any reduction in pay, and he did not understand the change in his position to be related to a decline in work performance. (Testimony of Complainant)

8) At times material, Respondent operated a “Near Miss Report” program,

which was an incentive program designed to encourage employees to report “near miss” situations. Such situations could include, but were not limited to, situations that could lead to an employee suffering an injury, property damage, product loss, or simply improving a working condition to make the workplace safer. (Testimony of Bratcher, Cragel; Ex. A33, p.5)

9) At times material, Near Miss Reports consisted of a single-page document.

The top half of the document had fields to input the time and date of the near miss situation, as well as approximately two and half lines for a “Description of incident or potential hazard.” The bottom half of the document contained fields to input information regarding the subsequent “Near Miss Investigation,” and a signature line for “Management” personnel. If an employee failed to file a Near Miss Report, it was not supposed to result in disciplinary action. (Testimony of Urena, Complainant, Lee, Bratcher, Cragel; Ex. A10, A36, A37)

10) Mr. Lebel was terminated in February 2016 for poor management of his

employees. After his termination, Mr. Batcher discovered unresolved Near Miss Reports in Mr. Lebel’s office, many of which were against Complainant. The bottoms of all the forms were incomplete and it appeared Mr. Lebel had just shoved them in a file, after receiving them from employees, and had not conducted investigations into any of them. Mr. Lebel had never spoken with Mr. Bratcher about the unresolved reports. Mr. Bratcher scanned and emailed Ms. Cragel a copy of all of the unresolved Near Miss Reports, including those against Complainant. (Testimony of Bratcher, Cragel)

11) Ms. Cragel did not conduct an investigation into the validity of the

unresolved Near Miss Reports or interview Complainant about them.13 However, based on the reports, Mr. Bratcher and Ms. Cragel decided to issue Complainant a Final Written Warning Report. (Testimony of Complainant, Bratcher, Cragel; Exs. A6, A7)

12) On or about March 29, 2016, Ms. Cragel gave Complainant a Final Written

Warning Report, listing six near miss incidents; Mr. Bratcher participated by phone. The incidents were the subject of the Near Miss Reports that Mr. Bratcher had found in Mr. Lebel’s office. Complainant was not provided a copy of the Near Miss Reports, at the time of the meeting to discuss his Final Written Warning Report, however he did request them.14 (Testimony of Complainant, Bratcher, Cragel; Ex. A6)

13 There was no evidence or testimony that Respondent ever looked into the validity of the Near Miss

Reports against Complainant. During direct examination, Respondent’s counsel stated “you found no evidence the Near Miss Reports were incorrect.” Ms. Cragel responded “No.” Ms. Cragel did not testify that she had done any investigation into the reports.

14 Complainant requested the Near Miss Reports again on or about April 14, 2016, when he still had not received them. He was ultimately provided with the reports some time before May 10, 2016. (Testimony of Complainant, Bratcher, Cragel; Ex. A7, A8)

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13) Prior to March 29, 2016, Complainant had never received a written

warning. (Testimony of Complainant, Cragel) 14) Christy Shults (“GM Shults”) was hired by Mr. Bratcher to replace David

Lebel as General Manager of Respondent’s Salem branch in April or early May of 2016. (Testimony of Bratcher)

15) On or about June 28, 2016, Respondent revised the March 29, 2016 “Final

Written Warning Report” to a “Written Warning Report” and directed Complainant to take a forklift safety course and have no further “fork related incidents.” GM Shults was present at the meeting with Complainant to discuss the revision; Mr. Bratcher and Ms. Cragel participated in the meeting by phone. (Testimony of Cragel; Ex. A5, p. 28)

16) On August 25, 2016, GM Shults gave Complainant his annual performance

review. Complainant’s work performance was rated “fair,” “satisfactory,” “good” or “excellent” in all areas. Complainant’s work performance was not rated “poor” in any areas. Complainant received a 1.5% increase in pay at the time of his annual performance review, increasing his hourly wage from $16.00 per hour to $16.24 per hour. (Testimony of Complainant; Ex. A12)

17) In September of 2016, Complainant told GM Shults that he believed a

fellow employee was smoking marijuana on his breaks, prior to operating a forklift. Complainant’s concern was based on his personal experience of smelling marijuana on the employee. GM Shults told Complainant that she was handling the situation. (Testimony of Complainant)

18) On or about October 5, 2016, Complainant witnessed GM Shults unsafely

operate a forklift and tip a trailer, in the Salem branch. Both Christian Urena and Kristopher Lee also witnessed the incident.15 GM Shults was not properly certified on the forklift at the time of the incident. Complainant explained to GM Shults why her conduct was unsafe, however, GM Shults did not want to talk about it. (Testimony of Urena, Complainant, Lee; Ex. A14)

19) On or about October 11, 2016, Complainant wrote a Near Miss Report

regarding the incident involving GM Shults. Within the Near Miss Report, Complainant stated that the incident happened about a week prior to October 11, 2016. Complainant did not turn in the Near Miss Report at the time of the incident because he was fearful of retaliation from GM Shults. (Testimony of Complainant; Ex. A14)

20) Per GM Shults’s direction, all Near Miss Reports went directly through her

and she was responsible for passing them onto the Ashland, Ohio office. The practice, prior to GM Shults working for Respondent, was to provide them to the Ohio office as well, at the time of submission. (Testimony of Complainant, Lee; Ex. A33)

15 Mr. Urena testified that the incident took place on October 5, 2016.

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21) On or about October 12, 2016, Complainant sent an anonymous letter to Charlotte Tynor, the “Safety Coordinator” for Respondent, outlining his concerns regarding a romantic relationship between GM Shults and a subordinate employee. Complainant also stated his concerns regarding the same subordinate employee smoking marijuana on his break.16 The letter was sent to Ms. Tynor at Respondent’s Ashland, Ohio address. Ms. Cragel did not receive the letter until late October 2016, when it was forwarded to her. (Testimony of Complainant, Cragel; Ex. A15)

22) On or about October 21, 2016, GM Shults notified Complainant that his pay

would be reduced from $16.24 per hour to $15.49 per hour, effective October 24, 2016, and reduced his position from fulltime “Swing Lead” to “Clerk.” GM Shults cited the elimination of the Swing Shift Lead position as the reason for the change, however, Mr. Lebel had dissolved the separate swing shift lead time slot the previous year. Complainant had retained both his title of Swing Shift Lead and his rate of pay during that year. Respondent denied that Complainant was being demoted and did not list any disciplinary reasons, or poor performance, for the change to Complainant’s rate of pay. (Testimony of Complainant, Batcher; Exs. X8, X9, A16, A17)

23) On or about October 25, 2016, Ms. Cragel was given the anonymous letter

that Complainant had sent to Charlotte Tynor. Ms. Cragel notified GM Shults that she would be coming to the Salem branch to investigate an allegation regarding an employee smoking marijuana on breaks. (Testimony of Cragel)

24) On or about November 15, 2016, Ms. Cragel arrived at the Salem branch

to investigate the allegations made in Complainant’s October 12, 2016 anonymous letter. (Testimony of Complainant, Cragel)

25) On or about November 16, 2016, during Ms. Cragel’s investigation of the

anonymous complaint, GM Shultz notified Ms. Cragel that she wanted to give Complainant a Final Written Warning. GM Shults told Ms. Cragel that Complainant was having work performance issues and gave Ms. Cragel a document that GM Shults represented was documentation of her conversations with Complainant regarding work performance issues.17 (Testimony of Cragel)

26) After the conclusion of her investigation, Ms. Cragel determined there was

not enough evidence to substantiate the claims in Complainant’s October 12, 2016 anonymous letter. (Testimony of Complainant, Cragel)

27) On or about November 22, 2016, GM Shults gave Complainant a Final

Written Warning Report, listing multiple incidents of misconduct. (Ex. A5, p. 27) 28) At some point on or shortly after November 23, 2016, Complainant

provided to GM Shults a Near Miss Report regarding his understanding of her direction to improperly and unsafely unload pallets on or about November 21, 2016. The report

16 This was the same employee Complainant had spoken to GM Shults about in September of 2016. 17 The documentation was not offered as evidence at hearing.

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and accompanying explanation was dated November 22, 2018. Complainant could not recall the exact date the report was provided to GM Shults and ultimately stated he thought it was provided after he received his November 22, 2016 “final warning.” (Testimony of Complainant; Ex. A18)

29) At some point during the week of November 28, 2016, Complainant

provided a written response to GM Shults, regarding the November 22, 2016 Final Written Warning Report. Complainant’s response was dated November 25, 2016. In his response, Complainant addressed each incident listed in the November 22, 2018 Final Written Warning Report. Complainant also mailed a copy of his response to Mr. Bratcher and Ms. Cragel, at Respondent’s address in Ashland, Ohio. (Testimony of Complainant; Ex. A20)

30) On or about December 7, 2016, Complainant filed a complaint with the

Oregon Occupational Safety and Health Division (“OSHA”), alleging that GM Shults had operated a forklift without being properly trained, that a fellow employee smoked marijuana on his lunch break, and that GM Shults showed unfair favoritism to said employee. The complaint named “Leslie Brandt-Olsen,” Complainant’s wife, as the individual who submitted the complaint. Ms. Brandt-Olsen aided Complainant in submitting the complaint, on her computer.18 (Testimony of Complainant, Brandt-Olsen; Exs. A5, p. 50-51, A21)

31) On or about December 8, 2016, Complainant mailed a formal complaint, in

the form of a letter dated that same day, to Mr. Bratcher. The complaint was against GM Shults and alleged that she was involved in an inappropriate relationship with a subordinate employee, that she had made false accusations against Complainant in his November 22, 2016 Final Written Warning Report, that he witnessed GM Shults operating a forklift without proper training, that GM Shults had directed her employees to operate machinery in an unsafe manner, and that GM Shults lacked adequate knowledge and experience regarding how the warehouse functioned. Enclosed, Complainant included copies of four Near Miss Reports Complainant wrote regarding GM Shults and a copy of his November 25, 2016 response to his November 22, 2016 Final Written Warning Report. Complainant first gave a copy of the letter to GM Shults and then Ms. Brandt-Olsen mailed Mr. Bratcher a copy shortly thereafter. The letter was sent to Mr. Bratcher at Respondent’s Ashland, Ohio address. (Testimony of Complainant, Brandt-Olsen; Ex. A22, R9)

32) On or about December 9, 2016, an OSHA Investigator visited

Respondent’s Salem branch, in response to Complainant’s OSHA complaint. (Testimony of Complainant, Lee, Cragel)

18 There was sufficient evidence at hearing that Ms. Brandt-Olsen’s complaint was actually her husband’s

complaint. Specifically, that the complaint alleged the same concerns that Complainant had already voiced to GM Shults personally and that Ms. Brandt-Olsen assisted Complainant with submitting the complaint, on her computer. The complaint also listed a common email address that Complainant and his wife both used. (Ex. A21, A30) See In the Matter of City of North Bend, 1 BOLI 230, 235 (1980).

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33) On or about December 9, 2016, and after the investigator’s visit, GM Shults directed Mr. Lee to send her an email indicating he had trained her on the forklift and directed him to include particular key points in the email. At times material, one of Mr. Lee’s job duties was to train and certify employee forklift training. GM Shults told Mr. Lee that she needed the email for Mr. Bratcher. (Testimony of Complainant, Lee; A23, X48)

34) On December 9, 2016 Mr. Lee sent a “loosely accurate” email to GM

Shults. That same day, GM Shults used Mr. Lee’s email account to send a more specific version of the email to herself, falsely stating that she “went through all of the certification training” to use a forklift in September of 2016, prior to the October 2016 trailer tipping incident. GM Shults forwarded the false email to Mr. Bratcher that same day. (Testimony of Complainant, Lee; X48)

35) On or about December 29, 2016, having heard nothing from Respondent,

Complainant re-mailed his December 8, 2016 formal complaint against GM Shults, with enclosures, to Mr. Bratcher a second time. It was mailed certified return receipt requested. The letter was sent to Mr. Bratcher at Respondent’s Ashland, Ohio address. (Testimony of Complainant, Brandt-Olsen; Ex. A24)

36) On or about January 3, 2017, Respondent received Complainant’s

December 29, 2016 certified mailing of Complainant’s December 8, 2016 letter and enclosures. (Testimony of Bratcher, Cragel)

37) On or between January 23, 2017 and January 26, 2017, Ms. Cragel

investigated the allegations in Complainant’s formal complaint, dated December 8, 2016, and its accompanying enclosures. Ms. Cragel found no evidence to substantiate Complainant’s allegations against GM Shults, however she further documented reported work performance issues regarding Complainant. (Testimony of Complainant, Bratcher, Cragel; Ex. R10)

38) On February 14, 2017, Respondent terminated Complainant. In the

Employee Written Warning Report notifying him of his termination, Respondent made the following statement:

“Doug you have written near miss reports but did not turn the reports in to have the possible unsafe acts addressed and fixed. You have witnessed unsafe acts and walked away without giving ideas on how to make the situation safer.19 You have driven the forklift in an area with pedestrians without using your horn. These actions send a bad message to employees and do not support the

19 Ms. Cragel testified that an unaffiliated third-party was performing maintenance in Respondent’s facility.

The third-party was suspended in the air and should have been wearing a harness, based on the actions he was taking. Complainant yelled “Unsafe! Unsafe!” and walked away. GM Shults was also present and “went over and handled it.” Ms. Cragel did not believe either GM Shults or Complainant filed a Near Miss Report about the incident. (Testimony of Cragel)

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working conditions that Atlas strives to maintain. You have received previous warnings on safety. We have decided to end your employment.”

Mr. Bratcher made the final decision to move forward with Complainant’s termination; he was not present in person or telephonically when Complainant was terminated. Ms. Tynor and Mr. Lee were present, in person; Mr. Lee was present at Complainant’s request. Ms. Cragel participated via telephone. (Testimony of Complainant, Bratcher, Cragel)

39) Mr. Bratcher’s decision to terminate Complainant was based upon and influenced by the actions and representations of GM Shults and Ms. Cragel. (Testimony of Bratcher, Cragel)

40) Complainant was taken aback and shocked by his termination. He found it very upsetting and worried about his ability to take care of his wife, who dealt with a lot of health issues, without his income or insurance that he received through Respondent. He was also very concerned about his ability to provide housing for himself and his wife. (Testimony of Complainant)

41) After Complainant’s termination, Ms. Brandt-Olsen observed that Complainant had trouble sleeping at night, and experienced stomach cramps and headaches. (Testimony of Brandt-Olsen)

42) Regarding Respondent’s use of progressive discipline, Respondent’s employee handbook stated:

“B. Violation of the following rules will generally result in progressive discipline, typically a verbal or written warning for the first and/or second offense, a final warning with or without suspension of one or more days for the second or third offense, and termination for the third or fourth offense. Offenses need not be the same or similar to result in progressive discipline. In some cases, depending on the nature of the offense and the particular circumstances, more severe and/or more rapid discipline may result.

“* * * * *

“1. Operating or using machines, tools or equipment (including office machines, computers and software) in an unauthorized manner, or changing feeds or speeds without authorization.

“* * * * *

“3. Failing to follow work rules, housekeeping and safety procedures or policies, including but not limited to the failure to properly maintain equipment and the failure to report any injury, no matter how slight.

“4. Failing to maintain satisfactory work performance or causing excessive rework, scrap, waste or damage.

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“* * * * *

“13. Failing to report immediately any work-related accident, injury, illness, unsafe condition(s), defective equipment or damage to Company property, no matter how slight.

“14. Making or receiving personal phone calls or text messages during scheduled manufacturing or shipping/receiving work time (excluding break or lunch times).

“* * * * *

“21. Punching/recording timecard/timesheet in more than seven minutes before scheduled start time or punching/recording timecard/timesheet out more than seven minutes after end of scheduled quitting time, unless expressly authorized by a supervisor.”

(Ex. A33) 43) Complainant was subsequently hired by a different employer and began work on March 6, 2017. (Testimony of Complainant) Credibility Findings

44) Christian Urena’s testimony was credible and the forum credited his testimony in its entirety. (Testimony of Urena) 45) Complainant Douglas Olsen’s testimony was credible, except regarding the date he provided his response, to the November 22, 2016 Final Written Warning Report, to GM Shults. His testimony that he provided it to her the next day was inconsistent with his later testimony and was not credited. (Testimony of Complainant) 46) Leslie Brandt-Olsen’s testimony was credible and the forum credited her testimony in its entirety. (Testimony of Brandt-Olsen) 47) Kristopher Lee’s testimony was credible and the forum credited his testimony in its entirety. (Testimony of Lee) 48) Investigator Michael Mohr’s testimony was credible and the forum credited his testimony in its entirety. (Testimony of Mohr) 49) Don Bratcher’s testimony was credible, except in regard to Complainant’s work performance. The evidence demonstrated that he was heavily reliant on information from GM Shults and Ms. Cragel and did not have much personal knowledge of Complainant’s work performance. The forum also did not find his testimony that Complainant’s October 2016 demotion was due to the elimination of Complainant’s

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position, about one-year prior, to be credible. Mr. Bratcher’s testimony on these issues was not credited. (Testimony of Bratcher) 50) Angela Cragel’s testimony was credible, except in regard to Complainant’s work performance. The evidence demonstrated that she was also reliant on information from GM Shults, who retaliated against Complainant for reporting his safety concerns. Further, her testimony regarding the egregiousness of Complainant’s failure to file Near Miss Reports or make substantive safety suggestions regarding a third-party’s unsafe conduct, when GM Shults was present and immediately handled the situation, was not credible. The evidence at hearing was that failing to file a Near Miss Report did not result in disciplinary action against an employee, that Respondent failed to take action against other employees that failed to file Near Miss Reports and that taking action against Complainant, for failing to offer safety suggestions during the specific third-party incident mentioned in his termination, was unreasonable. Ms. Cragel’s testimony on these issues was not credited. (Testimony of Cragel)

CONCLUSIONS OF LAW

1) At all times material herein, Respondent Atlas Bolt & Screw Company LLC was an employer, as defined in ORS 654.005(5) and ORS 659A.001(4)(a), and employed Complainant.

2) At times material, Mr. Bratcher, Ms. Cragel, Mr. Lebel and GM Shults each

had the authority to hire and fire employees on behalf of Respondent. 3) The actions, statements, and motivations of Mr. Bratcher, Ms. Cragel, Mr.

Lebel and GM Shults are properly imputed to Respondent Atlas Bolt & Screw Company LLC. See In the Matter of Leo Thomas Ryder dba Leo’s BBQ Bar & Grill, 34 BOLI 67 (2015).

4) Respondent discriminated and retaliated against Complainant because of

his opposition to a practice forbidden under the Oregon Safe Employment Act (“OSEA”), by subjecting him to different terms and conditions of employment, thereby violating ORS 654.062(5)(a)-(c), OAR 839-004-0003(1)(b)-(c) and OAR 839-004-0016(1)-(2).

5) Respondent terminated Complainant because of his opposition to a

practice forbidden under OSEA, thereby violating ORS 654.062(5)(a)-(c), OAR 839-004-0003(1)(a) and OAR 839-004-0016(1)-(2).


of the persons and of the subject matter herein. ORS 654.062(6)(a). In the Matter of Arkad Enterprises, Inc., 8 BOLI 263, 275 (1990), aff’d Arkad Enterprises, Inc. v. Bureau of Labor and Industries, 107 Or App 384, 812 P2d 427 (1991).

7) Pursuant to ORS 659A.850, the Commissioner of the Bureau of Labor and

Industries has the authority under the facts and circumstances of this case to award

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Complainant back pay and money damages for emotional and mental suffering sustained and to protect the rights of Complainant and others similarly situated. The sum of money awarded and the other actions required of Respondent in the Order below are an appropriate exercise of that authority.

OPINION

It is an unlawful employment practice for an employer to terminate or otherwise discriminate against an 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 or instituted or caused to be instituted any proceeding

under or related to ORS 654.001 to 654.295, 654.412 to 654.423 and 654.750 to 654.780, or has testified or is about to testify in any such proceeding; or

(c) Exercised on behalf of the employee, prospective employee or others any right afforded by ORS 654.001 to 654.295, 654.412 to 654.423 and 654.750 to 654.780.”

ORS 654.062(5). Discriminatory conduct does not just include termination but also may include barring the employee from employment, subjecting the employee to different terms or conditions of employment, and subjecting the employee to retaliation or harassment. OAR 839-004-0003(1)(a)-(c). Protected actions, under the OSEA, include an employee’s communication of opposition to unlawful practices to anyone, including but not limited to: (a) coworkers; (b) employers; and (c) newspapers and other media. OAR 839-004-0016(2). Allegations of unlawful employment practices under ORS chapter 654 are processed “in the same manner and to the same extent that the complaint would be processed if the complaint involved allegations of unlawful employment practices under ORS 659A.030(1)(f),” an anti-retaliation statute. ORS 654.062(6)(a); In the Matter of Trees, Inc., 28 BOLI 218, 247 (2007).

“The purpose of the prohibition against discrimination in retaliation for safety complaints is to provide a means for employees to bring safety problems to the attention of the employer without fear of retribution, thus giving the employer the benefit of the employee’s first-hand knowledge of conditions and an opportunity to correct defects.” In the Matter of Veneer Services, Inc., 2 BOLI 179, 185 (1981), aff’d without opinion Veneer Services, Inc. v. Bureau of Labor and Industries, 58 Or App 76, 648 P2d 426

(1982). The agency’s prima facie case for such an allegation consists of the following elements: (1) Respondent is an employer as defined by statute; (2) Complainant was employed by Respondent; (3) Complainant opposed practices forbidden by ORS 654.001 to 654.295; (4) Respondent discharged or discriminated against Complainant; (5) Complainant’s opposition to practices forbidden by ORS 654.001 to 654.295 was a substantial factor in Respondent’s discharge of or discrimination against Complainant. In the Matter of Logan International Ltd., 26 BOLI 254, 281-82 (2005). In this case, the

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first two elements were undisputed by the parties. The following analysis is restricted to the last three elements, required by Logan, and Respondent’s liability thereunder.

RESPONDENT’S LIABILITY FOR DISCRIMINATION AGAINST AND UNLAWFUL

DISCHARGE OF COMPLAINANT, BASED ON COMPLAINANT’S OPPOSITION TO

PRACTICES FORBIDDEN UNDER THE OSEA

Complainant began working for Respondent as Daytime Shift Lead, in July of 2015. (Finding of Fact – The Merits #4) In October of 2015, Mr. Lebel switched Complainant to Swing Shift Lead. (Finding of Fact – The Merits #6) Complainant did not understand the change to be disciplinary and he did not see any reduction in pay as a result of the change; he also retained his title as a “Lead.” (Finding of Fact – The Merits #6, #7)

Complainant first reported safety concerns in the workplace in September of

2016. At that time, he reported to his direct supervisor, GM Shults, that he suspected a fellow employee was smoking marijuana on his breaks because the employee smelled of marijuana. GM Shults told Complainant that she was handling the situation. (Finding of Fact – The Merits #17) Respondent had knowledge of Complainant’s opposition to safety and health hazards when Complainant made his concerns regarding those hazards known to his manager. In the Matter of PAPCO, Inc., 3 BOLI 243, 252 (1983). As time went by, Complainant noted that no action was taken and started to suspect GM Shults was showing the employee favoritism. On or about October 12, 2016, Complainant sent an anonymous letter to Ms. Tynor, the Safety Coordinator, at the corporate office in Ashland, Ohio, reiterating his concerns about the employee’s marijuana use and GM Shults’s favoritism. (Finding of Fact – The Merits #21)

On or about October 5, 2016, and shortly before he sent the anonymous letter,

Complainant, Mr. Lee and Mr. Urena witnessed GM Shults unsafely operate a forklift. GM Shults operated the forklift without being properly trained, and tipped a trailer. When Complainant explained to GM Shults how her conduct was unsafe, GM Shults refused to discuss it with him. (Finding of Fact – The Merits #18) Complainant wrote a Near Miss Report about the incident but did not give it to GM Shults because he feared she would retaliate against him. GM Shults had directed her employees to file all Near Miss Reports directly with her, instead of including the Ashland, Ohio office, as had been the practice prior to GM Shults working for Respondent. (Finding of Fact – The Merits #19, #20)

On or about October 21, 2016, GM Shults reduced Complainant’s position title

from “Swing Lead” to “Clerk” and reduced his pay by $0.75 per hour. (Finding of Fact – The Merits #22) The changes to Complainant’s position came just weeks after Complainant had addressed his safety concern regarding GM Shults’s operation of the forklift with her, and within about a month of when he had addressed his safety concern regarding another employee’s alleged drug use with her. “To prove a violation of ORS 654.062(5)(a), the agency need not establish that complainant opposed conditions that actually violated a statute or rule. The agency need only prove that complainant was

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discriminated against for expressing safety concerns ‘under or related to’ the OSEA.” In the Matter of Trees, Inc., 28 BOLI 218, 248 (2007).

On or about November 16, 2016, while Ms. Cragel was at the Salem branch to

investigate Complainant’s anonymous complaint, GM Shults notified Ms. Cragel that she wanted to give Complainant a Final Written Warning Report. (Finding of Fact – The Merits #25) On or about November 22, 2016, GM Shults gave Complainant the Final Written Warning Report. (Finding of Fact – The Merits #27) At some point on or shortly after November 23, 2016, Complainant provided to GM Shults a Near Miss Report regarding his understanding of her direction to improperly and unsafely unload pallets on or about November 21, 2016. (Finding of Fact – The Merits #28) During the week of November 28, 2016, Complainant also submitted a written response to the November 22, 2016 Final Written Warning Report, to GM Shults, contesting her statements in the warning. (Finding of Fact – The Merits #29)

On December 7, 2016 Complainant filed a complaint against Respondent with

OSHA. His complaint documented GM Shults’s unsafe operation of the forklift, his concern regarding his fellow employee’s use of marijuana on his breaks and GM Shults’s alleged favoritism to that employee. (Finding of Fact – The Merits #30) On or about December 9, 2016, and after the OSHA investigator’s visit, GM Shults directed Mr. Lee to send her an email, so she could provide it to Mr. Bratcher, indicating he had trained her on the forklift and suggested key points that she wanted him to include in the email. When Mr. Lee’s email was not to her satisfaction, GM Shults rewrote it from Mr. Lee’s email account, and resent it to herself. (Finding of Fact – The Merits #33, #34) A reasonable inference can be made that GM Shults was trying to avoid negative consequences for her unsafe conduct.

On or about December 8, 2016, Complainant mailed a formal complaint, in the

form of a letter dated that same day, to Mr. Bratcher. The complaint was against GM Shults and alleged that she was involved in an inappropriate relationship with a subordinate employee, that she had made false accusations against Complainant in the November 22, 2016 Final Written Warning Report, that Complainant witnessed GM Shults operating a forklift without proper training, that GM Shults had directed her employees to operate machinery in an unsafe manner, and that GM Shults lacked adequate knowledge and experience regarding how the warehouse functioned. Enclosed, Complainant included copies of four Near Miss Reports Complainant wrote regarding GM Shults and a copy of his November 25, 2016 response to his November 22, 2016 final written warning. (Finding of Fact – The Merits #31) On or about December 29, 2016, having heard nothing from Respondent, Complainant re-mailed his December 8, 2016 formal complaint against GM Shults, with enclosures, to Mr. Bratcher a second time. It was mailed certified return receipt requested. (Finding of Fact – The Merits #35) On February 14, 2017, Respondent terminated Complainant. (Finding of Fact – The Merits #38)

At hearing, Respondent argued that Complainant was disciplined and, ultimately,

terminated based solely on his inferior work performance. Respondent offered

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evidence that Complainant had been given a Final Written Warning Report as early as March of 2016 for being the subject of several Near Miss Reports. (Finding of Fact – The Merits #12) However, none of the Near Miss Reports referenced in the March 2016 Final Written Warning Report were ever investigated and Respondent ended up reducing the warning to a Written Warning Report because it had no corroboration of the events alleged. (Finding of Fact – The Merits #11, #15) The March 2016 Final Written Warning Report was also at odds with Respondent’s own internal “progressive discipline policy,” which indicated that a “first and/or second offense” would typically merit a “verbal or written warning.” (Finding of Fact – The Merits #42)

In September and October of 2016, Complainant reported two safety concerns to

GM Shults. (Finding of Fact – The Merits #17, #18) One of those concerns was regarding her own unsafe operation of a forklift and could have exposed GM Shults to negative consequences. Up to that point, the evidence did not demonstrate that GM Shults had any issue with Complainant’s work performance. She had rated his work “fair,” “satisfactory,” “good” or “excellent” in all areas on his August of 2015 annual performance review and he had also received a pay increase. (Finding of Fact – The Merits #16) In late October however, after Complainant had reported his safety concerns to GM Shults, GM Shults demoted Complainant from his position title of Swing Lead and reduced his pay. She did not note any poor work performance in relation to her action. (Finding of Fact – The Merits #22) At hearing, Respondent argued that it did not intend to demote Complainant but made the change due to the elimination of the swing position. The argument is unpersuasive. Respondent had eliminated the swing shift time slot about one year prior to Complainant’s pay and title reduction. During that year, Complainant remained Swing Shift Lead and Respondent continued to pay Complainant at his same rate of pay. (Finding of Fact – The Merits #6, #7)

In retaliation cases, “discharge from employment is but one example of unlawful

discrimination * * * there can be other forms, including discriminatory alteration of job duties, unusually close supervision, or predisposition to terminate upon reduced ground.” In the Matter of Veneer Services, Inc., 2 BOLI 179, 183 (1981), aff’d without opinion Veneer Services, Inc. v. Bureau of Labor and Industries, 58 Or App 76, 648 P2d 426 (1982). In late October 2016, GM Shults was notified by Ms. Cragel that Ms. Cragel would be coming to the Salem facility in November to conduct an investigation into an employee allegedly smoking marijuana on his breaks. (Finding of Fact – The Merits #23) This was the same concern Complainant had spoken with GM Shults about in September of 2016, and that GM Shults had said she would handle. (Finding of Fact – The Merits #17) At that point, the evidence demonstrated that GM Shults began to subject Complainant to an unusual level of supervision, as well. On or about November 16, 2016, when Ms. Cragel was at the Salem branch investigating the marijuana complaint, GM Shults notified Ms. Cragel that she wanted to give Complainant a Final Written Warning Report. (Finding of Fact – The Merits #25) GM Shults gave Complainant the Final Written Warning Report on November 22, 2016. (Finding of Fact – The Merits #27)

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Complainant then sent, and resent, a formal complaint regarding GM Shults to the Ashland, Ohio office. (Finding of Fact – The Merits #31, #35) Ms. Cragel investigated Complainant’s December 8, 2016 complaint letter, which included his response to the November 22, 2016 Final Written Warning Report, on or between January 23, 2017 and January 26, 2017. Ms. Cragel found no evidence to substantiate Complainant’s allegations against GM Shults, however she did further document reported work performance issues regarding Complainant. (Finding of Fact – The Merits #37) When an employer has some good cause to discharge an employee, the discrimination or discharge may still be retaliatory if the employer’s knowledge of the employee’s opposition to safety hazards played a key role in the employer’s decision. In the Matter of Dee Wescott, 2 BOLI 29, 38-39 (1980). ORS 654.062(5) requires both knowledge and action upon that knowledge to constitute retaliation; oftentimes the analysis involved requires reasonable inferences from the specific facts of a case. Id.

Up until Complainant’s report of safety issues to GM Shults, one of which

concerned her own unsafe conduct in particular, there was no substantiated evidence of Complainant’s poor work performance. Following those reports, however, Complainant was demoted and his pay rate was decreased. He was also subjected to unusually close supervision by GM Shults, resulting in a Final Written Warning Report on November 22, 2018. Finally, Respondent’s actions indicated a predisposition to terminate based on its Written Warning Report on February 14, 2017, which was the basis for Complainant’s termination.

In the February 2017 termination Written Warning Report, Respondent cited

three reasons for Complainant’s termination: (1) Complainant failed to turn in Near Miss Reports; (2) Complainant witnessed unsafe acts and “walked away without giving ideas on how to make the situation safer;” and (3) Complainant drove through an area with pedestrians without using his horn. (Finding of Fact – The Merits #38) The first and second bases for Complainant’s termination are at odds with Respondent’s own policy regarding “near miss” situations. Witnesses, for both Respondent and the Agency, testified that the failure to turn in a Near Miss Report should not result in disciplinary action. (Finding of Fact – The Merits #9) Yet that is exactly what Respondent did. Further, the difference between failing to turn in a Near Miss Report and the failure to “[give] ideas on how to make the situation safer” is in form, not substance. Ms. Cragel testified that the second basis for termination, involved an unaffiliated third-party and that GM Shults was present and addressed it with the third-party immediately. Under such circumstances, Respondent’s expectation that Complainant be subject to termination for inadequately addressing the situation is unreasonable. (Finding of Fact – The Merits #38) There was no testimony as to the validity of Complainant’s alleged unsafe operation of a forklift, the third basis for termination. Because of Complainant’s reports of safety concerns in the workplace, Respondent altered Complainant’s job duties, subjected him to unusually close supervision and was predisposed to terminating him. Based on the evidence before the forum, Respondent discriminated against and unlawfully terminated Complainant due to his opposition to unsafe practices, in violation of ORS 654.062(5)(a), (b), (c), OAR 839-004-0003(1), and OAR 839-004-0016(1), (2).

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DAMAGES

Pursuant to ORS 659A.850(4)(a)(B), the Commissioner of the Bureau of Labor and Industries may issue an order requiring Respondent to perform an act or series of acts reasonably calculated to “[e]liminate the effects of the unlawful practice that the respondent is found to have engaged in, including but not limited to paying an award of actual damages suffered by the complainant and complying with injunctive or other equitable relief.” Such damages may include economic damages and emotional distress damages. In its amended Formal Charges, filed on February 12, 2018, the Agency sought economic damages of at least $10,000, out of pocket expenses of at least $200 and damages for emotional, mental, and physical suffering of at least $70,000.

Economic Damages – Lost Wages

The purpose of a lost wages or “back pay” award in employment discrimination cases is to compensate a complainant for the loss of wages and benefits the complainant would have received but for the respondent’s unlawful employment practices. In the Matter of Blue Gryphon, LLC, and Flora Turnbull, 34 BOLI 216, 238 (2015). Back pay awards are calculated to make a complainant whole for injuries suffered as a result of the discrimination. Id. The forum must have a basis for calculating back pay before it can make an award; the forum cannot award back pay when there is a lack of evidence from which to calculate such an award. In the Matter of Maltby Biocontrol, Inc., Howard Maltby, James Bassett, and Louis Bassett, 33 BOLI 121, 158 (2014).

Complainant worked fulltime as Daytime Shift Lead and then Swing Shift Lead,

for $16.24 per hour, until his demotion in October of 2016. (Finding of Fact – The Merits #4, #5, #22) A complainant who seeks back pay is required to mitigate damages by using reasonable diligence to find other suitable employment. In the Matter of Blue Gryphon, LLC, and Flora Turnbull, 34 BOLI at 238. After his termination on February 14, 2017, Complainant was hired by a new employer and began work on March 6, 2017. (Finding of Fact – The Merits #43) Complainant worked for Respondent fulltime for 16 weeks and one day, resulting in 648 hours of work, from the effective date of his demotion until his termination. Complainant is entitled to the difference in pay that resulted from his demotion because it was based on an unlawful employment practice; this amount is $486.00 in gross wages ($0.75 x 648 hours = $486.00). Complainant is also entitled to the lost wages he incurred between his date of termination and his first date of employment at his new job. There was a two week and two-day period between Complainant’s termination and when he began employment at his new job; this amount is $1,559.04 in gross wages ($16.24 x 96 hours = $1,559.04). The Agency did not offer any evidence to substantiate its request of economic damages in the amount of at least $10,000.00 or its request for out-of-pocket expenses in the amount of $200.00.20

20 Complainant testified that his position with his new employer did not offer similar medical benefits to

those that he received when he worked for Respondent, however, there was no specific evidence as to

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Respondent is liable for $2,045.04 ($486.00 + $1,559.04 = $2,045.04) in economic damages to Complainant.

Emotional Distress Damages Pursuant to ORS 659A.850, the Commissioner of the Bureau of Labor and

Industries has the authority to award money damages for emotional, mental, and physical suffering, and fashion a remedy adequate to eliminate the effects of unlawful employment practices. In the Matter of Leo Thomas Ryder dba Leo’s BBQ Bar & Grill, 34 BOLI 67, 76 (2015); In the Matter of Frehoo Inc., 36 BOLI 42, 71 (2017) appeal pending. At hearing, Complainant credibly testified that he was taken aback and shocked by his termination. He found it very upsetting and worried about his ability to take care of his wife, who dealt with a lot of health issues, without his income or his medical insurance. He was also very concerned about his ability to provide housing for himself and his wife. (Finding of Fact – The Merits #40) Ms. Brandt-Olsen also noticed changes in her husband after his termination. She noticed that Complainant began having trouble sleeping at night, and suffered from stomach cramps and headaches. (Finding of Fact – The Merits #41) A complainant’s testimony, if believed, is sufficient to support a claim for emotional distress damages. In the Matter of Maltby Biocontrol, Inc.,

33 BOLI 121, 159 (2014). Based on the evidence and testimony at hearing, as well as BOLI precedent, $60,000 is an appropriate amount of emotional distress damages in this case.

Additional Relief requested by the Agency

The Agency also sought a cease and desist order against Respondent requiring it to stop committing any unlawful employment practices the forum concludes occurred. BOLI’s Commissioner is authorized to issue an appropriate cease and desist order reasonably calculated to eliminate the effects of any unlawful practice found. ORS 659A.850(4). Among other things, that may include requiring a respondent to:

“(a) Perform an act or series of acts designated in the order that are reasonably calculated to:

“(A) Carry out the purposes of this chapter; “(B) Eliminate the effects of the unlawful practice that the respondent is found to have engaged in, including but not limited to paying an award of actual damages suffered by the complainant and complying with injunctive or other equitable relief; and “(C) Protect the rights of the complainant and other persons similarly situated[.]”

The forum finds the Agency’s requested cease and desist order to be appropriate relief in this case. This statute also gives the Commissioner the authority to require

the substantive difference between the two positions on this issue. There was no explanation as to the basis for the out-of-pocket expenses sought.

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Respondent to undergo training on the Oregon laws pertaining to the OSEA, either by the Bureau of Labor and Industries Technical Assistance for Employers Unit or another trainer agreeable to the Agency. The forum finds that this requirement is appropriate in this case.

RESPONDENT’S EXCEPTIONS

Respondent submitted approximately 13 pages of exceptions to the Proposed Order. The exceptions are addressed below.

Exception to the Proposed Findings of Fact

Respondent stated that it “ * * * [took] exception with the proposed Findings of

Fact.” (Respondent’s exceptions, p. 3) Pursuant to OAR 839-050-0380(1), “[e]xceptions must be specific and must be in writing.” Respondent did not take exception to specific Proposed Findings of Fact. Instead, Respondent summarized particular testimony that it argued should have led the forum to a different result.21 In substance, Respondent argued that the forum should have given the listed summaries more weight during its analysis of the evidence. The forum has reviewed Respondent’s list, in order to determine if additional Findings of Fact should be added to this order or original Findings of Fact should be changed. By and large, the summarized testimony was consistent with that which Respondent offered at hearing and, thus, has already been given due weight.22 “Oregon’s Administrative Procedures Act states: ‘The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the agency’s order.’” In the Matter of Oregon State Building and Construction Trades Council, 35 BOLI Orders 271, 296-297 (2017) citing ORS 183.470(2). Respondent’s general exception to the Proposed Findings of Fact is OVERRULED.

Exceptions to Proposed Conclusions of Law

Respondent cited specific exceptions to the Proposed Conclusions of Law. After

its specific exceptions, Respondent made a general argument for the four specific exceptions.

Exception III.a. Respondent argued that the forum’s conclusion that “[a]t all times material, Mr.

Bratcher, Ms. Cragel, Mr. Lebel and GM Shults each had the authority to hire and fire employees on behalf of Respondent” was not supported by substantial evidence or

21 The forum declines to speculate as to the list’s application to particular Proposed Findings of Fact. 22 Some of the summarized testimony, offered in support of Respondent’s general exception to the

Findings of Fact, included inaccurate characterizations of testimony. The forum gave such statements no weight.

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rationally connected to the facts in evidence.23 Respondent argued that Mr. Bratcher, alone, made the decision to terminate Complainant.

Exception III.b. Respondent argued that the forum’s conclusion that “Respondent had knowledge

of Complainant's opposition to safety and health hazards when Complainant made his concerns regarding those hazards known to his manager” was not supported by substantial evidence or rationally connected to the facts in evidence.24 Respondent went on to state:

“[t]he Forum, in discussing Complainant's anonymous complaint regarding an employee smoking marijuana and an inappropriate relationship between Christy Shults and Kem Stearns, fails to address the fact that (1) the complaint was anonymous, (2) the only person Complainant alleges he told about the marijuana incident was Christy Shults, who took no adverse action against Complainant, (3) Complainant never disclosed to Don Bratcher or Angie Cragel that he was the one who sent the anonymous letter and (4) Complainant failed to corroborate the claims made in the letter to Angie Cragel during her investigation.”

(Respondent’s exceptions, p. 7)

Exception III.c. Respondent argued that the forum’s conclusion that “Respondent discriminated

and retaliated against Complainant because of his opposition to a practice forbidden under the Oregon Safe Employment Act (`OSEA'), by subjecting him to different terms and conditions of employment, thereby violating ORS 654.062(5)(a)-(c), OAR 839-004-0003(1)(b)-(c) and OAR 839-004-0016(1)-(2)” was not supported by substantial evidence or rationally connected to the facts in evidence.25 Respondent argued that the Agency failed to establish a prima facie case of discrimination.

Exception III.d. Respondent argued that the forum’s conclusion that “Respondent terminated

Complainant because of his opposition to a practice forbidden under OSEA, thereby violating ORS 654.062(5)(a)- (c), OAR 839-004-0003(1)(a) and OAR 839-004-0016(1)-(2)” was not supported by substantial evidence or rationally connected to the facts in evidence.26 Respondent argued that the Agency failed to establish a prima facie case of discrimination.

23 (Proposed Conclusion of Law #2, Proposed Order) 24 (Proposed Order, p. 25). 25 (Proposed Conclusion of Law #4, Proposed Order) 26 (Proposed Conclusion of Law #5, Proposed Order)

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Respondent’s Arguments in Support of its Exceptions to the Proposed Conclusions of Law

Respondent’s exceptions fail to acknowledge that the marijuana issue was just one of the safety concerns brought up by Complainant to Respondent. The exceptions also rely upon Respondent’s premise that, because Mr. Bratcher made the “ultimate decision” to terminate Complainant, he did so in a vacuum. Mr. Bratcher’s “ultimate decision” is documented in Finding of Fact – The Merits #2, #38. Mr. Bratcher’s decision, however, was based upon and influenced by the actions and representations of GM Shults and Ms. Cragel. (Finding of Fact – The Merits #39) Mr. Bratcher testified that his decision was based on guidance from Ms. Cragel, as well the appropriate documentation of the steps Respondent had taken prior to termination.27

Respondent stated “the Forum also fail[ed] to address that in order for

Complainant's complaints [to] [sic] be a ‘substantial factor’ in any adverse action, the decision-makers with respect to an alleged adverse action had knowledge of the complaint before the adverse action was taken. * * * Where the person who makes the decision to discharge Complainant was unaware of Complainant's opposition to a practice forbidden under OSEA prior to discharging Complainant, the Forum ‘cannot conclude that [Respondent] discharged Complainant because he opposed [an activity forbidden by OSEA].’” Citing In re City of N. Bend, Or., 1 BOLI 230 (1980) and In re Logan Int'l Ltd., 26 BOLI 254, 282 (2005). Although GM Shults, Ms. Cragel and Mr. Bratcher were not all notified of Complainant’s safety concerns at the same time, even viewing the evidence in the light most favorable to Respondent, Respondent offered evidence that it received Complainant’s formal complaint letter documenting his safety concerns on or about January 3, 2017. Complainant’s discharge did not occur until February 14, 2017. However, the evidence demonstrated that Respondent’s discriminatory conduct against Complainant began in Fall 2016 and continued until his termination, due to him voicing his safety concerns. He suffered adverse employment actions against him, he was subjected to unusually close supervision by Respondent and Respondent was predisposed to terminate him. Respondent’s exceptions to the Proposed Conclusions of Law are OVERRULED.

Exceptions to Proposed Damages

Respondent’s Exception to the Award of Back Pay Respondent argued that the forum should not have awarded back pay for the

period of time between when Respondent reduced Complainant’s pay and his termination because Complainant testified that he believed corporate had told GM Shults to reduce his pay due to the elimination of the swing position. Complainant testified that GM Shults was the source of this information. The forum still finds Respondent’s argument, that it inadvertently paid Complainant a higher salary and

27 Respondent provided a transcript of part of Mr. Bratcher’s testimony that references his reliance on

outside information, as an exhibit to its exceptions. (Respondent’s Exceptions, Ex. 1, p. 25)

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allowed him to retain his title a year after the elimination of his position, unpersuasive. Respondent’s exception is OVERRULED.

Respondent’s Exception to the Award of Emotional Distress Damages Respondent argued that the forum abused its discretion by awarding

Complainant the Agency’s requested $70,000.00 in emotional distress damages. As noted by Respondent, in determining an amount of damages for emotional and mental suffering, the forum considers the type of discriminatory conduct and the duration, frequency, and severity of the conduct. See In re Blue Gryphon, LLC, 34 BOLI 216, 238 (2015).

ORS 654.010 states that employers must provide a “safe and healthful”

workplace for employees, requiring employers to do “everything reasonably necessary to protect the life, safety and health” of their employees. The purpose of the OSEA is to encourage safety in the workplace and to provide protections for those individuals that voice safety concerns. ORS 654.003. The protection of life, safety and health is so important, in fact, that the OSEA protects even those employees who voice concerns that are simply related to the OSEA; individuals need not demonstrate there was an actual violation of an Oregon OSHA rule. In the Matter of Rogue Valley Fire Protection, 26 BOLI 172, 183 (2005). The alternative would defeat the purpose of the OSEA:

“The purposes of the Act could too easily be frustrated and chilled if employees reported unsafe conditions or avoided life and limb threatening hazards in the workplace only at risk of being right, of being procedurally correct, and of ‘deserving’ recognition of their concerns.”

In the Matter of Snyder Roofing & Sheet Metal, Inc., 11 BOLI 61, 82 (1992). The significance of this type of discrimination is apparent.

Complainant first notified Respondent of his safety concerns in the Fall of 2016, when he complained to his direct supervisor, GM Shults. Complainant was subsequently stripped of his lead title and his pay was reduced. In the months that followed, Complainant was subjected to unusually close supervision, resulting in a Final Written Warning from GM Shults and, ultimately, his termination. Respondent pointed out that, like the complainant in Blue Gryphon, Complainant worked for Respondent for less than two years. (Respondent’s exceptions, p.12) In that case, the forum awarded $20,000.00 in emotional distress damages to the complainant. In the Matter of Blue Gryphon LLC, 34 BOLI 216 (2015). Unlike the complainant in Blue Gryphon, however, Complainant was subjected to the continued stress of Respondent’s unusually close supervision for months, prior to his termination. Further, unlike the complainant in Blue Gryphon, part of Complainant’s distress after his termination was his understandable concern about how he would care for a sick loved one, without the benefit of his income or medical insurance.

Respondent also cited In the Matter of Trees, Inc., 28 BOLI 218 (2007), as a

basis to lower damages in this case; the complainant in the Trees case was awarded

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$30,000.00 in emotional distress damages. Respondent correctly pointed out that the complainant in Trees worked for his employer for 18 years, prior to the employer’s retaliation against him. Respondent argued that, because Complainant worked for Respondent for significantly less time than the Trees complainant, Complainant’s damages were too high in this case. Depending on the specific facts of a particular case, the length of time an individual employee works for an employer may well be a significant factor in the forum’s consideration of emotional distress damages, but that is not always the case. See In the Matter of Navex Global, Inc., 36 BOLI Orders 200 (2018) (Complainant was awarded $120,000.00 in emotional distress damages due to her employer’s discrimination against her for her scheduled service on a jury; Complainant was employed by the employer for approximately five months.); See also In the Matter of Cyber Center, Inc., 32 BOLI 11 (2012) (Complainant was awarded $120,000.00 in emotional distress damages due to her employer’s discrimination against her, based on her sex; Complainant was employed by the employer for approximately seven months.)

The actual amount of emotional distress damages awarded, in any given case,

depends upon the particular evidence of a complainant’s harm. In the Matter of Melissa and Aaron Klein dba Sweetcakes by Melissa, 34 BOLI 102, 129 (2015), 289 Or. App. 507 (2017). Respondent discriminated against Complainant almost immediately after his report of safety concerns to GM Shults, when it stripped him of his title and reduced his pay. The stress from that occurrence was compounded by the fact that he was then subjected to unusually close supervision, resulting in a Final Written Warning. Respondent then terminated him for reasons at odds with its own policies and practices. Complainant and his wife credibly testified as to the harm this caused him. Although unpersuaded by Respondent’s arguments regarding the significance of the cited cases, the forum did give further consideration of the forum’s precedent on emotional distress damages in this matter. The harm that resulted from Respondent’s unlawful conduct, in this case, is more similar to that evidenced in Edgewood Construction and Multnomah County Sheriff’s Office, and the forum modifies its award to $60,000.00 in emotional distress damages.28

ORDER

A. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS 659A.850(4), and to eliminate the effects of Respondents’ violations of ORS

654.062(5)(a), (b), (c), OAR 839-004-0003(1) and OAR 839-004-0016(1), (2), and as payment of the damages awarded, the Commissioner of the Bureau of Labor and Industries hereby orders Respondent Atlas Bolt & Screw Company LLC, to deliver to

the Administrative Prosecution Unit of the Bureau of Labor and Industries, 1045 State

28 In Edgewood Construction, the complainant testified about the extreme stress of maintaining a

residence for himself and his family, following his unlawful termination; Complainant also testified about his physical symptoms of stress. In the Matter of Edgewood Construction LLC, 36 BOLI Orders ___ (2018). Similarly, in Multnomah County Sheriff’s Office, the complainant testified that he had also suffered physical symptoms of stress, as well as experienced feelings of anger and frustration, which affected his familial relationships. In the Matter of Multnomah County Sheriff’s Office, 33 BOLI 220, 251 (2014).

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Office Building, 800 NE Oregon Street, Portland, Oregon 97232-2180, a certified check payable to the Bureau of Labor and Industries in trust for Complainant Douglas Olsen

in the amount of:

1) TWO THOUSAND FORTY-FIVE DOLLARS and FOUR CENTS ($2,045.04) representing economic damages Douglas Olsen incurred as a result of Respondent’s unlawful employment practices;

2) Interest at the legal rate on the sum of TWO THOUSAND FORTY-FIVE DOLLARS and FOUR CENTS ($2,045.04) from the date the Final Order is issued until paid;

3) SIXTY THOUSAND DOLLARS ($60,000.00), representing damages for emotional and mental suffering Douglas Olsen experienced as a result of Respondent’s unlawful employment practices; plus,

4) Interest at the legal rate on the sum of SIXTY THOUSAND DOLLARS ($60,000) from the date the Final Order is issued until paid. B. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS

659A.850(4), the Commissioner of the Bureau of Labor and Industries hereby orders Respondent Atlas Bolt & Screw Company LLC to cease and desist from

discriminating or retaliating against any employee based upon the employee’s opposition to practices forbidden under the OSEA.

C. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS

659A.850(4), and to eliminate the effects of Respondent’s unlawful employment practice found herein, the Commissioner of the Bureau of Labor and Industries hereby orders Respondent Atlas Bolt & Screw Company LLC to train its management personnel on

the correct interpretation and application of the Oregon laws pertaining to the OSEA, specifically ORS 654.062, either through a training offered by the Bureau of Labor and Industries Technical Assistance for Employers Unit or another trainer agreeable to the Agency.

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_____________________________

In the Matter of

OREGON TRUCK PAINTING, LLC, ON TIME

PAINTING, INC., RICHARD BOWMAN

INDIVIDUALLY, AND AMANDA M. MARIN, INDIVIDUALLY, RESPONDENTS, CASE NO. 32-17 &

33-17


Issued December 4, 2018

_____________________________

SYNOPSIS

The forum concluded that Respondent On Time Trucking Inc. (“On Time”)

violated ORS 654.062(5) and ORS 659A.199 when it terminated Complainant in retaliation for his complaints about unsafe working conditions. Respondent Oregon Truck Painting, LLC, is a successor employer of On Time pursuant to OAR 839-004-0003(3)(c) and is also liable for On Time’s violation of ORS 654.062(5). Respondent Bowman, On Time’s president, violated ORS 659A.030(1)(g) by aiding and abetting On Time’s violation of ORS 659A199. The forum awarded Complainant $75,000 in damages for mental and emotional distress stemming from the unlawful employment practices, but did not award any lost wages or out-of-pocket expenses.

_____________________________

The above-entitled case came on regularly for hearing before Kari Furnanz, designated as Administrative Law Judge (“ALJ”) by Brad Avakian, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The hearing was held on March 20 and 23, 2018, in the W. W. Gregg Hearing Room of the Oregon Bureau of Labor and Industries, located at 800 NE Oregon Street, Portland, Oregon. The Bureau of Labor and Industries (“BOLI” or “the Agency”) was represented by Administrative Prosecutor Adriana Ortega, an employee of the Agency. The Agency called Elizabeth Twigger, BOLI Senior Civil Rights Investigator Michael Mohr and Complainant Richard Twigger as its witnesses. Respondents were not present at the hearing and called no witnesses. The forum received into evidence: (a) Administrative exhibits X1 through X441

1 Exhibits X15A, X15B, X17A and X18A were in the forum file at the time the hearing began, but were inadvertently omitted from the exhibit list circulated at the hearing. Exhibits X36-X44 were received after the hearing commenced.

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and (b) Agency exhibits A1-A14.2 Having fully considered the entire record in this matter, I, Brad Avakian, Commissioner of the Bureau of Labor and Industries, hereby make the following Findings of Fact (Procedural and on the Merits3), Conclusions of Law, Opinion and Order.


1) Complainant filed a verified complaint in Case No. OSEMOS160229-10234 with the Agency’s Civil Rights Division on February 29, 2016, alleging that Respondent On Time Painting Inc. (“On Time”) retaliated against him and terminated his employment because he reported to the Oregon Occupational Safety and Health Administration (“OHSA”) and opposed health and safety hazards. The complaint was later amended to include Oregon Truck Painting LLC (“Oregon Truck”) as an additional respondent and to identify Amanda M. Marin (“Marin”) and Richard Bowman (“Bowman”) as aiders/abettors. (Exs. A1, A2) 2) Complainant filed a verified complaint in Case No. STEMIW160229-10235 with the Agency’s Civil Rights Division on February 29, 2016, alleging that On Time retaliated against him and terminated his employment because of his invocation of the Oregon Workers’ Compensation System and for his protected whistleblowing activities. The complaint was later amended to include Oregon Truck as an additional respondent and to identify Marin and Bowman as aiders/abettors. (Exs. A3, A4) 3) On November 22, 2016, the Agency’s Civil Rights Division issued a Notice of Substantial Evidence Determination (“SED”) in Case Nos. OSEMOS160229-10234 and STEMIW160229-10235 in which it found substantial evidence of unlawful employment practices in that On Time4 and Oregon Truck (1) terminated Complainant’s employment for protected whistleblowing activities in violation of ORS 659A.199 and (2) terminated Complainant’s employment for protected reporting of safety violations to OSHA5 in violation of ORS 654.062. The SED also named Marin and Bowman as aiders and abettors of those violations. It further stated that the Division did not find substantial evidence of an unlawful termination for invocation of the workers’ compensation system. (Ex. A12) 4) On March 22, 2017, the Forum issued Notices of Hearing to Respondents, the Agency and Complainant in BOLI Case Nos. 32-17 and 33-17 stating the time and place of the hearing as July 11, 2017, beginning at 9:30 a.m., at the W. W. Gregg

2 Exhibits A12-A14 were requested by the ALJ and were admitted into evidence by the ALJ after the hearing. 3 The Ultimate Findings of Fact required by OAR 839-050-0370(1)(b)(B) are subsumed within the Findings of Fact – The Merits. 4 The heading of the SED identified “On Time Painting Inc.” as “Respondent,” but contained a scrivener’s error in the Determination and referred to On Time as “On Time Painting, LLC.” 5 References to “OSHA” throughout this Final Order refer to the Oregon Occupational Safety and Health Division of the Oregon Department of Consumer and Business Services.

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Hearing Room of the Oregon Bureau of Labor and Industries, located at 800 NE Oregon Street, 10th floor, Portland, Oregon. Together with the Notices of Hearing, the forum sent copies of the Agency's Formal Charges in each case, a document entitled “Summary of Contested Case Rights and Procedures” containing the information required by ORS 183.413, a document entitled “Servicemembers Civil Relief Act (SCRA) Notification,” a multi-language notice explaining the significance of the Notice of Hearing and a copy of the forum’s contested case hearings rules, OAR 839-050-000 to 839-050-0445. (Exs. X2, X5) 5) The Formal Charges in Case No. 32-17 alleged that On Time unlawfully retaliated against Complainant by terminating his employment on the basis of (1) Complainant’s opposition to and reporting of hazardous working conditions, in violation of ORS 654.062(5),(6) and OAR 839-004-0016(1)-(3); and (2) Complainant’s opposition to Respondents’ unlawful practices, in violation of ORS 659A.030(1)(f) and OAR 839-005-0125(1)-(3). The Formal Charges further alleged that Oregon Truck is a successor employer to On Time and was liable for On Time’s violations, and that Marin and Bowman aided and abetted On Time violations. The Formal Charges sought lost wages estimated to be “at least $80,000.00” and damages for physical, mental and emotional distress in the amount of “at least $50,000.00.” The Formal Charges also requested, alternatively, the forum to declare that the practices of Respondents violate the applicable laws and rules, and enjoin Respondents, their agents, employees and successors and all other persons in active concert or participation with any of them from violating laws pertaining to ORS 659A.001 through 659A.990. The Formal Charges state that the forum’s order may include such other relief as appropriate to eliminate the effects of the unlawful practices found as to Complainant and others similarly situated. (Ex. X2a) 6) The Formal Charges in Case No. 33-17 alleged that On Time unlawfully retaliated against Complainant by terminating his employment on the basis of (1) Complainant’s protected whistleblowing activities, in violation of ORS 659A.199(1) and OAR 839-010-0100(1); and (2) Complainant’s opposition to Respondents’ unlawful practices, in violation of ORS 659A.030(1)(f) and OAR 839-005-0125(1)-(3). The Formal Charges further alleged that Oregon Truck is a successor employer to On Time and was liable for On Time’s violations, and that Marin and Bowman aided and abetted On Time’s violations. The Formal Charges sought lost wages estimated to be “at least $80,000.00” and damages for physical, mental and emotional distress in the amount of “at least $50,000.00.” The Formal Charges also requested, alternatively, the forum to declare that the practices of Respondents violate the applicable laws and rules, and enjoin Respondents, their agents, employees and successors and all other persons in active concert or participation with any of them from violating laws pertaining to ORS 659A.001 through 659A.990. The Formal Charges state that the forum’s order may include such other relief as appropriate to eliminate the effects of the unlawful practices found as to Complainant and others similarly situated. (Ex. X5a) 7) On March 27, 2017, the forum issued two interim orders. The first, entitled "Requirements for Filing Motions and Other Documents," explained the forum's filing

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requirements, including the method by which documents must be filed and the timeline for filing documents. The second order required case summaries to be filed no later than June 27, 2017, and set out the requirements for what each participant must include in their case summary. (Exs. X7, X8)

8) On March 18, 2017, ALJ Alan McCullough issued an interim order transferring the case to ALJ Kari Furnanz. (Ex. X15A)

9) On April 17, 2017, Bowman was personally served with the Notices of

Hearing and Formal Charges in Case Nos. 32-17 and 33-17. Bowman filed an answer on April 30, 2017. (Exs. X14, X15, X15B; Ex. J to Ex. X19)

10) In an interim order dated May 24, 2017, the ALJ notified the parties that the hearing needed to be rescheduled due to a scheduling conflict and instructed them to email the ALJ with dates the parties were available for hearing during August and September 2017, no later than Tuesday, May 30, 2017, by 5:00 p.m. None of the parties complied with the instruction in the interim order. On May 31, 2017, the ALJ issued an interim order resetting the hearing to begin on Tuesday, September 12, 2017, at 9:00 a.m. and resetting the case summary deadline to Tuesday, August 29, 2017. (Exs. X16, X18A)

11) The Agency filed a Motion for Default on May 25, 2017. On May 26, 2017, the ALJ entered an interim order that stated, in pertinent part: “* * * The Motion [for default] is DENIED for the following reasons:

The motion seeks default ‘in case number 36-16,’ but was filed in Case Nos. 32-17 and 33-17.

