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Dyer v. Southwest Oregon Community College

United States District Court, D. Oregon, Eugene Division

July 16, 2018

KATHLEEN DYER, an individual, Plaintiff,
SOUTHWEST OREGON COMMUNITY COLLEGE, a municipal corporation and CODY YEAGER, personal capacity. Defendants.



         In this wrongful discharge of employment case, plaintiff Kathleen Dyer sues Southwest Oregon Community College ("SWOCC"), a municipal corporation, as well as Cody Yeager, Dean of Career and Technical Education at SWOCC, in her personal capacity, alleging that defendants violated 42 U.S, C. § 1983 when they terminated plaintiffs employment as a full-time criminal justice instructor at SWOCC. Plaintiff avers that defendants (1) retaliated against her for exercising her First Amendment free speech and free association rights, and (2) deprived her of her Fourteenth Amendment property interest and right to due process, among other federal and state law claims arising from the same nucleus of operative facts.[1] Plaintiff seeks a declaratory judgment that defendants violated her constitutional rights. She asks me to award equitable relief, damages, and attorney's fees.

         Before me is defendants' motion for summary judgment as to plaintiffs § 1983 claims. For the reasons set forth herein, defendant's motion is denied in part, as to plaintiffs First Amendment retaliation claims, and granted in part, as to plaintiffs Fourteenth Amendment property interest violation claim.


         Plaintiff was initially hired by SWOCC on December 12, 2014, to serve as the college's sole full-time, tenure-track criminal justice instructor.[2] The Southwest Oregon Community College Federation of Teachers is the union which organizes and represents instructors at SWOCC. See Ds. Ex. 6 at 4. As a SWOCC faculty member, plaintiffs employment contract was governed by the union's collective bargaining agreement with SWOCC. Under the terms of that agreement, all tenure-track appointments are classified as probationary for the first three consecutive years of employment. Id. at 28-29. "At the end of each annual contract the Employer reserves the sole right to renew the tenure track faculty member's contract for another year as it deems appropriate ... ." Id. at 28.

         Plaintiff began teaching college courses at SWOCC on January 2, 2015, Pl.'s 2d Am'd Compl. ¶ 19, In late June or early July of 2015, the former Dean of Career and Technical Education, plaintiffs supervisor, retired, Ds.' Ex, 1 at 5, That position was subsequently filled by Cody Yeager, a defendant in this action. Yeager's first day as Dean of Career and Technical Education was July 27, 2015. Pl.'s Ex. D at 4. On August 4, Yeager had an initial meeting with plaintiff and the exiting Dean. Id. On August 15, plaintiff hosted Yeager for dinner at plaintiffs home. Id. Plaintiffs husband and one other professional colleague were also present at the August 15 dinner. Plaintiff alleges several state law claims originating from comments by and interactions with Yeager at the August 15 dinner. See Pl.'s 2d Am'd Compl. ¶¶ 80-97. In or around September 2015, plaintiff filed complaints with SWOCC's human resources manager regarding alleged unwelcome sexual advances by Yeager. Id. at ¶ 31.

         On September 1, 2015, plaintiff entered into a new contract with SWOCC for the 2015-2016 academic year. Pl.'s Ex. I. The dates of the contract spanned September 1, 2015 through June 10, 2016. Id. The contract classified plaintiffs appointment as "probationary, tenure track -first year." Id.

         On October 6, 2015, plaintiff attended a monthly community criminal justice advisory meeting. Pl.'s Ex. H at 2. The so-called "chiefs meetings" are monthly lunches attended by local law enforcement personnel, including the police chiefs of Coos Bay and surrounding communities. See Pl.'s Ex. H, Plaintiff had previously attended chiefs meetings in January and June 2015, pursuant to expectations that she attend in her capacity as SWOCC's lead criminal justice instructor, Id. at 1. Plaintiff reported at deposition that she attended chiefs meetings approximately twice a year: "I was required to." Pl.'s Ex. B at 9. Between September 28-29, 2015, plaintiff and Yeager exchanged emails regarding the nature of the chiefs meetings and confirming plaintiffs attendance at the October 6 meeting. See Pl.'s Ex. H. In that correspondence, Yeager expressed concern that an advisory committee to SWOCC's criminal justice program should include representation from across the criminal justice spectrum, rather than solely law enforcement. Id. at 2. Plaintiff responded via email that the chiefs meetings are "a pretty comprehensive cross section." Id. However, in deposition, plaintiff explained that she and the prior Dean of Career and Technical Education had discussed how the chiefs meetings were "too law enforcement oriented .... and that we would work on it." Pl.'s Ex, B at 9.

