Brinkley v. Oregon Health Sciences University12/21/1988
COURT OF APPEALS OF OREGON
CA No. A41161
1988.OR.40095 ; 766 P.2d 1045; 94 Or. App. 531
December 21, 1988
ROBERT BRINKLEY, RESPONDENT - CROSS-APPELLANT,
v.
OREGON HEALTH SCIENCES UNIVERSITY, APPELLANT - CROSS-RESPONDENT
Appeal from Circuit Court, Multnomah County. Kristena LaMar, Judge. No. A8412-07487.
Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for appellant - cross-respondent. With him on the briefs were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Stephen L. Brischetto, Portland, argued the cause for respondent - cross-appellant. With him on the briefs was Baldwin & Brischetto, Portland.
Richardson, Presiding Judge, and Newman and Deits, Judges.
Newman
Defendant, a state agency, appeals a judgment for plaintiff in his action for damages and injunctive relief for unlawful employment practices. ORS 659.415; ORS 659.420. The judgment awarded plaintiff $19,443.75 for lost wages, credits for his personal leave, vacation pay and sick pay accounts and a $1,166.63 credit for his retirement account. Defendant assigns as errors that the court denied its motion to dismiss for failure to state a claim, ORCP 21 A , and that it did not "offset" plaintiff's damages for failure to mitigate his damages. Plaintiff cross-appeals and assigns as errors that the court ruled that he should pay his own attorney fees and that it refused to award him prejudgment interest. On the appeal, we reverse and remand; on the cross-appeal, we affirm.
Plaintiff filed the action in December, 1984. He alleged in his first claim for relief that he began to work for defendant as a carpenter on December 1, 1972; that on December 11, 1979, he suffered a compensable back injury;
that on February 28, 1984, he provided defendant a physician's certificate stating that he was released to return to his regular job as a carpenter; that he asked for reinstatement; and that, since March 14, 1984, defendant had refused to reinstate him, although it had carpenter positions available on and after February 28, 1984. On June 3, 1985, defendant moved to dismiss the first claim on the ground that, "by failing to allege tort claims notice pursuant to ORS 30.275, the complaint fails to state a claim for relief." ORCP 21 A . The court denied the motion.
Plaintiff then moved for summary judgment on his first claim. The court granted the motion as to liability, but otherwise denied it. After trial, the court found that, on February 21, 1984, plaintiff's physician released him for work as a carpenter, that on December 11, 1984, defendant offered plaintiff employment as a maintenance repair worker , which he accepted, and that in June, 1985, defendant reinstated plaintiff as a carpenter. The court also found that defendant
had available and suitable employment for plaintiff as a carpenter from March, 1984, to December, 1984. The court's award of back pay and credits covered the period of March, 1984, through May, 1985.
Defendant argues that the court erred when it denied its motion to dismiss, because plaintiff did not plead compliance with the requirements of ORS 30.275(1). Defendant argues that plaintiff's claim is a "tort" within the Oregon Tort Claims Act and that he must plead that he gave notic
Page 1 2 3 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|