United States District Court, D. Oregon
THOMAS C. HOY, Plaintiff,
YAMHILL COUNTY, et al., Defendants.
Samantha J. Copeland, Portland, OR, Attorney for Plaintiff.
JoLynn G. McCulloch, Joshua P. Stump, Harrang Long Gary Rudnick, PC, Portland, OR, Attorneys for Defendants.
OPINION AND ORDER.
MARCO A. HERNNDEZ, District Judge.
In June of 2011, Plaintiff Thomas Hoy resigned from his position as Deputy Sheriff of the Yamhill County Sheriff's Office ("YCSO") amidst an internal investigation into whether he had made a false statement on a search warrant affidavit. He alleges that Defendants, including Yamhill County, Yamhill County Sheriff Jack Crabtree, County Counsel Rick Sanai, and Sergeant Steve Warden, violated his due process rights by not providing him a sufficient opportunity to clear his name, either before or after he resigned.
He also accuses Defendants of a variety of state law violations, including breach of contract, defamation, intentional interference with economic relations, negligence and retaliation. These claims arise from the release of Hoy's personnel file, including a 2009 performance review that reflected negatively on Hoy's reputation for truthfulness, and a report YCSO officials made regarding his separation to the Oregon state agency charged with certifying law enforcement officers. Defendants' actions, Hoy claims, have prevented him from gaining another position in law enforcement.
Currently before the Court is Defendants' motion for summary judgment on all claims. Regarding the federal claims, Hoy was not entitled to a name-clearing hearing because he fails to demonstrate Defendants made a stigmatizing statement about him in connection with his resignation. Hoy's state law claims also fail for a number of reasons. Defendants' motion for summary judgment is granted in its entirety.
The following facts are undisputed, except where noted otherwise. Hoy worked as a patrol deputy for YCSO from March 24, 2008 until he resigned on June 1, 2011. Schmidt Declaration ("Decl.") Exhibit ("Ex.") 9, ECF No. 45-3, at 1, 55. Sgt. Warden supervised Hoy during his first year at YCSO, and on May 17, 2009, Sgt. Warden completed Hoy's first performance evaluation. Sgt. Warden indicated on the evaluation form whether Hoy met expectations, needed improvement, or was unsatisfactory in a variety of categories, and added comments throughout. Id. at 1-9. Particularly relevant here is Hoy's "Unsatisfactory" rating in the "Working Relationships" category, which was accompanied by Sgt. Warden's comment that "[m]embers of [Hoy's] squad have been given the impression by Deputy Hoy that he is deceptive and will do what he needs to make an arrest or work a case." Id. at 4.
Captain Ken Summers and Defendant Sheriff Crabtree both reviewed and initialed the evaluation. Id. at 7. When presented with the report, Hoy submitted a page of typewritten comments agreeing, in large part, with its contents. Id. at 8. He did, however, take issue with some unspecified portions of the evaluation: "There are a couple categories where I was marked unsatisfactory where I feel it was not warranted. There are instances where I feel I was misquoted and where my directions from supervisors were obviously conflicting." Id. Hoy signed the evaluation on July 14, 2009, but he believed Sgt. Warden's criticism of his work was based on personal animosity, not on his performance. Id.; Hoy Deposition ("Depo."), ECF No. 59-1, at 17. Hoy brought his concerns to Capt. Summers, who urged Hoy to focus on the future. Hoy Depo., ECF No. 59-1, at 17. At that point, Hoy was no longer working under Sgt. Warden, and was several months into his second evaluation period. Capt. Summers told Hoy that Sgt. Warden's performance evaluation would be destroyed after Hoy received his second evaluation, which Capt. Summers believed would be more positive. Id. at 17-18.
Hoy's new supervisor, Sgt. Chris Ray, completed the second evaluation on May 13, 2010. Schmidt Decl. Ex. 9, ECF No. 45-3, at 11. The 2010 report was much more positive for Hoy-he rated as "Meets" or "Exceeds Expectations" in eleven of thirteen categories, and "Needs Improvement" in two. Id. at 12-14. Hoy again submitted written comments which, in large part, concurred with the findings in the report. "I feel the subject matter is very accurate and fair, " he wrote. "For the two remaining categories that need improvement, I have no complaints or rebuttal." Id. at 17.
After receiving his second performance evaluation, Hoy approached Capt. Summers about the 2009 evaluation from Sgt. Warden. According to their agreement, Capt. Summers gave Hoy the 2009 report and told him he could do whatever he wanted with it. Summers Depo., ECF No. 45-2, at 21-22. At the time, Capt. Summers believed that was the only copy of Hoy's 2009 performance evaluation. Id. at 21. There was, in fact, another copy kept by YCSO Administrative Support Program Manager Kellye Fetters. Id.
