Opinion
6:21-cv-1709-MK
09-22-2022
AMANDA MCINTYRE, Plaintiff, v. CITY OF SPRINGFIELD - SPRINGFIELD POLICE DEPARTMENT, an Oregon municipal agency; SPRINGFIELD POLICE ASSOCIATION; RICHARD LEWIS; ROBERT WEAVER; THOMAS RAPPE; and PATRICIA PERLOW, Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
Plaintiff Amanda McIntyre brought this lawsuit against Defendant Springfield City Springfield Police Department (“SPD”), the Springfield Police Association (the “Union”), SPD Police Chief Richard Lewis, Lieutenant (“Lt.”) Thomas Rappe, Detective (“Det.”) Robert Weaver, and Lane County District Attorney Patricia Perlow (“DA Perlow”) alleging violations of Title VII, 42 U.S.C. § 2000e and its state law counterpart Or. Rev. Stat. (“ORS”) § 659A.030; Oregon Public Accommodation Act (“OPAA”), ORS § 659A.403; and the United States Constitution. See generally Compl., ECF No. 1.
Defendant Perlow has moved for summary judgment, which Plaintiff timely opposed. See Perlow Mot. Summ. J., ECF No. 12 (“Perlow Mot.”); Pl.'s Opp'n Perlow Mot. Summ. J., ECF No. 18 (“Perlow Opp'n”); see also Perlow Reply Mot. Summ. J. (“Perlow Reply”). SPD, and Defendants Rappe and Lewis (collectively the “City Defendants”) have moved to dismiss, which Plaintiff also timely opposed. See Defs.' City of Springfield-Springfield Police Department, Thomas Rappe, and Richarard Lewis' Mot. Dismiss, ECF No. 23 (“City Mot.”); Pl.'s Resp. Police Dept. Defs.' Rule 12 Mots., ECF No. 24 (“City Opp'n”); see also Defs. City of Springfield-Springfield Police Department, Thomas Rappe, and Richarard Lewis', ECF No. 25 (“City Reply”). The Court heard oral argument in April 2022. See ECF No. 29. For the reasons that follow, Defendant Perlow's motion for summary judgment should be GRANTED; the City Defendants motion to dismiss should GRANTED in part and DENIED in part, and as indicated below with leave to amend.
BACKGROUND
Plaintiff was employed by SPD from August 31 to December 2, 2020. Compl. ¶ 8, ECF No. 1. During that time, Defendant Richard Lewis served as the Chief of SPD. Id. ¶10. Defendant Thomas Rappe served as a Lieutenant. Id. ¶ 11. And Defendant Robert Weaver served as a Detective. Id. ¶ 12. DA Perlow is the elected District Attorney for Lane County. Id. ¶ 13.
In April 2020, Plaintiff applied to become a police officer with SPD. Id. ¶ 14. Plaintiff was the only female recruit in her training class. Id. ¶ 7. SPD's leadership at the time consisted entirely of male officers. Id. After she began working, officers told Plaintiff: “You have to fit the mold of a Springfield Police Officer and if you don't you won't make it.” Id. ¶ 16.
On September 20, 2020, Detective Weaver invited Plaintiff to his home for special firearms training. Id. ¶ 17. After the training, Weaver initiated sex with Plaintiff. Id. Later that evening, Weaver texted Plaintiff: “I'm not your superior! I'm just a coworker.” Id. Four days later, Plaintiff told Weaver she did not want to have sex again. Id. ¶ 18.
In October 2020, Wendy Polen, the assistant to Chief Lewis, told Plaintiff: “You're too flirtatious. You should tone it down. Don't talk to people unless they talk to you first.” Id. ¶ 19. Plaintiff did not hear Polen make similar comments to male officers. Id. That same month, Sergeant (“Sgt.”) Dave Grice told Plaintiff: “Fighting is a big deal, and women have to get in a bigger fight than men to prove to their fellow officers they can be trusted when it comes to having backup.” Id. 20.
On October 10, Plaintiff suffered an injury on the job and her male supervisor, Officer Bronson Durrant, took her to receive medical care. Id. ¶ 22. At the emergency room, Officer Durrant refused to leave the triage room while the nurse asked Plaintiff personal medical questions. Id. Plaintiff also generally alleges that Officer Durrant treated her differently than her male counterparts. Id.
