122 August 12, 2026 No. 758
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
TODD MITCHELL,
individually, under ORS 659A.030(1)(g),
Petitioner,
and
FREHOO, INC.,
dba Stars Cabaret & Steak House, et. al.,
Respondents Below.
v.
BUREAU OF LABOR AND INDUSTRIES OF THE
STATE OF OREGON
Respondent.
Oregon Bureau of Labor and Industries
3716;
A183925
On respondent’s petition for reconsideration filed June 3, 2026. Precedential opinion filed May 13, 2026. Mitchell v. BOLI, 349 Or App 520, ___ P3d ___.
Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, for petition.
Before Aoyagi, Presiding Judge, Kamins, Judge, and Pagán, Judge.
KAMINS, J.
Reconsideration allowed; former opinion modified and adhered to as modified.
Cite as 352 Or App 122 (2026) 123
KAMINS, J.
The Bureau of Labor and Industries (BOLI) seeks
reconsideration of our opinion in Mitchell v. BOLI, 349 Or App 520, ___ P3d ___ (2026). BOLI contends that our description of the procedural history in Frehoo, Inc. v. BOLI, 319 Or App 548, 510 P3d 888 (2022) may unintentionally imply that BOLI reconsidered Frehoo’s liability. We agree. We allow reconsideration, modify our prior opinion as described below, and adhere to the opinion as modified.
As part of our discussion of the procedural history of this case, we described Frehoo and BOLI’s subsequent amended final order:
“Respondents appealed, and we reversed after determining
that BOLI applied a legal standard to impose aider-and-abettor liability that was not found in the statute. Id. at 564-66.
On remand, BOLI issued an amended final order, again
determining that Frehoo was liable for subjecting AP2
to sex discrimination in violation of ORS 659A.030(1)(b).
BOLI also determined that, applying the correct statutory
language, petitioner, but not the other two owners, was liable for aiding and abetting sexual harassment in violation
of former ORS 659A.030(1)(g) (2021) because petitioner was
responsible for enforcing Frehoo’s sexual harassment policies and failed to do so, and he should have known that
failing to enforce the policies would likely result in sexual
harassment.”
349 Or App at 522-23.
Omitting our initial affirmance of Frehoo’s liability coupled with a summary of BOLI’s amended final order that includes Frehoo’s liability could be read to imply that BOLI reconsidered Frehoo’s liability. Accordingly, we strike the above-quoted passage and replace it with:
“Frehoo and the individual owners appealed. We affirmed
as to Frehoo but reversed and remanded as to the individual
owners, determining that BOLI applied a legal standard to
impose aider-and-abettor liability that was not found in the
statute. Id. at 564-566. On remand, BOLI issued an amended
final order. BOLI determined that, applying the correct statutory language, petitioner, but not the other two owners, was
liable for aiding and abetting sexual harassment in violation 124 Mitchell v. BOLI
of former ORS 659A.030(1)(g) (2021) because petitioner was
responsible for enforcing Frehoo’s sexual harassment policies and failed to do so, and he should have known that
failing to enforce the policies would likely result in sexual
harassment.”
BOLI also notes that in the first paragraph of the opinion, we twice refer to BOLI as “the board.” We strike those two uses of “the board” and replace them with “BOLI.”
Reconsideration allowed; former opinion modified
and adhered to as modified.