Opinion
Civil No. 03-6013-TC.
June 25, 2004
FINDINGS AND RECOMMENDATION
Presently before the court is defendants' motion (#36) for summary judgment.
BACKGROUND
Where the parties have put forth conflicting views of the facts, I describe the facts in the light most favorable to the plaintiff.
During her first three years with ESD (1998-2001), plaintiff worked with Steve Barron, another ESD teacher. Barron provided mostly vocational education at OYA. At some point, plaintiff became upset or concerned with what she considered Barron's adverse impact on the program, and in December 2000 began to complain to Stratton and McClellan about it.
In 2001, the ESD hired Jim Ramirez as a part-time teacher at OYA. Shortly thereafter, Barron switched to part-time for a short period of time, and then retired. When Barron moved to part-time, the ESD brought Ramirez on board at OYA full-time, and he remained at OYA upon Barron's retirement. Plaintiff continued to complain to Stratton about concerns with the OYA program after Ramirez was hired, including complaining that: (1) Individualized Education Programs were not being followed; (2) credit was given to students' work inappropriately; and (3) students were accessing inappropriate internet websites on the program's computers. Late in the year, plaintiff complained that she was being retaliated against for her adherence to the educational program rules and requirements.
In May of 2002, plaintiff met with Perry and Stratton on several occasions, culminating in Perry sending a letter to plaintiff in which he suggested a transfer or a plan of assistance as possible options. After receiving that letter, plaintiff retained counsel and submitted a tort claim notice to the defendants. Her last day at OYA for the 2001-2002 school year was June 30, 2002; however, Perry, plaintiff, and plaintiff's union representative continued to communicate during the summer months. Perry suggested that a plan of assistance might be appropriate; the union representative asserted that a plan of assistance was unnecessary.
Plaintiff returned to OYA in August 2002, but she was given a different teaching assignment (teaching the computer class) and was advised to stay away from the other teachers.
The next month, plaintiff was asked to put on a skit for an ESD teacher in-service day. She performed a parody of "American Idol," in which she played a contestant singing "La Bamba." Plaintiff was told that Ramirez complained to ESD about the skit, calling it derogatory to his Hispanic heritage. The complaint was discussed at a meeting in September, 2002. Plaintiff informed ESD that she was amazed that ESD would respond so quickly to Ramirez' complaint but had failed to investigate or respond to her earlier complaints. ESD responded that she should document her complaints, which she did at a subsequent meeting.
On September 26, 2002, plaintiff met with ESD administrators. McGovern determined that plaintiff was in an unsafe environment at Camp Florence, and that because of the situation her safety could not be guaranteed. She was provided with a letter from McGovern which informed her that she would be transferred from Camp Florence to Oak Creek. A union lawyer representing plaintiff indicated that she would be filing a grievance against the transfer; McGovern decided to rescind the transfer letter, and placed plaintiff on paid leave instead. She remained on paid leave as ESD investigated her and Ramirez' complaints.
On January 10, 2003, the ESD, plaintiff, and plaintiff's union lawyer met to discuss the results of the investigation. Plaintiff and her union lawyer were presented with a document titled "Letter of Reprimand" that described those results. Generally, the letter articulated that plaintiff's complaints were unfounded, except for her assertion that students were accessing the internet inappropriately. The letter, signed by William McGovern, closed by noting that the letter would be placed in plaintiff's personnel file and may be referenced if further disciplinary proceedings were needed. The union lawyer objected to the disciplinary nature of the letter, and upon reconsideration McGovern withdrew it. He removed the title "Letter of Reprimand" and the paragraph regarding placing it in her personnel file, and provided it to plaintiff on January 15, 2003.
At the January 10 meeting, plaintiff was also advised that Oak Creek was closing, and that she would remain at Camp Florence unless she requested a transfer to Corvallis House. If she chose to stay at Camp Florence, she was given detailed instruction as to the deference she was to give the OYA in determining what program was most appropriate for its residents, and she was advised that the staff dynamics would be changing to reflect the difficulties that had accrued (i.e., she was not to talk to the other teachers). She was advised that she was a large cause of those difficulties, and was informed that she would be assigned a "Professional Communications" mentor.
Plaintiff did not return to OYA. After the January 10 meeting, plaintiff requested and was granted sick leave. She was hospitalized from February 3, 2003 to February 10, 2003, after suffering a breakdown, and took twelve weeks of FMLA leave upon her discharge from the hospital. She did not intend to return to ESD, and her union lawyer negotiated a waiver of the six-month notice requirement for a teacher to resign. Plaintiff resigned on April 14, 2003. On June 30, 2003, OYA terminated its contract with ESD and entered into an agreement with a different educational service district to handle its educational needs. The teaching positions that had been held by plaintiff and the other ESD employees at OYA facilities were accordingly eliminated.
