Opinion
6:18-cv-01626-MK
08-29-2023
WILLIAM EWING, Plaintiff, v. CITY OF TOLEDO; CRAIG MARTIN; BILLIE JO SMITH; and DAVID JAMES ROBINSON, Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI (He / Him), United States Magistrate Judge.
Plaintiff William Ewing (“Plaintiff”) filed this action (ECF No. 1) alleging whistleblower violations, defamation, slander, and civil rights violations under 42 U.S.C. § 1983 against defendants City of Toledo (the “City”), Craig Martin, Billie Jo Smith, and David Robinson (collectively, “Defendants”). Defendants filed a Second Motion for Summary Judgment on March 30, 2023. Plaintiff filed a response that contains a Motion to Strike Defendants' Exhibits 2, 7, 21, 27, 29, 32, 33, and 34 to the Campbell Declaration. For the reasons below, Defendants' Second Motion for Summary Judgment (ECF No. 111) should be granted in part. Plaintiff's Motion to Strike (ECF No. 120) should be denied.
BACKGROUND
This case arises out of an adverse employment action made against Plaintiff by Defendants. Plaintiff was hired in 1999 as Fire Chief of the City of Toledo. Second Am. Compl. (“SAC”) ¶ 9, ECF No. 51. Defendant Craig Martin was hired in August of 2016 as the Interim City Manager of the City of Toledo. Id. at ¶ 10. Plaintiff was critical of Martin's management “from almost the beginning of Martin's employments” Id. at ¶ 15. Plaintiff regularly expressed disagreement with Martin's decisions regarding the city budget, including Martin's plans to spend money on the City pool and the expenditure of City funds on a new police station Id.
In August of 2017, Martin was accused of intimidation, harassment, and discrimination by a female employee. Id. ¶ 18. Following the accusation, the City retained an independent consultant, Jill Goldsmith of Workplace Solutions Northwest, to perform an internal investigation. ECF No. 111 at 13. As part of the investigation, the consultant went through employee's email correspondences and interviewed several City employees. SAC at ¶ 18. The investigation findings were compiled into a final report (the “Goldsmith report”) and presented to Martin. The report revealed that Plaintiff routinely mocked and denigrated Martin in email communications with other employees, including Nancy Bryant and the then-Finance Director, Polly Chavarria. Id.
After reviewing the Goldsmith Report, Chavarria resigned by taking an early retirement in December 2017. ECF No. 120 at 12. Plaintiff received a notice of impending discipline and potential termination on October 24. Plaintiff responded with a letter on October 26, apologizing for the emails to Bryant and Chavarria and requesting that he be allowed to keep his job. ECF No. 120 at 11-12. Plaintiff was subsequently suspended without pay from November 13-17, 2017. Id. Upon returning to work, Plaintiff was placed on a personal improvement plan (“PIP”) for 120 days that largely focused on professionalism and cordial communications while representing the City of Toledo. Id. In the 120 days that followed, Martin did not counsel Plaintiff on any violation of the PIP, nor did he indicate that Plaintiff was not in compliance with the PIP.
In January 2018, Martin initiated a budgeting process for the purposes of proposing a City budget to the City Council. SAC at ¶ 32. Martin added a “Personal Services” section to Plaintiff's professional responsibilities, which included dealing with salaries, insurance, Social Security costs, and retirement. Id. at ¶ 33. Plaintiff communicated to Martin that he was “not doing what he was supposed to do as the budget officer and was not providing accurate budget information...” Id. Plaintiff reached out to Chavarria, now no longer a City employee, for assistance preparing a budget spreadsheet. Id. at ¶ 37. After discovering Plaintiff's fire department figures were not included in Martin's March 2018 budget draft, Plaintiff became “even more alarmed about the budget process and the impact on the tax payers of the City of Toledo.” Id. at ¶¶ 38-39. Plaintiff requested that Chavarria review the budget and identify any errors. Id.
