Cortes v. Springfield Public Schools

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

MARIA CORTES, an Individual; YASMIN

STAUNAU, an individual; ALYSSA KENT, Case No. 6:23-cv-00680-MK

an individual; ARIN VANDERHOFF, an

individual; DENISE CLARK, an individual; FINDINGS AND

CHEMEN CLEARWATERS, an individual; RECOMMENDATION

KIRSTEN LaSHOT, an individual; LORI

UMENHOFER, an individual; SHELLEY

TONCRAY, an individual; SKYLAR NESTA,

an individual; STEPHANIE WEBSTER, an

individual; YESENIA SILVA, an individual;

WENDY WRAY-WILLIAMS, an individual;

CAROLINE McGILVARY, an individual; and

JULIE BUSTER, an individual,

Plaintiffs,

v.

SPRINGFIELD PUBLIC SCHOOLS, a

public body; SPRINGFIELD EDUCATORS

ASSOCIATION, a labor union; OREGON

SCHOOL EMPLOYEES ASSOCIATION, a

labor union,

Defendants.

KASUBHAI, United States Magistrate Judge:

Plaintiffs Maria Cortes, Yasmin Staunau, Alyssa Kent, Arin Vanderhoff, Denise Clark,

Chemen Clearwaters, Kirstin LaShot, Lori Umenhofer, Shelley Toncray, Skylar Nesta, Stephanie

Webster, Yesenia Silva, Wendy Wray-Williams, Caroline McGilvary, and Julie Buster,

(collectively, “Plaintiffs”) sued their former employer Springfield Public Schools (“SPS”) and

two labor unions, Springfield Educator’s Association (“SEA”) and Oregon School Employees

Association (“OSEA”) alleging federal and state claims of employment and religious

discrimination. Before the Court is Defendant OSEA’s Motion to Dismiss, ECF No. 67, pursuant

to Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 12(b)(1). Plaintiffs did not file an opposition to

OSEA’s motion. For the reasons below, Defendant’s motion should be GRANTED.

BACKGROUND

Plaintiffs are fifteen current and former employees of Defendant SPS who applied for

religious exemptions from their employer’s COVID-19 vaccine mandate but were placed on

indefinite unpaid administrative leave. Fifth Am. Compl. ¶ 1, ECF No. 58. In August 2021, the

Oregon Health Authority mandated that employees in public school facilities be vaccinated

against COVID-19. Id. ¶ 53. Employees could seek religious exemptions to the mandate. Id. ¶

54. Plaintiffs allege that, when they sought religious exemptions, SPS “did not engage in a good-

faith, interactive exploration of potential accommodations,” but instead uniformly placed

exempted employees on indefinite administrative leave. Id. ¶¶ 62-64. Plaintiffs allege state and

federal religious discrimination claims and a 42 U.S.C. § 1983 First Amendment claim against

SPS, and a state law claim against Defendants OSEA and SEA for aiding and abetting religious

discrimination in violation of Or. Rev. Stat. § (“ORS”) 659.030(1)(g).

As relevant to this motion, Defendant OSEA was the exclusive collective bargaining

representative for Plaintiffs Kent, Clark, Umenhofer, Toncray, Webster, Silva, and Buster, and

Defendant SEA was the exclusive bargaining representative for Plaintiffs Cortes, Staunau,

Vanderhoff, Clearwaters, LaShot, Nesta, Wray-Williams, and McGilvary. Id. ¶ 2. Plaintiffs

allege that Defendants OSEA and SEA aided and abetted SPS’ religious discrimination in

violation of state law “by agreeing to allow [SPS] to place Plaintiffs on indefinite unpaid leave as

a so-called ‘accommodation.’” Id. ¶ 67. As the factual basis for this claim, Plaintiffs rely on

memorandums of agreement (MOAs) entered into by Defendants OSEA and SEA with

Defendant SPS related to the COVID-19 vaccine mandate. Id. ¶¶ 119-120, Exs. F, G.

STANDARDS1

Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256

(2013) (quotation marks omitted). As such, courts must presume “that a cause lies outside this

limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting

jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations

omitted); see also Advanced Integrative Med. Sci. Institute, PLLC v. Garland, 24 F.4th 1249,

1256 (2022). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of

“subject-matter jurisdiction, because it involves a court’s power to hear a case, can never be

forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). An objection that a

particular court lacks subject matter jurisdiction may be raised by any party, or by the court on its

own initiative, at any time. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); Fed. R. Civ.

P. 12(b)(1).

A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either

“facial” or “factual.” See Edison v. U.S., 822 F.3d 510, 517 (9th Cir. 2016). A facial attack on

subject matter jurisdiction is based on the assertion that the allegations contained in the

complaint are insufficient to invoke federal jurisdiction. Id. “A jurisdictional challenge is factual

where the challenger disputes the truth of the allegations that, by themselves, would otherwise

1 Although Defendant OSEA also moved to dismiss under Rule 12(b)(6), that standard is omitted

here because Defendant OSEA’s arguments under Rule 12(b)(1) are dispositive.

invoke federal jurisdiction.” Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013). A factual

attack on the plaintiff’s assertion of jurisdiction “contests the truth of the plaintiff's factual

allegations, usually by introducing evidence outside the pleadings.” NewGen, LLC v. Safe Cig,

LLC, 840 F.3d 606, 614. See also Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131

(9th Cir. 2012). A factual challenge “can attack the substance of a complaint’s jurisdictional

allegations despite their formal sufficiency.” Dreier v. United States, 106 F.3d 844, 847 (9th Cir.

1996) (citation and quotation marks omitted).

