IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PAUL J. BIEKER, JR., 3:16-cv-00215-BR

Plaintiffs, OPINION AND ORDER

v.

CITY OF PORTLAND and 

PORTLAND FIRE & RESCUE,

Defendants.

PAUL J. BIEKER, JR.

P.O. Box 1176

Boring, OR 97009

Plaintiff, Pro Se

TRACY REEVE

Portland City Attorney

DAVID A. LANDRUM

Deputy City Attorney

1221 S.W. Fourth Ave, Rm. 430

Portland, OR 97204

(503) 823-4047

Attorneys for Defendants

BROWN, Judge.

This matter comes before the Court on the Amended Motion

(#5) to Dismiss of Defendants City of Portland and Portland Fire

& Rescue.

For the reasons that follow, the Court GRANTS Defendants’

1 - OPINION AND ORDER

Case 3:16-cv-00215-BR Document 15 Filed 07/14/16 Page 1 of 28
Motion and DISMISSES with prejudice that part of Plaintiff’s

First Claim brought under Oregon Revised Statute § 659A.199;

DISMISSES with leave to amend that part of Plaintiff’s First

Claim brought under Oregon Revised Statute § 659A.203; DISMISSES

with prejudice that part of Plaintiff’s First Claim that is based

on acts that occurred prior to August 25, 2013, and, therefore,

is barred by the statute of limitations; DENIES Plaintiff’

request for jury trial as to Plaintiff’s First Claim; DISMISSES

with leave to amend Plaintiff’s Second Claim; and DISMISSES with

leave to amend Plaintiff’s Third Claim.

BACKGROUND

The following pertinent facts are taken from Plaintiff’s

Complaint and accepted as true for purposes of Defendants’

Motions.

Plaintiff was employed by Defendants as a lieutenant fire

fighter/paramedic. In May 2011 Plaintiff took the civil-service

examination for promotion to captain. Plaintiff did not make the

promotion list.

In 2012 it was discovered that certain individuals in 

Portland Fire & Rescue had provided examinees with information

regarding the test in advance of the examination. Defendants

investigated and published a report of its findings. As a result

of this information, Plaintiff appealed his test results to the

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Civil Service Board. The Board, however, refused to exercise

jurisdiction to hear Plaintiff’s appeal based on timeliness. 

Plaintiff then filed a lawsuit in state court asserting he had

timely filed his appeal based on the date of his discovery of the

cheating. The state court issued an order finding Plaintiff’s

appeal was timely. Plaintiff alleges the City of Portland, in

retaliation against him, thereafter changed the Board rules to

calculate the time allowed for an appeal of civil-service

examination results from the date of the occurrence that forms

the basis of the challenge rather than from the date of

discovery. 

At some later point Defendants transferred Plaintiff to “the

least desirable” work station in Portland Fire & Rescue. When

Plaintiff sought a transfer, he was told he could not be

guaranteed a position at a permanent station and might end up

back in a traveling pool, which would be “[an] even less

desirable appointment.”

In 2013 Plaintiff again took the examination for promotion

to captain. Plaintiff passed the written examination and was

required to take an assessment-center examination. Plaintiff

alleges on June 21, 2013, he was given conflicting dates and

times for the examination, which confused and frustrated him. He

eventually took the assessment-center examination on June 27,

2013. Following the examination Plaintiff was advised his score

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was .23 less than a passing score and that he had missed the cutoff for inclusion on the promotional list “by only one place.” 

Plaintiff again filed an appeal with the Board and subsequently

learned in the summer of 2014 that many of his scores had been

changed without any indication as to who had made the changes. 

In any event, Plaintiff alleges Defendants changed the cut-off

for the passing score of the assessment portion to retaliate

against him “for his whistleblowing and free speech activities

and conduct.”

Plaintiff alleges Defendants retaliated against him for his

“whistleblowing activities and his exercise of his rights to free

speech and free association.” On May 30, 2014, Plaintiff gave

notice to Defendants that he intended to assert tort claims

against them for their retaliatory conduct such as assigning him

to less desirable stations when other officers junior in

seniority and experience were assigned to more desirable station

assignments.

On August 25, 2014, Plaintiff filed a complaint with the

Oregon Bureau of Labor and Industries (BOLI). On August 20,

2015, BOLI issued to Plaintiff a Right to File a Civil Suit. 

Plaintiff filed a complaint in state court on November 17, 2015. 

In his complaint Plaintiff alleged claims for (1) unlawful

employment practices in violation of Oregon Revised Statutes 

§ 659A.199 and § 659A.203, (2) violation of his First Amendment

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right of free speech, and (3) intentional infliction of severe

emotional distress.

