United States District Court, D. Oregon, Medford Division
OPINION & ORDER
D. CLARKE, UNITED STATES MAGISTRATE JUDGE
case comes before the Court on Defendant's Renewed Motion
for Judgment as a Matter of Law (#123) pursuant to Fed. R.
Civ. Pro. 50(b). For the reasons set forth below,
Defendant's motion is DENIED.
Pieter Smeenk was a licensed engineer on staff at the City of
Ashland's Public Works Department for several years.
Plaintiff filed this action on September 18, 2017, alleging
violations of free speech rights under 42 U.S.C. § 1983,
retaliation for engaging in whistleblower activity under ORS
659A.203, and common law wrongful termination (#1). Prior to
trial, the Court found that Defendant was entitled to summary
judgment on the issue of common law wrongful discharge, and
Plaintiff later voluntarily dismissed his free speech claim.
Therefore, the only claim presented to the jury at trial was
Plaintiffs whistleblower retaliation claim. For his
whistleblower retaliation claim, Plaintiff sought $259, 637
in economic damages, calculated from the time he was
terminated in 2017 until he obtained other employment.
moved for judgment as a matter of law under Fed.R.Civ.P.
50(a) both orally and in writing on the basis that Plaintiff
had not presented sufficient evidence to establish protected
whistleblowing activity under ORS 659A.203. Both motions were
denied by this Court. On March 21, 2019, the jury rendered a
verdict in Plaintiffs favor in the amount of $259, 637 for
economic damages (#116). Judgment was entered on the verdict
on March 26, 2019 (#118). Defendant now moves for judgment as
a matter of law pursuant to Fed.R.Civ.P. 50(b).
this litigation, Plaintiff presented three instances of
alleged protected activity that resulted in retaliation, with
the first two instances occurring in 2010 and 2015, and the
last instance occurring in 2017. On summary judgment, the
Court held that Plaintiffs first two alleged instances of
retaliation were barred by the applicable statute of
limitations. See Opinion and Order at 9 (#51).
However, the Court allowed testimony at trial concerning the
2010 and 2015 instances because they were relevant to
Plaintiffs employment history, the state of mind of his
employers in making their decision to terminate his
employment in 2017, and Defendant's defense that
Plaintiff had a history of performance issues and not
following the proper chain of command. The three instances of
alleged whistleblowing activity and corresponding retaliatory
responses are summarized below to provide context.
2010 protected activity and retaliatory response.
2010, Plaintiff s job description was revised to exclude any
supervisory authority over other City employees. Plaintiff
complained about the proposed reclassification to his
supervisor Mr. Faught and to the City Administrator, but the
reclassification proceeded over Plaintiffs objections. The
first allegedly protected activity occurred thereafter when
Plaintiff 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. Mr. Faught allegedly retaliated against
Plaintiff for contacting OSBEELS by issuing an oral reprimand
with an accompanying memorandum to Plaintiffs 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.
2015 protected activity and retaliatory response.
2014, the Engineering Services Coordinator, Scott Fleury,
applied to OSBEELS for an Oregon engineering license.
Plaintiff 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 Plaintiff had identified "potential practice
violations." Plaintiff alleged that Mr. Faught
retaliated against him for this activity by issuing a
non-disciplinary performance memorandum in February 2015.
2017 protected activity and retaliatory response.
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. Plaintiff was not part of
the WTP project. Upon learning that the engineering services
contract for the WTP project was going to be considered at
the meeting, Plaintiff 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. Plaintiff 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 would offer testimony to the City
Council in opposition to its approval. Plf. Opp. to Motion
for Summ. Judgment, p. 9. Mr. Faught ultimately agreed to
remove the WTP project from the agenda. Plaintiff alleged
that Defendant retaliated against him for raising his
concerns to the City Attorney and City Administrator about
the WTP project by placing him on administrative leave and
ultimately terminating his employment on April 7, 2017.
district court may set aside a jury verdict and grant
judgment as a matter of law "only if, under the
governing law, there can be but one reasonable conclusion as
to the verdict." Winarto v. Toshiba Am. Elecs.
Components, Inc.,274 F.3d 1276, 1283 (9th Cir. 2001);
Fed.R.Civ.P. 50(a). When evaluating such a motion, "the
court must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v.
Sanderson Plumbing Prods., Inc.,530 U.S. 133, 150
(2000). If the court does not grant a motion for judgment as
a matter of law made under Rule 50(a), the court is