Case 3:14-cv AC Document 1 Filed 04/01/14 Page 1 of 46 Page ID#: 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

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1 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 1 of 46 Page ID#: 1 OSB# sean.riddell@live.com Attorney At Law 4411 NE TILLAMOOK ST. Portland, OR Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Portland Division ROD EDWARDS, vs. Plaintiff, MULTNOMAH COUNTY SHERIFF DANIEL STATON; DIRECTOR OF HUMAN RESOURCES FOR THE MULTNOMAH SHERIFF S OFFICE JENNIFER OTT; MULTNOMAH COUNTY SHERIFF S OFFICE UNDER SHERIFF TIM MOORE; MULTNOMAH COUNTY SHERIFF S OFFICE CHIEF DEPUTY JASON GATES; by and through the MULTNOMAH COUNTY SHERIFF S OFFICE, a political subdivision of MULTNOMAH COUNTY, OREGON Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 14-CV-531 COMPLAINT (Civil Rights Violations; 1st Amendment/14 th Amendment violations; Substantive Due Process Violations; Procedural Due Process Violations; Equal Protection; Retaliation; Intentional Interference with Employment 42 U.S.C Damages at least $1,000, or an amount to be proven at trial Jury Trial Demanded COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff, by and through his attorney,, bring this Complaint herein and state and allege as follows: /// 1 COMPLAINT

2 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 2 of 46 Page ID#: 2 INTRODUCTORY STATEMENT 1. This action is filed by Plaintiff under 42 U.S.C. 1983, and ORS , for events from JANUARY 2003 PRESENT, alleging denial of equal protection, substantive due process, procedural due process; freedom of speech and association, in violation of the First and Fourteenth Amendments of the United States Constitution, and state tort claims of Interference with Employment and Negligence. 2. This court has jurisdiction over Plaintiff s claims of violations of Federal Constitutional Rights under 28 U.S.C and Venue is proper under 28 U.S.C. 1391(b), in that one or more of the defendants reside in the District of Oregon and Plaintiff s claims for relief arose in this district. 4. The court has jurisdiction over Plaintiff s pendent state law claims under 28 U.S.C PARTIES 5. At all material times Plaintiff ROD EDWARDS ( Plaintiff ) is a resident of Vancouver, Washington and employed in Multnomah County, Oregon. /// /// 2 COMPLAINT

3 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 3 of 46 Page ID#: 3 6. At all material times, DANIEL STATON ( Defendant Staton ) was the elected Sheriff of Multnomah County, Oregon. Defendant Staton was working under the color of law on behalf of the Multnomah County Sheriff s Office ( MCSO ), an agency of Multnomah County, Oregon ( County ). Defendant Staton is a final policy maker for MCSO. Defendant Staton is sued in his individual capacity. 7. At all material times, JENNIFER OTT ( Defendant Ott ) was Director of Human Resources for MCSO, in the State of Oregon, working under the color of law on behalf of MCSO, an agency of Multnomah County in the State of Oregon. Defendant Staton supervised Defendant Ott in her capacity as the Director of Human Resources. Defendant Ott is a final policy maker for MCSO. Defendant Ott is sued in her individual capacity. 8. At all material times, TIM MOORE ( Defendant Moore ) was the Under Sheriff for MCSO, in the State of Oregon, working under the color of law on behalf of MCSO, an agency of Multnomah County in the State of Oregon. Defendant Staton supervised Defendant Moore in his capacity as the Under Sheriff for MCSO. Defendant Moore is a final policy maker for MCSO. Defendant Moore is sued in his individual capacity. 9. At all material times, JASON GATES ( Defendant Gates ) was Chief Deputy of the Enforcement Division for MCSO, in the State of Oregon, working under the color of law on behalf of MCSO, an agency of Multnomah County in the State of Oregon. Defendant Staton 3 COMPLAINT

