Opinion
3:21-cv-01005-HL
06-23-2022
CARIN SHERMAN, Plaintiff, v. CLACKAMAS COUNTY SHERIFF'S OFFICE, Defendant.
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff Carin Sherman asserts this employment discrimination action against her employer, Defendant Clackamas County Sheriff's Office (“CCSO”). This matter now comes before the Court on Defendant's Motion to Strike and Motion to Dismiss. The Court heard oral argument on these motions on March 9, 2022. ECF 26. For the reasons set forth below, Defendant's Motion to Strike should be denied, and Defendant's Motion to Dismiss should be granted in part and denied in part.
FACTUAL BACKGROUND
The Court recites the following facts from Plaintiff's complaint and assumes that they are true for the purpose of reviewing the pending motion. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007). Plaintiff began working as a jail service technician at the Clackamas County Jail in September 2017. Compl. ¶ 10, ECF 1. Sometime in 2018, Plaintiff began a romantic relationship with Deputy Brandon Kearns (“Deputy Kearns”), a field training officer with Defendant Clackamas County's Sheriff Office (“CCSO”). Id. ¶ 11.
Before Plaintiff's romantic relationship with Deputy Kearns, but while he worked for CCSO, officers were dispatched to Deputy Kearns' home for an incident involving his then-girlfriend. Id. ¶ 13. Deputy Kearns' then-girlfriend called the police and reported that Deputy Kearns was attempting to kill himself with a gun. Id. She reported that Deputy Kearns grabbed her and would not let her leave the home during the encounter. Id. CCSO officers did not classify the call as a domestic violence (“DV”) call, and they did not refer the matter to an outside agency for investigation. Id.
In January 2019, Deputy Kearns brutally strangulated Plaintiff and forced soap into her mouth in Clackamas, Oregon, a week after she had attempted to end their relationship. Id. ¶ 12. Plaintiff did not immediately report the assault out of fear for Deputy Kearns' retaliation. Id. ¶ 17. Around the same time, however, Plaintiff told another CCSO deputy about her “volatile relationship” with Deputy Kearns, which often resulted in Deputy Kearns going to Plaintiff's apartment when she asked him not to. Id. For several months after the January 2019 assault, Deputy Kearns used his position within CCSO to intimidate Plaintiff, including accessing CCSO reports to determine Plaintiff's whereabouts. Id. ¶ 19.
In May 2019, Plaintiff traveled to Nevada with Deputy Kearns, who was attending mandatory training for CCSO. Id. ¶ 19. On May 11, while in Nevada, Deputy Kearns assaulted and strangulated Plaintiff again. Id. Deputy Kearns grabbed Plaintiff by the neck, bruised her vocal cords, and taunted that he could kill her. Id. Plaintiff reported the assault to a Clackamas County officer who subsequently reported the crimes. Id. ¶ 20.
On May 15, Plaintiff began the process of bringing charges against Deputy Kearns in both Oregon and Nevada, and Deputy Kearns was placed on paid administrative leave with CCSO. Id. ¶¶ 21, 23, 25. On May 16, Plaintiff was assigned a domestic violence victims' advocate (“advocate”) from CCSO. According to Plaintiff, the advocate was used as a way to funnel information from Plaintiff to CCSO administration to the benefit of CCSO. Id. ¶ 42. Deputy Kearns was not arrested for over a week, and Plaintiff was instructed to leave the state for safety until Deputy Kearns was in custody. Id. ¶¶ 22, 24.
In June 2019, Deputy Kearns was charged with domestic battery by strangulation, a felony, and domestic battery, a misdemeanor, in Nevada. Id. ¶ 26. Although both Plaintiff and Deputy Kearns were CCSO employees, CCSO did not relinquish its control of the investigation to an outside office and retained primary control of the investigation. Id. ¶ 27. On September 25, 2019, Deputy Kearns entered into a plea deal, and he was convicted in Nevada of disorderly conduct and violation of a protection order. Id. ¶ 28.
Deputy Kearns remained on administrative leave for a year following his Nevada convictions. Id. ¶¶ 29, 42. Although CCSO has a policy that “promotes zero tolerance” for domestic violence, CCSO determined that Deputy Kearns could only be removed for “just cause,” and his Nevada convictions did not rise to that standard. Id. ¶ 30. Additionally, CCSO delayed its personal investigation of Deputy Kearns' conduct pending his Oregon trial. Id. According to Plaintiff, CCSO delayed its personal investigation so that Deputy Kearns would not have an internal investigation file that would incriminate him during his Oregon trial. Id.
Deputy Kearns' Oregon trial was set to begin in May 2020. Id. ¶ 32. On April 14, Deputy Kearns' attorney requested that CCSO turn over any exculpatory or impeachment information that could be found in Plaintiff's employment records; CCSO accurately responded that none existed. Id. ¶ 33. On April 22, Deputy Kearns' attorney filed a Motion to Compel any internal affairs investigations of Plaintiff. Id. ¶ 34. Although Plaintiff had not been the subject of any investigations up until that point, Plaintiff was notified less than a week later, on April 28, that she was being investigated for a complaint that was made against her by a CCSO supervisor who was an ally of Deputy Kearns. Id. ¶¶ 34, 35, 36.
