Opinion
Case No. 6:19-cv-01145-MK
01-26-2021
GREG ROBINSON, Plaintiff, v. CITY OF DONALD; HEIDI BELL; ALONZO LIMONES; and BRAD OXENFORD. Defendants.
FINDINGS AND RECOMMENDATION
KASUBHAI, United States Magistrate Judge:
Plaintiff Greg Robinson filed this action against Defendants City of Donald (the "City"), Heidi Bell, Alonzo Limones, and Brad Oxenford (collectively "Defendants"), alleging a due process claim under 42 U.S.C. § 1983. See Compl. ¶¶ 9-14, ECF No. 1. Currently before the Court is Defendants' Motions for Summary Judgement. ECF No. 16. The Court heard argument on Defendants' motion on November 10, 2020. ECF No. 29. For the reasons that follow, Defendants' motion should be GRANTED.
BACKGROUND
The City of Donald employed Plaintiff as a utility operator from June 2013 through January 2019. Robinson Decl. ¶¶ 3, 17, ECF No. 24; Montoya Decl., Ex., 3, ECF No. 20-1. On Plaintiff's first day of employment, he received a copy of the 2006 City of Donald Employee Handbook ("2006 Handbook") and Plaintiff signed an acknowledgement confirming his receipt. Montoya Decl. Ex., 3 at 11-46. The 2006 Handbook provided that dismissal of any employee would not occur without a due process interview. Id. at 43-44. However, § 3.2 of the 2006 Handbook provided that the City "reserve[d] the right to modify or amend these policies at any time, with or without notice." Id. at 14. Plaintiff also testified that the City had the discretion to change personnel policies "as [the City] saw fit[.]" Id. at 4.
The Court notes that the nine accompanying exhibits to the Montoya Declaration span 148 pages. The Court's references to specific page numbers correspond to the page number of the attachment Electronic Court File at ECF No 20-1 rather to page numbers of individual exhibits.
In November 2016, the City Council passed Resolution No. 428-16, which approved and adopted a revised Employee Handbook ("2016 Handbook"). Id. at 52-53. The resolution also specified that any "previous editions of the Employee handbooks [were] obsolete." Id. The 2016 Handbook itself similarly provided that it superseded any prior handbooks or written policies that were inconsistent with its provisions. Id. at 55.
The 2016 Handbook also explained that "all employment at the City of Donald is 'at will,'" and that either the employee or the City could terminate employment at any time. Id. The new Corrective Action/Discipline Policy further explained that the City could dismiss an employee "at any time and for any reason, with or without advance notice or other prior disciplinary action." Id. at 94.
Plaintiff signed an acknowledgment confirming his receipt of this new handbook in November 2016:
I have read this acknowledgement carefully before signing.
__________
Employee Signature __________
Date
The original of this document will be kept in the Employee's personnel file. A copy will be provided to the Employee upon request.
Id. at 97. Plaintiff testified that he understood the signed acknowledgment to mean that either he or the City could choose to terminate employment at any time. Id. at 6-8.
In June 2018, the City Council passed Resolution No. 462-18, which approved and adopted a revised Employee Handbook ("2018 Handbook") and also specified that any previous handbooks were thereby obsolete. Id. at 98-99.
The 2018 Handbook includes the same language included in the 2016 Handbook—that employment was at-will and that the City had the discretion to choose which disciplinary measures to impose. Id. at 101. Plaintiff again signed an acknowledgment confirming receipt of 2018 Handbook and testified that he understood these provisions to hold the same meaning as the 2016 Handbook provisions:
I have read this acknowledgement carefully before signing.
__________
Employee Signature 7/9/18
Date
The original of this document will be kept in the Employee's personnel file. A copy will be provided to the Employee upon request.
Id. at 148; see also id. at 8-9. Plaintiff also testified that at no time during his employment did he enter into any alternative "agreement with a mayor for the City of Donald that modified [his] at-will relationship with the City of Donald." Id. at 9.
