BROWN, Judge.
This matter comes before the Court on Defendant's Motion (# 106) for Summary Judgment. For the reasons that follow, the Court
On July 3, 2006, Plaintiff Margaret Baumgarner began working for Defendant Community Services, Inc., as a Lifestyle Support Specialist in Defendant's administrative office.
Defendant is a domestic nonprofit corporation "organized exclusively for charitable purposes within the meaning of section 501(c)(3) of the Internal Revenue Code." Decl. of Lynn Boose, Ex. 1 at 2. See also Boose Decl. Ex. 2; Decl. of Colin Love-Geiger, Ex. 3 at 22. Defendant was "established to provide community housing, training, and supportive services for developmentally disabled ... adults in the Portland, Oregon metropolitan area." Love-Geiger Decl., Ex. 4 at 9. Specifically, Defendant "provide[s] residential care to people with mental disabilities" and "serve[s] people who are intellectually disabled and developmentally disabled" in 23 licensed facilities and a vocational program. Love-Geiger Decl., Ex. 3 at 7 and Ex. 2 at 3.
On May 11, 2007, Plaintiff's job title was changed to Customer Services/Recruitment Specialist.
On January 25, 2010, Plaintiff changed to the position of Human Resources Assistant.
On March 26, 2010, Plaintiff met with Defendant's Chief Financial Officer, Cheryl Walker-Robinson, and Plaintiff's Office Manager, Carol Graham, and advised them that she was pregnant. Plaintiff also provided them with a medical note dated March 26, 2010, from Jeffery Penikas, M.D., in which he restricted Plaintiff to working four hours per day for the following two weeks.
On April 9, 2010, Plaintiff called Graham and advised her that Dr. Penikas had taken Plaintiff off work until April 26, 2010, due to early pregnancy complications. Plaintiff faxed Graham a work release from Dr. Penikas.
On April 12, 2010, Plaintiff received a letter from Defendant dated April 9, 2010, in which Defendant advised Plaintiff: "As of 4/09/2010, we are tentatively designating your time off of 4/9/10-4/26/10 as OFLA/ FMLA. Thereafter any additional time off that you may take related to this condition will be considered OFLA/FMLA[.]"
Plaintiff used OFLA or FMLA leave from April 9 through April 26, 2010.
On April 23, 2010, Dr. Penikas released Plaintiff to work up to 20 hours per week.
On May 20, 2010, Dr. Penikas took Plaintiff off work until further notice. Plaintiff provided Graham with a release from Dr. Penikas and filled out an Employee Leave Request for medical leave. Plaintiff did not work from May 20, 2010, through June 18, 2010.
On June 3, 2010, Plaintiff received a letter from Defendant dated May 21, 2010, advising Plaintiff that she had ten weeks of OFLA/FMLA leave remaining.
On Friday June 18, 2010, Dr. Penikas released Plaintiff to work 20 hours per week. Plaintiff called Graham and informed her that Dr. Penikas had released Plaintiff to work.
On June 21, 2010, Plaintiff began working approximately 20 hours per week.
On July 19, 2010, Plaintiff received a letter from Walker-Robinson dated July 16, 2010, in which Walker-Robinson notified Plaintiff that her part-time schedule was considered a reduction in her "scheduled shift" and "the remaining hours of your normal 8hr assigned shift must be
On July 19, 2010, Dr. Penikas released Plaintiff to work six hours per day beginning July 20, 2010.
On July 23, 2010, Plaintiff received a letter from Walker-Robinson in which she advised Plaintiff that "[p]rior to [July 22, 2010,] you had approximately (4) wks remaining of your unpaid leave. We will continue to apply any un-worked hours of your normal 8hr assigned shift towards your 12wks OFLA/FMLA." Second Am. Compl., Ex. 7 at 1.
On August 27, 2010, Dr. Penikas restricted Plaintiff to working four hours per day "until she delivers." Jt. Statement of Agreed Facts at ¶ 19. Dr. Penikas advised Defendant that Plaintiff's due date was October 7, 2010. Plaintiff delivered the restriction letter to Graham and filled out an Employee Leave Request for medical leave.
