Blake v. Curry Health District et al

Filing 25

ORDER: Granting Defendants' Motion to Dismiss for Failure to State a Claim 14 . Blake's claim for intentional infliction of emotional distress against CHD is dismissed with prejudice. Blake's claim for defamation against CHD is dismissed with leave to amend. Blake shall have thirty (30) days from the date of this order to file an amended complaint. Amended complaint is due by 7/6/2015. Signed on 6/4/2015 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

SUSAN BLAKE,
Plaintiff,
v.
CURRY HEALTH DISTRICT;
ANDREW BAIR in his individual
capacity; LORA MAXWELL, in
her individual capacity; PAMELA
BROWN, in her individual capacity;
TERRI TOMBERLIN, in her individual
capacity,

Case No. 1:14-cv-1559-MC
OPINION AND ORDER

Defendants.
_____________________________
MCSHANE, Judge:
Plaintiff Susan Blake (“Blake”) brings this action against her former employer,
Defendant Curry Health District (“CHD”), and its officers. Blake’s First Amended Complaint
brings claims for due process violations under 42 U.S.C. § 1983; age discrimination under 29
U.S.C. §§ 621 et seq. and ORS 659A.030; disability discrimination under 42 U.S.C. §§ 12181 et
seq. and ORS 659A.112 et seq.; whistleblowing under ORS 659A.199 et seq. and ORS
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659A.203 et seq.; retaliation under ORS 441.174; as well as common law claims for defamation,
wrongful discharge, and intentional infliction of emotional distress. See ECF No. 11. CHD filed
a Motion for Partial Dismissal of Blake’s First Amended Complaint for failure to provide timely
notice of Blake’s common law claims for intentional infliction of emotional distress and
defamation pursuant to the Oregon Tort Claims Act (“OTCA”), ORS 30.275, and for failure to
state a claim under Fed. R. Civ. P. 12(b)(6). See ECF No. 14.
Blake’s claim for intentional infliction of emotional distress against CHD is dismissed
with prejudice for failure to provide CHD with timely notice of the claim as required by the
OTCA. Blake has not pleaded sufficient facts to support her claim for defamation against CHD.
Accordingly, Blake’s claim for defamation is dismissed with leave to amend. Defendants’
motion, ECF No. 14, is GRANTED in part and DENIED in part.
BACKGROUND 1
Plaintiff Susan Blake is a registered nurse with 38 years of experience. In August 2012,
Blake was hired by Defendant CHD to serve as a nurse at Curry General Hospital in Gold Beach,
Oregon. During her tenure with CHD, Blake alleges that she and many of her fellow nurses
were subjected to “harassment, unnecessary discriminatory actions and a general hostile work
environment.”
On September 26, 2013, Blake was formally disciplined by CHD for allegedly verbally
mistreating a patient and the patient’s husband; physically mistreating a student nurse; and
engaging in “unacceptable behavior with a trauma patient’s family.” On September 30, 2013,
Blake submitted a written response to CHD, contesting the September 26, 2013 discipline.

1

The Court takes all relevant facts in this opinion from the First Amended Complaint, ECF No. 11, unless otherwise
noted.

