Fenimore v. Blachly-Lane Cnty. C.E.A.

• Decision Date: 10 April 2019
• Docket Number: A165225
• Citation: 297 Or.App. 47,441 P.3d 699
• Parties: Laura Cooper FENIMORE, an individual, Plaintiff-Appellant, v. BLACHLY-LANE COUNTY C.E.A., an Oregon cooperative, and Cliff Kelley, an individual, Defendants-Respondents.
• Court: Oregon Court of Appeals

297 Or.App. 47

441 P.3d 699

Laura Cooper FENIMORE, an individual, Plaintiff-Appellant,

v.BLACHLY-LANE COUNTY C.E.A., an Oregon cooperative, and Cliff Kelley, an individual, Defendants-Respondents.

A165225

Court of Appeals of Oregon.

Argued and submitted September 10, 2018.

April 10, 2019

Laura Cooper Fenimore argued the cause and filed the briefs pro se.

Matthew J. Kalmanson, Portland, argued the cause for respondents. Also on the brief was Hart Wagner LLP.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

Plaintiff, an individual who has a disability and is wheelchair dependent, sued defendants, a private electrical cooperative (the cooperative) and its president and chairman of the board of directors, under ORS 659A.142(4). That statute prohibits places of public accommodation from discriminating against customers or patrons who are individuals with disabilities. Plaintiff sought damages and injunctive relief after she was unable to attend a board meeting of the cooperative that was scheduled to be held in a conference room that was not wheelchair accessible. The trial court granted summary judgment in defendants' favor. For the reasons explained below, we conclude that plaintiff cannot sustain a claim for damages under ORS 659A.142(4) against defendants. We also conclude that plaintiff’s claim for injunctive relief is now moot. Accordingly, we affirm.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

The relevant factual background is undisputed. Defendant Blachly-Lane County C.E.A. is a private electric cooperative that provides electric power exclusively to its members within a defined service area. To become a member of the cooperative, a person must live or operate a business within the service area, pay a membership fee, agree to purchase electric energy for their home or place of business exclusively from the cooperative, grant certain easements or rights-of-way to the cooperative, and abide by other requirements in the cooperative’s bylaws. Potential members must apply for membership, at which point the board of directors will review the application and accept or reject the applicant. The cooperative holds a monthly meeting of the board of directors. Members may attend and participate in those meetings during the "member comment" period. Nonmembers are not permitted to attend the meetings except as the guest of a member and may not participate in the meetings except as an observer.

Plaintiff does not reside or work in the cooperative’s service area, and, therefore, is not eligible for membership in the cooperative, cannot purchase electric energy or receive related services from the cooperative, and is not permitted to attend board meetings except as a nonparticipating guest. In 2015, plaintiff was invited to attend an upcoming board meeting by the Lemlers, friends of plaintiff and members of the cooperative. Wayne Lemler was considering running for a seat on the cooperative’s board of directors, but he had concerns regarding the cooperative’s financial practices. The Lemlers hoped that plaintiff, who is an attorney and has a background in forensic accounting, could provide them with advice based on her observations of the board meeting.

When plaintiff and the Lemlers arrived at the cooperative’s headquarters for the meeting, they learned that the meeting would be held in a second-floor conference room, which was not wheelchair accessible. Plaintiff, who depends on a wheelchair for mobility, requested that the meeting be moved to a location on the ground floor so that she could attend in person. Various representatives of the cooperative refused to relocate the meeting and instead offered telephonic access on the ground floor. Plaintiff insisted that she was allowed to attend the meeting in person and that, by excluding her, the cooperative was violating laws that protect individuals with disabilities. Ultimately, rather than proceed or relocate, the cooperative cancelled the meeting.

Shortly thereafter, plaintiff filed a formal complaint against defendants with the Bureau of Labor and Industries (BOLI), alleging that defendants had violated ORS 659A.142(4).² Under that statute,

"[i]t is an unlawful practice for any place of public accommodation, resort or amusement as defined in ORS 659A.400, or any person acting on behalf of such place, to make any distinction, discrimination or restriction because a customer or patron is an individual with a disability."

