Dosier v. Central Oregon Community College et al, No. 6:2013cv01465 - Document 77 (D. Or. 2015)
Court Description: OPINION AND ORDER: Defendants' motion for summary judgment 53 is GRANTED in part (as to claim 4). The parties' request for oral argument is DENIED as unnecessary. This action is DISMISSED and REMANDED to state court for further action. See formal OPINION AND ORDER. Signed on 10/14/2015 by Chief Judge Ann L. Aiken. (rh)
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Dosier v. Central Oregon Community College et al Doc. 77 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON SUSAN DOSIER, Civil No. 6:13-cv-1465-AA OPINION AND ORDER Plaintiff, vs. CENTRAL OREGON COMMUNITY COLLEGE and JIM WEAVER, Defendants. Daemie M. Kim Kevin T. Lafky Tonyia J. Brady Lafky & Lafky 429 Court Street, NE Salem, OR 97301 Attorneys for plaintiff Page 1 - OPINION AND ORDER Dockets.Justia.com Benjamin R. Becker Haley E. Percell John M. Stellwagen Kate A. Wilkinson Oregon School Boards Association 1201 Court Street NE Salem, Oregon 97301 Attorneys for defendants AIKEN, Chief Judge: Plaintiff Susan Dosier filed this action against Defendants Central Oregon ("Weaver"), Community ( "COCC") College and Jim Weaver alleging discrimination and retaliation against. COCC under the Oregon Family Medical Leave Act ("OFLA"), Or. Rev. Stat. §§ 659A.150-659A.186, and aiding and abetting liability against Weaver in violation of Or. Rev. Stat. 659A. 030 ( 1) (g) . § Plaintiff further alleges Weaver violated her right to due process under the Fourteenth Amendment of the United States Constitution and that COCC intentionally relations. interfered with her prospective economic Defendants move for summary judgment on all claims. For the reasons set forth below, defendants' motion is granted in part and this action is dismissed and remanded to state court. BACKGROUND Weaver Foundation. worked as the In July 2010, Administrative Assistant. Executive Director of the COCC plaintiff began working as Weaver's In April 2011, Weaver evaluated plaintiff's work as "outstanding" and gave her "particularly high" ratings in her first annual performance review. Page 2 - OPINION AND ORDER In June 2011, plaintiff's daughter became pregnant. and plaintiff had a series of oral and written Weaver communications regarding plaintiff's desire to take leave when the baby was born. Weaver repeatedly rejected plaintiff's requests for a schedule change permitting her to work four rather than five days a week. Plaintiff told Weaver she was concerned her daughter would suffer postpartum depression. Weaver responded she would be able to take medical leave if that happened. Plaintiff and Weaver agree their employment relationship began to sour in June 2011, but they disagree about the source of the problem. Although Weaver never told her he was unhappy about her decision to take leave, plaintiff alleges he began to treat her differently soon after they discussed her daughter's pregnancy and available leave options. He was "continually hostile," "repeatedly ask[ed] for information even after it was provided" and began, for the first time, performance. in June to express dissatisfaction with plaintiff's job Doc. 54-1 at 113. 2011, medical leave. but says Instead, he Weaver agrees the trouble started had no issue. with plaintiff taking· he alleges he began to notice problems with plaintiff's work performance. Plaintiff's daughter was diagnosed with postpartum depression. Plaintiff's request for medical leave was approved, and she obtained an extension while out on leave. She was on leave from November Plaintiff alleges 9, 2011 to November 26, Page 3 - OPINION AND ORDER 2011. her employment relationship with Weaver worsened upon her return from leave. In April 2012, plaintiff received a second annual performance evaluation. Unlike the first review, this review was largely negative; and it referenced specific problems with plaintiff's job performance. For example, take actions-such specific Weaver commented plaintiff failed to as obtain and install a particular software program on her computer; provide him with weekly updates on her tasks and priorities; and run an annual donor report-despite his repeated requests that she do so. During her annual review meeting, plaintiff disputed the accuracy of Weaver's complaints. She received an overall unsatisfactory rating of 2 out of 5, which led Weaver to place her on a "plan of assistance" as required by the collective bargaining agreement. On April meeting with 17, 2012, Weaver plaintiff. convened Buckles representative were in attendance. Improvements" in the areas of a and plan of assistance plaintiff's union The plan outlined "Expected timeliness, prioritizing work, attention to detail, follow through, initiative, and communication. The document concluded with text from the collective bargaining agreement, providing that an employee who meets the conditions of the plan of assistance by June 30 is entitled position and to receive a contractual pay increase. to retain Weaver wrote, "I am optimistic that with a positive response to this plan, Page 4 - OPINION AND ORDER her you can achieve a satisfactory evaluation and receive the contractual increase on July 1." Doc. 71-24 at 2. In the plan of assistance meeting, plaintiff again disputed the accuracy of the incidents documented in the second evaluation and referred to in the plan of assistance. plaintiff told Weaver he was not being truthful. At some point, Plaintiff refused to sign the plan of assistance, understanding it would take effect regardless. Three days later, on April 20, 2012, Weaver placed plaintiff on administrative leave, instructing her to hand in her keys and leave the campus immediately. On April 24, 2012, plaintiff was provided with a "Notice of Proposed Dismissal and Pre-dismissal Hearing." The Notice explained Weaver was recommending plaintiff's dismissal because their working relationship was "damaged beyond repair." Doc. 71-25 at 1. May 1, 2012, based on plaintiff's Weaver proposed dismissal as of (1) "inability or unwillingness to recognize and achieve the required level of performance required by [her] position"; (2) "failure to constructively participate in a contractually required process to assist [her] with