Bourgo v. Canby School Dist., No. CR 99-1402-BR.

Page 1173

167 F.Supp.2d 1173

Henry M. BOURGO, Plaintiff, v. CANBY SCHOOL DISTRICT, a public body corporate and political subdivision of the State of Oregon, Defendant.

No. CR 99-1402-BR.

United States District Court, D. Oregon.

March 21, 2001.

James M. Brown, Loren W. Collins, Enfield Brown Collins Knivila & Cook, Salem, OR, for Plaintiff.

Karen M. Vickers, David A. Ernst, Bullivant Houser Bailey, Portland, OR, for Defendant.

OPINION AND ORDER

BROWN, District Judge.

This employment discrimination case comes before the Court on Defendant's Motion for Summary Judgment (# 23). For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART.

THE FIRST AMENDED COMPLAINT

Plaintiff is a licensed public school administrator who worked for Defendant from 1990 through June 1999. In 1998, Defendant reassigned Plaintiff from his job as a principal to a newly created position that combined administrative and counseling duties. In early 1999, Plaintiff allegedly was diagnosed as suffering from disabling anxiety and, thereafter, Major Depressive Disorder. Plaintiff took an extended medical leave beginning February 1, 1999. On June 7, 1999, Defendant's superintendent advised Plaintiff he intended to recommend to Defendant's Board of Directors that Plaintiff be dismissed. The Board voted to dismiss Plaintiff on June 28, 1999.

Plaintiff appealed Defendant's termination decision to the Oregon Fair Dismissal Appeals Board (FDAB). After a hearing, the FDAB voted to uphold Plaintiff's termination. Plaintiff did not seek direct judicial review of the FDAB's decision. Instead, Plaintiff filed his First Amended Complaint in this action shortly after the FDAB decision issued.

In his First Amended Complaint, Plaintiff first alleges Defendant dismissed him "to avoid plaintiff's rights under the [Family Medical Leave Act (FMLA)] to utilize accrued sick leave and, when medically appropriate, to return to his employment." In his Second Claim for Relief, Plaintiff alleges Defendant violated the Americans with Disabilities Act (ADA) by terminating Plaintiff because of his disability even though Plaintiff's "physical and mental impairments, with reasonable accommodation, would not have prevented plaintiff from performing the essential functions of his position with defendant." Plaintiff brings a similar Third Claim for Relief pursuant to Oregon state disability law.

In his Fourth Claim for Relief, Plaintiff alleges Defendant committed the tort of intentional infliction of emotional distress (IIED) when it withheld a portion of Plaintiff's salary upon reassigning his job duties in 1998, threatened him with withholding of salary if he declined to apply for worker's compensation benefits, and brought dismissal proceedings against him for declining to apply for worker's compensation benefits. In addition, Plaintiff alleges Defendant intentionally inflicted emotional distress on him when it published the news of his dismissal. Defendant denies it discriminated against Plaintiff or intentionally inflicted emotional distress on him.

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant moves for summary judgment against all of Plaintiff's claims. Defendant's contends primarily that "[t]he FDAB decision provides a preclusive finding that Plaintiff was terminated for a legitimate, non-discriminatory reason." By implication, Defendant argues the FDAB decision precludes this Court from determining that Defendant terminated Plaintiff's employment to avoid its FMLA obligations to Plaintiff or to retaliate against Plaintiff for having exercised his FMLA rights. Alternatively, Defendant argues the undisputed material facts show it terminated Plaintiff's employment for a legitimate, nondiscriminatory reason.

Defendant also argues the FDAB decision precludes Plaintiff from pursuing an ADA claim in this action. Defendant further contends the undisputed facts establish Plaintiff was not a "qualified individual with a disability" protected by the ADA. Defendant makes similar arguments with regard to Plaintiff's state-law disability claim.

Finally, Defendant contends it is entitled to summary judgment on Plaintiff's IIED claim because the acts alleged "do not constitute a transgression beyond the bounds of socially tolerable conduct."