On November 6, Plaintiff's training group had Emergency Vehicle Operations Course Training. Id. ¶ 23. At lunch, one of the older male training officers ignored Plaintiff, but interacted with Plaintiff's male counterparts. Id. Later that day, another officer told Plaintiff that the older training officer was “known for being a misogynistic jerk.” Id.
On November 14, another officer told Plaintiff that Det. Weaver had bragged about having sex with her, which caused Plaintiff to feel humiliated and concerned for her reputation within the department. Id. ¶ 23.
On November 18, Plaintiff's supervising watch commander, Sgt. Kirkpatrick, took issue with Plaintiff's “lack of force” during an altercation. Id. ¶ 24. As a result, Plaintiff sought out Sgt. Grice for advice, who told her she had acted in accordance with her training and experience during the altercation. Id. Later that day, Lt. George Crolly called Plaintiff and told her that he believed she was in a “toxic learning environment” and that she would be placed with a female training officer for the remainder of her training. Id. ¶ 25.
On November 20 and 23, Plaintiff and Sgt. Grice had sex. Id. ¶ 26. Sgt. Grice explicitly told Plaintiff that they were not in a relationship and that he did not want to be in a relationship. Id. He later texted Plaintiff: “I just need to know that it never gets out. Ever. I'm worried I just threw my credibility, career and ethics out the window.” Id.
SPD has a policy that defines “Workplace Romance” as follows:
A relationship that occurs between two members of an organization where sexual attraction is present, affection is communicated, and both members recognize the relationship to be something more than just professional and platonic.Id. ¶ 27. SPD policy also requires the supervising employee to report the “workplace romance.” Id. Neither Defendant Weaver nor Sgt. Grice reported their sexual encounters with Plaintiff. Id. ¶ 28.
On November 24, an SPD officer observed Plaintiff's car parked at Sgt. Grice's home and called Sgt. Kirkpatrick, Plaintiff's supervising sergeant. Id. ¶ 29. Sgt. Kirkpatrick drove to Sgt. Grice's home and observed the vehicle. Id. The next day, Lt. Rappe notified Plaintiff that she was “under investigation” for having an “inappropriate relationship” with Sgt. Grice. Id. ¶ 30. Plaintiff told Rappe that she did “not have a relationship with Sgt. Grice.” Id.
On November 26, Plaintiff asked her training supervisor whether there was any policy that would prohibit officers from having sexual contact. Id. ¶ 31. Plaintiff went on to explain that she and Sgt. Grice had sex. Id. The training supervisor said she did not see any reason the contact would be an issue because Sgt. Grice was not Plaintiff's direct supervisor. Id.
On November 27, Lt. Rappe, Lt. George Crolly, and Officer Robert Conrad, who served as the President of the Union, interrogated Plaintiff in a room with door closed about her off-duty sexual conduct. Id. ¶ 32-33. Lt. Rappe specifically asked Plaintiff about her sexual interactions with Sgt. Grice and accused Plaintiff of being sexually “aggressive.” Id. ¶ 33. Lt. Rappe accused Plaintiff of untruthfulness because she did not agree that she was in an “inappropriate relationship” with Sgt. Grice. Id. ¶ 34
SPD's General Order 26.1.1 XII(10), defines “Truthfulness” as follows:
Truthfulness: Members shall truthfully answer all questions from persons of higher rank which are specifically directed and narrowly related to the scope of employment and operations of the Department.Id. ¶ 34. At the time of this investigation interview, Plaintiff alleges that all three individuals had seen nude photos of Plaintiff. Id. ¶ 32.
Lt. Rappe, who was serving as acting-Police Chief, gave Plaintiff a “Memorandum,” dated November 27, 2020, that stated: “This memorandum is to advise you that you are the subject of an investigation for an allegation of misconduct pertaining to a relationship with a male supervisor.” Id. ¶ 35. He suspended Plaintiff from duty as of November 30. Id.
SPD did not identify any specific rule, policy, or other regulation that prohibited the sexual contact between her and Sgt. Grice. Id. ¶ 36.
On December 2, Chief Lewis told Plaintiff that she had been terminated for saying, “I do not have a relationship with Sgt. Dave Grice.” Id. ¶ 37. Later that night, Plaintiff and Sgt. Grice spoke about the differences between their respective investigations. Id. ¶ 38. For example, in Sgt. Grice's investigation, the Lieutenants immediately seized his phone and reviewed text messages and photos Grice and Plaintiff had exchanged. Id. Further, SPD never asked Grice whether he was in a “relationship” with Plaintiff. Id.
