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Addison v. City of Baker City

United States District Court, D. Oregon

June 29, 2017

CITY OF BAKER CITY, et al., Defendants.

          Clifford S. Davison and Kristen G. Hilton, Sussman Shank LLP, Of Attorneys for Plaintiff.

          Robert E. Franz, Jr., Law Office of Robert E. Franz, Jr., Of Attorneys for Defendants.


          Michael H. Simon, United States District Judge.

         Plaintiff Brian Addison (“Addison”) brings this action against Wyn Lohner (“Lohner”), the Police Chief for the City of Baker City (“Baker City”), in his official and personal capacities, and Baker City, an Oregon municipality (collectively, “Defendants”). Addison asserts the following claims: (1) First Amendment retaliation under 42 U.S.C. § 1983 (“§ 1983”), against Lohner; (2) supervisory liability for First Amendment retaliation under § 1983, against Lohner; (3) municipal liability for First Amendment retaliation under § 1983, against Baker City; (4) intentional interference with economic relations, [1] against Baker City and, in the alternative, against Lohner; (5) defamation, against Baker City and, in the alternative, against Lohner; (6) deprivation of federal procedural due process under § 1983, against both Defendants; and (7) deprivation of federal substantive due process under § 1983, against both Defendants. Before the Court are: (1) Defendants' motion for summary judgment against all claims asserted by Addison; and (2) Addison's cross motion for partial summary judgment against Defendants' Second, Third, Seventh, Tenth, Eighteenth, and Twentieth Affirmative Defenses. For the reasons stated below, Defendants' motion for summary judgment is granted in part and denied in part, and Addison's motion for partial summary judgment is granted.


         A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

         When parties file cross-motions for summary judgment, the court “evaluate[s] each motion separately, giving the non-moving party in each instance the benefit of all reasonable inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006) (quotation marks and citation omitted); see also Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 674 (9th Cir. 2010) (“Cross-motions for summary judgment are evaluated separately under [the] same standard.”). In evaluating the motions, “the court must consider each party's evidence, regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011). “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the non-moving party bears the burden of designating “specific facts demonstrating the existence of genuine issues for trial.” Id. “This burden is not a light one.” Id. The Supreme Court has directed that in such a situation, the non-moving party must do more than raise a “metaphysical doubt” as to the material facts at issue. Matsushita, 475 U.S. at 586.


         From 2006 to 2008, Addison worked as a reporter at the Record-Courier, a newspaper in Baker City. On March 6, 2008, Addison wrote an editorial published in the Record-Courier titled “How About a Favorable Interpretation of the 4th Amendment.” ECF 52-2 at 17. In this editorial, Addison commented on the “weakening” of the Fourth Amendment, particularly through the official use by the police of canine units. In the editorial, Addison wrote that the Baker City Police Canine Drug Enforcement Unit “patrolled” the Baker City High School gymnasium during half time of a high school basketball tournament, in what Addison stated was a violation of the basketball game attendees' rights under the Fourth Amendment.

         The Baker City Police Chief, Lohner, read the editorial and was upset that the community might think the Baker City Police Department (“BCPD”) was using its new canine unit to violate people's constitutional rights. Lohner telephoned the publisher of the Record-Courier, Debbie Schoeningh, to express his displeasure with the editorial. Although the parties dispute whether Lohner demanded a meeting or Schoeningh suggested one, it is undisputed that after the editorial was published, Lohner met with Schoeningh and Addison. At this meeting, Lohner expressed his disagreement with the conclusion that the BCPD violated the Fourth Amendment. He also threatened to stop providing weekly articles to the newspaper and questioned the integrity of the newspaper for publishing the editorial.

         On June 5, 2008, the Record-Courier fired Addison. At the time of his termination, Addison argued with Greg Brinton (“Brinton”), the owner of the Record-Courier. Addison also went to the workplace of Brinton's wife, Patricia Brinton, to discuss Addison's termination with her because she recently had been involved in a personnel decision at the newspaper involving Addison. Patricia Brinton was not in the office at the time of Addison's visit. Addison also tore a book that Schoeningh had given him, put it in a plastic bag, and hung it on the rearview mirror of Schoeningh's car. On June 6, 2008, Addison returned to the Record-Courier offices, perhaps to retrieve his final paycheck. The parties dispute Addison's demeanor on both June 5th and June 6th and whether he banged on the doors and raised his voice.

