No. 231 April 17, 2024 1

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

Will McCLUSKY,

Plaintiff-Appellant,

v.

CITY OF NORTH BEND, 

an Incorporated City of the State of Oregon,

Defendant-Respondent.

Coos County Circuit Court

18CV20329; A177073

Andrew E. Combs, Judge.

Argued and submitted April 10, 2023.

Quinn E. Kuranz argued the cause for appellant. Also on 

the briefs was The Office of Q.E. Kuranz, AAL, LLC.

Tracy M. McGovern argued the cause for respondent. 

Also on the brief were Travis A. Merritt and Frohnmayer, 

Deatherage, Jamieson, Moore, Armosino & McGovern, P.C.

Before Ortega, Presiding Judge, Powers, Judge, and 

Hellman, Judge.

ORTEGA, P. J.

Judgment of dismissal as to Claims 1 and 2 reversed and 

remanded; otherwise affirmed.
2 McClusky v. City of North Bend
Cite as 332 Or App 1 (2024) 3

ORTEGA, P. J.

This case is before us for the second time on plaintiff’s appeal from a judgment dismissing his claims of 

unlawful employment discrimination and whistleblowing. 

Plaintiff assigns error to the trial court’s grant of summary 

judgment for defendant City of North Bend as to all four of 

his claims on various grounds.1 We conclude that the trial 

court erred in granting summary judgment for defendant 

as to Claim 1 (ORS 659A.030(1)(f)), because there is a genuine issue of material fact as to whether plaintiff’s protected 

activity was a substantial factor in defendant’s decision to 

terminate his employment. We also conclude that the trial 

court erred in granting summary judgment for defendant 

as to Claim 2 (ORS 659A.199), because plaintiff’s conduct 

constituted a “report” of an alleged violation of state law 

within the meaning of ORS 659A.199 and there is a genuine issue of material fact as to plaintiff’s subjective good 

faith belief in making that report. We further conclude that, 

on this record, defendant may be liable as plaintiff’s joint 

employer under ORS 659A.199 and that the coemployer’s 

alleged biased motive may be imputed to defendant under a 

“cat’s paw” theory. Finally, we conclude that the trial court 

did not err in granting summary judgment for defendant as 

to Claim 3 (ORS 659A.203(1)(b)(A), (B)) and Claim 4 (ORS 

659A.203(1)(d)), because plaintiff failed to produce evidence 

that he reported illegal or other inappropriate conduct by 

defendant North Bend. We therefore reverse the judgment of 

dismissal as to Claims 1 and 2, remand for further proceedings, and otherwise affirm.

1 Plaintiff raises three assignments of error, and only the first identifies the 

precise legal ruling (the grant of summary judgment for defendant as to his first 

claim) he challenges on appeal; the second and third identify various “holdings” 

of the trial court in its summary judgment order, which we understand to challenge the court’s grant of summary judgment for defendant as to plaintiff’s second, third, and fourth claims. ORAP 5.45(3) (“Each assignment of error must 

identify precisely the legal, procedural, factual or other ruling that is being challenged.”); see, e.g., Marc Nelson Oil Products, Inc. v. Grim Logging Co., 199 Or App 

73, 75 n 1, 110 P3d 120, adh’d to as modified on recons, 200 Or App 239, 115 P3d 

935 (2005) (“Assignments of error *** are to be directed against rulings by the 

trial court, not against components of the trial court’s reasoning or analysis that 

underlie that ruling.”).
4 McClusky v. City of North Bend

I. STANDARD OF REVIEW

The trial court must grant a motion for summary 

judgment when

“the pleadings, depositions, affidavits, declarations and 

admissions on file show that there is no genuine issue as 

to any material fact and that the moving party is entitled 

to prevail as a matter of law. *** 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 trial.”

ORCP 47 C. No genuine issue of material fact exists when 

“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.” Id. We review an order granting 

summary judgment for errors of law, viewing the facts and 

all reasonable inferences that may be drawn from them in 

favor of the nonmoving party, who in this case is plaintiff. 

Boyd v. Legacy Health, 318 Or App 87, 88-89, 507 P2d 715 

(2022). We state the facts in accordance with that standard.

II. FACTS

We begin with the relevant undisputed facts recounted

in our prior opinion:

“[T]his litigation arises from North Bend’s administrative 

involvement in plaintiff’s employment and termination as 

Technology Systems Manager for the Coos County Library 

Service District (CCLSD). The CCLSD is governed by 

a Master Plan, which was approved by the Coos County 

commissioners in 1992 and provides that each city retains 

control of daily library operations and is responsible for 

administering its own library services. The Master Plan 

mandates that shared library services (catalogues, databases, information technology services, outreach programs, 

etc.) are administered by the CCLSD Extended Services 

Office (ESO).

“To manage CCLSD activities, Coos County contracts 

through an intergovernmental agreement with the City of 

Coos Bay. Under that agreement, Coos Bay Public Library 

houses the ESO and employs the ESO Director. The director reports to the CCLSD Advisory Board, who is appointed 

by the Coos County Board of Commissioners.
Cite as 332 Or App 1 (2024) 5

“In support of the CCLSD, the cities of Coos Bay and 

North Bend entered into an intergovernmental agreement. 

Under the terms of that agreement, North Bend agreed to 

hire the CCLSD Technology [Systems] Manager and house 

that position in the City of North Bend’s public library. The 

City of Coos Bay reimbursed North Bend for 100 percent 

of those costs (salary, benefits, and office overhead costs) 

using the ESO budget.”

McClusky v. City of North Bend, 308 Or App 138, 139-40, 481 

P3d 431 (2020), rev den, 368 Or 37 (2021) (McClusky I).

North Bend hired plaintiff as CCLSD Technology 

Systems Manager in 2015. North Bend managers and human 

resources representatives worked with CCLSD employees, including the ESO director, to evaluate and supervise 

plaintiff. In April 2017, plaintiff received approval from the 

CCLSD Advisory Board to purchase an email server with 

budget funds. Minutes from that meeting also show that 

Jennifer Croft was set to start as the CCLSD ESO director 

later that month.

