Opinion
Civil No. 03-1230-MO.
September 14, 2004
OPINION and ORDER
On July 9, 2004, the court issued a ruling granting summary judgment against plaintiff's First Amendment retaliation claim brought pursuant to Section 1983. The court also denied summary judgment as to plaintiff's Title VII claims. Relying on recent Ninth Circuit precedent, plaintiff filed a motion to reconsider the court's ruling on his First Amendment claim asserted against defendant Jan Thompson. As discussed below, the court denies the motion to reconsider (doc. #50).
I.
Plaintiff Lyle Block, a county procurement specialist, argues that his supervisor, Jan Thompson, subjected him to discrimination and harassment because she did not like men. Among other things, Thompson allegedly made degrading comments about males and treated plaintiff more harshly than other female employees. For instance, according to plaintiff, Thompson made him attend an "employee assistance program" even though there was no justifiable reason for doing so.
Plaintiff complained to Thompson directly on several occasions about her treatment of him. Plaintiff also complained to Dave Boyer, Thompson's supervisor, about Thompson's alleged gender discrimination. At his deposition, plaintiff gave a general description of his conversation with Boyer:
Q: Can you tell me about the meeting? When you sat down, what did Dave say to you?
A: He just asked me how I was being treated by Jan, and I had told him. And when I told him about [the employee assistance program], being forced to go to [it], he said he's heard enough and he'll go forward with [an internal] investigation. And that's all he said to me.
Q: When he asked you how you were being treated by Jan, what did you tell him?
A: I told him I was being harassed and I believed it was gender based because no one, other woman, in the work group was being hounded like I was.
. . . .
Q: What else did you tell him?
A: I told him about the [employee assistance program] meeting.
Q: Did you give him examples of the harassment?
A: Yes. I had written documentation at the time that I showed him, and he looked at two or three pages and he said that's enough and he'll go forward. And he pushed back the papers to me and that was the end of the meeting.
And, in his affidavit, plaintiff indicates he generally told Boyer about Thompson's "unlawful treatment of him, including her harassment and discrimination against [him] based upon [his] gender [and] the hostile work environment to which [he] was subjected." After finding out about plaintiff's discussion with Boyer, Thompson became angry and allegedly retaliated against plaintiff by, among other things, recommending he be removed from his then-current position.
As stated, plaintiff's Title VII claims are going to trial. The only issue here is whether the court's summary judgment against the First Amendment claim should be overturned. The court granted summary judgment after concluding that plaintiff's complaint to Boyer did not constitute a matter of "public concern" for purposes of First Amendment analysis.
Reviewing a motion for reconsideration does not amount to simply a second bite at the apple. Rather, the motion "must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Medford Pacific v. Danmor Constr., 2 F. Supp. 2d 1322, 1323 (D. Or. 1998) (emphasis added). One of the primary grounds justifying reconsideration is "an intervening change in controlling law." Id.
II.
Those working in the public sector retain "the right to associate and speak freely on matters of public concern." Fender v. Oregon City, 811 F. Supp. 554, 560 (D. Or. 1993). Thus when "evaluating the First Amendment rights of a public employee, the threshold inquiry is whether the statements at issue substantially address a matter of public concern." Brewster v. Board of Educ., 149 F.3d 971, 978 (9th Cir. 1998). If the matters were not of public concern, "the First Amendment is not triggered at all," and it is thus unnecessary to "scrutinize the reasons for the employer's actions." Id. (citation omitted). Whether the subject of the alleged speech qualifies as a matter of public concern presents an issue of law for the court to decide. Alpha Energy Savers, Inc. v. Hansen, ___ F.3d ___, 2004 WL 1908169 at *4 (9th Cir. Aug. 27, 2004) (citing Connick v. Myers, 461 U.S. 138, 148 n. 7 (1983)).Determining whether a matter is of public concern can be difficult. The court must look to "the content, form, and context of a given statement, as revealed by the whole record."Connick, 461 U.S. at 147-48. "Content is `the greatest single factor in the Connick inquiry.'" Ceballos v. Garcetti, 361 F.3d 1168, 1173 (9th Cir. 2004) (quoting Johnson v. Multnomah County, 48 F.3d 420, 424 (9th Cir. 1995)). In addition, although the court must consider the "context" of the statements at issue, the mere fact they were expressed to public officials privately, rather than publicly, will not deprive the speaker of First Amendment protections. Ceballos, 361 F.3d at 1174.
In moving for summary judgment, defendants relied primarily on the landmark case Connick v. Myers, 461 U.S. 138. In that case, the New Orleans District Attorney fired an assistant district attorney because she had circulated a questionnaire to her colleagues generally eliciting opinions about the office's superiors and overall functioning. Id. at 146-48. The Supreme Court, in a 5 to 4 decision, attempted to define the scope of what constitutes a matter of public concern:
We hold . . . that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.Id. at 147 (emphasis added). Pursuant to this analysis, the Court held that the questionnaire's content was largely beyond the First Amendment's scope because it was "tied to a personal employment dispute," one between an employee and her boss. Id. at 148 n. 8.
The Court did find that one part of the questionnaire implicated matters of public concern, specifically, a question asking colleagues about whether they ever felt "pressured to work in political campaigns on behalf of office supported candidates."Connick, 461 U.S. at 149. The Court reasoned, "official pressure upon employees to work for political candidates not of the worker's own choice constitutes a coercion of belief in violation of fundamental constitutional rights." Id.
