Janell Howard v. City of Coos Bay

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JANELL HOWARD, No. 14-35506

Plaintiff-Appellant,

D.C. No.

v. 6:12-cv-01372-

MC

CITY OF COOS BAY, an Oregon

Municipal Corporation; CRADDOCK

RODGER, in his individual capacity, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Michael J. McShane, District Judge, Presiding

Argued and Submitted March 7, 2017

Portland, Oregon

Filed September 25, 2017

Before: Diarmuid F. O’Scannlain, Raymond C. Fisher,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge O’Scannlain

2 HOWARD V. CITY OF COOS BAY

SUMMARY *

Civil Rights

The panel affirmed the district court’s summary

judgment in an action brought under 42 U.S.C. § 1983 and

Oregon state law by a former employee of the City of Coos

Bay, Oregon, who alleged that the City violated the First

Amendment and state law by refusing to rehire her as a

Finance Director.

The City terminated plaintiff from her position as

Finance Director in 2008. In 2009, she filed her first lawsuit

against the City alleging that her termination was retaliatory

(Hunter I). While that lawsuit was pending, plaintiff’s

former position became vacant and she applied for the job.

Her application was rejected in 2011. After a jury ruled in

plaintiff’s favor in Howard I, plaintiff filed a second action

against the City in 2012, alleging that the City retaliated

against her for her first lawsuit when it rejected her

employment application (Howard II).

The panel first held that plaintiff’s claims were not

barred by claim preclusion because plaintiff’s retaliation

claim in the present suit arose from events that occurred after

she filed her complaint in Howard I . The panel held that

claim preclusion does not apply to claims that accrue after

the filing of the operative complaint. The panel held,

however, that issue preclusion barred plaintiff from

recovering economic damages which she has already

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

HOWARD V. CITY OF COOS BAY 3

received as a result of Howard I —namely the loss of the

salary and benefits she could have earned as the City’s

Finance Director. Nevertheless, because plaintiff presented

a new request for punitive damages and because she may

have been able to demonstrate new non-economic damages,

the panel considered the merits of her suit against the City.

The panel held that no reasonable jury could find that

plaintiff’s first suit was a substantial reason for the City’s

refusal to consider her for the Finance Director position in

2011. The panel held that rightly or wrongly, because of her

previous termination in 2008, the City had demonstrated that

it would have rejected plaintiff’s application in 2011,

irrespective of her suit.

The panel held that plaintiff’s claim under the Oregon

Whistleblower Act failed as a matter of law. Thus, the panel

rejected plaintiff’s assertion that the Act should be construed

analogously to Title VII of the United States Code, and

permit claims of retaliation brought by former employees.

COUNSEL

Beth Creighton (argued) and Michael E. Rose, Creighton &

Rose PC, Portland, Oregon, for Plaintiff-Appellant.

Robert E. Franz, Jr. (argued), Law Office of Robert E. Franz,

Jr., Springfield, Oregon, for Defendants-Appellees.

4 HOWARD V. CITY OF COOS BAY

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the former employee of a City

in Oregon may prevail on allegations that it violated the First

Amendment and state law by refusing to rehire her.

I

A

Janell Howard served as the Finance Director for the

City of Coos Bay (“City”) from 1998 through 2008. On

September 16, 2008, after an investigation into whether

Howard had shoplifted from Wal-Mart (from which no

charges were filed), she was terminated from such position

for cause.

Howard maintained that her firing was actually the result

of a complaint she had brought in June 2007 before the

Oregon Board of Accountancy regarding an accountant

whom the City had hired to conduct an audit. Howard

believed that the accountant had billed the City for extra and

unnecessary charges. The City Manager, Charles Freeman,

requested that she withdraw the complaint, but Howard

refused and was temporarily suspended in July 2007.

B

In September 2009, Howard filed suit (“Howard I”)

against the City and Freeman, alleging multiple claims,

including First Amendment retaliation and whistleblower

retaliation under Oregon law. Howard filed an amended

complaint in October 2010.

HOWARD V. CITY OF COOS BAY 5

Howard eventually found a new position as the

Administrative Services Director for the City of Brookings,

although it provided a lower salary with fewer benefits and

caused Howard to have additional housing expenses.

In May 2011, while Howard I was pending, the City

Finance Director position became vacant. The City

appointed Susanne Baker, who at that time worked in the

Finance Department, as acting Finance Director. Roger

Craddock, then current City Manager, asked Baker if she

would be interested in the position permanently, but she

declined because she wanted to continue with her education.

In June 2011, the City opened the application period to fill

this position permanently, and Howard applied for the job on

June 13.

On July 6, 2011, Howard received a letter from

Craddock explaining that her application would not be

considered because she previously had been terminated for

cause.

The letter read:

I am in receipt of your request to be

considered for the open position of Finance

Director with the City of Coos Bay.

Unfortunately, as your prior employment

with the City was terminated for cause, I am

not in a position to consider you for the

current position. I do wish you the best with

your continued employment with the City of

Brookings.

The application period for the Finance Director position

closed on July 8, 2011. The City received a total of

29 applications, interviewed the top four applicants, but

6 HOWARD V. CITY OF COOS BAY

declined to make an offer to anyone. Craddock again

approached Baker about applying, but she again declined.

The City began a second hiring period in August. Howard

did not reapply, although under City policy, her prior

application should have remained on file. The second

application period closed on September 30, 2011. The City

received twenty-three applications and interviewed the top

three candidates. Again, the City declined to make any

offers.

On October 25, 2011, Craddock again approached Baker

about taking the Finance Director position permanently. She

accepted the position the following day. The paperwork

officially promoting her was not completed until November

7 or 8, 2011, but the promotion became effective on

November 1.

