Nichol v. City of Springfield et al

Filing 69

OPINION AND ORDER: Defendants' motion for summary judgment 35 is GRANTED IN PART and DENIED IN PART as follows. All defendants are entitled to summary judgment on the § 1983 due process claim. Grimaldi is fu1ther entitled to su mmary judgment on the § 1983 equal protection and First Amendment claims. Defendants' motion is otherwise denied. Because all claims against Grimaldi have been either dismissed or resolved in his favor, he is hereby dismissed from this action as a defendant. Signed on 12/3/2017 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

Case No. 6:14-cv-01983-AA
OPINION AND ORDER

MELANIE NICHOL,
Plaintiff,
vs.
CITY OF SPRINGFIELD; GINO GRIMALDI,
in his individual and official capacities, and
RICHARD L. LEWIS, in his individual and
official capacities,
Defendants.

AIKEN, Judge:
In this employment action, plaintiff Melanie Nichol, a fonner communications officer
employed by defendant City of Springfield ("the City"), alleges she was terminated in violation
of her rights under federal and state law.

Plaintiff alleges the City, along with individual

defendants Gino Grimaldi (the City Manager) and Richard Lewis (the fotmer Acting Chief of the
Springfield Police Depatiment), fired her in retaliation for repotiing misconduct in the
Springfield Police Department. Plaintiff assetis that defendants' actions violated her rights to
free speech, due process, and equal protection under the United States Constitution; her right not

Page 1 - OPINION AND ORDER

to be retaliated against for reporting sexual misconduct in the workplace under Title VII of the
Civil Rights Act and Oregon's employment discrimination and whistleblower statutes; and her
rights as a union member.
Defendants now move for summary judgment on all claims.

Defendants filed their

motion more than a year and a half ago, but I stayed consideration of the motion pending
resolution of state comi proceedings related to the revocation of plaintiffs telecommunications
license, pursuant to the principles atiiculated in Younger v. Harris, 401 U.S. 37 (1971) and
Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004) (en bane). See Nichol v. City of Springfield,

2016 WL 3512071, *5 (D. Or. June 27, 2016). In July 2017, the Oregon Court of Appeals
affirmed the revocation of plaintiffs license, and plaintiff elected not to petition the Oregon
Supreme Court for review.

Accordingly, I lifted the stay and resumed consideration of

defendants' motion. I heard oral argument on the motion on November 16, 2017.
For the reasons set forth below, defendants' motion for summary judgment is granted in
part and denied in part. Specifically, I hold that Grimaldi is entitled to summary judgment on all
claims against him and that all defendants are entitled to summary judgment on plaintiffs due
process claim. The motion is otherwise denied.

BACKGROUND
Because the motion before the comt is defendants' motion for summmy judgment, the
following factual summary construes the evidence in the light most favorable to plaintiff. JL
Beverage Co., LLC v. Jim Bean Brands Co., 828 F.3d 1098, 1105 (9th Cir. 2016).

Beginning in 2004, plaintiff worked as a communications officer (sometimes referred to
as a dispatcher) for the Springfield Police Depattment. For seven years, she did her job without
disciplinary incident. Her 2011 to 2012 performance review rated her as meeting or exceeding

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expectations in all areas, and noted that she was "helpfol and courteous to her co-workers."
Owens Deel. Ex. 8 at

37~38.

In December 2011, plaintiff contacted the City's Human Resources Director, Greta
Utecht, to complain about the conduct of some Springfield Police Department officers. Utecht,
who was out of town, directed plaintiff to meet with HR employees Tom Mugleston and Peter
Fehrs. According to a memo Fehrs drafted about the meeting, plaintiff appeared nervous and
told HR staff she was anxious because police department employees were discouraged from
rep01ting problems. Fehrs wrote that plaintiffs statements focused on "a history of the detective
unit coming into dispatch, using foul language and anger at dispatchers in the dispatch area, or
'blowing up' at dispatchers while on the job." Lewis Deel. Ex. 1 at 1.
Plaintiff supp01ted her complaint with descriptions of three specific instances of
purp01ted misconduct. The first incident involved a SWAT team call that had taken place about
a year before plaintiff approached HR. Plaintiff was in the dispatch office and the SWAT team
was out on a call dealing with a barricaded suspect who claimed he had murdered a sex worker.
It was the dispatchers' practice to individually inform SWAT team members when a SWAT call

went out. One member of the SWAT team, Officer George Crolly, was not notified about this
paiticular call. Plaintiff reported to Fehrs and Mugleston that Crolly, who was furious about the
oversight, came into the dispatch office and yelled at a dispatcher, using an expletive. According
to Feln·s's notes, Crolly's outburst happened while dispatchers were still on the phone, including
with the barricaded suspect. Plaintiff expressed concern that Crolly had exacerbated an already
stressfol situation.
The second incident arose when a different officer was ordering pizzas for those in the
office to share. After dispatchers asked the officer when the pizzas would arrive, the officer

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entered the dispatch office while calls were in progress and yelled at the dispatchers about
pestering her. Plaintiff went to a sergeants' meeting the next day to address the issue, telling the
officers that they could not yell in the dispatch office and needed to pull communications officers
outside to address any issues. Plaintiff reported that the next day, Sergeant Dave Lewis called
her into his office. He rudely told plaintiff she could not come into sergeant's meetings to
address issues, treated her like he was inte1mgating a suspect, and was so aggressive he scared
plaintiff. He ended the meeting by telling plaintiff, "Don't think you're not welcome back here.
You're welcome back if you bake us some cookies." Lewis Deel. Ex. I at 2. Dave Lewis is the
brother of defendant Richard Lewis, and the two are very close. 1
Finally, plaintiff described a confrontation with Officer Jeff Mattin. Plaintiff and Mmtin
had supp01ted different candidates in the recent union elections; Martin's chosen candidate won,
and he called plaintiff on the phone to gloat about the results. After the two traded sarcastic
remarks, Martin barged into the dispatch office and called plaintiff a "little bitch, a little shit, and
a little snot." Lewis Deel. Ex. I at 3. It was this incident that convinced plaintiff it was time to
come to HR with her concerns about officers yelling in the dispatch office; she believed
detectives had come to think they would face no consequences for such behavior.

HR

understood the Mattin incident to be the focus of plaintiffs complaint and investigated plaintiffs
allegations related to that incident. They did not investigate plaintiffs complaints about Crolly
or Dave Lewis.
On January 10, 2012, plaintiff met privately with Utecht. There is conflicting evidence
about why this meeting took place. Plaintiff testified that her meeting with Mugleston and Fehrs
proceeded no1mally until she moved from describing the dispatch office incidents she had
1

To avoid confusion, throughout this opinion, I refer to defendant Lewis as "Acting
Chief Lewis" and to his brother as "Dave Lewis."
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personally witnessed to describing serious misconduct among police department senior staff,
including allegations involving then-Chief of Police Jerry Smith. Plaintiff stated that once she
"started down the road" of repo1iing serious misconduct, Mugleston and Fehrs shut her down
and told her she would need to meet with Utecht directly. By contrast, Utecht testified that Fehrs
and Mugleston refetTed plaintiff to her because they were concerned about how upset she was
regarding the dispatch office issues and "weren't sure exactly what was going on." Utecht Dep.
36:16-17.
Utecht and plaintiff agree that they met for a long time, between two and three hours.
Plaintiff testified that during her meeting with Utecht, she repo1ied widespread misconduct in the
police department, including captains having inappropriate relationships with subordinates,
officers having sex in the workplace, and a longstanding affair between Chief Smith and another
departmental employee. Plaintiff stated that she linked Chief Smith's affair to favoritism and
staffing decisions that posed safety and fairness issues. Utecht denied that plaintiff reported any
sexual misconduct or favoritism to female employees, but acknowledged that plaintiff
complained about Chief Smith showing favoritism generally. Utecht testified that plaintiffs
fairness concerns centered on the union, which plaintiff considered to be conupt.
After an investigation, HR concluded that both plaintiff and Mmtin had behaved
unprofessionally.