The motion states that the ‘NOI’ was served upon the Secretary of State. However, the charging documents at issue in Case Nos. 32-17 and 33-17 are Formal Charges.

The first page of Exhibit H (email from ‘[email protected]’ stating that an ‘order’ has been served) lacks the details and signed verification that are normally included in a Proof of Service signed by a process server.

Exhibit G includes a request for acknowledgement of receipt of process by the Secretary of State, but no such acknowledgment is included.6

6 The forum also notes that there is not an affidavit or declaration signed by a witness stating that the exhibits are true copies of documents in the Agency’s file, and to verify on the record that certain actions to complete service were done. See In the Matter of Portland Flagging, LLC (#28-15), 34 BOLI 244, 248 (2016) (motion denied when there was no sworn testimony to explain the significance of exhibits and they were not self-authenticating documents).

mailto:[email protected]

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Because the motion has been denied, Respondents do not need to file a response to the motion filed on May 25, 2017. The Agency may file another motion for default which contains the full and correct information. If a new motion is filed, Respondents have seven days to file a response to that motion.”

(Exs. X17, X17A) 12) A telephone prehearing conference was held on August 7, 2017, at 4:30 p.m. The conference was digitally recorded. Administrative Prosecutor Adriana Ortega appeared on behalf of the Agency. Although Respondent Richard Bowman had indicated by email that he was available on the date and time set for the conference, he did not call into the conference at the designated time. The ALJ waited until 4:35 p.m. before beginning the conference. When the conference began, the ALJ explained that part of the purpose of the conference was to explain the hearing process to Bowman. Since he did not participate in the conference, the ALJ proceeded with obtaining information about the hearing from the Agency. After the conference, the ALJ issued an interim order summarizing the topics discussed during the conference and reminding the parties that the hearing was set to begin on Tuesday, September 12, 2017, at 9:00 a.m., and that case summaries must be filed no later than on Tuesday, August 29, 2017. (Ex. X18)

13) The Agency filed an Amended Motion for Default on August 23, 2017, requesting an order of default against Oregon Truck, On Time and Marin because they did not file answers to the Formal Charges in Case Nos. 32-17 and 33-17. The forum issued an interim order ruling on the amended motion which stated, in pertinent part:

“Respondent Amanda Marin “Marin is in default if she ‘fail[ed] to file a required response, including * * * an answer, within the time specified in the charging document.’ OAR 839-050-0330(1). A party must file an answer ‘within 20 days after service’ of the Formal Charges. OAR 839-050-0130(4). Accordingly, the forum must first examine whether the Agency served Marin with a copy of the Notice of Hearing (‘NOH’) and Formal Charges in order to determine whether she was required to file an answer. “The Agency attempted to serve Marin in the following ways:

On March 22, 2017, BOLI’s Contested Case Coordinator placed the NOH and Formal Charges in Case No. 32-17 in BOLI’s outgoing mail addressed to Marin at 4051 NE Columbia Blvd., Portland, OR 97211-2047. This is the mailing address for Marin listed on the Oregon Secretary of State’s website for [Oregon Truck], as of November 16, 2015. (Ex. B) The Certificate of Service states that the mailing to Marin was ‘via Regular & Certified Mail, Receipt #7016 0750 0000 8128 5509.’ (Exs. D and E) The

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envelope with this mailing was returned by the post office and marked with a sticker stating, ‘RETURN TO SENDER, NOT DELIVERABLE AS ADDRESSED, UNABLE TO FORWARD.’ (Ex. F)

On March 22, 2017, BOLI’s Contested Case Coordinator placed the NOH and Formal Charges in Case No. 33-17 in BOLI’s outgoing mail addressed to Marin at 4051 NE Columbia Blvd., Portland, OR 97211-2047. The Certificate of Service states that the mailing to Marin was ‘via Regular & Certified Mail, Receipt #7016 0750 0000 8128 5532.’ (Exs. D and E) The envelope with this mailing was returned by the post office and marked with a sticker stating, ‘RETURN TO SENDER, NOT DELIVERABLE AS ADDRESSED, UNABLE TO FORWARD.’ (Ex. F)

Between April 8 and 15, 2017, a process server attempted to personally serve Marin at 1463 SE Oak Grove Blvd., Portland, OR 97267-1070 on five occasions. On two occasions, no one answered the door. On April 5 and April 13, the residents informed the process server that Marin resided at that location but was not available. On April 15, a man informed the process server that he resided at the location and that Marin had separated from her husband, moved and left no forwarding address. (Ex. I)

A process server attempted to personally serve Marin on April 18 and 22, 2017, at 11048 SE Causey Circle, Happy Valley, OR 97086. On April 8, no one answered the door. On April 22, the woman who answered the door told the process server that Marin was the previous tenant and that she had seen some mail for Marin at that address. (Ex. J) “OAR 839-050-0030, describes the methods of serving a NOH and Formal Charges and states, in pertinent part: ‘(1) * * * [T]he charging document [in a BOLI contested case] will be served on the party or the party's representative by personal service or by registered or certified mail. Service of a charging document is complete upon the earlier of:

‘(a) Receipt by the party or the party's representative; or “(b) Mailing when sent by registered or certified mail to the correct address of the party or the party's representative.’

ORS 183.415(2) similarly requires state agencies to serve notices of contested case hearings ‘personally or by registered or certified mail.’ “First, although the Agency made considerable efforts to serve Marin, there is no evidence that she actually received a copy of the NOH and Formal

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Charges. She was not at the locations where personal service was attempted and the copies mailed to her were returned by the post office as undeliverable. Accordingly, the requirement of OAR 839-050-0030(1)(a) (‘receipt by the party’) has not been met. “Second, the Agency did not show that it mailed the Formal Charges to Marin’s ‘correct address.’ The Formal Charges were mailed to 4051 NE Columbia Blvd., Portland, OR 97211-2047, which is the address Marin listed on documents filed with the Corporation Division of Oregon’s Secretary of State on or about November 16, 2015. However, there is no evidence that this was the correct address for Marin on the date of mailing, March 22, 2017. This forum previously noted that the use of an address for a previous year, without other supporting evidence, is not sufficient to establish that it was the correct address ‘at the time of the mailing.’ In the Matter of Green Planet Landscaping, Inc., 21 BOLI 130, 138 n.2 (2000). See also Marsh v. Builders Bd., 54 Or App 242, 245, 634 P2d 803 (1981) (the mailing of a notice to a last known address that was returned as undelivered was not ‘reasonable notice’ of a contested case hearing under ORS 183.415). Rather, the fact that the mail was returned by the post office shows that it was not Marin’s correct address.7 Accordingly, the Agency did not prove that it met the requirements of OAR 839-050-0030(1)(b) (‘[m]ailing * * * to the correct address’).8 As of this date, Marin has not been served with the Formal Charges. Therefore, Marin is not in default and the Agency’s motion is DENIED. Citing to ORCP 7D(6)(a), the Agency alternatively requests ‘the forum to order that service upon [Marin] be made upon mailing of the formal charges to the address listed as her address with the Oregon Secretary of State, by both regular and certified mail.’ However, service upon the Secretary of State is a procedure enacted by Oregon’s legislature to effect service on corporations or limited liability companies. See ORS 60.121, 63.121. These statutes do not apply to service upon individuals such as Marin. Accordingly, service upon the Secretary of State would not result in a mailing to Marin’s ‘correct address.’ The ALJ must correctly apply the law and does not have the authority to issue an interim order that eliminates the service requirements of BOLI’s contested case rules and ORS 183.415.9 183.417(8). Accordingly, the Agency’s request for an order allowing service of Marin by mailing to the Secretary of State is DENIED.

7 BOLI’s contested case rules contain a presumption that the address on file with the Agency is correct ‘[u]nless the Forum and the Administration Unit have been so notified.’ OAR 839-050-0030(4). Because the mail was returned, the Agency was ‘notified’ that the address was not correct. Thus, that presumption has been rebutted. 8 Notably, the ‘correct address’ language for the service of charging documents differs from the language of OAR 839-050-0030(2) requiring service of all other case documents to be made to a party’s ‘last known address.’ 9 Notably, an ALJ could authorize service by another method if this proceeding was a wage claim subject to the provisions of ORS 652.332(1), which states that service in those cases ‘shall be made in the same manner as service of summons or by certified mail.’ See OAR 839-050-0030(1) (including an exception to the service requirements ‘as otherwise provided in ORS 652.332(1)’). Since this case involves Formal

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“Respondent [Oregon Truck]

“The forum must also first examine whether [Oregon Truck] was properly served with the Formal Charges. The Agency argues that it sufficiently served process on [Oregon Truck] when it served copies on Oregon’s Secretary of State after its first attempt to serve [Oregon Truck] by mail was returned as undeliverable. “[Oregon Truck] is a dissolved Oregon corporation. (Ex. A.) ORS 60.121 provides for service of notice on a corporation as follows:

(1) The registered agent appointed by a corporation shall be an agent of the corporation upon whom any process, notice or demand required or permitted by law to be served upon the corporation may be served. (2) The Secretary of State shall be an agent of a corporation including a dissolved corporation upon whom any such process, notice or demand may be served whenever the corporation fails to appoint or maintain a registered agent in this state or whenever the corporation’s registered agent cannot with reasonable diligence be found at the registered office.

(Emphasis added.) [Bowman] is identified as [Oregon Truck’s] registered agent. (Ex. A.) Bowman could not be located at the corporation’s registered office and he currently resides in California. (Exs. F, K) Accordingly, the Secretary of State was ‘an agent’ of [Oregon Truck] for the purpose of serving of the NOH and Formal Charges. “The procedure for serving the Secretary of State is as follows:

(a) Serving the Secretary of State or a clerk on duty at the office a copy of the process, notice or demand, with any papers required by law to be delivered in connection with the service, and the required fee for each party being served or by mailing to the office a copy of the process, notice or demand and the required fee for each party being served by certified or registered mail; (b) Transmittal by the person instituting the proceedings of notice of the service on the Secretary of State and copy of the process, notice or demand and accompanying papers to the corporation being served by certified or registered mail:

Charges brought by BOLI’s Civil Rights Division, the exception in ORS 652.332(1) is not in play and, accordingly, the rules in ORCP 7D(6)(a) pertaining to the alternative methods of service of summons do not apply.

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(A) At the last registered office of the corporation as shown by the records on file in the office of the Secretary of State; and (B) At such address the use of which the person initiating the proceedings knows or, on the basis of reasonable inquiry, has reason to believe is most likely to result in actual notice;10 and

(c) Filing with the appropriate court or other body, as part of the return of service, the return receipt of mailing and an affidavit of the person initiating the proceedings stating that this section has been complied with.

ORS 60.121(3). The Agency demonstrated that it complied with section (a) above. (Exs. G, L) However, the record does not include evidence that the Agency completed the steps in sections (b)(A), (b)(B) and (c).11 Accordingly, the Agency is directed to supplement the record with evidence demonstrating that it satisfied the requirements of sections (b)(A), (b)(B) and (c) as to [On Time]. The forum will defer ruling on the motion for default

against [Oregon Truck] until this evidence is filed with the forum and served on all the parties at their last known addresses. “Respondent [On Time] “The Agency argues that it sufficiently served process on [On Time] when it served copies on Oregon’s Secretary of State after its first attempt to serve [On Time] by mail was returned as undeliverable. [On Time] is a dissolved Oregon limited liability company. (Ex. B.) ORS 63.121 provides for service of notice on a limited liability company and contains the exact same service requirements that were described above as to ORS 60.121. Marin is identified as [On Time’s] registered agent and she could not be located at the LLC’s registered office. (Exs. B, F) Accordingly, the Secretary of State was ‘an agent’ of On Time for the purpose of serving of the NOH and Formal Charges. “The Agency’s motion demonstrated that it complied with section (a) of ORS 63.121. (Exs. G, L) However, the record does not include evidence that the Agency completed the steps in sections (b)(A), (b)(B) and (c). Accordingly, the Agency is directed to supplement the record with evidence demonstrating that it satisfied the requirements of sections (b)(A), (b)(B) and (c) as to [Oregon Truck]. The forum will defer ruling on the motion for

default against [Oregon Truck] until this evidence is filed with the forum and served on all the parties at their last known addresses.

10 Since the Agency has Bowman’s address in California, a copy sent to him by registered or certified mail at that address would be “most likely to result in actual notice.” 11 It is possible that this information may be in the forum’s file. However, the ALJ declines to rule on evidence that is not included with the motion as it would not have been served on the parties who are allegedly in default. OAR 839-050-0030(2), (3).

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“Service of Agency’s Recent Filings “The forum notes that the last page of the Agency’s motion contains a ‘Certificate of Service’ reflecting that the motion was served on Bowman only. The certificate does not indicate that the Agency sent copies of the motion to [Oregon Truck], [On Time], or Marin at their last known addresses. As well, it does not appear that the Case Summary and postponement motion recently filed by the Agency were served on those parties. The Agency is instructed to mail copies of all filings that omitted service to some Respondents to the ‘last known address’12 of these Respondents as required by OAR 839-050-0030(2), (3), and to file an Amended Certificate of Service with the forum reflecting that this has been accomplished. Additionally, any future filings must be in compliance with OAR 839-050-0030(2), (3). A ruling as to the

remainder of the Agency’s Amended Motion for Default and the postponement motion will not be made until this has been accomplished.


(Exs. X19, X22) (Emphasis in original.) 14) The Agency timely submitted its case summary on August 29, 2017. The Agency filed an Amended Case Summary on March 16, 2018. (Exs. X20, X33) 15) On August 20, 2017, the Agency filed a postponement motion. The forum issued an interim order ruling on the motion on September 5, 2017, which stated, in pertinent part:

“Ruling on Motion

“The Agency filed a Motion for Postponement on August 30, 2017, requesting a postponement of the hearing because the Agency recently received information that there is a successor in interest who must be joined as a party.13 On September 1, 2017, Respondent Richard Bowman indicated by email that he did not oppose the postponement. (The remaining Respondents have either not been served or are in default.) Accordingly, the Agency’s motion is GRANTED. “The Agency is directed to file its Amended Formal Charges no later than Friday, September 8, 2017. The Agency must also submit a status report

12 On April 13, 2017, a resident at 1463 SE Oak Grove Blvd., Portland, OR 97267-1070 informed a process server that Marin resided at that location as of that date. (Ex. I) Accordingly, that is her last known address and correspondence directed to her should be mailed to that address. 13 The Agency further represented that it had amended the Formal Charges to add this new party. However, the Agency has not yet filed Amended Formal Charges with the forum. Accordingly, in making this ruling, the forum does not have sufficient information to determine whether the necessary steps have been completed to add an additional respondent and bring formal charges against the alleged successor in interest. See, e.g. ORS 659A.835(3), 659A.845 (1); OAR 839-003-0040(2); Body Imaging, P.C. v. Bureau of Labor & Indus., 166 Or App 54, 66, 999 P2d 475 (2000).

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within 30 days which describes the status of service upon all of the

Respondents in this case. “Service of Agency’s Motion “The forum notes that the last page of the Agency’s motion contains a ‘Certificate of Service’ reflecting that the motion was served on Bowman only. The certificate does not indicate that the Agency sent copies of the motion to [On Time], [Oregon Truck], or Marin at their last known addresses. The Agency is instructed to mail copies of all filings that omitted service to some Respondents to the ‘last known address’14 of these Respondents as required by OAR 839-050-0030(2), (3), and to file an Amended Certificate of Service with the forum reflecting that this has been accomplished. Additionally, any future filings must be in compliance with OAR 839-050-0030(2), (3).


(Exs. X21, X23) (Emphasis in original.) 16) On October 31, 2017, the forum issued an interim order which stated as follows:

“In the forum’s Interim Order of August 31, 2017, the Agency was instructed to supplement the record with evidence demonstrating that all of the Respondents were served with the Notice of Hearing and Formal Charges. As of this date, the Agency has not complied with that instruction and the record does not include documentation establishing that Respondents Oregon Truck Painting, LLC, On Time Painting, Inc. and Amanda Marin were served. On September 5, 2017, the forum granted the Agency’s motion to postpone the hearing indefinitely so that the Formal Charges could be amended to add an additional Respondent. Subsequently, the Agency submitted a status report stating that the Agency is unable to amend the Formal Charges and requesting that the hearing be rescheduled. “In a case in which all Respondents have been served, the ALJ is able to contact the parties to request their availability for a new hearing date and issue an interim order scheduling the hearing for a date convenient to all parties. However, as previously indicated, the record in this case does not reflect whether three out of the four Respondents were served. (See Interim Order of 8/31/2017 re Amended Motion for Default, pp. 3, 6-7) Accordingly, the Agency is instructed to supplement the record with proof of service as to all named Respondents no

14 On April 13, 2017, a resident at 1463 SE Oak Grove Blvd., Portland, OR 97267-1070 informed a process server that Marin resided at that location as of that date. Accordingly, that is her last known address and correspondence directed to her should be mailed to that address.

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later than November 7, 2017. Once that is filed, the parties will be contacted to

set a new hearing date. “If the Agency does not submit proof of service by November 7, 2017, the ALJ will instruct the Contested Case Coordinator to issue Amended Notices of Hearing to all parties with a new hearing date. Alternatively, the Agency may also choose to dismiss the Formal Charges against any or all parties who have not been served, and the case can proceed to hearing against Respondent Richard Bowman only.”

(Exs. X24, X25) 17) On November 7, 2017, the Agency submitted a case status report with an update to the forum as to the status of service on On Time, Oregon Truck and Marin. The forum issued an interim order supplementing the rulings in the forum’s interim order of August 31, 2017, which stated, in pertinent part:

“RESPONDENT [ON TIME]

“The Agency submitted proof that it met the requirements of ORS 60.121(3)(a)

and (b) for serving Oregon’s Secretary of State. However, ORS 60.121(3)(c) requires, among other things, the filing of ‘the return receipt of mailing.’ The Agency provided a copy of the payment receipt showing that the fee for the certified mail was submitted and the item was mailed. However, it has not yet filed the return receipt postcard that the statute requires.15 Accordingly, service upon [On Time] is not yet complete.

“RESPONDENT [OREGON TRUCK] “The Agency submitted evidence that it satisfied the requirements of ORS

63.121(3)(a) and (b) for serving Oregon’s Secretary of State. However, ORS 63.121(3)(c) requires, among other things, the filing of ‘the return receipt of mailing.’ The Agency’s exhibits included a copy of the payment receipt showing that the fee for the certified mail was submitted and the item was mailed. However, it has not yet filed the green return receipt postcard that the statute requires. Accordingly, service upon [Oregon Truck] is not yet complete.

“MARIN “The Agency asserts that the forum should conclude that ‘an address on

15 The forum takes official notice that a “return receipt” is a green postcard labeled “PS Form 3811.” See https://about.usps.com/postal-bulletin/2015/pb22427/html/updt_004.htm; In the Matter of Soapy's, Inc., 14 BOLI 86, 87-88 (1995) (referencing a certified mail return receipt labeled as “PS Form 3811”). See also Ayres v. Bd. of Parole & Post Prison Supervision, 194 Or App 429, 438, 97 P3d 1, 7 (2004) (taking judicial notice of US Postal Service procedures).

https://about.usps.com/postal-bulletin/2015/pb22427/html/updt_004.htm

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file with the Secretary of State must be an official, valid address where a party may be reached or served.’ The forum is unable to reach that conclusion because OAR 839-050-0030(1) provides that service of a charging document is complete upon (a) mailing to a party’s ‘correct address’ or (b) ‘receipt by the party.’ There is no evidence on the record of a mailing to Marin’s ‘correct address’ or that she actually received the Formal Charges. Accordingly, the forum cannot find her in default.

“RESCHEDULING HEARING DATE “The parties are instructed to email the ALJ * * * with dates the parties are

available for hearing between December 2017 and March 2018, no later than Monday, November 20, 2017, by 5:00 p.m. The ALJ will then issue an interim

order with a new hearing date. “IT IS SO ORDERED.”

(Exs. X26, X27) 18) The forum’s interim order of November 13, 2017, directed the parties to email the ALJ with dates the parties are available for hearing no later than Monday, November 20, 2017, by 5:00 p.m. The Agency responded by email with dates the Agency is available for hearing. No other party responded. Accordingly, the forum reset the hearing to begin on Tuesday, March 20, 2018, at 9:00 a.m., one of the dates provided by the Agency. (Ex. X29) 19) On February 28, 2018, the forum issued an interim order reminding the parties that the forum had previously concluded that service had not been completed upon On Time, Oregon Truck and Marin. Because the matter was scheduled for hearing on March 20, 2018, the forum instructed the Agency to supplement the record to include further efforts to serve On Time, Oregon Truck and Marin no later than Tuesday, March 6, 2018.16 (Ex. X30)

20) On March 6, 2018, the Agency filed a Renewed Motion for Default and Status Regarding Service on Respondents. The motion requested that the forum find that On Time, Oregon Truck and Marin were served and are in default. No responses to the motion were filed. The forum issued an interim order ruling on the renewed motion for default which stated, in pertinent part:

16 ORS 183.415(2) of the Oregon Administrative Procedures Act (“APA”) requires state agencies to serve notices of contested case hearings on the parties “personally or by registered or certified mail.” See also OAR 839-050-0030(1). The forum is unable to find that a respondent committed the violations alleged in the charging document if service was not completed on them and the requirements of the APA were not met. See, e.g., Liu v. Portland State Univ., 281 Or App 294, 307, 383 P3d 294 (2016), rev den, 361 Or 486 (2017); Murphy v. Oregon Med. Bd., 270 Or App 621, 628-32, 348 P3d 1173 (2015).

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“Ruling on the Agency’s Motion

“* * *

“OAR 839-050-0130(4) requires that ‘a party must file an answer within 20 days after service of the [Formal Charges].’ OAR 839-050-0030(1), describes the methods of serving Formal Charges and states, in pertinent part:

‘* * * [T]he charging document [in a BOLI contested case] will be served on the party or the party's representative by personal service or by registered or certified mail. Service of a charging document is complete upon the earlier of:

‘(a) Receipt by the party or the party's representative; or ‘(b) Mailing when sent by registered or certified mail to the correct address of the party or the party's representative.”

“OAR 839-050-0330(1)(a) provides that default may occur when ‘[a] party fails to file a required response, including * * * an answer, within the time specified in the [Formal Charges].’

“RESPONDENT [ON TIME] “The Agency first argues that service upon Oregon’s Secretary of State was complete as to [On Time]. For the reasons set forth in the forum’s previous interim orders, the forum concludes that service upon the Secretary of State was not completed as to [On Time]. “Secondly, the Agency asserts that [On Time] is in default because the Agency personally served Bowman. The Agency included documentation from the website of Oregon’s Secretary of State dated May 23, 2017, identifying Bowman as the Registered Agent and President of [On Time]. OAR 839-050-0030(1) requires service to be made ‘on the party or the party’s representative by personal service or by registered mail.’ Service is complete upon ‘[r]eceipt by the party or the party’s representative.’ OAR 839-050-0030(1)(a). As the registered agent of [On Time], personal service upon Bowman on April 13, 2017, constituted service upon [On Time]. ORS 60.121(1) (‘The registered agent appointed by a corporation shall be an agent of the corporation upon whom any process, notice or demand required or permitted by law to be served upon the corporation may be served.’) Because [On Time] has not yet filed an answer, it is in default and the Agency’s motion as to [On Time] is GRANTED.

“RESPONDENT [OREGON TRUCK] “The Agency also argues that service upon Oregon’s Secretary of State

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was complete as to [Oregon Truck], an argument addressed in the forum’s previous interim orders. Accordingly, the forum concludes that service upon the Secretary of State was not completed as to [Oregon Truck]. “Secondly, the Agency asserts that [Oregon Truck] is in default because the Agency personally served Bowman, who was identified as a manager of [Oregon Truck] on the website of Oregon’s Secretary of State dated March 7, 2017. ‘Each manager [of a limited liability company] is an agent of the limited liability company for the purpose of its business.’ ORS 63.140(2)(a). Accordingly, personal service upon Bowman on April 13, 2017, constituted service upon [Oregon Truck]’s ‘representative’ under OAR 839-050-0030(1)(a). Because [Oregon Truck] has not yet filed an answer, it is in default and the Agency’s motion as to [Oregon Truck] is GRANTED.

“MARIN “The Agency’s arguments regarding service on Marin repeat arguments made in the Agency’s prior motions and the forum declines to revisit those issues.17 The ALJ does not have the legal authority to order a different manner of service than that required by Oregon statutes and BOLI’s contested case rules. Therefore, the motion requesting default against Marin is DENIED.

“Notice of Default

“Relief from default may be granted if [On Time] and [Oregon Truck] show good cause, within ten days after the date of this order, for failing to timely file an answer. A request for relief must be in writing and accompanied by a written statement, together with appropriate documentation, setting forth the facts supporting the claim of good cause. OAR 839-050-0340. Any document filed by [On Time] or [Oregon Truck] should be submitted by an attorney or should be filed together with a statement indicating that the person filing the document is an authorized representative of the party. See OAR 839-050-0110(1), (2). IT IS SO ORDERED.”

(Exs. X31, X32)

17 As previously stated in the forum’s interim order of August 31, 2017, an ALJ could authorize service by another method if this proceeding was a wage claim subject to the provisions of ORS 652.332(1), which states that service in those cases “shall be made in the same manner as service of summons or by certified mail.” See OAR 839-050-0030(1) (including an exception to the service requirements “as otherwise provided in ORS 652.332(1)”). Since this case involves Formal Charges brought by BOLI’s Civil Rights Division, the exception in ORS 652.332(1) does not apply. Accordingly, the rules in ORCP 7D(6)(a) pertaining to the alternative methods of service of summons do not apply to this proceeding.

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21) On March 14, 2018, the ALJ emailed the Agency and Bowman18 with the following statement:

“These two matters have not yet been officially consolidated by the forum. If any party objects to the consolidation of the cases, please reply to this email no later than 5:00 p.m. tomorrow, March 15, 2018. If I do not receive any objections, I

will issue an interim order consolidating Case Nos. 32-17 and 33-17.”

Ms. Ortega responded, stating that the Agency did not object. Bowman asked a question by email that was unrelated to the issue of consolidation, but did not respond as to whether or not he objected to having the cases consolidated for hearing. The ALJ issued an interim order on March 19, 2018, stating that Case Nos. 32-17 and 33-17 involve the same parties and common issues of fact regarding the termination of Complainant and determining that the cases would be consolidated into a single hearing, pursuant to OAR 839-050-0190. (Exs. X34, X35)

22) Bowman did not appear at the hearing and did not notify the Agency or the ALJ that he would not appear at the time and place set for hearing. The ALJ waited until after 9:30 a.m., then declared Bowman in default and commenced the hearing. (Hearing record) 23) At the start of hearing, the ALJ orally informed the participants who were present of the issues to be addressed, the matters to be proved and the procedures governing the conduct of the hearing. (Hearing Record) 24) When the hearing commenced as scheduled on March 20, 2018, Administrative Prosecutor Adriana Ortega notified the forum that Complainant was experiencing a panic attack and could not appear to testify that day. The Agency asked to proceed with the remainder of its witnesses, but to take a recess and reconvene on another day. The ALJ did not rule on the Agency’s request, subject to receiving additional information from the Agency. The hearing went into recess. On March 20, 2018, the forum issued an interim order instructing the Agency to notify the ALJ by email of dates and times during the current calendar week when the Agency and Complainant are available to reconvene the hearing. The interim order further stated that “[i]f Complainant is not able to testify this week, the Agency must provide a medical note * * *. If the Agency does not provide a medical note or dates of availability by 5:00 p.m. on Thursday, March 22, 2018, the evidentiary record will be closed.” Additionally, the interim order stated that the Agency would be provided with the opportunity to make a closing argument based on the evidence in the record.” (Ex. X36; Hearing Record) 25) On March 21, 2018, the Agency informed the forum that Complainant was available to give testimony on Friday, March 23, 2018 at 11:00 a.m. The forum issued an interim order stating that the hearing would reconvene at 11:00 a.m. on Friday,

18 The forum did not have email addresses for the other respondents. Additionally, at that time, Marin had not yet been served and Oregon Truck and On Time were in default.

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March 23, 2018, and the hearing resumed at that date and time. (Ex. X37; Hearing Record) 26) Pursuant to OAR 839-050-0250(9), the forum issued an interim order on March 21, 2018, requiring the Agency to submit an addendum to its Case Summary and Amended Case Summary with copies of the following documents:

The Notices of Substantial Evidence Determination referenced on the second pages of the Formal Charges in BOLI Case Nos. 32-17 and 33-17.

Complainant’s Workers’ Compensation claim and determination referenced in Paragraph IV.3. of the Formal Charges in BOLI Case No. 33-17.

Complainants’ payroll records and W2 statements that Complainant and/or the Agency have in their possession for the time period of August 13, 2015 – December 4, 2015. (The Agency was not required to request any documents from Respondents, but to provide documents in the possession of the Agency or Complainant.)

The interim order required the case summary addendum to be filed in advance of the testimony of Complainant, scheduled for Friday, March 23, 2018, at 11:00 a.m. When the hearing resumed on March 23, 2018, the Agency submitted a copy of the Notice of Substantial Determination marked as Exhibit A12, but requested additional time to submit the remaining documents. The ALJ granted the Agency’s request on the record and required the Agency to submit the following documents by Friday, March 30, 2018:

Complainant’s Workers’ Compensation 801 injury claim form for the claim referenced in Paragraph IV.3. of the Formal Charges in BOLI Case No. 33-17.

Complainants’ payroll records and W2 statements that Complainant and/or the Agency have in their possession for the time period of August 13, 2015 – December 4, 2015.

The Agency timely filed its addendum on March 30, 2018, and the evidentiary record closed. (Exs. 38-X40A) 27) The Agency requested to present its closing argument after the record closed. The ALJ orally granted the request on the record and further required the Agency to submit its closing argument in writing. The Agency filed its written closing argument on March 30, 2018. (Hearing Record; Ex. X44) 28) The forum issued protective orders on April 4 and 9, 2018, protecting the confidentiality of Complainant’s medical records and records received from Oregon’s Unemployment Department. (Exs. X41- X43)

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29) On November 9, 2018, the ALJ issued a proposed order that notified the participants they were entitled to file exceptions to the proposed order within ten days of its issuance. No exceptions were filed.


1) Bowman hired Complainant to work for On Time to perform auto body and paint work on semitrucks at 4051 NE Columbia Blvd, Portland, Oregon. Complainant worked for On Time from August 13, 2015, to December 4, 2015. Approximately 15 years prior to that, Complainant worked for Bowman at another business for about one year as a shop foreman. Prior to his termination, Complainant had worked in the auto body and paint industry for 25 years. When performing his work, Complainant wore a mask over his mouth to protect himself from dust in the air. (Testimony of Complainant, E. Twigger; Ex. A8) 2) When Complainant first started his position in August of 2015, the working conditions were initially tolerable, but then deteriorated rapidly. On Time installed a new machine to distill paint, a process that separated chemicals and made paint thinner. However, the new machine was never properly installed, causing paint fumes to blow around in the air. Complainant confronted Bowman about the working conditions. Bowman told him the problem would be fixed and the machine would be correctly installed. Complainant cut a screen in the wall of the room so that some outside air would come into the paint room. On Time never correctly installed the distilling machine with proper ventilation. (Testimony of Complainant) 3) In September of 2015, Complainant felt nauseous while working in the paint room. Another worker took over his duties and he went home. He vomited. He initially thought his symptoms would go away, but he felt worse. At the encouragement of his wife, he went to the hospital to seek medical treatment. He filed a workers’ compensation claim for injuries sustained as a result of inhaling paint fumes; the claim was accepted. Complainant was off work for approximately one month. (Testimony of Complainant, E. Twigger; Exs. A13, A14) 4) While Complainant was out on workers’ compensation leave, Bowman asked him to come back to work. Complainant did not want to go back to the work in the same environment that made him sick. However, Bowman told him that the ventilation problem had been fixed and offered Complainant a raise of $2 per hour if he returned to work. Complainant returned to work on November 9, 2015. (Testimony of Complainant) 5) Within a few days of Complainant returning to work, Marin began helping Bowman run the business. Complainant understood that Marin and Bowman would be partners, but that Bowman would be out of town and Marin would be onsite. Marin was the boss and would run the business when Bowman was not there. The business stayed open while this transition occurred and operated at the same location. The same equipment was used. The same employees worked at the business. The

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business name did not change while Complainant worked there. Oregon Truck filed Articles of Incorporation with Oregon’s Secretary of State on November 16, 2015. Marin was identified as the “Registered Agent” and “Member,” and Bowman was listed as the “Manager” of Oregon Truck. The address on file with the Secretary of State is the same address as the location of On Time. (Testimony of Complainant; Exs. A6, A7) 6) After he returned to work, Complainant expressed concern to Bowman, Marin and Marin’s husband that the ventilation system in the paint room was not working and that the workers were forced to paint in there anyway. Complainant refused to work in that area and he came to an agreement with Marin that he would work out in the common area, away from the paint room. (Testimony of Complainant) 7) On December 4, 2015, Complainant was sanding a truck out in the common area and he noticed that the doors to the paint room were propped open with garbage cans to ventilate the air in the paint room. He observed that the paint spray and fumes were so thick that the painters in the paint room could not see. When the doors were propped open, paint fumes entered the room where Complainant was working. He took pictures of the distiller machine because it was still not being ventilated. The photographs show a fog in the paint room and one of Complainant’s coworkers standing in the doorway with his hand covering his mouth and nose. (Testimony of Complainant; Ex. A11) 8) Complainant did not know what to do. He sent the photographs to his wife, Elizabeth Twigger (“E. Twigger”), with his cell phone and asked for her advice. She had previously told Complainant that he should contact OSHA to report the working conditions, but Complainant had never done so because Bowman had promised to fix the problem. E. Twigger told Complainant that the working conditions were unacceptable and that he should not have to work under those conditions anymore. After their call ended, E. Twigger called OSHA. OSHA inspectors arrived within a half hour. (Testimony of Complainant; Exs. A9, A10) 9) Complainant was scared because he had previously been sick from the fumes and then had come back to work and was put in the same poor working conditions. (Testimony of Complainant) 10) He called his wife back and told her that OSHA inspectors were at the worksite. (Testimony of Complainant) 11) While the OSHA inspectors were reviewing the conditions in the workplace, Marin instructed the employees to go outside so that they would not talk to the inspectors. Immediately after the investigation concluded and the inspectors left, Marin walked over to Complainant with an envelope. She told him that OSHA had just been there and issued fines. She said that since Complainant was the highest paid worker, he was terminated immediately and handed him his paycheck. She did this in

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front of all of Complainant’s coworkers. (Testimony of Complainant) 12) Complainant was in shock after Marin terminated him. He had only wanted the ventilation problem to be fixed. After he took some quiet time to collect himself, he called Bowman. Based on their history and friendship, Complainant assumed that Bowman would back him up and straighten out the situation right away. It was obvious to Complainant that Marin had already talked to Bowman about his termination. Bowman told Complainant that he was leaving the decision to Marin. Complainant told Bowman that it was not right for him to be punished when the working conditions were not correct and that he was not the person who called OSHA. Bowman swore at Complainant and told him, “We know it was you” who called OSHA. (Testimony of Complainant) 13) Complainant was upset because he felt certain that Bowman would back him up. He had previously felt that Bowman liked him and that he was a valuable employee. The termination devastated him. His family went from two incomes down to one. He was terminated right before Christmas. He and his wife had to return gifts for the family that had been placed on layaway. The family downsized from a larger home to a smaller one that they could afford. (Testimony of Complainant) 14) After the termination, Complainant developed anxiety and began taking medication for that condition. He suffers from depression and high blood pressure. He sometimes becomes panicked and cannot leave the house. When he feels overwhelmed and panicked, it is like a “drum pounding” in him and he just wants to run. He relies on his wife to manage his medication and help him cope with stressful situations. (Testimony of Complainant, E. Twigger) 15) Complainant tried looking for work following his termination, but was in a depression. Labor Ready offered him a position “pushing a broom” in a warehouse, but his body could no longer do the work. He only worked for one pay period. He has problems with endurance walking. He lost 60 pounds of weight because of a lack of appetite because of his anxiety and depression. His problems with his body and walking were caused by his other health problems, and were not related to his termination. (Testimony of Complainant) 16) The auto body and paint industry is a small community and the “top end guys” all know each other. People in the industry approached him after his termination and told him they heard that he was referred to as the “bad guy” that caused On Time to be fined by OSHA. In his 25 years in the field, he had never had to deal with this type of situation. He did not apply for another position in the industry. (Testimony of Complainant, E. Twigger) 17) On February 3, 2016, OSHA issued a citation to “Richard T. Bowman, President, On Time Painting Inc[.]” for several violations that the inspectors observed on December 4, 2015. The citation referenced several violations of subsections of OAR 437-002-0107. (Ex. A10).

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Credibility Findings 18) All of the witnesses were credible, with two exceptions:

E. Twigger occasionally testified about matters on which she lacked personal knowledge regarding what Complainant told her happened at work. Whenever her testimony conflicted with Complainant’s recollection of events of which he had personal knowledge, the forum disregarded E. Twigger’s testimony.

In Complainant’s written BOLI complaints, he stated that that in the telephone call after his termination, Bowman said, “damn it Richard, they [OSHA] are here because of you.” However, he testified at hearing that in that telephone conversation Bowman said “fuck” and that he knew Bowman was the person who reported to OSHA. Accordingly, the forum concludes that Bowman swore at Complainant, but it cannot draw a conclusion as to the exact words used.

(Testimony of Complainant, E. Twigger; Exs. A1, A2)

CONCLUSIONS OF LAW

1) At all times material herein, On Time was a corporation subject to the provisions of ORS 654.062 and was an employer as defined in ORS 659A.001(4). Complainant was an employee as defined in ORS 654.005(4). 2) The actions, statements and motivations of Bowman and Marin are properly imputed to On Time. In the Matter of Leo Thomas Ryder dba Leo’s BBQ Bar & Grill, 34 BOLI 67, 73 (2015). 3) On Time violated ORS 654.062(5) and OAR 839-004-0016(1) when it terminated because he opposed unsafe working conditions and caused a complaint to be made to OSHA. 4) Oregon Truck is liable for On Time’s violation of ORS 654.062(5) and OAR 839-004-0016(1) as a successor employer, pursuant to OAR 839-004-0003(3)(c). 5) Complainant, acting in good faith and while employed by On Time, reported information that he believed was evidence of a violation of a state rule to Bowman, Marin and his wife. 6) On Time, acting through Marin and Bowman, terminated Complainant, because of his good faith reports about the poor ventilation in the paint room, thereby violating ORS 659A.199 and OAR 839-010-0100(1). 7) At all times herein, Bowman was an individual and a “person” under ORS

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659A.001(9)(a) and ORS 659A.030(1)(g). 8) Bowman aided and abetted On Time in its violation of ORS 659A.199 and OAR 839-010-0100(1), thereby violating ORS 659A.030(1)(g). 9) The Commissioner of the Bureau of Labor and Industries has jurisdiction of the persons and of the subject matter herein. ORS 659A.800 - ORS 659A.865. 10) Pursuant to ORS 659A.850, the Commissioner of the Bureau of Labor and Industries has the authority under the facts and circumstances of this case to award Complainant damages for emotional and mental suffering sustained and to protect the rights of Complainant and others similarly situated. The sum of money awarded and the other actions required of On Time in the Order below are an appropriate exercise of that authority.

OPINION

RESPONDENT MARIN Marin was not properly served with the Formal Charges in Case Nos. 32-17 and 33-17. (See Findings of Fact ##13, 17, 20) Accordingly, the Agency cannot proceed with the charges against her. See ORS 183.415(2); OAR 839-050-0030(1). CASE NO. 32-17 On Time violated ORS 654.062(5) and OAR 839-004-0016(1), (2). The Agency alleges that On Time unlawfully “retaliated against Complainant by terminating his employment on the basis of Complainant’s opposition to and reporting of hazardous working condition in violation of ORS 654.062(5)-(6),” the Oregon Safe Employment Act (OSEA). The Formal Charges further allege that Oregon Truck is a successor employer of On Time and, pursuant to OAR 839-004-0003(3)(c), Oregon Truck is also responsible for On Time’s violations. ORS 654.062 provides, in pertinent part:19

“(5) It is an unlawful employment practice for any person to bar or discharge from employment or otherwise discriminate against any employee or prospective employee because the employee or prospective employee has:

(a) Opposed any practice forbidden by ORS 654.001 (Short title) to 654.295 (Application of Oregon Safe Employment Act), 654.412 (Definitions for ORS 654.412 to 654.423) to 654.423 (Use of physical force by health care employee in self-defense against assault) and

19 The Agency also asserts that On Time violated ORS 654.062(6). However, that subsection provides the authority for an employee to file a complaint of a violation of ORS 652.062(5) with BOLI or in court, and as such, is not an unlawful practice. Accordingly, the forum will address only the applicable portions of ORS 654.062(5).

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654.750 (Definitions for ORS 654.750 to 654.780) to 654.780 (Providing basic information to employees); [or] (b) Made any complaint or instituted or caused to be instituted any proceeding * * * under or related to ORS 654.001 * * * to 654.295 * * *, 654.412 * * * to 654.423 * * * and 654.750 * * * to 654.780[.]”

OAR 839-004-0016 states, in pertinent part:

“(1) ORS 654.062(5) prohibits discrimination against an employee or prospective employee (‘individual’) because the individual:

(a) Made any complaint or instituted or caused to be instituted any proceeding under or related to the Oregon Safe Employment Act (OSEA); * * * (c) Exercised on behalf of the individual or others any right afforded by OSEA; (d) Engaged in a practice provided for by OSEA; or (e) Opposed any practice prohibited by OSEA or which the individual in good faith believed was prohibited by OSEA; or (f) Is perceived to take any actions described in subsections (a) through (e) of this rule.

(2) ORS 654.062(5) does not state to whom or in what manner an individual must oppose a practice in order to be protected from discrimination. Protected actions include the individual communicating opposition to practices prohibited by OSEA or which the individual in good faith believes are prohibited by OSEA to anyone, including but not limited to:

(a) Coworkers; (b) Employers; and (c) Newspapers and other media.”

When a respondent defaults in a case in which the Agency has issued Formal Charges, the Agency need only establish a prima facie case to support the allegations of its charging document in order to prevail. In the Matter of Leo Thomas Ryder dba Leo's BBQ Bar & Grill, 34 BOLI 67, 74 (2015). To prevail in a claim under ORS 654.062, the Agency must prove by a preponderance of credible evidence that: (1) Complainant was an employee who opposed, complained about or caused a complaint

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to be instituted about conduct forbidden under or related to the OSEA; (2) Respondent subjected Complainant to an adverse employment action; and (3) there is a causal connection between Respondent’s adverse employment action and Complainant’s opposition to practices forbidden under or related to OSEA. In the Matter of Trees, Inc., 28 BOLI 218, 247 (2007). ORS 654.005 provides, in pertinent part:

“As used in this chapter, unless the context requires otherwise: “* * *

(4) “Employee” includes:

(a) Any individual * * * who engages to furnish services for a remuneration, financial or otherwise, subject to the direction and control of an employer.

“* * *

(c) Any individual who is provided with workers’ compensation coverage as a subject worker pursuant to ORS chapter 656, whether by operation of law or by election.

“(5) ‘Employer’ means any person who has one or more employees * * *.” The evidence established that Complainant performed paint and body work for On Time and, thus, was an employee. On Time was an employer that employed Complainant and other workers. Complainant informed Bowman that a machine was not properly setup and told Marin that he would not work in those conditions. Additionally, after he spoke to his wife about safety concerns, his statements to her caused her to contact OSHA to express concerns about the safety. The painting practices opposed by Complainant were forbidden under several portions of OAR 437-002-0107, a regulation that implemented ORS 654.025(2) and 654.001-654.295. Accordingly, the Agency established Element 1 of the prima face case. With respect to Element 2, the evidence established that On Time terminated Complainant’s employment. The following facts demonstrate a causal connection between Complainant’s opposition and his termination:

Marin terminated Complainant immediately after OSHA inspectors came to the premises.

Marin told Complainant that she was terminating him because the business had

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multiple citations to pay and Complainant was the highest paid employee.

When Complainant called Bowman to talk about the termination, Bowman was angry and told him, “We know it was you [who called OSHA].”

Accordingly, the Agency established all of the elements of the prima facie case and the forum finds that On Time violated ORS 654.062(5) and OAR 839-004-0016(1), (2). Oregon Truck is a Successor Employer to On Time. The Agency also asserts that Oregon Truck is liable a successor employer to On Time, pursuant to OAR 839-004-0003(3)(c). BOLI regulations include the following in its definition of an employer:

“Any successor or assignee of an employer. As used in this paragraph, ‘successor’ means a business or enterprise that is substantially the same entity as the predecessor employer according to criteria adopted by the Oregon Department of Consumer and Business Services in OAR 437-001-0015.”

The pertinent portion of OAR 437-001-0015 provides:

“For purposes of this definition and ORS 654.005(5)(c), a business or enterprise is substantially the same entity as the predecessor employer if: “(A) A majority of the current business or enterprise is owned by the former owners or their immediate family members, and “(B) One or more of the following criteria exist for both the current and predecessor business or other enterprise:

(i) Substantially the same type of business or enterprise. (ii) Similar jobs and working conditions. (iii) A majority of the machinery, equipment, facility, or methods of operation. (iv) Similar product or service. (v) A majority of the same supervisory personnel. (vi) A majority of the same officers and directors.

NOTE: Not every element needs to be present for an employer to be a successor. The cumulative facts will determine the employer’s status.”

The forum concludes that the following facts, taken cumulatively, demonstrate

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that Oregon Truck is a successor employerof On Time:

Both businesses performed auto body repair and painting.

The businesses operated at the same location.

The machinery and equipment assets of On Time were transferred to Oregon Truck.

Workers performed the same type of jobs.

Bowman was identified as a manager of both On Time and Oregon Truck. 20 Accordingly, Oregon Truck is liable as a successor employer.

The Agency Did Not Establish a Violation of ORS 659A.030(1)(f). The Agency also asserts a violation under ORS 659A.030(1)(f), asserting that On Time “unlawfully retaliated against Complainant by terminating his employment on the basis of Complainant’s opposition to Respondent’s unlawful practices.” As stated above, On Time committed an unlawful employment practice when it terminated Complainant’s employment. However, he was not terminated because he “opposed” the termination.21 Accordingly, the Agency did not establish a violation of ORS 659A.030. CASE NO. 33-17 On Time Violated ORS 659A.199 and OAR 839-010-0100(1).

The Agency asserts that On Time unlawfully retaliated against Complaint by terminating his employment on the basis of his protected whistleblowing activities in violations of ORS 659A.199(1) and OAR 839-010-0100(1). It further alleges that Bowman aided and abetted On time’s violations under ORS 659A.030(1)(g). ORS 659A.199(1) provides, in pertinent part:

“It is an unlawful employment practice for an employer to discharge * * * an employee * * * 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.”

OAR 839-010-0100(1), BOLI’s administrative rule interpreting ORS 659A.199, provides in pertinent part:

“ORS 659A.199 prohibits any employer with one or more employees in Oregon from discharging, demoting, suspending* * * an employee * * * for the reason that

20 The record is not clear as to when the business officially transitioned from On Time to Oregon Truck. However, On Time was Complainant’s employer at the time of his termination. (See Findings of Fact, ## 5, 17)) 21 The Agency did not address this alleged violation in its Closing Argument brief and the forum is unable to infer what other arguments or theories the Agency may have meant to assert under this statute.

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the employee has in good faith reported information to anyone that the employee believes is evidence of a violation of any state or federal law, rule or regulation.”

The Agency’s prima facie case consists of the following elements: (1) On Time was an employer as defined by statute; (2) On Time employed Complainant; (3) Complainant, in good faith, reported information to someone that he believed was evidence of a violation of a state rule; (4) On Time discharged Complainant; (5) On Time discharged complainant because of his report(s). In the Matter of Blue Gryphon, LLC, and Flora Turnbull, 34 BOLI 216, 233 (2015). The definition of employer for purposes of Civil Rights laws are contained within ORS 659A.001(4)(a). An “employer” is “any person who in this state, directly or through an agent, engages or uses the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed.” On Time’s President, Bowman, hired Complainant. Although On Time was in the process of transferring the business to Oregon Truck, that process had not completed during Complainant’s employment. Accordingly, the Agency established Elements 1 and 2 of the prima facie case. With respect to Element 3, under ORS 659A.199, an employee “reports” information when the employee communicates information to anyone that the employee believes is evidence of a violation of state law. In the Matter of Blue Gryphon, LLC, 34 BOLI at 233. Complainant told Bowman, Marin, Marin’s husband and his wife about the problems with the ventilation that he believed violation state law. Accordingly, this element was also established. As set forth above, the evidence also established that On Time terminated Complainant because of his reports. Accordingly, Elements 4 and 5 were satisfied and On Time violated ORS 659A.199 and OAR 839-010-0100(1). Bowman Aided and Abetted On Time’s Violation of ORS 659A.199 and OAR 839-010-0100(1).

ORS 659A.030(1)(g) provides that it is an unlawful employment practice “[f]or any person, whether an employer or employee, to aid, abet, incite, compel or coerce the doing of any of the acts of this chapter or to attempt to do so.” Aiding and abetting, in the context of an unlawful employment practice, means “to help, assist, or facilitate the commission of an unlawful employment practice, promote the accomplishment thereof, help in advancing or bring it about, or encourage, counsel or incite as to its commission.” In the Matter of Bravo Event Services, Inc., 36 BOLI _, __ (2018). A corporate officer and owner who commits acts rendering the corporation liable for an unlawful employment practice may be found to have aided and abetted the corporation's unlawful employment practice. Id.

As set forth above, On Time’s President, Bowman, refused to overturn Marin’s decision to terminate Complainant’s employment. He was angry and told Complainant

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that he knew Complainant had made the report to OSHA. Accordingly, the forum concludes that Bowman aided and abetted the harassment of Complainant and is in violation of ORS 659A.030(1)(g). As an aider and abettor, Bowman is jointly and severally liable with On Time for all of On Time’s unlawful employment practices. The Agency Did Not Establish a Violation of ORS 659A.030(1)(f). As in Case No. 32-17, the Agency also asserts a claim under ORS 659A.030(1)(f). For the same reasons discussed in the analysis of this claim in Case No. 32-17, the Agency did not establish a violation of ORS 659A.030 in Case No. 33-17.

DAMAGES Lost Wages Complainant is eligible for a back pay award because he was discharged in violation of ORS 10.090(1). ORS 659A.850. The purpose of a back pay award in employment discrimination cases is to compensate a complainant for the loss of wages and benefits the complainant would have received but for the respondent’s unlawful employment practices. In the Matter of Blue Gryphon, LLC, and Flora Turnbull, 34 BOLI 216, 238 (2015). Back pay awards are calculated to make a complainant whole for injuries suffered as a result of the discrimination. Id. A complainant who seeks back pay is required to mitigate damages by using reasonable diligence to find other suitable employment. Id. In this case, the Agency did not offer any testimony or pay records to show Complainant’s wages at the time of his termination. Additionally, Complainant credibly testified that he experienced physical limitations and fatigue as a result of his exposure to chemical fumes that impacted his ability to work. Accordingly, the forum concludes that there is insufficient evidence in the record to issue a back pay award. Out-of-Pocket Expenses This forum has consistently held that out-of-pocket expenses that are directly attributable to an unlawful practice are recoverable from a respondent as a means to eliminate the effects of any unlawful practice found. Maltby Biocontrol, Inc., 33 BOLI 121, 158 (2014); In the Matter of Crystal Springs Landscapes, Inc., 32 BOLI 144, 169 (2012). There was no testimony or other evidence in the record as to any out-of-pocket expenses Complainant had to pay as a result of his termination. Accordingly, the forum is unable to award out-of-pocket expenses. Emotional Distress Damages The Agency seeks damages on behalf of Complainant in the amount of ”at least $50,000” for physical, mental and emotional distress. Pursuant to ORS 659A.850, the Commissioner of the Bureau of Labor and Industries has the authority to award money

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damages for emotional, mental and physical suffering sustained. In the Matter of Frehoo Inc., 36 BOLI 42, 71 (2017), appeal pending. The commissioner has the authority to fashion a remedy adequate to eliminate the effects of unlawful employment practices. Id.

In determining an award for emotional and physical suffering, the forum considers the type of discriminatory conduct and the duration, frequency and severity of the conduct. It also considers the type and duration of the mental distress and the vulnerability of the aggrieved persons. A complainant’s testimony, if believed, is sufficient to support a claim for mental suffering damages. Id., citing In the Matter of Dr. Andrew Engel, DMD, PC, 32 BOLI 94, 141 (2012).

The credible testimony of Complainant and his wife established that Complainant’s life was deeply affected by his termination. He was initially upset and shocked by the termination. He worried about the family’s finances when they went down from one to two incomes and were forced to return Christmas gift purchases and relocate to a smaller home. He developed anxiety, depression and high blood pressure and was prescribed medication for all of these conditions. At times, he felt panicked and could not leave his home. In light of these harms he suffer as a result of the unlawful termination, the forum concludes that Complainant sustained emotional distress damages and awards Complainant $75,000.22 Other Requested Relief In the Formal Charges in Case Nos. 32-17 and 33-17, the Agency asked that Respondents and Respondents’ managers, supervisors and human resources professionals be trained, at Respondents’ expense, “on workplace retaliation, whistleblowing and application of the Oregon civil rights laws” by “the Bureau of Labor and Industries Technical Assistance for Employers Unit or other trainer agreeable to and approved by the Agency.” BOLI’s Commissioner is authorized to issue an appropriate cease and desist order reasonably calculated to eliminate the effects of any unlawful practice found. ORS 659A.850(4). Among other things, that may include requiring a respondent to:

“(a) Perform an act or series of acts designated in the order that are reasonably calculated to: “(A) Carry out the purposes of this chapter;

22 The emotional distress harm described in Complainant’s testimony is actually similar to conduct in previous BOLI cases that resulted in higher emotional distress damage awards. See, e.g. In the Matter of Leo Thomas Ryder dba Leo’s BBQ Bar & Grill, 34 BOLI 67, 76-77 (2015) ($120,000 awarded for emotional and mental suffering following a termination); In the Matter of Cyber Center, Inc., 32 BOLI 11, 40-41 (2012) (also awarded $120,000 for emotional and mental suffering comparable to that experienced by Complainant in this case). However, in this case, Complainant testified that some of the emotional harm was caused by matters not at issue in this case (the exposure to paint fumes that impacted his ability to work and move his body). Accordingly, the forum concludes that $75,000 is an appropriate award for emotional distress damages as a result of his unlawful termination.

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“(B) Eliminate the effects of the unlawful practice that the respondent is found to have engaged in, including but not limited to paying an award of actual damages suffered by the complainant and complying with injunctive or other equitable relief; and “(C) Protect the rights of the complainant and other persons similarly situated[.]”

This statute gives the Commissioner the authority to require On Time, Oregon Truck, Bowman and their managers and supervisors to undergo training of the type sought in the Formal Charges. The forum finds that this requirement is appropriate in this case.

ORDER

A. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS 659A.850(4), and to eliminate the effects of the violations of ORS 654.062(5), ORS 659A.199, ORS 659A.030(1)(g), OAR 839-004-0016(1) and (2) and OAR 839-010-01000(1) by Respondents On Time Painting Inc., Oregon Truck Painting LLC and Richard Bowman, and as payment of the damages awarded, the Commissioner of the Bureau of Labor and Industries hereby orders Respondents On Time Painting Inc., Oregon Truck Painting LLC and Richard Bowman to deliver to the Administrative

Prosecution Unit of the Bureau of Labor and Industries, 1045 State Office Building, 800 NE Oregon Street, Portland, Oregon 97232-2180, a certified check payable to the Bureau of Labor and Industries in trust for Richard Twigger in the amount of:

1) SEVENTY–FIVE THOUSAND DOLLARS ($75,000.00), representing compensatory damages for emotional and physical suffering experienced by Complainant as a result of Respondents’ unlawful employment practices found herein; plus,

2) Interest at the legal rate on the sum of SEVENTY–FIVE THOUSAND DOLLARS ($75,000.00), until paid.

B. NOW, THEREFORE, as authorized by ORS 659A.850(2) and 659A.850(4), and to eliminate the effects of Respondents’ unlawful employment practices found herein, the Commissioner of the Bureau of Labor and Industries hereby orders Respondents On Time Painting Inc., Oregon Truck Painting LLC and Richard Bowman to participate in training on the correct interpretation and application

of the Oregon laws pertaining to workplace retaliation, whistleblowing and application of the Oregon civil rights laws by the Bureau of Labor and Industries Technical Assistance for Employers Unit or other trainer agreeable to the Agency.

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_____________________________

In the Matter of

HYE I. DICKINSON, RESPONDENT, CASE NOS.

65-18 & 66-18

Final Order of Commissioner Val Hoyle Issued February 12, 2019

_____________________________

SYNOPSIS

The forum concluded that Respondent discriminated against Complainant Moore based on disability, familial status and source of income, in violation of ORS 659A.145(2)(a) and OAR 839-005-0205(1)(a), ORS 659A.145(2)(c) and OAR 839-005-0205(1)(c), ORS 659A.145(2)(g) and OAR 839-005-0220(2)(c), ORS 659A.421(2)(a) and OAR 839-005-0205(1)(a), ORS 659A.421(2)(c) and OAR 839-005¬0205(1)(c). The forum concluded that Respondent violated ORS 659A.145(2)(a) and OAR 839-005-0205(1)(a), ORS 659A.145(2)(c) and OAR 839-005¬0205(1)(c), ORS 659A.145(2)(g), OAR 839-005-0220(2)(c), ORS 659A.421(2)(a) and OAR 839-005-0205(1)(a), ORS 659A.421(2)(c) and OAR 839-005-0205(1)(c), with respect to Complainant FHCO. The forum awarded Complainant Moore $300,000.00 in emotional and mental suffering damages. The forum awarded $7,669.00 in damages to Complainant FHCO. The forum declined to award civil penalties.

_____________________________

The above-entitled case was assigned for hearing to Jennifer Gaddis, designated as Administrative Law Judge (“ALJ”) by Val Hoyle, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The Bureau of Labor and Industries (“BOLI” or “the Agency”) was represented by Administrative Prosecutor Adam Jeffries, an employee of the Agency. Respondent was represented by Mr. John Ostrander. The contested case hearing was held on November 15, 2018 at BOLI’s Salem office, located at 3865 Wolverine St. NE, Suite E-1, in Salem, Oregon. Complainant Valerie Moore and her daughter “I” were present throughout the hearing.1 Hannah Callaghan was present throughout the hearing, on behalf of Complainant Fair Housing Council (“Complainant FHCO”). Respondent was also present throughout the hearing.

The Agency called BOLI Civil Rights Investigator Mimi Perdue, Isidro Reyes

Cano, Hannah Callaghan and Complainant Valerie Moore as witnesses. Respondent called Carol McBee as a witness; Respondent also testified.

1 All of Complainant Moore’s children are minors and their names are not relevant to this order. All of

Complainant Moore’s minor children were identified as aggrieved persons in the Agency’s Formal Charges.

