OpenJurist

917 F2d 28 Leeds v. E Sexson

917 F.2d 28

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Michael D. LEEDS, Plaintiff-Appellant,
v.
James E. SEXSON, Daniel J. Kennedy, Chris L. Wheeler, Robert
W. Smith, and Josephine Hawthorne, William H.
Young, Defendants-Appellees.

No. 89-35317.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 1990.
Decided Oct. 25, 1990.

Before GOODWIN, Chief Judge, and FLETCHER and FERNANDEZ, Circuit Judges.

1

MEMORANDUM*

2

Leeds appeals the district court's entry of judgment notwithstanding the verdict after a trial in which the jury found that Kennedy and Wheeler, state officials, each violated Leeds' first amendment rights and procedural due process rights. He appeals as well pretrial grants of summary judgment in favor of Kennedy and Wheeler on other issues and in favor of defendants Sexson and Hawthorne. Finally, Leeds appeals the district court's rulings on injunctive relief, punitive damages, and certain discovery and evidentiary questions.

3

We reverse the district court's entry of jnov on the first amendment claim against Kennedy and the district court's refusal to allow the question of punitive damages to go to the jury on that claim. We remand the question whether injunctive relief should be granted for that claim. We affirm the district court in all other respects.

FACTS

4

Leeds was an employee in the Oregon Water Resources Department (WRD) from 1980 until August of 1982. His job title was Program Executive A (PEA), also referred to as "enforcement specialist." The job description for approximately 60% of his job was:

5

Directs Watermasters in the administration and enforcement of well construction standards; orders Water Well Contractors and Drillers to repair substandard wells; directs the preparation of evidence for administrative hearings and criminal trials of Landowners, Water Well Contractors, and Drilling Machine Operators suspected to be in violation of the General Well Construction Standards; prepares administrative orders for the director's signature.

6

By most accounts, Leeds performed well in his job. His boss during most of his two and one-half year tenure, Al Petska, once recommended that he receive an "extra meritorious" pay raise. During a budget crisis in 1982, Leeds was laid off, as were four others in his department. He was told that there were insufficient funds to support his position.

7

Initially, Leeds seemed to have believed he was laid off for budgetary reasons. He quietly accepted his fate--until May of 1983. In May, appellee Sexson, then the two-term Director of the Oregon Water Resources Department, was facing a reconfirmation battle in the Oregon Senate. (Under Oregon law, certain officials appointed by the governor must be reconfirmed by the senate.)

8

Leeds opposed Sexson's reconfirmation. On May 25, 1983, Leeds sent to the committee holding hearings a written statement explaining his opposition to Sexson. The committee invited Leeds to testify in person. Leeds accused Sexson of being too lax in enforcing Oregon's well construction and maintenance laws, especially in enforcing them against the big well drillers--in particular, those big drillers belonging to the Oregon Drillers Association (ODA), a trade group and lobby. Leeds told the Senate that he (Leeds) was much more zealous in his efforts to uncover violations and urge enforcement of the laws than were his predecessors who held the Program Executive A position. He accused Sexson of firing him not because of budget cuts, but because of pressure from the ODA. Leeds also charged that appellee Dan Kennedy (who was Leeds' boss during the last three months of his employment) was a tool of the ODA and that Kennedy had promised the ODA that he would prosecute a driller who had been critical of the ODA simply to provide the ODA with some entertainment at its upcoming convention.

9

The senate voted on July 5 not to reconfirm Sexson. Around the same time as the senate hearings, the legislature voted to restore funds to the WRD, earmarking sufficient funds to support a PEA position, effective July 1, 1983. The funds could not be spent until July 26, when the governor signed the bill. It is undisputed that the legislature's funding of a position does not carry with it a mandate to hire someone to fill it. Administrators have some discretion to spend the funds on a different position with equal or less pay, or not to fill the position at all. Also, under state law, laid off employees have certain rights to be considered ahead of other applicants for their position, assuming it exists, for two years after the date of their layoff.1

10

On July 7, 1983, two days after Sexson was unseated, Leeds wrote a letter to appellee Wheeler, the Acting Director of the WRD, stating

11

on Friday, July 15, I intend to file a claim against the Department for reinstatement as a Program Executive and to seek damages for my unlawful dismissal.... I am confident of producing sufficient evidence to prevail in this matter and since neither the Department nor Jim Sexson will benefit from dragging this out any longer, I suggest that if you feel the Department can settle this internally you contact me by ... July 13.

