Opinion
6:18-cv-01553-MK
08-29-2023
NANCY BRYANT, Plaintiff, v. CITY OF TOLEDO; CRAIG MARTIN; and BILLIE JO SMITH, Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI (He / Him) United States Magistrate Judge
Plaintiff Nancy Bryant (“Plaintiff”) filed this action (ECF No. 1) alleging whistleblower violations, gender discrimination, defamation, slander, and civil rights violations under 42 U.S.C. § 1983 against defendants City of Toledo (the “City”), Craig Martin, and Billie Jo Smith (collectively, “Defendants”). Defendants filed a Second Motion for Summary Judgment on March 30, 2023 (ECF No. 44) and an Amended Motion for Summary Judgment (ECF No. 59) on May 11, 2023. For the reasons below, Defendants' motion for summary judgment (ECF Nos. 44, 59) should be denied in part and granted in part.
BACKGROUND
Plaintiff was hired by Defendant City of Toledo in January 2005 as a utility billing clerk. Compl., ECF No. 1 at 3. By 2017, Plaintiff had been promoted to the position of City Recorder. Id. Defendant Craig Martin (“Martin”) was hired in August 2016 as the City Manager of the City of Toledo. Id. at 3. Very shortly after Martin was hired, Plaintiff objected to Martin's treatment of her. Plaintiff identified as a department head at the City but complained that Martin treated her as his secretary. Bryant Decl., ECF No. 51 at ¶ 10. Plaintiff expressed her opposition to Martin's treatment, and did not witness Martin treating male staff members in similarly disrespectful ways. Id. at ¶ 8
Plaintiff regularly expressed disagreement with Martin's decisions regarding the city budget. In addition to her opposition to Martin's plans to spend money on the City pool, Plaintiff voiced disagreement about the City's intent to purchase the Columbia Bank Building, which would allegedly cost the city $3.1 million in renovations. Bryant Decl. at ¶¶ 15-16. Plaintiff made a complaint regarding Martin's behavior to Mayor Billie Jo Smith (“Smith”) in May 2017. Id. at ¶¶ 21-22. Plaintiff told Smith that Martin was treating her in an abusive and disrespectful manner due to her gender. Id.
Smith informed Martin about Plaintiff's concerns, and Martin suggested that the City retain independent consultant Michelle Kennedy to perform a management review. Deposition of Craig Martin (“Martin Depo.”), ECF No. 55-15 at 67-68. The City retained Kennedy, who made findings and recommendations to the City on or around July 6, 2017. Id. at 108. These recommendations included hiring outside, neutral sources to facilitate management and instituting a 360 evaluation for the management team. Id. at 15. The report referred to “a few members of the executive leadership team” who voiced concern that their expertise was not heard or solicited and reported difficulties working with Martin. Id. As a result of Kennedy's report, Martin was able to confirm the identity of the individuals who were complaining about his mismanagement of the City. Id. at 117.
In early August 2017, Martin announced plans to move his office and the office of City employee Cindy Olivieri to the main floor of City Hall. Upon learning about this plan, Plaintiff emailed Martin expressing her disapproval that Martin had not sought support from other employees for his plan to relocate his and Olivieri's offices. ECF No. 56-8. Plaintiff reported to the City Council that Martin made personal attacks and that his workplace behavior was threatening. Bryant Decl. at ¶ 23.
In August 2017, the City Council, led by Mayor Smith, initiated an internal investigation. The City retained Jill Goldsmith of Workplace Solutions Northwest, an investigator, to speak with City personnel and review documents. Goldsmith reviewed Plaintiff's emails with other employees Will Ewing and Polly Chavarria. Deposition of Billie Jo Smith (“Smith Depo.”), ECF No. 55-14 at 38. These emails included name-calling and ridiculing of Martin and showed that Plaintiff requested that IT remove Martin's access to the “recorder assist” file on the City's T-drive. ECF No. 56-4. On October 9, 2017, Goldsmith shared her draft report with Katie Kammer, an attorney from the City's insurance carrier. Deposition of Jill Goldsmith (“Goldsmith Depo.”), ECF No. 56-2 at 57-58.
