KIM SNELL v. THE STATE OF WASHINGTON; DEPARTMENT OF SOCIAL AND HEALTH SERVICES, JUDITH A. FITZGERALD and UNA I. WILEY
CASE NO. 3:20-cv-06028-JHC
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
April 19, 2023
I
INTRODUCTION
This matter comes before the Court on Defendants’ Motion for Summary Judgment. Dkt. # 32. The Court has considered the submissions in support of, and in opposition to, the motion, the applicable law, and the case file. Being fully advised, the Court GRANTS the motion in part and DENIES it in part.
BACKGROUND
Plaintiff Kim Snell brings five claims against Defendants State of Washington, its agency Department of Social and Health Services (DSHS), Judy A. Fitzgerald, and Una I. Wiley1 based on alleged mistreatment and retaliation she suffered during her employment at the DSHS Office of Financial Recovery (OFR) from 2014 to 2021. See generally Dkt. # 1.
Plaintiff joined the OFR in 2014 as a Revenue Agent 1. Dkt. # 41 at 1. She was promoted to Revenue Agent 2 in 2016 and then to Revenue Agent 4 in 2017. Id. at 1-2. She reported to Estate Recovery System Program Manager Shawn Hoage. Dkts. ## 1 at 3; 34 at 2.
A. Investigations of Shawn Hoage
In December 2018, Plaintiff complained to OFR management about anti-LGBTQ comments that Hoage made while on a personal phone call at the office, as well as Hoage‘s physically and orally threatening actions toward another employee (Lisa Ellis) for opposing these comments. Dkt. # 41 at 4-5. In January 2019, Hoage was placed on an alternative assignment pending an investigation into her conduct. Id. at 5.
In January 2019, Una Wiley became OFR Office Chief. Dkts. ## 34 at 1, 41 at 5.
In March 2019 Plaintiff provided a statement to the investigator assigned to Hoage‘s case. Dkts. ## 41 at 6; 41-1 at 41-42. Her statement included information about Hoage‘s anti-LGBTQ comments and aggressive conduct toward Ellis. Id. The investigator completed an Investigation Report and included a summary of his interview with Plaintiff but did not include information about Hoage‘s anti-LGBTQ comments. Dkt. # 41-1 at 50-55. Hoage received a
In June 2019, Plaintiff was informed that Hoage would be reinstated to her position. Dkt. # 41 at 7. Plaintiff told Anmarie Aylward, Director of OFR, that she objected to Hoage‘s reinstatement and that Hoage‘s actions violated DSHS‘s anti-discrimination, anti-retaliation, and hostile workplace policies. Id.
On June 12, 2019, a petition entitled “End Harassment at OFR” was circulated. Dkt. # 41-1 at 62-66. It called for rescission of DSHS‘s decision to reinstate Hoage. Id. Plaintiff signed the petition, along with about 30 other employees. Id. The petition was delivered to Cheryl Strange, DSHS Secretary. Id. The petition led to another investigation of Hoage. Dkt. # 41-1 at 72-118. The investigation ended in October 2019, and the investigator concluded that the allegations lacked specificity. Id. at 115. Hoage returned to her position, but because of a reorganization of the unit she reported to Plaintiff. Dkt. # 41 at 9.
In December 2019, Plaintiff met with Hoage to outline her job duties. Id. Plaintiff claims that during the meeting, Hoage indicated to Plaintiff that she knew what Plaintiff had said in her investigative interview. Id. at 10. The day after the meeting, Plaintiff reported Hoage‘s comment to Wiley. Id.; Dkt. # 41-1 at 120-21.
B. Amber Wright‘s promotion to MA4
In June 2018, Amber Wright joined the OFR as an Office Assistant 3. Dkts. ## 41 at 11; 35 at 1-2. Shortly after Wiley was hired as OFR Office Chief in January 2019, Wright requested a Developmental Job Assignment (DJA) to assist Wiley with administrative work. Dkt. # 35 at 2. A DJA is a voluntary assignment, designed to teach new skills, that an OFR employee can apply for on top of their own regular work. Id. Wiley approved Wright‘s DJA request in March 2019. Id.; Dkt. # 34 at 2-3.