On December 7, Chief Lewis issued a notice of separation regarding Plaintiff's employment to the Oregon Department of Public Safety Standards and Training. Id. ¶ 39. In response to the question: “Was the separation the result of (even in part) an active or pending investigation being conducted by your agency or another public agency into allegations of misconduct involving the separated individual?” Lewis answered “No.” Id. Lewis wrote the following as the reason for Plaintiff's separation: “McIntyre failed to candidly answer a superior officer's question regarding non-work related activity.” Id.
After her termination, another officer informed Plaintiff that other officers at SPD referred to her as the “bicycle recruit,” which Plaintiff alleges is a sexually derogatory statement implying that officers could “take a ride” on her. Id. ¶ 40. The officer also told Plaintiff that male police officers are allowed to be sexually active, but that female officers have to be “pure.” Id.
In early January 2021, another officer informed Plaintiff that a detective with Defendant SPD had created and disseminated a card around the precinct describing Sgt. Grice and Det. Weaver as “Eskimo brothers,” which Plaintiff alleges is a term referring to two men who have had sex with the same woman. Id. ¶ 41. This caused Plaintiff to feel humiliated and degraded. Id.
Also in early January 2021, another officer informed Plaintiff that Det. Weaver had shown sexually explicit photos of her to officers and staff within the department; specifically, to Lt. Crolly and Officer Conrad, who had participated in the November 27 investigation interview. Id. ¶ 42. Weaver did this after Plaintiff said she would no longer have sex with him. Id.
Plaintiff alleges that she feared for her life because “if she is in danger and needs police assistance, she may not be able to call Defendant SPD to respond.” Id. ¶ 52.
On February 18, another officer informed Plaintiff that Det. Weaver had created a fake phone account, represented himself as Plaintiff, and texted another officer a nude photo of her torso. Id. ¶ 44. SPD has not disciplined Weaver for such conduct. Id. The Police Union, including its President, Officer Conrad, have interfered with attempts to discipline Weaver. Id. ¶ 46. Sgt. Grice has also not been disciplined for any conduct related to Plaintiff. Id. ¶ 47.
On June 21, Plaintiff learned that DA Perlow had added Plaintiff to the District Attorney's Office Brady list at the recommendation of Chief Lewis. Id. ¶ 50. Neither Chief Lewis nor DA Perlow notified Plaintiff of the decision or gave her an opportunity to respond. Id. The Plaintiff further alleged in her Complaint, “The action of Brady listing [Plaintiff] prevents her from being hired as a law enforcement officer in the future.” Id.
“Brady material is exculpatory or impeaching evidence, which prosecutors are required to disclose to defense counsel under Brady v. Maryland, 373 U.S. 83 (1963).” Heidt v. City of McMinnville, No. 3:15-cv-00989-SI, 2016 WL 7007501, at *2 (D. Or. Nov. 29, 2016).
STANDARDS OF REVIEW
I. Summary Judgment
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs.,Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
II. Motion to Dismiss for Failure to State a Claim
A motion to dismiss under Rule 12(b)(6) for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).
DISCUSSION
I. District Attorney Perlow's Motion for Summary Judgment
DA Perlow moves for summary judgment on Plaintiff's claim that she violated her Fourteenth Amendment due process rights. Perlow Mot. 3-6, ECF No. 12. The Ninth Circuit has explained that analyzing a procedural due process claim involves a two-step inquiry. United States v. Juvenile Male, 670 F.3d 999, 1013 (9th Cir. 2012). “[T]he first [step] asks whether there exists a liberty or property interest which has been interfered with by the State; the second [step] examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” Id. (internal quotation marks and citations omitted); see also Tillotson v. Dumanis, 567 Fed.Appx. 482, 484 (9th Cir. 2014) (explaining that second step is governed by Mathews v. Eldridge, 424 U.S. 319, 335 (1976), which instructs courts “to balance (1) the private interest affected by the official action; (2) the risk of erroneous deprivation and the probable value of additional procedural safeguards; and (3) the governmental interest, including the fiscal and administrative burdens of additional procedures”).
