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D.Or.: Oregon Did Not Waive Sovereign Immunity With Regard To The FLSA By Implementing The Oregon Tort Claims Act (OTCA); FLSA Suit Dismissed

Dinicola v. Service Employees Intern. Union Local 503

Plaintiff was a past elected president of defendant SEIU Local 503.  The complaint alleged that the Oregon Department of Revenue (ODR) employed plaintiff and assigned him for a period of time to perform union duties pursuant to a written agreement by which ODR paid plaintiff’s wages and benefits and received reimbursement from Local 503.  Local 503 also paid plaintiff $400 per month as president’s pay.  The complaint further alleged that plaintiff attempted to collect unpaid overtime compensation by filing a lawsuit in the Circuit Court of the State of Oregon for Marion County, among other means.  The complaint further alleges that Local 503 opposed plaintiff’s claim for entitlement to overtime compensation and that certain Local 503 members criticized plaintiff and his claim.

The State of Oregon filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

The Court granted the State of Oregon’s Motion noting, “[b]ecause it did not expressly or impliedly waive its Eleventh Amendment immunity from suit in federal court for violation of the FLSA, the State of Oregon’s motion for judgment on the pleadings is granted.  Quillin v. State of Oregon, 127 F.3d 1136, 1138 (9th Cir.1997). Plaintiff’s authority does not support his waiver argument. In Butterfield v. State, the court held that an FLSA claim was a tort claim within the meaning of the Oregon Tort Claims Act, under which the state partially waived its sovereign immunity. 987 P.2d 569, 574 (Or.App.1999). The OTCA is not a waiver of Eleventh Amendment immunity, however. Estate of Pond v. Oregon, 322 F.Supp.2d 1161, 1165 (D.Or.2004). Not surprisingly, Clayton v. State of Oregon, 1990 WL 32088 (D.Or.1990), contains no discussion of Eleventh Amendment immunity, as the defense was clearly foreclosed at the time of the decision. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)overruling Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). A state does not waive Eleventh Amendment immunity in these circumstances. Quillin, 127 F.3d at 1139. The case of Chao v. State of Oregon, No. 03-6194-AA (D.Or.), did not yield an opinion and did not involve a suit by a citizen of a state against the state.”