Howard v. City of Coos Bay et al

Filing 59

ORDER: Plaintiff's claims for whistleblower retaliation under Or. Rev. Stat. § 659A.203(1), wrongful discharge, and violations of her due process rights under 42 U.S.C. § 1983 each fail as a matter of law. Therefore, defendants& #039; motion for summary judgment 25 is GRANTED as to those claims and DENIED as to the plaintiff's First Amendment retaliation claim. Plaintiff's motion for partial summary judgment 29 is DENIED. Signed on 03/09/2011 by Chief Judge Ann L. Aiken. (lg)

Howard v. City of Coos Bay et al

Doc. 59

!"1AR 100'3:08lJSDC·C'F.:E

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

JANELL HOWp.RD, Pla vs. CITY OF COOS BAY, an Oregon Mcnicipal Corporat ; and CEARLES E. FREEMAN, De
s.

iff,

C

1 No. 09-6257-AA

OPINION AND ORDER

Beth Cre Michael E. Rose Creighton & Rose 500 Yamhill Plaza Building 815 S.W. Se Avenue Portland, Oregon 97204 Attorne for Plaintiff Mark rman Karen O'Kas Ho , Hart & Wagner 1000 S.W. Broadway, 20th Fl. Portl ,Oregon 97205 Attorneys for Defendants 1 - OPINION AND ORDER

Dockets.Justia.com

AIKEN, Chief Judge: Plaintiff Janell Howard filed suit against the C ("City") and her whistleblower retal wrongful discharge aga Amendment and due City and Freeman. Fed. R. Civ.
t

y of Coos

r supervisor, Charles Freeman, alleging Or. Rev. Stat. § 65 .203(1) and

City, and vio

of her First

ss r

sunder 42 U.S.C. § 1983 against the pursuant to Plaintiff also ss claims.

Defendants move for. summary j

P. 56 on all of plaintiff's cIa judgment on her due

moves for partial summa The court heard 2011. For the reasons
mot~on

argument on the motions on February 24, below, plaintiff's motion is DENIED; a , the due process and defendants'

defendants' claims,

on the wrongful discharge

and the whist rst

claim is GRANTED; retaliat
I. BACKGROUND

motion on the

is DENIED.

From 1998 until S its Finance Director. controlled financial planning,

ember 2008, the In this capacity s al activities of

y

loyed plaintiff as

directed, managed, the City,
1

budgeting,

accounting

record-keeping, also advised

and
C Y

monitoring revenues and expenditures. Council of the an at-will empl ty's financial condit

The Finance Director is

who is supervised by the City Manager.

The City contracted with Robert Wall and his CPA firm Wall & Wall to per City's 2005-2006 audit. Plaintiff and Wall had

2 - OPINION AND ORDER

worked together on City audits in the past.

Problems arose during

the audit when Wall submitted a supplemental bill. Wall sent an email to plaintiff and Joyce Jansen on October 8, 2006, with a supplemental bill for $938. At that time, Jansen was

serving as Interim City Manager and was plaintiff's supervisor. Wall's email explained that the bill was for audit revisions that were necessary after plaintiff sent changes to Wall that affected the audit. The following day, plaintiff replied and contested that

the changes caused enough extra work to justify a supplemental bill and stated that she would recommend that the City not pay it. Plaintiff told Wall she felt he was taking advantage of Jansen's inexperience and that charging extra for work that fell within the contract was unethical and reportable to the Oregon Board of

Accountancy. On October 11, 2006, Jansen sent plaintiff a memo that

expressed concern regarding the tone of plaintiff's response to Wall and indicated that some City Council members were concerned as well. At least one City Council member (and later Mayor), Jeff

McKeown,

expressed displeasure over plaintiff's email to Wall. such

McKeown told plaintiff that she would have been fired for conduct 2010) . in the private Another City sector. Council Wall member Dep. 120:12-15 that

(July 29, was

noticed

McKeown

unhappy with plaintiff's reaction to Wall's bill. 11:3 (Apr. 29, 2010).

Daily Dep. 10:3

3 - OPINION AND ORDER

C

Y Council eventually approved the $938

ce, ential

anotjer for $11,500 submitted by Wall to research the
e

cal

ems t 25, 2006,

continuing the audit in light of plaintiff's him. Plaintiff wrote a memo to her
1

al

on

her version of the events with Wall y

and Wall's and

r

anat ement y

of why she felt that the City should not Ils.
1

wrote a similar letter to Jansen De r 19, of 2006, adding that she

the

on y's

disagreed with citizen," she Creighton Decl. In t t

matter and that "as a
If

Wall was a "gross waste of funds.

