Opinion
Civil No. 03-137-CO.
February 23, 2004
SUPPLEMENTAL FINDINGS AND RECOMMENDATION
Plaintiff brings this action against defendants State of Oregon, Curry County, and Charles Steak alleging claims for wrongful termination, retaliation, gender discrimination, violation of equal protection rights, intentional infliction of emotional distress, and intentional interference with economic relationship. Plaintiff seeks injunctive relief, economic, non-economic, and punitive damages, interest, costs, and attorney's fees.
Defendant Curry County moved for summary judgment (#21). On January 13, 2004, Judge Hogan issued an order adopting in part the Findings and Recommendation on defendant Curry county's motion. Judge Hogan did not adopt the portion of the Findings and Recommendation recommending that the County's motion be granted as to plaintiff's Title VII claim. Judge Hogan remanded this matter for a determination of whether plaintiff was within the personal staff exemption of 42 U.S.C. § 2000e(f) in light of the evidence that plaintiff was a classified employee subject to the County's personnel rules, or whether disputed issues of fact preclude that determination.
I. FACTS
The court adopts the facts as set forth in the original Findings and Recommendation:
Plaintiff applied for the position of County Advocate with Curry County. (State's Exhibits 6 and 21). On June 19, 2000, the Board of the Curry County Commissioners ordered that defendant District Attorney Patrick Foley's recommendation to hire plaintiff as a Court Advocate become effective as of June 27, 2001. (Plaintiff's Exhibit 7).
The job description for Court Advocate is maintained by Curry County. (Plaintiff's Exhibit 6). Curry County maintained a list of Position Ranges, detailed salary steps for various positions within the County. The list included the position of Court Advocate. (Plaintiff's Exhibit 13).
When plaintiff was hired, she received a copy of the Curry County Personnel Rules. (Plaintiff's Exhibits 11 and 16). Plaintiff also completed a citizenship verification form provided by Curry County Payroll and Personnel Coordinator Julie Swift. (Plaintiff's Exhibit 18). Curry County maintained an employee information report detailing plaintiff's salary, benefits, and other information. (Plaintiff's Exhibit 22). Plaintiff was provided insurance coverage on the County's policy with Oregon Blue Cross, life insurance through the County, and was eligible for and participated in PERS through the County. (Plaintiff's Exhibits 12, 14, 15, 17, 19, 23, and 24). Plaintiff was a member of Curry County's employee's union and she filed a grievance action against defendant Steak. (Plaintiff's Exhibits 5 and 9).
Defendant Steak, as district attorney, was plaintiff's immediate supervisor. (County's Exhibit 101B). Plaintiff's duties as Court Advocate included working as a team with the prosecuting attorney in developing cases, and to perform assignments as directed by the district attorney. (County's Exhibit 101B). As plaintiff's supervisor, defendant Steak evaluated her job performance through a written review, and he issued her a reprimand (County's Exhibits 101C and 101D).
The Curry County District Attorney's Office was awarded funds by the Governor for the position of Court Advocate. (Plaintiff's Exhibits 3 and 4). The Court Advocate position was a federally funded program within the District Attorney's Office. The Stop Violence Against Women Act (VAWA) Formula Grant provided the District Attorney's Office with $43,778.00 for its Curry County Domestic Violence/Sexual Assault Prosecution Team and plaintiff was the Project Director and Program Contact. The grant period was from July 1, 2001 through June 30, 2002. The District Attorney signed the grant and certified that the grant funds would be used specifically for the allotted program. (County's Exhibit 101A). The Board of Curry County Commissioners granted signature authority to the district attorney for acceptance of VAWA grant award and for a grant application for rural domestic violence. (State's Exhibits 13 and 14).
The County did not receive a federal grant for the Court Advocate position for the period beginning July 1, 2002, and the district attorney was notified of the denial of funds on June 12, 2003. (County's Exhibit 101E). Plaintiff was notified by the district attorney that the funds were not awarded, and on June 18, 2002, she received a layoff notice from the district attorney's office. (County's Exhibit 101F). The letter from defendant Steak informing her of the layoff also directed her to make an appointment with Julie Swift to get information regarding her insurance options, final pay, and other information. (Plaintiff's Exhibit 8).
