Opinion
6:20-cv-00984-MK
07-19-2022
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.
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.
The Court notes the accompanying exhibits to the First Gould and Second Gould Declarations, as well as the Merrill Declaration (ECF Nos. 41-1, 58, and 59) are comprised of individual PDF documentsi.e., the documents are not paginated according to their individual exhibit number in the electronic court file. Accordingly, the Court's references to specific page numbers correspond to the page number of the individual PDF documents, rather than to page numbers of individual exhibits.
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 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.
As used here, “Omg” means “oh my God” and is “used (as in email or text messages) to indicate that something is considered surprising, shocking, thrilling, etc.” OMG, abbreviation, Meriam-Webster Dictionary, available at https://www.merriam-webster.com/dictionary/OMG (last accessed June 27, 2022).
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 degreeId. 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 on “sexual harassment” and “criminal investigations.” Pl.'s LFA Opp'n 6, ECF No. 41. Plaintiff's certifications were revoked on October 30, 2019. First Gould Decl. 6365, ECF No. 41-1.
LFA and the union have a Collective Bargaining Agreement (“CBA”) which governs employee conduct and disciplinary procedures. Hansen Decl. Ex. 9, ECF No. 51-9. Regarding discipline and discharge of an employee, the CBA states that:
Documentation of discipline shall be placed in the employee's personnel file. After the timeframes indicated below, the discipline cannot be relied upon as the basis for progressive disciplinary action should another incident occur warranting discipline. However, the Authority reserves the right to the use of such documentation to refute a claim regarding the employee's overall employment record or to refute a claim that the employee did not have knowledge of a policy, rule, or procedure:
Step 1 - written record of oral reprimand 1 year
Step 2 - written reprimand 2 years
Step 3 - suspension or demotion 4 years
Any expired discipline will not be considered by promotion boards, referred to in written performance evaluations, nor relied upon as a basis for progressive discipline.
No documentation regarding unfounded complaints shall be placed in an employee's personnel file, used in reviews for promotion, referred to in written performance evaluations, nor relied upon as a basis for discipline or future discipline.Id. at 19-20. However, for more egregious violations of policy, the CBA provides:
In the event the District believes a member may be subject to discipline greater than suspension, with pay, the following due process measures will be followed:
1. The member will be notified in writing of the charges or allegations that may subject them to discipline.
2. The member will be notified in writing of the disciplinary sanction being considered.
3. The member will be given an opportunity to refute the charges or allegations either in writing or orally in an informal hearing with the Chief to he held not less than ten 10 days from the date the notice is received.
4. The Chief will consider the employee's presentation and will act on the charges or allegations in writing within 14 calendar days.Id. at 2.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs.,Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
Plaintiff's claims for wrongful termination and deprivation of rights hinge on whether he received the appropriate process due under the Fifth and Fourteenth Amendments to the United
States Constitution. In other words, whether Plaintiff's procedural due process rights were violated is dispositive of whether he was wrongfully terminated and deprived of any protected rights. Accordingly, this Findings and Recommendation (“F&R”) will analyze Plaintiff's wrongful termination and deprivation of rights claims collectively unless otherwise noted. Because the Court concludes that Defendants did not violate Plaintiff's procedural due process rights, summary judgment in favor of Defendants on those claims is appropriate. Plaintiff's claims for defamation and negligence similarly fail and summary judgment on those claims is appropriate as well.
See Compl. ¶ 24 (“Defendant Lane Fire Authority wrongfully terminated Plaintiff from his public employment without adequate due process under his Fifth and Fourteenth Amendment rights of the United States Constitution.”); Id. ¶ 27 (“As a result of Defendant Stoelk Investigation's coconspiracy with Defendant Lane Fire Authority's wrongful termination of Plaintiff without due process under the law, the DPSST revoked Plaintiff's certifications as a paramedic and firefighter.”); Id. ¶ 34 (“Defendant Ney, acting under the color of law as the Lane Fire Authority Chief, deprived Plaintiff of his Fifth and Fourteenth Amendment Rights of Due Process in terminating his employment on June 29, 2018 citing to statutory criminal harassment and theft as cause for his termination.”); Id. ¶ 38 (“Defendant Stoelk, acting under the color of law as a private co-conspirator of Defendant Lane Fire Authority and as the agent of a company hired under state law by Defendant Lane Fire Authority, deprived Plaintiff of his Fifth and Fourteenth Amendment Rights of Due Process in accusing Plaintiff of statutory criminal theft and harassment in his investigation report, which was used by Defendant Lane Fire Authority to terminate Plaintiff's public employment on June 29, 2018.”).