Meanwhile, Howard I had been progressing to trial. On

October 11, 2011, Howard submitted a trial witness list,

which stated that Craddock would testify to the receipt of

Howard’s 2011 application for City Finance Director and

subsequent rejection. Howard also filed a proposed exhibit

list that included the July 6, 2011 rejection letter from

Craddock.

Trial on Howard’s First Amendment retaliation claim

began on October 31, 2011. Howard moved to admit the July

2011 rejection letter into evidence on the “theory” that it

demonstrated “continued retaliation for her protected

speech.” The City’s attorney objected, arguing that this was

“another claim . . . another set of circumstances” that was

“outside the scope of this lawsuit.” The court ruled that the

letter was “still relevant with regard to damages.”

The jury reached a verdict in favor of Howard on

November 2, 2011. It awarded her $150,000 in economic

HOWARD V. CITY OF COOS BAY 7

damages, $50,000 in non-economic damages, and it further

awarded her $1,000 in punitive damages against Freeman,

the former City Manager.

C

On July 30, 2012, Howard filed this new suit (“Howard

II”) against the City of Coos Bay and City Manager

Craddock, contending that the City retaliated against her

success in Howard I by hiring Baker and rejecting her

application to become City Finance Director. She brought

claims under 28 U.S.C. § 1983, alleging that the City

violated the First Amendment of the United States

Constitution, and Or. Rev. Stat. § 659A.230, Oregon’s

whistleblower-protection law. The City and Craddock

moved for summary judgment arguing that Howard’s claims

were barred by both claim and issue preclusion, and,

alternatively, that they failed on the merits. The district court

granted summary judgment on May 13, 2014, determining

that Howard’s claims were barred by claim and issue

preclusion. Howard timely appealed.

II

First, Howard argues that the district court erred by

concluding that her claims were barred by claim preclusion. 1

Claim preclusion requires “(1) an identity of claims, (2) a

1

We review summary judgment de novo, applying the same

standard as the district court. Szajer v. City of Los Angeles, 632 F.3d 607,

610 (9th Cir. 2011). Thus, questions of claim and issue preclusion are

reviewed de novo. See United States v. Liquidators of European Fed.

Credit Bank, 630 F.3d 1139, 1144 (9th Cir. 2011). Summary judgment

is appropriate if 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).

8 HOWARD V. CITY OF COOS BAY

final judgment on the merits, and (3) privity between

parties.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003)

(quoting Stratosphere Litig. L.L.C. v. Grand Casinos, Inc.,

298 F.3d 1137, 1142 n.3 (9th Cir. 2002)).

The parties do not dispute the application of the second

and third factors; the central debate is over the first factor—

whether the claims between the two suits are identical.

A

We employ four criteria to evaluate whether claims are

identical:

(1) whether rights or interests established in

the prior judgment would be destroyed or

impaired by prosecution of the second action;

(2) whether substantially the same evidence

is presented in the two actions; (3) whether

the two suits involve infringement of the

same right; and (4) whether the two suits arise

out of the same transactional nucleus of facts.

Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir.

2012) (quoting United States v. Liquidators of European

Fed. Credit Bank, 630 F.3d 1139, 1150 (9th Cir. 2011)).

These criteria are not applied “mechanistically.” Garity v.

APWU Nat’l Labor Org., 828 F.3d 848, 855 (9th Cir. 2016).

“The fourth criterion is the most important.” Harris,

682 F.3d at 1132.

1

Indeed, as did the district court, the parties focus on this

fourth criterion—whether the suits involve the same

HOWARD V. CITY OF COOS BAY 9

transactional nucleus of facts. “[T]he inquiry about the

‘same transactional nucleus of facts’ is the same inquiry as

whether the claim could have been brought in the previous

action.” Liquidators of European Fed. Credit Bank, 630 F.3d

at 1151. This is because:

If the harm arose at the same time, then there

was no reason why the plaintiff could not

have brought the claim in the first action. The

plaintiff simply could have added a claim to

the complaint. If the harm arose from

different facts at a different time, however,

then the plaintiff could not have brought the

claim in the first action.

Id. Thus, “[w]hether two suits arise out of the same

transactional nucleus depends upon whether they are related

to the same set of facts and whether they could conveniently

be tried together.” Turtle Island Restoration Network v. U.S.

Dep’t of State, 673 F.3d 914, 918 (9th Cir. 2012) (quoting

ProShipLine Inc. v. Aspen Infrastructures Ltd., 609 F.3d

960, 968 (9th Cir. 2010)).

To answer this question, a number of other circuits have

“adopted a bright-line rule that res judicata does not apply

to events post-dating the filing of the initial complaint.”

Morgan v. Covington Twp., 648 F.3d 172, 177–78 (3d Cir.

2011); see also Bank of N.Y. v. First Millennium, Inc.,

607 F.3d 905, 919 (2d Cir. 2010); Smith v. Potter, 513 F.3d

781, 783 (7th Cir. 2008); Rawe v. Liberty Mut. Fire Ins. Co.,

462 F.3d 521, 529–30 (6th Cir. 2006); Mitchell v. City of

Moore, 218 F.3d 1190, 1202 (10th Cir. 2000); Manning v.

City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992); cf.

Young-Henderson v. Spartanburg Area Mental Health Ctr.,

945 F.2d 770, 774 (4th Cir. 1991) (suggesting without

10 HOWARD V. CITY OF COOS BAY

deciding that res judicata need not “preclude claims that

could not have been brought at the time the first complaint

was filed”); 18 Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Procedure § 4409

(3d ed. 2017) (“Most cases rule that an action need include

only the portions of the claim due at the time of commencing

that action, frequently observing that the opportunity to file

a supplemental complaint is not an obligation.”). Indeed, the

Seventh Circuit has gone so far as to call it the “federal rule,”

Ellis v. CCA of Tennessee LLC, 650 F.3d 640, 652 (7th Cir.

