MARCO A. HERNANDEZ, District Judge.
Plaintiffs Miguel Monico and Shawn Watts bring this action against the City of Cornelius, City Manager Rob Drake, and Police Chief Ken Summers
Plaintiffs were both police officers with the City of Cornelius during the relevant time period. In October 2012, they signed a letter raising allegations of misconduct and corruption in the City of Cornelius Police Department, particularly in regard to then-Chief of Police Paul Rubenstein and then-Assistant Chief of Police Joe Noffsinger. Ex. 101A to Jan. 23, 2015 Franz Decl. Officers Mark Jansen and Doug Schuetz also signed the letter (referred to hereinafter as the "Corruption Complaint").
Before the Corruption Complaint was delivered to Drake and the City Council members, some of the signatories to the Corruption Complaint had discussed the allegations contained in the Corruption Complaint with other individuals. Jansen and Schuetz, on separate occasions, discussed the allegations with Catherine Small, a citizen of Cornelius and a member of the Community-Oriented Policing Committee Advisory Board (COPCAB). Small Depo. (Ex. 109 to Jan. 23, 2015 Franz Decl.) at 8-12, 14 (describing ride-along with Schuetz in April or May of 2012 during which he told her about corruption, deceit, and dishonesty in the police department);
Additionally, Schuetz, Jansen, and Watts shared allegations contained in the Corruption Complaint with Washington County District Attorney Robert Hermann and Chief Deputy District Attorney Roger Hanlon before delivering the Corruption Complaint to Drake and the City Council members on October 17, 2012. Hanlon Depo. (Ex. 110 to Jan. 23, 2015 Franz Decl.) at 40-41; Schuetz Depo. (Ex. 111 to Jan. 23, 2015 Franz Decl.) at 10-11. Schuetz and Watts met with Hermann in May, June, or July 2012 about their concerns in the police department. Schuetz Depo. (Ex. 111 to Jan. 23, 2015 Franz Decl.) at 10-11. Watts also met with Hanlon and left Hanlon with a packet of materials that contained a draft of an ethics complaint to the Department of Public Safety Standards and Training (DPSST). Hanlon Depo. (Ex. 110 to Jan. 23, 2015 Franz Decl.) at 40-41; Ex. 102 at 2-9. Jansen drafted a memorandum containing allegations of corruption which he sent to Hanlon in August 2012. Hanlon Depo. (Ex. 110 to Jan. 23, 2015 Franz Decl.) at 41; Ex. 102 at 10-14.
After receiving the Corruption Complaint on October 17, 2012, Drake showed it to Debbie Roth in the City Recorder's Office who read it and then made a copy and sent it to City Attorney Chad Jacobs. Drake Depo. (Ex. 114 to Jan. 23, 2015 Franz Decl.) at 18. Based on advice he received from Jacobs, Drake concluded that the Corruption Complaint was a public document.
In responses to interrogatories, Defendants state that because the Corruption Complaint was addressed "to other people," had been distributed "to other people," and included statements that "we write to you now to inform you and the public," and that "[w]e . . . believe that the City Council will act based on the information we are reporting to the City and to the citizens of Cornelius," Drake concluded the Corruption Complaint was a public document intended to inform the public and Cornelius citizens of the allegations contained therein. Ex. 105 to Franz Decl. (Defs.' Resp. to Interr. No. 1). Additionally, the Corruption Complaint did not request that it be kept confidential. Ex. 101A to Franz Decl.
Drake showed the Corruption Complaint to Rubenstein after showing it to Roth. Drake Depo. (Ex. 4 to Thenell Decl.) at 19. He also, at some point, gave copies to Noffsinger and Brian Schmid,
On October 18, 2012, the day after receiving the Corruption Complaint, Drake sent an email to the following individuals: Brian Schmid, Bruce Schmid, Craig Wellhouser, Doug Schuetz, Dustin DeHaven, Jason Moser, Joe Noffsinger, John Calvert, Jon Kirkpatrick, Laura Chrisy, Mark Jansen, Miguel Monico, Paul Rubenstein, Marlene Thomas, and Watts. Ex. 103 to Franz Jan. 23, 2015 Decl. These are apparently all of the individuals who were working for the City of Cornelius Police Department at the time. Drake Depo. (Ex. 114 to Jan. 23, 2015 Franz Decl.) at 34 (Drake recalled that he sent the email to "[t]he entire police department").
