Biggs v. City of St. Paul

LORRIE BIGGS, Plaintiff, v. CITY OF ST. PAUL, an Oregon Municipal Corporation; KIMBALL WALLIS,an Individual; and LAURA SCHROEDER, an Individual, Defendants.

LEE KOCH, Plaintiff, v. CITY OF ST. PAUL, an Oregon Municipal Corporation;

LAURA SCHROEDER, an Individual; and KIMBALL WALLIS, Defendants.

Case No.: 6:18-cv-00506-MK (Lead Case)

Case No.: 6:18-cv-00507-MK (Member Case)

UNITED STATES DISTRICT COURT DISTRICT OF OREGON EUGENE DIVISION

May 5, 2020

FINDINGS AND RECOMMENDATION

RE: DEFENDANT'S MOTION TO DISMISS

KASUBHAI, Magistrate Judge:

Plaintiff Lorrie Biggs and Plaintiff Lee Koch each filed a separate action (respectively, "Biggs' Action" and "Koch's Action") against their former employer, Defendant City of St. Paul, Oregon ("City"), and Kimball Wallis and Laura Schroeder, alleging First Amendment violation under 42 U.S.C. § 1983, various violations of Oregon Revised Statute Chapter 659A, and various common law claims including Intentional Infliction of Emotional Distress ("IIED") and defamation. The Court consolidated Biggs' Action and Koch's Action for purposes of discovery and dispositive motions. Biggs' Action, ECF No. 36; Koch's Action, ECF No. 38.

The Court previously granted Defendants' Motion to Dismiss Biggs' First Amended Complaint ("FAC"), allowing Biggs leave to amend. ECF Nos. 56, 67^{1 2}. Biggs filed a Second Amended Complaint ("SAC") alleging the following claims. ECF No. 74.

Claim I

Count I - ORS 659A.203 Against the City

Count II - ORS 659A.230 Against the City

Claim II

42 U.S.C. § 1983 First Amendment Against the City

Claim III

42 U.S.C. § 1983 First Amendment Against Wallis and Schroeder

Claim IV

ORS 659AA.030(1)(g) Against Wallis and Schroeder

Claim V

Intentional Infliction of Emotional Distress Against the City

Claim VI

Intentional Infliction of Emotional Distress Against Wallis

Claim VII

Defamation Against Wallis and Schroeder

Claim VIII

Public Disclosure of Private Facts Against Wallis

Claim IX

False Light Against Wallis

Claim X

ORS 659A.030(1)(f) Against the City

Before the Court is Defendant's Motion to Dismiss Plaintiff Biggs' Second Amended Complaint. ECF No. 78. For the reasons set forth below, Defendant's Motion to Dismiss (ECF No. 78) should be GRANTED in part and DENIED in part as follows:

Claim I

Count I: DENIED

Count II: GRANTED (dismissed with prejudice)

Claims II & III

DENIED

Claim IV

DENIED

Claim V & VI

DENIED

Claim VII

GRANTED

Claim VIII

GRANTED

Claim IX

GRANTED

Claim X

GRANTED (dismissed with prejudice)

BACKGROUND

In the SAC, paragraph 7 (subparagraphs (a) to (xxx)) and paragraph 8 (subparagraphs (a) to (nnnnnnnnn)) allege extensive facts concerning Biggs' whistleblowing complaints and disclosures as well as Defendants' conduct. SAC ¶¶ 7-8, ECF No. 74. A comparison of the SAC and the FAC reveals that the facts alleged in their respective paragraphs 7-8 are substantially the same with certain discrete additions and revisions. Compare SAC ¶¶ 7-8, ECF No. 74 with FAC ¶¶ 7-8, ECF No. 40.³ Paragraph 5 of the SAC includes new allegations primarily concerning the job duties Defendants allegedly removed from Biggs' responsibilities. Compare SAC ¶ 5, ECF No. 74 with FAC ¶ 5, ECF No. 40.

The Court quotes the Background in its prior Findings and Recommendation ("F&R") forthe facts that remain largely the same in the SAC. F&R 4-8, ECF No. 56.

I. Same facts alleged in the FAC and SAC (stated in the previous F&R, ECF No. 56⁴)

Biggs began working for the City in 2005 as the City Recorder, taking on additional duties as City Treasurer in 2007. ECF 40, ¶5. Per the City Charter, Biggs was supervised by and reported to City Council. ECF 40, ¶5.

In November 2014, Biggs complained to City Council that Wallis, then mayor-elect, had asked her to take actions and do work that she believed violated the City's charter. ECF 40, ¶7(c). In February 2015, Biggs complained to various individual council members, to City Council, to the City's insurance provider, and to the then-city attorney about Defendant Wallis' conduct towards her, characterizing it as harassment and as retaliatory. ECF 40, ¶7(f)-(h),(m),(u).(v). Nonetheless, Biggs routinely informed Wallis that he was acting outside of his authority. For example, in March 2015, Biggs told Wallis that he did not have authority to waive permit fees for the rodeo association. ECF 40, ¶7(j). That same month, Biggs filed a grievance with City Council alleging a hostile work environment, whistleblowing, and sexual harassment. ECF 40, ¶7(j). Throughout 2015, frustrated by the apparent lack of action, Biggs complained to City Council on multiple occasions that her grievance had not been addressed. ECF. ¶7(r)(s)(ee).