Martin received a final report detailing Goldsmith's investigation findings (“Goldsmith report”). Martin Depo.; ECF No. 45-1. Martin learned from the Goldsmith report that Plaintiff had sent multiple emails to Ewing and Chavarria ridiculing and undermining Martin. Martin Depo. at 192. After reviewing the report, Martin issued Plaintiff a Notice of Potential Termination, which cited Plaintiff's “unwillingness to communicate at even the most rudimentary level,” failure to permit Martin access to personnel files, and interfering with Martin's ability to do his job, as reasons for potential termination. Id.
On October 26, 2017, Plaintiff responded to the Notice of Potential Termination and indicated that she believed the Notice was retaliatory and based on her previous complaints. ECF No. 55-10. Less than a week later, Plaintiff's employment was terminated. Martin Depo. at 85. Plaintiff was terminated because of her email exchanges with Ewing and Chavarria. Id. at 195. Several months later, citizens of the City of Toledo initiated a recall campaign for Mayor Smith. Smith responded by posting flyers describing Plaintiff as a “disgruntled former employee,” and commenting negatively on Plaintiff's claims against the City, ECF Nos. 56-20, 56-21. Plaintiff filed this action on August 23, 2018, alleging gender discrimination under ORS 659A.030; whistleblower violations under ORS 659A.199, 659A.203; and civil rights claims under 42 U.S.C. § 1983.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. 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 which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
Defendants argue that they are entitled to summary judgment on all of Plaintiff's state and federal claims. For the reasons below, Defendants' motion for summary judgment on Plaintiff's Second and Third claims should be granted with respect to Defendant Billie Jo Smith. Defendants' motion for summary judgment on Plaintiff's “Sixth Claim for Relief” should be granted. Defendants' motion for summary judgment on Plaintiff's remaining state and federal claims should be denied.
I. Plaintiff's “Motion to Strike”
As an initial matter, Plaintiff raises a “Motion to Strike” in her response briefing, asking the Court to strike the Goldsmith Report as inadmissible because it contains multiple levels of hearsay. The Court observes that on a summary judgment motion, the Court's focus is on whether the challenged evidence could be presented in an admissible form at trial. See, e.g., JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016). Without ruling on the admissibility of the Goldsmith Report, the Court overrules Plaintiff's evidentiary objection because Plaintiff has not alleged that the Goldsmith Report could not be admissible at trial in any form. JL Beverage Co., 828 F.3d at 1110 (“at summary judgment a district court may consider hearsay evidence submitted in an inadmissible form, so long as the underlying evidence could be provided in an admissible form at trial, such as by live testimony”).
II. § 1983 Claim of Retaliation
Plaintiff's First Claim for Relief alleges that Defendants Martin and Smith retaliated or discriminated against Plaintiff in violation of her right to speak about the mismanagement of City funds by Martin, sexual harassment in the workplace, and violation of City policies and procedures, all matters of public concern. Compl. at ¶ 47. Plaintiff alleges that these Defendants' acts violated her rights under the First Amendment of the U.S. Constitution because (1) Plaintiff engaged in protected speech, (2) suffered an adverse employment action, and (3) her protected speech was a substantial or motivating factor in the adverse action. Id; Pl. R. Brief at 29. Defendants do not attack Plaintiff's prima facie case of First Amendment retaliation but rather argue that they are entitled to summary judgment on Plaintiff's First Amendment claim because (1) there was no adverse employment action by Smith; and (2) there was no causal link between Plaintiff's speech and Martin's adverse employment action.