         On June 6, the police were called. At the suggestion of Baker City Officer Wayne Chastain, that officer issued a stalking complaint against Addison. Officer Chastain also was the police officer who had brought the canine unit to the high school gymnasium that was the subject of Addison's editorial on March 6, 2008.

         On or about June 11, 2016, the state court held a hearing on the stalking complaint filed against Addison. Brinton testified that he did not feel threatened by Addison. Schoeningh testified that she did not have anything to add to Brinton's testimony. The state court judge dismissed the stalking complaint. Schoeningh later testified in her deposition that she did not recall hearing any threatening language from Addison.

         When Lohner heard about the argument involving Addison at the Record-Courier, he instructed persons at police dispatch to “flag” Addison's name as a “caution.” This resulted in a notation placed in Addison's “file” that he had “made threats” against Brinton and Schoeningh and challenged Brinton to a fight. From that point forward, whenever a police officer would run a check on Addison's name, the officer would see a warning that Addison has been “flag[ged] as caution, ” as well as those details. This caution was not removed after the state court dismissed the stalking complaint, nor was the fact that the stalking complaint had been dismissed added to the caution's details. The information continued to appear prominently and in more than one location in Addison's electronic record as of at least 2016, when his electronic file was retrieved, printed, and produced during this lawsuit.

         When a caution appears on a person's name in the local law enforcement electronic file, a warning flashes “red” on the dispatch screen. According to Baker City's corporate designee at deposition, this warning is used if someone is “a threat, that could hurt a police officer who didn't know the history of the person.” ECF 63-2 at 62-63. A review of the BCPD records of persons known to be violent towards police officers, however, shows that those persons were not generally flagged with a caution on their file.

         Before the editorial was published, Addison had few interactions with the BCPD. After the editorial was published in March 2008, Addison had significantly increased personal contacts with the Baker City police. These included documented incidents on April 22, 2008, January 8, 2009, May 21, 2009, January 18, 2010, February 14, 2010, March 14, 2010, September 11, 2012, April 25, 2013, May 9, 2013, May 25, 2013, August 3, 2013, September 2, 2013, September 18, 2013, June 1, 2014, and June 7, 2014, most of which resulted only in “warning” tickets being issued to Addison. Addison testified that in addition to the contacts that were documented, there were more undocumented contacts that resulted in informal warnings.

         In 2010, Addison left Baker City. He returned in 2012. On June 1, 2014, Addison had a contact with Baker City Police Officer (now Lieutenant) Dustin Newman. The parties dispute the details of that interaction. Lohner testified that at the time, Officer Newman reported that he “had a guy go completely off on me” at a traffic stop, and Officer Newman identified that “guy” as Addison. Newman also submitted a declaration, describing the traffic stop and stating that Addison was swearing and yelling, even though Newman had only given Addison a “warning” ticket. Addison testified that he did not lose his temper or yell at Newman during the traffic stop.

         At the time when Officer Newman stopped Addison, Addison was working as a reporter for the Baker County Press. The publisher of that newspaper was Kerry McQuisten, who knows Lohner. On June 2, 2014, the day after the traffic stop, Lohner emailed McQuisten and asked her to meet with him so he could tell her about an “incident” that occurred. In an email on June 3, 2014, Lohner explained to McQuisten that the incident involved Addison being stopped by a police officer and “it didn't go well.” Lohner testified in deposition that when he and McQuisten met, he described the traffic incident as it was reported to him by Officer Newman. Lohner stated that he conveyed this information to Addison's private employer at the time because Lohner believed it was an issue of “community safety.”

         In August 2014, New Directions Behavioral Health and Wellness (“New Directions”) hired Addison, who has a degree in psychology. On November 3, 2014, Addison gave an interview to the Baker City Herald about his work with New Directions, its “supported employment program” for its clients, and Addison's efforts to encourage participation by more employers. Addison also described a speech that he gave at a Baker City Council meeting. On November 10, 2014, the Herald published an article about New Directions based on Addison's interview.

         Addison spoke with the Herald without anyone else present from New Directions. Addison believed that would not be a problem. Sheri Selander, the CEO of New Directions, however, believed that she had made it clear to Addison that she had to be present for the interview and believed that Addison was directly insubordinate by handling the interview alone. Selander wanted to read the article before deciding on how to handle Addison's insubordination. On November 12, 2014, two days after the article was published in the Herald, New Directions placed Addison on a 30-day work plan. Under the terms of this plan, there were supervisor meetings scheduled for each Monday, starting November 17, 2014. The plan also noted that:

You [Addison] are a valued member of our Treatment Team and you bring many assets to our program. It is our belief that you are committed to this program and want to do the best job possible. Therefore, it is the intent of this Plan, to specifically state what is expected of you, so that you use it as a tool in order to improve your skills and remain within the scope of service you are to provide.

