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Walker v. City of Pocatello

United States District Court, D. Idaho

January 31, 2018

JOHN WALKER, Plaintiff,
v.
CITY OF POCATELLO, a political subdivision of the State of Idaho; SCOTT MARCHAND, in his individual and official capacity; BRIAN BLAD, in his individual and official capacity, and ROGER SCHEI, in his individual and official capacity, Defendants.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill Chief U.S. District Court Judge.

         INTRODUCTION

         The Court has before it Defendants' Motion for Summary Judgment (Dkt. 46). The Court heard oral argument on the motion on November 20, 2017, and now issues the following decision.

         BACKGROUND

         Plaintiff John Walker has worked for the Pocatello Police Department (“PPD”) for approximately 21 years. Several years ago, PPD asked Walker to investigate Defendant Scott Marchand and other members of the current administration of the PPD for accessing adult content on their work computers. Marchand was later promoted to Chief of Police by Mayor Brian Blad. According to Walker, Blad promised Walker he would be promoted to Captain if he tested in the top three for the position. However, Walker was ineligible for the position when it first came open in 2013 because of an unacceptable performance rating he received from Marchand. Walker claims he received the unacceptable performance rating in retaliation for disclosing concerns about Marchand's administration.

         In early 2014, Walker applied for the Director of Campus Security position at Idaho State University (“ISU”). Walker claims that despite being on the list of finalists, he was abruptly removed after Marchand, Captain Roger Schei, or Blad made false statements to ISU that he was leaking information to the newspaper about a conflict between PPD and ISU, and that Walker was a “rogue” employee. Marchand later ordered secret video surveillance of Walker while he was on FMLA leave. The PPD then drafted a memo for Walker's personnel file outlining all the work he did not accomplish while on FMLA leave. Walker also failed to receive a promotion just over a month after he returned to work, and again six months later, despite being the top candidate.

         Walker ultimately filed a Second Amended Complaint, alleging a § 1983 claim for violation of due process (Count I), a § 1983 claim for violation of free speech (Count II), an intentional interference with prospective economic advantage claim (Count III), a defamation claim (Count IV), an intentional infliction of emotional distress claim (Count V), a negligent infliction of emotional distress claim (Count VI), an FMLA interference claim (Count VII), an FMLA retaliation claim (Count VIII), a § 1983 claim for Fourth Amendment violation of right to privacy claim (Count IX), and a Rehabilitation Act claim (Count X). Earlier, the Court granted Defendants' motion to dismiss Counts III-VI as to defendants Marchand and Schei. Defendants now ask for summary judgment on all remaining claims.

         LEGAL STANDARD

         Summary judgment is appropriate where a party can show that, as to any claim or defense, “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). One of the principal purposes of the summary judgment “is to isolate and dispose of factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural shortcut, ” but is instead the “principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). There must be a genuine dispute as to any material fact - a fact “that may affect the outcome of the case.” Id. at 248.

         The evidence must be viewed in the light most favorable to the non-moving party, and the Court must not make credibility findings. Id. at 255. Direct testimony of the non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

         The moving party bears the initial burden of demonstrating the absence of a genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001)(en banc). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir.2000).

         This shifts the burden to the non-moving party to produce evidence sufficient to support a jury verdict in her favor. Deveraux, 263 F.3d at 1076. The non-moving party must go beyond the pleadings and show “by her [ ] affidavits, or by the depositions, answers to interrogatories, or admissions on file” that a genuine dispute of material fact exists. Celotex, 477 U.S. at 324.

         ANALYSIS

         1. Statute of Limitations

         Defendants ask the Court to dismiss Walker's free speech claim, and to disregard portions of the record based on the statute of limitations. For § 1983 claims, federal courts apply the forum state's personal injury statute of limitations and federal law for determining accrual. Knox v. Davis, 260 F.3d 1009, 1012-13 (9th Cir.2001). Idaho's two-year statute of limitations applies here. See Idaho Code Ann. § 5-219(4) (two-year statute of limitations for personal injury actions).

         Walker filed his Complaint on October 21, 2015. Defendants ask the Court to dismiss Count II because the alleged speech occurred on July 13, 2013, more than two years before the filing of the Complaint. Defendants also ask the Court not to consider any facts which occurred prior to October 21, 2013 because each fact is a discrete act which allegedly violated Walker's constitutional rights.