Plaintiff was dismissed from his employment on January 18, 2019. Robinson Decl. ¶¶ 17, 20, ECF No. 24. Three days prior, Plaintiff sent a text message to his supervisor, Defendant Limones, notifying him that Plaintiff would be absent from work that day. Robinson Decl. ¶ 4, ECF No. 24. After discussing this absence, Defendant Bell told Defendant Limones that they would write a letter to remind Plaintiff regarding the City's absence reporting policy. Decl. Limones ¶ 4, ECF No. 19. That evening, Plaintiff sent a text message to Defendant Limones informing him that Plaintiff would also miss work the following day. Robinson Decl. ¶ 5, ECF No. 24. The next morning, Defendants Bell and Limones prepared the letter. Edison Decl., Ex. 4 at 1-4, ECF No. 25-4. When Plaintiff returned to work on January 17, Defendant Limones met with him and presented the letter along with an attached section of the employee handbook. Id.; Robinson Decl. ¶ 7, ECF No. 24. Defendant Limones asked Plaintiff to sign the letter as acknowledgment of reminder of City policy. Id. Plaintiff refused and left the meeting. Id.
Later that morning, Defendants Limones and Bell met with Plaintiff to discuss the letter and the City policy. Robinson Decl. ¶ 10, ECF No. 24. As Defendant Bell began to explain the policy, Plaintiff unsuccessfully attempted to interject. Id. Defendant Bell then attempted to continue her explanation of the City policy, but Plaintiff stood up and left the meeting. Id. at ¶ 11. On his way out, Plaintiff told Defendant Bell that he would call the Mayor, Defendant Oxenford. Id. Shortly thereafter, Plaintiff called Defendant Oxenford to discuss this incident. Id. at ¶ 14; Oxenford Decl. ¶ 3, ECF No. 17. Defendant Oxenford then called Defendant Bell to investigate the incident and discuss the City's policies and expectations. Oxenford Decl. ¶ 4, ECF No. 17. Later that day, Defendant Limones called Plaintiff and notified him that he had placed Plaintiff on paid leave for the next two days. Limones Decl. ¶ 9, ECF No. 19.
On January 18, Defendants Bell and Limones met to discuss Plaintiff's conduct. Bell Decl. ¶ 4, ECF No. 18. Although they did not make a final decision with regards to employee discipline at the time, Defendant Limones called Plaintiff and asked him to report to City Hall at 2:00 p.m. Limones Decl. ¶¶ 4, 10, ECF No. 19. Plaintiff called Defendant Oxenford and asked him to attend the meeting. Robinson Decl. ¶ 15, ECF No. 24.
At the 2:00 p.m. meeting with Defendants, Plaintiff was asked to describe the previous day's incident and whether he wanted to continue his employment. Bell Decl. ¶ 5, ECF No. 18. After describing the incident, Plaintiff stated his desire to continue working for the City. Robinson Decl. ¶ 16, ECF No. 24. After the meeting, Defendants met to discuss Plaintiff's future with the City. Bell Decl. ¶ 6, ECF No. 18. As a result of that discussion, Defendant Bell decided to terminate Plaintiff's employment. Id. Later that day, Defendant Bell called Plaintiff and notified him of his termination. Robinson Decl. ¶ 17, ECF No. 24.
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
This case hinges on whether Plaintiff had a protected property interest in his continued employment with the City. Defendants assert that Plaintiff's claim fails because he cannot establish such a protected interest. Because the Court finds that Plaintiff was an at-will employee at the time the City terminated him, he cannot establish that he had a protected property interest in his continued employment and therefore his procedural due process claim fails as a matter of law.
To prevail on a § 1983 procedural due process claim, "the plaintiff must establish the existence of '(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of process.'" Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 983 (9th Cir. 2011) (quoting Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). Thus, "[t]he first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in 'property' or 'liberty.'" American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999); see also Board of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972) ("The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property."); Brewster v. Bd. of Educ., 149 F.3d 971, 982 (9th Cir. 1998) ("[t]o state a claim under the Due Process Clause, [a plaintiff] must first establish that he possessed a 'property interest' that is deserving of constitutional protection").
"Property interests . . . are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Board of Regents of State Colls., 408 U.S. at 577; Blantz v. Cal. Dep't of Corrs. & Rehab., 727 F.3d 917, 922 (9th Cir. 2013). "A government employee has a constitutionally protected property interest in continued employment when the employee has a legitimate claim of entitlement to the job." Portman, 995 F.2d at 904; see also Blantz, 727 F.3d at 922 ("[G]overnment employees can have a protected property interest in their continued employment if they have a legitimate claim to tenure or if the terms of the employment make it clear that the employee can be fired only for cause." (emphasis in original)).
