RAMSEY v. CITY OF PHILOMATH

ANN AIKEN, District Judge

Plaintiff Kristin Ramsey brings this action against defendant City of Philomath ("City") and individual defendants Randy Kugler, and Kenneth Elwer, asserting civil rights violations under 42 U.S.C. § 1983, and state law claims of unlawful retaliation under Or. Rev. Stat. §§ 659A.203(1)(b)(A) and 659A.230. Defendants move for summary judgment against plaintiff on all claims. The motion is granted.

FACTS

Plaintiff was initially hired by the Philomath Police Department ("Department") as a part-time police clerk in March 1996. She began working full-time in July 1996, at which time she assumed additional duties as an evidence technician. On May 31, 1998, Russell Hunt became Chief of Police. Chief Hunt died in a motorcycle accident on May 26, 2001, and Kenneth Elwer succeeded him in October 2001. At all times relevant to plaintiff's claims, Randy Kugler was City Manager of Philomath.

In November or December 2000, plaintiff's senior co-clerk, Carol Wigle, found personal garbage in the Department receptacle. Wigle reported this to plaintiff, who investigated and found personal garbage belonging to Chief Hunt, in violation of Department policy. Plaintiff reported her discovery once to her supervisor, Sergeant Sytsma, and twice to City Councilor Toni Hoyman.

In April 2001, plaintiff reported to the Benton County District Attorney's office and to Councilor Hoyman that Chief Hunt removed three bicycles from the Department garage. Plaintiff did not report either of these incidents to the City Manager Randy Kugler or to Chief Elwer when he replaced Chief Hunt in November 2001.

Beginning in October 2000, Kugler began preparations to move Municipal Court from the Police Department building to City Hall. Prior to the move, plaintiff and Wigle spent part of their days performing Municipal Court clerk duties. Upon moving court operations to City Hall, Wigle declined the invitation to split her time between the Police Department and City Hall. Plaintiff volunteered to assume the part-time court clerk duties at Municipal Court, and began doing so in June 2001.

A few months later, Kugler and the City's finance director, Joan Swanson, determined that efficiency dictated consolidation of the Municipal Court clerk duties with an existing utility clerk position, already stationed at City Hall. The new position would provide assistance to court patrons 40 hours per week. The existing utility clerk, Ruth Post, filled the new position beginning September 7, 2001. Wigle retained a full time schedule, while plaintiff's time was reduced to 16 hours per week due to the fact that she no longer performed court clerk duties. Plaintiff complained to her union representative about her reduction in hours, and she was reinstated temporarily to 24 hours per week until Chief Elwer could assess the Department's needs.

Upon Chief Elwer's assumption of duties in November 2001, he learned that both plaintiff and Wigle were receiving incentive pay for course-work related to a job requirement. Chief Elwer reduced the incentive pay for both plaintiff and Wigle, because City policy did not allow incentive pay for courses related to job requirements. Plaintiff did not complain to the union about this pay reduction.

In March of 2002, upon reviewing Department staffing needs, Chief Elwer determined that the hours of the part-time police clerk position should be reduced from 24 to 16 hours, or to eight hours if the Corvallis police department agreed to assume responsibility for Philomath's evidence. Corvallis did not agree to do so, however, and plaintiff's hours were reduced from 24 to 16 per week. Plaintiff did not complain to her union representative regarding this reduction in hours.

In June or July of 2002, Ruth Post moved to the City Recorder position, leaving open the utility clerk position at City Hall. Plaintiff and four other individuals applied and interviewed for the utility clerk job. The City hired Jenny Muir.

On April 24, 2003, and effective as of May 22, 2003, plaintiff's position was eliminated by the City through budget cuts approved by the City Council.

Plaintiff filed suit in state court in May 2003, and defendants removed the action to United States District Court. Plaintiff contends that in eliminating her position, defendants deprived her of constitutionally protected property and liberty interests without due process of law. Plaintiff further contends that defendants' actions violated state law prohibiting retaliation against employees for "whistleblowing."

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 is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The materiality of a fact is determined by the substantive law on the issue. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). The authenticity of a dispute is determined by whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. 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 to evaluating summary judgment motions: (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. Electrical, 809 F.2d at 630.

