Opinion
Civil No. 02-294-AS.
May 5, 2004
FINDINGS AND RECOMMENDATION
Plaintiff Alfonso Vilches ("Plaintiff") brings this action against his former employer, Multnomah Education Service District ("MESD"), its employees Jackie Freni-Rothschild and Barbara Jorgensen, and MESD Superintendent Edward L. Schmitt (collectively "Defendants"). Plaintiff alleges violations under the Rehabilitation Act of 1973 and 42 U.S.C. § 1983. Plaintiff also brings pendent state claims under the Oregon whistle-blower statute, O.R.S. 659A.200 et seq. (formerly O.R.S. 659.530), the Oregon anti-discrimination law (O.R.S. 656.121(1)), and common law claims for defamation and invasion of privacy-false light. Defendants have moved for summary judgment on every claim.
FACTUAL BACKGROUND
The following recitation of facts comes primarily from the findings of the Fair Dismissals Appeals Board (FDAB) in its review of Plaintiff's termination. As discussed below, the court holds that the facts as found by FDAB are binding on this court. The court construes FDAB's findings most favorably for Plaintiff.
Plaintiff, an Hispanic man, worked for MESD as a licensed teacher. During 2001, budget cuts caused a reduction-in-force at MESD, eliminating Plaintiff's former position. After Plaintiff's job was eliminated, a position as an administrative intern became available. Peter Kane, a white male who Plaintiff alleges was less qualified than himself, was promoted to this position. Plaintiff alleges this was because Kane had an "inside track" to this position. He further alleges that MESD employees told him the wrong closing date for the application period in an effort to prevent him from applying. MESD sharply disputes these contentions, submitting that although it had considered Kane while deciding whether the administrative intern position would become available, MESD had told him several times that he was not guaranteed the position and that it would have an open application period. Plaintiff did not submit a timely application for the position. FDAB concluded that his failure to apply was not due to being misled by MESD, but rather to Plaintiff's incorrect assumption about the position. FDAB Findings at 15-16.
Unless specifically noted, all events referenced by dates occurred during 2001.
MESD offered Plaintiff a position as "school to work transition specialist," which he accepted, effective July 1, 2001. This position was in MESD's Functional Living Skills ("FLS") Program, a program for individuals between the ages of 14 and 21 with developmental disabilities. During all relevant times, the program had two locations, the Life Skills Center located in a residence ("Home") and the "Present Tense" Store ("Store"), a retail establishment operated by MESD employees and staffed by students in the FLS program. The FLS program offers instruction in basic living skills, as well as life skills for students with milder developmental disabilities who are capable of working. The goal of the FLS program is to develop students' skills sufficiently to allow them to live, and for some, to work independently. Plaintiff's primary duties were to assess and report students' educational needs and achievement, write and update individual education plans, establish and maintain behavioral standards, and interact with students, colleagues, parents, and other service providers. Plaintiff's duties were based at the Home. Although the Store did have its own separate, full-time staff, Plaintiff coordinated the attendance of Life Skills students at their work shifts at the Store. Otherwise, Plaintiff had no supervisory role over any of the Store's staff or operation.
Defendant Freni-Rothschild supervised the FLS program, and was Plaintiff's immediate supervisor. While Plaintiff's early working relationship with Freni-Rothschild was amiable, his relationship with his co-workers was not as good. By early October 2001, several employees had complained of unpleasant interactions with Plaintiff. On November 6, a confrontational interaction occurred in his office between Plaintiff and two staff members regarding the bilingual component of a student's educational plan. Allegedly after one of the staff members made the comment, "when in Rome," tempers flared. After all three individuals raised their voices, the meeting ended when Plaintiff told the two staff members to "get out of my office." FDAB Finding at 4.
Plaintiff and FDAB devoted a great deal of attention to Plaintiff's interactions with one of his students, JP, an 18 year-old Hispanic man, described as mentally retarded and developmentally delayed. On November 15, JP's mother notified Freni-Rothschild that Plaintiff had harassed him verbally by using Spanish terms insulting enough to be "fighting words," and physically by gently poking JP's shoulder with his finger and tapping JP's foot with his foot. While the parties dispute the exact nature of the contact, FDAB found that Plaintiff had in fact inappropriately hit or tapped JP. FDAB Findings at 8-9.
Also on November 15, a staff member, Tiffany Zulauf, reported that JP had harassed another student. Plaintiff, who had not seen the incident, supervised Zulauf's preparation of an incident report. Plaintiff did not deliver the report to Freni-Rothschild until November 21, despite the protocol of delivering incident reports the day they are prepared.
On November 16, JP's mother spoke with Barbara Jorgensen regarding JP's interaction with Plaintiff. Jorgensen learned during this conversation that JP's father was very upset with Plaintiff, and "want[ed] to go hit him [Plaintiff] — fight to get him to stop." FDAB Findings at 13. FDAB found that in terms of the language used and the context of the statement, it was reasonable for Jorgensen to conclude this was not a serious threat against Plaintiff. Id. She did not notify Plaintiff of this threat, nor did she notify any other authority. Plaintiff learned of the threat on December 12 during a meeting. FDAB found that due to the passage of nearly 30 days since the threat, it would not have been reasonable basis for Plaintiff to be concerned about his safety. Id.
