Daniel v. Oregon Health & Sciences University et al

Motion for Partial Summary Judgment . Oral Argument requested.

D. Or.June 5, 2017

Karen O'Kasey, OSB No. 870696 E-mail: kok@hartwagner.com Jonathan Rue, OSB No. 115106 E-mail: jgr@hartwagner.com HART WAGNER LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Telephone: (503) 222-4499 Facsimile: (503) 222-2301 Of Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION SARENA DANIEL, an individual, Plaintiff, v. OREGON HEALTH & SCIENCES UNIVERSITY, an Oregon Public University, DAVID SCOTT, an individual, in his individual and official capacity, Defendants. CaseNo.3:17-cv-00542-SI DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT Oral Argument Requested LR 7-1 CERTIFICATE The undersigned counsel represent that the parties have conferred and made good faith efforts to resolve the subjects of this motion but were unable to do so. /// /// Page 1 - DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT HART WAGNER LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Telephone: (503) 222-4499 Facsimile: (503) 222-2301 Case 3:17-cv-00542-SI Document 5 Filed 06/05/17 Page 1 of 12 MOTION Pursuant to FRCP 56 and Local Rule 56-1, defendants Oregon Health & Science University ("OHSU") and David Scott move for partial summary judgment on (1) plaintiffs federal claims under Title VII (42 U.S.C. § 2000e); (2) plaintiffs retaliation claim under ORS 659A.203; and (3) plaintiffs disability claim under 42 U.S.C. § 1983. This motion is supported by the following Memorandum, the Declaration of Karen O'Kasey, and all pleadings filed herein. MEMORANDUM IN SUPPORT OF MOTION I. Introduction. This is an employment discrimination and retaliation claim against OHSU and its employee David Scott ("Scott"). Plaintiff, an OHSU food services employee, brings four claims: (1) sex discrimination under 42 U.S.C. § 2000e-2(a); (2) retaliation under 42 U.S.C. § 2000e- 3(a); (3) an Equal Protection claim pursuant to 42 U.S.C. § 1983; and (4) a public employee whistleblower claim pursuant to ORS 659A.203. For the reasons below, plaintiffs state statutory claim and the 42 U.S.C. § 2000e claims are barred by the applicable statutes of limitation. To the extent plaintiffs 42 U.S.C. § 1983 claim is based on an alleged disability, that claim is not available as a matter of law. II. Statement of Material Facts. Plaintiffwas hired by OHSU in August of2014. (Am. Compl.,15; Doc. No. 1-14.) She remains employed at OHSU. (Am. Compl, 127; Doc.No. 1-14.) Plaintiffalleges that she was sexually harassed by defendantScott. (Am.Compl, ffif 8-14 ; Doc.No. 1-14.) Plaintiffalleges that as a result ofreporting the sexual harassment and requesting a reasonable accommodation for an alleged disability, OHSUretaliated and discriminated against her. (Am. Compl, 128; Doc. No. 1- 14.) The latest dateof discriminatory or retaliatory conduct alleged is July21, 2015. (Am. Compl, Page 2 - DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT HART WAGNER LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Telephone: (503) 222-4499 Facsimile: (503) 222-2301 Case 3:17-cv-00542-SI Document 5 Filed 06/05/17 Page 2 of 12 1f 19; Doc. No. 1-14.) On November 12,2015, plaintiff filed a complaint with the Oregon Bureau of Labor and Industries ("BOLI"), co-filed with the Equal Employment Opportunity Commission ("EEOC"), alleging violations of ORS 659A.030 and ORS 659A.112. (O'Kasey Decl, Ex. 101.) On May 6, 2016, BOLI issued a right-to-sue letter to plaintiff. (O'Kasey Decl, Ex. 102.) Plaintiff had 90 days from May 6,2016 to file suit on her state law claims. ORS 659A.875; ORS 659A.880. On June 27, 2016, the EEOC issued its right-to-sue letter. (O'Kasey Decl, Ex. 103.) On receipt, plaintiff had 90 days to file suit on her federal claims. 