Mitchell v. Oregon Health and Science University

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

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

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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) . Page 6 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 (5) OHSU lost its character as a state agency. Certain laws characterize Oregon State Agencies, and OHSU won exemptions from most of them. It need not follow the Administrative Procedures Act or comply with the laws that control state administrative agencies in ORS Ch. 183 & 182. It need not comply with laws controlling state real property or state lands. ORS Chs. 270 and 273. Public contracting laws and public facilities insurance laws no longer apply to OHSU. ORS Chs. 279A, B & C, and 276. OHSU is no longer a captive customer of services from other agencies. ORS Chs. 282 & 283. And the list goes on and on. ORS 353. 100 (2) . Because OHSU is " a distinct governmental entity " no post - 1995 laws impacting state agencies apply to OHSU unless the law expressly mentions OHSU. ORS 353. 100 (3) . (6) ORS 353. 020 re - made OHSU an independent public corporation. OHSU " shall be an independent public corporation [ . ] " ORS 353. 020. Yet, as OHSU's attorney explained, " The university will continue to be subject to federal constitutional requirements such as due process and federal laws such as civil rights act, antidiscrimination laws and the copyright infringement act. " 9 OHSU remains a " governmental entity " but " shall not be considered. . . a state agency for purposes of. . . constitutional provisions. " ORS 353. 020. D. OHSU's arguments do not account for the facts. OHSU has argued successfully it is a proper defendant under $ 1983. Allen v. OHSU, 2006 WL 2252577 (06 - CV - 285 - BR, D Or 2016) (to avoid a claim of wrongful discharge) . PACER reveals many other cases in which OHSU was sued under $ 1983, including Harris v. OHSU, 1999 WL 778585, (CV - 98 - 1 - ST, D OR 1999), where Judge Stewart held OHSU may be sued under $ 1983. 9 Janet Billips, Memo to Senate Education Hearing 2 / 28 / 1995 (Ex. 4, p. 5) . Page 7 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 OHSU cites Will v. Mich. Dept of State Police, 491 US 58 (1989), which left open the possibility an entity could have characteristics providing it with 11th Amendment immunity AND still be subject to $ 1983 claims. Will, 494 US at 66. 10 Six years after Will, Oregon re - created OHSU as a " independent public corporation. " ORS 353. 020. OHSU " shall not be considered. . . a state agency for purposes of state statutes or constitutional provisions. " ORS 353. 020. In effect, lawmakers circumvented Will. Lawmakers declared OHSU a governmental entity for some purposes but not a state agency for constitutional claims. When one applies OHSU's facts to the standard set forth in Mitchell v. Los CA Angeles Comm College Dist, 861 F. 2d 198 (9th Cir. 1989), OHSU is not an arm of the state: Judgments will not be satisfied from state funds. 2. OHSU is primarily a research hospital and performs few, if any " governmental functions. " By finances, OHSU is 98. 7 % private. 3. OHSU may sue and be sued. 4. OHSU has the power to take property in its on name, and it may not hold property in the name of the state. 5. OHSU has an independent corporate existence. OHSU wrongly compares itself to Oregon universities and California's Regents. OHSU differs from both. California's Constitution grants The Regents broad powers and requires high elected officials to oversee them: full powers of organization and government. . . Said corporation shall be in form a board composed of. . . the Governor, the Lieutenant Governor, the Speaker of the 10 " This does not mean, as petitioner suggests that we think that the scope of the Eleventh Amendment and the scope of g 1983 are not separate issues. Certainly they are. " 11 According to OHSU's Attorney Billups, the 1995 Act " resurrects " older authority that higher education is not a " traditional governmental function. " Ex. 4, p. 4 n. 1. Page 8 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 Assembly, the Superintendent of Public Instruction, the president and the vice president of the alumni association of the university and the acting president of the university, and 18 appointive members appointed by the Governor and approved by the Senate. Cal. Const. art. 9, 89 (a) . By contrast, OHSU's Board has ZERO elected officials. Consistent with OHSU's desire to be like a private business, the majority of the board have jobs in the for - profit, private sector, including lumber and manufacturing. 12 The record before you has no evidence on how Mitchell's five factors might apply to The Regents, and the court would err if it dismissed this lawsuit in reliance upon The Regents cases. OHSU cites the unreported case of Brainard v. W. Or. Univ ., 2017 WL 1534191 (3: 17 CV - 0253 - SI, D Or 2017), which is not on point because ORS 352. 