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Case 6:09-cv-06061-MO Document 34 Filed 02/08/10 Page 1 of 13 Page ID#: 136

Tamara E. Russell, OSB No. 973868


trussell@barran.com
John B. Dudrey, OSB No. 08308
j dudrey @ barran. com
BARRAN LIEBMAN LLP
601 SW Second Ave., Suite 2300
Portland, Oregon 97204-3159
Telephone: (503) 228-0500
Facsimile: (503)274-1212
Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

KRISTINE M. PHILLIPS, CV-09-6061-TC


Plaintiff,
DEFENDANTS' ANSWER,
V. AFFIRMATIVE DEFENSES AND
COUNTERCLAIM TO
MARION COUNTY SHERIFF'S OFFICE, a PLAINTIFF'S FIRST AMENDED
department of Marion County, RUSS ISHAM, COMPLAINT
CHRIS HOY, and BRONSON HOPPE,

Defendants.

For their answer to plaintiff's first amended complaint dated January 21, 2010,
defendants Marion County Sheriff's Office, Russ Isham, Chris Hoy and Bronson Hoppe
(collectively, "defendants"), respond and allege as follows:

JURISDICTION
1. Answering the allegations in paragraph one, defendants state that paragraph one
contains legal conclusions to which no response is required. Defendants further object that the

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PLAINTIFF'S FIRST AMENDED COMPLAINT
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allegations in the First Amended Complaint are "all times relevant," and that plaintiff has not
alleged a claim for "hostile work environment."

2. Answering the allegations in paragraph two, defendants admit that there is federal
question jurisdiction over the Title VII and 42 U.S.C. § 1983 claims and that plaintiff has
requested a jury trial.

SUPPLEMENTAL JURISDICTION
3. Answering the allegations in paragraph three, defendants admit that supplemental
jurisdiction over plaintiff's state law claims is appropriate at this time.

VENUE

4. Answering the allegations in paragraph four, defendants admit that venue is


appropriate in the Eugene Division of the U.S. District Court for the District of Oregon.

5. Defendants lack information sufficient to form a belief as to the truth of the


matters alleged in paragraph five and therefore denies them.

6. Answering the allegations in paragraph six, defendants admit that the Marion
County Sheriff's Office is a department of Marion County, but deny that the Marion County
Sheriff's Office is a proper defendant in this case (Marion County is the proper defendant).
Defendants further admit that defendants Hoppe, Hoy and Isham served in the positions
identified in paragraph six, but deny that they served in those positions "at all relevant times."

EXHAUSTION OE ADMINISTRATIVE REMEDIES


7. Answering the allegations in paragraph seven, defendants admit that plaintiff filed
a complaint with the Oregon Bureau of Labor and Industries ("BOLI") on or about October 21,
2008, and that the complaint was co-filed with the Equal Employment Opportunity Commission
effective October 27, 2008. Defendants further admit that BOLI dismissed the complaint of
discrimination because it "did not find sufficient evidence to continue [its] investigation" on or
about December 9, 2008, and that plaintiff filed her complaint in court on March 6, 2009.
Defendants deny that plaintiff "timely filed complaints" with either BOLI or the EEOC.

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PLAINTIFF'S FIRST AMENDED COMPLAINT
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Defendants further deny that plaintiff satisfied the notice requirements of the Oregon Tort
Claims Act. Defendants lack information sufficient to form a belief as to the truth of the
remaining matters alleged in paragraph seven and therefore deny them.

FACTUAL ALLEGATIONS
8. Defendants admit the allegations in paragraph eight.

9. Answering the allegations in paragraph nine, defendants admit that plaintiff is a


female and that she has worked for Marion County in some capacity since October 1992
(although not continuously). Defendants deny the remaining allegations in paragraph nine.

10. Answering the allegations in paragraph ten, defendants admit that plaintiff
received a letter of reprimand in July 2006 for using physical exercise as punishment and for not
allowing prisoners the opportunity to decline exercise. Defendants deny the remaining
allegations in paragraph ten.