(First), Ex. 14, p. 3. 2006, Wall not sted that plaintiff sign a

November

document stating that s of Accountancy_

rt him to the Oregon Board

Plaintiff refused. lly in Janua

The City never offic

a
2007

iff for her role

in the audit dispute; however,

a

iff found a on a copier.

copy of a draft reprimand letter from Jansen 1 On June 17, 2007, Char and plaintiff's supervisor. s Freeman

the new City Manager er iff ty came led a

On June 25, 2007, a issues,

to agreement with Wall on the bill complaint against Wall with the weeks after sending the complaint, i asked her to withdraw the compla 16, 2007, Freeman wrote a letter of su

of Accountancy _ A few

a
P

iff noti

ed Freeman, who On July
f

intiff refused. to

a

i

4

OPINION AND ORDER

an

investigation

that

she

exceeded

her

authority

as

Finance

Director and violated a personnel directive. plaintiff revealed in writing on that she July 24, the 2007, that

Freeman notified the The investigation letter was

violated

directive.

eventually removed from plaintiff's file.

After the suspension,

plaintiff felt that Freeman was unnecessarily critical of her. On August 24, Mart with unpaid she had 2008, plaintiff was stopped from leaving Walfodd items totaling for $12.57. the According to

plaintiff,

intended to pay

items. 1

Plaintiff The

called Freeman that evening to tell him what had happened.

next day, August 25, 2008, Freeman suspended plaintiff pending an investigation that he initiated through the Oregon State Police, and on August 26, 2008, Freeman issued a press release regarding The next day, an article appeared in the "Coos Bay City Official Arrested for

plaintiff's suspension. local paper entitled,

Shoplifting."

Creighton Decl.

(First), Ex. 29.

The Oregon State Police concluded that there was insufficient evidence that plaintiff intended to take items without paying for

1Plaintiff recounted her version of the Wal-Mart events in her declaration. While the clerk was scanning her items, plaintiff realized that she needed another gallon of milk. She told the clerk to ring her up for the milk and that she would retrieve it after checking out. After plaintiff had picked up the milk, her children asked for some chicken and french fries from the deli, and plaintiff obliged. This apparently side tracked plaintiff, who then headed toward the door with the unpaid deli items. After being stopped, she apologized and offered to pay for the items. Howard Decl. (Second), <JI2 .. 5 - OPINION AND ORDER

them. learned

During of

its

investigation that

the

Oregon had

State

Police

also on

allegations

plaintiff

switched

prices

products at a local Albertsons. did not press plaintiff.

The Coos County District Attorney against

charges based on any of the allegations

On September 12, 2008, Freeman gave plaintiff notice that he would hold a pre-disciplinary hearing on September 15, discuss the Wal-Mart and Albertsons incidents. meeting, 2008, to

The day after the Thereafter,

Freeman terminated plaintiff's employment.

the local paper published numerous articles about her termination and the associated investigation. On September 14, 2009, plaintiff filed her complaint in this court. speech She claims that the City and Freeman violated her free and due process also rights claims under that the First and Fourteenth Oregon's

Amendments.

She

the

City

violated

whistleblowing statute and is liable for wrongful discharge.
II. STANDARD

Summary

judgment is

appropriate "if the movant

shows that

there is no genuine dispute as to any material fact and the movant is entitled to 56(a). judgment as a matter of law." Fed. R. Civ.P.

The materiality of a fact is determined by the substantive T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 630 (9th Cir. 1987). the The authenticity of a is such that a

law on the issue. Ass'n, dispute

809 F.2d 626, is

determined by whether

evidence

6 - OPINION AND ORDER

reas

e jury could return a verdict for the

party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). moving party has
a

of establishing ct.

sence of 477 f a

nuine issue of material If

Celotex Corp. v. Catrett,

U.S. 317, 323 (1986).

moving party shows the absence ct, s nonmoving party must go show a genuine issue

issue of material and identify trial .. at 324. rules
j

of construction apply to evaluating s (1) all reas s s as to the existence of d be resolved against to be drawn from

motions:

genuine issues of material fact moving under nonmoving party; and (2) all

rences

facts must be viewed

light most favorable to

T.W. Elec., 809 F.2d at 6JO.
III. DISCUSSION

A. First Amendment Retaliation Plaintif the City and must show she spoke as a (3) her the adverse (9th Cir. 2009). bri s a First
F~endment

retal on

ion claim aga

t

rles Freeman. (1)

To s

r claim, plaintiff (2)

she spoke on a matter of public concern; citizen and not as a

lic employee; and

was a substantial or motivating factor in action. Eng v. Cooley, 522 F.3d 1062, 1070 on two communications: City Council

iff bases her cIa

(1) her December 19, 2006, letter to Jansen

7 - OPINION AND ORDER

and

(2)

her

June

25,

2007,

complaint

to

the

Oregon

Board

of

Accountancy. 1. Matter of Public Concern Plaintiff asserts two potential matters of public concern in this case: the alleged gross waste of funds by the City and the Although a close case, the

alleged unethical behavior by Wall.

court finds as a matter of law that plaintiff spoke on a matter of public concern when she complained to the Oregon Board of

Accountancy. "Speech involves a matter of public concern when it can fairly be considered to relate to 'any matter of political, social, or

other concern to the community.'" Johnson v. Multnomah County, 48 F.3d 420, 422 138, 146 (9th Cir. 1995) (quoting Connick v. Myers, 461 u.S. wastefulness, entities and are

(1983)).