In his email, addressed to Watts, Drake thanked Watts for delivering the Corruption Complaint and assured Watts that the matter would be taken seriously and fully investigated.
After Drake and City Council members received the Corruption Complaint, Watts gave the Corruption Complaint to Forest Grove Chief of Police Janie Schutz and, during the meeting in which Watts delivered the document to her, Watts indicated that the Corruption Complaint was going to be released to the media. Schutz Depo. (Ex. 115 to Jan. 23, 2015 Franz Decl.) at 5, 6, 14; S. Watts Depo. (Ex. 106 to Jan. 23, 2015 Franz Decl.) at 54. One of the signatories to the Corruption Complaint, Jansen, indicated that after the Corruption Complaint was given to the City, Monico contacted the West Bureau desk of the
Other members of the City of Cornelius community received copies of the Corruption Complaint from signatories to that Complaint.
On October 19, 2012, the following persons met at Small's house to discuss the Corruption Complaint: Watts, Jansen, Gerry Thompson, Billie Crowder, Harper, Small, Watts's wife Lisa, and Schuetz.
In early November 2012, the City gave the
On or about November 13, 2012, Summers was hired as the interim chief of the police department. Summers Depo. (Ex. 17 to Thenell Decl.) at 11. Eventually he was hired permanently. About a month or two after he was hired, Summers began posting what he referred to as "inspirational" posters in the men's restroom.
In deposition, DeHaven called these "little motivational posters" that Summers put up. (Ex. 6 to Thenell Decl.) at 49. DeHaven stated that some people, including himself, got a little annoyed at them, and specifically mentioned the one about "loyalty."
DeHaven also testified that at some unspecified point in time, he had a conversation with Summers about a complaint filed by DeHaven concerning an alleged hostile work environment which included allegations against Watts.
The next year, on July 26, 2013, Summers sent an email to all members of the police department regarding schedule changes. Ex. 18 to Thenell Decl. at 3-4. As a result of studying activity levels, he made changes to supervisory schedules.
In response, Summers responded to Monico in an email which he copied to Watts, Jansen, and Schuetz.
Sometime in 2013, a lieutenant position in the police department became open.
In separate civil litigation, Monico was a defendant in a federal civil rights action which was filed in March 2011. On April 10, 2013, Judge Papak issued a thirty-three page Findings & Recommendation (F&R) where, in pertinent part, he found that a "finder of fact could reasonably determine Gonzalez did not confess in the manner testified to by Monica [sic] under oath, and that Monica [sic] entirely fabricated his account of Gonzalez' confession." Plfs.' Ex. 20 at 22. Judge Papak also noted that a finder of fact could reasonably conclude that the first of two field tests described by Monico's testimony never took place.
On April 17, 2013, Summers emailed a copy of the F&R to Hanlon and City Attorney Jacobs. Plfs.' Ex. 21. Summers requested that Hanlon review the ruling, noting in particular footnote 6 on page 21.
On April 18, 2013, Summers received a letter back from Hermann, via email.
Summers placed Monico on administrative leave. Summers asked Noffsinger and Bruce Schmid, of the police department's Professional Standards Unit, to retrieve Monico's badge and gun. Schmid Depo. (Ex. 5 to Thenell Decl.) at 48-49. Monico was at home at the time.
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "`the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact."
Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present "specific facts" showing a "genuine issue for trial."
The substantive law governing a claim determines whether a fact is material.
If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary.
As noted above, each Plaintiff brings three claims: (1) a First Amendment claim under 42 U.S.C. § 1983; (2) a violation of Oregon's whistleblowing statute, Oregon Revised Statute § (O.R.S.) 659A.218; and (3) common law IIED claims.
In the Complaint, Plaintiffs allege that they expressed a matter of public concern in the Corruption Complaint and acted outside of their formal police officer duties when doing so. Compl. at ¶¶ 26, 38. They allege that the reckless and intentional dissemination of the Corruption Complaint to other City of Cornelius employees and to the
Additionally, Monico alleges that Summers's "premature" disclosure of Judge Papak's F&R to the District Attorney's Office further violated his First Amendment rights.
