829 F. Supp. 2d 940
D. Or.2011Background
- Plaintiff Kelly Shepard (City employee) sues City of Portland, Kahn, and Johnson for employment discrimination and retaliation.
- Shepard’s career began in 1981; promoted to Senior Public Works Supervisor in 2000 under Burkhardt (Division Manager) and Irving (Group Manager).
- Between 2003–2010 Shepard faced multiple workplace conflicts, complaints, and workplace investigations involving discipline and management changes.
- Shepard developed anxiety disorder in 2005, took medical leave in 2006; temporary promotion was denied in 2006 with subsequent events tied to leave and performance actions.
- In 2007–2010 Shepard filed multiple workers’ compensation, OFLA, and discriminatory/retaliation claims; OTCA notice and timing issues later defined the scope.
- Dispositive procedural posture: City moves for summary judgment on most federal/state claims; Kahn and Johnson move for summary judgment; trial court issues both partial grants and denials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McDonnell Douglas applies to these state and federal claims | Snead requires McDonnell Douglas; plaintiff. | McDonnell Douglas governs all retaliation/discrimination claims. | McDonnell Douglas framework applies to all employment discrimination/retaliation claims. |
| Whether continuing violations toll limitations for the claims | Continuous harm extends the period for timely claims. | Morgan bars continuing violation for discrete acts; only hostile environment tolls apply. | Continuing harm does not toll OTCA/FMLA/OFLLA claims; hostile environment may toll, but not here. |
| OTCA notice and timing for OFLA, injured worker, and whistleblower claims | Actual/formal notice supported broader time window. | Formal notice deadlines govern; some claims time-barred. | OFLA/injured worker/whistleblower claims barred for pre-cutoff events; some claims survive within post-cutoff period. |
| Whether FMLA claim survives as interference or retaliation | FMLA retaliation/ interference exists; prima facie shown. | Interference/retaliation distinctions limit recoveries. | FMLA interference claim survives; summary judgment denied for FMLA. |
| Whether the First Amendment § 1983 claim against the City/Kahn/Johnson survives | Speech about internal investigations/is protected; there are triable issues. | No causal link or policy; City has no Monell proof; individuals lacked liability. | City § 1983 claim granted; individual §1983 claim fails; settlement encouraged. |
Key Cases Cited
- Morgan v. United States, 536 U.S. 101 (U.S. 2002) (continuing violations doctrine limited; discrete acts time-barred)
- Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (U.S. 1998) (hostile environment requires conduct based on protected status)
- Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000) (broad view of adverse actions in harassment contexts)
- Strother v. Southern Cal. Permanente Med. Grp., 79 F.3d 859 (9th Cir. 1996) (adverse actions include reduced duties and responsibilities)
- Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009) (five-step test for First Amendment retaliation claims)
- Davis v. Team Elec. Co., 520 F.3d 1080 (9th Cir. 2008) (burden-shifting framework applies to discrimination claims under Snead)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (burden on movant to show absence of genuine issue of material fact)