Hutton v. Jackson County et al

Filing 54

AMENDED OPINION AND ORDER: This Opinion and Order is amended for the sole purpose of correcting a typographical error on page 7: under the second element of Eng, plaintiff must prove he spoke as a private citizen, not as a public employee. Opinion and Order 53 filed on 11/19/2010. Ordered and Signed on 11/23/2010 by Magistrate Judge Mark D. Clarke. (rsm)

Hutton v. Jackson County et al

Doc. 54

;: ILED' 10 t··.[!\' 2:3 16 :41 USDC·ORt1

I N T H E UNITED S T A T E S D I S T R I C T C O U R T FOR THE DISTRICT OF OREGON M E D F O R D DIVISION

RANDY HUTTON, Case N u m b e r 09-3090-CL Plaintiff, v.

AMENDED O R D E R
J A C K S O N C O U N T Y , a Political Subdivsion o f t h e S t a t e o f O r e g o n , a n d J O H N VIAL, Defendants. C L A R K E , M a g i s t r a t e Judge. P l a i n t i f f o r i g i n a l l y filed this a c t i o n a g a i n s t d e f e n d a n t J a c k s o n C o u n t y ( " t h e C o u n t y " ) o n J a n u a r y 9 , 2 0 0 9 , i n J a c k s o n C o u n t y Circuit C o u r t for the state o f Oregon, R a n d y H u t t o n v. J a c k s o n C o u n t y , C i v i l C a s e No. 0 9 - 0 4 1 9 - L 3 , alleging c l a i m s o f w r o n g f u l d i s c h a r g e , age discrimination, a n d w h i s t l e b l o w i n g (ORS 659A.203). O n o r about O c t o b e r 1 4 , 2 0 0 9 , p l a i n t i f f filed a n a m e n d e d c o m p l a i n t , a d d i n g d e f e n d a n t J o h n Vial ("Vial") as a n i n d i v i d u a l d e f e n d a n t , a n d a l l e g i n g a 4 2 U . S . C . § 1 9 8 3 c l a i m for v i o l a t i o n o f h i s F i r s t a n d F i f t h A m e n d m e n t r i g h t s , a n d s u p p l e m e n t a l s t a t e c l a i m s for w h i s t l c b l o w i n g (ORS 659A.203), w r o n g f u l discharge, a n d b r e a c h o f c o n t r a c t . P l a i n t i f f s e e k s e c o n o m i c damages, n o n - e c o n o m i c d a m a g e s , a n d a t t o r n e y ' s fees a n d costs. D e f e n d a n t t i m e l y filed a N o t i c e o f R e m o v a l to this c o u r t o n O c t o b e r 15, 2009. T h i s c o u r t Page 1 - AMENDED ORDER

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has j u r i s d i c t i o n pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. The parties have executed w r i t t e n c o n s e n t s t o e n t r y o f j u d g m e n t by a m a g i s t r a t e j u d g e (#10). B e f o r e t h e c o u r t is d e f e n d a n t s ' motion for summary j u d g m e n t (#16). F o r the reasons set forth below, defendants' motion is granted in its entirety.

BACKGROUND
C o n s t r u i n g t h e f a c t s in t h e l i g h t m o s t f a v o r a b l e t o t h e n o n - m o v a n t , t h e r e c o r d r e v e a l s t h e following: ' In 1976, P l a i n t i t f w a s hired to fill a non-union supervisory position w i t h the County's P a r k s a n d R e c r e a t i o n D e p a r t m e n t . T h e C o u n t y d i d n o t h a v e a w r i t t e n a t - w i l l p o l i c y a t t h a t time. In the absence o f any clear policy to the contrary, Neil Ledward, Director o f Parks and Recreation from 1961 to 1991, and p l a i n t i f f s supervisor Larry Lloyd, Superintendent o f Parks from 1973 to 1 9 9 3 , b e l i e v e d t h a t e m p l o y e e s c o u l d o n l y b e t e r m i n a t e d for c a u s e . I t i s p o s s i b l e t h a t o n e o r b o t h o f them told p l a i n t i f f he could only be terminated for cause w h e n he was hired. Throughout the d u r a t i o n o f h i s e m p l o y m e n t , p l a i n t i f f s u b j e c t i v e l y b e l i e v e d h e c o u l d o n l y b e t e r m i n a t e d for c a u s e . O n D e c e m b e r 7 , 2 0 0 0 , the C o u n t y p r o m u l g a t e d P o l i c y # 5 - 4 2 , w h i c h p r o n o u n c e d t h a t , i n accordance w i t h state law, all employees o f the County were at-will employees, regardless o f an e m p l o y e e ' s p r o b a t i o n a r y o r r e g u l a r status. O n J a n u a r y 4 , 2 0 0 1 , t h e C o u n t y ' s H u m a n R e s o u r c e s D e p a r t m e n t i s s u e d an i n t e r - o f f i c e m e m o a d d r e s s i n g , i n p a r t , P o l i c y # 5 - 4 2 , n o t i n g t h a t i t w a s signed by "the Board" and adopted the previous month, and requiring that all current

' O n l y t h o s e facts p e r t i n e n t t o t h e m o t i o n a n d n e c e s s a r y f o r a n u n d e r s t a n d i n g o f t h e C o u r t ' s r u l i n g a r e i n c l u d e d . T o t h e e x t e n t f a c t s are i n c l u d e d a s t o w h i c h o b j e c t i o n h a s b e e n made, the objection is overruled; otherwise, the objections m a d e in p l a i n t i f f s motion to strike ( # 3 2 ) are m o o t . Page 2 - A M E N D E D O R D E R

management employees submit a signed copy by January 31, 2001. P l a i n t i f f signed the policy, recording his protest on the d o c u m e n t b e l o w his signature. In 2003, p l a i n t i f f was p r o m o t e d to Parks Program Manager. In that position, p l a i n t i f f reported directly to Paul Korbulic, Director o f the County's Roads and Parks Department, and Gerry Douglas, the Deputy Director. In February 2007, J. Domis succeeded Douglas as Deputy D i r e c t o r . O n J u l y 1 , 2 0 0 7 , b u d g e t s h o r t f a l l s c a u s e d t h e C o u n t y to d i s c o n t i n u e plaintiffls "take h o m e " v e h i c l e p r i v i l e g e s , w h i c h h e h a d e n j o y e d s i n c e 1976, a n d r e s t r i c t e d t h e u s e o f C o u n t y vehicles to daytime use for official business only. O n N o v e m b e r 2 6 , 2 0 0 7 , Domis issued p l a i n t i f f a w r i t t e n r e p r i m a n d for u s i n g a C o u n t y v e h i c l e t o d r i v e h o m e for l u n c h , a n d c a u t i o n e d that as a manager he was expected to set an example for the public and his co-workers. O n March 3, 2008, defendant Vial succeeded Korbulic as Director. Vial conducted t r a i n i n g a n d h e l d m a n a g e m e n t t e a m m e e t i n g s , w h i c h p l a i n t i f f a t t e n d e d , four t i m e s b e t w e e n April 22 and May 29 o f 2 0 0 8 , during which the proper use o f County vehicles was addressed. P l a i n t i f f challenged the policy and expressed his disagreement with it during these meetings. O n July 2, 2 0 0 8 , Vial i s s u e d p l a i n t i f f a w r i t t e n r e p r i m a n d for v i o l a t i n g P o l i c y # 8 - 0 2 , w h i c h p r o h i b i t s c o u n t y e m p l o y e e s from m a k i n g o r r e c e i v i n g c a l l s w h i l e driving, a f t e r p l a i n t i f f r e c e i v e d a c i t a t i o n for running a red light and talking on his cell phone while driving a County vehicle. A s P a r k s P r o g r a m M a n a g e r , p l a i n t i f f w a s r e s p o n s i b l e for t h e C o u n t y ' s e n t i r e p a r k s p r o g r a m , i n c l u d i n g t h e C a n t r a l l - B u c k l e y P a r k ( " C - B Park"). P u r s u a n t to a 2 0 0 4 o p e r a t i n g agreement, C-B Park was managed by the Greater Applegate Community Development Corporation ("GACDC"), a non-profit corporation. In early 2007, at GACDC's request, the County applied for and received two Oregon State Parks grants totaling $253,225 for

