Merrill v. Lane Fire Auth.
| Decision Date | 19 July 2022 |
| Docket Number | 6:20-cv-00984-MK |
| Parties | LARRY W. MERRILL, Plaintiff, v. LANE FIRE AUTHORITY; TERRY NEY; STOELK INVESTIGATION AND CONSULTATION, LLC, an Oregon Limited Liability Company; and D. CRAIG STOELK, Defendants. |
| Court | U.S. District Court — District of Oregon |
LARRY W. MERRILL, Plaintiff,
v.
LANE FIRE AUTHORITY; TERRY NEY; STOELK INVESTIGATION AND CONSULTATION, LLC, an Oregon Limited Liability Company; and D. CRAIG STOELK, Defendants.
No. 6:20-cv-00984-MK
United States District Court, D. Oregon, Eugene Division
July 19, 2022
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, United States Magistrate Judge.
Plaintiff Larry Merrill filed this action against Defendants Lane Fire Authority and Terry Ney (“Chief Ney”; collectively “LFA”), as well as Stoelk Investigation and Consultation, LLC, and D. Craig Stoelk (collectively “Stoelk”). The Complaint alleges wrongful termination and
deprivation of rights claims against LFA and Stoelk, a defamation claim against LFA, and a negligence claim against Stoelk. LFA and Stoelk move for summary judgment on each of the claims against them, which Plaintiff opposes. See ECF Nos. 32, 41, 46, 57. For the reasons that follow, Defendants' motions should be GRANTED.
BACKGROUND
Plaintiff worked as an engineer and paramedic for LFA from 2007 until he was terminated on June 29, 2018. Pl.'s Resp. Opp'n to LFA & Ney's Mot. Summ. J. 3, ECF No. 41 (“Pl.'s LFA Opp'n”); Hansen Decl. Ex. 8, ECF No. 51-8. Plaintiff's termination and the events surrounding the termination are the factual basis for Plaintiff's claims.
Around October 2017, Plaintiff was paired with Whitney Hutcheson-Warren (“Hutcheson-Warren”) who served as a firefighter and paramedic for LFA. Hansen Decl. Ex. 2 at 18, ECF No. 51-2.
On the morning of May 5, 2018, Hutcheson-Warren texted Plaintiff asking if she could list him as a reference for a job application. Id. at 4. Plaintiff agreed. Id. Hutcheson-Warren received two additional text messages from Plaintiff. Hansen Decl. Ex. 3 at 6-9, ECF No. 51-3. In response to Hutcheson-Warren's observation that Plaintiff was funny, Plaintiff texted “[s]o are you whit.” Id. A second message immediately followed: “And stinking cute and sexy just saying sorry hope it's not to [sic] much or crossing a line.” Id.; Second Gould Decl. 19, ECF No. 58.[1]
Hutcheson-Warren responded that night at 11:29 p.m. with a screenshot of the conversation and wrote: “Hey Larry. I just wanted to say that I don't appreciate the way you were talking to me earlier. I have fun working with you and I don't want to feel uncomfortable at work. I don't want to see you get in trouble.” Hansen Decl. Ex. 3 at 6-9, ECF No. 51-3.
Plaintiff responded the following morning: “Omg[2] whit I am sorry I didn't mean to send that to you I am so so [sic] sorry I am freaking out please forgive me” and “I am literally like freaking out I am so so so [sic] sorry whit.” Id. Plaintiff sent another message at 9:15 a.m.: “I am so sorry I would understand if you went and said something to the Chiefs [sic] I am sorry whit I hope you can forgive me and it will never happen again I promise.” Id. Plaintiff sent a final message at 10:41 a.m.: “So I am guessing your [sic] very angry and upset and going to say something which will lead to me getting terminated I am truly sorry Whitney.” Id.
That same day, Plaintiff claims that he noticed that he had inadvertently sent text messages to other people around the same time-period as the “cute and sexy” text message. Merrill Decl. 7-9, ECF No. 59. Plaintiff reported this issue to his phone carrier and it was purportedly resolved. Id. at 10.
Hutcheson-Warren reported the text message to Lieutenant Matt Snauer (“Snauer”). Hansen Decl. Ex. 2 at 6-9, ECF No. 51-2. Snauer reported the incident to Captain Colwell (“Colwell”), Chief Borland, and Chief Ney. Id.
On May 15, 2018, Plaintiff received a letter notifying him that he was being placed on paid administrative leave “pending an investigation for sexual harassment in the workplace.” Hansen Decl. Ex. 4, ECF No. 51-4.
LFA's legal counsel retained Defendant Stoelk to investigate Hutcheson-Warren's claims of sexual harassment. First Gould Decl. 9-11, ECF No. 41-1. Stoelk then contacted Chief Ney to arrange to interview witnesses and conducted twelve interviews, occurring between May 21 and May 31, 2018. Id.; Hansen Decl. Ex. 2, ECF No. 51-2.
Stoelk first interviewed Hutcheson-Warren, Snauer, and Colwell. Hansen Decl. Ex. 2, ECF No. 51-2. Stoelk later interviewed Plaintiff. Id.; First Gould Decl. 12, ECF No. 41-1. Stoelk suggested interviewing other members of the fire station; Chief Ney responded, “how much this is going to cost and what are we going to get out of this?” First Gould Decl. 12, ECF No. 41-1. Ultimately, Stoelk interviewed a total of twelve individuals. Hansen Decl. Ex. 2 at 3, ECF No. 51-2.