         In January 2016, plaintiffs tenure committee conducted its first review of plaintiff. Pl.'s 2d Am'd Compl. ¶ 40. The committee recommended "retention without reservation."[3] Id. On February 15, 2016, a S WOCC student then enrolled in one of plaintiff s courses approached plaintiff regarding criminal charges he was facing following an arrest. Pl.'s Ex. J at 1; Ds.' Ex. 5 at 1; see also Pl.'s 2d Am'd Compl, ¶ 53. Using her SWOCC office phone and while the student was present in plaintiffs office at SWOCC, plaintiff allegedly called her colleague, Paul Frasier, an adjunct criminal justice instructors at SWOCC and a local District Attorney. Pl.'s Ex. J at 1; Ds.' Ex. 5 at 1. Plaintiff states that she asked Frasier to look up the student's arraignment date, which Frasier agreed to do. Pl.'s 2d Am'd Compl. ¶ 54. The Notice of Termination letter from SWOCC to plaintiff states that plaintiff left a voice message for Frasier "asking him to look into it." Pl.'s Ex. J at 1; Ds.' Ex. 5 at 1.

         Thereafter, [4] plaintiff reached out to Yeager to inquire about whether it would be appropriate for plaintiff to represent the student, pro bono, in the criminal matter. Pl.'s Ex C at 3. Yeager reports that she responded that it would not be appropriate and would constitute a conflict of interest because "as a faculty member that would put her and the college in an adversarial relationship with the District Attorney's Office." Id. In deposition, Yeager further averred that she told plaintiff a conflict of interest would exist if plaintiff were to represent "[a]ny SWOCC student," not only students currently enrolled in plaintiffs courses. Id. at 3-4. Yeager told plaintiff that she would also check with the Vice President of Instruction. Id. at 3. Allegedly Vice President Ross Tomlin agreed with Yeager's assessment that plaintiffs representation of students would be a conflict of interest; Yeager says that she communicated Vice President Tomlin's opinion to plaintiff the same day that Yeager spoke with Tomlin regarding the matter. Id. at 4. Plaintiff declined to represent the student facing criminal charges who had requested plaintiffs assistance. Pl.'s 2d Am'd Compl, ¶ 59.

         On March 8, 2016, Yeager issued a Notice of Performance Analysis to plaintiff via email on a day when plaintiff was out of the office. Ds.' Mot. Part. Summ. J. 4; Ds.' Ex. 1, 6. The Notice elaborated two counts of complaints against plaintiff: (1) use of foul language, and (2) plaintiffs telephone call to Frasier regarding the student who had come to plaintiff looking for help with navigating his criminal charges.[5] Ds.' Mot. Part. Summ. J. 4; Ds.' Ex. 1, 7. Allegedly Frasier had interpreted plaintiffs call regarding the student's arraignment date as "a request to intervene in his capacity as a District Attorney on behalf of a student[.]" Ds.' Mot. Part. Summ. J. 4. Plaintiff reports that she was very surprised by the occasion and content of the Notice: "[T]here was no basis for it. I had never heard any of these allegations brought to me ever. No complaints, nothing. It was just pure speculation, and I was astounded."[6] Ds.' Ex. 1, 7.

