Moore v. Portland Public Schools

391

Argued and submitted October 5, 2021; dismissal of Moore plaintiffs’ First

Claim, Count 2, for battery that occurred within the notice period reversed;

dismissal of Demma’s First Claim, Count 2, for battery reversed; dismissal

of Moore plaintiffs’ Second Claim for hostile work environment that occurred

within the notice period reversed; dismissal of Conley’s Fourth Claim for dis-

ability discrimination reversed; remanded for further proceedings; otherwise

affirmed September 27, 2023

Joyce MOORE,

an individual;

Virginia Ferrer-Burgett, an individual;

Cassie Gamez, an individual;

Arline Weaver, an individual;

Sarah Conley, an individual;

Debra Meskimen, an individual;

Angela Gonci, an individual;

and Julie Manzella, an individual,

Plaintiffs-Appellants,

v.

PORTLAND PUBLIC SCHOOLS,

Public School District #1 a public entity;

Mary Pearson, an individual;

Michael Laframboise, an individual;

Theresa Stubbs, an individual;

and Andres Porter-Lopez, an individual,

Defendants-Respondents,

and

Kristen WEILER,

Defendant.

Multnomah County Circuit Court

18CV49922; A173665 (Control)

Theresa DEMMA,

an individual,

Plaintiff-Appellant,

v.

PORTLAND PUBLIC SCHOOLS,

Public School District #1, a public entity;

Reiko Williams, an individual;

Jon Williams, an individual;

Teresa Stubbs, an individual;

392 Moore v. Portland Public Schools

Karly Lefferts, an individual;

and Michael Conn, an individual,

Defendants-Respondents.

Multnomah County Circuit Court

19CV26384; A174162

537 P3d 544

This consolidated appeal arises out of two cases, Moore et al. v. Portland

Public Schools et al. (Case No. 18CV49922) and Demma v. Portland Public Schools

et al. (Case No. 19CV26384). Each case was brought by plaintiffs who worked

as paraeducators in special education classrooms against defendant Portland

Public Schools (PPS) and several individual defendants who, like plaintiffs, are

employed by PPS. Plaintiffs appeal the final judgments, with plaintiffs in Moore

assigning as error (1) the dismissal of a portion of their claims for failure to pro-

vide adequate formal tort claims notices; (2) the dismissal of battery claims for

failure to state a claim against PPS; (3) the dismissal of battery and disability

discrimination claims for timeliness; (4) the dismissal of hostile work environ-

ment claims based on sexual harassment for failure to state a claim; and (5)

the dismissal of the individual defendants and substitution of PPS as the sole

defendant. Plaintiff Demma challenges only the dismissal of her battery claim.

Held: The trial court did not err in finding that the tort claims notices did not

specify the places and circumstances of the alleged torts, a requirement in ORS

30.275 for notice of claims against a public body. For that reason, claims of tor-

tious conduct that occurred more than 180 days before each complaint was filed

were untimely. ORS 30.275(2) and (3)(c). The trial court erred in concluding that

plaintiffs failed to state battery claims for which PPS could be held liable; a the-

ory of direct liability applied in this case. For that reason, the dismissal of bat-

tery claims that fell within the notice period was also erroneous. Dismissal of

the disability discrimination claim was erroneous because plaintiffs’ allegations

created a question of fact whether the claim accrued within the notice period.

The trial court erred in concluding that plaintiffs did not allege ultimate facts

establishing a claim of sex discrimination constituting a hostile work environ-

ment; harassment “based on sex” is not precluded by allegations that individuals

of multiple sexes experience the same harassment. Finally, the trial court erred

in dismissing the individual defendants because plaintiffs made sufficient alle-

gations that, if true, allow a factfinder to infer that defendants’ conduct “occurred

substantially [outside] the time and space limits authorized by the employment,”

that the conduct was not “of a kind which the employee was hired to perform,” and

that defendants’ conduct was a cause of plaintiffs’ alleged injuries. Chesterman v.

Barmon, 305 Or 439, 442, 753 P2d 404 (1988).

Dismissal of Moore plaintiffs’ First Claim, Count 2, for battery that occurred

within the notice period reversed; dismissal of Demma’s First Claim, Count 2,

for battery reversed; dismissal of Moore plaintiffs’ Second Claim for hostile

work environment that occurred within the notice period reversed; dismissal of

Conley’s Fourth Claim for disability discrimination reversed; remanded for fur-

ther proceedings; otherwise affirmed.

Leslie G. Bottomly, Judge. (Limited Judgment June 12,

2020)

Cite as 328 Or App 391 (2023) 393

Nan G. Waller, Judge. (Limited Judgment February 13,

2020)

Rebecca Cambreleng argued the cause for appellants.

Also on the briefs were Crispin Marton Cambreleng and

Alana G. I. Simmons and The Dalton Law Firm.

Michael Porter argued the cause for respondents. Also

on the brief were Ivan Resendiz Gutierrez and Miller Nash

Graham & Dunn LLP.

Caitlin Mitchell and Johnson Johnson Lucas & Middleton

PC and Elizabeth C. Savage and Karmel Savage, PC, filed

the brief amicus curiae for Oregon Trial Lawyers Association.

J. Aaron Landau, Sharon A. Rudnick and Harrang Long

Gray Rudnick PC filed the brief amicus curiae for Oregon

School Boards Association.

Janet M. Schroer, Ruth A. Casby and Hart Wagner LLP

filed the brief amici curiae for League of Oregon Cities and

Association of Oregon Counties.

Before Egan, Presiding Judge, and Lagesen, Chief Judge,

and Nakamoto, Senior Judge.*

NAKAMOTO, S. J.

Dismissal of Moore plaintiffs’ First Claim, Count 2, for bat-

tery that occurred within the notice period reversed; dismissal

of Demma’s First Claim, Count 2, for battery reversed; dismissal

of Moore plaintiffs’ Second Claim for hostile work environment

that occurred within the notice period reversed; dismissal of

Conley’s Fourth Claim for disability discrimination reversed;

remanded for further proceedings; otherwise affirmed.

______________

* Lagesen, C. J., vice DeHoog, J. pro tempore.; Nakamoto, S. J., vice DeVore, S. J.

394 Moore v. Portland Public Schools

NAKAMOTO, S. J.

This consolidated appeal arises out of two cases,

Moore et al. v. PPS et al. (Case No. 18CV49922) and Demma

v. PPS et al. (Case No. 19CV26384), brought by plaintiffs who

worked as paraeducators in special education classrooms

within defendant Portland Public Schools (PPS). Asserting

a range of claims, plaintiffs alleged that they repeatedly and

regularly were subjected to physical assaults, and in some

instances sexual assaults, by students, but, despite com-

plaints and entreaties to PPS and various individual employ-

ees of PPS named as defendants, defendants failed to correct

or ameliorate their working conditions.

In each case, the trial court dismissed the indi-

vidual defendants under ORS 30.265, the provision of the

Oregon Tort Claims Act (OTCA) that provides for a “sole

cause of action” against a public body for the torts of its

employees committed within the course and scope of their

employment. The trial courts then dismissed most of plain-

tiffs’ claims—including claims of employment discrimina-

tion and claims of battery—either because the claims were

untimely or because plaintiffs had failed to state a claim

upon which relief can be granted. For the reasons that

follow, we conclude that the trial court in Moore erred in

dismissing Conley’s disability discrimination claim and

plaintiffs’ sex discrimination claims based on a hostile work

environment theory and by substituting PPS for the individ-

ual defendants. We further conclude that both trial courts

in Moore and Demma erred by dismissing plaintiffs’ claims

that PPS is directly liable for battery. We otherwise affirm.

I. BACKGROUND

We begin by describing procedural background

facts for each case. We later discuss some of plaintiffs’ alle-

gations in more detail when analyzing their assignments

of error as to specific claims for employment discrimination

and for battery.

A. Moore et al. v. PPS et al.

Plaintiffs in Moore are eight female paraeducators

who were employed by PPS and worked in special education

classrooms. During the time period relevant to the claims,

Cite as 328 Or App 391 (2023) 395

plaintiffs Moore and Ferrer-Burgett worked at Woodlawn

Elementary School. The remaining plaintiffs, Conley, Gonci,

Meskimen, Manzella, Weaver, and Gamez, worked at either

Sunnyside Environmental School or Buckman Elementary

School.

