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Kardell v. Lane County

United States District Court, D. Oregon

July 25, 2019

MARC KARDELL, Plaintiff,
v.
LANE COUNTY, LIANE DAVIS, and ALEX GARDNER, Defendants.

          OPINION AND ORDER

          Michael McShane United States District Judge

         Before me are several motions filed by the parties following a March 7, 2019, jury verdict in favor of plaintiff Marc Kardell with respect to his retaliation claims against defendants Lianne Davis and Lane County. Defendant Alex Gardner, as a prevailing party, moves for an award of costs against Kardell. ECF No. 192. Davis and Lane County move for Judgement as a Matter of Law, arguing that the evidence did not support the verdict. ECF No. 205. Finally, Kardell moves for attorney fees and costs against Davis and the County, along with pre and postjudgement interest. ECF NO. 197, 221, 202, and 207 . As the parties are well-aware of the facts and proceedings in this 6-year-old action, I only include below the facts relevant to the pending motions.

         DISCUSSION

         1. Gardner's Motion for Costs

         The jury found Gardner did not violate Kardell's First Amendment rights. Gardner, as the prevailing party on Kardell's claims against him, moves for $6, 235.00 in costs. ECF No. 192. Gardner seeks $20 in docket fees, $350 in filing fees, $5, 157.02 in deposition transcript costs, and $707.98 in copying fees. Kardell does not dispute any of the specific costs sought, arguing instead that because he prevailed on his claims against the two other parties, he is the prevailing party in this action and Gardner is not entitled to any costs. Kardell points to no cases supporting his theory that because he prevailed on his claims against other defendants, Gardner is not a prevailing party as to Kardell's claims against him.

         For example, Kardell points to Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro S.A. de C.V., 464 F.3d 1339, 1347 (Fed. Cir. 2006) for the proposition that “The fact that a party does not prevail on all of its claims does not, however, preclude it from being the prevailing party for purposes of awarding costs under Rule 54(d).” The lone defendant in Kemin Foods, however, argued that because the plaintiff there prevailed on only one of its two patent infringement claims against it, the defendant was in fact the prevailing party under rule 54. Id. Here, Kardell prevailed on no claim against Gardner. Therefore, as to Kardell's claims against Gardner, Gardner is the prevailing party and is entitled to costs. Kardell does not challenge any of the specific costs sought and, in any case, Gardener's requested costs are all allowable under 28 U.S.C. § 1920. Gardner is awarded $6, 235.00 in costs.

         2. Liane Davis and Lane County's Motion for Judgment as a Matter of Law

          As noted, the jury found that Liane Davis and Lane County retaliated against Kardell in violation of his First Amendment rights. In moving to set aside that verdict, Davis and Lane County face a high bar. See Costa v. Desert Palace, Inc., 299 F.3d 838, 859 (9th Cir. 2002) (noting that “[t]his high hurdle recognizes that credibility, inferences, and factfinding are the province of the jury, not this court.”). The Court “can overturn the jury's verdict and grant such a motion only if ‘there is no legally sufficient basis for a reasonable jury to find for that party on that issue.'” Id. (quoting Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 149 (2000)). The Court may not weigh the evidence and must draw all inferences in favor of the non-moving party. Id. Finally, I must “disregard all evidence favorable to the moving party that the jury is not required to believe.” Id. (quoting Reeves, 530 U.S. at 151).

         To prevail on his First Amendment claims, Kardell had to 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). While the Court is still somewhat puzzled as to what exactly Kardell complained of when he spoke with HR, I believe that most of this confusion stems from Kardell's rather odd way of communicating. In his declarations submitted at summary judgment, and later confirmed in his testimony at trial, Kardell manages to use a lot of words and phrases while often leaving the listener or reader in the dark as to what he is attempting to communicate. Kardell's own attorney acknowledged this trait at trial: “And I recognize that Mr. Kardell's communication style was perhaps not the most clear. I recognize that.” ECF No. 214, 143.