42 USC § 2000e-5(f)(l). Plaintiff admits that she received the EEOC right-to-sue notice "sometime after June 27, 2016." (Declaration of Sarena Daniel, f 6; Doc. No. 1-9.) The exact date that plaintiff received the EEOC notice is not clear, but plaintiff admits it was within the 90 days ofher original state court complaint. (Am. Compl, If 29; Doc. No. 1-14.) On July 27,2016, plaintiff sent OHSU a tort claims notice. (O'Kasey Decl, Ex. 104.) Plaintiff filed this lawsuit on September 22, 2016 in Multnomah County Circuit Court. Plaintiffs claims were originally based solely on state law. (Compl; Doc. No. 1-2.) Defendants moved for summary judgment because the claims were all time-barred under ORS 659A.875, plaintiff had failed to give timely tort claim notice under ORS 30.275, and plaintiff could not assert an ORS 659A.199 claim against a public entity. The motion was granted. (Order on Defs.' MSJ; Doc. No. 1-12.) The court gave plaintiff leave to amend to plead federal claims or other state law claims not subject to the order on summary judgment. Id. On March 15,2017, plaintiff filed an Amended Complaint alleging: (1) Sex discrimination under 42 U.S.C. § 2000e-2(a); Page 3 - DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT HART WAGNER LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Telephone: (503) 222-4499 Facsimile: (503) 222-2301 Case 3:17-cv-00542-SI Document 5 Filed 06/05/17 Page 3 of 12 (2) Retaliation under 42 U.S.C. § 2000e-3(a); (3) Public employee whistleblower retaliation under ORS 659A.203; and (4) An Equal Protection violation under 42 U.S.C. §1983. (Am. Compl; Doc. No. 1-14.) III. Summary Judgment Standard. One ofthe principal purposes of a summary judgment motion is to dispose of factually unsupported claims. Celotex Corp. v. CatretU 477 U.S. 317, 323-24,106 S.Ct. 2548 (1986). It is not a disfavored procedural shortcut, but instead is the principal tool by which factually or legally insufficient claims or defenses can be prevented from going to trial with the attendant unwarranted consumption of private and public resources. Id. at 327. If the resolution of an existing factual dispute would not affect the outcome of the summary judgment motion, the court may grant summary judgment. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). A ruling on this motion does not require resolution of the merits ofplaintiffs claims because the claims moved against are barred as a matter of law. IV. Memorandum of Law. Plaintiffs new state law claim under ORS 659A.203 suffers from the same defect as the prior state law claims. It is time-barred because: (1) it was not filed within one year of the alleged unlawful employment practice; (2) plaintiff never filed a 659A.203 claim with BOLI within one year so as to "toll" the one-year statute of limitation in ORS 659A.875; and (3) timely tort claim notice was never given as required by ORS 30.275. Plaintiffs federal law claims under 42 U.S.C. § 2000e are also untimely because they were not brought within 90 days ofher receipt of the EEOC right-to-sue letter and do not "relate Page 4 - DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT HART WAGNER LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Telephone: (503) 222-4499 Facsimile: (503) 222-2301 Case 3:17-cv-00542-SI Document 5 Filed 06/05/17 Page 4 of 12 back" to the untimely state law complaint. Plaintiffs Equal Protection claim cannot be based on alleged disability as a matter of law. It is well-established that the remedies available under the Americans with Disabilities Act ("ADA") and its statutory scheme preclude Equal Protection claims against public employers. A. Plaintiffs ORS 659A.203 Claim Was Not Brought Within the One-Year Statute of Limitations in ORS 659A.875 and Should Be Dismissed. Plaintiff never filed a BOLI complaint alleging violation of ORS 659A.203. Plaintiff had two options in asserting any 659A.203 claim — she could bring a BOLI complaint within one year or file a lawsuit within one year. She did neither. (O'Kasey Decl, Ex. 101.) The applicable statute of limitations for a claim not raised in a BOLI complaint is one year from the date of the alleged unlawful practice. ORS 659A.875(1). The last unlawful employment action alleged is July 21,2015. Plaintiff had to file a BOLI complaint or a lawsuit by July 21,2016. This complaint was not filed until March 15, 2017. Plaintiff may argue that she brought an ORS 659A.203 claim in her original BOLI complaint. The plain language of ORS 659A.820, which sets forth requirements of a complaint, states that a factual summary of the acts or omissions is necessary. ORS 659A.820(2). Plaintiff did not include an ORS 659A.203 claim when she filed the BOLI complaint and as a result, cannot relate that claim back to her earlier BOLI complaint. (O'Kasey Decl, Ex. 101.); Baker v. MaricleIndustries, Inc., 2017 WL 1043282, *2 (D. Or. March 17, 2017). B. The ORS 659A.203 Claim is Barred in Any Event. Even if plaintiffs ORS 