         On March 16 or 17, 2016, plaintiff met with Yeager and Human Resources Manager Matt Gilroy to discuss the Notice of Performance Analysis; the topic of representing students in legal matters arose during that meeting. Pl.'s Ex. C, 4; Pl.'s Ex. B, 5. HR Manager Gilroy "advised [plaintiff] not to represent any current students, . . . Students that are in her current classes." Pl.'s Ex A, 4. In deposition, Gilroy explained that SWOCC had a policy "concern about possible preferential treatment, . . giving those students something she wasn't providing other students[.]" Id. at 5. Gilroy confirmed that he would have permitted plaintiff to represent students who had been previously enrolled in her courses and students who might eventually enroll in plaintiffs courses. Id. at 6. Gilroy allegedly suggested the following three restrictions on plaintiffs prospective representation of SWOCC students: she could only provide such representation if she did so (1) pro bono, (2) on her own time, and (3) without utilizing SWOCC resources, [7] Pl.'s Ex, B, 5-6; Pl.'s 2d Am'd Compl. ¶ 56. Yeager was present at this meeting and does not appear to have contested Gilroy's directive.[8] Pl.'s Ex. B at 6. Plaintiff avers that no other SWOCC supervisor or administrator countered or withdrew Gilroy's directive to plaintiff regarding representation of students. P.'s 2d Am'd Compl. ¶ 58.

         Sometime in late March or early April 2016, two of plaintiff s students came to class and explained to plaintiff, in the presence of attending classmates, that they and other SWOCC students had been arrested and charged as Minors in Possession ("MIP") while at a party at a private residence the previous weekend. P.'s Ex B at 2. The two students went on to explain that the circumstances of the arrest led them to believe the police had violated Fourth Amendment constitutional protections governing search and seizure.[9] Id. at 3-4. Plaintiff was clear with the two students enrolled in plaintiffs class that she would not represent them. Id. When the two students asked if she would represent other SWOCC students involved in the MIP incident, plaintiff reports that she responded, "If they approach me, I'll talk to them .... I don't know. It depends on their attitude, It depends." Id. at 4.

         A day or two later, plaintiff was approached by a young man as she was getting in her car at SWOCC to go home after work. Id. at 4-5. The young man introduced himself as one of six SWOCC students not enrolled in plaintiffs course who had been arrested on MIP charges. Id. He asked if plaintiff would meet with them to discuss the case. Id. Plaintiff reports that she agreed to meet, but emphasized, "we're going to do it off campus and we're going to do it after work or on a Saturday afternoon," per the directive of HR Manager Gilroy. Id. at 5.

         Plaintiff met with the six SWOCC students the following day at 5:30pm at Oak Street Park in North Bend, OR. Id; Ds.' Ex. 5, 1; Pl.'s Ex. J, 1. Plaintiff reports that she and the other six students were "huddled together" as they spoke. Ds.' Ex 1, 23. The two students enrolled in plaintiffs course, who had also been arrested and who had originally alerted plaintiff to the arrests, were also at the Park that evening, though they were "on the other end" of the picnic area such that plaintiff would have had to raise her voice "considerably" above "normal conversation tone" for them to hear. Id. at 23-24. Plaintiff reports, "I don't know what they heard because they never told me what they heard, But these were their friends and they all hung out together[.]" Id. at 24.

         Plaintiff first appeared in court on behalf of the six SWOCC students not enrolled in her course on April 25, 2016. P.'s Ex. B at 5. Approximately five days before the case, plaintiff approached the judge presiding over the case in order to get the judge's input on whether a conflict of interest existed. Id. at 7. The judge allegedly found that plaintiffs representation of the students posed no conflict of interest. Id. Plaintiff explains "I thought she [the judge] was the appropriate person to make a determination as to whether or not there was a conflict of interest.... And she determined there was no conflict of interest so 1 went forward." Id.

         On May 3, 2016, Paul Frasier, local District Attorney and adjunct SWOCC criminal justice instructor, sent an email titled "Dyer Investigation" to Yeager and Gilroy, regarding plaintiffs representation of the six SWOCC students who had been charged with MIPs. Ds.' Ex. 2. Frasier specifically detailed concerns expressed by the Coos Bay Police Captain regarding plaintiff representation of the students: "He informed me that he felt it was a conflict for her to be in charge of the criminal justice program and then to be representing these students. He was not happy with Ms. Dyer's actions." Id. Frasier also stated in the email that the plaintiff had previously contacted the Police Captain regarding to the case of the previous student, whom plaintiff had declined to represent. Id.

