SERCOMBE, J.
This consolidated appeal involves a series of judgments entered in favor of plaintiff, a now-retired employee of the City of Medford, in his class action suit for declaratory and injunctive relief against the city and its city manager.
As explained herein, we conclude that the trial court erred in granting summary judgment to plaintiff on his claim for declaratory and injunctive relief under ORS 243.303(2), because the legal standard that the trial court applied conflicts with the standard articulated by the Supreme Court in Doyle v. City of Medford, 347 Or. 564, 227 P.3d 683 (2010), a decision that issued after the trial court's summary judgment ruling. We reverse and remand the limited judgment on the ORS 243.303(2) claim for declaratory and injunctive relief for further proceedings. As to plaintiff's age discrimination claim under ORS 659A.030(1)(b), we conclude that the trial court erred in allowing plaintiff to try that claim, over the city's objection, on a theory of disparate impact, because that theory had not been pleaded and depended on proof different from the disparate treatment theory that plaintiff had pleaded. We therefore reverse the trial court's judgment in favor of plaintiff on his age discrimination claim. Because the supplemental judgment for attorney fees is not appealable, we dismiss the city's appeal of that judgment. Otherwise, we affirm.
We begin with a review of related litigation that provides helpful background to this appeal. Plaintiff here, an employee of the city who was eligible for retirement but had not yet retired, first filed suit against the city for declaratory and injunctive relief in federal court. In a separate suit, four retired Medford employees ("the Doyle plaintiffs") filed suit against the city, seeking damages and injunctive relief. In those suits, the plaintiffs alleged that, by failing to make health insurance coverage available to them, the city had violated various state and federal laws: ORS 243.303(2); the city's ordinance implementing ORS 243.303(2), Resolution No. 5715; Oregon's age discrimination statute, ORS 659A.030; the Age Discrimination in Employment Act of 1967 (ADEA), 29 USC §§ 621-634; and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The federal district court declined to take jurisdiction over the
The federal claims in both suits continued in federal court. As to the Doyle plaintiffs' federal due process claim, the district court granted summary judgment to the city, and the plaintiffs appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit determined that a resolution of the due process claim depended on an interpretation of ORS 243.303, a statute that had not previously been construed and that was ambiguous, and, accordingly, certified the following question to the Oregon Supreme Court: "What amount of discretion does [ORS] 243.303 confer on local governments to determine whether or not to provide health insurance coverage to their employees after retirement?" Doyle v. City of Medford, 565 F.3d 536, 541-42, 544 (9th Cir.2009) (Doyle I).
The Oregon Supreme Court accepted the certified question and answered it in Doyle v. City of Medford, 347 Or. 564, 227 P.3d 683 (2010) (Doyle II). The Supreme Court determined that the certified question focused on the meaning of the phrase "shall, insofar as and to the extent possible" in ORS 243.303(2):
ORS 243.303(2) (emphasis added). The Doyle plaintiffs argued that the statute imposed a mandatory duty on local governments to provide retiree health insurance coverage. 347 Or. at 570, 227 P.3d 683. In their view, local governments could "escape that duty only in the case of actual impossibility," but, "if there are providers available who are willing to provide [health insurance] coverage that includes retirees, the city must provide that coverage, regardless of cost or other circumstances." Id. (internal quotation marks omitted; brackets in original). The city viewed the statute as imposing "no duty at all," meaning that a local government had "total discretion" to make health insurance coverage available to retirees. Id. (internal quotation marks omitted).
The Supreme Court "reject[ed] both of those interpretations of ORS 243.303(2)." Id. The court reasoned that, by using the word "shall" in ORS 243.303(2), the legislature intended "to impose an obligation on local governments" to make the health insurance coverage that they provide to active employees available to retired employees. Id. at 573, 227 P.3d 683. The court further explained, however, that by including the phrase "insofar as and to the extent possible," the legislature intended to provide some "flexibility" to local governments so that performance of the obligation under the statute was not "unduly burdensome." Id. at 579, 227 P.3d 683. The court summarized its understanding of the statute:
Id. After reviewing the Supreme Court's answer to the certified question, the Ninth Circuit ultimately rejected the Doyle plaintiffs' due process challenge. Doyle v. City of Medford, 606 F.3d 667, 674-76 (9th Cir.2010) (Doyle III).
