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WSHB EPL Case Law Update: Baker v. Maricle Industries, Inc., et al.

March 28, 2017

Background

A Federal District Court in Oregon recently held that a corporation’s president may face personal liability for aiding and abetting an unlawful employment practice and for retaliating against an employee who opposes an unlawful employment practice.

Plaintiff, Justin Baker, worked as a water technician for ServiceMaster Cleaning Specialists from August 2013 to October 2014. Baker had previously served in Afghanistan and had been diagnosed with PTSD after his discharge from the military.

Baker claimed that on October 24, 2014, he overheard a conversation between his project manager, Andrew McCabe, and ServiceMaster’s president, Scott Maricle, during which Maricle made offensive remarks regarding Baker’s PTSD. Later that day, Maricle and McCabe called Baker into a meeting, and he was either terminated or resigned during that meeting. Baker claimed that Maricle continued to make disparaging remarks after the termination of his employment.

Baker filed suit against ServiceMaster and Maricle. As against Maricle, he asserted causes of action for retaliation (ORS 659A.030(1)(f)) and aiding and abetting an unlawful employment practice (ORS 659A.030(1)(g)).

Maricle moved for summary judgment on several grounds, including that ORS 659A.030(1)(f) does not support liability for retaliation against individuals and that plaintiff could not assert a claim against him as a matter of law.

Aiding & Abetting Claim

ORS 659A.030(1)(g) makes it unlawful “[f]or any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter[.]”

Generally, employees with executive authority have not been held liable for aiding and abetting because they are acting on behalf of the corporate employer when they make employment decisions. However, the Baker court held that the facts of this case did not warrant that result. Here, the court held that there was a question of fact as to whether Maricle acted outside the scope of his authority by acting for his personal benefit, rather than for the benefit of the corporation. If Maricle acted outside the scope of employment, then he acted in his personal capacity, not as an agent of the corporation, and thus became a third party to the employment relationship. The fact that Maricle was the president of the corporation did not shield him from liability as an aider and abettor.

Retaliation

The court also held that Maricle could be held personally liable for retaliation under ORS 659A.030(1)(f). That section makes it unlawful “[f]or any person to discharge, expel or otherwise discriminate against any other person because that other person has opposed any unlawful practice[.]”

The court rejected Maricle’s argument that the legislative history of ORS 659A.030(1)(f) suggested that the phrase “any person” should be interpreted to mean “employers.” The court held that the plain wording of the statute did not support Maricle’s argument, and Maricle failed to present “highly probative” evidence to support any other reading of the statute. On that basis, the court held that Maricle could be held personally liable for retaliation.

Why This Case Is Important

Executive decision makers typically rely on reports from managers, as well as their own observations and judgments, in making employment decisions. Based on the Baker court’s ruling, decision makers should clearly document the reasons for their employment decisions, making it clear that the decision is not based on any discriminatory animus and is not in retaliation for an employee’s protected act in order to avoid claims of personal liability against the decision maker.

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