11. Defendants deny the allegations in paragraph 11.

12. Answering the allegations in paragraph 12, defendants admit that plaintiff worked
with Deputy Steve Jochums during her employment with Marion County Sheriff's Office, and
that plaintiff handcuffed an inmate to the posts of two different bunk beds in May 2007.
Defendants further admit that plaintiff and Jochums received discipline commensurate with their
involvement in the situation and their respective roles within the Sheriff's Office, and that
Jochums' discipline included a one-day suspension without pay. Defendants deny the remaining
allegations in paragraph 12.

13. Defendants deny the allegations in paragraph 13.

14. Answering the allegations in paragraph 14, defendants admit that plaintiff came
up with the idea in June 2007 to place two inmates who were scheduled for release the following
day in a four-by-four room with a steel door. Defendants admit that plaintiff and the deputies
involved with the incident were disciplined, and that the punishment plaintiff received was

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PLAINTIFF'S FIRST AMENDED COMPLAINT
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commensurate with her involvement in the situation and her role within the Sheriff's Office.
Defendants deny the remaining allegations in paragraph 14.

15. Answering the allegations in paragraph 15, defendants admit that plaintiff was
disciplined for her involvement with the incident described in paragraph 14, and that she was
ultimately discharged for the events described in paragraphs 10 and 14. Defendants further
admit that plaintiff was placed on a paid administrative leave pending an external and internal
investigation into the matters described in paragraphs 10 and 14. Defendants deny the remaining
allegations in paragraph 15.

16. Defendants deny the allegations in paragraph 16.

17. Answering the allegations in paragraph 17, defendants admit that Marion County
Sheriff's Office has a system of progressive discipline for its non-managerial employees and that
the system allows managers to skip steps of discipline depending on the facts and circumstances
of each case. Defendants deny the remaining allegations in paragraph 17.

18. Answering the allegations in paragraph 18, defendants admit that plaintiff learned
on or about September 28, 2007, in the presence of defendant Hoy and Union Representative
Dale Bradley, that her job had been terminated. Defendants either deny the remaining
allegations in paragraph 17 or lack information sufficient to form a belief as to the truth of the
matters alleged and therefore deny them.

19. Answering the allegations in paragraph 19, defendants admit that plaintiff filed a
union grievance and that on June 9, 2008, the arbitrator rescinded the two-day suspension
without pay for the holding cell incident described in paragraph 14, above, and reduced the
termination to a 30-day suspension without pay for the handcuffing incident (described in
paragraph 10, above). Defendants further admit that the County decided to appeal the
arbitrator's ruling, which would delay any decision regarding plaintiff's employment with the
Marion County Sheriff's Office. Defendants either deny the remaining allegations in paragraph

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19 or lack information sufficient to form a belief as to the truth of the matters alleged, and
therefore deny them.

20. Answering the allegations in paragraph 19, defendants admit that plaintiff has not
returned to work with Marion County since her discharge in September 2007. Defendants deny
the remaining allegations in paragraph 20.

21. Defendants admit the allegations in paragraph 21.

22. Answering the allegations in paragraph 22, defendants admit that the ERB ALJ
found against Marion County Sheriff's Office and upheld the award as written.

23. Answering the allegations in paragraph 23, defendants admit that Marion County
Sheriff's Office has not reinstated plaintiff due to the ongoing appeal of her grievance, and that
plaintiff and Marion County Sheriff's Office agreed to attend a mediation on June 30, 2009, to
resolve all then-known disputes arising out of plaintiff's employment and that the mediation was
unsuccessful. Defendants further admit that Marion County Sheriff's Office sent plaintiff a
reinstatement letter with a 30-day suspension effective July 1, 2009. Defendants either deny the
remaining allegations in paragraph 23 or lack information sufficient to form a belief as to the
remaining matters alleged in paragraph 23 and deny them.

FIRST CLAIM AGAINST MARION COUNTY


(Violation of Title VII - Sex Discrimination, 42 U.S.C. § 2000e)

24. Answering the allegations in paragraph 24, defendant Marion County realleges its
responses to paragraphs 1-23 as though fully set forth herein. Defendant Marion County further
states that the remaining language in paragraph 24 is a legal conclusion to which no response is
required.