4 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 4 of 46 Page ID#: 4 supervised Defendant Gates in his capacity as Chief Deputy of the Enforcement Division. Defendant Gates is a final policy maker for MCSO. Defendant Gates is sued in his individual capacity. 10. At all material times, MCSO was a political subdivision of Multnomah County, Oregon. Defendant Multnomah County is a suable person under 42 U.S.C At all times relevant to this Complaint, MCSO and Defendant County, employed Defendant Staton, Defendant Ott, Defendant Moore and Defendant Gates. At all times relevant to this Complaint, Defendant Staton, Defendant Ott, Defendant Moore and Defendant Gates, were acting pursuant to Defendant MCSO s and Defendant County s laws, customs, and/or policies. As the employer of Defendant Staton, Defendant Ott, Defendant Moore and Defendant Gates and Defendant County is vicariously liable for all of the tortuous and unconstitutional acts and omissions of the defendants committed within the course and scope of their employment, pursuant to ORS All Defendants acted under color of law at all times relevant to this Complaint. 12. Plaintiffs are entitled to an award of attorneys fees and costs, pursuant to 42 U.S.C /// /// /// 4 COMPLAINT

5 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 5 of 46 Page ID#: 5 FACTUAL ALLEGATIONS 13. MCSO hired plaintiff in 1994 as an enforcement deputy sheriff. Plaintiff s assignments in the last 17 years include, but are not limited to: Patrol, Court Services, River Patrol, Civil Unit, Inspections Unit, SWAT, Dive Team, Use of Force, Instructor and Firearms Instructor. 14. Defendant Staton is the elected Sheriff for Multnomah County. The Multnomah County Sheriff is an employee of Multnomah County. 15. Defendant Staton assigned Defendant Ott as the Director of Human Resources for MCSO. Defendant Staton supervised Defendant Ott for the entirety of her assignment as the Director of Human Resources. MCSO s Director of Human Resources is an employee of Multnomah County. 16. Defendant Staton assigned Defendant Moore as the Under Sheriff for MCSO. Defendant Staton supervised Defendant Moore for the entirety of his assignment as the Under Sheriff. MCSO s Under Sheriff is an employee of Multnomah County. 17. Defendant Staton assigned Defendant Gates as the Chief Deputy for MCSO. Defendant Staton supervised Defendant Gates for the entirety of his assignment as the Chief Deputy. MCSO s Under Sheriff is an employee of Multnomah County. /// 5 COMPLAINT

6 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 6 of 46 Page ID#: At all times relevant, plaintiff is a disabled veteran for purposes of ORS Veteran Preference in Public Employment and entitled to veteran s preference for a disabled veteran when seeking promotions in a civil service position by a public employer. 21. At all times relevant, Defendants Multnomah County and MCSO are Public Employers for purposes of ORS Veteran Preference in Public Employment. 22. Plaintiff applied for, and was denied, a promotion to the rank of Sergeant in Plaintiff was informed by then Chief Deputy Van Dyke that MCSO was only obligated to give him veteran preference points. Plaintiff was also informed by then Captain Nielson, that while Veteran Preference was applied to the 2002 Sergeant promotion process in accordance with Oregon Statutes, the preference was not honored because is gave an unfair advantage to veterans. 24. Plaintiff then filed the appropriate civil actions in Multnomah County, Oregon to address MCSO s unfair 2002 Sergeant promotion process. 25. In 2005 Plaintiff re-applied for promotion to Sergeant and MCSO selected plaintiff for promotion at that time. /// 6 COMPLAINT

7 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 7 of 46 Page ID#: Plaintiff and MCSO settled plaintiff s civil lawsuit in 2006 with MCSO and Multnomah County providing plaintiff with a financial settlement in exchange for plaintiff s release and dismissal of the pending lawsuit. 27. There is sufficient information and belief to allege that Defendant Ott and Defendant Moore were employed by MCSO in management positions during the time period plaintiff filed, pursued or settled his 2003 civil suit related to the application of veteran s preference during the promotion process. 28. Oregon Revised Statute (ORS) mandates that a public employer shall grant a preference to a veteran or disabled veteran who seeks promotion to a civil service position. The public employer shall add 5 preference points to a veteran s score and 10 preference points to a disabled veteran s score. 29. ORS further states that a public employer who uses a promotion system that does not result in a score shall devise a system that gives preference to the veteran or disabled veteran. 30. MCSO adopted the use of an Assessment Center in 2003 for the promotions of sergeants and lieutenants. The Assessment Center is a standardized evaluation of a candidate s 7 COMPLAINT

