Summary
In Vilches, the court held that the Plaintiff's Section 1983 claim was barred by the Oregon Court of Appeals' affirmation of the FDAB decision.
Summary of this case from Bellairs v. Beaverton School DistrictOpinion
CV 02-294-AS.
July 23, 2004
ORDER
Magistrate Judge Ashmanskas issued a Findings and Recommendation in this action (Doc. #50), in which the Magistrate Judge recommended granting defendants' Motion for Summary Judgment. Plaintiff filed objections to the Findings and Recommendation. Defendants then filed a response to plaintiff's objections. On June 7, 2004, the matter was referred to this court.
When a party objects to any portion of the Magistrate's Findings and Recommendation, the district court must conduct a de novo review of that portion of the Magistrate's report. 28 U.S.C. § 636(b)(1)(B); McDonnell Douglas Corp. v. Commodore Bus. Mach. Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
The court has given the file of this case a de novo review, and has also carefully evaluated the Magistrate's Findings and Recommendation, the objections, and the entire Record. The Judge's reasoning and recommendations are sound, correct, and entitled to adoption.
BACKGROUND
Judge Ashmanskas provided a thorough recital of the factual background of this case in his Findings and Recommendation and there is no need to repeat it at length here. Plaintiff is a Hispanic male and worked as a licensed teacher for defendant Multnomah Education Service District (MESD). In early 2001, defendant eliminated plaintiff's position due to budget cuts. In July 2001, plaintiff accepted a position with defendant in its Functional Living Skills Program (FLS), a program for students with developmental disabilities. The program had two locations, the Life Skills Center (Center) and the Present Tense Store (Store). Plaintiff's duties included assessing the students' educational needs and achievements and regularly interacting with students, parents, and staff. Within the first four months of plaintiff's assignment to the FLS program, several employees and parents had complained of unpleasant encounters with plaintiff, including a mother who notified plaintiff's supervisor, defendant Freni-Rothschild, that plaintiff had verbally and physically harassed her son, JP.
In November 2001, plaintiff was informed that he was not to have any contact with JP. Plaintiff later contacted several parents of the students in the FLS program, with the intent, according to plaintiff, of warning them of JP's escalating dangerous behavior. The following month on December 17, 2001, plaintiff gathered students at the Center and told them that there was a safety concern with another student and that those students assigned to the Store that day should not go. After repeated requests by defendant's employees, plaintiff refused to send the students to the Store.
Plaintiff was placed on administrative leave on December 17, 2001, and was terminated in March 2002.
Plaintiff sought independent review of his dismissal before the Oregon Fair Dismissal Appeals Board (FDAB). A four-day hearing was held in which the parties presented witnesses and argument. The FDAB subsequently issued a twenty-seven page opinion of factual findings and conclusions of law, upholding plaintiff's dismissal as not "unreasonable, arbitrary, or clearly an excessive remedy." The FDAB found that plaintiff's dismissal was reasonable due to evidence of insubordination and neglect of duty, but declined to uphold "inadequate performance" as a basis for the dismissal. Plaintiff appealed the FDAB decision to the Oregon Court of Appeals, which affirmed without opinion. The Oregon Supreme Court denied plaintiff's petition for review.
STANDARDS
Summary judgment is required when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). That burden may be met by showing that there is an absence of evidence to support the nonmoving party's case. Id. at 325. Once the moving party has met its initial burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and identify facts which show a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. Id. at 249. The court must view the evidence in the light most favorable to the non-moving party. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Texas Partners v. Conrock Co., 685 F.2d 1116, 1119 (9th Cir. 1982). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Jewel Companies, Inc. v. Pay Less Drug Stores, N.W., Inc., 741 F.2d 1555, 1566 (9th Cir. 1984).
Claim preclusion bars the re-litigation of claims previously tried and decided. Clark v. Bear Stearns Co., 966 F.2d 1318, 1320 (9th Cir. 1992). It prevents the subsequent application of all defenses that could have been asserted in a prior action between the same parties on the same cause of action, even if such contentions were not raised. Id. However, when a ground of recovery or defense could not have been asserted in the prior action, the defense or ground of recovery falls outside the scope of claim preclusion. Id. at 1321.
