Opinion
Case No.: 6:18-cv-00506-MK (Lead Case) Case No.: 6:18-cv-00507-MK (Member Case)
05-05-2020
LORRIE BIGGS, Plaintiff, v. CITY OF ST. PAUL, an Oregon Municipal Corporation; KIMBALL WALLIS, an Individual; and LAURA SCHROEDER, an Individual, Defendants. LEE KOCH, Plaintiff, v. CITY OF ST. PAUL, an Oregon Municipal Corporation; LAURA SCHROEDER, an Individual; and KIMBALL WALLIS, Defendants.
FINDINGS AND RECOMMENDATION RE: DEFENDANT'S MOTION TO DISMISS KASUBHAI, Magistrate Judge :
Plaintiff Lorrie Biggs and Plaintiff Lee Koch each filed a separate action (respectively, "Biggs' Action" and "Koch's Action") against their former employer, Defendant City of St. Paul, Oregon ("City"), and Kimball Wallis and Laura Schroeder, alleging First Amendment violation under 42 U.S.C. § 1983, various violations of Oregon Revised Statute Chapter 659A, and various common law claims including Intentional Infliction of Emotional Distress ("IIED") and defamation. The Court consolidated Biggs' Action and Koch's Action for purposes of discovery and dispositive motions. Biggs' Action, ECF No. 36; Koch's Action, ECF No. 38.
The Court previously granted Defendants' Motion to Dismiss Biggs' First Amended Complaint ("FAC"), allowing Biggs leave to amend. ECF Nos. 56, 67 . Biggs filed a Second Amended Complaint ("SAC") alleging the following claims. ECF No. 74.
Citations of court documents hereafter only reference Biggs' Action.
The Order (ECF No. 67) adopts the Findings and Recommendation (ECF No. 56) in its entirety.
| Claim I | Count I - ORS 659A.203 Against the City |
| Count II - ORS 659A.230 Against the City | |
| Claim II | 42 U.S.C. § 1983 First Amendment Against the City |
| Claim III | 42 U.S.C. § 1983 First Amendment Against Wallis and Schroeder |
| Claim IV | ORS 659AA.030(1)(g) Against Wallis and Schroeder |
| Claim V | Intentional Infliction of Emotional Distress Against the City |
| Claim VI | Intentional Infliction of Emotional Distress Against Wallis |
| Claim VII | Defamation Against Wallis and Schroeder |
| Claim VIII | Public Disclosure of Private Facts Against Wallis |
| Claim IX | False Light Against Wallis |
| Claim X | ORS 659A.030(1)(f) Against the City |
Before the Court is Defendant's Motion to Dismiss Plaintiff Biggs' Second Amended Complaint. ECF No. 78. For the reasons set forth below, Defendant's Motion to Dismiss (ECF No. 78) should be GRANTED in part and DENIED in part as follows:
| Claim I | Count I: DENIED |
|---|---|
| Count II: GRANTED (dismissed with prejudice) | |
| Claims II & III | DENIED |
| Claim IV | DENIED |
| Claim V & VI | DENIED |
| Claim VII | GRANTED |
| Claim VIII | GRANTED |
| Claim IX | GRANTED |
| Claim X | GRANTED (dismissed with prejudice) |
BACKGROUND
In the SAC, paragraph 7 (subparagraphs (a) to (xxx)) and paragraph 8 (subparagraphs (a) to (nnnnnnnnn)) allege extensive facts concerning Biggs' whistleblowing complaints and disclosures as well as Defendants' conduct. SAC ¶¶ 7-8, ECF No. 74. A comparison of the SAC and the FAC reveals that the facts alleged in their respective paragraphs 7-8 are substantially the same with certain discrete additions and revisions. Compare SAC ¶¶ 7-8, ECF No. 74 with FAC ¶¶ 7-8, ECF No. 40. Paragraph 5 of the SAC includes new allegations primarily concerning the job duties Defendants allegedly removed from Biggs' responsibilities. Compare SAC ¶ 5, ECF No. 74 with FAC ¶ 5, ECF No. 40.
A redline comparison of SAC and FAC is attached as Exhibit A to this Findings and Recommendation.
The Court quotes the Background in its prior Findings and Recommendation ("F&R") for the facts that remain largely the same in the SAC. F&R 4-8, ECF No. 56. I. Same facts alleged in the FAC and SAC (stated in the previous F&R, ECF No. 56 )
This entire section I quotes the Court's prior F&R including the citations in the F&R. F&R 4-8, ECF No. 56.
Biggs began working for the City in 2005 as the City Recorder, taking on additional duties as City Treasurer in 2007. ECF 40, ¶5. Per the City Charter, Biggs was supervised by and reported to City Council. ECF 40, ¶5.
In November 2014, Biggs complained to City Council that Wallis, then mayor-elect, had asked her to take actions and do work that she believed violated the City's charter. ECF 40, ¶7(c). In February 2015, Biggs complained to various individual council members, to City Council, to the City's insurance provider, and to the then-city attorney about Defendant Wallis' conduct towards her, characterizing it as harassment and as retaliatory. ECF 40, ¶7(f)-(h),(m),(u).(v). Nonetheless, Biggs routinely informed Wallis that he was acting outside of his authority. For example, in March 2015, Biggs told Wallis that he did not have authority to waive permit fees for the rodeo association. ECF 40, ¶7(j). That same month, Biggs filed a grievance with City Council alleging a hostile work environment, whistleblowing, and sexual harassment. ECF 40, ¶7(j). Throughout 2015, frustrated by the apparent lack of action, Biggs complained to City Council on multiple occasions that her grievance had not been addressed. ECF. ¶7(r)(s)(ee).
Biggs' relationship with Wallis continued to deteriorate. She continued to complain to individual City Councilors about Wallis' conduct towards her, but Councilors told Biggs they did not know what to do. ECF 40, ¶7(u). In November 2015, Biggs filed a worker's compensation claim based upon Wallis' conduct towards her. ECF 40, ¶7(v). Subsequently, during a City Council meeting, Wallis presented a document that purported to show Biggs' wages. Biggs challenged the accuracy of the document and Wallis accused Biggs of fraud, which Biggs denied. ECF 40, ¶7(w). Wallis continued to make false and unfounded insinuations that Biggs engaged in fraud. ECF 40, ¶8(ooo), (ttt),(uuu),(ccccc).
