Opinion
Case No. CV 03-6202-AA.
February 19, 2004
Donna G. Goldian, Connolly Goldian, LLP, Salem, Oregon, Attorney for plaintiff.
Jeffrey D. Austin, Tamara E. Russell, Miller Nash LLP, Portland, Oregon, Attorneys for defendant.
OPINION AND ORDER
Plaintiff Melinda Carlton filed this action against Marion County and Board of County Commissioner Michael Ryan seeking relief for violations of her federal constitutional rights pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 2000 et seq. Plaintiff also alleges state claims of retaliation for whistle-blowing in violation of Or. Rev. Stat. § 659A.203, gender discrimination in violation of Or. Rev. Stat. § 659A.030, and wrongful discharge. Pursuant to Fed.R.Civ.P. 12(b) (6), defendants move for dismissal of plaintiff's § 1983 claim, her wrongful discharge "public policy claim," as well as her claim for punitive damages. Defendants also move to dismiss plaintiff's whistleblower and gender discrimination claims as asserted against defendant Ryan. In response, plaintiff voluntarily withdraws her § 1983 claim as well as all claims for punitive damages against Marion County. Thus, the court considers defendants' motion to dismiss plaintiff's claim for wrongful discharge and all claims asserted against Ryan in his individual capacity.
I. FACTUAL BACKGROUND
Plaintiff alleges the following facts in her complaint:
In October 2000, plaintiff was hired as the County Administrator by the Board of County Commissioners (BOCC) of Marion County. Her responsibilities included the development and application of generally accepted accounting principles to the Marion County budget and appropriations process. Within a few months of beginning work, plaintiff encountered practices and procedures within county management that she believed contravened sound fiscal and public management principles.
In December 2000, plaintiff learned that an audit of the Data Center Board, chaired by defendant Commissioner Michael Ryan, showed an "ending fund balance" of about $660,000, and that the board had voted to expend approximately $160,000 of that balance without first notifying the BOCC of the surplus funds. Plaintiff immediately voiced her concerns to the BOCC, and, in response, the BOCC asked Marion County counsel to draft a policy requiring both notification of surplus funds remaining at the end of the audited fiscal year and preclusion of using such funds without a full BOCC vote. Marion County counsel did not present its draft policy regarding the expenditure of ending fund balances until sometime after July 2001, a delay plaintiff attributes to the influence of Ryan. Plaintiff maintains that, sometime prior to May 2001, the Data Center Board spent the entire $660,000 ending fund balance without first informing and obtaining the approval of the BOCC.
At an administrator's meeting in May 2001, plaintiff again expressed her concerns to Ryan regarding the funds expenditure, but Ryan refused to discuss the subject. Plaintiff felt Ryan was directing her not to discuss the funds expenditure with others including the BOCC, the Budget Committee, or county staff.
Plaintiff also alleges that between approximately October 2000 and May 2001, Ryan lobbied the BOCC and staff to sell the Franklin Building in order to fund the Juvenile Expansion Facility Project. Plaintiff encouraged the BOCC to complete a facilities study to assess the county's space needs prior to making any decisions. When Commissioners Ryan and Randall Franke objected to conducting a facilities study, plaintiff urged the BOCC to hire an independent professional firm to analyze the sale. Ryan and Franke again disagreed with plaintiff about the need to hire an outside firm, and the BOCC proceeded unassisted with the sale.
When the Budget Committee held hearings in the spring of 2001, plaintiff opined that it was fiscally irresponsible to count the proceeds from the future sale of the building as available funds and to use one-time revenues for recurring operations. The Budget Committee passed an action that provided that the funds from the sale of the Franklin Building would not be budgeted until such funds were received. Notwithstanding the Budget Committee action, Ryan maintained that the "expected" funds from the sale of the Franklin Building sale should be included in the budget to be approved by the BOCC on June 26, 2001.
