Opinion
Civil No. 02-1505-MO.
May 11, 2004
OPINION ORDER
INTRODUCTION
Plaintiff, Lea Lakeside-Scott ("Lakeside-Scott"), claims that her former employer, defendant Multnomah County, and former supervisor, defendant Jann Brown ("Brown"), terminated her in retaliation for disclosing to her immediate supervisor, Monna Hogue ("Hogue"), that: (1) her co-workers were violating published County policies pertaining to use of email and voicemail; (2) Brown favored gay and lesbian employees in hiring and/or promoting; and (3) Brown violated County and non-County funding source policies when awarding service contracts. As a result, in the Amended Complaint, Lakeside-Scott alleges that Multnomah County and Brown violated 42 U.S.C. § 1983 (First Claim) and Multnomah County violated Oregon's Whistleblower Act (Second Claim). Lakeside-Scott seeks to recover special damages, reinstatement (or, in the alternative, lost future wages and fringe benefits), noneconomic damages, punitive damages, attorney fees, costs, disbursements and a prevailing party fee.
This court has federal question jurisdiction over the federal statutory claim pursuant to 28 U.S.C. § 1331 and §§ 1343(3) (4) and supplemental jurisdiction over the state law claim pursuant to 28 U.S.C. § 1367. Defendants now move for summary judgment (docket #39). For the reasons that follow, defendants' motion is granted in part and denied in part.
FACTS
Both parties submitted a concise statement of facts in excess of five pages. L.R. 56.1(d) states in relevant part: "Unless approved by the court in advance, the concise statement may not be longer than five (5) pages. Statements in excess of that amount may be returned by the Court with direction for counsel to further condense the statement." In this instance, I consider both submissions in their entirety.
The court views the evidence in the light most favorable to the nonmoving party. A review of all the materials submitted by the parties, including affidavits, declarations, and deposition excerpts, reveal the following facts.
I. Background
On August 11, 1997, Lakeside-Scott began working as an Information Systems Specialist II in Multnomah County's Department of Community Justice ("DCJ"). Lakeside-Scott's position included staffing the Help Desk, answering computer-related questions, and providing desktop software and hardware support for DCJ employees. Unlike most employees, Lakeside-Scott's position allowed her special administrative rights in accessing Multnomah County's computer system; however, her access was not unlimited.
Lakeside-Scott was not in management and had no supervisory duties. She was represented by Multnomah County Employees Union, Local 88. The union agreement in force during the relevant period permits employee termination "in good faith for cause . . . after the supervisor gives written notice of the action and cause to the employee. . . ." (Morf Aff, Ex 10, p. 3). Lakeside-Scott was competent at her job and never formally disciplined.
Lakeside-Scott's direct supervisor was Hogue, Information Systems Supervisor. Hogue reported to Dan Gorton ("Gorton"), Network Services Manager. Gorton, in turn, reported to Brown, Information Technologies Manager Senior, and Brown reported to Joanne Fuller ("Fuller"), Department Director. As Director, Fuller was responsible for establishing the goals and objectives of the department and had the authority to hire and terminate department employees. Fuller did not draft employment policy for Multnomah County.
II. Pre-Termination
Lakeside-Scott alleges the following series of events that she claims, when taken together, amount to a pattern of retaliation.
A. Lakeside-Scott's Journal
In early 1998, Lakeside-Scott began keeping a journal to send to her union representative. This journal became "a continuing project, which at the end [Lakeside-Scott] was preparing for [her] attorney." (Lakeside-Scott Depo, p. 11). In 2000, Lakeside-Scott discovered how to track employee computer misuse of Multnomah County email and was told by Hogue to keep copies of the email. Also in 2000, Lakeside-Scott learned how to access employee calendars that were not password protected.
In early 2001, Multnomah County's server was becoming overloaded. Each employee was instructed to transfer files to a new "archive.pst" file location. When Lakeside-Scott did so, she tested her transfer and "accidentally" discovered 800 email folders. Lakeside-Scott accessed and copied "thousands" of pages from these email folders. The 167-page journal contains references to personal email and calendar excerpts of numerous co-workers, including Lakeside-Scott's supervisors and other managers.