On August 30, 2010, Plaintiff went to work at 8:49 a.m., but began having contractions and went to the hospital at approximately 9:30 a.m. Plaintiff's mother advised Graham later on August 30, 2010, that Plaintiff was in the hospital and would not be at work the next day. "The ER took Plaintiff off work until September 6, 2010." Jt. Statement of Agreed Facts at ¶ 20.
On September 2, 2010, Dr. Penikas took Plaintiff off work beginning September 2, 2010, until six weeks after Plaintiff delivered her babies if they were delivered by vaginal delivery or until eight weeks after delivery by cesarean section. Plaintiff telephoned Graham and advised her of Dr. Penikas's work restriction. Graham informed Plaintiff that she could bring in a note from Dr. Penikas "when Plaintiff was able." Jt. Statement of Agreed Facts at ¶ 22.
On September 3, 2010, Plaintiff telephoned Graham and told her that Plaintiff was bringing in Dr. Penikas's note that day. Graham told Plaintiff that she would not be at work and Plaintiff should take the note "to the office." Jt. Statement of Agreed Facts at ¶ 23. Plaintiff took Dr. Penikas's note to the office but Plaintiff did not get out of the car due to her contractions. Derric Thompson took Dr. Penikas's note to Gale Higley, an office assistant, and Higley left the note with staff in Walker-Robinson's office.
Plaintiff alleges in her Second Amended Complaint that she received a voicemail from Graham on September 12, 2010, advising her that Walker-Robinson was going to send Plaintiff a letter terminating her employment because Plaintiff had exhausted her FMLA/OFLA leave.
On September 15, 2010, Plaintiff received a letter from Walker-Robinson dated September 9, 2010, stating in pertinent part:
Second Am. Compl., Ex. 8 at 1.
On September 17, 2010, Plaintiff gave birth to twins.
On July 20, 2012, before Defendant filed an Answer, Plaintiff filed a First Amended Complaint asserting claims for (1) violation of FMLA; (2) violation of OFLA; (3) sex discrimination in violation of Oregon Revised Statute § 659A.030; (4) religious discrimination in violation of Oregon Revised Statute § 659A.030; (5) wrongful termination; (6) sex discrimination in violation of Title VII, 42 U.S.C. § 2000e-2; and (7) religious discrimination in violation of Title VII, 42 U.S.C. § 2000e-2.
On January 22, 2013, Plaintiff filed a Second Amended Complaint asserting claims for (1) violation of FMLA, (2) violation of OFLA, (3) sex discrimination in violation of Oregon Revised Statute § 659A.030, (4) religious discrimination in violation of Oregon Revised Statute § 659A.030, (5) wrongful termination, (6) sex discrimination in violation of Title VII, (7) religious discrimination in violation of Title VII, and (8) discrimination based on martial status in violation of Oregon Revised Statute § 659A.303.
On September 5, 2013, Defendant filed a Motion for Summary Judgment.
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Washington Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir.2011). See also Fed. R.Civ.P. 56(a). The moving party must show the absence of a dispute as to a material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine dispute as to a material fact for trial. Id. "This burden is not a light one.... The non-moving party must do more than show there is some `metaphysical doubt' as to the material facts at issue." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.2010) (citation omitted).
A dispute as to a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues." Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir.2004) (citation omitted). A "mere disagreement or bald assertion" that a genuine dispute as to a material fact exists "will not preclude the grant of summary judgment." Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D.Cal., Jan. 20, 2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.1989)). When the nonmoving party's claims are factually implausible, that party must "come forward with more persuasive evidence than otherwise would be necessary." LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir.2009) (citation omitted).
The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller
Defendant moves for summary judgment on the ground that Plaintiff failed to comply with the notice provision of the Oregon Tort Claims Act (OTCA), Oregon Revised Statute § 30.275(1), and, therefore, all of Plaintiff's claims against Defendant are barred as a matter of law.
