Sherman v. Clackamas Cnty. Sheriff's Office
| Docket Number | 3:21-cv-01005-HL |
| Decision Date | 23 June 2022 |
| Parties | CARIN SHERMAN, Plaintiff, v. CLACKAMAS COUNTY SHERIFF'S OFFICE, Defendant. |
| Court | U.S. District Court — District of Oregon |
FINDINGS AND RECOMMENDATION
Plaintiff Carin Sherman asserts this employment discrimination action against her employer, Defendant Clackamas County Sheriff's Office (“CCSO”). This matter now comes before the Court on Defendant's Motion to Strike and Motion to Dismiss. The Court heard oral argument on these motions on March 9, 2022. ECF 26. For the reasons set forth below, Defendant's Motion to Strike should be denied, and Defendant's Motion to Dismiss should be granted in part and denied in part.
The Court recites the following facts from Plaintiff's complaint and assumes that they are true for the purpose of reviewing the pending motion. Bell Atl. Corp. v Twombly, 550 U.S. 544, 572 (2007). Plaintiff began working as a jail service technician at the Clackamas County Jail in September 2017. Compl. ¶ 10, ECF 1. Sometime in 2018, Plaintiff began a romantic relationship with Deputy Brandon Kearns (“Deputy Kearns”), a field training officer with Defendant Clackamas County's Sheriff Office (“CCSO”). Id. ¶ 11.
Before Plaintiff's romantic relationship with Deputy Kearns, but while he worked for CCSO, officers were dispatched to Deputy Kearns' home for an incident involving his then-girlfriend. Id. ¶ 13. Deputy Kearns' then-girlfriend called the police and reported that Deputy Kearns was attempting to kill himself with a gun. Id. She reported that Deputy Kearns grabbed her and would not let her leave the home during the encounter. Id. CCSO officers did not classify the call as a domestic violence (“DV”) call, and they did not refer the matter to an outside agency for investigation. Id.
In January 2019, Deputy Kearns brutally strangulated Plaintiff and forced soap into her mouth in Clackamas, Oregon, a week after she had attempted to end their relationship. Id. ¶ 12. Plaintiff did not immediately report the assault out of fear for Deputy Kearns' retaliation. Id. ¶ 17. Around the same time, however Plaintiff told another CCSO deputy about her “volatile relationship” with Deputy Kearns, which often resulted in Deputy Kearns going to Plaintiff's apartment when she asked him not to. Id. For several months after the January 2019 assault, Deputy Kearns used his position within CCSO to intimidate Plaintiff, including accessing CCSO reports to determine Plaintiff's whereabouts. Id. ¶ 19.
In May 2019, Plaintiff traveled to Nevada with Deputy Kearns, who was attending mandatory training for CCSO. Id. ¶ 19. On May 11, while in Nevada, Deputy Kearns assaulted and strangulated Plaintiff again. Id. Deputy Kearns grabbed Plaintiff by the neck, bruised her vocal cords, and taunted that he could kill her. Id. Plaintiff reported the assault to a Clackamas County officer who subsequently reported the crimes. Id. ¶ 20.
On May 15, Plaintiff began the process of bringing charges against Deputy Kearns in both Oregon and Nevada, and Deputy Kearns was placed on paid administrative leave with CCSO. Id. ¶¶ 21, 23, 25. On May 16, Plaintiff was assigned a domestic violence victims' advocate (“advocate”) from CCSO. According to Plaintiff the advocate was used as a way to funnel information from Plaintiff to CCSO administration to the benefit of CCSO. Id. ¶ 42. Deputy Kearns was not arrested for over a week, and Plaintiff was instructed to leave the state for safety until Deputy Kearns was in custody. Id. ¶¶ 22, 24.
In June 2019, Deputy Kearns was charged with domestic battery by strangulation, a felony, and domestic battery, a misdemeanor in Nevada. Id. ¶ 26. Although both Plaintiff and Deputy Kearns were CCSO employees, CCSO did not relinquish its control of the investigation to an outside office and retained primary control of the investigation. Id. ¶ 27. On September 25, 2019, Deputy Kearns entered into a plea deal, and he was convicted in Nevada of disorderly conduct and violation of a protection order. Id. ¶ 28.
Deputy Kearns remained on administrative leave for a year following his Nevada convictions. Id. ¶¶ 29, 42. Although CCSO has a policy that “promotes zero tolerance” for domestic violence, CCSO determined that Deputy Kearns could only be removed for “just cause,” and his Nevada convictions did not rise to that standard. Id. ¶ 30. Additionally, CCSO delayed its personal investigation of Deputy Kearns' conduct pending his Oregon trial. Id.
According to Plaintiff, CCSO delayed its personal investigation so that Deputy Kearns would not have an internal investigation file that would incriminate him during his Oregon trial. Id.
