Mitchell v. Oregon Health and Science University

Response to Motion to Dismiss for Failure to State a Claim 9 Oral Argument requested. Filed by Erica Mitchell.

District of Oregon, ord-3:2018-cv-01982

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1 Jeff Merrick, OSB # 842987 jmerrick @ jeffmerrick. com Merrick Law, LLC 811 SW Naito Parkway, Suite 420 Portland, OR 97204 505 - 665 - 4234 Lead Attorney for Plaintiff Dr. Mitchell Kim Sordyl, OSB # 031610 kim @ kimsordyl. com Sordyl Law, LLC. 422 NW 13th Ave, # 751 Portland, OR 97209 Phone: 503 - 502 - 1974 Attorney for Plaintiff Dr. Mitchell UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION Dr. ERICA MITCHELL, Case No .: 3: 18 - cv - 01982 - SB Plaintiff, PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS OREGON HEALTH and SCIENCES UNIVERSITY, an Oregon Public Corporation JOHN HUNTER, MD and individual, GREG MONETA, MD, an individual and KENNETH AZAROW, MD, an individual. Defendants. Summary Defendants conferred on five issues. (Ex. 1) . Defendants failed their burden on those five motions because the complaint alleges enough facts to pass Twigbal's sniff test. The court should deny the other motions because Defendants did not confer on them. Page 1 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 Dr. Mitchell bravely challenges the glass - ceiling and old - boys ' network that has broken OHSU, led to the departure of great physicians, and hurt an entire region that needs a strong and well - functioning academic medical center. Defendants ' abusive motion practice can be viewed Ca as retaliation. Table of Contents 1. The court should deny OHSU's motion alleging lack of capacity because OHSU must raise the issue by affirmative defense, not motion. . . . . . . . . cnic (1) (2) . . . . . . . . . . . . The court must deny OHSU's motion because OHSU is " person " under $ 1983. Summary The Law. . . . . . . . . . . . . . . OHSU won a divorce from the State in 1995. . . . . . . . OHSU's goal. . OHSU is financially independent from the state. . . . . . . . OHSŲ won freedom to act like a private business. . . . . . . . . . OHSU won freedom to hire its own lawyers, manage its risks, and pay judgments out of its own funds, not from the state treasury. . . . . . . . OHSU lost its character as a state agency. . . . ORS 353. 020 re - made OHSU as an independent public corporation. . . . . . D. OHSU's arguments do not account for the facts. E. Conclusion. . . . (5) Defendants ' burden under FRCP 8. . . . . . . . Equal Pay Act Claims exceed Twigbal standards. . . . . . . . . . . . . . 10 a na w The complaint alleges Dr. Mitchell suffered from discrimination. The complaint adequately alleges hostile work environment. . . . . . . . . You may skip this section because defendants did not confer. . . . . . . . . . B. OHSU's flawed premise and the actual issue. C. Twigbal considers context, and Academic Medicine is not Taco Bell. . . . . . . D. Facts Alleged in the Complaint. . . . . . . Conclusion: Defendants failed their burden. . . . . . . . . . Whether Oregon's Tort Claims Act bars some of plaintiff's claims is premature. Yet, Plaintiff's Oregon law claims are timely. . . . . Issue raised by Defendants. . . . . . . . . B. Oregon law requires a continuing tort analysis. Analysis. . . . . . . . 1. Discrimination, Hostile Environment, and Discharge Claims. . . Page 2 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 2. Wage claims. . Conclusion: Oregon law claims are timely. . 8. Aiders and abettors may be liable. . . . Please deny all other motions because defendants violated LR 7 - 1. . . . . . . . Conclusion. . 10. 1. The court should deny OHSU's motion alleging lack of capacity because OHSU must raise the issue by affirmative defense, not motion. OHSU " must " raise lack of capacity to be sued by a specific denial. FRCP 9 (a) (2) . If the court agrees, then you need not read the next section, which proves OHSU is subject to $ 1983. 2. The court must deny OHSU's motion because OHSU is " person " under $ 1983. A. Summary. Oregon law establishes OHSU as " person " under $ 1983 because it is an independent corporation in all relevant matters, including responsibility for risk management and paying judgments. OHSU need not comply with laws that characterize state agencies, and Oregon provides only 1. 3 % of OHSU's funding. Furthermore, the law declares OHSU " not a state 010 agency. " B. The Law. . " Every person who, under color of [ law ] of any State. . . subjects, or causes to be subjected, any. . . person within the jurisdiction thereof to any deprivation of rights. . . secured by the Constitution and laws, shall be liable to the party injured [ .) " 42 USC § 1983. Governmental Tove entities may be " persons. " Monell v. Dept of Social Services, 436 US 658 (1978) (Employment claim against school board and city department) . States are not " persons. " Will v. Mich Dept of State Police, 491 US 58 (1989) . Will rejected OHSU's argument equating 11th Amendment immunity with " person. " Will said, " This does not mean, as petitioner suggests that we think that the scope of the Eleventh Amendment and the scope of § 1983 are not separate issues. Page 3 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 Certainly they are. " 491 US at 66. ' Will did not explain the difference, and federal courts have articulated different factors, even for 11th Amendment immunity. See, Johnson v. SAIF Corp ., 202 Or App 264, 272 - 277 (2005), adhered to on recon, 205 Or app 41 (2006), affirmed 343 Or 139 (2007) (reviews case law) . Whichever list of factors a court uses, the court must apply the factors to the peculiar facts of the entity. Regents of Univ. of Cal v. Doe, 519 US 425, 429, n. 5 (1997) (independent status " can be answered only after considering the provisions of state law that define the agency's character") . In our circuit, courts often focus on the following considerations: In Mitchell v. Los Angeles, 861 F. 2d 198 (9th Cir. 1989), we articulated five factors to determine whether an agency is an arm of the state: (1) " whether a money judgment would be satisfied out of state funds, " (2) " whether the entity performs central governmental functions, " (3) " whether the entity may sue or be sued, " (4) " whether the entity has the power to take property in its own name or only the name of the state " and (5) " the corporate status of the entity. " Id. at 201. Eason v. Clark County School Dist ., 303 F3d 1137 1141 (9th Cir 2002) . The first factor - who pays - is the most important. For example, in Beentjes v. Placer County Pollution Control Dist ., 254 F Supp 2d 1159 (ED Cal 2003), the governmental agency was not an arm of the state because the state would not pay the judgment, and the state funded only 6 % to 9. 