25. Answering the allegations in paragraph 25, defendant Marion County admits that
plaintiff is a female. Defendant Marion County denies the remaining allegations in paragraph
25.
26. Defendant Marion County denies the allegations in paragraph 26.

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PLAINTIFF'S FIRST AMENDED COMPLAINT
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601 SW SECOND AVENUE, SUITE 2300
PORTLAND, OR 97204-3159
(503) 228-0500
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27. Defendant Marion County denies the allegations in paragraph 27, and specifically
denies plaintiff's entitlement to any damages.

SECOND CLAIM AGAINST MARION COUNTY


(Violation of ORS 659A.030 - Sex Discrimination, ORS 659A.030)

28. Answering the allegations in paragraph 28, defendant Marion County realleges its
responses to paragraphs 1-27 as though fully set forth herein. Defendant Marion County further
states that the remaining language in paragraph 28 is a legal conclusion to which no response is
required.

29. Answering the allegations in paragraph 29, defendant Marion County admits that
plaintiff is a female. Defendant Marion County denies the remaining allegations in paragraph
29.

30. Defendant Marion County denies the allegations in paragraph 30.

31. Defendant Marion County denies the allegations in paragraph 31, and specifically
denies plaintiff's entitlement to any damages.

THIRD CLAIM AGAINST DEFENDANTS ISHAM, HOY, AND HOPPE


(Violation of 42 U.S.C. § 1983)
(Count 1-Violation of Due Process by Defendants Isham, Hoy, and Hoppe)

32. Answering the allegations in paragraph 32, defendants Isham, Hoy and Hoppe
reallege their responses to paragraphs 1-23 as though fully set forth therein (paragraphs 24-31
were alleged against defendant Marion County Sherriff's Office only). Defendants Isham, Hoy
and Hoppe state that the remaining allegations in paragraph 32 are legal conclusions to which no
response is required.

33. Defendants Isham, Hoy and Hoppe admit the allegations in paragraph 33.

34. Defendants Isham, Hoy and Hoppe deny the allegations in paragraph 34.
35. Defendants Isham, Hoy and Hoppe deny the allegations in paragraph 35.

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PLAINTIFF'S FIRST AMENDED COMPLAINT
00165535.DOC BARRANLIEBMANLLP
601 SW SECOND AVENUE, SUITE 2300
PORTLAND, OR 97204-3159
(503) 228-0500
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36. Defendants Isham, Hoy and Hoppe deny the allegations in paragraph 36, and
specifically deny plaintiff's entitlement to any damages.

(Count 2-Violation of Equal Protection by Defendants Isham, Hoy, and Hoppe)

37. Answering the allegations in paragraph 37, defendants Isham, Hoy and Hoppe
reallege their responses to paragraph 1-23 and 32-36 as though fully set forth herein (paragraphs
24-31 were alleged against defendant Marion County Sheriff's Office only). Defendants Isham,
Hoy and Hoppe state that the remaining allegations in paragraph 37 are legal conclusions to
which no response is required.

38. Answering the allegations in paragraph 38, defendants Isham, Hoy and Hoppe
admit that they acted in the performance of their official duties under applicable law. Defendants
Isham, Hoy and Hoppe deny the remaining allegations in paragraph 38.

39. Answering the allegations in paragraph 39, defendants Isham, Hoy and Hoppe
admit that plaintiff is a female. Defendants Isham, Hoy and Hoppe deny the remaining
allegations in paragraph 39.

40. Defendants Isham, Hoy and Hoppe deny the allegations in paragraph 40.

41. Defendants Isham, Hoy and Hoppe deny the allegations in paragraph 41, and
specifically deny plaintiff's entitlement to damages.

FOURTH CLAIM
(Wrongful Discharge)

42. Answering the allegations in paragraph 42, defendant Marion County realleges its
responses to paragraphs 1-31 as though fully set forth therein (paragraphs 32-41 were alleged
against defendants Hoy, Isham and Hoppe only). Defendant Marion County admits that
plaintiff's employment was discharged.

