The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TODD ROBERTS,
Case No. 6:19-cv-1595-MC
Plaintiff,
v. ORDER
SPRINGFIELD UTILITY BOARD, a
Public Body, et al.,
Defendants.
_____________________________
MCSHANE, Judge:
When taking what appears to be an unscheduled vacation day from work, Plaintiff
misrepresented to his now former Employer, the Springfield Utility Board (“SUB”), the reason
for his absence. Defendant SUB hired attorney Kathy Peck to advise them with regard to
Plaintiff’s continued employment. Peck, in turn, assigned an associate attorney, Dian Rubanoff,
to conduct an investigation into Plaintiff’s conduct regarding his absence from work. Among
other claims, Plaintiff alleges that Peck and Rubanoff (collectively the “Attorney Defendants”)
violated his First Amendment rights by restricting his speech during the course of the
investigation; and that the outcome of the investigation violated his Due Process Rights.
Because the restrictions on speech were narrowly tailored to protect the integrity of a
relatively brief investigation; and because the Attorney Defendants are protected by qualified
immunity, Plaintiff’s First Amendment claim fails. Because Defendant Attorneys’ role in
Plaintiffs termination was limited to conducting a factual investigation for, and providing legal
advice to, SUB; and because Plaintiff was given notice and the opportunity to be heard,
Plaintiff’s Due Process Claim fails. Defendant Attorneys’ Motion for Summary Judgment is
GRANTED.1
BACKGROUND
Plaintiff was employed as the Safety and Environmental Coordinator for SUB. On
August 26, 2019, Plaintiff took an unscheduled day off. At 7:30 a.m. that morning, Plaintiff
emailed his supervisor, stating “I will be out all today working on the kids school/sport
registrations and such to ensure they are all ready for school next week.” Brew Decl. Ex. 4, 1;
ECF No. 28. When Plaintiff’s supervisor learned Plaintiff spent that day at the Oregon coast,
SUB began an investigation of Plaintiff for untruthfulness. As noted, SUB hired Peck to provide
legal advice and Rubanoff conducted the investigation. On September 12, 2019, SUB placed
Plaintiff on paid administrative leave when Bob Fondren hand-delivered a notice to Plaintiff. The
Notice stated:
This memorandum is to notify you that effective immediately, you are being
placed on paid administrative leave pending investigation. SUB’s decision to
place you on paid leave arises from information that raises concerns regarding
whether you have engaged in the following unacceptable conduct:
• Dishonesty regarding unscheduled time off.
While this matter is being investigated, you are prohibited from engaging in
communication in any form with any employees of SUB other than me, unless
you have received prior written permission from me for such communications.
1 Plaintiff argues he needs to depose the Attorney Defendants and needs the documents contained in his motion to
compel to adequately respond to the motion for summary judgment. Pl.’s Resp. 4. Plaintiff states: “For specific
examples of needed discovery, the Plaintiff needs the depositions of Peck and Rubanoff to ascertain where and by
what methods they got their authority to impose free speech restrictions upon the Plaintiff; what was their agreement
with SUB as to their authority; who did they talk to about the restrictions they placed upon the Plaintiff; did they
have any discussions with anyone before imposing the restrictions; did they have any discussions with anyone after
imposing the restrictions; was their conduct ratified by the other Defendants; and their knowledge of the law
justifying such restrictions.” Id. As noted, the Court previously denied Plaintiff’s motion to compel and granted the
Attorney Defendants’ motion to quash. ECF No. 49. Although Plaintiff requests discovery regarding the Attorney
Defendants’ discussions and legal advice to SUB, the Court already determined these communications are
privileged.
Any contact with SUB employees, including your supervisor, regarding this
matter will constitute gross insubordination and be subject to disciplinary action,
including immediate termination of employment. The directives above are not
intended to limit your ability to provide information on your own behalf. You will
be given an opportunity to respond to any claims made against you.
Franz Decl. Ex. 1, 1; ECF No. 38.2
On September 19, 2019, Rubanoff interviewed Plaintiff.3 Plaintiff argues Rubanoff’s
comments during that interview were a “prior restraint” in violation of his rights under the First
Amendment.4 At the outset of that interview, Rubanoff outlined her role as the investigator:
Regarding concerns that you may have engaged in dishonesty related to your
work attendance. I’d like to explain my role as an investigator. Although I am an
attorney, my assignment is to interview you and any other witnesses I deem
necessary, gather information and make conclusions about what I think actually
happened. I am unable to give legal advice to you. That’s not my role to give legal
advice to anybody in this matter. I intend to keep an open mind about the
investigation until after all of the evidence has been gathered. I take my job as an
investigator very seriously and all I care about is the truth.
* * * *
To protect the integrity of the investigation, you are restricted from discussing it
with other employees of SUB while it is ongoing, current or former employees.
You have received a separate notice of paid administrative leave, and nothing in
my introductory notes here is intended to change any instructions you were given
in that notice.
Franz Decl. Ex 3, 1-2; ECF No. 38.
2 Neither SUB nor Bob Fondren move for summary judgment. Only the Attorney Defendants move for summary
judgment. The Court determines only whether the actions of the Attorney Defendants justify summary judgment in
favor of those defendants. Whether Fondren’s September 12 notice violated Plaintiff’s constitutional rights is not at
issue in resolving the Attorney Defendants’ motion for summary judgment.
