Shepherd v. McGee

986 F. Supp. 2d 1211, 37 I.E.R. Cas. (BNA) 148, 2013 WL 5963076, 2013 U.S. Dist. LEXIS 159432
CourtDistrict Court, D. Oregon
DecidedNovember 7, 2013
DocketNo. 03:12-CV-02218-HZ
StatusPublished
Cited by3 cases

This text of 986 F. Supp. 2d 1211 (Shepherd v. McGee) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shepherd v. McGee, 986 F. Supp. 2d 1211, 37 I.E.R. Cas. (BNA) 148, 2013 WL 5963076, 2013 U.S. Dist. LEXIS 159432 (D. Or. 2013).

Opinion

OPINION & ORDER

HERNANDEZ, District Judge:

Plaintiff Jennifer Shepherd brings this 42 U.S.C. § 1983 First Amendment retaliation claim against Defendant Ken McGee, the Human Resources Manager for Plaintiff’s former employer the Oregon Department of Human Services (DHS). Both parties move for summary judgment. Because I agree with Defendant that DHS’s legitimate interests outweigh Plaintiff’s First Amendment rights, I grant Defendant’s motion and deny Plaintiffs motion.

BACKGROUND

Plaintiff began working for DHS in 2003 as a permanency caseworker. After two years in that position, she became a child protective services (CPS) worker, a position she held until her October 2012 termination. In her position as a CPS worker, Plaintiff investigated reports of child abuse and neglect that came to the attention of DHS. One of her primary functions was to prepare juvenile court cases and make recommendations for juvenile court disposition. The purpose of the work was to determine whether a child was safe in his [1214]*1214or her home or should be removed from the home. If a child was not safe in his or her home, Plaintiff would develop a plan to ensure the child’s safety. She and the District Attorney’s Office would typically jointly file a juvenile petition for protective custody.

According to Plaintiff, although less than ten-percent of her cases went to court, every case had the potential to end up in court and every case was prepared as if it would. PI. Dep. at 39, 40 (Ex. A to Abrams Decl.). In cases where Plaintiff herself did not file a juvenile petition to start a case, the District Attorney’s Office or law enforcement could still subpoena her records. Id. at 41. Plaintiff found herself in court six to eight times per month. Id. at 53. Plaintiff regularly worked with the Polk County District Attorney’s Office and the Oregon Department of Justice (DOJ) on cases. Id. at 43. The person she worked most closely with at the Polk County District Attorney’s Office was Deputy District Attorney Max Wall. Id. At the DOJ, she worked with Senior Assistant Attorney General Brian Raymer. Id.

Plaintiff acknowledged that her job was “to be a neutral appraiser of the settings in which the children live[.]” Id. at 40. In working on dependency cases, she was not supposed to consider the employment status, religious beliefs, or political beliefs of the adults in the home, or concern herself with how they chose to spend money or furnish their home. Id. at 50-52. Plaintiff knew that a majority of parents being assessed by DHS were on Temporary Assistance to Needy Families (TANF), food stamps, and/or the Oregon Health Plan. Id. at 57.

While working at DHS, Plaintiff had a Facebook page. On that page, she identified herself as a “Child Protective Services Case Worker at Department of Human Services.” Id. at 60-61; Ex. C to Abrams Decl. Plaintiff’s Facebook page contained no general disclaimer that any content on the page was her opinion and not that of DHS and she never added such a disclaimer to any particular post. Id. at 61, 62. Plaintiff had hundreds of Facebook friends who had access to all of the content Plaintiff posted on her Facebook page. Id. at 60-61. Her Facebook friends included a Polk County Circuit Court Judge, at least three deputy district attorneys, several defense attorneys, and over a dozen law enforcement officers. Id. at 63, 64-67.