8 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 8 of 46 Page ID#: 8 behavior, knowledge, skills and abilities. The Assessment Center is absent any documentation or objective criteria for the allocation of veteran preference or disabled veteran preference. 31. At all times relevant, Multnomah County s employee website states that veteran preference will be applied to Multnomah County promotions with a qualified veteran receiving five points and a qualified disabled veteran receiving ten points. 32. Defendant Ott stated in an dated March 13, 2010 that if plaintiff applied for a promotion to lieutenant, plaintiff would receive veteran preference during the promotion process. 33. MCSO posted a job announcement for a Law Enforcement Lieutenant on September 5, 2012 that did not provide any information regarding the application of veteran s preference during the promotion process. 34. Plaintiff confirmed with an employee of MCSO s Human Resources Department on September 12, 2012 that veteran preference applied to the September 5, 2012 lieutenant announcement. 35. Plaintiff applied for the September 5, 2012 lieutenant opening, submitted all the required application materials and requested consideration of his status as a disabled veteran. 36. MCSO announced on October 25, 2012 that plaintiff was not selected for promotion. 8 COMPLAINT

9 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 9 of 46 Page ID#: On October 29, 2012 plaintiff requested a written explanation of how veteran s preference was applied to the September 5, 2012 lieutenant promotion process. 38. Defendant Ott responded in writing on November 21, 2012 stating, in part, plaintiff s points were applied as he went through the process. The written explanation was absent any description of how a veteran verse a disabled veteran would receive the legally required preference. 39. On January 8, 2013 MCSO, through Defendant Ott, published an announcement of an open Corrections Lieutenant position. Unlike the September 5, 2012 announcement, the January 8, 2013 announcement stated with specificity that veteran s preference would apply to the process and gave instructions on how qualified veterans and disabled veterans could apply for the preference. 40. On January 23, 2013 plaintiff, through his attorney, sent the County Attorney for Multnomah County the appropriate tort claim notice in compliance with the Oregon Tort Claims Act and ORS On or about January 24, 2013 plaintiff filed a complaint regarding the September 5, 2012 lieutenant promotion process with the Oregon Bureau of Labor and Industries Civil Rights 9 COMPLAINT

10 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 10 of 46 Page ID#: 10 Division claiming violations of ORS Veteran Preference in Public Employment and Retaliation for his previous civil lawsuit challenging the 2002 Sergeant promotion process. 42. On June 19, 2013 after an investigation where defendants were afforded the opportunity to provide evidence and refute plaintiff s allegation the Oregon Bureau of Labor and Industries Civil Rights Division published a Notice of Substantial Evidence. The Oregon Bureau of Labor and Industries found substantial evidence that the Multnomah County Sheriff s Office engaged in an Unlawful Employment Practice in violation of ORS Veteran Preference in Public Employment and 43. On December 17, 2013 the Oregon Bureau of Labor of Industries Administrative Law Judge Dan Rosenhouse presided over a contested case hearing regarding the defendants Unlawful Employment Practice in violation of ORS Veteran Preference in Public Employment and 44. During the hearing Defendants Ott, Moore and Gates testified on behalf of the MCSO and Multnomah County. Defendants, individually and collectively, made the following admissions under oath during the hearing: a. The promotion system used during plaintiff s application for the September 5, 2012 lieutenant opening was not documented in MCOS s employee manual or in the Multnomah County employee manual. 10 COMPLAINT

