Hagen v. City of Eugene et al, No. 6:2010cv06100 - Document 48 (D. Or. 2011)
Court Description: OPINION AND ORDER: Denying Defendants Motion for Summary Judgment 22 . Signed on 02/11/2011 by Chief Judge Ann L. Aiken. (lg)
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Hagen v. City of Eugene et al Doc. 48 FILEIJ'l1 14 11 :J5USDC·ORE IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON BRIAN HAGEN, Civil No. 10 6100-AA OPINION AND ORDER Plainti vs. CITY OF EUGENE, PETE KERNS, JENNIFER BILLS, and TOM EICHHORN, Defendants. B. Goldberg Attorney At Law P.O. Box 86463 Portland, OR 97286 Attorney for pIa iff Jef J. Matthews, Ben Miller Ha Long Gary Rudnick P.C. 360 East lOth Avenue, te 300 Eugene, OR 97401 Attorneys for de s Page 1 - OPINION AND ORDER Dockets.Justia.com AIKEN, Chief Judge: inst plaintiff's Defendants filed a motion to dismiss Complaint. Defendants' mot is denied. BACKGROUND Plaintiff, Brian Hagen, an officer with the Eugene Police Department (~PD), contends he was subjected to a series of adverse employment actions retaliation protected of his First Amendment rights by his supe Bills (Lt. in viol at engaging in sors, defendants Pete Kerns (Captain Kerns), Jennifer Ils), Tom chhorn (Sgt. Eichhorn), and the C y of Eugene. Pla iff began working as a K-9 of of the EPD in March 2004. cer with the K-9 unit Plaintiff's ition as a K-9 cer involved deployment in potentially dangerous situations with members plainti the Special Weapons and Tact became aware various inc and unintended firearms s (SWAT) team. In 2006, s involving igent scharges by SWAT team members while deployed with K-9 team members. The accidental shoot by the SWAT team were allegedly well known within all ranks of the EPD, including the upper levels. Plaintiff and his fellow K-9 of first firearms cers sed their concerns regarding the SWAT team's unsafe ices to ir supervisor, Sgt. Eichhorn. On January 22, 2007, a Eugene Police Officer was shot in another accidental shooting by SWAT. This Page 2 - OPINION AND ORDER ing occurred outdoors, in an area open to the publ . Plaintiff and s fellow K-9 officers again ssed their concerns to Sgt. 2007, a SWAT se pIa chhorn. In April or March 's rifle a ally discha iff, and the bullet allegedly ion. This acc al discha neighborhood in the near cocheted to an unknown occurred in a residential Y of Eugene, in an area to the public. In May 2007, the K-9 officers agreed that serve as their w kesperson in the EPD scussing these safety concerns sors. PIa s and un iff requested a meeting with officials to scuss SWAT sa On May 26, 2007, SWAT was temporarily placed safety issues Schulke~ o cer's union y pract a "stand down" so rvisors, including Sgt. Eichhorn, The K-9 officers once rding SWAT s practices. . On June 13, 2007, plaintiff be reso r K-9 officers met with s as well as aintiff would sentat in expres s. Although ,Of cer Torn ir concerns Kerns temporarily shutdown SWAT to accidental shootings, pIa iff alleges that ration, there was no change the ices return to initially the safety concerns. In April 2008, another meeting was a the K-9 of cers to discuss safety concerns. between SWAT and SWAT members were allegedly unaware of the K-9 officers' concerns because Sgt. chhorn failed to relay Page 3 - OPINION AND ORDER e safety concerns to SWAT. Prior to discussions regarding safety concerns, plaintiff was treated positively by Sgt. Eichhorn. On May 28, 2008, Sgt. Eichhorn informed plaintiff that he would be removed from the K-9 team. Sgt. Eichhorn then announced plaintiff's removal to the EPD and public. On July 28, 2008, EPD Chief Lehner reversed the decision to remove plaintiff from the K-9 team, and instead, on August 27, 2008, Sgt. Eichhorn placed plaintiff on a 90-day Performance Management Plan (PMP). Before plaintiff's first PMP was completed, on October 9, 2008, Sgt. Eichhorn placed plaintiff on a second PMP. On October 10, 2008, Chief Lehner permanently rescinded plaintiff's transfer and declared that plaintiff was "presently performing in a satisfactory manner." Neither of the other two K-9 officers were placed on PMPs. In March 2009, Lt. Bills began an investigation, including interviewing plaintiff, his fellow K-9 officers, as well as Sgt. Eichhorn, regarding communication problems among team members. Lt. Bills ultimately removed plaintiff from the K-9 team due to "admissions" by plaintiff during his interview with Lt. Bills. Plaintiff was the only K-9 team member transferred. STANDARDS Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party Page 4 - OPINION AND ORDER is entitled to a judgment as a matter of law." 56(c). Substantive law on an issue Fed. R. Civ. P. materiality of s t a fact. Contractors Assoc., 809 F.2d 626, 630 ( r. 1987). the evidence is such that a reasonable jury verdict for the nonmoving party dispute. Whether d return a nes i ty of a Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) . The moving party has the