Opinion
Civil No. 04-196-AS.
August 26, 2004
FINDINGS AND RECOMMENDATION
Presently before the court is the motion to dismiss filed by defendant Salem-Keizer School District, 24-J, a municipal corporation (the "District"). The District asserts that this court lacks jurisdiction over it because plaintiff Elizabeth N. Halseth ("Plaintiff") failed to give sufficient notice under the Oregon Tort Claims Act (O.R.S. 30.260, et seq.) (the "Act").
Background
Plaintiff filed this action against the District, as well as George Deines and the United States of America, by and through its Junior ROTC program (the "United States"), for sexual discrimination under 42 U.S.C. § 1983, sexual assault and intentional infliction of emotional distress based on Deines' alleged sexual harassment of Plaintiff. Plaintiff alleges in the first paragraph of her complaint that the action is "for damages resulting from defendant's unlawful sexual discrimination of plaintiff while she was a student at North Salem High School in Salem, Oregon." Complaint, ¶ 1. Plaintiff then alleges that she attended North Salem High School from the "fall of 1998 until March of 2000." Complaint, ¶ 8.Plaintiff alleges that Deines "began a systematic campaign to sexually assault Plaintiff" in 1999, and provides specific allegations of sexual conduct in December 1999 and May 2000. Complaint at ¶¶ 10, 11 and 13, respectively. "Deines continued to sexually touch her and proposition her for sexual favors until December 2001 when plaintiff was forced to leave the Junior ROTC program to escape from defendant Deines." Complaint. ¶ 14.
Plaintiff states that she reported Deines' actions to his supervisor, Lieutenant Dwight Morse, in July 2000. Complaint at ¶ 15. She also alleges that "Deines' actions were also reported to the school principal and administration."
Legal Standard
Under FRCP 12(b)(2), a defendant may move for dismissal on the grounds that the court lacks personal jurisdiction. The plaintiff bears the burden of establishing personal jurisdiction over the defendant. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995); Rano v. Sipa Press, Inc., 987 F.2d 580, 587 (9th Cir. 1993), citing Data Disc, Inc. v. Systems Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). When a court does not conduct an evidentiary hearing, but makes its jurisdictional decision based on pleadings and affidavits, the plaintiff is required merely to make a prima facie showing of personal jurisdiction to defeat a motion to dismiss. Data Disc, 557 F.2d at 1285. That is, plaintiff need only demonstrate facts that if true, would support jurisdiction over the defendant. Ballard, 65 F.3d at 1498.
Discussion
The Act subjects public bodies in Oregon to liability for its torts and those of its officers, employees and agents acting within the scope of their employment. O.R.S. 30.265(1). Under the Act, "the sole cause of action for any tort of officers, employees or agents of a public body acting within the scope of their employment or duties and eligible for representation and indemnification under O.R.S. 30.285 to 30.287 shall be an action against the public body only." Id.
The Act requires that a "notice of claim" be given the public body "within 180 days after the alleged loss or injury." O.R.S. 30.275(2)(b). A plaintiff has the burden of establishing that the requisite notice was given. O.R.S. 30.275(7). The plaintiff may satisfy that burden in four ways:
(a) Formal notice of claim as provided in subsections (4) and (5) of this section;
(b) Actual notice of claim as provided in subsection (6) of this section;
(c) Commencement of an action on the claim by or on behalf of the claimant within the applicable period of time provided in subsection (2) of this section; or
(d) Payment of all or any part of the claim by or on behalf of the public body at any time.
Formal notice requires a written communication that includes a claim for damages, a description of the time, place and circumstances giving rise to the claim and the name and address of the claimant. O.R.S. 30.275(4). The formal notice must be given by mail or personal delivery to a local public body "at its principal administrative office, to any member of the governing body of the public body, or to an attorney designated by the governing body as its general counsel." O.R.S. 30.275(5)(b).
O.R.S. 30.275(6) defines actual notice of a claim to be:
. . . any communication by which any individual to whom notice may be given as provided in subsection (5) of this section or any person responsible for administering claims on behalf of the public body acquires actual knowledge of the time, place, and circumstances giving rise to the claim, where the communication is such that a reasonable person would conclude that a particular person intends to assert a claim against the public body or an officer, employee or agent of the public body. A person responsible for administering tort claims on behalf of a public body is a person who, acting within the scope of the person's responsibility, as an officer, employee or agent of a public body or as an employee or agent of an insurance carrier insuring the public body for risks within the scope of O.R.S. 30.260 or 30.300, engages in investigation, negotiation, adjustments or defense of claims within the scope of O.R.S. 30.260 to 30.300, or in furnishing or accepting forms for claimants to provide claim information, or in supervising any of those activities.
Relying solely on the allegations of the complaint, it is unclear when the last act of sexual harassment occurred. Plaintiff alleges that the unlawful sexual discrimination occurred while she was a student at North Salem and that she attended that school from 1998 until March of 2000. Based on these facts, the last act of discrimination occurred in March 2000. However, Plaintiff then alleges a specific act of harassment in May 2000 with a culmination of the harassment in December 2001, when she "was forced to leave the Junior ROTC program to escape from defendant Deines." This is clearly inconsistent with her allegation that she left North Salem in March 2000.