Biggs regularly complained [to] council member about how staff were treated by Wallis at City Council meetings. ECF 40, ¶¶7(dd) 8(dddd),(llll). From October 2016 through September 2017, Biggs made numerous complaints to City Council, individual councilors, and Schroeder regarding Wallis' use of social media, including blocking Plaintiff [Biggs] from the Facebook page Wallis maintained as a "community" page, and alleging that he violated the City's social media policy by posting disparaging, false, or misleading statements about city staff. ECF 40, ¶7(mm)(nn)(bb)(ss)(bbbb)(ffff). In September 2016, Biggs complained that, due to posts on Wallis' "community" Facebook page, she had received an inquiry from the news station about city water causing people's hair to fall out and making people sick. ECF 40, ¶7(ii). Biggs subsequently questioned Wallis' public posts on his "community" Facebook page about the city's water issues after he had instructed staff to refer all questions about city water to himself or Schroeder. ECF 40, ¶7(uu).
At a City Council meeting in October 2016, Biggs voiced her opinion that the City should not waive fees for water usage for the Fire Department because it was unfair for tax payers within the city limits to carry the burden of the entire fire district. Biggs also questioned why the City spent $10,000 to install a water meter and vault at the fire station if the City had not intended to bill the fire station for its usage. ECF 40, ¶(oo).
In November 2016, Plaintiff Biggs complained to City Council that Wallis excluded her from meetings regarding projects she was assigned to, and in January 2017 she complained that Wallis and Schroeder were "taking over" her job duties and excluding her involvement. ECF 40, ¶7(ww)(zz)(aaa). In December 2016, she filed a tort claim notice, alleging discrimination, whistleblowing, and other claims. ECF 40, ¶7(xx).
In April 2017, Biggs raised multiple concerns regarding Schroeder's bills for legal services. ECF 40, ¶7(lll),(mmm),(nnn),(ppp). Biggs also voiced concern, via e-mail, that City Council was regularly making expenditures without first checking with Biggs to verify whether the funds were budgeted; Biggs reported that the general fund was $50,000 over budget and that City Council was violating state budget laws. ECF 40, ¶7 (ooo). A month later, Biggs voiced similar concerns regarding expenditures and the City's failure to include her, as treasurer, in its spending discussions. ECF 40, ¶7(rrr).[]
In June 2017, Biggs complained at a City Council meeting that Wallis spent city funds without authorization at a business in which City Councilor Dolan was a partner. ECF 40, ¶7(sss). At the same council meeting, Biggs alleged that Schroeder charged the City for work she had not completed, and voiced concerns that Council was making spending decisions in executive sessions and hiding the expenditures from herself and the public. ECF 40, ¶7(ttt)(uuu). A couple of days later, Biggs sent a complaint to City Council stating that she could not perform her duties as treasurer when individual council members and Wallis made expenditures without spending authority. ECF 40, ¶7(vvv). At the end of June[] 2017, Biggs contacted Councilor Waldo and informed him that she needed time off because of the constant harassment. ECF 40¶[] 7(xxx).
In July 2017 Biggs contacted the Marion County Sheriff's Office to report that city hall had been broken into, apparently by Wallis. ECF 40 ¶7(yyy). A couple days later, Biggs told Councilor Waldo that his involvement in "breaking in" to City hall was likely illegal and that neither he nor Wallis had authority to break in or to hire a locksmith. ECF 40, ¶7(zzz). Shortly thereafter, Plaintiff [Biggs] reported (it is unclear to whom) that all three city recording devices were missing. ECF 40, ¶¶7 (aaaa),(yyy), 8(wwwwwww).
In September 2017, Biggs sent Schroeder an e-mail inquiring why her office billed the City $560 to fix Schroeder's office's billing issue. ECF 40, ¶7(dddd). At a subsequent city council meeting, Plaintiff [Biggs] complained that Wallis and individual councilors continued to engage Schroeder without spending authority to do so. Plaintiff [Biggs] alleged that spending on legal fees had been excessive. ECF 40, ¶7(eeee). In October 2017, at a city council meeting, Plaintiff [Biggs] complained that Wallis continued to make unauthorized expenditures. Plaintiff [Biggs] also complained that there was no accountability for tasks assigned to Schroeder and suggested that cost estimates and scopes of work be generated for large projects not covered under the City's monthly retainer. ECF 40, ¶7(gggg).
Following a few months of escalating tensions, in mid-October 2017, Biggs went on workers' compensation leave. ECF 40, ¶8 (wwwwwwww). She was ultimately terminated in late January 2018, although the termination letter stated that her last day of employment was December 12, 2017. ECF 40, ¶ 8(kkkkkkkkk).
II. New facts alleged in the SAC
The SAC adds the allegation that while Biggs was the City Recorder and City Treasurer, she "did not maintain all of the job duties typically associated with those titles." SAC ¶ 5, ECF No. 74. Biggs alleges that Wallis and Schroeder removed Biggs' job duties as a result of her whistleblowing complaints. Id. Paragraph 5 of the SAC lists chronologically the removal of Biggs' various job duties. Id. ¶¶ 5(a)-(v).
Biggs also adds the allegations that her job duties had been removed when she made certain complaints and disclosures. Specifically, Biggs' job duty of enforcing the charter had been removed when she complained about Wallis' unauthorized spending on attorney fees. Id. ¶¶ 7(e), (lll). Biggs' job duty of reconciling bills had been removed when she "reported to Councilor Koch that Schroeder's bills were given to Wallis to reconcile without City Council approval." Id. ¶ 7(yy). Additionally, Biggs was excluded from making decisions for attorney expenditures when she complained about City Council's inappropriate expenditures without prior transfer. Id. ¶ 7(hhh).
Biggs further adds the allegation that she reasonably believed that she complained and disclosed conduct that violated laws, which were matters of public concern. See e.g., id. ¶¶ 7(e)-(aa), (dd)-(jj).
LEGAL STANDARD
Where the plaintiff "fail[s] to state a claim upon which relief can be granted," the action must be dismissed. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
While a complaint . . . does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level ...Id. at 555 (citations omitted). Moreover, when assessing the sufficiency of any civil complaint, a court must distinguish factual contentions - which alleged behavior on the part of the defendant that, if true, would satisfy one or more elements of the claim asserted - and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In short, "a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Id. (citations and internal quotations omitted).
Where amendment would be futile, it is appropriate to dismiss the claim with prejudice. See Universal Mortg. Co. v. Prudential Ins. Co., 799 F.2d 458, 459 (9th Cir.1986) ("Although leave to amend 'shall be freely given when justice so requires,' it may be denied if the proposed amendment either lacks merit or would not serve any purpose because to grant it would be futile in saving the plaintiff's suit.").
