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Branford v. Washington County

United States District Court, D. Oregon

May 2, 2019

ANGELA BRANFORD, Plaintiff,
v.
WASHINGTON COUNTY, OREGON; PAT GARRETT; JONATHAN CHRISTENSEN; JOHN BLACK, and THE CITY OF PORTLAND, OREGON; and JEFFREY MYERS, Defendants.

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

          Karen O'Kasey, Hart Wagner LLP, Of Attorneys for Defendants Washington County, Pat Garrett, and John Black.

          Jonathan Christensen, pro se.

          OPINION AND ORDER

          MICHAEL H. SIMON, DISTRICT JUDGE.

         Plaintiff Angela Branford, a former deputy in the Washington County Sheriff's Office (“WCSO”), asserts claims under 42 U.S.C. § 1983; Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; and Oregon state law against Washington County (“the County”), Washington County Sheriff Pat Garrett, and WCSO employees or former employees Jonathan Christensen and John Black.[1] (Defendants Washington County, Pat Garrett, and John Black, but excluding Jonathan Christensen, are collectively referred to as the “Washington Defendants.”) The Washington Defendants move for summary judgment against all of Branford's claims against them. In response, Branford concedes her state law claim alleging breach of confidentiality and her claims against the County (but not against Defendants Garrett, Black, and Christensen) for violations of her constitutional rights under 42 U.S.C. § 1983. Branford cross-moves for partial summary judgment on her claim of battery against Defendant Christensen. For the reasons that follow, the Court grants in part and denies in part the motion filed by the Washington Defendants and grants Branford's motion for partial summary judgment against Christensen.

         STANDARDS

         A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

         “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the non-moving party bears the burden of designating “specific facts demonstrating the existence of genuine issues for trial.” Id. “This burden is not a light one.” Id. The Supreme Court has directed that in such a situation, the non-moving party must do more than raise a “metaphysical doubt” as to the material facts at issue. Matsushita, 475 U.S. at 586.

         BACKGROUND[2]

         Angela Branford previously worked as a jail deputy in the Washington County Sheriff's Office for almost ten years, from July 2008 until June 2018.[3] ECF 82-1 at 2. In 2010, Branford passed her probationary period and became a permanent deputy sheriff. From the time she began her employment until the filing of her complaint, Branford was not subjected to any formal disciplinary procedures and received only positive or satisfactory job performance reviews. The WCSO certified Branford only as a jail deputy and never as a patrol deputy, and she worked exclusively in the Washington County Jail. ECF 82-1 at 2. Branford, however, received cross-training in law enforcement skills, such as room-clearing, handling high-risk stops, and crisis negotiation, and she was issued a service firearm that she was required to wear while on duty and in uniform outside of the secure perimeter of the jail. ECF 94 at 2-3.

         The WCSO has a predominantly male workforce. Branford describes the WCSO as having a “long history” of “comments, remarks, and behavior by . . . male supervisors and coworkers . . . that were offensive in nature and based on sex and gender.” ECF 94 at 3. She describes a working environment permeated with joking of a frank sexual nature or involving sexual innuendo. Id. During her employment at the WCSO, Branford alleges that she was subjected to numerous instances of sexual harassment and sexual assault and that this harassment was so severe that it constituted a hostile work environment. In her First Amended Complaint, Branford describes harassment by the following employees of the WCSO: Sergeant Kelly Degman, Sergeant Daniel Cardinal, Sergeant Jonathan Christensen, Sergeant Shane Siemiller, and Deputy Justin Ulrich, as described more fully below. She also complains of retaliation for reporting several instances of sexual harassment.