Under the doctrine of issue preclusion, preclusive force attaches to determinations that were necessary to support the adjudicator's resolution in the first action. Segal v. Am. Tel. Tel. Co., Inc., 606 F.2d 842, 845 n. 2 (9th Cir. 1979). In deciding whether two issues are identical for purposes of issue preclusion, courts have adopted a four-prong analysis: (1) whether there is a substantial overlap between the evidence or argument advanced in the second proceeding and that advanced in the first; (2) whether the new evidence or argument involve the application of the same rule of law as that involved in the prior proceeding; (3) whether pretrial preparation and discovery related to the matter presented in the first action could reasonably be expected to have embraced the matter sought to be presented in the second; and (4) the relational proximity of the claims involved in the two proceedings. Steen v. John Hancock Mut. Life Ins. Co., 106 F.3d 904, 912 (9th Cir. 1997) (citation omitted).
ANALYSIS
Plaintiff asserts five bases for challenging the Magistrate Judge's Findings and Recommendation. Plaintiff alleges that the Magistrate Judge erred by: (1) failing to apply a mixed-motive analysis to plaintiff's free speech whistle-blower claim brought under 42 U.S.C. § 1983; (2) finding that plaintiff could have raised defenses in the state appellate courts; (3) failing to construe additional facts in the light most favorable to plaintiff; (4) failing to apply the appropriate issue preclusion standard; and (5) failing to follow the appropriate standard for summary judgment. This court analyzes these objections in turn.
1. Plaintiff's Free Speech Whistle-Blower Claim under Section 1983
Plaintiff asserts that in evaluating his free speech whistle-blower retaliation claim, the Magistrate Judge should have applied the mixed-motive analysis articulated in Keyser v. Sacramento Unified School District, 265 F.3d 741 (9th Cir. 2001), instead of the burden-shifting analysis set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). However, the Magistrate Judge found earlier in his opinion that under the doctrine of issue preclusion, plaintiff's Section 1983 claim and his pendent claim for violation of Oregon's whistle-blower statute were barred by the FDAB's prior adjudication of his case.
It is well-settled that prior state court proceedings have preclusive effect in subsequent actions alleging violations of state law and violations of Section 1983. See, e.g., Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75 (1984); Allen v. McCurry, 449 U.S. 90, 96 (1980). The FDAB found that plaintiff was guilty of insubordination and that his insubordinate acts were not justified. The FDAB also found that MESD's dismissal of plaintiff was well-grounded and not motivated by preference, bias, prejudice, or convenience. The Oregon Court of Appeals affirmed the FDAB's findings. In reviewing plaintiff's objections to the Findings and Recommendation and the accompanying argument, this court finds that there is a substantial overlap between the evidence and argument presented before the FDAB and the Oregon Court of Appeals and the evidence and argument that plaintiff sought to advance before the Magistrate Judge. The FDAB acted in a judicial capacity, it resolved disputed facts properly before it, and the parties had an adequate time to litigate. Accordingly, the Magistrate Judge correctly concluded that the judgment of the Oregon Court of Appeals had preclusive effect on plaintiff's current litigation. Because the FDAB's recommendation for dismissal of plaintiff's case focused on plaintiff's inability to establish a causal connection between his alleged protected speech and his termination, it was irrelevant whether the Magistrate Judge proceeded with his inquiry under the burden-shifting or the mixed-motive analysis; the result would have been the same.
2. Plaintiff's Opportunity to Raise a Defense in the Oregon Court of Appeals
Plaintiff argues that the Magistrate Judge incorrectly found that plaintiff could have asserted his Rehabilitation Act claim and his Section 1983 claim as defenses before the Oregon Court of Appeals and could have named defendants Freni-Rothschild, Jorgensen, and Schmitt as defendants in plaintiff's appeal for violations of Section 1983. Plaintiff contends that the Magistrate Judge cited no authority for any of these conclusions and that plaintiff was confined to the administrative record in his appeal. For the reasons provided above, this court finds that the Magistrate Judge properly concluded that plaintiff's claims and, correspondingly, his defenses could have been raised below.
In addition, the doctrine of nonmutual defensive issue preclusion bars plaintiff's claims against the individual defendants Freni-Rothschild, Jorgensen, and Schmitt. As stated above, a final judgment has been rendered. At the hearing before the FDAB, plaintiff asserted that defendant MESD discharged him in retaliation. As an entity, MESD is only able to act through its agents, including the individual defendants. Accordingly, there was privity between the parties. Plaintiff had the opportunity to litigate his claims against these defendants because they were present at the FDAB hearing as witnesses and subject to cross-examination. Accordingly, this court finds that the Magistrate Judge properly reasoned that the doctrine of issue preclusion prevented plaintiff from further litigating the individual defendants' liability.
