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Branford v. Washington County

United States District Court, D. Oregon

August 28, 2017


          Daniel Snyder, Carl Post, and John David Burgess, Law Offices of Daniel Snyder, Of Attorneys for Plaintiff.

          Andrea Barraclough, Portland City Attorney's Office, Of Attorneys for Defendants City of Portland and Jeffrey Myers.



         Angela Branford, a Deputy Sheriff in the Washington County Sheriff's Office (“WCSO”), brings this lawsuit under 42 U.S.C. §1983, Title VII, and Oregon state law against Washington County (the “County”); Washington County Sheriff Pat Garrett; WCSO employees or former employees Jonathan Christensen and John Black; the City of Portland (the “City”); and Portland Police Bureau Detective Jeffrey Myers. ECF 14 (First Amended Complaint). Before the Court are Myers's motion to substitute the City as the sole defendant for Plaintiff's state law claims against Myers (ECF 27) and the City's motion, joined by Myers, to dismiss all claims asserted against the City and Myers. ECF 16. For purposes of the pending motions only, the City and Myers are collectively referred to as “Defendants.” For the reasons explained below, Defendants' motions are granted.


         In her First Amended Complaint, Plaintiff alleges the following facts. The Washington County Sheriff's Office tolerates, and subjects female employees to, sexual misconduct by male officers. ¶¶ 21, 22. During or before 2014, Defendant Christensen, Plaintiff's training officer and supervisor, initiated a sexual relationship with Plaintiff, which continued intermittently for several years. ¶¶ 24, 25. Plaintiff tried to end the relationship with Christensen several times. Christensen responded by pressuring Plaintiff to continue a sexual relationship with him. ¶ 25. Christensen began stalking Plaintiff, including while on-duty, and used County resources to do so. ¶ 26. On or about March 7, 2015, after Plaintiff tried to break off the relationship, Christensen grabbed and choked Plaintiff at her home. ¶ 27. Christensen thereafter made explicit and implicit threats of further physical violence to coerce Plaintiff to have sexual intercourse with him. ¶ 28. Plaintiff initially did not report Christensen's assault or misconduct. Plaintiff was afraid to report Christensen to command staff at the WCSO because of the way other female employs had been treated after complaining of sexual harassment, the failure by the WCSO to discipline perpetrators of sex and gender discrimination, and because she feared retaliation. ¶ 29.

         In April 2015, after a newspaper report published allegations of widespread sexual harassment of female Sheriff's Office employees, the WCSO began an in-house investigation. ¶ 30. During the investigation, Plaintiff was interviewed about Christensen. After Plaintiff's interview regarding Christensen, her workplace became increasingly hostile. ¶ 36.

         The WCSO referred the investigation of Christensen to the Portland Police Bureau (“PPB”). Detectives Myers and Nathan Wollstein of the PPB were assigned to conduct the investigation of Christensen. ¶ 31. Myers met with Plaintiff and interviewed her at his office at PPB. During the interview, Myers requested Plaintiff's cell phone. Plaintiff did not want to give Myers her cell phone because it contained personal and intimate information not relevant to any investigation. Myers promised Plaintiff that if she allowed him to copy the hard drive of her cell phone, a copy of the phone's hard drive would never be shared with anyone else. Myers told Plaintiff that anyone who needed to view the contents of her phone to prosecute Christensen would only be permitted to do so at Myers's desk and would not receive a copy of its contents. As witnessed by Wollstein and victim advocate Susan Lehman, Myers told Plaintiff, “No one will get a copy of your phone.” ¶ 32.

         On May 19, 2016, Plaintiff was again subjected to sexual harassment by a WCSO officer, Justin Ulrich. ¶ 37. On May 23, 2016, Plaintiff met with Defendant Garrett and Defendant Black. At the time, Defendant Black was the commander in charge of the WCSO internal affairs section. Plaintiff told Garrett and Black about Ulrich's misconduct. ¶ 38. During that interview, Black said to Plaintiff, “So I am going to ask you. What kind of relationship did you have with Ulrich?” Plaintiff responded, “We did not have a relationship.” Black replied, “Are you sure you don't text each other? Do you Facebook?” Black tried to get Plaintiff to say that she had a personal relationship with Ulrich when, in fact, none existed. ¶ 38.