In June, Croft sent a memo to Coos County library 

directors and plaintiff announcing her plan to migrate 

CCLSD’s network to G Suite, a cloud-based service by Google 

that provides email hosting, among other networking applications. The migration meant abandoning plaintiff’s plan 

to purchase an in-house email server and contracting with 

third parties to provide services on an ongoing basis. In 

July, plaintiff attended an IT meeting with Croft, North 

Bend Library Director Gary Sharp, North Bend Human 

Resources (HR) Manager and City Recorder Rene Collins, 

and another IT employee, who openly recorded the meeting. 

During the meeting, plaintiff expressed concerns to Croft 

about implementation of the G Suite migration and asked 

Croft if she had sought the approval of the CCLSD Advisory 

Board for the migration. Croft responded that she had called 

the board chair and had sent out emails to inform the board 

of her plan—which she maintained was within the scope of 

her authority—but confirmed that “we did not have an official meeting.” Plaintiff expressed his view that, “according 

to the Master Plan and bylaws, this stuff is supposed to go 

up to the board in an official meeting to be talked about and 

approved before moving forward on it” and that Croft was 
6 McClusky v. City of North Bend

“bypassing * ** the laws of the district.” Croft proceeded 

with the plan to migrate to G Suite with an initial launch 

on July 31.

In mid-August, what the parties refer to as “the 

Big Book of IT incident” occurred. “The Big Book of IT” is 

a binder that contains extensive information about CCLSD 

computer network and IT infrastructure. Croft directed 

plaintiff to turn over the Big Book of IT so that she could 

give it to an outside contractor she had hired to perform 

work on CCLSD systems in the following weeks while plaintiff was out of the office. Plaintiff was working onsite at the 

Bandon library and initially agreed to drop off the book to 

Croft when he returned to Coos Bay. Later that afternoon, 

however, plaintiff sent a text message to Croft, informing 

her that he would not be handing over the Big Book of IT 

and that she would need to first seek approval from the 

CCLSD Advisory Board. Plaintiff then contacted two library 

directors to inform them of the risks of giving an outside 

contractor the highest levels of access to CCLSD’s servers, 

service accounts, and patron information. Croft and Collins, 

the North Bend HR manager, together called plaintiff and 

told him that, if he did not have the book on Croft’s desk by 

6:00 p.m., he would face disciplinary action. Plaintiff complied and then went on leave until September 5.

On August 25, plaintiff filed a complaint with the 

Bureau of Labor and Industries (BOLI) alleging, among 

other things, that he had complained to Sharp and other 

library directors about a lack of policies for his position, 

misappropriation of budget funds, and violations of record 

retention rules, and that North Bend had retaliated against 

him by changing his duties, taking control of the IT department, and making changes without communicating them.

On August 29, Croft emailed Sharp her proposed 

edits on plaintiff’s drafted employee performance review. 

The draft review, dated September 5, meant to be signed by 

Croft, Sharp, and plaintiff, included a “Work Improvement 

Plan” in which plaintiff’s work would be “closely monitored” 

for 90 days and required him to demonstrate “immediate 

and sustained improvement” in specific areas.
Cite as 332 Or App 1 (2024) 7

On September 1, North Bend received a copy of 

plaintiff’s August 25 BOLI complaint. That same day, North 

Bend also received a letter from an attorney on behalf of 

plaintiff providing notice of his BOLI complaint and warning that “any further action taken against [plaintiff would] 

be considered as retaliation for his legitimate complaints” 

constituting whistleblowing, even if the BOLI complaint 

was ultimately deemed unfounded.

When plaintiff returned to work on September 5, 

he received a “Notice of Potential Termination” signed by 

North Bend City Administrator Terrence O’Connor, Croft, 

and Sharp. The notice stated that plaintiff’s conduct surrounding the Big Book of IT incident “violates the City of 

North Bend employment policies and falls well below the 

expectations that we have for the IT Manager position.” 

Plaintiff submitted a written response, outlining his version 

of the events surrounding the Big Book of IT incident.

Croft recommended that North Bend terminate 

plaintiff, and, on September 6, O’Connor issued a “Notice 

of Termination” on North Bend letterhead, in which he 

explained that plaintiff had failed to show that he understood how his conduct was improper or provide a reason to 

believe that he would be able to improve his performance or 

his strained work relationships. O’Connor verbally informed 

plaintiff that, because of his BOLI complaint and attorney 

letter, O’Connor could see that plaintiff was not interested 

in repairing his work relationships and was only interested 

in monetary gain.

Plaintiff asserted four claims against defendant 

North Bend: discrimination under ORS 659A.030(1)(f) 

(Claim 1), whistleblowing under ORS 659A.199 (Claim 2), 

and public employee whistleblowing under ORS 659A.203

(1)(b)(A), (B) (Claim 3) and ORS 659A.203(1)(d) (Claim 4). 

The trial court granted defendant’s motion for summary 

judgment after it concluded that defendant was not plaintiff’s “employer.” In McClusky I, we held that, “as a matter of 

law, North Bend reserved the right to control plaintiff and 

was his employer for purposes of ORS chapter 659A.” 308 

Or App at 145. On remand, defendant again moved for summary judgment on various grounds. The trial court granted 
8 McClusky v. City of North Bend

summary judgment in favor of defendant on all four claims 

and entered a general judgment of dismissal. This appeal 

followed.