Mmiin disputed using the precise language plaintiff repmied to HR, but

admitted he had called plaintiff a "goofy bitch." Schmidt Deel. Ex. 4 at 31.
Believing she had exhausted her available avenues to relief within the workplace,
plaintiff wrote an anonymous letter regarding misconduct in the depaiiment. The letter alleged
that Chief Smith had been involved in several affairs with subordinates and had attempted to
engage several other women in sexual relationships; had falsified data and forged documents to

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justify pay and benefits for his paramour; had used ostensible business trips, funded by the City,
for his own personal enjoyment; and had protected officers from discipline and granted them
promotions in exchange for their silence about the affairs. The letter also accused Dave Lewis of
misconduct, asserting he had carried on inappropriate sexual relationships with HR employees
and female informants, violated criminal suspects' constitutional rights including the right to
speak to an attorney, and used his inside access to keep a witness in one of his ongoing cases out
of legal trouble so her credibility would not be impeached at trial. Finally, the letter asse1ted that
Captain Richard Hanison had cmTied on a workplace affair for several years and had engaged in
sexual activity in the department's gym, offering incentives to officers willing to keep his
activity a secret. Plaintiff sent copies of the letter to the Department of Public Safety Standards
and Training ("DPSST"), the state agency charged with licensing public safety officers; the
Oregon State Police; and the local newspaper, The Register-Guard.
The City received a copy of the letter, at the latest, on January 18, 2012. Grimaldi,
Utecht, and Chief Smith discussed the letter shortly thereafter. Although Grimaldi spoke to
Smith and Utecht spoke to Smith's alleged paramour about the letter, the City did not foimally
investigate the allegations against Chief Smith. Chief Smith had previously investigated Captain
HatTison for misconduct and concluded that the allegations were baseless. Grimaldi did not
othe1wise investigate the allegations against Hanison.

Grimaldi testified that the City

investigated the allegations against Dave Lewis, but did not report the results of that
investigation.
Sho1tly after the City received the anonymous letter, plaintiff had a follow-up meeting
with Utecht. The record is unclear on the timing of the meeting, but it likely happened after
Utecht sent a February 10, 2012, memo to Chief Smith summarizing the investigation of

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plaintiffs complaint about Martin. Chief Smith attended the meeting with plaintiff and Utecht.
During the meeting, Utecht told plaintiff it had found her allegations about Martin
unsubstantiated, but did not address any allegations of wider misconduct. Plaintiff expressed her
concern to Utecht and Chief Smith that she would be targeted by police department employees
because others would know she had gone to HR due to the investigation, but Utecht and Chief
Smith assured her she had nothing to worry about.
Spurred by plaintiffs complaints, Utecht conducted a department-wide employee survey
and met one-on-one with employees. After completing the survey, Utecht attended a sergeant's
meeting during which she addressed documentation related to workplace misconduct. Utetcht
testified that she used plaintiff as an example during this meeting but that the briefing did not
focus on plaintiff.

Sergeant John Umenhofer, who attended the meeting, remembered it

differently; he stated that Utecht told the sergeants that "every department has an employee" like
plaintiff and that they needed to "document, document, document everything [plaintiff] does."
Umenhofer Dep. 55:6-10.
It was well-known that plaintiff had complained to HR. Utecht believed that the entire
police department knew about the complaints. Umenhofer relayed a conversation with Dave
Lewis during which Lewis complained about plaintiff. Using foul language, Dave Lewis told
Umenhofer, "I shouldn't say this, but some people need to be shot." Umenhofer Dep. 39:2-16.
According to Umenhofer, Dave Lewis was "livid" plaintiff had complained to HR.
About a year passed. In March 2013, Chief Smith abruptly announced his retirement. It
later came to light that Grimaldi had asked him to resign after a video of Chief Smith and his
paramour surfaced, substantiating some of the allegations in the anonymous letter and in the

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complaint plaintiff made to Utecht. Defendant Richard Lewis assumed the role of Acting Chief
of Police.
Also in March 2013, plaintiff lodged a complaint with Sergeant Richard Charboneau
about another Springfield Police Department officer. 2 Umenbofer and Charboneau both testified
that the officer was dangerous and should not have been hired, stated that he was kept on the
police force despite numerous serious misconduct issues, and repotted other officers' reluctance
to work with him due to safety concerns. Umenhofer believed the officer was able to maintain
his position, in patt, because he was close friends with Dave Lewis, and Acting Chief Lewis used
his rank to protect his brother's friends.
Plaintiff told Charboneau that she had learned about a message the officer had sent using
the department's computer-based "MDC" system. In the message, the officer had gossiped to
another depattment employee that the vehicle of a former Springfield police officer had been
parked in plaintiffs driveway overnight. Plaintiff believed the officer had violated departmental
policy by using his access to state databases to run the vehicle's license number and by sending a
message about non-work matters over the MDC system.

She told Charboneau she was

concerned that the officer was watching her, noting that he had also reported her for alleged
misuse of sick leave in the past. There is conflicting evidence in the record regarding what
plaintiff told Charboneau about how she learned about the MDC message. Charboneau 's notes
indicate plaintiff told him she was infotmed by another dispatcher, but plaintiff maintains she
never said that. Plaintiff in fact learned about the message by looking it up herself on a work
computer.

2

Because this opinion discusses information from the officer's confidential personnel
file, the officer's identity is not disclosed.
Page 8 - OPINION AND ORDER

Acting Chief Lewis assigned Sergeant Anthony Rappe to investigate plaintiffs
complaint. Rappe concluded that although the officer had not used database access to run the
license plate number, he had violated depmimental policy by sending a personal message using
the MDC system. As discipline, Rappe counseled the officer on appropriate use of the MDC
system and the dangers of workplace gossip.
During the course of the investigation, however, Rappe began to suspect that plaintiff had
not been entirely truthful to Charboneau. On April 19, 2013, Rappe met with plaintiff and
pressed her about how she had initially learned about the MDC message. Plaintiff did not want
to answer, arguing it had nothing to do with whether the officer had violated departmental
policy. Rappe ordered her to answer his question, and plaintiff asked him whether she could be
disciplined for refusing an order. When Rappe answered yes, and told plaintiff that discipline up
to termination was possible, plaintiff refused to answer any more questions without a union
representative present. In his investigative memo, Rappe wrote that when plaintiff "walked out
of [his] office," she "told [him] that she may not be a police officer and familiar with all of her
rights but she was not a stupid person." Schmidt Deel. Ex. 3 at 26. At his deposition, Rappe
testified that he didn't understand why plaintiff would refuse to answer the question if she had
nothing to hide.
On April 23, 2013, Rappe met with plaintiff with a union representative present. At that
meeting, plaintiff told Rappe she had looked up the MDC message on her own computer and
denied ever telling Charboneau she had learned about the message from another dispatcher.
On April 25, 2013, Utecht and Acting Chief Lewis called Charboneau to ask him how
ce11ain he was that plaintiff had told him she learned about the MDC message from another
dispatcher. When Charboneau responded that he was quite sme, Utecht and Acting Chief Lewis

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directed him to write a memo on the subject because they would be taking disciplinary action
against plaintiff for dishonesty.

Acting Chief Lewis ordered Rappe to investigate fmiher

whether plaintiff had been dishonest when she made her report to Charboneau.
On May 1, 2013, Acting Chief Lewis notified plaintiff by memo that she was under
investigation for misconduct.

The memo alleged plaintiff had provided false or fictitious

information to supervisors, specifically Charboneau and Rappe, during the investigation
regarding the MDC message. Plaintiff was placed on paid leave pending the results of the
investigation. On May 10, 2013, Rappe wrote a memo to Acting Chief Lewis regarding the
dishonesty investigation. Rappe concluded that it was "apparent" plaintiff had been untruthful
and was trying to blame Charboneau rather than own up to her dishonesty. Schmidt Deel. Ex. 3
at 30.
Acting Chief Lewis then reviewed the HR records regarding plaintiffs prior complaints.
When he read the Martin complaint, he noted what he believed to be an inaccuracy in her report
about the Crolly incident; Acting Chief Lewis, who at the time of that incident had been a
member of the SWAT team, was certain the call with the barricaded suspect was over by the
time Crolly entered the dispatch office to yell at the communications officer. His certainty rested
on his own memory that he had a conversation with Crolly before Crolly entered the dispatch
office, which meant that the incident had been resolved and the SWAT team had returned to the
station.
Acting Chief Lewis ordered Rappe to investigate whether plaintiff had been dishonest in
her repoti of the timing of the Crolly incident. In a memo dated May 16, 2013, Rappe reported
that he had confirmed most of the details of plaintiffs repo1i through an interview with Crolly.
Crolly admitted he had barged into the dispatch office, yelled at a dispatcher, and used an

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obscenity. However, Rappe concluded the incident with the barricaded suspect had been "long
over" by the time Crolly entered the dispatch office.

Schmidt Deel. Ex. 3 at 35.

Rappe

concluded that plaintiff had provided false and misleading information to HR when describing
the Crolly incident.
On May 22, 2013, Acting Chief Lewis gave plaintiff written notice that she was being
fired for dishonesty. On May 31, 2013, plaintiff responded in writing. She maintained that the
alleged examples of dishonesty were mere misunderstandings and asse1ied she actually was
being fired in retaliation for reporting workplace misconduct.

Plaintiffs te1mination was

effective June 5, 2013.
Plaintiff promptly grieved her termination with Acting Chief Lewis. In a memo dated
June 8, 2013, Acting Chief Lewis wrote back to say he had found no basis for altering his
tem1ination decision. Plaintiff, through the union, appealed to Grimaldi. In a July 24, 2013
memo from Grimaldi to the president of the Springfield Police Association, Grimaldi denied the
grievance and upheld Acting Chief Lewis's termination decision.