Defendants
In order to establish a First Amendment retaliation claim, Plaintiffs must show "(1) that [they] engaged in protected speech; (2) that the employer took adverse employment action; and (3) that [their] speech was a substantial or motivating factor for the adverse employment action."
The Supreme Court made clear in
To support their position that there is no First Amendment protection for Plaintiffs, Defendants rely on deposition testimony from each Plaintiff stating that he prepared, participated in, or signed the Corruption Complaint as a City of Cornelius police officer. Defendants argue that because Plaintiffs concede they were acting as police officers, they spoke pursuant to their official duties and thus, cannot base their First Amendment claims on the Corruption Complaint. Watts Depo. (Ex. 106 to Jan. 23, 2015 Franz Decl.) at 51 (stating that he participated in the Corruption Complaint as a police officer employed by the City of Cornelius); Monico Depo. (Ex. 108 to Jan. 23, 2015 Franz Decl.) at 16-17 (stating that he signed the Corruption Complaint as part of his duties as a police officer for the City of Cornelius).
In
The Court noted that "[t]he controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy" and importantly, "the parties . . . do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties."
The Court nonetheless made several observations to guide courts going forward. It stated that it was not dispositive that the plaintiff had made his views inside his office rather than publicly because employees in some cases may receive First Amendment protection for expressions made at work.
In a 2013
The
In considering the
In
Second, the "subject matter of the communication" is "highly relevant to the ultimate determination whether the speech is protected by the First Amendment."
Contrary to Defendants' argument, the fact that the Plaintiffs each testified in deposition that they participated in and signed the Corruption Complaint as part of their duties as City of Cornelius police officers is not dispositive of the issue. Their testimony is directed to the ultimate conclusion but it omits any relevant facts. Moreover, the summary judgment record is lacking in relevant evidence. There are no job descriptions. There is no indication of whether the City Manager (Drake), the Mayor, or the City Council Members, all of whom were addressees of the Corruption Complaint, are part of the "chain of command" above the police chief. The "chain of command" factor is highly relevant. When the public employee's complaint attacks the conduct of the assistant chief and the chief, the next person up the line may well be the city manager, mayor, or city council. It could be that these persons are properly considered to be inside the chain of command in this situation. Or, they could be outside the chain of command. Without some sort of organizational chart, City bylaws, or testimony on the issue, the record fails to include facts material to the inquiry. In their Response Memorandum, Plaintiffs state that they were not employed by the City to investigate and report corruption or misconduct, but they offer no evidence to support that assertion.
Construing the facts in favor of Plaintiffs, the nonmoving parties, I assume that the addressees of the Corruption Complaint were outside the police department's chain of command. Given the subject matter of the letter, when looking at the evidence in a light most favorable to Plaintiffs, there are factual issues regarding whether Plaintiffs made the Corruption Complaint pursuant to their official duties.
"On summary judgment in a First Amendment retaliation case, a plaintiff must provide evidence of materially adverse employment actions that are reasonably likely to deter protected speech."
In the allegations asserted in support of their First Amendment claims, Plaintiffs identify only the dissemination of the Corruption Complaint by Drake and the F&R by Summers as the alleged retaliatory adverse actions. Compl. at ¶¶ 25-29, 37-42. In their Response Memorandum, Plaintiffs rely on additional alleged retaliatory conduct. I address the dissemination allegations first, then turn to the additional conduct.