12

Wheeler, after consulting with the state attorney general's office and with Kennedy, responded by sending Leeds a letter stating a terse justification for the layoff. He enclosed with the letter a copy of some grievance procedures. The explanation for the layoff in its entirety was that "From this review [of Leeds' file], it appears that the Department followed correct procedures throughout your layoff." Leeds compared the explanation given with the enclosed procedures (Oregon Personnel Policy 8.2.1.2) and figured that his claim was denied on the merits and not because it was untimely filed.

13

After receiving Wheeler's short dismissal letter, Leeds, following the procedures set forth in the document accompanying the letter, sent a letter to the Executive Department, appealing Wheeler's ruling. The Executive Department received the letter of appeal on July 22, 1983, a Friday. The Executive Department in its August 3 decision said nothing about the merits of Leeds' complaint, dismissing the complaint on the procedural ground that it was not timely made to Wheeler. Relying on a "management service grievance procedure," which gave an aggrieved employee 30 days to complain about a wrongful firing, the Executive Department found that Leeds must have had facts indicating that the budget reason for his layoff was bogus as early as May 25, 1983, the date that he wrote to the committee holding hearings on the Sexson nomination. Leeds' letter to Wheeler was written 42 days after that date. Leeds attempted to prove at trial, and he asserts on appeal, that there never was a "management service grievance procedure" in effect when he was laid off or when he began to suspect that the layoff was for improper reasons. He believes that Kennedy, Wheeler or appellee Hawthorne, the assistant attorney general who defended the Department against Leeds' charges--or all three--devised a scheme to produce a phony grievance procedure to give to the Executive Department so that Leeds' claim would never be heard on the merits.

14

Leeds then appealed the Executive Department's ruling to the ERB, which granted Leeds a hearing on his claim. During the four-day hearing, Leeds attempted, among other things, to prove that the management service grievance procedure document was phony. He argued that there was no written time limit until he appealed to the Executive Department. As proof, he submitted evidence showing that on July 25, the first working day after the Executive Department received his appeal, Pamela Strawn, a woman with various administrative duties including the handling of employment matters, typed a management service grievance procedure on the Wang computer. Strawn testified that she was merely retyping verbatim an old, non-computerized copy of the procedure so that a new copy could be put on the word processor. She typed the document that day perhaps because she was asked to do so by Hawthorne. The only extant copy of a management service grievance procedure pre-existing the one that Strawn typed provides for 60 days, not 30 days, to file a grievance, although it is unclear whether that procedure was in effect after 1981. Strawn testified that she threw away all of the old copies of the document that she retyped.

15

The ERB denied Leeds' appeal on October 18, 1983. In its written decision, it held that Leeds waited too long before grieving his dismissal. Although it seemed to agree with the state that there was a grievance procedure in effect, it avoided the issue of what the precise time limit was for grieving. The ERB found that Leeds should have suspected that his layoff was not for a proper purpose in October of 1982, when he was told that representatives of the ODA were taking credit for his layoff. The ERB held that nine months was too long for an employee to wait to grieve as a matter of policy, and it thus denied his claim, not because of his failure to follow any particular published time limit, but because of laches. Leeds does not claim that the ERB's promulgation of a general laches defense for the first time in his case denied him due process or that the ERB's procedures were otherwise defective. He argues only that the ERB was given false information concerning the grievance procedure by Kennedy and Hawthorne.

16

After the ERB denied Leeds' claim to reinstatement as a remedy for the alleged wrongful discharge, Leeds then sought to enforce his statutory recall rights, which he would be entitled to enforce even if the layoff had been perfectly proper. On October 24, 1983, Leeds walked into the office of the Bureau of Labor (BoL) to assert that he should have been recalled. Hawthorne's notes reflect that on that day, she talked to Kennedy "re Leeds hiring."

