Lane v. Marion County

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CODY LANE,

Plaintiff, Case No. 6:19-cv-287-MC

v. OPINION AND ORDER

MARION COUNTY, a political subdivision of

the state of Oregon, the MARION COUNTY

SHERIFF’S OFFICE, JASON MYERS,

individually and in his official capacity as

Marion County Sheriff, and CRAIG

CUNNINGHAM, individually,

Defendants.

_____________________________

MCSHANE, Judge:

Plaintiff Cody Lane brings this action stemming from an internal investigation by the

Marion County Sheriff’s Office following a citizen’s report that Plaintiff followed his girlfriend

home from a bar in a marked patrol car while on duty. Defendants move for summary judgment.

ECF No. 25. Defendants’ motion is GRANTED.

BACKGROUND1

Plaintiff served as a patrol officer in the Marion County Sheriff’s Office for over ten

years. On the evening of November 24, 2017, Plaintiff worked the graveyard shift while his

1 The Court views the facts in the light most favorable to Plaintiff.

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girlfriend celebrated her birthday at the Red Apple bar. In the early hours of November 25, 2017,

Plaintiff’s girlfriend asked Plaintiff to follow her home as she had a malfunctioning headlight.

Plaintiff, already in the area, agreed to follow her home as they intended to spend Plaintiff’s

lunch break together. Several witnesses outside the bar observed Plaintiff’s patrol car follow the

girlfriend’s car out of the parking lot. One of the witnesses filed a report with the Sheriff’s

Office.

On November 30, 2017, Plaintiff received a Notice of Investigation. Defendant Craig

Cunningham, a Sergeant in the Sheriff’s Office, was the lead investigator in the internal

investigation of Plaintiff. Cunningham conducted 14 interviews, including of Plaintiff and his

girlfriend. On March 14, 2018, Plaintiff received a pre-termination letter. After a hearing,

Plaintiff was terminated effective April 9, 2018. Plaintiff’s Termination Letter noted Plaintiff

“purposefully meant to deceive or hide the fact that you were escorting your girlfriend home

from a bar.” Compl. ¶ 14 (emphasis omitted). Sheriff Meyers forwarded the allegation of

untruthfulness to the Marion County District Attorney’s Office, who placed Plaintiff on the

Brady list.

Through his union, Plaintiff filed a grievance and the parties went to arbitration on

September 5-7, 2018. Fourteen witnesses testified during the arbitration. On January 7, 2019, the

arbitrator ordered Plaintiff reinstated. Despite the arbitrator’s finding that Plaintiff was not

untruthful, the Marion County District Attorney refused to remove Plaintiff from the Brady list.

Plaintiff currently works not as a patrol officer, but in the Marion County Jail.

Plaintiff brings claims under the First and Fourteenth Amendments, alleging Defendants

violated his rights to due process and equal protection. Plaintiff argues:

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Specifically, the Defendants violated Plaintiff’s First Amendment liberty interest

in pursuing his chosen profession, his property interest in his chosen employment,

and his Fourteenth Amendment rights to due process and equal protection.

Defendant’s conduct in basing their investigation on misrepresentations and

twisted witness statements, in testifying falsely at Plaintiff’s arbitration, and in

willfully failing to make Plaintiff whole, pursuant to Arbitrator Marr’s order

caused these violations.

Pl.’s Resp. 6; ECF No. 51.

Plaintiff also brings state law claims for wrongful discharge, defamation, and intentional

infliction of emotional distress.

STANDARDS

The court must grant summary judgment if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue is

“genuine” if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v.

Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)). A fact is “material” if it could affect the outcome of the case. Id. The

court reviews evidence and draws inferences in the light most favorable to the non-moving party.

Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v.

Cromartie, 526 U.S. 541, 552 (1999)). When the moving party has met its burden, the non-

moving party must present “specific facts showing that there is a genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (quoting Fed. R. Civ.