2011), and the Supreme Court spoke approvingly of this line

of cases in Whole Woman’s Health v. Hellerstedt, 136 S. Ct.

2292, 2305 (2016).

We have applied this rule in the context of California

law, L.A. Branch NAACP v. L.A. Unified Sch. Dist., 750 F.2d

731, 739 (9th Cir. 1984) (en banc), 2 and as an alternative

holding in a footnote, Cabrera v. City of Huntington Park,

159 F.3d 374, 382 n.12 (9th Cir. 1998), but not expounded

on it further. We now confirm that for purposes of federal

common law, claim preclusion does not apply to claims that

accrue after the filing of the operative complaint.

Absent such rule, we would be left with the more

difficult question of whether the plaintiff could have

amended her complaint in the midst of litigation to add

claims which accrued after filing. Apart from amendments

as a matter of course, which can occur only once, early in

litigation, parties can amend their complaint before trial only

with consent of opposing parties or leave of the district court.

See Fed. R. Civ. P. 15(a). And only at the district court’s

2

We apply the res judicata rule of the jurisdiction that heard the

initial case. See Allen v. McCurry, 449 U.S. 90, 96 (1980).

HOWARD V. CITY OF COOS BAY 11

discretion are parties permitted to file a supplemental

complaint. See Fed. R. Civ. P. 15(d).

Determining whether the district court or opposing

parties might have permitted the plaintiff to amend her

complaint in Howard I would require us to engage in the sort

of analysis conducted by the district court—asking the extent

to which discovery would have been disrupted if Howard

had filed a supplemental pleading three months before trial.

Such approach “would only invite disputes.” Morgan,

648 F.3d at 178. Given the importance of “certainty and

predictability,” id., we agree that a bright-line rule which

asks only whether a claim could have been brought at the

time the operative complaint in the prior suit was filed is

appropriate.

2

Applying this rule, it is plain that the claims in Howard

I and Howard II are not identical. Howard could not have

brought retaliation claims in Howard I based on the City’s

refusal to consider her for the Finance Director position in

2011. Howard filed her initial complaint in Howard I on

September 14, 2009, and she filed a second amended

complaint on October 26, 2010. She had not yet applied for

the Finance Director position at the time of her first or

second amended complaints, let alone received the July 6,

2011 rejection letter.

Thus, Howard’s retaliation claims in this suit arose from

events that occurred after she filed her complaint in Howard

I, and they are not barred by claim preclusion.

12 HOWARD V. CITY OF COOS BAY

III

Next, Howard maintains that the district court erred by

determining that her requests for damages were barred by

issue preclusion. The City argues that issue preclusion

should prevent Howard from receiving damages, and thus

effectively bar her claims.

Issue preclusion, or collateral estoppel, “bars ‘successive

litigation of an issue of fact or law actually litigated and

resolved in a valid court determination essential to the prior

judgment,’ even if the issue recurs in the context of a

different claim.” Taylor v. Sturgell, 553 U.S. 880, 892

(2008) (quoting New Hampshire v. Maine, 532 U.S. 742,

748–49 (2001)). The party asserting issue preclusion must

demonstrate: “(1) the issue at stake was identical in both

proceedings; (2) the issue was actually litigated and decided

in the prior proceedings; (3) there was a full and fair

opportunity to litigate the issue; and (4) the issue was

necessary to decide the merits.” Oyeniran v. Holder,

672 F.3d 800, 806 (9th Cir. 2012).

The parties focus on the first prong—whether the issue

is identical.

A

Typically, we apply four factors (known as the

Restatement factors) to evaluate the question:

(1) is there a substantial overlap between the

evidence or argument to be advanced in

the second proceeding and that advanced

in the first?

HOWARD V. CITY OF COOS BAY 13

(2) does the new evidence or argument

involve the application of the same rule

of law as that involved in the prior

proceeding?

(3) could pretrial preparation and discovery

related to the matter presented in the first

action reasonably be expected to have

embraced the matter sought to be

presented in the second?

(4) how closely related are the claims

involved in the two proceedings?

Resolution Tr. Corp. v. Keating, 186 F.3d 1110, 1116 (9th

Cir. 1999) (quoting Kamilche Co. v. United States, 53 F.3d

1059, 1062 (9th Cir. 1995)); see also Restatement (Second)

of Judgments § 27 cmt. c (Am. Law Inst. 1982). Nonetheless,

these factors are not applied mechanistically. See, e.g.,

Syverson v. Int’l Bus. Machs. Corp., 472 F.3d 1072, 1080–

81 (9th Cir. 2007) (mentioning only three of the four

factors); Cent. Delta Water Agency v. United States,

306 F.3d 938, 953 (9th Cir. 2002) (evaluating whether the

facts were identical without discussing the factors).

1

We begin with the first factor—whether there is “a

substantial overlap between the evidence or argument to be

advanced” in the two proceedings regarding damages.

Restatement (Second) of Judgments § 27 cmt. c.

As the district court observed, there is no doubt that

Howard has requested the same type of damages in both

suits. In Howard I, she sought damages for “lost income, lost

benefits and seniority, commuting and housing expenses,” in

14 HOWARD V. CITY OF COOS BAY

addition to “loss of future income and impairment of earning

capacity,” as well as “emotional distress, public humiliation,

damage to her reputation, depression, loss of dignity and self

esteem, anxiety, loss of companionship . . . and loss of

enjoyment of life.” In this suit, Howard is requesting

“economic losses including but not limited to lost income,

lost benefits and seniority, and housing expenses,” in

addition to “loss of future income and impairment of earning

capacity,” as well as “emotional distress.” And in both suits,

Howard requested punitive damages.