5 % of the agency's budget. C. OHSU won a divorce from the State in 1995. (1) OHSU's goal. OSHU became a " public corporation " in 1995. 1995 Or Laws c. 162 82. OHSU hoped to The quote continues, " But in deciphering congressional intent as to the scope of g 1983, the scope of the Eleventh Amendment is a consideration, and we decline to adopt a reading of g 1983 that disregards it. " Will, 491 US at 66 - 67. Page 4 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 become a top - 10 biomedical research facility and drive Oregon's Biotech industry. ? OHSU wanted to " resemble a private corporation with the ability to operate in a more businesslike and efficient manner. » 3 It wanted out from burdensome regulations controlling state agencies. Id. (2) OHSU is financially independent from the state. OHSU's attorney explained to lawmakers that OHSU " will not be considered a state agencyl. 1 " Independent corporation status, she stressed, would make OHSU's debts not debts of the state. On the other hand, OHSU would reap the financial benefits of spending and investing. For example, the exemption from ORS Ch. 293 allowed OHSU to keep the interest on its own money, which cost the general fund $ 800, 000 back then. OHSU states it has an annual operating budget of $ 2. 8 billion. Oregon funds only 1. 3 % of the budget. ? As of today, financially, OHSU is 98. 7 % independent. Cf ., Beenjtes, supra, (6 % to 9. 5 % state - funded entity not an arm of the state) . Oregon and OHSU agreed to a property division in their divorce. Oregon kept title to real property, but OHSU had to maintain it. 1995 Or Laws Chap 162 $ 34. Unexpended moneys went to OHSU. 9935 & 48. OHSU assumed the rights and obligations of contracts. 844. OHSU had to pay bond debt previously incurred for OHSU and any legal expenses, judgments or liabilities arising from bonds. 358. After enactment, OHSU could issue its own bonds, which " shall not be considered an indebtedness of the State of Oregon, " (859), but rather are considered 21 bonds or obligations of a political subdivision of the State of Oregon for purposes of the state " 2 See, Final Report of Public Advisory Committee, 1 / 20 / 1995 (Ex. 2) and OHSU's President Peter Kohler's Testimony before the Senate Education Committee (2 / 23 / 1995) (Ex. 3) . 3 Kohler testimony. 4 Janet Billups, Memo to Senate Education Hearing 2 / 28 / 1995 (Ex. 4, p. 1) (emphasis in original) . s Id. p. 2, quoting, Martin v. Oregon Building Authority, 276 Or 135 (1976) . * Financial Analysis of SB 2, 1995 (Ex. 5) ? https: / / news. ohsu. edu / news - media / facts (last checked 1 / 17 / 2019) Page 5 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 (860), like municipalities, which are " persons " under $ 1983. (3) OHSU won freedom to act like a private business. OHSU acts like a private business. It may: Contract, enter into any partnership, joint venture or other business arrangement, create and participate fully in the operation of any business structures. ORS 353. 050 (3) . Acquire, purchase, receive, hold, control, convey, sell, manage, operate, lease, license, lend, invest, improve, develop, use, dispose of and hold title to real and personal property of any nature, including intellectual property, in its own name. ORS 353. 050 (4) " Sue in its own name and be sued, plead and be impleaded in all actions, suits or proceedings in any forum brought by or against it by any and all private or state, local, federal or other public entities, agencies or persons. " ORS 353. 050 (5) (emphasis added) . Borrow money for the needs of the university, in such amounts and for such time and upon such terms as may be determined by the university or the board. ORS 353. 050 (8) . Purchase, receive, subscribe for or otherwise acquire, own, hold, vote, use, sell, mortgage, lend, pledge, invest in or otherwise dispose of and deal in or with the shares, stock or other equity or interests in or obligations of any other entity. Separate funds may be established for such investments. " The State of Oregon shall bave no proprietary or other interest in such investments or such funds. " ORS 353. 050 (19) (emphasis added) . OHSU need not have to use other state agencies for services, such as the state printing office, Department of Administrative Services, and many other exemptions, noted infra. (4) OHSU won freedom to hire its own lawyers, manage its risks, and pay judgments out of its own funds, not from the state treasury. ORS 353. 100 (2) exempts OHSU from the following laws that apply to state agencies regarding legal defense, risk management, and payment of judgments: Unlike state agencies, OHSU need not use the Attorney General. ORS 180. 060; 180. 210 255. 8 • The Attorney General need not approve OHSU agreements. ORS 190. 490. Department of Administrative Services has exclusive authority to manage claims against state agencies, including investigation, negotiation and settlement. ORS 278. 120. DAS had zero authority over claims against OHSU. ORS 353. 100 (2) . Chapter 293, which covers the administration of public funds no longer has anything to do with OHSU. This includes the approval and payment of claims from any monies in the State Treasury. " ORS 293. 295 (emphasis added) . 8 ORS 353. 100 (2) lists the exempted statutes. In this list, I refer to the exempted statutes, not ORS 353. 100 (2)