Mockler v. Multnomah County

• Decision Date: 31 March 1998
• Docket Number: No. 96-35895,96-36122,96-35895
• Citation: 141 F.3d 1177,1998 WL 166529
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Lana MOCKLER, Plaintiff-Appellee, v. MULTNOMAH COUNTY; Dan Noelle; Dennis Fitz, Defendants-Appellants, and Pieter Van Dyke; Multnomah County Deputy Sheriff's Association; Robert Skipper, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1177

141 F.3d 1177

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Lana MOCKLER, Plaintiff-Appellee, v. MULTNOMAH COUNTY; Dan Noelle; Dennis Fitz, Defendants-Appellants and Pieter Van Dyke; Multnomah County Deputy Sheriff's Association; Robert Skipper, Defendants.

No. 96-35895, 96-36122.

United States Court of Appeals Ninth Circuit.

Argued and Submitted January 5, 1998.

Decided March 31, 1998.

Appeal from the United States District Court for the District of Oregon, Helen J. Frye, District Judge, Presiding.

MEMORANDUM ^*

Before PREGERSON, TROTT, and TASHIMA, Circuit Judges.

Because the parties are familiar with the factual and procedural history of this case, we will not recount it here except as necessary to clarify our decision.

We review the denial of a motion for judgment as a matter of law de novo. Acosta v. City and County of San Francisco, 83 F.3d 1143, 1145 (9th Cir.1996). "Judgment as a matter of law is proper if the evidence, construed in the light most favorable to the non-moving party, allows only one reasonable conclusion and that conclusion is contrary to that reached by the jury." Id. The jury's verdict is reviewed to determine whether it is supported by substantial evidence. Murray v. Laborers Union Local No. 324, 55 F.3d 1445, 1452 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1847, 134 L.Ed.2d 948 (1996). Substantial evidence is "such relevant evidence as reasonable minds might accept as adequate to support a conclusion." Id. (citation omitted).

I. The District Court Properly Denied Defendants' Motion for Judgment as a Matter of Law on the Equal Protection Claim

Defendants allege that they are entitled to judgment as a matter of law on Mockler's § 1983 claim because (1) Mockler failed to show that Fitz's conduct was the result of a "custom or practice" of the Sheriff's Office; (2) Sheriff Dan Noelle was not a proper party to the § 1983 claim, and (3) Deputy Fitz's conduct did not meet the standard required for an imposition of punitive damages.

A. Custom or Practice

Mockler presented substantial evidence to show a custom and practice of sexual harassment and retaliation in the Sheriff's Office. See Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir.1992) (plaintiff may show custom by proving "the existence of a widespread practice that ... is so permanent and well settled as to constitute a 'custom or usage' with the force of law.") (citation omitted). Several high-ranking female officers that worked in the Sheriff's Office both before and after Sheriff Skipper became Sheriff in 1989 testified that the work environment in the Sheriff's office was punctuated with sexual jokes, sexually discriminatory comments, inappropriate touching, and derogatory comments. They also testified to sexual discrimination in training, assignments, and promotion under Sheriff Skipper's tenure. While such discrimination was common, female officers stated that they would not file a complaint due to the fear of retaliation. Skipper testified that he "knew we had problems with sexual harassment" in 1990. But the only action that he took in relation to sexual harassment between 1990 and 1992 was to pass out some training materials to his supervisors. In the instant action, the Sheriff knew that Fitz continued to interfere with Mockler's activities, yet he chose not to discipline him. An employer's failure to discharge or reprimand employees for repeated violations of federal law is evidence of custom. See Larez v. City of Los Angeles, 946 F.2d 630, 647 (9th Cir.1991) (jury may find custom of excessive force where police chief failed to reprimand officers for use of excessive force).

Viewing the evidence in the light most favorable to Mockler, defendants failed to show that a reasonable jury could only conclude that there was no custom or practice of sexual harassment in the Sheriff's Office.

B. Dan Noelle Was a Proper Party

After Sheriff Skipper retired, Mockler properly substituted newly elected Sheriff Dan Noelle as a party defendant under FRCP 25, which provides that: "When a public officer is a party to an action in an official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action does not abate and the party's successor is automatically substituted as a party...." Moreover, Oregon law permits "[a]n action [to] be maintained by or against any public officer in this state in an official character, when ... the officer does not represent any of the public corporations mentioned in ORS 30.310, for any of the causes of action specified in such section and ORS 30.320." ¹ ORS § 30.400. This section further provides that a judgment entered against an officer under this section "may be enforced against the officer personally, and the amount thereof shall be allowed to the officer in the official accounts of the officer." ORS § 30.400.