11 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 11 of 46 Page ID#: 11 b. The promotion system used during plaintiff s application for the September 5, 2012 lieutenant opening was never used before. c. The promotion system used during plaintiff s application for the September 5, 2012 lieutenant opening does not have a written explanation of how a disabled veteran receives the appropriate level of preference in the promotion process. d. The promotion system used during plaintiff s application for the September 5, 2012 lieutenant opening does not have a written explanation of how a veteran receives the appropriate level of preference in the promotion process. e. There is no written explanation of how either a disabled veteran or a veteran receives preference during the written portion of the September 5, 2012 lieutenant promotion process. f. There is no written explanation of how either a disabled veteran or a veteran receives preference during the interview portion of the September 5, 2012 lieutenant promotion process. g. There is no written explanation of how either a disabled veteran or a veteran receives preference during the 360 peer evaluation portion of the September 5, 2012 lieutenant promotion process. h. There is no written explanation of how a disabled veteran or a veteran receives preference during the final selection by the Defendant Staton in consultation with Defendant Ott. i. Only three candidates were considered for the September 5, 2012 lieutenant opening. 11 COMPLAINT

12 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 12 of 46 Page ID#: 12 j. There was no written system to ensure the candidates prior disciplinary history was considered during the September 5, 2012 lieutenant promotion process. k. Defendants Ott, Gates, and Moore could not articulate why the previously used promotion selection processes were abandoned during the September 5, 2012 lieutenant promotion process. l. Defendant Gates could not state with specificity what, if any, veteran preference he afforded plaintiff during the interview, written application or in his evaluation of the 360 peer reviews. m. Defendant Moore could not state with specificity what, if any, veteran preference he afforded plaintiff during the interview, written application or in his evaluation of the 360 peer reviews. n. There was no standard, written or otherwise, used during the September 5, 2012 lieutenant promotion process for the acceptable number of returned 360 peer reviews to determine a fair and accurate sampling. o. MCSO and Multnomah County used a points based system to apply veteran preference for veterans and disabled veterans in previous promotion processes. p. MCSO and Multnomah County used a points based system to apply veteran preference for veterans and disabled veterans in promotion processes after the September 5, 2012 lieutenant promotion process. 45. On April 1, 2014 Oregon Bureau of Labor and Industries Administrative Law Judge Dan Rosenhouse published a Proposed Final Order stating in part: 12 COMPLAINT

13 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 13 of 46 Page ID#: 13 a. Sgt. Edwards successfully completed the initial application screening for the lieutenant s position; b. Sgt. Edwards, being eligible for promotion, met the minimum qualifications and any special qualifications for the lieutenant position under the Veteran s Preference Law. c. Sgt. Edwards was entitled to have the statutory veterans preference applied for his benefit; d. Respondent did not grant Sgt. Edwards a veteran s preference in the process by which he applied for a job as lieutenant because it did not devise and apply methods to afford Sgt. Edwards special consideration as a disabled veteran, as required by ORS (2)(c); e. To the extent MCSO s method of granting a veterans preference was to consider Sgt. Edwards the number one candidate going into the promotion process, that method was insufficient, under ORS for that stage of the promotion process; f. MCSO did not have a method of granting a veteran s preference at the final stage of the promotion process, when the final hiring decision was made; g. And Cease and desist from, along with its agents and employees, violating Oregon Veterans Preference law ORS FIRST CLAIM FOR RELIEF: Violation of Federal Constitutional Rights 42 U.S.C Count One: Violation of Plaintiff s Rights to Equal Protection 46. Plaintiff re-alleges all previous paragraphs. 13 COMPLAINT