659A.203 claim was somehowincluded in the BOLI complaint, it is still time-barred. BOLI dismissedplaintiffs complainton May 6, 2016. Plaintiffhad 90 days from that date — or until August 4, 2016 — to file any lawsuit. ORS 659A.875(2);Sharer v. Oregon, 481 F.Supp.2d 1156, 1163-65 (D. Or. 2007) (claimsdismissedas untimelyunder ORS Page 5 - DEFENDANTS' MOTION FOR PARTIAL hart wagner llp SUMMARY JUDGMENT 100° SW' Broadway> Twentieth Floor Portland, Oregon 97205 Telephone: (503) 222-4499 Facsimile: (503) 222-2301 Case 3:17-cv-00542-SI Document 5 Filed 06/05/17 Page 5 of 12 659A.875(2) where plaintiff failed to file within 90 days of the date BOLI sent final determination letter). Plaintiff did not file suit until September 22,2016, outside the 90-day time requirement. In Sharer, the Court held that a plaintiff may not ignore the 90-day BOLI filing requirement because of an EEOC notice sent after a BOLI dismissal. Sharer, 481 F.Supp.2d at 1164 (plaintiffs claims under chapter 659A were time-barred when filed more than 90 days after mailing of the BOLI dismissal but less than 90 days after an EEOC dismissal). In an unpublished decision cited by Sharer, this Court dismissed state law claims as untimely because they were brought 92 days after the BOLI dismissal even though the federal claim was timely filed because the EEOC's 90-day timeframe had not expired. Snook v. Rabold, No. CV 06-849-MO, 2006 WL 2934274 (D. Or. Oct. 12, 2006) (decision attached). Plaintiffs claim under ORS 659A.203 is untimely because it was filed 139 days after May 6, 2016 (49 days late). C. Plaintiffs State Law Claim is Barred by ORS 30.275. All state law tort claims, including unlawful employment practices claims, against OHSU and its employees are subject to the Oregon Tort Claims Act ("OTCA"). ORS 30.267; Brinkley v. Oregon Health Sciences Univ., 94 Or. App. 531, 535-36, 766 P.2d 1045 (1988), rev den 307 Or. 571, 771 P.2d 1021 (1989) (unlawful employment practices claims are subject to ORS 30.275 notice requirements). ORS 30.275 provides that an action may not be brought against a public body or public employee unless tort claim notice is provided within 180 days of the alleged harm. ORS 30.275(1); (2)(b). Tort claim notice can be: (1) formal notice; (2) actual notice; or (3) commencement of suit within the 180-day timeframe. ORS 30.275(3). Plaintiff has the burden ofproving timely tort claim notice. ORS 30.275(7). Plaintiff alleges tortious conduct through Page 6 - DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT HART WAGNER LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Telephone: (503) 222-4499 Facsimile: (503) 222-2301 Case 3:17-cv-00542-SI Document 5 Filed 06/05/17 Page 6 of 12 July 21, 2015. (Am. Compl, 119.) Plaintiff did not provide notice until July 27, 2016, well outside the 180-day statutory time limit. "Formal" notice of a claim is defined as a written communication that informs the public body of a claim for damages against it, provides a description of the circumstances giving rise to the claim, and provides the claimant's contact information. ORS 30.275(4). "Actual" notice exists when a plaintiff specifically indicates that a lawsuit will be filed based on particular actions. ORS 30.275(6); McCabe v. State ofOregon, 108 Or.App. 672, 676, 816 P.2d 1192 (1991), affd, 314 Or. 605, 841 P.2d 635 (1992). Actual notice "is a communication that (1) allows the recipient to acquire 'actual knowledge of the time, place, and circumstances' that give rise to the specific claim or claims that the plaintiff ultimately asserts; and (2) would lead a reasonable person to conclude that the plaintiff has a general intent to assert a claim." Plug v. Univ. ofOregon, 335 Or. 540, 554, 73 P.3d 917 (2003). Filing a BOLI complaint does not satisfy the tort claim notice requirements of ORS 30.275. Shepardv. CityofPortland, 829 F.Supp.2d 940, 958 (D. Or. 2011) (rejecting plaintiffs argument that BOLI complaint constituted actual notice); Lucke v. Multnomah Cty., CV-06- 1149-ST, 2008 WL 4372882 at *22 (D. Or. Sept. 22,2008), ajf'd, 365 Fed. Appx. 793 (9th Cir. 2010) ("A BOLI complaint does not provide actual notice of a plaintiffs intent to file a lawsuit because a plaintiff is not required to file a BOLI complaint prior to filing an employment discrimination suit under state law."). The latest date of unlawful conduct alleged in the Complaint is July 21, 2015. (Am. Compl, Tf 19; Doc. No. 1-14.) Plaintiff did not provide OHSU with a tort claim notice until July 27, 2016, over one year later. As a result, her state law claim is barred by ORS 30.275. Page 7 - DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT HART WAGNER LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Telephone: (503) 222-4499 Facsimile: (503) 222-2301 Case 3:17-cv-00542-SI Document 5 Filed 06/05/17 Page 7 of 12 D. Plaintiffs Federal Title VII Claims are Barred by 42 U.S.C. § 2000e-5(f)(l). Plaintiffhad 90 days after receiving the EEOC right-to-sue letter to file any lawsuit based on the federal statutes. 