United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. McSHANE, District Judge.
Between 1998 and September 2008, plaintiff Janell Howard worked as Finance Director for the City of Coos Bay. During her employment, plaintiff contested a supplemental accounting bill submitted by Robert Wall for work performed during a 2006 financial audit. Plaintiff's supervisor, Joyce Jansen (subsequently Charles Freeman), along with other City officials, sided with Wall. Plaintiff, despite City opposition, filed a complaint against Wall with the Oregon Board of Accountancy. Plaintiff was subsequently terminated on September 16, 2008.
Plaintiff filed a complaint ( Howard I ) against Coos Bay and Freeman for unlawful termination. During the Howard I litigation, plaintiff applied for her former position with the city, but was notified in a rejection letter that she would not be considered. The Howard I trial commenced on October 31, 2011, and lasted until November 2, 2011. At trial, plaintiff successfully introduced the rejection letter for purposes of damages. The jury, having considered the letter, awarded plaintiff $201, 000 in damages. On July 30, 2012, plaintiff filed this complaint ( Howard II ) against Coos Bay and Rodger Craddock for retaliation (i.e., failing to consider her employment application) under 42 U.S.C. § 1983 and ORS § 659A.230.
This Court is asked to consider whether plaintiff's Howard II claims are barred by claim or issue preclusion because of the Howard I verdict. Because (1) the two actions arise out of the same transactional nucleus and (2) plaintiff previously had a full and fair opportunity to explain her damages resulting from the rejection letter, this Court finds that plaintiff's current claims are barred. Thus, defendants' motion for summary judgment, ECF No. 42, is GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
This action arises out of an alleged retaliatory hiring decision occurring between November 1, 2011, and November 7, 2011. See, e.g., Decl. of Rodger Craddock 5, ECF No. 44 (indicating November 1, 2011); Supplemental Decl. of Counsel 1, ECF No. 55-6 (indicating sometime on or after November 3, 2011). Between 1998 and September 2008, Coos Bay employed plaintiff as Finance Director. See Howard v. City of Coos Bay, Civil No. 09-6257-AA, 2011 WL 899619, *1 (D. Or. Mar. 9, 2012) ( Howard I ). On September 16, 2008, Coos Bay terminated plaintiff's employment. Id. at 2. On September 14, 2009, plaintiff filed a complaint, Howard I, against Coos Bay and Freeman. Pl.'s Compl. 1-13, Civil No. 6:09-cv-06257-AA, Howard I, ECF No. 1. Plaintiff subsequently amended her complaint on October 26, 2010. Pl.'s Am. Compl. 17, Civil No. 6:09-cv-06257-AA, Howard I, ECF No. 24.
In Howard I, plaintiff asserted five claims, including: (1) First Amendment Retaliation, 42 U.S.C. § 1983; (2) Fourteenth Amendment Due Process, 42 U.S.C. § 1983; (3) Fourteenth Amendment Due Process Liberty Interest, 42 U.S.C. § 1983; (4) Retaliation for Whistleblowing, ORS § 659A.203; and (5) Wrongful Discharge. Id. at 10-16. On March 9, 2011, Judge Aiken awarded defendants summary judgment on all claims except for plaintiff's First Amendment Retaliation claim. See Howard I, 2011 WL 899619 at *12.
Jury trial commenced in Howard I on October 31, 2011, with the jury reaching a verdict in favor of plaintiff on November 2, 2011. Minutes of Proceedings, Nov. 22, 2011, Civil No. 6:09-cv-06257-AA, Howard I, ECF No. 105. The jury found that "defendants took adverse employment action against plaintiff in connection with her termination because of her complaint to the Oregon Board of Accountancy." Verdict Form 2, Civil No. 6:09-cv-06257-AA, Howard I, ECF No. 109. As a result, the jury awarded plaintiff:
A. Economic Damages: $150, 000
B. Non-Economic Damages: $50, 000
Total Damages: $200, 000
Id. Plaintiff was also awarded $1, 000 in punitive damages against Freeman. Id. at 2-3. Plaintiff's sought economic damages included: lost income; lost benefits and seniority; commuting and housing expenses; loss of future income; and impairment of earning capacity. Pl.'s Am. Compl. 10-11, Civil No. 6:09-cv-06257-AA, Howard I, ECF No. 24. Plaintiff testified at length as to her loss of future income. See Decl. of Robert E. Franz 4, ECF No. 45-8. As to her non-economic damages, plaintiff's sought damages included: significant emotional distress; public humiliation; damage to her reputation; depression; loss of dignity and self-esteem; anxiety; loss of companionship of her family throughout the week; and loss of enjoyment of life. Pl.'s Am. Compl. 10-11, Civil No. 6:09-cv-06257-AA, Howard I, ECF No. 24.
