Branford v. Washington County, Oregon et al
Filing
106
Opinion and Order - The Court GRANTS IN PART AND DENIES IN PART the Washington Defendants' Motion for Summary Judgment (ECF 79 ) and GRANTS Branford's Partial Motion for Summary Judgment against Defendant Christensen (ECF 84 ). Thus, the claims that remain for trial are: (1) Branford's sex discrimination claims under federal and state law against Washington County for maintaining a hostile work environment based on the actions of Branford's coworkers at the WCSO (Plaintiff 's First and Second Claims); (2) Branford's § 1983 claim against Christensen (Plaintiff's Ninth Claim); (3) Branford's battery claim against Christensen (Plaintiff's Thirteenth Claim, damages only); and (4) Branford's intentional infliction of emotional distress claim against Christensen (Plaintiff's Fourteenth Claim). Signed on 5/2/2019 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ANGELA BRANFORD,
Plaintiff,
Case No. 3:17-cv-94-SI
OPINION AND ORDER
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, 1000 SW
Broadway, Suite 2400, Portland Oregon, 97205. Of Attorneys for Plaintiff.
Karen O’Kasey, HART WAGNER LLP, 1000 SW Broadway, Twentieth Floor, Portland, Oregon
97205. Of Attorneys for Defendants Washington County, Pat Garrett, and John Black.
Jonathan Christensen, pro se.
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
PAGE 1 – OPINION AND ORDER
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
1
The Court previously ruled that City of Portland Detective Jeffrey Myers is entitled to
qualified immunity and declined to exercise supplemental jurisdiction over Branford’s remaining
state law claims against the City of Portland.
PAGE 2 – OPINION AND ORDER
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.
BACKGROUND2
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 crosstraining in law enforcement skills, such as room-clearing, handling high-risk stops, and crisis
2
The Court draws these facts from the depositions, answers to interrogatories, reports, and other
documents submitted by the parties. At this time, the Court overrules the evidentiary objections
raised by the Washington Defendants. The Court, however, only considers evidence that is
relevant to Branford’s claims as alleged in her First Amended Complaint when deciding the
Washington Defendants’ motion for summary judgment. See Lindsey v. Clatskanie People’s Util.
Dist., 140 F. Supp. 3d 1077, 1096 (D. Or. 2015) (“Federal Rules of Evidence 401, 402, and 403
are duplicative of the summary judgment standard.”).
3
The termination of Branford’s employment is not at issue in this lawsuit.
PAGE 3 – OPINION AND ORDER
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
PAGE 4 – OPINION AND ORDER
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
4
The Court was not provided with the documents, which appear to be exhibits 132
and 135 to Branford’s deposition, that describe the outcome of this investigation.
PAGE 5 – OPINION AND ORDER
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
PAGE 6 – OPINION AND ORDER
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,
PAGE 7 – OPINION AND ORDER
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
5
Sometime between May 25, 2016, and August 15, 2016, Lieutenant Black sent a copy
of the confidential data extraction from Branford’s cell phone to Elmer Dickens, counsel for
Washington County. In preparation for discovery in this case, Dickens sent a copy of the
contends of Branford’s cell phone to Charles Faulk, a private investigator, so that Faulk could
redact personal and sensitive photographs from the copy of the contents of Branford’s cell
phone. ECF 81 at 2.
PAGE 8 – OPINION AND ORDER
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.
PAGE 9 – OPINION AND ORDER
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
PAGE 10 – OPINION AND ORDER
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 thenPAGE 11 – OPINION AND ORDER
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.
6
Branford characterizes her assignment to these posts as an accommodation for her
disability. She does not, however, assert any disability-related claims in this lawsuit.
PAGE 12 – OPINION AND ORDER
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
In her response to the Washington Defendants’ Motion for Summary Judgment,
Branford characterizes both her Title VII claim and her Or. Rev. Stat. § 659A.030 claim as
hostile work environment claims. Although the Washington Defendants also move for summary
on a non-hostile-work-environment-based claim of gender discrimination under Or. Rev. Stat.
§ 659A.030, it does not appear that Branford intended her §659A.030 claim to be anything other
than a hostile work environment claim. See ECF 93 at 26.
7
PAGE 13 – OPINION AND ORDER
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 claim, a plaintiff must demonstrate conduct sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.”) (alteration, quotation marks, and citation omitted).
PAGE 14 – OPINION AND ORDER
The Court uses “a totality of the circumstances test to determine whether a plaintiff’s
allegations make out a colorable claim of hostile work environment.” Brooks, 229 F.3d at 923.
“The working environment must both subjectively and objectively be perceived as abusive.”
Brooks, 229 F.3d at 923 (quotation marks and citations omitted). In other words, a plaintiff must
show that a reasonable person would find the work environment to be “hostile or abusive” and
that the plaintiff in fact did perceive it to be so. Dawson, 630 F.3d at 988 (citing Faragher v. City
of Boca Raton, 524 U.S. 775, 787 (1998)); Brooks, 229 F.3d at 924 (“When assessing the
objective portion of a plaintiff’s claim, we assume the perspective of the reasonable victim.”).
Further, “the required showing of severity or seriousness of the harassing conduct varies
inversely with the pervasiveness or frequency of the conduct.” Brooks, 229 F.3d at 926.
(quotation marks and citations omitted). A single incident can suffice to support a hostile work
environment claim if the incident is sufficiently severe. Id.; see Freitag v. Ayers, 468 F.3d 528,
540 (9th Cir. 2006); Little v. Windermere Relocation, Inc., 301 F.3d 958, 968 (9th Cir. 2002)
(holding that “the employer’s reaction to a single serious episode may form the basis for a hostile
work environment claim”).
An employer’s liability for harassing conduct is evaluated differently depending on
whether the alleged harasser is a supervisor or a co-worker. McGinest v. GTE Serv. Corp., 360
F.3d 1103, 1119 (9th Cir. 2004). For a hostile work environment claim based on harassment by a
supervisor, an employer may be held vicariously liable, although the employer’s liability may be
subject to an affirmative defense. Id. When the harasser is a co-worker, however, the plaintiff
must prove that the employer “knew or should have known of the harassment but did not take
adequate steps to address it.” Id. (quoting Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir.
2001); Nichols v. Azteca Rest. Enters., 256 F.3d 864, 875 (9th Cir. 2001).
PAGE 15 – OPINION AND ORDER
When there has been harassment by a co-worker, the court considers whether the
harassment was an isolated incident or the result of multiple incidents. As explained by the Ninth
Circuit:
Because only the employer can change the terms and conditions of
employment, an isolated incident of harassment by a co-worker
will rarely (if ever) give rise to a reasonable fear that sexual
harassment has become a permanent feature of the employment
relationship. By hypothesis, the employer will have had no
advance notice and therefore cannot have sanctioned the
harassment beforehand. And, if the employer takes appropriate
corrective action, it will not have ratified the conduct. In such
circumstances, it becomes difficult to say that a reasonable victim
would feel that the terms and conditions of her employment have
changed as a result of the misconduct.
Brooks, 229 F.3d at 924. As the Ninth Circuit further noted:
A case involving a single incident of sexual harassment is
obviously distinct from one involving a series of incidents, which
the employer knows about and does nothing to correct. In such
circumstances, the non-action by the employer can fairly be
characterized as acquiescence, i.e., having changed the terms and
conditions of employment to include putting up with harassment
from other employees.
Id. at 924 n.4.
In addition, a victim, in proving the existence of a hostile work environment, cannot rely
on the alleged harasser’s improper conduct with other female employees that the victim did not
know about at the time of the harasser’s conduct directed at her. Brooks, 229 F.3d at 924.
“Harassment directed towards others of which an employee is unaware can, naturally, have no
bearing on whether she reasonably considered her working environment abusive.” Id. As the
Ninth Circuit explained, however:
The lack of sufficient discipline for an earlier and unknown act of
misconduct does not, after all, make the later misconduct more
severe or pervasive with respect to the harassed employee. Lack of
adequate discipline might be a relevant consideration in assessing
the employer’s liability once a hostile work environment is shown
PAGE 16 – OPINION AND ORDER
to exist, but it seems to have no logical bearing on whether there is
a hostile work environment in the first place.
Id. at 925 n.5 (emphasis added).