On November 19, Plaintiff was informed that due to the allegations that he had harassed JP, he was not supposed to have any contact with JP. On November 21, Plaintiff delivered the incident report described above. Plaintiff acknowledges that between Zulauf's preparation of the report on November 15 and Plaintiff's delivery of it on November 21, he added information to the report after the staff member prepared it, underlining the word "threats" that is part of the form's boilerplate, and marking the box indicating "Disruptive Behavior." The parties dispute the significance of these additions: Plaintiff argues he was simply completing the form; Defendants argue that this was part of a larger effort by Plaintiff to portray JP as a potentially violent person and a danger to others, in retaliation for JP's complaint about Plaintiff's harassing him. FDAB specifically found that the information Plaintiff added was not supported by Zulauf's observations, and that he had "orchestrated" the addition of the information, placing JP in a false light. FDAB Findings at 17.
On Thursday, December 13, the day after Plaintiff learned of the threat by JP's father, Plaintiff supervised a different staff member's preparation of an incident report about another alleged threatening incident involving JP. Again Plaintiff added information after the staff member prepared the form. On this occasion, Plaintiff wrote, "threat hand w/scissors" and "cut-offhair." Notes taken by Freni-Rothschild in a staff meeting the following week confirmed that an incident did occur, in which JP motioned threateningly with scissors and threated to cut off another student's hair. Plaintiff did not, on either December 13 or 14, discuss with Freni-Rothschild either of the incidents of JP's behavior.
Plaintiff was not assigned to work over the weekend of December 15 and 16. During that weekend, Plaintiff contacted several parents of students in the FLS program, with the purpose, he alleges, of warning them of JP's escalating dangerous behavior. He did not call all of the parents in the program whose children would be at the Store on Monday, December 17. He did not call Freni-Rothschild to warn her of any danger he felt JP posed, though he had her cell phone number. During the period of December 13-16, Plaintiff did not contact any coworkers, staff, or supervisors about JP's recent behavior.
On Monday, December 17, Plaintiff gathered all the students at the Home, including those who would be assigned to work at the Store later that day, and told them that he had become aware of a safety concern with a student. He stated that because of this, he did not feel it was safe for them to go to the Store, and did not send them to the Store as scheduled. This statement action greatly agitated the students.
At this time, a student "self-reported" to Plaintiff that JP had tried to cut her hair. Shortly thereafter, Plaintiff filled out another incident report. FDAB found that the content of this incident report was false based on later inquiry by Freni-Rothschild. FDAB Findings at 10.
Meanwhile, a staff member at the Store called Freni-Rothschild to tell her that the students had not been sent to the Store. She then called Plaintiff and directed him to send the students to the Store, where she intended to meet the students. During this call Plaintiff did not discuss his calls to parents over the weekend, nor did he tell her of his alleged safety concerns. Plaintiff did not send the students to the Store. Freni-Rothschild then drove to the Store, where she again called Plaintiff, who acknowledged that he had not sent the students to the Store, and refused her further direction to do so.
Freni-Rothschild and a Store staff member then went to the Home. According to Freni-Rothschild, the students appeared agitated and upset, one student physically shaking, another pacing, another crying. She began trying to calm them down. At this time, Plaintiff was on the telephone in his office. At this point, Plaintiff gave her the incident report that he had prepared earlier that day about JP attempting to cut a student's hair. Freni-Rothschild told him to go home. He did not leave. Again she asked him and again he refused, and returned to his office. While Freni-Rothschild continued trying to calm the student, Plaintiff emerged from his office and said to the students words to the effect of "you don't have to talk to Jackie unless your parents are present. You don't have to listen to her or do what she says." FDAB at 11. He left the Home a few minutes later. Later that evening. Plaintiff called the parents of two students, informing them of the events at the Home that day. FDAB found this information to be either false or misleading. FDAB Findings at 12.
Plaintiff was placed on administrative leave on December 17, 2001. He was informed that it was not disciplinary. On March 5, 2002, Plaintiff was terminated.
PROCEDURAL BACKGROUND
Plaintiff filed this action on March 11, 2002. During the pendency of this action, Plaintiff exercised his right as a contract teacher to an independent review of his dismissal before FDAB, which is authorized to review dismissals for compliance with Oregon statutes, O.R.S. 342.805 to 342.937. After a four-day hearing at which FDAB heard arguments of the parties' counsel and the testimony of witnesses, FDAB issued 27 pages of factual findings and conclusions of law, upholding Plaintiff's dismissal as not "unreasonable, arbitrary, or clearly an excessive remedy." FDAB Findings at 21.
FDAB found that the facts supported dismissal on the grounds of insubordination and neglect of duty, but that dismissal for inadequate performance was not appropriate. Id. at 19-20. Specifically, in support of the ground of neglect of duty, FDAB found that Plaintiff inappropriately used offensive language with JP, and hit or tapped him. Id. at 16-17. Further, FDAB found that he had misused reporting processes, disseminating false or misleading information to make himself look better. Id. at 18-19. FDAB found that Plaintiff's refusal to send the students to the Store, and his refusal to leave the Home were without justification, and sufficed to support the ground of insubordination. Id. at 19.
FDAB has a duty to address whether, despite its factual findings, the dismissal was "unreasonable, arbitrary or clearly an excessive remedy." O.R.S. 342.905(6). After completing this analysis, FDAB concluded: "When an employee is not truthful when communicating with parents, ignores several supervisory directives and misuses reporting processes, the decision to terminate is not a clearly excessive remedy." FDAB findings at 21.
Pursuant to his statutory right under O.R.S. 342.905(9), Plaintiff then appealed the FDAB decision to the Oregon Court of Appeals, which affirmed without opinion on August 20, 2003.Vilches v. Multnomah Educ. Serv. Dist., 189 Or. App. 335 (2003) (table). The Oregon Supreme Court then denied Plaintiff's petition for review. Vilches v. Multnomah Educ. Serv. Dist., 336 Or. 377 (2004) (table).