According to Plaintiff, however, the OTCA does not apply to any of Plaintiff's claims because Plaintiff did not work in a facility covered by the OTCA, Defendant waived the notice requirement of the OTCA, and Defendant's payment of Plaintiff's wages due upon termination satisfied the OTCA notice requirement. Plaintiff also asserts the OTCA does not apply to her federal claims.
The OTCA provides in pertinent part: "No action arising from any act or omission of a public body or an officer, employee or agent of a public body ... shall be maintained unless notice of claim is given as required by this section." Or. Rev.Stat. § 30.275(1). "Under ORS 30.275(1), no action arising from a public body's tort can be maintained without timely tort claim notice." Barns v. City of Eugene, 183 Or.App. 471, 474, 52 P.3d 1094 (2002). The OTCA further requires a plaintiff to provide notice of her claim within "180 days after the alleged loss or injury." Or.Rev.Stat. § 30.275(2)(b). Plaintiff concedes she did not provide formal notice of her claims within 180 days after her termination. Under the OTCA a "public body" includes:
Or.Rev.Stat. § 30.262(1)(a). In addition, § 30.262 applies only to a nonprofit facility "that provides services to individuals with intellectual or other developmental disabilities under a contract with: (a) The Department of Human Services; or (b) A community mental health program or community developmental disabilities program established pursuant to ORS 430.620." Or.Rev.Stat. § 30.262(2)(a) and (b).
In turn, Oregon Revised Statute § 427.005(6) defines a facility as "a group home ... or other facility or program that the Department of Human Services approves to provide necessary services to persons with intellectual disabilities or other developmental disabilities." Emphasis added.
Plaintiff does not dispute Defendant was organized and "exist[s] under" Chapter 65 of the Oregon Revised Statutes and receives more than 50 percent of its funding from the State of Oregon and/or its political subdivisions. Plaintiff also does not dispute certain individual buildings within Defendant's organization house facilities that provide residential or vocational services to individuals with intellectual or other developmental disabilities. Plaintiff, however, notes she worked in a building that housed only administrative functions rather than in one of the buildings that contains facilities to provide residential or vocational services to individuals with intellectual or other developmental disabilities. According to Plaintiff, therefore, she did not work at a nonprofit facility as
Defendant points out that § 427.005(6) defines a facility for purposes of the OTCA to include programs that the Department of Human Services approves for providing services to persons with intellectual disabilities or other developmental disabilities. Lynn Boose, Defendant's Chief Executive Officer, testified at deposition that the administrative office at which Plaintiff was employed supports the provision of services to people with intellectual disabilities or other developmental disabilities by Defendant. Specifically, Boose testified Defendant's administrative office manages the funds received from the State on behalf of the clients, ensures Defendant's compliance with the Oregon Administrative Rules, manages fleet transportation for clients, administers Defendant's personnel, conducts quality assurance oversight, and manages the budget for each group home. Love-Geiger Decl., Ex. 3 at 11-13. Summarizing her testimony, Booze stated Defendant's administrative office is part of an "integrated program" by Defendant to provide its services to individuals with intellectual and developmental disabilities. In addition, the record reflects the certificates issued by the Department of Human Services "signif[y] that Community Services, Inc. is in substantial compliance with OAR 411-345-0010 through 411-345-0280... and is hereby granted approval to provide Employment and Alternative to Employment Services" and "24 Hour Residential Services" in various counties in Oregon. Love-Geiger Decl., Ex. 8 at 45-47; Ex. 9 at 1.
On this record the Court concludes Defendant as a whole, including the administrative office at which Plaintiff worked, constitutes a program within the meaning of § 427.005(6) because individual analysis of a program by its buildings does not appear to have been contemplated under the statute and would be contrary to the use of the term "program" in § 427.005(6). Accordingly, the Court concludes as a matter of law that Defendant is a public body under § 30.262(1)(a), and Plaintiff, therefore, was required to give Defendant tort notice as required under the OTCA.
Plaintiff contends Defendant waived the OTCA notice requirement when it did not assert the lack of OTCA notice as an Affirmative Defense until it filed its Amended Answer to Plaintiff's Second Amended Complaint.