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The forum received into evidence Administrative exhibits X1 through X21.

The case participants stipulated to the admission of Agency exhibits A1 through A29, at the beginning of the hearing. The forum received into evidence A30 through A33, during the hearing.

Having fully considered the entire record in this matter, I, Val Hoyle,

Commissioner of the Bureau of Labor and Industries, hereby make the following Findings of Fact (Procedural, On the Merits, and Ultimate2), Conclusions of Law, Opinion, and Order.


1) On April 3, 2017, Complainant Moore filed a verified complaint (Case Number STHODP170403-40396) with BOLI’s Civil Rights Division. The complaint alleged that Respondent violated provisions of ORS 659A.421 and ORS 659A.145. The complaint named Complainant Moore’s five children as aggrieved persons. (Ex. A2)

2) On April 3, 2018, the Agency’s Civil Rights Division issued a Notice of

Substantial Evidence Determination (“SED”) in which it found substantial evidence of (1) an unlawful practice on the basis of disability, in violation of ORS 659A.145(2)(a), (c), and (g); (2) an unlawful practice on the basis of familial status, in violation of ORS 659A.421(2)(a) and (c); and (3) an unlawful practice on the basis of source of income – Section 8, in violation of ORS 659A.421(2)(a) and (c). (Testimony of Perdue; Ex. A28)

3) On April 3, 2017, Complainant FHCO filed a verified complaint (Case

Number STHODP170403-40397) with BOLI’s Civil Rights Division. The complaint alleged that Respondent violated provisions of ORS 659A.421 and ORS 659A.145. (Ex. A1)

4) On April 3, 2018, the Agency’s Civil Rights Division issued a Notice of

Substantial Evidence Determination (“SED”) in which it found substantial evidence of (1) an unlawful practice on the basis of disability, in violation of ORS 659A.145(2)(a), (c), and (g); (2) an unlawful practice on the basis of familial status, in violation of ORS 659A.421(2)(a) and (c); and (3) an unlawful practice on the basis of source of income – Section 8, in violation of ORS 659A.421(2)(a) and (c). (Testimony of Perdue; Ex. A27)

5) On June 18, 2018, the forum issued Notices of Hearing for Case Nos. 65-

18 and 66-18 to Respondent, the Agency and Complainants.3 The Notices of Hearing stated the time and place of the hearing as September 11, 2018, beginning at 9:30 a.m., at BOLI’s Salem office, located at 3865 Wolverine St NE, Building E-1, Salem, Oregon. With the Notices of Hearing, the forum also sent a copy of the Agency's Formal Charges


Findings of Fact – The Merits. 3 The Notice of Hearing for Complaint No. STHODP170403-40396 was assigned contested Case No. 65-

18. The Notice of Hearing for Complaint No. STHODP170403-40397 was assigned contested Case No. 66-18.

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in each case, a document entitled “Summary of Contested Case Rights and Procedures” containing the information required by ORS 183.413, a document entitled “Servicemembers Civil Relief Act (SCRA) Notification,” a multi-language notice explaining the significance of the Notice of Hearing, and a copy of the forum’s contested case hearings rules, OAR 839-050-000 to 839-050-0445. (Exs. X2, X2A-2H, X6, X6A-X6H)

6) The Formal Charges in Case No. 65-18 alleged that Respondent refused

to lease, rent or otherwise make available the subject property to Complainant Moore, a purchaser, because of a disability of an individual residing in or intending to reside in a dwelling after it was rented or made available or a disability of any individual associated with Complainant Moore in violation of ORS 659A.145(2)(a) and OAR 839-005-0205(1)(a); made a distinction, discrimination or restriction against Complainant Moore, a purchaser, in the price, terms, conditions or privileges relating to the rental, lease or occupancy of the subject property or in the furnishing of any facilities or services in connection therewith on the basis of disability, in violation of ORS 659A.145(2)(c) and OAR 839-005-0205(1)(c); refused to make reasonable accommodations in rules, policies, practices or services when the accommodations may have been necessary to afford the individual(s) with a disability equal opportunity to use and enjoy a dwelling in violation of ORS 659A.145(2)(g) and OAR 839-005-0220(2)(c); refused to lease, rent or otherwise make available real property to Complainant Moore, a purchaser, because of familial status in violation of ORS 659A.421(2)(a) and OAR 839-005-0205(1)(a); made a distinction, discrimination or restriction against Complainant Moore in the price, terms, conditions or privileges relating to the sale, rental, lease or occupancy of the subject property or in the furnishing of any facilities or services in connection therewith on the basis of familial status in violation of ORS 659A.421(2)(c) and OAR 839-005-0205(1)(c); refused to lease, rent or otherwise make available real property to Complainant Moore, a purchaser, because of source of income in violation of ORS 659A.421(2)(a) and OAR 839-005-0205(1)(a); and made a distinction, discrimination or restriction against Complainant Moore in the price, terms, conditions or privileges relating to the sale, rental, lease or occupancy of the subject property or in the furnishing of any facilities or services in connection therewith on the basis of source of income in violation of ORS 659A.421(2)(c) and OAR 839-005-0205(1)(c). The Formal Charges sought damages for emotional, mental, and physical suffering in the amount of at least $100,000.00, economic damages of at least $9,100.00 and a civil penalty in the amount of $11,000.00. The Formal Charges also requested that an appropriate Cease and Desist Order be entered against Respondent if it engaged in or committed any unlawful employment practices alleged in the Formal Charges, and that the forum order that it immediately stop all such unlawful practices. Finally, the Formal Charges requested the Respondent be ordered to attend training on the correct interpretation and application of laws pertaining to housing discrimination. The Formal Charges stated that the forum’s order may include such other relief as appropriate to eliminate the effects of the unlawful practices found as to Complainant and others similarly situated. (Ex. X2A)

7) The Formal Charges in Case No. 66-18 alleged that Complainant FHCO

conducted testing that established Respondent would refuse to sell, lease, rent or

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otherwise make the subject property available to a purchaser' because of a disability of an individual residing in or intending to reside in a dwelling after it was rented or made available or a disability of any individual associated with Complainant FHCO in violation of ORS 659A.145(2)(a) and OAR 839005-0205(1)(a); Complainant FHCO conducted testing that established Respondent made distinction or imposed restrictions against individuals who indicated they had a disability when determining terms, conditions or privileges relating to the rental, lease or occupancy of real property in violation of ORS 659A.145(2)(c) and OAR 839-005-0205(1)(c); Complainant FHCO conducted testing that established Respondent would refuse to reasonably accommodate individuals who indicated they had disabilities by modifying rules, policies, practices or services when the accommodations may have been necessary to afford disabled purchasers under the law equal opportunity to use and enjoy a dwelling in violation of ORS 659A.145(2)(g); OAR 839-0050220(2)(c); Complainant FHCO conducted testing that established Respondent would refuse to sell, lease, rent or otherwise make the subject property available to purchasers on the basis of familial status in violation of ORS 659A.421(2)(a) and OAR 839005-0205(1)(a); and Complainant FHCO conducted testing that established Respondent made distinction or imposed restrictions against individuals based on familial status when determining terms, conditions or privileges relating to the rental, lease or occupancy of real property in violation of ORS 659A.421(2)(c) and OAR 839-005-0205(1)(c). The Formal Charges sought damages for frustration of mission and the diversion of organizational resources to investigate and remedy the unlawful housing practices of Respondent, estimated to be at least $7,669.00 and a civil penalty in the amount of $11,000.00. The Formal Charges also requested that an appropriate Cease and Desist Order be entered against Respondent if it engaged in or committed any unlawful employment practices alleged in the Formal Charges, and that the forum order that it immediately stop all such unlawful practices. Finally, the Formal Charges requested the Respondent be ordered to create and implement a reasonable accommodation policy at any and all of Respondent’s properties, to be approved by the Oregon Bureau of Labor and Industries’ Civil Rights Division. The Formal Charges stated that the forum’s order may include such other relief as appropriate to eliminate the effects of the unlawful practices found as to Complainant and others similarly situated. (Ex. X6A)

8) On July 11, 2018, the forum issued its Interim Order Requiring Case

Summaries to be Filed and Setting Prehearing Conference Date, in Case Nos. 65-18 and 66-18. (Exs. X3, X7)

9) On July 17, 2018, the forum issued its Interim Order re: Case Deadlines

and Consolidation of Cases. (Exs. X4, X8). 10) On August 6, 2018, Respondent filed her Answer and Affirmative

Defenses. (Ex. X9) 11) On August 10, 2018, the forum issued its Interim Order Postponing

Contested Case Hearings. (Ex. X10)

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12) On October 10, 2018, Respondent filed her Motion to Continue Hearing Date. (Ex. X11)

13) On October 19, 2018, the forum issued its Interim Order re: Respondent’s

Motion to Continue Hearing Date. (Ex. X12) 14) On October 29, 2018, Respondent filed her Amended Answer and Case

Summary. (Ex. X13) 15) On October 31, 2018, the Agency filed its Motion to Dismiss Respondent

Donald Dickinson from Formal Charges.4 (Ex. X14) 16) On October 31, 2018, the Agency filed its Notice to Forum re: Submission

of Respondent’s Amended Answer. (Ex. X15) 17) On October 31, 2018, the forum issued its Interim Order Dismissing

Formal Charges against Respondent Donald Dickinson. (Ex. X16) 18) On November 1, 2918, the Agency filed its Case Summary and Exhibits.

(Ex. X17) 19) On November 2, 2018, the forum issued its Interim Order re:

Respondent’s Amended Answer. (Ex. X18) 20) On November 7, 2018, the Agency filed Stipulations, reached by the case

participants. The Stipulations resolved all issues of liability against Respondent, leaving only remedies remaining at issue, for purposes of the hearing. (Ex. X19)

21) On November 9, 2018, the Agency filed its Addendum to Agency Case

Summary. The Agency then filed a Second Addendum to Agency Case Summary on November 13, 2018. (Exs. X20, X21)

22) The hearing began on November 15, 2018. At the start of hearing, the

ALJ orally informed the Agency and Respondent of the issues to be addressed, the matters to be proven, and the procedures governing the conduct of the hearing. (Hearing Record)

23) The hearing concluded and the record closed on November 15, 2018. 24) On January 22, 2019, the ALJ issued a proposed order that notified the

Agency and Respondent that they were entitled to file exceptions to the proposed order within ten days of the order’s issuance. (Ex. X22)

4 The Formal Charges in Case Nos. 65-18 and 66-18 originally listed Donald R. Dickinson and Hye I.

Dickinson as named respondents, in this matter. The Agency moved to dismiss Respondent Donald R. Dickinson after it learned he was deceased. The hearing on November 15, 2018 resolved the charges against the remaining named respondent, Respondent Hye I. Dickinson.

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25) On January 31, 2019, the Agency filed its Exceptions to Proposed Order.

(Ex. X23) 26) On February 1, 2019, Respondent filed her Exceptions to Proposed Order.

(Ex. X24)


1) At all times material herein, Respondent and her husband were the owners of the subject triplex in Salem, Oregon. (Testimony of Perdue, Reyes Cano, Complainant Moore, Respondent)

2) Pursuant to the stipulations of the case participants:

a. In 2017, Respondent failed to lease, rent or otherwise make available the subject property to the Complainant in Case No. 65-18, Valerie Moore, a purchaser, because of a disability of an individual residing in or intending to reside in the dwelling after it was rented or made available or a disability of any individual associated with the Complainant in violation of ORS 659A.145(2)(a) and OAR 839-005-0205(1)(a);

b. In 2017, Respondent made a distinction, discrimination or

restriction against the Complainant in Case No. 65-18, Valerie Moore, a purchaser, in the price, terms, conditions or privileges relating to the rental, lease or occupancy of the subject property or in the furnishing of any facilities or services in connection therewith on the basis of disability in violation of ORS 659A.145(2)(c) and OAR 839-005-0205(1)(c);

c. In 2017, Respondent failed to make reasonable accommodations in

rules, policies, practices or services when the accommodations may have been necessary to afford the Complainant in Case No. 65-18, Valerie Moore and/or her children with a disability equal opportunity to use and enjoy the dwelling in violation of ORS 659A.145(2)(g) and OAR 839-005-0220(2)(c);

d. In 2017, Respondent failed to lease, rent or otherwise make

available real property to the Complainant in Case No. 65-18, Valerie Moore, a purchaser, because of familial status in violation of ORS 659A.421(2)(a) and OAR 839-005-0205(1)(a);

e. In 2017, Respondent made a distinction, discrimination or

restriction against the Complainant in Case No. 65-18, Valerie Moore, in the price, terms, conditions or privileges relating to the sale, rental, lease or occupancy of the subject property or in the furnishing of any facilities or services in connection therewith on the basis of familial status in violation of ORS 659A.421(2)(c) and OAR 839-005-0205(1)(c);

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f. In 2017, Respondent failed to lease, rent or otherwise make

available real property to the Complainant in Case No. 65-18, Valerie Moore, a purchaser, because of source of income in violation of ORS 659A.421(2)(a) and OAR 839-005-0205(1)(a);

g. In 2017, Respondent made a distinction, discrimination or

restriction against the Complainant in Case No. 65-18, Valerie Moore, in the price, terms, conditions or privileges relating to the sale, rental, lease or occupancy of the subject property or in the furnishing of any facilities or services in connection therewith on the basis of source of income in violation of ORS 659A.421(2)(c) and OAR 839-005-0205(1)(c);

h. In 2017, the Complainant in Case No. 66-18, the Fair Housing

Council of Oregon, conducted testing that established Respondent would refuse to sell, lease, rent or otherwise make the subject property available to a purchaser because of a disability of an individual residing in or intending to reside in a dwelling after it was rented or made available or a disability of any individual associated with Complainant in violation of ORS 659A.145(2)(a) and OAR 839-005-0205(1)(a);

i. In 2017, the Complainant in Case No. 66-18, the Fair Housing

Council of Oregon, conducted testing that established Respondent made distinction or imposed restrictions against individuals who indicated they had a disability when determining terms, conditions or privileges relating to the rental, lease or occupancy of real property in violation of ORS 659A.145(2)(c) and OAR 839-0050205(1)(c);

j. In 2017, the Complainant in Case No. 66-18, the Fair Housing

Council of Oregon, conducted testing that established Respondent would refuse to reasonably accommodate individuals who indicated they had disabilities by modifying rules, policies, practices or services when the accommodations may be necessary to afford disabled purchasers under the law equal opportunity to use and enjoy a dwelling in violation of ORS 659A.145(2)(g); OAR 839-005-0220(2)(c);

k. In 2017, the Complainant in Case No. 66-18, the Fair Housing

Council of Oregon, conducted testing that established Respondent would refuse to sell, lease, rent or otherwise make the subject property available to purchasers on the basis of familial status in violation of ORS 659A.421(2)(a) and OAR 839-005-0205(1)(a); and

l. In 2017, the Complainant in Case No. 66-18, the Fair Housing

Council of Oregon, conducted testing that established Respondent made distinction or imposed restrictions against individuals based on familial status when determining terms, conditions or privileges relating to the rental, lease or

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occupancy of real property in violation of ORS 659A.421(2)(c) and OAR 839-005-0205(1)(c).

(Ex. X19)

3) On or around December 25, 2016, Complainant Moore’s ex-husband broke into her residence and held Complainant Moore and three of her children, “R” age 2, “M” age 11 and “I” age 15, hostage in their home. Her other two children, “D” age 3 and “A” age 13, escaped out of a bedroom window to call local law enforcement. Complainant Moore’s ex-husband was arrested for his actions. (Testimony of Complainant Moore)

4) Through her involvement with the criminal proceeding against her ex-

husband, Complainant Moore was informed that he would be held in county jail until April 15, 2017. Department of Human Services (“DHS”) was involved with the family and told Complainant Moore that she needed to begin to look for new housing, in order to be out of the residence before her ex-husband was released from jail. The family’s DHS caseworker helped Complainant Moore obtain a monetary grant for domestic violence victims and obtain assistance with the costs associated with the move. (Testimony of Complainant Moore)

5) All five of Complainant Moore’s children live with disabilities and

Complainant Moore was advised by her children’s’ therapists to avoid changing the children’s schools, in order to disrupt their lives as little as possible and provide them with a sense of stability during the transition. (Testimony of Complainant Moore; Ex. A10)

6) Sometime in January 2017, Complaint Moore saw an ad for Respondent’s

triplex on Craigslist. The ad indicated that the unit for rent was “five minutes to schools” attended by her children and stated that the unit was “available now.” Complainant Moore chose to contact Respondent about the unit for this reason. A map of the area confirmed the unit was close to her then-residence. (Testimony of Complainant Moore; Exs. A30 through A33)

7) Complainant Moore was very interested in the unit because it would

enable her children to stay in their respective schools. She also liked that the unit had a fireplace and a backyard, for the children and the family’s service dog to play in. (Testimony of Complainant Moore)

8) Complainant Moore called Respondent about the unit. Since Complainant

Moore received financial assistance with housing, she had a number of questions she was required to ask a prospective landlord, in order to make sure the housing fell within her voucher range. During the course of Complainant Moore’s questions, Respondent asked Complainant Moore if she could pay the security deposit and Complainant Moore responded that she could because her caseworker would assist her with that. Respondent also asked Complainant Moore how many children she had; Complainant

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Moore responded that she had five children. Respondent replied, “No. I don’t rent to people with children.” Respondent listed several reasons she would not rent to Complainant Moore, including that Respondent experienced migraines and couldn’t handle the loud noises made by children, that children would damage the unit, that service animals would damage the unit, that she didn’t want people living there with special needs because they would damage the unit and that she did not want to rent to individuals who received assistance from the State of Oregon. This made Complainant Moore feel “like the lowest person on the Earth.” (Testimony of Complainant Moore)

9) On March 3, 2017, after unsuccessfully looking both inside and outside

the area, Complainant Moore tried to speak with Respondent about the unit again. For the second call, Complainant Moore called from her daughter’s phone and did not immediately mention her children or service animal. Respondent recognized Complainant Moore’s voice and, again, refused to rent to her. Respondent stated something to the effect of “I recognize you. You’re the one with the retards.” This made Complainant Moore very angry. Complainant Moore told Respondent that Respondent’s conduct was illegal and that she intended to contact Complainant FHCO. Respondent stated that she did not care. Complainant Moore contacted FHCO that same day. (Testimony of Complainant Moore, Reyes Cano; Ex. A18)

10) On March 7, 2018 Mr. Reyes Cano, a representative with Complainant

FHCO, called Respondent to speak with her about Complainant Moore’s allegations. After speaking with Mr. Reyes Cano, Respondent agreed to accept a housing application from Complainant Moore. Mr. Reyes Cano emailed Complainant Moore the same day to inform her of his conversation with Respondent. Complainant Moore immediately called Respondent to try and rent the unit. Respondent, again, refused to rent to Complainant Moore, based on family status, the disabilities of Complainant Moore’s children and Complainant Moore’s source of income. Complainant Moore was shocked; she did not understand why Respondent would tell Complainant FHCO that she would accept Complainant Moore’s application, only to refuse her again. (Testimony of Reyes Cano, Complainant Moore; Ex. A18)

11) Complainant Moore subsequently learned through the Victim Information

and Notification Everyday (“VINE”) hotline that her ex-husband would be released from jail early, due to overcrowding. Complainant Moore immediately packed some bags with personal items and took her family to her sister’s house. During this time, she still actively looked for housing online and drove around neighborhoods looking for housing. (Testimony of Complainant Moore)

12) On or about March 16, 2017, Complainant Moore secured housing in a

four-bedroom unit outside the children’s school district.5 Her new residence has no

5 At hearing, Complainant testified that she received the VINE notification and immediately moved to her

sister’s residence. Given that she testified that her husband was released early from jail, his original release date was scheduled for April 15, 2017 and she testified that she was moved out of her sister’s residence and into her new residence on “the 16th,” a reasonable inference can be made that she was moved into her new residence on or about March 16, 2017.

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washer and dryer attachments in the unit, and she had to sell her washer and dryer to help her afford laundry, for a family of six, at the local laundromat. By contrast, Respondent’s unit had a washer and dryer attachments. There is also not a lot of storage in the new unit, which means Complainant Moore’s room is occupied by most of the other family members’ personal items. Complaint Moore is extremely stressed by her current living situation and it makes her very anxious. Respondent’s unit offered an oversized single car garage, which could be used for storage. Most distressing for Complainant Moore is the effect moving to the new residence has placed on her children. (Testimony of Complainant Moore)

13) The family’s new residence is outside of her children’s school district,

which causes her children significant unhappiness. Since her children’s therapists advised Complainant Moore not to uproot them from their respective schools, Complainant Moore began spending hours in her vehicle, driving them back and forth. Complainant Moore’s children were affected by Respondent’s conduct in the following ways:

a. “R” was largely unaffected, given her young age of 2 years old.6 b. “D,” then-age 4, had to be removed from his pre-Kindergarten

program in the family’s old school district. “D” lives with Autism and experiences Sensory Processing Disorder. As a result of his abrupt removal from his pre-Kindergarten program, “D” lost his friends and connections at the program; he became unstable and had to be put in occupational therapy.

c. “M,” age 11, was allowed to remain at his middle school but now

has to take a two hour, roundtrip, bus ride to get there. “M” gets up at 5:00 a.m. in order to catch his bus.

d. “A,” age 13, was able to finish middle school but had to begin high

school in her new school district. “A” lost contact with her middle school friends and became extremely depressed. She was placed on medication and ultimately had to be homeschooled.

e. “I,” age 15, experienced significant stress after the December 2016

incident involving Complainant’s ex-husband. The stress regarding the family’s lack of housing aggravated this stress and “I” harmed herself. “I” had to be removed from school and also lost access to her friends and connections there. Complainant Moore was visibly shaken and crying during her testimony about “I.”

(Testimony of Complainant; Ex. A30)

6 Complainant Moore testified that “R” suffers from a heart condition that makes living in the new

residence challenging, given the age of the building. Complainant Moore testified that “R” is greatly affected by extreme temperatures, because of her condition, and the new residence is poorly insulated. There was not sufficient evidence, however, that Respondent’s unit would have better addressed this health condition.

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14) During the course of BOLI’s investigation, Respondent’s husband wrote a letter to BOLI Civil Rights Investigator Perdue, stating:

“The reason for refusal to rent to Ms. Moore was indeed the five disabled children and her obvious mental disability.

“* * * * *

“Ms. Moore obviously has mental problems. If a rational person had one disabled child, he or she would consider that one enough – why bring four more unfortunate lives into this world?”

Respondent joined her husband in the letter, signing it as true “under penalty of perjury.” This excerpt of Respondent’s statement was included within the Notice of Substantial Evidence which was later provided to Complainant Moore. The statement “really stood out in [Complainant Moore’s] mind” and “bothered [her] for quite a while.” Complainant Moore was “derailed” by the statement and had to go on medication for anxiety. (Testimony of Perdue, Complainant Moore; Ex. A7, A28)

15) On March 7, 2017 at 3:20 p.m., a tester for Complainant FHCO called Respondent seeking information about the rental unit. The tester told Respondent that she had an assistance animal. Respondent told the tester that she did not allow pets, despite Complainant FHCO’s tester explaining that she had a doctor’s note for the animal. (Testimony of Callaghan; Ex. A11)

16) On March 7, 2017 at 3:50 p.m., a second tester for Complainant FHCO

called Respondent seeking information about the rental unit. The second tester told Respondent that she had five young male children and was looking for a place as soon as possible. Respondent told the second tester that the rental unit was not suitable for her because Respondent and her husband lived next door and her husband needed a quiet atmosphere. (Testimony of Callaghan; Ex. A11)

17) On March 7, 2017 at 4:30 p.m., a third tester for Complainant FHCO

called Respondent seeking information about the rental unit. The third tester told Respondent that she and her husband were interested in the unit. Respondent told the third tester that she would take her application. (Testimony of Callaghan; Ex. A11)

18) Complainant FHCO diverted a total of $7,669.00 in resources to this case.

Specifically, it’s costs consisted of $4,376.00 in case management resources, $1,500.00 in testing costs and $1,794 in business costs over and above staff resources.7 (Testimony of Callaghan; Ex. A29)

Credibility Findings

7 Ms. Callaghan testified that this amount consisted of “indirect costs, such as rent, utilities, the Xerox

machine, paper supplies * * *.”

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19) BOLI Civil Rights Investigator Mimi Perdue’s testimony was credible and the forum credited her testimony in its entirety. (Testimony of Perdue)

20) Isidro Reyes Cano’s testimony was credible and the forum credited his

testimony in its entirety. (Testimony of Reyes Cano) 21) Hannah Callaghan’s testimony was credible and the forum credited her

testimony in its entirety. (Testimony of Callaghan) 22) Complainant Valerie Moore’s testimony was credible and the forum

credited her testimony in its entirety. (Testimony of Complainant Moore) 23) Carol McBee testified about her personal opinion of Respondent’s

character. Such evidence is not relevant to damages or the mitigation of damages, as discussed more fully in the opinion that follows. The forum did not give any weight to Ms. McBee’s testimony. (Testimony of McBee)

24) Respondent’s testimony was also primarily focused on offering evidence

of her character and was, therefore, largely irrelevant to the issue before the forum. Respondent also testified that she did not make derogatory remarks about Complainant Moore’s children. This testimony was inconsistent with a letter, discussed in Proposed Findings of Fact – The Merits #14, in which Respondent joined her husband in making derogatory comments about both Complainant Moore and her children. Respondent’s testimony on these issues was irrelevant and not credible; the forum gave it no weight. Respondent also gave some testimony regarding her limited financial resources. This was relevant to the forum’s consideration of civil penalties and the forum gave it due weight for that purpose. (Testimony of Respondent; Ex. A7)

CONCLUSIONS OF LAW

1) At all times material herein, Complainant Moore and her children were “purchasers” and the subject property was a “dwelling” as defined in ORS 659A.145(1)(a) and (b) and ORS 659A.421(a) and (b). At all times material herein, Complainant Moore and her children were “aggrieved persons” as defined in ORS 659A.820(1) and OAR 839-005-0200(1).

2) At all times material herein, Complainant FHCO was an “aggrieved

person” as defined in ORS 659A.820(1), OAR 839-005-0003(1) and OAR 839-005-0200(1).

3) At all times material herein, Respondent was a “person” as defined in

ORS 659A.001(9). 4) In Case No. 65-18, Respondent violated: ORS 659A.145(2)(a) and OAR

839-005-0205(1)(a); ORS 659A.145(2)(c) and OAR 839-005-0205(1)(c); ORS

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659A.145(2)(g) and OAR 839-005-0220(2)(c); ORS 659A.421(2)(a) and OAR 839-005-0205(1)(a); ORS 659A.421(2)(c) and OAR 839-005-0205(1)(c).

5) In Case No. 66-18, Respondent violated: ORS 659A.145(2)(a) and OAR

839-005-0205(1)(a); ORS 659A.145(2)(c) and OAR 839-0050205(1)(c); ORS 659A.145(2)(g); OAR 839-005-0220(2)(c); ORS 659A.421(2)(a) and OAR 839-005-0205(1)(a); ORS 659A.421(2)(c) and OAR 839-005-0205(1)(c).


of the persons and of the subject matter herein and the authority to eliminate the effects of unlawful discrimination in real property transactions. ORS 659A.800 to ORS 659A.865.

7) Pursuant to ORS 659A.850 and ORS 659A.855, the Commissioner of the

Bureau of Labor and Industries has the authority under the facts and circumstances of this case to award Complainants damages resulting from Respondent’s unlawful discrimination in real property transactions; to protect the rights of Complainants and others similarly situated; and to assess a civil penalty. The sum of money awarded and the other actions required of Respondent in the Order below are an appropriate exercise of that authority.

OPINION

The case participants stipulated to Respondent’s liability in this matter. The only remaining unresolved issues at hearing were damages and injunctive relief. Pursuant to ORS 659A.850(4)(a)(B), the Commissioner of the Bureau of Labor and Industries may issue an order requiring Respondent to perform an act or series of acts reasonably calculated to “[e]liminate the effects of the unlawful practice that the respondent is found to have engaged in, including but not limited to paying an award of actual damages suffered by the complainant and complying with injunctive or other equitable relief.” Such damages may include economic damages and emotional distress damages. For cases involving violations of ORS 659A.145 or ORS 659A.421, the Commissioner may assess a civil penalty in addition to other equitable relief. ORS 659A.855(2)(a).

In its Formal Charges, filed on behalf of Complainant Moore, the Agency sought

at least $100,000.00 in physical, mental and emotional distress damages, $9,100.00 in economic damages and $11,000.00 in civil penalties. At hearing, the Agency withdrew its request for economic damages. The Agency also sought injunctive relief, in the form of a requirement that Respondent be trained on the correct application of state and federal housing laws. In its Formal Charges, filed on behalf of Complainant FHCO, the Agency sought $7,669.00 in economic damages for the diversion of resources and $11,000.00 in civil penalties. The Agency also sought injunctive relief, in the form of a requirement that Respondent create and implement a reasonable accommodation policy at any and all of her rental properties.

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DAMAGES

Complainant Moore – Emotional Distress Damages Pursuant to ORS 659A.850, the Commissioner of the Bureau of Labor and

Industries has the authority to award money damages for emotional, mental, and physical suffering, and fashion a remedy adequate to eliminate the effects of unlawful employment practices. In the Matter of Frehoo Inc., 36 BOLI 42, 71 (2017).8

“In determining an award for emotional and mental suffering, the forum considers the type of discriminatory conduct, and the duration, frequency, and severity of the conduct. It also considers the type and duration of the mental distress and the vulnerability of the complainant. The actual amount depends on the facts presented by each complainant. A complainant’s testimony, if believed, is sufficient to support a claim for mental suffering damages.”

In the Matter of Blue Gryphon, LLC, and Flora Turnbull, 34 BOLI 216, 238-39 (2015). The statutory authority and forum precedent firmly root the amount of damages in the harm experienced by an individual complainant. Although the amount of damages may arguably be mitigated by some unaffiliated variable causing unrelated harm to the complainant, the awarded amount and any mitigation thereto is tied exclusively to the complainant’s harm. A respondent’s intent to cause a particular level of harm is irrelevant. Further, “[t]his forum has long held that respondents must take complainants ‘as they find them,’” meaning a respondent’s unlawful conduct may cause more harm to a particular complainant than to others. In the Matter of Kara Johnson dba Duck Stop Market, 34 BOLI 2, 37 (2014), aff’d Johnson v. Or. Bureau of Labor & Indus., 290 Or.App. 335, 415 P.3d 1071 (Or. App., 2018).

In this case, Complainant Moore and her children experienced a terrifying and life changing event when her ex-husband broke into her residence and held her and her family hostage. (Finding of Fact – The Merits #3) For Complainant Moore’s safety and the safety of her children, DHS helped her obtain a domestic violence grant and monetary relief, for costs associated with moving the family to a new home prior to her ex-husband’s release from jail. (Finding of Fact – The Merits #4) This was a vital step for the safety of the family. Given the particular needs of her children, Complainant Moore’s search was, at first, limited to areas within the children’s school district. (Finding of Fact – The Merits #5) Respondent’s rental unit specifically advertised itself as within close proximity to her children’s schools. Complainant Moore was also attracted to the listing because it had a yard for the children and the family’s service dog to play in. (Finding of Fact – The Merits #6, #7)

Knowing that her ex-husband would soon be released from jail, Complainant

Moore called Respondent to ask about the application process for the unit. Respondent refused to even accept Complainant Moore’s application, based on Complainant

8 Although In the Matter of Frehoo, Inc. was a case involving sexual harassment in the workplace, the

same statutory remedies apply to cases involving housing discrimination.

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Moore’s family status, her source of income and because Complainant Moore’s children live with disabilities. Complainant Moore was degraded by Respondent’s comments. (Finding of Fact – The Merits #8) She kept looking, both inside and outside the children’s school district, but she was unsuccessful. With her ex-husband’s release drawing closer, Complainant Moore called Respondent again, this time from her daughter’s phone in the hope that Respondent would not recognize her. Respondent, again, refused her. Respondent stated that she recognized Complainant Moore as “the one with the retards,” referring to Complainant Moore’s children, during the call. This made Complainant Moore very angry. Complainant Moore told Respondent that she would contact Complainant FHCO. Respondent told Complainant Moore that she did not care. (Finding of Fact – The Merits #9)

Complainant FHCO contacted Respondent shortly thereafter and Respondent

ultimately agreed to accept Complainant Moore’s application for the unit. Complainant Moore’s response was immediate; she contacted Respondent the same day she was notified of Respondent’s decision to accept it. During this third contact, however, Respondent again refused Complainant Moore on the basis of family status, source of income and the disabilities of Complainant Moore’s children. Complainant Moore was shocked. She did not understand why Respondent would agree to accept her application, when speaking with Complainant FHCO, only to refuse her for a third time once in contact with her. Complainant Moore also knew that Respondent’s unit had been advertised from January 2017 to when she saw the ad again, in March 2017. (Finding of Fact – The Merits #6, #10)

Complainant Moore learned soon after Respondent’s final refusal that her ex-

husband was going to be released from jail early. While she was able to temporarily stay with her sister, the pressure to find suitable housing was now building at a fevered pitch. Complainant Moore found housing on or about March 16, 2017; unfortunately, it was outside of her children’s school district. While inconvenient for any family, this had particularly stressful effects on Complainant Moore. Not only was the new residence, less than ideal for the family’s needs, Complainant Moore began spending hours in her vehicle driving her children to their respective schools in their old school district. (Finding of Fact – The Merits #12, #13)

Complainant Moore suffered extreme distress, as she watched the toll this move

took on her children. Complainant Moore’s 4 year-old son had to be removed from his pre-Kindergarten program, since Complainant Moore could not keep up with getting all her children to the schools in the old district. As a result of his removal, her son became unstable and had to be placed in occupational therapy. Complainant Moore’s 11 year-old son remained at his middle school but, based on the move, now had to take a two hour roundtrip bus ride to get there. At the time of hearing, he was still commuting to the school, which meant he had to get up at 5:00 a.m., in order to make his bus. Complainant Moore’s 13 year-old daughter finished middle school in the old district, but had to start in a new district for high school. She lost contact with friends and became extremely depressed. She had to be placed on medication and homeschooled. The effects on Complainant Moore’s 15 year-old daughter were the most distressing for

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Complainant Moore. Complainant Moore’s daughter experienced significant stress, as a result of the incident in their home during December 2016. The pressure regarding the family’s lack of housing aggravated this stress and Complainant cried as she talked about the fact that “I” ultimately harmed herself, as a result. (Finding of Fact – The Merits #13) The effects of Respondent’s discriminatory conduct on Complainant Moore’s children weighed extremely heavily on Complainant Moore, causing her significant distress.

Complainant Moore was further damaged by Respondent’s joint statement with

her husband, to BOLI, about Complainant Moore’s family. During the course of BOLI’s investigation, Respondent and her husband submitted a letter to BOLI Civil Rights Investigator Perdue. In the letter Respondent and her husband stated, “Ms. Moore obviously has mental problems. If a rational person had one disabled child, he or she would consider that one enough – why bring four more unfortunate lives into this world?” This statement “really stood out in [Complainant Moore’s] mind” and “bothered [her] for quite a while.” Complainant Moore was “derailed” by it and had to go on medication for anxiety. (Finding of Fact – The Merits #14)

Unfortunately, the concept of individuals living with disabilities being seen as

“less than” is not new. For this reason, both the federal government and individual states have taken the important step of ensuring that those individuals who fall within a particular “protected class” are guaranteed the same basic rights and opportunities, as those outside that particular protected class. Pursuant to Oregon’s laws regarding equal access to housing, “‘[p]rotected class’ means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, familial status, source of income or disability.”9 ORS 659A.425(1)(b). In regard to individuals living with disabilities, the State of Oregon has specifically made it a policy to “guarantee [those] individuals the fullest possible participation in the social and economic life of the state, * * * to participate in and receive the benefits of the services, programs and activities of state government and to secure housing accommodations of their choice, without discrimination on the basis of disability.” ORS 659A.103(1). Oregon law, therefore, expressly acknowledges that the societal acceptance of those that fall within these protected classes is lacking in some important areas. That is to say, mere participation in social and economic life requires protection.

In this case, a mother and her five children were denied the ability to participate

in a process that many Oregonians take for granted. There was no dispute as to the reasons why her application was refused. Respondent believed that Complainant Moore should not participate in this basic act because of Complainant Moore’s family status, her source of income and her children’s disabilities. The cumulative effect of the different ways in which Respondent discriminated against Complainant Moore magnified the impact of the violations, as well as the hopelessness of finding housing when there were so many things “wrong” with Complainant Moore and her family. While there is no evidence that Respondent could have foreseen the damage her discriminatory conduct would have on Complainant Moore, it ultimately did affect her in

9 It is worth noting that all individuals fall into several of these protected classes.

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a very significant way. As previously stated, the forum “has consistently held in prior final orders when calculating mental suffering damage awards that respondents must take complainants ‘as they find them.’” In the Matter of Kenneth Wallstrom, 32 BOLI 63, 90 (2012). Respondent offered no evidence of any other sources of harm that arguably mitigated Complainant Moore’s damages.

Complainant Moore repeatedly attempted to apply to rent Respondent’s

townhouse, and was refused on three separate occasions by Respondent. As a result, Complainant Moore experienced significant emotional distress, from a period of sometime in January 2017 up and until the time of hearing. Her significant harm was the direct result of Respondent’s conduct. A review of prior Final Orders indicates that, based on the level of harm experienced by Complainant Moore, the damages sought by the Agency are not commensurate with her suffering and should be increased. In the Matter of Leo Thomas Ryder dba Leo’s BBQ Bar & Grill, 34 BOLI 67, 77 (2015).

In Crystal Springs, a complainant was subjected to sexual harassment by her

employer for approximately three months, ultimately leading to her constructive discharge. Aside from the blatant discrimination she endured during the course of employment, the complainant also endured monetary struggles, due to her discharge, humiliation and embarrassment and a strain on her relationships. The complainant was awarded $150,000.00 in emotional distress damages. In the Matter of Crystal Springs Landscapes, Inc. et al, 32 BOLI 144, 170-172 (2012).

In Navex Global, Inc., a complainant was awarded $120,000.00 in emotional

distress damages, after her employer terminated her for complying with a mandatory jury summons. The complainant’s preexisting anxiety condition was aggravated and she was forced to increase her medication. The complainant also cared for her teenage brother and experienced anxiety when considering her role as primary breadwinner for the family. In the Matter of Navex Global, Inc., 36 BOLI 200, 236 (2018).

Finally, in Andrew W. Engel, DMD, PC, et al, a complainant was awarded

$325,000.00 in emotional distress damages, based on the harm she suffered after her employer constructively discharged her due to her religious beliefs. The complainant received medication for anxiety, had significant concerns about her monetary security and was forced to move out-of-state, and away from her teenage daughter, for her new job. While the complainant was able to see her daughter on school breaks, the lengthy separation of parent and child weighed heavily on the forum’s decision to award $325,000.00 in emotional distress damages.10 In the Matter of Andrew W. Engel, DMD, PC, et al, 32 BOLI 94, 140-141 (2012). While Complainant Moore was not separated from her children, she certainly experienced unusual and significant stress due to the effects Respondent’s unlawful conduct had on them, in addition to her own anxiety about the situation. The forum finds that, given the particular facts of this case and the significant distress Complainant Moore experienced as a result of Respondent’s conduct, $300,000.00 is an appropriate award of damages.

10 The complainant began working in Texas in November of 2009 and the hearing took place in

December 2011.

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Complainant FHCO – Economic Damages

During the course of Complainant FHCO’s involvement with the case, the

organization made three different test calls to Respondent, contacted Respondent directly about Complainant Moore’s allegations and incurred $7,669.00 in business costs, over and above staff resources. (Findings of Fact – The Merits #15-#17) “This forum has consistently held that out-of-pocket expenses that are directly attributable to an unlawful practice are recoverable from a respondent as a means to eliminate the effects of any unlawful practice found.” In the Matter of Crystal Springs Landscapes, Inc., 32 BOLI 144, 169 (2012). Ms. Callaghan credibly testified about the expenses incurred by Complainant FHCO. The forum awards $7,669.00 in out-of-pocket expenses to Complainant FHCO.

Civil Penalties to the Agency

The Agency sought a total of $22,000.00 in civil penalties against Respondent.

Pursuant to ORS 659A.855(2)(a), in cases involving housing discrimination, the Commissioner may assess a civil penalty, in an amount not to exceed $11,000.00, in addition to other equitable relief. Since Oregon housing law is modeled after federal housing law, the forum looks to federal authority to assist in its interpretation of Oregon Law.

“[T]he Code of Federal Regulations sets out specific guidelines for an ALJ to use when evaluating the appropriate amount of civil penalty. 24 CFR §180.671. In pertinent part, it states: ‘(c) Factors for consideration by ALJ. (1) In determining the amount of the civil penalty to be assessed against any respondent for each separate and distinct discriminatory housing practice the respondent committed, the ALJ shall consider the following six (6) factors: ‘(i) Whether that respondent has previously been adjudged to have committed unlawful housing discrimination; ‘(ii) That respondent's financial resources; ‘(iii) The nature and circumstances of the violation; ‘(iv) The degree of that respondent's culpability; ‘(v) The goal of deterrence; and ‘(vi) Other matters as justice may require.’ “In the absence of any direction from the Oregon legislature or the Agency

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through promulgation of an administrative rule, the forum takes guidance from the criteria above to determine the appropriate civil penalty, if any, to be assessed against Respondent for its violation of [Oregon’s housing discrimination laws].”

In the Matter of Kenneth Walstrom, 32 BOLI 63, 91 (2012). There was no evidence that Respondent has previously been adjudged to have committed unlawful housing discrimination. While Respondent’s testimony regarding her limited financial resources was not relevant for the forum’s consideration of emotional distress damages, it is relevant for consideration of the forum’s award of civil penalties in this matter. (Finding of Fact – The Merits #24) The nature and circumstances of the violation in this case resulted in significant harm, however, Respondent was not the sole actor in the discriminatory conduct. For instance, Respondent’s late husband wrote the letter referring to Complainant Moore’s children as “unfortunate lives.” (Finding of Fact – The Merits #14) Given Respondent’s limited financial resources and the damage awards she is already facing, the forum finds no practical deterrent effect will be gained by the award of civil penalties. The forum declines to award civil penalties in this matter.

ADDITIONAL RELIEF REQUESTED BY THE AGENCY

The Agency sought a cease and desist order against Respondent requiring her to stop committing any unlawful practices the forum concludes occurred. BOLI’s Commissioner is authorized to issue an appropriate cease and desist order reasonably calculated to eliminate the effects of any unlawful practice found. ORS 659A.850(4). Among other things, that may include requiring a respondent to:


“(A) Carry out the purposes of this chapter; “(B) Eliminate the effects of the unlawful practice that the respondent is

found to have engaged in, including but not limited to paying an award of actual damages suffered by the complainant and complying with injunctive or other equitable relief; and

“(C) Protect the rights of the complainant and other persons similarly

situated[.]”

Id. The forum finds the Agency’s requested cease and desist order to be appropriate relief in this case.

The Agency also requested that Respondent be trained on the correct application of state and federal housing laws and be required to create and implement a reasonable accommodation policy at any and all of her rental properties. If Respondent continues to rent or lease real property, this remedy is appropriate.

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AGENCY’S EXCEPTIONS

The Agency submitted two exceptions to the Proposed Order: “Exception # 1: The Proposed Order states that ‘Respondent offered no evidence of any other sources of harm that arguably mitigated Complainant Moore’s damages.’ (Proposed Order ‘PO’, Page 27, Lines 8-9).”

(Emphasis in original) The Agency suggested the above sentence be deleted in the Final Order as it “appears to be at odds with the holding that respondents must take complainants ‘as they find them’” and “appears to invite Respondent(s) to have free reign to inquire about alternate stressors that may be affecting, or have affected, a Complainant who alleges mental or emotional distress damages * * *”. (Agency’s Exceptions, p. 1-2)

When the Agency is seeking emotional distress damages in its Formal Charges, it bears the burden of proof on the issue of harm to the complainant or aggrieved person. See In the Matter of Melissa and Aaron Klein dba Sweetcakes by Melissa, 34 BOLI 102 (2015), aff’d Klein v. Or. Bureau of Labor & Indus., 289 Or App 507, 410 P.3d 1051 (2017), rev den 363 Or 121, 224 (2018), petition for cert. filed (U.S. October 26, 2018) (No. 18-547). A respondent may choose to then rebut that evidence by demonstrating that harm to the complainant was mitigated by another source of harm, or deny that there was any harm to the complainant at all. The forum’s precedent that a respondent must “take a complainant as they find them” is not at odds with this concept.

For instance, there are situations in which a complainant may have experienced

significant harm from a source other than the respondent. See In the Matter of Frehoo, Inc., dba Stars Cabaret & Steakhouse, 36 BOLI 42, 113-114 (2017), appeal pending. However, if the Agency can prove that the harm caused by a respondent’s conduct was separate and distinct from that unrelated harm or, perhaps, that a respondent’s conduct caused more harm to the complainant than would be typical, due to a complainant’s particular vulnerability caused by the other harm, a respondent must take the complainant “as they find them.” That is to say, a respondent does not get a pass for the severity of their own conduct simply because a complainant experienced harm from another source, as long as the Agency can prove that respondent’s conduct, in particular, caused a specific amount of harm to the complainant.

Although not the case here, when the Agency cannot demonstrate the particular

harm caused by a respondent, the respondent may choose to argue that the harm is mitigated by another source or that there was no harm at all. Such argument is consistent with the forum’s precedent. See In the Matter of Emerald Steel Fabricators, Inc., 27 BOLI 242, 278 (2006), aff’d 220 Or App 423, 186 P3d 300 (2008), reversed other grounds 348 Or 159, 230 P3d 518 (2010) (the forum considered that complainant already suffered from the same symptoms, at a reduced level, prior to the harm caused by respondent, in the calculation of its damage award); See In the Matter of Oregon

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Truck Painting et al, 37 BOLI ___, __ (2018) (the forum noted that the complainant testified about a separate harm that was caused by matters not at issue in the case; the separate harm was not used in the calculation of the forum’s award). The Agency’s concern about a respondent having “free reign” to inquire about alternate sources of harm is not well taken. Guidance regarding what is considered relevant evidence on the issue of harm is well established through the forum’s precedent. Further, both the Agency and respondents are given the opportunity to argue the point, as it is routinely the subject of motions to compel discovery filed in cases involving emotional distress damages, as well as objections at hearing. The Agency’s Exception # 1 is DENIED.

“Exception # 2: The Proposed Order states in relevant part the following: ‘the Commissioner of the Bureau of Labor and Industries hereby orders Respondent Hye. I. Dickinson, as long as she rents or leases real property, to be trained on the correct application of state and federal housing laws by the Bureau of Labor and Industries Technical Assistance Program or an alternate training program agreeable to the Agency, at her own expense, and to create and implement a reasonable accommodation policy, approved by the Agency, at any and all of her lease or rental properties.’ (PO, Page 33, Lines 7-14).

(Emphasis in original) (Agency’s Exceptions, p. 2) The Agency requested that the language be amended to: (1) specify the time by which the training and policy shall be completed, (2) specify that the training be conducted by an agency or entity acceptable to the Agency and (3) provide the Agency with a copy of the policy. The Agency requested that Respondent be ordered to complete the training within 180 days of the date of issuance of the Final Order, and that Respondent be ordered to implement and post a policy within 120 days of the date of issuance of the Final Order.

Since the language as written already states that the training shall be conducted by either the Agency’s Technical Assistance Program “or an alternate training program agreeable to the Agency * * *” and that Respondent must “create and implement a reasonable accommodation policy, approved by the Agency * * *”, the Agency’s second and third amendments are unnecessary. (Emphasis added) The Agency’s suggested time requirements, however, are necessary and reasonable. The Agency’s Exception # 2 is GRANTED in part and DENIED in part.

RESPONDENT’S EXCEPTIONS

Respondent also submitted two exceptions to the Proposed Order: “1. The ALJ erred in failing to make any findings related to culpability of Respondent, vis-à-vis culpability of her deceased husband.”

Respondent argued that the forum “erred in imputing the actions of Mr. Dickinson to Respondent, who the evidence showed did not bear any discriminatory feelings, and who at most merely demurely stood by her husband in his final days.” (Respondent’s Exceptions, p. 1-2)

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Respondent argued that the letter sent to BOLI Civil Rights Investigator Perdue,

and referenced in the Proposed Order as a source of Complainant Moore’s distress, was authored by the deceased Mr. Dickinson, not Respondent. However, the forum noted this fact in Finding of Fact – The Merits #14. Respondent joined in her husband’s letter, signing it as true “under penalty of perjury.” Her participation in the letter was at odds with her subsequent denial of making extremely derogatory remarks about Complainant Moore’s children. As such, the forum did not find her testimony credible on that issue. Complainant Moore’s interactions about the rental unit occurred with Respondent, and the denials of Complainant Moore’s application, based on discriminatory bases, came from Respondent. Respondent’s first Exception is DENIED.

“2. The ALJ fundamentally erred in ignoring Oregon policy on homelessness, and making an excessive award under the circumstances.”

In support of her second exception, Respondent argued:

“Respondent is a person of color, which was not addressed in the ALJ’s findings. Most troubling, in her findings, the ALJ effectively renders Respondent homeless. As evident during the hearing, Respondent is of limited means, represented by pro bono counsel, and whose livelihood depends upon the rental income from the property at issue – her only source of income. This evidence was uncontested. * * *

“The espoused public policy of the State of Oregon is to protect communities of color, low-income families, and other vulnerable populations with reasonable protections to help people keep their homes, and keep communities intact. * * *

“Here the ALJ’s remedy is excessive, and runs contrary to existing governmental policy in that it effectively renders Respondent homeless. * * *”

(Respondent’s Exceptions, p. 2-3)

Respondent did not contest liability in this case, nor did she object to the exhibits offered at hearing. In consideration of the amount of damages awarded, the forum relied upon the testimony it found to be credible, the documentary evidence taken into the record and the forum’s precedent of comparable awards. As stated above, statutory authority and forum precedent firmly root the amount of damages in the harm experienced by an individual complainant. Circumstances or particular facts about a respondent are not relevant to the forum’s calculation of an award. However, the forum did consider Respondent’s limited financial resources when determining that no civil penalties should be awarded in this matter. Respondent’s second Exception is DENIED.

ORDER

A. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS 659A.850(4), and to eliminate the effects of Respondent’s violations of ORS

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659A.145(2)(a) and OAR 839-005-0205(1)(a), ORS 659A.145(2)(c) and OAR 839-005-0205(1)(c), ORS 659A.145(2)(g) and OAR 839-005-0220(2)(c), ORS 659A.421(2)(a) and OAR 839-005-0205(1)(a), ORS 659A.421(2)(c) and OAR 839-0050205( 1)(c), and as payment of the damages awarded, the Commissioner of the Bureau of Labor and Industries hereby orders Respondent Hye I. Dickinson, to deliver to the Administrative Prosecution Unit of the Bureau of Labor and Industries, 1045 State Office Building, 800 NE Oregon Street, Portland, Oregon 97232-2180, a certified check payable to the Bureau of Labor and Industries in trust for Complainant Valerie Moore in the amount of

1) THREE HUNDRED THOUSAND DOLLARS and ZERO CENTS ($300,000.00) representing emotional distress damages Valerie Moore incurred as a result of Respondent’s unlawful practices; plus,

2) Interest at the legal rate on the sum of THREE HUNDRED THOUSAND DOLLARS and ZERO CENTS ($300,000.00) from the date the Final Order is issued until paid.

B. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS 659A.850(4), and to eliminate the effects of Respondent’s violations of ORS

659A.145(2)(a) and OAR 839-005-0205(1)(a), ORS 659A.145(2)(c) and OAR 839-005-0205(1)(c), ORS 659A.145(2)(g) and OAR 839-005-0220(2)(c), ORS 659A.421(2)(a) and OAR 839-005-0205(1)(a), ORS 659A.421(2)(c) and OAR 839-0050205( 1)(c), and as payment of the damages awarded, the Commissioner of the Bureau of Labor and Industries hereby orders Respondent Hye I. Dickinson, to deliver to the Administrative

Prosecution Unit of the Bureau of Labor and Industries, 1045 State Office Building, 800 NE Oregon Street, Portland, Oregon 97232-2180, a certified check payable to the Bureau of Labor and Industries in trust for Complainant Fair Housing Council of Oregon in the amount of:

1) SEVEN THOUSAND SIX HUNDRED AND SIXTY-NINE DOLLARS

and ZERO CENTS ($7,669.00), representing damages for out-of-pocket expenses incurred by Fair Housing Council of Oregon as a result of Respondent’s unlawful practices; plus,

2) Interest at the legal rate on the sum of SEVEN THOUSAND SIX HUNDRED AND SIXTY-NINE DOLLARS and ZERO CENTS ($7,669.00) from the date the Final Order is issued until paid.

C. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS 659A.850(4), the Commissioner of the Bureau of Labor and Industries hereby orders Respondent Hye I. Dickinson to cease and desist from unlawfully discrimination,

pursuant to ORS 659A.145 and ORS 659A.421. D. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS

659A.850(4), the Commissioner of the Bureau of Labor and Industries hereby orders Respondent Hye I. Dickinson, as long as she rents or leases real property, to be

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trained on the correct application of state and federal housing laws by the Bureau of Labor and Industries Technical Assistance Program or an alternate training program agreeable to the Agency, at her own expense, and to create and implement a reasonable accommodation policy, approved by the Agency, at any and all of her lease or rental properties.

1) Respondent shall provide proof of completion of the training to the

Agency’s Administrative Prosecution Unit no later than180 days from the date of issuance of this Final Order.

2) Respondent shall implement and post a reasonable accommodation policy, approved by the Agency’s Administrative Prosecution Unit, at any and all of her lease rental properties no later than 120 days from the date of issuance of this Final Order.

3) Respondent shall provide an initial draft of said policy to the Agency’s Administrative Prosecution Unit no later than 45 days from the date of issuance of this Final Order, unless a later date within 120 days from the issuance of this Final Order is agreed upon by the Agency and Respondent.

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_____________________________

In the Matter of

CITY OF THE DALLES, COLUMBIA

GATEWAY URBAN RENEWAL AGENCY AND

TOKOLA PROPERTIES, INC., REQUESTERS, CASE NOS. 29-19

Final Order of Commissioner Val Hoyle

Issued April 8, 2019

_____________________________

SYNOPSIS

City of The Dalles, Columbia Gateway Urban Renewal Agency and Tokola Properties, Inc. requested a Determination as to whether the proposed urban renewal project to construct a mixed-use development in The Dalles, Oregon would be a public works on which payment of the prevailing rate of wage is or would be required under ORS 279C.840. The Agency correctly determined that the proposed project is a public works project under ORS 279C.800(6)(a)(B) (2017). Therefore, payment of the prevailing rate of wage to workers on the project would be required under ORS 279C.840.

_____________________________

The above-entitled case was assigned for hearing to Jennifer Gaddis, designated as Administrative Law Judge (“ALJ”) by Val Hoyle, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The Bureau of Labor and Industries (“BOLI” or “the Agency”) was represented by Administrative Prosecutor Adam Jeffries, an employee of the Agency. Requesters City of The Dalles (“The Dalles”) and Columbia Gateway Urban Renewal Agency (“URA”) were represented by Mr. Gene Parker. Requester Tokola Properties, Inc. (“Tokola Properties”) was represented by Mr. Gregory Miner.1 On December 3, 2018, a contested case hearing regarding the Agency’s Prevailing Wage Rate (“PWR”) Determination was held, at the Oregon Employment Department office located at 700 Union St, The Dalles, Oregon.

The Agency called BOLI PWR Technical Assistance Coordinator Susan Wooley as a witness. The Dalles and URA called Mr. Matthew Klebs and Mr. Steve Harris as witnesses. Tokola Properties called Mr. Owen Bartels and Mr. Dwight Unti. The forum received into evidence Administrative exhibits X1 through X12. The forum also received the following Agency exhibits:

1) A1 through A13;

1 The Dalles, URA and Tokola Properties are referred to collectively as “Requesters.”

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2) A15;

3) A17; and

4) A19 through A22.

The forum received the following Requester exhibits:

1) R12a;

2) R14; and

3) R23;

Having fully considered the entire record in this matter, I, Val Hoyle, Commissioner of the Bureau of Labor and Industries, hereby make the following Findings of Fact (Procedural, On the Merits, and Ultimate2), Conclusions of Law, Opinion, and Order.


1) On May 8, 2018, The Dalles and URA, through counsel Gene E. Parker, submitted a written request for a determination under ORS 279C.817 ("Coverage Determination") as to whether their proposed project, “The Tony’s Building,” was a "public work, subject to the payment of prevailing wages under ORS 279C.840." Tokola Properties, through its counsel Gregory J. Miner, joined in their request. The proposed project (“the Project”) involved the demolition of an existing structure and the construction of a “mixed-use redevelopment,” which would include housing, parking and retail space. (Ex. A1, A15)

2) Relying on information accompanying the request and additional

information subsequently provided to BOLI by Requesters, the Agency issued a Coverage Determination on July 17, 2018. The Agency initially determined that the PWR laws would not apply to the Project. (Ex. A11)

3) On August 6, 2018, The Dalles and URA filed a request for a contested

case hearing on the Agency’s July 17, 2018 Coverage Determination. (Ex. A14) 4) After the July 17th determination was issued, the Agency subsequently

received further information from Requesters, causing the Agency to amend its determination and issue an Amended Coverage Determination on August 9, 2018. The Amended Coverage Determination contained the following “Conclusions of Law” and “Determination:”


Findings of Fact – The Merits.

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“CONCLUSIONS OF LAW

“1. The project is not being carried out or contracted for by a public agency and, as such, does not meet the definition of ‘public works’ under ORS 279C.800(6)(a)(A).

“2. Under ORS 279C.810(1)(a)(B), ‘funds of a public agency’ does not include building and development permit fees paid or waived by the public agency. Therefore, the amounts [The Dalles and URA] have paid or will pay for city systems development charges, city fees and charges, Park and Recreation District Systems development charges, Building Codes Division fees and charges, and school district construction excise tax are not considered funds of a public agency used on the Project.

“3. Under ORS 279C.810(1)(a)(D), ‘funds of a public agency’ does not include land that a public agency sells to a private entity at fair market value. [The Dalles and URA] will sell the Property to the [Tokola Properties] for $10[.00], which is $309,990[.00] less than the appraised fair market value. However, under ORS 279C.810(1)(a)(E), ‘funds of a public agency’ does not include the difference between the value of land that a public agency sells to a private entity as determined at the time of the sale after taking into account any plan, requirement, covenant, condition, restriction or other limitation, exclusive of zoning or land use regulations, that the public agency imposes on the development or use of the land, and the fair market value of the land if the land is not subject to those limitations.

“According to the appraisal for the Property, the ‘estimated land residual value with profit’ is -$2,100,000[.00] due to the restrictions and limitations [The Dalles and URA] have imposed on the Project. While [The Dalles and URA] will convey the Property to the [Tokola Properties] at less than fair market value, because the land has a negative value as a result of the restrictions and limitations the public agencies have imposed on the Project, the difference between the fair market value of the land and the sale price is not considered ‘funds of a public agency’ used on the Project.

“4. The Agency paid $81,350[.00] for a survey, an environmental assessment, and an archeological study for the Project. [The Dalles and URA] state that these expenditures are not funds of a public agency for multiple reasons.

“First, the costs were allocated between the Agency and the [Tokola Properties], and only the costs allocated to the [Tokola Properties] were considered ‘funds of a public agency’ by [The Dalles and URA]. However, regardless of the proportion of benefit to either party, the fact remains that the total amount expended by the Agency for those costs is $81,350[.00]. BOLI will consider the full costs of the survey, environmental assessment, and archeological study when determining whether the costs are ‘funds of a public agency’ under OAR 839-025-0004(9)(a).

