John MILLER, Randy Olson, Herbert Goss, Douglas Babcock, Henry Jackson, and Michael Palin, Petitioners on Review,
CITY OF PORTLAND, an Oregon municipal corporation, Respondent on Review
Argued and Submitted January 16, 2014
On review from the Court of Appeals, CC 081014715; CA
Miller v. City of Portland, 255 Or.App. 771, 298 P.3d 640, (2013)
Montgomery W. Cobb, Montgomery W. Cobb, LLC, Portland, argued the cause and filed the brief for petitioners on review.
Franco A. Lucchin, Deputy City Attorney, Portland, argued the cause and filed the brief for respondent on review. James S. Coon, Swanson Thomas Coon & Newton, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.
BREWER, J. Balmer, C.J, dissented and filed an opinion, in which Landau, J., joined.
[356 Or. 404] BREWER, J.
Plaintiffs had been firefighters for the city of Portland when they suffered disabling injuries. The charter for the city requires it to provide disability benefits to its police and fire employees who suffer injuries in the course of their employment that render them " unable to perform [their] required duties," with a minimum disability benefit of 25 percent of the employee's base pay, " regardless of the amount of wages earned in other employment." The city originally determined that plaintiffs' disabilities made them unable to perform their " required duties" and paid them disability benefits. Years later, however, the city created new job assignments
that included some of the duties within the job classifications that plaintiffs had held when they were injured. Because the city gave the new job assignments the same job classifications that plaintiffs had previously held, the city maintained that plaintiffs were no longer disabled. The city therefore required plaintiffs to return to work and discontinued paying them even the minimum disability benefit.
Plaintiffs brought a civil action against the city for breach of contract, and the circuit court granted summary judgment for the city. The Court of Appeals affirmed in part and reversed in part. Miller v. City of Portland, 255 Or.App. 771, 298 P.3d 640 (2013). On review, we conclude that the city charter's use of the term " required duties" means core duties--those duties that are necessary or essential to the job. Because there is a genuine issue of material fact as to whether the duties of plaintiffs' new job assignments were the " required duties" for the job classifications that plaintiffs previously held, we further conclude that the circuit court erred in granting summary judgment in favor of the city. Accordingly, we affirm in part and reverse in part the decision of the Court of Appeals, and we reverse the judgment of the circuit court and remand to that court for further proceedings.
As noted, the circuit court granted summary judgment for the city. Because plaintiffs were the nonmoving parties, we set out the facts (and the inferences from those [356 Or. 405] facts) in the light most favorable to them. See ORCP 47 C (on summary judgment, circuit court must determine whether there is no genuine issue of material fact " based upon the record before the court viewed in a manner most favorable to the adverse party" ); Loosli v. City of Salem, 345 Or. 303, 306 n 1, 193 P.3d 623 (2008).
Plaintiffs were all hired by the city to work for Portland Fire and Rescue under the job classification " Fire Fighter."  They were first hired between 1980 and 1990. At all relevant times, Chapter 5 of the city charter provided for a Fire and Police Disability and Retirement Fund (the disability fund). Briefly, the disability fund provides benefits for (among other things) member employees who are injured on the job. The test for benefits is whether the member employee is " unable to perform the Member's required duties." Portland City Charter § 5-306(b). Disability benefits include payments based on the member employee's base pay at the time of the injury, decreased by the member employee's earnings through " other employment." See id. § 5-306(e). " [R]egardless of the amount of wages earned in other employment," however, while disabled, the employee would receive a minimum payment of 25 percent of base pay. Id. § 5-306(e) 4.
Plaintiffs suffered disabling injuries while in the course of their employment. The city does not dispute that it (1) determined that plaintiffs were " unable to perform [their] required duties" ; (2) gave them medical layoffs; and (3) paid them disability benefits for several years. The city also does not assert that plaintiffs' medical conditions have improved in a way that would permit them to perform the " required [356 Or. 406] duties" initially used to determine that plaintiffs were disabled. Nor does the city assert that the duties included in the job classifications that plaintiffs had held when they became disabled have changed since plaintiffs became disabled.
The summary judgment record does not show precisely what the city considered plaintiffs' " required duties" to have been
when they became disabled. The record does, however, include more general evidence of the duties of a " Fire Fighter." The description contained in the city's official " Fire Fighter Classification" document provides:
" This is general duty fire fighting work. Employees occupying positions of this class are responsible for the protection of life and property through the suppression and prevention of fires and in the response to emergency calls. Major elements of the work include participating in supervised drills, training in fire fighting skills and rescue techniques, and participation in hydrant and building inspection activities."
