Stensland v. City of Wilsonville, et al, No. 3:2011cv00490 - Document 53 (D. Or. 2011)

Court Description: OPINION AND ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT AND MOTION TO DISMISS: The defendants' motion for summary judgment is granted as to Stensland's Seventh, Eighth, Ninth, and Tenth Claims for Relief. The City's motion t o dismiss Stensland's Third and Sixth Claims for Relief is granted. Stensland has until January 16, 2012, to either amend her Complaint to add the bankruptcy trustee as plaintiff with regard to the pre-February 16, 2010, claims, or to have the bankruptcy trustee ratify those claims by formally abandoning them as assets of the bankruptcy estate. The court reserves ruling on Stensland's claims arising prior to February 16, 2010, until after January 16, 2012. (In re Motion for Partial Summary Judgment 10 ); Motion to Dismiss 10 .) Signed on 12/14/11 by Magistrate Judge Dennis J. Hubel. (kb)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF OREGON 6 PORTLAND DIVISION 7 JADENE STENSLAND, 13 ) ) Plaintiff, ) No. 03:11-cv-00490-HU ) vs. ) ) CITY OF WILSONVILLE, a municipality )MEMORANDUM OPINION AND ORDER incorporated in the State of Oregon;) ON MOTION FOR PARTIAL MICHAEL BOWERS, an individual; and ) SUMMARY JUDGMENT MICHAEL STONE, an individual; ) AND MOTION TO DISMISS ) Defendants. ) 14 ________________________________ 8 9 10 11 12 15 16 17 18 19 Abraham J. Barnett The Barnett Firm, LLC 10200 S.W. Greenburg Road, Suite 340 Portland, OR 97223 20 Attorney for Plaintiff 21 22 23 24 25 John Kreutzer Brian K. Weeks Smith Freed & Eberhard P.C. 111 S.W. Fifth Avenue, Suite 4300 Portland, OR 97204 Attorneys for Defendants 26 27 28 1 - MEMORANDUM OPINION AND ORDER 1 HUBEL, Magistrate Judge: 2 INTRODUCTION 3 4 The plaintiff Jadene Stensland brings this employment action 5 against her former employer, City of Wilsonville (the City ); her 6 former 7 supervisor, Michael Bowers. 8 defendants motion seeking partial summary judgment as to certain 9 of Stensland s claims, and dismissal of certain of her claims. 10 direct supervisor, Michael Stone; and Stone s direct The case is before the court on the Dkt. #10. 11 BACKGROUND FACTS 12 13 On March 14, 2006, the City extended an offer of employment to 14 Stensland by way of a letter. 15 specified that [t]he Deputy City Engineer - Capital Projects 16 position[] is an at will position which serves at the pleasure of 17 the City Manager. 18 statement that they understand this status. 19 Andrea M. Villagrana (the City s Human Resources Manager), Ex. 1, 20 p.1. On March 17, 2006, Stensland accepted the employment offer by 21 signing the bottom of the letter evidencing her agreement with the 22 terms and conditions of employment outlined in the letter. 23 p. 2. 24 25 Among other things, the letter All city management employees have signed a Dkt. #13, Decl. of Enclosed with the letter offer was the City s Manager Staff Directive #41, which stated as follows: 26 Management/Confidential At-Will Status 27 The City Manager has the final authority in the appointment, removal, and supervision of all management/confidential employees, with 28 Id., 2 - MEMORANDUM OPINION AND ORDER 1 the exception of those appointed directly by the City Council (City Attorney, Judge). 2 Management/Confidential employees are employed at-will and the City and its employees mutually reserve the right to end the employment relationship, with or without cause, at any time. 3 4 5 . . . In lieu of individual contracts, management/confidential employees shall sign this staff directive indicating receipt and understanding of the terms of employment with the City of Wilsonville. 6 7 8 9 Id., Ex. 2; Dkt. #20-2, Amended Decl. of Plaintiff, Directive #41 10 (ECF p. 34 of 46). Stensland signed a legend at the bottom of 11 Directive #41, indicating, I, Jadene Stensland[,] have received 12 and read a copy of this City Manager Directive regarding my at-will 13 status as an employee of the City of Wilsonville. Id. 14 The City does not have an employee handbook, but does have a 15 set of City Manager Staff Directives (collectively, the Staff 16 Directives ) setting forth key policies and procedures of the City. 17 Dkt. #14, Decl. of Michael Kohlhoff (City Attorney), ¶ 3; Dkt. #20, 18 ¶ 22 & Ex. C. 19 Stensland during the course of her employment with the City. 20 #20, ¶ 22. 21 Directive #41, quoted above; Directive #11, describing the City s 22 Administrative Leave policy; Directive #18, explaining the timing 23 of performance evaluations, and their distribution by the Human 24 Resources Assistant; and Directive #27, the City s anti-harassment 25 and anti-discrimination policies and procedures. 26 & 20-2. A copy of the Staff Directives was provided to Dkt. The Staff Directives include, among other things, See Dkt. ##20-1 27 Stensland began working for the City on April 24, 2006. She 28 alleges that beginning at some point in 2008, and continuing until 3 - MEMORANDUM OPINION AND ORDER 1 her termination in the spring of 2010, she was subjected to ongoing 2 gender-based discrimination and sexual harassment by Gerald Fisher, 3 an employee under her direct supervision, and whom she claims is a 4 close personal friend of Stone s. 5 she alleges the following: 6 a) Dkt. #1, ¶ 9. Specifically, Fisher engage[d] in insubordinate behavior directed at 7 [Stensland s] 8 openly expressing his unwillingness to be supervised by 9 a woman. 10 b) gender including, without limitation, Dkt. #1, ¶ 9; Dkt. #20, ¶ 11. In September 2008, Stensland completed an annual review 11 of Fisher which included comments relating to needed 12 improvement of his communication and social skills. 13 Dkt. #20, ¶ 6. 14 to indicate Fisher was exceeding expectations in all 15 categories. 16 c) Stone directed her to revise the report Id. Stensland received in her departmental inbox a 1950's 17 magazine article, which stated boldly, Women should know 18 their place[.] Id., ¶ 12; see Dkt. #20, Ex. B (article 19 entitled The good wife s guide, stating, inter alia, A 20 good wife always knows her place. ). 21 the article was a matter of harassment and discrimina- 22 tion based on [her] status as a woman[.] 23 ¶ 13. 24 the article. 25 d) Stensland believed Dkt. #20, Stone failed to address her complaint regarding Id. Stone told Stensland and the company s Human Resources 26 Manager that Fisher did not want to work for a woman, and 27 it would be better if Fisher reported directly to Stone. 28 Dkt. #1, ¶ 15; Dkt. #20, ¶¶ 10 & 11. 4 - MEMORANDUM OPINION AND ORDER 1 e) Stensland recommended, in the summer of 2009, that Fisher 2 be terminated based on his continued insubordinate and 3 inappropriate behavior, which was primarily directed at 4 [Stensland s] gender. 5 for this recommendation, explaining that managers could 6 only be terminated in accordance with certain disci- 7 plinary 8 Directives manual. 9 Fisher a verbal warning. 10 f) procedures Stone verbally reprimanded her set forth in the City s Staff Stone allowed Stensland to give Dkt. #1, ¶¶ 16-17. Stensland conducted a standard performance evaluation of 11 Fisher on or about September 4, 2009, which included a 12 recitation of Fisher s insubordinate behavior. 13 about September 11, 2009, Stone ordered Stensland to 14 amend the evaluation to remove all references to any 15 insubordinate behavior. 16 threatened with termination if she refused to make the 17 changes. 18 g) Id., ¶¶ 18-19. On or Stensland was Dkt. #20, ¶ 14. Stensland was reassured by Stone that discipline for 19 Managers follows the union process, and she would not be 20 terminated until she had received a verbal warning, 21 followed by a written warning and provided with a work- 22 plan to help [her] succeed. 23 h) Id., ¶ 15. In the fall of 2009, Fisher told his co-workers that he 24 and Stone had conceived a plan to push [Stensland] out 25 of the picture[.] 26 organizational 27 [Stensland s] position, and did not include [Stensland] chart 28 5 - MEMORANDUM OPINION AND ORDER Fisher showed co-workers a new which included Fisher in 1 at all. 2 action was taken. 3 i) Stensland reported the matter to Stone, but no Dkt. #1, ¶¶ 20-22. Following Fisher s comments to his co-workers, a rumor 4 began circulating about Stensland being forced out, and 5 sometime thereafter, her project assignments decreased 6 from an average of six active assignments to one. 7 ¶ 24. 8 Fisher 9 accommodating Fisher s unwillingness to work for a woman 10 In February 2010, her supervisory authority over was revoked, and her duties were by having Fisher report directly to Stone. 