"[M] isuse of public funds,

inefficiency in managing and operating government matters of inherent public concern." Id. at 425.

However, "speech

that deals with 'individual personnel disputes and grievances' and that would be of 'no relevance to the public's evaluation of the performance of governmental agencies' is generally not of 'public concern.'" 2003) Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. (9th

(quoting McKinley v. City of Eloy, 705 F.2d 1110, 1114

Cir.1983)). To make this determination, courts look at the entire record, including the content, form, and context of a given statement.

8 - OPINION AND ORDER

Johnson,

48

F.3d at 422

(citing Connick,

461 U.S.

at 147-48). ic 109 ect of or ss s not 48

While the Ninth Circuit favors a liberal construction of concern requirement, Roe v. City & County of San Francisco,

F.3d 578, 586 (9th Cir. 1997), "[iln a close case, when the matter of a statement is only marginally related to it was made because of a st or to co-workers rather than to the court to conclude that the statement issues

public concern, other private may lead

substantially F.3d at 425. concern is a Whe
r

a matter of public concern."

subject of speech is a matter of public Eng, 522 F.3d at 1070. ic her Plaintiff ss waste of

stion of law.

Plaintiff accus

Ci ty of wasting

December 19, 2006 letter to Jansen and the City Council. stated, "[Wall's funds. would I am be , conce as lemental invoicel seems to

a

and I think that the citizens of Coos Bay well.
/I

Sherman

Decl.,

Ex.

8,

p.

3.

General

matters of public concern include Johnson, 48 F.3d at 425.

a
However,

s about a fendants

misuse of funds. emphasize

k of plaintiff's December 19

tter recited icized Wall's letter is

plaintiff's version of the dispute with Wall handling of t t. When viewed in context,

fairly characterized as a personal workplace a matter

evance and not as

is critical to the public's decision-making process.

9 - OPINION AND ORDER

See

Sherman

Decl.,

Ex.

8,

p.

2-4. 2

That

plaintiff complained

internally to Jansen and the City Council also indicates a lack of public relevance. Thus, See Johnson, 48 F.3d at 425.

plaintiff's passing reference in the letter to poor

decision-making by the City does not elevate her workplace dispute over Wall's billing into a matter of public concern. City of San Bernadino, fact that speech 572 F.3d 703, passing 711 Desrochers v. ("[T]he

(9th Cir. 2009) to

contains

references

[government

functions] finding omitted) of

incidental to the message conveyed weighs against a public concern.") (internal I quotations and citation

Therefore,

agree with defendants

that plaintiff's

single referehce to a "gross waste of funds" does not alter the letter's character as a private workplace dispute and only

"marginally related" to a matter of public concern.

2Plaintiff began her approximately two page December 19 letter by explaining that she was "concerned that ... councilors have ... received misinformation from Rob Wall" and that she was "taking this opportunity to clarify [the audit issues]." Plaintiff first described the events surrounding Wall's invoice and her response, including her belief that it was her job to question City expenditures. Next, plaintiff described the process of Wall's and the City's financial settlement on the audit and why she disagreed with the settlement. She disputed Wall's characterization of the audit process and his claims on the number of changes that plaintiff submitted. Plaintiff also expressed disapproval that Wall and the City would ask her to sign a statement that she would not report Wall to the Oregon Board of Accountancy. Finally, she stated concern over current problems with the audit, namely that Wall had not completed his work but was continuing to charge the City for professional services. Sherman Decl., Ex. 8, p. 2-4. 10- OPINION AND ORDER

However,

pIa

iff's

to

the

Oregon

Board

of In

Accountancy does not resemb her complaint, plaintiff stat "disregard for our profession not reporting the

sonal wor was the "[ reI s

grievance.

about Wall's public" and felt that ic accounting on and trusts the she believed

incident would

profession and the general public CPA." that Sherman Decl., Ex. 10, p. 4. Wall violated the Oregon Board

of

,s

of

Professional Conduct as well as Oregon statutes and rules related to accounting practices. Defendants contend that plaintiff's compla context, is rooted in plaintiff's perception that Wall's 2006, email blamed her for causing extra auditing work. fendants maintain that her compla of her private workplace dispute. to the Boa re in
r 8,

re,

is an extension iff d not wr r of re cial ati

However, pIa

her complaint to the Oregon Board of Accountancy in ity, and she submitted her complaint to an outsi

intiff listed the following examples of how Wall's or allegedly ran afoul of these standards: (1) at s contract with the City by invoicing the City for work pr to obtaining the required authorizat i (2) to provide the City with a detailed explanation for the t 1 cha s; (3) asking plaintiff to sign a statement would not report him to the Oregon Board i (4) failing to communicate in a t ly manner options for going forward after his independence on compromised; (5) making slanderous comments about to the media; and (6) sending a "questionable" f y. 11 OPINION AND ORDER

body

r

than

empl viewed as

r.

