Minter v. Multnomah County

Full title: PEGGY MINTER, Plaintiff, v. MULTNOMAH COUNTY and DANIEL BROWN, director of…

Court: United States District Court, D. Oregon

Date published: May 10, 2002

CV-01-352-ST (D. Or. May. 10, 2002)

Opinion

CV-01-352-ST.

May 10, 2002

FINDINGS AND RECOMMENDATION UPON RECONSIDERATION

STEWART, Magistrate Judge

BACKGROUND

On January 24, 2002, this court issued its first Findings and Recommendation (docket #35), recommending that defendants' Motion for Summary Judgment be granted as to plaintiff's whistleblowing and wrongful termination claims and denied as to plaintiff's § 1983 claim against Multnomah County and Daniel Brown in his individual capacity. Both parties filed objections to this recommendation.

On April 2, 2002, Judge Haggerty remanded to this court its first "Findings and Recommendations for reconsideration in light of the additional evidence submitted by the defendants" (docket #44). The following is this court's Findings and Recommendation Upon Reconsideration.

INTRODUCTION

Plaintiff, Peggy Jo Minter ("Minter"), originally filed this action against defendants Multnomah County and Daniel Brown ("Brown"), Director of the Facilities and Property Management Services Division of Multnomah County's Department of Sustainable Community Development ("Facilities Division"), on January 30, 2001, in Multnomah County Circuit Court for the State of Oregon, Peggy Minter v. Multnomah County and Daniel Brown, Civil Case No. 0101-01118. Defendants filed a Notice of Removal to this court on March 15, 2001.

Minter alleges that her former employer, Multnomah County, terminated her because she disclosed information that Brown pressured her into preparing a false accounting of operating expenses for fiscal year 2000 ("FY00") to justify a transfer of funds from Multnomah County's general fund to the Facilities Division. As a result, Minter alleges that Multnomah County violated Oregon's Whistleblower Act¹ (First Claim) and wrongfully discharged her (Third Claim) and that both defendants violated 42 U.S.C. § 1983 ("§ 1983") (Second Claim). Accordingly, Minter seeks to recover lost wages, reinstatement or front pay, noneconomic damages, punitive damages, attorney fees and costs.

1 Oregon's Whistleblower Act was recodified in 2001. See ORS 659A.200-.224. However, in accordance with the references used by the parties, this court will refer to the former section numbers.

This court has federal question jurisdiction over this action under 28 U.S.C. § 1331. Defendants' Motion for Summary Judgment (docket #14) is now before the court. For the reasons that follow, the motion should be granted as to the Oregon Whistleblower Act and wrongful discharge claims, and denied as to the § 1983 claim.

STANDARDS

FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id at 324. The court must "not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial." Balint v. Carson City, Nevada, 180 F.3d 1047, 1054 (9th Cir 1999). A "`scintilla of evidence,' or evidence that is `merely colorable' or `not significantly probative,'" does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir), cert denied, 493 U.S. 809 (1989), quoting Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 249-50 (1986).

The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir 1987). The court must view the inferences drawn from the facts in the light most favorable to the non-moving party. Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id at 630-31. However, when the non-moving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir 1987), cert denied, 484 U.S. 1006 (1988). The Ninth Circuit has found, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id.

FACTS

Because all material facts must be viewed in the light most favorable to the non-movant, this court will view the evidence in the light most favorable to Minter. The following is a summary of the facts contained in the parties' supporting affidavits, declarations, and deposition excerpts.²

2 Both parties have submitted documents with various attachments, namely Plaintiff's Affidavit of Donald B. Potter ("Pltf's Ex") (docket #28) and Defendants' Second Affidavit of Jenny M. Morf ("Defs' Ex") (docket #17). Citations to affidavits, declarations, and depositions are identified by the last name of the affiant, declarant, or deponent, and citations are to the paragraph(s) of the affidavit or declaration, or page(s) of the deposition transcript. All other citations are to the exhibit number of the parties' submissions.

I. Background

Minter began working for Multnomah County in October 1992 and was promoted in September 1999 to a position now entitled Fiscal Services Section Manager of the Facilities Division which maintains, operates, and manages all properties owned or leased by Multnomah County. Affidavit of Dan Brown ("Brown Aff"), Defs' Ex 2, ¶¶ 2-3; Defs' Ex 3; Pltf's Ex 34, p. 1. Generally, Minter's duties were to manage and direct the collection and distribution of financial information, initiate contracts, and control the budgeting process for the Fiscal Section of the Facilities Division. Brown Aff, ¶ 3. Her responsibilities included: (1) devising a method to record expenses and revenues; (2) designing and implementing a billing procedure; and (3) preparing a divisional budget each fiscal year. Pltf's Ex 33, p. 1.

On December 1, 1999, Brown became Director of the Facilities Division and Minter's direct supervisor. Brown Aff, ¶¶ 2-3. Prior to this position, Brown spent 24 years with the United States Coast Guard and was a construction program manager with the Oregon Department of Corrections. Deposition of Daniel Brown ("Brown Depo"), Pltf's Ex B, pp. 9-10.