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improvements to C-B Park. In August 2007, the County and GACDC entered into an agreement calling for GACDC to raise $203,225 and for the County to contribute an additional $50,000 to cover the total costs o f the projects, and setting a completion date o f December 3 1 , 2 0 0 8 . Over time, plaintift1s relationship with GACDC and its officers became tense, due at least in part to his increasing concerns with the manner in which GACDC was managing the grant funds and p e r c e p t i o n t h a t G A C D C was v i o l a t i n g m u l t i p l e t e r m s o f the 2004 o p e r a t i n g a g r e e m e n t . Plaintiff: Vial, and Domis discussed these concerns in several meetings during the spring and summer o f 2008. On June 3, 2008, Domis and Vial requested that County Auditor's Office conduct an audit o f the C-B Park grant projects. Plaintiff was not informed o f the request. In mid-November 2008 Tanya Baize ("Baize"), an auditor with the Auditor's Office, p h o n e d p l a i n t i f f a n d r e q u e s t e d b a c k g r o u n d i n f o r m a t i o n r e g a r d i n g t h e C-B P a r k p r o j e c t s . O n November 19, 2008, plaintiff sent Baize a 3 page memorandum describing the problems he perceived regarding GACDC's management o f the state grant funds and C-B Park generally, and attached eight supporting documents. On November 24, 2008, Vial confronted plaintiff about the memorandum, which plaintiff had submitted to Baize without informing Vial. Vial told plaintiff he was "going to have to make some changes" i f h e did not see improvements in p l a i n t i f f s performance. On December 4, 2008, Vial and Domis met with plaintiff to discuss a written complaint from GACDC dated November 2 5 , 2 0 0 8 , accusing plaintiff o f removing firewood from C-B Park without payment or permission. Plaintiff admitted that he removed wood from the park, which he believed was permissible, but also admitted he exercised poor j u d g m e n t in doing so considering the contentious nature o f his relationship with GACDC. During this meeting, Vial

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and Domis also learned that earlier that day, p l a i n t i f f had stopped for a personal doctor's appointment while driving a County vehicle to Emigrant Lake to meet with another County employee. P l a i n t i f f felt this conduct was permissible since the personal stop was incidental to the job-related trip. Domis and Vial, however, viewed these two incidents as part o f a larger p a t t e r n o f i n s u b o r d i n a t i o n a n d m i s c o n d u c t . Accordingly, p l a i n t i f f s e m p l o y m e n t was t e r m i n a t e d on December 1 0 , 2 0 0 8 .

LEGAL STANDARD
Pursuant to Rule 56( c), summary j u d g m e n t "should be rendered, i f the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to j u d g m e n t as a matter o f l a w . " Fed. R. Civ. P. 56(c); see Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002). The c o u r t c a n n o t w e i g h t h e e v i d e n c e o r d e t e r m i n e t h e t r u t h b u t m a y o n l y d e t e r m i n e w h e t h e r there is a genuine issue o f fact. Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002). An issue o f fact is genuine " ' i f the evidence is such that a reasonable j u r y could return a verdict for the nonmoving party.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party must carry the initial burden o f proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The moving party meets this burden by identifying for the court portions o f the record on file which demonstrate the absence o f any genuine issue o f material fact. Id.; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en bane). In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the non-moving party. Allen v. City o f Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995). All Page 5 - AMENDED O R D E R

reasonable inferences are d r a w n in favor o f the non-movant. G i b s o n v. Cnty. o f Washoe, 2 9 0 F . 3 d 1175, 1 1 8 0 ( 9 t h Cir. 2 0 0 2 ) . I f the m o v i n g party meets its b u r d e n w i t h a properly supported motion, the burden then shifts to the o p p o s i n g party to present specific facts which s h o w there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2); Auvil v. C B S "60 Minutes", 67 F.3d 8 1 6 , 8 1 9 (9th Cir. 1995); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 2 5 0 & n.4 (1986). S u m m a r y j u d g m e n t should b e g r a n t e d f o r t h e m o v a n t , i f a p p r o p r i a t e , in t h e a b s e n c e o f any s i g n i f i c a n t p r o b a t i v e e v i d e n c e tending to support the o p p o s i n g party's theory o f the case. Fed. R. Civ. P. 56(e); THI-Hawaii, Inc. v. First C o m m e r c e Fin. Corp., 627 F . 2 d 9 9 1 , 9 9 3 - 9 4 (9th Cir. 1980); First Nat'l B a n k v. Cities Servo Co., 391 U.S. 2 5 3 , 2 9 0 (1968). Conclusory allegations, unsupported by factual material, are insufficient to defeat a m o t i o n for s u m m a r y j u d g m e n t . Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the o p p o s i n g party must, b y affidavit o r as otherwise provided by Rule 56, designate specific facts w h i c h s h o w there is a genuine issue for trial. Devereaux, 263 F.3d at 1076.

DISCUSSION
B e c a u s e p l a i n t i f f s c l a i m s a r e all i n t e r r e l a t e d a n d h i n g e p r i n c i p a l l y o n t h e d e t e r m i n a t i o n o f w h e t h e r p l a i n t i f f s N o v e m b e r 2 0 0 8 m e m o r a n d u m c o n s t i t u t e s p r o t e c t e d activity, t h e c o u r t b e g i n s its analysis w i t h p l a i n t i f f s § 1983 claim.
I . P l a i n t i f f s Fourth Claim: 42 U.S.C. § 1983

P l a i n t i f f alleges a claim u n d e r § 1983 o n two constitutional bases: for violation o f his F i r s t A m e n d m e n t r i g h t s o f free s p e e c h , a n d f o r v i o l a t i o n o f h i s d u e p r o c e s s r i g h t s . T h e c o u r t a d d r e s s e s e a c h c l a i m in turn.