DISCUSSION

Defendant OSEA argues (1) that Plaintiffs have failed to state a claim for relief against it

and (2) that this Court lacks subject matter jurisdiction. The Court does not reach the first

argument because it agrees that it lacks subject matter jurisdiction over the claim against

Defendant OSEA.

The sole claim asserted against OSEA is a state law claim for aiding and abetting

religious discrimination under ORS 659.030(1)(g). Under Section 659A.030(1)(g), it is an

unlawful employment practice “[f]or any person, whether an employer or 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.” Plaintiffs allege that OSEA’s act of signing the MOA is the basis for their aiding and

abetting religious discrimination claim. Defendant argues that this Court lacks subject matter

jurisdiction over Plaintiffs’ claim because Plaintiffs’ Complaint on its face establishes this

Court’s lack of subject matter jurisdiction. Specifically, it argues that, because the claim against

it is based on its duty of fair representation, the claim is within the exclusive jurisdiction on the

Employment Relations Board (“ERB”). Plaintiffs failed to file a response in opposition to

Defendant’s motion.

Under Oregon law, the duty of fair representation is one “created by statute and…a

breach of that duty constitutes an unfair labor practice.” Coleman v. Children's Servs. Div. of

Dep't of Hum. Res., 71 Or. App. 687, 690, 694 P.2d 555, 557 (1985). ERB has “exclusive

jurisdiction to decide all unfair labor practice complaints concerning public employers.” Id. at

692 (citation omitted); see also ORS 243.676 (providing that “[w]henever a written complaint is

filed alleging that any person has engaged in or is engaging in any unfair labor practice,” ERB

must investigate and make factual and legal findings); Ahern v. Oregon Pub. Emps. Union, 329

Or. 428, 435, 988 P.2d 364, 367 (1999) (ERB has “exclusive jurisdiction to determine whether

an unfair labor practice has been committed”).

Based on Plaintiffs’ allegations and analogous case law, the Court agrees that Plaintiffs’

claim as alleged is based on unfair labor practices which falls under the exclusive jurisdiction of

ERB. The basis for Plaintiffs’ claim against Defendant OSEA is its entry into an MOA with the

District. It is not based on any affirmative conduct of Defendant OSEA with respect to Plaintiffs

specifically, but rather:

Making matters worse is that the Unions – the SEA in the case of the Teachers’

Union Members, the OSEA in the case of the OSEA Members – as the exclusive

collective bargaining representatives for their respective groups of Plaintiffs, owed

Plaintiffs a duty of fair representation that required the Unions to act in their

members’ best interests. The Unions did no such thing: Instead, they actively aided

and abetted SPS’ discrimination against Plaintiffs by agreeing to allow the District

to place Plaintiffs on indefinite unpaid leave as a so-called “accommodation[.]”

Fifth Am. Compl. ¶ 67 (emphasis added).

In Plaintiffs’ own words, their claim is one for breach of Defendant OSEA’s duty of fair

representation relative to its entry into the MOA with SPS, which is a complaint about unfair

labor practices. See Coleman, 71 Or. App. at 691 (“ERB’s determination that a violation of the

union’s duty of fair representation constitutes an unfair labor practice[] under ORS 243.672 is

reasonable…”). This also aligns with other cases which have explained that claims which are

premised on a violation of a union representative’s duty of fair representation implicate the

statute which imposes that duty, even if couched as other types of claims. See, e.g., Ahern, 329

Or. at 433 (a plaintiff cannot avoid ERB’s jurisdiction by alleging an unfair labor practice as an

element of another type of claim); Adkins v. Mireles, 526 F.3d 531, 540 (9th Cir. 2008) (Where

state law claims are “inextricably linked to [a defendant’s] performance of duties owed in their

capacity as union representatives,” such claims are governed by labor law because the claims

depended on whether the defendant union violated its duty of fair representation).2

Accordingly, because Plaintiffs’ aiding and abetting claim on its face is based on

Defendant OSEA’s duty of fair representation related to its entry into an MOA, their claim is one

for unfair labor practices which is in the exclusive jurisdiction of ERB and this Court lacks

subject matter jurisdiction. In addition, because the claims against Defendant SEA rest on the

same facts regarding its fair representation of Plaintiffs, see Fifth Am. Compl. ¶¶ 67, 119, the

Court likewise lacks subject matter jurisdiction over that claim. The Court must dismiss any case

over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); see also Pistor v. Garcia,

791 F.3d 1104, 1111 (9th Cir. 2015) (noting that when a court lacks subject-matter jurisdiction,

meaning it lacks the statutory or constitutional power to adjudicate a case, the court must dismiss

the complaint, even sua sponte if necessary). Accordingly, the claim against SEA for aiding and

abetting should be dismissed with prejudice for lack of subject matter jurisdiction for the same

reasons.

2 Although the issue in this latter case was the preemption of state law claims by federal law—

which is not the question before the Court here—the analysis about the nature of claims based on

a duty of fair representation but pled as a different type of claim is equally applicable to this

case.

RECOMMENDATION

For the reasons above, Defendant OSEA’s Motion to Dismiss (ECF No. 67) should be

GRANTED and the claims against it should be DISMISSED with prejudice. Further, the claims

against Defendant SEA should be DISMISSED with prejudice for lack of subject matter

jurisdiction.

This recommendation is not an order that is immediately appealable to the Ninth Circuit

Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1)

should not be filed until entry of the district court’s judgment or appealable order. The Findings

and Recommendation will be referred to a district judge. Objections to this Findings and

Recommendation, if any, are due fourteen (14) days from today’s date. See Fed. R. Civ. P. 72.

Failure to file objections within the specified time may waive the right to appeal the district

court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

DATED this 24th day of September 2024.

s/ Mustafa T. Kasubhai

MUSTAFA T. KASUBHAI (He / Him)

United States Magistrate Judge