On July 20, 2012, before Defendant filed an Answer to Plaintiff's Complaint, Plaintiff filed a First Amended Complaint.
On August 6, 2012, Defendant filed an Answer in which it asserted Affirmative Defenses of failure to state a claim, failure to mitigate, unclean hands, nondiscriminatory reason for termination, and waiver.
On January 22, 2013, Plaintiff filed a Second Amended Complaint to add a claim for discrimination based on marital status in violation of Oregon Revised Statute § 659A.030.
On February 8, 2013, Defendant filed an Answer to Plaintiff's Second Amended Complaint asserting Affirmative Defenses of failure to state a claim, failure to mitigate, unclean hands, nondiscriminatory reason for termination, waiver, and estoppel.
On February 25, 2013, Defendant filed an Amended Answer to Plaintiff's Second Amended Complaint in which it asserted Affirmative Defenses of failure to state a claim, failure to mitigate, unclean hands, nondiscriminatory reason for termination,
On March 12, 2013, Plaintiff filed a Motion to Strike Answer to Complaint pursuant to Federal Rule of Civil Procedure 12(f) in which Plaintiff moved to strike Defendant's Amended Answer to Plaintiff's Second Amended Complaint on the ground that it was untimely filed. Specifically, Plaintiff asserted Defendant was required to raise any and all affirmative defenses in its Answer to Plaintiff's First Amended Complaint under Federal Rule of Civil Procedure 8(c)(1) and/or Defendant was required to add any additional defenses by January 22, 2013, which was the deadline the Court set to file any amended pleadings.
On April 17, 2013, the Court issued an Opinion and Order denying Plaintiff's Motion to Strike on the ground that Defendant's Amended Answer was not untimely. The Court also rejected Plaintiff's assertion that Defendant was required to raise all of its affirmative defenses in its Answer to Plaintiff's First Amendment Complaint and noted the Ninth Circuit has "liberalized the requirement that defendants must raise affirmative defenses in their initial pleadings." Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir.2001) (quotation omitted). The Ninth Circuit held in Owens that a defendant may raise an affirmative defense at a later time as long as the delay does not prejudice the plaintiff. Id. See also Magana v. Commonwealth of the N. Mariana Islands, 107 F.3d 1436, 1446 (9th Cir.1997) ("[D]efendants may raise an affirmative defense for the first time in a motion for summary judgment only if the delay does not prejudice the plaintiff."). In addition, mere untimely assertion of an affirmative defense is insufficient to establish prejudice. Owens, 244 F.3d at 713. The Court noted Plaintiff did not allege any prejudice resulted from Defendant asserting additional affirmative defenses and that discovery remained open in the matter at that time.
"Waiver is the intentional relinquishment of a known right." Genesis Indem. Ins. Co. v. Deschutes Cnty., 194 Or.App. 446, 453, 95 P.3d 748 (2004)(citing Bennett v. Farmers Ins. Co., 332 Or. 138, 156, 26 P.3d 785 (2001), and Crain v. Siegel, 151 Or.App. 567, 573, 950 P.2d 382 (1997)).
Brown v. Portland Sch. Dist. No. 1, 291 Or. 77, 84, 628 P.2d 1183 (1981) (quotation omitted).
In her Response to Defendant's Motion for Summary Judgment, Plaintiff reiterates the arguments she asserted in her Motion to Strike Defendant's Affirmative Defense of Waiver. Plaintiff does not point to any express waiver by agreement and, as the Court noted in its April 17, 2013, Opinion and Order, mere untimely assertion of an affirmative defense is insufficient to establish prejudice. See Owens, 244 F.3d at 713. In the absence of any factual basis showing Defendant voluntarily
As noted on August 30, 2010, Plaintiff went to work at 8:49 a.m. but left at approximately 9:30 a.m. to go to the hospital. August 30, 2010, was Plaintiff's last day at work.
On September 15, 2010, Plaintiff received her final paycheck from Defendant, but it did not include any wages for the 40 minutes that Plaintiff worked on August 30, 2010.