On May 14, 2018, Chavarria reported concerns about the City budget to members of City Council, who shared the concerns with Martin. Id. at ¶ 40. On May 17, 2018, Martin confronted Plaintiff and asked if he knew who had given Chavarria the City's financial information. Id. at ¶ 42. Plaintiff admitted that he permitted Chavarria to review the financial information. Id. Around June 4, 2018, Martin gave Plaintiff a notice of potential termination. Id. at ¶ 43. Plaintiff was given an opportunity to be heard and was subsequently terminated on June 13, 2018. ECF No. 111 at 16. On or around June 22, 2018, defendant James Robinson sent a letter to the Department of Justice requesting a criminal investigation of Chavarria and Plaintiff's conduct, noting that “our assessment of their conduct ... demonstrates culpable criminal conduct.” Id. at 18.
Plaintiff filed this action on September 5, 2018, alleging whistleblower violations under ORS 659A.199, 659A.203, and 659A.030(1)(f); defamation, slander, and civil rights violations 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 claims. In his response, Plaintiff moves to strike several documents attached as exhibits to Defendants' motion.
I. Plaintiff's “Motion to Strike”
Plaintiff raises a “Motion to Strike” in his response briefing, asking the Court to strike from the record an email from Plaintiff to a third party, Plaintiff's text messages, the Goldsmith Report, and documents related to a domestic violence charge against Plaintiff. Plaintiff challenges these various exhibits as inadmissible under various Federal Rules of Evidence that exclude hearsay and irrelevant materials.
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 various challenged documents, the Court overrules Plaintiff's evidentiary objection because Plaintiff has not shown that these documents 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 Claims of Whistleblower Retaliation
Plaintiff alleges claims of whistleblower retaliation against defendants Martin, Robinson, and Smith in their individual capacities. SAC at ¶¶ 62-67. The Ninth Circuit follows a five-step balancing inquiry to determine whether an employer impermissibly retaliated against an employee for protected speech. Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013). “In order to sustain a claim against a government employer for violation of the First Amendment, an employee must show: (1) that he or she engaged in protected speech; (2) that the employer took adverse employment action; and (3) that his or her speech was a substantial or motivating factor for the adverse employment action.” Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) (internal quotations omitted); see also Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). If a plaintiff satisfies those three elements, the Court must evaluate whether the state had adequate justification for treating the employee differently than other members of the general public; and, lastly, whether the state would have taken the adverse employment action even absent the protected speech. Dahlia, 735 F.3d at 1067. At the last two steps, the burden shifts to the defendant government to show that the state's legitimate administrative interests outweigh an employee's First Amendment rights. Eng, 552 F.3d at 1071.
Defendants argue that they are entitled to summary judgment on Plaintiff's § 1983 claim of First Amendment retaliation because (1) Plaintiff's speech was not protected; (2) there was no causal link between Plaintiff's speech and his termination; and (3) there was evidence of misconduct justifying Plaintiff's termination. Defendants also assert qualified immunity.
A. Whistleblower Retaliation by Martin
1. Protected Speech
Defendants first argue that Plaintiff cannot state a claim of First Amendment Retaliation because he spoke in his capacity as Fire Chief and not as a private citizen. A critical inquiry in determining whether an employee's speech expresses a matter of public concern is “whether the employee spoke in order to bring wrongdoing to light or merely to further some purely private interest.” Havekost v. U.S. Dept. of Navy, 925 F.2d 316, 318 (9th Cir. 1991).
In Garcetti v. Ceballos, the Supreme Court held that the claimant, a district attorney, did not speak as a citizen when he wrote a memo arguing for the dismissal of a case based on governmental misconduct. 547 U.S. 410, 421-22 (2006). The Supreme Court reasoned that because the claimant wrote similar memos as a part of his regular job duties, he was acting within his scope as an employee when he authored the memo. Id. The Garcetti court also noted that the claimant's supervisors were within their authority to evaluate his performance and terminate him as “ the First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities.” Id. at 411. Because the plaintiff in Garcetti did not speak as a citizen when he wrote the memo, his speech was not protected by the First Amendment. Id. at 421.
As in Garcetti, Plaintiff's access of the City's financial records was within his regular job duties. Plaintiff had a history of working with the former City Finance Director to prepare the fire department's budget. SAC at ¶ 36. At deposition, Plaintiff was asked if he was acting in his role as Fire Chief when he accessed the financial information he later shared with the former City Finance Director Polly Chavarria. ECF No. 128-2 at 7. Plaintiff responded in the affirmative. Id. Defendants urge the Court to conclude that Plaintiff accessed the financial records when acting in his capacity as fire chief and thus did not engage in the protected speech afforded to private citizens. ECF No. 128 at 8-9, citing Garcetti, 547 U.S. at 421-22.
