Janell Howard v. City of Coos Bay

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JANELL HOWARD, No. 14-35506
Plaintiff-Appellant,
D.C. No.
v. 6:12-cv-01372-
MC
CITY OF COOS BAY, an Oregon
Municipal Corporation; CRADDOCK
RODGER, in his individual capacity, OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding

Argued and Submitted March 7, 2017
Portland, Oregon

Filed September 25, 2017

Before: Diarmuid F. O’Scannlain, Raymond C. Fisher,
and Michelle T. Friedland, Circuit Judges.

Opinion by Judge O’Scannlain
2 HOWARD V. CITY OF COOS BAY

SUMMARY *

Civil Rights

The panel affirmed the district court’s summary
judgment in an action brought under 42 U.S.C. § 1983 and
Oregon state law by a former employee of the City of Coos
Bay, Oregon, who alleged that the City violated the First
Amendment and state law by refusing to rehire her as a
Finance Director.

The City terminated plaintiff from her position as
Finance Director in 2008. In 2009, she filed her first lawsuit
against the City alleging that her termination was retaliatory
(Hunter I). While that lawsuit was pending, plaintiff’s
former position became vacant and she applied for the job.
Her application was rejected in 2011. After a jury ruled in
plaintiff’s favor in Howard I, plaintiff filed a second action
against the City in 2012, alleging that the City retaliated
against her for her first lawsuit when it rejected her
employment application (Howard II).

The panel first held that plaintiff’s claims were not
barred by claim preclusion because plaintiff’s retaliation
claim in the present suit arose from events that occurred after
she filed her complaint in Howard I . The panel held that
claim preclusion does not apply to claims that accrue after
the filing of the operative complaint. The panel held,
however, that issue preclusion barred plaintiff from
recovering economic damages which she has already

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 HOWARD V. CITY OF COOS BAY 3

received as a result of Howard I —namely the loss of the
salary and benefits she could have earned as the City’s
Finance Director. Nevertheless, because plaintiff presented
a new request for punitive damages and because she may
have been able to demonstrate new non-economic damages,
the panel considered the merits of her suit against the City.

The panel held that no reasonable jury could find that
plaintiff’s first suit was a substantial reason for the City’s
refusal to consider her for the Finance Director position in
2011. The panel held that rightly or wrongly, because of her
previous termination in 2008, the City had demonstrated that
it would have rejected plaintiff’s application in 2011,
irrespective of her suit.

The panel held that plaintiff’s claim under the Oregon
Whistleblower Act failed as a matter of law. Thus, the panel
rejected plaintiff’s assertion that the Act should be construed
analogously to Title VII of the United States Code, and
permit claims of retaliation brought by former employees.

COUNSEL

Beth Creighton (argued) and Michael E. Rose, Creighton &
Rose PC, Portland, Oregon, for Plaintiff-Appellant.

Robert E. Franz, Jr. (argued), Law Office of Robert E. Franz,
Jr., Springfield, Oregon, for Defendants-Appellees.
4 HOWARD V. CITY OF COOS BAY

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether the former employee of a City
in Oregon may prevail on allegations that it violated the First
Amendment and state law by refusing to rehire her.

I

A

Janell Howard served as the Finance Director for the
City of Coos Bay (“City”) from 1998 through 2008. On
September 16, 2008, after an investigation into whether
Howard had shoplifted from Wal-Mart (from which no
charges were filed), she was terminated from such position
for cause.

Howard maintained that her firing was actually the result
of a complaint she had brought in June 2007 before the
Oregon Board of Accountancy regarding an accountant
whom the City had hired to conduct an audit. Howard
believed that the accountant had billed the City for extra and
unnecessary charges. The City Manager, Charles Freeman,
requested that she withdraw the complaint, but Howard
refused and was temporarily suspended in July 2007.

B

In September 2009, Howard filed suit (“Howard I”)
against the City and Freeman, alleging multiple claims,
including First Amendment retaliation and whistleblower
retaliation under Oregon law. Howard filed an amended
complaint in October 2010.
 HOWARD V. CITY OF COOS BAY 5

Howard eventually found a new position as the
Administrative Services Director for the City of Brookings,
although it provided a lower salary with fewer benefits and
caused Howard to have additional housing expenses.

In May 2011, while Howard I was pending, the City
Finance Director position became vacant. The City
appointed Susanne Baker, who at that time worked in the
Finance Department, as acting Finance Director. Roger
Craddock, then current City Manager, asked Baker if she
would be interested in the position permanently, but she
declined because she wanted to continue with her education.
In June 2011, the City opened the application period to fill
this position permanently, and Howard applied for the job on
June 13.

On July 6, 2011, Howard received a letter from
Craddock explaining that her application would not be
considered because she previously had been terminated for
cause.

The letter read:

I am in receipt of your request to be
considered for the open position of Finance
Director with the City of Coos Bay.
Unfortunately, as your prior employment
with the City was terminated for cause, I am
not in a position to consider you for the
current position. I do wish you the best with
your continued employment with the City of
Brookings.

The application period for the Finance Director position
closed on July 8, 2011. The City received a total of
29 applications, interviewed the top four applicants, but
6 HOWARD V. CITY OF COOS BAY

declined to make an offer to anyone. Craddock again
approached Baker about applying, but she again declined.
The City began a second hiring period in August. Howard
did not reapply, although under City policy, her prior
application should have remained on file. The second
application period closed on September 30, 2011. The City
received twenty-three applications and interviewed the top
three candidates. Again, the City declined to make any
offers.

On October 25, 2011, Craddock again approached Baker
about taking the Finance Director position permanently. She
accepted the position the following day. The paperwork
officially promoting her was not completed until November
7 or 8, 2011, but the promotion became effective on
November 1.

