Ewing v. City of Toledo

• Decision Date: 31 March 2021
• Docket Number: 6:18-cv-01626-MK
• Parties: WILLIAM EWING, Plaintiff, v. CITY OF TOLEDO; CRAIG MARTIN; in his individual capacity; BILLIE JO SMITH, in her individual capacity; and DAVID JAMES ROBINSON, in his individual capacity, Defendants.
• Court: U.S. District Court — District of Oregon

WILLIAM EWING, Plaintiff,
v.
CITY OF TOLEDO; CRAIG MARTIN; in his individual capacity; BILLIE JO SMITH, in her individual capacity; and DAVID JAMES ROBINSON, in his individual capacity, Defendants.

No. 6:18-cv-01626-MK

United States District Court, D. Oregon, Eugene Division

March 31, 2021

FINDINGS AND RECOMMENDATION

MUSTAFA T. KASUBHAI, UNITED STATES MAGISTRATE JUDGE.

Plaintiff William Ewing initially filed this civil rights and whistleblower lawsuit pursuant to federal and state law in late 2018. See Am. Compl., ECF No. 9 (“AC”). Defendants filed a motion to dismiss, which this Court ultimately recommended granting in part and denying in part in an amended findings and recommendation (“F&R”).^[1] See ECF Nos. 11, 47. The district judge adopted the F&R in its entirety and granted Plaintiff leave to submit a second amended complaint (“SAC”), which Plaintiff filed in May 2020. ECF Nos. 49, 51.^[2] Currently before the Court is Defendants' motion to dismiss the SAC. ECF No. 53. For the reasons that follow, Defendants' motion should be GRANTED IN PART and DENIED IN PART.

BACKGROUND

The City of Toledo (the “City”) hired Plaintiff in May 1999 to serve as Fire Chief, a role he served until his termination in June 2018. SAC at ¶¶ 9, 45. In August 2016, the City hired Defendant Craig Martin (“Martin”) as the Interim City Manager, eventually hiring Martin to the position on a permanent basis. Id. at ¶¶ 10, 14. Plaintiff's and Martin's relationship was contentious from the beginning. For example, Plaintiff was critical of Martin's management, specifically concerning Martin's budget allocation to various City projects. Id. at ¶ 15. Plaintiff shared his concerns to various individuals, including Defendant Mayor Billie Jo Smith (“Smith”) during a City Council meeting. Id. at ¶ 16.

In August 2017, Nancy Bryant (“Bryant”), a City employee, accused Martin of intimidation, harassment, and discrimination, which prompted an internal investigation. Id. at ¶¶ 18-19. During the investigation, another employee, Polly Chavarria (“Chavarria”) accused Martin of being dishonest with the City Council and asserted that Martin tried to change the public works director's salary without City Council approval. Id. at ¶¶ 20-21.

The investigation concluded in October 2017 with the release of a report, and shortly thereafter Martin terminated Bryant, who had initiated the inquiry. Id. at ¶¶ 22-23. At this time, Plaintiff discussed with Martin his decision to terminate Bryant. Id. at ¶ 23. Believing that Martin terminated Bryant for raising complaints about Martin's mismanagement and harassment, Plaintiff discussed his concerns about Bryant's firing with Smith. Id.

In late October 2017, Martin delivered Plaintiff a Notice of Potential Termination for unprofessionalism and disrespectful communication regarding Martin's job performance. Id. at ¶ 24. Plaintiff responded two days later to the Notice of Termination. Id. at ¶ 25. Martin suspended Plaintiff and Chavarria for a week without pay, and placed Plaintiff on a 120-day performance improvement plan. Id. at ¶ 26. In January 2018, Chavarria resigned from the City. Id. at ¶ 27.