However, this does not end the Court's analysis. While Plaintiff admitted to acting in his capacity as Fire Chief when he accessed the financial information, the SAC alleges that when Plaintiff shared the City's financial information with Chavarria, then a non-employee, he was acting in his capacity as a concerned private citizen. The question before the Court is therefore whether Plaintiff's publication of City financial documents to a non-employee constitutes private speech protected by the First Amendment.
Here, Plaintiff has submitted an affidavit (Second Decl. Ewing, ECF No. 121) evincing that he intended to speak as a private citizen when he disclosed City documents to Chavarria, which raises a question of fact as to whether Plaintiff's speech is protected under the First Amendment. Defendants nevertheless argue that Plaintiff's affidavit was created “...for the express purpose of resisting summary judgment” and that, therefore, must be excluded from the Court's consideration. ECF No. 128, citing Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 267 (9th Cir. 1991). While the Court must resolve all reasonable doubts as to the existence of genuine issues of material fact against Defendants, the Court may exclude testimony that “flatly contradicts earlier testimony in an attempt to ‘create' an issue of fact and avoid summary judgment. T.W. Elec., 809 F.2d at 630; Wang v. Sony Pictures, 721 Fed.Appx. 634, 636 (9th Cir. 2018); Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 267 (9th Cir. 1991).
Although the Ninth Circuit acknowledges that a party typically cannot create an issue of fact via an affidavit contradicting prior deposition testimony for the purposes of defeating summary judgment, a contradiction does not automatically dispose of an affidavit. Id. at 267. In Kennedy, the Ninth Circuit reversed a lower court's grant of summary judgment with instructions to make a factual determination as to whether the claimant's affidavit contradicting prior deposition testimony was a “sham.” Kennedy, 952 F.2d at 267. Kennedy does not mandate the exclusion of Plaintiff's affidavit because it is consistent with Plaintiff's allegations in the SAC and therefore does not appear to be a “sham.” More significantly, Plaintiff's deposition does not contradict Plaintiff's affidavit.
At deposition, Defendants' counsel had the following exchange with Plaintiff:
Counsel: “[Y]ou weren't under the impression that you were, you know, disclosing information about theft or malfeasance, or anything like that, you just couldn't find the information?”
Plaintiff: “Right.”
Counsel: “And when you turned that over to Ms. Chavarria, you weren't reporting theft or malfeasance, or somebody violating rules or policies, you were hoping she could find, identify, and locate the reserve fund you were looking for?” Plaintiff: “Right.”ECF No. 128-2 at 7. Here, when asked in his deposition why he took the department's financial data and forwarded it to Chavarria, Plaintiff explained that it was “Because I wanted [Chavarria] to know that I was going to be eligible for that 40 hours of payout.” ECF No. 111-2 at 8. Plaintiff also confirmed at deposition that his motive for accessing the fire department's financial documents was not to disclose “information about theft or malfeasance,” but rather because he was “looking for the six-digit reserve fund I had for the fire department, and where my balances were.” Id. at 7. Plaintiff alleges in his Response Brief that he “made statements about the City of Toledo's finances,” and that this speech therefore merits First Amendment protection. Plaintiff also filed an affidavit stating that he “reached out to Chavarria to help me calculate the personnel costs and to assist in figuring out the discrepancies I saw in the budgets” Second Decl. Ewing at ¶ 22.
While Defendants argue that Plaintiff's deposition testimony reveals that Plaintiff's speech was not protected, Plaintiff never denied that the information sought was a matter of public concern. Plaintiff's deposition testimony therefore does not contradict Plaintiff's later affidavit regarding his purpose in disclosing City information to a non-employee. Plaintiff's affidavit is therefore not a “sham” and is not excluded from the Court's analysis. Kennedy, 952 F.3d at 267. Making all inferences from the underlying facts in “the light most favorable to the nonmoving party,” there remains a genuine issue of fact as to the nature of Plaintiff's speech. T.W. Elec., 809 F.2d at 630.