DISCUSSION
Biggs brought this matter under federal question jurisdiction and supplemental jurisdiction. SAC ¶ 1, ECF No. 74. The Court first addresses Biggs' federal law claims. I. Federal Law Claims: Claim II and Claim III - Section 1983 Claims of First Amendment
The SAC also alleges violation of the Fourteenth Amendment. SAC ¶¶ 30, 38, ECF No. 74. Defendants' motion does not raise any issue concerning the Fourteenth Amendment. See Defs.' Mot. Dismiss, ECF No. 78.
Biggs alleges First Amendment violation under Section 1983 in Claim II and Claim III. SAC ¶¶ 28-38, ECF No. 74. Claim II is against the City and Claim III is against Wallis and Schroeder. Id. Defendants argue that Biggs' speech is not protected. Defs.' Mot. Dismiss 2-8, ECF No. 78.
The Ninth Circuit has held:
In order to state a claim against a government employer for violation of the First Amendment, an employee must show (1) that he or she engaged in protected speech; (2) that the employer took "adverse employment action"; and (3) that his or her speech was a "substantial or motivating" factor for the adverse employment action.Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) (citations omitted). "An employee's speech is protected under the First Amendment if it addresses 'a matter of legitimate public concern.'" Id. (citations omitted).
Defendants raise two issues for Claim II and Claim III: (1) whether Biggs' speech addressed matters of public concern, and (2) whether Biggs spoke in her capacity as a private citizen. Defs.' Mot. Dismiss 2-8, ECF No. 78; Pl.'s Resp. 5-14, ECF No. 88; see also, F&R 12-16, ECF No. 56.
a. Biggs' speech that did not address matters of public concern
"[S]peech that concerns 'issues about which information is needed or appropriate to enable the members of society' to make informed decisions about the operation of their government merits the highest degree of first amendment protection." McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983) (quoting Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L.Ed. 1093 (1940)). On the other hand, speech that deals with "individual personnel disputes and grievances" and that would be of "no relevance to the public's evaluation of the performance of governmental agencies" is generally not of "public concern." Id. The determination of whether an employee's speech deals with an issue of public concern is to be made with reference to "the content, form, and context" of the speech. Allen v. Scribner, 812 F.2d 426, 430 (9th Cir. 1987) (quoting Connick v. Myers, 461 U.S. 138, 147 (1983)).
Previously, the Court found that the following complaints as alleged in the FAC were individual personnel issues and not matters of public concern:
Biggs' complaints to various individual council members, to City Council, to the city's insurance provider, and to the previous city attorney about the conduct of individual City Councilors and Wallis pertain to the workplace environment and are, therefore, not matters of public concern. ECF 40, ¶7(f)-(h), (m), (u), (v), (dd). Biggs' complaints about public treatment of staff - including how staff were treated at City Council meetings and Wallis' disparagement of staff on his
"community" Facebook page -- also pertain to workplace grievances and are not transformed into matters of public concern because the mistreatment of staff was conducted in the public eye. ECF 40, ¶7(w), (bb), (dd), (mm), (nn), (ss), (bbbb), (ffff). Likewise, Biggs' complaints about her work assignments and Wallis' interference with those assignments directly pertain to her job duties, and are therefore not matters of public concern. ECF 40, ¶7(ww), (zz), (aaa), (vvv). Along a similar vein, Biggs' complaints regarding Wallis' use of social media to discuss city water issues, were not matters of public concern. While the safety of a city's water supply is certainly a matter of public concern, Biggs' alleged speech only pertained to Wallis' use of social media. ECF 40, ¶7(ii), (uu).F&R 14, ECF No. 56.
Biggs' call to the Sheriff's office and subsequent report of missing city recording devices appear to be related to the ongoing interpersonal dispute between Biggs and Wallis, and thus, not a matter of public concern. While a theft from city hall of city equipment by elected city officials would likely be a matter of public concern, Plaintiff [Biggs] does not allege that is what happened; and more importantly for First Amendment retaliation analysis, she did not say that this was what happened. ECF 40, 7¶(yyy), (aaaa); ¶ 8(wwwwwww). Accordingly, Biggs' statements that the city recorders were missing were not a matter of public concern.
In the SAC, in addition to the allegations made in the FAC, Biggs now alleges that her complaints were matters of public concern, and that she "reasonably believed" that the conduct was violations of discrimination and whistleblower statutes, violation of the City charter, gross waste of funds, mismanagement, abuse of authority, official misconduct, and violation of ORS 294.100. SAC ¶¶ 7(f)-(h), (m), (u), (v), (dd), (w), (bb), (mm), (nn), (ss), (bbbb), (ffff), (ww), (zz), (aaa), (vvv), (ii), (uu), ECF No. 74.
"The public concern inquiry is purely a question of law[.]" Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). In the SAC, Biggs merely added a legal conclusion that her complaints were matters of public concern supported only by her own belief without new factual allegations. See Ashcroft, 556 U.S. at 678 (a court must distinguish factual contentions - which alleged behavior on the part of the defendant ... - and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements."). As the Court has previously found, such statements are individual personnel issues and not matters of public concern.
b. Biggs' speech that did address matters of public concern
The Court previously found that Biggs' speech pertaining to public spending, waste, fiscal responsibility, and compliance with state laws and the City charter - primarily concerning fiscal matters - falls within the matters of public concern. F&R 15, ECF No. 56. However, the Court found that Biggs made the statements in her official capacity as City Recorder and City Treasurer. Id. at 16. Thus, these statements "are not afforded First Amendment protection." Id.
The question before the Court is whether Biggs sufficiently alleges in the SAC that she spoke about these matters of public concern as a private citizen rather than in her official capacity.
In the SAC, where Biggs alleges that she complained about Wallis' unauthorized spending of attorney fees, she also alleges: "While Biggs initially had job duties with enforcing the charter, those job duties were removed from her." SAC ¶ 7(e), ECF No. 74. Biggs further alleges that her challenge to Walls' Request for Proposal and advertising for a new city attorney was outside her job duties. Id. ¶ 7(q). Similarly, Biggs alleges that her complaints about other fiscal-related matters - Schroeder's unauthorized bills or over billing, Wallis' unauthorized spending of City funds, waiving fees for water usage for the Fire Department, City Council's violation of state budget laws by failing to verify the availability of funds before approving expenditures - were unrelated to or outside her job duties. Id. ¶¶ 7(gg), (jj), (tt), (vv), (ddd)-(www).