In FY00 (ending in June 2000), the Facilities Division budget did not include an estimated $1,011,067 ("$1.1 million") for operating expenses for a building that was to become Multnomah County's government headquarters. Brown Aff, ¶ 5; Affidavit of Plaintiff Peggy Minter ("Minter Aff"), Pltf's Ex H, ¶ 4. Consequently, Brown requested that $1.1 million be earmarked in the general fund and transferred to the Facilities Division. Brown Depo, pp. 62, 68. The Budget Office was hesitant and "wanted to see actual expenditures before they would consider giving [the Facilities Division] relief . . . ." Id at 62. Moreover, Karyne Dargan, a Budget Analyst for the Department of Environmental Services, disagreed with authorizing this request, believing that "if the [building's] operational costs for FY00 are approximately $900,000, given the projections, it would appear that [F]acilities might be able to absorb these costs." Id at 66-67; Pltf's Ex 13. However, Brown maintained that "absorbing 900,000 dollars in the budget would basically . . . totally eliminate any beginning working capital that the division would have for the next budget cycle . . . ." Brown Depo, pp. 67-68. In order to save the Facilities Divisions from absorbing the FY00 costs associated with the building renovations, Brown persuaded the Budget Office to agree to a cash transfer upon the production of supporting accounting documentation, or Brown's "audit trail of expenditures." Id at 70, 79-82; Pltf's Ex 12, p. 2.

II. Falsifying Accounting Records

In March or April of 2000, Brown asked Minter to compile the building's operating expenses for the fiscal year to date. Deposition of Peggy Minter ("Minter Depo"), Pltf's Ex A, pp. 63-64. Minter delegated this task to her subordinate, Gary Jackson ("Jackson"), a Fiscal Specialist 1, because he was already budgeting and tracking all building expenditures and this type of compilation fell within his regular duties. Id at 78-80. Jackson reported to Minter that the operating expenses for the building through the third quarter of FY00 totaled approximately $800,000, which equaled $1.2 million when annualized through June. Id at 81. Without an in-depth review of Jackson's compilation totals, Minter reported this information to Brown who, based on input from the project manager and building tradespeople, believed this estimate to be realistic. Id at 80-82; Brown Depo, pp. 75-76.

In August 2000, the Budget Office requested an updated accounting of the actual operating expenses with supporting documentation to verify that the transfer was necessary and Brown again delegated this task to Minter. Brown Aff, ¶ 7. On September 1, 2000, Minter informed Brown that the actual operating expenses of the building were approximately $794,000.00. Id at ¶ 8; Minter Depo, p. 90. Brown was upset with this figure because it was below the $1.2 million expenditure cost estimates that Minter had previously told Brown which he had, in turn, represented to the Budget Office. Brown Aff, ¶ 8; Minter Depo, pp. 92-93. He also questioned the amount because Minter's previous estimate and final accounting were similar in amount and did not reflect his estimate or the other cost estimates that had been circulated in the division. Brown Aff, ¶ 8. Fearing public embarrassment, Brown intimidated Minter by asking her to get the correct figures, saying in a raised voice "You will get [the] numbers up to $1.2 million. You will take care of this . . . you will fix the numbers." Minter Depo, pp. 92, 94-97, 99. However, he never expressly told her to "falsify" the numbers. Id at 97.

Minter reviewed Jackson's March 2000 accounting and discovered that his estimates incorrectly included construction labor costs that artificially inflated his estimated operating costs of the building. Id at 93-94, 97-98. Since she felt intimidated, she decided to get the building costs up to $1.2 as Brown wanted by perpetuating Jackson's error. Id at 94-95. Without telling Brown, Minter reassigned accounting codes to improperly add construction labor costs to the operating expenses. Id at 99.

Feeling like a "subordinate, intimidated employee who was back peddling as fast as she could," on September 1, 2000 (id at 100), Minter sent Brown the following email:

I have had to do a bit of creative accounting today. Nothing illegal!! Just reassigning some costs to different codes. It's actually kind of nice to be able to add a bit of creativity to my day — accounting work is usually so dry and static. Anyway, I'm still working on the Multnomah Building costs. I'm sorry that it's taking longer than I had anticipated. I need to leave now, but I will work over the weekend to have it finished before Tuesday morning. And you can relax, the expenses are clearly more than $1.2 million. I hope I didn't startle you too much this morning with my question! You looked very worried. I know you have heavy business concerns on your mind and I don't ever want to add to your level of anxiety.

Pltf's Ex 21.

Brown was happy with the $1.2 million figure and he never questioned Minter about how she "reassigned" costs. Minter Depo, pp. 122-23; Minter Aff, ¶ 6. On September 11, 2000, Brown thanked Minter for her $1.2 million operating expenses summary chart for the building which, unknown to Brown, included the inaccurate operating expense of construction labor costs. Pltf's Ex 23. However, the Budget Office was still not satisfied and requested more complete details for the numbers provided. Brown Aff, ¶ 10.

Minter felt that Brown was angry and pushing her to complete the Budget Office's request before September 21, 2000, the date of her scheduled vacation. Minter Depo, pp. 106-07. On September 20, 2000, at 11:26 p.m., she e-mailed Brown and the Budget Office the requested backup documentation which supported the inaccurate $1.2 million figure. Pltf's Ex 24.