A. Action by Defendant Smith
As an initial matter, Defendants move for summary judgment on Plaintiff's retaliation claim against Defendant Billie Jo Smith, arguing that there is no evidence that Smith participated or aided in any adverse employment action against Plaintiff. “An adverse employment action is an action ‘reasonably likely to deter employees from engaging in protected activity.'” Coszalter v. City of Salem, 320 F.3d 968, 976 (9th Cir. 2003) (citation omitted). While Defendants are correct that there is no evidence that Smith could mandate that anyone else impose an adverse employment action, Plaintiff has raised a genuine issue of fact as to whether Smith's activities, including initiating the Goldsmith investigation, allowing Goldsmith to read Bryant's emails, and posting flyers describing Plaintiff as a “disgruntled former employee,” and commenting negatively on Plaintiff's claims against the City were reasonably likely to deter employees from engaging in protected activity. See ECF Nos. 56-20, 56-21; Coszalter, 320 F.3d at 976. For these reasons, Smith is not automatically entitled to summary judgment on Plaintiff's whistleblower claim merely because Smith was not directly responsible for terminating her employment.
B. Causal Link Between Plaintiff's Speech and Adverse Employment Action
Defendants argue that Martin and the City are also entitled to summary judgment on Plaintiff's whistleblower retaliation claim because there is no causal link between Plaintiff's allegedly protected actions and her termination. In the Ninth Circuit, if a claimant makes a prima facie case of First Amendment retaliation against a government defendant, the government can “avoid liability by showing that the employee's protected speech was not a but-for cause of the adverse employment action.” Eng v. Cooley, 552 F.3d 1062, 1072 (9th Cir. 2009). Here, Defendants argue that the City terminated Plaintiff's employment for multiple legitimate reasons including violation of City policies, failure to follow the City's standards of conduct, and poor job performance. These reasons are documented in the Notice of Potential Termination issued to Plaintiff on October 24, 2017. ECF No. 45-8. These reasons were also documented in the Notice of Termination issued to Plaintiff issued on November 2, 2017. ECF No. 45-9.
Plaintiff argues that there is an issue of fact as to whether her allegedly protected First Amendment speech, including her complaints to Smith and the City Council in 2017 and her statements expressing concern with the City's budgetary decisions, formed the basis for her termination, suggesting that the reasons listed in the Notice of Termination were a mere pretext for Martin's decision to terminate her employment. Pl. R. Brief, ECF No. 60; Bryant Decl. at ¶¶ 24-29. On a motion for summary judgment, the Court must resolve all reasonable doubts as to the existence of genuine issues of material fact in favor of the non-moving party. T.W. Elec., 809 F.2d at 630. Here, in contrast with the facts of Eng v. Cooley, it is not “undisputed” that Martin would have made the same employment decision absent Plaintiff's speech on issues of public concern. See 552 F.3d at 1072. Plaintiff has raised an issue of fact as to whether, absent her allegedly protected speech acts, Martin would have terminated her employment. On this record, the Court finds that a genuine issue of material fact exists as to whether Plaintiff's allegedly protected speech was a but-for cause of the adverse employment action.
C. Qualified Immunity
Defendants argue in the alternative that they are protected from suit by qualified immunity. To determine whether a defendant is entitled to qualified immunity, the Court considers two questions: (1) whether the defendant violated a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation. See Pearson v. Callahan, 555 U.S. 223, 232, (2009). As the Ninth Circuit recently explained in Isayeva v. Sacramento Sheriff's Department, 872 F.3d 938, 945 (9th Cir. 2017), a state official may be denied qualified immunity at summary judgment in a Section 1983 case “only if (1) the facts alleged, taken in the light most favorable to the party asserting injury, show that the officer's conduct violated a constitutional right, and (2) the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood [his] conduct to be unlawful in that situation.” Id. at 945 (internal quotations omitted). Defendants assert that they are entitled to qualified immunity because their conduct did not violate clearly established First Amendment rights of which a reasonable official would have known. See Pearson, 555 U.S. at 231.