C. Punitive Damages

Deputy Fitz's conduct met the standard required for an imposition of punitive damages. Punitive damages are available under § 1983 when "the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983). Deputy Fitz repeatedly (1) monitored Mockler, (2) filed complaints against her, (3) encouraged her supervisors to discipline her, (4) spread rumors about her, (4) attempted to interfere with her appointment as a Coach, and (5) stared and glared at her in the workplace after he was directly ordered to leave her alone. This evidence supports a jury finding that Deputy Fitz harassed Mockler in reckless and callous disregard of her federally protected right to be free from harassment and retaliation in her workplace.

II. The District Court Properly Denied Defendants' Motion for Judgment as a Matter of Law on Plaintiff's Claim of Intentional Infliction of Emotional Distress

To prove a claim of intentional infliction of emotional distress, a plaintiff must show that (1) the defendant intended to inflict emotional distress, (2) the defendant's conduct did, in fact, cause plaintiff to suffer severe emotional distress, and (3) the defendant's conduct involved an extraordinary transgression of the bounds of socially tolerable behavior. McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841, 849 (1995). ²

First, there was evidence that Deputy Fitz intended to cause Mockler emotional distress. He engaged in a continuous effort to harass and demean Mockler by calling her derogatory names, spreading rumors, encouraging her supervisors to discipline her, filing complaints against her, glaring at her, and attempting to interfere with her appointment as a Coach. See Franklin v. Portland Community College, 100 Or.App. 465, 787 P.2d 489, 492 (1990) (jury may infer the specific intent to cause emotional distress when the defendant engages in a continuing pattern of discrimination and retaliation with an intent to demean the plaintiff); Palmer v. Bi-Mart Company, Inc., 92 Or.App. 470, 758 P.2d 888, 889-90 (1988) (supervisor engaged in course of harassment verbally and through notes with sexually explicit wording). She also showed that she suffered severe emotional distress as a result of his conduct, as she was in therapy, on medication, sought administrative leave for stress, and eventually transferred out of the Sheriff's Office. See Franklin, 787 P.2d at 493 n. 4 (plaintiff suffered severe stress where stress that lasted for two years caused him to take substantial time off of work).

Moreover, Mockler showed that Fitz's conduct involved an extraordinary transgression of the bounds of socially tolerable behavior. Language used to sexually harass may be deemed socially intolerable. Whelan v. Albertson's, Inc., 129 Or.App. 501, 879 P.2d 888, 891 (1994) (citing Lathrope-Olson v. Oregon Department of Transportation, 128 Or.App. 405, 876 P.2d 345, 346 (1994) (plaintiff told that "all women were good for was between their legs")). "If the content of statements alone is not dispositive, we also consider the context and repetition of the insults, in determining whether the statements were socially intolerable." Whelan, 879 P.2d at 891 (calling plaintiff "queer" or imitating his alleged feminine characteristics is not actionable in isolation, these acts may be seen as socially intolerable when repeated in front of customers and co-workers).

Deputy Fitz used derogatory language of a sexual nature against Mockler in front of her co-workers, and spread rumors about her sex life throughout the Sheriff's office. He engaged in a continuous pattern of discrimination and retaliation against her. Fitz's conduct was exacerbated by the fact that he was assisted by other officers that spread rumors, gave Mockler the silent treatment, and failed to provide her with assistance in work-related matters. ³ See Mauri v. Smith, 135 Or.App. 662, 901 P.2d 247, 255 (1994), rev'd on other grounds, 324 Or. 476, 929 P.2d 307 (1996) (policeman's conduct, combined with his failure to prevent another party's improper conduct, constituted socially intolerable behavior). Fitz's conduct caused more than a "temporary annoyance or injured feelings," and it consisted of more than "insults, harsh or intimidating words, or rude behavior." Hall v. May Department Stores Co., 292 Or. 131, 637 P.2d 126, 129 (1982), abrogated by McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841 (1995). The jury had substantial evidence upon which to base its conclusion that Deputy Fitz's conduct exceeded the bounds of socially tolerable behavior. ⁴

Finally, Mockler was entitled to the award of punitive damages for her intentional infliction of emotional distress claim. The Oregon Supreme Court has held...