3 The first interview consisted largely of Plaintiff explaining his actions on Monday, August 26, 2019 and whether
his actions that day justified Plaintiff’s use of the day as an unscheduled day off.
4 Throughout his brief, Plaintiff seemingly infers that because SUB issued a “prior restraint,” it necessarily violated
Plaintiff’s First Amendment rights. This argument, to the extent Plaintiff makes it, fails to appreciate that a “prior
restraint” in the public employer context is “analytically distinct” from typical “prior restraint” cases. See Moonin v.
Tice, 868 F.3d 853, 857 n.1 (9th Cir. 2017) (“[Plaintiff] calls the prospective restriction at issue here a ‘prior
restraint,’ a phrase that conjures up a long line of cases in which we have held that such restraints are almost never
permissible. Because [Plaintiff’s] claims concern a policy restricting employee speech, it is analytically distinct from
claims involving archetypical prior restraints, like government licensing requirements affecting only citizen speech
or judicial orders forbidding certain speech by private parties.”).
On September 30, 2019, Plaintiff’s attorney requested, in an email to Rubanoff, that the
restriction prohibiting Plaintiff from communicating with SUB employees be lifted. Plaintiff’s
attorney stated, “I would also request that SUB remove the restriction placed on [Plaintiff] not to
talk to any employees of SUB. He cannot defend himself when SUB takes away his right to
gather information for his defense.” Franz Decl. Ex. 4, 2; ECF No. 38.
Rubanoff stated that because she acted solely as an investigator, she forwarded the
attorney’s email to Peck, the attorney providing legal advice to SUB. On October 1, 2019, Peck
sent an email to Plaintiff’s attorney noting that “SUB is also declining to lift the restriction on
[Plaintiff] from communicating with his co-workers during the investigation. He will have an
opportunity to participate in his defense in the event SUB decides to pursue a disciplinary
proceeding. In the meantime, the restriction stands.” Franz Decl. Ex. 5, 2; ECF No. 38. Plaintiff
argues this restriction violated his First Amendment rights.
On October 8, 2019, Rubanoff interviewed Plaintiff–this time in the presence of
Plaintiff’s counsel–a second time.5 During that interview, the following exchange occurred:
Dian Rubanoff: Okay. I’m going to instruct you not to communicate with any
potential witness about the information that you’ve given.
Robert Franz: Do you have authority to say that?
Dian Rubanoff: To not communicate with witnesses about the investigation?
Robert Franz: Yes.
Dian Rubanoff: Yes.
Robert Franz: Okay.
5 The second interview consisted largely of Plaintiff explaining why his statements in the first interview regarding
his actions on Monday, August 26, 2019 were not entirely accurate. At this time, the Court takes no position on
whether Plaintiff was deliberately untruthful during the first interview or whether he simply got certain dates and
times wrong due to (1) the days around the date in question consisting of a hectic time in Plaintiff’s life and/or (2)
forgetfulness caused by Plaintiff’s ADHD. The Court merely notes that many of Plaintiff’s statements during the
first interview turned out to be inaccurate.
Dian Rubanoff: Yes. Do not communicate with potential witnesses we’ve
discussed about the investigation or about the information you’ve provided in the
investigation or the information you have provided.
Robert Franz: And you’re instructing him not to do that even though the person is
not an employee of SUB?
Dian Rubanoff: I’m instructing him not to contact them, yes.
Robert Franz: Any witness even if they’re not an employee of SUB?
Dian Rubanoff: If it’s about the investigation, yeah.
Robert Franz: Okay.
Todd Roberts: Do I need to say okay?
Robert Franz: No you don’t say anything, because we’re not saying okay.
Dian Rubanoff: If you’re going to object to that then I need you to let me know
you’re objecting to that and why.
Robert Franz: I’m going to object to it, but we still might do it because we’re
being directed. If he’s being directed to do this or face discipline and you have the
authority to make that statement then we have to comply with it.
Dian Rubanoff: What is the basis of your objection?
Robert Franz: You’re instructing him not to talk to a non-employee of SUB.
Dian Rubanoff: I’m instructing him not to interfere with an investigation by
contacting witnesses about the information that he’s provided.
Robert Franz: And I don’t think you have authority to do that. Well you said you
have authority to do that, we’ll accept you have the authority to do it.
Dian Rubanoff: I’m doing it as the investigator. you want to know whether—if
he’s been directed by somebody at SUB then I will get clarification on that.
Robert Franz: Yeah because I mean he’s facing discipline for doing that, we have
no choice. But I want a directive that he faces discipline if he talks to any witness,
even if that witness is a non-employee.
Dian Rubanoff: About this investigation, because that is potentially interfering
with witness statements.
Robert Franz: Well then, then what you’re saying is, let’s just say we’re in
litigation, and you have the authority to instruct somebody not to talk to
witnesses, you can’t do that. He has a right to defend himself.
Dian Rubanoff: But we’re not in litigation.
Robert Franz: We’re probably worse than litigation because he could be
terminated. I don’t think you have the lawful authority to instruct him not to talk
about this matter with anybody else because you’re basically saying you cannot
defend yourself. You cannot contact any witness even though a non-employee.
Dian Rubanoff: He can absolutely defend himself because that is only going to
apply while I’m conducting investigation.
Robert Franz: Well how can he defend himself if he can’t talk to these people and
get statements from them to supply?
