Case 3:13-cv-02129-HZ

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Daniel E. Thenell, OSB #971655 Email: dan@thenelllawgroup.com Robert Bletko, OSB #791608 Email: rob@thenelllawgroup.com Thenell Law Group, P.C. 12909 SW 68th Parkway, Suite 320 Portland, OR 97223 Telephone: 503-372-6450 Facsimile: 503-372-6496 Of Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION MIGUEL MONICO, an individual, and SHAWN WATTS, an individual, ) ) ) Plaintiffs, ) ) vs. ) ) CITY OF CORNELIUS, a municipality of the ) state of Oregon; ROB DRAKE, in his ) individual and official capacity; KEN ) SUMMERS, in his individual and official ) capacity; and JOE NOFFSINGER, in his ) individual and official capacity, ) ) Defendants. ) ) Plaintiffs allege: (Introduction) 1. Pursuant to 42 U.S.C 1983, Plaintiffs allege violations of their Constitutional rights protected by the First and Fourteenth Amendments insofar as they were retaliated against for alleging corruption and misconduct in the workplace. Plaintiffs allege similar violations under ORS Page 1 COMPLAINT FOR DAMAGES
THENELL LAW GROUP, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: (503) 372-6450 Facsimile: (503) 372-6496
2013-106

Case No. COMPLAINT FOR DAMAGES [Violation of 42 U.S.C. 1983; Violation of Oregons Whistleblower Protection Statute; and Intentional Infliction of Emotional Distress] DEMAND FOR JURY TRIAL

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Chapter 659A, Oregons Whistleblower Protection Statutes, with claims of retaliation. Plaintiffs also claim the common law tort of Intentional Infliction of Emotional distress bought about from Defendants retaliatory actions. Plaintiffs seek damages, equitable relief, attorney fees, and litigation expenses/costs. (Jurisdiction) 2. This Court has original jurisdiction pursuant to 28 U.S.C 1331 and supplemental jurisdiction pursuant to 28 U.S.C 1367. (Parties and Venue) 3. Plaintiffs Miguel Monico and Shawn Watts (collectively Plaintiffs), at all times relevant to the allegations in this Complaint, resided in the state of Oregon. 4. Defendant City of Cornelius is a municipality in the state of Oregon, and a public body as defined under ORS 174.109. At all times during this Complaint, Defendant City of Cornelius had the power, right and duty to control the conduct of the individually named Defendants to ensure their compliance with all Constitutional provisions, laws, rules and regulations affecting the rights of employees of the City of Cornelius. Upon information and belief, Defendant City of Cornelius failed to train and supervise its employees regarding compliance with all Constitutional provisions, laws, rules and regulations affecting the rights of its employees. 5. Defendants Rob Drake, Ken Summers, and Joe Noffsinger, at all times relevant to the allegations in this Complaint, resided in the state of Oregon, and were employed by Defendant City of Cornelius. Defendants Drake, Summers, and Noffsinger are each sued in their individual capacity for the acts taken under color of state law that deprived the Plaintiffs of their rights Page 2 COMPLAINT FOR DAMAGES
THENELL LAW GROUP, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: (503) 372-6450 Facsimile: (503) 372-6496
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guaranteed by the United States Constitution, pursuant to the provisions of 42 U.S.C 1983. Defendants Drake, Summers, and Noffsinger are also sued in their official capacities as officers and employees of the City of Cornelius, and their actions are attributable to Defendant City of Cornelius as to all of Plaintiffs claims. 6. Venue is proper under 28 U.S.C 1391(a) because the Defendants reside in and all incidents alleged in the complaint occurred in the District of Oregon. (Allegations and Claims for Relief) 7. Mr. Monico, at all times during this complaint, was employed as a police officer with the City of Cornelius police department for over four years. Mr. Watts, at all times during this complaint, was employed as a Sergeant with the City of Cornelius police department, and had over 20 years of experience as a police officer. At no time during this complaint were Plaintiffs employed with Internal Affairs, or other watchdog groups. 8. Throughout Plaintiffs employment, they performed their duties to the best of their abilities, and held the police officers oath of legal, moral, and ethical obligations to themselves and the citizens and community they serve, to the highest degree. 9. In 2011, Mr. Watts first reported serious officer misconduct by a fellow police officer within his department. Mr. Watts reported the officers misconduct to then-Chief Paul