11 j) Id., Stensland also reported the ongoing decreased, Id., ¶ 26. hostile work 12 environment to Bowers during the winter of 2009-2010 and 13 spring of 2010. 14 took place in response to her complaints. Id., ¶¶ 27-28. 15 Stensland alleges that prior to her complaints about Fisher s 16 discriminatory and harassing behavior, and the resulting hostile 17 work 18 satisfactory in all respects. 19 Bowers approached her to discuss her work assignments, and during 20 their 21 employee could not be fired for performance-related issues without 22 first being counseled and given the opportunity to improve in those 23 areas. 24 assistance from the management team over the course of eighteen 25 months, Stensland never was offered any coaching or mentoring. 26 Dkt. #20, ¶ 21. She was terminated on May 21, 2010. 27 Stensland, termination 28 related issues. Id., ¶ 33. environment, meeting, her Bowers To her knowledge, no investigation ever performance her always were She claims that in April 2010, assured Id., ¶¶ 31-32. evaluations her that a management-level However, despite her requests for was 6 - MEMORANDUM OPINION AND ORDER based on alleged According to performance 1 Stensland filed the instant case on April 21, 2011, asserting 2 claims under 42 U.S.C. § 1983 and ORS § 659A.030, for sexual 3 harassment, 4 retaliation, breach of contract, and violation of her constitu- 5 tional rights. Stensland claims the defendants actions caused her 6 to suffer pain, fear, grief, anxiety, worry, and embarrassment, 7 id., ¶ 42, and she seeks economic, noneconomic, and punitive 8 damages, id., p. 18. 9 ¢ 10 11 ¢ 12 13 14 ¢ 15 ¢ 16 ¢ 17 18 ¢ 19 ¢ 20 ¢ 21 ¢ 22 ¢ 23 24 hostile work environment, wrongful discharge, She has alleged ten causes of action: First Claim for Relief: Fourteenth Amendment Violation; 42 USC § 1983 (Against Stone, and Bowers, and City of Wilsonville) [gender-based discrimination, sexual harassment, hostile work environment, and retaliatory discharge] Second Claim for Relief: Fourteenth Amendment Violation; 42 USC § 1983 (Against City of Wilsonville) [equal protection violation as a result of City s alleged endorsement and approval of Stone s, Bowers s, and Fisher s actions] Third Claim for Relief: Constitutional Rights Violations by City of Wilsonville Due to Failure to Adequately Train and Supervise Fourth Claim for Relief: Negligent Retention and Supervision (Against City of Wilsonville) Fifth Claim for Relief: Sexual Harassment (Against City of Wilsonville). Count One: Discrimination. Count Two: Hostile Work Environment. Count Three: Retaliation. Sixth Claim for Relief: Wrongful Discharge (Against City of Wilsonville) Seventh Claim for Relief: Breach of Employment Contract (Against City of Wilsonville) Eighth Claim for Relief: Breach of Implied Contract (Against City of Wilsonville) Ninth Claim for Relief: Breach of Oral Contract (Against City of Wilsonville) Tenth Claim for Relief: Breach of Duty of Good Faith and Fair Dealing (Against City of Wilsonville) Dkt. #1. 25 On October 30, 2009, Stensland filed a petition for relief 26 under Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 701 et seq. 27 See Dkt. #12, Decl. of Brian K. Weeks, Ex. 1 (copy of Stensland s 28 Voluntary Petition in Bankruptcy Case No. 09-39088-elp7). 7 - MEMORANDUM OPINION AND ORDER She 1 filed her bankruptcy schedules on November 19, 2009. 2 Stensland did not list as an asset in her bankruptcy schedules any 3 claims, 4 Stensland received a No Asset discharge on February 16, 2010. 5 Id., Ex. 3 (docket sheet in Case No. 09-39088-elp7 (Bankr. D. Or.); 6 see Dkt. #21, noting entry of order of discharge). 7 moved to amend her bankruptcy schedules at any time since her 8 discharge. including any potential or contingent Id., Ex. 2. claims. Id. She has not See id. 9 The defendants move for partial summary judgment or dismissal 10 as to all of Stensland s claims for relief, except her sexual 11 harassment claim against the City for alleged actions that occurred 12 after February 16, 2010. 13 summary judgment and for motions to dismiss, and then consider each 14 of the defendants motions. The court will review the standards for 15 SUMMARY JUDGMENT STANDARDS 16 17 Summary judgment should be granted if the movant shows that 18 there is no genuine dispute as to any material fact and the movant 19 is entitled to judgment as a matter of law. 20 56(c)(2). 21 must not weigh the evidence or determine the truth of the matter 22 but only determine whether there is a genuine issue for trial. 23 Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002) 24 (citing Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th 25 Cir. 1996)). Fed. R. Civ. P. In considering a motion for summary judgment, the court 26 The Ninth Circuit Court of Appeals has described the shifting 27 burden of proof governing motions for summary judgment as follows: 28 8 - MEMORANDUM OPINION AND ORDER 1 17 The moving party initially bears the burden of proving the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party s case. Id. at 325, 106 S. Ct. 2548. Where the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial. Id. at 324, 106 S. Ct. 2548. This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The non-moving party must do more than show there is some metaphysical doubt as to the material facts at issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 528 (1986). In fact, the non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party s favor. Anderson, 477 U.S. at 252, 106 S. Ct. 2505. In determining whether a jury could reasonably render a verdict in the non-moving party s favor, all justifiable inferences are to be drawn in its favor. Id. at 255, 106 S. Ct. 2505. 18 In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th 19 Cir. 2010). 20 employment discrimination action need produce very little evidence 21 in order to overcome an employer s motion for summary judgment. 22 Chuang v. Univ. of Calif. Davis, Bd. of Trustees, 225 F.3d 1115, 23 1124 (9th Cir. 2000). The Chuang court explained that this minimal 24 evidence standard is due to the nature of employment cases, where 25 the ultimate question is one that can only be resolved through a 26 searching inquiry one that is most appropriately conducted by a 27 factfinder, upon a full record. 28 Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)). 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Notably, [a]s a general matter, the plaintiff in an 9 - MEMORANDUM OPINION AND ORDER Id. (quoting Schnidrig v. STANDARDS FOR MOTIONS TO DISMISS 1 2 Chief Judge Aiken of this court recently set forth the 3 standard for the court s consideration of a motion to dismiss in 4 Gambee v. Cornelius, No. 10-CV-6265-AA, 2011 WL 1311782 (D. Or. 5 Apr. 1, 2011) (Aiken, C.J.). 6 Judge Aiken observed: Under Fed. R. Civ. P. 12(b)(6), a complaint is construed in favor of the plaintiff, and its factual allegations are taken as true. Daniels-Hall v. Nat l Educ. Ass n, 629 F.3d 992, 998 (9th Cir. 2010). [F]or a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief. Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). [O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563[, 127 S. Ct. 1955, 1969, 167 L. Ed. 2d 929] (2007). [G]enerally the scope of review on a motion to dismiss for failure to state a claim is limited to the Complaint. Daniels-Hall, 629 F.3d at 998. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Id. at *2. 21 DISCUSSION 22 23 A. Judicial Estoppel 24 The defendants seek summary judgment on all of Stensland s 25 claims that arose on or before February 16, 2010 - the date of her 26 bankruptcy discharge - on the basis that those claims are precluded 27 under the doctrine of judicial estoppel because Stensland failed to 28 list those claims on her bankruptcy schedules, and she also failed 10 - MEMORANDUM OPINION AND ORDER 1 to move to amend her bankruptcy schedules after her employment with 2 the City was terminated. The defendants argue Stensland obviously 3 knew of the alleged facts relating to her claims prior to filing 4 her bankruptcy schedules because she alleges that she complained 5 about discrimination and harassment prior to and throughout 2009. 6 Dkt. #11, p. 8. 7 Stensland argues she was not aware of any cause of action 8 against the defendants prior to her bankruptcy discharge. She 9 asserts [h]er claim did not become actionable until she was 10 subjected to the adverse employment action of being fired. Dkt. 11 #15, p. 4. 