On May 21, 2018, Moore, through her attorney, sent

an “ORS 30.275 Tort Claim Notice” to PPS. In it, she noti-

fied PPS of her intent to file one or more claims for damages

against PPS “and/or one or more of its officers, employees, or

agents.” The notice stated, in relevant part:

“Ms. Moore’s claims include negligence, intentional

infliction of emotional distress, discrimination, retaliation,

interference with workers’ compensation, and other viola-

tions of state law.

“Ms. Moore has been a loyal district employee for over

26 years. In the last few years she has been the victim of

appalling behavior by [PPS] including retaliation against

her for use of worker’s compensation, subjecting her to daily

sexual and physical assault and battery without recourse

or ways to report the attacks or to create a safe space, for

racial discrimination, and for knowingly, deliberately, and

with wanton and reckless disregard putting her in situa-

tions where there is a high likelihood of bodily injury.”

The same day, Ferrer-Burgett, through her attor-

ney, sent a similar tort claim notice to PPS. It stated, in

relevant part:

“Ms. Ferrer-Burgett’s claims include negligence, inten-

tional infliction of emotional distress, and other violations

of state law.

“Ms. Ferrer-Burgett has been a loyal district employee

and has over 20 years of experience working with children.

But in the last 2 years while working at Woodlawn she

has been the victim of appalling behavior by [PPS] includ-

ing daily sexual and physical assault and battery without

recourse or ways to report the attacks or to create a safe

space, and for knowingly, deliberately, and with wanton

and reckless disregard putting her in situations where

there is a high likelihood of bodily injury.”

Nearly six months later, on November 1, 2018,

Moore and Ferrer-Burgett filed this action against PPS

396 Moore v. Portland Public Schools

and two individual defendants, the principal of Woodlawn

Elementary School and a risk management employee for

PPS. Moore and Ferrer-Burgett alleged that “they were

subject to daily assaults and battery to their persons by

students, including sexual assaults and battery,” and they

asserted multiple claims for relief.

On December 10, 2018, the remaining plaintiffs,

through their attorneys, sent a tort claim notice to PPS. The

notice stated, in relevant part:

“The potential claims include general tort claims for

assault and battery, negligence, hostile work environment,

intentional infliction of emotional distress, retaliation and

other violations of state and/or federal law.

“Our clients, and many like them, continue to be the vic-

tims of appalling behavior by [PPS] including intentionally

subjecting them to daily sexual and physical assaults and

battery and for knowingly, deliberately, and with wanton

and reckless disregard putting them in situations where

there is a high likelihood of bodily injury.”

On January 28, 2019, plaintiffs filed a first amended

complaint in which they amended claims asserted by Moore

and Ferrer-Burgett and added claims by the other plaintiffs.

The amended complaint also dropped the risk management

employee as a defendant and added three other individ-

ual defendants: the senior director of special education for

PPS and the principal and vice-principal of PPS’s Pioneer

Program.

In the amended complaint, Moore and Ferrer-

Burgett again alleged that in the classrooms where they

worked, “they were subject to daily assaults and battery to

their persons by students, including sexual assaults and

battery.” Gamez and Weaver alleged that in the classrooms

where they worked, they “were repeatedly and consistently

assaulted by students over the years, and requested help

from administrators at every turn.” Conley, Meskimen,

Gonci, and Manzella alleged that in their classrooms, they

faced ongoing physical assaults from one particular student,

identified in the complaint as “Student B.” In addition to

being physically violent, student B, they alleged, acted out

sexually toward Conley, Meskimen, Gonci, and Manzella.

Cite as 328 Or App 391 (2023) 397

Several plaintiffs alleged that they experienced similar

assaultive conduct by two other specific students, identified

as “Student A” and “Student C,” as well as from other stu-

dents. Based on those facts, all plaintiffs in Moore alleged,

among other claims, (1) a claim for battery against PPS and

(2) an unlawful employment practices claim under ORS

659A.030 based on a hostile work environment against all

defendants.

Defendants moved to dismiss under former ORCP

21 A(1) (2018), renumbered as ORCP 21 A(1)(a) (2022), former

ORCP 21 A(8) (2018), renumbered as ORCP 21 A(1)(h) (2022),

and former ORCP 21 A(9) (2018), renumbered as ORCP 21

A(1)(i) (2022). Pertinent to this appeal, defendants asserted

that (1) ORS 30.265(3) required dismissal of the individual

defendants, because the complaint established that their

actions were within the scope of their employment with PPS

and, as a result, plaintiffs’ sole cause of action was against

PPS; (2) plaintiffs’ tort claims notices failed to identify the

“time, place, and circumstances giving rise to their claims,”

which ORS 30.275(4) mandates, requiring dismissal of any

claims based on conduct occurring more than 180 days

before the filing of the complaint; (3) plaintiffs failed to state

a claim for a hostile work environment under ORS 659A.030;

and (4) plaintiffs failed to state a claim for battery because

the gravamen of their claim was that PPS did not respond to

plaintiffs’ complaints that students had committed battery

against them, which is insufficient to establish the elements

of the intentional tort.

The trial court granted the motions. First, it granted

the motion to dismiss the individual defendants “because

[PPS] is the only proper defendant in accordance with the

sole cause of action provisions of the [Oregon Tort Claims

Act (OTCA)].”

Second, it determined that the tort claims notices

failed to adequately describe the time, place, and cir-

cumstances underlying plaintiffs’ claims as required by

ORS 30.275(4)(b). The court concluded that it consequently

“lacked subject matter jurisdiction” over claims that arose

“more than 180 days prior to the filing of the November 1,

2018 complaint for Plaintiffs Moore and Ferrer-Burgett, and

398 Moore v. Portland Public Schools

180 prior to the filing of the January 28, 2019 complaint for

Plaintiffs Conley, Gamez, Gonci, Manzella, Meskimen, and

Weaver.” The trial court’s determination had the effect of

time-limiting the claims because plaintiffs only satisfied the

notice requirement under the OTCA when they later com-

menced their action. See ORS 30.275(3)(c). Plaintiffs Moore

and Ferrer-Burgett sued on November 1, 2018, and so their

claims had to be based on events occurring within 180 days

before they filed the complaint, which is on or after May

5, 2018. For the six other plaintiffs in Moore, who sued on

January 28, 2019, their claims had to be based on events

occurring on or after August 1, 2018.

Third, the court dismissed the claim based on a hos-

tile work environment in its entirety. The court ruled that,

even for allegations that arose within the 180-day period

before the claims were asserted in the complaint, plaintiffs

“failed to state ultimate facts sufficient to constitute a hos-

tile work environment claim.”

Fourth, the trial court dismissed the battery claim,

concluding that the allegations were not sufficient to hold PPS

liable for batteries committed by students. The court reasoned

that the claim failed because plaintiffs had not alleged facts

that would show that PPS “intentionally assisted, directed,

[or] had knowledge that any student intended to engage in

offensive conduct towards the plaintiffs” and had not alleged

facts to show how “the offensive conduct of the students bene-

fited” PPS. The court ruled initially that it would allow plain-

tiffs leave to amend their complaint but, ultimately, entered a

limited judgment dismissing the battery and the hostile work

environment claims and dismissing the individual defen-

dants from the action. Plaintiffs appealed.

B. Demma v. PPS et al.

Demma taught in a special education classroom

at PPS’s Sabin Elementary School and, later, in a special

education classroom at Jason Lee Elementary School. On

January 7, 2019, through her attorney, Demma sent a tort

claim notice to PPS.

On June 14, 2019, Demma filed her action, naming

PPS and five individuals as defendants. Consistent with her

Cite as 328 Or App 391 (2023) 399

tort claims notice, Demma alleged that she had been subject

to ongoing physical violence and attacks by students at both

schools where she worked since the beginning of the 2018-19

school year. Demma also asserted multiple claims, including a

claim for battery based on the assaultive conduct by students.

As they did in the Moore case, defendants filed a

motion to dismiss and reiterated the same challenges to

Demma’s inclusion of individual defendants in the action,

to the adequacy of her tort claims notice, and to the suffi-

ciency of her claims. The trial court rejected PPS’s conten-

tion that Demma’s tort claims notice inadequately described

the time, place, and circumstances underlying her claim.