While working at DHS, Plaintiff posted the following comment to her Facebook page: “So today I noticed a Self-Sufficiency client getting into a newer BMW. What am I doing wrong here? I think I need to quit my job and get on TANF.” Ex. C to Abrams Decl. Several of Plaintiffs Face-book friends made comments in response to the post and Plaintiff herself added the following two comments as well: (1) “Almost every client home I go into has a gigantic flat screen tv. I ask how they paid for it, and it’s usually with their tax returns .... yet they don’t pay taxes!”; and (2) “You should let me know when you send people to jail and I can get their ‘benefits’ turned off.” Id.

In another post, she stated:

I was listening to the radio and they were making up rules for society. Here are my rules: (1) If you are on public assistance, you may not have additional children and must be on reliable birth control (e.g. an IUD), (2) If you’ve had your parental rights terminated by DHS, you may not have more children .... it’s sterilization for you buddy! (3) If you are on public assistance and don’t pay taxes, you shouldn’t get taxes back from that child tax credit[,] (4) If you are on public assistance, you may not own a big flat screen television, (5) If [1215]*1215you receive food stamps, you should be limited on what you may purchase (no more ribeye steaks, candy, soda, chips, etc), (6) If you physically abuse your child, someone should physically abuse you, (7) I should be president so I can make up more rules, (8) If you don’t like my rules, too bad. I have a Ph.D. and you don’t so I get to make up my own imaginary rules.

Ex. A to Abrams Deck at 44 (PI. Dep. Ex. 8).

Plaintiff also added comments in response to comments posted by her Face-book Mends including “[o]h, and you can add to my rules, but if your rule sucks then I reserve the right to veto it[,]” and “[w]orking at DHS broke me of my liberal ideals from college. Go fígure[.]” Id. Plaintiffs posts were seen by Plaintiffs Facebook friends, including defense attorney Mingo Vidrio and Polk County Circuit Court Judge Fred Avera. PI. Dep. at 136. Plaintiff made the posts in June and July 2012. See Ex. A to Abrams Deck at 66 (termination letter describing posts).

A DHS manager in Polk County forwarded a packet of information, including Plaintiffs Facebook posts, to McGee. McGee Dep. at 33 (Ex. B to Abrams Deck). McGee thought the posts reflected Plaintiffs opinions and he did not find them to be “humorous” or “ironic.” Id. at 34-35. He believed that the “rules for society” post showed bias on Plaintiffs part that she was supposed to be putting aside. Id. at 37-38.

On August 1, 2012 DHS held a fact-finding meeting with Plaintiff and a union representative. Ex. A to Abrams Deck at 67. A DHS Human Resources Analyst, Supervisor, and Program Manager also attended. Id. During the meeting, Plaintiff confirmed that she held some of the beliefs she had written in the Facebook posts and that there was no way of telling from the Facebook posts what she believed and what she did not. PI. Dep. at 83-84. She also admitted in that meeting that she would have a hard time testifying and explaining her objectivity. Id.

Plaintiff was placed on administrative leave. Ph Dep. at 144. While she was on leave, DHS spoke with Wall and Raymer about Plaintiffs Facebook posts. Ex. A to Abrams Deck at 71; Wall Deck at ¶2; Raymer Deck at ¶ 6. Wall states that he was asked his opinion as to whether the Facebook posts were discoverable material. Wall Deck ¶ 4. He explained that he thought the content was subject to discovery to opposing counsel and because they were broad statements, not defined to a specific case, he would need to disclose the content to opposing counsel in every dependency hearing involving physical abuse. Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

MacRae v. Mattos
D. Massachusetts, 2023
Sabatini v. Las Vegas Metro. Police Dep't
369 F. Supp. 3d 1066 (D. Nevada, 2019)
Graziosi v. City of Greenville
985 F. Supp. 2d 808 (N.D. Mississippi, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
986 F. Supp. 2d 1211, 37 I.E.R. Cas. (BNA) 148, 2013 WL 5963076, 2013 U.S. Dist. LEXIS 159432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shepherd-v-mcgee-ord-2013.