12 her bankruptcy discharge, and she did not give notice to the City 13 of her tort claim until September 9, 2010. She notes she was not fired until three months after Id., p. 5. 14 It has been observed that, [i]n the context of failure to 15 disclose a claim in bankruptcy, the law of judicial estoppel is 16 well-established in this circuit. Simoneau v. Nike, Inc., No. 04- 17 CV-1733-BR, 2006 WL 977302, at *3 (D. Or. Apr. 6, 2006) (Brown, 18 J.). 19 estoppel doctrine in Hamilton v. State Farm Fire & Casualty Co., 20 270 F.3d 778 (9th Cir. 2001), a case on which the defendants rely. 21 The Hamilton court explained: 22 23 24 25 26 27 28 The Ninth Circuit Court of Appeals discussed the judicial Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by asserting one position, and then later seeking an advantage by taking a clearly inconsistent position. Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600-601 (9th Cir. 1996); Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990). This court invokes judicial estoppel not only to prevent a party from gaining an advantage by taking inconsistent positions, but also because of general consideration[s] of the orderly administration of justice and to protect 11 - MEMORANDUM OPINION AND ORDER 1 against a litigant playing fast and loose with the courts. Russell, 893 F.3d at 1037. 2 3 Hamilton, 270 F.3d at 782. 4 The Hamilton court observed that the United States Supreme 5 Court has listed three factors that courts may consider in 6 determining whether to apply the doctrine of judicial estoppel[.] 7 Id. (emphasis in original). 8 the Court in New Hampshire v. Maine, 532 U.S. 742, 750-51, 121 9 S. Ct. 1808, 1815, 149 L. Ed. 2d 968 (2001). The three factors were enumerated by The Hamilton court 10 summarized the three factors as follows: (1) whether the party s 11 later 12 position ; Hamilton, 270 F.3d at 782 (citations omitted); (2) 13 whether a court accepted the party s earlier position, so that 14 judicial 15 proceeding would create the perception that either the first or 16 the second court was misled ; id. (quoting Edwards v. Aetna Life 17 Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)); and (3) whether the 18 party seeking to assert an inconsistent position would derive an 19 unfair advantage or impose an unfair detriment on the opposing 20 party if not estopped ; Hamilton, 270 F.3d at 783 (citations 21 omitted). 22 not 23 Rather, the equities must be balanced in each specific factual 24 context. 25 S. Ct. at 1815). position is clearly acceptance of an inconsistent inconsistent with position its in earlier a later The New Hampshire Court noted these three factors are exclusive or inflexible, nor is the formula exhaustive. Id. (paraphrasing New Hampshire, 532 U.S. at 751, 121 26 The Hamilton court explained that judicial estoppel acts to 27 prevent litigants from taking inconsistent positions within a 28 single action, and also from making incompatible statements in two 12 - MEMORANDUM OPINION AND ORDER 1 different cases. 2 Local 343, 94 F.3d 597, 605 (9th Cir. 1996)). 3 context, a party is judicially estopped from asserting a cause of 4 action not raised in a reorganization plan or otherwise mentioned 5 in the debtor s schedules or disclosure statements. 6 Hay v. First Interstate Bank of Kalispell, N.A., 978 F.2d 555, 557 7 (9th Cir. 1992); additional citations from other Circuits omitted). 8 Notably, however, because [j]udicial estoppel seeks to prevent the 9 deliberate manipulation of the courts[,] it is inappropriate . . . 10 when 11 mistake. 12 party s prior position was based In the bankruptcy on Id. (citing (citations omitted; emphasis added). 13 a Id. (citing Rissetto v. Plumbers & Steamfitters inadvertence or Helfand v. Gerson, 105 F.3d 530, 536 (9th Cir. 1997) Application of the three New Hampshire factors to the facts of 14 this case supports the defendants position. 15 later position -- that is, her claims asserted against the 16 defendants in this action clearly is inconsistent with her prior 17 position in her bankruptcy case, where she represented that she had 18 no claims, contingent or otherwise, against the defendants, or 19 against anyone else for that matter. 20 and unmatured claims fall within the scope of the claims that must 21 be disclosed in bankruptcy. 22 (citing 11 U.S.C. § 101(5), which defines the term claim to mean, 23 inter alia, a right to payment, whether or not such right is 24 reduced to judgment, liquidated, unliquidated, fixed, contingent, 25 matured, 26 secured, or unsecured ); see Hay, 978 F.2d at 557 (despite the fact 27 that not all facts were known to the debtor, enough was known to unmatured, First, Stensland s Even contingent, disputed, Simoneau, 2006 WL 977302, at *3 disputed, 28 13 - MEMORANDUM OPINION AND ORDER undisputed, legal, equitable, 1 require notification of the existence 2 of the asset to the bankruptcy court ) (citations omitted). 3 Second, Stensland succeeded in persuading the bankruptcy court 4 to accept her earlier position, which resulted in a no-asset 5 discharge. 6 this proceeding would create the misconception that either the 7 bankruptcy court or this court was misled. 8 at 782 (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 9 (6th Cir. 1982)). 10 Judicial acceptance of her inconsistent position in See Hamilton, 270 F.3d Third, Stensland would derive an unfair advantage over her 11 creditors if she were allowed to maintain her inconsistent 12 position, undermining the integrity of the very judicial system the 13 doctrine of judicial estoppel seeks to protect. 14 Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir. 15 1988). 16 debt, $1.5 million of which was unsecured. 17 assets listed in a debtor s bankruptcy schedules in determining 18 whether or not to contest discharge. See Whitworth v. Nat l Enter. 19 Sys., Inc., No. 08-968-PK, 2009 WL 2948529, at *4 (D. Or. Sept. 9, 20 2009) 21 possibility 22 discrimination claim might cause a creditor to think twice before 23 conceding to the discharge of debts. 24 Beet Sugar Coop., No. 02-4934, 2004 WL 368471, at *2 (D. Minn. Feb. 25 26, 2004) (citing United States ex rel. Gebert v. Transp. Admin. 26 Servs., 260 F.3d 909, 913 (8th Cir. 2001) ( property of the 27 bankruptcy estate includes all causes of action that the debtor See Oneida Motor I note Stensland and her husband had over $2 million in (King, J.) that (citing the Hamilton, debtor 28 14 - MEMORANDUM OPINION AND ORDER has 270 a Creditors rely on the F.3d at 785). meritorious The employment Harvey v. Southern Minn. 1 could have 2 emphasis by the Harvey court). 3 This brought analysis at the time assumes of the Stensland s bankruptcy claims petition ; against the 4 defendants accrued prior to her discharge in bankruptcy. Stensland 5 argues otherwise, and further asserts, without citation to any 6 supporting authority, that the question of her knowledge of a 7 potential claim is [a] factual determination that must be decided 8 by the finder of fact. 9 of action accrues for purposes of a § 1983 action is governed by Dkt. #15, p. 5. The issue of when a cause 10 federal law. Cabrera v. City of Huntington Park, 159 F.3d 374, 379 11 (9th Cir. 1998). Under federal law, the claim generally accrues 12 when the plaintiff knows or has reason to know of the injury which 13 is the basis of the action. 14 Union City, 25 F.3d 800, 801-02 (9th Cir. 1994)). 15 judicial estoppel when the debtor has knowledge of enough facts to 16 know that a potential cause of action exists during the pendency of 17 the bankruptcy, but fails to amend [her] schedules or disclosure 18 statements to identify the cause of action as a contingent asset. 19 Franklin v. Nike, Inc., No. CV-07-1667-PK, 2009 WL 6048126, at *6 20 (D. Or. Nov. 13, 2009) (Papak, M.J.); cf. Stupek v. Wyle Labs. 21 Corp., 327 Or. 433, 438, 963 P.2d 678, 681 (1998) (cause of action 22 under Oregon law accrues when facts have occurred and are in 23 existence that would be necessary for the plaintiff to prove in 24 order to support a right to judgment). Id. (quoting Elliott v. City of Courts impose 25 To determine whether Stensland knew or had reason to know, 26 prior to her bankruptcy discharge, that she had a potential claim 27 for gender-based discrimination or sexual harassment, the court 28 must examine the elements of those claims and determine when the 15 - MEMORANDUM OPINION AND ORDER 1 events occurred that would have given rise to a potential claim. 