# Brooks v. Clyne

> District Court, D. Oregon · May 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10394784

## Case

- **Court:** District Court, D. Oregon
- **Decided:** May 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10394784

## How later opinions describe it (automated extraction)

- holding that a municipality is a “person” subject to liability under § 1983 when it causes a constitutional tort through “a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers”
- noting that failure to satisfy any one of the elements of the Eng test is fatal to a plaintiff’s claim for First Amendment retaliation

## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DAVID BROOKS, No. 3:19-cv-02085-HZ

Plaintiff, OPINION & ORDER

v.

DAVID CLYNE, in his individual and
official capacity; ANNA LEE, in her
individual and official capacity;
TRUMAN STONE, in his individual and
Official capacity; JOE HANNAN, in his
individual and official capacity; CITY OF
NEWBERG, a municipal corporation,

Defendants.

Daniel E. Thenell
Emerson L. Lenon
Thenell Law Group, P.C.
12909 SW 68th Parkway, Suite 290
Portland, OR 97223

Attorneys for Plaintiff
Tracy M. McGovern
Travis A. Merritt
Frohnmayer Deatherage Jamieson Moore
Armosino & McGovern
2592 East Barnett Road
Medford, OR 97504

Attorneys for Defendants Clyne,
Hannan, and City of Newberg

Ashleigh E. Edwards
John R. Barhoum
Sarah E. Tuthill-Kveton
Chock Barhoum LLP
121 SW Morrison Street, Suite 500
Portland, OR 97204

Attorneys for Defendant Lee

Kenneth S. Montoya
Rebecca A. Plaza
Law Offices of Montoya, Hisel and
Associates
901 Capitol Street NE
Salem, OR 97301

Attorneys for Defendant Stone

HERNÁNDEZ, District Judge:
Plaintiff David Brooks brings this action against the City of Newberg (“City”), City
Managers Joe Hanan and David Clyne, City Human Resources Director Anna Lee, and City
Attorney Truman Stone. Defendants previously filed Motions to Dismiss under 12(b)(6) and
Oregon’s anti-SLAPP statute, which the Court granted in part and denied in part. Upon leave of
the Court, Plaintiff filed a Second Amended Complaint (“SAC”) bringing claims under 42
U.S.C. § 1983 for retaliation against free speech in violation of the First Amendment and
violation of Fourteenth Amendment Equal Protection Clause against all Defendants. Plaintiff
also brings state statutory claims against the City for retaliation against a whistleblower, claims
against the City for intentional infliction of emotional distress and negligent hiring, and a
defamation claim against Defendant Lee. Plaintiff has since withdrawn his defamation claim
against Defendant Lee and his equal protection claim against Defendants Lee and Stone.
Defendants move for summary judgment on all remaining claims.1 The Court grants Defendants’
motions.

BACKGROUND
Plaintiff filed this action on December 23, 2019. Plaintiff was hired as the City’s Director
of Information Technology (“IT”) in 2002 and remained in this role until the IT Department was
restructured in 2020. Second Am. Compl. (“SAC”) ¶ 13, ECF 66. Plaintiff has also served as a
reserve officer for the Newberg/Dundee Police Department since 2003. SAC ¶ 13. In his role as
IT director, Plaintiff reported directly to the City Manager. Defendant Hanan was City Manager
from June 2016 to July 2019, and Defendant Clyne was interim City Manager from July 2019 to
February 2020. Defendant Lee was hired as the City’s Director of Human Resources (“HR”) in
2016, and Defendant Stone was the City Attorney from September 2013 to December 2020.

Neither the City Attorney nor the HR Director have direct supervisory authority over the IT
Director. Stone Decl. ¶ 4.
Animosity between Plaintiff and Defendants began in 2015. When the City Manager at
that time raised allegations against Newberg Police Chief Brian Casey, Plaintiff was asked to
search for documents related to the investigation. SAC ¶ 19. Plaintiff alleges that Defendant
Stone became angry with him when Plaintiff revealed to the City Council that Stone was

1 Defendants Lee and Stone each bring individual motions for summary judgment separate from
the motion filed by the City, Defendant Hanan, and Defendant Clyne.
concealing a “trove of documents.” SAC ¶ 19. Plaintiff claims that the City Manager told him
that “he should watch his back and that Defendant Stone was out to get him.” SAC ¶ 19.
In June 2016, Defendant Hannah, who had just assumed the position of City Manager,
hired Defendant Lee to be the City’s HR Director. Pl. Ex. 6 (“Hannah Dep.”) 23:1-20, ECF
104-6. Plaintiff, who served on Defendant Lee’s interview panel, objected to the City hiring her,

claiming that Hannan failed to conduct an adequate background check and failed to contact her
references and previous employers. Pl. Ex. 1 (“Brooks Dep.”) 255:1-4, ECF 104-1.
Lee had previously been the HR Director for the City of Sherwood. In 2012, Lee had a
performance review by her supervisors at the City of Sherwood, who noted that her job
performance was “unsatisfactory.” Pl. Ex. 9, ECF 104-9. The review stated that Lee became
“argumentative” during one incident, she expressed “unsolicited strong opinions” about
candidates during the process of hiring a new City Manager, and she “has a reputation for not
keep confidential information confidential. Pl. Ex. 9. The evaluation also noted that Lee “does an
excellent job with training,” “typically does a good job” with the citywide hiring process, and

“has cooperative relationships and dysfunctional relationships with other City staff members.”
Pl. Ex. 9. There is no record of Hanan or anyone else at the City reviewing this performance
evaluation before hiring Lee.
The City did contact at least three of Lee’s references. Handwritten notes made by an
unknown author describe comments from Defendant Lee’s references named “Ron Ruecker,”
“Craig,” and “Kristen.” Def. Ex. 11, ECF 95-11. Comments include “even keeled,” “good
judgment, honesty, to the point,” “patience wears thin,” “very high expectations,” “independent
thinker, stands behind her beliefs,” “does the right thing,” and “good relationship w/ boss.” Def.
Ex. 11.
In December 2016, Defendant Lee and the City began the recruitment process to hire an
assistant for the HR Department. SAC ¶ 21. The City hired Jennifer Ortiz in February 2017. SAC
¶ 22. Greg Patton, a close personal friend of Police Chief Casey, had also applied and
interviewed for the position. SAC ¶ 21. After he did not get the job, Patton sued the City,
alleging racial discrimination in the hiring process. Patton’s attorney first sent a public records