14 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 14 of 46 Page ID#: Defendants, joint and severely, intentionally treated plaintiff differently based on one or more of the following reasons: malice, personal animus, his status as a veteran, his status as a disabled veteran and lacked any rational basis for the difference in treatment. Defendants actions include, but are not limited to, one or more of the following: a. Abandoning the established and previously used promotion process in order to deny plaintiff or similar situated veterans and/or a disabled veterans a fair and objective opportunity for promotion to the rank of lieutenant. b. Not employing the Assessment Center method previously used in the promotion process in order to deny plaintiff or similar situated a veterans and/or a disabled veterans a fair and objective opportunity for promotion to the rank of lieutenant. c. Not devising or using a promotion process that accurately afforded plaintiff or veterans any veteran preference as a qualified veteran during the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and d. Not using the process of applying veteran preference for a qualified veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. e. Not devising or using a promotion process that accurately afforded plaintiff or disabled veterans any veteran preference as a qualified disabled veteran during the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and f. Not devising or using a promotion process that accurately afforded plaintiff or disabled veterans any veteran preference as a qualified disabled veteran as compared 14 COMPLAINT

15 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 15 of 46 Page ID#: 15 to a qualified veteran during the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and g. Not using the process of applying veteran preference for qualified disabled veterans during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. h. Not using the process of applying veteran preference for qualified disabled veterans in comparison to a qualified veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. i. Not devising or using a promotion process that accurately afforded plaintiff or veterans any veteran preference as a qualified veteran during the written application portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and j. Not devising or using a promotion process that accurately afforded plaintiff or disabled veterans any veteran preference as a qualified disabled veteran during the written application portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and k. Not devising or using a promotion process that accurately afforded plaintiff or disabled veterans any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the written application portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and l. Not devising or using a promotion process that accurately afforded plaintiff or veterans any veteran preference as a qualified veteran during the interview portion of 15 COMPLAINT

16 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 16 of 46 Page ID#: 16 promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and m. Not devising or using a promotion process that accurately afforded plaintiff or disabled veterans any veteran preference as a qualified disabled veteran during the interview portion of the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and n. Not devising or using a promotion process that accurately afforded plaintiff or disabled veterans any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the interview portion of the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and o. Not devising or using a promotion process that accurately afforded plaintiff or veterans any veteran preference as a qualified veteran during the 360 Peer Evaluation portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and p. Not devising or using a promotion process that accurately afforded plaintiff or disabled veterans any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the 360 Peer Evaluation portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and 48. No rational person could regard the circumstances of the plaintiff as a veteran or as a disabled veteran differ from those similarly situated persons to a degree that would justify the 16 COMPLAINT

17 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 17 of 46 Page ID#: 17 differential treatment plaintiff received from defendants as a basis for a legitimate government policy. 49. Defendants difference in treatment of plaintiff, veterans and disabled veterans from other similarly situated was intentional and not by mistake. 50. Defendant Staton is liable for Defendants Ott, Gates, and Moore as their supervisor for the actions of Defendants Ott, Gates, and Moore in that Defendant Staton knew or should have known that Defendants Ott, Gates and Moore were involved in the wrongful acts set forth above and that Defendants Ott, Gates and Moore would likely deprive plaintiff, veterans and/or disabled veterans of their constitutional rights, and in that Defendant Staton failed to act to prevent Defendants Ott, Gates and Moore from engaging in wrongful conduct. 51. As a result of the above-described actions, plaintiff suffered damages totaling at least $1 million including lost wages and benefits, lost of economic potential, harm to reputation, emotional distress and other amounts to be proven at trial. 52. Plaintiff has incurred attorney fees and costs in pursuing this claim. Count Two: Denial of Rights to Substantive Due Process 53. Plaintiff re-alleges all previously alleged paragraphs. /// /// /// 17 COMPLAINT

18 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 18 of 46 Page ID#: Among other acts, Defendants deliberately collectively or individually engaged in one or more, but not limited to the following acts in violation of plaintiff s substantive due process rights as an individual, veteran or disabled veteran: a. Abandoning the established and previously used promotion process in order to deny plaintiff, a veteran and/or a disabled veteran a fair and objective opportunity for promotion to the rank of lieutenant. b. Not employing the Assessment Center method previously used in the promotion process in order to deny plaintiff, a veteran, and/or a disabled veteran a fair and objective opportunity for promotion to the rank of lieutenant. c. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the promotion process for d. Not using the process of applying veteran preference for a qualified veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. e. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran during the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and f. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran as compared 18 COMPLAINT