         A. Sergeant Kelly Degman

         In October or November of 2011, Branford became upset with Sergeant Kelly Degman because he was making crude comments to coworkers at work about her personal and private life. During a smoke break, Branford told Sergeant Red Wortham that Sergeant Degman was making inappropriate comments and crude jokes to coworkers about Braford's consensual relationship with another WCSO employee. ECF 82-1 at 9; ECF 96-3 at 8; ECF 96-3 at 6. As she explains, however, Branford did not want Wortham to report Degman's behavior to command staff because Degman was “well-liked and [Branford] didn't want [Degman] to be retaliated against, [Branford] just wanted [Degman] to stop” joking about her. ECF 102-3 at 11. Branford believes that Wortham eventually spoke to Degman about his behavior. ECF 82-1 at 12. After Branford spoke to Wortham, and Wortham spoke to Degman, Degman stopped making inappropriate comments about Branford's relationship.

         Sometime in 2012, however, Degman made an offensive comment about Branford's underwear to an inmate in the Washington County Jail in the presence of Branford. ECF 94 at 7; ECF 82-1 at 11. Branford and Degman were working with a mentally ill inmate, who began talking about what color underwear Branford must have been wearing that day. Degman told the inmate, “No, you have it all wrong. She wears crotchless panties.” ECF 82-1 at 54. Branford did not report Degman's comment to any WCSO supervisors or to WCSO human resources or file a complaint at the time. ECF 82-1 at 11.

         In June 2016, Branford sent an email to Sheriff Garrett in which she complained of policy violations committed by Degman, although it is not clear to which specific events she was referring. ECF 82-1 at 55. In July of 2016, the WCSO investigated Branford's complaints about Degman. Branford met with Shawn Fisher, a WCSO employee in the Services Division, and the two of them discussed Degman's comments. ECF 82-1 at 56. It is unclear what was the outcome of the investigation.[4] Branford also states in her responses to interrogatories that she did not report Sergeant Degman to WCSO before filing her lawsuit. ECF 82-10 at 3.

         B. Sergeant Daniel Cardinal

         In 2014, Sergeant Daniel Cardinal asked Branford when he would get to see her breasts. She responded, that was not going to happen. ECF 94 at 11-12. She also describes an incident in late 2014 or early 2015 in which Sergeant Cardinal contacted her at home while he was on duty and out on patrol. Cardinal ask Branford if he could come to her home to use her bathroom. ECF 94 at 16. She agreed. When Cardinal arrived at Branford's home, Cardinal exposed himself to her and asked if she wanted to play with his genitals. She declined. Branford also alleges that Cardinal stated at the time, “It's nice, isn't it.” ECF 82-10 at 5. Branford did not report this incident to the WCSO, but she did disclose it to investigators from the Portland Police Bureau in the spring of 2015. ECF 94 at 17.

         C. Sergeant Jonathan Christensen

         Branford met Sergeant Christensen through her work for the WCSO when he led a training session for WCSO staff. ECF 94 at 14. Sometime in 2013 or 2014, Branford and Christensen began a consensual romantic and sexual relationship. During the course of the relationship, Branford described Christensen's behavior as growing more controlling. ECF 94 at 15. Branford attempted on several occasions to end her relationship with Christensen but was unsuccessful. ECF 94 at 15.

         On March 7, 2015, while Sergeant Christensen was on duty, he drove his patrol car to Branford's home. ECF 94 at 18. Christensen demanded that Branford let him into her home, but she refused, stating that she wanted to end their relationship. ECF 94 at 18. The two got into a heated argument. Christensen put his hands around Branford's neck and choked her until she promised that she would continue to have a relationship with him. ECF 94 at 18.

         On April 17, 2015, Sheriff Garrett and several other Washington County officials received an anonymous email, detailing allegations of inappropriate sexual behavior by three employees of the WCSO: Jonathan Christensen, Daniel Cardinal, and Nick Markos. ECF 82-2 at 3. A similar email was sent to a local newspaper, and the newspaper published an article describing inappropriate sexual behavior by WCSO employees.

         The anonymous email was sent on a Friday, and sometime early the following week, the WCSO determined that a thorough investigation by an outside law enforcement agency would be appropriate. The WCSO referred the investigation of Christensen, Cardinal, and Markos to the Portland Police Bureau (“PPB”). ECF 82-2 at 3. PPB Detectives Myers and Wollstein were assigned to conduct the investigation of Christensen.

