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

• Decision Date: 29 November 2012
• Docket Number: Case No. 3:11–cv–1407–ST.
• Citation: 927 F.Supp.2d 1030
• Parties: Rosemary SIRING, Plaintiff, v. OREGON STATE BOARD OF HIGHER EDUCATION, acting by and through EASTERN OREGON UNIVERSITY, Defendant.
• Court: U.S. District Court — District of Oregon

927 F.Supp.2d 1030

Rosemary SIRING, Plaintiff,

v.OREGON STATE BOARD OF HIGHER EDUCATION, acting by and through EASTERN OREGON UNIVERSITY, Defendant.

Case No. 3:11–cv–1407–ST.

United States District Court, D. Oregon.

Nov. 29, 2012.

Craig A. Crispin, Crispin Employment Lawyers, Portland, OR, for Plaintiff.

J. Michael Porter, Cody J. Elliott, Portland, OR, for Defendant.

OPINION AND ORDER ADOPTING FINDINGS AND RECOMMENDATION

SIMON, District Judge.

Magistrate Judge Janice M. Stewart issued findings and recommendation in the above-captioned case on October 3, 2012. Dkt. 39. Judge Stewart recommended that Defendant's Motion for Summary Judgment, Dkt. 24, be GRANTED IN PART and DENIED IN PART. Defendant timely filed objections. Dkt. 41. Plaintiff has responded to those objections. Dkt. 43.

Under the Federal Magistrates Act (“Act”), the court may “accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate's findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.;Fed.R.Civ.P. 72(b)(3).

The Court has reviewed de novo those portions of Judge Stewart's findings and recommendation to which Defendant has objected, as well as Defendant's objections and Plaintiff's response. The Court has also reviewed both the Declaration of Cody J. Elliott dated October 22, 2012 (Dkt. 42), which accompanied Defendant's Objections, and the Declaration of Craig A. Crispin dated November 5, 2012 (Dkt. 44), which accompanied Plaintiff's Opposition to Defendant's Objections. Although these declarations were not before Judge Stewart, this Court may “receive further evidence” in the course of reviewing a Magistrate Judge's findings and recommendations. 28 U.S.C. § 636(b)(1). Plaintiff states that “[t]his extraordinary procedure has not been found by plaintiff to have previously been used to supplement a summary judgment record within this District or even within this Circuit.” Pl.'s Opp'n at 10 n. 3. Plaintiff may have overlooked Hamilton v. Silven, Schmeits & Vaughan, P.C., Case No. 2:09–cv–01094–SU, 2011 WL 6888564, at *6 (D.Or. Dec. 23, 2011) (citing Spaulding v. University of Washington, 676 F.2d 1232, 1235 (9th Cir.1982) (court may hold new hearing and take new evidence)). Having reviewed the parties' submissions and declarations de novo, the Court agrees with Judge Stewart's reasoning and adopts those portions of the findings and recommendation.

For those portions of a magistrate's findings and recommendations to which neither party has objected, the Act does not prescribe a standard of review. Indeed, where there are no objections, “[t]here is no indication that Congress ... intended to require a district judge to review a magistrate's report[.]” Thomas v. Arn, 474 U.S. 140, 152, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); see also United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) ( en banc ), cert. denied,540 U.S. 900, 124 S.Ct. 238, 157 L.Ed.2d 182 (2003) (the court must review de novo magistrate's findings and recommendations if objection is made, “but not otherwise”). Although review is not required in the absence of objections, the Act “does not preclude further review by the district judge[ ] sua sponte ... under a de novo or any other standard.” Thomas, 474 U.S. at 154, 106 S.Ct. 466. Furthermore, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that “[w]hen no timely objection is filed,” the court review the magistrate's findings and recommendations for “clear error on the face of the record.”

For those portions of Judge Stewart's findings and recommendation to which neither party has objected, this Court follows the recommendation of the Advisory Committee and reviews those matters for clear error on the face of the record. No such error is apparent.

Therefore the Court orders that Judge Stewart's findings and recommendation, Dkt. 39, are ADOPTED. Defendant's Motion for Summary Judgment, Dkt. 24, is GRANTED IN PART and DENIED IN PART as follows: (1) the Motion for Summary Judgment is GRANTED as to the Third, Fourth, and Fifth Claims (alleging retaliation) only to the extent that they are based on actions taken after Plaintiff's March 2010 email, which is not a protected activity, and after Plaintiff filed her Tort Claim Notice and BOLI complaint in July 2010 due to lack of causation; (2) the Motion for Summary Judgment is DENIED as to those portions of the Third, Fourth, and Fifth Claims (alleging retaliation) to the extent they are based on actions taken after Plaintiff sent her May 24, 2010 letter; and (3) the Motion for Summary Judgment is DENIED as to the remaining claims.

