michael porter, p.c., osb no. 003560 -...

70098279.1 MILLER NASH GRAHAM & DUNN LLP

ATTORNEYS AT LAW TELEPHONE: 503.224.5858

3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE

PORTLAND, OREGON 97204

Michael Porter, P.C., OSB No. 003560 [email protected] Kellen Norwood, OSB No. 135641 [email protected] MILLER NASH GRAHAM & DUNN LLP 3400 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, Oregon 97204 Telephone: 503.224.5858 Facsimile: 503.224.0155

Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

WILLIAM C. DISS,

Plaintiff,

v.

PORTLAND PUBLIC SCHOOLS, a public entity; CAROLE SMITH, superintendent of Portland Public Schools; CAROL CAMPBELL; JEANDRE CARBONE; BARRY PHILLIPS; FRANK SCOTTO; PAM KNOWLES, Co-Chair of the Board of Education of Portland Public Schools; GREG BELISLE, Co-Chair of the Board of Education of Portland Public Schools; RUTH ADKINS, an individual member of the Board of Education of Portland Public

CV No. 3:14-cv-01649-PK

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

REQUEST FOR ORAL ARGUMENT

Case 3:14-cv-01649-PK Document 34 Filed 05/09/16 of 59

70098279.1

Schools; MATT MORTON, an individual member of the Board of Education of Portland Public Schools; TOM KOEHLER, an individual member of the Board of Education for Portland Public Schools; BOBBIE REGAN, an individual member of the Board of Education of Portland Public Schools,

Defendants.


TABLE OF CONTENTS

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I. INTRODUCTION............................................................................................................ 1

II. MATERIAL FACTS ....................................................................................................... 3

A. Diss is hired at Benson as a career and technical education instructor .................. 3

B. The School District addresses Diss's pattern of unprofessional conduct toward students and parents ................................................................................... 3

C. In 2008-2009, Diss is placed on a plan of assistance for ineffective classroom performance .......................................................................................... 4

D. Diss is unassigned from Benson during the summer before Carol Campbell takes over as principal ........................................................................... 4

E. Campbell develops concerns about Diss's performance during the 2011-2012 school year .................................................................................................... 5

F. Diss exhibits a pattern of unprofessional conduct early in the 2012-2013 school year and continually violates administrative directives .............................. 7

1. Diss refuses to allow the scheduled TOP presentations in his classroom on September 17, 2012 ............................................................. 8

2. Diss continues to attempt to thwart TOP and violates administrative directives .......................................................................... 10

3. Diss is instructed not to use religious expressions in professional communication with staff, students, and parents ..................................... 12

4. Diss continues to engage in unprofessional conduct and violate administrative directives .......................................................................... 13

G. The School District receives complaints about Diss's classroom performance and conduct ..................................................................................... 14

H. The School District receives reports of unprofessional conduct by Diss toward his students ............................................................................................... 15

I. Diss fails to comply with administrative directives regarding professional conduct ................................................................................................................. 16

J. Diss is dismissed from employment after failing to correct his unprofessional conduct ........................................................................................ 18

III. ARGUMENT .................................................................................................................. 19

A. Summary judgment .............................................................................................. 19

B. Constitutional claims ........................................................................................... 19


TABLE OF CONTENTS (continued)

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1. All defendants are entitled to summary judgment on Diss's First Amendment―Free Speech claim (First Claim for Relief) ...................... 19

a. Diss cannot establish a prima facie case of retaliation based on protected speech ...................................................................... 20

(1) Diss did not engage in any protected speech ................... 20

(A) Diss's "[e]xpressions of opinion with regard to TOP" (Compl., ¶ 64(a)) were not protected ............................................................... 21

(B) Diss's "[E]xpressions of opinion and speech directed at defendant Carbone" (Compl., ¶ 64(b)) were not protected .................................. 22

(C) Diss's "[V]erbal interaction with defendant Carbone" (Compl., ¶ 64(c)) was not protected ............................................................... 23

(D) The "free-speech activities of community members, including plaintiff" (Compl., ¶ 64(d)), were not protected ................................. 23

(E) Diss's "communications with his students" (Compl. ¶ 64(e)) were not protected .................... 24

(2) There is no evidence of retaliation based on protected speech ............................................................... 25

b. Diss's claims against the individual defendants fail as a matter of law because they are entitled to qualified immunity ...................................................................................... 26

c. Diss's claims against the School District fail as a matter of law because he cannot show a custom, policy, or practice of First Amendment speech retaliation ............................................ 27

2. All defendants are entitled to summary judgment on Diss's First Amendment― Freedom of Association claim (Second Claim for Relief) ...................................................................................................... 27

a. Diss cannot establish a prima facie case of retaliation based on protected association ............................................................... 27




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c. Diss's claims against the School District fail as a matter of law because he cannot show a custom, policy, or practice of First Amendment association retaliation ..................................... 28

3. All defendants are entitled to summary judgment on Diss's First Amendment― Free Exercise claim (Third Claim for Relief) ................. 28

a. Diss cannot establish a prima facie case of a violation of his free-exercise rights ....................................................................... 29

(1) The requirement to supervise TOP presentations was facially neutral and generally applicable to all Tutorial teachers ............................................................... 29

(2) The directive to avoid religious expressions in communication with staff, students, and parents does not violate the First Amendment ............................. 30

(3) Diss's claim that the individual defendants created an environment that chilled his exercise of religion fails as a matter of law ..................................................... 31


c. Diss's claims against the School District fail as a matter of law because he cannot show a custom, policy, or practice of free-exercise violations ................................................................ 32

4. All defendants are entitled to summary judgment on Diss's Equal Protection claim (Fourth Claim for Relief) .............................................. 32

a. Diss cannot establish a prima facie case of an equal-protection violation ...................................................................... 32


c. Diss's claims against the School District fail as a matter of law because he cannot show a custom, policy, or practice of equal-protection violations ........................................................... 33

C. Statutory claims ................................................................................................... 33



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1. The School District is entitled to summary judgment on Diss's claims under Title VII and ORS 659A.030 (Seventh and Eighth Claims for Relief). ................................................................................... 33

a. Diss cannot establish a prima facie case of religiously hostile work environment ............................................................ 34

b. Diss cannot establish a prima facie case of disparate treatment ...................................................................................... 34

(1) Diss's job performance was not satisfactory .................... 35

(2) There is no evidence that any similarly situated teachers engaged in conduct similar to Diss's and did not receive similar discipline ..................................... 35

(3) There is no specific and substantial evidence that the School District's legitimate, nondiscriminatory reasons are pretext for discrimination .............................. 36

c. Diss's requested accommodation is not for a practice or observance; thus, the School District had no accommodation obligation ........................................................... 36

2. The School District is entitled to summary judgment on Diss's whistleblower retaliation claims (Ninth and Tenth Claims for Relief) ...................................................................................................... 39

a. Diss cannot establish a prima facie case of whistleblower retaliation against the School District .......................................... 40

b. Even if Diss did engage in protected activity, there is no causal link between that activity and any adverse action ............ 41

D. Common-law claim .............................................................................................. 42

1. The School District is entitled to summary judgment on Diss's wrongful-discharge claim (Eleventh Claim for Relief) ........................... 42

a. Diss cannot establish a prima facie case of wrongful discharge ...................................................................................... 42

(1) Diss did not engage in any protected activity .................. 42

(A) "Inform[ing] and educat[ing] regarding Planned Parenthood and their methods and activities" is not an important public duty or societal obligation ................................................ 42



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(B) Diss did not have a "right to object to the defendants' TOP program." .................................. 43

(C) Oregon courts have not established that requesting a religious accommodation is an employment-related right of important public interest ....................................................... 43

(2) An adequate statutory remedy exists for the only possible basis for a cause of action for wrongful discharge .......................................................................... 44

(3) There is no evidence that any allegedly protected activity was a substantial factor in the decision to terminate Diss .................................................................. 44

IV. CONCLUSION .............................................................................................................. 45


TABLE OF AUTHORITIES

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Cases

Am. Family Ass'n, Inc. v. City & Cty. of San Francisco, 277 F3d 1114 (9th Cir 2002) .......................................................................................29, 31, 32

Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc., 435 F3d 1140 (9th Cir 2006) ...................................................................................................37

Anderson v. Liberty Lobby, Inc., 477 US 242, 106 S Ct 2505, 91 L Ed 2d 202 (1986) ...............................................................19

Banaitis v. Mitsubishi Bank, Ltd., 129 Or App 371, 879 P2d 1288 (1994)....................................................................................42

Berry v. Dep't of Soc. Servs., 447 F3d 642 (9th Cir 2006) .....................................................................................................30

Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F3d 971 (9th Cir 1998) ...............................................................................................21, 23

Brooks v. City of San Mateo, 229 F3d 917 (9th Cir 2000) .....................................................................................................34

Campbell v. Ford Industries, Inc., 274 Or 243, 546 P2d 141 (1976) .............................................................................................43

Celotex Corp. v. Catrett, 477 US 317, 106 S Ct 2548, 91 L Ed 2d 265 (1986) ...............................................................19

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US 520, 113 S Ct 2217, 124 L Ed 2d 472 (1993) .............................................................29

Connick v. Myers, 461 US 138, 103 S Ct 1684, 75 L Ed 2d 708 (1983) .........................................................20, 21

Coomes v. Edmond Sch. Dist. No. 15, No. 13-35747, 2016 WL 1128122 (9th Cir Mar. 23, 2016).....................................................20

Cornwell v. Electra Cent. Credit Union, 439 F3d 1018 (9th Cir 2006) .............................................................................................34, 35

Delaney v. Taco Time Int'l., Inc., 297 Or 10, 681 P2d 114 (1984) ...............................................................................................42


TABLE OF AUTHORITIES (continued)

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Desrochers v. City of San Bernardino, 572 F3d 703 (9th Cir 2009) ...............................................................................................20, 22

Downs v. Los Angeles Unified Sch. Dist., 228 F3d 1003 (9th Cir 2000) ...................................................................................................38

Empl't Div. v. Smith, 494 US 872, 110 S Ct 1595, 108 L Ed 2d 876 (1990) .......................................................29, 31

Estes v. Lewis and Clark College, 152 Or App 372, 954 P2d 792 (1998)................................................................................42, 44

Foster v. Arcata Assocs., Inc., 772 F2d 1453 (9th Cir 1985), overruled on other grounds by Kennedy v. Allied Mut. Ins. Co., 952 F2d 262 (9th Cir 1991) ....................................................................36

Garcetti v. Ceballos, 547 US 410, 126 S Ct 1951, 164 L Ed 2d 689 (2006) .............................................................20

Gibson v. Office of Att'y Gen., State of Cal., 561 F3d 920 (9th Cir 2009) .....................................................................................................20

Goehring v. Brophy, 94 F3d 1294 (9th Cir 1996) .....................................................................................................30

Gomez v. Vernon, 255 F3d 1118 (9th Cir 2001) .............................................................................................26, 28

Grossman v. S. Shore Pub. Sch. Dist., 507 F3d 1097 (7th Cir 2007) ...................................................................................................38

Hamdan v. Rumsfeld, 548 US 557, 126 S Ct 2749 Ed 2d 723 (2006) ........................................................................37

Harper v. Poway Unified Sch. Dist., 445 F3d 1166 (9th Cir 2006), vacated on other grounds, 549 US 1262 (2007) ......................29

Harris v. Forklift Sys., Inc., 510 US 17, 114 S Ct 367, 126 L Ed 2d 295 (1993) .................................................................34

Hawn v. Exec. Jet Mgmt., Inc., 615 F3d 1151 (9th Cir 2010) ...................................................................................................35

Heller v. EBB Auto Co., 8 F3d 1433 (9th Cir 1993) .......................................................................................................33



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Hemminghaus v. Missouri, 756 F3d 1100 (8th Cir 2014) ...................................................................................................22

Holien v. Sears, Roebuck and Co., 298 Or 76, 689 P2d 1292 (1984) .............................................................................................43

Huskey v. City of San Jose, 204 F3d 893 (9th Cir 2000) ...............................................................................................20, 24

Jeffers v. Gomez, 267 F3d 895 (9th Cir 2001) ...................................................................................26, 27, 28, 33

Johnson v. Poway Unified Sch. Dist., 658 F3d 954 (9th Cir 2011) .....................................................................................................24

Karam v. City of Burbank, 352 F3d 1188 (9th Cir 2003) .............................................................................................25, 28

Keene Corp. v. United States, 508 US 200, 113 S Ct 2035, 124 L Ed 2d 118 (1993) .............................................................37

Keyser v. Sacramento City Unified Sch. Dist., 265 F3d 741 (9th Cir 2001) ...............................................................................................25, 27

Larmanger v. Kaiser Found. Health Plan of the Nw., 895 F Supp 2d 1033 (D Or 2012), aff'd, 585 F App'x 578 (9th Cir 2014).........................40, 41

Lee v. City of Los Angeles, 250 F3d 668 (9th Cir 2001) .....................................................................................................32