According to Plaintiff, the CCSO supervisor “set up” Plaintiff: the supervisor instructed Plaintiff to take a domestic violence report, which is something outside her job scope. Id. ¶ 36. Plaintiff promptly reported the issue to her own supervisor, but the complaint was filed against Plaintiff to damage her credibility ahead of the Oregon trial. Id. ¶ 35, 36. Unlike with Deputy Kearns, CCSO promptly investigated the complaints made against Plaintiff before Deputy Kearns' Oregon trial. Id. ¶ 37.
On June 3, 2020, Plaintiff learned that CCSO administration knew that there was an information leak within CCSO and that “manufactured information” was being provided to Deputy Kearns. Id. ¶ 38. On June 16, Plaintiff received a second notice that she was being investigated due to another complaint made against her, this time by a CCSO employee who was also closely aligned with Deputy Kearns. Id. ¶ 40. On July 24, Plaintiff learned that CCSO administration was aware of the “concerning nature” of the investigations employed against Plaintiff, but CCSO did nothing to stop the harm caused to Plaintiff. Id. ¶ 41.
On November 5, 2020, Deputy Kearns entered into a plea deal in his Oregon case: he pleaded to the lesser offense of menacing, a misdemeanor, and the State of Oregon dropped the felony strangulation charge. Id. ¶ 44. The case was not referred to the Oregon Department of Justice (“DOJ”) or any other outside agency to prosecute the matter. Id.
On November 10, 2020, Deputy Kearns resigned from CCSO. Id. ¶ 45. CCSO told Plaintiff that it would not release a statement related to Deputy Kearns' Oregon conviction. Id. ¶ 46. Plaintiff responded that CCSO was protecting Deputy Kearns over Plaintiff, and she expressed deep frustration that CCSO allowed Deputy Kearns to remain on leave for as long as it did and allowed him to resign. Id. Following the report of her frustrations of CCSO's handling of Deputy Kearns' actions, a member of CCSO administration contacted Plaintiff and attempted to discourage Plaintiff from speaking out further about CCSO's processes. Id. ¶ 47.
Plaintiff continued to experience hostility at CCSO following Deputy Kearns' resignation. Id. ¶ 50. On November 25, Plaintiff reported to CCSO that she believed that CCSO employees were inappropriately accessing police reports and photographs from Deputy Kearns' Oregon case, but CCSO never followed up with Plaintiff. Id. ¶ 49. On February 3, 2021, a CCSO supervisor-and close ally of Deputy Kearns-refused to approve Plaintiff's request for leave. Id. In April 2021, Plaintiff was harassed about her complaints of workplace harassment and discrimination during the daily roll call. Id. That same month, CCSO's Human Resources (“HR”) department reported that it did not investigate (1) Plaintiff's complaints regarding the retaliatory internal affairs investigations issued against her or (2) the information leaks during Deputy Kearns' Oregon trial. Id. In June 2021, Plaintiff was subjected to another internal affairs investigation. Id.
PROCEDURAL BACKGROUND
Plaintiff initiated this action on July 8, 2021, id. at 29, and pursuant to a tolling agreement, the date of the Complaint relates back to April 29, 2021. Id. ¶ 8. Plaintiff asserts eight claims for relief: (1) a 42 U.S.C. § 1983 claim for violation of the Equal Protection Clause under the Fourteenth Amendment, id. ¶¶ 51-60; (2) sex discrimination pursuant to the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2(a), id. ¶¶ 61-67; (3) hostile work environment under Title VII, id. ¶¶ 68-71; (4) retaliation for a good faith complaint of illegal conduct under Or. Rev. Stat. § (“ORS”) 659A.199, id. ¶¶ 72-75; (5) discrimination on the basis of Plaintiff's identity of a domestic violence victim pursuant to ORS 659A.290(2)(b), id. ¶¶ 7679; (6) discrimination for initiating civil proceedings under ORS 659A.230, id. ¶¶ 80-83; (7) defamation, id. ¶¶ 84-88; and (8) negligent hiring and retention, id. ¶¶ 89-98. Defendant has now filed a Motion to Strike and a Motion to Dismiss. Def. Mot. Dismiss & Mot. Strike (“Def. Mot. Dismiss”), ECF 8.
DISCUSSION
I. Motion to Strike
Federal Rule of Civil Procedure 12(f) allows the court to strike any “redundant, immaterial, impertinent, or scandalous material.” To be impertinent or immaterial, the allegations must not have any possible bearing on the controversy. Emp'rs Ins. v. Musick, Peeler, & Garrett, 871 F.Supp. 381, 391 (S.D. Cal. 1994), opin. amended on reconsideration, 948 F.Supp. 942 (S.D. Cal. 1995). The “function of Rule 12(f) is not served when . . . the motion would require the court to resolve ‘disputed and substantial factual or legal issues.'” Am. Gen. Life Ins. Co. v. James, No. C-14-04242 DMR, 2015 WL 730010, at *3 (N.D. Cal. Feb. 19, 2015) (quoting Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973-75 (9th Cir. 2010)).
Motions to strike “are disfavored and infrequently granted.” Liberty Nat. Prods., Inc. v. Hoffman, 3:13-cv-00886-BR, 2017 WL 4855404, at *4 (D. Or. Oct. 26, 2017). See also Servo v. Junginger, 3:13-cv-00702-PK, 2014 WL 3891751, at *3 (D. Or. Aug. 6, 2014) (same). “This is because they are ‘often used as delaying tactics, and because of the limited importance of pleadings in federal practice.'” Baroness Small Estates v. BJ's Rests., Inc., Case No. SACV 11-468-JST (Ex), 2011 WL 13228020, at *1 (quoting Bureerong v. Uvawas, 922 F.Supp. 1450, 1478 (C.D. Cal. 1996)).