In determining whether a state official is entitled to qualified immunity, the focus of the Court's analysis is whether the official had fair notice that his conduct was unlawful, for example, through “any cases of controlling authority in their jurisdiction at the time of the incident.” Wilson v. Layne, 526 U.S. 603, 617 (1999). As the Supreme Court stated in Garcetti v. Ceballos:
two inquiries ... guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises.547 U.S. 410, 418 (2006) (internal citations omitted). Defendants argue that Plaintiff did not have a clearly established First Amendment right to engage in her allegedly protected speech because it was not made as a private citizen.
Here, at the time of Plaintiff's speech, the established law on public employee First Amendment speech was that “an employee's expressions made pursuant to [her] official responsibilities” are made in her capacity as an employee. Garcetti, 547 U.S. at 424; Ashcroft v. al-Kidd, 563 U.S. 731, 731 (2011). The speech of a public employee must be made in their capacity as a private citizen in order to merit First Amendment protection. Garcetti, 547 U.S. at 418. Defendants argue that because Plaintiff expressed her opinions about the City's budgeting decisions while at work during staff meetings, with no members of the public present, no reasonable official would have concluded that Plaintiff's speech was made as a private citizen and thus entitled to First Amendment protection.
The Court disagrees. At deposition, Martin admitted that Plaintiff's responsibilities did not include deciding how the City spends money. Martin Depo. at 74. In addition to complaining about gender discrimination, which is a violation of state and federal law, Plaintiff complained about mismanagement and misuse of public funds. Bryant Decl. at ¶¶ 15-16. Because City expenditures and budgeting decisions were not within the scope of Plaintiff's employment, the Court cannot conclude as a matter of law that Plaintiff's speech was made in her capacity as an employee. Garcetti, 547 U.S. at 424. Further, Plaintiff testified at deposition that she complained about the City's spending “as a citizen.” Deposition of Nancy Bryant (“Bryant Depo.”), ECF No. 4401 at 77, 82. Considered in the light most favorable to the Plaintiff, the facts suggest that a reasonable official could have concluded that Plaintiff's speech was made as a private citizen and was therefore entitled to First Amendment protection. Pearson, 555 U.S. at 231; Garcetti, 547 U.S. at 424. Defendants have not shown that they are entitled to qualified immunity on Plaintiff's First Amendment claim. See Isayeva, 872 F.3d at 945-46.
III. Sex Discrimination Claim
Plaintiff's Second Claim for Relief alleges a violation of the Fourteenth Amendment's Equal Protection clause based on sex discrimination. Compl. at 9. Specifically, Plaintiff's Complaint alleges that
Defendant Martin violated Bryant's right to be free from discrimination based on sex when he created and maintained a work environment that was sexually hostile and subjected Bryant to disparate treatment in the terms and conditions of her employment[; and]
Defendant Smith encouraged, sanctioned and ratified the creation and maintenance of a work environment that was sexually hostile and subjected Bryant to disparate treatment in the terms and conditions of her employment.Compl. at ¶¶ 55-56. As described below, Plaintiff has provided evidence to support her claim that Martin and Smith subjected Plaintiff to disparate treatment based on her sex, in violation of the Equal Protection clause of the Fourteenth Amendment. Compl. at ¶¶ 54-56; Bryant Decl. at 13; ECF Nos. 56-20, 56-21.
Defendants argue that summary judgment is appropriate on Plaintiff's Fourteenth Amendment Equal Protection claim because (1) Plaintiff has failed to show that Smith engaged in any disparate treatment or adverse employment action; (2) Plaintiff has failed to make out a prima facie case of sex discrimination; and (3) Defendants are entitled to qualified immunity.