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A. 42 V . S . c . § 1983 - First Amendment Violation
P l a i n t i f f claims he was terminated in retaliation for reporting m i s m a n a g e m e n t o f public funds by a p u b l i c agency. P l a i n t i f f brings t h i s c l a i m a g a i n s t b o t h d e f e n d a n t s . T o e s t a b l i s h a c l a i m u n d e r § 1983, p l a i n t i f f m u s t p r o v e b o t h t h a t h e w a s d e p r i v e d o f a n existing federal right and that the deprivation occurred under c o l o r o f state law. See W e s t v. Atkins, 487 U.S. 42, 48 (1988). In order to determine w h e t h e r a g o v e r n m e n t employee's free speech rights have been violated, the court m u s t follow a five step sequential inquiry. E n g v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009), cert. denied, _ U.S. _ , 1 3 0 S.Ct. 1047 (2010). T h e p l a i n t i f f m u s t first p r o v e that (1) he spoke on a m a t t e r o f public concern; (2) he spoke as a private citizen, not as a public employee; and (3) his protected speech was a substantial o r motivating factor for an adverse e m p l o y m e n t action against h i m b y his public employer. Id. at 1070-71. I f the p l a i n t i f f p r o v e s e a c h o f t h e s e t h r e e e l e m e n t s , t h e b u r d e n s h i f t s t o t h e p u b l i c e m p l o y e r to s h o w (4) t h a t the e m p l o y e r h a d a n adequate j u s t i f i c a t i o n for treating t h e employee d i f f e r e n t l y f r o m o t h e r m e m b e r s o f t h e g e n e r a l p u b l i c , or, i n t h e a l t e r n a t i v e , (5) t h a t t h e e m p l o y e r w o u l d have r e a c h e d t h e s a m e a d v e r s e e m p l o y m e n t d e c i s i o n e v e n i n the a b s e n c e o f t h e employee's protected conduct. Id. at 1071-72.

1. Defendant John Vial
Defendants apparently concede that p l a i n t i f f s N o v e m b e r 2008 involved a m a t t e r o f p u b l i c c o n c e r n , b u t a r g u e t h a t p l a i n t i f f s c l a i m f a i l s b e c a u s e (1) p l a i n t i f f s m e m o r a n d u m w a s s e n t as part o f his j o b duties, thus he acted in his capacity as a public employee, n o t a private citizen; (2) p l a i n t i f f ' s m e m o r a n d u m w a s n o t a s u b s t a n t i a l o r m o t i v a t i n g factor i n t h e d e c i s i o n to t e r m i n a t e his employment; and (3) defendants would have reached the same decision to terminate p l a i n t i f f s

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employment even i f h e had never written the memorandum.

i. P l a i n t i f f s memorandum is not protected speech
At the second step o f the § 1983 First Amendment violation analysis, plaintiff must prove that his speech was spoken in his capacity as a private citizen, and not as a public employee. Eng, 552 F.3d at 1071. Where an employee has an official duty to speak, or his speech is the product o f performing the tasks the employee is paid to perform, the speech is spoken in his capacity as a public employee, not a private citizen. Id. The scope and content o f an employee's j o b responsibilities is a question o f fact; however, "the 'ultimate constitutional significance o f the facts found' is a question o f l a w . " Id. (quoting Posey v. Lake Pend Oreille School Dist. No. 84, 546 F.3d 1121, 1129-30 (9th Cir. 2008)). The parties agree that in his role as Parks Program Manager, plaintiff was responsible for overseeing all parks in the County, including C-B Park. P l a i n t i f f admits he monitored GACDC's management o f the state grant funds, and its management o f C - B Park generally, as part o f his j o b duties. Furthermore, p l a i n t i f f admits that the Auditor's Office contacted him for information regarding the alleged mismanagement by GACDC because he held the contracts and all o f the paperwork regarding the two planned improvement projects at C-B Park. Finally, p l a i n t i f f admits that he sent his November 2008 memorandum to Baize as "a course o f [his] j o b duty." The undisputed facts show that p l a i n t i f f s November 2008 memorandum was the product o f performing the tasks he was paid to perform as an employee o f the County. The memorandum is therefore "speech" spoken in his capacity as a public employee, not a private citizen, and is not protected under the Fi rst Amendment. Plaintift's claim therefore fails at the second step o f the f i v e - s t e p s e q u e n t i a l analysis.

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ii. Whether p l a i n t i f f s memorandum was a "substantial o r motivating" factor At the third step o f the § 1983 First A m e n d m e n t violation analysis, p l a i n t i f f must prove that his protected speech was a "substantial or motivating" factor in the adverse action taken against him by the defendant. Eng, 552 F.3d at 1071. Whether p l a i n t i f f s constitutionally protected speech was a motivating factor in defendants' decision to terminate his employment is purely a question o f fact. Id. Here, p l a i n t i f f has failed to show that his memorandum was constitutionally protected speech, therefore the c o u r t n e e d not r e a c h the question o f w h e t h e r defendants' d e c i s i o n t o terminate his employment was motivated in whole or in part by the memorandum.
iii. Whether defendants would have made the same decision to terminate p l a i n t i f f h a d he n o t w r i t t e n the m e m o r a n d u m

Where a p l a i n t i f f has borne his burden o f p r o o f o n the first three Eng elements, and the d e f e n d a n t c a n n o t s h o w t h a t t h e state's l e g i t i m a t e a d m i n i s t r a t i v e i n t e r e s t o u t w e i g h t h e e m p l o y e e ' s First Amendment rights, the defendant may still avoid liability by showing that the employee's p r o t e c t e d s p e e c h w a s n o t a " b u t - f o r " c a u s e o f the a d v e r s e e m p l o y m e n t a c t i o n . E n g , 5 5 2 F . 3 d a t
1072 (citing Mt. Health City School Dist. Bd. o f Ed. v. Doyle, 429 U.S. 274, 287 (1977)). "The

Mt. Healthy but-for causation inquiry is purely a question o f fact." Id. (citing Wagle v. Murray, 550 F.2d 4 0 1 , 4 0 3 (9th Cir. 1977) (per curiam)). Here, p l a i n t i f f has failed to show that his memorandum was constitutionally protected speech, therefore the c o u r t n e e d not r e a c h the q u e s t i o n o f w h e t h e r d e f e n d a n t s w o u l d h a v e reached the same decision to terminate his employment even i f h e had never written his N o v e m b e r 2008 m e m o r a n d u m .