Meanwhile, Howard I had been progressing to trial. On
October 11, 2011, Howard submitted a trial witness list,
which stated that Craddock would testify to the receipt of
Howard’s 2011 application for City Finance Director and
subsequent rejection. Howard also filed a proposed exhibit
list that included the July 6, 2011 rejection letter from
Craddock.

Trial on Howard’s First Amendment retaliation claim
began on October 31, 2011. Howard moved to admit the July
2011 rejection letter into evidence on the “theory” that it
demonstrated “continued retaliation for her protected
speech.” The City’s attorney objected, arguing that this was
“another claim . . . another set of circumstances” that was
“outside the scope of this lawsuit.” The court ruled that the
letter was “still relevant with regard to damages.”

The jury reached a verdict in favor of Howard on
November 2, 2011. It awarded her $150,000 in economic
 HOWARD V. CITY OF COOS BAY 7

damages, $50,000 in non-economic damages, and it further
awarded her $1,000 in punitive damages against Freeman,
the former City Manager.

C

On July 30, 2012, Howard filed this new suit (“Howard
II”) against the City of Coos Bay and City Manager
Craddock, contending that the City retaliated against her
success in Howard I by hiring Baker and rejecting her
application to become City Finance Director. She brought
claims under 28 U.S.C. § 1983, alleging that the City
violated the First Amendment of the United States
Constitution, and Or. Rev. Stat. § 659A.230, Oregon’s
whistleblower-protection law. The City and Craddock
moved for summary judgment arguing that Howard’s claims
were barred by both claim and issue preclusion, and,
alternatively, that they failed on the merits. The district court
granted summary judgment on May 13, 2014, determining
that Howard’s claims were barred by claim and issue
preclusion. Howard timely appealed.

II

First, Howard argues that the district court erred by
concluding that her claims were barred by claim preclusion. 1
Claim preclusion requires “(1) an identity of claims, (2) a

1
We review summary judgment de novo, applying the same
standard as the district court. Szajer v. City of Los Angeles, 632 F.3d 607,
610 (9th Cir. 2011). Thus, questions of claim and issue preclusion are
reviewed de novo. See United States v. Liquidators of European Fed.
Credit Bank, 630 F.3d 1139, 1144 (9th Cir. 2011). Summary judgment
is appropriate if there “is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
8 HOWARD V. CITY OF COOS BAY

final judgment on the merits, and (3) privity between
parties.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l
Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003)
(quoting Stratosphere Litig. L.L.C. v. Grand Casinos, Inc.,
298 F.3d 1137, 1142 n.3 (9th Cir. 2002)).

The parties do not dispute the application of the second
and third factors; the central debate is over the first factor—
whether the claims between the two suits are identical.

A

We employ four criteria to evaluate whether claims are
identical:

(1) whether rights or interests established in
the prior judgment would be destroyed or
impaired by prosecution of the second action;
(2) whether substantially the same evidence
is presented in the two actions; (3) whether
the two suits involve infringement of the
same right; and (4) whether the two suits arise
out of the same transactional nucleus of facts.

Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir.
2012) (quoting United States v. Liquidators of European
Fed. Credit Bank, 630 F.3d 1139, 1150 (9th Cir. 2011)).
These criteria are not applied “mechanistically.” Garity v.
APWU Nat’l Labor Org., 828 F.3d 848, 855 (9th Cir. 2016).
“The fourth criterion is the most important.” Harris,
682 F.3d at 1132.

1

Indeed, as did the district court, the parties focus on this
fourth criterion—whether the suits involve the same
 HOWARD V. CITY OF COOS BAY 9

transactional nucleus of facts. “[T]he inquiry about the
‘same transactional nucleus of facts’ is the same inquiry as
whether the claim could have been brought in the previous
action.” Liquidators of European Fed. Credit Bank, 630 F.3d
at 1151. This is because:

If the harm arose at the same time, then there
was no reason why the plaintiff could not
have brought the claim in the first action. The
plaintiff simply could have added a claim to
the complaint. If the harm arose from
different facts at a different time, however,
then the plaintiff could not have brought the
claim in the first action.

Id. Thus, “[w]hether two suits arise out of the same
transactional nucleus depends upon whether they are related
to the same set of facts and whether they could conveniently
be tried together.” Turtle Island Restoration Network v. U.S.
Dep’t of State, 673 F.3d 914, 918 (9th Cir. 2012) (quoting
ProShipLine Inc. v. Aspen Infrastructures Ltd., 609 F.3d
960, 968 (9th Cir. 2010)).

To answer this question, a number of other circuits have
“adopted a bright-line rule that res judicata does not apply
to events post-dating the filing of the initial complaint.”
Morgan v. Covington Twp., 648 F.3d 172, 177–78 (3d Cir.
2011); see also Bank of N.Y. v. First Millennium, Inc.,
607 F.3d 905, 919 (2d Cir. 2010); Smith v. Potter, 513 F.3d
781, 783 (7th Cir. 2008); Rawe v. Liberty Mut. Fire Ins. Co.,
462 F.3d 521, 529–30 (6th Cir. 2006); Mitchell v. City of
Moore, 218 F.3d 1190, 1202 (10th Cir. 2000); Manning v.
City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992); cf.
Young-Henderson v. Spartanburg Area Mental Health Ctr.,
945 F.2d 770, 774 (4th Cir. 1991) (suggesting without
10 HOWARD V. CITY OF COOS BAY

deciding that res judicata need not “preclude claims that
could not have been brought at the time the first complaint
was filed”); 18 Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 4409
(3d ed. 2017) (“Most cases rule that an action need include
only the portions of the claim due at the time of commencing
that action, frequently observing that the opportunity to file
a supplemental complaint is not an obligation.”). Indeed, the
Seventh Circuit has gone so far as to call it the “federal rule,”
Ellis v. CCA of Tennessee LLC, 650 F.3d 640, 652 (7th Cir.
2011), and the Supreme Court spoke approvingly of this line
of cases in Whole Woman’s Health v. Hellerstedt, 136 S. Ct.
2292, 2305 (2016).