request in March 2017 and then sent a “tort claim and preservation notice” to the City on April
26, 2017. Def. Ex. 4, ECF 96-4. Defendant Stone emailed the preservation notice to Plaintiff,
Hannan, and Lee and told them to “take whatever steps necessary” to preserve all relevant
documents. Stone Decl. Ex. 1, ECF 90-1. While searching for documents to preserve, Plaintiff
found an excel file, entitled “Applicant Tracking – HR Assistant.xlsx” that had been modified by
Lee’s user account three times after the new HR Assistant was hired. Pl. Ex. 25 (“Pl. Resp.
Interrog.”) at 6, ECF 104-25. One modification, made by Lee’s user account, occurred on April
27, 2017, after the City had received the preservation notice for the Patton suit. Id. at 6. Plaintiff
met with Stone and Hannan and requested permission to freeze Lee’s access to the file and pull

an older version of the file. Id. at 7-8. Stone and Hannan denied Plaintiff’s request. On May 2,
2017, Stone emailed Plaintiff and reiterated that the IT team “should search for and retain any
information which appears relevant to Mr. Patton’s claim of discrimination in hiring.” Pl. Ex. 13,
ECF 104-13. In that same email, Stone stated: “You should not alter your procedures for system
backups or archiving.” Pl. Ex. 13. Stone confirmed this directive in a subsequent email, even
after he was informed by an IT employee that his order would lead to overwriting of backup
tapes and loss of historical data. Pl. Ex. 13. Plaintiff alleges that Stone’s directive constituted an
order for Plaintiff to allow the destruction of potential historical evidence contained on the
backup tapes, including an unmodified version of the Applicant Tracking – HR Assistant file.
Def. Ex. 5 (“Brooks Dep.”) 79:20-80:13, ECF 96-5.
Then, in May 2017, Plaintiff met with Newberg City Councilor Denise Bacon and told
her about his concerns that the City Manager, HR Director, and City Attorney all contributed to
the potential destruction of evidence for the Patton litigation. Pl. Resp. Interrog. at 10. Plaintiff

also met with City Councilors Patrick Johnson and Stephen McKinney in December 2018 to
convey these concerns about the City’s failure to preserve documents. Id. at 10-11. Afterward, on
December 8, 2017, Defendant Hannan met with Plaintiff and admonished him for “violating the
chain of command” by speaking to City Councilors about his concerns. Id. at 11.
In July 2017, Defendant Lee reported to the City Public Works Department that a lock on
an HR file cabinet had been broken. SAC ¶ 45. Lee told Defendants Stone and Hannan about the
broken lock, but she did report it to the Newberg Police. SAC ¶ 45. In November 2017, Plaintiff
learned about the broken file cabinet lock from the director of Public Works. Brooks Dep.
175:20-25. Plaintiff spoke with Defendant Stone, who confirmed that he knew about the

incident. Brooks Dep. 333:13-18. Plaintiff then reported the broken lock incident to Police Chief
Casey and Police Captain Jeff Kosmicki, who requested an investigation into the incident by the
Oregon State Police. SAC ¶ 50. Sometime, in December 2017 or January 2018, Plaintiff
discovered an email from Stone’s assistant, Robin Steele, to Defendant Lee, which informed Lee
that Plaintiff had reported the broken lock to police and stated: “It appears Brooks has inserted
himself into the Patton matter.” Brooks Dep. 115:4-116:19.
In January 2018, upon request from the Newberg Police Department, Detective Ted
Moisan of the Oregon State Police opened an investigation into the broken lock incident. SAC ¶
58. When she was interviewed as part investigation, Lee made a statement insinuating that Chief
Casey may have been responsible for the broken lock so that he could obtain information that
would help his friend Patton with his litigation against the City. SAC ¶ 61. In September 2018,
after the investigation was completed, Detective Moisan referred his report to the Yamhill
County District Attorney, who declined to bring charges against Lee or anyone else. SAC ¶ 72.
Deposition testimony taken for the Patton lawsuit revealed that Plaintiff had exchanged

text messages from his personal phone with a City Councilor about the modifications made to
the Applicant Tracking – HR Applicant file. Stone Decl. ¶ 5, ECF 90. Plaintiff did not report or
preserve these text messages as required by the Patton preservation notice. Id. Defendant Stone
asked Defendant Hannan to investigate Plaintiff for failing to preserve the texts. SAC ¶ 75. In
April 2019, Hannan repeatedly asked Plaintiff about the text messages, but did not launch an
investigation. SAC ¶ 75; Brooks Dep. 404:7-18.
Also in April 2019, Newberg City Mayor Rick Rogers met with Chief Casey, Defendant
Lee, Defendant Stone, and Plaintiff regarding intra-staff issues and asked each of them to sign a
Workplace Conduct Agreement. Pl. Ex. 19, ECF 104-19; Pl. Ex. 20, ECF 104-20. The purpose

of the Agreement was “to memorialize the level of civility and cooperation the City and the City
Manager wishes to see among the Employees, and to develop a framework for future
communications and interactions among them.” Pl. Ex. 20. Plaintiff refused to sign the
Agreement. SAC ¶ 76.
In May 2019, Defendant Lee filed a written complaint alleging harassment against Police
Chief Casey, Police Captain Kosmicki, Plaintiff, and Defendants Stone and Hannan. Def. Ex. 3,
ECF 96-3. The “Harassment” section of the City of Newberg Employee Manual provides: “All
complaints of harassment will be investigated promptly and impartially.” Def. Ex. 8, ECF 96-8.
The City retained an outside investigator, Heather Martin, to conduct a formal investigation into
Lee’s complaints against the five City employees, including Plaintiff. Def. Ex. 3. Plaintiff
received a “Respondent Notification,” dated June 5, 2019, which informed him that he was a
subject of the investigation, and “[i]f these allegations are sustained, they will likely lead to
disciplinary action up to and including termination of employment.” Pl. Ex. 17, ECF 104-17.
Martin completed the investigation and submitted her report to the City on October 22, 2019.

