Mendoza v. Wasco County et al, No. 3:2009cv01300 - Document 44 (D. Or. 2010)
Court Description: ORDER: Opinion & Order Denying Defendants' Motion for Partial Summary Judgment 27 ). Signed on November 8, 2010 by Magistrate Judge Dennis J. Hubel. (hubel2, )
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Mendoza v. Wasco County et al Doc. 44 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF OREGON 11 PORTLAND DIVISION 12 ANGELICA MENDOZA, 13 14 15 16 17 18 Plaintiff, v. WASCO COUNTY, a political subdivision of the State of Oregon; RICK EIESLAND, an individual; and STEVEN CONOVER, an individual, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV-09-1300-HU OPINION & ORDER 19 20 21 Michael K. Kelley Matthew E. Malmsheimer HAGLUND KELLEY HORNGREN JONES & WILDER LLP 200 S.W. Market, Suite 1777 Portland, Oregon 97201 22 Attorneys for Plaintiff 23 24 25 26 27 28 Kari Furnanz HOFFMAN, HART & WAGNER LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Attorney for Defendants HUBEL, Magistrate Judge: Plaintiff Angelica Mendoza brings this employment-related 1 - OPINION & ORDER Dockets.Justia.com 1 action against defendants Wasco County, Wasco County Sheriff Rick 2 Eiesland, and Wasco County Chief Deputy Sheriff Steven Conover. 3 Defendants move for partial summary judgment. 4 All parties have consented to entry of final judgment by a 5 Magistrate Judge in accordance with Federal Rule of Civil Procedure 6 73 and 28 U.S.C. § 636(c). I deny the motion. 7 BACKGROUND 8 9 Plaintiff began working for the District Attorney's (DA) Office in Wasco County in August 2004. The DA's Office works 10 closely with the Sheriff's Department, and plaintiff's Office 11 Specialist 12 offices and translating for sheriff's deputies when working with 13 Spanish-speaking individuals. 14 work at the DA's Office routinely brought her into contact with 15 sheriff's deputies, including Conover. 16 At job duties times, included Sheriff's transporting mail between Pltf's Affid. at ¶ 2. Department the Plaintiff's Id. employees and DA Office 17 employees socialized together including going to lunch as a group 18 or for drinks after work. 19 participating in any of those social activities when Conover was 20 there. 21 with 22 occasion. 23 Id. Pltf's Depo. at p. 36. Plaintiff denied However, plaintiff sometimes did go out after work Sheriff's Department employees, including Eiesland, on Id. Plaintiff had a joking relationship with her coworkers, 24 including sheriff's deputies, that sometimes involved sexual or off 25 color jokes. 26 uncomfortable, however. Id. Plaintiff had a friendly relationship 27 with Eiesland. 28 participated in included her approaching Eiesland's vehicle and Id. at p. 40. Id. at p. 37. 2 - OPINION & ORDER No one else but Conover made her She admits that one of the jokes she 1 2 raising her shirt in front of Eiesland. Generally, plaintiff was aware that sexual harassment was not 3 permitted at Wasco County. Pltf's Depo. at p. 9. She also 4 understood that employees needed to make a report if they were 5 subjected to harassment. Id. at p. 10. 6 A. Incidents Between Plaintiff and Conover 7 When plaintiff first started working for the DA's Office, 8 Conover asked plaintiff if she was married. 9 Plaintiff responded that she was, they continued chatting, and he 10 left. 11 encountered him. 12 Id. Pltf's Affid. at ¶ 3. He remained "very friendly" toward her every time she Id. Eventually, Conover began to call her "sweetie." Id. She 13 initially thought nothing of it, but finally told one of her 14 friends in the DA's Office about it. Id. 15 plaintiff that Conover was a "predator." Id.1; Pltf's Depo. at p. 16 43 (noting verbal statements of 17 called her "sweetie"). This person told "sweetie"), p. 81 (frequently 18 When plaintiff did her mail run to the Sheriff's Department, 19 Conover began coming out of his office to greet her. Pltf's Affid. 20 at ¶ 4. 21 was you. 22 also Pltf's Depo. at p. 43 (noting verbal statements like "you 23 smell good"), p. 81 (frequently said "you smell good"). 24 25 He would inhale deeply and say things like "I thought that The I could smell you coming. verbal conduct was You smell good." embarrassing and Id.; see humiliating plaintiff, especially because it occurred in front of others. 26 27 1 28 to reply. Defendants make several evidentiary objections in their I address these at the end of this opinion. 3 - OPINION & ORDER 1 Pltf's Affid. at ¶ 4; Pltf's Depo. at p. 81. 2 Added to the verbal statements, Conover's conduct eventually 3 became physical when at one point, he started poking plaintiff in 4 the waist or ribs as he walked by. 5 Depo. at p. 80 (Conover would run his finger up and down her back 6 and poke her; touched her on a number of occasions). 7 infrequent, it made plaintiff uncomfortable. Pltf's Affid. at ¶ 5; 8 Pltf's Depo. at p. 80. Pltf's Affid. at ¶ 5; Pltf's Although 9 Plaintiff also described that Conover would "hang out" at 10 plaintiff's desk in the front reception area of the DA's Office, 11 leaning on her desk for long periods of time, often just watching 12 and not making conversation. 13 for this conduct is suggested in the deposition excerpt. 14 in her affidavit, she notes that the "lurking" increased after May 15 2007, when Conover found out that plaintiff separated from her 16 husband. 17 would pretend to read a newspaper, but she could tell he was 18 watching her. 19 her work and made her uncomfortable to even answer the phone. 20 Pltf's Depo. at p. 66. Pltf's Affid. at ¶ 11. Id. No time frame However, She notes that at times, Conover It made it difficult for her to concentrate on A county potluck occurred in December 2006. Id. Plaintiff was 21 cleaning up dishes in a small break room in the DA's Office when 22 Conover came up behind her and said she could go and do those at 23 his house. 24 hand up by her left shoulder, and one hand on her waist and pressed 25 up against her. 26 Plaintiff told a coworker, Elizabeth Osborne, about the incident 27 and also spoke withe Deputy DA Leslie Wolfe, who suggested that 28 plaintiff report the incident to Eiesland. Pltf's Depo. at p. 15. Id. at p. 16. 4 - OPINION & ORDER At the same time, he put one The conduct lasted seconds. Id. Pltf's Affid. at ¶ 6; 1 2 Pltf's Depo. at p. 16 (noting report to Osborne). A week or two after this incident, plaintiff reported it to 3 Eiesland. 4 at ¶ 7 (noting one week).2 5 spoken to Eiesland about Conover's conduct. Pltf's Depo. at p. 18. 6 Plaintiff and Eiesland met in a back room because she did not want 7 Conover to know that she was complaining about him. 8 She was hoping that Conover would not learn that she had come 9 forward about it. 10 11 Pltf's Depo. at p. 17 (noting two weeks); Pltf's Affid. Id. anybody in trouble. This was the first time plaintiff had Id. at p. 19. She explained that she did not want to get Id. at p. 20. Plaintiff states that Eiesland told her that he would "handle 12 it" and would speak to Conover. Pltf's Affid. at ¶ 7. She further 13 states that Eiesland additionally said that he was glad plaintiff 14 let him know "because if some day you sue the County for sexual 15 harassment, I can say that you never let me know that something was 16 going on." Id. 17 In deposition, plaintiff testified that she hoped that by 18 talking to Eiesland, he would talk to Conover and that "it" would 19 stop. 20 Conover about appropriate workplace behavior, but not let him know 21 that plaintiff was the one making the complaint. Pltf's Depo. at p. 21. She wanted Eiesland to talk to Id. 22 Although Eiesland honored plaintiff's request, as far as she 23 knows, to keep her name out of it, she believes he spoke to 24 Sheriff's Department employees as a group and did not single out 25 26 27 28 2 Eiesland testified that plaintiff never reported this incident to him. Eiesland Depo. at p. 30-31. Defendants acknowledge that plaintiff's version of the facts must be accepted as true for the purposes of summary judgment. Deft's Mem. at p. 3 n.1. 