We have applied this rule in the context of California
law, L.A. Branch NAACP v. L.A. Unified Sch. Dist., 750 F.2d
731, 739 (9th Cir. 1984) (en banc), 2 and as an alternative
holding in a footnote, Cabrera v. City of Huntington Park,
159 F.3d 374, 382 n.12 (9th Cir. 1998), but not expounded
on it further. We now confirm that for purposes of federal
common law, claim preclusion does not apply to claims that
accrue after the filing of the operative complaint.

Absent such rule, we would be left with the more
difficult question of whether the plaintiff could have
amended her complaint in the midst of litigation to add
claims which accrued after filing. Apart from amendments
as a matter of course, which can occur only once, early in
litigation, parties can amend their complaint before trial only
with consent of opposing parties or leave of the district court.
See Fed. R. Civ. P. 15(a). And only at the district court’s

2
We apply the res judicata rule of the jurisdiction that heard the
initial case. See Allen v. McCurry, 449 U.S. 90, 96 (1980).
 HOWARD V. CITY OF COOS BAY 11

discretion are parties permitted to file a supplemental
complaint. See Fed. R. Civ. P. 15(d).

Determining whether the district court or opposing
parties might have permitted the plaintiff to amend her
complaint in Howard I would require us to engage in the sort
of analysis conducted by the district court—asking the extent
to which discovery would have been disrupted if Howard
had filed a supplemental pleading three months before trial.
Such approach “would only invite disputes.” Morgan,
648 F.3d at 178. Given the importance of “certainty and
predictability,” id., we agree that a bright-line rule which
asks only whether a claim could have been brought at the
time the operative complaint in the prior suit was filed is
appropriate.

2

Applying this rule, it is plain that the claims in Howard
I and Howard II are not identical. Howard could not have
brought retaliation claims in Howard I based on the City’s
refusal to consider her for the Finance Director position in
2011. Howard filed her initial complaint in Howard I on
September 14, 2009, and she filed a second amended
complaint on October 26, 2010. She had not yet applied for
the Finance Director position at the time of her first or
second amended complaints, let alone received the July 6,
2011 rejection letter.

Thus, Howard’s retaliation claims in this suit arose from
events that occurred after she filed her complaint in Howard
I, and they are not barred by claim preclusion.
12 HOWARD V. CITY OF COOS BAY

III

Next, Howard maintains that the district court erred by
determining that her requests for damages were barred by
issue preclusion. The City argues that issue preclusion
should prevent Howard from receiving damages, and thus
effectively bar her claims.

Issue preclusion, or collateral estoppel, “bars ‘successive
litigation of an issue of fact or law actually litigated and
resolved in a valid court determination essential to the prior
judgment,’ even if the issue recurs in the context of a
different claim.” Taylor v. Sturgell, 553 U.S. 880, 892
(2008) (quoting New Hampshire v. Maine, 532 U.S. 742,
748–49 (2001)). The party asserting issue preclusion must
demonstrate: “(1) the issue at stake was identical in both
proceedings; (2) the issue was actually litigated and decided
in the prior proceedings; (3) there was a full and fair
opportunity to litigate the issue; and (4) the issue was
necessary to decide the merits.” Oyeniran v. Holder,
672 F.3d 800, 806 (9th Cir. 2012).

The parties focus on the first prong—whether the issue
is identical.

A

Typically, we apply four factors (known as the
Restatement factors) to evaluate the question:

(1) is there a substantial overlap between the
evidence or argument to be advanced in
the second proceeding and that advanced
in the first?
 HOWARD V. CITY OF COOS BAY 13

(2) does the new evidence or argument
involve the application of the same rule
of law as that involved in the prior
proceeding?

(3) could pretrial preparation and discovery
related to the matter presented in the first
action reasonably be expected to have
embraced the matter sought to be
presented in the second?

(4) how closely related are the claims
involved in the two proceedings?

Resolution Tr. Corp. v. Keating, 186 F.3d 1110, 1116 (9th
Cir. 1999) (quoting Kamilche Co. v. United States, 53 F.3d
1059, 1062 (9th Cir. 1995)); see also Restatement (Second)
of Judgments § 27 cmt. c (Am. Law Inst. 1982). Nonetheless,
these factors are not applied mechanistically. See, e.g.,
Syverson v. Int’l Bus. Machs. Corp., 472 F.3d 1072, 1080–
81 (9th Cir. 2007) (mentioning only three of the four
factors); Cent. Delta Water Agency v. United States,
306 F.3d 938, 953 (9th Cir. 2002) (evaluating whether the
facts were identical without discussing the factors).

1

We begin with the first factor—whether there is “a
substantial overlap between the evidence or argument to be
advanced” in the two proceedings regarding damages.
Restatement (Second) of Judgments § 27 cmt. c.

As the district court observed, there is no doubt that
Howard has requested the same type of damages in both
suits. In Howard I, she sought damages for “lost income, lost
benefits and seniority, commuting and housing expenses,” in
14 HOWARD V. CITY OF COOS BAY

addition to “loss of future income and impairment of earning
capacity,” as well as “emotional distress, public humiliation,
damage to her reputation, depression, loss of dignity and self
esteem, anxiety, loss of companionship . . . and loss of
enjoyment of life.” In this suit, Howard is requesting
“economic losses including but not limited to lost income,
lost benefits and seniority, and housing expenses,” in
addition to “loss of future income and impairment of earning
capacity,” as well as “emotional distress.” And in both suits,
Howard requested punitive damages.

