Summary
In Meadows v. Kindercare Learning Centers, 2004 WL 2203299 (D. Or. 2004), defendants moved to dismiss a wrongful discharge claim made by an attorney-employee on the grounds that the proceeding would require the Plaintiff to violate attorney-client privilege.
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No. CV-03-1647-HU.
May 11, 2004
Craig A. Crispin, Shelley D. Russell, Crispin Employment Lawyers, Portland, Oregon, Attorneys for plaintiff.
Joel A. Mullin, Andrew M. Altschul, Stoel Rives, Portland, Oregon, Attorneys for defendants.
FINDINGS AND RECOMMENDATION
Plaintiff Sheila Meadows brings this action against her former employer, KinderCare, and KinderCare's Senior Vice President and General Counsel, Eva Kripilani. She asserts claims for retaliatory discharge under Title VII and Oregon discrimination statutes, and common law claims for wrongful discharge and intentional infliction of emotional distress. Defendants move to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure or, alternatively, to certify questions to the Oregon Supreme Court. The court heard oral argument on March 3, 2004. With leave of the court, the parties submitted additional briefing on March 9, 2004.
Factual Background
Meadows was formerly employed as KinderCare's Assistant General Counsel for Litigation, Licensing and Employment. During the course of her job duties she allegedly discovered the existence of discriminatory and illegal employment practices within the company. Meadows alleges that in the spring of 2002, David Johnson, the CEO of KinderCare, stated his intention of implementing these practices as company policy.
Meadows further alleges that when defendant Kripilani instructed her to cooperate in the policy implementation, she protested and ultimately refused to participate. In August 2002, CEO Johnson indicated his desire for employees who were willing to implement the practices with which Meadows disagreed. In September 2002, Meadows alleges that she learned some sexual harassment complaints within KinderCare headquarters had not been adequately addressed. She reported the matter to KinderCare's Human Resources (HR) department and asked the manager involved to rectify the problem.
Meadows further alleges that in September 2002, she assisted Kripilani with the potential termination of an employee, during which Meadows learned that the company had not complied with the FMLA or its own policy on FMLA leave. When Meadows complained about this lack of compliance, Kripilani reassigned the matter to a different in-house attorney.
As Kripilani allegedly became more hostile, Meadows sought advice from KinderCare's HR department. After she did so, Kripilani and Edward Brewington, KinderCare's Senior Vice President for HR, directed Meadows to leave; Brewington suspended her and directed her to "think about" whether she could work with Kripilani.
Meadows alleges that on September 26, she told Brewington that she wanted to keep her job and would be able to work with Kripilani, but that she needed to be able to go to HR with complaints about noncompliance with state and federal law without retaliation. Defendants then terminated Meadows.
Standards
1. Motion to dismiss
When ruling on a 12(b)(6) motion, the court must construe the complaint in the light most favorable to the plaintiff. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). The court accepts as true all material allegations in the complaint, as well as any reasonable inferences to be drawn from them. Id.
2. Certification
The Oregon Supreme Court is authorized to answer questions of law certified by other state and federal courts. The court is authorized to do so "when requested by the certifying court if there are involved in any proceedings before it questions of law in this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Oregon Supreme Court and intermediate appellate courts of Oregon." Or. Rev. Stat. § 28.200.
Discussion
1. Motion to dismiss
a. Wrongful discharge claim
In Nees v. Hocks, 272 Or. 210 (1975) the Oregon Supreme Court articulated an exception to the general rule of "at-will" employment, stating that there "can be circumstances in which an employer discharges an employee for such a socially undesirable motive that the employer must respond in damages for any injury done." 272 Or. at 218. In Holien v. Sears, Roebuck and Co., 298 Or. 76 (1984) the court extended this "public policy" exception to encompass termination in retaliation for an employee's resistance to sex discrimination.
Meadows' wrongful discharge claim is founded on her assertion that she was terminated because she "resisted and opposed" employment practices which she "reasonably believed were unlawful." Defendants move to dismiss the claim on the ground that in-house attorneys cannot pursue wrongful discharge claims against their employers unless the claim 1) is based on the attorney's refusal to violate the Code of Professional Responsibility or other ethical requirements imposed upon attorneys and 2) can be litigated without breaching the employer's attorney-client privilege.
