Opinion
3:20-cv-00372-JR
04-18-2022
BRUCE COMMITTE, Plaintiff, v. AACSB INTERNATIONAL, OREGON STATE UNIVERSITY, et al. Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge.
Defendant Oregon State University (“OSU”) moves for summary judgment on pro se plaintiff Bruce Committe's claims pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, OSU's motion should be granted, and this action should be dismissed.
Although plaintiff is not currently a licensed attorney, he was a practicing member of the Florida State Bar for 22 years until being disbarred in 2016 for filing frivolous lawsuits. Committe v. Gentry, 2020 WL 3443022, *1 n.1 (W.D. La. May 8), adopted by 2020 WL 3442303 (W.D. La. June 23, 2020).
BACKGROUND
In March 2020, plaintiff filed a complaint in this Court premised on his unsuccessful application for a faculty accounting position with OSU, which was slated to start in August 2019. Plaintiff alleged: (1) age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”) and Or. Rev. Stat. § 659A.030; (2) denial of academic freedom and conspiracy to deny academic freedom in violation of 42 U.S.C. § 1983; and (3) denial of equal protection in violation of 42 U.S.C. § 1983.
Plaintiff “has an extensive history of filing meritless suits against universities for alleged employment discrimination or civil rights violations, ” both within and outside this District. Gentry, 2020 WL 3443022 at *3 n.2 (collecting cases); see also Committe v. Miller Nash Graham & Dunn, LLP, 2020 WL 410189, *1 (D. Or. Jan. 23), recons. denied, 2020 WL 1821455 (D. Or. Apr. 10, 2020), aff'd, 2021 WL 6066999 (9th Cir. Dec. 20, 2021) (summarizing plaintiff's four prior lawsuits involving OSU, all of which were dismissed, and denoting that they concerned virtually identical claims-i.e., “for age discrimination, retaliation, denial of academic freedom, and violations of his free speech and equal protection rights against OSU and several employees when he applied for, but did not receive, an advertised accounting faculty position”).
In July and August 2020, OSU and the Association to Advance Collegiate Schools of Business International (“AACSB”) moved to dismiss plaintiff's complaint under Fed.R.Civ.P. 12(b)(6) and sought a pre-filing order premised on plaintiff's history of filing vexatious lawsuits both within and outside this District. In August 2020, plaintiff filed an additional lawsuit against OSU and OSU's current attorneys, alleging that the motions filed in this case were acts of retaliation under the First Amendment and ADEA. In September 2020, plaintiff filed a third lawsuit against OSU, alleging age discrimination in violation of the ADEA and 42 U.S.C. § 1983 based on plaintiff's email communications with opposing counsel related to his lawsuits.
AACSB was initially named as a defendant in this case but, as addressed below, the claims against them have been dismissed.
On November 3, 2020, this Court granted OSU and AASCB's' motions and entered a prefiling order prohibiting plaintiff from filing any § 1983 or age discrimination claims against OSU, AACSB, or their current counsel without first obtaining leave from the Court. In granting the motion to dismiss, the Court reasoned plaintiff's: (1) federal claims against OSU were barred by sovereign immunity and/or preempted; (2) state law claim against OSU failed to allege notice under the Oregon Tort Claims Act; and (3) federal claim against AACSB failed to allege AASCB was a state actor subject to § 1983, and that an agreement existed between AACSB and OSU to deprive plaintiff of his constitutional right to academic freedom. The Court found that dismissal with prejudice was not appropriate and allowed plaintiff leave to seek amendment of the complaint by December 3, 2020.
On December 7, 2020, plaintiff moved for an extension of time to file an amended complaint, which the Court granted. Plaintiff filed his Amended Complaint on December 14, 2020, in which he reasserted each of his initial claims and raised three additional retaliation claims under the ADEA and Or. Rev. Stat. § 659A.030 against OSU and its past and present counsel. Plaintiff's new claims were premised on three of his other lawsuits-i.e., Committe v. Miller Nash Graham & Dunn, LLP, Case No. 3:18-cv-01013-AA; Committe v. Reeves, Case No. 3:20-cv-01455-JR; and Committe v. Reeves, Case No. 3:20-cv-01686-JR-all of which have been dismissed with prejudice.
In December 2020 and January 2021, OSU and AACSB again moved to dismiss. Plaintiff did not file a timely response to either motion and, on February 3, 2021, the Court entered a Minute Order indicating it would not accept any future motions or briefs that are untimely in light of plaintiff's repeated failures to comply with the Court's deadlines and orders. Plaintiff subsequently filed a Motion for Reconsideration and the Court reevaluated its February 3, 2021, decision but found that no modifications were warranted.
