Federal District Court Opinions

Plaintiff, v. BENTON COUNTY, Defendant. Civil. No.
05-6123-HO. United States District Court, D. Oregon.
December 29, 2006


MICHAEL HOGAN, District Judge

Defendant Benton County interviewed plaintiff John Delia in
May and June of 2004 for the position of law enforcement
lieutenant. After a lengthy application process, defendant
extended plaintiff a conditional job offer contingent on
his passing a background investigation, medical examination
and psychological testing. Defendant revoked the job offer
after the Sheriff’s Office purportedly discovered that
plaintiff was not suited for the job requirements based on
performance issues in a Page 2 similar position at his
prior job. Plaintiff alleges that defendant either hired
plaintiff and then discharged him or refused to hire based
on various unlawful discriminatory grounds. Specifically,
plaintiff alleges claims for: (1) First Amendment
retaliation pursuant to 42 U.S.C. § 1983; (2)
religious discrimination pursuant to 42 U.S.C. §
2000e-2(1); (3) discrimination for protected speech
pursuant to 42 U.S.C. § 2000e-3; (4) whistle blower
retaliation for reporting violations of law by a former
employer pursuant to ORS § 659A.203; (5) retaliation
for pursuing a civil proceeding against a former employer
pursuant to ORS § 659A.230; and (6) common law
wrongful discharge. Defendant moves for summary judgment on
all of plaintiff’s claims.

Plaintiff has withdrawn his claim for religious
discrimination and summary judgment is denied as moot on
that claim. Defendant also moves to strike certain exhibits
filed by plaintiff in response to the motion for summary

A. First Amendment Retaliation Claim

In plaintiff’s first claim, he alleges violation of 42
U.S.C. § 1983 in that defendant deprived plaintiff of
his right to free speech. Plaintiff alleges that in April
of 2001, he sued his former employer, The City of Aberdeen,
Washington, alleging certain improper governmental actions
taken by the former chief of police and others within the
Aberdeen Police Department. Plaintiff Page 3 suffered
subsequent adverse employment actions as a result of
reporting the conduct, including discharge. Plaintiff
contends, in this case, that he was discharged or not hired
in retaliation for the previous suit against the City of
Aberdeen. Plaintiff sues defendant Benton County for the
conduct of Sheriff James Swinyard with respect to his
decision to discharge plaintiff or alternatively not to
hire plaintiff.

Congress did not intend local governments to be held
liable under section 1983 unless action pursuant to
official government policy of some nature caused a
constitutional tort.” Monell v. New York City Dept. of
Social Services, 436 U.S. 658, 691 (1978).[fn1] A local
government may be responsible for a single decision by
government policymakers under appropriate circumstances.
Where a decision to adopt a particular course of action is
properly made by that government’s authorized
decisionmakers, it represents an act of official government
“policy” as that term is commonly understood. Pembaur v.
City of Cincinnati, 475 U.S. 469, 481 (1986). Where action
is directed by those who establish governmental policy, the
local government is equally responsible whether that action
is to be taken only once or to be taken repeatedly. See,
id. However, not every decision by governmental Page 4
officers automatically subjects the government to section
1983 liability. Government liability attaches only where
the decisionmaker possesses final authority to establish
government policy with respect to the action ordered. Id.
The fact that a particular official, even a policymaking
official, has discretion in the exercise of particular
functions does not, without more, give rise to government
liability based on an exercise of that discretion. The
official must also be responsible for establishing final
government policy respecting such activity before the
County can be held liable. See, id. at 482-83.

Sheriff Swinyard states in his affidavit that his decision
not to hire plaintiff was an administrative decision that
had nothing to do with any policy or custom of the County.

Plaintiff concedes that where a county sheriff has
discretion to hire and fire employees without also being
the county official responsible for establishing county
policy, a decision respecting employment would not give
rise to county liability. However, plaintiff contends that
the County Commissioners delegated its power to establish
final employment policy because Swinyard was solely
responsible for the decision whether to hire an applicant
for the position of lieutenant or fire the lieutenant after
he had been employed.