Regardless of whether a claim of hostile work environment is based on a single episode
or multiple occurrences, when co-worker harassment is alleged “the employer can be held liable
only where its own negligence is a cause of the harassment.” Swenson, 271 F.3d at 1191 (internal
quotation marks and citation omitted). That is because “Title VII liability is direct, not
derivative: An employer is responsible for its own actions or omissions, not for the co-worker’s
harassing conduct.” Id. at 1191-92. Thus, “[i]f the employer fails to take corrective action after
learning of an employee’s sexually harassing conduct, or takes inadequate action that emboldens
the harasser to continue his misconduct, the employer can be deemed to have ‘adopt[ed] the
offending conduct and its results, quite as if they had been authorized affirmatively as the
employer’s policy.’” Id. at 1192 (alteration in original) (quoting Faragher, 524 U.S. at 789). “On
the other hand, an employer cannot be held liable for misconduct of which it is unaware.” Id.
Finally, “[n]otice of the sexually harassing conduct triggers an employer’s duty to take
prompt corrective action that is reasonably calculated to end the harassment.” Id. (internal
quotation marks and citation omitted). “This obligation actually has two parts. The first consists
of the temporary steps the employer takes to deal with the situation while it determines whether
the complaint is justified. The second consists of the permanent remedial steps the employer
takes once it has completed its investigation.” Id.
a. Whether a Hostile Work Environment Existed
The Court identifies the following incidents that Branford argues, when considered in
their totality, constitute a work environment that is both subjectively and objectively hostile: (1)
Sergeant Degman discussing Branford’s private romantic relationship in crude terms; (2)
PAGE 17 – OPINION AND ORDER
Sergeant Degman telling a jail inmate in the presence of Branford that Branford wears crotchless
panties; (3) Sergeant Cardinal asking Branford if he could see her breasts; (4) Sergeant Cardinal,
while on duty, exposing himself to Branford at her home; (5) Sergeant Christensen choking
Branford until she agreed to continue a sexual relationship with him; (6) Sergeant Siemiller
telling Branford that her shoes were untied to get her to bend over; and (7) Deputy Ulrich
propositioning Branford to have sex with him in her van.8
Branford reports being very upset during her interviews with the Portland Police Bureau
about Christensen’s conduct, strongly suggesting that she subjectively perceived his conduct to
be offensive. When Ulrich made his offensive comment to Branford, she described in a
subsequent email that she “just wanted to leave” and found his comments inappropriate. ECF 8311; ECF 83-12 at 6. There is sufficient evidence from which a jury could find that Branford
subjectively found her workplace to be hostile and that she considered the harassment to be
severe and pervasive.
The Court also finds that a reasonable jury could find that Branford’s workplace was
objectively severe and abusive. Courts have concluded that even a single incident of a coworker
exposing himself to a female employee could create a fact dispute as to whether “the alleged
misconduct was severe enough to have created an abusive environment.” Rangel v. Am. Med.
Response W., 2013 WL 1785907 at *3 (E.D. Cal. May 7, 2013). Christensen strangled Branford,
Cardinal exposed himself to her, and Ulrich propositioned Branford. Additionally, although less
8
The Court considers the totality of the circumstances of which Plaintiff was aware in
considering whether a hostile work environment existed. “Harassment directed toward others of
which an employee is unaware can, naturally, have no bearing on whether she reasonably
considered her working environment abusive.” Brooks, 229 F.3d at 924. Additionally, the Court
does not consider Branford’s anecdotal evidence about consensual dating relationships between
WCSO employees, because a consensual dating relationship between a plaintiff’s coworkers
does not create a hostile work environment. See Poff v. Ok. Dep’t of Mental Health and
Substance Abuse Servs., 683 F. App’x 691, 702 (10th Cir. 2017).
PAGE 18 – OPINION AND ORDER
severe, Degman’s comments about Branford’s underwear and Siemiller’s comments to Branford
to get her to bend over are all offensive and objectionable. Viewing the evidence under a
standard of totality of the circumstances, the Court concludes that a reasonable jury could find
that a hostile work environment existed.
b. Liability for Hostile Work Environment
Having concluded that Branford has presented a triable issue on whether she was
subjected to a hostile work environment, the Court next must decide whether the County can be
held liable for the harassment that Branford experienced. Although courts look to all instances of
harassment, whether done by a coworker or by a supervisor, in determining whether a hostile
work environment exists, “[a]n employer’s liability for harassing conduct is evaluated differently
when the harasser is a supervisor as opposed to a coworker.” McGinest, 360 F.3d at 1119
(considering actions by both coworkers and supervisors in determining whether hostile work
environment existed, then analyzing liability separately for coworkers and supervisors).
Neither Cardinal, Christensen, nor Ulrich ever supervised Branford. Although they at
times held the title of sergeant, which is a higher rank than Branford’s title of deputy, it is not
sufficient that an employee merely held a higher rank in order to be a supervisor. “A supervisor
is a person who can take tangible employment actions against an employee, including effecting
‘significant change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant change in
benefits.” Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 689 (9th Cir. 2017) (quoting Vance
v. Ball State Univ., 133 S. Ct. 2434, 2443 (2013)).
A supervisor must have “immediate (or successively higher) authority over the
employee[,]” not just any employee. Faragher, 524 U.S. at 807 (emphasis added). Branford
worked as a deputy in the jail division. Although sergeants do have the ability to impose some
PAGE 19 – OPINION AND ORDER
form of discipline on deputies, they may only discipline deputies within their division. A patrol
sergeant may impose discipline on a deputy in the patrol division, but a patrol sergeant is
powerless to impose discipline on a deputy in the jail division. ECF 80 at 2. Ulrich, Cardinal, and
Christensen were all employed in the patrol division. ECF 80 at 2. Branford could be hired, fired,
or otherwise disciplined only by supervisors within the jail division or by the Sheriff or
Undersheriff. She could not be hired, fired, or disciplined by a patrol sergeant. Patrol sergeants
Cardinal, Christensen, and Ulrich, thus, had no supervisory authority over Branford. ECF 80
at 1-2. Therefore, WCSO is not vicariously liable for their conduct.
A jury could conclude, however, that Sergeant Siemiller, Sergeant Degman, or both were
Branford’s supervisor at various times because, as jail division sergeants, they were empowered
by the employer to take tangible employment actions against the Branford, including imposing a
disciplinary suspension for up to 24 hours and issuing letters of reprimand. ECF 80 at 2; see
Vance, 133 S. Ct. at 2442. Furthermore, jail sergeants have a substantial role in writing the
performance evaluations for jail deputies. ECF 82-7; see Kramer v. Wasatch Cty. Sheriff’s
Office, 743 F.3d 726, 739 (10th Cir. 2014) (finding sergeant’s responsibility for performance
evaluations weighed in favor of sergeant being supervisor within Title VII). In 2015, Sergeant
Siemiller contributed to Branford’s performance review with high praise, saying that she “has
done fantastic work.” ECF 87-2 at 9.
i. Liability for acts of coworkers
An employer may be liable for sexual harassment perpetrated by coworkers if
management knew or should have known about the harassment and failed to take adequate steps
to address it. McGinest, 360 F.3d at 1119. Past misconduct of which an employee is unaware, if
not adequately disciplined, may “be a relevant consideration in assessing the employer’s liability
once a hostile work environment has been shown to exist.” Brooks, 229 F.3d 924 n.5 (emphasis
PAGE 20 – OPINION AND ORDER
added). Thus, if the WCSO knew of past misconduct visited upon other female employees, yet
failed to take adequate action to prevent it from recurring, “the non-action by the employer can
fairly be characterized as acquiescence.” Id. at 924 n.4. The WCSO may, in those circumstances,
be negligent if it “knew, or should have known, about the harassment and failed to take prompt
and effective remedial action[,]” even if perpetrated by individuals not involved in this lawsuit
and against individuals other than Branford. Reynaga, 847 F.3d at 689. Thus, if the WCSO knew
that its employees, even employees other than those who harassed Branford, were harassing
other women in the WCSO workplace, and by failing to take appropriate action acquiesced to
that misconduct, the WCSO can be liable for creating a workplace that tolerates harassment,
which in turn led to Branford’s alleged harassment.
It is, however, insufficient that harassment merely occur in the workplace without
adequate discipline for an employer to be held liable. For liability to attach under Title VII, the
employer must have failed “to remedy or prevent a hostile or offensive work environment of
which management-level employees knew, or in the exercise of reasonable care should have
known.” Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991) (emphasis added). It is undisputed
that Branford never reported much of the harassment that she suffered to the management of the
WCSO, and it is largely unknown the precise degree to which others who suffered harassment
reported it to WCSO management, such that the employer would be on notice.