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“Second, [The Dalles and URA] state these costs are for ‘staff resources’ and not ‘funds of a public agency’ under ORS 279C.810(1)(a)(F). Under ORS 279C.810(1)(a)(F), ‘funds of a public agency’ does not include staff resources of the public agency used to manage a project or to provide a principal source of supervision, coordination or oversight of a project. Additionally, under OAR 839-025-0004(27), ‘staff resources of a public agency’ means employees of the public agency who may manage, supervise or oversee a project, or employees of a public agency used to design or inspect one or more components of a project, but not persons who with whom a public agency contracted to perform such services.’ The costs for the survey, environmental assessment, and archeological study were for persons with whom the agency contracted to perform those services, not employees of a public agency, and therefore these costs cannot be considered ‘staff resources of the public agency.’

“Third, [The Dalles and URA] state that these costs are ‘value added to the land’ and not funds of a public agency under ORS 279C.810(1)(a)(I). Under ORS 279C.810(1)(a)(I), ‘funds of a public agency’ does not include value added to the land as a consequence of a public site preparation, demolition of real property or remediation or removal of environmental contamination, except for value added in excess of the expenses the public agency incurred in the site preparation, demolition or remediation or removal when the land is sold for use in a project otherwise subject to ORS 279C.800 to ORS 279C.870. Whether or not a property survey, an environmental assessment, or an archaeological study may be considered ‘site preparation,’ this provision in statute exempts [sic] ‘funds of a public agency’ the value added to the land as a result of site preparation or demolition paid for by a public agency; it does not exempt the costs of the site preparation or demolition paid for by the public agency. It is unlikely the survey, environmental assessment, or archaeological study has or will add value to the land, but whether they do or not, the $81,350[.00] the Agency paid for these items cannot be considered ‘value added to the land as a result of site preparation or demolition paid for by a public agency.’

“Finally, [The Dalles and URA] state these costs are not funds of a public agency under ORS 279C.810(1)(a)(E). This statute provides that ‘funds of a public agency’ does not include the difference between:

“(i) The value of land that the public agency sells to a private entity as determined at the time of the sale after taking into account the plan, requirement, covenant, condition, restriction or other limitation, exclusive of zoning or land use regulations, that the public agency imposes on the development or use of the land; and

“(ii) The fair market value of the land if the land is not subject to the limitations described in sub-subparagraph (i) of this subparagraph.

“This provision relates to the value of the land under certain circumstances. It does not reference the expenditures a public agency makes to

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pay for the costs of such items as surveys, environmental assessments, or archeological studies. Therefore, it is not appropriate to analyze these costs under ORS 279C.810(1)(a)(E).

“The $81,350[.00] the agency paid for the survey, environmental assessment, and archaeological study is therefore ‘funds of a public agency’ used on the Project.

“5. The Agency has paid or will pay a total of approximately $637,551.75 for demolition and site preparation costs. [The Dalles and URA] state that these expenditures are not funds of a public agency for two reasons.

“First, [The Dalles and URA] state that these costs are ‘value added to the land’ and not funds of a public agency under ORS 279C.810(1)(a)(I). This statute exempts from ‘funds of a public agency’ the value added to the land as a result of site preparation or demolition paid for by a public agency; it does not exempt the costs of site preparation or demolition paid for by the public agency. It is not known whether the demolition or site preparation has or will add value to the land, but whether they do or not, the $637,551.75 the Agency paid for these items cannot be considered ‘value added to the land as a result of site preparation or demolition paid for by a public agency.’

“Second, [The Dalles and URA] state these costs are not funds of a public agency under ORS 279C.810(1)(a)(E). This provision relates to the value of land under certain circumstances. It does not reference the expenditures a public agency makes to pay for demolition or site preparation. Therefore, it is not appropriate to analyze these costs under ORS 279C.810(1)(a)(E).

“The $637,551.75 the Agency paid for demolition and site preparation is therefore ‘funds of a public agency’ used on the Project.

“6. Under ORS 279C.800(6)(a)(B), ‘public works’ includes a project that uses $750,000[.00] or more of funds of a public agency for constructing, reconstructing, painting or performing a major renovation on a road, highway, building, structure or improvement of any type. The Project will use approximately $1,422,600.75 in funds of a public agency, as shown in the table below. Therefore, the Project meets the definition of ‘public works’ under ORS 279C.800(6)(a)(B).

Appraisal $8,000.00

Economic Analysis $25,846.00

Security Fencing $500.00

Marketing Consultant $1,800.00

Survey $3,850.00

Environmental Assessment $2,500.00

Archeological Study $75,000.00

NW Natural Gas $80,000.00

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PUD Relocation $118,022.00

City water/sewer relocation $175,961.50

Oil Tank $8,920.00

Demolition $250,000.00

Lab and Asbestos testing $2,800.00

Easement survey work $1,848.25

Additional financial assistance $667,553.00 Total Funds of a Public Agency: $1,422,600.75

“7. No public agency will occupy or use any of the square footage of the Project. Therefore, the Project does not meet the definition of ‘public works’ under ORS 279C.800(6)(a)(C).

“DETERMINATION

“Based on the foregoing, the Prevailing Wage Rate laws, ORS 279C.800 to ORS 279C.870, and OAR Chapter 839, Division 025, will apply to The Tony’s Building project.

“This determination is based on the agency’s file as of the date of this determination. The commissioner may make a different determination if any of the project information is incorrect or if the project or project documents are modified or supplemented after the date of this determination.”

(Emphasis in original) (Ex. A15)

5) On August 22, 2018, Requesters collectively filed a request for a contested case hearing on the Amended Coverage Determination, issued August 9, 2018. (Ex. A16)

6) On or about September 19, 2018, the Agency filed a Request for Hearing

form with the Contested Case Coordinator. (Ex. X1) 7) On September 20, 2018, the forum issued a Notice of Hearing to

Requesters and the Agency setting the time and place of hearing for 9:30 a.m. on November 8, 2018, at the offices of the Oregon Employment Department in The Dalles, Oregon. The Notice of Hearing also stated that the matter was assigned to ALJ Jennifer Gaddis. Together with the Notice of Hearing, the forum sent a copy of Requesters’ request for a contested case, the Agency’s August 9, 2018 Amended Coverage Determination, a Multilanguage Form, a document entitled "Summary of Contested Case Rights and Procedures" containing the information required by ORS 183.413, a document entitled "Servicemembers Civil Relief Act (SCRA) Notification, and a copy of the forum's contested case hearings rules, OAR 839-050-000 to 839-050-0445. (Exs. X2, X2A-2G)

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8) On September 26, 2018, Requesters filed their Unopposed Motion for Postponement of Hearing. The forum granted Requester’s motion, via interim order, on September 27, 2018. The forum also included information on the required prehearing submissions, within the order. (Exs. X3, X4)

9) On November 13, 2018, the Agency filed its Submissions. (Ex. X5) 10) On November 13, 2018, Requesters filed their Statement of the Reasons

of Requestors[’] [sic] * * * for Contesting Agency’s Determination, their List of Hearing Exhibits * * * and their List of Witnesses and Summary of Witness Testimony * * *. (Exs. X6-X8)

11) On November 13, 2018, Requesters also filed their Motion to Present

Evidence First in Order of Requesters City of The Dalles, The Columbia Gateway Urban Renewal Agency, and Tokola Properties, Inc. (Ex. X9)

12) On November 16, 2018, the forum issued its Interim Order Setting

Prehearing Conference. 13) On November 21, 2018, the forum issued its Interim Order re: November

20, 2018 Prehearing Conference. In the interim order, the forum corrected the case caption to reflect all Requesters, denied Requesters’ Motion to Present Evidence First * * * and explained the limited scope of the hearing. The order stated:

“On November 13, 2018, the case participants requested a prehearing

conference to discuss the presentation of evidence at hearing and potential exhibits offered by the Requesters. A brief prehearing conference was held on November 20, 2018. The prehearing conference was digitally recorded. Gene Parker appeared telephonically, on behalf of Requesters City of the Dalles and Columbia Gateway Urban Renewal Agency; Greg Miner appeared telephonically, on behalf of Requester Tokola Properties, Inc.; Adam Jeffries appeared telephonically, on behalf of the Agency.

“REQUESTER COLUMBIA GATEWAY URBAN RENEWAL AGENCY

“Upon review of the Notice of Hearing, the forum noted that only two of the requesters were listed in the case caption.3 During the prehearing conference, the forum confirmed that Mr. Gene Parker represented both the City of the Dalles and Columbia Gateway Urban Renewal Agency on this matter. The forum also noted that both Requesters were listed, under Mr. Parker’s name, on the Certificate of Service as having been mailed a copy of the Notice of Hearing. The address appeared on the Certificate of Service as follows:

3 Requester Columbia Gateway Urban Renewal Agency was not listed in the case caption, despite

having joined Requesters City of the Dalles and Tokola Properties in their request for hearing. (Request for Hearing, August 22, 2018)

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“‘Gene E. Parker, City Attorney City of the Dalles Columbia Gateway Urban Renewal Agency 313 Court Street The Dalles, OR 97058’ Mr. Parker confirmed he had received service on behalf of both the City of the Dalles and Columbia Gateway Urban Renewal Agency. All case participants stated that they had no objection to the forum correcting the scrivener’s error which omitted Requester Columbia Gateway Urban Renewal Agency from the case caption, via this interim order. The case caption shall reflect this change, as indicated in [sic] above, on all further filings and orders.

“PRESENTATION OF EVIDENCE

“In their Motion to Present Evidence First, filed November 13, 2018, Requesters moved to present their case prior to presentation of the Agency’s case. Requesters indicated, and the Agency confirmed during the prehearing conference, that the Agency had no objection to their motion. Requesters argued that the Division 50 contested case rules were silent on the issue and directed the forum to OAR 137-003-0040(3), which states:

“‘The hearing shall be conducted, subject to the discretion of the presiding officer, so as to include the following: “(a) The statement and evidence of the proponent in support of its

action; (b) The statement and evidence of opponents, interested agencies,

and other parties; except that limited parties may address only subjects within the area to which they have been limited;

(c) Any rebuttal evidence; (d) Any closing arguments.’

(Emphasis added). Requesters argued that, under this rule, Requesters are the proponents since they ‘have filed their appeal and request for hearing.’ (Requesters’ motion, p. 3) Requesters stated that the Division 50 contested case rules addressed presentation of evidence only in administrative prosecutions of prevailing wage rate violations.

“Although OAR 839-050-0250(3) specifically uses language reflecting the presentation of evidence in cases involving charging documents, the burden of proof remains with the Agency in hearings regarding prevailing wage rate (‘PWR’) determinations.4 As such, the Agency should present its case, followed

4 “PWR determination hearings are governed by the procedures set forth in OAR 839-050-0000 to OAR

839-050-0430, except to the extent those procedures are modified by OAR 839-050-0445. OAR 839-050-0445(2).

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by the Requesters’ case and then the Agency may present any rebuttal evidence. OAR 137-003-0040(3) conforms to this model. The Agency is the proponent of its determination, bears the burden of proof as to the determination and should present its case first. Further, attached to the Notice of Hearing in this matter, was a document entitled ‘Summary of Contested Case Rights and Procedures,’ and subtitled ‘Wage and Hour Division – Prevailing Wage Rate Determination.’ Section 14, entitled ‘Hearing Procedure,’ lists the presentation of evidence as follows:

‘a) The agency and party may make opening statements. b) The agency will present evidence in support of its case. c) The party will have an opportunity to present evidence in support of

its case and to rebut the Agency’s evidence. d) The agency may present evidence to rebut evidence presented by

the party. e) The agency and the party may make closing arguments. f) After the Proposed Order is issued, either the agency or the party

may file written Exceptions. OAR 839-050-0250.’

(Emphasis in original). Requesters’ Motion to Present Evidence First is DENIED.

“Evidence and Witnesses at Hearing

“Hearings conducted pursuant to OAR 839-050-0445 are unique in that, unlike contested cases involving the administrative prosecution of violations within the Agency’s jurisdiction, PWR determination hearings are very narrow in scope. As such, the hearing process is intended to only address the determination of the PWR Unit and the materials that the PWR Unit considered in order to reach its determination. The rules regarding admissible evidence in such a hearing demonstrate this limited scope. Pursuant to OAR 839-050-0445(5), ‘within ten days after the Notice of Hearing is issued, the administrative law judge will issue an order requiring:

“(a) The party to file a written statement identifying all of the party’s

reasons for contesting the determination; and (b) The agency to file copies of all materials provided by the requester

under OAR 839-025-0005(1)-(4), a copy of the agency’s determination, and a copy of any other materials the agency relied on to reach its determination. The agency will mark these materials and the agency’s determination for identification in the manner set forth in 839-050-0270.’

The rule does not allow for the admission of exhibits outside of what was provided to and considered by the PWR Unit for the determination. OAR 839-050-0445(5)-(6). To do so would render the hearing process of analyzing the

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determination and materials meaningless, as it would involve new evidence that was not originally considered.

“The forum may also narrow the scope of testimony. Pursuant to OAR 839-050-0445(8), ‘after reviewing the materials and statements filed pursuant to sections (5) and (7) of this rule, the administrative law judge may issue an interim order finding that the testimony of any proposed witness is irrelevant to the issues at hearing and disallowing the proposed testimony. The administrative law judge may also request that the party or agency bring additional witnesses to the hearing.’ The case participants are advised that unless a witness’s testimony pertains to the materials provided by Requesters under OAR 839-025-0005(1)-(4) or the reasons for the Agency’s determination, their testimony will not be considered by the forum. OAR 839-050-0445(8). Evidence presented at hearing is limited to the exhibits filed pursuant to OAR 839-050-0445(5)(b) and witness testimony explaining the exhibits and their significance. OAR

839-050-0445(9).


(Emphasis in original) (Ex. X11) 14) On November 21, 2018, the Agency filed its Stipulated Facts, on behalf of all case participants. (Ex. X12) 15) On December 3, 2018, the hearing began. At the start of the hearing, the ALJ orally advised the Agency and Requesters of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing. (Hearing Record) 16) During the hearing, Requesters offered Ex. R12a. The Agency had no objection. Requester Ex. R12a was identical to Agency Ex. A1, p. 128 and p. 133, except that the pictures in R12a were in color. Ex. 12a was admitted.5 17) During the hearing, Requesters offered Ex. R14. The Agency had no objection. Ex. R14 was identical to Ex. A13, p. 6. Witnesses, for both the Agency and Requesters, referred to a demonstrative aid of an enlarged version of Ex. R14 and referred to it as “R14,” during their testimony. In the interest of clarity of the record, Ex. R14 was admitted. 18) During the hearing, Requesters also offered Exs. R23 through R27. Requesters did not previously provide the exhibits to the Agency as part of the Agency’s Coverage Determination or Amended Coverage Determination. Requesters offered Ex. R23 as impeachment evidence, during their cross-examination of BOLI PWR Technical Assistance Coordinator Susan Wooley. Ms. Wooley testified on direct that the only

5 In this particular case, the fact that the photos were in color did not make a substantive difference to the

issues before the forum. Since the Agency did not object, the exhibit was admitted.

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pertinent legislative history that BOLI could find was compiled within Ex. A18, and that BOLI could not find anything specific to the statutory exemptions argued in this case. Requesters then offered Ex. R23 as impeachment evidence, since the exhibit consisted of legislative history regarding the statutory exemptions. Although not admissible for substantive purposes, impeachment evidence can be used to attack the credibility of the witness. State v. Gill, 3 Or. App. 488, 494 (1970). Pursuant to ORS 40.345, “the credibility of a witness may be attacked by any party, including the party calling the witness.”6 After reviewing the record in this matter, it is clear Ms. Wooley limited her testimony to what BOLI found, when it performed its legislative history search. There was no evidence that Ms. Wooley had, in fact, found the legislative history compiled in Ex. R23 and then testified falsely about it. Although the Agency did not object to the admission of Ex. R23, and the exhibit was admitted, it was not proper impeachment evidence and was given no weight. Had the exhibit been provided as part of Requesters’ request for a Coverage Determination, the forum could have evaluated the exhibit substantively, pursuant to OAR 839-050-0445(5)(b) and (9). 19) On cross-examination, Requesters also offered a Request for Coverage Determination, made by Metro and the City of Hillsboro, and the resulting Coverage Determination issued by the Agency on March 7, 2012. These documents were marked as Exs. R24 and R25 and Requesters offered them for the purposes of impeachment. Ms. Wooley testified, however, that she was not involved with the determination nor did she have any personal knowledge of the determination. The exhibits were not proper impeachment evidence of Ms. Wooley’s testimony and were not admitted into the record. 20) During Requesters’ direct examination of Dwight Unti, the Agency objected to the use of Exs. R26 and R27, which were documents prepared by Mr. Unti. The forum did not admit the exhibits, since they were not provided as part of the Request for Coverage Determination. Pursuant to OAR 839-050-0445(5)(b) and (9), exhibits in PWR Determination Hearings are limited to “* * * all materials provided by the requester under OAR 839-025-0005(1)–(4), a copy of the agency’s determination, and a copy of any other materials the agency relied on to reach its determination.” 21) After the conclusion of Requesters’ case, the Agency called Ms. Wooley as a rebuttal witness. During her rebuttal testimony, the Agency asked Ms. Wooley to address Mr. Unti’s testimony regarding unrelated Coverage Determinations, that arrived at a different result than that which was the subject of the hearing. Ms. Wooley testified that she would need to review the specific files to address the determinations accurately. She also speculated that one of the determinations could have been a file she was familiar with and explained why the outcome was different in that case. During her testimony about that determination, she referenced factors listed in ORS 279C.827.

6 “While the forum may draw on the Oregon Evidence Code for guidance in a matter not addressed in this

forum’s contested case hearing rules, these proceedings are not governed by the Oregon Evidence Code.” In the Matter of Gordy’s Truck Stop, LLC, 28 BOLI 200, 215 (2007).

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Pursuant to ORS 279C.827(1)(c), in determining if a project has been improperly divided, the commissioner “shall consider:

“(A) The physical separation of the project structures; (B) The timing of the work on project phases or structures; (C) The continuity of project contractors and subcontractors working on

project parts or phases; (D) The manner in which the public agency and the contractors

administer and implement the project; (E) Whether a single public works project includes several types of

improvements or structures; and (F) Whether the combined improvements or structures have an overall

purpose or function.”

Ms. Wooley went on to testify that ORS 279C.827 is regularly considered during the deliberation of all Coverage Determinations.

Requesters moved to strike her testimony regarding ORS 279C.827, arguing that the Agency had not given notice of its application to the matter before the forum. The forum denied the Motion to Strike because ORS 279C.827(2)(a) sets forth a statutory right of the commissioner to consider particular factors, at the commissioner’s sole discretion. ORS 279C.827(2)(a) states “[t]he commissioner may apply the considerations set forth in subsection (1)(c) of this section to determine whether to divide a public works project into more than one contract, regardless of whether the commissioner believes that a person or public agency divided the public works project for the purpose of avoiding compliance with ORS 279C.800 to 279C.870.” Thus, the commissioner need not suspect a requester is attempting to avoid compliance with PWR laws, nor must the commissioner wait for a requester to raise the issue of a divided project; she has the discretion to examine the issue when she feels it is appropriate to do so. Ms. Wooley’s testimony regarding ORS 279C.827(1)(c) was initially offered to rebut the evidence elicited by Requesters during the direct examination of Mr. Unti, regarding coverage determinations not before the forum. Pursuant to OAR 839-050-0250(7), the Agency is entitled to offer rebuttal evidence. Ms. Wooley testified that ORS 279C.827 lists factors that are always considered by the commissioner because the commissioner has the discretion to do so. However, as Requesters noted in their cross-examination, neither Requesters nor the Agency ever argued or alleged that a divided project was involved in this matter. Pursuant to ORS 183.415(3)(c), a contested case hearing notice “must include * * * [a] reference to the particular sections of the statutes and rules involved * * *.” The Notice and accompanying documents for this contested case hearing met the requirements of ORS 183.415(3). Requesters’ Motion to Strike is denied.

22) The hearing concluded and the record closed on December 4, 2018.

(Hearing Record)

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23) On February 28, 2019, the ALJ issued a proposed order that notified the Agency and Requesters that they were entitled to file exceptions to the proposed order within ten days of the order’s issuance. (Ex. X13)

24) On March 8, 2019, Requesters filed their Exceptions to Proposed Final

Order. (Ex. X14) 25) On March 11, 2019, the Agency filed its Exceptions to Proposed Order.

(Ex. X15) 26) On March 18, 2019, Requesters filed their Response to Agency

Exceptions to Proposed Order. (Ex. X16) There is no rule allowing a case participant to file a response to Exceptions and, therefore, Requesters’ Response was not considered. OAR 839-050-0380.


1) In their filing entitled “Stipulated Facts,” filed by the Agency on November 21, 2018, the case participants stipulated to the following:

a. “* * * * * [The Dalles] approved a [URA] Plan (‘Plan’) in 1990, and

has amended the Plan numerous times through the years. The 13th amendment of the Plan, approved on May 12, 2014, contains the following mission statement: The Mission of [URA] is to eliminate blight and depreciating property values within [URA]'s jurisdiction and in the process, [attract] aesthetically pleasing, job producing private investments that will stabilize or increase property values and [protect] the area's historic places and values.

b. “On October 30, 2015, [The Dalles] published a Request for Qualifications (‘RFQ’) to solicit qualified development teams for the redevelopment of four parcels of property located on Federal Street between First Street and Second Street in The Dalles, Oregon. An existing building on the property is commonly known as The Tony's Building. The area of redevelopment includes an adjacent city-owned parking lot, the existing alley that runs through the property, and additional parking spaces, collectively (the ‘Property’).

c. “On January 5, 2016, [The Dalles and URA] and [Tokola Properties] entered into an Exclusive Negotiating Agreement (‘ENA’) for joint development of the Property. Although this ENA expired, [The Dalles and URA] and [Tokola Properties] entered into a new ENA for redevelopment of the Property, effective August 2, 2016.

d. “On February 26, 2016, [URA] acquired the Property for the purpose of a mixed-use redevelopment, to include market rate

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housing, parking, and retail space. The proposed redevelopment is referred to as The Tony's Building (the ‘Project’).

e. “On February 28, 2018, [URA] and [Tokola Properties] entered into an Agreement for Disposition and Development of Real Property (the ‘Agreement’). The Agreement governs the sale and redevelopment of the Property.

f. “Under the Agreement, [Tokola Properties] will purchase the Property from [The Dalles and URA] for ten dollars ($10[.00]).

g. “The Agreement requires development of the Project within certain timelines, and requires the Project contain numerous elements, including:

i. “A mixed-use development constructed in a single building of approximately 47,000 square feet in size and comprised of four stories on approximately 0.59 acres of land.

ii. “49 market rate apartments with a mix of studio, one-bedroom, two-bedroom, and three-bedroom floor plans.

iii. “Approximately 1,500 square feet of ground-level retail space)

iv. “44 tuck-under, off-street parking spaces and five offsite parking spaces.

v. “A bicycle wash and repair area.

vi. “A fitness center.

vii. “Controlled building access.

viii. “Elevator access to all floors.

ix. “A community room.

h. “There are no plans for any public agencies to use or occupy any of the square footage of the Project.

i. “The Agreement states in Section 3.1 that [The Dalles and URA] will have and exercise no control over the construction of the Project.

j. “The Agreement stipulates under Section 9.4 that [The Dalles and URA] have the following remedies if [Tokola Properties] fails to

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obtain a certificate of completion within 36 months of the closing date:

i. “Re-enter and take possession of the Property;

ii. “Terminate (and revest in [The Dalles and URA]) the estate conveyed by the Deed for the Property;

iii. “Terminate [Tokola Properties]’s right to develop the Property;

iv. “Provide [The Dalles and URA] with the right to resell the Property.

k. “Under Section 6.3 of the Agreement, [The Dalles and URA] agree to pay [Tokola Properties] $750,000[.00] in financial assistance for the Project. Under an amendment to the Agreement, dated June 20, 2018, the [p]arties have agreed to limit this amount to $749,900[.00].

l. “[URA] has paid or will pay for $388,508.25 in building and development permit fees, including city systems development charges, city fees and charges, Parks and Recreation District systems development charges, Building Codes Division fees and charges, and school district construction excise tax. The [p]arties agree the following are not funds of a public agency used on the Project:

City Systems Development Charges (SDCs) $116,511.50 City Fees and Charges $440.00 Parks and Recreation SDCs $56,938.00 Building Codes Division Fees/Charges $123,898.75 School District Construction Excise Tax $90,720.00

m. “An appraisal of the Property was done by Integra Realty Resources, effective January 16, 2018, The appraisal states that the estimated land value (i.e., the as-is fair market value) is $310,000[.00]. The fair market value of the Property less the sale price is $309,990[.00]. The [p]arties agree that the fair market value of the property less sale price in the amount of $309,990.00, are not funds of a public agency used on the Project.

n. “[URA] paid $8,000[.00] for the appraisal for the Property. The [p]arties agree that the $8,000[.00] paid for the appraisal for the Property are funds of a public agency used on the Project.

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o. “[URA] paid $25,846[.00] for an economic analysis for the Project. The [p]arties agree that the $25,846[.00] paid for an economic analysis for the Project are funds of a public agency used on the Project.

p. “[The Dalles] will be providing security fencing around the excavation site for the City-owned parcels which make up the parking lot. The estimated cost for providing the security fencing is $500.00. The [p]arties agree that the $500.00 paid for security fencing are funds of a public agency used on the Project.

q. “[URA] paid for a marketing consultant at a cost of $1,800.00. The [p]arties agree that the $1,800.00 paid for a marketing consultant are funds of a public agency used on the Project.

r. “The [p]arties agree that the $667,553.00 in financial assistance [URA] will pay [Tokola Properties] are funds of a public agency used on the Project.

s. “* * * the [p]arties agree that the following are funds of a public agency used on the Project (BOLI contends additional funds of a public agency are being used on the Project):

Appraisal $8,000.00




Additional Financial Assistance Paid to Developer $667,553,00

Total $703,699.00

t. “[URA] paid $3,850[.00] for a survey of the Property. [URA] required a boundary survey, at a cost of $1,925[.00], [Tokola Properties] requested and [URA] agreed to upgrade the survey to a full ALTA survey for [Tokola Properties]'s use, which increased the cost to $3,850[.00]. The [p]arties agree that the additional cost of $1,925[.00] for the ALTA survey to be funds of a public agency used on the Project. Parties do not agree on whether the remaining $1,925 for the boundary survey should be considered funds of a public agency used on the Project or ‘exempt’ under ORS 297C.810(1)(a)(I).

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u. “[URA] paid $2,500[.00] for an environmental assessment of the Property. [URA] and [Tokola Properties] agreed that the assessment was of equal value to both [p]arties, and as a result, [The Dalles and URA] considered half of the cost allocated to [Tokola Properties], or $1,250[.00], to be funds of a public agency and will be deducted from the financial assistance to be paid to [Tokola Properties]. The [p]arties agree that $1,250[.00] of the environmental assessment are funds of a public agency used on the Project. The [p]arties disagree on whether the remaining $1,250[.00] should be considered funds of a public agency used on the Project or exempt under ORS 297C.810(1)(a)(I).

v. “According to the Determination Request Letter dated May 8, 2018, pages 8-9, [The Dalles and URA] contracted for an archeological study covering the Property, the adjacent alley, and the [c]ity parking lot parcels. The cost was $75,000[.00]. [The Dalles] ‘must deal with archeological issues throughout its downtown to allow broad-based development to occur. [Tokola Properties] only requires an archeological survey to guide it in its excavation activities after [URA]'s site preparation work.’ [URA] and [Tokola Properties] agreed on an allocation of the cost of the study ‘based on the breadth of the archeological study and the relevant benefit to [The Dalles and URA] for their broader development work and to [Tokola Properties] for its site-specific excavation work.’ The cost allocated to [Tokola Properties] was $43,026.00. The [p]arties agree that $43,026.00 are funds of a public agency used on the Project. The [p]arties disagree on whether the remaining $31,974.00 for the archeological study should be considered funds of a public agency used on the Project or ‘exempt’ under ORS 297C.810(1)(a)(I).

w. “* * * the [p]arties agree that some amount of the following costs are funds of a public agency used on the Project. The [p]arties disagree on the amount that should be considered funds of a public agency used on the Project as shown below:

Cost [The Dalles and URA] and [Tokola Properties] consider to be funds of a public agency

BOLI considers to be funds of a public agency

Survey $1,925.00 $3,850.00

Environmental Assessment

$1,250.00 $2,500.00

Archeological Study $43,026.00 $75,000.00

Total $46,201.00 $81,350.00

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x. “* * * the [p]arties agree that the following amounts are funds of a public agency used on the Project (BOLI contends additional funds of a public agency are being used on the Project):

Appraisal $8,000.00




Survey (1/2 of total cost) $1,925.00

Environmental Assessment (1/2 of total cost) $1,250.00

Archeological Study (Allocated cost) $43,026.00

Additional financial assistance $667,553.00 Total: $749,900,000[.00]

y. “[URA] has paid or will pay for certain demolition and site preparation costs, including demolition of a building, moving utilities, moving an oil tank, asbestos testing, and an easement survey. The estimated total cost for this will be $637,551.75. [The Dalles and URA] consider these costs to be ‘Value added to the Property as consequence site preparation’ and therefore ‘exempt’ under ORS 297C.810(1)(a)(I). BOLI determined the following $637,551.75 for certain demolition and site preparation costs to be funds of a public agency used on the Project. [The Dalles and URA] and [Tokola Properties] disagree with BOLI's determination that the following costs are funds of public agency used on the Project:

Demolition of Building $250,000.00

NW Natural Gas $80,000.00 PUD Relocation $118,022.00 City Water/Sewer Relocation $175,961.50

Oil Tank Removal $8,920.00 Lab and Asbestos Testing $2,800.00 Easement Survey Work $1,848.25 Total $637,551.75

z. “* * * [The Dalles and URA] and [Tokola Properties] disagree with BOLl's determination that the following costs are funds of a public agency to be used on the Project:


NW Natural Gas $80,000.00 PUD Relocation $118,022.00 City Water/Sewer Relocation $175,961.50 Oil Tank Removal $8,920.00

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Lab and Asbestos Testing $2,800.00 Easement Survey Work $1,848.25 Survey (1/2 of total cost) $1,925.00 Environmental Assessment (1/2 of total cost) $1,250.00 Archeological Study (Non-Allocated cost) $31,974.00 Total $672,700.75

aa. “The appraisal of Integra Realty Resources (‘IRR’) included as Attachment 2 to [The Dalles and URA]’s Coverage Determination Request dated May 8, 2018, listed the ‘Estimated Cost of the Proposed Development before Land’ as $10,800,000[.00] (IRR appraisal, p. 123; Exhibit A-1, p. 214).

bb. “The IRR appraisal * * * listed the ‘Hypothetical Value As Stabilized through the Income Approach’ as $8,700,000[.00] (IRR, p. 123; Exhibit A-1, p. 214).

cc. “The IRR appraisal * * * listed the ‘Estimated Land Residual Value with Profit’ as a negative value, -$2,100,000[.00]. The ‘Estimated Land Residual Value with Profit’ of -$2,100,000 is shown as the difference between the $10,800,000 ‘Estimated Cost of Proposed Development before Land’ and the $8,700,000 "Hypothetical Value As Stabilized through the Income Approach’ (IRR, p. 123; Exhibit A-1, p. 214).”

(Ex. X12)

2) At the time of the Amended Coverage Determination, URA had paid or anticipated to pay $3,850.00 for a boundary survey, $2,500.00 for an environmental assessment and $75,000.00 for an archeological study of the Property, for a combined total of $81,350.00.7 (Testimony of Wooley; Exs. A9, A15, A21)

7 In its preparation of the July 17, 2018 Coverage Determination, the Agency understood Requesters had

“split costs” of the boundary survey, the environmental assessment and the archeological study, with Tokola Properties. In acknowledgment of these split costs, the Agency considered just $1,925.00 for the boundary survey, $1,250.00 for the environmental assessment and $43,026.00 for the archeological study (a total of $46,201.00), as paid for or anticipated to be paid for by URA and, therefore, “funds of a public agency.”

In regard to the August 9, 2018 Amended Coverage Determination, however, Ms. Wooley testified that “there is no provision for [splitting costs]” in PWR law, despite the Agency’s prior acknowledgment of the split costs. She clarified that, for purposes of the Amended Coverage Determination, the Agency did not consider the costs split between URA and Tokola Properties because the Agency learned that URA actually paid the costs in their entirety (a total of $81,350.00). Tokola Properties did not then reimburse URA for Tokola Properties’ portion of the split costs; rather, the amount was deducted from the additional financial assistance that URA had agreed to provide Tokola Properties. The additional financial assistance totaled $749,900.00 and the Agency accounted for URA’s deductions in its Amended Coverage Determination.

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3) At the time of the Amended Coverage Determination, URA had paid or anticipated to pay $637,551.75 in demolition and site preparation costs. These costs included demolition of a building, moving utilities, moving an oil tank, asbestos testing and an easement survey. (Testimony of Wooley; Exs. A15, A21)

4) A list of expenditures made or anticipated to be made by URA on the Project that are funds of a public agency, under ORS 279C.800(6)(a)(B), follows:

Appraisal $8,000.00




Boundary Survey $3,850.00

Environmental Assessment $2,500.00

Archeological Study $75,000.00

Financial Assistance $667,553.008


NW Natural Gas $80,000.00

PUD Relocation $118,022.00

City Water/Sewer Relocation $175,961.50

Oil Tank Removal $8,920.00

Lab and Asbestos Testing $2,800.00

Easement Survey Work $1,848.25

TOTAL $1,422,600.75

5) An appraisal was completed on the property in January of 2018. Mr. Bartels, an appraiser for the Project, was asked to perform a real estate appraisal that determined the “as-is value” of the land, as well as the “residual value” of the land.

a. The “as-is value” of the land was the value of the land, under the existing Tony’s Building, unencumbered by the Disposition and Development Agreement. Mr. Bartels estimated the as-is value of the land at $310,000.00.

b. The “residual value” of the land was the value of the completed and stabilized Project, less the costs incurred for completing the Project and an allocation of anticipated profit.9 Mr. Bartels estimated the residual value of the land at -$2,100,000.00.

(Testimony of Bartels; Ex. A1)

8 This amount reflects the deduction of the appraisal, economic analysis, security fencing, marketing

consultant, and the “split cost” amounts for the boundary survey, environmental assessment and archeological study, from the total financial assistance contemplated ($749,900.00 – ($8,000.00 + $25,846.00 + $500.00 + $1,800.00 + $1,925.00 + $1,250.00 + $43,026.00) = $667,553.00)

9 Mr. Bartels testified that the price to acquire the land was not considered for purposes of the appraisal.

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6) While Mr. Bartels estimated some demolition costs, in order to arrive at the as-is value of the land, he did not calculate the amount of value added to the land as a result of the boundary survey, environmental assessment, archeological study and demolitions and site preparation costs, which totaled $718,901.75 (“the disputed funds”).10 Thus, the amount of value added to the land by those costs was unknown at the time of the Amended Coverage Determination and at hearing. (Testimony of Bartels, Wooley; Ex. A1) 7) Per agreement of the Requesters, Tokola Properties will purchase the property for $10.00. (Testimony of Wooley; Ex. A15)

CONCLUSIONS OF LAW

1) The Commissioner has jurisdiction over this matter, pursuant to ORS 279C.817(4).

2) Requesters each have an interest in whether the Project is a public works,

on which payment of the prevailing rate of wage is or would be required under ORS 279C.840, and they requested a determination of that question by the Commissioner of the Bureau of Labor and Industries, in the manner required by, and in compliance with OAR 839-025-0005.

3) A Coverage Determination was issued by the Agency, followed by an

Amended Coverage Determination. Requesters properly sought, pursuant to ORS 279C.817(4) and OAR 839-025-0005(7), a hearing under ORS 183.415 to challenge the Agency’s Amended Coverage Determination.

4) “Value added to the land,” for purposes of ORS 279C.810, is the value

added to or created in the land by the development process, exclusive of the costs of those developments.

5) Costs expended to add value to the land are not exempt under ORS

279C.810(1)(a)(E). 6) Costs expended to add value to the land are not exempt under ORS

279C.810(1)(a)(I). 7) Based on the entirety of the record, the Project is a public works project

under ORS 279C.800(6)(a)(B). 8) Payment of the prevailing rate of wage to workers on the Project is

required under ORS 279C.840. 9) Pursuant to ORS 279C.817(1), the Commissioner of the Bureau of Labor

and Industries has the authority under the facts and circumstances of this case to make

10 $718,901.75 = $3,850.00 + $2,500.00 + $75,000.00 + $637,551.75.

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the determination about whether the Project would be a public works on which payment of the prevailing rate of wage would be required under ORS 279C.840.

OPINION

Pursuant to ORS 279C.817(1), the Agency "shall, upon request of a public agency or other interested persons, make a determination about whether a project or proposed project is or would be a public works on which payment of the prevailing rate of wage is or would be required under ORS 279C.840." Requesters sought a determination as to whether the Project would be subject to the prevailing wage rate under ORS 279C.840. In its July 17, 2018 Coverage Determination, the Agency determined that the Project was not subject to the prevailing wage rate. (Finding of Fact – Procedural #2) After receiving more information from Requesters, however, the Agency issued its Amended Coverage Determination on August 9, 2018. (Finding of Fact – Procedural #3, #4) In its Amended Coverage Determination, the Agency determined that the Project would be subjected to the prevailing wage rate, under ORS 279C.840. (Finding of Fact – Procedural #4) On August 22, 2018, Requesters requested a contested case hearing, pursuant to ORS 279C.817(4). (Finding of Fact – Procedural #5)

Contractors and subcontractors must pay the prevailing wage rate on all public works projects, unless a statutory exemption applies. ORS 279C.840(1). Pursuant to ORS 279C.800(6)(a)(B), a “public works” project is a “project that uses $750,000[.00] or more of funds of a public agency for constructing, reconstructing, painting or performing a major renovation on a road, highway, building, structure or improvement of any type.” The Project at issue is aimed at redeveloping a property in downtown The Dalles. (Finding of Fact – The Merits #1a, #1b) The Project is a mixed-use development, including housing, a fitness center, a community room, “tuck-under” parking and retail space. (Finding of Fact – The Merits #1d, #1g)

URA’s mission is “to eliminate blight and depreciating property values within

[URA]'s jurisdiction and in the process, [attract] aesthetically pleasing, job producing private investments that will stabilize or increase property values and [protect] the area's historic places and values.” (Finding of Fact – The Merits #1a) URA’s involvement in the Project is a key component in Requesters’ desire that the Project succeed. Requesters anticipate that URA will spend at least $1,422,600.75 on the Project in their joint effort to revitalize The Dalles downtown area. (Finding of Fact – The Merits #4) The issue in this case, is whether a statutory exemption applies to some of URA’s expenditures and anticipated expenditures, taking the Project out of the “public works” definition under ORS 279C.800(6)(a)(B), and eliminating the requirement to pay the prevailing wage rate.

Requesters argued that the $637,551.75 for site preparation and demolition, as

well as $3,850.00 for the boundary survey, $2,500.00 for the environmental assessment and $75,000.00 for the archeological study, are not “funds of a public agency.” Requesters argued that only portions of these costs should be considered funds of a

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public agency, bringing the amount of public funds used on the Project under the $750,000.00 benchmark and taking the Project out of the definition of “public works” under ORS 279C.800(6)(a)(B). Requesters’ argument was two-part.

Requesters first argued that the disputed funds fell under the exemption in ORS

279C.810(1)(a)(I). Pursuant to ORS 279C.810(1)(a)(I), “funds of a public agency” do not include:

“Value added to land as a consequence of a public agency’s site preparation, demolition of real property or remediation or removal of environmental contamination, except for value added in excess of the expenses the public agency incurred in the site preparation, demolition or remediation or removal when the land is sold for use in a project otherwise subject to ORS 279C.800 to 279C.870[.]”

Second, they argued that the disputed funds fell under the exemption in ORS 279C.810(1)(a)(E). Pursuant to ORS 279C.810(1)(a)(E), “funds of a public agency” do not include:

“The difference between:

“(i) The value of land that a public agency sells to a private entity as determined at the time of the sale after taking into account any plan, requirement, covenant, condition, restriction or other limitation, exclusive of zoning or land use regulations, that the public agency imposes on the development or use of the land; and

“(ii) The fair market value of the land if the land is not subject to the limitations described in sub-subparagraph (i) of this subparagraph[.]”

Both exemptions deal specifically with the “value added to the land.”

Requesters argued that the disputed funds constituted value added to the land because the disputed funds directly determined the amount of value added to the land. Requesters urged the forum to determine that the disputed funds, or the costs of adding value to the land, were equivalent to the resulting value added. In considering Requesters’ argument, it is helpful to consider the definition of “value added.” It is an inexact term, undefined in ORS chapter 279C, and requires the forum’s interpretation. When interpreting a statute:

“* * * the forum follows the analytical framework set out by the Oregon Supreme Court in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993) and modified by State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). Within that framework, the forum first examines the text and context of the statutes and also considers any pertinent legislative history proffered by the participants. The text of the statutory provision itself is the starting point for interpretation and the best evidence of the legislature’s intent. Also relevant is the

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context of the statutory provision, which includes other provisions of the same statute and other related statutes. If the legislature’s intent is clear from the text and context of the statutory provision, further inquiry is unnecessary.”

In the Matter of Dr. Andrew Engel, DMD, PC, 32 BOLI 94, 128 (2012). When considering the text and context of the statute, the forum gives words of common usage their plain natural and ordinary meaning. PGE v. Bureau of Labor and Industries, 317 Or at 610-611; State v. Gaines, 346 Or 160 (2009).

“Value added” is defined as “the value added to or created in a product or commodity by the manufacturing or marketing process exclusive of the cost of materials, supplies, packaging, or overhead.” (Emphasis added) Webster’s Third New Int’l Dictionary 2,531 (unabridged ed 2002) Notably, the definition specifically excludes

the costs expended to achieve the value. Such an exclusion implies that the value added to something and the costs necessary to achieve that value are not necessarily equal and, therefore, that the costs do not always determine the amount of value added.

This difference is also highlighted by the context of the term “value added,” as

well. The statutes specifically governing the PWR are found in ORS 279C.800 through ORS 279C.875. Within those statutes, the terms “cost” and “costs” appear 13 times. This context demonstrates that when the legislature intended to use the term “cost” or “costs,” it did so. Had the legislature intended for the costs of adding value to the land to be within the ORS 279C.810(1)(a)(I) exemption, it would have included specific language. The forum will not insert a term, where the legislature has omitted it. ORS 174.010.

The costs expended to add value to the land are separate and distinct from the

amount of value actually added to the land. In consideration of the definition of “value added,” it is reasonable to conclude that “value added to the land” for purposes of ORS 279C.810 is the value added to or created in the land by the development process, exclusive of the costs of those developments. Individuals or entities expending the costs to add value, quite understandably, may hope that the amount expended directly determines the value added to the land but that, of course, is not always the case. Sometimes a relatively low cost returns a big amount of value added; other times, the costs expended outweigh the value added, and result in a poor investment. ORS 279C.810(1)(a)(I) specifically exempts only the value added to the land. As applied to this case, the calculation of the amount of money excluded from the definition of “funds of a public agency,” under ORS 279C.810(1)(a)(I), would be as follows:

$ unknown11 Amount of value added to the land as a consequence

of URA’s costs or anticipated costs for site preparation, demolition of real property or remediation or removal of environmental contamination.

11 The appraisal on the Project did not calculate the amount of value added to the land, as a result of

URA’s costs or anticipated costs (aka the disputed funds). (Finding of Fact – The Merits #5)

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- $ unknown The costs URA expended, or anticipated it would expend, in the site preparation, demolition or remediation or removal when the land is sold for a public works project.

$ unknown Amount exempt from consideration of “funds of a public agency,” as defined in ORS 279C.800(6)(a)(B).

As with the exemption under ORS 279C.810(1)(a)(I), the value that was added to the land, as a result of the expenditure of the disputed funds, is unknown for purposes of ORS 279C.810(1)(a)(E). Pursuant to ORS 279C.810(1)(a)(E), the amounts necessary to determine the exemption from “funds of a public agency” are:

$ unknown12 The value of land that a public agency sells to a

private entity as determined at the time of the sale after taking into account any plan, requirement, covenant, condition, restriction or other limitation, exclusive of zoning or land use regulations, that the public agency imposes on the development or use of the land.

- $310,000.00 The fair market value of the land if the land, unencumbered.

$ unknown Amount exempt from consideration of “funds of a public agency,” as defined in ORS 279C.800(6)(a)(B).

Requesters also argued that, in a negative land value case, to determine that “value added to the land” does not include the costs that it took to add the value, there is no benefit to the exemption because many cities would be unable to participate in urban renewal projects. The forum agrees that considering the costs expended to add value to the land as “funds of a public agency,” in negative land value cases, may make it extremely difficult for certain cities, especially smaller cities, to participate in urban renewal projects. Unfortunately, the statute is clear as to what funds may be exempt from the definition of “funds of a public agency.” Under ORS 279C.810(1)(a), Exemptions (E) and (I) consider the “value added to the land.” The definition of that term does not include the costs expended to add that value.

AGENCY’S EXCEPTIONS The Agency submitted 12 exceptions to the Proposed Order. The first five

exceptions addressed scrivener’s errors made by the Agency in its filed Stipulations and scrivener’s errors made by the forum when it incorporated the Stipulations into the Proposed Order. The Agency’s Exceptions #1-5 are GRANTED.

12 Although the appraisal did calculate the residual value of the land, the lack of evidence as to the

amount of value added to the land as a result of expending the disputed funds, made this amount indeterminate, as well. (Finding of Fact – The Merits #5)

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In its sixth and ninth exception, the Agency noted that the forum had referenced

expenditures made or anticipated to be made by URA but had failed to specifically identify the listed expenditures as only those considered “funds of a public agency;” the referenced expenditures were not all of the expenditures made or anticipated to be made by URA on the Project. The Agency’s exceptions on this issue are well taken and consistent with the forum’s intent to discuss the expenditures that were considered to be funds of a public agency by the forum. The Agency’s Exceptions #6 and #9 are GRANTED.

In its seventh exception, the Agency requested that the forum consolidate fn. 10

into the body of Proposed Findings of Fact – The Merits #6. For purposes of clarity, the Agency’s Exception #7 is GRANTED.

In its eighth exception, the Agency excepted to the forum’s use of the term

“disputed funds” to refer to the costs of the boundary survey, environmental assessment, archeological study and demolitions and site preparation costs referenced in Proposed Finding of Fact – The Merits #6. The Agency argued that Requesters disputed only part of the monetary amounts associated with the costs of the boundary survey, environmental assessment and archeological study and, therefore, the forum should not term these amounts as “disputed.” The Agency is correct that Requesters did not dispute part of the whole amounts, however, the whole amount of the boundary survey, environmental assessment and archeological study were disputed, as funds of a public agency, by Requesters. Since these costs were not actually “split,” the forum refers to the whole costs as “disputed funds.” The fact that the case participants agreed that $672,700.75 of the total amount were funds of a public agency was not particularly helpful, and their use of the split cost amounts as a basis for their joint Stipulations created confusion, muddling the record. The whole amounts of the costs were in dispute and the whole amounts were funds of a public agency, pursuant to ORS 279C.800(6)(a)(B). The Agency’s Exception #8 is OVERRULED.

In Exception #10, the Agency noted that the forum inaccurately represented

Requesters’ argument about the amount of money that should be considered funds of a public agency. The Agency’s exception is well taken. While the forum accurately represented that Requesters disputed that $637,551.75 for site preparation and demolition, as well as $3,850.00 for the boundary survey, $2,500.00 for the environmental assessment and $75,000.00 for the archeological study were “funds of a public agency,” Requesters did not argue that the entire amounts of some of those costs were outside that definition. The Agency’s Exception #10 is GRANTED.

In Exception #11, the Agency requested that an additional finding of fact be

added, stating the following: “No determination was made regarding what specific activities constitute site preparation, demolition or remediation or removal as those terms are used in ORS 279C.810(1)(a)(I).”

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(Agency’s Exceptions, p. 13) The Agency stated “[t]he requesters asserted that certain costs, including but not limited to, the costs of PUD relocation in the amount of $118,022.00 and Survey Work in the amount of $1,848.25 constitute site preparation, demolition or remediation or removal and should not be considered funds of a public agency pursuant to ORS 279C.810(1)(a)(I).” Id. Pursuant to ORS 183.470(2), a final order’s “findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the agency’s order.” Since a determination as to what specific activities constituted “site preparation, demolition or remediation or removal” was not before the forum, the Agency’s suggested Finding of Fact is not necessary to support the conclusions in the Final Order. The Agency’s Exception #11 is OVERRULED.

In Exception #12, the Agency asked the forum to remove the monetary value it assigned to the costs expended or anticipated to be expended on site preparation, demolition or remediation or removal, for purposes of ORS 279C.810(1)(a)(I). The forum assigned this value at $718,901.75, however, this amount erroneously included costs that may or may not have been specifically for site preparation, demolition or remediation or removal, for purposes of ORS 279C.810(1)(a)(I). As stated in its ruling on Agency’s Exception #11, the issue of what specific activities constituted “site preparation, demolition or remediation or removal” was not before the forum. The Agency’s Exception #12 is GRANTED.

REQUESTERS’ EXCEPTIONS

Pursuant to OAR 839-050-0380(1), “[e]xceptions must be specific and must be in writing.” (Emphasis added) Requesters did not make specific exceptions. Instead, Requesters listed Proposed Conclusions of Law Nos. 4-8 and made a general argument that the Proposed Order’s conclusions were inconsistent with an unrelated Agency Coverage Determination, issued on March 7, 2012. The March 7, 2012 Coverage Determination was not provided to the Agency for consideration, as part of Requesters’ Request for Determination, and was not evidence in this case. Requesters offered the document as impeachment evidence, during their cross-examination of Ms. Wooley. For the reasons set forth in Finding of Fact – Procedural #19, the evidence was inadmissible. Requesters’ general Exception to the Proposed Final Order is OVERRULED.

ORDER

NOW, THEREFORE, as authorized by ORS 279C.817, the Agency's determination, issued pursuant to ORS 279C.817, is hereby AFFIRMED.

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_____________________________

In the Matter of

R. B. DEVELOPMENT CORPORATION INC, RESPONDENT, CASE NO. 07-19


Issued April 16, 2019

_____________________________

SYNOPSIS

Respondent failed to pay all prevailing wage rate wages and prevailing wage rate overtime wages to seven workers on two public works projects. On behalf of the workers, the Commissioner ordered Respondent to pay liquidated damages in the total amount of $32,473.88, plus interest.

_____________________________ The above-entitled case was assigned to Kari Furnanz, designated as Administrative Law Judge (“ALJ”) by Val Hoyle, Commissioner of the Bureau of Labor and Industries for the State of Oregon.

The Bureau of Labor and Industries (“BOLI” or “the Agency”) was represented by Administrative Prosecutor Adam Jeffries, an employee of the Agency. Respondent was represented by its authorized representative, Norman James Starr.

After the Agency issued an Order of Determination (“OOD”) and an Amended OOD, the Agency moved for and was granted summary judgment.

Having fully considered the entire record in this matter, I, Val Hoyle,

Commissioner of the Bureau of Labor and Industries, hereby make the following Findings of Fact (Procedural and on the Merits), Conclusions of Law, Opinion, and Order.1


1) On or before the following dates, the individuals listed below filed wage

claims and assignments of wages with the Agency: ///

///

1 The Ultimate Findings of Fact required by OAR 839-050-0370(1)(b)(B) are subsumed within the Proposed Findings of Fact – The Merits.

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Name Filed on or before2

Francisco Alejandre August 4, 2017 Filemon Flores August 11, 2017 Rosalio Jimenez Oliveros August 4, 2017 Jesus Rodriguez-Abriga June 12, 2017 Daniel Rodriguez-Solano August 11, 2017 Omar Rodriguez-Palos June 12, 2017 Roger Valladares-Ramos June 26, 2017 (Exs. X6a, X6b, A23) 2) On June 8, 2018, the Agency issued an Order of Determination (“OOD”) which alleged that Respondent owed a total of $31,627.28 in liquidated damages to the wage claimants, plus interest, for failing to pay the applicable prevailing wage rates, pursuant to ORS 279C.855(1) and OAR 839-025-0080(2). The OOD further stated that Respondent owed a total of $995.36 in liquidated damages to the wage claimants, plus interest, for failing to pay the applicable prevailing wage overtime rates, pursuant to ORS 279C.540(1), ORS 279C.855(1) and OAR 839-025-0080(3). The OOD also asserted that Respondent was liable for a civil penalty of $3,651.72 for issuing a dishonored check, pursuant to OAR 839-001-0300(1)-(7) and ORS 652.195(1)-(5). (Ex. X2d)

3) On June 8, 2018, the OOD was served upon Respondent by certified mail.3 (Exs. X2e, X2f)

4) Respondent filed an answer and request for hearing on April 13, 2018. Respondent also submitted a signed form which stated that Norman J. Starr was its Authorized Representative. (Exs. X2b, X2c) 5) On August 23, 2018, the forum issued a Notice of Hearing to Respondent, the Agency, and Claimants setting the time and place of hearing for October 23, 2018,

2 The assignment of wages for Flores and Rodriguez-Solano did not include date stamps indicating when the assignments were received by the Wage and Hour Division. Accordingly, the forum infers that the assignments was received prior to August 11, 2017, the date on which the Investigator sent a letter to Respondent mentioning unpaid wages of Flores and Rodriguez-Solano. 3 The forum file includes copies of the USPS return receipt postcards (PS Form 3811) for Respondent, as is required to demonstrate service by certified mail. See In the Matter of Soapy's, Inc., 14 BOLI 86, 87-88 (1995) (referencing a certified mail return receipt labeled as “PS Form 3811”). The postcards for the mailings sent to R.B. Development Corporation, Inc. and Norman James Starr were returned unsigned. However, they were sent to the same address that is on Respondent’s Answer and Request for Hearing. As well, documents in the record from Respondent identify that same address as the address for Respondent. Accordingly, the forum concludes that the OOD was served on the “correct address” of Respondent. “[S]ervice is not dependent on whether a [r]espondent choose[s] to pick up his certified mail from his correct address.” In the Matter of Lioness Holdings, LLC, 36 BOLI 227, 232 (2018) (citing Stroh v. State Acc. Ins. Fund, 261 Or. 117, 119 (1972) and El Rio Nilo, LLC v. Oregon Liquor Control Commission, 240 Or. App. 362 (2011)). The fact that the postcards were returned unsigned does not negate the fact that Respondent was served by certified mail.

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at 9:00 a.m. at BOLI’s Portland office. Together with the Notice of Hearing, the forum sent a copy of the Order of Determination, a multi-language warning notice, a document entitled “Summary of Contested Case Rights and Procedures” containing the information required by ORS 183.413, a document entitled “Servicemembers Civil Relief Act (SCRA) Notification, and a copy of the forum’s contested case hearings rules, OAR 839-050-0000 to 839-050-0445. (Exs. X2, X2a–X2j)

6) On September 26, 2018, the ALJ issued an interim order which stated, in part:

“HOW TO FILE A DOCUMENT

“You may file a motion or other document by mailing it or hand delivering it

to BOLI’s Contested Case Coordinator at the following address:

“Oregon Bureau of Labor and Industries ATTN: Contested Case Coordinator

1045 State Office Building 800 NE Oregon Street

Portland, Oregon 97232-2180

“Motions or other documents are considered ‘filed’ on the date they are postmarked with a date on a correctly addressed envelope or on the date of their receipt by BOLI’s Contested Case Coordinator, whichever occurs first. OAR 839-050-0040.”

(Ex. X4)

7) On October 2, 2018, the Agency issued an Amended OOD “to correct and add various citations; to clarify that the amount of liquidated damages sought includes both prevailing wages and overtime untimely paid; to remove the claim for penalties for issuance of a dishonored check for wages and to reduce the total amount of liquidated damages sought.” (Ex. X5)

8) On October 2, 2018, the Agency filed a motion for summary judgment,

contending it was entitled to judgment as a matter of law. On October 5, 2018, the ALJ issued an interim order notifying Respondent of the response deadline of October 9, 2018, and stating:

“If Respondent fails to file a written response, the forum will grant the Agency’s motion if the pleadings and all documents filed in support of the motion show that there is no genuine issue as to any material fact and that the Agency is entitled to judgment as a matter of law.” At the request of the ALJ, the Agency filed a supplemental declaration and

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exhibits4 on October 9, 2018. On October 11, 2018, the ALJ issued an interim order notifying Respondent that the deadline to file a response to the Agency’s supplemental filing was October 16, 2018. Respondent did not file a response to the Agency’s motion or to its supplemental declaration and exhibits. (Exs. X6, X7, X8, X12)

9) The forum held a telephone prehearing conference on October 16, 2018.

Administrative Prosecutor Adam Jeffries appeared on behalf of the Agency. Norman Starr, Respondent’s authorized representative, participated on behalf of Respondent. The parties discussed the current case deadlines and hearing date. Mr. Jeffries notified the forum of the need for a Spanish interpreter and stated that he would provide additional information by email to the forum. Mr. Starr asked if the forum can require witnesses to appear to testify at hearing; he was instructed to file a motion requesting that the forum issue subpoenas on his behalf. If the motion was granted, the forum would prepare subpoenas and provide them to Respondent, who would then be responsible for serving the subpoenas and for paying any applicable witness fees. OAR 839-050-0200(10).

The following case deadlines and dates were revised as follows:

Deadline for Respondent to file a response to the Agency’s Supplement to the Motion for Summary Judgment

October 17, 2018 at 4:00 p.m.

New Hearing Date

December 11, 2018

(Ex. X13) On November 27, 2018, the ALJ sent an email to the parties which stated as follows:

“Mr. Jeffries and Mr. Starr: “I am in the process of preparing the interim order ruling on the Agency’s motion for summary judgment. However, due to obligations in other cases and the amount of detail and time needed to calculate potential unpaid wages, the interim order ruling on the motion would not likely be ready until very close to the start of the scheduled hearing date of December 11, 2018. In order to avoid the potential of the parties unnecessarily preparing for issues at hearing that may be decided by motion, I am proposing that the hearing be postponed until after a ruling is issued on the summary judgment motion. If any issues remain undecided, I would then contact the parties to arrange for a new hearing date.

4 Both the Agency’s motion and the supplement included exhibits numbered 1-8. To avoid confusion, Exhibits 1-8 that were submitted with the supplement will be identified as Exhibits 1A-8A in this interim order.

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If any of the parties would like to discuss this proposal further, please respond by email and I will arrange for a prehearing telephone conference. If I receive no requests for a conference by 4:00 p.m. tomorrow, Wednesday, November 28, 2018, I will issue an interim order postponing the hearing date indefinitely.”

On November 28, 2018, the forum issued an interim order which stated:

“None of the parties responded to the email or otherwise requested a prehearing conference. Accordingly, the hearing in this matter is postponed and the hearing date of December 11, 2018, is canceled. If there are any issues that remain after the ruling on the Agency’s motion for summary judgment is issued, the ALJ will contact the parties to set a new hearing date.”

(Ex. X16)

10) On December 21, 2018, the ALJ issued an interim order granting the Agency’s motion for summary judgment, in part. The pertinent portion of the ALJ’s interim order is reprinted below:

“Summary Judgment Standard

“A motion for summary judgment may be granted where no genuine issue as to any material fact exists and a participant is entitled to a judgment as a matter of law, as to all or any part of the proceedings. OAR 839-050-0150(4)(B). The standard for determining if a genuine issue of material fact exists and the evidentiary burden on the participants is as follows:

‘ * * * No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment. The adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at [hearing].’

ORCP 47C.

“The record considered by the forum in deciding this motion consists of: (1) the Agency's OOD, the Amended OOD, the Agency’s argument made in support of its motion, and the exhibits submitted with the Agency's motion and the supplemental declarations and exhibits; and (2) Respondent’s Answer.

