$755000 verdict against University of Oregon in police whistleblowing case – OregonLive.com
A federal jury awarded a former University of Oregon public safety officer $755,000 Friday after finding that UO Police Chief Carolyn McDermed and a top lieutenant retaliated against the young officer for blowing the whistle on department wrongdoing.
The eight-person jury sided with ousted UO public safety officer James Cleavenger, who said the chief and Lt. Brandon Lebrecht vindictively retaliated against him for speaking out about department bias and ineptitude. Top university officials, including the No. 2 in-house lawyer, were in on the decision to punish him.
“This is a victory for every honest police officer,” said Jason Kafoury, Cleavenger’s lead lawyer. “The jury today honored and enforced an officer’s right to speak freely on matters of public concern, regardless of whether their superiors approve.”
University of Oregon spokesman Tobin Klinger said university leaders are disappointed with the jury’s decision and will review it to determine whether to appeal it.
The jurors found McDermed violated Cleavenger’s First Amendment rights when she fired him in 2012, then again in 2014 when she and Lebrecht created a huge, potentially career-ending dossier designed to prove Cleavenger was too untruthful to testify in court.
Ironically, however, jurors rejected McDermed’s account of events as she presented them under oath in favor of Cleavenger’s sworn testimony.
McDermed testified that she ordered creation of the dossier because she was worried Cleavenger was a danger to himself and other officers, not because he complained to her superiors and filed a lawsuit that made her and her department a national laughingstock. Jurors unanimously found that his filing of the lawsuit, along with his earlier complaints, were a driving factor in her decisions to punish him.
That lawsuit, filed in fall 2013, portrayed the University of Oregon police department as a slipshod operation rife with recriminations and junior high antics.
From it, with help from Gawker and the Huffington Post, the nation learned that, under Lebrecht’s direction, swing-shift UO safety officers wasted hours of work time creating a vulgarly named “Bowl of Dicks” list of people and things the department disliked, from Hillary Clinton to campus bicyclists.
Cleavenger also brought to light the department’s petty, vindictive management style and the lack of professional training and record-keeping. Although he had been UO’s most productive safety officer, McDermed eventually ordered Cleavenger, via an intermediary, not to report any crimes except felonies – an order that appears to violate a high-profile federal campus safety law.
In his closing arguments, Kafoury told the jurors they needed to decide “the right of a public safety officer to be critical of things in their department versus just shutting up and falling in line. Which is healthier for our society?”
Jurors deliberated for a day and a half before concluding McDermed and Lebrecht illegally retaliated against Cleavenger for his protected speech about department wrongdoing. They awarded him $650,000 in economic damages for the hit to his actual and potential law enforcement career plus $105,000 in punitive damages.
They decided Lebrecht incurred $51,000 worth of the punitive damages, McDermed was responsible for $36,000, and then-Sgt. Scott Cameron for $18,000.
Cameron, whom McDermed said she has since fired for sexually harassing other employees, wrote Cleavenger up for performance problems when he supervised him in 2011. Jurors found Cameron was motivated to punish Cleavenger because Cleavenger, while in law school before before taking the UO public safety job, spoke out against UO public safety officers being allowed to use Tasers.
Before the case went to trial, judges dismissed the University of Oregon as a defendant, because state agencies can’t be sued in federal court, and turned down some of Cleavenger’s other claims of mistreatment, Klinger noted. Cleavenger now has a lawsuit against the university pending in state court.
During hours of testimony and cross-examination, McDermed testified that she bore Cleavenger no ill will and that she had planned to retrain and help the new officer until higher-ups suggested firing him might be a better choice.
She insisted on the stand that she had noble motivations for trying to get Cleavenger declared too dishonest to testify in court, a maneuver known as a “Brady listing,” right after an arbitrator ruled she was wrong to fire him. The arbitrator said his errors were minor and merited a three-day suspension, not the loss of his job.
McDermed said public safety concerns were the sole reason she submitted the Brady list dossier. She testified that she didn’t do the same thing to an employee she fired for creating a fraudulent parking pass to get years free parking because she did not equate fraud with dishonesty.
Kafoury said of the verdict: “This is a loud and clear message that the University of Oregon needs to get new leadership in that police department.”
Top UO human resources officials were intimately involved in the decision to fire Cleavenger, and McDermed testified that Douglas Park, then UO’s No. 2 in-house lawyer, knew she was going to try to get Cleavenger on the Brady list. Since then, Park was promoted on an interim basis to be UO’s top in-house lawyer, but he is slated to return to the No. 2 job when a permanent successor takes over in about a week.
Kafoury said, “It’s a disgrace that the attorneys for the university were in on the decision to Brady list and ruin Clevenger’s career” while defending UO against a lawsuit alleging retribution for whistleblowing.
Cleavenger lost two other part-time public safety officer jobs when UO fired him. A graduate of the UO law school, he now works as law clerk for U.S. District Judge Michael McShane, one of 20 federal district judges in Oregon.
To prevent a conflict, U.S. District Judge David Carter, who normally presides over Ninth Circuit cases in Santa Ana, ran the three-week trial in Portland.
Mark McDougal, Clevenger’s other lawyer on the case, said the jury’s $755,000 award is a big one, particularly because jurors knew a law school grad with a federal clerkship “is somebody who is quite capable” of bouncing back from a job loss.
“The verdict was largely to say, ‘Hey, you’re way out of line,'” McDougal said. “They lost and they lost big.”
Klinger said the university’s insurance, not tuition money or the individual employees, will pay the damages.
The judge will also order UO to pay Cleavenger’s attorneys fees, and McDougal said those will run into the hundreds of thousands of dollars. The university paid well-known Eugene law firm Harrang Long to represent it in the case.
— Betsy Hammond