At the first step, “it is well-recognized that the pursuit of an occupation or profession is a protected liberty interest that extends across a broad range of lawful occupations.” Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 65 n. 4 (9th Cir. 1994). But “the precise contours of that liberty interest remain largely undefined[.]” Dittman v. California, 191 F.3d 1020, 1029 (9th Cir. 1999). A plaintiff must demonstrate that the interference approaches a “complete prohibition of the right to engage in a calling[.]” Conn v. Gabbert, 526 U.S. 286, 292 (1999); see also Lowry v. Barnhart, 329 F.3d 1019, 1023 (9th Cir. 2003); cf. Engquist v. Oregon Dep 't of Agric., 478 F.3d 985, 997-98 (9th Cir. 2007) (limiting substantive due process claim for a public employers interference with occupational liberty “to extreme cases, such as a government blacklist, which when circulated or otherwise publicized to prospective employers effectively excludes the blacklisted individual from [their] occupation, much as if the government had yanked the license of an individual in an occupation that requires licensure”).
Here, the Complaint alleges that, “The action of Brady listing [Plaintiff] prevents her from being hired as a law enforcement officer in the future,” Compl. ¶ 50, and that Plaintiff “knows that she likely will not be able to do so if she continues to be Brady listed,” Id. ¶ 133. As pled the allegations may very well amount to a deprivation of a liberty interest that approaches a complete prohibition of the right to engage in one's calling. However, the Court is bound by the evidence in the summary judgment record. Plaintiff's claim fails at the first step of the analysis because she has not submitted any evidence that her placement on the Brady list has resulted in the deprivation of the right to engage as a law enforcement officer to the degree required.
At summary judgment, “the nonmoving party [is required] to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotation marks omitted). Because Plaintiff failed to produce evidence sufficient to create an issue of fact as to whether her placement on the Brady list caused a near complete prohibition of the right to engage in her calling in law enforcement, DA Perlow's motion for summary judgment should be granted. Conn, 526 U.S. at 292; see also Tillotson, 567 Fed.Appx. at 483 (9th Cir. 2014) (noting that “four” rejected applications following placement on a Brady list fell “far short of establishing a complete prohibition” on obtaining employment in law enforcement) (internal brackets omitted); Lane v. Marion Cnty., No. 6:19-cv-00287-MC, 2020 WL 5579820, *4 (D. Or. Sept. 17, 2020) (“Providing evidence of one unsuccessful application with another law enforcement agency falls far short of establishing one is blacklisted from a career in law enforcement.”).
II. City Defendants' Motion to Dismiss
A. Monell
The City moves to dismiss Plaintiff's third claim, arguing that “there is an insufficient pattern and practice” to establish liability under Monell. City Mot. 5-6, ECF No. 23. In certain circumstances, a municipality may be held liable as a “person” under § 1983. Monell v. Dep 7 of Soc. Servs., 436 U.S. 658, 690-91 (1978). However, “a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id. Liability only attaches where the municipality itself causes the constitutional violation through the “execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id. at 694; see also Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992) (“[i]f the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability”) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 126 (1988)).
There are three methods by which a plaintiff may establish municipal liability under Monell: a plaintiff must allege facts that establish the entity caused a constitutional violation by (1) an employee acting pursuant to an expressly adopted official policy; (2) an employee acting pursuant to a longstanding practice or custom; or (3) an employee acting as a final policymaker. Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003).
In her Complaint, Plaintiff alleges as follows with respect to her Monell claim:
Defendant SPD violated Plaintiff's right to equal protection under the Fourteenth Amendment of the United States Constitution in one or more of the following:
(a) Creating, interpreting, and/or implementing policies, customs, or practices that create discrimination against women as described above, and/or cover up the sexual harassment, discrimination, or sexual misconduct of men; and/or
(b) In that Defendant SPD's employees who dictate final policy, custom or practice, Defendants Lewis and Rappe took actions that discriminate against women, including Plaintiff, as described above and in the cases Umenhofer v. Grimaldi et al., U.S. District Court of Oregon Case No. 6:14-cv-01575-TC, and Nicholv. Springfieldetal., U.S. District Court of Oregon Case No. 6:14-cv-01983-AA, resulting in policy, custom, or practice at Defendant SPD of discrimination against women.Compl. ¶ 64.
