Opinion
Case No. 3:18-cv-1084-AC
06-04-2019
BILL BARRIER, an individual, Plaintiff, v. CITY OF THE DALLES, a municipality, DAVID ANDERSON, an individual, JULIE KRUEGER, an individual, and DANIEL HUNTER, an individual Defendants.
FINDINGS AND RECOMMENDATION :
Findings and Recommendation
Plaintiff Bill Barrier ("Barrier") brings this lawsuit against the City of Dalles ("the City"), David Anderson ("Anderson"), Julie Krueger ("Krueger"), and Daniel Hunter ("Hunter") (collectively, "Defendants"). Barrier alleges seven claims against Defendants: injured worker discrimination and retaliation under Oregon Revised Statute ("ORS") § 659A.040; disability discrimination under ORS 659A.112 and the Americans with Disabilities Act ("ADA") 42 U.S.C. § 12112 (2008); and whistleblower discrimination under ORS 659A.199, 659A.203, 654.062. Barrier asserts an additional claim against Anderson, Kruegcr, and Hunter individually under 42 U.S.C § 1983 for alleged violations of his procedural due process rights secured by the Fifth and Fourteenth Amendments to the Constitution.
Defendants move to dismiss all claims asserted by Barrier for failure to state a claim under Federal Rule of Civil Procedure ("Rule") 12(b)(6). For the reasons stated below, the court should GRANT Defendants' Motion to Dismiss ("Motion") with respect to Barrier's first, second, third, fourth, fifth, and seventh claims for relief. Barrier's fourth and seventh claims should be dismissed with prejudice, and Barrier's first, second, third and fifth claims should be dismissed without prejudice, and with leave to amend. The court should DENY Defendants' Motion with respect to Barrier's sixth claim.
Background
The City employed Barrier as a manager in its Public Works department for 24 years. (First Am. Compl., ECF No. 3 ("FAC"), ¶ 13.) In November 2013 Barrier slipped on a rug, fell and hit his head on the concrete floor. (FAC ¶ 16.) The accident caused Barrier's left thumb to bend back to his arm and the lumbar disks in his back to compress. (FAC ¶ 16.)
In April 2014, the Safe Accident Insurance Fund Company ("SAIF") gave a presentation at Barrier's workplace. (FAC ¶ 17.) One of the presenters was Barrier's SAIF claim representative. (FAC ¶17.) In the presentation, SAIF addressed the number of city-wide accidents occurring in the workplace. (FAC ¶ 17.) SAIF used the example of someone falling and hurting them self during the presentation. (FAC ¶ 17.) The example, as well as the presence of his SAIF claim representative, caused Barrier to feel "targeted and uneasy about the presentation since [they] appeared to be referencing his accident." (FAC ¶ 17.) Later that year, Barrier had lower lumbar surgery and had a spinal stimulator installed to address injuries from his 2013 fall. (FAC ¶ 18-19.)
On June 9, 2014, Barrier attended a city council meeting in which the City's mayor publicly commented on the number of injuries occurring in the Public Works Department. (FAC ¶ 22.) Barrier felt these comments were referencing his injuries. (FAC ¶ 22.)
In 2015, Barrier damaged his upper back while pulling on an asphalt distributer valve handle. (FAC ¶ 23.) In September of the same year, an editorial appeared in the Dalles Chronical quoting an email from the City's mayor in which the mayor stated he was going to "[g]et rid of [the] city manager and hire a replacement who can go through departments [to] get rid of dead wood." (FAC ¶ 24.) The email also noted that two department heads were on his "hit list." (FAC ¶ 24.) Barrier felt he was one of the department heads referenced by the mayor. (FAC ¶ 25.)
On another occasion in 2015, Anderson, the Director of Public Works, embarrassed Barrier as they walked through the Public Works yard by openly joking to employees, "[b]etter watch out or [Barrier] will hit you with his [walking] stick." (FAC ¶ 26.)
On February 9, 2017, while sanding ice for a school bus route, Barrier slipped and fell on a patch of ice. (FAC ¶ 29.) The same day, Anderson called Barrier into his office to instruct him to stop talking about bald tires on the radio, and to inform Barrier that one of his crewmen had parked in a spot longer than permitted. (FAC ¶ 30.) No other topics were discussed during the meeting. (FAC ¶ 30.)