ECF 63-1 at 75. The plan further stated that it could be extended, as needed. At the time Addison was given the 30-day work plan, Addison was told that his employment would continue during the 30-day plan period, as long as Addison remained in compliance with the terms of the work plan. Addison's supervisor testified that she does not recall that Addison did anything to violate the terms of his work plan before he was terminated two days later on November 14, 2014.

         Lohner also saw the November 10, 2014 article and learned that Addison was working at New Directions. Lohner testified that he “had a concern for the vulnerable population that [Addison] would work with.” Thus, after reading the article, at approximately 3:10 p.m. on November 12, Lohner sent an email to Marji Lind, the Clinical Director for New Directions. Lohner served on a mental health advisory board with Lind. Lohner's email stated: “I saw one of your recent hires and was curious if you do internal background investigations or if you hire them out?” ECF 49 at 26. On November 13, 2014, at approximately 7:34 a.m., Lind responded that New Directions obtains internal background checks, including Department of Homeland Security checks. She then asked: “[S]omething we should know???” Id. at 27. Lohner responded at approximately 7:50 a.m., “Give me a call . . .” ECF 52-2 at 33 (ellipses in original).

         Telephone records show that Lind and Lohner spoke twice on November 13. The first call began at approximately 8:32 a.m., forty minutes after Lohner sent his email. That call lasted five minutes. The second call began at 1:39 p.m. and lasted seven minutes. Lohner and Lind gave conflicting testimony regarding the content of those two telephone calls, and Lohner testified that he does not even recall having the second conversation with Lind.

         According to Lohner, he warned Lind that Addison had “mood swings” and described the “caution” that Lohner had placed in Addison's local law enforcement file. Lohner also informed Lind that Addison had an incident with a former employer that “did not go well.” Lohner discussed with Lind Addison's volatile traffic stop with Officer Newman. Lohner admits, however, that he did not inform Lind that the state court had dismissed the stalking complaint that had been filed against Addison relating to the incident with the former employer Lohner had described. Lohner also suggested to Lind that employers generally can do a “local records check” on a new hire to “see what types of contacts or what types of interactions” the new hire may have “had in the community specifically with the police or with the sheriff's office.” ECF 53-1 at 34-37. Lohner states that he did not explicitly suggest that Lind look up Addison's local report.

         Lind, on the other hand, testified that Addison's name never came up during her telephone conversations with Lohner on November 13. ECF 50 at 53. She testified that, in response to her conversation with Lohner, she contacted Karen Hendricks in the Human Resources department of New Directions. Lind said that she asked Hendricks about changing company policy generally in order to obtain local sheriff's office reports on all new hires. She adds that she discussed several employees with Hendricks and that “possibly” Addison's name came up in that context. ECF 63-1 at 58-59. Hendricks, however, testified that it was Selander, not Lind, who spoke with her on November 13 and that Selander instructed Hendricks to obtain a report about Addison from the local sheriff's office because “[t]here might be something of concern.” ECF 63-1 at 20-21. At that time, there was no discussion about changing New Directions' policy to obtain these types of background reports on all new hires. Id. at 22. There also was no discussion about any other employee-the focus was solely on Addison. For purposes of deciding Defendants' motion for summary judgment, the Court views the facts in the light most favorable to Addison, and considers the recitation of these events as described by Lohner and Hendricks, and not as described by Lind.

         On the morning after Lohner and Lind's telephone conversations, Hendricks obtained the local law enforcement file on Addison from Baker County Consolidated Dispatch (“BCCD”). ECF 52-2 at 35-41. This file included Addison's two-page “Fact File” and five-page “Incident Report” relating to Addison's 2008 stalking complaint. The Court refers to the combined file as the “Seven-Page File.”

         The Fact File on Addison obtained by New Directions was missing information that local law enforcement “fact files” generated from BCCD generally contain, including that the police-issued stalking complaint was only valid for four days, through June 10, 2008. Compare ECF 49 at 15-16 (Addison's Fact File obtained by New Directions) with ECF 52-2 at 18-20 (Addison's Fact File obtained from BCCD by subpoena). It also did not contain information that the state court had long ago dismissed the stalking complaint. A few hours later, New Directions terminated Addison's employment.

