Mockler v. Multnomah County

• Decision Date: 31 March 1998
• Docket Number: No. 96-35895.,No. 96-36122.,96-35895.,96-36122.
• Citation: 140 F.3d 808
• Parties: Lana MOCKLER, Plaintiff-Appellee, v. MULTNOMAH COUNTY; Dan Noelle; and Dennis Fitz, Defendants-Appellants, and Pieter Van Dyke; Multnomah County Deputy Sheriff's Association; and Robert Skipper, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

140 F.3d 808

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

No. 96-35895.

No. 96-36122.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 5, 1998.

Decided March 31, 1998.

Lisa E. Lear, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, Oregon, for defendants-appellants.

Steve Brischetto, Portland, Oregon, for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon Helen J. Frye, District Judge, Presiding. D.C. No. CV 93-01117-HJF.

Before: PREGERSON, TROTT, and TASHIMA, Circuit Judges.

PREGERSON, Circuit Judge:

Plaintiff Lana Mockler, a former Deputy Sheriff with the Multnomah County Sheriff's Office, sued Sheriff Dan Noelle, Multnomah County, and Deputy Dennis Fitz ("defendants") for hostile environment sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and under Oregon law, ORS § 659.030. Mockler also raised an equal protection claim under 42 U.S.C. § 1983 and a state law claim of intentional infliction of emotional distress.

After trial, a jury returned a verdict finding Multnomah County liable for sexual harassment and retaliation. The jury found that Deputy Fitz and the Sheriff were liable for equal protection violations, and that Fitz was liable for intentional infliction of emotional distress. The jury awarded Deputy Mockler $195,000 in compensatory damages and $30,000 in punitive damages. The defendants filed motions for judgment as a matter of law as to all of Mockler's claims. The district court denied these motions, and the defendants appealed.

Among the issues on appeal, defendants contend that the district court erred in instructing the jury that Multnomah County was liable for sexual harassment and retaliation unless it could prove that it took prompt and effective action to remedy the Title VII violations.¹ Defendants argue that, instead, Deputy Mockler bore the burden of showing that Multnomah County failed to take such remedial action. We have jurisdiction under 28 U.S.C. § 1291. We find that the challenged jury instruction was erroneous, but we conclude that the error was harmless. Therefore, we AFFIRM the district court's denial of defendants' motion for judgment as a matter of law on Mockler's Title VII claim.

I.

On April 25, 1989 Mockler was hired as a Sheriff's Deputy with the Multnomah County Sheriffs Office ("MCSO"). At roll call on March 18, 1992, Deputy Fred Hill complained that Deputy Mockler was not taking proper care of the patrol car that they shared. In particular, he complained that she would often leave trash in the car and failed to fill the gas tank after her shift. Upon overhearing Hill's comments, Deputy Fitz stated that someone had to "deal with the fucking cunt" and "get that crack under control." He also said that he "didn't give a fuck if [Mockler is outside of the room] and hears this. She's a bitch." One of the officers present during this outburst told Fitz that Deputy Tolliver, Mockler's boyfriend, was not going to like the things he was saying. In response, Fitz said that "anybody that would fuck that [Deputy Mockler] is too lazy to jack off."

When Deputy Mockler learned of this incident she filed a complaint with Chief Deputy Randy Amundsen. Amundsen and Sergeant Wray Jacobs investigated Mockler's complaint. Jacobs chose not to interview all of the people who were present at the incident. Captain Harold Amidon, Commander of the Internal Affairs Unit ("IAU"), was not involved in this investigation. Amidon testified that the investigation by Amundsen and Jacobs did not comply with MCSO's usual procedures for investigating a complaint.

Deputy Mockler complained about this incomplete and informal investigation to Sheriff Robert Skipper.² After this meeting, the Sheriff required the IAU to conduct a formal investigation. Subsequent to the formal investigation, Mockler learned that Deputy Fitz would receive a written reprimand. Mockler complained that this discipline was inadequate and recommended that he receive at least three to five days of unpaid leave. The Sheriff ultimately imposed a one-day suspension without pay, but allowed Fitz to work overtime the day after his suspension in order to make up the lost day's pay.

