Opinion
Civil No. 03-731-PA.
March 7, 2005
OPINION AND ORDER
Plaintiff Raymond M. Tercek brings this action against defendants City of Gresham (the City); Carla Piluso, Chief of Police; and Robert A. Fussell, City Manager. Plaintiff alleges that defendants violated his procedural due process rights when they eliminated his position as police captain. Plaintiff also brings state law claims against the City for wrongful discharge, breach of contract, promissory estoppel, and intentional infliction of severe emotional distress.
Plaintiff concedes that summary judgment should be granted against his claims for defamation and for violation of due process based on injury to his reputation.
Defendants move for summary judgment. I grant defendants' motion.
BACKGROUND
Plaintiff was employed from May 1, 1997, until December 5, 2002, as a captain in the Gresham Police Department. Plaintiff alleges that the Police Chief who recruited him, Bernie Giusto, told him that if the City ever eliminated the captain position, plaintiff would be given an alternate vacant position. Giusto's alleged promise to plaintiff was never put in writing.
Plaintiff was one of two captains, who were immediately below the chief in rank. Plaintiff states that as a captain, he held officers to higher standards than were imposed by previous supervisors. He supervised and on occasion reprimanded defendant Piluso, who was then a lieutenant.
In October 2002, Giusto left his position as police chief. Defendant Fussell, the City Manager, promoted Piluso to succeed Giusto as chief.
On December 5, 2002, Piluso told plaintiff that his position was being eliminated because of the City's budget problems. Plaintiff contested the layoff, citing the alleged promise by Giusto.
The layoff notice for plaintiff stated that it was "effective immediately." Defendants state that Piluso decided to relieve plaintiff of his duties immediately to prevent possible disruption in the department. However, plaintiff received full pay and benefits through January 31, 2003.
Plaintiff states that he sought an appointment to a vacant lieutenant position, but defendants refused to appoint him. Defendants state that plaintiff was told to apply and compete for the lieutenant position against other applicants, but he refused to do so.
STANDARDS
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any" demonstrate "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law defines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All justifiable inferences must be viewed in the light most favorable to the non-moving party. County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001). The party moving for summary judgment bears the initial burden of showing the absence of a genuine issue of material fact. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). The burden then shifts to the non-moving party to go beyond the pleadings and set forth specific facts demonstrating there is a genuine issue for trial. Id.; Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001).
DISCUSSION
I. Procedural Due Process Claims
Plaintiff's first two claims allege violations of his right to procedural due process. To state a claim under 42 U.S.C. § 1983, plaintiff must establish that there is "(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of process." Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993).
At the outset, plaintiff must establish that he had a constitutionally protected property right in his continued employment. "Under Oregon law, public employee tenure rights arise solely from statutes or regulations adopted pursuant to them." Koepping v. Tri-County Metro. Transp. Dist. of Oregon, 120 F.3d 998, 1005 (9th Cir. 1997) (citing Brady v. Gebbie, 859 F.2d 1543, 1547 (9th Cir. 1988)).
In asserting that he had a protected property interest, plaintiff relies on the Gresham Administrative Rules (GARs) and the alleged oral agreement with former Chief Giusto. Plaintiff claims that defendants violated his alleged property interest by (1) giving him inadequate notice of the layoff; (2) failing to reinstate or reappoint him; and (3) failing to offer him another position.
Plaintiff's separation from employment was a "termination" under the GARs. The rule governing termination provides:
3.20.030 Termination. The involuntary separation of City employment for reasons other than discipline. The Manager may terminate an employee because of lack of work or funds, abolishment of a position, substantial changes in the organization, or any other reason not reflecting discredit upon the employee. At least two weeks before the effective date of termination, the Manager will give written notice of the termination to the employee, explaining the reason and providing a written evaluation of the employee's performance.
(a) The Manager will consider terminations based on the City's administrative needs and may consider:
(1) The employee's past work performance and classification.
(2) An evaluation of the employee's qualifications or special skills as related to the City's requirements.
(3) Length of employment.
(b) An employee whose work performance has met expectation and who is terminated will be eligible for reinstatement in other positions which require similar qualifications, and involve similar duties and responsibilities as the previous job.