Accepting the allegations as true that Biggs did not have the related job duties when she spoke about the matters of public concern, Biggs did not speak in her official capacity but as a private citizen. Therefore, Biggs has stated a § 1983 claim based on the statements that the Court previously found to be matters of public concern. The Court should deny Defendants' motion as to the § 1983 claims. II. State Law Claims
The Court previously declined to exercise supplemental jurisdiction over Biggs' state law claims because of the dismissal of her federal law claims. F&R 23-24, ECF No. 56; see also Order, ECF No. 67.
1. Claim I - ORS 659A.203 and ORS 659A.230 Against the City
Biggs alleges two counts in Claim I. SAC ¶¶ 9-27, ECF No. 74. Count I alleges that the City violated Oregon Revised Statute 659A.203 ("ORS 659A.203"). Id. ¶¶ 9-18. Count II alleges that the City violated Oregon Revised Statute 659A.230 ("ORS 659A.230"). Id. ¶ 19-27. The Court addresses Defendants' motion against each count in turn.
a. Count I: ORS 659A.203 Violation
Under Oregon Revised Statute 659A.203, it is unlawful for a public employer to:
Prohibit any employee from disclosing, or take or threaten to take disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of:
Or. Rev. Stat. 659A.203(1)(b). It is also unlawful for a public employer to "[d]iscourage, restrain, dissuade, coerce, prevent or otherwise interfere with disclosure or discussions described in this section." Or. Rev. Stat. 659A.203(1)(d). "A public or nonprofit employer may not invoke or impose any disciplinary action against an employee for employee activity described in subsection (1) of this section or ORS 659A.212." Or. Rev. Stat. 659A.203(2).(A) A violation of any federal, state or local law, rule or regulation by the public or nonprofit employer;
(B) Mismanagement, gross waste of funds or abuse of authority or substantial and specific danger to public health and safety resulting from action of the public or nonprofit employer ...
Defendants first move to dismiss Biggs' claim of ORS 659A.203 violation for her "whistleblowing complaints and disclosures" made prior to March 23, 2017, one year before Biggs' filing of the original complaint. Defs.' Mot. Dismiss 10-11, ECF No. 78. Under Oregon law, a civil action alleging an unlawful employment practice "must be commenced within one year after the occurrence of the unlawful employment practice[.]" Or. Rev. Stat. 659A.875(a)(1). Because Biggs' complaints and disclosures are not "employment practices," Defendants' application of the statute of limitations is misplaced. Since Biggs' alleged unlawful employment practices - harassment and retaliation - occurred on or after March 23, 2017, the statute of limitations did not run. SAC ¶¶ 8(wwwwww)-(nnnnnnnnn), ECF No. 74.
Defendants next challenge Biggs' claim of ORS 659A.203 violation on the grounds that Biggs' disclosures do not constitute protected activities. Defs.' Mot. Dismiss 11-12, ECF No. 78. Defendants contend that Biggs as the City Treasurer "was authorized and required to make the disclosures regarding her concerns about City expenditures, fiscal responsibility, Wallis' spending of City funds, the City Council's spending decisions, and Schroeder's attorney bills. Id. at 11 (emphasis supplied). Defendants further contend that the remainder of Biggs' disclosures fall within Biggs' job duties as the City Treasurer and City Recorder. Id. at 12. Defendants argue that a whistleblower complaint cannot be comprised of "an employee's expression of views or rendering of advice about alternative course of action in the ordinary course of the employee's job." Id. at 11 (citing Folz v. State, 287 Or. App. 667 (2017)).
As cited by Defendants, Oregon Court of Appeals in Folz affirmed the lower court's summary judgment by stating that "plaintiff had not engaged in protected 'whistleblowing' activity by merely performing her job responsibilities." Folz, 287 Or. App. at 671. However, the Folz court "rejected the defendant's argument that the plaintiff could not have been engaged [sic] in 'protected activity' because she was merely doing her job by reporting problems[.]" Id. at 675. Rather, the court dismissed plaintiff Folz's claims because she "failed to produce any evidence that she ever made a report that any violation or wrongdoing had occurred." Id. Defendants' reliance on Folz as support for their argument is unfounded.
Unlike the plaintiff in Folz who failed to produce evidence of her reporting of violations or wrongdoing at the summary judgment phase, Biggs alleges that she reported violations and wrongdoing by Defendants. SAC ¶¶ 8(wwwwww)-(nnnnnnnnn), ECF No. 74. Following the holding in Folz, merely because Biggs was doing her job as the City Treasurer and City Recorder by disclosing violations and wrongdoings does not mean such disclosure is not protected activity. Folz, 287 Or. App. at 674-75. Therefore, Defendants' argument based on Biggs' job duties is unavailing.
As to Biggs' several other disclosures, Defendants assert that they are mere "personal grievances not protected by ORS 659A.203 because they do not implicate violations of the law, mismanagement, waste of funds, abuse of authority, or danger to public health and safety." Defs.' Mot. Dismiss 12, ECF No. 78. Specifically, Defendants list the following disclosures as personal grievances: "call[ing] Councilor Waldo stating that she could not continue to work in an environment of constant harassment and needed to take time off of work," and filing a complaint with Councilor Waldo complaining "that Wallis made statements to the media about [her], which were then published that were both untrue and misleading." Id. (citing SAC ¶¶ 7(nnn), (rrr), (vvv)). Biggs does not respond to this argument. See Pl.'s Resp. 15-18, ECF No. 88.
The Court previously has found that these complaints are individual personnel issues and are not matters of public concern. F&R 14, ECF No. 56 (citing e.g., FAC ¶¶ 7(h), (bbbb), (ffff)). Accordingly, these complaints of individual personnel issues are not entitled to protection under ORS 659A.203, which protects disclosures of a violation of laws, mismanagement, gross waste of funds or abuse of authority or substantial and specific danger to public health and safety as a result of the employer's action. Or. Rev. Stat. 659A.203(1)(b).
SAC ¶ 7(rrr) is substantially same as FAC ¶ 7(bbbb) and SAC ¶ 7(vvv) is substantially same as FAC ¶ 7(ffff)). See Ex. A. Biggs' complaint in SAC ¶ 7(nnn) is the same complaint as alleged in FAC ¶ 7(h).