Plaintiff's amended complaint sets forth five claims for relief: (1) a claim of retaliation for protected conduct, brought against the OYA and ESD under the Rehabilitation Act, 29 U.S.C. § 794; (2) a claim of retaliation for exercise of First Amendment rights, brought against the OYA and ESD under 42 U.S.C. § 1983; (3) a claim of retaliation for exercise of First Amendment rights, brought against the individual defendants under 42 U.S.C. § 1983; (4) a statutory whistleblowing claim brought against ESD under state law; and (5) an claim of intentional infliction of emotional distress, brought against ESD under state law. Defendants now seek summary judgment in their favor on all claims.
STANDARD OF REVIEW
A party is entitled to summary judgment as a matter of law if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c);Bahn v. NME Hosp's, Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). The moving party must carry the initial burden of proof. This burden is met through identifying those portions of the record which demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id. The facts on which the opponent relies must be admissible at trial, although they need not be presented in admissible form for the purposes of opposing the summary judgment motion. Id.
The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. Of North America, 638 F.2d 136, 140 (9th Cir. 1981).
Deference to the non-moving party does have some limit. The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). Where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 587 (1986). The "mere existence of a scintilla of evidence in support of the plaintiff's position would be insufficient."Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 248. However, trial courts should act with caution in granting summary judgment, and may deny summary judgment "in a case where there is reason to believe that the better course would be to proceed to a full trial." Anderson, 477 U.S. at 255.
DISCUSSION
I. Plaintiff's claims against OYA and McClellan
Plaintiff names OYA as a defendant in her Rehabilitation Act claim (claim 1) and in her § 1983 claim against the entities (claim 2). She names McClellan as a defendant in her § 1983 claim against the individual defendants (claim 3). Defendants argue, inter alia, that plaintiff has provided no evidence that would allow a reasonable jury to find these defendants liable under either the Rehabilitation Act or § 1983. I agree.
The Rehabilitation Act of 1973, 29 U.S.C. § 794(a), provides that no otherwise qualified individual with a disability shall, solely by reason of her or his disability, be excluded from participation in or denied the benefits of a federally funded activity or program. The anti-retaliation regulation adopted pursuant to Title VI of the Civil Rights Act of 1964 applies to the Rehabilitation Act. 34 C.F.R. § 104.61. That regulation provides, in part, that no recipient of federal funds shall intimidate, threaten, coerce, or discriminate against a person for the purpose of interfering with any protected right or privilege, or because that person has made a complaint. 34 C.F.R. § 100.7(e).
For plaintiff to prevail on her § 1983 First Amendment claims against these defendants, she must prove (1) that the conduct at issue was constitutionally protected; (2) that the defendants took an "adverse employment action" against her; and (3) that her protected conduct was a substantial or motivating factor in the adverse employment action. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003).
Plaintiff has made no showing that OYA or McClellan intimidated, threatened, coerced, or discriminated against plaintiff. She has similarly failed to demonstrate that OYA or McClellan took an adverse employment action against her. Rather, she shows that she worked with McClellan at OYA, and that McClellan was the primary administrator at the facility. She points out that McClellan was in charge of security; however, although she avers that she was not provided a safe environment to work in, she concedes that McClellan did not provide different security measures for her than for other staff, nor did he alter the security arrangements at the camp after she engaged in the speech at issue in this case. Plaintiff argues that McClellan had some authority over educational issues by virtue of being the de facto "principal" of the facility; however, she does not show that he actually took any action over her that was discriminatory, threatening, or coercive. Rather, she disagreed with what she perceived as the inappropriateness of some of the policies that OYA had, which McClellan implemented. Although she alleges one instance in which she and McClellan spoke about a problem in which McClellan did not support her — when another teacher allowed a student to use an inappropriate phrase — his failure to support her belief that he should censure the teacher was not a violation of the Rehabilitation Act or the First Amendment. Indeed, her allegation that McClellan admitted the student should be rebuked but that he would not speak to the teacher about it only reinforces my observation that McClellan had no supervisory authority over the ESD teachers, but rather was in charge of the other (non-educational) aspects of the facility, including meting out students' punishments.
Indeed, as plaintiff's employer was ESD, not OYA, and her supervisors were all ESD employees, it is difficult to see how OYA or McClellan could take an adverse employment action against her.