Lindsey v. Clatskanie People's Util. Dist., No. 3:14-cv-485-SI, 2015 WL 6443290 (D Or Oct. 23, 2015) ...............................................40

McCollum v. Cal. Dep't of Corr. & Rehab., 647 F3d 870 (9th Cir 2011) .....................................................................................................25

McDonnell Douglas Corp. v. Green, 411 US 792, 93 S Ct 1817, 36 L Ed 2d 668 (1973) ...........................................................34, 35

Minger v. Hood Cmty. Coll. Dist., No. 3:14-cv-01460-SI, 2016 WL 475382 (D Or Feb. 4, 2016) .........................................40, 41

Monell v. Dep't of Soc. Servs. of City of N.Y., 436 US 658, 691 S Ct 2018, 56 L Ed 2d 611 (1978) .............................................27, 28, 32, 33



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Moran v. State of Wash., 147 F3d 839 (9th Cir 1998) ...................................................................................20, 21, 26, 31

Munroe v. Cent. Bucks Sch. Dist., 805 F3d 454 (3d Cir 2015).......................................................................................................22

Navarro v. Block, 72 F3d 712 (9th Cir 1995) .......................................................................................................33

Nees v. Hocks, 272 Or 210, 536 P2d 512 (1975) .............................................................................................43

Neighorn v. Quest Health Care, 870 F Supp 2d 1069 (D Or 2012) ............................................................................................34

Nelson v. Pima Cmty. Coll., 83 F3d 1075 (9th Cir 1996) .....................................................................................................21

Palmer v. Bd. of Educ. of City of Chicago, 603 F2d 1271 (7th Cir 1979) ...................................................................................................38

Peloza v. Capistrano Unified Sch. Dist., 37 F3d 517 (9th Cir 1994) .......................................................................................................30

Peters v. Betaseed, Inc., No.6:11-CV-06308-AA, 2012 WL 5503617 (D. Or. Nov. 9, 2012) .......................................40

Peterson v. Hewlett-Packard Co., 358 F3d 599 (9th Cir 2004) .....................................................................................................34

Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cty., Ill., 391 US 563, 88 S Ct 1731, 20 L Ed 2d 811 (1968) .............................20, 21, 22, 23, 26, 30, 31

Plumhoff v. Rickard, ___ US ___, 134 S Ct 2012, 188 L Ed 2d 1056 (2014) ...............................................26, 31, 32

Ray v. Tandem Computers, Inc., 63 F3d 429 (5th Cir 1995) .......................................................................................................36

Stormans, Inc. v. Wiesman, 794 F3d 1064 (9th Cir 2015) ...................................................................................................29

Strahan v. Kirkland, 287 F3d 821 (9th Cir 2002) .....................................................................................................27



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Thomas v. City of Beaverton, 379 F3d 802 (9th Cir 2004) .....................................................................................................44

Tiano v. Dillard Dep't Stores, Inc., 139 F3d 679 (9th Cir 1998) ...............................................................................................38, 39

Trans World Airlines, Inc. v. Hardison, 432 US 63, 97 S Ct 2264, 53 L Ed 2d 113 (1977) ...................................................................37

Turner v. Boy Scouts of Am., Inc., No. CIV-09-180-C, 2009 WL 2567962 (WD Okla Aug. 17, 2009) ........................................39

Ulrich v. City & Cty. of San Francisco, 308 F3d 968 (9th Cir 2002) .....................................................................................................20

Vasquez v. Cty. of Los Angeles, 349 F3d 634 (9th Cir 2003) ...............................................................................................35, 36

Vetter v. Farmland Indus., Inc., 120 F3d 749 (8th Cir 1997) .....................................................................................................39

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 US 252, 97 S Ct 555, 50 L Ed 2d 450 (1977) ...................................................................33

Wall v. Sentry Ins., No. 3:14-CV-01887-SI, 2015 WL 350683 (D Or Jan. 26, 2015) ............................................44

Wood v. Yordy, 753 F3d 899 (9th Cir 2014) .....................................................................................................25

Statutes

42 USC § 1983 ...............................................................................................................................19

42 USC § 2000e-2(a)(1).................................................................................................................36

Title VII of the Civil Rights Act of 1964 ...........................................................2, 33, 36, 38, 39, 44

ORS 342.895 ..............................................................................................................................4, 18

ORS 659A ..........................................................................................................................33, 36, 40

Other Authorities

29 CFR Section 1605 .....................................................................................................................38



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First Amendment .........................................................19, 20, 22, 23, 24, 25, 27, 28, 29, 30, 31, 38

Fed R Civ P 56 ...........................................................................................................................1, 19

Local Rule 7-1(a) .............................................................................................................................1

U.S. Constitution ............................................................................................................................27


Motion for Summary Judgment





CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7-1(a)

The undersigned certifies that counsel for defendants and counsel for plaintiff

made a good-faith effort through telephone conferences to resolve the matters described in this

motion and have been unable to do so.1

MOTION

In accordance with Fed R Civ P 56, defendants move for summary judgment on

all of Diss's claims against them. This motion is based on the declarations of Kellen Norwood

and Jeandre Carbone, the records and files of this case, and the following supporting

memorandum.

MEMORANDUM

I. INTRODUCTION

Portland Public School District (the "School District") offered a supplemental

dropout- and pregnancy-prevention program called the Teen Outreach Program ("TOP") at a

number of its high schools. TOP is funded by the United States Department of Health and

Human Services ("DHHS"), with approved curriculum that must not vary when implemented.

Community or nonprofit organizations implement TOP through DHHS grants. In Oregon,

Planned Parenthood Columbia Willamette ("PPCW") happens to be the community organization

that implements TOP. At Benson Polytechnic High School, the administration decided to make

TOP available during the 2012-2013 school year to students who had enrolled in a study hall

class called Tutorial. Plaintiff, William Diss, was one of the teachers assigned to teach Tutorial

that year, and for a few days the TOP presenters were authorized to visit all Tutorial classes to

briefly describe TOP and provide information and sign-up materials to interested students.

1 On April 11, 2016, this court granted Defendant's Unopposed Motion for Leave to Exceed Page Limit on their Motion for Summary Judgment. See Dkt. 30. This motion is within the page limit ordered.







Students who decided (with consent of their parents) to participate in TOP later attended

meetings in separate classrooms during their designated Tutorial period.

Despite originally having 179 allegations and 11 claims against 12 defendants a

core—indeed, the core—of Diss's case is that he was entitled to a religious accommodation

because he disagrees with PPCW. Diss's religious-accommodation theory takes the obligation of

religious accommodation into uncharted waters that would extend the accommodation obligation

beyond the legal requirements of Title VII of the Civil Rights Act of 1964. Title VII contains an

obligation to accommodate religious observations and practices; it is not an entitlement to avoid

people and ideas with which one has a religious disagreement, which is the premise underlying

Diss's religious-accommodation claim.

For organizational purposes, Diss's religious-accommodation claim is discussed in

the order set forth in his complaint. As for the complaint as a whole, Diss faces legal hurdles

under the undisputed facts with respect to each claim. His constitutional claims are not

cognizable on their face, or else they run into qualified-immunity and municipal-liability barriers

with respect to the various defendants. His statutory claims face similar problems.

Throughout his career, Diss has been warned to not call students things such as

"bum," "slacker," or "loser," or otherwise demean students. It is undisputed that despite those

warnings, the School District continued to receive complaints that Diss harassed and bullied,

culminating in the 2012-2013 school year. In that year, Diss received a reprimand, a one-day

suspension and final warning, and another three-day suspension and final warning before finally

being dismissed. These disciplinary actions occurred, for, among other things, actively

undermining TOP, as well as mistreatment that included telling freshman girls that they would

"end up on 82nd Street" (referring to drug use and prostitution) if they participated in TOP, telling

a student that he was disgusting, and embarrassing a student in a test problem by depicting him

in a burning building. Ultimately, this misconduct, as one might suspect, led to Diss's dismissal

from employment. The reach with which Diss asserted wrongdoing—looking for liability







anywhere against anyone—underscores that he is attempting to distract from the undisputed

facts—undisputed facts that show the remaining defendants are entitled to summary judgment.2

II. MATERIAL FACTS

A. Diss is hired at Benson as a career and technical education instructor.

Benson offers Career and Technical Education ("CTE") opportunities for students

who respond best to an applied, hands-on learning experience. Declaration of Jeandre Carbone

("Carbone Decl."), ¶ 2. The School District hired Diss as a CTE instructor in electronics and

computer science at Benson in 2002. Deposition of William Diss, Volume I ("Diss Dep. I")

at 16:10-16.3

B. The School District addresses Diss's pattern of unprofessional conduct toward students and parents.

In 2006, the School District began addressing Diss's pattern of unprofessional

conduct toward students and parents:

In September 2006, then-principal Christie Plinski issued Diss a written reprimand after he failed to heed previous verbal warnings about his use of demeaning language such as "bum," "loser," and "slacker" with students. Diss Dep. I at 219:2-220:4, Ex. 20.

In 2007, then-Vice Principal Susan Schenck gave Diss a written reprimand and directed him, among other things, to "stop using demeaning terms such as loser, slacker, ugly and stupid." Diss Dep. I at 225:1-227:7, Ex. 20.

Twice in 2009, Vice Principal Barry Phillips issued Diss letters of warning for similar conduct. Diss Dep. I at 227:8-231:10, Ex. 20.

Despite having been directed not to demean students, Diss still believes that "it's great" for

teachers to demean students. Diss Dep. I at 223:23-224:4.

2 Diss submitted a stipulated notice of dismissal on April 21, 2016, dismissing from this action defendants Carole Smith, Barry Phillips, Pam Knowles, Greg Belisle, Ruth Adkins, Matt Morton, Tom Koehler, and Bobbie Regan. On May 3, 2016, Diss submitted a stipulated notice of dismissal with respect to his fifth claim for relief (substantive due process) and his sixth claim for relief (procedural due process). 3 Deposition excerpts and exhibits are attached as Exhibit 1 to the Declaration of Kellen Norwood ("Norwood Decl."). Deposition exhibits referred to in this motion were numbered continuously throughout all depositions. When a citation is to an exhibit only, and not any specific deposition testimony, the exhibit will be cited as "Dep. Ex. __."







C. In 2008-2009, Diss is placed on a plan of assistance for ineffective classroom performance.

At the end of the 2008-2009 school year, then-principal Steve Olczak placed Diss

on a plan of assistance to address deficiencies in Diss's classroom performance that Olczak had

observed while evaluating Diss.4 Diss Dep. I at 74:18-75:2; Deposition of William Diss,

Volume II ("Diss Dep. II"), at 357:16-358:1, Ex. 48. Of particular concern, Olczak's evaluation

noted that Diss's instructional methodology was rigid and not engaging to the variety of students

in his class, and that students did not respond well to Diss's "confrontational and derogatory"

communication style. Dep. Ex. 48. Although Diss grieved the evaluation, the School District

settled a number of teacher grievances as a collateral matter to reach a financial agreement with

the teachers' union, resulting in the removal of Diss's evaluation from his file. Deposition of

Brock Logan ("Logan Dep.") at 21:25-24:25. The settlement did not reflect any determination of

the merits of the grievance. Id.

D. Diss is unassigned from Benson during the summer before Carol Campbell takes over as principal.

In summer 2011, the School District reduced the number of full-time teachers at

Benson, and Diss was "unassigned," meaning that he would not necessarily teach at Benson the

next year. Diss Dep. I at 32:10-16. Carol Campbell became principal at Benson leading into the

2011-2012 school year. Deposition of Carol Campbell ("Campbell Dep.") at 26:8-27:11. She

was not familiar with Diss before coming to Benson, id., but Human Resources ("HR") offered

to provide her with Diss as a half-time teacher who would not count against her staffing

allowance. Logan Dep. at 34:11-35:11. Campbell's understanding at the time was that Diss

would be assigned to Benson only temporarily, so she believed that accepting him would not

affect her choice of teachers for permanent positions later. Campbell Dep. at 69:3-70:7, Ex. 137.

She then learned that Diss did have seniority rights at Benson. Id. Campbell was concerned

4 Teachers are employed on two-year rolling contracts. Plans of assistance, also known as programs of assistance for improvement, are tools defined by statute to address performance concerns. See ORS 342.895.







because Diss's seniority rights would mean that, in the event of future layoffs, Diss would be

able to "bump" a less senior, though perhaps more effective, teacher, and Campbell understood

that Diss was not an effective math teacher. Id.

