Opinion
CV 03-1398-BR.
August 9, 2004
SARI L. LANE, Penn Lane, LLC, Portland, OR, THOMAS S. BOOTHE, Portland, OR, Attorneys for Plaintiff.
PETER R. MERSEREAU, Mersereau Shannon, LLP, Portland, OR, Attorneys for Defendants.
OPINION AND ORDER
This matter comes before the Court on the Motion to Dismiss and Remand (#35) and Motion to Strike (#41) filed by Defendants Charles Eddings, Rick Mishler, Vern Mosser, Dale Lux, Vern Olson, Twila Hill, Kirk Harless, David Jensen, and Kevin Bolen (Individual Defendants) and Defendant Willamina Fire District (WFD).
For the reasons that follow, the Court GRANTS in part and DENIES in part Defendants' Motion to Dismiss and Remand and DENIES Defendants' Motion to Strike.
BACKGROUND
Plaintiff Aileen Bono alleges WFD and the Individual Defendants discriminated against her by subjecting her to disparate treatment and creating a hostile work environment because of her sex. Bono also alleges WFD and the Individual Defendants retaliated against her when she complained about their conduct. In addition, Bono alleges she was constructively discharged when she resigned because of Defendants' discriminatory conduct. Bono asserts a federal claim under 42 U.S.C. § 2000, et seq. (Title VII), and state law claims for unlawful employment practices under Or. Rev. Stat. § 659A.030, wrongful discharge, defamation, defamation per se, and intentional infliction of emotional distress.
Defendants WFD and the Individual Defendants move the Court to dismiss Bono's Title VII claim on the grounds that (1) WFD did not employ a minimum of 15 or more employees at all material times as required to be subject to Title VII and (2) employees cannot be liable under Title VII in their individual capacities.
If the Court dismisses Bono's Title VII claim, Defendants assert the Court either should dismiss the remaining state law claims for lack of subject matter jurisdiction or remand them for further proceedings in state court because the only basis for this Court's jurisdiction is Bono's Title VII claim. If, however, the Court does not dismiss Bono's Title VII claim, Defendants move to dismiss Bono's state law claims against the Individual Defendants on the ground that Oregon's Tort Claims Act bars tort claims against any "officer, employee, or agent of a public body whose act or omission within the scope of their employment or duties gives rise to the action or suit." Or. Rev. Stat. § 30.265(1).
FACTS
For purposes of Defendants' Motion to Dismiss and Remand, the following facts are undisputed or, if disputed, are viewed in the light most favorable to Plaintiff Bono.
Bono served as a volunteer medic for WFD beginning in approximately 1995 and was later employed by WFD as a firefighter beginning in approximately June 2000. Bono resigned on June 25, 2003.
At all material times, WFD employed six paid employees and relied on the services of approximately 30 volunteers.
WFD provides certain benefits to all volunteers, including: workers' compensation coverage based on an "assumed wage" of $800, $10,000 life insurance coverage for death occurring in the course of volunteer service, and reimbursement of expenses based on a variable "point system" depending on the type of services provided by the volunteers. The total amount of expenses reimbursed by WFD to the approximately 30 volunteers on a monthly basis has ranged from $5,100 to nothing over the past three years. Volunteers also receive uniforms, pagers for emergency transmissions, and the use of WFD vehicles to run personal errands during hours on duty.
In February 2002, WFD instituted a "resident volunteer" program for as many as six of the volunteers. Resident volunteers are students enrolled in a two-to-three year course of study in Emergency Medical Service and Fire Fighting at Chemeketa Community College located in Salem, Oregon, and are in training to become ambulance drivers for WFD. WFD pays for their college tuition and school books. Resident volunteers may live at the District Fire Station and are required to work 24-hour shifts every third day. Resident volunteers are paid $200 per month as reimbursement for travel expenses to and from Chemeketa Community College. They also receive meals while they are working, clothing, and miscellaneous expenses.
WFD controls all aspects of the volunteers' duties such as scheduling, training, and conduct pursuant to the provisions of a "Standard Operating Guidelines" governing employees and volunteers.