When considering a motion to strike “the court must view the pleadings in the light most favorable to the nonmoving party.” Liberty Nat., 2017 WL 4855404, at *4. See also In re 2TheMart.com Secs. Litig., 114 F.Supp.2d 955, 965 (C.D. Cal. 2000) (same). The disposition of a motion to strike is within the discretion of the district court. Federal Sav. & Loan Ins. Corp. v. Gemini Mgmt, 921 F.2d 241, 244 (9th Cir. 1990). See also Reddy, 2018 WL 4407248, at *2 (same).
Defendant seeks to strike paragraphs 15, 16, 24, and 55 from Plaintiff's complaint as containing immaterial and impertinent information to Plaintiff's claims against Defendant, as they contain citations to academic journals. Def. Mot. Dismiss 2-3. Plaintiff responds that the following paragraphs are pertinent and relevant, as they provide context relevant to “both Defendant's motive and state of mind toward addressing gendered violence and sex discrimination against women, particularly in law enforcement settings.” Pl.'s Resp. Def.'s Mot. Dismiss (“Pl.'s Resp.”) 51-53, ECF 17
Paragraph 15 alleges that CCSO leadership is predominately male and has created an “old boys club” culture that has sheltered Deputy Kearns from accountability for his violence crimes against women. Compl. ¶ 15. The paragraph cites to the National Center for Women and Policing for the proposition that the hierarchical structure of the police profession requires women to submit to male authority, tolerate men's abusive behavior, and become vulnerable to forms of abuse in intimate relationships. Id.
Paragraph 16 states that CCSO had a custom or policy of treating domestic violence as a lesser crime that was not worthy of intervention. Id. ¶ 16. The paragraph then cites to an article that states that 90% to 95% of domestic violence victims are women and that police departments classify domestic violence as lesser crimes because of a deeply rooted and highly misogynistic social understanding of gender relations that urges against state intervention in private matters. Id.
Paragraph 24 states that although CCSO's own protocol documents note that a victim's chances of being murdered increase by 750% after being strangled, CCSO did not arrest Deputy Kearns for over one week. Id. ¶ 24. The paragraph further alleges that CCSO deviated from the International Association of Chiefs of Police gold standard, which further demonstrated CCSO's bias against domestic violence victims. Id.
Finally, paragraph 55 states that domestic violence is sex-based issue given that 90% to 95% of domestic violence victims are women. Id. ¶ 55. Paragraph 55 reasserts that police departments classify domestic violence as lesser crimes because of deeply rooted and highly misogynistic social understandings of gender relations that urges against state intervention in private matters. Id.
Defendant's Motion to Strike should be denied. Defendant does not cite any authority to support its contention that Plaintiff's citations to academic journals render the four paragraphs in Plaintiff's complaint immaterial or impertinent to Plaintiff's claims against Defendant. See Def. Mot. Dismiss 2-3. As noted above, motions to strike on the grounds of immateriality or irrelevancy are generally disfavored and will usually be denied “unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” Carlson Corp./Se. v. Sch. Bd. of Seminole County, Fla., 778 F.Supp. 518, 519 (M.D. Fla. 1991) (internal quotations omitted). In this case, when viewing the pleadings in the light most favorable to Plaintiff, the relevant paragraphs provide sufficiently relevant context that bears an important relationship, and do pertain, to Plaintiff's claims for relief. Thus, Defendant's Motion to Strike should be denied.
II. Motion to Dismiss
A Rule of 12(b)(6) motion tests whether there is a cognizable legal theory or sufficient facts to support a cognizable legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). To survive a Rule 12(b)(6) motion, “the complaint must allege ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). A Rule 12(b)(6) motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015); Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010).
When evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the plaintiff. Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 971 (9th Cir. 2018) (citing Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010)); Dowers v. Nationstar Mortg., LLC, 852 F.3d 964, 969 (9th Cir. 2017) (citing Iqbal, 556 U.S. at 678).
In support of its Motion to Dismiss, Defendant contends that each of Plaintiff's eight claims should be dismissed for either being untimely or for failing to allege facts sufficient to state a claim. Id. at 3-30. Plaintiff responds that-with the exception of conceding dismissal of her defamation claim-the Motion to Dismiss should be denied because she has sufficiently alleged facts supporting her claims for relief that are not timed barred. Pl.'s Resp. Def.'s Mot. Dismiss (“Pl.'s Resp.”) 9-51. In the alternative, Plaintiff asserts that if the motion is granted, then she should be granted leave to amend the pleadings. Id. at 53.
For the reasons discussed below, Defendant's Motion to Dismiss should be granted in part and denied in part. The motion should be granted as to Plaintiff's Section 1983 claim, negligent hiring and retention claim, and defamation claim. The rest of Defendant's Motion to Dismiss as to Plaintiff's remaining claims should be denied, because whether Plaintiff's claims are untimely are not clear from the Complaint, and Plaintiff has sufficiently alleged facts to plausibly state claims for relief. Finally, Plaintiff should be granted leave to file an amended complaint.
