Lead Opinion
Opinion by Judge FISHER; Concurrence by Judge BERZON.
This appeal involves an alleged retaliatory discharge of an employee after she complained about co-workers and one of her supervisors and presents a question that this circuit has not yet answered: Can a final decision maker’s wholly independent, legitimate decision to terminate an employee insulate from liability a lower-level supervisor involved in the process who had a retaliatory motive to have the employee fired? We conclude that, on the record in this case, the answer must be yes, because the termination decision was not shown to be influenced by the subordinate’s retaliatory motives.
The plaintiff-appellee, Lea Lakeside-Scott (“Scott”), was fired from her position as an information systems specialist at Multnomah County’s Department of Community Justice (“DCJ”), ostensibly for her improper use of DCJ’s computers and email system. Scott then brought this lawsuit alleging that her termination was actually in retaliation for her engaging in speech protected under the First Amendment and by Oregon’s whistleblowеr protection statute. While she was employed at DCJ, Scott had complained about co
Scott filed her retaliatory discharge claim against the County and Brown in federal district court. After a trial, a jury found in Scott’s favor, awarding her $650,000 in compensatory and punitive damages against Brown.
BACKGROUND
Scott began her employment in DCJ’s information services unit in August 1997. During the relevant time period, her direct supervisor was Monna Hogue. Hogue reported to Dan Gorton, who reported to Brown, who, in turn, reported to the department’s director, Ms. Fuller.
Scott frequently complained to Gorton and Hogue about her perceived problems in the office. Her grievances included personality conflicts with other DCJ employees, promotions she did not receive and alleged misuse of the County computer system by co-workers and managers. In October 2001, Scott filed a formal complaint with the Oregon Bureau of Labor and Industries (“BOLI complaint”) alleging, among other things, that Brown gave preferential treatment to gays and lesbians in hiring and promotions. Brown learned about the BOLI complaint shortly thereafter; she was shocked by its allegations of favoritism, which she took personally.
In November 2001, Fuller ordered Brown to search the email of an employee, David Landis, as part of an investigation of another DCJ employee who had allegedly sent racially discriminatory emails at work. Lacking the technical ability to do the search herself, Brown directed Tami Williams to do it. Williams sent the emails and attachments she recovered during her search to the human resources department. Attached to one of these emails was a journal, written by Scott and sent by her to Landis, that contained discriminatory comments and excerpts of other employees’ work documents. It is unclear whether Williams knew about the journal when she sent the emails to human resources. After human resources personnel discovered the journal, either they or Fuller instructed Brown to look for additional material from Scott.
Once Scott was placed on administrative leave, Fuller directed John Turner, an investigator on her staff, to conduct an internal inquiry into Scott’s possible violations of County work rules or policies. Brown was not involved in framing the charges to be investigated, outlining the direction of the investigation or providing a list of witnesses. Rather, Turner met with Collette Umbras, the human relations department manager, to outline which official work rules were implicated by Scott’s supposed misconduct. The charges ultimately included misusing County property, conducting personal business on County time, inappropriately accessing the emails and documents of other employees and engaging in prohibited workplace harassment and prejudicial acts. Fuller sent Scott a letter to notify her of these charges as Turner began his investigation.
Over the course of his investigation, Turner interviewed 22 witnesses, including Brown and Scott. He also reviewed Scott’s journal and several of her emails. Brown’s role in the investigation was limited to answering Turner’s questions; she did not provide him with any written materials. For her own part, Scott admitted to Turner that she had engaged in the conduct that had led to the charges against her, and she conceded that she was fully aware of the policies, procedures and rules governing the use of County property— particularly those prohibiting harassment and discrimination and accessing databases for personal or non-business related reasons. She said, however, that she did not know her behavior violated any of these rules and claimed that Hogue knew about and had authorized many of her actions.