burden of es is absence of a genuine issue of material fact. 477 U.S. 317, 323 (1986). If the moving y of a genuine issue of material fact, the nonmoving pa absence must go beyond the pleadings and identify facts which show a issue for trial. Id. at 324. Special rules of construction apply when evaluating summary judgment motions: (1) all reasonable doubts as to the stence of genuine issues of material fact should be resolved st moving party; and (2) all inferences to be drawn underlying facts must be viewed in the light most nonmoving party. T.W. Electrical, 809 F.2d at 630. employment discrimination case, "if e to In an a rational trier of could, on all the evidence, find that the employer's action was taken for impermissibly discriminatory reasons," summary j 5 OPINION AND ORDER for the moving party is inappropriate. Wallis v. J.R. Simplot, 26 F.3d 885, 889 (9th Cir. 1994). DISCUSSION Plaintiff alleges he was subject to a series of adverse employment actions in retaliation for engaging in protected speech; a violation of his First Amendment rights under the U.S. Constitution. Defendants contend plaintiff has failed to allege sufficient facts to state a claim for First Amendment retaliation. Analysis of a public employee's First Amendment retaliation claim involves a sequential five-step inquiry: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Plaintiff bears the initial burden of satisfying the first three steps to properly allege a violation of his First Amendment rights. Once the plaintiff has sufficiently established the first three elements, the burden shifts to the defendant. Plaintiff's satisfaction of the first three elements are disputed. Page 6 - OPINION AND ORDER A. WHETHER THE PLAINTI S SPEECH ADDRESSED AN ISSUE OF PUBLIC CONCERN To satisfy the first element, plaintiff must show that his speech addressed an issue of public concern. The public concern inquiry is purely a 9th Ci~cuit stion of law. Eng, generally af 552 F.3d at 1070. The a liberal construction of "public concern." Roe v. City & County of San Francisco, 109 F.3d 578, 586 (9th Cir. 1997). "Speech involves a matter of public concern when it can fairly be considered to relate to 'any matter pol ical, social, or other concern to the community.'" Eng, F.3d at 1Q70 (quoting Johnson v. Multnomah County, Or., 420, 422 (9th Cir. 1995)). To dete whether 48 F.3d involves public concern, courts generally assess the content, context of the r. 2001) ch. 552 and Weeks v. Bayer, 246 F.3d 1231, 1235 (9th (noting that the public or private nature of the speech as well as the speaker's mot are relevant to the rm:Lnation). Conversely, speech that deals with "pur,ely ivate interests," "individual personnel disputes and grievances," or would be of "no re evaluation of lly not 8 1 7, 822 formance of rnmental agencies" is "public concern." Robinson v. York, 566 F.3d ( 9 t h Ci r. 2 0 0 9 ) F.2d 1110, 1114 to the public's (qu 0 ting 7 05 (9th Cir. 1983)). However, the pr complaint is not dispositive. 7 - OPINION AND ORDER e nature of , 522 F.3d at 1070. Defendants contend plainti public concern. matter 's speech did not involve a Defendants assert pIa involved only private gr s over work conditions and his personal safety. Defendants also rely on the plaintiff's speech was union repres iff's speech that rected solely toward supe sors and s s. In 2006, plaintiff became aware of various incidents involving negligent and unintended firearm discha s by SWAT team members during deployment with K-9 team members. party sputes the occurrence of relies on se incidents. Plaintiff following evidence as proof of public concern: the accidental discharges by SWAT included a ial neighborhood where res Neither ing in a bullet was never found; shootings occurred where police officers were accidentally shot, at least one of which occurred in an area open to the public; and accidental firearms scharges occurred during a bank robbery and while clearing property on a search warrant. Regardless of intiff's concern for his discha rsonal safety, accidental firearms s by police officers whi in the field are inherently public. Members of the EPD are charged with the duty to maintain the peace and s ty of the City of Eugene. When those same members put the general public as well as fellow members of police department in danger, a matter of public concern exists. Page 8 OPINION AND ORDER Moreover, iff safety concerns to llow leges that he continued to voice his 0 sors due to cers as well as s a lack of response by the EPD management." Whether management responds public as well as of EPD quately to safety concerns concerning the of the cers reflects upon t police department. As a matter of law, "competency of the police force is surely a matter of great public concern." 