United States District Court, W.D. Washington, Seattle
ORDER ON MOTION TO AMEND, MOTIONS FOR SUMMARY JUDGMENT
MARSHA J. PECHMAN, Chief District Judge.
THIS MATTER comes before the Court on Defendant City of Edmonds's Motion for Summary Judgment (Dkt. No. 52), Defendant David Earling's Motion for Summary Judgment (Dkt. No. 53), Defendant Micheal Cooper's Motion for Summary Judgment (Dkt. No. 54), and Plaintiff Debi Humann's Motion to Amend the Complaint (Dkt. No. 64). Having read Humann's Response to the City's Motion (Dkt. No. 52), the City's Reply (Dkt. No. 76); Humann's Response to Earling's Motion (Dkt. No. 70), Earling's Reply (Dkt. No. 77); Humann's Response to Cooper's Motion (Dkt. No. 71), Cooper's Reply (Dkt. No. 75); the City's Response to Humann's Motion to Amend (Dkt. No. 66), Cooper's Response to Humann's Motion to Amend (Dkt. No. 68), Humann's Reply (Dkt. No. 79); and all related papers; the Court hereby GRANTS the Motion to Amend, GRANTS Earling's Motion for Summary Judgment solely because Earling is entitled to qualified immunity for his actions, DENIES the City's Motion for Summary Judgment including insofar as Earling's actions give rise to the City's liability for First Amendment retaliation, and DENIES Cooper's Motion for Summary Judgment except insofar as Plaintiff concedes he is not liable for First Amendment retaliation.
Ms. Humann was Human Resources Director for the City of Edmonds beginning in 2008 and continuing under former Mayor Cooper. (Am. Compl., Dkt. No. 10 at 3; Humann Dep., Dkt. No. 57 at 11.) During 2010 and 2011 Ms. Humann raised and/or relayed concerns about the compensation, hours worked, timesheets, and vacation and sick leave of Mayor Cooper's frequently absent executive assistant Kimberly Cole. (Cooper Dep., Dkt. No. 72 at 109-110, 114; Humann Decl., Dkt. No. 73 at 4-6.) Concerns about Ms. Cole's compensation and hours were also raised in the press. (Cooper Dep., Dkt. No. 72 at 55-56.) Ms. Cole complained to Mayor Cooper about Ms. Humann's interest in her work schedule, and Mayor Cooper directed Ms. Humann to desist from monitoring Ms. Cole, but Ms. Cole was not wholly satisfied by his response. (See id. at 119.)
In approximately August 2011, the Washington State Auditor's Office began to investigate Ms. Cole's compensation after receiving an anonymous tip (which Ms. Humann denies submitting). (Dkt. No. 73 at 8.) Ms. Humann cooperated with the investigation and provided information to the Auditor on two occasions in September. (Id.) Soon afterward, the mayor fired Ms. Humann. (Id. at 10.) At the same time, Mayor Cooper placed Ms. Cole on paid administrative leave. (Cooper Dep., Dkt. No. 72 at 124.)
In conjunction with the firing, Mayor Cooper issued a statement via email to members of the City Council and the press:
Debi Humann is no longer employed by the City. This is not a decision that came lightly but a change was needed.
The city's ability to function relies on a relationship between the Mayor and staff that is based on the highest level of trust and confidentiality. That level of trust has deteriorated to a place where I no longer had confidence in her ability to do the job and to work effectively with me.
In order to have the public trust the city needs a committed staff that maintains the highest level of trust with the mayor and council.
(Dkt. No. 55, Ex. 10 at 41; Williams Dep., Ex. 1, Dkt. No. 72-2, Ex. U at 103.)
Mayor Cooper gave a similar statement to the Seattle Times: "Over time there had been a series of events that just led to a breakdown in trust, and she couldn't work effectively as part of my team." (Cooper Dep., Ex. 11, Dkt. No. 72 at 169.)
Ms. Humann then retained counsel, filed a whistleblower complaint pursuant to state law and the policies of the City, and issued a press release about her actions. (Dkt. No. 73 at 11, 26-31.) The complaint and press release referred to Ms. Cole's hours and compensation and alleged "improper payroll practices." (Id. at 26.) The City launched an investigation into Ms. Humann's complaint as required by state law. (See Barrett Bloom Decl., Dkt. No. 26-5 at 2-6.) During the investigation, the election took place and Mayor Cooper was defeated by Mr. Earling. (Earling Decl. & Ex. C, Dkt. No. 59 at 4 & 13.) Before Mayor Earling took office, the Edmonds City Council voted to eliminate funding for the Human Resources Director position in the next year but left the final decision about staffing to the incoming mayor. (Edmonds City Council Minutes, Taraday Decl., Dkt. No. 58 at 53-61; Plunkett Dep., Dkt. No. 72, Ex. 2 at 4-6.) After Mayor Earling took office, he reviewed the situation and decided to temporarily reinstate Ms. Humann for the remainder of the year and then lay her off at the beginning of 2012, purportedly in deference to the City Council's elimination of the position. (See Earling Dep., Dkt. No. 72-1 at 6-7.) Mayor Earling gave out the following rationale in a press release from the Mayor's Office: "Having been fully advised, I was not able to reach a conclusion that Mayor Cooper retaliated against Debi Humann, but in light of various apparent misunderstandings between Mr. Cooper and Ms. Humann, I am going to give Ms. Humann the benefit of the doubt. As a result, I am reinstating Ms. Humann as the Human Resources Director for the remainder of the year. At the end of the year, she will be laid off due to the City Council's elimination of the position." (Dkt. No. 72-1 at 36.)