III. ANALYSIS

A. Claim 1: Discrimination - ORS 659A.030(1)(f)

Plaintiff’s first claim alleges a violation of ORS 

659A.030(1)(f), which provides that “[i]t is an unlawful 

employment practice * * * [f]or any person to discharge, 

expel or otherwise discriminate against any other person 

because that other person has opposed any unlawful practice, or because that other person has filed a complaint 

** *.” In granting summary judgment for defendant on that 

claim, the trial court found that plaintiff’s “discharge was 

the result of his insubordination and unprofessional conduct 

surrounding the Big Book of IT incident.” The court therefore concluded that “no objectively reasonable juror could 

return a verdict for plaintiff on this claim.”2

On appeal, plaintiff argues that the trial court 

erred in granting summary judgment for defendant on this 

claim because there is a genuine issue of material fact as to 

causation between his protected activity and termination. 

Plaintiff points to the evidence that, as of August 29, North 

Bend’s plan was for plaintiff to return to work under a “Work 

Improvement Plan,” that North Bend terminated plaintiff 

five days after receiving his BOLI complaint and attorney 

letter, and that O’Connor told plaintiff that his BOLI complaint and attorney letter demonstrated that plaintiff was 

not interested in repairing his working relationships.

We agree with plaintiff that there is a genuine issue 

of material fact as to whether his protected activity was a 

substantial factor in North Bend’s decision to terminate 

2 The trial court further found that CCLSD and defendant were plaintiff’s 

joint employers but that, to the extent that this claim alleges that North Bend 

should be held liable for any unlawful acts by CCLSD, “North Bend did not know 

and should not have known about any such unlawful acts.” We do not understand 

plaintiff to advance a theory as to this claim that defendant should be jointly 

liable for CCLSD’s conduct. Rather, we understand his theory for this claim to be 

that defendant is directly liable for O’Connor’s conduct as defendant’s agent. We 

therefore do not address defendant’s argument regarding joint employer liability 

as to this claim.
Cite as 332 Or App 1 (2024) 9

his employment and that the trial court erred in granting 

summary judgment for defendant on that basis. “Proof of a 

causal connection between protected conduct and a materially adverse action can be established (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment * * * or (2) directly, through evidence 

of retaliatory animus directed against a plaintiff by the 

defendant.” Meyer v. Oregon Lottery, 292 Or App 647, 681-82, 

426 P3d 89 (2018) (emphases in original; internal quotation 

marks and citation omitted). “Oregon case law has not identified how ‘very close’ in time the discriminatory treatment 

must follow the protected activity such that, by itself, the 

timing raises an issue of fact regarding causation.” Id. at 

682. But we have concluded that less than one month was 

sufficient to establish causation. Medina v. State of Oregon, 

278 Or App 579, 589-90, 377 P3d 626 (2016) (concluding that 

a reasonable trier of fact could infer from the timing of the 

disciplinary actions that they were the result of the plaintiff’s complaint).

Here, plaintiff produced indirect evidence of a 

causal connection between his protected conduct and his 

termination by showing that he was terminated five days 

after North Bend received his BOLI complaint and attorney 

letter. Plaintiff also produced direct evidence of a causal connection between his protected conduct and his termination 

by showing a retaliatory animus directed against plaintiff 

by defendant: that O’Connor told him that the BOLI complaint and attorney letter demonstrated that plaintiff was 

not interested in repairing his working relationships, which 

is one basis the Notice of Termination stated for terminating him.

In urging a different result, defendant first argues 

that plaintiff’s activity was not protected by ORS 659A.030 

because his BOLI complaint was not made in good faith. 

However, defendant did not make that argument to the trial 

court as a basis for granting summary judgment. We therefore do not address that argument further.

Defendant next argues that plaintiff failed to 

establish causation because he conceded that he was fired 

for the Big Book of IT incident. But we understand plaintiff 
10 McClusky v. City of North Bend

to have conceded that the Big Book of IT incident is what 

led Croft to recommend that defendant terminate plaintiff. The summary judgment record, however, reflects that 

O’Connor made the ultimate decision to terminate plaintiff. 

And whether plaintiff’s BOLI complaint and attorney letter 

were a substantial factor in that decision is a factual question for the jury for the reasons explained above. Plaintiff’s 

concession has no bearing on that conclusion. Thus, the trial 

court erred in granting summary judgment to defendant on 

Claim 1.

B. Claim 2: Whistleblowing - ORS 659A.199

Plaintiff’s second claim alleges a violation of ORS 

659A.199(1), which provides that

“[i]t is an unlawful employment practice for an employer to 

discharge, demote, suspend or in any manner discriminate 

or retaliate against 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.”

The trial court granted summary judgment for 

defendant on that claim for four independent reasons:

1) plaintiff failed to produce evidence that he ever made a 

“report” of a violation; 2) plaintiff’s “report” concerned violation of CCLSD’s Master Plan and bylaws, which are not 

“state or federal law, rule[s] or regulation[s]”; 3) plaintiff’s 

“report” was not made “in good faith”; and 4) North Bend 

should not be held liable for any unlawful acts by CCLSD 

because “North Bend did not know and should not have 

known about any such unlawful acts” and because an 

imputed motive or “cat’s paw” theory did not apply, given 

that the allegedly biased employee (Croft) was not subordinate to the decision maker (O’Connor) or employed by the 

same entity.

On appeal, plaintiff argues that the trial court 

erred in granting summary judgment for defendant on his 

second claim because there is a genuine issue of fact that he 

in good faith reported violations of state law to Croft, specifically, that plaintiff told Croft that her admission that she 

decided to migrate to G Suite without first seeking approval 
Cite as 332 Or App 1 (2024) 11

from the Advisory Board in an official meeting violated public meetings law. See ORS 192.610 - 192.705. Plaintiff also 

argues that the trial court erred in granting summary judgment for defendant on this claim because defendant may 

be liable for Croft’s conduct under three alternative theories: defendant and CCLSD were plaintiff’s joint employers, 

Croft’s discriminatory motive may be imputed to defendant 

under the “cat’s paw” doctrine, and North Bend aided and 

abetted Croft’s unlawful discriminatory motive.