5 - OPINION & ORDER 1 Conover. Id. at p. 22. 2 happen. 3 spoken with everyone, she thanked him. 4 of this stuff" would happen again. Id. This was not what she wanted to have However, when Eiesland told plaintiff that he had Id. She hoped that "none Id. at p. 23. 5 Plaintiff states that for about a month after Eiesland spoke 6 to the Sheriff's Department employees about behavior, Conover 7 stopped calling her sweetie and making other verbal comments. 8 Pltf's Affid. at ¶ 10. 9 the sides. Id. Soon, however, Conover was again routinely calling 10 her 11 physically, and poking her in the waist and ribs. 12 "sweetie," He also quit touching her and poking her in telling her she smelled good, touching her Id. Plaintiff described another incident in which she walked into 13 the Sheriff's Department and Conover asked her how she was doing. 14 Pltf's Depo. at p. 44. 15 Conover sat there, he turned around, tapped his leg, and said "it 16 would be better if you were sitting right here." 17 deposition, plaintiff states that when this occurred, she just 18 chuckled and kept walking. 19 more details, such as that Conover actually said "hi sweetie, how 20 are you doing," to which plaintiff responded fine and then asked 21 how he was doing. 22 legs wide open, patted the inside of his thigh, and said "I would 23 be doing better if you were sitting right here." 24 was shocked by what he said and responded by stating "no, I am fine 25 where I'm at." 26 she could. 27 for this incident, but plaintiff states in her affidavit that it 28 occurred in the spring of 2008. Id. Plaintiff responded she was fine. Id. As In her In her affidavit, she gives a few Pltf's Affid. at ¶ 15. Id. Id. Id. Conover then spread his Id. Plaintiff She chuckled nervously and left as quickly as The deposition testimony does not pinpoint a date 6 - OPINION & ORDER Id. 1 In deposition, Conover admitted that this incident occurred. 2 Conover Depo. at pp. 75-76. 3 sexual overtone to that statement and stated that it was not of a 4 sexual nature. 5 and plaintiff were friends. Id. Conover denied that there was any He stated he was joking around and thought he Id. 6 Plaintiff admits she never told Conover not to say "these" 7 comments to her, referring presumably, to the comments about 8 "sweetie" and "smelling good." 9 affidavit, she explains that she did not tell Conover to stop 10 making sexual comments to her out of fear of his position as Chief 11 Deputy. 12 believed reporting this particular incident regarding the pat on 13 the thigh to Eiesland would not do any good because her previous 14 report had not been sufficient to stop the harassment. 15 hoped that by not responding to Conover, he would get the message 16 that his conduct was unwanted and offensive and that he would quit. 17 Id. 18 Pltf's Depo. at p. 44. Pltf's Affid. at ¶ 16. In her She further states that she Id. She According to plaintiff, in the spring of 2008, Conover's 19 physical conduct toward her escalated. 20 started to rub his fingers up and down her back over her bra strap. 21 Id. 22 in the spring of 2008 and November 2008. 23 Pltf's Affid. at ¶ 13. He This happened two or three times between an unspecified date Id. At the time plaintiff was working in the DA's Office, there 24 was a surveillance camera recording her portion of the office. 25 Pltf's Affid. at ¶ 14. 26 for security purposes. 27 learned that Conover was watching her on the surveillance cameras. 28 Id. On one occasion, Conover actually called plaintiff at her desk 7 - OPINION & ORDER It was a feed to the Sheriff's Department Id. In the spring of 2008, plaintiff 1 to tell her he liked what she was wearing. 2 from other sheriff's deputies, including Detective Scattergood, 3 that Conover would make a point of standing in front of the 4 surveillance videos in order to watch plaintiff. 5 plaintiff even more uncomfortable with Conover's actions and it 6 made it difficult for her to focus on her work, wondering if he was 7 watching her on the video camera. 8 9 Id. Plaintiff learned Id. This made Id. The final incident of harassment by Conover noted by plaintiff occurred in November 2008. On November 12, 2008, plaintiff was 10 standing at the front desk of the Sheriff's Department talking with 11 Donna Lindsey and office manager Mary Drury. 12 19; Pltf's Depo. at p. 45. 13 he passed plaintiff, he rubbed both of his hands up and down her 14 sides, from her waist up and over her bra strap and back down 15 again. 16 Pltf's Affid. at ¶ Conover walked into the office and as Pltf's Affid. at ¶ 19; Pltf's Depo. at pp. 45-46. This was embarrassing and humiliating to plaintiff. Pltf's 17 Depo. at p. 46. 18 "kind of shocked." 19 and that it was just uncomfortable, and silent. 20 walking, as did the other men who were with him. 21 everyone 22 embarrassing. 23 embarrassed that she did not know what to do and gave a startled 24 jump.3 there She states that she and Drury looked at each other Id. saw Id. She further states that nobody said much, the whole thing and Id. Conover kept Id. that it She thought was very In her affidavit, she states that she was so Pltf's Affid. at ¶ 19. Id. 25 26 27 28 3 In response to plaintiff's report of this incident, the Sheriff's Department made a copy of the surveillance video of the reception desk for the date and time in question. It is submitted as an exhibit by defendants in support of the motion. Deft's Exh. B. I have viewed the video. There, Conover enters 8 - OPINION & ORDER 1 Although plaintiff does not appear to address her report of 2 this incident in her deposition testimony or her affidavit, a May 3 6, 2009 "Notice of Charges" to Conover from Eiesland notes that in 4 November 2008, Eiesland received a complaint of possible unwanted 5 contact between Conover and plaintiff. 6 Pltf's Depo. at p. 75 (stating that the DA's Office initiated an 7 investigation of Conover based on her complaints). Pltf's Exh. 9; see also 8 Eiesland's May 6, 2009 "Notice of Charges" indicates that in 9 accordance with Wasco County policy addressing investigations of 10 command officers, he requested an investigation from outside the 11 agency. 12 Pltf's Exh. 9. Other exhibits submitted by plaintiff indicate that several 13 different 14 complaints against Conover. A summary prepared by the Oregon State 15 Police states: 16 17 18 19 20 21 entities were involved in investigating plaintiff's This investigation was referred to the Oregon State Police by the Yamhill County District Attorney's Office after receiving a request from the Wasco County District Attorney's Office for review. Since the initial investigative request from Yamhill County, Oregon Department of Justice [h]as received this case on referral from the Wasco County District Attorney. The case was originally investigated by the Hood River County Sheriff's Office and based on their investigation[,] additional follow up was requested to be completed by the Oregon State Police. 22 Pltf's Exh. 13 at p. 3. 23 Eiesland's May 6, 2009 "Notice of Charges" issued to Conover 24 25 26 27 28 the room, stands next to plaintiff at the reception desk, then passes by her. Any touching by Conover of plaintiff is partially obscured by other people. Contrary to plaintiff's assertion, however, the room does not appear to be in shock or quiet after Conover leaves. Rather, plaintiff remains talking with employees, eating and laughing. 