“A mere title of ‘manager’ or ‘supervisor’ does not by itself suffice to impute that
employee’s knowledge or actions to the employer.” Lamb v. Household Credit Servs., 956 F.
Supp. 1511, 1516 (N.D. Cal. 1997); Huston v. Procter & Gamble Paper Prods., Inc., 568
F.3d 100, 108 (3d Cir. 2009) (holding that “mere supervisory authority over the performance of
work assignments by other coworkers is not, by itself, sufficient to qualify an employee for
PAGE 21 – OPINION AND ORDER
management level status”); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715-16 (2d Cir.
1996) (refusing to impute knowledge to employer when notice was given to low-level supervisor
who worked outside plaintiff’s department).
The term “management-level employee” has not yet been clearly defined under Title VII,
but courts have imputed knowledge to employers in several contexts. See Swinton, 270 F.3d
at 804-05; Brooks, 229 F.3d at 925 n.6. First, courts consistently impute knowledge when the
person receiving notice of harassment is a “‘supervisor[] possessing substantial authority and
discretion to make decisions concerning the terms of the harasser’s or harassee’s employment’
such as “authority to counsel, investigate, suspend, or fire the accursed harasser, or to change the
conditions of the harassee’s employment.’” Swinton, 270 F.3d at 804-05 (quoting Lamb, 956 F.
Supp. at 1517). Because sergeants at the WCSO do not have the authority to hire, fire, or
promote employees, and their disciplinary authority is limited to imposing a 24-hour suspension,
sergeants are not management-level employees whose knowledge can be imputed to WCSO.
Second, courts have attributed a non-manager’s knowledge to an employer “when an
employee complains of co-worker harassment to a non-management employee who has general
responsibility for passing employment-related complaints up the corporate hierarchy.”
Lamb, 956 F. Supp. at 1517. A complaint to an employee at human resources, for example,
would likely be sufficient to attribute knowledge to the employer.
A third route for imputing knowledge to an employer may exist when the harassment is
so blatant and pervasive that the employer cannot reasonably claim ignorance. “The sheer
pervasiveness of the harassment might support an inference that the employer must have known
of it.” Zimmerman v. Cook Cty. Sheriff’s Dep’t, 96 F.3d 1017, 1018-19 (7th Cir. 1996); Meritor
Sav. Bank v. Vinson, 477 U.S. 57, 72 (1986) (noting that the record was unclear whether
PAGE 22 – OPINION AND ORDER
unwelcome sexual advances “were so pervasive and so long continuing that the employer must
have become conscious of them”) (quotation marks and alterations omitted). Thus, although
Branford did not report most of the instances that she experienced of harassment, if harassment
of women generally in the WCSO was so pervasive that management-level employees must have
known about it and took no steps to remedy it, the WCSO could be liable for creating (or
permitting) a work environment that tolerated harassment.
Before addressing the evidence that could support an inference that the WCSO knew of
pervasive harassment, the Court notes that much of the evidence contained in the record is based
on or contains hearsay. In evaluating the nonmoving party’s facts offered at summary judgment,
the Court does “not focus on the admissibility of the evidence’s form. [The Court] instead
focus[es] on the admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
Cir. 2003); see also Celotex, 477 U.S. at 324 (“We do not mean that the nonmoving party must
produce evidence in a form that would be admissible at trial in order to avoid summary
judgment.”). At summary judgment, the Court may consider “evidence submitted in an
inadmissible form, so long as the underlying evidence could be provided in an admissible form
at trial, such as by live testimony.” JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d
1098, 1110 (9th Cir. 2016) (emphasis added). In order for Branford to prevail at trial, many
witnesses likely would need to testify about events that they personally experienced—not events
that they learned about second hand. Because all the second hand and third hand accounts of
inappropriate workplace conduct contained in the record could be presented in an admissible
form at trial if the individuals directly involved were to testify, the Court will consider evidence
submitted at this stage, even though it was presented to the Court largely as otherwise
inadmissible hearsay.
PAGE 23 – OPINION AND ORDER
The record contains several second hand reports of incidents of sexual harassment in the
WCSO that management may or may not have known about. The Court cannot ascertain, from
the record evidence alone, whether WCSO management in fact knew about any of the incidents
described or mentioned in passing by various individuals in interviews with PPB or depositions
taken in this lawsuit. These incidents include an alleged assault by Sergeant Cardinal on Kelly
Mardsen in which Cardinal attempted to grope Mardsen’s breasts. ECF 95-3 at 13. Sergeant
Markos described Marsden telling him about this incident and also described urging Mardsen to
report the incident, stating that if she didn’t report it, he would because “that stuff cannot
continue to happen with Dan, I mean there’s just too much going on.” ECF 95-1 at 33. This
implies that Sergeant Markos may have known of other instances of Sergeant Cardinal behaving
inappropriately.
Sergeant Markos also describes an incident in which Dave Bergquist, another WCSO
employee, attempted to grab the breasts of a woman named Debbie. ECF 95-1 at 28. Sergeant
Markos stated that Bergquist’s attempt to grope Debbie wasn’t “the first incident where
somebody has claimed that Dave [Bergquist] has touched them inappropriately or attempted to
grab their breasts. I know Debbie has complained about it, I know other females have.” Id.
Markos learned this information second hand, not from Debbie herself. Id. Markos also
mentioned that Sergeant Karlyn Degman may have been groped by Bergquist, but Markos
recognized that his information “was hearsay, it’s another rumor.” ECF 95-1 at 28. Dave
Bergquist also attempted to force a civilian employee, Missy Moore, to perform oral sex on him
at a holiday party and he groped her breast. ECF 95-1 at 14-18, 35. Evidently at this same
holiday party, Missy Moore said that somebody named David Lyle had pulled a woman’s breast
out of the top of the woman’s dress, although Moore did not witness it. ECF 95-1 at 13.
PAGE 24 – OPINION AND ORDER
Sergeant Wortham also described inappropriate behavior and comments made by
Sergeant Degman. In her deposition, she testified that, on numerous occasions in 2011 Degman
had called her a bitch and told her that she was part of the “lesbian club,” and he refused to stop
even after she told him it was offensive. ECF 96-3 at 9. Wortham testified that she reported
Degman’s comments to the lieutenant and commander at the time, but they took no action. Id. at
10. Wortham also described overhearing a deputy say that an inmate had said that Branford had
“bulletproof boobs.” ECF 96-3 at 13. Sergeant Wortham mentioned that she had filed numerous
complaints to the sheriff and undersheriff at the WCSO about the “old boys’ network” that exists
in the WCSO.9
Additionally, there is evidence in the record that numerous women reported that Deputy
Nelson had made offensive comments to them and they raised their concerns to WCSO
management. WCSO investigated and sustained many of the complaints against Nelson,
including that he used to tell women to make him a sandwich. Branford alleged that Nelson
frequently told her to “shut [her] man pleaser.” Branford also describes Deputy Nelson bragging
that as a patrol deputy he would use his official authority to pull over attractive women. Branford
states that when another of Deputy Nelson’s girlfriends asked to stop seeing him, his response
was to smell her hair and tell her that her hair gave him an erection. ECF 94 at 10. Deputy
Nelson was investigated and disciplined, but Branford alleges that this discipline was
insufficient. Branford also claims that Corporal Kevin Kearns was accused of inappropriately
touching another male corporal. ECF 82-10 at 5. Branford reports that an unknown male deputy
at a defensive tactics training once asked Branford how large her breasts were. ECF 82-10 at 5.
9
Sergeant Wortham also describes receiving a package in the mail full of gummy candy
shaped like male genitalia, accompanied by a note saying, “eat a bag of dicks.” This incident,
however, occurred in 2017 and therefore could not have contributed to the harassment that
Branford suffered between 2011-2016.
PAGE 25 – OPINION AND ORDER
It is unclear from the record just how many of these incidents occurred before Branford’s
harassment and how many of them were reported to or known by management. It is possible,
however, that these incidents, cumulatively, created an environment of harassment so pervasive
that management must have known about it. Branford does not cite to any of these specific
incidents in the argument section of her brief to show that the WCSO should be held liable for
creating or permitting a hostile work environment based on its failure to curb previous incidents
of workplace sexual harassment. It is unclear which, if any, of the events described above
Branford believes provides sufficient evidence that the WCSO knew or should have known
about the pervasive culture of sexual harassment during the relevant time period. The
voluminous record in this case is disorganized and without any context in Branford’s briefs as to
how the numerous incidents mentioned in various record excerpts support her claims. The Court
is uncertain as to which incidents happened when, where, to whom, and who knew about them.