17

On November 16, 1983 Hawthorne again spoke on the phone with Kennedy. Hawthorne's notes of the conversation have Kennedy saying, "Leeds has right to position if same classification."

18

On December 28, 1983 Donna Broadsword, an investigator with the Bureau of Labor, after talking to Hawthorne (who in turn got her information from Kennedy), concluded that Leeds' PEA position had been eliminated. On December 29, Leeds conducted his own investigation and discovered that his position was still listed on state records. Upon discovering this, he went into Kennedy's office and asked for an explanation. Kennedy told him that there was a proposal to abolish his position in August, but that "it was not done." He said they were doing it "this very moment." Leeds then asked the Bureau of Labor to investigate whether it had been lied to by Kennedy and Hawthorne concerning the position change. In January of 1984, while BoL was investigating, the position officially was abolished. In July of 1984, BoL denied Leeds' claim to be rehired on the grounds that it had no jurisdiction to entertain his case, since he was not an "employee" and since the BoL's statutory jurisdiction extended only to "employees."

19

Leeds filed suit in federal district court on July 1, 1985. He has abandoned several claims since the time he first filed. The claims he still asserts are the following:

20

1. That Kennedy violated his first amendment rights by denying him recall rights in retaliation for his testimony before the legislature.

21

2. That Wheeler violated his first amendment rights.

22

3. That Kennedy, Wheeler, and Hawthorne interfered with his procedural due process rights by knowingly giving false evidence and testimony to the ERB and the BoL.

23

4. That Sexson wrongfully dismissed Leeds because of pressure from the ODA and not because of his performance.

24

5. That Sexson violated plaintiff's first amendment rights in refusing to rehire him because of his testimony before the legislature.

DISCUSSION

A. THE SUBSTANTIVE CLAIMS

25

1. The First Amendment Claim Against Kennedy

26

Kennedy's theory of the case is that Leeds' testimony had nothing to do with the decision to divide up the duties that Leeds had performed in his position as PEA. Kennedy does not argue (nor did he argue at trial) that Leeds' testimony provided a justifiable reason not to rehire him--for example because it was false or because it would inhibit the effectiveness of the Department. The government, when it acts in its role of employer, can punish speech for a broader array of reasons than it can in other situations. See Pickering v. Board of Education, 391 U.S. 563, 568 (1968). But since Kennedy is not arguing--even in the alternative--that Leeds' testimony provided a legitimate reason not to rehire him, we treat Leeds' testimony as fully protected speech.

27

Our standard for determining if jnov is appropriate is

28

whether, viewing the evidence and reasonable inferences therefrom in the light most favorable to the non-moving party and without weighing witnesses' credibility, a reasonable jury could have reached but one conclusion as to the verdict.

29

Marquis v. Chrysler Corp., 577 F.2d 624, 639 (9th Cir.1978). In order to determine whether the facts justify the verdict, the instructions to the jury must be reviewed. The instructions were as follows:

30

21. Plaintiff claims that the evidence in this case shows that he expressed political opinions or engaged in political activities, which are protected by the First Amendment to the United States Constitution, and that thereafter, plaintiff was not recalled to a position he had held as Program Executive A which was refunded.

31

Plaintiff has a right under the First Amendment to engage in political activities and to express political opinions.

32

Plaintiff was an employee who had a right to be considered for re-employment if the position he had held as Program Executive A were refunded by the legislature and if the Water Resources Department decided to refill that position. The mere fact that the position was not refilled does not establish his claim.

33

In order for the plaintiff to prevail on his claim that his First Amendment rights were violated, you must find that the plaintiff's protected First Amendment conduct--that is, his testimony before the Oregon Legislature--was a substantial factor or, to put it in other words, that it was a motivating factor of either of the defendants resulting in the decision not to refill the position.

34

22. Defendants had a right to consider reorganization of any program within the Water Resources Department based upon their assessment of the needs of the Water Resources Department. The fact that plaintiff testified before the Legislature does not diminish this right.