         During the PPB investigation of Christensen, Detectives Myers and Wollstein interviewed Branford. During the interview, Myers requested Branford's cell phone. Branford did not want to give Myers her cell phone because it contained personal and intimate information and material that she believed was not relevant to the investigation. Myers promised Branford that if she allowed him to copy the hard drive from her cell phone, a copy of the phone's hard drive would never be shared with anyone else. According to Branford, Myers told Branford that anyone who needed to view the contents of her phone would only be permitted to do so at Myers's desk and would not receive a copy of the phone's contents. Branford contends that in the presence of Wollstein and victim advocate Susan Lehman, Myers told Branford, “No one will get a copy of your phone.” On either April 27, 2015 or June 27, 2015, Branford signed a consent form allowing PPB to copy of the contents of her cell phone. ECF 82-8 (both dates listed on consent form).

         It was during an interview with PPB investigators that Branford revealed for the first time that Christensen had choked her. ECF 82-1 at 24. At the urging of PPB investigators, Branford filed a restraining order against Christensen in June of 2015. Christensen contested the restraining order, and a hearing was held in Lane County Circuit Court. WCSO learned of the choking incident through the Portland Police Bureau investigation and the restraining order proceeding. ECF 82-2 at 5. WCSO immediately opened an investigation into Christensen and placed Christensen on administrative leave while the WCSO investigated Branford's allegations. ECF 82-2 at 7. On August 12, 2015, WCSO terminated Christensen's employment. On July 12, 2016, Christensen pleaded guilty to strangulation constituting domestic violence. See ECF 86-1 at 10.

         After the investigation into Christensen began in April of 2015, Branford felt strain, both emotionally and mentally. She took paid leave between April 27 and May 7, 2015. On May 7, 2015, WCSO Undersheriff Mori called Branford and told her that he could no longer keep her on paid leave and that she would need to return to work. Between April and December of 2015, Branford took paid FMLA leave. According to Branford, she did not take any unpaid FMLA leave because she had been told by a union representative that taking unpaid leave would adversely affect her seniority at the WCSO.

         On May 25, 2016, Branford learned that the contents of her cell phone had been shared with WCSO's internal affairs investigator, Lieutenant John Black, as part of his investigation into Nick Markos, with whom Branford also had a consensual sexual relationship. ECF 82-3 at 12.[5] Branford learned that the contents of her cell phone had been shared with WCSO investigators without her consent.

         On May 26, 2016, Branford told Sergeant Arrowood that the PPB had given WCSO's Lieutenant Black access to her cell phone contents and conveyed that she was very upset. According to Branford, Sergeant Arrowood was unsympathetic and told Branford to go home early that day. Arrowood told Branford not to return to work until she spoke to Lieutenant Black about the cell phone issue. ECF 82-10 at 13. On May 30, Branford had a conversation with Lieutenant Black, in which she told him about the stress that the investigation and the workplace was causing her.

         During that conversation, Lieutenant Black asked Branford, “What if I could get you a job completely outside of the Sheriff's Office?” Branford felt threatened by this question. Lieutenant Black explained that he had offered Branford an opportunity outside of the Sheriff's office because “the idea was to give [her] a chance to go to a place that wouldn't cause her to have potentially another meltdown or something[.]” ECF 102-1 at 3-4.

         D. Sergeant Shane Siemiller

         At various times in 2014 and 2015, Sergeant Shane Siemiller was Branford's direct supervisor. Branford contends that Sergeant Siemiller said to her, several times during the course of a year and in front of other deputies, “Hey your shoes are untied.” ECF 83-1 at 3. This statement would then cause Branford to bend over, and deputies would then stare at her. ECF 94 at 13. The WCSO contends that it first learned about Siemiller's comments after the filing of this lawsuit in 2017. ECF 83-1 at 3. Siemiller states that the comment was part of a “running joke” between Siemiller and Branford relating to Branford's decision to get breast enhancement surgery. Id. The WCSO conducted an investigation into the allegation of these comments by Siemiller and concluded that Siemiller violated the WCSO's workplace harassment policies. The WCSO demoted Siemiller and required him to attend counseling.