Nonetheless, merely asking for the same type of relief is
not sufficient justification for issue preclusion. It is not at all
surprising that the same types of claims—First Amendment
retaliation and state whistleblower claims 3—would produce
the same types of damages. Asserting the same cause of
action in two separate suits does not mean the underlying
claims, which are based on different facts, are inherently
identical. Likewise, requesting the same types of damages
does not make two issues necessarily identical. 4 The more
important question is whether Howard requested the same
scope of damages. In other words, did Howard request
damages covering the same factual losses in both suits?

In Howard I, Howard testified that as a result of her
termination she had lost $33,522 in past wages and $12,699
in past benefits, and that she would lose $778,864 in future
wages and $65,009 in future benefits (based on the

3
In both suits, Howard brought First Amendment retaliation claims
under 42 U.S.C. § 1983. In Howard I, she also brought a whistleblower
claim under Or. Rev. Stat. § 659A.203, and in this suit she brings a
whistleblower claim under Or. Rev. Stat. § 659A.230.
4
Nonetheless, requesting the same types of damages may count in
favor of the second and fourth Restatement factors. See infra Part III.A.2.
 HOWARD V. CITY OF COOS BAY 15

differences between her salary and benefits at the time of
trial and her prior salary and benefits as the Finance Director
for Coos Bay, carried forward until she was eligible for
retirement in 2028). She testified that she had spent $736 in
job search fees. Additionally, she spoke of the “emotional
distress” she experienced as a result of being fired.

In evaluating damages, the court in Howard I instructed
the jury that it should consider:

1) the mental and emotional pain and
suffering experienced;

2) the reasonable value of wages or earnings
lost to the present time; and

3) the reasonable value of wages or earnings
which with reasonable probability will be
lost in the future.

Thus, the City maintains that because Howard requested
future damages and non-economic damages for the
emotional distress resulting from “the fact that she no longer
was working for the City” in Howard I, the issue of damages
has already been decided. The City argues that Howard
should be precluded from receiving a double recovery in this
suit. 5

5
Although Howard requested future damages, the extent to which
she received them is unclear. The jury returned a verdict that awarded
$150,000 in economic damages, and $50,000 in non-economic damages
against the City. But the jury did not specify the extent to which the
$150,000 economic damage award was intended to cover future loss. If
the jury credited all of Howard’s alleged accrued salary losses of $46,221
($33,522 in wages and $12,699 in benefits), then it would appear that she
16 HOWARD V. CITY OF COOS BAY

Howard has not provided us with the damage
computation she would request were this suit to continue to
trial. But since she calculated her economic losses up to the
time of her retirement in Howard I, presumably her projected
economic losses of not being hired for the City Finance
Director position in 2011 would be almost identical to the
projected economic losses of being terminated in 2008,
except that they would begin in 2011 and not 2008.

And, thus, because the scope of economic damages
necessarily overlaps, the evidence supporting these damages
must also overlap. 6 Again, while Howard has not directed us
to the exact evidence she would use to support her request
for economic damages in this suit, it seems certain that the
evidence would be largely the same—testimony regarding
the difference between the salary and benefits she would
have enjoyed as Finance Director for the City of Coos Bay
and her position as Administrative Services Director with the
City of Brookings, for example.

received $103,779 for future losses ($150,000–$46,221). There is no
way to know the precise amount, but it seems certain that at least some
substantial portion of the $150,000 award was provided for future salary
and benefit losses.

6
The district court focused on the evidentiary overlap surrounding
the July 2011 rejection letter, which was admitted for purposes of
damages in Howard I, and forms the foundation of this suit. Nonetheless,
while the letter was relevant to show Howard’s ongoing economic
damages in Howard I —continued difficulty in obtaining employment in
Coos Bay—it says little about ongoing economic damages resulting from
the City’s refusal to hire her in 2011. In this suit the letter establishes the
fact that the City rejected Howard’s 2011 application—the cornerstone
of her retaliation claims. Thus, although there is overlap, the letter serves
a different function in each suit.
 HOWARD V. CITY OF COOS BAY 17

Thus, since the evidence and arguments supporting
economic damages in both suits substantially overlap, the
issue of economic damages is largely identical under the first
Restatement factor. 7

The same is not the case for non-economic and punitive
damages. There is little doubt that Howard could argue that
she suffered new emotional distress as a result of the 2011
rejection, apart from the emotional distress she suffered as a
result of her 2008 termination. Nonetheless, since the July
2011 letter was admitted in Howard I, we agree with the
district court that such letter could be used to demonstrate
humiliation and embarrassment (and thus, support Howard’s
request for non-economic damages) in both suits. However,
it is easy to imagine Howard presenting additional evidence
of emotional distress resulting from the City’s refusal to
rehire her in 2011 that was not encompassed by the letter in
Howard I (such as testimony regarding mental anxiety she
experienced as a result of her rejection). Thus, while there
may be some evidentiary overlap, it is insufficient to
preclude all requests for non-economic damages.

More importantly, Howard’s request for punitive
damages in this suit is based on her claim that the City

7
It may be possible that Howard could demonstrate new economic
damages—for example, if she could show that her losses were more than
projected in 2011. But see Restatement (Second) of Judgments § 25 cmt.
c (“Accordingly, if a plaintiff who has recovered a judgment against a
defendant in a certain amount becomes dissatisfied with his recovery and
commences a second action to obtain increased damages, the court will
hold him precluded; his claim has been merged in the judgment and may
not be split.”). We need not resolve the question here.
18 HOWARD V. CITY OF COOS BAY

retaliated against her for filing Howard I. 8 Since this is a new
alleged violation, the evidence and arguments supporting
such relief (which are largely dependent on proof of the
underlying claim) are distinct. There is no overlap.

Thus, the first Restatement factor favors a finding of
identity of economic damages but not necessarily non-
economic damages and certainly not punitive damages.

