Stensland v. City of Wilsonville, et al
Filing
53
OPINION AND ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT AND MOTION TO DISMISS: The defendants' motion for summary judgment is granted as to Stensland's Seventh, Eighth, Ninth, and Tenth Claims for Relief. The City's motion t o dismiss Stensland's Third and Sixth Claims for Relief is granted. Stensland has until January 16, 2012, to either amend her Complaint to add the bankruptcy trustee as plaintiff with regard to the pre-February 16, 2010, claims, or to have the bankruptcy trustee ratify those claims by formally abandoning them as assets of the bankruptcy estate. The court reserves ruling on Stensland's claims arising prior to February 16, 2010, until after January 16, 2012. (In re Motion for Partial Summary Judgment 10 ); Motion to Dismiss 10 .) Signed on 12/14/11 by Magistrate Judge Dennis J. Hubel. (kb)
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UNITED STATES DISTRICT COURT
5
DISTRICT OF OREGON
6
PORTLAND DIVISION
7
JADENE STENSLAND,
13
)
)
Plaintiff,
)
No. 03:11-cv-00490-HU
)
vs.
)
)
CITY OF WILSONVILLE, a municipality )MEMORANDUM OPINION AND ORDER
incorporated in the State of Oregon;)
ON MOTION FOR PARTIAL
MICHAEL BOWERS, an individual; and )
SUMMARY JUDGMENT
MICHAEL STONE, an individual;
)
AND MOTION TO DISMISS
)
Defendants.
)
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________________________________
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Abraham J. Barnett
The Barnett Firm, LLC
10200 S.W. Greenburg Road, Suite 340
Portland, OR 97223
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Attorney for Plaintiff
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John Kreutzer
Brian K. Weeks
Smith Freed & Eberhard P.C.
111 S.W. Fifth Avenue, Suite 4300
Portland, OR 97204
Attorneys for Defendants
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27
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1 - MEMORANDUM OPINION AND ORDER
1
HUBEL, Magistrate Judge:
2
INTRODUCTION
3
4
The plaintiff Jadene Stensland brings this employment action
5
against her former employer, City of Wilsonville (the “City”); her
6
former
7
supervisor, Michael Bowers.
8
defendants’ motion seeking partial summary judgment as to certain
9
of Stensland’s claims, and dismissal of certain of her claims.
10
direct
supervisor,
Michael
Stone;
and
Stone’s
direct
The case is before the court on the
Dkt. #10.
11
BACKGROUND FACTS
12
13
On March 14, 2006, the City extended an offer of employment to
14
Stensland by way of a letter.
15
specified that “[t]he Deputy City Engineer - Capital Projects
16
position[] is an at will position which serves at the pleasure of
17
the City Manager.
18
statement that they understand this status.”
19
Andrea M. Villagrana (the City’s Human Resources Manager), Ex. 1,
20
p.1. On March 17, 2006, Stensland accepted the employment offer by
21
signing the bottom of the letter evidencing her agreement with the
22
terms and conditions of employment outlined in the letter.
23
p. 2.
24
25
Among other things, the letter
All city management employees have signed a
Dkt. #13, Decl. of
Enclosed with the letter offer was the City’s “Manager Staff
Directive #41,” which stated as follows:
26
Management/Confidential At-Will Status
27
The City Manager has the final authority in
the appointment, removal, and supervision of
all management/confidential employees, with
28
Id.,
2 - MEMORANDUM OPINION AND ORDER
1
the exception of those appointed directly by
the City Council (City Attorney, Judge).
2
Management/Confidential employees are employed
at-will and the City and its employees
mutually reserve the right to end the
employment relationship, with or without
cause, at any time.
3
4
5
. . .
In lieu of individual contracts,
management/confidential employees shall sign
this staff directive indicating receipt and
understanding of the terms of employment with
the City of Wilsonville.
6
7
8
9
Id., Ex. 2; Dkt. #20-2, Amended Decl. of Plaintiff, Directive #41
10
(ECF p. 34 of 46).
Stensland signed a legend at the bottom of
11
Directive #41, indicating, “I, Jadene Stensland[,] have received
12
and read a copy of this City Manager Directive regarding my at-will
13
status as an employee of the City of Wilsonville.”
Id.
14
The City does not have an employee handbook, but does have a
15
set of City Manager Staff Directives (collectively, the “Staff
16
Directives”) setting forth key policies and procedures of the City.
17
Dkt. #14, Decl. of Michael Kohlhoff (City Attorney), ¶ 3; Dkt. #20,
18
¶ 22 & Ex. C.
19
Stensland during the course of her employment with the City.
20
#20, ¶ 22.
21
Directive #41, quoted above; Directive #11, describing the City’s
22
Administrative Leave policy; Directive #18, explaining the timing
23
of performance evaluations, and their distribution by the Human
24
Resources Assistant; and Directive #27, the City’s anti-harassment
25
and anti-discrimination policies and procedures.
26
& 20-2.
A copy of the Staff Directives was provided to
Dkt.
The Staff Directives include, among other things,
See Dkt. ##20-1
27
Stensland began working for the City on April 24, 2006. She
28
alleges that beginning at some point in 2008, and continuing until
3 - MEMORANDUM OPINION AND ORDER
1
her termination in the spring of 2010, she was subjected to ongoing
2
gender-based discrimination and sexual harassment by Gerald Fisher,
3
an employee under her direct supervision, and whom she claims is “a
4
close personal friend” of Stone’s.
5
she alleges the following:
6
a)
Dkt. #1, ¶ 9.
Specifically,
Fisher “engage[d] in insubordinate behavior directed at
7
[Stensland’s]
8
“openly expressing his unwillingness to be supervised by
9
a woman.”
10
b)
gender”
including,
without
limitation,
Dkt. #1, ¶ 9; Dkt. #20, ¶ 11.
In September 2008, Stensland completed an annual review
11
of Fisher “which included comments relating to needed
12
improvement of his communication and social skills.”
13
Dkt. #20, ¶ 6.
14
to indicate Fisher was exceeding expectations in all
15
categories.
16
c)
Stone directed her to revise the report
Id.
Stensland “received in her departmental inbox a 1950's
17
magazine article, which stated boldly, ‘Women should know
18
their place[.]’” Id., ¶ 12; see Dkt. #20, Ex. B (article
19
entitled “The good wife’s guide,” stating, inter alia, “A
20
good wife always knows her place.”).
21
the article “was a matter of harassment and discrimina-
22
tion based on [her] status as a woman[.]”
23
¶ 13.
24
the article.
25
d)
Stensland believed
Dkt. #20,
Stone failed to address her complaint regarding
Id.
Stone told Stensland and the company’s Human Resources
26
Manager that Fisher did not want to work for a woman, and
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it would be better if Fisher reported directly to Stone.
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Dkt. #1, ¶ 15; Dkt. #20, ¶¶ 10 & 11.
4 - MEMORANDUM OPINION AND ORDER
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e)
Stensland recommended, in the summer of 2009, that Fisher
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be terminated “based on his continued insubordinate and
3
inappropriate behavior, which was primarily directed at
4
[Stensland’s] gender.”
5
for this recommendation, explaining that managers could
6
only be terminated in accordance with certain disci-
7
plinary
8
Directives” manual.
9
Fisher a verbal warning.
10
f)
procedures
Stone verbally reprimanded her
set
forth
in
the
City’s
“Staff
Stone allowed Stensland to give
Dkt. #1, ¶¶ 16-17.
Stensland conducted a standard performance evaluation of
11
Fisher on or about September 4, 2009, which included a
12
recitation of Fisher’s insubordinate behavior.
13
about September 11, 2009, Stone ordered Stensland to
14
amend the evaluation “to remove all references to any
15
insubordinate behavior.”
16
threatened with termination if she refused to make the
17
changes.
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g)
Id., ¶¶ 18-19.
On or
Stensland was
Dkt. #20, ¶ 14.
Stensland was “reassured” by Stone that “discipline for
19
Managers follows the union process,” and she would not be
20
terminated until she had “received a verbal warning,
21
followed by a written warning and provided with a work-
22
plan to help [her] succeed.”
23
h)
Id., ¶ 15.
In the fall of 2009, Fisher told his co-workers that he
24
and Stone “had conceived a plan to push [Stensland] ‘out
25
of the picture[.]’”
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organizational
27
[Stensland’s] position, and did not include [Stensland]
chart
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5 - MEMORANDUM OPINION AND ORDER
Fisher “showed co-workers a new
which
included
Fisher
in
1
at all.”
2
action was taken.
3
i)
Stensland reported the matter to Stone, but no
Dkt. #1, ¶¶ 20-22.
Following Fisher’s comments to his co-workers, a rumor
4
began circulating about Stensland being forced out, and
5
sometime thereafter, her “project assignments decreased
6
from an average of six active assignments to one.”
