Miller v. Deschutes Valley Water Dist.
| Decision Date | 01 October 2009 |
| Docket Number | Civil No. 08-6370-HO. |
| Citation | 663 F.Supp.2d 1001 |
| Parties | Bruce MILLER, Plaintiff, v. DESCHUTES VALLEY WATER DISTRICT, and Gary Lytle, Defendants. |
| Court | U.S. District Court — District of Oregon |
Larry L. Linder, Law Office of Larry L. Linder, Salem, OR, for Plaintiff.
Peter R. Mersereau, Barrett C. Mersereau, Mersereau & Shannon, LLP, Portland, OR, for Defendants.
Plaintiff, Bruce Miller, brings this action against defendants Deschutes Valley Water District and Gary Lytle.
Bruce Miller began working for the Deschutes Valley Water District in 1983 and began work at the Opal Springs hydroelectric power plant in 1984. Gary Lytle supervised Miller the entire time Miller worked at the Opal Springs power plant.
On August 17, 2006, Lytle committed a safety violation by energizing the hydraulic power unit (HPU) without notifying employees causing the intake gates to open with employees inside. Miller complained to Earl Craig, a member of the safety committee and shop steward. Earl Craig notified his lead worker Craig Barry.
On August 28, 2006, Miller started a meeting to address safety concerns regarding Lytle's actions. Lytle apologized and a lockout/tag-out safety system was discussed.
On or about September 14, 2006, Lytle started the plant without properly conducting safety checks. Miller spoke to Lytle about it and the conversation became heated. Miller told Lytle he wanted the policies corrected and that Lytle needed to stop running the machines. Miller complained to Earl Craig and a union representative.
On September 25, 2006, personnel at Opal Springs held another meeting regarding safety issues. Lytle stated that he was "modifying my actions on this job site so that I don't have to listen to a guy blow up at me over nothing." Deposition of Gary Lytle at p. 105 (). Lytle said he would Id. At this time, Lytle also informed the employees that all other rules in addition to safety rules were going to be strictly followed. Bonn Kula, a hydro operator for the District, testified, when asked if the stricter expectations regarding rules were because of Miller, that Lytle told him that for Kula it would be business as usual. Deposition of Bonn Kula at p. 48 ().
On September 27, 2006, Miller complained to general manager Ed Pugh about the August 17th incident and the retaliation he felt he was suffering. Only Miller complained to Pugh about Lytle's conduct. Pugh relayed the comments to Lytle.
After Lytle met with Pugh, Lytle issued a verbal reprimand to Miller for being in the break room when he wasn't supposed to be. Lytle states that he did not see the reprimand as significant "because it was such a tiny little thing for the abuse that he gave me." Deposition of Gary Lytle at p. 112 (). Lytle also reprimanded Miller for leaving the job site.
On September 28, 2006, Miller told Lytle that he told Pugh that he felt Lytle was harassing him. Lytle decided to change Miller's schedule and give his shift to Bonn Kula. Lytle did this because "Bonn [was his] choice to take the reins at the power plant and I wanted to spend time with him." Deposition of Gary Lytle at p. 118 ().
Pugh met with Miller's co-workers on October 9, 2006 to investigate safety protocols.
On October 11, 2006, Miller raised safety concerns with Portland General Electric board member Bob Vigil. Vigil investigated Miller's concerns including contacting Lytle. Vigil informed Miller that he thought Lytle was trying to get rid of Miller.
Earl Craig noticed a change in the way Lytle interacted with Miller after the safety complaints. Earl Craig also remembers that Lytle told him that Miller's foreman duties were being taken away. Bonn Kula also remembers Lytle telling him that he was taking Miller's foreman duties away. Miller's phone, charging and ordering privileges were revoked. Only Miller was prohibited from answering the phone.
On November 2, 2006, a grievance meeting regarding the September safety issue was held. Miller stated he was taking medication for workplace stress and was then placed on administrative leave and told to provide a packet from his doctor. Miller's doctor was on vacation and Pugh directed Miller to see a different doctor, on short notice, or he could be terminated.