19 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 19 of 46 Page ID#: 19 to a qualified veteran during the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and g. Not using the process of applying veteran preference for a qualified disabled veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. h. Not using the process of applying veteran preference for a qualified disabled veteran in comparison to a qualified veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. i. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the written application portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and j. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran during the written application portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and k. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the written application portion of promotion process for l. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the interview portion of 19 COMPLAINT

20 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 20 of 46 Page ID#: 20 promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and m. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran during the interview portion of the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and n. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the interview portion of the promotion process for o. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the 360 Peer Evaluation portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and p. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the 360 Peer Evaluation portion of promotion process for 55. The above described actions violated plaintiff s right to substantive due process. The actions of Defendants jointly and severally were intentional and without justification or right. The actions of Defendants of depriving plaintiff the ability to perform his career, a fair and 20 COMPLAINT

21 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 21 of 46 Page ID#: 21 objective opportunity to advance to the rank of lieutenant, and the right to the statutory preference as a veteran and disabled veteran, violates the very concept of decency, shocks the conscience and were deliberate actions in violation of the 14 th Amendment. They deprived plaintiff of liberty interests without a fair, objective and legally compliant promotion process, and they constitute a deliberate indifference to plaintiff s constitutional rights. 56. Defendant Staton is liable as Defendants Ott, Gates and Moore supervisor for the actions of Defendants Ott, Gates and Moore in that Defendant Staton knew or reasonably should have known that Defendants Ott, Gates and Moore were involved in wrongful acts set forth above and that Defendants conduct would likely deprive plaintiff of his constitutional rights, and in that Defendant Staton failed to act to prevent Defendants Ott, Gates and Moore from engaging in such wrongful conduct. 57. As a result of the above-described actions, plaintiff has suffered damages totaling at least $1 million, including lost wages and benefits, lost economic potential, harm to reputation, emotional distress, and incurrence of attorney fees and other costs. 58. Plaintiff has incurred attorney fees and costs in pursuing this claim. Count Three: Denial of Rights to Procedural Due Process 59. Plaintiff re-alleges all previously alleged paragraphs. /// /// /// 21 COMPLAINT

22 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 22 of 46 Page ID#: Among other acts, Defendants deliberately, collectively or individually, engaged in one or more, but not limited to the following acts in violation of plaintiff s procedural due process rights as an individual, veteran or disabled veteran: a. Abandoning the established and previously used promotion process in order to deny plaintiff, a veteran and/or a disabled veteran a fair and objective opportunity for promotion to the rank of lieutenant. b. Not employing the Assessment Center method previously used in the promotion process in order to deny plaintiff, a veteran, and/or a disabled veteran a fair and objective opportunity for promotion to the rank of lieutenant. c. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the promotion process for d. Not using the process of applying veteran preference for a qualified veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. e. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran during the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and f. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran as compared 22 COMPLAINT

23 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 23 of 46 Page ID#: 23 to a qualified veteran during the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and g. Not using the process of applying veteran preference for a qualified disabled veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. h. Not using the process of applying veteran preference for a qualified disabled veteran in comparison to a qualified veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. i. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the written application portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and j. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran during the written application portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and k. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the written application portion of promotion process for l. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the interview portion of 23 COMPLAINT

24 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 24 of 46 Page ID#: 24 promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and m. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran during the interview portion of the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and n. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the interview portion of the promotion process for o. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the 360 Peer Evaluation portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and p. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the 360 Peer Evaluation portion of promotion process for 61. Plaintiff has a protected property interest in his employment and livelihood. This interest is subject to procedural due process protection by the 14 th Amendment. Plaintiff has a right not 24 COMPLAINT