Defendants contend "there was no retaliation" and that the argument that Plaintiffs were retaliated against when Drake disseminated the Corruption Complaint is "baseless." Defs.' Mem. at 22. Defendants note the following in support of their argument: (1) various purposes of the Corruption Complaint were to (a) inform the City Manager and City Council members, as well as the public, of the allegations; (b) let the City Manager, Mayor, and City Council know that the information in the Corruption Complaint had already been given to the Oregon Department of Justice and the Washington County District Attorney's Office; (c) inform the City Manager, Mayor, and City Council that a criminal investigation was underway targeting the reported coverup of alleged misconduct or criminal conduct committed by then-Chief of Police Rubenstein; (d) ask the City Manager, Mayor, and City Council to review a four-page memo that had been delivered to Washington County Chief Deputy District Attorney Roger Hanlon; (e) let the City Manager, Mayor, and City Council know that in May 2012, Watts had contacted the Oregon Department of Justice; (f) let the City Manager, Mayor, and City Council know that an outside law enforcement agency had begun an investigation into the information provided by the Forest Grove Officer; and (g) let the City Manager, Mayor, and City Council know that the authors of the Corruption Complaint were reporting the information contained in the letter to the citizens of Cornelius;
(2) the Corruption Complaint itself placed no prohibition or restrictions on its dissemination and there was no request that it be kept confidential or no assertion that it was not a public record; additionally, the officers could not reasonably request that the letter remain confidential after outlining in the letter all of the agencies that had already been contacted and supplied with the information in the letter;
(3) the Corruption Complaint was sent to elected officials of the City who have no supervisory duties over Plaintiffs and who had no authority or justification to keep the letter from anyone who made a request for a copy of it, including the
(4) other officers already knew of the contents of the Corruption Complaint and who signed it, including Officer Jason Moser who initially participated in drafting the Corruption Complaint but did not sign it; and
(5) Plaintiffs, Jansen, and Schuetz gave copies of the Corruption Complaint to members of the public and discussed the Corruption Complaint in meetings with others without requiring the contents to remain confidential.
Based on these reasons, Defendants assert that the Corruption Complaint was a public record available to anyone who requested it and anyone who had a copy of it could give it to anyone else. They argue that the Corruption Complaint was not protected under any state or federal law or any type of privilege. They contend that as a matter of law, none of the Defendants can be held liable under the First Amendment for any dissemination of the Corruption Complaint to anyone, including the
Adapting Defendants' argument to the language used in First Amendment retaliation claims in the employment context, Defendants rely on the undisputed evidence that members of the community already knew about the allegations, and some had even learned of the allegations from at least one of the Plaintiffs, to contend that Drake's conduct was not adverse. Given that members of the community already knew about the allegations and that the Corruption Complaint itself made clear that Plaintiffs intended to inform the public about the allegations, Defendants argue that dissemination of the Corruption Complaint cannot, as a matter of law, be reasonably viewed as an action that was likely to deter or chill protected speech. Thus, whether it is called an "adverse employment action" or "retaliation," Defendants' contention is that because Plaintiffs intended the document to become public and to address issues of public concern, because they did not request that it be treated confidentially, and most importantly, because they themselves discussed the allegations contained in the Corruption Complaint and the actual Corruption Complaint with community members, Drake's dissemination of the Complaint to Rubenstein and Noffsinger and others cannot be said to have been in retaliation for protected speech or to be an action that was likely to deter protected speech.
At oral argument, Plaintiffs' counsel confirmed that disseminating the Corruption Complaint was one of the adverse actions taken against Plaintiffs. Although he recognized that the allegations in the Corruption Complaint would have to be disclosed to allow the requested investigation to occur, Plaintiffs' counsel contended that disclosure to Noffsinger and Rubenstein, the individuals who were alleged to be corrupt, as well as disclosure to the fellow officers in the police department, was problematic. He further suggested that it was an issue of timing, meaning that while disclosure may have been inevitable, it did not need to occur immediately.
As I interpret Plaintiffs' argument, Plaintiffs do not contend that Drake was prohibited from disseminating the Corruption Complaint generally, but instead, his conduct here is actionable because his otherwise permissible dissemination was motivated by his desire to punish Plaintiffs and retaliate against them. I agree with Plaintiff that the law recognizes that an employer's otherwise permissible conduct may subject it to liability when such conduct occurs in retaliation for protected speech or other protected conduct. Thus, for example, even though an employer may have the right to fire an employee at will, the employer cannot do so for the purpose of retaliating against an employee who engaged in protected conduct such as filing a sexual harassment complaint or a worker's compensation claim.
However, the facts of this case support Defendants' position. Given the undisputed facts recited by Defendants which establish that Plaintiffs intended the Corruption Complaint to be publicized, had already shared the allegations with other members of the community, and made no request themselves that the document be kept confidential, they cannot show that dissemination of the Corruption Complaint was adverse to them in any way. Moreover, given that they admit that dissemination of the Corruption Complaint generally (including to the
Defendants argue that sending Judge Papak's public opinion to the District Attorney's Office cannot be actionable as a matter of law. They note that the F&R is a public record and is available to any member of the public. Moreover, Defendants note that it was the District Attorney's Office, not Summers, that placed Monico on the Brady List.