In the absence of any evidence that OYA or McClellan intimidated, threatened, coerced, or discriminated against plaintiff, or took an adverse employment action against her, in retaliation for her engaging in protected activity, defendants' motion for summary judgment in favor of OYA and McClellan as to the claims against them should be granted. II. Plaintiff's § 1983 claims against ESD, McGovern and Stratton A. On the merits
I also note that it is far from clear that the complaints that form plaintiff's protected conduct were ever directed at McClellan or other OYA officials.
When a government employee alleges that she has been punished in retaliation for exercising her First Amendment rights, the court engages in a three-part inquiry: to prevail, the employee must prove (1) that the conduct at issue was constitutionally protected; (2) that the defendants took an "adverse employment action" against her; and (3) that her protected conduct was a substantial or motivating factor in the adverse employment action. Coszalter, supra, 320 F.3d at 973; see also Keyser v. Sacramento Unified Sch. Dist., 265 F.3d 741, 750 (9th Cir. 2001). The government can escape liability by showing that it would have taken the same action even in the absence of the protected conduct. Keyser at 750. The employee's First Amendment rights are implicated when her interest in commenting on matters of public concern outweighs the government's interest in efficiency. Board of County Commissioners v. Umbehr, 518 U.S. 668, 676 (1996).
Defendants ESD, McGovern and Stratton ("the ESD defendants") concede for purposes of this motion that some of plaintiff's comments to them touched upon matters of public concern and were protected conduct under Umbehr. However, they argue that no actions they took can be properly characterized as adverse employment actions and that plaintiff cannot establish that the comments were a substantial or motivating factor in the defendants' alleged adverse employment actions. Both arguments fail under current Ninth Circuit law.
In Coszalter, the Ninth Circuit held that "if the plaintiffs . . . can establish that the actions taken by the defendants were `reasonably likely to deter [them] from engaging in protected activity [under the First Amendment],' they will have established a valid claim under § 1983." Coszalter, supra, 320 F.3d at 976. They noted that in that case, "some, perhaps all, of the following acts, considered individually, were adverse employment actions for purposes of plaintiffs' First Amendment retaliation suit: the transfer to new duties; an unwarranted disciplinary investigation; an unwarranted assignment of blame; a reprimand containing a false accusation; a criminal investigation; repeated and ongoing verbal harassment and humiliation; the circulation of a petition at the encouragement of management; a ten-day suspension from work; a threat of disciplinary action; an unpleasant work assignment; a withholding of customary public recognition; an unwarranted disciplinary action; and two consecutive ninety-day `special' reviews of work quality." Id. at 976-977 (emphasis supplied). In this case, the list of alleged adverse employment actions — as viewed in the light most favorable to plaintiff — is quite similar, including an unwarranted "letter of reprimand" (later rescinded), threats of transfer, several months of administrative leave imposed by ESD, and suggestions that a plan of assistance, used with employees working below expectations, should be implemented. Under the standard articulated in Coszalter, a reasonable jury could conclude that these acts were adverse employment actions.
In particular, the "letter of reprimand," which referenced almost exclusively plaintiff's speech and was generated in large part because of plaintiff's critical comments, is difficult to view as not "reasonably likely to deter" her — or any reasonable similarly situated individual — from speaking out again. Although the letter was withdrawn, modified slightly, and reissued as a "letter of instruction," a reasonable jury could easily conclude that the ESD defendants, in issuing the initial reprimand, had sent a message that could deter future criticism. Although the chilling effect of the other employment actions is less clear, when considered with the letter a jury could find that they were adverse employment actions.
A reasonable jury could also find that the ESD defendants' actions were motivated by plaintiff's protected conduct. Viewed in the light most favorable to plaintiff, the letter of reprimand was issued as a direct result of plaintiff's speaking out, as it deals almost exclusively with the items that she had complained about. It almost certainly would not have been generated in the absence of plaintiff's speech. Further, the timing of the actions taken by the ESD defendants can support an inference of retaliation. See Keyser, supra, 265 F.3d at 751 (holding that one way a plaintiff can show that retaliation was a substantial or motivating factor behind a defendant's adverse employment action is by introducing evidence regarding the proximity in time between the protected action and the allegedly retaliatory employment decision). Plaintiff's complaints began in December 2000, but were limited at that time to criticism of another ESD employee's work habits. In mid-2001, plaintiff began complaining about more specific substantive matters, and in late 2001 began complaining of retaliation. In May 2002, she was invited to a series of meetings which resulted in the suggestion of a transfer or a plan of assistance. In August or September 2002, she complained that her complaints had not been fairly addressed when compared to other employees' concerns, and in late September 2002 she was placed on administrative leave, which lasted until the letter of reprimand issued in January 2003. Although there were no immediate adverse employment actions taken immediately after her first complaints in December 2000, her 2001 complaints eventually resulted in arguably adverse employment actions in May 2002, and her August or September 2002 complaints resulted in McGovern putting her on administrative leave within one month, where she remained until the letter of reprimand was issued. For these complaints, thus, there was a six- to ten-month delay between the protected conduct and the May 2002 action, and less than a one-month delay between the protected conduct and the September 2002-January 2003 actions. As the Ninth Circuit reminded in Coszalter, three to eight months is "easily" within the time range that can support an inference of retaliation, and an eleven month gap in time is also within that range.Coszalter, 320 F.3d at 977 (citing Allen v. Iranon, 283 F.3d 1070, 1078 (9th Cir. 2002)). Although proximity in time is not a conclusive test, and should not be a "mechanistically applied criterion," in the context of this case I find that it is sufficient to support an inference of retaliation.
