Sweet v. State of Oregon et al

Filing 44

ORDER: Granting in Part Denying in Part Motion for Leave to File First Amended Complaint 26 . Granted with respect to Flaherty and the County, and denied with respect to the state. Order Granting the State's Motion to Dismiss 37 , and plaintiff's claims against the state are dismissed; Signed on 10/30/2013 by Chief Judge Ann L. Aiken. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

Civ. No. 6:13-CV-0657-AA

SHARON SWEET,

OPINION AND ORDER

Plaintiff,

v.
STATE OF OREGON; PATRICK
FLAHERTY, individually and in
his capacity under color of
state law as Deschutes County
District Attorney; and
DESCHUTES COUNTY, a county of
the State of Oregon,
Defendants.

AIKEN, Chief Judge:
Plaintiff

Sharon

Sweet's

claims

arise

out

of

alleged

discrimination by defendant Patrick Flaherty during plaintiff's
employment

in the

Deschutes County District Attorney's

1 - OPINION AND ORDER

Office.

Under

federal

1983,

the

VII,

law,

Age

plaintiff alleges

Discrimination

in

violations

Employment

and whistleblower retaliation.

Act

infliction

interference

with

of

emotional

economic

(the

County) ,

and

Deschutes

U.S. C.

(ADEA),

§

Title

wrongful discharge,

distress,

relations.

action against the State of Oregon

42

Plaintiff also alleges state

law violations of whistleblower retaliation,
intentional

of

and

Plaintiff

(the State),

County

intentional
brings

this

Deschutes County

District

Attorney

Patrick

Flaherty (Flaherty).
Plaintiff
complaint.
proposed
dismiss

moves

The

State

amendments
for

for

leave

opposes
would

lack of

be

the

file

motion

futile.

a

to

The

first

amend

State

subject-matter or personal

well as failure to state a claim.
Plaintiff's motion

(6).

to

to

amend

Fed.
is

R.

Civ.

granted,

amended

because

also

the

moves

to

jurisdiction as

P.

12 (b) (1),

in part,

(2),

and the

State's motion to dismiss is granted.
BACKGROUND
In

June

2006,

Deschutes County.
The

first

with

(DAO)

a

FTE

with

plaintiff

the

was

Deschutes

a

Deschutes

criminal

would

was

hired

as

an

investigator

for

Plaintiff simultaneously filled two positions.

position

position
as

plaintiff

0.75
County

investigator.
County Legal

perform

2 - OPINION AND ORDER

full-time
District

The

Attorney's

Office

second position was

Counsel

investigative

(FTE)

equivalent

(Legal
work

for

0.25

Counsel)

where

other

County

departments.
offices

Although

and

these

entailed

positions

with

different

responsibilities,

different

were

plaintiff

received only one paycheck from the County for both positions.
From June 2006 through January 2011, plaintiff worked under
Deschutes

County

position.

District

Attorney

Mike

Dugan

for

her

During this four and a half year duration,

DAO

plaintiff

alleges that she received good performance evaluations and had
never been disciplined for any reason. On May 18, 2010, however,
Dugan lost a highly-contested election to Flaherty.
After Flaherty won the election but prior to taking office
on

3,

2011,

attorneys

filed

a

Employment

Relations

the

January

unionization

plaintiff
petition
Board.

process

and
to

unionize

Plaintiff

but

eighteen

deputy
with

the

participated

ultimately

was

not

district
Oregon

throughout

part

of

the

union due to legal reasons.
On October 7,
position

with

the

2011,

Flaherty terminated plaintiff from her

DAO.

Plaintiff

Flaherty was elected,
the union.

alleges

that

from

the

time

Flaherty openly opposed the formation of

Plaintiff claims that after Flaherty took office, he

singled out and terminated plaintiff and other employees because
of their involvement with the formation of the union.
further

claims

that

she

and

other

terminated due to their age and gender.

3 - OPINION AND ORDER

County

Plaintiff

employees

were

On October 20,

2011,

plaintiff filed a grievance with the

Interim County Administrator Erik Kropp (Kropp) and the Board of
County

Commissioners

wrongfully

(the

terminated

Board)

under

claiming

County

that

employment

she

had

policies.

been
Kropp

allegedly concluded that Flaherty had violated County personnel
policies

and

ordered

Flaherty

position with the DAO.
cooperate

or

respond

unsuccessful

efforts

to

Flaherty,
to

Kropp.

to

be

reinstate
however,

After

plaintiff

to

her

allegedly refused to

repeated

reinstated,

but

plaintiff

ultimately
filed

complaint with the Oregon Bureau of Labor and Industries

a

(BOLl)

and the Equal Employment Opportunity Commission (EEOC).
On

January

30,

2012,

Flaherty

sent

plaintiff

a

second

termination letter. In response to this letter, plaintiff sent a
memorandum

to

Kropp

and

terminated her,

in part,

BOLl

EEOC.