I agree with Defendants. The F&R was a public document, filed in a public record. Plaintiffs cannot plausibly argue that Summers was prohibited from providing the District Attorney's Office with a copy of the F&R. Plaintiffs again focus on timing by repeatedly referring to Summers's action as "premature." But, they fail to show that the timing of Summers's forwarding the document to the District Attorney's Office caused any harm to Monico. I focus here on Summers's act of distributing the F&R to the District Attorney's Office. His placement of Monico on administrative leave is addressed separately below. While the response by the District Attorney's Office to the F&R suggests that it considered Monico to be a "Brady List" witness, this was, as Defendants note, an action by the District Attorney's Office, not Summers. Summers, not the District Attorney's Office, is the Defendant here and only his actions are at issue. Additionally, because the District Attorney's Office was not his employer, this was not an adverse "employment" action. And, given that the District Attorney's Office was inevitably going to learn of the F&R at some point, any harm must be attributable to when Summers gave the document to the District Attorney's Office. There is no evidence in the record demonstrating that adverse action occurred because of the timing.
Even if placement on the Brady List can be attributed to Summers's having sent a copy of the F&R to the District Attorney's Office when he did, Monico fails to establish how placement on the Brady List was adverse to him. As Hermann testified in deposition, the District Attorney's Office has "never refused a case from [Monico]" and it "actively prosecut[es] his cases." Hermann Depo. (Ex. 123 to Feb. 27, 2015 Franz Decl.) at 14. The action taken by the District Attorney's Office has been limited to notifying those defendants with pending matters in which Monico is a witness, of the F&R. Plfs.' Ex. 22; Hermann Depo. (Ex. 123 to Feb. 27, 2015 Franz Decl.) at 14. Monico fails to show how this notification has negatively affected him. As a result, without any evidence that he suffered harm in some way, he fails to show that Summers's provision of the F&R to the District Attorney's Office in April 2013 was reasonably likely to deter protected speech. The allegation that Summers violated Monico's First Amendment rights by forwarding a copy of the F&R to the District Attorney's Office does not support a claim.
In response to the summary judgment motion, Plaintiffs retreat from the allegations in the Complaint suggesting that the retaliatory conduct is limited to disseminating the Corruption Complaint and the F&R. Instead, they contend that the following actions were taken against them in response to their protected speech: (1) Summers's "demeaning remarks about Plaintiff Watts" to DeHaven; (2) Summers's "lashing out via email to Plaintiff Monico"; (3) Summers's hanging of "inspirational posters"; (4) Summers's "premature" action of recommending to the District Attorney's Office that Monico be placed on the Brady List; (5) Summers's authorizing Schmid and Noffsinger to retrieve Monico's badge and gun at Monico's home; and (6) Summers's placement of Monico on administrative leave. Plfs.' Mem. at 10-11. With no discussion of these discrete acts, Plaintiffs simply argue that reasonable jurors could conclude that the actions were retaliatory in response to their protected speech.
None of these alleged actions were committed by Drake. Thus, summary judgment is granted to him. The only alleged retaliatory conduct taken against Watts alone is the statement by Summers to DeHaven when they were discussing DeHaven's hostile environment claim against Watts, that maybe Watts had a learning disability. This is too trivial to be legally sufficient retaliation.
Remaining are three alleged retaliatory actions against Monico alone and one alleged retaliation action as to both Plaintiffs. In regard to the alleged retaliation arising out of the retrieval of Monico's gun and badge at his home after placing him on administrative leave, the record shows that Summers sent Schmid and Noffsinger to take Monico's badge and gun because he had been placed on administrative leave and he was not to take any action as a police officer. Schmid Depo. (Ex. 5 to Thenell Decl.) at 48-49. When asked if Schmid thought it was a good idea to do this at Monico's home, Schmid noted that Monico was at his home, had been placed on administrative leave, and "[t]hey didn't want to bring him in. Whether he was at home or brought in, the outcome still would have been the same."