Meanwhile, a separation agreement Mayor Cooper had reached with Ms. Cole was voided by the City Council. (Cooper Termination Memo, Dkt. No. 72 at 159-62; Bloom Decl., Ex. A.)
The City of Edmonds brings its Motion for Summary Judgment on Plaintiff's § 1983 due process claim regarding her initial firing in conjunction with Mayor Cooper's allegedly stigmatizing statements, Plaintiff's claim for defamation regarding Mayor Cooper's statements, Plaintiff's First Amendment retaliation claim regarding the City Council's elimination of funding for Plaintiff's position and Mayor Earling's actions in hiring and laying off Plaintiff, and Plaintiff's claim for wrongful discharge in violation of public policy. (See Dkt. No. 52.) Former Mayor Cooper seeks summary judgment on the same claims, though Plaintiff does not oppose summary judgment on Mayor Cooper's liability for First Amendment retaliation. (See Dkt. No. 54; Dkt. No. 71 at 10-11 n.11.) Mayor Earling seeks summary judgment on the First Amendment retaliation claim on the basis of qualified immunity. (See Dkt. No. 52.)
Finally, Plaintiff seeks leave to file a second amended complaint (Dkt. No. 64). Because the proposed amendments relate to the wrongful discharge claim, they will be discussed in that section.
I. Legal Standard
Federal Rule 56(a) provides that the court shall grant summary judgment if the movant shows that 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). In determining whether a factual dispute requiring trial exists, the court must view the record in the light most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). All material facts alleged by the nonmoving party are assumed to be true, and all inferences must be drawn in that party's favor. Davis v. Team Elec. Co. , 520 F.3d 1080, 1088 (9th Cir. 2008).
A dispute about a material fact is "genuine" only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248. There is no genuine issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986).
II. Against City/Mayor Earling: First Amendment Retaliation
A public employee is entitled to protection against retaliation by the employer for speech on a matter of public concern. See Garcetti v. Ceballos , 547 U.S. 410, 417 (2006). To establish a prima facie case for First Amendment retaliation, Plaintiff must show she (1) spoke on a matter of public concern; (2) spoke as a private citizen and not within the scope of her official duties as a public employee; and (3) suffered an adverse employment action, for which her protected speech was a substantial or motivating factor. See Karl v. City of Mountlake Terrace , 678 F.3d 1062, 1068 (9th Cir. 2012). If the plaintiff meets her burden on these first three steps, the burden shifts to the government to show: (4) legitimate administrative interests outweigh the employee's First Amendment rights; or (5) the employer would have taken the adverse employment action even absent the protected speech. Id.
Plaintiff focuses on two potential adverse employment events: the elimination of funding for her position by the Edmonds City Council and Mayor Earling's decision to rehire her and then lay her off. (Dkt. No. 10 at 14-17.) Plaintiff concedes there was no First Amendment retaliation on the part of Mayor Cooper. (Dkt. No. 71 at 10-11 n.11.)
A. City Council and Legislative Motive
In its Motion for Summary Judgment, the City argues inquiry into the motivation of the legislature is prohibited, meaning Plaintiff's claim regarding the elimination of her position in the City Council budget would founder at step 3 (adverse employment action, speech was substantial or motivating factor). (Dkt. No. 52 at 14-16.) The City is correct that courts generally disfavor inquiry into legislative motive, and the Supreme Court has established certain doctrines to prevent judicial interference with the legislative process. For example, in Bogan v. Scott Harris, the Supreme Court established absolute immunity for local legislators against personal liability for their legislative acts. 523 U.S. 22 (1998). (Contrary to the City's argument, municipalities do not enjoy the same immunity. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit , 507 U.S. 163, 166 (1993).) In addition, courts often find it unnecessary to delve into the subjective motives of legislators to determine the constitutionality of a generally applicable law. See City of Las Vegas v. Foley , 747 F.2d 1294, 1297-98 (9th Cir. 1984).
Still, motive is an indispensible part of the unique test for First Amendment retaliation, and the City's argument would immunize even a baldly retaliatory city council decision from constitutional review. This interpretation is unnecessary. The 9th Circuit has scrutinized multi-member city councils for improper motive in other ...