35

23. Even if you find that plaintiff has met his burden of proof, defendants are still entitled to judgment in their favor if they prove, by a preponderance of the evidence, that any decision they made which affected plaintiff's employment would have been reached even in the absence of any conduct by plaintiff you find to be protected by the First Amendment.

36

These instructions on the burden of proof accord with the Supreme Court's decision in Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 287 (1977) and were not objected to.

37

Our review of the trial transcript and the exhibits leads us to conclude that the jury could reasonably have found that Kennedy refused to rehire Leeds because of Leeds' testimony before the legislature. Leeds' letter to Chris Wheeler on July 7 notified Kennedy that Leeds was still interested in returning to work. Wheeler testified that he discussed the letter with Kennedy and that Kennedy drafted the response that went out under Wheeler's name.

38

The jury could have found further that some time thereafter, Kennedy determined to split up Leeds' old position and reorganize his responsibilities in order to prevent Leeds from returning. Hawthorne's notes of a telephone conversation that she had with Kennedy on November 16, 1983 provide plausible evidence in support of Leeds' claim. After discussing whether Leeds' position had been re-funded by the legislature, Kennedy and Hawthorne discussed Leeds' rights. The notes reflect that Kennedy said, "If we fill at that position, he [Leeds] has right of first refusal if same classif[ication]." The jury could reasonably have inferred that as of November 16, it was still an open question whether to fill Leeds' position. Had a decision already been made, argues Leeds, Kennedy would have said something like, "We have already decided to eliminate Leeds' position; he has no rights because there is no position at his classification level."

39

The appellees argue that the decision had been made at the time of the phone conversation, if not in 1982, then at least by August of 1983. In support of this argument, they note that on August 11, a notice had been posted soliciting applications for an Engineer Tech 2, who was to perform investigations.2 In response, Leeds argues that the PEA did relatively little investigative work but rather supervised the watermasters who did investigations. He argues that there would be nothing inconsistent about a fully-funded department having an Eng Tech 2 and a PEA. He argues further that none of the paper work done by Kennedy and submitted to the legislature shows a connection between the elimination of the PEA and the hiring of an Eng Tech 2. The only evidence of the connection, he argues, is Kennedy's testimony. The jury could have disbelieved Kennedy and reasonably found that the question whether to hire a PEA was still open when Kennedy spoke with Hawthorne. Alternatively, it could have found that the placing of the ad on August 11 was fully consistent with a retaliatory motive, since by August 11, Kennedy already knew that Leeds wanted his job back.

40

In addition to finding that Leeds' job was still available, the jury also could have found that because Leeds had been performing well in his job, a substantial reason for Kennedy's failure to rehire him was that Kennedy was offended by Leeds' testimony to the legislature. Kennedy had written two memos to the Department's files commenting upon Leeds' testimony. The memos accused Leeds of "lies," of having "limited legal ability," and of endangering the Department's defense of a certain case.

41

Finally, two of the other four Department employees laid off at the time of Leeds' layoff were recalled in the summer of 1983 pursuant to the established recall procedures. A third employee also got a job with the Department, although he got it through competitive application rather than through exercising his recall rights. Neither party knows what happened to the fourth person laid off.

42

Leeds relies on one other item in Hawthorne's notes, which we do not believe adds to his case. Her notes have Kennedy saying, "Primary th[in]g is confidence--th[in]gs surface[d] since he left." Leeds argues that the jury could reasonably have inferred that "things" referred to his testimony against Sexson, which, of course included criticisms of Kennedy. But as the appellees point out in their brief, immediately after the sentence quoted, Hawthorne's notes continue, "DK's [Kennedy's] posit[ion] [from the time] he [Leeds] left, things began to surface that showed serious problems--by fall or early winter of 1983." Appellees argue that from the context of the notes, the reference to fall or early winter of 1983 must mean the fall or early winter of 1982. We agree with the appellees on this point. The notes were taken of a conversation of November 16, 1983, and it is highly improbable that Kennedy was referring to events contemporaneous with the conversation. Nonetheless, this only means that Leeds cannot rely on the "confidence" remark. It does not mean that the jury was required to believe Kennedy.