         E. Deputy Justin Ulrich

         In May 2016, Branford attended a firearms training session taught by WCSO Deputy Justin Ulrich. The training session occurred during the criminal investigation into Christensen. Branford told Deputy Ulrich that she was having difficulty focusing because of all of the rumors and talk behind her back about the incident involving Christensen and the related investigation. According to Branford, Ulrich then said to her, “Why don't I take you in the back of your van and give you something to take your mind off of it.” ECF 82-12 at 5.

         Branford reported this comment to Sheriff Garrett, and the WCSO conducted an investigation into the incident. Id. at 1. During the investigation, Branford met with Sheriff Garett and Lieutenant Black. Id. at 3. During the interview, Black asked Branford what kind of relationship she had with Ulrich. When she said she did not have any relationship with Ulrich, Black asked Branford if she was “sure” that she and Ulrich did not text or Facebook each other. The WCSO sustained the complaint against Ulrich, and Sheriff Garrett issued an Imposition of Discipline suspending Ulrich without pay for 60 hours and removing him from any instructor duties for a year. ECF 82-13 at 3-4.

         F. Rumors

         Branford contends that after the allegations of sexual misconduct at the WCSO became public, the workplace was full of rumors. Branford was deeply troubled by the gossip about herself and Christensen and felt that there were many rumors about her circulating in the WCSO. The WCSO attempted to take steps to stop these rumors and gossip by sending an email reminding all WCSO employees about privacy issues, but Branford states that the email only made the gossip worse. Additionally, Branford reported that some of her acquaintances were less friendly after her complaint against Christensen became public. Specifically, she describes that WCSO Deputy Tran, who normally was friendly towards her, did not say hello to her at intake one day. She described feeling shunned and ostracized at work as a result of the rumors.

         During 2015 and 2016, Branford spoke to other deputies at the WCSO and told them about rumors that she had heard from some individuals that other deputies were upset with her for reporting Christensen's behavior. She attempted to report these rumors to Sergeant Siemiller. According to Branford, Siemiller told her, “People will distance themselves from you and you can't stop it.” Branford Decl. ¶ 91. Siemiller also told Branford, “Its going to happen, just ignore it.” Branford also at one point complained to Sheriff Garrett about rumors in the workplace, and Sheriff Garrett sent several emails to WCSO supervisors, instructing them to do everything they could to curtail rumors. ECF 82-2 at 16.

         WCSO learned of Siemiller's comment that gossip is “going to happen, just ignore it” from Branford's tort claims notice in 2015, before she filed her lawsuit in 2017. The WCSO investigated Siemiller's comment, and Seimiller stated that he made the comment before learning that Branford had been the victim of abuse, and that Branford's concerns about gossip in the workplace had been extremely vague. The WCSO's investigation absolved Siemiller of misconduct, and the WCSO imposed no discipline on him. ECF 83-2 at 1.

         Branford also was the subject of a rumor that she had been sleeping with inmates at the jail. She did not mention these rumors in her complaint, nor did she identify them as an incident of retaliation in her complaint. Sheriff Garrett confirmed, however, that the WCSO did investigate allegations of blonde female employees sleeping with inmates at the Washington County Jail. The employees were discovered to be jail technicians, and the WCSO terminated their employment. Branford is blonde, and also works at the Washington County Jail.

         G. Assignments

         Due to the increased stress and gossip in the workplace, Branford requested assignments that would keep her busy and minimize her interactions with coworkers. She asked Sheriff Garrett if she could be assigned to one of three specific units: the Medical Observation Unit (“MOU”), the Rover One Unit, and the Intake Unit. ECF 82-2 at 16-17, 19. Sheriff Garrett believed that these three posts were among the most stressful assignments within the WCSO. He was concerned that a permanent assignment to one of these posts might worsen Branford's mental health, not improve it. ECF 82-2 at 19. After receiving a letter from Branford's then- attorney Elizabeth Inayoshi, Garrett agreed temporarily to assign Branford to one of these posts.[6]ECF 82-14. Eventually, at Branford's request, Branford stopped working exclusively at these three high-stress positions and returned to her normal duty station. ECF 82-1 at 52.