On or about May 8, 2001, after a day-long budget meeting in which plaintiff openly opposed several positions taken by Ryan, Ryan entered plaintiff's office and angrily confronted her. When plaintiff attempted to leave her office, Ryan grabbed plaintiff's arm and plaintiff had to forcefully wrest herself from Ryan's grip. On or about the next day, plaintiff reported the incident to Marion County Counsel, the Director of Human Resources, and the Director of Administrative Services.
Later in May 2001, Ryan called plaintiff into his office and told her, among other things, that Ryan would be a commissioner long after plaintiff was gone. Plaintiff understood Ryan's statement as a threat that her employment would be terminated if she continued to oppose the sale of the Franklin Building and if she exposed the expenditure of funds by the Data Center Board and the May 8th incident in plaintiff's office.
In June 2001, plaintiff again recommended to the BOCC that $925,000 in net proceeds from the sale of the Franklin Building should not be included in the fiscal year-end budget, because such funds would not be received until after June 30, 2001. On June 26, 2001, however, the BOCC approved a budget in which approximately $600,000 of the Franklin Building funds was allocated to "pet" projects of Ryan, including $300,000 for recurring operations of the Sheriff's department and about $300,000 for the Capital Improvement Program for Information Technology. Plaintiff was subsequently informed that Ryan had discussed terminating plaintiff's employment with Marion County counsel, who advised Ryan that only the BOCC, rather than an individual board member, could terminate plaintiff's employment.
In the months leading up to plaintiff's June 2001 job-performance evaluation, plaintiff worked with the BOCC to produce an official evaluation form and a procedure for its use. The BOCC formally approved the form and procedure in or about April 2001. In May 2001, Commissioners Ryan and Franke changed the established procedures by which plaintiff was to be evaluated and solicited performance ratings from department heads under plaintiff's supervision. Plaintiff alleges that the performance evaluations carried out by Commissioners Ryan and Franke did not accord with the procedure previously agreed upon by plaintiff and Marion County.
Plaintiff further believes that Ryan solicited untrue and unsubstantiated comments from the department heads to justify his decision and also to persuade Commissioner Franke to terminate plaintiff at the conclusion of her formal evaluation. Taking into account the department heads' reports, the BOCC conducted a formal evaluation of plaintiff's job performance during several hearings held between June 10, 2001, and July 10, 2001. Plaintiff asserts that this evaluation process constituted a breach of her contract. Commissioners Ryan and Franke also refused to consider any information provided by plaintiff and Commissioner Patti Milne to refute the allegations of poor performance made by the department heads. On July 10, 2001, Commissioners Ryan and Franke voted to terminate plaintiff's employment, effective August 10, 2001, citing plaintiff's lack of communication with the BOCC. Plaintiff believes this reason to be pretextual and that the real reason for her termination was to silence her and to retaliate against her for speaking out against fiscal mismanagement, waste of funds, and abuse of authority.
On or about July 18, 2001, and November 7, 2001, plaintiff provided notices of tort claims to defendant Marion County pursuant to Or. Rev. Stat. §§ 30.260 — 30.300. On or about May 9, 2002, plaintiff filed a Complaint with the Oregon Bureau of Labor and Industries (BOLI) and with the Equal Employment Opportunities Commission. On or about May 9, 2002, plaintiff received a "right to sue" letter from BOLI.
On July 30, 2003, plaintiff filed suit alleging three causes of action. Plaintiff's first claim for relief asserts violations of her federal constitutional rights to free speech and due process pursuant to 42 U.S.C. § 1983. Because plaintiff represents that she now withdraws her § 1983 claim, the court does not discuss defendants' motion with respect to this claim. Plaintiff's second claim for relief is comprised of two counts. First, plaintiff alleges a violation of her rights as a public employee to be free from retaliation for whistleblowing. See Or. Rev. Stat. § 659A.203. Second, plaintiff asserts a violation of public policy against wrongful discharge. Plaintiff's third claim for relief is also comprised of two counts. First, she asserts a claim of gender discrimination pursuant to 42 U.S.C. § 2000e. Second, plaintiff asserts a violation of state law against gender discrimination. See Or. Rev. Stat. § 659A.030. Plaintiff seeks equitable relief including compensatory and emotional distress damages against all defendants as well as punitive damages against Ryan.