FINDINGS AND RECOMMENDATION

STEWART, United States Magistrate Judge:

INTRODUCTION

This case arises out of the termination of plaintiff, Rosemary Siring (“Siring”), by her former employer, the Oregon State Board of Higher Education, acting by and through Eastern Oregon University (“the University”). On October 19, 2011, Siring filed a Complaint in Multnomah County Circuit Court for the State of Oregon, Case No. 1110–13749, alleging various employment discrimination and retaliation claims against the University. The Complaint alleges the following eight claims for relief: (1) age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 USC § 623(a) (First Claim), and the corresponding Oregon statute, ORS 659A.030 (Second Claim); (2) retaliation for opposing unlawful discrimination in violation of 29 USC § 623(d) (Third Claim), and corresponding Oregon statutes ORS 659A.030(1)(f) (Fourth Claim) and ORS 659A.230 (Fifth Claim); and (3) disability discrimination in violation of Title I of the Americans with Disabilities Act (“ADA”), 42 USC § 12112(a) (Sixth Claim), ORS 659A.112 (Seventh Claim), and Section 504 of the Rehabilitation Act, 29 USC § 794(a) (Eighth Claim).

On November 21, 2011, the University filed a timely notice of removal pursuant to 28 USC §§ 1441 and 1446, asserting federal question jurisdiction under 28 USC § 1331. The University then filed a Motion for Summary Judgment (docket # 24) on all claims. For the reasons set forth below, that motion should be granted in part and denied in part.

STANDARD

FRCP 56(c) authorizes summary judgment if “no genuine issue” exists regarding any material fact and “the moving party is entitled to judgment as a matter of law.” The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and designate specific facts showing a “genuine issue for trial.” Id. at 324, 106 S.Ct. 2548, citing FRCP 56(e). The court must “not weigh the evidence or determine the truth of the matter, but only [determine] whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir.1999) (citation omitted). A “ ‘ scintilla of evidence,’ or evidence that is ‘merely colorable’ or ‘not significantly probative,’ ” does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert denied,493 U.S. 809, 110 S.Ct. 51, 107 L.Ed.2d 20 (1989) (emphasis in original) (citation omitted).

The substantive law governing a claim or defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000) (citation omitted). The court must view the inferences drawn from the facts “in the light most favorable to the nonmoving party.” Farrakhan v. Gregoire, 590 F.3d 989, 1014 (9th Cir.2010), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In employment discrimination cases “very little evidence” is required to survive summary judgment “because the ultimate question is one that can only be resolved through a searching inquiry—one that is most appropriately conducted by the factfinder, upon a full record.” Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir.) (internal quotations, citation omitted), cert denied,519 U.S. 927, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996).

FACTS

I. The University's Tenure–Track Requirements

Tenure-track faculty members in the Oregon University system are governed by the Oregon administrative rules, the University's Promotion and Tenure Handbook (“Handbook”) and a collective bargaining agreement between the University and the Associated Academic Professionals, Local 6200 of the American Federation of Teachers, AFL–CIO (“Union”). Jaeger Decl., ¶¶ 2, 3; Jaeger Depo.,¹ p. 20.

Applicable Oregon administrative rules require that tenure-track faculty members receive annual written notices that include, among other things, the employee's effective date and duration of appointment, position title, compensation, and other conditions of employment. OAR 580–021–0005(1), (2). Tenure-track faculty members must initially be appointed for one year. OAR 580–021–0110(1). The time before an institution awards indefinite tenure is known as a “probationary period,” when the institution evaluates the tenure-track faculty member and considers appointment to an indefinite tenure. OAR 580–021–0100(1)(b)(A); Jaeger Decl., Exs. 1 A., p. 21; 1 B, p. 21; 1 C, p. 22. Typically, the probationary period is no less than five years, but may be shortened in special circumstances. OAR 580–021–0100(2), (4). Tenure-track faculty members have no right to reappointment or to appointment beyond the terms specified in the annual written notice of appointment. Jaeger Decl., Exs. 1A, pp. 21–22; 1B, pp. 21–22; 1C, pp. 22–23.

Generally, institutions evaluate tenure-track faculty members in the following categories: (1) instruction, (2) research accomplishments and scholarly achievements, (3) public service,...