Durham v. City Of Portland

• Decision Date: 12 October 2001
• Docket Number: A109538
• Citation: 181 Or. App. 409,45 P.3d 998
• Parties: GLENDA P. DURHAM, Appellant, v. CITY OF PORTLAND, a municipal corporation; and ROBERT PHILLIPS, Respondents.
• Court: Oregon Court of Appeals

181 Or. App. 409

45 P.3d 998

GLENDA P. DURHAM, Appellant,

v.CITY OF PORTLAND, a municipal corporation and ROBERT PHILLIPS, Respondents.

A109538

COURT OF APPEALS OF OREGON

Argued and Submitted: October 12, 2001

Filed: May 8, 2002

Thane W. Tienson argued the cause for appellant. With him on the briefs was Landye Bennett Blumstein LLP.

Jenifer Johnston, Deputy City Attorney, argued the cause and filed the brief for respondents.

Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges.

KISTLER, J.

This is the fourth action that plaintiff has brought against her former employer, the City of Portland, and her former supervisor, Robert Phillips. In this action, plaintiff alleged that the City had discriminated against her because she was a woman and that it had retaliated against her for complaining about its employment practices. She also alleged that Phillips had assaulted her. The trial court dismissed plaintiff's assault claim and granted summary judgment on her discrimination and retaliation claims. We affirm.

In 1994, plaintiff began work as a human resource analyst in the City's affirmative action office. ¹ Phillips was the director of that office. On April 1, 1995, various people approached plaintiff during a meeting and expressed interest in the office. Plaintiff referred them to Phillips. Shortly afterwards, Phillips walked up to plaintiff and "socked her" on the arm, apparently in response to plaintiff's having referred people to him. Plaintiff reported the incident to her immediate supervisor. The supervisor confronted Phillips, who denied hitting plaintiff.

In December 1995, plaintiff was involved in a car accident. Shortly after that she underwent surgery and chemotherapy for breast cancer. She was out of work for several months, recovering from both the accident and the surgery. In May 1996, her doctor released her to return to work on a part-time basis. Plaintiff asked Phillips if she could work part time in the office and part time from her home, an arrangement approved by her doctor so long as she installed ergonomic workstations in her home and her office. Phillips accepted her part-time office work arrangement. He told plaintiff, however, that they needed to develop a work agreement, pursuant to department policy regarding plaintiff's request to work part time at home.

While plaintiff and Phillips were trying to arrange a work agreement, plaintiff came to believe that Phillips wasattempting to prevent her return to work by failing to accommodate her request for an ergonomic work station, a flexible work schedule, and telecommuting privileges. She filed a complaint with the Bureau of Labor and Industries (BOLI) in July 1996. In October 1996, she filed an action in state court against Phillips and the City (State I). She alleged that Phillips and the City had violated former ORS 659.030 ²because they had discriminated against her in the terms and conditions of employment and had threatened to fire her if she "continued in her efforts to establish a safe, ergonomic work station at her home." Plaintiff also brought an assault claim against both the City and Phillips, alleging that Phillips was acting within the course and scope of employment when he hit her on the arm in April 1995.

While State I was pending, the City experienced financial problems and made major budget cuts. In its 1997-1998 budget, the City eliminated the human resource analyst position in the affirmative action office--the position that plaintiff held. Plaintiff's job was eliminated, and she was laid off.

After plaintiff was laid off, she agreed to voluntarily dismiss her action in State I so that she could file a new state court action, adding claims arising out of her termination. Plaintiff filed a second complaint with BOLI and also a second state court action (State II). In State II, she added an allegation that a substantial factor in her termination was "retaliation and reprisal" for, among other things, her opposition to practices forbidden by state and federal law prohibiting discriminatory treatment on the basis of sex. All told, plaintiff alleged seven claims for relief arising out of the City and Phillips' employment practices. The City moved for summary judgment on plaintiff's first three claims for relief. The trial court granted the motion ruling that those claims were untimely. ³ After that ruling, four claims for relief remained, one of which was plaintiff's assault claim against Phillips.

