Free Order on Motion for Partial Summary Judgment - District Court of Arizona - Arizona

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IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

John Carboun and Karen Carboun, husband and wife, Plaintiffs,

11 v. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The City of Chandler, a body politic; Bobby Joe Harris, a former police chief of the City of Chandler Police Department, and Jane Doe Harris, husband and wife; Pat M cDermott, assistant city manager of the City of Chandler, and Jane Doe Harris, husband and wife, Defendants.

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CV-03-2146-PHX-DGC

ORDER

Pending before the Court are Plaintiff's M otion for Partial Summary Judgment (Doc. #171), Defendants' M otion for Summary Judgment Re Count I (First Amendment) (D oc. #173), Defendants' M otion for Summary Judgment Re Counts IV, VI, VII, IX , X I, XII, and Punitive Damages (Doc. #174), Defendants' M ot ion for Summary Judgment Re

Quasi-Judicial Immunity for Defendant M cDermott (Doc. #175), Defendants' M otion for Summary Judgment Re Counts VIII and X (Doc. #176), P laintiff's M otion to Strike Expert Witness K en K at s aris and M otion to Strike Portions of Defendants' Statement of Facts (Doc. #182), Defendants' M otion to Strike Wilson Supplemental Report (Doc. #210), and the parties' motions to strike statements of fact (Doc. ## 183, 211).

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The briefing in this case has been extensive, including some 15 inches of briefs, statements of fact, and supporting exhibits. The Court has relied on the arguments made T he Court is not obligated to, and

in the parties' briefs and their citations to the record.

has not, scoured the statements of fact or exhibits for evidence or arguments not identified in t he briefs. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001); Keenan v. Allan, 91 F.3d 1275, 1278-79 (9th Cir. 1996); Forsberg v. Pac. N.W. Bell Tel. Co., 840 F.2d 1409, 1417-18 (9th Cir. 1988). The parties requested oral argument . The Court will not grant oral argument. The

parties' briefing are ext ensive and the Court concludes that additional argument will not aid its decisional process. See Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir. 1999). Background Plaint iff J ohn Carboun is a Chandler police officer and former president of the Chandler Law Enforcement Association ("CLEA"). On June 19, 2002, shortly after the

death of Chandler Police Officer Robert Nielsen, Plaint iff s ubmitted a letter to Chandler City M anager Donna Dreska (the "Letter"). Officer Nielsen died when his patrol vehicle, a Ford Crown Victoria, was involved in an accident and became engulfed in flames. Plaintiff's

Letter was written on CLEA letterhead. See Plaintiff's Statement of Facts ("PSOF") Ex. 1. The Letter recounted Officer Nielsen's death and suggested that Plaintiff, who had arrived at the scene s hortly after the accident, had been unable to provide aid to Officer Nielsen because Plaintiff and ot her officers had not been issued fire extinguishers. Id. The Letter expressed concerns regarding the safety of Crown Victorias, the police administration's lack of response to t he need for new ballistic vests, the administration's budget-based decision concerning s afer holsters, and the administration's general disregard for officer safety. Id. At approximately the same time he s ent the Letter, Plaintiff engaged in a discussion in the police department's briefing room concerning Nielsen's death. Those present See

describe the discussion as heated and Plaintiff's comments as highly emotional.
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Defendants' Separate Statement of Facts ("DSOF") ¶¶ 4-7.

Plaintiff suggested during the

discussion that Police Chief Bobby Joe Harris had not been forthcoming about Officer Nielsen's death. Id. ¶ 5. Other officers present during the exchange w ere up s et by

Plaintiff's comments. Id. ¶ 7. Upon receiving Plaintiff's Letter, City M anager Dreska requested that Police Chief Harris investigate Plaintiff's allegations. A s ubstantial internal investigation ensued, Upon receiving

involving several officers and numerous interviews. See DSOF ¶¶ 30-37.

the results of the investigation, Chief Harris issued a notice of termination to Plaintiff. The termination decis ion was based on Chief Harris' conclusion that Plaintiff's Letter included several false or misleading statements, including that officers were not issued fire extinguishers, that the administration had not been responsive on the is s ue of p rotective vests, and that the administration was trying to cover up facts related to an earlier officer death. See D SO F Ex. 37. Chief Harris provided the following explanation to Plaintiff in the termination notice: Your statements in the letter to the Cit y M anager impacted the operation of the Police Department and were made for the sole purpose of bringing discredit on the Police Department, the administration, and its emp loyees. You purposely used the tragic death of a fellow officer and fals e s t at ements to discredit the dep artment at a time when all employees were feeling this loss. Id. Plaintiff appealed the Chief's terminat ion decision to the City's five-member M erit Board. See PSOF ¶ 17. Three days of evidentiary hearings were held. See PSOF 19.

Plaintiff, Chief Harris, the lead investigator into Plaintiff's Letter, and ot hers testified. Id.; DSOF Ex. 38. Plaintiff and the City were represented by counsel who present ed evidence, questioned witnesses, and made op ening and closing arguments. See PSOF 19. Following the hearing, the Board recommended by a 4-to-1vote that Plaintiff not be terminated, but t hat he be suspended for 80 hours without pay. Id. explanation: Although the Board does not charge M r. Carboun with dishonesty, the Board does find that he is guilty of conduct unbecoming an officer (personnel rule 5, b-12400.d.3.h). The timing of M r. Carboun's letter, penned
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The Board provided the following

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3 days after the tragic death of Officer Nielsen, was inappropriate. T he Board understands that M r. Carboun was angry over the death of his friend. However, he either knew or should have know n t hat the timing, tone and shotgun approach of his letter would s erve t o further divide the Department rather than bring it together as was his stated mis s ion in the letter. In addition, it was clear that M r. Carboun penned the letter on behalf of himself rather than t he [CLEA]. For that, the Board finds M r. Carboun guilty of conduct unbecoming a police officer. DSOF Ex. 38. The Board s t at ed that Plaintiff's outburst in the briefing room "played little,