While the plaintiff in this case and the Doyle plaintiffs pursued their federal claims in federal court, they litigated their state law claims in the Jackson County Circuit Court. In Doyle v. City of Medford, 256 Or.App. 625, 628-29, 303 P.3d 346, rev. allowed, 354 Or. 386, 314 P.3d 964 (2013) (Doyle V), we summarized the facts underlying the state law claims in both suits:
Based on those facts, the Doyle plaintiffs brought claims for damages for the city's alleged violation of ORS 243.303(2) and ORS
In Doyle V, we concluded that the trial court erred in granting the Doyle plaintiffs' motion for summary judgment and denying the city's motion for summary judgment on the question of liability on the plaintiffs' claim that the city violated ORS 243.303(2), because that statute does not provide a private right of action for damages.
Like the Doyle plaintiffs, plaintiff alleged that the city's failure to make health care insurance benefits available upon his retirement violated ORS 243.303(2) and constituted age discrimination under ORS 659A.030(1)(b).
As with the Doyle plaintiffs, the trial court ruled in plaintiff's favor on his ORS 243.303(2) claim. In July 2009, the court granted plaintiff's motion for summary judgment and ordered that,
In December 2009, the court entered a limited judgment enjoining the city from continuing to violate ORS 243.303(2), requiring the city to "create a written plan for the City's compliance with ORS 243.303(2)" by January 2, 2010, and requiring the city to "implement any policies and procedures set forth in that plan" by March 15, 2010. In August 2010, the court entered a supplemental
That same month, plaintiff filed a motion requesting the trial court to find the city in contempt of the July 2009 order and the December 2009 limited judgment. Among other things, plaintiff alleged that the city had failed to provide those members of the class who had retired the option to continue with their same health insurance coverage, the city had failed to "take all actions necessary to comply with ORS 243.303," and the city's written plan for compliance was deficient in several respects. After conducting two evidentiary hearings, the court found the city in contempt. The court found "that there [were] members of the class * * * who have retired subsequent to the court's opinion order and the limited judgment, and that [those] retirees [had] not received a notice of their right to elect health benefit coverage, as retirees, pursuant to ORS 243.303" and that "the written plan submitted by the City did not comply with the court's prior order and judgment." The court ordered "that a fine of $100 a day be imposed against the defendant City of Medford [but not the city manager], commencing November 1, 2010," to "remain in effect until all employees of the City, and all members of the class who have already retired, are enrolled in a policy that complies in all respects with ORS 243.303." The court entered a limited judgment in December 2010 incorporating the contempt order.
Plaintiff's age discrimination claim under ORS 659A.030(1)(b) was tried to the court in the same proceeding as the Doyle plaintiffs' age discrimination claim; the trial court similarly ruled in plaintiff's favor on that claim on a disparate impact theory. After the trial court entered a general judgment in December 2010, the city appealed, asserting multiple assignments of error related to each of plaintiff's claims for relief.
We begin with the city's assignments of error related to plaintiff's ORS 243.303(2) claim. In its first assignment of error, the city asserts that the trial court erred in granting plaintiff's summary judgment motion on the ORS 243.303(2) claim. In its second assignment of error, the city argues that the trial court erred in denying its motion for summary judgment on that claim. In its third assignment of error, the city argues that the trial court erred in finding it in contempt of the trial court's orders on the ORS 243.303(2) claim. Finally, in its seventh assignment of error, the city argues that the trial court erred in awarding attorney fees and costs to plaintiff on his claim for declaratory and injunctive relief under ORS 243.303(2).