Dian Rubanoff: Well he can after I’ve completed my investigation, he can contact
them all he likes.
Franz Decl. Ex. 6, 2-4; ECF No. 38 (internal time stamps omitted). Plaintiff argues Rubanoff’s
restrictions violated his First Amendment rights.
On October 13, 2019, five days after Plaintiff’s second interview with Rubanoff,
Plaintiff’s attorney provided a list of people for Rubanoff to interview. The attorney requested of
Rubanoff:
First, you have talked Jeff Litle, and you now know that he supports the
statements of [Plaintiff]. . . .
Fourth, you need to interview [Plaintiff’s] Wife just to learn how hectic that
period of time turned out to be. You also need to interview all of [Plaintiff’s]
coworkers to learn about his credibility; to learn that they know that [Plaintiff] is
being set up and discriminated against because of his past whistle blowing; to
learn about the fact [Plaintiff] has complained to lower and upper management
about not being paid for lunches and breaks; to learn about [Plaintiff’s] comments
about the unethical conduct of the HR Director and her constant comments to
other employees about [Plaintiff’s] ADHD (his absent-mindedness and
forgetfulness) because he cannot recall events and facts; and to learn about his
blowing the whistle on violations of safety issues both within his duties and
outside of his duties.
During his employment with SUB, [Plaintiff] has regularly and frequently voiced
his concerns over serious safety, health, and environmental violations of state and
federal law, and the lack of implementation towards meeting regulatory
compliance of both state and federal law.
As all management knows, [Plaintiff] has also complained about the
mismanagement of SUB in the hiring of Cam Hanes as the Water Service Center
Superintendent and the conduct of Cam Hanes after he was promoted, and what
he has done while being the Superintendent. Cam Hanes was and is not qualified
for the position, and did not possess the qualifications of the job. SUB changed
the requirements of the qualifications needed just to get him promoted. We ask
that you interview all those employees that work for Cam Hanes to verify
[Plaintiff’s] complaints.
Because Cam Hanes is central to this investigation for comparison purposes, and
because we need to show there never has been an investigation into [Plaintiff’s]
complaints about Cam, please, as soon as possible, make Cam Hanes available for
me to interview so that I can establish the above facts, and show that [Plaintiff] is
not being treated equal. Please also make Janis Brew available for me to interview
for the purpose of establishing her knowledge of [Plaintiff’s] ADHD; for the
purpose establishing [sic] the comments she has made about [Plaintiff’s] ADHD;
and for the purpose establishing [sic] her knowledge about [Plaintiff’s] absent-
mindedness and forgetfulness, which SUB is now trying to convert to dishonesty.
Franz Decl. Ex. 7, 2-4; ECF No. 38 (certain scrivener’s errors of additional spaces omitted).
In the absence of discovery to date, Plaintiff assumes that Rubanoff did not interview any
of the persons detailed in the above email. Pl’s. Resp. 15; ECF No. 37.
On Friday, December 6, 2019, Defendant Janice Brew provided Plaintiff with a notice of
proposed termination. Brew Decl. Ex. 7; ECF No. 28. The seven-page document outlined the
policies Plaintiff was accused of violating, the results of Rubanoff’s investigation, and Brew’s
recommendation that SUB terminate Plaintiff’s employment. The letter included Brew’s
recommendation that Plaintiff violated SUB’s policy by taking “an unscheduled day off from
work without sufficient justification” without requesting advance permission. Brew Decl. Ex. 7,
7. Brew concluded:
The investigation also shows that in both circumstances described above, you
engaged in dishonesty related to your work. Both times you were untruthful to
me, and you were also untruthful during the investigation of each incident. When
confronted with information demonstrating that your statements were untrue, you
took no responsibility for your actions.
In light of the above investigation, I am recommending termination of your
employment with SUB.
Brew Decl. Ex. 7, 7.
Brew informed Plaintiff that he was entitled to a pre-termination meeting. Brew noted
that meeting was set for the following Tuesday, December 10, 2019 at 10:00 a.m. Brew stated,
“The purpose of this meeting is to give you an opportunity to respond to this proposed action and
to present any additional information before a final decision is made.” Brew Decl. Ex. 7, 7.
On December 11, 2019, Brew sent Plaintiff a Notice of Termination. The notice stated,
“You did not attend the [Pre-termination] meeting, did not contact me to seek to have the time or
place of the meeting changed and did not provide me with any written statement or materials.”
Brew Decl. Ex. 8, 1. The notice informed Plaintiff he was terminated, effective at 5:00 p.m. that
day. Finally, the notice informed Plaintiff:
You have the right to seek review of this decision as outlined in Policy 40-2:
Employee Problem Solving. You have three (3 business days to supply SUB a
written notice of your expression to exercise this right. If you elect to exercise this
right, SUB must receive a notice from you by 5:00 PM on December 16, 2019. If
you choose to initiate such a review and it reaches Level C, review by the General
Manager, you may at that point elect to have an evidentiary hearing consistent
with due process requirements if you so choose.
Brew Decl. Ex. 8, 2.
On October 6, 2019, two months before Plaintiff received the Pre-termination notice,
Plaintiff filed this action alleging Defendants violated his rights under the First Amendment as
well as his Fourteenth Amendment right to due process. Plaintiff later filed an amended
complaint bringing certain aiding and abetting claims under state law. As noted, the Attorney
Defendants move for summary judgment.