We conclude that plaintiff’s conduct constituted a 

“report” of a violation of state law within the meaning of ORS 

659A.199 and that there is a genuine issue of material fact 

as to plaintiff’s subjective good faith belief in making that 

report. We further conclude that, on this record, defendant 

may be liable for Croft’s conduct under a joint employer or 

an imputed motive theory. We reject without further discussion plaintiff’s argument that aiding and abetting is a viable theory on this record because, as he concedes, he failed 

to plead that theory of liability. See ORS 659A.030(1)(g)

(“It is an unlawful employment practice *** [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 or to attempt to do so.”). The trial court therefore erred in granting summary judgment for defendant on 

this claim.

We begin with whether plaintiff’s conduct constituted a “report” of a violation. Our decision in Bjurstrom 

v. Oregon Lottery, 202 Or App 162, 120 P3d 1235 (2005), is 

instructive. There, we construed the term “disclosure” in the 

public employee whistleblowing statute, ORS 659A.203(1)(b),

to determine whether it protected disclosure within the 

agency or department, as opposed to the popular conception 

of a “whistleblower” as one who discloses internal misconduct to an external entity. We first noted that the common 

meaning of “disclose” is “to make known” or to “open up to 

general knowledge.” Id. at 169 (quoting Webster’s Third New 

Int’l Dictionary 645 (unabridged ed 2002)). We then observed 

that the statute protects disclosure “without limitation” and 

that statutory context “contemplated the possibility of retaliation against employees who voiced their complaints either 
12 McClusky v. City of North Bend

within the agency or department, or to others outside.” 

Id. After reviewing legislative history that confirmed our 

understanding of the text and context, we concluded that 

“disclosures” under ORS 659A.203(1)(b) “include reports of 

wrongdoing within an agency or department.” Id. at 171. 

Applying that construction to the plaintiff’s conduct in that 

case, we held that instances where the plaintiff “voiced his 

opinions” about mismanagement and personnel issues in 

the workplace “to his coworkers and supervisors” were “disclosures” but ultimately were not protected whistleblowing 

activity because none concerned “mismanagement.” Id. at 

171-75.3

In Folz v. ODOT, 287 Or App 667, 404 P3d 1036 

(2017), rev den, 362 Or 482 (2018), we applied Bjurstrom’s 

understanding of “disclosures” and extended it to “reports” 

within the meaning of ORS 659A.199.4 In Folz, the plaintiff was a human resources manager who supervised and 

advised regional human resources managers. Id. at 669. 

We concluded that the plaintiff’s conduct of “expressing her 

concerns regarding the propriety of” and “proceeding with” 

a proposed plan to discipline an employee to other human 

resources decision makers was neither a “report” nor a “disclosure” protected by the whistleblowing statutes. Id. at 

669-74. We reasoned that “the most she ha[d] established is 

that she gave advice about an evolving personnel matter as 

part of her day-to-day responsibilities as a human resources 

professional and that she expressed those opinions to other 

participants in that decision-making process as part of that 

process.” Id. at 675 (emphasis in original). We emphasized 

that, “[a]t the time of those discussions, no decision had been 

reached as to how the situation would be handled; that was 

the point of involving plaintiff in the discussions.” Id. at 674.

3 We also rejected the plaintiff’s “occasional general references” that his disclosures concerned the defendant’s violation of “rules” because he did “not identify 

with any particularity what statements he is referring to or what rules [defendant] supposedly violated” or “develop any argument on that subject.” Id. at 173.

4 Although we did not separately construe the term “report[]” in ORS 

659A.199, which was enacted after our decision in Bjurstrom, see Or Laws 2009, 

ch 524, § 2, we understand that term to be a synonym for “disclosure,” given 

that Bjurstrom construed “disclosure” to be a “report” and the plain meaning of 

“report” is synonymous with “disclosure.” See Webster’s at 1925 (defining the verb 

“report” as “to give an account of : narrate, relate, tell”).
Cite as 332 Or App 1 (2024) 13

Returning to the facts of this case, we conclude that 

plaintiff “reported” wrongdoing within CCLSD for purposes 

of ORS 659A.199. At the July 2017 IT meeting, which was 

attended by two of his supervisors as well as another IT 

employee, plaintiff voiced his opinion that Croft had violated 

the CCLSD Master Plan and bylaws by failing to seek and 

gain the Advisory Board’s approval at an official public meeting to migrate to G Suite. Although plaintiff also expressed 

concerns with the propriety of the G Suite migration and 

proceeding with that plan as part of the process of advising 

Croft on its implementation, he expressed additional concerns that Croft had made that decision in violation of the 

CCLSD Master Plan and bylaws. Thus, while the purpose 

of the IT meeting was to involve plaintiff in the discussion 

about implementing the G Suite migration, and plaintiff 

expressed his opinion about the merits of the decision itself 

and did so as part of his day-to-day responsibilities as an 

IT Manager, unlike in Folz, plaintiff also expressed concern 

that Croft had failed to follow the necessary procedure to 

make that decision in the first place—a decision that was 

already final and did not involve plaintiff. Further, although 

it was part of plaintiff’s job duties to advise Croft on IT matters, it was not part of his job duties to advise Croft on her 

compliance with the CCLSD Master Plan or bylaws, a point 

that Croft immediately conveyed in response to his report, 

by retorting, “And I’m telling you that you’re an IT manager.” In sum, this case is distinguishable from Folz because 

the alleged violation had already occurred, it concerned a 

matter that was outside the scope of plaintiff’s day-to-day 

responsibilities as IT Manager, and plaintiff did not voice 

his opinion about the alleged violation to his supervisors 

and coworkers as part of the decision-making process.

