Addison v. City of Baker City (258 F. Supp. 3d 1207, 2017)

OPINION AND ORDER

Michael H. Simon, United States District Judge

Plaintiff Brian Addison (“Addison”) brings this action against Wyn Lohner (“Lohner”), the Police Chief for the City of Baker City (“Baker City”), in his official and personal capacities, and Baker City, an Oregon municipality (collectively, “Defendants”). Addison asserts the following claims: (1) First Amendment retaliation under 42 U.S.C. § 1983 (“§ 1983”), against Lohner; (2) supervisory liability for First Amendment retaliation under § 1983, against Lohner; (3) municipal liability for First Amendment retaliation under § 1983, against Baker City; (4) intentional interference with economic relations, against Baker City and, in the alternative, against Lohner; (5) defamation, against Baker City and, in the alternative, against Lohner; (6) deprivation of federal procedural due process under § 1983, against both Defendants; and (7) deprivation of federal substantive due process under § 1983, against both Defendants. Before the Court are: (1) Defendants’ motion for summary judgment against all claims asserted by Addison; and (2) Addison’s cross motion for partial summary judgment against Defendants’ Second, Third, Seventh, Tenth, Eighteenth, and Twentieth Affirmative Defenses. For the reasons stated below, Defendants’ motion for summary judgment is granted in part and denied in part, and Addison’s motion for partial summary judgment is granted.

STANDARDS

A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-miovant’s favor. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of the plaintiff’s position [is] insufficient....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and quotation marks omitted).

When parties file cross-motions for summary judgment, the court “evaluate[s] each motion separately, giving the non-moving party in each, instance the benefit of all reasonable inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006) (quotation marks and citation omitted); see also Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 674 (9th Cir. 2010) (“Cross-motions t for summary judgment are evaluated separately under [the] same standard.”). In evaluating the motions, “the court must consider each party’s evidence, regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir. 2011). “Where the non-moving party bears the burden of proof at trial, the moying party need only prove that there is an absence of evidence to support the non-moving party’s, case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the non-moving party bears the burden of designating “specific facts demonstrating the existence of genuine issues for trial.” Id. “This burden is not a light one.” Id. The Supreme Court has directed that in such a situation, the non-moving party must do more than raise a “metaphysical doubt” as to the material facts at issue. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348.

BACKGROUND

From 2006 to 2008, Addison worked as a reporter at the Record-Courier, a newspaper in Baker City. On March 6, 2008, Addison wrote an editorial published in the Record-Courier titled “How About a Favorable Interpretation of the 4th Amendment.” ECF 52-2 at 17. In this editorial, Addison commented on the “weakening” of the Fourth- Amendment, particularly through the official use by the police of canine units. In the, editorial, Addison wrote that the Baker City Police Canine Drug Enforcement Unit “patrolled” the Baker City High School gymnasium during half time of a-high-school basketball tournament, in what Addison stated' was a violation of -the basketball game attendees’ rights under the Fourth Amendment.

The Baker City Police Chief, Lohner, read the editorial and was upset that the community might think the Baker City Police Department (“BCPD”) was using its new canine unit to violate people’s constitutional rights. Lohner telephoned the publisher of the Record-Courier, Debbie Schoeningh, to express his displeasure with the editorial. Although the" parties dispute whether Lohner demanded a meeting or Schoeningh suggested one, it is undisputed that after the editorial was published, Lohher met with Schoeningh and Addison. At this meeting, Lohner expressed his disagreement with the conclusion that the BCPD violated the Fourth Amendment.' He also threatened to stop providing weekly articles to the newspaper and questioned the integrity of the newspaper for publishing the editorial.

On June 5,. 2008, the Recordr-Courier fired Addison. At the time of his termination, Addison argued with Greg Brinton (“Brinton”), the ' owner, of the Recordr-Courier. Addison also went to the workplace of Brinton’s wife, Patricia Brinton, to discuss Addison’s termination with her because she recently had been involved in a personnel decision at the newspaper involving Addison. Patricia Brinton was not in the office at the time of Addison’s visit, Addison also tore a. book that Schoeningh had given him, put it in a plastic bag, and hung it on the rearview mirror of Schoe-ningh’s car. On June 6, 2008, Addison returned to" the Recordr-Courier offices, perhaps to retrieve his final paycheck. The parties dispute Addison’s demeanor on both June 5th and June 6th and whether he banged on the doors and raised his voice.

On June 6, the police were called. At the suggestion of Baker City Officer Wayne Chastain, that officer issued a stalking complaint against Addison, Officer Chas-tain also was the police officer who had brought the canine unit to the high school gymnasium that was the subject of Addison’s editorial on March 6, 2008.

On or about June 11, 2016, the state court held a hearing on the stalking complaint filed against Addison. Brinton testified that he did not feel threatened by Addison. Schoeningh testified that she did not have anything to add to Brinton’s testimony. The state court judge dismissed the stalking complaint. Schoeningh later testified in her deposition • that she did not recall hearing any threatening language from Addison,

When Lohner heard about the argument involving Addison at the Recordr-Courier, he instructed persons at police dispatch to “flag” Addison’s name as a “caution.” This resulted in a notation placed in Addison’s “file” that he had “made threats” against Brinton and Schoeningh and challenged Brinton to a fight. From that point forward, whenever a police officer would run a check on Addison’s name, the officer would see a warning that Addison has been “flagfged] as caution,” as well as those, details. This caution was not removed after the state court dismissed.the stalking complaint, nor was the fact that the stalking complaint had been dismissed added to the caution’s details. The information continued to appear prominently and in more than one location in Addison’s electronic record as of at least 2016, when his electronic file was retrieved, printed, and produced during this lawsuit.

When a caution appears on a person’s name in the local law enforcement electronic file, a warning flashes “red” on the dispatch screen. According to Baker City’s corporate designee at deposition, this warning is used if someone is “a threat, that could hurt a- police officer who didn’t know the history of the person.” ECF 63-2 at 62-63. A review of the BCPD records of persons known to be violent towards police officers, however, shows that those per-' sons were not generally flagged with a caution on their file.