6 if any, role in the Board's decision-making process." Id. 7 The recommendation of the M erit Board was reviewed by Assistant City M anager 8 Pat M cDermott, a Defendant in this cas e. 9 review because the City M anager, Donna Dreska, had been t he recip ient of Plaintiff's 10 Letter. 11 12 the following explanation to Plaintiff: 13 14 15 16 17 DSOF Ex. 40. M cDermott found that Plaintiff had violated five department rules, including 18 engaging in conduct which might bring discredit to the City service, conduct unbecoming 19 an employee, and lack of respect for supervisors and department employees. Id. 20 Plaintiff filed a 12-count complaint in M aricopa County Superior Court stemming 21 from the actions of Chief Harris, the Board, and Assistant M anager M cD ermot t. Doc. #1. 22 Defendants removed the action to this Court. Id. 23 Defendants' actions cons t ituted unlawful retaliation for exercise of his First Amendment 24 right s, violation of federal and state OSHA laws, and a number of state-law wrongs, 25 26
1

M r. M cDermott was assigned to conduct the

Defendant M cDermott accepted the Board's recommendation of suspension, but

increas ed t he suspension to 160 hours without pay. See PSOF ¶ 27.1 M cDermott provided

To utilize the death of Officer Nielsen to highlight and restat e y our ongoing disagreement s with Police Administration was, at best, extremely tasteless. Your letter included hearsay statements, exaggerations, generalizations, subjective op inions , and mis s t at ement s , and combined with the circumstances of Officer Nielsen's death demonstrated very poor judgment and behavior on your part.

Plaintiff alleged in his complaint that

27 28

Defendants move to strike Paragraph 27 on the ground that it contains a misleading recitation of the facts. The Court will deny the motion. It is undisputed in t his case that Plaintiff ultimately received a 160-hour suspension without pay.
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including unlaw ful reprisal, discrimination, wrongful discharge, intentional infliction of emotional distress, false light invasion of privacy, negligent infliction of emotional distress, defamation, breach of the implied covenant of good faith and fair dealing, and intentional interference with contract. On April 26, 2004, the Court granted Defendants judgment on the pleadings with respect to Counts 2 and 3 of Plaintiffs' comp laint . D oc. #32. On November 19, 2004, the Court granted Defendants judgment on the pleadings with respect to Count 5, s ubsection (c) of Paragraph 32 of Count 6, and on any termination claims relating to Counts 9 and 11 of Plaintiffs' complaint. Doc. #131. Discussion Defendants move for summary judgment on all of P laint iff's remaining claims. Plaintiff moves for s ummary judgment on his First Amendment claim. In conjunction with these motions, both parties have filed motions to strike relating to the summary judgment briefing. The Court will address each of Plaintiff's remaining claims in turn and, where

appropriate, any related motion to strike. I. Count 1 ­ First Amendment.2 Both sides move for summary judgment on Plaintiff's Firs t Amendment claim. Plaintiff asserts that Defendants violated his First Amendment rights by terminating and then suspending his employment in retaliation for writing the Letter, and t hat t here are no questions of fact precluding the Court from entering judgment in his favor. Defendants

argue that Plaintiff's termination and suspension were not based on t he content of the

2

In his motion, Plaintiff attempts to assert a First Amendment freedom of as s ociation claim. Defendants object on the grounds that Plaint iff made no such claim in his complaint and the Court excluded t he issue of Plaintiff's April 2000 denial of promotion to sergeant. The Court agrees with Defendants. A fair reading of Plaintiff's complaint reveals no freedom of association claim and no allegations regarding the promotion events in 2000. Furt hermore, the Court ruled in January 2005 that the "2000 selection process is not part of the claims asserted by Plaintiff in this case, is remote in time, and is not similar to the retaliatory conduct that has been asserted in the case." Doc. #151.
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Letter, but instead were based on Plaintiff's offensive, disruptive, and dishonest behavior; that the Letter is not entitled to First Amendment protection because it does not address matters of "public concern"; that the balancing test establis hed by Pickering v. Board of Education, 391 U.S. 563 (1968), requires a conclusion that Plaintiff's First Amendment rights were not violated; that there is no basis for municipal liability against the City for Plaintiff's firing; and that qualified immunity s hields Defendants Harris and M cDermott from liability. The Court will address whether Defendants' actions were based on the

Letter, whether t he Letter constituted protected speech, and whether a First Amendment violation occurred under the Pickering test. A. Was Plaintiff Fired Because of the Letter?

Defendants argue that Plaintiff was not disciplined because of the content of the Let t er. They claim instead that Plaintiff's termination and suspension were based on fals e as s ert ions in the Letter, the disruptive effect of Plaintiff's actions, and the timing and tone of the Letter. Plaintiff dis agrees, asserting that the content of the Letter was a substantial motivating factor in his discipline. Plaintiff notes that the internal investigat ion was

initiated because of t he Letter and that Chief Harris' termination decision, the Board's suspension recommendation, and M r. M cDermott's final suspension decision were all based on the Letter. T hese competing positions present a factual dispute that cannot be resolved by summary judgment. Whether the timing, t one, falsity and effect of the letter motivated

Defendants' action, or whether their actions w ere bas ed on content protected by the First Amendment, must be resolved by the trier of fact. "As with proof of motive in other contexts, this element of a First Amendment retaliation suit . . . involves questions of fact that normally should be left for trial." Ulrich v. City and County of San Francisco, 308 F.3d 968, 979 (9th Cir. 2000) (citations omitted). B. Is the Letter Protected Under the First Amendment?

Defendants argue that the Letter does not sufficiently address matters of public concern to garner First Amendment protection.
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The Court dis agrees.