DEFENDANTS' MOTION TO STRIKE
Defendants move to strike Bono's Affidavit in support of Plaintiff's Response to Defendants' Motion to Dismiss and Remand on the ground that Bono "fails to show affirmatively [that she] is competent to testify to the matters therein" because she "does not claim to have been an administrative employee, nor does she claim she otherwise became personally familiar with the benefits received by other `volunteers.'" In the alternative, Defendants move to strike Bono's statement that WFD volunteers received "some or all of the following compensation" on the ground that Bono does not identify the specific volunteers who received benefits nor the benefits they received.
Bono contends she laid a proper foundation for her statements when she affirmed the information in her Affidavit was based on her "personal knowledge and belief." In the alternative, Bono seeks "time for formal discovery . . . to allow Plaintiff an opportunity to obtain competent testimony and authoritative evidence of compensation and control to support her claim that volunteers are employees."
To support her assertion of personal knowledge, Bono provides her employment and volunteer history with WFD and lists the benefits that volunteer firefighters receive from WFD. The Court notes Bono served both as a volunteer for WFD from 1995 to 2000 and as an employee from 2000 to 2003.
After reviewing Bono's Affidavit, the Court finds Bono laid an adequate foundation for her statements by affirming the information in her Affidavit was based on her personal knowledge. Accordingly, the Court denies Defendants' Motion to Strike.
DEFENDANTS' MOTION TO DISMISS AND REMAND Standards
When a defendant brings a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must consider the allegations in the complaint as true and construe those allegations in favor of the plaintiff. Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir.), cert. denied, 120 S.Ct. 499 (1999). A court should not dismiss a complaint, thus depriving the plaintiff of an opportunity to establish her claims at trial, "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle [her] to relief." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).When a defendant questions the court's subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), the court may look beyond the pleadings and examine affidavits and other documents to resolve the jurisdiction issue. Berardinelli v. Castle Cooke, Inc., 587 F.2d 37 (9th Cir. 1978). The plaintiff has the burden to establish the court has subject matter jurisdiction. Ass'n of Am. Med. Coll. v. United States, 217 F.3d 770 (9th Cir. 2000).
When issues of jurisdiction are intertwined with the merits of the plaintiff's case, the grounds for dismissal under Rule 12(b)(1) are narrower. "A court may not resolve genuinely disputed facts where `the question of jurisdiction is dependent on the resolution of factual issues going to the merits.'" Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (internal citation omitted). "In such a case, the district court assumes the truth of allegations in a complaint or habeas petition, unless controverted by undisputed facts in the record. . . . Dismissal is then appropriate only under the same standards required for dismissal for motions for failure to state a claim under Fed.R.Civ.P. 12(b)(6)." Id. See also Myers v. United States, 883 F. Supp. 526, 530 (D. Or. 1995) (when the question of subject matter jurisdiction is dependent on the resolution of factual issues relevant to the merits, "[a] court may not resolve genuinely disputed facts").
Discussion
1. Subject matter jurisdiction under Title VII.
Title VII applies only to employers who have fifteen or more employees. 42 U.S.C. § 2000e(b). Defendants contend the Court does not have subject matter jurisdiction under Title VII because WFD has only six employees and, therefore, WFD is not subject to Title VII. The issue, however, is whether the thirty volunteers who serve WFD are employees for purposes of Title VII.
In Haavistola v. Community Fire Company of Rising Sun, Inc., a volunteer firefighter brought an action against the volunteer fire company and individuals affiliated with the fire company for, inter alia, sex discrimination under Title VII. 6 F.3d 211 (4th Cir. 1993). The defendants moved for summary judgment on the ground that the plaintiff was not an employee for purposes of Title VII because she was a volunteer. Although the plaintiff did not receive direct compensation from the fire company, she received other benefits, including a state-funded disability pension, survivor's benefits for dependents, scholarships for dependents upon disability or death, benefits under the Federal Public Safety Benefit Act when on duty, group life insurance, tuition reimbursement for courses in emergency medical and fire service techniques, workers' compensation coverage, and tax exemptions for unreimbursed travel expenses. The appellate court reversed the district court's decision that a volunteer who received such benefits was not an employee for purposes of asserting a claim under Title VII because the district court resolved disputed material facts in order to reach its decision:
Because compensation is not defined by statute or case law, we hold that it cannot be found as a matter of law. The district court must leave to a factfinder the ultimate conclusion whether the benefits represent indirect but significant renumeration as Haavistola contends or inconsequential incidents of an otherwise gratuitous relationship as the Fire Company argues.Id. at 221-22.