Plaintiff agreed to dismiss the remaining state law claims so that she could add them to a complaint that she had filed in federal court while State II was pending. In federal court, plaintiff alleged numerous federal-and state-law claims against Phillips and the City. Three of her federal-law claims for relief are relevant to this appeal. In her amended federal complaint, plaintiff alleged that the City had discriminated against her in the terms and conditions of her employment in violation of Title VII of the Civil Rights Act, 42 USC § 2000e. She also alleged that the City had discriminated against her in violation of 42 USC § 12201 because she had complained about Phillips' assaultive behavior. Finally, plaintiff alleged that the City had retaliated against her in violation of Title VII. Specifically, she alleged that the City had created a hostile work environment and terminated her employment in retaliation for "bringing a civil proceeding against both defendants City of Portland and Phillips, and by participating in an investigation of defendant Phillips conducted by" the City. Only one of her state-law claims in the federal action is relevant to our analysis. Plaintiff alleged, among other things, an assault claim against Phillips but this time she alleged that Phillips was not acting within the scope of his employment when he hit her. The federal district court granted summary judgment on plaintiff's federal claims. It declined to exercise supplemental jurisdiction over her state claims and dismissed them.

After the district court dismissed plaintiff's state claims, she filed a new action in state court (State III), alleging three claims for relief. Her first claim for relief alleged an assault claim against Phillips. Her second claim for relief was based on ORS former 659.030. In that claim, she alleged that the City had discriminated against her in the terms and conditions of her employment and that it had terminated her because she had filed a complaint alleging sex discrimination. Plaintiff's third claim for relief echoed the second aspect of her second claim for relief. She alleged that the City had violated former ORS 659.550 ⁴ by "creating a hostile workenvironment and ultimately terminating her from employment" because she filed a civil proceeding against Phillips and the City.

The trial court dismissed plaintiff's assault claim because it was barred by the two-year statute of limitations. It also granted summary judgment on plaintiff's sex discrimination and retaliation claims. Plaintiff has appealed, raising three assignments of error.

In her first assignment of error, plaintiff argues that her assault claim is not time barred. Plaintiff does not dispute that her assault claim in State III was filed beyond the applicable two-year statute of limitations. She argues, however, that her assault claim in State III relates back to her timely assault claim in State I, either by agreement or by operation of law under ORCP 23 C. Because plaintiff's first assignment of error depends upon a more complete understanding of the details of the various assault claims that she has brought over the course of this litigation, we lay out, in greater detail, the procedural history of those claims. We note that, in examining whether the trial court properly granted the City's motion to dismiss under ORCP 21 A(9), we are limited to the face of the complaint in State III. ⁵ Ramex, Inc. v. Northwest Basic Industries, 176 Ore. App. 75, 85, 29 P3d 1211 (2001); O'Gara v. Kaufman, 81 Ore. App. 499, 503, 726 P.2d 403 (1986). We do not consider any of the evidence set out in either the City's summary judgment motion or in plaintiff's response to that motion.

Plaintiff filed State I in October 1996. In her complaint, she alleged:

"At all material times, defendant Phillips was an employee of defendant City of Portland, working as an Affirmative Action Officer, and the direct supervisor of the plaintiff, and acting within the course and scope of his employment.

"* * * * *"In or about May, 1995, plaintiff was struck by defendant Phillips with his fist, causing her physical pain and substantial fear and emotional distress, and resulting in the onset of panic attacks. Defendant Phillips engaged in a pattern and practice of such assaultive behavior with respect to other employees and this was known or reasonably should have been known by defendant City of Portland.

"* * * * *

"The acts of defendant Phillips in striking the plaintiff [were] assault and battery, for which defendants are liable to plaintiff. Defendant City of Portland is vicariously liable for the conduct of defendant Phillips."

As noted, while State I was pending, plaintiff was terminated. She wanted to add additional claims arising out of her termination, and the parties agreed that State I would be dismissed without prejudice and with certain conditions. Their agreement (the tolling agreement) stated:

"All claims for relief asserted by plaintiff in this matter, and that are asserted again by plaintiff in the action to be filed on her behalf against the defendants, will be considered to have been filed as of the date the original Complaint was filed in this matter (October 1996), and no defenses will be asserted by the defendants that could not have been validly asserted had this lawsuit not been dismissed."

Plaintiff then filed State II on September 1997. As in State I, plaintiff alleged an assault claim against the City ⁶ and Phillips, whom plaintiff again alleged...