Nonetheless, the Court should deny Defendants' motion against Count I of Claim I because Biggs has stated a claim based on the fiscal-related disclosures.
b. Count II: ORS 659A.230 Violation
To establish a prima facie case of retaliation under Oregon Revised Statutes § 659A.230, the plaintiff must show (1) she was engaging in a protected activity, (2) she suffered an adverse employment decision, and (3) there was a causal link between the protected activity and the adverse employment decision. Huitt v. Optum Health Servs., 216 F. Supp. 3d 1179, 1190 (D. Or. 2016). Defendants raise multiple arguments challenging Count II, one of which contends that Biggs fails to allege a causal link between her contact with the Marion County Sheriff's Office in July 2017 and her termination in January 2018. Defs.' Mot. Dismiss 15, ECF 78. Biggs responds that "there are adverse employment actions alleged in ECF [No.] 74, ¶[]8 in close proximity to her reports." Pl.'s Resp. 19, ECF No. 88. Other than this conclusive statement, Biggs neither makes any substantive arguments nor cites any authority to support her conclusion.
The Supreme Court has held that "[w]hen there is mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality ... the temporal proximity must be 'very close.'" Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S. Ct. 1508, 1511, 149 L. Ed. 2d 509 (2001) (citing O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (C.A.10 2001)). Courts have held that a three-month period and a four-month period were too far apart in temporal proximity to support a claim for tortious discharge. Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (C.A.10 1997) (3-month period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (C.A.7 1992) (4-month period insufficient)). Here, Biggs alleges that her termination in January 2018 occurred about five months after her July 2017 report of a break-in and theft in the City office. SAC ¶ 7(ppp), ¶ 8(kkkkkkkkk)-(nnnnnnnnn), ECF No. 74. Biggs does not allege any other adverse employment action against her during the 5-month interim. As alleged, the temporal proximity of Biggs' report and her termination, standing by itself, does not sufficiently raise the inference that her report was the reason for the adverse action.
Consequently, the Court should grant Defendants' motion against Count II of Claim I. The Court should also dismiss Count II of Claim I with prejudice because it would be futile to amend.
2. Claim IV - ORS 659AA.030(1)(g) Against Wallis and Schroeder
Claim IV alleges that Wallis and Schroeder aided, abetted, incited, compelled, and coerced the City into committing the violations alleged in Claim I: violations of ORS 659A.203 and ORS 659A.230. SAC ¶ 40, ECF No. 74. Defendants' move to dismiss Claim IV based on the same arguments made against Claim I. Defs.' Mot. Dismiss 18-19, ECF No. 78. Biggs similarly relies on her counter arguments made under Claim I. Pl.'s Resp. 19-20, ECF No. 88.
Consistent with its analysis under Claim I, the Court should deny Defendants' motion against Claim IV as to the violation of ORS 659A.203. Supra, Discussion II.1.
3. Claims V and VI - IIED
In Claim V and Claim VI, Biggs alleges IIED against the City and Wallis, respectively. SAC ¶¶ 47-54, ECF No. 74. In order to sustain a claim for IIED, a plaintiff must allege sufficient facts to demonstrate:
(1) that defendants intended to cause plaintiff severe emotional distress or knew with substantial certainty that their conduct would cause such distress; (2) that defendants engaged in outrageous conduct, i.e., conduct extraordinarily beyond the bounds of socially tolerable behavior; and (3) that defendants' conduct in fact caused plaintiff severe emotional distress.House v. Hicks, 218 Or. App. 348, 357-58,179 P.3d 730, rev. den., 345 Or. 381, 195 P.3d 911 (2008). To determine whether the alleged conduct plausibly falls beyond the bounds of socially tolerable norms, the court must evaluate the totality of the circumstances, including whether there is any special relationship between the parties, any special characteristics or vulnerabilities of the plaintiff that were known to the defendants, and the circumstances under which the conduct occurred. Schoen v. Freightliner LLC, 224 Or. App. 613, 627 (2008). While conduct that may be characterized as "rude, boorish, tyrannical, churlish and mean" will not support liability for IIED, the court may consider the cumulative effect of such behavior and the setting in which it occurred. Id. at 627; see Barrington ex rel. Barrington v. Sandberg, 164 Or. App. 292, 296, 991 P.2d 1071, 1073 (1999).
In reviewing Biggs' IIED claims, the Court finds its prior analysis of plaintiff Koch's IIED claims instructive. The Court found that Koch alleged sufficient facts to state plausible IIED claims against the City and Wallis. F&R 38, ECF No. 56. The Court explained:
In reaching this decision, the Court notes that there was a special employer-employee relationship between Koch and the City. While Wallis was not technically Koch's supervisor, he was the mayor and used his position of authority to harass and bully Koch. City Council, with full knowledge of the conduct and its impact on Koch, repeatedly failed to intervene. The Court also notes that Wallis continued to bully Koch after Koch was on leave due to stress. Indeed, the nature of the subsequent public disparagement of Koch capitalized on Koch's emotional vulnerabilities, of which Wallis and City Council were fully aware. The public nature of Wallis' conduct combined with his efforts to capitalize on Koch's vulnerable emotional state by publicly criticizing Koch for his condition, transforms conduct that might otherwise be characterized as petty, boorish, and mean, to an actionable claim.Id. (emphasis in original) (citations omitted).
As Koch alleged, Biggs also alleges that Wallis used his authority as city mayor to harass and bully Biggs. See e.g., SAC ¶¶ 7(c), (f), (h), (m), (n), ECF No. 74. The Court finds that there is a special relationship between Wallis and Biggs. See F&R 38, ECF No. 56.
Similar to Koch's allegations, Biggs alleges that City Council was fully aware of the conduct and impact on Biggs but repeatedly failed to intervene. See e.g., SAC ¶¶ 7(k), (r), (s), (u), (x), ECF No. 74. Furthermore, Biggs alleges that Wallis publicly disparaged her. See e.g., id. ¶¶ 7(mm), (rrr), ¶ 8(a), (zz), (ffff), (ssss). Wallis published his analysis of Biggs' wage and allowed derogatory comments on the public page. Id. ¶¶ 8(zz), (bbb). As a result, Biggs experienced a panic attack and needed medical care. Id. ¶¶ 8(zz), (ddd).
Biggs also alleges that other council members and employees of the City engaged in sexual harassment against her. See e.g., SAC ¶ 7(l), (m), (w), 8(aaa). For example, Councilor Bernard came to Biggs' office without saying anything but "pulled [Biggs'] hair back off her shoulder and kissed her twice on the cheek." Id. ¶ 8(aaa). During a City Council meeting, Biggs alleges that Wallis allowed the public to make disparaging comments about her and yell at her as the result of Wallis' disparaging comments of her. Id. ¶ 8(iiii). At the same Council meeting, Councilor Bernard kissed Biggs on her cheek in front of the Council and the public, but the City Council took no action to stop Councilor Bernard's conduct. Id. ¶ 8(jjjj).
