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Case 6:09-cv-06061-MO Document 30 Filed 01/21/10 Page 1 of 18 Page ID#: 108

Kevin T. Lafky, OSB #85263


klafky@lafky.com
Haley Percell, OSB #05345
hpercell@lafky.com
LAFKY & LAFKY
429 Court Street NE
Salem, OR 97301
Tel: (503)585-2450
Fax: (503)585-0205
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KRISTINE M. PHILLIPS,

Plaintiff, Case No. 09-CV-6061

FIRST AMENDED COMPLAINT-


v. VIOLATION OF TITLE VII;
STATE STATUTORY
DISCRIMINATION; VIOLATION OF
MARION COUNTY SHERIFF’S 42 U.S.C.§ 1983; WRONGFUL
OFFICE, a department of Marion DISCHARGE; INTENTIONAL
County, RUSS ISHAM, CHRIS INFLICTION OF EMOTIONAL
HOY, and BRONSON HOPPE, DISTRESS; BREACH OF CONTRACT;
BREACH OF THE DUTY OF GOOD
Defendants. FAITH AND FAIR DEALING

(Jury Trial Requested)


Plaintiff Alleges:

JURISDICTION

1.

Plaintiff Kristine Phillips (hereafter “Plaintiff”) asserts claims for sex discrimination,

retaliation, and hostile work environment under Title VII (42 U.S.C. § 2000e-2, 3), violation of due

process and equal protection under 42 U.S.C. § 1983 and state law sex discrimination, wrongful

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discharge, intentional infliction of emotional distress, breach of contract, and breach of the duty of

good faith and fair dealing. To assist in readability, the allegations set forth below are intended to

apply to “all times relevant” regardless of whether those allegations are set forth in the present or

past tense.

2.

Jurisdiction is conferred upon this Court by 28 U.S.C. § 1331 and brought pursuant to claims

under 42 U.S.C. § 2000e and 42 U.S.C. § 1983. Plaintiff requests a jury trial in this matter.

SUPPLEMENTAL JURISDICTION

3.

This Court has supplemental jurisdiction over Plaintiff’s state law claims pursuant to 28

U.S.C. § 1367. Plaintiff’s state law claims are so closely related to her federal law claims that they

form part of the same case or controversy under Article III of the United States Constitution.

VENUE

4.

Venue is appropriate in this Court under 28 U.S.C. § 1391 because the events giving rise to

this complaint occurred in Marion County.

5.

Plaintiff is a resident of Marion County, Oregon.

6.

Defendant, Marion County Sheriff’s Office (“Marion County”), located in Marion County,

Oregon. The Marion County Sheriff’s office is a department of Marion County, which has employed

more than 500 employees for each working day in each of twenty or more calendar weeks in the

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current or preceding calendar year. Defendant Russ Isham (“Isham”) was, at all relevant times, the

Marion County Sheriff. Defendant Chris Hoy (“Hoy”) was, at all relevant times, the Marion County

Correctional Facility Jail Commander. Defendant Bronson Hoppe (“Hoppe”) was, at all relevant

times, Sergeant of Internal Affairs for the Marion County Sheriff’s office.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

7.

Plaintiff has exhausted all administrative remedies necessary to proceed on her Title VII and

state law claims. Plaintiff timely filed complaints with the Equal Employment Opportunity

Commission (“EEOC”) and the Bureau of Labor and Industries (“BOLI”). Plaintiff received a right

to sue notice from the EEOC on January 12, 2009, and a right to sue letter was sent by BOLI on

December 9, 2008.

FACTUAL ALLEGATIONS

8.

Plaintiff began her employment with Defendant in or about October of 1992, as a Deputy

Sheriff.

9.

Plaintiff is a female who was employed by Defendant for nearly 15 years. During her

employment with Defendant, she was treated adversely in comparison to male employees.

10.

