SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

Clifford S. Davidson, OSB No. 125378 

cdavidson@sussmanshank.com 

Kristen G. Hilton, OSB No. 151950 

khilton@sussmanshank.com 

SUSSMAN SHANK LLP 

1000 SW Broadway, Suite 1400 

Portland, OR 97205-3089 

Telephone: (503) 227-1111 

Facsimile: (503) 248-0130 

Attorneys for Plaintiff Brian Addison 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

(Pendleton Division) 

BRIAN ADDISON, an individual,

Plaintiff, 

 v. 

CITY OF BAKER CITY, a municipal 

corporation, Police Chief WYN LOHNER, 

in his official and individual capacities, 

Defendants. 

Case No. 2:15-cv-2041-SI 

Plaintiff Brian Addison’s 

RESPONSE IN OPPOSITION TO 

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT 

 ORAL ARGUMENT REQUESTED 

Declarations of Kristen G. Hilton, 

Clifford S. Davidson (public and 

sealed), and Brian Addison filed 

herewith

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 1 of 60
Page i – PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

TABLE OF CONTENTS 

Page

I. INTRODUCTION; FACTS NOT ALREADY PRESENTED TO THE COURT ............ 1

II. DISPUTED FACTS ................................................................................................... 1

A. What Occurred When Addison Was Fired From The Record-Courier In 2008 

And When Officer Newman Stopped Addison In 2014. ......................................... 1 

B. What Lohner Said to New Directions About Addison, And Whether 

His Statements And The Fact File Played A Role In Addison’s Termination ......... 2 

C. Who Provided The Records To New Directions .................................................... 4 

D. Lohner Was, And Still Is Deeply Offended By Addison’s Editorial And His Stated 

Concerns For Community Safety Were Pretextual ................................................ 4 

E. Policies Governing Lohner .................................................................................... 5 

III. SUMMARY JUDGMENT BURDENS ..................................................................... 5

IV. THE FIRST AMENDMENT RETALIATION CLAIM 

SHOULD GO TO THE JURY ................................................................................ 6

A. Genuine Issues Of Material Fact Preclude Summary Judgment On The Merits ... 6 

Factor 1: Addison engaged in constitutionally protected activity. ............................ 7 

Factor 2: “. . . subjected to adverse action by the defendant . . .” ............................ 7 

Factor 2: “. . . that would chill a person of ordinary firmness from ........................ 10 

 continuing to engage in the activity.” ..................................................... 10 

Factor 3: There was a substantial causal relationship between the ..................... 10 

 constitutionally protected activity and the adverse action. ...................... 10 

(1) Temporal proximity of retaliation and protected conduct ........................... 10 

(2) Expressed opposition to the speech .......................................................... 11 

(3) Facts to demonstrate that the explanations were pretextual ...................... 11 

B. Lohner Has Not Shown That He Is Entitled To Qualified Immunity With Respect 

To The First Amendment Retaliation Claim ............................................................... 14 

C. Issues of Fact Preclude Summary Judgment on Supervisory Liability For First 

Amendment Retaliation ............................................................................................. 15 

D. Defendants Fail To Meet Their Burden For Summary Judgment On Municipal 

Liability For First Amendment Retaliation .................................................................. 18 

V. THE INTERFERENCE WITH EMPLOYMENT CLAIM SHOULD GO TO THE JURY

 ............................................................................................................18 

VI. THE DEFAMATION CLAIM SHOULD GO TO THE JURY ................................. 23

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 2 of 60
Page ii – PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

VII. LOHNER IS NOT ENTITLED TO ABSOLUTE IMMUNITY ON THE COMMON 

LAW CLAIMS ................................................................................................................ 26

A. Issues Of Fact, Concerning Whether Lohner Was Required Or Authorized To 

Contact New Directions Concerning Addison, Preclude Summary Judgment .... 27 

B. Oregon Tort Claims Act Immunity Does Not Apply Because Lohner Did Not 

Exercise “Discretion” Within The Meaning Of That Statute ................................ 31 

C. Lohner Has Not Satisfied His Burden Of Showing That Public Policy Requires 

Absolute Immunity .............................................................................................. 34 

VIII. THE DUE PROCESS CLAIMS SHOULD GO TO THE JURY ............................ 35

A. Procedural Due Process: Addison Has Made A Prima Facie Showing Of A 

Property Interest In Employment With New Directions For The Remainder 

Of His “30-Day Work Plan” ........................................................................ 35 

B. Procedural Due Process: Defendants Are Responsible For The 

Deprivation Of Addison’s Property Right In Anticipated 

Further Employment .................................................................................. 37 

C. Substantive Due Process: Addison Has Made A Prima Facie Showing Of A 

Liberty Interest In Not Being Stigmatized Or Blacklisted In His Occupation 

By Government Officials ............................................................................ 40 

1. Addison Has Demonstrated A Liberty Interest Sufficient To Survive Summary 

 Judgment ...................................................................................................... 41 

D. Lohner Is Not Entitled To Qualified Immunity On The Due Process Claims

 .................................................................................................43 

E. Lohner Is Not Entitled To Qualified Immunity On Addison’s Request For An 

Injunction Preventing Lohner From Calling Addison’s Prospective 

Employers...... .......................................................................................... 44 

IX. THE BULK OF DEFENDANTS’ PURPORTED EVIDENCE IS INADMISSIBLE, 

AND SOME OF IT WAS NOT PRODUCED IN DISCOVERY ............................. 44

A. Lohner’s Deposition Testimony .............................................................. 45 

B. Defendants Failed to Disclose Exhibit 113 and Have Not Authenticated It

 ..............................................................................................46 

C. The Court Should Exclude Other Statements in Lohner’s Declaration ... 47 

X. CONCLUSION ....................................................................................................... 50

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 3 of 60
Page iii – PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

TABLE OF AUTHORITIES 

CASES

Ambat v. City & Cnty. of San Francisco, 

757 F.3d 1017 (9th Cir. 2014) ...................................................................................... 5 

Anderson v. Liberty Lobby, Inc., 

477 U.S. 242 (1986) .................................................................................................... 5 

Aranda v. City of McMinnville, 

942 F. Supp. 2d 1096 (D. Or. 2013) .......................................................................... 18 

Austin v. Univ. of Or., 

No. 6:15-CV-02257-MC, 2016 U.S. Dist. LEXIS 121198 (D. Or. Sep. 8, 2016) ......... 32 

Bennett v. Farmers Ins. Co., 

332 Ore. 138 (2001) .................................................................................................. 37 

Beyene v. Coleman Sec. Services, Inc., 

854 F.2d 1179 (9th Cir. 1988) .................................................................................... 47 

Blount v. Conn. Gen. Life Ins. Co., 

No. CV 01-1341-BR, 2002 U.S. Dist. LEXIS 25553 (D. Or. July 2, 2002) .................. 46 

Bollow v. Fed. Reserve Bank of San Francisco, 650 F.2d 1093, 1101 (9th Cir. 1981) .. 42 

Borough of Duryea v. Guarnieri, 

564 U.S. 379 (2011) .................................................................................................. 23 

Brew v. City of Emeryville, 

138 F. Supp. 2d 1217 (N.D. Cal. 2001) ..................................................................... 47 

Brunette v. Humane Soc'y, 

294 F.3d 1205 (9th Cir. 2002) ...................................................................................... 9 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 4 of 60
Page iv – PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

Buckles v. King Cty., 

191 F.3d 1127 (9th Cir. 1999) .................................................................................... 27 

Butler v. San Diego Dist. Attorney’s Office, 

370 F.3d 956 (9th Cir. 2004) ...................................................................................... 27 

Butz v. Economou, 

438 U.S. 478 (1978) .................................................................................................. 27 

Chao v. Westside Drywall, Inc., 

709 F. Supp. 2d 1037 (D. Or. 2010) .......................................................................... 45 

Chesterman v. Barmon, 

305 Ore. 439 (1988) .................................................................................................. 22 

Conn v. Gabbert, 

526 U.S. 286 (1999) .................................................................................................. 40 

Cooper v. PGE, 

110 Ore. App. 581 (1992) .......................................................................................... 23 

Coszalter v. City of Salem, 

320 F.3d 968 (9th Cir. 2003) ............................................................................... passim 

DiMartini v. Ferrin, 

889 F.2d 922 (9th Cir. 1989) ...................................................................................... 43 

Draper v. Astoria Sch. Dist. No. 1C, 

995 F. Supp. 1122 (D. Or. 1998) ............................................................................... 23 

Dun & Bradstreet v. Greenmoss Builders, 

472 U.S. 749 (1985) .................................................................................................. 23 

Dzung Chu v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 

627 F.3d 376 (9th Cir. 2010) ........................................................................................ 5 

Edwards v. Multnomah Cnty., 

No. 3:14-cv-531-AC, 2016 U.S. Dist. LEXIS 86391 (D. Or. May 19, 2016) ............... 10 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 5 of 60
Page v – PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

Ellins v. City of Sierra Madre, 

710 F.3d 1049 (9th Cir. 2013) .................................................................................... 14 

Eng v. Cooley, 

552 F.3d 1062 (9th Cir. 2009) ...................................................................................... 7 

Federal Deposit Ins. Corp. v. Henderson, 

940 F.2d 465 (9th Cir. 1991) ................................................................................ 37, 43 

Ford v. City of Yakima, 

706 F.3d 1188 (9th Cir. 2013) .......................................................................... 7, 14, 15 

Friedman v. Live Nation Merch., Inc., 

833 F.3d 1180 (9th Cir. 2016) ...................................................................................... 5 

Garcetti v. Ceballos, 

547 U.S. 410 (2006) .................................................................................................. 28 

Greene v. McElroy, 

360 U.S. 474 (1959) .................................................................................................. 35 

Greisen v. Hanken, 

No. 3:14-cv-01399-SI, 2015 U.S. Dist. LEXIS 35749 (D. Or. Mar. 23, 2015) ............. 22 

Handy v. Lane Cnty., 

No. 6:12-cv-01548-AA, 2017 U.S. Dist. LEXIS 1954 (D. Or. Jan. 2, 2017) .................. 7 

Hayes v. Bolen, 

594 F. App'x 420 (9th Cir. 2015) (unpublished memo.) ............................................. 44 

Heidt v. City of McMinnville, 

No. 3:15-cv-0989-SI, 2015 U.S. Dist. LEXIS 172361 (D. Or. Dec. 29, 2015) ..... passim 

Jacobson v. Schwarzenegger, 

650 F. Supp. 2d 1032 (C.D. Cal. 2009) ..................................................................... 45 

Johnson v. Duffy, 

588 F.2d 740 (9th Cir. 1978) ...................................................................................... 15 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 6 of 60
Page vi – PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

Jones v. Cate, 

No. 2:12-cv-2181 TLN CKD, 2016 U.S. Dist. LEXIS 8463 (E.D. Cal. Jan. 22, 2016) 15 

L & D of Ore., Inc. v. Am. States Ins. Co., 

171 Ore. App. 17 (2000) ............................................................................................ 25 

Lacey v. Maricopa County, 

693 F.3d 896 (9th Cir. 2012) ...................................................................................... 27 

Las Vegas Sands, LLC v. Nehme, 

632 F.3d 526 (9th Cir. 2011) ........................................................................................ 6 

Latter-Singh v. Holder, 

668 F.3d 1159 (9th Cir. 2012) .................................................................................... 42 

Lewis v. Oregon Beauty Supply Co., 

302 Ore. 616 (1986) ............................................................................................ 19, 20 

Lowrimore v. Dimmitt, 

310 Ore. 291 (1990) ............................................................................................ 32, 34 

Martinez v. Oregon, 

No. 6:10-cv-06007-AA, 2012 U.S. Dist. LEXIS 121186 (D. Or. Aug. 27, 2012) ......... 34 

McBride v. Magnuson, 

282 Ore. 433 (1978) ............................................................................................ 32, 33 

Mendocino Envt’l Cntr., 

192 F.ed 1283 (9th Cir. 1999) .................................................................................... 10 

Merritt v. Mackey, 

827 F.2d 1368 (9th Cir. 1987) ............................................................................. passim 

Monico v. City of Cornelius, 

No. 03:13-cv-02129-HZ, 2015 U.S. Dist. LEXIS 44634 (D. Or. Apr. 6, 2015) ...... 14, 29 

Mulligan v. Nichols, 

835 F.3d 983 (9th Cir. 2016) ................................................................................ 6, 8, 9 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 7 of 60
Page vii – PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

Nelson v. City of Davis, 

571 F.3d 924 (9th Cir. 2009) .................................................................................. 6, 25 

Neumann v. Liles, 

358 Ore. 706 (2016) ............................................................................................ 24, 25 

O’Brien v. Welty, 

818 F.3d 920 (9th Cir. 2016). ................................................................................. 6, 10 

Redman v. County of San Diego, 

942 F.2d 1435 (9th Cir. 1991) .................................................................................... 15 

Redwind v. W. Union, LLC, 

No. 3:14-cv-01699-AC, 2016 U.S. Dist. LEXIS 57793 (D. Or. May 2, 2016) ............. 46 

Roth v. Veteran's Admin. of United States, 

856 F.2d 1401 (9th Cir. 1988) .............................................................................. 40, 42 

Schulz v. Visionary Props., 

No. 3:14-cv-01129-AC, 2015 U.S. Dist. LEXIS 160756 (D. Or. Dec. 1, 2015) ........... 48 

Shanks v. Dressel, 

540 F.3d 1082 (9th Cir. 2008) .............................................................................. 35, 37 

Shearer v. Lambert, 

274 Ore. 449 (1976) .................................................................................................. 27 

