IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

MELANIE NICHOL, 

Plaintiff, 

v. 

CITY OF SPRINGFIELD; GINO 

GRIMALDI, in his individual and official 

capacities; and RICHARD L. LEWIS, in 

his individual and official capacities. 

Defendants. 

Michael Owens 

Owens & McBreen, P.C. 

319 SW Washington Street. Suite 614 

Portland, OR 97204 

Attorney for plaintiff 

Andrea D. Coit, 

Jonathan M. Hood, 

Harrang Long Gary Rudnick, PC 

360 East 10th Avenue, Suite 300 

Eugene, OR 97401 

Attorneys for defendants 

Page 1 - OPINION AND ORDER 

Case No. 6:14-cv-01983-AA 

OPINION AND ORDER 

Case 6:14-cv-01983-AA Document 54 Filed 06/27/16 Page 1 of 11
AIKEN, Judge: 

CASE SUMMARY 

Plaintiff Melanie Nichol brings six claims against her former employer, defendant City of 

Springfield ("City"), and against defendants Springfield Police Chief Richard Lewis ("Chief Lewis") 

and Springfield City Manager Gino Grimaldi ("Grimaldi"). Plaintiff alleges (1) all defendants 

deprived her of her rights to equal protection and due process under the Fourteenth Amendment, her 

right to freedom of speech under the First Amendment, in violation of 42 U.S.C. § 1983; (2) all 

defendants violated her right to be free from sex discrimination under Title VII of the Civil Rights 

Act, in violation of 42 U.S.C. § 1983; and (3) the City unlawfully retaliated against her for reporting 

sexual harassment, in violation of 42 U.S.C. § 2000e-3. Plaintiff also asserts the following four 

state law claims against the City: (1) unlawful retaliation in violation of Or. Rev. Stat. § 659A.203; 

(2) unlawful retaliation in violation of Or. Rev. Stat. § 659A.199; (3) unlawful employment 

practices (retaliation for reporting sexual harassment) in violation of Or. Rev. Stat.§ 659A.030(1)(f); 

and (4) common-law wrongful discharge. 

Defendants move for summary judgment on all claims. For the reasons that follow, the Court 

grants summary judgment on the Title VII claim brought under 42 U.S.C. § 1983, the unlawful 

retaliation claim asserted under Or. Rev. Stat. § 659A.199. The Court also narrows plaintiffs 

wrongful discharge claim. The Court defers consideration of the rest of defendants' summary 

judgment motion and stays all proceedings in this case pending the decision of the Oregon state 

courts in a closely related administrative proceeding. 

BACKGROUND 

Plaintiff was hired by the City in 2004 to work as a dispatcher for the Springfield Police 

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Case 6:14-cv-01983-AA Document 54 Filed 06/27/16 Page 2 of 11
Department ("SPD"). Compl. if 7. Plaintiffs employment was terminated on June 5, 2013. Com pl. 

if 3 5. Plaintiff alleges she was fired because she reported the inappropriate behavior of several police 

officers. Compl. if 42. Plaintiff alleges she met with City human resource employees at least twice 

between December 2011 and January 2012 to report a number of workplace incidents. Com pl. if 10. 

The first incident occurred in July 2010. Plaintiff alleges that while she was working in the 

dispatch room, Detective George Crolly ("Crolly") entered and began yelling at one of plaintiffs coworkers. Compl. if 8. Plaintiff further alleges Crolly was upset because the SWAT team had been 

called out, but Crolly, himself a member of the team, had not been notified. Plaintiff asserts she 

considered Crolly' s behavior inappropriate and unprofessional because she and the other dispatchers 

were on active phone calls concerning the SWAT situation and other emergencies. Compl. if 32. 

The next incident occurred in December 2011. Plaintiff alleges Detective Jeff Martin 

("Martin") confronted her in the dispatch room and subjected her to angry and insulting comments 

about a disagreement regarding the Springfield Police Association. Compl. if 9, 11. At that point, 

plaintiff decided to contact human resources. She alleges her report included information about the 

following issues: 

• The incident with Crolly; 

• The incident with Martin; 

• An incident with Sergeant Dave Lewis ("Lewis") in which Lewis allegedly 

pulled plaintiff into his office and made "inappropriate, degrading, and 

hostile comments" including telling her, "Don't think you're not welcome 

back here. You're welcome back if you bake us some cookies." Compl. if 

11; and 

• Inappropriate on-duty sexual activities and relationships of a number of SPD 

employees, including plaintiffs concern employees could receive preferential 

treatment based on these relationships. Compl. if 10. 