III. Disclosure of Falsification

Two days into her vacation, Minter questioned her action and believed that Brown's mismanagement and abuse of authority pressured her into falsifying the numbers. Minter Aff, ¶ 8. Minter returned from vacation on October 2, 2000, but did not immediately self-report. Minter Depo, p. 117.

Still struggling with having done "this awful thing," Minter instead saw her therapist on October 21, 2000. Id at 117-18. On October 23 or 24, 2000, Minter met with Mike Oswald ("Oswald"), then Acting Director of the Department of Sustainable Community Development, and Tom Guiney ("Guiney"), a Deputy Director, and told them that they would probably want to fire her because, even though Brown had not instructed her to do anything illegal, she had inaccurately included nonoperating costs in reaching her $1.2 million figure. Affidavit of Mike Oswald ("Oswald Aff"), Defs' Ex 20, ¶ 2; Deposition of Michael Oswald ("Oswald Depo"), Defs' Ex 10, pp. 12-13, 16. She also told them that Brown had told her that the $794,000.00 figure was "unacceptable," that he did not want to be "publicly embarrassed" and to "find a way," and that she had wanted to go on vacation, "felt intimidated," and did not want to let Brown down. Pltf's Ex 40. Oswald believed that Minter was voluntarily attempting "to take responsibility for her conduct" and he was "concerned that Minter expressed feelings of being intimidated by Brown, but did not understand her to say that he had intimidated, pressured, coerced, or forced her into falsifying the records." Oswald Aff, ¶ 4. Oswald directed Minter to immediately provide Brown with the details of her conduct. Id at ¶ 4.

Either the same or the next day, Minter told Brown. Brown Aff, ¶ 11. Expecting Brown to be angry and her immediate termination, Minter was surprised when he said "don't worry, we'll cover it up, I'll call Karyne [Dargan] right away." Minter Depo, p. 126. However, Brown "exploded" when Minter told him that he could not cover it up because she had already told Oswald. Id. Brown did not discuss discipline and even though Minter's conduct was cause for termination, Brown originally thought discipline should be mitigated in light of the fact that Minter was a longtime employee who self-reported her misconduct and seemed willing to take responsibility for her actions. Brown Aff, ¶¶ 11-12. Notwithstanding these mitigating factors, Brown believed that Minter destroyed her credibility as a Fiscal Services Section Manager, so he began investigating the possibility of placing her in another position within the Facilities Division. Id at ¶ 12.

On October 25, 2000, Brown and Oswald met to discuss Minter's misconduct, but Oswald never revealed to Brown that Minter had suggested that Brown had intimidated her into falsifying the records. Id at ¶ 13; Brown Depo, pp. 119-120; Oswald Aff, ¶ 5. Brown also told Wanda Yantis ("Yantis"), who was being promoted to second in command. Deposition of Wanda Yantis ("Yantis Depo"), Pltf's Ex C, pp. 9-10, 46. Meanwhile, Bob Thomas was assigned to work with Minter and he was able to identify and correct the accounting information. Oswald Aff, ¶ 6. In the end, however, the accounting was not necessary because County-wide budget cuts eliminated the possibility of any transfer to the Facilities Division budget. Id.

On the same day, Yantis asked Minter for her version of what happened and Minter told her that Brown had rejected her first report and she felt intimidated and pressured into making up numbers to reach the $1.2 million mark. Pltf's Ex 45, p. 2. The next day, Brown met with Minter and explained that he would not fire her, but she would have to resign or be demoted. Minter Depo, pp. 129-130. She agreed to resign, but felt that Brown pressured her into it. Id.

After her meeting with Brown, Minter told her staff that she had done something wrong and might be getting fired. Minter Depo, pp. 129-30. Later, when one of Minter's staff came to Minter's office asking her what happened, Minter told her that Brown had intimidated her into falsifying information. Minter Depo, p. 130. Shortly thereafter, Brown learned from a few of Minter's staffmembers that she was blaming him for feeling pressured into falsifying the accounting records. Brown Depo, pp. 123-24. On November 1, 2000, Minter told Yantis "that it was Brown's fault" and "she had no choice." Yantis Depo, p. 30; Ex 45, p. 4.

IV. Termination

Also on November 1, 2000, on the advice of her attorney, Minter e-mailed Brown that she was not going to resign and Brown subsequently placed her on paid administrative leave. Pltf's Exs 26, 57. The next day, Brown advised Minter that a charge of "knowingly and deliberately falsifying Multnomah County budgetary documentation" had been brought against her. Pltf's Ex 27. Minter was advised that her conduct violated Multnomah County's employee conduct rules requiring that "all reports, records or claims completed by employees shall be true and accurate, to the best of their knowledge" and that such charges could warrant termination. Id. This letter also states that: "Prior to making a decision as to the proposed termination of your employment, I wish to have any evidence or argument you may wish to offer to rebut the charge against you . . . ." Id.

