Opinion
Civil No. 00-1626
May 17, 2001
OPINION AND ORDER
I. Introduction
In this case plaintiff, a former officer with the Oregon State Police, alleges that he was terminated from his employment in violation of his constitutional rights. Defendants have filed a motion for summary judgment. For the reasons stated below, the motion for summary judgment is granted.
II. Factual Background
Plaintiff joined the Oregon State Police as a recruit on July 1, 1997 and was promoted to full trooper on January 1, 1998. He was then terminated effective August 6, 1999 as a result of various charges resulting from three alleged instances of inappropriate off-duty conduct and his refusal to answer the questions of an investigator about the incidents.
The first and second instances of alleged misconduct occurred on the night of September 19, 1998, at a barn party in Ontario, Oregon. According to the Oregon State Police, during the party plaintiff was talking with several police officers from Idaho. Plaintiff became intoxicated and began to pillory the Malheur County District Attorney's Office for failing to go forward with cases he said he had presented for proseuction. Two employees of the District Attorney's Office were present and became embarrassed by plaintiff's outbursts. The employees informed the District Attorney of plaintiff's comments and his apparently drunken condition. As a result, the District Attorney wrote a letter to plaintiff's superiors, explaining what she had been told and noting that 14 of the 15 cases plaintiff had submitted to her office for prosecution had been prosecuted. (Defendants' Ex. I.) Plaintiff's supervisor, Defendant Schloegel, verbally reprimanded him for undermining the relationship between the two agencies and ordered him to write an apology letter to the District Attorney. (Ex. K.) Plaintiff maintains that he was not intoxicated and that he criticized the District Attorney's Office only after an office employee criticized the content and presentation of his own reports.
Shortly after the verbal reprimand was issued, Defendant Schloegel received a second complaint about plaintiff's behavior at the party, this time from two women who were also in attendance. According to the investigation reports, a group of women were standing together at the party when they noticed that plaintiff and another man were staring at them. The women did not know plaintiff. (Ex. L.) Plaintiff and the men approached the women, and plaintiff asked one of the women her name. When she responded, plaintiff asked if her husband was the town chiropractor. When she responded affirmatively, plaintiff then indicated that he was a police officer and told her, falsely, that he had recently stopped her husband and given him a ticket in a seedy part of town while another woman was in her husband's car. (Id.) Plaintiff's statement clearly implied that her husband was having an affair. One of the woman's friends attempted to defend her by telling plaintiff that she did not think the woman's "husband needed to be looking elsewhere." (Id.) Plaintiff then asked the woman how long she had been married, and she told him 16 years. Plaintiff then quipped, "Oh yeah he does." (Id.) It appears that plaintiff and his friend also made other derogatory statements about the woman's husband. (Id.) In addition, at some point during the conversation, plaintiff's friend told the woman that plaintiff was going on duty later that night and would stop her and put handcuffs on her. (Id.) This statement was made in a suggestive way. (Id.)
The woman and her friends became increasingly upset at plaintiff's remarks and walked away. When the woman's husband arrived, he verified that he had not been stopped by plaintiff and also became upset by plaintiff's calumnies. When she reported plaintiff's behavior to the police, the woman indicated she was afraid that plaintiff might retaliate against her by pulling her over while he was on duty. The woman's story is corroborated in the police report by two other women, one of whom requested anonymity. Nevertheless, plaintiff maintains that the women's version of events was an "an outright lie" and that he approached the woman with his fictitious story only as a joke at the behest of one of her friends. (Id.) (Plaintiff's Ex. 3.) The women deny that plaintiff was ever asked to approach the woman with his false story. (Defendant's Ex. L.) After the investigation into these allegations, Defendant Schloegel retracted the earlier verbal reprimand and issued a written reprimand in its place. In addition, he required plaintiff to write an apology letter to the victim and to "refrain from any further conduct through word or deed that would reflect poorly on the department." (Id.)
The third incident of off-duty misconduct occurred on May 1, 1999. According to the police reports, two Ontario City Police Officers learned that James Rumsey, a friend of plaintiff's who was on probation for driving under the influence of alcohol, was violating the terms of his probation by being inside a local bar. As the officers entered the bar to detain Rumsey, plaintiff exited the door of the bar. When plaintiff saw the Ontario police officers, he stopped, "got a panicked expression on his face and went back inside." (Ex. O.) The Ontario officers suspected that plaintiff was tipping Rumsey off to their presence. The officers went inside and asked the bartender if a large man matching Rumsey's description had been in the bar. She indicated that he had just exited through a different door. The officers followed Rumsey out the door and found him heading toward an alley across the street. As the officers detained Rumsey, plaintiff came out of the bar, glowered at them, and shook his head back and forth. A third man, Mark Mahoney, then exited the bar. The Ontario officers asked Mahoney a question. At that point plaintiff yelled to Mahoney, "Let's go. They don't have shit on us" and "Mark, don't say nothing, don't say nothing; they don't have shit on us, fuckers." (Id.) Plaintiff continued yelling at the officers, "This is bullshit." (Id.) Plaintiff then got into his truck, picked up his cell phone, and continued to yell "Fuckers, Fuckers" while speaking into the phone and staring at the officers. Plaintiff then drove away.