A. Evidence of Smith's Disparate Treatment
As an initial matter, Defendants argue that Plaintiff's Second Claim for Relief should be dismissed against Smith because Plaintiff has failed to present any evidence that Smith engaged in disparate treatment or an adverse employment action against Plaintiff. The Court disagrees. Plaintiff alleged that Smith initiated the Goldsmith investigation and made statements to bias the investigation against her. While Defendants are correct that Plaintiff has not alleged that Smith had authority to make decisions regarding personnel or to influence employment actions, she has provided sufficient evidence to create an issue of fact as to whether Smith sanctioned or ratified a work environment that was hostile to women and subjected Plaintiff to disparate treatment based on her sex. See Bryant Decl. at ¶ 22. Specifically, Plaintiff has presented evidence that, despite her complaints to Smith about Martin's persistent harassment and discriminatory behavior, Smith not only failed to take ameliorative action but made statements to Goldsmith that Plaintiff was attacking Martin and refusing to cooperate. Goldsmith Depo. at 49-51. This evidence also supports an inference the Smith did not treat male City employees in a similar way. On this record, the Court is satisfied that there is an issue of fact as to whether Smith's conduct would be actionable under a theory of sex discrimination.
B. Prima Facie Case of Sex Discrimination
To state a prima facie case of sex discrimination, a claimant must show that (1) she is a member of a protected class; (2) she was qualified for her position; (3) she experienced an adverse employment action; and (4) similarly situated individuals outside her protected class were treated more favorably. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In the Ninth Circuit, “[t]he central inquiry in an Equal Protection Clause claim is whether a government action was motivated by a discriminatory purpose.” Ballou v. McElvain, 29 F.4th 413, 422 (9th Cir. 2022). A claimant may establish a discriminatory purpose by producing direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the defendant, and that the defendant's actions adversely affected the plaintiff in some way. Id. Where direct evidence is unavailable, a claimant can rely upon the burden-shifting framework set forth in McDonnell Douglas to demonstrate any available circumstantial evidence. 411 U.S. 792.
Defendants argue that Plaintiff failed to show that Martin had any discriminatory animus motivating his termination decision that would satisfy the fourth prong of the test for sex discrimination articulated in McDonnell Douglas. To make out a prima facie case of sex discrimination, a claimant may provide evidence that similarly situated individuals outside her protected class were treated more favorably. McDonnell Douglas, 411 U.S. 792. In general, discriminatory intent is a factual matter for the jury. Pullman-Standard v. Swint, et al., 456 U.S. 273, 288-90 (1982).
Here, there is evidence that Martin treated similarly situated individuals outside of Plaintiff's protected class more favorably. William Ewing, a male City employee, participated in email exchanges with Plaintiff that formed the basis of Martin's stated reasons for terminating Plaintiff. Martin Depo. at 212-14. Ewing, however, was not terminated or issued a Notice of Potential Termination for these activities; he was merely disciplined. Id. The alleged reasons for Plaintiff's termination are that Plaintiff refused to perform tasks for Martin; resisted Martin's requests for access to personnel files; removed Martin's access to electronic City files; and sent emails through her City email account to ridicule Martin. Ewing was suspended without pay and put on a performance improvement plan before his employment was terminated; Plaintiff was simply fired after receiving a Notice of Potential Termination. Martin Depo. at 212-14. While Defendants argue that these different sanctions are justified by the respective employees' misconduct, the Court finds that Plaintiff's pretermination conduct is substantially similar to Ewing's, and there is an issue of fact as to whether Ewing, a male employee, was treated more favorably than Plaintiff even after violating City policy, and engaging in email communications that undermined and ridiculed Martin as act of insubordination.
C. Legitimate, Nondiscriminatory Reason for Termination Decision
Defendants also argue that even if Plaintiff can make out a prima facie sex discrimination claim, the claim nevertheless fails because Defendants can meet their burden to show a legitimate, nondiscriminatory reason for terminating Plaintiff's employment. See McDonnell Douglas, 411 U.S. at 802-03. As such, Defendants repeat their allegations that Plaintiff was fired because she refused to perform tasks for Martin; resisted Martin's requests for access to personnel files; removed Martin's access to electronic City files; and sent emails through her City email account to ridicule Martin. Defendants allege that there are no facts that could demonstrate that these reasons underlying Martin's actions were a pretext for sex discrimination.