The union elected not to

arbitrate the termination, rendering Grimaldi's decision final.
On Febrnary 17, 2014, plaintiff submitted a complaint to the Oregon Bureau of Labor and
Industries ("BOLI"), alleging she had been fired in retaliation for repmiing misconduct. On
September 16, 2014, BOLI closed its investigation and issued plaintiff a right-to-sue letter.
Plaintiff field this lawsuit on December 11, 2014.
After BOLI closed its investigation but before plaintiff filed this action, DPSST initiated
licensure revocation proceedings against plaintiff. Pursuant to state law, DPSST is required to
revoke the ceiiification of any dispatcher who is terminated for cause.

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Or. Rev. Stat. §

181.662(4). A termination for dishonesty is a termination for cause. Or. Admin. R. 259-0080070.
On April 21, 2015, the parties pmiicipated in a contested case hearing before an
administrative law judge. DPSST was represented by an Assistant Attorney General from the
state Department of Justice, and plaintiff was represented by counsel. The ALJ heard testimony
and took other evidence.

On June 19, 2015, the ALJ issued a proposed order.

The ALJ

recommended that DPSST find that plaintiff was not discharged for cause and that her
telecommunicator license should not be revoked. Specifically, the ALJ found the weight of the
evidence showed the purpo1ied instances of dishonesty likely stemmed from misunderstandings
and that DPSST had conducted no independent fact-finding of its own, instead relying on the
records of the police department's internal investigations.
On December 17, 2015, DPSST issued its Final Order.

DPSST rejected the ALJ's

recommendations and many of her findings of fact. Instead, DPSST found plaintiff engaged in
dishonesty and had been discharged for

cause.

DPSST then revoked plaintiffs

telecommunicator license. Plaintiff appealed to the Oregon Court of Appeals, which affirmed
without opinion on July 6, 2017. Plaintiff decided not to seek review in the Oregon Supreme
Comi and the pmiies now ask me to rule on defendants' motion for summary judgment.
STANDARDS

Summary judgment is appropriate if "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving
party has the burden of establishing the absence of a genuine issue of material fact. Id.; Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine

issue of material fact, the nonmoving party must go beyond the pleadings and identify facts

Page 12 - OPINION AND ORDER

which show a genuine issue for trial.

Celotex, 477 U.S. at 324.

"Sununary judgment is

inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could
return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d
1201, 1207 (9th Cir. 2008).
DISCUSSION

I.

Prec/usive Effect of the DPSST Revocation Proceeding

Issue preclusion is at the heart of defendants' motion to dismiss. Defendants argue that
DPSST's revocation decision precludes plaintiff from litigating why she was fired, because
DPSST already decided she was fired for dishonesty. I agree that defendants' motivation for
terminating plaintiff is at issue in all plaintiffs claims except her due process claim.
Accordingly, I begin by asking what preclusive effect, if any, attaches to the DPSST decision. 3
DPSST's decision to revoke plaintiffs telecommunications licensed was affirmed
without opinion by the Oregon Court of Appeals. That affirmance, even though it included no
reasoning, transforms the revocation into a "state couti reviewed administrative dete1mination"
entitled to preclusive effect under 28 U.S.C. § 1738. Eilrich v. Remas, 839 F.2d 630, 632 (9th
Cir. 1988). That statute gives both claim and issue preclusive effect to judgments of state comis.
Kremer v. Chem. Const. C01p., 456 U.S. 461, 478 (1982).

3

In their reply brief, defendants take issue with the way plaintiff made her arguments
regarding preclusion. Rather than including a section on preclusion on her response to the
motion for summary judgment, plaintiff incorporated by reference the arguments she made in her
brief opposing defendants' motion to file an amended answer. Defendants contend this
argument-by-incorporation violates the Local Rules, which impose a thirty-five page limit on
briefs unless the Court grants leave to file excess pages. I agree that plaintiffs counsel violated
the spirit, if not the letter, of Local Rule 7-2(b) when he imported an additional seventeen pages
into their already full-length response brief. Although I have discretion to sanction that behavior
by declining to consider the arguments in the incorporated brief, I decline to do so here. See
Devere!! v. Rex, 2017 WL 3319382, *15 n.5 (D. Or. July 12, 2017). Instead, I remind plaintiffs
counsel of the importance of complying with local rules, including page limits, in the future.
Page 13 - OPINION AND ORDER

Plaintiff first argues that administrative agency decisions have no preclusive effect on
Title VII claims. That is a conect statement of the law for unreviewed agency decisions. Univ.

of Tenn. v. Elliott, 478 U.S. 788, 796 (1986). But, as explained above, the DP SST decision is
now a reviewed agency decision subject to the preclusion rules of § 1738. In Kremer, the
Supreme Court expressly held that§ 1738 applies to Title VII claims. 456 U.S. at 469.
Plaintiff also asse1ts that preclusion is inappropriate because the Oregon Court of Appeals
employs an extremely deferential standard of review in agency appeals. Specifically, when
reviewing agency action such as licensure revocation, the court decides only (1) whether the
agency committed any legal errors and (2) whether the decision is supported by substantial
evidence. See Heller v. Ebb Auto Co., 774 P.2d 1089, 1092 (Or. 1989) (citing Or. Rev. Stat. §
183.482). Accordingly, the Oregon Court of Appeals did not actually decide whether plaintiff
was dishonest or whether she was fired for cause; it merely decided that the record contained
substantial evidence to support a finding of dishonesty.

Plaintiff contends that § 1738's

preclusion principles apply only to factual findings essential to the holding of the decision of the
Court of Appeals.
In Kremer, Justice Blackmun contended that no preclusive effect should attach to the
state agency decision because the reviewing state comt, affirming the agency's decision pursuant
to a standard of review quite similar to the one the Oregon court used here, "made no finding one
way or another concerning the merits" of the petitioner's discrimination claim. 456 U.S. at 491
(Blackmun, J., dissenting) (emphasis in original). Justices Brennan and Marshall joined Justice
Blackman's dissent.

However, the Kremer majority squarely rejected Justice Blackmun's

argument, holding that the scope of the state comt's review doesn't matter for preclusion
purposes because "[i]t is well established that judicial affirmance of an administrative

Page 14- OPINION AND ORDER

detennination is entitled to preclusive effect" and "[t]here is no requirement that judicial review
must proceed de novo if it is to be preclusive." Id. at 480 & n.21. In other words, the Supreme
Court expressly rejected the argument plaintiff advances here.

I am bound to follow the

Supreme Court and therefore must reject plaintiffs argument. DPSST's revocation decision has
issue preclusive effect in this action.
In evaluating the extent of that preclusive effect, federal courts look to state law
preclusion principles. Thornton v. City of St. Helens, 425 F.3d 1158, 1165 (9th Cir. 2005). In
Oregon, issue preclusion attaches when
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 pmiy sought to be precluded has had a full and fair opportunity to be heard
on the issue.
4. The pmiy sought to be precluded was a party or was in privily with a pmiy to
the prior proceeding.
5. The prior proceeding was the type of proceeding to which this court will give
preclusive effect.
Id. (citing Nelson v. Emerald People's Util. Dist., 862 P.2d 1293, 1296-97 (Or. 1993)); see also
Eagle-Air Estates Homeowners Ass'n, Inc. ex rel. Harp v. Haphey, 354 P.3d 766, 771-72 (Or.
Ct. App. 2015). The patiy asse1iing issue preclusion bears the burden of proof on the first,
second, and fourth elements; if that party carries its burden, then the burden shifts to the party
against whom preclusion is asserted to show that the third and fifth elements are not met. EagleAir Estates, 354 P.3d at 772.
Here, the fourth factor is satisfied because plaintiff was a party to the DPSST proceeding
and appeal. The fifth factor is also satisfied, because Oregon comis give preclusive effect to

Page 15 - OPINION AND ORDER

agency decisions. Wash. Cty. Police Officers Ass 'n v. Wash. Cty., 900 P.2d 483, 487-88 (Or.
1995). That leaves the first, second, and third factors.
The first factor is satisfied because the issues DPS ST decided are identical to some of the
issues in this lawsuit. DPSST found that plaintiff was dishonest about the timing of the Crolly
incident and the way she learned about the MDC message.

Based on those findings of

dishonesty, DPSST concluded plaintiff was fired for cause within the meaning of Or. Admin. R.
259-008-0070(3).

