Dinicola v. State

• Decision Date: 31 August 2016
• Docket Number: A150967
• Citation: 280 Or.App. 488,382 P.3d 547
• Parties: Joseph M. Dinicola, Plaintiff–Appellant, v. State of Oregon, and Oregon University System, Defendants–Respondents. State of Oregon, and Oregon University System, Third–Party Plaintiffs, v. Service Employees International Union, Local 503; and Oregon Public Employees Union, Third–Party Defendants–Respondents.
• Court: Oregon Court of Appeals

280 Or.App. 488
382 P.3d 547

Joseph M. Dinicola, Plaintiff–Appellant,
v.
State of Oregon, and Oregon University System, Defendants–Respondents.

State of Oregon, and Oregon University System, Third–Party Plaintiffs,
v.
Service Employees International Union, Local 503; and Oregon Public Employees Union, Third–Party Defendants–Respondents.

A150967

Court of Appeals of Oregon.

Argued and submitted September 15, 2015.
August 31, 2016

Kevin T. Lafky Salem, argued the cause for appellant. With him on the briefs was Lafky & Lafky.

James S. Coon, Portland, argued the cause for respondents Service Employees International Union Local 503, and Oregon Public Employees Union. With him on the brief was Swanson Thomas, Coon & Newton.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent State of Oregon.

No appearance for respondent Oregon University System.

Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.^*

TOOKEY, J.

280 Or.App. 490

Plaintiff appeals the judgment dismissing his complaint alleging that defendants State of Oregon and Oregon University System (OUS) violated federal and state statutes by retaliating against plaintiff because he had previously filed overtime wage claims against the state. DiNicola v. State of Oregon , 246 Or.App. 526, 268 P.3d 632 (2011), rev. den. , 352 Or. 377, 290 P.3d 813 (2012), cert. den. , ––– U.S. ––––, 134 S.Ct. 724, 187 L.Ed.2d 579 (2012).¹ The main issue on appeal is whether our holding in DiNicola, that plaintiff was not employed by the state, precludes plaintiff from relitigating that issue in this current proceeding. The state and third-party defendant Service Employees International Union, Local 503 (Local 503),² moved to dismiss all

382 P.3d 550

of plaintiff's claims in his first amended complaint, pursuant to ORCP 21 A(8), arguing that plaintiff had no valid claims against the state, because the trial court's decision in DiNicola, which we later affirmed on appeal, established conclusively for this proceeding that the state was not plaintiff's employer and, as a matter of law, the antiretaliation statutes only protect an employee from retaliation by one's employer.³ The trial court agreed, entering judgment against plaintiff on that basis. For the reasons set forth below, we affirm the judgment of the trial court.

I. FACTS

We recite the facts consistent with the standard of review for an ORCP 21 A(8) dismissal, and “we accept all

280 Or.App. 491

well-pleaded allegations of the complaint as true and give plaintiff[ ] the benefit of all favorable inferences that may be drawn from the facts alleged.” Stringer v. Car Data Systems, Inc. , 314 Or. 576, 584, 841 P.2d 1183 (1992). We disregard any allegations that state conclusions of law.⁴ Tomlinson v. Metropolitan Pediatrics, LLC , 275 Or.App. 658, 670–71, 366 P.3d 370 (2015), rev. allowed , 359 Or. 847 (2016).

In 1986, the state hired plaintiff as an employee with OUS and, in 1987, plaintiff transferred to the Oregon Department of Revenue (Revenue). Since February 1987, plaintiff has been classified as a “state permanent classified regular status” employee and, under that designation, is considered a “non-exempt” hourly employee. On multiple occasions, plaintiff was compensated, at his discretion, for each overtime hour worked with time and a half cash or compensatory time “in lieu of overtime pay.”