I. Wrongful Termination & Deprivation of Rights Claims
Defendants move for summary judgment on Plaintiff's wrongful termination and deprivation of rights claims asserting that the termination adequately safeguarded Plaintiff's procedural due process rights. See Defs. Lane Fire Authority and Terry Ney's Mot. Summ. J., ECF No. 32 (“LFA Mot.”); Defs. Stoelk Investigation and D. Craig Stoelk's Mot. Summ. J., ECF No. 46 (“Stoelk Mot.”). Plaintiff opposes both motions and raises a host of arguments as to why issues of material fact should preclude granting summary judgment on these claims. Pl.'s LFA Opp'n 3-6, ECF No. 41: see also Pl.'s Resp. Opp'n to Stoelk's Mot. Summ. J. 7-9, ECF No. 57 (“Pl.'s Stoelk Opp'n”).
To prevail on a “procedural due process claim, ‘the plaintiff must establish the existence of (1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of process.'” Robinson v. City of Donald, No. 6:19-cv-01145-MK, 2021 WL 504835, at *3 (D. Or. Jan. 26, 2021) (quoting Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957, 983 (9th Cir. 2011)), adopted, 2021 WL 496775 (D. Or. Feb. 10, 2021). Thus, “[t]he first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘property' or ‘liberty.'” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999); see also Board of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972) (“The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.”); Brewster v. Bd. of Educ., 149 F.3d 971, 982 (9th Cir. 1998) (“[t]o state a claim under the Due Process Clause, a plaintiff must first establish that he possessed a ‘property interest' that is deserving of constitutional protection”).
“A government employee has a constitutionally protected property interest in continued employment when the employee has a legitimate claim of entitlement to the job.” Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993); see also Blantz v. Cal. Dept. of Corrections and Rehabilitation, 727 F.3d 917, 922 (9th Cir. 2013) (“[G]overnment employees can have a protected property interest in their continued employment if they have a legitimate claim to tenure or if the terms of the employment make it clear that the employee can be fired only for cause.”) (emphasis omitted).
“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotations omitted). “The essential requirements of this pre-termination process are notice and an opportunity to respond.” Clements v. Airport Auth. of Washoe Cty., 69 F.3d 321, 332 (9th Cir. 1995) (emphasis omitted). More specifically, when an employee has a constitutionally protected property interest in their employment, due process requires “[1] oral or written notice of the charges against [them], [2] an explanation of the employer's evidence, and [3] an opportunity to present [their] side of the story.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
Whether these requirements are met “is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972); see also Mathews, 424 U.S. at 335 (explaining that courts look to three factors when evaluating whether due process has been satisfied: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”).
The constitutional minimum is “satisfied where the employee had access to the material upon which the charge was based and could respond orally and in writing and present rebuttal affidavits.” Cleveland Bd. of Educ., 470 U.S. at 542. Although “some kind of a hearing” is necessary before termination, “it need not be elaborate.” Id. at 542, 545. In fact, it can be “very limited” because “the pretermination hearing should be an initial check against mistaken decisions-essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.” Gilbert v. Homar, 520 U.S. 924, 929 (1997) (internal quotations omitted). “To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee.” Cleveland Bd. of Educ., 470 U.S. at 546.
Defendants do not dispute that Plaintiff had a protected property interest in his employment with LFA. Rather, they argue that Plaintiff received all the process that he was “due.” Plaintiff, on the other hand, asserts his procedural due process rights were violated because he was “never provided notice that the investigation was expanded in scope to include remote and obscure allegations from as far back as 2007.” Pl.'s LFA Opp'n 7, ECF No. 41; see also Pl.'s Stoelk Opp'n 10-11 (arguing that Plaintiff was not provided with notice of the charges against him), ECF No. 57. The Court disagrees.
