Moore v. Portland Pub. Sch.

328 Or.App. 391

537 P.3d 544

Joyce MOORE, an individual; Virginia Ferrer-Burgett, an individual; Cassie Gamez, an individual; Arline Weaver, an individual; Sarah Conley, an individual; Debra Meskimen, an individual; Angela Gonci, an individual; and Julie Manzella, an individual, Plaintiffs-Appellants,

v.PORTLAND PUBLIC SCHOOLS, Public School District #1 a public entity; Mary Pearson, an individual; Michael Laframboise, an individual; Theresa Stubbs, an individual; and Andres Porter-Lopez, an individual, Defendants-Respondents,andKristen Weiler, Defendant.

Theresa Demma, an individual, Plaintiff-Appellant,

v.Portland Public Schools, Public School District #1, a public entity; Reiko Williams, an individual; Jon Williams, an individual; Teresa Stubbs, an individual; Karly Lefferts, an individual; and Michael Conn, an individual, Defendants-Respondents.

A173665 (Control), A174162

Court of Appeals of Oregon.

Argued and Submitted October 5, 2021

September 27, 2023

Rebecca Cambreleng, Portland, argued the cause for appellants. Also on the briefs were Crispin Marton Cambreleng and Alana G. I. Simmons and The Dalton Law Firm.

Michael Porter, Portland, argued the cause for respondents. Also on the brief were Ivan Resendiz Gutierrez and Miller Nash Graham & Dunn LLP.

Caitlin Mitchell and Johnson Johnson Lucas & Middleton PC and Elizabeth C. Savage, Portland, and Karmel Savage, PC, filed the brief amicus curiae for Oregon Trial Lawyers Association.

J. Aaron Landau, Sharon A. Rudnick, Eugene, and Harrang Long Gray Rudnick PC filed the brief amicus curiae for Oregon School Boards Association.

Janet M. Schroer, Portland, Ruth A. Casby and Hart Wagner LLP filed the brief amicus curiae for League of Oregon Cities and Association of Oregon Counties.

Before Egan, Presiding Judge, and Lagesen, Chief Judge, and Nakamoto, Senior Judge.^*

NAKAMOTO, S. J.

This consolidated appeal arises out of two cases, Moore et al. v. PPS et al. (Case No. 18CV49922) and Demma v. PPS et al. (Case No. 19CV26384), brought by plaintiffs who worked as paraeducators in special education classrooms within defendant Portland Public Schools (PPS). Asserting a range of claims, plaintiffs alleged that they repeatedly and regularly were subjected to physical assaults, and in some instances sexual assaults, by students, but, despite complaints and entreaties to PPS and various individual employees of PPS named as defendants, defendants failed to correct or ameliorate their working conditions.

In each case, the trial court dismissed the individual defendants under ORS 30.265, the provision of the Oregon Tort Claims Act (OTCA) that provides for a "sole cause of action" against a public body for the torts of its employees committed within the course and scope of their employment. The trial courts then dismissed most of plaintiffs’ claims—including claims of employment discrimination and claims of battery—either because the claims were untimely or because plaintiffs had failed to state a claim upon which relief can be granted. For the reasons that follow, we conclude that the trial court in Moore erred in dismissing Conley's disability discrimination claim and plaintiffs’ sex discrimination claims based on a hostile work environment theory and by substituting PPS for the individual defendants. We further conclude that both trial courts in Moore and Demma erred by dismissing plaintiffs’ claims that PPS is directly liable for battery. We otherwise affirm.

I. BACKGROUND

We begin by describing procedural background facts for each case. We later discuss some of plaintiffs’ allegations in more detail when analyzing their assignments of error as to specific claims for employment discrimination and for battery.

A. Moore et al. v. PPS et al.

Plaintiffs in Moore are eight female paraeducators who were employed by PPS and worked in special education classrooms. During the time period relevant to the claims, plaintiffs Moore and Ferrer-Burgett worked at Woodlawn Elementary School. The remaining plaintiffs, Conley, Gonci, Meskimen, Manzella, Weaver, and Gamez, worked at either Sunnyside Environmental School or Buckman Elementary School.

On May 21, 2018, Moore, through her attorney, sent an " ORS 30.275 Tort Claim Notice" to PPS. In it, she notified PPS of her intent to file one or more claims for damages against PPS "and/or one or more of its officers, employees, or agents." The notice stated, in relevant part:

"Ms. Moore's claims include negligence, intentional infliction of emotional distress, discrimination, retaliation, interference with workers’ compensation, and other violations of state law.