Nonetheless, merely asking for the same type of relief is

not sufficient justification for issue preclusion. It is not at all

surprising that the same types of claims—First Amendment

retaliation and state whistleblower claims 3—would produce

the same types of damages. Asserting the same cause of

action in two separate suits does not mean the underlying

claims, which are based on different facts, are inherently

identical. Likewise, requesting the same types of damages

does not make two issues necessarily identical. 4 The more

important question is whether Howard requested the same

scope of damages. In other words, did Howard request

damages covering the same factual losses in both suits?

In Howard I, Howard testified that as a result of her

termination she had lost $33,522 in past wages and $12,699

in past benefits, and that she would lose $778,864 in future

wages and $65,009 in future benefits (based on the

3

In both suits, Howard brought First Amendment retaliation claims

under 42 U.S.C. § 1983. In Howard I, she also brought a whistleblower

claim under Or. Rev. Stat. § 659A.203, and in this suit she brings a

whistleblower claim under Or. Rev. Stat. § 659A.230.

4

Nonetheless, requesting the same types of damages may count in

favor of the second and fourth Restatement factors. See infra Part III.A.2.

HOWARD V. CITY OF COOS BAY 15

differences between her salary and benefits at the time of

trial and her prior salary and benefits as the Finance Director

for Coos Bay, carried forward until she was eligible for

retirement in 2028). She testified that she had spent $736 in

job search fees. Additionally, she spoke of the “emotional

distress” she experienced as a result of being fired.

In evaluating damages, the court in Howard I instructed

the jury that it should consider:

1) the mental and emotional pain and

suffering experienced;

2) the reasonable value of wages or earnings

lost to the present time; and

3) the reasonable value of wages or earnings

which with reasonable probability will be

lost in the future.

Thus, the City maintains that because Howard requested

future damages and non-economic damages for the

emotional distress resulting from “the fact that she no longer

was working for the City” in Howard I, the issue of damages

has already been decided. The City argues that Howard

should be precluded from receiving a double recovery in this

suit. 5

5

Although Howard requested future damages, the extent to which

she received them is unclear. The jury returned a verdict that awarded

$150,000 in economic damages, and $50,000 in non-economic damages

against the City. But the jury did not specify the extent to which the

$150,000 economic damage award was intended to cover future loss. If

the jury credited all of Howard’s alleged accrued salary losses of $46,221

($33,522 in wages and $12,699 in benefits), then it would appear that she

16 HOWARD V. CITY OF COOS BAY

Howard has not provided us with the damage

computation she would request were this suit to continue to

trial. But since she calculated her economic losses up to the

time of her retirement in Howard I, presumably her projected

economic losses of not being hired for the City Finance

Director position in 2011 would be almost identical to the

projected economic losses of being terminated in 2008,

except that they would begin in 2011 and not 2008.

And, thus, because the scope of economic damages

necessarily overlaps, the evidence supporting these damages

must also overlap. 6 Again, while Howard has not directed us

to the exact evidence she would use to support her request

for economic damages in this suit, it seems certain that the

evidence would be largely the same—testimony regarding

the difference between the salary and benefits she would

have enjoyed as Finance Director for the City of Coos Bay

and her position as Administrative Services Director with the

City of Brookings, for example.

received $103,779 for future losses ($150,000–$46,221). There is no

way to know the precise amount, but it seems certain that at least some

substantial portion of the $150,000 award was provided for future salary

and benefit losses.

6

The district court focused on the evidentiary overlap surrounding

the July 2011 rejection letter, which was admitted for purposes of

damages in Howard I, and forms the foundation of this suit. Nonetheless,

while the letter was relevant to show Howard’s ongoing economic

damages in Howard I —continued difficulty in obtaining employment in

Coos Bay—it says little about ongoing economic damages resulting from

the City’s refusal to hire her in 2011. In this suit the letter establishes the

fact that the City rejected Howard’s 2011 application—the cornerstone

of her retaliation claims. Thus, although there is overlap, the letter serves

a different function in each suit.

HOWARD V. CITY OF COOS BAY 17

Thus, since the evidence and arguments supporting

economic damages in both suits substantially overlap, the

issue of economic damages is largely identical under the first

Restatement factor. 7

The same is not the case for non-economic and punitive

damages. There is little doubt that Howard could argue that

she suffered new emotional distress as a result of the 2011

rejection, apart from the emotional distress she suffered as a

result of her 2008 termination. Nonetheless, since the July

2011 letter was admitted in Howard I, we agree with the

district court that such letter could be used to demonstrate

humiliation and embarrassment (and thus, support Howard’s

request for non-economic damages) in both suits. However,

it is easy to imagine Howard presenting additional evidence

of emotional distress resulting from the City’s refusal to

rehire her in 2011 that was not encompassed by the letter in

Howard I (such as testimony regarding mental anxiety she

experienced as a result of her rejection). Thus, while there

may be some evidentiary overlap, it is insufficient to

preclude all requests for non-economic damages.

More importantly, Howard’s request for punitive

damages in this suit is based on her claim that the City

7

It may be possible that Howard could demonstrate new economic

damages—for example, if she could show that her losses were more than

projected in 2011. But see Restatement (Second) of Judgments § 25 cmt.

c (“Accordingly, if a plaintiff who has recovered a judgment against a

defendant in a certain amount becomes dissatisfied with his recovery and

commences a second action to obtain increased damages, the court will

hold him precluded; his claim has been merged in the judgment and may

not be split.”). We need not resolve the question here.

