United States District Court, D. Oregon
D. Ostrander and William A. Drew, Elliott, Ostrander &
Preston, PC, Of Attorneys for Plaintiff.
M. Vickers and Blake H. Fry, Mersereau Shannon LLP., Of
Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon, United States District Judge
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.
Renewed Motion for Judgment as a Matter of Law
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).
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.
Hendrixlicensing.com 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).
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)).
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
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
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.
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
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.
Greisen's Statements About Hanken's Management of the
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
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.
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.
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.
Hanken's Actions Against Greisen in 2013
The First Investigation: Allegations Relating to the PIT
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.
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.
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.
The Second Investigation: Allegations of a Hostile Work
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,
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.
The Third Investigation: Allegations of Unauthorized Bank
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
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.
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.
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.
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.
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.
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?
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
Q. And you gave them this photograph, Exhibit 51? This
A. Yes, I did.
Q. Have you seen photographs like that before?
A. Yes, I have.
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.
regarding the second investigation, Hanken admitted the
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
A. Yes, I did.
Q. Okay. And you had no knowledge of any retaliation by Mr.