Nguyen v. Columbia River People's Utility District

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOHN NGUYEN, Case No. 3:21-cv-00977-IM

Plaintiff,

ORDER GRANTING IN PART AND

v. DENYING IN PART DEFENDANTS’

MOTION FOR SUMMARY

COLUMBIA RIVER PEOPLE’S JUDGMENT

UTILITY DISTRICT, an Oregon people’s

utility district, JAKE CARTER, CRAIG

MELTON, DEBBIE REED, ROB

MATHERS, HARRY PRICE, and PHILIP

S. GRIFFIN,

Defendants.

IMMERGUT, District Judge.

Before this Court is Defendants’ Motion for Summary Judgment, (“Defs.’ Mot.”), ECF

35, as to Claims One, Two, Three, Four, Six, and Nine of Plaintiff’s Complaint. See Complaint,

(“Compl.”), ECF 1. Plaintiff John Nguyen has brought this action against his former employer

the Columbia River People’s Utility District (“CRPUD”); Board members of the CRPUD: Jake

Carter, Craig Melton, Debbie Reed, Rob Mathers, and Harry Price; and the CRPUD General

Counsel Philip Griffin. Id. In Claim One, Plaintiff alleges deprivation of his First Amendment

rights under color of law, pursuant to 42 U.S.C. § 1983, against Defendants CRPUD and Carter,

Melton, Reed, Mathers, Price, and Griffin in both their individual and official capacities. Id. ¶¶

34–41. In Claim Two, Plaintiff alleges retaliation for opposing unlawful employment practices

under O.R.S. 659A.030(1)(f) against all Defendants. Id. ¶¶ 42–45. In Claim Three, Plaintiff

alleges whistleblower retaliation under O.R.S. 659A.199 against Defendant CRPUD. Id. ¶¶ 46–

50. In Claim Four, Plaintiff alleges public employee whistleblower retaliation under O.R.S.

659A.203 against Defendant CRPUD. Id. ¶¶ 51–55. In Claim Six, Plaintiff alleges aiding and

abetting unlawful employment actions under O.R.S. 659A.030(1)(g) against all Defendants. Id.

¶¶ 61–64. In Claim Nine, Plaintiff alleges intentional interference with economic relations under

Oregon common law against defendants Carter, Melton, Reed, Mathers, Price, and Griffin. Id. ¶¶

74–77. In his briefing, Plaintiff concedes Claims Six and Nine. Plaintiff’s Response to

Defendants’ Motion for Summary Judgment (“Pl.’s Resp.”), ECF 42.

This Court held oral argument on September 15, 2023 on Defendants’ Motion for

Summary Judgment. ECF 64. As stated on the record and for the reasons below, this Court

GRANTS in part and DENIES in part Defendants’ Motion for Summary Judgment, ECF 35.

LEGAL STANDARD

A party is entitled to summary judgment if the “movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the

evidence in the light most favorable to the non-movant and draw all reasonable inferences in the

non-movant’s favor. Clicks Billiards, Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir.

2001).

Although “[c]redibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a

motion for summary judgment,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986), the “mere existence of a scintilla of evidence in support of the

plaintiff’s position [is] insufficient.” Id. at 252. “Where the record taken as a whole could not

lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and

quotation marks omitted).

The evidence presented by the parties must be admissible. Wady v. Provident Life &

Accident Ins. Co. of Am., 216 F. Supp. 2d 1060, 1065 (C.D. Cal. 2002) (citation omitted); see

Fed. R. Civ. P. 56(c)(2). Further, the non-moving party may not rest on conclusory or speculative

evidence but must “set forth specific facts in support of [its] . . . theory.” Thornhill Pub. Co., Inc.

v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 738 (9th Cir. 1979) (citation omitted).

ANALYSIS

1. Deprivation of First Amendment Right to Free Speech - 42 U.S.C. § 1983 (Claim

One)

Defendants argue that Claim One should be dismissed because Plaintiff was not speaking

on matters of public concern; Plaintiff did not speak as a private citizen; Plaintiff’s termination

was not caused by his allegedly protected communications; and Defendants had an adequate

justification for replacing Plaintiff when they did. Defs.’ Mot., ECF 35 at 20–21. Defendants also

argue that Plaintiff cannot establish pretext for their justification to terminate Plaintiff. Id. at 18–

19.

