Opinion
Civil No. 00-1592-AS
August 14, 2001
O P I N I O N
The parties have filed cross motions for summary judgment. Defendant Multnomah County (the "County") seeks summary judgment on all of the claims asserted against it by plaintiff Carie Serrano ("Plaintiff"). Plaintiff seeks summary judgment on her First Claim for Relief brought pursuant to 42 U.S.C. § 1983.
BACKGROUND
The County hired Plaintiff in June 1996 as an "on-call" Juvenile Detention Group Worker (title later changed to Custody Services Specialist) ("Specialist"). On-call Specialists are part-time employees who fill in for regular Specialists when they are on vacation, sick or attending training seminars. On-call Specialists work intermittent, irregular schedules, are paid only for the hours they work and receive no benefits. As Custody Services Manager for the County, Rich Scott had the authority to remove staff from the on-call list at any time.
As a Specialist, Plaintiff worked directly with youth housed in the Donald E. Long Home, a secure residential detention facility that houses up to 143 youths, ages 12 to 17 (the "Long Home"). The residents of the Long Home are "at-risk" youth who have been jailed because they violated the law or otherwise engaged in delinquent or antisocial behavior. The youth often have drug or alcohol problems, and histories of physical and mental abuse.
Specialists supervise the residents and act as role models with the goal of teaching the youth appropriate behavior by positive example. They are required to interact with the residents in a group setting, conduct life skills groups, share mealtimes and participate in recreational activities. In many cases, Specialists provide the residents with their first positive interaction with an adult.
Because of the disparity of power between a resident and a Specialist, the County attempts to protect the residents from abuse of such power by restricting the amount and type of contact and interaction that Specialist may have with residents, both during and after work hours. The policy that was in place at the time Plaintiff was hired provided that "[e]mployees may not pursue personal relationships with juvenile clients like becoming a Big Brother/Big Sister or Foster Parent unless such relationships are arranged through the appropriate authorized organizations" (the "Policy"). In February 1999, the Policy was updated to read "employees may not pursue personal relationships with juvenile clients unless such relationships are previously arranged and authorized through the appropriate management personnel."
In the fall of 1998, Joann Fuller, who served on the management staff of Elyse Clawson, the Director of the Department of Community Justice, received a citizen complaint alleging that Plaintiff was dating a former resident, Michael Serrano, whom she met while he was incarcerated at the Long Home. The citizen identified himself as Heinrich Ahren and indicated that Plaintiff had met his son, Henry Michael Ahren, while Henry was housed in a halfway house on Woodstock and Plaintiff was working at the halfway house as a counselor. Plaintiff and Henry later married and had a daughter. Heinrich also explained that Plaintiff was not abiding by the visitation agreement.
After investigation, it was confirmed that Serrano, who was then known as Michael E. Bennett, was incarcerated at the Long Home from August 3, 1996, through September 30, 1996, and that Plaintiff worked in Serrano's unit twelve times during that period. Fuller also uncovered a police report in which allegations were made that Serrano engaged in a game of strip poker with youth at her previous place of employment. As a result of the investigation, Plaintiff was temporarily suspended on November 29, 1999, so that the County could further investigate the allegations against Plaintiff.
Clawson referred the matter to the Sheriff's Office to investigate the possibility of a violation of criminal law. Based on the Sheriff's Office investigation, the County did not pursue any further criminal investigation of Plaintiff.
On January 14, 2000, Scott and Teresa Carroll, another Custody Services Manager for the County, met with Plaintiff to discuss the complaint and Plaintiff's conduct. Initially, Plaintiff was hesitant to answer questions about Serrano and could not remember if she had met him while working at the Long Home. Eventually, Plaintiff revealed that she had met Serrano at the Long Home, she became reacquainted with him after his release, they developed a relationship and were subsequently married. Scott reminded Plaintiff of the Policy that disallowed employees from having personal relationships with juvenile clients and then informed Plaintiff that she would be removed from the on-call list for violation the Policy. Scott decided it was in the best interest of the County to terminate Plaintiff based on her poor judgment and violation of the Policy.
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure allows the granting of summary judgment:
If the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). "[T]he requirement is that there be no genuine issue of material fact." Anthes v. Transworld Systems, Inc., 765 F. Supp. 162, 165 (Del. 1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)) (emphasis in original).