2 Stensland 3 Amendment violations, rather than strictly as violations of Title 4 VII. 5 2010 WL 4955874, at *3 (D. Or. Nov. 29. 2010) (Clarke, M.J.) 6 (observing that a plaintiff must exhaust administrative remedies 7 by filing a claim with the EEOC or BOLI before bringing a title VII 8 action[, 9 exhaustion ) (citing 42 U.S.C. § 2000e-5(f); Surrell v. California 10 couches her § 1983 claims in terms of Fourteenth Cf. Stewart v. Jackson County, slip op., No. CV-09-3039-CL, but] [s]ections 1981 and 1983 do not require such Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008)). 11 In her First Claim for Relief, Stensland claims the defendants 12 violated 13 discrimination and harassment on the basis of a person s sex, and 14 prohibiting a hostile work environment. 15 Rights Act of 1964 makes it an unlawful employment practice for an 16 employer . . . to discriminate against any individual with respect 17 to 18 employment, because of such individual s race, color, religion, 19 sex, or national origin. 20 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993) (quoting 21 42 U.S.C. § 2000e-2(a)(1)). 22 1983, the genesis of Stensland s claim is in Title VII. 23 his her right to compensation, equal protection terms, of laws prohibiting Title VII of the Civil conditions, or privileges of Harris v. Forklift Systems, Inc., 510 Thus, although pled under section The Ninth Circuit has explained the elements of a Title VII 24 sexual harassment and hostile work environment claim as follows: 25 To state a claim under Title VII, sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim s employment and create an abusive working environment. Ellison v. Brady, 924 F.2d 872, 876 (9th Cir. 1991) (citation omitted). To prevail under a hostile environ- 26 27 28 16 - MEMORANDUM OPINION AND ORDER 1 5 ment claim, a plaintiff must show that the environment was both objectively and subjectively hostile, that is, that (1) a reasonable person would find the environment hostile or abusive and (2) the victim subjectively perceived her environment to be abusive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S. Ct. 367, [370-71,] 126 L. Ed. 2d 295 (1993). . . . 6 Best v. California Dept. of Corrections, 21 Fed. Appx. 553, 556 7 (9th Cir. 2001) (citation omitted). 2 3 4 8 The Best court also discussed how the determination is made as 9 to whether a work environment is sufficiently hostile or abusive 10 11 for purposes of a Title VII claim: 24 [W]hether an environment is hostile or abusive can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee s work performance. Harris, 510 U.S. at 23[, 114 S. Ct. at 371]. Simple teasing, offhand comments, and isolated incidents (unless extremely serious) do not amount to discriminatory changes in the terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, [2283,] 141 L. Ed. 2d 662 (1998); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994). Faragher emphasized that conduct must be extreme to amount to a change in the terms and conditions of employment. 524 U.S. at 788. Furthermore, it is clear that though harassing conduct or language need not be sexual in nature in order to state a hostile work environment claim under title VII, the harassment must be based on the victim s gender. See Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000); cf. Ellison, 924 F.2d at 875 n.4. 25 Id.; see Patrick v. Martin, 402 Fed. Appx. 284, 285 (9th Cir. 2010) 26 (verbal harassment, standing alone, is insufficient to state a 27 claim under § 1983) (citing Oltarzewski v. Ruggiero, 830 F.2d 136, 28 139 (9th Cir. 1987)). 12 13 14 15 16 17 18 19 20 21 22 23 17 - MEMORANDUM OPINION AND ORDER 1 Stensland knew or had reason to know that she was being 2 harassed and subjected to discriminatory treatment on the basis of 3 her gender at the time each incident allegedly occurred. 4 alleged that the ongoing, pervasive harassment affected her work 5 environment and the performance of her job, and her complaints 6 about the ongoing harassment led to a reduction in her work 7 assignments and ultimately to her termination. 8 of the injury which is the basis of the action. 9 She had knowledge of enough facts to know that a potential cause of 10 action existed for sexual harassment and gender-based discrimi- 11 nation long before her employment was terminated, and certainly 12 while her bankruptcy case was pending. Her claims for gender-based 13 discrimination, sexual harassment, and hostile work environment 14 accrued at the time she allegedly was harassed and subjected to 15 discriminatory treatment. 16 employment ultimately was terminated. She has She therefore knew Cabrera, supra. Those claims existed whether or not her 17 The court recognizes that there could be a case (and perhaps 18 this is one) in which discriminatory or harassing conduct occurs 19 over a period of time. 20 a severe or pervasive enough environment to be actionable, but 21 enough egregious conduct may, at some point, accrue for it to be 22 actionable. 23 alleged conduct go over the tipping point? 24 exist as to whether the tipping point was reached only after her 25 employment was terminated, and before that time, while the conduct 26 was offensive, it was not actionable. 27 as to when it became actionable, then the question becomes, When 28 did it become potentially actionable enough to require Stensland For awhile, the conduct may not amount to For Stensland, the question becomes, When did the 18 - MEMORANDUM OPINION AND ORDER A question of fact may If the facts are not clear 1 to list it on her bankruptcy schedules? 2 attraction of this hair-splitting, the court finds the purpose of 3 the Bankruptcy Act is best served by requiring a debtor to err on 4 the side of claim disclosure, which Stensland did not do in this 5 case. 6 The court finds Stensland is Despite the intellectual judicially estopped from 7 asserting any claims made in reliance on adverse employment actions 8 and discriminatory behavior that preceded her bankruptcy discharge. 9 Her position in the bankruptcy proceeding that she did not have any 10 potential claims was inconsistent with her current position that 11 Fisher, Stone, and Bowers subjected her to discriminatory treatment 12 and created a hostile work environment prior to February 16, 2010. 13 She 14 discriminatory treatment and adverse employment actions occurring 15 after February 16, 2010. 16 during the pendency of her bankruptcy case and prior to her 17 bankruptcy discharge, that she would be terminated by the City on 18 May 21, 2010. 19 as Stensland maintains in her brief, events that occurred prior to 20 February 16, 2010, can be considered as evidence relating to her 21 retaliatory discharge claim. may, however, continue to pursue claims that relate to For example, she could not have known, Cf. Franklin, 2009 WL 6048126, at *7. In addition, 22 However, the court finds that entry of summary judgment on 23 Stensland s pre-February 16, 2010, claims would be premature at 24 this juncture. 25 system and the judicial system as a whole, and to ensure the just 26 resolution of the parties claims on their merits, Stensland is 27 granted thirty 28 bankruptcy trustee as the real party in interest with regard to her In order to ensure the integrity of the bankruptcy days, to January 19 - MEMORANDUM OPINION AND ORDER 16, 2012, to substitute the 1 pre-February 16, 2010, claims, or alternatively, to have the 2 bankruptcy trustee ratify those claims by formally abandoning the 3 pre-February 16, 2010, claims as assets of the bankruptcy estate. 4 See Schneider v. Unum Life Ins. Co., No. CV05-1402-PK, 2008 WL 5 1995459, 6 plaintiff to take similar actions). 7 either of these actions by January 16, 2012, then the court will 8 enter summary judgment against her on those pre-February 16, 2010, 9 claims. at *4 (D. Or. May 6, 2008) (Redden, J.) (ordering Should Stensland fail to take 10 The court, therefore, reserves ruling on the defendants 11 motion for summary judgment as to Stensland s pre-February 16, 12 2010, claims until after January 16, 2012. 13 14 B. Breach of Employment Contract 15 The defendants argue Stensland was at all times an at-will 16 employee, precluding her Seventh, Eighth, Ninth, and Tenth Claims 17 for Relief, all of which seek damages for the City s alleged breach 18 of an employment contract between Stensland and the city. 19 defendants seek summary judgment on those claims. The 20 [E]mployment contracts in Oregon are presumed to be at-will. 21 Arboireau v. Adidas-Salomon AG, 347 F.3d 1158, 1162 (9th Cir. 2003) 22 (citing Banaitis v. Mitsubishi Bank, Ltd., 129 Or. App. 371, 879 23 P.2d 1288, 1293 (1994)). 