Siring v. Oregon State Board of Higher Education
Filing
45
OPINION and ORDER - The Court orders that Judge Stewart's findings and recommendation, Dkt. 39 , are ADOPTED. Defendant's Motion for Summary Judgment, Dkt. 24 , is GRANTED IN PART and DENIED IN PART as follows: (1) the Motion for Summary Judgment is GRANTED as to the Third, Fourth, and Fifth Claims (alleging retaliation) only to the extent that they are based on actions taken after Plaintiff's March 2010 email, which is not a protected activity, and after Plaintiff file d her Tort Claim Notice and BOLI complaint in July 2010 due to lack of causation; (2) the Motion for Summary Judgment is DENIED as to those portions of the Third, Fourth, and Fifth Claims (alleging retaliation) to the extent they are based on actions taken after Plaintiff sent her May 24, 2010 letter; and (3) the Motion for Summary Judgment is DENIED as to the remaining claims. Ordered by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ROSEMARY SIRING,
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Plaintiff,
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v.
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OREGON STATE BOARD OF HIGHER )
EDUCATION, acting by and through
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EASTERN OREGON UNIVERSITY,
)
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Defendant.
)
____________________________________)
No. 3:11-cv-1407-ST
OPINION AND ORDER ADOPTING
FINDINGS AND RECOMMENDATION
SIMON, District Judge.
Magistrate Judge Janice M. Stewart issued findings and recommendation in the abovecaptioned case on October 3, 2012. Dkt. 39. Judge Stewart recommended that Defendant’s
Motion for Summary Judgment, Dkt. 24, be GRANTED IN PART and DENIED IN PART.
Defendant timely filed objections. Dkt. 41. Plaintiff has responded to those objections. Dkt. 43.
Under the Federal Magistrates Act (“Act”), the court may “accept, reject or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party files objections to a magistrate’s findings and recommendations, “the
court shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).
The Court has reviewed de novo those portions of Judge Stewart’s findings and
recommendation to which Defendant has objected, as well as Defendant’s objections and
Plaintiff’s response. The Court has also reviewed both the Declaration of Cody J. Elliott dated
October 22, 2012 (Dkt. 42), which accompanied Defendant’s Objections, and the Declaration of
Craig A. Crispin dated November 5, 2012 (Dkt. 44), which accompanied Plaintiff’s Opposition
to Defendant’s Objections. Although these declarations were not before Judge Stewart, this
Court may “receive further evidence” in the course of reviewing a Magistrate Judge’s findings
and recommendations. 28 U.S.C. § 636(b)(1). Plaintiff states that “[t]his extraordinary
procedure has not been found by plaintiff to have previously been used to supplement a summary
judgment record within this District or even within this Circuit.” Pl.’s Opp’n at 10 n.3. Plaintiff
may have overlooked Hamilton v. Silven, Schmeits & Vaughan, P.C., Case No. 2:09-cv-01094SU, 2011 WL 6888564, at *6 (D. Or. Dec. 23, 2011) (citing Spaulding v. University of
Washington, 676 F.2d 1232, 1235 (9th Cir. 1982) (court may hold new hearing and take new
evidence)). Having reviewed the parties’ submissions and declarations de novo, the Court agrees
with Judge Stewart’s reasoning and adopts those portions of the findings and recommendation.
For those portions of a magistrate’s findings and recommendations to which neither party
has objected, the Act does not prescribe a standard of review. Indeed, where there are no
objections, “[t]here is no indication that Congress . . . intended to require a district judge to
review a magistrate’s report[.]” Thomas v. Arn, 474 U.S. 140, 152 (1985); see also United States
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), cert. denied, 540 U.S. 900
OPINION & ORDER – Page 2
(2003) (the court must review de novo magistrate’s findings and recommendations if objection is
made, “but not otherwise”). Although review is not required in the absence of objections, the
Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or
any other standard.” Thomas, 474 U.S. at 154. Furthermore, the Advisory Committee Notes to
Fed. R. Civ. P. 72(b) recommend that “[w]hen no timely objection is filed,” the court review the
magistrate’s findings and recommendations for “clear error on the face of the record.”
For those portions of Judge Stewart’s findings and recommendation to which neither
party has objected, this Court follows the recommendation of the Advisory Committee and
reviews those matters for clear error on the face of the record. No such error is apparent.
Therefore the Court orders that Judge Stewart’s findings and recommendation, Dkt. 39,
are ADOPTED. Defendant’s Motion for Summary Judgment, Dkt. 24, is GRANTED IN PART
and DENIED IN PART as follows: (1) the Motion for Summary Judgment is GRANTED as to
the Third, Fourth, and Fifth Claims (alleging retaliation) only to the extent that they are based on
actions taken after Plaintiff’s March 2010 email, which is not a protected activity, and after
Plaintiff filed her Tort Claim Notice and BOLI complaint in July 2010 due to lack of causation;
(2) the Motion for Summary Judgment is DENIED as to those portions of the Third, Fourth, and
Fifth Claims (alleging retaliation) to the extent they are based on actions taken after Plaintiff sent
her May 24, 2010 letter; and (3) the Motion for Summary Judgment is DENIED as to the
remaining claims.
Dated this 29th day of November, 2012.
/s/ Michael H. Simon_____
Michael H. Simon
United States District Judge
OPINION & ORDER – Page 3
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