Wright applied for the position and was selected. Dkts. ## 34 at 3; 35 at 2; 41 at 13-14. Plaintiff alleges that Wright was significantly less qualified than at least one other applicant. Dkt. # 41 at 13. She also alleges that Wiley showed favoritism to Wright by providing her with the interview questions before her interview and by raising the salary range of the position so that Wright‘s salary would more than double. Id. at 13-14.
Plaintiff claims that her signature was forged on the position description form for the MA4 position and as a result Wright‘s pay increased exponentially. Dkt. # 41 at 17.
C. Plaintiff‘s promotion to Collection Manager
In August 2019, a reorganization placed OFR under the oversight of Facilities and Finance Administration (FFA), which was managed by Assistant Secretary Judith Fitzgerald. Dkts. ## 33 at 1; 41 at 15.
In August 2019, Plaintiff applied for a Collection Manager position. Dkts. ## 34 at 4-5, 41 at 15. Plaintiff was interviewed and selected for the position. Id. Plaintiff claims that Wiley offered to share the interview questions before her interview, and she declined. Dkt. # 41 at 15. Wiley claims that she never made such an offer. Dkt. # 34 at 5.
D. Collections conference in New York
In November 2019, Plaintiff and Wiley attended a conference in New York City. Dkt. # 41 at 20. Plaintiff believed the conference was an unnecessary expense and brought this concern to HR, but ultimately attended the conference. Id. at 19-20.
E. Una Wiley‘s treatment of Chris Boyd
Beginning in March 2019, Plaintiff began to notice Wiley mistreating another supervisor named Chris Boyd. Dkt. # 41 at 21. Plaintiff claims that Wiley spoke with her about “getting rid of” Boyd by citing his FMLA condition as a reason he could not perform his job. Id.
In May 2019, Boyd was removed from his appointment as Financial Recovery Supervisor and re-classified as a Revenue Agent 3 (a lower-level position). Dkt. # 41 at 21. Soon after he was placed on alternate assignment. Dkt. # 41-2 at 24-28. Boyd returned to the office in July 2019 after being given an oral reprimand. Dkts. ## 41 at 23; 41-2 at 38. In October 2018, Boyd requested an investigation into ethics violations, discrimination, intimidation, and inappropriate behavior. Dkt. # 41-2 at 37-39. In December 2019, Boyd was reallocated to Financial Recovery Enforcement Officer 3 (a lower-level position than Revenue Agent 3). Dkt. # 41 at 25.
F. Plaintiff‘s complaints and alleged retaliation
As discussed above, Plaintiff reported Hoage‘s anti-LGBTQ statements and threatening behavior to OFR management in December 2018. Dkt. # 41 at 5. In March 2019 she provided a witness statement to the investigator assigned to Hoage‘s case. Id. at 6; Dkt. # 41-1 at 41-42. In June 2019, Plaintiff signed a petition objecting to Hoage‘s reinstatement. Dkt. # 41-1 at 62-66. In December 2019, after Hoage had returned to her position (but at this point reporting to Plaintiff, per a re-organization), Plaintiff met with Wiley to report that Hoage had brought up her investigation during a work meeting and it had made her feel uncomfortable. Dkt. # 41 at 10.
Plaintiff claims that after she met with HR on October 7, 2019, Wiley began a “mission” against her to revert her to her former position. Dkt. # 41 at 25. Plaintiff states the Wiley began to compile unfounded complaints against Plaintiff in a “communication log.” See Dkt. # 34-2. There is a dispute over the timing of these complaints; Wiley claims that she received “multiple complaints” about Plaintiff by late September. Dkt. # 34 at 5. Plaintiff claims that 20 complaints were made after she reported to HR on October 7, 2019, and two were made just a week before her report. Dkt. # 41 at 26-28.
Plaintiff emailed Fitzgerald on October 28, 2019, to schedule a meeting to address her concerns. Dkt. # 41-2 at 54-55. Fitzgerald forwarded the email to Wiley and Womack and stated that “it might not be a good idea” for her to meet with Plaintiff. Id. at 54. Womack replied and stated that she supported Fitzgerald meeting with Plaintiff, but Wiley expressed that she would rather Plaintiff address her concerns directly with her. Id. About 30 minutes after Wiley received Fitzgerald‘s forwarded email, Wiley emailed HR to request that Plaintiff‘s trial service be terminated and that she be reverted to her Revenue Agent 4 position. Id. at 60.
