Demaray v. Dept. of Environmental Quality

DEITS, J.,

concurring in part; dissenting in part.

I agree with the majority that the trial court properly granted summary judgment to DEQ on plaintiffs section 1983 claim and to the individually named defendants on plaintiffs state tort law claims, for the reasons stated by the majority. I also agree that the trial court erred in granting summary judgment to DEQ on plaintiffs state tort law claims. I disagree, however, with the majority’s conclusion that the trial court erred in granting summary judgment to the individually named defendants on plaintiffs section 1983 claim.

Defendants are entitled to summary judgment on plaintiffs section 1983 claim, because there is no genuine issue of material fact and they are entitled to judgment as a matter of law. ORCP 47C. Here, plaintiff alleges that he was discharged for “debating” the requirements of statutes, rules and regulations with his supervisors. Defendants assert that plaintiff was discharged for insubordination, because he failed to follow the instructions of his superiors, in particular, he failed to comply with his supervisor’s instructions regarding four “Notices of Non-compliance” (NONs) prepared by plaintiff. On January 5, 1990, Davis, plaintiffs supervisor, specifically instructed plaintiff to change four NONs to comply with a new agency directive. It is undisputed that plaintiff refused to change the NONs because he believed that the *505 agency policy violated state statutes, rules, and regulations. Plaintiff decided to hold the NONs and, on January 16, sent an intra-office memorandum to Davis saying:

“Neither you nor I have the right to disregard the specific language of the rules. I strongly object to your counterproductive actions to deter appropriate enforcement of the environmental laws and rules. This job is difficult enough with your cooperation; without it, the job is impossible. Please reconsider the direction of your memo in light of these facts. I am holding the letters that you changed for your response.”

As a result of that memorandum, on January 22, Davis met with plaintiff to discuss the new agency directive. At the end of the meeting, Davis instructed plaintiff to change the NONs. Plaintiff persisted in his view of the state rules and regulations. On January 24, Davis again met with plaintiff and informed him that he was misinterpreting the statutes. Plaintiff continued to disagree with his supervisor. Davis and plaintiff then spoke with Davis’ supervisor, who also told plaintiff that he was misinterpreting the statutes and rules. Eventually Davis and plaintiff discussed the rules and regulations with the primary drafter of the rules, who also told plaintiff that his interpretation was wrong. Following these discussions, Davis again told plaintiff to send out the revised NONs. It is undisputed that plaintiff failed to send out the revised NONs as instructed. Instead, on February 7, he resubmitted the NONs to Davis without the appropriate changes. In his affidavit, plaintiff does not deny that he failed to comply with Davis’ instruction regarding the four NONs. 1 *506 Davis determined that he had been insubordinate and fired him on that ground.

I agree with the majority that the affidavits create an issue of fact regarding the basis of plaintiffs discharge. However, this factual issue is not material and, therefore, is insufficient to preclude summary judgment. Even if we assume, as plaintiff argues, that he was fired for “debating” the law with his supervisors, defendants are entitled to judgment as a matter of law, because they have established that plaintiffs discharge was legitimate under the balancing test of Pickering v. Board of Education, 391 US 563 , 88 S Ct 1731 , 20 L Ed 2d 811 (1968).

As Justice Unis explained in his dissenting opinion in Shockey v. City of Portland, 313 Or 414, 435 , 837 P2d 505 (1992), cert den _ US _, 113 S Ct 1813 (1993): 2

“The Supreme Court has framed a two-prong test to determine whether a public employee’s speech is protected by the First Amendment. First, the employee’s speech must involve a matter of public concern. Second, the employee’s First Amendment rights in commenting on a matter of public concern must not be outweighed by the public employer’s interest in providing public services efficiently.”