Defendants removed the state-court action to this Court on

February 4, 2016.

STANDARDS

To survive a motion to dismiss a complaint must contain

sufficient factual matter, accepted as true, to “state a claim

for relief that is plausible on its face.” Bell Atlantic v.

Twombly, 550 U.S. 544, 545 (2007). A claim has facial

plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. Id. at 556. 

“The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that

a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)(quoting Twombly, 550 U.S. at 546). When a

complaint is based on facts that are “merely consistent with” a

defendant's liability, it “stops short of the line between

possibility and plausibility of entitlement to relief.” Iqbal,

556 U.S. at 678 (citing Twombly, 550 U.S. at 557). See also Bell

Atlantic, 550 U.S. at 555-56. The court must accept as true the

allegations in the complaint and construe them in favor of the

plaintiff. Din v. Kerry, 718 F.3d 856, 859 (9th Cir. 2013).

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The pleading standard under Federal Rule of Civil Procedure

8 “does not require ‘detailed factual allegations,’ but it

demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550

U.S. at 555). See also Federal Rule of Civil Procedure 8(a)(2). 

“A pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’” 

Id. (citing Twombly, 550 U.S. at 555). A complaint also does not

suffice if it tenders “naked assertion[s]” devoid of “further

factual enhancement.” Id. at 557.

“In ruling on a 12(b)(6) motion, a court may generally

consider only allegations contained in the pleadings, exhibits

attached to the complaint, and matters properly subject to

judicial notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th

Cir. 2007)(citing Jacobson v. Schwarzenegger, 357 F. Supp. 2d

1198, 1204 (C.D. Cal. 2004)). A court, however, "may consider a

writing referenced in a complaint but not explicitly incorporated

therein if the complaint relies on the document and its

authenticity is unquestioned." Id. (quoting Parrino v. FHP,

Inc., 146 F.3d 699,706 (9th Cir. 1998), superseded by statute on

other grounds as stated in Abrego v. Dow Chem. Co., 443 F.3d 676

(9th Cir. 2006)).

A pro se plaintiff's complaint "must be held to less

stringent standards than formal pleadings drafted by lawyers." 

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Erickson v. Pardus, 551 U.S. 89, 94 (2007). Thus, the court must

construe pro se filings liberally. If a plaintiff fails to state

a claim, "[l]eave to amend should be granted unless the pleading

'could not possibly be cured by the allegation of other facts,'

and should be granted more liberally to pro se plaintiffs." 

Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)(quoting

Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)).

DISCUSSION

Defendants seek to dismiss each of Plaintiff’s claims

pursuant to Federal Rule of Civil Procedure 12(b)(6) as follows:

1. That part of Plaintiff’s First Claim for violation of

Oregon Revised Statute § 659A.199 on the ground that the statute

does not apply to public employers.

2. That part of Plaintiff’s First Claim for violation of

Oregon Revised Statue § 659A.203 on the ground that Plaintiff

does not allege facts in his Complaint that constitute a

“disclosure” for purposes of “whistleblowing” under the statute.

3. That part of Plaintiff’s First Claim for violation of

Oregon Revised Statute § 659A.203 on the ground that it is barred

by the statute of limitations. 

4. Plaintiff’s request for a jury trial as to Plaintiff’s

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First Claim.1

5. Plaintiff’s Second Claim for violation of First

Amendment protection on the ground that the speech at issue does

not constitute a matter of public concern.

6. Plaintiff’s Third Claim for intentional infliction of

severe emotional distress on the ground that the conduct alleged

does not rise to the level of conduct so outrageous or extreme as

to be beyond the bounds of social decency.

I. General applicability of Oregon Revised Statutes §§ 659A.199

and 659A.203 to Plaintiff’s First Claim for Unlawful

Employment Practices.

In his First Claim Plaintiff seeks damages for retaliation

by Defendants pursuant to Oregon Revised Statutes §§ 659A.199 and

659A.203. 

Defendants contend § 659A.199 does not apply to public

employers, and, therefore, Plaintiff may not bring his claim

under both §§ 659A.199 and 659A.203. Plaintiff, in turn,

contends § 659A.199 does not specifically provide that it applies

only to “private” employers, and, therefore, Plaintiff may pursue

his claims under both §§ 659A.199 and 659A.203.

Section 659A.199(1) provides:

1

 In their Motion Defendants also raise issues regarding

Plaintiff’s right to recover attorneys’ fees and to assert claims

on behalf of Plaintiff’s daughter. The Court finds the issue of

entitlement to attorneys’ fees is premature. In his Response to

Defendants’ Motion, Plaintiff clarifies he is not asserting

claims on behalf of his daughter.