E. Campbell develops concerns about Diss's performance during the 2011-2012 school year.

When Diss returned to Benson in the 2011-2012 school year, he was on a

half-time appointment, teaching study hall and an online credit-recovery program. Campbell

Dep. at 89:6-90:4. In October 2011, Benson's staffing allowance increased, and Campbell began

searching for a full-time math teacher. Id. Campbell learned that HR considered Diss a

candidate for the math position and voiced a number of concerns about his competence as a math

teacher and her preference for another, more qualified math teacher. Id., Ex. 137. Phillips had

also recommended that Campbell avoid placing Diss in math class based on the frequency and

significance of student complaints and transfer requests he had received whenever Diss was

teaching math. Deposition of Barry Phillips at 146:9-147:14. In an e-mail to HR, Campbell

noted that (1) she worried that Diss was "incapable of being an effective teacher" and had serious

concerns about his ability to teach essential subjects such as math; (2) he failed to follow

directives to teach his class in the designated classroom; and (3) she understood that Diss had

demonstrated a pattern of problematic interactions with students. Campbell Dep. at 69:3-9,

Ex. 137. In October 2011, Campbell eventually hired her preferred candidate for the math

position, and Diss was given a full-time appointment that included teaching computer science

courses. Campbell Dep. at 89:6-90:4.

In the early part of the school year, Campbell and her two Vice Principals,

Phillips and Jeandre Carbone (who was also new to Benson that year), began dividing up the

teachers that the HR computer system indicated were due for formal evaluation, and Diss was

assigned to Campbell.5 Campbell Dep. at 52:5-55:6. After observing one of Diss's computer 5 Teachers are formally evaluated every other year, but administrators can observe teachers informally and provide feedback at any time. Campbell Dep. at 81:21-83:11.







science classes on November 14, 2011, Campbell developed specific concerns about Diss's

teaching. Campbell Dep. at 58:13-64:22, Ex. 188. She explained those concerns in an

observation summary, which included lack of clear learning objective, lesson planning,

organization, and pacing, and she recommended resources for improvement. Id. Campbell was

particularly concerned about Diss's lesson planning because he had not responded to her request

at the beginning of the year, made to all Benson teachers, to submit lesson plans for her to

review. Id. Campbell later learned that Diss was not due for formal evaluation during the 2011-

2012 school year because he had been evaluated the year before. Id. She met with Diss to

discuss continuing with observations informally so that Campbell could provide additional

support to Diss, and he agreed. Id. Campbell continued to informally observe Diss's teaching

and later noted that Diss's lack of organization, lesson planning, and preparation led to

ineffective use of class time. Campbell Dep. at 138:6-142:10.

Additionally, an unusually high number of students dropped or transferred out of

Diss's computer science class, which raised concerns about Diss's in-class performance and

interaction with students. Campbell Dep. at 92:9-94:12. Also, during the 2011-2012 school

year, Campbell had received a complaint by a Benson parent about Diss's use of religious

expressions in e-mails, and Diss had also sent Campbell a lesson plan that said "God Bless."

Campbell Dep. at 28:5-25. Campbell instructed Diss to stop using religious expressions such as

"God Bless" in professional communications with Benson staff, students, and parents. Id.

Generally, Campbell and Diss had a professional and cordial relationship at the end of the

2011-2012 school year, though Campbell continued to have concerns about Diss's performance,

including continued deficiencies in lesson planning and organization. Campbell Dep.

at 113:2-21.







F. Diss exhibits a pattern of unprofessional conduct early in the 2012-2013 school year and continually violates administrative directives.

Diss was assigned to teach computer science and Tutorial classes at the beginning

of the 2012-2013 school year (Tutorial was similar to study hall). Campbell Dep. at 106:12-22.

During that year, the School District began offering TOP to Tutorial students; it had been offered

in health class the previous year. Campbell Dep. at 150:22-25. Benson administrators chose

Tutorial for TOP because Tutorial was non-instructional time, so it would be less disruptive to

students' academic progress. Deposition of Jeandre Carbone ("Carbone Dep.") at 74:22-76:8.

Students who participated in TOP were dismissed from Tutorial to attend TOP meetings in a

different classroom. Deposition of Austin Lea ("Lea Dep.") at 49:3-6.

TOP is a grant-funded program promoted by DHHS, Office for Adolescent

Health, aimed at reducing risky behaviors such as teen pregnancy and school dropouts. Lea Dep.

at 23:9-20; 39:5-40:11. TOP operates through "replication partners," which are community or

nonprofit organizations that must implement the DHHS-approved curriculum with fidelity. Lea

Dep. at 14:12-15:21; see also http://teenoutreachprogram.com (last visited May 4, 2016). In

2010, PPCW was awarded a grant to implement TOP in Portland-area schools. Deposition of

Jennifer Melo ("Melo Dep.") at 13:1-14:8. The program was launched in individual schools

during the 2011-2012 school year and ended because grant funding expired after the 2014-2015

school year; Benson was one of the first schools to implement TOP under the grant. Lea Dep.

at 23:9-24:11; Melo Dep. at 13:1-14:8.

TOP is a nationally replicated program focused on youth empowerment that

blends community-service learning with a curriculum called "Changing Scenes."6 Lea Dep.

at 23:10-20. TOP and the Changing Scenes curriculum are owned by the Wyman Center, a

6 A significant part of the 2010 grant involved gathering data to evaluate TOP's efficacy in reducing high-risk behavior in teens, and to aid in that evaluation, TOP was offered alongside a program called "Community Voices," which does not implement the Changing Scenes curriculum or the community-service learning component. Lea Dep. at 40:15-41:5. Community Voices functioned as a "control group" against which TOP could be compared. Id.







national charity that works to empower teens from economically disadvantaged circumstances to

lead successful lives and build strong communities. See http://wymancenter.org/about-wyman/

(last visited May 4, 2016). TOP is delivered by facilitators who have received training

authorized by the Wyman Center, and the facilitators have discretion to select the sections of the

curriculum most appropriate to the individual school at which it is offered. Melo Dep.

at 15:20-16:20. But the sections that are selected must be delivered, without variation, according

to the Wyman program. Lea Dep. at 14:12-15:21. Although there is an optional component on

sexuality, it was not included in the curriculum offered to Benson students during the 2012-2013

school year because sexual health curriculum was provided in health class. Campbell Dep.

at 155:4-9; Lea Dep. at 60:3-61:9.

On September 11, 2012, Carbone sent an e-mail to Diss and the other Tutorial

teachers explaining what TOP was, that it had operated in health classes at Benson the previous

year, and that TOP facilitators would be visiting Tutorial classrooms on September 17 and 18 to

give presentations to the students about the program and how they could sign up. Diss Dep. I

at 87:10-88:4, Ex. 6. Carbone's e-mail instructed Tutorial teachers to let her know if they had

any questions; Diss did not ask any questions. Diss Dep. I at 91:24-92:2.

1. Diss refuses to allow the scheduled TOP presentations in his classroom on September 17, 2012.

On September 17, TOP facilitator Austin Lea entered Diss's Tutorial room

carrying TOP-related supplies, greeted Diss, and reminded him that Carbone had authorized the

visit. Diss Dep. I at 94:17-95:19. Diss asked for Lea's business card, which Lea provided, and

Diss learned that Lea worked for PPCW. Id. Lea and other presenters started setting up, putting

posters on the walls, and explaining the program. Diss Dep. I at 110:10-111:14. The posters

said nothing about Planned Parenthood or sexuality. Diss Dep. I at 117:6-118:2, Ex. 8. During

the presentations, Diss took some documents from one of the boxes Lea had brought, which

included a letter to parents. Diss Dep. I at 94:17-95:19; 110:6-9, Ex. 7. The letter indicated that







TOP is an "evidence-based, best practice youth development program[] funded by the Office of

Adolescent Health at the US Department of Health and Human Services, and administered by the

Northwest Coalition for Adolescent Health and its member Planned Parenthood Columbia

Willamette." Dep. Ex. 7. The letter also explained that TOP focused on "supporting healthy

behaviors," "developing life skills," and "finding a sense of purpose." Id. Nothing in the letter

mentioned or suggested that sexuality or abortion was a covered topic. Id.

After learning that Lea worked for PPCW, Diss interrupted Lea and asked him to

step outside the classroom, which Lea did. Diss Dep. I at 96:2-8. Diss told Lea that he did not

want Lea in his classroom because he worked for Planned Parenthood, and Lea later reported to

Campbell that Diss had said Planned Parenthood was a racist organization that practices

eugenics. Diss Dep. I at 98:21-100:1; Campbell Dep. at 176:2-15. While Diss was confronting

Lea in the hallway, another TOP presenter went down to the office to seek help, and Campbell

accompanied the presenter back to Diss's classroom. Campbell Dep. at 151:16-152:11.

Campbell asked Diss to explain why he had interrupted the presentation.

Campbell Dep. at 152:9-153:1. Although Diss knew almost nothing about TOP, he assumed that

it was against his religious beliefs, and Diss told Campbell that he opposed the program. Diss

Dep. I 102:2-9, 104:2-9, 106:20-107:19; Campbell Dep., 153:12-154:14. Campbell asked Diss

to talk about the situation in her office so that she could get more information, but Diss would

not discuss the matter without union representation. Campbell Dep. at 153:12-154:14. At the

time, Campbell was unfamiliar with Diss's religious beliefs. Id. Campbell was not aware that

TOP presenters worked for Planned Parenthood until after the first day of presentations when she

met the presenters and their supervisors, and they introduced themselves as Planned Parenthood

employees. Campbell Dep. at 151:4-12.

The evening of September 17, Campbell sent Diss an e-mail explaining that while

she respected his religious beliefs, TOP was an approved School District program that was not

religious in nature and that he needed to allow the presentations. Campbell Dep. at 156:18-157:7,







Ex. 9. She scheduled a follow-up appointment for Wednesday, September 19, to discuss Diss's

concerns with his representatives present. Dep. Ex. 9. Although Diss had done no research

about TOP, he was convinced that "Planned Parenthood was using the program for recruitment

to try to convince children that Planned Parenthood was an okay organization * * * and to use

those children as customers." Diss Dep. I at 144:8-146:10. To this day, Diss has no idea whether

Planned Parenthood had anything to do with the development of the TOP curriculum. Diss Dep. I

at 145:2-5. Nevertheless, Diss took action to reduce the likelihood that students would sign up

for TOP. Diss Dep. I at 134:24-135:16.

2. Diss continues to attempt to thwart TOP and violates administrative directives.

On September 18, 2012, TOP presenters came into Diss's sixth-period Tutorial.

Diss Dep. I at 138:12-139:17. Again, Diss obstructed the presentations, and again, one of the

presenters came to the office to ask for Campbell's assistance. Id.; Campbell Dep. at 164:17-

166:3. When Campbell returned to Diss's classroom, she observed him verbally harassing the

presenters by continually asking them to repeat what they had said, asking them who they

worked for multiple times (despite having learned that they worked for PCCW the day before),

and following them around the room. Id.; see also Campbell Dep. at 176:2-18, Ex. 15.

On September 19, Campbell, Carbone, and HR Regional Director Frank Scotto

met with Diss and his attorney, Sharon Nelson, who appeared telephonically. Diss Dep. I

at 159:1-16. Diss spoke at length about his view that TOP dealt with family planning,

contraception, and abortion, and School District representatives explained that he had

misunderstood the presentations and that TOP was not religious in nature. Deposition of Sharon

Nelson ("Nelson Dep.") at 23:19-24:12; 25:15-26:9. At the conclusion of the meeting, School

District representatives directed Diss to permit the TOP presentations in his classroom, and his

attorney told him to follow the directive. Nelson Dep. at 29:8-16. Diss was also directed not to

do anything that could impede TOP. Diss Dep. I at 202:6-9. None of the School District







representatives understood Diss to be requesting a religious accommodation. Campbell Dep.

at 170:1-7; Carbone Dep. at 117:21-118:21; Deposition of Frank Scotto ("Scotto Dep.") at 55:11-18.

Later on that same day, during the TOP presentation in third period, Diss spent an

excessive amount of time taking attendance and did not finish until 22 minutes into the period.

Carbone Dep. at 164:19-164:24, Ex. 17; see also Diss Dep. I, 202:6-23. Diss does not deny that

he took an excessive amount of time for roll to purposefully delay the presentation. Diss Dep. I

at 171:2-5. Carbone visited Diss's classroom to verify that Diss was abiding by the directives

regarding the TOP presentations, and when she began to introduce the TOP presenters, Diss

interrupted, asking in a loud and angry voice whether he could finish taking attendance. Carbone

Dep. at 87:22-93:9. When Carbone indicated that she thought he had finished, Diss's voice got

louder and he said, "What, are you saying I'm slow?" Id. After the presentation was finished,

Diss began questioning Carbone in front of students about whether she thought he had been rude;

when Carbone told Diss that they could discuss the matter another time, Diss got very close to

Carbone and responded in a raised voice, "I think I have a right to know if you think I was rude

or not." Carbone Dep. at 128:14-129:12; 164:19-24, Ex. 17. Carbone felt intimidated and

harassed by Diss's conduct. Id.