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Blake received no reply from CHD. On October 16, 2013, Blake was terminated for “alleged
additional misconduct.”
Blake experienced difficulty in securing new employment following her termination. On
June 9, 2014, Blake was hired by the Humboldt Open Door Community Health Center in Arcata,
California. Blake’s new position offers her less pay and inferior benefits compared to her
previous position with CHD.
On November 13, 2013, Blake submitted a tort claim notice to CHD (“the November
letter”). Tomberlin Decl. Ex. 1. The November letter indicated that Blake intended to pursue
claims for due process violations, wrongful discharge, whistleblowing, and discrimination based
on age and disability. Id.
On December 13, 2013, Blake sent a second letter to Defendants (“the December letter”).
Collins Decl. Ex. 1. The December letter reiterates and expands upon the allegations contained
in the November letter, adding:
Since her dismissal, Ms. Blake has heard various rumors about why she was fired.
By way of example, one individual told Ms. Blake that there was a rumor she was
fired for stealing medications. It appears that this rumor mill has had a
devastating effect in the relatively small health community.
Collins Decl. Ex. 1, at 1.
Blake commenced this action on October 1, 2014. See ECF No. 1.
STANDARDS
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain
sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual
allegations allow the court to infer the defendant’s liability based on the alleged conduct.
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Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than “the
mere possibility of misconduct.” Id. at 679.
While considering a motion to dismiss, the court must accept all allegations of material
fact as true and construe them in the light most favorable to the non-movant. Burget v. Lokelani
Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). But the court is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555. If
the complaint is dismissed, leave to amend should be granted unless the court “determines that
the pleading could not possibly be cured by the allegation of other facts.” Doe v. United States,
58 F.3d 494, 497 (9th Cir. 1995).
DISCUSSION
I. Oregon Tort Claims Act
As a public body, CHD is entitled to notice of claims against it under the OTCA, ORS
30.275. Defendants contend that Blake failed to provide timely notice of her common law
claims for defamation and intentional infliction of emotional distress as required.
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.” ORS 30.275(1). This notice must be given
“within 180 days after the alleged loss or injury.” ORS 30.275(2)(b). The plaintiff bears the
burden of proving that notice of claim was given as required. ORS 30.275(7).
The OTCA can be satisfied by formal or actual notice. ORS 30.275(3). Formal notice
must be in writing and contain:
(a) A statement that claim for damages is or will be asserted against the public
body or an officer, employee or agent of the public body;
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(b) A description of the time, place and circumstances giving rise to the claim, so
far as known to the claimant; and
(c) The name of the claimant and the mailing address to which correspondence
concerning the claim may be sent.
ORS 30.275(4).
Actual notice is any communication by which the appropriate individual “acquires actual
knowledge of the time, place and circumstances giving rise to the claim, where the
communication is such that a reasonable person would conclude that a particular person intends
to assert a claim against the public body or an officer, employee or agent of the public body.”
ORS 30.276(6). Actual notice need not, however, convey actual knowledge “of the specific
nature or theory of the claim.” Flug v. Univ. of Oregon, 335 Or. 540, 553 (2003).
It is clear from the text and context that, for the purposes of the OTCA notice of
claim requirement, “actual notice” is a communication that (1) allows the
recipient to acquire “actual knowledge of the time, place, and circumstances” that
give rise to the specific claim or claims that the plaintiff ultimately asserts; and (2)
would lead a reasonable person to conclude that the plaintiff has a general intent
to assert a claim.
Id. at 554 (emphasis in the original).
A claimant need not provide the public body with “such detailed information that the
public body can determine its liability from the face of the notice” without the need for further
investigation. Hughes v. City of Portland, 255 Or. App. 271, 281-82 (2013). “The sufficiency of
the [OTCA] notice given must be determined with the object of the statute in mind[.]” Brown v.
Portland Sch. Dist. No. 1¸ 291 Or. 77, 81 (1981). “[T]he purpose of the Tort Claims Act notice
sections is to give the public body timely notice of the tort claim and to allow its officers an
opportunity to investigate matters promptly and ascertain all necessary facts.” Id. at 81-82.
“Because the purposes of the notice are to allow the public body to investigate the allegations
and settle meritorious claims without litigation, . . . allegations that fail to suggest that a
5 – OPINION AND ORDER

particular party might assert a particular claim or that particular harms were suffered do not
substantially comply with the notice requirement.” T.L. v. Sherwood Charter Sch., No. 3:13-cv01562-HZ, 2014 WL 897123, at *16 (D. Or. Mar. 6, 2014).
In this case, both the November letter and the December letter listed a number of claims
Blake intended to assert against Defendants. Neither letter explicitly included potential claims
for defamation or intentional infliction of emotional distress. The issue is therefore whether
either the November letter or the December letter provided CHD with actual knowledge of the
time, place, and circumstances giving rise to her claims for defamation and intentional infliction
of emotional distress.
A. Defamation
Defamation requires 1) the making of a defamatory statement; 2) the publication of the
defamatory material; and 3) a resulting special harm. L&D of Oregon, Inc. v. American States
Ins. Co., 171 Or. App. 17, 22 (2000).
As noted, neither letter explicitly addresses a potential defamation claim. The December
letter does address “rumors” that were circulating about Blake’s termination. Although the
rumors are discussed specifically in the context of a potential due process claim for violation of
Blake’s liberty interest, the information was sufficient to convey actual knowledge of the “time,
place, and circumstances” that might give rise to a defamation claim. I conclude, therefore, that
CHD received timely actual notice of Blake’s defamation claim on December 13, 2013.
B. Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress requires that 1) the defendant intended to
inflict severe emotional distress on the plaintiff; 2) the defendant’s acts were the cause of the
plaintiff’s severe emotional distress, and 3) the defendant’s acts constituted an extraordinary
6 – OPINION AND ORDER