In this action, Howard II, plaintiff contends that defendants unlawfully refused to consider her application to fill her former position as Finance Director for Coos Bay. See Pl.'s Compl. 4, ECF No. 1 ("Defendants failed to give [plaintiff] the open City Finance Director position...."). Following plaintiff's termination on September 16, 2008, Coos Bay hired Rae Lea Cousens as Finance Director. Cousens worked in that capacity until May 2, 2011, when she tendered her notice of retirement. Decl. of Rodger Craddock 2, ECF No. 44. Cousens retirement became effective May 27, 2011. Id. On May 4, 2011, Craddock appointed Susanne Baker as Acting Finance Director, while "a search for a replacement for Ms. Cousens was conducted." Id.
Between June 10, 2011, and July 8, 2011 (Application Period I), Coos Bay received 29 applications for the Finance Director position, including an application from plaintiff. Id. at 2-3. On July 6, 2011, Craddock notified plaintiff by letter that she would not be considered for the vacant position. That letter provided:
I am in receipt of your request to be considered for the open position of Finance Director with the City of Coos Bay. Unfortunately, as your prior employment with the City was terminated for cause, I am not in a position to consider you for the current position. I do wish you the best with your continued employment with the City of Brookings.
Decl. of Robert E. Franz, Jr. 1, ECF No. 45-13. In Howard I, the jury considered this letter for purposes of damages, independent of plaintiff's duty to mitigate. See infra § I(B). Coos Bay subsequently interviewed the top applicants from the remaining pool, but none of the candidates were ultimately hired. Decl. of Rodger Craddock 3, ECF No. 44.
Coos Bay commenced Application Period II on August 29, 2011. Id. at 4. Between August 29, 2011, and the end of the application period, September 30, 2011, Coos Bay received 23 applications. Id. Coos Bay interviewed the top three applicants on October 25, 2011, but found that "none of [them] were acceptable." Id. That same day, Craddock asked Baker whether "she would consider taking the Finance Director position permanently." Id. On October 26, 2011, Baker allegedly accepted the offer. Id. On October 28, 2011, Craddock asked Baker and Amy Kinnaman for biographical statements in preparation for announcement of their respective appointments. Id. at 4-5. On November 2, 2011, at 2:43 p.m., Baker emailed Craddock her biographical statement. See Decl. of Robert E. Franz, Jr. 1, ECF No. 45-19. On November 4, 2011, Coos Bay, announced the promotions of Baker and Kinnaman through a "City Update." Id. at 1, ECF No. 45-20. This announcement came two days after the jury rendered a verdict in Howard I.
STANDARD OF REVIEW
This Court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue is "genuine" if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is "material" if it could affect the outcome of the case. Id. The court reviews evidence and draws inferences in the light most favorable to the non-moving party. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). When the moving party has met its burden, the non-moving party must present "specific facts showing that there is a genuine issue for trial. " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in original).
Defendants contend that plaintiff's claims are barred by (1) claim preclusion and (2) issue preclusion. Because this Court finds that plaintiff's claims are barred by both claim and issue preclusion, this Court declines to discuss the merits of plaintiff's retaliation claims under 42 U.S.C. § 1983 and ORS § 659A.230.
I. Claim Preclusion
"Claim preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit." New Hampshire v. Maine, 532 U.S. 742, 748 (2001). This Court applies federal claim preclusion "when there is: (1) an identity of claims; (2) a final judgment on the merits; and (3) identity or privity between parties.'" Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (quoting ...