Draper v. Astoria School Dist. No. 1C, 97-354-MA.

• Decision Date: 12 February 1998
• Docket Number: No. 97-354-MA.,97-354-MA.
• Parties: Lois DRAPER, Plaintiff, v. ASTORIA SCHOOL DISTRICT NO. 1C, et al., Defendants.
• Court: U.S. District Court — District of Oregon

995 F.Supp. 1122

Lois DRAPER, Plaintiff, v. ASTORIA SCHOOL DISTRICT NO. 1C, et al., Defendants.

No. 97-354-MA.

United States District Court, D. Oregon.

February 12, 1998.

COPYRIGHT MATERIAL OMITTED

Steve Brischetto, Portland, OR, for plaintiff.

Thomas S. Moore and Stefan W. Farr, Portland, OR, for defendants.

ORDER

MARSH, District Judge.

Magistrate Stewart filed her Findings and Recommendation on January 15, 1998. The matter is now before me. See 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). No objections have been timely filed. This relieves me of my obligation to give the factual findings de novo review. Lorin Corp. v. Goto & Co., Ltd., 700 F.2d 1202, 1206 (8th Cir. 1983); see also Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983) Having reviewed the legal principles de novo, I find no error.

Accordingly, I ADOPT Magistrate Stewart's Findings and Recommendation that defendants' motion for partial summary judgment be granted in part and denied in part as follows: (1) denied as to claim one (42 U.S.C. § 1983); (2) granted as to claim two (ORS 659.510) to the extent that the claim for punitive damages is stricken and otherwise denied; (3) granted as to claim three (Wrongful Discharge) on the basis that the individual employees are not proper defendants and § 1983 provides an adequate remedy.

CONCLUSION

Based on the foregoing, I ADOPT Magistrate Stewart's Findings and Recommendation (# 49).

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATIONS

STEWART, United States Magistrate Judge.

INTRODUCTION

Plaintiff Lois Draper ("Draper") brings this action against defendant Astoria School District No. 1C ("School District") and three School District employees, defendants Beverly Reichen, Beverly Sept, and Len Carpenter. Draper alleges claims for violation of 42 USC § 1983 (deprivation of First Amendment rights under color of state law) and ORS 659.510 (Oregon "Whistle Blower" law), and for common law wrongful discharge. This court has jurisdiction over the federal law claim under 28 USC § 1331, and supplemental jurisdiction over the state law claims under 28 USC § 1367. Presently before the court is defendants' motion (docket # 29) for partial summary judgment. For the reasons set forth below, this court recommends that the motion be granted in part and denied in part.

STANDARDS

FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party shows the absence of an issue of material fact, the nonmoving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id at 324. A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.1989).

The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). The court must view the inferences drawn from the facts in the light most favorable to the nonmoving party. Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id at 630-31. However, when the nonmoving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics Inc., 818 F.2d 1466, 1470 (9th Cir. 1987), cert denied, 484 U.S. 1006, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988). The Ninth Circuit has stated, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id at 1468.

DISCUSSION

I. Background

Plaintiff Draper was employed as a special education teacher for defendant Astoria School District from December 1993 until September 1995, and also during part or all of the 1996-97 school year. At all relevant times, defendant Reichen was the School District's Director of Special Education, defendant Sept was Principal of Astoria Middle School, and defendant Carpenter was Superintendent of the School District. Draper was not a tenured teacher. Rather, she was employed under a succession of renewable one-year contracts. She also was covered by a collective bargaining agreement ("CBA").

Draper allegedly became a burr under defendants' collective saddles because she repeatedly complained about inadequate programs, supplies, funding, and related matters, and informed the parents of students with disabilities about certain legal rights they had in connection with special education programs. Draper alleges defendants then targeted her for harassment, which resulted in her filing nine labor grievances in a comparatively brief period of time.