We next turn to whether plaintiff “in good faith 

reported information that the employee believes is a violation of a state ** * law.” “ORS 659A.199 applies a subjective, 

good faith standard to employees who report perceived violations of the law.” Boyd, 318 Or App at 98 (emphasis added); 

see also Hall v. State of Oregon, 274 Or App 445, 453, 366 

P3d 345 (2015) (explaining that ORS 659A.199’s express 

“[r]eference to the employee’s belief indicates a subjective, 

good faith standard”). Thus, “an employee has engaged in 
14 McClusky v. City of North Bend

protected activity under that provision if the employee has 

reported information that [they] subjectively believe[] is a 

violation of a state or federal law, rule, or regulation and 

has a good faith basis for that belief.” Boyd, 318 Or App at 

98-99. We look to what the employee knew at the time of the 

report, and it is irrelevant whether hindsight proves that a 

violation of law in fact occurred. Hall, 274 Or App at 454-55.

Whether an employee held a subjective good faith 

belief regarding a violation of law at the time of the report 

is a question of fact. Id. (“[W]e conclude that plaintiff presented evidence to create a genuine issue of material fact 

that he acted with subjective, good faith for purposes of 

ORS 659A.199.”); Boyd, 318 Or App at 98-99 (applying that 

standard). In Boyd, the plaintiff reported a nurse’s charting errors to his manager. 318 Or App at 98. On appeal, 

the defendant argued that that report amounted only to a 

general complaint regarding the nurse’s performance and 

not a “good faith report[ of] information that the employee 

believe[d was] evidence of a violation of a state or federal law, 

rule or regulation.” Id. The plaintiff identified several state 

administrative rules establishing nursing standards that 

the nurse’s charting errors might violate, and the defendant 

did not dispute that charting errors would fall short of nursing standards established in those administrative rules. 

Id. at 99. We therefore concluded that the plaintiff’s testimony that he had found inaccurate entries in a patient’s 

chart made by the other nurse was sufficient for a factfinder 

to reasonably conclude that the plaintiff had subjectively 

believed that the nurse’s performance violated state administrative rules and that he had a good faith basis in fact 

and law for that belief, even if it were to ultimately prove 

untrue. Id. In other words, a plaintiff’s report need not identify the specific provisions of law that have been violated, 

but rather articulate facts that may constitute a violation of 

law. Cf. Walker v. Oregon Travel Information Council, 367 Or 

761, 783, 484 P3d 1035 (2021) (explaining that under ORS 

659A.203(1) a plaintiff “must set forth facts that would support an objectively reasonable belief that a violation [of law] 

has occurred,” a court makes a “threshold determination 

that there is a substantial nexus between the complained-of 

conduct and a law or public policy identified by the court or 
Cite as 332 Or App 1 (2024) 15

the plaintiff,” and “the jury then must determine whether 

the plaintiff actually held such a belief and, if so, whether 

that belief was objectively reasonable” (internal quotation 

marks, citation, and emphasis omitted)).

Here, we conclude that plaintiff produced evidence 

sufficient to create a genuine issue of material fact as to 

whether he subjectively believed that Croft violated state 

law at the time of his report and that he had a good faith 

basis in fact and law for that belief. Plaintiff reported to 

Croft that she had violated the CCLSD Master Plan and 

bylaws by contracting with a third party to migrate to G 

Suite without first seeking and gaining approval from the 

Advisory Board. The CCLSD Master Plan provides that the 

Advisory Board has the duty to “[d]etermine and evaluate 

those shared countywide cooperative services, which are contracted, and the budget for those services,” and to “[r]eview

contracts for ESO services and recommend approving, 

denying or changing the contract to the appropriate signing authority.” The Master Plan further provides that

“[c]ountywide services” include “[p]rovision of all districtwide information technology services and maintenance.” 

And the CCLSD Advisory Board’s bylaws expressly provide 

that “[a]ll Board meetings shall be held in compliance with 

the Oregon Public Meeting Law as set out in the Oregon 

Revised Statutes.” See ORS 192.610 - 192.705. Those statutes reflect state policy that “[t]he Oregon form of government requires an informed public aware of the deliberations 

and decisions of governing bodies and the information upon 

which such decisions were made” and express the legislature’s “intent * ** that decisions of governing bodies be 

arrived at openly,” ORS 192.620, by requiring, among other 

things, that “[a]ll meetings” of a “governing body of a public 

body” be open to the public, and by prohibiting a “quorum of 

a governing body” from “meet[ing] in private for the purpose 

of deciding on or deliberating toward a decision on any matter,” ORS 192.630. See also ORS 192.610 (defining terms, 

including “decision,” “deliberation,” “governing body,” “public body,” and “meeting”). From that evidence, a reasonable 

factfinder could find that plaintiff believed that the Master 

Plan and bylaws required Croft to seek approval from the 

Advisory Board to contract with a third party to migrate to 
16 McClusky v. City of North Bend

G Suite and to do so at a public meeting that complied with 

Oregon Public Meeting Law, and that plaintiff believed that 

Croft had reached the decision to migrate to G Suite by circumventing those legal requirements.

Defendant does not directly respond to plaintiff’s 

contention that he believed that Croft violated public meeting 

law. Instead, defendant argues that plaintiff could not have 

had a good faith, subjective belief of an alleged violation of 

law at the time of the report because alleged violations of the 

CCLSD Master Plan and bylaws “involv[e] internal administrative matters” and therefore do not constitute “state or 

federal law, rule[s] or regulation[s].” We are unpersuaded. 

The CCLSD Master Plan was adopted by the Coos County 

Board of Commissioners and expressly delegates “limited 

and defined powers” to the appointed Advisory Board. The 

Advisory Board is governed by the CCLSD bylaws, which 

expressly mandate that board meetings comply with state 

law. We therefore reject defendant’s contention that plaintiff 

could have only believed that he was reporting an alleged 

violation of mere internal administrative matters.

Finally, we turn to whether defendant may be liable under ORS 659A.199 for Croft’s conduct under a joint 

employer or an imputed motive theory. It is undisputed that 

plaintiff named only North Bend as a defendant and does 

not allege that he reported a violation of law by defendant or 

one of defendant’s agents. In defendant’s view, that is fatal 

to plaintiff’s claim under ORS 659A.199.