■ Before the' ¡editorial was published, Addison had few interactions with the BCPD. After the editorial was published in March 2008, Addison had significantly increased personal contacts with the Baker City police. These included documented incidents on April 22, 2008, January 8, 2009, May 21, 2009, January 18, 2010, February 14, 2010, March 14, 2010, September 11, 2012, April 25, 2013, May 9, 2013, May 25, 2013, August 3, 2013, September 2, 2013, September 18, 2013, June 1, 2014, and June 7, 2014, most of which resulted only in “warning” tickets being issued to Addison. Addison testified that in addition to the contacts that were documented, there were more undocumented contacts that resulted in informal warnings. ■

In 2010, Addison left Baker City. He returned in 2012. On June 1,2014, Addison had a contact with Baker City- Police- Officer (now Lieutenant) Dustin Newman. The parties dispute the details of that interaction. Lohner testified that at the time, Officer Newman reported that he “had a guy go completely off on-me” at a traffic stop, and Officer Newman identified that “guy” as Addison. Newman also submitted a declaration, describing the traffic stop and stating that Addison was swearing and yelling, even though Newman had- only given Addison a “warning” ticket. Addison testified that he did not lose his temper or yell at Newman during the traffic stop.

At the time when Officer Newman stopped Addison, Addison was working as a reporter for the Baker County Press. The publisher of that newspaper was Kerry McQuisten, who knows Lohner. On June 2, 2014, the day after the traffic stop, Lohner emailed McQuisten and asked her to meet with him so he could tell her about an “incident” that occurred. In an email on June 3, 2014, Lohner explained to McQuis-ten that the incident involved Addison being stopped by a police officer and “it didn’t go well.” -Lohner testified in deposition that when he and McQuisten met, he described the traffic incident as it was reported , to him by Officer Newman. Loh-ner stated that he conveyed this information to Addison’s private employer at the time because Lohner believed it was an issue of “community safety.”

In August 2014, New Directions Behavioral Health and Wellness (“New Directions”) hired Addison, who has a degree in psychology. On November. 3, 2014, Addison gave an interview to the Baker City Herald about his work with New Directions, its “supported employment program” for its clients, and Addison’s efforts to encourage participation by more employers. Addison also described a speech that he gave at a Baker City Council meeting. On November 10, 2014, the Herald published an article about New Directions based on Addison’s interview..

Addison spoke with the Herald without anyone else present from New Directions. Addison believed that would not be a problem. Sheri Selander, the CEO of New Directions, however, believed that she had made it clear to Addison that she had to be present for the interview and believed that Addison was directly insubordinate by handling the ’interview alone. Selander wanted to read the article before deciding on how to handle Addison’s insubordination. On November 12, 2014, two days after the article was published in the Herald, New Directions placed Addison on a 30-day work plan. Under the terms of this plan, there were supervisor meetings scheduled for each Monday, starting November 17, 2014. The plan also noted that:

You [Addison] are a valued member of our Treatment Team and you bring many assets to our program. It is our belief that you are committed to this program and want to do the best job possible. Therefore, it is the intent of this Plan, to specifically state what is expected of you, so that you use it as a tool in order to improve your skills and remain within the scope of service you are to provide.

ECF 63-1 at 75. The plan further stated that it could be extended, as needed. At the time Addison was given the 30-day work plan, Addison was told that his employment would continue during the 30-day plan period, as long as Addison remained in compliance with the terms of the work plan. Addison’s supervisor testified that she does not recall that Addison did anything to violate the terms of his work plan before he was terminated two days later on November 14,2014.

Lohner also saw the November 10, 2014 article and learned that Addison was working at New Directions. Lohner testified that he “had a concern for the vulnerable population that [Addison] would work with.” Thus, after reading the article, at approximately 3:10 p.m. on November 12, Lohner sent an email to Marji Lind, the Clinical Director for New Directions. Loh-ner served on a mental health advisory board with Lind. Lohner’s email stated: “I saw one of your recent hires and was curious if you do internal background investigations or if you hire them out?” ECF 49 at 26. On November 13, 2014, at approximately 7:34 a.m., Lind responded that New Directions obtains internal background checks, including Department of Homeland Security checks. She then asked: “[Something we should know? ? ?” Id. at 27. Lohner responded at approximately 7:50 a.m., “Give me a call ...” ECF 52-2 at 33 (ellipses in original).

Telephone records show that Lind and Lohner spoke twice on November 13. The first call began at approximately 8:32 a.m., forty minutes after Lohner sent his email. That call lasted five minutes. The second call began at 1:39 p.m. and lasted seven minutes. Lohner and Lind gave conflicting testimony regarding the content of those two telephone calls, and Lohner testified that he does not even recall having the second conversation with Lind.

According to Lohner, he warned Lind that Addison had “mood swings” and described the “caution” that Lohner had placed in Addison’s local law enforcement file. Lohner also informed Lind that Addison had an incident with a former employer that “did not go well.” Lohner discussed with Lind Addison’s volatile traffic stop with Officer Newman. Lohner admits, however, that he did not inform Lind that the state court had dismissed the stalking complaint that had been filed against Addison relating to the incident with the former employer Lohner had described. Loh-ner also suggested to Lind that employers generally can do a “local records check” on a new hire to “see what types of contacts or what types of interactions” the new hire may have “had in the community specifically with the police or with the sheriffs office.” ECF 53-1 at 34-37. Lohner states that he did not explicitly suggest that Lind look up Addison’s local report.