"If an employee's

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expres sion relates to an issue of `political, social, or other concern to the community,' as distinct from a mere personal grievance, it fairly is characterized as addressing a matter of public concern." Gilbrook v. City of Westminster, 177 F .3d 839, 865 (9th Cir. 1999) (quoting Connick v . Myers, 461 U.S. 138, 146-47 (1983)). The Supreme Court in Connick concluded that a multi-part questionnaire which asked only one question of public concern

sufficiently "touched upon" matters of public concern t o warrant at least limited First Amendment protection and require the balancing set forth in Pickering. 461 U.S. at 149.

Plaintiff's Letter concerns matters of officer safety arising from ballistic vests, pat rol cars, and holsters. Alt hough not addressed to the public at large, the Letter's concerns

for officer safety and police management clearly are matters of public concern that warrant at least partial First Amendment protection. See Cochran v. City of L os Angeles, 222 F.3d 1195, 1201 (9th Cir. 2000) (holding t hat expressions of concern about management of a police department "are relevant to t he public's evaluation of its police department" and therefore raise matters of public concern); Burges s v . Pierce County, 918 F.2d 104, 105-06 (9th Cir. 1990) (holding that a fire marshal's comments regarding fire safety regulations touched on a matter of public concern); Gillette v. Delmore, 886 F.2d 1194, 1197-98 (9t h Cir. 1989) (holding that a firefighter's statement regarding the manner in which firefighters and police had performed their duties involved a matt er of public concern). Because the Letter was not addressed to the public, did not raise political issues, and addressed is s ues that had been a matter of personal dispute between Plaintiff and Defendants for some time, it raises only a "limited First A mendment int erest," as was the case in Connick. See 461 U.S. at 154. C. Pickering Balancing.

Under the balancing test established in Pickering, the Court must determine whether Defendants' legit imat e adminis t rative interests outweigh Plaintiff's First

Amendment rights. The Court must balance "the interests of the [employee], as a citizen, in commenting on matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs t hrough its employees."
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Pickering, 391 U .S. at 568.

"In conducting this balancing, courts must give government

employers `wide discretion and control over the management of [their] personnel and internal affairs. This includes the prerogative to remove emp loyees whose conduct hinders efficient operation and to do so with dispatch.'" Brewster v. Board of Educ., 149 F.3d 971, 979 (9th Cir. 1998) (quot ing Connick, 461 U.S. at 151). Although the Pickering inquiry

requires evaluation of factual mat t ers unique to this case, the "balancing test is a question of law, not fact." Loya v. Desert Sands Unified School Dist., 721 F .2d 279, 281 (9th Cir. 1983); Nicholson v. Board of Education, 682 F.2d 858, 865 n. 8 (9th Cir. 1982). The Court has considered a variety of factors argued by t he p arties. "Because the Pickering balance necessarily involves a fact-sensitive inquiry involving the totality of the circumstances, no single factor is dispositive." Gilbrook , 177 F.3d at 868. Several factors are relevant. First, Plaintiff wrote the Letter only three days aft er O fficer Nielsen's death, when emotions within the department and City administration were running high. The Letter

clearly implied that Officer Nielsen's death was attributable to the p olicies of the police department and that leadership of the department had attempted to cover up facts concerning a previous officer death. The Letter received considerable attention within the

department, a not-surprising fact given the not oriety of Officer Nielsen's death, even being published on an employee-related website. DSOF ¶ 151. The Letter was written t o the City M anager, not t o P laint iff's line officers within the department, arguably undercutting the authority of those officers . T hes e facts lead the Court to conclude that the Letter carried

the potential to impair the "discipline, esprit de corps, and uniformit y " of the Chandler police dep artment needed "to insure adequate promotion of safety of persons and prop erty." Kannisto v. San Francisco, 541 F.2d 841, 843 (9th Cir. 1976). The Ninth Circuit has noted that a police department is "a quasi-military organization." Cochran, 222 F.3d at 1201. "Discipline and esprit de corps are vit al to its functioning." Id. The Letter ran counter to those interests. See Gilbrook, 177 F.3d at 868 (courts inquire into whether the

speech "impaired discipline and control by superiors").
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Second, the Letter caused the Cit y M anager to institute a substantial internal investigation. See PSOF ¶ 11; DSOF ¶¶ 28, 29. T he inves t igation involved several See DSOF ¶¶ 30-37. Such an

members of the department and numerous interviews.

investigation consumes resources and distracts attention from the daily business of p olice work, carrying the potential for hindering the effective operation of the department. See Brewster, 149 F.3d at 979 (employers may "remove employees whose conduct hinders efficient operation"). Third, the timing and tone of the Letter, along with its suggestion that department policies were res p ons ible for Officer Nielsen's death, carried the potential to disrupt the workplace and employee morale. Plaintiff contends that no such disruption occurred.

Defendants disagree and point to Plaintiff's disruptive outburst in t he briefing room. The evidence sugges t s that the briefing room incident did have a disruptive effect. Indeed,

Plaintiff made the following concession in his deposition: "If they want to punish me for venting my feelings and my belief in the briefing room, then you know what, I'd be willing to concede to them saying that I was out of line there." DSOF Ex. 2 at 186. P laintiff does not, however, base his First Amendment claim on comments he made in the briefing room. And although Chief Harris cited that incident as part of the basis for his termination decision, the M erit Board expressly noted that it w as given little if any consideration. The Court may consider the briefing room outburst as part of the totality

of t he circumstances relevant in the Pickering analysis, but it need not rely on this event . The Ninth Circuit has held that "public employers need not allege that an employ ee's expression actually disrupted the workplace; `reasonable predictions of disruption' are sufficient." Brews ter , 149 F.3d at 979 (quoting Waters v. Churchill, 511 U.S. 661, 673 (1994)). The Court concludes that Plaintiff's Lett er carried with it the potential of

disrupting the workplace, a potential Defendants were entitled to take into account. Fourth, Plaint iff made statements in the Letter without factual foundation. Plaintiff s tated that he was unable to aid Officer Nielsen because "there are no extinguishers is s ued t o our police vehicles." PSOF Ex. 1. The evidence in the record suggests that fire
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extinguishers w ere issued and that individual officers were responsible for ensuring that their cars were properly equipped, DSOF ¶ 39, 40, although there was also evidence that some officers at some times had difficulty procuring extinguishers , P SO F Ex. 38. M ore