Plaintiff has not sufficiently plead a Monell claim here. As for paragraph (a), Plaintiff's Monell claim fails because the Complaint does not list any specific examples of a specific employee actually causing an alleged constitutional injury pursuant to an official policy, practice, or longstanding custom. Instead, the Complaint generally asserts SPD had a policy of discrimination. That level of generality is insufficient to state a Monell claim. See Rodriguez v. City of Modesto, 535 Fed.Appx. 643, 646 (9th Cir. 2013) (affirming district court's dismissal of Monell claim based only on conclusory allegations and lacking factual support); see also Cook v. Cnty. of Contra Costa, 2016 WL 913395, at *4 (N.D. Cal. Mar. 10, 2016) (“In order to withstand a motion to dismiss for failure to state a claim, a Monell claim must consist of more than mere formulaic recitations of the existence of unlawful policies, conducts or habits.”) (citation and quotation marks omitted).
As for paragraph (b), Plaintiff's general assertion that Defendants Lewis and Rappe “took actions that discriminate against women” and reference to two cases from this District is also insufficient. To the extent that Plaintiff relies on allegations elsewhere in her Complaint regarding actions taken by Lewis and Rappe, “[a] single constitutional deprivation ordinarily is insufficient to establish a longstanding practice or custom.” Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999).
In sum, because the Complaint fails to allege specific constitutional harms caused by SPD employees acting in accordance with an official policy, practice, or longstanding custom, or specifically allege actions taken by final policy makers that violated Plaintiff's rights, the Complaint fails to state a Monell claim. The City Defendants' motion to dismiss should therefore be granted. However, because Plaintiff may be able to cure her Complaint through amendment, the dismissal should be without prejudice and with leave to amend.
B. Public Accommodation
The City next moves to dismiss Plaintiff's fourth claim “because it lacks material, well-pleaded facts relevant to any applicable employment matter of this type.” City Mot. 6, ECF No. 23. Defendants also assert that they are “unaware of any binding authority applying ORS 659A.403 to an employment claim.” Id. at 7.
Oregon's Public Accommodation statute provides in relevant part:
(1) [A]ll persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of . . . sex [or] gender identity . . . .
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(3) It is an unlawful practice for any person to deny full and equal accommodations, advantages, facilities and privileges of any place of public accommodation in violation of this section.ORS § 659A.403.
Federal courts apply the McDonnell Douglas burden-shifting analysis to discrimination claims that arise under state law. See Dawson v. Entek Int'l, 630 F.3d 928, 935 (9th Cir. 2011) (affirming that the McDonnell Douglas framework governs analysis of claims of discrimination under Oregon state law regardless of whether the federal court has diversity or pendent jurisdiction over the state-law claims); see also Harrington v. Airbnb, Inc., 348 F.Supp.3d 1085, 1089 (D. Or. 2018). A complaint must therefore at a minimum allege facts that if true establish a prima facie case of impermissible discrimination under ORS § 659A.403. “To state a prima facie case under the OPAA, a plaintiff must allege that [they were] treated unequally because of [a protected trait] and that [they had] been injured as a result.” Harrington, 348 F.Supp.3d at 1089-90 (D. Or. 2018).
The Complaint here fails to make a prima facie showing because it fails to identify any specific “accommodation, advantage, facility or privilege” that Plaintiff was denied. Put differently, although the Complaint lists five separate instances of alleged discrimination, it fails to identify what specific accommodation or service Plaintiff was denied as a result. See Compl. ¶ 69; cf. Harrington, 348 F.Supp.3d 1085, 1089 (D. Or. 2018) (observing that “to proceed on a claim of racial discrimination” the plaintiffs were required to “allege facts sufficient to show that Airbnb intended to deny African-Americans full and equal access to the accommodations and services available on its online platform”) (emphasis added).
In sum, because the Complaint fails to allege that Plaintiff was in fact denied any specific “accommodation, advantage, facility or privilege,” the City Defendants' motion to dismiss should be granted. However, as with Plaintiff's Monell claim, the Complaint's deficiencies may be curable through amendment. The dismissal should therefore be without prejudice and with leave to amend.