On November 8, 2000, Minter and her attorney met with Brown and Shelley Matthews ("Matthews"), from Human Resources, and indicated that she felt Brown spoke to her in an intimidating manner. Brown Depo, pp. 129-30; Deposition of Shelley Matthews ("Matthews Depo"), Pltf's Ex D, pp. 17-18. She also handed Brown a letter informing him that she was being retaliated against for public whistleblowing and intended to bring legal action. Pltf's Ex 28.

On November 9, 2000, Brown informed Minter by letter that she was terminated "effective November 13, 2000 . . . for . . . knowingly and deliberately falsifying Multnomah County budgetary documentation." Pltf's Ex 29. In a November 20, 2000 e-mail to Matthews, with copies to Oswald, Director of the Department of Environmental Services Maria Rojo de Steffey ("Steffey"), and Multnomah County attorney Kathryn Short ("Short"), Brown states that he terminated Minter "because her conduct had shifted from one of remorse and apology for action taken [to] trying to shift the blame to [Brown] through a series of false allegations." Pltf's Ex 20, p. 1.

Minter unsuccessfully appealed her termination on November 16, 2000, to Steffey and filed an appeal on December 8, 2000, to Fernando Conill ("Conill"), Multnomah County's Director of Human Resources. Pltf's Exs 34 and 70. A hearing on that appeal was set to take place before Hearing Officer Allen Hein on February 7, 2001, but Minter withdrew her appeal to Merit Council prior to the hearing. Pltf's Ex 71; Defs' Ex YYY.

DISCUSSION

Defendants move for summary judgment against all three of Minter's claims. For the reasons that follow, summary judgment should be granted on the Oregon Whistleblower Act and wrongful discharge claims, but denied on the § 1983 claim.

I. Violation of Oregon's Whistleblower Act (First Claim)

The First Claim alleges that: "On or about October 23 and October 24, 2000, Plaintiff disclosed information that Plaintiff reasonably believed was evidence of mismanagement, gross waste of funds and/or abuse of authority to wit: that Defendant Brown had pressured her into preparing a false accounting." Complaint, ¶ 5. Based on that conduct, Minter alleges that Multnomah County terminated her employment in violation of Oregon's Whistleblower Act. Id at ¶ 6.

This District applies the Title VII retaliation framework when assessing retaliation claims under the Oregon Whistleblower Act. See Ryan v. Patterson Dental Supply, Inc., 2000 WL 640859, *29 (D Or 2000). 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 EEOC 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, 796-97 (9th Cir 1982). Defendants argue that Minter cannot establish the first and third elements necessary for a prima facie retaliation case.

A. Protected Activity

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 659.510(1)(b)(B) (emphasis added).³

3 No Oregon case brought under ORS 659.510(1)(b) has defined "disclosure." 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. Recently 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 Minter made a disclosure to Oswald, a supervisor other than the wrongdoer, Brown.

Defendants assert that Minter did not report any misconduct by her supervisor, Brown, on October 23 or 24, 2000, but instead confessed only her own wrongdoing and affirmatively stated that Brown did not instruct her to do anything wrong. Because she merely disclosed her own misconduct, defendants contend that her whistleblowing claim is barred by ORS 659.515(5). That statute provides that Oregon's Whistleblower Act does not: "Restrict or preclude disciplinary action against an employee . . . if the information disclosed relates to the employee's own violations, mismanagement, gross waste of funds, abuse of authority or endangerment of the public health or safety" (emphasis added). According to defendants, the term "relates to" connotes a broad statutory reach sufficient to bar Minter's claim.

To avoid this bar to her claim, Minter seeks to characterize her disclosure as relating not to her own misconduct, but as relating to Brown's intimidation which caused her to engage in misconduct. This court disagrees. Minter did disclose intimidation by Brown, but she also disclosed her own misconduct. Although disclosure of Brown's intimidation may rise to the level of "mismanagement" or "abuse of authority" encompassed by the Oregon Whistleblower Act, it is relevant only to explain why Minter falsified the accounting information.

Minter does not dispute that she admitted to knowingly and deliberately falsifying Multnomah County's accounting records nor does she argue that falsifying records is not misconduct. Instead, she argues that a question of fact exists as to why she was terminated. She contends that Brown terminated her, not because of any "mismanagement, gross waste of funds, or abuse of authority" by her, but because she blew the whistle on his misconduct. Pltf's Ex 20 (November 20, 2000 e-mail from Brown stating that "Peg was terminated because her conduct had shifted from one of remorse and apology for action taken [to] trying to shift the blame to me through a series of false allegations"). Brown initially did not intend to discharge Minter, but instead planned on demoting or transferring her. He fired her only after she disclosed that he had pressured her into falsely reporting the operating expenses.