9 - OPINION & ORDER 1 states that Conover was charged with violating Sheriff's Department 2 policy 3 plaintiff by subjecting her to unwanted physical touching in the 4 workplace 5 environment. 6 complaint by plaintiff, and that Eiesland had requested an outside 7 agency 8 investigation had concluded. Id. He sustained the allegation that 9 Conover touched Mendoza inappropriately, in violation of County A05.00 and and A05.01 thereby by potentially Pltf's Exh. 9. investigate the discriminating creating a against hostile work Afer reciting the facts of the matter, Eiesland states that the 10 policy. 11 that discipline up to and including termination is warranted and 12 thus, by policy, Conover was entitled to meet with Eiesland to 13 discuss the charges and to present any mitigating or extenuating 14 circumstances. 15 8, 2009. 16 Id. allegedly Eiesland then writes that it is his determination Id. He instructed Conover to meet with him on May Id. Also on May 6, 2009, plaintiff's attorney wrote a formal tort 17 claim notice to Eiesland. 18 addition to notifying Eiesland of her intent to file a civil 19 action, plaintiff's counsel notes that it was his understanding 20 that Conover had returned to his duties from administrative leave. 21 Id. at p. 2. 22 fact that Conover had been placed on administrative leave. 23 24 25 26 27 28 Exh. C to Eiesland Declr. There, in I see no other evidence in the record regarding the On May 8, 2009, Eiesland issued a formal letter of reprimand to Conover. Pltf's Exh. 10. In pertinent part, Eiesland wrote: After careful consideration it is my determination that just cause exists to support the disciplinary measure of placing an official Letter of Reprimand in your personnel file. I am also requiring you to attend and successfully complete a Sexual Harassment training approved by me as soon as possible, but in any case no later than six months from today's date. After you satisfactorily 10 - OPINION & ORDER 1 complete this course, and after one year of good conduct on your part, [this letter will be removed from your file] or [I reserve the right to place this letter in a sealed envelope and return it to your file. In that case, it will be opened only with your consent, or by court order, or if needed to defend Wasco County from legal action, or upon a finding that you have again violated policy.] 2 3 4 5 Id.4 6 Conover's conduct caused plaintiff to dread coming to work and 7 made her want to quit her job. Pltf's Depo. at p. 55; Pltf's 8 Affid. at ¶ 17. Conover's harassment was part of the reason she 9 eventually left her job with the Wasco County DA's Office. Pltf's 10 Depo. at pp. 6-7. Plaintiff now works for the City of The Dalles 11 as a department secretary. Pltf's Depo. at p. 4. She receives 12 benefits similar to those she received at Wasco County and earns a 13 higher rate of pay. Id. at p. 6. 14 B. Other Incidents Involving Conover 15 In a March 30, 2009 supplemental incident report prepared by 16 Oregon State Police officer Mitchell Meyer, Meyer reports that he 17 and Detective Kipp interviewed Deputy Birchfield who stated that 18 Conover had told him that he made a traffic stop on a vehicle 19 because the girl driving was "hot." Exh. 5 to Malmsheimer Declr. 20 at p. 3. 21 A different supplemental incident report completed by Kipp in 22 March 2009, contains a statement by Curt McConnell given during an 23 interview by Meyer and Kipp. Exh. 6 to Malmsheimer Declr. at p. 6. 24 At the time, McConnell had been a deputy sheriff in the Sheriff's 25 26 27 28 4 It looks as if Eiesland should have chosen one of the two options regarding the letter, but I quote it here exactly as it appears in the exhibit. 11 - OPINION & ORDER 1 Department for five years. Id. McConnell stated that he had 2 observed Conover come out of his office when attractive women come 3 to the Sheriff's Department, and go to the lobby. 4 noted that Conover had sometimes made inappropriate jokes in front 5 of mixed company that included women. Id. at p. 7. He Id. 6 Also in this incident report is a statement by Wasco County 7 Sheriff's Department Detective Sergeant Terry Scattergood, a thirty 8 year Sheriff's Department employee. 9 stated that in the past, Conover had made it clear to him that Id. at p. 2. Scattergood 10 Conover wanted to get plaintiff "in the sack." 11 Conover told Scattergood that he wanted to touch plaintiff's 12 breasts. 13 good for one thing and that's "fucking." 14 In Id. his Id. at p. 3. Conover also told Scattergood that women were only deposition, Conover Id. at p. 4. explained that when he was 15 appointed Chief Deputy in 2004, there was some resentment that 16 Eiesland had appointed him and at a staff meeting, Eiesland asked 17 if anyone had anything to say about the appointment. Conover Depo. 18 at p. 22. 19 sexual nature of Conover's conversations. 20 Conover received no training, discipline, or reprimand in response 21 to the complaint, and there was no investigation. In response, Sergeant Alan Wiebe complained about the Id. at pp. 23-24. Id. at p. 24. 22 Conover also testified in deposition that he once gave Deputy 23 DA Wolfe (a woman), a packet of penis-shaped breath mints as a 24 "joke" to break the tension surrounding the sex cases they were 25 working on together. 26 Id. at pp. 40-42. Eiesland himself told sexual jokes to Conover. Eiesland Depo. 27 at p. 21. 28 / / / 12 - OPINION & ORDER 1 STANDARDS 2 Summary judgment is appropriate if there is no genuine issue 3 of material fact and the moving party is entitled to judgment as a 4 matter of law. 5 initial responsibility of informing the court of the basis of its 6 motion, and identifying those portions of "'pleadings, depositions, 7 answers to interrogatories, and admissions on file, together with 8 the affidavits, if any,' which it believes demonstrate the absence 9 of a genuine issue of material fact." 10 Fed. R. Civ. P. 56(c). The moving party bears the Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). 11 "If the moving party meets its initial burden of showing 'the 12 absence of a material and triable issue of fact,' 'the burden then 13 moves to the opposing party, who must present significant probative 14 evidence tending to support its claim or defense.'" Intel Corp. v. 15 Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) 16 (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th 17 Cir. 1987)). 18 designate facts showing an issue for trial. 19 322-23. 20 The nonmoving party must go beyond the pleadings and Celotex, 477 U.S. at The substantive law governing a claim determines whether a 21 fact is material. 22 Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). All reasonable doubts as 23 to the existence of a genuine issue of fact must be resolved 24 against the moving party. 25 Radio, 475 U.S. 574, 587 (1986). 26 drawn from the facts in the light most favorable to the nonmoving 27 party. 28 T.W. Elec. Serv. v. Pacific Elec. Contractors Matsushita Elec. Indus. Co. v. Zenith The court should view inferences T.W. Elec. Serv., 809 F.2d at 630-31. If the factual context makes the nonmoving party's claim as to 13 - OPINION & ORDER 1 the existence of a material issue of fact implausible, that party 2 must come forward with more persuasive evidence to support his 3 claim than would otherwise be necessary. 4 Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990); 5 California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, 6 Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). 