C. Intimate Association Claim
The City moves to dismiss Plaintiff's ninth and twelfth claims because the Complaint does “not properly or adequately identify the constitutional right supposedly violated by Defendants.” City Mot. 7-8, ECF No. 23. The Supreme Court has recognized that “certain kinds of personal bonds,” Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984), and “certain [kinds of] intimate conduct,” Lawrence v. Texas, 539 U.S. 558, 562 (2003) are protected by the substantive component of the Due Process Clause, either as a part of the right to intimate association under the Fourteenth Amendment or the right to privacy under the First Amendment. The Complaint here alleges that Defendants Rappe and Lewis violated Plaintiff's constitutional rights as follows:
Defendant Rappe violated Plaintiff's right to intimate association and privacy secured by the First and Fourteenth Amendments to the United States Constitution by his conduct, including seizing and viewing one or more photos of Plaintiff, which identified Plaintiff in which her intimate body parts were visible; inquiring into Plaintiff's private, off-duty, sexual communications and conduct; instigating a formal investigation into Plaintiff's private, off-duty, sexual communications and conduct; disciplining Plaintiff and restricting her from work because of her personal, private, beliefs and descriptions of her private, off-duty sexual interactions; and/or disciplining Plaintiff and restricting her from work because of private, off-duty, sexual communications and conduct.Compl. ¶ 98.
Defendant Lewis violated Plaintiff's right to intimate association and privacy secured by the First and Fourteenth Amendments to the United States Constitution by his actions and inactions, including allowing and/or authorizing investigation into Plaintiff's private, off-duty sexual conduct; in terminating Plaintiff's employment because of private, off-duty sexual conduct; in terminating Plaintiff's employment because of her statements regarding private, off-duty sexual conduct; and/or in asking Defendant Perlow to put Plaintiff on the Lane County DA's Brady List.Compl. ¶ 113.
Plaintiff has sufficiently plead an intimate association claim. The Ninth Circuit's decision in Thorne v. City of El Segundo, 726 F.2d 459 (9th Cir. 1983), cert. denied, 469 U.S. 979 (1984) is particularly instructive. There, the plaintiff, a single woman who worked for the City of El Segundo as a clerk-typist, applied for a position in the City's police department. Id. at 466. She was denied the position, in part, because she admitted to having an affair with a married El Segundo police officer. Id. The plaintiff claimed that the City's inquiry into her sex life violated her rights of privacy and free association. Id.
The Ninth Circuit agreed, explaining that the plaintiff's interests “in the privacy of her sexual activities [were] within the zone protected by the [C]onstitution,” Id. at 468, and concluded Plaintiff's “private, off-duty” sexual activities were protected in this context, Id. at 471. Further, because the city could not demonstrate an “impact upon an applicant's on-the-job performance,” and failed to show “specific policies with narrow implementing regulations,” the City's rejection of the plaintiff's application for employment was impermissible. Id.; but see Fugate v. Phoenix Civ. Serv. Bd., 791 F.2d 736, 741 (9th Cir. 1986) (declining to extend Thorne and noting that “police officers who engaged in sexual relations while on the job” and where “the City has demonstrated that Appellants' job performance was threatened by obvious conflicts of interest as well as by the possibility of blackmail”).
The Complaint adequately alleges facts that allow an intimate association claim. Accordingly, the City Defendants' motion to dismiss Plaintiff's ninth and twelfth claims should be denied.
D. First Amendment Claim
The City moves to dismiss Plaintiff's tenth and twelfth claims, arguing that Plaintiff's workplace “speech” was not protected by the First Amendment. City Mot. 9-11, ECF No. 23. “The First Amendment shields a public employee if [they] speak[] as a citizen on a matter of public concern.” Ellins v. City of Sierra Madre, 710 F.3d 1049, 1056 (9th Cir. 2013) (citation omitted). “However, ‘when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. (quoting Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)).
In the Ninth Circuit, courts “follow a sequential five-step inquiry to determine whether an employer impermissibly retaliated against an employee for engaging in protected speech.” Id. (citing Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009)). The inquiry looks to “(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; and (3) whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action . . . (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.” Id. (citations omitted). The Ninth Circuit later clarified that “by ‘sequential,' [it] mean[t] only that all the factors are necessary, in the sense that failure to meet any one of them is fatal to the plaintiff's case.” Dahlia v. Rodriguez, 735 F.3d 1060, 1067 n.4 (9th Cir. 2013).
Assuming without deciding that Plaintiff's “statement . . . regarding her personal belief regarding a private, intimate, off-duty sexual experience” Compl. ¶¶ 103, 118, qualifies as a matter of public concern, her First Amendment claims fails at the second step of the sequential inquiry. This is so because Plaintiff cannot establish that her speech was made as a private citizen.