43

Even if the "confidence" remark is ignored, Leeds still has established a plausible scenario: Kennedy, at least in part offended by Leeds' testimony to the Oregon Senate, was determined not to allow Leeds to get his job back--even if that meant juggling some of the positions in the agency.

44

In his jnov decision, the trial judge rejected this scenario and accepted Kennedy's version of the events. The judge believed that Kennedy had decided around December of 1982 (seven months before Leeds' testimony before the legislature) to reorganize the assignment of responsibilities within the agency. The judge believed that this decision was made because Kennedy felt that the PEA job description and the duties that Leeds performed pursuant to that description "involved an unacceptable amalgamation of investigative, prosecutorial, and decision-making functions in one person." The judge believed that the assignment of some of Leeds' duties to Pamela Strawn on December 1, 1982 proved that Leeds' speech could not have been the basis for the actions taken in 1983.

45

There are three errors in the judge's reasoning. First, during Leeds' cross-examination of Kennedy, Kennedy acknowledged that most of Strawn's duties were previously performed by a woman named Harris and that only an insignificant portion of Leeds' responsibilities were assigned to Strawn. Thus, it is far from clear that as early as December of 1982, there were plans to do away with Leeds' position. Second, Strawn was assigned those duties at a time when several members of the agency had been laid off. The jury could reasonably have inferred that it would be natural at a time like that to reassign some duties.

46

Finally, the jury was instructed that even if the reorganization of the Department was undertaken in part to retaliate against Leeds, Kennedy would not be liable if he could prove that the Department would have been reorganized even absent the improper motive.

47

The district judge erred when he accepted Kennedy's explanation for the redistribution of the duties of the PEA. His error was in treating the question as if Leeds had the burden of proving lack of causation. If the jury believed that a substantial reason for the Department's refusal to rehire Leeds was his senate testimony, the burden was on Kennedy to prove that Leeds would not have been rehired in any event because the job he previously occupied was too powerful and had to be eliminated. Since Kennedy had the burden of proof, the judge should not have treated as conclusive his testimony that the position was divided up to eliminate the amalgamation of investigative, prosecutorial, and adjudicatory functions in one position. Even had Kennedy's testimony not been impeached, the judge should not have treated it as conclusive since, of course, the jury would be entitled to disregard it. But it was impeached. The following colloquy took place at trial:

48

Leeds: Now you said you felt uneasy with one person doing the whole thing, as far as investigating, and holding hearings, and writing orders. And I believe you gave an example of a policeman who gives a ticket being the judge. Do you remember that?

49

Kennedy: Yes.

50

Leeds: Mr. Kennedy do you know of a single example where I investigated a case and then held a hearing on it myself?

51

Kennedy: No, I can't think of one off hand.

52

Moreover, Al Petska testified that Leeds generally did not do the investigations himself (those were done by "watermasters" under Leeds supervision) and that he never investigated a case in which he conducted a hearing. A reasonable jury could have disregarded Kennedy's explanation for the division of responsibilities and could have believed that it was undertaken to freeze Leeds out of his position.

53

Since the jury could have found that Kennedy refused to rehire Leeds in retaliation for his testimony, we reverse the jnov against Leeds. And since in order to prevail, Leeds had to show intentional retaliation, the district court erred in refusing to allow the issue of punitive damages to go to the jury. See Smith v. Wade, 461 U.S. 30, 51 ("reckless or callous disregard for the plaintiffs rights, as well as intentional violation of federal law, should be sufficient to trigger a jury's consideration of punitive damages") (emphasis added). Leeds is thus entitled to another trial on the issue of punitive damages. Since the jury has discretion not to award punitive damages, see Wade at 52, the state can again offer evidence suggesting that Kennedy was motivated in part by a legitimate desire to divide the duties of the former PEA. The jury is, of course, precluded from finding that this was the dominant motive, but in a mixed motive case, the question of the extent to which the defendant's motive was legitimate should be presented to the jury so that it can exercise its discretion in an informed manner.