Further,

plaintiff's

compla

could fairly funds

implicat

the C

's management of

ven its association with Wall. s, plaintiff's compl to the violat Board Account accountancy

regarding

l's

alle

s

of

regulations could probably "fair [a] matter of itical,

be considered [as relatingj to or other concern to ).

social,

community." Therefore, matter
I

48 F. 3d at 422 find as a matter of

ernal quotations omitt that

aintiff spoke on a

public' concern.

De

s also contend that

intiff cannot succeed on this al duties. ection when Garcetti

claim because s

spoke in the context of her offi

Public employees do not receive First AmE:';ndment they "rna stat,ements suant to their offi (2006).

1 duties."

2....!.~~~=-=.~,

547 U.S. 4l0, 421

"[S]tatements are made speaker no off
1

t

speaker's capacity as citizen if the quest statements,

duty to rna

or if the speech was employee] was paid 546

not the product of to perform." F.3d citat contrasted 1121, 1127 n.2 '( Cir.

tasks [

2008)

(internal al

quotations duties s to

and

omitted) . with

Speech

related to offi "[bears]

can be (act

speech

t

similarit

taken] by numerous citizens every day."

Garcetti, 547 U.S. at 422.

12- OPINION AND ORDER

"The

question

of

the is a

scope

and

content of

of

a but

plaintiff's the

job

responsibil

ies

stion

fact,"

"ultimate stion of

constitutional significance of law. Posey, 546 F.3d at 1129-30. job script

facts as found" is a

"The inquiry should be practi to duties the employee

and look beyond actually performs."

547 U.S. at 424. stingui between 468 F.3d

In Freitag v. Ayers, the Ninth Circuit speech made as an 528 (9th Cir. 2006). not ta 533-34, act

loyee and speech made as a citizen.

There, when a prison guard's supervisors did s about inmate sconduct, at

on her compla the

she report

sconduct and lack of response to the

rector of Prisons, her State Senator, and the Inspector General, who launched an investigation. rst Amendment ret submitt capac Id. at 534-35. On
t

ew of pia

r

iation claim,

court found lors

iff cial

the original and not as a

s to her s tizen. Id. at 546.

her of

However, the

the court sti ing

found that her statements to the Senator agency were made "she tiated the her

ty as a private citizen, even though s while at work Id. at 545. her 1 and they

communicat

concerned the subject matter of her employment." Li Freitag, loyee.

aintiff first communicated her concern Plaintiff's October 9 email to

role as an

December 19 letter to Jansen and the C capacity as Finance Director, and t

y Council were sent in her content of December 19

13- OPINION AND ORDER

letter re Wall

ectspla

iff's

lief that

had a duty to bring the Sherman

lling issues to the attention of her supervisors. ., Ex. 8, p. 1. a City Finance

rector, my job inc I

s

managing the City

to maximi ze and protect;

ensure tha t

expenditures are properly authorized and documented before payment. As a profess
I

and a custodian of taxpayers' money,
H

=

am sure ed

you expect no less of me. October 25, 2006, part of my job to

).4

Even in

r memo to

r file,

aintiff stated t ma sure t

, "[iJt is ... an important eve ty ture is

authorized. department."

I would have questioned a s rman Decl., Ex. 7, p.

lar situation from any 3. Furt r, these

statements are consistent with states t her responsibilities

intiff's job desc include, "[managing J sing] tion of

ion, whi to City city."

maximi ze and

public resources H

and "[

r and Council regarding the financial
C

ghton Decl. However, pIa

rst), Ex. 1. iff's complaint to the Oregon Boa of

Accountancy is similar to Freitag's complaint to the investigating agency. As in pIa iff init ly complained to her

supervisor but eventually contacted an outside agency. that intiff ies,

There is no

any sort of duty to report unethical plaintiff began t complaint

behavior to outside

In additioti, plaintiff signed the letter "Janell K. Howard, y of Coos Bay Director." Sherman Decl., Ex. 8, p. 4. 14- OPINION AND ORDER

stating that she was writing as a professional CPA and not in her capacity as a City employee. Sherman Decl., Ex. 10, p. 1.

Defendants maintain that the complaint was premised on her personal dispute with Wall, that the billing issue was resolved

when plaintiff made the complaint, and that the complaint was made against Wall, and The not fact the that City. the These billing distinctions dispute are not from

persuasive.

arose

plaintiff's job is not dispositive.

See Freitag, 468 F.3d at 545.