24 presumption that absent a contractual, statutory or constitutional 25 requirement, an employer may discharge an employee at any time and 26 for any reason. 27 814954, at *2 (D. Or. Apr. 9, 2001) (Brown, J.) (quoting Koepping 28 v. Tri-County Metro. Transp. Dist., 120 F.3d 998, 1002 (9th Cir. Under Oregon law, there is a legal Bland v. Blount, Inc., No. CV 00-579-BR, 2001 WL 20 - MEMORANDUM OPINION AND ORDER 1 1997)); accord Rushing v. SAIF Corp., 223 Or. App. 665, 669, 196 2 P.3d 115, 117 (2008) (at-will employee can be terminated for any 3 reason, or for no reason at all, and at any time ) (citing State v. 4 Saxon, Marquoit, Bertonit & Todd, 166 Or. App. 1, 6, 999 P.2d 1152, 5 1154 (2000)); Patton v. J.C. Penney Co., 719 P.2d 854, 856 (Or. 6 1986), abrogated on other grounds by McGanty v. Staudenraus, 901 7 P.2d 841 (1995). 8 indeed, an at-will employment relationship may be terminated even 9 for a bad cause. 10 11 Even the employer s motives are irrelevant; Lund v. Arbonne Intern., Inc., 132 Or. App. 87, 92, 887 P.2d 817, 821 (1994) (citations omitted). Stensland argues, however, that the City s employment 12 policies, as expressed in both verbal statements and written 13 documents, are 14 employment context. 15 determine whether the terms contained in the City s employee manual 16 are ambiguous. 17 to any language in the Staff Directives, or any other document 18 distributed by the City, that states any policy the court must 19 interpret. 20 Directive #41, expressly stating Management employees are employed 21 by the City at-will, which Stensland acknowledges having received; 22 and, on the other hand, alleged assurances by Stone and Bowers 23 that a management-level employee would not be terminated for 24 performance-related issues without first receiving counseling, and 25 an opportunity to improve in the areas of concern. contractually enforceable, Stensland Dkt. #15, p. 7. argues even the in court an at-will first must However, she has failed to point The only evidence presented here is, on the one hand, 26 In Stensland s Complaint, she alleges the City s written 27 employment policies set forth the promise that she would not be 28 discharged for substandard performance without first calling the 21 - MEMORANDUM OPINION AND ORDER 1 substandard performance to [her] attention ; and if her performance 2 ever was found to be substandard, she would be subjected to 3 progressive discipline, including verbal warnings for the first 4 instance of poor performance and written warnings for the second 5 instance of the same substandard performance prior to termination. 6 Dkt. #1, ¶ 84(a) & (b). 7 Stensland has submitted to the court are the Staff Directives, none 8 of which discusses, or even mentions, progressive disciplinary 9 policies the City will follow prior to terminating an employee. 10 Stensland has alluded to provisions in a collective bargaining 11 agreement governing the City s union employees, but she has offered 12 no evidence to prove she was covered by any such document, nor has 13 she offered the document itself for the court s review. The only written employment policies 14 The court finds Stensland has failed to meet her burden to 15 come forward with some evidence from which a jury could find a 16 written 17 anything 18 defendants motion for summary judgment as to Stensland s Seventh 19 Claim for Relief: Breach of Employment Contract (Against City of 20 Wilsonville) is granted. employment other contract than an existed at-will that employee. rendered Stensland Therefore, the 21 Stensland also alleges that an implied contract was created by 22 virtue of the City s maintenance of employment policies and a 23 course of conduct regarding progressive discipline including but 24 not limited to evaluations of performance, verbal warnings, written 25 warnings, transfers, temporary suspension and termination. 26 #1, ¶ 92. 27 it is clear that the terms are ambiguous [and] thus factual issues 28 remain as to whether the parties intended the relationship to be at Dkt. She argues that [u]pon review of the employee handbook, 22 - MEMORANDUM OPINION AND ORDER 1 will or only for cause. 2 failed to point to any evidence that these employment policies 3 existed or were put into practice, other than her allegations 4 regarding Stone s and Bowers s verbal assurances. 5 pointed to no terms in any employee handbook to support her 6 claim. Her allegations in the Complaint, and conclusory assertions 7 in her Declaration, regarding verbal assurances she was given are 8 insufficient to sustain Stensland s burden on summary judgment. 9 See Giulio v. BV CenterCal, LLC, ___ F. Supp. 2d ___, 2011 WL at *10 (D. Or. Dkt. #15, p. 8. Sept. 6, 2011) Again, Stensland has (Hernandez, She has 10 3924166, J.) ( A 11 nonmoving party cannot defeat summary judgment by relying on the 12 allegations in the complaint, or with unsupported conjecture or 13 conclusory statements. ) (citing Hernandez v. Spacelabs Medical, 14 Inc., 343 F.3d 1107, 1112 (9th Cir. 2003); Fed. R. Civ. P. 56). 15 Stensland has failed to come forward with admissible evidence to 16 support her claim that an implied contract existed between the 17 parties. 18 support of [her] position [is] insufficient. Giulio, 2011 WL 19 3924166, at *10 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 20 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986); Fed. R. 21 Civ. P. 56(c) (2010)). 22 Stensland s favor, the court finds no jury reasonably could render 23 a verdict in her favor on her claim that an implied contract 24 existed, and was breached. 25 summary judgment as to Stensland s Eighth Claim for Relief: Breach 26 of Implied Contract (Against City of Wilsonville) is granted. The mere existence of a scintilla of evidence in Even drawing all reasonable inferences in Therefore, the defendants motion for 27 Stensland further alleges that Stone s and Bowers s verbal 28 assurances constituted an enforceable oral contract which was 23 - MEMORANDUM OPINION AND ORDER 1 breached when Stensland was terminated without receiving counseling 2 and an opportunity to improve any performance concerns. Id., ¶¶ 97 3 & 98. 4 claim for breach of contract. 5 Transp. Dist., 120 F.3d 998, 1003 (9th Cir. 1997); cf. Hutton v. 6 Jackson County, slip op., 2010 WL 4906205, at *13 (D. Or. Nov. 23, 7 2010) (Clarke, M.J.). 8 meeting, a phrase plucked out of context, is too fragile a base on 9 which to rest such a heavy obligation inherent in [a contract of Oregon case law is clear that oral promises may support a Koepping v. Tri-County Metro. However, [a] casual remark made at a 10 employment.] Koepping, 120 F.3d at 1003 (quoting Mursch v. Van 11 Dorn Co., 851 F.2d 990, 997 (7th Cir. 1988)). 12 The determination as to whether or not an enforceable contract 13 exists is a question of law, using a standard of objective intent, 14 measured by whether a reasonable person would construe a promise 15 from the words and acts of the other. 16 *12 (citations omitted); see Pereira v. Thompson, 230 Or. App. 640, 17 217 P.3d 236 (2009) ( Whether a contract exists is a question of 18 law. ). 19 in generally-distributed, written materials stating that employment 20 is at-will and can be terminated by either party, an employee s 21 reliance on oral promises is considered unreasonable. 22 120 F.3d at 1003.1 23 by Stone and Bowers regarding the City s termination policies were Hutton, 2010 WL 4906205, at When oral promises are directly contradicted by language This is just such a case. Koepping, Any oral statements 24 25 26 27 28 1 In any event, Stensland has not alleged or shown that she acted in reliance on Stone s and Bowers s verbal statements. She also has failed to allege or show that either Stone or Bowers had the authority to enter into contractual modifications relating to Stensland s employment status on the City s behalf. 24 - MEMORANDUM OPINION AND ORDER 1 directly contradicted by language in Directive #41, expressly 2 specifying that all management employees were employed at will. 3 The court finds as a matter of law that even if Stone and 4 Bowers made the statements alleged by Stensland, those statements 5 nevertheless did not change Stensland s at-will employment and did 6 not create an oral employment contract. The defendants motion for 7 summary judgment on Stensland s Ninth Claim for Relief: Breach of 8 Oral 9 granted. Contract (Against City of Wilsonville), is, therefore, 10 Stensland s Tenth Claim for Relief, alleging the City breached 11 its duty of good faith and fair dealing, arises from the alleged 12 existence of an employment contract. 