Hutton v. Jackson County
| Decision Date | 23 November 2010 |
| Docket Number | Case Number 09-3090-CL |
| Court | U.S. District Court — District of Oregon |
| Parties | RANDY HUTTON, Plaintiff, v. JACKSON COUNTY, a Political Subdivsion of the State of Oregon, and JOHN VIAL, Defendants. |
AMENDED ORDER
Plaintiff originally filed this action against defendant Jackson County ("the County") on January 9, 2009, in Jackson County Circuit Court for the state of Oregon, Randv Hutton v. Jackson County, Civil Case No. 09-0419-L3, alleging claims of wrongful discharge, age discrimination, and whistleblowing (ORS 659A.203). On or about October 14, 2009, plaintiff filed an amended complaint, adding defendant John Vial ("Vial") as an individual defendant, and alleging a 42 U.S.C. § 1983 claim for violation of his First and Fifth Amendment rights, and supplemental state claims for whistleblowing (ORS 659A.203), wrongful discharge, and breach of contract. Plaintiff seeks economic damages, non-economic damages, and attorney's fees and costs. Defendant timely filed a Notice of Removal to this court on October 15, 2009. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. The parties have executed written consents to entry of judgment by a magistrate judge (#10). Before the court is defendants' motion for summary judgment (#16). For the reasons set forth below, defendants' motion is granted in its entirety.
Construing the facts in the light most favorable to the non-movant, the record reveals the following: 1
In 1976, Plaintiff was hired to fill a non-union supervisory position with the County's Parks and Recreation Department. The County did not have a written at-will policy at that time. In the absence of any clear policy to the contrary, Neil Ledward, Director of Parks and Recreation from 1961 to 1991, and plaintiff's supervisor Larry Lloyd, Superintendent of Parks from 1973 to 1993, believed that employees could only be terminated for cause. It is possible that one or both of them told plaintiff he could only be terminated for cause when he was hired. Throughout the duration of his employment, plaintiff subjectively believed he could only be terminated for cause.
On December 7, 2000, the County promulgated Policy #5-42, which pronounced that, in accordance with state law, all employees of the County were at-will employees, regardless of an employee's probationary or regular status. On January 4, 2001, the County's Human Resources Department issued an inter-office memo addressing, in part, Policy #5-42, noting that it was signed by "the Board" and adopted the previous month, and requiring that all current management employees submit a signed copy by January 31, 2001. Plaintiff signed the policy, recording his protest on the document below his signature.
In 2003, plaintiff was promoted to Parks Program Manager. In that position, plaintiff reported directly to Paul Korbulic, Director of the County's Roads and Parks Department, and Gerry Douglas, the Deputy Director. In February 2007, J. Domis succeeded Douglas as Deputy Director. On July 1, 2007, budget shortfalls caused the County to discontinue plaintiff's "take home" vehicle privileges, which he had enjoyed since 1976, and restricted the use of County vehicles to daytime use for official business only. On November 26, 2007, Domis issued plaintiff a written reprimand for using a County vehicle to drive home for lunch, and cautioned that as a manager he was expected to set an example for the public and his co-workers.
On March 3, 2008, defendant Vial succeeded Korbulic as Director. Vial conducted training and held management team meetings, which plaintiff attended, four times between April 22 and May 29 of 2008, during which the proper use of County vehicles was addressed. Plaintiff challenged the policy and expressed his disagreement with it during these meetings. On July 2, 2008, Vial issued plaintiff a written reprimand for violating Policy # 8-02, which prohibits county employees from making or receiving calls while driving, after plaintiff received a citation for running a red light and talking on his cell phone while driving a County vehicle.