Plaintiff received written notice of paid administrative leave pending an investigation into sexual harassment allegations on May 15, 2018. Specifically, the letter provided ample notice that he was being investigated for allegations related to sexual harassment:
Effective immediately, you are on paid administrative leave until further notice. This leave is non-disciplinary in nature, and is pending an investigation for sexual harassment in the workplace.
Downs Decl. Ex. 1, ECF No. 33-1 (emphasis added). Plaintiff's own deposition testimony confirms he was aware of the charges against him. Downs Decl. Ex. 2 at 64:2-14 (Q: “[W]ould you agree with me that after reading the letter you were aware that the reason you were put on leave was pending an investigation for allegations of sexual harassment?” A: “After I read the letter, off the property.”); Id. at 67:8-12 (Q: “Would you agree with me that you were aware that when you were put on administrative leave that the investigation into sexual harassment involved you?” A: “Yes.”), ECF No. 33-2.
Plaintiff also received “an explanation of [LFA's] evidence” against him when he was sent a copy of the 40-page investigative report written by Stoelk in conjunction with the June 5, 2018 Notice of pre-Disciplinary/Due Process Meeting:
You were previously placed on paid Administrative Leave and subsequently given notice of an Investigatory Interview regarding your alleged misconduct in the workplace. Attached please find the investigative report, from Investigator Craig Stoelk.
Downs Decl. Ex. 4, ECF No. 33-4; see also id. Ex. 3 (Stoelk Report). The letter went on to list the four specific LFA policies/standards and two Oregon criminal statutes that Plaintiff was alleged to have violated. Id. Critically, regarding Plaintiff's argument that he had no knowledge of the “expanded scope” of the investigation, the Stoelk Report, which Plaintiff does not dispute that he received along with the June 5 Notice, included allegations dating “as far back as 2007.” See, e.g., Downs Decl. Ex. 3 at 12 (alleging that Plaintiff stole a co-worker's underwear from the communal laundry on several occasions in 2012); Id. at 16-17 (alleging that Plaintiff sent a volunteer firefighter a number of unsolicited text messages including asking “about how much pubic hair she had,” and an image “that depicted a penis” in 2007); Id. at 23-24 (alleging that Plaintiff had sexual relations inside the fire station in 2012), ECF No. 33-3. In other words, Plaintiff's argument fails because he received notice of the allegations against him-including charges unrelated to the “cute and sexy” text message-over three weeks before his June 29 pre-disciplinary hearing.
Finally, Plaintiff had sufficient “opportunity to present his side of the story.” The June 5 letter informed Plaintiff of his right to respond orally or in writing:
Pursuant to the parties Collective Bargaining Agreement, I am providing you, with a copy to your union representative, of this written notice of proposed disciplinary action of termination of your employment, along with the grounds for this action, and your right to respond either orally or in writing.
Downs Decl. Ex. 4, ECF No. 33-4. (emphasis added). Although Plaintiff now attempts to manufacture an issue of disputed fact by claiming that he was not given an opportunity to be heard at the hearing, see Pl.'s LFA Opp'n 5, ECF No. 41; Pl.'s Stoelk Opp'n 10-11, ECF No. 57, his deposition testimony conflicts with the assertion. See Hansen Decl. Ex. 1 at 138:13-17, ECF No. 51-1 (Q: “And during this meeting with the chief who presented information on your side?” A: “On my side?” Q: “Correct.” A: “It was just testimony from me.”).
Plaintiff's conclusory assertions that the investigation of Plaintiff was not fair and impartial simply because (1) “it involved nine[-]year[-]old allegations” and (2) that “Defendant Stoelk improperly accused Plaintiff of criminal acts” also lack merit. Pl.'s Stoelk Opp'n 12, ECF No. 57. Significantly, Plaintiff fails to direct the Court to any relevant authority that stands for the proposition that (1) relying on nine-year-old allegations, or (2) how an investigative finding concluding that the subject of the investigation “ha[d] engaged in behaviors that if reported to law enforcement would constitute criminal acts, including harassment and theft” violate due process. Downs Decl. Ex. 3 at 39, ECF No. 33-3.