A. Timeliness of Plaintiff's Claims
Defendant moves to dismiss most of Plaintiff's claims as untimely. Def. Mot. Dismiss 5- 8. Defendant contends that Plaintiff's state law claims are subject to and in violation of the Oregon Tort Claims Act (“OTCA”) notice requirement and the one-year statute of limitations. Id. 5-6; Def. Reply in Support Mot. Dismiss & Mot. Strike (“Def. Reply”) 3-5, ECF 20. Regarding Plaintiff's federal claims, Defendant argues that Plaintiff's Section 1983 claim and sex discrimination claim are untimely because they are subject to a 300-day statute of limitations under Title VII. Def. Mot. Dismiss at 6.
Plaintiff alleges four state law claims against CCSO: whistleblowing retaliation under ORS 659A.199, discrimination against a domestic violence victim under ORS 659A.290(2)(b), discrimination for filing a civil action under ORS 659A.230, and negligent hiring and retention.
The State of Oregon authorizes civil suits against state public bodies through the Oregon Tort Claims Act (“OTCA”). See ORS 30.260 et seq. The OTCA requires that the plaintiff provide the defendant notice of the claim “within 180 days after the alleged loss or injury.” ORS 30.275(2)(b) (noting timing requirement for all claims other than wrongful death actions); ORS 659A.875(5) (providing that the notice requirement also applies to statutory employment claims). The start of the 180-day period can be tolled for a maximum of 90 days if the plaintiff is unable to provide the notice due to injury, minority, incompetency, or some other incapacity. ORS 30.275(2). Additionally, statutory unlawful employment practice claims are subject to a one-year statute of limitations, which requires the plaintiff to assert such claims “within one year after the occurrence of the unlawful employment practice.” ORS 659A.875(1).
Here, Plaintiff provided OTCA notice to Defendant on November 30, 2020. Compl. ¶ 6; Def. Mot. Dismiss 6. 180 days before that date is June 3, 2020. Thus, the conduct forming the basis of Plaintiff's state law claims must have occurred on or after June 3, 2020. The events in the Complaint took place from January 2019 through June 2021. See Compl. ¶¶ 12-50.
Neither party addresses whether these dates should be adjusted based on Oregon HB 4212, which extended limitations periods during the COVID-19 pandemic. See Crooker v. City of Portland, No. 3:20-CV-01961-IM, 2021 WL 3823203, at *4-6 (D. Or. Aug. 26, 2021). This Court need not address his issue, however, given that it is not material to the continuing tort analysis.
Plaintiff also alleges two federal claims: a Section 1983 claim and sex discrimination claim under Title VII. Title VII claims are subject to a 300-day statute of limitations, which requires the plaintiff to bring suit within 300 days “after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1). Defendant argues that because Plaintiff did not file a complaint with the Equal Employment Opportunity Commission (“EEOC”) until December 1, 2020, her Title VII claims may only be based on actions or conduct occurring on or after February 5, 2020. Def. Mot. Dismiss 6.
Plaintiff responds that she timely provided notice of her claims and all the facts underlying her claims because they constituted continuing torts. Pl.'s Resp. 48-49. Under Oregon law, “[w]hen a continuing tort is involved, a notice of a claim filed at any time during the continuance of the conduct or within 180 days after the conduct has ceased is timely.” Barns v. City of Eugene, 183 Or.App. 471, 475 (2002). A continuing tort is characterized by acts that “are not the type of discrete, permanent events that would likely support separate actions for wrongful discrimination” but, rather, separate incidents that “can be reasonably construed as elements of a systematic pattern of conduct, aimed at causing plaintiff's eventual termination.” Griffin v. Tri-Met, 112 Or. App 575, 581-82 (1992), aff'd in part and rev'd in part on other grounds, 318 Or. 500, 870 P.2d 808 (1994). Essentially, “at the heart of the continuing tort idea is the concept that recovery is for the cumulative effect of wrongful behavior, not for discrete elements of that conduct.” Davis v. Bostick, 282 Or. 667, 671 (1978).
Federal courts similarly recognize the continuing violations doctrine. See Cherosky v. Henderson, 330 F.3d 1243, 1246 (9th Cir. 2003). Under the continuing violations doctrine, a plaintiff may assert a Section 1983 claim or Title VII claim “based on events that occurred outside the applicable statute of limitations period if the plaintiff can show that the defendant engaged in a continuing violation that at least in part fell within the limitations period.” Tsur v. Intel Corp., 3:21-CV-655-SI, 2021 WL 4721057, at *3 (D. Or. Oct. 8, 2021) (citing Cherosky, 330 F.3d at 1246 n.3); see Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (“The continuing violation theory applies to § 1983 actions.”). “In Oregon, the continuing tort theory is similar to the continuing violation theory under federal law.... Thus, to establish a continuing violation under both state and federal law, a plaintiff must show that the untimely incidents were part of an ongoing pattern of discrimination” that continued into the applicable limitations period. Shepard v. City of Portland, 829 F.Supp.2d 940, 955 (D. Or. 2011) (internal quotations and citations omitted).
Neither party separately addresses the applicable federal standards for the continuing violations doctrine. The Ninth Circuit has recently discussed the limitations of this doctrine, particularly with respect to Section 1983 claims alleging a systematic pattern of discrimination. See Bird v. Dep't of Human Services, 935 F.3d 738, 748 (9th Cir. 2019). Given this Court's recommended disposition of the Section 1983 claim, and it the absence of specific argument from the parties on this point, it will not separately address whether Plaintiff's Section 1983 claim is subject to the continuing violations doctrine.