Defendants do not explain or cite to any authority as to why the timing or the target of the complaint is relevant. Therefore, plaintiff presents a genuine issue of material fact whether she spoke as a citizen when she wrote to the Oregon Board of Accountancy. 3. Causation Plaintiff must show that her protected speech was a

substantial or motivating factor in her termination. at 1070.

Eng, 522 F.3d

Circumstantial evidence can be enough for the jury to Yartzoff v. Thomas, the fact that 809 the

infer causation between the two events. F.2d 1371, 1376 (9th Cir. 1987).

However,

employer knew about the employee's speech is not enough, in and of itself, Unified to survive summary judgment. Sch. Dist., 265 F.3d 741, Keyser v. 751 (9th Sacramento City 2001). The

Cir.

employee must also show at least one of the following types of evidence: (1) evidence that the events were close enough in time

15- OPINION AND ORDER

a ret

jury

1 the

Ily

cou
;

infer (2) evidence ected dence were"

te that ech,

ion the eit r

was
r

iation

express empl anat 751-52

opposition or to

to

the (3)

to

the

rs; or terminat

the empl

r's g at

Ise and pretextual".

(internal citation omitted) . between June 2007 aintiff's Oregon Board and her smissal ng v.

Here, fifteen months el of Account complaint This 1 other 268, 273 in

September 2008. of causation abs Breeden, 532

h of t

generally precludes a f Clark County Sch. Dist.

U.S.

(2001)

(twenty months

insufficient (9th

proximity); Manatt v. Bank of America, NA, 339 F.3d 792, 802 Cir. 2003) (nine months insuf cient);

383 F.3d 879, 887 (9th Cir. 2003) insufficient) . However, issue pIa of iff provi mater
1

(twelve months

s fact

s~fficient

evidence to create a r express

her

opposition to her

by suspending her for complaining to the Schwartzman v. Valenzuela, issue of material after king publicly about 846

Oregon Board of Accountancy. F.2d 1209, 1210-12 (9th Cir. 1988) existed al doctor, who was fi hospital ital's cl smanagement,

"presented a memorandum from the that he was not authoriz

cal director warning

to speak out on certa

employee matters"}.

16- OPINION AND ORDER

Likewise, Freeman suspended pIa the stat Board of Accountancy. that Freeman as rst), investi ion, 'lI20. a er

iff after s n her

complained to aintiff
~owa

aration

her to withdraw the compla Freeman did then not suspended comply r, his

pending request.

an

Creighton De compla action to

(First), Ex. 24.

suspension letter stated ral and is

Oregon Board of Accountancy was a "uni was not approved by the City

[that]

unacceptable." letter only express notify

Defendants argue his

Freeman's suspension to

sapproval of plaintiff's fai 70:20-71:6 (Apr. 19, 2010). suspens

See Freeman

However,

Freeman's deposition testimony on as substantive disapproval 84:7-15. ("In my opinion, She took act manager.

could be construed Freeman Dep. her pay y

plainti

's actions.

action she took was outsi that af cted ty.

's not c

She's not an elected official. In my

on that wasn't

her call to rna ke . ") . Plaintiff also al a er her suspension. s she was treat She states that he made r job. Howard Decl. fferently by Freeman ening comments rst) , 3. Her

that made her fear for performance Freeman wrote that [department], 25.

in January 2008 was generally pos "need [ed] to be itics." rily

, however ed on finance st), Ex. ce

not local

Creighton Decl.

In June 2008 Freeman reprimanded her

r entering his of

17- OPINION AND ORDER

to retrieve an appraisal document whi Cre common Declo Fina on De (First), Ex. 26. Plaintiff

was out of the office. that this was a Howard

ice that had never been an issue previously. rst), <J[24.

, a jury could find that City Council members' and the easure with plaintiff's stance on the Wall bill first email that plaintiff sent in October 2006 complained to the Oregon Board of Accountancy and time she was f i r e d . C r e i on Decl.

City Manager's continued until after s

potentially up until (First), Ex. 7; Wall Declo

. 120:12-15; Daily Dep. 10:3-11:3; Howard (First), Ex. 20. When all of with all issue tantial or
r.

(First), <J[16; Creighton Declo
io~s

these facts and inferences drawn

are viewed in context,

r favor, plaintiff presents a

of material fact as to whether her speech was a motivating factor City's decision to

terminate

Therefore, summary j B. Due Process Plaintiff asserts t liberty interest in her without due process of

is improper on this claim.

she had both a property interest job, law that the City terminat violation of the

a
r

Amendment.

The court ion as

plaintiff does not have a property nance Director, and that her 1 sease.

interest in her pos interest is not impl

III

18- OPINION AND ORDER

1. Property Interest

Procedural

due

process

protections

are

af by an "

to

se

le who have a property interest c source, such as state law." 577 (1972) ; Lawson v. Umatilla County, 139 F. 1998).