3. Plaintiff's Additional Facts
Plaintiff contends that the Magistrate Judge set forth the incorrect standard for considering additional facts and in any event, did not construe the facts in a light most favorable to plaintiff. Plaintiff's Response to the Concise Statement of Material Facts sets forth facts beyond what defendants recite in their Concise Statement of Facts. Defendants did not reply to these "additional" facts. Under the court's local rules, the moving party must respond to the other party's recitation of "relevant material facts which are at issue, or are otherwise necessary for the court to determine. . . ." Local Rule 56.1(b). Material facts provided in the non-moving party's response to a concise statement of material facts will be deemed admitted unless specifically denied. Local Rule 56.1(f). Thus, plaintiff argued to the Magistrate Judge and makes the same argument here, that those "additional" facts to which defendants did not respond should have been deemed admitted. However, because this court has determined that the Magistrate Judge correctly concluded that the FDAB findings were binding, any facts set forth in plaintiff's response that were inconsistent with the FDAB findings were not additional facts and did not call for a response. This court also follows the Magistrate Judge's finding that those facts set forth in plaintiff's response that were not inconsistent with the FDAB's findings are additional facts and deemed admitted to the extent that they are necessary for the court's determination.
Plaintiff argues that the facts set forth in his response should be deemed admitted and considered by this court, including allegations that defendants failed to report alleged abuse by JP and that plaintiff was familiar with JP's allegedly violent behavior. This court finds that these and the other "additional" facts are immaterial and not necessary to determine the issues before this court. The FDAB found that plaintiff was discharged solely for his insubordination and neglect of duty. Even if plaintiff's "additional" facts were deemed admitted, they were collateral issues to the FDAB's ultimate determination and are of no consequence to this court's review. As for plaintiff's further objection that the Magistrate Judge did not construe the facts in the light most favorable to plaintiff, to the extent the Magistrate Judge bound himself to the findings of the FDAB, this court finds that the facts were construed in the light most favorable to plaintiff.
4. Issue Preclusion
In support of his argument that the Magistrate Judge applied the incorrect standard of issue preclusion, plaintiff asserts that on the question of pretext the Magistrate Judge improperly drew conclusions not supported by the FDAB's findings. Specifically, the Magistrate Judge found that had plaintiff sent the students to the Store on December 17 as directed they would have been protected because Freni-Rothschild and other staff members were present, a finding that plaintiff contends does not flow from the FDAB's opinion. This court disagrees.
The FDAB found that plaintiff repeatedly disobeyed Freni-Rothschild's orders to send the students to the Store. Consequently, Freni-Rothschild had to leave her office and drive to the Center to take over supervision of the students. Plaintiff argued before the FDAB that his refusal to send the students to the Store was reasonable and justified because JP presented a harm to others. The FDAB rejected this argument, finding that it was not reasonable for plaintiff to believe that JP posed a threat. Accordingly, it was appropriate for the Magistrate Judge to apply issue preclusion to prevent plaintiff from re-litigating this matter.
5. Standards for Summary Judgment and Issue Preclusion
Plaintiff argues that the issues presented before the Magistrate Judge were not identical to nor essential to the prior proceeding. The FDAB, plaintiff asserts, did not consider each of the elements of plaintiff's claims, including the Rehabilitation Act claim, the whistle-blower claim, or the Section 1983 claim. Rather, the FDAB focused on whether the allegations pertaining to plaintiff's performance were adequate to justify the statutory grounds defendant relied upon in dismissing plaintiff. However, what plaintiff fails to recognize is that to prevail on summary judgment, defendant need only establish the absence of one element of plaintiff's claim as a matter of law.
The FDAB determined that plaintiff was guilty of insubordination and neglect of duty. Plaintiff defended against these charges by claiming that defendants retaliated against him by terminating him. A necessary element to the defense of retaliation is that a retaliatory or discriminatory purpose was a substantial motivating factor in the employer's decision to terminate an employee. Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir. 2003). The FDAB rejected plaintiff's defense, stating that defendants' dismissal of plaintiff was justified and not based on preference, bias, prejudice, or convenience. Thus, defendants' motive for terminating plaintiff was litigated before the FDAB and was necessary to the FDAB's determination of plaintiff's claims. Plaintiff raised the same issue before the Magistrate Judge under the Rehabilitation Act, the whistle-blower statute, and Section 1983. Because this court has determined that the Magistrate Judge properly applied preclusive effect to the claims plaintiff litigated below, it was appropriate for the Magistrate Judge to affirm the FDAB's conclusion that as a matter of law plaintiff was unable to prove an essential element of each of his claims.
CONCLUSION
For the aforementioned reasons, the court adopts Judge Ashmanskas' Findings and Recommendation (Doc. # 50). Accordingly, this case is DISMISSED with prejudice.
IT IS SO ORDERED.