United States District Court, D. Oregon
Beth Ann Creighton and Michael E. Rose, CREIGHTON & ROSE, P.C., Of Attorneys for Plaintiff.
Ellen F. Rosenblum, Attorney General, Andrew D. Campbell and Tracy J. White, Senior Assistant Attorneys General, OREGON DEPARTMENT OF JUSTICE, Of Attorneys for Defendants.
OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART FINDINGS AND RECOMMENDATION
MICHAEL H. SIMON, District Judge.
United States Magistrate Judge Dennis J. Hubel issued Findings and Recommendation in this case on April 22, 2014. Dkt. 63. Judge Hubel recommended that the Motion for Summary Judgment (Dkt. 44) filed by Defendants State of Oregon and Koren Brooks (collectively "Defendants") be granted in part and denied in part. Specifically, Judge Hubel recommended granting Defendants' motion regarding the intentional infliction of emotional distress ("IIED") claim against Defendant Koren Brooks and the claim under 42 U.S.C. § 1983 filed by Plaintiff Susan Davis ("Plaintiff" or "Davis"). Judge Hubel recommended denying Defendants' motion regarding Davis's IIED claim against Defendant State of Oregon and Davis's claim under the Family Medical Leave Act ("FMLA"). For the reasons that follow, the Court adopts in part and rejects in part the Findings and Recommendation.
Under the Federal Magistrates Act ("Act"), the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). If a party files objections to a magistrate's findings and recommendation, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; Fed.R.Civ.P. 72(b)(3).
For those portions of a magistrate's findings and recommendation to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) ("There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report[.]"); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (the court must review de novo magistrate's findings and recommendations if objection is made, "but not otherwise"). Although in the absence of objections no review is required, the Act "does not preclude further review by the district judge sua sponte ... under a de novo or any other standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that "[w]hen no timely objection is filed, " the Court review the magistrate's recommendation for "clear error on the face of the record."
Plaintiff and Defendants timely filed objections to Judge Hubel's Findings and Recommendation (Dkts. 77, 76), to which each side responded (Dkts. 78, 79). Plaintiff objects to Judge Hubel's recommendation that the Court grant Defendants' motion for summary judgment on Plaintiff's claim under 42 U.S.C. § 1983. Defendants object to Judge Hubel's recommendation that the Court deny Defendants' motion for summary judgment on Plaintiff's claims against Defendant State of Oregon alleging IIED and violation of the FMLA. The Court has reviewed de novo Judge Hubel's Findings and Recommendation, as well as the briefing submitted by the parties. The Court adopts Judge Hubel's recommendation regarding Plaintiff's claims against Defendant State of Oregon alleging IIED and violation of the FMLA. The Court rejects in part Judge Hubel's recommendation regarding Plaintiff's claim alleging violation of her substantive due process rights brought pursuant to 42 U.S.C. § 1983.
The facts of this case are set out in Judge Hubel's Findings and Recommendation. See Dkt. 63 at 2-14. Briefly, this case involves claims brought by Davis against Defendants State of Oregon and Brooks alleging IIED, violation of the FMLA, and violation of Davis's substantive due process rights under the Fourteenth Amendment. Defendant State of Oregon hired Davis in 2007 as a Habilitative Therapy Technician ("HTT") to assist medically fragile individuals with their activities of daily living. Augsburger Decl., Dkt. 46 at 1. In approximately 2009, the facility where Davis worked (the Madison House) transitioned to serving persons that "suffer from mental health conditions that cause them to act out in violent and aggressive behaviors such that they are considered to be a danger to themselves and others on a daily basis." Id. at 1-2. "Caregivers working in the new Madison House had to be classified as Mental Health Therapy Technicians ("MHTT")." Id. at 2. Davis's employer gave Davis the option of moving to another home that served medically fragile individuals and retaining her HTT position or staying at the Madison House and training for and accepting a promotion to be a MHTT. Id.
Davis accepted the promotion to MHTT on February 6, 2010, although Madison House's new clientele arrived as early as December 2009. See Lippold Decl. Davis Dep., Dkt. 48 at 11, 91:14-24; Creighton Decl. Ex. 17, Dkt. 49-17 at 2; Second Augsburger Decl. Ex. A, Dkt. 56 at 1-20. Davis worked with the new clientele for at least a month before her reclassification. Second Augsburger Decl. Ex. A, Dkt. 56 at 1-20; Creighton Decl. Ex. 17, Dkt. 49-17 at 2. Davis was assigned to work with an individual, S.B., who Davis alleges targeted her and eventually brutally attacked her on July 19, 2010. Davis Decl., Dkt. 51 at 1-4.
After the attack on July 19, 2010, Davis went to an emergency room for treatment of contusions and an apparent broken nose. Dkt. 63 at 10. Defendant State of Oregon approved Davis for FMLA leave beginning July 19, 2010, and Davis requested that she never again be assigned to work with S.B. in the future. Id. at 11. Davis returned from her first period of FMLA leave on September 6, 2010. Id. As Davis's supervisor, Brooks "was directed to not assign her to work with S.B. while she settled back into her position." Id. Approximately a week after returning from FMLA leave, Davis suffered a major anxiety attack and left work. Id. Davis took a second period of FMLA leave through October 11, 2010. Id.; Creighton Decl. Ex. 21, Dkt. 49-21 at 1. Davis contends that when she returned to work on October 16, 2010 she was to work at "the opposite side of the house from S.B." and "understood [Davis] would not be reassigned to work in close proximity to S.B." Davis Decl., Dkt. 51, ¶ 16. Davis also contends that "[f]our days later, without advance warning, [she] was told 10 minutes before [her] shift began that [she] was to work with S.B." Id. ¶ 17.
Brooks informed Davis that she would be required to follow staffing assignments at the Madison House, including assignments to work with S.B. Id. ¶ 20. Davis requested a transfer because she feared working with S.B. Id. ¶ 21. The State provided Davis with three options in response to the transfer request: (1) remain at the Madison House and work with S.B. periodically; (2) retain her MHTT status by working at a facility that served the same type of clientele as were in the Madison House; or (3) be demoted without a decrease in pay and work as an HTT at another facility named the Hawthorne House located next to the Madison House. Dkt. ...