and

the

the

Board

stating

that

Flaherty

in retaliation for her complaint with

Kropp

then

advised

Flaherty

to

place

plaintiff on administrative leave due to the pending grievance.
On

March

5,

2012

Flaherty

placed plaintiff

on

administrative

leave.
On April
BOLl claiming,

6,

2 012 plaintiff filed a

inter alia,

because of her first
that

Flaherty

formation

and

that Flaherty retaliated against her

BOLl complaint.

subsequently
involvement

4 - OPINION AND ORDER

second complaint with

began

with

the

Plaintiff further alleges

investigating
union.

her

Plaintiff

role

in

requested

that Kropp take action to stop Flaherty's investigation, but the
investigation continued.
Despite

her

initial

continued

to

different

capacities.

due

to

a

work

for

shortage

termination
the

County

Kropp
of

position was temporary.

from
on

informed

work

with

On July 1,

a

the

DAO,

full-time

plaintiff,

the
2012,

plaintiff
basis

however,

County,

the

in
that

full-time

the County permanently

reduced plaintiff's hours to 0.25 FTE.
Sometime in early 2013,
actions.

After

the

the County investigated Flaherty's

investigation,

the

County

determined

that

there was no evidence of a violation of its policy and there was
no corrective action that the County could take.
On April 17,

2013, plaintiff filed this action against the

State, County, and Flaherty.
DISCUSSION
Plaintiff

moves

for

leave

to

file

a

first

amended

complaint. The State opposes plaintiff's motion to amend because
the amended complaint would be futile as to the State. The State
also

moves

to

dismiss

for

lack

of

subject-matter

jurisdiction and for failure to state a claim.

Fed.

12(b) (1),

to

( 2) '

(6).

The

State's

opposition

or personal
R.
the

Civ.

P.

amended

complaint and its motion to dismiss rely on the same argument;
namely, that the State is not plaintiff's employer,

5 - OPINION AND ORDER

or if it is

plaintiff's

employer,

it

is

entitled to

sovereign immunity and

is immune from suit in federal court.

I.

Plaintiff's Motion for Leave to Amend
Leave

justice

to

so

amend

requires,"

liberality." Fed.
Aspeon,

Inc.,

omitted) .

pleadings

R.

316

Although

and

Civ.

F.3d

courts
P.

to

be

apply

15 (a) (2);

1048,

leave

should

1051
amend

Rule

"freely"

15

"with

Cir.

granted

2003)

"when

extreme

Eminence Capital,

(9th
is

given

LLC v.

(citations

liberally,

it

is

not automatic. See Eminence Capital, 316 F.3d at 1051.
In determining whether a motion to amend should be granted,
pertinent
undue

factors

delay,

amendment,

the

court

prejudice

and

to

whether

should consider

the

opposing

previous

Corinthian Colls. ,

2011);

Nunes

Ashcroft,

These

factors

v.

are

not

375

party,

amendments

United States v.

F. 3d

weighted

include bad faith,
futility

have

655 F. 3d 98 4,
805,

equally;

808

Here,

allowed.

9 95

(9th Cir.

(9th

Cir.

"futility

it is an improper party,

first
Court,

2004).

alone
Nev.

can
Sys.

(9th Cir. 2009).

the State claims that plaintiff's amendments would be

futile because the State is

entitled

the

been

justify the denial of a motion" to amend. Ahlmeyer v.
of Higher Educ., 555 F.3d 1051, 1055

of

to

sovereign

amended
and

the

6 - OPINION AND ORDER

Flaherty's

employer,

or if it is Flaherty's employer,
immunity.

complaint
County

either not

prior

and

Notably,
to

Flaherty

plaintiff

receiving
answered

leave

it is

filed
from

plaintiff's

so

her
this

first

amended

complaint

before

the

motion

for

leave

to

amend

was

granted.
The parties,
rule

on

the

however,

motion

should have waited for the Court to

before

proceeding

on

their

own

accord.

Nevertheless, with this admonition, plaintiff's motion for leave
to file a first amended complaint is granted as to the proposed
claims against Flaherty and the County.

The Court addresses the

futility of plaintiff's proposed claims against the state in the
context

of

the

State's

motion

to

dismiss,

as

the

State's

arguments apply to claims asserted in plaintiff's original and
amended complaint.
II.

The State's Motion to Dismiss

Under Fed. R. Ci v.

P. 12 (b) ( 6) , a complaint is construed in

favor of the plaintiff, and its factual allegations are taken as
true.

Daniels-Hall v. Nat'l Educ. Ass'n,

Cir.