13 Seventh, Eighth, and Ninth Claims for Relief, above, the court has 14 found that no employment contract existed, and Stensland was at all 15 relevant times an at-will employee of the City. 16 claim can be maintained for breach of any duty related to a 17 nonexistent employment contract, and the defendants motion for 18 summary judgment on this claim also is granted. In addressing Stensland s Accordingly, no 19 20 C. 21 Wrongful Discharge The defendants seek dismissal of Stensland s wrongful 22 discharge claim, arguing the claim is not permitted under Oregon 23 law. 24 employment in Oregon. 25 F.3d 61 (Table), 1994 WL 444616 (9th Cir. 1994), the Ninth Circuit 26 observed that Oregon recognizes two exceptions to the general at- 27 will-employment rule; i.e., discharge for exercising a job-related 28 right and discharge for complying with a public duty. The court has discussed, above, the law relating to at-will See § B, supra. 25 - MEMORANDUM OPINION AND ORDER In Winn v. Case Corp., 33 Id., 1994 1 WL 44616, at *2 (citing Patton, 719 P.2d at 856-57); see Babick v. 2 Oregon Arena Corp., 333 Or. 401, 407 (2002) (same). This court has 3 observed that resisting sexual harassment is an example of the 4 exercise of a job-related right. Draper v. Astoria Sch. Dist., 995 5 F. Supp. 1122, 1127 (D. Or. 1998), abrogated in part on other 6 grounds by Rabkin v. Oregon Health Sciences Univ., 350 F.3d 967 7 (9th Cir. 2003) (citation omitted). 8 Stensland clearly had a right to be free from gender-based 9 discrimination and sexual harassment in the workplace, whether from 10 above or below her in the chain of command; to report to her 11 superiors when actions constituting harassment or discrimination 12 occurred; and to expect that her complaints would be addressed 13 properly. 14 as under the City s own anti-harassment and anti-discrimination 15 directives. 16 from her complaints about a hostile work environment due to sexual 17 harassment and gender-based discrimination, then her termination 18 would be contrary to public policy, and her wrongful discharge 19 claim would constitute the type of narrow exception to the at-will 20 employment 21 establishing the tort of wrongful discharge. 22 F. Supp. at 1127 ( In Oregon, the tort of wrongful discharge was 23 established 24 employment doctrine in certain limited circumstances where the 25 courts have determined that the reasons for the discharge are so 26 contrary to public policy that a remedy is necessary in order to 27 deter such conduct. ) (citations omitted). These rights arise under federal and state law, as well If, as Stensland alleges, her termination resulted doctrine to serve contemplated as a narrow 28 26 - MEMORANDUM OPINION AND ORDER by the Oregon exception courts in See Draper, 995 to the at-will 1 However, the tort of wrongful discharge was intended to 2 provide a remedy for unacceptable conduct only when no other 3 adequate remedy is available. 4 F. Supp. 2d 1214, 1220 (D. Or. 2006) (King, J.) (tort of wrongful 5 discharge never was intended to be a tort of general application 6 but rather [is] an interstitial tort to provide a remedy when the 7 conduct in question was unacceptable and no other remedy was 8 available ) (quoting Draper, 995 F. Supp. at 1128; additional 9 citation omitted). interests of See Cantley v. DSMF, Inc., 422 If an existing remedy is adequate to protect 10 the society, 11 discharge is precluded. 12 v. HSC Real Estate, slip op., No. CV08-1465-KI, 2010 WL 3222443, at 13 *3 (D. Or. Aug. 11, 2010) (King, J). 14 § 1983 may provide such an adequate federal remedy, precluding a 15 state-law claim for wrongful discharge when the state-law claim and 16 the § 1983 claim are based upon the same allegations. 17 Draper, 995 F. Supp. at 1131. 18 employment discrimination also may provide an adequate remedy to 19 protect the interests of society in maintaining non-discriminatory 20 workplaces. 21 discrimination on the basis of race, color, religion, sex, sexual 22 orientation, national origin, marital status, or age). See ORS then the tort remedy of wrongful See Draper, 995 F. Supp. at 1130-31; Ryan § A claim under 42 U.S.C. See Oregon law prohibiting unlawful 659A.030 (prohibiting employment 23 In the present case, Stensland alleges she was wrongfully 24 discharged in retaliation for her attempts to enforce her rights 25 under ORS § 659A.030 and 42 U.S.C. § 1983. 26 allow 27 equitable relief, compensatory damages, and punitive damages. 28 ORS § 659A.881(1) & (3)(a); 42 U.S.C. § 1983. a successful plaintiff to 27 - MEMORANDUM OPINION AND ORDER Both of these statutes recover, where applicable, See Moreover, § 1983 1 constitutes the exclusive federal remedy for Stensland s equal 2 protection claims. 3 701, 733, 109 S. Ct. 2702, 2722, 105 L. Ed. 2d 598 (1989) ( the 4 express cause of action for damages created by § 1983 constitutes 5 the exclusive federal remedy for violation of the rights guaranteed 6 in 7 Employment Dept., 509 F.3d 1065, 1068 (9th Cir. 2007) (citing 8 Jett). § 1981 by See Jett v. Dallas Indep. Sch. Dist., 491 U.S. state governmental units ); Pittman v. Oregon, 9 As the Draper court noted, a § 1983 claim will not always 10 provide an adequate remedy to preclude a wrongful discharge claim. 11 For example, a § 1983 claim is subject to unique defenses, such as 12 qualified immunity. 13 the facts of this case, the court finds the state and federal 14 statutes do provide an adequate remedy, precluding Stensland s 15 common-law wrongful discharge claim. 16 claims are based upon the same allegations. 17 prove substantially similar elements to prevail on either the 18 statutory claim or the common-law wrongful discharge claim. 19 will have to show that she engaged in a protected activity, and she 20 was 21 activity. Remedies available under the statutes and the common-law 22 claim also are the same. 23 § 659A.030, the court may award equitable relief, compensatory 24 damages, and punitive damages. 25 are 26 discharge. 27 (preponderance of the evidence) also is the same under both the 28 statutory and the common-law claim. terminated the same in Draper, 995 F. Supp. at 1131. retaliation remedies for However, on Her statutory and common-law engaging She will have to in the She protected For actions alleging violations of ORS ORS § 659A.885(1) & 3(a). available for Ryan, 2010 WL 3222443, at *3. 28 - MEMORANDUM OPINION AND ORDER the tort of These wrongful The standard of proof 1 Thus, because ORS § 659A.030 and 42 U.S.C. § 1983 provide an 2 adequate remedy at law for Stensland s wrongful discharge claim, 3 she cannot maintain a common-law claim for wrongful discharge under 4 Oregon 5 Stensland s Sixth Claim for Relief (Wrongful Discharge, against the 6 City) is granted. law. Therefore, the defendants motion to dismiss 7 8 D. Section 1983 Claims 9 The defendant City of Wilsonville moves for summary judgment 10 on Stensland s First and Second Claims for Relief against the City, 11 in which she asserts violations of 42 U.S.C. § 1983. 12 provides, in pertinent part: 13 14 15 16 17 18 19 Section 1983 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . . 42 U.S.C. § 1983 (1996). 20 [M]unicipalities and other local governmental bodies are 21 persons within the meaning of § 1983 . . . [but] a municipality 22 may not be held liable under § 1983 solely because it employs a 23 tortfeasor. 24 Brown, 520 U.S. 397, 403, 117 S. Ct. 1382, 1387-88, 137 L. Ed. 2d 25 626 (1997). 26 § 1983 in one of the following three ways: 27 28 Board of County Comm rs of Bryan County, Okla. v. Stensland may establish the City s liability under First, [she] may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a 29 - MEMORANDUM OPINION AND ORDER 1 longstanding practice or custom which constitutes the standard operating procedure of the [City]. . . . Second, [she] may establish that the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official governmental policy. . . . Whether a particular official has final policy-making authority is a question of state law. . . . Third, [she] may prove that an official with final policy-making authority ratified a subordinate s unconstitutional decision or action and the basis for it. 2 3 4 5 6 7 8 9 10 Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (internal quotation marks, citations omitted). 