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2. Defendant Jackson County

A municipality may not be held liable under § 1983 on a respondeat superior theory; rather, the constitutional tort must have been committed pursuant to a municipal policy. Crowe v. Cnty. o f San Diego, 608 F.3d 406, 445 (9th Cir. 2010) (citing Monell v. Dept. o f Soc. Servs., 436 U.S. 658, 691 (1978)). To establish municipal liability under § 1983, plaintiff must show: (1) a County employee violated his constitutional rights; (2) the County has a custom or policy; (3) that policy amounts to deliberate indifference to his constitutional rights; and (4) this custom o r policy was the moving force behind the employee's violation o f his constitutional rights. Burke v. Cnty. o f Alameda, 586 F.3d 725, 734 (9th Cir. 2009) (internal citation and quotation marks omitted). Defendants argue p l a i n t i f r s First Amendment-based § 1983 claim against the County is barred by p l a i n t i f f s own admission that the County did not have a policy, practice or custom o f retaliating against employees who exercised their free speech rights. Plaintiff offers no argument in response. In any event, the court has already found that defendant Vial did not violate p l a i n t i f f s First Amendment rights, above. Even i f defendant Vial h a d violated plaintift1s constitutional rights, plaintiff would still need to show the existence o f a County custom or policy to prevail against the County. Plaintiff has failed to prove either a violation o r the existence o f a policy. Therefore, his § 1983 claim against the County fails as a matter o f law.
Conclusion

P l a i n t i f f s speech in his November 2008 memorandum was not made as a private citizen but as a public employee. Accordingly, p l a i n t i f f s speech is not protected under the First Amendment. Plaintiff has failed to prove either a violation o f his constitutional rights or the

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existence o f a County policy endorsing or tolerating such violations. Therefore, defendants' motion for summary j u d g m e n t as to p l a i n t i f f s fourth claim is GRANTED and p l a i n t i f f s First Amendment claim is dismissed as to all defendants.
B.

42 U.S.C. § 1983 - Due Process violation Plaintiff argues that Jackson County did not have a written "at will" policy at the time he

was hired, that he was told by his supervisors he could only be fired "for cause," and therefore the promulgation o f Policy #5-42 in December o f 2000 changed his employment status from termination only "for cause" to termination "at will" without consideration, thereby depriving him o f his property interest in continued public employment in violation o f his due process rights. This claim is brought against Jackson County. 1. Fifth Amendment Claim P l a i n t i f f e x p r e s s l y i n v o k e s t h e F i f t h A m e n d m e n t as t h e s o u r c e o f h i s c o n s t i t u t i o n a l d u e process rights. This claim is without merit. The Due Process Clause o f the Fifth Amendment applies to and restricts only the federal government. Geneva Towers Tenants Org. v. Federated Mortg. Investors, 504 F.2d 483, 487 (9th Cir. 1974) (citing Pub. Utilities Comm'n v. Pollack, 343 U.S. 451, 461 (1952); U.S. v. Davis, 482 F.2d 8 9 3 , 8 9 7 n. 3 (9th Cir. 1973)); see also Plumeau v. Yamhill Cnty. School Dist. No. 4Q, 907 F.Supp. 1423, 1435 (D. Or. 1995) (due process claim b r o u g h t a g a i n s t school d i s t r i c t u n d e r F i f t h a n d F o u r t e e n t h A m e n d m e n t s p r o p e r l y a n a l y z e d o n l y under the Fourteenth Amendment). N o federal actors were involved in any o f the actions on w h i c h p l a i n t i f f s c l a i m s are a s s e r t e d , t h e r e f o r e he c a n n o t a s s e r t a d u e p r o c e s s v i o l a t i o n c l a i m u n d e r the Fifth A m e n d m e n t . II

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2. Fourteenth A m e n d m e n t

The court liberally interprets p l a i n t i f f s complaint as attempting to assert a due process violation under the Fourteenth Amendment. In order to be entitled to the protection o f the F o u r t e e n t h A m e n d m e n t , p l a i n t i f f must d e m o n s t r a t e t h a t d e f e n d a n t s ' a c t i o n o r i n a c t i o n d e p r i v e d him o f a property interest. Cleveland Bd. o f Ed. v. Loudermill, 470 U.S. 5 3 2 , 5 3 8 (1985); Bd. o f Curators o f U n i v . o f Mo. v. Horowitz, 435 U.S. 78, 82 (1978). A government employee has a c o n s t i t u t i o n a l l y p r o t e c t e d p r o p e r t y i n t e r e s t i n c o n t i n u e d e m p l o y m e n t w h e n t h e e m p l o y e e has a legitimate claim o f entitlement to the position. Portman v. Cnty. o f Santa Clara, 995 F .2d 898, 904 (9th Cir. 1993). Under Oregon law, public employee's rights arise solely from statutes and regulations; property interests for public employees cannot arise solely from an implied or express contract o f employment absent some underlying statute or regulation. Brady v. Gebbie, 859 F.2d 1543, 1549 (9th Cir. 1988) (citing Papadopoulos v. Bd. o f Higher Ed., 14 Or. App. 130,
168-69, rev. d e n i e d (1973), cert. d e n i e d 417 U.S. 919 (1974)); Harrington v. City o f Portland,

677 F.Supp. 1491, 1499 (D. Or. 1987). Defendant argues it is irrelevant whether the County had a written "at will" termination policy prior to December 2000, first because the century-old default standard in Oregon is "at will," and second because the "at will" standard was codified by the Oregon legislature in 1953 with the enactment and adoption o f ORS. 204.601. Therefore, without more, the reference to Policy #5-42 as a "new" policy in the County's interoffice memorandum is irrelevant, as is p l a i n t i f f s subjective b e l i e f that he could be fired only "for cause."
In Oregon, county civil service is mandatory for counties with a population over 500,000,

but smaller counties must elect into it. ORS 241.020, 241.006. In counties which have not

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elected to adopt a civil service system under ORS Ch. 241, employment is governed by ORS 2 0 4 . 6 0 I , w h i c h p r o v i d e s t h a t e m p l o y e e s s e r v e at t h e p l e a s u r e at t h e a p p o i n t i n g o f f i c i a l . Papadopoulos, 14 Or. App. at 167-68 (public employees whose employment is governed by ORS 204.601 enjoy no j o b security); Schlichting v. Bergstrom, 13 Or. App. 5 6 2 , 5 5 5 - 5 6 (1973); see Brady, 859 F.2d at 1548-50. A public employee whose position is "at will" has no constitutionally protected property right. Lawson v. Umatilla Cnty., 139 F.3d 6 9 0 , 6 9 2 - 9 3 (1998)
(citing Portman, 995 F.2d at 904); Machunze v. Chemeketa Cmty. ColI., 106 Or. App. 707, 715

(1991); Albertson v. Stewart, No. CIV 04-3097-CO, 2007 WL 128946, at 2007).

* 6 (D. Or. Jan.