Following her layoff, plaintiff filed a claim for unemployment benefits with the State Employment Division. The County, through Julie Swift, responded to plaintiff's unemployment claim. The State awarded benefits to plaintiff and debited those benefits to the County. (Plaintiff's Exhibits 25, 26, and 27).
Defendant Curry County submits the following additional facts in support of its motion:
Curry County has not adopted a civil service system. (Herbage Affidavit at 2). The population of Curry County is less than 500,000, and the electors of the County have not approved a civil service system. (Id.). Curry County's personnel rules explicitly state that the rules do not create an employment contract, and that they can be changed any time by the Curry County Board of Commissioners. (Id.). The Curry County personnel rules cannot be enforced against elected officials. (Herbage Affidavit Exhibit B). The Board of Commissioners do not control the method or manner in which elected officials operate their office, not does the County have any recourse against an elected official who refuses to abide by the personnel rules. (Herbage Affidavit at 2-3). Plaintiff served at the pleasure of the District Attorney. (herbage Affidavit at 2-3).
II. LEGAL STANDARDS
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a moving party is entitled to summary judgment as a matter of law "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.), cert. denied, 502 U.S. 994 (1991). In deciding a motion for summary judgment, the court must determine, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citations omitted). The parties bear the burden of identifying the evidence that will facilitate the court's assessment. Id.The moving party bears the initial burden of proof. See Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d 1421, 1435 (9th Cir.), cert. denied, 516 U.S. 987 (1995). The moving party meets this burden by identifying portions of the record on file which demonstrates the absence of any genuine issue of material fact. Id. "[T]he moving party . . . need not produce evidence, but simply can argue that there is an absence of evidence by which the nonmovant can prove his case." Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390, 393 (4th Cir. 1994), cert. denied, 513 U.S. 1191 (1995) (citation omitted); See City of Mt. Pleasant, Iowa v. Associated Electric Co-op, Inc., 838 F.2d 268, 273-274 (8th Cir. 1988) (it is sufficient for the movant to argue that the record does not contain an issue of fact and to identify that part of the record that supports that assertion).
In assessing whether a party has met their burden, the court must view the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles, 66 F.3d 1052 (9th Cir. 1995). All reasonable inferences are drawn in favor of the nonmovant. Id.
If the moving party meets their burden, the burden shifts to the opposing party to present specific facts which show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Auvil v. CBS "60 Minutes", 67 F.3d 816 (9th Cir. 1995), cert. denied, 517 U.S. 1167 (1996). The nonmoving party cannot carry their burden by relying solely on the facts alleged in their pleadings. Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1994). Instead, their response, by affidavits or as otherwise provided in Rule 56, must designate specific facts showing there is a genuine issue for trial. Id.
III. DISCUSSION
In its supplemental memorandum, Defendant Curry County moves for summary judgment arguing that:1) Curry County was not plaintiff's employer; and
2)plaintiff was not part of a civil service system as the term is used under Title VII. In her supplemental memorandum, plaintiff argues that a reasonable jury could find that plaintiff was not a member of defendant Steak's personal staff, but rather an employee of Curry County. In their supplemental memorandum, defendants State of Oregon and Steak argue that defendant Curry County must show that plaintiff meets the requirements for the personal staff exemption.
Title VII Claims
Title VII of the Civil Rights Act makes it illegal for an employer to discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment. 42 U.S.C. § 2000e(a)(1), 2000e-2(a), 2000e-5. Title VII defines an employer as a "person in industry affecting commerce who has fifteen or more employees . . ." 42 U.S.C. § 2000e(b). A person includes political subdivisions. 42 U.S.C. § 2000e(a). Federal law controls whether a person is an employer for purposes of Title VII, but federal courts may look to state law to understand the nature of the employment relationship. Oden v. Oktibbeha County, Mississippi, 246 F.3d 458, 465 (5th Cir.), cert. denied, 534 U.S. 948, and cert. denied, 534 U.S. 949 (2001) (citation omitted).
42 U.S.C. § 2000e(f) provides in part that:
The term employee means an individual employed by an employer, except that the term employee shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office. . . .42 U.S.C. § 2000e(f). This exemption does not apply to employees subject to civil service laws. 42 U.S.C. § 200e(f).