After plaintiff left, the Ontario police officers returned to the bar. The bartender and another patron confirmed the officers' suspicions. Plaintiff had been drinking at the bar with Rumsey and Mahoney; each of the three men had a shot of whiskey and a beer. (Id.) Plaintiff had gotten up to leave, but then came back in the bar and told Rumsey, who was on probation, to leave through another exist. He then instructed the bartender, "Don't tell them where he went?" The bartender asked, "Who?" And plaintiff replied, "The cop." (Id.) Plaintiff has filed an affidavit from Mahoney disputing that plaintiff asked the bartender to lie for Rumsey; however, Mahoney's affidavit verifies that plaintiff had been drinking at the bar with Rumsey, who could not enter establishments serving alcohol under the terms of his probation. (Mahoney Aff.)
As a result of this incident, the Malheur County District Attorney charged plaintiff in state court with three crimes, including interfering with a police officer and aiding and abetting Rumsey's probation violation. (Ex. T.) In addition, the District Attorney wrote plaintiff's supervisors:
[M]y office does not feel we can prosecute cases with Trooper Brent Lam as a witness for the State, as a result of his conduct on May 1, 1999. Specifically, we feel his credibility has been compromised by his alleged actions in requesting that a lay person lie to Ontario Police regarding a probationer, and would be reluctant to use him as a witness in criminal proceedings.
(Id.) The Oregon State Police also conducted its own personnel investigation. In order to aid the State Police Personnel investigation, the District Attorney agreed to provide plaintiff with use immunity for any statements he made during the personnel investigation, and the State Police agreed not to supply the District Attorney with any information gathered from plaintiff's statement during the personnel investigation. (Exs. U and V.) Accordingly, the State Police officer investigating plaintiff's actions explained to plaintiff the terms of his immunity and then ordered plaintiff to answer his questions. (Plaintiff's Ex. 7.) Nonetheless, plaintiff refused to comply with the order on Fifth Amendment grounds. As a result of the investigation, the State Police terminated plaintiff's employment on several bases, including his conduct at the party on September 19, 1998 and in the bar on May 1, 1999 and for refusing the order to answer the investigator's questions during the personnel investigation.
Pursuant to a collective bargaining agreement between the Oregon State Police Officers' Union and the Oregon State Police, plaintiff was entitled to an evidentiary hearing before a neutral arbitrator to challenge his termination. Plaintiff invoked his right to arbitration and was represented at that hearing by two attorneys as well as the union. Upon the advice of counsel, plaintiff refused to testify on his own behalf. The arbitrator heard all other evidence from the parties and then stayed his final decision so that plaintiff could testify after his criminal case had been resolved. (Plaintiff's Ex. 4 and 5.) Plaintiff's criminal case has also been stayed while the Oregon Court of Appeals decides which charges may proceed to trial.
Although the arbitration is stayed, plaintiff is still entitled to pursue his claims in this court for the alleged deprivation of his constitutional rights. Patsy v. Board of Regents of State of Fla., 457 U.S. 520, 102 S.Ct. 2557 (1982) (employee allowed to bring § 1983 claims against a state university even though she had not exhausted available administrative remedies).
III. Standards
Federal Rule of Civil Procedure 56(c) mandates entry of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The purpose of a motion for summary judgment is to determine whether a "genuine issue of material fact" exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510(1986). A "material fact" is a fact "that might affect the outcome of the suit under the governing law." Id. A "genuine issue" regarding a material fact exists "if the evidence is such that a reasonable jury could return a verdict for a nonmoving party." Id.Summary judgment is properly granted when, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, it is clear no genuine issue of material fact remains and the case may be decided as a matter of law. Greeno v. Little Blue Valley Sewer Dist., 995 F.2d 861, 863 (8th Cir. 1993); Rose v. Wells Fargo Co., 902 F.2d 1417, 1420 (9th Cir. 1990); Palmer v. United States, 794 F.2d 534, 536 (9th Cir. 1986). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, the burden then shifts to the nonmoving party to produce evidence of the existence of a genuine issue for trial:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the non-moving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986).
IV. Discussion
In his complaint brought pursuant to 42 U.S.C. § 1983, plaintiff alleges that his termination violated the First, Fifth, and Fourteenth Amendments to the United States Constitution, as well as Article I, Sections 8 and 12 of the Oregon Constitution. These claims are discussed in turn below.