“ANALYSIS

“The Agency asserts that Respondent owes the seven wage claimants a

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total of $31,627.28 pursuant to ORS 279C.840(1), ORS 279C.855(1) and OAR 839-025-0080(1)(3). A ‘subcontractor . . . that violates the provisions of ORS 279C.840 is liable to the workers affected . . . in an additional amount equal to the unpaid wages as liquidated damages.’ ORS 279C.855(1). Accordingly, to determinate if liquidated damages are owed, the forum must first determine whether there are any unpaid wages and, if so, the amount of those wages.

“ORS 279C.840(1) requires all contractors and subcontractors ‘upon all public works’ to pay ‘not less than the prevailing rate of wage for an hour’s work in the same trade or occupation in the locality where the labor is performed.’ The wages must be paid on the subcontractors ‘regular pay day.’ Id.

“The elements of the Agency’s prima facie case are: 1) Respondent employed claimants; 2) The pay rate(s) that claimants were entitled to be paid; 3) The amount and extent of work claimants performed for respondent; 4) Claimants performed work for which they were not properly compensated; (5) Claimants performed work on a public works project for which they were not fully paid.5 In the Matter of Brown’s Architectural Sheetmetal, Inc. and Brun Metals Company, LLC, 35 BOLI 68, 126 (2016).

“Element 1: Respondent Employed Claimants.

“In its answer, Respondent6 does not dispute that it employed the seven wage claimants.

“Elements 2 - 5: Pay Rates, Hours Worked and Unpaid Amounts for Public Works Project.

“Upon review of the Agency’s calculations and methodology in Ex. 1A, together with the supplemental declarations and exhibits, the forum concludes that the following tables represent the pay rates, hours worked and amounts paid to Complainants:

“MAPLE PROJECT

“Respondent had a subcontract with Baldwin General Contracting Inc. to furnish labor for the construction of a public school classroom addition in Springfield, Oregon, in Lane County (the ‘Maple Project’). Exs. 5A, 7. In the Amended OOD, the Agency asserts that the Maple Project was a ‘public works’ as defined in ORS 279C.800(6) and OAR 839-025-0004(20). Respondent did

5 The Brown’s Final Order included an additional element (willfulness) that would be pertinent if penalty wages were requested, but that is not at issue in this case. 6 Respondent filed an answer to the original OOD, but did not file an answer to the Amended OOD. Pursuant to OAR 839-050-0140(2)(b), Respondent’s answer to the original OOD will be deemed its answer to the Amended OOD.

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not deny this allegation in its Answer. Accordingly, the forum deems this allegation to be admitted under OAR 839-050-0130(3). “Claimant Francisco Alejandre “The Agency asserts that Respondent did not submit timely payment to Claimant Alejandre for prevailing wage rate wages and overtime worked on during Maple project during the weeks ending: 10/24/15, 10/31/15, 11/14/15, 11/28/15, 12/12/15, 12/19/15, 12/26/15, 1/2/16, 1/9/16, 1/16/16, 1/30/16, 3/26/16, 4/16/16 and 4/23/16. The following chart includes the forum’s calculations of unpaid7 wages during those weeks for the Maple project:

Week ending

Occupation Pay Rate

Hours Worked Wages Earned

Amount Paid

Unpaid Wages

10/24/15 Drywall Installer $48.778 15 (Maple) $731.55 $0.00 $731.55



11/21/15 Drywall Installer $48.77 $17.129

36 (Maple) 1 (OT Maple)

$1,755.72 + $17.12

$1,772.84

$0.00

$1,772.84

11/28/15 Drywall Installer $48.77 $30.00 $17.12

28 (Maple) 21 (Other)

16.5 (OT Maple)

$1,365.56 $630.00

+ $282.48 $2,278.04

$2,228.74

$49.30


12/19/15 Drywall taper $46.5710 8 (Maple) $372.56 $0.00 $372.56



8 (Maple) 30 (regular)

$390.16 + $720.00 $1,110.16

$1,099.36

$10.80

1/9/16 Drywall Installer $48.77 $30.00 $49.60 $17.12

16 (Maple) 8 (regular)

16 (PWR other) 8 (OT Maple)

$780.32 $240.00 $793.60

+ $136.96 $1,950.88

$1,737.60

$213.28


9 (Maple) 24 (PWR other)

1 (OT Maple)

$438.93 $1,190.40 + $17.12

$1,646.45

$0.00

$1,646.45

1/23/16 Drywall Installer $48.77 7 (Maple) $341.39

7 The references to “unpaid wages” include wages that were ultimately paid to workers by the prime contractor. 8 The prevailing wage rate for a drywall installer in Lane County at the time the Maple project was advertised for bid was $34.23 (basic hourly rate) plus $14.54 (fringe benefit rate), for a total of $48.77 per hour. (Ex. 7A) 9 This amount represents the additional amount owing for overtime hours worked. The prevailing wage rate for overtime work is one and one-half times the hourly rate, excluding the fringe benefit amount. ORS 279C.540(1); OAR 839-025-0050(2). Accordingly, the additional amount due per hour is $17.12, representing one-half of the basic hourly rate of $34.23. 10 The prevailing wage rate for a drywall taper in Lane County at the time the Maple project was advertised for bid was $32.93 (basic hourly rate) plus $13.64 (fringe benefit rate), for a total of $46.57 per hour. (Ex. 7A)

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$30.00 25 (regular) +$750.00 $1,091.39

$0.00

$1,091.39



$17.1211

16 (Maple) 26 (PWR other)

2 (OT PWR other)

$780.32 $1,232.92 + $34.23

$2,047.47

$2,004.24

$43.23


$47.42

8 (Maple) 14 (OPS)

8 (PWR other)

$390.16 $694.40

+ $379.36 $1,463.92

$1,422.60

$41.32

(div. by 2): $20.6613


35 (OPS) 16 (Maple)

7 (OT OPS) 5 (OT weighted14)

$1,736.00 $780.32 $122.71 + 86.81

$2,725.85

$2,394.71

$331.13 (div. by 2):

$165.57

Total unpaid wages

$9,141.37

“Claimant Filemon Flores

“The Agency asserts that Respondent did not submit timely payment to Claimant Flores for prevailing wage rate wages and overtime worked on during Maple project during the week ending 4/23/16. The following chart includes the forum’s calculations of unpaid wages during that week for the Maple project:

Week

ending Occupation Pay

Rate Hours Worked Wages

Earned Amount

Paid Unpaid Wages

4/23/16 Drywall Taper $46.5715 7 (Maple) $325.99 $0.00 $325.99

“Claimant Rosalio Jimenez Oliveros

“The Agency asserts that Respondent did not submit timely payment to Claimant Oliveros for prevailing wage rate wages and overtime worked on during

11 In the Agency’s overtime calculation on page 17 of Ex. 1A, it appeared to use $47.42 as the base rate, but that figure included fringe instead of just the base rate. Accordingly, the additional overtime amount is multiplied by $17.12 (one-half of $34.23). 12 The prevailing wage rate for a drywall installer in Linn County at the time the OPS project was advertised for bid was $35.05 (basic hourly rate) plus $14.55 (fringe benefit rate), for a total of $49.60 per hour. (Ex. 8A) 13 In the Agency’s calculations, when a workweek with an underpayment involved work on both the Maple and OSP projects, the Agency divided the amount due evenly between the two projects. (See Ex. 1A, pp. 13, 17) The forum adopts the Agency’s approach. 14 Since the worker performed work with different base wage rates in a single day on 4/19/16 and also performed overtime work on that day, the worker’s overtime rate is calculated by using a weighted average drawn from the different base wage rates. See Green Thumb Maintenance & Landscape, Inc., 25 BOLI 178, 214 (2017); OAR 839-025-0050(2)(b). For example, on 4/19/16, Alejandre’s overtime rate of $17.38 was calculated as follows: 7 hours x $35.05 = $245.35; 6 hours x $34.23 = $206.58; $245.35 + $206.58 = $451.93; $451.93 ÷ 13 hours = $34.76; $34.76 x .5 = $17.38. 15 The prevailing wage rate for a drywall taper in Lane County at the time the Maple project was advertised for bid was $32.93 (basic hourly rate) plus $13.64 (fringe benefit rate), for a total of $46.57 per hour. (Ex. 7A)

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Maple project during the weeks ending: 3/26/16, 4/16/16 and 4/23/16. The following chart includes the forum’s calculations of unpaid wages during those weeks for the Maple project:

Week

ending Occupation Pay Rate Hours Worked Wages

Earned Amount

Paid Unpaid Wages


29.5 (Other) 7 (Maple)

2 (OT Supp)

$1,398.89 $341.39

+ $34.23 $1,774.51

$1,332.83

$441.68

4/23/16 Drywall taper $47.4216 $46.57 $20.00 $16.83 $16.47 $16.67

15 (OPS) 24 (Maple)

3 (Other) 5 (OT OPS)

1 (OT Maple) 2 (OT weighted)17

$711.30 $1,117.68

$60.00 $84.15 $16.47

+ $33.33 $2,022.93

$1,861.96

$160.97

(div. by 2): $80.49

4/30/16 Drywall taper $47.42 $6.57

$47.42 $20.00

15.5 (OPS) 8 (Maple)

6 (Other PWR) 9.5 (Other)

$735.01 $372.56 $284.52

+ $190.00 $1,582.09

$1,541.47

$40.62 (div. by 2):

$20.31

Total unpaid wages

$542.48

“Claimant Roger Orlando Valladares-Ramos

“The Agency asserts that Respondent did not submit timely payment to Claimant Valladares-Ramos for prevailing wage rate wages and overtime worked on during Maple project during the weeks ending: 11/21/15, 1/2/16, 1/9/16, 2/6/16, 3/5/16, 3/26/16, 4/16/16 and 4/23/16. The following chart includes the forum’s calculations of unpaid wages during those weeks for the Maple project:

Week



Earned Amount

Paid Unpaid Wages

11/21/15 Drywall Taper $46.57 39.5 (Maple) $1,839.52 $1,873.09 $0.00

1/2/16 Drywall Taper $47.42 $47.42

11 (Maple) 14 (PWR Other)

$521.62 + $663.88 $1,185.50

$1,185.5018

$0.00

16 The prevailing wage rate for a drywall taper in Linn County at the time the OPS project was advertised for bid was $33.66 (basic hourly rate) plus $13.76 (fringe benefit rate), for a total of $47.42 per hour. (Ex. 8A) 17 See footnote 10 for explanation of weighted average calculation method for overtime hours worked 4/19/16. 18 See Ex. 10, p. 8.

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1/9/16 Drywall Taper $46.57 $47.42 $16.47

14 (Maple) 16 (PWR Other)

6 (OT Maple)

$651.98 $758.72

+ $98.22 $1,508.92

$1,422.60

$86.32

2/6/16 Drywall Taper $46.57 $16.47

18 (Maple) 2 (OT Maple)

$838.26 + $32.93 $871.19

Unable to determine19

Unable to determine

3/5/16 Drywall Taper $46.57 28 (Maple) $1,303.96 $0.00 $1,303.96


4/16/16 Drywall Taper $47.42 $46.57 $20.00 $16.67

16 (OPS) 11 (Maple) 14 (Other)

2 (OT weighted)

$758.72 $512.27 $180.00

+ $33.33 $1,517.98

$1,252.1120

$265.87 (div. by 2):

$132.94

4/23/16 Drywall Taper $47.42 $46.57 $16.83

7 (OPS) 7 (Maple)

2 (OT OPS)

$331.94 $331,94

+ $33.66 $697.54

$426.7821

$270.76 (div. by 2):

$135.38

Total unpaid wages

$1,999.99

“OPS PROJECT

“Respondent had a subcontract with Baldwin General Contracting Inc. to furnish labor for the construction of the OPS Crew Quarters in Albany, Oregon, in Linn County. Exs. 6A, 8. In the Amended OOD, the Agency asserts that the OPS Project was a ‘public works’ as defined in ORS 279C.800(6) and OAR 839-025-0004(20). Respondent did not deny this allegation in its Answer. Accordingly, the forum deems this allegation to be admitted under OAR 839-050-0130(3).

“Claimant Francisco Alejandre

“The Agency asserts that Respondent did not submit timely payment to Claimant Alejandre for prevailing wage rate wages and overtime worked on during OPS project during the weeks ending: 4/2/16, 4/9/16, 4/23/16, 4/30/16, 5/6/16, 5/14/16 and 5/28/16. The following chart includes the forum’s calculations of unpaid wages during those weeks for the OPS project:

19 The forum is unable to reach a conclusion as to the amount paid for this week as there are two checks that may be attributable to this pay period. See Ex. 10, p. 24 (Check # 1409 dated 2/16/16 in the amount of $1640.00) compared to Ex. 10, p. 22 (Check # 1400 in the amount of $1843.00 that may be for this pay period). 20 See Ex. 10, p. 37. 21 See Ex. 10, p. 37.

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Week ending

Occupation Pay Rate

Hours Worked Wages Earned

Amount Paid

Unpaid Wages


8 (OPS) 20 (PWR Other)

14 (Other) 2 (OT PWR Other)

$396.80 $948.40 $420.00

+ $34.24 $1,799.44

$1,747.76

$51.68


33 (OPS) 3 (PWR Other)

4 (Other)

$1,636.80 $142.26

+ $120.00 $1,899.06

$1,400.34

$498.72


$47.42

8 (Maple) 14 (OPS)

8 (PWR other)

$390.16 $694.40

+ $379.36 $1,463.92

$1,422.60

$41.32

(div. by 2): $20.66


35 (OPS) 16 (Maple)

7 (OT OPS) 5 (OT weighted)

$1,736.00 $780.32 $122.71 + 86.81

$2,725.85

$2,394.71

$331.13 (div. by 2):

$165.57


32 (OPS) 8 (Other)

$1,587.20 + $240.00 $1,827.50

$1,757.44

$69.76

5/7/16 Drywall Taper $47.42 $47.42 $30.00

12 (OPS) 20 (Other PWR)

8 (Other)

$569.04 $948.40

+ 240.00 $1,757.44

$1,757.44

$0.00

5/14/16 Drywall Taper $47.42 $47.42


$1,517.44 + $379.36 $1,896.80

$1,896.80

$0.00

5/28/16 Drywall Installer $49.60 24 (OPS) $1,190.00 $0.00 $1,190.00

Total unpaid wages

$1,996.39

Claimant Filemon Flores

“The Agency asserts that Respondent did not submit timely payment to Claimant Flores for prevailing wage rate wages and overtime worked on during OPS project during the week ending 4/23/16. The following chart includes the forum’s calculations of unpaid wages during those weeks for the OPS project:

Week



Earned Amount

Paid Unpaid Wages

4/23/16 Drywall Taper $47.42 $16.83

20.5 (OPS) 4.5 (OPS OT)

$972.11 + $75.74

$1,047.85

$0.00

$1,047.85

22 The prevailing wage rate for a drywall installer in Linn County at the time the OPS project was advertised for bid was $35.05 (basic hourly rate) plus $14.55 (fringe benefit rate), for a total of $49.60 per hour. (Ex. 8A)

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“Claimant Rosalio Jimenez Oliveros

“The Agency asserts that Respondent did not submit timely payment to Claimant Oliveros for prevailing wage rate wages and overtime worked on during OPS project during the weeks ending: 4/16/16, 4/23/16 and 4/30/16. The following chart includes the forum’s calculations of unpaid wages during those weeks for the OPS project:

Week ending

Occupation Pay Rate Hours Worked Wages Earned

Amount Paid

Unpaid Wages

4/16/16 Drywall Taper $47.42 $20.00 $10.00

8 (OPS) 40 (Other)

8 (OT Other)

$379.36 $800.00

+ $80.00 $1,259.36

$1,252.1123

$7.25

4/23/16 Drywall Taper $47.4224 $46.57 $20.00 $16.83 $16.47 $16.67

15 (OPS) 24 (Maple)

3 (Other) 5 (OT OPS)

1 (OT Maple) 2 (OT weighted)25

$711.30 $1,117.68

$60.00 $84.15 $16.47

+ $33.33 $2,022.93

$1,861.96

$160.97

(div. by 2): $80.49

4/30/16 Drywall Taper $47.42 $6.57

$47.42 $20.00

15.5 (OPS) 8 (Maple)

6 (Other PWR) 9.5 (Other)

$735.01 $372.56 $284.52

+ $190.00 $1,582.09

$1,541.47

$40.62 (div. by 2):

$20.31

Total unpaid wages

$108.05

“Claimant Jesus Rodriguez-Abriga

“The Agency asserts that Respondent did not submit timely payment to Claimant Rodriguez-Abriga for prevailing wage rate wages and overtime worked on during OPS project during the weeks ending: 4/9/16, 4/16/16, 5/21/16 and 5/28/16. The following chart includes the forum’s calculations of unpaid wages during those weeks for the OPS project:

Week



Earned Amount Paid Unpaid

Wages

23 See Ex. 10, p. 59. 24 The prevailing wage rate for a drywall taper in Linn County at the time the OPS project was advertised for bid was $33.66 (basic hourly rate) plus $13.76 (fringe benefit rate), for a total of $47.42 per hour. (Ex. 8A) 25 See footnote 10 for explanation of weighted average calculation method for overtime hours worked 4/19/16.

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4/9/16 Drywall Installer $49.60 16 (OPS) $793.60 Undetermined Undetermined

4/16/16 Drywall Installer $49.60 8 (OPS) $396.80 $0.00 $396.80



Total unpaid wages

$1,388.80

“Claimant Daniel Rodriguez-Solano

“The Agency asserts that Respondent did not submit timely payment to Claimant Rodriguez-Solano for prevailing wage rate wages and overtime worked on during OPS project during the weeks ending: 4/2/16, 4/9/16, 5/7/16, 5/14/16, 5/21/16 and 5/28/16. The following chart includes the forum’s calculations of unpaid wages during those weeks for the OPS project:

Week


Earned Amount

Paid Unpaid Wages

4/2/16 Drywall installer $49.60 8 (OPS) $396.80 $0.00 $396.80


5/7/16 Drywall installer $49.60 28 (OPS) $1,388.80 $0.00 $1,388.80

5/14/16 Drywall installer $49.60 24 (OPS) $1,190.40 $0.00 $1,190.40



Total unpaid wages

$4,960.00

“Claimant Omar Rodriguez-Palos

“The Agency asserts that Respondent did not submit timely payment to Claimant Rodriguez-Palos for prevailing wage rate wages and overtime worked on during OPS project during the weeks ending: 3/19/16, 4/2/16, 4/9/16, 4/16/16, 4/30/16, 5/14/16, 5/21/16 and 5/28/16. The following chart includes the forum’s calculations of unpaid wages during those weeks for the OPS project:

Week


Earned Amount Paid Unpaid

Wages

3/19/16 Drywall Installer $49.60 $20.00 $47.42 $10.00 $16.83

1 (OPS) 16 (Other)

20 (Other PWR) 1 (OT Other)

4 (OT PWR Other)

$49.60 $320.00 $948.40 $10.00

+ $67.32 $1,395.32

$1, 203.4026

$191.92



8 (Other)

$793.60 $758.72

+ $160.00 $1,712.32

Undetermined27

Undetermined

26 See Ex. 10, p. 43. 27 The forum could not determine which check applied to this work period and did not locate a pay stub in the Agency’s submission.

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4 (Other)

$1,587.20 $142.26

+ $80.00 $1,809.46

$1,648.4028

$161.06



8 (Other)

$694.40 $758.72

+ $160.00 $1,613.12

Undetermined29

Undetermined


8 (OPS) 17.5 (Other PWR)

14.5 (Other)

$396.80 $829.85

+ 290.00 $1,516.65

$1,499.21

$17.44


32 (OPS) 8 (Other)

$1,587.20 + $160.00 $1,747.20

$1,677.44

$69.76


34 (OPS) 6 (Other)

$1,686.40 + $120.00 $1,806.40

$0.00

$1,806.40


4 (OPS) 36 (Other)

$198.40 + $720.00

$918.40

$0.00

$918.40

Total unpaid wages

$3,164.98

“Claimant Roger Orlando Valladares-Ramos

“The Agency asserts that Respondent did not submit timely payment to Claimant Valladares-Ramos for prevailing wage rate wages and overtime worked on during the OPS project during the weeks ending: 4/9/16, 4/16/16, 4/23/16, 4/30/16, 5/7/16 and 5/14/16. The following chart includes the forum’s calculations of unpaid wages during those weeks for the OPS project:

Week



Earned Amount

Paid Unpaid Wages

4/9/16 Drywall Taper $47.42 $47.42 $20.00 $17.83


6 (Other) 6 (Weighted OT)

$1,517.44 $94.84

$120.00 + $106.98 $1,839.26

$0.00

$1,839.26

4/16/16 Drywall Taper $47.42 $46.57 $20.00 $16.67

16 (OPS) 11 (Maple) 14 (Other)

2 (OT weighted)

$758.72 $512.27 $180.00

+ $33.33 $1,517.98

$1,252.11

$265.87 (div. by 2):

$132.94

28 Ex. 10, p. 67. 29 There is a pay stub for the week ending “4/14/2016” (not 4/16/16) but it did not match the number of hours worked that week. See Ex. 10, p. 70. Accordingly, there is a question of fact as to the amount paid that week.

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4/23/16 Drywall Taper $47.42 $46.57 $16.83

7 (OPS) 7 (Maple)

2 (OT OPS)

$331.94 $331,94

+ $33.66 $697.54

$426.78

$270.76 (div. by 2):

$135.38

4/30/16 Drywall Taper $47.42 40 (OPS) $1,896.80 $0.00 $1,896.80 5/7/16 Drywall Taper $47.42 40 (OPS) $1,896.80 $0.00 $1,896.80

5/14/16 Drywall Taper $47.42 40 (OPS) $1,896.80 $0.00 $1,896.80 Total unpaid

wages

$7,797.98

“LIQUIDATED DAMAGES

“ORS 279C.855 provides: ‘(1) A * * * subcontractor * * * that violates the provisions of ORS 279C.840 is liable to the workers affected in the amount of the workers’ unpaid minimum wages, including all fringe benefits, and in an additional amount equal to the unpaid wages as liquidated damages.’ Respondent violated ORS 279.840(1) on the Maple and OPS projects by not paying Claimants the prevailing wage rate for every hour that Claimants performed work in a trade classification. Accordingly, Respondent is responsible for paying liquidated damages to the workers in the amount of the unpaid wages set forth above.”

“REMAINING ISSUES

“The vast majority of the issues in the Amended OOD were resolved

above. Following is a summary of the issues that remain undecided:

The amount of wages paid and owed to Claimant Valladares-Ramos for the week ending 2/6/16.

The amount of wages paid and owed to Claimant Roger Orlando Valladares-Ramos for the week ending 2/6/16.

The amount of wages paid and owed to Claimant Jesus Rodriguez-Abriga for the week ending 4/9/16.

The amount of wages paid and owed to Claimant Omar Rodriguez-Palos for the weeks ending 4/2/16 and 4/16/16.

“Given that most of the issues have been resolved in this ruling and the Agency has the burden of proof as to the remaining undecided issues, the forum requests that the Agency notify the ALJ and the parties by email no later than noon on December 26, 2018, if the Agency would like the opportunity to

proceed to hearing on the unresolved issues. Unless the Agency indicates that it does not intend to proceed to hearing, the ALJ will contact the parties to schedule a new hearing date. If the Agency does not intend to proceed, the hearing will not be rescheduled and the ALJ will prepare a Proposed Order. Both the Agency and Respondent will have the opportunity to file exceptions to the Proposed Order, which would include the ability to object to any rulings made in

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this interim order (including a ruling that there is a question of fact or unresolved issue).”

(Ex. X17) The ALJ’s ruling is CONFIRMED.

11) On December 21, 2018, Administrative Prosecutor Adam Jeffries sent an email to the ALJ and Respondent, which stated, “The Agency does not intend to proceed to hearing on the unresolved issues.” (Ex. X18) 12) On March 11, 2019, the ALJ issued a proposed order that notified the participants they were entitled to file exceptions to the proposed order within ten days of its issuance. On March 20, 2019, the ALJ granted the Agency’s motion for an extension of time to file exceptions because the Administrative Prosecutor was serving on jury duty. The Agency timely filed exceptions on March 28, 2019. Respondent did not file any exceptions.


1) Respondent had a subcontract with Baldwin General Contracting Inc. to furnish labor for the construction of a public school classroom addition at the Maple School in Springfield, Oregon, in Lane County. 2) Respondent had a subcontract with Baldwin General Contracting Inc. to furnish labor for the construction of the OPS Crew Quarters in Albany, Oregon, in Linn County. 3) Respondent employed Alejandre, Flores, Oliveros and Valladares-Ramos to perform work on the Maple project. 4) Respondent employed Alejandre, Flores, Oliveros, Rodriguez-Abriga, Rodriguez-Solano, Rodriguez-Palos and Valladares-Ramos to perform work on the OPS project.

5) Alejandre did not receive timely prevailing wage rate wages and prevailing wage rate overtime wages earned on the Maple project in the amount of $9,141.37.30

6) Flores did not receive timely prevailing wage rate wages earned on the

Maple project in the amount of $325.99. 7) Oliveros did not receive timely prevailing wage rate wages and prevailing

wage rate overtime wages earned on the Maple project in the amount of $542.48. 8) Valladares-Ramos did not receive timely prevailing wage rate wages and

prevailing wage rate overtime wages earned on the Maple project in the amount of $1,999.99.

30 The job titles, dates and hours worked, prevailing wage rates and calculations for all of the claimants are explained in detail in Procedural Finding of Fact #10, and are incorporated herein.

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9) Alejandre did not receive timely prevailing wage rate wages and prevailing

wage rate overtime wages earned on the OPS project in the amount of $1,966.39. 10) Flores did not receive timely prevailing wage rate wages and prevailing

wage rate overtime wages earned on the OPS project in the amount of $1,047.85. 11) Oliveros did not receive timely prevailing wage rate wages and prevailing

wage rate overtime wages earned on the OPS project in the amount of $108.05. 12) Rodriguez-Abriga did not receive timely prevailing wage rate wages

earned on the OPS project in the amount of $1,388.80. 13) Rodriguez-Solano did not receive timely prevailing wage rate wages

earned on the OPS project in the amount of $4,960.00. 14) Rodriguez-Palos did not receive timely prevailing wage rate wages earned

on the OPS project in the amount of $3,164.98. 15) Valladares-Ramos did not receive timely prevailing wage rate wages and

prevailing wage rate overtime wages earned on the OPS project in the amount of $7,797.98.

CONCLUSIONS OF LAW

1) The Commissioner of the Bureau of Labor and Industries has the authority to order Respondents to pay the wage claimants any unpaid wages and liquidated damages, plus interest, for violations of ORS 279C.840(1) and ORS 279C.540. ORS 279C.855(1); ORS 652.332; OAR 839-025-0080.

2) The Maple and OPS projects were public works projects as defined in ORS 279C.800(6).

3) Respondent was Claimants’ employer at the Maple and OPS projects. 4) Respondent violated ORS 279C.840(1) and ORS 279C.800(1)(a) by

failing to timely pay prevailing wage rate wages and prevailing wage rate overtime wages.

5) Since a violation of ORS 279C.840 was established, Respondent is also

responsible for a total of $32,457.98 in liquidated damages in the amount of the unpaid wages. ORS 279C.855(1).

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OPINION

All allegations in the Agency's Amended OOD were resolved in the ALJ's interim order granting the Agency's motion for summary judgment. No further discussion is required as to the merits.


The Agency’s six exceptions request that the forum make corrections for

punctuation and the calculation for the wage total of Alejandre. The forum concludes that the exceptions are well taken and the Exceptions are GRANTED.

ORDER

NOW, THEREFORE as authorized by ORS 279C.840, OAR 839-025-0035, ORS 279C.855, ORS 652.140, ORS 652.150, and ORS 652.332, and as payment of liquidated damages, the Commissioner of the Bureau of Labor and Industries hereby orders Respondent R. B. Development Corporation Inc., to deliver to the


(1) A certified check payable to the Bureau of Labor and Industries in trust for Francisco Alejandre in the amount of ELEVEN THOUSAND ONE HUNDRED THIRTY-SEVEN DOLLARS AND SEVENTY-SIX CENTS ($11,137.76), plus

interest at the legal rate on that amount from the date the Final Order is issued until paid. (2) A certified check payable to the Bureau of Labor and Industries in trust for Filemon Flores in the amount of ONE THOUSAND THREE HUNDRED SEVENTY-THREE DOLLARS AND EIGHTY-FOUR CENTS ($1,373.84), plus

interest at the legal rate on that amount from the date the Final Order is issued until paid. (3) A certified check payable to the Bureau of Labor and Industries in trust for Rosalio Jimenez Oliveros in the amount of THREE HUNDRED FIFTY DOLLARS AND FIFTY-THREE CENTS ($650.53), plus interest at the legal rate on that

amount from the date the Final Order is issued until paid. (4) A certified check payable to the Bureau of Labor and Industries in trust for Roger Orlando Valladares-Ramos in the amount of NINE THOUSAND SEVEN HUNDRED NINETY-SEVEN DOLLARS AND NINETY-SEVEN CENTS ($9,797.97), plus interest at the legal rate on that amount from the date the Final

Order is issued until paid. (5) A certified check payable to the Bureau of Labor and Industries in trust for Jesus Rodriguez-Abriga in the amount of ONE THOUSAND THREE HUNDRED,

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EIGHTY-EIGHT DOLLARS EIGHTY CENTS ($1,388.80), plus interest at the

legal rate on that amount from the date the Final Order is issued until paid. (6) A certified check payable to the Bureau of Labor and Industries in trust for Daniel Rodriguez-Solano in the amount of FOUR THOUSAND NINE HUNDRED SIXTY DOLLARS ($4,960.00), plus interest at the legal rate on that amount from

the date the Final Order is issued until paid. (7) A certified check payable to the Bureau of Labor and Industries in trust for Omar Rodriguez-Palos in the amount of THREE THOUSAND ONE HUNDRED SIXTY-FOUR DOLLARS AND NINETY-EIGHT CENTS ($3,164.98), plus interest

at the legal rate on that amount from the date the Final Order is issued until paid.

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_____________________________

In the Matter of

VISION INTERNATIONAL PETROLEUM LLC

& HAI CHHENG GOV, RESPONDENTS, CASE

NO. 51-18


Issued May 23, 2019

_____________________________

SYNOPSIS

The forum concluded that Respondent Vision International Petroleum LLC (“Vision”) violated ORS 659A.030(1)(b), ORS 659A.030(1)(g), OAR 839-005-0021, OAR 839-005-0030(4)(a), ORS 659A.199 and ORS 659A.030(1)(b) when it failed to take sufficient action to prevent unlawful harassment, terminated Complainant because of his race and in retaliation for his complaints about unlawful harassment in the workplace. Respondent Hai Chheng Gov, the sole member of the Vision limited liability corporation, violated ORS 659A.030(1)(g) by aiding and abetting Vision’s violations. The forum awarded Complainant $60,000 in damages for mental and emotional

_____________________________ The above-entitled case came on regularly for hearing before Kari Furnanz, designated as Administrative Law Judge (“ALJ”) by Val Hoyle, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The hearing was held on November 14, 2018, in the W. W. Gregg Hearing Room of the Oregon Bureau of Labor and Industries, located at 800 NE Oregon Street, Portland, Oregon. The Bureau of Labor and Industries (“BOLI” or “the Agency”) was represented by Administrative Prosecutor Adriana Ortega, an employee of the Agency. The Agency called BOLI Complainant Federico Bustamante Bahena and Chris Lynch, the Portland Operations Manager of BOLI’s Civil Rights Division BOLI, as witnesses. Respondents were not present at the hearing and called no witnesses. The forum received into evidence: (a) Administrative exhibits X1 through X161 and (b) Agency exhibits A1-A15. Having fully considered the entire record in this matter, I, Val Hoyle, Commissioner of the Bureau of Labor and Industries, hereby make the following

1 Exhibits X13A –X16 were received after the hearing commenced.

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Findings of Fact (Procedural and on the Merits), Conclusions of Law, Opinion, and Order. 2


1) Complainant Federico Bustamante Bahena (“Complainant”) filed a complaint with the Agency’s Civil Rights Division on February 23, 2017, alleging that Respondent Vision International Petroleum LLC (“Vision”) discriminated against him based on his race, national origin and for engaging in protected whistleblowing activities in that Respondent subjected him to different terms and conditions, a hostile work environment and retaliated against him by terminating his employment in violation of ORS 659A.030(1)(a),(b),(f) and ORS 659A.199. He later filed an amended complaint naming Respondent Hai Chheng Gov (“Gov”) as an aider and abettor under ORS 659A.030(1)(g). (Exs. A1, A1A, A10, A13) 2) On February 23, 2018, the Agency’s Civil Rights Division issued a Notice of Substantial Evidence Determination (“SED”) in which it found substantial evidence of the following unlawful employment practices:3

Terminating Complainant’s employment on the basis of race and national origin in violation of ORS 659A.030(1)(a).

Subjecting Complainant to different terms and conditions of employment (harassment) on the basis of race and national origin in violation of ORS 659A.030(1)(b).

Retaliating against Complainant and terminating his employment for opposing unlawful employment practices in violation of ORS 659A.030(1)(f).

Retaliating against Complainant and terminating his employment on the basis that Complainant made a good faith report of a violation of rule or law in violation of ORS 659A.199.

Gov aided and abetted in the unlawful employment practices in violation of ORS 659A.030(1)(g).

(Ex. A15) 3) On July 11, 2018, the forum issued a Notice of Hearing to Respondents, the Agency, and Complainant stating the time and place of the hearing as November 6, 2018, beginning at 10:00 a.m., at the W. W. Gregg Hearing Room of the Oregon Bureau of Labor and Industries, located at 800 NE Oregon Street, 10th floor, Portland, Oregon. Together with the Notice of Hearing, the forum sent a copy of the Agency's Formal Charges, a document entitled “Summary of Contested Case Rights and Procedures” containing the information required by ORS 183.413, a document entitled

2 The Ultimate Findings of Fact required by OAR 839-050-0370(1)(b)(B) are subsumed within the Findings of Fact – The Merits. 3 Although the Division concluded that there was substantial evidence of discrimination on the basis of national origin, there were no allegations of national origin discrimination in the Formal Charges or Amended Formal Charges.

189

“Servicemembers Civil Relief Act (SCRA) Notification,” a multi-language notice explaining the significance of the Notice of Hearing, and a copy of the forum’s contested case hearings rules, OAR 839-050-000 to 839-050-0445. (Ex. X2) 4) The Formal Charges alleged that Vision engaged in unlawful employment practices in violation of ORS 659A.030(1)(a), ORS 659A.030(1)(b), ORS 659A.030(1)(f), ORS 659A.199(1),(2), OAR 839-005-0010(1)(a)(b)(c)(d)(A), (B)(i)(I), OAR 839-005-0010(4)(a)(A)(B)(C), (d)(A) and OAR 839-010-0100(1). Additionally, the Formal Charges alleged that Gov unlawfully aided and abetted the unlawful employment practices in violation of ORS 659A.030(1)(g). The Formal Charges sought lost wages of at least $3,200 and out-of-pocket expenses of at least $500 and damages for emotional, mental and physical suffering in the amount of at least $60,000. The Formal Charges also asked that Respondents be trained, at their expense, “on the correct interpretation and application of laws pertaining to employment discrimination” and that Respondents be enjoined from violating laws. The Formal Charges stated that the forum’s order may include such other relief as appropriate to eliminate the effects of the unlawful practices found as to Complainant and others similarly situated. (Ex. X2a) 5) On July 31, 2018, ALJ Jennifer Gaddis issued an interim order reassigning the case to ALJ Kari Furnanz. The interim order specified that the hearing date and case deadlines remained the same, subject to any interim orders subsequently issued by ALJ Furnanz. (Ex. X3)

6) On August 21, 2018, the Agency moved for an Order of Default against Respondents, requesting that the forum find that Respondents were served and are in default. No responses to the motion were filed. The Agency also filed a supplement to the motion on September 11, 2018. The forum issued an interim order on September 27, 2018, which stated, in pertinent part:

“OAR 839-050-0130(4) requires that ‘a party must file an answer within

20 days after service of the [Formal Charges].’ OAR 839-050-0030(1), describes the methods of serving Formal Charges and states, in pertinent part:

‘* * * [T]he charging document [in a BOLI contested case] will be served on the party or the party's representative by personal service or by registered or certified mail. Service of a charging document is complete upon the earlier of:

‘(a) Receipt by the party or the party's representative; or ‘(b) Mailing when sent by registered or certified mail to the correct address of the party or the party's representative.’

‘OAR 839-050-0330(1)(a) provides that default may occur when ‘[a] party fails to file a required response, including * * * an answer, within the time specified in the [Formal Charges].’”

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“RESPONDENT CHHENG GOV “The Agency argues that Chheng Gov is in default because he was served

with the Notice of Hearing and Formal Charges on July 13, 2018, by certified mail, and has failed to file an answer. The Agency submitted the green certified mail postcard showing that the NOH and Formal Charges were served by certified mail on Chheng Gov at the address listed for him on Oregon’s Secretary of State website. (Agency Exs. B, D, E) Accordingly, the forum finds Chheng Gov to be in default for not filing an answer within 20 days of service and the Agency’s motion is GRANTED.

“RESPONDENT VISION “The Agency asserts that Vision is in default because the Agency served Chheng Gov by certified mail and Chheng Gov was identified as the registered agent of Vision on the website of Oregon’s Secretary of State dated January 27, 2017. ‘Each manager [of a limited liability company] is an agent of the limited liability company for the purpose of its business.’ ORS 63.140(2)(a). Accordingly, personal service upon Chheng Gov on April 13, 2017, constituted service upon Vision’s ‘representative’ under OAR 839-050-0030(1)(a). (Agency Exs. B, D, E) Additionally, the Agency also submitted proof of service by certified mail at the address listed as the principal place of business on Oregon’s Secretary of State website. (Agency Exs. B, C, E) Because Vision has not yet filed an answer, it is in default and the Agency’s motion as to Vision is GRANTED.

“Notice of Default

“Relief from default may be granted if Vision and Chheng Gov show good cause, within ten days after the date of this order, for failing to timely file an answer. A request for relief must be in writing and accompanied by a written statement, together with appropriate documentation, setting forth the facts supporting the claim of good cause. OAR 839-050-0340. Any document filed by Vision should be submitted by an attorney or should be filed together with a statement indicating that the person filing the document is an authorized representative of the party. See OAR 839-050-0110(1), (2).”

(Exs. X4 – X6) 7) On October 4, 2018, the ALJ issued two interim orders. The first, entitled "Requirements for Filing Motions and Other Documents," explained the forum's filing requirements, including the method by which documents must be filed and the timeline for filing documents. The second order required case summaries to be filed no later than February 13, 2019, set out the requirements for what each participant must include in their case summary and set a prehearing telephone conference for Tuesday, October

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9, 2018, at 10:30 a.m. (Exs. X7, X8) 8) A prehearing telephone conference was held at 10:30 a.m. on October 9, 2018. Administrative Prosecutor Adriana Ortega appeared on behalf of the Agency. None of the Respondents called into the conference call. The conference was digitally recorded. During the conference, the ALJ discussed the Formal Charges with Ms. Ortega, who indicated that the Agency intended to amend the Formal Charges and stated that the Agency could do so within the next business day. Accordingly, the forum issued an interim order requiring the Agency to file Amended Formal Charges no later than October 10, 2018. (Ex. X10) 9) The Agency filed Amended Formal Charges on October 10, 2018, to add references to Complainant’s verified BOLI complaint and the Notice of Substantial Evidence Determination. (Exs. X9-9b) 10) The Agency filed its case summary on October 23, 2018. Respondents did not file a case summary. (Ex. X11; Hearing Record) 11) The forum held a prehearing telephone conference at 10:00 a.m. on Monday, November 5, 2018, at the request of the Administrative Prosecutor, who requested a postponement of a few days due to illness. Administrative Prosecutor Adriana Ortega appeared on behalf of the Agency. None of the Respondents called into the conference call. The conference was digitally recorded. The Agency demonstrated good cause for a postponement as required by OAR 839-050-0150(5), and the request for a brief postponement was granted. The hearing was rescheduled to begin on November 14, 2018, at 9:00 a.m. (Ex. X12) 12) On November 14, 2018, the ALJ issued an interim order appointing Jessica Dover, an Oregon Certified Court Interpreter pursuant to ORS 45.291, to serve as the Spanish language interpreter at the hearing. At the beginning of the hearing, the ALJ recessed the hearing briefly so that the interpreter and Complainant could communicate. After the recess, the interpreter stated that she could effectively communicate with Complainant. (Hearing Record; Ex. X13) 13) At the start of hearing, pursuant to ORS 183.415(7), the ALJ orally informed the participants of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing. (Hearing Record) 14) During the hearing, the ALJ noted that the BOLI Complaint which contained Complainant’s signature was written in the Spanish language. At the ALJ’s request, the Agency submitted the English language version of the complaint that was signed by Complainant. (Exs. A1, A1A; Hearing Record) 15) The hearing commenced on November, 14, 2018, and concluded that same day. (Hearing Record)

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16) On November 27, 2018, Respondents filed a motion to postpone the hearing because Respondent Gov’s sister passed away unexpectedly on November 9, 2018, and her funeral service was held on November 15, 2018. The motion stated that Respondent Gov did not attend the hearing because of his involvement in the family matter. The ALJ issued an interim order, which stated, in pertinent part:

“The forum lacks the authority to grant Respondents’ motion for the following reasons:

First, Respondents were declared in default on September 27, 2018, for failing to file an answer. When parties are in default, ‘The administrative law judge will not permit the defaulted party to participate in any manner in the hearing, including, but not limited to, presentation of witnesses or evidence on the party’s own behalf, examination of Agency witnesses, objection to evidence presented by the Agency, making of motions or argument, and filing exceptions to the Proposed Order.’ OAR 839-050-0330(4). (Emphasis added.)

Second, in ruling on motions for postponement, the administrative law judge must consider, among other factors, ‘[t]he timeliness of the request.’ OAR 839-050-0150(5)(a)(B). While the forum is sympathetic to Respondent Gov’s family situation, there is no authority to postpone a hearing which has already been held. There is also no evidence in the record explaining that Respondent Gov was unable to contact the forum to request a postponement prior to the November 14, 2018, hearing date.

“For those reasons, Respondents’ motion is DENIED.”

(Ex. X13A-X16). 17) On May 7, 2019, the ALJ issued a proposed order that notified the participants they were entitled to file exceptions to the proposed order within ten days of its issuance. The Agency timely filed exceptions on May 17, 2019. Respondents did not file any exceptions, and were not entitled to do so under OAR 839-050-0330(4) because they were in default.


1) Vision is a limited liability corporation in Oregon. Gov is the registered agent and the sole member of the corporation. (Testimony of Lynch; Exs. X2A, X9, A3)4

4 Factual matters alleged in a charging document that are not denied in the answer are deemed admitted by the answering party. OAR 839-050-0130(3); In the Matter of Banyan Built Constr. Inc., 36 BOLI 271, 279 (2018).

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2) Complainant is from Mexico and identifies as Mexican. Spanish is his primary language. (Hearing Record; Exs. X2A, X9) 3) Complainant’s friend, Martin Monroy, was employed by Vision and hired Complainant to work as a gas station attendant at the 76 station located on Main and Burnside Streets in Gresham, Oregon, in November 2016. Complainant’s duties included putting gas into cars and filling propane gas tanks for customers. (Testimony of Complainant; Ex. X2A, X9) 4) Complainant felt that he was a good worker who took on responsibilities that were given to him. He often reported to work when he was called in on a day off. (Testimony of Complainant) 5) When Complainant came in to work in the evenings, he heard other workers talk badly about Latinos. For example, Complainant heard workers question why Gov gave work to Latinos, when they could do it. When Complainant walked into the area where a conversation like this was happening, he heard someone say “shut up, he’s going to hear you” and he was asked if he spoke English. Complainant did not tell Gov about these comments. Gov behaved well towards Complainant and did not say derogatory comments to him. Complainant only heard the comments from the other workers. (Testimony of Complainant) 6) Complainant earned minimum wage. Vision paid him in cash every two weeks. He earned approximately $800 for every two-week pay period. At first, Monroy handed Complainant the cash for his wages. After a while, Gov provided Complainant with his cash wages. One of the two usually paid him. However, on January 19, 2017, Rodney, a white co-worker, paid Complainant his cash wages instead of Monroy or Gov. After Rodney handed Complainant his wages, Complainant counted the cash and noticed that the money was $30 short and he told Rodney. Rodney responded that he paid him in full. Rodney then left the premises because it was the end of his shift. (Testimony of Complainant) 7) Later that day, a female worker (“Terri”)5 telephoned Rodney and told him that he owed Complainant money. Rodney returned to the 76 station later that evening around 10:00 p.m. Rodney appeared to be “drunk” and “on drugs,” and he started to insult Complainant. Complainant asked Rodney for the $30 that was owed to him. In response, Rodney threw cash towards Complainant. Rodney then grabbed Complainant’s timecard and punched it, and told Complainant to “get out” of there and “go back to Mexico.” Complainant became angry and told Rodney he could not do that. Rodney grabbed a weapon that administers shocks and placed it next to Complainant’s

5 Complainant was not certain if the female worker’s name was “Terri,” “Kari” or “Karen.” Since this detail is not pertinent to the forum’s analysis, this worker will be referred to as “Terri.”

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chest.6 Complainant telephoned Monroy and asked for help. Monroy came to the station. (Testimony of Complainant) 8) After the incident between Rodney and Complainant, Terri called the police. Complainant and Monroy went inside the gas station to wait. The police arrived and spoke to the people outside, but did not talk to Complainant. After the police left, Complainant left with Monroy. (Testimony of Complainant) 9) Monroy later spoke to Gov and told him about the incident with Complainant and Rodney on January 19, 2017. Gov said that Complainant should return to work and there would be no problem. Complainant returned to work the next day. Around 3:00 p.m., Terri and another worker named Mario, who was Mexican, were present. Terri yelled rude things at Complainant and Mario, such as “go back to your country, to Mexico,” “you are taking our jobs,” “you are crying over $30” and “get out of here, mother fucking Mexicans.” Terri threw $30 at Complainant and said “get out of here.” (Testimony of Complainant) 10) Complainant was mad and offended by the words said to him by Rodney and Terri. (Testimony of Complainant) 11) Complainant spoke to Gov about how he was being treated by Rodney and Terri. Gov said that Complainant should ignore their conduct and continue working because Complainant was a good worker. Gov said he would take care of the problem and that Complainant should come back to work. Complainant told him “no” and said that Gov should first fix the problem because he was the boss. Complainant could not ignore the offensive conduct because it was “really nasty.” (Testimony of Complainant) 12) Gov told Complainant to come work at another gas station operated by Vision, located at the intersection of Foster Road and 122nd Avenue in Portland. Complainant understood that Gov was the boss in charge of this location. The Foster/122nd location employed the same workers as those that worked at the Gresham service station. When Complainant arrived at the new location, he noticed white workers talking amongst themselves and heard them question why Gov hired Mexicans to do work they were able to do themselves. The workers told Complainant there was no work available and that the schedule was full. Complainant told the other workers that Gov had sent him there to work. One of the workers replied, “I don’t care.” Complainant believed he was fired at that point. In his communications with BOLI, Gov admitted that Vision terminated Complainant’s employment.7 (Testimony of Complainant; Ex. A12A)

6 Complainant did not testify that Rodney shocked him or activated the weapon, and his co-worker told a BOLI investigator that weapon was not charged. (Ex. A5; Testimony of Lynch) 7 The forum accepted this statement made by Gov in his interactions with BOLI because it was consistent with other credible evidence in the record. However, the forum did not accept all statements made by Gov to BOLI. For example, Gov stated that Complainant was fired because “the employees all got in a fight and Terri said Complainant held her hostage and kept her in the office.” However, that statement contradicts other credible evidence. (Exs. A5, A7)

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13) After he was terminated, it took Complainant more than a month to find another job. His new employer paid him more money than he earned working for Vision. (Testimony of Complainant) 14) All of the witnesses who testified were credible.

CONCLUSIONS OF LAW

1) At all times material herein, Vision was an employer as defined in ORS 659A.001(4) and employed Complainant. 2) The actions, statements, and motivations of Gov (Complainant’s supervisor) are properly imputed to Vision. In the Matter of Lioness Holdings, LLC dba Tan Republic and Peter Lamka, 36 BOLI 229, 264 (2018). 3) Vision discharged Complainant because of his race in violation of ORS 659A.030(1)(a). 4) Vision subjected Complainant to unlawful harassment based on his race, in violation of ORS 659A.030(1)(b) and OAR 839-005-0030(4)(a)(A), based on Vision’s failure to take any appropriate and corrective action in response to the events of January 29, 2017, and the hostile work environment Complainant experienced thereafter. 5) Complainant, acting in good faith and while employed by Vision, reported information that he believed was evidence of a violation of a state law (unlawful harassment) to Gov. 6) Vision, acting through Gov, discharged Complainant from employment, because he made a good faith report to Gov about unlawful discrimination and harassment, thereby violating ORS 659A.199 and OAR 839-010-0100(1). 7) At all times herein, Gov was an individual and a “person” under ORS 659A.001(9)(a) and ORS 659A.030(1)(g). 8) Gov aided and abetted Vision in the unlawful employment practices described above, in violation of ORS 659A.030(1)(g). 9) The Commissioner of the Bureau of Labor and Industries has jurisdiction of the persons and of the subject matter herein. The sums of money awarded and the other actions required of Respondents in the Order below are an appropriate exercise of that authority. ORS 659A.800 - ORS 659A.865. 10) Pursuant to ORS 659A.850(4)(a)(B), the Commissioner of the Bureau of Labor and Industries has the authority under the facts and circumstances of this case to issue a cease and desist order, including an award of compensatory damages to

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Complainant, based on Respondents’ unlawful practices. The sum of money awarded and the other actions required of Respondents in the Order below are an appropriate exercise of that authority.

OPINION

The Formal Charges alleged that Vision engaged in the following unlawful employment practices:

Discharging Complainant’s employment on the basis of race in violation of ORS 659A.030(1)(a).

Subjecting Complainant to different terms and conditions of employment (harassment) on the basis of race in violation of ORS 659A.030(1)(b).

Retaliating against Complainant and terminating his employment for opposing unlawful employment practices in violation of ORS 659A.030(1)(f).

Retaliating against Complainant and terminating his employment on the basis that Complainant made a good faith report of a violation of rule or law in violation of ORS 659A.199.

Additionally, the Agency alleges that Gov aided and abetted the unlawful employment actions in violation of ORS 659A.030(1)(g). The Agency seeks lost wages, out-of-pocket expenses and emotional distress damages for Complainant. When a respondent defaults in a case in which the Agency has issued Formal Charges, the Agency need only establish a prima facie case to support the allegations of its charging document in order to prevail. In the Matter of Leo Thomas Ryder dba Leo's BBQ Bar & Grill, 34 BOLI 67, 74 (2015).

LIABILITY OF VISION FOR DISCHARGE BECAUSE OF RACE

It is an unlawful employment practice for “[a]n employer, because of an individual's race * * * to * * * discharge the individual from employment.” ORS 659A.030(1)(a). To prove that Vision violated ORS 659A.030(1)(a) by terminating Complainant’s employment, the Agency must establish a prima facie case consisting of the following five elements: (1) Vision was an employer; (2) Vision employed Complainant; (3) Complainant was in a protected class (race); (4) Vision discharged Complainant; and (5) Vision terminated Complainant because of his race. In the Matter of Maltby Biocontrol, Inc., Howard Maltby, James Bassett, and Louis Bassett, 33 BOLI

121, 155-56 (2014). It is undisputed that Vision was an employer and employed Complainant. As well, Complainant was in a protected class because of his race. Vision admitted that it discharged Complainant. Additionally, the forum concludes that Vision terminated him “because of” his race for the following reasons. Although Gov told BOLI investigators that Complainant

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was terminated because he got into a fight with another employee, Complainant credibly testified that he and Monroy talked to Gov about Rodney pointing the weapon at Complainant’s chest. Gov appears to have chosen to disregard that information and terminate Complainant instead of disciplining Rodney, a white employee who was the aggressor in the situation.

LIABILITY OF VISION FOR RACE DISCRIMINATION

It is an unlawful employment practice for “[a]n employer, because of an individual's * * * race * * * to discriminate against the individual in compensation or in terms, conditions or privileges of employment.” ORS 659A.030(1)(b). The Amended Formal Charges allege two theories of race discrimination: (1) harassment by supervisor and (2) harassment by a co-worker.8 Harassment by a Supervisor The forum first examines whether there is evidence of harassment by a supervisor. Supervisors with “immediate (or successively higher) authority over the employee” are considered agents of an employer for purposes of an employer's Title VII liability. Faragher v. City of Boca Raton, 524 US 775, 807 (1998).9 Determining whether a particular individual is a supervisor “is not dependent upon job titles or formal structures within the workplace.” Dawson v. Entek Int'l., 630 F3d 928, 940 (9th Cir 2011), citing McGinest v. GTE Service Corp., 360 F3d 1103, 1119 n.13 (9th Cir 2004). Rather, for purposes of vicarious liability under Title VII a person is a supervisor “if he or she is empowered by the employer to take tangible employment actions against the victim.” Vance v. Ball State University, 570 US 421, 424 (2013). A tangible employment action is “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998). In this case, Complainant testified as to negative treatment he received from co-workers. There was no evidence that a supervisor harassed him and, in its closing argument, the Agency did not argue that he was harassed by a supervisor. Accordingly, the forum finds there was no evidence of harassment by a supervisor and proceeds to analyze the allegation of co-worker harassment. Co-Worker Harassment

A prima facie case of co-worker harassment based on race consists of the

8 There is also a specific separate allegation of subjecting Complainant to different terms and conditions because of his race. Because the forum has already found discrimination in regards to the termination, it finds this allegation to duplicate the claim of harassment and will not separately analyze it. 9 Federal law similar to Oregon’s civil rights laws is not binding on the forum, but federal decisions can be instructive in construing and applying similar state law. Bravo Event Services, Inc. and Dan Kor, 36 BOLI 250, 265 (2018). See also In the Matter of Murrayhill Thriftway, Inc., 20 BOLI 130, 149 (2000) (stating that “decisions interpreting Title VII are instructive in construing and applying the similar state law”).

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following elements: (1) respondent is a respondent as defined by statute; (2) complainant is a member of a protected class; (3) complainant was harmed by harassment directed at complainant by co-workers; (4) complainant’s race was a reason for the co-worker harassment; and (5) the harassment was sufficiently severe or pervasive to have the purpose or effect of unreasonably interfering with the complainant’s work performance or creating an intimidating, hostile or offensive working environment. OAR 839-005-0010(4)(f); Maltby, 33 BOLI at 145. The standard for determining whether harassment is sufficiently severe or pervasive to create a hostile, intimidating or offensive working environment is whether a reasonable person in the circumstances of the complaining individual would so perceive it. OAR 839-005-0010(4)(b). Elements (1) and (2) of the Agency’s prima facie case are not in dispute. Element (3) is satisfied by Complainant’s credible testimony that Rodney failed to pay him $30 owed to him, threw cash at Complainant when he asked for the money and pointed a weapon at his chest. This treatment, coupled with racial epithets such as Rodney telling him to “go back to Mexico,” established Element (4). Element (4) is also supported with the testimony that employee Terri used racial epithets towards Complainant. See Maltby, 33 BOLI at 146 (recognizing that insults prefaced by the words “Spanish” or “Hispanic” demonstrated a racial motivation). Element (5) is satisfied by Complainant’s credible testimony that the racial comments and stun gun confrontation were upsetting and caused him to be uncomfortable in the workplace. The forum further finds that a reasonable person in the circumstances of Complainant would perceive the conduct to be sufficiently severe and pervasive to create a hostile, offensive or intimidating work environment. “An employer is liable for harassment by the employer's employees or agents who do not have immediate or successively higher authority over the complaining individual when the employer knew or should have known of the conduct, unless the employer took immediate and appropriate corrective action.” OAR 839-005-0010(4)(f). Monroy and Complainant spoke to Gov about the altercation with the stun weapon and the derogatory racial comments directed towards Complainant.10 After that, Gov said it would be “fine,” but the treatment did not stop. Accordingly, Vision is liable for the harassment of Complainant by Rodney and Terri.

LIABILITY OF VISION FOR DISCHARGE BECAUSE OF OPPOSITION TO UNLAWFUL

HARASSMENT The Agency alleges that Vision violated ORS 659A.199 & OAR 839-010-0100(4) by terminating Complainant because he made a good faith report of information he believed to be evidence of a violation of ORS 659A.030(1)(b).

10 Complainant admitted that he did not inform Gov about the offensive comments about Mexicans that were made in the workplace prior to January 19, 2017. Accordingly, the forum concludes that Vision only “knew or should have known of” the conduct that occurred after Monroy and Complainant made complaints to Gov.

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ORS 659A.199(1) states, in pertinent part:

It is an unlawful employment practice for an employer to discharge * * * an employee * * * 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.

OAR 839-010-0100(1) interprets ORS 659A.199 as:

(1) ORS 659A.199 prohibits any employer with one or more employees in Oregon from discharging * * * an employee * * * for the reason that the employee has in good faith reported information to anyone that the employee believes is evidence of a violation of any state or federal law, rule or regulation.

The “good faith” requirement in ORS 659A.199 is met when the whistleblower has a reasonable belief that the information reported has occurred and that the information, if proven, constitutes evidence of a violation of a state or federal law, rule or regulation. Hey Beautiful Enterprises, Ltd. and Kimberly Schoene, 34 BOLI 80, 95 (2015). Under ORS 659A.199, an employee “report[s]” information when the employee communicates information to “anyone” that the employee believes is evidence of a violation of state law. Complainant’s reports to Gov about the unlawful racial harassment directed towards him satisfy the reporting requirement of ORS 659A.199. The forum concludes that Gov’s decision to terminate Complainant was motivated, at least in part, by Complainant’s report of harassment because: (1) the termination shortly followed the report of harassment, (2) Gov failed to take action to correct the harassment and insisted that everything would be “fine,” and (3) Gov told BOLI that Complainant was terminated for being in a fight, although the instigator of the fight (Rodney) was not terminated. Accordingly, the Agency established a prima facie case of a violation of ORS 659A.199.

The Agency also alleges that Vision violated ORS 659A.030(1)(f) when it terminated Complainant because he opposed Respondents’ unlawful harassment. The analysis used in determining that Vision violated ORS 659A.199 applies equally to the Agency’s ORS 659A.030(1)(f) claim. Accordingly, the forum’s conclusion that Vision violated ORS 659A.199 necessarily leads to the conclusion that Vison also violated ORS 659A.030(1)(f) when it terminated Complainant after his reports of discrimination. See Hey Beautiful Enterprises, Ltd., 34 BOLI at 96.

LIABILITY OF GOV FOR AIDING AND ABETTING

ORS 659A.030(1)(g) provides that it is an unlawful employment practice “[f]or any person, whether an employer or employee, to aid, abet, incite, compel or coerce the doing of any of the acts of this chapter or to attempt to do so.” A corporate officer and owner who commits acts rendering the corporation liable for an unlawful employment

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practice may be found to have aided and abetted the corporation's unlawful employment practice. In the Matter of Bravo Event Services, Inc. and Dan Kor, 36 BOLI 250, 268 (2018). As set forth above, Gov was the registered agent and sole member of Vision, a limited liability corporation. Accordingly, he aided and abetted (1) the unlawful harassment of Complainant by failing to take sufficient corrective action and (2) unlawfully terminating Complainant’s employment. Therefore, he is in violation of ORS 659A.030(1)(g). As an aider and abettor, Gov is jointly and severally liable with Vision for all of Vision’s unlawful employment practices.

DAMAGES Lost Wages Complainant is eligible for a back pay award because he was discharged in violation of ORS 659A.030(1), ORS 659A.199 and ORS 659A.030(1)(g). ORS 659A.850. The purpose of a back pay ward in an employment discrimination case is to compensate a complainant for the lost wages he would have received but for the unlawful employment practice. In the Matter of Oregon Truck Painting, LLC, On Time Painting, Inc., Richard Bowman, Individually, and Amanda M. Marin, Individually, 37 BOLI _, _ (2018). Back pay awards are calculated to make a complainant whole for injuries suffered as a result of the unlawful termination. Id.

