Stensland v. City of Wilsonville

JADENE STENSLAND, Plaintiff,

v. CITY OF WILSONVILLE, a municipality incorporated in the State of Oregon; MICHAEL BOWERS, an individual;andMICHAEL STONE, an individual; Defendants.

No. 03:11-cv-00490-HU

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

Dated: December 14, 2011

MEMORANDUM OPINION AND ORDER

ON MOTION FOR PARTIAL

SUMMARY JUDGMENT

AND MOTION TO DISMISS

Abraham J. Barnett

The Barnett Firm, LLC

Attorney for Plaintiff

John Kreutzer

Brian K. Weeks

Smith Freed & Eberhard P.C.

Attorneys for Defendants

HUBEL, Magistrate Judge:

INTRODUCTION

The plaintiff Jadene Stensland brings this employment action against her former employer, City of Wilsonville (the "City"); her former direct supervisor, Michael Stone; and Stone's direct supervisor, Michael Bowers. The case is before the court on the defendants' motion seeking partial summary judgment as to certain of Stensland's claims, and dismissal of certain of her claims. Dkt. #10.

BACKGROUND FACTS

On March 14, 2006, the City extended an offer of employment to Stensland by way of a letter. Among other things, the letter specified that "[t]he Deputy City Engineer - Capital Projects position[] is an at will position which serves at the pleasure of the City Manager. All city management employees have signed a statement that they understand this status." Dkt. #13, Decl. of Andrea M. Villagrana (the City's Human Resources Manager), Ex. 1, p.1. On March 17, 2006, Stensland accepted the employment offer by signing the bottom of the letter evidencing her agreement with the terms and conditions of employment outlined in the letter. Id., p. 2.

Enclosed with the letter offer was the City's "Manager Staff Directive #41," which stated as follows:

Management/Confidential At-Will Status

The City Manager has the final authority in the appointment, removal, and supervision of all management/confidential employees, withthe exception of those appointed directly by the City Council (City Attorney, Judge).

Management/Confidential employees are employed at-will and the City and its employees mutually reserve the right to end the employment relationship, with or without cause, at any time.

. . . In lieu of individual contracts, management/confidential employees shall sign this staff directive indicating receipt and understanding of the terms of employment with the City of Wilsonville.

Id., Ex. 2; Dkt. #20-2, Amended Decl. of Plaintiff, Directive #41 (ECF p. 34 of 46). Stensland signed a legend at the bottom of Directive #41, indicating, "I, Jadene Stensland[,] have received and read a copy of this City Manager Directive regarding my at-will status as an employee of the City of Wilsonville." Id.

The City does not have an employee handbook, but does have a set of City Manager Staff Directives (collectively, the "Staff Directives") setting forth key policies and procedures of the City. Dkt. #14, Decl. of Michael Kohlhoff (City Attorney), ¶ 3; Dkt. #20, ¶ 22 & Ex. C. A copy of the Staff Directives was provided to Stensland during the course of her employment with the City. Dkt. #20, ¶ 22. The Staff Directives include, among other things, Directive #41, quoted above; Directive #11, describing the City's Administrative Leave policy; Directive #18, explaining the timing of performance evaluations, and their distribution by the Human Resources Assistant; and Directive #27, the City's anti-harassment and anti-discrimination policies and procedures. See Dkt. ##20-1 & 20-2.

Stensland began working for the City on April 24, 2006. She alleges that beginning at some point in 2008, and continuing untilher termination in the spring of 2010, she was subjected to ongoing gender-based discrimination and sexual harassment by Gerald Fisher, an employee under her direct supervision, and whom she claims is "a close personal friend" of Stone's. Dkt. #1, ¶ 9. Specifically, she alleges the following:

a) Fisher "engage[d] in insubordinate behavior directed at [Stensland's] gender" including, without limitation, "openly expressing his unwillingness to be supervised by a woman." Dkt. #1, ¶ 9; Dkt. #20, ¶ 11.

b) In September 2008, Stensland completed an annual review of Fisher "which included comments relating to needed improvement of his communication and social skills." Dkt. #20, ¶ 6. Stone directed her to revise the report to indicate Fisher was exceeding expectations in all categories. Id.

c) Stensland "received in her departmental inbox a 1950's magazine article, which stated boldly, 'Women should know their place[.]'" Id., ¶ 12; see Dkt. #20, Ex. B (article entitled "The good wife's guide," stating, inter alia, "A good wife always knows her place."). Stensland believed the article "was a matter of harassment and discrimination based on [her] status as a woman[.]" Dkt. #20, ¶ 13. Stone failed to address her complaint regarding the article. Id.