At the conclusion of his investigation, Turner produced a report to Fuller detailing his findings and recommending that all of the charges against Scott be sustained. Fuller sent a letter to Scott describing the report’s findings and, after meeting with Scott to provide her with an opportunity to explain her actions, decided to terminate her employment. Fuller testified that although Scott’s journal was the reason she decided to initiate the investigation, she based her decision to fire Scott on all of the evidence that Turner procured during
Scott brought a retaliatory discharge lawsuit in federal district court against the County and Brown, alleging she was wrongfully terminated because she had filed the BOLI complaint and openly criticized both DCJ and Brown, and claiming these were protected activities under the First Amendment and 42 U.S.C. § 1983 as well as under Oregon’s Whistle-blower Act. After Brown moved unsuccessfully for summary judgment, a jury found in Scott’s favor and awаrded her economic damages of $140,000, noneconomic damages of $10,000 and punitive damages of $500,000. The district court denied Brown’s motion for JMOL and this timely appeal followed.
STANDARD OF REVIEW
‘We review the denial of a motion for a judgment as a matter of law de novo.” Ostad v. Oregon Health Sci. Univ.,
I.
“To state a First Amendment claim against a public employer, an employee must show: (1) the employee engaged in constitutionally protected speech; (2) the employer took ‘adverse employment action’ against the employee; and (3) the employee’s speech was a ‘substantial or motivating factor for the adverse action.’ ” Marable v. Nitchman,
Brown expressly assumed in her appellate briefs that Scott’s BOLI complaint was protected speech.
We have assessed the liability of a subordinate supervisor who was not the final decision maker under Mt. Healthy’s “substantial or motivating” standard as well as its mixed motive approach. Compare Ostad,
In Gilbrook, we established that a “subordinate cannot use the non-retaliatory motive of a superior as a shield against liability if that superior never would have considered a dismissal but for the subordinate’s retaliatory conduct.”
II.
Most of this circuit’s retaliatory motivation jurisprudence has arisen from cases in which the issue has been whether the final decision maker was liable because she was retaliating against the employee or her decision was tainted by the retaliatory motivation of a subordinate. See, e.g., Poland v. Chertoff,
Gilbrook, in specifically addressing a subordinate supervisor’s liability, did observe that as a general matter the nature of § 1983 liability is such that “the ‘requisite causal connection can be established not only by some kind of direct personal participation in the [termination], but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.’ ”
Here, it is not clear that Scott relies on Brown’s role in bringing the journal to Fuller’s attention or her participation in the administrative leave decision as alone sufficient to support the jury’s verdict finding Brown liable for Scott’s termination.
Given the evidence that Fuller made an independent, principled decision for her own reasons to investigate and eventually terminate Scott, there was by definition no “constitutional injury.” Id. at 854. Scott was terminated for violating County and DCJ rules through actions she admitted she had committed. As we emphasized in Gilbrook, “[w]e do not hold that a final decision-maker who lacks any improper motive never can absolve a subordinate of liability for his or her retaliatory acts, any more than we hold that such a decision-
A recent “upstream” case in which a biased subordinate’s involvement in an adverse employment action rose to the level of tainting the final decision tо terminate is illustrative. See Poland,
The facts before us here show a workplace in which the initial report of possible employee misconduct came from a presumably biased supervisor, but whose subsequent involvement in the disciplinary process was so minimal as to negate any inference that the investigation and final termination decision were made other than independently and without bias. We must not “place an employee in a worse ‘position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing.’ ” Gilbrook,
III.