7
¶ 24.
8
Fisher
9
“accommodating Fisher’s unwillingness to work for a woman
10
In February 2010, her supervisory authority over
was
revoked,
and
her
duties
were
by having Fisher report directly to Stone.”
11
j)
Id.,
Stensland
also
reported
the
ongoing
decreased,
Id., ¶ 26.
hostile
work
12
environment to Bowers during the winter of 2009-2010 and
13
spring of 2010.
14
took place in response to her complaints. Id., ¶¶ 27-28.
15
Stensland alleges that prior to her complaints about Fisher’s
16
discriminatory and harassing behavior, and the resulting hostile
17
work
18
satisfactory in all respects.
19
Bowers approached her to discuss her work assignments, and during
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their
21
employee could not be fired for performance-related issues “without
22
first being counseled and given the opportunity to improve in those
23
areas.”
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assistance from the management team over the course of eighteen
25
months,” Stensland never was offered any coaching or mentoring.
26
Dkt. #20, ¶ 21.
She was terminated on May 21, 2010.
27
Stensland,
termination
28
related issues.” Id., ¶ 33.
environment,
meeting,
her
Bowers
To her knowledge, no investigation ever
performance
her
always
were
She claims that in April 2010,
“assured”
Id., ¶¶ 31-32.
evaluations
her
that
a
management-level
However, despite her “requests for
was
6 - MEMORANDUM OPINION AND ORDER
“based
on
alleged
According to
performance
1
Stensland filed the instant case on April 21, 2011, asserting
2
claims under 42 U.S.C. § 1983 and ORS § 659A.030, for sexual
3
harassment,
4
retaliation, breach of contract, and violation of her constitu-
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tional rights. Stensland claims the defendants’ actions caused her
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to suffer “pain, fear, grief, anxiety, worry, and embarrassment,”
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id., ¶ 42, and she seeks economic, noneconomic, and punitive
8
damages, id., p. 18.
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•
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•
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•
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•
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•
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•
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hostile
work
environment,
wrongful
discharge,
She has alleged ten causes of action:
First Claim for Relief: Fourteenth Amendment
Violation; 42 USC § 1983 (Against Stone, and
Bowers, and City of Wilsonville) [gender-based
discrimination, sexual harassment, hostile work
environment, and retaliatory discharge]
Second Claim for Relief: Fourteenth Amendment
Violation; 42 USC § 1983 (Against City of
Wilsonville) [equal protection violation as a
result of City’s alleged endorsement and approval
of Stone’s, Bowers’s, and Fisher’s actions]
Third Claim for Relief: Constitutional Rights
Violations by City of Wilsonville Due to Failure to
Adequately Train and Supervise
Fourth Claim for Relief: Negligent Retention and
Supervision (Against City of Wilsonville)
Fifth Claim for Relief: Sexual Harassment (Against
City of Wilsonville). Count One: Discrimination.
Count Two: Hostile Work Environment. Count Three:
Retaliation.
Sixth Claim for Relief: Wrongful Discharge (Against
City of Wilsonville)
Seventh Claim for Relief: Breach of Employment
Contract (Against City of Wilsonville)
Eighth Claim for Relief: Breach of Implied Contract
(Against City of Wilsonville)
Ninth Claim for Relief: Breach of Oral Contract
(Against City of Wilsonville)
Tenth Claim for Relief: Breach of Duty of Good
Faith and Fair Dealing (Against City of Wilsonville)
Dkt. #1.
25
On October 30, 2009, Stensland filed a petition for relief
26
under Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 701 et seq.
27
See Dkt. #12, Decl. of Brian K. Weeks, Ex. 1 (copy of Stensland’s
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Voluntary Petition in Bankruptcy Case No. 09-39088-elp7).
7 - MEMORANDUM OPINION AND ORDER
She
1
filed her bankruptcy schedules on November 19, 2009.
2
Stensland did not list as an asset in her bankruptcy schedules any
3
claims,
4
Stensland received a “No Asset” discharge on February 16, 2010.
5
Id., Ex. 3 (docket sheet in Case No. 09-39088-elp7 (Bankr. D. Or.);
6
see Dkt. #21, noting entry of order of discharge).
7
moved to amend her bankruptcy schedules at any time since her
8
discharge.
including
any
potential
or
contingent
Id., Ex. 2.
claims.
Id.
She has not
See id.
9
The defendants move for partial summary judgment or dismissal
10
as to all of Stensland’s claims for relief, except her sexual
11
harassment claim against the City for alleged actions that occurred
12
after February 16, 2010.
13
summary judgment and for motions to dismiss, and then consider each
14
of the defendants’ motions.
The court will review the standards for
15
SUMMARY JUDGMENT STANDARDS
16
17
Summary judgment should be granted “if the movant shows that
18
there is no genuine dispute as to any material fact and the movant
19
is entitled to judgment as a matter of law.”
20
56(c)(2).
21
“must not weigh the evidence or determine the truth of the matter
22
but only determine whether there is a genuine issue for trial.”
23
Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002)
24
(citing Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th
25
Cir. 1996)).
Fed. R. Civ. P.
In considering a motion for summary judgment, the court
26
The Ninth Circuit Court of Appeals has described “the shifting
27
burden of proof governing motions for summary judgment” as follows:
28
8 - MEMORANDUM OPINION AND ORDER
1
17
The moving party initially bears the burden of
proving the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d
265 (1986). Where the non-moving party bears
the burden of proof at trial, the moving party
need only prove that there is an absence of
evidence to support the non-moving party’s
case. Id. at 325, 106 S. Ct. 2548. Where the
moving party meets that burden, the burden
then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial.
Id. at
324, 106 S. Ct. 2548. This burden is not a
light one.
The non-moving party must show
more than the mere existence of a scintilla of
evidence.
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986). The non-moving party must do
more than show there is some “metaphysical
doubt” as to the material facts at issue.
Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S. Ct.
1348, 89 L. Ed. 2d 528 (1986). In fact, the
non-moving party must come forth with evidence
from which a jury could reasonably render a
verdict in the non-moving party’s favor.
Anderson, 477 U.S. at 252, 106 S. Ct. 2505. In
determining whether a jury could reasonably
render a verdict in the non-moving party’s
favor, all justifiable inferences are to be
drawn in its favor. Id. at 255, 106 S. Ct.
2505.
18
In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th
19
Cir. 2010).
20
employment discrimination action need produce very little evidence
21
in order to overcome an employer’s motion for summary judgment.”
22
Chuang v. Univ. of Calif. Davis, Bd. of Trustees, 225 F.3d 1115,
23
1124 (9th Cir. 2000). The Chuang court explained that this minimal
24
evidence standard is due to the nature of employment cases, where
25
“‘the ultimate question is one that can only be resolved through a
26
searching inquiry – one that is most appropriately conducted by a
27
factfinder, upon a full record.’”
28
Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)).
2
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12
13
14
15
16
Notably, “[a]s a general matter, the plaintiff in an
9 - MEMORANDUM OPINION AND ORDER
Id. (quoting Schnidrig v.
STANDARDS FOR MOTIONS TO DISMISS
1
2
Chief
Judge
Aiken
of
this
court
recently
set
forth
the
3
standard for the court’s consideration of a motion to dismiss in
4
Gambee v. Cornelius, No. 10-CV-6265-AA, 2011 WL 1311782 (D. Or.
5
Apr. 1, 2011) (Aiken, C.J.).
6
Judge Aiken observed:
Under Fed. R. Civ. P. 12(b)(6), a
complaint is construed in favor of the plaintiff, and its factual allegations are taken as
true. Daniels-Hall v. Nat’l Educ. Ass’n, 629
F.3d 992, 998 (9th Cir. 2010).
“[F]or a
complaint to survive a motion to dismiss, the
non-conclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the
plaintiff to relief.” Moss v. United States
Secret Serv., 572 F.3d 962, 969 (9th Cir.
2009). “A claim has facial plausibility when
the plaintiff pleads factual content that
allows the court to draw the reasonable
inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009). “[O]nce a claim has
been stated adequately, it may be supported by
showing any set of facts consistent with the
allegations in the complaint.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 563[, 127 S.
Ct. 1955, 1969, 167 L. Ed. 2d 929] (2007).
“[G]enerally the scope of review on a motion
to dismiss for failure to state a claim is
limited to the Complaint.” Daniels-Hall, 629
F.3d at 998.
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13
14
15
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17
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19
20
Id. at *2.
21
DISCUSSION
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23
A.
