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Greisen v. Hanken

United States District Court, D. Oregon

May 12, 2017

DOUG GREISEN, Plaintiff,
JON HANKEN, Defendant.

          John D. Ostrander and William A. Drew, Elliott, Ostrander & Preston, PC, Of Attorneys for Plaintiff.

          Karen M. Vickers and Blake H. Fry, Mersereau Shannon LLP., Of Attorneys for Defendant.


          Michael H. Simon, United States District Judge

         Plaintiff, Doug Greisen (“Greisen”), is the former Chief of Police of Scappoose, Oregon. Greisen brought this lawsuit against Defendant Jon Hanken (“Hanken”), the former City Manager for the City of Scappoose, and others. Before trial, the Court dismissed all defendants other than Hanken. From July 19, 2016 through July 21, 2016, this action was tried before a jury on Greisen's claim that Hanken violated 42 U.S.C. § 1983 by retaliating against Greisen based on Greisen's exercise of speech protected under the First Amendment. The jury found in favor of Greisen and awarded him $1, 117, 488 in economic damages and $3, 000, 000 in non-economic damages. Hanken timely filed post-trial motions seeking, in the alternative, judgment as a matter of law, a new trial, or remittitur. ECF 120. For the reasons that follow, Hanken's post-trial motions are denied.


         A. Renewed Motion for Judgment as a Matter of Law

         Under Rule 50(b) of the Federal Rules of Civil Procedure, a court may grant a renewed motion for judgment as a matter of law if “the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict.” E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009) (quotation marks omitted); see also Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (explaining that judgment as a matter of law must be granted if it is clear that “the evidence and its inferences cannot reasonably support a judgment in favor of the opposing party”). Because a motion under Rule 50(b) is a renewed motion, a party may not “raise arguments in its post-trial motion for judgment as a matter of law under Rule 50(b) that it did not raise in its pre-verdict Rule 50(a) motion.” Go Daddy Software, 581 F.3d at 961 (quotation marks omitted).

         In evaluating a motion for judgment as a matter of law, the Court must view all the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Experience Hendrix, LLC v. Ltd., 762 F.3d 829, 842 (9th Cir. 2014). The Court may not make credibility determinations, weigh the evidence, or “substitute its view of the evidence for that of the jury.” Krechman v. Cty. of Riverside, 723 F.3d 1104, 1110 (9th Cir. 2013) (quotation marks omitted). A jury's verdict must be upheld if it is supported by substantial evidence. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1242 (9th Cir. 2014); Johnson v. Paradise Valley Unified Sch. Dist, 251 F.3d 1222, 1227 (9th Cir. 2001). Substantial evidence is “such relevant evidence as reasonable minds might accept as adequate to support a conclusion even if it is possible to draw two inconsistent conclusions from the evidence.” Weaving, 763 F.3d at 1111 (quotation marks omitted).

         B. New Trial

         Under Rule 59(a) of the Federal Rules of Civil Procedure, a court “may grant a new trial only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quotation marks omitted); see also Shimko v. Guenther, 505 F.3d 987, 993 (9th Cir. 2007). Unlike a determination under Rule 50, the Court is not required to view the evidence in the light most favorable to the non-moving party when considering a motion for new trial under Rule 59(a). Experience Hendrix, 762 F.3d at 842. Instead, the Court “can weigh the evidence and assess the credibility of the witnesses.” Id. (citing Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (per curiam)).

         As explained by the Ninth Circuit, after weighing the evidence, the trial judge faces a difficult task:

On the one hand, the trial judge does not sit to approve miscarriages of justice. His power to set aside the verdict is supported by clear precedent at common law and, far from being a denigration or a usurpation of jury trial, has long been regarded as an integral part of trial by jury as we know it. On the other hand, a decent respect for the collective wisdom of the jury, and for the function entrusted to it in our system, certainly suggests that in most cases the judge should accept the findings of the jury, regardless of his own doubts in the matter. Probably all that the judge can do is to balance these conflicting principles in the light of the facts of the particular case. If, having given full respect to the jury's findings, the judge on the entire evidence is left with the definite and firm conviction that a mistake has been committed, it is to be expected that he will grant a new trial.

Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir. 1987). Thus, a district judge should not award a new trial unless the court has a definite and firm conviction that the jury has made a mistake. Id. at 1372. “While the trial court may weigh the evidence and credibility of the witnesses, the court is not justified in granting a new trial merely because it might have come to a different result from that reached by the jury.” Roy v. Volkswagen of Am., Inc., 896 F.2d 1174, 1176 (9th Cir. 1990) (quotation marks and citation omitted).