Minter's argument, however, speaks to causation, the third prong of the prima facie case, not to whether ORS 659.515(5) bars her claim. Simply put, Oregon's Whistleblower Act (in contrast to a § 1983 claim, as discussed below) does not allow an employee to blow the whistle on herself. The unambiguous language of ORS 659.515(5) dictates that Minter cannot save herself from termination by confessing her own misconduct, regardless of why she engaged in misconduct. Even if Minter also reported "mismanagement" or an "abuse of authority" by Brown, Multnomah County may take disciplinary action against her without violating Oregon's Whistleblower Act if "the information disclosed relates to [her] own violations." Her disclosure clearly "relates to" her own violations. Minter may have been protected by the Oregon Whistleblower Act had she reported Brown's attempt to intimidate her into committing an illegal act before she falsified the accounting information. She did not do so. Instead, she first falsified the accounting information and then later confessed and attempted to shift the blame to Brown.

Although it can be argued that ORS 659.515(5) should not be interpreted to discourage self-confessions of misconduct, the unambiguous language chosen by the Oregon Legislature reveals a clear policy choice that leaves no room for such an interpretation. Because ORS 659.515(5) permits termination of an employee whose disclosure relates to her own violations, and Minter's disclosure related to her own misconduct, as well as Brown's misconduct, the first element necessary for a prima facie case fails.

B. Causal Connection

Although this court concludes that the Oregon Whistleblower Act claim should be dismissed under ORS 659.515(5), this is an issue of first impression. Thus, this court will also address defendants' alternative argument that Minter has not sufficiently proven the third element required for a prima facie case, namely a causal link between her activity and the employment decision. 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." This causation element is plaintiff's third step necessary to establish her prima facie case. Id at 433, 6 P.3d at 536. As a result, it is Minter's burden to show that she would not have been terminated in the absence of Brown's allegedly unlawful motive. Id 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 at 435 n6, 6 P.3d at 537 n6.

Minter argues that she would not have been terminated but for her disclosure that Brown intimidated her into falsifying the accounting information. The record contains some evidence to support this argument.

Brown directed Minter to "fix the numbers" and when Minter told Brown about what she had done, he was at first unconcerned about Minter's confession, saying that it was "no problem, we'll cover it up." Minter's Depo, p. 125. However, when Brown learned that she had already revealed her falsification to Oswald, he "exploded." Id at 126. It is not clear whether or not Minter told Brown that she had also disclosed to Oswald that she falsified the accounting due to Brown's intimidation. However, she testified that she did tell Brown why she had falsified the accounting (id at 121) and that she told him "exactly" what she had told Oswald. Id at 120. Minter had reported to Oswald that she had falsified the records and that Brown had intimidated her. Pltf's Ex 40. In addition, Brown attended the meeting on November 8, 2000, with Human Resources when Minter said that Brown intimidated her into falsifying the records. Matthews Depo, pp. 17-18. Therefore, it can reasonably be inferred that Brown knew that Minter had disclosed to Oswald, as well as Human Resources, that Brown had intimidated her into falsifying the records.⁴ Although defendants argue that Brown did not terminate Minter, he initiated steps to terminate her and signed the notices of administrative leave, charge of falsification, and termination. Brown Depo, pp. 127-28; Pltf's Exs 20, 26, 27, 29, and 31.

4 Of course, a contrary inference can be drawn from the evidence. Brown did not intend to terminate Minter when she first confessed, but instead considered demoting her to a suitable position within the Facilities Division. He later changed his mind only after he learned from Minter's staff that she had reported to them that Brown had intimidated her into it and after Minter withdrew her resignation. Brown Depo, pp. 123-24. Minter's disclosure to her staff is not a disclosure to a supervisor protected by the Whistleblower Act. Therefore, if that is why he decided to terminate her, then his decision was not based on a protected disclosure. However, at this point, the court must draw all reasonable inferences in favor of Minter.

At this stage, Minter has provided sufficient evidence to raise a material question of fact on the issue of causation. However, since she fails the first element necessary for a prima facie case, the Oregon Whistleblower Act claim should be dismissed.

II. Violation of § 1983 (Second Claim)

A. Claims Against Multnomah County and Brown in his Official Capacity

The Second Claim alleges that Multnomah County and Brown, acting in his official capacity, are liable under § 1983 for violating Minter's First Amendment rights. However, 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. Department of Social Servs. of the City of New York, 436 U.S. 658, 691-92 (1978). Instead, to impose § 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).⁵

5 Although Minter did not plead any of these theories, she orally moved to conform her pleading to the proof. That motion is granted.

Minter seeks to hold Multnomah County and Brown in his official capacity liable based on two of these theories. First, she argues that Multnomah County has a custom, policy or practice of retaliating against whistleblowers. As evidence of this custom, policy or practice, Minter offers her own retaliation claim and a retaliation claim filed by another employee filed in this court on August 3, 2001, Calkins v. Daniel Brown and Multnomah County, 01-1180-BR. Pltf's Ex I.

It is well-settled that § 1983 may attach to a municipality upon a showing that the constitutional deprivation occurred as a result of a custom, policy or practice. Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). Such a custom in a § 1983 case, however, "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). 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). Here, Minter has failed to show how Brown's alleged acts of retaliation against two employees rise to a "traditional method of carrying out policy" of Multnomah County and are more than "isolated or sporadic incidents." Therefore, a § 1983 claim based on this theory fails.