In June of 2006, Plaintiff received a written reprimand for exercising inmates as required by

federal law. Plaintiff complained about what she reasonably believed to be violations of federal law

regarding how inmates were treated in reference to allowing inmate exercise to Defendant Hoy.

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11.

Similarly situated male deputies regularly participated in the same practice of exercising the

inmates and did not receive any written reprimands.

12.

During Plaintiff’s employment with Defendant, she worked with Deputy Steve Jochums, who

is a male, where they performed their job duties as a team. In or about May 2007, Plaintiff and

Jochums restrained an inmate. As a result of this decision, Plaintiff and Jochums were disciplined

by Defendant. Plaintiff was terminated, in part, because of this act, while Jochums received only a

one day suspension.

13.

Plaintiff suffered from actions of discipline by Defendant that were different, and more

severe than her male partner, Jochums.

14.

In or about June 2007, Plaintiff and a group of male deputies detained two inmates in a

holding cell. Plaintiff and all of the male employees who were involved in this incident were

disciplined, but Plaintiff was punished differently and more severely than her male co-workers.

15.

Plaintiff’s punishment for this incident included being placed on administrative leave and

being terminated. Similarly situated male employees were not placed on administrative leave or

terminated.

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16.

Plaintiff was told that she was the only officer involved in the June 2007 incident that was

being investigated in this fashion. Plaintiff was also informed that the other male officers involved

in the June 2007 incident were being allowed to work while she was put on administrative leave.

17.

Marion County purports to use a system of progressive discipline for its officers. The alleged

system of progressive discipline was applied differently to Plaintiff than it has been applied in the

past and present to other male employees/officers.

18.

On September 28, 2007, Plaintiff was summoned to the Marion County Jail where she met

with Union Representative Dale Bradley, Mike Beach, Hoy, and Tad Larson who told her that her

job with Defendant was terminated as a result of the closing of the investigations of the June 2007

incident.

19.

As a result of her inappropriate treatment with Defendant, Plaintiff filed a union grievance

and was awarded her former position and back pay on June 9, 2008. At that time, Plaintiff had

obtained substitute employment at the Spirit Mountain Casino. Defendant Marion County ordered

plaintiff to return to work immediately, once the arbitration award was received in Plaintiff’s favor.

Plaintiff explained to agents of Marion County that she wanted to provide two weeks notice of her

intent to leave her job to her employer, Spirit Mountain Casino. Defendant Marion County told

Plaintiff that it would not allow her to give such notice, and that Plaintiff needed to return to work

at Marion County immediately. As a result, Plaintiff was forced to leave her position at Spirit

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Mountain without giving the two week notice that is required for Plaintiff to be eligible for re-

employment with Spirit Mountain. Upon her return to employment at Marion County on June 10,

2008, Plaintiff was sent home on administrative leave with pay. On June 27, 2008, Plaintiff

received a letter from Marion County stating that it intended to contest her re-employment.

Defendant Marion County did not allow Plaintiff to continue working for it at that time. As a result,

Plaintiff was unable to return to work for Spirit Mountain Casino because she had ended her job

there without the required notice.

20.

Subsequent to this determination, Defendant has refused to honor the Arbitration award, and

has withheld work hours.

21.

Plaintiff then filed a claim under the unfair labor practice act with the Employment Relations

Board.

22.

In or about January 2009, the Employment Relations Board found in favor of Plaintiff.

23.

Subsequent to this determination, Defendant still refuses to honor the arbitration award and

the Employment Relations Board award. On June 30, 2009, Plaintiff attended a mediation with

Defendant Marion County in an attempt to resolve the disputes set forth in this complaint. At the

conclusion of that mediation, Plaintiff and Marion County agreed that Plaintiff would return to work

at Marion County, and Marion County would withdraw its administrative challenge to Plaintiff’s

reinstatement. In reliance upon that agreement, Plaintiff then provided notice to her employer at the

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time, the city of Salem. As it had done before, Marion County then reneged on that agreement, and

refused to allow Plaintiff to return to work in return for dismissing its administrative appeal of

Plaintiff’s reinstatement. Marion County had also promised to pay Plaintiff her back pay and

benefits upon return to work at that time, and then reneged on that agreement as well.

