The opinion
FILED
NOT FOR PUBLICATION OCT 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KRISTINE M. PHILLIPS, No. 11-35833
Plaintiff - Appellant, D.C. No. 6:09-cv-06061-MO
v.
MEMORANDUM *
MARION COUNTY SHERIFF’S
OFFICE, a department of Marion County;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted October 9, 2012
Portland, Oregon
Before: SILVERMAN, CLIFTON, and N.R. SMITH, Circuit Judges.
Plaintiff Kristine Phillips appeals the district court’s order granting judgment
as a matter of law and an evidentiary ruling made during trial. Specifically,
Phillips appeals the district court’s order holding that she lacked a constitutionally
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
protected property interest in the arbitration award granting reinstatement of her
employment and that Defendant Isham was entitled to qualified immunity. She
also appeals the district court’s evidentiary ruling that excluded evidence of
Isham’s resignation as the County sheriff on the grounds that it was unduly
prejudicial.
We review a grant of judgment as a matter of law de novo. Costa v. Desert
Palace, Inc., 299 F.3d 838, 859 (9th Cir. 2002).
Because there were no facts in dispute, whether Phillips had a
constitutionally protected property interest was a question of law for the judge.
See e.g., Walker v. City of Berkeley, 951 F.2d 182, 183 (9th Cir. 1991).
The district court appears to have misread the Collective Bargaining
Agreement between the County and Sheriff’s Association. The CBA requires the
County to engage in binding arbitration if the Association (the employee’s
bargaining agent) wishes to engage in arbitration. The CBA refers to the decision
to participate in binding arbitration as the Association’s “right.” Oregon law
specifically allows for such an arrangement as a way to resolve employee
grievances. Or. Rev. Stat. § 243.706(1). The County’s agreement in the CBA to
submit to arbitration for all grievances, and to accept the decision of the arbitrator
as binding, was “intended to be a significant substantive restriction on [the
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County’s] decision making.” See Mustafa v. Clark Cnty. Sch. Dist., 157 F.3d
1169, 1178 (9th Cir. 1998) (internal quotations marks omitted). When the
arbitrator reinstated Phillips, the County did not have discretion to ignore the
reinstatement award; it had to abide by it. Phillips, therefore, had a “legitimate
claim of entitlement,” to the outcome of the arbitrator’s award and had a property
interest in her arbitrator-ordered reinstatement. See Sanchez v. City of Santa Ana,
915 F.2d 424, 428 (9th Cir. 1990).
Accordingly, the district court erred in holding that Phillips did not have a
constitutionally protected property interest in her arbitrator-ordered reinstatement.
As for whether Isham should be entitled to qualified immunity, the only
question is whether it was clearly established that Isham had to abide by the
arbitrator’s award. Isham argues he reasonably believed that, pursuant to
§ 243.706(1), reinstating Phillips after her misconduct was clearly contrary to the
public policies barring the mistreatment of, and the unjustified use of force against,
inmates.
A reasonable official would understand that Phillips had to be reinstated.
This issue was definitely resolved several years before the events at issue here by
Washington County Police Officers’ Association v. Washington County, 335 Or.
198, 205–06 (2003), remanded to 187 Or. App. 686 (2003). The Oregon Supreme
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Court held that, under § 243.706(1), “the enforceability of the arbitrator’s award
does not turn on whether the employee’s [misconduct] violated some public policy.
The proper inquiry, instead, is whether the award itself complies with the specified
kind of public policy requirements.” Id. at 205 (emphasis in original).
Therefore, it should have been sufficiently clear to Isham, in June 2008, that
he could not refuse to follow the arbitrator’s award ordering reinstatement simply
based on Phillips’s misconduct. The only way Isham could have refused to enforce
the arbitration award was if “some statute or judicial opinion outline, characterize,
or delimit a public policy against reinstating a police officer whom an investigation
has found [to have engaged in the misconduct Phillips was found to have
committed] and [only if] the statute or decision articulate[s] that policy in such a
way as to leave no serious doubt or question respecting the content or import of
that policy[.]” See Washington County, 187 Or. App. at 691–92 (internal quotation
marks omitted). Isham did not rely on any statute or judicial decision that
precludes reinstatement in Phillips’s instance at the time he refused to reinstate her,
nor does he identify one now. As the Oregon Supreme Court made clear in
Washington County, Isham could not refuse to enforce the arbitrator’s award under
§ 243.706(1) based on Phillips’ misconduct, as he did. Accordingly, the district
court erred in granting Isham qualified immunity.
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Because we are reversing the district court’s order granting judgment for
Defendants, we need not address Phillips’ alternative ground for appeal regarding
the district court’s evidentiary ruling.
For the foregoing reasons, we REVERSE the district court’s judgment as a
matter of law for Defendants, and order the district court to enter judgment as a
matter of law for Phillips and to reinstate the jury’s damages verdict. We
VACATE the district court’s award of costs against Phillips and REMAND the
issue of costs for determination by the district court.
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