         BCCD acts as the records custodian for both the Baker County Sheriff's Office and the BCPD. Margaret Sackos at BCCD was in charge of records during the relevant period. She testified that a general “overview” fact file report from BCCD costs $10 and a detailed “incident” report, such as the Incident Report on the 2008 stalking complaint, requires a separate request and an additional $17 fee. When such files are requested, all fees are recorded in BCCD's receipt book.

         The parties dispute whether BCPD was involved in providing Addison's Seven-Page File to New Directions. Hendricks testified that she paid only $10, but yet she received both Addison's overview Fact File and the Incident Report on the 2008 stalking complaint. See ECF 49 at 15-21. Additionally, Sackos testified that she and her co-worker, April Bower, are the only two employees at BCCD who provide fact files and incident reports and that neither of them provided Addison's Seven-Page File to anyone at New Directions. Sackos also testified that the format of Addison's Fact File that New Directions obtained was different from the format of fact files the BCCD generates and provides. Sackos also could not explain why certain information was included on the Fact File that New Directions had, while other information was not included. In short, Sackos did not know where the Seven-Page File that New Directions received came from, but it did not appear to be from BCCD. In addition, the BCCD receipt book does not contain any record that New Directions-or anyone else for that matter-had requested Addison's Seven-Page File in November 2014. Moreover, an independent contractor who designed both the dispatch software and the templates used by BCCD to generate fact files, and other reports based on BCCD data, testified that it appears to him that the Seven-Page File obtained by New Directions was, in fact, generated at the BCPD, and not at the BCCD.

         Lohner testified at deposition that he has concerns about Addison working with “vulnerable populations.” Lohner also testified that he intends to continue to make similar calls to Addison's future employers. Lohner, however, could not recall ever making any calls to any other employer in a similar situation involving anyone other than Addison. Lohner added that he did recall a time when he contacted an employer after a forklift driver was pulled over for driving under the influence on his way to work, explaining that Lohner did not want a person under the influence operating a forklift.


         A. Defendants' Motion For Summary Judgment

         Defendants move against all seven claims asserted by Addison. The Court addresses each claim in turn.

         1. First Claim: First Amendment Retaliation, against Lohner

         To prevail on his claim for First Amendment retaliation, Addison must prove that:

(1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action.

Mulligan v. Nichols, 835 F.3d 983, 988 (9th Cir. 2016) (quotation marks omitted).

         Defendants do not dispute that Addison engaged in constitutionally-protected activity, nor do they appear to dispute at this stage that there is at least a genuine issue of material fact regarding whether there is a causal relationship between Addison's protected speech and Lohner's challenged conduct. Instead, Defendants argue that Addison was not subjected to adverse action, as that term is used in the context of a claim of First Amendment retaliation. In support of this conclusion, Defendants argue: (1) Lohner's conduct itself was protected speech and is therefore subject to a “high bar” in order to be considered adverse action, and because Lohner's activity was lawful, it does not meet that high bar; and (2) Addison was not deprived of a government job or benefit. Defendants also argue that Lohner is protected under the doctrine of qualified immunity.

         a. Adverse action

         Defendants rely on Mulligan and an out-of-circuit case to argue that Lohner's actions cannot constitute First Amendment retaliation. Mulligan, however, does not show that Addison's claim is foreclosed as a matter of law. In Mulligan, the Ninth Circuit stated:

Retaliation claims involving government speech warrant a cautious approach by courts. Restricting the ability of government decisionmakers to engage in speech risks interfering with their ability to effectively perform their duties. It also ignores the competing First Amendment rights of the officials themselves. . . .
In accordance with these principles, we have set a high bar when analyzing whether speech by government officials is sufficiently adverse to give rise to a First Amendment retaliation claim.

Mulligan, 835 F.3d at 989.

         Mulligan involved a plaintiff who had filed an administrative claim against certain police officers alleging that the officers had acted unlawfully. Id. at 986. In response, the police officers' union made public statements accusing the plaintiff of being a drug abuser and having acted aggressively against the officers. Id. As the Ninth Circuit explained, the issue in Mulligan was whether the First Amendment protection of citizens against government retaliation for speech “also requires those officials to remain silent when accused of misconduct, lest they risk liability for unlawful retaliation. We conclude that it does not.” Id. (emphasis added). That is not the situation here.

