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Kardell v. Lane County

United States District Court, D. Oregon

September 3, 2014

MARC KARDELL, Plaintiff,


MICHAEL McSHANE, District Judge.

Plaintiff Marc Kardell brings this First Amendment action against his former employer Lane County, Liane Richardson, and Alex Gardner. Kardell claims defendants retaliated against him after he spoke out on various department practices. Kardell also claims he was fired without being provided a hearing, in violation of his Procedural Due Process rights. Because Kardell fails to demonstrate his speech was protected under his rights as a public employee, and because Kardell was not unconstitutionally denied a hearing, his claims fail. Defendants' motions for summary judgment (ECF No. 45 & 47) are GRANTED. Plaintiff's motion for partial summary judgment (ECF No. 52) on one affirmative defense is DENIED as moot.


From January 1999 until May 2012, Kardell worked as an Assistant County Counsel for Lane County's County Counsel's Office. Kardell was laid off on May 18, 2012. Kardell argues his layoff was essentially a termination in retaliation for speaking out on various issues regarding what he viewed as problems within the office and, more specifically, with defendant Richardson.

Kardell points to a few specific instances where he spoke out. First, in late 2011 and early 2012, Kardell allegedly spoke with someone in Human Resources about Richardson's investigation of several members of the Lane County Board of Commissioners (the "Board"). Later, on April 27, Kardell emailed the Board, copying defendant Gardner, regarding the retirement of Steve Vorhes, a County land use attorney. Although not mentioned in his email, Kardell now states he "had reason to think that Mr. Vorhes was being removed from his job because he had not agreed with Ms. Richardson in the past, and the forced resignation was being depicted as a budget move." Kardell Decl., ΒΆ 29.

Kardell argues the above speech was protected under the First Amendment and that defendants unlawfully retaliated against him for speaking out. As noted, on May 18, 2012, Kardell was laid off. Although defendants point to serious budget issues resulting in the layoff, Kardell states the budget issues were simply a pretext for unlawful retaliation.

A few months later, the County posted a job opening for an Assistant County Counsel 2 with "robust experience in labor and employment law." At the time of the layoff, Kardell was an Assistant County Counsel 3 with little experience in labor law. Kardell learned of the posting after the County filled the position. Although Kardell requested recall, the County determined Kardell was not eligible for recall under the County's Administrative Procedures Manual (APM).

Kardell includes hundreds of pages of documents relating to highly publicized issues surrounding County mismanagement and Richardson. Many of these documents are newspaper articles published in local media outlets such as the Eugene Register Guard. Ultimately, the Board terminated Richardson for cause.


The 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 nonmoving 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 (quoting Fed.R.Civ.P. 56(e)).


I. First Amendment Retaliation

Kardell alleges he suffered retaliation after exercising his First Amendment rights. Kardell must establish three elements: (1) that he spoke on a matter of public concern; (2) that he spoke as a private citizen and not as a public employee; and (3) that his protected speech was a substantial or motivating factor in the defendant's adverse employment actions. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).

Speech is "a matter of public concern when it can fairly be considered to relate to any matter of political, social, or other concern to the community.'" Johnson v. Multnomah Cnty., 48 F.3d 420, 422 (9th Cir. 1995) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). Speech alleging that public officials are not discharging government responsibilities, or are undertaking in wrongdoing or breaches of the public trust qualifies as a matter of public concern. Connick, 461 U.S. at 148. Speech is not of public concern when it ...

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