With respect to the trial court's order granting plaintiff's summary judgment motion on his ORS 243.303(2) claim, the city argues that the trial court erred as a matter of law (1) by "[l]imit[ing] the issue of possibility to whether there existed an insurance company that was willing to provide the same coverage to current and retired employees" and (2) by ruling "that the cost of providing such insurance was not a factor to consider in determining `in so far and to the extent possible' as set forth in ORS 243.303." The city contends that the trial court's construction of ORS 243.303 is in direct conflict with the Supreme Court's decision in Doyle II and that plaintiff's motion for summary judgment should not have been granted. Plaintiff responds that "any error" in the trial court's construction of ORS 243.303 was "harmless." According to plaintiff, under Doyle II, the city bore the burden to establish a factual excuse for not complying with its statutory obligation, but, when plaintiff moved for summary judgment, the city "failed to offer evidence of any excuse and specifically failed to offer any evidence of any excuse based upon cost."
(Emphasis in original.) Ultimately, the court concluded that the city had not presented "undisputed evidence that no entity providing health care insurance was (and is) willing to provide such coverage for both current and retired employees of the City of Medford" and denied the city's summary judgment motion with respect to the ORS 243.303(2) claim.
After the parties engaged in discovery, plaintiff moved for summary judgment on his ORS 243.303(2) claim. To establish that it was "possible" to provide coverage to retired employees, plaintiff pointed to evidence that (1) there were insurance companies available that provided group health insurance that allowed retirees to continue their coverage upon retirement and (2) the city's authorized representative admitted that it was "possible" for the city to secure health insurance that covered retirees because the city had obtained quotes from insurance providers for such coverage.
In response, the city again challenged plaintiff's interpretation of the statute. The city argued that the legislature's intent "was to permit local government to make continuing coverage available to retirees, to the extent it was possible, recognizing that this would depend on whether the provider chosen by the employer to provide the coverage would agree to extend such coverage to retirees until eligible for Medicare." (Emphasis added.) In other words, the city argued that a local government had total discretion to choose an insurance provider, and, if the provider did not offer a plan for retiree insurance, extending coverage to retirees was not "possible" under ORS 243.303(2). The city also argued that plaintiff had left regular employment and was no longer entitled to relief and that, if the court ordered the city to purchase insurance that covered retirees, the city could elect, under ORS 243.303(2), to pay none of the costs of making coverage available.
The court determined that the city had directed the court "to no other evidence from which this Court could identify a disputed issue of material fact that would preclude granting plaintiff's motion as a matter of law. It is apparent from the record that other insurance which provides bridge coverage for retirees indisputably is and has been available." The court went on to reject the city's argument, based on the legislative history of ORS 243.303(2), that the city had discretion to chose an insurance provider that did not provide coverage to retirees; the court noted that it had earlier considered similar contentions and characterized the city's argument as a "request for reconsideration" that it found "unpersuasive." The court rejected the city's remaining arguments and granted plaintiff's summary judgment motion.
We start with the question of whether the trial court erred in construing ORS 243.303(2). As noted, the city asserts that the trial court's construction of the statute-in its ruling on plaintiff's summary judgment motion and its ruling on the city's summary judgment motion — is in direct conflict with the Supreme Court's decision in Doyle II. We agree. The trial court ruled that plaintiff could establish that the city violated ORS 243.303(2) by showing that "insurance which provides bridge coverage for retirees indisputably is and has been available" and that, to create a genuine issue of material fact, the city had the burden to show that such coverage was not available. In Doyle II, however, the Supreme Court specifically rejected the argument that "if there are providers available who are willing to provide [health insurance] coverage that includes retirees, the city must provide that coverage, regardless of cost or other circumstances." 347 Or. at 570, 227 P.3d 683 (internal quotation marks omitted; brackets in original). The court concluded that the statute was "not intended to be unduly burdensome," and a local government could present evidence of "factual circumstances that excuse" its obligation under ORS 243.303(2). Id. at 576, 579, 227 P.3d 683. It follows that the trial court applied the wrong legal standard to evaluate plaintiff's ORS 243.303(2) claim.