B. Lakeside-Scott's Request for Ergonomic Accommodation
In 1998, Lakeside-Scott began requesting ergonomic accommodation due to her use of tri-focal glasses. Her supervisors attempted but failed to completely address her continued requests for accommodation until August 23, 2001, when Brown immediately approved a request from Gorton to order $1,672 in new ergonomic office equipment. The equipment took six weeks for delivery and was installed on October 17, 2001. This equipment proved to be "great" for Lakeside-Scott. (Lakeside-Scott Depo, pp. 115, 117).
C. Lakeside-Scott's Request for Reclassification
In 1998, prior to the commencement of Lakeside-Scott's employment, an outside consultant conducted an assessment of job classifications within the DCJ Information Services department. Lakeside-Scott's job was reclassified, resulting in an increase in pay for the Information Systems Specialist II position. Dissatisfied with the results of the reclassification study, in late 1998 Lakeside-Scott requested a review of this determination. On January 20, 1999, Lakeside-Scott was notified by letter from Jennifer Huntsman of Multnomah County Classification and Compensation division as follows: "I have reviewed the classification of your position and agree with the original IT Study's results, allocating your position to that of IS Specialist II. The duties of your position have not changed in a way to warrant reallocation to a different classification." (Morf Ex 16, p. 1).
Lakeside-Scott also complained to Brown about this reclassification determination. However, because Lakeside-Scott had previously filed a union request, Brown was "dismissive," stating that the reclassification decision had been made and that "if [Lakeside-Scott] wasn't happy . . . [then she] had alternative choices." (Lakeside-Scott Depo, pp. 127, 144-47; Complaint ¶ 9(e)). Brown did not articulate any "alternative choices," but Lakeside-Scott interpreted Brown's statement as an attempt to get Lakeside-Scott to leave Multnomah County employment.
D. Lakeside-Scott's Promotional Opportunities
Lakeside-Scott applied for promotional opportunities in the Department on five occasions: twice in 1998, twice in 1999, and once in May 2001. Lakeside-Scott does not know why she was not selected in the 1998 and 1999 promotional processes. However, she was informed that she was not promoted in May 2001 to the Network Analysis Position because of her lack of follow-through on projects.
There were two separate screenings for this position. First, management conducted an examination, which consisted of reviewing written materials and scoring it based on the criteria provided. [Lakeside-]Scott received a ranking of number five out of five candidates. Next, a panel of employees who worked outside of the department interviewed the candidates. The panel ranked [Lakeside-]Scott number one out of five candidates. Based upon previous experience with [Lakeside-]Scott's inability to take the initiative and follow through on assigned projects, management decided to promote another employee within the divisions. (Supp. Aff. of Lakeside-Scott, Ex 11, p. 8).
Brown accepted Gorton and Hogue's recommendation to promote an applicant other than Lakeside-Scott.
E. Tasks Outside Lakeside-Scott's Classification
In 1998, Lakeside-Scott was directed to perform tasks outside of her classification. However, tasks such as server checks and training were within her area of expertise and Lakeside-Scott was "happy" to do these tasks. (Lakeside-Scott Depo, pp. 137, 144).
F. Lakeside-Scott's Complaints
Lakeside-Scott communicated with Hogue, orally and in writing, on numerous occasions about her dissatisfaction with the conditions of her employment. For example, she frequently complained to Hogue about hiring and promotional practices, including Brown's propensity to hire lesbian and gay employees. Also, Lakeside-Scott often complained to Hogue that she believed other Multnomah County employees were violating work policies with regard to the use of computers and equipment. Hogue advised Lakeside-Scott to keep a record of alleged work policy violations. Also during this time, she further complained to Hogue that Brown was inappropriately awarding service contracts. She frequently discussed these inappropriate practices with co-workers and generally "believed [she] was being treated differently." (Id. at pp. 104-09).
