1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MEDFORD DIVISION

SUSAN BLAKE,

Plaintiff,

v. 

Case No. 1:14-cv-1559-MC

CURRY HEALTH DISTRICT; OPINION AND ORDER

ANDREW BAIR in his individual 

capacity; LORA MAXWELL, in 

her individual capacity; PAMELA 

BROWN, in her individual capacity;

TERRI TOMBERLIN, in her individual 

capacity,

Defendants.

_____________________________

MCSHANE, Judge:

Plaintiff Susan Blake (“Blake”) brings this action against her former employer, 

Defendant Curry Health District (“CHD”), and its officers. Blake’s First Amended Complaint 

brings claims for due process violations under 42 U.S.C. § 1983; age discrimination under 29 

U.S.C. §§ 621 et seq. and ORS 659A.030; disability discrimination under 42 U.S.C. §§ 12181 et 

seq. and ORS 659A.112 et seq.; whistleblowing under ORS 659A.199 et seq. and ORS 

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2 – OPINION AND ORDER

659A.203 et seq.; retaliation under ORS 441.174; as well as common law claims for defamation, 

wrongful discharge, and intentional infliction of emotional distress. See ECF No. 11. CHD filed 

a Motion for Partial Dismissal of Blake’s First Amended Complaint for failure to provide timely 

notice of Blake’s common law claims for intentional infliction of emotional distress and 

defamation pursuant to the Oregon Tort Claims Act (“OTCA”), ORS 30.275, and for failure to 

state a claim under Fed. R. Civ. P. 12(b)(6). See ECF No. 14. 

Blake’s claim for intentional infliction of emotional distress against CHD is dismissed 

with prejudice for failure to provide CHD with timely notice of the claim as required by the 

OTCA. Blake has not pleaded sufficient facts to support her claim for defamation against CHD. 

Accordingly, Blake’s claim for defamation is dismissed with leave to amend. Defendants’ 

motion, ECF No. 14, is GRANTED in part and DENIED in part.

BACKGROUND1

Plaintiff Susan Blake is a registered nurse with 38 years of experience. In August 2012, 

Blake was hired by Defendant CHD to serve as a nurse at Curry General Hospital in Gold Beach, 

Oregon. During her tenure with CHD, Blake alleges that she and many of her fellow nurses 

were subjected to “harassment, unnecessary discriminatory actions and a general hostile work 

environment.” 

On September 26, 2013, Blake was formally disciplined by CHD for allegedly verbally 

mistreating a patient and the patient’s husband; physically mistreating a student nurse; and 

engaging in “unacceptable behavior with a trauma patient’s family.” On September 30, 2013, 

Blake submitted a written response to CHD, contesting the September 26, 2013 discipline. 

 1 The Court takes all relevant facts in this opinion from the First Amended Complaint, ECF No. 11, unless otherwise 

noted. 

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Blake received no reply from CHD. On October 16, 2013, Blake was terminated for “alleged 

additional misconduct.” 

Blake experienced difficulty in securing new employment following her termination. On 

June 9, 2014, Blake was hired by the Humboldt Open Door Community Health Center in Arcata, 

California. Blake’s new position offers her less pay and inferior benefits compared to her 

previous position with CHD. 

On November 13, 2013, Blake submitted a tort claim notice to CHD (“the November 

letter”). Tomberlin Decl. Ex. 1. The November letter indicated that Blake intended to pursue 

claims for due process violations, wrongful discharge, whistleblowing, and discrimination based 

on age and disability. Id. 

On December 13, 2013, Blake sent a second letter to Defendants (“the December letter”). 

Collins Decl. Ex. 1. The December letter reiterates and expands upon the allegations contained 

in the November letter, adding:

Since her dismissal, Ms. Blake has heard various rumors about why she was fired. 

By way of example, one individual told Ms. Blake that there was a rumor she was 

fired for stealing medications. It appears that this rumor mill has had a 

devastating effect in the relatively small health community.

Collins Decl. Ex. 1, at 1. 

Blake commenced this action on October 1, 2014. See ECF No. 1. 

STANDARDS

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain 

sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual 

allegations allow the court to infer the defendant’s liability based on the alleged conduct. 

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Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than “the 

mere possibility of misconduct.” Id. at 679. 

While considering a motion to dismiss, the court must accept all allegations of material 

fact as true and construe them in the light most favorable to the non-movant. Burget v. Lokelani 

Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). But the court is “not bound to 

accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555. If 

the complaint is dismissed, leave to amend should be granted unless the court “determines that 

the pleading could not possibly be cured by the allegation of other facts.” Doe v. United States, 

58 F.3d 494, 497 (9th Cir. 1995).

DISCUSSION

I. Oregon Tort Claims Act 

As a public body, CHD is entitled to notice of claims against it under the OTCA, ORS 

30.275. Defendants contend that Blake failed to provide timely notice of her common law 

claims for defamation and intentional infliction of emotional distress as required.