002 lists Western Oregon University as a " university " but excludes OHSU. ORS 352. 002. This is intentional. In 1995, lawmakers used the following definitions in SB 2: (1) " Former university " means the Oregon Health Sciences University in its former status as a university within the State System of Higher Education under ORS 352. 002 (1993 Edition) . (2) " University " means the Oregon Health and Sciences University public corporation created under section 2 of this Act. " 1995 Or Laws Ch. 162 $ 32. Consequently, this court would err to rely on the Brainard case, because OHSU is a " independent public corporation " and not a " public university. " E. Conclusion. Since 1995, OHSU has been a public corporation subject to suit under $ 1983 because it meets all the Mitchell factors. Defendants have not met their burden under Rule 8. 12 https: / / www. ohsu. edu / about / board - directors (last checked 1 / 8 / 2019) . Page 9 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 3. Defendants ' burden under FRCP 8. The complaint must contain a short and plain statement of the claim. " FRCP 8 (a) . " Each allegation must be simple, concise and direct. " RFCP 8 (d) . The court must construe the complaint " so as to do justice. " FRCP 8 (e) . FRCP 8 " does not require detailed factual allegations. " Bell Atlantic Corp v. Twombly, 550 US 544, 555 (2007) . Plaintiffs need only plead enough facts " to nudge [ ] their claims across the line from conceivable to plausible. " Id. at 570. Defendants have a high burden to show the complaint fails the low bar set forth by FRCP 1 8 and " Twigbal. " " Twigbal " did not change the mandate to construe pleadings liberally. E. g ., Johnson v. Shelby, Miss ., 574 US, 135 SCt 346 (per curium 2014) (plausible claim did not require pleading the correct legal theory) . A court must (1) construe the complaint in the light most favorable to plaintiff, (2) accept the allegations as true, and (3) draw all inferences in favor of plaintiff. E. g ., Dowers v. Nationstar Mortgage, LLC ., 852 F3d 964, 969 (9th Cir 2017) . Determining whether a complaint states a plausible claim is " context - specific, " requiring the reviewing court " to draw on its experience and common sense. " Ashcroft v. Iqbal, 556 US 662, 679 (2009) . To win dismissal, defendant must prove that the facts alleged plus all reasonable inferences are not " plausibly suggestive of a claim entitling the plaintiff to relief. " Moss v. US Secret Service, 572 F3d 962, 969 (9th Cir 2009) . 12 4. Equal Pay Act Claims exceed Twigbal standards. ey Dr. Mitchell's Equal Pay Act claims exceed Twigbal standards. 3 They include: (A) admissions by the man responsible for deciding upon wages; (B) the disparate approach women had to use to seek equal pay, and (C) specific names of comparators. 1 15A. OHSU argues Dr. Mitchell did not sufficiently plead equal work. OHSU is wrong. 12 Plaintiff seeks the opportunity to replead if the court should dismiss any of her claims. 13 1 attach the Second Amended Complaint to the judge's copy. Page 10 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 Dr. Mitchell condensed her 20 + page, single - spaced CV into two double - spaced pages. (2d Am. Complaint 11 4 - 7) . She's a surgeon. She's a professor. She produces and reviews peer - reviewed literature. She does what men and women in Academic Medicine do. One can reasonably infer she knows what her colleagues do within the Department of Surgery at OHSU. She alleged, and you must take as true, " OHSU employed males in jobs requiring substantially equal skill, effort and responsibility " and paid them more. 1913 & 15. She alleged Dr. Moneta explained the pay difference on sex - role stereotypes - - not on different work. 915A. Dr. Mitchell alleged " on information and belief " disparate reimbursement between herself and men. 915D. Using your experience and common sense, these allegations are adequate to force OHSU to produce job descriptions, salary records and other evidence we need to prove the claim. OHSU relies on a case with a very different context, EEOC v. Port Authority, 768 F3d 247 (2d Cir 2014): Port Authority considered a motion for judgment on the pleadings, not a sniff - test Rule 8 motion. Id .; EEOC v. Port Authority, 2012 WL 1758128 (SD NY 2012) . The EEOC had investigated defendant for three years before filing suit. In the case at bar, OHSU refuses to produce records requested in October 2018. The trial court relied on EEOC's answers to contention interrogatories – not only the complaint. EEOC v. Port Authority, 2012 WL 1758128 (SD NY 2012) . The EEOC complaint did not identify any male comparators. EEOC admitted to the trial judge its theory was " an attorney is an attorney is an attorney. " EEOC v. Port Authority, 2012 WL 1758128 (SD NY 2012) . By contrast, (1) Dr. Mitchell and her lawyers have not been working the case for three years