The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is absent. Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant has met its burden, the onus is on the nonmovant to establish that there is a genuine issue of material fact. Id. at 324. In order to meet this burden, the nonmovant "may not rest upon the mere allegations or denials of [its] pleadings," but must instead "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324.
An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. On the other hand, if after the court has drawn all reasonable inferences in favor of the nonmoving party, "the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).
DISCUSSION
First Claim for Relief — 42 U.S.C. § 1983
In her First Claim for Relief, Plaintiff alleges that the County violated her constitutional rights under the First and Fourteenth Amendments by terminating her employment based on her marriage to a juvenile offender. Specifically, Plaintiff asserts her constitutional right to marry, of intimate association and to privacy were all violated. Both parties seek summary judgment on this claim.
Plaintiff complains, not about the Policy itself, but more about how the Policy was applied to her situation. Plaintiff admits that:
there is substantial state interest in retaining objectivity between corrections counselors and juvenile clients. The County clearly must act to prevent favoritism or personal bias in its operations. It would be inappropriate for a parent, older sibling, or close personal friend to oversee a juvenile inmate.
Plaintiff then offered the Policy would be constitutionally acceptable if it was construed to "govern only relationships between a corrections employee and a juvenile offender who was under County supervision, or who might prospectively come under the corrections employee's supervision in the future." Plaintiff argues that the broad application of the Policy, to include a Specialist and a juvenile offender who begin dating after the juvenile has turned 18 and is no longer under County supervision, is unconstitutional.
It is undisputed that the County terminated Plaintiff for violation of the Policy. Additionally, it is undisputed that Plaintiff met Serrano while he was a resident at the Long Home, that Plaintiff and Serrano were "dating" a week or two after Serrano turned 18 and that Plaintiff and Serrano were married within three months of their first "date." A genuine issue of fact remains with regard to whether Plaintiff and Serrano had a relationship after Serrano was released from the Long Home and before he turned 18. While Plaintiff and Serrano deny any relationship during this period, the evidence presented could support a finding that some relationship existed during this period. For example, Serrano listed Plaintiff as a reference and an emergency contact person, with both her home phone and address, on an employment application dated October 8, 1996. While it may be reasonable for a former client to list a counselor as a reference, this would normally occur only if the counselor and client had some sort of relationship. The fact that Serrano wanted Plaintiff to be contacted in the event of emergency provides further evidence that Plaintiff and Serrano were closer than just a few contacts at the Long Home would indicate. Additionally, Serrano used Plaintiff's address as a his mailing address after some of his mail was stolen from his transition housing. The fact that some of his mail was stolen establishes that Serrano was getting mail. There is no explanation of how Serrano was able to pick up his mail at Plaintiff's house without coming into contact with Plaintiff.
Serrano indicated that he had known Plaintiff for three years.
Viewing the evidence in the light most favorable to the nonmoving party, Plaintiff's motion for summary judgment must fail. If the court infers from the facts before it that Plaintiff and Serrano had a personal relationship before Serrano turned 18, the County had grounds to terminate Plaintiff under her "constitutionally acceptable" construction of the Policy. Plaintiff would have been involved with Serrano, a former client, during the time that he was under County supervision and could have come under her supervision in the future, and Plaintiff's termination would be justified and constitutional.
On the other hand, viewing the evidence in the light most favorable to Plaintiff for the County's motion for summary judgment, the court would have to accept that Plaintiff had no improper contact with Serrano until after he turned 18. The court now must consider whether the Policy, when construed to cover a situation where a Specialist becomes involved with a juvenile offender within two weeks after he turns 18 and marries him three months later, is unconstitutional.
— Right to Marry
The County argues that Plaintiff is unable to establish that her marriage had any impact on its decision to terminate her and that, absent this showing, Plaintiff is unable to prove her claim that the County violated her constitutional right to marry. The Policy prohibits employees from pursuing "personal relationships" with juvenile clients. A marital union is clearly a personal relationship and would be prohibited under the Policy. Accordingly, despite the County's contentions Plaintiff's marriage was irrelevant, it would have been valid grounds for Plaintiff's termination and the court will consider the constitutionality of the Policy with regard to its restrictions on Plaintiff's right to marry.
