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Barrier v. City of Dalles

United States District Court, D. Oregon, Portland Division

July 4, 2019

BILL BARRIER, an individual, Plaintiff,
CITY OF THE DALLES, a municipality, DAVID ANDERSON, an individual, JULIE KRUEGER, an individual, and DANIEL HUNTER, an individual Defendants.



         Findings and Recommendation

         Plaintiff Bill Barrier ("Barrier") brings this lawsuit against the City of Dalles ("the City"), David Anderson ("Anderson"), Julie Krueger ("Krueger"), and Daniel Hunter ("Hunter") (collectively, "Defendants"), Barrier alleges seven claims against Defendants; injured worker discrimination and retaliation under Oregon Revised Statute ("ORS") § 659A.040; disability discrimination under ORS 659A.112 and the Americans with Disabilities Act ("ADA") 42 U, SC § 12112 (2008); and whistleblower discrimination under ORS 659A.199, 659A.203');">659A.203, 654.062. Barrier asserts an additional claim against Anderson, Krueger, and Hunter individually under 42 U.S, C § 1983 for alleged violations of Ms procedural due process rights secured by the Fifth and Fourteenth Amendments to the Constitution.

         Defendants move to dismiss all claims asserted by Barrier for failure to state a claim under Federal Rule of Civil Procedure ("Rule") 12(b)(6). For the reasons stated below, the court should GRANT Defendants' Motion to Dismiss ("Motion") with respect to Barrier's first, second, third, fourth, fifth, and seventh claims for relief. Barrier's fourth and seventh claims should be dismissed with prejudice, and Barrier's first, second, third and fifth claims should be dismissed without prejudice, and with leave to amend. The court should DENY Defendants' Motion with respect to Barrier's sixth claim.


         The City employed Barrier as a manager in its Public Works department for 24 years. (First Am, Compl., ECF No. 3 ("FAC"), ¶ 13.) In November 2013 Barrier slipped on a rug, fell and hit his head on the concrete floor. (FAC ¶ 16.) The accident caused Barrier's left thumb to bend back to his arm and the lumbar disks in his back to compress. (FAC ¶ 16.)

         In April 2014, the Safe Accident Insurance Fund Company ("SAIF") gave a presentation at Barrier's workplace. (FAC ¶ 17.) One of the presenters was Barrier's SAIF claim representative. (FAC ¶I7.) In the presentation, SAIF addressed the number of city-wide accidents occurring in the workplace. (FAC ¶ 17.) SAIF used the example of someone falling and hurting them self during the presentation. (FAC ¶ 17.) The example, as well as the presence of his SAIF claim representative, caused Barrier to feel "targeted and uneasy about the presentation since [they] appeared to be referencing his accident." (FAC ¶. 17.) Later that year, Barrier had lower lumbar surgery and had a spinal stimulator installed to address injuries from his 2013 fall. (FAC ¶ 18-19.)

         On June 9, 2014, Barrier attended a city council meeting in which trie City's mayor publicly commented on the number of injuries occurring in the Public Works Department. (FAC ¶ 22.) Barrier felt these comments were referencing his injuries. (FAC ¶ 22.)

         In 2015, Barrier damaged his upper back while pulling on an asphalt distributer valve handle, (FAC ¶ 23.) In September of the same year, an editorial appeared in the Dalles Chronical quoting an email from the City's mayor in which the mayor stated he was going to "[g]et rid of [the] city manager and hire a replacement who can go through departments [to] get rid of dead wood." (FAC ¶ 24.) The email also noted that two department heads were on his "hit list." (FAC ¶ 24.) Barrier felt he was one of the department heads referenced by the mayor. (FAC ¶ 25.)

         On another occasion in 2015, Anderson, the Director of Public Works, embarrassed Barrier as they walked through the Public Works yard by openly joking to employees, ¶b]etter watch out or [Barrier] will hit you with his [walking] stick." (FAC ¶ 26.)