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It is an unlawful employment practice for an employer

to discharge, demote, suspend or in any manner

discriminate or retaliate against an employee with

regard to promotion, compensation or other terms,

conditions or privileges of employment for the reason

that the employee has in good faith reported

information that the employee believes is evidence of a

violation off a state or federal law, rule or

regulation.

In contrast, § 659A.203 is titled “Public employers;

prohibited employment practices” and specifically prohibits “any

public employer” from taking certain actions again an employee.

Although the Oregon state appellate courts have yet to

address specifically the question whether a plaintiff may bring

claims under both provisions against a public employer, courts in

this District have concluded on multiple occasions that “[t]he

Oregon legislature enacted ORS § 659A.199 in 2009 to extend

‘whistleblowing’ protections to private sector employees.” 

Minger v. Hood Comty. Coll. Dist., No. 3:14-cv-01460-SI, 2016 WL

475382 (D. Or. Feb. 4, 2016)(citing Neighorn v. Quest Health

Care, 870 F. Supp. 2d 1069 at 1101 (D. Or. 2012)). See also

Peters v. Betaseed, Inc., No. 6:11–CV–06308–AA, 2012 WL 5503617

(D. Or. Nov. 9, 2012)(distinguishing between Oregon Revised

Statute § 659A.203, “which applies to public employers,” and

Oregon Revised Statute § 659A.199 under which the plaintiff

properly brought a claim against a private employer); Grosz v.

Farmers Ins. Exch., No. 3:10-cv-00563-ST, 2010 WL 5812667 (D. Or.

Nov. 9, 2010), report and recommendation adopted, No. 3:10-cv9 - OPINION AND ORDER

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00563-ST, 2011 WL 587555 (D. Or. Feb. 10, 2011)(noting Oregon

Revised Statute § 659A.199 “impose[s] liability for

whistleblowing discrimination by private employers”); Lindsey v.

Clatskanie People's Util. Dist., No. 3:14-cv-00485-SI, 2015 WL

6443290 (D. Or. Oct. 23, 2015)(“The legislative history

establishes that Oregon Revised Statute § 659A.199 does not apply

to public employers.”).

In Minger the district court concluded the plaintiff could

not bring claims against his public employer under both 

§§ 659A.199 and 659A.203. Relying on the Oregon Court of Appeals

decision in Hall v. Oregon, 274 Or. App. 445 (2015), which

compared the differing standards found in §§ 659A.199, 659A.203,

and 659A.230, the Minger court stated:

As the Oregon Court of Appeals has repeatedly noted,

the Oregon legislature intentionally omitted the good

faith standard found in other whistleblower statutes

from the public employer whistleblower statute. In

contrast, the Oregon legislature included the good

faith standard in ORS § 659A.199, enacted after ORS 

§ 659A.203. The legislature also omitted the word

“public” from ORS § 659A.199. See Hearing on H.R. Bill

3162A before the S. Comm. on Commerce & Workforce

Development, 75th Legis. Assemb. (Or. 2009)(statement

of Rep. Judy Steigler)(stating that the bill codified

as ORS § 659A.199 “bring[s] private employees more in

line with the remedies available to them — would be

available to them as public employees”). The

differences between the two statutes indicate that the

legislature specifically intended different threshold

requirements to apply to whistleblower claims in the

public and private sectors. It would therefore make

little sense to subject a public employer to competing

requirements by allowing a plaintiff to bring claims

under both ORS § 659A.199 and ORS § 659A.203. 

10 - OPINION AND ORDER

Case 3:16-cv-00215-BR Document 15 Filed 07/14/16 Page 10 of 28
2016 WL 475382, at *7.

Here Plaintiff asserts claims against his public employer

under both Oregon Revised Statutes §§ 659A.199 and 659A.203. As

in Minger, however, it would “make little sense to subject a

public employer to the competing requirements” of each statute. 

On this record the Court concludes Oregon Revised Statute 

§ 659A.199 does not apply to Defendants as public employers. The

Court, therefore, dismisses with prejudice that part of

Plaintiff’s First Claim in which Plaintiff seeks recovery against

Defendants under Oregon Revised Statute § 659A.199.

II. Protected “disclosure” of information underlying that part

of Plaintiff’s First Claim brought pursuant to Oregon

Revised Statute § 659A.203.

Defendants argue Plaintiff has failed to allege a

“disclosure” sufficient to support a claim under § 659A.203. 

