Opinion
Civil No. 02-216-AS
April 20, 2004
OPINION AND ORDER
On December 22, 2003, Magistrate Judge Ashmanskas entered findings and recommendation in the above captioned case, dismissing plaintiff on summary judgment. Plaintiff filed timely objections. Having reviewed those objections, and the associated briefing from both parties, I herein accept the analysis of the Magistrate, subject to certain changes incorporated in the text that follows:
* * * *
Presently before the court is the summary judgment motion filed by defendant City of Lincoln City (the "City") and David Hawker ("Hawker") (collectively referred to as "defendants"). Defendants contend that plaintiff Doris Conley has failed to present sufficient evidence to support any claim arising from her employment relationship with, and eventual termination by, defendants.
Background
Plaintiff was hired as Chief of Police ("Chief") by the City effective May 1, 1998. Shortly after assuming her duties as Chief, plaintiff held a meeting for all police department employees and introduced several new policies that were effective immediately and would result in disciplinary action if not strictly adhered to. At the same time, plaintiff altered work schedules by eliminating the existing twelve-hour shifts and restricting employees to eight-hour shifts. These changes, especially the change in the work schedules, were not well-received by the employees.
Two months later, plaintiff issued a completely new set of Rules and Regulations at a second department-wide meeting. Shortly thereafter, plaintiff issued a new set of General Orders applicable to all officers and effective immediately.
In mid-August 1998, the Lincoln City Police Employee's Association, the police officer's bargaining unit, advised plaintiff that it thought many of the new rules were subject to mandatory bargaining. The union demanded that implementation of the rules be deferred until after bargaining on the rules occurred. Plaintiff refused to deter implementation of the rules and, on August 28, 1998, the union filed an unfair labor practice complaint with the State Employee Relations Board, bypassing the grievance procedure. Attempts to negotiate changes to the rules prior to board action were unsuccessful.
Eventually, the board issued an opinion in which the hearings officer concluded that at least five of the rules were enacted in violation of Oregon law. The union and the city again attempted to negotiate a settlement of the issues but were unsuccessful in completing the settlement before the board entered its final order holding that the implementation of three of the rules violated Oregon law.
In an article published in a local newspaper on January 6, 1999, plaintiff characterized the reception of her by the police department as "pretty cold." She attributed it to being an outsider and to her efforts to initiate change in a department that had been managed by the same man for the previous twenty years. She stated that she did not think that the resistance she faced was because she was a women but rather because she was new to the area.
In early January 1999, a police officer extended an invitation to a housewarming party to all employees. The invitation could be read to specifically excluded plaintiff. Plaintiff summoned the officer to her office to ask him why she was not invited to the party.
Shortly thereafter, a police dispatcher sent the officer hosting the housewarming party an email that pictured a burned-out house and stated "Congratulations on your NEW HOME" and "F____ you asshole." The email indicated that "Doris sent it" and bore a return email address of "chiefbitch@hell.com." The officer who received the email brought it to the attention of plaintiff, who initiated a criminal investigation.
The email was sent between two home computers while the dispatcher was off duty.
Upon learning that the dispatcher sent the email, plaintiff notified the dispatcher that she intended to discipline him and that such discipline could include suspension without pay or dismissal. Bob Mack, the then-acting City Manager, placed the dispatcher on paid administrative leave pending the disciplinary process. The union became involved when procedural issues arose and took the position that, because the email was sent from a home computer during off-duty hours, the city had no authority to discipline the dispatcher in any manner. Eventually, the union and Mack reached an agreement to issue a warning to the dispatcher which would not be included in his personnel file. Thereafter, plaintiff inserted a statement into the dispatcher's performance evaluation, which was prepared by his immediate supervisor and was unqualifiedly positive, that the dispatcher had been recommended for termination as a result of the email incident. Plaintiff injected the negative statement despite a warning from her lieutenant that such action would violate the collective bargaining agreement between the city and the union. The union filed a grievance on behalf of the dispatcher and plaintiff agreed to remove her negative comments from the dispatcher's evaluation.
In May 1999, the City Council of Lincoln City expressed a desire to have an independent audit of the Lincoln City Police Department to determine the source of the many complaints about the department and to assist in resolving the outstanding issues. Plaintiff agreed to the audit and, eventually, Dick Walker was retained to perform the audit.
