Hagen v. City of Eugene et al

Filing 101

Order regarding Motions in Limine in regards to Grievance Arbitration Issue and Qualified Immunity on "Public Concern" argued on 3/7/2012. Signed on 3/13/2012 by Chief Judge Ann L. Aiken. (lg)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF OREGON

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oR DE R
Civ. No. 10-6100-AA

BRIAN HAGEN,

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Plaintiff,
vs.
CITY OF EUGENE, PETE KERNS,
JENNIFER BILLS, and TOM EICHHORN,

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Defendants.

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AIKEN, Chief Judge:

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Defendants moved for a court trial of two issues prior to

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the jury trial scheduled in this case.

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court heard oral argument on those issues, as well as considered

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exhibits and heard witness testimony.

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I. Grievance Arbitration Issue

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Plaintiff grieved his May 20,

On March 7, 2012,

the

2009 transfer from the K-9

team through the grievance process set out in the collective
1 - ORDER

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bargaining agreement between the City and the

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Employees'

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October

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plaintiff's contentions in his grievance was that his transfer

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from

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discrimination against Officer Hagen by the Department of his

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protected whistleblowing

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program and the leadership of the

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grievance

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Association.

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K-9

2009

was

of

the

his

to

An

arbitration hearing was

resolve

result

of

plaintiff's

a

went

regarding

of

One

harassment

safety

of

same program."

to

Police
held on

grievance.

"pattern

actions

transfer

Eugene

arbitration

the

of

and

K9

Plaintiff's
in

which

an

arbitrator issued a decision on plaintiff's claim.

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As part of his grievance, plaintiff alleged that defendant

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Bills' decision to transfer him from the K-9 team was motivated

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by retaliation against plaintiff for

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safety issues.
Defendants

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argue

that

speaking out about SWAT

plaintiff's

grievance

arbitration

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decision is preclusive on the issue of defendant Bills' motive

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in transferring plaintiff from the K-9 unit.

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Under Oregon law, issue preclusion applies when:

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1. The issue in the two proceedings is identical.
2. The issue was actually litigated and was
essential to a final decision on the merits in
the prior proceeding. 3. The party sought to be
precluded has had a full and fair opportunity to
be heard on that issue. 4. The party sought to be
precluded was a party or was in privity with the
party to the prior proceeding. 5. The prior
proceeding was the type of proceeding to which
this court will give preclusive effect.

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Boise Cascade v. Bd. of Forestry, 186 Or. App. 291, 298, 63 P.2d
598

(internal quotation omitted), rev. denied,

335 Or. 578, 74

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P.3d 112 (2003).
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The party asserting issue preclusion (defendants) bear the
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2 - ORDER

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burden of proof on the first, second and fourth requirements.

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Thomas v. US Bank Nat'l Assoc., 224 Or. App. 457, 469, 260 P.3d

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711, rev. denied, 351 Or. 401, 268 P.3d 152 (2011).

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Based on the witness testimony before this court, I find

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the

issue

of

defendant

Bills'

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plaintiff out of the K-9 unit was not Mactually litigated" in the

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grievance proceeding; nor was it "essential to a final decision

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on the merits" in the grievance proceeding.

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on unrebutted witness testimony indicating that "the issue at
whether

the

motivation

transfer

in

transferring

Specifically, I rely

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arbitration"

was

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discipline.

Plaintiff's

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sergeant qualified as a legitimate management right to transfer

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plaintiff.

alleged

refusal

itself
to

constituted

work

with

the

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The record also supports the contention that "retaliation"

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was not raised in the underlying proceeding except as to whether

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there was an objective review of the facts, as part of the "just

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cause" provision of the collective bargaining agreement.

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is no evidence that retaliation as defined pursuant to First

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Amendment case law was raised in the arbitration.

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evidence

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specifically limited to a violation of an article or subsection

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contained within the collective bargaining agreement. Further,

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there does not exist a

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agreement that prohibits the employer from retaliating.

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The

was

that

court

the

also

grievance

procedure

There

In fact, the
at

issue

was

section in the collective bargaining

relies

on

evidence

in

the

record

of

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plaintiff's "full and fair opportunity to be heard" during the

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underlying proceeding.

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did not

3 - ORDER

receive

Again, it is undisputed that plaintiff

relevant

information

from defendant

despite

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repeated requests until after the grievance arbitration hearing.

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II. Qualified Immunity on "Public Concern"

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Defendants next moved for
retaliation

Amendment

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Defendants

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reasonably been considered speech concerning his personal safety

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and not protected speech because it was in the nature of an

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employee grievance.

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least,

the

that

law at

based

plaintiff's

Specifically,
the

on

time

qualified

First

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argue

claim

judgment on plaintiff's

complaints

defendants

of defendants'

immunity.

could

have

assert

that,

at

actions,

was

not

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clearly established that plaintiff's speech activity fell within

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the ambit of "public concern."

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In order to prevail on a First Amendment retaliation claim,

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a public employee must establish, among other elements, that his

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speech acti vi ty was a matter of "public concern."

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552 F.3d 1062, 1070

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(2010).

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employee plaintiff must show that,

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actions, it was clearly established that his speech involved a

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matter of public concern.

Rivero v.