Diss's next tutorial that day was fifth period, and Carbone returned to ensure that

the presentation proceeded. Dep. Ex. 17. Diss again took attendance slowly and did not finish

until 20 minutes into the period; when he finished, the presenters began. Id. Diss cut them off

and asked Carbone whether he could address the class first. Id. He then told the students that he

was sorry to disappoint them, but their lesson on multiplication tables would be postponed

because their guests were there to talk to them, and the guests had priority. Id. Because several

students had recently asked to drop Tutorial with Diss, complaining that he was trying to turn it

into a math class (Tutorial was not an instructional class), Carbone asked Diss to discuss with her

the nature of Tutorial in private after his comment about the lesson on multiplication tables. Id.

When Carbone reminded Diss that the focus of the class was independent work, and not math







instruction, Diss repeatedly interrupted her, saying in a loud voice, "Put it in writing," after

Carbone reminded him that the description of Tutorial was in the course description, and "Put it

in writing" again after she reminded him that she had sent him the expectations for Tutorial

teachers. Id. Carbone gave up and left. Id.

Shortly after returning to her office, Carbone received a call from Diss; he stated

that the TOP presenters had asked him a question, that he was not supposed to talk to them, and

that he needed Carbone to come to his class and answer their question and tell him what to do.

Carbone Dep. at 164:19-166:8, Ex. 17. Diss abruptly hung up. Dep. Ex. 17. When Carbone

arrived at Diss's class, TOP presenters told her that they had asked Diss whether a particular

student was present, and that he had turned and walked away. Id.

Campbell followed up on the September 19 meeting with a written reprimand on

September 26, 2012. Diss Dep. I at 196:10-16, Ex. 15. The reprimand detailed interference with

TOP presenters on September 17 and 18, directed Diss not to interfere with TOP, and instructed

him to notify administrators if he had difficulty complying so that they could better support him.

Diss Dep. I, Ex 15.

3. Diss is instructed not to use religious expressions in professional communication with staff, students, and parents.

On September 26, 2012, after receiving an e-mail from Diss signed "God Bless,"

Carbone asked Diss to not use religious expressions in school communications. Carbone Dep.

at 169:11-170:14, Ex. 14. Diss had previously been informed by Olczak that a parent had

complained about Diss's use of religious language, and Campbell had also informed Diss that a

parent had complained about Diss's using religious language. Diss Dep. I at 50:24-53:21;

Campbell Dep. at 28:5-25. Campbell asked Diss not to use religious expressions in professional

communications with staff, students, and parents. Id. The directive regarding religious language

applied to professional communications and did not forbid Diss from using religious language in







personal communications or communications with other teachers or staff who were comfortable

with such language. Campbell Dep. at 205:25-207:24, 210:14-211:10.

4. Diss continues to engage in unprofessional conduct and violate administrative directives.

On Friday, October 5, 2012, School District administrators met with Diss, his

union representative, and his personal attorney to discuss Diss's conduct toward Carbone after the

September 19 meeting. Diss Dep. I at 204:19-205:12. The meeting addressed conduct described

as "disrespectful and/or unprofessional." Diss Dep. I at 206:17-23. The School District followed

up with a memorandum on Monday, October 8. Diss Dep. I at 205:23-206:7, Ex. 17.

Later the evening of October 5, Diss confronted Carbone at a Benson football

game. Carbone Dep. at 179:15-183:5. As Carbone was sitting in the front row of the bleachers,

Diss approached from the ground level, stood less than two feet in front of her, and yelled,

sarcastically, that he was sorry she thought he had been rude, but that he thought she had been

really rude to him, too. Id. Carbone did not respond, shocked that he would behave that way

toward her after the meeting they had had earlier that morning. Id. At least two parents

observed the interaction and considered Diss's conduct unprofessional; one wrote an e-mail to

complain, describing Diss's conduct as "arrogant and rude." Dep Ex. 19; Campbell Dep.

at 220:12-222:16, Ex. 169. Diss, however, testified that he was not concerned with whether

other people could see the communication. Diss Dep. I at 208:1-24. Carbone wrote an e-mail to

Campbell about the event, describing Diss's behavior as disrespectful, undermining, and

aggressive. Dep. Ex. 19. Campbell, Carbone, and Scotto met with Diss, his union

representative, and his personal attorney on October 15 to address his conduct at the football

game on October 5. Diss Dep. I at 213:14-214:3, Ex. 18. Diss received a copy of Carbone's e-

mail at the October 15 meeting and was informed of the parent complaint. Id.; Diss Dep. I

at 214:9-215:1. Because Diss had been directed the very day of the football game to be

professional, the School District followed up on the October 15 meeting with a written Final







Warning on October 18. Dep. Ex. 18. The Final Warning directed Diss to "refrain from

behavior that is unprofessional, intimidating, and/or harassing." Id.

G. The School District receives complaints about Diss's classroom performance and conduct.

Diss was due for a formal evaluation for 2012-2013. Campbell Dep.

at 117:18-120:2. Because he had demonstrated poor lesson planning in past observations, he was

assigned to Carbone for evaluation because she had particular expertise in planning and

preparation. Id. In addition to planning and preparation, Carbone focused on helping Diss

improve his relationships with students and "use of respectful, appropriate kinds of language

with kids." Campbell Dep. at 126:21-127:2.

Carbone observed Diss's Introduction to Computers class in October 2012;

afterward, she expressed concerns about Diss's teaching and provided notes and feedback with

specific recommendations. Carbone Decl., ¶ 3, Ex. 1. In November 2012, Diss took over

teaching Advanced Algebra and Geometry for teachers whose student loads needed to be

reduced as a result of a contract arbitration with the teachers' union.7 Carbone Decl., ¶ 4.

Consequently, Carbone observed each of those classes—Advanced Algebra on November 15 and

Geometry on November 16, 2012. Carbone Decl., ¶ 5. Again, Carbone expressed concerns,

provided feedback, and made specific recommendations. Id., Exs. 2, 3, respectively. When Diss

started teaching math, Carbone began receiving a high volume of complaints from both parents

and students about Diss's rigid instructional style; the complaints were frequently accompanied

by requests to transfer out of his classes. Carbone Decl., ¶ 6, Ex. 4. Out of concern for student

learning, Carbone returned to Diss's math classes on November 28 and 29, following up again

with her observation notes. Carbone Decl., ¶ 7, Exs. 5, 6, respectively. She observed during

7 Although Campbell had planned to hire a half-time math teacher to take on these classes, Campbell was instructed by HR to put Diss in those classes because he was already in the building and licensed to teach math. Campbell Dep. at 85:8-24.







both of those classes that Diss had failed to implement most of her recommendations. Carbone

Decl., ¶ 8.

On December 6, 2012, Carbone issued Diss a letter of concern regarding

classroom instruction; this time, recommendations that had previously gone unheeded were

given as directives. Carbone Decl., ¶ 9, Ex. 7. Some of Carbone's chief concerns addressed in

the letter were Diss's poor management of class time (students often had nothing to do while

Diss was engaged in noninstructional activities such as taking attendance or handing back or

collecting work); Diss's lack of differentiation in instructional methodology (Diss spent much of

his class time writing extensive notes on the board, reading them aloud, and having students

copy them); and Diss's lack of lesson planning (Diss rarely, if ever, communicated learning

objectives to students at the beginning of class or had a specific plan for the material to be

covered that day). Id. Both Campbell and Carbone were frustrated by Diss's failure to develop

lesson plans, because that had been a focus since they arrived at Benson the year before, and

Diss ranked among the least compliant teachers in responding to Campbell's request to submit

lesson and unit plans. Campbell Dep. at 109:21-112:6; Carbone Decl., ¶ 10.

As a result of her observations, as well as Diss's failure to respond to many of her

suggestions, Carbone recommended that Diss's contract be non-extended and he be put on a plan of

assistance when she completed his formal evaluation in February 2013. Carbone Decl., ¶ 11, Ex. 8.

H. The School District receives reports of unprofessional conduct by Diss toward his students.

From November 2012 to January 2013, multiple students complained to Carbone

about Diss's engaging in unprofessional conduct. Dep. Ex. 33. One student reported that Diss

had told her and a friend that participating in TOP would lead them to "82nd Avenue," a

reference to drug use and prostitution. Campbell Dep. at 242:9-243:12; see also Dep. Ex. 30.

At least two other students complained that Diss had said to them, in a loud voice, "shut your

mouth," and one of them complained that Diss had been "in his face" at the time. Dep. Ex. 33.







Campbell, Carbone, and Scotto met with Diss, his union representative, and his personal attorney

to discuss these complaints on January 11, 2013. Id. At the January 11 meeting, Diss was

notified that multiple students had complained about his unprofessional conduct toward them

during Tutorial. Id. Diss and his union representative suggested that the students were making

up stories about him and suggested that the other Tutorial teacher, Josh Curtis, would have

noticed if Diss had engaged in the complained-of conduct. Carbone Dep. at 203:4-204:12; Dep.

Ex. 33. After that meeting, Carbone asked Curtis to think whether he had seen any conduct by

Diss that was concerning, and if so, to write it down for her in an e-mail. Carbone Dep. at 203:4-

205:1; see also Deposition of Josh Curtis ("Curtis Dep."), 81:19-82:1. Curtis wrote a report

confirming that Diss had engaged in the complained-of conduct and cited additional examples of

Diss's losing his temper, yelling at students, and generally demonstrating an inability to manage

student conduct. Curtis Dep. at 77:21-82:17, Ex. 34. A follow-up meeting with School District

administrators was scheduled for February 12, 2013, during which Diss was notified of the

evidence and given the opportunity to respond. See generally Dep. Ex. 33. He admitted to some

of the conduct, but denied other instances. Id. Campbell considered his explanation and again

decided that discipline was warranted. Id.

As a result of this investigation, Diss was given a second final warning on

February 28, 2013, which included clear directives that Diss must cease engaging in

unprofessional conduct toward students. Diss Dep. II at 288:18-289:3, Ex. 33.

I. Diss fails to comply with administrative directives regarding professional conduct.

Between the February 12, 2013, meeting and the date that the second final

warning had been finalized and delivered to Diss on February 28, Diss confronted Campbell

after a staff meeting in which she had shared a personal story on February 20, 2013. Campbell

Dep. at 263:8-264:23, Ex. 38. Diss approached Campbell, invaded her personal space, and, red-

faced and spitting, addressed her with a raised voice and an accusatory, unprofessional tone. Id.

He did this in front of other staff members and administrators, and when Campbell attempted to







respond, he turned and walked away. Id.; see also Ex. 39. This conduct violated directives that

Diss had received on October 8, 2012, to communicate with colleagues and administrators in a

respectful, professional tone, to reschedule a conversation if it became emotional, and to not

publicly question the judgment of administrators and colleagues. Dep. Ex. 17. This conduct also

violated directives that Diss had received on October 18, 2012, to maintain a professional tone

and demeanor with administrators and colleagues and to not use a loud and angry tone of voice

or aggressive body language. Dep. Ex. 18.

On March 1, 2013, a student reported that Diss had featured him in a question on

a math test in a manner that had offended the student. Campbell Dep. at 276:16-277:6; see also

Deposition of Amy Slaughter ("Slaughter Dep.") at 45:6-48:12, Ex. 32. Specifically, the test

question placed the student, Ivan, by name in a burning building with a ladder that was too short

to allow him to escape from the fire. Id. The student reported to Campbell that Diss had said "so

sue me" when the student informed Diss that he was offended by the test question. Campbell

Dep. at 276:16-277:6. In addition to being addressed during the January 11 and February 12,

2012, meetings, Diss had received directives regarding disrespectful and demeaning treatment of

students in 2006, in 2007, and twice in 2009. Dep. Ex. 20.

On March 4, 2013, Diss interrupted a faculty meeting to interject his own personnel

issues. Campbell Dep. at 267:7-269:4; see also Ex. 38. As Campbell addressed faculty about the

importance of teachers' verifying their students' whereabouts because students did not always end

up where they said they were going, Diss stood and said that he was being disciplined for things

that students said he had done, yet Campbell was saying that students do not always tell the truth.

Id.; Diss Dep. II 308:17-22. Two faculty members who had been present at that meeting

complained to Campbell about Diss's disruptive behavior at the March 4 meeting. Slaughter

Dep. 54:20-55:15, Ex. 36; Dep. Ex. 37. Diss had previously been directed to address his personnel

issues with administrators in a confidential manner. Dep. Ex. 18.







J. Diss is dismissed from employment after failing to correct his unprofessional conduct.

On March 19, Diss and his union representative along with Scotto, Campbell, and

Carbone met to discuss the violations of administrative directives and expectations. Diss Dep. II

at 311:21-312:7, Ex. 38; Scotto Dep. at 254:22-24. After that meeting, Campbell, Carbone, and

Scotto met with the School District's Chief HR Officer, Sean Murray, to evaluate the evidence,

as well as Diss's explanations. Scotto Dep. at 268:9-269:17. That group determined to

recommend to the superintendent that Diss be dismissed from employment. Id. That decision

was made based on a history of unprofessional conduct and persistent violations of

administrative directives, including:

Previous discipline for demeaning and disrespectful conduct toward students in 2007, 2008, and 2009. Dep. Ex. 20.