PRELIMINARY PROCEDURAL MATTERS
At oral argument in this court, Plaintiff's counsel raised two procedural matters. First, Plaintiff's counsel suggests that Defendants' counsel failed to comply with the Local Rule 7.1(a) requirement that a moving party confer or attempt to confer with the other party. Defendants' counsel called Plaintiff's counsel and left him a message regarding his intent to move for summary judgment, which Plaintiff claims was insufficient due to a snowstorm that delayed his receipt of the message. While Plaintiff wants more effort from Defendants' counsel, this is enough under the circumstances to satisfy the rule.
Plaintiff also contends that he has set forth additional material facts in his reply to Defendants' Concise Statement of Facts, to which Defendants have not replied. The moving party must respond to any "other relevant material facts [set forth in the non-moving party's concise statement] that are at issue or are otherwise necessary for the court's determination." Local Rule 56.1(b). "Material facts set forth . . . in the response to the moving party's concise statement, will be deemed admitted unless specifically denied. . . ." Local Rule 56.1(f). Thus, Plaintiff argues, these should be deemed admitted. Plaintiff's Response to Concise Statement of Material Facts does set forth facts beyond what Defendants recite in their Concise Statement of Facts. In light of the conclusion reached below, that the FDAB findings are binding on this court, any facts set forth in Plaintiff's Response which are inconsistent with, or within the scope of the FDAB findings are not additional facts, and therefore do not call for a response under the rule. On the other hand, as to facts set forth in Plaintiff's Response which are both outside the scope of FDAB's inquiry and not inconsistent with it, these are additional facts and the court deems these admitted to the extent they are necessary for the court's determination.
Defendants also move to strike Plaintiff's and Plaintiff's counsel's declarations as non-compliant with Fed.R.Civ.P. 56(e), because they do not affirm the truth of the statements they contain. In light of the result reached below, the court denies this motion as moot.
ANALYSIS
I. Legal Standard
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P.56(c). "[T]he requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original). The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is absent. Celotex Corp. v. Cattrett, 477 U.S. 317, 322-23 (1986). Once the movant has met its burden, the onus is on the nonmovant to establish that there is a genuine issue of material fact.Id. at 324. In order to meet this burden, the nonmovant "may not rest upon the mere allegations or denials of [its] pleadings," but instead must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes are genuine if they may reasonably be resolved in favor of either party. Id. at 250. On the other hand, if after the court has drawn all reasonable inferences in favor of the nonmoving party, "the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).
II. Plaintiff's Federal Claims
On review of Plaintiff's termination, FDAB made findings of fact and conclusions of law, which the Oregon Court of Appeals affirmed without opinion. Vilches v. Multnomah Educ. Serv. Dist., 189 Or. App. 335 (2003) (table). That affirmance marked the decision with the imprimatur of a court of the State of Oregon, bringing it within the Full Faith and Credit Statute, 28 U.S.C. § 1738. The statute "requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the state from which the judgments emerged." Kremer v. Chemical Const. Corp., 456 U.S. 461, 466 (1982). "[I]n the absence of federal law modifying the operation of § 1738, the preclusive effect in federal court of [a] state-court judgment is determined by [state] law." Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 80 (1984). Further, the court must give preclusive effect to state administrative adjudications of legal as well as factual issues.Miller v. County of Santa Cruz, 39 F.3d 1030, 1032 (9th Cir. 1994). Under this rule, therefore, the court must first determine whether the Rehabilitation Act, 29 U.S.C. § 794, or 42 U.S.C. § 1983 modify the preclusive operation of § 1738. Second, if these statutes do not modify its operation, the question becomes the degree to which FDAB's findings, as affirmed by the Oregon Court of Appeals, would be preclusive in Oregon state courts.
A. Plaintiff's Rehabilitation Act § 504 Claim
Courts have examined several civil rights statutes for indicia of congressional intent to modify the operation of § 1738. InAllen v. McCurry, 449 U.S. 90, 97-99 (1980), the Court held that an earlier state court proceeding had issue preclusive effect in a later federal court proceeding involving 42 U.S.C. § 1983 claims. In Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 85 (1984), the Court held specifically that state court decisions are entitled to both issue and claim preclusive effect in subsequent § 1983 actions. Thus, the Court held that federal courts are barred from litigating issues that could have been raised in a state court proceeding. Id. at 82-83. InKremer v. Chemical Constr. Corp., the Court examined the preclusive effect that a state court's review of a state agency decision had on a subsequent action under Title VII of the Civil Rights Act of 1964. The Court noted:
Our finding that Title VII did not create an exception to § 1738 is strongly suggested if not compelled by our recent decisions in Allen v. McCurry, that preclusion rules apply in § 1983 actions and may bar federal courts from freshly deciding constitutional claims previously litigated in state courts. Indeed, there is more in 42 U.S.C. § 1983 to suggest an implied repeal of § 1738 than we have found in Title VII. In Allen, we noted that "one strong motive" behind the enactment of § 1983 was the "grave congressional concern that the state courts had been deficient in protecting federal rights." Nevertheless, we concluded that "much clearer support than this would be required to hold that § 1738 and the traditional rules of preclusions are not applicable to § 1983 suits."456 U.S. 461, 476 (1982) (internal citations omitted). The court went on to hold that when a federal court is bound by § 1738, state proceedings need do no more than satisfy the minimum requirement of procedural due process to be entitled to preclusive effect. Id. at 481. The court notes that Plaintiff has not alleged that the his appeal of the FDAB decision before the Oregon Court of Appeals was procedurally infirm.