Plaintiff also asserts that Chief Ney decided to terminate Plaintiff before the results of the investigation began. See Pl.'s LFA Opp'n 2. This is so, Plaintiff asserts, because Chief Ney directed Stoelk to limit his investigation and discouraged him from interviewing other individuals who worked at Plaintiff's current fire station. Id. In support of the assertion, Plaintiff relies on the following testimony from the DPSST hearing that revoked Plaintiff's certifications:
Q. Okay. Why did you not interview any members of the fire-of Fire Station 101 other than Mr. Merrill and Ms. Hutcheson-Warren?
A. I am not familiar with the station numbers, but part of it is controlled by Mr. Ney to some degree. I had suggested originally that we interview other staff-females and other people at that fire station, but he would also express as to how much is this going to cost and what are we going to get out of this? And so, I mean, he asked me to investigate this with the encouragement from Ms. Moffat, but there were times I thought maybe he was a reluctant participant.
I mean, I had suggested to Ms. Moffat that other staff be interviewed and that they provide training to this organization after the fact, and I don't know if that has ever been done or not. That is not my business.
First Gould Decl. 12-13, ECF No. 41-1. The above passage fails to create a genuine issue of fact as to whether Chief Ney “directed” and “discouraged” Stoelk from interviewing additional individuals especially in light of Stoelk's testimony that he conducted a thorough investigation:
Q. But did you feel, Mr. Stoelk, that you had a complete investigation?
A. Well, I mean, you could investigate until the cows come home, but yes, I think that I did have a complete investigation in the sense of the people that I spoke with. I took their full statements. They had every opportunity to provide or change their
statements. I afforded the same opportunity to Mr. Merrill. I collected what there was in the form of physical evidence, which wasn't much. There-I think I did an investigation that was satisfactory.Id. at 14. At best, the record shows Chief Ney had concerns about the cost of the investigation. But Plaintiff points to no evidence demonstrating that Chief Ney did in fact interfere with the investigation other than his conclusory assertion to the contrary.
In the context of alleged procedural due process violations, courts presume government defendants exercise rational, good faith decision-making. See Stivers v. Pierce, 71 F.3d 732, 744 (9th Cir. 1995) (explaining some partiality or hostility standing alone does not rebut the presumption of honesty in government decision-making). Without more, Plaintiff's assertions are insufficient to create a genuine issue of material fact as to whether Chief Ney improperly meddled in the investigation's outcome by manipulating the witnesses to be interviewed. Put differently, Plaintiff has presented insufficient evidence to raise an inference that Chief Ney operated in bad faith or was somehow biased.
Plaintiff also attempts to create an issue of fact by asserting that Chief Ney gave “three different accounts of when he decided to terminate Plaintiff.” Pl.'s Stoelk Opp'n 8-9. Plaintiff does not explicitly argue the implication of his assertion, but presumably the assertion implicates potential bias or bad faith. Plaintiff's characterization of Chief Ney's rationale as conflicting, however, is not supported by the record.
Plaintiff's briefing cites exhibits 3, 4, and 5 to the Second Gould Declaration in support of the assertion. Upon review, however, the Court assumes Plaintiff intended to cite exhibit 2 as opposed to exhibit 5 given that Exhibit 5 is entirely unrelated to Chief Ney's rationale for terminating Plaintiff. As noted previously, because the supporting documents that Plaintiff relies on are not individually paginated by exhibit within CM/ECF, the Court's citations are to the individual page number of the entire PDF submissions.
A close review of the relevant explanations instead reveals that Chief Ney based his decision largely on Stoelk's report, which the Chief did receive before the meeting, but went into the hearing open to less drastic alternatives than termination. For example, during Chief Ney's testimony at Plaintiff's hearing for unemployment benefits, the Chief explained:
Q. So what did you base-in that investigation report, what did you base your decision to terminate Mr. Merrill on?
A. As I previously mentioned, it was based on an ongoing pattern that dates back to 2012 of sexually-related behavior and conduct in the workplace. There were instances that we were not aware of that had occurred, some as much as five years before. It was part of an ongoing pattern.