On March 5, 2021, the Court recommended that AASCB's and OSU's motions to dismiss be granted. On April 9, 2021, District Judge Mosman adopted the March 5, 2021, Findings and Recommendations and dismissed AASCB and OSU's attorneys as defendants from this lawsuit with prejudice, leaving only plaintiff's state law employment discrimination claims against OSU.
On May 10, 2021, plaintiff moved to file yet another amended complaint, reasserting his state law claims, as well as an additional ADEA claim. On May 27, 2021, the Court granted plaintiff's motion in part as follows:
As this Court has previously explained in regard to plaintiffs prior complaints and age discrimination lawsuits against OSU, public universities are arms of state for the purposes of the ADEA and are therefore subject to sovereign immunity. Although plaintiff makes various arguments against the application of sovereign immunity under the supremacy clause, equal protection clause, etc., the Court declines to depart from well-established precent. Thus, for the reasons stated in the Court's prior decisions, plaintiffs motion is denied in regard to his ADEA claim against OSU. Plaintiffs remaining claims appear viable and defendant did not file a timely response to plaintiff's motion. Accordingly, the Court Grants plaintiffs motion in part as to his second and third claims.Order (May 27, 2021) (doc. 70).
On July 19, 2021, plaintiff filed an Emergency Motion seeking an order requiring OSU to pay him $25,000 within five days. On August 9, 2021, plaintiff moved to strike OSU's Answer.
The Court denied plaintiff's first motion because it sought “a money judgment on a dismissed claim, has no basis in law, and fails to comply with the Federal Rules of Civil Procedure or the local rules of this Court.” Order (Aug. 10, 2021) (doc. 80). The Court denied plaintiff's subsequent motion “because the pretrial order, when filed after discovery is complete, will resolve the issues raised by the plaintiff and control over the claims and defenses.” Order (Sept. 8, 2021) (doc. 86).
On January 11, 2022, OSU filed the present Motion for Summary Judgment. That same day, the Court provided plaintiff with a “Summary Judgment Advice Notice, ” explaining this lawsuit's procedural posture and what was expected from plaintiff to survive summary judgment, including the requirement that he respond and produce evidence. Summ. J. Advice Notice 1 (doc. 95). Plaintiff's opposition was due by February 10, 2022, but he has yet to file a response with the Court.
STANDARDS
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac.Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
OSU asserts summary judgment is warranted because there is no direct evidence of discrimination and plaintiff cannot state a prima facie case. Def.'s Mot. Summ. J. 9-13 (doc. 91). Alternatively, OSU argues that, assuming a prima facie case exists, summary judgment is appropriate because legitimate, non-discriminatory reasons existed for the decision not to interview plaintiff and there is no evidence of pretext. Id. at 12-13. Moreover, OSU contends that plaintiff's failure to make a prima facie showing of discrimination is fatal to his second claim of aiding and abetting discrimination. Id. at 13-18.
I. Age discrimination under Or. Rev. Stat. § 659A.030(a)
To prevail on a disparate treatment claim pursuant to Or. Rev. Stat. § 659A.030(a), the plaintiff must prove age was the “but for” cause of the adverse employment action. Robillard v.Opal Labs, Inc., 428 F.Supp.3d 412, 435 (D. Or. 2019). Where, as here, there is no direct evidence of discrimination, the plaintiff must present circumstantial evidence sufficient to satisfy the burden-shifting framework set forth in McDonaldDouglas Corp. v. Green, 411 U.S. 792 (1973). Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 812 (9th Cir. 2004). Pursuant to the McDonald Douglas burden shifting framework, the plaintiff must first establish a prima facie case. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889-90 (9th Cir. 1994). If the plaintiff proves a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. Id. If the defendant articulates such a rationale, the plaintiff bears the ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory or retaliatory motive. Id.
Age discrimination claims in this context require the plaintiff to show: (1) he was at least forty years old at the time of the defendant's allegedly discriminatory conduct; (2) he applied and was rejected for a position; (3) he was qualified for the position; and (4) “either substantially younger applicants with equal or inferior qualifications were selected or the plaintiff was rejected under circumstances otherwise ‘giving rise to an inference of age discrimination.'” Bellinger v.Coos Bay Sch. Dist., 2014 WL 5791575, *3 (D. Or. Nov. 5, 2015), aff'd, 711 Fed.Appx. 398 (9th Cir. 2017) (quoting Diaz v. Eagle Produce, Ltd., 521 F.3d 1201, 1207 (9th Cir. 2008)).