importantly, the evidence shows that police officers at the scene of Officer N iels en's death attempted to control the fire w it h ext inguishers from their patrol cars, but that the extinguishers had no effect on the gas oline-fueled inferno. See DSOF ¶¶ 40, 14. Plaintiff would have witnessed these attempts if he was, as he claimed, " one of the first officers at the scene," but he made no mention of these facts in the Letter, implying instead that Officer N iels en died for want of fire extinguishers. See PSOF, Ex. 1; DSOF ¶ 40.3 Plaintiff also appears to have exaggerated or lacked foundation for the statements that " the administration informed everyone during a `mandatory' briefing that Officer N ielsen died on impact," see DSOF ¶ 44, and that "the administration fought [the ballistic] vest p rop os al every step of the way," see DSOF ¶ 57.4 Public employers are entitled to respond to

inaccurate statements by employees. Gilbrook, 177 F.3d at 868 (courts consider "whether the statement was false or made in reckless disregard of the truth"). Fifth, as noted above, Plaintiff's speech is entitled to only limited First Amendment protection. The speech did not concern matt ers of p olit ics and was not addressed to the electorate. Plaintiff directed the Letter to the City M anager. This limited speech weighs

less heavily in Plaintiff's favor than speech on p ublic issues directed to the public at large. See Brewster, 149 F.3d at 981 ("We have acknowledged that a narrow, limited focus and [a] limited audience weigh against [a] claim of protected speech" (quotation omitted)).

P laintiff moves to strike Paragraph 40 on the ground that it misstates the evidence. The Court has review ed the underlying evidence and finds that it supports Defendants' interpretation. The Court will deny the motion to strike.
4

3

Plaintiff moves to strike Paragraph 57 on t he ground that it is argumentative and unsupported by the record. The Court has reviewed the underlying evidence and finds t hat it supports Defendants' interpretation of the facts. The Court will deny the mot ion t o strike.
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Sixth, although Chief Harris initially terminated Plaintiff's employment, the City modified its discipline after a hearing before the M erit Board and review by Assistant M anager M cDermott. The resulting suspension constituted a more measured response The nature and severity of the employer's response is

by the City to Plaintiff's Letter.

certainly relevant in deciding whether the City violated Plaintiff's First Amendment rights. Plaintiff counters the foregoing considerations by arguing that several factors weigh in his favor: (1) he is not a high-ranking official s ubject to additional scrutiny, (2) the Letter did not threaten any of Plaintiff's close working relationships, (3) the Let t er did not impair Plaintiff's performance of his dut ies, and (4) Defendants have not shown that the Letter actually created any division in the Department. Plaintiff's first three arguments are true, And

but the Court does not find that they outweigh the considerations set forth above.

as already noted, Defendants need not show that the Letter created actual division within the Department; the potential for division is enough. Brewster, 149 F.3d at 979. The Pick er ing balancing analysis is not easy. It requires the Court to weigh timehonored notions of free speech, a hallmark of our democracy, against the legitimate need of public employers to control their workforce and promote efficiency, discipline, and safety among vital public employees. Instinct w ould teach that we rarely if ever should

curtail free speech, but it is equally obvious that the efficient and disciplined operation of our law enforcement agencies is critical to the safety and security of society. Courts are

given the unenviable task of weighing theses competing interests and deciding when free speech rights must yield to the needs of the public employer. On the unique fact s of this case, the Court concludes that the interests of Plaintiff in writing the Letter are outweighed by t he interests of Defendants "in promoting the efficiency of the public services [they] perform[] through [their] employees." Pickering, 391 U.S. at 568. The Letter was written at a time of high emotion over the tragic death of Officer Nielsen, deliberately used that death as a catalyst for points Plaintiff wished to make, failed to state some facts related to Officer Nielsen's death accurat ely, necessitated a substantial and time-cons uming investigation,
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and

circumvented

Plaintiff's

line

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supervisors .

The Letter was written to a limited audience, included Plaintiff's personal

feelings, and is entitled to only limit ed First Amendment protection. Defendants' ultimate response of a 160-hour suspension was more measured than Chief H arris' initial decision and was imposed under procedures that comported with basic notions of due process. Given the totality of t hese circumstances, the Court concludes that the Pickering balance favors Defendants and that Plaintiff therefore cannot assert a claim for violation of his First Amendment rights. In reaching this conclusion, the Court is mindful of its obligation to

give government employers wide dis cretion and control over management of internal affairs. Brewster, 149 F.3d at 979. The Court w ill grant Defendants summary judgment on Plaintiff's First Amendment claim and the corresponding claim for punitive damages. The Court also notes that it

would find D efendants entitled to qualified immunity on Plaintiff's First Amendment claim because, for the very reasons set forth in the balancing analysis above, it could not conclude that Defendants violat ed " clearly established" First Amendment rights.

Brewster, 149 F.3d at 979 ("Becaus e, under Pickering, the determination whether an emp loy ee's exp res s ion is cons t it ut ionally protected requires a fact-sensitive,

context-specific balancing of competing int erests, the law regarding public-employee free speech claims will rarely , if ever, be sufficiently `clearly established' to preclude qualified immunity under Harlow and its progeny" (quotation omitted)).5 II. Counts 8 and 10 ­ False Light and Defamation. Defendants move for summary judgment on Plaint iff's defamation and false light claims. Plaintiff does not respond to Defendants' motion regarding false light , instead The Court will therefore grant Defendants summary

defending only his defamation claim.

judgment on Count 8. See Celotex Cor p. v . Catrett, 477 U.S. 317, 322-23 (1986) (holding that summary judgment is appropriat e agains t a party who "fails to make a showing

