FILED: May 8, 2002

GLENDA P. DURHAM,

Appellant,

v.

CITY OF PORTLAND,
a municipal corporation;
and ROBERT PHILLIPS,

Respondents.

Appeal from Circuit Court, Multnomah County.

William C. Snouffer, Judge.

Argued and submitted October 12, 2001.

Thane W. Tienson argued the cause for appellant. With him on the briefs was Landye Bennett Blumstein LLP.

Jenifer Johnston, Deputy City Attorney, argued the cause and filed the brief for respondents.

Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges.

KISTLER, J.

Affirmed.

KISTLER, J.

This is the fourth action that plaintiff has brought against her former employer, the City of Portland, and her former supervisor, Robert Phillips. In this action, plaintiff alleged that the City had discriminated against her because she was a woman and that it had retaliated against her for complaining about its employment practices. She also alleged that Phillips had assaulted her. The trial court dismissed plaintiff's assault claim and granted summary judgment on her discrimination and retaliation claims. We affirm.

In 1994, plaintiff began work as a human resource analyst in the City's affirmative action office. (1) Phillips was the director of that office. On April 1, 1995, various people approached plaintiff during a meeting and expressed interest in the office. Plaintiff referred them to Phillips. Shortly afterwards, Phillips walked up to plaintiff and "socked her" on the arm, apparently in response to plaintiff's having referred people to him. Plaintiff reported the incident to her immediate supervisor. The supervisor confronted Phillips, who denied hitting plaintiff.

In December 1995, plaintiff was involved in a car accident. Shortly after that, she underwent surgery and chemotherapy for breast cancer. She was out of work for several months, recovering from both the accident and the surgery. In May 1996, her doctor released her to return to work on a part-time basis. Plaintiff asked Phillips if she could work part time in the office and part time from her home, an arrangement approved by her doctor so long as she installed ergonomic workstations in her home and her office. Phillips accepted her part-time office work arrangement. He told plaintiff, however, that they needed to develop a work agreement, pursuant to department policy, regarding plaintiff's request to work part time at home.

While plaintiff and Phillips were trying to arrange a work agreement, plaintiff came to believe that Phillips was attempting to prevent her return to work by failing to accommodate her request for an ergonomic work station, a flexible work schedule, and telecommuting privileges. She filed a complaint with the Bureau of Labor and Industries (BOLI) in July 1996. In October 1996, she filed an action in state court against Phillips and the City (State I). She alleged that Phillips and the City had violated former ORS 659.030 (2) because they had discriminated against her in the terms and conditions of employment and had threatened to fire her if she "continued in her efforts to establish a safe, ergonomic work station at her home." Plaintiff also brought an assault claim against both the City and Phillips, alleging that Phillips was acting within the course and scope of employment when he hit her on the arm in April 1995.

While State I was pending, the City experienced financial problems and made major budget cuts. In its 1997-1998 budget, the City eliminated the human resource analyst position in the affirmative action office--the position that plaintiff held. Plaintiff's job was eliminated, and she was laid off.

After plaintiff was laid off, she agreed to voluntarily dismiss her action in State I so that she could file a new state court action, adding claims arising out of her termination. Plaintiff filed a second complaint with BOLI and also a second state court action (State II). In State II, she added an allegation that a substantial factor in her termination was "retaliation and reprisal" for, among other things, her opposition to practices forbidden by state and federal law prohibiting discriminatory treatment on the basis of sex. All told, plaintiff alleged seven claims for relief arising out of the City and Phillips' employment practices. The City moved for summary judgment on plaintiff's first three claims for relief. The trial court granted the motion, ruling that those claims were untimely. (3) After that ruling, four claims for relief remained, one of which was plaintiff's assault claim against Phillips.

Plaintiff agreed to dismiss the remaining state law claims so that she could add them to a complaint that she had filed in federal court while State II was pending. In federal court, plaintiff alleged numerous federal- and state-law claims against Phillips and the City. Three of her federal-law claims for relief are relevant to this appeal. In her amended federal complaint, plaintiff alleged that the City had discriminated against her in the terms and conditions of her employment in violation of Title VII of the Civil Rights Act, 42 USC