         On May 11, 2016, Frasier submitted a memo to the file of the MIP cases removing himself from prosecution. Ds.' Ex. 3. The reason given in the memo for his removal was "to avoid any appearance of impropriety or conflict" in light of the fact that "the attorney for these defendants is Kathleen Dyer, who is my supervisor at SWOCC where I teach Criminal Justice classes ... ."[10] Id. Frasier assigned a different prosecutor to the case. Id.

         The SWOCC students' trial was held on May 19, 2016, in Coos County Circuit Court. Pl.'s Ex. 1 at 13. Plaintiff represented the six SWOCC students not enrolled in her course, whom she had met with at Oak Street Park. Pl.'s 2d Am'd Compl. ¶ 63; Ds.' Mot. Part. Summ. J. 5. At trial, plaintiff cross-examined the police officers who had arrested the students then on trial. P.'s Ex. B at 11. Plaintiff asked the police officers questions, including whether they had shown the results of the breathalyzer tests to the students who were arrested, whether those results could be corroborated, and why the police had entered the residence without a warrant. Id. at 12; Ds.' Mot. Part. Summ. J. 5. When one of the police officers responded by asking whether plaintiff was questioning the officer's integrity, plaintiff avers that she responded, "I'm questioning how you handled the case, yes." P.'s Ex. B 12.

         The cases against the six SWOCC students whom plaintiff represented were dismissed due to Fourth Amendment violations. Pl.'s 2d Am'd Compl. ¶ 63. The two students then enrolled in plaintiffs course represented themselves pro se, and their cases were also dismissed.[11] Id. According to plaintiff, "the judge agreed with me that there was an egregious Fourth Amendment violation on ail eight cases, and as a result of that[, ] the fruit of the poisonous tree doctrine kicked in and all the charges were dismissed." Pl.'s Ex. B at 7-8.

         On May 24, 2016, SWOCC President Patricia Scott had a meeting with the police chief and police captain "regarding Kate's [plaintiffs] behavior in the courtroom at that trial," Pl.'s Ex, E, 3, This meeting was scheduled by Frasier. Id.

         On June 1, plaintiff attended a monthly chiefs meeting. Prior to the chiefs meeting, Yeager sent Frasier an email about the meeting in which she told Frasier that if he or the police chiefs felt they needed to "bar" plaintiff from the event, they "need not fear any interference from [Yeager] or SWOCC." Pl.'s Ex. C, 7-8. The plaintiff was not barred from the June 1 chiefs meeting, and the meeting was quite tense. First, Frasier arrived to the meeting with the Assistant District Attorney who had prosecuted the MIP case. Ds.' Ex. 1, 14. Plaintiff indicated in deposition that the Assistant D.A.'s presence was unusual. Id. Furthermore, Yeager joined the meeting about halfway through, and Frasier, who seems to have been facilitating or running the meeting, called on Yeager to provide an update on SWOCC's criminal justice program, despite that plaintiff was listed on the agenda to give the SWOCC update. Id. at 15.

         At the end of the meeting, plaintiff alleges that Frasier announced that he wanted to "address the elephant in the room .... [plaintiffs] behavior." Id. at 16; Pl.'s Ex. B, 10, According to plaintiff, Frasier then "lambasted" her for fifteen minutes regarding her representation of SWOCC students at the MIP trial, her purported conflict of interest, and how she had "embarrassed" police officers on the stand. Id. Apparently the Coos Bay police chief also critiqued plaintiff for calling the police officers' integrity into question, which plaintiff agreed she had done, saying, "It's called cross-examination." Id. Plaintiff reported in deposition that the critique lasted thirty minutes and she was "humiliated:" "it was a no win situation for me." Pl.'s Ex. B, 10-11; Ds.' 16-17. According to plaintiff, Frasier announced to the group that plaintiffs behavior had been such that it needed to be raised publicly. Pl.'s Ex. B, 15; Ds.' 20. "He made it really personal at that meeting." Id. Frasier concluded by telling plaintiff she was no longer invited to the chiefs meetings. Id.

         On June 3, plaintiff received a Notice of Investigatory Meeting from HR Director Gilroy, alerting plaintiff that SWOCC was considering dismissing her from her position. Ds.' Ex. 4. The Notice letter stated that "[t]he basis of this proposed action stems from the College's concerns regarding your violation of College directives and unprofessional conduct in violation of the College's Code of Conduct." Id. The letter further announced a "due process, pre-termination meeting" scheduled for June 7, which was purportedly intended to give plaintiff "an opportunity to present any information [she] want[ed] considered." Id.