In this lawsuit, defendants deny firing plaintiff for whistleblowing, for

exercising her free speech rights, for being a woman, for reporting sexual harassment, or for
invoking her right to have a union representative present when she answered questions; they
assert they fired her for dishonesty. Accordingly, whether plaintiff was in fact dishonest is at
issue in this case.
The second and third factors are satisfied as well. Regarding the second factor, plaintiffs
dishonesty was the central question in the DPSST hearing. The findings of dishonesty were
essential both to the DPSST' s decision to revoke plaintiffs license and to the Court of Appeals'
affirmance. As for the third factor, plaintiff participated in a contested case hearing at which a
neutral administrative law judge heard evidence. Both pmiies were represented by attorneys.
Witnesses were examined and cross-examined. Plaintiff availed herself of judicial review. It is
easy to understand why plaintiff finds it unfair that DPS ST rejected the recommendation of the
administrative law judge and found against her. But DPSST's determination that the weight of
the evidence was against plaintiff does not mean that plaintiff was deprived of a full and fair
opportunity to be heard.
Issue preclusive effect attaches to DPSST's factual findings. Plaintiff is therefore baned
from relitigating, in this proceeding, the factual questions whether she was dishonest when she

Page 16 - OPINION AND ORDER

reported that Crolly entered the dispatch office while communications officers were still on the
phone with the ban-icaded suspect and whether she told Charboneau that another dispatcher
informed her about the MDC message.
But contrary to defendants' argument, issue preclusion does not require dismissal of
plaintiffs claims. 4 It certainly would have helped plaintiff to be able to argue to the jury that she
was not, in fact, dishonest; showing an employer's proffered legitimate reason for termination to
be false is powerful evidence of pretext. But plaintiff has other ways to prevail. For example,
she can succeed on her claims using a "mixed motives" theory, which applies when "both
legitimate and illegitimate reasons motivated the [employer's] decision." See Desert Palace,
Inc. v. Costa, 539 U.S. 90, 93 (2003) (Title VII); see also Nft. Healthy City Sch Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274 (1977) (First Amendment retaliation); Vil!. of Arlington Heights v.
1Vfetro. Housing Dev. Corp., 429 U.S. 252, 270 & n.21 (1977) (equal protection); Seitz v. State
By and Through Albina Human Resources Ctr., 788 P.2d 1004, 1010 (Or. Ct. App. 1990) (state

law claims).

Alternatively, she can prevail on her claims by convincing the jury that the

"legitimate reasons offered by the defendant were not its true reasons, but were a pretext for
discrimination." See Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1043 (9th Cir.
2005) (Title VII); see also Ant/wine v. N. Centr. Counties Consortium, 605 F.3d 740, 750 (9th
Cir. 2010) (First Amendment retaliation); Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d
741, 755 (9th Cir. 2001) (equal protection); Kemp v. Masterbrand Cabinets, Inc., 307 P.3d 491,
494 (Or. Ct. App. 2013) (state law claims).
Here, plaintiffs theory is that after she brought her complaints to management,
defendants aggressively searched for a reason to fire her. She contends that, even accepting
4

The parties agree that neither the DPSST decision nor the Oregon Court of Appeals'
affomance has any effect on plaintiffs due process claims.
Page 17 - OPINION AND ORDER

DPSST's factual findings, termination was a disproportionate punishment for minor incidents of
dishonesty and that she was punished more severely than another employee accused of the same
conduct would have been.
There is more than enough evidence in the summary judgment record to permit plaintiff
to proceed on a mixed motives theory or a pretext theory. See A1ustafa v. Clark Cty. Sch. Dist.,
157 F.3d 1169, 1180 (9th Cir. 1998) ("The crux of disparate treatment claims is the elusive
factual question of intentional discrimination. Therefore, because of the inherently factual nature
of the inquiry, the plaintiff need produce ve1y little evidence of discriminatory motive to raise a
genuine issue of fact." (citations and internal quotation marks omitted)). The record contains
evidence from which a reasonable factfinder could conclude that some City employees were
angry that plaintiff had made complaints to HR; that, after plaintiff reported misconduct to HR
and sent the anonymous letter, she was labeled a problem employee and department staff were
directed to "document, document, document" any problems with her; that this "problem
employee" designation came after seven years of employment without disciplinary incident and
at least one perfornmnce review stating that her ability to work with her coworkers met
expectations; that other employees within the department were not terminated despite
committing far more serious violations of departmental policy; that, having found one incident of
dishonesty, Acting Chief Lewis combed her personnel file for another example to bolster his
case for firing her; that the department engaged in no progressive discipline and moved straight
to termination; and that plaintiff was fired for relatively minor dishonesty regarding collateral
issues.
Defendants argue that DPSST's finding that plaintiff was terminated for cause precludes
her from relitigating the question of employer motivation. But DPSST was not charged with

Page 18 - OPINION AND ORDER

deciding employer motivation; indeed, it lacks jurisdiction to decide that question. In Huesties v.
Bd. ofPolice Standards & Training, 767 P.2d 465, 466 (Or. Ct. App. 1989), a case involving the
predecessor agency to DPSST, the petitioner sought review of an agency order revoking his
basic and intermediate police ce1tificates.

Id.

The agency had found that the petitioner

committed two acts of dishonesty: misrepresenting his educational status on his employment
applications and removing and copying a confidential tape from the police chiefs desk. Id. The
agency found those acts constituted "gross misconduct" and that the petitioner had been fired for
cause within the meaning of the applicable regulation. Id. On appeal, the petitioner argued that
the discharge was invalid because it was retaliatory; the agency responded that "it was not
required to consider the validity of other aspects" of the employment decision and contended its
review was confined to dete1mining whether the factual record revealed "sufficient grounds" to
terminate for cause. Id. The Court of Appeals agreed with the agency, holding that the agency
lacked authority "to review the discharge to determine any question except the presence or
absence of cause." Id. at 467.
The Court of Appeals has affirmed Huesties' application to decisions of the DPSST.
Lucke v. Dep't of Pub. Safety Standards and Training, 270 P.3d 251, 254-55 (Or. Ct. App.
2012). In Lucke, the court expressly acknowledged that even when DPSST has determined an
employee was terminated "for cause," there may still be a question of material fact regarding the
basis for the termination. See id. at 255. Viewing the DPSST's final order in light of Huesties
and Lucke, the statement that plaintiff was terminated "for cause" cannot be given preclusive
effect as to defendants' actual or sole motivation.
None of this is to say that issue preclusion has no effect here. At trial, defendants will be
entitled to an issue preclusion jury instruction regarding the dishonest statements. See Nelson,

Page 19 - OPINION AND ORDER

862 P.2d at 1295 (approving use of a preclusion instruction when the elements of issue
preclusion are met). Plaintiff therefore will have to convince the jury that even though she was
dishonest, defendants decided to fire her-at least in part-for some other, impe1missible reason.
But although preclusion will make it more difficult for plaintiff to succeed at trial, it is not fatal
to plaintiffs' claims; there is sufficient evidence of mixed motives and pretext to permit plaintiff
to proceed to trial.
II.

Claims Under § 1983
Plaintiff asserts her constitutional claims against all defendants. Both municipal entities

and their individual employees may qualify as "person[s]" acting "under color of" state law
under 42 U.S.C. § 1983. Pursuant to that statute, however, a municipality is not vicariously
liable for the acts of its employees. }vfonell v. Dep't of Soc. Servs. of NY., 436 U.S. 658, 694
(1978). Rather, a plaintiff seeking to hold the municipal entity liable must show either (1) that
the violation of constitutional rights was carried out pursuant to official policy or longstanding
custom or (2) that the violation of constitutional rights was committed by someone with the
authority to make final policy for the municipality. Lytle v. Carl, 382 F.3d 978, 982 (9th Cir.
2004 ). Plaintiffs claims against the City fall under the second category and are predicated on
the assertion that the decisions of Grimaldi, as City Manager, and Lewis, as Acting Chief of
Police, "may fairly be said to represent official policy" of the City. Monell, 436 U.S. at 694.
Defendants do not challenge that assertion in their motion for summary judgment. Accordingly,
for the purposes of resolving this motion, I assume that both individual defendants had sufficient
policymaking authority to subject the City to liability for their actions under§ 1983.

Page 20 - OPINION AND ORDER

A.

Due Process Claim

Defendants argue that they are entitled to summary judgment on plaintiffs due process
claim because the termination process they provided her was constitutionally adequate. To
prevail on a procedural due process claim, a plaintiff must demonstrate "(1) a deprivation of a
constitutionally protected liberty or property interest, and (2) a denial of adequate procedural
protections." iVJcQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002). The patties agree that,
as a public employee, plaintiff had a protected property interest in her job. As such, she was
entitled to "oral or written notice of the charges against h[er], an explanation of the employer's
evidence, and oppo1tunity to present h[er] side of the story." Id. This opportunity to be heard
must be "meaningful."

Washington v. Hmper, 494 U.S. 210, 235 (1990).