The scope of the investigation expanded beyond the initial text message to include additional allegations of sexual harassment. See generally id. Specifically, several individuals, including Colwell, Megan Jozwiak (“Jozwiak”), and Jennifer Wilson (“Wilson”), also levied allegations of harassment. Id.
Colwell told Stoelk that in 2007, Plaintiff had sent an unsolicited photograph of Plaintiff's genitalia to Colwell's wife before they were married. Id. at 10. Stoelk subsequently interviewed Colwell's wife. Id. at 16-17. She confirmed that, at the time she was a volunteer firefighter for LFA, she received a number of unsolicited text messages from Plaintiff, inquiring “about how much pubic hair she had,” and subsequently an image “that depicted a penis.” Id.
Stoelk next interviewed Jozwiak, an engineer and firefighter who worked with Plaintiff from 2009 to 2012. Id. at 11-12. In her interview, Jozwiak alleged that Plaintiff had stolen her underwear from the communal laundry on several occasions. Id. at 12. In 2012, Jozwiak initiated a complaint after hearing from Plaintiff's ex-wife that she had discovered underwear in Plaintiff's bag that matched Jozwiak's missing underwear. Id. Stoelk subsequently interviewed Plaintiff's ex-wife who explained that Plaintiff admitted to taking Jozwiak's underwear during an argument between her and Plaintiff. Id. at 15-16.
Finally, Stoelk interviewed Wilson, a volunteer firefighter who had a consensual sexual relationship with Plaintiff in 2012. Id. at 23-24. Wilson stated that she had engaged in sexual relations with Plaintiff inside the fire station. Id.
Based on the investigation, Stoelk wrote a 40-page report concluding that Plaintiff violated several LFA policies, and “engaged in behaviors that if reported to law enforcement would constitute criminal acts, including harassment and theft.” Id. at 37-38.
On June 5, 2018, Plaintiff and his union representative, Rodney Stewart (“Stewart”), received a letter notifying him that a pre-disciplinary hearing was scheduled for July 29, 2018. Hansen Decl. Ex. 5, ECF No. 51-5. The letter included a copy of Stoelk's report from the investigation and identified the LFA policies and Oregon statutes that Plaintiff was accused of violating based on the investigation:
• LFA Policy 2.4
• LFA 2.1 Standards of Conduct
• LFA 2.2 Workplace Harassment/Sexual Harassment
• LFA Policy 2.3 Violence Free Workplace
• ORS 166.065 Harassment
• ORS 164.043 Theft in the third degree
Id. Stoelk testified that he reviewed the report prior to the pre-disciplinary hearing. Hansen Decl. Ex. 1 at 71:17-24, ECF No. 51-1. The letter went on to inform Plaintiff about his rights during the pre-disciplinary hearing:
This meeting is voluntary on your part. If you do not want to attend this meeting, or if you would prefer to respond in writing, please let the Chief know as soon as possible, but no later than Monday, June 18th. If you choose to respond in writing please provide your written statement by Monday, June 25th to the Fire Chief.
If you appear in person, or appear via a written statement, the Chief will take your statements into consideration before making his final disciplinary decision. If you choose not to appear, he will proceed with his disciplinary decision based on the information that is before him. As you know, he is considering discipline up to and including termination of your employment.
Hansen Decl. Ex. 5, ECF No. 51-5.
On June 29, 2018, Plaintiff attended the pre-disciplinary hearing with Stewart and his attorney. Hansen Decl. Ex. 1 at 57:22-58:4, ECF No. 51-1. Plaintiff's attorney was not permitted to speak at the hearing but was offered the opportunity to provide a written statement regarding her “due process concerns[.]” Second Gould Decl. 4, ECF No. 58. Plaintiff testified that he was aware of his right to provide written or oral testimony to rebut the allegations at the hearing. Hansen Decl. Ex. 1 at 58:5-14, ECF No. 51-1.
In advance of the hearing, Chief Ney prepared two letters: a termination letter and a “last chance agreement.” Hansen Decl. Ex. 7 at 15:14-16:1, ECF No. 51-7. At the conclusion of the hearing, Chief Ney gave Plaintiff the pre-written letter of termination. Id. at 16:2-12.
On September 25, 2018, Chief Ney testified at an unemployment hearing that he based the decision to terminate Plaintiff on “an ongoing pattern that dates back to 2012 of sexually-related behavior and conduct in the workplace.” Second Gould Decl. 7, ECF No. 58.
On August 13, 2019, Chief Ney testified at a Department of Public Safety Standards and Training (“DPSST”) hearing that he decided to terminate Plaintiff after reading Stoelk's report. Id. at 10:4-13.
On October 15, 2021, Chief Ney testified in his deposition that he decided to terminate Plaintiff “[a]fter seeing the results of the investigation and going through the hearing at the union office.” Id. at 13:1-5.
After the pre-disciplinary hearing, Plaintiff grieved the termination. Hansen Decl. Ex. 1 at 61:2-10, ECF No. 51-1. His union, however, voted to decline to pursue arbitration. Hansen Decl. Ex. 6 at 25:14-26:7, ECF No. 51-6.
In March 2019, Plaintiff received notification that the DPSST was seeking to revoke his certifications based...
To continue reading
Request your trial