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Case 6:14-cv-01983-AA Document 54 Filed 06/27/16 Page 3 of 11
Plaintiff contends that after she reported these incidents to the City's human resource 

employees, a number of City and SPD employees subjected her performance to exceptional scrutiny 

above and beyond what was normal for other employees. Compl. if 13. In March 2013, plaintiff 

alleges she reported concerns she had with the conduct of Officer Ethan Spencer ("Spencer"). 

Plaintiff reported Spencer sent a message from his patrol car to another dispatcher relaying the 

private, off-duty activities of plaintiff. Further, plaintiff reported on another occasion, Spencer sent 

a message through the Law Enforcement Data System ("LEDS") indicating that Spencer had 

observed the vehicle of a male former employee of City at plaintiffs home while plaintiff was offduty. Compl. if 15. Plaintiff alleges she was concerned for her safety because Spencer had been 

monitoring her personal off-duty activities, was showing an inordinate amount of interest in her 

personal life, and was using his access to the LEDS to run the license plates of vehicles parked at 

her home. Compl. if 15, 16. 

Sergeant Tom Rappe ("Rappe") met with plaintiff to discuss her allegations about Spencer. 

Compl. if 22. When Rappe pressed plaintiff for the name of the dispatcher who had told her about 

Spencer's conduct on penalty of disciplinary action, plaintiff refused to answer any questions without 

a union representative present. Compl. if 23. A union representative accompanied plaintiff to a 

second meeting with Rappe. In that second meeting, plaintiff alleges Rappe implied plaintiffs 

insistence on having a union representative present was evidence she was making false reports. 

Compl. if 24. 

Following this meeting, Chief Lewis opened an investigation into plaintiffs reports regarding 

employee misconduct. Compl. if 25. In May 2013, Chief Lewis placed plaintiff on administrative 

leave due to allegations she "provided false or fictitious information" in her reports about Spencer. 

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Case 6:14-cv-01983-AA Document 54 Filed 06/27/16 Page 4 of 11
Compl. if 26. About a week later, Chief Lewis informed plaintiff she was also under investigation 

for dishonesty in her December 2011 reports to human resources. Compl. if 27. 

Rappe conducted the investigation and determined plaintiff had been dishonest on two 

occasions. Compl. if 28. First, Rappe found plaintiff had made a false statement in connection with 

the report about Spencer. Compl. iii! 28-29. Plaintiff had identified a fellow dispatcher, Linda 

Bevers ("Bevers"), as her source of information regarding the first Spencer incident, the message 

from the patrol car. Rappe confirmed Bevers was the source of that information. However, Rappe 

concluded plaintiff had falsely stated Bevers also was the person who told her about the second 

Spencer incident, regarding improper use of the LEDS. Second, Rappe found plaintiff had been 

dishonest about the timing of the Crolly incident. Compl. iii! 30-31. Crolly admitted he had yelled 

at the dispatchers when he found out he had not been notified about the SW AT team deployment. 

However, Rappe concluded Crolly had entered the dispatch room between fifteen and thirty minutes 

after the dispatchers' call with the SWAT team ended, and that plaintiff had lied when she said the 

dispatchers were still on the phone at the time of the incident. 

Chief Lewis adopted Rappe's findings and terminated plaintiffs employment on June 5, 

2013. Compl. if 35. Grimaldi ratified the termination in June 2013. Compl. if 36. 

In September 2014, the Department of Public Safety Standards and Training ("DPS ST") 

initiated licensure revocation proceedings against plaintiff based on the City's allegations that 

plaintiff was dishonest. In April 2015, a contested case hearing before an administrative law judge 

("ALJ'') was held in which plaintiff was represented by counsel. In that hearing, as in this case, 

plaintiff argued she was fired in retaliation for reporting employee misconduct, while the City 

contended she was fired for dishonesty. The ALJ issued a Proposed Order finding plaintiff was not 

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Case 6:14-cv-01983-AA Document 54 Filed 06/27/16 Page 5 of 11
terminated for dishonesty and recommending against termination of the license. After review, 

DPS ST rejected the recommendation of the ALJ. Instead, DPS ST issued a Final Order finding 

plaintiff more likely than not had been terminated for dishonesty and revoking her Basic, 

Intermediate and Advanced Telecommunicator certifications. Plaintiffs appeal ofDPSST's Final 

Order to the Oregon Court of Appeals, filed in February 2016, is currently pending. 

Plaintiff filed this lawsuit December 11, 2014. She contends she is entitled to compensatory 

damages for lost wages and employment benefits, as well as damages for pain, suffering, and 

emotional distress. Plaintiff also seeks punitive damages, costs, and attorney fees. Compl. iii! 43, 

46, 49, 54, 62, 65, 73. Defendants move for summary judgment on all claims. 