Even when an

employee is given the chance to argue her case, due process is not satisfied if the hearing is
infected by bias or ifthe "actual decision is made before the hearing[.]" Id. To make out a claim
of bias, a plaintiff must "overcome a presumption of honesty and integrity" on the pmt of the
decision-makers. Withrow v. Larkin, 421 U.S. 35, 47 (1975). A plaintiff may show bias by
demonstrating that the proceedings and sunounding circumstances demonstrate actual bias on
the part of the decisionmaker. Taylor v. Hayes, 418 U.S. 488, 501-04 (1974).
Plaintiff contends that defendants' termination procedures violated her right to due
process because both Acting Chief Lewis, who made the te1mination decision, and Grimaldi,
who upheld that decision, were biased. Acting Chief Lewis presents an easy case: Dave Lewis
was the subject of some of plaintiffs complaints to HR; Umenhofer testified that Dave Lewis
was "livid," said plaintiff "should be shot," and called plaintiff offensive names when he found
out about the complaints; there is evidence Acting Chief Lewis's relationship with his brother
was a problem in tenns of his ability to discharge his responsibilities in an evenhanded manner;

Page 21 - OPINION AND ORDER

there is evidence that Acting Chief Lewis and his brother were close, g1vmg rise to the
reasonable inference that Acting Chief Lewis knew how his brother felt about plaintiff; and there
is evidence Acting Chief Lewis acted to protect the subject of one of plaintiffs complaints
despite many officers' beliefs that the person was dangerous and posed a risk to the public and
other officers. A jury could conclude from this evidence that Acting Chief Lewis was biased
against plaintiff when he made the termination decision.
The harder case is Grimaldi, because "the failure to provide an impartial decisiomnaker at
the pretermination stage, of itself, does not create liability" so long as the final decisiomnaker is
impartial. Walker v. City of Berkeley,.951 F.2d 182, 184 (9th Cir. 1991). There is insufficient
evidence in the record to supp01t a conclusion that Grimaldi harbored any personal bias toward
plaintiff; indeed, it is not clear from the record that he knew who she was before reviewing her
file.

But there is sufficient evidence to suppo1t a finding that Grimaldi did not make an

independent decision and merely ratified Acting Chief Lewis's recommendation. See id. at 184
(approving a jury instruction asking whether the City Manager, though the nominal
decisiomnaker, had actually made an independent termination decision).
Grimaldi directed a member of the HR staff to draft his memo denying plaintiffs
gnevance.

Because there is evidence from which a jury could conclude that Utecht was

intentionally targeting plaintiff and helping to cover up depatimental misconduct, the
involvement of HR raises red flags regarding the independence of Grimaldi's decision. There is
also evidence that Grimaldi did not always thoroughly investigate reports of misconduct. After
the anonymous letter was delivered to the City, Grimaldi did not direct an investigation into the
allegations against then-Chief Smith. That evidence could support an inference that Grimaldi
was inclined to look the other way with respect to police misconduct, leading him to give short

Page 22 - OPINION AND ORDER

shrift to plaintiffs allegation that she was being fired in retaliation for rep01iing such
misconduct.

In sum, there is a question of material fact as to whether bias infected plaintiffs

entire termination process. Cf Stivers v. Pierce, 71 F.3d 732, 746-48 (9th Cir. 1995) (denying
summary judgment on a due process claim because the evidence arguably showed that the bias
of one decisionmaker influenced the unbiased decisionmakers, rendering the entire process
unfair).
Nonetheless, the evidence of bias here cannot save plaintiffs due process claim. As
noted above, bias early in the decisionmaking process can be cured ifthe decision is reviewed by
an impartial decisionmaker. The Collective Bargaining Agreement ("CBA") between plaintiffs
union and the City sets out a four-step grievance process, with binding arbitration as the fomih
and final step. Even assuming the evidence is strong enough to show that Acting Chief Lewis's
bias infected the decisionmaking process tln·ough step tln·ee, Grimaldi's decision, there is no
evidence in the sunnnary judgment record suggesting that the arbitrator would have been
influenced by Acting Chief Lewis's bias or would have simply "rubber stamped" the termination
decision. Accordingly, plaintiff was afforded all the process due because she had access to
another layer of review that could have cured any bias in the decisionmaking process. See
Armstrong v. lvleyers, 964 F.2d 948, 951 (9th Cir. 1992) (holding that grievance/arbitration

procedures similar to those afforded by the CBA in this case satisfy the requirements of due
process even when the grievance does not proceed to arbitration).
The union, not plaintiff, elected not to take the grievance to arbitration. But that does not
change the analysis. The fundamental requirement of due process is the opportunity to be heard,
not an actual hearing. lvfathews v. Eldridge, 424 U.S. 319, 349 (1976). When a union decides
not to pursue a grievance further, there is no due process violation because it is not the employer

Page 23 - OPINION AND ORDER

who has cut off the opportunity for a hearing. An employee who disagrees with the union's
decision to abandon her grievance may sue the union for breach of the duty of fair
representation, but, because the union is not a state actor, its decision cannot render the process
constitutionally inadequate. See Armstrong, 964 F.2d at 950. All defendants are entitled to

summary judgment on plaintiffs due process claim.
B.

First Amendment Claim

To state a claim for First Amendment retaliation, a public employee must show that she
spoke as a private citizen on a matter of public concern and that her speech was a substantial or
motivating factor in the adverse employment action. Eng v. Cooley, 552 F.3d 1062, 1070 (9th
Cir. 2009). If a plaintiff proves these elements, the burden shifts to the public employer to show
that it had adequate justification for restricting speech and would have terminated the employee
even in the absence of protected speech. Id. at 1071-72. Defendants argue that they are entitled
to summary judgment on plaintiffs First Amendment claim because she did not speak on a
matter of public concern, she did not speak as a private citizen, and there is insufficient evidence
of causation and/or pretext.
The Ninth Circuit recently expounded on the meaning of matter of public concern:
Whether an employee's speech addresses a matter of public concern must be
dete1mined by the content, form, and context of a given statement, as revealed by
the whole record. If employee expression relates to an issue of political, social, or
other concern to the community, it may fairly be said to be of public concern.
However, an employee's motivation is relevant to the public-concern inquiry. We
have framed that inquiry with two questions: Why did the employee speak (as best
as we can tell)? Does the speech seek to bring to light actual or potential
wrongdoing or breach of public trust, or is it animated instead by dissatisfaction
with one's employment situation?

Page 24 - OPINION AND ORDER

Turner v. City & Cty. of San Francisco, 788 F.3d 1206, 1210 (9th Cir. 2015). Whether an

employee's speech was on a matter of public concern is a question of law. Eng, 552 F.3d at
1070.
In Turner, the couti considered a temporary employee's complaints about the San
Francisco Department of Public Works' purported use of temporary exempt employees in
violation of civil service rules. 788 F.3d at 1209. The court acknowledged that the employee's
complaints, which involved labor practices, were "potentially significant in their implications[.]"

Id. at 1211. Nonetheless, the court held the speech was not a matter of public concern. The
coutt found it significant that the employee had voiced his grievances only internally, rather than
taking them to the press or the city's Board of Supervisors. Id. at 1210. In context, the court
detennined the speech arose "primarily out of concerns for [the plaintiffs] own professional
advancement, and his dissatisfaction with his status as a temporary employee." Id. at 1211.
Having carefully reviewed the summary judgment record and drawing all reasonable
inferences in plaintiffs favor, I find that plaintiffs speech was on a matter of public concern. To
be sure, her complaints addressed, in patt, her personal objection to the way she had been treated
by Springfield Police Department employees. But she also raised systemic issues. Standing
alone, her complaints about officers yelling at dispatchers in the dispatch office likely do not rise
to the level of public concern because they deal primarily with interactions between departmental
employees. But plaintiff asserts she also brought to light allegations of sexual misconduct and
favoritism at the highest levels of the department.

She also introduced evidence that she

complained about officers violating suspects' constitutional rights.

Those allegations

unquestionably relate to matters of public concern; moreover, plaintiff expressly connected those
problems to staffing, public safety, and misuse of funds.

Page 25 - OPINION AND ORDER

Defendants deny that plaintiff ever raised the concems about widespread misconduct to
HR, but, on a motion for summary judgment, I am bound to construe the record in plaintiffs
favor. Furthe1more, there are undisputed facts in the record that tend to support plaintiffs story;
for example, it is unclear why Utecht brought former Chief Smith to her second meeting with
plaintiff, except as a way to send plaintiff a message that she should keep her mouth shut. The
anonymous letter is fmiher proof of plaintiffs motivation, assuming she can prove she wrote it.
If plaintiff had been interested only in resolving personal disputes and protecting her own

position, it is unlikely she would have sent the letter at all, much less anonymously.
Defendants next argue that plaintiff spoke in her capacity as a City employee, rather than
as a private citizen. "Statements are in the speaker's capacity as a citizen if the speaker had no
official duty to make the questioned statements, or of the speech was not the product of
perfo1ming the tasks the employee was paid to perfo1m." Eng, 552 F.3d at 1071 (citations and
internal quotation marks omitted). Whether an employee spoke as a private citizen rather than as
a public employee is a mixed question oflaw and fact. Johnson v. Poway Unified Sch. Dist., 658
F.3d 954, 967 (9th Cir. 2011 ). A comi must first make a factual dete1mination as to the "scope
and content of a plaintiffs job responsibilities." Id. (citation and internal quotation marks
omitted). Then, the comi determines "the ultimate constitutional significance of those facts ...
as a matter of law." Id. (citation and internal quotation marks omitted). If plaintiffs speech
"owes its existence" to her status as a public employee, then the inquiry is at an end. Id.
Defendants argue that plaintiffs speech was the product of performing the tasks she was
hired to perform because she only witnessed and learned about the improper conduct because she
was a public employee. That argument misstates the test; indeed, if courts applied the rule as
stated by defendants, a public employee's report of official misconduct would never be protected

Page 26 - OPINION AND ORDER

speech so long as she learned about the misconduct in the course of doing her job. Clearly, that
is not the law. See, e.g., Freitag v. Ayers, 468 F.3d 528, 545 (9th Cir. 2006) (prison guard spoke
as a private citizen when she repo1ted sexual abuse she and other female corrections officers
suffered at work). The question is not how the plaintiff learned about the subject of the speech,
but whether the speech was a required part of plaintiffs job.