The Fair Labor Standards Act's definition of employee is the same as that in Title VII, and the court's may look to cases interpreting both Acts when applying the personal staff exemption. See Nichols v. Hurley, 921 F.2d 1101, 1103 (10th Cir. 1990); Brewster v. Barnes, 788 F.2d 985, 990 n. 7 (4th Cir. 1986). 29 C.F.R. § 553.11 provides in part that the term "civil service laws" refers to personnel systems established by law which are designed to protect employees from arbitrary action, personal favoritism, and political coercion, and which use a competitive or merit examination process for selection and placement. Continued tenure of employment of employees under civil service, except for cause, is provided. 29 C.F.R. § 553.11.
Under Oregon law, a civil service system is mandatory for counties with a population of 500,000 or more, but smaller counties must elect into the statutory civil service system. ORS 241.020; ORS 241.006. Under Oregon law, employees of an elected official who serve at the pleasure of that elected official are at-will employees, and personnel policies which contain a disclaimer that the policies do not constitute a contract do not change the at-will status of an employee. Lawson v. Umatilla County, 139 F.3d 690, 692-693 (9th Cir. 1998).
In this case, the undisputed facts show that Curry County did not elect into the statutory civil service system. The undisputed facts show that plaintiff was an at-will employee who served at the pleasure of the District Attorney. Therefore, plaintiff was not an employee subject to civil service laws under 42 U.S.C. § 2000e(f).
In determining whether a person falls under the personal staff exemption, the court considers six factors: 1) whether the elected official has plenary powers of appointment and removal; 2) whether the person in the position at issue is personally accountable to only that elected official; 3) whether the person in the position at issue represents the elected official in the eyes of the public; 4) whether the elected official exercises a considerable amount of control over the position; 5) the level of the position within the organizations chain of command; and 6) the actual intimacy of the working relationship between the elected official and the person filling the position.Dubisar-Dewberry v. District Attorney's Office of the Twelfth Judicial Circuit of the State of Ala., 927 F. Supp. 1479, 1483 (M.D. Ala. 1996) (citation omitted). The personal staff exception is narrowly construed. Id.
Under Oregon law, the district attorney is elected by the voters of each county. ORS 8.610. Defendant Steak recommended plaintiff for the position of court advocate. The Board of County Commissioners issued an order regarding the hiring only on the recommendation of the district attorney. (Herbage Affidavit at 3; LaBonte Affidavit at 2; Schafer Affidavit at 2). Court advocates perform to the personal satisfaction of the district attorney. The district attorney makes performance evaluations and issues reprimands.
Court advocates represent the district attorney in the eyes of the public. They work with the district attorneys, other agencies and victims.
Court advocates are supervised by the district attorney. The district attorney control case assignments and supervise their work. The Board of Commissioners do not issue performance evaluations, reviews or reprimands to Court Advocates. (Herbage Affidavit at 2-3; LaBonte Affidavit at 2-3; Schafer Affidavit at 2-3). The Board does not control how the district attorney's office is operated, and does not approve or disapprove requests for vacation or sick leave of court advocates. (Id.).
It is not clear whether the position of court advocate is a high level position in the district attorneys office. However, they do work with the district attorney and deputy district attorneys and are subordinates of the district attorney.
The relationship between court advocates and the district attorney and the deputy district attorneys is an intimate working relationship. The district attorney assigns cases and supervises their work. They work together on court cases.
Based on the foregoing, the court finds that plaintiff meets the personal staff exemption of Title VII. See Dubisar-Dewberry v. District Attorney's Office of the Twelfth Judicial Circuit of the State of Ala., 927 F. Supp. 1479 (M.D. Ala. 1996); See also Ramirez v. San Mateo County District Attorney's Office, 639 F.2d 509 (9th Cir. 1981; See also Teneyuca v. Bexar County, 767 F.2d 148 (5th Cir. 1985); See also Wall v. Coleman, 393 F. Supp. 826 (S.D. Ga. 1975). Therefore, defendant Curry County is entitled to summary judgment on plaintiff's Title VII claims.
IV. RECOMMENDATION
Based on the foregoing, it is again recommended that defendant Curry County's motion for summary judgment (#21) be granted.
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 ten 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 have ten days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered 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 the Magistrate Judge's recommendation.