Kardell v. Lane County et al

Filing 126

ORDER: Denying Defendants' Motions for Summary Judgment 103 and 108 .The parties shall confer and contact Charlene Pew, my courtroom deputy, regarding a trial date for later this year. Signed on 6/4/2018 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARC KARDELL,

Plaintiff,
v.

Case No. 6:13-cv-736-MC
OPINION AND ORDER

LANE COUNTY, LIANE RICHARDSON,
and ALEX GARDNER,

Defendants.
_____________________________
MCSHANE, Judge:
Plaintiff Marc Kardell brings this First Amendment action against his former employer
Lane County, Lane County Administrator Liane Richardson, and County Counsel Alex Gardner.
The Ninth Circuit previously reversed in part my opinion granting defendants’ motions for
summary judgment. On remand, defendants again move for summary judgment. Because the
Ninth Circuit found that Kardell presented enough evidence that, when viewed in the light most
favorable to him, suggests he was retaliated against following a complaint to Human Resources
(HR) about Richardson’s misuse of county resources, the motion is DENIED.
1 – OPINION AND ORDER

STANDARDS
The court must grant summary judgment if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue is
“genuine” if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v.
Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). A fact is “material” if it could affect the outcome of the case. Id. The
court reviews evidence and draws inferences in the light most favorable to the non-moving party.
Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v.
Cromartie, 526 U.S. 541, 552 (1999)). When the moving party has met its burden, the nonmoving party must present “specific facts showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (quoting Fed. R. Civ. P.
56(e)).
DISCUSSION
Kardell alleges he suffered retaliation after exercising his First Amendment rights.
Kardell must establish three elements: (1) that he spoke on a matter of public concern; (2) that he
spoke as a private citizen and not as a public employee; and (3) that his protected speech was a
substantial or motivating factor in the defendant’s adverse employment actions. Eng v. Cooley,
552 F.3d 1062, 1070 (9th Cir. 2009).
Speech is “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 Cnty., 48
F.3d 420, 422 (9th Cir. 1995) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). Speech
alleging that public officials are not discharging government responsibilities, or are engaged in
wrongdoing or breaches of the public trust qualifies as a matter of public concern. Connick, 461
2 – OPINION AND ORDER

U.S. at 148. Speech is not of public concern when it addresses “individual personnel disputes and
grievances.” Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) (citation omitted).
The Ninth Circuit found that Kardell’s declaration was sufficient to establish that he
spoke on a matter of public concern when he states that he went to HR to voice his belief that
Richardson “was spending money to conduct outside investigations of meritless allegations.”1
The defense argues that Kardell’s concern was not truly public in nature, but rather focused on
whether he himself was under investigation and why he had been passed over for a promotion.
Kardell’s counsel confirmed at oral argument that he did not seek to recover for any speech
about his own alleged investigation.2 Although Kardell’s declaration is enough to survive
summary judgment, the court may revisit this issue based on the testimony at trial. See Eng v.
Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009) (whether speech is truly a matter of public concern
“is purely a question of law.”).
Turning to the other Eng factors, the defense argues that Kardell spoke as a private
citizen rather than a public employee and that Kardell’s comments to HR were not a substantial
or motivating factor that led to an adverse employment action. Eng v. Cooley, 552 F.3d 1062,
1070 (9th Cir. 2009).
Kardell argues the Ninth Circuit implicitly concluded he spoke as a private citizen. This
argument is meritless. Although I previously concluded “Kardell wrote the email not as a
concerned citizen, but in his role as a public employee,” the Ninth Circuit affirmed my
1

It is somewhat puzzling to think that Kardell could blow the whistle on Richardson’s baseless investigations when
Kardell’s conversation with HR occurred after the publication of newspaper articles revealing Richardson’s actions.
That cat was already out of the bag. And while Kardell states he wanted an investigation in order to bring
Richardson’s conduct to light before the County Commissioners, the commissioners (and the general public) were
clearly well aware of Richardson’s investigations when Kardell spoke to HR. Several commissioners had already
been quoted in the newspaper and one had already demanded an apology from Richardson.
2
Ironically, Kardell’s requested outside investigation into his own alleged investigation would have resulted in a
waste of county funds, as Kardell was not under investigation.