DISCUSSION

A. Section 1983 Claim

In her first claim for relief, plaintiff alleges that defendants violated her civil rights by failing to follow disciplinary procedures and by terminating her employment, all without due process required under the Fourteenth Amendment of the United States Constitution.

The Fourteenth Amendment protects against the deprivation of liberty or property without due process. Carey v. Piphus, 435 U.S. 247, 259 (1978). A procedural due process claim has two elements: 1) a deprivation of a constitutionally protected property or liberty interest, and 2) a denial of adequate procedural safeguards. Brewster v. Board of Eduction of Lynwood U. School Dist., 149 F.3d 971, 982 (9th Cir. 1998). Termination of an individual from a job may implicate two distinct interests: a property interest, and a liberty interest. 1. Property Interest

Plaintiff argues that defendants deprived her of a property interest in her job with the City without due process. To succeed on such a due process claim, plaintiff must first demonstrate that she possessed a property interest that requires constitutional protection. Board of Regents v. Roth, 408 U.S. 564, 571 (1972). Here, plaintiff maintains a property interest in continued employment only if she possesses a reasonable expectation or "a legitimate claim of entitlement." Id. at 577. Property interests are created and defined by existing rules or understandings stemming from an independent source, like state law. Id. Thus, it is state law that defines what is and is not property, and, therefore, what is subject to the protections afforded by the Fourteenth Amendment. Brady v. Gebbieu, 859 F.2d 1543, 1548 (9th Cir. 1988). Plaintiff can only have a property interest in her job as a police clerk if Oregon law created that right.

Police Department employees in Philomath who work more than 20 hours per week are subject to a collective bargaining agreement, pursuant to Or. Rev. Stat. §§ 243.650-.782. Included in the City's collective bargaining agreement are employee grievance and disciplinary provisions which govern all proceedings involving or against covered employees. Article 11 of the collective bargaining agreement states that "[e]mployees shall only be disciplined for just cause." Agreement at 10 (attached as Exhibit N to Affidavit of Amy L. Buckler). Thus, police employees who work more than 20 hours per week are entitled to some degree of job security, in that they can only be discharged for certain causes.Papadopoulos v. Oregon State Board of Higher Ed., 14 Or. App. 130, 511 P.2d 854 (1973).

Under Oregon law, employees who can only be discharged for cause have a property interest in continued employment. Brady, 859 F.2d at 1548, (citing Papadopoulos, 14 Or.App. at 157-58, 511 P.2d at 867). Stated differently, "[p]ublic employment, coupled with job protection, is an entitlement within the meaning of the Fourteenth Amendment." Simpson v. Western Graphics Corp., 53 Or. App. 205, 210, 631 P.2d 805, 808 (1981).

Throughout plaintiff's employment with the City, plaintiff was never disciplined, suspended with or without pay, or demoted by any supervisor, including by Police Chief Elwer. Other than asking plaintiff to follow proper procedures when complaining about employee conduct, plaintiff was never given any written or verbal warnings about her performance. Further, plaintiff was consistently evaluated as "acceptable" or "commendable." Plaintiff received salary increases throughout her employment.

Plaintiff alleges that her position with the City Police Department created a property interest, of which she was deprived without due process upon her termination effective on May 22, 2003. However, as plaintiff concedes, at the time she was terminated, plaintiff's hours had been reduced to 16 hours per week. She was, therefore, no longer subject to the collective bargaining agreement and the "for cause" termination requirement included therein. Agreement at 10. Therefore, even though plaintiff was publicly employed, she enjoyed no job protection.