16,

J a c k s o n C o u n t y has a p o p u l a t i o n o f l e s s t h a n 5 0 0 , 0 0 0 . 2 D e f e n d a n t s c o n t e n d , and p l a i n t i f f does not dispute, that Jackson County has not adopted a civil service system and is therefore governed by ORS 204.601. Thus by statute, plaintiff was as an at-will employee with no constitutionally protected property interest in continued public employment, unless he can show that the County created such an interest, whether by ordinance, regulation, personnel policy, or other means. See, e.g., Maben v. Klamath Cnty., 54 Or. App. 799, 802-803 (1981), a m e n d e d b y 57 Or. App. 730 (1982) (in county governed by ORS 204.601, summary j u d g m e n t precluded where employee handbook designated plaintiffs' status as "permanent," creating genuine issue o f material fact as to whether provision was intended to be part o f the original employment contract and whether employee could be terminated only for cause). Plaintiff has failed to submit any such evidence, and instead relies solely on the alleged implied-in-fact employment contract as

The court takes judicial notice o f this fact. See h t t p : / / w w w . c o . j a c k s o n . o r . u s / P a g e . a s p ? N a v I D = 1 3 1 (last v i s i t e d N o v e m b e r 1 8 , 2 0 1 0 )
2

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creating his property interest. This is insufficient u n d e r O r e g o n l a w to create a constitutionally protected property right. P l a i n t i f f t h e r e f o r e fails to state a § 1983 claim for d u e process violation u n d e r the Fourteenth A m e n d m e n t .

Conclusion
Therefore, defendants m o t i o n for s u m m a r y j u d g m e n t as to p l a i n t i f f s § 1983 c l a i m is G R A N T E D , and p l a i n t i f f s fourth claim is dismissed.

II. P l a i n t i f f s Second Claim: DRS 659A.203 - Whistleblowing
P l a i n t i f f alleges d e f e n d a n t s v i o l a t e d O r e g o n ' s w h i s t l e b l o w i n g statute, O R S 6 5 9 A . 2 0 3 , by terminating him in retaliation for reporting the m i s m a n a g e m e n t o f state grant funds by G A C D C in his N o v e m b e r 2008 m e m o r a n d u m the C o u n t y Auditor's Office, w i t h o u t first i n f o r m i n g Vial o f the request and allowing Vial the opportunity to r e v i e w the m e m o r a n d u m . U n d e r O r e g o n law, a p u b l i c e m p l o y e r e n g a g e s in u n l a w f u l e m p l o y m e n t p r a c t i c e s b y d i s c o u r a g i n g an e m p l o y e e f r o m c o m p l a i n i n g a b o u t v i o l a t i o n s o f l a w , o r r e q u i r i n g t h e e m p l o y e e to give notice before complaining. I-Iuber v. Or. Dept. o f Ed., 235 Or. App. 230, 240 (2010); O R S 6 5 9 A . 2 0 3 . 3 M o r e o v e r , the e m p l o y e r e n g a g e s in an u n l a w f u l e m p l o y m e n t p r a c t i c e i f i t

3

O R S 6 5 9 A . 2 0 3 p r o v i d e s , in p e r t i n e n t part:

( l ) . . . [I]t is an unlawful e m p l o y m e n t practice for any p u b l i c e m p l o y e r to:

(b) P r o h i b i t a n y e m p l o y e e f r o m d i s c l o s i n g , o r t a k e o r t h r e a t e n t o t a k e d i s c i p l i n a r y a c t i o n a g a i n s t a n e m p l o y e e for t h e d i s c l o s u r e o f a n y i n f o r m a t i o n t h a t t h e e m p l o y e e reasonably believes is evidence of: (A) A v i o l a t i o n o f any federal o r s t a t e l a w , r u l e o r r e g u l a t i o n b y the s t a t e , agency o r political subdivision; ( 8 ) M i s m a n a g e m e n t , gross w a s t e o f funds o r a b u s e o f a u t h o r i t y o r substantial and specific d a n g e r to public health and safety resulting from action o f t h e state, a g e n c y o r p o l i t i c a l s u b d i v i s i o n ; . . .

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characterizes the employee's resistance to such discouragement or notice requirement as "insubordination" and subsequently disciplines the employee for that "insubordination." 1d. H o w e v e r , a p u b l i c e m p l o y e r may l a w f u l l y r e q u i r e t h a t e m p l o y e e s i n f o r m t h e i r s u p e r v i s o r a b o u t official requests for information. ORS 6 5 9 A . 2 0 6 ( l ) . Courts in this District have held that to prevail in a whistleblowing claim, p l a i n t i f f must show: ( l ) he engaged in protected activity; (2) he suffered an adverse employment decision; and (3) a causal link exists between the activity and the employment decision, that is, he suffered the adverse employment decision because he engaged in the protected activity. See Clarke v. Multnomah Cnty., Civ. No. 06-229-HU, 2007 WL 915175, at

* 14 (D. Or. Mar. 2 3 , 2 0 0 7 ) , a/i'd, 303 Fed. Appx. 512 (9th Cir. 2008).

Defendants argue that p l a i n t i f f s claim fails because: (1) the memorandum does not contain any statement o f wrongdoing within the meaning o f O R S 659A.203, (2) the memorandum is not a "disclosure" under ORS 659A.203; and (3) p l a i n t i f f cannot show a causal l i n k b e t w e e n h i s N o v e m b e r 2008 m e m o r a n d u m a n d h i s t e r m i n a t i o n .

A. Plaintiff's memorandum does not constitute "protected activity" under ORS 659A.203
To prevail in his claim under ORS 659A.203, p l a i n t i f f must first show he was engaged in activity protected by the statute. To satisfY this element, p l a i n t i f f relies exclusively o n his November 2008 memorandum. The court finds p l a i n t i f f s memorandum is not "protected activity" w i t h i n t h e m e a n i n g o f O R S 6 5 9 A . 2 0 3 f o r t h e f o l l o w i n g r e a s o n s .

(c) Require any employee to give notice prior to making any disclosure or engaging in any discussion described in this section, except as allowed in ORS 659A.206(1); o r (d) Discourage, restrain, dissuade, coerce, prevent, or otherwise interfere with disclosure o r discussions described in this section.

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1. P l a i n t i f f s memorandum did not report "mismanagement"
Under O R S 6 5 9 A . 2 0 3 , a claim alleging "mismanagement" m u s t involve m o r e than mere routine complaints about a public employer's policies; rather, such a claim must relate to "serious agency misconduct having the effect o f actually or potentially undermining the agency's ability to fulfill its public mission." Bjurstrom v. Oregon Lottery, 120 P.3d 1235, 1241 (2005). P l a i n t i f f s allegations o f mismanagement are limited to the manner in which GACDC used two state grants obtained by the County at GACDC's request to fund two improvement projects for C-B Park. There is no allegation that defendants colluded with, approved or, or encouraged the manner in which GACDC managed the funds. Neither party argues that GACDC is an agent o f the County and therefore its actions in allegedly mismanaging the funds at issue are attributable to the County. To the extent that GACDC was an agent o f the County by virtue o f the 2004 operating agreement, whereby the County contracted with GACDC for the management and operation o f C-B Park, there is no allegation that the County has a pattern o r practice o f negligently entrusting state grant funds to third-party agents contracted to manage and operate County parks. Rather, the facts s h o w that defendants imposed conditions on GACDC's receipt o f the state grant funds, that defendants continued to monitor the manner in which GACDC managed these funds after distributing them to GACDC, and that defendants promptly requested an audit upon learning that the funds were being mismanaged. On these facts, the court agrees p l a i n t i f f ' s m e m o r a n d u m d i d n o t r e p o r t w r o n g d o i n g w i t h i n the m e a n i n g o f O R S 6 5 9 A . 2 0 3 .