Otherwise, like the trial court in Moore, the court dismissed

the individual defendants and dismissed Demma’s hostile

work environment and battery claims. On Demma’s battery

claim, the trial court ruled that the allegations were insuf-

ficient to “impute the intentional tort to the Portland Public

Schools” and that Demma failed “to state ultimate facts suf-

ficient to constitute a claim.”

C. Consolidated Appeal

The two cases were consolidated for appeal. In their

opening brief, the Moore plaintiffs raise six assignments of

error; Demma joins only in the second assignment of error,

challenging the dismissal of her battery claim.

The Moore plaintiffs assign error to the trial court’s

rulings as follows:

• granting defendants’ motion to dismiss a portion of

all of the Moore plaintiffs’ claims for failure to pro-

vide adequate formal tort claims notices (third and

fourth assignments);

• granting defendants’ motions to dismiss plaintiffs’

battery claims for failure to state a claim (second

assignment), which Demma joins;

• granting defendants’ motion to dismiss plaintiffs’

claims for battery and Conley’s claim for disability

discrimination on the ground that plaintiffs alleged

no actionable conduct within 180 days preceding

the filing of the complaints (sixth assignment);

400 Moore v. Portland Public Schools

• granting defendants’ motion for dismissal of the

hostile work environment claims for failure to state

a claim (first assignment); and

• dismissing the individual defendants and substitut-

ing PPS as the sole defendant by granting defen-

dants’ motion (fifth assignment).

II. ANALYSIS

A. The Sufficiency of the Tort Claim Notices

We begin with the third and fourth assignments

of error concerning the tort claims notices by the Moore

plaintiffs. Under the OTCA, a party may bring a tort claim

against a public body or an officer or employee of a public

body,1 but the party must give advance notice of the par-

ty’s intent to assert the claim, as provided in ORS 30.275.

See ORS 30.275(1) (no such action may be maintained

“unless notice of claim is given as required by this section”).

For torts other than wrongful death, the party must give

the public body notice of claim “within 180 days after the

alleged loss or injury.” ORS 30.275(2). The required notice of

claim may be satisfied in several different ways, including

by giving a formal notice of claim, ORS 30.275(3)(a), and by

“[c]ommencement of an action on the claim by or on behalf of

the claimant within the applicable period of time provided

in subsection (2),” ORS 30.275(3)(c).

The substantive requirements for a formal tort claims

notice are found in ORS 30.275(4). Plaintiffs bear “the burden

of proving that notice of claim was given as required.” ORS

30.275(7).2 In this case, the trial court in Moore determined

that the substance of plaintiffs’ formal tort claims notices was

deficient for failure to provide a “description of the time, place

and circumstances giving rise to the claim, so far as known to

the claimant,” as required by ORS 30.275(4)(b).

1

There is no dispute that PPS is a public body. See ORS 30.260(4)(a) (defining

a “public body” for purposes of ORS 30.275 by reference to ORS 174.109, which

defines a “public body” as “state government bodies, local government bodies and

special government bodies”).

2

We reject plaintiffs’ contention in their reply brief that the burden of proof

refers to a plaintiff’s burden of proof in a legal action and does not apply to the

sufficiency of formal tort claim notices. That position flies in the face of the plain

meaning of subsection (7).

Cite as 328 Or App 391 (2023) 401

The Moore plaintiffs challenge the trial court’s con-

clusion that their formal tort claims notices did not comply

with ORS 30.275(4)(b) and its consequent ruling dismissing

their claims to the extent that those claims were based on

conduct occurring more than 180 days before the filing of

their respective complaints. We first reject plaintiffs’ third

assignment, in which they contend that the trial court was

not authorized to resolve the issue of the adequacy of their

tort claims notices on a motion to dismiss.

Relying primarily on Voth v. Smith, 188 Or App

59, 69 P3d 1274 (2003), plaintiffs argue that the trial court

was required to wait until summary judgment to resolve

whether their tort claims notices were sufficiently detailed.

Voth, however, arose in a different procedural posture and

is not on point. In that case, the trial court dismissed the

complaint under ORCP 21 based on its determination that

the plaintiff “failed to allege timely tort claim notice.” Id. at

61 (emphasis added). On appeal, the defendants conceded

that the plaintiff’s allegations were adequate to withstand

a motion to dismiss and that the adequacy of the plaintiff’s

tort claim notice should be evaluated later on summary

judgment. Id. We accepted the concession without consid-

ering whether one of the other types of motions to dismiss

authorized by ORCP 21 would supply a mechanism for

assessing the adequacy of a tort claims notice. Voth did not

require the trial court to defer ruling on the adequacy of the

tort claims notices.

Unlike in Voth, PPS moved to dismiss under former

ORCP 21 A(1) on the ground that the court lacked subject

matter jurisdiction because of plaintiffs’ failure to pro-

vide adequate tort claims notice. See Curzi v. Oregon State

Lottery, 286 Or App 254, 265, 398 P3d 977, rev den, 362

Or 175 (2017) (failure to give adequate tort claims notice

deprives a court of subject matter jurisdiction). A challenge

to subject matter jurisdiction may be raised and resolved

through a motion to dismiss under former ORCP 21 A(1)(a):

“The following defenses may, at the option of the pleader,

be made by motion to dismiss: * * * lack of jurisdiction over

the subject matter.” Moreover, when the issue of subject

matter jurisdiction is raised by way of a motion to dismiss

402 Moore v. Portland Public Schools

under former ORCP 21 A(1)(a), the trial court may consider

evidence and resolve disputes of fact, so long as it does not

resolve factual disputes relating to the merits of the under-

lying claims. Munson v. Valley Energy Investment Fund, 264

Or App 679, 695, 333 P3d 1102 (2014). As a procedural mat-

ter, the trial court properly proceeded to the merits of defen-

dants’ challenge to the court’s subject matter jurisdiction

through their motion to dismiss, and so we reject plaintiffs’

third assignment of error.

In their fourth assignment of error, plaintiffs assert

that the trial court erroneously concluded that the Moore

plaintiffs’ tort claims notices did not supply “[a] descrip-

tion of the time, place and circumstances giving rise to the

claim, so far as known to the claimant,” as required under

ORS 30.275(4)(b). The trial court in Moore agreed with

defendants that each of the notices was deficient by describ-

ing only generalized claims about the particular plaintiff’s

experience of assault by students, reports and complaints

to defendants, and inaction by defendants, and not infor-

mation about the specific time, place, and circumstances of

each incident or even groups of incidents underlying their

allegations. Defendants argue that the trial court correctly

observed that such generalized information was insuffi-

cient to give defendants the opportunity to investigate and

address the claims, one of the purposes of the tort claims

notice.

Plaintiffs argue that their notices “substantially

complied” with the statutory requirements by providing

defendants with “enough relevant information for the time,

place, and circumstances” to undertake an investigation.

Citing Urban Renewal Agency v. Lackey, 275 Or 35, 40, 549

P2d 657 (1976), plaintiffs argue that substantial compliance

is all that is required. They also argue that sufficiency of a

tort claims notice “must be determined with the object of the

statute in mind, and technically deficient claims should not

be barred where the purpose of the statute is served.” Brown

v. Portland School Dist. #1, 291 Or 77, 81, 628 P2d 1183

(1981). In an amicus brief, the League of Oregon Cities (LOC)

counters that “substantial compliance” is only intended

to protect would-be plaintiffs from “technical traps” that

Cite as 328 Or App 391 (2023) 403

make providing notice and filing claims too onerous, such

as the wrong mailing method that the claimant employed

in Brown. In LOC’s view, the requirement to provide infor-

mation regarding time, place, and circumstances, “so far as

known to the claimant,” is not such a technical requirement.

Assuming without deciding that the standard

is substantial compliance with the requirements of ORS

30.275(4)(b), the Moore plaintiffs’ tort claim notices still fell

short. As all parties acknowledge, an important purpose

of the notice requirement is “to give the public body timely

notice of the tort and allow its officers an opportunity to

investigate the matters promptly and ascertain all the nec-

essary facts.” Urban Renewal, 275 Or at 41. Given that pur-

pose, at a minimum, a tort claims notice must supply suffi-

cient information about an alleged tort to “allow the public

body an opportunity to investigate the alleged tort promptly

and ascertain the facts before they become stale.” Humphrey

v. OHSU, 286 Or App 344, 352, 398 P3d 360 (2017). Here,

none of the tort claims notices in Moore provided sufficient

information for that purpose.