Sizemore v. City of Madras, 

No. 02-74-KI, 2005 U.S. Dist. LEXIS 49622 (D. Or. Feb. 2, 2005) ...................... 29, 30 

Stretten v. Wadsworth Veteran’s Hospital, 

537 F.2d 361 (9th Cir. 1976) ...................................................................................... 40 

Tolan v. Cotton, 

134 S. Ct. 1861 (2014) ................................................................................................ 6 

Turner v. State, 

359 Ore. 644 (2016) ............................................................................................ 32, 33 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 8 of 60
Page viii – PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

United States v. Dibble, 

429 F.2d 598 (9th Cir. 1970) ...................................................................................... 49 

Vanelli v. Reynolds Shool Dist. No. 7, 

667 F.2d 773 (9th Cir. 1982) ...................................................................................... 40 

Wellington v. Lane Cty., 

460 F. App'x 690 (9th Cir. 2011) (unpub. memorandum) .......................................... 41 

Westfall v. Erwin, 

484 U.S. 292 (1988) .................................................................................................. 27 

Westfall v. State, 

355 Or. 144 (2014) .............................................................................................. 27, 32 

STATUTES

ORS § 30.265(6)(c) ....................................................................................................... 31 

OTHER AUTHORITIES

Enforcement Guidance No. 915.002 (Apr. 25, 2012): Consideration of Arrest and 

Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 

1964 ........................................................................................................................... 31 

Ore. UCJI 57.02 (2005 rev. with 2006-2016 supps.) ..................................................... 19 

Ore. UCJI 57.03 (2005 rev. with 2006-2016 supps.) ..................................................... 19 

U.S. Const. amend. I ....................................................................................................... 7 

RULES

Fed. R. Civ. P. 26(a)(1)(A)(ii) ........................................................................................ 46 

Fed. R. Civ. P. 32 .......................................................................................................... 45 

Fed. R. Civ. P. 56(a) ........................................................................................................ 5 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 9 of 60
Page ix – PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

Fed. R. Civ. P. 56(c)(4) ................................................................................................. 44 

Fed. R. Civ. P. Rule 37(c)(1) ......................................................................................... 46 

FRE 602 ............................................................................................................ 48, 49, 50

FRE 801(c) .................................................................................................................... 45 

FRE 901(b)(1) ............................................................................................................... 49 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 10 of 60
Page 1 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

I. INTRODUCTION; FACTS NOT ALREADY PRESENTED TO THE COURT 

On their motion for summary judgment, Defendants bore the burden of showing 

this Court, through competent evidence, that there are no issues of fact suitable for jury 

determination. Rather than do so, Defendants have offered bare proclamations such as: 

Chief Lohner was on duty and in his uniform when he called New Directions, therefore he 

acted within the scope of his duties when he defamed the plaintiff; choosing to call 

Plaintiff’s employers is a discretionary act entitling the Chief to absolute immunity 

because, well, the Chief chose to do it; because he is the Chief of Police, Lohner is entitled 

to interfere with the employment of Baker City residents if he feels it promotes safety. 

In short, Defendants’ response reflects the we-don’t-need-to-explain-ourselves 

attitude that landed them in this situation in the first place. Numerous questions of fact, 

and inconsistencies in the evidence, preclude summary judgment and should go to the 

jury.1

II. DISPUTED FACTS2

A. What Occurred When Addison Was Fired From The Record-Courier In 2008 

And When Officer Newman Stopped Addison In 2014. 

Addison admits that he had an argument with Greg Brinton at the time he was 

terminated from the Record-Courier and admits that he ripped up a book Debbie 

Schoeningh gave him. (Ex. AA, Addison Dep. 45:13-46:73; Concurrently-filed Declaration 

of Brian Addison (“Addison Decl.”), ¶ 7.) However, Addison did not: bang on windows (Ex. 

AA, Addison Dep. at 43:16-44:11); slam the newspaper’s camera on the table or break 

 

1 Defendants’ motion on statute of limitations grounds fails for all of the reasons stated in 

Plaintiff’s Motion for Partial Summary Judgment. 

2 Addison incorporates by reference the facts described in, and evidence submitted with, 

Plaintiff’s Motion for Partial Summary Judgment filed on March 3, 2017, and sets forth 

additional relevant facts herein. (See ECF No. 51.) 

3 Exhibits AA through NN are attached to the concurrently-filed Declaration of Kristen G. 

Hilton. Exhibits OO through QQ are attached to the concurrently filed Declaration of 

Clifford S. Davidson. 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 11 of 60
Page 2 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

the lens (Ex. AA, Addison Dep. at 41:12-42:11); or yell at employees at Brinton’s office 

(Ex. AA, Addison Dep. at 44:12-22). 

At the June 10 hearing on the stalking citation that Brinton signed, Brinton testified 

that he did not feel threatened by Addison. (Addison Decl., ¶¶ 4-5.) The hearing was 

continued to June 13 because Schoeningh did not appear in court on the 10th. (Addison 

Decl., ¶ 5.) On June 13, Schoeningh stated in open court that she had nothing to add to 

Mr. Brinton’s testimony, and the court dismissed the stalking citation. (Addison Decl., ¶¶ 

6-7.) Although he was terminated by the Record-Courier, Addison, included the 

newspaper on his résumé. (Ex. FF; Ex. BB, Hendricks Dep. at 36:9-12.) 

With respect to the June 1, 2014 traffic stop by Officer Newman, Addison testified 

that he did not lose his temper with Officer Newman or yell at Newman during that stop. 

(Ex. C, Addison Dep. at 85:7-18.)4

B. What Lohner Said to New Directions About Addison, And Whether His 

Statements And The Fact File Played A Role In Addison’s Termination 

On November 3, 2017, Addison was interviewed by a Baker City Herald reporter 

for what would become the Article.5 (Ex. GG.) There had been some confusion 

concerning whether Addison was authorized to provide information in connection with the 

Article, but New Directions did not terminate Addison or fill out any termination paperwork 

the week of November 3, 2014. (Ex. B, Hendricks Dep. at 21:14-22:23; Ex. CC, Selander 

Dep. at 47:20-48:2, 54:14-57:14, 66:10-67:24.) On November 12, 2017, two days after 

publication of the Article, New Directions presented Addison with a 30-Day Work Plan. 

(Ex. CC, Selander Dep. at 11:2-9; Ex. DD, Deputy Dep. at 27:24-32:1; Ex. HH) When he 

 

4 Exhibits A through W are attached to the Declaration of Kristen G. Hilton. (See ECF No. 

52.) Exhibits X through Z are attached to the Declaration of Clifford S. Davidson. (See 

ECF No. 53.)

5 All terms not defined herein have the same definition as in Plaintiff’s Motion for Partial 

Summary Judgment. 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 12 of 60
Page 3 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

was presented the 30-Day Work Plan, he was told that his employment would continue 

for a 30-day period so long as he complied with the terms of the 30-Day Work Plan. 

(Addison Decl., ¶¶ 2-3.) The 30-Day Work Plan stated: “We will meet each week during 

our regular scheduled supervision time, which is Mondays at 3:00 pm, to review your 

compliance with this work plan.” (Ex. HH at 2.) Addison’s direct supervisor testified that 

she did not remember Addison doing anything between November 12 and November 14 

to violate the Work Plan. (Ex. DD, Deputy Dep. at 31:7-20.) 

In the morning and afternoon of November 13, Marji Lind of New Directions spoke 

to Lohner. Lohner admits that he told Lind that Addison had “mood swings,” including in 

relation to an issue with Addison’s former employer, and expressed concern over Addison 

working with “vulnerable populations.” (Ex. X, Lohner Dep. at 130:2-131:17, 134:22-

135:16), but Lind testified that Addison’s name never even came up during the phone 

conversation. (ECF No. 50, Ex. 117, Lind Dep. at 13:13-14:13.). Lind also testified that 

following the discussion with Lohner, she contacted Hendricks, and said “Hey, I just 

received a suggestion to update our policy and procedure and the process we use for 

background checks” and that the two discussed getting records on local hires and the 

budgets associated with that. (Ex. EE, Lind Dep. at 16:3-17:6, 17:17-18:8.) Hendricks 

testified that there was no discussion at that time about obtaining reports about other New 

Directions employees, or about changing overall policies and procedures. (Ex. BB, 

Hendricks Dep. at 11:12-15; 13:4-8.) Rather, the discussion she had with Lind and 

Selander immediately after Lohner’s phone conversation with Lind was to obtain “a report 

about Mr. Addison” because “[t]here might be something of a concern.” (Ex. BB, 

Hendricks Dep. at 10:9-11:8.) Hendricks obtained the fact file and incident report on the 

morning of November 14 and she and Selander looked at the records and discussed them 

before preparing the termination paperwork. (Ex. B, Hendricks Dep. at 21:14-22:23; Ex. 

Q.) Addison was terminated a few hours later. (Ex. P.) 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 13 of 60
Page 4 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

C. Who Provided The Records To New Directions 

As set forth in Plaintiff’s Motion for Partial Summary Judgment, there is evidence 

in the record that indicates the fact file and incident report provided to New Directions 

came from the Baker City Police Department, not the BCCD. (Pltf. Mot. at 6-7; Ex. B, 

Hendricks Dep. at 21:23-22:1, 39:4-24; Ex. F, Sackos Dep. at 14:14-23, 35:17-37:7, 45:9-

47:18, 52:9-24; Ex. L, p. 3; Ex. Q; Ex. R; Ex. Y, Taylor Dep. at 56:24-59:15.) 

D. Lohner Was, And Still Is Deeply Offended By Addison’s Editorial And His 

Stated Concerns For Community Safety Were Pretextual 

 Lohner met with Addison and Schoeningh the day after the Editorial was published 

to demand its retraction and question the integrity of the paper. (Ex. X, Lohner Dep. at 

71:7-15; Ex. OO, Lohner Dep. at 74:22-77:2, 82:15-83:18; Ex. C, Addison Dep. at 26:10-

28:24.) Lohner was upset about “that accusation piece specifically the Fourth Amendment 

and specifically right after we just started a canine program. I didn’t want the community 

to think that we were out there violating people’s rights with this new tool, as Brian referred 

to it.” (Ex. OO, Lohner Dep. at 82:23-83:4.) Lohner’s testimony reveals that he is still 

deeply offended by Addison’s Editorial. (Ex. OO, Lohner Dep. at 74:22-78:11; 82:15-

86:20.) 

 Lohner flagged Addison “caution” in 2008, purportedly out of concern for Debbie 

Schoeningh’s safety. (Ex. X, Lohner Dep. 19:14-20:3.) A caution, which flashes “red” on 

the dispatch screen, means there is something that officers need to know about a person 

or location. (Ex. KK, Sackos Dep. at 38:11-39:4, 40:15-16.) According to Mike Kee, the 

City’s 30(b)(6) designee and a former police chief, in his experience flagging would be 

used if someone “was a threat, that could hurt a police officer who didn't know the history 

of the person.” (Ex. LL, Kee Dep. at 103:11-104:11.) However, at his deposition, Ron 

Taylor (with the permission of the director of BCCD) reviewed the records of other persons 

known to be violent toward police officers and determined that those individuals were not 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 14 of 60
Page 5 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

“flagged as caution.” (Ex. PP, Taylor Dep. at 45:22-51:25, 67:23-68:13; Second Davidson 

Decl. (Sealed) Exs. RR, SS, TT, UU; Ex. MM.) 

E. Policies Governing Lohner 

 Kee testified that beyond the City Charter and the oath of office, there is “no other 

policy that either gives him [the Police Chief] authority or, you know, controls the authority, 

aside from the laws.” (Ex. LL, Kee Dep. at 50:22-52:10) He testified that the Position 

Description, marked as Exhibit 13 at Kee’s deposition, “looks more like a memo for a 

vacancy. It outlines the essential job functions. However, it’s not a Position Description.” 

(Ex. LL, Kee Dep. at 32:20-33:16.) 

III. SUMMARY JUDGMENT BURDENS 

Defendants move for summary judgment on the merits of all claims. Defendants 

bear the “heavy burden” of demonstrating the absence of any triable issue of material 

fact. Ambat v. City & Cnty. of San Francisco, 757 F.3d 1017, 1031 (9th Cir. 2014); Fed. 

R. Civ. P. 56(a). “A moving party without the ultimate burden of persuasion at trial . . . has 

both the initial burden of production and the ultimate burden of persuasion on a motion 

for summary judgment.” Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1188 (9th 

Cir. 2016) (quotation marks omitted). Here, with respect to the merits, Defendants must 

either negate an essential element of Addison’s claims, or show that Addison does not 

have enough evidence of an essential element in order to carry his burden of persuasion 

at trial. Id.

Addison’s claims survive if, through mustering evidence, he shows that there is a 

genuine issue of material fact for trial. Dzung Chu v. Oracle Corp. (In re Oracle Corp. Sec. 

Litig.), 627 F.3d 376, 387 (9th Cir. 2010). A material issue is genuine “if the evidence is 

such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All inferences must be drawn in Addison’s 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 15 of 60
Page 6 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

favor. Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014). Moreover, where, as here, parties 

file cross-motions for summary judgment, the Court “must consider each party’s evidence, 

regardless [of] under which motion the evidence is offered.” Las Vegas Sands, LLC v. 

Nehme, 632 F.3d 526, 532 (9th Cir. 2011) (citation omitted). Addison may introduce the 

testimony of third parties in order to show inconsistencies with Lohner’s testimony and 

demonstrate general issues of material fact. Nelson v. City of Davis, 571 F.3d 924, 929 

(9th Cir. 2009) (vacating award of summary judgment in § 1983 action against police 

officers). 