Lind, on the other hand, testified that Addison’s name never came up during her telephone conversations with Lohner on November 13. ECF 50 at 53. She testified that, in response to her conversation with Lohner, she contacted Karen Hendricks in the Human Resources department of New Directions. Lind said that she asked Hendricks about changing company policy generally in order to obtain local sheriffs office reports on all new hires. She adds that she discussed several employees with Hendricks and that “possibly” Addison’s name came up in that context. ECF 63-1 at 58-59. Hendricks, however, testified that it was Selander, not Lind, who spoke with her on November 13 and that Selander instructed Hendricks to obtain a report about Addison from the local sheriffs office because “[t]here might be something of concern.” ECF 63-1 at 20-21. At that time, there was no discussion about changing New Directions’ policy to obtain these types of background reports on all new hires. Id. at 22. There also was no discussion about any other employee — the focus was solely on Addison. For purposes of deciding Defendants’ motion for summary judgment, the Court views the'facts in the light most favorable to Addison, and Considers the recitation of these events as described by Lohner and Hendricks, and not as described by Lind.

On the morning after Lohner and Lind’s telephone conversations, Hendricks obtained the local law enforcement file on Addison from Baker County Consolidated Dispatch (“BCCD”). ECF 52-2 at 35-41. This file included Addison’s two-page “Fact File” and five-page “Incident Report” relating to Addison’s 2008 stalking complaint. The Court refers to the combined file as the “Seven-Rage File.”

The Fact File on Addison obtained by New Directions was missing information that local law enforcement “fact files” generated from BCCD generally contain, including that the police-issued stalking complaint was only valid for four days, through June 10, 2008. Compare ECF 49 at 15-16 (Addison’s Fact File obtained by New Directions) with ECF 52-2 at 18-20 (Addison’s Fact File obtained from BCCD by subpoena). It also did not contain information that the state court had long ago dismissed the stalking complaint. A few hours later, New Directions terminated Addison’s employment.

BCCD acts as the records custodian for both the Baker County Sheriffs Office and the BCPD. Margaret Sáckos at BCCD was in' charge of records during the relevant period. She testified that a general “overview” fact file report from BCCD costs $10 and a detailed “incident” report, such as the Incident Report on the 2008 stalking complaint, requires a separate request and an additional $17 fee. When such files are requested, all fees are recorded in BCCD’s receipt book.

The parties dispute whether BCPD was involved in providing Addison’s Seven-Page File to New Directions. Hendricks testified that she paid only $10, but yet' she received both Addison’s overview Fact File and the Incident Report on the 2008 stalking complaint. See ECF 49 at 15-21. Additionally, Sackos testified that she and her co-worker, April Bower, are the only two employees at BCCD who provide fact files and incident reports and that neither of them provided Addison’s Seven-Page File to anyone at New Directions. Sackos also testified that the format of Addison’s Fact File that New Directions obtained was different from the format of fact files the BCCD generates and provides. Sackos also could not explain why certain information was included on the Fact File that New Directions had, while other information was not included. In short, Sackos did not know where the Seven-Page File that New-Directions received came from, but it did not appear to be from BCCD. In addition, the BCCD receipt book does not contain any record that New Directions — or anyone else for that matter — had requested Addison’s Seven-Page File in November 2014. Moreover, an independent contractor who designed both the dispatch software and the templates used by BCCD to generate fact files, and other reports based-on BCCD data, testified that it appears to him that the Seven-Page File obtained by New Directions was, in fact, generated at the BCPD, and not at the BCCD.

Lohner testified at deposition that he has concerns about Addison working with “vulnerable populations.” Lohner also testified that he intends to continue to make similar calls to Addison’s future employers. Lohner, however, could not recall ever making any calls to any other employer in a similar situation involving anyone other than Addison. Lohner added that he did recall a time when he contacted an employer after a forklift driver was pulled over for driving under the influence on his way to work, explaining that Lohner did not wqnt a person under the influence operating a forklift.

DISCUSSION

A. Defendants’ Motion For Summary Judgment

Defendants move against all seven claims asserted by Addison. The Court addresses each claim in turn.

1. First Claim: First Amendment Retaliation, against Lohner

To prevail on his claim for First Amendment retaliation, . Addison must prove that:

(1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action.

Mulligan v. Nichols, 835 F.3d 983, 988 (9th Cir. 2016) (quotation marks omitted).

Defendants do not dispute that Addison engaged in constitutionally-protected activity, nor do they appear to dispute at this stage that there is at least a genuine issue of material fact regarding whether there is a causal relationship between Addison’s protected speech and Lohner’s challenged conduct. Instead, Defendants argue that Addison was not subjected to adverse action, as that term is used in the context of a claim of First Amendment retaliation. In support of this conclusion, Defendants argue: (1) Lohner’s conduct itself was protected speech and is therefore subject to a “high bar” in order to be considered adverse action, and because Lohner’s activity was lawful, it does not meet that high bar; and (2) Addison was not deprived of a government job or benefit. Defendants also argue that Lohner is protected under the doctrine of qualified immunity.

a. Adverse action

Defendants rely on Mulligan and an out-of-circuit case to argue that Lohner’s actions cannot, constitute First Amendment retaliation, Mulligan, however, does not show that Addison’s claim is foreclosed as a matter of law. In Mulligan, the Ninth Circuit stated:

Retaliation claims involving government speech warrant a cautious approach by courts. Restricting the ability of government decisionmakers to engage in speech .risks interfering with their ability to effectively perform their duties. It also ignores the competing First Amendment rights of the officials themselves .... In accordance with these principles, we have set a high bar when analyzing whether speech by government officials is sufficiently adverse to give rise to a First Amendment retaliation claim.

Mulligan, 835 F.3d at 989.

Mulligan involved -a plaintiff who had filed an administrative claim against certain police officers alleging that the officers had acted unlawfully. Id, at 986. In response, the police officers’ union made public statements accusing the plaintiff of being a drug abuser and having acted aggressively against the officers. Id. As the Ninth Circuit explained, the issue in Mulligan was. whether the.First Amendment protection of citizens against government retaliation for speech “also requires those officials to remain silent when accused of misconduct, lest they risk liability for unlawful retaliation. We conclude that it does not.” Id. (emphasis added). That is not the situation here.

