Janell Howard v. City of Coos Bay
871 F.3d 1032
| 9th Cir. | 2017Background
- Janell Howard was Coos Bay Finance Director (1998–2008), fired for cause after a 2008 investigation; she alleged the real reason was retaliation for reporting alleged audit overbilling and filed Howard I (2009) claiming First Amendment and state whistleblower violations.
- While Howard I was pending, Howard applied (June 2011) to be rehired as Coos Bay Finance Director; on July 6, 2011 City Manager Craddock sent a letter refusing to consider her because she had been previously terminated for cause.
- The City ran two hiring rounds in 2011, ultimately promoting Susanne Baker effective November 1, 2011 (paperwork completed early November); Baker had been Acting Finance Director and initially declined permanent appointment.
- Evidence about the July 2011 rejection letter was disclosed and the letter was admitted for damages in Howard I; Howard prevailed in that trial and recovered economic and non-economic damages.
- Howard filed Howard II (2012) asserting new First Amendment retaliation and Oregon whistleblower claims based on the 2011 refusal to rehire; the district court held the new suit precluded on claim and issue preclusion grounds and granted summary judgment. The Ninth Circuit AFFIRMED in part and reversed in part.
Issues
| Issue | Plaintiff's Argument (Howard) | Defendant's Argument (City/Craddock) | Held |
|---|---|---|---|
| Claim preclusion: Do Howard II claims arise from same transactional nucleus as Howard I? | The 2011 refusal-to-hire occurred after Howard I complaints; could not have been pleaded earlier. | The matters are related and could have been litigated in Howard I. | Howard II not barred by claim preclusion: events post-dating the operative complaint are not precluded. |
| Issue preclusion (damages): Are Howard’s damage claims precluded by Howard I verdict? | Damages in new suit arise from distinct 2011 conduct and may include new non-economic/punitive relief. | The prior verdict already resolved damages for losses tied to employment with Coos Bay; preventing double recovery. | Economic damages duplicative of losses already recovered are precluded; new punitive damages and potentially new non-economic damages are not precluded. |
| First Amendment retaliation (merits): Did City retaliate by refusing to rehire because of Howard I? | Temporal proximity and contextual evidence support an inference that Howard I litigation motivated the 2011 refusal. | City would have rejected Howard because of her prior for-cause termination; Baker’s hiring was legitimate and unrelated to litigation. | Summary judgment for City affirmed: City met Mt. Healthy burden—would have rejected Howard based on prior termination and legitimately hired Baker. |
| Oregon whistleblower statute (Or. Rev. Stat. § 659A.230): Does it cover retaliation against former employees or applicants? | Statute should be read to protect former employees/applicants analogously to federal law (Title VII analogies). | "Employee" means someone in an existing employment relationship; statute’s text and context restrict coverage to current employees. | Held for City: § 659A.230 applies to current employees; Howard (a former employee/applicant) cannot recover under that provision. |
Key Cases Cited
- Szajer v. City of Los Angeles, 632 F.3d 607 (9th Cir.) (summary judgment standard and review)
- United States v. Liquidators of European Fed. Credit Bank, 630 F.3d 1139 (9th Cir.) (transactional nucleus/res judicata analysis)
- Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064 (9th Cir.) (res judicata elements)
- Harris v. County of Orange, 682 F.3d 1126 (9th Cir.) (factors for identity of claims)
- Morgan v. Covington Twp., 648 F.3d 172 (3d Cir.) (bright-line rule that res judicata does not bar claims accruing after filing complaint)
- Coszalter v. City of Salem, 320 F.3d 968 (9th Cir.) (timing/proximity as evidence of retaliation)
- Thomas v. City of Beaverton, 379 F.3d 802 (9th Cir.) (elements of First Amendment retaliation claim)
- Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741 (9th Cir.) (circumstantial evidence categories supporting retaliatory motive)
- Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (U.S.) (mixed-motive/Mt. Healthy burden-shifting)