with investigatory powers; (2) Dr. Mitchell alleged comparators; (3) We have not made any damning admissions similar to " an attorney is an attorney; " (4) Considering Dr. Mitchell's long list of her qualifications, one can infer Dr. Mitchell believes qualifications and certifications can Page 11 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 distinguish one physician from another - as compared to believing " a doctor is a doctor is a doctor. " Other courts note the unique circumstances of EEOC v. Port Authority. For example: The Second Circuit in Port Authority of New York & New Jersey stressed that the absence of allegations concerning the content of the relevant job was especially noteworthy because the EEOC had performed a three - year investigation before filing the EPA claims. . . . Unlike the EEOC, Plaintiffs here have not had an opportunity to conduct their own detailed investigation into Defendants ' pay practices. This difference further undermines Defendants ' reliance upon Port Auth. of New York & New Jersey. Galligan v. Detroit Free Press, 293 F Supp 3d 707, 714 n. 4 (ED MI 2018) . 11: TALL Human beings (as compared to the EEOC after years of investigation) cannot reasonably be expected to have full evidence before discovery. Consequently, courts grant " latitude " in applying the plausibility standard in cases in which " a material part of the information needed is likely to be within defendant's control. " E. g ., Garcia - Catalan v. US, 734 F3d 100, 105 (1st Cir 2013) . The plausibility inquiry considers whether discovery may fill in any holes. See, Twombly, 550 US at 556 (plausibility simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence") . In summary, the court should advance the wage claims past the Rule 8 sniff - test because: (1) it pleads sufficient facts and raises sufficient inferences, (2) this case differs dramatically from Port Authority, and (3) any holes can be filled in with evidence in the control of OHSU. 5. The complaint alleges Dr. Mitchell suffered from discrimination. Defendants conferred only on the following, " the hostile work environment claim is insufficiently plead [ sic ] under Iqbal / Twombly because the allegations relate to women generally and OHSU (and are conclusory at that) rather than Dr. Mitchell specifically. " (Exhibit 1) . We Page 12 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 repleaded to remove OHSU's concern, and the court should deny the motion against the discrimination claims. 6. The complaint adequately alleges hostile work environment. A. You may skip this section because defendants did not confer. Defendants did not confer on the substance of the discrimination charge, only that we did not mention Dr. Mitchell enough. So, the court need not read this section. LR 7 - 1. B. OHSU's flawed premise and the actual issue. OHSU argues unlawful discrimination " because of sex " requires (a) conduct aimed at gettin ' some sex (b) from the plaintiff. We disagree. An employer may not create or tolerate an environment in which women suffer from different terms and conditions of employment, the cumulative impact of which is abusive or hostile. " Because of sex " requires conduct based on the victim's gender and need not include sexual comments or touching. E. g ., Nichols v. Azteca Restaurant, 256 F3d 864, 874 (9th Cir 2001); Andrews v. City of Philadelphia, 895 F. 2d 1469, 1485 (3d Cir. 1990) (liability is possible even where conduct complained of does not contain sexual overtones) . Not all actions must be directed toward a plaintiff. Witnessing or knowing about harassment of co - workers is relevant and may suffice. E. g ., Hess. v. Multnomah Co ., 216 F Supp 2d 1140 (D Or 2001) (hostility toward coworkers supports claim of pervasive hostile environment); Chebbi v. Gladstone Auto (03: 10 - CV - 1560 HZ, D OR 2012) (Witnessing harassment contributes to hostile work environment); Vinson v. Taylor, 753 F2d 141, 146 (DC Cir 1985) (person who is not the object of harassment might have claim); Kishaba v. Hilton Hotels Corp ., 737 F Supp 549, 554 (D Haw 1990) (same); EEOC v. Fred Meyer Stores, Inc ., 954 F Supp 2d 1104 (D Or 2013) (hearing accounts of unremedied harassment of co - workers Page 13 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 contributed to hostile work environment) . . C. Twigbal considers context, and Academic Medicine is not Taco Bell. Every hostile working environment case arises from a series of discrete events, even in a fast - food restaurants where the allegations include comments, propositions, and touching. Such conduct constitutes both disparate treatment and may support a hostile environment claim. In Academic Medicine, the gender - based conduct impacting women in differs from that in a Taco Bell. Some doctors pursue academic medicine to affect positive change nationally or internationally. To advance within one's institution, grow one's capabilities and earn the power