P. 56(e)).

DISCUSSION

I. Plaintiff’s Procedural Due Process Claim

Plaintiff alleges that the investigation itself, his termination, and Defendants’ conduct

following the arbitration order violated his procedural due process rights. To prevail on these

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claims, Boyd must establish: “(1) a liberty or property interest protected by the Constitution; (2)

a deprivation of the interest by the government; (3) lack of process.” Portman v. County of Santa

Clara, 995 F.2d 898, 904 (9th Cir. 1993. “The fundamental requirement of due process is the

opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge,

424 U.S. 319, 333 (1976) (internal quotations omitted). Each setting invites its own assessment

under a Mathews analysis and the only general statement that can be made is that persons

holding interests protected by the due process clause are entitled to “some kind of a hearing.”

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citation omitted). “The tenured

public employee is entitled to oral or written notice of the charges against him, an explanation of

the employer’s evidence, and an opportunity to present his side of the story. To require more

than this prior to termination would intrude to an unwarranted extent on the government’s

interest in quickly removing an unsatisfactory employee.” Id. at 546 (internal citations omitted).

Here, Plaintiff received a Notice of Investigation less-than one week after the incident in

question. O’Kasey Decl. Ex. 5. The Notice informed Plaintiff of the citizen complaint regarding

possible violations of specific policies. The Notice provided:

During an incident on or about November 25, 2017, you are alleged to have

brought disrepute to the Marion County Sheriff’s Office. You are alleged to have

followed a female away from a bar in a marked County vehicle. The complainant

alleges hearing a conversation in which you stated, “Going to come follow you

home so that Stayton doesn’t get your ass.”

O’Kasey Decl. Ex. 5.

At the conclusion of the investigation, Plaintiff received a pre-termination notice which

set forth the charges and, pursuant to the collective bargaining agreement, set a time for the

Plaintiff to attend a hearing and respond to the charges. O’Kasey Decl. Ex. 6; ECF No. 26.

Plaintiff was provided a copy of the investigation and notified of his right to representation at the

4 – OPINION AND ORDER

due process hearing. After the hearing, Plaintiff received a written notice on April 9, 2018 that he

was being terminated because his behavior on the night in question:

brings into question your integrity and honesty. The investigation found that you

“purposefully” meant to deceive or hide the fact that you were “escorting” your

girlfriend home from a bar. You admitted that texting the message “Not a word to

them about what I am doing,” was intended to make sure that no one knew or

understood what you were doing because you didn’t want it to “look bad.” We

clarified during the Due Process hearing that you understood that to mean you

knew that you should not have been escorting her home from the location she was

at.

O’Kasey Decl. Ex. 7.

Pursuant to his rights under the collective bargaining agreement, Plaintiff arbitrated his

termination. Following that multi-day arbitration, the arbitrator ordered Plaintiff reinstated to his

former position, along with any back pay.

Plaintiff received an abundance of process. Plaintiff was interviewed during the internal

investigation, received notice of the charges, and presented evidence at the Due Process hearing.

Following his termination, Plaintiff successfully arbitrated his termination and was reinstated

with back pay. To the extent Plaintiff argues that the investigation simply ‘got it wrong,’ that

argument fails. “The Due Process Clause of the Fourteenth Amendment is not a guarantee

against incorrect or ill-advised personnel decisions.” Bishop v. Wood, 426 U.S. 341, 350 (1976).

As Plaintiff received multiple opportunities to be heard, and ultimately succeeded in his

bargained-for arbitration hearing, his procedural due process claim fails. The Court arrives at this

conclusion even assuming, without deciding, that the internal investigation incorrectly concluded

that Plaintiff was untrustworthy.

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II. Plaintiff’s Substantive Due Process Claim

Plaintiff argues Defendants’ determination that he was untrustworthy, and his subsequent

inclusion on the Brady list, violated his right to substantive due process; i.e., the right to work in

his chosen occupation. In the Ninth Circuit, substantive due process claims in the public

employment context are limited to “extreme cases, such as a government blacklist, which when

circulated or otherwise publicized to prospective employers effectively excludes the blacklisted

individual from his occupation, much as if the government had yanked the license of an

individual in an occupation that requires licensure.” Engquist v. Oregon Dep’t of Agric., 478

F.3d 985, 997-97 (9th Cir. 2007) (aff’d, 553 U.S. 591 (2008) (internal quotation omitted). In

other words, the Ninth Circuit tracks the conclusions of “the great majority” of other courts to

examine the issue, which have rejected a constitutional right to continued public employment in

a particular position. See, e.g, Nicholas v. Pa. State Univ., 227 F.3d 133, 142-43 (3rd Cir. 2000).