54

We do not decide the question whether Leeds is entitled to injunctive relief. These issues should be decided by the district court on remand.

55

2. The First Amendment Claim against Wheeler

56

There was absolutely no evidence presented at trial that, after the day of Leeds' testimony to the legislature, Wheeler was involved in any decisions having to do with the status of Leeds' old PEA position. Leeds does not seriously contest that the evidence of Wheeler's involvement presented at trial was inadequate to sustain the jury's verdict against him. Rather, he argues that had the judge not disallowed his conspiracy instruction, the evidence adduced might have been sufficient to make a case against Wheeler. But the only evidence connecting Wheeler to a conspiracy with Kennedy was that Wheeler was Kennedy's boss. Such evidence, standing alone, does not make out a claim for conspiracy. See Mosher v. Saalifeld, 589 F.2d 438, 441 (9th Cir.1978). The district court was correct in granting a jnov on this claim and in refusing to instruct on conspiracy.

57

3. The Claims Against Kennedy, Hawthorne, and Wheeler for Violating Leeds' Procedural Due Process Rights

58

Leeds claims that Kennedy ordered a phony "management service grievance procedure" to be created so that Leeds' administrative appeals3 would be dismissed on procedural grounds and not heard on the merits. He claims also that Kennedy deliberately lied to the Bureau of Labor in telling the Bureau that Leeds' position had been eliminated. He claims as well that Hawthorne and Wheeler had a role in this alleged coverup.

59

As the district court found, Leeds' claims fail for lack of causation. Even if Kennedy did falsify the grievance procedure, the ERB would still have refused to address the merits of his claim. The ERB decided Kennedy's case on the principle of laches, and nothing that Kennedy might have done differently would have changed that result. Under the stated rationale of the ERB decision, a frank admission by Kennedy that there was no grievance procedure in effect at the relevant time would not have altered the ERB's refusal to reach the merits of Leeds' case. Leeds is correct that the reference in the ERB opinion to his failure to comply with any of the agency's grievance procedures implies that the ERB credited Kennedy's allegedly manufactured evidence, but the ERB's crediting of that evidence did not affect its decision.

60

Similarly, the BoL's decision not to address the merits of Leeds' claim was not a result of Kennedy's alleged misconduct. The BoL found that it had no jurisdiction over the claims of laid-off former employees.

61

Since Hawthorne's and Wheeler's alleged involvement in the presenting of false evidence to the various administrative agencies likewise would have had no effect on the agencies' handling of Leeds' claims, the district court's entry of judgment in favor of Hawthorne and Wheeler was proper.4

62

4. The Wrongful Termination Claim against Sexson

63

The gravamen of this claim is that Sexson did not dismiss Leeds because of the budget cuts but because of political pressure from the ODA. In so doing, Sexson deprived Leeds of property in violation of 42 U.S.C. Sec. 1983. The district court, rejecting the magistrate's recommendation sua sponte, granted Sexson summary judgment on statute of limitations grounds.

64

In Wilson v. Garcia, 471 U.S. 261 (1985), the Supreme Court held that all Sec. 1983 claims are subject to the statute of limitations for personal injuries. In Oregon, that statute is O.R.S. 12.110(1), which provides for a two-year statute of limitations. Davis v. Harvey, 789 F.2d 1332 (9th Cir.1986). A statute of limitation begins to run when the plaintiff knows or has reason to know of the injury, its cause, and the person who did it. See United States v. Kubrick, 444 U.S. 111 (1979); Cline v. Brussett, 661 F.2d 108, 110 (9th Cir.1981); Hobson v. Wilson, 737 F.2d 1, 35 (D.C.Cir.1984).

65

In this case, because Leeds filed on July 1, 1985, any claim that Leeds should have been aware of before July 1, 1983 is time barred. The district judge found that the following passage in Leeds' statement of May 25, 1983 to the legislature demonstrated that he was aware at that time of the critical facts needed to sustain his cause of action:

66

The Department also took the easy way out when it came to dealing with water well drillers. It was much easier to cave in to the demands of a special interest group and fire the person responsible for well construction enforcement than it was to tell the industry that some of its members are violating the law and threaten the health and safety of the public. It was much easier to describe this action as a lay-off under the guise of a budgetary problem than it was to justify a firing based on the person's performance.