to affect positive change, a physician must work very long hours and achieve positive recognition in all three academic domains: service, scholarship and teaching (as compared to the clinical tract which emphasizes teaching and education) . Service work includes committee membership at the divisional, departmental, institutional, regional, national, and international level. Scholarship includes research and publication of research in peer - reviewed articles, chapters, editorship, and presentation of work. Dr. Mitchell achieved professorship and became a national leader in her field. She affected positive change to national guidelines for assessment of competency for all vascular surgical trainees in the United States. To accomplish this, Dr. Mitchell worked many years, investing time serving on committees, including for the Association of Program Directors of Vascular Surgery (APDVS) and then presented her work to the group. When Dr. Azarow stripped Dr. Mitchell of her position of Program Director of the Vascular Surgery Fellowship he knew or should have known that would likely disqualify Dr. Mitchell from holding a position within this national association, thereby preventing her from working on the APDVS Executive Page 14 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 Committee, to which she had been elected by her national peers. All defendants know that stripping a professor of her service committees is a demotion and viewed as such both within an institution and among national peers. Although this discrete act is actionable on its own, it also is part of the larger hostile environment - - like the sexual assault after months of comments at the Taco Bell. So, a hostile work environment in Academic Medicine feels different from the hostile work environment at Taco Bell. It includes asking women surgeons more often than men to explain their surgical approach; referring to women by first name instead of " Dr. Last Name; ": paying women less; offering men greater opportunities for advancement; gender role stereotyping; and stripping them of academic positions, among other things. And yes, just like Taco Bell, OHSU tolerates vulgar sexual comments in the workplace from men deemed too important to lose. The cumulative impact became intolerable for Dr. Mitchell. Studies validate women surgeons ' perceptions of gender discrimination, including one conducted by OHSU researchers. 16 D. Facts Alleged in the Complaint. The complaint notes the following specifics: • OHSU paid Dr. Mitchell less than men. OHSU and Dr. Moneta justified the difference telling Dr. Mitchell, " You don ' t have kids or a family. You aren ' t married. You don ' t have to support a family. " | 15A. 15 See, e. g ., Anna Mueller, et. al ., Gender Differences in Attending Physicians ' Feedback to Residents: A Qualitative Analysis, J GRAD MED EDUC, 2017 Oct; 9 (5): 577 - 585; L. Martinez, et. al ., Fleeing the Ivory Tower: Gender Differences in the Turnover Experiences of Women Faculty, J WOMEN'S HEALTH, 2017 May; 26 (5): 580 - 586; C. Bates, et. al ., Striving for Gender Equality in Academic Medicine Careers: A Call to Action, ACAD MED, 2016 91: 1050 - 1052; J. Anupam, et. al ., Sex Differences in Academic Rank in US Medical Schools in 2014, J AM MED ASSN, 2015 Sep, 314 (11): 1149 - 1158; A. Bruce, et. al. Perceptions of gender - based discrimination during surgical training and practice, MED EDUC ONLINE 2015; 201: 10. 3402 / meo. v. do. 25923; A. Cochran, et. al ., Perceived gender - based barriers to careers in academic surgery, AM J SURG 2013 Aug; 206 (2); 263 - 8. 16 https: / / www. americanjournalofsurgery. com / article / S0002 - 9610 (18) 30529 - 4 / fulltext (last checked 1 / 22 / 2019) Page 15 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 • Dr. Mitchell, unlike men, had to lobby for equal wages. I 15B. OHSU reimbursed men for expenses more generously than Dr. Mitchell. q 15D. Defendants disqualified Dr. Mitchell from seeking position of division chief because she had a relationship with a man, but the man who held the position of division chief had engaged in relationships with women. I 24 (DX1) . Defendants invited all men in the division to apply for the chief job, but Defendants did not invite Dr. Mitchell to apply. I 24 (D) (2) . Defendants favored men over Dr. Mitchell in matters important advancement within academic medicine, including asking Dr. Mitchell not to apply for membership in the American Surgical Association the same year as a male employee of OHSU to improve his chances of acceptance. 1 24 (D) (3) . Asking Dr. Mitchell to resign from a position to make room for a man. 124 (D) (3) . Defendants paid or authorized payment for men to obtain master's degrees, but refused to pay for Dr. Mitchell's masters educational cost. 24 (DX5) . Defendants allowed a comparator man to retain his OHSU affiliation following termination, but refused to accommodate Dr. Mitchell's similar request. 