Pool v. VanRheen

297 F.3d 899, 2002 WL 1602470
Court of Appeals for the Ninth Circuit·Decided July 22, 2002·No. No. 00-35997·Published·Cited by 17 cases

Opinion

RHOADES, Senior District Judge.

Vera Pool appeals the district court’s grant of summary judgment in favor of the Defendants on: (1) her fourth claim for relief against all remaining Defendants1 for retaliation against Pool’s exercise of her constitutionally protected right to free speech under 42 U.S.C. § 1983; and (2) her eleventh claim for relief against Defendant Multnomah County for retaliation under Oregon Revised Statutes § 659.030A(l)(f).2 We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

I. Background

Vera Pool, an African American woman, began working as a corrections officer for the Multnomah County Sheriffs Office (“Sheriffs Office”) in 1970. Having moved up through the ranks to become a lieutenant, she ran for the position of Sheriff in 1994 and 1995 against the incumbent John Bunnell and Defendant' Dan Noelle. After a poor showing in the primary, Pool dropped out of the race and supported Noelle who won the election in May 1995. Sheriff Noelle then appointed Pool to the position of Commander of the Corrections Support Division. As Commander, Pool was in charge of records, the restitution center, the matrix system, close-street supervision and the jail intervention drug program. Her direct and only supervisor was Sheriff Noelle.

Sheriff Noelle appointed another woman and three men to the other four Commander positions; however, Pool was the only racial minority. Sheriff Noelle indicated that he selected Commanders “who were respectful of diversity and who, by their actions and their words, would establish a new tone of respect, cooperation and teamwork.” Sheriff Noelle selected Pool because “she was pretty fearless in terms of getting up and out in public and talking about some needs the Sheriffs Office had, particularly in the area of civil rights, human relations and how people were treated.” On June 29, 1995, Sheriff Noelle sent a letter to all Sheriffs Office staff regarding his goals for the new Commanders: “Improving agency cohesiveness. Pursuing an atmosphere of openness and good faith with employees.... Developing an expectation of leadership by example ” (emphasis in original letter). Pool stated in her deposition that one of her duties as a Commander was to act as a liaison for the Sheriff with the African American community “to address issues and concerns, promote the sheriff on a positive note in terms of employment.”

On June 19, 1997, an acquaintance asked Pool to look into the release status of his business associate, Cleveland Brigham, who was in jail on contempt charges. Pool determined that Brigham had a low “matrix” score that would normally qualify him for release in the event of overcrowding. However, unbeknownst to Pool, Brigham had been ordered by the sentencing judge to serve his full sentence, triggering his placement on the “Y” list and precluding an early release regardless of his matrix score. Without consulting the sentencing judge or the classification supervisor, Pool ordered Brigham off the “Y” list. Brigham was released that night after serving only three days of his 60 day sentence.

[904]*904Upon discovering that Brigham had been released, the Multnomah County District Attorney and the sentencing judge expressed concern and demanded Brigham’s arrest. At Sheriff Noelle’s request, the District Attorney conducted a criminal investigation into Pool’s actions, finding insufficient evidence to prove that Pool had engaged in criminal activity.

Sheriff Noelle then ordered an internal affairs investigation into the circumstances surrounding the Brigham release, conducted, with Pool’s approval, by Washington County Sheriff Jim Spinden, an independent investigator outside the Multnomah County Sheriffs Office. Sheriff Spinden assigned Sergeant Stephen Wilhelm to conduct the investigation. Pool was given a copy of the charges, was interviewed by Sergeant Wilhelm with her attorney present and was given the opportunity to respond to all allegations.3

Sergeant Wilhelm prepared a report after the investigation, dated September 11, 1997 (“Report”), finding that Pool: (1) had not been truthful in making statements that she reported Brigham’s release to Sheriff Noelle before she knew about the problems surrounding the release, (2) failed to exercise due caution, (3) was delinquent in her defined duties in removing Brigham from the “Y” list without first obtaining all available information, and (4) acted improperly in using frequent flier miles earned on Multnomah County sponsored trips for personal use.

On September 29, 1997, Pool responded to the Report in writing, asserting that she had not intended to misstate information and had informed Sheriff Noelle of Brigham’s release in an incidental conversation in the hall before Sheriff Noelle left on vacation. Pool also contested the finding that she exceeded her defined duties in removing Brigham from the “Y” list and claimed she was unaware of Multnomah County’s policy on frequent flier miles. However, Pool concurred with the Report’s finding that she failed to exercise due caution before authorizing Brigham’s release: “As to the question of whether I should have investigated further before directing the removal of Mr. Brigham from the Y List, with 20/20 hind-sight, I would agree.”

In an October 20, 1997 memorandum (“Memorandum”), Sheriff Noelle reprimanded Pool on the failure to exercise due caution charge and changed the other findings from sustained to unfounded. Pool retained her Commander’s title, pay rate and all other benefits. In her deposition, Pool stated that at that time she did not think this written reprimand was based on discriminatory motives.

Due to the significant media attention surrounding Brigham’s incident, Sheriff Noelle released the Memorandum to the press and released the investigation records of the internal affairs unit in response to a public records request. Sergeant Bjork, the union president, had “literally hundreds of conversations” with upset corrections and law enforcement employees about the Brigham incident.

Soon after, on October 31, 1997, Sheriff Noelle designated Pool “Acting Sheriff’ while he was out of town for three or four days. The following day, Pool attended a meeting organized by a group of African American and Latino activists critical of the way minorities were treated by the Portland media — in particular, The Oregonian’s recent handling of Portland Police Chief Charles Moose and the investigation [905]*905of Pool. At the meeting, Pool arranged for a friend to read a Letter to the Editor (“Letter”) in which Pool criticized the Sheriffs Office for its handling of the investigation and “good ole boy network.” In the Letter, Pool implied that the Sheriffs Office was “very much like a septic tank, the really big chunks always rise to the top.” Pool described in detail her view of the recent investigation and the discriminatory treatment she received from Sheriffs Office employees. She also discussed her removal of Brigham from the “Y” list and attempted to justify her actions. Pool commended Sheriff Noelle for his stand on diversity in the Sheriffs Office and stated her support for his philosophy on diversity.

The next day The Oregonian reported on the meeting and Pool’s comments.

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Pool v. VanRheen, 297 F.3d 899, 2002 WL 1602470 (9th Cir. 2002).

297 F.3d 899 (Pool v. VanRheen) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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