A written reprimand on September 26, 2012, for unprofessional conduct toward TOP presenters. Dep. Ex. 15.

A final warning on October 18, 2012, for unprofessional conduct toward administrators. Dep. Ex. 18.

A second final warning on February 28, 2013, for unprofessional conduct toward students. Dep. Ex. 33.

Ongoing unprofessional conduct prompting complaints from students, teachers, and parents, as well as direct inappropriate conduct toward both Carbone and Campbell.

In accordance with the process for dismissal of certain educators in ORS 342.895, the

superintendent sent Diss a letter on May 28, 2013, notifying him that she would recommend his

dismissal to the school board. Diss Dep. II at 318:25-319:9, Ex. 39. Following a meeting between

Diss and administrators and a later requested hearing in front of a hearings officer, the school board

approved the superintendent's recommendation on December 16, 2013, terminating Diss's

employment effective December 17, 2013. Diss Dep. II at 319:13-17, 321:13-17, 322:10-323:24,

Ex. 41.







III. ARGUMENT

A. Summary judgment.

Summary judgment is appropriate if there is no genuine issue as to any material

fact and the record demonstrates that the moving party is entitled to judgment as a matter of law.

Fed R Civ P 56(a). A court should enter summary judgment against a party that fails to make a

showing sufficient to establish the existence of an element essential to that party's case and on

which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 US 317,

322, 106 S Ct 2548, 91 L Ed 2d 265 (1986). "The mere existence of a scintilla of evidence"

favoring the nonmoving party will not prevent entry of summary judgment. Anderson v. Liberty

Lobby, Inc., 477 US 242, 252, 106 S Ct 2505, 91 L Ed 2d 202 (1986). Instead, to withstand a

summary judgment motion, the nonmoving party must offer evidence from which "a fair-minded

jury could return a verdict for the [party]." Id.

B. Constitutional claims.

Diss asserts a variety of constitutional violations under 42 USC § 1983

("Section 1983") and, without describing any particular theory of either individual or municipal

liability, attributes each violation to all defendants. The individual defendants are Carol

Campbell, Jeandre Carbone, and Frank Scotto, and the School District is the sole municipal

defendant. For each claim, this motion will first address the substantive claim against all

defendants and then separately address issues related to the individual defendants' qualified

immunity and the lack of evidence to support municipal liability of the School District.

1. All defendants are entitled to summary judgment on Diss's First Amendment―Free Speech claim (First Claim for Relief).

Diss claims that the School District "target[ed] him for his expression of his

beliefs and opinions," and violated his constitutional rights "in taking adverse action against

[him] in his employment, including termination, because of [his] exercise of his right to speak

freely and publically and in association with others." Compl., ¶ 66.







a. Diss cannot establish a prima facie case of retaliation based on protected speech.

In order to establish a prima facie case of retaliation under the First Amendment,

Diss must show that (1) he was subjected to an adverse employment action, (2) he engaged in

protected speech, and (3) the protected expression was a "substantial motivating factor" for the

adverse action. Ulrich v. City & Cty. of San Francisco, 308 F3d 968, 976 (9th Cir 2002); see

also Huskey v. City of San Jose, 204 F3d 893, 899 (9th Cir 2000).

(1) Diss did not engage in any protected speech.

As a threshold matter, the First Amendment protects only speech made "as a citizen

upon matters of public concern," and not "upon matters only of personal interest." Connick v.

Myers, 461 US 138, 147, 103 S Ct 1684, 75 L Ed 2d 708 (1983); see also Moran v. State of Wash.,

147 F3d 839, 846 (9th Cir 1998). And as a matter of law, an employee does not speak as a citizen

when he speaks "pursuant to [his] official duties," because such speech "owes its existence" to the

employee's "professional responsibilities" and "simply reflects the exercise of employer control

over what the employer itself has commissioned or created." Garcetti v. Ceballos, 547 US 410,

421-22, 126 S Ct 1951, 164 L Ed 2d 689 (2006). For example, as the Ninth Circuit recently ruled,

a teacher engaging in speech that relates to his or her job duties is not engaging in speech protected

by the First Amendment, "no matter how much a matter of public concern it might be." Coomes v.

Edmond Sch. Dist. No. 15, No. 13-35747, 2016 WL 1128122, at *3 (9th Cir Mar. 23, 2016).

Whether speech addresses a matter of public concern is a legal question. Gibson v.

Office of Att'y Gen., State of Cal., 561 F3d 920, 925 (9th Cir 2009). Such speech "must involve

issues about which information is needed or appropriate to enable the members of society to make

informed decisions about the operation of their government." Desrochers v. City of San

Bernardino, 572 F3d 703, 710 (9th Cir 2009) (internal quotation marks and citation omitted).

Moreover, even if speech could be of public concern, "no employee's speech is 'protected' under

the First Amendment until a court has performed the Pickering balance and concluded that the







employee's interest in speaking outweighs the employer's interest in promoting efficiency and

preventing disruption." Moran, 147 F3d at 848 (discussing Pickering v. Bd. of Educ. of Twp. High

Sch. Dist. 205, Will Cty., Ill., 391 US 563, 88 S Ct 1731, 20 L Ed 2d 811 (1968)).

The relevant considerations in applying the Pickering test are whether Diss's

statement (A) impaired discipline or control by his superiors; (B) disrupted harmony among

coworkers; (C) had a detrimental impact on close working relationships for which personal loyalty

and confidence are necessary, such as that between a teacher and principal; (D) impeded the

performance of Diss's duties; or (E) interfered with the regular operation of the school. See Nelson

v. Pima Cmty. Coll., 83 F3d 1075, 1081 (9th Cir 1996); Brewster v. Bd. of Educ. of Lynwood

Unified Sch. Dist., 149 F3d 971, 979 (9th Cir 1998) (analyzing the teacher-principal relationship).

When applying the Pickering test, government employers have "'wide discretion and control over

the management of [their] personnel and internal affairs.'" Brewster, 149 F3d at 979 (quoting

Connick, 461 US at 151) (internal quotation marks and citation in Connick omitted).

(A) Diss's "expressions of opinion with regard to TOP" (Compl., ¶ 64(a)) were not protected.

Diss's "[e]xpressions of opinion with regard to TOP," as described in

paragraph 64(a) of the complaint, are not protected because the expressions owe their existence

to Diss's professional responsibilities as a teacher at Benson. When Diss verbally harassed TOP

presenters about their employer, insulted them, and excluded them from his classroom, he was

speaking and acting according to his duty as a School District employee to receive Benson

community partners and facilitate School District programs at school during the school day. And

when he spoke to administrators about TOP, he was speaking as an employee in accordance with

his duty to facilitate School District programs and his duty to follow his supervisors' directives.

Even if Diss could meet his threshold burden, the speech fails the Pickering

balance because Diss's verbal harassment of the TOP presenters interfered with the regular

operation of an authorized School District program—the presenters had to leave the room on







multiple occasions and request assistance from administrators, who then had to supervise the

presentations to ensure that Diss did not disrupt them further. Campbell Dep. at 151:16-152:11;

Carbone Dep. at 164:19-166:8, Ex. 17. Additionally, Diss's continued verbal harassment of TOP

presenters in violation of administrators' directives to allow the presentations impaired discipline

and control by his superiors. Id.; See Hemminghaus v. Missouri, 756 F3d 1100, 1112 (8th Cir

2014) ("Employee acts of insubordination may tip the balancing process in favor of the

employer's interests in the efficient promotion of its services.") (internal quotation marks and

citation omitted). And Diss's unprofessional conduct was not only disruptive to his supervisors,

but set a poor example of professionalism for his students, as well. Munroe v. Cent. Bucks Sch.

Dist., 805 F3d 454, 476 (3d Cir 2015) ("[I]t is generally appropriate to consider the reactions of

students and parents to an educator's speech under the Pickering balancing test.") (joining the

Second and Seventh Circuits in this conclusion). Diss's willful obstruction and insubordination

were not protected by the First Amendment.

(B) Diss's "expressions of opinion and speech directed at defendant Carbone" (Compl., ¶ 64(b)) were not protected.

Diss's "[e]xpressions of opinion and speech directed at defendant Carbone," as

described in paragraph 64(b), regarding administrative directives and expectations for Tutorial

period on September 19, 2012, were not protected because Diss was speaking within his duty to

teach the classes assigned to him according to the School District's expectations and to follow his

supervisors' directives. Additionally, this is precisely the kind of individual personnel dispute

that is of no concern to the public, so it is not entitled to First Amendment protection.

Desrochers, 572 F3d at 710 (Speech that deals with "individual personnel disputes and

grievances and that would be of no relevance to the public's evaluation of the performance of

governmental agencies is generally not of public concern.") (internal quotation marks and

citations omitted).







Even if Diss could meet his threshold burden, however, the balance weighs

against First Amendment protection. Diss's uncooperative and hostile demeanor in repeatedly

telling Carbone to "put it in writing" when she attempted to discuss Tutorial expectations

disrupted harmony among coworkers, and no interest that Diss may have had in that speech

counters its negative impact on the workplace. Dep. Ex. 17. The balance tilts further against Diss

because the comments "[were] not directed to the public or the media, but rather to a governmental

colleague." Brewster, 149 F3d at 981 (internal quotation marks and citation omitted).

(C) Diss's "verbal interaction with defendant Carbone" (Compl., ¶ 64(c)) was not protected.

Diss's "verbal interaction with defendant Carbone," as described in

paragraph 64(c), at the football game on October 5, 2012, was not protected because it did not

involve matters of public concern. His sarcastic apology for being rude to Carbone, and his

insistence that Carbone had also been rude, related only to individual personnel disputes.

Carbone Dep. at 179:15-183:5. Nothing that Diss said that night was of public concern.

Even if Diss could meet his threshold burden, though, the balance weighs in favor

of the School District for the same reasons as for Diss's comments to Carbone regarding

expectations for Tutorial: the comments disrupted harmony among coworkers and were directed

to a governmental colleague and not to the public. Moreover, the confrontation negatively affected

parents who observed the exchange, causing them to express concerns about Diss's lack of

professionalism. Dep Ex. 19; Campbell Dep. at 220:12-222:16, Ex. 169.

(D) The "free-speech activities of community members, including plaintiff" (Compl., ¶ 64(d)), were not protected.

The "free-speech activities of community members, including plaintiff," described

in paragraph 64(d) arguably satisfy the threshold public-concern inquiry but fail the Pickering

balancing test because Diss's interest in speaking is outweighed by the School District's interest

in efficiently delivering educational services to Portland schoolchildren without disruption.







Diss does not specify what speech activity he engaged in with community

members, but he appears to be referring to a film showing at Benson with which he was involved

and for which a community group distributed fliers to students outside Benson on October 18,

2012. See Campbell Dep. at 236:6-237:16, Ex. 42. The group was permitted to pass out the

fliers on the sidewalk in front of Benson with no interference. Campbell Dep. at 241:15-242:3.

The fliers had the words "Black Genocide in 21st Century America" in large type and no other

contextual information. Id., Ex. 42. The fliers were disruptive to the educational environment at

Benson—at least one student reported concerns about the fliers to the office and was so upset

that he asked to go home. Campbell Dep. at 237:8-21, 239:2-11. Out of concern that other

students would be upset or confused, Campbell sent an e-mail to all staff to explain that the fliers

related to a film that a community group would be showing over the weekend in the Benson

auditorium. Id., Ex. 42. Campbell did not identify Diss in the e-mail, nor did she subsequently

discuss the matter with Diss. Id. The School District did not limit Diss's ability to speak in any

way, so there is no regulation of speech to balance against the disruptive impact on Benson

students—as a matter of law, the allegations in paragraph 64(d) do not implicate the First

Amendment. See Huskey, 204 F3d at 899 (adverse action is a "threshold matter"). Moreover,

Diss has no factual support that Campbell knew he was involved in the event before sending the

e-mail or that it had anything to do with any employment action.

(E) Diss's "communications with his students" (Compl. ¶ 64(e)) were not protected.

The "communications with his students" that Diss describes in paragraph 64(e)

are not protected because they constitute the very essence of the work he was hired to perform—

that is, teaching and supervising students. See Johnson v. Poway Unified Sch. Dist., 658 F3d

954, 967 (9th Cir 2011) (teacher's speech to students during class is made as employee, not a

private citizen, and thus not entitled to First Amendment protection). And using demeaning

language like "you're disgusting" with students, or featuring a student in a threatening test







question, does not implicate the public concern. Curtis Dep. at 82:7-17; Diss Dep. II at 280:5-

11, Ex. 32.

Any constitutionally significant interest that Diss may have had in his

communications with his students was outweighed by the disruption that it caused to the daily

operation of the school. Students complained about the content and the manner of Diss's speech,

and many sought to transfer out of his class. Carbone Decl., ¶ 6, Ex. 4. Administrators were

required to spend time investigating these complaints and responding to transfer requests. Id.