Under the McDonnell Douglas framework, if an employer articulates some legitimate, nondiscriminatory reason for terminating an employee, a claimant must be afforded a fair opportunity to show that the employer's reason for the employment action was pretextual. 411 U.S. at 804. A claimant can demonstrate pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer[,] or indirectly by showing that the employer's proffered explanation is unworthy of credence.” Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1062 (9th Cir. 2002). To show pretext, a claimant may rely on circumstantial evidence that is both “specific and substantial.” Id.
Defendants argue that because Martin had no intention of firing Plaintiff prior to reading the Goldsmith report, there is no question of fact as to the existence of any discriminatory animus that would substantiate a claim of sex discrimination. This is not dispositive of Defendants' motion. Accepting as undisputed the claim that Martin's decision to fire Plaintiff was made after reading the Goldsmith report and, specifically, Plaintiff's emails with Ewing and Chevarria, there remains a question of fact as to whether a sex-based discriminatory animus led Martin to terminate Plaintiff's employment; or, put another way, it is an open question whether, if Plaintiff was male, Martin would have come to the same decision to terminate Plaintiff's employment after reading the Goldsmith report. As noted above, Plaintiff has provided evidence that William Ewing, a male employee whose inflammatory emails were also revealed to Martin in the Goldsmith report, was not immediately fired following the report but was instead put on a performance improvement plan. Martin Depo. at 212-14; see Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002) (“[A] plaintiff may rely on circumstantial evidence to show pretext, [however], such evidence must be both specific and substantial”).
Plaintiff has thus alleged through specific and substantial circumstantial evidence that Martin's actions were motivated by a sex-based discriminatory animus and not the proffered evidence of Plaintiff's emails and alleged insubordination. Villiarimo, 281 F.3d at 1062. Plaintiff has provided evidence that a similarly situated individual outside her protected class, William Ewing, was treated more favorably after the revelation of similar conduct through, for example, the offer of a performance improvement plan instead of the more final Notice of Potential Termination that was issued to Plaintiff. This evidence permits an inference that Martin acted with a discriminatory motive in his decision to terminate Plaintiff's employment. See Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (even when the facts are not in dispute, summary judgment is improper when competing inferences can be drawn from the undisputed facts on material issues). On this record, viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in favor of the nonmoving party, Defendants have not shown that there is no genuine issue of material fact as to whether Defendants had a legitimate, nondiscriminatory reason for Plaintiff's termination that was not pretextual. See McDonnell Douglas, 411 U.S. at 804-05.
D. Qualified Immunity
Defendants argue in the alternative that Plaintiff's Second Claim for Relief should be dismissed because Defendants are entitled to qualified immunity. To determine whether a defendant is entitled to qualified immunity, the Court considers two questions: (1) whether the defendant violated a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation. See Pearson, 555 U.S. at 232. A state official may be denied qualified immunity at summary judgment in a § 1983 case “only if (1) the facts alleged, taken in the light most favorable to the party asserting injury, show that the officer's conduct violated a constitutional right, and (2) the right at issue was clearly established at the time of the incident such that a reasonable officer would have understood [his] conduct to be unlawful in that situation.” Isayeva, 872 F.3d at 945 (internal quotations omitted).
At the time of Plaintiff's termination, an Equal Protection claim could be substantiated by evidence of “denial of a promotion, adverse alteration of job responsibilities, and other hostile treatment ... [or] severe or pervasive physical and verbal harassment” as evidence of sex discrimination. Bator v. State of Hawai'i, 39 F.3d 1021, 1028 (9th Cir. 1994); Linsey v. Shalmy, 29 F.3d 182, 186 (9th Cir. 1994). Here, Plaintiff has provided evidence that creates a question of fact as to whether Martin subjected her to pervasive demeaning remarks and treatment and that this treatment was based on Plaintiff's sex. On this record, Martin is not entitled to qualified immunity on Plaintiff's Equal Protection claim.