Defendants argue on reply that as a “high-ranking official,” Plaintiff's disagreements with his employer's “legislative or administrative vision” is not protected under the First Amendment, citing Moran v. Washington, 147 F.3d 839, 850 (9th Cir. 1998). ECF No. 128 at 8. Defendants misstate the Ninth Circuit's holding. That case involved a former deputy commissioner for consumer advocacy and outreach who criticized the state's proposed community outreach plan. In reversing the lower court's denial of summary judgment for defendants based on qualified immunity, the Ninth Circuit in Moran noted that whether a public employee's speech is protected by the First Amendment at all depends upon a particularized balancing test based on unique facts presented in each case. Id. at 850. The Moran court found that the plaintiff's role as deputy commissioner to the defendant, a commissioner, weighed in favor of the defendant's argument for qualified immunity. Because the reasoning in Moran pertains to a district court's denial of summary judgment based on qualified immunity, the Court considers Defendants' argument based on Moran below.
2. Causal Link between Termination and Protected Speech
Defendants next argue that even if Plaintiff's speech was protected under the First Amendment, Plaintiff's termination was unrelated to his speech and therefore cannot sustain a whistleblower retaliation claim. In addition to showing that he engaged in protected speech and suffered an adverse employment action, Plaintiff must show that his speech was a “substantial or motivating factor for the adverse employment action.” Coszalter, 320 F.3d at 973 (internal quotations omitted); see also Eng, 552 F.3d at 1070. Here, Defendants argue that (1) Plaintiff's allegedly protected speech was not a substantial or motivating factor in his termination; and (2) even if Plaintiff was terminated because of his allegedly protected speech, “Plaintiff would have been terminated in any event.” ECF No. 128 at 9-10.
i. Substantial or motivating factor
Defendants argue that Plaintiff's termination was a result of Plaintiff's disrespectful behavior and decision to disclose financial information in violation of City policy. ECF No. 128 at 11 (“shortly after a serious disciplinary episode, having recently finished a Performance Improvement Plan, Plaintiff violated the City's policies about public records disclosures”). Whether a claimant's constitutionally protected speech was a motivating factor in a defendant's decision to terminate employment is a question of fact. Eng, 552 F.3d 1071. The Court is satisfied that Plaintiff has raised an issue of fact as to Martin's motivation in terminating his employment.
In Johnson v. Multnomah County, Or., the Ninth Circuit vacated and remanded the district court's grant of summary judgment in a First Amendment unlawful termination case because it found that many of the relevant facts were still in dispute. 48 F.3d 420, 425 (9th Cir. 1995). The defendants in Johnson had argued that the claimant spoke maliciously about her supervisor due to workplace disagreements. Id. However, the Ninth Circuit noted that the claimant had presented evidence that she was motivated by an interest in the welfare of her job and frustration towards her manager's inadequate job performance. Id. Similarly, the Plaintiff in this case alleges that he was terminated for publicizing Martin's alleged mismanagement of City finances and has provided evidence sufficient to support an inference that Martin opposed Plaintiff's speech. See Keyser v. Sacramento City Unified School Dist., 265 F.3d 741, 751-52 (9th Cir. 2001) (evidence that the employer actually opposed protected speech can create issue of fact with respect to causation). Plaintiff has thus raised an issue of fact regarding Martin's motivation for terminating his employment with the City. Coszalter, 320 F.3d at 973.
ii. Adverse action with no protected speech
Defendants also allege that they would have taken the same employment action against Plaintiff even absent Plaintiff's allegedly protected speech, citing Plaintiff's workplace misconduct, disrespectful emails, violation of City policy, and generally hostile attitude. In evaluating a whistleblower retaliation claim, courts consider whether the government defendants would have taken the adverse employment action even absent the allegedly protected speech. See Dahlia, 735 F.3d at 1067; Eng, 552 F.3d at 1074.
Defendants also argue that because Plaintiff was later arrested for a domestic dispute, his employment would have eventually been terminated. Because this event occurred after Plaintiff's termination, however, it is not relevant to the Court's analysis of the likelihood of an adverse employment action absent the allegedly protected speech. See Dahlia, 735 F.3d at 1067. While Defendants argue that this and other evidence acquired during this litigation will “limit Plaintiff's remedy,” this is not an issue that affects summary judgment.