7 8 9 Id.; In re Agricultural DISCUSSION Plaintiff brings the following claims for relief: (1) three claims under Oregon Revised Statute § (O.R.S.) 659A.030, all 10 brought 11 environment based on sex; Count Two for disparate treatment based 12 on sex; and Count Three for retaliation for plaintiff's reports of 13 discrimination; (2) a section 1983 claim against Conover for 14 violating 15 Fourteenth Amendment; and (3) a section 1983 claim against Eiesland 16 for violating plaintiff's rights to free speech under the First 17 Amendment. 18 against Wasco plaintiff's County: rights Count to equal One for hostile protection under work the In the present motion, defendants move for partial summary 19 judgment as follows: (1) on the portions of plaintiff's state law 20 claims based on actions occurring more than 180 days prior to her 21 tort claim notice because they are time barred; (2) on the portion 22 of the section 1983 claim against Conover occurring more than two 23 years before the case was filed; and (3) on the sex harassment 24 hostile environment claims brought against Conover under O.R.S. 25 659A.030 and section 1983 because the alleged conduct was not 26 sufficiently severe and pervasive to constitute actionable sexual 27 harassment. 28 claims as well, at oral argument, defendants confirmed that their While the written motion appeared to be against other 14 - OPINION & ORDER 1 motion is limited to the sexual harassment portion of plaintiff's 2 claims and is not directed to any claim based on a disparate 3 treatment or retaliation theory. 4 I. Timeliness of Claims 5 A. State Law Claims 6 The notice provisions of the Oregon Tort Claims Act (OTCA) 7 apply to the state law claims in this case. 8 Portland, No. CV-02-980-JO, 2005 WL 708344, at *2 (D. Or. Mar. 28, 9 2005) ("Plaintiff's ORS Chapter 659A state law claims . . . all are 10 subject to the 180-day notice requirement of the Oregon Tort Claims 11 Act ('OTCA'), ORS 30.275(2)(b)") (citing Brinkley v. Oregon Health 12 Sci. Univ., 94 Or. App. 531, 536, 766 P.2d 1045 (1988) (state law 13 disability discrimination claim a "tort" subject to OTCA notice 14 requirement)). 15 Reyna v. City of The OTCA requires that notice of the claim be given to the 16 public body "within 180 days after the alleged loss or injury." 17 O.R.S. 18 plaintiff's state law sexual harassment claims are based on conduct 19 occurring before November 7, 2008, 180 days before the May 6, 2009 20 tort claim notice, they are time barred.5 30.275(2)(b). Defendants argue that to the extent 21 B. Section 1983 Claim 22 The statute of limitations for filing a section 1983 action is 23 24 25 26 27 28 5 In their written materials, defendants made the same argument as to the allegations supporting the retaliation claim, contending that any such allegations originating before May 1, 2009, 180 days before the October 28, 2009 retaliation tort claim notice, are time barred. In light of defendants' counsel's representation at oral argument that the present motion is limited to the sexual harassment allegations, I do not further consider the retaliation argument. 15 - OPINION & ORDER 1 determined by the forum state's statute of limitations for personal 2 injury actions. 3 Oregon, the relevant statute of limitations is two years. 4 12.110(1); Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 5 2002). 6 Wilson v. Garcia, 471 U.S. 261, 276 (1985). This case was filed on November 4, 2009. In O.R.S. Defendants argue 7 that any alleged incidents that occurred before November 4, 2007, 8 may not serve as the basis for a section 1983 claim. 9 C. Discussion 10 Plaintiff argues that the continuing violation theory applies 11 to both the state claims and the section 1983 claim, and thus, 12 Conover's entire course of conduct is actionable. 13 plaintiff. I agree 14 In a recent decision, Judge Papak explained that 15 with [t]he Supreme Court . . . has limited the reach of the continuing violations doctrine, holding that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002). A discrete act is an incident of discrimination, "such as termination, failure to promote, denial of transfer, or refusal to hire," that constitutes a separate, actionable "unlawful employment practice." Id. at 114. In contrast, the continuing violation doctrine applies to hostile work environment claims, which by their nature consist[] of multiple related actions that by themselves may not constitute discrimination. Id. at 122. . . . Oregon courts draw a similar distinction between discrete acts of discrimination and a systematic pattern of conduct. BoardMaster Corp. v. Jackson County, 224 Or. App. 533, 551, 198 P.3d 454 (2008); see also Davis v. Bostick, 282 Or. 667, 674, 580 P.2d 544 (1978) (where evidence showed that plaintiff was harmed by each individual alleged wrongful act, she was not "entitled to ride out the storm and lump sum her grievances."). 16 17 18 19 20 21 22 23 24 25 26 Arbigon v. Multnomah County, No. CV-09-311-PK, 2010 WL 2038839, at 27 *14 (D. Or. May 20, 2010) (finding race discrimination claim time 28 16 - OPINION & ORDER 1 barred to certain extent because it was based on series of discrete 2 adverse employment actions); see also Picouto v. Western Star Truck 3 Plant Portland LLC, No. CV-08-807-ST, 2010 WL 3607956, at *25 (D. 4 Or. 5 discrimination claim, discrete acts occurring more than one year 6 prior 7 discrimination, were time barred). 8 9 May 27, to In 2010) the (in filing Morgan, the of race, an Supreme national origin, administrative Court, as noted and agency by gender charge Judge of Papak, curtailed the use of the continuing violation theory in some 10 contexts. 11 distinction between discrimination and retaliation claims on the 12 one hand, and hostile environment claims on the other. 13 115. 14 discrete acts. Their very nature involves repeated conduct." Id. 15 "A hostile work environment claim is composed of a series of 16 separate acts that collectively constitute one 'unlawful employment 17 practice.'" 18 "encompasses a single unlawful employment practice," the employee 19 "need only file a charge within [the applicable limitations period] 20 of any act that is part of the hostile work environment." 21 117, 119. 22 In doing so, however, the Court made an important 536 U.S. at "Hostile environment claims are different in kind from As Id. at 117. Judge Stewart Because a hostile environment claim explained in a 2008 case, "a Id. at hostile 23 environment claim seems to be exactly the kind of claim which 24 recovery is for the cumulative effect of wrongful behavior." 25 Atwood v. Oregon Dep't of Transp., No. CV-06-1726-ST, 2008 WL 26 803020, 27 omitted). 28 part of the same unlawful employment practice, meaning actions at *13 (D. Or. Mar. 20, 2008) (internal quotation As long as the facts offered show that the actions are 17 - OPINION & ORDER 1 taken because of the fact that the plaintiff was a woman, or in 2 Judge Stewart's case was disabled, the continuing violation theory 3 recognized in Morgan, applies. Id. 4 Here, the continuing violation theory, even as curtailed by 5 Morgan, applies to plaintiff's sexual harassment claims and thus, 6 all of Conover's conduct toward her should be considered for 7 liability purposes on those claims. 