Plaintiff has also alleged that Smith initiated the Goldsmith investigation, made allegedly false statements to bias the Goldsmith report, posting flyers describing Plaintiff as a “disgruntled former employee,” and commenting negatively on Plaintiff's claims against the City. See ECF Nos. 56-20, 56-21. However, Plaintiff has not offered evidence that Smith's treatment of Plaintiff was based on Plaintiff's sex. Further, Smith's alleged publications of defamatory statements about Plaintiff also included statements about William Ewing, a male former employee. Because Plaintiff has not provided argument or evidence to substantiate a claim that Smith's treatment of Plaintiff was motivated by a discriminatory animus, Smith is therefore entitled to qualified immunity on Plaintiff's Equal Protection claim. Accordingly, Defendants' motion for summary judgment on Plaintiff's Equal Protection claim should be granted as to defendant Billie Jo Smith.
IV. Due Process Claim
Plaintiff's “Sixth Claim for Relief”alleges that Defendants Smith and Martin deprived Plaintiff of a protected liberty interest in her reputation without due process of law. Compl. at ¶ 80. The Fourteenth Amendment's protection against deprivations of liberty encompasses the right of persons “to engage in any of the common occupations of life.” Hyland v. Wonder, 972 F.2d 1129, 1141 (9th Cir. 1992). If the government terminates an employee “for reasons that might seriously damage his standing in the community, he is entitled to notice and a hearing to clear his name.” Bollow v. Fed. Rsrv. Bank of San Francisco, 650 F.2d 1093, 1100 (9th Cir. 1981). “To implicate constitutional liberty interests, however, the reasons for dismissal must be sufficiently serious to stigmatize or otherwise burden the individual so that he is not able to take advantage of other employment opportunities.” Id. “Charges that carry the stigma of moral turpitude, such as dishonesty or immorality, may implicate a liberty interest, but charges of incompetence or inability to get along with others do not.” Portman v. Cnty. of Santa Clara, 995 F.2d 898, 907 (9th Cir. 1993).
Because Plaintiff's due process claim is misnumbered, for ease of reference the Court refers to this claim by its title in the Complaint. See Compl. at ¶ 80.
A. Martin's Notice of Termination
Plaintiff first alleges that her protected liberty interest was harmed when Martin issued a Notice of Termination stating that Plaintiff was disrespectful, unprofessional, and “less than truthful.” In the Ninth Circuit, if the charge in an employment termination context impairs a reputation for honesty or morality, procedural protections of due process apply if: (1) the accuracy of the charge is contested; (2) there is some public disclosure of the charge; and (3) the charge is made in connection with termination of employment. Matthews v. Harney County, Or. School Dist. No. 4, 819 F.2d 889, 891-92 (9th Cir. 1987) (citing Jones v. Los Angeles Community College Dist., 702 F.2d 203, 206 (9th Cir.1983)). Here, Martin's Notice was issued to Plaintiff in connection with the termination of Plaintiff's employment, and Plaintiff has contested the accuracy of the charges within the Notice. Matthews, 819 F.2d at 891-92. Plaintiff, however, has neither alleged nor provided evidence that Martin made any public disclosure of the charges within the termination Notice, and therefore has not stated a claim for denial of due process based on a liberty interest. See id.
B. Smith's Public Disclosures
Plaintiff also argues that Smith harmed Plaintiff's protected liberty interest by “disseminating flyers to Toledo voters and members of the public, essentially calling [Plaintiff] a liar, and a “disgruntled former employee.” ECF No. 56-20. Plaintiff alleges that “Smith's publications made false accusations about [Plaintiff's] character in a very public way ‘jeopardizing the working relations in the City,' conspiring to ‘undermine the authority of the City manager' and falsely claiming that her legal claim was denied, implying that [Plaintiff] was bringing frivolous claims against the City.” Pl.'s Resp. Br., ECF No. 50 at 30-31.