To bring a claim for wrongful discharge, the plaintiff must prove that her termination was the result of 1) exercising a job-related right that reflects an important public policy or 2) fulfilling a public duty. Babick v. Oregon Arena Corp., 333 Or. 401, 407 (2002). The tort does not protect private interests.Campbell v. Ford Industries, Inc., 274 Or. 243, 250-51 (1976). Defendants argue that permitting Meadows to go forward with her claim would injure, not protect, the public interest in preserving attorney-client privilege; because the gravamen of her claim is that she was terminated based on the advice she was hired to give, litigating the claim would necessarily require disclosure of KinderCare's confidences. The Supreme Court articulated the public interest in attorney-client privilege inUpjohn Co. v. United States, 449 U.S. 383, 389 (1981): "Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends. . . ."
Defendants rely on three groups of cases from other jurisdictions in support of their argument that under the allegations in her complaint, Meadows cannot pursue a claim for wrongful or retaliatory discharge. The first group is represented by an Illinois Supreme Court decision, Balla v. Gambro, Inc., 145 Ill.2d 492 (1991). In that case, the court held that in-house counsel, who was fired after he notified the FDA that his employer intended to sell adulterated medical devices, could not assert a cause of action for wrongful discharge. Although the court acknowledged the public policy favoring protection of the lives and property of citizens, it found that this policy was trumped by the presence of the attorney-client relationship between the plaintiff and his employer. The reasoning of this case has not generally been followed in other jurisdictions. But see Willy v. Coastal Corp., 647 F. Supp. 116, 118 (S.D. Tex. 1986), rev'd in part on other grounds, 855 F.2d 1160 (5th Cir. 1988) (applying Texas law and reaching same result).
The second group of cases permits an action for wrongful discharge if the complaint is based on the in-house lawyer's adherence to obligations imposed by the Code of Professional Responsibility. See, e.g., Crews v. Buckman Laboratories Intern., Inc., 78 S.W.3d 852, 855 (Tenn. 2002) ("[I]n-house counsel may bring a common-law action for retaliatory discharge resulting from counsel's compliance with a provision of the Code of Professional Responsibility that represents a clear and definitive statement of public policy."); Parker v. M T Chemicals, 236 N.J. Super. 451, 566 A.2d 215 (N.J. 1989) (reinstating action by attorney fired for refusing to copy technical information improperly obtained from a sealed federal court file); GTE Products Corp. v. Stewart, 653 N.E.2d 161, 166-67 (Mass. 1995) (retaliatory discharge claim cannot proceed absent a showing that "explicit and unequivocal statutory or ethical norms" were violated); General Dynamics v. Superior Court, 7 Cal.4th 1164, 1169 (1994) ( en banc) (in-house counsel should be permitted to pursue a claim for wrongful discharge if the claim is "founded on allegations that an in-house attorney was terminated for refusing to violate a mandatory ethical duty embodied in [California's Code of Professional Conduct]." Meadows, however, has not alleged that she was terminated for refusing to violate an ethical duty.
A third line of cases holds that retaliatory discharge claims brought by in-house attorneys are prohibited whenever pursuit of the claim would result in disclosure of client confidences or secrets. See, e.g., Wise v. Consolidated Edison Co. of New York, 282 A.D.2d 335, 723 N.Y.S.2d 462, 463 (2001) (affirming grant of motion to dismiss because "permitting the action to go forward would entail the improper disclosure by plaintiff, an attorney who was in-house counsel to defendant prior to his termination, of client confidences"); General Dynamics, 7 Cal. 4th at 1189 (holding that attorney claims for wrongful discharge are limited to those grounded in explicit and unequivocal ethical norms and which are maintainable under circumstances in which the principle of professional confidentiality does not apply); GTE, 653 N.E.2d 161, 166-67(claim for wrongful discharge brought by in-house counsel recognized only if it depends on 1) explicit and unequivocal statutory or ethical norms 2) which embody policies of importance to the public at large and 3) the claim can be proved without any violation of the attorney's obligation to respect client confidences and secrets). Defendants contend that Meadows' claims are precluded because she cannot pursue her claim for retaliatory discharge without divulging KinderCare's confidences and secrets.
In General Dynamics, a former in-house lawyer brought a breach of contract and wrongful discharge action asserting that he was terminated in part because he had spearheaded an investigation into employee drug use and had advised General Dynamics that its salary policy might be in violation of the FLSA. The court declined to dismiss the action at the pleadings stage, but made it clear that the wrongful discharge claim could be pursued only if it did not necessitate breaching attorney-client privilege. 7 Cal. 4th at 1169. The court reasoned that judicial recognition of a tort action for discharge in violation of public policy seeks primarily to protect the public, not the employee. Although the public policy may often be directly protective of the interest in employment, the doctrinal foundation of the claim is "not so much the plaintiff's continued interest in employment as the preservation of the public interest." 7 Cal.4th at 1181(emphasis in original).