Plaintiff contends, however, that regardless of any error in the trial court's construction of ORS 243.303(2), under Doyle II, the city bore the burden to establish a factual excuse to the city's statutory obligation, yet the city did not present any evidence to excuse its obligation. In plaintiff's view, regardless of how ORS 243.303(2) was viewed in the trial court, we should now apply the statutory test as articulated in Doyle II to the evidence in the summary judgment record to determine whether to affirm the trial court's ruling. In other words, plaintiff requests that this court exercise its discretion to affirm the trial court's ruling on plaintiff's summary judgment motion as right for the wrong reason. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 659-60, 20 P.3d 180 (2001).
We do not agree with plaintiff, however, that it follows that we should exercise our discretion to affirm the trial court's ruling. Even where the record contains evidence sufficient to support an alternative basis for affirmance, we will not exercise our discretion to affirm on that alternative basis "if the losing party might have created a different record below had the prevailing party raised that issue, and that record could affect the disposition of the issue." Outdoor Media Dimensions Inc., 331 Or. at 660, 20 P.3d 180 (emphasis omitted). Here, as the parties began the discovery process, they were operating under the narrow, mistaken view that a violation of ORS 243.303(2) turned on whether an insurance company existed that offered the same insurance coverage to employees and retirees. No party
Thus, although plaintiff is correct that, under Doyle II, the city has the burden to present facts showing that compliance with the statute was not possible, neither the parties nor the trial court understood that the city could establish a genuine issue of material fact by pointing to factual circumstances that excuse its obligation under ORS 243.303(2). Rather, as ORS 243.303(2) was understood at the time — and earlier, when discovery began — once plaintiff showed that "insurance which provides bridge coverage for retirees indisputably is and has been available," that was the end of the inquiry on plaintiff's claim. Because that was not the correct standard to test the evidence presented on summary judgment, and because the city might have created a different evidentiary record under the standard articulated in Doyle II, we decline to exercise our discretion to affirm the trial court's ruling on the ORS 243.303 claim.
The city next argues, in its second assignment of error, that the trial court erred in ruling in plaintiff's favor on the city's summary judgment motions filed in June and August 2008. The city claims that, in both those motions, it argued that the Employment Retirement Income Security Act of 1974, commonly known as ERISA, preempted ORS 243.303 and barred plaintiff's claim for relief under the statute. Plaintiff responds that the issue is not preserved. See State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000) (to preserve an issue at trial, a party "must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted"). Plaintiff argues that, because the city did not adequately raise the ERISA preemption issue in its motions for summary judgment, there is no ruling on that issue to which the city can assign error.
In June 2008, the city filed its first summary judgment motion. In that motion, the city presented several arguments, including an argument that OTET is "covered" as an "employee benefit plan" by ERISA, 29 USC § 1002(1), (3), and that "ORS 243.303 is preempted by ERISA." In his response, plaintiff requested a continuance on the motion pending further discovery under ORCP 47 F. Plaintiff also addressed several of the issues raised in the city's motion, but it did not address the ERISA preemption issue. The court then ordered the parties to identify those issues that were "purely legal in nature (capable of determination irrespective of discovery issues)" among "the numerous issues raised in [the city's] pending motion for summary judgment." In its order, the court noted that the city's counsel had "verbally represented to the court * * * that he would be filing a more narrowly focused summary judgment motion which he asserts will dispense with several threshold legal issues," but he had yet to do so.
In response to the trial court's order, the city filed a "Motion for Partial Summary Judgment" in August 2008 "on all claims that can be determined on legal grounds without the need for further discovery." The motion did not mention ERISA preemption. Later that month, the court sent a letter to the parties listing 10 legal issues to be addressed; the ERISA preemption issue was not among them.
The court issued separate orders on the city's summary judgment motions in the Doyle and Bova cases addressing the 10 legal issues identified in its letter to the parties. In the Doyle case, the court explicitly rejected the city's ERISA preemption argument:
In ruling on the city's summary judgment motion in the Bova case, however, the court addressed all the issues raised in the city's "motion for partial summary judgment" but did not address the preemption argument. The court also stated that "any portions of [the city's] pending motions for summary judgment that have not otherwise been disposed of in this opinion are denied, with leave to refile after discovery is complete." In the Bova case, the city filed another summary judgment motion after discovery was completed, but the city did not raise the ERISA preemption issue. The court denied that motion.
