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Mockler v. Multnomah County

March 31, 1998

LANA MOCKLER, PLAINTIFF-APPELLEE,
v.
MULTNOMAH COUNTY; DAN NOELLE; AND DENNIS FITZ, DEFENDANTS-APPELLANTS, AND PIETER VAN DYKE; MULTNOMAH COUNTY DEPUTY SHERIFF'S ASSOCIATION; AND ROBERT SKIPPER, DEFENDANTS.



D.C. No. CV 93-01117-HJF

Appeal from the United States District Court for the District of Oregon Helen J. Frye, District Judge, Presiding Argued and Submitted January 5, 1998 Portland, Oregon

Before: Harry Pregerson, Stephen S. Trott, and A. Wallace Tashima, Circuit Judges.

The opinion of the court was delivered by: Pregerson, Circuit Judge:

FOR PUBLICATION

Opinion by Judge Pregerson

SUMMARY

Plaintiff Lana Mockler, a former Deputy Sheriff with the Multnomah County Sheriff's Office, sued Sheriff Dan Noelle, Multnomah County, and Deputy Dennis Fitz ("defendants") for hostile environment sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. S 2000e et seq. and under Oregon law, ORSS 659.030. Mockler also raised an equal protection claim under 42 U.S.C. S 1983 and a state law claim of intentional infliction of emotional distress.

After trial, a jury returned a verdict finding Multnomah County liable for sexual harassment and retaliation. The jury found that Deputy Fitz and the Sheriff were liable for equal protection violations, and that Fitz was liable for intentional infliction of emotional distress. The jury awarded Deputy Mockler $195,000 in compensatory damages and $30,000 in punitive damages. The defendants filed motions for judgment as a matter of law as to all of Mockler's claims. The district court denied these motions, and the defendants appealed.

Among the issues on appeal, defendants contend that the district court erred in instructing the jury that Multnomah County was liable for sexual harassment and retaliation unless it could prove that it took prompt and effective action to remedy the Title VII violations.*fn1 Defendants argue that, instead, Deputy Mockler bore the burden of showing that Multnomah County failed to take such remedial action. We have jurisdiction under 28 U.S.C. S 1291. We find that the challenged jury instruction was erroneous, but we conclude that the error was harmless. Therefore, we AFFIRM the district court's denial of defendants' motion for judgment as a matter of law on Mockler's Title VII claim.

I.

On April 25, 1989 Mockler was hired as a Sheriff's Deputy with the Multnomah County Sheriff's Office ("MCSO"). At roll call on March 18, 1992, Deputy Fred Hill complained that Deputy Mockler was not taking proper care of the patrol car that they shared. In particular, he complained that she would often leave trash in the car and failed to fill the gas tank after her shift. Upon overhearing Hill's comments, Deputy Fitz stated that someone had to "deal with the fucking cunt" and "get that crack under control." He also said that he "didn't give a fuck if [Mockler is outside of the room ] and hears this. She's a bitch." One of the officers present during this outburst told Fitz that Deputy Tolliver, Mockler's boyfriend, was not going to like the things he was saying. In response, Fitz said that "anybody that would fuck that [Deputy Mockler] is too lazy to jack off."

When Deputy Mockler learned of this incident she filed a complaint with Chief Deputy Randy Amundsen. Amundsen and Sergeant Wray Jacobs investigated Mockler's complaint. Jacobs chose not to interview all of the people who were present at the incident. Captain Harold Amidon, Commander of the Internal Affairs Unit ("IAU"), was not involved in this investigation. Amidon testified that the investigation by Amundsen and Jacobs did not comply with MCSO's usual procedures for investigating a complaint.

Deputy Mockler complained about this incomplete and informal investigation to Sheriff Robert Skipper. *fn2 After this day after his suspension in order to make up the lost day's pay.

After Deputy Mockler filed her complaint against Deputy Fitz, her supervisor told her that she should "dot her i's and cross her t's." She thereafter was subjected to increased disciplinary action. For example, Fitz obtained one of Mockler's custody reports and complained about its quality with her supervisor. Deputy Van Dyke also forwarded one of Mockler's reports to Fitz, who forwarded it to IAU for review. Mockler was verbally ...


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