The Court also finds that the repeated public criticizing and kissing of Biggs are efforts to prey on Biggs' gender, which transform conduct that might otherwise be characterized as petty boorish, and mean, to an actional claim. The Court therefore should deny Defendants' motion against Claims V and VI.
4. Claim VII - Defamation Against Wallis and Schroeder
Defendants challenge the defamation claim on two grounds. Defs.' Mot. Dismiss 26, ECF No. 78. First, Biggs fails to state sufficient factual allegations. Id. Second, Schroeder and Wallis were privileged. Id. at 35. Consistent with the Court's prior F&R, the Court declines to address Defendants' affirmative defense of privilege at this stage in the litigation. F&R 41, ECF No. 56 (citing Elizabeth Retail Properties LLC v. Key Bank Nat'l Ass'n, 83 F. Supp. 3d 972, 996 (D. Or. 2015) (noting affirmative defenses are fact dependent and require a finder of fact to evaluate evidence and that there is no "evidence" to evaluate at the pleading stage)). The Court only addresses the issue whether Biggs has sufficiently stated a defamation claim.
The basic elements of a claim for defamation are (1) a defamatory statement made by the defendant about the plaintiff and (2) published to a third party. Nuemann v. Liles, 358 Or. 706, 711 (2016). A statement is defamatory if it "would subject the subject to hatred, contempt, or ridicule, or tend to diminish the esteem, respect, good will or confidence in which the plaintiff is held or to excite adverse, derogatory or unpleasant feelings or opinions against the plaintiff." Id. (internal quotation marks omitted) (quoting Farnsworth v. Hyde, 266 Or. 236, 238, 512 P.2d 1003 (1973). "It is for the court to determine whether an allegedly defamatory statement is capable of a defamatory meaning and for the trier of fact to determine whether the statement was actually defamatory." Lansford v. Georgetown Manor, Inc., 192 Or. App. 261, 269-70, 84 P.3d 1105, 1111, opinion adhered to as modified on reconsideration, 193 Or. App. 59, 88 P.3d 305 (2004) (citation omitted).
Defendants identify thirteen alleged statements within the one-year statute of limitations of Or. Rev. Stat. § 12.120(2) - one made by Schroeder and twelve by Wallis - that could support Biggs' defamation claim. Defs.' Mot. Dismiss 27-35, ECF No. 78.
Biggs does not object to the argument of a one-year statute of limitations. See Pl.'s Resp. 27, ECF No. 88.
a. Statement by Schroeder
Biggs alleges:
On or about June 8, 2017, at the City Council meeting, in response to Biggs stating Schroeder charged St. Paul for work her office had not completed, Schroeder shouted across the room and accused Biggs of misplacing the work, even though Schroeder's office staff then confirmed that the work had not been completed[.]SAC ¶ 8(jjjjjjj), ECF No. 74.
Defendants contend that the statement that Biggs misplaced Schroeder's work is not defamatory, because Schroeder shouted at Biggs in the heat of the moment and the statement did not subject Biggs to contempt or ridicule. Defs.' Mot. Dismiss 28, ECF No. 78. Biggs does not respond to this argument. See Pl.'s Resp. 22-29, ECF No. 88.
As Biggs alleges, Schroeder shouted at Biggs "in response to Biggs stating Schroeder charged [the City] for work her office had not completed[.]" As alleged, the Court finds that Schroeder's statement was an instant reaction to Biggs' statement, not to subject Biggs to hatred, contempt, or ridicule, nor to diminish Biggs' esteem, respect, good will or confidence. See Nuemann, 358 Or. at 711. Schroeder's statement was not defamatory.
b. Statements by Wallis
Defendants identify the following statements by Wallis. Defs.' Mot. Dismiss 28-34, ECF No. 78.
(1). "On or about June 14, 2017, Wallis went on the record in a newspaper article and stated that the reason the city was hiring a city manager was due to personnel issues, referring to Biggs' legal claims[.]" SAC ¶ 8(ppppppp), ECF No. 74.
(2). "On or about June 30, 2017, Wallis posted on his 'Community' Facebook page that Biggs was out on sick leave[.]" Id. ¶ 8(wwwwwww).
(3). "On or about July 4, 2017, Wallis posted on his "Community" Facebook page regarding Biggs calling in sick[.]" Id. ¶ 8(yyyyyyy).
(4). "On or about July 7, 2017, Wallis posted on his "Community" Facebook page the city office was closed, because Biggs was gone due to personnel issues[.]" Id. ¶ 8(zzzzzzz).
(5). "On or about July 7, 2017, there was a newspaper article in both the Newberg Graphic and Woodburn Independent in which Wallis made negative statements about Biggs calling in sick during the most important event of the year. Biggs' leave was authorized as workers' compensation leave[.]" Id. ¶ 8(aaaaaaaa).
(6). "On or about July 13, 2017, upon learning from Councilor Waldo that Biggs filed a complaint against him, Wallis posted the defamatory newspaper article on his 'Community' Facebook page[.]" Id. ¶ 8(bbbbbbbb).
(7). "On or about July 20, 2017, at the City Council meeting, Wallis accused Biggs of not doing her job, not paying the bills, not completing the city auditor request, and failing to timely file necessary forms. The forms were not filed by Biggs during a time that she was on worker's compensation leave[.]" Id. ¶ 8(cccccccc).
(8). "On or about July 21, 2017, Wallis was quoted in the Newberg Graphic stating that Biggs failed to file necessary forms with the state, checks were not mailed out, and accounts were past due. These issues arose while Biggs was on worker's compensation leave[.]" Id. ¶ 8(dddddddd).
(9). "On or about July 26, 2017, Wallis posted on his "Community" Facebook page that the digital recorder went missing before July 3, 2017, that the locks were not drilled out, and staff was not locked out. The information posted was false and implied that Koch or Biggs stole the recorder[.]" Id. ¶ 8(ffffffff).
(10). "On or about July 28, 2017, Wallis was quoted in a newspaper article stating that Biggs had been out on medical leave, was not doing her job properly, and blamed St. Paul's dysfunction on staff[.]" Id. ¶ 8(gggggggg).
(11). "On or about August 2, 2017, Wallis was again quoted in a newspaper article placing Biggs in a false light[.]" Id. ¶ 8(hhhhhhhh).
(12). "On or about October 23, 2017, while Biggs was on worker's compensation leave, Wallis stated in a City Council meeting that Biggs was not performing her job. At the same meeting, Wallis brought up Biggs' wages and falsely stated she was making $6.00 per hour more than she was[.]" Id. ¶ 8(zzzzzzzz).
