# Ewing v. City of Toledo

> District Court, D. Oregon · February 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10397101

## Case

- **Court:** District Court, D. Oregon
- **Decided:** February 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

WILLIAM EWING,

Plaintiff, No. 6:18-cv-01626-MK

v. ORDER

CITY OF TOLEDO; CRAIG MARTIN;
BILLIE JO SMITH; and DAVID JAMES
ROBINSON,

Defendants.
_______________________________________
AIKEN, District Judge.
This case comes before the Court on a Findings and Recommendation (“F&R”)
filed by Magistrate Judge Mustafa Kasubhai. ECF No. 131. Judge Kasubhai
recommends that defendants’ motion for summary judgment be granted in part.
Under the Federal Magistrates Act, the Court may “accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1). If a party files objections to a magistrate judge’s findings and
recommendations, “the court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is
made.” Id.; Fed. R. Civ. P. 72(b)(3).
For those portions of a magistrate judge’s findings and recommendations to
which neither party has objected, the Act does not prescribe any standard of review.
See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress,
in enacting [the Act], intended to require a district judge to review a magistrate’s
report to which no objections are filed.”). Although no review is required in the

absence of objections, the Magistrates Act “does not preclude further review by the
district judge[] sua sponte . . . under a de novo or any other standard.” Id. at 154. The
Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that “[w]hen no timely
objection is filed,” the court should review the recommendation for “clear error on the
face of the record.”
In this case, defendants have filed timely objections. The Court agrees with
Judge Kasubhai’s conclusions and adopts the Findings and Recommendations with

the following modifications and clarifications.
I. First Amendment Whistleblower Retaliation Test
Defendants’ first two objections assert that the retaliation claim against
Defendant Craig Martin cannot stand because it fails two parts of the five-part
inquiry laid out in Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Judge
Kasubhai’s conclusion that there remains a genuine issue of material as to the

nature of the plaintiff’s speech is correct. However, the F&R relies on an outdated
test for analyzing claims of whistleblower retaliation. Judge Kasubhai quotes
Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) which states “[i]n order
to sustain a claim against a government employer for violation of the First
Amendment, an employee must show: (1) that he or she engaged in protected
speech; (2) that the employer took adverse employment action; and (3) that his or
her speech was a substantial or motivating factor for the adverse employment
action.”1
Although this formulation of the rule has not expressly been overturned, it is

not the most current rule as shown by recent Ninth Circuit precedent. Recognizing
that First Amendment retaliation law involves “[u]nraveling Pickering's tangled
history,” the Ninth Circuit held that the rule involves:
a sequential five-step series of questions: (1) whether the plaintiff spoke on a
matter of public concern; (2) whether the plaintiff spoke as a private citizen
or public employee; (3) whether the plaintiff's protected speech was a
substantial or motivating factor in the adverse employment action; (4)
whether the state had an adequate justification for treating the employee
differently from other members of the general public; and (5) whether the
state would have taken the adverse employment action even absent the
protected speech.

Eng 552 F.3d at 1070. Notably, this Eng test was quoted in whole and followed in
Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013). It was also quoted in full
and followed in the recent case of Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004,
1014 (9th Cir. 2021), rev'd, 597 U.S. 507, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022)2.
It is clear that the Ninth Circuit favors the Eng framework for analyzing First
Amendment retaliation cases in this context.
The primary difference between the F&R’s formation of the test and the Eng
test lies in the first two inquiries. In Coszalter, the Ninth Circuit explained the