Def. Ex. 3. Among many other findings, the Martin Report found that Plaintiff did not make a
false police report or harass Lee when he reported the broken file cabinet lock. Def Ex. 3. The
Martin Report did find that Plaintiff had improperly disclosed confidential documents to City
councilpersons. Def. Ex. 3. But the Martin Report concluded that Plaintiff had violated no City
policies and, therefore, he was not subject to discipline by the City. Def. Ex. 3. On November 4,
2019, the City Council adopted the Martin Report. SAC ¶ 85. The City later issued press release
and published a redacted version of the Report. SAC ¶ 86; Pl. Ex. 18, ECF 104-18. The press
release included a quote from Defendant Clyne stating, “[t]here are personnel issues that need
addressing,” but it did not mention Plaintiff by name. Pl. Ex. 18.

In March 2018, Plaintiff met with Defendant Hannan and Chief Casey to discuss Plaintiff
doing some fill-in forensic work for the police department along with his IT job. Pl. Resp.
Interrog. at 15. From 2003 to 2012, before Hannan became City Manager, Plaintiff had
performed forensic work for the City on top of his IT role. Id. He received 5% “incentive pay”
during that time in addition to his IT salary. Id. In 2018, when he sought to perform forensic
work again, he asked Defendant Hannan for similar incentive pay. Plaintiff alleges that Hannan
promised that he would receive incentive pay for his forensic work, but Hannan denies making
such a promise. Brooks Dep. 231:8-232:8; Pl. Ex. 6 (“Hannan Dep.”) 90:2-91:12, ECF 104-6.
When Defendant Clyne assumed the position of interim City Manager, he was unaware of any
agreement to provide Plaintiff with additional pay on top of his IT salary. Pl. Ex. 22, ECF 104-
22. In November 2019, when Plaintiff asked Defendant Clyne about additional incentive pay,
Clyne denied his request. Pl. Ex. 22.
Before leaving his interim City Manager position in February 2020, Defendant Clyne
made a plan to hire an assistant City Manager and restructure the City departments. The

restructuring eliminated IT as a director-led department and removed Plaintiff’s director position
with the City. Plaintiff remained employed in the IT department, his salary remained at the top of
the range for an IT Director, and his salary and benefits were not reduced with this change.
Brooks Dep. 196:10-18, 204:19-22.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”
showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927–28
(9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the
pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218
(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the
light most favorable to the nonmoving party. Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108,
1112 (9th Cir. 2011). If the factual context makes the nonmoving party’s claim as to the
existence of a material issue of fact implausible, that party must come forward with more

persuasive evidence to support its claim than would otherwise be necessary. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
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I. Claims Under 42 U.S.C. § 1983
A. First Amendment Retaliation
Plaintiff brings claims against all Defendants under 42 U.S.C. § 1983 for retaliation
against his First Amendment right to free speech. Defendants move for summary judgment,
arguing that Plaintiff failed to establish the necessary elements for his retaliation claim in the
context of public employment.
“When a government employee exercises his protected right of free expression, the
government cannot use the employment relationship as a means to retaliate for that expression.”
Coszalter v. City of Salem, 320 F.3d 968, 974 (9th Cir. 2003). The Ninth Circuit analyzes First
Amendment retaliation claims in the public employment setting under the framework established
by Pickering v. Board of Education, 391 U.S. 563 (1968). Under Pickering, courts evaluate
restraints on public speech by balancing “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.” Oyama v.
Univ. of Hawaii, 813 F.3d 850, 860 (9th Cir. 2015) (quoting Pickering, 391 U.S. at 568). To

establish retaliation by a public employer, a plaintiff must show that (1) they spoke as a private
citizen and not in their official capacity as a public employee; (2) they spoke on a matter of
public concern; (3) the plaintiff’s protected speech was a substantial motivating factor in the
employer’s adverse action; (4) the employer did not have an adequate justification for treating
the plaintiff differently than members of the general public; and (5) the employer would not have
taken the adverse employment action absent the protected speech. Eng v. Cooley, 552 F.3d 1062,
1070 (9th Cir. 2009). The plaintiff bears the burden of proving the first three elements. Id. at
1070-71. If the plaintiff passes the first three steps, the “burden shifts” to the defendant to
establish, based on the last two elements, that their “administrative interests outweigh the

employee’s First Amendment rights.” Id. at 1071 (quoting Thomas v. City of Beaverton, 379
F.3d 802, 808 (9th Cir. 2004)).
Plaintiff alleges his protected speech against which Defendants retaliated include: (1) his
reports to City Councilors that Defendant Lee modified the Applicant Tracking-HR Assistant file
and that Defendant Stone allowed spoliation of evidence; (2) his reports to Newberg City Police
about the alleged break-in to the HR file cabinet; and (3) his reports to Dr. Detective Moisan
during the Oregon State Police investigation into the alleged spoliation and break-in.
As to the first element, Defendants argue that Plaintiff spoke in his capacity as a public
employee rather than a private citizen when he reported allegations of misconduct to City
Councilors. Whether a plaintiff spoke as a public employee or a private citizen “presents a mixed
question of law and fact.” Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1129
(9th Cir. 2008). “Where an employee has an official duty to speak, or his speech is the product of
performing the tasks the employee is paid to perform, the speech is spoken in his capacity as a
public employee.” Shepard v. City of Portland, 829 F. Supp. 2d 940, 967 (D. Or. 2011). But if

the employee’s speech was not part of their official duties or tasks the employee was paid to
perform, the employee spoke as a private citizen. Freitag v. Ayers, 468 F.3d 528, 544 (9th Cir.
2006).
Defendants rely on Plaintiff’s deposition statement that, as a City employee, he believed
he had a “duty” to report the misconduct he witnessed. But Defendants acknowledge that
Plaintiff went outside the chain of command when he revealed alleged wrongdoing to City
Councilors. See Greisen v. Hanken, 925 F.3d 1097, 1111 (9th Cir. 2019) (holding that an
employee more than likely speaks as private citizen when they speak about their concerns to
persons outside their chain of command). Revealing to City Councilors that City employees had

manipulated and destroyed evidence related to a pending suit was not part of Plaintiff’s official
duties as IT Director. See id. (noting that when a public employee raises “broad concerns about
corruption or systemic abuse,” such complaints cannot reasonably be classified as within the job
duties of the average public employee). Rather, Plaintiff satisfied his responsibility as a private
citizen by bringing these alleged wrongful actions within the City government to light. See
Freitag, 468 F.3d 528 (“[I]t was [the employee’s] responsibility as a citizen to expose such
official malfeasance to broader scrutiny.”) (emphasis added). Plaintiff’s statement that he had a
“duty” to report misconduct does not show that his discussions with City Councilors fell within
his official duties as a City employee. At minimum, Plaintiff raises an issue of disputed fact as to
whether he spoke as a private citizen. Thus, Plaintiff satisfies the first element of his First
Amendment retaliation claim.
As to the second element, “[w]hether speech is a matter of public concern is a question of
law, determined by the court[.]” Greisen, 925 F.3d at 1109. Speech involves a matter of public
concern when it relates to “any matter of political, social, or other concern to the community.”