STANDARD OF REVIEW 

A court "shall grant summary judgement if the movant shows that there is no genuine issue 

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 (1986). In reviewing a motion for summary 

judgment, a court views the evidence in the light most favorable to the non-moving party. Anderson 

v. Liberty Lobby, Inc., 477 U.S. 242, 255 (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." 

MatsushitaElec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation 

marks omitted). 

DISCUSSION 

First, defendants argue DPSST's Final Order has preclusive effect on the issue of why 

plaintiff was terminated, and it bars all six of plaintiffs claims. Second, defendant's argue all six 

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Case 6:14-cv-01983-AA Document 54 Filed 06/27/16 Page 6 of 11
claims are entitled to summary judgment because there is no genuine issue as to any material fact. 

I conclude plaintiffs § 1983 claim for violation of Title VII state law claim for unlawful retaliation 

in violation of Or. Rev. Stat. § 659A.199 fail as a matter of law. I further conclude plaintiffs 

wrongful discharge claim must be narrowed as a matter of law. Plaintiffs remaining claims must 

be stayed pending resolution of appeal of the telecommunicator certification revocation proceeding 

because the decision of the Oregon Court of Appeals in that case very likely would have a preclusive 

effect in this litigation. 

I Title VII I§ 1983 Claim 

In part of plaintiffs first claim for relief, she asserts defendants violated 42 U.S.C. § 1983 

when they discriminated against her on the basis of sex, in violation of Title VII of the Civil Rights 

Act, 42 U.S.C. § 2000e-3(a). 1 Plaintiff cannot maintain this claim against Chief Lewis or Grimaldi 

because Title VII does not permit liability against individual supervisors, only against the employer. 

See Craig v. M & 0 Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir. 2007) ("We have long held that 

Title VII does not provide a separate cause of action against supervisors or co-workers.") (citations 

omitted). Plaintiff argues she nonetheless can assert this claim against Chief Lewis and Grimaldi 

because she brings it through 42 U.S.C. § 1983. However, Title VII claims cannot be brought 

through section 1983. A plaintiff may not convert a federal statutory claim into a § 1983 claim 

where the statute provides an exclusive remedy for violations of its terms. Pennhurst State Sch. & 

Hosp. v. Halderman, 451 U.S. 1, 28 (1981). "When the remedial devices provided in a particular 

1

Plaintiff also asserts a standalone claim against the City under Title VII as well as a 

claim against the City pursuant to Or. Rev. Stat.§ 659A030(1), the Oregon statute patterned after 

Title VII. Those claims are unaffected by the analysis in this section and are stayed pending the 

decision of the Oregon state courts in plaintiffs DPS ST appeal. 

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Case 6:14-cv-01983-AA Document 54 Filed 06/27/16 Page 7 of 11
Act are sufficiently comprehensive, they may suffice to demonstrate Congressional intent to preclude 

the remedy of suit under§ 1983." Middlesex Cnty. Sewerage Auth. v. Nat'l Sea Clammers Ass 'n, 

453 U.S. 1, 19 (1981). Plaintiff may not bring a Title VII claim through section 1983 because Title 

VII provides an exclusive remedy for violations of its terms. Plaintiff's section 1983 claim for 

violation of Title VII must be dismissed in its entirety. 

II State Whistleblower Claims 

Plaintiff brought claims under both Or. Rev. Stat. § 659A.203 and Or. Rev. Stat. § 

659A. l 99 against the City. Section 659A.203 makes it an unlawful practice for a "any public 

employer" to "[p ]rohibit any employee from disclosing, or take or threaten to take disciplinary action 

against an employee for the disclosure of any information that the employee reasonably believes is 

evidence of ... a violation of any federal or state law ... [,] [ m ]ismanagement[,] ... or abuse of 

authority ... [.]" Or. Rev. Stat.§ 659A.203(1)(b)(A)-(B). In contrast, section 659A.199 does not 

specify whether it governs public or private employers. It provides that "an employer" may not 

"retaliate against an employee . . . for the reason that the employee has in good faith reported 

information that the employee believes is evidence of a violation of a state or federal law, rule or 

regulation." Id. § 659A.199(1). 

Plaintiff argues section 659A. l 99 is applicable to both private and public employers because 

"employer" includes all types of employer, both public and private. Plaintiff submits this Court is 

bound by the plain text of the statute and contends that ifthe Oregon Legislature had intended it to 

cover only private sector workers, it would have said so. Defendants point out the statutes involve 

different standards, with section 659A.203 protecting whistleblowing regarding conduct the 

employee "reasonably" believes is illegal (an objective standard), and section 659A.199 protecting 

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Case 6:14-cv-01983-AA Document 54 Filed 06/27/16 Page 8 of 11
whistleblowing regarding conduct the employee in "good faith" believes is illegal (a subjective 

standard). Compare id. § 659A.203(l)(b) with id. § 659A.199(1). Defendants contend applying 

both provisions to public employers would undermine legislative intent to have different standards 

apply in different employment contexts. This Court recently addressed this precise question in 

depth, reviewing legislative history and recent Oregon state court decisions interpreting the 

provisions at issue. See Minger v. Hood Community College District, 2016 WL 475382, *6-7 (D. 

