Miller v. State

Decision Date12 June 2019
Docket NumberA165072
Citation298 Or.App. 70,445 P.3d 371
Parties Jill MILLER, Plaintiff-Appellant, v. STATE of Oregon, acting BY AND THROUGH OREGON RACING COMMISSION, Defendant-Respondent, and Jack McGrail, et al., Defendants.
CourtOregon Court of Appeals

William J. Macke, Portland, argued the cause and filed the briefs for appellant.

Christopher Page, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.


Plaintiff brought claims against the State of Oregon, its Oregon Racing Commission, and individuals, after termination of her employment.1 She appeals from a judgment dismissing her claims. She assigns error to the trial court’s decisions to grant defendant’s motions for summary judgment which (1) dismissed her first claim for violation of her right to due process under the Fourteenth Amendment to the United States Constitution, and (2) dismissed her second and third claims under ORS 659A.030 for discrimination on the basis of sex or age.

As to the first claim, we conclude that the trial court erred in applying the doctrine of law of the case so as to preclude consideration of amendment of the claim to address one of defendant’s challenges to the claim. For that reason, we reverse and remand for further consideration of plaintiff’s motion to amend and the other motions related to that claim.2 As to the latter claims, we conclude that the trial court did not err in granting dismissal because plaintiff’s evidence does not permit a reasonable inference of discrimination.


We review decisions on summary judgment to determine if the trial court correctly concluded that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. ORCP 47 C. We view the evidence, including all reasonable inferences, in the light most favorable to the nonmoving party. Jones v. General Motors Corp. , 325 Or. 404, 408, 939 P.2d 608 (1997).

The Oregon Racing Commission (ORC) is a state agency that oversees all sanctioned betting on horseracing in Oregon. The ORC employed plaintiff for about 24 years in positions of increasing responsibility, culminating in her position as the Manager of Advanced Deposit Wagering and of Mutuels. In her words, accounting comprised a "primary part of the job."

In June 2013, the ORC appointed McGrail as the new executive director. Shortly after he began supervising plaintiff, McGrail inquired about her professional background, asking her whether she had a license as a certified public accountant or a graduate degree in economics. Plaintiff had neither. McGrail seemed "very concerned" to learn that she had no college degree. McGrail asked how plaintiff was able to do the job, and he asked how she had lasted so long in the position. She replied that she "just came in and did [her] job," that she "read the rules and [she] read the statutes and [she] figured out what needed to be designed in terms of spreadsheets and what type of work needed to be done for those particular things." She "had basically evolved into [her] job." Plaintiff recalled that, at another time, McGrail told her, "I’ve been asking everyone about how good of a job you’ve been doing [pertaining to the Advanced Deposit Wagering] and they said you’re doing a good job." (Brackets in original.)

Plaintiff felt that McGrail was "really, really difficult on [her] in terms of [her] education." Plaintiff formed the "strong impression" that McGrail was not asking her male coworkers to "qualify their education," and she knew that he was not inquiring into their job performance. Plaintiff interpreted McGrail’s comments to be directed at her sex and age, and she perceived that he held her to higher standards because of her sex.

Plaintiff believed that these fears were confirmed when McGrail placed her on administrative leave after an incident involving her son. Plaintiff’s son had been a security guard at the Portland Meadows racetrack between September and November 2013. She and a witness—a security guard on the scene—offered somewhat different accounts of the incident.

By plaintiff’s account, on December 19, 2013, she and her son went to the office of the Portland Meadows security supervisor to pick up a paycheck. Plaintiff said that her son knocked on the door of the security supervisor’s office, but he received no response. She knew that no one was inside the office. Plaintiff said she walked down the hallway seeking help. Her son, meanwhile, proceeded to unlock and open the door. When plaintiff returned, she said that she told him, "You cannot go in there. You do not work there any longer." He then closed the door, and they left.

Offering another account, the security guard said that he saw plaintiff standing, leaning against the wall in the hallway outside the door of the security office. According to the guard, when plaintiff noticed him approaching, she said something toward the office, and her son exited the office and returned the office key to its lock box. The guard had the impression that plaintiff aided her son in the unauthorized entry of the secured office by acting as lookout.