Stated differently, one does not have a constitutional right to a specific job or position, but only

to “a liberty interest in pursuing an occupation of one’s choice.” Engquist, 478 F.3d at 997.

As Plaintiff is currently employed by the Marion County Sheriff’s Office, he has not been

blacklisted from an occupation in law enforcement. Plaintiff has no liberty interest in his right to

a specific position, such as his former position as a patrol officer. Instead, Plaintiff has the right

to engage in his chosen occupation of law enforcement. As he is currently employed in that

occupation, Plaintiff’s substantive due process claim fails.

Plaintiff’s argument that his unsuccessful applications for employment with other law

enforcement agencies demonstrates he is blacklisted is meritless. Plaintiff produced evidence of

unsuccessful applications with the Portland and Bend police departments after his placement on

the Brady list. The Portland department declined to hire Plaintiff not because of his placement on

6 – OPINION AND ORDER

the Brady list but because Plaintiff admitted to violations involving the use of the law

enforcement database for personal reasons. Weiner Decl. Ex. 5, 36. The Bend department

declined to hire Plaintiff but did not provide a reason for rejecting Plaintiff’s application. Weiner

Decl. Ex. 6, 46. The record thus consists of one unsuccessful application that, when viewed in

the light most favorable to Plaintiff, is due to Plaintiff’s inclusion on the Brady list.

Providing evidence of one unsuccessful application with another law enforcement agency

falls far short of establishing one is blacklisted from a career in law enforcement. See Tillotson v.

Dumanis, 567 F. App’x 482, 483 (9th Cir. 2014) (noting “only four” rejected applications

following placement on a Brady list fell “far short of establishing a complete prohibition” on

obtaining employment in law enforcement”) (internal brackets omitted). As the record does not

support a conclusion that Plaintiff is blacklisted from engaging in his chose profession of law

enforcement—and in fact demonstrates the opposite—his substantive due process claim fails.

III. Plaintiff’s Equal Protection Claim

Plaintiff argues Defendants violated his right to equal protection because while he was

investigated for dishonesty, Defendants undertook no similar investigation when alerted to

complaints that Cunningham, who conducted Plaintiff’s internal investigation, was dishonest in

the course of Plaintiff’s investigation. This “class-of-one” theory, however, is not cognizable in

the public employment context. Engquist, 553 U.S. at 598 (holding “that the class-of-one theory

of equal protection does not apply in the public employment context.”). The “government has

significantly greater leeway in its dealings with citizen employees than it does when it brings its

sovereign power to bear on citizens at large.” Id. at 599. The Supreme Court concluded:

Thus, the class-of-one theory of equal protection—which presupposes that like

individuals should be treated alike, and that to treat them differently is to classify

them in a way that must survive at least rationality review—is simply a poor fit in

7 – OPINION AND ORDER

the public employment context. To treat employees differently is not to classify

them in a way that raises equal protection concerns. Rather, it is simply to

exercise the broad discretion that typically characterizes the employer-employee

relationship. A challenge that one has been treated individually in this context,

instead of like everyone else, is a challenge to the underlying nature of the

government action.

Id. at 605.

As Plaintiff acknowledges he is not a part of any protected class, his equal protection

claim based on the allegation that he was treated differently than another Sheriff’s Office

employee necessarily fails.

IV. Plaintiff’s Continued Placement on the Brady List

Whether as part of any or all of the above federal claims, Plaintiff argues his continued

placement on the Brady list is an ongoing violation of his constitutional rights. The Court

disagrees.

The Marion County District Attorney, and not any Defendant in this action, made an

independent decision to place Plaintiff on the Brady list. The District Attorney testified:

And frankly, in many respects, the employment determination has absolutely zero

to do with our Brady determination. . . . [O]ur Brady decision is separate and

distinct from any employment consideration . . . . Based on all the information we

had with regard to Mr. Lane at this juncture, we believed him to be dishonest. We

frankly believed that he violated criminal law. We just could not prove it to the

standard necessary in a court of law, and therefore we did not need further

information. We did not need that to be ferreted out further. We were confident in

our decision as of August 29th of 2018.