Notably, Biggs does not allege the following statements to be false: (1), (2), (3), (4), (5), (7), (8), (10), and the first sentence of (12). In statements (7), (8) and the first sentence of (12), while Biggs explains that she was on workers' compensation leave, she still does not allege that it is a false statement that she did not perform her job. Biggs has failed to state a defamation claim based on these statements.
As to statement (6), Biggs refers to the statement as "the defamatory newspaper article" but does not allege what the statement was. Thus, Biggs has failed to state a defamation claim based on statement (6). See Rice v. Comtek Mfg. of Oregon, Inc., 766 F. Supp. 1539, 1541 (D. Or. 1990) ("An allegation of defamation is subject to dismissal if it fails to set out the actual words published.").
In statement (9), Biggs alleges in the second sentence that "the information posted [on Wallis' 'Community' Facebook page] was false and 'implied' that Koch or Biggs stole the recorder[.]" SAC ¶ 8(ffffffff), ECF No. 74. However, the "information" as alleged in the first sentence does not reference Biggs. Id. Despite Biggs' conclusion that Wallis' statement referred to her, she has failed to allege facts that the statement is about her. Therefore, Biggs has failed to state a defamation claim based on statement (9).
In the second sentence of statement (12), Biggs alleges that Wallis falsely stated the amount of her hourly wage. SAC ¶ 8(zzzzzzzz), ECF No. 74. The Court finds that the mere difference in the amount of Biggs' wage is insufficient to state a defamation claim. See Pippert v. Niece, 518 F. Supp. 2d 1265, 1273 (D. Or. 2007) ("This court is unconvinced that the mere difference in amount of some of the charges is sufficient to state a claim for defamation.").
For the above reasons, the Court should grant Defendants' motion as to the defamation claim.
5. Claim VIII - Public Disclosure of Private Facts Against Wallis
Under Oregon law, public disclosure of private facts requires a showing of four elements:
(1) the plaintiff had private information which would have remained private; (2) the defendant made that private information known to the public; (3) the publication of that information would be offensive to a reasonable person; and (4) the tortfeasor's conduct was wrongful apart from inflicting emotional distress on the plaintiff.Hedger v. Asbury Auto. Oregon, LLC, No. 05-1576-MO, 2006 WL 3345154 at *3 (D. Or. November 15, 2006); Marleau v. Truck Ins. Exch., 333 Or. 82, 93, 37 P.3d 148, 154 (2001). In addition, a plaintiff must establish that the defendant had a duty not to reveal private or confidential information. Anderson v. Fisher Broad. Cos., Inc., 300 Or. 452, 458 (1986); Humphers v. First Interstate Bank of Oregon, 298 Or. 706, 717 (1985); see FCM v. Washington Mut. Bank, No. 07-1298 AS, 2007 WL 4565237, at *3 (D. Or. Dec. 21, 2007).
Defendants list the following seven alleged statements that could possibly support Biggs' claim for public disclosure of private facts. Defs.' Mot. Dismiss 42, ECF No. 78.
(1) "On or about June 30, 2017, Wallis posted on his 'Community' Facebook page that Biggs was out on sick leave[.]" SAC ¶ 8(wwwwwww), ECF No. 74.
(2). "On or about July 4, 2017, Wallis posted on his "Community" Facebook page regarding Biggs calling in sick[.]" Id. ¶ 8(yyyyyyy).
(3). "On or about July 7, 2017, Wallis posted on his "Community" Facebook page the city office was closed, because Biggs was gone due to personnel issues[.]" Id. ¶ 8(zzzzzzz).
(4). "On or about July 7, 2017, there was a newspaper article in both the Newberg Graphic and Woodburn Independent in which Wallis made negative statements about Biggs calling in sick during the most important event of the year. Biggs' leave was authorized as workers' compensation leave[.]" Id. ¶ 8(aaaaaaaa).
(5). "On or about July 13, 2017, upon learning from Councilor Waldo that Biggs filed a complaint against him, Wallis posted the defamatory newspaper article on his 'Community' Facebook page[.]" Id. ¶ 8(bbbbbbbb).
(6) "On or about July 28, 2017, Wallis was quoted in a newspaper article stating that Biggs had been out on medical leave, was not doing her job properly, and blamed St. Paul's dysfunction on staff[.]" Id. ¶ 8(gggggggg).
(7) "On or about October 23, 2017, while Biggs was on worker's compensation leave, Wallis stated in a City Council meeting that Biggs was not performing her job. At the same meeting, Wallis brought up Biggs' wages and falsely stated she was making $6.00 per hour more than she was[.]" Id. ¶ 8(zzzzzzzz).
Biggs alleges that "Wallis had a duty not to disclose [her] confidential medical information and workers' compensation information." SAC ¶ 63, ECF No. 74. Defendants contend that this allegation lacks specificity to support the alleged duty. Defs.' Mot. Dismiss 43, ECF No. 78. On the requirement of a duty not to disclose, the Oregon Supreme Court explained:
It requires more than custom to impose legal restraints on "the right to speak, write, or print freely on any subject whatever." Or. Const., Art. I, § 8. Tort liability, of course, may be a remedy for "injury to person, property, or reputation," Or. Const., Art. I, § 10, even by speech. But a legal duty not to speak, unless voluntarily assumed in entering the relationship, will not be imposed by courts or jurors in the name of custom or reasonable expectations. Tort liability is the consequence of a nonconsensual duty of silence, not its source.Humphers, 298 Or. at 718 (case citation omitted).
Biggs makes a conclusory allegation that Wallis has a "duty not to disclose" but does not state factual allegations to support this duty. See SAC ¶¶ 63, ECF No. 74. Therefore, Biggs has failed to state a claim for relief that is plausible on its face. See Humphers, 298 Or. at 718. The Court should grant Defendants' motion against Claim VIII - public disclosure of private facts.
Biggs counters that she could allege that "Wallis disclosed medical information about Biggs that would be protected by HIPPAA, ORS 192.553, and possibly other statutes." Pl.'s Resp. 29, ECF No. 88. Therefore, the Court should dismiss the claim of public disclosure of private information without prejudice.
6. Claim IX - False Light Against Wallis
"The gravamen of a claim for placing a person in a false light involves invasion of privacy." Morrow v. II Morrows, Inc., 139 Or. App. 212, 220 (1996). While "[a] defamation action is primarily concerned with damage to reputation, . . . a claim of false light addresses the plaintiff's interest in being left alone and compensates for mental and emotional suffering resulting from the invasion." Magenis v. Fisher Broad., Inc., 103 Or. App. 555, 558 (1990).