Judicial Estoppel
24
The defendants seek summary judgment on all of Stensland’s
25
claims that arose on or before February 16, 2010 - the date of her
26
bankruptcy discharge - on the basis that those claims are precluded
27
under the doctrine of judicial estoppel because Stensland failed to
28
list those claims on her bankruptcy schedules, and she also failed
10 - MEMORANDUM OPINION AND ORDER
1
to move to amend her bankruptcy schedules after her employment with
2
the City was terminated. The defendants argue Stensland “obviously
3
knew of the alleged facts relating to her claims” prior to filing
4
her bankruptcy schedules “because she alleges that she complained
5
about discrimination and harassment prior to and throughout 2009.”
6
Dkt. #11, p. 8.
7
Stensland argues she was not aware of any cause of action
8
against the defendants prior to her bankruptcy discharge.
She
9
asserts “[h]er claim did not become actionable until she was
10
subjected to the adverse employment action of being fired.”
Dkt.
11
#15, p. 4.
12
her bankruptcy discharge, and she did not give notice to the City
13
of her tort claim until September 9, 2010.
She notes she was not fired until three months after
Id., p. 5.
14
It has been observed that, “[i]n the context of failure to
15
disclose a claim in bankruptcy, the law of judicial estoppel is
16
well-established in this circuit.” Simoneau v. Nike, Inc., No. 04-
17
CV-1733-BR, 2006 WL 977302, at *3 (D. Or. Apr. 6, 2006) (Brown,
18
J.).
19
estoppel doctrine in Hamilton v. State Farm Fire & Casualty Co.,
20
270 F.3d 778 (9th Cir. 2001), a case on which the defendants rely.
21
The Hamilton court explained:
22
23
24
25
26
27
28
The Ninth Circuit Court of Appeals discussed the judicial
Judicial estoppel is an equitable doctrine that precludes a party from gaining an
advantage by asserting one position, and then
later seeking an advantage by taking a clearly
inconsistent position. Rissetto v. Plumbers &
Steamfitters Local 343, 94 F.3d 597, 600-601
(9th Cir. 1996); Russell v. Rolfs, 893 F.2d
1033, 1037 (9th Cir. 1990).
This court
invokes judicial estoppel not only to prevent
a party from gaining an advantage by taking
inconsistent positions, but also because of
“general consideration[s] of the orderly
administration of justice and to ‘protect
11 - MEMORANDUM OPINION AND ORDER
1
against a litigant playing fast and loose with
the courts.’ Russell, 893 F.3d at 1037.
2
3
Hamilton, 270 F.3d at 782.
4
The Hamilton court observed that the United States Supreme
5
Court has
“listed
three
factors
that
courts
may
consider
in
6
determining whether to apply the doctrine of judicial estoppel[.]”
7
Id. (emphasis in original).
8
the Court in New Hampshire v. Maine, 532 U.S. 742, 750-51, 121
9
S. Ct. 1808, 1815, 149 L. Ed. 2d 968 (2001).
The three factors were enumerated by
The Hamilton court
10
summarized the three factors as follows: (1) whether the party’s
11
later
12
position”; Hamilton, 270 F.3d at 782 (citations omitted); (2)
13
whether a court accepted the party’s earlier position, “so that
14
judicial
15
proceeding would create ‘the perception that either the first or
16
the second court was misled’”; id. (quoting Edwards v. Aetna Life
17
Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)); and (3) “whether the
18
party seeking to assert an inconsistent position would derive an
19
unfair advantage or impose an unfair detriment on the opposing
20
party if not estopped”; Hamilton, 270 F.3d at 783 (citations
21
omitted).
22
not
23
Rather, the equities must be balanced in each specific factual
24
context.
25
S. Ct. at 1815).
position
is
“‘clearly
acceptance
of
an
inconsistent’
inconsistent
with
position
its
in
earlier
a
later
The New Hampshire Court noted these three factors are
exclusive
or
inflexible,
nor
is
the
formula
exhaustive.
Id. (paraphrasing New Hampshire, 532 U.S. at 751, 121
26
The Hamilton court explained that judicial estoppel acts to
27
prevent litigants from taking inconsistent positions within a
28
single action, and also “from making incompatible statements in two
12 - MEMORANDUM OPINION AND ORDER
1
different cases.”
2
Local 343, 94 F.3d 597, 605 (9th Cir. 1996)).
3
context, a party is judicially estopped from asserting a cause of
4
action not raised in a reorganization plan or otherwise mentioned
5
in the debtor’s schedules or disclosure statements.”
6
Hay v. First Interstate Bank of Kalispell, N.A., 978 F.2d 555, 557
7
(9th Cir. 1992); additional citations from other Circuits omitted).
8
Notably, however, because “[j]udicial estoppel seeks to prevent the
9
deliberate manipulation of the courts[,] it is inappropriate . . .
10
when
11
mistake.”
12
party’s
prior
position
was
based
“In the bankruptcy
on
Id. (citing
(citations omitted; emphasis added).
13
a
Id. (citing Rissetto v. Plumbers & Steamfitters
inadvertence
or
Helfand v. Gerson, 105 F.3d 530, 536 (9th Cir. 1997)
Application of the three New Hampshire factors to the facts of
14
this case supports the defendants’ position.
15
“later position” -- that is, her claims asserted against the
16
defendants in this action – clearly is inconsistent with her prior
17
position in her bankruptcy case, where she represented that she had
18
no claims, contingent or otherwise, against the defendants, or
19
against anyone else for that matter.
20
and unmatured claims fall within the scope of the claims that must
21
be disclosed in bankruptcy.
22
(citing 11 U.S.C. § 101(5), which defines the term “claim” to mean,
23
inter alia, a “right to payment, whether or not such right is
24
reduced to judgment, liquidated, unliquidated, fixed, contingent,
25
matured,
26
secured, or unsecured”); see Hay, 978 F.2d at 557 (despite the fact
27
that not all facts were known to the debtor, “enough was known to
unmatured,
First, Stensland’s
Even contingent, disputed,
Simoneau, 2006 WL 977302, at *3
disputed,
28
13 - MEMORANDUM OPINION AND ORDER
undisputed,
legal,
equitable,
1
require
notification
of
the
existence
2
of
the
asset
to
the
bankruptcy court”) (citations omitted).
3
Second, Stensland succeeded in persuading the bankruptcy court
4
to accept her earlier position, which resulted in a no-asset
5
discharge.
6
this proceeding would create the misconception that either the
7
bankruptcy court or this court was misled.
8
at 782 (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599
9
(6th Cir. 1982)).
10
Judicial acceptance of her inconsistent position in
See Hamilton, 270 F.3d
Third, Stensland would derive an unfair advantage over her
11
creditors
if
she
were
allowed
to
maintain
her
inconsistent
12
position, undermining the integrity of the very judicial system the
13
doctrine of judicial estoppel seeks to protect.
14
Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir.
15
1988).
16
debt, $1.5 million of which was unsecured.
17
assets listed in a debtor’s bankruptcy schedules in determining
18
whether or not to contest discharge. See Whitworth v. Nat’l Enter.
19
Sys., Inc., No. 08-968-PK, 2009 WL 2948529, at *4 (D. Or. Sept. 9,
20
2009)
21
possibility
22
discrimination claim might cause a creditor to think twice before
23
conceding to the discharge of debts.”
24
Beet Sugar Coop., No. 02-4934, 2004 WL 368471, at *2 (D. Minn. Feb.
25
26, 2004) (citing United States ex rel. Gebert v. Transp. Admin.
26
Servs., 260 F.3d 909, 913 (8th Cir. 2001) (“property of the
27
bankruptcy estate includes all causes of action that the debtor
See Oneida Motor
I note Stensland and her husband had over $2 million in
(King,
J.)
that
(citing
the
Hamilton,
debtor
28
14 - MEMORANDUM OPINION AND ORDER
has
270
a
Creditors rely on the
F.3d
at
785).
meritorious
“The
employment
Harvey v. Southern Minn.
1
could have
2
emphasis by the Harvey court).
3
This
brought
analysis
at
the
time
assumes
of
the
Stensland’s
bankruptcy
claims
petition”;
against
the
4
defendants accrued prior to her discharge in bankruptcy. Stensland
5
argues otherwise, and further asserts, without citation to any
6
supporting authority, that the question of her “knowledge of a
7
potential claim is [a] factual determination that must be decided
8
by the finder of fact.”
9
of action “accrues” for purposes of a § 1983 action is governed by
Dkt. #15, p. 5.
The issue of when a cause
10
federal law.
Cabrera v. City of Huntington Park, 159 F.3d 374, 379
11
(9th Cir. 1998). “Under federal law, the claim generally accrues
12
when the plaintiff ‘knows or has reason to know of the injury which
13
is the basis of the action.’”
14
Union City, 25 F.3d 800, 801-02 (9th Cir. 1994)).
15
judicial estoppel when the debtor ‘has knowledge of enough facts to
16
know that a potential cause of action exists during the pendency of
17
the bankruptcy, but fails to amend [her] schedules or disclosure
18
statements to identify the cause of action as a contingent asset.’”