The next day, Barrier submitted a city accident form because his shoulder was still sore from his fall the day before. (FAC ¶ 31.) On February 13, 2017, Barrier's shoulder continued to pop and lock in and out of position, prompting Barrier to see a doctor. (FAC ¶ 32.) "Barrier filled out a workers compensation claim (form 801) with the City's insurer and went to Cascade Orthopedics." (FAC ¶ 32.)
On February 14, 2017 Barrier was overseeing work of some mechanics in the shop when he slipped on a rug. (FAC ¶ 33.) Because Barrier almost fell, he thought the placement of the rug on a "slick concrete floor" was dangerous. (FAC ¶ 33.) Accordingly, Barrier reported the incident by turning in a "near miss slip" to the safety committee. (FAC ¶ 33.)
On March 31, 2017, Anderson sent Barrier a letter containing "allegations of safety concerns and complaints received during the winter operations." (FAC ¶ 34.) The allegations were raised for the first time in the letter and were not mentioned during Barrier's previous meeting with Anderson on February 9, 2017. (FAC ¶ 34.) On April 27, 2017, Barrier met with Anderson and Hunter, the Director of Human Resources for the City, regarding the allegations and complaints detailed in the letter. (FAC ¶ 35.)
On May 22, 2017, Anderson gave Barrier a final termination letter. (FAC ¶ 36.) The termination letter contained allegations of misconduct dating back prior to 2014, which Barrier claims are false. (FAC ¶ 36.) Specifically, "[t]he termination letter raised numerous issues that were not contained in prior correspondence or referenced in prior meetings." (FAC ¶ 36.)
On June 21, 2018, Barrier filed this lawsuit alleging the City unlawfully terminated his employment in violation of the ADA, his due process rights under the Fifth and Fourteenth Amendments, and various Oregon statutes. Defendants moved to dismiss Barrier's Complaint for failure to state a claim under Rule 12(b)(6) on August 9, 2018.
Legal Standard
A well-pleaded complaint must have a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. 8(a)(2). A motion pursuant to Rule 12(b)(6) should be granted if the allegations in the complaint are insufficient to state a claim for relief. FED. R. CIV. P. 12(b)(6). The Supreme Court explained the necessity of including sufficient facts in the pleading to give proper notice of the claim and its basis: "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation omitted). With this in mind, the Court noted "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Later, in Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009), the Court illuminated two principles underlying its decision in Twombly. First, the proposition that a court must accept all allegations in a complaint does not force a court to accept as true all legal conclusions set forth in a pleading. Id. at 678. Second, the complaint must contain a plausible, not merely possible, claim for relief. Id. at 679. The court clarified that "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. Further, the court concluded, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to entitlement to relief." Id.
On a motion to dismiss for failure to state a claim, the court must take as true all allegations of material fact and construe them in the light more favorable to the non-moving party. Am. Family Ass'n., Inc. v. City & Cty. of S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). The court's review is limited to the face of the complaint, any documents referenced in the complaint, and those matters which the court may properly take judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). Otherwise, as a general rule, a district court may not consider any material outside the pleadings when ruling on a 12(b)(6) motion to dismiss. Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001).
Discussion
I. First Claim for Relief - Injured Worker Discrimination and Retaliation
Barrier's first claim for relief alleges he was terminated in retaliation for filing a workers' compensation claim after he fell on an icy road while sanding ice on a school bus route. Barrier claims his termination approximately three months after filling out a workers' compensation form constitutes an adverse employment action in violation of ORS 659A.040.
ORS 659A.040 provides, in relevant part:
It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS chapter 656 or has given testimony under the provisions of those laws.OR. REV. STAT. § 659A.040(1). To prove a prima facie case under ORS 659A.040, a plaintiff must establish three elements: (1) that the plaintiff invoked the workers' compensation system, (2) that the plaintiff was discriminated or retaliated against in the tenure or conditions of employment; and (3) that the employer discriminated or retaliated against the plaintiff in the tenure or terms of employment because he or she invoked the workers compensation system. Davis v. Tri-Cty. Metro. Transp. Dist. of Or., 45 F. Supp. 3d 1222, 1238 (2014) (citing Williams v. Freightliner, LLC, 196 Or. App. 83, 90, 100 P.3d 1117, 1121 (2004)).