Notwithstanding this uncertainty, the Court concludes that there are genuine questions of fact
remaining in this case about what the WCSO knew and when it knew it and whether it took
appropriate actions to curb a widespread workplace culture of sexual harassment, if one existed.
The Washington Defendants’ motion for summary judgment on Branford’s federal and state
claims for hostile work environment is, therefore, denied. The Court, however, grants leave to
the Washington Defendants to renew this motion at the final pretrial conference. At that time,
with Branford’s witness list, witness summaries, and intended trial exhibits available, the Court
can better determine whether Branford will be able to present admissible evidence at trial
sufficient to show that the Washington Defendants knew or should have known of any
widespread workplace culture of sexual harassment at the WCSO.
PAGE 26 – OPINION AND ORDER
ii. Vicarious liability for acts by a supervisor
Generally, an employer is vicariously liable for a hostile work environment created by a
supervisor. Nichols, 256 F.3d at 877. If the employee has not suffered a tangible employment
action as a result of the harassment, however, the employer may assert an affirmative defense
known as the Faragher/Ellerth affirmative defense. This affirmative defense comprises two
elements: “(a) that the employer exercised reasonable care to prevent and correct promptly any
sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take
advantage of any preventive or corrective opportunities provided by the employer or to avoid
harm otherwise.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); see Nichols, 256
F.3d at 877. “Whether the employer has a stated antiharassment policy is relevant to the first
element of the defense.” Nichols, 256 F.3d at 877. If a complaint procedure exists and the
employee fails to take advantage of it, that “will normally suffice to satisfy the employer’s
burden under the second element of the defense.” Id. (quoting Ellerth, 524 U.S. at 765).
This affirmative defense is only available to employers if the employee has not suffered a
tangible employment action by the harassing supervisor. Holly D. v. Cal. Inst. of Tech., 339
F.3d 1159, 1167 (9th Cir. 2003). “A tangible employment action constitutes a significant change
in employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524
U.S. at 761 (emphasis added). “A tangible employment action in most cases inflicts direct
economic harm.” Id. at 762. “[T]he harassing supervisor must be the one who orders the tangible
employment action or, at the very least, must be otherwise substantially responsible for the
action.” Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 44 (1st Cir. 2003).
Branford does not identify any tangible significant adverse employment action that she
has suffered at the hands of an allegedly harassing supervisor. Branford describes several actions
PAGE 27 – OPINION AND ORDER
that she believes are tangible employment actions, including losing her scheduled overtime
shifts, being denied her initial request for shift reassignment, and being ostracized by coworkers.
None of these actions, however, was carried out by an allegedly harassing supervisor, either
Siemiller or Degman or anyone else. Id. Thus, none of these actions rise to the level of a tangible
employment action that would preclude the Faragher/Ellerth defense. Accordingly, the
Washington Defendants have met the prerequisite for the application of this affirmative defense.
To satisfy the first prong of the Faragher/Ellerth defense, the WCSO must demonstrate
that it took reasonable steps to prevent and correct harassing behavior. During the relevant time
period, the WCSO maintained (and continues to maintain) a workplace sexual harassment policy,
known as the “harassment-free workplace policy.” ECF 82-6. This policy defines “sexual
harassment,” sets forth a reporting procedure, states that employees who violate the policy will
be disciplined and assures employees that no reprisals would be made against them for making a
complaint of sexual harassment. ECF 82-6 at 2.
In Holly D. v. Cal. Inst. of Tech, 339 F.3d 1158, 1177 (9th Cir. 2003), the Ninth Circuit
found that the university’s “written policy which defined prohibited behavior, identified contact
personnel, and established procedures to investigate and resolve any claims” on its face was
reasonable. See also Nichols, 256 F.3d at 877 (finding similar policy sufficient to support
affirmative defense); see also Montero v. Agco Corp., 192 F.3d 856, 862 (9th Cir. 1999) (same).
Branford knew about the harassment-free workplace policy. ECF 82-1 at 58; see Holly D., 339
F.3d at 1177-78 (plaintiff testified that she knew about the policy). The Court finds that WCSO’s
policy was legally sufficient and that the Washington Defendants have met the first prong of the
Faragath/Ellerth affirmative defense with regard to the actions of supervisors Siemiller and
Degman.
PAGE 28 – OPINION AND ORDER
Next, the Court must find that Branford unreasonably failed to use WCSO’s harassmentfree workplace policy to report sexual harassment. WCSO’s workplace harassment policy
identifies individuals whom Branford could have contacted about the harassment she was
experiencing, including her immediate supervisor, or, “if the offending party is in the
complainant’s chain-of command or if the staff member feels uncomfortable in reporting the
conduct in question to an immediate supervisor, the staff member should report the conduct
directly to the Sheriff or to the County’s Human Resources office.” ECF 82-6. Branford did not
report Sergeant Degman’s comments until 2016, other than mentioning them to Wortham during
a smoke break, and she never made any formal complaint about Sergeant Siemiller’s
inappropriate comments.
Further, every year on each employee’s performance evaluation report, the employee is
asked to affirm that she either has or has not “been the subject or a witness to harassment by
coworkers” ECF 82-7 at 3. In 2014, Branford affirmed that she had not been the subject or a
witness to any such harassment. ECF 82-7 at 3. In 2015, Branford did not check either box on
her performance evaluation. Lindsey Dober, a senior administrative specialist, followed up with
Branford by email to ask her whether Branford’s omission was intentional. ECF 82-7 at 7.
Branford responded, apologized, and stated that she did not intend to mark the box for
harassment on the form. ECF 82-7 at 7. Thus, Branford was presented with opportunities to
report sexual harassment but made a conscious decision not to do so. See Holly D., 339 F.3d
at 1178 (finding that the plaintiff unreasonably failed to seek help when university’s written
policy materials identified individuals “equipped to offer assistance in cases of sexual
harassment, but Holly D. made no attempt to seek relief from any person able to put a stop to the
harassment”).
PAGE 29 – OPINION AND ORDER
Branford argues in her response to the Washington Defendants’ motion for summary
judgment that she had a reasonable fear of retaliation based on her observation of the experiences
of other employees who reported harassment. Branford recognizes that a “generalized fear of
retaliation cannot justify a failure to report sexual harassment,” but she argues that her fear was
not generalized because “she had observed other women who did in fact report harassment who
were mistreated and retaliated against as a result.” ECF 93 at 35 (quoting Beyer v. Baker Sch.
Dist. 5J, 2005 WL 351936, at 8 (D. Or. Feb. 14, 2005)). Branford, however, fails to identify any
evidence or any specific example of retaliation against another to render Branford’s belief
reasonable. See Mitchel v. Gen. Elec. Co., 689 F.2d 877, 879 (9th Cir. 1982) (noting that
“unsubstantiated and conclusory allegations” are insufficient to survive summary judgment).
Although Branford fails to name any of these women whom she claims suffered
retaliation after reporting sexual harassment (or otherwise to provide any facts in support of this
claim), Branford generally refers to “other employees” and “other women” who were retaliated
against after reporting harassment. ECF 93 at 35-36. After thoroughly examining the record, the
Court has found no evidence of any other employees being retaliated against after reporting
sexual harassment. Despite her attempts to characterize her fears as more than “generalized,” that
is the level of detail that Branford has provided to the Court. Notwithstanding Branford’s alleged
fears of retaliation, in 2015 and 2016 she overcame those fears and reported Ulrich and Degman
to Sheriff Garrett. Branford has not explained why she feared retaliation regarding some of her
complaints of sexual harassment, but not others.
The WCSO did, however, eventually learn of some of the instances of harassment that
happened to Branford. In 2015, through Branford’s tort claims notice, the WCSO learned of
Sergeant Siemiller’s inappropriate comments about Branford’s “untied shoes.” Upon learning of
PAGE 30 – OPINION AND ORDER
the comments, WCSO opened an investigation. During that investigation, Siemiller was
interviewed and he admitted to making these comments. He was demoted and ordered to attend
counseling. Thus, when the WCSO eventually learned about Siemiller’s comments, WCSO’s
“response was swift and certain.” Montero v. Agco Corp., 192 F. 3d 856, 863 (9th Cir. 1999).
Similarly, in 2016, Branford reported Degman’s inappropriate comments to the Sheriff, although
it is unclear specifically which of Degman’s comments Branford reported. The WCSO opened an
investigation, and Branford met with Shawn Fisher to discuss her concerns.