Plaintiff must show that the County Commissioners
delegated hire and firing authority to the Sheriff, the
exercise of which was Page 5 final and not subject to
review. Plaintiff offers Swinyard’s statement that he is
authorized to make hiring and firing decisions. Affidavit
of James W. Swinyard at ¶ 13 (#57). Plaintiff also
offers the statement of Undersheriff Diana Simpson that the
Sheriff has the sole decision to hire and fire. Diana
Simpson Deposition at pp. 55-56 (attached to #103). While
plaintiff acknowledges that the Sheriff had to check with
the County Commissioners regarding whether he could hire
plaintiff at a step hire than beginning wage, Affidavit of
John Delia at ¶ 18. (#71), defendant does not offer
the portion of the County policy in which the Commissioners
retain some authority over final decisions to hire and fire
and official personnel policy. Thus, issues of fact are
present as to whether Swinyard was a final policymaker as
to official personnel action. The motion for summary
judgment is denied on this basis at this time.

In addition, defendant claims there is no evidence to
suggest that plaintiff’s statements with respect to the
Aberdeen police department were in any way a factor in the
decision not to hire him.

In order to establish a prima facie case of retaliation
under the First Amendment, [plaintiff] must show that (1)
[he] engaged in protected speech; (2) the defendants took
an “adverse employment action” against [him]; and (3)
[his] speech was a “substantial or motivating” factor for
the adverse employment action.

Thomas v. City of Beaverton, 379 F.3d 802, 807-08 (9th Cir.
2004). Page 6

Once a prima facie claim is established, the burden shifts
to the defendant 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
defendant would have reached the same decision even in the
absence of the plaintiff’s protected speech. Ulrich v. City
& County of San Francisco, 308 F.3d 968, 976-77 (9th Cir.

Defendant assumes for the purpose of this motion that
plaintiff engaged in protected speech, but contends that
there is no evidence to establish that defendant’s actions
were intended to deter plaintiff’s speech or that his
speech was a substantial motivating factor in the decision
respecting plaintiff’s employment. Defendant asserts that
Swinyard declined to hire plaintiff due solely to concerns
over plaintiff’s ability to perform the administrative and
managerial aspects of the Lieutenant’s position

Plaintiff asserts that he raised complaints regarding the
management and ethical decisions of his supervisor, the
Aberdeen chief of police, while he was a captain with the
Aberdeen police. Plaintiff pursued his complaints through
the court system in 2001. Page 7 Plaintiff contends that
defendant retaliated against him in 2004 for raising issues
of wrongful conduct by Aberdeen officials.

Plaintiff contends that he was given an unconditional job
offer.[fn2] Even if he had been unconditionally offered the
job, this does not establish motive for withdrawing the job

Plaintiff contends that the failure of Benton County to
conduct an exit interview or to articulate a reason for the
discharge (or failure to hire) until after this litigation
had been filed is evidence of the discriminatory basis for
the employment decision. Plaintiff also relies on failure
to follow policies such as making conditional job offers in
writing to establish discriminatory motivation. In
addition, plaintiff contends that background investigator
Andrew Olsen’s antipathy toward him also provides evidence
that plaintiff’s Aberdeen complaints were a motivating
factor for the employment decision.

With respect to Olsen’s alleged antipathy toward
plaintiff, plaintiff attempts to portray Olsen as opposed
to his employment. But as to motivation, at best plaintiff
offers a hearsay statement that requires speculation to
surmise motivation based on the Aberdeen complaints.
Plaintiff offers the Affidavit of Douglas Page 8 Lewis
that Olsen asked him whether plaintiff was the kind of
subordinate who would take the fall for Swinyard should he
implement a department policy that later goes bad to protect
the Sheriff’s political image. Lewis interpreted the
question as reminiscent of the request of the Aberdeen
police chief to have plaintiff overlook activities that
plaintiff later complained about. See Affidavit of Douglas
Lewis (#80) at ¶ 3. This hearsay statement and
subsequent speculative interpretation is insufficient to
establish issues of fact as to the motivation of Olsen and
Swinyard with respect to Swinyard’s employment

It appears that plaintiff can only present evidence that he
was conditionally offered the job of Lieutenant with Benton
County, that three years prior he had made complaints about
his former employer, and that the job offer was
subsequently withdrawn. There is scant evidence of
motivation with, but some evidence that Swinyard gained
more knowledge about the Aberdeen lawsuit after the
conditional offer, but prior to his decision not to
hire.[fn4] Page 9

Plaintiff does not dispute that Swinyard had some knowledge
of the Aberdeen lawsuit and still made the conditional
offer. To conclude that Swinyard was motivated in part by
plaintiff’s protected speech in the Aberdeen case when he
decided to pull the job offer borders on speculation.
Nonetheless, the court is hesitant to grant summary
judgment on the record at this time. Evidence that Swinyard
became fully aware of the protected speech activities after
the background investigation does raise an issue of fact.