3 – OPINION AND ORDER

conclusion that Kardell’s April 2012 email was not a matter of public concern. Additionally, the
Ninth Circuit explicitly stated that on remand, this court could evaluate the additional Eng
factors as well as the application of qualified immunity.
“Statements are made in the speaker’s capacity as citizen if the speaker had no official
duty to make the questioned statements, or if the speech was not the product of performing the
tasks the employee was paid to perform.” Eng, 552 F.3d at 1071 (internal quotations omitted).
Kardell states HR was not in his chain of command and he knew of no duty he had to raise issues
regarding Richardson’s investigations with HR. Kardell Decl. ¶ 68. If in fact Kardell spoke to
HR about his concerns that Richardson was “spending money to conduct outside investigations
of meritless allegations,” Kardell spoke as a citizen and not a public employee. As with the other
elements and qualified immunity, much depends on what Kardell actually said to HR and what,
if anything, HR relayed to others about Kardell’s complaints. While legitimate complaints about
waste or mismanagement of funds could arise from a public employee’s role as a concerned
citizen, complaints to HR about one’s own performance or being passed over for a promotion
would arise solely from one’s role as a public employee. At this stage, Kardell’s declaration
nudges the scale ever-so-slightly to the side of a concerned citizen.
Kardell must next establish that his speech to HR was a substantial or motivating factor
in any adverse employment decision. Eng. 552 F.3d at 1070. Considering the hurdle Kardell
faces here, the parties spent little ink briefing this issue. Gardner’s motion simply refers the court
to his original motion. But that motion dealt exclusively with Kardell’s April email to the board.
Despite little evidence that HR ever relayed any of Kardell’s complaints to anyone, I conclude
defendants failed to meet their burden on this element.

4 – OPINION AND ORDER

Defendants argue that the decision to lay Kardell off was made because of office
reorganization decisions related to a coming budget deficit. There is strong evidence supporting
this theory. Kardell, however, presents evidence that Richardson’s own office grew, in number
of employees and in available funds, the year after Kardell was laid off.
Kardell’s theory appears to be that HR informed Richardson of Kardell’s complaints. In
retaliation, Richardson had Gardner reorganize the office to get rid of Kardell. One assumes
Gardner went along with this scheme simply to keep a powerful ally happy. Although this
appears a stretch, there is just enough for Kardell to avoid summary judgment. In reading the
emails from the relevant time period, it appears Richardson, Gardner, and Dingle were growing
ever more tired of Kardell’s ability to work with others and to follow instructions. Kardell’s
email to the board seemed to be the last straw. In that email, Kardell publicly criticized not only
his boss’s decision on a staffing issue, but challenged Gardner’s general knowledge of land use
issues faced by the county. But defendants do not argue the email led to Kardell’s layoff. And
although defendants note that many county agencies refused to work with Kardell, Richardson
herself informed Gardner not to allow Kardell to work for those agencies. Under Kardell’s
theory, Richardson purposefully diminished Kardell’s usefulness as retaliation for Kardell’s
comments to HR, as opposed to any legitimate performance issues. Kardell’s case is
strengthened by the fact that his comments to HR, followed by Richardson’s edict that Kardell
not work with numerous agencies, followed by Gardner’s office reorganization, all occurred in a
four month period. This theory, viewed in the light most favorable to Kardell, could result in a

5 – OPINION AND ORDER

jury finding his comments to HR were a substantial or motivating factor in the decision to lay
Kardell off.3
Richardson and Gardner argue they are entitled to qualified immunity. The evidence
strongly points to the fact that Richardson and Gardner were primarily aware of Kardell’s request
to find out whether he himself was under investigation. After all, the newspaper articles
published before Kardell spoke with HR adequately informed Richardson and Gardner, along
with the public at large, of Richardson’s baseless investigations. In an email Kardell drafted at
the time, he informed his supervisor that “I believed much of what I had to say [to HR] was very
similar to what had been discussed in that article.” Kardell Decl. at Exhibit WW; ECF No. 69-9.
As what Kardell said to HR was already public knowledge, his theory of a scheme to silence him
loses some of its steam. Once again, I am bound by the Ninth Circuit’s conclusion that at this
stage, Kardell has established that he complained to HR that Richardson was “spending money
to conduct outside allegations of meritless investigations.” Because any county supervisor would
realize that retaliating against an employee for raising complaints about a supervisor’s waste of
county funds would violate the employee’s first amendment rights, Gardner and Richardson are
not entitled to qualified immunity. Depending on the testimony at trial, Gardner and Richardson
may raise this issue after Kardell presents his case in chief.

3

In reviewing the record, a more realistic theory is that Richardson and Kardell simply butted heads. Kardell clearly
felt he had been unfairly passed over for a promotion based on Richardson’s comments to the board. But this
occurred well before Kardell spoke to HR. Being let go for personal reasons, or as part of a legitimate office
reorganization, is not a violation of an employee’s first amendment rights.

6 – OPINION AND ORDER

CONCLUSION
Defendants’ motions for summary judgment are DENIED. The parties shall confer and
contact Charlene Pew, my courtroom deputy, regarding a trial date for later this year.
IT IS SO ORDERED.
DATED this 4th day of June, 2018.

/s/ Michael J. McShane
Michael McShane
United States District Judge

7 – OPINION AND ORDER