Second, at oral argument, Minter also argued that Multnomah County ratified Brown's conduct through a series of appeals that approved her termination. Ratification does not occur unless 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) (reversing the Eighth Circuit's affirmance of the trial court in a retaliation case because the supervisor's decision at issue was not individually reviewed by the appropriate policymaker). An official to whom final authority has been delegated is considered a policymaker. Pembaur, 475 U.S. at 483.

The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable. Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law. However, like other governmental entities, municipalities often spread policymaking authority among various officers and official bodies. As a result, particular officers may have authority to establish binding county policy respecting particular matters and to adjust that policy for the county in changing circumstances. . . . We hold that municipal liability under § 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.

Id.

Therefore, to establish ratification, Minter must prove that the authorized policymaker of Multnomah County not only approved Brown's termination of Minter, but did so on a retaliatory basis. Praprotnik, 485 U.S. at 123.

Minter argues that Steffey, the Director of Environmental Services, is the policymaker. Defendants contend that the evidence is insufficient to establish that Steffey is a policymaker. However, the record reveals that Brown copied Steffey in his letter notifying Minter of her termination. Pltf's Ex 20. Steffey denied Minter's appeal. Pltf's Ex 34. Minter then appealed Steffey's decision to Human Resources Director Conill. Pltf's Ex 70. Conill responded that according to Personnel Rule 135.07(b), a hearings officer would hear her appeal and issue findings to him and then he would make recommendations to Steffey.⁶ Pltf's Ex 71. This evidence all points to the conclusion that Steffey had final authority concerning the decision to terminate Minter and is the requisite policymaker.

6 Although Minter withdrew her appeal of Steffey's decision (Pltfs' Ex 71), "federal courts have not required exhaustion of state judicial remedies before hearing a § 1983 claim." Maddox v. Clackamas County Sch. Dist. No. 25, 293 Or. 27, 34-35, 643 P.2d 1253, 1257 (1982), citing Steffel v. Thompson, 415 U.S. 452, 472-73 (1974); Monroe v. Pape, 365 U.S. 167, 183 (1961).

The record also contains evidence that Steffey knew that Brown was retaliating against Minter because she blamed him for her misconduct. Brown's November 20, 2000 e-mail to Matthews, with copies to Oswald, Steffey, and Multnomah County attorney Short, plainly states that Minter "was terminated because her conduct had shifted from one of remorse and apology for action taken trying to shift the blame to me through a series of false allegations." Pltf's Ex 20, p. 1. Viewing the evidence in Minter's favor, this is sufficient to support a ratification theory.

Thus, summary judgment on the § 1983 claim against Multnomah County and Brown in his official capacity should be denied on the basis of a possible ratification theory.

B. Claim against Brown in his Individual Capacity

To prevail on her § 1983 claim against Brown in his individual capacity for violating her First Amendment rights, Minter "must initially prove that her statements were constitutionally protected." Johnson v. Multnomah County, Oregon, 48 F.3d 420, 422 (9th Cir 1995), Gillette v. Delmore, 886 F.2d 1194, 1197 (9th Cir 1989). Minter's "speech cannot be protected unless it `substantially involved matters of public concern.'" Johnson, 48 F.3d at 422, quoting McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir 1983). Once Minter 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 [Minter's] freedom of speech. Id, citing Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

Defendants argue that: (1) Minter's speech does not involve a matter of public concern; (2) Brown's interest in assuring effective and efficient fulfillment of County operations outweighs Minter's interest in her freedom of expression; and (3) even if Minter's speech is constitutionally protected, it was not a substantial motivating factor in her termination. For the reasons that follow, defendants' arguments fail.

1. Matter of Public Concern

"Speech involves a matter of public concern when it can fairly be considered to relate to `any matter of political, social, or other concern in the community . . . [and] must be determined by the content, form, and context of a given statement, as revealed by the whole record.'" Id, quoting Connick v. Myers, 461 U.S. 138, 146 (1983). Minter's allegations must rise above the "minutiae of workplace grievance" and concern "information that is of inherent `relevance to the public's evaluation of the performance of government agencies.'" Id at 425, quoting Havekost v. United States Dep't of Navy, 925 F.2d 316, 319 (9th Cir 1991); McKinley, 705 F.2d at 1114. "The employee's motivation and the chosen audience are among the many factors to be considered in light of the public's interest in the subject matter of the speech." Id.

While Minter characterizes her speech as relating to falsified records caused by Brown's intimidation, defendants characterize Minter's speech as complaining only about Brown's demeanor or management style and as motivated by guilt springing from her own wrongdoing, rather than from a desire to protect the public's interest.

Assuming all the facts in her favor, Minter reaches the requisite public concern threshold. Minter told a Human Resources official and Brown before the decision was made to terminate her that Brown had intimidated her into falsifying the records. Moreover, Minter's statements to Oswald, Guiney and others made it obvious that she was asserting that Brown had intimidated her into reporting a false number even if she did not utter those exact words. Pltf's Exs 16, 23, 24, 40, p. 2 (Oswald's note stating "back up documentation to justify the GF transfer"), 54, p. 1 (Guiney's note stating "has GF transfer taken place").