Weiner Decl. Ex. 1, 2-3.

The District Attorney noted that although Defendants informed her of the arbitration

order, it did not alter the decision to place Plaintiff on the Brady list:

My recollection is that they complied with the order—as I reviewed it, which is

they had—they were required to ask us to either review the decision or even

change the decision. They were very careful about complying with the order. That

is my recollection.

8 – OPINION AND ORDER

And at the time, again, we were—we were provided with their copy of it. So we

did look at it and review it. And we were afforded an opportunity to read it there.

We didn’t take a copy. I don’t have it. But—but my recollection is they were—

they were complying with what they had been ordered or required to do. And we

responded to them specifically, “Thank you for notifying us of this, but it does not

change our Brady determination.”

Weiner Decl. Ex. 1, 5-6.

The District Attorney provided clarification on her thought process in regard to Plaintiff’s

placement on the Brady list:

So there’s multiple levels of conduct with Mr. Lane, but first of all, the conduct,

it—the actual conduct while on duty in a police car as observed by members of

the public, of him escorting his girlfriend home, because even by his own

admission that was inappropriate and official misconduct level conduct.

His own admission was such that her headlights were out or would intermittently

go out, and so he needed to follow her home. That, in and of itself, to me, is

fraught with untruthfulness. I don’t know why you would need to follow someone

home if their headlights are out. Seems like you would want to be in front of them

to help them see their way through the darkness. And yet that, in and of itself, is

an admission of official misconduct and really an abuse of his role as a police

officer to be escorting his girlfriend home.

Then, secondarily to that, it is our belief, and it was the finding of the Sheriff’s

office and—and my determination, as well as Mr. Beglau’s that Mr. Lane lied

about that behavior in subsequent interviews, which were Garrity-compelled and

therefore not something we could use in a criminal prosecution, but nonetheless,

that he was dishonest in those—in those circumstances as well.

Weiner Decl. Ex. 1, 11-12.

The District Attorney “fundamentally disagreed with” the arbitrator’s decision. Weiner

Decl. Ex. 1, 14. Ultimately, the District Attorney stated she “made an independent, separate

interpretation and assessment of this case in this investigation. What a third party thinks about is

not relevant to my decision-making.” Weiner Decl. Ex. 1, 15.

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As the District Attorney made an independent analysis of Plaintiff’s conduct, Plaintiff’s

continued placement on the Brady list cannot establish any violation of Plaintiff’s constitutional

rights by any of the Defendants named in this action.

V. Plaintiff’s State Law Claims

Plaintiff brings state law claims for wrongful discharge, defamation, and intentional

infliction of emotional distress against the county.2

In Oregon, a Plaintiff bringing a wrongful discharge claim states a claim “(1) when the

discharge is for exercising a job-related right that reflects an important public policy; or (2) when

the discharge is for fulfilling some important public duty.” Babick v. Oregon Arena Corp., 333

Or. 401, 407 (2002) (internal citations omitted). Although Plaintiff argues that his termination

was wrongful because he was never made “whole,” he makes no argument or allegation that his

termination was related in any way to the fulfillment of any public duty or policy. Therefore,

even accepting that Plaintiff was never made whole, his wrongful discharge claim fails.

Plaintiff’s defamation claim fares no better. It is undisputed that any statements made by

Cunningham (in the report) or Meyers (in sending the report to the District Attorney) occurred in

the course of their official duties. Therefore, their statements are entitled to absolute immunity.

Chamberlain v. City of Portland, 184 Or. App. 487, 386-87 (2002).

While this is admittedly a narrow privilege, it applies under the narrow facts at issue.

Oregon Courts have extended absolute immunity to police officers conducting an internal

investigation and report. Johnson v. Brown, 193 Or. App. 375, 385 (2004) (discussing

Chamberlain and noting officer was entitled to absolute immunity as to a defamation claim when

2 Plaintiff agrees that under the Oregon Tort Claim Act, he may not bring the state claims against the individually-

named defendants. Resp. 32-33.

