Young Bolek v. City of Hillsboro, et al
Filing
89
ORDER: The Court ADOPTS Magistrate Judge Beckerman's Findings and Recommendation 80 and, therefore, GRANTS Defendants' Motion for Summary Judgment 43 as to all of Plaintiff's claims, DENIES Plaintiff's Motion for Partial Summary Judgment 46 , and DISMISSES this matter with prejudice. IT IS SO ORDERED. Signed on 2/13/2017 by Judge Anna J. Brown. (gw)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
CYNTHIA YOUNG BOLEK,
3:14-cv-00740-SB
Plaintiff,
ORDER
v.
CITY OF HILLSBORO, an Oregon
Municipal corporation; RON
LOUIE, an individual; STEVE
GREAGOR, an individual; and
MICHAEL BROWN, an individual,
Defendants.
BROWN, Judge.
Magistrate Judge Stacie Beckerman issued Findings and
Recommendation (F&R) (#80) on November 14, 2016, in which she
recommends the Court grant Defendants' Motion for Summary
Judgment
(#43), deny Plaintiff's Motion for Partial Summary
Judgment
(#46), and dismiss this matter.
Plaintiff filed timely
Objections to the Findings and Recommendation.
1 - ORDER
The matter is now
before this Court pursuant to 28 U.S.C.
§
636(b) (1) and Federal
Rule of Civil Procedure 72(b).
When any party objects to any portion of the Magistrate
Judge's Findings and Recommendation, the district court must make
a de nova determination of that portion of the Magistrate Judge's
report.
28 U.S.C.
F.3d 930, 932
§
636(b) (1).
See also Dawson v. Marshall, 561
(9th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en bane).
DISCUSSION
I .
Background
Plaintiff Cynthia Young Bolek alleges numerous claims
against the City of Hillsboro and a single claim against the
three individual Defendants Ron Louie, Steve Greagor, and Michael
Brown arising out of her employment with the City.
Amended Complaint (#8)
In her First
Plaintiff asserts the following claims:
First and Second Claims: 1 Retaliation for reporting
matters of public concern in violation of 42 U.S.C.
§ 1983;
Third Claim:
Retaliation by a public employer in
violation of Oregon Revised Statute § 659A.203;
Fourth Claim:
Retaliation for whistleblowing in
violation of Oregon Revised Statute § 659A.199;
Fifth Claim:
1
Retaliation for opposing unlawful
Except for her Second Claim, which is brought against the
individual Defendants, Plaintiff brings all of her claims against
the City only.
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employment practices in violation of Oregon Revised
Statute § 659A.030 (1) (f);
Sixth Claim:
Retaliation for whistleblowing in
violation of Oregon Revised Statutes § 659A.230;
Seventh Claim:
Gender discrimination in violation of
Oregon Revised Statute § 659A.030; 2
Eighth Claim:
Interference with leave rights pursuant
to the Family Medical Leave Act (FMLA), 29 U.S.C.
§ 2601, et seq.;
Ninth Claim:
Retaliation for use of leave pursuant to
the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601,
et seq.;
Tenth Claim:
Interference with leave rights pursuant
to the Oregon Family Leave Act (OFLA), Oregon Revised
Statutes§ 659A.190, et seq.;
Eleventh Claim:
Retaliation for use of leave pursuant
to the Oregon Family Leave Act (OFLA), Oregon Revised
Statutes § 659A.190, et seq.;
Twelfth Claim:
Disability discrimination and/or
retaliation pursuant to Oregon Revised Statute
§ 659A.130-145; and
Thirteenth Claim:
distress.
Intentional infliction of emotional
The Magistrate Judge accurately summarizes the facts
underlying this case, and the Court accepts that summary.
The
Court, however, reiterates the following facts that are
specifically pertinent to the parties' Motions:
Plaintiff has been a Support Services Division Manager with
the Hillsboro Police Department since 2001 and reports directly
2
Plaintiff has withdrawn her Seventh Claim for gender
discrimination against the City.
3 - ORDER
to the police chief.
cardiac arrest.
In December 2012 Plaintiff suffered a
Plaintiff was eventually cleared to work from
home on a limited basis.
Plaintiff was also cleared by her
doctor to participate in meetings with the department's senior
officials at the office.
The City approved intermittent medical
leave for Plaintiff, including flexible work hours and the
ability to work from home.
