Greisen v. Hanken
| Decision Date | 28 December 2015 |
| Docket Number | Case No. 3:14-cv-01399-SI |
| Parties | DOUG GREISEN, an individual, Plaintiff, v. JON HANKEN, an individual; JOHN DOES 1-5; and the CITY OF SCAPPOOSE, an Oregon municipality, Defendants. |
| Court | U.S. District Court — District of Oregon |
John D. Ostrander and William A. Drew, ELLIOTT, OSTRANDER & PRESTON, P.C., 707 S.W. Washington Street, Suite 1500, Portland, OR 97205. Of Attorneys for Plaintiff.
Karen M. Vickers and Blake H. Fry, MERSEREAU SHANNON L.L.P., One S.W. Columbia Street, Suite 1600, Portland, OR 97258. Of Attorneys for Defendants.
Doug Greisen ("Griesen") brings this action against Jon Hanken ("Hanken"), the former City Manager for the City of Scappoose; John Does 1-5, individuals alleged to have acted in concert with Hanken, in their official and personal capacities (the "Doe Defendants"); and the City of Scappoose (the "City"), an Oregon municipality that is Greisen's former employer (collectively, "Defendants"). In response to Defendants' motion for summary judgment, Greisen withdrew his claims for whistleblowing retaliation and wrongful discharge. Greisen's remaining claims are: (1) First Amendment retaliation in violation of 42 U.S.C. § 1983, against Hanken; (2) intentional infliction of emotional distress, against all Defendants; (3) invasion of privacy by false light, against all Defendants; (4) unpaid wages, against the City; and (5) tortious interference with economic relations, against Hanken. Before the Court is Defendants' motion for summary judgment against all remaining claims. Dkt. 26. For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion for summary judgment.
A party is entitled to summary judgment if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment," the "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
For 13 years Greisen was the Chief of Police of Scappoose, Oregon. The City terminated his employment in May 2014 under a "no-cause" provision in his contract. Dkt. 31-2 at 2; Dkt. 27-4 at 6. Hanken was City Manager of Scappoose until his resignation on November 8,2013. Dkt. 31-3 at 32. In 2012, Greisen became concerned about Hanken's budget practices and began to voice concerns. Greisen alleges that Hanken retaliated against Greisen for doing so, resulting in three allegedly sham investigations into Greisen's conduct as Chief of Police, a newspaper article that damaged Greisen's public reputation, and, ultimately, Greisen's termination as Chief of Police.
As Chief of Police, Greisen's job duties included developing and managing the budget for the police department. Dkt. 27-1 at 4. In 2012, Greisen began raising questions about the City's budget and finances with Hanken. Dkt. 30, ¶ 1. In April of that year, Hanken "firmly instructed" Greisen that in the "best interests of [his] career," Greisen should support Hanken's budget. Id. Following those directions, on May 14, 2012, Greisen opposed City Councilor Judi Ingham's ("Ingham") request to hire additional police officers even though he "truly agreed" with her proposal. Id. Greisen alleges that Hanken perceived Greisen's opposition to Ingham's request as "weak" and became "enraged" and confronted and admonished Greisen. Id. In August 2012, Hanken again confronted Greisen and told Greisen that the best thing for his career was to not listen to Ingham, as "she is the one that will ruin [Greisen's] career here with the city." Id.
At about the same time, police department vendors contacted Greisen about past due bills. Id. at ¶ 2. Greisen asked the City's accounts payable clerk about the unpaid invoices. Id. ¶ 2. The clerk stated that Hanken and the City's Finance Director were holding invoices totaling more than $10,000 for the police department. Id. Greisen states that he was concerned, both "as a Police Chief and as a citizen," that Hanken was manipulating city accounts to hide inappropriate budget expenditures. Id. (emphasis in original). After Greisen asked the accounts payable clerk about the unpaid invoices, Hanken told Greisen that Greisen "should not question Mr. Hanken oranything about finances." Id. ¶ 3. Greisen later discovered that Hanken had held invoices for several months, waiting to pay them until the new fiscal year started. Dkt. 27-2 at 6.