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
Plaintiff brings his First and Fourteenth Amendment claims under 42 U.S.C. § 1983. A
private person can be held liable for violating the civil rights of another under § 1983 only if that
person acted under color of state law. A person acts under the color of state law if his acts can be
“fairly attributable” to the state. Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982). To
constitute fair attribution: (1) the deprivation of rights must have a causal connection to the
exercise of “some right or privilege created by the State or by a rule of conduct imposed by the
State or by a person for whom the State is responsible,” and (2) “the party charged with the
deprivation must be a person who may fairly be said to be a state actor.” Id.
The parties disagree on whether the attorney defendants, none of whom are employees of
SUB or the state, acted under color of state law necessary for liability under § 1983. In Filarsky
v. Delia, 566 U.S. 377 (2012), the Supreme Court granted qualified immunity to an attorney in
private practice hired by a fire department to investigate a fire fighter suspected of malingering.
The fire fighter brought § 1983 claims against the fire department and the attorney, arguing the
Defendants violated his Fourth Amendment rights by entering his home during the investigation.
By holding the attorney was entitled to qualified immunity, the Court implicitly recognized that
the attorney was a state actor for the purposes of § 1983 because he was “retained by the City to
assist in conducting an official investigation into potential wrongdoing.” Id at 393-94.
In contrast, The Supreme Court has held that lawyers acting as public defenders are not
acting under color of state law while performing “traditional functions as counsel to a defendant
in a criminal proceeding.” Polk County v. Dodson, 454 U.S. 312, 325 (1981). The public
defenders were not state actors because, due to the nature of our adversarial criminal law system,
a public defender’s duties to his client opposes the state’s interests. Id. at 320-21. For similar
reasons, the Second Circuit held that “law guardians” appointed by a state to represent children
removed from their parents’ custody do not act under color of state law. Milan v. Wertheimer,
808 F.3d 961 (2nd 2015). The Milan Court analogized these law guardians to the public
defenders in Polk County, noting that “both are supplied and funded by the state, [but] each acts
according to the best interests of the client with ‘no obligation to the mission of the state.’” Id. at
964 (quoting Polk County, 454 U.S. at 320).
The Attorney Defendants here did not perform their duties in an adversarial role to the
interests of the state. Rather, the Attorney Defendants were “retained by [SUB] to assist in
conducting an official investigation into potential wrongdoing.” Filarsky, 566 U.S. at 393-94.
The restrictions the Attorney Defendants placed upon Plaintiff were reinforced with Plaintiff’s
understanding that if he violated the restrictions, he would be terminated by SUB. On these facts,
the acts of the Attorney Defendants can be “fairly attributable” to the state. Lugar, 457 U.S. at
937. Therefore, the Court assumes, without deciding, that the Attorney Defendants are state
actors for the purpose of § 1983.
As noted, Plaintiff argues the restrictions Rubanoff placed on Plaintiff during the
September 19, 2019 and October 8, 2019 interviews violated his First Amendment rights.
Similarly, Plaintiff argues Peck violated his rights by refusing, in an October 1, 2019 email, to
lift the restrictions on Plaintiff’s ability to communicate with his co-workers during the
investigation. The Court disagrees.
Public employees do not give up their constitutional right to speak on matters of public
concern merely because they work in the public sector. Pickering v. Bd. of Educ., 391 U.S. 563,
568 (1968). However, the public employee’s rights are not absolute:
At the same time it cannot be gainsaid that the State has interests as an employer
in regulating the speech of its employees that differ significantly from those it
possesses in connection with regulation of the speech of the citizenry in general.
The problem in any case is to arrive at a balance between the interests of the
[employee], as a citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees.
Id.
This balancing of the employee’s rights versus the employer’s legitimate interests is
known as the Pickering test. The first prong asks whether the restricted speech addresses a matter
of public concern, “and the second inquiry questions whether, using a balancing test, the public
employer can demonstrate that its legitimate interests outweigh the employee’s First Amendment
rights.” Gibson v. Off. of Att’y Gen., State of Cal., 561 F.3d 920, 927 (9th Cir. 2009).
As noted, Rubanoff provided the following restriction at the first interview: “To protect
the integrity of the investigation, you are restricted from discussing it with other employees of
SUB while it is ongoing, current or former employees.” Franz Decl. Ex. 3, 1-2. Plaintiff argues:
These restrictions were imposed upon the Plaintiff by Ms. Rubanoff to silence the
Plaintiff from exposing the illegal activities of Cam Hanes in being paid for not
working, and for not being qualified to do his job, which place the safety of
employees of SUB and members of the public at risk. These restrictions also
prohibited the Plaintiff from telling people who once worked for SUB of the
unethical conduct of Janis Brew, and of the hostile work environment created at
SUB as set forth by the Plaintiff in Exhibit 8. Simply stated, these restrictions by
Dian Rubanoff prohibited the Plaintiff from telling people that work at SUB, or
that once worked for SUB, of the conduct of the Plaintiff set forth in Exhibit 8.
Pl.’s Resp. Summ. J., 10; ECF No. 37.
