Marc Kardell v. Lane County
692 F. App'x 810
| 9th Cir. | 2017Background
- Marc Kardell, a Lane County employee, was terminated; he sued asserting First Amendment retaliation, violation of Oregon whistleblower law, and denial of procedural due process.
- Kardell alleges he complained to Human Resources that his superior was "spending money to conduct outside investigations of meritless allegations," and that he emailed the Board about a coworker’s retirement.
- District court granted summary judgment to Lane County and individual defendants on all claims.
- On appeal, the Ninth Circuit reviewed whether Kardell’s HR statements addressed matters of public concern and whether his email to the Board did so.
- The panel affirmed rejection of the procedural due process claim because Kardell received notice of layoff and did not request a pretermination hearing.
- The panel vacated summary judgment on First Amendment and whistleblower claims tied to the HR statements and remanded for further proceedings; it left the Board-email ruling intact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statements to HR addressed a matter of public concern for First Amendment retaliation | Kardell: complained about misuse of County funds and outside investigations — matter of public concern | County: statements were internal personnel matters not of public concern | Reversed district court; viewed in plaintiff’s favor, HR statements can be a public concern; summary judgment vacated and remanded |
| Whether email to Board about coworker’s retirement is a matter of public concern | Kardell: email was protected speech | County: email was personal workplace grievance | Affirmed district court; email did not address public concern (Connick framework) |
| Whether whistleblower claim survives summary judgment | Kardell: termination in retaliation for protected disclosures to HR | County: same defenses as to retaliation | Vacated summary judgment as to whistleblower claim based on HR statements (tied to First Amendment ruling); remanded |
| Whether procedural due process required a pretermination hearing | Kardell: layoff was pretextual; he was entitled to a hearing | County: bona fide layoff notice given; no pretermination hearing required absent request | Affirmed district court; adequate notice was given and Kardell never requested a hearing, so no due process violation |
Key Cases Cited
- Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009) (elements and burden-shifting framework for First Amendment retaliation claims by public employees)
- Ellins v. City of Sierra Madre, 710 F.3d 1049 (9th Cir. 2013) (view evidence in the light most favorable to nonmoving party on summary judgment)
- Johnson v. Multnomah Cty., 48 F.3d 420 (9th Cir. 1995) (speech about misuse of public funds can be public concern)
- Connick v. Myers, 461 U.S. 138 (1983) (framework for determining whether employee speech is of public concern)
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (due process requires notice and opportunity to respond before deprivation of property interest)
- Perry v. Sinderman, 408 U.S. 593 (1972) (public employer must grant a hearing at employee’s request when property interest is implicated)
- Levine v. City of Alameda, 525 F.3d 903 (9th Cir. 2008) (employee who requests pretermination hearing regarding layoff is entitled to one)