This was-this was-the precipitating incident were these text messages, but we saw an ongoing pattern that had gone on for a number of years.
Second Gould Decl. 7, ECF No. 58. At the hearing before the DPSST revoking Plaintiff's credentials, Chief Ney provided additional context:
Q. After you read that report, did you make a determination that you needed to terminate Mr. Merrill?
A. Yes, I did.
Q. Okay. And why was that?
A. I felt that his behavior was not compatible with our policies, that we have policies against sexually harassing fellow employees and that he had violated those policies.Id. at 10-11. Finally, during Chief Ney's deposition for this case, he explained as follows in response to Plaintiff's counsel's questions:
Q. At what point did you decide you wanted to terminate[] Larry Merrill?
A. After seeing the results of the investigation and going through the hearing at the union office.
Q. Let's talk about the hearing at the union office. That wasn't a hearing, was it?
A. That was the primary purpose of the meeting.
Q. Didn't you already have the termination letter drafted and ready to present to Mr. Merrill before that meeting?
A. I had multiple disciplinary options drafted and in my briefcase, that was one of them.
Q. Okay. What were the others?
A. At least one of them was to go back to a similar last-chance agreement, as he did under prior.
Q. And that was drafted and ready to present to him if you made that decision at that meeting?
A. Yes. Correct.
Q. What at the hearing caused you to present him with the termination letter?
A. I was hoping that if Mr. Merrill had presented something that refuted the physical evidence we had, the text messages, or if he showed some remorse and that he was-basically fessed up to what he had done and took responsibility for it. But I saw none of that. He continued to claim that there was something happening with his cell phone, but he provided no proof of that from any outside source.
Q. So I understand, your testimony today is that you would have not terminated Mr. Merrill at that meeting had he shown some remorse or provided physical evidence about the text message issue?
A. I would have considered not terminating him. But nothing I heard at that meeting changed my opinion. It was just a rehash of what had already been said.Id. at 14-15. When viewed in context, even in the light most favorable to Plaintiff, the “three accounts of when he decided to terminate Plaintiff” do not give rise to a reasonable inference that Chief Ney predetermined the decision to terminate Plaintiff.
Plaintiff also asserts that his procedural due process rights were violated because Defendants violated the CBA. Pl.'s LFA Opp'n 8-9. Assuming without deciding Plaintiff is correct, which the Court finds unlikely after reviewing the plain language of the CBA, the fact that the CBA provided for a post-termination grievance procedure forecloses Plaintiff's argument. See, e.g., Moore v. King Cty. Fire Prot. Dist. No. 26, 327 Fed.Appx. 5, 6-7 (9th Cir. 2009) (“even assuming the pre-termination hearing was procedurally deficient, available posthearing remedies in the form of detailed grievance procedures established by the collective bargaining agreement satisfied [plaintiff's] procedural due process right to present evidence before an impartial decision maker.”); Armstrong v. Meyers, 964 F.2d 948, 950 (9th Cir. 1992) (“public employer may meet its obligation to provide due process through grievance procedures established in a collective bargaining agreement.”); Walker v. City of Berkeley, 951 F.2d 182, 184 (9th Cir. 1991) (“The allegedly defective pretermination proceeding could have been cured by a due process post-termination hearing.”).
At bottom, Ms. Hutcheson-Warren reported an inappropriate text message that resulted in an investigation into Plaintiff for sexual harassment. Plaintiff received notice of the investigation. The investigation found serious allegations of misconduct. Plaintiff received detailed notice of the allegations-including allegations unrelated to the text message that served as the investigation's genesis-well in advance of his pre-disciplinary hearing and Plaintiff had ample time to prepare written or verbal responses to those allegations. A hearing was held at which Plaintiff had the right to present his side of the story. At the conclusion of the hearing, Chief Ney determined that termination of Plaintiff was appropriate. On this record, the Court concludes Plaintiff received all the process he was due.
As such, summary judgment should be granted to LFA and Chief Ney on Plaintiff's First and Third claims for relief. Summary judgment is similarly appropriate for Stoelk on Plaintiff's Second and Fourth claims for relief.