On or about September 14, 1995, defendant Carpenter recommended, and the School Board then voted, to terminate Draper's contract, allegedly because she had failed to timely complete course work required to maintain her certification as a special education teacher. Draper attributes the delay to health problems stemming from defendants' campaign of harassment against her. Draper also contends that the certification problem was merely a pretext to conceal defendants' discriminatory motive for terminating her. She alleges that the School District previously had endorsed requests by other similarly situated teachers for an emergency certification pending completion of the required course work but refused to do the same for her because of defendants' discriminatory animus. In November 1995, defendant allegedly refused to offer Draper employment for which she was qualified and had applied, electing instead to re-advertise the position.

Draper filed a labor grievance. In May 1996, an arbitrator ruled in Draper's favor and ordered her reinstated with back pay. It appears that Draper was re-hired for the 1996-97 school year. On March 10, 1997 Draper filed this action. Shortly thereafter, Draper resigned her employment with the School District. Draper does not contend that she was terminated or constructively discharged in 1997, but does seek, inter alia, damages for "diminished earning capacity" attributable to emotional distress allegedly caused by defendants' conduct.

II. Wrongful Discharge (Third Claim)

A. Individual Defendants

The individual defendants seek summary judgment on the third claim on the basis that the School District is the only proper party in an action subject to the Oregon Tort Claims Act ("OTCA"), ORS 30.260 to ORS 30.300. Draper argues that the OTCA is inapplicable to this claim because the individual defendants were acting outside the scope of their employment or duties. However, the question is moot since, under Oregon law, the employer is the only proper defendant in a claim for common law wrongful discharge. Schram v. Albertson's, Inc., 146 Or.App. 415, 426, 934 P.2d 483 (1997) (individual supervisors are not personally liable). Consequently, this claim must be dismissed as to defendants Carpenter, Reichen, and Sept.

B. Damages Against the School District

The OTCA bars an award of punitive damages in an action against a public body for claims within the scope of the OTCA. ORS 30.270(1) and (2). A common law tort claim for wrongful discharge is subject to the OTCA. See ORS 30.260(8), 30.265(1). Accordingly, the prayer for punitive damages on this claim must be stricken. In addition, the amount of compensatory damages that plaintiff may recover on this claim is limited by the OTCA's cap on damages set forth in ORS 30.270.

C. Preemption

The School District contends that the wrongful discharge claim is preempted by § 301 of the National Labor Relations Act, 29 USC § 185(a) ("NLRA"), because Draper was covered by and pursued her remedies under the collective bargaining agreement. Oregon courts have previously rejected this very argument. Coulter v. Construction & General Laborers Union Local 320, 107 Or. App. 522, 812 P.2d 850 (1991), held that a wrongful discharge claim is not preempted by a collective bargaining agreement because the right in question did not arise from that agreement and the parties could not have lawfully bargained for an employee to be sexually harassed.

Whether a federal law preempts a state law ultimately is a question of federal law (although the federal court may properly consider any limiting construction the state courts have given to the challenged state law). See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213-14, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). Consequently, the Oregon court's decision in Coulter is not binding here. Nevertheless, this court is persuaded by Coulter's reasoning on this particular point. Resolution of this case does not turn upon an interpretation of the collective bargaining agreement. Moreover, since the right in question is one of paramount public policy in this state, for the protection of which the Oregon courts have fashioned a remedy in tort rather than let it go unprotected, the right is not one that could be "bargained away by [Draper's] Union in return for an extra twenty-five cents an hour in wages or two additional days of sick leave." Krahel v. Owens-Brockway Glass Container, Inc., 971 F.Supp. 440, 452 (D.Or.1997). Thus, the wrongful discharge claim is not preempted by § 301 of the NLRA.

D. Failure to State a Claim

The School District argues, in various fashions (e.g., preemption, res judicata, etc.), that Draper cannot pursue a wrongful discharge claim because she has already obtained a remedy through the grievance process. Although not specifically phrased as such, defendant is essentially questioning whether a common law wrongful...