Nothing in plaintiffs job

description suggests that reporting sexual and financial misconduct of police officers, much less
the Chief of Police, was a task she was paid to perform.
In Hagen v. City of Eugene, 736 F.3d 1251, 1260 (9th Cir. 2013), the Ninth Circuit
vacated a jury verdict and directed judgment for the defendant employer on a First Amendment
retaliation claim. The court found that the plaintiff police officer, who had expressed concerns
about officers and training "within the chain of command" and pursuant to his duties under the
police department's policy and procedures manual, spoke as a public employee and not as a
private citizen. kl at 1259. This case is distinguishable from Hagen in several important
respects. First, in Hagen, the defendant introduced as evidence a city manual which required
employees to repmt "unsafe practices of fellow employees[.]" Id. (emphasis omitted). Here, by
contrast, defendants have not introduced any evidence that reporting safety issues fell under
plaintiffs responsibilities as a dispatcher.

Second, in Hagen, the court found it significant

(though not dispositive) that the plaintiff had made all his complaints internally; the court
expressly contrasted the facts in Hagen with a case in which the employee both raised concerns
internally and leaked those concerns to the local newspaper. See id. (citing Andrew v. Clark, 561
F.3d 261, 266-67 (4th Cir. 2009)). Here, as explained, a jury could conclude that plaintiff made
her concerns known to the press, the state agency that licenses peace officers, and the Oregon
State Police.

Based on the evidence in the summary judgment record, I am compelled to

Page 27 - OPINION AND ORDER

conclude that, with respect to the allegations of sexual misconduct and financial
mismanagement, plaintiff spoke as a private citizen and not as a public employee.
Because it is undisputed that dishonesty is a legitimate reason to terminate an employee,
that leaves causation and pretext.

As explained in the section of this opinion addressing

preclusion, although there is ample evidence from which a jury could conclude plaintiff was
fired because she was dishonest, there is also substantial evidence suggesting that plaintiff was
also fired in retaliation for her complaints or that dishonesty was a pretext intended to cover a
retaliatory termination.

Of patticular note is the fact that plaintiff was terminated for two

relatively minor incidents of dishonesty without progressive discipline, despite having a spotless
personnel record.
Regarding Acting Chief Lewis specifically, I divide the evidence into two categories:
evidence that suppo1ts the inference that Acting Chief Lewis retaliated against plaintiff to protect
his brother (which, by itself, is insufficient to support a First Amendment claim), and evidence
that supp01ts the inference that Acting Chief Lewis retaliated against plaintiff for exercising her
protected constitutional rights (which could sustain a First Amendment claim). There is ample
evidence in the first category. From the summary judgment record, a jury could find it was
widely known within the police department that plaintiff had complained to HR; Acting Chief
Lewis's brother, the subject of some of plaintiffs allegations, was angry with plaintiff and
wanted her punished; Acting Chief Lewis knew from the records of plaintiffs complaints to HR
that she had accused Dave Lewis of being rude, intimidating, and sexist; and Acting Chief Lewis
combed through plaintiffs file to find a second instance of dishonesty to bolster the termination
decision.

Page 28 - OPINION AND ORDER

But proof of retaliatory motive alone is insufficient. In order to proceed on her First
Amendment claim, there must be sufficient evidence of a causal link between plaintiffs
protected speech (the complaints about sexual misconduct and financial mismanagement that

plaintiff made to Utecht and documented in the anonymous letter) and her termination. Here, the
evidence is weaker but nonetheless sufficient to withstand a motion for summary judgment.
Plaintiff testified that she made the more serious allegations directly and privately to Utecht. A
jury could conclude from the summary judgment record that Utecht, having heard plaintiffs
complaints about serious misconduct in the depaitment, took steps to sweep those complaints
under the rug by making plaintiff a target for disciplinary action. The strongest evidence for that
conclusion includes Umenhofer's testimony about Utecht's identification of plaintiff as a
problem employee; Utecht' s directive to "document, document, document" plaintiffs
transgressions; and the fact that Utecht brought Former Chief Smith to the follow-up meeting
with plaintiff, giving rise to the plausible inference that she was attempting to intimidate plaintiff
into silence. 5 That evidence, combined with Acting Chief Lewis's arguably disproportionate
response to plaintiffs dishonesty and the evidence that Acting Chief Lewis and Utecht worked
together during the dishonesty investigation, is enough to suppmi the inference that Utecht told
Acting Chief Lewis about plaintiffs protected speech on a matter of public concern. In sum, a
jury could conclude that Acting Chief Lewis knew about all of plaintiffs misconduct reports and
retaliated by deliberately seeking out evidence that he could use as a pretext for firing her.

5

It is not enough, standing along, for the evidence to support the inference that Utecht
targeted plaintiff in an attempt to hush up complaints of sexual misconduct. Utecht is not named
as a defendant and allegations regarding only her actions cannot suppmt a claim against the City
because there is no evidence she possesses final policymaking authority. See }1fonell, 436 U.S. at
690-95 (1978) (explaining when a municipality may be held liable for its employees' conduct
under § 1983).

Page 29 - OPINION AND ORDER

The evidence of causation is insufficient, however, as to Grimaldi.

It is clear that

Grimaldi knew about plaintiffs complaints regarding officers' treatment of dispatchers; as
explained, however, those statements alone do not rise to the level of statements on matters of
public concern, so they are unprotected. And there is insufficient evidence in the summary
judgment record to suppo1t the inference that Grimaldi knew about plaintiffs statements on
matters of public concern. The allegations of high-level misconduct do not appear in the records
related to the investigation of plaintiff for dishonesty, and she does not refer with any specificity
to the content of her misconduct complaints in her appeal letters. Giimaldi knew about the letter
to the newspaper, of course, but there is no evidence that he connected that letter to plaintiff.
Plaintiff argues that because of the timing of the anonymous letter, Grimaldi should have known
or at least suspected that plaintiff was the author. But there is no evidence Grimaldi even knew
who plaintiff was at the time the letter was received; Utecht and Acting Chief Lewis may have
connected those dots, but there is insufficient evidence to suppo1t the conclusion that Grimaldi
did. Because there is insufficient evidence that Grimaldi knew about plaintiffs statements on
matters of public concern, her First Amendment claim against him fails for lack of causation.
Defendants argue that even if plaintiffs First Amendment claim survives summary
judgment, Acting Chief Lewis is entitled to summary judgment on the grounds of qualified
immunity. "The doctrine of qualified immunity protects government officials from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known." Pearson v. Callahan,
555 U.S. 223, 231 (2009) (internal quotation marks omitted). In deciding whether a defendant is
protected by qualified immunity, courts ask two questions: "whether the facts that a plaintiff has
alleged or shown make out a violation of a constitutional right" and "whether the right at issue

Page 30 - OPINION AND ORDER

was clearly established at the time of the defendant's alleged misconduct." Id. at 232 (citations
and quotation marks omitted). As explained above, the summary judgment record here could
support a finding that Acting Chief Lewis fired plaintiff in retaliation for speaking out on a
matter of public concern in violation of her First Amendment rights. Therefore, the question is
whether Acting Chief Lewis's conduct violated clearly established law.
At the time of plaintiffs termination, it was clearly established that repmiing "high level
corruption in a governmental agency" is speech on a matter of public concern.

Dahlia v.

Rodriguez, 735 F.3d 1060, 1067-68 (9th Cir. 2013) (citing Marable v. Nitchman, 511F.3d924,

932 (9th Cir. 2007)). Plaintiff reported classic examples of governmental corruption: sexual
impropriety, favoritism, misuse of fonds, and staffing decisions that endanger the public. Any
reasonable officer would have known that the complaints plaintiff asserts she made to Utecht and
in the anonymous letter qualified as statements on matters of public concern. Moreover, based
on the evidence in the summary judgment record, no reasonable supervising officer could have
believed plaintiff was required to repo1i that sort of misconduct pursuant to her official job
duties. Acting Chief Lewis is not entitled to qualified immunity.
Defendants' motion for summary judgment on plaintiffs First Amendment claim is
granted as to Grimaldi but denied as to Acting Chief Lewis and the City.
C.