The alleged retaliatory speech by Lohner in this case was not his public response to a claim by Addison of official misconduct. Instead, Lohner spoke privately with two of Addison’s employers about Addison. Lohner states that his purpose for having those private conversations was based on his general concern for com.-munity safety. At his deposition, however, Lohner could not recall ever calling another employer under similar circumstances. The only other instance of calling an employer Lohner could recall was calling the employer of the forklift operator on the same day that the forklift operator was pulled over for driving an automobile under the influence while on his way to work. New Directions terminated Addison’s employment shortly after Lind spoke with Lohner about Addison.

A reasonable inference from the facts in this case is that Lohner’s objective in making private comments about Addison to his employers was to. punish Addison for his past criticism of Defendants. In contrast, in Mulligan the defendants publicly responded to accusations against the police officers made by the plaintiff in a filed complaint. The loss of the plaintiffs job in Mulligan was only an incidental consequence of the media coverage of the entire dispute. Additionally, unlike Lohner in the present case, the defendants in Mulligan did not speak directly to the plaintiffs employer. In Mulligan, the plaintiffs em-. ployer learned of the information only .through, media coverage of the public dispute.- Thus, the. facts of the pending case are quite different from the facts in Mulligan, and the issues here do not fall within the Ninth Circuit’s response in Mulligan to the question of whether a government employee must remain silent when accused of official misconduct.

The question remains, however, whether First Amendment retaliation can ever be based upon the adverse consequence of a plaintiffs employment being terminated by a private employer. The Ninth Circuit noted in Mulligan that “[ordinarily, the adverse retaliatory actions complained of by plaintiffs are ‘exercise[s] of governmental 'power that are regulatory, proscriptive, or compulsory in nature and have the effect of punishing someone for his or her speech.’ ” Id. at 988 (emphasis added) (second alteration in original) (quoting Blair v. Bethel Sch. Dist., 608 F.3d 540, 544 (9th Cir. 2010)). Generally,, a defendant must “make [a] decision or take [a] state action affecting [the plaintiffs] rights, benefits,, relationship or status with the state” or the plaintiff must show “the loss of a valuable governmental benefit or privilege.” Id. - at 989 (quotation marks omitted). The Ninth Circuit clarified, however, that its precedents do not “stand for the proposition that speech by government officials can never give rise to a claim of First Amendment retaliation in the absence of a loss of tangible rights or government benefits.” Id. at 989 n.5 (emphasis in original) (citing Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003) and White v. Lee, 227 F.3d 1214 (9th Cir. 2000)).

In Coszalter v. City of Salem, the Ninth Circuit held that there is not “an exclusive, category-based limitation on the kind of retaliatory action that is actionable under the First Amendment,” and that case does not allow the government “to take severe retaliatory actions — such as .engaging in campaigns of harassment and humiliation — because those actions do not result in the loss of a valuable governmental benefit or privilege.” 320 F.3d at 975-76. Indeed, the Ninth Circuit has recognized that “[i]nformal measures, such as ‘the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation,’ can violate the First Amendment also.” White, 227 F.3d at 1228 (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963)).

.Viewing the facts in the light most favorable to Addison, Lohner called a representative of Addison’s private employer, Lind, and discussed Addison’s private and confidential information. Lohner warned Lind of Addison’s “mood swings,” described the “caution” flag that Lohner had placed in Addison’s Fact File, informed Lind that Addison had an “incident” with a former employer, without mentioning that the stalking complaint had been dismissed by the state court,' described Addison’s purported “erratic” behavior during a traffic stop as relayed to Lohner from another police officer, and noted that there are records relating to local incidents at the sheriffs office. Although Lohner did not direct Lind to get’the Seven-Page File on Addison, Lohner described that there was an interaction'with Addison and his former employer that “did not go well,” and Loh-ner informed Lind that there were records that she could get on this issue.

Lohner also discussed similarly private information with McQuisten, a representative from another of Addison’s former employers. There also is evidence that the BCPD may have been involved in providing the Seven-Page File on Addison to his then-employer, New Directions, which contained allegedly misleading negative information about Addison. This evidence is sufficient to create genuine issues of material fact regarding (1) whether Lohner engaged in retaliatory conduct against Addison; and (2) whether a person of ordinary firmness would be chilled from continuing to engage in protected activity. In 'short, it is sufficient to create a jury question on the issue of adverse action.

b. Causal connection

Although Defendants do not directly argue against there being sufficient evidence of a causal connection between Addison’s protected speech and Lohner’s alleged retaliation, Defendants indirectly make such an argument. Accordingly, the Court will address this element. Addison’s alleged protected activity was the editorial that he wrote for the Record-Courier in 2008, criticizing Baker City’s police department. The alleged retaliatory conduct began shortly 'thereafter, but only conduct from October 29, 2013, is within the statute of limitations for this claim, and the primary retaliatory conduct alleged is Lohner’s communications with Addison’s private employers in June and November, 2014;

The Ninth Circuit has described three ways. in which a plaintiff can show the requisite causal connection for First Amendment retaliation: (1) the proximity in time between the protected conduct and the retaliatory conduct; (2) expressed opposition by the alleged retaliatory actor; or (3) evidence that the proffered explanations are false and pretextual. Coszalter, 320 F.3d at 977. Addison has provided evidence of both expressed opposition and pretext.

Lohner went to the Record-Courier's office in 2008 after the editorial was published to express his opposition and demand a retraction. No retraction was given. Lohner remains offended by Addison’s editorial. Thus, Lohner has expressed opposition to the 2008 editorial.