Here, Plaintiff's performance improvement plan had been expired for over three months when Martin discovered that Plaintiff had disclosed City financial information to Chavarria without attorney review. ECF No. 120 at 16-17. Plaintiff has also provided evidence that Martin “became irate and started yelling” when Plaintiff revealed that he had shared financial information with Chavarria, who went on to criticize Martin's budget to three City Council members. Second Decl. Ewing at ¶ 30. Plaintiff also provided evidence that on another occasion Martin exclaimed - apparently referring to all department heads - “You people are terrible. I hate you.” ECF No. 111 at 7. The record is also undisputed that, despite Plaintiff's workplace conduct issues revealed in the Goldsmith report and communicated to Martin prior to Plaintiff's termination, Plaintiff's employment was only terminated after it was revealed that he shared financial information with Chavarria, information that formed the basis of opposition to Martin's handling of the City budget and performance as City manager. In sum, Plaintiff has provided evidence to support a reasonable inference that Martin terminated his employment based on his allegedly protected speech and not for any other alleged workplace misconduct.
Defendants argue that Plaintiff would have been fired regardless of his allegedly protected speech based on a text message exchange between Plaintiff and Chavarria that was acquired through discovery in this litigation. For a defendant to prevail on an after-acquired evidence theory, it must show that “the wrongdoing was of such a severity that the employee would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 362-63 (1995). Here, the relevant text messages were exchanged after Chavarria resigned. Given the similar content of the emails revealed in the Goldsmith Report (which did not result in Plaintiff's termination), it is a genuine question of fact whether Plaintiff's text message exchange with Chavarria, then a non-employee, could constitute an independent and nondiscriminatory ground for Plaintiff's termination. Drawing all reasonable inference in the light most favorable to Plaintiff, then, there remains an issue of fact as to whether Martin would have terminated Plaintiff's employment but-for his allegedly protected speech. Summary judgment is therefore inappropriate as to Plaintiff's whistleblower claim against Martin.
B. Whistleblower Retaliation by Smith and Robinson
Regarding defendants Smith and Robinson, Plaintiff has not raised an issue of fact to defeat summary judgment on his First Amendment claim. With respect to Plaintiff's whistleblower retaliation claims against Smith and Robinson, the question before the Court is whether (1) Smith or Robinson took adverse employment action against Plaintiff; and (2) whether Plaintiff's speech was a substantial or motivating factor for the adverse employment action.” Coszalter, 320 F.3d at 973. If Plaintiff satisfies those elements, the Court must evaluate whether the defendants had adequate justification for treating Plaintiff differently than other members of the general public; and, lastly, whether these defendants would have taken the adverse employment action even absent the protected speech. Dahlia, 735 F.3d at 1067. At the last two steps, the burden shifts to the defendants to show that the state's legitimate administrative interests outweigh an employee's First Amendment rights. Eng, 552 F.3d at 1071.
1. No adverse employment action
“An adverse employment action is an action ‘reasonably likely to deter employees from engaging in protected activity.'” Coszalter, 320 F.3d at 976 (citation omitted). Unwarranted investigations, harassment, and reprimands can constitute adverse employment actions. See id. Although there is no specified period in which an adverse employment action can automatically be held retaliatory, protected speech occurring “within three to eight months of the adverse employment action is easily within a time range that can support an inference of retaliation.” Howard v. City of Coos Bay, 871 F.3d 1032, 1046 (9th Cir. 2017) (quoting Coszalter, 320 F.3d at 978). Even adverse employment actions occurring nearly a year after protected speech have been found to support a First Amendment retaliation claim. Howard, 871 F.3d at 1046 (citing Allen v. Iranon, 283 F.3d 1070, 1078 (9th Cir. 2002)). Whether an adverse employment action is retaliatory in First Amendment claims is a factual question to be decided based on timing and surrounding circumstances. Howard, 871 F.3d at 1046 (citing Cozsalter, 320 F.3d at 978).
