Lakeside-Scott v. Multnomah County, 05-35896.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Fisher
• Citation: 556 F.3d 797
• Parties: Lea LAKESIDE-SCOTT, Plaintiff-Appellee, v. MULTNOMAH COUNTY, Defendant, and Jann Brown, Defendant-Appellant.
• Docket Number: No. 05-35896.,05-35896.
• Decision Date: 12 February 2009

556 F.3d 797 Lea LAKESIDE-SCOTT, Plaintiff-Appellee,
v.
MULTNOMAH COUNTY, Defendant, and
Jann Brown, Defendant-Appellant. No. 05-35896. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 9, 2007. Filed February 12, 2009.

[556 F.3d 799]

George P. Fisher, Portland, OR, for the plaintiff-appellee.

Jenny M. Morf (argued), Assistant County Attorney; Katie A. Lane, Assistant County Attorney, Portland, OR, for the defendant-appellant.

Appeal from the United States District Court for the District of Oregon, Michael W. Mosman, District Judge, Presiding. D.C. No. CV-02-01505-MWM.

Before: RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges and JUDITH M. BARZILAY, Judge.^*

Opinion by Judge FISHER; Concurrence by Judge BERZON.

FISHER, Circuit Judge:

This appeal involves an alleged retaliatory discharge of an employee after she complained about co-workers and one of her supervisors and presents a question that this circuit has not yet answered: Can a final decision maker's wholly independent, legitimate decision to terminate an employee insulate from liability a lower-level supervisor involved in the process who had a retaliatory motive to have the employee fired? We conclude that, on the record in this case, the answer must be yes, because the termination decision was not shown to be influenced by the subordinate's retaliatory motives.

The plaintiff-appellee, Lea Lakeside-Scott ("Scott"), was fired from her position as an information systems specialist at Multnomah County's Department of Community Justice ("DCJ"), ostensibly for her improper use of DCJ's computers and email system. Scott then brought this lawsuit alleging that her termination was actually in retaliation for her engaging in speech protected under the First Amendment and by Oregon's whistleblower protection statute. While she was employed at DCJ, Scott had complained about co-workers'

556 F.3d 800

violations of County policies, including by one of her supervisors — Jann Brown — whom she also accused of favoring gay and lesbian employees in hiring and promotion decisions. Brown played a role in the process that led to Scott's termination, although the ultimate decision was made independently by Joanne Fuller, director of DCJ's information systems department. Scott contends that Brown wanted to retaliate against Scott for her accusations against Brown, and thus unlawfully influenced Fuller's decision to fire Scott.

Scott filed her retaliatory discharge claim against the County and Brown in federal district court. After a trial, a jury found in Scott's favor, awarding her $650,000 in compensatory and punitive damages against Brown.¹ The district court denied Brown's motion for judgment as a matter of law ("JMOL"), and this appeal followed. We conclude there was insufficient evidence to support the verdict against Brown, given the evidence that it was Fuller's independent decision to terminate Scott. We therefore reverse the district court's denial of Brown's JMOL and remand for entry of judgment in her favor.

BACKGROUND²

Scott began her employment in DCJ's information services unit in August 1997. During the relevant time period, her direct supervisor was Monna Hogue. Hogue reported to Dan Gorton, who reported to Brown, who, in turn, reported to the department's director, Ms. Fuller.

Scott frequently complained to Gorton and Hogue about her perceived problems in the office. Her grievances included personality conflicts with other DCJ employees, promotions she did not receive and alleged misuse of the County computer system by co-workers and managers. In October 2001, Scott filed a formal complaint with the Oregon Bureau of Labor and Industries ("BOLI complaint") alleging, among other things, that Brown gave preferential treatment to gays and lesbians in hiring and promotions. Brown learned about the BOLI complaint shortly thereafter; she was shocked by its allegations of favoritism, which she took personally.