IV. THE FIRST AMENDMENT RETALIATION CLAIM 

SHOULD GO TO THE JURY 

A. Genuine Issues Of Material Fact Preclude Summary Judgment On The 

Merits 

To prevail on his claim of First Amendment Retaliation, Addison must prove: 

“(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) (quoting Blair v. Bethel Sch. Dist., 

608 F.3d 540, 543 (9th Cir 2010)).6 At a minimum, genuine issues of material fact 

 

6 In a case decided only a few months before Mulligan, the Ninth Circuit articulated this 

test as: “(1) [s]he was engaged in a constitutionally protected activity, (2) the defendant’s 

actions would chill a person of ordinary firmness from continuing to engage in the 

protected activity, and (3) the protected activity was a substantial or motivating factor in 

the defendant’s conduct.” O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016). It is unclear 

why the Ninth Circuit applied different tests in these cases. The Mulligan standard was 

articulated more recently and arguably is more stringent, therefore Addison addresses 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 16 of 60
Page 7 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

concerning each element preclude summary judgment on the merits of Addison’s First 

Amendment retaliation claim. 

Factor 1: Addison engaged in constitutionally protected activity. 

Addison indisputably engaged in constitutionally protected activity when he wrote 

the Editorial. See Ford v. City of Yakima, 706 F.3d 1188, 1192 (9th Cir. 2013) (citing City 

of Houston v. Hill, 482 U.S. 451, 461 (1987)) (“[T]he First Amendment protects a 

significant amount of verbal criticism and challenge directed at police officers.”). 

Defendants rightly do not claim otherwise. 

Further, Addison indisputably engaged in constitutionally protected activity when 

he provided an interview to the Baker City Herald, which published the Article concerning 

Addison’s work on behalf of New Directions. Eng v. Cooley, 552 F.3d 1062, 1067-1070 

(9th Cir. 2009), cert. denied sub nom., Cooley v. Eng, 130 S. Ct. 1047 (2010) (First 

Amendment encompasses the right to give interviews). Defendants rightly do not claim 

otherwise. 

Addison also indisputably engaged in constitutionally protected activity by 

speaking at City Council meetings, and meeting with local officials, in furtherance of his 

role at New Directions – as featured in the Article. U.S. Const. amend. I; Handy v. Lane 

Cnty., No. 6:12-cv-01548-AA, 2017 U.S. Dist. LEXIS 1954, at *12 (D. Or. Jan. 2, 2017). 

(“A vital component of the right to petition the government is the ability to communicate 

concerns to elected representatives.”). Defendants rightly do not claim otherwise. 

Factor 2: “. . . subjected to adverse action by the defendant . . .” 

Lohner admits that he called Addison’s employers and described to them the 

“Caution Flag” that Lohner had placed in Addison’s dispatch records, and warned the 

employers of Addison’s “mood swings.” (Ex. X, Lohner Dep. at 18:8-20:3, 106:6-110:21, 

 

the elements of that test. 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 17 of 60
Page 8 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

123:2-125:13, 129:10-131:4, 132:10-133:2.) Addison was fired from both employers that 

Lohner called. (Ex. AA, Addison Dep. at 142:20-144:20.) There thus is, at minimum, a 

genuine issue of material fact as to whether Addison was subjected to adverse action by 

Lohner. 

Adverse action typically involves the loss of a valuable governmental benefit or 

privilege. Defendants rely heavily on Mulligan v. Nichols, 835 F.3d 983 (9th Cir. 2016). In 

Mulligan, the plaintiff was injured during an arrest by the LAPD and filed an administrative 

grievance. The police union responded to the grievance on behalf of the arresting officers. 

Because the plaintiff was a prominent executive, his ordeal attracted media attention. In 

the course of the media attention, the union stated that the plaintiff had a history of 

abusing bath salts, he was high when arrested and force was needed in order to subdue 

him. He was fired from his position with Deutsche Bank in light of the press release and 

media coverage. Id. at 986-87. The Ninth Circuit held that “the accusations and media 

leaks by the [police union] and its leadership are not enough to demonstrate a 

constitutional violation,” because they did not affect the plaintiff’s rights, benefits, 

relationship or status with the state, or constitute the loss of a valuable governmental 

benefit or privilege. Id. at 989. The court further stated that the reputational harm plaintiff 

undoubtedly suffered, which eventually resulted in the loss of his job, “is not actionable 

under § 1983 unless it is accompanied by some more tangible interests.” Id.

Mulligan does not, as Defendants suggest, bar Addison’s claim. The court in 

Mulligan cited Coszalter v. City of Salem, 320 F.3d 968, 975-76 (9th Cir. 2003), and 

clarified: Ninth Circuit law does 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.” Mulligan, 835 F.3d at 989 n5. In Coszalter, 

the Ninth Circuit disclaimed any “exclusive, category-based limitation on the kind of 

retaliatory action that is actionable under the First Amendment,” and noted that the 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 18 of 60
Page 9 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

“adverse action” requirement announced in prior cases does not mean “that the 

government is allowed to take severe retaliatory actions . . . because those actions do not 

result in the loss of a valuable governmental benefit or privilege.” Coszalter, 320 F.3d at 

975-76. 

This is not a case, such as Mulligan, in which the police have spoken out publicly 

to defend themselves against a grievance and incidentally caused the plaintiff to lose his 

job. Rather, in this case, the Chief of Police privately contacted Addison’s employers after 

learning that he worked for them and used his position to damage Addison in his 

professional life. This is precisely the type of “severe retaliatory action” that the Coszalter

court contemplated. 

Further, there is a genuine issue of fact concerning whether Addison has been 

deprived of a valuable governmental benefit or privilege. Defendants repeatedly 

emphasize that New Directions is the contracted mental health provider for Baker County 

(Def. Mot. at 6; Lohner Decl. at 2), and go so far as to assert that Lohner’s 

communications with New Directions comprised petitioning of government within the 

meaning of the First Amendment and the Noerr-Pennington doctrine. (Ans. to SAC at 11 

¶ 29.) Lohner testified that New Directions is “a partner that we work with quite frequently 

on some of our, not only vulnerable, but potentially dangerous people that we deal with 

through mental health.” (Ex. OO, Lohner Dep. at 127:5-8.) This evidence precludes 

summary judgment because, crediting Lohner’s testimony, there is an issue of fact 

regarding whether Addison’s termination can be attributed to government actors. Cf. 

Brunette v. Humane Soc'y, 294 F.3d 1205, 1209-10 (9th Cir. 2002) (noting, in context of 

determining whether a private party could be charged with state action, that 

interrelatedness of state actors and private parties is “a highly factual question”). 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 19 of 60
Page 10 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

Factor 2: “. . . that would chill a person of ordinary firmness from 

continuing to engage in the activity.” 

The test for whether Defendants’ actions would chill a person of ordinary firmness 

from engaging in protected First Amendment activities is “generic and objective.” O'Brien 

v. Welty, 818 F.3d 920, 933 (9th Cir. 2016). Whether Addison “himself was, or would have 

been, chilled is not the test.” Mendocino Envt’l Cntr., 192 F.3d 1283, 1300 (9th Cir. 1999). 

It is indisputable that the prospect of losing a job in a small city would chill the First 

Amendment activities of a person of ordinary firmness.

Factor 3: There was a substantial causal relationship between the 

constitutionally protected activity and the adverse action. 

The Ninth Circuit has listed three types of circumstantial evidence that a plaintiff 

might present in order to demonstrate a genuine issue of material fact on the issue of 

retaliatory motive: (1) temporal proximity of the retaliation and the protected conduct; (2) 

expressed opposition to the speech, or (3) facts to demonstrate that the explanations 

were pretextual. Coszalter, 320 F.3d at 977; see Edwards v. Multnomah Cnty., No. 3:14-

cv-531-AC, 2016 U.S. Dist. LEXIS 86391, at *17 (D. Or. May 19, 2016), adopted sub 

nom., Edwards v. Staton, 2016 U.S. Dist. LEXIS 85944 (D. Or. July 1, 2016) (Simon, J.). 

 (1) Temporal proximity of retaliation and protected conduct 

Whether Lohner’s acts were temporally proximate to Addison’s protected conduct 

depends on which conduct is considered. Addison’s protected conduct of speaking to the 

Baker City Herald occurred a matter of days before Lohner called New Directions. (Ex. X, 

Lohner Dep. at 114:2-11, 123:2-125:22; Ex. N.) While Lohner’s calls to McQuisten and 

New Directions occurred several years after the Editorial was published, there is no per 

se rule of proximity. Indeed, the Ninth Circuit appears to have anticipated precisely the 

situation present here: 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 20 of 60
Page 11 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

“A rule that any period over a certain time is per se too long . 

. . would be unrealistically simplistic. Retaliation often follows 

quickly upon the act that offended the retaliator, but this is not 

always so. For a variety of reasons, some retaliators prefer 

to take their time: They may wait until the victim is especially 

vulnerable or until an especially hurtful action becomes 

possible. Or they may wait until they think the lapse of time 

disguises their true motivation.” 

Coszalter, 320 F.3d at 978. 

 (2) Expressed opposition to the speech 

Lohner indisputably objected to the Editorial. He visited the Record-Courier office 

to meet with Addison and his editor the day after the Editorial was published to demand 

its retraction and question the integrity of the paper. (Ex. X, Lohner Dep. at 71:7-15; Ex. 

OO, Lohner Dep. at 74:22-77:2, 82:15-83:18; Ex. C, Addison Dep. at 26:10-28:24.) 

Lohner’s testimony reveals that he is still deeply offended by Addison’s Editorial. (Ex. OO, 

Lohner Dep. at 74:22-78:11; 82:15-86:20.) 

(3) Facts to demonstrate that the explanations were 

pretextual 

Addison has adduced evidence that Lohner’s explanation – that his, and his 

department’s, conduct toward Addison reflected concern for “community safety” – was 

pretextual. Addison has presented evidence that persons known to be violent toward 

police officers were not “flag[ged] as caution,” despite the fact that warning officers is a 

key function of the caution flag. (Ex. KK Sackos Dep. at 38:11-39:4, 40:15-16; Ex. LL, 

Kee Dep. at 103:11-104:11; Ex. MM; Ex. PP, Taylor Dep. at 45:22-51:25; Second 

Davidson Decl. (Sealed), Exs. RR-UU.) Addison had minimal contact with the Baker City 

Police Department until the Editorial, at which point he was pulled over many times and 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 21 of 60
Page 12 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

only once issued a ticket (for expired tags). (Ex. C, Addison Dep. at 67:7-21, 69:4-75:1, 

85:19-86:9, 88:6-89:23, 103:22-106:1 and 130:19-131:11; Ex. Q; Ex. W.) The Editorial 

criticized a key drug interdiction program as it was just getting started. (Ex. K; Ex. OO, 

Lohner Dep. at 82:15-86:20.) Lohner could not cite a single example of his calling an 

employer under circumstances similar to those in Addison’s case. (Ex. X, Lohner Dep. at 

133:24-135:16.) A rational fact-finder could infer that Lohner’s treatment of Addison in a 

manner inconsistent with his treatment of others indicates retaliatory motive. Coszalter, 

320 F.3d at 978. And, a pretextual explanation “casts doubt on other explanations that, 

standing alone, might appear to be true.” Id.

Further, there is evidence from which a rational jury could infer that Lohner’s 

statement to New Directions concerning Addison was different from what Lohner and 

Marji Lind described in their testimony. Evidence in the record indicates that New 

Directions, a facility specializing in mental health and addiction treatment, would not be 

dissuaded from continuing to employ someone simply because he has “mood swings,” 

the term Lohner claims he used with New Directions in reference to Addison. Rather, the 

evidence demonstrates that New Directions encourages its employees to remain 

employees and participate in the New Directions Employee Assistance Program offered 

through its health insurer: 

“Employee issues, such as drug and alcohol abuse, 

emotional, marital and family problems, and financial and 

legal problems can be addressed through our Employee 

Assistance Program (EAP). The primary goal of EAP is to 

assist employers and employees in addressing work-related 

and non-work-related problems that impact our community. 

[¶] Employees needing EAP services can look on the Regents 

website and go to their member page and request 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 22 of 60
Page 13 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

authorization. This is provided with our current Health Plan 

with Regents. [¶] Contact the Human Resources Benefits 

Department for more details.” 

(Ex. II, p. 30; Ex. JJ.) 

Another portion of the New Directions handbook demonstrates New Directions’ 

official commitment to employees experiencing “issues”: 

“New Directions Northwest, Inc. recognizes the importance of 

supporting those employees that are in recovery themselves, 

and may desire to actively participate in community recovery 

support programs activities. It would be the preference of NDN 

that employees attend such support groups that are not 

attended by clients, for example: meetings for “professionals” 

or attend such meetings outside of the immediate community 

that we serve. However, it is also understood that this may not 

be a possibility.” 

(Ex. II, p. 30; Ex. JJ.) [emphasis added].) New Directions also provides for an investigative 

process if an employee might be suspended. (Ex. II., p. 15.) 

Given New Directions’ mission and its accommodation and support of employees, 

a reasonable juror could conclude that the statements Lohner made, coupled with the 

misleading version of the “fact file” and the Incident Report, concerned not “mood swings,” 

but rather far more serious accusations. The only grounds for “immediate dismissal” 

specifically mentioned in New Directions’ handbook is “serious misconduct.” (Ex. II, p. 

20.) There is therefore at minimum an issue of fact concerning what, exactly, Lohner 

actually told Marji Lind. Indeed, Lohner’s and Lind’s accounts of what they discussed on 

the phone vary greatly and a reasonable juror could find that one or both witnesses are 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 23 of 60
Page 14 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

not telling the truth. For instance, Lind testified that Addison’s name never even came up 

during the phone conversation. (ECF No. 50, Ex. 117, Lind Dep. at 13:13-14:13.) 