5

Given the Court's First Amendment ruling, it need not address the issues of municipal liability or whether the Brady list constituted an adverse employment action.
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sufficient to establish the existence of an element essential to that party's case"); Fed. R. Civ. P. 56(e). ("If the advers e p art y does not so respond, summary judgment, if appropriate, shall be entered against the adverse party"). Plaintiff bas es his defamation claim on Defendant Harris' alleged statement to Paul Babeau, a pros pective department employee, that Plaintiff is a "liar." Defendants move for summary judgment on the grounds that (1) the statement was merely an op inion, (2) Plaintiff has not presented sufficient evidence t hat the statement was false, and (3) Plaintiff has not shown actual malice by Harris in making the statement.6 Plaintiff acknowledges that he is a public figure and t hat he must therefore prove with clear and convincing evidence that H arris acted with malice. See Plaintiff's Response to Defendants' M otion for Summary Judgment re Counts VIII & X (Defamation Claim), dat ed April 11, 2005, at 4. The clear and convincing standard of proof must be considered in ruling on Defendants' motion for summary judgment . Plaintiff must present evidence

from which a reasonable jury could find that the proof of actual malice is clear and convincing. Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986). See also Dombey v.

Phoenix Newspapers, Inc., 724 P.2d 562, 576 (Ariz. 1986) (evidence mus t p ermit a reasonable jury to find "actual malice" with "convincing clarity"). burden. This is a substantial

Plaintiff must produce "`significant probative evidence.'" Id. (quoting Anderson,

477 U.S. at 249, 256). Plaintiff makes two arguments. He asserts that the M erit Board's finding that

Plaintiff made no knowingly false statements in the Let t er put Harris on notice that his description of P laintiff as a liar was either untrue or reckless. Plaintiff further asserts that Harris' longstanding ill-will towards Plaintiff supports a finding that he acted with malice.

6

Plaintiff has abandoned his original allegations based on statements made t o J ennifer Rome, Larry Roe, and Daryl Palmer and on the pre-dismissal, dismissal, and reinstat ement letters writ t en by D efendants Harris and M cDermott. Likewise, Plaintiff does not pursue his claim regarding Harris' statement that Plaintiff is a "bad officer." T he Court will grant summary judgment on these statements. See Celotex, 477 U.S. at 322-23.
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This evidence would be sufficient

t o overcome summary judgment if the relevant

substantive standard was a preponderance of the evidence; a jury reasonably could conclude from this evidence that it is more probable than not that Harris acted with actual malice. But the Court cannot conclude that a reasonable jury could be clearly convinced

from this evidence that Harris acted with malice. The M erit Board issued a split decision, voting 4-to-1. Pat M cDermott was aware of the M erit Board ruling and nonet heless

concluded in his suspension decision that Plaintiff's Letter included " exaggerations" and "misstatements." See PSO F ¶ 40. As noted above, there is evidence that calls into

question the veracity of some assertions made by Plaintiff in the Letter, and Chief Harris could have disagreed with the M erit Board's conclusion. M oreover, the M erit Board

hearing and decision were limited to the Letter and did not address H arris' finding in the termination notice that Plaintiff had been "untruthful" during a 1995 internal investigation. See DSOF Ex. 37, at 3.7 Plaintiff cites L ewis v. Oliver, 873 P.2d 668 (Ariz. Ct. App. 1993) and Dombey to support his argument s . In Lewis, however, an investigation completely exonerated the The court

plaintiff and found the accusations against him "meritless." 873 P.2d at 673.

concluded that the defendant's cont inued accusations following the plaintiff's vindication evinced malice because the defendants knew that the accusations were fals e. See id. In

Dombey, the court recounted an extensive record which demonstrated that the defendant new s p ap er ignored facts clearly and repeatedly presented in letters for retraction. See 724 P.2d at 575. Plaintiff's evidence does not contain such clear and convincing evidence that Harris knew his statement was false or uttered it in reckless disregard for the truth. Because Plaintiff has not met his summary judgment burden with respect to the
7

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Plaintiff's Statement of Facts in Response to Defendants' M otion for Summary Judgment ("PRSOF"), which is 94 pages and 299 paragraphs in length, is not cited by P laintiff as evidence of Harris' malice, but it does discuss the 1995 incident. T he P RSOF alleges that Assistant City Attorney M cNeff, who drafted the terminat ion not ice, had no personal knowledge of the 1995 incident. See PRSOF ¶ 153. The cited paragrap h says nothing, however, about a lack of knowledge on the part of Harris.
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actual malice component of his defamation claim, the Court will grant summary judgment. III. Count 5 ­ Whistleblowing. Plaintiff claims that Defendants violated A.R.S. § 38-532, Arizona's whistleblowing statute, by disciplining him for the Letter. The statute states that "[i]t is a p rohibit ed

[action] . . . to take reprisal against an employee for a disclosure of information of a matter of public concern by the employee to a public body which the employee reas onably believes evidences: 1. A violation of any law. 2. M ismanagement, a gross w as t e of

monies or an abuse of authority." A.R.S. § 38-532 (A). D efendants argue that the Letter cannot be considered whistleblowing because issues raised for personal vindictiveness are not protected and Plaintiff raised the issues only to "make the Cit y look bad." conclusion. Def. M ot. at 5. Issues of fact preclude such a

The Court must view the evidence in Plaintiff's favor at this summary

judgment stage, and Plaintiff states several times in the Letter that his goal is to improve police officer s afety. See PSOF Ex. 18. The Court cannot conclude as a matter of

undisputed fact that Plaintiff wrote the letter solely for personal vindictiveness.8 Defendants contend that Plaintiff did not reasonably believe the accusations he made in the Letter, citing to evidence that the statements were exaggerated, poorly supported, or based on hearsay or his own subjective opinion. Plaintiff, however, has

produced evidence t hat he had substantial foundation for some of the issues he raised, including the is s ue of bladders in the Crown Victoria. See PSOF ¶ 49.9 The Court cannot

8

In their reply brief, Defendants raise the additional issue that Plaintiff does not have evidence that Defendants acted against him with the requisit e state of mind (malice, for this claim). Defendants make this argument with respect to Plaintiff's wrongful discharge, good faith and fair dealing, and punitive damages claims as well. The Court will not address this argument with respect to any of t he claims because it was not raised in the original motion and Plaintiff has not had an opportunity to respond.