Defendants also seek dismissal on the ground that they were not sufficiently involved in plaintiff's termination. As the defendants filed this motion before discovery has taken place, dismissal on that basis is unwarranted. In addition, defendants argue that plaintiff's claims should be dismissed because plaintiff failed to designate whether he was suing them in their official or personal capacities. In his opposition to summary judgment, plaintiff specifies that his claims are brought against the defendants in their personal capacities. As the pleading defect could be corrected in an amended complaint, dismissal on that basis is likewise unwarranted.
A. The Oregon State Constitution
Plaintiff alleges that his termination violated Article I, Sections 8 and 12 of the Oregon State Constitution. These claims based on the Oregon Constitution must be dismissed. First, 42 U.S.C. § 1983 provides a remedy for violations of federal rights; it does not provide a remedy for violation of other rights, such as rights protected by the state constitution. Moore v. Kusper, 465 F.2d 256, 258 (7th Cir. 1972); Luckett v. Turner, 18 F. Supp.2d 835, 838 (W.D.Tenn. 1998); Nationwide Amusements, Inc. v. Nattin, 325 F. Supp. 95, 97 (W.D.La. 1971). Thus, § 1983 does not provide grounds to hear plaintiff's claim that the defendants violated the Oregon Constitution. Second, the "Eleventh Amendment bars a citizen from bringing a suit against his own state in federal court." Micomonaco v. State of Wash., 45 F.3d 316, 319 (9th Cir. 1995). The State of Oregon has not waived its immunity for lawsuits brought in federal court under the Oregon State Constitution, and Congress has not abrogated the state's immunity. Thus, this court is not the proper venue for litigating such state constitutional claims. Third, Oregon courts have not recognized a private right of against a state or municipality for a violation of the Oregon State Constitution. Barcik v. Kubiaczyk, 321 Or. 174, 190, 985 P.2d 765 (1995); Hunter v. City of Eugene, 309 Or. 298, 302-04, 787 P.2d 881 (1990). Thus, even if plaintiff's complaint had been filed in Oregon state court, his state constitutional claims are not cognizable. In summary, plaintiff's claims under the Oregon State Constitution are baseless and must be dismissed.B. Fifth Amendment
Next, plaintiff alleges that his termination based upon his refusal to answer the Oregon State Police investigator's questions about his conduct violated the Fifth Amendment to the United States Constitution. This claim also lacks merit. It is undisputed that plaintiff was offered use immunity by the State Police so that statements made by him in the personnel investigation and evidence derived from those statements would not be used against him in the criminal context, nor would they be revealed to the criminal prosecutor. The Supreme Court has specifically stated that a public employee may be fired for refusing to answer questions related to the employment if use immunity is offered. Sanitation Men v. Sanitation Comm'r, 392 U.S. 280, 283-283 (1968). Thus, plaintiff's Fifth Amendment claim must be dismissed.
C. Fourteenth Amendment
Plaintiff alleges that he was deprived of liberty and property without due process of law. In essence, he argues that defendants could not fire him without ascertaining his testimony about the May 1, 1999 incident involving his obstruction of the arrest of Rumsey. This claim also fails. Procedural due process requires only that plaintiff be given adequate notice and the opportunity to be heard. Reid v. Engen, 765 F.2d 1457, 1463 (9th Cir. 1985). By providing plaintiff with an evidentiary hearing in front of a neutral arbitrator in accordance with the collective bargaining agreement, plaintiff was accorded all of the due-process rights to which he was entitled. Armstrong v. Meyers, 964 F.2d 948, 950.
In Decker v. Clark, 95 Or. App. 320, 769 P.2d 228 (1989), two police officers were dismissed when they were discovered purchasing and using cocaine. The officers brought a § 1983 action in state court alleging that their federal due-process rights were violated because the Chief of Police did not provide them with transactional immunity (that is, immunity from all criminal prosecution) when he ordered them to answer questions during a personnel investigation and dismissed them for failing to answer those questions:
The testimonial immunity that the [Police] Bureau provided plaintiffs satisfied federal constitutional requirements. It was, therefore, not a violation of their federal constitutional rights to discipline them for refusing to comply with orders to answer questions after they had received that immunity.
There was also nothing improper about proceeding with the disciplinary hearing despite the failure to provide transactional immunity. Plaintiff's received a hearing that included an opportunity to present their side of the case. If they did not believe that the immunity that the Bureau offered was sufficient, they could, and did, refuse to testify at the hearing. They had the opportunity to present favorable information if they wished to do so. Their decision not to testify did not prevent the Bureau from conducting the hearing any more than a criminal defendant's decision not to testify prevents a court from conducting a trial. The Supreme Court's statement that an employee should be given `an opportunity to present his side of the story,' Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487 (1985), does not require that the employee be immunized from all liability as part of the opportunity. Plaintiffs received all that federal due process requires.