Even construing the evidence in a light most favorable to Plaintiffs, this deposition testimony does not establish that retrieving an officer's gun and badge when placed on administrative leave is aberrant police department conduct. It also does not establish that retrieving a gun and badge from an officer at his or her home had never occurred before. The testimony shows only that Rubenstein's gun and badge were similarly taken and that, apparently, this did not occur at Rubenstein's home but instead, it occurred somewhere else and then he was driven home. The fact that Monico called his attorney once Schmid and Noffsinger went to his home to retrieve the items and counsel worked out an arrangement allowing Monico to keep the badge and gun does not establish that sending Schmid and Noffsinger to retrieve the items was retaliatory. The evidence shows that retrieving the badge and gun was consistent with being placed on administrative leave and is not independently actionable as separate retaliatory conduct. Instead, it is a component of placing an officer on administrative leave.
Next, for the reasons explained above regarding Summers's alleged demeaning remark about Watts, Summers's "lashing out" in an email to Monico is not adverse, retaliatory conduct which would reasonably deter someone from engaging in protected conduct. Summers told Monico that he demanded respect for the chain of command and "our system," found his email offensive and disrespectful, and did not understand why Monico found the motivational posters so offensive. Ex. 18 to Thenell Decl. He also offered to engage in face to face conversation on "these issues."
As to the remaining alleged actions of placing inspirational posters in the restroom and placing Monico on administrative leave, when considered in a light most favorable to Plaintiffs, I find that there are issues of fact as to whether these were sufficiently retaliatory as to deter a reasonable person from engaging in protected conduct. The placement of inspirational posters is different in kind than the other instances of demeaning or hostile remarks made about or to Watts or Monico by Summers. First, in contrast to an offhand comment or an email, the hanging of posters is more akin to officially sanctioned conduct by the department. Second, the public placement of the posters creates a significantly greater chance of communicating hostility and divisiveness to the entire police department. Even DeHaven acknowledged that at least one of the posters implied that the four members of the police department who signed the Corruption Complaint were "holding the department back[.]" DeHaven Depo. (Ex. 6 to Thenell Decl.) at 51. Construing the facts in a light most favorable to Plaintiff, a reasonable juror could conclude that the posters contained thinly veiled criticisms of Plaintiffs. And, third, while ostracism, divisiveness, or hostility may not in many contexts rise above the trivial level, when the message is prominently displayed in a public location in a law enforcement agency where teamwork is often essential to protect the safety of officers and the public, Summers's hanging of the inspirational posters could be viewed as an actionable adverse employment action because it could reasonably deter a person from engaging in future protected conduct.
Finally, as
Although the record does not establish what consequences Monico experienced as a result of being placed on administrative leave or for how long he remained on such leave,
Although I agree with Defendants that Drake's dissemination of the Corruption Complaint and Summers's provision of the F&R to the District Attorney's Office is not retaliatory/adverse conduct sufficient to support Plaintiffs' First Amendment claims, in an abundance of caution I address Defendants' alternative qualified immunity argument on this issue. "Qualified immunity protects government officials from civil damages `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'"
Analysis of a qualified immunity claim requires the court to determine whether, taking the facts in the light most favorable to the party asserting injury, the alleged conduct violated a constitutional right and whether the right was clearly established at the time of the alleged violation.
In order to be clearly established, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."
Even assuming that Drake's dissemination of the Corruption Complaint to Noffsinger, Rubenstein, the
In summary on the First Amendment claims, there are issues of fact as to whether Plaintiffs' provision of the Corruption Complaint was part of their official duties. Nonetheless, I grant the summary judgment motion as to the claims against Drake because his act of disseminating the Corruption Complaint is not cognizable adverse/retaliatory employment action, or alternatively, he is entitled to qualified immunity for his actions. I also grant summary judgment to Summers as to the act of providing the F&R to the District Attorney's Office because that is also not cognizable adverse/retaliatory employment action, or alternatively, he is entitled to qualified immunity on that part of the claim. I further grant summary judgment to Summers as to all other alleged acts of retaliation except for the hanging of the inspirational posters and the placement of Monico on administrative leave. When the facts are construed in Plaintiffs' favor, these two actions could constitute unconstitutional retaliatory conduct. Furthermore, the law as to all alleged retaliatory conduct other than the dissemination of the Corruption Complaint and the F&R is clearly established and Summers is not entitled to qualified immunity for such conduct.
