Wrongful Release Of Brady Information ‘Adverse Action’ For Employment Purposes

James Cleavenger was a public safety officer for the University of Oregon Police Department from March 2011 to October 2012, when his employment was terminated. Cleavenger sued the University, contending that the Police Chief retaliated against him for engaging in protected speech in violation of his First Amendment rights.

A jury agreed with Cleavenger, and awarded him $650,000 in economic damages as well as punitive damages of $105,000 against a total of three individual defendants. The University challenged the award on the grounds that Cleavenger could not show the requisite “adverse action” against him to justify his claims.

A federal court judge upheld the verdict. The Court started with the proposition that “an action is an adverse employment action if a reasonable employee would have found the action materially adverse, which means it might have dissuaded a reasonable worker form engaging in protected activity.” The Court then turned to the jury’s conclusion that the Chief retaliated against Cleavenger by wrongfully compiling and sending to the local prosecutor evidence the Chief thought established Cleavenger’s dishonesty – evidence the Chief testified she thought had to be disclosed under the rule in Brady v. Maryland.

The University argued that “the act of compiling information about instances of dishonesty and violation of University policies by Cleavenger for purposes of consideration by the District Attorney under Brady…and the decision to send that information to the District Attorney for his consideration under Brady…does not rise to the level of ‘adverse action’ required.” The Court disagreed, finding substantial evidence that “the submission of Brady materials to the DA can ultimately end your career and your future in law enforcement, and probably prohibit your chances of getting hired as a full-time paid police officer. The Court cannot conclude Defendant’s Brady-related conduct is analogous to mere scolding, threats, or harsh words such that it does not constitute an adverse employment action as a matter of law.”

The University tried to distinguish the Chief’s preparation and submission of Brady materials from the prosecutor’s later decision to place Cleavenger on a Brady list. The Court did not accept the distinction. The Court noted: “Indeed, the jury received substantial evidence indicating Cleavenger was Brady listed as a result of Defendants’ submission of the materials to the District Attorney’s Office. For example, the DA wrote the Chief that ‘We are in receipt of information with Brady implications concerning your former officer James Cleavenger. Based on the information reviewed to date, we are confident of a duty to disclose related information to the defense in any criminal case in which Officer Cleavenger is a potential witness.’

“The Court concludes there was substantial evidence to support a finding that providing the Brady materials to the DA’s office was reasonably likely to deter protected speech.”

Cleavenger v. University of Oregon, 2016 WL 814810 (D. Or. 2016).