In November 2001, Fuller ordered Brown to search the email of an employee, David Landis, as part of an investigation of another DCJ employee who had allegedly sent racially discriminatory emails at work. Lacking the technical ability to do the search herself, Brown directed Tami Williams to do it. Williams sent the emails and attachments she recovered during her search to the human resources department. Attached to one of these emails was a journal, written by Scott and sent by her to Landis, that contained discriminatory comments and excerpts of other employees' work documents. It is unclear whether Williams knew about the journal when she sent the emails to human resources. After human resources personnel discovered the journal, either they or Fuller instructed Brown to look for additional material from Scott.³

556 F.3d 801

In the meantime, either someone in human resources or perhaps Williams informed Brown about Scott's journal having been found among Landis' email documents. When Brown read the journal, which included excerpts of personal emails and documents from co-workers and supervisors as well as several apparently derogatory remarks about homosexuals, she immediately showed it to Fuller. At an ensuing meeting attended by Fuller, Brown and a County counsel, Fuller decided to place Scott on administrative leave (standard practice during an employee investigation) and directed Brown to write a letter to Scott informing her of this decision. With the assistance of the human resources department, Brown prepared and signed a standardized letter advising Scott she was being placed on administrative leave. After consulting with the human resources department and Fuller about how to present the letter to Scott, Brown had Scott come to her office the next morning along with two other managers, Gorton and Rich Scott, in case there "was any trouble." After the meeting, Brown instructed the two managers to unplug Scott's computer, which they placed in Brown's office, where it was "made operational."

Once Scott was placed on administrative leave, Fuller directed John Turner, an investigator on her staff, to conduct an internal inquiry into Scott's possible violations of County work rules or policies. Brown was not involved in framing the charges to be investigated, outlining the direction of the investigation or providing a list of witnesses. Rather, Turner met with Collette Umbras, the human relations department manager, to outline which official work rules were implicated by Scott's supposed misconduct. The charges ultimately included misusing County property, conducting personal business on County time, inappropriately accessing the emails and documents of other employees and engaging in prohibited workplace harassment and prejudicial acts. Fuller sent Scott a letter to notify her of these charges as Turner began his investigation.

Over the course of his investigation, Turner interviewed 22 witnesses, including Brown and Scott. He also reviewed Scott's journal and several of her emails. Brown's role in the investigation was limited to answering Turner's questions; she did not provide him with any written materials. For her own part, Scott admitted to Turner that she had engaged in the conduct that had led to the charges against her, and she conceded that she was fully aware of the policies, procedures and rules governing the use of County property— particularly those prohibiting harassment and discrimination and accessing databases for personal or non-business related reasons. She said, however, that she did not know her behavior violated any of these rules and claimed that Hogue knew about and had authorized many of her actions.

At the conclusion of his investigation, Turner produced a report to Fuller detailing his findings and recommending that all of the charges against Scott be sustained. Fuller sent a letter to Scott describing the report's findings and, after meeting with Scott to provide her with an opportunity to explain her actions, decided to terminate her employment. Fuller testified that although Scott's journal was the reason she decided to initiate the investigation, she based her decision to fire Scott on all of the evidence that Turner procured during

556 F.3d 802

his investigation. As detailed in her termination letter to Scott, Fuller "removed" certain charges but nevertheless concluded that the remainder of the sustained charges-misusing County property, conducting personal business on County time, accessing other employees' emails and documents and engaging in workplace harassment and prejudicial acts-warranted Scott's termination. The magnitude of Scott's misconduct was on a scale that was completely different from what Fuller had seen in other employees and destroyed her ability to trust Scott to uphold DCJ's policies in the future. Throughout her trial testimony, Fuller reiterated that Brown played no role in her decision to fire Scott. Scott did not produce any evidence to the contrary.

Scott brought a retaliatory discharge lawsuit in federal district court against the County and Brown, alleging she was wrongfully terminated because she had filed the BOLI complaint and openly criticized both DCJ and Brown, and claiming these were protected activities under the First Amendment and 42 U.S.C. § 1983 as well as under Oregon's Whistle-blower Act. After Brown moved unsuccessfully for summary judgment, a jury found in Scott's favor and awarded her economic damages of $140,000, noneconomic damages of $10,000 and punitive damages of $500,000. The district court denied Brown's motion for JMOL and this timely appeal followed.⁴

STANDARD OF REVIEW

"We review the denial of a motion for a judgment as a matter of law de novo." Ostad v. Oregon Health Sci. Univ., 327 F.3d 876, 881 (9th Cir.2003). We view the evidence in the light most favorable to the party in whose favor the jury returned a verdict and draw all reasonable inferences in her favor. See id.; Gilbrook v. City of...