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Shepherd v. McGee

United States District Court, D. Oregon

November 7, 2013

JENNIFER SHEPHERD, Plaintiff,
v.
KEN L. MCGEE, HUMAN RESOURCES MANAGER OF THE DEPARTMENT OF HUMAN SERVICES OF THE STATE OF OREGON, Defendant

Page 1212

For Plaintiff: Glenn Solomon, Portland, Oregon.

For Defendant: Ellen F. Rosenblum, ATTORNEY GENERAL, Marc Abrams, SENIOR ASSISTANT ATTORNEY GENERAL, Department of Justice, Portland, Oregon.

OPINION

Page 1213

OPINION & ORDER

Marco A. Hernandez, United States District Judge.

Plaintiff Jennifer Shepherd brings this 42 U.S.C. § 1983 First Amendment retaliation claim against Defendant Ken McGee, the Human Resources Manager for Plaintiff's former employer the Oregon Department of Human Services (DHS). Both parties move for summary judgment. Because I agree with Defendant that DHS's legitimate interests outweigh Plaintiff's First Amendment rights, I grant Defendant's motion and deny Plaintiff's motion.

BACKGROUND

Plaintiff began working for DHS in 2003 as a permanency caseworker. After two years in that position, she became a child protective services (CPS) worker, a position she held until her October 2012 termination. In her position as a CPS worker, Plaintiff investigated reports of child abuse and neglect that came to the attention of DHS. One of her primary functions was to prepare juvenile court cases and make recommendations for juvenile court disposition. The purpose of the work was to determine whether a child was safe in his

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or her home or should be removed from the home. If a child was not safe in his or her home, Plaintiff would develop a plan to ensure the child's safety. She and the District Attorney's Office would typically jointly file a juvenile petition for protective custody.

According to Plaintiff, although less than ten-percent of her cases went to court, every case had the potential to end up in court and every case was prepared as if it would. Pl. Dep. at 39, 40 (Ex. A to Abrams Decl.). In cases where Plaintiff herself did not file a juvenile petition to start a case, the District Attorney's Office or law enforcement could still subpoena her records. Id. at 41. Plaintiff found herself in court six to eight times per month. Id. at 53. Plaintiff regularly worked with the Polk County District Attorney's Office and the Oregon Department of Justice (DOJ) on cases. Id. at 43. The person she worked most closely with at the Polk County District Attorney's Office was Deputy District Attorney Max Wall. Id. At the DOJ, she worked with Senior Assistant Attorney General Brian Raymer. Id.

Plaintiff acknowledged that her job was " to be a neutral appraiser of the settings in which the children live[.]" Id. at 40. In working on dependency cases, she was not supposed to consider the employment status, religious beliefs, or political beliefs of the adults in the home, or concern herself with how they chose to spend money or furnish their home. Id. at 50-52. Plaintiff knew that a majority of parents being assessed by DHS were on Temporary Assistance to Needy Families (TANF), food stamps, and/or the Oregon Health Plan. Id. at 57.

While working at DHS, Plaintiff had a Facebook page. On that page, she identified herself as a " Child Protective Services Case Worker at Department of Human Services." Id. at 60-61; Ex. C to Abrams Decl. Plaintiff's Facebook page contained no general disclaimer that any content on the page was her opinion and not that of DHS and she never added such a disclaimer to any particular post. Id. at 61, 62. Plaintiff had hundreds of Facebook friends who had access to all of the content Plaintiff posted on her Facebook page. Id. at 60-61. Her Facebook friends included a Polk County Circuit ...


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