performance issues"; (3) "refus[al] to acknowledge any responsibility for any performance or behavioral issues identified by [her] and (4) "repeatedly calling [her] supervisor a liar." at 1-2. Page 5 - OPINION AND ORDER supervisor"; Doc. 71-25 COCC convened a predismissal hearing on April 27, 2012. Plaintiff was accompanied by a union representative and presented evidence at the hearing. She compared her two performance reviews, and again disputed the accuracy of the negative items listed in the second review. employment, After the hearing, effective May 3, COCC terminated plaintiff's 2012. The termination letter specifically states plaintiff was dismissed not because of the problems documented in the evaluation, but due to her "behavior in the meeting unwillingness regarding to a plan accept of assistance," responsibility for specifically her performance and behavioral issues identified by Weaver. On June 19, 2013, County Circuit Court. plaintiff filed an action in Deschutes Defendants then removed the action to this court. STANDARDS Summary judgment is appropriate dispute as to any material fact judgment as a matter of law." if "there is no genuine and the movant is entitled to Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine issue of material fact. (1986). Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323 If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. 324. "Summary judgment is Page 6 - OPINION AND ORDER inappropriate if reasonable Id. at jurors, drawing all inferences in favor of the nonmoving party, return a verdict in the nonmoving party's favor." could Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201, 1207 (9th Cir. 2008). DISCUSSION Plaintiff brings a claim under 42 U.S.C. Weaver violated her Amendment right to due process 1983, § under the of the United States Constitution. asserting Fourteenth To prevail on a procedural due process claim, a plaintiff must demonstrate "(1) a deprivation of a constitutionally protected liberty or property interest, and ( 2) a denial of adequate procedural protections." McQuillion v. Duncan, parties plaintiff agree 306 F.3d 895, had a 900 protected (9th Cir. property 2002). interest The in continued employment with COCC, but they disagree over whether she was provided with adequate procedural protections. "The essential requirements of due process . and . are notice an Of opportunity Loudermill, 470 U.S. to respond." 532, 546 Cleveland (1985). Bd. Educ. v. A public employee with a property interest in continued employment is entitled to "oral or written notice of the charges against him, an explanation of the employer's evidence, story." Id. Plaintiff reasons and opportunity to present his side of the for received her a proposed pre-dismissal letter termination. At the outlining the pre-dismissql hearing, she had a union representative present and an opportunity Page 7 - OPINION AND ORDER to present evidence. officer was biased. Plaintiff has not alleged that the hearing After the hearing, plaintiff was terminated for reasons included in the pre-dismissal letter. That process was adequate to satisfy the requirements of procedural due process. Plaintiff asserts Weaver violated the collective bargaining agreement and/ or an implied or express contract in the plan of assistance. Specifically, Weaver failed to give her until June 30 to meet the plan of assistance requirements and initiated dismissal proceedings without first engaging in progressive discipline. These assertions are not procedural due process claims. v. Elique, 436 F.3d 1125, 1131 n.3 (9th Cir. 2006) See Dias (declining to decide whether to recognize a cause of action for "a substantive process injury resulting from arbitrary and unreasonable termination of government employment" (emphasis added)) . Plaintiff also challenging the performance. asserts veracity she was of effectively prevented from Weaver's assessment of her job She alleges Weaver's characterization of her behavior in the meetings as a "refus[al] to accept . . responsibility," doc. 71-25 at 2, as well as COCC's eventual adoption of that same characterization in its termination decision, deprived her of any meaningful ability to be heard. improper bias procedural opportunity due to on the part process present of the argument her Page 8 - OPINION AND ORDER side But without an allegation of hearing fails. of the officer, plaintiff's Plaintiff story, had the including her allegation that some of Weaver's comments were false. The hearing officer listened to all testimony and rendered a decision. The fact that the hearing officer credited Weaver rather than plaintiff does not .mean plaintiff was deprived of procedural due process. Plaintiff failed to demonstrate a genuine issue of material fact as to the adequacy of the pretermination procedures provided by COCC. Therefore, summary judgment is granted on plaintiff's due process claim. SUPPLEMENTAL JURISDICTION OVER PENDENT STATE LAW CLAIMS I need not consider plaintiff's remaining state law claims against defendants as I decline jurisdiction over those claims. to exercise supplemental Title 28 U.S.C. § 1367. provides the basis for supplemental jurisdiction: Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. The court has discretion to "decline to exercise" supplemental jurisdiction in various circumstances including when "the district court has dismissed jurisdiction." all claims over which has original 28 U.S.C. §.1367(c) (3). That is exactly the situation at bar. jurisdiction it over the state law claims was Here, based supplemental on federal question jurisdiction over the single federal claim, for violation Page 9 - OPINION AND ORDER of procedural due process. The court grants summary judgment on the federal claim, and declines to exercise jurisdiction over the remaining state law claims. Therefore,. this complaint is dismissed in its entirety. CONCLUSION Defendants' motion for summary judgment (doc. 53) is GRANTED in part (as to claim 4). DENIED as unnecessary. The parties' request for oral argument is This action is DISMISSED and REMANDED to state court for further action. IT IS SO ORDERED. Dated this E of Ann Aiken United States District Judge Page 10 - OPINION AND ORDER
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