In GTE, the trial court had granted GTE's motion for summary judgment, relying on Balla and Willy. But the appellate court turned to General Dynamics for guidance and concluded,
a claim for wrongful discharge brought by in-house counsel will be recognized only in narrow and carefully delineated circumstances. To the extent that in-house counsel's claim depends on an assertion that compliance with the demands of the employer would have required the attorney to violate duties imposed by a statute or the disciplinary rules governing the practice of law . . . that claim will only be recognized if it depends on 1) explicit and unequivocal statutory or ethical norms 2) which embody policies of importance to the public at large in the circumstances of the particular case, and 3) the claim can be proved without any violation of the attorney's obligation to respect client confidences and secrets.421 Mass. at 29. (Citations omitted).
In Wise, the appellate court held that the lower court should have dismissed an action for wrongful discharge brought by an inhouse attorney against his employer.
Permitting the action to go forward would entail the improper disclosure by plaintiff, an attorney . . . of client confidences, including specific corporate tax strategies. The ethical obligation to maintain the "confidences" and "secrets" of clients is broader than the attorney-client privilege, and exists "without regard to the nature or source of information or the fact that others share the knowledge." . . . Plaintiff's affirmative claims against defendant for damages, grounded in the theory of wrongful discharge, do not fall within the exception permitting an attorney to disclose confidences or secrets necessary to defend "against an accusation of wrongful conduct" and plaintiff cannot circumvent the rule prohibiting such claims by reframing his claims as other related torts.723 N.Y.S.2d at 463 (citations omitted).
Meadows has not taken the position that her claim can go forward without disclosing KinderCare's confidences and secrets; she argues, however, that attorney-client privilege does not prevent trial of her wrongful discharge claim and, even if it did, that KinderCare's secrets can be safeguarded by means of protective orders, limited admissions of evidence, in camera proceedings, and the like.
Meadows relies on Washington v. Davis, 2001 WL 1287125 (E.D. La. 2001), Burkhart v. Semitool, Inc., 300 Mont. 480 (2000),Crews v. Buckman Laboratories Intern., Inc., 78 S.W.3d 852 (Tenn. 2002) and Parker v. M T Chemicals, Inc., 236 N.J. Super. 451 (N.J. App. 1989).
In Washington, plaintiff was employed as general counsel for a school district. One of her duties was to monitor a settlement agreement between the school district and the Department of Justice which related to claims under the Americans With Disabilities Act. When two school district employees filed complaints of disability discrimination, plaintiff investigated and reported to the district's CEO. Plaintiff alleged that the CEO disagreed with her findings and directed her to change the report, which she refused to do. Plaintiff then conveyed the two complainants' conciliation offers, reminding the CEO that she was obligated to report these developments to the Department of Justice under the settlement agreement.
Plaintiff reported the failure to conciliate the two employee complaints to the Department of Justice and the EEOC, and disclosed information about the claims to school board members. The CEO fired her for insubordination, and she sued for wrongful discharge.
The defendants moved against the complaint on the ground that in pursuing her claim, plaintiff had disclosed client confidences. The court denied the motion, concluding that some of the alleged confidences had already been reported outside the district, to the Department of Justice and the school board, and that a protective order could be crafted to protect against unwarranted disclosures.
Defendants argue that Washington is factually and legally distinguishable because in that case, plaintiff had a duty to disclose the complaints and the employer's inability to conciliate to the Department of Justice. That factual setting is not present in this case. Further, the disclosures were made before plaintiff commenced the action against the school district. Defendants argue that unlike Washington, in this case KinderCare's confidences and secrets are not ancillary to the claim, but rather constitute the claim itself, because to pursue it, Meadows must prove that her employment was terminated because of the legal advice she gave. I agree.
