Keenan v. Allan, 95-35577

Decision Date01 August 1996
Docket NumberNo. 95-35577,95-35577
Citation91 F.3d 1275
Parties96 Cal. Daily Op. Serv. 5677, 96 Daily Journal D.A.R. 9329 Shirley D. KEENAN; Daniel E. Keenan, Plaintiffs-Appellants, v. Wallace E. ALLAN; Janis M. Whitener-Moberg; County of Grant, by and through the Grant County District Court of the Grant County Board of Commissioners; Helen Fancher, Leroy Allison, and Tim Snead, personally and in their representative capacities as members of the Grant County Board of County Commissioners, Defendants-Appellees, Washington Commission on Judicial Conduct, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Robert A. Dunn, McCormick, Dunn & Black, Spokane, Washington, for plaintiffs-appellants.

John Francis Kennedy and Ellen R. Donovan, Law Offices of John Francis Kennedy, Tacoma, Washington, for defendant-appellee Allan.

Daniel W. Ferm and Sheryl J. Willert, Williams, Kastner & Gibbs, Seattle, Washington, for defendant-appellee Whitener-Moberg.

Daniel E. Huntington, Richter-Wimberley, Spokane, Washington, for defendants-appellees Grant County, Fancher, Allison and Snead.

Peter D. Byrnes and Paul R. Taylor, Byrnes and Keller, Seattle, Washington, for defendant-appellee Washington Commission on Judicial Conduct.

Appeal from the United States District Court for the Eastern District of Washington, Alan A. McDonald, District Judge, Presiding. D.C. No. CV-94-00070-AAM.

Before: BROWNING and T.G. NELSON, Circuit Judges, and SMITH, * District Judge.

T.G. NELSON, Circuit Judge:

Shirley and Daniel Keenan ("the Keenans"), a married couple, appeal the district court's summary judgment in favor of former Grant County District Court Judge Wallace E. Allan ("Allan"); Grant County District Court Judge Janis M. Whitener-Moberg ("Whitener-Moberg"); Grant County ("the County"); Helen Fancher, Leroy Allison, and Tim Snead, personally and in their capacities as members of the Grant County Board of Commissioners ("the Commissioners"), in the Keenans' action relating to Shirley Keenan's ("Keenan's") discharge from her position as Grant County District Court Administrator. The complaint named nineteen causes of action, both state and federal. The district court published a sixty-page opinion dismissing all of Keenan's claims. See Keenan v. Allan, 889 F.Supp. 1320, 1339-51 (E.D.Wash.1995).

Pursuant to our jurisdiction under 28 U.S.C. § 1291, we affirm the district court's opinion subject to the qualifications discussed below.

FACTS AND PROCEDURAL HISTORY

This is a case arising out of a very unpleasant work situation; the unpleasantness is compounded by plaintiffs' aggressive legal tactics, the parties' lengthy briefs, and a voluminous and poorly organized record. While the Keenans argue many irrelevant details, the material facts are not disputed.

Shirley Keenan was hired in 1989 by then-judges Carl Warring and Wallace Allan to serve as District Court Administrator for Grant County District Court in the State of Washington. District judges are elected for four-year terms. Allan served as judge from 1983 to 1994, when he resigned pursuant to a stipulation with the Washington Commission on Judicial Conduct ("the CJC") after a judicial misconduct investigation. See Keenan, 889 F.Supp. at 1350. Defendant Judge Janis Whitener-Moberg replaced Judge Warring and joined Allan on the bench in January 1991.

Keenan started her job as administrator in January 1990. Keenan's responsibilities included managing the daily operations of the court and supervising district court employees. She also appears to have worked on Allan's 1990 re-election campaign. In 1991, a number of events transpired to disrupt Keenan's working relationship with the judges. See id. at 1339-51 for a detailed description of these events. In June 1991, Allan told Keenan that he and Whitener-Moberg were disappointed in Keenan's performance, citing her inability to handle the new computer system and to get along with staff. Id. at 1340. Allan also began sending Keenan notes of reprimand, and on several occasions lost his temper with her, threw papers at her, and called her names: "stupid," "idiot," "bimbo." (CR 192, Ex. 228, in ER Vol. III.) 1

In September 1991, following complaints and resignations by a number of clerks working under Keenan, the judges relieved Keenan of her personnel duties and directed her to attend a personnel management course. On her return, Keenan sought advice from Whitener-Moberg and Anthony Menke ("Menke"), attorney for Grant County elected officials (including judges), concerning her problems with Allan. According to Keenan, Whitener-Moberg and Menke advised her to file a formal complaint with the CJC, and assured her that her complaint would be kept confidential and that she need not fear reprisal from Allan. Menke denies having discussed the matter at all with Keenan.