Defendants assert Barrier has failed to state a claim under ORS 659A.040. Specifically, Defendants argued Barrier cannot demonstrate he "invoked" the workers' compensation system simply by filling out a SAIF 801 form. Apart from Barrier's allegation that he filled out a form, the City contends there are no "facts that could plausibly establish that Plaintiff's employment was terminated for invoking the workers' compensation system." (Def's. Mot. Dismiss, ECF No. 13 ("Def's. Mot."), at 7.)
However, during oral arguments, Defendants conceded that submitting a city accident report is sufficient to "invoke" the workers' compensation system.
A. Invocation of the Workers' Compensation System
To "invoke" the workers' compensation system, an employee "is not required to make a formal claim by giving written notice of an injury or disease." Herbert v. Altimeter, Inc., 230 Or. App. 715, 726, 218 P.3d 542, 548 (2009). Rather, invocation "is sufficient if a worker reports an on-the-job injury, or an employer perceives that a worker has been injured and will report an injury." Krouse v. Ply. Gem. Pac. Windows Corp., 803 F. Supp. 2d 1220, 1226 (D. Or. 2011). For example, in McPhail v. Milwaukie Lumber Co., 165 Or. App. 596, 604-05, 999 P.2d 1144, 1150 (2000), the court found the plaintiff had adequately "invoked" the workers' compensation system when he "verbally notif[ied] Milwaukie Lumber of his stomach condition and of its possible relationship to the stress that he experienced at work," because it gave his employer "knowledge of an existing claim."
Here, Barrier reported his injury by filling out an accident report the day after he fell on the ice and hurt his shoulder. (FAC ¶ 31.) Three days later, when his shoulder continued to pop out of place, Barrier formally commenced the workers' compensation process by filling out a SAIF 801 form, effectively filing a workers' compensation claim. (FAC ¶ 32.) Though Defendants argue Barrier has "failed to plead any facts alleging that he actually submitted the 801 form or took other action to invoke the workers' compensation system" (Def's Mot., at 6), the Complaint specifies that Barrier "filled out a workers compensation claim (801 form) with the City's insurer." (FAC ¶ 32.) Under Oregon law, invocation is sufficient if a worker reports an on the job injury. Because invocation is sufficient if a worker reports an on the job injury, Barrier's submission of a city accident form adequately invoked the workers' compensation system.
B. Discrimination or Retaliation in Tenure, Terms, or Conditions of Employment
To show retaliation "with respect to hire or tenure or any term or condition of employment," a "plaintiff must show that a reasonable employee would have found the challenged action — employment action with respect to hire or tenure . . . of employment — materially adverse, which in this context means it well might have dissuaded a reasonable worker from applying for benefits or invoking" the workers' compensation system. Alvarez v. Ecolab Inc., No. 6:13-cv-01718-MC, 2014 WL 6684910, at *5 (D. Or. Nov. 25, 2015).
Barrier's employment was indisputably terminated, constituting an adverse employment action because such conduct affects "hiring, tenure, or other terms and conditions of employment." Davis v. Tri-Cty. Metro. Transp. Dist., 45 F. Supp. 3d 1222, 1240 (2014); see also Werner v. Sturgeon Electric Co., Inc., No. 3:16-cv-01334-MO, 2017 WL 3473179, at *3 (D. Or. Aug. 11, 2017) (finding that the plaintiff's "employment was terminated, which constitutes a discrimination in the tenure, terms, or conditions of his employment for the purposes of the second element of this claim").
C. Causation
To satisfy the third element of an injured worker discrimination claim, a plaintiff must demonstrate the defendant "discriminated against him with respect to tenure or any term or condition of employment because he invoked the workers' compensation system." Alvarez, 2014 WL 6684910, at *6. In other words, an employee must show that his "invocation of the workers' compensation system was a substantial factor" in the employer's decision to terminate his employment. Herbert v. Altimeter, Inc., 230 Or. App. 715, 726, 218 P.3d 542, 548 (2009). "Causation sufficient to establish the third element of the prima facie case may be inferred from circumstantial evidence, such as the employer's knowledge that the plaintiff engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision." Dickison v. Wal-Mart Stores, Inc., No. 06-108-AA, 2007 WL 1959287, at *3 (D. Or. July 2, 2007) (quoting Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). The temporal proximity between protected activity and an adverse employment action may by itself support a finding of causation, but only when closely related in time. See Passantino v. Johnson & Johnson Consumer Prod's., Inc., 212 F.3d 493, 507 (9th Cir. 2000) (noting that "when adverse employment decisions are taken within a reasonable period of time after complaints of discrimination have been made, retaliatory intent may be inferred").
