Titus v. City of Prairie City, CV–08–1330–SU.
| Decision Date | 14 July 2011 |
| Docket Number | No. CV–08–1330–SU.,CV–08–1330–SU. |
| Citation | 802 F.Supp.2d 1210 |
| Parties | Robert TITUS, Plaintiff, v. CITY OF PRAIRIE CITY, a municipal corporation, Stan Horrell, an individual, Jim Munyon, an individual, Frank Primozic, an individual, Pam Woodworth, an individual, Tim Coe, an individual, Roger McKinley, an individual, Bill Harrington, an individual, Diane Clingman, an individual, and Anna Bass, an individual, Defendants. |
| Court | U.S. District Court — District of Oregon |
802 F.Supp.2d 1210
Robert TITUS, Plaintiff,
v.
CITY OF PRAIRIE CITY, a municipal corporation, Stan Horrell, an individual, Jim Munyon, an individual, Frank Primozic, an individual, Pam Woodworth, an individual, Tim Coe, an individual, Roger McKinley, an individual, Bill Harrington, an individual, Diane Clingman, an individual, and Anna Bass, an individual, Defendants.
No. CV–08–1330–SU.
United States District Court,D. Oregon,Pendleton Division.
July 14, 2011.
[802 F.Supp.2d 1217]
Roxanne L. Farra, Roxanne L. Farra, PC, Bend, OR, for Plaintiff.
Robert E. Franz, Jr., Law Office of Robert E. Franz, Jr., Springfield, OR, for Defendants.
This action arises out of the termination of plaintiff, Robert Titus, from his employment as Public Works Director for the City of Prairie City, Oregon (“City”). He brings claims against the City and names as individual defendants City Council Members Mayor Stan Horrell, Jim Munyon, Frank Primozic, Pam Woodworth, Tim Coe, Roger McKinley, and Bill Harrington (collectively, “City Council”), Diane Clingman, the City Recorder (“City Recorder Clingman”), and Anna Bass, former City Council member and current City Recorder for the City of John Day.
Titus brings several claims under 42 U.S.C. § 1983 for violation of his constitutional right to privacy, age discrimination, use of protected medical leave, procedural due process, and substantive due process. Titus also claims a violation of the Family Medical Leave Act, 29 U.S.C. §§ 2601–2654 (“FMLA”). He brings state law claims for wrongful discharge, invasion of privacy, intentional infliction of emotional distress (“IIED”), violations of the Oregon Family and Medical Leave Act (“OFLA”), O.R.S. 659A.150–186, and age discrimination
[802 F.Supp.2d 1218]
under Oregon law. The court has original subject matter jurisdiction over Titus' § 1983 claims, 28 U.S.C. § 1331, and supplemental jurisdiction over his state law claims, 28 U.S.C. § 1367. All parties have filed written consents to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c).
Presently before the court is defendants' motion for summary judgment. For the reasons set forth below, the motion is granted in part and denied in part.
Fed.R.Civ.P. 56(c) authorizes summary judgment if “no genuine issue” exists regarding any material fact and “the moving party is entitled to a 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).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). The court must view the inferences drawn from the facts “in the light most favorable to the nonmoving party.” Id. at 631. (citation omitted).
Titus worked as an employee of the City for approximately 23 years. Titus Dep. at 13:8–12.1 He began in 1985 in general maintenance, and was ultimately promoted to Public Works Director. Id. He continued in this position until his termination on April 2, 2008.
The City is a municipal corporation located in Grant County, Oregon, which has an approximate population of 1, 100. Aff. of Stan Horrell in Supp. of Mot. for Summ. J. (“Horrell Aff.”) at 2. Horrell has been the City's mayor since January 1, 2007, and served as Titus' immediate supervisor at the time of his dismissal. Id., Ex. 120. He also served as a voting member of the City Council, along with six other members of the City Council (Harrington, Coe, McKinley, Primozic, Woodworth, Munyon) who have also been named as defendants in the present case.
Clingman is the City Recorder, and served in this position at all relevant times. Aff. of Diane Clingman in Supp. of Mot. for Summ. J. (“Clingman Aff.”) at 2. She is not a member of the City Council and therefore has no voting power. However, she regularly attends City Council meetings because her job responsibilities include preparing information for the City Council and documenting the minutes for those meetings. Id. Bass is the City Recorder for the City of John Day, Oregon, and served in this position at all relevant times. Aff. of Anna Bass in Supp. of Mot. for Summ. J.(“Bass Aff.”) at 2. She was also a member of Prairie City's City Council from January 2002 to December 2004. Id.