On November 12, 2019, Plaintiff met with Fitzgerald. Dkts. ## 41 at 32; 41-2 at 66. Plaintiff claims that she expressed her concerns about the forged signature, the misuse of government money, that Wiley was not following DSHS policies in interviewing and hiring, and Wiley‘s attacks on other employees. Dkt. # 41 at 32-33. Fitzgerald recalls the meeting differently, stating that Plaintiff simply talked about how much she enjoyed the conference and getting to know Wiley. Dkt. # 33 at 3.
On January 29, 2020, Wiley emailed Fitzgerald informing Fitzgerald that Plaintiff had been sharing interview questions and giving preferential treatment to certain internal applicants. Dkt. # 41-2 at 82-83. She expressed concerns about Plaintiff‘s “ability to make sound management decisions” and emphasized that she had been requesting that Plaintiff be reverted to her former position since October 2019. Id. Fitzgerald granted Wiley permission to revert Plaintiff to her former position. Id. at 85.
On January 30, 2020, Plaintiff received a reversion letter, effective February 1, 2020. Id. at 90. Her annual salary was reduced by $22,000.00. Dkt. # 41 at 41.
On February 4, 2020, Plaintiff emailed Womack in HR and expressed her belief that her reversion was an act of retaliation for her prior reports to HR about Wiley‘s inappropriate behavior. Dkt. # 41-2 at 95-96. Womack responded acknowledging receipt of the email and advised Plaintiff to contact the Employee Assistance Program (EAP). Id. at 98. The record does not contain any evidence that Plaintiff‘s February 4, 2020 email was responded to, other than by Womack to confirm receipt and to advise contacting the EAP. Id. at 104.
G. Tort claim
Plaintiff filed a tort claim on June 26, 2020. Dkt. # 41 at 45. DSHS contacted Wiley in July 2020 to request emails relevant to Plaintiff‘s tort claim. Dkt. # 41-2 at 112.
At some point after Plaintiff filed her tort claim, OFR management placed her on alternative assignment. Dkt. # 41 at 45.
In late July, DSHS received two complaints about Plaintiff, one alleging that she was abusing her supervisory authority (by violating hiring protocols, borrowing money from employees, and living with employees), and the other alleging that she was using or soliciting drugs at work. Dkts. ## 41 at 46; 41-2 at 120-21. HR conducted an investigation in July and August 2020. Dkt. # 41-3 at 2-6. The Washington State Patrol (WSP) conducted a separate investigation in October and November 2020. Id. at 8-103. While Plaintiff was under investigation, OFR management removed her from the organization chart and phone list, resulting in confusion among staff and humiliation for Plaintiff. Dkt. # 41 at 48.
In September 2020, Wiley suspended Plaintiff from supervisory duties because of the investigation. Dkts. ## 41 at 53, 41-3 at 105.
On April 9, 2021, Plaintiff received a Notice of Intent to Discipline for these offenses: (1) borrowing money from staff, (2) living with staff, (3) sharing interview questions with a candidate who was selected to fill a position, (4) fostering a contentious work environment with workplace gossip and an open disdain for management as a member of the leadership team, and (5) sharing confidential DSHS documentation with my attorney in a tort claim, including HIPAA information. Dkt. # 41-3 at 109-16.
H. Procedural history
Plaintiff filed her complaint here on October 19, 2020. Dkt. # 1. On March 1, 2023, Defendants filed a Motion for Summary Judgment seeking dismissal of all claims. Dkt. # 32.