19
Franklin v. Nike, Inc., No. CV-07-1667-PK, 2009 WL 6048126, at *6
20
(D. Or. Nov. 13, 2009) (Papak, M.J.); cf. Stupek v. Wyle Labs.
21
Corp., 327 Or. 433, 438, 963 P.2d 678, 681 (1998) (cause of action
22
under Oregon law accrues when facts have occurred and are in
23
existence that would be necessary for the plaintiff to prove in
24
order to support a right to judgment).
Id. (quoting Elliott v. City of
“Courts impose
25
To determine whether Stensland knew or had reason to know,
26
prior to her bankruptcy discharge, that she had a potential claim
27
for gender-based discrimination or sexual harassment, the court
28
must examine the elements of those claims and determine when the
15 - MEMORANDUM OPINION AND ORDER
1
events occurred that would have given rise to a potential claim.
2
Stensland
3
Amendment violations, rather than strictly as violations of Title
4
VII.
5
2010 WL 4955874, at *3 (D. Or. Nov. 29. 2010) (Clarke, M.J.)
6
(observing that “a plaintiff must exhaust administrative remedies
7
by filing a claim with the EEOC or BOLI before bringing a title VII
8
action[,
9
exhaustion”) (citing 42 U.S.C. § 2000e-5(f); Surrell v. California
10
couches
her
§
1983
claims
in
terms
of
Fourteenth
Cf. Stewart v. Jackson County, slip op., No. CV-09-3039-CL,
but]
[s]ections
1981
and
1983
do
not
require
such
Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008)).
11
In her First Claim for Relief, Stensland claims the defendants
12
violated
13
discrimination and harassment on the basis of a person’s sex, and
14
prohibiting a hostile work environment.
15
Rights Act of 1964 makes it ‘an unlawful employment practice for an
16
employer . . . to discriminate against any individual with respect
17
to
18
employment, because of such individual’s race, color, religion,
19
sex, or national origin.’”
20
U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993) (quoting
21
42 U.S.C. § 2000e-2(a)(1)).
22
1983, the genesis of Stensland’s claim is in Title VII.
23
his
her
right
to
compensation,
equal
protection
terms,
of
laws
prohibiting
“Title VII of the Civil
conditions,
or
privileges
of
Harris v. Forklift Systems, Inc., 510
Thus, although pled under section
The Ninth Circuit has explained the elements of a Title VII
24
sexual harassment and hostile work environment claim as follows:
25
“To state a claim under Title VII, sexual
harassment ‘must be sufficiently severe or
pervasive to alter the conditions of the
victim’s employment and create an abusive
working environment.’” Ellison v. Brady, 924
F.2d 872, 876 (9th Cir. 1991) (citation
omitted). To prevail under a hostile environ-
26
27
28
16 - MEMORANDUM OPINION AND ORDER
1
5
ment claim, a plaintiff must show that the
environment was both objectively and subjectively hostile, that is, that (1) a reasonable
person would find the environment hostile or
abusive and (2) the victim subjectively perceived her environment to be abusive. Harris
v. Forklift Sys., Inc., 510 U.S. 17, 21-22,
114 S. Ct. 367, [370-71,] 126 L. Ed. 2d 295
(1993). . . .
6
Best v. California Dept. of Corrections, 21 Fed. Appx. 553, 556
7
(9th Cir. 2001) (citation omitted).
2
3
4
8
The Best court also discussed how the determination is made as
9
to whether a work environment is sufficiently hostile or abusive
10
11
for purposes of a Title VII claim:
24
“[W]hether an environment is ‘hostile’ or
‘abusive’ can be determined only by looking at
all the circumstances. These may include the
frequency of the discriminatory conduct; its
severity; whether it is physically threatening
or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an
employee’s work performance.”
Harris, 510
U.S. at 23[, 114 S. Ct. at 371].
Simple
teasing, offhand comments, and isolated incidents (unless extremely serious) do not amount
to discriminatory changes in the terms and
conditions of employment. Faragher v. City of
Boca Raton, 524 U.S. 775, 788, 118 S. Ct.
2275, [2283,] 141 L. Ed. 2d 662 (1998);
Steiner v. Showboat Operating Co., 25 F.3d
1459, 1463 (9th Cir. 1994). Faragher emphasized that “conduct must be extreme to amount
to a change in the terms and conditions of
employment.” 524 U.S. at 788. Furthermore,
it is clear that though harassing conduct or
language need not be sexual in nature in order
to state a hostile work environment claim
under title VII, the harassment must be based
on the victim’s gender. See Hocevar v. Purdue
Frederick Co., 223 F.3d 721, 737 (8th Cir.
2000); cf. Ellison, 924 F.2d at 875 n.4.
25
Id.; see Patrick v. Martin, 402 Fed. Appx. 284, 285 (9th Cir. 2010)
26
(verbal harassment, standing alone, is insufficient to state a
27
claim under § 1983) (citing Oltarzewski v. Ruggiero, 830 F.2d 136,
28
139 (9th Cir. 1987)).
12
13
14
15
16
17
18
19
20
21
22
23
17 - MEMORANDUM OPINION AND ORDER
1
Stensland knew or had reason to know that she was being
2
harassed and subjected to discriminatory treatment on the basis of
3
her gender at the time each incident allegedly occurred.
4
alleged that the ongoing, pervasive harassment affected her work
5
environment and the performance of her job, and her complaints
6
about the ongoing harassment led to a reduction in her work
7
assignments and ultimately to her termination.
8
“of the injury which is the basis of the action.”
9
She had knowledge of enough facts to know that a potential cause of
10
action existed for sexual harassment and gender-based discrimi-
11
nation long before her employment was terminated, and certainly
12
while her bankruptcy case was pending. Her claims for gender-based
13
discrimination, sexual harassment, and hostile work environment
14
accrued at the time she allegedly was harassed and subjected to
15
discriminatory treatment.
16
employment ultimately was terminated.
She has
She therefore knew
Cabrera, supra.
Those claims existed whether or not her
17
The court recognizes that there could be a case (and perhaps
18
this is one) in which discriminatory or harassing conduct occurs
19
over a period of time.
20
a severe or pervasive enough environment to be actionable, but
21
enough egregious conduct may, at some point, accrue for it to be
22
actionable.
23
alleged conduct go over the tipping point?”
24
exist as to whether the tipping point was reached only after her
25
employment was terminated, and before that time, while the conduct
26
was offensive, it was not actionable.
27
as to when it became actionable, then the question becomes, “When
28
did it become ‘potentially actionable’ enough to require Stensland
For awhile, the conduct may not amount to
For Stensland, the question becomes, “When did the
18 - MEMORANDUM OPINION AND ORDER
A question of fact may
If the facts are not clear
1
to list it on her bankruptcy schedules?”
2
attraction of this hair-splitting, the court finds the purpose of
3
the Bankruptcy Act is best served by requiring a debtor to err on
4
the side of claim disclosure, which Stensland did not do in this
5
case.
6
The
court
finds
Stensland
is
Despite the intellectual
judicially
estopped
from
7
asserting any claims made in reliance on adverse employment actions
8
and discriminatory behavior that preceded her bankruptcy discharge.
9
Her position in the bankruptcy proceeding that she did not have any
10
potential claims was inconsistent with her current position that
11
Fisher, Stone, and Bowers subjected her to discriminatory treatment
12
and created a hostile work environment prior to February 16, 2010.
13
She
14
discriminatory treatment and adverse employment actions occurring
15
after February 16, 2010.
16
during the pendency of her bankruptcy case and prior to her
17
bankruptcy discharge, that she would be terminated by the City on
18
May 21, 2010.
19
as Stensland maintains in her brief, events that occurred prior to
20
February 16, 2010, can be considered as evidence relating to her
21
retaliatory discharge claim.
may,
however,
continue
to
pursue
claims
that
relate
to
For example, she could not have known,
Cf. Franklin, 2009 WL 6048126, at *7.
In addition,
22
However, the court finds that entry of summary judgment on
23
Stensland’s pre-February 16, 2010, claims would be premature at
24
this juncture.
25
system and the judicial system as a whole, and to ensure the just
26
resolution of the parties’ claims on their merits, Stensland is
27
granted thirty
28
bankruptcy trustee as the real party in interest with regard to her
In order to ensure the integrity of the bankruptcy
days,
to
January
19 - MEMORANDUM OPINION AND ORDER
16,
2012,
to
substitute
the
1
pre-February 16, 2010, claims, or alternatively, to have the
2
bankruptcy trustee ratify those claims by formally abandoning the
3
pre-February 16, 2010, claims as assets of the bankruptcy estate.
4
See Schneider v. Unum Life Ins. Co., No. CV05-1402-PK, 2008 WL
5
1995459,
6
plaintiff to take similar actions).