18 HOWARD V. CITY OF COOS BAY

retaliated against her for filing Howard I. 8 Since this is a new

alleged violation, the evidence and arguments supporting

such relief (which are largely dependent on proof of the

underlying claim) are distinct. There is no overlap.

Thus, the first Restatement factor favors a finding of

identity of economic damages but not necessarily non-

economic damages and certainly not punitive damages.

2

The other Restatement factors are less conclusive in

making an identical issue determination. To the extent this

suit includes new evidence and arguments, it involves the

application of the same law of damages (factor two) as

Howard I since Howard is bringing similar types of legal

claims—retaliation in violation of the First Amendment and

the Oregon whistleblower law (factor four). Yet, this is not

particularly informative on the question of preclusion since

neither party appears to have challenged the application of

the legal rules governing damages (such as statutory damage

caps) in either suit. See Restatement (Second) of Judgments

§ 27 cmt. c, illus. 6.

It seems unlikely that pretrial preparation in Howard I

(factor three) could have been expected to embrace all of the

issues in this suit since the alleged actions occurred during

the midst of the discovery period in Howard I. Although the

July 2011 letter was produced during Howard I, no one

could have expected Howard to prepare for questions

regarding the propriety of punitive damages for the

8

In Howard I, the jury only considered punitive damages against

former City Manager Freeman, who was not involved in the City’s 2011

rejection of Howard’s application.

HOWARD V. CITY OF COOS BAY 19

retaliation she allegedly experienced for filing Howard I—

since no such claim was brought. Nonetheless, preparation

for Howard I obviously included the issue of future

economic damages—as Howard’s own testimony in

Howard I indicates. Thus, not surprisingly, the third factor

tends to suggest that the issue of punitive damages is not

identical.

Finally, as discussed in the context of claim preclusion,

while the underlying claims of retaliation in both cases are

undoubtedly similar, they also involve distinct factual

scenarios, so the fourth factor provides limited insight on the

identical issue question.

3

In sum, while the second through fourth Restatement

factors are not especially illuminating, under the first factor,

the issue of economic damages is largely identical; there is a

possibility of partial overlap on the issue of non-economic

damages; and the issue of punitive damages is wholly

separate.

B

Apart from the identicality prong, the parties do not

seriously contest the application of the other criteria for issue

preclusion. There is no dispute that the question of damages

actually was litigated in Howard I, and there was a full and

fair opportunity to do so. While the issue of damages was

not necessary to decide the merits of Howard’s claims,

making a damages determination became a necessary

consequence of Howard’s victory on the merits. See

Oyeniran, 672 F.3d at 806.

20 HOWARD V. CITY OF COOS BAY

Thus, we conclude that Howard is precluded from

recovering economic damages which she has already

received—namely the loss of the salary and benefits she

could have earned as the City’s Finance Director. Because

Howard presents a new request for punitive damages,

however, we must consider the merits of her suit against

Craddock, 9 and because she may be able to demonstrate new

non-economic damages, we will consider the merits of her

suit against the City. 10

IV

Howard’s First Amendment retaliation claim alleges that

the City refused to hire her for the Finance Director position

in 2011 because of her suit in Howard I.

To establish a prima facie case of First Amendment

retaliation, a plaintiff must prove that “(1) she engaged in

protected speech; (2) the defendants took an ‘adverse

employment action’ against her; and (3) her speech was a

‘substantial or motivating’ factor for the adverse

employment action.” Thomas v. City of Beaverton, 379 F.3d

802, 808 (9th Cir. 2004) (quoting Coszalter v. City of Salem,

320 F.3d 968, 973 (9th Cir. 2003)). If a plaintiff can

demonstrate a prima facie case,

Punitive damages cannot be awarded against the City. See City of

9

Newport v. Fact Concerts, Inc., 453 U.S. 247, 267 (1981).

10

Given our conclusion on the merits of Howard’s First Amendment

and state law claims, we need not decide the extent to which Howard’s

request for non-economic damages should be partially precluded on the

basis of the July 2011 letter, or whether she may be able to request any

new economic damages.

HOWARD V. CITY OF COOS BAY 21

the burden shifts to the employer to

demonstrate either that, under the balancing

test established by Pickering v. Board of

Education, 391 U.S. 563, 568 (1968), the

employer’s legitimate administrative

interests outweigh the employee’s First

Amendment rights or that, under the mixed

motive analysis established by Mt. Healthy

City School District Board of Education v.

Doyle, 429 U.S. 274, 287 (1977), the

employer “would have reached the same

decision even in the absence of the

[employee’s] protected conduct.”

Id. (quoting Ulrich v. City & Cty. of San Francisco, 308 F.3d

968, 976–77 (9th Cir. 2002)) (citations partially omitted).

A

The parties do not contest that Howard’s speech—her

suit in Howard I—was protected. Thus, for purposes of our

analysis, we assume without deciding that Howard has

demonstrated the first factor. 11

B

The parties disagree on precisely what “adverse

employment action” was taken by the City. Howard

11

It is not a foregone conclusion that Howard’s speech actually was

protected, however. “[A] public employee’s litigation must involve a

matter of public concern in order to be protected by either the Petition

Clause or the Speech Clause of the First Amendment.” Rendish v. City

of Tacoma, 123 F.3d 1216, 1220 (9th Cir. 1997). The City does not

address whether Howard’s suit involved a matter of public concern, so

we will not do so either.

22 HOWARD V. CITY OF COOS BAY

contends that the adverse action occurred when the City

hired Baker, while the City maintains that the adverse action

occurred when it sent the July 2011 rejection letter. Because

there is no question that some adverse action occurred,

however, we need not resolve this issue.

C

The parties strongly dispute whether Howard’s suit was

a “substantial” factor in the City’s decision not to hire her.