Defendants move to strike Paragraph 49 on the grounds that it is immaterial and inflammatory . T he Court will deny the motion. The paragraph tends to show that Plaintiff had a foundation for concerns and possible cures regarding the Crown Victoria. The
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conclude as a matter of law that Plaintiff did not have a reasonable belief regarding at least some of the issues he was raising. beliefs at trial.10 Defendant s argue that Plaintiff's Letter deserves no protection because it raised no novel issues, citing evidence that the Chandler administration had already discussed the vest, holster, and Crown Victoria issues. The Court finds no basis in Arizona law for The jury will assess the reasonableness of Plaintiff's

concluding that the issues must be novel in order for the disclos ure to receive protection under t he Arizona statute. The cases cited by Defendants relate to federal whistleblow ing statutes that have their own language and supporting case law. Nothing in the language

of A.R.S. § 38-532(A) suggests that the issues must be novel, and Defendants cite no Arizona law supporting that contention. Finally, Defendants argue t hat P laintiff has no evidence of causation ­ evidence that Defendants terminated and suspended him because of his disclosures. Arizona cases have The

not established the level of evidence necessary to prove causation under the statute.

Court finds the inquiry into causation essentially an inquiry into Defendant s ' motivations for disciplining Plaint iff. For the reasons stated in Section I.A above, factual issues Defendant s '

preclude summary judgment on the question of Defendants' motivations. motion for summary judgment on the whistleblowing claim will be denied.

Court's November 15, 2004 decision does not preclude Plaintiff from using evidence regarding the Crown Victoria where it is relevant to claims at issue in this case. T he Court's conclusion in the Pickering analysis that some statements in the Letter lacked factual foundation is not the same as concluding as a matter of law that Plaint iff believed his statements to be untruthful for purposes of the state-law whistleblow ing claim. The Pickering analysis must be p erformed by the Court, not the jury, and public employers have an interest in responding to inaccuracies even if they are not fully intentional. The Court therefore was not required to decide the question of Plaintiff's intent in the Pick er ing analysis. M oreover, public employees must also recognize that disruption can result from less than fully accurate statements, critical of management, made in an emotional environment. Fact ual is sues in the whistleblowing claim, by contrast, must be resolved by the jury.
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IV.

Count 6 ­ Wrongful Discharge. Plaintiff claims that the City of Chandler violated the Arizona Employment Protection

Act ("EPA"), A.R.S. § 23-1501(3)(b), by terminating him in violation of the whistleblowing stat ut e. D efendants move for summary judgment on the grounds Plaintiff was suspended,

not terminated by the City, and that Plaintiff was not a whistleblower and has no evidence that he was terminated for whistleblowing. Although the Court understands that P laintiff eventually was reinstated and

received 160 hours of suspension, the record suggests beyond dispute that Plaintiff was terminated, even if only briefly . D efendants' Statement of Facts expressly states that

"Plaintiff Was Terminated." See DSO F § F, at 25. Chief Harris' notice of October 10, 2002, states that Plaintiff's actions "warrant . . . dismissal from . . . service with the City of Chandler." DSOF Ex. 37. D efendants cite no evidence in support of their argument that

they did not terminate Plaintiff. See Defendant's M ot ion for Summary Judgment, dated February 25, 2005, at 8; Defendant's Reply, dated M ay 23, 2005, at 9. Nor do they contend that the termination never took effect. Thus, even though it is undisputed t hat Plaintiff

eventually was reinstated and suspended, it appears equally clear that the Plaintiff was in fact terminated. Defendants provide no authority for the p roposition that Plaintiff's

termination does not trigger the EPA because it was later replaced by a s us p ens ion, and the Court has found none. The Court likewise disagrees with Defendants' claim that Plaintiff cannot sustain his whistleblower claim. As discussed in greater detail above, Plaintiff's Letter disclosed

public issues and a jury could reasonably infer from the circumstances that Defendants fired Plaintiff for the disclosures made in the Letter. Defendants' cited cas es , Spr att v.

Northern Auto. Corp., 958 F. Supp. 456, 464 (D. Ariz. 1996), and Chaboya v. American Nat'l Red Cross, 72 F. Supp. 2d 1081, 1092-93 (D. Ariz. 1999), do not p ersuade the Court otherwise because, unlike the plaintiffs in those cases, Plaintiff has p roduced sufficient evidence linking the contents of his Letter to his termination. Defendants' motion for summary judgment on this claim.
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V.

Count 11 ­ Good Faith and Fair Dealing. Plaintiff claims that Defendants breached t he implied covenant of good faith and fair

dealing implicit in the employment relationship.

Defendants move for summary judgment

on the grounds that Plaint iff was not deprived of any benefit of his employment relationship and that Defendants' good faith investigations prior to taking action against Plaintiff absolve them of any liability. unpersuasive. First, Plaintiff was susp ended for 160 hours without pay, which deprived Plaintiff of a contractual benefit he otherwise would have received ­ compensation. Second, the language of Almada v. Allstate Ins. Co., 153 F. Supp. 2d 1108, 1114 (D. Ariz. 2000), cited by Defendants for their good faith invest igat ion argument, does not fully support their position. Almada recognizes a good fait h defense where an employer The Court finds both of Defendants' arguments

reaches a conclusion "supported by substantial evidence gat hered through an adequate investigation that includes notice of the claimed mis conduct and a chance for the employee to respond." Id. (citation omitted). The evidence in the record in this case s how s that

Defendant s undertook a substantial investigation, gathered evidence, and allowed Plaintiff an opportunity to respond. Almada also states, however, t hat t he good faith exception ap plies where the employer reaches its decision "for reasons that are not arbit rary or pretextual." Id. Plaintiff has created sufficient issues of fact in this case as to whether

Defendants' stated reas ons for suspending him were merely pretext for retaliation against him for whistleblowing. Accordingly, the Court cannot conclude as a matter of law that

Defendants' reasons w ere not pretextual and will deny Defendants' motion for summary judgment on this claim.11

The Court's First Amendment balancing analysis in Section I.C of this Order, including its consideration of the investigation, is part of the legal analysis required under Pickering and its progeny. Plaintiff's argument concerning the alleged pretext of the invest igation is, in this state-law claim, a factual issue that must be resolved by the jury where there are facts in dispute.
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VI.