Deputy Kearns' Oregon trial was set to begin in May 2020. Id. ¶ 32. On April 14, Deputy Kearns' attorney requested that CCSO turn over any exculpatory or impeachment information that could be found in Plaintiff's employment records; CCSO accurately responded that none existed. Id. ¶ 33. On April 22, Deputy Kearns' attorney filed a Motion to Compel any internal affairs investigations of Plaintiff. Id. ¶ 34. Although Plaintiff had not been the subject of any investigations up until that point, Plaintiff was notified less than a week later, on April 28, that she was being investigated for a complaint that was made against her by a CCSO supervisor who was an ally of Deputy Kearns. Id. ¶¶ 34, 35, 36.
According to Plaintiff, the CCSO supervisor “set up” Plaintiff: the supervisor instructed Plaintiff to take a domestic violence report, which is something outside her job scope. Id. ¶ 36. Plaintiff promptly reported the issue to her own supervisor, but the complaint was filed against Plaintiff to damage her credibility ahead of the Oregon trial. Id. ¶ 35, 36. Unlike with Deputy Kearns, CCSO promptly investigated the complaints made against Plaintiff before Deputy Kearns' Oregon trial. Id. ¶ 37.
On June 3, 2020, Plaintiff learned that CCSO administration knew that there was an information leak within CCSO and that “manufactured information” was being provided to Deputy Kearns. Id. ¶ 38. On June 16, Plaintiff received a second notice that she was being investigated due to another complaint made against her, this time by a CCSO employee who was also closely aligned with Deputy Kearns. Id. ¶ 40. On July 24, Plaintiff learned that CCSO administration was aware of the “concerning nature” of the investigations employed against Plaintiff, but CCSO did nothing to stop the harm caused to Plaintiff. Id. ¶ 41.
On November 5, 2020, Deputy Kearns entered into a plea deal in his Oregon case: he pleaded to the lesser offense of menacing, a misdemeanor, and the State of Oregon dropped the felony strangulation charge. Id. ¶ 44. The case was not referred to the Oregon Department of Justice (“DOJ”) or any other outside agency to prosecute the matter. Id.
On November 10, 2020, Deputy Kearns resigned from CCSO. Id. ¶ 45. CCSO told Plaintiff that it would not release a statement related to Deputy Kearns' Oregon conviction. Id. ¶ 46. Plaintiff responded that CCSO was protecting Deputy Kearns over Plaintiff, and she expressed deep frustration that CCSO allowed Deputy Kearns to remain on leave for as long as it did and allowed him to resign. Id. Following the report of her frustrations of CCSO's handling of Deputy Kearns' actions, a member of CCSO administration contacted Plaintiff and attempted to discourage Plaintiff from speaking out further about CCSO's processes. Id. ¶ 47.
Plaintiff continued to experience hostility at CCSO following Deputy Kearns' resignation. Id. ¶ 50. On November 25, Plaintiff reported to CCSO that she believed that CCSO employees were inappropriately accessing police reports and photographs from Deputy Kearns' Oregon case, but CCSO never followed up with Plaintiff. Id. ¶ 49. On February 3, 2021, a CCSO supervisor-and close ally of Deputy Kearns-refused to approve Plaintiff's request for leave. Id. In April 2021, Plaintiff was harassed about her complaints of workplace harassment and discrimination during the daily roll call. Id. That same month, CCSO's Human Resources (“HR”) department reported that it did not investigate (1) Plaintiff's complaints regarding the retaliatory internal affairs investigations issued against her or (2) the information leaks during Deputy Kearns' Oregon trial. Id. In June 2021, Plaintiff was subjected to another internal affairs investigation. Id.
Plaintiff initiated this action on July 8, 2021, id. at 29, and pursuant to a tolling agreement, the date of the Complaint relates back to April 29, 2021. Id. ¶ 8. Plaintiff asserts eight claims for relief: (1) a 42 U.S.C. § 1983 claim for violation of the Equal Protection Clause under the Fourteenth Amendment, id. ¶¶ 51-60; (2) sex discrimination pursuant to the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2(a), id. ¶¶ 61-67; (3) hostile work environment under Title VII, id. ¶¶ 68-71; (4) retaliation for a good faith complaint of illegal conduct under Or. Rev. Stat. § (“ORS”) 659A.199, id. ¶¶ 72-75; (5) discrimination on the basis of Plaintiff's identity of a domestic violence victim pursuant to ORS 659A.290(2)(b), id. ¶¶ 7679; (6) discrimination for initiating civil proceedings under ORS 659A.230, id. ¶¶ 80-83; (7) defamation, id. ¶¶ 84-88; and (8) negligent hiring and retention, id. ¶¶ 89-98. Defendant has now filed a Motion to Strike and a Motion to Dismiss. Def. Mot. Dismiss & Mot. Strike (“Def. Mot. Dismiss”), ECF 8.
Federal Rule of Civil Procedure 12(f) allows the court to strike any “redundant, immaterial, impertinent, or scandalous material.” To be impertinent or immaterial, the allegations must not have any possible bearing on the...
To continue reading
Request your trial