Defendants argue that the only proper Defendant for the Oregon statutory whistleblower claims and the IIED claims is the City. Defendants, however, cite an outdated version of the Oregon statute in support of this argument. The former version of the relevant statute, O.R.S. 30.265(1), provided that for claims subject to the Oregon Tort Claims Act, O.R.S. 30.260 — 30.300 (OTCA), which include claims alleging a violation of Oregon whistleblowing statutes and IIED,
However, the current version of the OTCA, effective on January 1, 2012, provides that a tort action "may be brought and maintained against an officer . . . whether or not the public body is also named as a defendant" if an action "alleges damages in an amount greater than the damages allowed under . . . ORS 30.272[.]" O.R.S. 30.265(4). Pursuant to O.R.S. 30.272, the liability of a local public body and its "officers, employees and agents acting within the scope of their employment or duties" for personal injury claims "to any single claimant" arising out of "a single accident or occurrence" is "$600,000 for causes of action arising on or after July 1, 2012, and before July 1, 2013." O.R.S. 30.272(2)(d). The limitation on damages "to all claimants" for such claims is "$1,200,000 for causes of action arising on or after July 1, 2012, and before July 1, 2013." O.R.S. 30.272(3)(d).
In their Complaint, Plaintiffs allege damages in the amount of $1,500,000. Thus, they contend that Drake and Summers are properly named Defendants in the case. Defendants fail to make any mention of this issue in their Reply Memorandum. Because the current version of the statute does not require that the City be substituted for the individual Defendants in this case with $1.5 million in alleged damages, I reject Defendants' argument.
Plaintiffs bring their whistleblower claims under O.R.S. 659A.218 which provides that
O.R.S. 659A.218.
Matters described in O.R.S. 659A.203(1)(b) include the employee's disclosure of any information the employee reasonably believes is evidence of (A) a violation of any federal or state law, rule, or regulation by the state, agency or political subdivision; or (B) mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety resulting from action of the state agency or political subdivision. O.R.S. 659A.203(1)(b). Because the Corruption Complaint could arguably fit under either (A) or (B), it is a matter described in O.R.S. 659A.203(1)(b) and thus, comes within the purview of O.R.S. 659A.218.
Defendants argue that the whistleblower claims are time barred. Alternatively, Defendants contend that Plaintiffs waived the whistleblower claims by disclosing their names and the Corruption Complaint to several members of the public both before and after Drake disclosed the Corruption Complaint. Because I agree with Defendants on the statute of limitations issue, I decline to address the waiver issue.
Drake disclosed the identity of the four officers who signed the Corruption Complaint on October 18, 2012. Defs.' Ex. 103. A copy of the Corruption Complaint was provided to the
Regardless of which disclosure date is used (the October 2012 date of the email or the November 2012 date of the
Plaintiffs argue that a September 2013 story in the
The whistleblower statute makes it an unlawful employment practice to
"The continuing tort doctrine applies to repeated instances or continuing acts of the same nature where there is no discrete act or incident that can be fairly determined to have caused the alleged harm."
The point of the continuing violation doctrine is to allow an action for the cumulative effects of a continuing system or pattern of conduct which occurs both inside and outside the limitations period.
Here, the publication (by the Forest Grove paper) and re-publication (by the
Additionally, according to the Forest Grove article published in September 2013, the investigation by the Oregon State Police and the District Attorney's Office into the allegations raised by the Corruption Complaint was already complete. Ex. 12. to Thenell Decl. Thus, the publication in the Forest Grove paper in September 2013 and the republication in the
Plaintiffs state that during discovery, they learned of an additional disclosure of the Corruption Complaint which allegedly occurred in November 2012 when Rubenstein ordered Noffsinger to deliver a copy of the Corruption Complaint to Kerry Aleshire, the former Forest Grove Police Chief. Although the disclosure occurred outside of the limitations period, Plaintiffs assert they did not learn of this disclosure until taking Aleshire's deposition in a separate case in March 2014. Thenell Decl. at ¶ 2. Based on this, they argue that the disclosure by Noffsinger at Rubenstein's request is a separate violation of O.R.S. 659A.218 which was not actionable until discovered in March 2014 and thus, is timely.
Plaintiffs cite no law in support of their discovery rule argument.