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officer “was required, as part of her job duties, to prepare a written report describing the

plaintiff’s conduct on an assignment that the two officers had jointly undertaken.”). Additionally,

any statements made to the District Attorney are entitled to absolute immunity due to the quasi-

judicial nature of such statements. Id. at 381 (noting “Communications protected by absolute

privilege include those made in the course of, or sufficiently incidental to, judicial and quasi-

judicial proceedings[.]”).

Finally, a Plaintiff bringing an IIED claim must establish, amongst other things, that the

“defendants’ conduct constitutes extraordinary conduct which a reasonable jury could find

beyond the farthest reaches of socially tolerable behavior.” Kraemer v. Harding, 159 Or. App.

90, 110 (1999) (internal quotations and citations omitted). Plaintiff argues:

Defendants persist in their belief Plaintiff was untruthful and discount the fact-

finding hearing at arbitration as just the opinion of the arbitrator. District Attorney

Clarkson also persists in her belief Plaintiff was untruthful which is prima facie

evidence Defendants acted with insufficient diligence in correcting her. A logical

inference a jury could make is that Defendants never intended to correct the

record, even knowing exactly how damaging the label of untruthfulness is to a

law enforcement officer.

Resp. 38.

As demonstrated above, Defendants provided the District Attorney with the arbitrator’s

decision. The District Attorney made an independent decision to keep Plaintiff on the Brady list.

As noted, the District Attorney believed Plaintiff’s explanation of tailing, as opposed to leading,

his girlfriend home due to a broken headlamp, indicated Plaintiff was being untruthful. That the

District Attorney was not swayed by the arbitrator’s findings does not somehow mean the

Defendants’ own actions were beyond the reaches of acceptable behavior. And though Plaintiff

believes Cunningham’s internal investigation was not as fair or thorough as Plaintiff would have

liked, the actions do not rise to the level necessary to support a claim of intentional infliction of

11 – OPINION AND ORDER

emotional distress. See McManus v. Auchincloss, 271 Or. App. 765, 782 (2015) (noting Plaintiff

bringing IIED claim must establish “that defendant’s actions constitute the sort of aggravated

acts that violate social norms in the workplace beyond all civilized behavior.”).

VI. Plaintiff’s Request for Leave to Amend

Plaintiff acknowledges he fails to adequately state a claim under the First Amendment or

under his “class of one” equal protection claim. Realizing this, Plaintiff seeks leave to file an

amended complaint. The time to file an amended complaint, however, passed nearly one year

ago. ECF No. 2. Discovery closed months ago. The parties deposed the witnesses long ago.

Leave to amend in these circumstances is disfavored. “Simply put, summary judgment is not a

procedural second chance to flesh out inadequate pleadings. Wasco Prods. Inc. v. Southwall

Techs, Inc., 435 F.3d 989, 992 (9th Cir. 2006) (quoting Fleming v. Lind-Waldock & Co., 922

F.2d 20, 24 (1st Cir. 1990). Allowing Plaintiff to file an amended complaint would be unduly

prejudicial to the Defendants. A response to summary judgment is not the appropriate time to

alert the Court and the Defendants that Plaintiff wishes to proceed on a theory that Defendants

retaliated against Plaintiff for engaging in the grievance process.3 Were it not for a global

pandemic, this case would have been tried already. Simply put, it is far too late for Plaintiff to

file an amended complaint based on new theories.

/ / / /

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3 Additionally, leave to amend would likely be futile, as filing a grievance and proceeding to arbitration is not a

matter of public concern entitled to First Amendment protections. Heidt v. City of McMinnville, No. 3:15-CV-00989-

SI, 2017 WL 2432150, at *5-6 (D. Or. June 5, 2017).

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CONCLUSION

Defendants’ motion for summary judgment, ECF No. 25, is GRANTED.

IT IS SO ORDERED.

DATED this 17th day of September, 2020.

_____/s/ Micahel J. McShane____

Michael McShane

United States District Judge

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