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Smeenk v. Faught

United States District Court, D. Oregon, Medford Division

January 25, 2019

PIETER SMEENK, Plaintiff,
v.
MICHAEL FAUGHT, and THE CITY OF ASHLAND, Defendants.

          OPINION & ORDER

          MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE.

         This case comes before the Court on Defendant's Motion for Summary Judgment (#30). For the reasons set forth below, Defendant's motion is GRANTED in part and DENIED in part.[1] This case will proceed to trial on the issues of freedom of speech and whistleblower retaliation.

         BACKGROUND

         Plaintiff Pieter Smeenk was a licensed engineer on staff at the City of Ashland's Public Works Department for several years. At all times material to this lawsuit, Defendant Michael Faught was the Public Works Director for the City of Ashland and acted as Mr. Smeenk's direct supervisor.

         A. First Alleged Protected Speech and Retaliatory Response

         In 2010, Mr. Smeenk's job description was revised to exclude any supervisory authority over other City employees. Mr. Smeenk complained about the proposed reclassification to Mr. Faught and to the City Administrator, but the reclassification proceeded over Mr. Smeenk's objections. Pursuant to the City's grievance process, Mr. Smeenk appealed the issue, but the City Administrator's decision remained final. Mr. Smeenk then notified the Ashland City Council in writing regarding his employment reclassification. In response, the Ashland City Attorney issued a cease and desist letter to Mr. Smeenk.

         The first allegedly protected speech at issue in this case occurred thereafter when Mr. Smeenk sent an email to the Oregon State Board of Examiners for Engineering and Land Surveying ("OSBEELS") for clarification regarding the lawfulness of his reclassification and the City's staffing arrangement. A meeting was held on June 11, 2010, between OSBEELS, Mr. Smeenk, and Mr. Faught. A follow-up letter was sent by OSBEELS that stated, "any unlicensed staff performing engineering work and not under the supervision and control of a professional is in violation of ORS 672.002." Decl. of Christopher Lundberg, Ex. H (#38). OSBEELS also wrote that "there is a difference in supervising personnel in a human resources manner and supervising an engineering work product." Id. OSBEELS did not provide an opinion that Mr. Smeenk needed to have supervisory authority over his coworkers.

         Mr. Faught allegedly retaliated against Mr. Smeenk for contacting OSBEELS by issuing an oral reprimand with an accompanying memorandum to Mr. Smeenk's personnel file. The memorandum states that the reprimand was for failing to acknowledge the finality of the City Administrator's decision and improperly circumventing the grievance process by soliciting the City Council.

         B. Second Alleged Protected Speech and Retaliatory Response

         In 2014, the Engineering Services Coordinator, Scott Fleury, applied to OSBEELS for an Oregon engineering license. Mr. Smeenk completed a professional reference form and submitted it to OSBEELS as part of Mr. Fleury's application process. As reflected in meeting minutes dated August 2014, OSBEELS considered this reference form and noted that Mr. Smeenk had identified "potential practice violations." OSBEELS ultimately denied Mr. Fleury's application.

         Mr. Smeenk alleges that Mr. Faught issued a non-disciplinary performance memorandum in retaliation for Mr. Smeenk's statements on the reference form. The performance memorandum was issued in February 2015 and makes no direct mention of Mr. Smeenk's comments on the reference form. The memorandum is four pages long and references various specific projects and issues related to Mr. Smeenk's employment. Decl. of Christopher Lundberg, Ex. N (#38). Mr. Faught alleges that the performance memorandum is in response to Mr. Smeenk's pattern of "inserting himself in other people's projects" despite being repeatedly told to stop. Def. Motion for Surara. Judgment, p. 5 (#30).

         C. Third Alleged Protected Speech and Retaliatory Response

         On February 21, 2017, the Ashland City Council was scheduled to hold a meeting at City Hall. On the agenda was a consent item for approval to move forward with a project for a new water treatment plant ("WTP project"). Mr. Fleury was acting as the WTP project leader. Mr. Smeenk was not part of the WTP project, but nonetheless decided to review each of the bidding firm's proposals for the project and walked the proposed sites for the project.

         Mr. Smeenk alleges that he had serious concerns regarding the project's propriety, the bidding process, and its readiness for the Council's approval. Plf; Opp. to Motion for Summ. Judgment, p. 8 (#37). Upon learning that the engineering services contract for the WTP project was going to be considered at the meeting, Mr. Smeenk made phone calls to the engineering firms that were not awarded the project to "confirm [his] assumptions." Def Motion for Summ. Judgment, p, 7; Smeenk Depo 183:2-25; 184:1-14. Mr. Smeenk arrived at the City Council meeting shortly before it began and approached the City Attorney and City Administrator and advised them that if the WTP project was not pulled from the agenda pending further review, he ...


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