         On February 9, 2017, while sanding ice for a school bus route, Barrier slipped and fell on a patch of ice. (FAC ¶ 29.) The same day, Anderson called Barrier into his office to instruct him to stop talking about bald tires on the radio, and to inform Barrier that one of his crewmen had parked in a spot longer than permitted, (FAC ¶ 30.) No other topics were discussed during the meeting. (FAC ¶ 30.)

         The next day, Barrier submitted a city accident form because his shoulder was still sore from his fall the day before. (FAC ¶ 31.) On February 13, 2017, Barrier's shoulder continued to pop and lock in and out of position, prompting Barrier to see a doctor. (FAC ¶ 32.) "Barrier filled out a workers compensation claim (form 801) with the City's insurer and went to Cascade Orthopedics." (FAC ¶ 32.)

         On February 14, 2017 Barrier was overseeing work of some mechanics in the shop when he slipped on a rug. (FAC ¶ 33.) Because Barrier almost fell, he thought the placement of the rug on a "slick concrete floor" was dangerous. (FAC ¶ 33.) Accordingly, Barrier reported the incident by turning in a "near miss slip" to the safety committee. (FAC ¶ 33.)

         On March 31, 2017, Anderson sent Barrier a letter containing "allegations of safety concerns and complaints received during the winter operations." (FAC ¶ 34.) The allegations were raised for the first time in the letter and were not mentioned during Barrier's previous meeting with Anderson on February 9, 2017. (FAC ¶ 34.) On April-27, 2017, Barrier met with Anderson and Hunter, the Director of Human Resources for the City, regarding the allegations and complaints detailed in the letter. (FAC ¶ 35.)

         On May 22, 2017, Anderson gave Barrier a final termination letter. (FAC ¶ 36.) The termination letter contained allegations of misconduct dating back prior to 2014, which Barrier claims are false, (FAC ¶ 36.) Specifically, "[t]he termination letter raised numerous issues that were not contained in prior correspondence or referenced in prior meetings." (FAC ¶ 36.)

         On June 21, 2018, Barrier filed this lawsuit alleging the City unlawfully terminated his employment in violation of the ADA, his due process rights under the Fifth and Fourteenth Amendments, and various Oregon statutes. Defendants moved to dismiss Barrier's Complaint for failure to state a claim under Rule 12(b)(6) on August 9, 2018.

         Legal Standard

         A well-pleaded complaint must have a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R, Civ. 8(a)(2). A motion pursuant to Rule 12(b)(6) should be granted if the allegations in the complaint are insufficient to state a claim for relief. Fed.R.Civ.P. 12(b)(6). The Supreme Court explained the necessity of including sufficient facts in the pleading to give proper notice of the claim and its basis; "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and formulaic recitation of the elements of a cause of action will not do," Bell Atlantic Corp, v, Twombly, 550 U.S. 544, 555 (2007) (internal citation omitted). With this in mind, the Court noted "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely.'" Id., at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

         Later, in Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009), the Court illuminated two principles underlying its decision in Twombly. First, the proposition that a court must accept all allegations in a complaint does not force a court to accept as true all legal conclusions set forth in a pleading. Id. at 678. Second, the complaint must contain a plausible, not merely possible, claim for relief. Id. at 679. The court clarified that "[determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id., Further, the court concluded, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to entitlement to relief," Id.

         On a motion to dismiss for failure to state a claim, the court must take as true all allegations of material fact and construe them in the light more favorable to the non-moving party. Am. Family Ass'n., Inc. v. City & Cty. of S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). The court's review is limited to the face of the complaint, any documents referenced in the complaint, and . those matters which the court may properly take judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007), Otherwise, as a general rule, a district court may not consider any material outside the pleadings when ruling on a 12(b)(6) motion to dismiss. Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001).


         I. First Claim for Relief- Injured Worker Discrimination and Retaliation

         Barrier's first claim for relief alleges he was terminated in retaliation for filing a workers' compensation claim after he fell on an icy road while sanding ice on a school bus route. Barrier claims his termination approximately three months after filling out a workers' compensation form constitutes an adverse employment action in violation of ORS 659A.040.

         ORS 659A.040 provides, in relevant part:

It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS ...

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