Under the City charter, Martin served as the City's Budget Officer, which required him to prepare an annual proposed budget for submission to the City Council. Id. at ¶¶ 28-32. When the budget process began, Martin assigned Plaintiff additional budget development responsibility for the Fire Department. Id. at ¶ 33. Plaintiff was unfamiliar with these additional responsibilities and received no help or guidance from Martin. Id. at ¶ 34. As a result, Plaintiff relied on guidance from Chavarria, now the former City Finance Director, to help him with the budget process. Id. at ¶ 36-37. In March 2018, after Plaintiff submitted budget information for the fire department, Martin gave Plaintiff a revised budget that did not include fire department figures. Id. at ¶ 38. Plaintiff also questioned Martin about the revised budget, specifically that $400, 000 was now missing from the reserve fund. Id.

Plaintiff alleges that at this point he was “even more alarmed” about the budget process and suspected the budget contained more errors that he could not identify himself. Id. at ¶ 39. Plaintiff requested Chavarria's assistance in reviewing the budget to identify potential errors. Id. Plaintiff instigated the review “in order to make the budget process more transparent and expose the ineptitude and mismanagement of the process.” Id. at ¶ 40. “[F]or the sake of transparency” and “the interest of the taxpayers, ” Plaintiff and Chavarria agreed that the City Council should know about the budget deficiencies. Id. Chavarria wrote a memo describing “59 errors and areas of concerns about the proposed budget.” Id. In May 2018, Chavarria shared the memo with members of the City Council, who subsequently shared the concerns with Martin while making 293 corrections to the budget prior to approving it. Id. at ¶¶ 40-41.

When confronted by Martin on May 17, 2018, Plaintiff admitted that he had given Chavarria the City's financial information “because he felt the budget was totally messed up.” Id. at ¶ 42. Plaintiff asked Martin if he wanted to terminate him, which Martin responded saying “not yet.” Id. On June 4, 2018, Martin gave Plaintiff a Notice of Potential Termination that stated, “I want to be abundantly clear that I am not considering discipline because you state that you have concerns about the City's budget or in any way involved with the memo that went to the City Council.” Id. at ¶ 43.

On June 5, 2018, Plaintiff spoke to the Newport News Times, stating the City Manager's “budget [was] so messed up” and that his “only concern [was] for the taxpayers.” Id. at ¶ 44. On June 13, 2018, Martin terminated Plaintiff, which was approved, condoned, and ratified by Smith. Id. at ¶¶ 45-46. On June 14, 2018, Plaintiff spoke with Newport News Times again, stating that Martin was “out of touch” with the budget process; he admitted that he took the financial report from the City and revealed its content to a third-party; Plaintiff expressed that “[m]ore people need to be concerned about what's happening with the tax dollars in Toledo”; he claimed that Martin was more concerned about being shown to be wrong than the error; and concluded that his “termination [was] retaliation.” Id. at ¶ 47.

One week later, on June 20, 2018, Defendant David Robinson (“Robinson”), a City attorney, accused Plaintiff of illegally releasing “non-disclosable public records” and “tramp[ling] on the rights of other taxpayers in the process.” Id. at ¶ 49 (brackets in the original). Martin provided the false and/or misleading information to Robinson that led to Robinson's statements at the City Council meeting. Id. at ¶ 50. Two days later, on June 22, 2018, Robinson requested that the Oregon Department of Justice (“DOJ”) investigate Plaintiff for “criminal conduct perpetrated against the City.” Id. at ¶ 51. However, Robinson failed to cite any evidence corroborating the accusation. Id. at ¶¶ 53-56.

On the weekend of July 14-15, 2018, Smith handed out pamphlets regarding a potential election recall to the public at a City of Toledo festival. Id. at ¶ 57. The pamphlet accused Plaintiff of dishonest and/or immoral conduct. Id. Martin or Smith could have offered him an impartial name-clearing hearing after Robinson's statements at the City Council meeting, Robinson's accusations to the DOJ, and Smith's statement in the pamphlets, but did not. Id. at ¶¶ 58-59.

On October 8, 2018, Smith gave a radio interview which accused Plaintiff of “data theft.” Id. at ¶ 60. On November 28, 2018, Lincoln County District Attorney declined to file criminal charges against Plaintiff based on DOJ's conclusion that Plaintiff accessed information that would have been otherwise available through a public records request. Id. at ¶ 61.

STANDARD OF REVIEW

A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett- Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v....