24 (E) . Defendants ' threatened to raise false allegations that the conduct of (then - OHSU ' s) program at Salem Hospital would be medically dangerous if Dr. Mitchell continued the same work as an employee of Salem Hospital. By contrast, OHSU supported the work of a comparator man after he left OHSU. 24 (E) . • Defendants required Dr. Mitchel to display more compassion and be less businesslike than men. I 24 (F) (1) . Defendants steered women, " including Dr. Mitchell " to positions in education because of gender role stereotyping. 1 24 (F) (2) . Defendants permitted men in power to require Dr. Mitchell to justify her clinical judgment more often than men. 124 (F) (4) . Defendants permit a culture of calling women physicians, " including Dr. Mitchell " by their first names instead of " Dr. Last Name. " 124 (F) (5) . Defendants engaged in or tolerated other forms of (i) less - respectful communications to women " including Dr. Mitchell " and worse treatment of women " including Dr. Mitchell. " 24 (F) (5) . Defendants created, tolerated and enforced a system where supervisors more readily criticize and escalate perceived performance or personality issues of women, " including Dr. Mitchell. " 1 24 (G) . Paragraph 24 (H) alleges specific examples of different treatment of Dr. Mitchell compared to a man to illustrate that Defendants more readily excuse less - than professional conduct and less - than - stellar performance of men. Page 16 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 Paragraph 24 (1) alleges specific examples of defendants crediting complaints of men more than those of Dr. Mitchell. Women, " including Dr. Mitchell, " must endure sexist comments, including demeaning comments about " fucking " women. 124 (J) . Defendants tolerated Dr. Moneta (a man) having intimate relationships with multiple co workers but retaliated against Dr. Mitchell for being in a relationship with Dr. Moneta. 24 (K) . Defendants mistreated and tolerated mistreatment of Dr. Mitchell after she withheld further consent to an intimate association with Dr. Moneta. 124 (L) . Other paragraphs allege differences in treatment for women, but do not specifically allege " including Dr. Mitchell. " The court may reasonably infer that Dr. Mitchell made the allegations because she was (1) aware of the discrimination and / or (2) suffered from it, both of which contributed to the hostile environment. E. g ., 124 (M) Conclusion: Defendants failed their burden. The complaint contains sufficient hostile working environment allegations to give fair notice to defendants and suggest an entitlement to relief such that it is not unfair to require defendants to continue litigation. See, Starr v. Baca, 652 F3d 1202, 1216 (9th Cir 2011) . 7. Whether Oregon's Tort Claims Act bars some of plaintiff's claims is premature. Yet, Plaintiff's Oregon law claims are timely. A, Issue raised by Defendants. Defendants argue Oregon's Tort Claims Act bars state law claims for illegal conduct that occurred before April 19, 2018. (Ex. 1 & Def. Mo. p. 24) . B. Oregon law requires a continuing tort analysis. Oregon courts apply a continuing tort analysis to allow claims that would otherwise be time - barred. A continuing tort is based on the concept that recovery is for the cumulative effect of wrongful behavior, not for discrete elements of that conduct. Davis v. Bostick, 282 Or 667, 671 - 72, 580 P2d 544 (1978) . For the purpose of a statute of limitations, a cause of action based 2 upon a continuing tort does not " accrue " until the conduct culminates to cause injury. Barrington ex rel. Barrington v. Sandberg, 164 Or App 292, 298, 991 P2d 1071 (1999) . The Page 17 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 continuing tort analysis applies to tort claims notice, too. Id. C. Analysis. 1. Discrimination, Hostile Environment, and Discharge Claims Paragraph 47 of the Second Amended Complaints alleges constructive discharge on June 30, 2018, Dr. Mitchell's last day of work. This date is within 180 days of the date Defendants received the Tort Claims Notice. The key allegations follow: 46. Shortly before the termination of employment on June 30, 2018, Dr. Hunter mentioned he might be willing to retain Dr. Mitchell. When Dr. Mitchell reiterated her gender equality concerns, Dr. Hunter refused to discuss them. 47. Defendants perfected their constructive discharge of Dr. Mitchell as of June 30, 2018. They accomplished constructive discharge through severe and pervasive discrimination and unlawful retaliation that had occurred for years. The cumulative effect was to overcome the motivation of a competent, diligent and reasonable professional of Dr. Mitchell's caliber to remain employed by OHSU under the supervision and control of the current regime. 