Barrier contends that the temporal proximity between filing a workers' compensation claim and his termination may support an inference of retaliatory motive, as he was terminated three months after filing a workers' compensation claim. Further, Barrier argues his termination letter stated he was being terminated for misconduct which Barrier contends occurred and went unaddressed prior to his filing of a workers' compensation claim. However, Barrier failed to establish a causal link showing that the person authorized to make the decision to terminate him knew he filed a workers' compensation claim. See Dameworth v. Linn-Benton Cmty. Coll., No. 07-6162, 2007 WL 2816216, at *6 (D. Or. Sept. 27, 2007) (noting that "[e]ssential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity") (quoting Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). Viewing the facts in the light most favorable to Barrier, the court finds he has failed to state a prima facie claim for injured worker discrimination under ORS 659A.040. However, Barrier should be allowed to amend the Complaint to remedy the causality deficiencies and assert a claim under ORS 659A.040.
II. Second and Third Claims For Relief - Disability Discrimination
Barrier's second and third claims for relief allege Defendants unlawfully discriminated against him on the basis of his disability in violation of the ADA and ORS 659A.112. Defendants argue Barrier's federal and state disability claims fail to state a claim upon which relief can be granted because both claims are merely conclusory and do not provide sufficient facts to establish that Barrier has a disability or that Defendants were aware of his disability when they decided to terminate his employment.
Disability claims brought under ORS 659A.112 should "be construed to the extent possible in a manner that is consistent with any similar provisions of the federal" ADA. OR. REV. STAT. § 659A.139(1). Accordingly, the court applies the same analysis to Barrier's claims brought under both Oregon law and the ADA. See Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001) (stating that the "standard for establishing a prima facie case of discrimination under Oregon law is identical to that used in federal law); Shepard v. City of Portland, 829 F. Supp. 2d 940, 963 (D. Or. 2011).
The ADA provides, in relevant part, that "[n]o covered entity shall discriminate against a qualified individual with a disability because of a disability." 42 U.S.C. § 12112(a). A "covered entity" is an "employer, employment agency, labor organization, or joint labor-management committee." 42 U.S.C. § 1211(2). To prevail on an ADA claim for unlawful termination, a plaintiff must allege sufficient facts to establish: "(1) he is a disabled person within the meaning of the statute; (2) he is a qualified individual with a disability; and (3) he suffered an adverse employment action because of his disability." Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999).
A. Disability Under the ADA
The ADA defines "disability" as a "physical or mental impairment that substantially limits one or more major life activities . . . a record of such an impairment . . . or being regarded as having such an impairment." 42 U.S.C. §§ 12102(1)(A)-(C). Major life activities include "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending . . . and working." 42 U.S.C. § 12102(2)(A). The definition of "disability" under the ADA should be "construed in favor of broad coverage of individuals." 42 U.S.C. § 12102(4)(A).
In Wessels v. Moore Excavation, Inc., No. 3:14-cv-01329-HZ, 2014 WL 6750350, at *1. (D. Or. Dec. 1, 2014), the plaintiff alleged he suffered "from a serious medical condition which substantially limit[ed] him in one or more major life activities including, but not limited to, walking and standing." The court distinguished the case from Garcia v. Durham & Bates Agencies, Inc., No. 3:14-cv-00220-SI, 2014 WL 3746521, at *3 (D. Or. July 29, 2014), where the plaintiff's ADA claim was dismissed because it stated merely that she was disabled and failed to provide any information about the nature of her impairment. In Wessels, the court deemed the plaintiff's more detailed allegations were sufficient to meet the first element of an ADA claim. 2014 WL 6750350, at *4.
Defendants cite Jackson v. Napolitano, No. CV-09-1822-PHX-LOA, 2010 WL 94110, at *5 (D. Ariz. Jan. 5, 2010), a case similar to Garcia in which the plaintiff's claim was dismissed because it stated simply that the plaintiff had a disability, and did not "identify the nature of his physical or mental impairment and how that impairment substantially limit[ed] one or more of his major life activities." Defendants argue Barrier, like the plaintiff in Jackson, fails to allege facts suggesting Defendants knew he was disabled, or perceived him as impaired. However, Barrier's Complaint does not merely state that he is disabled. Rather, Barrier's Complaint alleges that his impairments arise from "back, shoulder, neck, and foot injuries," that substantially limit his ability to: "perform[] manual tasks, stand[], walk[], lift[], and bend[]." (FAC ¶ 53.) Barrier therefore identifies his physical impairments and sufficiently alleges they impact one or more of his major life activities. Thus, Barrier has sufficiently alleged he is disabled within the meaning of the ADA.