The OTCA provides, in pertinent part: “No action arising from any act or omission of a 

public body or an officer, employee or agent of a public body . . . shall be maintained unless 

notice of claim is given as required by this section.” ORS 30.275(1). This notice must be given 

“within 180 days after the alleged loss or injury.” ORS 30.275(2)(b). The plaintiff bears the 

burden of proving that notice of claim was given as required. ORS 30.275(7). 

The OTCA can be satisfied by formal or actual notice. ORS 30.275(3). Formal notice 

must be in writing and contain:

(a) A statement that claim for damages is or will be asserted against the public 

body or an officer, employee or agent of the public body;

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5 – OPINION AND ORDER

(b) A description of the time, place and circumstances giving rise to the claim, so 

far as known to the claimant; and 

(c) The name of the claimant and the mailing address to which correspondence 

concerning the claim may be sent.

ORS 30.275(4). 

Actual notice is any communication by which the appropriate individual “acquires actual 

knowledge of the time, place and circumstances giving rise to the claim, where the 

communication is such that a reasonable person would conclude that a particular person intends 

to assert a claim against the public body or an officer, employee or agent of the public body.” 

ORS 30.276(6). Actual notice need not, however, convey actual knowledge “of the specific 

nature or theory of the claim.” Flug v. Univ. of Oregon, 335 Or. 540, 553 (2003). 

It is clear from the text and context that, for the purposes of the OTCA notice of 

claim requirement, “actual notice” is a communication that (1) allows the 

recipient to acquire “actual knowledge of the time, place, and circumstances” that 

give rise to the specific claim or claims that the plaintiff ultimately asserts; and (2) 

would lead a reasonable person to conclude that the plaintiff has a general intent 

to assert a claim. 

Id. at 554 (emphasis in the original).

A claimant need not provide the public body with “such detailed information that the 

public body can determine its liability from the face of the notice” without the need for further 

investigation. Hughes v. City of Portland, 255 Or. App. 271, 281-82 (2013). “The sufficiency of 

the [OTCA] notice given must be determined with the object of the statute in mind[.]” Brown v. 

Portland Sch. Dist. No. 1 ̧ 291 Or. 77, 81 (1981). “[T]he purpose of the Tort Claims Act notice 

sections is to give the public body timely notice of the tort claim and to allow its officers an 

opportunity to investigate matters promptly and ascertain all necessary facts.” Id. at 81-82. 

“Because the purposes of the notice are to allow the public body to investigate the allegations 

and settle meritorious claims without litigation, . . . allegations that fail to suggest that a 

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6 – OPINION AND ORDER

particular party might assert a particular claim or that particular harms were suffered do not 

substantially comply with the notice requirement.” T.L. v. Sherwood Charter Sch., No. 3:13-cv01562-HZ, 2014 WL 897123, at *16 (D. Or. Mar. 6, 2014). 

In this case, both the November letter and the December letter listed a number of claims 

Blake intended to assert against Defendants. Neither letter explicitly included potential claims 

for defamation or intentional infliction of emotional distress. The issue is therefore whether 

either the November letter or the December letter provided CHD with actual knowledge of the 

time, place, and circumstances giving rise to her claims for defamation and intentional infliction 

of emotional distress. 

A. Defamation

Defamation requires 1) the making of a defamatory statement; 2) the publication of the 

defamatory material; and 3) a resulting special harm. L&D of Oregon, Inc. v. American States 

Ins. Co., 171 Or. App. 17, 22 (2000). 

As noted, neither letter explicitly addresses a potential defamation claim. The December 

letter does address “rumors” that were circulating about Blake’s termination. Although the 

rumors are discussed specifically in the context of a potential due process claim for violation of 

Blake’s liberty interest, the information was sufficient to convey actual knowledge of the “time, 

place, and circumstances” that might give rise to a defamation claim. I conclude, therefore, that 

CHD received timely actual notice of Blake’s defamation claim on December 13, 2013. 

B. Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress requires that 1) the defendant intended to 

inflict severe emotional distress on the plaintiff; 2) the defendant’s acts were the cause of the 

plaintiff’s severe emotional distress, and 3) the defendant’s acts constituted an extraordinary 

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7 – OPINION AND ORDER

transgression of the bounds of socially tolerable conduct. McGanty v. Staudenraus, 321 Or. 532, 

543 (1995). 