Moreover, Diss's communication strained relationships with students and impaired his

performance as a teacher. Dep. Exs. 20, 33. These considerations weigh heavily against First

Amendment protection.

(2) There is no evidence of retaliation based on protected speech.

To survive summary judgment, Diss "must produce evidence sufficient to permit

a reasonable trier of fact to find" that he suffered an adverse action because of his protected

activity. Keyser v. Sacramento City Unified Sch. Dist., 265 F3d 741, 754 (9th Cir 2001) (internal

quotation marks and citation omitted). In the absence of direct evidence, Diss must produce

specific circumstantial evidence of retaliatory motive. See McCollum v. Cal. Dep't of Corr. &

Rehab., 647 F3d 870, 882 (9th Cir 2011). Further, Diss's "speculation as to [defendants']

improper motive does not rise to the level of evidence sufficient to survive summary judgment."

Karam v. City of Burbank, 352 F3d 1188, 1194 (9th Cir 2003); See also Wood v. Yordy, 753 F3d

899, 905 (9th Cir 2014) ("We have repeatedly held that mere speculation that defendants acted

out of retaliation is not sufficient.").

There is no evidence that an adverse action taken against Diss was motivated by

any protected activity that he engaged in. Rather, the evidence shows that Diss's employment

was terminated because he failed to show either the intention or ability to alter his pattern of

unprofessional conduct after receiving multiple written reprimands and two final warnings. Dep.







Ex. 39. Diss's claims fail as a matter of law because there is no evidence of a "causal link"

between any allegedly protected speech and allegedly retaliatory acts. Gomez v. Vernon,

255 F3d 1118, 1126 (9th Cir 2001).

b. Diss's claims against the individual defendants fail as a matter of law because they are entitled to qualified immunity.

The individual defendants are entitled to qualified immunity unless Diss can show

that they "violated a statutory or constitutional right that was clearly established at the time of the

challenged conduct." Plumhoff v. Rickard, ___ US ___, 134 S Ct 2012, 2023, 188 L Ed 2d 1056

(2014) (internal quotation marks and citation omitted). And "a defendant cannot be said to have

violated a clearly established right unless the right's contours were sufficiently definite that any

reasonable official in the defendant's shoes would have understood that he was violating it." Id.

Further, because "the underlying determination pursuant to Pickering whether a public employee's

speech is constitutionally protected turns on a context-intensive, case-by-case balancing analysis,

the law regarding such claims will rarely, if ever, be sufficiently 'clearly established' to preclude

qualified immunity under Harlow and its progeny." Moran, 147 F3d at 847 (joining "the chorus of

voices from other circuits that have specifically observed the difficulty of finding clearly

established law under Pickering").

There was no binding case law at the time of the alleged deprivation that would put

the individual defendants on notice that Diss had a clearly established right to engage in the speech

addressed above, or that any of their actions would have violated Diss's rights. Moreover, when a

defendant's motive is relevant to an element of an alleged constitutional violation, a plaintiff

must "put forward specific, nonconclusory factual allegations that establish improper motive" to

overcome a claim of qualified immunity. Jeffers v. Gomez, 267 F3d 895, 911 (9th Cir 2001)

(internal quotation marks and citations omitted). Diss must show that the individual defendants

acted with a retaliatory motive, and there is no evidence to support that essential element of his







claim. Diss's speculation as to the individual defendants' motive is insufficient as a matter of law

to overcome their claim of qualified immunity. See id.

c. Diss's claims against the School District fail as a matter of law because he cannot show a custom, policy, or practice of First Amendment speech retaliation.

Liability against the School District can arise only if Diss can demonstrate a

custom, policy, or practice of retaliation based on speech protected by the First Amendment.

Monell v. Dep't of Soc. Servs. of City of N.Y., 436 US 658, 691 S Ct 2018, 56 L Ed 2d 611 (1978).

There is no basis for municipal liability against the School District because there is no evidence,

nor has Diss even alleged, that the School District has an official policy or custom of disciplining

or discharging employees in retaliation for exercising First Amendment rights to free speech.

2. All defendants are entitled to summary judgment on Diss's First Amendment― Freedom of Association claim (Second Claim for Relief).

Diss claims that "[d]efendants took steps designed to chill and inhibit [his] right to

freedom of association as protected by the First Amendment to the U.S. Constitution." Compl.,

¶ 75. He alleges that defendants "specifically targeted [him] with discriminatory and harassing

treatment because he chose to associate with a community group that opposed Planned

Parenthood." Id.

a. Diss cannot establish a prima facie case of retaliation based on protected association.

To establish a prima facie case, Diss must prove that (1) he engaged in protected

association; (2) defendants took an adverse employment action; and (3) his association was a

substantial motivating factor for the adverse employment action. See Strahan v. Kirkland,

287 F3d 821, 825 (9th Cir 2002). To survive summary judgment, Diss "must produce evidence

sufficient to permit a reasonable trier of fact to find" that he suffered adverse action because of

his protected association. Keyser, 265 F3d at 754 (as amended) (internal quotation marks and

citation omitted).







Diss asserts that defendants were motivated to retaliate against him because he

associated with a community group that opposed Planned Parenthood. But he cannot produce

specific facts that any defendant even knew of his association, let alone specific facts that any

defendant was concerned about his association with his community group. Diss's "speculation as

to [defendants'] improper motive does not rise to the level of evidence sufficient to survive

summary judgment." Karam, 352 F3d at 1194. All defendants are entitled to summary

judgment on Diss's claim for retaliation based on protected association because there is no

dispute as to any material fact, and he cannot establish the necessary causal nexus between his

association and any adverse action. See Gomez, 255 F3d at 1126.


The individual defendants are entitled to qualified immunity on Diss's claim for

retaliation based on protected association because no specific facts indicate retaliatory motive.

See Jeffers, 267 F3d at 911.

c. Diss's claims against the School District fail as a matter of law because he cannot show a custom, policy, or practice of First Amendment association retaliation.

There is no basis for municipal liability against the School District because no

facts indicate an official policy or custom of disciplining or discharging employees in retaliation

for exercising First Amendment rights to free association. Monell, 436 US at 691.

3. All defendants are entitled to summary judgment on Diss's First Amendment― Free Exercise claim (Third Claim for Relief).

Diss asserts that defendants violated his rights to freely exercise his religion by

(a) requiring him to supervise his class during TOP presentations, (b) asking him not to use

religious expressions such as "God bless" in professional communications, and (c) creating an

environment that chilled his ability to exercise his religious beliefs. Compl., ¶ 85.







a. Diss cannot establish a prima facie case of a violation of his free-exercise rights.

Neutral rules of general applicability do not ordinarily raise free-exercise

concerns even if they incidentally burden a particular religious practice or belief. Church of

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 US 520, 531, 113 S Ct 2217, 124 L Ed 2d 472

(1993); Empl't Div. v. Smith, 494 US 872, 879, 110 S Ct 1595, 108 L Ed 2d 876 (1990). Further,

even if Diss can show that he was subject to a rule that was neither generally applicable nor

facially neutral, Diss's First Amendment right to free exercise of religion is implicated only if he

can demonstrate a substantial burden on his religious beliefs or practices. See Harper v. Poway

Unified Sch. Dist., 445 F3d 1166, 1186 (9th Cir 2006), vacated on other grounds, 549 US 1262

(2007). And for any action that was neither regulatory, proscriptive, nor compulsory, Diss's

allegation of a subjective chilling effect on free-exercise rights is not sufficient, as a matter of

law, to constitute a substantial burden. Am. Family Ass'n, Inc. v. City & Cty. of San Francisco,

277 F3d 1114, 1124 (9th Cir 2002).

(1) The requirement to supervise TOP presentations was facially neutral and generally applicable to all Tutorial teachers.

The requirement that all Tutorial teachers, including Diss, supervise their Tutorial

classes during TOP presentations does not implicate the right to freely exercise religion because

the requirement was facially neutral and generally applicable. See Smith, 494 US at 879. First,

rules that "make no reference to any religious practice, conduct, belief, or motivation * * * are

facially neutral." Stormans, Inc. v. Wiesman, 794 F3d 1064, 1076 (9th Cir 2015). There is no

evidence that the requirement for Tutorial teachers to supervise TOP presentations overtly

addressed or referred to any religious practice, conduct, belief, or motivation—the supervision

requirement was facially neutral. Second, a rule is "generally applicable" unless it, "'in a

selective manner[,] impose[s] burdens only on conduct motivated by religious belief.'" 794 F3d

at 1079 (quoting Lukumi, 508 US at 543). There is no evidence, nor has Diss alleged, that the







requirement for Tutorial teachers to supervise their classes during TOP presentations was

selectively imposed, and it is plain that it was not. Diss cannot maintain a claim for violation of

his right to freely exercise his religion based on the requirement that he supervise his class during

TOP presentations.

(2) The directive to avoid religious expressions in communication with staff, students, and parents does not violate the First Amendment.

First, there is no evidence that Diss suffered a "substantial burden on a central

tenet of [his] religion" when he was asked to avoid using religious expressions in professional

communications with staff, students, and parents. Goehring v. Brophy, 94 F3d 1294, 1299 (9th

Cir 1996). Diss has not alleged, nor is there any evidence, that ending e-mails with the words

"God bless" is a central tenet of his religion. Moreover, Diss was simply restricted from using

that expression in professional communications—he was not restricted from using religious

terminology in personal communications with friends or family, or with School District staff

with whom Diss had an understanding that such terminology was welcome. Campbell Dep.

at 205:25-207:24, 210:14-211:10.

But even if Diss can prove a substantial burden, the Pickering test applies when a

public employee alleges that a restriction on religious expression infringes the right to free

exercise of religion, and the School District's interests in remaining religiously neutral outweigh

Diss's interests in including religious expressions in his e-mails. See Berry v. Dep't of Soc.

Servs., 447 F3d 642, 650 (9th Cir 2006) (Pickering test applies to Free Exercise claim involving

religious speech, and the employer's interest in avoiding an Establishment Clause violation must

be balanced against the employee's interest in speech); see also Peloza v. Capistrano Unified

Sch. Dist., 37 F3d 517, 522 (9th Cir 1994) (school district's interest in avoiding an Establishment

Clause violation trumped the teacher's right to talk to students). The Ninth Circuit has held that

an employer's restriction of an employee's religious expressions in the workplace is reasonable

under Pickering. See Berry, 447 F3d at 651 (upholding employer's restriction of employee's







religious speech directed at clients and display of religious items in the workplace). Parents had

complained to administrators about Diss's using the expression "God bless" or "God bless you"

at least twice during his tenure at Benson. Diss Dep. I at 50:24-53:21; Campbell Dep.

at 28:5-25. As a matter of law, Diss's use of religious expressions with students interfered with

the performance of his duty to maintain professional working relationships with all his students

and their families.

(3) Diss's claim that the individual defendants created an environment that chilled his exercise of religion fails as a matter of law.

Diss does not clearly explain his allegation in paragraph 85(c) that the individual

defendants "created an environment where [his] ability to exercise his religious beliefs was

chilled," and offers only the conclusory allegation that defendants "single[d] [him] out." But

unless Diss can point to a specific regulation or show how he was compelled to engage in

activity prohibited by his religion, or proscribed from engaging in required activity, his claim to

subjective "chilling" is, as a matter of law, not the kind of "substantial burden" that can support a

free-exercise claim. See Am. Family Ass'n, 277 F3d at 1124.


The individual defendants are entitled to qualified immunity on Diss's free-

exercise claim regarding TOP because it was not clearly established that a facially neutral,

generally applicable requirement for all Tutorial teachers to supervise presentations regarding a

nonreligious program could implicate the Free Exercise Clause of the First Amendment. See

Smith, 494 US at 879; Plumhoff, 134 S Ct at 2023. Additionally, the individual defendants are

entitled to qualified immunity on the free-exercise claim regarding Diss's use of religious

expressions because it was not clearly established that his use of religious expressions in work

communication was protected under Pickering. See Moran, 147 F3d at 847. Finally, the

individual defendants are entitled to qualified immunity on Diss's claim that they created an







environment that chilled his exercise of religion because it was not clearly established that a

subjective chilling effect could constitute a substantial burden. See Plumhoff, 134 S Ct at 2023;

Am. Family Ass'n, 277 F3d at 1124.

c. Diss's claims against the School District fail as a matter of law because he cannot show a custom, policy, or practice of free-exercise violations.


facts indicate an official policy or custom of infringing on employees' rights to freely exercise

their religion. See Monell, 436 US at 691.

4. All defendants are entitled to summary judgment on Diss's Equal Protection claim (Fourth Claim for Relief).

Diss asserts that he was "singled-out by the defendants based on his religion" and

that he was subjected to a variety of adverse actions, "all based on his moral and religious

views." Compl., ¶¶ 95, 96.

a. Diss cannot establish a prima facie case of an equal-protection violation.

