Wilson v. State of Oregon et al

Filing 70

ORDER: Granting in Part Denying in Part State defendants' Motion for Partial Summary Judgment 44 ); Denying Plaintiff's Motion to Strike 51 ; Denying Plaintiff's Motion for Leave to File Amended Complaint/Petition 55 . Signed on 11/22/2011 by Chief Judge Ann L. Aiken. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

SUSAN K. WILSON, an individual,
Plaintiff,

v.
STATE OF OREGON; THEODORE
KULONGOSKI, Governor of Oregon;
JOHN KROGER, Attorney General of
the State of Oregon; SCOTT HARRA,
Director, Oregon Department of
Administrative Services; CLAUDIA
BLACK, Health Policy Advisor to
the Governor; TONY GREEN,
Director of Communications and
Policy for Oregon Dept. of
Justice; DONNA SANDOVAL BENNETT,
Assistant Attorney General; and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 503; CHRISTINA
McCALLISTER; TIMOTHY MOLLOY;
CERYNTHIA MURPHY; SAMANTHA
PATNODE; LAWRENCE PECK; and
CALLIE ZINK, individuals,
Defendants.
Roger Hennagin
Roger Hennagin, P.C.
S North State Street, Suite 300
Lake Oswego, OR 97034
Attorney for Plaintiff
1 - OPINION AND ORDER

Civ. No. 10-6393-AA
OPINION AND ORDER

Stephen E. Dingle
Senior Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorney for State of Oregon Defendants
AIKEN, Chief Judge:
Plaintiff Susan Wilson filed suit against the State of Oregon,
the former Gcvernor and other state officials and employees (State
defendants), the Service Employees International Union, Local 503
(Local 503), an Oregon public employees union, and individual union
members.

Plaintiff alleges violations of her

process rights pursuant to 42 U.S.C.
wrongful

discharge,

employment.

and

§

intentional

constitutio~al

due

1983, breach of contract,
interference

with

her

Certain State defendants move for partial summary

judgment with respect to plaintiff's first three claims for relief,
and plaintiff moves for leave to amend her complaint.
reasons set forth below,

State defendants'

For the

Motion for Partial

Summary Judgment (doc. 44) is granted in part and denied in part,
and plaintiff's Motion to Amend Complaint (doc. 55) is denied.
BACKGROUND
Plaintiff was employed with the state of Oregon as Director of
the Oregon Health Licensing Agency (OHLA)
March 5, 2009.
but

the

from July 1, 1999 to

Plaintiff was appointed by then-Governor Kitzhaber,

Director

of

the

Oregon

Department

of Administrative

Services (DAS) later became her appointing authority.
at

3.

Scott Harra was

2 - OPINION AND ORDER

the

Director of DAS

at

pl.'s Decl.
the

time of

plainti

's discharge.

Id.

In February 2003, then-Governor Kulongoski instituted a new
directive requiring agencies to streamline their operations and
reduce impacts of governmental regulation on Oregon businesses.

In

2005, Kulongoski issued a second regulatory streamlining directive.
In 2007, Kulongoski instructed health-related agency directors to
ensure the enforcement of Oregon's consumer protections laws.
With the assistance of her administrative services director,
Richard McNew, plaintiff initiated a planning process to achieve
compliance with the Governor's regulatory streamlining objectives.
The plan involved reorganization of the agency and reassignment of
OHLAstaff.

The hiring of additional temporary staff was required

to accomplish these tasks.
Defendants McCallister, Molloy, Murphy,

Patnode,

Peck,

and

Zink complained to Local 503 representatives that plaintiff engaged
in

nepotism

and

misconduct.

Plaintiff

alleges

that

these

complaints were motivated by defendants' displeasure regarding the
proposed reorganization of OHLA and potential reassignments.
Local 503 representatives relayed these complaints to the
Governor's office and the Attorney General's office.
plaintiff

maintains

that

Local

503

unlawfully

In doing so,
bypassed

the

grievance process pursuant to the collective bargaining agreement
between Local 503 and the State.

Further, plaintiff alleges that

State officials did not notify plaintiff of the complaints.

3 - OPINION AND ORDER

In late January 2009, Local 503 officials, representatives
from the Governor's office and DAS, and several OHLA employees met
to discuss the complaints against plaintiff and McNew.