2010) .

"conclusory"

However,

the

allegations,

unreasonable inferences.
motion

to

reasonable

dismiss,

need

unwarranted

Id. Thus,

the

inferences

court

that

not

accept

deductions

of

998

(9th

as

true

fact,

or

"for a complaint to survive a

non-conclusory
from

629 F.3d 992,

'factual

content,

must

content,'
be

and

plausibly

suggestive of a claim entitling the plaintiff to relief." Moss
v.

United

States

2009).

"A

claim

pleads

factual

Secret
has

facial

content

7 - OPINION AND ORDER

Serv.,

that

572

F.3d

plausibility
allows

the

962,

969

(9th

when

the

plaintiff

court

to

draw

Cir.

the

reasonable
misconduct
(2009).

inference

the

alleged." Ashcroft v.

"[O] nee a

supported

that

by

defendant
Iqbal,

is

liable

129 S.

Ct.

any

set

of

facts

the
1949

it may be

consistent

allegations in the complaint." Bell Atlantic Corp.

with

v.

the

Twombly,

u.s. 544, 563 (2007).

550

Here,
it

1937,

claim has been stated adequately,

showing

for

is

the State claims that it should be dismissed because

not

sovereign

plaintiff's
immunity

employer,

applies.

or

alternatively,

Plaintiff,

however,

if

it

contends

is,
that

the State should be considered her employer because Flaherty is
a

joint

employee

Alternatively,

of

both

the

State

the

and

County.

plaintiff contends that the State is plaintiff's

indirect employer because it,

through Flaherty,

has control of

plaintiff. 1 The fact that Flaherty is an elected official rather
than

a

traditional

"hired"

employee

typically

involved

in

an

employment discrimination case presents some unique questions.
There must be some connection between the employer and the
employee

for

employment

law

protections

to

apply,

connection does not necessarily have to be direct.
v. Musicians Union Local 47,

1

633 F.2d 880,

883

but

that

See Lutcher

(9th Cir. 1980).

Plaintiff argues that the State is plaintiff's employer because
the DAO is a State entity while simultaneously and
inconsistently arguing that the DAO is not entitled to so~ereign
immunity because it is not a State entity. However, for purposes
of this motion, the Court discusses her arguments that the State
is her employer.
8 - OPINION AND ORDER

For

two

employers

to

be

considered

"joint

employers,"

both

employers must control the terms and conditions of employment of
the

employee.

F.3d 1270,

See,

1275

the

2003)

Pac.

in

relationship

Maritime Ass' n,

(quotations

engage

2003).

v.

Pac.

Maritime Ass'n,

Likewise,

under

the

351

indirect

the employer must have "some peculiar control

employee's

Anderson v.

E.E.O.C.

(9th Cir.

employer theory,
over

e.g.,

omitted).

"discriminatory

with

the

direct

33 6 F. 3d 924,

Also,

the

indirect

interference"

with

employer."

932

(9th

Cir.

employer

must

the

employee's

relationship with their direct employer. Id.
In Oregon,
the

State

for

a

District Attorney

some purposes

( DA)

may act on behalf of

and on behalf of the

county they

serve for other purposes. The Oregon constitution states:
There shall be elected by districts comprised of one
or more counties, a sufficient number of prosecuting
Attorneys, who shall be the law officers of the Stater
and of the counties within their respective districts,
and shall perform such duties pertaining to the
administration of Law,
and general police as the
Legislative Assembly may direct.
Or. Const. art. VII,
"[T]he
attorneys

as

Coleman,

131

example,

a

§

17 (emphasis added).

legislature

has

prosecutors

'on behalf

Or.
DA

App.

386,

"conduct [ s] ,

expressly

390
on

of

(1994)
behalf

prosecutions" within their district.

Or.

designated
the

state.'"

(emphasis
of
Rev.

district

the
Stat.

State v.

added).

For

state,

all

§

8. 660 ( 1)

(emphasis added). Also, "[t]he district attorney shall prosecute
9 - OPINION AND ORDER

for all penalties and forfeitures to the state
no

other

mode

of

prosecution

provided by statute

•

11

and

Id.

collection

at

§

see also Kleinman v. Multnomah Cnty.,
Or.

Oct.

DAs) .
for

15,

2004)

for which

8. 680

is

expressly

(emphasis added);

2004 WL 2359959 at *4

(discussing various

statutes

(D.

pertaining to

Several Oregon cases also discuss the DA as a prosecutor

the

State.

E.g.,

additional cases).

Kleinman,

Thus,

2004

WL

at

*4

(citing

several

when acting on behalf of the State,

a

DA is primarily acting as a prosecutor.
On the other hand,

when acting on behalf of a

county,

a

DA's role is primarily administrative. For example, the DA hires
deputy district attorneys,
Stat.