In the Ninth Circuit, statements made after a claimant's discharge cannot establish violation of a liberty interest. Botefur v. City of Eagle Point, Or., 7 F.3d 152 (9th Cir. 1993). Here, the publication of Smith's allegedly defamatory materials occurred after Plaintiff's position at the City was terminated. Smith Depo. at 94-95; ECF No. 56-20. On this record, Plaintiff has provided no evidence that Smith publicly disclosed defamatory statements during Plaintiff's termination process. Because a claimant cannot state a claim for a due process liberty interest deprivation if the alleged defamatory statement were made after the claimant's discharge, Smith's public disclosures are not actionable under the due process clause. Botefur, 7 F.3d at 158. On this record, Defendants' motion for summary judgment should be granted as to Plaintiff's “Sixth Claim for Relief.”
V. State Law Claims
Defendants next argue that they are entitled to summary judgment on Plaintiff's remaining state law claims for (1) whistleblower retaliation and aiding and abetting unlawful discrimination and/or retaliation and (2) sex discrimination under ORS 659A.030.
A. Whistleblowing and Retaliation under ORS 659A.199 and ORS 659A.203
Plaintiff's Fourth Claim for Relief alleges that Defendants City and Martin retaliated against Plaintiff because she opposed unlawful employment practices and disclosed information that she reasonably believed was evidence of a violation of state and federal law, or abuse of authority, in violation of ORS 659A.030(f), ORS 659A.203 and ORS 659A.199. Compl. at ¶ 72. To establish the “causal link” element of a prima facie case under ORS 659A.199 and ORS 659A.203, a claimant must show her protected activity was a “substantial factor” in the motivation to take adverse employment action against her. Huitt v. Optum Health Servs., 216 F.Supp.3d 1179, 1190 (D. Or. 2016). Here, because the Court finds that Defendants' motion for summary judgment should be denied as to Plaintiff's First Amendment retaliation claim, and the elements of the state law claim are substantially similar to the elements of Plaintiff's federal claim, summary judgment should be denied as to Plaintiff's state law claims of whistleblower retaliation and aiding and abetting unlawful discrimination or retaliation under ORS 659A.199 and ORS 659A.203.
B. Sex Discrimination under ORS 659A.030
Plaintiff's Third Claim for Relief alleges that Martin aided or abetted sex discrimination against Plaintiff in violation of ORS 659A.030(g). Compl. at ¶ 65. Plaintiff's Fourth Claim for Relief also alleges that Martin and Smith aided or abetted in retaliation against Plaintiff for activities protected under the First Amendment, in violation of ORS 659A.030(g). Compl. at ¶ 73. The test for establishing a prima facie sex discrimination claim under ORS 659A.030 is identical to the test applied in the Ninth Circuit. Because Smith is entitled to qualified immunity on Plaintiff's federal claim of sex discrimination, she is therefore entitled to qualified immunity on Plaintiff's claim under ORS 659A.030.
Defendant Martin, however, is not entitled to summary judgment on Plaintiff's Third Claim for Relief because Plaintiff has raised a genuine issue of material fact as to whether Martin's adverse employment action was motivated by a sex-based discriminatory animus and Defendants have not shown that Martin is entitled to qualified immunity. Defendants' motion to dismiss Plaintiff's Third and Fourth Claims for Relief against Martin should therefore be denied.
RECOMMENDATION
For the reasons above, Defendants' motions for summary judgment (ECF Nos. 44, 59) should be GRANTED in part and DENIED in part. Defendants' motion for summary judgment on Plaintiff's Second Claim and ORS 659A.030 claim should be granted as to Billie Jo Smith. Defendants' motion for summary judgment on Plaintiff's “Sixth Claim for Relief” should be granted. Defendants' motion for summary judgment on Plaintiff's remaining claims should be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).