408 U.S. 564, 690, 692 ( 9
r' __ lr.

Under Oregon law, a property right to cont

employment 859

can be created by a statute or regulation, see F.2d 1543, 1549 (9th Cir. 1988), or by city ,handbooks. (2006).

~~~~~~~==

rsonnel

licies or

See Brunick v. Clatsop County, 204 Or. App. 326, 332-33 "at-will" s are not ent led to

Otherwise,

constitutional due process protection. (citing Cir.1993)). Even if language in an empl seems to create a property ,

139 F.3d at 692 995 F.2d 898, 904 (9th

handbook or personnel policy

erest in a job, "Oregon courts have
r

consistently held that a discla personnel [policy] status." is suf

an employee handbook or

ent to retain an employee's at-will at 693. This is the case even when the

Lawson, 139 F.

employee handbook or ot only be terminated id. (citing

icy provides that employees should reasons or after certain procedures, 112 Or. App. 34, 827 P.2d of

919, 920-21 (1992)), or when the city had a "standard pract affording 562 (9th

"
r. 2008).

Curtis v. City of Redmond, 303 F. App'x 560,

19- OPINION AND ORDER

In

s case, t

undi

ed evidence shows that City of Coos (nDirect No.

Bay Personnel and Administrative Directive No. 1

1") states: "Nothing contained in these policies and procedures is

.intended to confer

property right
II

inued employment, [or] Sherman Decl., Ex. 13, sclaimer shall these

to constitute a contract of employment ....
p.
5.

This language is virtually identical to the which stat that "under no circumstances

Lawson, poli

es be construed to act as any type of employment contract oyee of held policies oyee on County of Umatil this sclaimer loyee
1/

with any The court

139 F.3d at 691. even t though "[n]o ation of

control stated for at 693. "[e]xcept

personnel rmanent establi

scipline ined

11 be dis

rules and regulations." rective No.
1

also

states

at

to

those

oyees who are part

s to a collective contract city, of all

ining agreement, or loyment oyees of signed the city
a

a

specific ative

written of the

repres

are

'employees at will,' subject to discharge at the sole discretion of the city." evi Sherman Decl.,

Ex.

13, p.

5.

Plaintif

provides no

that s

is a party to a collective an emp
s.

ining City that provided r is controll

or that she r

contract with Thus, is dis

additional ri

In her Memorandum Opposit to De s' Mot for
Summary Judgment, pIa iff references a Coos Bay pol that
provides: "In order to provide a ir method of correcting, and
20- OPINION AND ORDER

Therefore,

her

property

interest

claim

must

fail

and

summary

judgment is granted on this claim. 2. Liberty Interest The liberty interest prong of the due process clause

"encompasses an individual's freedom to work and earn a living." Bollow v. Fed. Reserve Bank of San Francisco, 650 F.2d 1093, 1100 (9th Cir. 1981) process making a Accordingly, a public employee is entitled to due if the government stigmatizes the employee by "impairs [her] reputation for

prot~ction

charge against her that

honesty or morality."

Matthews v. Harney County, Or., Sch. Dist. A stigmatizing charge is reputation" or

No.4, 819 F.2d 889, 891 (9th Cir. 1987). one that "seriously damages
a

person's

"significantly forecloses his freedom to take advantage of other employment opportunities." Bollow, 650 F.2d at 1101 (citing Jablon 482 F.2d 997, 1000 (9th Cir.

v. Trustees of Cal. State Colleges, 1973).

Whether an employer's statements stigmatize an employee is Campanelli v. Bockrath, 100 F.3d

generally a question of fact. 1476, 1480 (9th Cir. 1996). In addition to the stigma,

the plaintiff must show that "1) there is some public

the accuracy of the charge is contested; 2)

disclosure of the charge; and 3) the charge is made in connection

when necessary, disciplining employees, the city will use progressive discipline pr6cedures with respect to non-bargaining employees." However, the court cannot locate this policy in any exhibit. In any case, Lawson establishes that the clear disclaimer would overcome such a policy. 21- OPINION AND ORDER

with

ion of employment."

Bradv v. Gebbie, 859 F.2d 1543, "When

1552 (9th Cir. 1988)

(citing Matthews, 819 F.2d at 891-92).

reasons are not given, simply

inferences drawn from dismissal alone are liberty erests." Bo11ow, 650

ufficient to impl

F.2d at 1101. Plaintiff's de s made a out, only a t ing al cla charge fails inst her. e s As de cannot show that

s correct
inst pla State Police iff, were

press release was not a charge statement ions leave. surely by the that the Oregon

investi

plaintiff had shopli

d and that

was on administrat newspaper coverage, conta any cha,rges y.

The press release and the ensuing stressing to plaintiff, did not called into stion her

ty that

sty or moral Neither Freeman p:;' or the

any statements in newspaper arti rise to the
1

es attr
a

ed to against he she

of

iff.

Freeman was quoted numerous times as saying t scuss the ident, but that "It's unfortunate she did.

could not

put us in the posit

As a city manager I will take all Creighton your to be able Ity,

steps necessary to protect the public trust." (Second), Ex. 12. Freeman also

"You have to As CEO, I

chief financial officer above reproach. to trust that she's got a

rson whole heartedly," and that "If she is g problem."
I

Crei

Decl.

(Second), Exs. 6, 13.

22- OPINION AND ORDER

While the newspaper articles and the statements within them do call attention to the investigation of plaintiff, they are not charges that she is a liar or a thief. Further, the statements by Freeman speaking to the necessity of trust and confidence are distinguishable from the charges that the Ninth Circuit found stigmatizing in Brady. In that case, the

employer issued a press release that detailed the many accusations against the doctor plaintiff, diversion and of including public that "through [he] that] his

systematic violated

16-year public

funds [and

knowingly trust and

trust

confidence

confidence in Oregon State Government cannot be restored if Dr. Brady continues to work." Brady, 859 F.2d at 1547 (internal

citations omitted). That inferences

This case does not present such accusations. from the fact that plaintiff was

can be drawn