Because the Court concludes that Plaintiff received sufficient process, it need not reach Defendants' alternative arguments regarding Plaintiff's wrongful termination and deprivation of rights claims.
II. Defamation
LFA moves for summary judgment on Plaintiff's defamation claim. To state a claim for defamation, plaintiff must prove defendant: (1) made a defamatory statement; (2) published the defamatory statement; and (3) caused a resulting special harm or presumptive special harm. L&D of Oregon, Inc. v. American States Insurance Co., 171 Or.App. 17, 22 (2000). A “defamatory statement” must be “false” and “would subject the plaintiff to hatred, contempt or ridicule, or tend to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held or to excite adverse, derogatory or unpleasant feelings or opinions against the plaintiff.” Tubra v. Cooke, 233 Or.App. 339, 347 (2010) (citations and internal quotations omitted). A defamatory statement is “published” when heard or read by a third party. Wallulis v. Dymowski, 323 Or. 337, 343 (1996).
A. Statute of Limitations
“The statute of limitations for a defamation claim in Oregon is one year.” Kobold v. Good Samaritan Reg'l Med. Ctr., 832 F.3d 1024, 1048 (9th Cir. 2016) (citing ORS § 12.120(2)); see also Bock v. Collier, 175 Or. 145, 148 (1944) (explaining that an action for “damages for slander must be commenced within one year after the cause of action shall have accrued” and that a “right of action in such cases accrues from the time of publication of the slander”).
LFA argues that Plaintiff's defamation claim is barred by the statute of limitations. LFA Mot. 15, ECF No. 32. Plaintiff responds that his “union representative was not someone from which Plaintiff could experience reputational injury from in this context,” and therefore, the statements were not published on June 29, 2018, when Plaintiff received the letter. Pl.'s LFA Opp'n 10, ECF No. 41. Rather, Plaintiff argues, publication occurred when he became “aware” that the statements were published to DPSST on August 12, 2019.
Plaintiff's argument fails for two reasons. First, Plaintiff offers no authority for his conclusory assertion that his union representative was incapable of perceiving a defamatory statement and the Court is aware of no such cases so holding.
Second, Plaintiff's “awareness” standard theory misstates the law. Oregon's defamation statute does not discuss a potential plaintiff's subjective awareness of an allegedly defamatory publication. ORS § 12.120(2). Plaintiff's argument seems to originate from dicta in the Ninth Circuit's decision in Kobold. There, the Ninth Circuit applied ORS § 12.120(2) and concluded that the plaintiff's claim was time barred because the complaint was filed outside of the one-year statute of limitations. Kobold, 832 F.3d 1047-48 (“We agree that the claim was time-barred and affirm on that basis.”).
In dicta, Kobold went on to explain that “even if one focuses on when [the plaintiff] became aware of the defamatory statements themselves, the limitations period had expired when the suit was filed.” 832 F.3d at 1048. In any event, the Court concludes that publication of the allegedly defamatory statements occurred on June 29, 2018, when Plaintiff's union representative was copied on Plaintiff's termination letter. The statute of limitations therefore ran on June 29, 2019. Because the Complaint was filed on June 17, 2020, Plaintiff's defamation claim is barred by the statute of limitations and summary judgment should be granted as to this claim.
B. Absolute Privilege
In the alternative, Plaintiff's defamation claim is also barred by privilege. Oregon law recognizes absolute privilege as defenses to defamation claims. Johnson v. Brown, 193 Or.App. 375, 380 (2004). Absolute privilege “is a complete bar to a claim of defamation and precludes liability regardless of the defendant's state of the mind.” Johnson, 193 Or.App. at 380. Absolute privilege applies to “communications made in the discharge of a duty under express authority of law.” Id. For state officials, it extends to situations when “the public's interest in the unhampered operation of the government, when exercising such functions, outweighs an individual's interest in the preservation of reputation.” Id. at 381.