Hogue discussed with Gorton on "numerous occasions" Lakeside-Scott's dissatisfaction and complaints, but did not discuss Lakeside-Scott's complaints with Brown or Fuller. (Hogue 31(a) Responses, pp. 5-6). However, Gorton discussed with Brown Lakeside-Scott's complaints that she was being treated unfairly. G. Other Events
Brown was dismissive at least once towards Lakeside-Scott in her attempt to contribute or participate in meetings. Hogue and Gorton made Lakeside-Scott uncomfortable by requiring her to keep a record of what she was doing from 6-8:00 a.m., implying that her early morning shift would be eliminated. Also, Hogue and Gorton singled out Lakeside-Scott, advising her to discontinue computer use and work time for her volunteer project even though other employees constantly used their work computers for personal use during work time. Hogue suggested that Lakeside-Scott seek counseling and assisted in the paperwork necessary to initiate counseling, and then later made a "caustic comment" about Lakeside-Scott's counseling appointment.
Subsequently, on October 2, 2001, Lakeside-Scott filed a Complaint with the Oregon Bureau of Labor and Industries ("BOLI"). On November 9, 2001, Lakeside-Scott emailed 123 pages of her journal to a coworker, stating "Here you go !" (Morf Aff, Ex 18).
III. Investigation
On November 20, 2001, Fuller learned that Lakeside-Scott had accessed email and calendars of other employees and immediately initiated an investigation and ordered Brown to place Lakeside-Scott on paid administrative leave. The "minute" Lakeside-Scott was notified that she was on administrative leave, Gorton and Rich Scott walked Lakeside-Scott back to her desk and she "quickly hit delete" of the version of the journal she had previously emailed to her coworker from the desktop of her Multnomah County computer. (Lakeside-Scott Depo, pp. 26-27).
On December 5, 2001, Fuller informed Lakeside-Scott that the following disciplinary charges were being considered: misusing Multnomah County property; conducting personal business on Multnomah County time; interfering with the work of others; inappropriately accessing email and calendars of other employees; and engaging in prohibited workplace harassment.
Fuller assigned John Turner ("Turner"), DCJ Internal Affairs Investigator, to investigate. Turner interviewed 22 employees, including Lakeside-Scott, and reviewed various written documents, including the journal. Lakeside-Scott admitted to Turner that she: (1) accessed email and calendars of co-workers and management during work hours; (2) created a journal for her attorney; (3) created approximately 50% of the journal during work hours and on Multnomah County equipment; (4) printed the journal using Multnomah County equipment; and (5) forwarded the journal to a coworker. Turner issued an investigation report on December 19, 2001, recommending that all charges be sustained.
IV. Lakeside-Scott's Termination
By letter dated December 28, 2001, Fuller notified Lakeside-Scott of the investigation results. On January 4, 2002, Fuller met with Lakeside-Scott and the Chief Union Steward. At the brief meeting, Fuller allowed Lakeside-Scott to rebut the charges and offer mitigating circumstances, but Lakeside-Scott only encouraged Fuller to listen to the tape of the investigation interview.
On January 30, 2002, Fuller issued a letter of termination, effective February 14, 2002, for misuse of Multnomah County property; inappropriately accessing email, documents and calendars of other employees; conducting personal business on Multnomah County time; and engaging in prohibited workplace harassment and prejudicial acts. Fuller noted that: "the totality of your actions and conduct warrant your termination. I don't see any way that I can trust you in the future to uphold and support County and Department policies and rules." (Morf Aff, Ex 5, p. 3).
DISCUSSION
Defendants seek summary judgment on both the Section 1983 claim (First Claim) and Oregon's Whistleblower Act claim (Second Claim) on the basis that: (1) the Section 1983 claim against Multnomah County fails because there is no evidence of a custom, policy, or practice or ratification of any unconstitutional act; (2) Lakeside-Scott cannot establish a prima facie case for a Section 1983 claim against Brown for violating Lakeside-Scott's First Amendment rights, as she would have been terminated for misconduct irrespective of any speech; and (3) Lakeside-Scott cannot establish a prima facie case for whistleblowing and cannot prove pretext. For the reasons set forth below, summary judgment is granted on the Section 1983 claim against Multnomah County (First Claim), denied on the Section 1983 claim against Brown (First Claim), and denied on the Whistleblower Act claim against Multnomah County (Second Claim).