On October 26, 2010, the defense attorney in a criminal case, State v. Forbes, issued a subpoena duces tecum to Sheriff Crabtree to appear as a witness and bring with him Hoy's "entire internal affairs and disciplinary files and personnel file[.]" Answer to First Amd. Compl. ¶ 17. Defendant Rick Sanai, then-Yamhill County Counsel, filed motions to quash the subpoena or, alternatively, for in camera review and a protective order on documents the presiding judge, Yamhill County Circuit Court Judge Carroll Tichenor, ordered disclosed. Sanai Depo., ECF No. 45-2, at 5. After a hearing, Judge Tichenor ordered an in camera review of Hoy's personnel file, and Sanai submitted the file maintained by the County's Human Resources Department. Id. at 8. Judge Tichenor subsequently ordered the disclosure of portions of Hoy's 2009 performance evaluation, including Sgt. Warden's comments about Hoy's reputation for veracity, subject to a protective order. Id.; Schmidt Decl. Ex. 9, ECF No. 45-3, at 30.
In May 2011, Hoy prepared and signed a sworn affidavit for a search warrant before Yamhill County Circuit Court Judge Ronald Stone. Hoy Depo., ECF No. 45-1, at 56; Schmidt Decl. Ex. 9, ECF No. 45-3, at 45. The affidavit stated, in relevant part, that Hoy "received a call from a reliable confidential informant stating he knew [the suspect] to be hiding at the Park Apartments #19 in the city of McMinnville within Yamhill County." Schmidt Decl. Ex. 9, ECF No. 45-3, at 46. Judge Stone issued the warrant, which Hoy used to arrest the suspect and others. Id. at 49-51.
Shortly after the arrests, concern circulated within YCSO about Hoy's affidavit-that Hoy's "confidential reliable informant" was merely an anonymous source who had previously provided Hoy reliable information, but was not approved under YCSO's policy for using confidential informants. Crabtree Depo., ECF No. 45-1, at 10. YCSO opened an internal investigation into whether Hoy made a false statement in the affidavit and misled Judge Stone as to the reliability of his information. Geist Depo., ECF No. 45-1, at 28.
As part of that investigation, Sergeants Warden and Russ Vandewettering conducted an interview of Hoy on June 1, 2011, with Detective Rich Geist present as union steward to provide Hoy advice and counsel. Hoy Depo., ECF No. 45-1, at 60; Warden Depo., ECF No. 45-2, at 41. At the beginning of the interview, Hoy was read his Miranda rights and given a Garrity warning. Id. Following the interview, the sergeants met with Capt. Summers, and conveyed their belief the investigation would reveal Hoy made a false statement in the affidavit. Summers Depo., ECF No. 45-2, at 25-26.
Faced with that information, Capt. Summers gave Hoy a choice. He could resign immediately, in which case the internal investigation would stop. Or he could continue as an employee, be placed on administrative leave while the YCSO completed its investigation, and face the resulting discipline, which could include termination, Department of Public Safety Standards and Training (DPSST) decertification, or even criminal charges. Geist Depo., ECF No. 45-1, at 30; Hoy Depo., ECF No. 45-1, at 62; Summers Depo., ECF No. 45-2, at 26-27. Summers told Hoy that if he resigned, the YCSO would not notify DPSST of the investigation. Hoy Depo., ECF No. 45-1, at 63-64. After discussing his options with union representatives, Hoy tendered his resignation through a short letter, approximately one hour after the interview concluded. Geist Depo., ECF No. 45-1, at 33-34. The following day, Hoy approached Sheriff Crabtree and attempted, unsuccessfully, to revoke his resignation. Hoy Decl., ECF No. 59-10, ¶¶ 32-33. YCSO abandoned the internal investigation a few days later. Schmidt Decl. Ex. 9, ECF No. 45-3, at 117.
On June 23, 2011, YCSO Administrative Manager Fetters prepared and faxed to DPSST Form F-4, which notifies the agency when public safety employees are hired, change status, or separate from employment. Under "Type of Separation, " Fetters checked the box which stated "Resignation during investigation." Id. at 56. The following month, DPSST requested the investigation that led to Hoy's resignation, but eventually decided not to pursue revocation of Hoy's police officer certification. Id. at 116; Answer to First Am. Compl. ¶ 32.
Hoy's attorneys met with Sheriff Crabtree and Sanai on November 22, 2011, to discuss the revocation of his resignation and an opportunity to defend his reputation; at Mr. Sanai's request, Hoy did not attend. Dablow Decl., ECF No. 60, at ¶ 9. Following that meeting, Hoy's attorney sent a tort claim notice to the County, which it received on December 6, 2011. Sanai Decl., ECF No. 43, at ¶ 2. During the course of subsequent negotiations between the parties, Defendants offered Hoy the chance to make a statement about his resignation to the Yamhill County Board of Commissioners at one of its meetings in June of 2013. Schmidt Decl. Ex. 28, ECF No. 45-3, at 57-62. Through his attorney, Hoy declined the offer. "[T]he County's proposal to allow Mr. Hoy to make a statement is not a hearing and simply inadequate." Id. at 57. "A meaningful hearing, " she wrote, "would require more, including the opportunity to call and cross-examine witnesses (including the Sheriff), present evidence, and have a neutral decisionmaker involved." Id. at 59
Sometime in 2013, the YCSO released Hoy's personnel file and the records for the internal investigation about the search warrant affidavit in response to a public records request from the Oregonian. Copeland Decl. Ex. 19, ECF No. 64, at 13. In 2014, after Hoy filed this suit, Crabtree, Sanai, and Fetters gave testimony in a criminal trial that led Yamhill County Circuit Court Judge John L. Collins to declare Hoy's personnel records to be "Brady" material. Plaintiff's Response ("Pl. Resp.") at 13.