B. Qualified Individual With a Disability
Barrier must next establish that he is a "qualified individual" with a disability under the ADA. A "qualified individual," is an individual who: (1) satisfies the requisite skill, experience, education and other job-related requirements of the position; and (2) can perform the essential functions of the employment position with or without an accommodation. 42 U.S.C. § 12111(8). The "essential functions" of a job are "the fundamental job duties of the employment position." 29 C.F.R. § 1630.2(n). However, a plaintiff is not required to plead the "essential functions" of his job to withstand a motion to dismiss. See Wessels, 2014 WL 6750350, at *4 (noting that the "[r]elevant cases suggest that dismissal is appropriate when the plaintiff alleges only that he or she is a 'qualified individual'" without alleging that the plaintiff could perform the essential functions of the job with or without an accommodation); see also Blackburn v. Tr's. of Guilford Technical Cmty. Coll., 822 F. Supp. 2d 539, 551 (M.D.N.C. 2011) (rejecting the employer's argument that the plaintiff must plead the "essential functions" of her job to survive a motion to dismiss).
Defendants argue Barrier's Complaint does not allege sufficient facts to establish that he is a qualified individual with a disability. Specifically, Defendants argue Barrier "omits any facts regarding the essential functions of his job and any facts regarding his ability to perform those essential functions of his job, with or without reasonable accommodation." (Reply Supp. Def.'s Mot. Dismiss Pl's. Compl., ECF No. 16, at 7.) However, Defendants cite no authority to suggest that pleading the essential functions of the job is required. Barrier's statement that he could perform the essential functions of the job with or without an accommodation is sufficient. Like the plaintiff in Wessels, Barrier "specifically alleges the ability to perform the essential functions of his job either with or without accommodation . . . satisf[ying] his burden of stating this part of the claim beyond a mere conclusory recitation of the elements." 2014 WL 6750350 at *4. Therefore, Barrier has sufficiently alleged that he was a "qualified individual" for the purpose of stating a disability discrimination claim.
C. Reasonable Accommodation Denied Because of Disability
Finally, Barrier must prove that Defendants failed to provide a reasonable accommodation because of his disability. Under the ADA, discrimination against a qualified individual includes failing to provide "reasonable accommodations to [an individual's] known physical or mental limitations." 42 U.S.C. § 12112(b)(5)(A). A reasonable accommodation may include "job restructuring, part-time or modified work schedules, reassignment to a vacant position . . . and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9). An employer's knowledge that an employee needs an accommodation triggers the employer's duty to discuss the appropriate accommodations with the employee. Wessels v. Moore Excavation, Inc., No. 3:14-cv-01329-HZ, 2016 WL 1589894, at *15 (D. Or. Apr. 18, 2016); see also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2001) (stating that once an employee requests an accommodation, "or an employer recognizes the employee needs an accommodation but the employee cannot request it because of a disability, the employer must engage in an interactive process with the employee to determine the appropriate reasonable accommodation.").
Generally, an employer must be aware of the need for an accommodation to trigger the duty to engage in the interactive process. See Wessels, 2016 WL 1589894, at *16 (noting that the duty is triggered when the employee informs their employer of the need for an accommodation; "the 'general rule' is that the employee generates a request in some form"). An employee need not make a formal request in writing or "use any magic words" in order to inform the employer that a reasonable accommodation is necessary. Roloff v. SAP Am., Inc., 432 F. Supp. 2d 1111, 1119 (D. Or. 2006). Under certain circumstances, the burden is not on the employee to request an accommodation. The employer's duty to inquire about a possible accommodation is triggered when the employer: "(1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation." Id. at 1118-19 (quoting Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000), vacated on other grounds, 535 U.S. 391 (2002)).
Defendants argue Barrier's disability claims should be dismissed because Barrier's Complaint presents mere conclusory statements rather than factual allegations to support his claims that the City denied him a reasonable accommodation or failed to engage in the interactive process because of his disability. (Def's. Mot. at 8-9.) Barrier attempts to plead that Defendants should have been on notice of his need for an accommodation, stating he "has a history or record of [an] impairment and was regarded by defendant as having such impairment." (FAC ¶ 53.)