III
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate if the evidence shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The moving party bears the initial burden of showing there is no genuine dispute of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can show the absence of such a dispute in two ways: (1) by producing evidence negating an essential element of the
The Court is “required to view the facts and draw reasonable inferences in the light most favorable to the [nonmoving] party.” Scott v. Harris, 550 U.S. 372, 378 (2007). The Court may not weigh evidence or make credibility determinations because those are “jury functions, not those of a judge.” Anderson, 477 U.S. at 249-50. But the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott, 550 U.S. at 380 (internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
B. Plaintiff‘s § 1983 claims2
To state a claim for relief under
a. Plaintiff‘s free speech claim
A government employer “may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public.” City of San Diego, Cal. v. Roe, 543 U.S. 77, 80 (2004). But the state “may not abuse its position as employer to stifle ‘the First Amendment rights [its employees] would otherwise enjoy as citizens to comment on matters of public interest.‘” Eng v. Vooley, 552 F.3d 1062, 1070 (9th Cir. 2009) (quoting Pickering v. Bd. of Ed. Of Tp. High Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563, 568 (1968)).
To reconcile a government employee‘s right to engage in speech and a government employer‘s right to protect its own legitimate interests in performing its mission, the Pickering court adopted a balancing test. The test requires courts to balance “the interest of the [employee] as a citizen, in commenting on matters of public concern, and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568; see also Connick v. Myers, 461 U.S. 138, 142 (1983). But not all statements by a public employee are entitled to balancing; the Supreme Court in Connick and later in City of San Diego clarified a threshold inquiry (implicit in Pickering itself) that in order to merit balancing, a public employee‘s speech must touch on a matter of “public concern.” City of San Diego, 543 U.S. at 82-83 (citing Connick, 461 U.S. at 143). The Court concludes that Plaintiff has not satisfied this threshold inquiry.
Plaintiff bears the burden of showing that her speech addressed an issue of public concern. See generally Connick, 461 U.S. 138; Bauer v. Sampson, 261 F.3d 775, 784 (9th Cir. 2001). “Speech involves a matter of public concern when it can fairly be considered to relate to ‘any matter of political, social, or other concern to the community.‘” Johnson v. Multnomah Cnty., Or., 48 F.3d 420, 422 (9th Cir. 1995) (quoting Connick, 461 U.S. at 146); see also
“First and foremost, we consider the content of the speech.” Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir. 2001). Plaintiff made internal complaints about what she perceived to be unfair hiring practices by her coworkers and superiors, inefficient government spending, unfair treatment of various employees by their managers, and violations of agency policies and procedures. See generally Dkt. # 41. Although she tries to frame her complaints as necessarily implicating the competency and efficiency of DSHS, the Court finds that they are mainly related to “internal power struggles within the workplace,” and are of little relevance “beyond the employee‘s bureaucratic niche.” Tucker v. Cal. Dep‘t of Educ., 97 F.3d 1204, 1210 (9th Cir. 1996). Plaintiff‘s complaints about her supervisors’ treatment of other employees (including Hoage and Wiley‘s treatment of Ellis, Boyd, and Wright), as well as her claims that DSHS failed to adequately investigate their behavior, are analogous to the complaints made in Desrochers v. City of San Bernardino, 572 F.3d 703, 711 (9th Cir. 2009). There, two San Bernardino police sergeants filed grievances against their supervisors, alleging that they had “created a hostile work environment,” violated various SBPD internal policies, and repeatedly harassed employees. Id. at 708. The sergeants also accused SBPD leadership of failing to take appropriate action upon receiving the grievances. Id. The Ninth Circuit concluded that the grievances primarily concerned a personality dispute centered on management style, and that there were no allegations
Even if the Court assumes that Plaintiff‘s speech did address a matter of public concern, and that the Pickering test would weigh in her favor, it concludes that qualified immunity protects Defendants Wiley and Fitzgerald from liability. Public officers are shielded from liability for civil damages if their conduct does not violate clearly established rights of which a reasonable person would have known. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Malley v. Briggs, 475 U.S. 335, 341 (1986); Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997). And the Ninth Circuit has held that, because the determination of whether a public employee‘s speech is constitutionally protected “turns on a context-intensive, case-by-case balancing analysis, the law regarding such claims will rarely, if ever, be sufficiently ‘clearly established’ to preclude qualified immunity under Harlow and its progeny.” Moran v. State of Wash., 147 F.3d 839, 847 (1998). Plaintiff has not pointed to any caselaw directly holding that her speech was protected, nor does she present extraordinary facts that would render the results of the multi-factor Pickering test any easier to divine than the average case. Thus, she has not shown that her right to speak was so “clearly established” that Defendants would have known that their actions violated her First Amendment rights. The Court therefore grants Defendants’ motion as to Plaintiff‘s free speech claim.