d) Stone told Stensland and the company's Human Resources Manager that Fisher did not want to work for a woman, and it would be better if Fisher reported directly to Stone. Dkt. #1, ¶ 15; Dkt. #20, ¶¶ 10 & 11.e) Stensland recommended, in the summer of 2009, that Fisher be terminated "based on his continued insubordinate and inappropriate behavior, which was primarily directed at [Stensland's] gender." Stone verbally reprimanded her for this recommendation, explaining that managers could only be terminated in accordance with certain disciplinary procedures set forth in the City's "Staff Directives" manual. Stone allowed Stensland to give Fisher a verbal warning. Dkt. #1, ¶¶ 16-17.

f) Stensland conducted a standard performance evaluation of Fisher on or about September 4, 2009, which included a recitation of Fisher's insubordinate behavior. On or about September 11, 2009, Stone ordered Stensland to amend the evaluation "to remove all references to any insubordinate behavior." Id., ¶¶ 18-19. Stensland was threatened with termination if she refused to make the changes. Dkt. #20, ¶ 14.

g) Stensland was "reassured" by Stone that "discipline for Managers follows the union process," and she would not be terminated until she had "received a verbal warning, followed by a written warning and provided with a work-plan to help [her] succeed." Id., ¶ 15.

h) In the fall of 2009, Fisher told his co-workers that he and Stone "had conceived a plan to push [Stensland] 'out of the picture[.]'" Fisher "showed co-workers a new organizational chart which included Fisher in [Stensland's] position, and did not include [Stensland]at all." Stensland reported the matter to Stone, but no action was taken. Dkt. #1, ¶¶ 20-22.

i) Following Fisher's comments to his co-workers, a rumor began circulating about Stensland being forced out, and sometime thereafter, her "project assignments decreased from an average of six active assignments to one." Id., ¶ 24. In February 2010, her supervisory authority over Fisher was revoked, and her duties were decreased, "accommodating Fisher's unwillingness to work for a woman by having Fisher report directly to Stone." Id., ¶ 26. j) Stensland also reported the ongoing hostile work environment to Bowers during the winter of 2009-2010 and spring of 2010. To her knowledge, no investigation ever took place in response to her complaints. Id., ¶¶ 27-28.

Stensland alleges that prior to her complaints about Fisher's discriminatory and harassing behavior, and the resulting hostile work environment, her performance evaluations always were satisfactory in all respects. She claims that in April 2010, Bowers approached her to discuss her work assignments, and during their meeting, Bowers "assured" her that a management-level employee could not be fired for performance-related issues "without first being counseled and given the opportunity to improve in those areas." Id., ¶¶ 31-32. However, despite her "requests for assistance from the management team over the course of eighteen months," Stensland never was offered any coaching or mentoring. Dkt. #20, ¶ 21. She was terminated on May 21, 2010. According to Stensland, her termination was "based on alleged performance related issues." Id., ¶ 33.

Stensland filed the instant case on April 21, 2011, asserting claims under 42 U.S.C. § 1983 and ORS § 659A.030, for sexual harassment, hostile work environment, wrongful discharge, retaliation, breach of contract, and violation of her constitu tional rights. Stensland claims the defendants' actions caused her to suffer "pain, fear, grief, anxiety, worry, and embarrassment," id., ¶ 42, and she seeks economic, noneconomic, and punitive damages, id., p. 18. She has alleged ten causes of action:

First Claim for Relief: Fourteenth Amendment Violation; 42 USC § 1983 (Against Stone, and Bowers, and City of Wilsonville) [gender-based discrimination, sexual harassment, hostile work environment, and retaliatory discharge]

Second Claim for Relief: Fourteenth Amendment Violation; 42 USC § 1983 (Against City of Wilsonville) [equal protection violation as a result of City's alleged endorsement and approval of Stone's, Bowers's, and Fisher's actions] Third Claim for Relief: Constitutional Rights Violations by City of Wilsonville Due to Failure to Adequately Train and Supervise

Fourth Claim for Relief: Negligent Retention and Supervision (Against City of Wilsonville)

Fifth Claim for Relief: Sexual Harassment (Against City of Wilsonville). Count One: Discrimination. Count Two: Hostile Work Environment. Count Three: Retaliation.

Sixth Claim for Relief: Wrongful Discharge (Against City of Wilsonville)

Seventh Claim for Relief: Breach of Employment Contract (Against City of Wilsonville) Eighth Claim for Relief: Breach of Implied Contract (Against City of Wilsonville)

Ninth Claim for Relief: Breach of Oral Contract (Against City of Wilsonville)

Tenth Claim for Relief: Breach of Duty of Good Faith and Fair Dealing (Against City of Wilson-ville)

Dkt. #1.

On October 30, 2009, Stensland filed a petition for relief under Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 701 et seq. See Dkt. #12, Decl. of Brian K. Weeks, Ex. 1 (copy of...