The audit report prepared by Dick Walker was presented to the City Council on August 19, 1999. In performing the audit, Walker conducted 37 individual interviews, interviewing some individuals a number of times. The audit made it clear that morale within the department was low and that the problems were caused primarily by the change in the Chief. Walker indicated that the change in personnel would have resulted in problems no matter who the new Chief was but he felt that plaintiff aggravated that inevitability. Walker did not make a recommendation on whether plaintiff should be terminated. He did state that if she stayed, she needed to recognize that, "because of her past management style, she bears a significant part of the responsibility for the internal problems at the Department" and that her "primary focus should be on changing her management style, since that is the area over which she has the most control." Specifically, Walker recommended that plaintiff should: 1) be more willing to consider different points of view and recognize that they are as valid as hers; 2) not act as quickly as she had in the past but make an effort to obtain a consensus and allow enough time for a consensus to develop; 3) recognize that she is not always right and acknowledge when she makes mistakes; 4) move from an "us and them" attitude to a we attitude; and 5) avoid making highly disparaging comments about the employees.
On November 23, 1999, plaintiff's job performance was reviewed by the interim City Manager, Del Cesar. Cesar had been serving as City Manager for only a month at the time of the evaluation. While preparing the performance review, Cesar interviewed a number of employees, only a few of which plaintiff considered her allies. The remainder were characterized by plaintiff as known and vocal opponents.
Cesar delineated a number of deficiencies in plaintiff's job performance creating a "tremendous amount of distrust and unhappy employees." Cesar opined that plaintiff's management style held a significant part of the responsibility for increasing problems in the department and that plaintiff's primary focus in the coming year should be to change her management style, including her attitude toward her employees. Cesar felt that plaintiff's performance, and the resulting problems in the department, justified "the highest level of discipline short of discharge." However, for "the good of the Department", Cesar elected to issue a written reprimand to plaintiff with a directive to take the criticism seriously. Cesar informed plaintiff that if she failed to make the changes identified, she would not continue as Chief. Plaintiff asserts that she did not have the opportunity to respond to the reprimand because Cesar left the City Manager's position almost immediately. However, the record contains a fivepage memorandum entitled "Response to Interim City Manager Cesar's Memo" in which plaintiff attempts to rebut the reprimand
The city hired David Hawker as City Manager effective December 1, 1999. On his first day on the job, plaintiff presented him with a memorandum labeled a "motion" in which plaintiff asked Hawker to remove the reprimand from her personnel file. Shortly thereafter, plaintiff provided Hawker with another memorandum outlining in detail plaintiff's opinion on why there were no problems in the department.
Hawker discussed the reprimand with plaintiff a number of times that month and, at plaintiff's request, with plaintiff's lieutenant and Chris Thomas, the City Attorney. At the end of the month, Hawker informed plaintiff that while he recognized there were some limitations on the value of the reprimand, it was evident to him that the problems described in the reprimand existed and that he would not remove the reprimand from plaintiff's file.
Shortly thereafter, the City Attorney prepared a couple of confidential memos to Hawker outlining the city's procedural requirements and the possible legal issues that would arise in the event Hawker wished to consider terminating or demoting plaintiff. The memos were written after Hawker expressed concern about plaintiff's statements to the City Council earlier that month and her reaction to him when he attempted to discuss the propriety of those statements with her.
In January 2000, Hawker conducted a survey among all the members of the department. The survey revealed that there were leadership problems within the department and that the employees felt that plaintiff was, at least in part, responsible for the bad morale in the department. Based on this survey and on Hawker's growing personal knowledge of plaintiff and her leadership skills, Hawker again declined to remove the reprimand after additional requests by plaintiff on August 2, 2000, and October 9, 2000. When she failed to obtain the desired results with Hawker, plaintiff appealed directly to Thomas in December 2000. Thomas advised plaintiff that he lacked to authority to remove the reprimand from her file.
On July 12, 2001, plaintiff sent an email to Hawker again requesting that the reprimand be removed. She reminded Hawker that she had asked formally on three prior occasions, and a number of times informally as well, and that she had not seen any results. Hawker responded in writing to plaintiff indicating that he had previously considered plaintiff's request and that no matter how many times plaintiff asked, the answer would remain the same. Hawker explained that the reprimand was Del Cesar's honest opinion of plaintiff's performance based on some reasonable diligence, that he shared in some of Cesar's concerns and that, based on the survey, most of the employees also concurred in the deficiencies noted in the reprimand Hawker recommended that plaintiff be less concerned about the reprimand and more concerned about improving her performance, especially in the areas of: 1) defensiveness to advice given by her superiors; 2) improving her knowledge of the job of Chief of Police in a small western city; 3) offering more thorough responses and recommendations to her superiors; 4) not being so quick to implement changes that have not been thoroughly considered; and 5) dealing with employees with a little more finesse.