2. P l a i n t i f f s memorandum is not a "disclosure"
A "disclosure" under the whistleblowing statute is "a report o f wrongdoing" and includes a report o f wrongdoing within an agency or department. Shultz v. Multnomah Cnty., No. 08-CV-

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886-BR, 2009 WL 1476689, at

* 13 (D. Or. May 2 7 , 2 0 0 9 ) (quoting Bjurstrom,

120 P . 3 d a t

1239); Clarke, 2007 WL 915175, at

* 14; see O A R 839-010-0010(4).

The District o f Oregon has

found that "the disclosure must pertain to the underlying conduct in order to be protected activity rather than to the asserted fact o f its unlawfulness or impropriety." Shultz, 2009 WL 1476689, at

* 14 (citing Clarke, 2007 WL 915175, at *15).

In p l a i n E n g l i s h , t h e d i s c l o s u r e m u s t r e v e a l

previously unknown conduct in order to be protected activity; it is insufficient to merely identifY or label conduct which is known to have occurred as either unlawful or improper. In the absence o f any Oregon case law identifYing to whom the disclosure must be made, the District o f Oregon has determined that "a disclosure is protected only i f it is made to a person who was previously unaware o f the information, meaning someone in a supervisory position, other than the wrongdoer himself." Shultz, 2009 WL 1476689, at federal Whistleblower Act o f 1989).

* 13; (applying the standards governing the

I t is undisputed that p l a i n t i f f disclosed and discussed his concerns regarding GACDC to
his supervisors, Domis and Vial, in the spring and summer o f 2008. I t appears that neither Domis nor Vial knew about GACDC's alleged misconduct prior to p l a i n t i f f bringing his concerns to t h e m , t h u s , p l a i n t i f f d i s c l o s e d G A C D C ' s m i s c o n d u c t w i t h i n t h e m e a n i n g o f O R S 6 5 9 A . 2 0 3 when he told them about it. However, the November 2008 memorandum is not a disclosure for two reasons. First, the memorandum did not contain any n e w information; it merely reiterated the information p l a i n t i f f had already disclosed to Domis and Vial in the spring and summer o f 2008. Second, there is no indication that Baize, the auditor to whom p l a i n t i f f submitted his memorandum, is a person in a "supervisory position." Third, even i f Baize is deemed a person in a "supervisory position," at the time she contacted p l a i n t i f f for information, she already knew

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about GACDC's misconduct, because that had been revealed to the Auditor's Office by Domis and Vial when they placed the audit request. Thus, while p l a i n t i f f s memorandum may have provided an additional level o f detail, it did not "disclose" any conduct that the Auditor's Office was unaware of.
Conclusion

Plaintiff has failed to show both that his memorandum reported "wrongdoing," and that his memorandum is a "disclosure," within the meaning o f O R S 659A.203. Therefore, his m e m o r a n d u m w a s n o t p r o t e c t e d a c t i v i t y a n d m a y n o t s u p p o r t a c l a i m for r e t a l i a t i o n i n v i o l a t i o n o f O R S 659A.203.
B. W h e t h e r p l a i n t i f f c a n s h o w t h a t a " c a u s a l c o n n e c t i o n " e x i s t s b e t w e e n t h e m e m o r a n d u m a n d his t e r m i n a t i o n

Plaintiff has failed to prove that his memorandum constitutes protected activity within the meaning o f ORS 659A.203, therefore any causal connection that exists between it an his termination lacks legal significance. l i o w e v e r , to the extent p l a i n t i f f argues that Vial's statement that he was "going to have to make some changes" i f he did not see improvements in p l a i n t i f f s performance supports the inference that he was terminated "ftJr the information he disclosed in his memorandum, the court notes it cannot agree. The undisputed facts show that when p l a i n t i f f informed Vial o f GACDC's alleged mismanagement, Vial did not attempt to discourage plaintiff from pursuing the matter. To the contrary, Vial took action. Vial requested that the County Auditor's Office conduct an audit, and when p l a i n t i f f opposed the audit, Vial allayed p l a i n t i f f s fears and continued to pursue the matter. As p l a i n t i f f s supervisor, Vial knew that p l a i n t i f f was responsible for monitoring GACDC's Page 18 - AMENDED O R D E R

management o f C - B Park, and that p l a i n t i f f held all o f the contracts and other documents related GACDC and C-B Park. Moreover, Vial knew it was p l a i n t i f f who discovered the alleged mismanagement. By necessity, Vial k n e w that the Auditor's Office would contact p l a i n t i f f regarding the audit. There is no indication that Vial attempted to impose conditions o n whether or when p l a i n t i f f could speak to the Auditor's Office, or in any other way attempted to discourage p l a i n t i f r ' s concerns. On these facts, Vial's statement can only reasonably be understood as an admonition that p l a i n t i f f should notify him o f official requests for information and allow him the opportunity to assist in crafting the response, a requirement which Vial could lawfully impose. Thus to the extent Vial's statement supports the inference that the decision to terminate p l a i n t i f f was motivated in whole or in part by p l a i n t i f f s memorandum, it does not support the inference o f u n l a w f u l r e t a l i a t o r y a n i m u s , b u t r a t h e r s u p p o r t s d e f e n d a n t s ' a r g u m e n t t h a t p l a i n t i f f was terminated for lawful reasons, that is, his practice o f disregarding County policy.

Conclusion
P l a i n t i f f s N o v e m b e r 2008 memorandum is neither a report o f "wrongdoing" nor a "disclosure" within the meaning o f ORS 659A.203, and is thus not protected activity entitled to the protections o f the statute. Therefore, defendants' motion for summary j u d g m e n t as to p l a i n t i f f s whistleblowing claim is GRANTED, and p l a i n t i f f s second claim is dismissed.