In addition, viewing the facts in the light most favorable to the non-moving party, •Addison presents sufficient evidence to raise a genuine issue of. material fact regarding whether Lohner’s proffered explanation that his communications in 2014 with Addison’s employers were motivated only by a concern- for community safety is false or pretextual; Lohner contacted two of Addison’s employers, one of which did not involve Addison working with “vulnerable” populations. Additionally, before the Record-Courier published Addison?s editorial in 2008, Addison had minimal contact with the BCPD. After the editorial was published, however, Addison was pulled over in traffic stops numerous times and was issued numerous “warnings.” Lohner also placed a caution flag on Addison’s Fact File, purportedly because he was concerned for the safety of Schoeningh, even though both Brinton and Schoeningh testified that Addison did not threaten them. Lohner, however, did not place caution flags on the fact files of other persons known to him to be potentially violent toward police officers. Furthermore, Addison’s caution flag was never .updated after the stalking citation was dismissed, even though the BCPD .knew that the stalking citation was valid for only four days. Addison also presented evidence that another person who had been convicted of harassing Lohner. and had a no contact order in place to protect Lohner, had her record updated when that no contact order was lifted. Yet Addison’s record was not similarly updated.

Lohnér testified that he did not know that the stalking citation had been dismissed until this lawsuit. But viewing the facts in the light most favorable to Addison, such testimony may support a finding of pretext. The evidence shows that when Lohner decided to discuss the stalking incident with Addison’s private employers six years after it occurred, knowing that police-issued stalking complaints are only valid for a few days, Lohner did not check on the disposition of the stalking complaint before disclosing its existence to ensure that he was not providing a “half-truth” or misleading information.

c. Qualified immunity

“Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). “Whether qualified immunity can be invoked turns on the ‘objective- legal reasonableness’ of the official’s acts. And reasonableness of 'official action, in turn, must be ‘assessed in light of the legal rules that were clearly established at the time [the action] was taken.’ ” Ziglar v. Abbasi, — U.S. -, 137 S.Ct. 1843, 1865, 198 L.Ed.2d 290 (2017) (citation omitted) (alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) and Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). “The. privilege is on-immunity from suit rather than a mere-defense to liability; ... it is effectively lost if a case is erroneously permitted to go to trial.” Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quotation marks omitted) (emphasis in original). For this reason, the Court has “stressed the importance of resolving .immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam).

In Saucier, the Supreme Court outlined a two-step process for determining the applicability of the qualified immunity doctrine. 533 U.S. at 200, 121 S.Ct. 2151. The first step is to determine “whether a constitutional right would have been violated on the facts' alleged.” Id. The second step is to determine “whether the right was clearly established.” Id. The constitutional issue, however, need not be addressed first in every case. Pearson, 555 U.S. at 227, 129 S.Ct. 808. When considering whether qualified immunity applies, the court must resolve all factual disputes in favor of .the party asserting the injury. Ellins v. City of Sierra Madre, 710 F.3d 1049, 1064 (9th Cir. 2013).

i. Constitutional right

As previously discussed, Addison has identified sufficient evidence to ci*eate a genuine issue of material fact as to whether he suffered an adverse action and whether.there was a sufficient causal connection between his protected speech and the alleged' adverse action. Defendants do not dispute that Addison, engaged in protected speech. Thus, a reasonable jury could find that Addison’s First Amendment rights have been violated.

ii. Clearly established

To determine whether'a government official’s conduct violates clearly established law, “a court must ask whether it would have been clear tó a reasonable officer that the alleged conduct was unlawful in the situation he confronted.”' Ziglar, 137 S.Ct. at 1866. To be cleárly established, '“[i]t is not necessary ,.. that the very action in question has previously been held unlawful.” That is, an officer might lose qualified immunity even if there is no reported case directly on point. But in the light of pre-existing law, the unlawfulness of the officer’s conduct must be apparent. Id. (citations and quotation marks omitted). “The ‘clearly established’ requirement ‘operates to ensure that before they are subject to suit, [government officials] are on notice their conduct is unlawful.’ ” Eng v. Cooley, 552 F.3d 1062, 1075 (9th Cir. 2009) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)) (alteration in original).. Thus, the key inquiry in determining whether an officer has qualified immunity is whether the officer had “fair warning” that his conduct was unconstitutional. Hope, 536 U.S. at 741, 122 S.Ct. 2508;. see also Saucier, 533 U.S. at 202, 121 S.Ct. 2151 (noting that the law need not be a “precise formulation of the standard” as long as “various courts have agreed that certain conduct is a constitutional violation under facts, not distinguishable in a fair way from the facts presented in the case at hand”); Ellins, 710 F.3d at 1064 (“Rather, the. relevant question is whether ‘the state of-the law at the time gives officials fair warning that their conduct is unconstitutional.’ ” (quoting Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 1003 (9th Cir. 2010) (en banc) (“[T]he specific facts of previous cases need not be materially or fundamentally similar to the situation in question.”)))- ■

The First Amendment right of persons to be free from retaliation from police officers for speech is well established. “Police officers have been on notice at least since 1990 that it is unlawful to use their authority to retaliate against individuals for their protected speech.” Ford v. City of Yakima, 706 F.3d 1188, 1195 (9th Cir. 2013); The fact that severe retaliatory conduct — such as harassment and humiliation or intimidation — and the loss of-something other than a governmental right or benefit could support such a claim has been established at least since the Ninth Circuit’s' 2003 decision in Coszalter, Thus, Addison’s First Amendment right to be free from retaliation for constitutionally protected speech was clearly established at the time of the alleged violation. Taking the facts in the light most favorable to the non-moving party, a reasonable fact-finder could conclude that Lohner violated Addison’s clearly established constitutional right by taking adverse action agairist him in retaliation for Addison’s constitutionally protected speech.

d. Conclusion

The Court denies Defendants’ motion for summary judgment against Addison’s claim for First Amendment retaliation. The Court further rejects Defendants’ argument that Lohner is entitled to qualified immunity. .