7
either of these actions by January 16, 2012, then the court will
8
enter summary judgment against her on those pre-February 16, 2010,
9
claims.
at
*4
(D.
Or.
May
6,
2008)
(Redden,
J.)
(ordering
Should Stensland fail to take
10
The court, therefore, reserves ruling on the defendants’
11
motion for summary judgment as to Stensland’s pre-February 16,
12
2010, claims until after January 16, 2012.
13
14
B.
Breach of Employment Contract
15
The defendants argue Stensland was at all times an at-will
16
employee, precluding her Seventh, Eighth, Ninth, and Tenth Claims
17
for Relief, all of which seek damages for the City’s alleged breach
18
of an employment contract between Stensland and the city.
19
defendants seek summary judgment on those claims.
The
20
“[E]mployment contracts in Oregon are presumed to be at-will.”
21
Arboireau v. Adidas-Salomon AG, 347 F.3d 1158, 1162 (9th Cir. 2003)
22
(citing Banaitis v. Mitsubishi Bank, Ltd., 129 Or. App. 371, 879
23
P.2d 1288, 1293 (1994)).
24
presumption that absent a contractual, statutory or constitutional
25
requirement, an employer may discharge an employee at any time and
26
for any reason.’”
27
814954, at *2 (D. Or. Apr. 9, 2001) (Brown, J.) (quoting Koepping
28
v. Tri-County Metro. Transp. Dist., 120 F.3d 998, 1002 (9th Cir.
“‘Under Oregon law, there is a legal
Bland v. Blount, Inc., No. CV 00-579-BR, 2001 WL
20 - MEMORANDUM OPINION AND ORDER
1
1997)); accord Rushing v. SAIF Corp., 223 Or. App. 665, 669, 196
2
P.3d 115, 117 (2008) (at-will employee can be terminated “for any
3
reason, or for no reason at all, and at any time”) (citing State v.
4
Saxon, Marquoit, Bertonit & Todd, 166 Or. App. 1, 6, 999 P.2d 1152,
5
1154 (2000)); Patton v. J.C. Penney Co., 719 P.2d 854, 856 (Or.
6
1986), abrogated on other grounds by McGanty v. Staudenraus, 901
7
P.2d 841 (1995).
8
indeed, an at-will employment relationship may be terminated “even
9
for a bad cause.”
10
11
Even the employer’s motives are irrelevant;
Lund v. Arbonne Intern., Inc., 132 Or. App. 87,
92, 887 P.2d 817, 821 (1994) (citations omitted).
Stensland
argues,
however,
that
the
City’s
employment
12
policies, as expressed in both verbal statements and written
13
documents,
are
14
employment
context.
15
determine whether the terms contained in the City’s employee manual
16
are ambiguous.
17
to any language in the Staff Directives, or any other document
18
distributed by the City, that states any policy the court must
19
interpret.
20
Directive #41, expressly stating Management employees are employed
21
by the City at-will, which Stensland acknowledges having received;
22
and, on the other hand, alleged “assurances” by Stone and Bowers
23
that a management-level employee would not be terminated for
24
performance-related issues without first receiving counseling, and
25
an opportunity to improve in the areas of concern.
contractually
enforceable,
Stensland
Dkt. #15, p. 7.
argues
even
the
in
court
an
at-will
first
must
However, she has failed to point
The only evidence presented here is, on the one hand,
26
In Stensland’s Complaint, she alleges the City’s “written
27
employment policies” set forth the “promise” that she would not be
28
discharged “for substandard performance without first calling the
21 - MEMORANDUM OPINION AND ORDER
1
substandard performance to [her] attention”; and if her performance
2
ever was found to be substandard, “she would be subjected to
3
progressive discipline, including verbal warnings for the first
4
instance of poor performance and written warnings for the second
5
instance of the same substandard performance prior to termination.”
6
Dkt. #1, ¶ 84(a) & (b).
7
Stensland has submitted to the court are the Staff Directives, none
8
of which discusses, or even mentions, progressive disciplinary
9
policies the City will follow prior to terminating an employee.
10
Stensland has alluded to provisions in a collective bargaining
11
agreement governing the City’s union employees, but she has offered
12
no evidence to prove she was covered by any such document, nor has
13
she offered the document itself for the court’s review.
The only “written employment policies”
14
The court finds Stensland has failed to meet her burden to
15
come forward with some evidence from which a jury could find a
16
written
17
anything
18
defendants’ motion for summary judgment as to Stensland’s Seventh
19
Claim for Relief: Breach of Employment Contract (Against City of
20
Wilsonville) is granted.
employment
other
contract
than
an
existed
at-will
that
employee.
rendered
Stensland
Therefore,
the
21
Stensland also alleges that an implied contract was created by
22
virtue of the City’s maintenance of “employment policies and a
23
course of conduct regarding progressive discipline including but
24
not limited to evaluations of performance, verbal warnings, written
25
warnings, transfers, temporary suspension and termination.”
26
#1, ¶ 92.
27
it is clear that the terms are ambiguous [and] thus factual issues
28
remain as to whether the parties intended the relationship to be at
Dkt.
She argues that “[u]pon review of the employee handbook,
22 - MEMORANDUM OPINION AND ORDER
1
will or only for cause.”
2
failed to point to any evidence that these employment policies
3
existed or were put into practice, other than her allegations
4
regarding Stone’s and Bowers’s verbal “assurances.”
5
pointed to no “terms” in any “employee handbook” to support her
6
claim. Her allegations in the Complaint, and conclusory assertions
7
in her Declaration, regarding verbal assurances she was given are
8
insufficient to sustain Stensland’s burden on summary judgment.
9
See Giulio v. BV CenterCal, LLC, ___ F. Supp. 2d ___, 2011 WL
at
*10
(D.
Or.
Dkt. #15, p. 8.
Sept.
6,
2011)
Again, Stensland has
(Hernandez,
She has
10
3924166,
J.)
(“A
11
nonmoving party cannot defeat summary judgment by relying on the
12
allegations in the complaint, or with unsupported conjecture or
13
conclusory statements.”) (citing Hernandez v. Spacelabs Medical,
14
Inc., 343 F.3d 1107, 1112 (9th Cir. 2003); Fed. R. Civ. P. 56).
15
Stensland has failed to come forward with admissible evidence to
16
support her claim that an implied contract existed between the
17
parties.
18
support of [her] position [is] insufficient.’” Giulio, 2011 WL
19
3924166, at *10 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
20
242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986); Fed. R.
21
Civ. P. 56(c) (2010)).
22
Stensland’s favor, the court finds no jury reasonably could render
23
a verdict in her favor on her claim that an implied contract
24
existed, and was breached.
25
summary judgment as to Stensland’s Eighth Claim for Relief: Breach
26
of Implied Contract (Against City of Wilsonville) is granted.
“The ‘mere existence of a scintilla of evidence in
Even drawing all reasonable inferences in
Therefore, the defendants’ motion for
27
Stensland further alleges that Stone’s and Bowers’s “verbal
28
assurances” constituted “an enforceable oral contract” which was
23 - MEMORANDUM OPINION AND ORDER
1
breached when Stensland was terminated without receiving counseling
2
and an opportunity to improve any performance concerns. Id., ¶¶ 97
3
& 98.
4
claim for breach of contract.”
5
Transp. Dist., 120 F.3d 998, 1003 (9th Cir. 1997); cf. Hutton v.
6
Jackson County, slip op., 2010 WL 4906205, at *13 (D. Or. Nov. 23,
7
2010) (Clarke, M.J.).
8
meeting, a phrase plucked out of context, is too fragile a base on
9
which to rest such a heavy obligation inherent in [a contract of
“Oregon case law is clear that oral promises may support a
Koepping v. Tri-County Metro.
However, “‘[a] casual remark made at a
10
employment.]’”
Koepping, 120 F.3d at 1003 (quoting Mursch v. Van
11
Dorn Co., 851 F.2d 990, 997 (7th Cir. 1988)).
12
The determination as to whether or not an enforceable contract
13
exists is a question of law, “using a standard of objective intent,
14
measured by whether a reasonable person would construe a promise
15
from the words and acts of the other.”
16
*12 (citations omitted); see Pereira v. Thompson, 230 Or. App. 640,
17
217 P.3d 236 (2009) (“Whether a contract exists is a question of
18
law.”).
19
in generally-distributed, written materials stating that employment
20
is at-will and can be terminated by either party, an employee’s
21
reliance on oral promises is considered unreasonable.
22
120 F.3d at 1003.1
23
by Stone and Bowers regarding the City’s termination policies were
Hutton, 2010 WL 4906205, at
When oral promises are directly contradicted by language
This is just such a case.