To establish a prima facie case, a plaintiff who asserts an equal-protection violation

must show that the defendants acted with the intent to discriminate against him based on his

membership in a protected class. See Lee v. City of Los Angeles, 250 F3d 668, 686 (9th Cir 2001).

There is no evidence of discriminatory motive on the part of any School District

employee. Rather, the evidence shows that the individual defendants were largely unaware of

Diss's religious beliefs until he began disrupting a School District program and behaving

unprofessionally toward School District partners. Campbell Dep. at 26:16-27:11; Carbone Dep.

at 28:19-29:6. The School District respected Diss's right to his individual religious beliefs, and he

was disciplined and discharged because he failed to alter his pattern of repeated unprofessional

conduct and did not meet the School District's expectations with respect to teaching performance.

Dep. Ex. 39. Diss's unsupported assertion of discrimination is not enough to survive summary

judgment on an equal-protection claim because proof of invidious discriminatory intent is







required. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 US 252, 265, 97 S Ct

555, 50 L Ed 2d 450 (1977); see also Navarro v. Block, 72 F3d 712, 717 (9th Cir 1995).


The individual defendants are entitled to qualified immunity on Diss's equal-

protection claim because no facts indicate a discriminatory motive. Jeffers, 267 F3d at 911.

c. Diss's claims against the School District fail as a matter of law because he cannot show a custom, policy, or practice of equal-protection violations.


facts indicate an official policy or custom of violating employees' equal-protection rights. See

Monell, 436 US at 691.

C. Statutory claims.

1. The School District is entitled to summary judgment on Diss's claims under Title VII and ORS 659A.0308 (Seventh and Eighth Claims for Relief).9

Diss asserts that the School District violated Title VII by (a) disciplining and

suspending him, (b) not placing him on a plan of assistance, (c) placing him on paid

administrative leave, and (d) terminating his teaching contract based on his religion. Compl.,

¶ 127. Diss also claims that he was subject to a hostile work environment based on his religion

and that the School District failed to reasonably accommodate his religious beliefs. Id.

Diss's claim under ORS 659A.030 rests on the allegations that "(a) he was forced

to submit to unlawful working conditions; (b) he was subjected to unwarranted reprimand,

discipline and suspensions; and (c) he was discharged from employment without just cause or

reason." Compl., ¶ 138.

8 Courts analyze claims of discrimination under ORS 659A.030 identically to Title VII claims, and the state claim will stand or fall with the federal claim. Heller v. EBB Auto Co., 8 F3d 1433 (9th Cir 1993). 9 On May 3, 2016, Diss submitted a stipulated notice of dismissal with respect to his fifth claim for relief (substantive due process) and his sixth claim for relief (procedural due process), but has not indicated any intention to amend his complaint. This motion will therefore refer to each claim for relief according to its number in the original complaint.







a. Diss cannot establish a prima facie case of religiously hostile work environment.

To the extent that Diss's claim is for a hostile work environment, he must show

that the "workplace [was] permeated with discriminatory intimidation, ridicule, and insult that

[was] sufficiently severe or pervasive to alter the conditions of [his] employment and create an

abusive working environment." Harris v. Forklift Sys., Inc., 510 US 17, 21, 114 S Ct 367,

126 L Ed 2d 295 (1993) (internal quotation marks and citations omitted); see also Brooks v. City

of San Mateo, 229 F3d 917, 923 (9th Cir 2000). Diss can produce no facts that meet this

standard.

b. Diss cannot establish a prima facie case of disparate treatment.

To establish a prima facie case of unlawful discrimination, Diss must show that

(1) he belongs to a protected class; (2) he performed his job satisfactorily; (3) he suffered an

adverse employment action; and (4) the School District treated Diss differently from similarly

situated employees outside his protected class. See Cornwell v. Electra Cent. Credit Union,

439 F3d 1018, 1028 (9th Cir 2006). To survive summary judgment, Diss must produce evidence

that goes beyond "'purely conclusory allegations of alleged discrimination, with no concrete,

relevant particulars.'" Peterson v. Hewlett-Packard Co., 358 F3d 599, 603 (9th Cir 2004)

(quoting Forsberg v. Pac. Nw. Bell Tel. Co., 840 F2d 1409, 1419 (9th Cir 1988).

Because there is no direct evidence of discrimination, Diss must proceed

according to the McDonnell Douglas burden-shifting framework on claims under both state and

federal law. See Peterson, 358 F3d at 603 (citing McDonnell Douglas Corp. v. Green, 411 US

792, 93 S Ct 1817, 36 L Ed 2d 668 (1973)); Neighorn v. Quest Health Care, 870 F Supp 2d

1069, 1102 (D Or 2012) (Oregon statutory claim must be analyzed according to the burden-

shifting framework because it "is a procedural device, not a substantive rule") (citing Snead v.

Metro. Prop. & Cas. Ins. Co., 237 F3d 1080, 1090-93 (9th Cir 2001)). If Diss is able to establish

a prima facie case, the burden shifts to the School District to articulate a legitimate,







nondiscriminatory reason for the adverse action. See McDonnell Douglas, 411 US at 802-03.

At that point, the burden shifts back to Diss to "put forward specific and substantial evidence

challenging the credibility of the [School District's] motives." Vasquez v. Cty. of Los Angeles,

349 F3d 634, 642 (9th Cir 2003).

(1) Diss's job performance was not satisfactory.

Diss cannot establish a prima facie case of discrimination based on religion

because he cannot prove that his job performance was satisfactory. See Cornwell, 439 F3d

at 1028 (plaintiff must prove satisfactory performance to survive summary judgment). During

the 2012-2013 school year, the School District reprimanded Diss for unprofessional conduct on

September 26, 2012, and October 8, 2012. Dep. Exs. 15, 17. Diss verbally harassed Carbone the

same day he received directives to interact with administrators in a professional manner on

October 5. Carbone Dep. at 179:15-183:5; Dep. Ex. 18. Diss received a second final warning on

February 28, 2013, and was placed on leave pending a recommendation for dismissal on

March 19, 2013, after violating administrative directives within days of receiving them. Dep.

Exs. 33, 39. Diss's repeated violations of administrative directives and his failure to address

concerns in his teaching performance demonstrate that he was not satisfactorily performing as a

teacher.

(2) There is no evidence that any similarly situated teachers engaged in conduct similar to Diss's and did not receive similar discipline.

Diss's complaint relies on the allegation that he was in essence "singled out"

based on his religious beliefs, and he must show that similarly situated teachers engaged in

conduct similar to the conduct for which he was disciplined but received better treatment. Hawn

v. Exec. Jet Mgmt., Inc., 615 F3d 1151, 1156 (9th Cir 2010); Vasquez, 349 F3d at 641-42. There

is no evidence that any School District employee engaged in similar conduct and was not

similarly disciplined.







(3) There is no specific and substantial evidence that the School District's legitimate, nondiscriminatory reasons are pretext for discrimination.

The School District disciplined Diss and dismissed him from employment for his

pattern of unprofessional conduct and his inadequate teaching performance. See Dep. Ex. 33.

Diss must produce specific and substantial evidence that the stated reasons are pretext for

discrimination based on his Catholic religious identity. Vasquez, 349 F3d at 641-42. There is no

specific and substantial evidence of anti-Catholic animus. Diss's subjective belief that he was

discriminated against for being Catholic is insufficient to survive summary judgment. See Foster

v. Arcata Assocs., Inc., 772 F2d 1453, 1459 (9th Cir 1985) ("Mere assertions of discriminatory

motive and intent * * * are inadequate."), overruled on other grounds by Kennedy v. Allied Mut.

Ins. Co., 952 F2d 262 (9th Cir 1991); Ray v. Tandem Computers, Inc., 63 F3d 429, 434 (5th Cir

1995) (finding employee's subjective belief of discriminatory intent insufficient "to establish a

material question of fact" regarding the employer's motives).

c. Diss's requested accommodation is not for a practice or observance; thus, the School District had no accommodation obligation.

Diss asserts that the School District violated Title VII by failing to accommodate

his religious beliefs about sexuality and abortion by requiring him to supervise Tutorial during

TOP presentations to inform students that they could sign up for TOP. Am. Compl., ¶¶ 34, 125,

127. Diss's reasonable-accommodation claim fails because Title VII does not require an employer

to accommodate a personal preference unconnected to a religious practice or observance.10

Title VII prohibits discrimination based on religion. 42 USC § 2000e-2(a)(1). In

1972 Congress added a definition of "religion" to Title VII to codify (and clarify) an existing

10 ORS 659A.033 also applies to religious practices and observances, although Diss does not plead a failure-to-accommodate claim under Oregon law. The Bureau of Labor and Industries ("BOLI") took the position that Diss's request to not be present during the TOP presentations did not entitle him to a religious accommodation. See July 23, 2014, Letter from BOLI investigator to William Diss, Norwood Decl., Ex. 3.







Equal Employment Opportunity Commission ("EEOC") regulation. Trans World Airlines, Inc.

v. Hardison, 432 US 63, 73-74, 97 S Ct 2264, 53 L Ed 2d 113 (1977). That definition states:

"'The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.' § 701(j), 42 U.S.C. § 2000e(j) (1970 ed., Supp. V)." Id.

Thus, the term "religion" for purposes of discrimination includes "religious observance and

practice, as well as belief." But when it comes to accommodations, Congress described

accommodating "an employee's or prospective employee's religious observance or practice."

Congress did not use the words "as well as belief" when describing the religious-accommodation

obligation. In a world of diverse viewpoints and religions, tolerating beliefs that differ is part of

life. A "practice" or "observance" is different.

When interpreting a statute, courts are to ascertain Congress's intent—and the

words that Congress chooses to use, as well as the words it chooses not to use, are the best

evidence of its intent. Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit

Servs., Inc., 435 F3d 1140, 1146 (9th Cir 2006). If Congress uses a word in one section of a

statute but omits that word from another section, "it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion." Keene Corp. v. United

States, 508 US 200, 208, 113 S Ct 2035, 124 L Ed 2d 118 (1993) (internal quotation marks and

citations omitted); see also Hamdan v. Rumsfeld, 548 US 557, 578, 126 S Ct 2749, 165 Ed 2d

723 (2006) ("A familiar principle of statutory construction * * * is that a negative inference may

be drawn from the exclusion of language from one statutory provision that is included in other

provisions of the same statute."). Congress could have incorporated the word "belief" into its

description of what an employer must accommodate, but it did not. Instead, it requires that an

observance or practice must be accommodated.







Current EEOC regulations reflect the distinction between accommodating

(1) practices and observances and (2) beliefs. 29 CFR Section 1605.2 addresses reasonable

accommodation and describes accommodation of "religious practices." 29 CFR Section 1605.1

does define "religious practices to include moral or ethical beliefs as to what is right and wrong,"

but "beliefs" is in the phrase to define what is religious, not to define a practice that must be

accommodated. Likewise, the examples provided by the EEOC are about work schedules

(29 CFR § 1605.2(a)), selection procedures that occur when an employee cannot attend because

of a practice (29 CFR § 1605.3), or observances and practices such as dietary requirements or

religious prohibitions against medical exams (29 CFR § 1605, app A).

What Diss wants here is for Title VII to be interpreted to require his employer to

excuse him from being in the room at a public school during a school-sponsored program

because he disagrees with the cosponsor's employer. But an educational institution has the right

to determine its educational offerings, and indeed it is undisputed that TOP is a federally funded

grant program that, in Oregon, happens to be implemented through an organization that

plaintiff's beliefs conflict with. See Downs v. Los Angeles Unified Sch. Dist., 228 F3d 1003,

1015-16 (9th Cir 2000) ("[S]chool teachers have no First Amendment right to influence

curriculum as they so choose."); Grossman v. S. Shore Pub. Sch. Dist., 507 F3d 1097, 1100

(7th Cir 2007) ("school authorities have a right to control the school curriculum"); Palmer v. Bd.

of Educ. of City of Chicago, 603 F2d 1271, 1273 (7th Cir 1979) (The First Amendment is "not a

teacher license for uncontrolled expression at variance with established curricular content.").

Diss's request is akin to a personal preference, which courts have held does not

trigger an accommodation obligation. For example, in Tiano v. Dillard Dep't Stores, Inc.,

139 F3d 679 (9th Cir 1998), the plaintiff/employee (a devout Catholic) requested time off to take

a pilgrimage to Yugoslavia during a time of year that her employer had a "no leave" policy. She

went anyway, and upon her return, the store told her that her actions had been a voluntary quit

and that she no longer had a job. Although the court found that the behavior had been motivated







by her religious beliefs, this was not enough for her to succeed on her claim that the employer

had not accommodated her in violation of Title VII. Although the plaintiff had testified to her

belief that she needed to take a pilgrimage at a certain time, the timing aspect of the trip was a

"personal preference," and the employer did not have to accommodate. 139 F3d at 683.