Or. Feb. 4, 2016). The Court concluded that the Oregon Legislature did not intend section 659 A.199 

to apply to public employers, reasoning that "[i]t would ... make little sense to subject a public 

employer to competing requirements by allowing a plaintiff to bring claims under both" provisions. 

Id. at *7. I find the reasoning of Minger persuasive and conclude Or. Rev. Stat. § 659A. l 99 does 

not apply to public employers. Defendants are entitled to summary judgment on this claim. 

III Wrongful Discharge Claim 

Plaintiff claims the City wrongfully terminated her employment for (1) pursuing her protected 

right to have a union representative present during an investigatory interview and (2) blowing the 

whistle on coworker misconduct. Defendants assert the common law wrongful discharge claim is 

partially barred because there are adequate statutory remedies addressing the claims related to 

whistleblowing. Defendants concede statutory remedies are inadequate with regard to the 

relationship between plaintiff's termination and her refusal to answer questions without a union 

representative present. 

The tort of wrongful discharge is not intended to be a tort of general application; rather, it 

is meant to provide a remedy when the conduct in question is unacceptable and no other remedy is 

available. Draper v. Astoria Sch. Dist. No. IC, 995 F.Supp. 1122, 1127 (D. Or. 1998) (citing Walsh 

Page 9 - OPINION AND ORDER 

Case 6:14-cv-01983-AA Document 54 Filed 06/27/16 Page 9 of 11
v. Consol. Freightways, Inc., 563 P.2d 1205, 1208 (1977)), abrogated on other grounds by Rabkin 

v. Or. Health Scis. Univ., 350 F.3d 967, 972 (9th Cir. 2003). This court has concluded that section 

659 A.203 's whistle blower protections provide an "adequate (if not better) remedy than a wrongful 

discharge claim." Neighorn v. Quest Health Care, 870 F. Supp. 2d 1069, 1106 (D. Or. 2012) 

(citation and quotation marks omitted). Because of these adequate statutory remedies, plaintiff 

cannot maintain a wrongful discharge claim for whistleblower retaliation. However, summary 

judgment is denied on the wrongful discharge claim insofar as it relates to plaintiffs refusal to answer 

questions without a union representative present. 

IV Preclusion and Remaining Claims 

Plaintiffs remaining claims share a common question: whether plaintiff was terminated for 

cause (dishonesty) or in retaliation for her reports about misconduct. That same question was at the 

heart of the administrative proceeding that resulted in a revocation of plaintiffs Basic, Intermediate 

and Advanced Telecommunicator certifications. Plaintiffs appeal of the certification revocation 

decision is pending before the Oregon Court of Appeals. It appears very likely that the Court of 

Appeals' determination of the reason for plaintiffs termination would have preclusive effect in this 

lawsuit. Accordingly, based on the principles set out in Younger v. Harris, 401 U.S. 37 (1971) and 

Gilbertson v. Albright, 381F.3d965 (9th Cir. 2004) (en bane), the Court must defer consideration 

of defendant's remaining summary judgment arguments.2 

2 At the Court's request, the parties submitted supplemental briefs on whether a 

Younger/Gilberston stay is appropriate. See Doc. 51. They agree such a stay is the correct 

course if the Court concludes preclusive effect is likely to attach the to the state courts' decision 

in the DPSST appeal. 

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Case 6:14-cv-01983-AA Document 54 Filed 06/27/16 Page 10 of 11
CONCLUSION 

Defendant's Motion for Summary Judgment (doc. 35) is GRANTED in part as follows: 

defendant is entitled to summary judgment on the Title VII/§ 1983 claim (part of the first claim for 

relief) and the Or. Rev. Stat. § 659A. l 99 claim (fourth claim for relief), and plaintiff may proceed 

on the wrongful discharge claim (sixth claim for relief) only as it relates to her assertion of her right 

to have a union representative present during questioning. The Court STAYS all proceedings on 

plaintiffs remaining claims, including consideration of defendant's remaining arguments for 

summary judgment, pending the resolution of the DPSST appeal in the Oregon state courts. 

IT IS SO ORDERED. 

~J Dated this __ day of :ftrty 2016. 

Ann Aiken 

United States District Judge 

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