8 the state O.R.S. 659A.030 sex harassment claim and to the section 9 1983 claim. The theory applies equally to See Gutowsky v. County of Placer, 108 F.3d 256, 259 10 (9th Cir. 1997) (continuing violation theory applied to section 11 1983 12 continuing violation theory to state statutory claim brought under 13 the OTCA). claim); Atwood, 2008 WL 803020, at *10-13 (applying 14 The alleged acts include ongoing sexual joking and banter, 15 Conover calling plaintiff "sweetie," telling plaintiff she "smelled 16 good" while sniffing the air, lingering near plaintiff's desk, 17 pressing up against her at the December 2006 potluck, watching her 18 at her desk on the surveillance camera, poking her in the ribs, 19 telling her he would be better if she sat "here" while tapping his 20 thigh, and rubbing his hands up her back and along her bra strap, 21 including the November 2008 incident for which he was disciplined. 22 In her deposition testimony, plaintiff expressly stated that 23 Conover's comments of calling her "sweetie" and telling her she 24 "smelled good" were "very frequent." 25 instances of running his finger up and down her back and poking her 26 were not frequent, but still occurred on a "number of occasions" 27 and made plaintiff uncomfortable. 28 escalation of the alleged conduct. 18 - OPINION & ORDER Pltf's's Depo. at p. 81. Id. The It appears to be an Plaintiff's affidavit provides 1 similar testimony. Pltf's Affid. at ¶¶ 3,4, 5. 2 I agree with plaintiff that these acts as alleged, are a 3 series of closely related occurrences, similar in nature, that 4 continued over an extended period of time, and which were directed 5 at plaintiff by the same person. 6 Morgan, the alleged facts establish a claim "composed of a series 7 of 8 employment practice.'" 9 produced by the series of ongoing, related acts committed by 10 acts that collectively Id. at 117. constitute one 'unlawful It is the cumulative harm Conover that constitutes the unlawful employment practice. 11 12 separate As the Supreme Court noted in I deny defendants' motion on the timeliness issue. II. Hostile Environment 13 Defendants' argument directed to the merits of the hostile 14 environment claims (Count One of the First Claim of Relief based on 15 O.R.S. 659A.030, and the section 1983 equal protection claim), is 16 premised on defendants prevailing on the timeliness issue. 17 is, defendants argue that the only actionable portion of the sexual 18 harassment claim is the November 12, 2008 allegation that Conover 19 inappropriately touched plaintiff in the front reception office of 20 the Sheriff's Department. 21 allegation is insufficient to establish a hostile work environment. 22 That Defendants contend that that single To survive summary judgment on a hostile work environment 23 claim, plaintiff must "establish a pattern of ongoing and 24 persistent harassment severe enough to alter the conditions of 25 employment." 26 864, 871 27 harassment "must be both objectively and subjectively offensive, 28 one that a reasonable person would find hostile or abusive, and one Nichols v. Azteca Restaurant Enters, Inc., 256 F.3d (9th Cir. 19 - OPINION & ORDER 2001) (internal quotation omitted). The 1 that the victim in fact did perceive to be so." 2 of Boca Raton, 524 U.S. 775, 787 (1998). 3 constitute discrimination because of sex. 4 Faragher v. City Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The conduct must Oncale v. Sundowner 5 When determining whether a workplace is hostile, the court 6 considers all of the circumstances, including "the frequency of the 7 discriminatory conduct; its severity; whether it is physically 8 threatening or humiliating, or a mere offensive utterance; and 9 whether it unreasonably interferes with an employee's work 10 performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 11 (1993). "[S]imple 12 incidents (unless 13 discriminatory changes in the terms and conditions of employment." 14 Nichols, 256 F.3d at 872 (internal quotation omitted). 15 "no single factor is required,” Harris, 510 U.S. at 23, and "[t]he 16 required level of severity or seriousness varies inversely with the 17 pervasiveness or frequency of the conduct." 18 872 (internal quotation omitted). teasing, extremely offhand serious) comments, will and not isolated amount to However, Nichols, 256 F.3d at 19 "A working environment is abusive if hostile conduct pollutes 20 the victim's workplace, making it more difficult for her to do her 21 job, to take pride in her work, and to desire to stay on in her 22 position." 23 2000) (internal quotation omitted). "Offensive comments do not all 24 need to be made directly to an employee for a work environment to 25 be considered hostile." Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. Id.6 26 27 28 6 Although these standards have been developed in the Title VII context, they apply to the O.R.S. 659A.030 and section 1983 claims. Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 20 - OPINION & ORDER 1 Given my ruling on the timeliness issue, I reject defendants' 2 argument that the only conduct relevant to the merits of the sexual 3 harassment claim is the November 2008 incident. 4 Conover's conduct directed toward plaintiff is properly considered 5 for liability purposes. 6 here is sufficient to survive a summary judgment motion as to the 7 hostile environment claim. Rather, all of I agree with plaintiff that the evidence 8 As plaintiff notes, over a period of two years, Conover 9 frequently called her "sweetie," and frequently told her she 10 "smelled good" while sniffing the air. In the context of Conover's 11 other actions, these terms took on a demeaning sexual connotation. 12 Although Conover denies that many of his comments and actions were 13 intended as sexual conduct, his actions speak for themselves and a 14 reasonable 15 motivated by plaintiff's gender. 16 lawyer in the District Attorney's Office of penis shaped breath jury could conclude that much of his conduct was Notably, his gift to a female 17 18 19 20 21 22 23 24 25 26 27 28 741, 754 (9th Cir. 2001) (noting summary judgment decisions regarding section 1983 claims are "remarkably similar" to their Title VII counterparts); Lowe v. City of Monrovia, 775 F.2d 998, 1011 (9th Cir. 1985) (holding that plaintiff had established a triable issue under Title VII, and therefore also established a § 1983 issue); Jaurrieta v. Portland Pub. Schs., No. CV-00-1238-ST, 2001 WL 34041143, at *7 and n.12 (D. Or. Dec. 14, 2001) (analyzing O.R.S. 659.030 hostile environment claim under Title VII standards and noting that Oregon courts generally consider and adopt federal case law regarding Title VII), adopted by Judge Brown (D. Or. Feb. 7, 2002); Williams v. Multnomah Educ. Serv. Dist., No. CV-97-1197-ST, 1999 WL 454633, at *4 (D. Or. Apr. 14, 1999) ("the status of the § 1983 equal protection clause claim generally depends on the outcome of the title VII analysis."); Logan v. West Coast Benson Hotel, 981 F. Supp. 1301, 1319 (D. Or. 1997) (in analyzing Oregon discrimination claims under Chapter 659, Oregon courts have looked to Title VII cases for guidance because Oregon statutes are "wholly integrated and related" to Title VII). 21 - OPINION & ORDER 1 mints, while unknown to plaintiff, bears on the credibility of 2 Conover's testimony that his conduct toward plaintiff was not 3 sexual. 4 plaintiff's reaction to Conover's statements was influenced by 5 having heard that Conover was a "predator." 6 Other Additionally, non-physical a jury could harassment easily included determine Conover that watching 7 plaintiff on the security camera, the come-on when Conover tapped 8 his thigh and said he would be better if plaintiff were sitting 9 there, and lingering at plaintiff's desk while she worked. In 10 addition, Conover occasionally poked and touched her. Then there 11 are the two incidents of more offensive touching first in December 12 2006 when Conover pressed up against plaintiff from behind while 13 holding her shoulder and waist and telling her that she could wash 14 the dishes at his house, and then in November 2008 when Conover, 15 who had already allegedly occasionally been rubbing his hand along 16 her bra strap, allegedly rubbed his hands up plaintiff's back along 17 her bra strap, and back down again, this time in the front 18 reception area of the Sheriff's Department. 