"Ms. Moore has been a loyal district employee for over 26 years. In the last few years she has been the victim of appalling behavior by [PPS] including retaliation against her for use of worker's compensation, subjecting her to daily sexual and physical assault and battery without recourse or ways to report the attacks or to create a safe space, for racial discrimination, and for knowingly, deliberately, and with wanton and reckless disregard putting her in situations where there is a high likelihood of bodily injury."

The same day, Ferrer-Burgett, through her attorney, sent a similar tort claim notice to PPS. It stated, in relevant part:

"Ms. Ferrer-Burgett's claims include negligence, intentional infliction of emotional distress, and other violations of state law.

"Ms. Ferrer-Burgett has been a loyal district employee and has over 20 years of experience working with children. But in the last 2 years while working at Woodlawn she has been the victim of appalling behavior by [PPS] including daily sexual and physical assault and battery without recourse or ways to report the attacks or to create a safe space, and for knowingly, deliberately, and with wanton and reckless disregard putting her in situations where there is a high likelihood of bodily injury."

Nearly six months later, on November 1, 2018, Moore and Ferrer-Burgett filed this action against PPS and two individual defendants, the principal of Woodlawn Elementary School and a risk management employee for PPS. Moore and Ferrer-Burgett alleged that "they were subject to daily assaults and battery to their persons by students, including sexual assaults and battery," and they asserted multiple claims for relief.

On December 10, 2018, the remaining plaintiffs, through their attorneys, sent a tort claim notice to PPS. The notice stated, in relevant part:

"The potential claims include general tort claims for assault and battery, negligence, hostile work environment, intentional infliction of emotional distress, retaliation and other violations of state and/or federal law.

"Our clients, and many like them, continue to be the victims of appalling behavior by [PPS] including intentionally subjecting them to daily sexual and physical assaults and battery and for knowingly, deliberately, and with wanton and reckless disregard putting them in situations where there is a high likelihood of bodily injury."

On January 28, 2019, plaintiffs filed a first amended complaint in which they amended claims asserted by Moore and Ferrer-Burgett and added claims by the other plaintiffs. The amended complaint also dropped the risk management employee as a defendant and added three other individual defendants: the senior director of special education for PPS and the principal and vice-principal of PPS's Pioneer Program.

In the amended complaint, Moore and Ferrer-Burgett again alleged that in the classrooms where they worked, "they were subject to daily assaults and battery to their persons by students, including sexual assaults and battery." Gamez and Weaver alleged that in the classrooms where they worked, they "were repeatedly and consistently assaulted by students over the years, and requested help from administrators at every turn." Conley, Meskimen, Gonci, and Manzella alleged that in their classrooms, they faced ongoing physical assaults from one particular student, identified in the complaint as "Student B." In addition to being physically violent, student B, they alleged, acted out sexually toward Conley, Meskimen, Gonci, and Manzella.

Several plaintiffs alleged that they experienced similar assaultive conduct by two other specific students, identified as "Student A" and "Student C," as well as from other students. Based on those facts, all plaintiffs in Moore alleged, among other claims, (1) a claim for battery against PPS and (2) an unlawful employment practices claim under ORS 659A.030 based on a hostile work environment against all defendants.

Defendants moved to dismiss under former ORCP 21 A(1) (2018), renumbered as ORCP 21 A(1)(a) (2022), former ORCP 21 A(8) (2018), renumbered as ORCP 21 A(1)(h) (2022), and former ORCP 21 A(9) (2018), renumbered as ORCP 21 A(1)(i) (2022). Pertinent to this appeal, defendants asserted that (1) ORS 30.265(3) required dismissal of the individual defendants, because the complaint established that their actions were within the scope of their employment with PPS and, as a result, plaintiffs’ sole cause of action was against PPS; (2) plaintiffs’ tort claims notices failed to identify the "time, place, and circumstances giving rise to their claims," which ORS 30.275(4) mandates, requiring dismissal of any claims based on conduct occurring more than 180 days before the filing of the complaint; (3) plaintiffs failed to state a claim for a hostile work environment under ORS 659A.030 ; and (4) plaintiffs failed to state a claim for battery because the gravamen of their claim was that PPS did not respond to plaintiffs’ complaints that students had committed battery against them, which is insufficient to establish the elements of the intentional tort.

The trial court granted the motions. First, it granted the motion to dismiss the individual defendants "because [PPS] is the only proper defendant in accordance with the sole cause of action provisions of the [Oregon Tort Claims Act (OTCA)]."

Second, it determined that the tort claims notices...