b. Plaintiff‘s right to petition claim
The rights of speech and petition share substantial common ground and are often considered “cognate rights.” See, e.g., Thomas v. Collins, 323 U.S. 516, 530 (1945). “[T]he right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 896-897 (1984). Plaintiff claims that Defendants retaliated against her “for the filing of the tort claim and her prior whistleblowing actions.” Dkt. # 1 at 14.
In Borough of Duryea, Pa v. Guarnieri, 564 U.S. 379 (2011), the Supreme Court addressed whether the First Amendment‘s “public concern test” applies to the Petition Clause. It answered in the affirmative, explaining that “[a]doption of a different rule for Petition Clause claims would provide a ready means for public employees to circumvent the test‘s protections.” Id. at 393. The Court emphasized that the government can and often does adopt statutory and regulatory mechanisms to protect the rights of employees against improper retaliation or discipline, while preserving important government interests, and that the petition clause is “not an instrument for public employees to circumvent these legislative enactments when pursuing claims based on ordinary workplace grievances.” Id. at 392. For the reasons articulated above, the Court finds that Plaintiff‘s complaints and tort claims do not raise issues of public concern.3 Further, even if the First Amendment did protect Plaintiff against retaliation for the filing of her tort claims, Defendants Wiley and Fitzgerald would be entitled to qualified immunity since Plaintiff has provided no caselaw “clearly establishing” that her lawsuits involved issues of public concern. See Harlow, 457 U.S. at 818. The Court therefore grants Defendants’ motion as to Plaintiff‘s right to petition claim.
Lastly, to the extent that Plaintiff asserts § 1983 claims against DSHS or the State of Washington, the Court dismisses these claims because “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep‘t of State Police, 491 U.S. 58, 71 (1989).
C. Jurisdiction over state-law claims
Defendants argue that if the Court dismisses both of Plaintiff‘s § 1983 claims, it should decline to exercise supplemental jurisdiction over the remaining state-law claims. Dkt. # 32 at
D. Plaintiff‘s WLAD Retaliation claim
To establish a prima facie case of retaliation under
The parties address entirely different claims in their briefing. Defendants’ motion argues that Plaintiff has not established a prima facie case of WLAD discrimination. See Dkt. # 32 at 17-21. They cite
But Defendants’ motion does include a section titled “DSHS Had Non-Discriminatory Reasons for Ending Ms. Snell‘s Trial Services as Collections Manager,” Dkt. # 32 at 19, and their reply contains a section entitled “Defendants Have Produced Legitimate, Nondiscriminatory Reasons for Taking Action Against Ms. Snell,” Dkt. # 42 at 9.6 These
Defendants argue that Plaintiff was reverted from Collection Manager to her former RA4 position because she “could not implement two fundamental managerial practices, first, to support upper management decisions, and second, to collaborate with her management peers and not interfere with their work or the management of their staff.” Dkt. # 32 at 19.8 Defendants argue that Plaintiff was reverted because she borrowed money from employees she supervised, accepted gifts from staff, and asked to stay overnight at her staff‘s homes. Id. Defendants state that “Ms. Snell‘s continued personal relationships with those she supervised led, in part, to the end of Ms. Snell‘s trial service.” Id. Defendants add in their reply that Plaintiff was reverted based on her refusal to complete tasks directed by Wiley, and because she violated hiring practices such as sharing interview questions with internal candidates. Dkt. # 42 at 10.9
E. Plaintiff‘s RCW 63.60 claim
[Any person . . . uses or authorizes the use of a living or deceased individual‘s or personality‘s name, voice, signature, photograph, or likeness, on or in goods, merchandise, or products entered into commerce in this state, or for purposes of advertising products, merchandise, goods, or services, or for purposes of fund-raising or solicitation of donations, or if any person disseminates or publishes such advertisements in this state, without written or oral, express or implied consent of the owner of the right . . .