Section 659A.203 provides:

659A.203. Public employers; prohibited employment

practices 

(1) Subject to ORS 659A.206, except as provided in ORS

659A.200 to 659A.224, it is an unlawful employment

practice for any public employer to: 

(a) Prohibit any employee from discussing, in

response to an official request, either

specifically or generally with any member of the

Legislative Assembly, legislative committee staff

acting under the direction of a member of the

Legislative Assembly, any member of the elected

governing body of a political subdivision in the

state or any elected auditor of a city, county or

metropolitan service district, the activities of: 

(A) The state or any agency of or political

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subdivision in the state; or 

(B) Any person authorized to act on behalf of

the state or any agency of or political

subdivision in the state. 

(b) Prohibit any employee from disclosing, or take

or threaten to take disciplinary action against an

employee for the disclosure of any information

that the employee reasonably believes is evidence

of: 

(A) A violation of any federal or state law,

rule or regulation by the state, agency or

political subdivision; 

(B) Mismanagement, gross waste of funds or

abuse of authority or substantial and

specific danger to public health and safety

resulting from action of the state, agency or

political subdivision; or 

(C) Subject to ORS 659A.212 (2), the fact

that a person receiving services, benefits or

assistance from the state or agency or

subdivision, is subject to a felony or

misdemeanor warrant for arrest issued by this

state, any other state, the federal

government, or any territory, commonwealth or

governmental instrumentality of the United

States. 

Defendants contend Plaintiff’s allegations that he took the

promotional examination, did not score high enough for promotion,

learned of misconduct in the examination process that the City

ultimately investigated and that resulted in the City publishing

findings, and then appealed his score to the Civil Service Board

all fail to satisfy the definition of a protected disclosure

under § 659A.203.

Plaintiff, however, argues his filing of claims with the

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Director of Personnel, the Bureau of Human Resources, and the

Civil Service Board accusing City employees of leaking

examination information, as well as the filing of a claim with

BOLI and a lawsuit in state court, constitute a disclosure

sufficient to warrant protection under the statute. Plaintiff

also argues it was he and other candidates who “discovered and

reported the cheating in 2012,” and he “revealed even more about

the City’s corruption and retaliation during the prosecution of

his claims before the Bureau of Human Resources, the Civil

Service Board, and the Bureau of Labor and Industries.” Resp. 

at 9 (emphasis in original). 

In Bjurstrom v. Oregon Lottery, 202 Or. App. 162 (2005), the

Oregon Court of Appeals held “disclosures” under the

whistleblower protection statute include reports of wrongdoing

made within an agency or a department if they rise to the level

of public concern. Id. at 169, 172. In Bjurstrom the court

found the plaintiff’s oft-repeated concerns to coworkers and

supervisors regarding his employer’s policy on the use of

company-purchased safety shoes, a manager’s alleged harassment of

a coworker, policies regarding breaks by managers, and the

incompetence of the human resources department did not rise to

the level of protected disclosures under § 659A.203. In

addition, the cases suggest “disclosure” only extends to reports

of previously unavailable information. See, e.g., Lindsey v.

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Clatskanie People’s Util. Dist., No. 3:14-cv-00485-SI, 2015 WL

6443290 (D. Or. Oct. 23, 2015)(the district court's

interpretation of protections under § 659A.203).

In Clarke v. Multnomah County the Ninth Circuit affirmed the

district court and noted: “The plain language of the Oregon

statute . . . confirms that merely reporting publicly available

information does not constitute a protected ‘disclosure.’” 

Clarke v. Multnomah Cty., 303 F. App’x 512, 513 (9th Cir. 2008).

Here Plaintiff’s allegations do not on their face reflect

violations of federal or state law, mismanagement, gross waste of

funds, abuse of authority, or substantial and specific danger to

public health and safety. Moreover, Plaintiff does not allege he

disclosed information that was not already publicly known or

available.

Accordingly, on this record the Court dismisses that part of

Plaintiff’s First Claim brought under § 659A.203 to the extent

that Plaintiff does not allege sufficient facts to show that his

disclosures are protected under that statute.

III. Statute of Limitations as to events underlying that part of

Plaintiff’s First Claim brought pursuant to § 659A.203.

Even if Plaintiff’s disclosures were protected under 

§ 659A.203, Defendants assert the statute of limitations would

bar Plaintiff’s First Claim to the extent that it is based on

events that occurred before August 25, 2013, as set out below. 

Plaintiff, however, contends the statute of limitations does not

14 - OPINION AND ORDER

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bar his claims based on events before August 25, 2013, because

the “pending proceedings doctrine”2

 applies in this jurisdiction. 