Burkhart, Crews and Parker are all distinguishable on their facts because they involve attorneys discharged for adherence to their ethical obligations. In Burkhart, the plaintiff alleged that his supervisor ordered him to prepare and file what the plaintiff believed to be fraudulent patent applications. In Crews, the plaintiff was discharged for refusing to report to the Board of Law Examiners the unauthorized practice of law by the general counsel. In Parker, plaintiff alleged that he was terminated after refusing to take possession of documents containing a competitor's trade secrets after he learned that the documents were the subject of a protective order in ongoing litigation. Plaintiff alleged that he refused because he "reasonably believed that the company was engaged in unlawful and fraudulent conduct in violation of the canons of ethics binding attorneys." 566 A.2d at 218.
Meadows has not cited persuasive authority to support her assertion that a claim for wrongful discharge, not based on the attorney's adherence to ethical requirements, can go forward when it involves disclosure of privileged information. I agree with the General Dynamics court's rejection of "any suggestion that the scope of the privilege should be diluted in the context of in-house counsel and their corporate clients," and with its holding that the tort of wrongful discharge in violation of public policy is not intended to vindicate private rights to employment, but rather to protect the public primarily, and the employee only incidentally. See 7 Cal.4th at 1190, 1180.
Despite being cast in terms of opposition to discriminatory practices, Meadows' wrongful discharge claim unavoidably seeks to protect her private employment rights at the expense of the public interest in maintaining attorney-client privilege. This is not the purpose for which the tort of wrongful discharge was created, and her claim cannot stand
b. Retaliation claim under Title VII and Or. Rev. Stat. § 659A.030(1)(f)
Title VII provides that it is an unlawful employment practice for an employer to discriminate against an employee because the employee has opposed any practice made unlawful under Title VII. 42 U.S.C. § 2000e-3(a). In analyzing Oregon discrimination claims under Chapter 659A, Oregon courts look to Title VII cases for guidance because Oregon statutes are "wholly integrated and related" to Title VII. Logan v. West Coast Benson Hotel, 981 F. Supp. 1301, 1319 (D. Or. 1997).
In support of her claims for retaliatory discharge under Title VII and Or. Rev. Stat. § 659A.030(1)(f), Meadows argues that the law makes no distinction between attorneys and non-attorneys who oppose discriminatory practices and suffer retaliation for doing so. She relies on Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 180-82 (3d Cir. 1997).
In Kachmar, the plaintiff alleged that she was terminated as a result of several episodes involving opposition to discrimination: the lower salaries paid to herself and another female attorney; her recommendation that a female sales representative be given a bonus despite the opposition of the representative's male supervisors; her advice to the CEO that the absence of women in SunGard's upper management could disqualify the company for certain federal contracts; and her views that SunGard's attempts to fire an African-American senior vice president would have discriminatory implications.
The district court granted the defendants' motion to dismiss. The appellate court reversed, holding that it was too early in the litigation to determine the range of evidence Kachmar would offer and how it would implicate the attorney-client privilege. The court did observe that it was "difficult to see" how statements made to Kachmar and other evidence offered in relation to her own employment and her own prospects in the company would implicate the attorney-client privilege, and that it was "questionable" whether information that was generally observable by Kachmar as an employee (such as the lack of women in management positions) would implicate the privilege. The court noted, there "may be a fine but relevant line to draw between the fact that Kachmar took positions on certain legal issues involving SunGard policies, and the substance of her legal opinions." 109 F.3d at 181-82.
Defendants argue that the Kachmar court's analysis is inapplicable here, because Meadows' claim is not based on information that was generally observable by any employee, or on communications to KinderCare that were outside the scope of her role as an attorney. I agree. Meadows has not unequivocally taken the position that her claim can be proven without the disclosure of attorney-client confidences, and the complaint is carefully worded to avoid providing the content of information revealed to Meadows or communicated by her. The complaint alleges the existence of unspecified "discriminatory and/or illegal employment practices," the CEO's "intent to implement" the unspecified practices, "sexual harassment complaints" that were not "adequately . . . dealt with," the "potential termination of an employee within a protected classification," and so on.
Defendants argue that Meadows cannot maintain her claim for retaliatory discharge under Title VII for a second reason: because her actions in advising KinderCare on discrimination matters do not constitute "oppositional conduct" within the meaning of Title VII and state discrimination statutes. Defendants cite to cases holding that when the employee's job is to act on behalf of the employer with respect to discrimination issues, the employee's unwelcome advice does not constitute opposition to discrimination.