As an initial matter, ORS 659A.199 is not limited to 

reported violations about the employer. “By its terms, [ORS 

659A.199] protects good faith reports of any illegal activity 

and does not require that the reported activity be attributable to the employer.” Burley v. Clackamas County, 298 

Or App 462, 468, 446 P3d 564, rev den, 365 Or 721 (2019) 

(emphasis in original). However, ORS 659A.199 does require 

that the employer’s adverse employment action be taken 

“because” of or “for the reason that” the employee reported a 

violation of law. Ossanna v. Nike, Inc., 290 Or App 16, 26-27, 

415 P3d 55 (2018), aff’d, 365 Or 196, 445 P3d 281 (2019). 

Here, it is also undisputed that defendant’s agent, O’Connor, 

was the ultimate decisionmaker with regard to plaintiff’s 
Cite as 332 Or App 1 (2024) 17

termination and that Croft recommended that O’Connor 

terminate plaintiff. Thus, the question becomes whether 

defendant may be liable for terminating plaintiff “for the 

reason that” he reported an alleged violation of law by Croft 

and, by extension, CCLSD.

The trial court observed that “Oregon law has yet 

to address joint employer liability” and therefore looked to 

federal law under Supreme Court guidance. See Ossanna v. 

Nike, Inc., 365 Or 196, 204-05, 445 P3d 281 (2019) (“Although 

federal precedent has no binding authority on this court’s 

interpretation of state law, this court has looked to Title VII 

precedent for guidance in analyzing claims brought under 

analogous provisions of ORS chapter 659A.”). The court 

applied the federal common-law agency test adopted by the 

Ninth Circuit in EEOC v. Global Horizons, Inc., 915 F3d 631 

(9th Cir 2019), and found that CCLSD and defendant were 

plaintiff’s joint employers but concluded that defendant was 

not jointly liable for CCLSD’s alleged discriminatory conduct 

because defendant did not know and should not have known 

about any such unlawful acts. See id. at 641 (“Liability may 

be imposed for a co-employer’s discriminatory conduct only 

if the defendant employer knew or should have known about 

the other employer’s conduct and failed to undertake prompt 

corrective measures within its control.” (Internal quotation 

marks and citation omitted.)).

Plaintiff contends that defendant may be liable for

Croft’s alleged biased recommendation because CCLSD 

(Croft’s employer) and defendant are his joint employers and 

because he produced evidence to create a genuine issue of 

material fact that defendant knew or should have known 

about Croft’s alleged bias—that is, that Croft recommended 

that defendant terminate plaintiff at least in part because 

plaintiff reported that she allegedly violated the law. 

Defendant first responds by challenging the trial court’s 

finding that defendant and CCLSD were plaintiff’s joint 

employers. Defendant argues that it cannot be held liable as 

defendant’s joint employer because CCLSD, not defendant, 

exercised the right to control plaintiff’s day-to-day activities.

We reject defendant’s argument. In McClusky I, we 

explained that ORS 659A.001(4)(a)’s definition of “employer” 
18 McClusky v. City of North Bend

as “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” reflects the understanding of the “right to control” that “appears in various 

contexts throughout Oregon law” and that was reflected in 

case law at the time its predecessor statute was enacted in 

1969. 308 Or App at 142. We rejected North Bend’s “methodological approach” that “frames the right to control as a 

zero-sum game: there is only ever one employer, and anyone else is, at best, an agent” as “incorrect.” Id. at 143. We 

further observed that “[t]he proposition that more than one 

employer can possess a right to control an employee is wellestablished.” Id. at 144 (citing Restatement of Employment 

Law § 1.04(b) (2015) (“An individual is an employee of two 

or more joint employers if (i) the individual renders services 

to at least one of the employers and (ii) that employer and 

the other joint employers each control or supervise such rendering of services as provided in § 1.01(a)(3).”)). Although 

we ultimately did not decide whether CCLSD was plaintiff’s employer, we expressly held that, “as a matter of law, 

North Bend reserved the right to control plaintiff and was 

his employer for purposes of ORS chapter 659A.” Id. at 145. 

In reaching that conclusion, we squarely rejected the argument that defendant again raises here. Id. at 144 (“[E]ven if 

we were to assume arguendo that CCLSD possessed a right 

to control plaintiff, and even if CCLSD actually exercised 

control over plaintiff, neither point forecloses that North 

Bend also retained a right to control him.”).

If defendant is shielded from liability under a joint 

employer theory as a matter of law, it could only be on the 

grounds that CCLSD is not plaintiff’s joint employer. But 

defendant conceded that point in its answer. And, in any 

event, the evidence in the summary judgment record shows 

that CCLSD reserved the right to control plaintiff (and 

actually exercised control over him): the CCLSD Technology 

Systems Manager position description provides that “day to 

day supervision” “is provided by the Director of the North 

Bend Public Library in cooperation with the Director of 

CCLSD Extended Services” and that “[t]he CCLSD Director 

of Extended Services provides general supervision for this 
Cite as 332 Or App 1 (2024) 19

position and provides input to the yearly evaluation” and 

“coordinates the scheduling of this position.” We therefore 

conclude that CCLSD and defendant were plaintiff’s joint 

employers as a matter of law.

Under federal law, “even if a joint-employment relationship exists, one joint employer is not automatically liable for the actions of the other.” Global Horizons, Inc., 915 

F3d at 641. We agree with the Ninth Circuit that “[l]iability 

may be imposed for a co-employer’s discriminatory conduct 

only if the defendant employer knew or should have known 

about the other employer’s conduct and failed to undertake 

prompt corrective measures within its control.” Id. (internal 

quotation marks and citation omitted). In Global Horizons, 

Inc., the Equal Employment Opportunity Commission 

brought discrimination charges against fruit growers and 

a labor contractor under Title VII of the Civil Rights Act of 

1964 alleging, among other things, that the fruit growers 

and labor contractor subjected Thai workers to poor working conditions, substandard living conditions, and unsafe 

transportation on the basis of their race and national origin. 