         The alleged retaliatory speech by Lohner in this case was not his public response to a claim by Addison of official misconduct. Instead, Lohner spoke privately with two of Addison's employers about Addison. Lohner states that his purpose for having those private conversations was based on his general concern for community safety. At his deposition, however, Lohner could not recall ever calling another employer under similar circumstances. The only other instance of calling an employer Lohner could recall was calling the employer of the forklift operator on the same day that the forklift operator was pulled over for driving an automobile under the influence while on his way to work. New Directions terminated Addison's employment shortly after Lind spoke with Lohner about Addison.

         A reasonable inference from the facts in this case is that Lohner's objective in making private comments about Addison to his employers was to punish Addison for his past criticism of Defendants. In contrast, in Mulligan the defendants publicly responded to accusations against the police officers made by the plaintiff in a filed complaint. The loss of the plaintiff's job in Mulligan was only an incidental consequence of the media coverage of the entire dispute. Additionally, unlike Lohner in the present case, the defendants in Mulligan did not speak directly to the plaintiff's employer. In Mulligan, the plaintiff's employer learned of the information only through media coverage of the public dispute. Thus, the facts of the pending case are quite different from the facts in Mulligan, and the issues here do not fall within the Ninth Circuit's response in Mulligan to the question of whether a government employee must remain silent when accused of official misconduct.

         The question remains, however, whether First Amendment retaliation can ever be based upon the adverse consequence of a plaintiff's employment being terminated by a private employer. The Ninth Circuit noted in Mulligan that “[o]rdinarily, the adverse retaliatory actions complained of by plaintiffs are ‘exercise[s] of governmental power that are regulatory, proscriptive, or compulsory in nature and have the effect of punishing someone for his or her speech.'” Id. at 988 (emphasis added) (second alteration in original) (quoting Blair v. Bethel Sch. Dist., 608 F.3d 540, 544 (9th Cir. 2010)). Generally, a defendant must “make [a] decision or take [a] state action affecting [the plaintiff's] rights, benefits, relationship or status with the state” or the plaintiff must show “the loss of a valuable governmental benefit or privilege.” Id. at 989 (quotation marks omitted). The Ninth Circuit clarified, however, that its precedents do not “stand for the proposition that speech by government officials can never give rise to a claim of First Amendment retaliation in the absence of a loss of tangible rights or government benefits.” Id. at 989 n.5 (emphasis in original) (citing Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003) and White v. Lee, 227 F.3d 1214 (9th Cir. 2000)).

         In Coszalter v. City of Salem, the Ninth Circuit held that there is not “an exclusive, category-based limitation on the kind of retaliatory action that is actionable under the First Amendment, ” and that case does not allow the government “to take severe retaliatory actions- such as . . . engaging in campaigns of harassment and humiliation-because those actions do not result in the loss of a valuable governmental benefit or privilege.” 320 F.3d at 975-76. Indeed, the Ninth Circuit has recognized that “[i]nformal measures, such as ‘the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation, ' can violate the First Amendment also.” White, 227 F.3d at 1228 (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963)).

         Viewing the facts in the light most favorable to Addison, Lohner called a representative of Addison's private employer, Lind, and discussed Addison's private and confidential information. Lohner warned Lind of Addison's “mood swings, ” described the “caution” flag that Lohner had placed in Addison's Fact File, informed Lind that Addison had an “incident” with a former employer, without mentioning that the stalking complaint had been dismissed by the state court, described Addison's purported “erratic” behavior during a traffic stop as relayed to Lohner from another police officer, and noted that there are records relating to local incidents at the sheriff's office. Although Lohner did not direct Lind to get the Seven-Page File on Addison, Lohner described that there was an interaction with Addison and his former employer that “did not go well, ” and Lohner informed Lind that there were records that she could get on this issue.

         Lohner also discussed similarly private information with McQuisten, a representative from another of Addison's former employers. There also is evidence that the BCPD may have been involved in providing the Seven-Page File on Addison to his then-employer, New Directions, which contained allegedly misleading negative information about Addison. This evidence is sufficient to create genuine issues of material fact regarding (1) whether Lohner engaged in retaliatory conduct against Addison; and (2) whether a person of ordinary firmness would be chilled from continuing to engage in protected activity. In short, it is sufficient to create a jury question on the issue of adverse action.

         b. Causal connection

         Although Defendants do not directly argue against there being sufficient evidence of a causal connection between Addison's protected speech and Lohner's alleged retaliation, Defendants indirectly make such an argument. Accordingly, the Court will address this element. Addison's alleged protected activity was the editorial that he wrote for the Record-Courier in 2008, criticizing Baker City's police department.[2] The alleged retaliatory conduct began shortly thereafter, but only conduct from October 29, 2013, is within the statute of ...

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