In the alternative, Plaintiff asserts his claims based on events

before August 25, 2013, should not be barred based on the

equitable tolling of the statute of limitations period.

Oregon Revised Statute § 659A.875(1) provides any claim for

unlawful employment practices pursuant to Oregon Revised Statute 

§ 659A.885 (including claims brought under whistleblower

statutes) must be brought “within one year after the occurrence

of the unlawful employment practice unless a complaint has been

timely filed under ORS 659A.820.” A BOLI complaint must also be

filed “no later than one year after the alleged unlawful

practice.” Or. Rev. Stat. § 659A.820(2). The filing of the BOLI

complaint does not change the one-year requirement, but it allows

an aggrieved employee an additional 90 days to file a civil

action after BOLI issues its notice. Claims for unlawful

employment practices against an employer must be commenced within

those statutory periods. Or. Rev. Stat. § 659A.875. 

In his Complaint Plaintiff alleges he first took the Civil

2 The “pending proceedings doctrine” relied upon by

Plaintiff is described by the Supreme Court of New Hampshire in

Chase Home for Children v. New Hampshire Div. for Children, Youth

& Families, 162 N.H. 720, 729 (2011)(“A statute of limitations is

tolled during a pending administrative proceeding if that

proceeding is a prerequisite to a civil action.).

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Service examination in May 2011. Sometime in 2012 (although

neither party provides a specific date) allegations of “cheating”

on the 2011 examination came to light. The City investigated

and, according to Plaintiff, published findings regarding these

allegations on March 1, 2012. Within 14 days after these

findings were published, Plaintiff filed his appeal with the

Civil Service Board. The Board issued its adverse decision on 

October 3, 2012, and Plaintiff filed a writ of review in state

court challenging that decision. The state court granted

Plaintiff’s writ. According to Plaintiff, he “participated in

the Civil Service Board hearing, until it became obvious that it

would not address his bases [sic] for appeal or evidence.” At

some later date Defendant changed Plaintiff’s work assignment and

location.

In 2013 Plaintiff again took the promotional examination,

passed the written portion, and took the assessment examination

on June 26, 2013. Plaintiff later learned he did not pass the

examination and again was not eligible for promotion. 

As noted, Plaintiff’s first complaint with BOLI was filed on

August 25, 2014, and BOLI issued a Notice of Right to File a

Civil Suit on August 20, 2015. Plaintiff commenced his action in

state court on November 17, 2015, within 90 days after the BOLI

Notice. Accordingly, Plaintiff’s First Claim is barred by the

statute of limitations in § 659A.875(1) to the extent that

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Plaintiff seeks to recover for events that occurred before 

August 25, 2013, more than one year prior to the filing of his

BOLI complaint.

Plaintiff has not cited any binding precedent to support his

position that the “pending proceedings doctrine” applies in this

jurisdiction, and this Court has not found any such authority.

As noted, Plaintiff also asserts his claim should not be

barred based on equitable tolling of the limitations period

during the time he pursued his claim “before the various other

agencies” and cites Valenzuela v. Kraft, Inc., 801 F.2d 1170 

(9th Cir. 1986), to support his position. 

In Valenzuela the employee filed a Title VII discrimination

action in the California State court within 90 days of receipt of

a right-to-sue letter from the EEOC. The employer removed the

action to federal court. The district court dismissed the action

on the ground that federal courts have exclusive jurisdiction

over Title VII actions, and, therefore, the district court lacked

jurisdiction on removal from state court because the state court

never had jurisdiction. The Ninth Circuit affirmed the district

court decision on appeal. The employee then filed a Title VII

action in the district court. The employer moved for judgment on

the pleadings on the ground that the district court lacked

jurisdiction because the plaintiff’s complaint was not filed

within 90 days of the issuance of the right-to-sue letter. The

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district court denied the motion and found the filing of the

state-court action tolled the running of the 90-day period. On

appeal the Ninth Circuit agreed with the district court and held

the 90-day period was not jurisdictional and could be tolled on

principles of equity. The court concluded the employee should

not be denied a chance to present her case “because she chose the

wrong line of precedent” by filing her case in a court that

lacked jurisdiction. 801 F.2d 1170, 1175 (9th Cir. 1986).

Nevertheless, the doctrine of equitable estoppel applies

when the employee knows he has a claim, but the employer

affirmatively and actively takes action that causes the employee

not to file his lawsuit timely. Santa Maria v. Pac. Bell, 202

F.3d 1170, 1176 (9th Cir. 2000). A finding of equitable estoppel

rests on the consideration of a non-exhaustive list of factors,

including: 

(1) the plaintiff’s actual and reasonable reliance on the

defendant’s conduct or representations, (2) evidence of improper

purpose on the part of the defendant, and (3) the extent to which

the purposes of the limitations period have been satisfied. Id.