From this disparity, a jury could infer that Lohner’s explanation of his conduct is – 

and, to date, has been – pretextual with respect to his true motives for contacting New 

Directions. 

B. Lohner Has Not Shown That He Is Entitled To Qualified Immunity With 

Respect To The First Amendment Retaliation Claim 

“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 (Feb. 8, 2013). This settles the issue. The relevant inquiry 

with respect to whether the law against First Amendment retaliation was clearly 

established is not “whether an earlier case mirrors the specific facts here,” but rather, 

whether the state of the law gave Lohner official fair warning that his conduct toward 

Addison was unconstitutional. Ellins v. City of Sierra Madre, 710 F.3d 1049, 1064 (9th 

Cir. 2013). “Closely analogous case law is not required to show that a right was clearly 

established.” Ford, 706 F.3d at 1196. 

Lohner tries to frame the questions more narrowly: would a police officer have 

been on notice that he cannot direct an employer to public records (i.e., the “fact file”)? 

(Def. Mot. at 29.) Lohner likely is trying to fit his case within the framework of Monico v. 

City of Cornelius, No. 03:13-cv-02129-HZ, 2015 U.S. Dist. LEXIS 44634, at *35-37 (D. 

Or. Apr. 6, 2015), in which the defendants successfully argued that providing a publiclyfiled opinion by Magistrate Judge Papak to the plaintiff’s employer was not actionable. 

The present case is distinguishable. First, in Monico, neither party questioned that 

the judicial opinion was, in fact, the judicial opinion. Here, there is a genuine dispute of 

material fact as to the authenticity, source and contents of the alleged “public record” New 

Directions received. (See Pltf. Mot. at 6-7; Ex. B, Hendricks Dep. at 21:23-22:1, 39:4-24; 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 24 of 60
Page 15 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

Ex. F, Sackos Dep. at 14:14-23, 35:17-37:7, 45:9-47:18, 52:9-24; Ex. L, p. 3; Exs. Q, R; 

Ex. Y, Taylor Dep. at 56:24-59:15.) 

Further, Lohner’s argument fails to account for the totality of Lohner’s conduct as 

revealed by the record (construed in Addison’s favor): in retaliation for Addison’s Editorial, 

Addison’s ongoing work for the Baker County Press, his interview in the Article, and 

petitioning government on New Directions’ behalf, Lohner spoke with New Directions, 

characterized Addison as dangerous/unsuitable and then attempted to support that claim 

through a “fact file” and incident report conveniently missing key information and 

apparently provided through atypical channels. 

Simply put: Addison alleges retaliatory acts, plain and simple. If thirteen-year-old 

cases generally proscribing First Amendment retaliation sufficiently notify law 

enforcement officers that they cannot even make retaliatory arrests when supported by 

probable cause, Ford, 706 F.3d at 1195-96, then such cases surely placed Lohner on 

notice that he could not do what he did. 

C. Issues of Fact Preclude Summary Judgment on Supervisory Liability For 

First Amendment Retaliation 

“A supervisor may be liable [on a Section 1983 claim] if there exists either (1) his 

or her personal involvement in the constitutional deprivation, or (2) a sufficient causal 

connection between the supervisor's wrongful conduct and the constitutional violation.” 

Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc) 

(emphasis in original) (internal quotation marks omitted). “The requisite causal connection 

can be established ... by setting in motion a series of acts by others which the actor knows 

or reasonably should know would cause others to inflict the constitutional injury.” Johnson 

v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978). “A plaintiff must also show that the 

supervisor had the requisite animus to establish liability.” Jones v. Cate, No. 2:12-cv-2181 

TLN CKD, 2016 U.S. Dist. LEXIS 8463, at *18 (E.D. Cal. Jan. 22, 2016), citing OSU 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 25 of 60
Page 16 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

Student Alliance v. Ray, 699 F.3d 1053, 1071 (9th Cir. 2012). There are issues of fact 

that preclude summary judgment on this claim. 

Defendants assert: “[i]t is undisputed that at no time has Chief Lohner ever directed 

any Police Officer employed by Baker City to stop Brian Addison; nor has Chief Lohner 

ever directed any Police Officer employed by Baker City to retaliate against Brian Addison 

for any reason . . .; nor has Chief Lohner ever directed any Police Officer employed by 

Baker City to retaliate against Brian Addison for any newspaper articles written by Brian 

Addison or for any statement made by Brian Addison to a newspaper.” The only evidence 

that Defendants cite in support of this assertion is Lohner’s self-serving declaration. (See 

Def. Motion at 29.) 

The information reflected in the fact file, copies of traffic warnings, and Addison’s 

testimony suggest otherwise. The fact file dates back to 2004. (Ex. Q.). It lists no traffic 

stops, warnings, or citations prior to 2008. (Id.) After 2008, there are 19 entries and, 

according to Addison, that number does not account for all stops. (Id.; see also Ex. C, 

Addison Dep. at 67:7-21, 69:4-75:1, 85:19-86:9, 88:6-89:23, 103:22-106:1 and 130:19-

131:11; Ex. J.). The traffic stops culminated in the June 1, 2014 stop by Officer Dustin 

Newman that Lohner claims is evidence of Addison’s “mood swings” and that he 

recounted to two of Addison’s employers. (Ex. X, Lohner Dep. at 106:7-108:9, 108:25-

110:21, 129:10-131:4; Ex. U.) While Addison is not suing directly to recover for any stops 

that occurred prior to October 29, 2013, those incidents are relevant evidence of 

retaliatory motive. Heidt v. City of McMinnville, No. 3:15-cv-0989-SI, 2015 U.S. Dist. 

LEXIS 172361, at *8 (D. Or. Dec. 29, 2015) (Simon, J.), citing RK Ventures, Inc. v. City 

of Seattle, 307 F.3d 1045, 1062 (9th Cir. 2002). They also explain any frustrated reaction 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 26 of 60
Page 17 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

Addison may have had to the stop by Officer Newman, which Addison denies.7 (Ex. C, 

Addison Dep. at 85:7-11.) 

As Addison testified, most of the stops prior to and including the June 2014 stop 

were illegitimate and the infractions alleged in the warnings untrue. (Ex. C, Addison Dep. 

at 67:7-21, 69:4-75:1, 85:19-86:9, 88:6-89:23, 103:22-106:1, and 130:19-131:11.) 

Addison testified that he did not lose his temper with Officer Newman or yell at him during 

the June 1, 2014 stop, and when asked about another stop, Addison commented that he 

was “flustered” because he had been “[p]ulled over so many times.” (Ex. C, Addison Dep 

at 85:7-18.) Given that the stops started occurring after publication of the Editorial that 

criticized the BCPD and offended Lohner, a rational jury could infer that Lohner directed 

the stops and increased monitoring of Addison. Even if Lohner did not direct these stops, 

including the 2014 stop by Newman, a rational jury could infer that as Police Chief, Lohner 

was aware of them and took no action to stop them. 

Defendants also rely solely on Lohner’s declaration to support the claims that he 

“never directed any Police Officer employed by Baker City to provide any materials 

concerning the Plaintiff to New Directions during the Plaintiff’s employment with New 

Directions” and that “no Police Officer employed by Baker City provided any materials 

concerning the Plaintiff to New Directions.” (See Def. Mot. at 30.) Evidence was adduced 

during discovery that contradicts Lohner’s statements and indicates that the “fact file” that 

New Directions obtained was not from the BCCD and, in fact, came from the Baker City 

Police Department. (Pltf. Mot. at 6-7; Ex. B, Hendricks Dep. at 21:23-22:1, 39:4-24; Ex. 

F, Sackos Dep. at 14:14-23, 35:17-37:7, 45:9-47:18, 52:9-24; Ex. L, p. 3; Ex. Q; Ex. R; 

Ex. Y, Taylor Dep. at 56:24-59:15.) 

 

7 The only evidence Defendants offer to contradict Addison’s account of that stop is 

Lohner’s testimony regarding what Officer Newman purportedly told him. That testimony 

is inadmissible hearsay under FRE 801(c). 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 27 of 60
Page 18 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

The evidence of Lohner’s retaliatory motive for directing these actions or permitting 

them to occur is described above at pages 11-14, and Section II. Addison’s Second Claim 

for Relief should be permitted to go to a jury. 

Finally, for the same reasons that Lohner is not entitled to qualified immunity on 

the First Claim for Relief (pp. 14-15), Lohner is not entitled to qualified immunity on this 

claim. 

D. Defendants Fail To Meet Their Burden For Summary Judgment On 

Municipal Liability For First Amendment Retaliation 

Defendants’ only argument in favor of summary judgment on this claim is that 

“because Chief Lohner is not liable to the Plaintiff as set forth above; therefore, Baker City 

cannot be held liable.” (Def. Mot. at 31.) For all of the reasons set forth above in Section 

IV(A)-(B), there is, at a minimum, an issue of fact regarding Lohner’s liability. Therefore, 

Defendants’ argument on the Third Claim for Relief fails. Because Defendants have not 

offered any independent reasons for why Addison’s claim for municipal liability fails, they 

have failed to meet initial burden on summary judgment and their motion must be denied. 

See Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1109-1110 (D. Or. 2013) 

(Simon, J.) (denying motion for summary judgment on municipal liability claim because 

city failed point to any evidence why plaintiff could not succeed on the theory of municipal 

liability pled in the complaint). 

V. THE INTERFERENCE WITH EMPLOYMENT CLAIM 

SHOULD GO TO THE JURY 

Under Oregon law, the elements of interference with employment are: 

(1) The plaintiff had an employment relationship; 

(2) The defendant was not a party to the employment 

relationship; 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 28 of 60
Page 19 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

(3) The defendant intended to interfere with the relationship 

or knew that such interference was substantially certain 

to occur from the defendant’s actions; 

(4) The defendant interfered through improper means or for 

an improper purpose in one or more of the ways alleged 

by the plaintiff; 

(5) The defendant’s interference caused harm to the 

relationship; and 

(6) The defendant’s interference resulted in damages to the 

plaintiff 

Ore. UCJI 57.02 (2005 rev. with 2006-2016 supps.). 

“Harm means that the plaintiff’s employment relationship is more difficult to perform 

or less valuable or profitable to the plaintiff, or the plaintiff is otherwise prevented from 

receiving the full benefits of his employment relationship.” Ore. UCJI 57.03 (2005 rev. 

with 2006-2016 supps.). The tort can apply to at-will employment. Lewis v. Oregon Beauty 

Supply Co., 302 Ore. 616, 620 (1986). 

There is prima facie evidence to support each of these elements. It is undisputed 

that at the time of Lohner’s November 12 email and November 13 phone calls with Lind, 

Addison and New Directions had an employment relationship. (Ex. B, Hendricks Dep. at 

41:6-42:1; Ex. H; Ex. X, Lohner Dep. at 125:1-3.) It is also undisputed that Lohner, a 

Baker City employee, was not a party to Addison and New Directions’ employment 

relationship. (Lohner Decl. at 2 [“I have been employed by Baker City as a police officer 

since 1999.”].) In addition, there is evidence to support that Lohner intended to interfere 

with Addison’s employment relationship or knew that such interference was substantially 

certain to occur. Specifically, Lohner affirmatively reached out to, Lind, the second in 

command at New Directions, about a “recent hire”, whom Lohner later identified to Lind 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 29 of 60
Page 20 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

as Addison, and inquired about New Directions’ background check policies to which Lind 

responded: “we do internal background checks, including DHS background checks . . . 

something we should know???” (Ex. O, p. 5; Ex. X, Lohner Dep. at 123:3-125:3.) Rather 

than asking in an email if their checks include local records or explaining what kind of 

information may generally be obtained from the BCCD, Lohner instructed New Directions: 

“Give me a call . . . .” (Ex. O, p. 5.) 

There are issues of fact regarding what was said during Lohner’s phone 

conversations with Marji Lind of New Directions, but Lohner admitted that he described a 

caution flag that he gave Addison and relayed hearsay about Addison “going off” on 

another police officer. (Ex. X, Lohner Dep. at 129:10-131:4.) There is no dispute that 

Lohner told Lind about the availability of “local” records. (Ex. X, Lohner Dep. at 129:10-

130:1; ECF No. 50, Ex. 117, Lind Dep. at 13:13-14:6.) There is also no dispute that the 

day after Lohner’s discussions with Lind, New Directions obtained a copy of Addison’s 

fact file and the incident report of the June 2008 stalking allegations involving Addison 

and the Record-Courier, an event that Lohner admits discussing with Lind. (Ex. B, 

Hendricks Dep. at 22:9-16; Ex. Q; Ex. X, Lohner Dep. at 129:10-131:4; 132:10-133:2.). 

As to the element of whether Lohner interfered through improper means or for an 

improper purpose, there is evidence that Lohner interfered through improper means by 

retaliating against Addison for exercising his First Amendment Rights and by defaming 

Addison, and for the improper purpose of retaliation. (See Sections III(A); Section V(A)). 

There is also evidence that the fact file obtained by New Directions came from the Baker 

City Police Department and not the “sheriff’s office” as claimed by New Directions and 

Lohner. (Ex. B, Hendricks Dep. at 21:23-22:1; Ex. F, Sackos Dep. at 37:3-7, 52:9-24; Ex. 

R; Ex. Y, Taylor Dep. at 56:24-59:15.). 