Count 12 ­ Tortious Interference with Contract. Plaintiff claims that Defendants M cDermott and Harris t ortiously interfered with

Plaintiff's contract with the City. Defendants move for summary judgment on the ground that there is no evidence that Defendants acted with an improper motive in firing P laintiff. The Court disagrees. As discussed earlier, Plaintiff has raised a question of fact as to

whether Defendants improperly acted against him for whistleblowing. The Court will deny Defendants summary judgment. VII. Count 7 ­ Intentional Infliction of Emotional Distress. Plaintiff claims that Defendants' actions in disciplining him and dis seminating unfavorable opinions about him constituted intentional infliction of emotional distress (" IIED "). Defendants move for summary judgment on the ground that Defendants' alleged conduct was not sufficiently outrageous to support an IIED claim. "It is for the court to determine, in the first instance, whether the defendant 's conduct may reasonably be regarded as so extreme and outrageous as to p ermit recovery, or whether it is necessarily so." Lucchesi v. Stimmell, 716 P.2d 1013, 1016 (A riz . 1986). Plaintiff "may recover for [IIED ] only where the defendant's acts are `so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.'" Patton v. First Fed. Sav. & Loan Ass'n of Phoenix, 578 P.2d 152, 155 (Ariz. 1978) (quoting Cluff v . Farmers Ins. Exch., 460 P .2d 666, 668 (Ariz. 1969)); see also Cummins v. Mold-In Graphic, 26 P.3d 518, 528 (Ariz. Ct. App. 2001); Res t atement (Second) of Torts § 46 cmt. d (1965). The Court finds that Plaintiff has not established sufficiently outrageous conduct by Defendants. Defendants' alleged conduct in this case did not exceed the bounds of

decency in a civiliz ed society. See Nelson v. Phoenix Resort Corp., 888 P.2d 1375, 1386-87 (Ariz. Ct. App. 1994) (finding insufficient outrageousness where the plaintiff was called int o his office at 2 AM , escorted by armed guards to the lobby, and then fired in front camera crew s ). A ccordingly, the Court will grant Defendants summary judgment on

Plaintiff's IIED claim.
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VIII.

Count 9 ­ Negligent Infliction of Emotional Distress. Plaintiff claims that Defendants' actions during the disciplinary process negligently

caused Plaintiff to suffer bodily harm and emotional distress.

Defendant s move for

summary judgment on the grounds that Plaintiff's emotional and physical symptoms are insufficient to support the claim, and that Arizona courts have not yet recognized negligent infliction of emotional distress ("NIED") in an employment context. T he Court finds Plaintiff's alleged symptoms sufficient for his NIED claim to s urvive summary judgment . Monaco v. Healthpartners of S. Arizona, 995 P.2d 735 (Ariz. Ct. App. 1999), cited by Plaintiff, makes clear that "long-term physical illness or mental disturbance" satisfy the NIED bodily harm requirement . Id. at 738-39. In Monaco, the plaintiff suffered p rolonged sleeplessness, nightmares, and anxiety, which the court found were sufficient for his NIED claim. Id. at 739. Plaintiff's expert, Dr. Wilson, opined that Plaintiff suffers comparable long-term symptoms. See PSOF ¶ 295-99.12 The Court likew is e rejects Defendants' argument that Plaintiff cannot sustain his claim becaus e no Arizona court has recognized an NIED claim in the employment context. Under Arizona law, a plaintiff has a cognizable NIED claim against another if: (a) [the tortfeasor] should have realized that his conduct involved an unreasonable risk of causing the dis t ress, otherwise than by knowledge of the harm or peril of a third person, and (b) from facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm. Restatement (Second) of Torts, §§ 313 (adopted by Ball v. Prentice, 781 P .2d 628, 630 (Ariz. Ct. App. 1989)). The Restatement p ut s no limitations on the availability of the tort. If an employer's negligent conduct during a disciplinary process causes an unreasonable Defendants move to strike Paragraphs 295 to 299 on the grounds that they are irrelevant, lack foundation, or are based on hearsay. The Court w ill deny t he motion. The paragraphs are clearly relevant to whether Plaintiff has suffered bodily harm. Dr. Wilson made his observations based on professional interviews with Plaintiff and provides a direct op inion connecting Defendants' alleged behavior with Plaintiff's symptoms. Dr. Wilson's opinion is not hearsay.
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risk of bodily harm to another, the employer appears to be liable under the Restatement. Defendants offer no contrary citation to Ariz ona cas es . judgment on this claim. IX. Quasi-judicial Immunity for McDermott. Defendant M cDermott moves for summary judgment on all of P laintiff's claims, asserting the defense of absolute quasi-judicial immunity. M cDermott asserts the defense The Court will deny summary

based on Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 923 (9th Cir. 2004), which reaffirmed the availability of the defense in § 1983 actions. The Court will deny M cD ermott's motion. By granting summary judgment on