At the heart of Plaintiff's claims is a meeting that
occurred on May 6, 2013.
Plaintiff alleges at this meeting
Defendant Ron Louie, who was acting as interim Chief of Police,
announced to the group that he intended to "reorganize" the
police-department management team, remove Plaintiff's
responsibilities, reassign Plaintiff's subordinates to other
managers, and change Plaintiff's supervisory structure so that
she reported directly to one of her peers rather than to the
police chief.
According to Plaintiff Defendant Louie yelled
profanities at Plaintiff during the meeting and also told her she
was done and "didn't need to be there."
Plaintiff was humiliated
and devastated by this conduct because she believed she was being
demoted.
When Plaintiff asked Louie if they could discuss the
issue privately, Louie refused and stated he was making this
change for Plaintiff's own good because of her medical condition.
Louie later acknowledged his conduct was "insulting," that his
demeanor "unacceptable," that he was "pissed," and that his body
4 - ORDER
language was "forceful."
F&R at 2-4, 6-7.
Defendants move for summary judgment as to all claims
asserted against them, and Plaintiff moves for partial summary
judgment as to her First, 3 Third, Fourth, Fifth, Sixth, Eighth,
Tenth, Eleventh, and Twelfth Claims.
As noted, the Magistrate Judge recommends the Court grant
Defendants' Motion for Summary Judgment and deny Plaintiff's
Motion for Partial Summary Judgment.
II.
General Objections
In her Objections the Plaintiff raises "general objections"
to the F&R based on the arguments raised in her Motion and during
oral argument before the Magistrate Judge.
This Court has carefully considered Plaintiff's general
objections and concludes they do not provide a basis to modify
the Findings and Recommendation.
The Court also has reviewed de
nova the pertinent portions of the record and does not find any
error in the Magistrate Judge's Findings and Recommendation.
III. Specific Objections
Plaintiff asserts the following "specific objections" to the
Findings and Recommendation and contends the Magistrate Judge
erred when she (1) incorrectly applied the legal standard in her
analysis of Plaintiff's retaliation claims and determined
Plaintiff did not suffer an adverse-employment action;
3
Plaintiff has now withdrawn her First Claim.
5 - ORDER
(2)
incorrectly concluded the facts did not support a retaliatory
adverse-employment action;
(3) improperly ignored the conclusions
of the City's investigation report, which included a finding of
misconduct by Defendant Louie;
(4) incorrectly found the City's
subsequent investigation of Plaintiff's claims was not a "sham"
and did not constitute an adverse-employment action;
(5) applied
the incorrect legal standard when determining Plaintiff's federal
and state family-leave claims; and (6) construed Oregon law too
narrowly when considering Plaintiff's intentional infliction of
emotional distress claim.
A.
Adverse Action
Plaintiff contends the Magistrate Judge incorrectly
applied the controlling legal standard when she determined
Defendants' actions did not constitute an adverse-employment
action as a matter of law.
Plaintiff concedes the Magistrate
Judge stated the correct legal standard as follows:
With regard to what qualifies as an adverse
employment action to prove a retaliation claim, a
plaintiff "must show that a reasonable employee
would have found the challenged action materially
adverse," which means that the action "might have
'dissuaded a reasonable worker from making or
supporting a charge of discrimination.'"
F&R at 25-26 (citing Burlington Northern and Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68
(2006)).
The White court further stated:
"Whether a particular [action] is materially adverse depends upon
the circumstances of the particular case, and should be judged
6 - ORDER
from the perspective of a reasonable person in plaintiff's
position, considering all the circumstances."
Id. at 69.
Plaintiff argues the Magistrate Judge failed to apply
this standard correctly when the Magistrate Judge concluded an
adverse-employment action did not exist based on the fact that
Plaintiff was not "personally" dissuaded from making challenges
of discrimination or asserting her rights due to Defendants'
actions.
The record reflects the Magistrate Judge thoroughly
reviewed the facts and, based on "the particular circumstances
under which they occur[red]," concluded "none of the alleged
adverse-employment actions alleged by [Plaintiff], either
singularly or in combination, rise to the level of material
adversity."
The Court has carefully reviewed de novo the pertinent
portions of the record and concludes the Magistrate Judge
correctly applied the legal standard to the facts of this case.
Accordingly, the Court does not find any error in the Magistrate
Judge's Findings and Recommendation as to this issue.
B.