The District provided the court with Plaintiff's school transcript, which establishes that Plaintiff attended North Salem from 1997 until graduation in June 2001. This makes it impossible for the harassment to have continued through December 2001. The transcript shows that Plaintiff's took her last Junior ROTC class the first term of her senior year. In Plaintiff's formal "Notice of Intent to Sue" letter, forwarded to the superintendent of the school on October 1, 2002, Plaintiff states that:
This letter is to put you on notice that I have a claim against 1SG George Deines. He is a teacher for the Army ROTC program at North Salem High School. The claim is for sexual assault. Which occurred between 1998 and 2000.
This is consistent with the acts of sexual harassment continuing through December 2000, not December 2001, and with the general length of the first term in most Oregon high schools.
Viewing the uncontradicted evidence presently before the court, the court finds that Plaintiff has alleged that the last act of harassment occurred in mid-December 2000. Accordingly, Plaintiff was required to notify the District of her claim within 180 days of mid-December 2000, or mid-July 2001.
Plaintiff alleges that she reported the harassment to Deines' supervisor, Lieutenant Morse, in July 2000, which is nearly a year before the expiration of the Act's limitation period. The District contends that the allegations of the complaint fail to establish whether the notice included the information required by the Act or whether Lieutenant Morse is authorized to receive such notice under the Act. The court agrees.
Initially, Plaintiff argues that the Oregon courts have held that notice under the Act need not be alleged in a complaint relying on Baker v. State Bd. of Higher Education, 20 Or. App. 277 (1975). In Baker, the court addressed the issue in a footnote and indicated that a "plaintiff should be allowed to plead and prove required notice if he can." Id. at FN1. The court then reasoned that, in the absence of such allegations, the failure to provide notice should be alleged as an affirmative defense and the matter resolved by the court in a demurrer. Id. In a case decided by the Oregon Supreme Court a year later, the court held that "the pleading and proof of notice sufficient to satisfy the requirements of O.R.S. 30.275 is a mandatory requirement and a condition precedent to recovery under the Oregon Tort Claims Act. The requirements of the state may be satisfied, however, by a substantial compliance with such requirements." Urban Renewal Agency of the City of Coos Bay v. Lackey, 275 Or. 35, 40 (1976) (cites omitted). This court will heed the clear direction of the Oregon Supreme Court and require Plaintiff to plead notice that substantially complies with the Act.
Plaintiff alleges that she reported Deines' harassment to his supervisor Lieutenant Morse. There is no allegation that Lieutenant Morse is an employee of the District or that he is authorized to receive actual notice on behalf of the District. The Act requires that actual notice be given to a "member of the governing body" of the District or "an attorney designated by the governing body as its general counsel" or a "person responsible for administering claims on behalf of the public body." O.R.S. 30.275; Sanok v. Grimes, 88 Or. App. 536, 540 (1987), rev'd on other grounds, 306 Or. 267 (1988). The fact that Lieutenant Morse was Deines' supervisor is not sufficient to establish that he was authorized to accept notice under the Act.
Plaintiff also fails to allege what particulars, if any, she provided Lieutenant Morse. The Act requires a claimant to advise an authorized party that a "claim for damages is or will be asserted against the public body" or its employee, provide a "description of the time, place and circumstances giving rise to the claim," and the name and mailing address of the claimant. O.R.S. 30.274(4). While it may be assumed that Plaintiff provided Lieutenant Morse with some information about the alleged harassment, the extent of that information is not provided. Additionally, there is no allegation that Plaintiff advised Lieutenant Morse that she intended to pursue a claim for money damages against the District.
Additionally, Plaintiff alleges that she reported the harassment to the school principal and administration. Plaintiff's allegations in this regard are insufficient for the reasons stated above as well as the failure to allege when the information was provided to these individuals. In the absence of this allegation, the court is unable to determine if these reports were timely under the Act.
Plaintiff fails to adequately allege notice under the Act. Accordingly her claims must be dismissed with the exception of her Section 1983 claim and the punitive damages allegations relating thereto. The Oregon Supreme Court has held that the notice requirements of the Act do not apply to claims based on Section 1983 and that the Act does not preclude a punitive damages claim based on an alleged violation of Section 1983.Sanok v. Grimes, 306 Or. 259, 262 (1988); Rogers v. Saylor, 306 Or. 267, 279 (1988).
In these cases, the Oregon Supreme Court addressed Section 1983 actions brought in state court. The court based the rulings on its finding that Section 1983 overrides the Act where there is a conflict. This court finds no reason to distinguish Section 1983 actions brought in state court from those brought in federal court.
Conclusion
The District's motion (15) to dismiss should be GRANTED with regard to Count II-Sexual Assault and Count III-Intentional Infliction of Emotional Distress and DENIED with regard to Count I-Discrimination and Plaintiff's claim for punitive damages associated with this claims. Upon approval, if any, of this Findings and Recommendation, the Article III Judge should enter an order dismissing Count II and Count III without prejudice giving Plaintiff leave to amend the complaint to include allegations that Plaintiff provided adequate notice under the Act.Scheduling Order
The above Findings and Recommendation will be referred to a United States District Judge for review. Objections, if any, are due September 13, 2004. If no objections are filed, review of the Findings and Recommendation will go under advisement on that date. If objections are filed, a response to the objections is due fourteen days after the date the objections are filed and the review of the Findings and Recommendation will go under advisement on that date.