Defendants argue in the alternative that Defendant Griffin should be dismissed because

he was not a member of the CRPUD Board and could not carry out an adverse employment

action against Plaintiff. Id. at 21.

Plaintiff argues that he spoke on matters of public concern; he spoke as a private citizen;

and his allegedly protected activities caused Defendants to take adverse employment actions

against him. Pl.’s Resp., ECF 42 at 19–20, 29–34.

Section 1983 prohibits the “deprivation of any rights, privileges, or immunities secured

by the Constitution and laws” of the United States by any person “under color of any statute,

ordinance, regulation, custom, or usage, of any State.” 42 U.S.C. § 1983. Under Section 1983,

parties may bring lawsuits against State entities for violating the right to Free Speech under the

First Amendment. See Eng v. Cooley, 552 F.3d 1062, 1070–71 (9th Cir. 2009).

To establish a First Amendment claim against a public employer, plaintiff bears the

burden of showing (1) the plaintiff made statements on matters of public concern; (2) plaintiff

made them in his capacity as a private citizen and not a public employee; and (3) the statements

were a substantial or motivating factor in the adverse employment action. Id. If the plaintiff has

satisfied those three elements, the burden then shifts to the defendant to show that: (1) the

employer had an adequate justification for treating the employee differently from other members

of the general public and (2) the employer would have taken the adverse employment action

even absent the protected speech. Id.

As stated on the record, this Court finds that Defendant Griffin, who was employed as the

CRPUD General Counsel and not as a Board member, could not have carried out an adverse

employment action against Plaintiff. Accordingly, Defendants’ Motion for Summary Judgment is

GRANTED as to Defendant Griffin as to Claim One.

As to the remaining defendants, disputes of material fact exist as to whether Plaintiff’s

allegedly protected statements involve matters of public concern; whether Plaintiff was speaking

as a private employee; whether Plaintiff’s allegedly protected statements were substantial or

motivating factors in Defendants’ decision to terminate Plaintiff; whether Defendants possessed

adequate justification to terminate Plaintiff before the end of his employment contract; and

whether Defendants would have terminated Plaintiff when it did whether or not Plaintiff made

the allegedly protected statements. Because disputes of material fact exist, Defendants’ Motion

for Summary Judgment as to Claim One for the remaining defendants is DENIED.

2. Retaliation for Opposing Unlawful Employment Practices - O.R.S.

659A.030(1)(f) (Claim Two)

Defendants argue that Plaintiff has not satisfied the statutory requirements of O.R.S.

659A.030(1)(f) because he did not oppose an unlawful practice under O.R.S. Chapter 659A.

Defs.’ Mot., ECF 35 at 22. Defendants also argue that this claim should otherwise be dismissed

because Courts within the District of Oregon have declined to apply O.R.S. 659A.030(1)(f) to

situations when the plaintiff is retaliated against for his whistleblower status. Id.

Plaintiff argues that this Court should distinguish the District of Oregon opinions finding

that O.R.S. 659A.030(1)(f) does not protect against whistleblower retaliation. Pl.’s Resp., ECF

42 at 24–25.

Section 659A.030(1)(f) makes it unlawful “[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.” O.R.S. 659A.030(1)(f). The statute

requires that the “unlawful practice” must be unlawful under O.R.S. Chapter 659A. See O.R.S.

659A.001(14).

To establish a prima facie case of retaliation, Plaintiff must show that: (1) he engaged in a

protected activity; (2) Defendants subjected him to an adverse employment action; and (3) “a

causal link exists between the protected activity and the adverse action.” Manatt v. Bank of Am.,

NA, 339 F.3d 792, 800 (9th Cir. 2003) (citation and footnotes omitted).

As stated on the record, this Court finds that Plaintiff has failed to present evidence that

he opposed a practice deemed unlawful under O.R.S. Chapter 659A, or otherwise establish a

prima facie case of retaliation under O.R.S. 659A.030(1)(f). Thus, this Court GRANTS

Defendants’ Motion for Summary Judgment as to Claim Two.

3. Whistleblower Retaliation - O.R.S. 659A.199 (Claim Three)

Defendants argue that Claim Three should be dismissed because Plaintiff has failed to show

he reported information that was evidence of a violation of law. Defs.’ Mot., ECF 35 at 23.