Each notice named the relevant plaintiff(s) and

indicated that “a claim for damages is, or will be, asserted

against Portland Public Schools and/or one or more of its

officers, employees, or agents.” The notices list the gen-

eral “potential claims” that may be brought and indicate

that those claims are based on the “appalling behavior by

Portland Public Schools,” including, for example, subjecting

plaintiffs “to daily sexual and physical assault and battery

without recourse or ways to report the attacks or to create

a safe space.” As for the time or times when that was occur-

ring, the notices did not pinpoint specific days, but specified

that assaults occurred “daily.” Ferrer-Burgett’s notice also

described that the events occurred over the past two years

and Moore’s notice stated that the events occurred over sev-

eral years. Those specifications provided the timeframe for

defendants and met a substantial compliance standard,

considering that plaintiffs notified defendants of “daily”

assaults and defendants, by virtue of the OTCA, knew that

plaintiffs had to give notice within 180 days after the tort

occurred.

404 Moore v. Portland Public Schools

However, plaintiffs’ tort claim notices failed to spec-

ify the places and circumstances of the alleged torts. Only

the tort claims notice from Ferrer-Burgett indicated which

school or schools were involved, and none refer to student

conduct or any specific event or action taken by anyone. A

reader of the notices would not be able to discern the per-

petrator or perpetrators of the alleged assaults, the physi-

cal locations of the alleged assaults, and who from PPS was

involved in subjecting plaintiffs to the students’ assaults.

Apart from giving defendants information about who they

might contact to learn more about the basis for the clams,

the tort claims notices did not provide sufficient facts about

the places and circumstances of the underlying events to

give defendants “an opportunity to investigate the alleged

tort promptly and ascertain the facts.” Humphrey, 286

Or App at 352. Although a tort claims notice is not designed

to be a comprehensive account of events on which a claim is

based, the legislature intended the statutory requirements

to be met: “No action * * * shall be maintained unless notice

of claim is given as required by this section.” ORS 30.275(1).

Because the formal notice requirements were not

met in Moore, defendants did not receive advance notice,

for purposes of the 180-day notice requirement, until plain-

tiffs commenced this action. See ORS 30.275(1) (requiring

advance notice of tort claims); ORS 30.275(2) (providing

180-day statute of limitations); ORS 30.275(3) (permitting

notice by, among other things, a tort claim notice or com-

mencement of an action). We affirm the trial court’s ruling

granting defendants’ motion to dismiss claims based on con-

duct occurring more than 180 days before the filing of the

complaint, based on inadequacy of the formal tort claims

notices by plaintiffs in Moore.

B. Whether Plaintiffs Stated Claims for Battery Against

PPS

We turn to plaintiffs’ contention that they stated

battery claims against PPS. Our review is for legal error.

Bohr v. Tillamook County Creamery Assn., 321 Or App 213,

217, 516 P3d 284 (2022). In conducting that review, we accept

the allegations in the complaint as true, as well as any rea-

sonable inferences that can be drawn from those allegations,

Cite as 328 Or App 391 (2023) 405

viewing those allegations and inferences in the light most

favorable to plaintiffs, the non-moving parties. Id.

To establish a civil battery claim in Oregon, the

plaintiff must prove that the act that brought about the

harm is “an act of volition on the actor’s part, and the actor

must have intended to bring about a harmful or offensive

contact or put the other party in apprehension thereof.” Doe

v. Lake Oswego School District, 353 Or 321, 329, 297 P3d

1287 (2013). Harmful contact “includes physical impair-

ment, physical pain, or illness.” Id. at 330. Offensive contact

is “contact that offends a reasonable sense of personal dig-

nity.” Id. Plaintiffs in both cases contend that PPS is liable

for battery committed by third-party actors, the students.

Plaintiffs in Moore alleged that “PPS intended to

cause a harmful or offensive physical contact or cause an

apprehension that harmful or offensive physical contact

would occur”; “PPS knew” that plaintiffs “were the vic-

tims of assault and battery to their persons on an ongoing

basis due to their constant reporting to school administra-

tors and the district administration”; “PPS did not follow

up on Plaintiffs’ reports of assault and battery, nor offer

Plaintiffs any support, solutions, training, protective gear,

or any assistance of any kind”; plaintiffs were harmed “by

the offensive physical contact of the students”; and “a spe-

cial relationship” existed between PPS and the students and

between PPS and plaintiffs. Plaintiff in Demma made the

same kinds of allegations.

In moving for dismissal, defendants characterized

plaintiffs’ battery claims as asserting an “ ‘aiding and assist-

ing’ theory of battery” as described in Walthers v. Gossett,

148 Or App 548, 553, 941 P2d 575 (1997). Defendants argued

that plaintiffs had failed to plead a viable aiding-and-as-

sisting claim of battery because they had failed to allege

(1) that the defendant “engaged in acts that facilitated

another’s torts, with the intent or knowledge that tortious

conduct would occur,” and (2) that the battery served a “pur-

pose of the corporation or [was within] the nature of the

acts the employees of the corporation are hired to perform.”

Walthers, 148 Or App at 558.

406 Moore v. Portland Public Schools

In response to defendants’ motion in Moore, plain-

tiffs argued that their battery claim was sufficient, because

they had alleged the following facts: that defendants

(1) were aware of, allowed, and condoned physical and sexual

violence against plaintiffs by students; (2) chose to continue

to expose staff, including plaintiffs, to interactions with vio-

lent students knowing that these interactions would result

in injury; (3) purposefully did not put in place any safety

protections against the offensive and harmful contact it

knew had occurred in the past and would continue to occur;

(4) knew that plaintiffs continued to be exposed to harmful

and offensive contact from violent students and did nothing

to protect plaintiffs from the offensive or harmful contact;

and (5) ignored plaintiffs’ repeated requests for help from

defendants, including repeated requests for safety gear,

reporting systems, training, and any other help defendants

could give, leaving plaintiffs with options to stay and be

battered or lose their jobs. Plaintiffs also alleged that they

have a special relationship with PPS. Plaintiffs argued that

those allegations established “that it was foreseeable that

Defendants’ intentional acts,” such as refusal to put in place

safety precautions and to investigate claims of assaults,

would result “in continued assaults and battery to Plaintiffs’

persons.” Plaintiffs argued that the tort of battery does not

require the defendant to be the one who actually engages

in the offensive contact, citing Denton v. Arnstein, 197 Or

28, 250 P2d 407 (1952); Friedrich v. Adesman, 146 Or App

624, 934 P2d 587 (1997); and Brown v. Far West Federal, 66

Or App 387, 674 P2d 1183 (1984).

Demma filed a shorter version of the response that

plaintiffs in Moore had filed to argue that her allegations

stated a battery claim. She asserted that the allegations

established that PPS employed her and “directed her work

and the tasks she performed,” that she was “forced to endure

violent students’ offensive and harmful conduct” as a conse-

quence, and that OSHA investigated and found that PPS

had failed to investigate injuries to prevent reoccurrence,

thereby indicating that PPS intended plaintiff to be repeat-

edly attacked and injured.

Cite as 328 Or App 391 (2023) 407

Plaintiffs’ allegations suggest two theories for hold-

ing PPS liable, and plaintiffs have argued in support of those

theories on appeal. First, citing Olsen v. Deschutes County,

204 Or App 7, 127 P3d 655, rev den, 341 Or 80 (2006), plain-

tiffs contend that PPS can be held directly liable, through

joint liability, for tortious conduct by the students.

That theory requires PPS’s breach of duty and its

substantial assistance or encouragement to the students

who physically or sexually assaulted plaintiffs. In Olsen,

the plaintiffs worked at a county respite care facility for the

mentally ill, caring for clients and assisting mental health

professionals. Id. at 9. One of the plaintiffs sued for assault

after the county admitted a known violent and aggres-

sive client to the facility who charged her in a threatening

manner. Id. at 25. We explained that, under Granewich v.