Exhibit 8 is a 30-page exhibit containing Plaintiff’s response to interrogatories
concerning any complaints Plaintiff made during his employment. ECF No. 38-8. Many of
Plaintiff’s complaints stem from Plaintiff’s belief that SUB employee Cam Hanes was
unqualified and spent many hours each workday on personal business like running or promoting
his private enterprise. The exhibit is filled with Plaintiff’s reports of, in his view, unsafe working
conditions. For example, Plaintiff “reported tire tread in general for all fleet vehicles was below
safety standards given the environment they work in, weather conditions, and work detail.” Ex.
8, 5. Plaintiff also reported on the lack of training or certifications for SUB employees:
Reported in 7/17 that ESC and WSC field crews were not properly utilizing tag-
lines when lifting loads from a crane or service hoist. Also found cranes and
hoist’s uncertified and employees w/out proper training. Hanes and Miller failed
to supply training for employees who failed certification for over 2 years after
they were notified and Fleet cranes were finally updated with proper inspection
and labeling 1 year later. Reported to Brew.
Several employees complained there is no certification for forklift operation and I
reported to Brew and King and Miller and there was still no certification as of
9/19. . . .
Reported employee complaints about trench safety at WSC in the field and
employee lack of training and C. Hanes lack of qualifications by Operations crew
staff multiple times, and Brew stated she would inform GM Nelson. No action
was taken. . . .
I reported C. Hanes was absent or involved in personal business during safety
committees in which he was a leadership role and continually failed to do job and
or perform duties which left committee lacking and left employees unsafe.
Ex. 8, 9-10.
Speech is “a matter of public concern when it can fairly be considered to relate to ‘any
matter of political, social, or other concern to the community.’” Johnson v. Multnomah Cnty., 48
F.3d 420, 422 (9th Cir. 1995) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). Speech
alleging that public officials are not discharging government responsibilities, or are engaged in
wrongdoing or breaches of the public trust qualifies as a matter of public concern. Connick, 461
U.S. at 148. Speech is not of public concern when it addresses “individual personnel disputes and
grievances.” Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) (citation omitted).
It is, at best, debatable whether the Attorney Defendants prohibited Plaintiff from
speaking on any matters of public concern. The Attorney Defendants informed Plaintiff he was
restricted from discussing the investigation with others during the pendency of the investigation.
For instance, Rubanoff warned Plaintiff that “To protect the integrity of the investigation, you
are restricted from discussing it with other employees of SUB while it is ongoing, current or
former employees.” Franz Decl. Ex. 3, 1-2. During the second interview, Rubanoff stated, “I’m
going to instruct you not to communicate with any potential witness about the information that
you’ve given. . . . Do not communicate with potential witnesses we’ve discussed about the
investigation or about the information you’ve provided in the investigation or the information
you have provided. . . . I’m instructing him not to interfere with an investigation by contacting
witnesses about the information that he’s provided. . . . About this investigation, because that is
potentially interfering with witness statements.” Franz Decl. Ex. 6, 2-4; ECF No. 38 (internal
time stamps omitted). Peck informed Plaintiff that “SUB is also declining to lift the restriction on
[Plaintiff] from communicating with his co-workers during the investigation. He will have an
opportunity to participate in his defense in the event SUB decides to pursue a disciplinary
proceeding.” Franz Decl. Ex. 5, 2; ECF No. 38.
At the time the Attorney Defendants placed the above restrictions on Plaintiff’s ability to
speak to others about the investigation, the investigation was limited to Plaintiff’s untruthfulness
in (1) taking the unscheduled day off and (2) scheduling a training for outside of normal working
hours. In the two interviews with Rubanoff (or at least the portions of the transcript in the
record), Plaintiff not once complained about any waste in the department or any unsafe or illegal
working conditions. The interview focused solely on Plaintiff’s actions during the dates at issue,
and whether Plaintiff was truthful. In other words, the Attorney Defendants merely restricted
Plaintiff from speaking to others about his actions on the dates in question and, correspondingly,
whether Plaintiff was truthful about the events surrounding his unscheduled day off. And
Plaintiff’s attorney requested the restrictions be lifted not so that Plaintiff could raise matters of
public concerns, but to allow Plaintiff “to gather information for his defense.” Franz Decl. Ex. 4,
2. Such “individual personnel disputes and grievances” are typically not matters of public
concern. Coszalter, 320 F.3d at 973 (citation omitted).
Not until October 13, 2019, five days after Rubanoff’s second interview of Plaintiff, and
11 days after Peck’s email declining to lift the restrictions, did Plaintiff first notify the Attorney
Defendants of any allegations of waste or the argument that Plaintiff was being retaliated against
for past acts of whistleblowing. To the extent Plaintiff placed waste or mismanagement by SUB
into the investigation, the earlier restrictions from the Defendant Attorneys on discussing the
investigation with others could potentially be viewed as restricting Plaintiff from speaking about
matters of public concern.6 The Court therefore proceeds to the second Pickering prong.