Koepping,
Any oral statements
24
25
26
27
28
1
In any event, Stensland has not alleged or shown that she
acted in reliance on Stone’s and Bowers’s verbal statements. She
also has failed to allege or show that either Stone or Bowers had
the authority to enter into contractual modifications relating to
Stensland’s employment status on the City’s behalf.
24 - MEMORANDUM OPINION AND ORDER
1
directly contradicted by language in Directive #41, expressly
2
specifying that all management employees were employed at will.
3
The court finds as a matter of law that even if Stone and
4
Bowers made the statements alleged by Stensland, those statements
5
nevertheless did not change Stensland’s at-will employment and did
6
not create an oral employment contract. The defendants’ motion for
7
summary judgment on Stensland’s Ninth Claim for Relief: Breach of
8
Oral
9
granted.
Contract
(Against
City
of
Wilsonville),
is,
therefore,
10
Stensland’s Tenth Claim for Relief, alleging the City breached
11
its duty of good faith and fair dealing, arises from the alleged
12
existence of an employment contract.
13
Seventh, Eighth, and Ninth Claims for Relief, above, the court has
14
found that no employment contract existed, and Stensland was at all
15
relevant times an at-will employee of the City.
16
claim can be maintained for breach of any duty related to a
17
nonexistent employment contract, and the defendants’ motion for
18
summary judgment on this claim also is granted.
In addressing Stensland’s
Accordingly, no
19
20
C.
21
Wrongful Discharge
The
defendants
seek
dismissal
of
Stensland’s
wrongful
22
discharge claim, arguing the claim is not permitted under Oregon
23
law.
24
employment in Oregon.
25
F.3d 61 (Table), 1994 WL 444616 (9th Cir. 1994), the Ninth Circuit
26
observed that Oregon recognizes two exceptions to the general at-
27
will-employment rule; i.e., “discharge for exercising a job-related
28
right and discharge for complying with a public duty.”
The court has discussed, above, the law relating to at-will
See § B, supra.
25 - MEMORANDUM OPINION AND ORDER
In Winn v. Case Corp., 33
Id., 1994
1
WL 44616, at *2 (citing Patton, 719 P.2d at 856-57); see Babick v.
2
Oregon Arena Corp., 333 Or. 401, 407 (2002) (same). This court has
3
observed that resisting sexual harassment is an example of the
4
exercise of a job-related right. Draper v. Astoria Sch. Dist., 995
5
F. Supp. 1122, 1127 (D. Or. 1998), abrogated in part on other
6
grounds by Rabkin v. Oregon Health Sciences Univ., 350 F.3d 967
7
(9th Cir. 2003) (citation omitted).
8
Stensland clearly had a right to be free from gender-based
9
discrimination and sexual harassment in the workplace, whether from
10
above or below her in the chain of command; to report to her
11
superiors when actions constituting harassment or discrimination
12
occurred; and to expect that her complaints would be addressed
13
properly.
14
as under the City’s own anti-harassment and anti-discrimination
15
directives.
16
from her complaints about a hostile work environment due to sexual
17
harassment and gender-based discrimination, then her termination
18
would be contrary to public policy, and her wrongful discharge
19
claim would constitute the type of “narrow exception to the at-will
20
employment
21
establishing the tort of wrongful discharge.
22
F. Supp. at 1127 (“In Oregon, the tort of wrongful discharge was
23
established
24
employment doctrine in certain limited circumstances where the
25
courts have determined that the reasons for the discharge are so
26
contrary to public policy that a remedy is necessary in order to
27
deter such conduct.”) (citations omitted).
These rights arise under federal and state law, as well
If, as Stensland alleges, her termination resulted
doctrine”
to
serve
contemplated
as
a
narrow
28
26 - MEMORANDUM OPINION AND ORDER
by
the
Oregon
exception
courts
in
See Draper, 995
to
the
at-will
1
However, the tort of wrongful discharge was intended to
2
provide a remedy for unacceptable conduct only when no other
3
adequate remedy is available.
4
F. Supp. 2d 1214, 1220 (D. Or. 2006) (King, J.) (tort of wrongful
5
discharge “never was intended to be a tort of general application
6
but rather [is] an interstitial tort to provide a remedy when the
7
conduct in question was unacceptable and no other remedy was
8
available’”) (quoting Draper, 995 F. Supp. at 1128; additional
9
citation omitted).
interests
of
See Cantley v. DSMF, Inc., 422
If an existing remedy is adequate to protect
10
the
society,
11
discharge is precluded.
12
v. HSC Real Estate, slip op., No. CV08-1465-KI, 2010 WL 3222443, at
13
*3 (D. Or. Aug. 11, 2010) (King, J).
14
§ 1983 may provide such an adequate federal remedy, precluding a
15
state-law claim for wrongful discharge when the state-law claim and
16
the § 1983 claim are “based upon the same allegations.”
17
Draper, 995 F. Supp. at 1131.
18
employment discrimination also may provide an adequate remedy to
19
protect the interests of society in maintaining non-discriminatory
20
workplaces.
21
discrimination on the basis of race, color, religion, sex, sexual
22
orientation, national origin, marital status, or age).
See
ORS
then
the
tort
remedy
of
wrongful
See Draper, 995 F. Supp. at 1130-31; Ryan
§
A claim under 42 U.S.C.
See
Oregon law prohibiting unlawful
659A.030
(prohibiting
employment
23
In the present case, Stensland alleges she was wrongfully
24
discharged in retaliation for her attempts to enforce her rights
25
under ORS § 659A.030 and 42 U.S.C. § 1983.
26
allow
27
equitable relief, compensatory damages, and punitive damages.
28
ORS § 659A.881(1) & (3)(a); 42 U.S.C. § 1983.
a
successful
plaintiff
to
27 - MEMORANDUM OPINION AND ORDER
Both of these statutes
recover,
where
applicable,
See
Moreover, § 1983
1
constitutes the exclusive federal remedy for Stensland’s equal
2
protection claims.
3
701, 733, 109 S. Ct. 2702, 2722, 105 L. Ed. 2d 598 (1989) (“the
4
express cause of action for damages created by § 1983 constitutes
5
the exclusive federal remedy for violation of the rights guaranteed
6
in
7
Employment Dept., 509 F.3d 1065, 1068 (9th Cir. 2007) (citing
8
Jett).
§
1981
by
See Jett v. Dallas Indep. Sch. Dist., 491 U.S.
state governmental
units”);
Pittman
v.
Oregon,
9
As the Draper court noted, a § 1983 claim will not always
10
provide an adequate remedy to preclude a wrongful discharge claim.
11
For example, a § 1983 claim “is subject to unique defenses, such as
12
qualified immunity.”
13
the facts of this case, the court finds the state and federal
14
statutes do provide an adequate remedy, precluding Stensland’s
15
common-law wrongful discharge claim.
16
claims are “based upon the same allegations.”
17
prove substantially similar elements to prevail on either the
18
statutory claim or the common-law wrongful discharge claim.
19
will have to show that she engaged in a protected activity, and she
20
was
21
activity. Remedies available under the statutes and the common-law
22
claim also are the same.
23
§ 659A.030, the court may award equitable relief, compensatory
24
damages, and punitive damages.
25
are
26
discharge.”
27
(preponderance of the evidence) also is the same under both the
28
statutory and the common-law claim.
terminated
the
same
in
Draper, 995 F. Supp. at 1131.
retaliation
remedies
for
However, on
Her statutory and common-law
engaging
She will have to
in
the
She
protected
“For actions alleging violations of ORS
ORS § 659A.885(1) & 3(a).
available
for
Ryan, 2010 WL 3222443, at *3.
28 - MEMORANDUM OPINION AND ORDER
the
tort
of
These
wrongful
The standard of proof
1
Thus, because ORS § 659A.030 and 42 U.S.C. § 1983 provide an
2
adequate remedy at law for Stensland’s wrongful discharge claim,
3
she cannot maintain a common-law claim for wrongful discharge under
4
Oregon
5
Stensland’s Sixth Claim for Relief (Wrongful Discharge, against the
6
City) is granted.
law.
Therefore,
the
defendants’
motion
to
dismiss
7
8
D.
Section 1983 Claims
9
The defendant City of Wilsonville moves for summary judgment
10
on Stensland’s First and Second Claims for Relief against the City,
11
in which she asserts violations of 42 U.S.C. § 1983.
12
provides, in pertinent part:
13
14
15
16
17
18
19
Section 1983
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, subjects, or causes to be subjected,
any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
laws, shall be liable to the party injured in
an action at law, suit in equity, or other
proper proceeding for redress. . . .
42 U.S.C. § 1983 (1996).
20
“[M]unicipalities and other local governmental bodies are
21
‘persons’ within the meaning of § 1983 . . . [but] a municipality
22
may not be held liable under § 1983 solely because it employs a
23
tortfeasor.”