In 2004, plaintiff was elected president of Local 503 and, under the collective bargaining agreement (CBA) between the state and Local 503, plaintiff could not be terminated as an employee of the state or have any benefit of state employment reduced as a consequence of his becoming president of Local 503. Nevertheless, as president of Local 503, plaintiff had full-time duties to the union. Thus, state representatives, Local 503's executive director, Leslie Frane, and plaintiff all signed “Agreement #1281,” which authorized plaintiff to act as “union president on release time” from the state. Under the agreement, plaintiff retained “all rights, benefits and privileges of his current position and classification, * * * [and remained] in his permanent classification [and was] granted any/all salary adjustments for which he [was] eligible.” The agreement further provided

280 Or.App. 492

that plaintiff was to turn into “[the state] each month a timesheet that record[ed] all time worked [for Local 503] and appropriate leave taken.” The timesheet, according to the agreement, was to be signed by the union supervisor. The state was to pay plaintiff according to the timesheets turned in and, within 30 days of that payment, Local 503 was to reimburse the state for “payment of salary, benefits, paid leave time, pension and all other employer-related costs,” including

382 P.3d 551

“[a]ll overtime, compensatory time earned and travel expenses.”

Local 503 also agreed to “indemnify and hold [the state] harmless against any and all claims, damages, suits or other forms of liability which may arise out of any action taken or not taken by [the state] for the purpose of complying with the agreement.”

Although Agreement #1281 required a union supervisor signature on the timesheets, in practice, Frane, who acted also as union supervisor, did not sign the timesheets before plaintiff turned them into the state. Frane also instructed plaintiff to record on the timesheets no more than 40 hours of time worked per week, regardless of how many hours plaintiff actually worked. Frane assured plaintiff that Local 503 would take care of plaintiffs “comp time” and told plaintiff to report all hours he worked on a separate set of books maintained by Local 503.

In February 2007, plaintiff advised Frane that he intended to submit to the state revised and accurate timesheets—from November 2004 to February 2007—reflecting his actual hours worked, including overtime. Frane refused to sign the timesheets until she had spoken with Local 503's attorney. Plaintiff turned in the timesheets without Frane's signature and, in April 2007, the state denied plaintiff's request for overtime cash or compensatory time, referring to correspondence the state had received from Local 503's attorney. Plaintiff filed suit against the state a month later, claiming entitlement to overtime compensation under state wage laws and under the Federal Labor Standards Act (FLSA), 29 USC §§ 201 to 219. The state, in turn, filed a third-party complaint against Local 503.

280 Or.App. 493

Thereafter, some members and leaders of Local 503 began voicing opposition to plaintiff's overtime claims. Through means of the state and OUS email systems, these union members sent emails to state employees who were also members of Local 503, encouraging Local 503 members “to visit * * * non-union websites, such as ‘joemustgo.info.’ ” At least one email that threatened harm to plaintiff by a Local 503 leader was broadly distributed via Local 503, state, and OUS email systems. Other emails sent through the state email systems advocated for plaintiff's recall or resignation as president of Local 503. Petitions were circulated in state buildings claiming that plaintiff's actions “represent[ed] a classic breach” of his duties as Local 503's president.

Pursuant to the CBA, the state allowed its employees to access Local 503's website through state computers and allowed use of a state agency's email messaging system for union messages to union members. Nevertheless, the CBA also prohibited some types of union communication, such as political statements, and prohibited use of the state agency email system to make “false, unlawful, offensive or derogatory statements against any person, organization or group of persons.” The CBA also prohibited statements containing “profanity, vulgarity, sexual content, character slurs, threats or threats of violence.” The state routinely enforced the CBA's prohibition of state email systems being used for political statements by the union, but the state did nothing to prevent the use of state email systems to disseminate union statements against plaintiff and his overtime wage claims, even when the state's counsel became aware of the union emails being transmitted through the state's email system.

While his FLSA overtime wage claim was pending, plaintiff brought this action against the state, alleging, pursuant to ORS 652.355, ORS 659A.230, ORS 659A.030, ORS 659A.203, and section 15(a)(3) of the FLSA, 29 USC § 215(a)(3) (section 15(a)(3) ), that the state had unlawfully retaliated against plaintiff for having filed overtime wage claims against the state. The state, in turn, filed a third-party complaint against Local 503, raising claims of common law and contractual indemnity.

280 Or.App. 494

In plaintiff's separate wage-claim action against the state for unpaid overtime wages, meanwhile, the state had filed a motion for summary judgment, arguing that, for purposes of...