Plaintiff

alleges that she was not afforded the opportunity to address the
staff grievances.
On February 2, 2009, plaintiff was placed on administrative
leave pending an investigation of the allegations concerning her
performance.
Judg. at 3.

Dfs.' Memo. in Support of Motion for Partial Summ.
Later that day, the Governor's office issued a press

release stating that plaintiff had been placed on administrative
leave

while

investigated.
On

charges

of

misconduct

and

nepotism

were

being

Pl.'s Decl. at 6.

February

3,

2009,

published

reports

stated

that

the

Governor's office ·take[s] these allegations very seriously.H
On February 4, 2009, the Attorney General's spokesperson, Tony
Green, publicly stated that plaintiff was being investigated for
·wrongdoing." Id.
On March 5, 2009, Harra notified plaintiff that she was being
permanently discharged.
name-clearing hearing.

at 7.
Dfs.'

Plaintiff was never offered a

Memo.

in Support of Motion for

Partial Sumrn. Judg. at 3.
STANDARD
Summary judgment is appropriate • if the movant shows that
there is no genuine dispute as to any material fact and the movant

4 - OPINION AND ORDER

is entitled to judgment as a matter of law."
56(a).

Fed. R. Ci v.

P.

Motions for partial summary judgment are evaluated using

the same standard.

Id.

The Court's role is not "to weigh the

evidence and determine the truth of the matter, but to determine
whether there is a genuine issue for trial."
Lobby,

Inc.,

477 U.S.

242,

249

(1986).

Anderson v. Liberty

A dispute involving a

material fact is "genuine" where "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson 477 U.S. at 248.

A "material fact" is one that has "the

potential to affect the outcome of the suit under the applicable
law." Nereida-Gonzalez v, Tirado-Delgado, 990 F,2d 701, 703 (1st
Cir.

1993),

The materiality of a fact

substantive law governing the claim,

is determined by the

T,W, Elec, Serv"

Inc, v,

Pac, Elec, Contractors Ass'n, 809 F,2d 626, 630 (9th Cir. 1987).
The moving party has the burden of informing the court of the
basis for its motion and demonstrating the absence of a genuine
issue of material fact.
323 (1986),

Celotex Corp. v. Catrett, 477 U,S. 317,

Upon the moving party's meeting that burden, the non-

moving party must then go beyond the pleadings and identify facts
which show a genuine issue of fact for trial,

Celotex, 477 U.S. at

324,
Special rules of construction apply to evaluating summary
judgment motions: (1) all reasonable doubts as to the existence of
genuine issues of material fact should be resolved against the

5 - OPINION AND ORDER

moving

party;

and

(2)

all

inferences

to

be

drawn

from

the

underlying facts must be viewed in the light most favorable to the
nonmoving party.

T.W., 809 F.2d at 630.
DISCUSSION

I.

State Defendants' Motion for Partial Summary Judgment
Certain State defendants,

Kulongoski,

Kroger,

including the State of Oregon,

Bennett, Black, Green,

and Harra, move for

partial summary judgment as to plaintiff's first three claims for
relief.
In her first claim, plaintiff alleges that Kulongoski denied
plaintiff her constitutional right to a name-clearing hearing and
published false allegations against her without conducting a fair
and thorough investigation.

Plaintiff also alleges that Kroger

failed to advise Kulongoski of plaintiff's right to a name-clearing
hearing or insure that plaintiff was provided a name-clearing
hearing.

Plaintiff's second claim is against the State of Oregon,

Kulongoski, Kroger, Bennett, Black, Green, and Harra for conspiracy
to deny her a name-clearing hearing in violation of

§

1983.

Plaintiff's third claim is against the State of Oregon for breach
of

contract,

alleging that

the

State breached its employment

contract with plaintiff when she was discharged as a direct result
of her compliance with, and execution of, the Governor's executive
orders and directives.

6 - OPINION AND ORDER

A. The State of Oregon is dismissed from plaintiff's first
two claims for relief.
Plaintiff concedes that the State of Oregon is not a proper
party to a

§

1983 claim.

See Will v. Michigan Dep't of State

Police, 491 U.S. 58, 71 (1989) (states are not "persons" within the
meaning of 42 U. S. C.