Rubenstein (Rubenstein) and Defendant Noffsinger; however no action was taken against the officer. /// /// Page 3 COMPLAINT FOR DAMAGES
THENELL LAW GROUP, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: (503) 372-6450 Facsimile: (503) 372-6496
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10. Throughout 2012, Plaintiffs and other City of Cornelius police officers became increasingly concerned with egregious corruption and misconduct they witnessed within the department. Any attempt by Plaintiffs to address these concerns to Rubenstein and Defendant Noffsinger were met with threats of punishment and reprisal. Officers within the department who were personally loyal to Rubenstein and Defendant Noffsinger were treated more favorably than those who sought to question and fix the misconduct and corruption within the department, creating a hostile and adversarial work environment, and discrimination amongst the police officers. 11. On or about October 16, 2012, Plaintiffs exercising their First Amendment right to free speech expressed their concern with the serious officer misconduct and corruption within the department by preparing a corruption complaint against Rubenstein and Defendant Noffsinger. Plaintiffs prepared the corruption complaint not because of any specific job duty or assignment required, but because they were alarmed by the negative reputation and public trust with the police department. 12. Plaintiffs corruption complaint was hand delivered to Defendant Drake, and emailed to the City of Cornelius Mayor, Jeffrey C. Dalin, and other members of the city council. This was done outside the typical chain of command within the City of Cornelius police department. The corruption complaint alleged, among other things, that serious instances of willfully reckless, negligent, unethical, abusive, hostile and unprofessional conduct had occurred within the department by those in charge. /// /// Page 4 COMPLAINT FOR DAMAGES
THENELL LAW GROUP, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: (503) 372-6450 Facsimile: (503) 372-6496
2013-106

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13. Upon reasonable knowledge and belief, on or about October 18, 2012, a copy of the corruption complaint was unlawfully disseminated to City of Cornelius employees by Defendant City of Cornelius and its employees, specifically Defendant Drake, via e-mail to multiple recipients, disclosing Plaintiffs identities. The multiple recipients included Rubenstein and Defendant Noffsinger Plaintiffs supervisors. Defendant Drakes disclosure was done within the scope and course of his employment. This disclosure was done without Plaintiffs consent. Attached hereto as Exhibit A, is a true and accurate copy of the e-mail dated, October 18, 2012. 14. Upon reasonable knowledge and belief, in or around November, 2012, a copy of the corruption complaint was unlawfully disseminated to the Oregonian newspaper by Defendants, and published on November 8, 2012. Again, this disclosure was done without Plaintiffs

consent, and further disclosed their identities. 15. In February, 2013, shortly after Plaintiffs submitted their corruption complaint, Rubenstein was forced to resign. On February 26, 2013, Defendant Noffsinger was demoted from Assistant Police Chief to lieutenant. 16. Immediately following the unlawful dissemination of the corruption complaint, Plaintiffs were singled out and maliciously retaliated against by Defendants. Defendants created an

environment at work so hostile that Plaintiffs dreaded arriving to work each day. Most recently, Defendants intimidated and threatened retaliation against Plaintiffs should they testify in criminal lawsuits involving City of Cornelius employees. Specifically, Defendants threatened to /// /// Page 5 COMPLAINT FOR DAMAGES
THENELL LAW GROUP, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: (503) 372-6450 Facsimile: (503) 372-6496
2013-106