         C. Remittitur

         Remittitur is available to reduce an excessive verdict. Pershing Park Vilas Homeowners Ass 'n. v. United Pac. Ins. Co., 219 F.3d 895, 905 (9th Cir. 2000) (citation omitted). “Where there is no evidence that passion and prejudice affected the liability finding, remittitur is an appropriate method of reducing an excessive verdict.” Seymour v. Summa Vista Cinema, Inc., 809 F.2d 1385, 1387 (9th Cir. 1987), amended on other grounds, 817 F.2d 609 (9th Cir. 1997). In considering a motion for remittitur, the trial court must view the evidence concerning damages in a light most favorable to the prevailing party. Id. If the trial court concludes that an award of damages is excessive, it may either grant the defendant's motion for a new trial or deny the motion conditioned upon the prevailing party's acceptance of a remittitur. Silver Sage Partners v. City of Desert Hot Springs, 251 F.3d 814, 818 (9th Cir. 2001); see also Seymour, 809 F.2d at 1387.

         The Ninth Circuit has explained, however, that a district court “must uphold the jury's finding unless the amount is grossly excessive or monstrous, clearly not supported by the evidence, or based only on speculation or guesswork.” Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir. 1996); see also Brady v. Gebbie, 859 F.2d 1543, 1557 (9th Cir. 1988) (“An otherwise supportable verdict must be affirmed unless it is ‘grossly excessive' or ‘monstrous' or ‘shocking to the conscience.'”). Thus, when granting a motion for remittitur, the trial court does not substitute its judgment for that of the jury, but instead reduces the judgment to the “maximum amount sustainable by the proof.” Oracle Corp. v. SAP AG, 765 F.3d 1081, 1094 (9th Cir. 2014).


         In 2001, Greisen became the Chief of Police in Scappoose, Oregon. In 2004, Hanken became the City Manager of Scappoose. The City Manager has the authority to hire, fire, and supervise the Chief of Police. The City Manager also is responsible for the City's budget, among other things. The Scappoose City Council, as a body, has the authority to hire and fire the City Manager. The City Council has no direct authority over the Chief of Police.

         A. Greisen's Statements About Hanken's Management of the City Budget

         By 2012, Greisen had become concerned about Hanken's management of the City's overall budget. Greisen voiced his concern to several people outside his chain of command, including City Councilor Judi Ingham. In addition to discussing his specific concerns about the Police Department's budget, Greisen discussed with Councilor Ingham matters concerning Hanken's management of the overall City budget, including the budgets of other departments. Greisen also discussed his concerns regarding several other departmental budgets with City Councilor Donna Gedlich.

         On May 14, 2012, the Scappoose City Council held a budget meeting. Two councilors expressed a desire to hire more police officers than Hanken's proposed City budget would have allowed. At that meeting, Greisen did not voice support for Hanken's overall budget. The following day, May 15, 2002, Hanken said to Greisen, “I'm mad at you. You stay on your side of City Hall. I don't want to see you over here.” Trial Transcript 72. After Hanken told Greisen to stay on his side of City Hall, Greisen began to ask himself, “What's being hidden?” Id. at 73. Greisen then spoke with City Finance Administrator Jill Herr and with other departmental heads, including the heads of the Water Department, the Sewer Department, and the Public Works Department. From these conversations, Greisen learned that, shortly before going into the budgeting process, Hanken had been holding back the City from paying invoices received from various City vendors for as much as three or four months. Greisen also learned that vendors had been asking when they would be paid. Eventually, the vendors would be paid in the following fiscal year. Greisen learned that this practice was happening not only with the Police Department's budget but in other department budgets throughout the City.

         Greisen also raised questions about the city's audit. In August 2012, Hanken told Greisen that Greisen had better “quit listening to Councilor Ingham about her-the budget.” Id. at 76. Hanken added: “Ms. Ingham will be the one that [sic] will ruin your career here in the City of Scappoose.” Id.

         In the spring of 2013, Greisen continued to be concerned about the fact that vendor invoices were still being held back by more than 30 days throughout the City's departments. Greisen asked City Finance Administrator Herr about that practice. Herr confirmed that vendor invoices were still being held back for payment in other City department besides the Police Department, explaining that she was just doing what she had been told to do by Hanken.