Plaintiff's allegation that her claims constitute a “continuing tort” must be considered in light of the standard of review for a motion to dismiss. “A statute-of-limitations defense, if ‘apparent from the face of the complaint,' may properly be raised in a motion to dismiss.” Seven Arts Filmed Entm't Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013) (quoting Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir. 1980)). “If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim[.]” Jones v. Bock, 549 U.S. 199, 215 (2007); see also Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995) (“A motion to dismiss based on the running of the statute of limitations period may be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.”) (internal quotations and citations omitted). However, “a complaint cannot be dismissed unless it appears beyond a doubt that plaintiff can prove no set of facts that would establish the timeliness of the claim.” Supermail Cargo, 68 F.3d at 1207 (declining to dismiss a complaint where the equitable tolling doctrine was applicable).
Plaintiff has pleaded sufficient facts to plausibly demonstrate a systematic pattern of wrongful behavior from Defendant. The Complaint describes a pattern of systematic conduct that Defendant engaged in throughout the course of Deputy Kearns' prosecutions. The Complaint alleges that Defendant continuously discriminated against Plaintiff throughout Deputy Kearns' criminal prosecution, including subjecting Plaintiff to various internal affairs investigations even after learning about the suspicious nature of the investigations and allowing information to leak to Deputy Kearns ahead of his trial. Compl. ¶¶ 34, 40, 41, 49, 50. Moreover, even after Deputy Kearns was allowed to resign, the Complaint alleges that Defendant continued to create a hostile and discriminatory work environment for Plaintiff when she was refused time off, harassed by coworkers about her workplace complaints, not provided a response about her reports of retaliation, and subjected to a third internal investigation. Id. ¶¶ 50. Significantly, Plaintiff alleges multiple acts of alleged discrimination and retaliation occurring within the applicable limitations period. Id. ¶¶ 38; 40; 41; 50.
At this early stage in the proceedings, the Court is persuaded that Plaintiff has alleged sufficient facts that her claims constitute continuing torts. Plaintiff includes multiple specific acts and events she alleges are discriminatory or retaliatory, at least some of which occurred within the limitations period, and she does not identify any one of them as the independent cause of her injury. When considered in the light most favorable to Plaintiff, these allegations suggest a continuous nature of violations with at least one action occurring within the limitation period. See Menchu v. Multnomah Cnty. Health Dep't, No. 3:20-CV-00559-AC, 2021 WL 2450780, at *6 (D. Or. May 3, 2021), report and recommendation adopted, No. 3:20-CV-00559-AC, 2021 WL 2446173 (D. Or. June 14, 2021) (so holding). As such, Plaintiff has plausibly alleged that her claims are timely for purposes of the present motion.
B. First Claim - Section 1983 Equal Protection Claim
Plaintiff asserts her first cause of action pursuant to 42 U.S.C. § 1983 and alleges that Defendant violated her Fourteenth Amendment rights to equal protection by discriminating against her based on her gender. Defendant argues that this claim should be dismissed because Plaintiff has not sufficiently alleged an equal protection violation or met the requirements of Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).
The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). “To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999).
Under the Supreme Court's holding in Monell, a municipal entity may be held liable under Section 1983 where a plaintiff demonstrates that the constitutional violation complained of was caused by a municipal “policy or custom.” Monell, 436 U.S. at 658. To establish Monell liability, a plaintiff must allege that (1) she was deprived of a constitutional right; (2) the municipality had a policy, custom, or practice; (3) the policy, custom, or practice amounted to deliberate indifference of the plaintiff's constitutional rights; and (4) the policy, custom, or practice was the “moving force” behind the constitutional violation. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citation omitted).
A “policy” is a “deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). A “custom” is a “widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well-settled as to constitute a custom or usage with the force of law.” St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Los Angeles Police Protective League v. Gates, 907 F.2d 879, 890 (9th Cir. 1990). “The custom must be so ‘persistent and widespread' that it constitutes a ‘permanent and well settled . . . policy.'” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting Monell, 436 U.S. at 691). “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Id.
Defendant argues that Plaintiff's allegations are conclusory and insufficient because Plaintiff failed to identify a formal or expressly adopted official CCSO policy, practice, or custom that would lead to the deprivation of Plaintiff's constitutional rights. Id. at 16. The Court agrees.
The Complaint does not allege sufficient facts to support a Section 1983 claim for violation of the Equal Protection Clause under the Fourteenth Amendment, because Plaintiff has not plausibly alleged any CCSO practice, policy, or custom that was the moving force behind the alleged constitutional violations. As an initial matter, Plaintiff does not identify any formal or expressly identified CCSO policy. In identifying CCSO's purported customs, policies, and practices, Plaintiff only references occurrences that happened to her exclusively. The Ninth Circuit has explained that “[liability for improper custom may not be predicated on isolated or sporadic incidents. . . .” Trevino, 99 F.3d at 918. Thus, in only identifying customs predicated on isolated incidents that are related to Plaintiff, Plaintiff's allegations do not allege a purported custom that would be “so permanent and well-settled as to constitute a custom or usage with the force of law” within CCSO. See Monell, 436 U.S. at 691. Importantly, “to withstand a motion to dismiss for failure to state a claim, a Monell claim must consist of more than mere formulaic recitations of the existence of unlawful policies, conducts or habits.” Cook v. Cty. of Contra Costa, No. 15-CV-05099-TEH, 2016 WL 913395, at *4 (N.D. Cal. Mar. 10, 2016) (internal quotations omitted).
The Court limits its “discussion to just one of the four enumerated elements, because this suffices to show that dismissal [is] warranted.” J.K.J. v. City of San Diego, 17 F.4th 1247, 1255 (9th Cir. 2021).