Because a reasonable jury could conclude that the ESD defendants' actions were adverse employment actions motivated by a retaliatory animus, defendants' motion against plaintiff's § 1983 claim against the ESD defendants should be denied.
It should be made clear, however, that the § 1983 claims which are sufficiently supported by the record involve discrete retaliation claims: for the letter of reprimand, the threat of a transfer or an involuntary plan of assistance, and the administrative leave. Plaintiff has not demonstrated that her "workplace [was] permeated with discriminatory intimidation . . . that [was] sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment," Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), such that she can establish that she suffered a hostile work environment. As such, she cannot maintain a claim for constructive discharge. Id. at 931 ("Where a plaintiff fails to demonstrate the severe or pervasive harassment necessary to support a hostile work environment claim, it will be impossible for her to meet the higher standard of constructive discharge: conditions so intolerable that a reasonable person would leave the job."). At trial, plaintiff should be limited to seeking damages on the basis of the discrete adverse employment actions described above.
B. Qualified immunity
The individual ESD defendants — McGovern and Stratton — argue that even if plaintiff's § 1983 claims are meritorious, they are entitled to summary judgment on the basis of qualified immunity. I disagree.
Governmental officials are entitled to qualified immunity only "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court, inPickering v. Board of Education, 391 U.S. 663, 571 (1968), established that the First Amendment protects employee speech on matters of "legitimate public concern" in 1968. The actions underlying this case took place between 2001 and 2003. As noted by the Ninth Circuit in Coszalter, "[t]hus, at the time the defendants acted, both the constitutional protection of employee speech and a First Amendment cause of action for retaliation against protected speech were clearly established." Coszalter, 320 F.3d at 979. Although defendants correctly point out that the Ninth Circuit has variously considered a number of balancing factors pursuant to Pickering to determine whether immunity is appropriate even in the face of adverse employment actions motivated by protected speech, on the record before me those factors cannot be adequately considered. Should the evidence at trial support qualified immunity, McGovern and Stratton may move for judgment in their favor on that basis at that time.
C. Entity liability
In order to establish liability on the part of ESD, plaintiff must prove that ESD had a policy or custom of violating First Amendment rights and that the policy or custom was the moving force behind the violation of plaintiff's First Amendment rights.Blair v. City of Pomona, 223 F.3d 1074, 1079 (9th Cir. 2000); see also Monell v. Department of Social Services, 436 U.S. 658, 694 (1978). Plaintiff has provided no evidence of an official policy, nor has she provided any evidence of a custom of retaliation. Further, she has not provided any evidence that McGovern or Stratton were, by virtue of their position, policymakers such that their individual actions can be imputed to the entity. In the absence of any evidence that ESD maintained a policy or custom of retaliation that caused plaintiff's injuries, summary judgment in favor of ESD on plaintiff's § 1983 claims should be granted.
III. Plaintiff's Rehabilitation Act claim against ESD A. Standing and exhaustion of remedies
ESD's arguments that plaintiff lacks standing to maintain a Rehabilitation Act claim against it and has failed to exhaust her remedies were dealt with in defendants' earlier motion to dismiss on an identical legal basis. The arguments still fail, and should again be denied.
B. On the merits
In Bennett v. Henderson, 15 F. Supp.2d 1097, 1112 (Kan. 1998), aff'd 172 F.3d 62 (10th Cir. 1999), a federal district court applied the burden shifting scheme of Title VII to a third party retaliation claim under the RA. The Title VII paradigm must be modified for use in an RA case, which does not depend on the employment relationship. Cf. Frazier v. Fairhaven School Committee, 276 F.3d 52, 67 (11th Cir. 2002) (modifying elements of Title VII prima facie case for application in Title IX claim).