2

The other Restatement factors are less conclusive in
making an identical issue determination. To the extent this
suit includes new evidence and arguments, it involves the
application of the same law of damages (factor two) as
Howard I since Howard is bringing similar types of legal
claims—retaliation in violation of the First Amendment and
the Oregon whistleblower law (factor four). Yet, this is not
particularly informative on the question of preclusion since
neither party appears to have challenged the application of
the legal rules governing damages (such as statutory damage
caps) in either suit. See Restatement (Second) of Judgments
§ 27 cmt. c, illus. 6.

It seems unlikely that pretrial preparation in Howard I
(factor three) could have been expected to embrace all of the
issues in this suit since the alleged actions occurred during
the midst of the discovery period in Howard I. Although the
July 2011 letter was produced during Howard I, no one
could have expected Howard to prepare for questions
regarding the propriety of punitive damages for the

8
In Howard I, the jury only considered punitive damages against
former City Manager Freeman, who was not involved in the City’s 2011
rejection of Howard’s application.
 HOWARD V. CITY OF COOS BAY 19

retaliation she allegedly experienced for filing Howard I—
since no such claim was brought. Nonetheless, preparation
for Howard I obviously included the issue of future
economic damages—as Howard’s own testimony in
Howard I indicates. Thus, not surprisingly, the third factor
tends to suggest that the issue of punitive damages is not
identical.

Finally, as discussed in the context of claim preclusion,
while the underlying claims of retaliation in both cases are
undoubtedly similar, they also involve distinct factual
scenarios, so the fourth factor provides limited insight on the
identical issue question.

3

In sum, while the second through fourth Restatement
factors are not especially illuminating, under the first factor,
the issue of economic damages is largely identical; there is a
possibility of partial overlap on the issue of non-economic
damages; and the issue of punitive damages is wholly
separate.

B

Apart from the identicality prong, the parties do not
seriously contest the application of the other criteria for issue
preclusion. There is no dispute that the question of damages
actually was litigated in Howard I, and there was a full and
fair opportunity to do so. While the issue of damages was
not necessary to decide the merits of Howard’s claims,
making a damages determination became a necessary
consequence of Howard’s victory on the merits. See
Oyeniran, 672 F.3d at 806.
20 HOWARD V. CITY OF COOS BAY

Thus, we conclude that Howard is precluded from
recovering economic damages which she has already
received—namely the loss of the salary and benefits she
could have earned as the City’s Finance Director. Because
Howard presents a new request for punitive damages,
however, we must consider the merits of her suit against
Craddock, 9 and because she may be able to demonstrate new
non-economic damages, we will consider the merits of her
suit against the City. 10

IV

Howard’s First Amendment retaliation claim alleges that
the City refused to hire her for the Finance Director position
in 2011 because of her suit in Howard I.

To establish a prima facie case of First Amendment
retaliation, a plaintiff must prove that “(1) she engaged in
protected speech; (2) the defendants took an ‘adverse
employment action’ against her; and (3) her speech was a
‘substantial or motivating’ factor for the adverse
employment action.” Thomas v. City of Beaverton, 379 F.3d
802, 808 (9th Cir. 2004) (quoting Coszalter v. City of Salem,
320 F.3d 968, 973 (9th Cir. 2003)). If a plaintiff can
demonstrate a prima facie case,

Punitive damages cannot be awarded against the City. See City of
9

Newport v. Fact Concerts, Inc., 453 U.S. 247, 267 (1981).

10
Given our conclusion on the merits of Howard’s First Amendment
and state law claims, we need not decide the extent to which Howard’s
request for non-economic damages should be partially precluded on the
basis of the July 2011 letter, or whether she may be able to request any
new economic damages.
 HOWARD V. CITY OF COOS BAY 21

the burden shifts to the employer to
demonstrate either that, under the balancing
test established by Pickering v. Board of
Education, 391 U.S. 563, 568 (1968), the
employer’s legitimate administrative
interests outweigh the employee’s First
Amendment rights or that, under the mixed
motive analysis established by Mt. Healthy
City School District Board of Education v.
Doyle, 429 U.S. 274, 287 (1977), the
employer “would have reached the same
decision even in the absence of the
[employee’s] protected conduct.”

Id. (quoting Ulrich v. City & Cty. of San Francisco, 308 F.3d
968, 976–77 (9th Cir. 2002)) (citations partially omitted).

A

The parties do not contest that Howard’s speech—her
suit in Howard I—was protected. Thus, for purposes of our
analysis, we assume without deciding that Howard has
demonstrated the first factor. 11

B

The parties disagree on precisely what “adverse
employment action” was taken by the City. Howard

11
It is not a foregone conclusion that Howard’s speech actually was
protected, however. “[A] public employee’s litigation must involve a
matter of public concern in order to be protected by either the Petition
Clause or the Speech Clause of the First Amendment.” Rendish v. City
of Tacoma, 123 F.3d 1216, 1220 (9th Cir. 1997). The City does not
address whether Howard’s suit involved a matter of public concern, so
we will not do so either.
22 HOWARD V. CITY OF COOS BAY

contends that the adverse action occurred when the City
hired Baker, while the City maintains that the adverse action
occurred when it sent the July 2011 rejection letter. Because
there is no question that some adverse action occurred,
however, we need not resolve this issue.

C

The parties strongly dispute whether Howard’s suit was
a “substantial” factor in the City’s decision not to hire her.
Howard relies on circumstantial evidence to argue that the
City excluded her from consideration for the 2011 position
because of her suit.

