United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATIONS
Yim You United States Magistrate Judge
Erick Holsey (“Holsey”) has brought suit against
the Clatskanie Rural Fire Protection District
(“CRFPD”) and a Human Resources consultant
employed by CRFPD, Richard Stellner (“Stellner”).
Holsey's claims turn on the process used to deny him the
position of Assistant Fire Chief in late 2015 and early 2016.
He alleges two claims against both defendants under 42 USC
§ 1983, one for injunctive relief (First Claim) and one
for damages (Second Claim), as well as a claim against CRFPD
for violation of Oregon's veterans' preference laws
under ORS 408.225-.237 (Third Claim). Holsey seeks past and
future economic damages of at least $5, 000 per month, $300,
000 in non-economic damages, and “deterrence
damages” in an amount to be proven at trial. Compl. 12,
court has federal question jurisdiction over Holsey's two
constitutional claims under 28 USC § 1331, and
supplemental jurisdiction over Holsey's statutory claim
pursuant to 28 USC § 1367(a).
have filed a Motion for Summary Judgment (ECF #11), seeking
summary judgment against all three of Holsey's claims.
For the reasons that follow, the motion should be granted in
part and denied in part.
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.”
FRCP 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).
“When judging the evidence at the summary judgment
stage, the district court is not to make credibility
determinations or weigh conflicting evidence, and is required
to draw all inferences in a light most favorable to the
nonmoving party.” Musick v. Burke, 913 F.2d
1390, 1394 (9th Cir. 1990); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)
(“The evidence of the nonmovant is to be believed, and
all justifiable inferences are to be drawn in his
favor.”). 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, 477 U.S. at 252, 255.
“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).
is a service-connected disabled veteran under ORS 408.225(c).
Joint Statement of Facts, ¶ 4, ECF #15. CRFPD is a
public employer in accordance with ORS 408.225(e).
Id. ¶ 3. Stellner is a human resources
consultant who was hired by CRFPD. Id. ¶ 2.
about November 20, 2015, CRFPD requested applications for the
position of Assistant Fire Chief from internal candidates.
Id. ¶ 7. Candidates were asked to submit
written applications, answer two essay questions, and
participate in panel interviews. Declaration of Richard
Stellner (“Stellner Decl.”), ¶ 14, ECF #12.
internal candidates applied: Holsey and his brother, Bruce
Holsey. Id. ¶ 5.
about December 4, 2015, Holsey confirmed with CRFPD Fire
Chief Steven Sharek (“Sharek”) that the
application process would include the veterans'
preference. Response, Ex. 1 (Decl. of Sean Riddell
(“Riddell Decl.”), Ex. 2), ECF #14-1. That same
day, Sharek instructed Stellner to ensure that the
application process met “all requirements” of the
veterans' preference. Riddell Decl., Ex. 3, ECF #14-1.
drafted a document that set forth the hiring process, called
“Management Recruitment Process.” Joint Statement
¶ 9, ECF #15. There were four drafts of this document,
and the fourth and final draft, Draft D, was the draft used
in the process. Id.; Stellner Decl., Ex. 2, ECF #12.
third draft, Draft C, involved a 90-point system with
veterans' preference points worth an additional 10
points, resulting in a possible total of 100 points. Joint
Statement ¶ 11. When the applications were initially
received, the Draft C scoring system was used, and Holsey
received a score of 63 out of 90, while his brother received
a score of 61 out of 90. Id. ¶ 12; Riddell
Decl., Ex. 4, ECF #14-1.
January 13, 2016,  Stellner informed CRFPD board members of
the applicants' initial scores. Joint Statement ¶
13. Board members raised concerns about the Draft C method of
scoring. Stellner Decl. ¶ 7, ECF #12. Jim Gibson
(“Gibson”) and John Moore (“Moore”)
were two of those board members. Id. ¶ 14.
Gibson and Moore exchanged emails with Stellner about the
scoring method. Riddell Decl., Ex. 6, at 3, ECF #14-1. Gibson
expressed his preference for a 100-point scoring system.
Id. Moore wrote that, although his father is a
disabled veteran, he believed that applying the veterans'
preference was “preferential treatment” and
“[didn't] see that as necessary.”
Id. Moore added that, if the candidate had been an
officer in the military, that experience could be viewed as a
leadership position, but otherwise he would “argue
favoritism.” Id. Moore testified at his
deposition that “all things being equal, ” a
disabled veteran was not more attractive than a non-disabled
one, and military experience did not make someone a more
attractive candidate. Moore Deposition 12, ECF #22, at 16.
Moore also expressed his opinion that the veterans'
preference laws should not have been applied to the Assistant
Fire Chief application process. Id. at 12.
reviewed Bureau of Labor and Industry (“BOLI”)
materials and concluded that a veterans' preference point
meant a percentage point. Stellner Decl. ¶¶ 7, 8.
In his view, converting to a 100-point system meant that
adding 10 points for a veterans' ...