Harding, 329 Or 47, 985 P2d 788 (1999), and the Restatement

(Second) of Torts section 876 comment b (1979), a defendant

may be liable for another’s tort when the defendant knows

that the other’s “conduct constitutes a breach of duty and

gives substantial assistance or encouragement to the other

so to conduct himself.” Olsen, 204 Or App at 26. We rejected

the defendant’s contention that the trial court had erred in

denying its motion for directed verdict, concluding that the

evidence permitted the jury to determine that, by retain-

ing the client and “providing him with potential victims and

the opportunity to do harm, defendant, through its agents,

intentionally attempted to inflict harm on plaintiffs.” Id. at

25-26.

Similar to the facts in Olsen, the allegations in

these cases include that PPS knew that students were phys-

ically aggressive or violent and committing battery against

plaintiffs, had the authority to control the students and pro-

tect plaintiffs but failed to take any corrective action, and

intended to cause the harmful or offensive physical contact.

In her briefing, plaintiff Demma argues that the allegations

in her workers’ compensation and whistleblower retaliation

claims that defendants retaliated against her by “purposely

placing violent students in her classrooms” further support

her battery claim. Taking those allegations as true for pur-

poses of a motion to dismiss, we conclude that plaintiffs

408 Moore v. Portland Public Schools

adequately pleaded their theory that PPS is directly liable

for battery.

Plaintiffs also seek to hold PPS vicariously liable

for batteries committed by students. Plaintiffs point out case

law—for example, Vernonia Sch Dist 47J v. Acton, 515 US

646, 655-56, 115 S Ct 2386, 132 L Ed 2d 564 (1995)—in which

courts have observed that schools act “in loco parentis” for

some purposes when students are in their care during the

school day. Based on that common-law recognition of the “in

loco parentis” status of schools, plaintiffs argue that we should

hold that PPS is vicariously liable for the alleged batteries

committed by students in PPS classrooms, whether or not PPS

is directly liable based on its own actions and inactions.3

For three reasons, we are not persuaded that a

school district’s “in loco parentis” relationship with students,

as described in the case law cited by plaintiffs, makes the

district vicariously liable for intentional torts committed

by students. First, we have located no case holding that a

school district’s in loco parentis relationship with its stu-

dents makes the school district vicariously liable for batter-

ies or other intentional torts committed by students against

school employees. Our cases addressing the in loco parentis

relationship between schools and their students have treated

the relationship as one that imposes on the school district a

duty to protect and safeguard students, not one that would

make a school district vicariously liable to school employees

for the torts of students. See Pangle v. Bend-Lapine School

District, 169 Or App 376, 395, 10 P3d 275, rev den, 332 Or

558 (2000) (“School personnel act in a surrogate parent role,

insofar as student safety on high school campuses is con-

cerned.”); Jamshidnejad v. Central Curry School Dist., 198

Or App 513, 522-23, 108 P3d 671 (2005) (same). Although

we have recognized that a school standing in loco parentis

may have a right to control a minor child by detaining or

confining them, that duty flows from the school’s obligation

to provide appropriate educational opportunities in a safe

3

Plaintiffs also brought a negligence claim against PPS, alleging negligent

failure to protect plaintiffs from assaultive conduct by students. The trial court

dismissed that claim under ORS 30.265(6)(a) on the ground that the workers’

compensation scheme supplied plaintiffs with their exclusive remedy. The dis-

missal of that claim is not at issue on appeal.

Cite as 328 Or App 391 (2023) 409

environment for its students. See Simms v. School Dist. No. 1,

13 Or App 119, 124, 508 P2d 236, rev den (1973) (discussing

common law rule that teachers are not civilly liable for using

reasonable physical punishment to address student miscon-

duct); see also Jamshidnejad, 198 Or App at 522-23 (citing

Pangle to discuss school’s right to control student speech in

furtherance of the “school’s educational mission”). Nothing

in our case law suggests that a school’s in loco parentis rela-

tionship with its students imposes an obligation on it to

protect employees from students in a way that would make

the school district vicariously liable for the torts of students

committed against school employees.4

Second, plaintiffs’ proposed approach would result

in a school, acting in loco parentis under the common law,

having more expansive vicarious liability for a child’s torts

than an actual parent. In general, at common law, “a par-

ent is not liable for the torts of the child unless the parent

directed or ratified the act, took the benefit of it, or the child

acted as a servant of the parent.” Davis v. DuBosch, 283 Or

363, 366, 583 P2d 1133 (1978). Plaintiffs have not supplied

a justification for holding PPS vicariously liable when the

common law would not recognize vicarious parental liability

under the circumstances present here.

Third, plaintiffs’ proposed rule is at odds with

choices the legislature has made regarding parental liability

for a child’s torts. The legislature has—in a limited way—

abrogated the common-law rule regarding parental liability

for children’s torts. In part, ORS 30.765(1) provides that

“the parent or parents of an unemancipated minor child

shall be liable for actual damages to person or property

caused by any tort intentionally or recklessly committed by

such child. However, a parent who is not entitled to legal

custody of the minor child at the time of the intentional or

reckless tort shall not be liable for such damages.”

ORS 30.765(1). The statute then caps parental liability at

$7,500. The legislature could have enlarged the scope of

4

Plaintiffs have not developed an argument, in line with their allegation,

that some “special relationship” between PPS and plaintiffs (as opposed to one

between PPS and students) makes PPS vicariously liable for the torts of the

students.

410 Moore v. Portland Public Schools

parties liable for a child’s intentional tort beyond parents

having legal custody of the child, including those acting in

loco parentis, but it did not. The legislature’s express but

narrow abrogation of the common-law rule of parental

immunity for parents with legal custody is inconsistent with

plaintiffs’ expansive view of vicarious liability for a school

district. Adopting plaintiffs’ proposed rule of law would lead

to the anomalous result of a school district being vicariously

liable for a student’s torts because of its parent-like rela-

tionship with the student at school when the legislature

has retained the common-law rule of parental immunity

for actual parents who do not have legal custody of their

children. Accordingly, we hold that a school district’s in loco

parentis relationship with a student does not make the dis-

trict vicariously liable for a student’s torts committed while

the student is under the district’s supervision.

The trial court erred in dismissing the entirety of

plaintiffs’ battery claims for failure to state a claim upon

which relief can be granted. Plaintiffs in Moore and Demma

adequately alleged battery claims against PPS based on

their theory of PPS’s direct, as opposed to vicarious, liability.

C. Timeliness of Plaintiffs’ Battery and Disability Discrim-

ination Claims

As noted, all plaintiffs asserted battery claims

against PPS. Plaintiff Conley asserted a claim for disability

discrimination. The trial court concluded that those claims

were untimely insofar as they extended beyond 180 days

before the complaints were filed. Plaintiffs assign as error

the trial court’s dismissal of plaintiffs’ claims for battery

and disability discrimination on those grounds. As pleaded,

according to plaintiffs, the facts underlying the claims show

a continuing pattern of conduct within the relevant time

period, which allows for allegations outside the 180-day lim-

itation period to form the basis of the claim under the con-

tinuing tort doctrine. We address the battery claims and the

disability discrimination claim separately.

1. Battery claims

We reject the application of the continuing tort

doctrine to plaintiffs’ battery claims. Discrete instances of

Cite as 328 Or App 391 (2023) 411

battery that are “separately actionable and not merely an

element of a single tort,” see Griffin v. Tri-Met, 112 Or App

575, 581-82, 831 P2d 42 (1992), aff’d in part and rev’d in part

on other grounds, 318 Or 500, 870 P2d 808 (1994), even if an

ongoing pattern of abuse can be shown, see Davis v. Bostick,

282 Or 667, 671-72, 580 P2d 544 (1978), do not fit within the

characterization of a continuing tort.

In Davis, the Supreme Court agreed with the defen-

dant that individual acts of assault and battery that occurred

outside the limitation period could not be considered part

of a continuing tort, even though the plaintiff had alleged

an ongoing pattern of physical and mental abuse. 282 Or at

671-72. The court explained that a separate cause of action

“certainly could have been asserted” after each of the defen-

dant’s earlier acts; they “were discontinuous in the sense

that each had a beginning and an end, each was separated

from the next by some period of relative quiescence, and each

was capable of producing compensable harm.” Id. at 673.