Connick v. Myers, 461 U.S. 138, 146 (1983). Speech that “seeks to bring to light actual or
potential wrongdoing or breach of public trust” meets these criteria. Id. at 148. “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.” Allen v. Scribner, 812 F.2d 426, 431 (9th Cir. 1987)
(internal quotation and citation omitted). But speech that involves “individual personnel disputes
and grievances” is not a matter of public concern. McKinley v. City of Eloy, 705 F.2d 1110, 1114
(9th Cir. 1983).
Defendants argue that Plaintiff does not provide sufficient evidence to support his

allegations of wrongdoing within the City government. But whether Plaintiff can prove
wrongdoing is not the issue. Plaintiff engaged in protected speech when he spoke to City
Councilors about what he reasonably perceived to be spoliation of evidence by City employees.
See Thomas, 379 F.3d at 809 (“Unlawful conduct by a government employee or illegal activity
within a government agency is a matter of public concern.”). Potential unlawful activity by
Defendants Lee and Stone are matters of concern to the public. Plaintiff’s spoke on a matter of
public concern when he brought his concerns about unlawful activity to City Councilors.
Next, Plaintiff bears the burden of showing that his protected speech was a “substantial or
motivating factor in the adverse action” taken against him by Defendants. Greisen, 925 F.3d at
1113. This third element “is purely a question of fact.” Eng, 552 F.3d at 1071. But as a threshold
matter, Plaintiff must show that Defendants took some adverse employment action against him.
In other words, Plaintiff must show that he suffered a loss of some “governmental benefit or
privilege” in retaliation for his protected speech. Hyland v. Wonder, 972 F.2d 1129, 1134-35 (9th
Cir. 1992). “To constitute an adverse action, a government act of retaliation need not be severe

and it need not be a of a certain kind.” Coszalter, 320 F.3d at 975. The relevant inquiry is
whether the employer has taken “action designed to retaliate against and chill political
expression.” Thomas v. Carpenter, 881 F.2d 828, 829 (9th Cir. 1989).
Plaintiff alleges that the adverse actions against by Defendants were: (1) an investigation
into allegations of harassment by Defendant Lee; (2) Defendant Hannan chastising him for
speaking outside the chain of command and “harassing” him for failing to preserve text
messages; (3) Defendant Lee excluding him from union bargaining meetings; (4) Defendants
Hannan and Clyne denying him previously promised “incentive pay” for forensic work he would
do in addition to his official job duties as IT director; and (5) Defendant Clyne removing him

from his Director level position. Plaintiff does not meet his burden of showing that these alleged
acts by Defendants were adverse employment actions against him.
First, the “retaliatory investigation” alleged by Plaintiff was undertaken in response to a
formal written complaint of harassment by Defendant Lee. Defendant Lee submitted a written
complaint alleging that Plaintiff, Chief Casey, and Police Captain Kosmicki conspired to harass
her, Defendants Hannan and Stone failed to take appropriate action when she reported
harassment, and Defendant Hannan retaliated against her for reporting the harassment. The
City’s “Harassment in Personnel Manual” states:
If you believe that you have been harassed, have witnessed harassment or
discrimination, violence at work, or suspect any violation of our policies, you must
immediately report the matter to your supervisor, the next management level or to
the Human Resources Manager. The supervisor/HR Manager is responsible for
ensuring that all complaints are promptly and thoroughly investigated without
prejudice or retaliation.
Def. Ex. 12. Thus, when he received Lee’s formal complaint, Defendant Hannan had a
duty to investigate the complaint. The City engaged an outside investigator, who
evaluated the conduct of Plaintiff and the other named City employees, including
Defendants Hannan and Stone. After a thorough investigation, the investigative report
concluded that Plaintiff had committed some wrongful acts but need not be subject to
discipline. Plaintiff was not disciplined.
Plaintiff relies on White v. Taylor, No. 6:18-cv-00550-MK, 2020 WL 5649629
(D. Or. July 2, 2020), findings and recommendation adopted, 2020 WL 5649725 (D. Or.
Sept. 22, 2020) to argue that merely subjecting an employee to an investigation can be
adverse employment action. But in White, this Court found an adverse employment
action where the employee, along with being investigated, was placed on administrative
leave and ultimately terminated. Id. at *14. Similarly, the Ninth Circuit found that a
hospital had engaged in an adverse employment against a doctor when it not only
investigated him, but also refused to rescind his resignation and filed a report with state
and federal authorities that rendered him unemployable. Ulrich v. City and Cnty. of San
Francisco, 308 F.3d 968, 977 (9th Cir. 2002). Neither White nor Ulrich support
Plaintiff’s contention that the City’s investigation into Lee’s harassment complaint,
which resulted in no material consequences to Plaintiff, was an adverse employment
action.

Plaintiff’s claim that the investigation leading to the Martin Report was a
retaliatory adverse employment action suffers from another problem—the investigation
was not directed solely at him. In fact, Lee’s co-defendants Hannan and Stone were also
subjects of the investigation. Thus, Plaintiff has not shown that the City’s broad
investigation into Lee’s harassment complaint alone, without more, constitutes an adverse
action on the part of the City or any of the individual Defendants.
Second, Plaintiff alleges that Defendant Hannan took an adverse employment action

against him by admonishing him for speaking directly to City Councilors about his concerns over
the City’s failure to preserve evidence. On December 8, 2017, Defendant Hannan scolded
Plaintiff for not following the chain of command. Plaintiff makes the threadbare allegation that
during this conversation, Hannan “threatened” him with “discipline.” But Plaintiff does not
describe the threats or say what disciplinary action was threatened. Similarly, Plaintiff vaguely
complains that Hannan “repeatedly questioned” him about deleting text messages relevant to the
Patton lawsuit and threatened to initiate an investigation. Plaintiff was not subjected to an
investigation over the deleted text messages, and no disciplinary action was taken against him.
Plaintiff’s nonspecific allegations against Defendant Hannan do not support his claim that either