Similarly, in Vetter v. Farmland Indus., Inc., 120 F3d 749, 750 (8th Cir 1997), the

Eighth Circuit affirmed a verdict for an employer because the plaintiff's alleged religious belief

(that he needed to live in a city with an active Jewish community) was in fact a personal

preference. There, the employee "contended that his religious beliefs required him to live in a

city with an active Jewish community and synagogue and that Farmland had discriminated

against him on the basis of his religion by enforcing its residence requirement [living in the trade

territory] and not reasonably accommodating his beliefs." Id.

Turner v. Boy Scouts of Am., Inc., No. CIV-09-180-C, 2009 WL 2567962

(WD Okla Aug. 17, 2009), provides another example. There, the plaintiff-employee had been

suspended without pay after meeting his pastor. That was "not part of a regularly scheduled

religious service or other activity required by his religion," and the employer had no

accommodation obligation. 2009 WL 2567962, at *2.

In sum, Diss's desire to not be in Tutorial when the TOP presenters explained

their program is not an observance or practice for which accommodation is required. If it were,

it is hard to imagine the breadth of avoidance accommodation claims that could be asserted.

2. The School District is entitled to summary judgment on Diss's whistleblower retaliation claims (Ninth and Tenth Claims for Relief).

Diss asserts that the School District unlawfully retaliated against him after he

raised concerns regarding the legal permissibility of certain unspecified "actions and activities"

by TOP facilitators in his classroom. Compl., ¶ 159.







a. Diss cannot establish a prima facie case of whistleblower retaliation against the School District.

As a preliminary matter, ORS 659A.203 prohibits whistleblower retaliation by a

"public employer," while ORS 659A.199 extends similar protections to employers not covered

by ORS 659A.203. Thus, a public employee can bring a claim for whistleblower retaliation

under ORS 659A.203, but not under ORS 659A.199. See Minger v. Hood Cmty. Coll. Dist.,

No. 3:14-cv-01460-SI, 2016 WL 475382, at *6-8 (D Or Feb. 4, 2016) (a public employee cannot

bring a claim under ORS 659A.199 "[b]ecause ORS § 659A.199 does not apply to public

employers"); Lindsey v. Clatskanie People's Util. Dist., No. 3:14-cv-485-SI, 2015 WL 6443290,

at *11 (D Or Oct. 23, 2015) ("The legislative history establishes that ORS § 659A.199 does not

apply to public employers."); Peters v. Betaseed, Inc., No.6:11-CV-06308-AA, 2012 WL

5503617, at *4 (D. Or. Nov. 9, 2012) (same).

ORS 659A.203(1)(b)(A) makes it an unlawful employment practice for an

employer to retaliate against an employee for disclosing "any information that the employee

reasonably believes is evidence of * * * [a] violation of any federal or state law, rule or

regulation by the state, agency or political subdivision." Similarly, ORS 659A.203(1)(b)(B)

protects a public employee who discloses information that the employee reasonably believes is

evidence of a "substantial and specific danger to public health and safety resulting from action of

the state, agency or political subdivision." To qualify as protected activity, however, the

employee's belief must have been objectively reasonable. Minger, 2016 WL 475382, at *7.

To establish a prima facie case under ORS 659A.203, Diss must show that

"(1) [he] was engaging in a protected [whistleblower] activity, (2) [he] suffered an adverse

employment decision, and (3) there was a causal link between the protected activity and the

adverse employment decision." Larmanger v. Kaiser Found. Health Plan of the Nw.,

895 F Supp 2d 1033, 1049 (D Or 2012), aff'd, 585 F App'x 578 (9th Cir 2014) (internal quotation

marks and citations omitted).







Although Diss did discuss his moral objections to what he believed was Planned

Parenthood's involvement with TOP, no facts indicate that he asserted that he believed any law

or rule had been violated, nor did he articulate a substantial and specific danger to his students'

health and safety. There is no evidence that either Campbell or Carbone was aware that Diss

engaged in any protected activity. Moreover, Diss's claim that he disclosed his concerns "to the

Board of Education through public testimony" is unsupported by the material undisputed facts.

The only thing Diss mentioned in his public testimony was his personal employment status and

his moral and religious objection to abortion and to Planned Parenthood—he never mentioned a

state or federal law, rule, or regulation. See Norwood Decl., Ex. 2. Finally, even if Diss in fact

had mentioned to administrators or the school board that he did believe that the presence of

employees of Planned Parenthood somehow violated a state or federal law or posed a substantial

and specific danger to his students' health and safety, such a belief would not have been

objectively reasonable, so the activity would not be protected by the statute. See Minger,

2016 WL 475382, at *7.

b. Even if Diss did engage in protected activity, there is no causal link between that activity and any adverse action.

Diss's claim for whistleblower retaliation fails because the School District

disciplined and discharged Diss for his unprofessional conduct and poor classroom teaching.

There is no evidence that any protected activity by Diss influenced those decisions. The School

District is entitled to summary judgment on Diss's whistleblower claims because there is no

evidence of any causal link between an adverse action and any protected activity that Diss may

have engaged in. See Larmanger, 895 F Supp 2d at 1049.







D. Common-law claim.

1. The School District is entitled to summary judgment on Diss's wrongful-discharge claim (Eleventh Claim for Relief).

Diss asserts that his discharge was wrongful because he "exercised his right to

object to the defendants' TOP program and to ask for a religious accommodation, and was

ultimately terminated for his stand." Compl., ¶ 171. Additionally, he asserts that his discharge was

wrongful because the decision was based on his "fulfillment of his societal obligation to inform

and educate regarding Planned Parenthood and their methods and activities." Compl., ¶ 172.

a. Diss cannot establish a prima facie case of wrongful discharge.

Oregon recognizes the tort of wrongful discharge in two scenarios: when an

employee is discharged for fulfilling societal duties, and when an employee is discharged for

exercising rights of public importance related to his or her role as an employee. Delaney v. Taco

Time Int'l., Inc., 297 Or 10, 14–16, 681 P2d 114 (1984). A plaintiff must further establish that

such a protected activity was a "substantial factor" in the discharge. Estes v. Lewis and Clark

College, 152 Or App 372, 381, 954 P2d 792 (1998). A tort claim for wrongful discharge is not

available, however, when an adequate statutory remedy already exists to protect society's

interests. Delaney, 297 Or at 14-16.

(1) Diss did not engage in any protected activity.

(A) "Inform[ing] and educat[ing] regarding Planned Parenthood and their methods and activities" is not an important public duty or societal obligation.

The determination regarding whether a public duty or a societal obligation has

been implicated is a question of law. In making that determination, the court "must review all

the relevant 'evidence' of a particular public policy, whether that be expressed in constitutional

and statutory provisions or in the case law of this or other jurisdictions." Banaitis v. Mitsubishi

Bank, Ltd., 129 Or App 371, 377-378, 879 P2d 1288 (1994). There is no constitutional or

statutory provision, nor are defendants aware of any case law in this or any other jurisdiction,







that could support Diss's claim that informing and educating regarding Planned Parenthood and

its methods or activities is an important public duty or societal obligation. Diss's expression of

his opinion about Planned Parenthood cannot support a claim for wrongful discharge.

(B) Diss did not have a "right to object to the defendants' TOP program."

Diss bears the burden of establishing that the alleged right to object to TOP is a

"'right related to his role as an employe[e] and * * * one of important public interest indicated by

constitutional and statutory provisions and caselaw.'" Holien v. Sears, Roebuck and Co., 298 Or

76, 86, 689 P2d 1292 (1984) (quoting Delaney, 297 Or at 16). There is no constitutional or

statutory provision, nor any case law of which defendants are aware, that could support Diss's

claim that objecting to TOP is an employment-related right of important public interest. Diss's

objection to TOP cannot support a claim for wrongful discharge.

(C) Oregon courts have not established that requesting a religious accommodation is an employment-related right of important public interest.

Not all statutory rights are of sufficiently important public interest to warrant an

additional common-law cause of action. See Campbell v. Ford Industries, Inc., 274 Or 243, 250-

51, 546 P2d 141 (1976) (employee-stockholder terminated for pursuit of statutory right to inspect

corporate records of employer could not bring common-law claim for wrongful discharge).

Rather, the right itself must be of such significance to the community, such as service on jury duty,

that it implicates the public interest, not just the interest of the individual asserting the right. Id.;

see also Nees v. Hocks, 272 Or 210, 221, 536 P2d 512 (1975) (finding jury duty of sufficient

importance to the community to warrant a claim for wrongful discharge). The key question is

whether such "an important interest of the community" is at stake in the individual employment

right that it "justifies compensation to the employee." Nees, 272 Or at 216. Oregon courts have

not established that an individual's right to request an accommodation for personal religious beliefs

is of sufficient significance to the community. Moreover, the right to religious accommodation is







distinguishable from the community's interest in effective law enforcement. Diss's alleged request

for a religious accommodation cannot support a wrongful-discharge claim.

(2) An adequate statutory remedy exists for the only possible basis for a cause of action for wrongful discharge.

The only allegation Diss makes that could conceivably qualify as protected

activity is his alleged request for a religious accommodation. But even if requesting a religious

accommodation is a protected activity, the claim fails because the "existing state and federal

statutory remedies for retaliation" for pursuing statutory entitlements such as the right to

religious accommodation under Title VII are adequate as a matter of law. Thomas v. City of

Beaverton, 379 F3d 802, 813 (9th Cir 2004); see also Wall v. Sentry Ins., No. 3:14-CV-01887-SI,

2015 WL 350683, at *3 (D Or Jan. 26, 2015) (collecting Oregon federal district court cases

following the decision in Thomas).

(3) There is no evidence that any allegedly protected activity was a substantial factor in the decision to terminate Diss.

Diss must prove that some protected activity was a substantial factor in the School

District's decision to terminate his employment. See Estes, 152 Or App at 381. The only

plausible claim to any protected activity that Diss might have is his alleged request for a religious

accommodation at the September 19, 2012, meeting, and none of the administrators who were

present at that meeting understood Diss to be requesting a religious accommodation. Campbell

Dep. at 170:1-7; Scotto Dep. at 55:11-18; Carbone Dep. at 117:21-118:21. And it is undisputed

that after Diss's alleged request, defendants found that his performance was inadequate and that

he had engaged in a pattern of misconduct:

Diss was insubordinate to and verbally harassed Carbone on at least two separate occasions, Carbone Dep. at 164:19-24, Ex. 17; 179:15-183:5;

Administrators received a high volume of complaints from students, as well as their parents, and requests to transfer out of Diss's classes, Carbone Decl., ¶ 6, Ex. 4;







Diss made inappropriate comments to female students about ending up "on 82nd Avenue" if they attended TOP meetings, Campbell Dep. at 242:9-243:12;

Diss's colleague Curtis, who taught in the same room, corroborated student complaints about Diss's unprofessional conduct in class, Curtis Dep. at 77:21-82:17, Ex. 34;

A student complained that Diss had featured him in a test question in a burning building, Slaughter Dep. at 45:6-48:12, Ex. 32; Campbell Dep. at 276:16-277:6; and

Colleagues complained about Diss's conduct during staff meeting; Slaughter Dep. at 54:20-55:15, Ex. 36; Dep. Ex. 37.

There is no evidence from which a reasonable juror could conclude that protected activity was a

factor of any kind in Diss's termination. Rather, the School District terminated Diss's employment

because he failed to conform his conduct to the School District's reasonable standards. The School

District is entitled to summary judgment on Diss's wrongful-discharge claim.

IV. CONCLUSION

The undisputed evidence demonstrates that Diss cannot establish at least one

essential element on each of his claims. Because there is no genuine issue of material fact, and

defendants are entitled to judgment as a matter of law on each claim, summary judgment is

appropriate in favor of each defendant, and on all of Diss's claims.

DATED this 9th day of May, 2016.

MILLER NASH GRAHAM & DUNN LLP

/s/ Michael Porter Michael Porter, P.C., OSB No. 003560 [email protected] Kellen Norwood, OSB No. 135641 [email protected] 3400 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, Oregon 97204 Telephone: 503.224.5858 Facsimile: 503.224.0155

Attorneys for Defendants


Certificate of Service





I hereby certify that I served the foregoing motion for summary judgment on:

Life Legal Defense Foundation Law Offices of Rebekah Millard, LLC 1390 Walnut Road Springfield, Oregon 97477 E-mail: [email protected] Attorney for Plaintiff Mr. Micah D. Fargey Fargey Law PC 5 Centerpointe Drive, Fourth Floor Lake Oswego, Oregon 97035 Facsimile: 503.342.8332 E-mail: [email protected] Attorney for Plaintiff

by the following indicated method or methods on the date set forth below:

CM/ECF system transmission.

E-mail.

First-class mail, postage prepaid.

Hand-delivery.

Via FedEx.

DATED this 9th day of May, 2016.

s/Michael Porter Michael Porter, OSB No. 003560

Of Attorneys for Defendants


michael porter, p.c., osb no. 003560 -...

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