2. Wage claims. Plaintiff has Oregon law claims for discriminatory wages paid after April 19, 2018. D. Conclusion: Oregon law claims are timely. Because the key event - constructive discharge - occurred within the period of limitations and because Oregon recognizes the continuing violation theory, the court should deny Defendants ' Twigbal motion regarding timeliness under Oregon law. 8. Aiders and Abettors may be liable, and Dismissal would be premature. " It is an unlawful employment practice: . . . For any person, whether an employer or an Orali employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so. " ORS 659A. 030 (1) (g) . Page 18 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 For plaintiff, without key discovery, we are looking at a " black box. " We do not know what went on behind closed doors among individual defendants and others at OHSU during the relevant time. Consequently, our allegations are thin. After discovery, plaintiff might possibly drop claims and elect remedies. However, before discovery, I feel compelled to keep alive all viable theories in case discovery reveals facts supporting one legal theory over another. It is inappropriate to force plaintiff to elect remedies in over & response to Twigbal motions when the key facts are uniquely in possession of defendants, and defendants refuse to share those facts; defense counsel are withholding discovery until the court decides these motions. Regarding Dr. Hunter, the complaint alleges he made statements to Dr. Mitchell that she perceived as a retaliatory threat in June 2018. | 24E. Other allegations are not specific with respect to dates or persons involved. Regarding Dr. Azarow, the complaint conduct Dr. Mitchell perceived as retaliatory in dlo June 2018. 124E. Other allegations are not specific with respect to dates or persons involved. Regarding Dr. Moneta, the complaint lacks any specific allegations labelled with dates within the period of Oregon Tort Claims notice. Other allegations are not specific with respect to dates or persons involved. Given the procedural posture and reading the complaint in its entirety, a dismissal with prejudice would be premature. To the extent the court grants a dismissal from ORS 659A. 030 (1) (g) to one or more of the individual defendants, plaintiff asks the court to order * mo defendants to proceed with discovery and grant plaintiff leave to replead. Page 19 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 9. Please deny all other motions because defendants violated LR 7 - 1. Defendant did not confer regarding most of the motions it asserts, and the court should deny them. (Ex. 1) . With respect to dispositive motions, LR 7 - 1 requires the moving party to certify that it discussed and was unable to resolve " each claim, defense, or issue that is the subject of the proposed motion. " The court may deny any motion for failure to do so. On its face, defense counsel's certification falls short. He does not certify that he made a good faith effort to resolve the disputes and was unable to do so. Defense counsel's E - mail confirming the topics of conferral prove he did not confer on each of the issues presented to the court. (Ex. 1) . It is unfair to the court and plaintiff's counsel to require us to work on motions over which defendants did not confer. For example, defendants moved to dismiss Equal Pay Act claims against individual defendants " because there are no facts alleged to show that they are ' employers. ' " (Def. Mo. p. 7) . If defendants had conferred, I would have pointed out the complaint alleges OHSU is the employer: " OHSU hired Dr. Mitchell " 3, " OHSU employed males " 913, and " OHSU paid women " 915. (emphasis added) . We acknowledge the use of the plural " defendants " in some paragraphs and apologize for any confusion, which would have been fixed had defendants followed the law and conferred on each dispositive motion as required by LR 7 - 1. The court should deny all remaining motions because defendants broke the law requiring a good faith effort to resolve the disputes before asking the court to resolve them. 10. Conclusion. Please deny the motions. If the court should grant one or more of the motions, Plaintiff seeks leave to amend. Page 20 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS 1 Plaintiff questions Defendants ' use of Twigbal motions against the entirety of the Second Amended Complaint - - without compliance with LR 7 - 1 - - to withhold discovery until the court rules. We ask the court to be generous in setting discovery deadlines to account for the delay between our request for records in October 2018 and whenever OHSU decides to produce key records Dr. Mitchell needs to prove her case. If the court agrees that some of the OHSU's motions are improper, then we ask the court to award attorney fees for responding to them. Date: January 27, 2019 Merrick Law, LLC. A By: ' Jeffrey S. Merrick, OSB # 842987 Trial Attorney 811 SW Naito Parkway, Suite 420 Portland, OR 97204 503 - 665 - 4234 jmerrick @ jeffmerrick. com Page 21 of 21 | PLAINTIFF'S OPPOSITION TO DEFENDANTS ' MOTIONS TO DISMISS