The court agrees with Defendants. Barrier has failed to allege that he requested a reasonable accommodation of any kind. Barrier alleges no facts showing the City knew or should have known of his disability. The mere fact that Barrier suffered from multiple work accidents and walked with a cane is not sufficient to support a disability-based claim alleging failure to accommodate and discrimination under the ADA. Even construing Barrier's complaint liberally, he has failed to allege sufficient facts to allow the court to reasonably infer that he was denied a reasonable accommodation, or even that he was terminated because if his disability. offered insufficient to support an ADA claim, especially given he was otherwise able to perform the job despite the limp). Even construing Barrier's complaint liberally, he has failed to allege sufficient facts to allow the court to reasonably infer that he was denied a reasonable accommodation, or even that he was terminated because if his disability. Barrier's conclusory statements to the contrary are not enough to state a claim upon which relief can be granted. Therefore, the court should dismiss without prejudice Barrier's second and third claims for relief.
III. Fourth, Fifth, and Sixth Claims for Relief - Whistleblower Claims
Defendants' move to dismiss Barrier's whistleblower claims under ORS §§ 659A.199, 659A.203, and 654.062, for failing to state claims that are facially plausible. Defendants argues that Barrier's Complaint with regard to these claims is conclusory, without factual allegations identifying the specific state or federal law, rule, or regulation that Barrier believes the City violated. A close reading of the Complaint suggests Barrier's whistleblowing allegations stem from an incident in which Barrier was instructed not to talk about bald tires on the radio, though this fact is not elaborated on or connected to any particular claim in his Complaint. For the purposes of this motion, the court will analyze Barrier's three whistleblowing claims in the context of that incident.
A. ORS 659A.199
Courts in this district have consistently concluded ORS 659A.199 was enacted to provide whistleblower protections for private sector employees, not public sector employees. See Bieker v. City of Portland, No. 3:16-cv-00215-BR, 2016 WL 3769753, at *4 (D. Or. July 14, 2014) (finding that ORS 659A.199 "does not apply to Defendants as public employers"); see also Minger v. Hood Cmty. Coll. Dist., No. 3:14-cv-01460-SI, 2016 WL 475382, at *7 (D. Or. Feb 4, 2016) (stating "the legislature specifically intended different threshold requirements to apply to whistleblower claims in the public and private sectors"). A "public employer" is "the state or any agency of or political subdivision in the state" or "any person authorized to act on behalf of the state, or any agency of or political subdivision in the state, with respect to control, management or supervision of any employee." OR. REV. STAT. § 659A.200(6).
Barrier worked in the Public Works Department for the City, an entity qualifying as a public employer under ORS 659A.200(6). Though Defendants did not raise this argument in their Motion, the court finds the City's status as a public employer bars Barrier's claim under ORS 659A.199. Thus, Defendants' Motion as to Barrier's fourth claim for relief should be GRANTED.
B. ORS 659A.203
Oregon law prohibits a public employer from taking or threatening to take adverse employment action against an employee who engages in whistleblowing activities. Whistleblowing activities include the disclosure of:
(A) A violation of any federal, state or local law, rule or regulation by the public or nonprofit employer;OR. REV. STAT. § 659A.203(1)(b). A public employer may not "[d]iscourage, restrain, dissuade, coerce, prevent or otherwise interfere with disclosure or discussions." OR. REV. STAT. § 659A.203(d).
(B) Mismanagement, gross waste of funds or abuse of authority or substantial and specific danger to public health and safety resulting from action of the public or nonprofit employer; or
(C) Subject to ORS 659A.212(2), the fact that a person receiving services, benefits or assistance from the state or agency or subdivision, is subject to a felony or misdemeanor warrant for arrest issued by this state, any other state, the federal government, or any territory, commonwealth or governmental instrumentality of the United States.
A plaintiff establishes a prima facie case under ORS 659A.203 by showing he "(1) engaged in a protected activity, (2) suffered an adverse employment decision, and (3) [establishing] there was a causal link between the protected activity and the adverse employment decision." Lindsey v. Clatskanie People's Utility D., 140 F. Supp. 3d 1077, 1091 (D. Or. 2015) (citing Neighorn v. Quest Health Care, 870 F. Supp. 2d 1069, 1102 (D. Or. 2012).