2. Second Claim: Supérvisory Liability, against Lohner

Supervisor liability under § 1983 changed after Iqbal v. Twombly. See OSU Student All. v. Ray, 699 F.3d 1053, 1071-74 (9th Cir. 2012). Instead of a general test to determine whether the supervisor acted with deliberate indifference, courts must now look at the requisite .mental state for the specific constitutional violation alleged. Id. at 1071-72. Where the supervisor acts directly, then there is specific intent, which generally suffices. Id. at 1073. For claims of speech violations under the / First and Fourteenth Amendments, the Ninth Circuit has held that knowledge and acquiescence also suffices for supervisor liability. Id. at 1075.

Defendants argue that Addison’s claim for supervisor liability under § 1983 must be dismissed because it is “undisputed” that at no time has Lohner ever directed any police officer to stop Addison, harass Addison, or retaliate against Addison, or to provide any materials concerning Addison to New Directions. Defendants’ use of the term “undisputed” is inaccurate; Addison disputes these contentions and offers evidence from which a reasonable jury could infer'otherwise.

Addison’s record with the Baker City Police shows that from 2004 to 2008 there were no traffic stops, warnings, or citations. After 2008 (when the editorial was published), there are many entries, and Addison testified that- there were even more encounters with police after 2008 than those that are documented in his file. Addison also provides contradicting testimony describing his purported behavior during the June 2014 stop with Officer Newman, which is the traffic stop that Lohner described to Addison’s employers. This is evidence from which a jury could infer that the BCPD. began harassing Addison only after his 2008 editorial was published.

Additionally, Addison presents evidence relating to the- Seven-Page File that was provided to his employer, New Directions, in November 2014, That evidence calls into question whether it originated from, the BCPD, instead of the BCCD. The origination of this file, thus, presents a genuine dispute of material fact.

' Regarding'Lohner’s involvement in this alleged pattern of harassment, it is Lohner who went to the newspaper offices expressing outrage at the editorial and questioning the integrity of the newspaper for publishing it, received at least two reports from his subordinates regarding interactions with Addison ' (the 2008 Chastain stalking citation and 2014 Newman traffic stop), put the “caution” flag on Addison’s Fact File, never updated the caution flag, called two of Addison’s employers to raise concerns regarding Addison, including discussing the 2008 stalking complaint without checking the disposition of the complaint, and has stated that he will continue to call Addison’s future employers. A reasonable jury could infer, from this evidence that it is Lohner who is most disturbed with Addison and is engaging in behavior to get back at Addison. This is sufficient evidence to raise an issue of fact that Lohner was personally involved in alleged retaliation against Addison. It is also evidence that is sufficient to raise an issue of fact as to whether Lohner knew about the alleged retaliation by his subordinates and acquiesced in it. Although much of the conduct occurred outside of the statute of limitations period, and is therefore relevant only to motive, pattern and practice, background, or context, there is conduct within the statute of limitations supporting Addison’s claims. That conduct includes Lohner’s discussion with McQuisten, Loh-ner’s discussions with Lind, some of the police encounters and warning tickets, Lohner’s testimony that he will continue to call future employers, and the compilation and delivery of the Seven-Page File on Addison.

Defendants also argue that Lohner is subject to qualified immunity for this claim, for the same reasons discussed in connection with Addison’s first claim. The Court rejects this argument for the same reasons it rejected Defendants’ argument in Addison’s first claim.

3. Third Claim: Municipal Liability, against Baker City

Against Addison’s third claim, Defendants argue only that Baker City cannot be held liable for Lohner’s First Amendment retaliation because Lohner is not liable. Defendants rely exclusively on their arguments challenging Addison’s First Amendment retaliation claims brought against Lohner. Defendants offer no other argument why Baker City should not be liable under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because the Court denies Defendants’ motions against Addison’s First Amendment retaliation claims against Lohner, the Court denies Defendants’ motion against Addison’s third claim.

4. Fourth Claim: Intentional Interference with Economic Relations

Addison brings this claim in the alternative — Count One against Baker City, if Lohner was acting in the course and scope of his duties, and Count Two against Loh-ner personally, if he was not. Baker City and Lohner admitted in their Answer to Plaintiffs Second Amended Complaint that Lohner was acting at all material times in the course and scope of employment. ECF 45 at 2 (¶ 3). Additionally, at oral argument the parties stipulated that Lohner was, at all times relevant to this lawsuit, acting in the course and scope of his duties. In light of that stipulation, Plaintiff agreed at oral argument that his alternative claim against Lohner personally, Claim Four, Count Two, should be dismissed (although Plaintiff reserved his right to dispute issues of immunity and privilege). Accordingly, Defendants’ motion for summary judgment is granted against Claim Four, Count Two, Addison’s alternative claim against Lohner personally.

Under Oregon law, to prevail on a claim for intentional interference with economic relations,- a plaintiff must show:

(1) the -existence of a professional or business relationship (which could include, e.g., a contract or a’ prospective economic advantage), (2) intentional interference with that relationship, (3) by a third party, (4) accomplished through improper means or for an improper purpose, (5) a causal effect between the interference and damage to the economic relationship, and (6) damages.

McGanty v. Staudenraus, 321 Or. 532, 535, 901 P.2d 841 (1995).

Defendants do not specifically discuss the elements of this claim or argue that Addison fails to raise a genuine issue of fact relating to any particular element. Instead, Defendants argue that Count One of this claim must be dismissed because: (1) as a matter of law, Lohner • did not retaliate against Addison, citing Mulligan-, (2) none of the statements made by Loh-ner were false or defamatory and all are protected by the First Amendment;. (3) telling someone there are public records available about another person cannot, as a matter of law, amount to commission of the tort of intentional interference with economic relations, ie., there was no improper means or purpose; (4) nothing Lohner said caused the termination of Addison by New Directions because New Directions terminated Addison for insubordination; and (5) the process to terminate Addison by New Directions had already begun before Lohner spoke to Lind. Defendants also argue that Baker City (the only Defendant in this count) is immune from liability because Lohner’s statements were discretionary in nature and made within the course and scope of his employment and that the statements were absolutely privileged under Oregon law.

a. Defendants’ Arguments Attacking the Merits

The Court has already rejected Defendants’ argument that as a matter of law Lohner did not retaliate against Addison. The Court also, as discussed further in Section A.5 below discussing defamation, finds an issue of fact as to whether the City defamed Addison.