Plaintiff also alleges that CCSO failed to train its employees. Compl. ¶ 53. Monell liability can arise from a failure to train, supervise, or discipline that amounts to a deliberate indifference to individuals' constitutional rights. Horton by Horton v. City of Santa Maria, 915 F.3d 592, 602-03 (9th Cir. 2019). Deliberate indifference is “a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of [its] action.” Bd. of Cnty. Comm rs of Bryan Cnty. v. Brown, 520 U.S. 397 (1997). To show deliberate indifference, a plaintiff must demonstrate that the need “for more or different action is so obvious, and the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.” Hyun Ju Park v. City and Cnty. of Honolulu, 952 F.3d 1136, 1141 (9th Cir. 2020) (internal quotation marks and citations omitted, alterations normalized).
In this case, the Complaint does not clearly allege which employees were left without proper training, nor does it plead sufficient facts to demonstrate that deficient training amounted to deliberate indifference. Even recognizing that “a failure to train can be a ‘policy' under Monell,” Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1159 (9th Cir. 2012), Plaintiff alleged no facts that would indicate any “deficiency in the training actually caused the . . . [alleged] indifference” to Plaintiff's constitutional rights. City of Canton Harris, 489 U.S. 378, 391 (1989). Moreover, an allegation “that additional training would have been helpful in making difficult decisions does not establish municipal liability.” Connick v. Thompson, 563 U.S. 51, 61 (2011).
Plaintiff also alleges that Defendant deprived Plaintiff of her equal protection rights because “persons in policy-making decisions ratified the unlawful conduct knowing the basis of the unlawful conduct.” Compl. ¶ 59. A plaintiff may establish Monell liability
(1) by showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision, or (2) by showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate.Ulrich v. City and Cnty. of San Francisco, 308 F.3d 968, 985 (9th Cir. 2002). Here, the Complaint does not allege what decision was ratified or by whom.
In sum, Plaintiff has failed to state a claim for municipal liability under Monell. Plaintiff should, however, be given leave to amend her Complaint. “Dismissal without leave to amend is improper unless it is ‘clear' that the complaint could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) (citing Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001). Here, it is at least possible that the Complaint could be saved by amendment to include additional allegations regarding Defendants alleged policies and conduct. Thus, Defendant's motion on Plaintiff's Section 1983 claim should be granted with leave to amend.
C. Second Claim - Title VII Sex Discrimination Claim
Defendant asserts that Plaintiff's second claim for relief should be dismissed because she fails to state facts necessary to support a Title VII sex discrimination claim. Def. Mot. Dismiss 17-19. Plaintiff responds that she has sufficiently alleged her sex discrimination claim. Pl.'s Resp. Mot. Dismiss 27-30. Plaintiff's sex discrimination claim should not be dismissed.
Under 42 U.S.C. § 2000e-2(a) (“Title VII”), it is unlawful for an employer to “discharge any individual, or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex.” A successful discrimination action must demonstrate a prima facie case under the burdenshifting test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (9th Cir. 1980): that (1) Plaintiff belongs to a protected class, (2) she was performing according to her employer's legitimate expectations, (3) she suffered an adverse employment action, and (4) similarly situated male employees were treated more favorably or that “other circumstances surrounding the adverse employment action permit an interference that discrimination occurred.” Reynaga v. Roseburg Forest Prod., 847 F.3d 678, 690 (9th Cir. 2017) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
However, “because McDonnell Douglas dictates an ‘evidentiary standard, not a pleading requirement,' a plaintiff need not meet the McDonnell Douglas burden-shifting test at the motion-to-dismiss stage.” Nw. Infrastructure LLC v. City of Portland, 3:21-CV-00843-MO, 2021 WL 5912153, at *6 (D. Or. Dec. 14, 2021) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)). Rather, on a motion to dismiss, “a plaintiff need only make ‘sufficient, nonconclusory allegations plausibly linking' the adverse action taken by [the] defendant to the plaintiff's protected class.” Nw. Infrastructure, 2021 WL 5912153, at *6 (quoting Austin v. Univ. of Or., 925 F.3d 1133, 1138 (9th Cir. 2018)).
Here, Plaintiff has made sufficient, nonconclusory allegations plausibly linking Defendant's adverse employment actions to Plaintiff's protected class to show Defendant's intent to discriminate against Plaintiff contrary to Title VII.
First, Plaintiff has sufficiently alleged that she is a member of a protected class based on her gender.
Because Plaintiff sufficiently establishes that she is a member of a protected class based on her gender, the Court does not consider whether the status as a domestic violence victim, absent a consideration of one's gender, similarly permits a finding that one is a member of a protected class. See Navarro v. Block, 72 F.2d 712, 715-17 (9th Cir. 1995) (recognizing that an alleged policy to treat domestic violence 911 calls as non-emergency calls can form the basis for an equal protection claim).
Second, Plaintiff has plausibly alleged that she experienced an adverse employment action when she was subjected to a number of internal investigations following her report to CCSO of Deputy Kearns' abuse. ¶¶ 35, 40, 50. An adverse employment action is “any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in a protected activity.” Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002) (quoting Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000)). Such adverse treatment includes actions that “materially affects compensation, terms, conditions, or privileges” of employment. 42 U.S.C. § 2000e-2(a)(1). At least one judge in this district has recognized that an internal investigation could be considered an adverse employment action. Manley v. Clackamas Cty. Sherriff's Off., 3:18-cv-02060-MO, 2020 WL 363388, *3 (D. Or. Jan. 21, 2020) (finding that material disputes of fact existed whether an employee suffered adverse employment actions because it was disputed whether the employee “was subject[ed] to an internal investigation as a result of him reporting allegedly inappropriate conduct”). Thus, at this early stage of the proceedings, Plaintiff has alleged sufficient facts to plausibly demonstrate that the internal affairs investigations constituted adverse employment actions.