§

1983,

and therefore cannot be sued for

violation of civil rights under color of state law).
State defendants'

Accordingly,

motion to dismiss the State of Oregon from

plaintiff's first and second claims is granted.
B. Kulongoski and Kroger are dismissed from both plaintiff's
first and second claims for relief; Bennett. Black. and Green
are dismissed from plaintiff's second claim for relief.
With respect to the remaining defendants in plaintiff's first
two claims for relief,

State defendants argue that Kulongoski,

Kroger, Bennett, Black, and Green all lacked authority to "cause"
the constitutional injury to plaintiff, because no statute or rule
exists which authorizes them to offer plaintiff a name-clearing
hearing.

As to Harra,

State defendants maintain that he was

authorized to grant plaintiff a name-clearing hearing but that a
sufficient causal connection between Harra's wrongful conduct and
the constitutional violation is lacking.

I agree in part.

Plaintiff's first two claims are based on failures to act.

In

order to be liable for the deprivation of a constitutional right,
within the meaning of

§

1983, State defendants must have "cause [d]"

the constitutional injury to plaintiff.

Failing to perform when

one is legally required to do so may "cause" constitutional injury
7 - OPINION AND ORDER

within the meaning of
(9th Cir.
1976) ).

1978)

§

1983.

Johnson v. puffy, 588 F.2d 740, 743

(citing Sims v.

Adams 537

F.2d 829

(5th Cir.

Furthermore, plaintiff argues that in order to be liable

for inaction,

~[wlitho1ding

comments, advice or action when there

is a duty to act has to suffice."

PI.'s Opp.,p. 8.

Therefore,

plaintiff's first and second claims are based on the existence of
a duty to act and defendants'
However,

subsequent failure to do so.

if one lacks authority to "cause" the constitutional

injury, failure to perform cannot violate

§

1983 as a matter of

law.

See Gratsch v. Hamilton County, 12 Fed. Appx. 193, 206 (6th

Cir.

2001)

(holding that where defendant

lacked authority to

provide pre-termination hearing, defendant cannot be liable under
§

1983 for failure to provide such a hearing).

As such, both the

first and second claims require evidence of each State defendants'
authority to offer plaintiff a name-clearing hearing.
Plaintiff fails to provide

~ significant

probative evidence" in

support of her assertion that Kulongoski, Kroger, Bennett, Black,
and Green each possessed authority to grant plaintiff a nameclearing hearing.

Anderson, 477 U.S. at 249.

Neither Bennett nor

the Oregon Department of Justice has authority to offer a nameclearing hearing to employees of other agencies.
2.

Bennett Decl., p.

Plaintiff's conc1usory assertion that Kroger and Bennett's

involvement extended beyond

advising

and

consulting

does

establish their authority to grant a name-clearing hearing.

8 - OPINION AND ORDER

not

PI.'s

Decl., pp. 4, 9.

While Or. Rev. Stat. 180.060(6) and (7) grant the

Attorney General authority to, "when requested, perform all legal
services for the state or any department or officer of the state,"
plaintiff offers no evidence that Kroger, as an attorney advising
a client, can force the Governor or other State official to choose
a particular course of action.

Furthermore, based on this court's

ruling on Plaintiff's Motion to Compel (doc. 62), there can be no
evidence

concerning

provided.

what

Likewise,

advice,

if

any,

Kroger

or

Bennett

plaintiff's assertion that she only

received instructions regarding her duties from two sources, one of
which

was

Governor

Kulongoski's

office,

is

insufficient

to

establish Kulongoski's authority to grant a name-clearing hearing.
As to Black and Green, plaintiff offers no evidence establishing
the authority of Black and Green to offer plaintiff a name-clearing
hearing.
Regarding

Harra,

State

defendants

concede

that

he

had

authori ty to grant plaintiff a name-clearing hearing,

and that

plaintiff was never offered a name-clearing hearing.

However,

State defendants argue Harra cannot be held liable because he did
not publish the allegedly stigmatizing statements.

I disagree and

find a genuine issue of material fact as to Harra's personal
involvement in the constitutional deprivation.