Sufficiency of Defendants' Conduct
Plaintiff next contends the Magistrate Judge
incorrectly concluded the facts surrounding the meeting on May 6,
2013, were insufficient to constitute evidence of a retaliatory
adverse-employment action.
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Title VII "does not set forth a general civility code
for the American workplace."
Burlington N.,
548 U.S. at 68.
Not
all conduct in the workplace rises to the level of an adverseemployment action.
See Hellman v. Weisberg, 360 F. App'x 776,
779 (9th Cir. 2009) (holding that employer threatening plaintiff
with termination and criminal prosecution did not constitute a
materially adverse-employment action since plaintiff was not
fired or prosecuted).
See also Cates v. PERS of Nevada, 357 F.
App'x 8, 10 (9th Cir. 2009) (affirming district court's grant of
summary judgment on plaintiff's FMLA claims because "[t]he
limited reassignment of [plaintiff's] email and custom
correspondence duties as well as her retirement counseling
coordinator duties constituted an insignificant change in her
employment status and did not individually or cumulatively
constitute an adverse employment action").
Although Plaintiff alleges she was humiliated and
demeaned by Louie's conduct, the Magistrate Judge concluded the
circumstances of the May 6, 2013 meeting, including the fact that
Louie's conduct could be considered "mean," were insufficient to
establish a materially adverse-employment action.
F&R at 29.
The Court has reviewed de nova the pertinent portions
of the record and finds the Magistrate Judge thoroughly reviewed
the record and applied the correct legal standard when she
determined Louie's conduct in the meeting on May 6, 2013, did not
8 - ORDER
constitute an adverse-employment action.
Accordingly, this Court
does not find any error in this aspect ofthe Magistrate Judge's
Findings and Recommendation.
C.
The City's Investigation
Plaintiff also asserts "the City purposefully pretended
to investigate" her claim.
original).
Pl.'s Opp. at 43 (emphasis in
Plaintiff characterizes the City's investigation as a
sham or phoney investigation and contends it was, therefore, an
adverse-employment action because, among other things, it
discouraged future complaints.
In addition, Plaintiff contends
the Magistrate Judge mistakenly equated the "sham" investigation
with a "bad" investigation when she determined there was not an
adverse-employment action.
The Magistrate Judge pointed out that "it is undisputed
the City conducted a timely independent investigation into
[Plaintiff's] allegation of retaliation."
F&R at 34.
The
Magistrate Judge noted, however, that "[t]he fact that
[Plaintiff] disagrees with the methods or conclusions of the
independent investigator, or the number of interviews he
conducted, is not a basis for a retaliation claim against the
City.
Accordingly, the investigation was not a
'sham,' and did
not rise to the level of an adverse employment action."
See Cox
v. Onondaga Cty. Sheriff's Dep't, 760 F.3d 139, 146 (2d Cir.
2014) (finding that an employer's investigation of a harassment
9 - ORDER
complaint "without more-that is, without additional
particularized facts evidencing a retaliatory intent and
resulting in, or amounting to, adverse job consequences for the
complainant-cannot sustain a valid retaliation complaint")).
After a de nova review of the pertinent portions of the
record, the Court does not find any error in this aspect of the
Magistrate Judge's Findings and Recommendation.
D.
The City's Investigation Report
With respect to the Investigation Report following the
City's investigation, Plaintiff contends the Magistrate Judge
improperly disregarded the conclusions therein.
In that report
the City found Defendant Louie's conduct "could support an
allegation of discrimination" that "potentially interfer[ed]"
with Plaintiff's rights.
Plaintiff argues these findings are
binding; are admissible statements against the City; support
summary judgment in her favor; or, at the least, create a genuine
dispute of material fact.
Defendants, in turn, contend the City's investigation
report reflects legal conclusions by the City's attorney that are
not admissible evidence, are not binding as judicial statements,
and do not create a genuine dispute of material fact.
In Sullivan v. Dollar Tree Stores, Inc., the Ninth
Circuit addressed for the first time whether legal conclusions in
an official report are admissible as "findings of fact."
10 - ORDER
The
court held "pure legal conclusions are not admissible as factual
findings," and, "[i)n the context of a summary judgment motion, a
conclusion of law by a third-party investigator does not, by
itself, create a genuine issue of material fact for the obvious
reason that a legal conclusion is not a factual statement."
F. 3d 770, 777
623
(2010).