Here, the applicable statute of limitations is found in O.R.S. 659A.875(6). That statute provides that "[n]otwithstanding ORS 30.275(9), a civil action . . . against a public body . . ., or any officer, employee or agent of a public body . . ., based on an unlawful employment practice must be commenced within one year after the occurrence of the unlawful employment practice[.]" O.R.S. 659A.875(6). I found no Oregon or District of Oregon cases discussing whether the discovery rule applies to O.R.S. 659A.875. Defendants fail to discuss this issue in their Reply Memorandum.
Without any governing caselaw already deciding the issue, the court applies "the statutory [interpretation] methodology established in
As to other words in the statute, two Oregon cases have examined statutes of limitations using the words "occur" or "occurrence," the latter being the same word as in O.R.S. 659A.875(6). First, in
Second, in
The court rejected the argument. O.R.S. 659.121 provided that ". . . the civil suit or action shall be commenced within one year of the occurrence of the alleged unlawful employment practice." The
Additionally, in a case in this Court, Judge Aiken rejected the plaintiff's argument that his Oregon statutory whistleblower claim did not accrue until he received a written denial of the grievance he filed over his discharge, which had occurred several months earlier.
Given the statute's lack of an express discovery provision and its use of the word "occurrence" which the Oregon Supreme Court interpreted in
Plaintiffs allege that the City and Drake inflicted severe emotional distress on them by disseminating the Corruption Complaint to Noffsinger, Rubenstein, and other City of Cornelius employees. Compl. at ¶¶ 35, 48. Monico adds that Summers inflicted emotional distress on him by prematurely disclosing the F&R to the District Attorney's Office which effectively placed Monico on the Brady List, and by placing him on administrative leave.
Defendants move for summary judgment on the IIED claims, contending that as a matter of law, the alleged acts do not constitute an extraordinary transgression of the bounds of socially tolerable conduct. I agree with Defendants.
To sustain their IIED claims, Plaintiffs must show that Defendants intended to inflict severe emotional distress, that Defendants' acts were the cause of Plaintiffs' severe emotional distress, and that Defendants' acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.
In a 2008 case, the Oregon Court of Appeals explained the following parameters of the tort:
None of the alleged conduct here rises to the level required to support an IIED claim. As to the dissemination of the Corruption Complaint, the undisputed facts are that the Plaintiffs discussed the allegations with others before giving it to Drake and they wanted the public to learn about the allegations. As explained above, Plaintiffs concede that Drake's disclosure of the Corruption Complaint was necessary and inevitable. While they complain about the timing, they fail to establish harm from the timing. Given the undisputed facts, Drake's dissemination of the Corruption Complaint does not amount to an extraordinary transgression of the bounds of socially tolerable conduct. Similarly, Summers's provision of the F&R to the District Attorney's Office also does not support an IIED claim as a matter of law. As explained above, this was a public document which Summers provided to a public agency. While Plaintiffs contend Summers acted "prematurely," there is no independent harm that occurred as a result of the timing. Additionally, Summers's placement of Monico on administrative leave, right or wrong, is not outrageous conduct in an employment setting. Furthermore, the fact that the officers intended to retrieve Monico's gun and badge was consistent with Monico being placed on administrative leave. The fact that the officers went to Monico's home may have been rude or hostile, but it is not outrageous conduct. The record does not support the assertion that the officers "took up tactical positions," and even if it did, it is not sufficiently outrageous to support the claim. Finally, any assignment of what Monico considered to be "menial" jobs while on administrative leave may also be rude or humiliating, but it does not "go beyond all possible bounds of decency[.]"
In response to the motion, Plaintiffs cite to some of the alleged retaliatory acts described above in connection with the First Amendment claims, and contend that these further support their IIED claims. I reject this argument and conclude that Summers's alleged demeaning remark about Watts having a learning disability, Summers's email to Monico in response to Monico's criticisms of the new schedules, and Summers's hanging of the inspirational posters, do not, either individually or collectively, constitute socially intolerable behavior so outrageous as to be considered extreme and atrocious. Thus, I grant summary judgment to Defendants on Plaintiffs' IIED claims.
Defendants' summary judgment motion [31] is granted as to the Oregon statutory whistleblower claims and the IIED claims, and is granted in part and denied in part as to the First Amendment retaliation claims. Accordingly, remaining in the case are the First Amendment claims against Summers, the only remaining Defendant, for the allegedly adverse actions of hanging the inspirational posters and placing Monico on administrative leave.
IT IS SO ORDERED.