43. Defendant Marion County denies the allegations in paragraph 43.


44. Defendant Marion County denies the allegations in paragraph 44.

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PLAINTIFF'S FIRST AMENDED COMPLAINT
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601 SW SECOND AVENUE, SUITE 2300
PORTLAND, OR 97204-3159
(503) 228-0500
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45. Defendant Marion County denies the allegations in paragraph 45, and specifically
denies plaintiffs entitlement to damages.

FIFTH CLAIM
(Intentional Infliction of Emotional Distress)

46. Answering the allegations in paragraph 46, defendant Marion County realleges its
responses to paragraphs 1-31 and 42-45 as though fully set forth therein (paragraphs 32-41 were
alleged against defendants Hoy, Isham and Hoppe only). Defendant Marion County denies the
remaining allegations in paragraph 46.

47. Defendant Marion County denies the allegations in paragraph 47.


48. Defendant Marion County denies the allegations in paragraph 48.

49. Defendant Marion County denies the allegations in paragraph 49, and specifically
denies plaintiff's entitlement to any damages.

SIXTH CLAIM
(Breach of Contract Against Marion County)

50. Answering the allegations in paragraph 50, defendant Marion County realleges its
responses to paragraphs 1-31 and 42-49 as though fully set forth therein (paragraphs 32-41 were
alleged against defendants Hoy, Isham and Hoppe only). Defendant Marion County denies the
remaining allegations in paragraph 50.

SEVENTH CLAIM
(Breach of the Covenant of Good Faith and Fair Dealing Against Marion County)

51. Answering the allegations in paragraph 51, defendant Marion County realleges its
responses to paragraphs 1-31 and 42-50 as though fully set forth therein (paragraphs 32-41 were
alleged against defendants Hoy, Isham and Hoppe only). Defendant Marion County denies the
remaining allegations in paragraph 51.

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PLAINTIFF'S FIRST AMENDED COMPLAINT
00165535.DOC BARRAN LIEBMAN i,U'
601 SW SECOND AVENUE, SUITE 2300
PORTLAND, OR 97204-3159
(503) 228-0500
Case 6:09-cv-06061-MO Document 34 Filed 02/08/10 Page 9 of 13 Page ID#: 144

AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Claim)

52. Plaintiff has failed to allege facts sufficient to constitute actionable claims against
defendants.

SECOND AFFIRMATIVE DEFENSE


(Failure to Mitigate Damages)

53. Plaintiff has failed to mitigate her damages.

THIRD AFFIRMATIVE DEFENSE


(Good Faith / Legitimate Business Reasons)

54. All employment actions with respect to plaintiff were taken in good faith and
hased upon legitimate, nondiscriminatory business reasons.

FOURTH AFFIRMATIVE DEFENSE


(Failure to Exhaust Administrative Remedies)

55. Plaintiff has failed to satisfy the administrative prerequisites to some of her claims
under Title VII of the Civil Rights Act of 1964 and/or ORS 659A.030.

FIFTH AFFIRMATIVE DEFENSE


(Same Decision Absent Protected Conduct)

56. Plaintiff's claims for damages, fees and costs, are harred in whole or in part
because defendant Marion County would have made the same employment decisions regarding
plaintiff in the absence of any alleged impermissible motivating factor, the presence of which is
denied.

SIXTH AFFIRMATIVE DEFENSE


(Plaintiff's Conduct)

57. Plaintiff's own deliberate, willful and/or negligent conduct proximately caused or
contributed to some or all of the damages and injuries alleged in the complaint. To the extent, if

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any, that plaintiff has suffered any emotional distress or mental anguish, plaintiff's own conduct
and negligent acts and omissions proximately caused her emotional distress and/or mental
anguish.

SEVENTH AFFIRMATIVE DEFENSE


(Statute of Limitations)

58. Some or all of plaintiff's claims are time-barred by the applicable statute of
limitations.

EIGHTH AFFIRMATIVE DEFENSE


(Tort Claims Act Notice)

59. Plaintiff has failed to satisfy the notice requirements of the Oregon Tort Claims
Act with respect to some or all of her claims against defendants.

NINTH AFFIRMATIVE DEFENSE


(ERB Retains Jurisdiction)

60. To the extent plaintiff's breach of contract or good faith and fair dealing claims
are based in whole or in part on the failed June 30, 2009, mediation, plaintiff's claims should be
dismissed: Enforcement and settlement of an ERB case/arbitration dispute is in the exclusive
jurisdiction of the ERB, and plaintiff's grievance remains pending on appeal.