Plaintiff contends that GAR 3.20.030 creates a constitutionally protected property interest in continued employment with the City. He alleges that defendants violated GAR 3.20.030 by (1) failing to provide two weeks notice of the termination and (2) failing to provide a written evaluation of his performance.
A. No Protected Property Interest Under GAR 3.20.030
Plaintiff alleges that GAR 3.20.030's provision that a terminated employee "will be eligible for reinstatement in other positions which require similar qualifications" grants him a protected property right to reinstatement.
The key word in the regulation is "eligible." Merely being "eligible" for reinstatement in another position does not guarantee a right to employment. Many applicants might be "eligible" for a position will be offered to only one applicant. The rejected "eligible" candidates would suffer no constitutional injury. Because GAR 3.20.030 does not mandate reinstatement, it does not create a constitutionally protected right to reappointment or reinstatement to an open position.
B. Or. Rev. Stat. § 236.360(1)
Plaintiff cites Or. Rev. Stat. § 236.360(1) as creating a constitutionally protected property right in continued employment. The statute provides that "[n]o disciplinary action shall be taken against a police officer without just cause."
As plaintiff concedes, however, his termination was not disciplinary. Section 236.360(1) does not apply here.
C. Requirement of Two Weeks' Notice
GAR 3.20.030 requires that an employee be given notice of termination "[a]t least two weeks before the effective date of termination." Here, the layoff notice for plaintiff was effective immediately. However, plaintiff received full pay and benefits for about two months after the notice of termination.
Assuming, for summary judgment purposes only, that the two-week notice requirement gave plaintiff a protected property interest, at most the property interest would entitle plaintiff to two weeks' pay and benefits after the termination notice. Plaintiff received about two months' pay and benefits after the termination date. Therefore, even assuming that defendants did violate the two-week notice requirement, and that the requirement created a constitutionally protected property interest, plaintiff cannot claim damages.
D. Failure to Provide Written Evaluation
GAR 3.20.030 requires that terminated employees be given written evaluations. Defendants did not provide plaintiff with a written evaluation.
The written evaluation requirement is procedural. Such procedural requirements do not create a constitutionally protected property interest unless they significantly limit the decision maker's discretion. Clemente v. United States, 766 F.2d 1358, 1364-65 (9th Cir. 1985). Here, the written evaluation requirement does not significantly limit the City Manager's discretion, so the requirement could not create a protected property interest.
E. Alleged Oral Agreement with Guisto
As to any alleged oral agreement made by former Chief Giusto with plaintiff, there is no evidence that defendants were parties to such an agreement. Plaintiff has not established that defendants could be bound by a promise made by a former chief of police to place plaintiff in a lower-ranking position, should one be available.
F. Other Due Process Arguments
Plaintiff also alleges that the City had a long practice of avoiding layoffs, and instead placed employees in other positions. Plaintiff argues that this alleged practice created a protected property interest.
I conclude, however, that the City's alleged practice cannot create a protected property interest. A practice or custom cannot create employee tenure rights under Oregon law. Koepping, 120 F.3d at 1005.
Plaintiff also argues that he was entitled to a meaningful opportunity for a hearing. I agree with defendants that because plaintiff has not shown a constitutionally protected property interest in continued employment, he had no right to a hearing under federal law.
Finally, plaintiff argues that Piluso's decision to terminate him was arbitrary and capricious. Defendants explain that Piluso was faced with a budget shortfall and needed to cut spending. Piluso decided to eliminate highly paid administrative positions rather than eliminating line officer positions.
Under the highly deferential abuse of discretion standard of review for agency decisions, I conclude as a matter of law that Piluso did not commit a clear error of judgment, or fail to provide a rational explanation for her decision. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971) (describing standard of review for agency decisions); Friends of the Wild Swan, Inc. v. U.S. Fish Wildlife Serv., 12 F. Supp. 2d 1121, 1131 (D. Or. 1997). Courts should not second-guess discretionary decisions such as the one disputed here.
Defendants are entitled to summary judgment on plaintiff's procedural due process claims.
II. State Law Claims
A. Wrongful Discharge
Plaintiff claims that he was terminated in retaliation for his efforts to raise standards and to increase accountability for officers.