24
Brown, 520 U.S. 397, 403, 117 S. Ct. 1382, 1387-88, 137 L. Ed. 2d
25
626 (1997).
26
§ 1983 in one of the following three ways:
27
28
Board of County Comm’rs of Bryan County, Okla. v.
Stensland may establish the City’s liability under
First, [she] may prove that a city employee
committed the alleged constitutional violation
pursuant to a formal governmental policy or a
29 - MEMORANDUM OPINION AND ORDER
1
longstanding practice or custom which constitutes the standard operating procedure of the
[City]. . . .
Second, [she] may establish
that
the
individual
who
committed
the
constitutional tort was an official with final
policy-making
authority
and
that
the
challenged action itself thus constituted an
act of official governmental policy. . . .
Whether a particular official has final
policy-making authority is a question of state
law. . . .
Third, [she] may prove that an
official with final policy-making authority
ratified a subordinate’s unconstitutional
decision or action and the basis for it.
2
3
4
5
6
7
8
9
10
Gillette v.
Delmore,
979
F.2d
1342,
1346-47
(9th
Cir.
1992)
(internal quotation marks, citations omitted).
11
Stensland argues she has alleged facts sufficient for a jury
12
to render a verdict in her favor under all three of the Gillette
13
criteria.
14
and approved the actions of Fisher, Stone, and Bowers, and ratified
15
their unconstitutional actions by failing to investigate her claims
16
of harassment, discrimination, and hostile work environment.
17
claims this constituted a policy, custom, or longstanding practice
18
because her complaints regarding the unconstitutional activities
19
were ongoing over a long period of time, with ongoing acceptance
20
and ratification by officials with final policy-making authority,
21
including the City Manager, Arlene Loble.
22
See Dkt. #15, pp. 9-12.
She alleges the City endorsed
She
The defendants have the initial burden to prove the absence of
23
a genuine issue of material fact.
In re Oracle Corp., 627 F.3d at
24
387 (citation omitted).
25
[their] motion with affidavits or other similar materials negating
26
the opponent’s claim,” the court should not grant summary judgment
27
unless the record before the court “demonstrates that the standard
28
for the entry of summary judgment . . . is satisfied.”
Although the defendants need not “support
30 - MEMORANDUM OPINION AND ORDER
Celotex
1
Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91
2
L. Ed. 2d 265 (1986).
3
the
4
Stensland’s § 1983 claim against the City. Although they state, in
5
their brief, that City policy-making rests with the City Manager,
6
with approval of the City Council, see Dkt. #11, p. 10, they have
7
offered no evidence to support that statement, nor have they shown
8
that
9
Stensland alleges she was told by Bowers that the City Manager had
absence
the
of
a
final
Here, the defendants have failed to prove
genuine
issue
policy-making
to him
of
material
authority
regarding
not
delegated.
10
delegated
11
Stensland’s termination. See Dkt. #20, ¶ 19. “The substantive law
12
governing
13
material. . . .
14
affect the outcome of the claim, the court may grant summary
15
judgment.”
16
1261-SU, 2011 WL 5239732, at *2 (D. Or. Nov. 1, 2011) (Brown, J.)
17
(citing Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th
18
Cir. 2006)).
19
actually had policy-making authority for the City with regard to
20
investigations
21
particular instance, with regard to Stensland’s termination and the
22
basis for it, could affect the outcome of Stensland’s § 1983 claim
23
against the city.
a
claim
the decision-making
was
fact
or
defense
responsibility
determines
whether
a
regarding
fact
is
If the resolution of a factual dispute would not
Day v. United Parcel Serv., Inc., slip op., No. 09-CV-
Here, resolution of the factual issue regarding who
of
harassment
and
discrimination,
and
in
this
24
This analysis is illustrated by the U.S. Supreme Court’s
25
decision in Pembaur v. City of Cincinnati, 475 U.S. 469, 480-41,
26
106 S. Ct. 1292, 1298-99, 89 L. Ed. 2d 452 (1986), summarized by
27
the court in Williams v. Multnomah Education Service District, No.
28
31 - MEMORANDUM OPINION AND ORDER
1
CV-97-1197-ST, 1999 WL 454633 (D. Or. Apr. 14, 1999) (Stewart,
2
M.J.; opinion adopted in toto by Frye, J.), as follows:
3
In Pembaur, . . . the Supreme Court held
that a single decision by a municipal policymaker may be sufficient to trigger municipality liability under § 1983 as long as there
was a “ deliberate choice to follow a course
of action [] made from among various alternatives by the official or officials responsible
for establishing final policy with respect to
the subject matter in question.” However, the
municipal policymaker must have final authority to establish municipal policy. Authority
to make municipal policy may be granted by
state legislative enactment or may be delegated by an official with final policymaking
authority.
The Court provided an example
clarifying its ruling.
In the example, a
Board of County Commissioners sets the county
employment policy but allows the County
Sheriff discretion to hire and fire employees.
If the Sheriff exercises his discretion in an
unconstitutional manner, the county would not
be liable because the Board still controls
county policy. But if the Board had delegated
its power to establish final employment policy
to the Sheriff, then the Sheriff’s decisions
would represent county policy and the county
would be liable.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
Williams, 1999 WL 4546333, at *11.
In the present case, the record
18
is insufficient to prove who had final authority to establish the
19
City’s policy regarding the investigation of claims of harassment
20
and discrimination, the termination of employees within particular
21
departments, or whether the authority to terminate Stensland was
22
delegated to Bowers in this particular case.
23
Stensland also argues significant discovery remains to be
24
completed in this case, including depositions and outstanding
25
responses to discovery, and she asserts this additional discovery
26
concerns significant factual issues that likely will support her
27
claims.
28
Compel will be required to address Defendants’ objections to [her]
She represented in her brief that “it appears a Motion to
32 - MEMORANDUM OPINION AND ORDER
1
Requests for Production.”
2
waited almost three months after filing her brief, and two weeks
3
after oral argument, to file a motion to compel.
4
filed a motion under Federal Rule of Civil Procedure 56(d) to
5
request additional time to complete discovery necessary for her to
6
respond to the defendants’ motion for summary judgment.
7
Dkt. #15, pp. 2-3.
Nevertheless, she
She never has
Nevertheless, the court finds the current record is insuffi-
8
cient to support summary judgment.
On the current record, and
9
drawing all justifiable inferences in Stensland’s favor, she has
10
offered evidence from which a jury could render a verdict in her
11
favor on her § 1983 claim against the City.
12
City’s motion for summary judgment on Stensland’s First and Second
13
Claims for relief is denied.2
Accordingly, the
14
15
E.
Negligent Training and Supervision
16
The City moves for summary judgment on Stensland’s Third Claim
17
for Relief, in which she claims her constitutional rights were
18
violated due to the City’s deliberate indifference and failure to
19
“supervise,
20
regarding
21
procedures.”
22
this claim, arguing the claim is not adequately pled under § 1983,
23
and in any event, the City has no duty to train its employees with
24
regard to the City’s sexual harassment policies.
25
26
train
the
and
City’s
discipline
Fisher,
Anti-Harassment
Dkt. #1, ¶ 52.
Stone,
Policy
and
and
Bowers
reporting
The City also moves for dismissal of
Dkt. #11, p. 17.
Stensland has not responded to the City’s motion for summary
judgment on this issue.
She has responded to the motion to
27
2
28
But see the court’s ruling in section A, supra, regarding
those claims that arose prior to February 16, 2010.
33 - MEMORANDUM OPINION AND ORDER
1
dismiss, arguing her Third Claim for Relief is adequately pled
2
under § 1983, and case law supports denial of the City’s motion to
3
dismiss.
4
In City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S. Ct.
5
1197, 103 L. Ed. 2d 412 (1989), the U.S. Supreme Court held that
6
under certain circumstances, a municipality can be liable under
7
§ 1983 “for constitutional violations resulting from its failure to
8
train municipal employees.”
9
at 1200, 1204.
Id., 489 U.S. at 380, 387, 109 S. Ct.
However, the failure to train must, itself, result
10
in the constitutional deprivation suffered by the plaintiff, and
11
moreover, the municipality’s failure to train must “reflect[]
12
deliberate
13
inhabitants.”
14
where a municipality’s failure to train its employees in a relevant
15
respect evidences a ‘deliberate indifference’ to the rights of its
16
inhabitants can such a shortcoming be properly thought of as a city
17
‘policy or custom’ that is actionable under § 1983.”
18
at 389, 109 S. Ct. at 105.
19
more than, for example, “an otherwise sound program [that] has
20
occasionally been negligently administered.” Id., 489 U.S. at 391,
21
109 S. Ct. at 1206.3
indifference
to
the
constitutional
rights
Id., 489 U.S. at 392, 109 S. Ct. at 1207.
of
its
“Only
Id., 489 U.S.