Circumstantial evidence can create “a genuine issue of
material fact on the question of retaliatory motive” when the
plaintiff provides “evidence that his employer knew of his
speech” 12 and further “produce[s] evidence of at least one of
the following three types”: (1) showing a “proximity in time
between the protected action and the allegedly retaliatory
employment decision” such that a “jury logically could infer
[that the plaintiff] was terminated in retaliation for his
speech”; (2) demonstrating “that his employer expressed
opposition to his speech . . . to him or to others”; or
(3) showing that “his employer’s proffered explanations for
the adverse employment action were false and pretextual.”
Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,
751–52 (9th Cir. 2001).

Howard maintains that “the sequence of events”
demonstrates that the City refused to hire her because of her

12
Since Howard brought suit against the City, there is no question
that the City was aware of her speech.
 HOWARD V. CITY OF COOS BAY 23

suit. While we reject Howard’s contention that the proximity
of Baker’s hiring to the jury verdict demonstrates
causation, 13 there is no doubt that the City’s decision not to
hire Howard—whether dated to the July 2011 letter or
Baker’s hiring in November—occurred in the midst of the
litigation in Howard I, and thus, raises the specter of
causation.

We have held that speech which occurred within “three
to eight months [of the adverse employment action] is easily
within a time range that can support an inference of
retaliation.” Coszalter v. City of Salem, 320 F.3d 968, 977
(9th Cir. 2003). Even “an eleven-month gap in time is within
the range that has been found to support an inference that an
employment decision was retaliatory.” Allen v. Iranon,
283 F.3d 1070, 1078 (9th Cir. 2002).

However, we are mindful of avoiding “the logical fallacy
of post hoc, ergo propter hoc.” Huskey v. City of San Jose,
204 F.3d 893, 899 (9th Cir. 2000). “[A] specified time
period cannot be a mechanically applied criterion. A rule that
any period over a certain time is per se too long (or,
conversely, a rule that any period under a certain time is per
se short enough) would be unrealistically simplistic.”
Coszalter, 320 F.3d at 977–78. Because “there is no set time

13
The record indicates that that Baker was hired before the jury
reached its verdict in Howard I. Craddock, the City Manager, offered
Baker the job as City Finance Director on October 25, 2011, and she
accepted on October 26. Although the formal paperwork surrounding
Baker’s hiring was not completed until November 7 or 8, the promotion
became effective on November 1. The jury reached its verdict on
November 2, 2011. As the July 2011 letter itself demonstrates, any
rejection of Howard based on her speech must have been the result of
her decision to file the suit, not the verdict she won.
24 HOWARD V. CITY OF COOS BAY

. . . [w]hether an adverse employment action is intended to
be retaliatory is a question of fact that must be decided in the
light of the timing and the surrounding circumstances.” Id.
at 978.

Howard’s application was rejected while her suit was
ongoing—there was no delay between her speech and the
adverse employment action. Not only was there a direct
correlation of time between her suit and rejection, the
adverse employment action occurred in the context of the
protracted heat of trial preparation. 14 Against the backdrop
of such litigation, the timing of her rejection creates a strong
inference that the City acted with a retaliatory motive.

D

Thus, assuming that Howard has presented a prima facie
case—protected speech, an adverse employment action, and
retaliatory motive (based on the chronological connection
between her suit and rejection)—we must consider whether
the City has carried its Mt. Healthy burden, demonstrating
that it “would have reached the same decision even in the
absence of [Howard’s] protected conduct.” Thomas,
379 F.3d at 808 (quoting Ulrich, 308 F.3d at 976–77).

14
Howard does not discuss the second type of evidence—whether
the City opposed her speech. See Keyser, 265 F.3d at 751–52. Of course
the City necessarily opposed her speech by serving as the opposing party
in her suit. The City was bound to respond to her complaint, however, so
the probative value of the City’s opposition may be limited—the City
did not speak initially of its own accord. Nonetheless, the fact that the
City was an opposing party in litigation underscores the adversarial
relationship between the City and Howard at the time of her 2011
application.
 HOWARD V. CITY OF COOS BAY 25

The City maintains that even without Howard’s suit, it
would have refused to hire her because she had been
previously terminated from the same position for cause.
Although Howard was later vindicated at trial, when the City
sent the rejection letter in July, the City’s records indicated
for-cause termination. It does not appear unreasonable for
the City to reject her application on the basis of the record
that existed at the time, even if the purported reason for the
termination was later found pretextual. 15 To conclude
otherwise would require public employers to conduct a new
investigation into whether a prior employee’s termination
was justified whenever such employee applied for a job
opening. 16

Howard argues that the City’s decision to hire Baker,
who was significantly less-qualified than Howard, indicates
that its stated reason for rejecting her application—that she
previously had been terminated for cause—was false.
Indeed, Howard contends that the City violated its own
policy, which required employment to be “on the basis of
merit, qualifications and competence,” in hiring Baker
because she lacked Howard’s credentials. 17

15
Notably, when the City rejected her application, it had already
been vindicated on all of Howard’s other claims—whistleblower
retaliation, wrongful discharge, and due process violation.

16
Further, Craddock was not the City Manager when Howard was
fired. Thus, to any extent that Howard’s termination may have been the
result of a personal vendetta between Howard and former City Manager
Freeman, such dynamic had changed in 2011.
17
Howard also points out that City policy also required all
candidates to complete an application; Baker never did. However, City
policy permits the City Manager to “authorize a less formal hiring
26 HOWARD V. CITY OF COOS BAY

Howard is correct that, when viewed in isolation,
Howard’s greater credentials and the City’s apparent
violation of its own policies might support an inference of
retaliation. Baker was not a CPA; Howard was. Howard had
nineteen years of accounting experience (and ten years as
City Finance Director); Baker had worked in public finance
for three years.