Thus, even if motivated by guilt, Minter's speech concerned a management employee of a governmental body who intimidated a subordinate into falsifying documents in an attempt to garner approximately $200,000 more funds for his division than appropriate for reimbursement of operating expenses. Minter's statements regarding misuse of public funds are precisely the type of statements which rise to a matter of public concern and should be protected.

2. Weighing of Interests

Once it is determined that an employee's speech is a matter of public concern, the burden shifts to the public employer to establish that the speech is worthy of suppression due to its adverse impact on legitimate government interests. Rankin v. McPherson, 483 U.S. 378, 388 (1987). Moreover, an employer must establish more than mere disruption of a workplace to prevail under the balancing test analysis; it must prove actual injury to legitimate interests of the employer by virtue of the protected speech. Johnson, 48 F.3d at 420. The Ninth Circuit has adopted the Third Circuit's finding that "it would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office." Id at 427.

Defendants assert that Brown's interest in assuring the discharge of official duties outweighs Minter's interest in free speech because her statements interfered with the performance of her duties and with her working relationships. Minter counters that her act of reporting Brown's conduct does not demonstrate that she failed to fulfill her duties, shattered Brown's confidence in her work product, or jeopardized the operations and reputation of the Facilities Division.

Minter has produced evidence that Multnomah County suffered no actual injury, let alone a disruption in the workplace. For example, Brown's first reaction was not confidence-shattering, as he now alleges, but rather a calm response of "we'll cover it up." Additionally, Brown must have had some faith in Minter's abilities since he was initially open to finding Minter a new position within the Facilities Division, and, in an effort to maintain her professional integrity, gave Minter the option to resign. Lastly, the earmarked funds were ultimately unavailable due to budget cuts. Although Minter may have caused some intradepartment turmoil by falsifying the records and then blaming Brown, the evidence is at best disputed as to what actual injury to a legitimate governmental interest that Multnomah County actually suffered.

3. Substantial Motivating Factor

A plaintiff must show that her protected speech was a substantial motivating factor in the employer's decision to terminate her. Mount Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 287 (1977). Defendants argue that Minter was terminated for knowingly falsifying accounting records and that her allegation that Brown intimidated her into it had nothing to do with the termination decision. However, as already discussed, Brown initially did not intend to terminate Minter, but asked that she either resign or agree to his assistance in finding her another position within the Facilities Division. His termination decision did not occur until after Minter withdrew her decision to resign and he learned that she was telling others that he had intimidated her into falsifying the records and "trying to shift the blame to [Brown] through a series of false allegations." Pltf's Ex 20, p. 1. Thus, the evidence reveals a genuine issue of material fact as to whether the substantial motivating factor in Brown's decision was her protected speech.

Accordingly, Brown in his individual capacity is not entitled to summary judgment against the § 1983 claim.

III. Wrongful Discharge (Third Claim)

Multnomah County argues that it is entitled to summary judgment on the wrongful discharge claim because either her claim for violation of the Oregon Whistleblower Act or for violation of § 1983 provides her with an adequate remedy. As discussed below, this court agrees.

A. Legal Standard

"The elements of a wrongful discharge claim are simple: there must be a discharge and that discharge must be `wrongful.'" Moustachetti v. State of Oregon, 319 Or. 319, 325, 877 P.2d 66, 69-70 (1994). A wrongful discharge is a discharge for reasons that contravene public policy. Nees v. Hocks, 272 Or. 210, 218, 536 P.2d 512, 515 (1975).

Oregon courts generally have allowed such "public policy" tort actions in two situations: (1) when an employee is fired for performing an important public duty or societal obligation and (2) when an employee is fired for exercising private statutory rights that relate to the employment and that reflect an important public policy.

Babick v. Oregon Arena Corp., 160 Or. App. 140, 143-44, 980 P.2d 1147, 1149 (1999).

Moreover,

Determining whether a public duty exists is a question of law. Id at 144, 980 P.2d at 1150. That determination requires that we find a public duty, not create one, using "constitutional and statutory provisions or the case law of this or other jurisdictions." . . . [A] public duty may arise from evidence of a "substantial public policy that would . . . be `thwarted' if an employer were allowed to discharge its employee without liability."

Id at 144, quoting Banaitis v. Mitsubishi Bank, Ltd., 129 Or. App. 371, 377-78, 879 P.2d 1288, rev dismissed, 321 Or. 511, 900 P.2d 508 (1995) (emphasis in original) (internal citations omitted).

B. Adequate Remedies

After carefully analyzing Oregon law, which is far from clear, this court adopted the following test to determine when a plaintiff may state a wrongful discharge claim:

Given the stated purpose of this tort in Oregon, and given that it was created to establish only a narrow exception to the employment-at-will doctrine, this court concludes that a claim for common law wrongful discharge is not available in Oregon if (1) an existing remedy adequately protects the public interest in question, or (2) the legislature has intentionally abrogated the common law remedies by establishing an exclusive remedy (regardless of whether the courts perceive that remedy to be adequate).

Draper v. Astoria Sch. Dist. 1C, 995 F. Supp. 1122, 1130-31 (D Or 1998).