Under Oregon law, an employer may discharge an employee at any time for any reason, absent a statutory or contractual right to the contrary. Sheets v. Knight, 308 Or. 220, 230, 779 P.2d 1000, 1006 (1989). Likewise, under the federal constitution, at-will employees possess no protected property rights in continued employment. Portman v. County of Santa Clara, 994 F.2d 898 (9th Cir. 1993). At the time of her termination plaintiff had no interest in continued employment with the City, and she had no property interest in her job. Plaintiff nevertheless asserts that the City Manager's subjective belief that she could only be terminated for cause created a property interest in continued employment. However, subjective beliefs are not sufficient to create a "legitimate claim of entitlement."Roth, 408 U.S. at 577. As expressed above, only independent sources such as state law are capable of creating property interests. Id. Plaintiff's argument on this point, therefore, is meritless. Her termination did not constitute a deprivation of a constitutionally protected interest. Because there is no genuine issue of material fact on this issue, summary judgment for defendants is proper. 2. Liberty Interest

Plaintiff next argues that defendants deprived her of a liberty interest without the protections afforded by due process in two ways. First, plaintiff alleges that the City disseminated a charge of incompetence as a reason for failing to hire plaintiff for the utility clerk position. Second, plaintiff alleged that the City damaged her professional integrity through disseminating plaintiff's accusations of theft against Chief Hunt.

The Ninth Circuit has defined a liberty interest as "an individual's freedom to work and earn a living." Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093, 1100 (9th Cir. 1981). Individuals are entitled to due process when a government dismisses an employee for reasons that might seriously damage his or her community standing or associations. Roth, 408 U.S. at 573. "Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing , notice and an opportunity to be heard are essential." Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).

However, damage to reputation alone is not enough to succeed on a due process claim. Wenger v. Monroe, 282 F.3d 1068, 1074 (9th Cir. 2002). Instead, to succeed on a claim that plaintiff was denied protection of her liberty interest she must demonstrate the following elements of "stigma plus": 1) the accuracy of the charge is contested, 2) some public disclosure of the charge has occurred, and 3) the charge is made in connection with termination of employment. Matthews v. Harney County, Or. School Dist. No. 4, 819 F.2d 889, 891 (9th Cir. 1987); see also Paul v. Davis, 424 U.S. 693 (1976). Here, there is no evidence from which a reasonable factfinder could infer the above elements regarding plaintiff's termination.

Plaintiff first asserts that when Ruth Post, the utility clerk, was replaced in June or July 2002, the City hired a young, part-time employee with less experience than plaintiff, though plaintiff had interviewed for the job. Plaintiff alleges that the City made its hiring decision based on plaintiff's difficulties with computer work, evidence plaintiff alleges is contradicted directly by her co-clerk, Wigle, who in a deposition stated that plaintiff has computer expertise. Plaintiff alleges that the City's failure to hire her into the utility clerk position thus resulted in a dissemination of a charge of incompetence. I disagree.

Even if the charge of incompetence were true and was disseminated, which I need not decide here, the Ninth Circuit has distinguished "a stigma of moral turpitude" from "incompetence," finding that the former gives rise to a liberty interest, while the latter does not. Roley v. Pierce County Fire Protection District No. 4, 869 F.2d 491, 495 (9th Cir. 1989). Moreover, plaintiff's claim fails to satisfy the third element underMatthews: the alleged "charge of incompetence" was not related to plaintiff's termination from the police department. The City filled the utility clerk position in June or July 2002, and plaintiff's position was eliminated effective May 22, 2003. Thus, plaintiff is unable to demonstrate that she was deprived of a liberty interest through the City's actions in hiring a replacement utility clerk.

Second, plaintiff alleges that she was deprived of a liberty interest when the City compromised her professional integrity by disseminating her allegations that Chief Hunt had engaged in misdeeds. However, plaintiff is unable to meet her burden on any of the necessary Matthew elements. First, plaintiff presents no evidence that her allegations that the Police Chief engaged in theft are contested; indeed, plaintiff herself testified that she reported the alleged violations to her supervisor, a city councilor, and to the District Attorney's office. Next, plaintiff provides no evidence to show that the City affirmatively made public the charges allegedly levied against Chief Hunt by plaintiff. "Without a disclosure that is public, there is no violation of due process. . . ." Llamas v. Butte Community College Dist., 238 F.3d 1123, 1129 (9th Cir. 2001).

Finally, plaintiff has presented no evidence that the alleged dissemination of her reports against Chief Hunt coincides with her termination. Plaintiff complained of Chief Hunt's behavior in November 2000 and April 2001, and she was not terminated until May 22, 2003. Defendants, on the other hands, present evidence that plaintiff's termination was the result of budget cuts approved by the City Council rather than retaliation for her actions. Plaintiff fails to present any evidence which, when viewed by a reasonable factfinder, would contradict defendants' evidence. Thus, plaintiff's due process claim fails as a matter of law.