I. Section 1983 Claim Against Multnomah County (First Claim)
In her first claim, Lakeside-Scott alleges a violation of Section 1983 due to Multnomah County's retaliation against her for engaging in protected speech. Specifically, Lakeside-Scott asserts that Multnomah County had a "custom, policy and practice" to "harass and retaliate against employees like [Lakeside-]Scott, who objected to the conduct of Brown. Brown's conduct was ratified by the County due to its acquiescence to it." (Amended Complaint, ¶ 18).
A. Legal Standards
A governmental entity, such as Multnomah County, cannot be held vicariously liable for the unconstitutional acts of its employees, such as Brown, based upon a respondeat superior theory. Monell v. Dep't of Social Servs. of the City of New York, 436 U.S. 658, 691 (1978). Instead, the plaintiff must "demonstrate that, through its deliberate conduct, the municipality was the `moving force' behind the injury alleged."Bd. of County Comm'rs v. Brown, 520 U.S. 397, 404 (1997). To impose Section 1983 liability against a governmental entity, a plaintiff must rely on one of three theories:
First, the plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity. Second, the plaintiff may establish 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. . . . Third, the plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it.Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996), cert. denied, 520 U.S. 1117 (1997) (citing Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir 1992)).
B. Analysis
Lakeside-Scott seeks to hold Multnomah County liable based on the first and third of these theories. First, she argues that Multnomah County has a custom, policy or practice of retaliating against employees who "object to the conduct of Brown." (Amended Complaint, ¶¶ 17-18). Lakeside-Scott offers her own experience to demonstrate a "department-wide" practice.
Governmental entities cannot be liable without more than one incident of a constitutional violation of a non-policy maker.Davis v. City of Ellensburg, 869 F.2d 1230, 1233-34 (9th Cir. 1989). Moreover, a Section 1983 claim against a municipality "must be founded upon practices of sufficient duration, frequency, and consistency, [such] that the conduct has become a traditional method of carrying out policy" and "may not be predicated on isolated or sporadic incidents." Trevino, 99 F.3d at 918. Proof of random acts or isolated events are insufficient to establish a custom. Thompson v. City of Los Angeles, 885 F.2d 1439, 1443-44 (9th Cir. 1989).
Lakeside-Scott has failed to show how the alleged retaliation for objecting to Brown's conduct arises to a "traditional method of carrying out policy" of Multnomah County. At most, this is nothing more than an "isolated or sporadic incident." Moreover, Multnomah County followed its termination policy by notifying Lakeside-Scott of the contemplated discipline, including the administrative leave, investigation and results thereof, and the final termination decision. Lakeside-Scott has provided no evidence demonstrating a policy at Multnomah County of harassment or retaliation. Therefore, a Section 1983 claim against Multnomah County based on a theory of custom, policy, or practice fails as a matter of law.
Lakeside-Scott also argues that the Multnomah County Board of Commissioners ratified Brown's conduct by acquiescence. Ratification only occurs when the authorized policymaker "approve[s] a subordinate's decision and the basis for it." City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Therefore, to establish her ratification theory, Lakeside-Scott must prove that the authorized policymaker of Multnomah County not only approved Fuller's termination of Lakeside-Scott, but also did so on a retaliatory basis. An official to whom final authority has been delegated is considered a policymaker. Pembaur v. City of Cinninnati, 475 U.S. 469, 483 (1986).
Lakeside-Scott contends that the Board of County Commissioners is the final policymaker for employment policy decisions at Multnomah County and acquiesced to Brown's unconstitutional treatment of Lakeside-Scott. However, the Multnomah County Charter in effect during the relevant period directs that the County Chair "shall be the chief executive officer and personnel officer of the County." (Morf Aff, Ex 21, p. 3). The County Chair during the relevant time was Diane Linn, not Fuller. There is no evidence in the record that the Multnomah County Chair had any involvement in reviewing Lakeside-Scott's administrative leave or termination decision. Moreover, the evidence does not suggest that Multnomah County's Chair engaged in a widespread policy or practice of retaliating against those who speak out against Brown. Nevertheless, Lakeside-Scott argues that liability should attach because Fuller had "discretionary authority" to fire her. In Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994), the plaintiff brought a Section 1983 action against the city, police chief and the supervisor and officers of a canine unit, alleging that the release of a police dog violated his Fourth and Fourteenth Amendment rights. The Ninth Circuit held "[a] city cannot escape liability for the consequences of established and ongoing departmental policy . . . by permitting such basic policy decisions to be made by lower level officials who are not ordinarily considered policymakers." Id. at 1445.