         B. Hanken's Actions Against Greisen in 2013

         1. The First Investigation: Allegations Relating to the PIT Maneuver

         In February 2013, Greisen learned that one of his officers was attempting a traffic stop and arrest of a hit-and-run suspect. The officer requested backup. Greisen was less than a mile away, so he left a city council meeting to assist. It was common for Greisen to assist his officers when they needed help. After observing the suspect, Greisen directed another officer to perform a PIT maneuver, to stop the suspect's vehicle. (“PIT” is an acronym for “precision immobilization technique.” A PIT maneuver is a law enforcement pursuit tactic by which a pursuing car causes a pursued car to turn sideways, resulting in the pursued driver losing control and being forced to stop.) The suspect was arrested and later pleaded guilty to reckless driving and recklessly endangering another.

         On July 17, 2013, Hanken sent Greisen a letter notifying Greisen that Hanken had directed an outside agency to investigate Greisen's February 3, 2013 authorization of the PIT maneuver. In his letter, Hanken also told Greisen, “You are hereby notified and ordered not to discuss this matter with anyone except your spouse, significant other, or your attorney.” Trial Ex. 33. As a result of this investigation, on August 23, 2013, Hanken imposed a disciplinary sanction on Greisen of two weeks suspension without pay. Hanken informed Greisen of that suspension by letter, adding: “As I draft this letter, I cannot help but wonder if you would be able to maintain your position if this report was known by or reported to the news media.” Trial Ex. 35. Until this time, this was the only disciplinary sanction that Greisen had received in 26 years in law enforcement.

         On August 26, 2013, Greisen appealed his disciplinary sanction to the City's Personnel Review Committee. Trial Ex. 37. On October 14, 2013, the Personnel Review Committee concluded that “the degree of discipline issued to Police Chief Doug Greisen . . . is entirely out of proportion based on the totality of the circumstances on the night of Feb. 4th.” Trial Ex. 49. The Personnel Review Committee further recommended that “the City Manager retract, and the Scappoose City Council oversee the retraction, all discipline issued to Chief Greisen.” Id.

         2. The Second Investigation: Allegations of a Hostile Work Environment

         On August 1, 2013, Hanken sent Greisen a letter notifying him that the City will be conducting a second investigation into Greisen's conduct. This investigation related to the management of the Scappoose Police Department. According to Hanken, information had come forward “that raises the issue of whether a hostile work environment exists within the City's Police Department.” Trial Ex. 34. Again, Hanken wrote to Greisen, directing: “You are hereby notified and ordered not to discuss this matter with anyone except your spouse or your attorney.” Id. On September 6, 2013, less than two weeks after Greisen filed his appeal on August 26, 2013, relating to his disciplinary sanction concerning the February 2013 PIT maneuver, Hanken placed Greisen on paid administrative leave pending the outcome of the investigation relating to the allegation of a hostile work environment. Hanken also informed the local newspaper that there are additional “potential issues” that are prompting a second investigation into Greisen. Trial Ex. 39. This was contrary to City policy and “wasn't appropriate.” Trial Transcript 467, 474-76.

         Retired Oregon State Police Officer Aaron Olson investigated Police Chief Greisen for the City. After interviewing witnesses and reviewing documents, Olson concluded that the allegation that Greisen harassed employees or maintained a hostile work environment was not supported by the evidence. Id. at 217.

         3. The Third Investigation: Allegations of Unauthorized Bank Accounts

         On September 30, 2013, Hanken sent Greisen a letter notifying him that the City will be conducting a third investigation into Greisen's conduct. This investigation related to allegations that Greisen may have violated the City's financial policies by using unauthorized bank accounts. Trial Ex. 47. Again, Hanken directed Greisen: “You are hereby notified and ordered not to discuss this matter with anyone except your spouse, significant other, or your attorney.” Id.

         This investigation related to charitable fundraising activities that the Scappoose Police Department had been conducting since the mid-1980s, including under three police chiefs who came before Greisen. Trial Transcript 101. As Greisen explained at trial, when people contributed small amounts of money to the police for charitable programs run by the police, the money was deposited into accounts maintained by the Police Department at Chase Bank. Eventually, these accounts had more than $2, 000, and Chase began to charge a $15 per month service fee. After discussing this with then-Lieutenant Norman Miller of the Scappoose Police Department (who later succeeded Greisen as chief), Greisen closed the Chase accounts and kept the charitable money in cash in a bag maintained in the chiefs office. Id.