To state a claim of false light, a plaintiff must allege that:
(1) the defendant gave publicity to a matter concerning the plaintiff that places the plaintiff before the public in a false light; (2) the false light in which the plaintiff was placed would be highly offensive to a reasonable person; and (3) the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.Robillard v. Opal Labs, Inc., 337 F. Supp. 3d 962, 971 (D. Or. 2018) (citing Marleau, 333 Or. at 92). A false light claim "requires that the matter be both false (or that it create[s] a false impression) and publicized." Id. (emphasis in original). The publication element differs from publication in defamation cases in that, for false light claim, "the matter must be published to the public generally or to a large number of persons." Morrow, 139 Or. App. at 220. A defendant may be liable for both defamation and false light based upon the same conduct. Magenis, 103 Or. App. at 558; Slover v. Oregon State Bd. of Clinical Soc. Workers, 144 Or. App. 565, 570, 927 P.2d 1098, 1101 (1996).
"[W]hen a claim characterized as false light alleges facts that also constitute a claim for defamation, the claim must be filed within the period for bringing a defamation claim." Magenis, 103 Or. App. at 560; Logan v. West Coast Benson Hotel, 981 F. Supp. 1301 (D. Or. 1997); Or. Rev. Stat. § 12.110(1). The Court finds Biggs' false light and defamation claims are intertwined. Therefore, the one-year statute of limitations for defamation claim applies. Or. Rev. Stat. § 12.120(2). For the false light claim to be actionable, the allegations must have occurred on or after March 23, 2017, one year before the commencement of this action.
Three of the alleged statements challenged by Defendants fall within the statute of limitations and are analyzed above under the defamation claim: statements (9), (11), and (12). Defs.' Mot. Dismiss 46, ECF No. 78; supra Discussion II.4.b. As discussed above, the Court found that in statement (9) Biggs fails to allege that the statement was about her. Thus, Biggs fails to state a false light claim based on statement (9) for the same reason. Because Biggs does not allege in statement (11) what the statement was, she consequentially fails to allege facts that statement (11) was "highly offensive." As to statement (12) which includes two sentences, Biggs fails to state a false light claim based on the first sentence because it does not allege that the statement was false. Similar to the finding above that the mere difference in the amount of Biggs' wage is insufficient to state a defamation claim, the Court finds that a reasonable person would not find a statement of mere incorrect wage amount to be highly offensive.
Biggs' response includes a list of additional allegations that she considers to be actionable. Pl.'s Resp. 30-33, ECF No. 88. Only ten of them in Biggs' list occurred on or after March 23, 2017 and fall within the statute of limitations, which are numbers 22-28, 30, 32, 34. Id. at 32-33. However, Biggs fails to allege that the statements were false in numbers 22-28, 30 and 32. They cannot be the factual basis for her false light claim. As to number 34 in Biggs' list, Biggs alleges:
On or about November 21, 2017, Wallis sent Biggs a letter, stating in pertinent part, "Given CIS' exhaustion of your time loss benefits under your worker's compensation claim, the City is writing to notify you that as of November 13, 2017, any absence(s) from work will be charged to any accrued sick leave, and if/when that leave is exhausted then to accrued vacation leave." Wallis misstated Biggs' sick leave and vacation leave in the letter. He then stated that her sick leave was capped at 160 hours per city policy, and he was going to bring up her excess accrual to the city council for discussion.SAC ¶ 8(fffffffff), ECF No. 74. The Court finds that a reasonable person would not find the misstated amount of sick leave and vacation leave to be "highly offensive."
In summary, Biggs has failed to state a false light claim. The Court should grant Defendants' motion as to Claim IX.
7. Claim X - ORS 659A.030(1)(f) Against the City
Biggs alleges that the City retaliated against her after she made complaints of sex discrimination. SAC ¶¶ 68, ECF No. 74. Under Oregon Revised Statute 659A.030(1)(f), it an unlawful employment practice:
For any person to discharge, expel or otherwise discriminate against any other person because that other person has opposed any unlawful practice, or because that other person has filed a complaint, testified or assisted in any proceeding under this chapter or has attempted to do so.To establish a prima facie claim, a plaintiff must allege sufficient facts to show that he or she (1) engaged in the protected activity of complaining of discrimination; (2) was subjected to disparate treatment; and (3) the disparate treatment was because of the complaint of discrimination. See Portland State Univ. Ch. Of Amer. Ass'n of Univ. Profs. v. Portland State Univ., 352 Or. 697, 709 (2012) (en banc); Medina v. State, 278 Or. App. 579, 588 (2016). A plaintiff was subjected to disparate treatment when he suffered a materially adverse employment decision. Meyer v. State, 292 Or. App. 647, 679 (2018). The parties agree that ORS 659A.030 is subject to a one-year statute of limitations period. Or. Rev. Stat. § 659A.875.
Defendants argue that there is no causal link pled by Biggs connecting her termination and her opposition to the unlawful employment practices of sex discrimination and harassment. Mot. Dismiss 50, ECF No 78. Biggs alleges in the SAC that she filed a grievance with the City in March 2015 alleging sexual harassment and provided a tort claim notice to the City in December 2016 alleging discrimination. Id. at 49 (citing SAC ¶¶ 7(j), (qq), ECF No. 74). Biggs also alleges that the City retaliated against her by terminating her in January 2018. SAC ¶ 8(lllllllll), ECF No. 74.
The Supreme Court has held that twenty months between the protected activity and the adverse employment action suggests "no causality at all." Breeden, 532 U.S. at 273-74; see also, Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (18-month lapse "is simply too long"); Vimegnon v. Oregon Health and Science University, No. 3:16-CV-02304-HZ, 2017 WL 3429394, *7 (D. Or. Aug. 8, 2017) (holding that "[a]" time lag of two years is too long to raise an inference of causation."). Therefore, the two-year and three-year periods alleged by Biggs are too long to raise an inference of causation. Consequently, the Court should grant Defendants' motion as to Claim X. Because it would be futile to amend, the Court should dismiss Claim X with prejudice.
RECOMMENDATION
Defendant's Motion to Dismiss Plaintiff Biggs' Second Amended Complaint (ECF No. 78) is GRANTED in part as to Count II of Claim I (dismissed with prejudice), Claims VII, VIII, IX, and X (dismissed with prejudice); and DENIED in part as to Count I of Claim I, Claims II, III, IV, V and VI. The Court should grant Biggs leave to amend Claims VII, VIII, IX in a manner consistent with the Court's findings and within thirty (30) days of the Court's decision.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
DATED this 5th day of May 2020.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI
United States Magistrate Judge