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Dodson v. City of Ashland

United States District Court, D. Oregon, Medford Division

March 4, 2019

CHRISTINE DODSON, Plaintiff,
v.
CITY OF ASHLAND; MICHAEL BLACK; MICHAEL GARDINER, Defendants.

          OPINION & ORDER

          MICHAEL MCSHANE, UNITED STATES DISTRICT JUDGE.

         Defendant City of Ashland moves for partial summary judgment dismissing Dodson's third claim for wage claim retaliation on the basis that Dodson failed to comply with the notice provisions of the Oregon Tort Claims Act (“OTCA”). This matter is appropriate for resolution without oral argument. Because Dodson failed to give timely notice of her claim, the Motion is GRANTED.

         BACKGROUND

         Plaintiff Christine Dodson was an employee of Defendant City of Ashland from 2003 until her termination on October 2, 2017. From 2007 until the date of her termination, Dodson worked as the Senior Program Director for the Ashland Senior Program. Compl. 11. ECF No. 1. The Ashland Senior Program is administered by the City, acting through the Ashland Parks and Recreation Commission (“APRC”). Compl. ¶¶ 1, 6.

         In June 2015, the City informed Dodson that it had misclassified her as a salaried employee for eight years when she should have been classified as an hourly employee. Compl. 21. As a result, Dodson was owed substantial back pay for hours worked beyond 40 hours per week. Id. The City offered Dodson a week of additional vacation time in lieu of back pay, which Dodson refused. Dodson Decl., ECF No. 15; Compl. 22-23. Dodson retained an attorney to pursue her wage claim against the City. Compl. 23.

         During the pendency of the wage dispute, Dodson experienced a change in her relationship with her immediate supervisor, Rachel Dials, and with Defendant APRC Director Michael Black. Compl. 25. Although Dodson had previously received glowing performance reviews, Dodson Decl. Ex. 1, ECF No. 15, she found herself subject to criticism and reprimands from Dials and Black about previously uncontroversial aspects of her work. Compl. ¶¶ 25-32. As Dodson sets forth in her Declaration, “After I started to insist on being paid what I was owed, and refusing to work without being paid, I began to experience retaliation in the form of increased scrutiny, unjustified discipline, and frustration from my managers.” Dodson Decl. After receiving a verbal reprimand in September 2015, Dodson submitted a written response in which she directly accused her supervisors of retaliating against her for the wage claim. Dodson Decl. Ex. 2.

         On June 3, 2016, after several months of negotiation, Dodson reached a settlement agreement with the City which included substantial back pay and attorney fees. Dodson Decl.; Compl. ¶¶ 24, 32; Lohman Decl. Ex. 3. ECF No. 12. Because of her deteriorating relationships with Dials and Black, Dodson insisted on the inclusion of job-related protections in the settlement agreement. Compl. 33; Lohman Decl. Ex. 3, at 1.

         Beginning on October 24, 2016, the APRC approved the establishment of a Senior Center Advisory Committee tasked with the “evaluation of the Senior Program and establish[ing] best practices, set[ting] goals and recommend[ing] the implementation of any changes to the program.” Compl. 34. As the Complaint alleges in considerable detail, this reorganization process continued through August 9, 2017, and was generally hostile to Dodson. The process eventually culminated in Dodson's termination, which the City characterizes as a “layoff.” Compl. ¶¶ 109, 112. Dodson alleges this was not a layoff, but a “targeted firing, ” aimed at retaliating against Dodson for her opposition to the restructuring of the Senior Program, as well as for her earlier wage claim. Compl. ¶¶ 124, 134-39, 144-50. Dodson was informed of her pending termination on August 23, 2017, and her termination was effective October 2, 2017. Lohman Decl.

         On January 5, 2018, Dodson's attorney sent a formal Notice of Tort Claim to the City pursuant to ORS 30.275. Lohman Decl. Ex. 1. In her notice letter, Dodson asserted that her termination was in retaliation for her having “spoke[n] out on behalf of Ashland's most needy senior citizens, ” during the reorganization of Senior Program. Id. at 2-3. Dodson accused the City of using the reorganization “layoff” as pretext for evading the job-protection provisions of the 2016 settlement agreement between Dodson and the City. Id. at 3-4. The letter further accused the City of retaliating against Dodson for exercising her “right to speak freely about a matter of public concern, ” in addition to contractual violations. Id. at 4.

         APRC's handling of Dodson and the Senior Program proved controversial and resulted in recall proceedings against the APRC Commissioners, including Defendant Michael Gardiner. Compl. ¶¶ 122-23. In response to that recall effort, Gardiner made public statements critical of Dodson and suggesting that her termination was the result of performance issues rather than a layoff. Compl. ¶¶ 124-128. In response to those statements, Dodson's attorney sent a second letter to the City on February 14, 2018, demanding that the City cease and desist from making defamatory statements about Dodson. Lohman Decl. Ex. 2. Dodson advised the City to “consider this letter as Ms. Dodson's notice of her additional tort claims against the City of Ashland.” Id. at 2.

         On May 15, 2018, Dodson filed the present action. In her Complaint, she brings claims for (1) retaliation for the exercise of protected conduct under ORS 659A.203 against the City; (2) common law defamation against Gardiner; (3) wage claim retaliation under ORS 652.355 against the City; and (4) violation of her federal Fourteenth Amendment due process rights pursuant to 42 U.S.C. § 1983 against Black.

         LEGAL STANDARD

         Summary judgment is appropriate if the record shows that “there is no genuine dispute as to any materials fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elect Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Caltrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the ...


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