67

The plaintiff argues that he still had doubts when he made this statement, and that he only felt that his allegations had a firm basis two months later. The magistrate who originally decided this issue surprisingly found that the statement did not conclusively resolve the issue because one could infer from the statement that the plaintiff was merely expressing his doubts about Sexson's reasons for firing him. The magistrate misconceived the issue. The statute of limitations does not begin to run when the plaintiff is certain that his allegations are true, but rather when he recognizes that he has enough information to make a well-grounded complaint or at least to conduct an inquiry. See Hobson, 737 F.2d at 35. Leeds argues that before July 1, 1983, he knew only of rumors that a wrong had been committed, a situation he argues is analogous to that of the successful plaintiffs in Hobson. The plaintiffs in Hobson, members of left-wing organizations, knew of rumors that the FBI was involved in a conspiracy to harass "the New Left" in general, but they were not aware of any activity against them specifically. Leeds was aware of "rumors" focused specifically on him. Leeds had heard as early as October of 1982 that the ODA was taking credit for his dismissal. He could have commenced an inquiry then. Certainly, by July 1, 1983, he could have uncovered the facts he subsequently did uncover before filing his complaint.

68

Leeds argues that since the defendants did not object to the magistrate's finding that the suit against Sexson was within the statutory period, it was improper for the district judge to overturn the finding. The Eleventh Circuit held in Eley v. Heckler, 734 F.2d 724, 725-26 (11th Cir.1984) that the Magistrate Act vests final authority for all decisions in the district judge, and that a district judge may reject concessions made to the magistrate by the parties. We agree with the Eleventh Circuit. See also Mathews v. Weber, 423 U.S. 261, 270 (1976) (discussing district court's relation to magistrate generally).

69

5. The Failure-to-Rehire Claim against Sexson

70

The magistrate recommended, and the judge granted, summary judgment to Sexson on Leeds' claim that Sexson was involved in the decision to retaliate against him for his testimony. The magistrate reasoned that Sexson had no authority to decide whether to rehire Leeds because Sexson was out of work on July 5 and because the governor had not signed the appropriations bill refunding the position until July 26. Leeds argues that Sexson's testimony at Leeds' hearing before the ERB in September of 1983 provides evidence that Sexson did retaliate against Leeds. The following exchange took place at the hearing:

71

Q (Leeds). Were there plans to rehire me [during the period of the budget cuts]?

72

A (Sexson). There were certainly plans to refill that position or to get that work underway. When I said .. well, up until the time when you testified before the committee and you said you were .. thought by doing this you were probably removing yourself for any consideration for that position.5

73

Q. You're saying that until I testified there were theoretical plans of rehiring me?

74

A. There were plans on refilling that position. We didn't look at it in terms of reemploying people given the length of time that the positions were going to be vacant. If you'd been on the market again at the time when the position was being filled, you'd certainly have been eligible....

75

Q. Did you take my statement that I thought my testifying foreclosed any opportunity of returning to the agency in the future ... as a statement on my part that I didn't want to go or that I thought that maybe there'd be retaliation?

76

A. I had no idea what .. I didn't take it as anything. I didn't .. I didn't .. I guess I assumed you weren't interested, but .. in pursuing the job.

77

Even if this testimony does show that Sexson had longings to retaliate against Leeds, it is not evidence that Sexson had any input whatsoever in the crucial employment decisions made in the period during which the WRD had the funds for Leeds' old job. Leeds provided no evidence that Sexson was in contact with the persons (such as Wheeler and Kennedy) running the department in the period when Sexson's seat was vacant. The district court did not err in granting summary judgment in favor of Sexson.

