Johnson v. Or. State Bd. of Higher Educ.

• Decision Date: 12 August 2015
• Docket Number: A153477.,060743798
• Citation: 272 Or.App. 710,358 P.3d 307
• Parties: Marla JOHNSON, Plaintiff, v. OREGON STATE BOARD OF HIGHER EDUCATION, Eastern Oregon University, a public university ; and Robert Davis, Defendants. Robert Davis, Cross–Complainant–Appellant, v. Eastern Oregon University, a public university ; and Oregon State Board of Higher Education, Cross–Defendants–Respondents.
• Court: Oregon Court of Appeals

272 Or.App. 710

358 P.3d 307

Marla JOHNSON, Plaintiff

v.OREGON STATE BOARD OF HIGHER EDUCATION, Eastern Oregon University, a public university ; and Robert Davis, Defendants.

Robert Davis, Cross–Complainant–Appellant

v.Eastern Oregon University, a public university ; and Oregon State Board of Higher Education, Cross–Defendants–Respondents.

060743798

A153477.

Court of Appeals of Oregon.

Argued and submitted March 18, 2014.

Decided Aug. 12, 2015.

Philip M. Wasley, La Grande, argued the cause for appellant. With him on the briefs was Wasley Law Office, PC.

Cody J. Elliott, Portland, argued the cause for respondents. With him on the brief were Heather K. Cavanaugh, P.C., and Miller Nash LLP.

Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.

Opinion

ORTEGA, P.J.

Cross-complainant Davis appeals a judgment entered after the trial court denied his motion for partial summary judgment and granted a motion for summary judgment by cross-defendants Eastern Oregon University and the Oregon State Board of Higher Education (collectively, the state). Both motions turned on the issue of whether alleged acts by Davis, particularly an alleged rape, occurred in the performance of his duties as an employee of Eastern Oregon University (EOU). The court ruled that Davis was not entitled to a defense under the Oregon Tort Claims Act (OTCA) as a matter of law. We agree with the trial court that the underlying claims all related to Davis's sexual conduct with a coworker, and, as a matter of law, could not constitute an act or omission occurring in the performance of duty. Therefore, we affirm the grant of summary judgment to the state and the denial of partial summary judgment to Davis.

In appeals involving cross-motions for summary judgment, we review the record for each motion in the light most favorable to the party opposing it. Eden Gate, Inc. v. D & L Excavating & Trucking, Inc., 178 Or.App. 610, 622, 37 P.3d 233 (2002). The parties quibble about the facts but, except where indicated, the facts necessary to resolve the question of whether Davis, an EOU employee, was entitled to a state defense in a civil action brought by another EOU employee are undisputed.

Plaintiff in the principal suit sued Davis for sex discrimination, battery, and intentional infliction of emotional distress, all based on allegations that he had raped her while they attended a conference in Atlanta, Georgia. Davis admitted that a sexual encounter had taken place but claimed that it was consensual. At trial, a jury found that Davis was not liable on all claims and, with the principal claims resolved, this appeal concerns only the question of whether the state has a duty to indemnify Davis for defense costs.

The factual circumstances underlying plaintiffs tort claims are as follows. Davis and plaintiff attended the Atlanta conference as part of their work duties. After conference activities had concluded for the day, Davis, plaintiff, and two other EOU employees went out to dinner, where they consumed alcoholic beverages and then went to a nightclub for an evening of dancing and drinking. Afterwards, all four employees returned to the hotel. Plaintiff was very inebriated and, after some discussion, Davis offered to bring her to his room to take care of her. At some point between 2:00 a.m. and 4:00 a.m., there was a sexual encounter between Davis and plaintiff, which Davis claims was consensual.

Plaintiff filed a lawsuit against Davis, EOU, and the Oregon State Board of Higher Education, alleging three different claims against Davis, including allegations that Davis was “acting within the course and scope of his duties as an employee of [d]efendant EOU.” All three claims, along with seven claims against the other defendants, arise out of the same factual allegations—specifically, that Davis raped plaintiff while they were at the conference in Atlanta and that EOU and its administrators treated plaintiff poorly in the aftermath of those allegations. The common factual allegations also include the assertion that EOU did not remove Davis from campus until more than a month after being notified of the alleged rape and that his employment activities included meetings where plaintiff would be present. However, plaintiff does not allege any conduct by Davis after the alleged rape; his presence in meetings appears to relate to plaintiffs claims that EOU failed to protect her from further harassment by Davis.