Because it is not

the publication of stigmatizing information, but "the denial of the
name-clearing hearing that causes the deprivation of the liberty

9 - OPINION AND ORDER

interest without due process,"

Brown v. City of Niota, 214 F. 3d

718, 722-23 (6th Cir. 2000), Harra may be liable under a theory of
supervisory

liability

if

he

was

personally

involved

in

the

consti tutional deprivation or if there was a sufficient causal
connection between Harra's wrongful conduct and the constitutional
violation.
1989) .

See Hansen v. Black,

Moreover,

885 F.

2d 642,

646

(9th Cir.

Harra is not required to have published the

stigmatizing information about plaintiff - it is sufficient that
another officer or employee of the State of Oregon is alleged to
have done so.

See Wisconsin v. Constantineau, 400 U.S. 433, 437

(1971) (where government action injured reputation, opportunity to
be heard is prescribed);
796

(5th Cir.

1983)

~

also In re Selcraig, 705 F. 2d 789,

(explaining that "the fourteenth amendment

provides [] procedural protection against injury inflicted by state
officers

to

the

interest

state

employees

have

in

their

reputation") .
Therefore, because State defendants establish that no genuine
issue of material fact exists as to Kulongoski, Kroger, Bennett,
Black, and Green,

but fail to so establish as to Harra,

State

defendants' Motion for Partial Summary Judgment is granted in part
and denied in part.
C.
State defendants' motion to dismiss plaintiff's third
claim for relief is denied.
Plaintiff's third claim for relief alleges that the State of
Oregon breached plaintiff's employment agreement when it discharged
10- OPINION AND ORDER

plaintiff as a direct result of her compliance with, and execution
of,

the

Governor's

executive

orders

and

directives.

State

defendants argue that plaintiff's third claim should be dismissed,
based on her concession in response to Local 503' s Motion to
Dismiss that she was not a beneficiary of the collective bargaining
agreement.

I disagree.

Plaintiff

asserts

that

her

third

claim is

based on two

separate contracts: a collective bargaining agreement between the
State of Oregon and Local 503 and an employment contract between
the State of Oregon and plaintiff.

The collective bargaining

agreement with Local 503 constitutes only one prong of this
pronged approach."

PI.' s Opp., p. 10.

~two­

The other prong, which

plaintiff has not withdrawn, alleges that plaintiff's employment
contract with the State of Oregon also consisted of her agreement
to manage OHLA consistently with the Governor's directives and
instructions.

Am. CampI.

~

65.

This prong alleges that plaintiff

complied with those instructions and directives and that her doing
so initiated the staff complaints for which she was discharged.

In

other words, plaintiff argues that she was fired for following the
Governor's directives, in breach of her employment agreement with
the State of Oregon.
State defendants' motion to dismiss plaintiff's third claim
for relief is therefore denied on this ground.

11

OPINION AND ORDER

II.

Plaintiff's Motion to Amend Complaint
Plaintiff requests leave to amend her complaint to allege that

current State defendant Kroger violated 42 U.S.C.

§

1983 when he

failed to offer plaintiff a name-clearing hearing.
Under Federal Rule of Civil Procedure l5(a), leave to amend
pleading "shall be given freely when justice so requires."

The

court may consider several factors when considering a motion to
amend:

(1)

undue delay;

(2)

bad faith;

opponent; and (4) futility of amendment.
119 F.

3d 1385, 1392

(9th Cir. 1997).

(3)

prejudice to the

Sweaney v. Ada County,
Here,

I find amendment

futile in light of my ruling on State defendants' motion to dismiss
Kroger from plaintiff's first and second claims for relief, and
plaintiff's proposed amendments do not alter my analysis.

I also

find that plaintiff failed to confer as required by Local Rule 7-1.
Therefore, plaintiff's motion to amend her complaint is denied.
CONCLUSION
For the reasons discussed above, State defendants' Motion for
Partial Summary Judgment (doc. 44) is GRANTED in part and DENIED in
part.

Plaintiff's Motion to Amend Complaint (doc. 55) is DENIED.

Plaintiff's Motion to Strike (doc. 51) is DENIED.
IT IS SO ORDERED.
Dated this

t1D

~~ day of November, 2011.

~rliuu

Ann Aiken
United State District Judge
12- OPINION AND ORDER