Complainant earned approximately $800 every two weeks, which calculates to approximately $1,600 per month. After his termination, he was unemployed for a month until he found a new position that paid him higher wages than he earned working for Vision. Accordingly, the forum concludes that Complainant is entitled to $1,600 in lost wages. Out-of-Pocket Expenses This forum has consistently held that out-of-pocket expenses that are directly attributable to an unlawful practice are recoverable from a respondent as a means to eliminate the effects of any unlawful practice found. Id. There was no testimony or other evidence in the record as to any out-of-pocket expenses Complainant had to pay as a result of his termination, and the Agency appeared to acknowledge that in its closing argument. Accordingly, the forum does not award out-of-pocket expenses. Emotional Distress Damages The Agency seeks damages on behalf of Complainant in the amount of “at least” $60,000 for emotional, mental and physical suffering. Pursuant to ORS 659A.850, the Commissioner of the Bureau of Labor and Industries has the authority to award money damages for emotional, mental, and physical suffering sustained. In the Matter of Oregon Truck Painting, LLC, On Time Painting, Inc., Richard Bowman, Individually, and

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Amanda M. Marin, Individually, 37 BOLI at _. The commissioner has the authority to fashion a remedy adequate to eliminate the effects of unlawful employment practices. Id.

In determining an award for emotional and physical suffering, the forum considers the type of discriminatory conduct, and the duration, frequency, and severity of the conduct. It also considers the type and duration of the mental distress and the vulnerability of the aggrieved persons. A complainant’s testimony, if believed, is sufficient to support a claim for mental suffering damages. Id.

The record included evidence that the discriminatory conduct of Vision and Gov negatively impacted Complainant. The Formal Charges seek “at least” $60,000 in damages for emotional, mental, and physical suffering. Complainant testified about the hurt and anger he felt based on the hostile work environment. Unlike past BOLI cases awarding higher amounts to victims of unlawful harassment and unlawful termination, there was no evidence in the record as to how Complainant felt following his termination or any lasting impacts on his life up to the date of the hearing. Accordingly, based on the record in this case, the forum agrees with the Agency that $60,000 is an appropriate award of emotional distress damages.

OTHER REQUESTED RELIEF

In its Amended Formal Charges, the Agency asked the forum to issue a cease and desist order against Respondents, requiring them to immediately stop all of the unlawful employment practices alleged in the Amended Formal Charges. BOLI’s Commissioner is authorized to issue an appropriate cease and desist order reasonably calculated to eliminate the effects of any unlawful practice found. ORS 659A.850(4). Among other things, that may include requiring a respondent to:

“(a) Perform an act or series of acts designated in the order that are reasonably calculated to: “(A) Carry out the purposes of this chapter; “(B) Eliminate the effects of the unlawful practice that the respondent is found to have engaged in, including but not limited to paying an award of actual damages suffered by the complainant and complying with injunctive or other equitable relief; and “(C) Protect the rights of the complainant and other persons similarly situated[.]” The forum finds that the Agency’s requested cease and desist order to be

appropriate relief in this case.

EXCEPTIONS

The Agency filed four exceptions requesting that the forum make corrections of

scrivener’s errors. The forum concludes that the exceptions are well taken and the

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exceptions are GRANTED, as reflected in revisions to the sections above.

ORDER

A. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS 659A.850(4), and to eliminate the effects of the violations of ORS 659A.030(1)(b), ORS 659A.030(1)(g), OAR 839-005-0021, OAR 839-005-0030(4)(a), ORS 659A.199 and ORS 659A.030(1)(b) by Respondents Vision International Petroleum, LLC and Hai Chheng Gov, and as payment of the damages awarded, the Commissioner of the Bureau of Labor and Industries hereby orders Respondents Vision International Petroleum, LLC and Hai Chheng Gov to deliver to the Administrative Prosecution Unit

of the Bureau of Labor and Industries, 1045 State Office Building, 800 NE Oregon Street, Portland, Oregon 97232-2180, a certified check payable to the Bureau of Labor and Industries in trust for Federico Bustamante Bahena in the amount of:

1) SIXTY THOUSAND DOLLARS ($60,000.00), representing compensatory damages for emotional and physical suffering experienced by Complainant as a result of Respondents’ unlawful employment practices found herein; plus, 2) ONE THOUSAND SIX HUNDRED DOLLARS ($1,600.00), representing wages lost as a result of Respondents’ unlawful employment practices; plus

3) Interest at the legal rate on the sum of SIXTY-ONE THOUSAND SIX HUNDRED DOLLARS ($61,600.00), until paid.

B. NOW, THEREFORE, as authorized by ORS 659A.850(2) and 659A.850(4), and to eliminate the effects of Respondents’ unlawful employment practices found herein, the Commissioner of the Bureau of Labor and Industries hereby orders Respondents Vision International Petroleum, LLC and Hai Chheng Gov to

cease and desist from discriminating or retaliating against any employee based upon the employee’s race or complaints of unlawful discrimination.

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_____________________________

In the Matter of

NAVEX GLOBAL, INC., RESPONDENT, CASE

NO. 59-17

Amended Final Order of Commissioner Val Hoyle Issued September 30, 2019

_____________________________

FINDINGS OF FACT

1) Complainant Sharae Epperheimer filed a verified complaint with the Bureau of Labor and Industries’ (“BOLI” or “the Agency”) Civil Rights Division on May 12, 2016, alleging that she was the victim of unlawful employment practices. 2) After investigating the complaint, the Agency issued a Notice of Substantial Evidence Determination and Formal Charges, alleging that Respondent NAVEX Global, Inc., engaged in an unlawful employment practice. 3) Respondent filed an answer to the Formal Charges on September 11, 2017, in which it denied that it had unlawfully discriminated against Complainant. 4) A contested case hearing was held on November 14-16, 2017, in the Agency’s W.W. Gregg Hearing Room, located at 800 NE Oregon Street, Portland, Oregon. 5) After the hearing, on April 30, 2018, the Agency issued a Final Order (“the Final Order”), in which it concluded that Respondent had engaged in an unlawful employment practice, and awarded Complainant $148,373.14 in damages. 6) Respondent timely filed a Petition for Judicial Review of the Final Order with the Oregon Court of Appeals. 7) Additionally, on August 24, 2018, Respondent obtained a supersedeas bond (“the Supersedeas Bond”), in order to secure the damages award while judicial review was pending. 8) On February 25, 2019, Respondent filed its opening brief with the Oregon Court of Appeals, asking the court to reverse and remand the Final Order. 9) Following the filing of Respondent’s opening brief, the Agency, Complainant, and Respondent began to discuss a settlement of the case. 10) Consistent with those discussions, and pursuant to ORS 659A.840(1) and ORS 659A.840(2), on September 30, 2019, the Agency, Complainant, and Respondent

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agreed to settle the case and executed a Settlement Agreement (“the Settlement Agreement”) resolving all remaining issues on judicial review. The Settlement Agreement is attached to this Amended Final Order as EXHIBIT A.

11) Among other things, the Settlement Agreement provides for the following actions:

a. BOLI shall withdraw and vacate the Final Order, dated April 30, 2018 and issue this Amended Final Order, which (1) describes the procedural history of the judicial review in this case, (2) includes a statement that the parties agreed to settle the case, and (3) attaches a copy of the Settlement Agreement. b. Within ten (10) days after issuance of this Amended Final Order, Respondent shall deliver to BOLI a certified check payable to Elmer & Burnot PC in trust for Complainant in the amount of $62,500.00. c. BOLI and Complainant shall fully release Respondent for all claims arising out of or relating to Complainant’s complaint and BOLI’s allegations in this case. d. BOLI shall release the Supersedeas Bond in this case, dated August 24, 2018.

ORDER

NOW, THEREFORE, as authorized by ORS 659A.840(1), ORS 659A.840(2), and ORS 659A.840(5), the Commissioner of the Bureau of Labor and Industries hereby orders the following, based on the terms of the Settlement Agreement:

A. The Final Order, dated April 30, 2018, as well as all of the Findings of Fact, Conclusions of Law, and opinions contained therein, is withdrawn and vacated. B. Within ten (10) days after issuance of this Amended Final Order, Respondent shall deliver to the Administrative Prosecution Unit of the Bureau of Labor and Industries, 1045 State Office Building, 800 NE Oregon Street, Portland, Oregon 97232-2180, a certified check payable to Elmer & Burnot PC in trust for Complainant Sharae Epperheimer in the amount of $62,500.00. C. BOLI releases Respondent from all claims and allegations arising out of or relating to Complainant’s complaint in this case. D. BOLI releases the Supersedeas Bond in this case, dated August 24, 2018.

[Exhibit A (Settlement Agreement) is a public record on file with the forum. Individuals seeking to view the agreement may submit a public records request.]

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_____________________________

In the Matter of

HORIZONTAL MOTORSPORTS, INC., AND

ROBERT S. DUGGER JR., INDIVIDUALLY AS AIDER AND ABETTOR PURSUANT TO ORS 659A.030(1)(G),

RESPONDENTS, CASE NO. 63-18


Issued May 12, 2020

_____________________________

SYNOPSIS

The Amended Formal Charges alleged that Respondents terminated Complainant because he made a report of a violation of state law (a wage claim), in violation of ORS 659A.199(1), OAR 839-010-0100(1), ORS 652.355(1)(a),(2), OAR 839-010-0100(4)(a), and ORS 659A.030(1)(g). When the evidence presented at hearing included other credible reasons for terminating Complainant’s employment, the forum concluded that the Agency failed to prove the alleged violations by a preponderance of the evidence and dismissed all charges against Respondents.

_____________________________

The above-entitled case came on regularly for hearing before Kari Furnanz, designated as Administrative Law Judge (“ALJ”) by Val Hoyle, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The hearing was held on January 15, 2019, in the W. W. Gregg Hearing Room of the Oregon Bureau of Labor and Industries, located at 800 NE Oregon Street, Portland, Oregon. The Bureau of Labor and Industries (“BOLI” or “the Agency”) was represented by Administrative Prosecutor Adam Jeffries, an employee of the Agency. Respondents were represented throughout the proceeding by Attorney Gregory Englund. Additionally, Respondent Robert Dugger, Jr. (“Dugger”) was present throughout the hearing. Steve Hamann was present throughout the hearing as the corporate representative of Horizontal Motorsports, Inc. (“HMS”) until the conclusion of Dugger’s testimony. The Agency called BOLI Complainant Byron Randolph (“Randolph”), Erin Owen and BOLI Civil Rights Investigator Moayyad Khoshnaw as witnesses. Respondent called Dugger, Bryan Notz, Steve Hamann and Debbie Bakkensen as witnesses. The forum received into evidence: (a) Administrative exhibits X1 through X13, (b) Agency’s exhibits A1-A17 and (c) Respondents’ exhibits R1-R5, R7-R10 and R12.

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Having fully considered the entire record in this matter, I, Val Hoyle, Commissioner of the Bureau of Labor and Industries, hereby make the following Findings of Fact (Procedural and on the Merits), Conclusions of Law, Opinion, and Order. 1


1) Randolph filed a complaint with the Agency’s Civil Rights Division on October 4, 2017, alleging that HMS discriminated against him based on his inquiry into his rights under wage and hour laws, and retaliated against him by terminating his employment. He later filed an amended complaint naming Dugger as an aider and abettor. 2 (Exs. A1, A13) 2) On March 30, 2018, the Agency’s Civil Rights Division issued a Notice of Substantial Evidence Determination (“SED”) in which it found substantial evidence of the following unlawful employment practices:

Termination of Randolph’s employment because he consulted an attorney about a wage claim in violation of ORS 652.355.

Termination of Randolph’s employment in retaliation for making a wage inquiry in violation of ORS 653.060.

Termination of Randolph’s employment in retaliation for reporting and opposing unlawful employment practices in violation of ORS 659A.199.

Dugger aided and abetted in the unlawful employment practices in violation of ORS 659A.030(1)(g).

(Ex. A14) 3) On September 10, 2018, the forum issued a Notice of Hearing to Respondents, the Agency, and Randolph stating the time and place of the hearing as January 15, 2019, beginning at 9:00 a.m., at the W. W. Gregg Hearing Room of the Oregon Bureau of Labor and Industries, located at 800 NE Oregon Street, 10th floor, Portland, Oregon. Together with the Notice of Hearing, the forum sent a copy of the Agency's Formal Charges, a document entitled “Summary of Contested Case Rights and Procedures” containing the information required by ORS 183.413, a document entitled “Servicemembers Civil Relief Act (SCRA) Notification,” a multi-language notice explaining the significance of the Notice of Hearing, and a copy of the forum’s contested case hearings rules, OAR 839-050-000 to 839-050-0445. (Ex. X2) 4) The Formal Charges alleged that HMS engaged in unlawful employment practices in violation of ORS 659A.199(1), OAR 839-010-0100(1), ORS 652.355(1)(a),(2), OAR 839-010-0100(4)(a), OAR 839-010-0100(4)(a) and ORS 659A.030(1)(g). Additionally, the Formal Charges alleged that Dugger unlawfully aided

1 The Ultimate Findings of Fact required by OAR 839-050-0370(1)(b)(B) are subsumed within the Findings of Fact – The Merits. 2 The amended complaint did not include the “Jr.” designation following Dugger’s name. However, there is no dispute that Dugger was the person identified as the aider and abettor.

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and abetted the unlawful employment practices in violation of ORS 659A.030(1)(g). The Formal Charges sought damages for physical, mental and emotional suffering in the amount of at least $5,000 and lost wages of at least $23,568. The Formal Charges also asked for an order declaring that Respondents engaged in unlawful practices and enjoining Respondents from violating laws pertaining to ORS 652.355 and ORS 659A.001 through ORS 659A.990. The Formal Charges stated that the forum’s order may include such other relief as appropriate to eliminate the effects of the unlawful practices found as to Randolph and others similarly situated. (Exs. X2b – X2h) 5) Respondents filed an answer to the Formal Charges on September 27, 2018, in which they denied that they had unlawfully discriminated against Randolph. (Ex. X3) 6) On December 12, 2018, the ALJ issued two interim orders. The first, entitled "Requirements for Filing Motions and Other Documents," explained the forum's filing requirements, including the method by which documents must be filed and the timeline for filing documents. The second order required case summaries to be filed no later than January 2, 2019, and set out the requirements for what each participant needed to include in their case summary. (Exs. X4, X5) 7) The Agency and Respondents filed case summaries on January 2, 2019. The Agency filed an addendum to its case summary on January 11, 2019. (Exs. X6, X8, X13) 8) The Agency filed Amended Formal Charges on January 3, 2019, to correct the spelling of Dugger’s last name and to reference ORS 652.355(2). (Ex. X9) 9) On January 2, 2019, the Agency filed an unopposed motion for protective order to protect the confidentiality of Oregon Employment Department records pursuant to ORS 657.665(1). The Agency submitted documents Bates numbered 00077 and 00078 for the ALJ’s in camera inspection with the motion. The ALJ reviewed the documents submitted by the Agency for in camera inspection and issued an interim order on January 4, 2019, ruling that the documents are confidential under ORS 657.665(1) and were protected from public disclosure. (Exs. X7, X11) 10) On January 3, 2019, the Agency filed a motion requesting that it be permitted to cross examine the individuals who signed declarations for Respondents that were filed with Respondents’ case summary. In an email dated January 8, 2019, Respondents’ counsel stated that Respondents agreed to stipulate to the Agency’s motion. The ALJ issued an interim order on January 9, 2019, granting the motion. (Exs. X10, X12) 11) Before the hearing began, the Agency objected to the presence of both Hamman and Dugger in the hearing room. The ALJ permitted Dugger to be present

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because he was a named party and permitted Hamman, a corporate officer of HMS, to be present as the corporate representative of HMS.2 (Hearing Record) 12) At the start of hearing, pursuant to ORS 183.415(7), the ALJ orally informed the participants of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing. (Hearing Record) 13) The hearing commenced on January 15, 2019, and concluded that same day. (Hearing Record) 14) On January 2, 2020, the ALJ issued a proposed order that notified the participants they were entitled to file exceptions to the proposed order within ten days of its issuance. After obtaining an extension of time to file exceptions, the Agency timely filed exceptions on February 6, 2020. Respondents did not file any exceptions.


1) HMS is an active Oregon corporation. Dugger and Hamann founded the business together. Dugger is the president and secretary of the corporation. Hamann is the shop foreman and general manager of operations. Dugger’s father, Robert Dugger, Sr., (a dentist) also has a business interest in HMS. Debbie Bakkensen was the office manager for Dugger, Sr.’s dental practice and provided bookkeeping services to HMS. (Testimony of Khoshnaw, Dugger, Bakkensen; Exs. X2b, X3,3 X9, A3) 2) HMS’s business primarily focused on repairing and maintaining Subaru cars. However, HMS had been looking to hire a fabricator to expand its services to perform metal fabrication work on race cars. (Testimony of Hamann) 3) HMS hired Randolph in December of 2014 to work as a mechanic and metal fabricator. Randolph was initially paid $20 per hour for fabrication work and $18 for technician work. Eventually, he earned $20 per hour for all work he performed, regardless of the type. (Testimony of Randolph, Dugger, Hamann; Exs. X2b, X3, X9) 4) During his employment, Randolph regularly missed work to meet with his attorney in Salem regarding a child custody dispute. Randolph often spoke to people at work about the difficulties of the custody case and the need to meet with his attorney. While at work, Randolph was often on the telephone talking to his attorney about the case. During this same period of time, Randolph became more difficult to work with because of his attitude, and other employees avoided being near him. On one occasion, Randolph had an issue with a co-worker, Notz, and, in front of a customer, Randolph told Notz, “you don’t have to be a bitch about it.” Notz told Dugger about this incident. Hamann received complaints from other employees about Randolph’s

2 See OAR 839-050-0150(3)(b). 3 Factual matters alleged in a charging document that are not denied in the answer are deemed admitted by the answering party. OAR 839-050-0130(3); In the Matter of Banyan Built Constr. Inc., 36 BOLI 271, 279 (2018).

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attitude. When Hamann spoke to him about his attitude, Randolph acknowledged that he could sometimes be “rough around the edges.” Hamann arranged for Randolph to work in a separate area away from the other employees. Hamann also spoke to Dugger about Randolph’s attitude. About a month prior to Randolph’s termination, Hamann recommended that Dugger terminate Randolph. However, Dugger decided to give Randolph a second chance. HMS and Dugger did not discipline Randolph for any performance issues prior to his termination. (Testimony of Randolph, Dugger, Hamann, Notz) 5) A check HMS issued to Randolph on April 15, 2015, was returned due to insufficient funds in HMS’s bank account. HMS replaced this returned check on April 27, 2015. (Testimony of Bakkensen; Exs. X3, R6) 6) Additionally, a check HMS issued to Randolph on June 9, 2015, was returned due to insufficient funds in HMS’s bank account. HMS replaced this returned check on June 12, 2015. (Testimony of Bakkensen; Exs. X3, R6) 7) On or before September 30, 2016, Randolph asked for an advance on his paycheck to help him pay his rent.4 HMS agreed to Randolph’s request and provided him with a check (No. 1646) in the amount of $250. Randolph deposited the $250 advance check in his Wells Fargo bank account on that same date. (Testimony of Randolph; Exs. A16, R1) 8) On October 5, 2016, Randolph received a message from his bank titled “Deposit Hold Alert.” The message stated that the bank had received the $250 deposit on September 30, 2016, and credited it to Randolph’s account, but that “[s]ome or all of these funds will not be available for your immediate use.” The message further stated that the “[a]mount [d]elayed” was $250 due to “Insufficient Funds At Inquiry Time.”5 The bank notified Randolph that the funds would be available on October 12, 2016. The message also stated that Randolph should not make withdrawals or write checks against the deposit until he “verified the funds are available” and notified him that he could determine the availability of the funds “by checking the Available Balance for this

4 The forum is unable to determine the regular pay date schedule for Randolph’s wages. Dugger testified that Randolph was initially paid on a weekly basis, but towards of the end of his employment HMS switched to “bi-weekly” pay periods. The record reflects that wages were paid to Randolph on an almost weekly basis throughout his employment. (Testimony of Bakkensen; Ex. R12) All parties agree that the September 30, 2016, paycheck was an early advance requested by Randolph to pay his rent, and was not a regularly scheduled pay date. October 5, 2016, was the actual pay date. 5 In Respondents’ initial written response to Randolph’s BOLI complaint, Bakkensen stated that Check 1646 had been returned due to insufficient funds. (Ex. A6) She credibly testified at hearing that she made that statement in the position statement because she “took it as word” that the check had bounced. However, after Bakkensen had the opportunity to obtain and review HMS’s bank account records, she discovered that HMS actually did have sufficient funds in its account to honor the check. (Testimony of Bakkensen; Ex. R12) She reviewed the bank balance from September 30, 2016, until October 10, 2016, and there was no reason for a $250 check to be returned due to insufficient funds. The balance in HMS’s bank account was $7,300.80 on September 30, 2016, the date check 1646 was issued, and $11,508.33 on October 5, 2016, the date check 1646 cleared. (Ex. R12) The record is unclear as to why Randolph’s bank issued the insufficient funds notice.

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account.” Finally, the message stated that if “a check you deposited is returned, we will mail a notice to you the same day and deduct the amount of the check from your account. A deposit item return fee will also be deducted from your account for each check returned.” After receiving this message, Randolph believed he had a negative balance in his bank account. (Testimony of Randolph; Ex. A16) 9) On October 5, 2016, at 11:11 a.m., Randolph sent the following text message to Dugger: “Hey, I just got off the phone with my attorney. I also need to stop at the * * * police department to take care of my ticking [sic]. I will be there after that[.]” Because of the reference to the police, Dugger assumed that “ticking” meant a “ticket” from the police, and that the mention of an attorney pertained to that matter. (Testimony of Dugger; Ex. R4) 10) Immediately after the text about the police, Randolph sent a text asking Dugger to call him “ASAP.” Dugger asked, “What’s up?” and Randolph answered, “Your check you wrote me Friday is bouncing[.]” Dugger responded, “[O]k I’ll give you a new one I had a prob[lem] with my account last week it’s good now[.]” Dugger was not aware of his bank balance at the time he sent this text, but assumed the problem was on “his end” because the balance in HMS’s business account fluctuated daily. (Testimony of Dugger; Ex. R4) 11) Randolph and Dugger then exchanged the following messages:

Randolph: Dugger: Randolph: Dugger: Randolph: Dugger:

“I need everything in cash from now on[.]” “[S]orry can’t do cash[.]” “Then I’m fucked for today. Put my hole [sic] pay check in my box. Tonight, no later[.]” “You know you can take the check to chase [bank] and cash it[.]” “They charge me for that. 7 plus bones [be]cause I bank with [W]ells [F]argo.” “[L]et me know what the fees are. [N]o need to contact my dad[.]”

Dugger attempted to text his father and alert him that Randolph might be coming to his father’s office, but accidentally sent the following text to Randolph instead of his father: “Byron [Randolph] might be on his way there he is going crazy[.]” Randolph responded, “Wrong number? I’m not going crazy, I expect more from you[.]” (Testimony of Randolph, Dugger; Exs. A9, R4). 12) On October 5, 2016, HMS prepared a check to replace the September 30 advance check in the amount of $537.50, which represented:

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Wages Randolph earned from September 15-30, 2016, plus

$35 (amount HMS believed Randolph would be charged by his bank for a returned check), minus

Deduction of $100 (to reimburse HMS for amounts paid on Randolph’s behalf for body work on a car)6

At 2:25 p.m. on October 5, 2016, Dugger sent Randolph a text message informing him that he had a replacement check for him. Dugger sent Randolph another text at 2:42 p.m. which stated, “[C]heck is in your box. Any fees that need to be covered just print out the charges and I will cover them.” (Testimony of Dugger, Bakkensen; Exs. A9, R2, R4, R12) 13) On October 5, 2016, Randolph telephoned an attorney because he thought it was illegal for an employer to issue paychecks that bounced. He met with the attorney on October 6, 2016. (Testimony of Randolph) 14) Randolph presented the replacement check to HMS’s bank (Chase) and received cash in exchange for the check on October 5, 2016, the same day that Randolph informed Dugger about the notice of insufficient funds. The original payroll advance check from September 30, 2016, also cleared HMS’s bank on October 5, 2016. (Testimony of Randolph, Bakkensen; Ex. R12) 15) In the late afternoon of October 5, 2016, Randolph arrived at the worksite. He had not been at work that day, although Hamann had been expecting him to perform a job for a customer. Randolph was upset7 and told Notz that HMS had issued a paycheck to him that bounced. Randolph began speaking to Dugger in a loud voice. Dugger invited him into his office upstairs so that they could talk privately away from other employees and customers, but Randolph would not agree to go upstairs. Randolph clapped loudly towards Dugger and made comments such as “bravo” and “amazing ownership” in a sarcastic tone. The conversation was loud enough to be overheard by Hamann, Notz and customers of HMS. Hamann asked Randolph what was going on, and asked him to stay and perform work for a customer who was waiting. Randolph told Hamann that he was sorry and that he was “f-ing done with this place.” Randolph slammed his toolbox shut and left. It was unclear to Dugger and Hamann whether Randolph intended to keep working at HMS. (Testimony of Randolph, Dugger, Hamann, Notz; Ex. A7) 16) After a customer observed Randolph speaking loudly and clapping at Dugger, the customer told Hamann that he wanted to leave. Randolph’s behavior embarrassed Dugger. He became concerned that customers who overheard Randolph might post negative reviews online, causing HMS to lose work. Dugger spoke to his business partners, and decided that he had no choice but to terminate Randolph for

6 This deduction was not authorized by Randolph in writing as required by ORS 652.610(3)(b). However, there is no allegation in the Amended Formal Charges regarding this deduction. 7 It is unclear if the interactions described in this paragraph occurred before or after Randolph received cash from Chase Bank for the replacement check.

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yelling at Dugger in front of customers. Dugger decided to communicate his decision to Randolph in person. (Testimony of Hamann; Dugger) 17) The following day (October 6, 2016), Dugger learned that both the original advance check and the replacement check had both been processed by HMS’s bank and that money had been deducted from HMS’s account for both checks. Randolph was scheduled to perform work for a customer that day. He did not show up to work and did not tell Dugger in advance that he would not be there. Dugger texted Randolph at 12:15 p.m., saying that “my account is showing that check is going through that you said bounced?” and pointed out that Randolph had received an extra check for $250. Dugger then texted “and you are a no show today?” (Testimony of Dugger; Exs. A3, A8, A9) 18) Approximately four and a half hours later, at 4:59 p.m., Randolph responded to Dugger’s text, stating:

“That check is being held [until] 10/12, if it goes through [I] will write you a check for reimbursement. I’m not trying to take money from you unjustly. “I can’t trust you anymore to keep me fully employed, with full time hours. After you telling me to do whatever [I] feel necessary yesterday, [I] don’t feel respected anymore. “I can’t handle you calling me crazy because you don’t have money in your account when [I] simpl[y] ask for a[n] advance and you say you want to help me out. “It is apparent you don’t want to keep me busy when you send me text messages saying that you where [sic] slacking or ordering parts, but you will have work soon. Of course [you’re] on vacation during this time and I can’t make money. “I need a full time job, one that keeps me busy full time. That’s why [I] work, to make a living. I’m looking for new full time employment, in the mean time [sic] I will finish projects for you part time if you like[.]”

Dugger asked, “Did you just quit?” Randolph replied, “No, [I] will work part time while looking for something real.” Dugger interpreted this statement as an insult to HMS. (Testimony of Dugger; Ex. R4) 19) Dugger still intended to terminate Randolph, but wanted to deliver the news in person. At 5:06 p.m., he responded to Randolph’s text, stating that they could “talk tomorrow about that, what time would you like to talk[?]” Randolph replied, “Not sure, [I] have a lot of thing[s] to take care of now. Spending lots of time on the phone[.]” Dugger assumed that the reference to the phone pertained to calls involving Randolph’s custody dispute. Dugger texted, “[O]kay then we can do it over the phone.” Randolph replied, “After [I] talk with my attorney. I will also be recording any conversation we

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have[.]” Dugger was confused as to why Randolph mentioned an attorney. Randolph had often mentioned speaking to his child custody attorney and Dugger did not understand how that pertained to their conversation. Dugger responded to Randolph, stating, “[Y]our attorney? [P]lease explain.” At 5:12 p.m., Randolph replied, “You said do whatever [I] felt necessary. So [I] am.” At 5:12 p.m.,8 Dugger texted, “[Y]our [sic] fired[.] [W]e can set a time up when you would like to pick up your tool[s].” Although Dugger wanted to terminate Randolph in person, he felt that he had to communicate the news by text message because Randolph would not come in to work or talk to Dugger by telephone. (Testimony of Dugger; Ex. R4) 20) Randolph’s testimony and prior statements were often inconsistent with other credible evidence or an exaggeration, suggesting that he was not able to provide an accurate account of the events. Some examples of the inconsistences and exaggerations are as follows:

In the questionnaire Randolph submitted to the Civil Rights Division, he stated that HMS had “bounced payroll multiple times” and he told the investigator that the check issued on September 30, 2016, was the “4th check that bounced.” He also testified that HMS bounced payroll checks on multiple occasions. However, at the time he made those statements, he was aware that the September 30 advance check had actually been honored by HMS’s bank and did not bounce, and that HMS had only bounced a total of two checks, not four.

Randolph asserted that HMS paid him in cash when checks bounced, but there was no evidence to support this statement.

Randolph testified that he did not “yell” at Dugger on the afternoon of October 5, 2016. However, Randolph admitted that he raised his voice because the workplace is loud. Additionally, Hamann and Notz heard Dugger yelling, and a customer told Hamann that he heard Dugger yelling. Moreover, since Randolph was downstairs and communicating with Dugger upstairs, it seems reasonable that Dugger, Hamann and Notz considered Randolph to be “yelling.”

Randolph refused to accept Dugger’s invitation to talk privately in Dugger’s office about his concerns.

In text messages Randolph sent to Dugger on October 6, 2016, Randolph mentioned being upset about HMS not providing him with sufficient work and wanting to work for HMS on a part time basis while he looked for a “real” job. These text messages conflicted with his testimony that he planned to work the same number of hours after October 6, 2016, as he worked prior to his termination.

Due to the inconsistencies between Randolph’s testimony and other credible evidence in the record, Randolph’s testimony was not credited when it conflicted with other

8 Dugger testified that he thought Randolph’s text of 5:12 p.m. may have “crossed” with the text he sent at 5:12 p.m. firing Randolph, and that he may not have seen Randolph’s text before sending the notification that Randolph was fired. Because Dugger was not certain and the record does not conclusively demonstrate when the text appeared on Dugger’s cell phone, the forum has made no determination as to whether Dugger saw Randolph’s 5:12 p.m. text prior to sending his own text to Randolph at 5:12 p.m.

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credible evidence. (Testimony of Randolph; Exs. A3, A5, R4) 21) As an owner of the business, Dugger had an inherent motivation to protect the business interests. However, Dugger’s statements in his testimony and throughout the investigation were generally consistent with other credible evidence. Moreover, when Randolph contacted Dugger on October 5 and notified him that a check had allegedly bounced, Dugger gave Randolph the benefit of the doubt and assumed the business was responsible for the notice Randolph received from his bank. Dugger did not argue with Randolph or delay replacing the check, but instead issued a replacement check within hours. The forum considered these factors when evaluating the truthfulness of Dugger’s testimony regarding the reasons for terminating Dugger. (Testimony of Dugger, Bakkensen) 22) Hamann also had a financial interest in HMS, providing him with an inherent bias. However, he was not impeached with any credible evidence and the forum has credited his testimony in its entirety. (Testimony of Hamann) 23) Khoshnaw, Owen, Notz and Bakkensen were all credible witnesses. (Testimony of Khoshnaw, Owen, Notz, Bakkensen)

CONCLUSIONS OF LAW

1) At all times material herein, HMS was an employer as defined in ORS 659A.001(4) and employed Randolph. 2) The actions, statements, and motivations of Dugger are properly imputed to HMS. In the Matter of Lioness Holdings, LLC dba Tan Republic and Peter Lamka, 36 BOLI 229, 264 (2018). 3) Randolph, acting in good faith and while employed by HMS, reported information that he believed was evidence of a violation of a state law. 4) Randolph discussed, inquired and consulted an attorney about a wage claim. 5) Respondents did not violate ORS 659A.199(1), OAR 839-010-0100(1), ORS 6552.355(1)(a),(2), OAR 839-010-0100(4)(a) or ORS 659A.030(1)(g) by terminating Randolph’s employment. 6) The Commissioner of the Bureau of Labor and Industries has jurisdiction of the persons and of the subject matter herein and the authority to eliminate the effects of any unlawful practices found. ORS 659A.800 to 659A.865. 7) Under ORS 659A.850(3), the Commissioner of the Bureau of Labor and Industries shall issue an order dismissing the charges against any respondent not found to have engaged in any unlawful practice charged.

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OPINION

The Amended Formal Charges allege that HMS engaged in the following unlawful employment practices:

Retaliated against Randolph by terminating his employment because Randolph made a good faith report of a violation of rule or law in violation of ORS 659A.199 and OAR 839-010-0100(1).

Unlawfully discharged or discriminated against Randolph because Randolph made a wage claim or discussed, inquired about or consulted an attorney or agency about a wage claim in violation of ORS 652.355(1)(a), (2) and OAR 839-010-0100(4)(a).

Additionally, the Agency alleges that Dugger aided and abetted the unlawful employment actions in violation of ORS 659A.030(1)(g). The Agency seeks lost wages and emotional distress damages for Randolph. The Agency has the burden of proof to establish the causal link in a civil rights case and the standard of proof is a preponderance of the evidence. In the Matter of Kenneth Wallstrom, 32 BOLI 63, 82-83 (2012). “Preponderance of evidence means ‘more probably true than false.’” In the Matter of Sunnyside Inn, 11 BOLI 151, 165 (1993) (quoting from State v. Jackson, 313 Or 189, 832 P2d 443 (1992) and Cook v. Marshall, 214 Or 513, 527, 330 P2d 1026 (1958). In viewing the evidence presented at hearing, it appears that the “Insufficient Funds” notice Randolph received from his bank on October 5, 2016, led to a series of misunderstandings between the parties, in particular when Dugger learned that HMS actually had sufficient funds in its account and the advance check was honored by the bank.

LIABILITY OF HMS FOR VIOLATION OF ORS 659A.199 The Agency alleges that HMS violated ORS 659A.199 & OAR 839-010-0100(1) by terminating Randolph because he made a good faith report of information he believed to be evidence of a violation of state or federal law. ORS 659A.199(1) states, in pertinent part:

It is an unlawful employment practice for an employer to discharge * * * an employee * * * 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.

OAR 839-010-0100(1) interprets ORS 659A.199 as:

(1) ORS 659A.199 prohibits any employer with one or more employees in

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Oregon from discharging * * * an employee * * * for the reason that the employee has in good faith reported information to anyone that the employee believes is evidence of a violation of any state or federal law, rule or regulation.

The “good faith” requirement in ORS 659A.199 is met when the whistleblower has a reasonable belief that the information reported has occurred and that the information, if proven, constitutes evidence of a violation of a state or federal law, rule or regulation. Vision International Petroleum LLC & Hai Chheng Gov, 37 BOLI 187, __ (2019). The Agency's prima facie case consists of the following elements: (1) HMS was an employer as defined by statute; (2) HMS employed Randolph; (3) Randolph, in good faith, reported information to someone that he believed was evidence of a violation of a state rule; (4) HMS discharged Randolph; (5) HMS discharged Randolph because of his report(s). Oregon Truck Painting, LLC, On Time Painting, Inc., Richard Bowman, and Amanda M. Marin, 37 BOLI 87, _ (2018). Elements 1, 2 and 4 are not in dispute. Accordingly, the forum must determine whether Randolph made a good faith report of a violation and, if so, whether HMS discharged Randolph because of his reports. Report of a Legal Violation

Under ORS 659A.199, an employee “report[s]” information when the employee communicates information to “anyone” that the employee believes is evidence of a violation of state law. The Agency asserts that Randolph reported a violation to Dugger and his attorney. In response, HMS argues that HMS’s September 30 check did not bounce and that on October 6, 2016, Randolph knew that he had actually been overpaid. The forum first examines Randolph’s belief that HMS violated state law9 with respect to the September 30 advance check. Notably, the check was not a regular paycheck, but rather was an advance issued at Randolph’s request. Additionally, although Randolph received an insufficient funds notice from his bank, HMS had sufficient funds in its account at all relevant times and the advance check was honored by HMS’s bank on October 5, 2016. Accordingly, the forum is unable to conclude that the September 30 check was issued in violation of state law. Nevertheless, the Agency does not need to prove that an actual violation occurred, only that Randolph had a good faith belief that there had been a violation of state or federal law. The forum concludes that the following constituted “reports” for purposes of ORS 659A.199:

9 In the section of the Amended Formal Charges discussing this alleged violation, there is no mention of which state or federal law was arguably violated. However, the second alleged violation provides notification that the alleged legal violation was a “wage claim” under state law. Accordingly, the forum finds that the charging document provides sufficient notice of the statutes and rules involved pursuant to ORS 183.415(3)(c).

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Randolph’s text messages to Dugger on October 5, 2016, telling him that the check issued on September 30, 2016, bounced.

Randolph’s inquiries with his attorney on October 5 and 6, 2016, regarding whether he had a wage claim.

Respondents argue that Dugger did not have a good faith belief because the advance check cleared and did not actually bounce. However, HMS had previously issued two paychecks in 2015 that were returned due to insufficient funds. After Randolph received the notice form his bank on October 5, 2016, it was reasonable for him to conclude that another payroll check was being returned due to insufficient funds. Respondents also argue that Randolph did not have a good faith belief of a violation on October 6 because HMS had issued a replacement check to him and, because the September 30 check did not actually bounce, Randolph had actually been overpaid. However, although Randolph was aware he had been fully compensated with a replacement check, he still had a good faith belief that his employer may have done something unlawful when he contacted his attorney. Accordingly, the forum finds that Element 3 (good faith report) was satisfied. Causation – Discharge Because of Reports

To show causation, the Agency “must prove that [a respondent’s] unlawful motive was a substantial factor in his termination, or, in other words, that [Randolph] would have been treated differently in the absence of the unlawful motive.” Harper v. Mt. Hood Cmty. Coll., 283 Or App 207, 214, 388 P3d 1170, 1174 (2016) (citing LaCasse v. Owen, 278 Or App. 24, 32–33, 373 P3d 1178 (2016)). See also Ossanna v. Nike, Inc., 365 Or 196, 214, 445 P3d 281, 292 (2019) (recognizing that the causation standard for assessing violations of ORS 659A.199(1) is “the substantial-factor standard of causation”). See also Atlas Bolt & Screw Company LLC, 37 BOLI _, _ (2018) (using the “substantial factor” analysis when examining allegations of retaliation). The following evidence in the record suggests a possible unlawful motive caused the termination:

During the text message exchanges on October 5, Dugger referred to Randolph as “crazy.”

Dugger’s text terminating Randolph at 5:12 p.m. was sent immediately after Randolph texted that he was speaking to an attorney.

Randolph was scheduled to do a fabrication job on October 6, 2016.

In spite of the evidence of Randolph’s difficult attitude and behavior, Dugger did not terminate him until after he sent a text about talking to an attorney.

In contrast, the following evidence tends to show a lack of unlawful motive:

On October 5, 2016, when Randolph told Dugger that a check had bounced, Dugger immediately issued a replacement check.

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On the afternoon of October 5, 2016, and on previous occasions, Randolph had been disruptive in the workplace.

On October 6, 2016, Dugger understood that the September 30 check did not bounce and that Randolph had been overpaid.

Randolph did not show up to work on October 6, 2016.

In his text messages to Dugger on October 6, 2016, Randolph said he was not receiving enough work and intended to look for employment elsewhere.

In response to Dugger’s October 6 text saying “we can talk tomorrow about that. What time would you like to talk,” Randolph did not offer a time. Instead, he responded, “Not sure, I have a lot of thing[s] to take care of now. Spending lots of time on the phone.”

Throughout his employment, Randolph missed work to meet with an attorney about his child custody case. This supports Dugger’s testimony that he did not consider Randolph’s reference to an “attorney” to be in regards to a wage claim.

Dugger planned to terminate Randolph in person on October 6, but Randolph would not come in to work.

Given all of this information, Randolph seemed to be conveying an intent to end his employment or, at the very least, to reduce his work hours to when he saw fit. Furthermore, he was not cooperative with Dugger’s request to meet with him to discuss the arrangement. Randolph’s text messages support Respondents’ contention that Dugger was frustrated with Randolph’s uncooperative behavior. The Agency asks the forum to consider two text messages in isolation: Randolph’s text about an attorney and Dugger’s text informing Randolph that he was “fired.” However, there is additional evidence that supports Respondents’ contention that there were other reasons for terminating Randolph for his disruptive behavior in the workplace. Some of the evidence is corroborated by the text messages and by Randolph’s own testimony. Additionally, the forum found Dugger, Hamann and Notz to be credible when they described Randolph’s behavior in the workplace. Taking all of the above factors into consideration, the forum concludes that the Agency was unable to prove by a preponderance of the evidence that Dugger’s reports of a violation of state law were a substantial factor in Dugger’s decision to terminate him.

LIABILITY OF DUGGER FOR AIDING AND ABETTING ORS 659A.030(1)(g) provides that it is an unlawful employment practice “[f]or any person, whether an employer or employee, to aid, abet, incite, compel or coerce the doing of any of the acts of this chapter or to attempt to do so.” A corporate officer and owner who commits acts rendering the corporation liable for an unlawful employment practice may be found to have aided and abetted the corporation's unlawful employment practice. In the Matter of Bravo Event Services, Inc. and Dan Kor, 36 BOLI 250, 268 (2018). As set forth above, Dugger was the president and secretary of HMS, an Oregon corporation. Accordingly, if the termination was unlawful, he would be an aider and

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abettor in violation of ORS 659A.030(1)(g). Because the termination was not unlawful, Dugger is not liable as an aider and abettor.

LIABILITY OF HMS FOR VIOLATION OF ORS 652.355(1)(A) ORS 652.355 provides, in pertinent part:

“(1) An employer may not discharge or in any other manner discriminate against an employee because: “(a) The employee has made a wage claim or discussed, inquired about or consulted an attorney or agency about a wage claim.”

OAR 839-010-0100(4) interprets this statute as follows:

“(4) ORS 652.355 prohibits any employer with one or more employees in Oregon from discriminating or retaliating against a current, former, or any other employer's employee because: “(a) The employee has made a wage claim or has discussed with anyone, inquired of anyone, or consulted an attorney or agency about a wage claim[.]”

The prima facie case for this alleged violation is similar to that of ORS 659A.199(1) analyzed above, except that for Element 3, the Agency must prove that Randolph “made a wage claim or has discussed with anyone, inquired of anyone, or consulted an attorney or agency about a wage claim.” The forum concludes that this element is satisfied. However, as with the previous alleged violation, the Agency did not establish causation and did not prove that Randolph was terminated because he “made a wage claim or has discussed with anyone, inquired of anyone, or consulted an attorney or agency about a wage claim.”


The Agency filed 42 pages of exceptions to the Proposed Order, which are addressed below. In weighing the evidence in this case, it is important to note that the Agency had the burden of proof to establish that violations occurred. If the evidence on a required element is in conflict, then the Agency did not satisfy that burden.

EXCEPTIONS TO PROPOSED FINDINGS OF FACT Exception 1 In Exception 1, the Agency objects to the forum’s conclusion that “Dugger’s statements in his testimony and throughout the investigation were generally consistent with other credible evidence.” “[A]n ALJ’s credibility findings are accorded substantial

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deference and absent convincing reasons for rejecting those findings, they are not disturbed.” Gordy’s Truck Stop, LLC., 28 BOLI 200, 216 (2007)). See also Wallstrom, Kenneth, 32 BOLI 63, 92-93 (2012) (“exceptions to the ALJ’s credibility findings are denied because those findings are supported by substantial evidence in the record”). In the exception, the Agency asserts that Dugger gave inconsistent reasons for terminating Randolph. The Agency first contends that in the position statement submitted to BOLI on October 18, 2017, Dugger said that he terminated Randolph because he did not show up for work. Actually, the statement was much more detailed and stated as follows:

“Owner Robbie Dugger states the follow[ing] for the reason [Randolph’s] employment with [HMS] was terminated: Over the last few months of his employment with [HMS], [Randolph] would make excuses and reasons to leave or not come into work. He also was rounding up his hours per job. If the job paid 2.5 hours, he would put 3. On his last day of employment, he got angry and started shouting up the stairs to my office where I was standing. I asked him several times to come up to my office if he wants to talk, and [I] told him that yelling was not okay with multiple employees and customers around the business. I asked him to stop and please come up to my office and I turned and walked into my office. At that point[,] he started clapping very loud for about a minute or two while making negative comments. Then he left work in the middle of a job and then failed to show up to work the following day. When he did not show up to work on October 6[,] 2016[,] he was then terminated from employment.”

(Ex. A6) The Agency next contends that Dugger “added a new reason for terminating Randolph in his declaration,” dated April 24, 2018, when he stated that, among other things, Dugger terminated Randolph for not “coming into the shop to discuss his status.” Again, the Agency neglected to include the entirety of the paragraph, which read:

“Horizontal did not retaliate against Mr. Randolph for making a wage inquiry, consulting with an attorney, or reporting or opposing employment practices. Rather, he was terminated for his bad attitude and particularly for the incident on October 5 when he yelled at me in front of employees and customers, refused to come upstairs to talk to me in my office with the door shut, and for not showing up for work, or coming into the shop to discuss his status.”

(Ex. R8) This paragraph contains generally the same content as the statement in the position statement cited above. The forum interprets the reference to not “coming into the shop” to simply further elaborate on the phrase “not showing up to work.” The Agency also asserts that Dugger’s testimony about text messages that were both sent at 5:12 p.m. possibly “crossing” “is inconsistent with the documentary

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evidence in the record showing the sequence of the texts and also inconsistent with the logical plain language of the text messages.” The Agency bases the bulk of its case on two text messages that were both sent at 5:12 p.m. In the text chain, Dugger’s 5:12 p.m. text terminating Randolph comes immediately after Randolph’s 5:12 p.m. text stating: “You said do whatever [I] felt necessary. So [I] am.” It is entirely possible that Dugger typed his 5:12 p.m. text and hit the send button before receiving Randolph’s text. Accordingly, the forum does not find Dugger’s testimony about two text messages both sent at 5:12 p.m. potentially “crossing” to be inconsistent with the sequence of the text messages. Because the Agency has not demonstrated “convincing reasons for rejecting” the ALJ’s credibility findings, Exception 1 is OVERRULED. Exception 2

In Exception 2, the Agency also asserts that Dugger provided inconsistent reasons for terminating Randolph. As stated above, the forum does not find there to be relevant or significant differences in the statements. Accordingly, Exception 2 is OVERRULED. Exception 3

In Exception 3, the Agency asks the forum to add a finding of fact “stating that Respondents withheld relevant text messages exchanged between Dugger and Randolph on October 6, 2016, including Dugger’s text at 5:12 [p.m.] firing Randolph, during the course of the investigation conducted by the * * * Civil Rights Division.” Based on arguments made at hearing, the forum understands the Agency’s use of the term “withheld” to suggest that Respondents purposely failed to turn over all of the text messages requested by BOLI’s investigators because Respondents were trying to conceal or hide the messages. However, the forum is unable to draw that conclusion. The Agency correctly points out that Respondents did not provide all of the text messages exchanged between Dugger and Randolph to BOLI’s investigators. Bakkensen testified that she gathered the information requested by BOLI and asked Dugger to provide her with copies of the text messages he exchanged with Randolph. Dugger testified that he used the “screenshot” function on his cell phone to copy the text messages and did not know why all of the messages were not included. Dugger was not necessarily meticulous in making sure to capture all of the messages in the conversation. However, in the absence of other supporting evidence, the forum is unable to conclude that Dugger purposely withheld messages from the investigation. The forum notes that Ex. R4 offered by Respondents at hearing appears to be a more thorough capturing of the text messages exchanged. Accordingly, Exception 3 is OVERRULED. Exception 4 Exception 4 pertains to the text that Randolph sent to Dugger at 5:12 p.m.,

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stating: “you said do whatever I felt necessary. So I am.” With this exception, the Agency requests that the forum add a finding of fact “that states that [Randolph]’s reference to ‘do whatever I felt necessary’ referred to [Randolph’s] understanding that [Dugger] told him to do whatever was necessary about Dugger’s issuance of checks with insufficient funds.” The Agency’s primary reason for adding this fact is that it would be consistent with Conclusion of Law, #4, which states, “Randolph discussed, inquired and consulted an attorney about a wage claim.” The forum declines to add this finding of fact. There is already evidence in the record to support Conclusion of Law, #4. See Finding of Facts – The Merits, ##9-11, 13. Additionally, there is conflicting evidence in the record as to what “do whatever [I] felt necessary” means. Randolph asserted that it referred to the check being returned, and Dugger testified that he did not know what Randolph meant in the text. Given the vagueness of the phrase and, as previously stated, that Randolph often referred to contacting an attorney for child custody and other matters, the forum finds that the Agency did not satisfy its burden in proving that an additional finding of fact should be added. Exception 5 With Exception 5, the Agency requests that a finding of fact be added, which states “that there is no evidence in the record showing that Respondents ever disciplined [Randolph] for missing work, rounding up his hours, or for his attitude at work during this employment with Respondents.” However, Finding of Fact – The Merits, #4 already addresses this issue, reading, “HMS did not discipline Randolph for any performance issues prior to his termination.” Exception 5 is GRANTED, in part, to include a reference to “Dugger” after HMS in Finding of Fact, #4, but is otherwise OVERRULED. Exception 6 In Exception 6, the Agency requests that the forum remove the following sentence from Finding of Fact – The Merits, # 16: “Dugger spoke to his business partners, and decided that he had no choice but to terminate Randolph for yelling at Dugger in front of customers.” The Agency contends that this statement “is inconsistent with the original reason Respondents provided for the termination of [Randolph] in the position statement[,] dated October 18, 2017. As previously stated when discussing Exception 1, Respondents did reference the October 5 yelling incident when explaining the reasons for termination. See Ex. A6, p. 2. Accordingly, Exception 5 is OVERRULED. Exception 7 Exception 7 asks the forum to replace the citations to exhibits in Proposed Finding of Fact – The Merits, # 18 with a reference to Ex. R4 instead. The forum agrees that Ex. R4 is the exhibit that appears to contain the most complete copies of the text messages at issue. Accordingly, Paragraph 18 has been amended to cite to that exhibit and Exception 7 is GRANTED.

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Exception 8 In Exception 8, the Agency objects to the portion of Finding of Fact - The Merits, # 9, which states: “Dugger still intended to terminate Randolph, but wanted to deliver the news in person.” The Agency asserts that “Dugger’s testimony on this issue should not be found as credible” because it conflicts with Respondents’ position statement provided to BOLI. As explained above, the forum disagrees. The position statement includes reference to the yelling incident of October 5 as a reason for the termination. Moreover, Dugger’s testimony is consistent with Hamann’s credible testimony on this same topic. Accordingly, Exception 8 is OVERRULED. Exception 9

Exception 9 requests that the forum remove the citation to Ex. A9 from Finding of Fact – the Merits, # 19. The forum agrees that Ex. R4 contains the most complete recitation of the text messages between Dugger and Randolph. Accordingly, Exception 9 is GRANTED, and the reference to Ex. A9 is removed as reflected in Finding of Fact- The Merits, #19. Exception 10

In Exception 10, the Agency takes exception with Proposed Finding of Fact – The Merits, # 19 at footnote 9, which states that no determination was made regarding whether the text messages sent at 5:12 p.m. “crossed” and asks that the forum find that the texts at 5:11 p.m. and 5:12 p.m. be “determined to be the true sequence of texts.” The forum notes that the footnote does not address the order in which text messages were exchanged, but rather whether Dugger actually saw the text Randolph sent at 5:12 p.m. prior to the text Dugger sent at 5:12 p.m. telling Randolph that he was fired. Exception 10 is GRANTED, in part, to clarify that it is meant to address whether Dugger saw Randolph’s text before sending his own text, and is otherwise OVERRULED. Exception 11

With Exception 11, the Agency disagrees with the portion of Proposed Finding of Fact – The Merits, # 8 at footnote 6, which states: “HMS actually did have sufficient funds in its account to honor the check.” The Agency requests that the sentence be amended to reflect that HMS did not have sufficient funds “at all times between September 30, 2016, and October 5, 2016.” The forum disagrees with the accuracy of the Agency’s requested language, but agrees that the footnote should be supplemented to include additional evidence in the record. Accordingly, Exception 11 is GRANTED, in part, as reflected in footnote 6 and is otherwise OVERRULED. Exception 12

In Exception 12, the Agency takes exception to the fifth bullet point in Proposed Finding of Fact – The Merits, # 20, which provided examples of inconsistencies and

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exaggerations in Randolph’s testimony that were considered when assessing his credibility. The section objected to by the Agency reads:

“In text messages Randolph sent to Dugger on October 6, 2016, Randolph mentioned being upset about HMS not providing him with sufficient work and wanting to work for HMS on a part time basis while he looked for a ‘real’ job. These text messages conflicted with his testimony that he planned to work the same number of hours after October 6, 2016, as he worked prior to his termination.”

The Agency points to evidence in the record that Randolph had worked part-time hours in his last weeks of employment and, thus, Randolph’s testimony that he would work a part- time schedule was consistent with that. However, when testifying about potential lost wages, the amount Randolph sought was dependent upon him working a significantly higher amount of hours than 15 hours per week. See Ex. 15, p. 2.10 Accordingly, Exception 12 is OVERRULED. Exception 13

In Exception 13, the Agency takes exception to a portion of Proposed Finding of Fact, # 20. Paragraph 20 provided examples of inconsistencies and exaggerations in Randolph’s testimony that were considered when assessing his credibility. The full section referenced by the Agency is reprinted below, with the specific language the Agency objects to in italics and underlined:

“In the questionnaire Randolph submitted to the Civil Rights Division, he stated that HMS had “bounced payroll multiple times” and he told the investigator that the check issued on September 30, 2016, was the “4th check that bounced.” He also testified that HMS bounced payroll checks on multiple occasions. However, at the time he made those statements, he was aware that the September 30 advance check had actually been honored by HMS’s bank and did not bounce, and that HMS had only bounced a total of two checks, not four.”

The Agency argues that it is irrelevant that the check eventually cleared the bank because Randolph had received a notice from his bank that the check was being held due to insufficient funds. The forum disagrees and finds it relevant when assessing Randolph’s credibility that he told BOLI’s investigator and testified under oath at hearing that the September 30 check had bounced when, at the time he made those statements, he knew that it had not.11 Therefore, Exception 13 is OVERRULED.

10 Since Ex. 15 is subject to a protective order, the forum has not included the exact figures referenced in the exhibit. 11 As previously stated, HMS’s bank account had sufficient funds when the check was issued. It is not clear why Randolph’s bank issued an insufficient funds notice and the forum declines to speculate as to why the bank issued the notice.

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EXCEPTIONS TO PROPOSED OPINION Exception 14 Exception 14 states that the Agency takes exception to the Proposed Opinion at page 19, lines 11-16. That section of the Proposed Opinion lists evidence that suggests a possible unlawful motive for termination. While the Agency objects to those particular lines, it does not ask for those lines to be removed. Instead, the Agency asks the forum to add or insert what it describes as “inconsistencies” “between Respondents’ asserted non-retaliatory reasons for terminating [Randolph] and other evidence in the record as support for finding that an unlawful motive caused the termination.” The Agency lists five “inconsistencies” in which it argues that Respondents asserted one reason for termination that is allegedly contradicted by other evidence. Unfortunately, the Agency does not provide the forum with citations or references to the record where each “assertion” and “contradiction” can be found. Moreover, the forum finds that the Agency’s descriptions of some of the “contradictions” are not accurate. For example, the Agency asserts that evidence of Randolph’s “bad attitude is contradicted by documentary evidence or the lack thereof.” However, Randolph’s own text messages to Dugger stating that he would be looking for a “real job” are evidence of a bad attitude. Additionally, there was testimony of Randolph and others describing that Randolph refused to come upstairs to speak with Dugger on October 5, and instead yelled from downstairs up towards Dugger in front of customers. At hearing, the testimony was consistent that Randolph was terminated primarily for the yelling incident on October 5 and that it was essentially the last straw. While there was reference in the record to Randolph’s performance issues leading up to the termination (prior bad attitude, missing work and “rounding up” of hours), those performance issues were not documented in writing and were not used by Dugger as the justification for ultimately terminating Randolph’s employment. Accordingly, Exception 14 is OVERRULED. Exception 15

In Exception 15, the Agency asks the forum to include a statement that “Respondents withheld key text messages during the course of the Civil Rights Division Investigation including the test message in which Dugger fires Randolph at 5:12 [p.m.] or Randolph’s reference to seeing an attorney at 5:11 [p.m.]” This exception is substantially the same as Exception 3. For the same reasons discussed with regard to Exception 3, Exception 15 is OVERRULED. Exception 16-19 Exceptions 16 – 19 are directed towards the evidence identified in the Proposed Opinion that “tends to show the lack of an unlawful motive.” In each of these exceptions, the Agency requests that some of the individual pieces of evidence be removed from the Opinion. Before discussing these exceptions individually, it is important to note that Oregon law requires that “[t]he officer presiding at the hearing shall ensure that the record developed at the hearing shows a full and fair inquiry into

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the facts necessary for consideration of all issues properly before the presiding officer in the case and the correct application of the law to those facts.” ORS 183.417(8). Accordingly, regardless of the forum’s ultimate conclusions, it is important for an Opinion to include all relevant evidence that supports both the Agency’s and Respondents’ cases. Therefore, in a general sense, the forum is hesitant to remove evidence from an Opinion. Each specific exception is discussed individually below. In Exception 16, the Agency requests that the following evidence be removed from the list of evidence tending to show a lack of an unlawful motive in the Proposed Opinion: “On October 5, 2016, when Randolph told Dugger that a check had bounced, Dugger immediately issued a replacement check.” The Agency argues that the amount of time it took to issue a replacement check is not relevant. The forum disagrees. This evidence showed that Dugger did not display annoyance or hesitancy to issue a replacement check, which indicates a lack of hostility towards Dugger when he raised the issue. It is not determinative, by itself, in showing Dugger’s motivation for terminating Randolph. However, it is a piece of evidence, considered along with others, that suggests the lack of an unlawful motive. Accordingly, Exception 16 is OVERRULED. The Agency also takes exception to the following evidence being identified as tending to show the lack of an unlawful motive in Exception 17: “On the afternoon of October 5, 2016, and on previous occasions, Randolph had been disruptive in the workplace.” The Agency argues that this evidence does not tend to show the lack of an unlawful motive because Randolph had never been disciplined for his behavior in the past and that, in the absence of an unlawful motive, Randolph would have been treated the same as he had been on prior occasions and Dugger would not have terminated him. The Agency’s argument ignores the fact that the disruption on October 5, 2016, involved Randolph yelling at Dugger (his boss) in front of customers. There is no evidence in the record that a disruption of this magnitude occurred on previous occasions. Moreover, the Agency asks the forum to make an assumption that Dugger would have ignored Randolph’s behavior. The forum declines to make this assumption. Exception 17 is OVERRULED. Exception 18 With Exception 18, the Agency takes exception to the Proposed Opinion, page 19, lines 22-23, which lists the following as evidence tending to show the lack of an unlawful motive: “In his text messages to Dugger on October 6, 2016, Randolph said he was not receiving enough work and intended to look for employment elsewhere.” The Agency asserts that these text messages were not cited in the position statement Respondents submitted to BOLI or in Dugger’s declaration dated April 22, 2018. The Agency further asserts that the sequence of the messages “suggests that Randolph’s desire to look for employment elsewhere was not a motivating factor in Dugger’s decision to terminate Randolph’s employment.” The Agency is incorrect in this assertion. Dugger’s declaration stated that Randolph “said he was looking for full-time employment and in the meantime was willing to finish projects for Horizontal ‘if you

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like.’” See Ex. R8, p. 4. In the declaration, Dugger further stated that he interpreted that statement to mean that Randolph intended to look for a new position and would be quitting, and that he hoped Randolph would come into the office so that he could terminate him. The text message provides context to the other messages between the parties. The forum further finds that it is logical that Dugger interpreted Randolph’s intent to seek other work as an intention to quit at some point, which further supported his reasons to terminate him. Accordingly, Exception 18 is OVERRULED. Exception 19 In Exception 19, the Agency requests that the evidence referenced in the Proposed Opinion, page 20, lines 1 – 2 “be removed from the list of evidence tending to show a lack of unlawful motive in the Proposed Opinion.” The evidence listed is as follows: “Throughout his employment, Randolph missed work to meet with an attorney about his child custody case. This supports Dugger’s testimony that he did not consider Randolph’s reference to an ‘attorney’ to be in regard to a wage claim.” The forum finds this evidence to be important in determining Dugger’s understanding of what Randolph may have meant when he referenced talking with his “attorney,” and whether Dugger had an unlawful motive when he told Randolph he was fired. Because Randolph often discussed meeting with an attorney on other matters, the record is not sufficient to prove by a preponderance of the evidence that Dugger understood that Randolph spoke to an attorney about a wage claim and decided to terminate him for that reason. Therefore, Exception 19 is OVERRULED. Exception 20

In Exception 20, the Agency argues that the forum should “infer causation” because of the timing of Dugger’s text to Randolph informing him that he was fired. The Agency is correct that Dugger told Randolph that he was “fired” shortly after Randolph mentioned talking with an attorney. Absent other evidence, that timing may be sufficient to create an inference of causation. However, the forum must also consider the events occurring during that same time frame, which included Randolph yelling at Dugger in the workplace on the previous day and Randolph not coming in to work on the day of his termination. As well, Randolph had mentioned speaking to his attorney about other matters, including a child custody issue and a traffic ticket. Accordingly, the forum declines to draw the inference requested by the Agency and Exception 20 is OVERRULED. Exception 21

Exception 21 requests that the forum conclude in its Opinion that the element of causation was met. For the same reasons discussed with respect to Exception 20, Exception 21 is also OVERRULED.