         When people would donate money, they would be given a receipt. According to Greisen, everyone in the City “knew about this account, ” and no one ever told Greisen that it was unauthorized. Id. at 102-03. Miller knew about the charitable contributions, the fact that the bank accounts that had been maintained for that money for a long time were closed in September 2012, and that the cash, then totaling approximately $2, 400, was afterwards kept in the police chiefs office. In fact, in 2011, Miller had been one of the signers on the bank accounts. Id. at 375-77, 388-89. After Hanken appointed Miller as interim Police Chief while Greisen was on administrative leave, Miller had another Police Department employee take several photographs of the money spread out on a desk. Id. at 391. Copies of those photographs were given to Hanken. Id.

         Hanken then provided comments and a photograph of the cash spread to the newspaper, in violation of City policy. Id. at 467, 474-76. Based on information provided by Hanken, the local newspaper ran a story with the headline, “Greisen's use of unauthorized account probed” and depicted a spread of several hundred dollar bills. Trial Exhibit 51; Trial Transcript 480-81. When Miller saw the photograph of the money spread in the local newspaper his reaction was to wonder, “How did it get there?” Id. at 391. Miller had not authorized the photograph to be sent to the newspaper because “[t]his was an internal investigation that needed to be dealt with internally, not outside.” Id. at 392. Miller knew all about the charitable source of the cash and its history. At trial, Miller confirmed that when “you lay it out on a table like this and you take a picture of it, ” it could be “perceived” as a “drug bust photo.” Id.

         At trial, Hanken admitted during cross examination that he provided a copy of the photograph to the news media and made the statements that were attributed to him in the newspaper article. Trial Transcript 481; Trial Ex. 51. He admitted that he told the news media “that a bank bag was discovered in the chiefs desk and that its contents raised questions about whether the chief was maintaining an unauthorized account.” Trial Transcript 481. But Hanken also admitted during cross examination that at the time he knew that this was not money that had just been found or discovered in Greisen's office. Id. at 481-82. Indeed, Hanken admitted that he had known for some time about the Police Department's charitable fundraising activities (indeed, Hanken had contributed to them), that the money had not being going through the City's budgetary process, and that the practice of maintaining this money outside of the City's budgetary process had in fact previously been “authorized.” Id. at 482-89. Hanken also admitted that he knowingly made false statements to the news media, including stating that the money in Greisen's desk was “unauthorized.” Id.

         C. Hanken Resigns

         On October 14, 2013, the City's Personnel Review Committee recommended retracting all discipline issued against Greisen relating to the PIT maneuver. Hanken “viewed this as being the end of [Hanken's] career in Scappoose.” Trial Transcript 456. Less than 30 days later, on November 8, 2013, Hanken resigned his position as City Manager.

         As described previously, however, shortly before Hanken resigned, he went to the local news media and told them about finding cash in Greisen's desk drawer. Hanken also provided the news media with a photograph of the discovered cash, which the news media published. Trial Transcript 491; Trial Ex. 51. As Hanken further admitted at trial

Q. Isn't it true that you called up the media in the middle of the investigation to give them this information, this false information that you testified is incorrect, because you learned city councilors were sending emails to each other and the one that you had received had basically said they wanted to stop the investigations of Mr. Greisen?
A. Correct.
Q. And you didn't want that to happen, did you?
A. No, I didn't.
* * *
Q. Before you resigned, you went to the press and gave these statements about a bag of money found in the desk drawer with no accounting whatsoever when you know, you've testified, that those were not true statements; correct?
A. I believed the statements were true at the time.
Q. Well, I believe your testimony was earlier that you knew better.
A. Right.
Q. And you gave them this photograph, Exhibit 51? This photograph?
A. Yes, I did.
Q. Have you seen photographs like that before?
A. Yes, I have.
Q. Where?
A. In the news, on TV, in newspapers.
Q. In instances where money is seized or stolen; correct?
A. Some, yes.
Q. Or drug busts, yes?
A. Yes. I've also seen where the money is in piles related to an economic development effort.

Trial Transcript 490-92.

         Also, regarding the second investigation, Hanken admitted the following:

Q. And you had never observed anything about Mr. Greisen that led you to believe there was a hostile work environment?
A. Not with Carpenter.
Q. Not with anyone?
A. No. There was a incident a few years back with an Officer Scott Hanley who came to complain about an incident but came back the next day and said, “No, I'm not going to file a complaint.”
Q. You testified in your deposition that you had never observed anything that seemed to be a hostile work environment with Mr. Greisen. Did you make that statement in your deposition?
A. Yes, I did.
Q. Okay. And you had no knowledge of any retaliation by Mr. ...

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