Summary
finding Eastern Oregon Correctional Institution is a part of the ODOC, which is an "arm of the State or Oregon"
Summary of this case from Ross v. SheltonOpinion
CV 04-290-HA.
October 7, 2004
ORDER
Plaintiff Walter G. Gauthier brought this employment-related action against the Eastern Oregon Correctional Institution (EOCI). Plaintiff's Complaint contains seven claims for relief: (1) age discrimination under the Age Discrimination in Employment Act (ADEA); (2) age discrimination under O.R.S. 659A.030(1)(a); (3) retaliation for opposing unlawful age discrimination under the ADEA; (4) retaliation for complaining of age discrimination under O.R.S. 659A.030(1)(f); (5) discrimination based on perceived disability under O.R.S. 659A.112(1); (6) discrimination based on perceived disability under the Rehabilitation Act of 1973; and (7) wrongful discharge.
On April 9, 2004, defendant filed a Motion to Dismiss in Part (Doc. #9), arguing that six of plaintiff's claims should be dismissed as barred by state sovereign immunity. Defendant argues that the EOCI is a subdivision of the State of Oregon Department of Corrections (DOC), and, therefore, that the Eleventh Amendment bars all of plaintiff's claims except for claim six. Plaintiff filed a Motion to Strike (Doc. #14) three affidavits that defendant submitted with its reply brief — as well as those portions of defendant's argument that are based on the affidavits — because they impermissibly raise new matters. Alternatively, plaintiff requested the opportunity to submit a sur-reply brief. Defendant filed a Motion for Attorney Fees and Costs for Unreasonable Enlargement of the Proceeding (Doc. #17). These motions are currently before the court.
BACKGROUND
On March 31, 2003, plaintiff was hired to work as a corrections officer in the EOCI. He was seventy-two years old at the time. Plaintiff alleges that during the course of his employment he heard from another employee that plaintiff would be discharged because of his age. Plaintiff contends that he complained about this to his supervisor. Plaintiff also alleges that defendant erroneously regarded plaintiff as suffering from a physical or mental impairment.
On May 2, 2003, plaintiff was discharged from his position with the EOCI. The purported reason for his discharge was that he failed to demonstrate competence and/or fitness for his position. Plaintiff contends that this reason is pretextual, that his job performance was as good or better than that of younger employees who were not discharged, and that plaintiff was discharged because of his age, his complaint of age discrimination, and defendant's erroneous perception that he was a disabled person.
PROCEDURAL MATTERS
Before considering the arguments advanced by defendant in its Motion to Dismiss, the court must resolve issues raised by plaintiff's Motion to Strike and defendant's Motion for Attorney Fees and Costs.
1. Plaintiff's Motion to Strike
Plaintiff moves to strike three affidavits — and the arguments based on them — that defendant submitted with its reply brief. Plaintiff argues that these affidavits are non-responsive and impermissibly introduce new matters. Plaintiff argues in the alternative that the court allow him to file a sur-reply addressing those matters he considers to be newly raised.
In his affidavit, Mitchell S. Morrow (Morrow), Deputy Director of the DOC, states that the EOCI is owned and operated by the DOC, that plaintiff was employed by the DOC, that the statutes plaintiff relies upon do not reflect the actual structure of the DOC, and that the State of Oregon has never entered into any agreement with a local jurisdiction to convert part of a state correctional facility into a regional facility. See Aff. of Mitchell S. Morrow in Supp. of Def.'s Mot. to Dismiss. These statements respond to plaintiff's argument, raised in his opposition to the Motion to Dismiss, that O.R.S. 169.620, 169.630, 169.640, and 169.673 indicate that the EOCI is a regional correctional facility. The court finds that defendant's statements are responsive to plaintiff's arguments and, therefore, are not new matters.
Amy K. Klare, the administrator of the Civil Rights Division of the Oregon Bureau of Labor and Industries (BOLI), described in her affidavit the relationship between BOLI and the U.S. Equal Employment Opportunity Commission (EEOC), as well as the procedures the two organizations follow in interacting with each other. See Aff. of Amy K. Klare in Supp. of Def.'s Mot. to Dismiss. These statements respond to plaintiff's argument, stated in his opposition to the Motion to Dismiss, that "the only plausible reason for BOLI to file a charge of discrimination with the EEOC under federal law against [the EOCI] is if [BOLI] concluded that the correctional institution was a regional correctional facility as defined under state law." Pl.'s Mem. in Opp. to Def.'s Mot. to Dismiss. The court finds that defendant's argument that there are other reasons that BOLI would send a copy of plaintiff's charge to the EEOC is responsive to plaintiff's argument and, therefore, not a new matter.
In her affidavit, Patricia Bridge Urquhart, Assistant Attorney General with the State of Oregon Department of Justice (DOJ), states that she is counsel of record for the State of Oregon in this action, that the DOJ represents only agencies, officers, agents and employees acting within the scope of their official duties of the State of Oregon, and that the DOJ does not represent local public bodies. See Aff. of Patricia Bridge Urquhart in Supp. of Def.'s Mot. to Dismiss in Part. Plaintiff asserts in his briefings that his tort claim notice to the Oregon Attorney General was proper because a tort claim notice against a local public body may be served on an attorney designated as general counsel for the local public body. The court finds that defendant's statements are responsive to plaintiff's arguments and, therefore, not new matters. Accordingly, plaintiff's Motion to Strike, or, in the alternative, to file a sur-reply brief, is denied.