When Plaintiff filed her Complaint in this matter on July 2, 2012, and her First Amended Complaint on July 20, 2012, Plaintiff did not include any claims for violation of federal or state wage-and-hour laws or any factual allegations related to Plaintiff's final paycheck or wages for August 30, 2010. It appears the first time that Plaintiff formally raised her unpaid wage issue was on December 5, 2012, when Plaintiff made a demand on Defendant by letter stating:
Decl. of Carl Post, Ex. 1 at 3.
In response, on December 11, 2012, Defendant issued Plaintiff a check in the amount of $9.90 and noted it "disputes ... [Plaintiff] is entitled to the enclosed wages, but has paid the demand in order to avoid a wage claim by your office." Love-Geiger Decl., Ex. 2 at 1.
Thereafter on January 22, 2013, Plaintiff filed a Second Amended Complaint, which also did not include any claims for violation of federal or state wage-and-hour laws or any factual allegations related to Plaintiff's final paycheck or wages for August 30, 2010.
Nevertheless, Plaintiff contends Defendant's payment of $9.90 dispensed with the OTCA notice requirement pursuant to Oregon Revised Statute § 30.275(3)(d), which provides the notice requirement of the OTCA "is satisfied by ... [p]ayment of all or any part of the claim by or on behalf of the public body at any time." Plaintiff also contends she has consistently sought economic damages including "lost income," and, therefore, she has asserted a claim against Defendant for the wages due to Plaintiff for her work on August 30, 2010. Plaintiff relies on Hughes v. City of Portland, 255 Or.App. 271, 296 P.3d 642 (2013), to support her argument.
In Hughes the plaintiff was a passenger in a vehicle driven by Michael Bruce, which was involved in a four-vehicle accident that occurred on November 20, 2008, and was allegedly caused by a city employee. Bruce was insured by State Farm Insurance Company. 255 Or.App. at 273, 296 P.3d 642. After the accident, State Farm sent the defendant City of Portland's Risk Management Division (RMD) a letter advising the defendant that it was "handling this claim on behalf of [Bruce]," identifying the plaintiff as an injured party, and stating "it served as notice to defendant of State Farm's `subrogation or reimbursement rights under Personal Injury Protection' and requested reimbursement for any payments that it made under
Ultimately the plaintiff brought a personal-injury negligence action against the City of Portland arising out of the accident, and the defendant moved for summary judgment on the ground that the plaintiff failed to provide tort-claim notice under the OTCA. The trial court granted summary judgment to the defendant. On appeal the plaintiff argued the defendant's payment of the plaintiff's PIP claim to State Farm was also a partial payment of the plaintiff's personal-injury claim. Id. at 277, 296 P.3d 642. The Oregon Court of Appeals reversed the trial court and held the defendant's payment of the plaintiff's PIP claim could also constitute partial payment of the plaintiff's claim for his personal injuries. Id. at 278, 296 P.3d 642. The court explained:
Id. at 280, 296 P.3d 642. The court noted "[t]he policy behind the 180 day notice requirement is to afford the public body timely notice of the alleged tort to allow its officers an opportunity to investigate all matters promptly and ascertain the facts before they become stale." Id. at 281, 296 P.3d 642 (emphasis added).
Defendant notes the Oregon Court of Appeals in Hughes specifically pointed out that "under [§ 30.275](3)(d), payment of all or any part of `the claim' refers to payment of all or part of the specific claim or claims that the plaintiff ultimately asserts against the public body." Id. at 277, 296 P.3d 642 (emphasis added).
As Defendant emphasizes, Plaintiff here has never asserted a wage claim of any kind against Defendant. Moreover, Defendant points out that an alleged failure to pay wages due on termination is distinct and wholly separate from the torts that Plaintiff alleged in her various Complaints, which all arise from allegedly discriminatory conduct. Thus, unlike in Hughes, any notice of the alleged failure to pay wages due on termination did not also serve to provide notice to which Defendant was entitled under the OTCA as to the alleged discriminatory conduct.
