Miller v. State
| Decision Date | 12 October 2022 |
| Docket Number | A173441 |
| Citation | 322 Or.App. 368 |
| Parties | 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. |
| Court | Oregon Court of Appeals |
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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.
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 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) (); (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 correctly classified as "managerial" rather than as "unclassified," so as to establish the predicate protected "property interest" that would be necessary to assert a claim under section 1983.
Finally, in a third motion, defendants moved to dismiss plaintiffs request for prejudgment interest under ORCP 21 A(1).
During a hearing on the motions, the court asked whether, if the court were to decide that the complaint "did not adequately state a claim of property interest," it would still need to address the issue relating to ERB. Plaintiffs counsel responded:
"If it doesn't state the property interest, if it's deficient in reaching that ultimate pleading of fact, then I think I have to plead it unless it would be futile."
The court then confirmed with plaintiffs counsel that plaintiff was not opposing defendants' motion to dismiss the claims against the individual defendants in their official capacities or the motion to dismiss the allegation requesting prejudgment interest.
From the bench, the court granted defendants' motions to dismiss on all of the remaining grounds:
The court confirmed its oral rulings in a written order and entered judgment for defendants.
On appeal, plaintiff raises two assignments of error, both of which address only the trial court's ruling under ORCP 21 A(1), relating to ERB's "primary subject matter jurisdiction." Plaintiff does not assign error to the trial court's rulings dismissing the claim under ORCP 21 A(8), or even make any argument addressing those rulings. Assignments of error challenge rulings. ORAP 5.45(3) ("Each assignment of error must identify precisely the legal, procedural, factual, or other ruling that is being challenged."). Plaintiffs assignment of error challenged only the trial court's ruling on the motion to dismiss under ORCP 21 A(1). In the absence of an assignment of error on the trial court's rulings under ORCP 21 A(8), those rulings are not before us. See ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule[.]").
Even if we were to reverse the ruling under ORCP 21 A(1), in the absence of an assignment of error, the rulings under ORCP 21 A(8) would still stand. In light of plaintiffs not assigning error to the trial court's rulings on those independently sufficient bases for dismissal, we reject plaintiffs assignments of error without further discussion. Jensen v. Medley, 336 Or. 222 239-40, 82 P.3d 149 (2003) (...
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