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EXCEPTIONS TO PROPOSED CONCLUSIONS OF LAW Exception 22 Exception 22 asks the forum to change the Proposed Conclusions of Law in Paragraphs 5 and 7 to state that Respondents violated ORS 659A.199(1), OAR 839-010-0100(1), ORS 652.355(1)(a),(2), OAR 839-010-0100(4)(a) and ORS 659.030(1)(g). Because the forum did not conclude that causation was established, Exception 22 is also OVERRULED.

EXCEPTIONS TO PROPOSED DAMAGES Exceptions 23-25

Exceptions 23 – 25 pertain to damages. Since the forum concluded that there were no violations, no damages will be awarded and the discussion of damages will not be included this Final Order. Accordingly, Exceptions 23 -25 are OVERRULED.

ORDER

NOW, THEREFORE, the charges against all Respondents are DISMISSED.

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_____________________________

In the Matter of

INSIGHT GLOBAL, LLC, RESPONDENT,

CASE NO. 76-18

Final Order of Commissioner Val Hoyle Issued June 18, 2020

_____________________________

SYNOPSIS

In a case of first impression involving the City of Portland’s Removing Barriers to Employment ordinance, the forum concluded that Respondent violated Portland City Code (“PCC”) 23.10.030(A), (B) and administrative rule RBE 2.02(1) – (3) when it asked Complainant a question about his criminal history and excluded him from the hiring process after he disclosed a conviction. The forum awarded Complainant lost wages in the amount of $7,960 and $15,000 for mental and emotional suffering damages.

The above-entitled case came on regularly for hearing before Kari Furnanz, designated as Administrative Law Judge (“ALJ”) by Val Hoyle, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The hearing was held on February 6, 2019, in the W. W. Gregg Hearing Room of the Oregon Bureau of Labor and Industries, located at 800 NE Oregon Street, Portland, Oregon. The Bureau of Labor and Industries (“BOLI” or “the Agency”) was represented by Administrative Prosecutor Adam Jeffries, an employee of the Agency. Complainant, Nathan B. Millsap (“Millsap”), was present throughout the hearing. Respondent Insight Global, LLC (“IG”) was represented throughout the proceeding by Attorneys Sharon Stufken (pro hac vice) and Jennifer Warburg (local counsel). The Agency called BOLI Civil Rights Investigator Rosalia Radich and Millsap as its witnesses. Respondent called Tara Travisano (by telephone) and Hillary Knudsen as witnesses. The forum received into evidence: (a) Administrative exhibits X1 through X21; (b) Agency exhibits A1-A14, (c) Respondent exhibits R1-R4 and (d) exhibits ALJ1-ALJ2.1

1 Exhibits ALJ1 and ALJ2 (applicable City of Portland ordinances and regulations) were requested by the ALJ at hearing. Exhibits R5 and R6 were withdrawn by IG.

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1) At all times material, the City of Portland and the Agency were parties to an intergovernmental agreement for enforcement of Portland City Code (“PCC”) chapter 23.10 and the administrative rules implementing chapter 23.10 concerning Removing Barriers to Employment (RBE) 1.01 to 3.05. The agreement provides the Agency with the jurisdiction and authority to investigate complaints and enforce those provisions. IG was subject to the applicable city code and regulations. (Exs. X2b, X3, ALJ1-ALJ2) 2) Millsap filed a verified complaint with the Agency’s Civil Rights Division on October 20, 2017, alleging that he was the victim of the unlawful employment practices of Respondent, asserting that IG asked about his criminal record before an interview and refused to hire him based on a past criminal conviction, citing Portland City Ordinance 23.10.030. (Ex. A1) 3) On April 10, 2018, the Agency’s Civil Rights Division issued a Notice of Substantial Evidence Determination (“SED”) in which it found substantial evidence of an unlawful employment practice for exclusion of consideration for employment solely because of criminal history, in violation of PCC 23.10.030. (Ex. A13) 4) On September 18, 2018, the forum issued a Notice of Hearing to IG, the Agency, and Millsap stating the time and place of the hearing as January 29, 2019, beginning at 9:00 a.m., at the W. W. Gregg Hearing Room of the Oregon Bureau of Labor and Industries, located at 800 NE Oregon Street, 10th floor, Portland, Oregon. Together with the Notice of Hearing, the forum sent a copy of the Agency's Formal Charges, a document entitled “Summary of Contested Case Rights and Procedures” containing the information required by ORS 183.413, a document entitled “Servicemembers Civil Relief Act (SCRA) Notification,” a multi-language notice explaining the significance of the Notice of Hearing, and a copy of the forum’s contested case hearings rules, OAR 839-050-000 to 839-050-0445. (Ex. X2) 5) The Formal Charges alleged that IG engaged in the following unlawful employment practices:

Direct or indirect conduct intended to or objectively likely to result in the gathering or disclosure of Millsap’s criminal history prior to making a conditional offer of employment to Millsap, in violation of RBE3 2.02(2).

2 The Ultimate Findings of Fact required by OAR 839-050-0370(1)(b)(B) are subsumed within the Findings of Fact – The Merits. 3 “RBE” is an abbreviation for the administrative rules implementing PCC chapter 23.10 concerning Removing Barriers to Employment 1.01 to 3.05.

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Gathered, obtained or used Millsap’s criminal history before making a conditional offer of employment to Millsap, in violation of RBE 2.02(1).

Accessed and considered Millsap’s criminal history in the hiring process before making a conditional offer of employment, in violation of PCC 23.10.030(B).

Based its decision to make or not make a conditional offer of employment upon criminal history that was disclosed by Millsap, in violation of RBE 2.02(3).

Excluded Millsap from consideration solely because of his criminal history, in violation of PCC 23.10.030(A).4

The Formal Charges further alleged that the alleged violations were within the jurisdiction of BOLI pursuant to an Intergovernmental Contract between the City of Portland and BOLI. The Formal Charges sought lost wages estimated to be “at least” $8,400 and damages for emotional, mental and physical suffering in the amount of “at least” $15,000.00. In addition, the Agency requested an order requiring IG to complete training at its expense on PCC chapter 23.10. The Formal Charges also requested, alternatively, that an appropriate Cease and Desist Order be entered against Respondent if it engaged in or committed any unlawful employment practices alleged in the Formal Charges, and that the forum order that it immediately stop all such unlawful practices. The Formal Charges state that the forum’s order may include such other relief as appropriate to eliminate the effects of the unlawful practices found as to Complainant and others similarly situated. (Ex. X2b) 6) IG filed an answer to the Formal Charges on October 8, 2018, in which it denied that it violated any Oregon or City of Portland laws or regulations. (Ex. X3) 7) On October 29, 2018, the ALJ issued an interim order, noting that IG is a limited liability company, which is an unincorporated association under Oregon law. ORS 63.001(17). The interim order further recognized that OAR 839-050-0110(1) requires unincorporated associations to be represented at all stages of the proceeding either by counsel or by an authorized representative. The order further noted that OAR 839-050-0020(13) provides:

“‘Counsel’ means an attorney who is in good standing with the Oregon State Bar or an out-of-state attorney who is granted permission by the administrative law judge to appear in the matter pursuant to ORS 9.241 and Oregon Uniform Trial Court Rule 3.170. Local counsel who obtained the order on behalf of the out-of-state attorney must participate meaningfully in the case in which the out-of-state attorney appears.” The interim order then stated:

“[IG’s] answer was signed by Sharon Stufken, Assistant General Counsel for [IG]. The Answer does not include a reference to Ms. Stufken’s Oregon State

4 The written Formal Charges identified the city code provision as “PCC 23.10.030(1)(A).” At hearing, the ALJ granted the Agency’s unopposed request to strike the “(1)” from the citation due to a scrivener’s error.

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Bar (“OSB”) number and it is not clear whether she is a member of the OSB. If she is a member of the OSB, [IG] must file a document stating this fact on the record. If Ms. Stufken is not a member of the OSB and [IG] desires her representation in this matter, [IG] must file a motion for Ms. Stufken to appear pro hac vice before the forum.

“Alternatively, an authorized representative can appear on behalf of [IG].

An authorized representative includes an authorized officer or regular employee of the limited liability company. OAR 839-050-0110(2). Before a person may appear as an authorized representative, [IG] must file a letter specifically authorizing the person to appear on behalf of the party. OAR 839-050-0110(3).”

(Ex. X4)

8) On November 30, 2018, IG submitted a letter stating that it “specifically authorizes its employee, Sharon Stufken, to appear on behalf of [IG] in this matter pursuant to OAR 839-050-0110(3).” In response to the letter, the forum issued an interim order noting:

“OAR 839-050-0110(3) is BOLI’s rule that requires a written authorization for an authorized representative to appear on behalf of a party. However, since Ms. Stufken is an attorney who seeks to ‘appear on behalf of a party’ in front of an administrative body in Oregon, she must satisfy the requirements set forth in Oregon Uniform Trial Court Rule (‘UTCR’) 3.170. See also ORS 9.241; OAR 839-050-0020(13); Oregon RPC 5.5(c). “

Copies of the forum’s Pro Hac Vice Instructions and Certificate of Compliance were attached to the interim order. (Exs. X5, X6) 9) The forum issued an interim order on January 3, 2019, granting the Agency’s unopposed motion for postponement. Based on the availability of the forum and the parties, the ALJ rescheduled the hearing to begin on Tuesday, February 5, 2019. (Exs. X7-X8, X10) 10) On January 7, 2019, IG filed a Notice of Appearance, notifying the forum of the appearance of Oregon attorney Jennifer Warburg, and indicating that attorney Stufken intended to submit a pro hac vice application. (X9) 11) On January 8, 2019, the ALJ issued two interim orders. The first, entitled "Requirements for Filing Motions and Other Documents," explained the forum's filing requirements, including the method by which documents must be filed and the timeline for filing documents. The second order required case summaries to be filed no later than January 22, 2019, and set out the requirements for what each participant must include in their case summary. (Exs. X11, X12)

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12) After the forum received (1) a signed pro hac vice certification5 seeking pro hac vice admission of Georgia Attorney Sharon Stufken, (2) a notice from the State Bar of Georgia stating that Stufken is an active member in good standing and (3) a certificate of liability insurance for Stufken, the forum issued an interim order on January 14, 2019, granting Stufken’s request to appear pro hac vice in the matter. (Exs. X13-X16)

13) The Agency and IG timely submitted their case summaries on January 22, 2019. IG filed an amendment to its case summary on February 4, 2019. (Exs. 17-X19, X21) 14) At the start of hearing, the ALJ orally informed the participants of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing. (Hearing Record) 15) Witnesses Hillary Knudsen and Rosalia Radich were not permitted to observe the hearing until after their testimony concluded. (Hearing Record) 16) In emails dated April 30, 2020, and May 1, 2020, the Agency and IG’s counsel informed the forum that the Agency and IG agreed to receive filings (including the Proposed Order, exceptions to the Proposed Order and the Final Order) from the parties, the Contested Case Coordinator and the ALJ by email. (Forum File) 17) On May 4, 2020, the ALJ issued a Proposed Order that notified the participants they were entitled to file exceptions to the Proposed Order within ten days of its issuance. After obtaining an extension of time to file exceptions, the Agency and IG timely filed exceptions on May 26, 2020.


1) At all times material herein, IG was an active foreign limited liability company registered with the Oregon Secretary of State Business Registry that employed six or more persons in Portland, Oregon. (Testimony of Radich; Exs. X2b, X3, A4) 2) IG is a company that recruits and hires staff to fill positions for its clients’ businesses. After meeting with its clients to determine hiring needs, IG recruiters contact potential candidates by telephone to fill positions. When appropriate, applicants are asked to meet with a recruiter for an in-person interview. After the in-person interview, candidates are invited to fill out a job application on a computer in the office. Responses to the applications are sent to the finance department in Atlanta, Georgia. IG’s recruiters do not see the application responses. (Testimony of Knudsen; Ex. X3) 3) IG Recruiter Tara Travisano located Millsap’s resume on a job recruiting

5 On January 11, 2019, the ALJ granted IG’s request to file the signed certification by email. (Ex. X15) See also OAR 839-050-0040(3).

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website. She first attempted to contact Millsap by telephone and then emailed him on July 26, 2017, informing him that “[b]ased off of your resume, I feel you would be a great fit for a job opportunity that is currently available.” She requested that Millsap call her if he was still in the job market. When Millsap received the email, he was “excited” and “ecstatic” about the possibility of full-time employment, and he telephoned her as requested. Travisano had a good telephone conversation with Millsap and found him to be professional. She invited him to come to IG’s Portland office for an in-person interview, which took place on August 1, 2017, at 10:00 a.m. During the in-person interview, Travisano determined that Millsap might be a good fit for a couple of job openings. She told him that the openings were full-time positions that paid in the range of $15-$17 per hour. Millsap was willing to accept a full-time position that paid $15 per hour. At the conclusion of the interview, Travisano directed Millsap to an IG computer and invited him to fill out a job application on the computer. She then left Millsap so that he could complete the application alone. (Testimony of Millsap, Travisano; Ex. A3, pp. 13-14) 4) After the initial portion of the application, there was a section titled “Voluntary Survey” with optional questions regarding an applicant’s demographical information. At the end of the demographics questions, there was a button to click to proceed to the next page. On the following page, five questions were listed. The third question on this page asked for a “yes” or “no” response to the following: “I have received a felony conviction or deferred adjudication.” An applicant had to click either “yes” or “no” in response to this question to proceed to the next screen and complete the application. (Testimony of Millsap; Exs. A5, p. 16, R1) 5) IG included the felony conviction question on the application so that it could determine eligibility for the Work Opportunity Tax Credit (“WOTC”). The WOTC is a federal tax credit available to employers in order to create incentives to increase workplace diversity and to help “targeted” workers move from economic dependency to self-sufficiency. A job applicant who is an “ex-felon who has been convicted of a felony under any federal or state law, and is hired not more than 1 year after the conviction or release from prison for that felony” is a member of the “targeted” group the credit seeks to assist. (Testimony of Knudsen; Exs. A6, A12, A14) 6) Millsap became stressed when he saw felony conviction question on the computer application. He had a felony conviction after pleading guilty to assaulting a public safety officer on February 19, 2016. He was familiar with the Ban the Box6 law and did not feel that the question was appropriate or legal. However, he could not move past the question without clicking “yes” or “no.” He felt “on the spot” and that he would be put on the “chopping block” of opportunity if he correctly answered “yes.” He decided to click “no” because he did not want his application to be filtered out. He completed the computer application and left IG’s office. (Testimony of Millsap) 7) Immediately after the interview, Millsap felt an “inner conflict” because he

6 The forum notes that the City of Portland’s Removing Barriers to Employment law and similar laws in other jurisdictions are sometimes referred to informally as “Ban the Box” laws.

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had answered “no” to the felony conviction question. He wanted to be upfront, but also wanted to be considered for a job opportunity. A few hours after the interview, at 1:29 p.m., Millsap sent an email to Travisano in which he thanked her for meeting with him and to further discuss employment opportunities that were available to him. He also stated:

“* * * The next question was whether I have ever had a felony conviction before. I answered no to this because it is illegal for an employer to ask this in the [S]tate of Oregon. Oregon passed a ‘ban the box’ law in 2016 that forbids potential employers from asking applicants whether or not they have a felony conviction prior to giving the applicant a formal job offer. The truth of the matter is that I am a felon and I am currently on probation for assaulting a public safety officer.”

Millsap then explained the circumstances of his arrest, and asked that he be judged “not by my record but by the professional efforts that I make and the nobility of my character.” He explained that “at the end of the interview, I put that I am not a felon on the computer application because I wanted to see how far I would get before it became an issue. After thinking about this I have decided that I do not want to waste my time or yours for that matter. Thank you for reaching out to me and expressing interest in me as an employee.” He concluded the email by complimenting Travisano and wishing her good luck. (Testimony of Millsap; Ex. A3, p. 15) 8) Millsap attempted to reach Travisano by telephone on August 3 and 4, 2017, as he had not yet received a response to his email. On the afternoon of August 4, 2017, he connected with Travisano by telephone. He spoke to her about the felony conviction question on the application and asked whether IG was still considering him for potential employment. Travisano told him that due to company policy, IG could not hire people with felony convictions. At that point, he believed there was no possibility of being hired by IG and stopped trying. (Testimony of Millsap; Ex. A9 p. 6) 9) After the telephone conversation with Travisano, Millsap felt horrible. Up until then, he was hopeful that he would have a chance to be hired and prove himself. He felt dejected and like there was a wall that he could not get through. (Testimony of Millsap) 10) After IG removed him from consideration for a position in August of 2017, Millsap worked sporadically and earned the following wages each month: August 2017 $0 September 2017 $500 October 2017 $1,500 November 2017 $1,500 December 2017 $500 January 2018 $500 In December 2017, his ability to work was limited due to an injury. He started working

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at a position for U-Haul on or about February 20, 2018, but earned no wages in that month prior to that time. (Testimony of Millsap) 11) After this incident, IG removed the criminal conviction question from its job application and no longer inquires about criminal convictions until after a conditional offer of employment is made. Upon receiving information about a criminal conviction, IG now makes an individualized assessment based on the severity of the crime. (Testimony of Knudsen; Ex. R3) 12) The testimony of all witnesses was credible with respect to the relevant facts, with the exception of Travisano’s testimony on two issues. First, she testified that Millsap withdrew himself from consideration and that his felony conviction played no role in whether to consider him for employment. This testimony conflicted with statements made to BOLI by IG’s Corporate Counsel, Bobby Nance. In response to questions from BOLI’s Civil Rights Investigator, Nance referred to IG’s Background Check Policy which states that a felony conviction less than seven years old “will preclude the individual from being eligible for employment” with IG. In addition, in an email to BOLI’s investigator, Nance stated that “after being told by Mr. Millsap that he had a violent felony on his record, [IG] has not contacted him for future placements.” Accordingly, Travisano’s testimony on that matter was not credited. Second, Travisano implied that there was not a specific job available for Millsap’s skill set at the time of his interview. However, that testimony conflicts with her statements in the recruitment email that she sent to Millsap on July 26, 2017, in which she told him that she had reviewed his resume and felt Millsap “would be a great fit for a job opportunity that is currently available.” Therefore, to the extent Travisano’s testimony suggested that there was not a particular job available for Millsap, the forum disregarded that testimony. (Testimony of Travisano; Exs. A3, p. 13, A9, pp. 2, 8).

CONCLUSIONS OF LAW

1) At all times material herein, IG was an employer as defined in ORS 659A.001(4) and RBE 1.02(3), and Millsap was an applicant for employment with IG. 2) IG violated PCC 23.10.030(A), (B) and administrative rule RBE 2.02(1) – (3) by asking Millsap a question regarding criminal convictions prior to making a conditional offer of employment, and then refusing to consider him for employment because of a criminal conviction. 3) The Commissioner of the Bureau of Labor and Industries has jurisdiction of the persons and of the subject matter herein. PCC 23.10.060; ORS 659A.800 - ORS 659A.865. 4) Pursuant to PCC 23.10.060(D) and ORS 659A.850, the Commissioner of the Bureau of Labor and Industries has the authority under the facts and circumstances

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of this case to award Millsap back pay and money damages for emotional and mental suffering he sustained and to protect the rights of Millsap and others similarly situated. The sum of money awarded and the other actions required of IG in the Order below are an appropriate exercise of that authority.

OPINION

This is a case of first impression involving the City of Portland’s Removing Barriers to Employment ordinance. The Agency contends that IG engaged in the following unlawful employment practices: • Direct or indirect conduct intended to or objectively likely to result in the gathering

or disclosure of Millsap’s criminal history prior to making a conditional offer of employment to Millsap, in violation of RBE 2.02(2).

• Gathered, obtained or used Millsap’s criminal history before making a conditional offer of employment to Millsap, in violation of RBE 2.02(1).

• Accessed and considered Millsap’s criminal history in the hiring process before making a conditional offer of employment, in violation of PCC 23.10.030(B).

• Based its decision to make or not make a conditional offer of employment upon criminal history that was disclosed by Millsap, in violation of RBE 2.02(3).

• Excluded Millsap from consideration solely because of his criminal history, in violation of PCC 23.10.030(A).

“The proper construction of a municipal ordinance is a question of law, which [is] resolve[d] using the same rules of construction that [courts] use to interpret statutes.” City of Eugene v. Comcast of Oregon II, Inc., 359 Or. 528, 540, 375 P.3d 446 (2016). Accordingly, one must “look primarily to the ordinance’s text, context, and legislative history, although [courts] may look also to general rules of statutory construction as helpful.” Id. at 540-41, 375 P.3d 446 (internal quotation marks and brackets omitted).

ACCESSING OR GATHERING CRIMINAL HISTORY

The alleged violations of PCC 23.10.030(B), RBE 2.02(1) and RBE 2.02(2) all involve allegations that IG engaged in conduct involving accessing or gathering an applicant’s criminal history prior to making a conditional offer of employment. PCC 23.10.030(B) states:

“An Employer may consider an applicant’s criminal history in the hiring process only after making a Conditional Offer of Employment. An Employer violates this Chapter if an Employer accesses an applicant’s criminal history prior to making a Conditional Offer of Employment.”

RBE 2.02 provides further guidance for interpreting the ordinance. First, RBE 2.02(1) states that “[i]n [general,] [a]n Employer who gathers, obtains, or uses an Applicant’s Criminal History before making a Conditional Offer of Employment violates”

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PCC 23.10.030(B) and the applicable administrative rules. RBE 2.02(2) provides a more specific interpretation and reads:

“Gathering of Criminal History Prohibited. Before making a Conditional Offer

of Employment, an Employer shall not engage in any direct or indirect conduct that is intended or objectively likely to result in the gathering or disclosure of an Applicant’s Criminal History. This includes, but is not limited to, performing criminal background checks, requesting an Applicant to disclose his or her Criminal History in an application form or at an interview, or engaging in any conduct that is intended or objectively likely to cause an Applicant to disclose his or her Criminal History.”

In this case, it is undisputed that no offer of employment was ever made to Millsap. Accordingly, the only inquiry is whether IG engaged in conduct that was intended or objectively likely to result in the gathering or disclosure of his criminal history. In this case, after Travisano interviewed Millsap, she directed him to an IG computer to fill out a job application. (Finding of Fact, #3) IG asserts that it is not liable for this violation because the criminal history question was in a voluntary or optional section of the application. This argument fails for two reasons. First, the question was on a separate page from the heading with the “Voluntary Survey” information. Additionally, Millsap could not avoid answering the conviction question; he had to click on either “yes” or “no” to advance to the next screen and complete the application. (Finding of Fact, #4) Accordingly, it was reasonable for Millsap to perceive that he was required to answer the question and that it was not voluntary. Second, even if the question had been clearly marked as voluntary, the question nevertheless “request[ed that] an Applicant to disclose his * * * Criminal History in an application form.” The issue of whether a response to the criminal history question was optional or voluntary is not relevant to establishing a violation. Therefore, the Agency established violations of PCC 23.10.030(B), RBE 2.02(1) and RBE 2.02(2).

HIRING DECISION BASED ON CRIMINAL HISTORY

Both PCC 23.10.030(A) and RBE 2.02(3) pertain to making employment decisions because of the disclosure of criminal history information. Accordingly, the forum will analyze these provisions in the same manner as other cases in which an employer allegedly discriminated against a person because of his or her protected status. PCC 23.10.030(A) states that it is “an unlawful practice for an Employer to exclude an applicant from consideration solely because of the applicant’s criminal history.” Accordingly, to establish a prima facie case of a violation of PCC 23.10.030(A), the Agency must show: (1) IG was an employer as defined by statute; (2) Millsap was an applicant for employment with IG; (3) IG was aware of Millsap’s criminal history information; (4) IG excluded Millsap from consideration; and (5) IG’s decision to exclude Millsap was based “solely” on his criminal history.

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Elements 1 – 3 are not in dispute. Because the evidence regarding Elements 4 and 5 is essentially the same, those will be analyzed together. Millsap credibly testified that Travisano told him that IG would not be proceeding with the hiring process because of his felony conviction. Additionally, IG’s Corporate Counsel Bobby Nance told BOLI’s Investigator that IG did not contact Millsap for future placements after learning “he had a violent felony on his record.” Nance also referenced IG’s policy stating that a felony conviction less than seven years old “will preclude the individual from being eligible for employment with” IG. Therefore, the Agency established that IG excluded Millsap from the hiring process “solely” because of his criminal history, in violation of PCC 23.10.030(A). RBE 2.02(3) states that employers should disregard criminal history that is disclosed by an applicant before a conditional offer is made, and that an employer “shall not base its decision to make or not make a Conditional Offer of Employment upon any Criminal History that was disclosed by the Applicant.” Accordingly, there are essentially two portions at issue. First, the forum concludes that the Agency established a violation of RBE 2.02(3) because IG did not “disregard” the criminal history disclosed by Millsap. The prima facie case for the second portion of RBE 2.02(3) (hiring decision was based on criminal history) is similar to a violation of PCC 23.10.030(A), except for Element 5. To establish Element 5 when analyzing RBE 2.02(3), the Agency must prove that IG decided not to make a conditional offer because of the criminal history disclosed by Millsap. In this case the result is essentially the same as the conclusion with respect to PCC 23.10.030(A). However, there could be some cases in which an applicant is not excluded from consideration “solely” based on the criminal history in violation of PCC 23.10.030(A), but instead bases its hiring decision, at least in part, on the applicant’s criminal history. As previously stated, the evidence established that IG decided to end the hiring process because of Millsap’s criminal history. Accordingly, the forum concludes that IG violated RBE 2.02(3).

IG’S CONFLICT OF LAW ARGUMENT

In its Answer and at hearing, IG argued that the applicable ordinances and administrative rules do not apply if they conflict with federal regulations. More specifically, IG’s counsel argued that Ban the Box laws do not apply when they conflict with the federal Work Opportunity Tax Credit (“WOTC”) law. While the WOTC was mentioned in IG’s answer, IG did not assert a legal argument or affirmative defense regarding the WOTC. Nevertheless, the forum assumes that IG intended to argue that the City of Portland’s ordinance and regulations are preempted by federal law. “[F]ederal preemption, is an affirmative defense.” Durnford v. MusclePharm Corp., 907 F3d 595, 604 (9th Cir 2018). “The failure of the party to raise an affirmative defense in the answer is a waiver of such defense.” OAR 839-050-0130(3). Accordingly, because IG did not assert preemption as an affirmative defense, the forum concludes that IG waived that argument. Moreover, even if an affirmative defense had been properly asserted, the forum

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concludes that the IG’s argument lacks merit. Under the Supremacy Clause of the Constitution, Congress has the power to preempt state law. U.S. Const. art. VI, cl. 2; Arizona v. United States, 567 US 387, 398-99 (2012). State laws are preempted when Congress enacts a statute withdrawing specified powers from the states, when Congress determines that a particular field must be regulated specifically by Congress or when a state law conflicts with federal law. Arizona, 567 US at 398-400. In this case, IG did not identify any particular federal statute or regulation that meets any of these conditions. Additionally, there is little evidence in the record as to the specifics of the WOTC such that the forum can determine whether any conflict exists. However, the evidence that is in the record indicated that the WOTC is a federal tax credit available to employers in order to create incentives to increase workplace diversity and to help “targeted” workers move from economic dependency to self-sufficiency. (Finding of Fact, #5) A job applicant who is an “ex-felon who has been convicted of a felony under any federal or state law, and is hired not more than 1 year after the conviction or release from prison for that felony” is a member of the “targeted” group the credit seeks to assist. In this case, the question IG asked was whether the applicant “received a felony conviction.” The inquiry was not limited to an applicant “hired more than 1 year after the conviction or release from prison,” which is the criteria for the WOTC. Thus, the question on the job application was overly broad to serve the purpose of gathering WOTC tax credit information. Additionally, although there is an indication that the applicant is to provide the information “on or before the day a job offer” is made, the Portland law speaks to gathering the information after a “conditional” offer is made. This does not make the two laws in conflict. For example, based on the information in the record, an employer who gathers the information after a conditional offer is made but “on” the same day of the offer could be in compliance with both the Ban the Box and WOTC requirements. Therefore, there is insufficient legal authority or factual evidence in the record for the forum to conclude that there is conflict between the City of Portland laws at issue in this case and the WOTC.7

DAMAGES

Lost Wages Millsap is eligible for a back pay award due to the violations described above PCC 23.10.060; ORS 659A.850. The purpose of a back pay award in employment discrimination cases is to compensate a complainant for the loss of wages and benefits the complainant would have received but for the respondent’s unlawful employment practices. In the Matter of Blue Gryphon, LLC, and Flora Turnbull, 34 BOLI 216, 238 (2015). Back pay awards are calculated to make a complainant whole for injuries suffered as a result of the discrimination. Id. A complainant who seeks back pay is required to mitigate damages by using reasonable diligence to find other suitable employment. Id.

7 This ruling is limited to the record developed in this case and is not meant to conclude that there could never be a conflict between a federal law and the City of Portland ordinance and regulations.

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The forum has previously awarded back pay to job candidates who are excluded from consideration due to unlawful discrimination. See, e.g. In the Matter of Alpine Meadows Landscape, 19 BOLI 191, 214-16 (2000) (back pay awarded to complainant who was not hired due to his age); In the Matter of Sierra Tile Mfg., Inc., 1 BOLI 291, 294 (1980) (awarding back pay after finding that complainant was not hired because of his race). In this case, prior to the disclosure of Millsap’s conviction, IG interviewed him for a full-time position that paid at least $15 per hour. Although IG suggests it was speculative that he would have actually been hired, Travisano emailed him about “a job opportunity that is currently available” and she found him to present favorably in both his telephone and in-person interviews. IG did not remove him from consideration until after he disclosed his felony conviction. That decision was based on IG’s internal policy. There was no evidence that the lack of a criminal conviction was a requirement of the particular job position. Therefore, but for the unlawful discrimination, Millsap would have earned $26008 per month after receiving an offer of employment. There was no evidence in the record as to the start date of the job position for which Millsap applied, except for Travisano’s testimony that the job was “currently available.” Accordingly, the forum infers that Millsap would have started working in the position at the beginning of the next month, September 2017.

Millsap credibly testified that he continued to seek employment and worked sporadically in the months following his application for employment with IG. He ultimately secured a full-time position on or about February 20, 2018. Based on this information, the forum calculates his lost wages as follows:

Month IG Position Monthly Wage

Actual Earned Wages

Lost wages9

September 2017 $2,600 $500 $2,100

October 2017 $2,600 $1,500 $1,100

November 2017 $2,600 $1,500 $1,100

December 2017 $2,600 $500 $010

January 2018 $2,600 $500 $2,100

February 201811 $1,560 $0 $1,560

Total IG Wages: $14,560 Total actual earned: $4,500 Back Pay Total: $7,960

8 The forum calculated this figure using this methodology: $15 per hour x 40 hours per week x 4.33 weeks per month (52 weeks per year divided by 12 months). 9 Lost wages were calculated by subtracting the actual earned wages from the wages that would have been paid to Millsap if he had been hired by IG. 10 Millsap’s ability to work was limited in December 2017 due to an injury. Accordingly, the forum finds that IG did not cause any lost wages for that month. 11 Millsap obtained another position on or about February 20, 2018. Accordingly, wages were only calculated for 13 working days prior to that date.

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Emotional Distress Damages The Agency seeks damages on behalf of Complainant in the amount of at least $15,000 for emotional, mental and physical suffering. Pursuant to ORS 659A.850, the Commissioner of the Bureau of Labor and Industries has the authority to award money damages for emotional, mental, and physical suffering sustained. In the Matter of Frehoo Inc., 36 BOLI 42, 71 (2015). The commissioner has the authority to fashion a remedy adequate to eliminate the effects of unlawful employment practices. Id.

In determining an award for emotional and physical suffering, the forum considers the type of discriminatory conduct, and the duration, frequency, and severity of the conduct. It also considers the type and duration of the mental distress and the vulnerability of the aggrieved persons. A complainant’s testimony, if believed, is sufficient to support a claim for mental suffering damages. Id., citing In the Matter of Dr. Andrew Engel, DMD, PC, 32 BOLI 94, 141 (2012).

Millsap credibly testified that he felt “on the spot” when he saw the criminal conviction question on the job application. He felt stressed and like he was on the chopping block. A few days later, when Travisano told him that IG does not hire people with felony convictions, Millsap felt horrible and dejected. He lost the hope that he could be hired and prove himself to an employer. The forum concludes that $15,000 is an appropriate award of emotional distress damages as a result of IG’s unlawful discrimination. See, e.g. In the Matter of Barrett Business Services, Inc., 22 BOLI 77, 96-97 (2001) (awarding $15,000 to a complainant when a potential employer made inquiries as to whether she was disabled during the application process).12 Additional Relief requested by the Agency

In its Formal Charges, the Agency asked that IG and its managers, supervisors and human resources personnel be trained, at IG’s expense, “on Removing Barriers from Employment including, but not limited to PCC Chapter 23.10.” The Agency further requested that the training “be conducted by the Bureau of Labor and Industries’ Technical Assistance Unit, or another trainer agreeable to and approved by the Agency.” BOLI’s Commissioner is authorized to issue an appropriate cease and desist order reasonably calculated to eliminate the effects of any unlawful practice found. ORS 659A.850(4). Among other things, that may include requiring a respondent to:


“(A) Carry out the purposes of this chapter; “(B) Eliminate the effects of the unlawful practice that the respondent is found to have engaged in, including but not limited to paying an award of

12 See also In the Matter of Blue Gryphon, LLC, and Flora Turnbull, 34 BOLI 216, 239 (2015) (awarding $20,000 for mental and emotional suffering); In the Matter of Hey Beautiful Enterprises, Ltd., 34 BOLI 80, 101 (2015) (awarding complainant $10,000 in emotional distress damages).

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actual damages suffered by the complainant and complying with injunctive or other equitable relief; and “(C) Protect the rights of the complainant and other persons similarly situated[.]”

This statute gives the Commissioner the authority to require IG and its managers, supervisors and human resources personnel to undergo training of the type sought in the Formal Charges. IG argued at hearing that this type of relief was not necessary because, after this incident, IG removed the criminal conviction question from its job application and no longer inquires about criminal convictions until after a conditional offer of employment is made. (Finding of Fact, # 11) There was also credible evidence that IG now makes an individualized assessment based on the severity of the crime. These measures are steps in the right direction, but the forum is unable to conclude that IG’s current policies and procedures satisfy all of the requirements of PCC 23.10.030 and RBE 2.03 regarding the appropriate use of criminal history. Accordingly, the forum finds that the training requested by the Agency is an appropriate remedy in this case. The forum limits the required training to only the managers, supervisors and human resources personnel who interact with job applicants in the City of Portland.

EXCEPTIONS TO THE PROPOSED ORDER

Agency’s Exceptions

The Agency’s Exceptions 1-3 and 5 request that the forum make minor punctuation corrections. The exceptions are GRANTED, as reflected in the sections above. The Agency’s Exception 4 asks the forum to revise the calculation of lost wages per month from 4 weeks per month to “52 weeks per year divided by 12 months.” This exception is GRANTED, as reflected in footnote 8 above. IG’s Exceptions In Respondent’s Exception 1, IG requests that the forum modify the conclusion in the Proposed Order “to reflect that [IG] is not in violation of Portland’s Ban-the-Box rule in light of the undisputed evidence regarding the basis for IG’s inclusion of the voluntary criminal history question on its application for employment.” In other words, IG argues that because the forum found that the criminal history question was included to determine eligibility for the federal WOTC program, this places the City of Portland’s rules and regulations in direct conflict with federal law. However, as explained above, the forum concludes that this case presents no conflict between the two laws. The question is not whether IG may ask a criminal question, but rather when and under what circumstances it may do so. As indicated above, it may not do so before making a conditional offer of employment. Moreover, IG’s reference to PCC 23.10.040(B)(3) does not assist its argument. That ordinance states, in pertinent part:

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“B. For the following positions, an Employer may consider an applicant’s criminal history at any point in the hiring process, and may use the City Criminal History Matrix provided by administrative rule to screen applicants, but must nonetheless comply with all other requirements of this Chapter. An individualized assessment shall be required for any criminal convictions not contained on the City Criminal History Matrix. * * *

3. Positions designated by the Employer as part of a federal, state or local government program designed to encourage the employment of those with criminal histories.”

IG’s argument ignores the provision requiring that an employer must “comply with all other requirements of this Chapter.” As well, there is no evidence in this case that IG was considering Millsap for a position that IG had designated “as part of a federal state or local government program designed to encourage the employment of those with criminal histories.” Rather, the evidence was that some positions that IG filled might fit that category. Accordingly, IG’s Exception 1 is OVERRULED. Exceptions 2 and 3 object to the amount of emotional distress and lost wage damages awarded. The reasoning to support the awards is addressed in the Opinion above and the forum is not persuaded that the amount of damages should be changed. Therefore, IG’s Exceptions 2 and 3 are OVERRULED.

ORDER

A. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS 659A.850(4), and to eliminate the effects of Respondent Insight Global LLC’s

violations of PCC 23.10.030(A), (B) and administrative rule RBE 2.02(1) – (3), and as payment of the damages awarded, the Commissioner of the Bureau of Labor and Industries hereby orders Respondent Insight Global LLC to deliver to the

Administrative Prosecution Unit of the Bureau of Labor and Industries, 1045 State Office Building, 800 NE Oregon Street, Portland, Oregon 97232-2180, a certified check payable to the Bureau of Labor and Industries in trust for Complainant Nathan Millsap

in the amount of:

1) SEVEN THOUSAND NINE HUNDRED AND SIXTY DOLLARS ($7,960), less lawful deductions, representing wages lost by Nathan Millsap as a result of Respondent Insight Global, LLC’s unlawful employment practice found herein; plus, 2) FIFTEEN THOUSAND DOLLARS ($15,000), representing compensatory damages for emotional and mental suffering Nathan Millsap experienced as a result of Respondent Insight Global, LLC’s unlawful

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employment practices; plus, 3) Interest at the legal rate on the sum of TWENTY-TWO THOUSAND NINE HUNDRED AND SIXTY DOLLARS ($22,960) from the date the Final Order is issued until paid.

B. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS 659A.850(4), the Commissioner of the Bureau of Labor and Industries hereby orders that the managers, supervisors and human resources personnel of Respondent Insight Global, LLC who interact with job applicants in the City of Portland must participate in

training on the correct interpretation and application of the City of Portland’s Removing Barriers from Employment ordinances and rules including, but not limited to PCC Chapter 23.10, by the Bureau of Labor and Industries Technical Assistance for Employers Unit or other trainer agreeable to the Agency. This training is to be held at the expense of Respondent Insight Global, LLC.

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_____________________________

In the Matter of

PCC STRUCTURALS, INC, RESPONDENT,

CASE NO. 108-18

Final Order of Commissioner Val Hoyle Issued August 6, 2020

_____________________________

SYNOPSIS

The Agency established by a preponderance of the evidence that Respondent PCC Structurals, Inc. denied family medical leave to Complainant, counted family medical leave against Complainant in determining compliance with its attendance policy and terminated her employment in violation of ORS 659A.183(1),(2) and OAR 839-009-0320(3),(4). The forum awarded lost wages in the amount of $70,447.32, emotional distress damages of $20,000 and out-of-pocket expenses in the amount of $436. The forum also ordered Respondent to cease and desist from (1) denying family medical leave to eligible employees and (2) discriminating against any employee for invoking the Oregon Family Medical Leave Act.

The above-entitled case came on regularly for hearing before Kari Furnanz, designated as Administrative Law Judge (“ALJ”) by Val Hoyle, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The hearing was held on February 12, 2019, in the W. W. Gregg Hearing Room of the Oregon Bureau of Labor and Industries, located at 800 NE Oregon Street, Portland, Oregon. The Bureau of Labor and Industries (“BOLI” or “the Agency”) was represented by Administrative Prosecutor Adriana Ortega, an employee of the Agency. Complainant, Michele Mathews (“Mathews”), was present throughout the hearing. Respondent PCC Structurals, Inc. (“PCC”) was represented throughout the proceeding by Attorney Karen O’Connor and Alisha Kormondy. Kymberlee Dressel, Employee Relations Manager for PCC, was also present. The Agency called Mathews, Heather Beauchemin and BOLI Civil Rights Investigator Moayyaad Khosnaw and as its witnesses. Respondent called Heather Beauchemin, Kymberlee Dressel, Debbie Schwanz and Scott Stipe as witnesses. The forum received into evidence: (a) Administrative exhibits X1 through X15; (b)

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Agency exhibits A1-A3, A5-A9, A14-A15, A18-A21, pages 1-2 of A23, and A24-A25,1 and (c) Respondent exhibits R1-R17, pages 1-4 of R18, R19-R20, R22 and R25-R26.2 Having fully considered the entire record in this matter, I, Val Hoyle, Commissioner of the Bureau of Labor and Industries, hereby make the following Findings of Fact (Procedural and on the Merits), Conclusions of Law, Opinion, and Order. 3


1) Complainant Michele Mathews (“Mathews”) filed a verified complaint with the Agency’s Civil Rights Division on July 26, 2017, alleging that PCC Structurals, Inc. (“PCC”) denied her protected leave under the Oregon Family Leave Act (“OFLA”) and counted absences protected by OFLA against her, resulting in her termination from employment. (Ex. A1) 2) On June 12, 2018, the Agency’s Civil Rights Division issued a Notice of Substantial Evidence Determination (“SED”) in which it found substantial evidence that PCC engaged in the following unlawful employment practices: denial of protected OFLA leave and termination of employment in violation of ORS 659A.183. (Ex. A18) 3) On August 17, 2018, the forum issued a Notice of Hearing to Respondents, the Agency, and Complainant stating the time and place of the hearing as February 27, 2019, beginning at 9:00 a.m., at the W. W. Gregg Hearing Room of the Oregon Bureau of Labor and Industries, located at 800 NE Oregon Street, 10th floor, Portland, Oregon. Together with the Notice of Hearing, the forum sent a copy of the Agency's Formal Charges, a document entitled “Summary of Contested Case Rights and Procedures” containing the information required by ORS 183.413, a document entitled “Servicemembers Civil Relief Act (SCRA) Notification,” a multi-language notice explaining the significance of the Notice of Hearing, and a copy of the forum’s contested case hearings rules, OAR 839-050-000 to 839-050-0445. (Ex. X2) 4) The Formal Charges alleged that PCC engaged in unlawful employment practices in violation of ORS 659A.183(1),(2) and OAR 839-009-0320(3),(4),(5). The Formal Charges sought lost wages of at least $59,000, out-of-pocket expenses of at least $1,000 and damages for emotional, mental and physical suffering in the amount of at least $150,000. The Formal Charges also stated that the forum’s order may include such other relief as appropriate to eliminate the effects of the unlawful practices found as to Complainant and others similarly situated. (Ex. X2b)

1 Several of the exhibits offered by the Agency and PCC duplicated one another as follows: Exs. A5 and R6 are the same document; Ex. R7 is the same document as page 2 of Ex. A6; Ex. R11 is the same document as page 2 of Ex. A7; and Ex. R12 is the same document as page 1 of Ex. A7. 2 Exhibits R25-R26 were admitted only for the purpose of impeachment. 3 The Ultimate Findings of Fact required by OAR 839-050-0370(1)(b)(B) are subsumed within the Findings of Fact – The Merits.

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5) PCC timely filed an Answer denying the Agency’s allegations on September 6, 2018. 6) On January 8, 2019, the ALJ issued an interim order requiring case summaries to be filed no later than January 29, 2019. The Agency and PCC timely filed their case summaries on January 29, 2019. (Exs. X5, X9, X10) 7) On January 28, 2019, the Agency filed motions to consolidate this case with Case No. 57-19 and to postpone the hearing in this matter until May 21, 2019, the date the hearing in Case No. 57-19 was scheduled to begin. PCC filed a brief in opposition to the motions on February 1, 2019. The ALJ’s ruling on the Agency’s motion stated, in pertinent part:

“OAR 839-050-0190 provides that the administrative law judge may order a joint contested case hearing for two or more cases where the administrative law judge determines that the cases ‘involve common questions of law or fact.’ Both Case No. 108-19 and 57-19 involve the same Complainant and the same Respondent, and both involve allegations that [PCC] took an adverse action against Complainant because she invoked the Oregon Family Leave Act. However, Case No. 108-19 primarily involves allegations regarding the termination of Complainant on June 7, 2017, and events prior to that date. By contrast, Case No. 57-19 involves an alleged violation that [PCC] directed a recruiting company to rescind an offer of employment to Complainant in July of 2018. The record before the forum indicates that there are different witnesses to the events at issue in Case No. 57-19 than those that have been identified in the parties’ case summaries for Case No. 108-19. Accordingly, there is insufficient evidence before the forum to conclude that the cases ‘involve common questions of law or fact.’ The Agency’s motions to consolidate and to postpone are DENIED.”

(Exs. X8, X11, X13) 8) On February 1, 2019, the Agency filed an unopposed motion for a protective order regarding tax records of Mathews. PCC responded to the motion on February 8, 2019. The ALJ verbally granted the motion on the record at the commencement of the hearing. (Exs. X12, X14; A23 - A25; Hearing Record) 9) At the start of hearing, the ALJ orally informed the participants of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing. (Hearing Record) 10) Prior to the parties’ opening statements, the Agency stated that it had issued subpoenas to witnesses Heather Beauchemin and Frank Williams, but the witnesses had not contacted the Agency and the Agency was not sure if they would appear at hearing as directed by the subpoenas. The Agency stated that these two witnesses were employed by PCC and the Agency requested that the ALJ issue an order requiring that the witnesses be produced. PCC stated that Beauchemin would be

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appearing to testify on behalf of PCC and agreed that she could also testify as part of the Agency’s case. However, PCC had not planned to call Williams as a witness and PCC’s counsel was not aware that he had been served with a subpoena. The ALJ required the Agency to provide a copy of the documents served on Williams and a proof of service to the forum and to PCC. After a brief recess, the ALJ noted that the forum received documents from the Agency, which were marked as Ex. X15. The ALJ observed that any order to comply with the subpoena was outside of the ALJ’s jurisdiction. See OAR 839-050-0200(9) (stating that the Agency “may apply to the Oregon Circuit Court to compel obedience to a subpoena”). However, if a witness did not comply with a subpoena, then the ALJ could issue an order regarding evidence to be admitted. See OAR 839-050-0200(11). The ALJ noted that the subpoenas were served by certified mail, but no green return postcard had been returned. The Agency stated it had trouble on many occasions receiving the green return postcards, but that an online report from the US Postal Service showed that the subpoena was delivered to Williams’s address. PCC’s counsel represented that she spoke to Williams during the break and he had not received the subpoena, and further stated that PCC would have agreed to produce Williams as a witness if the Agency would have requested that in advance of the hearing. However, Williams was currently on the manufacturing floor working. The ALJ stated that there was insufficient proof of service and that she was unable to issue an order requiring Williams to appear, and noted that it is easier on all parties when they discuss witness scheduling issues in advance of the hearing. (Hearing Record; Ex. X15) 11) During the hearing, the Agency objected to the expert testimony of PCC’s witness, Scott Stipe, a vocational rehabilitation counselor because PCC’s case summary indicated that he would testify as to subsequent employment opportunities available to Mathews and there would be evidence that she received subsequent job offers. In response, PCC’s counsel asserted that there is a period of time between the termination and the subsequent job offers and that he would testify as to job opportunities during that timeframe. The ALJ overruled the objection. After the direct testimony of Stipe, the ALJ required that PCC provide a copy of Stipe’s file to the Agency to review during a break prior to cross examination of the witness. At the conclusion of the Agency’s cross examination of Stipe, the Agency made an oral motion for the forum to disregard Stipe’s testimony because he never met with or spoke to Mathews. The ALJ overruled the Agency’s objection, but stated that the Agency’s objection would be considered when evaluating the weight of Stipe’s testimony. (Hearing Record) 12) PCC’s Answer included an affirmative defense which stated, “Without assuming Complainant’s burden of proof, [PCC] asserts that [Complainant’s] absences were not protected by the Oregon Family Leave Act due to Complainant’s own failure to comply with reasonable procedures set out by [PCC] in accordance with OAR 839-009-0250(3).” (Emphasis added.) Throughout the hearing, PCC extensively referenced

subsection (3) and repeatedly asserted that Mathews failed to provide sufficient written notice to PCC that the three absences at issue in this case were for family medical

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leave reasons. During the Agency’s redirect questioning of BOLI Compliance Specialist Khosnaw,4 the administrative prosecutor referred to OAR 839-009-0250(6) in response

to PCC’s affirmative defense regarding subsection (3). PCC’s counsel objected to the questioning regarding subsection (6), asserting that the question was beyond the scope of redirect because PCC’s counsel did not ask the witness about subsection (6) during cross examination. In response, the Agency argued that PCC was having the witness discuss certain subsections of OAR 839-009-0250 without looking at the entirety of the regulation, and the Agency wanted to question the witness about the other subsections. The ALJ noted that subsection (6) was not a violation identified in the Formal Charges and the witness was not asked about subsection (6) during cross examination, and asked the Agency to respond. In response, the Agency argued that the witness was questioned about what permissible actions an employer could take, and subsection (6) talks about those actions. The ALJ sustained PCC’s objection to the question, noting that the witness did not discuss subsection (6) in the substantial evidence determination he authored and he was not asked about that subsection during cross examination. However, the ALJ told the prosecutor that she could address subsection (6) during the Agency’s closing argument.

Immediately prior to closing arguments, PCC’s counsel stated that she would object if subsection (6) was referenced in the Agency’s closing argument because it was not identified in the Formal Charges. In response, the Agency argued that subsection (3) cited in PCC’s affirmative defense is part of a larger regulation and it “defies logic” that references to a regulation should be limited in that manner. The prosecutor further stated that subsection (6) was not a violation and did not need to be cited in the Formal Charges. The ALJ instructed the Agency not to reference subsection (6) in its closing argument, but permitted the Agency to file a brief after the hearing regarding whether the forum should consider subsection (6). PCC was permitted to file an opposition brief.

On March 14, 2019, the Agency timely filed a document titled Motion for Consideration of Closing Argument on OAR 839-009-0250(6). In the motion, the Agency argued that BOLI Compliance Specialist Khosnaw “was questioned extensively, over the Agency’s objection, by [PCC’s] counsel, on ORS 659A.183 and OAR 839-009-0250(3).” The Agency argued that the administrative prosecutor’s redirect questioning of Khosnaw regarding subsection (6) and the reference to subsection (6) in the Agency’s closing argument were permissible rebuttal evidence and argument. The Agency further argued that it was not basing a violation on subsection (6) and, thus, was not required to cite to that subsection in the Formal Charges. PCC filed a timely response to the Agency’s motion on March 21, 2019. In its opposition brief, PCC reasserted the objections made at hearing. In addition, PCC argued:

4 At the start of the hearing, the Agency requested that it be permitted to call Khosnaw as a witness on the second day of hearing, after the completion of the remainder of the Agency’s case, due to his schedule. PCC’s counsel stated that it did not object to this witness being called out of order. Khosnaw was the last witness to testify at hearing.

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“Contrary to the Agency’s position, it was the Agency that raised this particular subsection and it did so after the conclusion of both direct examination and cross examination questioning, with a witness taken out of order. Even assuming the Agency’s belated raising of this issue was proper, at a minimum, Respondent should have been entitled to present evidence on the matter, and the Agency’s actions prevented that simple justice.”

(Emphasis in original).

After further review of the record, the forum notes that multiple subsections of OAR 839-009-0250 were referenced throughout the hearing without objection. For example, in its opening statement and in the cross examination of Khosnaw, PCC referred to OAR 839-050-0250(4)(c),5 which discusses one of the options available to an employer when an employee fails to give notice of foreseeable leave. The forum finds that the subsections of OAR 839-009-0250 elaborate and define what it means for an employee to provide “notice” of family leave to her employer under ORS 659A.165. ORS 659A.165 discusses actions that an employer may take in terms of requiring that employees provide notice of family medical leave. The actions that an employer may take are not the basis for an unlawful employment practice. The notice provisions only became at issue due to PCC’s defense and did not originate from the Agency. Accordingly, the Agency was not required to cite to OAR 839-009-0250(6) in the Formal Charges. Additionally, although PCC states that it did not have the opportunity to provide a response to the Agency’s reference to subsection (6), it was permitted to do so in its opposition brief filed on March 21, 2019. In its briefing, it did not identify any additional evidence that it would have presented in response to subsection (6). Therefore, PCC’s objections to the Agency’s references to OAR 839-009-0250(6) are OVERRULED.

13) On April 28, 2020, the Agency filed a Notice of Reassignment, stating that

the case had been reassigned to Chief Prosecutor Cristin Casey. (Forum File) 14) In emails dated May 27, 2020, the Agency and PCC’s counsel informed

the forum that the Agency and PCC agreed to receive filings (including the Proposed Order, exceptions to the Proposed Order and the Final Order) from the parties, the Contested Case Coordinator and the ALJ by email, because of challenges associated with the COVID-19 virus. (Forum File)

15) On June 4, 2020, the ALJ issued a Proposed Order that notified the participants they were entitled to file exceptions to the Proposed Order within ten days of its issuance. After obtaining an extension of time to file exceptions, the Agency and PCC timely filed exceptions on July 3, 2020.

5 PCC’s counsel referred to subsection (3)(c) in opening statements. However, the language she quoted is actually in subsection (4)(c).

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1) At all times material herein, PCC was an active domestic business corporation registered with the Oregon Secretary of State Business Registry that employed 25 or more persons in the State of Oregon. PCC manufactures stationary components that form portions of the fan, compressor, combustor and turbine sections of a jet aircraft engine. (Exs. X2b, X3, A14) 2) Mathews began working as a radiographer for PCC on or about April 26, 2012. Her duties as a radiographer included radiographing and setting up castings for radiography. She previously worked for PCC from approximately 1988-1994. (Testimony of Mathews; Exs. X2b, X3) 4)6 During March through May of 2017, Mathews worked from 6:00 a.m. to 2:30 p.m. Sunday through Thursday, but that was later changed to a Monday through Friday schedule. (Testimony of Mathews) 5) PCC has an Attendance and Punctuality policy, which provides that an “employee’s employment will be terminated when the employee has reached seven (7) unexcused absence days.” An employee receives a whole attendance “hit” for missing an entire shift or one half of a “hit” for missing half of a shift. Employees do not receive an attendance hit for using up to 40 hours of Oregon sick time. It is the employee’s responsibility to maintain and manage their own attendance “hits.” Absences related to protected family medical leave is updated “as information is received.” Prior to March 29, 2017, Mathews had 4.5 attendance hits. (Testimony of Beauchemin; Exs. R4, R8) 6) In the past, employees received a summary of their absences on the first day of each month with their paycheck, but that practice was discontinued. Starting in November of 2016, PCC notified employees that they could view their attendance information electronically at “EPMS” stations by clicking on an “attendance” button. An EPMS station is a bar code reader station. Everything an employee does involves using their identification badge at an EPMS station. This includes clocking in and out, and using machine parts. Mathews had to use an EPMS station several times throughout the day to clock in and out, and to perform her job. (Testimony of Beauchemin; Exs. R4, R18) 7) The attendance policy is strictly applied. When an employee does not submit required forms on time, that results in an attendance hit. Attendance is one of the most common reasons for employee terminations at PCC. (Testimony of Beauchemin, Dressel) 8) Mathews had a medical authorization on file with PCC for intermittent leave for a chronic neck injury. More specifically, on February 8, 2017, Mathews provided a signed Certification of Healthcare Provider form to PCC for “neck injury – chronic cervical pain.” The form noted that she would need intermittent leave or a

6 There is no Finding of Fact – The Merits, #3.

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reduced work schedule “as needed.” The benefits department keeps certifications for intermittent FML leave on file for six months. She had previously submitted healthcare provider certifications to PCC for intermittent leave for the same injury, including certifications submitted on August 7, 2015, and May 6, 2016, and had been approved to take family medical leave for this injury several times each year, starting in 2013. (Testimony of Mathews, Schwanz; Exs. A14, R5) 9) PCC has a five-page “Family Medical Leave & Military Family Leave” policy. Page three of the policy contains a section titled “Employee’s Obligation to Provide Notice.” That section reads, in pertinent part:

“An employee who wishes to take FML should complete a leave request form and submit it to Human Resources. “* * * If it is not possible to provide thirty (30) days’ notice for any leave, the employee is required to provide as much advance notice as its practicable. In emergency situations (e.g. an unanticipated serous health condition), the employee or someone on the employee’s behalf should make an oral request within twenty-four (24) hours after the leave begins and submit a completed form within three (3) days of returning to work.”

