Bova v. City of Medford
Bova v. City of Medford
Opinion of the Court
This case is the latest battle — but probably not the last — in an ongoing war between the City of Medford and its retired employees, including plaintiff, a now-retired former city employee.
As relevant to this appeal, plaintiff in Bova I alleged that (1) the city violated ORS 243.303(2), which requires that a “local government that contracts for or otherwise makes available health care insurance coverage for officers and employees of the local government shall, insofar as and to the extent possible, make that coverage available for any retired employee of the local government”; and (2) the city discriminated against plaintiff on the basis of his age in violation of ORS 659A.030(1)(b).
*181 “concluded that, in failing to offer that coverage, the city violated ORS 243.303(2), *** [and] ordered the city to provide plaintiff and the class members with health insurance coverage that included the option to purchase that same health insurance at the time they retired. The trial court later awarded plaintiff attorney fees on that claim and found the city in contempt of the court’s orders to comply with ORS 243.303(2). Separately, following a trial to the court, the court concluded that, by not making the same health insurance coverage available to plaintiff upon his retirement, the city had discriminated against him on the basis of age under ORS 659A.030(1)(b).”
Bova I, 262 Or App at 31 (footnote omitted). The court also awarded plaintiff $48,609.96 in costs and attorney fees for successfully litigating the contempt matter and $68,771.25 for costs and attorney fees on the age discrimination claim.
On appeal in Bova I, we
“conclude [d] that the trial court erred in granting summary judgment to plaintiff on his claim for declaratory and injunctive relief under ORS 243.303(2), because the legal standard that the trial court applied conflicts with the standard articulated by the Supreme Court in Doyle v. City of Medford, 347 Or 564, 227 P3d 683 (2010), a decision that issued after the trial court’s summary judgment ruling. We reverse [d] and remand [ed] the limited judgment on the ORS 243.303(2) claim for declaratory and injunctive relief for further proceedings. As to plaintiffs age discrimination claim under ORS 659A.030(1)(b), we conclude[d] that the trial court erred in allowing plaintiff to try that claim, over the city’s objection, on a theory of disparate impact, because that theory had not been pleaded and depended on proof different from the disparate treatment theory that plaintiff had pleaded. We therefore reverse [d] the trial court’s judgment in favor of plaintiff on his age discrimination claim. Because the supplemental judgment for attorney fees [for the ORS 243.303(2) claim] is not appealable, we dismiss the city’s appeal of that judgment.”
Id. at 31-32. We affirmed without discussion the contempt judgment.
Because we affirmed the trial court with respect to the contempt matter in Bova I, we have no reason to reverse the associated award of costs and fees, nor does the city so argue. We therefore affirm the trial court’s award of fees on that matter.
Because we reversed the trial court with respect to the age discrimination claim, we also reverse on the award of attorney fees and costs relative to that claim. In so doing, we reject without extended discussion plaintiffs cross-assignments of error in which he argues that he is entitled to attorney fees under the equitable doctrines of “common fund” or “substantial benefit,” or, alternatively, under ORS 20.105(1). The “common fund” doctrine is inapplicable because plaintiffs success in the contempt matter — the only one on which he prevailed — did not “create, discover, increase, or preserve a fund of money to which others also have a claim[.]” Strunk v. PERB, 341 Or 175, 181, 139 P3d 956 (2006). The “substantial benefit” doctrine is inapplicable because plaintiff did not vindicate an important constitutional right applying to all citizens without any gain to himself. Pendleton School Dist. v. State of Oregon, 347 Or 28, 33-34, 217 P3d 175, adh’d to as modified on recons, 347 Or 344, 220 P3d 744 (2009). And ORS 20.105(1) does not apply because, in light of our decision in Bova I, we cannot say that the city had “no objectively reasonable basis” for taking the position it took below or on appeal.
Plaintiff is a member of a class of current and former city employees in this class action suit. Although there are two defendants, the city and the city manager, we refer to them collectively as “the city.”
ORS 659A.030(l)(b) provides that it is an unlawful employment practice “ [¶] or an employer, because of an individual’s * * * age if the individual is 18 years
Reference
- Full Case Name
- Joseph BOVA, Plaintiff-Respondent v. CITY OF MEDFORD, an incorporated Subdivision of the State of Oregon and Michael Dyal, City Manager of the City of Medford, as an Individual, and in his official capacity
- Cited By
- 2 cases
- Status
- Published