Hoy then filed his complaint asserting claims under 42 U.S.C. § 1983 for violations of his constitutional rights, specifically that Defendants deprived him of his liberty interest under the Due Process Clause by failing to provide him a pre- or post-deprivation name clearing hearing. First Amd. Compl. ¶¶ 46-60. Hoy alleges Defendants further violated his federal rights by failing to properly maintain his personnel files, and by negligently retaining, training, and supervising YCSO employees. Id. at ¶¶ 61-79. He also brings a number of state law claims including breach of contract, promissory estoppel, defamation, intentional interference with economic relations and prospective economic relations, general negligence, and retaliation. Id. at ¶¶ 80-121. Defendants move for summary judgment on all claims.
Summary judgment is appropriate if 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). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present "specific facts" showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex, 477 U.S. at 324).
The substantive law governing a claim determines whether a fact is material. Suever v. Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011).
I. Federal Claims
Hoy's brings his first claim for relief under 42 U.S.C. § 1983. First. Amd. Compl. at ¶¶ 46-60. That familiar statute provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law[.]
42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must both (1) allege the deprivation of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by a person acting under color of state law." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).
Hoy alleges his 1983 claim in three counts: 1) that Defendants violated his due process rights by failing to provide him either a pre- or post-termination name-clearing hearing; 2) that Defendants failed to "abide by Oregon laws and rules relating to... public records"; and 3) that Defendants "negligently breached" duties to Hoy relating to records retention, and employee training and supervision. First Amd. Compl. at ¶¶ 47, 50, 63, 74. Each claim is addressed in turn.
a. Name-Clearing Hearing
Hoy alleges that Defendants violated his Fourteenth Amendment right to due process by not offering him a name clearing hearing, either before or after he was terminated. First Amd. Compl. ¶¶ 46-60. Defendants move for summary judgment on this first count on multiple bases, including statute of limitations, waiver, qualified immunity, and that, even after construing all evidence in Hoy's favor, his claim fails as a matter of law. Defendants' Motion for Summary Judgment ("Defs. Mot.") at 12-21. The motion is granted regarding Hoy's claim for a pretermination hearing because he does not allege a violation of his property interest, and his liberty interest was not implicated until after he was terminated. Defendant's motion regarding Hoy's claim for a post-termination hearing is also granted because Hoy has failed to produce evidence that any of the Defendants made a stigmatizing statement in connection with his termination.
i. Property Interest
The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property without due process of law." More specifically, the state cannot deprive a person the freedom to engage in his chosen occupation without due process. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 572-73 (1972). An individual's termination from public employment may implicate two distinct interests, a property interest and a liberty interest. Boggs v. Hoover, No. 09-cv-116-ST, 2009 WL 2447553, at *5 (D. Or. Aug. 6, 2009) (citing Roth, 408 U.S. at 576).
An individual with a vested right in continued employment through, for example, tenure or a collective bargaining agreement, has a property interest that prohibits summary dismissal without a pre-termination hearing. Boggs, 2009 WL 2447553, at *5 (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)); Chen v. City of Medina, No. C11-2119 TSZ, 2013 WL 392707, at *9-10 (W.D. Wash. Jan. 31, 2013) (citing Loudermill, 470 U.S. at 542; Roth, 408 U.S. at 578) (additional citations omitted).
Mr. Hoy alleges that Defendants deprived him of his "liberty interest in his reputation and his chosen occupation" but he does not allege a similar deprivation of a property interest. See First Amd. Compl. ¶¶ 46-60. He argues in his opposition to summary judgment that the "Court should construe his 1983 claims broadly to... includ[e] his liberty and property interests as Hoy alleges entitlement to both pre- and post-termination name clearing hearings." Pl. Resp. at 14. Hoy then states that his employment with YCSO is pursuant to a collective bargaining agreement. Id.
But Hoy's complaint is clear: the first paragraph states that he "alleges a deprivation of his liberty interest in violation of the Due Process Clause of the Fourteenth Amendment." Compl. ¶ 1. Throughout the complaint, all of the allegations related to his due process claim are based on a name-clearing hearing, not that he was deprived of a property interest in his employment. See, e.g. Compl. ¶ 42 ("Defendants had the authority to provide Plaintiff with a pre- or post-termination name-clearing hearing and their failure to do so was unconstitutional."); Compl. ¶ 51 ("Defendants' practice, policy and/or custom of denying name clearing hearings to employees violated [Hoy's] constitutional rights."); Compl. ...