The Ninth Circuit also has distinguished between "personnel" matters and those matters truly of concern to the general public:
Speech that concerns issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government merits the highest degree of first amendment protection. In contrast, speech that deals with individual personnel disputes and grievances and that would be of no relevance to the public's evaluation of the performance of governmental agencies, is generally not of public concern.Ceballos, 361 F.3d at 1173 (citations omitted); see alsoMcKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983).
While defendants in this case contended that plaintiff's statements to Boyer were no more than a discussion about an individual personnel dispute, plaintiff argued that discrimination by a public employer inherently is a matter of public concern. The issue, then, was whether an employee's private complaint to a public official that his supervisor is discriminating against him because of his gender qualifies as a matter of public concern.
The parties cite no Ninth Circuit case law which directly decides how to treat an internal discrimination complaint that concerns only the treatment of the complaining party. This court, however, has considered a case similar to the one at bar and held for the employer. See Fischer v. City of Portland, No. 02-1728, 2003 WL 23537982 at **2-6 (D. Or. Nov. 18, 2003). In Fischer, the plaintiff privately complained about the city's inaction in the face of alleged ongoing sexual harassment by colleagues. Judge Brown noted that plaintiff did not speak "to an audience wider than her immediate managers," and the statements alleged conduct "directed solely at [plaintiff]." Id. at **4-5. Judge Brown concluded: "Plaintiff's complaints to management about alleged sexual harassment and a hostile work environment are insufficient in and of themselves to constitute protected speech for purposes of the First Amendment." Id.
In seeking reconsideration, the plaintiff cites Thomas v. City of Beaverton, 379 F.3d 802 (9th Cir. 2004), which was decided after this court originally granted summary judgment for defendants. The court also notes the Ninth Circuit recently decided another case discussing the "public concern" issue as it relates to statements alleging discrimination. See Alpha Energy, ___ F.3d at ___, 2004 WL 1908169. This recent case law is not "strongly convincing" as to the specific issue presented in the case at bar and thus does not justify granting plaintiff's motion for reconsideration. Medford, 2 F. Supp. 2d at 1323.
In City of Beaverton, the plaintiff employee had complained to her supervisor about the city's allegedly discriminatory treatment aimed at one of plaintiff's African-American colleagues. City of Beaverton, 379 F.3d at 806-07. Thus the plaintiff in City of Beaverton did not complain about discrimination aimed at herself. The court, however, broadly observed: "Unlawful conduct by a government employee or illegal activity within a government agency is a matter of public concern." Id. at 809. Nevertheless the court was careful to distinguish situations like that presented in the case at bar:
The district court concluded that Thomas' support of [her African-American colleague] for the promotion was not a matter of public concern because her speech was about a personnel matter. However, the type of personnel matters that we have deemed unprotected under the public concern test are employment grievances in which the employee is complaining about her own job treatment, not personnel matters pertaining to others. . . . Even though Thomas' support for [her colleague] concerned a personnel matter, it did not pertain to Thomas' own job status; therefore, it is the type of personnel matter that can be constitutionally protected under the public concern test.Id. at 808 (second emphasis added). Thus the court in City of Beaverton did not base its analysis solely on the fact the speech at issue alleged discrimination; the court also emphasized that the plaintiff had complained on behalf of another employee.
Alpha Energy similarly does not persuade the court to change its earlier decision. In Alpha Energy, the plaintiff testified at a grievance hearing and offered to testify in federal court on behalf of a county employee who was claiming age and race discrimination. Alpha Energy, ___ F.3d at ___, 2004 WL1908169 at *1. The court concluded that discrimination, the statements' subject, was "unquestionably a matter of public concern." Id. at *5. Indeed, the court broadly announced, "Disputes over racial, religious, or other such discrimination by public officials are not simply individual personnel matters." Id. In reaching its conclusion, however, the court also emphasized that "proceedings before a judicial or administrative body constitute a matter of public concern if they bring to light potential or actual discrimination." Id. In addition, its holding was specifically based on "a public employee's testimony" addressing a matter of public concern. Id. at *6. In contrast, the plaintiff in the case at bar did not make his statements during any adjudicative proceedings. Moreover, the court inAlpha Energy expressly distinguished situations such as the one presented here: "We recently indicated that a public employee's speech in support of a co-worker's grievance may be treated differently than `employment grievances in which the employee is complaining about [his] own job treatment.'" Id. at *5 n. 6 (quoting City of Beaverton, 379 F.3d at 808).
III.
In sum, plaintiff has not come forward with new case law sufficiently persuasive to justify overturning the court's previous summary judgment order. His motion for reconsideration is therefore DENIED. (Doc. #50). Plaintiff's statements, as revealed by this record, show only that he complained to Mr. Boyle about a single coworker's allegedly discriminatory conduct which was "directed solely" at plaintiff. Fischer, 2003 WL23537982 at *5. Thus the subject matter of plaintiff's statements concerned only his " own job treatment." City of Beaverton, 379 F.3d at 808 (emphasis in original). While the court considers allegations of discriminatory conduct to be a serious matter, the court holds that plaintiff cannot state a constitutional claim under the First Amendment (although, as already held, he does have claims under Title VII).
IT IS SO ORDERED.