Id. at 633. After concluding that the EEOC had plausibly 

alleged that the fruit growers and the labor contractor were 

joint employers of the Thai workers, the Ninth Circuit concluded that the allegation that the Thai workers had complained directly to one fruit grower about their substandard 

working conditions gave rise to a plausible inference that 

the fruit grower knew or should have known about the labor 

contractor’s discriminatory conduct. Id. at 641. And because 

the allegations established that the fruit grower had ultimate control over those working conditions, they could have 

taken corrective action but failed to do so. Id. at 641-42.

Here, plaintiff produced evidence that defendant’s 

agent, North Bend HR Manager Collins, was present at 

the July 2017 IT meeting and participated in the discussion in which plaintiff reported Croft’s alleged violation 

of law. Plaintiff also produced evidence that Croft worked 

closely with defendant’s management team (Collins, Sharp, 

and O’Connor) to provide day to day supervision to plaintiff 

and to discuss plaintiff’s termination, including that Croft 

made the initial decision with Sharp to pursue plaintiff’s 
20 McClusky v. City of North Bend

termination. Finally, the draft Work Improvement Plan created by Sharp and edited by Croft specifically notes that 

plaintiff “has a tendency to incorrectly assume the worst 

about his colleagues, which often leads him to improperly 

accuse them of wrongdoing,” and “[a]s a result, many of his 

professional relationships have become strained.” We therefore conclude that plaintiff has produced evidence sufficient 

to create a genuine issue of fact that defendant knew or 

should have known about Croft’s (and by extension CCLSD’s) 

alleged bias due to plaintiff’s report of Croft’s violation of 

law, that defendant could have but failed to take corrective 

action (for example, by not including Croft in the decision to 

terminate plaintiff), and that Croft’s allegedly biased recommendation to terminate plaintiff was a substantial factor 

in O’Connor’s decision to terminate him.

We next address whether defendant may be liable

under a “cat’s paw” or imputed motive theory, that is, whether 

Croft’s alleged bias may be considered a cause of plaintiff’s 

termination because Croft recommended that defendant terminate plaintiff. The trial court concluded that the imputed 

motive theory did not apply to this case because Croft was 

not a subordinate to the decision-maker, O’Connor, and was 

not employed by defendant.

“[I]n Oregon statutory employment discrimination and 

retaliation cases, a plaintiff may assert the ‘cat’s paw’ theory to impute the bias of a supervisor who lacks decisionmaking authority to the employer’s manager and ultimate 

decision-maker, if the plaintiff can point to evidence that 

the non-decision-maker influenced or was involved in the 

adverse employment decision.”

Ossanna, 365 Or at 209. In Ossanna, the court did “not prescribe a particular level of control that a biased employee *** 

must exert over the employment decision *** before allowing 

the bias to be imputed to the decision-maker.” Id. The court 

adopted such a “practical” approach given “a workplace reality” that “[t]he employment setting often consists of multiple 

layers of networks and relationships; organizational models 

often do not reflect a simple vertical chain of command; and 

bias can enter the decision-making process through formal 

or less formal channels.” Id. at 210. We have since held that 

the cat’s paw theory is applicable when a coworker, rather 
Cite as 332 Or App 1 (2024) 21

than a supervisor, is the alleged biased employee. Crosbie 

v. Asante, 322 Or App 250, 259, 519 P3d 551 (2022), rev den, 

370 Or 827 (2023) (“[T]he propriety of a cat’s paw instruction 

hinges on whether a biased employee held influence over the 

adverse employment decision—either because the employee 

was authorized by job duty to do so or because the employer 

negligently allowed such usurpation.”).

Given the practical approach the Ossanna court 

adopted and our distillation in Crosbie of the core principle 

for when a cat’s paw theory applies, we see no reason why it 

should not apply when a supervisor for a joint employer is the 

allegedly biased employee, so long as the plaintiff produces 

evidence that the allegedly biased employee held influence 

over the adverse employment decision. Here, the undisputed 

evidence is that plaintiff’s supervisor, Croft, held influence 

over plaintiff’s other supervisor and ultimate decisionmaker, O’Connor, in his decision to terminate plaintiff. We 

therefore conclude that Croft’s motive may be imputed to 

defendant, and that there is a genuine issue of material fact 

whether Croft’s recommendation was a substantial factor in 

his termination.

C. Claims 3 and 4: Public Employer Whistleblowing - ORS 

659A.203(1)(b)(A), (1)(b)(B), and (1)(d)

Plaintiff’s third and fourth claims allege violations 

of ORS 659A.203(1), which provides, in relevant part:

“[I]t is an unlawful employment practice for any public 

or nonprofit employer to:

“* * * * *

“(b) Prohibit any employee from disclosing, or take or 

threaten to take disciplinary action against an employee 

for the disclosure of any information that the employee reasonably believes is evidence of:

“(A) A violation of any federal, state or local law, rule 

or regulation by the public or nonprofit employer;

“(B) Mismanagement, gross waste of funds or abuse 

of authority or substantial and specific danger to public 

health and safety resulting from action of the public or nonprofit employer; [or]
22 McClusky v. City of North Bend

“* * * * *

“(d) Discourage, restrain, dissuade, coerce, prevent or 

otherwise interfere with disclosure or discussions described 

in this section.”