Unlike Chew, Fuller only made a decision to terminate Lakeside-Scott. There is no evidence that Fuller made any policy decisions. This case more closely parallels Pembaur, where the Supreme Court plainly held that an official's discretion to hire and fire does not give rise to municipal liability unless the official is also a final policymaker of employment policy.Pembaur, 475 U.S. at 483 (holding that municipal liability under Section 1983 "attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question").
In short, Fuller's discretion to fire Lakeside-Scott does not establish that she is a final policymaker for Multnomah County. Thus, summary judgment on the Section 1983 claim against Multnomah County and Brown in her official capacity is granted because any ratification theory fails as a matter of law.
II. Section 1983 Liability of Brown in Her Individual Capacity (First Claim)
Also in the First Claim, Lakeside-Scott alleges that Brown, in her individual capacity, "was personally referenced by [Lakeside-]Scott's objections" and "intentionally and/or recklessly violated [her] First Amendment rights[.]" (Amended Complaint, ¶ 19).
A. Legal Standards
To prevail under Section 1983 based on an alleged First Amendment violation, a plaintiff must demonstrate: (1) she engaged in protected speech; (2) she was subjected to an "adverse employment action;" and (3) that her speech was a "substantial or motivating" factor for the adverse employment action. Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 675 (1996); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84 (1977); Johnson v. Multnomah County, Or., 48 F.3d 420, 422 (9th Cir. 1995). After a prima facie case has been established, a defendant can still prevail by showing by a preponderance of the evidence that the plaintiff would have been terminated from employment even in the absence of protected speech. Mt. Healthy, 429 U.S. at 287.
"[S]peech cannot be protected unless it `substantially involved matters of public concern.'" Johnson, 48 F.3d at 422 (quotingMcKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983)). Once a plaintiff has shown "that the statements were of public concern, then the burden shifts to the County to show that its legitimate administrative interests outweigh the First Amendment interest in [Lakeside-Scott's] freedom of speech." Id. (citations omitted).
B. Analysis
Defendants argue that the applicable statute of limitations bars most of the incidents alleged to give rise to plaintiff's Section 1983 claim against Brown in her individual capacity. Defendants further argue that any First Amendment claim against Brown in her personal capacity fails because Lakeside-Scott cannot establish a prima facie case. Last, defendants argue that Multnomah County's stated reasons for Lakeside-Scott's termination are not pretextual and she would have been terminated irrespective of her alleged protected speech. For the reasons that follow, dismissal of this claim is premature.
1. Statute of Limitations
Section 1983 does not provide a time limit for claims. Thus, a statue of limitation is borrowed from state law. The Ninth Circuit classifies Section 1983 claims as personal injury actions. Davis v. Harvey, 789 F.2d 1332, 1333 (9th Cir. 1986). Oregon's general tort statute provides a two-year statute of limitations. O.R.S. 12.110(1). Because Lakeside-Scott filed her BOLI complaint on November 6, 2002, her claims are limited to conduct occurring after November 6, 2000. Several alleged incidents are thus time-barred, including the: (1) reclassification decision occurring on January 9, 1999; (2) unsuccessful promotional requests in 1998 and 1999; and (3) assignment of tasks outside Lakeside-Scott's classification in 1998. Thus, the only remaining alleged incidents include Lakeside-Scott's: (1) request for ergonomic accommodation; (2) request for a promotion in May 2001; and (3) feelings of being singled out.