I l l . Plaintiff's Third Claim: Wrongful discharge
P l a i n t i f I claims he was wrongfully terminated for reporting mismanagement o f public funds by a public agency. This claim can only be brought against defendant Jackson County as p l a i n t i f f s employer. Schram v. Albertson's Inc., 146 Or. App. 4 1 5 , 4 2 6 (1997). To allege a

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claim o f wrongful discharge "there must be a discharge, and that discharge must be 'wrongful.'" McGanty v. Staudenraus, 321 Or. 532, 551 (1995) (internal citation omitted). Because p l a i n t i f f s termination is undisputed, analysis o f that element is unnecessary. Under Oregon common law, an employer may discharge an employee at any time, for any reason, unless doing so violates a contractual, statutory, or constitutional requirement. Patton v. J.C. Penney Co., 301 Or. 117, 120 (1986). However, Oregon recognizes the common-law tort o f wrongful discharge as a narrow exception to the at-will employment doctrine. See Sheets v. Knight, 308 Or. 220, 230-31 (1989). Oregon courts have recognized two circumstances where the exception is applicable: (1) an employee is discharged for exercising a job-related right that reflects an important public policy, and (2) an employee is discharged for fulfilling a public duty or fulfilling a societal obligation. Babick v. Oregon Arena Corp., 333 Or. 4 0 1 , 4 0 7 (2002) (internal citations omitted). Examples o f the first category include discharge for resisting sexual harassment b y a supervisor, Holien v. Sears, Roebuck, & Co., 298 Or. 76 (1984), and filing a workers' compensation claim, Brown v. Transcon Lines, 284 Or. 597 (1978). Examples o f the second category include discharge for serving on j u r y duty, Nees v. Hocks, 272 Or. 210 (1975), reporting patient abuse at a nursing home, McQuary v. Bel Air Convalescent Home, Inc., 69 Or. App. 107 (1984), and for refusing to sign a false and potentially defamatory statement about a coworker, Delaney v. Taco Time Int'l, 297 Or. 1 0 ( 1 9 8 4 ) . P l a i n t i f f appears to rely on the public duty exception, arguing that he was terminated in retaliation for protected speech about a matter o f public concern--the mismanagement o f public funds by a public agency. However, beyond pointing to his November 2008 memorandum and Oregon's whistleblowing statute ORS 659A.203. plaintiff fails to assert any specifics as to what

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duty he was fulfilling o r w h i c h statutes o r regulations establish his duty. W h e t h e r an "important public duty exists" is a question o f law. Huber, 235 O r App. at 242. "This court c a n n o t create a public duty, but m u s t find one in constitutional o r statutory provisions o r case law." L a m s o n v. C r a t e r Lake Motors, Inc., 346 Or. 628, 637 (2009) (en banc); Love v. Polk Cnty. Fire Dist., 2 0 9 Or. A p p . 4 7 4 , 4 8 3 ( 2 0 0 6 ) ( i n t e r n a l c i t a t i o n o m i t t e d ) . M o r e o v e r , " [ t ] h e p r o v i s i o n s r e l i e d o n c a n n o t m e r e l y e x p r e s s a general p u b l i c policy; rather, t h e y m u s t e n c o u r a g e specific acts o r 'otherwise demonstrat[e] t h a t such acts enjoy h i g h social value.'" Love, 2 0 9 Or. App. at 483. "[T]he class o f c o n d u c t that is d e e m e d to 'enjoy h i g h social value' is very narrowly construed." Id. at 486-87. Furthermore, i n whistleblowing situations where a p l a i n t i f f is a public employee, p l a i n t i f f m u s t s h o w that the complaints were objectively reasonable. Id. at 487-92. D e f e n d a n t s a r g u e p l a i n t i f f s c l a i m fails b e c a u s e (1) h e r e l i e s u p o n O r e g o n ' s w h i s t l e b l o w i n g statute to establish a public duty exception, however, his N o v e m b e r 2008 report is not a protected disclosure u n d e r Oregon's w h i s t l e b l o w i n g statute; (2) defendants have legitimate, non-retaliatory reasons to terminate plaintiff, w h i c h p l a i n t i f f has n o t s h o w n to b e pretextual; and (3) plaintiff1s wrongful discharge claim is precluded by the existence o f a statutory remedy under 42 U.S.C. 1983. P l a i n t i f f relies e x c l u s i v e l y o n O r e g o n ' s w h i s t l e b l o w i n g s t a t u t e as c r e a t i n g his a l l e g e d d u t y t o r e p o r t t h e m i s m a n a g e m e n t o f p u b l i c f u n d s b y a p u b l i c agency. W h e r e a s t a t u t e a d e q u a t e l y provides a remedy to the alleged misconduct, an employee does not have a n additional c l a i m for wrongful discharge. Walsh v. C o n s o l i d a t e d Freightways, Inc., 563 P . 2 d 1205 (Or. 1977). H o w e v e r , O r e g o n c o u r t s h a v e e x p l i c i t l y found t h a t t h e l e g i s l a t u r e did n o t i n t e n d O r e g o n ' s w h i s t l e b l o w i n g statute to supersede c o m m o n - l a w claims. Olsen v. Deschutes Cnty., 2 0 4 Or.

Page 21 - A M E N D E D O R D E R

App. 7, 14, rev. denied, 341 Or. 80 (2006). Nevertheless, p l a i n t i f f s wrongful discharge claim must fail. As explained above, p l a i n t i f f s November 2008 memorandum is not a protected disclosure under Oregon's whistleblowing statute, nor is it speech protected by the First Amendment. Plaintiff has failed to show any causal link between his November 2008 memorandum and termination o f his employment. The only reasonable inference that can be drawn from the facts as shown is that Vial objected to plaintiff not keeping him informed o f the official request for information plaintiff received from the Auditor's Office, and allowing him the opportunity to review and comment on the information plaintiff provided. On these facts, plaintiff has not shown that any public duty or societal obligation to the at will doctrine applies t o support his wrongful discharge claim. Thus the court need not address defendants' remaining arguments. Therefore, defendants' motion for summary j u d g m e n t as to p l a i n t i f f s wrongful discharge claim is GRANTED and p l a i n t i f f s third claim is dismissed.

IV. P l a i n t i f f s First Claim: Breach o f Contract
Plaintiff alleges defendant Jackson County breached an implied-in-fact contract governing his employment by terminating him without cause. The County counters that (1) plaintiff was an at-will employee, and (2) even i f p l a i n t i f f could only be terminated for-cause, the County had cause to terminate his employment.

A. Whether p l a i n t i f f w a s an "at-will" employee
Plaintiff concedes that the default standard in Oregon for terminating a public employee is "at will." E.g., Brunick v. Clatsop Cnty., 204 Or. App. 326, 333 (2006) (citing ORS 204.601). However, plaintiff argues his "at-will" employment status was modified by oral promise or agreement with the County, as evidenced by five asserted facts: (1) the County did not have an

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at-will employment policy when he was hired; (2) he was not told he was an at-will employee when he was hired; (3) he was told he would only be terminated for cause when he was hired; (4) these representations were made by agents o f the County with the authority to create a binding contract; and (5) although he signed a written acknowledgment o f the County's at-will policy, he received no consideration for his changed employment status, therefore it is unenforceable. Whether an enforceable contract exists is a question o f l a w . Pereira v. Thompson, 230 Or. App. 640, 664 (2009) (citing Dalton v. Robert Jahn Corp., 209 Or. App. 120, 131 (2006)), rev. denied, 342 Or. 416 (2007). In Oregon, the courts determine whether a contract exists using a standard o f objective intent, measured by whether a reasonable person would construe a promise from the words and acts o f the other. Wooton v. Viking Distrib. Co., Inc., 136 Or. App. 5 6 , 5 9 (1995) (citing Real Estate Loan Fund v. Hevner, 76 Or. App. 349, 354 (1985)). The parties have not provided any Oregon case deciding a claim for breach o f employment contract in a p u b l i c e m p l o y m e n t c o n t e x t , a n d t h e c o u r t has n o t f o u n d a n y such a u t h o r i t y . B e c a u s e O r e g o n courts have applied the principles o f private employment case law to cases involving public employment, see, e.g., Maben, 54 Or. App. at 803 (applying the principles o f a private employment case, Y a r t z o f f v . Democrat-Herald Publishing Co., 281 Or. 651 (1978), to a public employment case), the court therefore the court looks to Oregon cases deciding breach o f e m p l o y m e n t c o n t r a c t c l a i m s in private employment. The County argues plaintiff is charged with constructive knowledge o f his statutory "atwill" employment status. 4 The County also disputes whether plaintiff was told he could only be