With the foregoing principles and spectrum of cases as our guide, and recognizing “that the ultimate question of the subordinate’s liability ‘is an intensely factual one, the results of which will vary depending on the circumstances,”’ Ostad,
As to the discovery of Scott’s apparently improper journal that triggered the inquiry into her conduct, it is relevant that Brown became aware of the document only incidentally through an investigation of another employee initiated by Fuller and the human resources department. Moreover, although Brown was present at the meeting where, according to standard practice, it was decided that Scott would be placed on administrative leave pending the investigation, that decision did not make Scott’s termination a foregone conclusion. Instead, senior management, aware of Scott’s apparent misconduct, pursued an inquiry into the alleged violations. There is no evidence that but for Brown, Fuller would
There is no evidence that Brown outlined possible reasons for Scott’s discharge or recommended her termination, either at the initial meeting or thereafter. Cf. Gilbrook,
Instead, the record shows that Brown played a very limited role in the investigation. She did not provide a witness list or any documentary evidence during Turner’s investigation, and there is no evidence that Brown told Turner anything inappropriate during their interview. Cf. Poland,
Fuller’s substantial role in the process that resulted in Scott’s termination is as important as Brown’s minimal participation. Fuller authorized the thorough investigation of the charges against Scott. Once she received Turner’s report, she critically examined its contents, meeting with Scott to allow her to present any mitigating evidence and ultimately rejecting two of Turner’s recommendations. Scott herself admitted, “I actually thought that she was listening, and she said she would consider everything.” As outlined in the termination letter composed and signed by Fuller, in the final analysis she fired Scott for violations of formal work rules, executive orders and contractual agreements. Scott admitted she was fully aware of these policies and rules, and both Fuller and Umbras emphasized that they had never before seen violations of this magnitude. Under these circumstances, no reasonable juror could have concluded that the investigative process was a “sham or conduit” for Brown’s animosity or that Fuller was “duped” into terminating Scott. Willis,
Finally, practical considerations also animate our conclusion. As discussed above, all aspects of Brown’s limited involvement in this case were at the express direction or under the authority of her superiors in the management structure. To say that the County’s investigative process was fatally and irrevocably tainted by Brown’s overall limited involvement would stymie legitimate corporate management and discipline, which must necessarily involve and rely upon supervisory staff. Cf. City of San Diego v. Roe,
CONCLUSION
On the evidence presented to the jury, we hold as a matter of law that Fuller’s wholly independent decisionmaking negated any causal connection between Brown’s retaliatory bias and Scott’s termination. Brown therefore is not liable for any damages Scott suffered as a result of her discharge, and the district court incorrectly denied Brown’s motion for a JMOL. We reverse the court’s judgment and remand for entry of judgment for Brown.
REVERSED and REMANDED.
Notes
. The district court ultimately dismissed all of the claims against the County, which are not at issue in this appeal.
. We view the evidence in the light most favorable to the party in whose favor the jury returned a verdict and draw all reasonable inferences in her favor. See Settlegoode v. Portland Pub. Sch.,
. Brown again assigned the search to Williams, who gathered some additional information within weeks. On this timetable, Williams would have completed her assignment while the investigation discussed below was in progress. Scott did not call Williams as a witness and there is no evidence about
. On appeal, Brown also challenges (1) the district court's denial of her motions for summary judgment and to exclude Landis' testimony and (2) the award of punitive damages. Bеcause we reverse the denial of JMOL, we do not reach the denial of Brown's motion in limine or the question of punitive damages. We do not review the district court's pretrial denial of Brown's motion for summary judgment because "[t]he denial of a motion for summary judgment is not reviewable on an appeal from a final judgment entered after a full trial on the merits.” Locricchio v. Legal Servs. Corp.,
. Although Barnes analyzed a summary judgment motion, the Supreme Court has ex
. We deny Brown's subsequent request for a remand in light of Garcetti,
. We limit the scope of our inquiry to Scott’s ultimate termination. Although being placed on administrative leave might qualify as an adverse employment action and we have suggested an investigation of an employee might so qualify, see, e.g., Poland v. Chertoff,
. Claims brought under Title VII and the Age Discrimination in Employment Act apply a different burden shifting framework than § 1983 claims, and we do not intimate that these cases are controlling here. See Poland,
. See n. 8, supra.
. Judge Berzon says she does not see a difference between "targeting someone for investigation and retaliating against them by reporting them.” Concurrence at 1743. What we mean is that Scott did not claim that Brown selectively enforced employee regulations only against her, while ignoring violations by other employees. Nor did Scott show that Brown monitored her behavior more closely in the hopes of reporting her for misconduct; indeed, Brown found Scott’s journal in the course of investigating another employee. This distinction is relevant in showing that Scott's misconduct was not brought to Fuller’s attention solely because of Brown's animus such that Fuller never would have made the termination decision but for Brown’s conduct. See Gilbrook,
. Compare, e.g., Gee v. Principi,
. Rebecca Hackenberg, another DCJ employee, testified that she told Hogue the administrative leave "sure seems like retaliation about that BOLI complaint, doesn’t it?”, and that Hogue "kind of looked sideways out of the window, and [] went, ‘yeah.’ ” This testimony does not establish Brown’s liability for Scott’s termination. First, Hackenberg did not mention Brown throughout her entire testimony, let alone implicate her as a source for the alleged retaliation. Second, as we have noted, the administrative leave did not make Scott's termination a foregone conclusion.