This is a high standard, and requires
22
The evidence offered by Stensland in support of this claim
23
falls far short of that required to sustain a failure-to-train
24
claim under Harris.
Stensland has offered no evidence that the
25
26
27
28
3
The passage quoted by Stensland in support of her assertion
that “[t]here is a clearly adequate basis for the claim,” Dkt. #15,
p. 13, is not from the plurality opinion, but rather is from the
concurring opinion by Justice O’Connor, joined by Justices Scalia
and Kennedy. See Harris, 489 U.S. at 397, 109 S. Ct. at 1209.
34 - MEMORANDUM OPINION AND ORDER
1
City’s
failure
to
2
administration
3
policies resulted in the harassment and discrimination of which she
4
complains, or reflected deliberate indifference to the constitu-
5
tional rights of the City’s inhabitants.
6
plausibly suggest a claim entitling Stensland to relief, nor do
7
they show any genuine issue of material facts exists for trial.
8
The court, therefore, grants the City’s motion for summary judgment
9
as to Stensland’s Third Claim for Relief: Constitutional Rights
10
Violations by City of Wilsonville Due to Failure to Adequately
11
Train and Supervise.
12
dismiss this claim is found to be moot.4
of
train
its
or
supervise
anti-harassment
its
and
employees
in
the
anti-discrimination
The facts as pled do not
Accordingly, the defendants’ motion to
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
The court makes two additional observations regarding the
defendants’ motions on Stensland’s Third Claim for Relief. First,
in support of their motion to dismiss this claim, the defendants
rely heavily on a quote from Faragher v. City of Boca Raton, 524
U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998), for the
proposition that an anti-harassment policy is not necessary “as a
matter of law.” See Dkt. #11, p. 17. The Faragher Court observed,
“While proof that an employer had promulgated an antiharassment
policy with complaint procedure is not necessary in every instance
as a matter of law, the need for a stated policy suitable to the
employment circumstances may appropriately be addressed in any case
when litigating the first element of the defense.” Faragher, 524
U.S. at 807, 118 S. Ct. at 2293. The defendants have taken the
quote out of context. The Court did not hold that, as a matter of
law, an anti-harassment policy with complaint procedure is never
necessary; rather, the Court was expanding on the proof required to
sustain the two-part affirmative defense to liability or damages
described by the Court in the case. The Court made the point that
it will not always be necessary to prove “an employer had
promulgated an antiharassment policy with complaint procedure” in
order to prevail on the defense. See id.
Second, in support of their motion for summary judgment on
this claim, the defendants argue “the claim is prohibited by the
exclusive
remedy provision
contained
in Oregon’s
Workers
Compensation Law (ORS 656.018)[.]”
Dkt. #11, p. 11; see id.,
pp. 11-14. The argument presumably was based on a misunderstanding
of the nature of this inartfully-pled claim; Stensland did not
indicate clearly, in her Complaint, that this claim arises under
35 - MEMORANDUM OPINION AND ORDER
1
F.
Individual Defendants
2
Bowers and Stone move to dismiss Stensland’s First Claim for
3
Relief against them - the only claim she has brought against these
4
individual defendants.
5
Stensland has alleged they acted only in their official capacities
6
during the events giving rise to this action, and therefore, the
7
City is the only proper defendant. Stensland responds that she has
8
properly
9
capacities, under color of state law.
alleged
See Dkt. #1.
Bowers
and
Stone
Bowers and Stone argue
acted
in
their
individual
She further suggests that
10
should the court find her complaint deficient in this regard, the
11
deficiency may be cured by amendment.
12
Stensland has the burden to plead properly and to prove each
13
essential element of her § 1983 claim.
14
F.3d 1114, 1117 (9th Cir. 1997).
15
under section 1983, [Stensland] must plead two essential elements:
16
1) that the Defendants acted under color of state law; and 2) that
17
the Defendants caused [her] to be deprived of a right secured by
18
the Constitution and laws of the United States.”
19
Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir. 1983)).
20
has met both prongs of this pleading requirement in her Complaint.
21
The
cases
demonstrate
that
See Johnson v. Knowles, 113
“To state a claim for relief
historically,
Id. (citing
there
Stensland
has
been
22
considerable confusion among litigants when determining whether an
23
action is brought against individuals in their official capacity or
24
their individual capacity.
25
when an action is brought against a person acting in an official
The defendants correctly observe that
26
27
28
§ 1983. In any event, because the court grants the defendants’
motion for summary judgment as to Stensland’s Third Claim for
Relief on other grounds, the court does not address this argument.
36 - MEMORANDUM OPINION AND ORDER
1
capacity at the time of the alleged actions, then suit against the
2
governmental
3
equivalent to a suit against the governmental entity itself.”
4
Gomez v. Vernon, 255 F.3d 1118, 1126 (9th Cir. 2001) (citing
5
McRorie v. Shimoda, 795 F.2d 780, 783 (9th Cir. 1986)).
officer
in
the
officer’s
official
capacity
“is
6
The U.S. Supreme Court has examined the distinction between
7
individual-capacity (or personal-capacity) lawsuits and official-
8
capacity lawsuits, explaining that “[p]ersonal-capacity suits seek
9
to impose personal liability upon a governmental official for
10
actions he takes under color of state law. . . .
Official-capacity
11
suits, in contrast, ‘generally represent only another way of
12
pleading an action against an entity of which an officer is an
13
agent.’”
14
3105, 87 L. Ed. 2d 114 (1985) (quoting Monell v. New York City
15
Dept. of Soc. Servs., 436 U.S. 658, 660 n. 55, 98 S. Ct. 2018, 2035
16
n.55, 56 L. Ed. 2d 611 (1978)).
17
personal liability in a § 1983 action, it is enough to show that
18
the
19
deprivation of a federal right.”
20
at 3105 (emphasis by the Court; citing Monroe v. Paper, 365 U.S.
21
167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961)).
Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099,
official,
acting
under
“On the merits, to establish
color
of
state
law,
caused
the
Id., 473 U.S. at 166, 105 S. Ct.
22
Here, construing the Complaint in Stensland’s favor and taking
23
her factual allegations as true, see Gambee, supra, the court finds
24
Stensland has pled facts sufficient to allow the court to draw the
25
reasonable inference that the individual defendants are liable for
26
the misconduct alleged.
27
and
28
discrimination, and a hostile work environment created by Fisher’s
Bowers
were
aware
Stensland has pled facts indicating Stone
of
ongoing
37 - MEMORANDUM OPINION AND ORDER
harassment,
gender-based
1
actions,
2
properly, and took no action to remedy the situation.
3
alleged that her work load was reduced and she ultimately was
4
terminated in retaliation for her complaints.
5
these facts could give rise to liability under § 1983.
6
7
but
they
failed
to
investigate
Stensland’s
claims
She also has
If proved at trial,
The individual defendants’ motion to dismiss is, therefore,
denied.5
8
CONCLUSION
9
10
In summary, the court orders as follows:6
11
1.
Stensland has until January 16, 2012, to either amend her
12
Complaint to add the bankruptcy trustee as plaintiff with regard to
13
the pre-February 16, 2010, claims, or to have the bankruptcy
14
trustee ratify those claims by formally abandoning them as assets
15
of the bankruptcy estate. The court reserves ruling on Stensland’s
16
claims arising prior to February 16, 2010, until after January 16,
17
2012.
18
19
20
21
2.
The defendants’ motion for summary judgment is granted as
to Stensland’s Seventh, Eighth, Ninth, and Tenth Claims for Relief.
3.
The City’s motion to dismiss Stensland’s Third and Sixth
Claims for Relief is granted.
22
23
24
25
5
But, again, see the court’s ruling in section A, supra,
regarding those claims that arose prior to February 16, 2010.
26
6
27
28
This order addresses Stensland’s First, Second, Third, Sixth,
Seventh, Eighth, Ninth, and Tenth Claims for Relief.
The
defendants have not moved for summary judgment or dismissal as to
Stensland’s Fourth and Fifth Claims for Relief.
38 - MEMORANDUM OPINION AND ORDER
1
3.
Subject to any later ruling regarding Stensland’s pre-
2
February 16, 2010, claims, the City’s motion for summary judgment
3
as to Stensland’s First and Second Claims for Relief is denied.
4
4.
Subject to any later ruling regarding Stensland’s pre-
5
February 16, 2010, claims, the individual defendants’ motion to
6
dismiss Stensland’s First Claim for Relief against them is denied.
7
IT IS SO ORDERED.
8
Dated this 14th day of December, 2011.
9
/s/ Dennis J. Hubel
10
11
_____________________________________
Dennis James Hubel
Unites States Magistrate Judge
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
39 - MEMORANDUM OPINION AND ORDER
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