The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court
MEMORANDUM DECISION AND ORDER
Before the Court is Defendants' motion for Summary Judgment (Dkt. 32). The Court heard oral argument on February 22, 2012. Being familiar with the record and pleadings, and counsel's arguments at hearing, the Court will deny Defendants' motion.
1.Plaintiff Douglass A. Brown's Work History
Douglass A. Brown was hired by the City of Caldwell in 2000. Second Am. Compl., ¶ 10, Dkt. 6-1. As a Fire Marshall and Deputy Fire Chief, Brown's duties included responding to public inquiries on Uniform Fire Code, Uniform Building Code and other related guiding principles of fire prevention and public safety, and working closely with the Fire Chief on code interpretation and applications to balance the need of developers and municipal fire safety. The City also asked Brown to keep the Fire Chief, as well as designated others, informed about work progress, including present and potential work problems and suggestions for new or improved ways of addressing such problems. Johnson Aff., Ex. 1, Dkt. 40-4 at 18-19.,
Brown performed well and received a fair amount of positive feedback while employed for the City of Caldwell. Over the course of his employment he received seven pay raises via an "Annual Performance Pay Increase." Id.at 9-16. The final increase occurred on September 15, 2008. Id. at 9. In addition to annual pay increases, Brown was nominated for "Employee of the Month" in June 2006, and was described by Chief Wendelsdorf as "one of the most dedicated persons in the fire service." Johnson Aff., Ex. 1, Dkt. 40-2 at 21. Brown also received a "Spot Award" in 2007 for going above and beyond the call of duty. Wendelsdorf Depo. 45:1-17, Ex. 4, Dkt. 38-6 at 12.
For Brown's August 2008 performance evaluation, Chief Wendelsdorf gave Brown an "Exceeds Expectation" rating in 14 out of the 24 areas listed. Id. The form explains it thus, "Exceeds Expectations = consistently exceeds expectations, is recognized by peers and/or customers in his/her work performance and provides a positive example for other." Id. at 10. While the evaluation noted the "need to work on a positive and supportive attitude," Johnson Aff., Ex. 1, Dkt 40-2 at 11, Brown met performance standards in all other areas. Id. at 9-17. This was the only performance evaluation Brown received while under Chief Wendelsdorf. Wendelsdorf Depo. 34:8-25, Ex. 4, Dkt. 38-6 at 11.
2.Alleged Protected Activity
Although Brown had received positive feedback up to that point, this changed in mid-September 2008 when Brown noticed the Can-Act theater company occupying an unsafe building. Johnson Aff., Ex. 1, Dkt 40-2 at 7. Brown believed the building was owned by the City and emailed City Officials about his safety concerns: "[T]he City Code require[s] such activities be held in safe venues. This isn't. Liability? You bet." Id. (punctuation omitted). Brown also wanted to know "who allowed the use of [the building] for a theatrical company to move in?" Id. at 8.
Two days after Brown sent the email, a meeting was held to discuss it. Handwritten notes recorded Mayor Nancolas' comments:"I want you to ask questions, it's just how you ask the questions. Once you put it in writing.you create a liability -- your emails are subject to public records request. Pick up the phone and ask the question." Johnson Aff., Ex. 1, Dkt. 41-5 at 14-17. Brown later testified that he understood the Mayor's comments to mean that the City did not like how Brown was reporting code violations "in that by documenting anything in writing, you're creating a liability to (sic) the City." Brown Depo., Ex. 6, Dkt. 39-1 at 17. This incident was eventually noted as a reason for firing Brown. Johnson Aff., Ex. 1, Dkt. 40 at 9.
A few months later, Brown was again confronted over his tendency to document poor conduct. On March 13, 2009, Brown sent an email acknowledging recent improvements to Beer and Wine license inspections and praising co-workers for their efforts. Johnson Aff., Ex. 1, Dkt. 40-2 at 2. Chief Wendelsdorf responded the same day with a letter regarding "Information Contained in E-mails." Id. Chief Wendelsdorf expressed concern that Brown's email documented a prior lax attitude about Beer and Wine license inspections.
PLEASE understand that all the emails received and sent form a City account is public and subject to a public information request. .The inclusion [in your email] of "because the casual approach to B&W's before that may have left the licensee smiling, but the hazards not all corrected. What we need to guard against now is that we don't backslide to where we were before."
Basically, you have admitted that you knew of the 'casual' approach but did nothing about it."
Id. In responding, Brown acknowledged that he understood that "editorializing is now no longer tolerated by the City, because it might pose a potential liability risk, or at the very least, an embarrassment." Castleton Aff., Ex. B, Dkt. 32-4 at 30; see also Brown Depo. 108:12-109:15, Ex. 6, Dkt. 39-2 at 4. Brown also expressed his appreciation for Chief Wendelsdorf's "patience [while] working with me on this." Id.
What the City viewed as Brown's problematic communication style prompted a third round of reprimands in July of 2009. Brown had prepared a memo about converting the Van Buren Elementary School into an alternative high school. Johnson Aff., Ex. 1, Dkt 40-1 at 13-20. As part of the memo, Brown listed fourteen points that, in his mind, "constitute[d] a distinct hazard to life and property." Id. at 15-16. The last point concerned the fact that the "structure is proposed to be occupied by alternative high school students." Id. at 16. Brown continued to explain the significance:
Let me expand on that last item. Please understand, I do not intend to cast any dispersions upon alternative high school students. Many of these students are true lessons in courage and perseverance. But let me be perfectly clear, this is an entirely different group of people than elementary school students. .
Please consider, as I must in evaluating the risks here, that some of these new students are already parents and some will insist in bringing babies to class. Some are socially or emotionally challenged. Some are physically or mentally challenged. Some may be using prescription medications or illegal drugs that could adversely affect their judgment. Some are smokers who have cigarette lighters or matches readily available, some are known "trouble makers" (gang bangers, vandals, irrational behavior, etc.). These are new human risk factors being introduced into the old building.
Id. at 16-17. Brown closed the memo by reiterating his commitment to "protect the lives and property of the people of Caldwell.[which] is why I have required the [Van Buren building to] be equipped with fire sprinklers if it is to be used as the new Canyon Springs Alternative HS." Johnson Aff., Ex. 1, Dkt 40-1 at 20.
Both Brown and Wendelsdorf testified that each thought it was an internal memo and would not be supplied to the public. Wendelsdorf Depo. 116:11-14, Ex. 4, Dkt. 38-7 at 6; Brown Depo. 184:3-5, Ex. 6, Dkt. 39-3 at 3. However, the memo was released and offended members of the School District. A few ...