There is no dispute that the right to marry is a fundamental right protected by the Fourteenth Amendment's Due Process Clause. Zablocki v. Redhail, 434 U.S. 374, 384, (1978) Additionally, the parties agree that "[w]hen a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." Id. at 388. However, in Zablocki, the Supreme Court acknowledged the existence of a balancing test with the severity of the burden placed on the fundamental right affecting the amount of scrutiny to be given the state interest.
* * * we do not mean to suggest that every state regulation which relates in any way to the incidents or prerequisites of marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do no significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.
Id. at 386.
In Zablocki, the Supreme Court considered a state statute requiring non-custodial parents obligated to pay child support to obtain state approval before getting a marriage license. Before the state would give its approval, the parent was required to establish that he was current on his child support obligation and that his child was not likely to become a state charge. Id. at 375. The Supreme Court held that the statute "significantly interfered" with the fundamental right to marry because it was a total ban on marriage for parents who were unable to pay child support or guaranty that their child would not become a charge of the state. Id. at 383. In that instance, the Supreme court subjected the state interest underlying the statue to "strict scrutiny", requiring the interest to be legitimate and substantial and the statute narrowly written to effectuate only those interests. Id. at 388. The court found that the statute was not effective in furthering the state interests and held the statute unconstitutional. Id. at 388-90.
In Califano v. Jobst, 434 U.S. 47 (1977), the Supreme Court upheld a social security regulation which effectively penalized a recipient of social security benefits for marrying an individual who was not then receiving social security benefits by terminating the recipient's benefits. The Supreme Court noted that the regulation terminating benefits upon marriage was not "an attempt to interfere with the individual's freedom to make a decision as important as marriage" but rather merely acted as a deterrent to marriage or financially burdened those who decided to marry anyway. Id. at 54. The Supreme Court then held that because the regulation was rationally related to the legitimate governmental interest furthered by the regulation, the regulation satisfied the applicable constitutional test. Id.
Here, the Policy did not prohibit Plaintiff from marrying. The Policy, as interpreted in this instance, merely requested that Plaintiff inform her employer if she intended to engage in a personal relationship, including marriage, with a juvenile client whom she counseled while in the custody of the County. Like the regulation considered in Califano v. Jobst, the Policy may have acted as a deterrent in some situations and, where the employee decides to ignore the Policy, may result in a financial burden if the employee is terminated as a result of the violation of the Policy. The moderate restriction placed on Plaintiff's right to marry is justified if the County interest is legitimate and the Policy is rationally related such interest.
The court notes, and the County concedes, that the constitutionality of the Policy becomes more suspect as the juvenile client ages. However, the issue before the court is limited to the facts at hand, where the juvenile client had just turned 18 when the relationship started and the marriage occurred.
Plaintiff concedes that the County has a legitimate interest in restricting personal relationships between its employees and juvenile clients. Plaintiff acknowledges that the County clearly must act to prevent favoritism or personal bias in its operations. The court also recognizes the County's legitimate interest in preventing employees from taking advantage of the power they have over their juvenile clients and maintaining professional boundaries with children entrusted to their care.
While Plaintiff concedes that the Policy is rationally related to these legitimate interests as long as the juvenile client is subject to County supervision, she appears to argue that once the juvenile client turns 18, the County's interests are no longer legitimate or the Policy no longer furthers the County's concerns. The court disagrees.
The act of a juvenile client turning 18 does not immediately erase the feelings of gratitude or vulnerability that the individual may have for his counselor when he is 17. To the contrary, the act of turning 18 and being released from the custody and supervision of the County may make the juvenile client feel even more vulnerable and in need of the employee that assisted him while in custody. As noted above, the Specialists sometimes are the first positive relationship with an adult for the juvenile client. It is infinitely reasonable for the County to continue to be concerned about juvenile clients no longer under their care and to want to protect them from employees who may take advantage of the juvenile clients heightened vulnerability.
Additionally, allowing employees and juvenile clients to become intimately involved immediately after the juvenile's attaining the age of 18 could cause problems within the County's facilities. The juvenile client could maintain a close relationship with juvenile clients that remain in the system and could encourage the employee to give his or her friends special treatment. Or the juvenile client could tell his friends that remain in custody about his relationship with the employee which would likely undermine that employee's status with her current juvenile clients and may encourage current juvenile clients to seek relationships with other employees in the hopes that the relationship will accelerate once the juvenile attains the age of 18.