2. Prima Facie Case
Brown asserts that she was unaware of Lakeside-Scott's protected speech until October 2001, after the BOLI complaint was filed, and she did not subject Lakeside-Scott to any adverse employment action in retaliation for engaging in protected speech. Lakeside-Scott counters that Brown was aware of Lakeside-Scott's statements and was actively involved with many day-to-day issues at the DCJ, including Lakeside-Scott's unsuccessful attempt at promotion in 2001.
Lakeside-Scott argues that she was denied the 2001 promotion because she continuously complained that Brown preferred hiring gay and lesbian employees and improperly awarded Multnomah County service contracts. The facts establish that Lakeside-Scott did not keep her opinions quiet. (See e.g., Turner Investigation Report, Morf Ex 3, p. 7 (indicating that Lakeside-Scott "complained a great deal" and "consumed a large amount of management's time"). She continually complained to: (1) her immediate supervisor, Hogue; (2) Hogue's supervisor, Gorton; (3) a non-supervisor Tami Williams (Information Services Coordinator below Gorton); and (4) her coworkers. Lakeside-Scott was informed that she was not promoted in 2001 due to her lack of follow-through on projects. However, when viewing the facts in Lakeside-Scott's favor, she had been openly complaining about Brown and her practices continuously for approximately three years. Moreover, employees in another department ranked Lakeside-Scott first for the position in 2001, yet she finished fifth out of five candidates by "management" in her department. While the facts are not entirely clear, "management" may include Hogue and Gorton who, in turn, may have failed to appropriately rank Lakeside-Scott because they knew that Brown would not promote her because of her constant complaining about Brown's practices. A question of fact exists. Thus, summary judgment is premature on the issue of whether Lakeside-Scott can establish a prima facie case. 3. Pretext
Defendants next argue that Lakeside-Scott would have been terminated from employment even in the absence of her protected speech. Lakeside-Scott counters that the reasons for her termination are pretextual.
A public employer cannot be held liable for retaliation if it would have taken the adverse action absent the employee's protected conduct. "An employee who makes an unprotected statement is not immunized from discipline by the fact that this statement is surrounded by protected statements." Waters v. Churchill, 511 U.S. 661, 681 (1994). The Supreme Court has reasoned that
[a] borderline or marginal candidate . . . ought not to be able, by engaging in [protected] conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.Mt. Healthy, 429 U.S. at 286.
Fuller terminated Lakeside-Scott for her admitted misconduct in accessing email and calendars of Multnomah County employees and then using County time and equipment to compile, print and distribute her journal. This information was accessible because of Lakeside-Scott's position as a Systems Specialist. While defendants contend that Lakeside-Scott had absolutely no business purpose to access the email of other employees, or spend time compiling, printing, and distributing her journal, Lakeside-Scott counters that her supervisor, Hogue, had directed her to print and compile a list of those misusing the email system. Hogue, however, denies this. This credibility determination is for a jury.
Moreover, it is unclear from the record just how Fuller learned of Lakeside-Scott's indiscretions and which acts prompted the investigation and which acts were discovered during the investigation and in the course of discovery in this lawsuit. What is clear from the record, however, is that Lakeside-Scott was placed on administrative leave eleven days after filing her BOLI complaint. This sufficiently raises a question of whether the asserted cause of Lakeside-Scott's termination is pretextual. Accordingly, summary judgment on this claim is denied.
III. Whistleblowing (Second Claim)
Last, Lakeside-Scott alleges that Multnomah "County discharged [her] because: (a) She objected to the County's conduct prior to the filing of her BOLI complaint in October 2001; and (b) Scott exercised her right to file with [BOLI], all in violation of O.R.S. 659A.203(b)(c) and (d)." (Amended Complaint, ¶ 24).
A. Legal Standards
This District applies a Title VII retaliation framework when assessing retaliation claims under the Oregon Whistleblower Act.See e.g., Ryan v. Patterson Dental Supply, Inc., 2000 WL 640859, *29 (D. Or. May 12, 2000) (citing Henderson v. Jantzen, Inc., 79 Or. App. 654, 719 P.2d 1322 (1986)). To establish a prima facie case of retaliation under Title VII, a 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 E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1513-14 (9th Cir. 1989)). Additionally, a plaintiff must show that her complaints were the "likely reason" for the employer's negative actions. Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). Oregon has a one year statute of limitations for a whistleblower claim occurring after January 1, 2002. O.R.S. 659A.875.