Citing B o l d n e r v. Columbia County, 123 Or. App. 48, 52-53 (1993); Baker v. Deschutes County, 10 Or. App. 236, 240 (1972). These cases do not involve employment contract claims, and the court does not find them to be applicable or persuasive authority here.
4

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terminated "for cause," pointing out that neither p l a i n t i f f nor either o f his supervisors, Mr. Lloyd and Mr. Ledward, could recall the substance o f the alleged conversations. Even i f h e w a s told he could only be terminated for cause, the County argues that "casual or unauthorized comments" by p l a i n t i f f s supervisors are insufficient to create a reasonable expectation that he could only be t e r m i n a t e d "for cause." The C o u n t y r a i s e s several a d d i t i o n a l a r g u m e n t s , h o w e v e r , the c o u r t does n o t e x a m i n e them here. Oregon case l a w is clear that oral promises may support a claim for breach o f contract. McPhail v. Milwaukie Lumber, 165 Or. App. 596, 600-01 (2000) (a written agreement stating employment is "at will" does not eliminate a permanent employment agreement established by oral promises and conduct o f the parties); Crampton v. Harmon, 20 Or. App. 676, 685-86 (1975) ("an employee told he or she will only be discharged 'for cause' is entitled to expect that employment is permanent unless or until the employer can prove 'cause' for termination"); Koeping v. Tri-County Metro. Transp. Dist. o f Oregon, 120 F.3d 998, 1002 (9th Cir. 1997). 5 The existence o f an oral contract and its terms are issues o f fact not appropriately determined at the summary j u d g m e n t stage. Federal Rule o f Civil Procedure ("FRCP") 56(c); Bahn v. N M E Hosp's, Inc., 929 F.2d 1 4 0 4 , 1 4 0 9 (9th Cir. 1991) (a party is entitled to summary j u d g m e n t only i f the record shows there is no genuine issue as to any material fact). The disputed question o f fact regarding whether p l a i n t i f f was told he could only be terminated for cause precludes summary j u d g m e n t on whether an implied-in-fact contract exists and its terms.

5 Defendant cites B u t l e r v. P o r t l a n d General Electric Co., 748 F.Supp. 783, 792 (D. Or. 1990), a . f f d s u b n o m Flynn v. Portland General Electric Co., 958 F.2d 377 (9th Cir. 1992), for the p r o p o s i t i o n t h a t a s u p e r v i s o r ' s c o m m e n t s a r e i n s u f f i c i e n t . H o w e v e r , B u t l e r is i n a p p o s i t e ; t h e r e , the plaintiffs alleged claims o f age discrimination under the Age Discrimination in Employment Act o f 1967 (ADEA), 29 U . S . c . §§ 621, et seq., not for breach o f contract.

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B. T h e C o u n t y had cause to terminate p l a i n t i f f

The County argues that even i f p l a i n t i f f was not an "at will" employee, it is entitled to summary j u d g m e n t because p l a i n t i f f s repeated violations o f the County's vehicle use policy and theft o f firewood from C-B Park constitutes cause sufficient to support his termination. An employment contract providing that an employee will only be terminated "for cause" is customarily interpreted to mean that the employer cannot arbitrarily discharge the employee. Simpson v. Western Graphics CorP.. ., 53 Or. App. 205, 208-09 (1981), afrd, 293 Or. 96 (1982). To s a t i s f y t h i s s t a n d a r d , t h e c o u r t n e e d o n l y f i n d t h a t t h e r e w a s s u b s t a n t i a l e v i d e n c e t o s u p p o r t the employer's decision and that the employer believed that evidence and acted in good faith in discharging the worker. Id. at 211. Here, defendant has shown that in N o v e m b e r 2006 and again in July 2008, p l a i n t i f f received written warnings for failing to comply with the County's vehicle use policy, and defendant determined p l a i n t i f f had committed a third violation o f the policy in December 2008. P l a i n t i f f had received thorough training on the policy, and had voiced his opposition to the policy on several occasions. P l a i n t i f f s supervisors viewed his conduct as an ongoing practice o f disregarding County policies, and had twice warned p l a i n t i f f that his failure to comply with County policy could result in further disciplinary action up to and including termination. F u r t h e r m o r e , t h e C o u n t y found t h a t p l a i n t i f f h a d v i o l a t e d a s e p a r a t e p o l i c y b y t a k i n g f i r e w o o d from C-B Park without payment or permission, and that this conduct compromised p l a i n t i f f s ability to discharge his duties as Parks Program Manager by damaging the already acrimonious r e l a t i o n s h i p b e t w e e n p l a i n t i f f and G A C D C . In summary, the County believed that p l a i n t i f f displayed an ongoing disregard for both

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County policies and his responsibilities as a manager to be a role model for his employees, and persisted i n this conduct despite the County's best efforts to identify the wrongful behavior and provide corrective counseling. On these facts, the court finds substantial evidence to support the County's decision to terminate p l a i n t i f f s employment, and that the County believed that evidence a n d a c t e d i n g o o d faith i n d i s c h a r g i n g p l a i n t i f f . Conclusion A genuine issue o f m a t e r i a l fact precludes summary j u d g m e n t on whether p l a i n t i f f was an "at will" employee. However, assLiming without deciding that p l a i n t i f f could only b e terminated for cause, the County has shown that its decision to terminate p l a i n t i f f s employment is supported b y s u b s t a n t i a l e v i d e n c e , t h a t it j u s t i f i a b l y b e l i e v e d i n t h e a c c u r a c y o f t h a t e v i d e n c e , a n d t h a t i t a c t e d i n g o o d f a i t h i n d i s c h a r g i n g p l a i n t i f f . T h e r e f o r e , d e f e n d a n t s ' m o t i o n for s u m m a r y j u d g m e n t as to p l a i n t i f f s breach o f contract c:laim is GRANTED, and p l a i n t i f f s first claim is dismissed. CONCLUSION F o r the reasons stated above, defendants' motion for summary j u d g m e n t is G R A N T E D in its entirety.

DATED this -----,~----:..-e-- day o f Novprl"l1'Y'r, 2010

M

. CLARKE U n i t e d States M a g i s t r a t e J u d g e

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