Ettner v. City of Medford

963 P.2d 149, 155 Or. App. 435, 1998 Ore. App. LEXIS 1330

Opinions

HASELTON, J.

Plaintiff appeals, assigning error to the allowance of summary judgment against her claims for employment discrimination, ORS chapter 659, which arise from her termination as a probationary firefighter with defendant City of Medford. The trial court determined that plaintiffs action was precluded because the exclusive means to challenge the alleged unlawful discharge was writ of review. ORS 34.102. We conclude that writ of review was not available and, thus, that it could not be “exclusive.” Accordingly, we reverse and remand.

In August 1994, plaintiff began working as a probationary firefighter for defendant. On September 29, 1995, defendant’s fire chief issued a letter terminating plaintiff from the fire department because she twice had failed a physical “task performance” test. In June 1996, plaintiff brought this action, alleging that the discharge was based on gender or a perceived disability and was, therefore, an unlawful discriminatory employment practice under ORS 659.030 and ORS 659.425(1)(c) (1989).

Defendant answered, alleging as an affirmative defense:

“The decision to terminate the plaintiffs employment was a decision by the City of Medford, a municipal corporation, while it was acting in a judicial or quasi-judicial capacity and it was made in the transaction of municipal corporation business; therefore, plaintiffs exclusive remedy for her claims was by way of writ of review pursuant to ORS 34.010 to 34.100, and not otherwise; and because plaintiff has failed to file a writ of review within the appropriate time limits, plaintiffs claims are now barred.”

Defendant subsequently moved for summary judgment on that basis, and the trial court granted that motion.

On appeal, plaintiff makes two alternative arguments: (1) Writ of review is not an available means of challenging the discharge decision; and (2) even if writ of review is available, it is not exclusive. We agree with plaintiffs first argument and, consequently, do not address the second.

Two statutes are germane. First, ORS 34.040(1) provides:

“The writ [of review] shall be allowed in all cases in which a substantial interest of a plaintiff has been injured and an inferior court including an officer or tribunal other than an agency as defined in ORS 183.310(1) in the exercise of judicial or quasi-judicial functions appears to have:

“(a) Exceeded its jurisdiction;

“(b) Failed to follow the procedure applicable to the matter before it;

“(c) Made a finding or order not supported by substantial evidence in the whole record;

“(d) Improperly construed the applicable law; or

“(e) Rendered a decision that is unconstitutional.”

Second, ORS 34.102(2) provides:

“Except for [inapposite exception], the decisions of the governing body of a municipal corporation acting in a judicial or quasi-judicial capacity and made in the transaction of municipal corporation business shall be reviewed only as provided in ORS 34.010 to 34.100, and not otherwise.”¹

The writ of review statutes further provide that, upon issuance of the writ pursuant to ORS 34.040, the court, officer, or tribunal whose decision “is sought to be reviewed” shall return the writ with a certified copy of the record or proceedings. ORS 34.060. Thereafter, “[u]pon the review, the court shall have power to affirm, modify, reverse or annul the decision or determination reviewed, and if necessary, to award restitution to the plaintiff, or to direct the inferior court, officer, or tribunal to proceed in the matter reviewed according to its decision.” ORS 34.100. See generally Ronald A. Johnston, The Writ of Review in Oregon: A Legal Analysis for the Practicing Attorney, 13 Willamette J 417 (1977).

Here, even assuming without deciding that the discharge decision was a “quasi-judicial” decision, plaintiffs employment discrimination complaint does not seek to challenge that decision on any of the grounds specified in ORS 34.040(1)(a)-(e). In particular, there are no allegations pertaining to lack of jurisdiction, failure to follow applicable procedures, or rendition of findings or orders contrary to substantial evidence. Moreover, although plaintiff alleges that defendant violated the law, she does not allege that defendant “improperly construed the applicable law.” Finally, although employment discrimination, and particularly gender-based discrimination, may have constitutional implications in some circumstances, plaintiffs complaint does not allege any constitutional violation. Rather, she merely alleges statutory violations, actionable under chapter 659.

Because none of the “triggers” for the issuance of the writ is present, writ of review is not available as a means for challenging the discharge decision. Because writ of review is not available, the exclusivity provisions of ORS 34.102(2) are inapposite.²

Reversed and remanded.

1

Arguably, ORS 34.020, pertaining to review of decisions by any “officer” is the more appropriate referrent because the discharge decision was made, at least initially, by the fire chief. Nevertheless, defendant has asserted throughout that the City, in fact, made the decision. In all writs in these circumstances, the analysis is identical.

2

Defendant relies on Koch v. City of Portland, 306 Or 444,760 P2d 252 (1988). In Koch, which involved a challenge to the Portland Police Bureau’s imposition of discipline for violation of a Bureau rule, the court merely concluded that the decision was “quasi-judicial” and did not purport to address the application of any of the five “triggers” specified in ORS 34.040 (1)(a)-(e). Indeed, unlike in this case, the plaintiff in Koch explicitly alleged a constitutional violation—viz., that the underlying rule impermissibly “infringe[dl on his constitutionally protected right to speak freely.” Koch v. City of Portland, 88 Or App 335, 337, 745 P2d 435 (1987), rev’d 306 Or 444, 760 P2d 252 (1988). See also Shockey v. City of Portland, 313 Or 414, 421-22, 837 P2d 505 (1992) (addressing Koch). Similarly, in Decker v. Clark, 95 Or App 320, 769 P2d 228 (1989), we did not address the applicability of the statutory “triggers,” but, as in Koch, the plaintiffs in that case explicitly alleged that their terminations violated their rights under the Oregon and United States Constitutions. 95 Or App at 322.