Here, while Plaintiff has provided evidence that Smith was aware of Plaintiff's allegedly protected speech, there is no evidence in the record to suggest that Smith took part in any of Martin's disciplinary decisions against Plaintiff. Further, this Court previously determined that Smith's dissemination of flyers accusing Plaintiff of lying cannot constitute an adverse employment action because it occurred after Plaintiff was terminated. See ECF 77 at 11. Similarly, while Plaintiff has alleged that, in his position as City Attorney, Robinson “participated in, provided guidance and influenced the decisions made by and on behalf of the City” that adversely affected Plaintiff's employment, there is no evidence in the record to support this allegation. SAC at ¶ 8. The events upon which Plaintiff relies, including Robinson's statements during the June 20, 2018 City Council meeting and his June 22, 2018 letter to the Oregon Department of Justice requesting an investigation, occurred after Plaintiff's termination and thus cannot constitute adverse employment actions. See ECF 77 at 11. On this record, summary judgment is appropriate on Plaintiff's First Amendment retaliation claims against Smith and Robinson.
D. Qualified Immunity
Because the Court finds that summary judgment should be granted on Plaintiff's First Amendment claim with respect to defendants Smith and Robinson, the sole remaining issue on that claim is whether Martin is entitled to qualified immunity. Qualified immunity shields government actors from suit so long as their conduct does not violate clearly established rights of which a reasonable person would have known. See Pearson v. Callahan, 555 U.S. 223, 231 (2009). To determine whether a defendant is entitled to qualified immunity, the Court considers: (1) whether the defendant violated a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation. Id. at 232. 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 allege that Martin is entitled to qualified immunity because: (1) Plaintiff did not engage in protected speech as he was acting in his official capacity as a Fire Chief; (2) even if Plaintiff did engage in protected speech, he would have been terminated anyway; and (3) Martin's conduct did not violate a clearly established right of which a reasonable official would have known.
As an initial matter, the Court rejects Defendants' first two arguments because the Court finds a genuine factual dispute as to whether Plaintiff engaged in protected speech and whether that speech was the but-for cause of his termination. Plaintiff has provided evidence, discussed above, to support an inference that he spoke on a matter of public concern in his personal capacity when he shared city information with a former employee. Viewing the facts in the light most favorable to Plaintiff, Plaintiff has raised an issue for trial as to whether Martin violated Plaintiff's First Amendment rights by retaliating against him for his allegedly protected speech.
The Court must therefore determine whether, as a matter of law, Martin's conduct did not violate a clearly established right of which a reasonable official would have known. Here, Defendants acknowledge that First Amendment rights of public employees are “clearly established.” ECF No. 111 at 10 (“[t]he government cannot take adverse action against an employee for the reasons that the employee exercises his free speech rights”). On the evidence presented by Plaintiff, there is a genuine issue of fact as to whether Martin terminated Plaintiff's employment for exercising his First Amendment rights. As the right to be free from retaliation for protected speech was clearly established at the time of Plaintiff's termination, the Court cannot conclude as a matter of law that Martin did not violate a clearly established right of which a reasonable official would have known. In the Notice of Termination issued to Plaintiff, Martin explained he was not terminating Plaintiff due to concerns Plaintiff had about the budget or the memo that went to City Council criticizing Martin's budget. Id. at 16. Martin's express disclaim of any constitutionally suspect reasons for terminating Plaintiff could support reasonable inferences that (1) Martin was aware of Plaintiff's clearly established rights under the First Amendment, and (2) that Martin did not reasonably believe his conduct to be lawful. On this record, Martin is not entitled to summary judgment based on qualified immunity on Plaintiff's First Amendment claim. Pearson, 555 U.S. at 231.
II. State Law Claims
Defendants next argue that they are entitled to summary judgment on Plaintiff's remaining state law claims against Martin, Smith, Robinson, and the City for whistleblower retaliation and aiding and abetting unlawful discrimination and/or retaliation. Defendants also ask the Court to substitute the City as the defendant on all of Plaintiff's state law claims pursuant to the damages requirement set forth in ORS 30.265(4).