II. STANDARD
Pursuant to Fed.R.Civ.P. 12(b)(6), dismissal for failure to state a claim is proper only when it appears to be a certainty that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In this context, a complaint will be liberally construed in favor of the plaintiff and the allegations contained within the complaint are taken as true.Lee v. County of Los Angeles, 240 F.3d 754, 764 (9th Cir. 2001).
III. DISCUSSION
A. The Wrongful Discharge Claim
Plaintiff asserts a claim for wrongful discharge based on defendants' termination of her employment allegedly in violation of Oregon public policy. Defendants argue that plaintiff cannot assert such a claim, however, because plaintiff has adequate statutory remedies for the alleged harm. Further, defendants maintain that plaintiff's withdrawal of her § 1983 claim does not render that remedy unavailable.
"[A] claim for common law wrongful discharge is not available in Oregon if (1) an existing remedy adequately protects the public interest in question, or (2) the legislature has intentionally abrogated the common law remedies by establishing an exclusive remedy (regardless of whether the courts perceive that remedy to be adequate)." Minter v. Multnomah County, 2002 U.S. Dist. LEXIS 20378 (citing and quoting Draper v. Astoria Sch. Dist. 1C, 995 F. Supp. 1122, 1130-31 (D. Or. 1998)). As explained in Draper, the wrongful discharge tort "never was intended to be a tort of general application but rather an interstitial tort to provide a remedy when the conduct in question was unacceptable and no other remedy was available."Draper, 995 F. Supp. at 1122. In this case, plaintiff's § 1983 claim would have provided plaintiff with an adequate remedy.
Plaintiff nonetheless asserts that her voluntary withdrawal of her § 1983 claim effectively renders that remedy unavailable. As defendants contend, however, the issue is not whether an adequate remedy "remain[s]," as plaintiff alleges, but whether an adequate remedy existed in the first place. Because the § 1983 claim and the wrongful discharge claim seek to remedy the same alleged conduct, namely the termination of plaintiff's employment because of her protected speech, I agree that plaintiff is precluded from asserting her common-law wrongful discharge claim. "The point is that federal law would provide her a remedy, had she complied with its procedural requirements. It would be anomalous to allow the preemption of actions based upon [federal law] for the [time period] after the action accrued, but prevent such preemption after that time." Stallcop v. Kaiser Foundation Hospitals, 820 F.2d 1044 (9th Cir. 1987).
Accordingly, defendants' motion to dismiss is granted as to plaintiff's claim for wrongful discharge.
B. Defendant Ryan's Individual Liability
1. Employer Liability Under Title VII and § 659A.030
Plaintiff asserts claims for gender discrimination under both Title VII of the Civil Rights Act of 1974, 42 U.S.C. § 2000e et seq., and Or. Rev. Stat. chapter 659. Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" based on sex. 42 U.S.C. § 2000e-2(a)(1). Likewise, § 659A.030 tracks the language of Title VII and prohibits "an employer, because of an individual's . . . sex . . . [from discriminating] against such individual in compensation, or in terms, conditions or privileges of employment." Or. Rev. Stat. 659A.030(1)(a). Without distinguishing between Commissioner Ryan and Marion County, plaintiff simply alleges that, "At all times material hereto, Defendant was an employer, and Plaintiff its employee." Complaint ¶¶ 60, 75.
Defendants argue that Commissioner Ryan cannot be held liable under Title VII as an employer and thus plaintiff may not allege a Title VII claim against him. See Holly D. v. California Institute of Tech., 339 F.3d 1158, 1179 (9th Cir. 2003) ("We have consistently held that Title VII does not provide a cause of action for damages against supervisors or fellow employees."). This court agrees. Plaintiff alleges no facts to support a claim that Ryan acted as her employer and therefore no individual liability attaches under Title VII.