After Deputy Mockler filed her complaint against Deputy Fitz, her supervisor told her that she should "dot her i's and cross her t's." She thereafter was subjected to increased disciplinary action. For example, Fitz obtained one of Mockler's custody reports and complained about its quality with her supervisor. Deputy Van Dyke also forwarded one of Mockler's reports to Fitz, who forwarded it to IAU for review. Mockler was verbally disciplined regarding her reports on several occasions, and she received a Notice of Deficiency for one such report.

Deputy Mockler also received both verbal and written criticism from her supervisors for various offenses including running a red light while making a right hand turn, driving too fast, showing up late for roll call, and being sarcastic over the police radio. Mockler presented testimony from various other officers that showed that other deputies were not being reprimanded for similar conduct.

Finally, Deputy Mockler did not obtain several positions that she applied for after she filed her complaint. Mockler showed that although she was a top candidate for a position on a community policing unit, the officers making the appointments thought that the position was "too politically sensitive" a place for her because she was a "political hot potato." Mockler also sought to be a "Coach" for new recruits in the Sheriff's Office. Deputy Fitz openly sought to prevent her appointment, even after she was placed on the Coach's list. He and Deputy Van Dyke collected her custody reports and complained to her supervisors that the alleged poor quality of these reports should prevent her from being a Coach. Although she was appointed as a Coach, Mockler was not assigned any recruits. The Lieutenant who made these assignments stated that he didn't think that Mockler should be a Coach because of the "big fiasco" involving the lawsuit.

After these incidents occurred, Deputy Mockler went on administrative leave for three months due to stress and eventually transferred to the Portland Police Bureau in June 1994.

II.

We turn now to the issue involving the challenged jury instruction. "Jury instructions must be formulated so that they fairly and adequately cover the issues presented, correctly state the law, and are not misleading." Chuman v. Wright, 76 F.3d 292, 294 (9th Cir.1996) (citation omitted). The district court has substantial latitude in tailoring jury instructions, and we review those instructions for an abuse of discretion. See Larez v. Holcomb, 16 F.3d 1513, 1516 (9th Cir.1994) (citation omitted). "If the instructions are challenged as a misstatement of the law, they are then reviewed de novo." City of Long Beach v. Standard Oil Co., 46 F.3d 929, 933 (9th Cir.1995) (citation omitted).

Defendants contend that the district court erred by instructing the jury that Multnomah County had the burden of proving that it took prompt and effective action to remedy the hostile workplace environment. The district court instructed the jury:

If you find that the plaintiff, Lana Mockler, was subjected to a hostile workplace because of her sex, the defendant Multnomah County is liable unless it proves by a preponderance of the evidence that it took prompt and effective remedial measures that were reasonably calculated to end the hostile workplace after a management level official of the defendant Multnomah County knew, or in the exercise of reasonable care should have known, that plaintiff Mockler was being subjected to a hostile workplace.

(Emphasis added.) Defendants objected to this instruction on the ground that "the burden of proof in this case ... is on the plaintiff [and not on the defendants] with respect to proving that inadequate remedial measures were taken once the county knew of the sexual harassment work environment that's alleged in this case."

Defendants are correct. The proper allocation of the burden of proof to show employer liability for hostile workplace environment is set forth in Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983). In Katz, the Fourth Circuit explained that "the plaintiff must show that the employer knew or should have known of the harassment, and took no effectual action to correct the situation. This showing can ... be rebutted by the employer directly, or by pointing to prompt remedial action reasonably calculated to end the harassment." Id. (emphasis added.)³ The Katz court noted further that when "the employer's supervisory personnel manifest[] unmistakable acquiescence in or approval of the harassment, the burden on the employer seeking to avoid liability is especially heavy." Id. The district court therefore erred in placing on Multnomah County the burden of proving that it took effective remedial action to end the hostile workplace environment.

But an error in instructing the jury in a civil case does not require reversal if the error was "more probably than not harmless." Coursen v. A.H. Robins Co., 764 F.2d 1329, 1337 (9th Cir.1985) (jury instruction that improperly shifted the burden of proof to plaintiffs in Dalkon Shield products liability case was more probably than not harmless because other juries given same instruction in separate damage trials found for plaintiffs notwithstanding the error); Larez, 16 F.3d at 1516-17 (instruction that shifted one element of plaintiff's burden to the defense was more probably than not harmless because jury found that defendant engaged in extraordinary misconduct and the instruction was ambiguous and isolated). The harmless error standard used...