“A public employee speaks as a private citizen if he or she ‘had no official duty' to make the statements at issue, or if the speech did not result from ‘performing the tasks the employee was paid to perform.'” Biggs v. City of St. Paul, No. 6:18-cv-506-MK, 2019 WL 4575839, at *6 (D. Or. Mar. 7, 2019) (citing Eng, 552 F.3d at 1071), adopted, 2019 WL 4544268 (D. Or. Sept. 18, 2019). The plaintiff bears the burden of showing she spoke as a private citizen and not as a public employee. Id.; Robinson v. York, 566 F.3d 817, 823-24 (9th Cir. 2009). Speech made as a private citizen is thus protected by the First Amendment, but speech made as part of a public employee's official duties is not subject to First Amendment protection. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
The Ninth Circuit announced three “guiding principles” courts employ when assessing whether the speech at issues is made as a private citizen or public employee: (1) whether “the employee confined [their] communications to [their] chain of command” (if not, “it is unlikely that [they are] speaking pursuant to [their] duties”); (2) the subject matter of the communication (for example, routine reports prepared according to normal departmental procedure are typically within the employee's job duties, unlike statements about “broad concerns about corruption or systemic abuse”); and (3) whether the employee spoke “in direct contravention to [their] supervisor's orders” (if so, that speech may be beyond their professional duties). Dahlia v. Rodriguez, 735 F.3d 1060, 1074-76 (9th Cir. 2013); see also Brandon v. Maricopa Cty., 849 F.3d 837, 843 (9th Cir. 2017).
Here, the speech at issue-Plaintiff's “statement . . . regarding her personal belief regarding a private, intimate, off-duty sexual experience”-was made directly within the chain of command. Plaintiff's statement was responsive to superior officers' questioning during an investigation into a potential relationship between two police officers. Compl. ¶¶ 32-33. Although Plaintiff's statement during the November 2020 “interrogation” was not a run-of-the-mill report prepared in the normal course of department procedures, there is nothing in the Complaint suggesting that Plaintiff was reporting “broad concerns about corruption or systemic abuse” within SPD. Finally, there is nothing in the Complaint that would allow the Court to infer that Plaintiff spoke “in direct contravention of [her] supervisor's orders.” On balance, as currently plead, Plaintiff spoke as a public employee. See Freitag v. Ayers, 468 F.3d 528, 545-46 (9th Cir.2006) (holding the plaintiff's internal reports to her director were not protected speech).
In sum, the Court concludes Plaintiff did not engage in protected speech activities when she answered questions concerning the nature of her relationship with Sgt. Grice because she spoke as a public employee. See Dahlia, 735 F.3d at 1067 n.4 (“[A]ll the factors are necessary, in the sense that failure to meet any one of them is fatal to the plaintiff's case.”); but cf. White v. Taylor, No. 6:18-cv-00550-MK, 2020 WL 5649629, at *5-9 (D. Or. July 7, 2020) (recognizing a First Amendment retaliation claim of a forced disclosure of speech and finding police officer spoke as a private citizen). As such, Plaintiff cannot rely on this speech to prove her prima facie case of First Amendment retaliation. Plaintiff has therefore failed to state a claim under § 1983 for violation of her right to free speech. The City's motion to dismiss Plaintiffs tenth and twelfth claims should be granted without prejudice with leave to amend.
E. Motion to Strike
A court may strike from a pleading “any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). The purpose of Rule 12(f) is to help “avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial ....” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517 (1994)). However, motions to strike are generally disfavored and infrequently granted. Legal Aid Servs. of Or. v. Legal Servs. Corp., 561 F.Supp.2d 1187, 1189 (D. Or. 2008); see also Capella Photonics, Inc. v. Cisco Sys., Inc., 77 F.Supp.3d 850, 858 (N.D. Cal. 2014) (“Motions to strike are regarded with disfavor because of the limited importance of pleadings in federal practice and because they are often used solely to delay proceedings.”) (quotation marks and alterations omitted).
Courts may not resolve disputed and substantial factual or legal issues in deciding a motion to strike. Whittlestone, 618 F.3d at 973. “A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” Contreras, ex rel. Contreras v. Cnty. of Glenn, 725 F.Supp.2d 1157, 1159 (E.D. Cal. 2010) (quoting Bassett v. Ruggles, 2009 WL 2982895, at *24 (E.D. Cal. Sept. 14, 2009)).