1 It should be noted that the Defendants’ Motion for Summary Judgment uses this outdated test with
the “protected speech” inquiry as well, while their Objections appear to use the updated Eng test.
ECF No. 111 at 10.
2 Although the Supreme Court reversed the Ninth Circuit, their decision was not based on problems
with the Eng framework. The Supreme Court even conducted some of its analysis within this
framework, primarily examining the second factor at 597 U.S. at 527-29.
“protected speech” inquiry used by the F&R: “[a]n employee's speech is protected
under the First Amendment if it addresses ‘a matter of legitimate public concern.’
Pickering v. Bd. of Educ., 391 U.S. 563, 571, (1968) . . . . The determination of

whether an employee's speech deals with an issue of public concern is to be made
with reference to ‘the content, form, and context’ of the speech.” 320 F.3d at 973-74
(citations omitted). As noted by Judge Kasubhai, older case law clarifies that a key
part of determining whether an employee’s speech addresses a matter of public
concern is “whether the employee spoke in order to bring wrongdoing to light or
merely to further some purely private interest.” Havekost v. U.S. Dept. of Navy, 925
F.2d 316, 318 (9th Cir. 1991). In Havekost, the Ninth Circuit ruled that the

plaintiff, a grocery bagger working under a license for the Navy, did not engage in
protected speech when she circulated a petition asking for her supervisor’s
termination and voiced workplace concerns to management regarding dress code,
scheduling, and responsibility for certain lost commissary profits. Id. at 317. In
reaching their conclusion, the court reasoned that these matters did not concern the
general public and the heart of the dispute dealt with workplace grievances related

to the plaintiff’s job responsibilities. Id. at 319.
The Eng test’s first two inquires ask whether the plaintiff spoke on a matter
of public concern and whether the plaintiff spoke as a private citizen or public
employee. Eng, 735 F.3d at 1070. There is great similarity in how the courts
analyze these two Eng inquiries compared with the “protected speech” inquiry. The
“protected speech” inquiry outlined in Coszalter and used in the F&R essentially
encompasses the first two inquiries of the Eng test. As Eng points out, “[i]n the forty
years since Pickering, First Amendment retaliation law has evolved dramatically, if
sometimes inconsistently.” Id. The “protected speech” inquiry’s split into the “public

concern” and “private citizen” inquiries as described in Eng is the latest evolution.
Nonetheless, applying the updated Eng test yields the same conclusion as the
analysis used in the F&R: summary judgment is inappropriate for plaintiff’s
whistleblower claim against Martin. The first question in the five-step inquiry is
whether the plaintiff spoke on a matter of public concern. Eng, 552 F.3d at 1070.
The public concern inquiry is a question of law. Id. Considering the fact that
plaintiff’s speech centered on investigating a six-figure discrepancy in the city

budget, it is reasonable to conclude that he was speaking on a matter of public
concern.
The second question in this analysis is “whether the plaintiff spoke as a
private citizen or public employee.” Id. at 1071. This inquiry is a mixed question of
fact and law. Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th
Cir. 2008). Specifically, “‘the question of the scope and content of a plaintiff's job

responsibilities is a question of fact,’ and the ‘ultimate constitutional significance of
the facts as found’ is a question of law.” Eng, 552 F.3d at 1071 (quoting Posey 546
F.3d at 1129-30). Employees are speaking as private citizens when they have “no
official duty” to make such statements, or if the speech in question was not related
to “performing the tasks the employee was paid to perform.” Id.
In this case, even though plaintiff may have been acting in his role as Fire
Chief when he downloaded the financial information, plaintiff’s disclosure of the
financial information to Chavaria was done as a private citizen. It was well outside

the scope of plaintiff’s duties as Fire Chief to investigate a discrepancy in the
budget by providing Chavaria with the City’s financial information. This was made
clear by his termination notice, which explicitly stated he was being terminated for
sharing this financial information. Notice of Termination Ex. 71 at 1. ECF No. 126-
9. Additionally, plaintiff submitted an affidavit which indicated he intended to act
as a private citizen, outside the scope of his job responsibilities.3 ECF No. 121.
Given that all inferences must be drawn in favor of the plaintiff, it is correct to

conclude that a genuine issue of material fact remains as to the nature of plaintiff’s
speech.
Thus, applying the Eng test, the F&R is correct that summary judgment for
defendants on the retaliation claim against Defendant Martin is inappropriate.
II. Qualified Immunity
Defendants’ third objection asserts that Judge Kasubhai incorrectly concluded

that defendants should not be granted qualified immunity. The F&R’s denial of
qualified immunity is correct. However, it relies on an overly general formulation of
the right at issue and so the Court makes the following clarification.
As the Ninth Circuit recently explained, a state official may be denied qualified
immunity at summary judgment in a Section 1983 case:

3 The Court concurs with Judge Kasubhai's conclusions regarding Defendants' assertion of a sham
affidavit.
only if (1) the facts alleged, taken in the light most favorable to the party
asserting injury, show that the officer’s conduct violated a constitutional right,
and (2) the right at issue was clearly established at the time of the incident
such that a reasonable officer would have understood [their] conduct to be
unlawful in that situation.