Also in early July 2001, Hawker commented favorably on the way plaintiff looked in her uniform. The exact language used by Hawker is in dispute but it is evident that Hawker commented to two female employees that plaintiff looked nice in her police uniform. This was the only time Hawker commented on plaintiff's appearance.
On different occasions, plaintiff has stated that Hawker said the she looked both "attractive" and "nice" in her police uniform.
About the same time, Human Resources Manager Delane Engelstad contacted plaintiff at Hawker's request and inquired about her availability to attend a law enforcement seminar in Newport, Oregon. Engelstad informed plaintiff that Hawker wanted her to attend the entire seminar because he would be able to attend only select portions of the event. Plaintiff asked if she would be required to drive to the seminar with Hawker. Engelstad replied either "I don't know" or "Probably not, as Hawker was not going to attend the entire Seminar." Plaintiff considered the request for her to attend the seminar as an attempt by Hawker to set up a drive to Newport, Oregon, alone with plaintiff. Plaintiff considered this a follow-up to the unwelcome advance evidenced by Hawker's comment on her appearance.
Engelstad remembers that she told plaintiff that Hawker would not be attending the entire conference and that plaintiff would not be expected to travel with Hawker.
In response to the request that she attend the seminar, plaintiff forwarded the following email to Hawker on July 16, 2001:
I received my notice from Delane scheduling yourself and me to a joint seminar in Newport. After putting a few things together, it has finally dawned on me what is going on. The City has always fostered a hostile environment for their first female police chief. I knew shortly after your arrival that you were part of it. Now that I am a widow, I am an even easier target. What a sad state of humanity. Although you can order me to attend the seminar with you, I choose not tol [sic] drive alone with you.
Hawker responded immediately with the following email to plaintiff:
I have no idea what you are talking about — this is a conference I feel will be very beneficial, and unless you have a serious schedule conflict, I want you at the entire conference. As Delane indicated, my schedule gives me no choice but to pick and choose which topics I will attend.
My greater concern is your memo. It appears to be either insubordination or simply irrational. Perhaps the months of very difficult stress have accumulated to overflowing. If so, I can understand it. You have had to deal with the death of a spouse, major surgery, and changes in the department that are very difficult, and place an extra burden on you. If that is the case, you need to advise me of that so we can make some kind of adjustment, or give you an opportunity for some time off with pay to deal with it.
You have consistently enjoyed my support in spite of some performance deficiencies, and yet you now have decided that I am part of some grand conspiracy against you. You are trying my patience.
I can understand performance deficiencies as your experience has not been that of a chief, nor in a small community. But I also expect that deficiencies are recognized, and dealt with. It is beyond time to move forward and address issues in a positive manner.
You indicate that "The City has always fostered a hostile environment for their first female police chief." If you have any evidence of that, you need to present it to me so that I may take the appropriate action.
I very strongly suggest that you visit with a trusted advisor to review with you the e-mail you sent, and this response, as well as my previous mail on your deficiencies. You also need to communicate with me later this week after you have had a chance to think through this. That communication needs to give me some assurance that you are able to make sound and rational decisions, or ask for some time off with pay to deal with the issues.
Plaintiff responded with the following email to Hawker.
I am not surprised that you would accuse me of being hysterical. I assure you that unlike the stereotype, I am not a stressed out female. My entire life has been stress and I have learned to handle it well.
I am also not surprised that you would interpret my memo to suit your needs. If you would re-read it accurately, you will see that at no time did I ever refuse to go to the training. Alsthough [sic] the training is redundant, it will be a good refresher. The only thing I did refuse to do was drive down with you. I fail to see how placing myself in a situation of possible harm makes me insubordinate.
Since you claim to not know what I am talking about, I will explain. You are in a position of power over me. You have made it clear in your past e-mail (which I was ORDERED to shut up about) that you refuse to give me due process in addressing a grievous unjustice [sic] done to my professional and personal reputations that will ruin my years of hard work forever. Now within a week of that two very interesting things occur: First, you make a very uncharacteristically friendly comment at the Finance counter about "how attractive I look in my uniform." Then — after over a year and a half of not even so much as having coffee with me — you suddenly want to go to a seminar together. Add to that your loud and clear messages to me that you: don't want me to argue and that you have no respect for my qualifications. Add the fact that I need my job to support my children as a single mother. And finally, add to that my new found status as fresh prey to interested males. You do the math. This situation has all the foundation needed for quid pro quo sexual harassment. I refuse to be play [sic].
Hawker reported plaintiff's claim of sexual harassment to Thomas and asked for advice on how to proceed. On July 18, 2001, Thomas informed the Mayor of Lincoln City and the City Council of plaintiff's claim of harassment and of his intent to investigate the charges. Thomas also suggested that the charges made by plaintiff against Hawker raised questions about her present ability to serve as Chief.
Thomas asked for reports from plaintiff, Hawker, Engelstad and Sherry Correia, one of the employees that was present during Hawker's comment about plaintiff's appearance in her uniform. Plaintiff provided her report to Thomas on July 19, 2001, along with a letter from her attorney, Scott Elliott, suggesting that the matter be put to rest because plaintiff and Hawker "have too many important City issues to deal with to let this incident get in the way of their duties."
Thomas reported the results of his investigation to the Mayor and City Council on July 23, 2001. Thomas found that the investigation did not support plaintiff's version of the events at issue and concluded that plaintiff "either is imagining what in fact is not true about Hawker's intention or is deliberately attempting to attribute to him an intention that he did not have."
On July 25, 2001, Thomas submitted the following press release to the Lincoln City media:
The city counsel [sic] has reviewed a complaint, or threatened complaint, of Police Chief Doris Conley against City Manager Hawker. The complaint, or threatened complaint asserts that City Manager Hawker engaged in improper conduct toward Chief Conley. The council reviewed the complaint following an investigation by the city attorney, which included his obtaining written statements from all third-party witnesses * * *. Based on its review, the counsel [sic] finds that the complaint is completely unfounded and urges the city manager not to allow the assertion of the complaint to inhibit him from taking appropriate action in relation to department management.
On July 26, 2001, Hawker placed plaintiff on paid administrative leave based on concerns shared by himself, Thomas and the City Council with regard to plaintiff's ability to perform her job duties and pending "a full review to determine whether plaintiff had engaged in conduct that was inappropriate as Police Chief or management that is detrimental to the Department." On August 3, 2001, the union held a "Vote of No Confidence" with regard to plaintiff's ability to manage and lead the Lincoln City Police Department. Out of the 27 union members, 22 voted "no confidence," three members voted "confidence," and two members abstained.
While plaintiff was on paid administrative leave, Thomas engaged in a three-month long investigation into whether plaintiff's conduct as a police chief was satisfactory. Upon completion of the investigation, Thomas forwarded the report to Akin Blitz, a third-party law consultant, for review. Blitz concluded that "a City Manager could reasonably conclude that cause exists to terminate the employment of Chief Conley because of the disruption and dysfunctionality of the Police Department, and substantial evidence in the record which reflects the Chief's behavior and lack of interpersonal skills is the root cause of that dysfunction."
In late October 2001, Hawker forwarded the report to plaintiff and her attorney along with a memorandum advising plaintiff that he was considering terminating her employment with the city. Hawker informed plaintiff that the memo was considered a "pre-dismissal" notice under the city's personnel polices; that she would have the chance to respond to the charges or present mitigating circumstances in a meeting to be held November 1, 2001; and that she would have the right to appeal a decision to terminate her employment.
After postponing the meeting at plaintiff's request, the pre-termination hearing meeting was held on December 13, 2001. Hawker, Thomas, plaintiff and her counsel were present at the meeting. Plaintiff informed Hawker and Thomas that she had not read the charges against her or the documents contained in the report and failed to respond in any substantive way to the charges leveled against her. Plaintiff indicates that she was aware of the contents of the report and that she felt that any attempt to rebut the charges would be futile based on her past experience with Hawker, Thomas and the City Council.
Shortly thereafter, Thomas advised plaintiff that the city intended to terminate her employment and provided notice of her post-termination appeal rights. Plaintiff's counsel asked that she be allowed to resign rather than be terminated, which she was allowed to do.
Legal Standard
Rule 56 of the Federal Rules of Civil Procedure allows the granting 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 a judgment as a matter of law.
Fed.R.Civ.P. 56(c). "[T]he requirement is that there be nogenuine issue of material fact." Anthes v. Transworld Systems, Inc., 765 F. Supp. 162, 165 (Del. 1991) (citingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)) (emphasis in original).
The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is absent. Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant has met its burden, the onus is on the nonmovant to establish that there is a genuine issue of material fact. Id. at 324. In order to meet this burden, the nonmovant "may not rest upon the mere allegations or denials of [its] pleadings," but must instead "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324.
An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. On the other hand, if after the court has drawn all reasonable inferences in favor of the nonmoving party, "the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).
DISCUSSION
First Claim for Relief — Procedural Due Process
In her first claim for relief, plaintiff alleges that Hawker violated her rights under the Fifth and Fourteenth Amendments by terminating her employment without just cause and without due process. Defendants does not deny that plaintiff had a property interest in her employment and was entitled to due process before any adverse employment action could be taken. However, defendants contend that plaintiff was given all of the due process that she was entitled to.
Due process requires that an individual be afforded notice and opportunity for hearing before deprivation of a protected property interest. Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972). In the employment context, where a statute or contract confers an interest in continued employment, due process requires that the employee receive written or oral notice of the charges or complaints, an explanation of the evidence and an opportunity for the employee to be heard. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). Although the hearing "need not be elaborate," notice and opportunity for hearing are "essential requirements" that must be provided to the employee prior to termination. Id.; Clements v. Airport Authority of Washoe County, 69 F.3d 321, 332 (9th Cir. 1995).
Plaintiff argues that defendants' violation of her due process rights began with the reprimand The record reveals that the reprimand was merely a disciplinary procedure and a way to put plaintiff on notice that she needed to improve her management skills if she intended to keep her job. Cesar indicated in the reprimand that he considered her deficiencies to warrant any discipline short of termination, but that he was not considering that as an option at that time. In fact, plaintiff continued in her employment as Chief for more than a year and one-half after the reprimand was issued. Additionally, plaintiff was allowed to, and did in fact, respond to the reprimand in writing and by asking Hawker to remove the reprimand from her file. Hawker engaged in a review of the reprimand on a number occasions and denied plaintiff's request, finding that the reprimand was justified.
Similarly, the undisputed facts clearly establish that defendants provided plaintiff with notice and an opportunity to be heard prior to her termination. In fact, the record shows that plaintiff received written notice of the charges against her and the possibility of her termination in late October. At the same time, plaintiff was provided with three notebooks of evidence used by Hawker to support the possible termination. Plaintiff requested additional time to respond and the pre-termination hearing was rescheduled to mid-December. Plaintiff was provided adequate opportunity to rebut the charges and argue her position at the hearing. Thus, plaintiff received adequate due process prior to her termination.
Second Claim for Relief — First Amendment Retaliation
Plaintiff asserts that defendants retaliated against her after she informed them of the discriminatory employment practices occurring within the city. Plaintiff states that she voiced her concern to Hawker about the difficulties she faced with in the department because of her gender on "several occasions" prior to the July 2001. The record does not support this statement. Both plaintiff and Hawker remember plaintiff making a single statement to Hawker to the effect that she felt he was treating her like a little girl and she didn't like it. There is no clear evidence that plaintiff ever made any other complaints to Hawker about his conduct, or that of anyone in the department, with the exception of the statements made in July 2001. Accordingly, the only statements properly before the court are those made by plaintiff to Hawker in July 2001, with regard to his comment about her appearance and her impression that he wanted to travel to Newport with her.
Public employees cannot be forced to relinquish their First Amendment rights simply because they accept the benefit of public employment. Tucker v. State of California Dep't of Educ., 97 F.3d 1204, 1211 (9th Cir. 1996) (citing Pickering v. Board of Educ., 391 U.S. 563 (1968)). To establish a claim that a public employer has unlawfully infringed his or her constitutionally protected interest in freedom of speech, a public employee must show that the speech in question was constitutionally protected, and was a substantial or motivating reason for an adverse employment action. Chateaubriand v. Gaspard, 97 F.3d 1218, 1222 (9th Cir. 1996) (citing Board of County Comm'rs v. Umbehr, 116 S.Ct. 2342, 2347 (1996)). If the employee meets this burden, the government employer may avoid liability by establishing that it would have taken the same action regardless of the protected conduct. Id.
In order to be subject to First Amendment protection, a public employee's speech must address matters of public concern. Id. (citing Connick v. Myers, 461 U.S. 138, 146 (1983)). The court determines, as a matter of law, whether the speech allegedly giving rise to an adverse employment decision is protected.Wheaton v. Webb-Petett, 931 F.2d 613, 618 (9th Cir. 1991).