Howard relies on circumstantial evidence to argue that the

City excluded her from consideration for the 2011 position

because of her suit.

Circumstantial evidence can create “a genuine issue of

material fact on the question of retaliatory motive” when the

plaintiff provides “evidence that his employer knew of his

speech” 12 and further “produce[s] evidence of at least one of

the following three types”: (1) showing a “proximity in time

between the protected action and the allegedly retaliatory

employment decision” such that a “jury logically could infer

[that the plaintiff] was terminated in retaliation for his

speech”; (2) demonstrating “that his employer expressed

opposition to his speech . . . to him or to others”; or

(3) showing that “his employer’s proffered explanations for

the adverse employment action were false and pretextual.”

Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,

751–52 (9th Cir. 2001).

Howard maintains that “the sequence of events”

demonstrates that the City refused to hire her because of her

12

Since Howard brought suit against the City, there is no question

that the City was aware of her speech.

HOWARD V. CITY OF COOS BAY 23

suit. While we reject Howard’s contention that the proximity

of Baker’s hiring to the jury verdict demonstrates

causation, 13 there is no doubt that the City’s decision not to

hire Howard—whether dated to the July 2011 letter or

Baker’s hiring in November—occurred in the midst of the

litigation in Howard I, and thus, raises the specter of

causation.

We have held that speech which occurred within “three

to eight months [of the adverse employment action] is easily

within a time range that can support an inference of

retaliation.” Coszalter v. City of Salem, 320 F.3d 968, 977

(9th Cir. 2003). Even “an eleven-month gap in time is within

the range that has been found to support an inference that an

employment decision was retaliatory.” Allen v. Iranon,

283 F.3d 1070, 1078 (9th Cir. 2002).

However, we are mindful of avoiding “the logical fallacy

of post hoc, ergo propter hoc.” Huskey v. City of San Jose,

204 F.3d 893, 899 (9th Cir. 2000). “[A] specified time

period cannot be a mechanically applied criterion. A rule that

any period over a certain time is per se too long (or,

conversely, a rule that any period under a certain time is per

se short enough) would be unrealistically simplistic.”

Coszalter, 320 F.3d at 977–78. Because “there is no set time

13

The record indicates that that Baker was hired before the jury

reached its verdict in Howard I. Craddock, the City Manager, offered

Baker the job as City Finance Director on October 25, 2011, and she

accepted on October 26. Although the formal paperwork surrounding

Baker’s hiring was not completed until November 7 or 8, the promotion

became effective on November 1. The jury reached its verdict on

November 2, 2011. As the July 2011 letter itself demonstrates, any

rejection of Howard based on her speech must have been the result of

her decision to file the suit, not the verdict she won.

24 HOWARD V. CITY OF COOS BAY

. . . [w]hether an adverse employment action is intended to

be retaliatory is a question of fact that must be decided in the

light of the timing and the surrounding circumstances.” Id.

at 978.

Howard’s application was rejected while her suit was

ongoing—there was no delay between her speech and the

adverse employment action. Not only was there a direct

correlation of time between her suit and rejection, the

adverse employment action occurred in the context of the

protracted heat of trial preparation. 14 Against the backdrop

of such litigation, the timing of her rejection creates a strong

inference that the City acted with a retaliatory motive.

D

Thus, assuming that Howard has presented a prima facie

case—protected speech, an adverse employment action, and

retaliatory motive (based on the chronological connection

between her suit and rejection)—we must consider whether

the City has carried its Mt. Healthy burden, demonstrating

that it “would have reached the same decision even in the

absence of [Howard’s] protected conduct.” Thomas,

379 F.3d at 808 (quoting Ulrich, 308 F.3d at 976–77).

14

Howard does not discuss the second type of evidence—whether

the City opposed her speech. See Keyser, 265 F.3d at 751–52. Of course

the City necessarily opposed her speech by serving as the opposing party

in her suit. The City was bound to respond to her complaint, however, so

the probative value of the City’s opposition may be limited—the City

did not speak initially of its own accord. Nonetheless, the fact that the

City was an opposing party in litigation underscores the adversarial

relationship between the City and Howard at the time of her 2011

application.

HOWARD V. CITY OF COOS BAY 25

The City maintains that even without Howard’s suit, it

would have refused to hire her because she had been

previously terminated from the same position for cause.

Although Howard was later vindicated at trial, when the City

sent the rejection letter in July, the City’s records indicated

for-cause termination. It does not appear unreasonable for

the City to reject her application on the basis of the record

that existed at the time, even if the purported reason for the

termination was later found pretextual. 15 To conclude

otherwise would require public employers to conduct a new

investigation into whether a prior employee’s termination

was justified whenever such employee applied for a job

opening. 16

Howard argues that the City’s decision to hire Baker,

who was significantly less-qualified than Howard, indicates

that its stated reason for rejecting her application—that she

previously had been terminated for cause—was false.

Indeed, Howard contends that the City violated its own

policy, which required employment to be “on the basis of

merit, qualifications and competence,” in hiring Baker

because she lacked Howard’s credentials. 17

15

Notably, when the City rejected her application, it had already

been vindicated on all of Howard’s other claims—whistleblower

retaliation, wrongful discharge, and due process violation.

16

Further, Craddock was not the City Manager when Howard was

fired. Thus, to any extent that Howard’s termination may have been the

result of a personal vendetta between Howard and former City Manager

Freeman, such dynamic had changed in 2011.

17

Howard also points out that City policy also required all

candidates to complete an application; Baker never did. However, City

policy permits the City Manager to “authorize a less formal hiring

26 HOWARD V. CITY OF COOS BAY

Howard is correct that, when viewed in isolation,

Howard’s greater credentials and the City’s apparent

violation of its own policies might support an inference of

retaliation. Baker was not a CPA; Howard was. Howard had

nineteen years of accounting experience (and ten years as

City Finance Director); Baker had worked in public finance

for three years.

