“To me, The Register-Guard was like a hero of mine,” says Serena Markstrom, former RG entertainment writer and reporter. “When money was low, my mom would cancel cable before she canceled The Register-Guard. We, I, grew up with The Register-Guard.”
Markstrom even worked delivering the newspaper while she was in middle school. So she says it came as a shock that the paper she later spent 12 years working for as a journalist fired her for checking her work email while on pregnancy disability leave in March 2014.
“It really damaged my self-esteem as a professional,” she says.”Have I just been incompetent this whole time? Nobody told me. Have I just been roaming free being horrible?”
Almost a decade after Markstrom was terminated, the case was settled with a legal precedent as much at stake as the issue of whether Markstrom’s firing was legal.
Markstrom says she was accessing her email while on disability leave to send herself some of the positive notes readers had sent her over the years. She also mailed some evidence to then-Eugene Newspaper Guild union co-president Randi Bjornstad who needed to draft up a counter-offer to the separation offer then-RG General Counsel and Human Resources Director Wendy Baker offered to her while on leave.
Markstrom then deleted all the emails from her sent folder.
According to the court documents, the RG decided it wanted Markstrom to “end her employment” and Baker, a member of the family who owned the paper, had offered her a voluntary layoff, which included an agreement not to sue the RG.
Baker did not respond to emailed requests from Eugene Weekly for comment.
“Serena’s life and career were unfairly and unnecessarily upended and forever affected by those in charge at The Register-Guard,” Bjornstad says in an emailed statement.
Markstrom says she came to realize after her sudden termination that the higher-ups at the paper had “been building evidence” to make her firing legitimate and legal.
In 2018, GateHouse Media (now merged with Gannett) purchased the RG from the Baker family for an undisclosed amount. The Baker family kept all previous litigation from before the acquisition.
Markstrom says the case started when she became pregnant with her first child. In December 2013, Markstrom was placed on a performance improvement plan (PIP), which threatened termination on Feb. 14, 2014, unless the issues described in the plan were fixed.
The problems began after the RG moved Markstrom from her “specialty” entertainment and arts beat to what she calls a “Frankenstein hybrid beat” that covered Springfield, the coast and rural news during a period of restructuring and layoffs at the paper in December 2012.
She says her last couple of months at the paper felt miserable due to pregnancy-based discrimination, harassment, retaliation and a hostile work environment. Markstrom says that the stress of the PIP threatened the health of her pregnancy and could even have led to preterm labor or a stillbirth. Her doctor put her on the pregnancy disability leave.
My doctor “told me it could literally kill the baby,” she says. “I remember sitting in my car, just bawling my eyes out.” She adds, “My whole world started crashing down around me.”
She suspected her pregnancy played a role in her termination. “To me, it seemed really weird that right after I told them I was pregnant, they started having all these meetings,” Markstrom says. She found out during the trial that “the day after I turned in my paperwork for maternity leave, the editors were circulating the seven tests of just-cause termination.”
The seven tests of just-cause termination — fair notice, prior enforcement, due process, substantial evidence, equal treatment, progressive discipline, and extenuating and mitigating circumstances — help protect workers from being unjustly fired
According to court documents, The Register-Guard fired Markstrom for being “dishonest, insubordinate and having destroyed company property.” The destruction of company property was the deletion of around 400 emails. Markstrom says she believed that even if she deleted the emails, they would still be backed up on the RG’s servers.
A little over a year after her termination she filed a civil suit, Markstrom v. Guard Publishing, claiming gender discrimination, a hostile work environment, retaliation and an Oregon Family Leave Act violation, and seeking $525,000.
“I wanted my day in court. Because, in a way, I wasn’t sure what happened,” Markstrom says. “If somebody can collect all the information and make sense of this for me, then maybe this horrible experience in my life can come to some kind of a rest.”
On Sept 20, 2016, Judge Josephine H. Mooney accepted the RG’s proposed judgment for dismissal after the case was already in front of a jury. Mooney dismissed it with prejudice based on “spoliation of evidence” before closing arguments and before the jury could render a verdict. She also ordered Markstrom to pay $5,531 in attorney’s fees to the RG.
This led to six more years of litigation. “A lot of people thought I lost that whole time,” Markstrom says. “They didn’t realize that it never got decided, or they thought the dismissal had something to do with the main facts of the case.”
The spoliation — the destruction of evidence — was the deletion of those sent emails prior to litigation. The pre-trial judge determined there had been spoliation, but left it up to the trial judge to determine what the penalty should be.
Mooney based her decision on “clear, purposeful and methodical” destruction of evidence that occurred while Markstrom should have known that litigation would have been “reasonably foreseeable,” and dismissal of the case would be just because no other action “would be more destructive to our judicial system.”
“Even if something was missing, it would have been redundant, because they had 27,000 pages of my innermost thoughts, text messages, emails and Facebook messages with all my friends,” Markstrom says. “They had my therapy notes.”
Markstrom and her attorneys won appeals of that ruling in July 2019 and again in June 2022. She says she feels positive that she helped overturn a ruling that she believed is a bad precedent. The appeals court ruled against Mooney, saying that the judge doesn’t have the authority to dismiss a whole case based on spoliation that occurred before litigation.
The Court of Appeals wrote that Mooney’s dismissal had failed to “properly support its exercise of discretion.” According to the ruling, the trial court needed to consider how the deletion of the emails would affect the case and neglected to do so.
Markstrom says all she really wanted was to hear her claims validated. “I checked out of this so hard. This is not what I did this for,” she says. “It’s frustrating, because it’s not what it’s about, right? It’s just this circus sideshow.”
The case was scheduled for July 25, and Markstrom would finally have her day in court, but she felt so exhausted from the process that she wanted it to be over.
She decided to accept an out-of-court offer from the Baker family, which as part of the agreement is for an undisclosed amount “It was a really hard decision for me because I really wanted that jury verdict,” she says.
This story has been updated to reflect the Bjornstad did respond to the reporter’s request for comment via an emailed statement.
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