(citing Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir.

1981)).

Here Plaintiff selected the correct forum at each step. 

When Plaintiff filed his claim with BOLI on August 25, 2014,

however, any claim based on wrongful conduct that occurred more

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than one year earlier was barred under the statute of

limitations, and Plaintiff does not offer any basis for the

equitable tolling of the statute of limitations period. 

Accordingly, on this record the Court concludes the acts

alleged in paragraphs 3, 4, 5, 7, 8, and 9 of Plaintiff’s

Complaint3 in support of Plaintiff’s First Claim occurred before

August 25, 2013, and, therefore, those claims are barred by the

one-year statutory period set out in Oregon Revised Statute 

§ 659A.875. The Court, therefore, dismisses Plaintiff’s First

Claim to the extent that it is based on events that occurred

before August 25, 2013. 

IV. Jury trial on Plaintiff’s First Claim for unlawful

employment practices brought under Oregon Revised Statute 

§ 659A.203.

Even if any part of Plaintiff's First Claim arising from

events that occurred after August 25, 2013, had survived the

Court's analysis, the Court concludes Plaintiff would not be

entitled to a jury trial as to those issues. 

In its Motion Defendant moves to strike Plaintiff’s request

for jury trial as to his First Claim on the ground that Oregon

Revised Statute § 659A.885(1)(a) requires claims brought

pursuant to § 659A.203 to be decided by a judge. 

3 Defendant also moved against paragraph 10 of the

Complaint, but there Plaintiff alleges he first learned about the

changes in his scores “in the summer of 2014.” Because the exact

date is not indicated, any claims Plaintiff based on this

allegation may or may not be barred. 

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Plaintiff, however, argues Oregon Revised Statute 

§ 659A.885(3) allows a jury trial for claims brought by privatesector employees under § 659A.199, and, therefore, claims under 

§ 659A.203 by public-sector employees should be treated

similarly. Plaintiff relies on Huber v. Oregon Department of

Education, 235 Or. App. 230 (2010), to support his position. 

In Huber the plaintiff, a public employee, brought a claim

pursuant to § 659A.203 for his allegedly improper discharge after

he threatened to complain to the Oregon State Board of Nursing

about his employer’s substandard nursing practices. The Oregon

Court of Appeals affirmed the denial of a motion for summary

judgment and noted the issue of wrongful discharge was generally

a question of fact resolved by a jury. Id. at 240. The court,

however, did not address whether plaintiff was entitled to a jury

trial under § 659A.203.

Oregon Revised Statute § 659A.885(2) currently provides

actions brought by public employees pursuant to § 659A.203 are to

be determined by a judge. Section 659A.885(3), therefore, does

not address the issue.4

Accordingly, the Court concludes Plaintiff is not entitled

to a jury trial on his First Claim for unlawful employment

4 Oregon Revised Statute § 659A.885(3) has been amended by

2016 Oregon Laws Ch. 73, Sec. 5, to include actions brought under

§ 659A.203. The bill (HB 4067) was passed by the Oregon

Legislature and was signed by the Governor on March 29, 2016, but

it does not become effective until January 1, 2017.

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practices in violation of Oregon Revised Statute § 659A.203.

V. Plaintiff’s Second Claim for First Amendment protection.

Defendant moves to dismiss Plaintiff’s Second Claim for

First Amendment protection on the ground that the speech at issue

constitutes a matter of public concern. Defendant asserts the

allegations in Plaintiff’s Complaint merely refer to speech that 

deals with individual personnel disputes and grievances.

The First Amendment shields public employees from 

retaliation for their protected speech activities. The State, as

an employer, has an interest in regulating the speech of

employees, but it must balance the interests of the employee as a

citizen in commenting on matters of public concern against the

State’s interest in promoting the efficiency of public service. 

Hagen v. City of Eugene, 736 F.3d 1251, 1257 (9th Cir. 2013). 

Whether a public employee’s speech relates to a matter of public

concern is a question of law requiring the court to examine the

“content, form and context of a given statement as revealed by

the whole record.” Karl v. City of Mountlake Terrance, 678 F.3d

1062, 1069 (9th Cir. 2012). “Speech involves a matter of public

concern when it can fairly be considered to relate to ‘any matter

of political, social, or other concern to the community.’”

Johnson v. Multnomah County, Or., 48 F.3d 420, 422 (9th Cir.