The trial court granted summary judgment for 

defendant on plaintiff’s third claim under ORS 659A.203

(1)(b)(A) and (B) on several grounds, only one of which we 

need address, as it is dispositive: that plaintiff failed to produce evidence to create an issue of fact that it was objectively 

reasonable for him to believe that North Bend was violating any federal or state law, rule or regulation. Given that 

plaintiff failed to establish objective reasonableness as to his 

third claim, the trial court granted summary judgment for 

defendant on plaintiff’s fourth claim under ORS 659A.203

(1)(d), because he failed to produce evidence that North Bend 

“discouraged, restrained, dissuaded, coerced, prevented or 

otherwise interfered” with plaintiff’s disclosure or discussion 

of the matters described in ORS 659A.203(1)(b)(A) or (B).

On appeal, plaintiff argues that the definition of 

“public employer,” ORS 659A.200(6), does not limit the report 

in ORS 659A.203(1)(b) specifically to the plaintiff’s employer 

who takes the adverse action, but rather includes reports of 

violations of illegal and other inappropriate conduct occurring at “any agency of or political subdivision of the state.” 

Plaintiff contends that the phrase “the public employer” in 

ORS 659A.203(1)(b)(A) and (B) “is not referring to the plaintiff’s employer” who took the alleged adverse employment 

action, but to “a public employer about which the protected 

individual complains” and that ORS 659A.203(1) therefore 

“applies to public employees who complain about perceived 

violations of law by any agency or political subdivision of the 

state.”

To resolve this question, we turn to our familiar 

methodology of statutory construction to discern the legislature’s intent. State v. Gaines, 346 Or 160, 171-72, 206 P3d 

1042 (2009) (explaining that the “paramount goal” of statutory interpretation is “discerning the legislature’s intent”). 

In doing so here, we begin and end with the text and context 
Cite as 332 Or App 1 (2024) 23

of the provision. Id. (holding that text and context “must be 

given primary weight in the analysis”).5

As noted, ORS 659A.203(1)(b) prohibits “any public or nonprofit employer” from taking disciplinary action 

against an employee for disclosing “any information that 

the employee reasonably believes is evidence of [a] violation 

of any federal, state or local law, rule or regulation by the 

public or nonprofit employer” or “[m]ismanagement, gross 

waste of funds or abuse of authority or substantial and specific danger to public health and safety resulting from action 

of the public or nonprofit employer.” (Emphases added.) The 

statute uses the definite article “the” in referring to “the 

public or nonprofit employer” whose conduct is the subject of 

the reported violation or inappropriate conduct. “The definite article ‘the’ often signifies a narrowing intent, a reference to something specific, either known to the reader 

or listener or uniquely specified.” Hill v. Johnson, 371 Or 

494, 502, 538 P3d 204 (2023) (internal quotation marks and 

citation omitted). “A referent may be identifiable because it 

was previously introduced.” Id. Here, the identifiable referent that was previously introduced is the public or nonprofit 

employer who takes the adverse employment action.

The context also supports our reading. In comparing the protections afforded by the various whistleblowing 

statutes in ORS chapter 659A, we have explained that ORS 

659A.203(1)(b) “applies strictly to public employers,” Burley, 

298 Or App at 468, and that “the legislature intended that 

the ‘threshold’ for the generality of public employee whistleblower claims be different, and more demanding” than other 

causes of action, including under the common law, Love v. 

Polk County Fire District, 209 Or App 474, 492, 149 P3d 

199 (2006). Just as the legislature knows how to employ a 

less demanding subjective good faith belief standard, as it 

did in ORS 659A.199, it also knows how to employ broader 

5 The parties have not pointed us to any pertinent legislative history, and we 

have not independently sought such legislative history, as it is unnecessary for us 

to do so in light of the text of ORS 659A.203(1)(b) and its context. ORS 174.020(3) 

(“A court may limit its consideration of legislative history to the information that 

the parties provide to the court.”); see also Baldwin v. Seida, 297 Or App 67, 76, 

441 P3d 720, rev den, 365 Or 769 (2019) (“We need not exercise our discretion to 

seek legislative history, particularly when unnecessary.”).
24 McClusky v. City of North Bend

language with regard to the subject of the reported illegal 

or inappropriate conduct, as it also did in ORS 659A.199. As 

we observed in Burley, ORS 659A.199 reflects the legislature’s intent “both to provide protections against retaliation 

to the employees of private employers” who are not covered 

by ORS 659A.203, and “to supply additional protections to 

employees of public employers” by allowing for another cause 

of action to be available for a broader range of protected conduct than afforded by ORS 659A.203. 298 Or App at 468.

We therefore reject plaintiff’s contention that ORS 

659A.203 applies to reports of alleged violations or inappropriate conduct by any public or nonprofit employer; by its 

terms, ORS 659A.203(1)(b) expressly applies only to reports 

of illegal and other inappropriate conduct by the public 

or nonprofit employer who takes the adverse employment 

action.

Returning to this case, we conclude that the trial 

court correctly granted summary judgment on Claims 3 and 4.

As to Claim 3, plaintiff failed to produce evidence that he 

reported illegal or other inappropriate conduct by defendant North Bend—the employer that plaintiff alleges took 

the adverse employment action in terminating him. Rather, 

plaintiff’s theory and evidence as to these claims focus on 

reports of illegal and other inappropriate conduct only by 

Croft, who was an agent of CCLSD, and plaintiff does not 

identify any adverse employment action taken by CCLSD.6

As to Claim 4, because he failed to establish a violation of 

ORS 659A.203(1)(b)(A) or (B) in his third claim, plaintiff necessarily failed to establish that defendant “[d]iscourage[d], 

restrain[ed], dissuade[d], coerce[d], prevent[ed] or otherwise 

interfere[d] with disclosures or discussions described in this 

section.” The trial court did not err in granting summary 

judgment for defendant on these claims.

Judgment of dismissal as to Claims 1 and 2 reversed 

and remanded; otherwise affirmed.

6 We do not understand plaintiff to assert as a basis for these claims that 

Croft’s recommendation that defendant terminate plaintiff is an adverse employment decision protected by ORS 659A.203. Plaintiff rather focuses on defendant’s 

decision to terminate him. We therefore do not address it.