Id. at 324.
This court adopts the reasoning of Decker. Here, plaintiff received a hearing before a neutral arbitrator so that he could challenge the basis of his termination. Plaintiff attended the hearing, confronted the witnesses against him, and presented evidence. The unavailability of plaintiff's testimony was a problem of his own making. Plaintiff was granted use immunity, but refused to testify. His argument that the defendants violated his due-process rights because of his own refusal to testify is a non sequitur. Plaintiff received all the process to which he was entitled, and therefore, his Fourteenth Amendment claim is dismissed.
D. First Amendment
Finally, plaintiff alleges that his firing for his invective against the Malheur County District Attorney's Office violated his free-speech rights. A public employee is protected from dismissal for the content of his expression only if the speech is a matter of public concern. Connick v. Myers 461 U.S. 138, 146, 103 S.Ct. 1684 (1983). Assuming for the sake of argument that plaintiff's statements about the District Attorney's Office was a matter of public concern, the defendants did not violate his free-speech rights. A plaintiff is not entitled to recover if his or her statements were "false or made with reckless disregard for the truth." Gilbrook v. City of Westminster, 177 F.3d 839, 867 (9th Cir. 199); see also Moran v. Washington, 147 F.3d 839, 849-50 (9th Cir. 1998).
As of September 19, 1998, the District Attorney's records show that 14 of the 15 cases plaintiff had submitted to the District Attorney's office had been prosecuted. (Defendants' Ex. I.) Thus, plaintiff's statements that the District Attorney had failed to prosecute his cases appears to be false. In response, plaintiff has filed an affidavit claiming, "I made this statement in good faith because of my past experience with the Malheur County District Attorney's Office where they had refused to prosecute sex offender cases which I brought. Not only was I upset by the failure to prosecute, many members of the state police had voiced similar concerns to me as had members of the public." (Lam Aff. at 4.) Plaintiff's affidavit is suspect for a number of reasons.
First, plaintiff's affidavit is devoid of specificity. He fails to provide any details about any cases he brought that were not prosecuted or name any of the officers who supposedly shared his views. "A conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact." Federal Trade Comm'n v. Publishing Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997). Second, police records indicate that plaintiff was involved with only two cases involving sex offenders while he was an officer. Both cases occurred in April 1999, long after the September 1998 party at which his comments were made. Third, the State Police and District Attorney's records show that plaintiff did not present a sex offender case to the Malheur County District Attorney's Office prior to the barn dance. Fourth, plaintiff made no mention of these alleged cases in the letter to his supervisor in opposition to being disciplined for his actions. (See Defendant's Ex. 2.) Even when the facts are viewed in a light most favorable to plaintiff, the veracity of his statements is, at best, dubious.
Even if this defect is overlooked, plaintiff's First Amendment claim cannot survive summary judgment. The gravamen of plaintiff's complaint is that he was terminated unlawfully. Where a government employer had adequate grounds to terminate an employee for reasons that were constitutionally sound, the employee has no First Amendment claim even if he was fired in part because of his speech. Mount Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 283-87, 97 S.Ct. 568, 574-75 (1977); Diesel v. Town of Lewisboro, 232 F.3d 92, 108 (2nd Cir. 2000). Even assuming plaintiff could not have been fired for his statements about the District Attorney's Office at the barn party, the State Police had adequate grounds to terminate plaintiff for several reasons, such as his harassment of the woman at the barn party, drinking at a bar with a person whom he knew was violating probation, obstructing an arrest, instructing a citizen to lie to other police officers, and refusing to answer the State Police investigator's questions despite being granted use immunity. See Decker, 95 Or. App. at 324 (failure of a police officer to answer questions about his conduct when granted use immunity is a proper cause for termination). Thus, defendants have established that they had grounds to terminate plaintiff regardless whether his comments about the District Attorney were protected speech. As a result, plaintiff has no First Amendment claim. Mount Healthy, 97 S.Ct. at 574-75; Desiel 232 F.3d at 108.
That plaintiff refused to answer the questions about his conduct and that he was drinking in a bar with a person on probation is undisputed. Either of these grounds is sufficient to support his termination. Although plaintiff disputes the other allegations about his conduct, it is not the role of the court to substitute its judgment for that of the employer by determining whether or not he should have been fired. See Weinstock v. Columbia University, 224 F.3d 33, 47 (2nd Cir. 2000); Rossy v. Roche Prod., Inc., 880 F.2d 621, 625 (1st Cir. 1989). The role of the court is merely to determine whether constitutional procedures were followed.
V. Conclusion
For the foregoing reasons, defendants' motion for summary judgment, (doc. 8), is granted. Plaintiff's complaint is dismissed with prejudice.
IT IS SO ORDERED.