the City or Defendant Hannan took an adverse employment action against him in retaliation for
exercising his First Amendment rights.
Third, Plaintiff claims that Defendant Lee excluded him from union bargaining meetings
as a form of retaliation. Plaintiff again makes threadbare allegations and presents no facts to
support his claim. Plaintiff does not explain whether he was barred from attending the meetings
or simply not informed about them. Nor does Plaintiff state how many meetings he missed. Once
Lee was told that she should include Plaintiff, he was invited to the meetings. Plaintiff also does
not claim that the union bargaining meetings were part of his job duties. In addition, as Plaintiff
and Lee were each the head of a City Department, they were co-equal employees. Because Lee
has no supervisory authority over Plaintiff, her individual actions cannot be an adverse action on
the part of Plaintiff’s employer.
Lastly, Plaintiff alleges that Defendant Clyne denied him incentive pay for outside work
as a forensic investigator with the Newberg Police Department and removed him from his
director level IT position. Plaintiff claims that, in May 2018, Defendant Hannan promised that he

would receive additional incentive pay. Plaintiff never received the additional pay. Defendant
Hannan denies making this promise, and Plaintiff presents no evidence of such an agreement.
But even viewing the facts in the light most favorable to Plaintiff and accepting his allegations as
true, Plaintiff cannot show that denial of this additional salary was an adverse employment
action. When Plaintiff asked Hannan’s successor, Defendant Clyne for the incentive pay, he
admitted that Clyne was “probably not aware of” Hannan’s alleged promise. Pl. Ex. 22. When
Clyne assumed the role of interim City Manager, he had no duty to honor any promise made by
his predecessor.
As to Plaintiff’s removal from his director-level position, Plaintiff presents no evidence

that restructuring within the City government was directed at him. Defendant Clyne formulated a
plan to restructure the entire department, which would affect anyone who was hired to lead IT
for the City, not just Plaintiff. Plaintiff concedes that he was not the only employee affected by
the restructuring. Thus, Plaintiff does not show that Clyne took an adverse action directed at him.
Nor can Plaintiff show causation—Clyne was not employed by the City at the time Plaintiff
engaged in protected speech and was not hired as interim City Manager until more than two
years later. Thus, even viewing the facts in his favor, Plaintiff cannot show that Defendant Clyne
denying him additional incentive pay and restructuring of the IT Department were actions taken
in retaliation against him for engaging in speech protected by the First Amendment.
Overall, the Court finds that the alleged adverse employment actions asserted by Plaintiff
do not rise beyond trivial harms and would not be expected to deter an employee from engaging
in protected speech. Employer actions “that cause no materially significant disadvantage” to the
employee “are insufficient to establish the adverse conduct required to make a prima facie case
of First Amendment retaliation.” Meyers v. Starke, 420 F.3d 738, 744 (8th Cir. 2005). The

actions by Defendants did not materially disadvantage Plaintiff and did not deter him from
exercising his First Amendment rights. See Coszalter, 320 F.3d at 975, 976. Plaintiff continued
to work as IT Director for the City until his department was restructured, he was never
suspended or placed on probation, and he continued to receive the same salary and benefits. And
even after he was admonished by Defendant Hannan, he continued to speak about the City’s
failure to preserve evidence and failure to report the file cabinet break-in. Plaintiff cooperated
with the Oregon State Police investigation into these incidents and does not show that
Defendants’ actions deterred him from continuing to speak about his concerns.
Because Plaintiff cannot make the requisite showing that Defendants took an adverse

employment action against him, he does not satisfy the third element of the Eng test, and his
First Amendment retaliation claim fails. See Dahlia v. Rodriquez, 735 F.3d 1060, 1067 n.4 (9th
Cir. 2013) (noting that failure to satisfy any one of the elements of the Eng test is fatal to a
plaintiff’s claim for First Amendment retaliation). Neither Plaintiff nor Defendants proffer any
arguments as to the fourth and fifth elements of Plaintiff’s First Amendment retaliation claim.
Thus, the Court need not address these remaining Pickering balancing elements. The Court
grants summary judgment for Defendants on Plaintiff’s First Amendment retaliation claim.
B. Fourteenth Amendment Equal Protection Violation
Government action violates equal protection when it disadvantages some suspect class of
persons or impinges upon a fundamental right protected by the Constitution. San Antonio Indep.
Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973). Federal courts will generally uphold challenged
government action if it “neither burdens a fundamental right nor targets a suspect class . . . so

long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U.S. 620, 631
(1996).
Plaintiff does not allege that he is a member of a suspect class. But Plaintiff claims that
he was “subjected to treatment for his participation in protected activity which was different than
other similarly situated employees.” SAC ¶ 11. Plaintiff argues that when Defendant Lee made a
complaint alleging harassment, Defendant Hannan and the City conducted a formal
investigation. But Plaintiff claims that his complaints to Hannan about harassment did not lead to
an investigation.
When an equal protection claim is premised on unique treatment rather than on a

classification, the Supreme Court has described it as a “class of one” claim. Vill. of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000) (per curiam). A class-of-one equal protection claim may lie
where “a plaintiff alleges she has been intentionally treated differently from others similarly
situated and there is no rational basis for the difference in treatment.” Id. But the Ninth Circuit
has held that “[t]he class-of-one theory of equal protection is [a] constitutional area where the
rights of public employees should not be as expansive as the rights of ordinary citizens.”
Engquist v. Or. Dept. of Agric., 478 F.3d 985, 995 (9th Cir. 2007), aff’d sub nom., 553 U.S. 591
(2008). The government as an employer has “far broader powers than does the government as
sovereign,” and the rights of public employees are limited as compared to ordinary citizens. Id. at
994 (quoting Waters v. Churchill, 511 U.S. 661, 667 (1994)). Thus, a “class-of-one theory of
equal protection is inapplicable to decisions made by public employers.” Id. at 996. Plaintiff’s
Fourteenth Amendment equal protection claim fails as a matter of law.
Even if Plaintiff could bring a “class-of-one” claim, he fails to show how he was treated
differently from a similarly situated employee. Unlike Defendant Lee, Plaintiff never filed a