Branford was aware of the WCSO’s workplace harassment policy, yet she failed to file
complaints about harassment for years. “[W]hile proof that an employee failed to fulfill the . . .
obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to
use any complaint procedure provided by the employer, a demonstration of such failure will
normally suffice to satisfy the employer’s burden under the second element of the defense.”
Faragher, 524 U.S. at 778. Therefore, the WCSO successfully established the second prong of
the Faragher/Ellerth defense by showing that Branford unreasonably failed to take advantage of
the WCSO’s harassment-free workplace policy when she knew of its existence. Branford has
directed the Court to no evidence of retaliation against her or others that would make her failure
to report reasonable under the circumstances. The WCSO cannot be liable for acts of sexual
harassment by Sergeants Siemiller and Degman, who were Branford’s supervisors.
Thus, the Court grants the Washington Defendants summary judgment against that
portion of Branford’s claim alleging a hostile work environment created by a supervisor’s
behavior. That does not mean, however, that the harassment by Sergeants Siemiller and Degman
are not relevant at trial for other purposes, including to show that a hostile work environment
existed or that there was an atmosphere in which coworkers could conclude that the WCSO did
PAGE 31 – OPINION AND ORDER
not vigorously enforce its anti-harassment policy during the relevant time period. The parties
may further address this issue in the context of motions in limine, which will be considered at the
final pretrial conference.
2. Retaliation
Branford also alleges retaliation claims under Title VII as well as Or. Rev. Stat.
§§ 659A.030(1)(f), 659A.19910, 659A.203, 659A.230, and 659A.290. To succeed on a claim for
retaliation, “a plaintiff must demonstrate that: ‘(1) she was engaging in protected activity, (2) the
employer subjected her to an adverse employment decision, and (3) there was a causal link
between the protected activity and the employer's action.’” Pool v. VanRheen, 297 F.3d 899, 910
(9th Cir. 2002) (quoting Bergene v. Salt River Project Agric. Improvement and Power Dist., 272
F.3d 1136, 1141 (9th Cir. 2001)).
Branford argues that, as a result of reporting Christensen’s assault and other instances of
sexual harassment, she suffered a number of adverse employment actions including: (1) being
placed on paid administrative leave; (2) the overtime shifts she had signed up for were
reassigned to other employees; (3) she was shunned by her coworkers; (4) her request for
reassignment to MOU, Rover 1, and intake was initially denied; (5) rumors were started about
Branford having sex with inmates; (6) she was sexually harassed by Ulrich; and (7) when she
learned that the WCSO had obtained a copy of her cell phone data and she became upset, she
was told to go home early. Branford does not address the issue of causation with respect to any
of these alleged adverse employment actions. The Court concludes that Branford has failed to
raise a genuine dispute of material fact as to any of her retaliation claims.
The Washington Defendants also is entitled to summary judgment against Branford’s
claim under Or. Rev. Stat. 659A.199 because this statute does not apply to public employers; it
only applies to private employers. See Blanks v. Univ. of Or., 2018 WL 4924546 at *7 (D. Or.
Oct. 10, 2018); Lindsey v. Clatskanie People’s Util. Dist., 140 F. Supp. 3d 1077 (D. Or. 2015).
10
PAGE 32 – OPINION AND ORDER
When the WCSO placed Branford on paid administrative leave immediately following
her revelations to the PPB about Christensen’s assault, this did not constitute an adverse
employment action. The PPB initially suggested that Branford take paid leave because she was
very distressed by the assault and the forthcoming restraining order hearing. Portland detectives
called WCSO Undersheriff Mori to arrange for Branford to receive paid time off effective
April 27, 2015. Branford called Mori and requested that she be marked as sick on the schedule.
According to Branford, Mori promised her that she would receive paid time off work. ECF 94
at 23. Later, Branford was upset to learn that her paid leave would be ending on May 7, 2015.
See ECF 82-1 at 29 (“I did not want to return.”). Thus, even though Branford was placed on
administrative leave as a direct result of revealing to the PPB Christensen’s assault, Branford did
not view this as an adverse employment action at the time. In fact, Branford wanted to remain on
administrative leave beyond May 7, 2015.
Further, when Branford noticed that her overtime shifts had been reassigned, requiring
her to sign up for other shifts if she wanted overtime, this did not constitute an instance of
unlawful retaliation. Branford does not allege any facts to support a causal connection between
her protected activity (reporting sexual harassment) and her overtime shifts being reassigned. A
plaintiff who claims she has been retaliated against “must show that the protect[ed] activity
constituted the ‘but-for cause’ of the employer’s adverse employment action.” Lindsey v.
Clatskanie People’s Util. Dist., 140 F. Supp. 3d 1077, 1088 (D. Or. 2015). Oregon courts
similarly apply a “but for” standard. Id. (citing Hardie v. Legacy Health Sys., 167 Or. App. 425,
436 (2000)). Branford asserts that she does not know who removed her name from the overtime
sign-up sheets. Sergeant Mackley was in charge of overtime scheduling, according to Branford,
and she does not allege that Sergeant Mackley had any knowledge of her protected activity or
PAGE 33 – OPINION AND ORDER
that any decision he made to reschedule her shifts was done with a retaliatory motive. Thus,
Branford’s claim that she was retaliated against for reporting workplace harassment by losing her
scheduled overtime fails to make out a prima facie case of causation.
Also, being shunned by coworkers does not constitute retaliation. “Because an employer
cannot force employees to socialize with one another, ostracism suffered at the hands of
coworkers cannot constitute an adverse employment action.” Brooks v. City of San Mateo, 229
F.3d 917, 929 (9th Cir. 2000). Brooks notes that forcing employees to socialize might well run
afoul of the First Amendment. Id. Similarly, a government employer has limited tools at its
disposal to prevent employees from gossiping in the workplace, although the WCSO did
undertake efforts to remind employees to refrain from gossip. See ECF 82-2 at 16. Branford
alleges that the WCSO’s efforts to curb gossip were ineffective, but this does not make
workplace gossip by coworkers a retaliatory adverse employment action.
Branford also makes no allegations, and points to no facts, to support a claim that Sheriff
Garrett initially denied her request to move to busier or more stressful shifts in retaliation for her
protected activity. Although Branford lists this initial denial as an adverse employment action,
she fails to explain any retaliatory motive or perceived causal connection between this initial
denial and her protected activity. To the contrary, Sheriff Garrett stated that he was concerned
that Branford working in a high-stress environment might be overwhelming for her. See
ECF 82-2 at 19. Branford describes her requested posts as “the busiest, hardest in the jail.” ECF
82-10 at 19. Branford has identified no evidence that Sheriff Garrett’s reason that he initially
denied her request—because he was concerned for Branford’s mental and physical health—was
a pretext for retaliation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973).
Branford stated that she had no information to suggest that the reason that Sheriff Garrett
PAGE 34 – OPINION AND ORDER
initially denied her request was because she had complained about workplace harassment.
ECF 102-3 at 10. Sheriff Garrett later granted Branford’s reassignment request. Eventually,
Branford requested to be transferred back to her regular shifts. None of this constitutes a
retaliatory adverse employment action.
In addition, the rumors that Branford was sleeping with inmates do not amount to an
adverse employment action. See EEOC v. Parra, 2008 WL 2185124 at *8 n.6 (D. Or. May 22,
2008) (noting that starting rumors is not an adverse employment action); see also Brooks, 229
F.3d at 929. Further, Branford has not argued that the rumors were in retaliation for reporting
sexual harassment and not instead based on the fact that the WCSO was actually investigating
instances of blonde jail employees having sex with inmates. Branford was blonde and worked in
the jail. See ECF 96-2 at 27-28. She has failed to allege any causal link between her protected
activity and these rumors.
Similarly, Branford does not point to any facts to suggest that Ulrich’s motivations for
sexually harassing her were retaliatory. See Matsushita Elec. Indus., Co., 475 U.S. at 587 (“the
nonmoving party must come forward with ‘specific facts showing that there is a genuine issue
for trial”) (emphasis in original) (quoting Fed. R. Civ. P. 56(d)). Branford has done no more than
make a conclusory assertion that Ulrich’s harassment was “retaliatory” without identifying any
facts that support that conclusion.