However, when viewed in the broader hiring context, the

City’s actions are far less suspicious. Over the course of the

two hiring periods for the Finance Director position, the City

received a total of fifty-two applications, and it interviewed

seven applicants. The top finalist in the first hiring period

had thirty-three years of overall accounting experience (and

twenty-nine years of municipal accounting experience) and

the second finalist had twenty-two years of accounting

experience. Thus, two of the finalists had greater accounting

experience than Howard, and the City rejected both of them,

hiring Baker instead. As the City argues, this strongly

suggests that the City hired Baker on the basis of her

performance as Acting Finance Director, rather than as an

attempt to retaliate against Howard.

Indeed, the record demonstrates that the City repeatedly

pursued Baker specifically. According to the City, Craddock

first asked Baker to consider the City Finance Director

position permanently when she was appointed Acting

Finance Director in May 2011 (prior to Howard’s

application). Baker declined. After completing the first

hiring period, which lasted from June to July (and rejecting

candidates with 20–30 years of accounting experience),

Craddock again approached Baker about applying for the

process.” Thus, the fact that Baker never completed a formal application

is not particularly informative.

HOWARD V. CITY OF COOS BAY 27

job, and she again declined. At that point, Craddock

explained to the City Council that it could take a leisurely

approach to filling the position since Baker was “doing a

great job” as Acting Director. The City commenced a second

hiring period in August. After interviewing more applicants

and failing to find someone suitable, Craddock approached

Baker a third time about the position in October, and she

finally assented. According to Craddock, Baker “was the

best fit for the City.” The City’s repeated attempts to

convince Baker to apply for the position, coupled with its

rejection of candidates with even more experience than

Howard, makes clear that the City would have hired Baker

even if Howard had never brought suit.

Thus, no reasonable jury could find that Howard’s suit

was a substantial reason for the City’s refusal to consider her

for the Finance Director position in 2011. Rightly or

wrongly, because of her previous termination, the City has

demonstrated that it would have rejected Howard’s

application in 2011, irrespective of her suit, and hired Baker

instead. Accordingly, the district court correctly concluded

that Howard’s First Amendment claim does not survive

summary judgment. 18

V

Finally, Howard claims that the City violated Oregon’s

Whistleblower Act by rejecting her application. The relevant

provision provides:

18

Because we conclude that Howard’s First Amendment claim fails

on its merits, there is no need to address separately whether Craddock is

entitled to qualified immunity. See Glenn v. Washington Cty., 673 F.3d

864, 870 (9th Cir. 2011).

28 HOWARD V. CITY OF COOS BAY

It is an unlawful employment practice 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

criminal activity by any person, has in good

faith caused a complainant’s information or

complaint to be filed against any person, has

in good faith cooperated with any law

enforcement agency conducting a criminal

investigation, has in good faith brought a

civil proceeding against an employer or has

testified in good faith at a civil proceeding or

criminal trial.

Or. Rev. Stat. § 659A.230(1) (2016) (emphasis added).

The City maintains that because Howard was not an

employee when it rejected her 2011 application, her claims

necessarily fail as a matter of law. Howard argues that

§ 659A.230 should be read to permit claims of retaliation

brought by former employees.

A

The Act does not specifically provide a definition of

“employee” for § 659A.230. “If the legislature has not

defined a statutory term, Oregon courts ‘ordinarily look to

the plain meaning of a statute’s text as a key first step in

determining what particular terms mean.’” Brunozzi v.

Cable Commc’ns, Inc., 851 F.3d 990, 998–99 (9th Cir. 2017)

(quoting Comcast Corp. v. Dept. of Revenue, 337 P.3d 768,

776 (Or. 2014). In so doing, Oregon courts frequently

“consult dictionar[ies],” Comcast Corp., 337 P.3d at 776,

HOWARD V. CITY OF COOS BAY 29

and examine the “context of the statute,” Roberts v. Oregon

Mut. Ins. Co., 255 P.3d 628, 632 (Or. Ct. App. 2011).

Finally, Oregon courts consider “any helpful legislative

history offered by the parties.” Id.

Webster’s Third New International Dictionary (2002)

defines “employee” as “one employed by another.” 19

Black’s Law Dictionary (10th ed. 2014) defines “employee”

as “[s]omeone who works in the service of another person

(the employer).” (emphasis added). Both of these definitions

seem to suggest that to be an “employee” one must be

actively employed.

Similarly, although the Oregon Whistleblower Act does

not provide a definition of “employee” as used in

§ 659A.230, a closely related provision of the Act, Or. Rev.

Stat. § 659A.200, provides a number of definitions of

“employee.” These definitions all refer to “a person . . .

[e]mployed” or “[s]erving”––present tense––rather than

someone who was employed or will be employed––past or

future tenses. Thus, Or. Rev. Stat. § 659A.200 also seems to

suggest that one must be actively employed to count as an

“employee.”

However, the strongest argument against applying

§ 659A.230 to Howard is the language surrounding

“employee” in the statute. Section 659A.230 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,

19

The Oregon Supreme Court “most often looks to the definitions

provided in Webster’s Third New Int’l Dictionary,” although when the

“term is a legal one” it looks to “legal dictionaries” such as Black’s Law

Dictionary. Comcast Corp., 337 P.3d at 776 & n.7.

30 HOWARD V. CITY OF COOS BAY

conditions or privileges of employment.” Prohibiting

demotion or suspension “with regard to promotion,

compensation or other terms, conditions or privileges of

employment” necessarily applies only to current employees.