To survive summary judgment on the RA claim, plaintiff has the initial burden to establish that she engaged in activity protected by the RA, and the alleged retaliator took action adverse to plaintiff with a retaliatory motive. See e.g. Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000) (discussing elements of Title VII retaliation claim). The requisite degree of proof is minimal, and may be lower than the preponderance of the evidence standard. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). If plaintiff satisfies this burden, she is entitled to a transitory presumption of retaliation, and the burden of production shifts to the defendant to articulate some legitimate, nonretaliatory reason for the adverse action. Costa v. Desert Palace, Inc., 299 F.3d 838, 855 (9th Cir. 2002). If defendant articulates such a reason, plaintiff may proceed to trial by raising a genuine factual question as to whether the articulated reason is pretextual. Chung v. University of California Davis, 225 F.3d 1115, 1128 (9th Cir. 2000). A plaintiff can prove pretext by direct or circumstantial evidence, or both. Id. At all times, plaintiff retains the ultimate burden of persuading the trier of fact that she has suffered retaliation for engaging in protected activity. Costa, 299 F.3d at 855.
As described above in considering plaintiff's § 1983 claim, plaintiff has put forth sufficient evidence that she engaged in conduct protected by the Rehabilitation Act (i.e., First Amendment speech and workplace complaints), and that the ESD, through its employees, took adverse actions against her in retaliation. Defendant argues that it took the actions for legitimate, nonretaliatory reasons; however, even assuming,arguendo, that such reasons have been demonstrated, plaintiff has sufficiently raised an issue as to pretext to survive summary judgment. Defendant's motion for summary judgment on plaintiff's Rehabilitation Act claim against ESD should be denied.
The Monell test applies only to § 1983 claims, not to Rehabilitation Act claims, which are governed by respondeat superior. Duvall v. County of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001).
IV. Plaintiff's claim under ORS 659A.203
Plaintiff asserts a claim against ESD for violating Oregon's whistleblower statute, ORS 659A.203, which provides, in relevant part, that it is an unlawful employment practice for a public employer to:
(b) Prohibit any employee from disclosing, or take or threaten to take a disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of:
(A) A violation of any federal or state law, rule or regulation by the state, agency, or political subdivision[.]
Oregon courts do not apply a burden shifting analysis to state civil rights claims. McPhail v. Milwaukie Lumber Co., 999 P.2d 1144, 1149 (Or.App. 2000). Thus, ESD is not entitled to summary judgment if plaintiff can prove a prima facie case of a violation of the statute. Messik v. Horizon Industries, Inc., 62 F.3d 1227, 1232 (9th Cir. 1995).
Some of plaintiff's complaints involved allegations that IEPs were not being followed and that credit was being inappropriately awarded. These allegations, if true, would have violated state and federal regulations. Further, she complained about inappropriate use of the internet in violation of district policy. Each of these complaints falls within the parameters of ORS 659 A.203(1)(b)(A). As plaintiff has made out her prime facie case, the claim should be allowed to be presented to a jury. Defendants' motion for judgment in favor of ESD on plaintiff's state whistleblower claim should be denied.
V. Plaintiff's IIED claim
Plaintiff also alleges that ESD intentionally inflicted emotional distress upon her in violation of Oregon common law. In order to state a claim for IIED, plaintiff needs to prove the following elements:
(1) That ESD intended to inflict severe mental or emotional distress or knew that severe emotional distress was substantially certain to result from its conduct;
(2) That ESD's acts in fact caused plaintiff's mental or emotional distress; and
(3) That ESD's acts consisted of "some extraordinary transgression of the bounds of socially tolerable conduct" or exceeded "any reasonable limit of social toleration."Patton v. J.C. Penny Co., 301 Or. 117, 122 (1986) (quotingHall v. The May Department Stores, 292 Or. 131 (1981).
The evidence presented by plaintiff is insufficient to demonstrate that the acts of ESD consisted of extraordinary transgressions of the bounds of socially tolerable conduct. Oregon courts require more than disciplinary actions and threats thereof to sustain plaintiff's burden on this element. See, e.g., Robinson v. U.S. Bancorp., 2000 WL 435468, *8-*10 (D.Or. 2000) (collecting cases). ESD should be granted summary judgment on plaintiff's IIED claim.
CONCLUSION
For the above stated reasons, defendants' motion (#36) for summary judgment should be granted as to OYA and McClellan on all claims, and as to the ESD on plaintiff's § 1983 claim and plaintiff's IIED claim. It should be denied as to McGovern and Stratton on plaintiff's discrete adverse employment action § 1983 claims, and as to the ESD on plaintiff's Rehabilitation Act and ORS 659A.203 claims.