Greisen raised these issues with a City finance officer, Jill Herr ("Herr"). Id. Herr told Greisen that "she only does what Jon [Hanken] tells her to do" and that Hanken directed her to hold invoices until the new fiscal year. Id. Greisen was troubled by this practice because it "was not only damaging to important, long-term vendor relationships, but was contrary to proper budgeting practices and procedures" as he understood them. Dkt. 30 ¶ 4. Greisen "escalated [his] inquiries with City employees other than Mr. Hanken," including the City Finance Director. Id. ¶ 4. Greisen began to question Hanken's role in the budget and expenditures for other departments, and talked with City councilors "both as a police chief and as a concerned citizen." Id. ¶ 5.
Greisen alleges that Hanken retaliated against him for these budget inquiries by initiating three investigations into Greisen's conduct as Chief of Police. The first investigation concerned Greisen's involvement in a February 4, 2013 high-speed car chase. During the car chase, Greisen authorized another officer to perform a "PIT" maneuver designed to cause the suspect vehicle to spin out. Dkt. 27-1 at 33-34. On March 4, 2013, one of Greisen's sergeants, Doug Carpenter ("Carpenter"), complained about the use of the PIT maneuver in a memorandum to Carpenter's superior, then-Lieutenant Norman Miller ("Miller"). Id. at 33-39. On May 30, 2013, Miller recommended to Hanken that the Oregon State Police conduct an internal investigation into the incident. Id. at 31.
On July 17, 2013, Hanken discussed Carpenter's complaint with the City Attorney. Dkt. 31-3 at 2. Hanken then hired the Local Government Personnel Institute ("LGPI") to investigate the complaint. Id. On August 12, 2013, LGPI submitted an investigative reportregarding the PIT maneuver that was unfavorable to Greisen. Dkt. 27-3 at 29-34. On August 23, 2013, Hanken wrote a letter to Greisen notifying Greisen of the results of the investigative report, stating: "As I draft this letter, I cannot help but wonder if you would be able to maintain your position if this report was known by or reported to the news media." Id. at 35-36. Hanken suspended Greisen for two weeks without pay. Id. at 36.
On August 26, 2013, Greisen appealed the disciplinary action to then-City Mayor Scott Burge ("Burge"). Id. at 37-42. Burge appointed a Personnel Review Committee ("PRC"), composed of City councilors and the City Attorney, to consider Greisen's appeal. Dkt. 31-3 at 26. On October 14, 2013, the PRC found that the degree of discipline was "entirely out of proportion based on the totality of the circumstances" surrounding the incident. Id. at 27. The PRC additionally found that the LGPI report was "an erroneous mischaracterization of the events" and that the report "purposely omitted pertinent and material facts." Id. at 29. The PRC concluded that the LGPI report was "null and void." Id.
In early September 2013, Greisen received a letter advising him that he would remain on paid administrative leave because of another complaint made by Carpenter. Dkt. 27-1 at 6. In this second complaint, Carpenter claimed that Greisen harassed him in retaliation for complaining about the PIT maneuver. Id. LGPI conducted an investigation into the harassment allegation against Greisen. Id. at 7.
Greisen was ultimately exonerated in the harassment investigation. Dkt. 31-2 at 8. Greisen states that the City "held on" to the harassment investigation report that cleared his name until June 2015, though the report was completed on November 13, 2013. Dkt. 30 ¶ 7.
In the fall of 2013, while Greisen was still on administrative leave, Miller discovered cash in a locked desk drawer in Greisen's office and brought it to Hanken. Id. at 10. Hanken called the Columbia County Sheriff to get advice on how to handle the situation and also talked to the Mayor and the Columbia County District Attorney. Id. at 32. The Columbia County District Attorney recommended that Hanken arrange for a forensic audit. Id. Hanken again hired LGPI to perform the investigation. Id. Hanken ordered Greisen not to discuss the matter publicly. Dkt. 31-2 at 20. On September 9, 2013, the City Attorney also ordered Greisen not to speak with the press or media. Dkt. 30 ¶ 8.
Greisen testified during his deposition that the cash came from police department bank accounts. In the 1980s, a former police chief established the bank accounts to hold donations and other...
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