Requiring employees to advise the County that they intend to become involved with a juvenile client that has been 18 for two weeks or that they intend to marry a juvenile client within three months after he has left the County's supervision is rationally related to the County's interest in protecting the juvenile from the employee's abuse of the special relationship between the juvenile and the employee and in maintaining the appropriate environment in the County's facilities. The court finds that these considerations justify the Policy as applied in this instance.
The court also notes that the Policy passes the strict scrutiny test as well. The County's legitimate interest in protecting the juvenile from an employee's abuse of the juvenile vulnerability and in maintaining the appropriate environment in the County's facilities is sufficiently important to support the Policy. Further, the Policy itself is closely tailored to effectuate only these concerns. The Policy allows employees to engage in personal relationships with juvenile clients once the appropriate agency has determined that the relationship is appropriate. Accordingly, not all relationships are barred, only those that would be harmful to the juvenile client or the County's supervision of other juvenile clients.
— Right of Intimate Association
The First Amendment, while void of any explicit right of association, has been construed to protect an individual's right to associate with others. Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). The Supreme Court has applied the standards set forth in Zablocki, supra, in determining the constitutionality of a statute which restricts an individuals right of association. Lyng v. International Union, et al., 485 U.S. 360 (1987). For the reasons discussed above, the court finds that the Policy, which imposes restrictions on an employee's right to engage in an intimate association with a former juvenile client within three months after the juvenile turns 18, is rationally related to the County's legitimate interest in protecting its juvenile clients and the sanctity of its juvenile facilities.
— Right to Privacy
The Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment protects an individual right to personal privacy. Cary v. Population Services International, et al., 431 U.S. 678 (1977). Included within this protection is an individual's right to decide who they want to marry without unjustified government interference. Id. at 684-5. The reasoning and discussion of the court with regard to the right to marry applies to Plaintiff's right to privacy claim. The County has articulated a substantial and legitimate reason for needing to know if Plaintiff intends to engage in a serious relationship, such as marriage, with a recent juvenile client. The Policy, as applied, is specifically limited to those situations in which the County's interests are at stake. The Policy requires Plaintiff to advise the County only if she is involved with a juvenile client, not to disclose all the intimate details of her relationships with other individuals.
In summary, the court finds that the Policy, as applied in this instance, is constitutional. The County is entitled to summary judgment on Plaintiff's First Claim for Relief.
Second Claim for Relief — Title VII
Plaintiff alleges in her Second Claim for Relief that the "County's decision to discharge plaintiff was in retaliation for plaintiff engaging in protected activity." The County notes that Plaintiff's retaliation claim fails because Plaintiff has failed to allege or prove that she engaged in any protected activity. Plaintiff concedes that she has failed to allege a retaliation claim but asserts that she has "made out a Title VII discrimination claim" and that she intends to amend her Title VII claim to state a "straightforward `sex discrimination'" rather than retaliation claim. The Title VII claim presently before the court is a retaliation claim. Plaintiff concedes she hasn't stated a viable retaliation claim. Consequently, Plaintiff's Second Claim for Relief should be dismissed. The court will consider a motion to amend Plaintiff's amended complaint once it is properly before the court. At this time, the court finds that the County is entitled to summary judgment on Plaintiff's Second Claim for Relief under Title VII.
Third Claim for Relief — O.R.S. 659.030
Plaintiff's Third Claim for Relief alleges that she "was subjected to discrimination and retaliation based on her sex." Plaintiff has already conceded her retaliation claim. The court will now address Plaintiff's sex discrimination claim.
Oregon statutes, which prohibit employers from discriminating on the basis of "race, religion, color, sex, national origin, marital status or age" were adopted as the state's counterpart to Title VII. Similarly, Oregon courts have adopted the standard for establishing a prima facie case of sex discrimination under Title VII as the standard under Oregon law. Henderson v. Jantzen, Inc., 79 Or. App. 654, 658, rev. den., 302 Or. 35 (1986) (expressly adopting the formulation in McDonnell Douglas Corp. v. Green and Texas Dept. Of Community Affairs v. Burdine as the test for O.R.S. chapter 659 actions).