The court now turns to the initial question whether Congress has indicated an intent to modify the normal preclusive effect of § 1738. The court holds that it has not. Although, no Ninth Circuit decision appears to have confronted this issue directly, the court finds that the holdings of the Supreme Court that in neither Title VII nor § 1983 did Congress modify the preclusive effect of § 1738 similarly compels the conclusion that Congress did not intend the Rehabilitation Act to modify it. Therefore, the decision of the Oregon Court of Appeals affirming the FDAB decision is entitled to the same claim and issue preclusive effects in this court as it would have in Oregon state courts.
1. Claim Preclusion
The court first examines whether claim preclusion bars Plaintiff's Rehabilitation Act claims under Oregon law. The Oregon Supreme Court has explained:
[A] plaintiff who has prosecuted one action against a defendant through to a final judgment . . . is [precluded] . . . from prosecuting another action against the same defendant where the claim in the second action is one which is based on the same factual transaction that was at issue in the first, seeks a remedy additional or alternative to the one sought earlier, and is of such a nature as could have been joined in the first action.Drews v. EBI Co. 310 Or. 134, 140 (1989) (quoting Rennie v. Freeway Transport, 294 Or. 319, 323 (1982). Importantly, for claim preclusion to apply, it is not necessary for a party to have actually litigated a claim, but simply that the party could have litigated it previously. Id.
Under the Drews test, the court finds that claim preclusion bars Plaintiff's Rehabilitation Act claim. First, the Oregon Court of Appeals affirmed the final judgment of FDAB. The point at which finality attaches to a statutory administrative proceeding for preclusion purposes will usually be governed by statutory provisions. Id. at 142-43. Oregon law explicitly provides that the judgment of FDAB on appeal from a termination of a contract teacher is final. O.R.S. 342.908(8). Further, there is no doubt that the Oregon Court of Appeals' review of the FDAB decision is a final judgment. Therefore, there is a final judgment for the purposes of preclusion, as required under Drews.
The next requirement is that there be privity between the parties. This requirement is met here since the parties are identical. Further, there is no doubt that the same transaction of factual occurrences was the subject of the litigation before FDAB and the Oregon Court of Appeals. No further factual development has occurred after either the FDAB or Oregon Court of Appeals hearings which might have prevented him from asserting his Rehabilitation Act claim there.
The final requirement is that Plaintiff must have had the opportunity to litigate his Rehabilitation Act claim previously.Drews, 310 Or. at 140. The Oregon Administrative Procedures Act authorizes the Oregon Court of Appeals to review agency action for statutory and constitutional violations. O.R.S. 183.482. Further, there is no doubt that state courts have jurisdiction to adjudicate federal statutory rights. "[T]his country's justice system actually comprise[s] two essentially separate legal systems, each of which `proceeds' independently of the other with ultimate review in [the Supreme Court] of the federal questions raised in either system." Atlantic Coast Line R.R. Co. v. Brotherhood of Locom. Engrs., 398 U.S. 281, 286 (1970) (internal citations omitted). Plaintiff could have asserted his Rehabilitation Act claim as a defense to the FDAB decision before the Oregon Court of Appeals, but failed to seek this alternative ground for relief. Plaintiff simply elected to argue that his actions did not satisfy the statutory grounds for dismissal, or alternatively, that his actions did not warrant dismissal.
Because Plaintiff had a full and fair opportunity to litigate his Rehabilitation Act claims in the Oregon Court of Appeals, he may not do so here. Thus, while precluding Plaintiff from vindicating his federal statutory rights by failing to assert them in his state court appeal from his termination may seem harsh or unfair, for the foregoing reasons of federal-state comity, Plaintiff's Rehabilitation Act claim against MESD is barred by claim preclusion, and summary judgment is appropriate.
2. Issue Preclusion
Even if claim preclusion were not appropriate as to Plaintiff's Rehabilitation Act claim, this claim would nonetheless be barred by issue preclusion. Application of issue preclusion here is a essentially a determination on the merits, treating the factual and legal findings of FDAB, as affirmed by the Oregon Court of Appeals, as binding on this court. The extent to which these findings preclude Plaintiff's Rehabilitation Act claim in this court is determined by two somewhat overlapping requirements for preclusion in federal and state courts. See Misischia v. Pirie, 60 F.3d 626, 629 (9th Cir. 1995). First, for the FDAB decision to have preclusive effect in federal court under § 1738, Plaintiff's FDAB hearing must meet the three fairness requirements of United States v. Utah Const. Min. Co., 384 U.S. 394, 422 (1964): 1) that FDAB acted in a judicial capacity; 2) that it resolved disputed facts properly before it; and 3) that the parties had an adequate opportunity to litigate. FDAB acted in a judicial capacity in determining whether "the facts relied upon to support [plaintiff's] dismissal [were] true and substantiated" and whether the facts found were "adequate to justify the statutory grounds. . . ." O.R.S. 342.905(6). Therefore the first two requirements are met.
Plaintiff complains that FDAB's procedures do not allow sufficient discovery to provide an adequate opportunity to litigate. He also complains that FDAB allowed MESD's counsel to remain in the courtroom when Plaintiff moved to exclude witnesses, and that FDAB did not allow attempts to address matters other than the grounds for Plaintiff's dismissal. None of these allegations has support in the record before the court. As mandated by O.R.S. 342.905(5)(b), at Plaintiff's FDAB hearing, he was represented by counsel, had the opportunity to call witnesses and cross-examine them, and could offer evidence. Absent concrete evidence to the contrary, this court cannot say that he lacked an adequate opportunity to litigate. Therefore, the FDAB proceeding meets federal preclusion requirements.
