Folkema v. City of Tillamook

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MOLLY FOLKEMA, Plaintiff, v. CITY OF TILLAMOOK, LYNN LOTHMAN, RAYMOND RAU, JAMY CHRISTENSEN, and NATHAN GEORGE, Defendants.

No. 3:23-cv-00122-AN

United States District Court, D. Oregon

November 2, 2023

OPINION AND ORDER

Adrienne Nelson United States District Judge

Plaintiff Molly Folkema ("Folkema") brought this action against defendants City of Tillamook (the "City") Raymond Rau ("Rau"), Jamy Christensen ("Christensen") and Nathan George ("George"), (collectively, the "City defendants") and Lynn Lothman ("Lothman") alleging discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C §§ 2000e et seq. and Oregon Revised Statute ("ORS") § 659A.030, employment discrimination on the basis of whistleblower status in violation of ORS § 659A.199 and ORS § 659A.203, employment discrimination on the basis of initiating or aiding criminal or civil proceedings in violation of ORS § 659A.230, intentional infliction of emotional distress, battery, and negligent retention.

On April 10, 2023, Lothman and the City defendants filed separate partial motions to dismiss and to strike portions of the complaint. Def. Lothman's Mot. to Dismiss ("Lothman's Mot."), ECF [12]; City Defs.' Mot. to Dismiss ("City Defs.' Mot."), ECF [13]. After reviewing the parties' pleadings, the Court finds that oral argument will not help resolve this matter. Local R. 7-1(d). For the reasons stated herein, the motions are DENIED.

LEGAL STANDARD

A. Motion to Dismiss

To survive a motion to dismiss for failure to state a claim, a complaint must allege "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Fed R. Civ. P. 12(b)(6). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Court "must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the nonmoving party." Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014). Bare assertions that amount to mere "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Iqbal, 556 U.S. at 681.

In ruling on a (12)(b)(6) motion to dismiss, a court may consider only "allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). A court may also consider "a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is unquestioned." Id.

B. Motion to Strike

Federal Rule of Civil Procedure ("FRCP") 12(f) permits a court to strike from a pleading "any redundant, immaterial, impertinent, or scandalous matter" before any responsive pleading. Generally, motions to strike are "disfavored and infrequently granted." Legal Aid Servs. of Or. v. Legal Servs. Corp., 561 F.Supp.2d 1187, 1189-90 (D. Or. 2008). "'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.'" Biggs v. City of St. Paul, No. 6:18-cv-506-MK, 2019 WL 1114868, at *1 (D. Or. Mar. 8, 2019) (quoting Contreras, ex rel Contreras v. County of Glen, 725 F.Supp.2d 1157, 1159 (E.D. Cal. 2010)).

BACKGROUND

A. Factual Background

The following facts are taken from the complaint and assumed to be true for the purposes of the motions.

Plaintiff alleges that while employed as Office Manager of the City of Tillamook Police Department ("TPD"), she was sexually harassed by defendant Lothman, a TPD police officer. Compl., ECF [1], ¶¶ 16, 22-24, 27-32, 37.

In January 2019, Lothman was assigned to work in the TPD office and developed a friendship with plaintiff, who was often the only other person present in the office. Id. ¶¶ 17-19. On March 24, 2019, Lothman returned to his regular duty on the "graveyard shift," but continued to frequent the office before and after his shifts to spend time with plaintiff. Id. ¶ 21.

In the fall of 2019, while alone in the office with plaintiff, Lothman rubbed a tattoo on plaintiff's leg. Id. ¶ 22. He later apologized for this conduct. Id. Sometime after this incident, Lothman gave plaintiff a handwritten note stating, among other things, that Lothman's wife had seen text messages between him and plaintiff, that Lothman was "choosing his wife," and that Lothman "wanted to grab [p]laintiff and have his way with her." Id. ¶ 23.

In January 2020, Lothman switched from the graveyard shift to the day shift, which permitted him to see plaintiff more frequently in the office. Id. ¶ 24.

On May 1, 2020, Lothman sent plaintiff a text message stating that after talking with his wife, he could no longer text with plaintiff, and that all contact must be work-related and by TPD phone or email. Id. ¶ 31. That month, plaintiff began making complaints to then-TPD Chief of Police Terrance J. Wright ("Wright") about harassment and unwanted contact by Lothman. Id. ¶ 25. Wright investigated Lothman and told him to stop sending plaintiff text messages outside of work and warned him to "be careful with humor shared around or with [p]laintiff." Id. ¶ 26.