Isayeva v. Sacramento Sheriff’s Department, 872 F.3d 938, 945 (9th Cir. 2017)
(internal quotation marks and citation omitted). For a right to be clearly established,
“existing precedent must have placed the statutory or constitutional question beyond
debate” at the time of the conduct. Ashcroft v. al– Kidd, 563 U.S. 731, 741 (2011).
One critical question in this analysis is how to define the right at issue.
Defendants’ objection correctly points out that it cannot be too broad, as courts must
not “define clearly established law at a high level of generality.” Id. at 742. Thus,
defining the right at issue as the right to exercise First Amendment freedoms is too
broad. However, the right as defined must not be so narrow and particularized as to
allow “defendants to define away all potential claims.” See Kelley v. Borg, 60 F.3d 664,
667 (9th Cir. 1995).
The F&R defined the right at issue as “the right to be free from retaliation for
protected speech.” ECF No. 133 at 11 (quoting ECF No. 131 at 16). In comparing this
formulation with similar cases, this definition is overly broad. See Greisen v. Hanken,
925 F.3d 1097, 1112-13 (9th Cir. 2019); Weeks v. Bayer, 246 F.3d 1231 (9th Cir. 2001);
Eng, 552 F.3d at 1075; Moran v. State of Wash., 147 F.3d 839, 850-51 (9th Cir. 1998).
A more appropriate formulation of the right at issue and the proper inquiry on the
question of qualified immunity is whether “the right for public employees to be free
from retaliation by government supervisors for exercising First Amendment rights”
was clearly established at the time of plaintiff’s termination.
Defendants are correct that the inquiry for whether a right is clearly

established requires “existing precedent must have placed the statutory or
constitutional question beyond debate.” O'Doan v. Sanford, 991 F.3d 1027, 1036 (9th
Cir. 2021) (emphasis added). The Court clarified in Ashcroft that it “do[es] not require
a case directly on point.” 563 U.S. at 741. Here, several prior cases support the
conclusion that the right at issue, as formulated above, was clearly established at the
time of the conduct in this case. For example, “[i]n Karl v. City of Mountlake Terrace,
678 F.3d 1062 (9th Cir. 2012), we held that ‘a reasonable official would . . . have

known that a public employee's speech on a matter of public concern is protected if
the speech is not made pursuant to her official job duties, even if the testimony itself
addresses matters of employment.” Greisen, 925 F.3d at 1112-13 (internal citations
omitted). Additionally, Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 283-284,
(1977) held that adverse action against government employees cannot be taken if it
is in response to the employee's “exercise of constitutionally protected First

Amendment freedoms.” Furthermore, in Eng, 552 F.3d at 1075, the Ninth Circuit
opined “[t]here could be no confusion, however, that when Eng ‘comment[ed] upon
matters of public concern’ ‘as a citizen’ and not pursuant to his job responsibilities,
his speech was protected by the First Amendment—that rule had long been the law
of the land.” (quoting Pickering, 391 U.S. at 568).
Applying a narrower definition of the right at issue, the Court concludes that
the right was clearly established at the time of Martin’s conduct. The Court therefore
declines to grant summary judgment on the basis of qualified immunity.

The Court has reviewed the F&R and finds no error with its conclusions. The
F&R is therefore ADOPTED AS MODIFIED and the motion for summary judgment
is GRANTED IN PART.
It is so ORDERED and DATED this _2_9_t_h_ day of February 2024.

/s/Ann Aiken
ANN AIKEN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10397101. Public record. Not legal advice.