On March 6, 2008, Titus told Horrell that he was going to the doctor. 2 Horrell Aff. at 2. Titus returned later that day with a doctor's note, which stated, “Please give Bob off until April 15th for medical reasons.” Horrell Aff. Ex. 101. Titus was granted sick leave until April 15, 2008. Horrell Aff. at 2.
[802 F.Supp.2d 1219]
Several days after Titus requested sick leave, a City employee told Horrell that a John Day police officer had seen Titus working on a sidewalk construction project in John Day. Id. Horrell also received two to three phone calls during March 2008 from citizens reporting that they had also seen Titus working in John Day. Id. On March 17, 2008, Horrell received an anonymous handwritten letter from a citizen commenting that Titus “ha[d] worked very little since Nov[.]” Horrell Aff. at 3, Ex. 102. The letter also stated that the citizen had heard Titus was on medical leave, and was “now working for Dice Const. on John Days [ sic ] sidewalk[.]” Id. The citizen requested that Horrell “[f]ire Mr. Titus and get someone to work for the people of [the City] who care [ sic ] .... [and to] look into [the matter].” Id.
The City's Personnel Policy (“Personnel Policy”), adopted by the City Council on March 9, 2000, prohibits regular employees from “accept[ing] outside employment whether part-time, temporary, or permanent, without prior written approval from the City Council.” Horrell Aff. Ex. 112 at 21. The Personnel Policy also prohibits the abuse of sick leave privileges, stating “[a]buse of sick leave privileges shall be cause for dismissal.” Id. at 48.
After receiving the complaints, Horrell wrote a letter to Titus dated March 20, 2008. It stated, in relevant part:
Because you have apparently been working in a position substantially similar to your City job while you are off on “medical” leave, the City is considering disciplinary action. The City has not decided what, if any, discipline may be appropriate, but all levels of discipline are being considered up to and including termination.
Please be advised that your behavior violates the City's personnel rules, specifically:
Section 2.11 Outside Employment
2.11.1 No regular employee shall accept outside employment whether part-time, temporary, or permanent, without prior written approval from the City Council.
Section 6.3 Sick Leave
6.3.6 Abuse of the sick leave privilege shall be cause for dismissal.
You have the opportunity to address the City Council and respond to this letter at Executive Session on Wednesday, March 26, 2008 at the end of the regular 6:30 p.m. City Council meeting. The purpose of the Executive Session is to allow you to explain or contest our findings or provide mitigating facts. Your statements will be reviewed carefully before any decision is finalized.
If you prefer, you can submit a written explanation to the City, however, it must be received by me by 5:00 p.m. Tuesday, March 25, 2008. If you do not respond, I will conclude that you intend for the City Council to decide the matter based upon the information they now have.
Horrell Aff. Ex. 103, at 1–2.
In response to the letter, Titus called Horrell on March 21, 2008, and March 22, 2008. Horrell Aff. at 3–4. Horrell took handwritten notes of the conversations. Id. Ex. 104. The notes provide, in pertinent part: “[Titus'] doctor told him it would be good therapy for him to work and get over his problem ... [and] he would have his doctor write [the City Council] a letter when [his doctor got] back after the 31st.” Id.
Pursuant to the terms of the March 20, 2008, letter, Titus sent a written explanation to the City Council dated March 23, 2008, which stated:
To Whom It May Concern: It is my understanding that the social and economic well being of the City is dependent upon Healthy and Productive Employees. The responsibility of the Employer is to provide a safe and healthy workplace.
[802 F.Supp.2d 1220]
Health endangering in the workplace includes: bullying, abuse & harassment that seriously affect targeted employees.
Some of the affects of such bullying include but are not limited to: feelings of shame & humiliation, stress, loss of sleep, severe anxiety, depression, post traumatic stress disorder, reduces immunity to infection, stress related gastrointestinal disorders, hypertension and path [ sic ] physiological changes that increase the risk of cardiovascular diseases.
It was also my understanding if an Employer had questions about the honor & integrity of an Employee regarding their work ethics, their Employer would in fact conduct an investigation, which might include visiting with the employee, before coming to any conclusion regarding a disciplinary action, especially if the information they were basing their decision on was based solely on gratuitous sabotage.
In that light, let it be known that I, Bob Titus, deny any and all charges as outlined in the certified letter that I received on March 21, 2008.
Horrell Aff. Ex. 105.
Carrol Titus, Titus' wife, also sent a letter, dated March 25, 2008. Horrell Aff. Ex. 106. It alleged, among other things, that the City Council was harassing Titus, and stated her dissatisfaction that no one from the City had contacted Titus to discuss to the matter. Mrs. Titus also offered to obtain a letter from Titus' doctor after the doctor returned from vacation. Id.
On March 26, 2008, the City Council held an executive session to discuss the issue. Horrell Aff. at 4. Titus did not attend the session, but did...
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