566 F.3d at 822. Therefore, I find that plaintiff's was a matter of public concern as a matter of law. B. WHETHER PLAINTIFF SPOKE AS A PRIVATE CITIZEN OR A PUBLIC EMPLOYEE To satis spoke as a the second element, pIa iff must show that he ivate citizen rather than a public employee. This determination is a mixed question of law and fact. at 1071. "[When] public employees rna their of statements pursuant to 1 duties, the employees are not speaking as citizens rst Amendment purposes, and for Eng, 552 F.3d insulate Constitution does not r communications from oyer discipline." 547 U.S. 410, 421 (2006). In other words, "statements are made in the spea the a r r's ity as a citizen if 'had no official duty' to make the questioned statements, or if the speech was not part of 'performing tasks employee was paid to per 9 OPINION AND ORDER rm.'" Eng, 552 F.3d at 1071 ing 1121, 1127 n.2 (9th Cir. 2008). Defendants contend applicable to all C speci City's general policies, which are employees, as well as EPD policies c to police officers, requi aintiff to report any safety concerns. As a result, defendants a plaintiff's statements were wi a City his offi Plaintiff di ivate citizen. es the fact that his part of his official job duties. PIa were well known wi all 1 Furthermore, plaintiff with Sgt. Eichhorn constitut actions was required as iff argues that he was not "reporting" any safety concerns because occurred a 1 written duties as oyee, as well as an EPD officer, his statements were made as a public employee rather than a empl that because accidental shootings s of the police department. that even if his initial discussion "reporting," the alleged rse rpetrated by the defendants against him er many months of repeat discussions the same concerns. Moreover, plaintiff argues that notwithstanding the written rules that may have required the reporting of unsa practices or working conditions, the actual practice of the City and the EPD al any such s that the sa ty guidelines rements. For example, pI lude sa ntiff y committees; however, such committees are rendered ineffectual and their work' routinely igno ( or rejected by EPD supervisors. PIa Page 10 - OPINION AND ORDER iff further alleges that SWAT has a and history of rejecting officer safety analysis, City and EPD have done little to discourage the resulti Defendants rely solely on description. However, practices. iff's formal job duties listed in a formal written job description are "neither neces that conducting unsa n the scope of the employee's task is professional duties purposes. rst U.S. at 425 ("Formal job scr resemblance to the duties an perform. H) . As the record st fact regarding the scope nor sufficient to demonstrate H Garcetti, 547 ions often bear little actually is expected to , I find many issues of material content of plaintiff's job refore am unable to rule as a matter of responsibilities and law. C. WHETHER PLAINTIFF'S PROTECTED SPEECH WAS A SUBSTANTIAL OR MOTIVATING FACTOR IN THE ADVERSE EMPLOYMENT ACTION Defendants contest grounds. First, de third, element of the test on two s contend plaintiff failed to produce evidence indicating a retaliatory motive. Defendants al plainti was trans rred from his K-9 unit as a result of s inability to communicate effectively with his supervisor and thereby c s ous safety issues. Second, defendants that regardless plaintiff's evidence, plaintiff's mot previously liti and decided in favor of defendants Page 11 - OPINION AND ORDER was a prior arbitration proceeding, consequently providing preclusive effect to the issue of a retaliatory motive. Whether plaintiff's protected speech was a substantial or motivating factor in the adverse employment action is purely a question of fact. Plaintiff must sufficiently allege that defendants retaliated against plaintiff for plaintiff's exercise of his First ~endment rights. Both arguments presented by the defendants, however, focus solely on one adverse employment action, plaintiff's transfer by Lt. Bills; while plaintiff's complaint alleges a series of adverse employment actions taken by the defendants. Plaintiff contends that a series of adverse employment actions were taken in retaliation for engaging in protected speech in violation of his First Amendment rights. Plaintiff relies on the fact that prior to plaintiff's discussion regarding the accidental shootings by SWAT and the lack of response by the EPD, he had no problems with Sgt. Eichhorn regarding his work performance. Plaintiff alleges he and his other K-9 team members first discussed their concerns about the accidental shootings with their supervisor, Sgt. Eichhorn, following various incidents in 2006. Following other incidents in 2007, plaintiff and fellow team members repeatedly expressed safety concerns to Sgt. Eichhorn. Page 12 - OPINION AND ORDER scuss safety In April 2008, SWAT and K-9 officers met to concerns. Pla members express unawareness K-9 officers' sa concerns, as Sgt. Eichhorn had allegedly not rela Following the SWAT iff alleges that during the meeting, scussions, pl y the message. iff was told that he would be