On the elements of causation and damages, under Oregon law, discharge is not 

necessary in order to establish a claim for intentional interference. Or. Beauty Supply, 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 30 of 60
Page 21 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

302 Ore. at 622-23 (“Discharge is not a necessary element of this tort. The salient inquiry 

in any interference claim is whether defendant's tortious conduct damaged plaintiff's 

economic or contractual relationship.”) In any event, there is an issue of fact regarding 

whether Lohner’s acts caused New Directions to terminate Addison. 

Although New Directions’ witnesses testified that Addison was terminated for 

insubordination and that the decision was made to terminate Addison prior to the phone 

conversations with Lohner and receipt of the fact file and incident report on Addison, the 

chronology of events suggests otherwise.8 The claimed acts of insubordination relating to 

the newspaper article occurred on November 3, 2014. (Ex. CC Selander Dep. at 26:10-

30:23, 54:16-55:22, 66:10-16; Ex. GG.) The Article was published on November 10, 2014. 

(Ex. N.) On November 12, 2014, New Directions placed Addison on a 30-Day Work Plan, 

pursuant to which there were supervisor meetings scheduled for each Monday, starting 

November 17. (Ex. CC, Selander Dep. at 11:2-9; Ex. DD, Deputy Dep. at 29:2-30:16; Ex. 

HH.) Addison’s direct supervisor testified that she did not remember Addison doing 

anything between November 12 and November 14 to violate the Work Plan. (Ex. DD, 

Deputy Dep. at 31:7-20.) In the morning and afternoon of November 13, Marji Lind spoke 

to Lohner and Lohner told her about Addison’s “mood swings” and incident at his former 

employer, the Record-Courier. (Ex. X, Lohner Dep. at 130:2-131:17, 134:22-135:16). 

Karen Hendricks obtained the fact file and incident report on the morning of November 

14 and she and Ms. Selander looked at the records before preparing the termination 

paperwork. (Ex. B, Hendricks Dep. at 21:14-22:23; Ex. Q.) Addison was terminated a few 

 

8 Defendants cite Karen Hendricks’ testimony to support their assertion that “the process 

to terminate the Plaintiff by New Directions had already begun before Marji Lind talked to 

Chief Lohner” (Def. Mot. at 33). However, Ms. Hendricks testified that she did not make 

the decision to terminate. (ECF 50, Ex. 116, Hendricks Dep. at 15:12-14.) The evidence 

therefore lacks foundation for the purpose to which it is being put. 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 31 of 60
Page 22 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

hours later. (Ex. P). From this evidence, a rational jury could infer that Lohner’s 

interference was the cause of Addison’s termination. 

Finally, there is an issue of fact regarding Defendants’ contention that “Chief 

Lohner was acting within the scope and course of his employment when [he] 

communicated with Marji Lind” (Def. Mot. at 31), which precludes summary judgment on 

Count 2 of the Fourth Claim for Relief. The only evidence to support Defendants’ assertion 

are Lohner’s statements that he “was on duty as the Chief of Police for Baker City and 

was in my full police uniform” when he emailed Ms. Lind and during his phone discussions 

with her. (Lohner Decl. at 2-3.) He also states that he was on duty when he contacted 

Kerry McQuisten on June 2, 2014, though does not mention being on duty when he met 

with her on June 3, 2014. (Lohner Decl. at 11.) 

Just because someone is on duty or at work does not mean that all of their actions 

are within the course and scope of their employment. Indeed, 

"[t]hree requirements must be met to conclude that an 

employee was acting within the scope of employment. These 

requirements traditionally have been stated as: (1) whether 

the act occurred substantially within the time and space limits 

authorized by the employment; (2) whether the employee was 

motivated, at least partially, by a purpose to serve the 

employer; and (3) whether the act is of a kind which the 

employee was hired to perform.” 

Chesterman v. Barmon, 305 Ore. 439, 442, (1988); see also Greisen v. Hanken, No. 3:14-

cv-01399-SI, 2015 U.S. Dist. LEXIS 35749, at *12 (D. Or. Mar. 23, 2015) (Simon, J.) 

(citing same test to determine whether a public employee is acting within the scope of his 

or her employment). “Whether a party has acted within the scope of employment presents 

a jury question if there is a genuine factual dispute.” Draper v. Astoria Sch. Dist. No. 1C, 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 32 of 60
Page 23 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

995 F. Supp. 1122, 1141 (D. Or. 1998) (finding that record did not support determination 

of motive as a matter of law). Here, Defendants offer no evidence to meet the requisite 

test. On this record, both counts of Addison’s intentional interference claim should go to 

the jury.9 

VI. THE DEFAMATION CLAIM SHOULD GO TO THE JURY 

Addison has pled three counts of defamation. For the reasons explained below, 

Defendants’ motion for summary judgment fails as to all counts. 

Defendants seek summary judgment on Count 3, against Lohner, solely on the 

ground that “Chief Lohner was acting within the scope and course of his employment at 

the time he communicated with Marji Lind of New Directions.” (Def. Mot. at 41.) 

Defendants have not satisfied their burden to establish that as a matter of law that Lohner 

acted within the scope of his employment when he made the alleged defamatory 

statements. (See p. 22, above.) Therefore, Defendants are not entitled to summary 

judgment on Count 3. 

With respect to Counts 1 and 2, Defendants first assert that “the statements of 

Chief Lohner that were made to Marji Lind are protected by the First Amendment.” (Def. 

Mot at 41-43.) As explained in Addison’s motion for partial summary judgment, the 

content, form, and context of Lohner’s speech indicate that it was not on a matter of public 

concern and therefore there is no heightened First Amendment protection. (See Pltf. Mot. 

at 16-20; Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 761 (1985); Borough 

of Duryea v. Guarnieri, 564 U.S. 379, 398 (2011); Cooper v. PGE, 110 Ore. App. 581 

(1992), rev. denied, 830 P.2d 595 (Apr. 28, 1992).) 

Defendants next argue that they are entitled to summary judgment on Counts 1 

 

9 Despite what Defendants claim (Def. Mot. at 31-32), finding an issue of fact as to 

whether Lohner was acting in the course and scope of his employment does not entitle 

Defendants to dismissal of all Section 1983 claims.

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 33 of 60
Page 24 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

and 2 on the merits. Specifically, that (1) “none of the statements made by Chief Lohner 

were false, much less defamatory” (Def. Mot. at 42, 43); (2) “it is undisputed that Chief 

Lohner never provided the ‘Fact File’ to New Directions” (Def. Mot. at 43; see also Def. 

Mot. at 44); and (3) “no one from the Baker City Police Department provided the report to 

New Directions” (Def. Mot. at 44). There are issues of fact as to all of these matters that 

preclude summary judgment on Addison’s defamation claim. 

Under Oregon common law, a defamation plaintiff must prove that defendants 

made a false and defamatory statement about plaintiff and published that statement to a 

third party. Neumann v. Liles, 358 Ore. 706, 711 (2016). In general, a defamatory 

statement is one that would, among other things, “tend to diminish the esteem, respect, 

goodwill or confidence in which [the plaintiff] is held or to excite adverse, derogatory or 

unpleasant feelings or opinions against” the plaintiff. Id. In the professional context, a 

defamatory statement is one that falsely “ascribes to another conduct, characteristics or 

a condition incompatible with the proper conduct of his lawful business, trade [or] 

profession.” Id. (citing Brown v. Gatti, 341 Ore. 452, 458 (2006) (internal quotation marks 

omitted). 

There is evidence from which a reasonable jury could infer that Lohner’s statement 

to New Directions concerning Addison was different from what Lohner and Marji Lind 

described in their testimony. Evidence in the record indicates that New Directions, a 

facility specializing in mental health and addiction treatment, would not be dissuaded from 

continuing to employ someone simply because he has “mood swings,” the term Lohner 

claims he used with New Directions in reference to Addison. (See above, pp. 2-4, 12-14.) 

In addition, though Lohner admits that he told Lind about Addison’s “mood swings” 

and expressed concern over Addison working with “vulnerable populations” (Ex. X, 

Lohner Dep. at 134:22-135:16), Lind testified that Addison’s name never even came up 

during the phone conversation. (ECF No. 50, Ex. 117, Lind Dep. at 13:13-14:13.) Lind 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 34 of 60
Page 25 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

also testified that following the discussion with Lohner she contacted Karen Hendricks, 

and said “Hey, I just received a suggestion to update our policy and procedure and the 

process we use for background checks” and that the two discussed getting records on 

local hires and the budgets associated with that. (Ex. EE, Lind Dep. at 16:3-17:6, 17:17-

18:8.) Ms. Hendricks testified that there was no discussion at that time about obtaining 

reports about other New Directions employees, or about changing overall policies and 

procedures. (Ex. BB, Hendricks Dep. at 11:12-15; 13:4-8.) Rather, the discussion she 

had with Ms. Lind and Ms. Selander immediately after Lohner’s phone conversation with 

Ms. Lind was about needing to obtain “a report about Mr. Addison” because “[t]here might 

be something of a concern.” (Ex. BB, Hendricks Dep. at 10:9-11:8.) Ms. Selander testified 

that she directed Ms. Hendricks to obtain records on Addison, but she could not articulate 

why. (Ex. CC, Selander Dep. at 65:8-66:9.) Addison was terminated after New Directions 

obtained and reviewed the fact file and incident report. (Ex. B, Hendricks Dep. at 21:14-

22:23; Exs. P, Q.) 

The material discrepancies between the New Directions witnesses’ testimony, and 

Lohner’s testimony, preclude summary judgment. Nelson v. City of Davis, 571 F.3d 924, 

929 (9th Cir. 2009) (holding that third-party evidence may be introduced to contradict 

party’s testimony, thereby creating an issue of fact; vacating entry of summary judgment 

in favor of police officers and city in § 1983 action). 

But even if the statements were as Lohner claims, they are defamatory. In fact, 

they are defamatory per se. Spoken words that injure a plaintiff in his or her profession or 

trade may constitute slander per se; the plaintiff need not prove specific harm. Neumann, 

358 Ore. at 712 (collecting cases); L & D of Ore., Inc. v. Am. States Ins. Co., 171 Ore. 

App. 17, 26 (2000) (“Defamatory statements that attack a person in their professional or 

employment capacity are actionable per se when they attack specific characteristics that 

pertain to plaintiff's field of employment.”) Here, Lohner admits that he called Addison’s 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 35 of 60
Page 26 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

employers, described the “Caution Flag” that Lohner had placed in Addison’s dispatch 

records, and warned Addison’s employers of his “mood swings.” (Ex. X, Lohner Dep. at 

18:8-20:3, 106:6-110:21, 123:2-125:13, 129:10-131:4, 132:10-133:2.) Lohner also admits 

that he expressed concern to New Directions over Addison working with “vulnerable 

populations.” (Ex. X, Lohner Dep. At 134:22-135:16.) Such statements, made to 

Addison’s employers, attack Addison in his professional capacity and are therefore 

defamatory per se. 

On the issue of whether Lohner provided or directed someone from the Baker City 

Police Department to provide the fact file to New Directions, which is relevant to Count 2, 

evidence was adduced during discovery that indicates that the fact file was not from the 

BCCD and, in fact, came from the Baker City Police Department. (Pltf. Mot. at 6-7; Ex. B, 

Hendricks Dep. at 21:23-22:1, 39:4-24; Ex. F, Sackos Dep. at 14:14-23, 35:17-37:7, 45:9-

47:18, 52:9-24; Ex. L, p. 3; Ex. Q; Ex. R; Ex. Y, Taylor Dep. at 56:24-59:15.) 

Finally, Defendants argue that even if Baker City could be liable on the merits, they 

are entitled to summary judgment on Counts 1 and 2 because the statement made by 

Lohner were discretionary in nature and made within the scope and course of his duties 

and employments, and because the statements were absolutely privileged under Oregon 

law. For the reasons set forth in Sections VII and VIII, Defendants’ arguments fail. 

Therefore, the Court should deny Defendants’ motion for summary judgment on the Fifth 

Claim for Relief.10

VII. LOHNER IS NOT ENTITLED TO ABSOLUTE IMMUNITY ON THE COMMON 

LAW CLAIMS 

The ordinary framework for deciding motions for summary judgment applies to 

 

10 Addison does not understand Defendants to be moving for summary judgment on the 

privilege defenses contained in their Fourth and Twelfth Affirmative Defenses. (ECF No. 

45 at 6, 9.) If they are, issues of fact preclude summary judgment on each of those 

defenses. 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 36 of 60
Page 27 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

motions for summary judgment based on official immunity. Butler v. San Diego Dist. 

Attorney’s Office, 370 F.3d 956, 963 (9th Cir. 2004). However, “officials seeking the 

protection of absolute rather than qualified immunity bear the burden of showing that 

public policy requires an exemption of that scope.” Butz v. Economou, 438 U.S. 478, 506 

(1978) (federal official); Buckles v. King Cty., 191 F.3d 1127, 1133 (9th Cir. 1999) (same, 

in case involving county official). 

A. Issues Of Fact, Concerning Whether Lohner Was Required Or 

Authorized To Contact New Directions Concerning Addison, Preclude 

Summary Judgment 

Lohner invokes the judicially-created doctrine of absolute immunity. Absolute 

immunity is an “extreme remedy.” Lacey v. Maricopa County, 693 F.3d 896, 912 (9th Cir. 

2012) (en banc) (so noting, denying absolute immunity in context of claims against 

sheriff’s department and district attorneys). “The purpose of such official immunity is not 

to protect an erring official, but to insulate the decisionmaking process from the 

harassment of prospective litigation.” Westfall v. Erwin, 484 U.S. 292, 295 (1988). 