Defendants also state that an O.R.S. 659A.199 claim cannot be based on an allegation that an

employer was upset at an employee for retaining counsel, nor can it be based on recommendations

and advice given by an employee in the regular course of his duties. Defendants’ Reply (“Defs.’

Reply”), ECF 48 at 11–12.

Plaintiff argues that he has satisfied the statutory requirements of O.R.S. 659A.199 by

reporting information that he believed, in good faith, to be evidence of a violation of a state law,

rule, or regulation. Pl.’s Resp., ECF 42 at 26–27.

O.R.S. 659A.199(1) makes it unlawful “for an employer to discharge, demote, suspend or

in any manner discriminate or retaliate against an employee with regard to promotion,

compensation or other terms, conditions or privileges of employment 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.”

To establish a prima facie case of retaliation, Plaintiff must show that: (1) he engaged in a

protected activity; (2) Defendants subjected him to an adverse employment action; and (3) “a

causal link exists between the protected activity and the adverse action.” Manatt, 339 F.3d at 800

(citation and footnotes omitted).

For Claim Three, this Court finds that disputes of material fact exist as to whether

Plaintiff made his allegedly protected statements with a good-faith belief that the complaints

involved evidence relating to unlawful activity and whether Plaintiff’s allegedly protected

statements were substantial or motivating factors in Defendants’ decision to terminate Plaintiff.

Accordingly, this Court DENIES Defendants’ Motion for Summary Judgment as to Claim Three.

4. Public Employee Whistleblower Retaliation - O.R.S. 659A.203

Defendants argue that Plaintiff did not make a “disclosure” as required by O.R.S.

659A.203. Defs’ Mot., ECF 35 at 23; Defs.’ Reply, ECF 48 at 16–17.

Plaintiff argues that a disclosure under O.R.S. 659A.203 need not involve a violation of

law and instead that a report of wrongdoing to supervisors or HR can qualify as a protected

disclosure. Pl.’s Resp., ECF 42 at 26.

Section 659A.203 makes it unlawful for a public employer to:

(b) Prohibit any employee from disclosing, or take or threaten to

take disciplinary action against an employee for the disclosure of

any information that the employee reasonably believes is evidence

of:

(A) A violation of any federal, state or local law, rule or

regulation by the public or nonprofit employer; [or]

(B) Mismanagement, gross waste of funds or abuse of

authority or substantial and specific danger to public health

and safety resulting from action of the public or nonprofit

employer . . . .

O.R.S. 659A.203(b)(A)–(B).

Other decisions issued by the U.S. District Court for the District of Oregon have

examined the meaning of “disclosure” within the statute, finding that it must reveal previously

unknown conduct to be a protected activity. See, e.g., Lindsey v. Clatskanie People’s Util. Dist.,

140 F. Supp. 3d 1077, 1093 (D. Or. 2015) (citation omitted). In Lindsey, the court held that “it is

insufficient to merely identify or label conduct which is known to have occurred as either

unlawful or improper.” Id. (citation omitted); see also Clarke v. Multnomah County, 303 F.

App’x 512, 513 (9th Cir. 2008) (stating that the disclosure-of-information-requirement under

O.R.S. 659A.203 requires more than just reporting publicly available information) (citing

Black’s Law Dictionary 497 (8th ed. 2004) (“The act or process of making known something that

was previously unknown; a revelation of facts.” (emphasis added)); 4 Oxford English Dictionary

737 (2d ed. 1989) (“To open up to the knowledge of others; to make openly known, reveal”);

Webster’s Ninth New Collegiate Dictionary 360 (1984) (“[T]o expose to view . . . to make

known or public.”)).

This Court finds that Plaintiff’s allegedly protected statements do not involve disclosing

previously unknown conduct as required by O.R.S. 659A.203(b)(A)-(B). For this reason,

Defendants’ Motion for Summary Judgment as to Claim Four is GRANTED.

CONCLUSION

This Court GRANTS Defendants’ motion as to Claim One with respect to Defendant

Griffin and DENIES Defendants’ motion with respect to the remaining defendants. This Court

also GRANTS Defendants’ motion as to Claims Two and Four and DENIES Defendants’ motion

as to Claim Three.

IT IS SO ORDERED.

DATED this 10th day of October, 2023.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge