Opinion
Civil No. 01-1726-HA
March 11, 2003
Shelley D. Russell, Patty T. Rissberger, Crispin Associates, Portland, OR, for Plaintiff.
Thomas Sponsler, County Attorney, Agnes Sowle, Deputy County Attorney, Jenny M. Morf, Assistant County Attorney, Portland, OR, for Defendants.
OPINION and ORDER
Defendants move for summary judgment seeking dismissal of plaintiff's complaint in its entirety. Defendants' motion for summary judgment (doc. #33) is GRANTED. Defendants' motion to strike plaintiff's supplemental concise statement of facts (doc. #48) is DENIED.
BACKGROUND
Plaintiff was employed by defendant Multnomah County (the "County") in the Department of Adult and Community Justice (the "Department") from 1988 until she was terminated on October 14, 2000. At the time of her termination, she was a Program Administrator with management responsibilities. After appealing her termination, she was reinstated to her position with the County on August 5, 2001, by order of the Merit Systems Service Council. Michael Haines was her direct supervisor. Jim Rood was Haines' supervisor. Defendant Elyse Clawson ("Clawson") was Director of the Department.
In June 2000, plaintiff had a negative encounter at the Department with a subordinate employee, Tom Grinnell. The Department's response to plaintiff's complaints included negotiating an "Agreement of Cooperation" (the "Agreement"). Both plaintiff and Grinnell were to sign the Agreement as part of a settlement of Grinnell's Bureau of Labor and Industries' complaint that alleged discriminatory practices at the Department (unrelated to the encounter with plaintiff). The Agreement, which was the last page of the entire settlement, stated:
It is mutually agreed by Thomas H. Grinnell and Cathreen Connell that they shall each set aside any disputes or disagreements they may have experienced in the past, shall hereafter treat each other with professional respect and courtesy, and shall work together to accomplish the goals of the Department.
Defendant's Concise Statement of Facts ¶ 4.
Plaintiff objected to signing the Agreement, which she first learned about at an August 17, 2000, meeting. She believed it implied she was at fault in some way, that she should be allowed to read the entire settlement of Grinnell's complaint, despite its confidentiality, and that there were alternatives to such an Agreement. In the course of voicing her objections to signing the Agreement, plaintiff cited other instances of "real" discrimination at the Department that she believed were more meritorious than Grinnell's complaints.
In any case, after at least six more meetings regarding the Agreement, plaintiff was terminated on October 14, 2000, for insubordination for refusing to sign the Agreement. Plaintiff brings this action alleging violations of 18 U.S.C. § 1983, for deprivation of a property interest without due process and retaliation for speech protected by the First Amendment. In addition, plaintiff brings a wrongful termination claim under state law. Defendant moves for summary judgment on all three claims.
STANDARDS
A party is entitled to summary judgment as a matter of law if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Bahn v. NME Hosp's, Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).
The moving party carries the initial burden of proof. The party meets this burden by identifying portions of the record on file which demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id. The facts on which the opponent relies must be admissible at trial, although they need not be presented in admissible form for the purposes of opposing the summary judgment motion. Id.
The court must view the evidence in the light most favorable to the non-moving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. Of North America, 638 F.2d 136, 140 (9th Cir. 1981).
Deference to the non-moving party does have some limit. The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). The "mere existence of a scintilla of evidence in support of the plaintiff's position would be insufficient." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). Therefore, where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Electric Industrial Co. v. Zenith Radio Corporation, 475 U.S. 574, 587 (1986).
DISCUSSION 1. Claims Against Multnomah County and Clawson in Her Official Capacity
Plaintiff alleges that Clawson and the County violated plaintiff's constitutional rights when Clawson decided to terminate plaintiff's employment and failed to reinstate her. In order to establish liability against these parties under 42 U.S.C. § 1983, plaintiff must show "that the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official governmental policy." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Defendants seek to dismiss the claims against the County and Clawson in her official capacity. Defendants argue that plaintiff has failed to show that Clawson was an official policymaker for the County.
While Trevino lists two other ways to establish liability under Section 1983 (that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or custom, or that an official with final policy-making authority ratified a subordinate's unconstitutional decision), neither are relevant to the facts alleged in plaintiff's complaint.
The crucial inquiry is not whether Clawson had final policymaking authority over any matter whatsoever, but whether she had final policymaking authority or had been delegated such authority specifically with regard to the County's employment policies. See Bouman v. Block, 940 F.3d 1211, 1231 (9th Cir. 1991). If not, neither the County nor Clawson in her official capacity can be held liable under Section 1983. See Monell v. Dep't of Social Serv. of the City of New York, 436 U.S. 658, 694 (1978). An official "may have discretion to hire and fire employees without also being the county official responsible for establishing county employment policy." Pembaur v. City of Cinncinati, 475 U.S. 469, 483 (1986). An official has been "delegated final policymaking authority where the official's discretionary decision is not constrained by policies not of that official's making and not subject to review by the municipality's authorized policymakers." Ulrich v. City and County of San Francisco, 308 F.3d 968, 986 (9th Cir. 2002) (internal quotations omitted).