2. Defendant's Motion for Attorney Fees and Costs
Defendant argues that it is entitled to an award of attorney fees and costs associated with its Rule 12 challenge because plaintiff's Motion to Strike was spurious, a waste of resources, and unreasonably and vexatiously enlarged this proceeding. "Any attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C.A. § 1927. A district court may impose sanctions under Section 1927 only on a showing of the attorney's subjective bad faith. New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989). "Bad faith is present when an attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent." Estate of Blas v. Winkler, 792 F.2d 858, 860 (9th Cir. 1986) (citations omitted). The court finds that there is no evidence of subjective bad faith on behalf of plaintiff's counsel. Accordingly, defendant's Motion for Attorney Fees and Costs is denied.
DISCUSSION
Defendant moves under Fed.R.Civ.P. 12(b) to dismiss six of plaintiff's claims based on state sovereign immunity. The Eleventh Amendment immunizes states and their agencies from suits by private parties in federal court. See Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669 (1999); Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100 (1984); see also Belanger v. Madera Unified School Dist., 963 F.2d 248, 254 (9th Cir. 1992). The Eleventh Amendment also bars supplemental jurisdiction over state law claims brought against a state in federal court. Pennhurst, 465 U.S. at 121. The Eleventh Amendment does not protect local government bodies. Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391 (1979).
There are three exceptions to the general rule of state sovereign immunity. First, Congress may abrogate state sovereign immunity by acting pursuant to a grant of constitutional authority. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 80 (2000). Second, under Ex parte Young, 209 U.S. 123 (1908), the Eleventh Amendment does not bar a suit against a state official when that suit seeks prospective injunctive relief in order to end a continuing violation of federal law. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 73 (1996). Third, a state may waive its Eleventh Amendment defense if it does so voluntarily and unequivocally. Coll. Sav. Bank, 527 U.S. at 675 (citations omitted).
When determining jurisdiction, the court must distinguish between cases where the jurisdictional issue is separate from the merits of the case and where jurisdiction and substance are intertwined. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). When a jurisdictional issue is separable from the merits of a case, "[n]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. (citations omitted). The party asserting Eleventh Amendment immunity carries the burden of proving its application in a given case. ITSI T.V. Productions, Inc. v. Agric. Ass'n, 3 F.3d 1289, 1291 (9th Cir. 1993) ("[T]hat which is promised by the Eleventh Amendment must be proved by the party that asserts it and would benefit from its acceptance.").
The jurisdictional issue here is whether the EOCI is an arm of the State of Oregon. The court finds that this issue is separate from the substantive issues raised in this action. Therefore, it is properly decided under Fed.R.Civ.P. 12(b)(1).
Defendant argues that the EOCI is a subdivision of the DOC and, therefore, is immune from six of plaintiff's claims. Plaintiff concedes that the DOC operates the EOCI. See Pl.'s Mem. in Opp'n to Def.'s Mot. to Dismiss at 5-6. However, plaintiff argues that the EOCI is, or might be, a regional correctional facility. Plaintiff argues that defendant conceded that the EOCI is not an arm of the state when it stated that the "EOCI may serve as a holding facility for local law enforcement jurisdictions." See Mem. of Law in Supp. of Def.'s Mot. to Dismiss at 2.
Plaintiff also argues that the EOCI is a regional facility because O.R.S. 169.620 and 169.630 indicate that it would be possible for a regional correctional facility to exist and because O.R.S. 169.673 suggests that the EOCI would be converted into a regional correctional facility. Defendant points to a subsequently-enacted statute, O.R.S. 423.475 et seq., that indicates that the state correctional facilities are not tied to regional facilities. This is also supported by Morrow's affidavit, in which he states that the State of Oregon has never entered into an agreement with a local jurisdiction to convert a state correctional facility into a regional facility.
Defendant puts forth extensive evidence establishing that the EOCI is a subdivision of the State of Oregon and that plaintiff knew he was employed by the state. When plaintiff applied for his position at the EOCI, he filled out forms titled "State of Oregon Correctional Officer Security Application" and "Oregon Department of Corrections Request and Authorization to Release Information, Release of Liability and Claims, and Covenant Not to Sue"; plaintiff received several employment-related letters that were printed on DOC letterhead; the words "Oregon State Payroll System" appear at the top of plaintiff's timesheets; and plaintiff was issued checks drawn on the account of the State of Oregon Department of Corrections.
The court concludes that the EOCI is part of the DOC and is an arm of the State of Oregon. Plaintiff's first and third claims are based on the ADEA. In Kimel, 528 U.S. at 91, the Supreme Court held that the ADEA did not validly abrogate states' Eleventh Amendment immunity from suit by private individuals. Plaintiff's second, fourth, fifth and seventh claims are based on state laws for which the State of Oregon has not waived its Eleventh Amendment immunity. Accordingly, plaintiff's first, second, third, fourth, fifth, and seventh claims are barred by the Eleventh Amendment and must be dismissed.
CONCLUSION
For the foregoing reasons, plaintiff's Motion to Strike is DENIED (Doc #14), defendant's Motion for Attorney Fees and Costs is DENIED (Doc. #17), and defendant's Motion to Dismiss in Part (Doc. #9) is GRANTED.
IT IS SO ORDERED.