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
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