Thus, "[p]ublic employees who may be dismissed only for cause possess a property interest in their continued employment." Walls v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 968 (9th Cir. 2011) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985)). However, neither "an abstract need or desire" nor "a unilateral expectation" of continued employment suffices to create a property interest. Board of Regents of State Colls., 408 U.S. at 577; see also Portman, 995 F.2d at 904 ("mere expectation that employment will continue does not create a property interest"). In other words, "[i]f under state law, employment is at-will, then the claimant has no property interest in the job." Portman, 995 F.2d at 904; see also Brady v. Gebbie, 859 F.2d 1543, 1548 (9th Cir. 1988) ("Where state employees serve at the will of the appointing authority, . . . there is no . . . reasonable expectation of continued employment, and thus no property right.").
As a preliminary matter, the Court observes that, under Oregon law, there is a legal presumption that absent a contractual, statutory or constitutional requirement, an employer may discharge an employee at any time and for any reason. Patton v. J.C. Penney Co., 719 P.2d 854, 856 (1986); Brett v. City of Eugene, 880 P.2d 937, 939 (1994).
Plaintiff asserts, however, that he was entitled "to be provided due process in the event of termination proceedings" based on the terms of the 2006 Employee Handbook, which contained provisions for a Due Process Interview. Pl.'s Opp'n 6, ECF No. 23. The 2006 Handbook, however, was superseded by the 2016 and 2018 Handbooks that expressly provided that Plaintiff's employment was at will. See Montoya Decl., Ex. 6 at 55 ("All employment at the City of Donald is 'at will.' That means that either you or the City of Donald may terminate this relationship at any time, for any reason, with or without cause or notice . . . ."); id. at 101 (same), ECF No. 20-1. Further, there is no meaningful dispute that the City retained the option to unilaterally modify the conditions of Plaintiff's employment based upon the express terms of the 2006 Employee Handbook. Montoya Decl., Ex. 3 at 14 (the City "reserves the right to modify or amend these policies at any time, with or without notice"), ECF No. 20-1.
"Accordingly, because Plaintiff was 'an at-will employee, [he] had no property interest in his job' and an 'action under the Due Process Clause cannot lie for his termination.'" Osollo v. Darling-Hammond, 2016 WL 7911914, at *5 (C.D. Cal. Dec. 14, 2016)") (quoting Portman, 995 F.2d at 905)), adopted, 2017 WL 277568 (C.D. Cal. Jan. 20, 2017); see also Ross v. Sw. Oregon Cmty. Coll., No. 6:16-cv-118-TC, 2017 WL 1650025, at *2 (D. Or. Apr. 27, 2017) ("If, under state law, employment is at-will, then the claimant has no property interest in the job.").
Further, to the extent Plaintiff argues he reasonably believed that the 2006 Handbook was in effect at the time of his termination, such a subjective belief is not relevant in assessing whether Plaintiff had a protected property interest in his continued employment with the City. See, e.g., Ross, 2017 WL 1650025, at *2 ("Although plaintiff was employed for a significant period of time, her own subjective and unilateral belief that she was entitled to continued employment is insufficient to entitle her to procedural due process protections."); Giebel v. Bonilla, at *2 (D. Mont. Dec. 2, 2008) (holding a plaintiff's "subjective beliefs . . . do not create a property interest"), aff'd, 404 F. App'x 184 (9th Cir. 2010).
On the morning of the November 2020 oral argument on the pending motion for summary judgment, Plaintiff submitted a supplemental declaration that included two pages of deposition testimony from Defendant Heidi Bell's April 2020 deposition. See ECF No. 28-1. The Court accepted the untimely submission during the hearing and has considered that evidence in its recommendation on the present motion. However, the Court declines to consider arguments raised for the first time during the November 2020 oral argument. See Makaeff v. Trump Univ., LLC, 2014 WL 2743244, at *4 n.2 (S.D. Cal. June 17, 2014) ("the Court need not consider issues raised for the first time during oral argument").
The Court should find that because Plaintiff was an at-will employee at the time of his termination he cannot establish the that he had a protected property interest in his continued employment. As such, his procedural due process claim fails as a matter of law.
Because the Court concludes Plaintiff cannot establish a constitutional violation as a matter of law, it need not reach the issues of whether the individual Defendants are entitled to qualified immunity or whether the City is subject to liability under Monell v. Dep't of Soc. Services, 436 U.S. 658, 694 (1978). --------
RECOMMENDATION
For the reasons above, Defendants' Motion for Summary Judgment (ECF No. 16) should be GRANTED and this case should be DISMISSED.
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 (9th Cir.1991).
DATED this 26th day of January 2021.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI (He / Him)
United States Magistrate Judge