§§

8. 780,

8. 7 60.

who are paid by the county. Or. Rev.

The

DA also

determines

how

the

budget

allocated by the county will be spent on office space, supplies,
and additional personnel. Id. at

§

8.850.

With respect to control, both the State and the County have
some

control over a

DA.

Oregon's

constitution states

Governor "may remove from Office a

that

the

Prosecuting Attorney .

. for incompetency, Corruption, malfeasance, or delinquency in
office,

or other

sufficient

Or. Const. art. VII,

§

salary

240.195.

On the other hand,

their

DA.

Id.

10 - OPINION AND ORDER

stated in

such resolution.

11

20. Further, DAs are paid pursuant to the

State's

elect

plan.

cause

Or.

at

Rev.

Stat.

§§

8.552,

240.240(2),

it is the people of the county who
§

8.610.

The

county

also

provides

additional

compensation

district attorneys.
is

whether

the

Id.

State

to
at

DAs

and

8. 830,

§§

executed

compensation
8. 760.

control

to

However,

over

deputy

the issue

plaintiff

or

her

employment relationship with the County.
Nonetheless, plaintiff bases her claim against the State on
the facts
the

that eighty percent of Flaherty's salary is paid by

State

and

the

State

can

remove

Flaherty

from

office

in

certain instances. However, these allegations merely restate the
fact that a DA may act of behalf of the State for some purposes
and on behalf of the County for other purposes.
WL at

*7-8

(indicating that Oregon district

attorneys

the state in executing prosecutorial functions,
different

result

possible

if

Kleinman,

allegations

2004

act

for

but recognizing

were

related

to

function as employer of county employees); see also Goldstein v.
City

of

Long

(applying

Beach,

715

F.3d

750,

function-by-function

753-54

(9th

analysis

Cir.

to

2013)

determine

"employer/employee") .
Plaintiff
behalf

of

correctly

Deschutes

role." Pl.'s Resp.
the

State

was

acknowledges

County

at 10.

in

DAO

outside

Plaintiff,

control

of

that

"Flaherty

of

his

however,

Flaherty

and

acted

on

prosecutorial

also argues that
of

her,

through

Flaherty's actions as DA.

Her argument does not correspond with

plaintiff's
repeatedly

attempts

to

be

reinstated,

given

attempted

to

get

reinstated

through

11 - OPINION AND ORDER

that
Kropp

plaintiff
and

the

Board, all of whom are County officials. Even if plaintiff could
claim

she

sought

help

from

certainly

ignorance,

the

Kropp

County

out

the

Board

and

of

convenience

would

not

or

have

attempted to compel Flaherty to reinstate plaintiff if they did
not

have

suggest

authority

that

employment

the

or

to

do

State

so.

Plaintiff

exerted control

engaged

in

alleges

over

"discriminatory

the

no

facts

terms

of

interference"

to
her

with

respect to plaintiff's employment relationship with the County.
Additionally,

it was the County that compensated plaintiff and

plaintiff

provided

with

alternative

temporary

employment

arrangements.
In sum, there are no facts or law to support the allegation
that Flaherty acted on behalf of the State when carrying out his
administrative

functions

as

plaintiff's

Further,

supervisor.

plaintiff cites no law that confers authority upon the State to
control County employees
authorizes
Although

DAs

to act

Flaherty

is

by the County,
State

is

not

plaintiff,

on behalf of the
a

dealing with hiring,

such as

State

firing,

officer

or

that

State in this
in

some

regard.

respects,

when

and supervision of staff employed

he is acting on behalf of the County.
plaintiff's

otherwise

employer

for

purposes

Thus,

the

of plaintiff's

Title VII, the ADEA, or state law claims.
Alternatively,

even

if

the

State

could

be

viewed

as

plaintiff's employer by virtue of its connection to the DAO, the
12 - OPINION AND ORDER

Eleventh

Amendment

federal court.
465

u.s.

89,

E.g.,

99

State

plaintiff

from

Pennhurst State Sch.

suing

the

& Hosp. v.

State

in

Halderman,

(1984).

As a result,
the

bars

upon

plaintiff has failed to state a claim against
which

relief

can

be

granted.

Therefore,

the

State's motion to dismiss is granted.
CONCLUSION
Plaintiff's
complaint

motion

(doc.

26)

for

leave

to

file

first

amended

is GRANTED with respect to Flaherty and the

County, and DENIED with respect to the State. The State's motion
to dismiss

(doc.

37)

is GRANTED,

and plaintiff's claims against

the State are DISMISSED.

·

IT IS SO ORDERED . . '''~~L
Dated this

~~aay of October, 2013.

Ann Aiken
United States District Judge

13 - OPINION AND ORDER