On December 1, 2006, Miller complained that the administrative leave and requirement to see a different doctor created undue hardship. Miller believes there were other employees for the District who were on medication who were not subject to the same treatment. The next day, Miller informed Vigil that he contacted BOLI concerning his treatment.
In December of 2006, Miller informed Lytle he was going to contact OSHA about another safety violation. Miller states that coworkers told him that he was being "hunted" by Lytle. Lytle states that after December 1, 2006, he was unaware of any safety complaints made by Miller.
Plaintiff received a poor evaluation in February of 2007. Sometime just prior to July 25, 2007, a note was placed on the tool check out list specifically directing Miller to check with Lytle before checking out tools. On July 25, 2007, Miller talked to Lytle about the note, about a comment from another employee that plaintiff was nothing at the plant and about why his vacation day had not been approved. An argument ensued and Miller commented that Lytle had created a hostile work environment for him. Miller stated he was going to file a grievance as he was leaving and Lytle followed him out the door and told Miller he was fired.
In response to the question of whether Lytle conducted an investigation before terminating Miller, Lytle stated:
I've been talking about all that. . . . It's all part of the process. Everything you've been asking me is part of that process. But the actual termination was comments that he was making to me at the moment of termination.
Deposition of Gary Lytle at p. 80 ().
Following an arbitration hearing in 2008, Miller was reinstated with back pay. Miller returned in June of 2008 and continues to work for the District.
In this action, Miller alleges violation of state whistleblowing laws, violation of state and federal age discrimination laws, violation of due process rights, violation of equal protection rights, violation of freedom of speech rights, intentional and reckless infliction of emotional distress, and wrongful discharge. In addition, Miller alleges defendants aided and abetted in the discriminatory violations. Defendants move for summary judgment as to all claims.
Miller alleges whistleblower discrimination under ORS § 659A.203. It is an unlawful employment practice for any public employer to take or threaten to take disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of a violation of state or federal law or a substantial and specific danger to public health and safety. ORS § 659A.203 (1)(b)(A-B). The statute also prohibits interfering with disclosures.
Defendants argue that there is no causal link between any adverse employment actions and Miller's complaints regarding safety. However, a trier of fact could conclude that, although there is a substantial period of time between the initiation of safety complaints and Lytle's decision to terminate, Lytle took progressive moves of disciplinary action and other adverse employment actions immediately after the initial complaint and such adverse employment actions were related to the complaints. The termination is not the only adverse employment action alleged. Lytle took away job duties and privileges well before he terminated Miller. Lytle also sought to strictly enforce other rules against Miller immediately following the complaints leading to discipline where such conduct had not merited discipline previously. In addition, a trier of fact could reasonably conclude that, although Lytle stated he made the decision to terminate based on comments made at the time, the events of the past months starting with the September 2006 complaint ultimately motivated him to terminate Miller. Lytle did state "it was all part of the process." A trier of fact certainly can infer Lytle's opposition to the complaints based on Lytle's actions and comments. The motion for summary judgment as to Miller's whistleblower claim is denied.
Defendants also contend that issue preclusion prevents Miller from arguing that his termination was the result of retaliation for his safety complaints based on the arbitration proceeding. While the arbitrator did find that Lytle did not have just cause to terminate Miller, he did conclude that the discharge was not an act of retaliation for safety complaints. However, this issue was not actually litigated as the only issue before the arbitrator was the just cause issue and the standard related to that issue. The ORS § 659A.203 claim was not before the arbitrator. Moreover, Miller is entitled to a jury trial on this issue under the Oregon Constitution and thus the court declines to apply issue preclusion to the whistleblower claim.
Miller alleges both a disparate treatment claim and a hostile work environment claim under the Age Discrimination in employment Act (ADEA) and ORS § 659A.030.1
To establish a violation of the ADEA under the disparate treatment theory of liability, Miller must establish a prima facie case of discrimination: (1) that he is a member of a protected class (at least age 40); (2) that he was performing his job...
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...defined by existing rules or understandings that stem from an independent source such as state law...." Miller v. Deschutes Valley Water Dist., 663 F.Supp.2d 1001, 1008 (D.Or.2009) (quoting Roth, 408 U.S. at 577, 92 S.Ct. 2701 ). A plaintiff claiming a right to property interest must "cite ......