In Shearer v. Lambert, 274 Ore. 449 (1976), the Oregon Supreme Court held – 

albeit reluctantly – that executive, legislative and administrative officials at all levels of 

government in Oregon are absolutely immune from defamation lawsuits, but “only if [they] 

publish[] the defamatory matter in the performance of [their] official duties.” Id. at 454-

455. Notably, the Shearer Court reversed the trial court’s sustained demurrer on the 

grounds of absolute immunity because “[i]f this case were to go to trial, it is possible that 

the evidence would show that defendant was neither required nor authorized” to make 

the statements at issue to the audience at issue. Id. at 455. 

Lohner has not carried his burden of persuasion on the absolute immunity 

affirmative defense. Nowhere has he explained how the record in this case demonstrates 

that he was “required” or “authorized” to discuss with New Directions Addison’s purported 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 37 of 60
Page 28 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

“mood swings,” the Caution Flag that Lohner ordered be placed in Addison’s file, or the 

stalking citation. (Ex. X Lohner Dep. at 129:10-131:4.) 

Furthermore, with respect to communications with Kerry McQuisten, Addison’s 

boss at the Baker County Press, there is an issue of fact as to whether Lohner’s 

communications concerning Addison were made in Lohner’s official capacity. 

 (Second Davidson Decl. 

(Sealed), Ex. VV, Lohner Dep. at 183:18-184:12.)11 

Even if Lohner had produced evidence supporting his assertion of absolute 

immunity, there is, at minimum, a genuine issue of material fact for determination by the 

jury with respect to Lohner’s authority to call employers about prospective or current 

employees. The City’s Rule 30(b)(6) designee, Mike Kee, testified that beyond the City 

Charter and the oath of office, there is “no other policy that either gives him [the Police 

Chief] authority or, you know, controls the authority, aside from the laws.” (Ex. LL, Kee 

Dep. at 50:22-52:10.) In response to several requests for production, neither defendant 

produced any document setting forth the Police Chief’s authority. 

On reply, Lohner might cite to what he says is his “job description” (Def. Ex. 104) 

as evidence that he is “required” or “authorized” to call employers about applicants or 

employees. Assuming, arguendo, that Exhibit 104 is a “job description,” the Supreme 

Court has held that the contents of job descriptions are “neither necessary nor sufficient” 

to demonstrate that alleged conduct is within the scope of an employee’s professional 

duties for First Amendment purposes. Garcetti v. Ceballos, 547 U.S. 410, 425 (2006). As 

this is the only evidence Lohner presents that he is authorized to contact employers 

 

11

 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 38 of 60
Page 29 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

unsolicited about their hires as part of his official duties, Defendants’ immunity claim 

fails.12

It also appears that Exhibit 104 is not even a “job description.” Kee testified as the 

City’s designee that the Position Description, marked as Exhibit 13 at Kee’s deposition, 

“looks more like a memo for a vacancy. It outlines the essential job functions. However, 

it’s not a Position Description.” (Ex. LL, Kee Dep. at 32:20-33:16.) Further, the document 

says nothing about contacting employers about applicants or employees. And, as noted 

above, the City’s designee has testified that there is no document, other than the City 

Charter, that “gives [Lohner] authority.” (Ex. LL, Kee Dep. at 51:2-17.) 

The facts of this case closely resemble those in Sizemore v. City of Madras, No. 

02-74-KI, 2005 U.S. Dist. LEXIS 49622, 2005 WL 273006 (D. Or. Feb. 2, 2005). There, 

Judge King denied summary judgment on the Madras mayor’s absolute immunity 

defense. The plaintiff in that case was the former city manager. He alleged, among other 

things that plaintiff’s employment agreement was one of the mayor’s major campaign 

issues, (id. at *3), and that instead of addressing plaintiff’s termination in closed session 

per typical procedures, the mayor made a point of reading aloud in open City Council 

session a defamatory letter that accused the plaintiff of criminal acts, id. at *4. 

The mayor moved for summary judgment on his purported absolute immunity 

defense. Judge King ruled that issues of fact precluded summary judgment: 

“In this case, plaintiff contends that there is at least a jury 

question as to whether Mayor Allen was authorized or 

required to publish charges of criminal conduct against 

 

12 Although not squarely on point, Judge Hernández’s treatment of the claims in Monico 

v. City of Cornelius, No 3:13-cv-2129-HZ, 2015 U.S. Dist. LEXIS 44634, at *27-*27 (D. 

Or. April 6, 2015), provides a useful analysis of whether a public employee’s statements 

are made within the scope of his official duties. 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 39 of 60
Page 30 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

plaintiff, especially where he did so prior to fully investigating 

those charges, prior to asking for or receiving the plaintiff’s 

response to the charges, and prior to conducting a hearing . . 

. . [T]here is a question of fact as to whether Mayor Allen was 

required or authorized to make statements evaluating plaintiff 

to the public and press, and prior to the public [termination] 

hearing on February 13, 2001, especially given the City 

Council’s alleged history of handling personnel matters in 

executive session.” 

Sizemore, 2005 U.S. Dist. LEXIS at *16. 

This Court should reach the same conclusion. Like the Mayor of Madras, Lohner 

may not obtain summary judgment unless he shows that there is no issue of fact with 

respect to the scope of his authority. He cannot rest on the fact that he is the Chief of 

Police to justify his actions. Indeed, that would be particularly inappropriate in a case such 

as this which turns on whether the Chief of Police abused his position. And, like the Mayor 

of Madras, Lohner admits that he did not perform any investigation before making 

allegations. (Ex. X, Lohner Dep. at 62:9-15, 135:17-20.) 

Public policies restricting employers’ use of criminal records – or, even arrests – 

provide an additional rationale for not simply accepting Lohner’s job title as authorization 

to defame employees or job applicants without consequence. The Oregon Legislature 

recently passed a “Ban the Box” law, which forbids employers from denying initial 

interviews on the basis of criminal convictions. HB 3025, Ch. 559 (2015 Reg. Sess.) The 

Oregon Legislature has placed strict limitations on the use of information in the 

possession of the Oregon State Police. (See Ex. OO, Lohner Dep. 93:10-97:22; Ex. QQ.) 

Nevertheless, Lohner believes that he is entitled to call employers – of his own volition – 

and discuss the contents of Baker City police reports even if they contain the same 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 40 of 60
Page 31 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

information that ultimately finds its way to the State Police LEDS database. (Ex. OO, 

Lohner Dep. 64:3:17.) 

Further, in 2012, two years before Lohner called New Directions, the Equal 

Employment Opportunity Commission issued guidance cautioning employers against the 

use of arrest and conviction records in employment decisions. Enforcement Guidance 

No. 915.002 (Apr. 25, 2012): Consideration of Arrest and Conviction Records in 

Employment Decisions Under Title VII of the Civil Rights Act of 1964, available at

http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm (accessed March 9, 2017). 

While Addison does not claim any status protected under Title VII, the rule Lohner urges 

– that he can speak with any employer about the local police contacts of anyone – 

undermines the EEOC protections. 

For the foregoing reasons, the Court should conclude that Lohner has not carried 

his burden of production as to any defense of absolute immunity pursuant to judiciallycreated immunity doctrine. 

B. Oregon Tort Claims Act Immunity Does Not Apply Because Lohner Did Not 

Exercise “Discretion” Within The Meaning Of That Statute 

Lohner cannot avail himself of absolute immunity under the Oregon Tort Claims 

Act (OTCA). As noted above, there are questions of fact concerning whether Lohner 

acted with authorization and, in the case of his communications with McQuisten, whether 

he was acting in his official capacity. 

Relatedly, Lohner’s speech was not “discretionary” within the meaning of the 

OTCA, therefore immunity is unavailable as a matter of law. In his Sixth Affirmative 

Defense (ECF No. 45 at 7 ¶ 17), Lohner alleges that he is immune from liability pursuant 

to ORS § 30.265(6)(c), which provides: 

“Every public body and its officers, employees and agents 

acting within the scope of their employment or duties . . . are 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 41 of 60
Page 32 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

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.” 

‘Discretionary function or duty’ is a term of art: 

“[T]he 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.” 

Westfall v. State, 355 Ore. 144, 157 (2014) (en banc) (emphasis added); see Turner v. 

State, 359 Ore. 644, 652 (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.”” [citation 

omitted].). 

Discretionary immunity does not apply 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.” Id.; see Austin v. Univ. of Or., No. 6:15-CV-02257-

MC, 2016 U.S. Dist. LEXIS 121198, at *33 (D. Or. Sep. 8, 2016) (McShane, J.) (“ORS 

30.265(6)(c) deals with decisions involving public policy and made under the apparent 

authority of law.” [emphasis added].) 

Thus, Oregon appellate courts repeatedly have denied immunity to police officers 

making routine decisions in the course of their day-to-day activities, as opposed to policy 

decisions. Lowrimore v. Dimmitt, 310 Ore. 291, 296 (1990) (denying discretionary 

immunity because “the making of the decision not to pursue [a motorist] does not create 

any departmental policy); McBride v. Magnuson, 282 Ore. 433, 435, 437-38 (1978) 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 42 of 60
Page 33 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

(reversing dismissal where plaintiff alleged that Youth Division officers lacked probable 

cause to place plaintiff’s son in protective custody, and collecting cases). 

The fact that this case involves the Chief of Police, rather than an officer inferior in 

rank, does not alter the analysis: 

“Although policy discretion is more likely to be found at or near 

the level of political responsibility, it is not simply a matter of 

the defendant's office but of the scope and nature of the 

choices delegated to him. Thus a judge was denied tort 

immunity when he issued an arrest warrant without having 

received a sworn complaint as required by law, while 

employees as well as members of the highway commission 

were immune in making a broadly delegated range of choices 

in constructing a highway.” 

Id. at 438 (citations omitted). 

Accepting Lohner’s testimony at face value, the evidence reveals that 

communicating with New Directions and McQuisten were routine, day-to-day choices and 

not the performance of a discretionary function or duty. As discussed above on pages 5 

and 29, no City policy or other document “gives” Lohner authority beyond the City Charter, 

his oath and the laws of Baker, Oregon and the United States. (Ex. LL, Kee Dep. at 51:2-

52:4.) 

Perhaps immunity would be implicated had Addison sued for a choice that Lohner 

made when setting police policy – a role that has been delegated to Lohner. (Ex. LL, Kee 

Dep. at 37:6-40:22); see Turner, 359 Ore. at 644 (“A governmental actor performs 

discretionary functions and duties when exercising delegated responsibility for making 

decisions committed to the authority of that particular branch of government that are 

based on assessments of policy factors, such as the social, political, financial, or 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 43 of 60
Page 34 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

economic effects of implementing a particular plan or of taking no action.”) However, what 

Addison has alleged, and what the record reflects, is that Lohner’s decision to speak with 

Addison’s employers is no different than deciding to pursue a suspect – an activity for 

which the OTCA does not offer absolute immunity. Lowrimore, 310 Ore. at 296; see 

Martinez v. Oregon, No. 6:10-cv-06007-AA, 2012 U.S. Dist. LEXIS 121186, at *22 (D. Or. 

Aug. 27, 2012) (denying OTCA immunity and noting that immunity does not apply to the 

choice to follow or not follow a predetermined policy in the face of a particular set of facts.) 

C. Lohner Has Not Satisfied His Burden Of Showing That Public Policy 

Requires Absolute Immunity 

On summary judgment, the burden is on the official seeking absolute immunity to 

show that the immunity is “justified by overriding considerations of public policy.” 

Martinez, 2012 U.S. Dist. LEXIS 121186 at *17 (quoting Forrester v. White, 484 U.S. 219, 

224 (1988)). This requires a showing of an exceptional situation “where it is demonstrated 

that absolute immunity is essential for the conduct of public business.” Butz v. Economou, 

438 U.S. 478, 507 (1977). 

Defendants have presented no argument or evidence in this respect, therefore 

they are not entitled to summary judgment on absolute immunity. Martinez, 2012 U.S. 

Dist. LEXIS 121186 at *17-*18 (“Defendants fail to carry their burden in establishing their 

entitlement to this defense. Specifically, defendants neglected to adequately brief this 

issue or present any evidence in support of their defense. Thus, nothing in the record 

indicates that defendants were engaged in functions paralleling those of judges or 

prosecutors. Accordingly, there are no overriding considerations of public policy which 

justify the application of absolute executive immunity in the present dispute.”) 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 44 of 60
Page 35 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

VIII. THE DUE PROCESS CLAIMS SHOULD GO TO THE JURY 

The Due Process Clause “forbids the governmental deprivation of substantive 

rights without constitutionally adequate procedure.” Shanks v. Dressel, 540 F.3d 1082, 

1090-91 (9th Cir. 2008). Addison alleges both procedural and substantive due process 

claims. To prevail on a procedural due process claim, a plaintiff must establish: (1) a 

constitutionally protected liberty or property interest; (2) a deprivation of that interest by 

the government; and (3) the lack of adequate process. Heidt, 2016 U.S. Dist. LEXIS 

163996 at *26 (citing Shanks, 540 F.3d at 1090). “To establish a substantive due process 

claim, a plaintiff must, as a threshold matter, show a government deprivation of life, liberty 

or property.” Heidt, 2016 U.S. Dist. LEXIS 163996 at *26-*27 (quoting Nunez v. City of 

Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998)). 