As Parks Program Manager, plaintiff was responsible for the County's entire parks program, including the Cantrall-Buckley Park ("C-B Park"). Pursuant to a 2004 operating agreement, C-B Park was managed by the Greater Applegate Community Development Corporation ("GACDC"), a non-profit corporation. In early 2007, at GACDC's request, the County applied for and received two Oregon State Parks grants totaling $253,225 for improvements to C-B Park. In August 2007, the County and GACDC entered into an agreement calling for GACDC to raise $203,225 and for the County to contribute an additional $50,000 to cover the total costs of the projects, and setting a completion date of December 31, 2008. Over time, plaintiff's relationship with GACDC and its officers became tense, due at least in part to his increasing concerns with the manner in which GACDC was managing the grant funds and perception that GACDC was violating multiple terms of the 2004 operating agreement. Plaintiff, Vial, and Domis discussed these concerns in several meetings during the spring and summer of 2008. On June 3, 2008, Domis and Vial requested that County Auditor's Office conduct an audit of the C-B Park grant projects. Plaintiff was not informed of the request.
In mid-November 2008 Tanya Baize ("Baize"), an auditor with the Auditor's Office, phoned plaintiff and requested background information regarding the C-B Park projects. On November 19, 2008, plaintiff sent Baize a 3 page memorandum describing the problems he perceived regarding GACDC's management of the state grant funds and C-B Park generally, and attached eight supporting documents. On November 24, 2008, Vial confronted plaintiff about the memorandum, which plaintiff had submitted to Baize without informing Vial. Vial told plaintiff he was "going to have to make some changes" if he did not see improvements in plaintiff's performance.
On December 4, 2008, Vial and Domis met with plaintiff to discuss a written complaint from GACDC dated November 25, 2008, accusing plaintiff of removing firewood from C-B Park without payment or permission. Plaintiff admitted that he removed wood from the park, which he believed was permissible, but also admitted he exercised poor judgment in doing so considering the contentious nature of his relationship with GACDC. During this meeting, Vial and Domis also learned that earlier that day, plaintiff had stopped for a personal doctor's appointment while driving a County vehicle to Emigrant Lake to meet with another County employee. Plaintiff felt this conduct was permissible since the personal stop was incidental to the job-related trip. Domis and Vial, however, viewed these two incidents as part of a larger pattern of insubordination and misconduct. Accordingly, plaintiff's employment was terminated on December 10, 2008.
Pursuant to Rule 56(c), summary judgment "should be rendered, if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Freeman v. Oakland Unified Sch. Dist. 291 F.3d 632, 636 (9th Cir. 2002). The court cannot weigh the evidence or determine the truth but may only determine whether there is a genuine issue of fact. Playboy Enters.. Inc. v. Welles. 279 F.3d 796, 800 (9th Cir. 2002). An issue of fact is genuine '"if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Villiarimo v. Aloha Island Air. Inc.. 281 F.3d 1054, 1061 (9th Cir. 2002) ).
The moving party must carry the initial burden of proof. Celotex Corp. v. Catrett. 477 U.S. 317, 322-24 (1986). The moving party meets this burden by identifying for the court portions of the record on file which demonstrate the absence of any genuine issue of material fact, Id.; Devereaux v. Abbey. 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the non-moving party. Allen v. City of Los Angeles. 66 F.3d 1052, 1056 (9th Cir. 1995). All reasonable inferences are drawn in favor of the non-movant. Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1180 (9th Cir. 2002).
If the moving party meets its burden with a properly supported motion, the burden then shifts to the opposing party to present specific facts which show there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2); Auvil v. CBS "60 Minutes". 67 F.3d 816, 819 (9th Cir. 1995); see Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 250 & n.4 (1986). Summary judgment should be granted for the movant, if appropriate, in the absence of any significant probative evidence tending to support the opposing party's theory of the case. Fed. R. Civ. P. 56(e); THI-Hawaii, Inc. v. First Commerce Fin. Corp.. 627 F.2d 991, 993-94 (9th Cir. 1980); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968). Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List. 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts which show there is a genuine issue for trial. Devereaux. 263 F.3d at 1076.
Because plaintiff's claims are all interrelated and hinge principally on the determination of whether plaintiff's November 2008 memorandum constitutes protected activity, the court begins its analysis with plaintiff's § 1983 claim.
Plaintiff alleges a claim under § 1983 on two constitutional bases: for violation of his First Amendment rights of free speech, and for violation of his due...
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