Pertinent sections of Oregon's Whistleblower Act provide that no public employee shall:
(b) Prohibit any employee from disclosing, or take or threaten to take disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of:
(B) Mismanagement, gross waste of funds or abuse of authority or substantial and specific danger to public health and safety resulting from action of the state, agency or political subdivision[.]
ORS 659A.203(1)(b)(B) (emphasis added). B. Analysis
No Oregon case brought under O.R.S. 659A.203(1)(b) has defined "disclosure." See e.g., Young v. State, 182 Or. App. 210, 47 P.3d 926 (2002). Because the Oregon Whistleblower Act is very similar to the federal Whistleblower Protection Act of 1989 ("WPA"), decisions by federal courts concerning the WPA are helpful in defining the sufficiency of a disclosure. In addressing this precise issue, the Federal Circuit concluded that reports of wrongdoing to supervisors are protected if made to a person "in a supervisory position, other than the wrongdoer himself[.]" Huffman v. Office of Pers. Mgmt., 263 F.3d 1341, 1351 (Fed. Cir. 2001). Here Lakeside-Scott made numerous disclosures to Hogue and Gorton, supervisors other than the wrongdoer, Brown.
Defendants argue that Lakeside-Scott cannot establish the third element necessary for a prima facie retaliation case because there is no causal link between her activity and the employment decision. In other words, defendants contend that Lakeside-Scott's whistleblowing activity did not cause her termination.
Lakeside-Scott admits that she maintained a journal, which she printed and disseminated while at work. She also admits to accessing other employee's private email and calendars that were not password protected, but did so upon the instruction of her supervisor, Hogue. Lakeside-Scott contends that these acts do not justify her termination.
In Hardie v. Legacy Health Sys., 167 Or. App. 425, 435, 6 P.3d 531, 538 (2000), the Oregon Court of Appeals clarified the causation analysis under Oregon law: "The crux of the standard, regardless of which phraseology is attached to it, is whether, in the absence of the discriminatory motive, the employee would have been treated differently." It is Lakeside-Scott's burden to show that she would not have been terminated in the absence of Brown's allegedly unlawful motive. Id., 167 Or. App. at 435, 6 P.3d at 537.
In Price Waterhouse v. Hopkins, [ 490 U.S. 228, 240 (1989)], the United States Supreme Court explained: "But-for causation is a hypothetical construct. In determining whether a particular factor was a but-for cause of a given event, we begin by assuming that that factor was present at the time of the event, and then ask whether, even if that factor had been absent, the event nevertheless would have transpired in the same way." If an event would have transpired in the same way, a factor is not a "but for" cause.Id., 167 Or. App. at 435 n6, 6 P.3d at 537 n. 6.
Lakeside-Scott argues that she would not have been terminated but for her continuous complaints, culminating in a BOLI complaint, that Brown preferred promoting gay and lesbian employees and engaged in contract preferences. As discussed above, the record raises questions of fact on this issue, namely: (1) whether there is a link between the close timing of Lakeside-Scott's BOLI complaint and being placed on administrative leave; (2) how Fuller discovered Lakeside-Scott's unauthorized email and calendar access; (3) whether Fuller learned of Lakeside-Scott's inappropriate acts prior to the investigation, after the investigation, or during the course of discovery in this lawsuit; (4) whether Fuller was aware of Lakeside-Scott's complaints of favoritism in the hiring and promoting of gay and lesbian employees and in specially awarding service contracts prior to the date of filing her BOLI complaint; and (5) whether Hogue indeed instructed Lakeside-Scott to access the email of other employees.
At this stage, Lakeside-Scott has provided some, albeit slim, evidence to raise a material question of fact on the causation element necessary to sustain a whistleblower claim. Thus, the Oregon Whistleblower Act claim remains.
CONCLUSION
For the reasons set forth above, defendants' Motion for Summary Judgment (docket #39) is GRANTED with respect to the First Claim against Multnomah County and otherwise DENIED.
IT IS SO ORDERED.