Finally, when Sergeant Arrowood told Branford to go home after she was upset that
WCSO internal affairs was looking at the contents of her cell phone, this did not constitute an
adverse employment activity in retaliation for her protected activity. Branford does not allege
that the reason Lieutenant Black told her to go home early, because she was upset about her cell
phone contents being shared, was not the true reason for his advice and direction, and was
PAGE 35 – OPINION AND ORDER
instead a pretext for retaliation. See McDonnell Douglas, 411 U.S. at 804. Branford admits that
she was very upset about the contents of her phone being shared, and she does not suggest that
Sergeant Arrowood told her to go home in retaliation for her earlier complaints about sexual
harassment, and not because she was legitimately upset. Similarly, when Lieutenant Black asked
Branford if she was interested in taking a job outside of the sheriff’s office, this did not constitute
an adverse employment action.
In summary, Branford has failed to raise a genuine dispute of material fact on any of her
retaliation allegations under federal or state law. The Court grants the Washington Defendants’
motion for summary judgment on Branford’s claims of retaliation.11
3. Section 1983
The Court begins by noting that Branford is correct that the Washington Defendants have
not moved for summary judgment against Branford’s claim against Christensen under 42 U.S.C.
§ 1983. Christensen is not part of the Washington Defendants group in this lawsuit, and he is not
represented by counsel for the Washington Defendants in this matter. Also, Christensen has not
moved for summary judgment against any of Branford’s claims.12 Additionally, Branford has
agreed to dismiss her 42 U.S.C. § 1983 claim against Washington County. Thus, regarding the
11
Branford also claims that the County discriminated and retaliated against her based on
her status as a victim of domestic violence in violation of Or. Rev. Stat. § 659A.290. Branford
fails to allege any facts that suggest that she was treated differently or otherwise discriminated
against based on her status as a victim of domestic violence. She argues that she was treated
differently than one deputy who took administrative leave after a use of force incident in which
he had shot an unarmed man, but Branford does not explain how the deputy who engaged in use
of force is a relevant comparator. ECF 93 at 19-20. Branford also fails to explain which adverse
employment actions she believes the WCSO took because of her status as a domestic violence
victim. Branford also fails to allege that there was a causal link between any action taken by the
WCSO and her status as a victim of domestic violence. Thus, the Court grants summary
judgment to the Washington Defendants on this claim by Branford.
12
Branford alleges that Christensen violated her rights under the Fifth and Fourteenth
amendments, made applicable to local officers and entities by the Fourteenth Amendment.
PAGE 36 – OPINION AND ORDER
Washington Defendants, only Branford’s individual claims under § 1983 against Sheriff Garrett
and Lieutenant Black remain.
“The doctrine of qualified immunity protects government officials from liability for civil
damages.” Wood v. Moss, 134 S. Ct. 2056, 2066-67 (2014); Krainski v. Nevada ex. Rel. Bd. of
Regents, 616 F.3d 963, 968 (9th Cir. 2010). “Qualified immunity balances two important
interests—the need to hold public officials accountable when they exercise power irresponsibly
and the need to shield officials from harassment, distraction, and liability when they perform
their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “Whether qualified
immunity can be invoked turns on the ‘objective legal reasonableness’ of the official’s acts. And
reasonableness of official action, in turn, must be ‘assessed in light of the legal rules that were
clearly established at the time [the action] was taken.’” Ziglar v. Abbasi, 137 S.Ct. 1843, 1866
(2017) (citation omitted) (alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
819 (1982) and Anderson v. Creighton, 483 U.S. 635, 638 (1987)). “The privilege is an immunity
from suit rather than a mere defense to liability; . . . it is effectively lost if a case is erroneously
permitted to go to trial.” Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (quotation marks omitted)
(emphasis in original). For this reason, the Court has “stressed the importance of resolving
immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224,
227 (1991) (per curiam). Qualified immunity, however, is only an immunity from suit for
damages, it is not an immunity from suit for declaratory or injunctive relief. See L.A. Police
Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 1993).
In Saucier, the Supreme Court outlined a two-step process for determining the
applicability of the qualified immunity doctrine. 533 U.S. at 200. The first step is to determine
“whether a constitutional right would have been violated on the facts alleged.” Id. The second
PAGE 37 – OPINION AND ORDER
step is to determine “whether the right was clearly established.” Id. The constitutional issue,
however, need not be addressed first in every case. Pearson, 555 U.S. at 227. Regardless of
whether the constitutional violation occurred, the officer should prevail if the right asserted by
the plaintiff was not clearly established or the officer could have reasonably believed that his
particular conduct was lawful. Romero v. Kitsap Cty., 931 F.2d 624, 627 (9th Cir. 1991).
To determine whether a government official’s conduct violates clearly established law, “a
court must ask whether it would have been clear to a reasonable officer that the alleged conduct
was unlawful in the situation he confronted.” Ziglar, 137 S.Ct. at 1867. To be clearly established,
“[i]t is not necessary . . . that the very action in question has previously been held unlawful. That
is, an officer might lose qualified immunity even if there is no reported case directly on point.
But in the light of pre-existing law, the unlawfulness of the officer’s conduct must be apparent.
Id. at 1866-67. (citations and quotation marks omitted). “The ‘clearly established’ requirement
‘operates to ensure that before they are subject to suit, [government officials] are on notice their
conduct is unlawful.’” Eng v. Cooley, 552 F.3d 1062, 1075 (9th Cir. 2009) (quoting Hope v.
Pelzer, 536 U.S. 730, 739 (2002)) (alteration in original). Thus, the key inquiry in determining
whether an officer has qualified immunity is whether the officer had “fair warning” that his
conduct was unconstitutional. Hope, 536 U.S. at 741; see also Saucier, 533 U.S. at 202 (noting
that the law need not be a “precise formulation of the standard” as long as “various courts have
agreed that certain conduct is a constitutional violation under facts not distinguishable in a fair
way from the facts presented in the case at hand”); Ellins v. City of Sierra Madre, 710 F.3d 1049,
1064 (9th Cir. 2013) (“Rather, the relevant question is whether ‘the state of the law at the time
gives officials fair warning that their conduct is unconstitutional.’” (quoting Bull v. City & Cty.
PAGE 38 – OPINION AND ORDER
of San Francisco, 595 F.3d 964, 1003 (9th Cir. 2010) (en banc) (“[T]he specific facts of previous
cases need not be materially or fundamentally similar to the situation in question.”))).
The plaintiff bears the burden of making a showing that the right was clearly established
at the time of the alleged violation. Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002). When
considering whether qualified immunity applies, however, the court must resolve all factual
disputes in favor of the party asserting the injury. Ellins, 710 F.3d at 1064.
Branford argues that Sheriff Garrett and Lieutenant Black violated her substantive and
procedural due process rights, depriving her of her liberty and property interests, when they
obtained a copy of Branford’s cell phone contents and provided a copy to Washington County
counsel Elmer Dickens, who then provided it to a private investigator working for the County.
Branford’s cell phone contents allegedly included intimate photographs of Branford that are not
related to any investigation. Garrett and Black argue that they are entitled as a matter of law to
qualified immunity both because their actions were constitutionally permissible and because no
reasonable law enforcement officer would have been on notice that receiving the contents of
Branford’s cell phone from other law enforcement officers in the context of official
investigations, after Branford voluntarily provided her phone to the PPB as part of its
investigation, was unconstitutional. Branford responds that any reasonable law enforcement
officer should have known that obtaining and distributing the private contents of a cell phone
violated Branford’s clearly established constitutional rights.
The United States Supreme Court recognizes a constitutional privacy interest in
“avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 599 (1977); Nixon v.
Adm’r of Gen. Servs., 433 U.S. 425, 457 (1977). This type of privacy interest, often called,
“informational privacy” is not unlimited. Although a government’s accumulation of personal
PAGE 39 – OPINION AND ORDER
information for public purposes may pose a threat to individual privacy, statutory or regulatory
duties to avoid unwarranted disclosures of personal information are often sufficient to alleviate
these privacy concerns. Whalen, 429 U.S. at 605.
In 2011, the Supreme Court assumed, without deciding, that the Constitution protects a
right to informational privacy. The Court recognized that many courts had interpreted Whalen
and Nixon to hold that the disclosure of at least some kinds of personal information should be
subject to a test that balances the government’s interests against the individual’s interests in
avoiding disclosure. Nat’l Aeronautics and Space Amin. v. Nelson, 562 U.S. 134, 147 n.9 (2011).