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Francisco, 316 F.3d 857, 865

(9~

(9~

Eng v. Cooley,

Cir. 2009), cert. denied, 130 S. Ct. 1047

To overcome a defense of qualified immunity, a public
at the time of defendants'

City and County of San

Cir. 2002).

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Here, plaintiff, a police officer employee, complained to

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fellow police officers as well as his supervisors, the police

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union

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management,

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when plaintiff's unit was dispatched to emergency calls along

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with the SWAT team unit (another Eugene police response unit) .

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In

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accidental shooting in a residential neighborhood where the spent

president,

fact,

4 - ORDER

union

representatives,

SWAT

sergeants,

and

about accidental firearm discharges that occurred

one

instance

complained

of

by

plaintiff

was

an

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bullet was never recovered.

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around the accidental firings when he lodged his complaints was

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for his own safety, coworker safety, as well as the safety of the

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residential neighborhoods where at least one of the accidental

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firings occurred.
After

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considering the

Plaintiff testified that his concern

witness

and considering the

testimony along with

content,

form,

the

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exhibits,

and context of

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plaintiff's speech, I

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of public concern and therefore defendants are not entitled to

find that plaintiff's speech was a matter

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the affirmative defense of qualified immunity.

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plaintiff's speech is undisputedly a matter of public concern,

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that is,

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responding to emergency calls.

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directed internally rather than to the public at large is not

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dispositive as to whether speech is considered a public concern.

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Desrochers v. City of San Bernardino, 572 F.3d 703, 714 (9 th Cir.

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2009).

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to whether a public employee's speech involves matters of public

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concern for purposes of a First Amendment retaliation claim, is

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whether the speech addresses a matter of public as opposed to

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personal interest.

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review of the "whole record."

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significant that the court holds that the content of the speech

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is the "greatest single factor" when determining whether the

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speech is of public concern, and the court defines the "scope of

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public concern" "broadly."

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at whether a public employee's speech is "more likely to serve

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the public values of the First Amendment."
5

ORDER

The topic of

accidental firearm discharges when police officers are

In fact,

Moreover, the fact that speech is

held that the essential question as

Id. at 708.

This determination is made by
Id.

at 709.

rd. at 710.

Moreover,

it is

Finally, the court looks

rd.

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Here,

when reviewing the record as

raised

by

plaintiff

a

matter

the

safety

of

public

issues

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concern,

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addressed a matter of public versus personal interest.

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the cases relied upon by defendants can be distinguished.

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Ramirez v.

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complaining

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weapons, and other equipment."

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Oct. 25, 2011).

County of Marin,
about

the

clearly

whole,

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and based on the

are

a

content of plaintiff's

speech,

it

Moreover,
In

plaintiff alleged retaliation for

"supposed

need

for

protective

vests,

2011 WL 5080145, *9 (N. D. Cal.

The court concluded plaintiff's speech on those

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issues were not matters of public concern because it concerned

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only his supervisors and his work place safety.

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Nederhiser v. Foxworth, the court held that a police officer's

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letter criticizing an internal investigation into his conduct

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addressed to

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constitute a matter of public concern.

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March 21, 2007).

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that

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management's response to the situation are not matters of public

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concern.

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superior officers

complaints

in

the

police

Similarly, in

force

2007 WL 869710

did

not

(D. Or.

Finally, in Robinson v. York, the court held
about

the

566 F.3d 817, 823

job performance of

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co-workers

and

Cir. 2009).

Plaintiff's speech in the case at bar can be distinguished.

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Plaintiff's speech, as a police officer responding to emergency

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calls as a public safety officer, complaining about fellow police

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officers who repeatedly "accidentally discharge" their firearms

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during emergency response calls, is clearly speech that concerns

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the public.

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including a complaint about the job performance of a co-worker,

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a letter criticizing an internal investigation into the police

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officer's conduct,
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The same cannot be said for

the cases cited above,

complaints by police officers about their

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supervisor's management styles including creating a hostile work

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environ~ent

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the need for "protective vests, weapons, and other equipment."

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by violating internal policies, and a complaint about

Finally, defendants rely on the recent case, Hunt v. County
(9 th Cir.

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of Orange,

2012 WL 432297

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trial

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contested

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Amendment,

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defendant was entitled to qualified immunity because a government

court

concluded

that

plaintiff's

race

for

sheriff

but

the

Ninth

in

defendant's

Feb.

was

not

Circuit

2012), where

campaign

protected
reversed

speech
by

and

a

the

First

found

that

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could have believed that plaintiff fell within the exception for

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policy-makers

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violating his constitutional rights.

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Again, this case is distinguishable from the facts at bar.

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we have by definition, an issue of public safety when there is a

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police officer employee responding to emergency 911 calls from

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the public and who complains about fellow officers accidentally

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discharging

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assistance calls.

their

he

weapons

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could

when

demote

but

in

official

that

"reasonably

the

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such

position

l3,

mistakenly"

plaintiff

2012 WL 432297,

responding

to

without
*7-8.
Here,

those

public

denied as

stated

CONCLUSION

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Defendants'

motions

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the

court

are

above.

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for

IT IS SO ORDERED.

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Dated this

I~day

of March 2012.

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Ann Aiken
United States District Judge

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7 - ORDER