         What is beyond dispute is that everyone who heard Kardell's complaints believed he was primarily concerned with whether he was under investigation. Kardell acknowledged in his testimony that this was in fact his primary concern in going to HR:

Q. Okay. You mentioned earlier that when you met with Mr. Vorhees and Ms. Hayes you had some concern that maybe you had been investigated too. Did you raise that with human resources in January 2012?
A. I did. I thought that was new information to them, and I was aware of the requirement that if you are a whistleblower you need to bring new information. And I thought that what had happened to me, being somebody that worked closely with a lot of the board members, that if they saw that I had been investigated but that nothing had come of it, maybe they would start to look at these other investigations regarding the board members that were in the minority because it was the majority that was authorizing, essentially, her actions, that if they knew that it was going after other people as well, maybe they'd take another look at that and do something to kind of put some bookends around what it was she was doing.
Q. So that's my next question. What was it that you were asking HR to do about all of these concerns you had?
A. I was asking, first of all, to take a look at what happened with regards to me, and then if there was anything there, report those issues to the board and that if the result was what I believed it to be, that there should be somebody else signing off or doing something with her investigations so she wasn't just initiating these investigations on and on into the future.

ECF No. 218-1, 20-21 (emphasis added).

         Both of the HR employees who met with Kardell testified that while they were generally confused about the nature of Kardell's complaints, they understood that his main concern was whether he was, or had been, under investigation. “And his main concern was he felt in some way that he was part of this investigation that involved Mike McKenzie-Bahr, and wanted to know about that investigation and his involvement, and the outcome of the investigation and all of those things.” ECF No. 215, 37. “But it really felt more like it was about him personally, and how he was feeling in the office, and how he was feeling about the work and his environment, relationships, things like that. ECF No. 25, 40. “I don't know, it almost seemed like in the meetings, there was almost-Mr. Kardell was all over the place. Like I said, we tried to nail him down. It was like this big conspiracy theory. I'm part of this investigation, even though we told him he wasn't part of the investigation. And then there was these other things that came along. And we were trying to answer those, and then how do we move forward. Because really what I saw was communication issues in the workplace.” ECF No. 215, 42-43.

         Regardless of the confusing fashion in which Kardell voiced his concerns, everyone agrees that Kardell refused to believe he had not been under investigation. Ironically, Kardell- who complained about Davis's costly and baseless investigations-demanded a costly and baseless investigation into whether he had been under investigation. If the above was the totality of the evidence presented, Kardell did not in fact speak on a matter of public concern.

         However, the question here is whether any evidence supports the verdict. This First Amendment action presents an odd scenario where roughly 90% of Kardell's speech related to a purely personal concern, while perhaps 10% of his speech touched on matters of a public concern. There is testimony in the record, from Kardell and HR, that Kardell mentioned the issue regarding the procurement card. This testimony finds support in HR notes from the meeting and emails following the meeting. The gist of that complaint is that Kardell informed HR that Davis mentioned the possibility of initiating an investigation into a County employee's improper use of a County credit card. Davis told Kardell that should the employee apply for a job Davis coveted, she would raise the issue to the Board of Commissioners. This speech-where a County administrator held the threat of investigations over those who opposed her (in policies or in competition for a sought after position)-rises to a level of public concern. As argued by Kardell's attorney during arguments at the close of Kardell's case-in-chief, “Standing alone, that P-card issue is a matter of public concern. It's a threat, it's a misuse of power to penalize a political opponent.” ECF No. 214, 149. And while it is clear that this was not the main thrust of Kardell's comments to HR, the evidence demonstrates that he raised the issue, however obliquely, to HR.[1]

         One next asks whether Kardell spoke as a private citizen or as a County employee. To prevail on a First Amendment claim, Kardell must have spoken as a private citizen. Unlike the public concern prong, this prong is not a purely legal question. This was a question for the jury to decide. I note that this presents a fairly close question. After all, in a seemingly routine workplace conversation, Kardell learned that another County employee might have information that another employee was misusing a County credit card.[2] It would appear that the typical reaction for nearly any employee (whether a public or private employee) would be to take that matter to one's supervisor or, as Kardell in fact did, to HR. This is not a case where a public employee took an issue to the local newspaper. Instead, Kardell took the issue to HR, where he piggybacked the complaint in what appears to be a rather offhand manner onto his more vociferous complaint that he was subject to an improper investigation. That said, Kardell testified, and in fact went out of his way to constantly repeat, that HR “was not in my chain of command ...


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