In her analysis of these Motions the Magistrate Judge
agrees with Defendants that the findings of the City's report
"are not factual admissions but rather legal conclusions which do
not bind the court."
After a de nova review of the pertinent portions of the
record, the Court does not find any error in the Magistrate
Judge's Findings and Recommendation as to this issue.
E.
FMLA Interference Claim
Plaintiff also contends the Magistrate Judge applied a
subjective rather than an objective legal standard to Plaintiff's
Eighth and Tenth Claims based on Defendants' interference with
Plaintiff's rights under FMLA and OFLA.
In particular, Plaintiff
asserts the Magistrate Judge failed to consider the allegedly
improper motive behind Defendant Louie's attempt to "demote"
Plaintiff or to interfere with her medical leave rights by
changing her job duties while she was on medical leave.
The Magistrate Judge recommends dismissal of
Plaintiff's Tenth Claim for interference with Plaintiff's rights
11 - ORDER
under OFLA on the ground that such a claim for relief is not
cognizable under OFLA.
Plaintiff does not challenge this basis
for dismissing her Tenth Claim.
Under FMLA an employee may bring a claim when the
employer "interfer[es] with, restrain[s], or den[ies] the
exercise of or the attempt to exercise, any right provided" by
FMLA.
29 U.S.C.
§
2615(a) (1).
Pursuant to Department of Labor
regulations, "interference" includes not only refusing to
authorize leave, but also discouraging an employee from using
such leave.
29 C.F.R.
§
825.220(b).
In addition, employers
cannot use the taking of FMLA leave "as a negative factor in
employment actions."
29 C.F.R.
§
825.220(c).
The Magistrate Judge found FMLA allows a transfer of
duties while an employee is on leave; considering all of the
circumstances, the City did not take an adverse-employment action
against Plaintiff as a result of the May 6, 2013, meeting; and
the City provided Plaintiff with all FMLA entitlements.
After a de nova review of the pertinent portions of the
record, the Court concludes the Magistrate Judge correctly
applied the proper legal standard to the facts of this case.
Accordingly, the Court does not find any error in the Magistrate
Judge's Findings and Recommendation as to this issue.
F.
Intentional Infliction of Emotional Distress
Finally, Plaintiff contends the Magistrate Judge
12 - ORDER
construed Oregon law too narrowly in her analysis of Plaintiff's
intentional infliction of emotional distress claim (IIED).
To establish a claim for IIED in Oregon a plaintiff
must prove:
(1) defendant intended to cause plaintiff severe
emotional distress or knew with substantial certainty that its
conduct would cause such distress;
(2) defendant engaged in
outrageous conduct (i.e., conduct extraordinarily beyond the
bounds of socially tolerable behavior); and (3) defendant's
conduct, in fact,
caused plaintiff severe emotional distress.
See McGanty v. Staudenraus, 321 Or. 532, 543 (1995).
Based on the circumstances of this case, the Magistrate
Judge found Defendant Louie's conduct toward Plaintiff was
"insensitive and meann and "unpleasant and unprofessional,n but,
nevertheless, "do[es] not rise to the level of 'outrageous' or
beyond the bounds of socially appropriaten even when viewed in
the light most favorable to Plaintiff.
Whether conduct constitutes an actionably outrageous
transgression of social norms is based on a fact-specific, caseby-case analysis.
Zeggert v. Summit Stainless Steel, LLC, No.
3:13-CV-00016-PK, 2014 WL 3512497, at *7-8
(citing Lathrope-Olson v. Dep't of Transp.,
(1994)).
(D. Or. July 10, 2014)
128 Or. App. 405,
408
Although a jury usually determines whether and the
extent to which social norms have been violated, when the court
functions as a gatekeeper in the context of a dispositive motion
13 - ORDER
against an intentional infliction of severe emotional distress
claim, the court must assess whether plaintiff's evidence is
sufficient to satisfy each of the elements of such a claim.
Zeggert, 2014 WL 3512497, at *7-8 (citing Pakos v. Clark, 253 Or.
113 (1969)).
review denied,
See also House v. Hicks,
218 Or. App. 348, 358,
345 Or. 381 (2008).
The Court notes in every case in which the Oregon
appellate courts have allowed an emotional distress claim to
proceed to a jury, the employer had engaged in conduct that was
more than aggravating, insensitive, petty, irritating, perhaps
unlawful, or mean.