dismissed does not create a genuine issue of material fact that the City made and published stigmatizing charges against her. 650 F.2d at 1101. C. Whistleblowing Under Oregon's whistleblower statute, Or. Rev. Stat.
§

Bollow,

Therefore, summary judgment is granted.

659A.203(1), a public employer, such as the City, may not: (b) Prohibit any employee from disclosing, or take or threaten to take disciplinary action against an employee for the disclosure of any information that 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; 23- OPINION AND ORDER

(B) Mismanagement, ss waste of funds or abuse authority or substant 1 and specific. danger to public health and resulting from action 0 the state, agency or ical subdivision ... To be eligible for whistl reas ly believe that she is ral or state law, rule or "mi action. (2005). audit waste of Pla li or gross waste of
Bj urstrom v.

ower protection, an empl sc

must

sing (1) a "violation of raj " by the government, or (2) " resulting from government

Or.

Lottery,

202 Or.

App.

162,

168

iff argues that her two ways: she disc under law under
§ §

s about Wall and his smanagement or a gross and she disclosed a However, plaintiff

659A.203(1) (b) (B), 659A. 203 (1) (b) (A) .

violation

does not present facts to show a "disclosure" of either one under the whist lower statute. the Oregon Court of 'disclose' known' or to ' disclosures department," as (citation omitt 915175, at *14 not ); understood to mean, Is found that "the term a gene sense, 'to make

up to general knowledge,'" and that protected "reports of wrongdoing wi thin an 1 as to outsiders. 202 Or. App. at 169, or 171

Clark v. Multnomah County, 2007) (reports of are made "to a rson

2007 WL are who was a

(D. Or. March 23, ss of the they

"disclosures" unaware

previously

information,

meaning

someone

'in

supervisory position,

than the wrongdoer himself'") 263 F.3d 1341,' 1351

ing

Huffman v. Office of Personnel Mgmt., 24- OPINION AND ORDER

Cir.2001)).

This court must apply the Bjurstrom analysis to the See Ryman

extent that the Court of Appeals' holding is applicable. v. Sears, Roebuck & Co., 505 F.3d 993, 995

(9th Cir. 2007).

Here, plaintiff did not "make known" or "open up to general knowledge" any new information regarding mismanagement to Jansen or City Council members in her email to Wall and Jansen on October 9, 2006, her file memo on October 25, 2006, or her letter to Jansen See Bjurstrom, 202 Or.

and the City Council on December 19, 2006. App. at 169. In fact,

Jansen knew that Wall would be sending a

supplemental bill to the City when she received the email from Wall on October 8, 2006. In addition, Wall stated in his deposition that City Council members had requested that he send the supplemental bill. Dep. 56: 16 - 5 7 : 25 . Wall

Plaintiff does not dispute this assertion and While she

therefore did not "disclose" this fact to her employer.

may have provided some details in her email and memos that were unknown to her employer, her main contribution to the discourse was to voice her displeasure with the handling of the situation to the very people who were responsible for the alleged mismanagement of the City's funds. Further, plaintiff's internal complaints did not reveal Under agency

mismanagement as contemplated by the whistleblower statute.
§

659A. 203 (1),

"mismanagement"

refers

only

"to

serious

misconduct having the effect of actually or potentially undermining

25- OPINION AND ORDER

the

's abil

to fulfill its public mission." Plaintiff fails to present t City's actions rose to dence s level she of

202 Or. App. at 173. reasonably wrongdoing. believed

Nor does pIa S

iff establi ly assert

that she identif that It that

a
ying

ss waste of funds. Wall $936

r extra work and $11,500 for responding to was a or Important
t~at

aintiff's

ethical accusat lief reas

s waste of funds does not make that show , pIa that undermined the C y's

ioning. City Council the 14.

ff conceded in her memo to the right to ask for (First), Ex.

"the City Council has ional t work."

Creighton Decl.

This statement or a ss

s not evidence a goodwaste of funds, much

belief of agency less areas

misconduct belief. There

, plaintiff's email and memo

in October 2006

and her letter of December 19, 2006, do not constitute disclosures. Even if they waste of ike her ernal I nts, pI ntiff's June 25, 2007, rs who However, olation of d, she did not disc se mismana or a

s

ter to the Oregon Board of Accountancy was sent to outsi sumably no knowl iff beli of the Wall bill she was dispute.

even though pIa

sclosing a

cal rules by Wall, the operative language of Or. Rev. Stat. § 659A.203 (1) (b) (A) spea to violations of law "by [a] state, agency

26

OPINION AND ORDER

or political subdivision .... " why Wall should be considered a of her whistleblower claim, and t why he should be.
§

i

s not make any argument ent y for the purposes of no reason

court can not s

Thus, she

osure a violation under

659A.203(1) (bl. There£ore, as a matter of , ne r plaintiff's internal Oregon Board of r claim.

memoranda and letters nor Accountancy can be the basis D. Wrongful Discharge Plaintiff asserts a

r

complaint to a st

common

law

wrongful

discharge

claim

against the City, based on her te audit. In Oregon, wrongful s

nation

speaking out on the

serves as a narrow exception discharge is against 995 F. Supp.

to the at-will employment public policy. 1122, 1127
(D.

Or.

1998),

in part on other grounds by
350 F.3d 967 (9th Cir.

2003) (citing Walsh v. Consolidated Freightways, Inc., 278 Or. 347, 351-52 (1977)).6 law, the availability of a common

law remedy, such as

discharge, depends upon the absence of

60regon courts ized two circumstances that can violate 1 and give rise to a wrongful discha claim: (1) fulfilling an important societal obligation (2) termination for pursuing a statutory rectly related to employee's position is of great public concern. Babick v. Or. Arena Corp., 160 Or. 140, 144 (1999); 321 Or. 532, 551 (1995) . 27- OPINION AND ORDER

a st stion. 2006) ;

ry remedy

adequately

ects the

ic interest

2006 WL 572152, at *2 (D. Or. 132 F. Supp.2d 1290, 1295 n. t 6

==~~~~==~====~~~==~,
~~~,

