Opinion
3:24-cv-00413-JR
08-05-2024
J.S.S., Plaintiffs, v. NORTHERN OREGON CORRECTIONS, a regional correctional facility; and JOSUE PEREZ, Defendants.
FINDINGS & RECOMMENDATION
JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE
Plaintiff, J.S.S., brings this action alleging violation of her civil rights pursuant to 42 U.S.C. § 1983 along with state law claims for hostile work environment, negligence, battery, and intentional infliction of emotional distress against defendants Northern Oregon Corrections (NORCOR) and Corrections Deputy Josue Perez. Defendant Perez moves to dismiss the hostile work environment and aiding and abetting claim against him. For the reasons stated below, the motion is denied.
ALLEGATIONS
Plaintiff alleges she was incarcerated at NORCOR from May 21, 2023, to July 26, 2023. Complaint (ECF 1) at ¶¶ 11, 19. Plaintiff asserts defendant Perez began grooming her from the beginning of her incarceration by seeking assignments in the units to which she was assigned during this time. Id. at ¶¶ 13, 15, 16. Plaintiff alleges unwanted sexual contact such as touching her hands and buttocks. Id. at ¶ 13, 17.
Plaintiff alleges defendant Perez pressured her to let him pick her up upon release. Id. at ¶ 18. Plaintiff asserts that when Perez picked her up, he, without consent, stuck his hand in her pants and penetrated her with his finger. Id. at ¶ 19. At that point, she convinced him to stop and let her out of the car which was already near the parole office to which she was headed. Id.
Plaintiff alleges a hostile work environment claim against defendant NORCOR pursuant to Or. Rev. Stat. § 659A.030 and that defendant Perez aided, abetted, incited, compelled, and coerced the unlawful employment practices of NORCOR in violation of Or. Rev. Stat. § 659A.030(1)(g). Defendant Perez asserts NORCOR was not plaintiff's employer for purposes of the statute and therefore these claims must be dismissed.
DISCUSSION
It is an unlawful employment practice for any person, whether an employer or an employee, to aid, abet, incite, compel, or coerce discrimination against an individual in compensation or in terms, conditions, or privileges of employment because of the individual's sex. Or. Rev. Stat. § 659A.030(1)(b) and (1)(g). “Employer” means any person who in this state, directly or through an agent, engages or uses the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed. Or. Rev. Stat. § 659A.001(4)
Plaintiff alleges NORCOR is an “employer” within the meaning of Oregon's unlawful employment discrimination statutes. Complaint (ECF 1) at ¶ 21. Indeed, plaintiff alleges toward the end of her stay at NORCOR, she moved to the worker dorm so she could get a job, then moved to another block and worked at night cleaning, and that defendant Perez came to the same units and sought out work assignments there so he could be near plaintiff. Id. at ¶ 15, 16. Under the plain language of the statute it is plausible that defendant NORCOR employed plaintiff as there could be a set of facts, inferred from the allegations in the complaint, showing it controlled the means by which it used plaintiff's services such as providing cleaning services. See State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042, 1050 (2009) (if after examining the text, context, and legislative history of a statute the intent remains clear, it is unnecessary to resort to general maxims of statutory construction to aid in resolving any uncertainty in the statute).
Defendant does not provide the Court with any legislative history but does offer an Oregon Worker's compensation case excluding an inmate from such benefits and an Equal Employment Opportunity Commission (EEOC) adjudication in which the Commission found inmates are not employees for purposes of Title VII, upon which Oregon's statute is modeled.
Oregon's anti-discrimination statutes are analyzed under the same framework as claims bought under Title VII. El v. United Parcel Serv., Inc., 2020 WL 2616397, at *3 (D. Or. May 22, 2020).
In Matter of Comp. of Westfall, the Oregon Court of Appeals determined “The sheriff is authorized to require the inmates to work because of their status as prisoners, not because they are employes. They are essentially conscripts. Matter of Comp. of Westfall, 57 Or.App. 459, 462, 645 P.2d 561, 562 (1982). However, the Court analyzed the inmate's entitlement to benefits under the Worker's compensation statutes specifically noting:
For inmates to be covered under the Act for injuries while performing “authorized employment” the county must file a notice of election with the director of the Workers' Compensation Department. “Authorized employment” means the employment of an inmate on work authorized by the governing body of the county. ORS 656.041(1)(a). Reading these statutes together, it is clear that the legislature did not intend to include inmates performing work authorized by ORS 169.320 as subject workers under the Workers' Compensation Act.Id. 57 Or.App. at 462-63, 645 P.2d 561 at 562. The Court did not make a determination as to whether an inmate providing personal services is employed for purposes of Or. Rev. Stat. 659A.030. Nonetheless, defendant notes that plaintiff did not provide “personal services” because she was meeting her obligation under the Oregon Constitution mandate that all inmates participate in work-program assignments. Or. Const. Art. I § 41. Thus, defendant contends the Westfall case provides persuasive reasoning in interpreting Oregon's definition of employer to exclude inmates. However, this Court is not persuaded that “personal service” as used in Oregon's definition of “employer” excludes mandated service. The text and context of the statute does not indicate that “personal” and “mandated” are mutually exclusive.