formal harassment complaint. Plaintiff complained to Defendant Hannan that Lee was harassing
him by “grilling one of his employees in an effort to dig up dirt on the IT Department, and
Plaintiff in particular.” Pl. Resp. 26, ECF 102. Defendant Hannan then addressed the issue with
Plaintiff and Lee. The City did not conduct a formal investigation because Plaintiff did not bring
a formal harassment complaint. Plaintiff’s non-specific allegations do not show his right to equal
protection was violated, even if such a claim were legally cognizable. The Court grants summary
judgment for Defendants on Plaintiff’s equal protection claim.
C. Qualified Immunity
Defendants Stone, Hannan, and Clyne each argue that they are entitled to qualified

immunity on Plaintiff’s constitutional claims. A defendant is entitled to qualified immunity if
their conduct “does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald¸ 457 U.S. 800, 818 (1982). The
qualified immunity analysis requires a court to address two questions: (1) whether the facts
alleged or shown by the plaintiff establish a constitutional violation and (2) whether the right at
issue was clearly established at the time. Saucier v. Katz, 533 U.S. 194, 201 (2001). The right
must have been clearly established at the time of the defendant’s alleged misconduct, so that
reasonable official would have understood that what he or she was doing under the
circumstances violated that right. Wilson v. Layne, 526 U.S. 603, 615 (1999).
Here, the facts do not establish that Plaintiff suffered a constitutional violation as to either
his First Amendment retaliation claim or his Fourteenth Amendment equal protection claim.
Because Plaintiff has not shown that his constitutional rights were violated, the Court need not
address the second prong of the qualified immunity analysis. Because Defendants did not violate
Plaintiff’s constitutional rights, they could not have violated constitutional rights that were

clearly established. Defendants Stone, Hannan, and Clyne are entitled to qualified immunity.
D. Monell Liability
Plaintiff asserts Monell liability against the City based on his First Amendment retaliation
claim. For a municipality to be liable under 42 U.S.C. § 1983, a plaintiff must show that a
municipal custom or policy caused the violation of their constitutional rights. Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 690 (1978) (holding that a municipality is a “person” subject to
liability under § 1983 when it causes a constitutional tort through “a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers”). The
municipality itself must cause the constitutional deprivation and may not be held vicariously

liable for the unconstitutional acts of its employees under a respondeat superior theory. Id.; see
City of Canton v. Harris, 489 U.S. 378, 385 (1989) (requiring “a direct causal link between a
municipal policy or custom and the alleged constitutional deprivation”). The Ninth Circuit has
held that a plaintiff may establish municipal liability under Monell in one of three ways: (1) the
government official “committed the alleged constitutional violation pursuant to a formal
governmental policy or a longstanding practice or custom which constitutes the standard
operating procedure of the local governmental entity,” (2) “the individual who committed the
constitutional tort was an official with final policy-making authority,” or (3) “an official with
final policy-making authority ratified a subordinate's unconstitutional decision or action and the
basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (citations omitted).
Plaintiff claims that (1) Hannan and Clyne were final policy makers for the City related
to all employment matters and (2) Defendant’s retaliatory investigation of Plaintiff was ratified
by the City Council. But because Plaintiff cannot show that Hannan, Clyne, or the other

individual Defendants violated his First Amendment rights, there can be no liability for the City
under Monell. Thus, the Court grants summary judgment for the City on Plaintiff’s Monell claim.
II. State Statutory Claims
Plaintiff brings five claims against the City under Oregon whistleblower laws. Oregon
statutes prohibit employers from retaliating against employees who publicly reveal alleged
wrongdoing. In moving for summary judgment, Defendants assert that these claims were not
asserted within the required one-year statute of limitations. Defendants also argue that Plaintiff
cannot establish a causal connection between his whistleblowing activity and the City’s alleged
retaliatory acts.

A. Statute of Limitations
Defendants assert that Plaintiff’s third, fourth, fifth, sixth and seventh claims are time
barred under Oregon Revised Statute (“O.R.S.”) § 659.875, which provides that a civil action
under O.R.S. 659A.885 must be commenced within one year of the alleged unlawful
employment action. O.R.S. 659A.885 authorizes civil actions for unlawful employment practices
under Oregon statute, including actions claiming violations of O.R.S. 659A.199 (prohibiting
retaliation by an employer against an employee whistleblower), O.R.S. 659A.203 (prohibiting
retaliation by a public or nonprofit employer against an employee whistleblower), O.R.S.
659A.218 (prohibiting a public employer from disclosing the identity of a whistleblower), and
O.R.S. 659A.230 (prohibiting retaliation against an employee who aids in criminal or civil
proceedings).
Plaintiff filed this action on December 23, 2019. Therefore, the alleged unlawful
employment practice that gives rise to Plaintiff’s claims must have occurred on or after
December 23, 2018. Plaintiff concedes that, as pled, his fourth claim under O.R.S.

659A.203(1)(a) falls outside the one-year limitation period. For that claim, the only alleged
unlawful employment action was Defendant Hannan admonishing and threatening to discipline
Plaintiff for disclosing Defendant’s potential destruction of evidence to City Councilors. Plaintiff
alleges Hannan chastised him and threatened him on December 8, 2017, which was more than
two years before Plaintiff filed this action. Thus, Plaintiff’s fourth claim is time-barred.
Plaintiff brings his sixth claim under O.R.S. 659A.218, which prohibits disclosure of a
whistleblower’s name without their consent. For this claim, Plaintiff alleges his whistleblowing
activity was reporting the previously unreported file cabinet break-in to the Newberg Police.
Plaintiff alleges that Defendant Stone’s assistant, Robin Steele, contacted Defendant Lee and

informed her that Plaintiff had reported the alleged burglary to police. Plaintiff claims this
disclosure by Steele to Lee was improper and violated O.R.S. 659A.218. In his deposition
testimony, Plaintiff admits that this disclosure occurred no later than January 2018, which is
more than one year before he brought this suit. Thus, based on the facts presented by Plaintiff,
his sixth claim is also time barred.
The timing of the alleged unlawful employment actions that form the basis of Plaintiff’s
third, fifth, and seventh claims are less clear. In his Second Amended Complaint, Plaintiff does
not specifically allege which retaliatory actions form the basis for each of these claims. For his
fifth claim, Plaintiff asserts that “Defendants threatened Plaintiff with discipline for Plaintiff’s
disclosure to the City Council.” SAC ¶ 134. As to his seventh claim, Plaintiff asserts that
“Defendants discriminated and retaliated against Plaintiff for the reason that Plaintiff, in good
faith, reported potential criminal conduct[.]” SAC ¶ 146. But in his brief responding to
Defendant’s motions for summary judgment, Plaintiff explains the specific retaliatory actions he
claims Defendants took against him because of his protected activity under state law. These