(D. Or. 2001);

995 F. Supp. at 1130-31 ( 297 Or. 10, 16 (1984)).

Delaney v. s

Generally,

court re and

zes that udes a

§

1983 provides

e statuto

remedies

for wrongful See, e.g., Supp.
~~~,

scharge when based upon 995 F. Supp. at 1131; (D. Or. 2006) ; ( D.
§

same allegations. v. Wyatt, 411

F.

2d 1223,

1225 at

Minter v. May 10, rst

Multnomah County, 2002) . 7 This

2002 WL 31496404, s to pi

*13-15

Or.

iff's claim 411 F. S

1983 for

Alfcendment retaliation. aintiff argues that

.

2d at 1225. s to empl ech to be unrelated claim

because

a

wrongful

s protect and a retaliat to an employee's lict and
§

conduct to claim
j~b

rectly re

res prot ies, the two

aims are in irreconcilable However, question of

1983 cannot be. an adequate on numerous occasions that s an adequate Baynton, at *14 411 F. Supp.

s
ther

court has stat

a s
me 2002

claim ts of the WL 31496404,

is not related to the 2d at 1225; iry is
r

("the

only

an

7S ec tion 1983 not be an e remedy certain circumstances, such as claims aga private oyers, cIa brought under respondeat s r or when fendants raise qualified immunity defenses. Dracer, 995 F. Supp. at 1131. None of these scenarios are icable here. 28- OPINION AND ORDER

alternative

claim,

if

proven,

provides

an

adequate

remedy")

(emphasis added). Therefore, because plaintiff's remedies under
§

1983

are

essentially the same as they would be under wrongful discharge, plaintiff is precluded from bringing a common law wrongful

discharge claim and summary judgment for the City is granted.
IV. CONCLUSION

Plaintiff's claims Rev. Stat.
§

for whistleblower retaliation under Or.

659A.203(1), wrongful discharge, and violations of her
§

due process rights under 42 U.S.C. law.

1983 each fail as a matter of

Therefore, defendants' motion for summary judgment (doc. #25)

is GRANTED as to those claims and DENIED as to the plaintiff's First Amendment retaliation claim. Plaintiff's motion for partial

summary judgment (doc. #29) is DENIED. IT IS SO ORDERED. Dated this

~

day of March 2011.

Ann Aiken United States District Chief Judge

29- OPINION AND ORDER