Mathews received this policy when she began her employment in 2012, and understood that she was expected to follow the policy. Mathews understood that when a PCC employee is absent for unanticipated family medical leave, the employee must first call PCC’s absence call-in line to report the absence. She also understood that she needed to submit a FML request form within three days of returning to work after an unanticipated absence. The FML request form contains instructions on the bottom to “return form to” Debbie Schwanz or Amy Bertsch. Schwanz receives the completed forms in several ways, including by in person delivery, from the department’s mail slot, through email, fax, from the human resources department, or from one of the manufacturing administrators, such as Heather Beauchemin. After receiving FML request forms, Schwanz reviews the form and the employee’s information in the system to determine if the request is approved, denied or pending. Schwanz sends a letter to the employee to let them know if the request was approved or denied. Sometimes employees call in to report a FML absence, but do not turn in the FML form. If the benefits department does not receive the FML form and approve OFLA leave, the absence is not counted as protected OFLA leave. (Testimony of Mathews, Beauchemin, Schwanz; Exs. R3, R17) 10) PCC’s FML form also states, “You should retain a date stamped copy of your completed Request Form for your records.” Because the benefits department receives “hundreds and hundreds” of requests each month, in case there is an issue with the timeliness of the form, an employee can use the date stamped copy to show that the form was submitted on time. (Testimony of Schwanz; Ex. R17) 11) Mathews was told to place the completed FML forms on the desk of Adam

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Thompson, who was the “lead” of her department. Accordingly, whenever Mathews submitted FML forms, she placed them on the lead desk in her work area for a supervisor to sign. She never handed the forms directly to someone in the benefits department, which is in a different building from her work site. She does not know how the forms were transmitted from the lead desk in her work area to the benefits department. When Manufacturing Administrator Heather Beauchemin receives a FML request form, she will forward the form to the benefits department for processing and files it. If Beauchemin is out of the office for longer than a day, a person covering for her would process it in the same way. (Testimony of Mathews, Beauchemin) 12) In order to be paid for an absence, the employee must also fill out a multipurpose form, which is used to designate how an employee is to be paid, such as through the use of vacation or sick pay. The multipurpose form is to be signed by the employee and the employee’s supervisor. (Testimony of Mathews; Exs. R16, R17) 13) On March 29-30, 2017, Mathews’s neck was strained and pinching, and she was unable to come to work. She used PCC’s attendance call-in line to report her FML absence. (Testimony of Mathews, Beauchemin; Ex. A14) 14) Mathews returned to work for her next scheduled shift on April 2, 2017, and placed the required forms for her absences on the lead desk, as she had done in the past. At the top upper right hand of her multipurpose form, Mathews handwrote the letters “FML.” She signed the form on April 2, 2017. Mathews designated that she wanted to use vacation and sick pay to be paid for those absences. Her supervisor, Frank Williams, signed the form on April 3, 2017. (Testimony of Mathews, Beauchemin; Ex. A14) 15) Manufacturing Administrator Beauchemin processes multipurpose forms for payroll purposes and files the forms. She also tracks attendance. Beauchemin has had a “little bit” of family medical leave training. She does not process FML request forms, but she receives FML forms and forwards those forms to the benefits department. Beauchemin places a date stamp on any FML request forms that she receives. If an employee turns a form in on a day when Beauchemin is not working, the employee can turn in the form to a lead or supervisor, who can then tell Beauchemin that the employee turned in the form on a particular date. Alternatively, Beauchemin can date stamp the FML form on the day she returns to the office. For example, Beacuchemin stamped a FML form for Mathews’s absence on March 16, 2016, when she returned to the office and treated the form as being timely received. (Testimony of Beauchemin; Exs. R16, R17) 16) Sometime during the week of April 3, 2017, Beauchemin received Mathews’s multipurpose form for the March 29-30, 2017, absences, which contained the handwritten “FML” notation. When an employee writes “FML” on the multipurpose form, Beauchemin considers that to be informing her that the employee was out for family medical leave. However, the FML notation is not a request for family medical leave. The words “FML” on a multipurpose form do not matter to her, but she will mark

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an absence as “FML pending” in the attendance system when an employee calls in to report a FML absence. After a month or more passes, Beauchemin will run a report to determine if FML was approved or denied. The attendance record will be updated to show an attendance hit if FML was not approved. PCC considers it to be the employee’s responsibility to turn in the FML request form on time. At some point in time, there was a notation in the “comments” section of the attendance record for the absences Mathews took on March 29-30, 2017, which stated: “ORIG CALLED IN FMLA; NO REQ REC’D.” (Testimony of Beauchemin; Exs. A5, R8, p. 3)

17) On May 6, 2017, Mathews was scheduled to work an overtime shift on a date that was not on her regular schedule. However, she was unable to come to work because her neck was pinching and strained. She called in to PCC’s absence line to report that she would be absent that day for FML reasons. She placed the required paperwork on the desk of the lead in her work area on her next scheduled shift on May 8, 2017. Beauchemin did not see Mathews’s multipurpose form for this absence until June 2, 2017. Since it was an overtime day and she did not show up to work, the multipurpose form is typically just filed, unless the employee is eligible for Oregon sick pay. (Testimony of Mathews, Beauchemin)

18) At some point after the absence taken on May 6, 2017, PCC performed an

“attendance scrub” to check and confirm whether her absences were excused or unexcused. On June 2, 2017, Mathews’s supervisor, Williams, approached her and said that there was a problem with her paperwork and some of it was missing. Mathews spoke to Employee Relations Specialist, Sara Aili. Aili told Mathews that she was pending termination, but she could file an appeal and resubmit the required paperwork. Mathews obtained a copy of her multipurpose form from Beauchemin for the absences taken on March 29-30, 2017. Beauchemin did not have the FML request form for those absences. Beauchemin did not have Mathews’s multipurpose form or the FML form for her absence taken on May 6, 2017.7 (Testimony of Mathews, Beauchemin; Exs. A8, A14)

19) On June 2, 2017, Mathews submitted appeal forms for the absences

taken on March 29-30 and May 6, 2017. Beauchemin received the appeal forms on June 2, 2017, and forwarded them to the benefits department. (Testimony of Mathews, Beauchemin, Schwanz; Exs. A7, R11, R12)

7 Mathews testified that Beauchemin told her that she threw away the multipurpose form for the absence on May 6, 2017, because it was not needed since it was an overtime day. Beauchemin agreed that she did not need the multipurpose form for that absence since Mathews had been scheduled to work an overtime shift, but denied that she threw away the form. Schwanz testified that Mathews told different stories about what happened to the form, and Mathews disputed Schwanz’s version of events. However, it is not necessary for the forum to resolve this issue. Regardless of whether Beauchemin never received this multipurpose form or threw it away, Mathews provided verbal notice of her FML leave by calling in on May 6, 2017, and this was noted in PCC’s electronic attendance record for Mathews. (Ex. R3, p. 3) Therefore, as stated below, someone at PCC should have followed up and requested any required form that the benefits department did not receive.

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20) On the appeal form for the March 29-30 absences, Mathews wrote: “I have left all documentation at lead desk for supervisor signature and have received nothing back, this is where I have always left all docs [sic] per supervisor instructions and have had no previous issues.” On June 7, 2017, Debbie Schwanz from PCC’s benefits department denied the appeal, stating, “FML must be turned in within 3 days of returning to work. It is [employee’s] responsibility to make sure to have request date stamped and be given a copy when handing in.” (Testimony of Mathews, Schwanz; Ex. A7)

21) On the appeal form for the May 6 absence, Mathews wrote: “I have left all

documentation at lead desk for supervisor signature and have not received anything back, this is per supervisor instruction. Also the reason I was not paid for this day was because it was an overtime day for me and I am not on PSL time yet.” Amy Bertsch from PCC’s benefits department denied the appeal on June 6, 2017, stating, “Employee didn’t provide any documentation that would show timely submission of paperwork.” (Testimony of Mathews; Ex. A7)

22) PCC terminated Mathews’s employment on June 7, 2017, under PCC’s

Attendance and Punctuality Policy because she had reached at least seven absence hits. More specifically, after the absence of May 6, 2017, Mathews had a total of 7.5 hits. (Exs. A14, R8)

23) Mathews submitted a grievance form to PCC on June 12, 2017, asking to

retain her employment status, and stating that she was discriminated against for asserting her FMLA rights. Employee Relations Manager, Kym Dressel, sent Mathews a letter on July 3, 2017, stating that Mathews’s requests for family medical leave were untimely and that the issue was “considered closed.” (Exs. R13, R14)

24) Mathews earned $55,407 in wages from PCC in 2016, the year prior to

her termination. In 2017, she only earned $29,353, which consisted entirely of her wages from PCC. After her termination, she continued to seek employment as a radiographer. She received a job offer for a radiographer position on June 25, 2018, which she declined. (Testimony of Mathews; Exs. A24-A25)

25) Mathews felt traumatized after her termination because she felt that she

had done all that PCC required of her. She felt that she was lied to regarding the family medical leave paperwork and she had no reason to believe she had done anything wrong. Mathews was out of work for approximately a year and a half. She had to move out of her home and into her sister’s house, and had to place her belongings in storage. She was no longer self-sufficient and her children teased her about that. She lost sleep, and her weight fluctuated up and down. She felt that she had been an excellent employee and volunteered to work overtime when it was needed. (Testimony of Mathews)

26) Mathews had to pay federal tax penalties in the amount of $436 in 2017

because she no longer had health insurance. (Testimony of Mathews; Ex. A25)

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27) The testimony of Mathews, Khosnaw, Beauchemin, Dressel and Schwanz

was credible as to relevant matters, including their understanding regarding PCC’s policies and the actions taken with regard to Mathews’s requests for OFLA leave that are at issue in this case. Some witnesses gave speculative testimony as to what may have happened to the FML request form after Mathews placed it on the lead desk in her work area. The forum disregarded all of this testimony and is unable to draw any conclusion as to what happened to that paperwork.

28) The testimony of vocational rehabilitation expert Stipe was credible with respect to statistics of job openings available to Mathews based on the skillsets identified in her resume. However, his testimony was not specific as to particular radiographer jobs that Mathews should have applied for, but did not. Accordingly, the forum gave little weight to Stipe’s testimony on the issue of attempts made by Mathews to mitigate lost wage damages.

CONCLUSIONS OF LAW

1) At all times material herein, PCC was an employer as defined in ORS 659A.001(4) and a “covered employer” as defined in ORS 659A.150(1) and ORS 659A.153(1). Mathews was an “eligible employee” of PCC under ORS 659A.150(2). 2) The Commissioner of the Bureau of Labor and Industries has jurisdiction of the persons and of the subject matter herein. ORS 659A.800 - ORS 659A.865. 3) PCC unlawfully denied Mathews leave to which she was entitled, and violated ORS 659A.183(1) and OAR 839-009-0320(3). 4) PCC counted OFLA leave against Mathews when determining her compliance with PCC’s attendance policy in violation of ORS 659A.183(2) and OAR 839-009-0320(4). 5) PCC terminated Mathews because she invoked the provisions of the Oregon Family Leave Act in violation of ORS 659A.183(2). 6) Pursuant to ORS 659A.850, the Commissioner of the Bureau of Labor and Industries has the authority under the facts and circumstances of this case to award Mathews back pay and money damages for emotional and mental suffering she sustained and to protect the rights of Mathews and others similarly situated. The sum of money awarded and the other actions required of PCC in the Order below are an appropriate exercise of that authority.

OPINION

In the Formal Charges, the Agency asserts three violations of Oregon’s Family Medical Leave law. First, the Agency asserts that PCC denied family leave to Mathews

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for her absences on March 29-30 and May 6, 2017. Second, the Agency alleges that PCC counted OFLA leave for those dates against Mathews when determining her compliance with PCC’s attendance policy. Finally, the Agency contends PCC terminated Mathews “for requesting OFLA leave” for those dates. Each alleged violation is discussed below.

DENIAL OF OFLA LEAVE In the Formal Charges, the Agency alleges that PCC unlawfully denied Mathews family leave for March 29-30 and May 6, 2017, citing to ORS 659A.183(1) and OAR 839-009-0320(3). ORS 659A.183(1) states that it is an unlawful practice for a covered employer to “[d]eny family leave to which an eligible employee is entitled under ORS 659A.150 to 659A.186[.]” OAR 839-009-0320(3), provides:

“Pursuant to ORS 659A.183, it is an unlawful employment practice for an employer to deny family leave to an eligible employee or retaliate or in any way discriminate against any person with respect to hiring, tenure or any other term or condition of employment because the person has inquired about OFLA leave, submitted a request for OFLA leave or invoked any provision of the Oregon Family Leave Act.”

To establish a prima facie case, the Agency must show that: 1) PCC was a covered employer as defined in ORS 659A.153(1); 2) Mathews was an eligible employee, i.e., she was employed by a covered employer at least 180 calendar days immediately preceding the date her medical leave began; 3) Mathews had a “serious health condition” as defined in OAR 839-009-0210(14)(e); 4) Mathews used or would have used OFLA leave to recover from or seek treatment for her serious health condition; and 5) PCC did not allow Complainant to use OFLA leave to which she was entitled in the manner required by ORS 659A.150 to 659A.186. In the Matter of WinCo Foods, Inc., 28 BOLI 259, 294 (2007). PCC does not dispute that it was a covered employer or that Mathews was an eligible employee. Additionally, on February 8, 2017, Mathews provided a Certification of Healthcare Provider form signed by her health care provider to PCC for “neck injury – chronic cervical pain.” (Finding of Fact, #8). The certification form noted that she would need intermittent leave or a reduced work schedule “as needed.” Beginning in 2013, PCC had approved multiple requests for Mathews’s intermittent leave for that condition. Although PCC denied in its Answer that Mathews had a serious health condition, PCC did not refute the evidence at hearing that demonstrated that Mathews was unable to work due to pain from her neck injury on the dates in question. Consequently, the forum concludes that Mathews had a serious health condition as defined by OAR 839-009-0210(20)(e). The only remaining issue in dispute is whether PCC denied Mathews use of OFLA leave to which she was entitled in the manner required by law. In its Answer, PCC raised an affirmative defense which alleged that Mathews’s absences were not protected by OFLA because of Mathews’s “own failure to comply

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with reasonable procedures set out by [PCC] in accordance with OAR 839-009-0250(3).” OAR 839-009-0250(3) states:

“When taking OFLA leave in an unforeseeable situation, an employee must give verbal or written notice within 24 hours before or after commencement of the leave. This notice may be given by any other person on behalf of an employee taking unforeseeable OFLA leave. The employer may require written notice by the employee within three days of the employee's return to work.”

PCC agrees that Mathews satisfied the “verbal” notice requirement of OAR 839-009-0250(3) when she called in to report her absences on March 29-30, and May 6, 2017. However, it claims that she did not submit the correct written form in a timely manner and, thus, was not eligible for family medical leave. PCC requires employees to submit “Request for Family Medical Leave” or “FML” form to request that an absence be designated as family medical leave. The instructions that accompany the FML form state that it must be turned in to the Benefits Specialist. Additionally, employees also submit a “Multi-Purpose Request Form” to a Manufacturing Administrator. This form is used for payroll purposes to indicate whether a person is requesting to use vacation pay, sick pay or another type of paid leave. Absences Taken on March 29-30, 2017

Mathews called in to report her absences on March 29-30, 2017, as required by PCC policy. When she returned to work on April 2, 2017, she submitted a multipurpose form for those absences. On the top right hand side of the form, Mathews handwrote the letters “FML.” The multipurpose form was signed by Mathews’s supervisor, Frank Williams, on April 3, 2019. Mathews asserts that she also completed the FML form and placed it on the desk of the “lead” in her department. However, the benefits department did not receive the form within three days of her return to work. On or about June 2, 2017, Mathews became aware that the absences for March 29-30, 2017, were not counted as family medical leave. At that time, she filled out a new FML form for those absences and submitted it. Mathews also submitted a Family Medical Leave Appeal form on June 2, 2017, for the absences taken on March 29-30, 2017. She stated that the reason for the appeal was as follows: “I left all documentation at lead desk for supervisor signature and have received nothing back, this is where I have always left all docs [sic] per supervisor instructions and have had no previous issues.” On June 6, 2017, the Benefits Department denied her appeal, stating, “FML must be turned in within 3 days of returning to work. It is ee’s responsibility to make sure to have request date stamped and given a copy when handing in.” (Finding of Fact, #20) Mathews did not strictly comply with all of the requirements of PCC’s written policy in that she did not transmit the FML request form directly to PCC’s benefits department and did not obtain a date stamped copy showing the date she submitted it. Therefore, PCC asserts it was entitled to deny her leave request because she did not

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comply with the requirement to provide written notice within three days of returning to work. However, although the FML form states that it must be returned to the benefits department, Manufacturing Administrator Beauchemin and Benefits Specialist Schwanz both testified that FML forms are often routed to the benefits department by other individuals, such as supervisors, leads and from Beauchemin herself. Additionally, while an employer may institute procedures for employees to follow when requesting leave, the law also requires that the employer take steps to inform employees when it is aware of a leave request, but has not received all the required paperwork. For example, under OAR 839-009-0250(6), when an employer acquires knowledge that an employee’s leave may be for OFLA qualifying reasons, the employer must provide a written request for information to the employee within five business days to request verifying information.8 In the case of In the Matter of Income Property Management, 31 BOLI 18, 37-38 (2010), the employer became aware that the employee was planning to return to work after her OFLA leave, but might need more time than she had originally planned. The forum found as follows:

“There is no dispute that Complainant was on authorized OFLA leave between January 9 and February 9, 2006. There is no dispute that Respondent knew on January 20, 2006, that Complainant was ‘off work until an unknown date.’ Respondent also knew that on January 24 Complainant was going to be evaluated for possible back surgery that could entail a longer leave period. Respondent knew all of this because on January 20, Complainant gave Respondent verbal notice that she did not know when she was going to return to work, i.e., that she may need more leave than originally authorized. There is nothing in Respondent’s policy manual or OFLA leave policies that suggests Complainant was not following Respondent’s ‘known, reasonable and customary procedures’ when she verbally indicated she may need additional leave. “Even if her statement did not constitute sufficient notice, and the forum finds that it did, Respondent had more than enough reason to believe that Complainant’s continuing absence after February 9 qualified as OFLA leave and at that point had a duty to request additional information and treat the continuing absence as authorized unless Complainant failed to provide the requested information. Instead of requesting additional information, Respondent waited for a few days after Complainant’s release expired and applied it’s ‘no call, no show’ policy to end Complainant’s employment. Respondent’s argument that Complainant had notice she was required to submit medical verification when her release expired is inconsistent with the law. Merely handing Complainant a packet of OFLA papers in December 2005, without any follow-up, and expecting her to determine what her obligations are under OFLA does not satisfy Respondent’s obligation to provide her with written notice each time Respondent requires her to provide medical verification and of the consequences if she fails to do so. OAR 839-009-

8 See also In the Matter of Magno-Humphries, Inc., 25 BOLI 175 (2004), aff’d without opinion, Magno-Humphries, Inc., dba Magno-Humphries Laboratories Incorporated v. Bureau of Labor and Industries, 210 Or App 466, 151 P3d 960 (2007), rev den 342 Or 523, 156 P3d 69 (2007).

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0260(3).”

(Emphasis added.) The forum has also previously found that an employer unlawfully denied OFLA leave to an employee when it was on notice that the employee was a candidate for OFLA leave, but did not seek additional information from the employee to make that determination. In the Matter of Magno-Humphries, Inc., 25 BOLI at 196. Federal cases interpreting the Family Medical Leave Act have reached similar conclusions.9 For example, the Ninth Circuit Court of Appeals has held that “it is the employer’s responsibility, not the employee’s, to determine whether a leave request is likely to be covered” by FMLA. Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1130-31 (2001) (when the employee provided two doctor’s notes regarding her absences, the company was placed on notice that the leave might be covered by FMLA, “and could have inquired further to determine whether the absences were likely to qualify for FMLA protection.”) In this case, there is no question that both Mathews’s supervisor, Williams, and Manufacturing Administrator Beauchemin were aware that Mathews was absent for family medical leave reasons after she called in with verbal notice and wrote “FML” on her multipurpose form. Upon receiving this information, a note was made in the “comments” section of Mathews’s attendance record to indicate that a FML leave request was pending. Moreover, Mathews already had a medical certification on file signed by her medical provider which stated that she needed intermittent medical leave for her neck injury. Accordingly, if PCC was missing the required specific form to complete this leave request, someone should have contacted Mathews and asked her to complete that form. PCC argues that Mathews should have known that the required FML form was missing because she could click on the “attendance” button when she was logged into PCC’s EPMS computer system. However, there was no evidence in the record as to what Mathews’s attendance status was in the EPMS system during March, April and May of 2017. As well, Beauchemin testified that when an employee calls in to report an FML absence, the absence will be initially marked as “pending” for a period of time until she determines that an FML request was not approved by the benefits department, at which time it is changed to an attendance hit. (Finding of Fact, #16) Moreover, as explained above, the law puts the onus on the employer, not the employee, to follow up with the employee when it becomes aware of potential OFLA leave. Accordingly, the forum concludes that PCC violated ORS 659A.183(1) when it failed to designate Mathews’s absences on March 29-30, 2017, as family medical leave. Absence Taken on May 6, 2017 The circumstances of the absence Mathews took on May 6, 2017, are substantially the same as those with respect to the March 29-30 absences in that Mathews called in to report an FML absence, a medical certification was on file for this absence and her attendance record initially reflected that she had called in to request

9 OFLA is to be construed in a manner consistent with similar provisions of the FMLA. ORS 659A.186(2).

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FML leave and the request was pending. The only difference with respect to this absence is that Beauchemin did not have a multipurpose form with the letters “FML” written on it. The forum concludes that regardless of whether the multipurpose form was turned in or received, PCC still had sufficient information that this absence might qualify as OFLA protected leave and someone should have followed up with Mathews to request any required paperwork. Therefore, the forum also concludes that PCC violated ORS 659A.183(1) when it failed to designate Mathews’s absence on May 6, 2017, as family medical leave.10

COUNTING OF OFLA LEAVE UNDER ATTENDANCE POLICY The Agency asserts that PCC counted OFLA leave for March 29-30 and May 6, 2017, against Mathews in determining her compliance with PCC’s attendance policy in violation of ORS 659A.183(2) and OAR 839-009-0320(4). Under ORS 659A.183(2), it is an unlawful employment practice for a covered employer to “[r]etaliate or in any way discriminate against an individual with respect to * * * any other term or condition of employment because the individual has inquired about the provisions of ORS 659A.150 to 659A.186, submitted a request for family leave or invoked any provision” of the Oregon Family Leave Act. OAR 839-009-0320(4) further explains, that it “is an unlawful employment practice for an employer to count OFLA leave against an employee in determining the employee's compliance with attendance policies[.]” In this case, Mathews invoked a protected right under OFLA when she called in and requested that her March 29-30 and May 6, 2017, absences be counted as OFLA leave. PCC made an adverse decision when it counted those absences against Mathews using its attendance points system. Accordingly, the Agency established that PCC violated ORS 659A.183(2) and OAR 839-009-0320(4).

TERMINATION FOR INVOKING OFLA The Agency also alleges that PCC violated ORS 659A.183(2) and OAR 839-009-0320(5), when it “terminated [Mathews] for requesting OFLA leave for March 29, March 30 and May 6, 2017.” Because Mathews was terminated based on PCC’s use of its points based attendance system, the assertion of a violation of ORS 659A.183(2) for the termination is an extension the previous allegation discussed above. In other words, because the OFLA absences were unlawfully counted against Mathews, she accrued enough attendance hit points to result in her termination. Accordingly, the forum finds that PCC’s termination of Mathews also violated ORS 659A.183(2). The allegation of a violation of OAR 839-009-0320(5) is different in that this section of the regulation makes it an unlawful employment practice “to discharge, expel or otherwise discriminate against any person because the person has filed a complaint, testified or assisted in any proceeding in connection with the Oregon Family Leave Act.”

10 There is also evidence in the record that Mathews called in as absent in October and December of 2016 for OFLA protected leave, and that she received an attendance hit for those absences. (See Ex. R8) However, the Agency did not assert a violation for these absences in the Formal Charges.

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At the time of her termination on June 7, 2017, Mathews had not yet filed a complaint, testified of assisted in any proceeding to enforce OFLA. Accordingly, the Agency has not established that her termination violated OAR 839-009-0320(5).

DAMAGES

Lost Wages

Mathews is eligible for a back pay award due to the violations described above. ORS 659A.850. The Formal Charges assert that Mathews is entitled to lost wages of “at least $59,000.” The purpose of a back pay award in employment discrimination cases is to compensate a complainant for the loss of wages and benefits the complainant would have received but for the respondent’s unlawful employment practices. In the Matter of Blue Gryphon, LLC, and Flora Turnbull, 34 BOLI 216, 238 (2015). Back pay awards are calculated to make a complainant whole for injuries suffered as a result of the discrimination. Id. A complainant who seeks back pay is required to mitigate damages by using reasonable diligence to find other suitable employment. Id. In its closing argument, the Agency requested lost wages “as proven” at hearing, and argued that the damages consist of wages Mathews would have received from the date of her termination until a final order is issued. Mathews earned $55,407 in wages from PCC in 2016, the year prior to her termination. In 2017, she only earned $29,353 in wages from PCC and had no further income. The wages earned in 2017 amount to $1,304.58 for each of the 22.5 weeks she worked in that year. Mathews credibly testified that she continued to seek employment as a radiographer, and received a job offer on June 25, 2018, which she declined. Accordingly, the forum finds that she incurred damages from the date of her termination up until the date she declined the job offer, resulting in 54 weeks of lost wages. Therefore, she sustained total lost wages in the amount of $70,447.32 (54 weeks x $1,304.58). Emotional Distress Damages The Agency seeks damages on behalf of Complainant in the amount of at least $150,000 for emotional, mental and physical suffering. Pursuant to ORS 659A.850, the Commissioner of the Bureau of Labor and Industries has the authority to award money damages for emotional, mental, and physical suffering sustained. In the Matter of Frehoo Inc., 36 BOLI 42, 71 (2015). The commissioner has the authority to fashion a remedy adequate to eliminate the effects of unlawful employment practices. Id.

In determining an award for emotional and physical suffering, the forum considers the type of discriminatory conduct, and the duration, frequency, and severity of the conduct. It also considers the type and duration of the mental distress and the vulnerability of the aggrieved persons. A complainant’s testimony, if believed, is

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sufficient to support a claim for mental suffering damages. Id., citing In the Matter of Dr. Andrew Engel, DMD, PC, 32 BOLI 94, 141 (2012).

Mathews testified briefly about the mental and emotional harm she suffered as a result of PCC’s unlawful employment practices. She credibly testified that she felt traumatized after her termination because she felt that she had done all that PCC required of her. She felt that she was lied to regarding the family medical leave paperwork and she had no reason to believe she had done anything wrong. Mathews was out of work for approximately a year and a half. She had to move out of her home and into her sister’s house, and had to place her belongings in storage. She was no longer self-sufficient and her children teased her about that. She lost sleep, and her weight fluctuated up and down. She felt that she had been an excellent employee and volunteered to work overtime when it was needed. In light of the harms she experienced as a result of PCC’s unlawful employment practices, the forum concludes that Mathews sustained emotional distress damages. However, the evidence presented by the Agency at hearing did not include sufficient information to indicate a severe and long lasting level of damages that would support an award of “at least $150,000” as requested in the Formal Charges. The forum’s cases awarding damages at the level requested by the Agency contained substantially more evidence of emotional and mental harm of a greater severity and duration. See, e.g. Bravo Event Service, Inc., & Dan Kor, 36 BOLI 250, 268-69 (2018) ($100,000 awarded to complainant who was sexually harassed and experienced harm that impacted her relationships and how she conducted herself at her current place of employment); In the Matter of Leo Thomas Ryder dba Leo’s BBQ Bar & Grill, 34 BOLI 67, 76-77 (2015) ($120,000 awarded for emotional and mental suffering following a termination); In the Matter of Cyber Center, Inc., 32 BOLI 11, 40-41 (2012) (the forum awarded $120,000 to the complainant who “testified credibly and at length” about the emotional and mental suffered she endured). The record in this matter was not as significantly developed as those in the cases with higher awards. Based on the evidence presented at hearing in this matter, the forum concludes that an appropriate award for the harm experienced by Mathews is $20,000. See, e.g., Lioness Holdings, LLC dba Tan Republic and Peter Lamka, 36 BOLI 229, 248 (2018) (concluding that $20,000 was an appropriate award of emotional distress damages); In the Matter of Hey Beautiful Enterprises, Ltd. and Kimberly Schoene, 34 BOLI 188 (2015); (awarding $10,000 emotional distress damages); In the Matter of Blue Gryphon, LLC and Flora Turnbull, 34 BOLI 216, 239 (2015) (finding that the complainant suffered harm that resulted in $20,000 of emotional distress damages). Out-of-Pocket Expenses In the Formal Charges, the Agency seeks recovery of out-of-pocket expenses incurred by Mathews of “at least $1,000.” Economic loss that is directly attributable to an unlawful employment practice is recoverable from a respondent as a means to eliminate the effects of any unlawful practice found, including actual expenses. In the Matter of Maltby Biocontrol, Inc., Howard Maltby, James Bassett, and Louis Bassett, 33

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BOLI 121, 158 (2014). Mathews credibly testified that she incurred storage unit expenses after her termination when she had to move out of her home and move in with her sister. She did not testify as to the amount of the storage unit expenses, but referred to Ex. A22, which included an itemization of those expenses. However, Ex. A22 was not offered or received into evidence. Additionally, there was no evidence that the storage unit expenses exceeded the monthly housing expenses Mathews paid prior to her termination. Accordingly, the forum declines to award out-of-pocket expenses for the storage unit expenses. Mathews also credibly testified that she had to pay federal tax penalties in the amount of approximately $436 in 2017 because she no longer had health insurance. Accordingly, the forum awards out-of-pocket expenses in the amount of $436.

OTHER REQUESTED RELIEF In its Formal Charges, the Agency asked the forum to issue a cease and desist order against PCC, requiring it to immediately stop all of the unlawful employment practices alleged in the Formal Charges. BOLI’s Commissioner is authorized to issue an appropriate cease and desist order reasonably calculated to eliminate the effects of any unlawful practice found. ORS 659A.850(4). Among other things, that may include requiring a respondent to:

“(a) Perform an act or series of acts designated in the order that are reasonably calculated to: “(A) Carry out the purposes of this chapter; “(B) Eliminate the effects of the unlawful practice that the respondent is found to have engaged in, including but not limited to paying an award of actual damages suffered by the complainant and complying with injunctive or other equitable relief; and “(C) Protect the rights of the complainant and other persons similarly situated[.]”

The forum finds that the Agency’s requested cease and desist order to be appropriate relief in this case.


Agency’s Exceptions I. Lost Wage Damages The Agency takes exception to two portions of the lost wages determination. First, the Agency disagrees with the forum’s conclusion that lost wages damages ended on June 25, 2018, the date Mathews received a new job offer, which she declined. Second, the Agency disagrees with the forum basing its wage calculation on the wages

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Mathews earned in 2016, and asks the forum to use the monthly average of the wages earned in 2017 instead. First, the Agency argues that the forum should not conclude that the lost wage damages ended on the date Mathews turned down a job offer from Element, which was transmitted to her on June 25, 2018. In support of its position, the Agency argues that Mathews turned down the offer for that position because she received a job offer around that same time from PCC, but she was terminated from that new position for “poor work history” immediately after completing the orientation session. The Agency attempted to introduce evidence of the circumstances regarding her 2018 job offer from PCC and PCC’s termination of that offer. Because those issues are the subject matter of another BOLI Contested Case, the forum granted PCC’s objection regarding the introduction of that evidence. The issue of whether it was unlawful for PCC to terminate Mathews from the new position in 2018 will be addressed in the ruling for Contested Case No. 79-19, not in this matter. Accordingly, this portion of the Agency’s exception is OVERRULED. Second, the Agency requests that the forum base its wage calculation on the wages Mathews earned in 2017, instead of 2016. The forum agrees with the Agency’s position that lost wages should be calculated based on the more recent 2017 figures and GRANTS the Agency’s exception, as reflected in the Opinion and Order.11 II. Emotional Distress Damages The Agency also takes exception to the amount of emotional distress damages awarded and requests that the amount be increased to $50,000 from the $20,000 set forth in the Proposed Order. In support of its position, the Agency points to essentially the same facts that were relied on in the Proposed Opinion for calculating the damages, but argues that Mathews’s “descriptions [of her emotional distress] are indicative of damage that occurs over a period of time and damages should be weighted accordingly.” The forum notes that the Mathews’s testimony regarding her emotional distress damages lasted for only approximately one to two minutes, and she provided little detail as to how the termination affected her daily life. Moreover, the forum could not locate any past cases in the range of the $50,000 requested by the Agency which would support such an award in this case. Accordingly, this exception is OVERRULED. PCC’s Exceptions

I. Exceptions to Proposed Findings of Fact PCC requests that the forum “take into account” 11 additional proposed statements of fact, which are discussed below.

11 The Agency requested a calculation of lost wages based on Mathews’s average monthly wages. The forum’s analysis above is substantially the same, but is based on a weekly average, instead of monthly average.

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Several of PCC’s proposed additional facts were already included in the Proposed Order as follows:

The facts in Exception II.a. are addressed in Findings of Fact #9 and #15.

The facts in Exception II.b. are addressed in Finding of Fact #9.

The pertinent information discussed in Exception II.e. is contained in Finding of Fact #16.

The facts in Exception II.f. is addressed in Finding of Fact #18.

The information in Exception II.g. is mentioned in Footnote 10

The facts in Exception II.j. are mentioned in Finding of Fact # 9. Accordingly, Exceptions II.a., II.b., II.e., II.f., II.g. and II.j. are OVERRULED. Exceptions II.c. and II.d. are GRANTED as reflected in revisions to the Findings of Fact above. Exception II.h. pertains to issues that are addressed in Footnote 7 of Finding of Fact #18. The Exception is GRANTED, in part, as reflected in additions to Footnote 7 above, but is otherwise OVERRULED. With Exception I.e., PCC asks the forum to consider that Beauchemin did not think it made sense for Mathews to leave the FML form on a lead desk. However, Beauchemin did not have knowledge of Mathews’s communications with her supervisor and Mathews credibly testified that she was told to place the FML form on the lead desk. Accordingly, Exception II.i. is OVERRULED. In Exception II.k., PCC asks the forum to note that Mathews “never saw a mental health provider because of her termination.” PCC does not indicate where this information may have been in the record, and the forum could not locate a reference to any such testimony.12 The forum notes that the lack of medical consultation or the failure to seek counseling pertains to the severity of mental suffering, not necessarily to its existence. See In the Matter of Cyber Center, Inc., 32 BOLI 11, 41 (2012). Accordingly, Exception II.k. is OVERRULED. II. Conclusions of Law In Section III of PCC’s Exceptions, PCC requests that the forum revise four Conclusions of Law, stating in a conclusory fashion that the “Proposed Conclusions of Law are not supported by substantial evidence in the record, and there is no rational connection between the facts in the record and the legal conclusions.” The reasoning regarding each conclusion is discussed in more detail in the Opinion and in the discussion regarding the remainder of PCC’s Exceptions below. Accordingly, for

12 It is possible this is mentioned at some point in the record, but the forum declines to search the record for this information when the award of emotional distress damages was based on Mathews’s testimony.

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reasons addressed elsewhere in this Final Order, the Exceptions to the Conclusions of Law are OVERRULED. III. Application of Law in the Opinion In this section of its Exceptions, PCC takes issue with two portions of the analysis in the Proposed Opinion. First, in Exception IV.A., PCC states that it “is a clearly erroneous application of Oregon law to find [that PCC] violated OFLA where its policies and procedures are lawful, and [Mathews] admittedly did not follow them.” In making this argument, PCC mischaracterizes the forum’s conclusions. While the forum noted that Mathews did not follow the written instructions to obtain a “date stamped copy” of her FML request so that she had proof that she submitted it, the forum nevertheless concluded that she placed completed FML forms on the desk of the lead in her department, as she had been instructed to do and had done in the past. The credible evidence established that she filled out the form, but that the benefits department did not receive it – not that Mathews failed to fill out the form as PCC argues. Accordingly, Exception IV.A. is OVERRULED. Second, in Exception IV.B., PCC argues that it did not have sufficient notice that it should have followed up with Mathews regarding her leave requests. With respect to the absences of March 29-30, 2017, PCC argues that “something as scant as writing the letters ‘FML’ on a payroll form” does not constitute sufficient notice. In making that argument, PCC ignores the other evidence, in addition to the handwritten FML notation on the multipurpose form, showing that it was aware that those absences were for OFLA reasons, including:

Mathews called in and proved verbal notice that she would be absent for family medical leave reasons.

A notation was made in the comments section of Mathews’s attendance record indicating that a FML leave request was pending.

Prior to the absence, Mathews had a medical certification on file signed by her medical provider stating that she needed intermittent medical leave for her neck injury.

With respect to Mathews’s absence of May 6, 2017, Mathews also called in and provided she was absent for medical leave reasons, the attendance record noted that she had called in to report a FML absence and the medical certification was on file. Given that these absences were entered into the payroll system as OFLA absences, someone should have followed up and notified Mathews that the benefits department did not have the specific form that it needed. PCC should not be able to escape liability when it clearly was aware that Mathews intended to take FML leave for those absences and had provided a certification from her medical provider. Accordingly, this exception is also OVERRULED.

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IV. Damages A. Emotional Distress Damages In Exception V.A., PCC argues that emotional distress damages are not an available award for OFLA violations. In the Formal Charges, the Agency bases its request for damages on ORS 659A.850(4). Notably, the forum has awarded emotional distress or mental suffering damages as a remedy for OFLA violations in the past, pursuant to ORS 659A.850(2) and (4). See, e.g. In the Matter of Income Property Management, 31 BOLI 18, 41 (2010); In the Matter of Gordy’s Truck Stop, LLC, 26 BOLI 234, 252-54 (2005). In contrast, PCC’s Exceptions reference unpublished decisions from the U.S. District Court of Oregon which do not appear to analyze ORS 659A.850(4). As previously stated, the Agency cites to ORS 659A.850(4) in support of the claim for damages, which reads, in part:

“(4) After a hearing under this section, the commissioner shall issue an appropriate cease and desist order against any respondent found to have engaged in any unlawful practice alleged in the complaint. The order must be signed by the commissioner and must take into account the need to supervise compliance with the terms of order. The order may require that the respondent: “(a) Perform an act or series of acts designated in the order that are reasonably calculated to:

“(A) Carry out the purposes of this chapter; “(B) Eliminate the effects of the unlawful practice that the respondent is found to have engaged in, including but not limited to paying an award of actual damages suffered by the complainant and complying with injunctive or other equitable relief; and “(C) Protect the rights of the complainant and other persons similarly situated[.]”

The forum finds that the statute is sufficiently broad to include violations of ORS 659A.183. Accordingly, PCC’s Exception V.A. is OVERRULED. B. Lost Wages and Out-of-Pocket Expenses PCC also objects to the award of lost wages and out-of-pocket expenses. With respect to the amount of lost wages, the forum’s conclusion is based on the wages Mathews earned close in time to her termination, and there was no evidence that her wages would have been reduced or that she would have been terminated for other reasons. Accordingly, this exception is OVERRULED.

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With respect to out-of-pocket expenses, PCC argues that Mathews merely speculated as to the amount of her 2018 tax penalty. Upon review of the record, the forum agrees with PCC as Mathews testified that she “had to assume” and “guess” as to the amount of the 2018 penalty. Accordingly, this exception is GRANTED, as reflected in the Opinion above.

ORDER

A. NOW, THEREFORE, as authorized by ORS 659A.850(2) and ORS 659A.850(4), and to eliminate the effects of Respondent PCC Structurals, Inc.

violations of ORS 659A.183(1),(2) and OAR 839-009-0320(3),(4), and as payment of the damages awarded, the Commissioner of the Bureau of Labor and Industries hereby orders Respondent PCC Structurals, Inc. to deliver to the Administrative Prosecution

Unit of the Bureau of Labor and Industries, 1045 State Office Building, 800 NE Oregon Street, Portland, Oregon 97232-2180, a certified check payable to the Bureau of Labor and Industries in trust for Complainant Michele Mathews in the amount of:

1) SEVENTY THOUSAND FOUR HUNDRED AND FORTY-SEVEN DOLLARS AND THIRTY-TWO CENTS ($70,447.32), less lawful deductions, representing wages lost by Michele Mathews as a result of Respondent PCC Structurals, Inc.’s unlawful employment practice found herein; plus, 2) TWENTY THOUSAND DOLLARS ($20,000), representing compensatory damages for emotional and mental suffering Michele Mathews experienced as a result of Respondent PCC Structurals, Inc.’s unlawful employment practices; plus, 3) FOUR HUNDRED AND THIRTY-SIX DOLLARS ($436) representing out-of-pocket expenses incurred by Michele Mathews as a result of Respondent PCC Structurals, Inc.’s unlawful employment practices; plus, 4) Interest at the legal rate on the sum of NINETY THOUSAND EIGHT HUNDRED AND EIGHTY-THREE DOLLARS AND THIRTY-TWO CENTS ($90,883.32) from the date the Final Order is issued until paid.

B. NOW, THEREFORE, as authorized by ORS 659A.850(2) and 659A.850(4), and to eliminate the effects of Respondent PCC Structurals, Inc.’s unlawful employment practices found herein, the Commissioner of the Bureau of Labor and Industries hereby orders Respondent PCC Structurals, Inc. to cease and desist

from (1) denying family medical leave to eligible employees and (2) discriminating against any employee for invoking the Oregon Family Medical Leave Act.

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_____________________________

In the Matter of

DERRICK'S CUSTOM PAINTING, INC,

RESPONDENT, CASE NO. 62-20


Issued October 13, 2020

_____________________________

SYNOPSIS

Two wage claimants worked for Respondent. They earned a total of $1,387 in

wages for work performed from June 26 - July 8, 2019, and were paid nothing for their work on those dates. The forum awarded the wage claimants a total of $1,387 in unpaid wages. Respondent’s failure to pay claimants was willful and claimants were awarded a total of $7,440 in penalty wages.

_____________________________

The above-entitled case was assigned to Kari Furnanz, designated as Administrative Law Judge (“ALJ”) by Val Hoyle, Commissioner of the Bureau of Labor and Industries for the State of Oregon.

The Bureau of Labor and Industries (“BOLI” or “the Agency”) was represented by Administrative Prosecutor Rachel Diamond-Cuneo, an employee of the Agency. Respondent Derrick’s Custom Painting, Inc. (“DCP”) was represented by its authorized representative, Derrick L. Butcher.

After the Agency issued an Order of Determination (“OOD”), the Agency moved for and was denied summary judgment. After the Agency issued an Amended OOD, the Agency filed a second motion for summary judgment, which the ALJ granted.



1) On July 15, 2019, Danielle Adelle Gravett (“Gravett”) and Devin Dean Reed (“Reed”) filed wage claims and assignments of wages with the Agency. (Agency

1 The Ultimate Findings of Fact required by OAR 839-050-0370(1)(b)(B) are subsumed within the Findings of Fact – The Merits.

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Exs. 1, 2)2

2) The Wage and Hour Division (“WHD”) served an Order of Determination (“OOD”) on DCP on October 8, 2019. The OOD alleged that DCP employed Gravett and Reed, but failed to compensate them for work performed from June 26, 2019, through July 8, 2019. The amount of the alleged unpaid wages was $1,387. The OOD also asserted that DCP owed a total of $7,440 in penalty wages, along with interest, to Gravett and Reed because 30 days elapsed since the wages became due and owing based on ORS 652.140(1)-(3), ORS 652.150(1)-(2) and OAR 839-001-0470(1)-(2). (OOD)

3) DCP’s authorized representative, Derrick Butcher, filed an answer and

request for hearing disputing the wages owed to the wage claimants on October 28, 2019. (Answer to OOD)

4) On February 19, 2020, the forum issued a Notice of Hearing to DCP, the Agency, and Claimants setting the time and place of hearing for July 21, 2020, at 9:30 a.m. at BOLI’s Portland office. Together with the Notice of Hearing, the forum sent a copy of the OOD, a multi-language warning notice, a document entitled “Summary of Contested Case Rights and Procedures” containing the information required by ORS 183.413, a document entitled “Servicemembers Civil Relief Act (SCRA) Notification, and a copy of the forum’s contested case hearings rules, OAR 839-050-000 to 839-050-0445. (Notice of Hearing; OOD)

5) On April 2, 2020, the forum issued an interim order which stated:

“Due to the impact of the COVID-19 outbreak, the forum is taking measures in BOLI contested cases to assist the parties in filing documents and receiving interim orders issued by the forum. BOLI offices may not be staffed for periods of time, and some interim orders may be issued by email only. The Agency indicated by email that it consents to accept filings by email. [DCP] did not respond to the ALJ’s email asking whether the parties would consent to email service.

“The parties in this case may temporarily file documents by email only, without the need to file the original document with BOLI's Contested Case Coordinator. Email filings must be sent to all parties, the ALJ ([email protected]) and BOLI’s Contested Case Coordinator ([email protected]). Since [DCP] has not yet consented to receiving filings by email, the Agency must still send a copy of all filings to [DCP] by mail, in addition to sending the email copy. Parties may still file documents in

the manner provided in BOLI’s contested case rules, but must also provide courtesy email copies to the other parties and the ALJ as it may be some time before mail is delivered or processed. Any documents filed by email must be

2 The citations to Agency exhibits refer to the exhibits that accompanied the Agency’s second motion for summary judgment.

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submitted no later than 11:59 p.m. PDT on the due date in order to be considered timely filed. These provisions will remain in effect until further notice from the ALJ.”

(4/2/2020 Interim Order) 6) On April 14, 2020, the ALJ issued an interim order setting forth requirements for filing case summaries. In addition, the forum amended the Interim Order Re Temporary Procedures of April 2, 2020, to note that Derrick Butcher had responded by email on behalf of DCP to consent to receive email filings and to state that all parties must send and receive filings by email. (4/28/2020 Interim Order)

7) On June 16, 2020, the Agency filed a motion for summary judgment pursuant to OAR 839-050-0150(4). DCP submitted a timely response on June 23, 2020.3 (Agency’s MSJ; Response to MSJ)

8) The ALJ issued an interim order denying the motion on August 10, 2020.

The interim order stated, in pertinent part:

“DCP’S LIABILITY FOR UNPAID WAGES

“In its motion for summary judgment, the Agency asserts that DCP did not

pay Gravett and Reed all wages due to them within the timelines required by ORS 652.140(2)(b). However, the OOD issued by the WHD did not include a citation to ORS 652.140(2)(b)4 and did not cite to any statutes or regulations in the paragraph alleging liability for unpaid wages. Pursuant to ORS 183.415(1), ‘* * * persons affected by actions taken by state agencies have a right to be informed of their rights and remedies with respect to the actions.’ This forum has previously recognized that ‘an OOD, which serves as notice of the allegations made against a respondent by the Agency, must include * * * “[a] reference to the particular sections of the statutes or rules involved[.]”’ In the Matter of Banyan Built Construction Inc., 36 BOLI 271, 286-87 (2018) (quoting ORS 652.332(1)). ‘The absence of adequate notice is prejudicial, in and of itself, to a respondent.’ Id. at 287 (citing Villanueva v. Board of Psychologist Examiners, 179 Or. App. 134, 138, 39 P.3d 238 (2002)). Although DCP's conduct may have constituted violations of Oregon statutes or regulations, the notice provided to DCP was inadequate. Accordingly, the forum has no choice but to deny the Agency’s motion for summary judgment as to whether DCP is liable for unpaid wages owed to Gravett and Reed.

3 The response included emails between Derrick Butcher and the Administrative Prosecutor with settlement discussions. The forum only considered Butcher’s first email when ruling on this motion. The subsequent emails concerned settlement offers between the parties, which the forum does not consider to be admissible evidence. See In the Matter of Christopher Lee Ruston and Christine M. Stahler, 34 BOLI 56, 66 (2015) (citing OEC 408 and noting that settlement offers are not admissible evidence). 4 The OOD included a reference to “ORS 652.140(1)-(3)” in a subsequent paragraph. However, there was no citation to section (2)(b) of ORS 652.140, which is the basis for this alleged violation.

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“DCP’S LIABILITY FOR PENALTY WAGES

“An employer is liable for penalty wages ‘if an employer willfully fails to pay

any wages or compensation of any employee whose employment ceases, as provided in ORS 652.140 and 652.145.’ ORS 652.150(1). Before the forum can award penalty wages, it must first determine that there was a violation of ORS 652.140 or ORS 652.145. Because the forum was unable to conclude that there was a violation of either statute, the forum also has no choice but to deny the Agency’s motion as to whether DCP is liable for penalty wages. “CONCLUSION

“For the reasons explained above, the Agency’s motion for summary

judgment is DENIED.” (8/10/2020 Interim Order)

9) On August 14, 2020, the ALJ issued an interim order setting a new hearing date of October 13, 2020, and revised case deadlines. (8/14/2020 Interim Order)

10) The Agency filed and served5 an Amended Order of Determination

(AOOD) with amendments to add additional citations, but with no other substantive changes to the allegations on August 14, 2020. On September 4, 2020, DCP’s authorized representative filed an answer disputing the amount of the wages owed to Gravett and Reed. (AOOD; Answer to AOOD)

11) On August 24, 2020, the Agency filed a second motion for summary

judgment pursuant to OAR 839-050-0150(4). The forum issued an interim order requiring a response to the motion on August 27, 2020. The interim order stated, in part:

“[DCP] submitted a written response to the Agency’s first motion for

summary judgment and the second motion is nearly identical. Accordingly, the forum will consider the response previously submitted on June 23, 2020, as the response to the second motion for summary judgment. However, if [DCP] chooses, it may also file a response to the second motion. [DCP’s] written response to the second motion, including any opposing affidavits, if applicable, and supporting documents must be filed by Monday, August 31, 2020. OAR

839-050-0150. “PLEASE NOTE: Respondent has the burden of producing evidence on

5 The Agency served DCP with the AOOD by U.S. mail only and did not comply with the additional email service requirement in the forum’s interim order of April 14, 2020. However, DCP confirmed receipt of the AOOD in its answer and, thus, the service provisions of OAR 839-050-0030(1)(a) were satisfied.

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any issue raised in the motion as to which the Respondent has the burden of persuasion at hearing. See ORCP 47C.”

(8/27/2020 Interim Order)

12) DCP submitted a timely response to the second motion for summary judgment on August 31, 2020. (Resp. to Second MSJ)

13) On September 10, 2020, the ALJ issued an interim order granting the Agency’s second motion for summary judgment. The pertinent portion of the ALJ’s interim order is reprinted below:

“SUMMARY JUDGMENT STANDARD

“A motion for summary judgment may be granted where no genuine issue

as to any material fact exists and a participant is entitled to a judgment as a matter of law, as to all or any part of the proceedings. OAR 839-050-0150(4)(B). The standard for determining if a genuine issue of material fact exists and the evidentiary burden on the participants is as follows:

‘ * * * No genuine issue as to a material fact exists if, based upon

the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment. The adverse party has the burden of producing evidence on any issue raised in the motion as to which the adverse party would have the burden of persuasion at [hearing].’

ORCP 47C. In reviewing a motion for summary judgment, this forum draws all inferences of fact from the record against the participant filing the motion for summary judgment and in favor of the participant opposing the motion. In the Matter of Oregon Fir Millwork, Inc., 36 BOLI 2, 4 (2017).

“The record considered by the forum in deciding this motion consists of: (1) the AOOD, argument made in support of the Agency’s second motion for summary judgment, and the exhibits submitted with the Agency's motion; and (2) DCP’s Answer to the AOOD and the argument made in opposition to the motion for summary judgment.

“ANALYSIS

“DCP’S LIABILITY FOR UNPAID WAGES

“In its motion, the Agency asserts that DCP did not pay Gravett and Reed

all wages due to them as required by ORS 652.140(2)(b). ORS 652.140(2)(b) provides that an employee’s ‘wages become due and payable within five days,

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excluding Saturdays, Sundays and holidays, after the employee has quit, or at the next regularly scheduled payday after the employee has quit, whichever event first occurs.’

“In a wage claim case, the Agency must first establish a prima facie case

supporting the allegations of its charging document in order to prevail. PDX Glass, LLC, 35 BOLI 140, 145 (2016). In this case, the elements of the Agency’s prima facie case are: 1) DCP employed the wage claimants; 2) the pay rate upon which DCP and the wage claimants agreed, if other than the minimum wage; 3) the amount and extent of work the wage claimants performed for DCP; and 4) the wage claimants performed work for which they were not properly compensated. In the Matter of Oregon Fir Millwork, Inc., 36 BOLI at 5.

“DCP does not dispute that DCP employed Gravett and Reed, that DCP

agreed to pay Gravett $14 per hour and Reed $17 per hour and that DCP still owes Gravett and Reed wages for work performed. (See DCP’s Answer to AOOD; DCP’s Response to 2nd Motion for Summary Judgment) Accordingly, Elements 1, 2 and 4 are not in dispute. However, DCP disagrees with the amount of hours worked by Gravett and Reed.

“In support of its motion, the Agency provided sworn declarations signed

by Gravett and Reed stating the hours they worked. In addition, the Agency provided copies of text messages sent to ‘Boss, Lynn painting’ (the wife of Derrick Butcher, DCP’s authorized representative) with the hours worked during their shifts. Lynn Butcher acknowledged receiving each text and replied with messages such as ‘okay’ or ‘thanks.’ There were no text messages suggesting a disagreement with the hours Gravett and Reed stated that they worked.

“In response, DCP asserts that the hours claimed by Gravett and Reed

‘overstated their hours of work performed.’ However, DCP did not provide any evidence to contradict the Agency’s evidence of the hours worked. It is the employee’s responsibility merely to show the amount and extent of work done as a matter of just and reasonable inference; once that is done, the burden shifts to the employer to show the precise amount of work or to negate the showing of the employee. In the Matter of Bruce Crisman, dba Nu West Painting Contractors, 32 BOLI 209, 215 (2013). In this case, the wage claimants provided the necessary evidence to create -- at a minimum -- an inference of the hours they worked. DCP did not satisfy its burden to show the amount of work done. It is the employer’s duty to maintain an accurate record of an employee’s time worked. In the Matter of Autoteam, LLC, Global Auto Motors, LLC, and Drive Credit, LLC, 34 BOLI 44, 54 (2015). When the employer produces no records, the forum may rely on evidence produced by the Agency from which ‘a just and reasonable inference may be drawn.’ Id. Therefore, the forum concludes that the evidence is undisputed, and that DCP owes unpaid wages to Gravett in the amount of $588 ($14 per hour x 42 hours) and Reed in the amount of $799 ($17 per hour x 47 hours). Accordingly, the Agency’s motion for summary judgment

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on the issue of unpaid wages is GRANTED.

“DCP’S LIABILITY FOR PENALTY WAGES

“An employer is liable for penalty wages ‘if an employer willfully fails to pay

any wages or compensation of any employee whose employment ceases, as provided in ORS 652.140 and 652.145.’ ORS 652.150(1). An employer is liable for penalty wages when it willfully fails to pay any wages or compensation of any employee whose employment ceases as required by ORS 652.140. ORS 652.150(1). In this case, DCP was required to pay all wages due to the wage claimants no later than ‘five days, excluding Saturdays, Sundays and holidays’ after July 8, 2019, their last day of employment.6 ORS 652.140(2)(b).

“Willfulness does not imply or require blame, malice, perversion, or moral

delinquency, but only requires that that which is done or omitted is intentionally done with knowledge of what is being done and that the actor or omittor be a free agent. See, e.g., In the Matter of Stahler, 34 BOLI 56, 64 (2015).

“When the employee or a person on behalf of the employee submits a

written notice of nonpayment and payment is not made, penalty wages continue for 30 days. ORS 652.150(1)(a). In this case, the WHD sent notices of wage claims to DCP on July 22, 2019. (Ex. 4) This was followed by additional correspondence and the OOD issued on October 3, 2019, all of which requested payment of the wages. (Exs. 5, 6; OOD) DCP admits that it did not pay the wages. (See, e.g., Answer to AOOD)

“From these admissions, the forum infers that DCP was aware that these

wages were owed and finds that DCP’s failure to pay the wage claimants all wages owed at the time of their termination corresponded to DCP’s awareness that those wages were in fact owed. There is no evidence in the record that DCP was not a free agent in its decision not to pay the wage claimants those wages. See In the Matter of Giants, Inc., 33 BOLI 53, 57 (2014). The forum therefore concludes that DCP’s failure to pay the wage claimants all wages due to them at the time of their termination was willful.

“Penalty wages are computed by multiplying a claimant's hourly wage x

eight hours per day x 30 days. ORS 652.150(1) & (2); OAR 839-001-0470(1). Accordingly, Gravett’s penalty wages equal $3,360 ($14 x 8 hours x 30 days) and Reed’s penalty wages total $4,080 ($17 x 8 hours x 30 days). Therefore, the Agency’s motion for summary judgment on the issue of penalty wages is GRANTED.

6 The forum concludes that July 8, 2019, was the last day of employment based on text messages showing hours worked that day. (Ex. 2, p. 11)

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“Further Proceedings

“Because this ruling resolves all of the issues in the AOOD, the hearing

scheduled for October 13, 2020, and all associated deadlines are CANCELED. A Proposed Order incorporating this ruling will be issued as soon as possible, and the parties will have the opportunity to file exceptions to the Proposed Order pursuant to ORS chapter 183 and OAR 839-050-0380.


(9/10/2020 Interim Order) The ALJ’s ruling on the Agency’s motion for summary judgment is hereby CONFIRMED.

14) On September 21, 2020, the ALJ issued a Proposed Order that notified the participants they were entitled to file exceptions to the Proposed Order within ten days of its issuance. DCP timely filed exceptions on September 30, 2020.


1) DCP engaged the personal services of Gravett from June 28 to July 8, 2019, at the agreed rate of $14/hour. Gravett worked 42 hours and earned $588 in wages. Gravett was paid nothing and is owed $588. (9/10/2020 Interim Order) 2) DCP engaged the personal services of Reed from June 28 to July 8, 2019, at the agreed rate of $17/hour. Reed worked 47 hours and earned $799 in wages. Reed was paid nothing and is owed $799. (9/10/2020 Interim Order) 3) At the latest, DCP became aware that these amounts were due to Gravett and Reed on October 8, 2019, when DCP’s registered agent was served with the OOD. More than 30 days have elapsed since that time.

4) ORS 652.150 penalty wages are computed as follows:

Gravett $14 x 8 hours x 30 days = $3,360

Reed $17 x 8 hours x 30 days = $4,080

CONCLUSIONS OF LAW

1) At all times material herein, DCP employed Gravett and Reed. ORS 652.310.

2) BOLI’s Commissioner has jurisdiction over the subject matter and DCP herein. ORS 652.330, 652.332.

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3) DCP owes Gravett and Reed the amounts set out in Findings of Fact ## 1-4 – The Merits, and more than five days have elapsed since Claimants’ employment ceased. ORS 652.140.

4) DCP’s failure to pay Claimants all unpaid, due and owing wages after Claimants’ employment ceased was willful and Claimants are entitled the penalty wages set out in Finding of Fact #4 – The Merits. ORS 652.150. 5) Under the facts and circumstances of this record, and according to the applicable law, BOLI’s Commissioner has the authority to order DCP to pay Gravett and Reed their earned, unpaid, due and payable wages and ORS 652.150 penalty wages, plus interest on all sums until paid. ORS 652.332.

OPINION

All allegations in the Agency's AOOD were resolved in the ALJ's interim order

granting the Agency's motion for summary judgment. No further discussion is required as to the merits.


DCP filed exceptions to the Proposed Order on September 30, 2020. The Agency did not file exceptions. DCP’s exceptions stated that DCP did not understand how the hearing could be canceled and that the findings were inaccurate. The forum’s interim order of August 27, 2020, described how to respond to the Agency’s motion and present opposing evidence. Additionally, the interim order of September 10, 2020, explained that the Agency’s motion was granted because there was no admissible evidence on the record of a material factual dispute. Because the ruling on the motion addressed all issues in the AOOD, there was no need for a hearing and it was canceled. Accordingly, because the issues raised in DCP’s exceptions were already addressed by the forum, the exceptions are DENIED.

ORDER

NOW, THEREFORE as authorized by ORS 652.140, ORS 652.150, and ORS

652.332, and as payment of unpaid wages and penalty wages, the Commissioner of the Bureau of Labor and Industries hereby orders Respondent Derrick’s Custom Painting, Inc., to deliver to the Administrative Prosecution Unit of the Bureau of Labor and

Industries, 1045 State Office Building, 800 NE Oregon Street, Portland, Oregon 97232-2180, the following:

(1) A certified check payable to the Bureau of Labor and Industries in trust for Danielle Adelle Gravett in the amount of THREE THOUSAND NINE HUNDRED FORTY-EIGHT DOLLARS ($3,948), plus interest at the legal rate on that amount

from the date the Final Order is issued until paid.

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(2) A certified check payable to the Bureau of Labor and Industries in trust for Devin Dean Reed in the amount of FOUR THOUSAND EIGHT HUNDRED SEVENTY-NINE DOLLARS ($4,879), plus interest at the legal rate on that

amount from the date the Final Order is issued until paid.