11 Stensland argues she has alleged facts sufficient for a jury 12 to render a verdict in her favor under all three of the Gillette 13 criteria. 14 and approved the actions of Fisher, Stone, and Bowers, and ratified 15 their unconstitutional actions by failing to investigate her claims 16 of harassment, discrimination, and hostile work environment. 17 claims this constituted a policy, custom, or longstanding practice 18 because her complaints regarding the unconstitutional activities 19 were ongoing over a long period of time, with ongoing acceptance 20 and ratification by officials with final policy-making authority, 21 including the City Manager, Arlene Loble. 22 See Dkt. #15, pp. 9-12. She alleges the City endorsed She The defendants have the initial burden to prove the absence of 23 a genuine issue of material fact. In re Oracle Corp., 627 F.3d at 24 387 (citation omitted). 25 [their] motion with affidavits or other similar materials negating 26 the opponent s claim, the court should not grant summary judgment 27 unless the record before the court demonstrates that the standard 28 for the entry of summary judgment . . . is satisfied. Although the defendants need not support 30 - MEMORANDUM OPINION AND ORDER Celotex 1 Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 2 L. Ed. 2d 265 (1986). 3 the 4 Stensland s § 1983 claim against the City. Although they state, in 5 their brief, that City policy-making rests with the City Manager, 6 with approval of the City Council, see Dkt. #11, p. 10, they have 7 offered no evidence to support that statement, nor have they shown 8 that 9 Stensland alleges she was told by Bowers that the City Manager had absence the of a final Here, the defendants have failed to prove genuine issue policy-making to him of material authority regarding not delegated. 10 delegated 11 Stensland s termination. See Dkt. #20, ¶ 19. The substantive law 12 governing 13 material. . . . 14 affect the outcome of the claim, the court may grant summary 15 judgment. 16 1261-SU, 2011 WL 5239732, at *2 (D. Or. Nov. 1, 2011) (Brown, J.) 17 (citing Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th 18 Cir. 2006)). 19 actually had policy-making authority for the City with regard to 20 investigations 21 particular instance, with regard to Stensland s termination and the 22 basis for it, could affect the outcome of Stensland s § 1983 claim 23 against the city. a claim the decision-making was fact or defense responsibility determines whether a regarding fact is If the resolution of a factual dispute would not Day v. United Parcel Serv., Inc., slip op., No. 09-CV- Here, resolution of the factual issue regarding who of harassment and discrimination, and in this 24 This analysis is illustrated by the U.S. Supreme Court s 25 decision in Pembaur v. City of Cincinnati, 475 U.S. 469, 480-41, 26 106 S. Ct. 1292, 1298-99, 89 L. Ed. 2d 452 (1986), summarized by 27 the court in Williams v. Multnomah Education Service District, No. 28 31 - MEMORANDUM OPINION AND ORDER 1 CV-97-1197-ST, 1999 WL 454633 (D. Or. Apr. 14, 1999) (Stewart, 2 M.J.; opinion adopted in toto by Frye, J.), as follows: 3 In Pembaur, . . . the Supreme Court held that a single decision by a municipal policymaker may be sufficient to trigger municipality liability under § 1983 as long as there was a deliberate choice to follow a course of action [] made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. However, the municipal policymaker must have final authority to establish municipal policy. Authority to make municipal policy may be granted by state legislative enactment or may be delegated by an official with final policymaking authority. The Court provided an example clarifying its ruling. In the example, a Board of County Commissioners sets the county employment policy but allows the County Sheriff discretion to hire and fire employees. If the Sheriff exercises his discretion in an unconstitutional manner, the county would not be liable because the Board still controls county policy. But if the Board had delegated its power to establish final employment policy to the Sheriff, then the Sheriff s decisions would represent county policy and the county would be liable. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Williams, 1999 WL 4546333, at *11. In the present case, the record 18 is insufficient to prove who had final authority to establish the 19 City s policy regarding the investigation of claims of harassment 20 and discrimination, the termination of employees within particular 21 departments, or whether the authority to terminate Stensland was 22 delegated to Bowers in this particular case. 23 Stensland also argues significant discovery remains to be 24 completed in this case, including depositions and outstanding 25 responses to discovery, and she asserts this additional discovery 26 concerns significant factual issues that likely will support her 27 claims. 28 Compel will be required to address Defendants objections to [her] She represented in her brief that it appears a Motion to 32 - MEMORANDUM OPINION AND ORDER 1 Requests for Production. 2 waited almost three months after filing her brief, and two weeks 3 after oral argument, to file a motion to compel. 4 filed a motion under Federal Rule of Civil Procedure 56(d) to 5 request additional time to complete discovery necessary for her to 6 respond to the defendants motion for summary judgment. 7 Dkt. #15, pp. 2-3. Nevertheless, she She never has Nevertheless, the court finds the current record is insuffi- 8 cient to support summary judgment. On the current record, and 9 drawing all justifiable inferences in Stensland s favor, she has 10 offered evidence from which a jury could render a verdict in her 11 favor on her § 1983 claim against the City. 12 City s motion for summary judgment on Stensland s First and Second 13 Claims for relief is denied.2 Accordingly, the 14 15 E. Negligent Training and Supervision 16 The City moves for summary judgment on Stensland s Third Claim 17 for Relief, in which she claims her constitutional rights were 18 violated due to the City s deliberate indifference and failure to 19 supervise, 20 regarding 21 procedures. 22 this claim, arguing the claim is not adequately pled under § 1983, 23 and in any event, the City has no duty to train its employees with 24 regard to the City s sexual harassment policies. 25 26 train the and City s discipline Fisher, Anti-Harassment Dkt. #1, ¶ 52. Stone, Policy and and Bowers reporting The City also moves for dismissal of Dkt. #11, p. 17. Stensland has not responded to the City s motion for summary judgment on this issue. She has responded to the motion to 27 2 28 But see the court s ruling in section A, supra, regarding those claims that arose prior to February 16, 2010. 33 - MEMORANDUM OPINION AND ORDER 1 dismiss, arguing her Third Claim for Relief is adequately pled 2 under § 1983, and case law supports denial of the City s motion to 3 dismiss. 4 In City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S. Ct. 5 1197, 103 L. Ed. 2d 412 (1989), the U.S. Supreme Court held that 6 under certain circumstances, a municipality can be liable under 7 § 1983 for constitutional violations resulting from its failure to 8 train municipal employees. 9 at 1200, 1204. Id., 489 U.S. at 380, 387, 109 S. Ct. However, the failure to train must, itself, result 10 in the constitutional deprivation suffered by the plaintiff, and 11 moreover, the municipality s failure to train must reflect[] 12 deliberate 13 inhabitants. 14 where a municipality s failure to train its employees in a relevant 15 respect evidences a deliberate indifference to the rights of its 16 inhabitants can such a shortcoming be properly thought of as a city 17 policy or custom that is actionable under § 1983. 18 at 389, 109 S. Ct. at 105. 19 more than, for example, an otherwise sound program [that] has 20 occasionally been negligently administered. Id., 489 U.S. at 391, 21 109 S. Ct. at 1206.3 indifference to the constitutional rights Id., 489 U.S. at 392, 109 S. Ct. at 1207. of its Only Id., 489 U.S. This is a high standard, and requires 22 The evidence offered by Stensland in support of this claim 23 falls far short of that required to sustain a failure-to-train 24 claim under Harris. Stensland has offered no evidence that the 25 26 27 28 3 The passage quoted by Stensland in support of her assertion that [t]here is a clearly adequate basis for the claim, Dkt. #15, p. 13, is not from the plurality opinion, but rather is from the concurring opinion by Justice O Connor, joined by Justices Scalia and Kennedy. See Harris, 489 U.S. at 397, 109 S. Ct. at 1209. 