Although the acts could be viewed as a continuous course of

conduct, the court concluded that a continuing tort theory

based on a course of tortious, discrete acts could not defeat

the statute of limitations. Id. at 673-74; accord Barrington v.

Sandberg, 164 Or App 292, 296, 991 P2d 1071 (1999) (“A con-

tinuing tort is based on the concept that recovery is for the

cumulative effect of wrongful behavior, not for discrete ele-

ments of that conduct.” (Internal quotation marks omitted.)).

Accordingly, the trial court in Moore correctly

rejected plaintiffs’ argument that their battery claims were

based on a continuing tort theory. Plaintiffs alleged mul-

tiple, separate instances of battery, not a continuing tort.

Any battery claims that occurred more than 180 days before

the filing of the relevant complaint were properly dismissed.

For that reason, we affirm the dismissal of plaintiff Ferrer-

Burgett’s battery claim; all of Moore’s claims of battery that

occurred before May 5, 2018; and all of Gamez’s, Weaver’s,

Conley’s, Meskimen’s, Gonci’s, and Manzella’s claims of bat-

tery that occurred before August 1, 2018.

2. Disability discrimination claim

For her disability discrimination claim, Conley

contends that she initiated her accommodation request in

412 Moore v. Portland Public Schools

June 2018, with multiple attempts to engage in the interac-

tive process with PPS for weeks thereafter with no response.

She argues that her allegations fell within the 180-day

period preceding the filing of the amended complaint (that

is, on or after August 1, 2018). Conley argues that her dis-

ability discrimination claim did not accrue upon filing the

accommodation form, but rather, when PPS failed to engage,

on a continuing basis, in the interactive process required by

law.

We accept the following allegations as true. Conley

submitted an accommodation request on June 14, 2018.

She received a receipt confirmation on June 21, 2018, but

never received any other communications regarding her

request. Conley “reached out to human resources and her

union multiple times over the next few weeks, but never

heard back,” and she eventually “[took] matters into her

own hands” and found another job within the district in the

fall. Furthermore, “[b]etween September and December of

2018, Plaintiff Conley had been called dozens of times as a

backup [in special education classrooms]. She continues to

be assaulted. Because she never received a response from

PPS to her request for accommodation, she must still endure

the physical violence.” The complaint does not state at what

point Conley believed that her accommodation request was

being ignored such that it amounted to disability discrim-

ination due to failure to accommodate her disability, or

exactly when Conley looked for and secured an alternative

job in the district.

The unlawful employment practice alleged is pre-

mised on the employer’s failure to engage in the inter-

active process preliminary to determining a reasonable

accommodation and the employer’s failure to accommodate

an employee’s disability. See, e.g., ORS 659A.112(2)(e) (an

employer commits disability discrimination if the employer

“does not make reasonable accommodation to the known

physical or mental limitations of a qualified individual with

a disability,” unless “the accommodation would impose an

undue hardship”); OAR 839-006-0206(4) (“Once a qualified

employee * * * has requested reasonable accommodation * * *,

the employer has a duty to initiate a meaningful interactive

Cite as 328 Or App 391 (2023) 413

process with the employee * * * to determine whether rea-

sonable accommodation would allow the employee * * * to

perform the essential functions of a position held.”); OAR

839-006-0206(6) (failure to engage in the interactive pro-

cess is “a failure to reasonably accommodate”). Thus, the

claim does not accrue on the date the employee first requests

accommodation.

Instead, PPS’s ongoing failure to comply with the

disability discrimination law, as Conley alleged, gives rise

to questions about when her claim accrued. As is the case

here, when an employer ignores a request for accommoda-

tion and the employee does not allege an accrual date of the

claim, the face of the complaint may not establish exactly

when the claim accrued. In theory, it might have been possi-

ble for defendants to argue that Conley knew that PPS had

effectively denied her request for accommodation when she

looked for another job, but that date does not appear on the

face of the complaint either. Moreover, Conley alleged that

PPS failed to accommodate her disability during the lim-

itation period, when it assigned her to work as a backup in

special education classrooms in the last four months of 2018.

In sum, the facts stated in Conley’s complaint do

not establish that her claim accrued before August 1, 2018.

Accordingly, the trial court erred in dismissing her disabil-

ity discrimination claim as untimely.

D. Whether Plaintiffs Stated a Hostile Work Environment

Claim

The Moore plaintiffs’ employment discrimination

claim based on a hostile work environment theory is grounded

on sex discrimination. Defendants moved to dismiss on two

grounds. First, they argued, plaintiffs had failed to allege

ultimate facts stating a hostile work environment claim

based on sex, because the alleged sex discrimination was

controverted by plaintiffs’ own allegations that the spe-

cial needs students indiscriminately assaulted both male

and female school personnel and that PPS allegedly failed

to act on complaints by all the school personnel. Plaintiffs

responded that they had adequately pleaded the claim, rely-

ing on allegations that they were female, they were subjected

414 Moore v. Portland Public Schools

to assaults and harassment based on their sex, and defen-

dants knowingly failed to remedy their working conditions.

The trial court agreed with defendants that the allegations

did not support a sex discrimination claim based on a hos-

tile work environment theory.

Second, defendants challenged the timeliness of the

events supporting the claims, arguing that those events had

to occur within 180 days of the commencement of their action.

Plaintiffs responded that the claim was based on a continu-

ing tort, a theory that the court rejected.5 The trial court then

entered an order dismissing plaintiffs’ second claim for relief

for timely allegations (those that arose within the operative

180-day period preceding the filing of the complaint), because

plaintiffs had “failed to state ultimate facts sufficient to con-

stitute a hostile work environment claim” based on sex.

On appeal, plaintiffs do not challenge the trial

court’s explicit rejection of their continuing tort theory as

to the hostile work environment claims and instead assign

“as error the trial court’s dismissal of their [ORS] 659A.030

claim based on the incorrect interpretation of the law

such that female employees who are sexually assaulted at

work where male employees may also have been sexually

assaulted cannot maintain a claim for a hostile work envi-

ronment based on sex.” Thus, we address whether plaintiffs

in Moore sufficiently alleged a sex discrimination claim

based on a hostile work environment theory, reviewing the

trial court’s ruling granting defendants’ motion under for-

mer ORCP 21 A(8) for legal error. Moser v. Mark, 223 Or App

52, 55, 195 P3d 424 (2008). We conclude that they did.

In part, ORS 659A.030(1)(b) provides that it is “an

unlawful employment practice” for “an employer, because

of an individual’s * * * sex * * * to discriminate against the

individual in compensation or in terms, conditions or priv-

ileges of employment.” The Bureau of Labor and Industries

(BOLI) has issued workplace-discrimination rules estab-

lishing that sexual harassment is a form of unlawful

5

But see generally National Railroad Passenger Corp. v. Morgan, 536 US 101,

122 S Ct 2061, 153 L Ed 2d 106 (2002) (holding that the continuing violation

doctrine applies to hostile work environment claims under Title VII if one act of

harassment occurred within the statutory period).

Cite as 328 Or App 391 (2023) 415

discrimination on the basis of sex under ORS 659A.030. See

OAR 839-005-0030(1) (implementing ORS 659A.030); OAR

839-005-0021(2) (“Discrimination because of sex includes

sexual harassment[.]”); Fred Meyer, Inc. v. BOLI, 152 Or App

302, 307, 954 P2d 804 (1998) (“By administrative rule, BOLI

has determined that sexual harassment is a form of gender

discrimination.”). BOLI’s approach is consistent with federal

case law construing Title VII, in which the general prohibi-

tion against sex discrimination in employment has similarly

been held to encompass sexual harassment. See, e.g., Meritor

Savings Bank, FSB v. Vinson, 477 US 57, 64-65, 106 S Ct

2399, 91 L Ed 2d 49 (1986) (explaining that sexual harass-

ment is a form of sex discrimination prohibited by Title VII);

H. K. v. Spine Surgery Center of Eugene, 305 Or App 606,

611, 470 P3d 403 (2020), rev den, 367 Or 826 (2021) (Oregon

courts look to federal cases construing Title VII of the federal

Civil Rights Act for guidance in construing ORS 659A.030,

because its predecessor, former ORS 659.030, renumbered as

ORS 659A.030 (2001), was modeled after that act.).