The only facts alleged in Barrier's Complaint that might support a whistleblowing claim under ORS 659A.203 are stated in its general factual allegations section. Barrier states that on February 9, 2017, the City instructed him "to stop talking about bald tires on the radio." (FAC ¶ 30.)
1. Protected Activity
ORS 659A.203 protects a public employee against adverse action "for the disclosure of any information that the employee reasonably believes is evidence of a violation of law by an agency." Hall v. State, 274 Or. App. 445, 453, 366 P.3d 345, 350 (2015). In other words, protected activity for purposes of ORS 659A.203 is a report or "disclosure" of wrongdoing, including "reports of wrongdoing within an agency or department." Bjurstrom v. Oregon Lottery, 202 Or. App. 162, 171, 120 P.3d 1235, 1240 (2005). To qualify as a "disclosure," the "plaintiff must reasonably believe that [he] is disclosing a violation of a federal or state law, rule or regulation." Huff v. City of Portland, No. 05-1831-AA, 2008 WL 1902760, at *5 (D. Or. April 28, 2008). The information being disclosed must not be publicly available. Clarke v. Multnomah Cty., 303 Fed. App'x 512, 513 (9th Cir. 2008).
The statute is silent, however, on whether the disclosure must be made to a specific person. Thus, courts in this district have relied on the similarly-worded federal Whistleblower Act of 1989 ("WPA"), 5 U.S.C. § 2302, to interpret "disclosure." See Shultz v Multnomah Cty., No. 08-CV-886-BR, 2009 WL 1476689, at *13 (D. Or. May 27, 2009) (applying the standards governing disclosures under WPA because "[n]o other Oregon cases have further elaborated on the meaning of 'disclosure' under § 659A.203"). The court in Shultz, determined "a disclosure is protected only if it is 'made to a person who was previously unaware of the information, meaning someone in a supervisory position, other than the wrongdoer himself." Id. at *13. Finally, the Oregon Court of Appeals has clarified that "disclosures" under ORS 659A.203 "must rise in magnitude to a level of public concern in order for complaints about it to be protected." Bjurstrom, 202 Or. App. at 172.
Barrier alleges Anderson instructed him "to stop talking about bald tires on the radio." (FAC ¶ 30.) The court therefore must consider whether Barrier's statement on the radio that City vehicles had bald tires constitutes a "disclosure." Barrier's Complaint lacks context from which the court can determine whether the statement about bald tires rises to the level of a disclosure protected by ORS 659A.203. Though Barrier states that, "[d]riving cars that are not roadworthy violates, among other things, state law," in his Response to Defendants' Motion to Dismiss (Pl. Resp. Def.'s Mot. Dismiss, ECF No. 15, at 14), this clarification does not cure the deficiency in his Complaint. While allowing vehicles with bald tires to operate may constitute a violation, Barrier fails to allege sufficient facts describing the circumstances of his statement. Specifically, Barrier does not allege that he made the statement to a supervisor who was previously unaware of the information. Therefore, the allegation that he discussed bald tires on the radio fails to allege a disclosure protected by ORS 659A.203.
Because Barrier's statement regarding bald tires does not constitute protected activity, Barrier cannot establish a prima facie case under ORS 659A.203. Accordingly, Defendants' Motion should be GRANTED with respect to Barrier's fifth claim for relief, but with leave to amend.
C. ORS 654.062
ORS 654.062 prohibits retaliation against an employee who has opposed a practice or made a complaint related to the Oregon Safe Employment Act ("the Act"). OR. REV. STAT. § 654.062(5). The purpose of the Act "is to ensure as far as possible safe and healthful working conditions for every working person in Oregon." OR. REV. STAT. § 654.003. Thus, to establish a claim under ORS 654.062, a plaintiff must demonstrate "he suffered discrimination at his employment because he made a complaint 'related to' safe and healthful working conditions." Butler v. State, Dept. of Corr., 138 Or. App. 190, 201, 909 P.2d 163, 170 (1995). For such claims, "the complaint need not actually constitute a statutory violation to be an actionable complaint." Krouse v. Ply. Gem. Pac. Windows Corp., 803 F. Supp. 2d 1220, 1227 (D. Or. 2011); see also Butler, 138 Or. App. at 201 (holding that "[t]he trial court erred in requiring [the] plaintiff to prove an actual violation of a law, regulation or standard"). Rather, the plaintiff need only show he had a "good faith belief" that a violation occurred. Ramirez v. Lincare, Inc., No. 3:14-cv-00836-ST, 2015 WL 4111868, at*7 (D. Or. July 7, 2015).