removed from his K-9 team and was consequently· successive PMPs. Plaintiff all s that he was on two only member of the K-9 team subject to a PMP. Plaintiff further stipulates that his fellow K-9 officers were unaware of any pe Moreover, plaintiff reI issues regarding intiff. made by r Chief Lehner, one day after the implementation plaintiff's second PMP, which stated that "presently iff was forming in a satisfactory manner." In October 2008, former Chief Lehner permanently rescinded t plainti Furthermore, dog, indicating that pla Lt. 1 In March 2009, pla transfer of record shows that following the completion of the second PMP, Lt. Bills is PMP. s on a statement plaintiff a new iff had success completed his iff was removed the K-9 team by fer Bills, with the approval of ain Kerns. a iff alleges this approval was consistent wi Captain Kern's previous statement that EPD is "built to support s supervisors." IAlthough not mentioned in plainti 's briefs, this information was found the arbitrator's background and facts. Arbitrators Opinion & Award, Defendant's Exhibit 5 at 8. Page 13 - OPINION AND ORDER In addition, plaintiff points to statements made during Lt. Bills' investigatory interviews as evidence of retaliation. Lt. Bills bas her decision to transfer pI iff on pI iff's admissions, allegedly indicating an unwillingness and inability to strengthen his communication with Sgt. Eichhorn. Plaintiff argues the transcripts reveal a hesi all members of the K-9 team, inst to communicate by of just intiff's hesitancy. Although Lt. Bills allegedly relied upon plaintiff's admission that he spo to Sgt. Eichhorn as minimally as possible, plaintiff alleges the same sentiment was echoed throughout the other interviews of other K-9 team members. For example, ficer Rosa s, a K-9 team member, express when speaking with Sgt. Eichhorn, while Off discomfort r Hubbard, another K-9 team member, stated that the three K-9 officers were "walking on eggshells with Sgt. Eichhorn" and that would not feel comfortable speaking with Sgt. Eichhorn if he had a problem with his dog. Furthermore, pIa made by S iff directs the court to statements Eichhorn. When asked whether the trust and communi cat could return to the team members, Sgt. Eichhorn directly responded, "no." aintiff contends S . Eichhorn made additional statements indicating that he thought the K-9 officers were liars and untrustworthy. Moreover, intiff proceeding is not dispositive Page 14 - OPINION AND ORDER s that the prior ration Lt. Bills' motives, and that the issues addressed during the arbitration are not identical to the issues at bar. Plaintiff states that the question in the arbitration matter was whether management had a right to transfer plaintiff pursuant to the parties' contract and collective bargaining law. Defendants argue that whether the collective bargaining agreement between the City and plaintiff's union was violated required the arbitrator to determine whether plaintiff's transfer resulted from retaliation against plaintiff for speaking out concerning SWAT safety concerns. Thus, defendants argue the issue of retaliation was essential to the arbitrator's final decision. Plaintiff further argues that regardless of the arbitrator's decision, plaintiff did not have a full or fair opportunity to be heard during arbitration. Issue preclusion prevents a party from relitigating issues that were actually litigated and petermined in a prior action if the determination was essential to the final judgment. Nelson v. Emerald People's Util. Dist., 318 Or. 99, 103-04, 862 P.2d 1293, 1296-97 (1993). Plaintiff argues that several weeks prior to the arbitration, plaintiff requested the transcripts from Lt. Bills' investigatory interviews. The transcripts were not delivered, however, until several weeks after the hearing. Plaintiff argues that Lt. Bills based her transfer decision on admissions by plaintiff during an investigatory interview. By not providing the transcripts upon Page 15 - OPINION AND ORDER the City prevented the effective request, plaintiff asserts cross-examination of Lt. Bills when plaintiff's alleged testified regarding the interview. Thus, the ssions foundation of tra Viewing ision was incomplete. s light most favorable to the s plaintiff, the court finds it difficult at this time to resolve all rea doubts as to the material stence of genuine issues of st defendants. Defendants addressed only the final trans a reference to pI his K-9 team, without any i iff's ional complaints of retaliation. As a result, there are several remaining issues of material fact. As a matter law, t court is unable to determine whether plaintiff's protect was a substantial or motivating , factor in t rse Dyment actions. CONCLUSION De summary judgment motion (doc. 22) is denied. IT IS SO ORDERED. Oat this ~ day of February 2011. Ann Aiken United States strict 16 - OPINION AND ORDER
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