Plaintiff's First Amendment claim, the Court has eliminated any § 1983 claim to which the defense described in Olsen could apply. The remaining claims are based on A riz ona s t at e law. M cDermott acknow ledges in his reply brief that "Arizona courts have abandoned the doctrine of quasi-judicial immunity for state law claims brought against public officials." Reply Brief, dated M ay 23, 2005, at 1. M cDermott argues in his reply for qualified immunity based on communicative acts, and that all state-law claims agains t him fail because Plaintiff has abandoned his defamation claim against M cDermott. The Court will not consider these arguments because they were not raised in the original motion. X. Defendants' Motion to S trike Dr. Wilson's S upplemental Report. Defendants move to strike Plaintiff's supplemental exp ert report from Dr. Wilson, disclosed on January 6, 2005, arguing that the report came well after the Court 's November 30, 2004 deadline for expert discovery. The Court w ill grant the motion. The Court's scheduling order clearly established a deadline for expert discovery . P laintiff

designated D r. Wilson as a Rule 26(a)(2)(B) witness in his Sixth Supplemental Disclosure Statement on August 26, 2004, and Defendants deposed Dr. Wilson before t he deadline, on September 16, 2004. Dr. Wilson's supplemental report is late. Plaintiff makes t w o arguments. First, Plaintiff argues that the issue of the

supplemental report is really a dis covery dispute that Defendants should have addressed in a conference call with the Court as specified in the Case M anagement Order. Although
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Defendants could have raised the issue in a conference call, non-compliance with the Court's scheduling orders may also be raised in dispositive motion briefing. Second, Plaintiff argues that because Dr. Wilson, as Plaintiff's treat ing physician, was not technically subject to the Rule 26(a)(2) expert disclosure rules, Dr. Wils on s hould not be subject t o the Court's deadline for expert disclosure. The Court disagrees. This is a not a situation where Defendant s are s eeking to characterize Dr. Wilson as a Rule 26(a)(2) expert to take advantage of Plaintiff. Plaintiff himself designated Dr. Wilson as an expert

in this case and now s eeks to re-characterize Dr. Wilson to avoid a strict deadline. M oreover, Rule 701 of the Federal Rules of Evidence states that opinion testimony must be presented under Rule 702 if it is based on specialized knowledge within the scope of Rule 702, and Rule 26(a)(2)(A) in turn requires the disclosure of expert reports for all Rule 702 witnesses. The motion to strike will be granted. XI. Plaintiff's Motion to S trike Expert Witness Ken Katsaris. Defendants seek to use the testimony of Ken Katsaris, a former law enforcement officer, as exp ert t estimony regarding the appropriateness of Defendants' response to Plaintiff's Letter. Plaintiff moves to strike M r. Katsaris as an exp ert or, in the alternative, strike portions M r. Katsaris' affidavit containing inadmissible statements. Because the

Court has not used any portion of M r. Katsaris' testimony in resolving the pending summary judgment motions, the Court will deny the motion to strike as moot. Plaint iff may raise the issue again in a motion in limine before trial. XII. The Court Will Remand the Remaining S tate-law Claims. By dismissing Plaintiff's First Amendment claim, and by the previous dismissal of the federal OSHA claim, the basis for this Court's federal question jurisdiction has been eliminated. The Court now must decide whether to continue to exercise supp lement al The relevant statute, 28 U.S.C.

jurisdiction over Plaintiff's remaining stat e-law claims.

§ 1367(c), provides that "[t]he district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dis mis sed all claims over which it has original jurisdiction."
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"While discretion to decline to exercise supplemental jurisdiction over state law claims is triggered by the pres ence of one of the conditions in § 1367(c), it is informed by the Gibbs values `of economy, convenience, fairness, and comit y .'" Acri v. Varian Assocs., 114 F.3d 999, 1000 (9th Cir. 1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U .S. 343, 353 (1988)). " T he Supreme Court has stated, and we have often repeated, that `in the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining s t ate-law claims.'" Id. (quoting Carnegie-Mellon, 484 U.S. at 350 n. 7). The Court concludes that the Gibbs factors favor remand of this case to state court. Considerations of comity are particularly relevant. claims , s ome of them novel. Plaintiff asserts a host of state-law

Arizona courts have a greater interest in resolving such

claims, their inherent expertise in state-law matters will ensure a proper resolution of this case, and remand likely will afford develop Ariz ona appellate courts an opportunity to further

Arizona law regarding whistleblowers, wrongful termination, and emotional

distress torts. Economy will be served as well. Discovery has been completed, dispositive motions resolved, and the case is now ready for trial. Remand will benefit the federal system by

allowing this Court t o devote its scarce resources to resolving federal issues and developing federal law. Fairness will be ensured by t rial in a court more familiar with statelaw issues and appellate review in courts with the same expertise. Although some minor

inconvenience may be incurred in the transfer to state court, that inconvenience is outweighed by these other considerations. Therefore, pursuant to 28 U.S.C. §§ 1367(c)

and 1447(c), this case will be remanded to state court. IT IS ORDERED: 1. 2. Plaintiffs' M otion for Partial Summary Judgment (Doc. #171) is denied. Defendants' M otion for Summary Judgment Re Count I (First Amendment)

(Doc. #173) is granted. 3. Defendants' M otion for Summary Judgment Re Counts IV, VI, VII, IX, XI, XII,
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and Punitive Damages (Doc. #174) is granted in part and denied in part. 4. Defendants' M otion for Summary Judgment Re Quasi-Judicial Immunity for

Defendant M cDermott (Doc. #175) is denied. 5. Defendants' M otion for Summary Judgment Re Counts VIII and X (D oc.

#176) is granted. 6. P laint iff's M otion to Strike Expert Witness Ken Katsaris and M otion to Strike

Portions of Defendants' Statement of Facts (Doc. #182) is denied as moot. 7. Plaintiff's M otion to Strike Portions of Defendant s' Statement of Facts (Doc.

#183) is denied. 8. granted. 9. 10. Defendants' M otion to Strike (Doc. #211) is denied. This case is remanded to Arizona s t ate court for further proceedings. The Defendants' M otion to Strike Wilson Supplemental Report (Doc. #210) is

Clerk shall transfer the file to M aricopa County Superior Court and terminate this action. DATED this 27th day of September, 2005.

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