42 U.S.C. § 2000e-5(f)(l). Plaintiff received the EEOC's right-to-sue letter sometime between June 27, 2016 (the date EEOC sent the letter) and September 22, 2016 (the date plaintiff filed her original Complaint). At the latest, this gave plaintiff until December 22, 2016 to file a lawsuit based on any federal claims. Plaintiff did not raise federal claims until she filed the Amended Complaint on March 15, 2017. A plaintiff is the master ofher case and must decide what law she will rely upon. Redwood Theaters, Inc. v. Festival Enters., Inc., 908 F.2d 477, 479 (9th Cir. 1990) {citing Fair v. Kohler Die &Specialty Co., 228 U.S. 22, 25, 33 S. Ct. 410 (1913)). If a plaintiff can bring claims on both state and federal grounds, she may ignore the federal claims and assert only state law claims if she chooses. Sullivan v. First AffiliatedSees., Inc., 813 F.2d 1368,1372 (9th Cir. 1987). This Court has held that a plaintiff cannot file a complaint alleging state court claims within the 90 days, and then try to "relate back" federal claims brought outside the 90 days. Clinkv. Oregon Health and Science University, 9 F.Supp.3d 1162, 1165 (D. Or. 2014). In Clink, this Court considered a nearly identical fact pattern. The plaintiff filed a complaint with BOLI after his employment was terminated. 9 F.Supp.3d at 1164. The complaint was forwarded to the EEOC. Id. BOLI issued its right-to-sue letter on December 26, 2012. Id. The plaintiff received a right-to-sue letter from the EEOC on January 24, 2013. Id. On March28,2013, the plaintifffiled suit in Multnomah CountyCircuitCourt, asserting only ORS Chapter659A claims. Id. The actionwas filed two days after the 90-dayperiod expired for his state law claims, but prior to the expiration of the 90-day period for his federal Page 8 - DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT HART WAGNER LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Telephone: (503) 222-4499 Facsimile: (503) 222-2301 Case 3:17-cv-00542-SI Document 5 Filed 06/05/17 Page 8 of 12 law claims. Id. On July 26, 2013, the plaintiff filed an amended complaint, asserting for the first time federal disability discrimination claims. Id. After the case was removed to federal court, OHSU moved for summary judgment, asserting, inter alia, that the federal law claims were barred as a result of the plaintiffs failure to assert his federal law claims within 90 days of receipt of the right-to-sue letter. Id. Rejecting the plaintiffs argument that the federal law claims related back to the untimely original complaint, this Court agreed that the plaintiffs claims were time-barred. Id. This Court began its analysis by citing Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 538,130 S.Ct. 2485 (2010), in which the Supreme Court held that "Rule 15(c) of the Federal Rules of Civil Procedure governs when an amended pleading 'relates back' to the date of a timelyfiled originalpleading and is thus itself timely even though it was filed outside an applicable statute of limitations." (Emphasis added.) While the Ninth Circuit had not considered whether an amended pleading relates back to an untimely original pleading, this Court found persuasive the Seventh Circuit's holding that Fed. R. of Civ. Proc. 15(c) did not permit relation back: In Henderson, the Seventh Circuit reasoned that an untimely Original complaint is "a nullity" that cannot "act as a life-line for a later complaint, filed after the ... statute of limitations for the claims which it contained." Thus, the plaintiff could not prevent a federal claim, which he raised for the first time in his amended complaint, from being barred under the applicable statute of limitations where his untimely original complaint alleged only state law claims. Id. at 1164-65 {citing Henderson v. Bolanda, 253 F.3d 928 (7th Cir. 2001)) (internal citations omitted). Thus, the plaintiff could not rely on "relation back" to resurrect his untimely complaint and avoid the statute of limitations on his federal disability discrimination claims. Id. at 1165. Plaintiff chose to originally file this action in state court and assert only state law claims. The facts in the case are identical to the facts in Clink: plaintiff is attempting to avoid the federal Page 9 - DEFENDANTS' MOTION FOR PARTIAL hart wagner llp SUMMARY JUDGMENT 100° s™-*™*?