Davis sought counsel from the Attorney General to provide him with a defense against plaintiffs claims under ORS 30.285,¹ as we explain further below. After investigating the matter, the Attorney General denied his request, concluding that “the claims asserted against * * * Davis do not arise out of alleged acts or omissions occurring in the performance of duty.” Davis then asserted cross-claims for indemnity against the state arising out of the denial of his defense request. After all defendants prevailed on the principal claims, Davis moved for summary judgment on his cross-claims against the state, arguing that he was entitled to a defense because plaintiff had alleged that his acts had occurred in the performance of his employment duties. The state filed a cross-motion for summary judgment on those claims, contending that Davis had offered no facts to establish that plaintiffs claims “in fact arose out of an alleged act or omission occurring in the performance of duty,” as ORS 30.285 requires. The trial court denied Davis's motion and granted the state's cross-motion, concluding that “as a matter of law [Davis] was not entitled to the defense” because “having sexual intercourse with somebody is not within the performance of anybod[y's] duty in their role on the [EOU] faculty.”

Davis assigns error to the court's denial of his motion for partial summary judgment and grant of the state's cross-motion for summary judgment. “Each party moving for summary judgment has the burden of demonstrating that there are no genuine issues of material fact,” McKee v. Gilbert, 62 Or.App. 310, 321, 661 P.2d 97 (1983), and that the moving party is entitled to judgment as a matter of law. Eden Gate, Inc., 178 Or.App. at 622, 37 P.3d 233. We review an order granting summary judgment for legal error. Ellis v. Ferrellgas, L.P., 211 Or.App. 648, 652, 156 P.3d 136 (2007).

Davis seeks to enforce the state's duty to defend its employees under the OTCA, ORS 30.260 to 30.300. ORS 30.285(1) provides:

“The governing body of any public body shall defend, save harmless and indemnify any of its officers, employees and agents, whether elective or appointive, against any tort claim or demand, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of duty. ”

(Emphasis added.) In relevant part, ORS 30.285(3) provides:

“If any civil action, suit or proceeding is brought against any * * * employee * * * which on its face falls within the provisions of subsection (1) of this section, or which the * * * employee * * * asserts to be based in fact upon an alleged act or omission in the performance of duty, the * * * employee * * * may * * * file a written request for counsel with the Attorney General. The Attorney General shall thereupon appear and defend the officer, employee or agent unless after investigation the Attorney General finds that the claim or demand does not arise out of an alleged act or omission occurring in the performance of duty, * * * in which case the Attorney General shall reject the defense of the claim.”

(Emphasis added.)

Davis argues that, because the parties and the nature of the complaint conform to the requirements of ORS 30.285, he was entitled to the state's defense. He contends that the trial court erred in focusing on whether the sexual conduct occurred within the performance of duty, pointing to allegations that he created a hostile work environment, that he had a history of sexual harassment, that he was in a position with access and control over plaintiff, and that he was present at meetings with her for about a month after the alleged battery occurred. He emphasizes that, in his view, it is enough that plaintiff alleged that his actions were in the performance of duty, whether or not they actually were, citing ORS 30.285(1) (requiring the public body to defend against any tort claim, “whether groundless or otherwise” arising out of an “alleged” act or omission occurring in the performance of duty).

In response, the state argues that the trial court correctly concluded as a matter of law that Davis was not entitled to a state-provided defense because plaintiffs tort claims against him did not arise out of an act or omission occurring in the performance of duty. The state points out that ORS 30.285(3) provides that, if the Attorney General finds, after investigation, that the alleged act did not arise out of an alleged act or omission occurring in the performance of duty, then the Attorney General is directed to reject the employee's defense request. Although ORS 30.285(5) allows the employee to challenge the Attorney General's rejection of the defense by establishing that the underlying tort claim “in fact arose out of an alleged act or omission occurring in the performance of duty,”² Davis submitted no evidence to create an issue of fact that his sexual encounter with plaintiff occurred in the performance of duty. Accordingly, the state argues, the trial court did not err in granting the state's cross-motion for summary judgment and denying Davis's motion. The state further contends that neither plaintiffs allegation that Davis acted in the performance of duty nor her subjective belief that Davis was acting in the performance of duty because “a conference is a conference from the minute you get on the plane until the minute you get home” and because Davis was “the administrator in charge of the conference” created an issue of fact to avoid summary judgment.

As a preliminary issue, we agree with the state that plaintiff's...