Assuming that Plaintiff spoke as a private citizen on a matter of public concern:
6 Whether Plaintiff spoke on a matter of public concern is not the only factor to consider when determining if the
restrictions violated Plaintiff’s right to speak on “protected speech.” As noted, not all speech is protected. Only
speech made “in the capacity of a private citizen and not a public employee” is protected. Eng v. Cooley, 552 F.3d
1062, 1071 (9th Cir. 2009). “Statements are made in the speaker’s capacity as citizen if the speaker had no official
duty to make the questioned statements, or if the speech was not the product of performing the tasks the employee
was paid to perform.” Id. (internal quotations omitted). Many of Plaintiff’s complaints regarding unsafe working
conditions in Exhibit 8 would appear to be directly related to his job as the Safety and Environmental Coordinator
for SUB. “If the allegations demonstrate an official duty to utter the speech at issue, then the speech is unprotected,
and qualified immunity should be granted.” Id.; see Garcetti v. Ceballos, 547 U.S. 410, 426 (2006) (“We reject,
however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to
their professional duties. Our precedents do not support the existence of a constitutional cause of action behind
every statement a public employee makes in the course of doing his or her job.”). Because Plaintiff’s First
Amendment claims against the Attorney Defendants fail on the merits, the Court need not determine whether
Plaintiff spoke as a private citizen or instead as a public employee.
The question becomes whether the relevant government entity had an adequate
justification for treating the employee differently from any other member of the
general public. This consideration reflects the importance of the relationship
between the speaker’s expressions and employment. A government entity has
broader discretion to restrict speech when it acts in its role as an employer, but the
restrictions it imposes must be directed at speech that has some potential to affect
the entity’s operations.
Garcetti, 547 U.S. at 418 (internal citation omitted).
The restrictions placed upon Plaintiff by the Attorney Defendants prohibited Plaintiff
from communicating to others about the investigation while it was ongoing. Rubanoff stated,
“I’m going to instruct you not to communicate with any potential witness about the information
you’ve given. . . . Do not communicate with potential witnesses we’ve discussed about the
investigation or about the information you’ve provided in the investigation or the information
you have provided.” Franz Decl. Ex. 6, 2. As noted, the Court has serious doubts on whether the
above restriction prohibited Plaintiff from speaking on any matter of public concern. However,
even if the restrictions prohibited protected speech, any such restriction is outweighed by SUB’s
legitimate interest as an employer investigating workplace misconduct. “Government employers,
like private employers, need a significant degree of control over their employees’ words and
actions; without it, there would be little chance for the efficient provision of public services.”
Garcetti, 547 U.S. at 418. Rubanoff clearly stated SUB’s interest in restricting Plaintiff’s speech:
“I’m instructing him not to interfere with an investigation by contacting witnesses about the
information that he’s provided.” Franz Decl. Ex. 6, 3.
Perhaps because it is so obvious that the First Amendment does not prevent a public
employer from limiting its employee’s ability to interfere with an ongoing investigation of
workplace misconduct, the case law is somewhat sparse on this exact issue. Although not
mentioned by the parties, Satter v. Wa. State Dep. of Ecol., 2010 WL 2342540 (W.D. Wa. 2010)
is instructive. There, the employer placed the employee on paid leave and directed the employee
“not to contact any [DOE] employee or discuss the circumstances regarding [her] reassignment
with any [DOE] employee.” Id. at *2 (alterations in original). The employee, like Plaintiff here,
alleged the restriction was an unlawful prior restraint. The court disagreed:
In an attempt to conduct a personnel investigation, Slattery and the other DOE
employees involved in initially evaluating Ashborn’s allegations agreed that
“instructing Ms. Satter not to contact other employees during the investigation
was the only way to proceed under the circumstances.” The Court’s job is not to
decide whether the restriction on Satter’s speech was in fact the only way to
proceed. Rather, the Court’s job is to decide whether such restriction was
reasonable to effectuate their interests in light of the circumstances and whether
those interests outweigh Satter’s. The Court concludes that they do. Defendants’
instruction was a narrowly-tailored restriction intended to prevent reasonably
predicted workplace disruptions. . . . While Satter’s First Amendment rights are of
utmost importance, Defendants did not restrict her from exercising those rights
with the exception of speaking to DOE employees and even then, only intended
the restriction to last until the investigation was completed. Satter could have
voiced her concerns about DOE’s inefficiency, misuse of public funds, and
wastefulness to the governor, another public official, or the media. . . . Defendants
imposed a specific restriction on who she could speak to, pending the
investigation into her workplace conduct. Accordingly, the Court concludes that
Defendants’ legitimate interests in conducting an investigation and preventing
workplace disruption outweigh Satter’s rights.
Id. at *6-7 (internal citations omitted).
As in Satter, SUB’s interest in investigating Plaintiff’s violations of workplace policies
outweigh Plaintiff’s First Amendment rights to contact others regarding the statements he made
to Rubanoff during the pendency of the investigation. As Plaintiff was being investigated for
untruthfulness, SUB had a legitimate interest in ensuring its investigators were able to obtain
statements from potential witnesses without Plaintiff having an opportunity to coerce or
influence what those witnesses reported to the investigator. Like the restriction in Satter, the
Court is unable to discern any restriction from the Attorney Defendants prohibiting Plaintiff from
communicating with the media regarding any misuse of public funds by SUB. Finally, the
restrictions were limited to the pendency of the investigation, with Plaintiff free to contact
witnesses after Rubanoff completed her investigation. See Franz Decl. Ex. 6, 4 (“Well he can
[talk to these people and get statements from them] after I’ve completed my investigation, he can
contact them all he likes.”). The Court concludes the Attorney Defendants did not violate
Plaintiff’s First Amendment rights.7
But even assuming the restrictions here violated Plaintiff’s First Amendment rights, the
Attorney Defendants would be entitled to qualified immunity. “The doctrine of qualified
immunity shields government officials performing discretionary functions from liability for
damages ‘insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Dunn v. Castro, 621 F.3d 1196, 1198-
99 (9th Cir. 2010) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Courts must
determine whether “the preexisting law provided the defendants with ‘fair warning’ that their
conduct was unlawful. Id. at 1200 (quoting Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d
1130, 1137 (9th Cir. 2003)).