Biggs' relationship with Wallis continued to deteriorate. She continued to complain to individual City Councilors about Wallis' conduct towards her, but Councilors told Biggs they did not know what to do. ECF 40, ¶7(u). In November 2015, Biggs filed a worker's compensation claim based upon Wallis' conduct towards her. ECF 40, ¶7(v). Subsequently, during a City Council meeting, Wallis presented a document that purported to show Biggs' wages. Biggs challenged the accuracy of the document and Wallis accused Biggs of fraud, which Biggsdenied. ECF 40, ¶7(w). Wallis continued to make false and unfounded insinuations that Biggs engaged in fraud. ECF 40, ¶8(ooo), (ttt),(uuu),(ccccc).

Biggs regularly complained [to] council member about how staff were treated by Wallis at City Council meetings. ECF 40, ¶¶7(dd) 8(dddd),(llll). From October 2016 through September 2017, Biggs made numerous complaints to City Council, individual councilors, and Schroeder regarding Wallis' use of social media, including blocking Plaintiff [Biggs] from the Facebook page Wallis maintained as a "community" page, and alleging that he violated the City's social media policy by posting disparaging, false, or misleading statements about city staff. ECF 40, ¶7(mm)(nn)(bb)(ss)(bbbb)(ffff). In September 2016, Biggs complained that, due to posts on Wallis' "community" Facebook page, she had received an inquiry from the news station about city water causing people's hair to fall out and making people sick. ECF 40, ¶7(ii). Biggs subsequently questioned Wallis' public posts on his "community" Facebook page about the city's water issues after he had instructed staff to refer all questions about city water to himself or Schroeder. ECF 40, ¶7(uu).

At a City Council meeting in October 2016, Biggs voiced her opinion that the City should not waive fees for water usage for the Fire Department because it was unfair for tax payers within the city limits to carry the burden of the entire fire district. Biggs also questioned why the City spent $10,000 to install a water meter and vault at the fire station if the City had not intended to bill the fire station for its usage. ECF 40, ¶(oo).

In November 2016, Plaintiff Biggs complained to City Council that Wallis excluded her from meetings regarding projects she was assigned to, and in January 2017 she complained that Wallis and Schroeder were "taking over" her job duties and excluding her involvement. ECF 40,¶7(ww)(zz)(aaa). In December 2016, she filed a tort claim notice, alleging discrimination, whistleblowing, and other claims. ECF 40, ¶7(xx).

In April 2017, Biggs raised multiple concerns regarding Schroeder's bills for legal services. ECF 40, ¶7(lll),(mmm),(nnn),(ppp). Biggs also voiced concern, via e-mail, that City Council was regularly making expenditures without first checking with Biggs to verify whether the funds were budgeted; Biggs reported that the general fund was $50,000 over budget and that City Council was violating state budget laws. ECF 40, ¶7 (ooo). A month later, Biggs voiced similar concerns regarding expenditures and the City's failure to include her, as treasurer, in its spending discussions. ECF 40, ¶7(rrr).[]

In June 2017, Biggs complained at a City Council meeting that Wallis spent city funds without authorization at a business in which City Councilor Dolan was a partner. ECF 40, ¶7(sss). At the same council meeting, Biggs alleged that Schroeder charged the City for work she had not completed, and voiced concerns that Council was making spending decisions in executive sessions and hiding the expenditures from herself and the public. ECF 40, ¶7(ttt)(uuu). A couple of days later, Biggs sent a complaint to City Council stating that she could not perform her duties as treasurer when individual council members and Wallis made expenditures without spending authority. ECF 40, ¶7(vvv). At the end of June[] 2017, Biggs contacted Councilor Waldo and informed him that she needed time off because of the constant harassment. ECF 40¶[] 7(xxx).

In July 2017 Biggs contacted the Marion County Sheriff's Office to report that city hall had been broken into, apparently by Wallis. ECF 40 ¶7(yyy). A couple days later, Biggs told Councilor Waldo that his involvement in "breaking in" to City hall was likely illegal and that neither he nor Wallis had authority to break in or to hire a locksmith. ECF 40, ¶7(zzz). Shortlythereafter, Plaintiff [Biggs] reported (it is unclear to whom) that all three city recording devices were missing. ECF 40, ¶¶7 (aaaa),(yyy), 8(wwwwwww).

In September 2017, Biggs sent Schroeder an e-mail inquiring why her office billed the City $560 to fix Schroeder's office's billing issue. ECF 40, ¶7(dddd). At a subsequent city council meeting, Plaintiff [Biggs] complained that Wallis and individual councilors continued to engage Schroeder without spending authority to do so. Plaintiff [Biggs] alleged that spending on legal fees had been excessive. ECF 40, ¶7(eeee). In October 2017, at a city council meeting, Plaintiff [Biggs] complained that Wallis continued to make unauthorized expenditures. Plaintiff [Biggs] also complained that there was no accountability for tasks assigned to Schroeder and suggested that cost estimates and scopes of work be generated for large projects not covered under the...