Finally, Defendant points out that even though Plaintiff has consistently sought economic damages for lost past and future wages in her Complaints, Plaintiff is not entitled under any of her claims to recover any wages allegedly lost during the time she was still employed by Defendant. Specifically, Oregon courts have made clear that economic damages in the form of lost wages for claims brought under Title VII, FMLA, OFLA, and § 659A.030 are limited to the period after the adverse employment action (in this case, after Plaintiff's termination). See, e.g., Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1023 (9th Cir.2000) (The court measured the back-pay period for the plaintiff's wrongful-discharge claim and held the "back pay award represented [the plaintiff]'s lost earnings during the period from her discharge" forward); Tadsen v. Praegitzer Indus., Inc., 136 Or.App. 247,
The Court agrees with Defendant's analysis and, pursuant to Hughes, Caudle, Tadsen, and Gotthardt, concludes Defendant's payment of $9.90 for unpaid wages does not constitute notice under § 30.275(3)(d) and, therefore, Defendant's payment of those wages did not satisfy the OTCA notice requirement for the claims that Plaintiff asserts in this action.
In summary, the Court concludes Plaintiff was required to comply with the notice provision of the OTCA to preserve her state-law claims. Because Plaintiff did not provide the required timely notice of those claims pursuant to the OTCA, the Court grants Defendant's Motion for Summary Judgment as to Plaintiff's state-law claims.
Defendant also asserts the OTCA applies to Plaintiff's federal claims, and, therefore, Plaintiff's failure to provide timely notice is also fatal to her claims for Defendant's alleged violations of FMLA and Title VII. Defendant notes the OTCA defines a tort for the purposes of that Act as
Or.Rev.Stat. § 30.260(8). Defendant contends because the OTCA does not specifically preclude application to federal torts and because a number of courts in Oregon have held claims under Title VII and FMLA to be torts, the OTCA notice requirement applies to Plaintiff's federal claims as well. Defendant relies on Loiseau v. Department of Human Resources of State of Oregon, 558 F.Supp. 521 (D.Or. 1983); Urban Renewal Agency of City of Coos Bay v. Lackey, 275 Or. 35, 549 P.2d 657 (1976); and Butterfield v. State, 163 Or.App. 227, 987 P.2d 569 (1999), to support its assertion that federal claims may be subject to the OTCA.
In Loiseau the plaintiff brought an action against the Oregon Department of Human Resources alleging, among other things, that the defendant violated 42 U.S.C. §§ 1981 and 1983. The defendant moved for summary judgment as to the plaintiff's claims under §§ 1981 and 1983 on the ground that the plaintiff failed to bring his action within the two-year limitations period set out in the OTCA. The court granted the defendant's motion. The court concluded in light of the fact that §§ 1981 and 1983 do not contain a limitations period, the OTCA statute of limitations was the most appropriate period to apply. 558 F.Supp. at 526-27.
Defendant contends the court's application of the OTCA limitations period to a § 1983 claim in Loiseau suggests other provisions of the OTCA, such as the notice provision, also apply to other federal statutes such as Title VII. The Oregon Supreme Court, however, held in Rogers v. Saylor, 306 Or. 267, 760 P.2d 232 (1988), that the State of Oregon could not apply all of the provisions of the OTCA to a
Felder v. Casey, 487 U.S. 131, 134, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988). In Fedler the Wisconsin Supreme Court held the Wisconsin claims-notice provision applied to the plaintiff's § 1983 action, and, therefore, the court dismissed the plaintiff's claim for failure to provide notice. The United States Supreme Court reversed on the ground that the notice requirement was "pre-empted as inconsistent with federal law." Id. at 136, 108 S.Ct. 2302. The Supreme Court rejected the Wisconsin Supreme Court's conclusion that the notice provision did not
Id. at 137, 108 S.Ct. 2302. The Court explained:
Id. at 140-41, 108 S.Ct. 2302 (citations omitted).
In addition, the Court noted as early as 1984 (one year after Loiseau was decided) that it had
Id. at 139-40, 108 S.Ct. 2302 (citations omitted). It is, therefore, questionable whether Loiseau remains good law and unquestionable that the Oregon Supreme Court has concluded the OTCA notice provisions do not apply to claims under § 1983.