BOLI describes the types of conduct that constitute

sexual harassment in OAR 839-005-0030(1), as follows:

“(a) Unwelcome sexual advances, requests for sexual

favors, or other conduct of a sexual nature when such con-

duct is directed toward an individual because of that indi-

vidual’s sex and:

“(A) Submission to such conduct is made either explic-

itly or implicitly a term or condition of employment; or

“(B) Submission to or rejection of such conduct is

used as the basis for employment decisions affecting that

individual.

“(b) Any unwelcome verbal or physical conduct that

is sufficiently severe or pervasive to have the purpose or

effect of unreasonably interfering with work performance

or creating a hostile, intimidating or offensive working

environment.”

The guidance in OAR 839-005-0030(1)(b) does not limit

sexual harassment to unwelcome conduct that targets only

members of one sex, which is consistent with case law

addressing the same concept under Title VII.

416 Moore v. Portland Public Schools

The Ninth Circuit Court of Appeals, for example,

has held that it is error to conclude that harassing conduct

is not “because of sex” under Title VII of the Civil Rights

Act of 1964, the analogous federal civil rights statute, merely

because the abuser “consistently abused men and women

alike.” Steiner v. Showboat Operating Co., 25 F3d 1459, 1463

(9th Cir 1994). Other circuits that have considered the ques-

tion agree. See, e.g., Petrosino v. Bell Atl., 385 F3d 210, 221

(2d Cir 2004) (exposure of sexually offensive material to both

male and female employees does not prevent a woman from

establishing evidence of a hostile work environment based

on sex); Burns v. Johnson, 829 F3d 1, 17 (1st Cir 2016) (sim-

ilar); see generally Sharp v. S&S Activewear, L.L.C., 69 F4th

974, 979-81 (9th Cir 2023) (collecting and discussing cases in

which the employer exposed all employees to music or other

auditory programming with offensive gender-specific or sex-

ual references). And in Bostock v. Clayton Cty., ___US___,

___, 140 S Ct 1731, 1741, 207 L Ed 2d 218 (2020), the United

States Supreme Court rejected the “equal opportunity dis-

crimination” argument, stating that it is no “defense for

an employer to say it discriminates against both men and

women because of sex.” In other words, the Court explained,

how others in the same environment are treated based on

sex is immaterial to whether the treatment of a single indi-

vidual is based on that individual’s sex. See id. at 1740-42.

Those federal cases are persuasive. We conclude

that a plaintiff alleging discrimination because of sex pro-

hibited by ORS 659A.030(1)(b) need not establish that the

employer only discriminated against members of the plain-

tiff’s sex in order to establish a hostile work environment

claim and that allegations of an offensive work environment

for all employees is not fatal to plaintiffs’ claim.

In a recent case involving harassment that included

sexual touching, we explained that, to prove the existence of

a hostile working environment due to sexual harassment, a

complainant must establish that the employee was subjected

to verbal or physical conduct of a sexual nature, the conduct

was unwelcome, and the conduct was “ ‘sufficiently severe or

pervasive to alter the conditions of the victim’s employment

and create an abusive working environment.’ ” Frehoo, Inc.

Cite as 328 Or App 391 (2023) 417

v. BOLI, 319 Or App 548, 558, 510 P3d 888 (2022), rev den,

370 Or 789 (2023) (quoting Fuller v. City of Oakland, 47 F3d

1522, 1527 (9th Cir 1995)). And if a hostile work environment

is established, an employer may be held liable for the harass-

ment on any of the grounds set forth in OAR 839-005-0030(3)

to 839-005-0030(9). Frehoo, 319 Or App at 559.

Here, plaintiffs allege both sexual and sex-based

nonemployee harassment. Sexual harassment by nonem-

ployees is described in OAR 839-005-0030(7) as follows:

“An employer is liable for sexual harassment by non-

employees in the workplace when the employer or the

employer’s agents knew or should have known of the con-

duct unless the employer took immediate and appropriate

corrective action. In reviewing such cases the division will

consider the extent of the employer’s control and any legal

responsibility the employer may have with respect to the

conduct of such non-employees.”

Thus, BOLI recognizes that employers can be held liable

for harassing conduct by certain nonemployees when the

employer knew or should have known of the conduct and

failed to take immediate and appropriate corrective action.

See also Campbell v. State of Hawaii Dept. of Education, 892

F3d 1005, 1017 (9th Cir 2018) (“[Employer] may be held to

account for the students’ actions only if, after learning of the

harassment, it failed to take prompt corrective measures

that were ‘reasonably calculated to end the harassment.’ ”).

In this case, plaintiffs alleged a claim against all

defendants for “Hostile Work Environment - ORS 659A.030.”

Plaintiffs alleged:

“Defendant PPS subjected the female Plaintiffs to a

hostile work environment through its continued miscon-

duct in its treatment of Plaintiffs. Defendant PPS engaged

in a pattern and practice of ignoring and condoning sex-

ual, physical, and verbal abuse to Plaintiffs’ persons. The

condoned conduct against Plaintiffs was pervasive, severe,

offensive, and outrageous.

“Defendant PPS’ actions had the purpose and effect of

creating an intimidating, hostile, and offensive working

environment, and had the effect and purpose of unreason-

ably interfering with Plaintiffs’ work, safety, and wellbeing.

418 Moore v. Portland Public Schools

“Throughout the many complaints of harassment and

assaults, Defendants Pearson, LaFramboise, Stubbs, and

Porter-Lopez failed to properly investigate, failed to take

appropriate action to prevent harm to Plaintiffs, ignored

their requests for assistance and protective gear, failed to

properly train the Plaintiffs and instead aided, abetted,

and incited the assaults.”

Plaintiffs also alleged that defendants had caused plaintiffs

damages.

In context (plaintiffs had already alleged at length

the kinds of assaults they suffered at the hands of students),

plaintiffs’ allegations state ultimate facts establishing a

claim of sex discrimination based on a hostile work environ-

ment in which the employer may be held liable for nonem-

ployee harassment. Plaintiffs alleged that students engaged

in “sexual, physical, and verbal abuse”; that PPS was aware

of the abuse; that PPS condoned and ignored the abuse and

failed to take appropriate action in response to their com-

plaints; that the abuse was offensive and interfered with

plaintiffs’ work, safety, and wellbeing; and that the indi-

vidual defendants aided, abetted, and incited assaults.

Although plaintiffs did not state that the discrimination

was “because of sex,” they noted their protected class (that

they were female), and both the court and defendants were

or became aware that that was the basis for their claim. The

trial court erred in dismissing the hostile work environment

claims based on allegations of harassing or otherwise offen-

sive conduct within the 180-day period before the claim was

asserted in this case.

E. Dismissal of Individual Defendants and Substitution of

PPS

Finally, we address plaintiffs’ contention in Moore

that the trial court erred by substituting the public body,

PPS, for all individual defendants. The court determined

that under ORS 30.265(3) of the OTCA, the public body was

the appropriate defendant and required substitution in all

claims. Again, our review is for legal error, assuming the

truth of all well-pleaded facts and giving plaintiffs the ben-

efit of favorable inferences. Kilminster v. Day Management

Corp., 323 Or 618, 621, 919 P2d 474 (1996).

Cite as 328 Or App 391 (2023) 419

In Oregon, if a tort action “alleges damages in an

amount equal to or less than the damages allowed under

[the OTCA], the sole cause of action for a tort committed by

officers, employees or agents of a public body acting within

the scope of their employment or duties and eligible for

representation and indemnification under ORS 30.285 or

30.287 is an action against the public body.” ORS 30.265(3).6

In such situations, “the court upon motion shall substi-

tute the public body as the defendant.” Id. Concomitantly,

the public body has a duty to “defend, save harmless and

indemnify” an employee “against any tort claim or demand,

whether groundless or otherwise, arising out of an alleged

act or omission occurring in the performance of duty.” ORS

30.285(1). That duty, however, “do[es] not apply in case of

malfeasance in office or willful or wanton neglect of duty.”

ORS 30.285(2).