In Smith v. Singer Co., 650 F.2d 214 (9th Cir. 1981), the plaintiff's job required him to develop affirmative action programs, assist in identifying and solving problems, design audit and reporting systems to measure the effectiveness of the programs, and keep management informed of the latest developments in equal opportunity enforcement. Perceiving a lack of cooperation and commitment from the company, plaintiff secretly filed discrimination complaints against the company with the Contracts Compliance Division of the Defense Contracts Administration Service and the EEOC; he also participated in the investigation of his charges without the employer's knowledge. When the employer eventually learned of plaintiff's activity, he was fired.
The Court of Appeals affirmed the district court's grant of summary judgment to the employer. It noted that Smith's position was "unique in that it required the occupant to act on behalf of his employer in an area where normally action against the employer and on behalf of the employees is protected activity." 650 F.2d at 217. The court defined the issue as
whether, under [42 U.S.C.] § 2000e-3(a), it is protected activity for this executive employee, occupying this position of responsibility, to take such action against the company he represents in support not of his own rights but of the perceived rights of those with whom it is his duty to deal on behalf of his company.Id. The court concluded that it was not.
In Nelson v. Pima Community College, 83 F.3d 1075 (9th Cir. 1996), plaintiff was the assistant to a community college president whose duties were to provide assistance to the president and to receive administrative direction from her with respect to affirmative action. She alleged that she was terminated for opposing the college's affirmative action plan.
The court began its analysis by noting that Title VII protects an employee from discrimination because the employee has opposed what she reasonably believes to be an unlawful practice. 83 F.3d at 1082. The court assumed, for purposes of discussion, that plaintiff's conduct could be treated as "opposition" under § 2000e-3(a), and that opposition to the college's affirmative action plan was protected conduct.
Nevertheless, the court held that an employee does not receive special protection under Title VII simply because she handles discrimination complaints or works on affirmative action matters, and that § 2000e-3(a) "does not prevent an employer from dismissing an employee who handles discrimination complaints as part of [her] job when the employee handles these complaints contrary to the instructions of [her] employer." Id. The court cited its previous decision in Smith, which it characterized as follows:
We held in Smith that where a discharged employee claimed that his supervisors had not yielded to his efforts to accomplish needed reforms in his company's affirmative action program, the employee's affirmative action responsibilities did not entitle him to repudiate his staff duties and engage in insubordination.83 F.3d at 1082.
Meadows counters with Hoskins v. Droke, 1995 WL 318817 (N.D. Ill.) and the General Dynamics, Crews, and Kachmar cases. Unlike Smith and Nelson, none of these cases is from the Ninth Circuit. None confronts the issue of whether an employee who handles discrimination complaints as part of her job can maintain an action for opposing discrimination, based on the giving of unwelcome advice.
In Hoskins, general counsel for a branch of the United Methodist Church brought an action alleging that he was terminated after his supervisor asked him to respond to some written questions dealing with the apparent breakdown of trust between the two, and plaintiff responded by stating that the supervisor must face his problems with alcohol and expressing his concern about informal complaints of sexual harassment made against the supervisor. The supervisor terminated Hoskins soon afterward.
Hoskins filed an action for retaliatory discharge under Title VII. Defendants moved against the complaint on the ground that under Balla, Hoskins could not sue for the common-law tort of retaliatory discharge. Defendants argued that the public policy rationale of Balla applied with full force to Title VII.
The court rejected the argument, holding that there was "nothing in the text of Title VII indicating that attorney/employees should be treated any differently than any other employee," and that Balla's policy rationale was inapplicable because the "federal goals embodied in the discrimination statutes must take precedence over Illinois' public policy goal of allowing clients to freely terminate their attorneys." 1995 WL 318817 at *3.
Meadows' reliance on this case is misplaced because, as defendants point out, the court did not confront the issue of whether Hoskins had engaged in protected oppositional conduct, or of whether his job responsibilities precluded him from asserting a claim on that basis. I agree.
General Dynamics was not a Title VII case and the plaintiff did not allege that he was terminated for opposing discrimination. In that case, plaintiff's claims sounded in contract and tort.
Crews was not a Title VII case and did not involve the giving of legal advice or conduct in opposition to discriminatory conduct. The plaintiff in that case was discharged for reporting that her employer's general counsel was engaged in the unauthorized practice of law. The court does not know if the plaintiff in Crews was obligated by the Code of Ethics applicable in his state to report the unauthorized practice of law. In Oregon, it appears that a plaintiff in attorney Crews's situation would have an obligation to make the report under DR 3-101(A), DR 1-103(A) and DR 1-102(A)(1).