include denying him incentive pay for additional forensic work, subjecting him to retaliatory
investigation, excluding him union bargaining meetings, and eliminating his position as IT
director. Each of these alleged retaliatory actions occurred on or after May 2019—less than one
year before Plaintiff filed suit. Thus, as argued in his response brief, Plaintiff’s third, fifth, and
seventh claims are not time barred.
B. Claim under O.R.S. 659A.199 and O.R.S. 659A.203
O.R.S. 659A.199, under which Plaintiff brings his third claim for relief, provides that an
employer may not “discharge, demote, suspend or in any manner discriminate or retaliate against
an employee . . . for the reason that the employee has in good faith reported information that the

employee believes is evidence of a violation of a state or federal law, rule or regulation.” O.R.S.
659A.199(1). Similarly, O.R.S. 659A.203(1)(b)(A), under which Plaintiff brings his fifth claim,
prohibits a public employer from taking “disciplinary action against an employee for disclosure
of information that the employee reasonably believes is evidence of a violation of any federal,
state, or local law, rule or regulation.” O.R.S. 659A.203(1)(b)(A).
“To establish a prima facie case of retaliation under [O.R.S. 659A.199 or O.R.S.
659A.203], the plaintiff must demonstrate that (1) he was engaged in protected activity; (2) he
suffered an adverse employment decision; and (3) there was a causal link between the protected
activity and the adverse employment decision.” Brunozzi v. Cable Commc’ns, Inc., 851 F.3d 990,
998 (9th Cir. 2017); Kozowski v. Nelson, No. 6:18-cv-00275-MK, 2020 WL 4279568, at *7
(D. Or. Mar. 23, 2020). Courts analyze claims under O.R.S. 659A.199 and O.R.S. 659A.203 in
the same manner as claims for First Amendment retaliation. See Marable v. Nitchman, 511 F.3d
924, 929 (9th Cir. 2009) (using substantially similar language to state the elements for a First
Amendment claim against a public employer).

Plaintiff asserts that his protected activity was reporting to City Councilors the suspected
misconduct related to Defendants’ failure to preserve evidence for a pending lawsuit. O.R.S.
659A.199 and O.R.S. 659A.203 define an employee’s protected activity as “reporting” or
“disclosing” information that the employee “believes is evidence of a violation of any federal,
state, or local law, rule or regulation.” Plaintiff has shown that he believed Defendant’s failure to
preserve an unmodified version of the Applicant Tracking-HR Assistant file, after receiving a
tort claim and preservation notice, violated city and state law. Thus, his disclosure to City
Councilors was protected activity.
However, as with his First Amendment claim, Plaintiff presents no evidence showing

that he suffered an adverse employment action. For these state law claims, Plaintiff asserts that
Defendants retaliated by subjecting him to an investigation for harassment, excluding him from
union bargaining meetings, denying him incentive pay for additional forensic work, and
eliminating his director-level position. As with his First Amendment claim, Plaintiff fails to
show that these were adverse employment decisions directed at him. Accordingly, the Court
grants summary judgment for Defendants on Plaintiff’s state statutory claims under O.R.S.
659A.199 and O.R.S. 659A.203 for the same reasons as for Plaintiff’s First Amendment
retaliation claim.
If Defendants had committed adverse employment actions against Plaintiff, determining
whether there was a causal link to these actions from his protected activity is generally a question
of fact. That said, courts have held that lack of temporal proximity can be a basis for dismissing
claims alleging retaliation against a whistleblower. See Biggs v. City of St. Paul, No. 6:18-cv-
507-MK, 2019 WL 4575839, at *14 (D. Or. Mar. 7, 2019) (noting that courts “have found gaps

of 13 months between the protected activity and adverse action insufficient to establish
causation”). Plaintiffs reported the suspected break-in of the HR file cabinet in November 2017,
which led to an Oregon State Police investigation that was completed in April 2018. The City’s
investigation into Lee’s harassment complaint, Plaintiff’s exclusion from union bargaining
meeting, denial on incentive pay, and restructuring of the IT Department all occurred on or after
May 2019. Thus, even if Plaintiff had presented evidence of an adverse employment action, such
action would be too remote in time from his protected activity and any potential causal
connection is too attenuated to support Plaintiff’s claims.
B. Claim under O.R.S. 659A.230

Plaintiff brings his seventh claim under O.R.S. 659A.230 which prohibits an employer
from retaliating against an employee “for the reason that the employee has in good faith reported
criminal activity against any person [or] . . . has in good faith cooperated with any law
enforcement agency conducting a criminal investigation[.]” O.R.S. 659A.230(1). Plaintiff
alleges his protected activity was “report[ing] potential criminal conduct to the Newberg Police
Department, Department of Justice, and Oregon State Police” and “cooperat[ing] with the
Newberg Police Department and the Oregon State Police’s investigations into Lee’s potential
misconduct.” SAC ¶ 146. The retaliatory acts that Plaintiff alleges are the same as those he
asserts with his First Amendment retaliation claim and his other state statutory claims. Because
the Court finds that those alleged acts do not constitute adverse employment actions on the part
of Defendants, Plaintiff’s claim under O.R.S. 659A.230 also fails.
For the reasons stated above, the Court grants summary judgment for Defendants on
Plaintiff’s state statutory claims.
III. Tort Claims

Plaintiff brings two common law tort claims against the City of Newberg: a claim for
intentional infliction of emotional distress (“IIED”) and a claim for negligent hiring based on
City’s hiring of HR Director Anna Lee.
A. Intentional Infliction of Emotional Distress
Under Oregon law, to succeed on an IIED claim, a plaintiff must show: “(1) the
defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's acts
were the cause of the plaintiff's severe emotional distress, and (3) the defendant's acts constituted
an extraordinary transgression of the bounds of socially tolerable conduct.” Bibeau v. Pac. Nw.
Rsch. Found., Inc., 339 F.3d 942, 947 (9th Cir. 2003) (quoting McGanty v. Staudenraus, 321 Or.