The Ninth Circuit has held that the right to informational privacy “applies both when an
individual chooses not to disclose highly sensitive information to the government and when an
individual seeks assurance that such information will not be made public.” Planned Parenthood
v. Lawall, 307 F.3d 783, 789-90 (9th Cir. 2002). As all the parties recognize, this right is not
absolute, “it is a conditional right which may be infringed upon a showing of proper
governmental interest.” Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 551 (9th Cir. 2004)
(quoting Lawall, 307 F.3d at 790)). In determining “whether the governmental interest in
obtaining information outweighs the individual’s privacy interest,” Seaton v. Mayberg, 610 F.3d
530, 530 (9th Cir. 2010), courts may:
balance the following factors to determine whether the
governmental interest in obtaining information outweighs the
individual’s privacy interest: (1) the type of information requested,
(2) the potential for harm in any subsequent non-consensual
disclosure, (3) the adequacy of safeguards to prevent unauthorized
disclosure, (4) the degree of need for access, and (5) whether there
is an express statutory mandate, articulated public policy, or other
recognizable public interest militating toward access.
Eden, 379 F.3d at 551. The cell phone contained text messages that were relevant to WCSO’s
internal affairs investigation, and Branford does not allege that any unintentional disclosure of
PAGE 40 – OPINION AND ORDER
the phone contents occurred. Based on the fact that the right to informational privacy is only
conditional and may properly be infringed upon consideration of the government’s interests
under the totality of the circumstances, the Court concludes that Garrett and Black reasonably
could have believed that their conduct in receiving the contents of Branford’s cell phone and
then providing a copy of that data to Washington County counsel, who then provided the
contents to a private investigator working for the County for redaction purposes, was lawful.
Branford relies on York v. Story, 324 F.2d 450, 455 (9th Cir. 1963), to support her
argument that any reasonable law enforcement officer would have known that Sherriff Garrett’s
and Lieutenant Black’s conduct in obtaining and then distributing Branford’s private information
to County counsel would violate Branford’s constitutional right to informational privacy. In
York, the Ninth Circuit held that a sexual assault victim’s right to bodily privacy was violated by
a police officer who directed the victim to disrobe, photographed the victim in sexually
suggestive poses that were unnecessary and unrelated to the investigation, and later distributed
the photographs among the police department for no apparent and legitimate law enforcement
purpose. Id. at 455. York, however, presents a much more egregious factual scenario than is
found in the pending case. The photographs were already on Branford’s cell phone when she
gave consent to the PPB to make a copy of the phone’s contents, and Branford does not dispute
that the PPB shared her cell phone data with the WCSO for a legitimate law enforcement
purpose.
Further, the Ninth Circuit has cautioned against construing the right to informational
privacy too broadly. In Davis v. Bucher, 853 F.2d 718, 719-20 (9th Cir. 1988), the plaintiffs were
an inmate and his wife. They sued a state prison guard under § 1983 after the guard viewed and
shared nude photos of Mrs. Davis. During the course of transferring Mr. Davis from one
PAGE 41 – OPINION AND ORDER
correctional facility to another, Bucher inventoried Mr. Davis’s possessions. Among those
possessions, Bucher found an envelope containing four nude photos of Mrs. Davis. Bucher
viewed the photographs himself and then showed them to two other inmates. The Ninth Circuit
affirmed the district court’s conclusion that no right of privacy existed under the circumstances.
Id. The Ninth Circuit held:
The Davises seek a broad construction of that right. Their theory is
that the Fourteenth Amendment houses an interest in avoiding the
unconsented and unwarranted disclosure of intimate photographs
by the state, and that this interest was violated by Bucher's conduct
in exhibiting the photos to others . . . . This theory cannot be
sustained.
Davis, 853 F.2d at 719–20.
In light of York and Davis, the Court cannot conclude in this case that reasonable law
enforcement officers in the position of Sheriff Garrett’s and Lieutenant Black should have
known that obtaining and sharing the data contained in Branford’s cell phone violated a clearly
established constitutional right of privacy. See Baker v. Racansky, 887 F.dd 183, 187 (9th
Cir. 1989) (holding that “if the existence of a right or the degree of protection it warrants in a
particular context is subject to a balancing test, the right can rarely be considered clearly
established, at least in the absence of closely corresponding factual and legal precedent”)
(quotation marks omitted); Moran v. Washington, 147 F.3d 839, 847 (9th Cir. 1998) (noting that
the Ninth Circuit has recognized a “self-evident tenet of qualified immunity jurisprudence,”
namely, “the difficulty of divining clearly established legal principles from multifactor balancing
tests”). As a result, the Court concludes that Sheriff Garrett and Lieutenant Black are entitled to
qualified immunity from suit by Branford under 42 U.S.C. § 1983.
Branford also alleges that Sheriff Garrett and Lieutenant Black violated her procedural
due process rights because they deprived her of the property interest she has in her photoraphs.
PAGE 42 – OPINION AND ORDER
Branford does not cite any cases in support of the proposition that she has a constitutionallyprotected property interest in the photographs contained on her cell phone. Branford, at all times,
retained her own personal copy of the entirety of her cell phone data. Thus, she was never
actually deprived of the photographs and the other data and material in question. Branford also
does not argue that the PPB’s seizure of her cell phone data, and its transfer to the WCSO,
violated her Fourth Amendment rights. The Ninth Circuit has held that, “when seizing property
for criminal investigatory purposes, compliance with the Fourth Amendment satisfies predeprivation procedural due process as well.” Sanders v. City of San Diego, 93 F.3d 1423, 1429
(9th Cir. 1996). Thus, the Court cannot conclude in this case that a reasonable law enforcement
officer in the position of Sheriff Garrett and Lieutenant Black would have known that receiving
and sharing the data contained within Branford’s cell phone violated a clearly established right to
procedural due process.
Further, the Washington Defendants previously sought from this Court an order allowing
them to return to Branford all of Branford’s cell phone data in the possession, custody, or control
of the WCSO, except for specific portions that the Washington Defendants stated they are
required to retain under Oregon public records law. ECF 49. The Court granted that motion, over
Branford’s objection, and the cell phone contents are no longer in the possession of the
Washington Defendants. ECF 56. The Court grants the Washington Defendants’ motion for
summary judgment against Branford’s § 1983 claims against the Washington Defendants.
4. Negligent Supervision and Hiring
Branford also seeks to hold Washington County liable for negligence in hiring and failing
adequately to supervise Christensen. Branford correctly identifies that liability attaches when an
employer “negligently plac[es] an employee with known dangerous propensities, or dangerous
propensities which could have been discovered by a reasonable investigation, in a position where
PAGE 43 – OPINION AND ORDER
it is foreseeable that he could injure the plaintiff in the course of the work.” Chesterman v.
Barmon, 82 Or. App. 1, 4 (1986). Branford does not, however, identify any evidence that
Christensen had known dangerous propensities before his attack on Branford. Christensen
underwent a standard background check and evaluation process when he was hired by
Washington County, and no criminal history was found. Further, Christensen was required to
undergo medical and psychological examinations before he could join the WCSO, which he
passed. ECF 80 at 3. Sheriff Garrett explained in his deposition that, before receiving the
anonymous email about Christensen’s misconduct, Sheriff Garrett did not have any knowledge
of Christensen’s propensity towards violence against women. ECF 82-2 at 21. Branford does not
provide any evidence that Christensen has been violent on other occasions, other than the
March 7, 2015 choking incident. Branford also has produced no evidence to suggest that
Washington County knew or should have known about Christensen’s dangerous tendencies
before that event. Thus, the Court grants Washington County summary judgment against
Branford’s claim of negligent supervision and hiring.
5. Invasion of Privacy
The Washington Defendants also move for summary judgment against Branford’s claim
of invasion of privacy, which she clarifies is a claim under Or. Rev. Stat. § 30.865.13 That statute
creates a cause of action for invasion of personal privacy if a plaintiff can establish that:
Branford’s First Amended Complaint did not mention the invasion of privacy statute
and the Washington Defendants reasonably assumed that Branford intended to make a common
law claim for invasion of privacy and addressed only a common law claim in its motion for
summary judgment. After Branford clarified that she intended her claim to be based on the
Oregon statute, the Washington Defendants addressed her statutory arguments. The Court
considers the Washington Defendants’ statutory arguments, even though raised for the first time
in a reply brief, because before Branford’s response to the Washington Defendants’ motion for
summary judgment, the Washington Defendants were not on notice that Branford intended her
claim to be based on an Oregon statute as opposed to the Oregon common law.