Here, plaintiff has not responded to or otherwise opposed OSU's motion for summary judgment and has thus failed to make a prima facie showing of age discrimination. However, even construing plaintiff's previous filings broadly, he still cannot show that age discrimination was the “but for” cause for OSU's decision not to interview him. As it stands, OSU has conceded the first and second elements of this claim, noting that plaintiff was over forty years old at the time of his application and was rejected for the faculty position. Def.'s Mot. Summ. J. 11 (doc. 91).
Yet plaintiff cannot show the third element. There is no dispute that one of the listed “minimum/required qualifications” for experienced candidates is “a record of high quality publications and/or in-process research consistent with their level of experience.” Van Meter Decl. Ex. B, at 1 (doc. 93). It is equally beyond dispute that plaintiff is not a recent Ph.D. graduate, having graduated over 30 years prior, and was thus required to meet this standard. Van Meter Decl. Exs. B-F (doc. 93). As this Court previously denoted:
During the 2014 AACSB accreditation process, it was determined that OSU's College of Business faculty were publishing in lower-ranking academic journals. Van Meter Decl. Ex. A, at 1-2 (doc. 93). To ensure continued accreditation at the next AACSB review period in 2019, OSU needed to focus on faculty publications in premier journals. Id. Thus, the position plaintiff applied for emphasized publication in premier journals for non-recent graduates. Arthurs Decl. ¶ 2 (doc. 92).
with the exception of plaintiff's brief tenure as an assistant accounting professor in 2019 (which is the subject of a separate lawsuit [and occurred after he applied for the position at issue in this action]), he has not worked in the fields of accounting or academics for nearly 30 years. Furthermore, the only recent publications listed
on plaintiff's resume are opinion pieces from the International Journal of Critical Accounting, which “was rated ‘C' in journal quality.Committee v. AACSB Int'l, 2020 WL 6471723, *3, n.3 (D. Or. Sept. 8), adopted by, 2020 WL 6471689 (D. Or Nov. 3, 2020) (quoting Committee v. Or. State Univ., 2015 WL 2170122, *4 (D. Or. May 8, 2015), aff'd, 683 Fed.Appx. 607 (9th Cir. 2017)).
In addition, plaintiff cannot demonstrate the fourth element of his claim. As part of the prior proceedings in this case, plaintiff introduced the purported resume of Terrence Blackburne, Ph.D., the candidate ultimately hired for the position. Van Meter Decl. Ex. C (doc. 93). Assuming that this resume was, in fact, properly attributable to the successful candidate, the Court observed that Dr. Blackburne had “substantially more relevant and recent teaching and accounting experience.” Id.
Because plaintiff has not proven his prima facie case, the subsequent steps of the McDonald Douglas burden-shifting framework are not implicated. The Court nonetheless denotes that, even if plaintiff had met his initial burden, OSU proffered a legitimate, non-discriminatory reason for the adverse employment action and there is no evidence of pretext. As noted above, OSU asserts that plaintiff was not interviewed because he did not have a record of high-quality publications. Def.'s Mot. Summ. J. 11 (doc. 91). Consistent with AACSB's accreditation standards, OSU rejected eighty-seven of the ninety-one applicants, including plaintiff, because they did not meet the position's minimum/required qualifications or did not timely apply. Van Meter Decl. Ex. C (doc. 93). Further, plaintiff's cover letter indicated that, although he had published roughly one piece per year in the International Journal of Critical Accounting, his work involves using “accounting to promote humanity in the world” and “has practically no relevance to accounting research taking place in accounting academe today.” Van Meter Decl. Ex. E, at 1 (doc. 93). Thus, plaintiff's claim fails under the McDonald Douglas framework and OSU's motion should be granted as to plaintiff's age discrimination claim.
II. Aiding and Abetting Discrimination Claim under Or. Rev. Stat. § 659A.030(1)(g)
Under Oregon law, it is unlawful “[f]or any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.” Or. Rev. Stat. § 659A.030(1)(g). Plaintiff's failure to make a prima facie showing of age discrimination is fatal to his claim of aiding and abetting. SeeDinicola v. Serv.Emp. Int'l Union, 2011 WL 3477074, *7 (D. Or. Aug. 5, 2011) (the plaintiff must establish a violation of the underlying Chapter 659A laws to bring an aiding and abetting claim). OSU's motion should be granted as to plaintiff's aiding and abetting claim as well.
RECOMMENDATION
For the foregoing reasons, OSU's Motion for Summary Judgment (doc. 91) should be granted and judgment should be prepared dismissing this case. Defendant's request for oral argument is denied an unnecessary.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.