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neither indemnify nor defend Plaintiffs should a civil lawsuit arises against them due to their testimony. Attached hereto as Exhibit B, is a true and accurate copy of the e-mail dated, November 14, 2013. 17. In 2013, Defendant City of Cornelius had an opening for a lieutenant position within its police department. Mr. Watts was the most qualified for the position, having over 20 years of experience as a police officer. Upon reasonable knowledge and belief, Defendants as a means to punish Mr. Watts for the corruption complaint acting within the scope and course of their employment refused to seriously consider Mr. Watts as a candidate for the lieutenant position with the department. 18. Defendant Summers later filled the lieutenant position with the family member of a current City of Cornelius police supervisor, in direct violation of Defendant City of Cornelius nepotism policy. When Mr. Watts expressed his concerns, he was further retaliated against by Defendants. 19. On or about April 10, 2013, a Magistrate Judge provided his Findings and Recommendations in an unrelated civil lawsuit, Case No. 3:11-cv-260-PK, against the City of Cornelius and Mr. Monico. On or about April 13, 2013, the parties attorney in that matter, Robert Wagner, forwarded a copy of the Findings and Recommendations to Mr. Monico and Defendant City of Cornelius. Mr. Wagner stated, unequivocally, that the Magistrates opinion was flawed and he would appeal the Findings and Recommendations. /// /// /// Page 6 COMPLAINT FOR DAMAGES
THENELL LAW GROUP, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: (503) 372-6450 Facsimile: (503) 372-6496
2013-106

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20. On or about April 15, 2013, Defendant Summers, acting within the scope and course of his employment, disclosed the Findings and Recommendations to the Washington County District Attorneys office for the purpose of a Brady List review. The purpose of a Brady List is to include police officers who have a sustained history of intentionally lying in their official capacity. A police officer placed on a countys Brady List loses credibility, as their professional reputation is called into question, and many face destroyed careers in law enforcement. 21. Defendant Summers action in disclosing the Findings and Recommendations to the Washington County District Attorney was premature, having disclosed the report without first contacting or notifying Mr. Wagner, and before any formal decision by the Court was made. The quick disclosure taken by Defendant Summers is suspect, given Defendants past discrimination and retaliatory actions against Mr. Monico following the corruption complaint. Upon reasonable knowledge and belief, Defendant Summers actions were taken as a means to further effect Mr. Monicos employment due to his involvement with the October 16, 2012, corruption complaint. 22. On or about April 17, 2013, the Washington County District Attorney place Mr. Monico on the countys Brady List. The consequences of placing Mr. Monico on the countys Brady List called into question his truthfulness and credibility as a police officer. /// /// /// /// /// Page 7 COMPLAINT FOR DAMAGES
THENELL LAW GROUP, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: (503) 372-6450 Facsimile: (503) 372-6496
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23. In April, 2013, uniformed officers, on the authorization of Defendants Summers and Noffsinger, took up tactical positions around Mr. Monicos residence, and placed their hands on their holstered firearms in front of Mr. Monicos wife and children, to order him to surrender his badge and credentials. These actions were unwarranted, and were beyond the scope of socially tolerable conduct. Upon reasonable knowledge and belief, Defendants Summers and Noffsinger authorized this use of excessive force as a means to punish Mr. Monico for the October 16, 2012, corruption complaint. 24. On April 17, 2013, Mr. Monico was placed on administrative leave by Defendants, and was forced to perform menial cleaning and physical labor around the police department. Mr. Monico was required to perform these tasks in front of fellow police officers, as a way of further retaliatory action by Defendants. (Mr. Watts Count I) (Violation of First Amendment Speech Rights pursuant to 42 U.S.C. 1983) 25. Plaintiffs reallege Paragraphs 1 through 24 herein. 26. On or about October 16, 2012, Mr. Watts expressed a matter of public concern by preparing the corruption complaint against Rubenstein and Defendant Noffsinger. Mr. Watts

was outside the scope of his formal duties as a police officer with Defendant City of Cornelius, when he prepared the corruption complaint. /// /// /// Page 8 COMPLAINT FOR DAMAGES
THENELL LAW GROUP, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: (503) 372-6450 Facsimile: (503) 372-6496
2013-106

