United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE.
Marc Kardell brings this First Amendment action against his
former employer Lane County, Lane County Administrator Liane
Richardson, and County Counsel Alex Gardner. The Ninth
Circuit previously reversed in part my opinion granting
defendants' motions for summary judgment. On remand,
defendants again move for summary judgment. Because the Ninth
Circuit found that Kardell presented enough evidence that,
when viewed in the light most favorable to him, suggests he
was retaliated against following a complaint to Human
Resources (HR) about Richardson's misuse of county
resources, the motion is DENIED.
court must grant summary judgment if there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue is
“genuine” if a reasonable jury could return a
verdict in favor of the non-moving party. Rivera v.
Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.
2005) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). A fact is “material” if it
could affect the outcome of the case. Id. The court
reviews evidence and draws inferences in the light most
favorable to the non-moving party. Miller v. Glenn Miller
Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting
Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). When
the moving party has met its burden, the non-moving party
must present “specific facts showing that there is a
genuine issue for trial.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (quoting
alleges he suffered retaliation after exercising his First
Amendment rights. Kardell must establish three elements: (1)
that he spoke on a matter of public concern; (2) that he
spoke as a private citizen and not as a public employee; and
(3) that his protected speech was a substantial or motivating
factor in the defendant's adverse employment actions.
Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).
is “a matter of public concern when it can fairly be
considered to relate to ‘any matter of political,
social, or other concern to the community.'”
Johnson v. Multnomah Cnty., 48 F.3d 420, 422 (9th
Cir. 1995) (quoting Connick v. Myers, 461 U.S. 138,
146 (1983)). Speech alleging that public officials are not
discharging government responsibilities, or are engaged in
wrongdoing or breaches of the public trust qualifies as a
matter of public concern. Connick, 461 U.S. at 148.
Speech is not of public concern when it addresses
“individual personnel disputes and grievances.”
Coszalter v. City of Salem, 320 F.3d 968, 973 (9th
Cir. 2003) (citation omitted).
Ninth Circuit found that Kardell's declaration was
sufficient to establish that he spoke on a matter of public
concern when he states that he went to HR to voice his belief
that Richardson “was spending money to conduct outside
investigations of meritless allegations.”The defense argues
that Kardell's concern was not truly public in nature,
but rather focused on whether he himself was under
investigation and why he had been passed over for a
promotion. Kardell's counsel confirmed at oral argument
that he did not seek to recover for any speech about his own
alleged investigation. Although Kardell's declaration is
enough to survive summary judgment, the court may revisit
this issue based on the testimony at trial. See Eng v.
Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009) (whether
speech is truly a matter of public concern “is purely a
question of law.”).
to the other Eng factors, the defense argues that
Kardell spoke as a private citizen rather than a public
employee and that Kardell's comments to HR were not a
substantial or motivating factor that led to an adverse
employment action. Eng v. Cooley, 552 F.3d 1062,
1070 (9th Cir. 2009).
argues the Ninth Circuit implicitly concluded he spoke as a
private citizen. This argument is meritless. Although I
previously concluded “Kardell wrote the email not as a
concerned citizen, but in his role as a public employee,
” the Ninth Circuit affirmed my conclusion that
Kardell's April 2012 email was not a matter of public
concern. Additionally, the Ninth Circuit explicitly stated
that on remand, this court could evaluate the additional
Eng factors as well as the application of qualified
are made in the speaker's capacity as citizen if the
speaker had no official duty to make the questioned
statements, or if the speech was not the product of
performing the tasks the employee was paid to perform.”
Eng, 552 F.3d at 1071 (internal quotations omitted).
Kardell states HR was not in his chain of command and he knew
of no duty he had to raise issues regarding Richardson's
investigations with HR. Kardell Decl. ¶ 68. If in fact
Kardell spoke to HR about his concerns that Richardson was
“spending money to conduct outside investigations of
meritless allegations, ” Kardell spoke as a citizen and
not a public employee. As with the other elements and
qualified immunity, much depends on what Kardell actually
said to HR and what, if anything, HR relayed to others about
Kardell's complaints. While legitimate complaints about
waste or mismanagement of funds could arise from a public
employee's role as a concerned citizen, complaints to HR
about one's own performance or being passed over for a
promotion would arise solely from one's role as a public
employee. At this stage, Kardell's declaration nudges the
scale ever-so-slightly to the side of a concerned citizen.
must next establish that his speech to HR was a substantial
or motivating factor in any adverse employment decision.
Eng. 552 F.3d at 1070. Considering the hurdle
Kardell faces here, the parties spent little ink briefing
this issue. Gardner's motion simply refers the court to
his original motion. But that motion dealt exclusively with
Kardell's April email to the board. Despite little
evidence that HR ever relayed any of Kardell's complaints
to anyone, I conclude defendants failed to meet their burden
on this element.
argue that the decision to lay Kardell off was made because
of office reorganization decisions related to a coming budget
deficit. There is strong evidence supporting this theory.
Kardell, however, presents evidence that Richardson's own
office grew, in number of employees and in available funds,
the year after Kardell was laid off.
theory appears to be that HR informed Richardson of
Kardell's complaints. In retaliation, Richardson had
Gardner reorganize the office to get rid of Kardell. One
assumes Gardner went along with this scheme simply to keep a
powerful ally happy. Although this appears a stretch, there
is just enough for Kardell to avoid summary judgment. In
reading the emails from the relevant time period, it appears
Richardson, Gardner, and Dingle were growing ever more tired
of Kardell's ability to work with others and to follow
instructions. Kardell's email to the board seemed to be
the last straw. In that email, Kardell publicly criticized
not only his boss's decision on a staffing issue, but
challenged Gardner's general knowledge of land use issues
faced by the county. But defendants do not argue the email
led to Kardell's layoff. And although defendants note
that many county agencies refused to work with Kardell,
Richardson herself informed Gardner not to allow Kardell to
work for those agencies. Under Kardell's theory,
Richardson purposefully diminished Kardell's usefulness
as retaliation for Kardell's comments to HR, as opposed
to any legitimate performance issues. Kardell's case is
strengthened by the fact that his comments to HR, followed by