Concurrence Opinion
concurring in the judgment:
Although I concur in the result of this case, I do not agree with the majority’s conclusion that there was insufficient evidence from which a reasonable jury could have found that Brown’s retaliatory ani
I disagree. I would hold that Scott met her burden of establishing that Brown’s retaliatory animus was a “substantial or motivating factor” in Fuller’s decision to terminate Scott. See Gilbrook,
Alternatively, the majority can possibly be read as holding that a supervisor, even if motivated by retaliatory animus, may not be held liable for instigating an investigation likely to result in an adverse action, as long as the superior who makes the final decision does so independently. If so, the holding squarely conflicts with Gil-brook, which held to the contrary.
At the same time, the facts of this case indicate that Fuller’s investigation would have occurred even without Brown’s instigation. I would therefore hold that Brown also met hеr burden, under part two of the two-part Gilbrook/Mt. Healthy burden-shifting framework, of showing that Scott’s discharge would have occurred “even in the absence of the protected conduct.” See Gilbrook,
A. The “Substantial or Motivating Factor” Requirement
Under the two-part burden-shifting framework outlined by the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle,
In this case, as in Gilbrook, the defendant is the supervisor who initially reported the plaintiffs misconduct, not the employer or the individual who made the ultimate decision to terminate. See Gilbrook,
In addition, vicarious liability cases implicate very different policy considerations than subordinate liability cases, particularly with respect to the protection of an employee’s First Amendment rights. In the vicarious liability context, the concern is that, in the absence of a rule imposing vicarious liability, an employer could evade liability by isolating the final deeision-maker and, in essence, willfully ignoring the bias of a subordinate. Thus, the inquiry in a vicarious liability case is into whether the superior’s investigation and termination decision were truly independеnt.
By contrast, the concern in a subordinate liability case is that too lenient a standard will permit supervisors deliberately to target individuals who have engaged in protected activity, knowing that their actions will lead superiors lacking retaliatory animus to harm the individual. The issue is not, in other words, whether the employer is acting with willful ignorance (which an “independent investigation” requirement is good at measuring), but rather whether the subordinate supervisor is deliberately placing the subordinate in the way of harm (which the “independent investigation” requirement only partly measures). Accordingly, as will appear, the inquiry in a subordinate liability case is broader, requiring not only a determination as to whether the investigation and termination decision were influenced by the biased subordinate, but also whether the subordinate initiated those proceedings in retaliation for the employee’s protected activity.
The focus in a case such as this one, then, must be on the supervisor’s conduct — specifically on whether that conduct (a) was a “substantial or motivating factor” in the employee’s termination, and (b) was motivated by retaliatory animus.
I agree with the majority that, on this record, Brown did not in any substantial way influence Fuller’s investigation once it began, or Fuller’s ultimate decision to terminate Scott.
But Brown’s lack of participation in Fuller’s investigation and decision to terminate does not end the causation inquiry.
It is undisputed that Fuller launched the investigation that led to Scott’s termination immediately after Brown presented her with Scott’s journal. Because Scott’s journal contained significant evidence of misconduct, Brown either knew or should have known that presenting the journal to Fuller would “set[] in motion a series of acts” by Fuller that “would cause [Fuller] to inflict the constitutional injury,” i.e., to terminate Scott. See Gilbrook,
Although the evidence could support the majority’s interpretation, it does not foreclose the opposite conclusion. See Ostad,
Moreover, the majority is wrong if it is suggesting that the fact that Brown’s action in bringing the journal to Fuller’s attention occurred while “Brown was engaged in activities typical and appropriate for her position,” Maj. Op. at 805, precludes the jury’s verdict that she nonetheless acted with a retaliatory motive. Supervisors have the power to retaliate precisely because their responsibilities include the authority to take steps that will foreseeably harm their subordinates’ employment circumstances. If we absolve supervisors from liability for First Amendment violations whenever they take actions while engaged into their normal responsibilities, then they will almost never be liable, even if the motive for an action challenged was retaliatory.