In arguing the “prior restraint” issued by the Attorney Defendants violated clearly
established law, Plaintiff relies on Barone v. City of Springfield, Or., 902 F.3d 1091 (9th Cir.
2018) and Moonin v. Tice, 868 F.3d 853 (9th Cir. 2017). See Pl.’s Resp. 17-20. In both cases,
however, the restrictions are readily distinguishable from the restrictions at issue here.
In Barone, the Plaintiff worked as the police department liaison to the City’s minority
communities. Barone, like the Plaintiff here, was placed on leave pending an investigation for
untruthfulness. Ultimately, she was fired after refusing to sign an agreement providing,
“Employee will not speak or write anything of a disparaging or negative manner related to the
Department/Organization/City of Springfield or its Employees. Employee is not prohibited from
7 The Court reaches this conclusion even recognizing the Attorney Defendants’ burden in justifying the restrictions
is particularly high “[b]ecause this ‘ban chills potential speech before it happens,’ as opposed to ‘an adverse action
taken in response to actual speech[.]’” Barone v. City of Springfield, Or., 902 F.3d 1091, 1105 (9th Cir. 2018)
(quoting U.S. v. Nat’l Treasury Emps. Union, 513 U.S. 454, 468 (1995)).
bringing forward complaints she reasonably believes involves discrimination or profiling by the
Department.” 902 F.3d at 1102. The Court noted the restriction “flatly bars Barone from
speaking negatively about the Department, the City, or their employees” and prohibited speech
Barone could make outside of her official duties. Id. at 1103. The restriction there was a “broad
and open-ended prohibition on ‘anything’ related to the Department or the City,” prohibiting
even comments “criticizing the City’s cleanliness, water quality, or tax and revenue policies.” Id.
The court noted that although the police department may well run more efficiently when
viewed in a good light by the public, such a justification is not a legitimate interest in a
democratic society. Id. at 1105-06. Second, although Barone’s future remarks could disrupt the
workplace, the broad restriction on remarks even about the City of Springfield were not closely
related to any concerns about disruption within the workplace. Id. at 1106. The court concluded:
Moreover, Appellees’ justifications are inadequate collectively because [the
restriction] is not tailored to speech that implicates the Department’s
justifications. [The restriction] makes no distinction between speech that
reasonably could be expected to disrupt the Department’s operations and speech
that will not cause a disruption. Nor is it targeted to communication conveyed
only in Barone’s official capacity or communication that would otherwise
negatively impact the Department’s effectiveness and efficiency. For example,
neither justification explains [the restriction’s] prohibition on speech concerning
“anything…related to the…City” or employees wholly unrelated to the
Department. In addition, [the restriction’s] targeted focus on only “disparaging or
negative speech renders the amended Agreement a posterchild of overt viewpoint
discrimination.
Id. (internal citations omitted) (ellipses in original).
In contrast, the restrictions here were narrowly tailored to legitimate (and obvious)
concerns that by speaking to others about the investigation, Plaintiff would unduly interfere with
it. See Franz. Decl. Ex. 6, 3 (“I’m instructing him not to interfere with an investigation by
contacting witnesses about the information that he’s provided.”). The restrictions were not
targeted to prevent only disparaging speech that would embarrass SUB. Instead, Rubanoff
instructed Plaintiff “not to communicate with any potential witness about the information you’ve
given. . . . Do not communicate with potential witnesses we’ve discussed about the investigation
or about the information you’ve provided in the investigation or the information you have
provided.” Franz Decl. Ex. 6, 2. And the restrictions lasted only so long as the investigation
remained ongoing. After Rubanoff completed the investigation, Plaintiff was free to say
whatever he wanted to say, even if his comments would paint SUB in a bad light.
Similarly, the restriction here, preventing Plaintiff with communicating with others about
an ongoing investigation, bears little resemblance to the sweeping restriction in Moonin. There,
the director of a K9 unit informed officers of a new policy permitting “NO direct contact
between K9 handlers or line employees with ANY non-departmental and non-law enforcement
entity or persons for the purpose of discussing the Nevada Highway Patrol K9 program or
interdiction program, or direct and indirect logistics therein.” Moonin, 868 F.3d at 862 (internal
brackets omitted). This broad restriction forbade whistleblowing and prohibited officers from
“convey[ing] their opinions about any aspect of the K9 or drug interdiction programs to
legislators or community groups.” Id. at 863. The court concluded:
Government employers have significant and legitimate interests in managing the
speech of their employees, particularly where the employees’ speech pertains to
their work. And policies explaining how sensitive information ordinarily should
be handled benefit both employers and employees. We make clear today,
however, that a public employer generally many not subject all employee speech
regarding a particular government program–whether fact or opinion, and whether
liable to disrupt the workplace or not–to a blanket ban. A government employer’s
policies imposing prior restraints on their employees’ speech as citizens on
matters of public concern must bear a “close and rational relationship” to the
employer’s legitimate interests, and the broad policy Tice announced did not meet
this standard.
Id. at 875.