Equal Protection Claim

In support of her equal protection claim, plaintiff argues that defendants were
predisposed to believe the men she accused rather than her because she is a woman. There is
insufficient evidence to permit plaintiff proceed on this theory. It is true that, in two separate
investigations regarding her dishonesty, defendants decided plaintiff had been untruthfol and
instead believed men who presented a different version of events. But that is insufficient to

Page 31 - OPINION AND ORDER

show that she was not believed on account of her gender. She has introduced no direct or
circumstantial evidence that defendants, as a matter of course, credit the statements of men and
discredit the statements of women. There is evidence that Dave Lewis made a sexist remark to
her about baking cookies, but "isolated incidents (unless extremely serious)" are insufficient to
suppo1t a claim of gender discrimination. Cf Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th
Cir. 2008) (discussing proof of hostile work environment in the Title VII context).
Plaintiff also alleges that she was discriminated against on the basis of gender because
her termination was in retaliation for repo1ting sexual harassment.

The Ninth Circuit has

recognized that retaliation for reporting sexual harassment may violate the Equal Protection
Clause.

Alaska v. E.E.O.C., 564 F.3d 1062, 1069 (9th Cir. 2009).

Specifically, when an

employer responds to a sexual harassment complaint by punishing the person who made the
repo1t rather than by disciplining the harasser, the employer violates the Equal Protection Clause.
Id.

As explained in detail in Section III of this opm10n, infi·a, plaintiff has introduced
sufficient evidence that she reported conduct that amounted to sexual harassment and that she
was targeted for discipline as a result of making those reports. In addition, there is ample
evidence that Acting Chief Lewis searched for a pretext to fire plaintiff in retaliation for
complaining. For the same reasons set out in Section ILB, supra, the evidence that Acting Chief
Lewis retaliated against plaintiff for reporting sexual misconduct is weaker than the evidence
that he had a vendetta against her because she made his brother angry. But the evidence is still
sufficient to survive summary judgment. At this stage, I conclude only that there is evidence in
the summary judgment record that could supp01t the inference that Acting Chief Lewis knew
about the sexual misconduct complaints and made the decision to fire plaintiff at least partially

Page 32 - OPINION AND ORDER

because of those complaints. It is for the jury to decide whether Acting Chief Lewis actually
knew about the complaints and, if so, whether he was driven to retaliate against plaintiff in an
attempt to punish her for bringing sexual misconduct to light.
With respect to Grimaldi, however, there is once again insufficient evidence to permit
plaintiffs claim to proceed. As explained in Section 11.B, supra, there is insufficient evidence to
support the inference that Grimaldi knew plaintiff had complained about sexual misconduct
when he upheld Lewis's termination decision. As a result, Grimaldi is entitled to summary
judgment on plaintiffs equal protection claim.
Finally, defendants assert that qualified immunity shields Acting Chief Lewis from
liability on plaintiffs equal protection claim. But at the time of plaintiffs tem1ination, no
reasonable supervisor could have believed that retaliation in response to an employee's repo1t of
widespread sexual misconduct is constitutional. See Alaska, 564 F.3d at 1069. Acting Chief
Lewis is not entitled to qualified immunity. Defendants' motion for summary judgment on
plaintiffs Equal Protection Claim is granted as to Grimaldi but denied as to Acting Chief Lewis
and the City.
III.

Title VII Claim

Defendants next move for summary judgment on plaintiffs claim that the City violated
her rights under Title VII of the Civil Rights Act. 6 Title VII makes it an unlawful employment
practice for an employer to discriminate against an employee "because he has opposed any
practice made an unlawful employment practice by this subchapter, or because he has made a

6

Plaintiff pleaded a Title VII claim against the individual defendants as well. I
previously dismissed the claims against Grimaldi and Lewis because Title VII creates a cause of
action against the entity only, not against individual supervisors. See Nichol, 2016 WL 3512071,
*4 (D. Or. Jun. 27, 2016) (citing Craig v. M & 0 Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir.
2007)).
Page 33 - OPINION AND ORDER

charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Title VII does not expressly make
sexual harassment an unlawful employment practice. However, it does prohibit discrimination in
employment "because of' a number of protected characteristics, including "sex." Id. § 2000e2(a)(l). In the landmark case lvferitor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986), the
Supreme Comt held that sexual harassment in the foim of a "hostile or abusive work
environment" may suppo11 a Title VII claim. An employee asserting a retaliation claim under
Title VII need not prove that the allegedly discriminatory practice actually violated Title VII; a
report of discrimination constitutes protected activity so long as a reasonable person would think
the behavior was prohibited by Title VII. E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951,
964 (9th Cir. 2009).
The Supreme Court recognizes two types of sexual harassment: quid pro quo harassment,
in which an employee's willingness to participate in sexual activity "is directly linked to the
grant or denial" of an economic benefit, Vinson, 477 U.S. at 65, and hostile work environment
harassment, in which individuals of a ce1tain gender are required to "run a gauntlet of sexual
abuse in return for the privilege of being allowed to work and make a living[,]" id. at 67.
Plaintiff asserts that she was punished for reporting a hostile work enviromnent. The Equal
Employment Opportunity Commission has issued guidance regarding when sexual misconduct
constitutes a hostile work environment. In the guidance, the EEOC explains that "Title VII does
not prohibit isolated instances of preferential treatment based upon consensual romantic
relationships."

EEOC Policy Guidance on Employer Liability under Title VII for Sexual

Favoritism, N-915.048 (Jan. 12, 1990) (internal quotation marks and punctuation omitted),
available at http://www.eeoc.gov/policy/docs/sexualfavor.html.

Page 34 - OPINION AND ORDER

Such occurrences may be

"unfair," but they do not run afoul of the statute because the favoritism, though rooted in a sexual
relationship, is not based on gender. Id. By contrast,
[i]f favoritism based on the granting of sexual favors is widespread in the
workplace, both male and female colleagues who do not welcome this conduct
can establish a hostile work environment in violation of Title VII regardless of
whether any objectionable conduct is directed at them and regardless of whether
those who were granted favorable treatment willingly bestowed the sexual favors.
In these circumstances, a message is implicitly conveyed that the managers view
women as "sexual playthings," thereby creating an atmosphere that is demeaning
to women. Both men and women who find this offensive can establish a violation
if the conduct is sufficiently severe or pervasive to alter the conditions of their
employment and create an abusive working environment.

Id.
Agency guidance, while perhaps not entitled to full Chevron deference, reflects "a body
of experience and informed judgment to which courts and litigants may look for guidance."
Federal Exp. Co111. v. Holowecki, 552 U.S. 389, 399 (2008) (internal quotation marks omitted).

The EEOC guidance is inconsistent with Ninth Circnit precedent to the extent it suggests that a
male employee may assert a hostile work environment claim due to discriminatory treatment of
women. See Patee v. Pac. Nw. Bell Tel., 803 F.2d 476, 478 (9th Cir. 1986). However, the
guidance has otherwise been cited with approval by numerous federal courts.

See, e.g.,

1vicGinnis v. Union Pac. R.R., 496 F.3d 868, 874 (8th Cir. 2007). I find its reasoning persuasive

and adopt it here.
Plaintiff has introduced evidence that she reported tln·ee different individuals for
sexually-based favoritism.

Construing the facts in the light most favorable to plaintiff, she

reported that former Chief Smith had engaged in a workplace affair, afforded favors to his
paramour, given special treatment to other officers in order to keep the affair secret, and
attempted to engage other women in sexual relationships; that Dave Lewis had inappropriate
sexual relationships with both coworkers and police informants; and that Captain Harrison

Page 35 - OPINION AND ORDER

engaged in workplace affairs including having sex in view of other employees in the workplace
gym. Plaintiff also introduced evidence that Dave Lewis made a sexist comment to her about
baking cookies and that a former employee was fired on trumped-up charges after reporting
sexual harassment. Taken together, this evidence creates a question of material fact regarding
whether plaintiff reported conduct that she reasonably believed amounted to a hostile work
environment. That conclusion is further bolstered by plaintiffs testimony that the officer who
sent the MDC message had asked her inappropriate questions about her dating life in the past.
Although she never repmted that conduct, it is "relevant to the inquiry concerning the reasonable
beliefthat a violation [of Title VII] occurred." Go Daddy Software, 581 F.3d at 964.
For the reasons set fo1th in the section addressing plaintiffs equal protection claim, there
is sufficient evidence of causation to put plaintiffs Title VII retaliation claim before a jury.
Moreover, unlike plaintiffs equal protection claim, her Title VII claim may proceed on a theory
of respondeat superior liability. i\Iiller v. lYJaxwell's Intern., Inc., 991 F.2d 583, 587 (9th Cir.
1993). This means that for Title VII, plaintiff is not required to prove that a final decisionmaker,
such as Acting Chief Lewis, retaliated against her for reporting sexual harassment. Even if the
jury were to find the evidence of causation insufficient as to Acting Chief Lewis, plaintiff could
prevail on the merits of her Title VII claim based on evidence that Utecht (or other City
employees) retaliated against her for reporting sexual misconduct. See Vance v. Ball State Univ.,
133 S. Ct. 2434, 2439 (2013) (holding that under Title VII, employers are generally liable for
negligent failure to control working conditions and are strictly liable for harassment by anyone
"empowered by the employer to take tangible employment actions against the victim").
Defendants' motion for summary judgment is denied with respect to plaintiffs claims under
Title VII.