19 At a minimum, this pattern of conduct creates a jury question 20 as to whether a reasonable woman would have felt that her work 21 environment was hostile. The evidence reveals a combination of (1) 22 what could be viewed as somewhat innocuous, but ongoing, behavior 23 such as the "sweetie" and "smell good" comments and the infrequent, 24 but objectionable, poking in the ribs or back, with (2) more 25 predatory behavior of watching her on the surveillance camera, 26 lingering at her desk, and the December 2006 potluck incident. 27 When this conduct is considered along with physical touching that 28 escalated beyond the poking to rubbing hands up and down her back 22 - OPINION & ORDER 1 and along her bra, the record shows both frequent and serious 2 conduct 3 harassment severe enough to alter the conditions of employment." 4 The evidence further establishes harassment which a reasonable 5 person would have found hostile and abusive, or at least raises a 6 jury question on that issue. 7 establishing a "pattern of ongoing and persistent The evidence also shows that plaintiff subjectively perceived 8 the conduct as hostile and abusive. The evidence shows that the 9 harassment made plaintiff's job more difficult. E.g., Pltf's 10 Affid. at ¶ 14 (knowing that Conover was watching her on the 11 surveillance camera made it made it difficult for her to focus on 12 her work, wondering if he was watching her on the video camera); 13 Pltf's Affid. at ¶ 11 (Conover's lingering and lurking at her desk 14 made it difficult for her to concentrate on her work and made her 15 uncomfortable to even answer the phone); Pltf's Depo. at pp. 82-83 16 (plaintiff was scared of Conover after the December 2006 potluck 17 incident, 18 uncomfortable); Pltf's Affid. at ¶¶ 5, 20 (same); Pltf's Affid. at 19 ¶ 20 (Conover's treatment changed the way plaintiff thought about 20 her 21 questioning if she could trust law enforcement officers; feared 22 being alone in an elevator or office because of anticipating that 23 Conover 24 inappropriate; dreaded going to work; felt stressed and lost sleep; 25 was reduced to tears); Pltf's Depo. at p. 55 (things got to the 26 point where she wanted to quit her job). job feared from would being loving alone working "suddenly with with appear" him, the and was embarrassed Sheriff's say or Deputies do and to something 27 Defendants point to evidence in the record which they contend 28 shows that plaintiff was not subjectively offended by Conover's 23 - OPINION & ORDER 1 actions. For example, defendants note that plaintiff laughed or 2 chuckled in response to the incident when Conover patted his thigh. 3 Defendants also point to the video of the November 2008 incident 4 which shows plaintiff, and others, remaining in the Sheriff's 5 Department reception area and talking following Conover's alleged 6 rubbing of her back and bra strap. 7 motion, the evidence is viewed in the light most favorable to the 8 non-moving party and plaintiff's affidavit and deposition testimony 9 regarding the effect of Conover's actions on her must be accepted 10 as true. Moreover, plaintiff describes her reaction to the "thigh" 11 incident as a nervous chuckle. 12 emotional 13 evaluate plaintiff's response to these incidents to determine if 14 she was offended or not. responses to But, on a summary judgment Given the range of possible human uncomfortable events, the jury should 15 The same is true of plaintiff having herself occasionally 16 engaged in office-based sexual joking and her having raised her 17 shirt to Eiesland. 18 in such behavior may not be offended by actions such as those 19 perpetrated by Conover. An equally plausible argument may be made, 20 however, that being specifically targeted by a high ranking person 21 in 22 inappropriate verbal conduct and sexualized touching is behavior of 23 a completely different kind which may in fact be offensive to a 24 person who is otherwise comfortable participating in certain other 25 activities of a sexual nature. 26 inferences may be drawn from these facts, the determination is 27 properly left to the jury. I cannot say that all jurors would 28 always plaintiff's the An argument can be made that a person engaging Sheriff's find that a 24 - OPINION & ORDER Department female for repeated offensive and Because differing reasonable one-time inappropriate 1 barring of her chest briefly to one employee means she welcomes all 2 manner of alleged sexual harassment from a different employee. 3 Defendants argue that because Conover was not a supervisor 4 with immediate or successively higher authority over plaintiff, he 5 cannot subject the County to vicarious liability. 6 Serv. Corp., 360 F.3d 1103, 1119 (9th Cir. 2004) ("An employer's 7 liability for harassing conduct is evaluated differently when the 8 harasser is a supervisor as opposed to a coworker. . . . An 9 employer is vicariously liable for a hostile environment created by 10 a supervisor, although such liability is subject to an affirmative 11 defense. . . . If, however, the harasser is merely a coworker, the 12 plaintiff must prove that the employer knew or should have known of 13 the harassment but did not take adequate steps to address it.") 14 (internal quotation and citations omitted). 15 McGinest v. GTE The section 1983 claim is brought against Conover directly, so 16 the issue of the County's liability relates only to plaintiff's 17 O.R.S. 659A.030 claims. 18 applied the federal standards on this issue to state law claims 19 under O.R.S. 659A.030. 20 1277, 21 measures in context of O.R.S. 659A.030 claim); Delima v. Home Depot 22 U.S.A., Inc., 616 F. Supp. 2d 1055, 1090 (D. Or. 2008) (analyzing 23 whether employer took care "to prevent and promptly correct any 24 sexually harassing behavior" in context of Title VII and O.R.S. 25 659A.030 claims); see also Harris v. Pameco Corp., 170 Or. App. 26 164, 177-78, 12 P.3d 524, 533 (2000) (discussing remedial measures 27 taken by employer in context of analyzing plaintiff's O.R.S. 28 659.030 claim); Fred Meyer, Inc. v. Bureau of Labor & Industries, 1288-91 (D. 25 - OPINION & ORDER Or. Two recent decisions from this Court have Dawson v. Entek Intern., 662 F. Supp. 2d 2009) (discussing employer's remedial 1 152 Or. App. 302, 311, 954 P.2d 804, 809 (1998) (same). 2 Although the record is a bit unclear as to whether plaintiff 3 considers Conover to be equivalent to a co-worker or had some 4 supervisory authority over her, plaintiff does not appear to argue 5 in response to this motion that the County is vicariously liable 6 for Conover's conduct because he is a "supervisor." 7 issue presented here is the liability of the County for acts 8 performed by a co-worker. Thus, the 9 "An employer is liable for the hostile work environment 10 created by a co-worker unless the employer takes adequate remedial 11 measures in order to avoid liability." 12 (internal quotation, ellipsis, and brackets omitted). In the Ninth 13 Circuit, 14 Nichols, 256 F.3d at 875 remedies for sexual harassment should be reasonably calculated to end the harassment. . . . The reasonableness of the remedy depends on its ability to: (1) stop harassment by the person who engaged in harassment; and (2) persuade potential harassers to refrain from unlawful conduct. . . . When the employer undertakes no remedy, or where the remedy does not end the current harassment and deter future harassment, liability attaches for both the past harassment and any future harassment. 