Under the state-court prong of Misischia, this court must give the same issue preclusive effect to the judgment of the Oregon Court of Appeals to which it would be entitled under Oregon state law. Migra, 465 U.S. at 81. In Oregon, decisions of one tribunal preclude subsequent litigation to the extent that five requirements are met:
1. The issue[s] in the two proceedings [were] identical.
2. The issues [were] actually litigated and [were] essential to a final decision on the merits in the prior proceeding.
3. [Vilches] had a full and fair opportunity to be heard on [those] issues.
4. [Vilches] was a party or was in privity with a party to the prior proceeding.
5. The prior proceeding was the type of proceeding to which [Oregon Courts] will give preclusive effect. Nelson v. Emerald People's Utility District, 318 Or. 99, 104 (1994) (citations omitted). The third and fourth requirements are clearly met. As noted above, Plaintiffs allegations that he lacked a full and fair opportunity to be heard are without merit. A full and fair opportunity to be heard requires that the "parties had both a full opportunity and the incentive to contest the point at issue on a record that was also subject to judicial review." Chavez v. Boise Cascade Corp., 307 Or. 632, 635 (1989). Plaintiff had the same motive and intent in the FDAB hearing as he has here, to elicit evidence that his termination was in retaliation for his intent to protect his students and not based on his insubordination and neglect of duty. Further, the parties were the same before FDAB and the Oregon Court of Appeals, satisfying the privity requirements embodied in the third and fourth Nelson requirements. The first, second, and fifth requirements are the crux of this case.
a. First Nelson Requirement: Identity of Issues in the FDAB Hearing and Plaintiff's Rehabilitation Act Claim
As much as the court can determine, Plaintiff alleges a violation of Section 504 of the Rehabilitation Act of 1973 on the basis that MESD terminated him, at least in part, for taking action to protect his disabled students from student JP's violent behavior. Section 504 of the Rehabilitation Act of 1973 (as amended) states in pertinent part:
No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . .29 U.S.C. § 794. This section's remedial provision states:
The remedies, procedures, and rights set forth in Title VI of the Civil Rights Act of 1964 [ 42 U.S.C. § 2000d et seq.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of [the Rehabilitation Act]. 29 U.S.C. § 794a(a)(2). The "aggrieved by" language brings non-disabled individuals like Plaintiff within the zone of interests of the Rehabilitation Act's remedial provision. See Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103, 1115 (9th Cir. 1987). See also Patricia N. v. LeMahieu, 141 F. Supp.2d 1243 (D. Haw. 2001) (holding that the "aggrieved by" language of 29 U.S.C. § 794a(a)(2) gave parents of autistic child a cause of action under section 504 of the Rehabilitation Act).
For violations of § 501 of the Rehabilitation Act, addressed specifically to handicap-based employment discrimination in federal agencies, the Act incorporates the remedies, procedures, and rights set forth in Title VII of the Civil Rights Act. 29 U.S.C. § 794a(a)(1).
For violations of § 501 of the Rehabilitation Act, addressed specifically to handicap-based employment discrimination in federal agencies, the Act incorporates the remedies, procedures, and rights set forth in Title VII of the Civil Rights Act. 29 U.S.C. § 794a(a)(1).
The Ninth Circuit has not delineated exactly what is required for a non-disabled plaintiff, suing on his own behalf, to prevail under a retaliation claim under § 504 Rehabilitation Act. Other courts however, have concluded that the "elements of the prima facie case of retaliation are the same whether a plaintiff proceeds under the Rehabilitation Act, ADA, ADEA, or Title VII."Bennett v. Henderson, 15 F. Supp.2d 1097, 1112 (D. Kan. 1998),aff'd, 172 F.3d 62 (10th Cir. 1999) (citing 29 C.F.R. § 1614.101(b)). Thus, for Plaintiff to state a prima facie case on his Rehabilitation Act retaliation claim, he must show that: 1) he was otherwise qualified for the position of "school to work transition specialist;" 2) that he engaged in activity protected by the Rehabilitation Act, specifically Plaintiff's opposition to, or participation in an investigation of, MESD's policies regarding the education of its disabled students; 3) he suffered an adverse employment action at, contemporaneous with, or subsequent to the protected activity; and 4) that MESD would not have retaliated against Plaintiff solely by reason of his opposition or participation. Mustafa v. Clark County School District, 157 F.3d 1169, 1174 (9th Cir. 1998). If Plaintiff is able to state a prima facie case, MESD must present evidence of a legitimate, non-discriminatory reason for this termination. The burden then shifts back to Plaintiff to present evidence that the proffered legitimate non-discriminatory reason is pretextual. The court finds that factual issues resolved by FDAB preclude Plaintiff's ability to demonstrate pretext.
Resuming analysis of the first Nelson requirement, issues are not identical when "the underlying facts relevant to the determination [of those issues] are not the same." Fisher Broadcasting, Inc. v. Dep't. of Revenue, 321 Or. 341, 347 (1995). Assuming arguendo that Plaintiff has presented a prima facie case, the underlying facts of FDAB's finding that Plaintiff had committed insubordination and neglect of duty are essentially the same as whether a legitimate, non-discriminatory reason existed for dismissing him. The FDAB findings are binding on this court, and therefore this court finds that MESD has proved a legitimate, non-discriminatory reason for dismissing Plaintiff. Thus, to survive summary judgment, Plaintiff must demonstrate a triable issue of fact on the issue of pretext.