There is also the issue of whether plaintiff surrendered
his first Amendment rights with respect to his Aberdeen
statements. The First Amendment protects a public
employee’s right, in certain circumstances, to speak as a
citizen addressing matters of public concern. See,
Pickering 391 U.S. at 568. Courts need to arrive at a
balance between the interests of the government employer,
as a citizen, in commenting upon matters of public concern
and the interest of the government, as an employer, in
promoting the efficiency of the public services it performs
through its employees. Id.

Pickering identifies two inquiries to guide interpretation
of the constitutional protections accorded to public
employee speech. The first requires determining whether the
employee spoke as a citizen on a matter of public concern,
and, if the answer is yes, then the question becomes
whether the relevant government entity Page 10 had an
adequate justification for treating the employee
differently from any other member of the general public.
Id. However, when public employees make statements pursuant
to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer
discipline. See Garcetti v. Ceballos, 126 S.Ct. 1951, 1960
(2006). Defendant contends that plaintiff had a duty as a
captain in the Aberdeen police department to report ethical
violations and mismanagement of his department. However,
plaintiff was not acting in his official capacity when he
sued the Aberdeen police department for retaliating and
discriminating against him. Moreover, Benton County has no
reason to regulate plaintiff’s speech made with respect to
his employment for another employer.

B. Title VII Retaliation for Protected Speech

Plaintiff alleges that defendant discriminated against
plaintiff for opposing unlawful employment practices by the
City of Aberdeen in violation of 42 U.S.C. §
2000e-3. In order to prevail on this claim, plaintiff must
show that the position for which he applied was eliminated
or not available to him because of his protected
activities. Ruggles v. California Polytechnic State
University, 797 F.2d 782, 786 (9th Cir. 1986). The burden
then shifts to defendant to articulate some legitimate,
Page 11 nondiscriminatory reason for the adverse employment
decision. If the defendant is successful, the plaintiff
must then prove by a preponderance of the evidence that the
proffered reasons are pretexts for retaliation or that a
discriminatory reason more likely motivated the employer’s
action. Id. The evidence that knowledge of the complaints
plaintiff made in the Aberdeen case became more concrete
after the background investigation makes summary judgment
on this claim inappropriate at this time.

C. ORS § 659A.203 and ORS § 659A.230

Plaintiff alleges state law claims for unlawful employment
practices. These statutes proscribe certain activities by
employers against employees. As noted above, plaintiff
acknowledged that his job offer was conditional. The
evidence plaintiff provides to support preparations for his
employment both by the County and his family do not create
a triable issue of fact as to whether he was an employee at
the time defendant allegedly made the decision to revoke
the job offer for unlawful reasons.

Plaintiff also contends that applicants for employment are
protected by the above statutes. However, plaintiff provides
no authority for such proposition and the clear language of
the statute indicates that they apply in the
employee/employer context. Compare ORS § 659A.030
(provides protections to applicants as well as employees)
with ORS § 659A.203 and 230 (does not include Page
12 applicants). The motion for summary judgment is granted
as to these claims.

D. Wrongful Discharge

Plaintiff alleges that defendant wrongfully discharged or
wrongfully refused to hire plaintiff under Oregon common

Generally, in the absence of contract or legislation to
the contrary, an employer can discharge an employee at any
time and for any cause. Conversely, an employee can quit at
any time for any cause. Nees v. Hocks, 272 Or. 210, 216
(1975). But, there can be circumstances in which an
employer discharges an employee for such a socially
undesirable motive that the employer must respond in
damages for any injury done. Id. An employer commits the
tort of wrongful discharge when it terminates employment
for exercising a job-related right, for complying with a
public duty or for performing an important obligation in
the public interest. Sheets v. Knight, 308 Or. 220, 230-31
(1989) (abrogated on other grounds McGanty v. Staudenraus,
321 Or. 532 (1995)). Plaintiff provides no authority that
an applicant for employment can be considered an employee
for purposes of wrongful discharge. The motion for summary
judgment is granted as to this claim. Page 13

E. Motion to Strike

Defendant moves to strike much of the materials plaintiff
submitted in opposition to the motion for summary judgment.
Plaintiff has not responded to the motion, but did file
supplements to plaintiff’s summary judgment response in an
apparent attempt to cure some of the deficiencies noted by

1. Affidavit of John Delia

a. Paragraphs 1-10

Defendant moves to strike the recitation of plaintiff’s
professional history as immaterial. The motion to strike is
denied as plaintiff’s qualifications can rebut defendant’s
reasons for failing to hire.