B. OTHER ISSUES

1. Sanctions

78

After trial, Leeds moved for sanctions pursuant to Fed.R.Civ.P. 37(b). He argued that the defendants' resistance to a few discovery orders required that they be sanctioned and made to pay his costs. Orders denying sanctions are upset on appeal only upon a showing that the district court committed a "clear error of judgment." Fjelstad v. American Honda Motor Company, 762 F.2d 1334, 1337 (9th Cir.1985). The district court suggested that had Leeds moved for sanctions earlier, his claim might have been given serious consideration, but since he waited until after trial, there would not be much point in disciplining the defendants. In so reasoning, the court did not commit a clear error of judgment.

79

Leeds also asked for sanctions for what he perceived to be false testimony by Wheeler. Wheeler's accounts at trial and at his deposition of whether he contacted the governor's office regarding Leeds' claim were slightly different. The inconsistency was unimportant and could have been accounted for by faulty memory due to the lapse of time. As the district court held, "Plaintiff seems to believe that inconsistencies in the testimony of a witness necessarily amount to perjury. Such is simply not the case." We affirm the district court's sanctions rulings.

2. Evidentiary Issues

80

Evidentiary rulings are reviewed for abuse of discretion. United States v. Brannon, 616 F.2d 413, 418 (9th Cir.1980). Leeds argues that a letter he wrote to the Attorney General should have been admitted to help establish his procedural due process claims. The district court found the evidence cumulative to Leeds' testimony and largely irrelevant. The district court did not abuse its discretion. The evidence was immaterial; if admitted, it would not have helped fill the cause-and-effect gap in Leeds' due process claims.

81

The two submissions by the Water Resources Department to the legislature attesting to the importance of the PEA position and other positions would likewise have added nothing to Leeds' first amendment claims against Wheeler and Sexson. It was not disputed that the duties performed by the PEA were important; the question was whether they should all have been performed by one person. The district court did not abuse its discretion in making its evidentiary rulings.

CONCLUSION

82

We AFFIRM all of the district court's rulings except its entry of a jnov on Leeds' first amendment claim against Kennedy, its refusal to allow the jury to consider punitive damages against Kennedy, and its denial of an injunction. We REVERSE the district court's entry of judgment in favor of Kennedy on the first amendment claim and reinstate the jury's verdict on that claim. We REVERSE as well the district court's ruling refusing to allow the issue of punitive damages on that claim to go to the jury. We REMAND the question of whether injunctive relief should be granted on that claim.

83

AFFIRMED in part, REVERSED in part, and REMANDED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

1

O.R.S. Sec. 240.316(3) provides:

Procedures shall be established by the division to provide for the layoff and opportunity for reemployment of employees separated for reasons other than cause, which shall take into account the needs of the service, qualifications, quality of performance, relative merit, and length of service.

Pursuant to this statute, Rule 4-5-200 was issued. It provides:

Names of regular full-time employees separated from the service in good standing by layoff or demotion in lieu of layoff shall be placed on lists established for full-time employees of the agency from which separation is made. ... The appropriate agency layoff list shall take presedence [sic] over all other lists.

Rule 4-5-600 provides:

Order of Names on Lists. Names of eligibles shall be placed on layoff lists in order of service credit scores[.]

Oregon Personnel Policy 6.1.1 provides for conditions under which employees can be laid off (including budget cuts) and further provides:

Appointing authorities shall establish and maintain ... layoff lists, and shall consider these employees for vacancies, based on service credits and requirements of the positions.

Such employees shall have return-from-layoff rights for two years from the separation from the class....

2

Appellees make this argument in defense of the procedural due process claim that Kennedy lied to the BoL. (See discussion in section A.3 infra.) But their argument concerning the interpretation of the telephone conversation seems to apply to the first amendment/retaliation claim as well

3

The jury instructions did not include a charge that the defendants could be liable for interfering with proceedings before the Executive Department; the instructions only mentioned the ERB and the BoL. Leeds did not object to the relevant instructions. We therefore consider only whether there was interference with the proceedings before the ERB and the BoL

4

Since we find that the claims against Hawthorne fail on the merits, we need not address the question of prosecutorial immunity

5

When Leeds testified against Sexson at the committee hearing, he stated that he probably was foreclosing any chance of ever getting his job back but that it would be worth losing his job to expose the misdeeds of the Water Resources Department