FDAB's factual inquiry was sufficiently broad to foreclose Plaintiff's required showing of pretext. Plaintiff has failed to raise a genuine inference of pretext in the face of the following specific FDAB findings: 1) Plaintiff's insubordination could not reasonably have been motivated by a desire to protect his students because Freni-Rothschild and other staff members would have been present to protect the students at the Store, and therefore it was not protected conduct under the Rehabilitation Act; 2) Plaintiff had orchestrated false reports to place JP in a false light; and 3) JP was not a danger to other students beyond what any developmentally delayed student in the FLS might pose. FDAB Findings at 12-13. These facts make clear that FDAB's inquiry encompassed issues whose "underlying facts are relevant to the determination" of pretext. Fisher Broadcasting, 321 Or. at 347. Therefore, the first Nelson requirement, issue identity, is met.
b. Second Nelson Requirement: Actually Litigated and Essential to FDAB's Final Determination on the Merits
The court finds that the parties did litigate before FDAB and the Oregon Court of Appeals the issue of whether the sole motivation for Plaintiff's termination was pretextual. A valid and final determination of a factual or legal issue may in fact preclude Plaintiff's claim if it is a necessary element of Plaintiff's claim. Id. Transcripts from Plaintiff's opening statement and closing argument before FDAB show that he alleged that MESD had discriminatory motives in firing him, and that it had deliberately failed to follow proper procedures regarding threats by JP against other students and failed to notify Plaintiff about a statement by JP's father that he would like to fight Plaintiff. After presenting these arguments, FDAB found that MESD's dismissal of Plaintiff was "not lacking in justification in fact or circumstance nor was it based on preference, bias, prejudice, or convenience. . . ." FDAB Findings at 21 (citations omitted). To survive the instant motion, Plaintiff must demonstrate the existence of a triable issue of fact that his insubordination and neglect of duty, established conclusively by FDAB and the Oregon Court of Appeals, were not pretexts for his dismissal. See Pool v. vanRheen, 297 F.3d 899, 910 (9th Cir. 2002). Plaintiff has not made such a showing.
O.R.S. 342.865(1)(d). FDAB concluded the statutory ground of inadequate performance, O.R.S. 342.865(1)(g), was not justified. FDAB at 19.
Plaintiff's claim that his discharge was motivated by his advocacy for his students is undermined by the findings of FDAB. Over the weekend of December 13-16, while Plaintiff made numerous calls to students' parents about the alleged safety problems posed by JP, Plaintiff never notified Freni-Rothschild about them. Even while refusing her order on December 17 to send the students to the Store, he never expressed to Freni-Rothschild a concern that JP posed a threat to other students. FDAB concluded that "[a]ppellant's actions were in no sense based on a legitimate concern," because at the time of his refusal, he would have had no reasonable basis for concern about student safety, in light of the fact that Freni-Rothschild and other staff members would be at the Store when the students arrived. FDAB Findings at 19-20. These findings indicate that the issues of whether retaliation was a substantial or motivating reason for his dismissal, or whether his insubordination and neglect of duty were merely pretextual reasons for dismissal, were actually litigated and essential to FDAB's findings on the merits. Last, that FDAB examined the issue of retaliation is made clear by its duty to determine whether, despite the existence of statutory grounds for dismissal, the dismissal was an "unreasonable, arbitrary, or clearly an excessive remedy." FDAB found that it was not. Therefore, the second Nelson requirement is met.
Further, the judgment of FDAB is a final judgment. "The point at which finality attaches to a statutory administrative proceeding for preclusion purposes will usually be governed by statutory provisions." Drews, 310 Or. at 142-43. Oregon law provides for an appeal from a termination of a contract teacher to FDAB, whose judgment is final. O.R.S. 342.905(8). The teacher then has a right of appeal to the Oregon Court of Appeals. O.R.S. 342.905(9). Plaintiff has exhausted his remedies and, in fact, has sought and been denied review at the Oregon Supreme Court. The judgment of FDAB is therefore a final judgment.
c. Fifth Nelson Requirement: Type of Proceeding to Which Oregon Courts Will Give Preclusive Effect
The court finds that the proceeding of FDAB, as affirmed by the Oregon Court of Appeals, would be preclusive in Oregon courts. Unreviewed findings of FDAB are not preclusive in Oregon courts, which review them under the substantial evidence standard for contested case hearings. O.R.S. 183.482(8)(c). However, the Oregon Court of Appeals' review and affirmance of FDAB is entitled to preclusive effect. Under the fifth Nelson requirement, four factors are useful in determining the adequacy of administrative procedures for preclusion purposes:
(1) whether the administrative forum maintains procedures that are "sufficiently formal and comprehensive"; (2) whether the proceedings are "trustworthy"; (3) whether the application of issue preclusion would "facilitate prompt, orderly and fair problem resolution"; and (4) whether the "same quality of proceedings and the opportunity to litigate is present in both proceedings."Nelson, 318 Or. 99 at 104, n. 4 (quoting State v. Ratliffe, 304 Or. 254, 258 (1987)). The FDAB hearing is a contested case hearing under the Oregon Administrative Procedure Act. As discussed above, these procedures were "sufficiently formal and comprehensive" to allow this court fairly to give them preclusive effect. Id. Plaintiff suggests that he had inadequate opportunity for discovery, but as discussed previously, absent more concrete evidence, this is insufficient to allow the court to determine the procedures were insufficiently formal and comprehensive.