The Court also finds unavailing Defendants’ eonclusory statement, offered without any legal authority or other support, that telling a person that there are public records available about another person can never amount to intentional interference with economic relations. First, the evidence shows that Lohner did more than simply direct Lind to public records. Loh-ner discussed Addison’s mood swings, relayed information about the “caution” flag that Lohner had placed on Addison’s file, relayed hearsay concerning the asserted altercation between Addison and Officer Newman, and mentioned the incident regarding Addison’s former employer without disclosing that the stalking complaint had been dismissed by the state court (thereby, arguably stating a “half-truth”).

Moreover, there is some évidence calling into question 'the source of the ’ “public records” file (ie., the Seven-Page File) that New Directions obtained and whether Lohnér and the BCPD was involved in compiling or -providing the Seven-Page File to New Directions. Additionally, New Directions had already performed a background check,, including a Department of Homeland Security background check, on Addison and was satisfied. Without Loh-ner’s involvement, it is unlikely that New Directions' would have sought further background information oil Addison. Defendants offer no authority for the proposition that it can never be actionable under Oregon tort law for a police chief, with the intent to get a private employee fired in retaliation for that employee writing an editorial critical of the police department, to tell that employee’s employer that the employee is essentially unstable and encourage the employer to obtain additional information regarding the employee.

Defendants’ final two arguments challenging the merits of this claim are essentially the same — that New Directions did not terminate Addison’s employment as a result of anything Lohner said, but instead for insubordination. The employees at New Directions testified that Addison’s employment was terminated for insubordination. There is sufficient evidence, however, to raise an issue of fact on this point.

On November 12, 2014, Lohner was placed by New Directions on a 30-day work plan because of his purported insubordination in giving a newspaper interview without his supervisor being present. Under Addison’s work plan, there were supervisor meetings scheduled for each Monday, starting November 17, 2014. Addison’s supervisor testified that she did not remember Addison doing anything between November 12 and November 14 to violate the work plan. On November 13, 2014, however, Lind spoke to Lohner. The next morning, Hendricks obtained Addison’s Seven-Page File. Hendricks and Sel-ander reviewed that file before preparing Addison’s termination paperwork later that day. From this evidence, a reasonable jury could conclude that it was Lohner’s conversation with Lind and the information contained in Addison’s Seven-Page File that was the real reason for New Direction’s decision to terminate Addison’s employment, not the insubordination for which, only two days earlier, Addison had been placed on a 30-day work plan but not terminated.

Moreover, termination is not required to establish a claim for intentional interference with economic relations. See Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 622-23, 733 P.2d 430 (1987) (“Discharge is not a necessary element of this tort. The salient inquiry in any interference claim is whether defendant’s tortious conduct damaged plaintiffs economic or contractual relationship.”). A reasonable jury could conclude that but for Lohner’s interference, New Directions would not have altered its original plan to put Addison on a 30-day-work plan to see if his purported insubordination improved,' versus terminating Addison’s employment on November 14.

b. Governmental Immunity .

Defendants- argue that Baker City is immune from liability because Lohner’s statements were made during the performance of a discretionary function and were made within the course and scope of Loh-ner’s employment. Under the Oregon Tort Claims Act (“OTCA”): .

(6) Every public body and its officers, employees and agents acting within the scope of their employment or duties ... are immune from liability for:

(c) Any claim based upon the performance of or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.

Or. Rev. Stat. § 30.265(6)(e).

Defendants’ argument is unavailing for two reasons. Baker City .asserts that Lohner’s statements were “discretionary in nature.” The Court, however, finds that Lohner’s statements were not made while performing a “discretionary function or duty,” as that term is used in the OTCA. Accordingly, this immunity under the OTCA is not available to Baker City as a matter of law.

The Oregon Supreme Court has explained “discretionary function or duty” as follows:

The legislature did not define the term “discretionary function or duty,” and this court has struggled'with the concept over the years. The result of that struggle, however, is ah extensive body of case law refining the concepts. Briefly, the decision of a governmental official, employee, or body is entitled to discretionary immunity if a governmental person or entity made a policy choice among alternatives, with the authority to make that choice. Discretionary immunity does not apply, however, to “routine decisions made by employees in the course of their day-to-day activities, even though the decision involves a choice among two or more courses of action.”

Westfall v. Oregon Dep’t of Corr., 355 Or. 144, 157, 324 P.3d 440 (2014) (citations omitted); see also Turner v. State, 359 Or. 644, 652, 375 P.3d 508 (2016) (“In a nutshell, government conduct amounts to performance of a ‘discretionary function or duty’ if it ‘is the result of a choice among competing policy considerations, made at the appropriate level of government.’”); McBride v. Magnuson, 282 Or. 433, 436-37, 578 P.2d 1259 (1978) (noting that “not every exercise of judgment and , choice is the exercise of discretion” and that discretion involves “room for policy judgment” made by an official to whom responsibility has been delegated); Timberlake v. Washington Cty., 228 Or.App. 607, 613, 209 P.3d 398 (2009) (“Thus, decisions entitled to immunity are those that involve the exercise of discretion in developing or implementing policy objectives through the assessment of costs and benefits, the evaluation of effectiveness of risks, and the choice among competing goals and, priorities.”).

Lohner did not make a policy choice- among several alternatives. Such decisionmaking

involves the delegated responsibility for “assessment and ranking of the policy objectives explicit or implicit in the statute” and for the 'judgment that one or more of these objectives will be served by a given action, In other words, insofar as an official action involves both the determination -of facts and simple cause- and-effect relationships and also the assessment of costs and benefits, the evaluation of relative effectiveness and risks, and a choice among competing goals and priorities, an-official has “discretion” to the extent that he has been delegated responsibility for the latter kind of value judgment.