Plaintiff has also sufficiently alleged a link between her membership in a protected class and Defendant's adverse employment actions: Plaintiff alleges that she was discriminated against on the basis of her gender when she was intentionally targeted and subjected to multiple internal investigations during Deputy Kearns' criminal proceedings while CCSO waited to bring any internal investigations against Deputy Kearns at the same time. See Compl. ¶ 63. Despite Defendant's contention that Plaintiff has not met one of the elements of the McDonnell Douglas framework-because she does not point to any similarly situated individuals outside of her protected class who were treated more favorably, Def. Mot. Dismiss 18-Plaintiff is not required to make such a showing at this stage in the proceedings. See Swierkiewicz, 534 U.S. 506, 510 (2002) (“The prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement.”). In sum, Plaintiff's sex discrimination claim should not be dismissed.
D. Third Claim - Title VII Hostile Work Environment Claim
A plaintiff establishes a hostile work environment by demonstrating that an employer's conduct is “sufficiently severe or pervasive to alter the conditions of [the plaintiff's] employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (internal quotations omitted). An abusive working environment must be “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). Conduct is objectively offensive if it is such that a reasonable person would find it hostile or abusive. Id. Importantly, the “objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (internal quotations omitted).
Defendant broadly argues that Plaintiff's hostile work environment claim should be dismissed because her allegations are “confusing, vague, and insufficient to put Defendant on notice of a hostile work environment claim.” Def. Mot. Dismiss 19. Defendant does not expound on its contention that Plaintiff's allegations are confusing and vague and merely asserts that “Plaintiff's allegations are insufficient to demonstrate that she was subjected to, and suffered from, a hostile work environment because of her gender.” Id. at 21.
The Court is not persuaded. Plaintiff has sufficiently plead necessary facts to support a Title VII hostile work environment claim. Plaintiff alleged that “Defendant's conduct . . . was unwelcome and was sufficiently severe or pervasive to alter the conditions of Plaintiff's employment and create a hostile, intimidating, and offensive work environment based on her sex.” Compl. ¶ 69. In particular, Plaintiff alleged that her work environment was adversely affected frequently and in severe ways, including (1) when a supervisor, who is a close ally of Deputy Kearns, refused Plaintiff's request for leave; (2) when, during daily roll call where Plaintiff was the only woman present, Plaintiff was harassed about her complaints of workplace harassment; (3) when HR failed to investigate Plaintiff's complaints concerning her multiple internal affairs investigations and reports of internal leaks to aid Deputy Kearns during his criminal trial; and (4) when Plaintiff was subjected to another internal investigation in June 2021. Compl. ¶ 50. As such, Defendant's motion on this ground should be denied.
E. Fourth and Sixth Claims - Whistleblowing Claims
i. Legal Standards
Pursuant to ORS 659A.199(1), an employer may not discriminate or retaliate against an employee who “has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.” Under ORS 659A.230(1), an employer may not discriminate or retaliate against an employee who “has in good faither reported criminal activity by any person . . . [or] has in good faith brought a civil action proceeding against an employer.”
To establish a prima facie case under either statute, a plaintiff must demonstrate that (1) she was engaged in a protected activity; (2) she suffered an adverse employment decision; and (3) there was a causal link between the protected activity and the adverse employment decision. See Brunozzi v. Cable Communications, Inc., 851 F.3d 990, 998 (9th Cir. 2017) (stating for retaliation under ORS 659A.199); Roberts v. Springfield Util. Bd., 6:19-CV-01595-MC, 2021 WL 5748883, at *10 (D. Or. Dec. 2, 2021) (citing Manatt v. Bank of Am., 339 F.3d 792, 800 (9th Cir. 2003)) (stating for discrimination under ORS 659A.230).
ii. ORS 659A.199 - Whistleblowing Retaliation
Defendant appears to argue that Plaintiff has not alleged any adverse employment action to support her claim for whistleblowing retaliation. Def. Mot. Dismiss 22. Plaintiff has sufficiently alleged facts demonstrating that she suffered an adverse employment decision as a result of her good faith reports that a violation of law occurred. Under Oregon law, a plaintiff must meet a ‘relatively low bar' to demonstrate that an employment action is materially adverse.” Meyer v. State by and through Oregon Lottery, 292 Or.App. 657, 680 (2018) (citing Burlington Michael v. Caterpillar Financial Services Corp., 496 F.3d 584, 596 (6th Cir. 2007), cert. den., 552 U.S. 1258 (2008)). Plaintiff has alleged that she was subjected to multiple internal investigations during her employment, including two investigations after she reported Deputy Kearns' conduct and ahead of Deputy Kearns' Oregon criminal trial. As already noted above, those internal investigations constitute adverse employment actions for the purpose of this Motion to Dismiss. Thus, Defendant's motion on this ground should be denied.
iii. ORS 659A.230 - Discrimination for Initiating Civil Proceedings
Defendant further argues that Plaintiff is unable to assert a claim pursuant to ORS 659A.230, because ORS 659A.230(1) only protects public employees who report an employer's violation of law. Def. Mot. Dismiss 22 (citing Walker v. Oregon Travel Info. Council, 367 Or. 761, 777-78 (2021)). Defendant incorrectly relies on Walker, which construed on a different statute than the one at issue here. The Oregon Supreme Court in Walker examined ORS 659A.203, not ORS 659A.230. See Walker, 567 Or. 777. ORS 659A.230 does not require that a public employee report an employer's violation of law; rather, the relevant statute permits a finding of liability when a public employee reports criminal activity “by any person.” ORS 659A.203. Thus, Plaintiff is entitled to assert a claim under ORS 659A.230 on the basis that she reported Deputy Kearns' criminal activity to a CCSO supervisor. Thus, Defendant's motions on these claims should be denied.