         On June 7, plaintiff attended the pre-termination hearing as scheduled. Pl.'s 2d Am'd Compl. ¶ 70. The only SWOCC administrator at the hearing was HR director Gilroy. Id. at ¶ 71. Yeager, SWOCC President Scott, SWOCC Vice President Tomlin, and Frasier were not present, thus plaintiff alleges she had no opportunity to confront the witnesses against her. Id. At or shortly after the hearing, HR Director Gilroy delivered to plaintiff a Notice of Termination, dated June 7, 2016. Pl.'s Ex J; Ds.' Ex. 5. The Notice of Termination stated, "During this meeting, you were given an opportunity to respond to the College's concerns. After carefully considering all of the issues and your responses, the College has determined that your conduct demonstrates a continued pattern of unprofessional conduct." Id. at 2. Plaintiff alleges that HR Director Gilroy threw the Notice of Termination at her in front of students and SWOCC colleagues. Pl.'s 2d Am'd Compl. ¶ 72.

         The Notice of Termination alleged two counts upon which plaintiffs termination was based. Pl.'s Ex J; Ds.' Ex. 5. First, the Notice alleged insubordination pertaining to plaintiffs representation of the six SWOCC students because two of plaintiff s then-current students were present when plaintiff gave the other six legal advice, which the Notice claimed "constituted [plaintiff] representing them" in violation of Yeager's instruction that she "not represent [her] current students." Id. Second, the Notice alleged plaintiff had engaged in unauthorized use of employment time and SWOCC resources when she called Frasier from her SWOCC office phone in February 2016 during work hours regarding the student who had approached her about legal representation, whom she declined to represent.[12] Id. Plaintiff challenges the reasons outlined by SWOCC in the Notice of Termination as "mere pretext" for her termination. Pl.'s 2d Am'd Compl. ¶ 74.

         Plaintiffs employment contract with SWOCC was set to expire on June 10, 2016, three days after her employment was terminated. Because plaintiffs employment was terminated immediately prior to the administration of final exams for the courses she was then teaching, [13] SWOCC subsequently paid her beyond her final paycheck to grade her students' exams. Pl.'s Ex. A at 8.

         It appears from the record that plaintiff filed a formal grievance regarding SWOCC's termination of her employment, pursuant to the terms of the teachers' Union agreement with SWOCC. Ds.' Ex. 6 at 51-53. The parties appear to have participated in arbitration. Pl.'s Ex. B at 9; Ds.' Ex. 1 at 9, 16.

         Plaintiff initially filed this action on December 2, 2016 (doc. 1) and filed a second amended complaint on August 23, 2017 (doc. 17). On September 28, 2017, defendants moved for partial summary judgment as to plaintiffs federal claims, all of which arise under 42 U.S.C. § 1983 (doc. 19). Plaintiff has agreed to voluntarily dismiss her § 1983 claims alleging violations of equal protection and liberty interest. Ds.' Mot. Part. Summ. J, 1. Plaintiffs remaining § 1983 claims entail defendant's alleged violations of plaintiffs First Amendment rights to free speech and free association, as well as her Fourteenth Amendment property interest right to due process.


         Summary judgment is appropriate if "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 issue of material fact. Id.; Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving parties favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008).


         Plaintiff brings her claims against defendants, alleging retaliation for and violation of her constitutional rights under 42 U.S.C. § 1983, [14] Defendants do not challenge that they acted under color of state law in terminating plaintiffs employment.

         Defendants move for summary judgment as to plaintiffs First Amendment and Fourteenth Amendment claims, arguing that: (I) plaintiffs free speech and free association claims should be addressed as a hybrid claim; (II) plaintiffs contested speech and association activities did not pertain to matters of public concern, but even if they did, on balance SWOCC's legitimate administrative interests outweighed plaintiffs First Amendment rights; and (III) plaintiff did not have a reasonable expectation of continued employment, and thus she lacked a protected property interest meriting due process under the Fourteenth Amendment, I will address each of these arguments in turn.