With respect to § 659A.030, plaintiff alleges that Ryan is individually liable for "aiding and abetting" the County's allegedly unlawful discrimination and retaliation. Plaintiff relies upon statutory language that makes it an unlawful employment practice "[f]or any person, whether an employer or employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter." Or. Rev. Stat. § 659A.030(1)(g). Defendants argue however that no individual liability attaches under the statute. See Logan v. West Coast Benson Hotels, 981 F. Supp. 1301, 1318 (D. Or. 1997); see also, Schram v. Albertson's, Inc., 146 Or. App. 415, 424, 934 P.2d 483 (1997) (noting that, although plaintiff had established the individually named defendants had "aided and abetted" in the alleged discrimination, summary judgment in favor of those defendants was appropriate because there was no adequate remedy under the statute).
While the plain text of § 659A.030(1)(g) clearly encompasses both employers and employees who would "aid and abet" unlawful discrimination, plaintiff has no remedy in this case against Ryan. Under § 659A.885(2), injunctive and equitable relief are the only remedies available to plaintiff under chapter 659 — relief that plaintiff neither seeks nor could she logically seek against Ryan. Therefore, plaintiff's claim for gender discrimination in violation of § 659A.030 against Ryan is dismissed.
2. The Oregon Tort Claims Act and Section 659A.203
Defendants argue, under application of the Oregon Tort Claims Act (OTCA), Marion County is the only proper defendant with respect to plaintiff's claim for whistleblower retaliation. Under the OTCA, the public body shall be substituted as the only defendant when a tort claim is brought against public officials for actions taken within the scope of their employment. Or. Rev. Stat. § 30.265(1); see also, Draper, 995 F. Supp. at 1141 (OTCA applies to whistleblower claims brought under Or. Rev. Stat. § 659A.203). An act is considered within the scope of employment if: (1) the act occurred substantially within the time and space limits authorized by the employment; (2) the employee was motivated, at least in part, by a purpose to serve the employer; and (3) the act was of a kind for which the employee was hired to perform. Chesterman v. Barmon, 305 Or. 439, 442, 753 P.2d 404 (1988).
However, "an intentional tort may also be a private act outside the scope of employment if the employee is motivated by other than an intention to serve the employer." Dryden v. SAIF Corp., 103 Or. App. 76, 81, 796 P.2d 397, 400 (1990); see also, Durham v. City of Portland, 181 Or. App. 409, 418, 45 P.3d 998 (2002) ("[A] plaintiff may still bring a tort claim against a public employee in his or her individual capacity, but only for acts taken outside the scope of employment."). Thus, whether a party has acted within the scope of employment is generally a question of fact. See, Stanfield v. Laccoarce, 284 Or. 651, 655, 588 P.2d 1271 (1978).
Here, plaintiff argues that defendant Ryan intentionally discriminated against her and orchestrated a campaign to discredit and retaliate against her. Taking these facts as true and construing all inferences in favor of plaintiff, I find that plaintiff's allegations suffice to state a claim that Ryan acted outside the scope of his employment. Thus, defendants' motion to dismiss is denied as to plaintiff's whistleblower claim in violation of § 659A.203.
C. Punitive Damages
Plaintiff explains that she does not seek punitive damages against Marion County. See Response to Defendants' Motion to Dismiss, p. 1. With respect to defendant Ryan, punitive damages are not available to plaintiff under her whistleblower claim.Draper, 995 F. Supp. at 1140. With no claims remaining against Ryan that would allow for punitive damages, plaintiff's claim for punitive damages is dismissed.
CONCLUSION
Defendants' motion to dismiss is GRANTED in part and DENIED in part. Plaintiff's claims for violations of 42 U.S.C. § 1983, wrongful discharge, and punitive damages are DISMISSED. Plaintiff's claims for gender discrimination in violation of Title VII and Or. Rev. Stat. § 659A.030 are DISMISSED with respect to defendant Ryan. Defendants' motion is denied in all other respects.
IT IS SO ORDERED.