"A matter of public concern" is a matter that fairly relates to political, social or other aspects of the community. Connick, 461 U.S. at 146. It does not include speech relating to purely personal or internal administrative matters. Id. at 154.
Thus, when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.561 U.S. at 147. In Connick, the Court held that plaintiff's speech did not involve issues of public concern where the speech did not seek to inform the public either that the public employer was "not discharging its governmental responsibilities" or "to bring to light actual or potential wrongdoing or breach of public trust." Id. at 148. Rather, the court found that plaintiff was merely "upset with the status quo" and that the discharge did not violate any first amendment right. Id.
The protected speech plaintiff is relying on is her e-mail to Hawker in which she states that his actions bordered on quid pro quo sexual harassment. Plaintiff represented that she made this statement confidentially to Hawker to avoid what she perceived could be a problem. She was upset that Hawker forwarded her email to Thomas and considered it wrong to make the statement public. It is evident from plaintiff's own statements that she did not intend to address a public concern by informing Hawker that she thought his actions bordered on sexual harassment. It was a private matter between plaintiff and Hawker and plaintiff did not want it made public. The court finds that the speech was not a matter of public concern and, therefore, does not support a First Amendment retaliation claim. Secondly, the evidence submitted by plaintiff is insufficient to establish a causal link demonstrating that the speech in question was a substantial or motivating reason for the adverse employment action.
Third Claim for Relief — Deprivation of Liberty
In support of her third claim for relief, plaintiff alleges that her position as the first female Chief for the City caused her, and her administration, to be subject to an unprecedented amount of media attention and that the investigation of the charges against her were "scrutinized more closely than male employees and was judged by different and extraordinary standards." Based on this conduct, plaintiff claims that "a stigma of personal and professional dishonesty, immorality and malfeasance in office was imposed upon plaintiff, which seriously damaged her standing and ability to perform her duties as police chief, and her career and future in her profession." Plaintiff asserts that this conduct resulted in her termination without cause.
It is difficult for the court to decipher exactly what claim plaintiff is asserting in her third claim for relief. Plaintiff does not independently address this claim in her memorandum in opposition to defendants' motion for summary judgment and, accordingly, does not give the court any guidance there. Based on plaintiff's failure to adequately identify this claim, the court finds that this claim is either not supported by the record or is subsumed into other claims that the court specifically addresses in this opinion.
It is clear from the record that plaintiff was just as responsible as defendants, if not more, for the media attention. For example, it was plaintiff who wanted the audit to be presented at a public session of the City Council. Additionally, plaintiff issued press releases on a number of problems developing in her department and discussed the union complaint with the press on a number of occasions. Also, plaintiff has presented no evidence that anything that Hawker did was based on her gender. Hawker's first alleged reference to plaintiff's gender occurred in July 2001, well after the media attention began and plaintiff's management difficulties were enumerated.
If plaintiff is asserting a wrongful discharge claim based on the publicity surrounding her tenure as chief of police generated by her gender, that issue is adequately addressed in plaintiff's sexual harassment and wrongful discharge claims. If plaintiff is asserting a claim for deprivation of her liberty interests in absence of due process, the discussion of due process above applies equally to this claim.
Fourth Claim for Relief — Sex Discrimination
Plaintiff contends that defendants treated plaintiff differently because she was a women. A prima facie case of sex discrimination may be demonstrated by direct evidence of discriminatory intent or may be based on a presumption arising from the factors such as those set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The factors are: (1) membership in a protected class; (2) application and qualification for the job or satisfactory performance of the job; (3) an employment decision, such as demotion, termination, or failure to hire made despite the satisfactory performance or qualifications; and (4) replacement in the position by an individual of comparable qualification who is not a member of the protected class. Id.
"Once a prima facie case has been made, the burden of production shifts to the defendant, who must offer evidence that the adverse action was taken for other than impermissibly discriminatory reasons." Id. (citations omitted). "Once the defendant fulfills this burden of production by offering a legitimate, nondiscriminatory reason for its employment decision, the . . . presumption of unlawful discrimination `simply drops out of the picture.'" Id. (citing St Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2749 (1993)).