         I. First Amendment Hybrid Claim

         Defendants argue that I should conjunctively address plaintiffs freedom of speech and freedom of association retaliation claims. See Ds.' Mot. Part. Sum, J. at 7; Ds.' Reply at 2-3; Pl.'s 2d Am'd Complaint, 20-25. Defendants argue plaintiffs two First Amendment claims are sufficiently intertwined to merit the hybrid speech/association analysis set forth in Hudson v. Craven, 403 F.3d 691, 696-98 (9th Cir. 2005).[15] In Hudson, the court held that "[t]he speech and associations! rights at issue here are so intertwined that we see no reason to distinguish this hybrid circumstance from a case involving only speech rights." Id. at 698. As a result, the court applied the free speech retaliation analysis set out by the U.S. Supreme Court to both of plaintiffs First Amendment claims. Id.

         Following Hudson, the Ninth Circuit's hybrid analysis has been applied throughout the Circuit in cases where plaintiffs have pled both speech and association retaliation. See Vizcarra v. Chou, 2007 WL 4790813, *4 (CD. Cal. 2007) (applying the hybrid analysis when plaintiff-employee alleged that defendants-employers retaliated against plaintiff due not only to plaintiffs own speech but also the speech of other employees with whom she associated and whose speech defendants may have attributed to plaintiff); Schnabel v. Hualapai Valley First Dist., 2009 WL 322948, * 10 (D. Ariz. 2009) (applying the hybrid analysis when plaintiffs-employees' alleged that defendants-employers retaliated against plaintiffs due to statements made at Union meetings and information plaintiffs shared with the Union); Biggs v. Town of Gilbert, 2012 WL 94566, * 6 (D. Ariz. 2012) (applying the hybrid analysis when plaintiff-employee alleged defendants-employers retaliated against plaintiff due to plaintiffs retention of, and thus association with, legal counsel whom plaintiff hired to represent and speak for plaintiff regarding prospective adverse employment action). Indeed, it appears that courts within the Ninth Circuit apply the Hudson's hybrid analysis virtually any time a plaintiff pleads both speech- and association-based retaliation claims. See Murray v. Wash. St. Dep't of Ecology, 2008 WL 467340, * 4 (E.D. Wash. 2008); Godwin v. Rogue Valley Youth Con. Facility, 656 Fed.Appx. 874, 875 (9th Cir. 2016); Candelaria v. City of Tolleson, 2017 W1 6031769, * 1 n.1 (9th Cir. 2017); cf Hall v. Summit Fire Dist., 2018 WL 1576865, * 7 (D. Ariz. 2018) (finding the hybrid analysis inapplicable because plaintiff alleged solely associational retaliation and did not include a freestanding claim for violation of freedom of speech).

         Plaintiff argues her speech and association retaliation claims are not inextricable and opposes applying the hybrid speech/association analysis to her First Amendment claims. Pl.'s Memo Oppo. Ds.' Mot. Part. Sum. J. at 3-4. Plaintiff seeks to distinguish her claim from that of the plaintiff in Hudson, which the District Court characterized as "more one involving freedom of association than freedom of speech." 403 F.3d at 695. Here, plaintiff argues that the speech and associational activities in which she engaged, and which led to the alleged retaliation by SWOCC, are separable; to wit, plaintiff avers that her speech claim pertains to her cross-examination of police officers at trial, while her association claim pertains to her representation of SWOCC students. Pl.'s Memo Oppo. Ds.' Mot. Part. Sum. J. at 3-4. Plaintiff further alleges that disputed issues of material fact separate plaintiffs speech and association claims.[16] Id.

         While the activity engaged in by plaintiff is certainly factually distinguishable from the activity engaged in by the plaintiff in Hudson, here plaintiffs First Amendment claims are sufficiently intertwined to constitute a hybrid circumstance familiar from speech/association retaliation cases within the Ninth Circuit. Plaintiffs allegedly protected speech activity of cross-examining police officers at trial would not have occurred but for her association as pro bono legal defense counsel for the six SWOCC students. This does not negate that disputed issues of material fact remain regarding SWOCC's inconsistent policy as to legal representation of students by faculty, as well as SWOCC's purported justification(s) for terminating plaintiffs employment. However, ...

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