In order to prove a prima facie case of discrimination under Title VII, a plaintiff may base her case on direct evidence of discriminatory intent, or on a presumption arising from the factors such as those set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Tarin v. County of Los Angeles, 123 F.3d 1259, 1263-64 (9th Cir. 1997). Generally stated, the factors are: (1) membership in a protected class; (2) qualifications for the job or satisfactory performance of the job; (3) an adverse employment decision; and (4) treatment different from those similarly situated outside of the protected class. McDonnell Douglas, 411 U.S. at 802. Once a plaintiff proves a prima facie case under McDonnell Douglas, a presumption of discrimination is created which a defendant may overcome by articulating a legitimate, non-discriminatory reason for its actions. In order to survive summary judgment, plaintiff must then show that the defendant's reason was merely pretext. Tarin at 1264. The plaintiff must produce "specific, substantial evidence of pretext" in response tothe County's evidence of nondiscriminatory reasons. Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994). Plaintiff must prove by a preponderance of the evidence that the proffered reasons are pretext, that is, a discriminatory reason more likely motivated the employer's action. E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir. 1989).
Here, Plaintiff can undeniably prove the first three elements. With regard to the fourth element, that she was treated differently from similarly situated males, Plaintiff presents evidence, by affidavit, that five male Specialists had personal relationships with juvenile clients. Plaintiff states in her affidavit that four of these male Specialists were not disciplined in any manner and that one was not suspended or terminated. In response, the County states in its reply memorandum that the male Specialists Plaintiff refers to were permanent employees and were subject to progressive discipline requirements, whereas Plaintiff was an on-call employee terminable at will. The County also points out that four of the five situations cited did not involve an intimate relationship with a juvenile client and that the one male Specialist who was intimately involved with a juvenile client was suspended pending investigation and never returned to work.
The information provided by the County about the five situations cited by Plaintiff would establish that Plaintiff was not similarly situated to the five male Specialists and would prevent Plaintiff from proving the fourth element of her claim sex discrimination. However, the County has not provided any evidentiary support for the statements made in its reply memorandum. In the absence of an affidavit or declaration or other form of evidence rebutting Plaintiff's evidence, the court must consider Plaintiff's statements about the five male Specialists to be true and find that she has established a prima facie case for sex discrimination under Oregon law.
The court is willing to entertain a second summary judgment motion addressing Plaintiff's Third Claim for Relief if the County is able to rebut Plaintiff's evidence by affidavit, declaration or other form of evidence.
The County then argues that it "has stated legitimate reasons for discharging plaintiff, most notably because her conduct caused management to lose confidence that she would maintain professional boundaries in her future dealings with the youth in her care." While this may be a legitimate reason for terminating Plaintiff, the County had the same legitimate reason to terminate the five male Specialists involved in personal relationships with juvenile clients who were not disciplined. The County has not presented any evidence on why Plaintiff was terminated when the five male Specialists were not.
Plaintiff has presented sufficient evidence in support of her claim for sex discrimination under Oregon law. The County's motion for summary judgment on this claim must be denied.
Fourth Claim for Relief — O.R.S. 659.030
In her Fourth Claim for Relief, Plaintiff alleges that the County discriminated and retaliated against her based on her marital status. Again, Plaintiff has failed to allege that she engaged in a protected act and, consequently, has failed to state a claim for retaliation. With regard to Plaintiff's claim for discrimination based on marital status, the court questions whether the term marital status, as found in O.R.S. 659.030, applies to the situation at hand.
The term "marital status" differentiates between those employees who are married and those employees who are not. Accordingly, a viable claim for marital status discrimination would state that a married employee was treated different than a single employee. Plaintiff has not made that allegation. Here, Plaintiff complains that she was terminated because she married a juvenile client. Consequently, her claim is based on the fact that she married a specific individual, not that she is married.
Even assuming Plaintiff is able to base her marital status discrimination claim on her marriage to Serrano, she is unable to establish a prima facie case of marital status discrimination. To prove a prima facie claim of marital status discrimination, Plaintiff must establish: (1) membership in a protected class; (2) qualifications for the job or satisfactory performance of the job; (3) an adverse employment decision; and (4) treatment different from those similarly situated outside of the protected class. Here, Plaintiff has adequately alleged the first three elements but has failed to offer evidence that she was treated differently than single Specialists who were involved in personal relationships with juvenile clients. In the absence of such evidence, Plaintiff's claim for marital discrimination fails.
CONCLUSION
Defendant's motion (40) for summary judgment is GRANTED with regard to Plaintiff's First, Second and Fourth Claims for Relief and DENIED with regard to Plaintiff's Third Claim for Relief. Plaintiff's motion (44) for summary judgment is DENIED.