In December 1991, Keenan filed a complaint against Allan with the CJC. In January 1992, Keenan provided the Commission with several documents, including her own 41-page handwritten journal. She states she also gave Menke copies of these documents. In January 1992, Keenan took a medical leave of absence. Shortly after she returned to work, Keenan received a letter from the judges dated March 3, 1992, informing her that her position was being eliminated effective April 30, 1992. The judges stated that they found the court had run well in her absence and that the new computer system and other administrative changes called for restructuring. The judges offered Keenan a lower-paying clerk's position with the court, which she accepted with the proviso that she was " 'not waiving any rights or remedies that I have for violation of my Employment Agreement.' " See Keenan, 889 F.Supp. at 1344.

Keenan states in her opening brief that CJC investigator Sally Carter-Dubois ("Carter-Dubois") told her during her leave of absence that Allan had learned of her complaint. She cites to CR 33, a document which does not (at first glance) appear to be included in her five-volume ER. The docket sheet informs us, however, that the document cited is Keenan's own affidavit, filed September 6, 1994, which appears in the ER at CR 192. The statements cited from the affidavit do not support the statement in Keenan's brief. 2

While serving in the clerk position, Keenan became the union shop steward and filed numerous grievances on behalf of herself and others. Meanwhile, the judges received numerous reports concerning Keenan's misconduct, for which they sanctioned her with a ten-day suspension. On several occasions in 1993, the judges received letters signed by a number of court employees complaining about Keenan's hostile behavior, poor work habits, and "unspeakable" rudeness to co-workers and the public, and demanding that something be done to remedy the situation.

On June 30, 1993, Commissioners Fancher and Snead, responding to complaints by "the majority of [district court] employees," wrote to the judges asking them to address the problem with Keenan. See Keenan, 889 F.Supp. at 1347. Several days later, Keenan had an altercation with a co-worker, who complained to the local police department that Keenan had assaulted her. On July 6, 1993, the judges wrote to Keenan, once more suspending her for ten days without pay. On July 15, 1993, Whitener-Moberg wrote to Keenan directing her to attend a pre-discharge meeting on July 21, 1993. On August 20, 1993, following a hearing on August 11, 1993, Whitener-Moberg wrote Keenan informing her that she was terminated from district court employment.

The Keenans filed the instant lawsuit on March 4, 1994, claiming, inter alia, breach of contract, retaliatory discharge and sexual harassment, civil rights conspiracy, defamation, emotional distress, violations of the Fair Labor Standards and Consumer Protection Acts, and infringement of Keenan's rights to free speech and due process. 3

The district court dismissed all of the Keenans' claims with prejudice in its published opinion of May 12, 1995. The Keenans timely appeal. 4

DISCUSSION

A grant of summary judgment is reviewed de novo. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996); Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). The appellate court's review is governed by the same standard used by the trial court under Fed.R.Civ.P. 56(c). Jesinger, 24 F.3d at 1130. A grant of summary judgment should be affirmed only if the evidence, read in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Taylor v. List, 880 F.2d 1040, 1044 (9th Cir.1989); Fed.R.Civ.P. 56(c). Summary judgment may be affirmed on any ground supported by the record. Rhoden v. United States, 55 F.3d 428, 431 n. 3 (9th Cir.1995). "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e).

We observe as a preliminary matter that the Keenans' counsel has provided us with an excerpt of record ("ER") that is extraordinarily difficult to use. Most of the pertinent documents are included in "CR 192," which takes up most of three volumes of the ER. The ER is not paginated, nor is it organized according to date or any other discernible system. An attorney who submits a virtually impenetrable ER does no service to his or her client. The difficulty with the ER in this case is compounded by appellant's briefs, which habitually list multiple citations in lieu of simply stating the material facts disputed on appeal. Where this court has succeeded in locating the documents cited, it has repeatedly found that Keenan has referred us to conclusory allegations made in her own affidavits...

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