HUNT v. CITY of PORTLAND

• Decision Date: 24 September 2010
• Docket Number: Case No. 08-CV-802-AC.
• Citation: 726 F.Supp.2d 1244
• Parties: Lindsay HUNT, Plaintiff, v. CITY OF PORTLAND, an Oregon municipal corporation; William Hubner, an individual; Joseph Schilling, an individual; Eric Hendricks, an individual; Bryan Parman, an individual; Judy Brumfield, an individual; Leslie Pintarich, an individual; and Quency Ho, an individual, Defendants.
• Court: U.S. District Court — District of Oregon

726 F.Supp.2d 1244

Lindsay HUNT, Plaintiff,

v.CITY OF PORTLAND, an Oregon municipal corporation; William Hubner, an individual; Joseph Schilling, an individual; Eric Hendricks, an individual; Bryan Parman, an individual; Judy Brumfield, an individual; Leslie Pintarich, an individual; and Quency Ho, an individual, Defendants.

Case No. 08-CV-802-AC.

United States District Court, D. Oregon.

April 16, 2010.

Opinion Denying Reconsideration Sept. 24, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Dennis Steinman, Matthew C. Ellis, Kell Alterman Runstein, Portland, OR, for Plaintiff.

Jenifer M. Johnston, City of Portland Oregon City Attorney's Office, Portland, OR, for Defendants.

OPINION AND ORDER

ACOSTA, United States Magistrate Judge:

Findings and Recommendation

Plaintiff Lindsay K. Hunt (“Hunt”), filed this action against her former employer, the City of Portland (the “City”), as well as various police officers, including William Hubner, Joseph Schilling, Eric Hendricks, Bryan Parman, and Judy Brumfield (collectively “Defendants”). After dismissing various claims against various defendants, the claims that remain, as set forth in the Second Amended Complaint filed December 19, 2008, (the “Complaint”), are for retaliation based on protected speech under state law, gender discrimination under state law, and deprivation of Hunt's constitutional rights to free speech and equal protection under federal law. Currently before the court is Defendants' motion for summary judgment on all remaining claims. For the reasons set forth below, summary judgment on Hunt's retaliation claims based on Or.Rev.Stat. 659A.203 and 659A.230 is denied, and summary judgment on Hunt's gender discrimination, free speech, and equal protection claims is granted.

Background

The City hired Hunt as a police officer on July 27, 2006. (Hunt Dep. April 30, 2009 (“First Hunt Dep.”) 39:20-21.) On Hunt's first day, Officer Joe Schilling, co-coordinator of the Portland Police Bureau's (“Bureau”) field training and evaluation program, gave a speech to the newly sworn officers about the performance expected of them as probationary officers. (Schilling Aff. ¶ 3, First Hunt Dep. 43:2-8.) Officer Schilling started out by stating that “Joe Schilling has a job. You're trying to keep a job.” (Hubner Dep. 20:4-10.) He then explained that successful trainees are those that follow directives and avoid standing on tables and waving flags. He stated that if your name is not known or has not been heard by the training officers by the end of the training period, that is a good thing. (Hubner Dep. 22:6-25.) The purpose of the speech was to encourage the probationary officers to meet an expected standard of performance. (Schilling Dep. 38:22-23.) Hunt heard him say “Do whatever your coach tells you; and if you don't like it, get through it. If you want to make it to the next phase, you can be the kind of cop you want to after your probationary period.” (First Hunt Dep. 43:23-44:2.)

Hunt progressed through basic academy, entry phase, and advanced academy virtually without incident. The only questionable conduct occurred when she and Officer Leslie Pintarich, her field training officer at the time, accepted free hot chocolate from a 7-Eleven. (First Hunt Dep. 71:18-72:24.) Hunt explained that she tried to pay for the hot chocolate but that the male cashier continuously refused to take her money. After about five minutes, Officer Pintarich advised Hunt that they needed to leave. Officer Pintarich reminded Hunt that she had paid for her beverage every other night and that it was just 99 cents. (First Hunt. Dep. 71:18-72:24.) Hunt doesn't remember if she placed the money on the counter before she left. (First Hunt. Dep. 72:19-24.) Hunt later voiced her concern to Officer Pintarich that by failing to pay for the hot chocolate, the cashier might expect some special treatment in the future. (First Hunt. Dep. 72:1-8.)

During her training, Hunt became familiar with various City and Bureau policies, including the prohibition of discrimination and retaliation, and the procedures for reporting discriminatory or retaliatory conduct. She also received training on workplace harassment policies, ethics, policing and reporting generally inappropriate behavior, including the duty to report misconduct, and the need to promptly respond to requests for backup assistance from all of her colleagues. (Hunt Dep. July 9, 2009 (“Second Hunt Dep.”) 12:18-23, 43:16-24, 76:18-20, Johnston Decl. Exh. 14.)