Despite this warning, Lothman continued to make "unwanted physical advances toward [p]laintiff[;]" Lothman would "hug [p]laintiff, kiss [p]laintiff's neck, rub [p]laintiff's leg or thigh, [and] rub [p]laintiff's shoulders," and on some occasions would attempt to touch her collarbones and chest. Id. ¶¶ 2728. In July 2020, Lothman told plaintiff that he loved her. Id. ¶ 29. He then told other TPD employees that he was having an affair with plaintiff. Id. ¶ 29. From May through August 12, 2020, Lothman continued to send text messages to plaintiff's personal phone stating, amongst other things, that he was sorry for his conduct, that he loved plaintiff, that he took advantage of plaintiff's kindness, and that plaintiff "blow[s] most women out of the water! (Winking face, tongue out emoji)." Id. ¶ 32.

Plaintiff continued to complain to Wright about Lothman. Id. ¶ 33. On August 12, 2020, Lothman told plaintiff that she was at risk of termination because she was being investigated for having an inappropriate relationship with a TPD officer. When plaintiff asked Wright about Lothman's statements, he informed her that no such investigation was being conducted. Id. ¶ 34. Lothman was issued a written reprimand later that month for violations including sexual harassment, dishonesty, and intimidating and harassing plaintiff. Id. ¶ 35. He was warned that further violations could result in discipline, up to and including termination. Id.

Shortly after being reprimanded, Lothman was investigated for searching through plaintiff's desk without her consent. Id. ¶ 36. Lothman claimed that he discovered love notes to plaintiff from another coworker in her desk, and plaintiff believes he told other coworkers about these notes. Id.

On another occasion, for which no date is provided in the complaint, Lothman reached into plaintiff's blouse and touched her breast. Id. ¶ 37. On October 24, 2020, plaintiff reported this incident to TPD Lieutenant Erica Bomar ("Bomar"), who interviewed plaintiff about her allegations against Lothman and escalated them to Wright. Id. ¶¶ 38, 40. The incident was also reported to the Oregon State Police and the Tillamook County District Attorney, although no criminal charges were ultimately filed. Id. ¶¶ 41, 4445. Lothman was placed on administrative leave pending an investigation. Id. ¶ 42.

In February 2021, defendant George, the Tillamook City Manager, hired a private investigator to conduct an investigation into plaintiff's allegations against Lothman. Id. ¶ 47. Plaintiff was interviewed by the private investigator in the presence of defendant Christensen, the Human Resources Director for the City. Id. ¶ 48.

That same month, plaintiff had a conversation with two TPD officers in which she allegedly referred to TPD dispatchers as "a bunch of bitches." Id. ¶¶ 49, 53. This conversation was overheard by dispatcher Lacey Larson ("Larson"), who confronted plaintiff. Id. ¶¶ 49-50. The City placed both plaintiff and Larson on administrative leave. Id. ¶¶ 51-52. Plaintiff alleges that Larson's leave notice included an indication that she would return to work, while plaintiff's notice did not provide a reason for the leave or a return date. Id. Both plaintiff and Larson sent emails to George relating their versions of the conversation and subsequent confrontation. Id. ¶¶ 53-54.

On March 26, 2021, the private investigator report regarding Lothman's conduct was completed and submitted to George. Id. ¶ 56.

On April 12, 2021, Larson was returned to work. Id. ¶ 59.

On April 14, 2021, plaintiff received a notice of potential termination from George. Id. ¶ 60. The notice included several possible grounds for termination, including the "bunch of bitches" comment, misstating hours worked on a specific day, "unprofessional interactions" between plaintiff and a Detective Barnett, and disregarding an order not to contact City employees during her leave when plaintiff spoke to Wright and stated that she intended to bring chocolate to the TPD office. Id.

Plaintiff submitted a tort claim notice to the City and George on April 19, 2021, alleging sexual harassment, discrimination, and retaliation. Id. ¶ 61.

On May 3, 2021, plaintiff was terminated by the City. Id. ¶ 63.

On June 4, 2021, Christensen sent an email stating that plai...