In some cases the employer engaged in or
threatened to engage in unwanted physical contact of a sexual or
violent nature (see Lathrope-Olson v. Dep't of Transp., 128 Or.
App. 405 (1994) (threatening to push the plaintiff into the path
of oncoming vehicles)); used derogatory racial, gender, or ethnic
slurs usually accompanied by some other aggravating circumstance
(see Whelan v. Albertson's, Inc., 129 Or. App. 501 (1994) (manager
repeatedly referred to the plaintiff as a "queer" and imitated
his allegedly effeminate characteristics)); exposed the plaintiff
to actual physical danger (see Babick v. Oregon Arena Corp.,
Or. 401
(2002)
333
(released intoxicated and violent concert-goers
who had been detained by the plaintiffs)); repeatedly subjected
the plaintiff to verbal abuse, forced her to do work from which
she was medically exempted, and forced her to engage in illegal
14 - ORDER
conduct
(see Schoen v. Freightliner LLC, 224 Or. App. 613
(2008) (called the plaintiff "worthless" almost daily, assigned
work that exceeded her medical limitations, and ordered the
plaintiff to collect illegal "football pool" bets)); or involved
acts of psychological and physical intimidation, racism, or
sexual harassment (see Kraemer v. Harding, 159 Or. App. 90
(1999) (continuing accusations that a school bus driver was a
child sex-abuser after multiple investigations concluded there
had not been any inappropriate conduct)).
See also Wheeler v.
Marathon Printing, Inc., 157 Or. App. 290 (1998) (co-worker
continued "sadistic" harassment including sexual intimidation and
insults even after the plaintiff attempted suicide); Mains v. II
Morrow, Inc., 128 Or. App. 625 (1994) (daily physical assaults and
sexual comments by supervisor); Franklin v. Portland Comty.
Coll., 100 Or. App. 465 (1990) (supervisor called an AfricanAmerican male by the name "boy," issued false reprimands, shoved
him, locked him in an office, suggested he apply elsewhere for
employment, and otherwise subjected the plaintiff to "verbal and
physical abuse") .
In Watte v. Edgar Maeyens, Jr., M.D., P.C., the
Defendant directed plaintiffs to hold hands with two of their coworkers, demanded that they surrender their keys, paced tensely
in front of them with clenched hands, accused them of being liars
and saboteurs, terminated their employment, refused to explain
15 - ORDER
his conduct, and rashly ordered them off the premises.
In
finding that even this degree of inappropriate conduct did not
rise to the level of socially intolerable conduct sufficient for
an IIED claim, the court stated:
"Socially intolerable conduct is conduct that is
'outrageous in the extreme.'
Patton v. J.C.
Penney Co., 301 Or. 117, 124 (1986).
Conduct that
is merely 'rude, boorish, tyrannical, churlish and
mean,' [Id.], does not satisfy that standard, nor
do 'insults, harsh or intimidating words, or rude
behavior ordinarily * * * result in liability even
when intended to cause distress.'
Hall v. The May
Dept. Stores, 292 Or. 131, 135 (1984)."
112 Or. App. 234, 237 (1992)
In Clemente v. State of Oregon an employee was
"subjected to an insensitive, mean-spirited supervisor who might
have engaged in gender-based, discriminatory treatment."
The
court held those facts were not sufficiently aggravating to
establish a prima facie case for IIED, especially in the absence
of evidence that the employee was "verbally, sexually, or
physically abused or harassed," "exposed to violence," or
"repeatedly and viciously ridiculed."
227 Or. App. 434, 443
(2009).
After a de nova review of the record viewed in the
light most favorable to Plaintiff, the Court concludes the facts
do not create a jury question under the rigorous standard of
conduct required for an intentional infliction of emotional
distress claim.
16 - ORDER
Thus, the Court concludes the Magistrate Judge
correctly applied the legal standard to the facts of this case,
and, accordingly, the Court does not find any error in the
Magistrate Judge's Findings and Recommendation in this respect.
CONCLUSION
The Court ADOPTS Magistrate Judge Beckerman's Findings and
Recommendation (#80) and, therefore, GRANTS Defendants' Motion
for Summary Judgment (#43) as to all of Plaintiff's claims,
DENIES Plaintiff's Motion for Partial Summary Judgment (#46), and
DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 13th day of February, 2017.
17 - ORDER
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