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27. Defendants Noffsinger and Drake, acting within the course and scope of their respective employment with Defendant City of Cornelius, recklessly and intentionally disseminated the corruption complaint as a means to punish and retaliate against Mr. Watts to other City of Cornelius employees and the Oregonian newspaper. Defendants Noffsinger and Drakes

disclosures were done as a means to deprive Mr. Watts of his protected First Amendment Speech Right. 28. As a result of Defendants reckless indifference to Mr. Watts Constitutional rights, Mr. Watts has suffered damages and is entitled to a punitive award to be determined at trial. 29. Pursuant to 42 U.S.C 1988, Mr. Watts demands his reasonable attorneys fees. (Mr. Watts Count II) (Violation of Oregons Whistleblower Protection Statute) 30. Plaintiffs reallege Paragraphs 1 through 24 herein. 31. Defendants City of Cornelius and Drake violated Oregons Whistleblower Protection Statute when they disseminated the corruption complaint filed by Plaintiffs to City of Cornelius employees, including Defendant Noffsinger and Rubenstein, disclosing Mr. Watts identity without his consent. Defendants actions were in direct violation of ORS 659A.218. 32. Defendants further violated Oregons Whistleblower Protection Statute by unlawfully retaliating against Mr. Watts for his filing the corruption complaint, by not considering him for the lieutenant position with the City of Cornelius police department. Page 9 COMPLAINT FOR DAMAGES
THENELL LAW GROUP, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: (503) 372-6450 Facsimile: (503) 372-6496
2013-106

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33. As a result of Defendants violation, Mr. Watts has suffered damages. (Mr. Watts Count III) (Intentional Infliction of Emotional Distress) 34. Plaintiffs reallege Paragraphs 1 through 24 herein. 35. Defendants City of Cornelius and Drake inflicted severe emotional distress on Mr. Watts when Defendants disseminated the corruption complaint filed by Plaintiffs to City of Cornelius employees, Defendant Noffsinger and Rubenstein, disclosing Mr. Watts identity without his consent. Defendants City of Cornelius and Drakes actions were done as a means to punish and retaliate against Mr. Watts, and thus, outside the bounds of socially tolerable conduct. 36. As a result of Defendants actions, Mr. Watts has suffered damages. (Mr. Monicos Count I) (Violation of First Amendment Speech Rights pursuant to 42 U.S.C. 1983) 37. Plaintiffs reallege Paragraphs 1 through 24 herein. 38. On or about October 16, 2012, Mr. Monico expressed a matter of public concern by preparing the corruption complaint against Rubenstein and Defendant Noffsinger. Mr. Monico was outside the scope of his formal duties as a police officer with Defendant City of Cornelius, when he prepared the corruption complaint. /// /// Page 10 COMPLAINT FOR DAMAGES
THENELL LAW GROUP, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: (503) 372-6450 Facsimile: (503) 372-6496
2013-106

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39. Defendants Noffsinger and Drake, acting within the course and scope of their respective employment with Defendant City of Cornelius, recklessly and intentionally disseminated the corruption complaint as a means to punish and retaliate against Mr. Monico to other City of Cornelius employees and the Oregonian newspaper. Defendants Noffsinger and Drakes

disclosures were done as a means to deprive Mr. Monico of his protected First Amendment Speech Right. 40. Defendants, specifically Defendant Summers, acting within the course and scope of his employment with Defendant City of Cornelius further violated Mr. Monicos First Amendment Speech Right by prematurely disclosing the Magistrates Findings and Recommendations to the Washington County District Attorneys office. Defendant Summers retaliatory action was done to punish Mr. Monico for his involvement with the corruption complaint, and consequently, caused Mr. Monico to be placed on administrative leave and the Washington Countys Brady List. 41. As a result of Defendants reckless indifference to Mr. Monicos Constitutional rights, Mr. Monico has suffered damages, and is entitled to a punitive award. 42. Pursuant to 42 U.S.C. 1988, Mr. Monico demand his reasonable attorneys fees. (Mr. Monicos Count II) (Violation of Oregons Whistleblower Protection Statute) 43. Plaintiffs reallege Paragraphs 1 through 24 herein. /// Page 11 COMPLAINT FOR DAMAGES
THENELL LAW GROUP, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: (503) 372-6450 Facsimile: (503) 372-6496
2013-106