I agree with the majority that, based on plaintiffs allegations, at least some of his statements were on a matter of public concern. Even though most of plaintiffs speech was not directed at the public, it did concern whether the agency was complying with its statutory mandates and, based on Shockey v. City of Portland, supra, and Robson v. Klamath County Board of Health, 105 Or App 213 , 804 P2d 1187 , on *507 recon 109 Or App 242 , 818 P2d 990 (1991), rev den 314 Or 176 (1992), that was a matter of public concern.

However, even assuming that his statements were on a matter of public concern, we must still determine whether his speech is protected under the First Amendment. In Pickering v. Board of Education, supra, the court said:

“The problem in any case is to arrive at a balance between the interests of the [public 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. ’ ’ 391 US at 568 .

If the public employer’s interest in efficiency outweighs the employee’s right to freedom of expression, the employee’s discharge on that basis will not offend the First Amendment. Rankin v. McPherson, 483 US 378 , 107 S Ct 2891 , 97 L Ed 2d 315 (1987). The outcome of that balancing test is a question of law for the court. Connick v. Meyers, 461 US 138 , 148 n 7, 103 S Ct 1684 , 75 L Ed 2d 708 (1983); Robson v. Klamath County Board of Health, supra.

As the Supreme Court explained in Rankin v. McPherson:

“In performing the balancing, the statement will not be considered in a vacuum; the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose. * * * We have previously recognized as pertinent considerations whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty or confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” 483 US at 388 . (Emphasis supplied; citations omitted.)

In applying the Pickering balancing test, we give wide deference to the employer’s assessment that an employee’s speech may be disruptive of its efficient operations. Shockey v. City of Portland, supra, 313 Or at 436 (Unis, J., dissenting); see also Connick v. Meyers, supra, 461 US at 151-52 .

The Supreme Court emphasized in Shockey that the context of plaintiffs speech is the “most important factor,” even in the balancing phase of the analysis. In evaluating the *508 context of plaintiffs statements, we consider all of the circumstances in which the statement was made, including “plaintiffs motives in making the statements, as well as the subject matter of the statements.” Robson v. Klamath County Board of Health, supra, 105 Or App at 218 . Here, there is evidence that the time, manner, and place of plaintiffs speech disrupted defendants’ operations, undermined Davis’ authority, destroyed close working relationships and impaired work-place discipline. Those factors weigh in favor of concluding that defendants’ interest in promoting the efficiency of public services outweighs plaintiffs interest in freedom of expression. Plaintiffs speech occurred, for the most part, at work, during work hours, and was not directed at the public. Additionally, plaintiff has a history of progressive discipline for being argumentative and failing to follow the instructions of his supervisor. That context detracts from plaintiffs First Amendment interests in his speech and squarely implicates defendants’ competing interest in the efficiency of its operations.

Defendants’ uncontradicted evidence shows that it was justified in determining that plaintiffs speech was disrupting its efficient operations. As plaintiffs affidavit discloses, in his position with DEQ, he was responsible for enforcing the environmental statutes, rules and regulations and for issuing NONs to the public. His persistence in “debating” the new agency directive with his superiors showed an unwillingness to follow the policies of DEQ and interfered with his job duties. Because of his speech, plaintiff delayed the issuance of the NONs by almost 30 days and caused Davis to hold several meetings with him and to enlist the aid of his own superior in an attempt to persuade plaintiff to accept the new agency directive. Here, defendants determined that plaintiffs exercise of his free speech rights was disrupting its efficient operations, because it undermined his superiors’ confidence in him, impeded the performance of his duties and/ or interfered with the regular operations of the enterprise.

The majority’s assertion that there is no evidence “that plaintiffs speech * * *, by itself, * * * caused disruption,” 127 Or App at 500, is incorrect. There is evidence, noted above, that plaintiffs speech caused his superiors to lose confidence in his ability to carry out the policies of the *509 agency, that it strained close working relationships, and that it disrupted defendants’ operations by causing significant delays.