A. Oregon Tort Claims Act Damages Requirement
In a previous Opinion and Order, this Court noted that ORS 30.265(4) requires a claimant to allege damages above the statutory cap provided by the Oregon Tort Claims Act in order to bring an action against individuals. ECF No. 77 at 16. Plaintiff now alleges that his damages “could easily exceed $682,800,” ECF No. 120 at 35. Although Plaintiff has not amended his SAC to allege specific damages, ORS 30.265(4) “does not state that such amount must be alleged in the complaint.” Achcar-Winkels v. Lake Oswego School Dist., 2017 WL 2291338, at *10 (noting that where the amount of damages has not yet been specified, request for substitution of parties should be denied). The Court therefore declines to substitute the City of Toledo as the defendant in all of Plaintiff's state law claims.
B. ORS 659A.199 Claims
Plaintiff's SAC alleges violations of ORS 659A.199 by defendants Martin, Smith, and Robinson. ORS 659A.199(1) provides:
It is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.
Plaintiff's affidavit affirms that he believed Martin “was not performing his duties imposed by Oregon law” when he shared City financial information with Chavarria in February 2018. ECF 131 at 4-5. Plaintiff has also provided evidence that Martin “became irate and started yelling” when Plaintiff disclosed that he had shared this information with Chavarria. Id. at 6-7. Because a reasonable factfinder could infer that Plaintiff was fired based on a good faith report of information that he believed to be evidence of a violation of Oregon law, summary judgment is not appropriate on Plaintiff's 659A.199 claim against Martin. As discussed above, however, because Plaintiff has not provided any evidence to suggest that Robinson or Smith took adverse employment actions against Plaintiff prior to his termination, summary judgment should be granted on Plaintiff's 659A.199 claims against Smith and Robinson.
C. ORS 659A.030(1)(f) Claims
Plaintiff also alleges claims against Martin, Robinson, and the City under ORS 659A.030(1)(f). ORS 659A.030(1)(f) makes it an unlawful employment practice:
This Court previously granted Defendants' motion to dismiss Plaintiff's ORS 659.030(1)(f) claim against Smith with prejudice. ECF No. 77 at 26.
For any person to discharge, expel or otherwise discriminate against any other person because that other person has opposed any unlawful practice, or because that other person has filed a complaint, testified or assisted in any proceeding under this chapter or has attempted to do so.
The statute “reflects the intention . . . of promoting unfettered access to remedial statutory mechanisms by prohibiting employers” from treating employees adversely when an employee engages in a “broad range of protected activities.” Portland State U. Ch. of Amer. Ass'n of U. Profs. v. Portland State U., 352 Or. 697, 712-13 (2012) (en banc). To establish a prima facie claim under the statute, a plaintiff must allege they: (1) engaged in protected activity, such as filing a complaint regarding violations of law or otherwise opposing an unlawful practice; (2) was subjected to an adverse employment action; and (3) the plaintiff's statutorily protected activity was a substantial factor in the employer's adverse employment. Sereno-Morales v. Cascade Food Inc., 819 F.Supp.2d 1148, 1153 (D. Or. 2011); see also Portland State U. Ch. of Amer. Ass'n of U. Profs., 352 Or. at 712; Medina v. State, 278 Or.App. 579, 588 (2016).
Retaliation claims under ORS 659A.030(1)(f) are premised on the plaintiff opposing any unlawful practice, or filing complaints, testifying, or assisting in proceedings. Sereno-Morales, 819 F. 18 Supp. 2d at 1154. In Portland State U. Ch. of Amer. Ass'n of U. Profs., the Court found that filing complaints with regulatory agencies was a protected activity. Id. at 717. “‘Opposition based on the employee's ‘reasonable belief' that the employer has engaged in an unlawful employment practice' suffices to show that the employee engaged in protected activity.” Lindsey v. Clatskanie People's Utility Dist., 140 F.Supp.3d 1077, 1086-87 (D. Or. 2015) (quoting Equal Emp. Opportunity Comm'n v. Crown Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir. 1983) (citation omitted)); see also Moyo v. Gomez, 32 F.3d 1382, 1385 (9th Cir. 1994) amended 40 F.3d 982 (9th Cir. 1994) (“An erroneous belief that an employer engaged in an unlawful employment practice is reasonable . . . if premised on a mistake made in good faith.”) (emphasis in original). But “in the Ninth Circuit, an employee's statement does not constitute protected activity unless it refers to some practice by the employer that is allegedly unlawful.” Sereno-Morales, 819 F.Supp.2d at 1153 (quotation altered). For the employee's protected activity to be a substantial factor in the employer taking an adverse employment action against the employee, the employer's wrongful purpose must be a factor that makes a difference in the decision to take the adverse action against the employee. Bahri v. Home Depot USA, Inc., 242 F.Supp.2d 922, 953 (D. Or. 2002) (citing Estes v. Lewis and Clark College, 152 Or.App. 372, 381 (1998)).