transgression of the bounds of socially tolerable conduct. McGanty v. Staudenraus, 321 Or. 532,
543 (1995).
Once again, neither letter explicitly mentions intentional infliction of emotional distress.
Nor do I find anything in either letter that might provide Defendants with actual notice of the
time, place, or circumstances of such a claim. Neither letter mentions any severe emotional
distress suffered by Blake, nor do they provide any indication that CHD committed some act that
constituted an extraordinary transgression of the bounds of socially tolerable conduct. As in
T.L., Blake’s letters “fail to suggest that a particular party might assert a particular claim or that
particular harms were suffered.” T.L., 2014 WL 897123, at *16. Accordingly, I conclude that
Blake’s tort claim notice was insufficient as to her claim for intentional infliction of emotional
distress. 2 Defendants’ motion to dismiss that claim is GRANTED.
II. Federal Rule of Civil Procedure 12(b)(6)
Defendants also move to dismiss Blake’s claims for defamation and intentional infliction
of emotional distress under Fed. R. Civ. P. 12(b)(6). As I have already dismissed Blake’s claim
for intentional infliction of emotional distress for failure to provide timely and adequate notice, I
address only Blake’s claim for defamation. 3
As noted, to prevail on a defamation claim, a plaintiff must plead and prove 1) that the
defendant made a defamatory statement; 2) the “publication” of the defamatory material; and 3)
a resulting special harm, unless the defamatory statement gives rise to presumptive special harm.
L& D of Oregon, Inc, 171 Or. App. at 22. A statement is defamatory if it subjects another to
2

The First Amended Complaint alleges that something about the manner of Blake’s termination gives rise to the
claim for intentional infliction of emotional distress. The OTCA notice period therefore began to run on this claim
on October 16, 2013, and has now elapsed.
3
I note, however, that Blake’s claim for intentional infliction of emotional distress shares many of the deficiencies
of pleading found in the defamation claim.

7 – OPINION AND ORDER

hatred, contempt, or ridicule; tends to diminish esteem, respect, goodwill, or confidence in which
the other is held; or excites adverse derogatory or unpleasant feelings or opinions against the
other. Reesman v. Highfill, 327 Or. 597, 603 (1998); Schliske v. Albany Police Dep’t, 617 F.
Supp. 2d 1106, 1114 (D. Or. 2009). “To be actionable, a communication must be both false and
defamatory.” Reesman, 327 Or. at 603.
Rule 8 requires that a pleading contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P 8(a)(2). In pleading her claim, a plaintiff
need not make detailed factual allegations, but must include “sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 663 (quoting
Twombly, 550 U.S. at 570). “[T]he tenet that a court must accept a complaint’s allegations as
true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere
conclusory statements.” Id.
A court considering a motion to dismiss may begin by identifying allegations that,
because they are mere conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the complaint’s framework, they must be
supported by factual allegations. When there are well-pleaded factual allegations,
a court should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.
Id. at 664.
In this case, Blake alleges that “CHD made defamatory statements in bad faith and with
malicious purpose about Ms. Blake to prospective employers after Ms. Blake’s termination on
October 16, 2013,” and that, as a consequence, Blake had difficulty securing new employment.
ECF No. 11. The First Amended Complaint is otherwise bare of factual allegations regarding

8 – OPINION AND ORDER

the alleged defamation. 4 This is precisely the sort of “threadbare [recital] of a cause of action’s
elements” prohibited by Iqbal. Defendants’ motion to dismiss Blake’s claim for defamation is
therefore GRANTED and this claim is DISMISSED. Blake shall have thirty (30) days from the
date of this order to file an amended complaint containing sufficient factual allegations to meet
the federal pleading standards.
CONCLUSION
For the above reasons, Defendants’ motion to dismiss, ECF No. 14, is GRANTED in part
and DENIED in part. Blake’s claim for intentional infliction of emotional distress against CHD
is dismissed with prejudice. Blake’s claim for defamation against CHD is dismissed with leave
to amend. Blake shall have thirty (30) days from the date of this order to file an amended
complaint.
IT IS SO ORDERED.
DATED this 4th day of June, 2015.

_______/s/ Michael J. McShane ________
Michael McShane
United States District Judge

4

The rumors that Blake was terminated for allegedly stealing medication, contained in the December letter and
discussed above in the context of Blake’s OTCA notice, do not appear in the First Amended Complaint.

9 – OPINION AND ORDER