         H. Overtime

         Branford took paid administrative leave from April 27, 2015 until May 7, 2015, immediately after her initial reporting of Christensen's abuse and the restraining order proceeding. On May 7, 2015, Branford received a phone call from WCSO Undersheriff Mori, who told her that she could not remain on paid administrative leave indefinitely and needed to return to work on May 8, 2015. Upon her return to work, Branford checked her schedule and noticed that the overtime shifts that she had signed up for in May and June, before taking leave, had been reassigned to other employees. Branford was able to secure overtime shifts during this time period as they became available. In 2015, Branford worked 152 hours of overtime, approximately the same number of overtime hours that she worked in 2014 (159 hours). Branford reported that throughout the rest of 2015 and early 2016 it appeared to her as though overtime shifts that she recalled signing up for had been assigned to other employees, forcing her to accept other shifts as they became available, rather than her first-choice overtime shifts. Sergeant Mackley is responsible for scheduling overtime at the WCSO. ECF 102-3 at 9. In 2016, Branford worked 234 hours of overtime, which is consistent with other jail staff. ECF 80 at 2. Branford did not raise her concerns about missing overtime shifts with anyone in command staff at the WCSO. ECF 102-3 at 9.

         DISCUSSION

         A. Washington Defendants' Motion for Summary Judgment

         1. Hostile Work Environment

         Branford brings claims under Title VII, 42 U.S.C. § 2000e, and Or. Rev. Stat. § 659A.030, alleging that she was discriminated against on the basis of her gender.[7] Because Oregon law parallels that of Title VII, it is appropriate to consider Branford's federal and state claims together. See Tornabene v. Nw. Permanente, P.C., 156 F.Supp.3d 1234, 1242 (D. Or. 2015) (“The substantive analysis for discrimination under Title VII of the Civil Rights Act (42 U.S.C. § 2000e-2(a)) and ORS § 659A.030(b) is substantially similar, and courts often analyze such claims together.”).

         Title VII of the Civil Rights Act prohibits employment discrimination based on “race, color, religion, sex, or national origin.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting 42 U.S.C. § 2000e-2(a)(1)). An employer violates Title VII by, among other things, offering terms or conditions of work to employees of one gender that are less favorable than those the employer offers to employees of another gender. Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000). Examples include refusing to hire on account of gender or paying less for the same work, imposing more onerous duties for the same pay, or otherwise permitting less favorable working conditions, based on gender. Id. Harassment of an employee based on the employee's gender, i.e. sexual harassment, is prohibited sex discrimination if committed or tolerated by the employer because the harassment becomes a “new and onerous term of employment.” Id.; see also Swenson v. Potter, 271 F.3d 1184, 1191 (9th Cir. 2001) (“By tolerating sexual harassment against its employees, the employer is deemed to have adversely changed the terms of their employment in violation of Title VII.”).

         “Sexual harassment falls into two major categories: hostile work environment and quid pro quo.” Brooks, 229 F.3d at 923. “A hostile work environment claim involves a workplace atmosphere so discriminatory and abusive that it unreasonably interferes with the job performance of those harassed. A quid pro quo claim, as the name implies, occurs when a supervisor demands sexual favors in return for a job benefit.” Id. In addition, “employees who are subject to adverse employment actions because they lodged complaints of sexual harassment can raise a retaliation claim under Title VII.” Id.

         To prevail on a claim alleging hostile work environment, a person must show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris, 510 U.S. at 21 (internal quotation marks and citations omitted); see also Dawson v. Entek Intern, 630 F.3d 928, 937-38 (9th Cir. 2011) (“A plaintiff may establish a sex hostile work environment claim by showing that he was subjected to verbal or physical harassment that was sexual in nature, that the harassment was unwelcome and that the harassment was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment.”); Swenson, 271 F.3d at 1191 (“To prove a hostile work environment ...


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