McBride, 282 Or. at 437, 578 P.2d 1259 (citation omitted). Instead, Lohner’s decisions privately to speak with Addison’s private employers aré more similar to the types of decisions and actions by police officers and others that Oregon courts have found not to be discretionary — such as not to pursue a motorist, to place a person in protective custody, false arrest, false imprisonment, malicious prosecution, and issuing an arrest warrant without the required sworn affidavit. See id. at 437-38, 578 P.2d 1259 (gathering cases); see also Lowrimore v. Dimmitt, 310 Or. 291, 296, 797 P.2d 1027 (1990).

'Thé statements by Lohner are distinguishable from the statements by the defendant in Munn v. Burks, relied on by Defendants. 19 Or.App. 144, 526 P.2d 1040 (1974). In Munn, the Lane County Sheriff met with the Lane County Board of Commissioners to provide input for the Commissioners’- final recommendation regarding whether to renew the plaintiffs liquor license. Id. at 145, 526 P.2d 1040. The plaintiff sued the Sheriff based on statements he made during that meeting. The Oregon Court of Appeals held that under Oregon’s statutory scheme for liquor licenses, the actions by the Sheriff were discretionary and authorized. Id. at 145-46, 526 P.2d 1040. The opinion is two paragraphs in length, concludes without further discussion that Sheriffs conduct was discretionary, and contains no mention of the phrase “discretionary function or duty” or any analysis of its meaning.

Regardless of whether the Oregon Court of Appeals in Munn meant to analyze the Sheriffs actions under the rubric of a “discretionary function or duty” as that term is used in the OTCA, the decision by the sheriff in Munn is a policy decision, as such decisions have been explained by the Oregon Supreme Court in cases after Munn. The Sheriff had to consider the statutory requirements and policy objectives in allowing liquor licenses, how his comments regarding the plaintiff would affect whether the plaintiffs liquor license should be renewed, and how the plaintiffs renewed license or lack thereof would implicate those policies. Thus, the sheriff had to make a value judgment on what would be the cost and benefits to the community if the plaintiffs liquor license was renewed or not. The Sheriff making his recommendation to the County Commissioners, along with his reasons and knowledge about the plaintiff, was therefore a discretionary function. No such similar policy considerations, however, are present in this case. Baker City, thus, fails to meet its burden of showing that this immunity under the OTCA applies in this case. See Timberlake, 228 Or.App. at 613-14, 209 P.3d 398 (“The burden is on the governmental defendant to establish its immunity.”)

c. Absolute Privilege

Defendants also assert that Loh-ner, as Chief of Police, is absolutely privileged to publish slanderous, false, and defamatory statements about another, as long as such publication is within the scope of his duties. Thus, argue Defendants, because Lohner has absolutely immunity for his allegedly defamatory statements, he is also immune from interfering with the economic relations of Addison by the allegedly improper means of defaming him.

The Oregon Supreme Court has held that an absolute privilege extends to “executive officers of government who maliciously publish defamatory statements in the course of their official duties.” Shearer v. Lambert, 274 Or. 449, 452, 547 P.2d 98 (1976). As noted, this privilege “is available to a defendant only if he publishes the defamatory matter in the performance of his official duties,” which means he must be “required” or “authorized” to publish the defamatory material. Id. at 455, 547 P.2d 98. Lohner does not explain how he was “required” or even “authorized” to communicate with Addison’s private employers regarding Addison. Accordingly, summary judgment is denied with respect to Defendants’ assertion of absolute privilege.

5. Fifth Claim: Defamation

Addison also brings this claim in the alternative — against Baker City, if Lohner was acting in the course and scope of his duties, and against Lohner personally, if he was not. As with Addison’s intentional interference claim, because of the parties’ stipulation at oral argument and Defendants’ admission in their answer that Loh-ner was acting in the course and scope of employment, Defendants’ motion for summary judgment against Addison’s alternative claim, Claim Five, Count Two, against Lohner personally is granted.

In challenging the defamation claim against Baker City, Defendants make many of the same arguments and assertions that the Court has already rejected, including: (1) all of Lohner’s statements were protected by the First Amendment pursuant to Mulligan; (2) Defendants are immune from state claims under Or. Rev. Stat. § 30.265(6)(c); (3) Lohner was 'absolutely privileged to make his statements; and (4) it is undisputed that the Seven-Page File was provided to New Directions by the BCCD and not by the BCPD. Defendants remaining arguments are that none of the statements made by Lohner were false and neither Lohner nor anyoné else at the BCPD provided New Directions with Addison’s Seven-Page File.

Lohner admits that he told Addison’s employers about the information that Officer Newman purportedly told Lohner regarding the traffic stop that occurred. Addison, however, disputes Newman’s version of the events. Thus, there is a factual dispute as to whether the information Loh-ner told Addison’s employers was truthful. Additionally, Lohner admits that he told Addison’s employers that Addison had “mood swings.” This is information that would “tend to' diminish the esteem, respect, goodwill or confidence in which [Addison] is held or to .excite adverse, derogatory or unpleasant feelings or opinions against” Addison. Neumann v. Liles, 358 Or. 706, 711, 369 P.3d 1117 (2016). Thus, it is information-that can support a defamation claim, if false, and is information that Addison disputes. There are also inconsistent statements regarding what was said during the conversations between. Lohner and Lind, and the quick and extreme reaction to those conversations supports an inference that something significant against Addison was said.

Moreover, Lohner discussed with Lind the fact that Addison had an altercation with a former employer and advised Lind that she could get more information from the “public records.” Addison’s Fact File, however, contained a line item showing the stalking complaint citation without noting that it was only valid for a few days, and there is evidence that the BCCD’s version of Addison’s Fact File contains a notation of the stalking citation’s expiration date. Further, the Seven-Page File received by New Directions contained the stalking Incident Report, which is not typically included with a $10 overview fact file report purchase.