In response to defendant's evidence of nondiscriminatory reasons, plaintiff must produce "substantial" circumstantial evidence that the defendants proffered nondiscriminatory reasons are pretextual or "very little" direct evidence of discriminatory motivation. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217 (9th Cir. 1998). The "mere existence of a prima facie case . . . does not preclude summary judgment." McDonnell Douglas, 411 U.S. at 802. When the plaintiff fails to present evidence to refute the defendant's legitimate explanation, summary judgment is appropriate even though the plaintiff may have established a minimal prima facie case. Id. at 890-91. However, where the plaintiff has established a prima facie case with direct evidence of a discriminatory motive, "very little such evidence is necessary to raise a genuine issue of fact regarding an employer's motive; any indication of discriminatory motive * * * may suffice to raise a question that can only be resolved by a factfinder." Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1409 (quoting Lowe v. Monrovia, 775 F.2d 998, 1009 (9th Cir. 1986).
Plaintiff is unable to support her claim of sex discrimination because she cannot establish that she was satisfactorily performing her job. From the time of the audit, the record is replete with evidence that plaintiff was not performing her job duties in a satisfactory manner. Plaintiff had been advised on numerous occasions that she needed to work on her people skills and her management style if she expected to retain her job as chief of police. It is true that the first performance review was complimentary of plaintiff's performance and that she had co-workers that praised her style, but for the most part, the city and its leaders were not pleased with plaintiff's performance from early on and advised plaintiff of her deficiencies and her need to improve her performance.
Fifth Claim for Relief — Hostile Environment/Sexual Harassment
To establish the existence of a sexually hostile environment, Plaintiff must show that: "(1) she was subjected to verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, (3) the conduct was sufficiently severe or pervasive [so as] to alter the conditions of . . . employment and create an abusive working environment." Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995) (citations omitted). Under the first prong of this test, Plaintiff must come forward with evidence that the hostile environment exists because of her membership in a protected class ( i.e. sex). Sischo-Nownejad v. Merced Comm. College Dist., 934 F.2d 1104, 1109 (9th Cir. 1991). The third prong is judged under the "reasonable woman" standard, See Steiner v. Showboat Operating Co., 25 F.3d 1459, 1462 (9th Cir. 1994), cert. denied, 513 U.S. 1082 (1995), and under a "totality of the circumstances." Fuller, 47 F.2d at 1527. In reviewing such claims, the court should consider both the severity and the pervasiveness of the sexually hostile conduct. Further, Plaintiff must show that the employer failed to take adequate remedial action after being informed of the problem.Steiner, 25 F.3d at 1463.
The only conduct alleged by plaintiff to be sexually harassing is Hawker's July 2001 comment and his request that plaintiff attend the Newport conference. The comment, which was that plaintiff looked "nice" or "attractive" in her uniform, was not sufficient to create a "hostile environment."
Hawker's request that plaintiff attend the seminar in Newport, Oregon, was not sexual. Hawker felt that plaintiff would benefit from attending the seminar and, as he was not able to attend the whole seminar, he felt it appropriate to ask her to attend. The fact that plaintiff felt that Hawker had an ulterior motive, which was to allow Hawker to spend some one-on-one time with plaintiff, is not relevant. This was not a "reasonable" reaction to the request.
Despite plaintiff's reaction, these two acts do not amount to sexual harassment.
Sixth Claim for Relief — Title VII Retaliation
Plaintiff alleges that the city retaliated against her for exercising her rights to be free from sexual harassment and gender-based discrimination in the workplace. Title VII makes it unlawful for an employer to discriminate against an employee because that employee "has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under federal law, plaintiff must demonstrate "(1) that she was engaging in a protected activity, (2) that she suffered an adverse employment decision, and (3) that there was a causal link between her activity and the employment decision." Trent v. Valley Elec. Ass'n. Inc., 41 F.3d 524, 526 (9th Cir. 1994) (citing EEOC v. Hacienda Hotel, 881 F.2d 1504, 1513-14 (9th Cir. 1989)).
As discussed above, plaintiff has failed to establish that she was engaged in protected speech by complaining to Hawker that he was nearing the level of sexual harassment with his July 2001 conduct. To some degree, this same analysis applies to plaintiff's claim for retaliation. However, even assuming that plaintiff was engaged in protected activity when she advised Hawker confidentially that she thought he was engaging in sexual harassment, plaintiff is unable to establish any causal relationship between the activity and her termination.