The blanket ban on all speech of K9 officers regarding matters of interest to the public
bears little resemblance to the limitation, tailored to Plaintiff rather than all SUB employees, that
Plaintiff not interfere with an investigation while it was ongoing. “[T]he government’s burden
when seeking to justify a broad deterrent on speech that affects an entire group of employees is
greater than when it is defending an individual disciplinary decision.” Id. at 865 (quoting Tucker
v. Cal. Dep’t of Educ., 97 F.3d 1204, 1210-11 (9th Cir. 1996)). Rather than demonstrating, as
Plaintiff argues, that the Attorney Defendants were on notice that the restrictions violated
Plaintiff First Amendment rights, Moonin instead demonstrates that the restrictions at issue did
not infringe on Plaintiff’s right to free speech.
Plaintiff’s due process claim fares no better. Plaintiff argues:
[I]t is clear that Mr. Roberts was not given the opportunity for a meaningful
hearing at a meaningful time as required by the Due Process Clause.
The prohibition of the Plaintiff’s free speech lasted from September 12, 2019, to
December 11, 2019, the day the Plaintiff was terminated. During this same period
of time (September 12, 2019, to December 11, 2019), Defendants were talking to
employees of SUB and non-employees of SUB that were witnesses or potential
witnesses, gathering information and evidence from these people, knowing that
the Plaintiff was prohibited by the Defendants from doing the same thing, because
the Plaintiff was ordered not to contact or speak to employees of SUB and non-
employees of SUB. By prohibiting the Plaintiff from gathering evidence from
former and current employees of SUB and potential witnesses, Defendants made
it impossible for the Plaintiff to interview people that had evidence in his favor
and from whom the Plaintiff could obtain declarations and evidence. It was like
having a trial with the rules being one side could talk to witnesses, gather
evidence from witnesses, and present that evidence at trial. But the other side
could do none of these things. The end result is not hard to imagine. Preventing
the Plaintiff from doing the same thing the Defendants were doing was not fair or
just, and was a complete denial [of] the Plaintiff’s Due Process rights.
Pl.’s Resp. 21-22.
Putting aside the fact that the Attorney Defendants did not conduct the pre-termination
hearing or make the decision to terminate Plaintiff, Plaintiff’s argument that the Fourteenth
Amendment provides him with the right to conduct an investigation of his own choosing is
meritless. “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).
There is no dispute that Plaintiff received oral and written notice of the policies he was
being investigated of violating and had two in-person opportunities with Rubanoff where
Plaintiff was allowed to “present his side of the story.” In constitutional terms, at least with
respect to his claims against the Attorney Defendants, Plaintiff received all the process he was
due. Plaintiff has no constitutional right to force the Attorney Defendants to interview witnesses
of Plaintiff’s choosing or expand the investigation beyond the inquiry into whether Plaintiff was
untruthful regarding his unscheduled day off.
Plaintiff brings state law claims under ORS 659A.030(1)(f) and ORS 659A.030(1)(g).
ORS 659A.030(1)(f) provides that it is an unlawful employment practice “[f]or any person to
discharge, expel or otherwise discriminate against any other person because that other person has
opposed any unlawful practice, or because that other person has filed a complaint, testified or
assisted in any proceeding under this chapter or has attempted to do so.” Medina v. State, 278 Or.
App. 579, n.4 (alteration in original) (quoting ORS 659.030(1)(f)). Plaintiff must demonstrate he
(1) engaged in a protected activity; (2) defendants subjected him to a discriminatory action; and
(3) the discriminatory action was taken because Plaintiff engaged in the protected activity. Id. at
588. This claim fails because the Attorney Defendants did not subject Plaintiff to any
discriminatory action (i.e., termination or any other disciplinary action). To the extent Plaintiff
argues the restrictions on communicating with others during the investigation constitutes
discriminatory actions, the argument fails because the Attorney Defendants placed the
restrictions on Plaintiff before Plaintiff’s attorney notified the Attorney Defendants, in an
October 13, 2019 email, of any alleged protected activity taken by Plaintiff.
ORS 659A.030(1)(g) provides that it is an unlawful employment practice for “any
person, whether an employer or an employee, to aid, abet, incite, compel, or coerce” certain
prohibited acts. Multiple state and federal courts, after analyzing ORS 659A.030(1)(g), have
concluded that the statute applies only to employers or employees. See Larmanger v. Kaiser
Found. Health Plan of Nw., 805 F. Supp. 2d 1050, 1056 (D. Or. 2011); Branford v. City of
Portland, Or., No. 18CV03199, 2018 WL 11033310, at *1 (Or. Cir. May 22, 2018). The Court
finds those cases persuasive and adopts the reasoning provided there.8 Because the Attorney
Defendants are neither Plaintiff’s employer nor employees of SUB, Plaintiff’s claim fails.
CONCLSION
The attorney defendants’ Motion for Summary Judgment, ECF No. 26, is GRANTED.
IT IS SO ORDERED.
DATED this 9th day of February, 2021.
/s/ Michael McShane
Michael McShane
United States District Judge
8 Plaintiff does not address the above cases, citing instead a six-line order out of the Circuit Court for Crook County.
Franz Decl. Ex. 10. As Plaintiff’s cited case provides not one word of analysis supporting the conclusion that ORS
659A.030(1)(g) applies to “any person” rather than only an “employer or employee,” the Court does not find the
authority persuasive.