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44. Defendants City of Cornelius and Drake violated Oregons Whistleblower Protection Statute when they disseminated the corruption complaint filed by Plaintiffs to City of Cornelius employees, including Defendant Noffsinger and Rubenstein, disclosing Mr. Monicos identity without his consent. Defendants actions were in direct violation of ORS 659A.218. 45. Defendants, specifically Defendant Summers, further violated Oregons Whistleblower Protection Statute by unlawfully retaliating against Mr. Monico by prematurely disclosing the Magistrates Findings and Recommendations, in the unrelated civil lawsuit, to the Washington County District Attorneys office, thus placing Mr. Monico on the countys Brady List, causing him to be placed administrative leave. 46. As a result of Defendants violation, Mr. Monico has suffered damages. (Mr. Monicos Count III) (Intentional Infliction of Emotional Distress) 47. Plaintiffs reallege Paragraphs 1 through 24 herein. 48. Defendants City of Cornelius and Drake, inflicted severe emotional distress on Mr. Monico when Defendants disseminated the corruption complaint filed by Plaintiffs to City of Cornelius employees, including Defendant Noffsinger and Rubenstein, disclosing Mr. Monicos identity without his consent. The action done by Defendants City of Cornelius and Drake were meant to punish Mr. Monico, and thus, outside the bounds of socially tolerable conduct. /// /// Page 12 COMPLAINT FOR DAMAGES
THENELL LAW GROUP, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: (503) 372-6450 Facsimile: (503) 372-6496
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49. Defendants, specifically Defendant Summers, inflicted severe emotional distress on Mr. Monico by prematurely disclosing the Magistrates Findings and Recommendations to the Washington County District Attorneys office, which effectively placed Mr. Monico on the countys Brady List. Defendant Summers actions were done in spite of Mr. Monico as a means to punish him for filing a corruption complaint, and thus, outside the bounds of socially tolerable conduct. Defendant Summers action caused Mr. Monico to be placed on administrative leave, and has affected his credibility as a police officer. 50. Defendants Summers and Noffsinger, inflicted severe emotional distress on Mr. Monico when they sent uniformed officers to Mr. Monicos residence, and authorized them to take up tactical positions around Mr. Monicos home, placing their hands on their holstered firearms in front of Mr. Monicos wife and children. Defendants Summers and Noffsingers actions were done to punish Mr. Monico, and thus, outside the bounds of socially tolerable conduct. 51. Defendants, inflicted severe emotional distress on Mr. Monico by placing him on administrative leave, and forcing him to perform menial cleaning and physical labor within the police department in front of his colleagues. Defendants actions were done to further punish Mr. Monico, and thus, outside the bounds of socially tolerable conduct. /// /// /// /// /// /// Page 13 COMPLAINT FOR DAMAGES
THENELL LAW GROUP, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: (503) 372-6450 Facsimile: (503) 372-6496
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52. As a result of Defendants actions, Mr. Monico has suffered damages. WHEREFORE, Plaintiffs pray for judgment against Defendants as follows: 1. For noneconomic damages in the amount of $1,500,000; 2. For economic damages to be determined at trial; 3. For punitive damages on Counts I and III to be determined at trial; 4. For attorneys fees pursuant to 42 U.S.C. 1988; 5. For costs and disbursements; and 6. For any other relief this Court deems equitable, just and proper. DATED this 2nd day of December, 2013. THENELL LAW GROUP, P.C.

By:

/s/ Daniel E. Thenell Daniel E. Thenell, OSB #971655 Email: dan@thenelllawgroup.com Robert Bletko, OSB #791608 Email: rob@thenelllawgroup.com Thenell Law Group, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: 503-372-6450 Facsimile: 503-372-6496 Of Attorneys for Plaintiffs

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THENELL LAW GROUP, P.C. 12909 SW 68th Parkway, Suite 320 Portland, Oregon 97223 Telephone: (503) 372-6450 Facsimile: (503) 372-6496

2013-106