Davis v. Tri-County Metro. Transp. Dist. of Or.

• Decision Date: 08 September 2014
• Docket Number: Case No. 3:12–cv–0808–SI.
• Citation: 45 F.Supp.3d 1222
• Parties: Debra DAVIS, Plaintiff, v. TRI–COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, Defendant.
• Court: U.S. District Court — District of Oregon

45 F.Supp.3d 1222

Debra DAVIS, Plaintiff,

v.TRI–COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, Defendant.

Case No. 3:12–cv–0808–SI.

United States District Court, D. Oregon.

Signed Sept. 8, 2014

Motion granted in part and denied in part. Daniel Snyder, Carl Post, and Cynthia Gaddis, Law Offices of Daniel Snyder, Portland, OR, for Plaintiff.

Gregory E. Skillman and Kimberly Sewell, TriMet, Portland, OR, for Defendant.

OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

Plaintiff Debra Davis (“Davis”) asserts ten claims against her employer, Tri–County Metropolitan Transportation District of Oregon (“TriMet”).¹ Davis alleges that TriMet: (1) failed to give her the proper veteran's preference in hiring as required under Oregon Revised Statutes (“O.R.S.”) § 408.230; (2) discriminated and retaliated against her for filing a worker's compensation claim, in violation of O.R.S. § 659A.040; (3) failed to reemploy her in a suitable position, in violation of O.R.S. § 659A.046; (4) discriminated against her because of her disability, in violation of Oregon's Rehabilitation Act, O.R.S. § 659A.103 et seq. ; (5) discriminated and retaliated against her because of her race, in violation of O.R.S. § 659A.030; (6) discriminated against her because of her disability, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112; (7) retaliated against her because she engaged in activity protected under the ADA, in violation of the ADA; (8) violated her rights under the Family and Medical Leave Act (“FMLA”); (9) violated her rights under the Oregon Family Leave Act (“OFLA”); and (10) wrongfully discharged her in violation of Oregon common law.

TriMet moves for summary judgment against all of Davis's claims. For the reasons that follow, TriMet's motion is granted in part and denied in part. TriMet's motion is granted with respect to Davis's failure to reemploy claim and wrongful discharge claim. TriMet's motion with respect to the other eight claims is largely denied, although the Court grants Defendant's motion with respect to certain alleged adverse actions and other matters, as set forth below.

STANDARDS

A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir.2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and quotation marks omitted).

Where the non-moving party bears the burden of proof at trial, the movant need only point out an absence of evidence supporting the non-moving party's case to satisfy the movant's burden on summary judgment. Celotex Corp., 477 U.S. at 322–23, 106 S.Ct. 2548. After the moving party satisfies its initial burden, the burden shifts to the non-moving party to “ ‘designate specific facts showing that there is a genuine issue for trial.’ ” Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1189 (9th Cir.2013) (quoting Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548). The moving party is entitled judgment as a matter of law “[i]f the non-moving party fails to make this showing.” Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir.2006); Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 (“The moving party is ‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.”).

a. Whether TriMet was a “public employer” under the Veteran's Preference Statute throughout the relevant time period

TriMet asserts that before the Veteran's Preference Statute was amended in 2009, effective January 1, 2010, changing the definition of a “public employer,” TriMet was not a “public employer” under that statute and was therefore not required to provide Davis any veteran's preference points until January 1, 2010 and after.

In 2007 the Veteran's Preference Statute was amended, effective June 20, 2007. This amendment removed the requirement that veteran's preference points only had to be provided for positions in which a civil service examination was given, and added that veteran's preference points had to be provided by a “public employer” for a “vacant civil service position.” Or. Laws 2007, Ch. 525, §§ 1–2 (codified at former O.R.S. §§ 408.225(c) and 408.230 (2007)). With this amendment, a public employer was defined as “the state or any agency or political subdivision of the state....” Or. Laws 2007, Ch. 525, § 1 (codified at former O.R.S. § 408.225(c) (2007)).³ TriMet asserts that it is not a “political subdivision” of the state, but offers no authority for that proposition.

The Oregon statute relating to the creation and power of mass transit districts, although not specifically enumerating the Veteran's Preference Statute, defined a mass transit district at all relevant times as both a “public employer” and a “political subdivision” for certain enumerated Oregon statutes, without stating that those statutes are the only contexts in which a mass transit district serves in either of those capacities. O.R.S. § 267.200. Courts have found TriMet to be a political subdivision of the state outside the contexts of the statutes enumerated in § 267.200. See Gugler v. Baker Cnty. Educ. Serv. Dist., 305 Or. 548, 554, 754 P.2d 891 (1988) (discussing Girt v. Tri–Cnty. Metro. Transp. Dist. of Or., 4 Or. Tax 92, 1970 WL 598 (1970) and noting that because TriMet was a political subdivision of the state, it could levy a payroll tax under a statute that authorized a political subdivision to levy such a tax); Ballard v. Tri–Cnty. Metro. Transp. Dist. of Or., 2011 WL 1337090, at *18 (D.Or. Apr. 7, 2011) (finding TriMet exempt from the Labor Management Relations Act because it is a political subdivision of the state); Feist v. Dep't of Revenue, 18 Or. Tax 471, 475, 2003 WL 22319430 (Or.T.C.2003) (finding TriMet a political subdivision of the state for purposes of the Amtrak Act and stating that “[i]t is the court's conclusion that the Oregon Legislature intended mass transit districts like Tri–Met be considered political subdivisions of the state”). TriMet points to no case, and the Court has found none, where a court held that TriMet was not a political subdivision of the state.

Additionally, TriMet admitted in a Request for Admission (“RFA”) propounded by Davis during discovery that “[f]rom March 1, 2007 to the present [TriMet] was a political subdivision of the State of Oregon.” RFA 264. TriMet is bound by that admission. See Fed.R.Civ.P. 36(b). TriMet's argument that it did not need to give any veteran's preference points to Davis before January 1, 2010, because TriMet was not a political subdivision of the state and, thus, not a “public employer” for purposes of the Veteran's Preference Statute is, therefore, rejected. Under the circumstances of this case, the Court finds that throughout the relevant time period TriMet was a political subdivision of the state and thus a “public employer” for purposes of the Veteran's Preference Statute.

In addition to limiting the application of the Veteran's Preference Statute to “public employers,” the statute also limits its applicability to a “vacant civil service position.” TriMet argues that because it did not use civil service examinations it did not have “civil service positions” as required in the Veteran's Preference Statute. This argument also is unavailing. When the Veteran's Preference Statute was amended in 2007, it expanded its applicability to civil service positions that did not require a civil service examination. ⁴ Thus, the fact that TriMet does not use civil service examinations does not mean that its positions are not civil service positions. TriMet offers no authority, and the Court has found none, supporting TriMet's proposition. The term “civil service position” was not defined in the statute until 2010, but the fact that “civil service position” was not defined in the statute until 2010 does not mean that before that date it had the meaning attributed to it by TriMet.

Webster's Third New International Dictionary defines civil service as, among other things, “the whole body of public servants employed by a government other than those in the armed services.” Webster's Third New International Dictionary 413 (3d ed.2002). As discussed above, TriMet was a political subdivision of the state of Oregon for purposes of the Veteran's Preference Statute. And, as conceded by TriMet, mass transit districts are defined as a “unit of local government.” O.R.S. § 267.200. Thus, TriMet is a branch of government other than the armed services, and its employees are therefore civil servants. Additionally, the text and context of the Veteran's Preference Statute, as amended in 2007, demonstrate that the amendment was intended to broaden the statute's reach beyond positions in which a civil service examination was given. Further, when “civil service...