United States District Court, D. Oregon, Medford Division
OPINION & ORDER
D. CLARKE UNITED STATES MAGISTRATE JUDGE.
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. This case will proceed to trial on the
issues of freedom of speech and whistleblower retaliation.
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.
First Alleged Protected Speech and Retaliatory
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.
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.
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.
Second Alleged Protected Speech and Retaliatory
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
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).
Third Alleged Protected Speech and Retaliatory
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.
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 ...