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Keyes v. Johnson

United States District Court, D. Oregon, Portland Division

December 11, 2017



          JOHN V. ACOSTA United States Magistrate Judge.


         Before the court is defendants Washington County (the "County") and Washington County Land Use and Transportation's ("LUT") (collectively, "County Defendants" or "Defendants")

         Motion to Reconsider Ruling on Defendants' Motion for Summary Judgment or, in the Alternative, to Certify the Question to the Oregon Supreme Court, ECF No. 51 (the "Motion"). In its August 10, 2017 Opinion and Order, the court granted in part and denied in part Defendants' Motion for Summary Judgment, ECF No. 34. (Opinion and Order (ECF No. 49) ("Summary Judgment Opinion")). For the reasons set forth below, the court declines to reconsider its previous decision on the merits and will not certify the question to the Oregon Supreme Court.[1]


         Plaintiff Darkliss Keyes ("Keyes") alleges that Edward Dale Johnson ("Johnson"), an employee of LUT and another defendant to this case, harassed and sexually assaulted her while she performed court-ordered community service. She asserts claims under state and federal law. (First Amended Complaint, ECF No. 28.)

         Johnson began working for the County as a plumbing inspector in 1995 and became a Community Service Program Monitor in 2011, (Decl. of Neil Weingart (ECF No. 42) ("Weingart Decl."), Ex. 3 at 1.) His duties as such included coordinating and supervising those performing community service as part of a criminal sentence and, when necessary, taking "action to address and correct unacceptable performance or conduct of crew members, including non-compliance with safety or behavioral standards [and r]emov[ing] crew members from performing their duties . . .." (Declaration of Chris Gilmore (ECF No. 35) ("Gilmore Decl."), Ex. 11 at 1-2.)

         Johnson was familial- with the County and LUT's Harassment-Free Workplace Policy, which prohibited "acts of violence" including any conduct "sufficiently severe offensive, or intimidating to ... create a hostile abusive, or intimidating work environment" for an employee or member of the public. (Gilmore Decl, Ex. 8 ("Johnson Dep.") 73:14-19; Ex. 2 at 1.) Still, prior to the incidents giving rise to this suit, Johnson received formal discipline five times - twice for sexually charged conduct. (Id.) In 1998 and 2003, he received a written reprimands for making inappropriate sexual remarks to a coworker's wife at her home during business hours and for making inappropriate sexual and threatening remarks on the job, respectively. (Weingart Decl., Ex. 5 at 1; Ex. 7 at 1-2.) Johnson also gave at least one unsolicited back massage to a female supervisor, though there is no record of the supervisor reporting the massage. (Weingart Dec!., Ex. 8 ("Okazaki Dep."), 12:20-13:3; Weingart Decl, Ex. 10.)

         In 2013, Keyes was convicted of driving under the influence of intoxicants and sentenced to enhanced bench probation and court-ordered community service. (Gilmore Deck, Ex. 7 ("Keyes RE A") at 7-8; Weingart Decl, Ex. 16 ("Keyes Aff") ¶ 1.) On the morning of April 4, 2014, Keyes arrived at the parking lot of the Washington County Jail, the LUT pick-up site for community-service workers. (Gilmore Deck, Ex. 6 ("Police Rep.") at4.) Community Service Program Monitors picked up crews from those assembled in the parking lot each morning, to complete daily projects. (Weingart Deck, Ex. 1; Police Rep. at 4.) Keyes stood in line next to Ulan Moore ("Moore"), with whom Keyes had worked previously on another LUT work crew. (Weingart Decl., Ex. 14 ("Keyes Dep.") 35:16-23.)

         Johnson's project on April 4 was to dispose of deer carcasses. (Johnson Dep. 29:21-24; Keyes Dep. 36:17.) Keyes and Moore were the only workers on Johnson's crew. (Keyes Dep, 36:21-23; Keyes Aff. ¶ 3.) Johnson drove Keyes and Moore to and from their work sites in a county-owned van. (Keyes Aff ¶ 4; Police Rep. at 4.) During their lunch break, Keyes showed Moore pictures on her mobile phone. (Police Rep. at 5.) Johnson asked Keyes to show him what she and Moore had been looking at on her phone. (Id.) Based on Johnson's statements throughout the day, Keyes believed Johnson had the authority to arrest her or cause her to be arrested for any misconduct during her community service. (Keyes Aff. ¶ 7.) Thinking Johnson was enforcing a community service program rule, Keyes gave Johnson her phone, which depicted a photo of Keyes in a bathing suit. (Police Rep. at 5.) Johnson then asked Keyes if she had any "sexy pictures" on her phone. (Id.) Keyes replied that she did not and told Johnson she had a boyfriend and two children. (Id.) Johnson began talking about graphic and sexually explicit photos he had seen on a female coworkers's mobile phone. (Id.) After lunch, Johnson told Keyes she was to take "sexy pictures" of herself and bring them to community service the next day as a "homework" assignment. (Id; Keyes Aff. ¶ 8.)

         At the end of the workday, Johnson drove Keyes to a gas station across the street from the designated drop-off location, the Washington County Jail parking lot. (Police Rep. at 5; Keyes Aff. ¶ 9.) Keyes got out of the van, then reached back into the vehicle to retrieve her duffel bag. (Keyes Aff ¶ 9; Police Rep. at 5.) As she did so, Johnson grabbed her buttocks and genital area. (Police Rep. at 5-6; Keyes Aff. ¶ 9.) Upon realizing Johnson was groping her, Keyes moved away from Johnson as fast as she could. (Keyes Dep, 70:18-71:2.) Johnson did not attempt to keep Keyes from leaving but told Keyes that she was "a bad girl"" and that he would "teach [her] how to get a spanking." (Keyes Aff. ¶ 10; Police Rep. at 6.) When Keyes looked back at Johnson, he made a hand gesture simulating taking photos with a camera, which Keyes understood as a reference to the "homework" Johnson had assigned earlier in the day. (Keyes Aff. ¶ 10; Keyes Dep. 71:8-21.)

         Procedural History

         Keyes filed her initial complaint in 2015. (ECF No. 1.) The County Defendants filed motions to dismiss and for judgment on the pleadings, which the court granted in part and denied in part, and Keyes filed a First Amended Complaint in accordance with that ruling. (ECF Nos. 8, 26, 28.) In her operative complaint, Keyes alleges constitutional violations of the Fourth and Eighth Amendments under 42 U.S.C. § 1983, and common-law battery under Oregon law, against all defendants. (ECF No. 28.) Keyes also asserts a common-law negligence claim against the County Defendants. (Id.) The County Defendants moved for summary judgment on all claims against them. (ECF No. 34.) Johnson sought summary judgment as to only the constitutional claims against him. (ECF No. 37.)

         I. Summary Judgment ...

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