         But a § 1983 claim accrues when the plaintiff knows or has reason to know of the injury that forms the basis of the action. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). There is no evidence that Walker knew or had reason to know of his alleged injury on the day his speech occurred. Instead, Walker received a due process hearing and potential termination notice on October 9, 2013. Dkt. 46-10. The notice stated that Walker's due process hearing was scheduled for October 22, 2013, and that disciplinary action up to and including termination was “being considered.” Id. On October 29, 2013, Walker received the results of the due process hearing, which was a written reprimand. Dk.t 46-11. Under these circumstances, the earliest Walker knew or had reason to know of the injury forming the basis of his action was when he received the written reprimand on October 29, 2013. And even if one could argue he received some sort of notice at the hearing, that occurred on October 22, 2013. All of these actions occurred within the two-year statute of limitations before the Complaint was filed on October 21, 2015. Accordingly, the Court will not bar the free speech claim pursuant to the statute of limitations. For the same reasons, the Court will deny Defendants' request that the Court not consider actions taken before October 21, 2013 as they apply to the other § 1983 claims.

         2. Due Process Claim (Count I)

         The crux of Walker's due process claim is that Marchand was not an impartial decisionmaker. However, before addressing that issue in detail, the Court must address whether Walker had a property interest which could give rise to a due process claim.

         A. Property Interest

         A threshold requirement to Walker's due process claim is his showing of a property interest protected by the Constitution. Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir.1994). “Although one's actual job as a tenured civil servant is property, see, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538- 39[] (1985), the prospect of a promotion is not in the same category.” Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998). “To have a property interest, a person clearly must have more than an abstract need or desire.” Id. (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)) (Internal quotes omitted). “A mere unilateral expectation of a benefit or privilege is insufficient; the plaintiff must have a legitimate claim of entitlement to it.” Id. (Internal quotes omitted).

         However, in Nunez, the Ninth Circuit explained that although a police officer's mere anticipation or expectation of promotion is not enough to create a property interest in the promotion, such expectation could rise to the level of a property interest if the expectation of promotion is firm and definite. Id. Specifically, the Ninth Circuit suggested that a binding assurance of a forthcoming promotion can create a property interest in the promotion. Id. at 873. The “commitment need not be formally expressed in a statute or a written contract; it can be implied from words or conduct.” Id. at 873, n.7, (citing Perry v. Sindermann, 408 U.S. 593, 601-02 (1972)). And there “must be rules or mutually clear understandings securing the commitment.” Id.

         Here, there is a genuine issue of disputed fact as to whether Walker had a binding assurance of a forthcoming promotion. There is evidence that (1) Mayor Blad promised Walker the promotion if he tested high enough to qualify for the promotion, and (2) this condition was met because Walker's test scores qualified him for promotion. See Walker Depo. 1, p. 98-103, Dkt. 52-3; Walker Decl., ¶ 13, Exs. G & H, Dkts. 52-14, 20 & 21). Thus, construing the evidence in a light most favorable to Walker, there is a genuine issue of material fact as to whether Walker had a property interest in the promotion.

         B. Impartial Decisionmaker

         Walker's due process claim focuses on his allegation that his right to an impartial decisionmaker at his disciplinary hearing was violated. As an initial matter, the Court notes that there is a dispute whether Walker sufficiently pled the claim as an “impartial decisionmaker” claim. There is no question that Walker's Second Amended Complaint does not specifically allege that he was not provided with an impartial decisionmaker - the Second Amended Complaint does not even mention the words “impartial decisionmaker.” But a complaint need not use specific words. A civil complaint must simply provide “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), sufficient to “give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957).

         Moreover, the right to an impartial decisionmaker is a fundamental guarantee of due process that is “jealously guarded.” Clements v. Airport Authority of Washoe County, 69 F.3d 321, 333 (1995). To be constitutionally sound, the government must guarantee a complainant a meaningful opportunity to respond to the evidence and to make an argument against a proposed deprivation. Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773, 780 (9th Cir.1982). Under these circumstances, the Court finds that Defendants were on notice that Walker would assert an impartial decisionmaker argument. This is especially true given the discovery in this case, which included assertions that Marchand had a bias against Walker.

         Turning to the merits of the impartial decisionmaker claim, “[i]t is well-settled that the Due Process Clause requires . . . ‘a fair trial in a fair tribunal.'” Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). Typically, an employee subject to termination is afforded a pre-termination hearing and a post-termination hearing. There is no specific right to an impartial decisionmaker at the more informal pre-termination hearing so long as the complainant receives his full due process rights at the more formal post-termination hearing. Walker v. City of Berkeley, 951 F.2d 182, 184 (9th Cir. 1991). But as this Court has indicated, “where a meaningful review before an impartial decisionmaker is not necessarily afforded at the post- termination stage, the burden is on the government to conduct the pre-termination hearing in a manner that affords the grievant all the process that he is due.” Sadid v. Vailas, 936 F.Supp.2d 1207, 1229 (D.Idaho 2013). As noted above, “[t]o be constitutionally sound, the government must guarantee a complainant a meaningful opportunity to respond to the evidence and to make an argument against a proposed deprivation.” Id. (citing Vanelli v. Reynolds School Dist. No. 7, 667 F.2d 773, 780 (9th Cir.1982) (“An individual must have ...


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