b. Paragraph 15

Plaintiff states what the Candidate Scoring Table
categories were and where he scored in comparison to other
applicants. Defendant objects as to foundation and
relevance. The motion is granted as plaintiff does not
provide the documents themselves or an basis for

c. Paragraphs 18-24

Defendant moves to strike plaintiff’s recounting of
conversations he had with his wife and with Benton County
Sheriff Page 14 as immaterial and hearsay. Much of the
information is used as an attempt to show that plaintiff
had been hired unconditionally and while some of it might
be admissible for effect on the listener, it should not be
used to assert the truth of the matter asserted especially
in light of the fact that plaintiff acknowledged a
conditional offer of employment.

d. Paragraph 26

Plaintiff states that he has compared Olsen’s background
investigation with a copy of Olsen’s handwritten notes, that
he prepared a comparison chart, and then he asserts there
are 45 positive comments omitted from the written report.
Defendant moves to strike as immaterial. The motion is
denied as plaintiff may use such evidence (assuming he can
produce the notes and report for authentication) to rebut
the legitimate reason offered by defendant for failure to

2. Exhibit 2 Comparison

This is the comparison chart noted above. Defendant moves
to strike as not properly authenticated. The motion is
granted with leave to authenticate. Page 15

3. Affidavit Excerpts of John Delia, Debra Delia, James
Swinyard, Diana Simpson, Andrew Olson and Libet Hatch

Defendant moves to strike because plaintiff failed to
properly authenticate the depositions with a reporter’s
certification. Plaintiff has supplemented the record with
reporters’ certification and the motion is denied with
regard to these documents.

Defendant also objects to the failure to highlight the
portions of the depositions that plaintiff seeks to rely
upon. The motion to strike probably is denied on this basis
as well.

Defendant also raises hearsay objections and relevance
objections. Hearsay was not considered for the truth of the
matter asserted and to the extent plaintiff relies on
purely speculative statements they were not considered

4. Exhibit 11 (Notes)

Defendant objects for lack of foundation. These are
apparently Olsen’s notes. The motion to strike is granted
with leave to authenticate.

5. Affidavit of Douglas Lewis

To the extent this affidavit contains hearsay or contains
pure speculation, it has not been considered. Page 16

6. Affidavit of Erik Kupka

To the extent hearsay is contained in this affidavit or
contains a lack of knowledge for the statements made, it has
not been considered.


For the reasons stated above, defendant’s motion for
summary judgment (#51) is granted in part and denied in
part and defendant’s motion to strike (#99) is granted in
part and denied in part.

[fn1] Defendant argues that plaintiff fails to even plead
the alleged constitutional violation occurred as a result
of the implementation of a custom or policy of Benton
County. But given Swenyard’s hiring and firing authority
there could be a set of facts to establish the requisite
policymaking with regard to personnel matters such as
eligibility requirements for various positions. This is a
motion for summary judgment and the court will examine the
evidence plaintiff plans to offer rather than dismissing
the claim on the pleadings.

[fn2] However, plaintiff acknowledged during his deposition
that he had been given a conditional job offer based upon
passing the psychological and background test. Deposition
of John Delia at p. 22 (attached to affidavit of Kimberlee
C. Morrow (#54) as exhibit A). Other than his own
statements now, plaintiff offers only hearsay to the
contrary. Although plaintiff contends that it is the policy
of Benton County to make conditional job offers in writing
and since no writing has been produced that there is an
issue of fact, plaintiff’s acknowledgment that the offer
was conditional leads to only one reasonable conclusion.

[fn3] However, Lewis can provide evidence of the fact that
the question was asked regardless of truth of the matter
asserted and the lack of any note of this question in the
report could provide a credibility issue for Olsen as to
whether he set in motion the events that lead to plaintiff
not being hired. Lewis did state that he told Olsen he did
not think plaintiff would compromise his values in the
manner suggested.

[fn4] Plaintiff suggests that Swinyard testified at his
deposition in March of 2006 that he knew very little about
the Aberdeen lawsuit prior to the background investigation
but that he stated in May of 2006 that he discussed the
lawsuit extensively prior to the background check.
Plaintiff does not provide a cite for the deposition.
Plaintiff does provide similar evidence concerning Olsen in
which he testified he only knew what was on the back of the
application and then stated later that he was fully
informed. Plaintiff interprets this evidence as providing
issues of fact as to motivation.