Page 36 - OPINION AND ORDER

IV.

State Law Claims
Defendants also move for summary judgment on plaintiffs claims under state law. The

state law claims are all asse1ied against the City only and not against the individual defendants.
A.

Sexual Harassment Retaliation Claim

Plaintiff asse1is an employment discrimination claim under Or. Rev. Stat. §
659A.030(l)(f), which prohibits retaliating against an employee because that employee opposed
an unlawfol employment practice. Because Or. Rev. Stat. § 659A.030 "was modeled after Title
VII, plaintiffs state and federal gender discrimination claims can be analyzed together."
Dawson v. Entek Int'/, 630 F.3d 928, 935 (9th Cir. 2011) (quoting Dmvson v. Entek Int'!, 662 F.
Supp. 2d 1277, 1284 (D. Or. 2009)). For the same reasons outlined in the previous section
addressing plaintiffs Title VII claims, the City is not entitled to summary judgment on plaintiffs
state-law claim that the City retaliated against her for reporting sexual harassment.
B.

Whistleblower Claim

In addition to bringing a claim for First Amendment retaliation under § 1983, plaintiff
asserts a whistleblower retaliation claim under Or. Rev. Stat. § 659A.203, Oregon's public
employee whistleblower law. 7 The relevant statute makes it an unlawfol employment practice
for a public employer to
Prohibit any employee from disclosing, or take or threaten to take disciplinary
action against an employee for the disclosure of any inf01mation 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; [or]

7

The complaint also included a whistleblower retaliation claim under Or. Rev. Stat. §
659A.199. I previously dismissed that claim, holding that the Oregon Legislature did not intend
to make§ 659A.199 claims available to public employees. Nichol, 2016 WL 3512071 at *4.
Page 37 - OPINION AND ORDER

(B) Mismanagement, gross waste of funds or abuse of authority or substantial and
specific danger to public health and safety resulting from the action of the state,
agency or political subdivision[.]
Or. Rev. Stat. § 659A.203(b). Where the employee's disclosure involves mismanagement, the
statute only applies when the claim "involve[s] more than mere routine complaints regarding a
public employer's policies" and instead "relate[s] to serious misconduct that is of public concern
and that does or could undermine the employer's ability to perfom1 its mission." Hall v. Douglas
Cty., 203 P.3d 360, 363 (Or. Ct. App. 2009). Reports of wrongdoing to supervisors or HR

qualify as protected "disclosures" under the statute. Bjurstrom v. Or. LottelJ', 120 P.3d 1235,
1240 (Or. Ct. App. 2005). Plaintiff brings this claim against the City only, not against the
individual defendants.
Some of plaintiffs misconduct reports do not trigger the protections of the statute. For
example, plaintiffs complaint that an officer misused the MDC system is unprotected under state
law because the statute requires the complaint to relate to a legal violation or mismanagement
committed by "the state, agency or political subdivision[.]"

Or. Rev. Stat. § 659A.203(b).

Defendants argue that the one-time use of the MDC system to send a personal message cannot be
attributed to the police department. Plaintiff cites Hall v. Douglas County and Hall v. State, 366
P.3d 345 (Or. Ct. App. 2015) for the proposition that individual employees' actions can trigger
whistleblower protections under state law, but neither case is on point. To begin, the Oregon
Court of Appeals did not consider in either case whether the disclosed activity qualified as action
by the governmental entity. Moreover, both cases are distinguishable.

In Hall v. Douglas

County, the plaintiff had reported physical abuse by a coworker and alleged that his supervisor

and HR, though aware of the problem, took no action to c01Tect it. 203 P .3d at 363. That is a far
cry from reporting a one-time violation of departmental policy. And in Hall v. State, the cou1i

Page 38 - OPINION AND ORDER

analyzed claims brought under three different state whistleblowing statutes, one which was
§ 659A.203(b).

The other two statutes contain no requirement that the disclosure concern

governmental action. See Or. Rev. Stat. § 659A.199; id. § 659A.230. The comt analyzed the
three claims together without noting the presence or absence of a governmental action
requirement.
In the absence of case law addressing the issue, I must give effect to the "plain meaning
of the statute's text." State v. Gonzalez-Valenzuela, 365 P.3d 116, 12.1 (Or. 2015). Extending
§ 659A.230's protection to public employees' disclosures of the legal violations of their
coworkers would read the phrase "by the state, agency or political subdivision" out of the statute.
Individual employee misconduct may trigger the statute's protection when combined with a
supervisory failure to address the issue, but it falls outside the plain meaning of the statute when
it stands alone.
By contrast, plaintiffs reports of sexual misconduct, favoritism, and activity that
endangers public safety clearly qualify as "mismanagement" within the meaning of
§ 659A.203(b). See Douglas Cty., 203 P.3d at 363. Defendants contend plaintiff is baned from
supporting her§ 659A.203(b) claim with facts related to those rep01ts. Specifically, defendants
argue that in the complaint, plaintiff unambiguously based her§ 659A.203(b) claim only on her
repo1t that a single officer had violated departmental policy. See Comp!.

'if'if 52-57. I am not

persuaded that I must hermetically seal each claim for relief in this way. At least two federal
appellate comts have held that "the form of the complaint is not significant if it alleges facts
upon which relief can be granted, even if it fails to categorize conectly the legal theory giving
rise to the claim." Gean v. Hattaway, 330 F.3d 758, 765 (6th Cir. 2003) (citing Dussouy v. Gulf
Coast Inv. Corp., 660 F.2d 594, 604 (5th Cir. 1981)). Of course, the complaint limits a plaintiff

Page 39 - OPINION AND ORDER

in the sense that it must provide a defendant with fair notice of the claims against it and the
factual basis for those claims.

Here, the complaint alleges that plaintiff repo1ted serious

misconduct to HR. Defendants are plainly on notice of those allegations, as they address them in
their briefing on plaintiffs' First Amendment claims.

Plaintiffs failure to repeat those

allegations in the section of her complaint addressing the § 659A.203(b) claim does not require
me to enter summary judgment against her. Defendants' motion for summary judgment on the
state law whistleblower claim is denied.
C.

Wrong/id Discharge

The final claim at issue in the motion for summary judgment is plaintiffs claim for
wrongful discharge.

As explained in the prior opinion and order on the motion to dismiss,

plaintiffs arguments on this claim are limited to her asse1tion that she was punished for asse1ting
her right to a union representative present during questioning. Nichol, 2016 WL 3512071 at *5;

see also Archer v. Letica Corp., 868 P.2d 770, 771 (Or. Ct. App. 1994) (stating that to prevail on
a claim for wrongful discharge, an employee must show she was "terminated for exercising an
employment-related right, or for complying with or fulfilling a public duty"); Rauda v. Or.

Roses, Inc., 935 P.2d 469, 470 (Or. Ct. App. 1997) (explaining that an employer is liable for
wrongfol discharge if an employee is terminated "for pursuing a right related to his or her role as
an employee," including a right related to union membership).
There is a question of material fact regarding whether Rappe drew an adverse inference
regarding plaintiffs truthfulness from her insistence on having a union representative present.
Rappe testified that plaintiffs decision to invoke her right to have a union representative present,
rather than simply answer his question, suggested that she had something to hide and
unde1mined her explanation that there had been a simple misunderstanding with Charboneau.

Page 40 - OPINION AND ORDER

The initial determination that plaintiff had been dishonest originated with Rappe. To the extent
plaintiff was terminated for dishonesty, her exercise of an employment-related right may have
played a material role in the termination decision. Defendants' motion for summary judgment
on the wrongful termination claim is denied.

CONCLUSION
Defendants' motion for summary judgment (doc. 35) is GRANTED IN PART and
DENIED IN PART as follows. All defendants are entitled to summary judgment on the§ 1983
due process claim.

Grimaldi is fu1ther entitled to summary judgment on the § 1983 equal

protection and First Amendment claims. Defendants' motion is otherwise denied.
Because all claims against Grimaldi have been either dismissed or resolved in his favor,
he is hereby dismissed from this action as a defendant.
IT IS SO ORDERED.
Dated this

6 efay of December 2017.

Ann Aiken
United States District Judge

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