While, in the abstract, discrimination or retaliation might

be read to encompass non-employees, it is unclear how

discrimination or retaliation “with regard to promotion,

compensation or other terms, conditions or privileges of

employment” could affect Howard. In order to experience

discrimination, one must be entitled to “promotion,

compensation or other terms, conditions or privileges of

employment.” A mere job applicant is not in such a position,

regardless of any status as a former employee. 20

Thus, the statutory context bolsters the dictionary

definitions. 21 Under the plain meaning of § 659A.230,

Howard cannot bring a claim as an “employee.”

B

Howard contends that the Oregon Whistleblower Act

should be construed analogously to Title VII of the United

States Code, specifically, 42 U.S.C. § 2000e-3(a), and thus,

following Robinson v. Shell Oil Co., 519 U.S. 337, 346

(1997), the term “employee” should be read to include

20

However, this logic does not necessarily entail that a former

employee could never bring suit under § 659A.230. For example, if

one’s employment was terminated, and she never received her final

paycheck, it is conceivable that she could have a claim of retaliation

“with regard to . . . compensation” based on a benefit that accrued while

she was an employee. We need not resolve whether § 659A.230 permits

suit in such situation here.

21

The parties do not point us to “any helpful legislative history,”

Roberts, 255 P.3d at 632, so we need not consider it.

HOWARD V. CITY OF COOS BAY 31

“former employees.” Cf. Hunt v. City of Portland, 726 F.

Supp. 2d 1244, 1256–57 (D. Or. 2010), aff’d, 496 F. App’x

751 (9th Cir. 2012), and aff’d, 599 F. App’x 620 (9th Cir.

2013).

Howard is correct “that Oregon courts may examine

federal precedent for contextual support when they construe

state statutes that parallel federal law.” Portland State Univ.

Chapter of Am. Ass’n of Univ. Professors v. Portland State

Univ., 291 P.3d 658, 666 (Or. 2012). And the Oregon

Supreme Court has “looked to Title VII precedent to analyze

claims brought under other, analogous provisions of ORS

chapter 659A.” Id. The key, however, is that the provisions

must be “analogous.” Oregon courts have applied Title VII

precedent to subsections of chapter 659A that they found

“virtually verbatim” or “substantially similar.” Id. See also

Vaughn v. Pac. Nw. Bell Tel. Co., 611 P.2d 281, 289 (Or.

1980) (noting the similarity of Or. Rev. Stat. §§ 659.121(1),

659.410, and 659.415 to provisions of Title VII).

While Howard maintains that Or. Rev. Stat. § 659A.230

should be construed analogously to 42 U.S.C. § 2000e-3(a),

the Oregon Supreme Court already has disposed of this

claim by holding that a different state law, Or. Rev. Stat.

§ 659A.030(1)(f), is directly analogous to 42 U.S.C.

§ 2000e-3(a). See Portland State Univ., 291 P.3d at 667;

Pool v. VanRheen, 297 F.3d 899, 910 (9th Cir. 2002).

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

32 HOWARD V. CITY OF COOS BAY

assisted in any proceeding under this chapter

or has attempted to do so.

(emphasis added). Thus, because it prohibits discrimination

against “any other person,” by its plain terms,

§ 659A.030(1)(f) would likely apply to former employees

like Howard. Similarly, 42 U.S.C. § 2000e-3(a) makes it

“unlawful . . . for an employer to discriminate against any of

his employees or applicants for employment.” This

provision also would likely apply to Howard because she

was an “applicant[] for employment.”

In contrast to Or. Rev. Stat. § 659A.030(1)(f) and

42 U.S.C. § 2000e-3(a), both of which are broad

antidiscrimination provisions, Or. Rev. Stat. § 659A.230

applies only to retaliation against “an employee.” We

assume that the Oregon legislature’s decision to use

“employee” in § 659A.230, but “any other person” in

§ 659A.030(1)(f), was deliberate. The obvious implication

of Portland State University is that if Or. Rev. Stat.

§ 659A.030(1)(f) is directly analogous 42 U.S.C. § 2000e-

3(a), then Or. Rev. Stat. § 659A.230 is not an equivalent

provision and should not be construed identically. 22

22

There is no doubt that the Oregon legislature knows how to enable

non-employees to bring discrimination claims when it so chooses. In

addition to § 659A.030(1)(f), Or. Rev. Stat. § 659A.030(1)(a) makes it

unlawful for an employer “to refuse to hire or employ [an] individual or

to bar or discharge [an] individual from employment” on the basis of

“race, color, religion, sex, sexual orientation, national origin, marital

status or age.”

HOWARD V. CITY OF COOS BAY 33

C

Absent any indication that the term “employee” as used

in § 659A.230 is ambiguous, 23 we apply the plain meaning

of the word as referring to those who have “an existing

employment relationship with the employer in question.”

Robinson, 519 U.S. at 341; see also Walters v. Metro. Educ.

Enters, Inc., 519 U.S. 202, 207 (1997) (“In common

parlance, an employer ‘has’ an employee if he maintains an

employment relationship with that individual.”). Thus,

Howard’s claim under Or. Rev. Stat. § 659A.230 fails as a

matter of law.

VI

For the foregoing reasons, the district court’s judgment

is AFFIRMED.

23

In Robinson, the Supreme Court concluded that the term

“employee” was ambiguous on the basis of its surrounding statutory

context. 519 U.S. at 341–45. Howard has offered no such argumentation

here. Instead, as discussed, under Oregon law the use of the term

“employee” contrasts with the use of “any other person” or “individual”

in similar employment discrimination provisions. Compare Or. Rev.

Stat. § 659A.230 with § 659A.030(1)(f) and § 659A.030(1)(a).