Here, Chief Ney is a state executive officer whose official duties require him to investigate allegations of workplace harassment, investigate alleged misconduct, and impose corrective action when appropriate. See Downs Decl. Ex. 6 (Lane Fire Authority's Policies) at 12, 14, ECF No. 33-6. Upon learning of allegations of sexual harassment against Plaintiff, Chief Ney initiated an investigation, which culminated in allegations of harassment and theft, among others, in the Stoelk Report. Id., Exs. 3, 4. After informing Plaintiff of the allegations against him and holding a hearing at which Plaintiff had an opportunity to respond to the allegations, Chief Ney issued Plaintiff's termination letter in the performance of his lawful obligations as fire chief. Id., Ex. 5.
The Court thus finds that Chief Ney was discharging a duty under express authority he lawfully possessed when he issued the June 29 termination letter. The Court further concludes that rooting out sexual harassment in public agencies falls squarely within the public interest. See Johnson, 193 Or.App. at 381; see also DeLong v. Yu Enterprises, 334 Or. 166, 169-171 (2002). Accordingly, absolute privilege applies to Chief Ney's purported defamatory statement and summary judgment should be granted as to Plaintiff's defamation claim.
III. Negligence
Stoelk argues that Plaintiff's negligence claim fails under Onita Pacific Corp. v. Trustees of Bronson because, even if he could establish the foreseeability element, that element standing “alone is not a sufficient basis to permit the recovery of economic losses on a theory of negligence.” 315 Or. 149, 165 (1992). In Onita, the Oregon Supreme Court explained the limiting principle of duty in negligence cases where a plaintiff only alleges economic loss:
Our precedents establish that a negligence claim for the recovery of economic losses caused by another must be predicated on some duty of the negligent actor to the injured party beyond the common law duty to exercise reasonable care to prevent foreseeable harm.
One ordinarily is not liable for negligently causing a stranger's purely economic loss without injuring his person or property. It does not suffice that the harm is a foreseeable consequence of negligent conduct that may make one liable to someone else, for instance to a client. Some source of a duty outside the common law of negligence is required.
Hence, where the recovery of economic losses is sought on a theory of negligence, the concept of duty as a limiting principle takes on a greater importance than it does with regard to the recovery of damages for personal injury or property damage.Onita, 315 Or. at 159 (citation, quotation marks, brackets, and footnote omitted).
To determine whether the Onita defendant owed the plaintiffs a duty of care, the court “examine[d] the nature of the parties' relationship and compare[d] that relationship to other relationships in which the law imposes a duty on parties to conduct themselves reasonably, so as to protect the other parties to the relationship.” Id. at 160. In other words, to maintain a negligence claim for purely economic loss, a plaintiff must establish a special relationship beyond a general common law duty of care, such as an attorney-client relationship or professional standard of care. Id. at 160-61 (stating and applying the rule in the context of negligent misrepresentation); Harris v. Suniga, 344 Or. 301, 308 (2008) (explaining that to recover in negligence for purely economic loss a “plaintiff would have to show some source of duty outside the common law of negligence, such as a special relationship or status that imposed a duty on the defendant beyond the common-law negligence standard”) (citations, quotations, and bracketing omitted).
The Complaint in this case is limited to purely economic loss damages. See Compl. ¶ 48 (“Plaintiff is damaged in an amount equal to his past and future lost wages as a paramedic and firefighter, to be determined at trial.”). Onita thus requires Plaintiff to establish a special relationship beyond the general common law. See Dossett v. Ho-Chunk, Inc., 472 F.Supp.3d 900, 917 (D. Or. 2020) (“Oregon law is clear that absent a special relationship not present here, a plaintiff cannot recover for negligently causing a stranger's purely economic loss without injury to his person or property.”) (citation and footnote omitted).
A review of the Complaint, however, reveals no allegations that a special relationship between Plaintiff and Stoelk existed. See Compl. ¶¶ 46-49. Instead, the Complaint generally asserts that Stoelk conducted a “negligent investigation.” Compl. ¶ 47. Significantly, Plaintiff's response failed to address Stoelk's economic loss argument entirely. See Stoelk Opp'n 13, ECF No. 57. As such, Plaintiff's negligence claim fails as a matter of law and Stoelk's motion for summary judgment should be granted.
RECOMMENDATION
For the reasons above, Defendants' motions for summary judgment (ECF Nos. 32, 46) should be GRANTED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).