The majority also incorrectly asserts that

“a critical question bearing on the third factor under the Pickering balance is the degree to which plaintiffs disagreement with his supervisors about the law was unfounded. Under that factor, if his view of the law was well founded, we would give less weight to defendants’ competing interest in ensuring that plaintiffs ability to perform his duties is not diminished by having made unfounded statements. If plaintiffs view of the law was not well founded, then defendants’ competing interest would have greater significance.” 127 Or App at 500.

Pickering holds that if a plaintiff knew or should have known that the statements were false, that speech would not be protected by the First Amendment and the discharge would not implicate constitutional considerations. 391 US at 574 and n 6; see also, Shockey v. City of Portland, supra, 313 Or at 434 (Unis, J., dissenting). However, Pickering did not hold that if it is established that plaintiffs statements were true, they are automatically protected by the First Amendment. Defendants do not assert that plaintiff was fired for allegedly making false statements. It is immaterial in this case whether plaintiffs view of the law was right or wrong, because defendants are not asserting that plaintiffs ability to perform his job has been diminished by his having made unfounded statements. The issue is whether plaintiff had a First Amendment right to say what he said when and where he said it. In other words, we must determine if plaintiffs First Amendment interests in speaking on a matter of public concern outweigh defendants’ interests in efficiently performing the public responsibilities entrusted to it. As long as plaintiff is speaking on a matter of public concern, his interest is the same whether he is right or wrong. 3 See Robson v. Klamath County Board of Health, supra, 109 Or App at 250-252 (Warren, J., specially concurring).

*510 I am not unsympathetic to an employee’s right, even obligation, to express views regarding his or her job responsibilities. However, at some point, even a public employer must be entitled to protect the efficiency of its operations. Under these circumstances, defendants’ interest in providing public services efficiently outweighed plaintiffs right to freedom of expression. I would affirm the trial court’s grant of summary judgment to defendants on the section 1983 claim.

Warren, Riggs and Edmonds, JJ., join in this opinion.

In his reply brief, plaintiff asserts that he did adequately deny refusing to follow his supervisor’s instructions by stating that he has never been “insubordinate, unwilling to perform, engaged in intentional misconduct, * * * unfit to render effective service, or committed any malfeasance.” However, these are merely conclusory statements that are inadequate to create a genuine issue of material fact. See Beachcraft Marine Corp. v. Koster, 116 Or App 133 , 840 P2d 1336 (1992) (mere denials are not facts underlying the conclusion that the consideration was adequate and, therefore, do not establish that there is no genuine issue of material fact). In his complaint, plaintiff alleged that Davis had “shrugged his shoulders” in acquiesce with his interpretation of the rules and based on this non-verbal cue, he ‘ ‘reasonably believed that defendant Davis acquiesced in [his] analysis and position.” In his affidavit, Davis said that he had no recollection of shrugging his shoulders and that he instructed plaintiff to send out the four NONs with the revisions that Davis had made. Both plaintiff and Davis agree that plaintiff did not send out the four NONs. Instead, plaintiff resubmitted them to Davis. In his affidavit, plaintiff asserts:

‘ ‘I have never objected to my supervisor materially changing any of my work product, providing the supervisor claimed ownership of it when the change *506 contradicted the clear mandates of statute, rule or regulation. I did object, however, to being ordered to sign my supervisor’s work as if it were my own. I am a professional in the field of environmental investigation and enforcement, and I believe that I should not be forced to sign a document as if it contained my professional judgment, when, in fact, it was the contrary judgment of my supervisor; I feel this is especially so when my supervisor’s judgment ran contrary to the laws I was hired to enforce.” (Emphasis in original.)

Plaintiffs affidavit does not respond to Davis’ sworn testimony that he instructed plaintiff to send out the revised NONs.

Although Justice Unis dissented in Shockey v. City of Portland, supra, a majority of the court agreed upon his methodology, but disagreed with his application of that methodology to the particular facts of the case. 313 Or at 429 .

If defendants sought to justify plaintiffs discharge on the ground that he could no longer perform his job duties because of his false statements, as in Pickering v. Board of Education, supra, then the truth or falsity of his statements would be a material consideration.