B. State Law Whistleblowing Claim

Plaintiff's final claim alleges that defendants violated the Oregon whistleblowing statute. Or. Rev. Stat. § 659A.200. et seq. Plaintiff alleges violations of two statutes. The first, Or. Rev. Stat. § 659A.203(1)(b)(A), makes it unlawful for a public employer to "take or threaten to take disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of" a violation of any state or federal law or regulation. Or. Rev. Stat. § 659A.203(1)(b)(A). The second, Or. Rev. Stat. § 659A.230, makes it unlawful for an employer to retaliate against an employee "for the reason that" the employee has initiated or participated in civil or criminal proceedings. Or. Rev. Stat. § 659A.230.

Plaintiff requests a remand of the state law issue in the event that this court dismisses plaintiff's federal claims, even though this court has jurisdiction over plaintiff's state law claim pursuant to 28 U.S.C. § 1367. In determining whether to remand plaintiff's claims to the state court, the Ninth Circuit has encouraged this court to consider judicial economy, convenience, fairness, and comity. Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9^th Cir. 1997). I find that those goals are best served by resolving the state law claim in this case.

Here, plaintiff alleges that her reports regarding Chief Hunt's violation of state law, and her initiation of and participation in a criminal investigation against Chief Hunt motivated defendants to unlawfully retaliate against her by reducing her hours and terminating her job.

In its motion and supporting memorandum, defendants address several other allegations in plaintiff's complaint. However, plaintiff did not respond to defendants' arguments on these grounds, and the court limits its discussion to the arguments raised by plaintiff.

In order to prove her claim, plaintiff must show that she engaged in protected conduct, that she was subject to "disciplinary action," and that a causal relationship exists between the two. Or. Rev. Stat. § 659A.20(1)(b)(A). Here, there is sufficient evidence to show that plaintiff engaged in protected conduct. She became aware in late fall 2000 that Chief Hunt was using the Department's garbage receptacle for his personal use. She reported this conduct to her supervisor and to a city councilor. Additionally, plaintiff suspected Chief Hunt of unlawfully taking possession of bicycles in April 2001, and reported her suspicion a city councilor and to the district attorney's office shortly thereafter.

Next, plaintiff meets the second element by presenting evidence that she suffered a reduction of hours and was, ultimately, terminated from her position. Again, these employment actions arguably fall within the statutory definition of "disciplinary action." Or. Rev. Stat. § 659A.200(1).

As to the third step, the statutes require that there exist a causal relationship between the alleged protected conduct and the disciplinary action. Here is where plaintiff's claim fails. In an analogous case, the Oregon Supreme Court held that defendant's unlawful motive must be a "substantial and impermissible factor" in effecting the disciplinary action. McPhail v. Milwaukee Lumber Co., 165 Or. App. 596, 603, 999 P.2d 1144 (2000). Plaintiff presents no evidence that the individual defendants named in her suit, City Manager Kugler and Chief Elwer, were aware of her reports regarding Chief Hunt. Even if Kugler knew about the reports, he began the process of moving Municipal Court to City Hall, which resulted in plaintiff's reduction of hours, prior to her initiating the reports. Further, Chief Hunt died in May 2001, and the criminal investigation against him ceased at that time. Plaintiff's position with the City was not terminated until May 22, 2003, nearly two years after the investigation had stopped, and three years after the initial reports were made. Finally, plaintiff provides no evidence to create a triable issue of fact as to defendant's explanation that plaintiff's position was cut as part of a budget revision approved by the City Council. In sum, plaintiff fails to fulfill the third element of the whistleblowing statute. Because plaintiff fails to present evidence by which a reasonable trier of fact could find that plaintiff's protected conduct caused her employer to retaliate against her, I find that plaintiff's claim fails as a matter of law.

CONCLUSION

For the foregoing reasons, defendants' motion for summary judgment is GRANTED on all claims for relief. Plaintiff's Complaint is HEREBY DISMISSED. IT IS SO ORDERED.