"The elements of a wrongful discharge claim are simple: there must be a discharge, and that discharge must be `wrongful.'"Moustachetti v. State, 319 Or. 319, 325, 877 P.2d 66, 69 (1994) (citation omitted). A discharge may wrongful if the employee was terminated for exercising a job-related right of important public interest, or for complying with a public duty.Sheets v. Knight, 308 Or. 220, 230-31, 779 P.2d 1000, 1006-07 (1989) (summarizing wrongful discharge decisions), overruled in part on other grounds, McGanty v. Staudenraus, 321 Or. 532, 549-50, 901 P.2d 841, 852-53 (1995).
Here, plaintiff has failed to show that his criticisms amounted to more than complaints about internal police department issues. Such complaints cannot support a claim for wrongful discharge.
B. Breach of Contract and Promissory Estoppel
Plaintiff brings claims for breach of contract and promissory estoppel.
1. Breach of Contract
Plaintiff bases his claim for breach of contract on his alleged oral agreement with former Chief Giusto. Plaintiff contends that Giusto promised that if the captain position was eliminated, plaintiff would be given another job.
Oral promises may support a claim for breach of contract.Koeping, 120 F.3d at 1002. However, employment contracts "cannot be created by mere casual or unauthorized comments."Butler v. Portland General Electric Co., 748 F. Supp. 783, 792 (D. Or. 1990), aff'd without opinion, Flynn v. Portland General Elec. Co., 958 F.2d 377 (9th Cir. 1992). Because the City's regulations do not authorize oral employment agreements, plaintiff's breach of contract claim fails.
2. Promissory Estoppel
Plaintiff contends that even if he has no breach of contract claim, he has a claim for promissory estoppel, which allows enforcement of "promises that would otherwise be too indefinite to form a binding contract. . . ." Staley v. Taylor, 165 Or. App. 256, 261, 994 P.2d 1220, 1223 (2000).
There is no evidence that the alleged oral promise made by former Chief Giusto to plaintiff was more than a personal commitment by Giusto, rather than a promise binding on Guisto's successors. Plaintiff may not use a claim for promissory estoppel to evade the City's requirement that employment contracts be executed in writing by the City Manager.
C. Intentional Infliction of Severe Emotional Distress
To establish a claim for intentional infliction of severe emotional distress, a plaintiff must show that (1) the defendant intended to inflict severe emotional distress on the plaintiff; (2) the defendant's acts were the cause of the plaintiff's severe emotional distress; and (3) the defendant's acts were an extraordinary transgression of the bounds of socially tolerable conduct. McGanty, 321 Or. at 543, 901 P.2d at 849. "[A] defendant possesses the requisite intent for purposes of an IIED claim if he desires to cause [the] consequences of his act, or he believes that the consequences are substantially certain to result from it." Bibeau v. Pacific Northwest Research Found., Inc., 339 F.3d 942, 947 (9th Cir. 2003) (citation omitted).
Conduct that is merely "rude, boorish, tyrannical, churlish and mean" does not establish the required extraordinary transgression of the bounds of socially tolerable conduct. Patton v. J.C. Penney Co., 301 Or 117, 124, 719 P.2d 854, 858 (1986),abrogated in part on other grounds by McGanty, 321 Or. at 549-50, 901 P.2d at 852-53. "While IIED claims are common in the context of employment disputes, Oregon appellate courts have been very hesitant to impose liability for IIED claims in employment settings, even in the face of serious employer misconduct."Robinson v. U.S. Bancorp, Civ. No. 99-1723-ST, 2000 WL 435468, at *8 (D. Or. Mar. 17, 2000) (Findings and Recommendation) (citation omitted), adopted, 2000 WL 33141063 (D. Or. April 20, 2000).
Here, taking the evidence in the light most favorable to plaintiff, defendants' conduct was not egregious enough to support a claim for intentional infliction of severe emotional distress. The use of a former subordinate to ensure that plaintiff collected his belongings on the day of termination no doubt offended plaintiff, but it was not an extraordinary transgression of the bounds of socially tolerable conduct.
CONCLUSION
Defendants' motion for summary judgment (#24) is GRANTED.IT IS SO ORDERED.