TENTH AFFIRMATIVE DEFENSE


(Qualified Immunity)

62. Defendants Isham, Hoy and Hoppe at all times acted in good faith in the
performance of their duties and are therefore immune from suit for the matters charged in
plaintiff's complaint under the doctrine of qualified immunity.

ELEVENTH AFFIRMATIVE DEFENSE


(Failure to Perform)
63. Plaintiffs breach of contract action is ban'ed in part by reason of her failure to
perform her obligations under the alleged contract.

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TO PLAINTIFF'S FIRST AMENDED COMPLAINT
00165535.DOC BARRAN LIEBMAN LLP
601 SW SECOND AVENUE, SUITE 2300
PORTLAND, OR 97204-3159
(503) 228-0500
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TWELFTH AFFIRMATIVE DEFENSE


(Failure to Use Internal Complaint Mechanism)

64. Marion County has a complaint reporting procedure of which plaintiff was aware.
Plaintiff, however, failed to use that complaint reporting procedure to complain about purported
sex discrimination, unfair treatment or the like. She unreasonably failed to take advantage of
preventative or corrective opportunities provided by defendant to avoid harm.

THIRTEENTH AFFIRMATIVE DEFENSES


(Punitive Damages Not Available)

65. Plaintiff's complaint includes claims for punitive damages under her first and
second claims for relief (sex discrimination under Title VII and ORS 659A.030) and fourth claim
for relief (intentional infliction of severe emotional distress), all of which are alleged against
defendant Marion County. Punitive damages, however, are not available against a public entity.
ORS 30.269.

COUNTERCLAIM
(Attorney Fees)

66. Pursuant to 42 USC §1988 and ORS 659A.885, defendants are entitled to their
reasonable attorney fees, costs, and expert witness fees.

WHEREFORE, defendants Marion County Sheriff's Office, Bronson Hoppe, Russ Isham
and Chris Hoy demand judgment as follows:
(1) For dismissal of plaintiff's Complaint and that plaintiff take nothing thereby;
(2) For judgment in defendants' favor on their counterclaim, and for an award of
costs, disbursements and attorney fees incurred herein; and

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TO PLAINTIFF'S FIRST AMENDED COMPLAINT
00165535.DOC BARRANLIEBMANixi>
601 SW SECOND AVENUE, SUITE 2300
PORTLAND, OR 97204-3159
(503) 228-0500
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(4) For any oll^r relief this court deems just and appropriate.
DATED this 0 day of Fehruary, 2010.

BARRAN LIEBMAN LLP

By
Tamara E. Russell, OSB No. 9386^
John B. Dudrey, OSB No. 08308
Telephone: (503) 228-0500
Attorneys for Defendants

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TO PLAINTIFF'S FIRST AMENDED COMPLAINT
00165535.DOC BARRAN LIEBMAN LLP
601 SW SECOND AVENUE, SUITE 2300
PORTLAND, OR 97204-3159
(503) 228-0500
Case 6:09-cv-06061-MO Document 34 Filed 02/08/10 Page 13 of 13 Page ID#: 148

CERTIFICATE OF SERVICE

y
I hereby certify that on the O day of February, 2010, I served the foregoing
DEFENDANTS' ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO
PLAINTIFF'S FIRST AMENDED COMPLAINT on the following parties at the following
addresses:
Kevin T. Lafky
klafky@lafky.com
Haley Percell
hpercell @ lafky.com
Lafky & Lafky
429 Court Street, NE
Salem, OR 97301

Attorneys for Plaintiff

by the following indicated method or methods set forth below:

IS Electronic Filing

n Facsimile

n First-class mail, postage prepaid

D Hand-delivery

n Overnight courier, delivery prepaid

John B. Dudrey

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TO PLAINTIFF'S FIRST AMENDED COMPLAINT
00165535.DOC BARRANLIEBMANi.U'
601 SW SECOND AVENUE, SUITE 2300
PORTLAND, OR 97204-3159
(503) 228-0500

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