Here, Plaintiff has presented evidence that he opposed an unlawful practice by Martin when he opposed Martin's termination of fellow employee Nancy Bryant, in violation of ORS 659A.030(1)(f). Decl. Ewing, ECF No. 19 at ¶ 7 (“I told Martin that the termination of my coworker, Nancy Bryant “was not right” and that I did not agree with how Martin had handled the situation”). Two months after Plaintiff expressed his opposition to Bryant's termination, he received a Notice of Potential Termination alleging “unprofessionalism and disrespectful communication” for criticizing Martin's job performance. Id. at ¶ 8. As this Court noted in its prior Findings and Recommendation, the Oregon Supreme Court has held that allegations of post-employment retaliation that “have a clear nexus to [a] plaintiff's prior employment” can be actionable under ORS 659A.030(f). ECF 77 at 21, citing McLaughlin v. Wilson, 365 Or. 535, 554 (2019). Here, although Robinson's allegedly retaliatory actions took place after Plaintiff was fired, Plaintiff has raised a question of fact as to whether these acts have a clear nexus to Plaintiff's prior employment with the City, because Robinson's post-termination actions -reporting Plaintiff to the DOJ and encouraging the initiation of criminal proceedings - were made based on Plaintiff's actions as Fire Chief. See McLaughlin, 365 Or. At 553-54. Drawing all reasonable inferences in Plaintiff's favor, summary judgment is not appropriate as to Plaintiff's ORS 659A.030(1)(f) claims against Robinson.
For the reasons discussed above, Plaintiff has also raised a genuine issue of fact as to whether Martin unlawfully retaliated against Plaintiff for his disclosure of financial records to Chavarria. For these reasons, Defendants' motion to dismiss Plaintiff's ORS 659A.030(1)(f) claim against Martin should also be denied.
Defendants do not argue for summary judgment on this claim on behalf of the City. Plaintiff's ORS 659A.030(1)(f) claim against the City therefore remains operative as well.
Plaintiff also alleges that Smith and Robinson “aided and/or abetted” in whistleblower retaliation in violation of ORS 659A.030(1)(g). SAC at ¶ 80. As an initial matter, while Plaintiff appears to argue that Martin can be liable for aiding and abetting under this statute, no such allegation is made in the SAC. See SAC at ¶ 77-85; ECF No. 120 at 35. The Court therefore considers the sufficiency of the evidence regarding Plaintiff's allegations against Smith and Robinson.
Defendants argue that Plaintiff's ORS 659A.030(1)(g) claim cannot be sustained because a City “cannot aid and abet itself.” In his response briefing, Plaintiff provides no argument regarding his aid and abet claims against Smith and Robinson. See ECF No. 120. Defendants note that Plaintiff has provided no evidence to support an inference of retaliatory conduct by Smith and Robinson occurring prior to the termination of Plaintiff's employment, and the Court agrees. Conduct that occurs after an offense cannot constitute “aiding and abetting” the underlying offense. State v. Wilson, 240 Or.App. 475, 487 (2011). On this record, summary judgment should be granted on Plaintiff's aid and abet claims against Smith and Robinson.
RECOMMENDATION
For the reasons above, Defendants' motion for summary judgment (ECF No. 111) should be GRANTED IN PART. Plaintiff's claims against defendants Smith and Robinson for First Amendment violations and for violations of ORS 659A.030(1)(g) and ORS 659A.199 should be dismissed with prejudice. Defendants' motion for summary judgment on Plaintiff's First Amendment, ORS 659A.199, claims against Martin should be DENIED. Defendants' motion for summary judgment on Plaintiff's ORS 659A.030(1)(f) claims against Martin, Robinson, and the City 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).