However, when viewed in the broader hiring context, the
City’s actions are far less suspicious. Over the course of the
two hiring periods for the Finance Director position, the City
received a total of fifty-two applications, and it interviewed
seven applicants. The top finalist in the first hiring period
had thirty-three years of overall accounting experience (and
twenty-nine years of municipal accounting experience) and
the second finalist had twenty-two years of accounting
experience. Thus, two of the finalists had greater accounting
experience than Howard, and the City rejected both of them,
hiring Baker instead. As the City argues, this strongly
suggests that the City hired Baker on the basis of her
performance as Acting Finance Director, rather than as an
attempt to retaliate against Howard.

Indeed, the record demonstrates that the City repeatedly
pursued Baker specifically. According to the City, Craddock
first asked Baker to consider the City Finance Director
position permanently when she was appointed Acting
Finance Director in May 2011 (prior to Howard’s
application). Baker declined. After completing the first
hiring period, which lasted from June to July (and rejecting
candidates with 20–30 years of accounting experience),
Craddock again approached Baker about applying for the

process.” Thus, the fact that Baker never completed a formal application
is not particularly informative.
 HOWARD V. CITY OF COOS BAY 27

job, and she again declined. At that point, Craddock
explained to the City Council that it could take a leisurely
approach to filling the position since Baker was “doing a
great job” as Acting Director. The City commenced a second
hiring period in August. After interviewing more applicants
and failing to find someone suitable, Craddock approached
Baker a third time about the position in October, and she
finally assented. According to Craddock, Baker “was the
best fit for the City.” The City’s repeated attempts to
convince Baker to apply for the position, coupled with its
rejection of candidates with even more experience than
Howard, makes clear that the City would have hired Baker
even if Howard had never brought suit.

Thus, no reasonable jury could find that Howard’s suit
was a substantial reason for the City’s refusal to consider her
for the Finance Director position in 2011. Rightly or
wrongly, because of her previous termination, the City has
demonstrated that it would have rejected Howard’s
application in 2011, irrespective of her suit, and hired Baker
instead. Accordingly, the district court correctly concluded
that Howard’s First Amendment claim does not survive
summary judgment. 18

V

Finally, Howard claims that the City violated Oregon’s
Whistleblower Act by rejecting her application. The relevant
provision provides:

18
Because we conclude that Howard’s First Amendment claim fails
on its merits, there is no need to address separately whether Craddock is
entitled to qualified immunity. See Glenn v. Washington Cty., 673 F.3d
864, 870 (9th Cir. 2011).
28 HOWARD V. CITY OF COOS BAY

It is an unlawful employment practice for an
employer to discharge, demote, suspend or in
any manner discriminate or retaliate against
an employee with regard to promotion,
compensation or other terms, conditions or
privileges of employment for the reason that
the employee has in good faith reported
criminal activity by any person, has in good
faith caused a complainant’s information or
complaint to be filed against any person, has
in good faith cooperated with any law
enforcement agency conducting a criminal
investigation, has in good faith brought a
civil proceeding against an employer or has
testified in good faith at a civil proceeding or
criminal trial.

Or. Rev. Stat. § 659A.230(1) (2016) (emphasis added).

The City maintains that because Howard was not an
employee when it rejected her 2011 application, her claims
necessarily fail as a matter of law. Howard argues that
§ 659A.230 should be read to permit claims of retaliation
brought by former employees.

A

The Act does not specifically provide a definition of
“employee” for § 659A.230. “If the legislature has not
defined a statutory term, Oregon courts ‘ordinarily look to
the plain meaning of a statute’s text as a key first step in
determining what particular terms mean.’” Brunozzi v.
Cable Commc’ns, Inc., 851 F.3d 990, 998–99 (9th Cir. 2017)
(quoting Comcast Corp. v. Dept. of Revenue, 337 P.3d 768,
776 (Or. 2014). In so doing, Oregon courts frequently
“consult dictionar[ies],” Comcast Corp., 337 P.3d at 776,
 HOWARD V. CITY OF COOS BAY 29

and examine the “context of the statute,” Roberts v. Oregon
Mut. Ins. Co., 255 P.3d 628, 632 (Or. Ct. App. 2011).
Finally, Oregon courts consider “any helpful legislative
history offered by the parties.” Id.

Webster’s Third New International Dictionary (2002)
defines “employee” as “one employed by another.” 19
Black’s Law Dictionary (10th ed. 2014) defines “employee”
as “[s]omeone who works in the service of another person
(the employer).” (emphasis added). Both of these definitions
seem to suggest that to be an “employee” one must be
actively employed.

Similarly, although the Oregon Whistleblower Act does
not provide a definition of “employee” as used in
§ 659A.230, a closely related provision of the Act, Or. Rev.
Stat. § 659A.200, provides a number of definitions of
“employee.” These definitions all refer to “a person . . .
[e]mployed” or “[s]erving”––present tense––rather than
someone who was employed or will be employed––past or
future tenses. Thus, Or. Rev. Stat. § 659A.200 also seems to
suggest that one must be actively employed to count as an
“employee.”

However, the strongest argument against applying
§ 659A.230 to Howard is the language surrounding
“employee” in the statute. Section 659A.230 makes it
unlawful “for an employer to discharge, demote, suspend or
in any manner discriminate or retaliate against an employee
with regard to promotion, compensation or other terms,

19
The Oregon Supreme Court “most often looks to the definitions
provided in Webster’s Third New Int’l Dictionary,” although when the
“term is a legal one” it looks to “legal dictionaries” such as Black’s Law
Dictionary. Comcast Corp., 337 P.3d at 776 & n.7.
30 HOWARD V. CITY OF COOS BAY

conditions or privileges of employment.” Prohibiting
demotion or suspension “with regard to promotion,
compensation or other terms, conditions or privileges of
employment” necessarily applies only to current employees.