Here, the jury necessarily found that at least one substantial reason Brown brought the journal to Fuller’s attention was that she was angry about the BOLI charge, and, as I have shown, that factual conclusion, although quite debatable, is supported by adequate evidence. That bringing work infractions to Fuller’s attention was part of Brown’s job does not negate the finding as a matter of law, any more than a supervisor with the responsibility to hire and fire for rule infractions would be аbsolved of liability as a matter of law if he fires a subordinate who en
Because a reasonable jury could have found that Brown acted with a retaliatory motive when she brought Scott’s journal to Fuller’s attention, and because that act was a substantial and foreseeable link in the causal chain that led to Scott’s termination, I cannot agree with the majority that Scott failed, as a matter of law, to show that her protected activity was “a substantial or motivating factor” in her termination.
It is possible that rather than concluding that Brown did not act with a retaliatory intent when she reported Scott to Fuller, the majority is instead holding that, even if Brown acted with a retaliatory motive, Fuller’s independent investigation and termination decision absolved Brown of any liability as a matter of law. If so, the majority’s holding is in tension with Gil-brook.
In Gilbrook, the plaintiffs-employees sued both their subordinate supervisors and the superior who made the ultimate decision to terminate. Gilbrook,
B. Brown’s Affirmative Defense
Because I would hold that Scott presented sufficient evidence from which a jury could have concluded that her protected conduct was a “substantial or motivating factor” in her termination, I would reach the question whether Brown established the affirmative defense outlined in Mt. Healthy. That defense required Brown to demonstratе, by a preponderance of the evidence, that “the disciplinary action would have been taken against [Scott] even in the absence of the protected conduct.” Gilbrook,
Brown met that burden here. She introduced evidence that the journal initially was uncovered through an unrelated investigation, instigated by Fuller, of another employee; that Brown herself did not discover the journal; that employees in the human resources department were independently aware of the journal; and that the journal, by virtue of its length and inflammatory content, was likely to attract attention from HR employees and to war
In sum, I would reverse the jury’s verdict under part two, not part one, of the Mt. Healthy burden-shifting framework on the grounds that, based on the facts presented, Fuller’s investigation — and hence Scott’s termination — was inevitable. Such a holding acknowledges the deference we must afford to a reasonable decision by a jury, and avoids placing too great an evi-dentiary burden on a plaintiff seeking to vindicate her First Amendment rights.
For all these reasons, I concur in the judgment, but not in the majority opinion.
. On page 806, the majority states that a supervisor must have a "significant” influence on a superior's investigation in order for that investigation to have been impermissibly tainted. Maj. Op. at 806. In the next sentence, it quotes a passage from Poland in which the court noted that the supervisor in that case had “had a pervasive influence on the аdministrative inquiry that led to the adverse employment action.” Id. I do not read
. The majority’s view on this point is not clear. On pages 804 and 805, the majority may be suggesting that a biased supervisor who initiates a disciplinary process for retaliatory reasons is not necessarily liable for a constitutional tort. But the passage rеfers to a supervisor who acts "while performing her normal supervisory responsibilities,” thus indicating that the hypothetical supervisor, although generally biased, was acting without a retaliatory motive in instigating the investigation; otherwise she would not have been simply carrying out "her normal supervisory responsibilities.”
. This causation principle is directly analogous to the "intervening force” concept in basic tort law, and differs critically from the principles that underlie vicarious liability in tort law. An "intervening force” is one which "actively operates in producing harm to another after the [defendant's] negligent act or omission has been committed.” See Restatement (Second) of Torts § 441. Despite the presence of an "intervening force” — in this case, Fuller's investigation and decision to terminate — the defendant remains liable to the plaintiff if the defendant "reasonably could have anticipated or foreseen the intervening acts and its consequences." See 3 Stuart Speiser, Charles Krause, & Alfred Gans, The American Law of Torts § 11:9 (1986); Restatement (Second) of Torts § 442A.
. The majority performs this analysis, see Maj. Op. at 807-08, but does not acknowledge it as part of Brown's affirmative defense.