The City moves to strike various paragraphs from the Complaint. First, the City moves to strike from the Complaint the following accusation: “Defendant Rappe has a history of sexual misconduct and has covered up sexual misconduct of other male officers in the past.” Compl. ¶ 91. Striking that language is appropriate, the City argues, because the allegation “lacks material, well-pleaded facts, it is inflammatory, and not relevant to any claim. Alternatively, Defendants move to make Paragraph 91 more definite and certain regarding which complaints Plaintiff are alleging were ‘covered up.'” City Mot. 12. At oral argument, Plaintiff represented that she was prepared to add specific factual allegations in support of the assertions in paragraph 91. As such, the Court declines to strike paragraph 91 at this time. Plaintiff is instructed to plead facts that would support her assertions that Defendant Rappe had a history of misconduct and that Rappe has “covered up” misconduct of other officers in any amended complaint.
Second, the City moves to strike the following language from the Complaint: “Officer Conrad, [] interfered with attempts to discipline Defendant Weaver for the actions alleged in this complaint.” Compl. 46. This allegation is inappropriate, according to the City, because “it lacks material, well-pleaded facts relevant to any claim.” City Mot. 12. In her response, Plaintiff argues that striking the language is not appropriate because she “believes that the police union defendant interfered with any discipline to Defendant Weaver, but has not yet had the opportunity through discovery to learn more specifics as to how the police union defendant was involved.” Pl.'s City Resp. 16. Whether Plaintiff was treated differently than Detective Weaver and Sgt. Grice is directly relevant to Plaintiff's claims. And interference with attempts to discipline Det. Weaver on the part of the Union is also relevant to that inquiry. Accordingly, The Court declines to strike paragraph 46.
Finally, the City moves to strike paragraphs one and two from the Complaint because they “contain subjective interpretations and conclusory characterizations of statistics and contain supposed historical assertions regarding events that occurred nearly 100 years prior to the filing of Plaintiff's Complaint.” City Reply 10, ECF No. 26; see also City Mot. 11-12.
The objected to paragraphs contain the following language:
Before 1910, male law enforcement officials completely excluded women from working as law enforcement officers in the United States. In 2019, male law enforcement continued to exclude women from careers in law enforcement so severely that nationally, on average, only 12.5% of full-time law enforcement officers were female. One historical justification for excluding women from law enforcement roles is the argument that with a woman present, men are not able to sexually control themselves. The argument that women are responsible, but men are not responsible, for sexual contact is also a historical justification for rape and other violence against women.Compl. ¶ 1.
In 2019, male law enforcement officers at Defendant City of Springfield - Springfield Police Department (Defendant SPD) excluded women from careers in law enforcement at a higher rate than the national average. At that time, only 7% of Defendant SPD's officers were women.Id. ¶ 2.
Given the striking nature of the allegations of this lawsuit and the larger national conversations regarding sex discrimination and sexual harassment and abuse in the workplace, the Court declines to say the contested paragraphs “could have no possible bearing on the subject matter of the litigation.” Contreras, 725 F.Supp. at 1159.
The City's motion to strike is DENIED.
F. Additional Matters
During conferral, Plaintiff agreed “to remove claims [eight] and [eleven]”-her “aider and abettor” claims against Defendants Rappe and Lewis-“if she is instructed to amend by the Court as to other claims.” Pl.'s City Opp'n 6-7. As discussed above, the Court concludes that several of Plaintiff's claims should be dismissed and she should be permitted to file an amended complaint. As such, the Court GRANTS the City Defendant's motion to dismiss claims eight and eleven.
Finally, after this Court heard oral argument on DA Perlow's and the City Defendants' motions, Plaintiff moved for leave to file an amended Complaint. Mot. Leave File Am. Compl., ECF No. 31. Given the Court's recommendation to allow amendment, Plaintiff's motion for leave to file an amended complaint (ECF No. 31) is DENIED as moot.
RECOMMENDATION
For the reasons above, DA Perlow's motion for summary judgment (ECF No. 12) should be GRANTED. The City Defendants' motion to dismiss should be GRANTED in part and DENIED in part. Specifically, the motion should be granted as to Plaintiff's Monell, OPAA, and First Amendment claims; however, the motion should be denied as to Plaintiff's intimate association claim. Any amended complaint should be filed no later than thirty (30) days after the district court's ruling on this Findings and Recommendation.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72.
Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).