A. Procedural Due Process: Addison Has Made A Prima Facie Showing Of A 

Property Interest In Employment With New Directions For The Remainder 

Of His “30-Day Work Plan” 

To determine whether due process requirements apply to an asserted interest, the 

Court initially looks to the nature of the interest at stake. Merritt v. Mackey, 827 F.2d 1368, 

1370 (9th Cir. 1987) (citing Bd. of Regents v. Roth, 408 U.S. 564, 571 (1972)). “It is 

indisputable that an individual may have a protected property interest in private 

employment.” Merritt, 827 F.3d at 1370. “[T]he right to hold specific private employment 

and to follow a chosen profession free from reasonable governmental interference comes 

within the ‘liberty’ and ‘property’ concepts of the Fifth Amendment.” Greene v. McElroy, 

360 U.S. 474, 492 (1959). Applying Greene, the Ninth Circuit noted in Merritt: 

“[W]here the actions of private individuals operate to deprive 

an individual of his employment, a suit for interference with 

private contractual relationships would lie, but where 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 45 of 60
Page 36 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

government officials are involved, the nature of the interest at 

stake in private employment is a property interest.” 

Merritt, 827 F.2d at 1371. 

A plaintiff must establish the existence of a property interest in continued 

employment by demonstrating a reasonable expectation based upon “state law, rules or 

regulations concerning discharge or express or implied promises.” Id. (citing Roth, 408 

U.S. at 577.) 

Although Defendants rightly point out that at-will employment by itself does not 

give rise to a constitutionally-protected property interest, there is an issue of fact as to 

whether New Directions modified the at-will relationship when it placed Addison on a “30-

Day Work Plan” on November 12, 2014 – the day Lohner called and two days before 

Addison was fired. There had been some confusion concerning whether Addison was 

authorized to provide information in connection with the Article. Accordingly, New 

Directions presented him with a 30-Day Work Plan. (Ex. DD, Deputy Dep. at 27:24-32:1; 

Ex. HH.) When he was presented the 30-Day Work Plan, he was told that his employment 

would continue for a 30-day period so long as he complied with the terms of the 30-Day 

Work Plan. (Addison Decl. ¶¶ 2-3.) The 30-Day Work Plan stated: “We will meet each 

week during our regular scheduled supervision time, which is Mondays at 3:00 pm, to 

review your compliance with this work plan.” (Ex. HH at 2.) The 30-Day Work Plan, which 

was signed by two New Directions supervisors, then had Addison acknowledge above 

his signature: 

“I agree to the above Work Plan conditions and expectations. 

I realize that New Directions Northwest, Inc. will monitor this 

Plan and can extend the work plan as needed per the 

Supervisors. I recognize that failure to comply with these 

conditions and expectations as expressed in the work plan 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 46 of 60
Page 37 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

may result in disciplinary action up to and including 

termination.” 

(Id.) Addison was fired on November 14 and was not given the opportunity to comply with 

this plan. 

The 30-Day Work Plan is similar to another plan that the Oregon Supreme Court 

found had modified an at-will employment relationship. In Bennett v. Farmers Ins. Co., 

332 Ore. 138, 146-149 (2001), the at-will employee plaintiff was placed on a “performance 

plan.” The Oregon Supreme Court reversed the trial court’s grant of JNOV on plaintiff’s 

breach of contract claim because plaintiff had presented trial evidence that he was 

informed that he would not be terminated unless he violated the terms of his “performance 

plan.” 

There thus is an issue of fact as to whether Addison possessed a constitutionally 

cognizable property interest in his employment at New Direction for, at a minimum, the 

30 days encompassing November 12, 2014 to December 12, 2014. Federal Deposit Ins. 

Corp. v. Henderson, 940 F.2d 465 (9th Cir. 1991) controls. In that case, the Ninth Circuit 

held that where a bank president had an at-will employment contract with a ninety-day 

notice provision, he possessed a property interest within the meaning of the Due Process 

Clause, for a ninety-day period. Id. at 475. Because the plaintiff had not been afforded an 

opportunity to challenge his termination, his procedural due process rights had been 

violated. Id. at 476. 

B. Procedural Due Process: Defendants Are Responsible For The Deprivation 

Of Addison’s Property Right In Anticipated Further Employment 

Having demonstrated a property interest of which he was deprived, Addison must 

demonstrate that Defendants deprived him of that interest and a lack of adequate 

process. Heidt, 2016 U.S. Dist. LEXIS 163996 at *26 (citing Shanks, 540 F.3d at 1090). 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 47 of 60
Page 38 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

The framework set forth in Merritt v. Mackey is persuasive in this case, if not 

controlling. Meritt was a counselor at Klamath Alcohol and Drug Abuse, Inc. (KADA), a 

non-profit corporation that contracted with Klamath County and Indian Health Services to 

provide treatment and support to recovering addicts. Merritt, 827 F.2d at 1369. Merritt 

was fired after the defendants issued a report that conditioned further funding of KADA 

on the requirement that Merritt be terminated. Id. at 1370. Merritt sued for deprivation of 

liberty and property under the Due Process Clause. 

The fact that KADA, rather than the government, terminated Merritt was of no legal 

significance: 

“That KADA and not the government officials themselves 

terminated Merritt's employment does not change the nature 

of his protected property interest. Liability under 42 U.S.C. § 

1983 attaches to any person who, under color of state law, 

"subjects or causes to be subjected" any person to a 

deprivation of protected rights. In Johnson v. Duffy, 588 F.2d 

740 (9th Cir. 1978), this court noted that "the requisite causal 

connection can be established not only by some kind of direct 

personal participation in the deprivation but also by setting in 

motion a series of acts by others which the actor knows or 

reasonably should know would cause others to inflict the 

constitutional injury." Id. at 743-44; see also Arnold v. 

International Business Machines Corp., 637 F.2d 1350, 1355 

(9th Cir. 1981). 

[ . . . .] 

It is clear on the facts before us that Merritt was the actual and 

intended victim of the agents' coercive dealings with KADA. 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 48 of 60
Page 39 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

Merritt therefore states a claim under section 1983 that he was 

deprived of his property interest in continued employment 

when the state and federal agents intentionally coerced KADA 

to fire him.” 

Merritt, 827 F.2d at 1372 (9th Cir. 1987).13

It is clear that Lohner knew or should have known that a call from the Chief of 

Police suggesting that New Directions would not have hired Addison if it had checked 

“local records,” pointing New Directions to a “fact file” replete with traffic warning listed as 

“tickets” and not including the fact that the stalking citation had expires, describing 

Addison as having “mood swings,” expressing concern over his working with “vulnerable 

populations,” and discussing the Caution Flag, would “set[] in motion a series of acts by 

others” that would “cause others to inflict the constitutional injury.” Id.

And, Addison was not provided adequate process. Lohner did not offer Addison 

an opportunity to clear his name concerning the stalking citation or any of the other issues 

Lohner addressed with New Directions. Merritt, 827 F.2d at 1372. Indeed, if Lohner’s 

discovery responses are to be credited, he was unaware that the stalking citation had 

been dismissed and that, at the hearing on the citation, the purported victims testified that 

they did not feel threatened. (Ex. M; Ex. X, Lohner Dep. at 62:9-20; Addison Decl., ¶¶ 4-

7.) Like the defendants in Merritt, Lohner’s statements to New Directions were not random 

and Lohner easily could have predicted the injury that would result. Merritt, 827 F.2d at 

1372. 

 

13 The evidentiary record in Addison’s case indicates that, like KADA, New Directions is 

a government contractor – though with Baker County, rather than Baker City. (Ex. A, 

Selander Dep. at 8:2-23.) 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 49 of 60
Page 40 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

C. Substantive Due Process: Addison Has Made A Prima Facie Showing Of A 

Liberty Interest In Not Being Stigmatized Or Blacklisted In His Occupation 

By Government Officials 

There is a due process liberty interest “to choose one’s field of private 

employment.” Conn v. Gabbert, 526 U.S. 286, 291-92 (1999). The liberty interest in 

choosing one’s field of private employment derives from the more general “interest an 

individual has in being free to move about, live, and practice his profession without the 

burden of an unjustifiable label of infamy.” Stretten v. Wadsworth Veteran’s Hospital, 537 

F.2d 361, 366 (9th Cir. 1976). “One’s liberty interest is implicated . . . when the state 

makes a ‘charge against him that might seriously damage his standing and associations 

in his community.’” Vanelli v. Reynolds Shool Dist. No. 7, 667 F.2d 773, 777 n.5 (9th Cir. 

1982) (quoting Stretten, 537 F.2d at 365). The government implicates a citizen’s 

protectable liberty interests “when his or her “‘good name, reputation, honor or integrity’ 

is at stake.’” Roth v. Veteran's Admin. of United States, 856 F.2d 1401, 1411 (9th Cir. 

1988). 

The Ninth Circuit has held that accusations of dishonesty or moral turpitude clearly 

implicate a liberty interest. Roth, 856 F.2d at 1411 (quoting Stretten, 537 F.2d at 365); 

see Heidt, 2016 U.S. Dist. LEXIS 163996 at *31. To decide less clear-cut cases and 

delineate the scope of the liberty interest, the Ninth Circuit looks to the nature of the 

charge. Roth, 856 at 1411.14

 

14 The Ninth Circuit cases appear to have departed from Roth v. VA in that subsequent 

panels of the Ninth Circuit started to say that accusations of dishonesty or moral turpitude 

are the only charges that can implicated a liberty interest. As far as Addison’s counsel 

can tell, there has been no intervening Supreme Court opinion that would alter the 

relevant standard, and no Ninth Circuit case explaining why the more flexible approach 

of Roth v. VA should not persist. Indeed, it appears that the liberty interest is better defined 

by what it is not. As the Ninth Circuit noted in Stretten, commenting on the Supreme 

Court’s holding in Bd. Of Regents v. Roth, 408 U.S. 564 (1972): “[T]his Court has 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 50 of 60
Page 41 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

“The Supreme Court has repeatedly recognized that “the government has a much 

freer hand in dealing ‘with citizen employees than it does then it brings sovereign power 

to bear on citizens at large.’” Heidt, 2016 U.S. Dist. LEXIS 163996 at *27 (quoting Naza 

v. Nelson, 562 U.S. 134, 148 (2011)). 

1. Addison Has Demonstrated A Liberty Interest Sufficient To Survive 

Summary Judgment 

For the sake of brevity (which might, at this point, be futile), Addison incorporates 

by reference the factual discussions concerning Lohner’s statements to New Directions 

set forth above at pages 2-4 and 12-14. The claims in this case should proceed to the 

jury for several reasons. First, there are issues of fact concerning what Lohner and Marji 

Lind discussed during their conversations related to Addison, his employment and the 

“fact file.” 

Second, there is an issue of fact as to whether Lohner accused Addison of 

dishonesty. Lohner testified that he learned from his conversations with Lind that she had 

been unaware that Addison had worked at the Record-Courrier. (Ex. X, Lohner Dep. at 

132:15-133:2.) However, the résumé that Addison submitted to New Directions clearly 

indicates that he had worked there. (Ex. BB, Hendricks Dep. at 36:9-12; Ex. FF.) A 

reasonable jury could infer that Lohner charged Addison with being dishonest on his 

application. 

Third, Lohner’s purported discussion of the stalking incident and Caution Flag 

could be reasonably construed as an accusation of moral turpitude. See Wellington v. 

Lane Cty., 460 F. App'x 690, 692 (9th Cir. 2011) (unpub. memorandum) (using 

“reasonably construed” language). The Ninth Circuit has held that stalking is a crime of 

 

concluded that Roth’s notion of liberty, while imprecise, distinguishes between a stigma 

of moral turpitude, which infringes the liberty interest, and a charge of incompetence or 

inability to get along with coworkers which does not.”

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 51 of 60
Page 42 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

moral turpitude. Latter-Singh v. Holder, 668 F.3d 1159, 1162 (9th Cir. 2012) (stalking is a 

crime of moral turpitude).15 Although Addison was not charged with criminal stalking, a 

rational jury could conclude that a discussion of stalking in the course of a discussion with 

the Chief of Police referred to criminal activity. 

Further, even if the Court does not agree that Lohner accused Addison of 

dishonesty or moral turpitude, the Court should look to the “nature of the charge” that 

Lohner says he made against Addison and conclude that, at a minimum, there is an issue 

of fact as to whether it implicates Addison’s liberty interest in his “good name, reputation, 

honor or integrity.” Roth, 856 at 1411. If Lohner’s testimony is to be credited, he informed 

two employers that Addison was an accused stalker who suffered from mood swings, and 

told New Directions that it should investigate Addison’s “local records” further. 

This was not an accusation of incompetence, which would not implicate the Due 

Process Clause. Rather, if Lohner’s testimony is to be credited, the communications with 

New Directions were designed to prevent Addison from working with the sort of 

“vulnerable population” with which Lohner believes Addison should not work. (Ex. X, 

Lohner Decl. at 114:19-115:3, 134:22-135:16.) As a result of Lohner’s communications, 

Addison now bears the stigma, in a small city, of having been terminated from the 

County’s mental health provider. This is a stigma his Bachelor of Science in psychology, 

and his prior clinical experience in La Grande, will not overcome. Bollow v. Fed. Reserve 

Bank of San Francisco, 650 F.2d 1093, 1101 (9th Cir. 1981) (an actionable stigma is one 

that “seriously damages a person’s reputation or significantly forecloses his freedom to 

take advantage of other employment opportunities.”) Lohner’s overreaching into the 

employment of a private-sector employee violated Addison’s constitutionally-protected 

 

15 Undersigned counsel did not locate cases considering whether violation of Oregon’s 

stalking statute is a crime of moral turpitude. The Latter-Singh court construed the 

California Penal Code. 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 52 of 60
Page 43 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

liberty interests. Heidt, 2016 U.S. Dist. LEXIS 163996 at *27 (quoting Naza v. Nelson, 

562 U.S. 134, 148 (2011) (government has less leeway when dealing with citizens at 

large). 