ANALYSIS

I. Summary Judgment Standard

Under Fed.R.Civ.P. 56:

Summary judgment should be granted if "there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." If the moving party shows that there are no genuine issues of material fact, the non-moving party must go beyond the pleadings and designate facts showing an issue for trial. A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact. The underlying substantive law governing the claims determines whether or not it is material. Reasonable doubts as to the existence of material factual issue[s] are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party. There must be enough doubt for a "reasonable trier of fact" to find for plaintiffs in order to defeat the summary judgment motion.

Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000) (citations omitted).

II. Defendant Is Not Entitled to Summary Judgment on Plaintiff's FMLA Claim

A. The FDAB Process

Defendant contends Plaintiffs' FMLA and ADA claims are precluded by the findings of the FDAB. An examination of the FDAB's role is necessary to an understanding of the extent to which its decision may have preclusive effect in this action.

When an Oregon school district dismisses a teacher or administrator, the dismissed person may appeal that decision to the FDAB. Or.Rev.Stat. § 342.905(1). A hearings officer conducts a contested case hearing and files proposed findings of fact. Id. § 342.905(5). The FDAB then provides the parties with a reasonable opportunity for oral and written argument and issues a written decision within 140 days. Id. § 342.905(7).

The Fair Dismissal Appeals Board panel shall determine whether the facts relied upon to support the statutory grounds cited for dismissal or non-extension and included in the hearings officer's findings of fact are true and substantiated. The panel's review of the evidence shall be de novo. If the panel finds these facts true and substantiated, it shall then consider whether such facts, in light of all the circumstances and additional facts found by the hearings officer that are relevant to the statutory standards in ORS 342.865(1), are adequate to justify the statutory grounds cited. In making such determination, the panel shall consider all reasonable written rules, policies and standards of performance adopted by the school district board unless it finds that such rules, policies and standards have been so inconsistently applied as to amount to arbitrariness. The panel shall not reverse the dismissal or non-extension if it finds the facts relied upon are true and substantiated unless it determines, in light of all the evidence and for reasons stated with specificity in its findings and order, that the dismissal or non-extension was unreasonable, arbitrary or clearly an excessive remedy.

Id. § 342.905(8). FDAB decisions are subject to judicial review under the Oregon Administrative Procedures Act. See id. § 342.905(11).

B. Issues Decided in Other Proceedings May Have Preclusive Effect in FMLA Litigation

Defendant contends the FDAB decision establishes conclusively that Defendant terminated Plaintiff's employment because of Plaintiff's poor job performance rather than for some other reason. Plaintiff first responds that state administrative decisions never have preclusive effect in FMLA litigation. Defendant disagrees. The parties have not identified, and the Court has not found, any published federal opinion that addresses this issue directly.¹

Federal courts have addressed generally the circumstances under which state administrative decisions may have preclusive effect in subsequent federal litigation. The Full Faith and Credit Clause and 28 U.S.C. § 1738 govern the preclusive effect federal courts must give to the judgments of state courts. University of Tennessee v. Elliott, 478 U.S. 788, 794, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986). Those provisions do not apply to state administrative agency decisions that have not been judicially reviewed. Id. As a matter of common law, however, the unreviewed final decision of a state administrative agency still may have preclusive effect in federal litigation. See Astoria Federal Savings & Loan Assoc. v. Solimino, 501 U.S. 104, 107, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). Indeed, there is a presumption that preclusion applies except when Congress expressly or impliedly has demonstrated a contrary intent. Id. at 110, 111 S.Ct. 2166. The Supreme Court has found such Congressional intent with regard to Title VII because that statute requires the EEOC to give substantial weight to the findings of state and local authorities in proceedings brought under state or local discrimination law, which implies those findings are not conclusive:

In Elliott, which ... dealt with Title VII, the test for the presumption's application was thus framed as the question "whether a common-law rule of preclusion would be consistent with Congress' intent in enacting [the statute]." In contrast to 42 U.S.C. § 1983, in which the Court discerned "`[n]othing ... remotely express[ing] any congressional intent to contravene the common-law rules of preclusion,'" Title VII was found by implication to comprehend just such a purpose in its direction that the EEOC accord "`substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local [employment discrimination] law.'" What does not preclude a federal agency cannot preclude a federal court; we accordingly held that in ...