In Baker v. McNeil Island Corrections Center, the Ninth Circuit reversed the district court's decision that a prison inmate working as a library aide was not an employee of the prison for purposes of asserting a race discrimination claim under Title VII. 859 F.2d 124, 128-29 (9th Cir. 1988). The Haavistola court focused on the "economic realities" of the relationship between the volunteer firefighter and the fire company, but the Baker court focused on the degree of control exercised over the prison inmate in his work assignment:
First, the district court recognized the most important factor to determine whether an employment relationship exists, [which is the extent of the employer's right to control means and manner of the workers' performance], strongly suggested that Baker was an employee. Thus, the court could not be convinced beyond doubt that no set of facts could be proven to entitle Baker to relief. Even if it concluded that `economic realities' removed this doubt, the pleadings state a fact which, construed most favorably to Baker points to the existence of an employment relationship. Baker's pleading refers to `the state librarian [not wanting] to work with a black man.' This allegation supports an inference of an employment relationship between state librarians and the inmate, since the state librarian `work[s] with' the inmate library aide and appears to have a say in hiring.Id. at 128 (citations omitted). The court concluded, "We simply do not know enough about the [library aide] position" to reach a conclusion as a matter of law as to whether the plaintiff was an employee. Id.
Here this matter is before the Court on a Motion to Dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). The Court's determination of whether WFD's volunteer firefighters are employees would resolve the issue of whether WFD is an employer subject to Title VII and, consequently, whether Bono has a Title VII claim. Thus, the issue of jurisdiction in this case is inextricably intertwined with the merits of Bono's Title VII claim. To decide Defendants' Motion to Dismiss, the Court, therefore, applies the standards set forth in Fed.R.Civ.P. 12(b)(6) and also considers the Affidavits of the parties for the purposes of determining whether there are issues of fact to be resolved by the trier-of-fact.
After reviewing the record, the Court finds genuinely disputed facts exist as to whether volunteers who served WFD were employees and, thus, whether WFD is subject to Title VII, as alleged by Bono. Accordingly, the Court denies Defendants' Motion to Dismiss Bono's Title VII claim. See Roberts v. Corrothers, 812 F.2d at 1177. See also Myers v. United States, 883 F. Supp. at 530 (D. Or. 1995).
2. State law claims against Individual Defendants.
Defendants move to dismiss the state law claims against the Individual Defendants on the ground that Oregon's Tort Claims Act bars tort claims against any "officer, employee, or agent of a public body whose act or omission within the scope of their employment or duties gives rise to the action or suit." Or. Rev. Stat. § 30.265(1).
Bono concedes she fails to state a tort claim against the Individual Defendants in her Amended Complaint because she alleges the Individual Defendants acted in the scope of their employment. Under the Oregon Tort Claims Act, the Individual Defendants are immune from any action arising from such conduct. Bono, however, seeks leave to amend her Complaint to allege that "some or all of the acts of defamation and intentional infliction of emotional distress were undertaken outside the scope of [the Individual Defendants'] employment or agency."
Based on this record, the Court finds Bono's state law claims as now plead against the Individual Defendants are barred by Oregon's Tort Claims Act. The Court, therefore, grants Defendants' Motion to Dismiss the state law claims against the Individual Defendants. The Court, however, grants Bono leave to Amend her Complaint as to the state law claims against the Individual Defendants for defamation, defamation per se, and intentional infliction of emotional distress.
CONCLUSION
For these reasons, the Court GRANTS in part and DENIES in part the Motion to Dismiss and Remand (#35) and DENIES the Motion to Strike (#41) filed by Defendants Willamina Fire District, Eddings, Mishler, Mosser, Lux, Olson, Hill, Harless, Jensen, and Bolen. The Court also GRANTS Plaintiff Bono leave to file a Second Amended Complaint consistent with this Opinion and Order no later than August 25, 2004.
IT IS SO ORDERED.