The EEOC determined in one of its adjudications:
The issue of whether Title VII applies to inmates in this situation appears to be one of first impression. The Act itself is silent in this regard. Further, research has disclosed neither reference to this matter in the legislative history of the Act or its amendments nor court decisions addressing this question. In the absence of legislative guidance or judicial precedent, it is the Commission's view that this issue should be decided by determining, on the basis of the facts, (1) whether, with respect to the work he performed while incarcerated, the Charging Party may be considered to have been an employee of the Respondent for purposes of the Act...
[T]he work relationship between the Charging Party and the Respondent contained various elements commonly present in an employment context. Clearly, control over the work performed by the Charging Party rested with the Respondent, a factor that would normally strongly indicate the existence of an employer-employee relationship. Moreover, the Charging Party received a regular monthly compensation for his work and performed his job on the Respondent's premises. Further, the Respondent furnished him with the necessary tools and equipment, regulated his work hours, and supervised his work. However, these individual factors must be considered in light of the total circumstances of the relationship between the Charging Party and the Respondent.
That relationship arose from the Charging Party's having been convicted and sentenced to imprisonment in the Respondent's correctional institution. The primary purpose of their association was incarceration, not employment. Consequently, the Respondent exercised control and direction not only over the Charging Party's work performance but over the Charging Party himself. The conditions under which he performed his job were, thus, functions of his confinement to the Respondent's institution under its control. While the Charging Party received monetary compensation for his work, that compensation was minimal and, arguably, the greater consideration was the opportunity to earn “good time” credits toward reducing his sentence. Finally, although the Charging Party was not required to work for the Respondent, his very job flowed from his incarceration and was dependent on his status as a prison inmate. Considering these circumstances as a whole, we are persuaded that the reality of the work relationship between the Respondent and the Charging Party was not one of employment. Therefore,
we find that, while the Respondent is an employer within the meaning of the Act, the Charging Party was not an employee of the Respondent.
Equal Emp. Opportunity Comm'n, EEOC Dec. No. 86-7 (1986); 1986 WL 38836 at *2-3.
Plaintiff notes the Court need not resort to Title VII cases because Title VII does not define employer or employee unlike the Oregon statute which does define those terms. The EEOC appears to agree that NORCOR would fall under the definition of employer and Oregon's statute defines employee simply, through exclusion: “'Employee' does not include any individual employed by the individual's parents, spouse, or child or in the domestic service of any person.” Or. Rev. Stat. § 659A.001(3). The legislative intent in defining employer is broad and appears to exclude only a limited category of people from the definition of employee. The statute does not exclude inmates in its definition. Certainly, plaintiff would not “work” for NORCOR absent incarceration, but nothing in the statute indicates that mandated work performed under the control of an entity who uses the “personal” service is excluded from the definition of employer and employee.
Defendant also asserts plaintiff fails to allege sufficient facts demonstrating an employer/employee relationship but given that defendant himself notes that the Oregon Constitution mandates inmate work, it cannot reasonably be argued that NORCOR did not engage or use the personal service of plaintiff.
Defendant appears to suggest it is unclear from the complaint whether an employer/employee relationship existed or whether an independent contractor situation existed in that he cites case law regarding the right to control as the elements the factual allegation need address. The Court finds it is plausibly alleged, and a trier of fact could reasonably infer from those facts, that NORCOR had the right to control plaintiff, furnished the equipment, and had the right to assign or dis-assign jobs at will. See Oregon Country Fair v. Natl. Council on Comp. Ins., 129 Or.App. 73, 78, 877 P.2d 1207 (1994) “[f]our factors are material in determining whether an employer has the right to control an individual: (1) direct evidence of the right to, or the exercise of, control; (2) the method of payment; (3) the furnishing of equipment; and (4) the right to fire.” The only factor that appears to be missing from the complaint is the method of payment. However, the Oregon constitution effectively addresses all of the factors with respect to inmate work. See Or. Const. art. I, § 41(2-6).
Finally, defendant argues he cannot aid and abet himself. However, the complaint alleges defendant Perez aided and abetted NORCOR in creating the hostile work environment. Accordingly, the motion to dismiss is denied.
CONCLUSION
Defendant Josue Perez's motion to dismiss (ECF 9) should be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.