1995)(quoting Connick v. Myers, 461 U.S. 138 (1983)). “[S]peech

that deals with ‘individual personnel disputes and grievances'

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and that would be of ‘no relevance to the public's evaluation of

the performance of governmental agencies' is generally not of

‘public concern.’” Coszalter v. City of Salem, 320 F.3d 968, 973

(9th Cir. 2003)(quoting McKinley v. City of Eloy, 705 F.2d 1110,

1114 (9th Cir. 1983)).

Defendant contends Plaintiff merely alleges in his Complaint

that he filed an appeal of his score on the 2011 promotion 

examination after the City investigated the rumors of cheating

and published its findings. Defendant asserts Plaintiff’s

advocacy of this information in an effort to persuade the Board

to change the results of Plaintiff’s examination was no more than

the presentation of a personal grievance. Plaintiff, however, 

characterizes his efforts as “an expose of cheating and

corruption by governmental employees in their effort to subvert

the civil service system in order to favor their cronies.”

In Robinson v. York the plaintiff brought a § 1983 action

against his employer. 566 F.3d 817 (9th Cir. 2009). The

plaintiff alleged he placed in the highest category of candidates

on a promotion examination, but he was denied a promotion in

violation of his First Amendment rights because he had earlier

reported incidents of misconduct within his department to his

superiors. In addressing the “public concern” aspect of the

plaintiff’s First Amendment claim, the defendants conceded even

though some of the plaintiff's “internal reports of certain

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alleged misconduct involved matters of public concern,” others

did not. The defendants asserted the plaintiff’s follow-up

communications regarding his reports of misconduct were not

“matters of public concern.” The court ultimately found some of

the plaintiff’s reports of possible corruption, discrimination,

and/or misconduct by fellow employees and the follow-up on those

complaints were “clearly matters of public concern.” Id. at 822.

Here, in contrast to the plaintiff’s allegations in

Robinson, Plaintiff’s allegations regarding the public-concern

nature of his disclosures do not satisfy the pleading standard

necessary for plausible First Amendment protection. 

Accordingly, the Court dismisses Plaintiff’s Second Claim. 

VI. Plaintiff’s Third Claim for Intentional Infliction of

Emotional Distress.

Defendant moves to dismiss Plaintiff’s Third Claim for

intentional infliction of severe emotional distress on the ground

that the allegations in Plaintiff’s Complaint do not constitute

an extraordinary transgression of the bounds of socially

tolerable conduct. Plaintiff, in turn, contends the “agonizing

competitive” nature of the promotion process was aggravated by

his discovery of cheating as well as Defendants’ alleged acts of

retaliation.

To state a claim for intentional infliction of severe 

emotional distress, a plaintiff must plead: (1) the defendant

intended to inflict severe emotional distress on the plaintiff,

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(2) the defendant’s acts were the cause of the plaintiff’s severe

emotional distress, and (3) the defendant’s acts constituted an

extraordinary transgression of the bounds of socially tolerable

conduct. McGanty v. Staudenraus, 321 Or. 532 (1995). 

Whether conduct constitutes an actionably outrageous

transgression of social norms is based on a fact-specific, caseby-case analysis. Zeggert v. Summit Stainless Steel, LLC, No.

3:13-CV-00016-PK, 2014 WL 3512497, at *7-8 (D. Or. July 10, 2014)

(citing Lathrope–Olson v. Dep’t of Transp., 128 Or. App. 405, 408

(1994)). Although determination of social norms is the kind of

inquiry that is appropriately undertaken by a jury, the court,

functioning as a gatekeeper, performs that role in the context of

an intentional infliction of severe emotional distress claim. 

Zeggert, 2014 WL 3512497, at *7-8 (citing Pakos v. Clark, 253 Or.

113 (1969)). See also House v. Hicks, 218 Or. App. 348, 358,

review denied, 345 Or. 381 (2008). 

Actions by an employer “do not necessarily qualify as

intentional inflictions of severe emotional distress unless they

are also the kind of aggravated acts that a jury could find

beyond all tolerable bounds of civilized behavior.” Zegert, 2014

WL 3512497, at *7-8 (citing Hall v. The May Dep’t Stores, 292 Or.

131 (1981)). 

In every case in which the Oregon appellate courts have 

allowed an emotional distress claim asserted in the context of an

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employment claim to proceed to a jury, the employer engaged in

conduct that was more than aggravating, insensitive, petty,

irritating, perhaps unlawful, or mean. In some cases the

employer engaged in or threatened to engage in unwanted physical

contact of a sexual or violent nature (see Lathrope–Olson v.