For the reasons discussed previously, the first, second, and fourth procedural adequacy factors are satisfied. As to the third factor, the court finds that the values of judicial economy, fairness and certainty to litigants, and prompt, orderly, and fair problem resolution are well served by applying issue preclusion in this instance. At this stage, Plaintiff has argued unsuccessfully to both FDAB and the Oregon Court of Appeals that he did nothing justifying termination — a fact issue essential to his Rehabilitation Act claim. Having had a fair opportunity to litigate these issues, precluding Plaintiff from relitigating these issues does appropriately serve the values of repose. The fifth Nelson requirement is met.
Because Plaintiff has had a fair opportunity under both federal and state issue preclusion rules to present his case of retaliatory discharge, he is precluded from relitigating them here. Summary judgment on Plaintiff's Rehabilitation Act claim is therefore appropriate.
B. Plaintiff's 42 U.S.C. § 1983 Claim
Plaintiff also alleges color of state law violations under 42 U.S.C. § 1983 against MESD as well as the individual defendants, predicated on violations of his free speech rights guaranteed by the First Amendment. Plaintiff claims the Defendants restrained his speech when he spoke out regarding such matters of public concern as the safety and educational needs of his developmentally disabled students. He also alleges constitutional violations by failure to train its administrators regarding the First Amendment rights of its employees.
As discussed above, the Supreme Court explicitly has given prior state court proceedings both claim and preclusive effect in subsequent § 1983 proceedings. Migra, 465 U.S. at 81. The Court stated that § 1738 "embodies the view that it is more important to give full faith and credit to state-court judgments than to ensure separate forums for federal and state claims. This reflects a variety of concerns, including notions of comity, the need to prevent vexatious litigation, and a desire to conserve judicial resources." Migra, 465 U.S. at 84. Therefore, claim preclusion, as determined by state law, applies to Plaintiff's § 1983 claim here. Id. at 85.
For the same reasons outlined with respect to Plaintiff's Rehabilitation Act claim, the court finds that claim preclusion bars Plaintiff § 1983 claim in this court. Again, for claim preclusion to apply, Plaintiff need not have actually litigated his § 1983 claim, he simply must have had the opportunity to litigate it previously. Drews, 310 Or. at 140. The Oregon Administrative Procedures Act authorizes the Oregon Court of Appeals to review agency action for constitutional violations. O.R.S. 183.482. There is no doubt that state courts have jurisdiction to adjudicate federal constitutional rights.Atlantic Coast Line R.R., 398 U.S. at 286. Plaintiff could have asserted his § 1983 claim as a defense to the FDAB decision before the Oregon Court of Appeals, but failed to do so. Therefore, with respect to Plaintiff's § 1983 claims, the judgment of the Oregon Court of Appeals has both issue and claim preclusive effect in this court, whether or not Plaintiff raised his § 1983 claims in the Oregon Court of Appeals.
Again, the same transaction of factual occurrences was the subject of the litigation before FDAB, the Oregon Court of Appeals, and now this court. While precluding Plaintiff from vindicating his federal constitutional rights by failing to assert them in his state court appeal may seem harsh, for the foregoing reasons of federal-state comity, Plaintiff's 42 U.S.C. § 1983 claims against MESD are barred by claim preclusion, and summary judgment is appropriate.
For these same reasons, Plaintiff's § 1983 claims against the individual defendants are also barred. Freni-Rothschild, Jorgensen, and Schmitt also could have been named as defendants in Plaintiff's appeal to the Oregon Court of Appeals for violations of § 1983. Plaintiff failed to do so, and may not do so now. Summary judgment is appropriate on these claims as well.
III. Plaintiff's State Statutory Claims
Plaintiff also brings pendent causes of action against MESD for violation of the Oregon whistleblower statute, O.R.S. 659A.200 et seq. (formerly O.R.S. 659.530). This prohibits a public employer from taking disciplinary action against an employee for disclosing information about an action by a state, or a state agency or political subdivision which the employee "reasonably believes" is a violation of any laws or regulations, or indicates "mismanagement, gross waste of funds or abuse of authority and substantial and specific danger to the public health and safety. . . ." O.R.S. 659A.203(1). Again, because the court has determined that the findings of FDAB as affirmed by the Oregon Court of Appeals would be preclusive in Oregon courts, they are preclusive in this litigation. The court finds that MESD had a legitimate, non-discriminatory reason to fire Plaintiff. Consequently, the court views this as a "mixed-motive" case, in which Plaintiff acknowledges some misconduct on his part, but also alleges a discriminatory motive. Hardee v. Legacy Health System, 167 Or. App. 425, 435, 6 P.3d 531 (2000), partially superseded by statute on other grounds, OAR-839-006-0205.
Under Oregon's interpretation of mixed-motive cases, Plaintiff must show that he would not have been terminated "but-for" his engaging in activity protected under O.R.S. 659A.203, or that, "in the absence of the discriminatory motive, [plaintiff] would have been treated differently." Id. Therefore, Plaintiff must show he engaged in a protected activity, and that a causal link exists between the activity and his termination. Id. at 434-35.
Plaintiff makes several allegations that MESD retaliated against him for engaging in protected conduct. The court analyzes the allegations separately, in light of the FDAB findings. First, he alleges retaliation for complaining about the administrative intern position. FDAB found that his failure to apply for the position was not a result of any action by MESD. Further, the letter of reprimand was in response to his failure to respond to an inquiry by MESD, not to his complaints. Therefore, this does not present a triable issue of fact regarding retaliation. Plaintiff also alleges that he raised MESD's discriminatory practices with Schmitt and the school board. The FDAB found that his allegations had no basis in fact, and that he imputed factually unsupported motives to MESD personnel. These findings foreclose Plaintiff's argument that he reasonably believed MESD's actions violated any law. Therefore, this was not protected conduct.