As a result of the security guard’s allegation, McGrail put plaintiff on administrative leave. An attorney with the Oregon Department of Justice investigated the matter and reported the findings to the ORC. McGrail recommended plaintiff’s dismissal, citing the incident. ORC notified plaintiff that it would consider her dismissal at a meeting on January 16, 2014. In an executive session chaired by ORC Commissioner Dudley, the commission voted unanimously to discharge plaintiff. Her employment ended January 23, 2014. At the time, plaintiff was 56 years old. She was replaced by a woman who was 50 years old.


In August 2014, plaintiff filed an appeal with the Employment Relations Board (ERB) alleging that ORC improperly regarded her as an at-will employee and that, as a consequence, ORC improperly discharged her. Eventually, the ERB would determine that the administrative appeal had been filed too late and dismiss the appeal.

In January 2015, before the administrative appeal was resolved, plaintiff filed this action in the circuit court.

She alleged a "14th Amendment Due Process" claim against McGrail and the ORC, albeit without reference to violation of her civil rights under 42 USC section 1983. She also asserted a "Due Process" claim under the Oregon Constitution against McGrail and ORC, claims for sex and age discrimination under ORS 659A.030 against ORC, and a defamation claim against the ORC and a security supervisor. The complaint named ORC Chairman Dudley a defendant, but without regard to any particular claim.

Based on the federal claim, defendants removed the case to federal court. Among other things, the court dismissed the "14th Amendment Due Process" claim without prejudice.3 The court did so as a matter of abstention in deference to an underlying matter of complex state law.4 At the same time, the federal court remanded to the state court the remaining discrimination claims made under state law.

After remand to state court, defendants McGrail and Dudley filed a motion to dismiss "the only remaining causes of action" against them and to remove their names from the case caption. They argued that a tort committed by a state employee within the scope of employment, involving damages within the statutory tort limits, should be brought against the state rather than the state’s employee. See ORS 30.265(3) (providing for substitution of the state for employee under such circumstances).5 The motion did not refer to the former "14th Amendment Due Process" claim that the federal court had dismissed.

Plaintiff filed a motion "to amend her complaint [by] re-alleging the federal due process claim." She noted that the federal court had dismissed the claim without prejudice. The state opposed reinstating the due process claim, arguing that plaintiff’s assumed property interest, needed for a due process claim, depended upon overturning her job classification before ERB, but ERB rejected her appeal as untimely, and she failed to seek judicial review of that decision.

The motions came for hearing before the trial court and were understood as defendantsmotions to dismiss as to the "two state [tort] claims" and "plaintiff’s request to add the claim that was dismissed without prejudice in federal court." Plaintiff confirmed the court’s impression that she was "willing to dismiss voluntarily the claims against Mr. Dudley and Mr. McGrail." Plaintiff recounted that, after the administrative and federal proceedings, "the last remaining claims are a sex discrimination claim and age discrimination claim." Plaintiff urged a motion to amend to "bring the Fourteenth Amendment claim back" and also sought to add particulars in the discrimination claims. The court observed, "You want to amend those claims in an attempt to state a claim. Whether it’s a successful attempt is not really before me, I don’t think." Plaintiff agreed. The court decided to grant the motion to dismiss Dudley and McGrail, "as conceded by the plaintiff," and "to grant plaintiff’s motion *** to add back, *** an attempt to plead the Fourteenth Amendment due process claim."

At this juncture, we pause to observe that, at the hearing, plaintiff did not object that the individual defendants were necessary to state a civil rights claim under section 1983. Further, the record contains no testimony, declaration, or affidavit about the nature of plaintiff’s concession in dismissing the claims against the individual defendants Dudley or McGrail.

On the day after the hearing, defendant emailed to plaintiff draft orders on the respective motions, seeking approval as to form. On the next day, plaintiff responded, "The orders look fine." Defendant forwarded the...

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