                                                                             FILED
                            NOT FOR PUBLICATION                               OCT 15 2012

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KRISTINE M. PHILLIPS,                             No. 11-35833

              Plaintiff - Appellant,              D.C. No. 6:09-cv-06061-MO

  v.
                                                  MEMORANDUM *
MARION COUNTY SHERIFF’S
OFFICE, a department of Marion County;
et al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                       Argued and Submitted October 9, 2012
                                 Portland, Oregon

Before: SILVERMAN, CLIFTON, and N.R. SMITH, Circuit Judges.

       Plaintiff Kristine Phillips appeals the district court’s order granting judgment

as a matter of law and an evidentiary ruling made during trial. Specifically,

Phillips appeals the district court’s order holding that she lacked a constitutionally



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
protected property interest in the arbitration award granting reinstatement of her

employment and that Defendant Isham was entitled to qualified immunity. She

also appeals the district court’s evidentiary ruling that excluded evidence of

Isham’s resignation as the County sheriff on the grounds that it was unduly

prejudicial.

      We review a grant of judgment as a matter of law de novo. Costa v. Desert

Palace, Inc., 299 F.3d 838, 859 (9th Cir. 2002).

      Because there were no facts in dispute, whether Phillips had a

constitutionally protected property interest was a question of law for the judge.

See e.g., Walker v. City of Berkeley, 951 F.2d 182, 183 (9th Cir. 1991).

      The district court appears to have misread the Collective Bargaining

Agreement between the County and Sheriff’s Association. The CBA requires the

County to engage in binding arbitration if the Association (the employee’s

bargaining agent) wishes to engage in arbitration. The CBA refers to the decision

to participate in binding arbitration as the Association’s “right.” Oregon law

specifically allows for such an arrangement as a way to resolve employee

grievances. Or. Rev. Stat. § 243.706(1). The County’s agreement in the CBA to

submit to arbitration for all grievances, and to accept the decision of the arbitrator

as binding, was “intended to be a significant substantive restriction on [the


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County’s] decision making.” See Mustafa v. Clark Cnty. Sch. Dist., 157 F.3d

1169, 1178 (9th Cir. 1998) (internal quotations marks omitted). When the

arbitrator reinstated Phillips, the County did not have discretion to ignore the

reinstatement award; it had to abide by it. Phillips, therefore, had a “legitimate

claim of entitlement,” to the outcome of the arbitrator’s award and had a property

interest in her arbitrator-ordered reinstatement. See Sanchez v. City of Santa Ana,

915 F.2d 424, 428 (9th Cir. 1990).

      Accordingly, the district court erred in holding that Phillips did not have a

constitutionally protected property interest in her arbitrator-ordered reinstatement.

      As for whether Isham should be entitled to qualified immunity, the only

question is whether it was clearly established that Isham had to abide by the

arbitrator’s award. Isham argues he reasonably believed that, pursuant to

§ 243.706(1), reinstating Phillips after her misconduct was clearly contrary to the

public policies barring the mistreatment of, and the unjustified use of force against,

inmates.

      A reasonable official would understand that Phillips had to be reinstated.

This issue was definitely resolved several years before the events at issue here by

Washington County Police Officers’ Association v. Washington County, 335 Or.

198, 205–06 (2003), remanded to 187 Or. App. 686 (2003). The Oregon Supreme


                                           3
Court held that, under § 243.706(1), “the enforceability of the arbitrator’s award

does not turn on whether the employee’s [misconduct] violated some public policy.

The proper inquiry, instead, is whether the award itself complies with the specified

kind of public policy requirements.” Id. at 205 (emphasis in original).

      Therefore, it should have been sufficiently clear to Isham, in June 2008, that

he could not refuse to follow the arbitrator’s award ordering reinstatement simply

based on Phillips’s misconduct. The only way Isham could have refused to enforce

the arbitration award was if “some statute or judicial opinion outline, characterize,

or delimit a public policy against reinstating a police officer whom an investigation

has found [to have engaged in the misconduct Phillips was found to have

committed] and [only if] the statute or decision articulate[s] that policy in such a

way as to leave no serious doubt or question respecting the content or import of

that policy[.]” See Washington County, 187 Or. App. at 691–92 (internal quotation

marks omitted). Isham did not rely on any statute or judicial decision that

precludes reinstatement in Phillips’s instance at the time he refused to reinstate her,

nor does he identify one now. As the Oregon Supreme Court made clear in

Washington County, Isham could not refuse to enforce the arbitrator’s award under

§ 243.706(1) based on Phillips’ misconduct, as he did. Accordingly, the district

court erred in granting Isham qualified immunity.


                                           4
      Because we are reversing the district court’s order granting judgment for

Defendants, we need not address Phillips’ alternative ground for appeal regarding

the district court’s evidentiary ruling.

      For the foregoing reasons, we REVERSE the district court’s judgment as a

matter of law for Defendants, and order the district court to enter judgment as a

matter of law for Phillips and to reinstate the jury’s damages verdict. We

VACATE the district court’s award of costs against Phillips and REMAND the

issue of costs for determination by the district court.




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