         Two days later, on May 25, 2016, Plaintiff was asked to meet with Myers regarding another investigation of a different WSCO officer, Nick Markos. During this meeting, Myers revealed that, contrary to his earlier express promise not to allow anyone to copy the data that he extracted from Plaintiff's cell phone the prior year, he had given PPB Internal Affairs a copy of that data. Myers also informed Plaintiff that PPB Internal Affairs had then given a copy to WCSO Internal Affairs and that Defendant Black had the contents of all of the data from her cell phone. In Plaintiff's presence, Myers and Black spoke by telephone regarding the issue, and Black explained that the County had the legal right to all of the contents of Plaintiff's cell phone and that Plaintiff had no rights. Black refused to return the WCSO's copy of the data taken from Plaintiff's cell phone. ¶ 39.

         Between May 25, 2016, and August 15, 2016, Black sent a copy of the confidential data extraction from Plaintiff's phone to another County employee, Elmer Dickens. Dickens then sent a private investigator, Charles Faulk, a copy of the confidential data extraction. Faulk is not a County employee. Dickens directed Faulk to view the contents of the extraction, including Plaintiff's personal material unrelated to any criminal investigation. Faulk viewed the contents and may have deleted some of the contents. On August 22, 2016, Faulk sent Dickens four DVDs containing the data. ¶ 43.

         Based on these allegations, Plaintiff asserts 14 claims for relief, five of which are brought against either the City of Portland or PPB Detective Myers. The first two claims for relief allege that the County discriminated against Plaintiff on the basis of her sex and gender, in violation of federal and state law. Claims three through six allege that the County violated Oregon statutes prohibiting whistleblower retaliation. Claim seven alleges that the County discriminated and retaliated against Plaintiff based on her status as a victim of domestic violence, harassment, stalking, and sexual assault.

         Plaintiff's eighth claim alleges that the City of Portland and Myers “aided, abetted, incited, compelled, and coerced the unlawful employment practices of the County . . . against [Plaintiff] by providing her private and confidential information, the data extraction from her mobile telephone, to the County.” ECF 14, ¶ 80. Plaintiff further alleges that the City and Myers violated Or. Rev. Stat. § 659A.030(1)(g) and that their actions constituted an unlawful employment practice.

         Plaintiff's ninth claim for relief, brought under 42 U.S.C. § 1983 against all Defendants except the City of Portland, alleges that Myers's procurement and copying of Plaintiff's cell phone and his distribution of its data violated Plaintiff's property rights and deprived Plaintiff of equal protection and due process in violation of the Fifth, Fourth, Sixth, and Fourteenth Amendments of the U.S. Constitution.

         Plaintiff's eleventh claim is brought against the County, the City, and Myers. Plaintiff alleges that those Defendants invaded Plaintiff's privacy by knowingly and intentionally disseminating intimate visual recordings of images of Plaintiff, private emails, and private texts, knowing that Plaintiff had a reasonable expectation of personal privacy at the time the visual recordings were made or recorded. As a result, Plaintiff alleges, the data from Plaintiff's cell phone was provided to the County, Black, and other individuals-including a non-employee of the County-even though none of it was related to any legitimate business purpose of WSCO.

         Plaintiff's twelfth claim alleges that the County, the City, and Myers breached their duty of confidentiality to Plaintiff by disclosing Plaintiff's private data to persons responsible for sexual harassment, physical injury, discrimination, and retaliation. Plaintiff's thirteenth and fourteenth claims allege battery and intentional infliction of emotional distress against the County and Christensen.

         At all material times, Myers was a detective employed with the Portland Police Bureau. ¶ 20. Plaintiff alleges that the City and Myers each acted individually and jointly under color of state law to deprive Plaintiff of her civil rights, including her rights to life, liberty, and property. ¶¶ 19, 20.

         Plaintiff asserts jurisdiction under 28 U.S.C. §§ 1331 and 1343, federal question and civil rights jurisdiction, respectively. Plaintiff requests that the Court invoke its supplemental jurisdiction under 28 U.S.C. § 1367 with respect to all causes of action based on Oregon state law, asserting that Plaintiff's state claims arise from the same nucleus of operative facts as her federal claims against the City and Myers. ...

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