A former Register-Guard reporter may finally get her day in court.
Back in 2015 Serena Markstrom Nugent filed a more than half a million-dollar discrimination lawsuit against Guard Publishing, alleging she was fired after she became pregnant and needed a medical disability leave. That lawsuit was dismissed in 2016.
On Oct. 10, 2018, the suit’s dismissal was overturned by the Oregon Court of Appeals. And on May 23, the Oregon Supreme Court declined to review that decision in Markstrom v. Guard Publishing.
Markstrom Nugent worked at The Register-Guard for more than a decade as an arts and entertainment writer and later as a news reporter. The RG has since been sold to GateHouse Publishing. The paper said she was fired for ignoring orders not to check her email on pregnancy leave.
The news of her controversial firing was one of Eugene Weekly’s most read stories of the year, and read across the country.
After a jury in Judge Josephine Mooney’s courtroom heard arguments on Markstrom Nugent’s case for several days, Mooney dismissed the lawsuit on “spoliation” — before allowing the jury to deliberate. More recently, Gov. Kate Brown appointed Mooney to the Oregon Court of Appeals as of June 3.
Spoliation is destruction of evidence, and in this case referred to the reporter’s alleged deletion of emails and text messages. The spoliation issue had been previously addressed by another judge who ruled that the “sanction of dismissal is not warranted,” letting the case go to trial.
In its October ruling, the Court of Appeals wrote that “we do not understand” how the trial court had “the authority to dismiss a case for destruction of material that might become evidence in potential litigation — actions taken before any request for production is made.”
In other words, Mooney dismissed Markstrom Nugent’s case saying the reporter had destroyed evidence for a potential lawsuit, but she had deleted the messages and emails before they had been requested as evidence in a lawsuit.
Markstrom Nugent argued that not all of her deleted emails and text messages were destroyed, as they had all been backed up and could be recovered.
Another former reporter, Randi Bjornstad, was fired shortly after Markstrom Nugent’s suit was dismissed. Bjornstad says she was fired “because of my efforts on Serena’s behalf as a union representative.” Bjornstad is still on the Eugene Newspaper Guild executive board and its bargaining team.
Bjornstad challenged her own firing, and an arbitrator overturned it in 2017.
“Legally, I am thrilled that the state Court of Appeals ruled that Judge Josephine Mooney erred in dismissing Serena Markstrom’s lawsuit against The Register-Guard instead of sending it to the jury, and that the Oregon Supreme Court now has declined to review the appeals court’s decision,” Bjornstad says.
She adds, “The remedy, as I understand it, is to go back and retry the case — or settle it out of court. I can’t speak for Serena, but I would hope that she and her attorneys feel reinvigorated by these victories and have no qualms about seeing the case decided by a jury, as it should have been all along.”
Wendy Baker is an attorney and member of the Baker family who previously owned the RG. Baker worked in Human Resources at the RG and fired both Markstrom Nugent and Bjornstad.
Baker says of the ruling, “While we are disappointed that the Supreme Court did not take review, we will be going back to the trial court to allow the judge to further elaborate on her reasons for dismissing the case, as directed by the Court of Appeals.”
Bjornstad adds, “I also hope that my being fired by the RG’s Wendy Baker shortly after Serena’s suit was dismissed — and my vindication, factually and financially, through arbitration a year later — might be helpful if the case goes to trial again.”
Since being sold to GateHouse, the RG has slashed its news staff. Most recently three employees were laid off as part of GateHouse layoff across the country, and two other employees, including a news reporter, were also let go in recent weeks.