F. Fifth Claim - Discrimination Against a Domestic Violence Victim
Under Oregon law, an employer may not “discriminate or retaliate against an individual with regard to promotion, compensation or other terms, conditions or privileges or employment because the individual is a victim of domestic violence, harassment, sexual assault or stalking.” ORS 659A.290(2)(b). To establish a claim pursuant to ORS 659A.290(2)(b), plaintiff must establish that “(1) she was a victim of sexual assault or stalking; (2) she suffered an adverse employment action; and (3) there exists a causal connection between [the] plaintiff's sexual assault or stalking and the adverse employment action.” Gillis v. Wal-Mart Stores Inc., 03:11-CV-01520-HZ, 2013 WL 1623925, at *14 (D. Or. Apr. 15, 2013).
Defendant contends that Plaintiff's fifth claim should be dismissed because she has not alleged a sufficient adverse employment action to support her claim for relief. Def. Mot. Dismiss 24. Again, as was concluded above, the Court finds that Plaintiff has sufficiently alleged that her internal affairs investigations constitute adverse employment actions that support Plaintiff's claim for relief. Defendant's motion on this claim should be denied.
G. Seventh Claim - Defamation
Defendant argues that Plaintiff fails to state a claim for defamation. Def. Mot. Dismiss. 25-28. Plaintiff concedes the dismissal of her claim for defamation. Pl.'s Resp. 8. The Court accepts Plaintiff's concession, and Plaintiff's seventh claim for relief for defamation should be dismissed.
H. Eighth Claim - Negligent Hiring and Retention
Finally, Defendant asserts that Plaintiff fails to state a claim for negligent hiring and retention. Def. Mot. Dismiss. 28-30. Fearing v. Bucher, 328 Or. 367, 372 (1999). An employer can be liable for “negligently placing an employee with known dangerous propensities or dangerous propensities which could have been discovered by a reasonable investigation, in a position where it is foreseeable that he could injure plaintiff in the course of the work.” Chesterman v. Barmon, 82 Or.App. 1, 4 (1988). To determine whether an employee acts within the course of work, a court considers “(1) whether the act occurred substantially within the time and space limits authorized by the employment; (2) whether the employee was motivated, at least partially, by a purpose to serve the employer; and (3) whether the act is of a kind which the employee was hired to perform.” Id.
Defendant argues that Plaintiff has failed to allege that it was foreseeable to CCSO that Deputy Kearns could injure Plaintiff and that the incidents of abuse occurred while Deputy Kearns was on duty. Id. at 29-30. In response, Plaintiff argues that she has plausibly alleged that it was foreseeable to CCSO that Deputy Kearns could injure Plaintiff given Deputy Kearns' previous violent incident with his ex-girlfriend. Pl.'s Resp. 46. Plaintiff further asserts she has plausibly alleged that Deputy Kearns was acting within the course of his employment when he injured Plaintiff, because Deputy Kearns assaulted Plaintiff while attending mandatory CCSO training in Nevada. Id. (citing Branford v. Washington Cty., Oregon, No. 3:17-CV-94-SI, 2019 WL 1957951 (D. Or. May 2, 2019)).
Plaintiff has plausibly alleged that it was reasonably foreseeable that CCSO knew or should have known of Deputy Kearns' propensity for violence given his previous altercation with a former girlfriend. Thus, the narrow issue is whether Plaintiff has sufficiently alleged that Deputy Kearns injured Plaintiff during the course of work.
The Court finds that Plaintiff has not plausibly alleged that Deputy Kearns assaulted Plaintiff during the course of work. Although Deputy Kearns assaulted Plaintiff while he was in Nevada to attend mandatory work training, this allegation alone is not a sufficient link to demonstrate that he acted within the time and space limits authorized by his employment when he abused Plaintiff. Plaintiff does not allege that he was on duty or acting within the scope of his employment when he abused Plaintiff. Moreover, Plaintiff does not allege that Deputy Kearns was hired to cultivate an intimate relationship with Plaintiff or that his actions toward Plaintiff furthered CCSO's interests. Thus, Plaintiff's eighth claim for negligent hiring and retention should be dismissed. At this early stage in the proceedings, however, Plaintiff should be granted leave to amend the Complaint and the opportunity to replead facts to support that claim.
RECOMMENDATION
Defendant's Motion to Strike, ECF 8, should be DENIED. Defendant's Motion to Dismiss, ECF 8, should be GRANTED as to Plaintiff's section 1983 claim, negligent hiring and retention claim, and defamation claim. Defendant's Motion to Dismiss should be DENIED as to all Plaintiff's remaining claims. Further, Plaintiff should be granted leave to amend her complaint.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.