532, 543, 901 P.2d 841, 849 (1995)). To prove intent, a plaintiff must show that the defendant
acted with the purpose of causing them severe emotional distress. McGanty, 321 Or. at 543-44.
But a plaintiff need not show that the defendant acted with a malicious motive; the intent element
is also satisfied if the defendant “knows that such distress is certain, or substantially certain, to
result from his conduct.” Delaney v. Clifton, 180 Or. App. 119, 132, 41 P.3d 1099, 1108 (2002)
(internal quotations and citation omitted).
Plaintiff’s IIED claim is based on the same conduct by Defendants as alleged in his First
Amendment retaliation and state employment retaliation claims. This conduct includes:
“ordering Plaintiff, by inaction, to allow evidence to be destroyed . . . repeatedly threatening
Plaintiff with investigations for protected activities . . . subjecting Plaintiff to a baseless and
malicious investigation . . . publicly releasing a report containing false and defamatory
information.” SAC ¶ 150.
As to the first element of his IIED claim, Plaintiff presents no evidence that any of the
alleged actions by Defendants were conducted with the intent to cause Plaintiff severe emotional

distress. The City launched an investigation into conduct by Plaintiff and four other City
employees after Defendant Lee made a formal harassment complaint. Plaintiff presents no
evidence that the City conducted the investigation for the purpose of causing him severe
emotional distress or with the knowledge that it would do so. Rather, facts show that the City
commenced the investigation solely to follow-up on Lee’s complaint, which it was required to do
by City policy. The City engaged an independent investigator to complete a report, which
implicated Plaintiff in some wrongful activity, but exonerated him of violating any City policy.
Plaintiff faced no disciplinary action based on the findings of the investigation. The City released
the findings to the public because “the Newberg City Council values transparency and believes

the release is in the public interest.” Pl. Ex. 18. The press release accompanying the report made
no mention of Plaintiff. Thus, Plaintiff cannot establish that Defendants intended the
investigation to cause Plaintiff severe emotional distress or knew that it would do so.
As to the third element, the City conducted the investigation in order to comply with its
own policy. In the interest of maintaining transparency, the City Council had a legitimate reason
to publicly release the report from the investigation. Thus, the Court finds no basis for Plaintiff’s
claim that Defendant’s actions were extraordinary transgressions of the bounds of socially
tolerable conduct. Because Plaintiff cannot establish the requisite elements for his IIED claim,
the Court grants summary judgment for Defendants on this claim.
B. Negligent Hiring
In his tenth claim for relief, Plaintiff asserts that the City was negligent in hiring Anna
Lee as HR Director. Plaintiff claims that the City’s negligent hiring “caused a foreseeable risk to
Plaintiff by exposing him to Lee’s false and damaging allegations.” SAC ¶ 167.
Under Oregon jurisprudence, “the more traditional duty-breach and proximate cause

analysis in a common negligence claim are subsumed in the question whether the defendant’s
conduct resulted in a reasonably foreseeable and unreasonable risk of harm to a protected interest
of the kind plaintiff suffered.” Piazza v. Kellim, 360 Or. 58, 71, 377 P.3d 492, 500 (2016).
Oregon courts have recognized that “an employer can be found negligent for hiring or retaining
an employee.” Chesterman v. Barmon, 82 Or. App. 1, 4, 727 P.2d 130, 131 (1986), aff’d and
remanded, 305 Or. 439, 753 P.2d 404 (1988). The employer may be subject to liability if the
employer “negligently plac[es] an employee with known dangerous propensities, or dangerous
propensities which could have been discovered by a reasonable investigation, in a position where
it is foreseeable that he could injure the plaintiff in his course of work.” Id. (emphasis added).

For the employer to be liable, the plaintiff must show that it was “foreseeable that the employee,
in carrying out [her] employment, may pose an unreasonable risk of injury to others.” Id.
Plaintiff alleges that the City was negligent in not conducting an adequate background
check before hiring Lee. Plaintiff refers to one specific performance review from Lee’s former
employer that he alleges Defendants did not review. That evaluation noted that Lee’s “job
performance is unsatisfactory, that she became “argumentative” during one incident, and that she
“has a reputation for not keep confidential information confidential.” Pl. Resp. 33; Pl. Ex. 9. The
evaluation also noted that Lee “does an excellent job with training,” “typically does a good job”
with the citywide hiring process, and “has cooperative relationships and dysfunctional
relationships with other City staff members.” Pl. Ex. 9. Defendants argue that the City
appropriately checked Lee’s references before she was hired. Defendants present handwritten
notes made by an unknown person that provide comments from three of Lee’s references. Def.
Ex. 11. Plaintiff asserts that Defendants background check was inadequate because none of the
three references had been Lee’s supervisors or had worked closely with Lee in her previous job.

Whether the hiring process was adequate is an issue of disputed facts that the Court
cannot resolve on a motion for summary judgment. But Plaintiff’s negligent hiring claim fails
because he does not show how a more thorough background check would have uncovered any
“dangerous propensities,” which would have caused the City to decline to hire Lee. Although the
performance evaluation presented by Plaintiff demonstrates that Lee’s previous employer had
some concerns about her job performance, it would not have alerted the city of foreseeable risk
that Lee would commit a tort against Plaintiff. In a conclusory manner, Plaintiff alleges that the
comments in her performance evaluation should have alerted the City that Lee would be a
“dangerous employee.” Pl. Resp. 33. Otherwise, Plaintiff points to no specific findings in the

performance evaluation that created an unreasonable and foreseeable risk of harm to him.
Nor does Plaintiff show that Lee behaved dangerously in her role as HR Director at the
City of Newberg or caused him any legally cognizable harm. See Brennan v. City of Eugene, 285
Or. 401, 405, 591 P.2d 719 (1979) (“To state a cause of action in negligence, [a] plaintiff must
allege . . . some legally cognizable damage.”). Plaintiff vaguely asserts that Lee made false and
damaging allegations against him when she implicated him in her harassment complaint. But
Plaintiff presents no evidence that the Lee’s harassment complaint or the ensuing investigation
caused him to suffer harm. Without the requisite showing of legal harm caused by Lee, Plaintiff
cannot show that the City is liable for negligently hiring her. Accordingly, summary judgment is
granted for Defendants on Plaintiff’s claim against the City for negligent hiring.
CONCLUSION
For the reasons described above, the Court GRANTS Defendants’ Motions for Summary
Judgment [88][92][95].

IT IS SO ORDERED.

DATED:____M__a_y_ _3_0_, _2_0_2_2________.

______________________________
MARCO A. HERNÁNDEZ
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10394784. Public record. Not legal advice.