State law determines whether an official is a final policymaker whose acts constitute official governmental policy. City of St. Louis v. Praprotnik, 485 U.S. 112, 124-25 (1988); Pembaur, 475 U.S. at 483. The County Charter, Chapter 6.10, states that the County Chair is the chief "personnel officer of the County" and has the "sole authority to appoint, order, direct and discharge administrative officers and employees of the county. . . ." Although the Charter states that the Chair "[m]ay delegate his or her administrative powers," plaintiff has failed to produce any evidence that the Chair delegated his or her authority to make employment policy to Clawson. Id.
Because plaintiff has failed to produce any legal or factual evidence that Clawson made final and official employment policy for the County, the first and second claims against the County and Clawson in her official capacity are dismissed. Claims against Clawson in her individual capacity are discussed below.
2. Denial of Property Right Without Due Process
To defeat summary judgment on plaintiff's Section 1983 claim against Clawson in her individual capacity, plaintiff must show a genuine issue of material fact as to whether Clawson acted under color of state law to deprive plaintiff of a right, privilege, or immunity secured by the Constitution or federal law. See Lopez v. Dep't of Health Serv., 939 F.2d 881, 883 (9th Cir. 1991). Plaintiff's Claim One alleges that Clawson violated Section 1983 when she terminated plaintiff without just cause and failed to reinstate her, depriving her of a property right without due process.
There is no question that Clawson was acting under color of state law when she exercised her discretion as Executive Director of the County's Department of Community Justice to terminate plaintiff's employment. Defendants also concede that plaintiff had a property interest in her continued employment at the County, but they argue that plaintiff's claim fails because the County afforded plaintiff adequate pretermination and post-termination due process and that the decision to terminate plaintiff was not a violation of substantive due process.
a. Procedural Due Process
The Supreme Court has stated the kind of pretermination procedures due process requires in the context of public employment:
The essential requirements of due process . . . are notice and opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46 (1985) (internal citations omitted). The Ninth Circuit requires both notice to the employee as to the pendency or contemplation of a dismissal action and notice as to the charges and evidence which give rise to that concern. Matthews v. Harney County, 819 F.2d 889, 892 (1987).
Plaintiff received notice that the County was contemplating dismissal and notice of the reasons for that action, that is, her refusal to sign the Agreement. In addition, she had numerous opportunities to respond to these charges. Between August 15 and October 11, Plaintiff attended no less than six meetings at which the Agreement was discussed. On August 15, plaintiff learned that there would be "some sort of an agreement" that "Mr. Grinnell and myself would both be expected to sign." Plaintiff's Deposition at 69. On August 22, plaintiff met with Joan Fuller and expressed her "discomfort" that "they were going to ask [her] to sign something." Id. at 71-2. On September 6, plaintiff met with her supervisors to discuss alternatives to her signing the Agreement.
Id. at 48. On September 15, plaintiff again met with Fuller and admits that at that point "the whole thing had [her] worried." Id. at 57. On September 25, Clawson informed plaintiff that "she was advised to direct [plaintiff] to sign [the] agreement." Plaintiff's Response to Defendant's Interrogatories at No. 6.
Finally, on October 11, plaintiff "was directed" to sign the Agreement. Plaintiff's Deposition at 54. A supervisor informed her "that failure to sign the document at that time would constitute insubordination." Id. at 98-99. Presumably in addition to what common sense would tell someone who has been a manager for a number of years, plaintiff admits she was specifically aware of a personnel rule that listed insubordination as a cause for termination. Id at 29. She asked what the consequences would be for failure to sign, and was told that she would know within 24 hours. She was informed that "there may be serious consequences." Id. at 101. On October 12, plaintiff asked her supervisor if she was being terminated because "he had a horrible seriousness to his tone," when he called to schedule yet another meeting with plaintiff for October 13. Although her supervisor stated that he could not tell her, plaintiff removed personal items from her office, told a coworker that she was being terminated, and called in sick the next day, rather than attend the October 13 meeting that had been scheduled, where plaintiff would have had yet another opportunity to address the charges of insubordination. Her supervisor delivered her termination letter to her home on October 13, one day before the termination was effective on October 14.
In light of the foregoing discussion and plaintiff's admission that she was in fact on notice of her imminent termination, the court finds that there is no genuine issue of fact with regard to whether plaintiff received notice of the charges against her, whether she had notice of her imminent dismissal, or whether she had an opportunity to respond to the charges of insubordination. She received adequate pretermination due process.