*Tw^h Floor Portland, Oregon 97205 Telephone: (503) 222-4499 Facsimile: (503) 222-2301 Case 3:17-cv-00542-SI Document 5 Filed 06/05/17 Page 9 of 12 filing requirements by arguing that the Amended Complaint should relate back to the original Complaint. Consistent with the holding of Clink, plaintiffs federal claims do not relate back to her untimely state lawsuit and must be dismissed. E. Plaintiff Cannot Allege Disability as the Basis for her 42 U.S.C. § 2000e-3(a) Claim. Plaintiffs second claim for relief alleges "[t]he defendants retaliated against Plaintiff for requesting accommodation of her disability and for complaining about Scott's sexual harassment." (Am. Compl; Doc. No. 1-14; 142.) 42 U.S.C. § 2000e-3(a) prohibits an employer from discriminating against an employee for opposing unlawful practices that are enumerated in subchapter 42 U.S.C. § 2000e. Subchapter 2000e prohibits discrimination on the basis of "race, color, sex, or national origin." 42 U.S.C. § 2000e-2(a). The statute does not apply to disability discrimination. To the extent that plaintiff bases her 42 U.S.C. § 2000e-3(a) claim on any alleged disability discrimination, the claim should be dismissed. F. Disability Discrimination Cannot Be the Basis of an Equal Protection Claim. Plaintiffs fourth claim for relief, an Equal Protection claim, incorporates all paragraphs in the Amended Complaint, including alleged discrimination because of a disability. (Am. Compl; Doc. No. 1-14; 151.) Plaintiff cannot bring an Equal Protection claim alleging prohibited actions based on disability. By drafting a comprehensive remedial scheme in the ADA, to address disparate treatment based on disability, Congress manifested an intent to preclude 42 U.S.C. § 1983 claims. Okwu v. McKim, 682 F.3d 841, 846 (9th Cir. 2012); citing Seminole Tribe ofFla. v. Florida, 517 U.S. 44, 76,116 S. Ct. 1114 (1996) (ADA precludes Equal Protection claim). To Page 10 - DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT HART WAGNER LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Telephone: (503) 222-4499 Facsimile: (503) 222-2301 Case 3:17-cv-00542-SI Document 5 Filed 06/05/17 Page 10 of 12 the extent that plaintiff bases her Equal Protection claim on either state or federal disability discrimination, those claims are precluded by the ADA. CONCLUSION For the above-stated reasons, defendants OHSU and David Scott are entitled to summary judgment in their favor on the ORS 659A.203 and 42 U.S.C. §2000e claims. In addition, defendants OHSU and David Scott are entitled to summary judgment on the Equal Protection claim to the extent it is based on disability discrimination. DATED this 5th day ofJune, 2017. HART WAGNER LLP By: /s/ Karen O'Kasey Karen O'Kasey, OSB No. 870696 kok@hartwagner.com Jonathan Rue, OSB No. 115106 igr@hartwagner.com Of Attorneys for Defendants Trial Attorney: Karen O'Kasey, OSB No. 870696 Page 11 - DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT HART WAGNER LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Telephone: (503) 222-4499 Facsimile: (503) 222-2301 Case 3:17-cv-00542-SI Document 5 Filed 06/05/17 Page 11 of 12 CERTIFICATE OF SERVICE I hereby certify that onthe 5th day ofJune, 2017,1 served the foregoing DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT on the following party at the following address: Micah D. Fargey Fargey Law PC 7455 SW Bridgeport Road, Suite 220 Portland, Oregon 97224 OfAttorneysfor Plaintiff by electronic means through the Court's Case Management/Electronic Case File system. /s/Karen O'Kasey Karen O'Kasey Page 1 - CERTIFICATE OF SERVICE HART WAGNER LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Telephone: (503) 222-4499 Facsimile: (503) 222-2301 Case 3:17-cv-00542-SI Document 5 Filed 06/05/17 Page 12 of 12