15 16 17 18 19 Id. at 875-76 (internal quotations, citations, and brackets 20 omitted). 21 Defendants note that plaintiff complained a single time to 22 Eiesland in December 20067, and indicated to him she wanted the 23 matter to be handled quietly. Defendants argue that Eiesland 24 25 26 27 28 7 As indicated above, Eiesland states that plaintiff did not report the December 2006 incident to him, but instead, reported the "thigh" incident. For the purposes of this motion, defendants assume that plaintiff's report followed the December 2006 incident and they make their argument based on that assumption. 26 - OPINION & ORDER 1 handled the matter appropriately by holding a meeting on sexual 2 harassment for his employees. Then, defendants note that plaintiff 3 did not formally complain of the harassment or otherwise provide 4 the County with any indication of the alleged harassment until she 5 filed a tort claim in May 2009, after which the County immediately 6 responded to her allegations once it became aware of them. 7 According to plaintiff's description of her report of the 8 December 9 directly to Conover, Eiesland said that would "handle it," and 10 would speak to Conover, but then, Eiesland did not follow through 11 with this commitment. 12 told them to watch what they were saying because some people could 13 become offended. 14 2006 Plaintiff potluck incident, she asked Eiesland to speak Rather, he brought his office together and Pltf's Affid. at ¶ 8; Pltf's Depo. at pp. 22-23. notes that Eiesland's handling of plaintiff's 15 complaint was inconsistent with plaintiff's wishes, and, was a 16 violation of the Sheriff's Department policy regarding how to 17 handle harassment allegations because that policy requires the 18 Sheriff to "speak with the alleged harasser stating the nature of 19 the complaint," and that "in all instances," the Sheriff shall 20 "contact the . . . complainant prior to implementing a course of 21 action . . . to ensure that the intended course of action is 22 understood and acceptable." Exh. 8 to Malmsheimer Declr. at pp. 2, 23 3. 24 Additionally, given that the harassment by Conover continued 25 after Eiesland addressed 26 plaintiff argues that the attempt to stop the harassment was 27 insufficient as a matter of law. 28 1997 case, employers "send the wrong message to potential harassers 27 - OPINION & ORDER the Sheriff's Department generally, As the Ninth Circuit noted in a 1 when they do not discipline employees for sexual harassment" and 2 the failure to "take even the mildest form of disciplinary action 3 renders any claim for remedial action inadequate." 4 United States Dep't of Air Force, 109 F.3d 1475, 1483 (9th Cir. 5 1997) (internal quotations omitted). Yamaguichi v. 6 Finally, plaintiff points to the facts showing that the County 7 was aware of Conover's "proclivities towards inappropriate sexual 8 conduct in the workplace." 9 Conover's conducting traffic stops on "hot" women, that upon to Chief Deputy, Wiebe Plaintiff notes 10 Conover's 11 Conover's sexual conversations, and that Conover was known to be a 12 "predator." 13 Eiesland contributed to the very atmosphere that permitted the 14 harassment of plaintiff to occur in the first place. 15 admitted to engaging in sexual joking with Conover and knew that 16 sexual banter was a routine feature in the office. 17 promotion Pltf's Mem. at p. 22. complained about And, plaintiff further notes that the County and Eiesland The record creates an issue of fact as to whether the County's 18 response to plaintiff's complaint was adequate. 19 evidence of Conover's reputation or Eiesland himself engaging in 20 sexual jokes and tolerating an office with sexual banter, the fact 21 that Eiesland did not speak directly to Conover when plaintiff 22 complained to him, the fact that his failure to do so violated 23 County policy, and the fact that the harassing conduct did not 24 stop, are enough to create an issue of fact as to whether the 25 County's remedies were reasonably calculated to end the harassment 26 and stop it from occurring in the future. 27 28 Even without the I deny defendants' motion for summary judgment on the sexual harassment claims. 28 - OPINION & ORDER 1 III. 2 Evidentiary Objections In their reply memorandum, defendant raise several evidentiary 3 objections. 4 confusing for two reasons. 5 assertions contained in plaintiff's concise statement of fact, 6 which are not evidence. 7 category or type of objection to, for example, statements contained 8 within reports, without citing to each statement and explaining the 9 objection for that particular statement. Defendants' failure to do 10 Defendants' presentation of its objections is First, defendants raise objections to Second, defendants repeatedly raise a this has created an unnecessary burden for the court. 11 As to the hearsay objections, any statement by Conover is 12 admissible under Federal Rule of Evidence 801(d)(2)(A), as a 13 statement by a party-opponent. 14 themselves 15 regularly conducted activity, or possibly Rule 803(8), for public 16 records and reports. 17 Sheriff's Department employees are likely admissible under Rule 18 801(d)(2)(D), as statements made by a party's agent or servant 19 concerning a matter within the scope of the agency or employment, 20 made during the existence of the relationship. 21 are admissible The police investigation reports under Rule 803(6), for records of Additionally, statements made by other Thus, the following statements noted in this Opinion, and 22 relied on in my discussion, are not barred by the hearsay rule: 23 (1) 24 of the sexual nature of Conover's conversations; (2) Birchfield's 25 statement in the March 30, 2009 Oregon State Police incident report 26 that Conover told him that he made a traffic stop on a vehicle 27 because the girl driving was "hot"; (3) McConnell's statement in 28 another Oregon State Police incident report that he had observed Wiebe's 2004 complaint regarding Conover's promotion because 29 - OPINION & ORDER 1 Conover come out of his office and go to the lobby when attractive 2 women came to the Sheriff's Department; and (4) Scattergood's 3 statement in the March 2009 Oregon State Police incident report 4 that Conover told Scattergood he wanted to touch plaintiff's 5 breasts, that women were only good for "fucking," and that he 6 wanted to get plaintiff "in the sack". 7 Additionally, some of the challenged statements are not 8 offered for the truth of the matter asserted, and thus, are not 9 hearsay for that reason as well. For example, Wiebe's statement 10 expressing concern over Conover's promotion is not offered for the 11 truth of the matter asserted, but to show that the County had 12 knowledge of Conover's alleged behavior. 13 by the DA Office employee to plaintiff that Conover was a predator 14 is not offered to prove the truth of the matter, but to show the 15 effect of that statement on plaintiff and how she subsequently 16 viewed much of Conover's conduct. 17 Similarly, the statement Defendants also argue that many of these statements are not 18 relevant and are inadmissible on that basis. 19 relevant to the County's knowledge that Conover may have engaged in 20 problematic behavior. 21 Plaintiff began working for the County in August 2004. 22 timing of Wiebe's statement shows that the County knew of a 23 potential 24 complained in December 2006 about the potluck incident. 