Furthermore, post-deprivation due process requirements were satisfied. In response to defendant's motion for summary judgment, plaintiff argues only one basis for her claim that the post-deprivation due process afforded was inadequate. She asserts that she was entitled to have her termination reviewed by impartial decision-makers and that Clawson, who was involved in the post-termination process, was biased against her.
It is unclear whether she asserts this claim against Clawson in her individual capacity or against the County and Clawson in her official capacity on some other theory of Section 1983 liability. Regardless, plaintiff's claim fails because although Clawson initially refused to reinstate plaintiff after the hearing officer's ruling, it is undisputed that the County's Merit Systems Service Counsel later rescinded plaintiff's termination. Even if the court assumes Clawson's bias, plaintiff makes no allegation that the Merit Counsel, the body ultimately responsible for hearing plaintiff's final appeal and reinstating her, was biased. Her claim that post-deprivation process was inadequate is without merit.
b. Substantive Due Process
Plaintiff argues that "it is well-established that a substantive due process claim exists upon a showing that the termination decision was arbitrary and capricious and with no rational connection between the employer's interests and the interest which the employer allegedly seeks to further through its actions." In fact, the Ninth Circuit has never held that a public employee may maintain an action for substantive due process stemming from a wrongful termination. See McCarroll v. County of Mono, 213 F.3d 642 (9th Cir. 2000) (unpublished) (citing Portman v. County of Santa Clara, 995 F.2d 898, 908 (9th Cir. 1993)). It is therefore an open question whether this circuit recognizes plaintiff's substantive due process claim.
In those Circuits that do recognize a substantive due process right in public employment, a plaintiff must show: (1) that she had a property interest in the employment; and (2) the public employer's termination of that interest was arbitrary or capricious. Harrington v. Harris, 118 F.3d 359, 368 (5th Cir. 1997); see also Moore v. Warwich Public Sch. Dist. No. 29, 794 F.2d 322, 329 (8th Cir. 1986) (substantive due process right to be free from arbitrary and capricious state action in public employment context). "If state action is so arbitrary and capricious as to be irrational, its infringement on a constitutionally protected interest may violate substantive due process rights." Harrington, 118 F.3d at 368 (quoting Neuwirth v. Louisiana State Bd. of Dentistry, 845 F.2d 553, 558 (5th Cir. 1988)).
The court finds as a matter of law that Clawson's decision to terminate plaintiff did not violate plaintiff's substantive due process rights, assuming they are recognized in this context. While reasonable minds may differ as to whether plaintiff should have been forced to sign the Agreement, the County's position on the matter is not completely unrelated to the goals and directives of the Department and is not "so arbitrary and capricious as to be irrational." Id. The County had a reasonable interest in protecting the confidentiality of the settlement with Grinnell, as well as securing promises that future interactions between the employees would be professional and respectful. No reasonable factfinder could decide that the County's actions violated plaintiff's substantive due process rights.
3. Retaliation for Exercise of First Amendment Rights
Plaintiff claims that Clawson terminated her to punish her for speech protected by the First Amendment. Plaintiff must show the following:
(1) [she] was subjected to an adverse employment action . . ., (2) [she] engaged in speech that was constitutionally protected because it touched on a matter of public concern and (3) the protected expression was a substantial motivating factor for the adverse action.
Ulrich v. City and County of San Francisco, 308 F.3d 968, 976 (9th Cir. 2002). There is no question that plaintiff was subject to an adverse employment action. The court must decide whether there is any issue of material fact as to whether plaintiff's speech was protected or whether it was a substantial motivating factor for her termination.
The court need not consider whether plaintiff's speech was constitutionally protected because plaintiff has failed to come forth with any evidence to show that her speech was a substantial motivating factor in Clawson's decision to terminate her. Defendants have satisfied their initial burden on summary judgment, identifying portions of the record that demonstrate that no genuine issue of material fact exists as to the legitimate motivation for plaintiff's termination. Once this initial burden is satisfied, the burden of production shifts to the plaintiff to demonstrate that there remains an issue of fact to be tried. Celotex, 477 U.S. at 322-24 (1986). Plaintiff has put forth no evidence of Clawson's allegedly retaliatory motivation in her memorandum, response to defendant's concise statement of facts, or her own affidavit. Indeed, when asked whether she believes she was terminated for something she said, plaintiff responded, "I really couldn't say." Plaintiff's Deposition at 135.
4. Wrongful Termination Against Defendant Multnomah County
Defendant moves for summary judgment on Claim Three, arguing that the available and adequate Section 1983 remedy precludes the wrongful discharge claim. See Draper v. Astoria Sch. Dist. No. 1C, 995 F. Supp. 1122, 1130 (D.Or. 1998). Plaintiff fails to respond to this argument in any fashion. Claim Three is dismissed.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment (doc. #33) is GRANTED. Defendants' motion to strike plaintiff's supplemental concise statement of facts (doc. #48) is DENIED.
IT IS SO ORDERED.