Hunt began her field training in late May 2006 and was assigned to work nights with Officer Quency Ho, a certified field training officer for the Bureau. During their four days working together, Officer Ho referred to Hunt as a “princess” at least once a shift and as a “girly girl” on at least one occasion. (First Hunt Dep. 128:21-130:20.) Hunt recalls Officer Ho saying that “it's a boys' world and I need to starting acting like a boy if I'm going to make it, and I need to be more aggressive and play by the boys' rules.” (First Hunt Dep. 127:14-19.) He also complained about having to drive, stating “I'm done with this crap. Princess wants to be chauffeured around all night.” (First Hunt Dep. 133:11-12.) Officer Ho seemed more approachable by, and communicative with, male than female police trainees. (First Hunt Dep. 270:25-271:2.) Other police officers also used these names with regard to Hunt, stated that she thought she was too good to hang out with the “boys' club” and told her to “[s]top being a girly girl.” (First Hunt Dep. 128:1-20, 129:20-24.)

While working with Officer Ho, Hunt became concerned about his conduct as a police officer. (First Hunt Dep. 184:11-25.) Hunt generally alleges ¹ in the Complaint that Officer Ho ordered citizens to destroy deadly evidence, ordered Hunt to falsify police reports, used unauthorized, excessive, and unreasonable force on civilians, refused to fill out “use of force” reports, and took goods from a convenience store without paying. (Compl. at 1-2.) Hunt originally questioned Officer Ho about his conduct but, by the fourth evening, she stopped because he would become upset and intimidate her. (First Hunt Dep. 249:1-23.)

After completing her fourth shift with Officer Ho, Hunt contacted the Bureau training department to schedule an appointment with Officer Schilling to discuss Officer Ho's conduct. (First Hunt Dep. 278:17-279:8.) Hunt met with Officer Schilling and Officer Bill Hubner, co-coordinator of the Bureau's field training and evaluation program, and expressed her concerns about Officer Ho. (First Hunt Dep. 279:13-16.) She complained about Officer Ho's driving, his failure to wear seat belts, his taking free items from 7-Eleven, his lack of knowledge about laws and report requirements, his requiring subjects to provide identification during conversation stops, his use of excessive force in using his gun and shoving a suspect up against a wall, his taking aggressive action without obtaining all of the appropriate information, his failure to properly handle evidence, and his failure to write reports on his use of his weapon. (First Hunt Dep. 279:17-280:12, Def.'s Concise Statement of Facts Ex. 16.) Hunt also reported that she had taken free hot chocolate while working with Officer Pintarich, and that she ran a red light, failed to properly preserve evidence, and submitted a false police report while working with Officer Ho. (Second Hunt Dep. 114:18-115:24.) Officer Schilling then called Sergeant Bryan Parman, advised him that Hunt “actually has something” and suggested that he come and listen to Hunt's complaints. (First Hunt Dep. 280:15-20.) Hunt then repeated her concerns to Sergeant Parman. (First Hunt Dep. 280:22-23.)

At the end of her report, Hunt expressed concern that she had stood up on the table and waved a flag despite the admonitions in the “Joe Schilling has a job” speech, and that she was afraid it would impact her employment with the Bureau. (First Hunt Dep. 285:1-8.) She was assured that everything was fine and that she didn't need to worry about it. (First Hunt Dep. 285:10-12.) However, later in the conversation, Officer Schilling acknowledged that Hunt had raised a flag and advised her that she had a choice, she needed to think about what she was doing, pick her battles carefully, and not make waves. (First Hunt Dep, 287:2-20, 307:1-8.) Officer Hubner remembers Officer Schilling telling Hunt that was not what “standing in the table and raising the flag” meant and that she had an ethical responsibility to step up and confront things that were wrong, unjust, unfair, or illegal. (Hubner Dep. 47:3-9.) During this meeting, either Officer Schilling or Officer Hubner expressed concern that the Bureau had been losing a disproportionate number of females out of the Northeast Precinct for a quite some time but that the Bureau had not yet had a chance to look into it. (First Hunt Dep. 282:19-283:3.)

After sharing her concerns, Hunt indicated that she did not want to work with Officer Ho any longer and that she wanted to be transferred out of the Northeast Precinct. (First Hunt Dep. 285:15-20.) The Bureau gave Hunt a few days off, agreed to transfer her to the Central Precinct immediately, and assured her that it would look into the issues that she had raised. (First Hunt Dep. 285:24-25, 287 21-24.) The Bureau eventually decertified Officer Ho as a field training officer based on his failure to wear seat belts and his improper handling of evidence. (Ho Dep. 176:11-20.)

Later that day, Officer Pintarich contacted Hunt to discuss her reports of misconduct. (First Hunt Dep. 294:16-19.) Officer Pintarich advised Hunt that it was not her job to police the police, that she needed to pick her battles, do what her coach says, get through probation and then be the kind of cop she wanted to be once she was approved and off probation. (First Hunt Dep. 294:22-295:6.)

Officer Schilling testified that on May 31,...