34 - MEMORANDUM OPINION AND ORDER 1 City s failure to 2 administration 3 policies resulted in the harassment and discrimination of which she 4 complains, or reflected deliberate indifference to the constitu- 5 tional rights of the City s inhabitants. 6 plausibly suggest a claim entitling Stensland to relief, nor do 7 they show any genuine issue of material facts exists for trial. 8 The court, therefore, grants the City s motion for summary judgment 9 as to Stensland s Third Claim for Relief: Constitutional Rights 10 Violations by City of Wilsonville Due to Failure to Adequately 11 Train and Supervise. 12 dismiss this claim is found to be moot.4 of train its or supervise anti-harassment its and employees in the anti-discrimination The facts as pled do not Accordingly, the defendants motion to 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 The court makes two additional observations regarding the defendants motions on Stensland s Third Claim for Relief. First, in support of their motion to dismiss this claim, the defendants rely heavily on a quote from Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998), for the proposition that an anti-harassment policy is not necessary as a matter of law. See Dkt. #11, p. 17. The Faragher Court observed, While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. Faragher, 524 U.S. at 807, 118 S. Ct. at 2293. The defendants have taken the quote out of context. The Court did not hold that, as a matter of law, an anti-harassment policy with complaint procedure is never necessary; rather, the Court was expanding on the proof required to sustain the two-part affirmative defense to liability or damages described by the Court in the case. The Court made the point that it will not always be necessary to prove an employer had promulgated an antiharassment policy with complaint procedure in order to prevail on the defense. See id. Second, in support of their motion for summary judgment on this claim, the defendants argue the claim is prohibited by the exclusive remedy provision contained in Oregon s Workers Compensation Law (ORS 656.018)[.] Dkt. #11, p. 11; see id., pp. 11-14. The argument presumably was based on a misunderstanding of the nature of this inartfully-pled claim; Stensland did not indicate clearly, in her Complaint, that this claim arises under 35 - MEMORANDUM OPINION AND ORDER 1 F. Individual Defendants 2 Bowers and Stone move to dismiss Stensland s First Claim for 3 Relief against them - the only claim she has brought against these 4 individual defendants. 5 Stensland has alleged they acted only in their official capacities 6 during the events giving rise to this action, and therefore, the 7 City is the only proper defendant. Stensland responds that she has 8 properly 9 capacities, under color of state law. alleged See Dkt. #1. Bowers and Stone Bowers and Stone argue acted in their individual She further suggests that 10 should the court find her complaint deficient in this regard, the 11 deficiency may be cured by amendment. 12 Stensland has the burden to plead properly and to prove each 13 essential element of her § 1983 claim. 14 F.3d 1114, 1117 (9th Cir. 1997). 15 under section 1983, [Stensland] must plead two essential elements: 16 1) that the Defendants acted under color of state law; and 2) that 17 the Defendants caused [her] to be deprived of a right secured by 18 the Constitution and laws of the United States. 19 Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir. 1983)). 20 has met both prongs of this pleading requirement in her Complaint. 21 The cases demonstrate that See Johnson v. Knowles, 113 To state a claim for relief historically, Id. (citing there Stensland has been 22 considerable confusion among litigants when determining whether an 23 action is brought against individuals in their official capacity or 24 their individual capacity. 25 when an action is brought against a person acting in an official The defendants correctly observe that 26 27 28 § 1983. In any event, because the court grants the defendants motion for summary judgment as to Stensland s Third Claim for Relief on other grounds, the court does not address this argument. 36 - MEMORANDUM OPINION AND ORDER 1 capacity at the time of the alleged actions, then suit against the 2 governmental 3 equivalent to a suit against the governmental entity itself. 4 Gomez v. Vernon, 255 F.3d 1118, 1126 (9th Cir. 2001) (citing 5 McRorie v. Shimoda, 795 F.2d 780, 783 (9th Cir. 1986)). officer in the officer s official capacity is 6 The U.S. Supreme Court has examined the distinction between 7 individual-capacity (or personal-capacity) lawsuits and official- 8 capacity lawsuits, explaining that [p]ersonal-capacity suits seek 9 to impose personal liability upon a governmental official for 10 actions he takes under color of state law. . . . Official-capacity 11 suits, in contrast, generally represent only another way of 12 pleading an action against an entity of which an officer is an 13 agent. 14 3105, 87 L. Ed. 2d 114 (1985) (quoting Monell v. New York City 15 Dept. of Soc. Servs., 436 U.S. 658, 660 n. 55, 98 S. Ct. 2018, 2035 16 n.55, 56 L. Ed. 2d 611 (1978)). 17 personal liability in a § 1983 action, it is enough to show that 18 the 19 deprivation of a federal right. 20 at 3105 (emphasis by the Court; citing Monroe v. Paper, 365 U.S. 21 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961)). Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, official, acting under On the merits, to establish color of state law, caused the Id., 473 U.S. at 166, 105 S. Ct. 22 Here, construing the Complaint in Stensland s favor and taking 23 her factual allegations as true, see Gambee, supra, the court finds 24 Stensland has pled facts sufficient to allow the court to draw the 25 reasonable inference that the individual defendants are liable for 26 the misconduct alleged. 27 and 28 discrimination, and a hostile work environment created by Fisher s Bowers were aware Stensland has pled facts indicating Stone of ongoing 37 - MEMORANDUM OPINION AND ORDER harassment, gender-based 1 actions, 2 properly, and took no action to remedy the situation. 3 alleged that her work load was reduced and she ultimately was 4 terminated in retaliation for her complaints. 5 these facts could give rise to liability under § 1983. 6 7 but they failed to investigate Stensland s claims She also has If proved at trial, The individual defendants motion to dismiss is, therefore, denied.5 8 CONCLUSION 9 10 In summary, the court orders as follows:6 11 1. Stensland has until January 16, 2012, to either amend her 12 Complaint to add the bankruptcy trustee as plaintiff with regard to 13 the pre-February 16, 2010, claims, or to have the bankruptcy 14 trustee ratify those claims by formally abandoning them as assets 15 of the bankruptcy estate. The court reserves ruling on Stensland s 16 claims arising prior to February 16, 2010, until after January 16, 17 2012. 18 19 20 21 2. The defendants motion for summary judgment is granted as to Stensland s Seventh, Eighth, Ninth, and Tenth Claims for Relief. 3. The City s motion to dismiss Stensland s Third and Sixth Claims for Relief is granted. 22 23 24 25 5 But, again, see the court s ruling in section A, supra, regarding those claims that arose prior to February 16, 2010. 26 6 27 28 This order addresses Stensland s First, Second, Third, Sixth, Seventh, Eighth, Ninth, and Tenth Claims for Relief. The defendants have not moved for summary judgment or dismissal as to Stensland s Fourth and Fifth Claims for Relief. 38 - MEMORANDUM OPINION AND ORDER 1 3. Subject to any later ruling regarding Stensland s pre- 2 February 16, 2010, claims, the City s motion for summary judgment 3 as to Stensland s First and Second Claims for Relief is denied. 4 4. Subject to any later ruling regarding Stensland s pre- 5 February 16, 2010, claims, the individual defendants motion to 6 dismiss Stensland s First Claim for Relief against them is denied. 7 IT IS SO ORDERED. 8 Dated this 14th day of December, 2011. 9 /s/ Dennis J. Hubel 10 11 _____________________________________ Dennis James Hubel Unites States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 39 - MEMORANDUM OPINION AND ORDER

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