The deficiencies that plaintiff was ultimately terminated for began early in plaintiff's reign as Police Chief. The audit, the reprimand, the survey and Hawker's July 12, 2001, email document defendants' concerns about plaintiff's performance and give them ample grounds to terminate her. Plaintiff argues that Hawker himself admits that the accusations against him were a factor in his decision to suspend, and eventually, terminate her. In reality, Hawker stated that once the investigation of the harassment charges had been completed and the charges were found to be unsubstantiated, he indirectly considered plaintiff's accusations, which he viewed as evidence that plaintiff was unwilling to accept criticism or direction, as one of five or six factors in suspending plaintiff. The fact that plaintiff's statement was considered as supporting the previously documented tendency of plaintiff to go on the offensive whenever faced with criticism does not create a causal relationship between plaintiff's statement and her suspension or termination.
Seventh Claim for Relief — State Sexual Harassment
Ninth Claim for Relief — State Retaliation
Eighth Claim for Relief — State Sex Discrimination
Oregon courts have consistently held that case law developed by the federal courts in the interpretation of Title VII can be used to interpret Chapter 659 of the Oregon Revised Statutes because the statutory schemes are similar and Chapter 659 is patterned after Title VII. Vaughn v. Pacific N.W. Bell Tel. Co., 289 Or. 73, 86, 611 P.2d 281, 289 (1980); Seitz v. Albina Human Resources Center, 100 Or. App. 665, 672-73 (1990); Goldsborough v. Eagle Crest Partners, Ltd., 105 Or. App. 499, 503 (1991), aff'd, 314 Or. 336 (1992); Winnett v. City of Portland, 118 Or. App. 437, 442 (1993); Mains v. II Morrow, Inc., 128 Or. App. 625, 634 (1994). Plaintiff has failed to state a prima facie claim for discrimination, harassment or retaliation under federal law and, therefore, is unable to do so under the state statutes as well.
Tenth Claim for Relief — Wrongful Termination
In support of her wrongful termination claim, plaintiff asserts that "Defendant City's termination of Plaintiff's employment without notice and in violation of the City's own policies and practices was in retaliation for her attempts to exercise important employment-related rights." Under Oregon law, absent a contractual, statutory, or constitutional requirement to the contrary, employment is at will. Carlson v. Crater Lake Lumber Co., 103 Or. App. 190, 193 (1990) (citing Patton v. J.C. Penney, 301 Or. 117, 120 (1986)). Oregon courts recognize two exceptions to this general rule: where an employee is discharged for either (1) fulfilling an important societal obligation, or (2) exercising an employment related right of important public interest. Id. (citing Holien v. Sears, Roebuck Co., 298 Or. 76, 86 (1984)).
Plaintiff is unable to establish that she was either (1) fulfilling an important societal obligation, or (2) exercising an employment related right of important public interest. Additionally, defendants have sufficient evidence to establish that they terminated plaintiff because of her performance deficiencies.
Eleventh Claim for Relief — Intentional Infliction of Emotional Distress
Under Oregon law, a claim for intentional infliction of emotional distress only lies where the defendant intended to inflict severe emotional distress on the plaintiff, the defendant's acts were the cause of severe emotional distress, and the defendant's acts were an "extraordinary transgression of the bounds of socially tolerable conduct." Madani v. Kendall Ford, Inc., 312 Or. 198, 203 (1991). It is the defendants' acts, rather than their motives, that must be outrageous. Id. at 204.
The Oregon courts have defined the term "intent" in this context to include only those situations where the defendant "`desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct.'" McGanty v. Staudenraus, 321 Or. 532, 550 (1995) (quoting Restatement (Second) of Torts, § 46, comment (i) (1965)). The conduct must be "so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."Christofferson v. Church of Scientology, 57 Or. App. 203, 211 (1982) (quoting Restatement (Second) on Torts, § 46, comment (d) (1965)).
All of the conduct complained of by plaintiff was normal business activity. The fact that the union decided to file the labor actions, that plaintiff was reprimanded, that Hawker performed the survey and that her superiors engaged in discussions about her performance do not establish that defendants went out of their way to inflict emotional harm on plaintiff. While plaintiff may not have liked that this was occurring, it is well within the bounds of social decency and occurs on a daily basis in all walks of life and business. Additionally, plaintiff has failed to present any evidence that defendants engaged in any of these actions with the intent to harm plaintiff emotionally.
CONCLUSION
Defendants' motion (#27) for summary judgment is GRANTED in its entirety. The above captioned matter is DISMISSED.
IT IS SO ORDERED.