Miller v. State, A173441

CourtCourt of Appeals of Oregon
Writing for the CourtKAMINS, J.
Citation322 Or.App. 368
PartiesJill MILLER, Plaintiff-Appellant, v. STATE OF OREGON, acting by and through Oregon Racing Commission; Jack McGrail; and Chris Dudley, Defendants-Respondents, and John McSWAIN and Oregon Racing, Inc., dba Portland Meadows, Defendants.
Docket NumberA173441
Decision Date12 October 2022

322 Or.App. 368

Jill MILLER, Plaintiff-Appellant,
v.

STATE OF OREGON, acting by and through Oregon Racing Commission; Jack McGrail; and Chris Dudley, Defendants-Respondents,

and John McSWAIN and Oregon Racing, Inc., dba Portland Meadows, Defendants.

A173441

Court of Appeals of Oregon

October 12, 2022


This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Argued and submitted February 7, 2022

Multnomah County Circuit Court 15CV00652; Thomas M. Ryan, Judge.

William J. Macke argued the cause and fled the briefs for appellant.

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

Before Tookey, Presiding Judge, and Aoyagi, Judge, and Kamins, Judge. [*]

Affirmed.

1

[322 Or.App. 369]

KAMINS, J.

Plaintiff was fired from her employment for misconduct after 24 years with the Oregon Racing Commission (ORC). She challenged her dismissal before the Employment Relations Board (ERB), asserting that her position had been incorrectly designated by the state as "unclassified" and that, therefore, she was mistakenly treated as an "at will" employee who could be discharged without pre-termination procedures rather than as a managerial employee who was entitled to procedural protections that she did not receive before termination. ERB dismissed her petition as untimely, and plaintiff did not seek judicial review of that order.

Plaintiff then brought this current action against ORC and the individual employees who had made the decisions to terminate her employment for misconduct, alleging a single claim under 42 USC section 1983,[1] and seeking damages for back pay, reinstatement of her position, and attorney fees. Plaintiffs current complaint[2] alleges that, at all relevant times, the individual defendants were acting in their official capacities, that plaintiff had been employed for 24 years, that she had a protected property interest in her employment, and that her termination deprived her of that protected property interest "without giving her due process contrary to the 14th Amendment of the Constitution and 42 USC [section] 1983."

ORC and the individual defendants asserted two motions to dismiss. For their first motion, defendants

2

[322 Or.App. 370] contended that the claim should be dismissed under ORCP 21 A(8),[3] for failure to state a claim, for the reasons that: (1) plaintiffs complaint did not state a claim against ORC, a state agency, because the state is not a "person" subject to liability under section 1983, see Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 105 L.Ed.2d 45, 109 S.Ct. 2304 (1989) (Section 1983 actions do not lie against a state.); (2) plaintiffs complaint did not state a claim against the individual defendants, because state officials cannot be sued in their official capacities for damages under section 1983, Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n 24, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); and (3) plaintiffs complaint did not allege ultimate facts from which it could be found that she had a protected property interest in her job.[4]

For their second motion, defendants asserted that the claim should be dismissed under ORCP 21 A(1), because only ERB, rather than the trial court, had "primary subject matter jurisdiction" to determine whether plaintiffs position at the time of her termination should have been...

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