Thus, if either Minter's Whistleblower Act claim or § 1983 claim provides an adequate remedy, then she may not pursue a wrongful discharge claim. This court found that the § 1983 claim in Draper did provide an adequate remedy, barring the wrongful discharge claim, based on the following analysis:

A § 1983 claim will not always provide a remedy adequate to preclude an action for wrongful discharge. For instance, a § 1983 claim ordinarily is unavailable against private employers. It also is subject to unique defenses, such as qualified immunity. On the facts of this particular case, however, § 1983 does provide an adequate remedy. All defendants admittedly acted under color of state law. For the reasons set forth later in this opinion, it appears that defendants will not be entitled to qualified immunity (assuming, of course, that Draper can prove her allegations). The measure of damages under § 1983 is more generous than it would be under a wrongful discharge claim, since § 1983 claims against public bodies are exempt from the damages cap established by the OTCA. In addition, 42 U.S.C. § 1988 provides for an award of attorney fees. Moreover, unlike a wrongful discharge claim, Draper can pursue her § 1983 claims against the individual defendants and may also seek punitive damages against them. The standard of proof (preponderance of the evidence) is the same under both claims, as is the statute of limitations (two years under either theory).

Finally, for purposes of this case, the elements of Draper's prima facie case are substantially similar for both claims. For each claim, Draper will have to prove an adverse employment action (the termination), that she engaged in protected activity, and causation (that she was terminated in retaliation for having engaged in that protected activity). Likewise, to prevail on her § 1983 claim, Draper will have to demonstrate that the speech in question concerned issues of public importance. Given the nature of her allegations in this particular case — and this may not be true in every wrongful discharge case — Draper will have to satisfy essentially the same "public importance" standard in order to establish her prima facie case of wrongful discharge.

Id at 1131 (citations omitted); followed by Moore v. Portland Dev. Comm'n, 1999 WL 373789 (D Or 1999) (holding that no wrongful discharge exists when § 1983 provides adequate statutory remedies).

Minter does not dispute that she is afforded the same potential remedies on all three claims, namely compensatory damages, punitive damages, equitable relief, attorney fees, and costs. Instead, she argues that her wrongful discharge claim is precluded only if she prevails on the merits of one of her other claims. In other words, the wrongful discharge claim should provide her a third bite at the apple; if she loses both her Whistleblower and § 1983 claims, then her remedy is inadequate and she should be able to pursue a wrongful discharge claim. Alternatively, if she wins one of her other claims, then she has obtained an adequate remedy and could not pursue a wrongful discharge claim.

The problem with Minter's approach is that it first requires a court to rule on the merits of the other claims to determine if she has won or lost them, making it impossible to dismiss a wrongful discharge claim short of summary judgment or trial. Contrary to Minter's approach, inquiring into the adequacy of remedies as a matter of law does not first require a determination as to the merits of the claims. Instead, the only inquiry is whether an alternative claim, if proven, provides an adequate remedy.

The decision in Draper did not conclude that a § 1983 claim will always provide an adequate remedy to a wrongful discharge claim, pointing out, for example, that a § 1983 remedy is ordinarily unavailable against a private employer or may be barred by qualified immunity. Both of those examples, however, may first require a determination on the merits, such as whether a private employer acted jointly with a state actor or whether a constitutional violation occurred. Instead, the analysis must center on the adequacy of the remedy available under another claim for the same alleged conduct.

Here, both the § 1983 and wrongful discharge claims seek to remedy the same alleged conduct, namely the termination of Minter's employment because of her protected speech. The § 1983 claim alleges that defendants infringed upon her First Amendment right to free speech by terminating her. Complaint, ¶¶ 13-14. The wrongful discharge claim similarly alleges that Multnomah County fired Minter for performing the important public duty of exercising her First Amendment right to free speech. Id at ¶¶ 18-19. The § 1983 claim provides the same remedies as the wrongful discharge claim for the same violation of Minter's First Amendment right.

As explained in Draper, the wrongful discharge tort "never was intended to be a tort of general application but rather an interstitial tort to provide a remedy when the conduct in question was unacceptable and no other remedy was available." Draper, 995 F. Supp. at 1128 (citation omitted). There is no need for a state common law claim to remedy a federal right which is fully protected by a federal claim. This court recognizes that a claim under § 1983 may pose some hurdles for plaintiffs that a wrongful discharge claim may not, such as overcoming a qualified immunity defense. Even so, it would be anomalous for a plaintiff to have more rights under a state common law claim than under federal law to vindicate the same federal right.

Thus, this court concludes that because Minter's § 1983 claim is premised upon the violation of the First Amendment, her wrongful discharge claim premised upon that same violation of the First Amendment is precluded. Accordingly, defendants' motion for summary judgment should be granted as to the wrongful discharge claim.

RECOMMENDATION

For the reasons stated above, defendants' Motion for Summary Judgment (docket #14) should be GRANTED as to the First Claim for violation of the Oregon Whistleblower Act and the Third Claim for wrongful discharge, and DENIED as to the Second Claim for violation of § 1983.

SCHEDULING ORDER

Objections to the Findings and Recommendation, if any, are due May 31, 2002. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.

If objections are filed, the response is due no later than June 17, 2002. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.