While, in the abstract, discrimination or retaliation might
be read to encompass non-employees, it is unclear how
discrimination or retaliation “with regard to promotion,
compensation or other terms, conditions or privileges of
employment” could affect Howard. In order to experience
discrimination, one must be entitled to “promotion,
compensation or other terms, conditions or privileges of
employment.” A mere job applicant is not in such a position,
regardless of any status as a former employee. 20

Thus, the statutory context bolsters the dictionary
definitions. 21 Under the plain meaning of § 659A.230,
Howard cannot bring a claim as an “employee.”

B

Howard contends that the Oregon Whistleblower Act
should be construed analogously to Title VII of the United
States Code, specifically, 42 U.S.C. § 2000e-3(a), and thus,
following Robinson v. Shell Oil Co., 519 U.S. 337, 346
(1997), the term “employee” should be read to include
20
However, this logic does not necessarily entail that a former
employee could never bring suit under § 659A.230. For example, if
one’s employment was terminated, and she never received her final
paycheck, it is conceivable that she could have a claim of retaliation
“with regard to . . . compensation” based on a benefit that accrued while
she was an employee. We need not resolve whether § 659A.230 permits
suit in such situation here.
21
The parties do not point us to “any helpful legislative history,”
Roberts, 255 P.3d at 632, so we need not consider it.
 HOWARD V. CITY OF COOS BAY 31

“former employees.” Cf. Hunt v. City of Portland, 726 F.
Supp. 2d 1244, 1256–57 (D. Or. 2010), aff’d, 496 F. App’x
751 (9th Cir. 2012), and aff’d, 599 F. App’x 620 (9th Cir.
2013).

Howard is correct “that Oregon courts may examine
federal precedent for contextual support when they construe
state statutes that parallel federal law.” Portland State Univ.
Chapter of Am. Ass’n of Univ. Professors v. Portland State
Univ., 291 P.3d 658, 666 (Or. 2012). And the Oregon
Supreme Court has “looked to Title VII precedent to analyze
claims brought under other, analogous provisions of ORS
chapter 659A.” Id. The key, however, is that the provisions
must be “analogous.” Oregon courts have applied Title VII
precedent to subsections of chapter 659A that they found
“virtually verbatim” or “substantially similar.” Id. See also
Vaughn v. Pac. Nw. Bell Tel. Co., 611 P.2d 281, 289 (Or.
1980) (noting the similarity of Or. Rev. Stat. §§ 659.121(1),
659.410, and 659.415 to provisions of Title VII).

While Howard maintains that Or. Rev. Stat. § 659A.230
should be construed analogously to 42 U.S.C. § 2000e-3(a),
the Oregon Supreme Court already has disposed of this
claim by holding that a different state law, Or. Rev. Stat.
§ 659A.030(1)(f), is directly analogous to 42 U.S.C.
§ 2000e-3(a). See Portland State Univ., 291 P.3d at 667;
Pool v. VanRheen, 297 F.3d 899, 910 (9th Cir. 2002).

Section 659A.030(1)(f) makes it unlawful:

[f]or any person to discharge, expel or
otherwise discriminate against any other
person because that other person has opposed
any unlawful practice, or because that other
person has filed a complaint, testified or
32 HOWARD V. CITY OF COOS BAY

assisted in any proceeding under this chapter
or has attempted to do so.

(emphasis added). Thus, because it prohibits discrimination
against “any other person,” by its plain terms,
§ 659A.030(1)(f) would likely apply to former employees
like Howard. Similarly, 42 U.S.C. § 2000e-3(a) makes it
“unlawful . . . for an employer to discriminate against any of
his employees or applicants for employment.” This
provision also would likely apply to Howard because she
was an “applicant[] for employment.”

In contrast to Or. Rev. Stat. § 659A.030(1)(f) and
42 U.S.C. § 2000e-3(a), both of which are broad
antidiscrimination provisions, Or. Rev. Stat. § 659A.230
applies only to retaliation against “an employee.” We
assume that the Oregon legislature’s decision to use
“employee” in § 659A.230, but “any other person” in
§ 659A.030(1)(f), was deliberate. The obvious implication
of Portland State University is that if Or. Rev. Stat.
§ 659A.030(1)(f) is directly analogous 42 U.S.C. § 2000e-
3(a), then Or. Rev. Stat. § 659A.230 is not an equivalent
provision and should not be construed identically. 22

22
There is no doubt that the Oregon legislature knows how to enable
non-employees to bring discrimination claims when it so chooses. In
addition to § 659A.030(1)(f), Or. Rev. Stat. § 659A.030(1)(a) makes it
unlawful for an employer “to refuse to hire or employ [an] individual or
to bar or discharge [an] individual from employment” on the basis of
“race, color, religion, sex, sexual orientation, national origin, marital
status or age.”
 HOWARD V. CITY OF COOS BAY 33

C

Absent any indication that the term “employee” as used
in § 659A.230 is ambiguous, 23 we apply the plain meaning
of the word as referring to those who have “an existing
employment relationship with the employer in question.”
Robinson, 519 U.S. at 341; see also Walters v. Metro. Educ.
Enters, Inc., 519 U.S. 202, 207 (1997) (“In common
parlance, an employer ‘has’ an employee if he maintains an
employment relationship with that individual.”). Thus,
Howard’s claim under Or. Rev. Stat. § 659A.230 fails as a
matter of law.

VI

For the foregoing reasons, the district court’s judgment
is AFFIRMED.

23
In Robinson, the Supreme Court concluded that the term
“employee” was ambiguous on the basis of its surrounding statutory
context. 519 U.S. at 341–45. Howard has offered no such argumentation
here. Instead, as discussed, under Oregon law the use of the term
“employee” contrasts with the use of “any other person” or “individual”
in similar employment discrimination provisions. Compare Or. Rev.
Stat. § 659A.230 with § 659A.030(1)(f) and § 659A.030(1)(a).