BOLI investigated and issued a Notice of Substantial Evidence. Specifically, BOLI found that there was "substantial evidence" that defendants had "violated ORS 659A.142 in making a restriction based on Complainant’s disability" based on the fact that defendants had offered plaintiff only "physically segregated" access to the meetings and defendants' failure to provide BOLI with a "compelling reason to believe that relocating the meeting *** would have resulted in a significant difficulty or expense." Although BOLI concluded that the cooperative is a place of public accommodation and plaintiff is an individual with a disability, it does not appear that BOLI considered whether plaintiff was, in fact, an aggrieved party under ORS 659A.142(4), that is, whether she was a "customer or patron" of the cooperative. Subsequent efforts at conciliation between plaintiff and defendants failed. At that point, BOLI chose not to bring formal charges against defendants and closed the case.³

After the close of her BOLI case, plaintiff brought her civil action against defendants, in which she alleged that she was "denied public accommodation due to her disability" in violation of ORS 659A.142(4).⁴ Plaintiff sought damages for emotional distress and requested injunctive relief in the form of a "decree" requiring that the cooperative hold future board meetings in an "accessible location."

Defendants moved for summary judgment, arguing that plaintiff lacked standing to pursue her claims against defendants. The trial court granted defendants' motion, and plaintiff appealed. We review a trial court’s grant of summary judgment for legal error, and we will affirm if there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Balzer v. Moore , 293 Or. App. 157, 159, 427 P.3d 193 (2018). In determining whether the court erred in granting summary judgment, "we view the facts and all reasonable inferences that may be drawn from them in the light most favorable to the nonmoving party—in this case, plaintiff." Eads v. Borman , 234 Or. App. 324, 326, 227 P.3d 826 (2010).

II. PLAINTIFF’S CLAIM FOR DAMAGES

As described, plaintiff brought an action for money damages against defendants under ORS 659A.142(4), in which she alleged that defendants had unlawfully discriminated against her on the basis of her disability. Under ORS 659A.142(4),

"[i]t is an unlawful practice for any place of public accommodation, resort or amusement as defined in ORS 659A.400, or any person acting on behalf of such place, to make any distinction, discrimination or restriction because a customer or patron is an individual with a disability."

"Public accommodation," means, in relevant part, "any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise." ORS 659A.400(1)(a).

Defendants argued at summary judgment that plaintiff lacked standing to bring her claim under ORS 659A.142(4) because the cooperative is not a place of public accommodation and because plaintiff did not suffer any actionable harm. The summary judgment hearing consisted only of those same arguments. The trial court did not rule at the hearing, and its subsequent order granting defendants' motion did not explain the basis for its ruling. But, to the extent that the trial court granted defendants' motion because it concluded that plaintiff lacked standing to bring her claim—and we have no basis to conclude that the court ruled as it did for some other reason—the court erred.

In Eckles v. State of Oregon, 306 Or. 380, 760 P.2d 846 (1988), the Supreme Court provided the following explanation of standing:

"[T]wo distinct concepts of standing must be distinguished. Ordinarily, ‘standing’ means the right to obtain an adjudication. It is thus logically considered prior to consideration of the merits of a claim. To say that a plaintiff has ‘no standing’ is to say that the plaintiff has no right to have a tribunal decide a claim under the law defining the requested relief, regardless whether another plaintiff has any such right. When this court has used the term ‘standing,’ the term has for the most part been used in this sense. ***

"In contrast, ‘standing’ is also sometimes used to refer to the existence of a substantive personal right. Used in this sense, ‘standing’ is concerned with the merits of a claim. To say that a plaintiff has ‘no standing’ is to say that no right of the plaintiff was violated, regardless whether the conduct of a defendant was in general unlawful or unlawful as to some other person. This use of ‘standing’ should be avoided because it easily confuses the right to obtain an adjudication of a claim for relief with the right to obtain the relief itself."

Id. at 383-84, 760 P.2d 846 ; see also MAN Aktiengesellschaft v. DaimlerChrysler AG , 218 Or. App. 117, 121, 179 P.3d 675 (2008) ("The decisive issue for standing * * * is not whether a party’s claims are correct but whether the party may obtain a judicial determination of their correctness.").

Plaintiff in this case had standing to seek a judicial determination of her claims. Under ORS 659A.885(1), "any person claiming to be aggrieved by an unlawful practice" under a number of statutes, including ORS 659A.142(4), may file a civil suit seeking injunctive relief and compensatory damages. (Emphasis added.) Here, plaintiff claimed that the cooperative unlawfully discriminated against her on the...