25 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 25 of 46 Page ID#: 25 to be deprived of this employment or adversely effected in his employment without due process or to be subject to abuse at his employment without proper recourse. 62. Defendants herein engaged in illegal, malicious, and wrongful conduct, together and individually, intentionally deprived Plaintiff s secured due process rights. Defendants conduct was well defined by law and each defendant knew or reasonably should have known that their conduct was not only well below the standard of law described herein, but was illegal per se. 63. Defendant Staton is liable as Defendants Ott, Gates and Moore supervisor for the actions of Defendants Ott, Gates and Moore in that Defendant Staton knew or reasonably should have known that Defendants Ott, Gates and Moore were involved in wrongful acts set forth above and that Defendants conduct would likely deprive plaintiff of his constitutional rights, and in that Defendant Staton failed to act to prevent Defendants Ott, Gates and Moore from engaging in such wrongful conduct. 64. As a result of the above-described actions, plaintiff has suffered damages totaling at least $1 million, including lost wages and benefits, lost economic potential, harm to reputation, emotional distress, and incurrence of attorney fees and other costs. 65. Plaintiff has incurred attorney fees and costs in pursuing this claim. Count Four: Retaliation in Violation of the 1 st Amendment 66. Plaintiff re-alleges all previously alleged paragraphs. 25 COMPLAINT

26 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 26 of 46 Page ID#: Plaintiff s filing of a civil lawsuit in 2003 is a protected act under the 1 st and 14 th Amendment. 68. Plaintiff s filing of a civil lawsuit in 2003 was a motivating factor for one or more of the following defendants: Defendant Staton; Defendant Ott; Defendant Gates; and Defendant Moore when devising the promotion process and/or participating in the promotion process for the September 5, 2012 lieutenant opening. Defendants retaliated against plaintiff s exercise of free speech in one or more, but not limited to the following ways: a. Abandoning the established and previously used promotion process in order to deny plaintiff, a veteran and/or a disabled veteran a fair and objective opportunity for promotion to the rank of lieutenant. b. Not employing the Assessment Center method previously used in the promotion process in order to deny plaintiff, a veteran, and/or a disabled veteran a fair and objective opportunity for promotion to the rank of lieutenant. c. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the promotion process for d. Not using the process of applying veteran preference for a qualified veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. e. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran during the 26 COMPLAINT

27 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 27 of 46 Page ID#: 27 promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and f. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran as compared to a qualified veteran during the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and g. Not using the process of applying veteran preference for a qualified disabled veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. h. Not using the process of applying veteran preference for a qualified disabled veteran in comparison to a qualified veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. i. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the written application portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and j. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran during the written application portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and k. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the written application portion of promotion process for 27 COMPLAINT

28 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 28 of 46 Page ID#: 28 l. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the interview portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and m. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran during the interview portion of the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and n. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the interview portion of the promotion process for o. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the 360 Peer Evaluation portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and p. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the 360 Peer Evaluation portion of promotion process for 28 COMPLAINT

29 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 29 of 46 Page ID#: Defendant Staton is liable as Defendants Ott, Gates and Moore supervisor for the actions of Defendants Ott, Gates and Moore in that Defendant Staton knew or reasonably should have known that Defendants Ott, Gates and Moore were involved in wrongful acts set forth above and that Defendants conduct would likely deprive plaintiff of his constitutional rights, and in that Defendant Staton failed to act to prevent Defendants Ott, Gates and Moore from engaging in such wrongful conduct. 70. As a result of the above-described actions, plaintiff has suffered damages totaling at least $1 million, including lost wages and benefits, lost economic potential, harm to reputation, emotional distress, and incurrence of attorney fees and other costs. 71. Plaintiff has incurred attorney fees and costs in pursuing this claim. Count Five: Violation of Right to Free Speech Public Employee 72. Plaintiff re-alleges all paragraphs previously alleged. 73. Plaintiff s filing of a civil lawsuit in 2003 is a protected act under the 1 st and 14 th Amendment. 74. Plaintiff s filing of a civil lawsuit in 2003 was a matter of public concern. 75. Plaintiff s filing of a civil lawsuit in 2003 was a motivating factor for one or more of the following defendants: Defendant Staton; Defendant Ott; Defendant Gates; and Defendant Moore 29 COMPLAINT