13
PAGE 44 – OPINION AND ORDER
Without the consent of the plaintiff, the defendant disseminated a
photograph, motion picture, videotape or other visual recording of
the plaintiff in a state of nudity, and the defendant knew that at the
time the visual recording was made or recorded the plaintiff was in
a place and circumstances where the plaintiff had a reasonable
expectation of personal privacy.
Or. Rev. Stat. § 30.865(d). Because Lieutenant Black shared the contents of Branford’s cell
phone with County counsel (and, ultimately, a private investigator working for the County),
Branford argues that the County’s conduct meets all of the requirements of Or. Rev. Stat.
§ 30.865(d) and the County’s motion for summary judgment should be denied.
Under Oregon law, liability of public bodies is governed by Or. Rev. Stat. § 30.265,
which holds that “[t]he sole cause of action for a tort committed by officers, employees, or
agents of a public body acting with the scope of their employment or duties and eligible for
representation and indemnification . . . is an action under Or. Rev. Stat. 30.260 to 30.300. . . . No
other form of civil action is permitted.” Or. Rev. Stat. § 30.265(2). Branford does not seek to
hold Washington County liable under the statutes governing liability for public bodies, and as no
other form of civil action is permitted, her claim for invasion of personal privacy must fail as a
matter of law.
In addition, the criminal statutes for invasion of privacy in the first and second degrees,
which criminalize making or recording an intimate photograph without someone’s consent,
contain an exception for activities “undertaken in the course of bona fide law enforcement or
corrections activity or necessary to the proper functioning of the criminal justice system.” Or.
Rev. Stat. § 163.702. The PPB and the WCSO investigations into criminal and inappropriate
activities by law enforcement officers were undertaken in the course of bona fide law
enforcement activity and were necessary to the proper functioning of the criminal justice system.
The exemption provided for in the criminal statutes is logical and necessary to avoid imposing
PAGE 45 – OPINION AND ORDER
criminal liability on law enforcement officers who are carrying out important government
functions. A similar exemption should be implied in the civil context. Accordingly, the sharing
of information for legitimate law enforcement purposes may not give rise to liability under Or.
Rev. Stat. § 30.865.
The Oregon invasion of privacy statute, if interpreted the way that Branford argues,
would make all law enforcement agencies potentially civilly liable every time they share
information internally and among officers and attorneys in the course of a criminal investigation,
if that information happens to also contain private images. Every time local police officers seize
a drug trafficker’s cell phone and turn it over to the FBI, if that cell phone also contains sensitive
photographs, under Branford’s interpretation of the statute, the local police could be subject to
civil liability under this statute. The Oregon legislature could not have intended such an absurd
result. See John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2395 (2003).
Accordingly, the Court declines to interpret Or. Rev. Stat. § 30.865 to impose liability on law
enforcement agencies who share lawfully-obtained information among officers, attorneys, and
investigators for a legitimate law enforcement purpose. The Court grant summary judgment in
favor of the Washington Defendants against Branford’s claim of invasion of privacy.
6. WCSO Liability for Christensen’s Battery
The doctrine of respondeat superior establishes that “an employer is liable for an
employee’s torts when the employee acts within the scope of employment.” Chesterman v.
Barmon, 305 Or. 439, 442 (1988). No malfeasance or negligence on the part of the employer is
required to hold the employer liable for the torts of its employee. Id. Branford alleges that
Christensen’s act of entering her home and choking her were tortious acts committed with the
scope of Christensen’s employment for the WCSO.
PAGE 46 – OPINION AND ORDER
Three requirements must be met in order to hold an employer liable for the conduct of its
employee. These requirements are: “(1) whether the act occurred substantially within the time
and space limits authorized by the employment; (2) whether the employee was motivated, at
least partially, by a purpose to serve the employer; and (3) whether the act is of a kind which the
employee was hired to perform.” Id.
Branford argues that her relationship with Christensen was akin to a relationship between
a “youth pastor, friend, confessor, and priest” to a young plaintiff, or to the relationship between
a Boy Scout leader and a troop member. See Fearing v. Bucher, 328 Or. 367, 372 (1999); Lourim
v. Swensen, 328 Or. 380, 386 (1999). In Fearing, the Oregon Supreme Court found that “the
priest’s conduct in cultivating a trust relationship with the plaintiff was motivated, at least in
part, by a desire to further the interests of the Archdiocese, that the conduct was of a kind that the
priest was hired to perform, and that the conduct led to the sexual assaults.” Lourim, 328 Or.
at 386.
Christensen, however, was not hired to cultivate an intimate relationship with Branford,
and an intimate relationship with Branford would not further the interests of the WCSO. The
WCSO hired Christensen to carry out the duties of a patrol sergeant in the Sheriff’s office.
Christensen’s intimate relationship with Branford was not connected to, and not in furtherance
of, the duties he was required to perform as a patrol sergeant.
Chesterman is a much more analogous case. Chesterman involved a plaintiff’s attempt to
hold an employer liable for its employee entering the plaintiff’s house and assaulting her.
Chesterman, 305 Or. at 443. In Chesterman, the employee worked for a construction company
that provided remodeling bids, and entering plaintiff’s home and sexually assaulting plaintiff
were not within the scope of his employment. Id. at 441. Although it appears as though part of
PAGE 47 – OPINION AND ORDER
Christensen’s job as a patrol deputy required him to travel around Washington County, it was not
part of his job duty to enter Branford’s home, even while he was on duty. It was certainly not
part of Christensen’s job to assault and choke Branford, nor to pressure her into maintaining a
sexual relationship with him, and Christensen’s sexual relationship with Branford could not
possibly been motivated by a desire to serve Washington County. Accordingly, there is no
genuine dispute of fact that Christensen’s act of entering Branford’s house and choking her was
outside the scope of his employment. This action was “outside the limits of time and space, [was]
not motivated by a purpose to serve the employer and [was] not of a kind which” Christensen
was hired to perform. Chesterman, 305 Or. at 443. The County is not vicariously liable for
Christensen’s conduct. The Court grants the County’s the motion for summary judgment against
Branford’s claim based on Christensen’s assault.
B. Branford’s Motion for Partial Summary Judgment Against Christensen
Branford cross-moves for partial summary judgment on her battery claim against
Christensen. In her declaration, Branford describes how Christensen “grabbed [her] by the throat,
choked [her], and strangled [her] cutting off [her] airway.’ ECF 94 at 18. In 2016, Christensen
pled guilty to strangulation constituting domestic violence. ECF 86-1 at 10. Christensen did not
respond to Branford’s partial motion for summary judgment. In his answer to her complaint,
Christensen admitted “that Defendant Christensen grabbed Plaintiff’s hair with one hand and put
his other hand around her throat.” ECF 21 at ¶ 24.
The elements of battery under Oregon law are:
[T]he conduct which brings about the harm must be an act of
volition on the actor’s part, and the actor must have intended to
bring about a harmful or offensive contact or put the other party in
apprehension thereof. It is not necessary that the contact do actual
physical harm—it is sufficient if the contact is offensive or
insulting.
PAGE 48 – OPINION AND ORDER
Johnson v. Jones, 269 Or. App. 12, 17 (2015) (quoting Bakker v. Baza’r, Inc., 275 Or. 245, 249
(1976)). Christensen does not dispute that he intentionally strangled Branford or that his contact
was offensive. He admits that he put his hand around her throat and that he pleaded guilty to
strangulation constituting domestic violence. ECF 21 ¶33. There is no genuine dispute of
material fact as to whether Christensen’s conduct meets the elements of battery under Oregon
law. Accordingly, Branford’s motion for partial summary judgment is granted.
CONCLUSION
The Court GRANTS IN PART AND DENIES IN PART the Washington Defendants’
Motion for Summary Judgment (ECF 79) and GRANTS Branford’s Partial Motion for Summary
Judgment against Defendant Christensen (ECF 84). Thus, the claims that remain for trial are: (1)
Branford’s sex discrimination claims under federal and state law against Washington County for
maintaining a hostile work environment based on the actions of Branford’s coworkers at the
WCSO (Plaintiff’s First and Second Claims); (2) Branford’s § 1983 claim against Christensen
(Plaintiff’s Ninth Claim); (3) Branford’s battery claim against Christensen (Plaintiff’s Thirteenth
Claim, damages only); and (4) Branford’s intentional infliction of emotional distress claim
against Christensen (Plaintiff’s Fourteenth Claim).
IT IS SO ORDERED.
DATED this 2nd day of May, 2019.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 49 – OPINION AND ORDER
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