Plaintiffs do not dispute that the damages they

seek are “in an amount equal to or less than the damages

allowed under ORS 30.271.” ORS 30.265(3). They challenge

the application of ORS 30.265(3) because, in their view, their

claims against the individual defendants contain some alle-

gations indicating that their conduct did not fall within

“the scope of their employment or duties.” Plaintiffs did not

allege expressly that the individual defendants had acted

outside the course and scope of their employment. However,

plaintiffs explained to the trial court that

“the assumption from the information that we have is that

they were making decisions that did not [comport] with

what they were supposed to do in the course and scope of

their employment, which was creating safe classrooms,

6

In full, ORS 30.265(3) provides:

“If an action under ORS 30.260 to 30.300 alleges damages in an amount

equal to or less than the damages allowed under ORS 30.271, 30.272 or

30.273, the sole cause of action for a tort committed by officers, employees or

agents of a public body acting within the scope of their employment or duties

and eligible for representation and indemnification under ORS 30.285 or

30.287 is an action against the public body. If an action is filed against an

officer, employee or agent of a public body, and the plaintiff alleges damages

in an amount equal to or less than the damages allowed under ORS 30.271,

30.272 or 30.273, the court upon motion shall substitute the public body as the

defendant. Substitution of the public body as the defendant does not exempt

the public body from making any report required under ORS 742.400.”

(Emphases added.)

420 Moore v. Portland Public Schools

making sure that students were safe, making sure that

their employees were safe and whatever else is in the job

description.”

On appeal, they contend that their allegations of aiding,

abetting, or inciting battery, of retaliation and discrimina-

tion, and of other unlawful abuses could establish that the

individual defendants had not acted in the course and scope

of their employment.

Defendants respond by comparing plaintiffs’ alle-

gations to the factors that are used to determine whether

an employee acted within the scope of employment, includ-

ing the motivation behind the individuals’ alleged conduct.

Three requirements must be met to establish that an employ-

ee’s conduct was within the scope of employment: (1) the con-

duct must have occurred substantially within the time and

space limits authorized by the employment; (2) the employee

must have been motivated, at least partially, by a purpose

to serve the employer; and (3) the act must have been of a

kind that the employee was hired to perform. Chesterman

v. Barmon, 305 Or 439, 442, 753 P2d 404 (1988). In defen-

dants’ view, plaintiffs do not allege facts indicating that the

individuals “were not motivated to serve their employer or

that the allegations [do not] relate to the service the offi-

cials were required to perform.” Thus, defendants assert,

the trial court correctly substituted PPS for the individual

defendants as a matter of law.

Whether conduct is within the scope of a person’s

employment for the purposes of ORS 30.265(3) is a question

of fact, “except in cases where only one reasonable conclusion

may be drawn from the facts pled.” Fearing v. Bucher, 328

Or 367, 374, 977 P2d 1163 (1999); Johnson, 272 Or App at

717 (“Whether a particular act is within the scope of employ-

ment is to be decided on its own particular facts and circum-

stances by the trier of fact[.]”). However, to reach that ques-

tion of fact, plaintiffs’ complaint must allege ultimate facts

that, if true, are “sufficient to establish” that the individual

defendants’ acts were outside the scope of their employment

and “resulted in the acts that caused injury to plaintiff.”

Fearing, 328 Or at 374; see also ORCP 18 A (“A pleading

which asserts a claim for relief * * * shall contain * * * [a]

Cite as 328 Or App 391 (2023) 421

plain and concise statement of the ultimate facts consti-

tuting a claim for relief without unnecessary repetition.”).

Conclusions of law alone are insufficient. Fearing, 328 Or at

371.7

In Fearing, the Supreme Court considered whether

the plaintiff’s complaint contained sufficient allegations

that an individual defendant’s conduct was within the scope

of his employment and arguably resulted in the acts that

caused the plaintiff’s injury such that liability could be

imputed to the defendant’s employer. To make that determi-

nation, the court explained, the complaint needed to “con-

tain[ ] allegations sufficient to satisfy all three Chesterman

requirements for establishing that employee conduct was

within the scope of employment.” Id. at 375-76.

The instant case involves the negative of the scope

of employment issue in Fearing. Here, rather than alleging

facts relating to whether a defendant’s conduct was within

the scope of employment, plaintiffs here must allege ultimate

facts that could permit a factfinder to conclude that defen-

dants’ conduct was not within the scope of their employment.

And as in Fearing, plaintiffs are required to allege ultimate

facts that, if true, permit the finding that defendants’ con-

duct caused or led to actions that caused plaintiffs’ injuries.

See id. at 374 (“[W]e must consider whether the allegations

contained in the amended complaint state ultimate facts

sufficient to establish that acts that were within [defen-

dant’s] scope of employment resulted in the acts that caused

injury to plaintiff.”).

Plaintiffs’ allegations concern four individuals, at

all material times employees of PPS: Mary Pearson,

Senior Director of Special Education; Theresa Stubbs, Vice

Principal of the Pioneer Program; Michael LaFramboise,

Principal of the Pioneer Program; and Andrea Porter-Lopez,

Principal at Woodlawn Elementary School. All four individ-

uals were named as defendants in plaintiffs’ first and sec-

ond claims for relief for battery and a hostile work environ-

ment, respectively.

7

As Fearing illustrates, a pleading concerning whether a party acted within

the course and scope of employment can be challenged by way of a motion to dis-

miss. Accordingly, we reject plaintiff’s procedural argument to the contrary.

422 Moore v. Portland Public Schools

Plaintiffs make various allegations throughout

their complaint that concern each individual defendant,

but almost all of them relate directly to defendants fulfill-

ing their respective roles as a PPS employee. For example,

plaintiffs allege that “Stubbs and LaFramboise [told plain-

tiffs] that their jobs would be in jeopardy if they answered

the parents” when asked about their children, including

“parents of unsafe students,” because “they were not allowed

to talk to students’ parents.” Allegations like those, if true,

permit a factfinder to conclude that the defendants’ conduct

was a cause of plaintiffs’ alleged injuries, but they describe

conduct that necessarily involves defendants acting within

their roles as public employees. Thus, those types of facts, on

their own, are insufficient to allow a factfinder to conclude

that defendants were not “motivated, at least partially, by a

purpose to serve the employer.” Chesterman, 305 Or at 442.

However, in addition to those kinds of allegations,

plaintiffs also allege that, “[t]hroughout the many com-

plaints of harassment and assaults,” all four individual

defendants “failed to take appropriate action to prevent

harm to Plaintiffs, ignored their requests for assistance and

protective gear, failed to properly train the Plaintiffs and

instead aided, abetted, and incited the assaults.” Those are

allegations of ultimate facts:

“An ultimate fact is a fact from which legal conclusions are

drawn. A conclusion of law, by contrast, is merely a judg-

ment about a particular set of circumstances and assumes

facts that may or may not have been pleaded. Allegations of

when particular conduct occurred, of the motivation behind

that conduct, and of the employment-related nature of that

conduct all are assertions of fact, which can be proved or

disproved.”

Fearing, 328 Or at 375 n 5 (citation omitted).

If true, those allegations could allow a factfinder to

infer that defendants were not “motivated, at least partially,

by a purpose to serve the employer.” Furthermore, those alle-

gations, if true, may allow a factfinder to infer that defen-

dants’ conduct “occurred substantially [outside] the time

and space limits authorized by the employment” and that

the conduct was not “of a kind which the employee was hired

Cite as 328 Or App 391 (2023) 423

to perform.” Chesterman, 305 Or at 442. Finally, those alle-

gations are sufficient, if true, permit a factfinder to conclude

that the individual defendants engaged in conduct that was

a cause of plaintiffs’ alleged injuries. The trial court erred in

granting defendants’ motion and dismissing the individual

defendants and substituting PPS in their stead.

Dismissal of Moore plaintiffs’ First Claim, Count 2,

for battery that occurred within the notice period reversed;

dismissal of Demma’s First Claim, Count 2, for battery

reversed; dismissal of Moore plaintiffs’ Second Claim for

hostile work environment that occurred within the notice

period reversed; dismissal of Conley’s Fourth Claim for dis-

ability discrimination reversed; remanded for further pro-

ceedings; otherwise affirmed.