With that rather tortuous procedural history in view, we conclude that the city did not preserve its ERISA preemption argument for review. The city plainly identified that argument as one of the legal issues subject to summary determination before discovery. In accordance with that view, the city submitted a reply brief in support of its motion for partial summary judgment arguing that the Doyle plaintiffs' ORS 243.303 claim was preempted by ERISA. But the city only filed that reply brief in the Doyle case, and, accordingly, the trial court ruled on the issue in denying the summary judgment motion in the Doyle case. From those rulings, it is apparent that the trial court did not understand that the city was making any argument in the Bova case that summary judgment should be granted in its favor because ERISA preempted plaintiff's ORS 243.303 claim.
Even if we assume that the city sought and obtained a ruling on the city's ERISA preemption argument in the Bova case, the argument that the city now raises on appeal was not made to the trial court. The city contends that the trial court erred in concluding that the health insurance plan here was a "governmental plan" not covered by ERISA. See 29 USC § 1003(b)(1) (ERISA provisions do not apply to governmental plans); 29 USC § 1002(32) ("The term `governmental plan' means a plan established or maintained for its employees * * * by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing."). Specifically, it argues that the OTET plan is not a governmental plan because "[t]he plan's participants include employees of private businesses, not just governmental employees." The city never raised that fact-based argument in the trial court, and neither plaintiff nor the trial court had the opportunity to address it. Because the city failed to preserve its argument that ERISA preempts ORS 243.303, we do not consider it further.
We turn to the city's remaining assignments of error — the fourth, fifth, and sixth — all of which address plaintiff's age discrimination claim under ORS 659A.030(1)(b). The city contends that the trial court erred in allowing plaintiff to try his age discrimination claim, over the city's objection, on a theory of disparate impact, because that theory had not been pleaded and depended on different proof than the disparate treatment theory that plaintiff had pleaded. We accepted that same argument in Doyle V, reasoning that (1) ORCP 16 B requires that alternative theories be identified within each claim; (2) the alternative theory of disparate impact was not identified in the Doyle plaintiffs' age discrimination claim; and (3) the exception described in ORCP 23 B — allowing an issue not pleaded to be tried by express or implied consent of the parties — did not apply because the city had not consented to try the case on the disparate impact theory. 256 Or.App. at 645-47, 303 P.3d 346. Accordingly, we concluded that the trial court erred in awarding relief to the plaintiffs on their age discrimination claim on a theory of disparate impact. Id. at 647, 303 P.3d 346.
So too here. As in Doyle V, plaintiff's complaint did not plead age discrimination based on a theory of disparate impact, and plaintiff made no request to amend his pleading to allege a disparate impact theory. Further, at the joint bench trial held on plaintiff's age discrimination claim and the Doyle plaintiffs' age discrimination claim, the city did not consent to try the case based on a theory of disparate impact. As a result, we conclude that the trial court erred in allowing plaintiff's age discrimination claim to proceed to trial on the unpleaded theory of disparate impact.
In A144254, limited judgment reversed and remanded. In A146597, appeal dismissed. In A147477, contempt judgment affirmed; general judgment on claim for age discrimination under ORS 659A.030 reversed; otherwise affirmed.
The federal district court dismissed plaintiff Bova's state law claims with leave to refile in state court, and the district court granted summary judgment to the city on plaintiff's federal claims. Plaintiff appealed, and the Ninth Circuit vacated the district court's judgment and remanded with instructions to dismiss the suit because plaintiff's alleged injury — the denial of health insurance coverage upon retirement — had not yet occurred and his federal claims were not ripe. Bova v. City of Medford, 564 F.3d 1093 (9th Cir.2009).
Outdoor Media Dimensions Inc., 331 Or. at 659-60, 20 P.3d 180 (emphasis in original).