In Urban Renewal Agency the defendants brought a counterclaim against the Urban Renewal Authority for violation of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (RARPAPA), 42 U.S.C. § 4625. The plaintiff demurred to the counterclaim on the ground that the defendants failed to provide OTCA notice of their claim. 275 Or. at 37, 549 P.2d 657. The trial court granted the demurrer. The Oregon Court of Appeals held "no notice was required because the counterclaim was not for a tort, but the breach of a duty arising from a statutory obligation." Id. The Oregon Supreme Court reversed and concluded the counterclaim was a tort within the meaning of the OTCA and that the defendants had given sufficient notice under the OTCA. Id. at 38-39, 549 P.2d 657. The Oregon Supreme Court, however, did not analyze whether application of the OTCA would frustrate any remedial and deterrent purposes of the RARPAPA. In addition, there is not any indication that RARPAPA is a statute similar to § 1983, which Congress enacted to "entitle[] those deprived of their civil rights to recover full compensation from the governmental officials responsible for those deprivations." Felder, 487 U.S. at 153, 108 S.Ct. 2302. Thus, the Oregon Supreme Court's conclusion related to the OTCA notice provision does not shed light on the application of that provision in the context of a statute such as Title VII, the purpose of which is much more similar to the remedial and deterrent purposes of § 1983.
In Butterfield the Oregon Supreme Court held the plaintiffs were required to provide notice under the OTCA before bringing their claims for violation of the Fair Labor Standards Act on the ground that the OTCA is a partial waiver of the state's sovereign immunity and the plaintiffs had to comply with all requirements of the OTCA in order "to take advantage of the state's partial waiver" and bring their action in state court. 163 Or.App. at 231-32, 987 P.2d 569. As in Urban Renewal Agency, however, the court did not analyze whether application of the OTCA would frustrate any remedial and deterrent purposes of the FLSA. The court focused its inquiry on whether violation of the FLSA was a tort and its interaction with the state's sovereign immunity.
Finally, Defendant relies on Coleman v. Court of Appeals of Maryland, ___ U.S. ___, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012), to support its assertion that the OTCA notice provisions apply to Plaintiff's FMLA claim. In Coleman the Supreme Court held Congress failed to abrogate the state's sovereign immunity for claims in
Neither party, however, analyzes whether Defendant is the kind of entity that is entitled to sovereign immunity. Defendant appears to assume its designation as a "public body" under the OTCA is sufficient to entitle it to sovereign immunity. The Oregon Court of Appeals, however, rejected that argument in Ackerman v. OHSU Medical Group:
233 Or.App. 511, 521-22, 227 P.3d 744 (2010). The Oregon Supreme Court has identified three
Clarke v. Or. Health Sciences Univ., 343 Or. 581, 596, 175 P.3d 418 (2007).
Defendant does not point to any evidence in the record nor provide any analysis as to whether it performs a function traditionally performed by the state, whether the state has outlined Defendant's "powers and duties," or the manner in which Defendant may be subject to state control. On this record, therefore, the Court cannot conclude Defendant is an instrumentality of the state entitled to sovereign immunity, which would bar Plaintiff from bringing a FMLA claim against Defendant in this Court absent compliance with the OTCA.
In any event, Defendant does not cite, nor could this Court find, a case in which any court had concluded the OTCA notice provision applies to actions brought under Title VII or FMLA.
In the context of this case, the Court concludes the remedial and deterrent purposes of Title VII and FMLA are similar to those contemplated by Congress in enacting § 1983. See, e.g., Fogerty v. Fantasy,
In the absence of any authority requiring individuals to comply with the notice provisions of the OTCA before bringing claims for violation of Title VII or FMLA in federal court against entities that have not been established to be instrumentalities of the state, the Court concludes Plaintiff under these circumstances was not required to provide notice under the OTCA with respect to her claims for violation of Title VII and FMLA. Accordingly, the Court denies Defendant's Motion for Summary Judgment as to Plaintiff's claims for violation of Title VII and FMLA.
For these reasons, the Court
IT IS SO ORDERED.