Lohner has admitted that he will make the same phone call to Addison’s employers 

in the event he applies to work with “vulnerable populations,” which appears to include 

those in need of mental health care as well as school-age children. (Ex. X, Lohner Dep. 

at 133:3-23, 134:22-135:16.) This violates Addison’s Due Process liberty interest. See 

Enquist, 478 F.3d at 997 (blacklisting “to prospective employers effectively excludes the 

blacklisted individual from his occupation” and therefore gives rise to a substantive due 

process claim). 

D. Lohner Is Not Entitled To Qualified Immunity On The Due Process Claims 

Federal Deposit Ins. Corp. v. Henderson, discussed above, established Addison’s 

property interest in his at-will/30-Day Work Plan arrangement. Government officials have 

been on notice since that case, decided in 1991, that interference with such an 

arrangement violates due process. Further, as Merritt v. Mackey reiterated in 1987, “[i]t is 

clearly established that state law or an independent source may create a property right in 

employment protected by the Due Process Clause.” Merritt, 827 F.2d at 1373. 

Further, it was established in this Circuit, at all times relevant to Addison’s claims, 

that a private-sector employee “has a clearly established constitutional right to be free 

from unreasonable government interference with his private employment.” DiMartini v. 

Ferrin, 889 F.2d 922, 927 (9th Cir. 1989), amended, 906 F.2d 465 (9th Cir. 1990), cert. 

denied, 111 S. Ct. 2796 (1991). 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 53 of 60
Page 44 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

E. Lohner Is Not Entitled To Qualified Immunity On Addison’s Request For An 

Injunction Preventing Lohner From Calling Addison’s Prospective 

Employers 

Lohner testified that he would call any future employer for which he believed that 

Addison was unsuited based on Lohner’s view of Addison’s demeanor. (Ex. X, Lohner 

Dep. at 133:3-23.) Addison seeks injunctive relief preventing Lohner from doing so, (ECF 

No. 43, SAC at 138-139, 143, 146-47, 157, Prayer ¶ E), in addition to seeking damages 

for Lohner’s past deprivations of Addison’s Due Process rights. 

As a matter of law, Lohner may not raise qualified immunity in defense to a claim 

for injunctive relief. Hayes v. Bolen, 594 F. App'x 420, 421 (9th Cir. 2015) (unpublished 

memo.) (citing Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 

1989) (vacating district court’s entry of summary judgment in favor of California prison 

official, and against prisoner on his First Amendment claim, on qualified immunity 

grounds)). Thus, at a minimum, Defendants’ motion should be denied with respect to 

Addison’s request for injunctive relief. 

IX. THE BULK OF DEFENDANTS’ PURPORTED EVIDENCE IS INADMISSIBLE, 

AND SOME OF IT WAS NOT PRODUCED IN DISCOVERY 

In support of their Motion, Defendants offer the Declaration of Defendant Wyn 

Lohner. “An affidavit or declaration used to support or oppose a motion must be made 

on personal knowledge, set out facts that would be admissible in evidence, and show that 

the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 

56(c)(4). Lohner’s Declaration does not satisfy these requirements. 

As set forth in more detail in the chart below, Addison objects to several statements 

in Lohner’s Declaration on the grounds that the statements are hearsay or that Lohner 

lacks personal knowledge of the “facts” asserted. Addison also objects to the deposition 

testimony copied and pasted into Lohner’s Declaration because the testimony is not 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 54 of 60
Page 45 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

authenticated and is misleading and inaccurate. Finally, Addison objects to Defendants’ 

Exhibit 113 and asks it be stricken from the record as the document was never disclosed 

to Addison. 

A. Lohner’s Deposition Testimony 

Addison objects to the deposition testimony purportedly copied into Lohner’s 

Declaration because it (1) does not comply with Fed. R. Civ. P. 32, and (2) has not been 

authenticated. See Chao v. Westside Drywall, Inc., 709 F. Supp. 2d 1037, 1051 (D. Or. 

2010) (“When offered at summary judgment, deposition excerpts must identify the names 

of the deponent and the action and must include the reporter's certification that the 

deposition is a true record of the testimony of the deponent.”); Jacobson v. 

Schwarzenegger, 650 F. Supp. 2d 1032, 1045 (C.D. Cal. 2009) (“in order to use the 

depositions on a motion for summary judgment, plaintiff is required to provide the Court 

with a transcript” as required by FRCP Rule 32(c).”). Without the certification, the 

testimony is also hearsay because it is an out of court statement offered to prove the truth 

of the matter asserted, namely what Lohner told Lind. See FRE 801(c).16 

In addition, the deposition testimony in the first paragraph on page 4 of Lohner’s 

Declaration is inaccurate and misleading. Addison’s counsel located a majority of 

testimony in that paragraph at page 127, lines 4-24 of Lohner’s deposition transcript. 

(Concurrently-filed Declaration of Kristen G. Hilton (“Hilton Decl.”), ¶15; Ex. 

NN.) However, the last sentence of the paragraph in Lohner’s Declaration, “but I was 

curious as to what type of a process they did use”, is actually from two pages later in the 

transcript (page 129, lines 3-4) in response to a different question. (Ex. NN.) Counsel 

 

16 Addison does not object to the Court’s consideration of the testimony copied into 

Lohner’s Declaration so long as it is already in the record as part of Exhibit X to the 

Declaration of Clifford Davidson (ECF No. 53) and Exhibit OO to the concurrently-filed 

Declaration of Clifford Davidson, as that testimony has been properly authenticated. 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 55 of 60
Page 46 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

brought this discrepancy to Defendants’ attention and gave Defendants an opportunity to 

correct the record. (Id.) Defendants never responded. (Hilton Decl., ¶ 15.) 

B. Defendants Failed to Disclose Exhibit 113 and Have Not Authenticated It 

Exhibit 113 was never produced to Addison. (Hilton Decl. ¶ 16.) It therefore is 

inadmissible. See Fed. R. Civ. P. 26(a)(1)(A)(ii) (party must produce “a copy . . . of all 

documents, electronically stored information, and tangible things that the disclosing party 

has in its possession, custody, or control and may use to support its claims or defenses.”) 

The failure to previously disclose Exhibit 113, as required by Rule 26, also justifies 

exclusion. Fed. R. Civ. P. Rule 37(c)(1) (when a party violates Rule 26 it “is not allowed 

to use that information or witness to supply evidence . . . at a trial, unless the failure was 

substantially justified or is harmless.”) Counsel notified Defendants that Addison never 

received a copy of Exhibit 113 and asked that Defendants withdraw Exhibit 113 on those 

grounds. (Ex. N.) Defendants failed to respond or offer an explanation for their failure to 

produce this document, which is dated before Addison initiated this lawsuit. (Hilton Decl., 

¶ 15.) Accordingly, Addison requests that the Court strike Exhibit 113 from the record. 

Even if Exhibit 113 had been provided to Addison during discovery, it is still 

inadmissible because Lohner does not authenticate it. “Authentication is a 'condition 

precedent to admissibility . . . .’” Redwind v. W. Union, LLC, No. 3:14-cv-01699-AC, 2016 

U.S. Dist. LEXIS 57793, at *5 (D. Or. May 2, 2016) (internal citation omitted). “In order to 

lay the foundation for receipt of a document in evidence, the party offering the exhibit 

must provide the ‘testimony of a witness with personal knowledge of the facts who attests 

to the identity and due execution of the document and, where appropriate, its delivery.’ 

In other words, the affiant must state specific facts from which the court could infer the 

affiant could identify correctly the document and knows the attachment is a true and 

correct copy of the genuine document.” Blount v. Conn. Gen. Life Ins. Co., No. CV 01-

1341-BR, 2002 U.S. Dist. LEXIS 25553, at *7-8 (D. Or. July 2, 2002), quoting United 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 56 of 60
Page 47 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

States v. Dibble, 429 F.2d 598, 602 (9th Cir. 1970). Here, Lohner states that “Exhibit 113, 

is a face sheet that was printed at the Baker City Police Department about another person 

on October 31, 2014” (Lohner Decl. at 8), but does not explain who printed it the 

document, how he knows it was printed at the Baker City Police Department on that date, 

or what familiarity he had / has with the software used to print the document. As a result, 

he has not established personal knowledge of this document and cannot authenticate it. 

Thus, it is appropriate to strike Exhibit 113 from the record on this basis, as well. Beyene 

v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988) (“[D]ocuments which 

have not had a proper foundation laid to authenticate them cannot support a motion for 

summary judgment.”). 

C. The Court Should Exclude Other Statements in Lohner’s Declaration 

Lohner asserts that his declaration is “based on [his] personal knowledge of the 

facts contained herein.” (Lohner Declaration at 2.) However, “[i]t is not sufficient for the 

declarant to state that he or she has personal knowledge of the facts stated. Rather, the 

declarant must state facts showing his or her connection to the matters stated, 

establishing the source of the information.” Brew v. City of Emeryville, 138 F. Supp. 2d 

1217, 1227 (N.D. Cal. 2001) (striking declaration offered in support of motion for summary 

judgment). A review of the statements in Lohner’s declaration demonstrates that he lacks 

personal knowledge of many of the facts he asserts. In addition, Lohner’s testimony 

(Lohner Decl. at 9-11) regarding what another police officer said to him and the traffic 

warnings or citations given by other police officers is hearsay. FRE 801(c). For ease of 

reference, the statements and corresponding objections are set forth in the following 

table. 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 57 of 60
Page 48 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

STATEMENT IN LOHNER DECL. OBJECTION 

New Directions is a non-profit organization 

that serves Baker County with drug, 

alcohol, and gambling addictions services, 

as well as drug and alcohol residential 

treatment and prevention. In July of 2014, 

New Directions was granted the contract 

from Baker County to become the new 

Community Mental Health Program in 

Baker County. (Page 2, ¶ 3.) 

Lohner lacks personal knowledge of these 

matters. FRE 602; Schulz v. Visionary 

Props., No. 3:14-cv-01129-AC, 2015 U.S. 

Dist. LEXIS 160756, at *10-11 (D. Or. Dec. 

1, 2015) (“The Ninth Circuit requires 

affidavits offered in support of summary 

judgment be based on personal 

knowledge” and a “witness may testify to a 

matter only if evidence is introduced 

sufficient to support a finding that the 

witness has personal knowledge of the 

matter.”). According to his declaration, 

Lohner is “the Chief of Police for the Police 

Department of Baker City, Oregon” and 

has been “employed by Baker City as a 

police officer since 1999”; he is not 

employed by New Directions or Baker 

County. 

. . . and any decision that New Directions 

has made concerning Brian Addison were 

made without any input from me. 

(Page 7, ¶ 1.) 

Lohner lacks personal knowledge of the 

reason(s) for any decision that New 

Directions has made concerning Brian 

Addison. FRE 602. 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 58 of 60
Page 49 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

STATEMENT IN LOHNER DECL. OBJECTION 

During those depositions, New Directions 

produced a copy of the documents that 

had been provided to New Directions at 

the Baker County Sheriff's Office on 

November 14, 2014. Attached as Exhibit l 

01, is a true and correct copy of those 

documents that New Directions produced 

during the depositions. The Bates-stamps 

located at the bottom of each page in the 

right-hand corner has the stamp ND. This 

was used by New Directions to show that 

the documents came from New Directions.

(Page 7, ¶ 2.) 

Lohner lacks personal knowledge of any 

documents that may have been produced 

by New Directions, including where New 

Directions obtained the document and 

when. FRE 602. Lohner also lacks 

personal knowledge of the bates-label 

used by New Directions. 

Because Lohner lacks personal 

knowledge of Exhibit 101, the document is 

not properly authenticated. FRE 

901(b)(1); United States v. Dibble, 429 

F.2d 598, 602 (9th Cir. 1970). 

This date reflects the date that the 

documents were printed at the Baker 

County Sheriff's Office. 

(Page 7, ¶ 3.) 

Lohner lacks personal knowledge of this 

matter. FRE 602. There is no evidence 

that he obtained the documents, and he 

does not work at the Baker County 

Sheriff’s Office.

This means that the date the document 

was printed by the Baker County Sheriff's 

Office was Friday, November 14, 2014. 

(Page 7, ¶ 4.)

Lohner lacks personal knowledge of this 

matter. FRE 602. There is no evidence 

that he obtained the documents, and he 

does not work at the Baker County 

Sheriff’s Office.

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 59 of 60
Page 50 – PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MSJ

SUSSMAN SHANK LLP, ATTORNEYS AT LAW 

1000 SW BROADWAY, SUITE 1400, PORTLAND, OREGON 97205-3089 

TELEPHONE (503) 227-1111 | FACSIMILE (503) 248-0130 

STATEMENT IN LOHNER DECL. OBJECTION 

This address is the address and phone 

number of the agency that prints the 

document. 

(Page 8, ¶ 1.) 

Lohner lacks personal knowledge of this 

matter. FRE 602. He did not create or 

maintain the software that generates such 

documents.

. . . no one from the Baker City Police 

Department provided Exhibit 101 to New 

Directions 

(Page 8, ¶ 2.) 

Lohner lacks personal knowledge of this 

matter. FRE 602. 

X. CONCLUSION 

Issues of fact preclude summary judgment and immunity of any sort. Defendants’ 

motion should be denied. 

Dated this 24th day of March, 2017. 

 SUSSMAN SHANK LLP 

 By /s/ Clifford S. Davidson 

 Clifford S. Davidson, OSB No. 125378 

 Kristen G. Hilton, OSB No. 151950 

 Attorneys for Plaintiff Brian Addison 

 

Case 2:15-cv-02041-SI Document 61 Filed 03/24/17 Page 60 of 60