30 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 30 of 46 Page ID#: 30 when devising the promotion process and/or participating in the promotion process for the September 5, 2012 lieutenant opening. Defendants retaliated against plaintiff s exercise of free speech in one or more, but not limited to the following ways: a. Abandoning the established and previously used promotion process in order to deny plaintiff, a veteran and/or a disabled veteran a fair and objective opportunity for promotion to the rank of lieutenant. b. Not employing the Assessment Center method previously used in the promotion process in order to deny plaintiff, a veteran, and/or a disabled veteran a fair and objective opportunity for promotion to the rank of lieutenant. c. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the promotion process for d. Not using the process of applying veteran preference for a qualified veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. e. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran during the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and f. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran as compared to a qualified veteran during the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and 30 COMPLAINT

31 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 31 of 46 Page ID#: 31 g. Not using the process of applying veteran preference for a qualified disabled veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. h. Not using the process of applying veteran preference for a qualified disabled veteran in comparison to a qualified veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. i. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the written application portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and j. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran during the written application portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and k. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the written application portion of promotion process for l. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the interview portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and 31 COMPLAINT

32 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 32 of 46 Page ID#: 32 m. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran during the interview portion of the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and n. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the interview portion of the promotion process for o. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the 360 Peer Evaluation portion of promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and p. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran in comparison to a qualified veteran during the 360 Peer Evaluation portion of promotion process for 76. Defendant Staton is liable as Defendants Ott, Gates and Moore supervisor for the actions of Defendants Ott, Gates and Moore in that Defendant Staton knew or reasonably should have known that Defendants Ott, Gates and Moore were involved in wrongful acts set forth above and that Defendants conduct would likely deprive plaintiff of his constitutional rights, and in that 32 COMPLAINT

33 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 33 of 46 Page ID#: 33 Defendant Staton failed to act to prevent Defendants Ott, Gates and Moore from engaging in such wrongful conduct. 77. As a result of the above-described actions, plaintiff has suffered damages totaling at least $1 million, including lost wages and benefits, lost economic potential, harm to reputation, emotional distress, and incurrence of attorney fees and other costs. 78. Plaintiff has incurred attorney fees and costs in pursuing this claim. Count Six: Denial of Rights to Equal Protection, Substantive Due Process, Procedural Due Process and Freedom of Speech Local Governing Body Based Upon Official Policy, Practice, or Custom (Multnomah County Sheriff s Office and Multnomah County) 79. Plaintiff re-alleges all previously alleged paragraphs. 80. Defendants actions and policies constituted an unwarranted denial of plaintiff s constitution rights, to one or more of, Equal Protection, Substantive Due Process, Procedural Due Process and/or Freedom of Speech in one or more, but not limited to the following ways: a. Abandoning the established and previously used promotion process in order to deny plaintiff, a veteran and/or a disabled veteran a fair and objective opportunity for promotion to the rank of lieutenant. b. Not employing the Assessment Center method previously used in the promotion process in order to deny plaintiff, a veteran, and/or a disabled veteran a fair and objective opportunity for promotion to the rank of lieutenant. 33 COMPLAINT

34 Case 3:14-cv AC Document 1 Filed 04/01/14 Page 34 of 46 Page ID#: 34 c. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the promotion process for d. Not using the process of applying veteran preference for a qualified veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. e. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran during the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and f. Not devising or using a promotion process that accurately afforded plaintiff or a disabled veteran any veteran preference as a qualified disabled veteran as compared to a qualified veteran during the promotion process for lieutenant in violation of ORS Veteran Preference in Public Employment and g. Not using the process of applying veteran preference for a qualified disabled veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. h. Not using the process of applying veteran preference for a qualified disabled veteran in comparison to a qualified veteran during a promotion process published on the Multnomah County website and in the Multnomah County Employee manual. i. Not devising or using a promotion process that accurately afforded plaintiff or a veteran any veteran preference as a qualified veteran during the written application 34 COMPLAINT