A Fire Fighter must be able to perform firefighting tasks in any number of different situations:
" All employees of this class perform almost all fire fighting tasks associated with an engine, truck, rescue squad, or fire boat company, since personnel are rotated for administrative and personal reasons."
The classification document goes on to list examples of work that a Fire Fighter may be required to perform in different contexts. For example, the duties of a Fire Fighter with an engine company include laying and connecting hose to a hydrant and holding nozzles to direct fog or water streams. The duties of a Fire Fighter with a truck company include raising ladders and rescuing building occupants. The duties of a Fire Fighter with a fire boat company include functioning as a deckhand and operating the boat engine and pumps.
After plaintiffs were determined to be disabled and placed in medical layoff status, they turned to different pursuits. Some obtained other employment or became involved in business ventures, while one began to take care of his child full time. One moved to eastern Oregon, and a second sold his home and moved to Mexico.
[356 Or. 407] Beginning in 2006, the city instituted a " Return to Work" policy and program. The city's " Return to Work" policy provided that the city would identify " restricted duty" assignments that would be
" suitable for a member whose restrictions are of a permanent nature and prevent the member from performing front-line fire fighting or police work."
Under that program, the city created new job assignments, such as " low hazard fire inspector," with duties that plaintiffs could perform within the limitations imposed by their disabilities.
There is no indication in the record that the city rewrote its job classifications under the Return to Work program. Instead, the city selected duties from within existing job classifications, designated the resulting aggregations of duties as " restricted duty" assignments, and gave those assignments the same job classifications that plaintiffs had held when they became disabled. Although the restricted duty assignments were composed of subsets of the duties in plaintiffs' respective job classifications at the time that they became disabled, those assignments excluded many of the " [m]ajor elements of the work" described in the quoted Fire Fighter classification document. The city then determined that plaintiffs no longer qualified for disability benefits because plaintiffs could perform the " required duties" of the new restricted duty assignments. Accordingly, the city ceased making disability payments to plaintiffs without regard to whether they accepted the new jobs.
Five plaintiffs accepted the jobs. Although the city ceased paying them disability benefits, the director of the disability fund never provided those plaintiffs with any formal notice that their benefits had been discontinued. The sixth plaintiff, Olson, did not accept the proffered job. He was the only plaintiff who received formal notice of the termination of his benefits.
[356 Or. 408] The interim director of the disability fund sent a letter to Olson dated April 12, 2007, stating that, in March 2007, Olson had been medically approved to perform the job
duties of a low hazard fire inspector and that he had been directed to report for duty on April 5, 2007. The letter then stated that Olson's disability benefits had been terminated effective April 5, 2007, because he was no longer disabled or eligible for benefits. The letter continued:
" You have 14 days from the date of this letter to provide a written response for the Director's consideration.
" If the Director does not hear from you within the 14-day time frame, this denial is affirmed and you then have 60 days from April 26, 2007 to appeal to a hearings officer. * * *"
On April 26, 2007--within the 14-day period--Olson's attorney sent a letter to the director asking her to reconsider the termination of his benefits. Neither the director nor the city took any action in response to Olson's request.
As noted, plaintiffs commenced a civil action against the city for breach of contract. In their complaint, plaintiffs alleged that the city was obligated by contract to pay them disability benefits, either pursuant to the terms of the charter or based on written and oral representations of city employees, and that the city had breached that contract. Plaintiffs sought damages and injunctive relief for the asserted breach.
The city moved for summary judgment, offering a number of different arguments. One was procedural: The city contended that plaintiffs were not entitled to proceed with the action because they had failed to exhaust their administrative appeal rights. The city also sought summary judgment on the merits. The city contended that the provisions of the city charter did not form a contract for disability benefits with plaintiffs, and that, pursuant to the charter, any written and oral representations by city employees could not form a contract in the absence of a city ordinance. Furthermore, if there was a contract, the city asserted, it had not breached that contract, because the city had offered [356 Or. 409] plaintiffs jobs with the same job classifications that they had held when they were injured. According to the city, it was irrelevant that those jobs had duties that constituted only a subset of the duties included in the job classifications that plaintiffs had held when they became disabled, because " required duties" under the charter meant whatever duties within those job classifications that the city chose to require.
The circuit court granted summary judgment for the city. The court primarily held that plaintiffs had failed to exhaust their administrative remedies. In addition, however, the court made alternative rulings regarding the city's other arguments. The court concluded that there was evidence of a contract, and so it denied that aspect of the city's summary judgment motion. It agreed with the city, however, that the city had not breached the terms of that contract, and so it was also entitled to summary judgment on that basis. Finally, the court held that there was a genuine issue of ...