Plaintiff also alleges he was terminated in retaliation for his advocacy on behalf of the safety of his students when he refused to send them to the Store. As discussed above, and as found by FDAB, because Freni-Rothschild and other staff members would have been present at the Store, Plaintiff had no legitimate reason to not send the students. Plaintiff makes much out of the perceived danger posed by JP; however, this court refuses to consider that issue beyond the binding conclusion of FDAB that he did not reasonably present a danger to others beyond that normally present in developmentally disabled students. FDAB findings at 13, n. 62. Therefore, this refusal was not protected conduct under Oregon's whistleblower statute, and summary judgment is appropriate as to this claim.
Plaintiff's claims under the discrimination statute on the basis of gender or ethnicity also are appropriate for summary judgment. Plaintiff simply has presented insufficient evidence to raise a triable issue of fact on this issue. Plaintiff offers no evidence at all related to discrimination based on gender. As to ethnicity, he submits two pieces of evidence. The first is Superintendent Schmitt at some point ordered that use of the name, "Su Casa," which the students and staff had given to the Home, be stopped. Plaintiff presents no evidence why this occurred. The second is an allegation that the comment "when in Rome" was made by a staff member during the November 6 confrontation in Plaintiff's office regarding JP's bi-lingual educational requirements. Plaintiff alleges this created a hostile working environment, by apparently suggesting that student JP should be learning only English. This allegation is not discussed by FDAB, but is still not sufficient to create an issue of fact.
Second, Plaintiff vaguely alleges several procedural violations by MESD, including its failure to report to law enforcement the statement that JP's father was "upset — wants to go hit him [Appellant] — fight to get him to stop." FDAB Findings at 13. As an initial matter, this is not an "adverse employment action," on which the discrimination statute is premised. Further, FDAB found that Plaintiff had been harassing student JP by calling him derogatory names and gently kicking him on the top of his feet. FDAB at 8-9. In light of this, FDAB specifically found that defendant Jorgensen reasonably concluded that it was not a serious threat of harm against Plaintiff. Id. None of the Plaintiff's other allegations raise any reasonable inference of retaliatory motive. Summary judgment is therefore appropriate on this claim.
IV. Plaintiff's State Common Law Claims
Plaintiff also brings defamation and false light claims against MESD for three alleged statements. Under Oregon law,
A defamatory communication is one that would subject another to "hatred, contempt or ridicule or tend to diminish the esteem, respect, goodwill or confidence in which [the other] is held or to excite adverse, derogatory or unpleasant feelings or opinions against [the other]. To be actionable, a communication must be both false and defamatory. The court, rather than the jury, determines whether a communication is capable of a defamatory meaning. In making that determination, the court looks to the context in which the communication was made.Reesman v. Highfill, 327 Or. 597, 603-604 (1998) (internal citations omitted). He alleges that Freni-Rothschild, Jorgensen, and unnamed others published false and defamatory statements to the effect that: 1) he repeatedly hit and kicked JP; 2) that Plaintiff was a dangerous person; and 3) that he had made threats of harm to students. As Defendants point out, the record is devoid of any evidence that the latter two statements were ever made.
As to the first statement, because the court finds that the statements alleged to have been made by Defendants either are devoid of evidentiary support, or are protected by qualified privilege, summary judgment should be granted for MESD. "A statement is conditionally privileged if: 1) it was made to protect the interests of defendants; 2) it was made to protect the interests of plaintiff's employer; or 3) it was on a subject of mutual concern to defendants and the person to whom the statement was made." Vanderselt v. Pope, 155 Or. App. 334, 344 (1998) (quoting Wattenburg v. United Medical Lab., 269 Or. 377, 380 (1974)). Whether a statement is within the privilege may present an issue of fact. Id. However, like in Vanderselt, the court finds this issue suitable for summary adjudication. The record shows only one specific instance of a statement by MESD employees to this effect, Schmitt's letter to the school board recommending Plaintiff's dismissal. This is indisputably a matter of mutual concern between Schmitt and the school board to whom he published it, and is therefore within the scope of the qualified privilege. Plaintiff simply presents no specific evidence of excessive publication of the statement beyond what was necessary to investigate a Plaintiff's interactions with JP. Therefore summary judgment is appropriate on Plaintiff's defamation claims against MESD.
Plaintiff also brings false light claims against MESD, claiming that the statements place him in a false light before the public. Again, these claims are proper for summary judgment, because Plaintiff has failed to establish any specific evidence of excessive publication. Oregon courts have adopted the following formulation of false light:
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor has knowledge of or acted in reckless disregard as to the falsity of the publized matter and the false light in which the other would be placed.Dean v. Guard Publishing Co., 73 Or. App. 656, 659 (1985) (quoting Restatement (Second) of Torts, § 652E)). Again, Plaintiff has failed to demonstrate a triable question of fact regarding the publication of false statements. The record indicates absolutely no specific instances of excessive publication by any MESD employee. Summary judgment is appropriate on Plaintiff's false light claims against MESD.
Plaintiff's claims for defamation and false light against the individual defendants Freni-Rothschild and Jorgensen likewise fail for lack of inappropriate publication, a essential element of each claim. Therefore these claims are appropriate for summary judgment.
CONCLUSION
Defendants' motion (#36) for summary judgment should be GRANTED on all of Plaintiff's claims for relief.
Scheduling Order
The above Findings and Recommendation will be referred to a United States District Judge for review. Objections, if any, are due May 20, 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 14 days from the date the objections were filed and the review of the Findings and Recommendation will go under advisement on that date.