Barrier alleges he was terminated after speaking about health and safety violations, namely City vehicles having bald tires. (FAC ¶ 68.) Although Barrier is not required to prove that an actual violation of any law, regulation or standard occurred, he must still connect his complaint about City vehicles to his termination. Barrier provides sufficient evidence to infer causation. On February 9, 2017, Anderson called Barrier into a meeting specifically to instruct him to "not talk[] about bald tires on the radio." (FAC ¶ 30.) A month later, Anderson again met with Barrier to discuss "alleged safety concerns and complaints received during the winter operation." (FAC ¶ 35.) On May 22, 2017, Anderson's handed Barrier a termination letter. (FAC ¶ 36.) The temporal proximity between Barrier's statement concerning bald tires and his termination, combined with Anderson knowledge of the statement and subsequent decision to terminate Barrier, support an inference of causation. Therefore, the court finds Barrier's Complaint, albeit sparse on this point, contains sufficient allegations to bring a claim under ORS 654.062, and Defendants' Motion as to Barrier's sixth claim for relief should be DENIED.
IV. Seventh Claim for Relief - Procedural Due Process Under Section 1983
Barrier's seventh claim for relief alleges he was denied procedural due process in violation of the Fifth and Fourteenth Amendments, when the City terminated him without providing prior notice, an opportunity to refute the charges, or a pre-termination hearing. Defendants contend Barrier's claim should be dismissed because Barrier has failed to establish he had a property interest in continued employment with the City. Barrier argues that he is not required to establish a property interest in his Complaint and that Defendants' cite "no case law to support this alleged pleading requirement." (Pl. Resp. at 15.)
The Due Process Clause of the Fourteenth Amendment "imposes constraints on government decisions which deprive individuals of liberty or property rights which are protected by the Constitution." Fritz v. Norblad, 566 F. Supp 1459, 1462 (D. Or. 1983). A Section 1983 claim based on procedural due process has three elements: "(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of process." Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). To withstand a motion to dismiss a plaintiff must specifically plead a protected property interest in continued employment. Orozco v. Cty. of Monterey, 941 F. Supp. 930, 934 (N.D. Cal. 1996) (emphasis added).
An employee may have a constitutionally protected property interest in the expectation of continued employment. Fritz, 566 F. Supp. at 1462. However, the employee must have "more than an abstract need or desire for it." Bd. of Regents of State Coll's v. Roth, 408 U.S. 564, 577 (1972). Rather, the employee must "have a legitimate claim of entitlement" in the job. Id. Entitlement in employment is not created by the Constitution, but "by existing rules or understandings that stem from an independent source such as state law." Id. In Oregon, "public employee's rights arise solely from statutes and regulations," and cannot arise "from an implied or express contract of employment absent some underlying statute or regulation." Albertson v. Stewart, No. CIV 04-3097-CO, 2007 WL 128946, at *6 (D. Or. Jan. 16, 2007). Further, a public employee whose position is "at will" does not have a constitutionally protected property interest. See Portman, 995 F.2d at 904.
Though Barrier contends he had a property interest in continued employment with the City, he fails to adequately plead a claim of entitlement derived from state law. In fact, Barrier makes no reference to an independent source of law that might entitle him to continued employment with the City anywhere in his Complaint. Additionally, Barrier does not address whether or not his position was "at will." Barrier thus fails to allege sufficient facts to support a reasonable inference that he was entitled to continue working as a Public Works Manager with the City. Defendants Motion as to Barrier's seventh claim for relief therefore should be GRANTED.
Conclusion
For the reasons stated above, the court should GRANT Defendants' Motion to Dismiss (ECF No. 13) with respect to Barrier's first, second, third, fourth, fifth, and seventh claims for relief. Barrier's fourth and seventh claims should be dismissed with prejudice, and Barrier's first, second, third and fifth claims should be dismissed without prejudice, and with leave to amend. The court should DENY Defendants' Motion with respect to Barrier's sixth claim.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 4th day of June, 2019.
/s/_________
JOHN V. ACOSTA
United States Magistrate Judge