The plain language of the statute does not cover the conduct at issue. A PDF does not constitute “goods, merchandise or products entered into commerce in this state” under the ordinary meaning of those terms, nor was it used for the purposes of advertising products, merchandise, goods, or services, or for purposes of fund-raising or solicitation of donations.
The only support Plaintiff cites for her argument is an unpublished Washington Court of Appeals case in which the court found that a real estate appraisal fell under the statute‘s definition of a “product” because it is “something produced by physical labor or intellectual effort: the result of work or thought.” See Immelt v. Bonneville, 2014 WL 2960422, 182 Wash. App. 1005 (2014) (citing WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 1810 (2002)).
Plaintiff cites no other authority to support her argument that a PDF falls under the statute, instead arguing that “[t]here is no reason why the protection should not extend to a forgery fraudulently used to boost the pay of a government employee.” Dkt. # 38 at 24. The Court concludes that the plain language of the statute prohibits this application and therefore grants Defendants’ motion as to Plaintiff‘s
F. Plaintiff‘s RCW 42.40 claim
The parties agree that to establish a prima facie case of retaliation, an employee must show that (1) they engaged in statutorily protected activity, (2) the employer took an adverse employment action, and (3) the adverse action was caused by the employee‘s activity. See Dkt.
The agency presumed to have taken retaliatory action . . . may rebut that presumption by proving by a preponderance of the evidence that there have been a series of documented personnel problems or a single, egregious event, or that the agency action or actions were justified by reasons unrelated to the employee‘s status as a whistleblower and that improper motive was not a substantial factor.
Defendants argue that Plaintiff is not entitled to protection under
Plaintiff points out in her response that in addition to her meeting with Wiley and HR, she also reported her concerns to Fitzgerald, the Assistant Secretary of DSHS. Dkt. # 38 at 25; see also Dkts. ## 41 at 32; 41-2 at 66. And many of the adverse employment actions she alleges in her briefing occurred after this meeting. See, e.g., Dkts. ## 41-2 at 90 (January 2020 reversion), 41 at 45 (summer 2020 placement on alternative assignment); 41-3 at 2-6 (July/August 2020 internal investigation); 41-3 at 8-103 (October/November 2020 WSP investigation); 41-3 at 109 (April 2021 Notice of Intent to Discipline); 41-3 at 266-75 (August 2021 demotion). Defendants concede in their reply that Fitzgerald is a public official “authorized to receive [whistleblower] reports” under the statute, Dkt. # 42 at 11, but claim that she “does not recall [Plaintiff] giving her statements indicating these were whistleblower complaints or that alerted her of a need to forward such information to the State Auditor‘s Office or HR to investigate,” id. at 11-12.
And with respect to Defendants’ proffered legitimate reasons for taking adverse actions against her, as discussed above, Plaintiff has provided sufficient evidence that improper motive was a substantial factor in these actions. See supra Section III.D. The Court therefore denies Defendants’ motion as the Plaintiff‘s
G. Plaintiff‘s motion to strike
Plaintiff argues that the Court should strike paragraphs 4, 5, 9, 15, 16, 17, 18, and 20 of Wiley‘s declaration, paragraphs 6, 8, and 9 of Fitzgerald‘s declaration, and paragraph 9 of Wright‘s declaration as hearsay. Dkt. # 38 at 26. Regarding Wiley‘s declaration, the Court did not consider paragraphs 4, 5, 9, 15, or 17 in reaching its conclusions and therefore denies the motion as moot, and without prejudice, as to these paragraphs. With respect to paragraphs 16, 18, and 20, which discuss complaints about Plaintiff‘s behavior that Wiley allegedly received from other OFR employees, these paragraphs are not being offered to prove the truth of the
Lastly, Defendant argues that Wiley‘s communication log should be stricken as containing hearsay and double hearsay statements. Dkt. # 38 at 26. The Court did not consider any notes from Wiley‘s communication log in reaching its conclusions and therefore denies the motion as moot and without prejudice.
IV
CONCLUSION
For these reasons, the Court GRANTS Defendants’ motion with respect to Plaintiff‘s § 1983 claims and
John H. Chun
United States District Judge
John H. Chun
John H. Chun
United States District Judge