Dep’t of Transp., 128 Or. App. 405 (1994)(threatening to push the

plaintiff into the path of oncoming vehicles)); used derogatory

racial, gender, or ethnic slurs usually accompanied by some other

aggravating circumstance (see Whelan v. Albertson's, Inc., 129

Or. App. 501 (1994)(manager repeatedly referred to the plaintiff

as a “queer” and imitated his allegedly effeminate

characteristics)); exposed the plaintiff to actual physical

danger (see Babick v. Oregon Arena Corp., 333 Or. 401

(2002)(released intoxicated and violent concert-goers who had

been detained by the plaintiffs)); repeatedly subjected the

plaintiff to verbal abuse, forced her to do work from which she

was medically exempted, and forced her to engage in illegal

conduct (see Schoen v. Freightliner LLC, 224 Or. App. 613

(2008)(called the plaintiff “worthless” almost daily, assigned

work that exceeded her medical limitations, and ordered the

plaintiff to collect illegal “football pool” bets)); or involved

acts of psychological and physical intimidation, racism, or

sexual harassment (see Kraemer v. Harding, 159 Or. App. 90

(1999)(continuing accusations that a school bus driver was a

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Case 3:16-cv-00215-BR Document 15 Filed 07/14/16 Page 25 of 28
child sex-abuser after multiple investigations concluded there

had not been any inappropriate conduct)). See also Wheeler v.

Marathon Printing, Inc., 157 Or. App. 290 (1998)(co-worker

continued “sadistic” harassment including sexual intimidation and

insults even after the plaintiff attempted suicide); Mains v. II

Morrow, Inc., 128 Or. App. 625 (1994)(daily physical assaults and

sexual comments by supervisor); Franklin v. Portland Comty.

Coll., 100 Or. App. 465 (1990)(supervisor called an

African–American male by the name “boy,” issued false reprimands,

shoved him, locked him in an office, suggested he apply elsewhere

for employment, and otherwise subjected the plaintiff to “verbal

and physical abuse”). 

Here, as noted, Plaintiff contends the “agonizingly

competitive” nature of the promotion process was aggravated by

his discovery of cheating. When Plaintiff attempted to “inform

higher-ups,” he allegedly was met with roadblocks at every turn. 

According to Plaintiff, when he tried to take the promotion

examination a second time, the 

City insiders were in full-scale "retaliation mode."

They set out to trip him up on the date and time for

his assessment center appearance, which muddied up his

appearance before obviously annoyed evaluators who had

to be held over extra hours at the assessment center

just to evaluate him. They raised the bar on what

constitutes a passing score; they breached their own

rules in scoring his written examination; they've given

him the least desirable station assignments; they've

coached, groomed, and mentored competing candidates on

exam performance without offering him the same favors,

and; they've even issued a false statement to Oregon

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Case 3:16-cv-00215-BR Document 15 Filed 07/14/16 Page 26 of 28
PERS, denying his employment as a firefighter with the

City and needlessly complicating his PERS retirement

account. 

Resp. at 26-27. Although these allegations might give rise to a 

conventional employment-related action, they do not reach the

level of aggravated acts that a jury could find beyond all

tolerable bounds of civilized behavior.

On this record the Court concludes Plaintiff’s Third Claim

does not satisfy the standard required to state a claim of

intentional infliction of emotional distress that is plausible on

its face. Accordingly, the Court dismisses Plaintiff’s Third

Claim.

CONCLUSION

For these reasons, the Court GRANTS Defendants’ Amended

Motion (#5) to Dismiss as follows: 

1. DISMISSES with prejudice that part of Plaintiff’s First

Claim brought under Oregon Revised Statute § 659A.199; 

2. DISMISSES that part of Plaintiff’s First Claim brought

under Oregon Revised Statute § 659A.203 and GRANTS Plaintiff

leave to amend his Complaint as to this issue; 

3. DISMISSES with prejudice that part of Plaintiff’s First

Claim that is based on acts that occurred before August 25, 2013,

and, therefore, is barred by the statute of limitations under

Oregon Revised Statute § 659A.875; 

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4. DENIES Plaintiff’s request for jury trial on his First

Claim;

5. DISMISSES Plaintiff’s Second Claim and GRANTS Plaintiff 

leave to amend his Complaint as to this issue; and 

6. DISMISSES Plaintiff’s Third Claim and GRANTS Plaintiff 

leave to amend his Complaint on this issue. 

The Court GRANTS Plaintiff leave to amend his Complaint no

later than August 20, 2016, to cure the deficiencies set out in

this Opinion and Order limited to those issues specified in

numbers 2, 5, and 6 above.

IT IS SO ORDERED.

DATED this 14th day of July, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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