25 The issue other with Wiebe made the statement sometime in 2004. Conover's statements because Wiebe's statement is the are also before relevant 28 sexualized creates several County's Department employees offering specific statements about Conover's 30 - OPINION & ORDER are the 27 statements there to plaintiff knowledge and that even 26 conduct fact conduct Thus, the an Sheriff's inference that 1 Conover's actions permeated the Sheriff's Department, putting the 2 County on notice that Conover's behavior may be problematic. 3 Finally, Conover's 4 obviously made while plaintiff was employed by the County, are 5 relevant to the intent behind Conover's conduct toward plaintiff. 6 I agree with defendants that because these statements were not 7 directed at plaintiff, and there is no evidence that she was made 8 aware of them, they are not relevant to the determination of 9 plaintiff's subjective perception of harassment. statements to Scattergood about plaintiff, But, they are 10 relevant to assessing the County's knowledge and the reasonableness 11 of its actions. 12 assessment of Conover's behavior. 13 actions toward plaintiff were sexual in nature, these statements 14 are relevant to the jury's determination of whether a reasonable 15 woman would have perceived his actions as offensive because they 16 tend to show that Conover's conduct was often sexualized. As noted 17 above, this is also why the evidence that Conover gave Wolfe penis 18 shaped breath mints is relevant. 19 Defendants Finally, they are relevant to the objective further Given Conover's denial that his challenge the basis for plaintiff's 20 statements regarding Conover's presence at plaintiff's desk in the 21 reception area of the DA's Office. 22 plaintiff describes Conover's actions, but she relates no out of 23 court statements made by either Conover or herself. 24 describes, based on her personal knowledge, that he "hung out" at 25 her office and made her uncomfortable at times. 26 66. 27 stayed for long periods of time, not conversing, but just watching 28 her. First, in her deposition, Rather, she Pltf's Depo. at p. She further describes that she became uncomfortable when he Id. This testimony presents no hearsay issue and it is 31 - OPINION & ORDER 1 obviously relevant. 2 Next, in her affidavit, she describes how Conover's presence 3 at her desk became more frequent after plaintiff separated from her 4 husband. 5 lurk around her work area and pretend he was reading a newspaper, 6 but she could tell he was watching her. 7 descriptions of events based on plaintiff's personal observation of 8 them. 9 Pltf's Affid. at ¶ 11. She recites that Conover would Id. These statements are Defendants specifically object to plaintiff's statements that 10 Conover 11 frequenting 12 plaintiff's knowledge regarding whether Conover had a work purpose 13 for being in the area of plaintiff's desk is not clear on the 14 record, 15 plaintiff's. 16 Office employees would "run interference" for her when Conover 17 stayed at her desk for too long because the basis of her knowledge 18 of the motivation of those employees is also not clear in the 19 record. 20 had I no Sheriff's plaintiff's do not Department work rely on business area. these Because particular purpose the while basis statements of of I also do not rely on her statements that other DA Additionally, defendants statements challenge regarding the Conover admissibility watching her on of 21 plaintiff's the 22 surveillance camera. 23 that she was being watched, such statements are not hearsay because 24 they are offered for the purpose of showing plaintiff's state of 25 mind, not the truth of the matter asserted. 26 states that Conover himself made statements that he was watching 27 her on the camera, and he called her to tell her he liked what she 28 was wearing. To the extent other employees told plaintiff Moreover, plaintiff As with other statements by Conover, these are not 32 - OPINION & ORDER 1 2 hearsay under Rule 801(d)(2)(A). Finally, defendants argue that certain statements in 3 plaintiff's affidavit must be disregarded because they conflict 4 with her deposition testimony. 5 argument that plaintiff's affidavit contains "multiple self-serving 6 statements" 7 described in her deposition testimony." Defts' Reply Mem. at p. 4. 8 9 10 11 which "contradict Defendants offer a generalized and exaggerate the events she But, the only specific challenge defendants raise is to the following: In the spring of 2008, Chief Deputy Conover began to start rubbing his fingers up and down Ms. Mendoza's back over her bra strap. Mendoza Aff., ¶ 13; Mendoza Dep. at 80-83. 12 Pltf's Supp'l CSF at ¶ 6. 13 Defendants raise an objection to a factual assertion, which, 14 as noted above, is not evidence. I assume that defendants intended 15 to object to paragraph 13 of plaintiff's affidavit because it 16 allegedly contradicts her deposition testimony on this issue. 17 The relevant portion of the affidavit states: 18 19 20 21 22 During this time, in the Spring of 2008, Chief Deputy Conover's physical conduct towards me began to escalate. Chief Deputy Conover started rubbing his fingers up and down my back over my bra strap. This occurred two or three times before the final incident in November of 2008. Pltf's Affid. at ¶ 13. 23 The cited deposition testimony states: 24 26 Q: . . . you also described two incidents of touching, the two that I just mentioned, both the potluck and the front desk. Were there any other incidents where Mr. Conover touched you physically in a way that made you feel uncomfortable? 27 A: No. 28 Q: Did he ever run his finger up and down your back or 25 33 - OPINION & ORDER 1 anything like that? 2 A: Yes. 3 Q: Or poke you? 4 A: Yes. 5 Q: And did those instances make you feel uncomfortable? 6 A: Yes. 7 Q: And how frequently did that occur? 8 A: It wasn't frequent. 9 Q: Can you estimate the number of times that he did? 10 A: I don't' know. 11 Q: Fair enough. And would that have occurred after the potluck incident? I don't' know. 12 A: Yes. 13 14 Q: So between the potluck incident and the incident at the front desk – 15 A: 16 Q: – there were a number of occasions where he touched you and made you uncomfortable? Yes. 17 A: Yes. 18 Pltf's Depo. at pp. 80-81. 19 An issue of fact cannot be created by an affidavit that 20 contradicts prior deposition testimony. Radobenko v. Automated 21 Equipment Corp., 520 F.2d 540, 543-44 (9th Cir. 1975). The Ninth 22 Circuit has made clear, however, that 23 24 25 26 27 28 The . . . Radobenko rule does not automatically dispose of every case in which a contradictory affidavit is introduced to explain portion of earlier deposition testimony. Rather, the Radobenko court was concerned with 'sham' testimony that flatly contradicts earlier testimony in an attempt to 'create' an issue of fact and avoid summary judgment. Therefore, before applying the Radobenko sanction, the district court must make a factual determination that the contradiction was actually a 'sham.' 34 - OPINION & ORDER 1 Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266-67 (9th Cir. 2 1991). 3 affidavit is a "sham," there is no material inconsistency between 4 plaintiff's affidavit and her deposition testimony. 5 objection is unwarranted. 6 7 Here, not only is there no basis for finding that the Any other objections by defendants are moot as I have not relied on the evidence in resolving the motion. 8 9 10 11 Defendants' CONCLUSION Defendants' motion for partial summary judgment [27] is denied. IT IS SO ORDERED. 12 Dated this 8th day of November , 2010. 13 14 15 /s/ Dennis James Hubel Dennis James Hubel United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 35 - OPINION & ORDER
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