In Kachmar, as in Hoskins, the plaintiff's "oppositional" conduct appeared to the court to be unrelated to privileged information she had obtained in her capacity as a lawyer.
Plaintiff has failed to state a claim that she engaged in protected oppositional conduct under the holdings of Smith and Nelson. I therefore recommend that her claims for retaliation under Title VII and Or. Rev. Stat. § 659A.030(1)(f) be dismissed.
c. Claim for intentional infliction of emotional distress
The elements of intentional infliction of emotional distress (IIED) are 1) that the defendant intended to inflict severe emotional distress on the plaintiff; 2) that the defendant's acts caused the plaintiff severe emotional distress; and 3) that the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct or exceeded any reasonable limit of social toleration. Patton v. J.C. Penney Co., 301 Or. 117, 122 (1986); Sheets v. Knight, 308 Or. 220, 236 (1989). Substantial certainty that severe emotional distress will result satisfies the first element. McGanty v. Staudenraus, 321 Or. 532, 543 (1995). Defendants assert that Meadows has failed to allege the outrageous conduct necessary to state a claim for IIED.
The complaint alleges that Kripilani reacted to Meadows' opposition with "verbal tirades and ridicule, profane language, and a hysterical demeanor" toward her. Complaint ¶ 14. Defendants are correct that this allegation is insufficient to state the element of outrageous conduct necessary for a claim of IIED. InWatte v. Edgar Maeyens Jr. M.D.P.C., 112 Or. App. 234 (1992), among other things, the defendant employer made plaintiffs hold hands with their co-workers, paced in front of them with clenched hands, accused them of being liars and saboteurs, terminated their employment, refused to explain his conduct, ordered them off the premises, and threatened to throw one plaintiff out bodily, "pregnant or not." The court held that while defendant's conduct was insulting, rude, boorish, tyrannical, churlish and mean, it did not constitute the kind of outrageous conduct necessary for an IIED claim.
I recommend that the complaint be dismissed.
2. Motion to certify
Defendants move to certify to the Oregon Supreme Court two questions:
1. May a former in-house attorney sue for retaliatory discharge by claiming that the termination was based on her opposition to the very company policies and practices on which she advised her client?
2. May a former in-house attorney sue for retaliatory discharge if proving her claim requires the disclosure of client "confidences" and "secrets" as defined by DR 4-101(A)?
In Western Helicopter Services v. Rogerson Aircraft, 311 Or. 361 (1991) the Oregon Supreme Court interpreted Or. Rev. Stat. § 28.200 to require a two-stage analysis for deciding whether certification is appropriate. In the first stage, the certifying court inquires whether 1) the certification comes from a designated court, 2) the question is one of law, 3) the applicable law is that of Oregon, 4) the question may be "determinative of the cause," and 5) it appears to the certifying court that there is no controlling precedent in the decisions of the Oregon Supreme Court or the Oregon Court of Appeals. 311 Or. at 364-65. In the second stage, the Oregon Supreme Court considers seven discretionary factors in deciding whether to accept review of a certified question. Id. at 366-71. This court has adopted the criteria set out in Western Helicopter. L.R. 83.15(a).
Upon consideration of the first five factors, I am unpersuaded that the questions posed by the defendants are appropriate for certification because the applicable law is not entirely that of Oregon.
Retaliatory discharge based on the plaintiff's opposition to discriminatory practices under Title VII is governed by federal law, and Oregon discrimination statutes are generally interpreted to conform to federal jurisprudence on Title VII. Even Meadows' common-law wrongful discharge claim is essentially one for retaliation based on opposition to discriminatory practices.
Moreover, even if the wrongful discharge claim is isolated from Title VII and considered entirely under common law principles, there does not appear to be a significant countervailing trend away from the holdings of General Dynamics, Wise, GTE, Crews, Parker, and Burkhart. All of these cases can be reconciled with one another, and all indicate the development of consensus toward recognizing wrongful discharge claims by in-house counsel only when those claims are based on termination for the attorney's compliance with her ethical obligations and can be pursued without breaching attorney-client privilege.
I therefore recommend that the motion to certify be denied.
Scheduling Order
The above Findings and Recommendation will be referred to a United States District Judge for review. Objections, if any, are due May 26, 2004. If no objections are filed, review of the Findings and Recommendation will go under advisement on that date. If objections are filed, a response to the objections is due June 9, 2004, and the review of the Findings and Recommendation will go under advisement on that date.