Once again, neither letter explicitly mentions intentional infliction of emotional distress. 

Nor do I find anything in either letter that might provide Defendants with actual notice of the 

time, place, or circumstances of such a claim. Neither letter mentions any severe emotional 

distress suffered by Blake, nor do they provide any indication that CHD committed some act that 

constituted an extraordinary transgression of the bounds of socially tolerable conduct. As in 

T.L., Blake’s letters “fail to suggest that a particular party might assert a particular claim or that 

particular harms were suffered.” T.L., 2014 WL 897123, at *16. Accordingly, I conclude that 

Blake’s tort claim notice was insufficient as to her claim for intentional infliction of emotional 

distress. 2

 Defendants’ motion to dismiss that claim is GRANTED.

II. Federal Rule of Civil Procedure 12(b)(6)

Defendants also move to dismiss Blake’s claims for defamation and intentional infliction 

of emotional distress under Fed. R. Civ. P. 12(b)(6). As I have already dismissed Blake’s claim 

for intentional infliction of emotional distress for failure to provide timely and adequate notice, I 

address only Blake’s claim for defamation.3

As noted, to prevail on a defamation claim, a plaintiff must plead and prove 1) that the 

defendant made a defamatory statement; 2) the “publication” of the defamatory material; and 3) 

a resulting special harm, unless the defamatory statement gives rise to presumptive special harm. 

L& D of Oregon, Inc, 171 Or. App. at 22. A statement is defamatory if it subjects another to 

 2 The First Amended Complaint alleges that something about the manner of Blake’s termination gives rise to the 

claim for intentional infliction of emotional distress. The OTCA notice period therefore began to run on this claim 

on October 16, 2013, and has now elapsed. 3 I note, however, that Blake’s claim for intentional infliction of emotional distress shares many of the deficiencies 

of pleading found in the defamation claim.

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8 – OPINION AND ORDER

hatred, contempt, or ridicule; tends to diminish esteem, respect, goodwill, or confidence in which 

the other is held; or excites adverse derogatory or unpleasant feelings or opinions against the 

other. Reesman v. Highfill, 327 Or. 597, 603 (1998); Schliske v. Albany Police Dep’t, 617 F. 

Supp. 2d 1106, 1114 (D. Or. 2009). “To be actionable, a communication must be both false and 

defamatory.” Reesman, 327 Or. at 603.

Rule 8 requires that a pleading contain “a short and plain statement of the claim showing 

that the pleader is entitled to relief.” Fed. R. Civ. P 8(a)(2). In pleading her claim, a plaintiff 

need not make detailed factual allegations, but must include “sufficient factual matter, accepted 

as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 663 (quoting 

Twombly, 550 U.S. at 570). “[T]he tenet that a court must accept a complaint’s allegations as 

true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere 

conclusory statements.” Id. 

A court considering a motion to dismiss may begin by identifying allegations that, 

because they are mere conclusions, are not entitled to the assumption of truth. 

While legal conclusions can provide the complaint’s framework, 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 an entitlement to relief. 

Id. at 664. 

In this case, Blake alleges that “CHD made defamatory statements in bad faith and with 

malicious purpose about Ms. Blake to prospective employers after Ms. Blake’s termination on 

October 16, 2013,” and that, as a consequence, Blake had difficulty securing new employment. 

ECF No. 11. The First Amended Complaint is otherwise bare of factual allegations regarding 

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9 – OPINION AND ORDER

the alleged defamation.4 This is precisely the sort of “threadbare [recital] of a cause of action’s 

elements” prohibited by Iqbal. Defendants’ motion to dismiss Blake’s claim for defamation is 

therefore GRANTED and this claim is DISMISSED. Blake shall have thirty (30) days from the 

date of this order to file an amended complaint containing sufficient factual allegations to meet 

the federal pleading standards. 

CONCLUSION

For the above reasons, Defendants’ motion to dismiss, ECF No. 14, is GRANTED in part

and DENIED in part. Blake’s claim for intentional infliction of emotional distress against CHD 

is dismissed with prejudice. Blake’s claim for defamation against CHD is dismissed with leave 

to amend. Blake shall have thirty (30) days from the date of this order to file an amended 

complaint. 

IT IS SO ORDERED.

DATED this 4

th day of June, 2015.

_______/s/ Michael J. McShane ________

Michael McShane

United States District Judge

 4 The rumors that Blake was terminated for allegedly stealing medication, contained in the December letter and 

discussed above in the context of Blake’s OTCA notice, do not appear in the First Amended Complaint. 

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