FIRST CLAIM AGAINST MARION COUNTY–VIOLATION OF TITLE VII

(Sex Discrimination, 42 U.S.C. § 2000e)

24.

Plaintiff realleges paragraphs 1-23. 42 U.S.C. § 2000e provides: “it shall be an unlawful

employment practice for an employer ” to discharge an individual, “or otherwise to discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment because of such individual’s race, color, religion, sex, or national origin . . .”

25.

Plaintiff is female. During the course of Plaintiff’s employment with Defendant, Plaintiff

suffered from discrimination based on her sex. Plaintiff was repeatedly treated differently than

similarly situated male employees, including but not limited to, being placed on administrative leave

and terminated. Marion County’s continuing treatment of plaintiff in making agreements with

Plaintiff regarding her return to work, and then breaching those agreements, after Plaintiff relied

upon those agreements, constitutes continuing discrimination on the basis of Plaintiff’s sex.

26.

Defendant discriminated against Plaintiff in the terms, conditions, and privileges of her

employment on the basis of her sex. As a result of this discrimination, Plaintiff was denied

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compensation, and adversely affected Plaintiff’s terms, conditions, and privileges of her employment

in violation of 42 U.S.C. § 2000e-2(a).

27.

Plaintiff has suffered economic and non-economic damages in an amount to be determined

at trial as a result of Defendant’s sex discrimination. Plaintiff seeks recovery of all compensatory

and punitive damages provided by law and equitable relief in addition to her reasonable attorney fees

and costs pursuant to 42 U.S.C. § 1988.

SECOND CLAIM AGAINST MARION COUNTY–VIOLATION OF ORS 659A.030

(Sex Discrimination, ORS 659A.030)

28.

Plaintiff realleges paragraphs 1-27. ORS 659A.030(1)(b) provides in relevant part: “It is an

unlawful employment practice: For an employer, because of an individual’s race, religion, color, sex,

national origin . . . to discriminate against such individual in compensation or in terms, conditions

or privileges of employment.”

29.

Plaintiff is female. Defendant employed Plaintiff during the time in question. During the

course of Plaintiff’s employment with Defendant, Plaintiff suffered from discrimination based on

her sex. Marion County’s continuing treatment of plaintiff in making agreements with Plaintiff

regarding her return to work, and then breaching those agreements, after Plaintiff relied upon those

agreements, constitutes continuing discrimination on basis of Plaintiff’s sex.

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30.

Defendant discriminated against Plaintiff in the terms, conditions, and privileges of her

employment on the basis of her sex. As a result of this discrimination, Plaintiff was denied

compensation, and adversely affected Plaintiff’s terms, conditions, and privileges of her employment

in violation of ORS 659A.030.

31.

Plaintiff has suffered economic and non-economic damages in an amount to be determined

at trial as a result of Defendant’s sex discrimination. Plaintiff seeks recovery of all compensatory

and punitive damages provided by law and equitable relief in addition to her reasonable attorney fees

and costs.

THIRD CLAIM AGAINST DEFENDANTS ISHAM, HOY, AND HOPPE–VIOLATION

OF 42 U.S.C. § 1983

(Count 1–Violation of Due Process by Defendants Isham, Hoy, and Hoppe)

32.

Plaintiff realleges paragraphs 1-31. 42 U.S.C. § 1983 provides that a party shall be liable

when it “subjects, or causes to be subjected, any person of the United States . . . deprivation of any

rights, privileges, or immunities secured by the Constitution and laws of the United States.”

33.

At all times material to this complaint, Defendants Isham, Hoy, and Hoppe acted or

purported to act in the performance of official duties under state, county, or municipal law,

ordinances or regulations.

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34.

Plaintiff’s due process rights were violated by actions of Defendants Isham, Hoy, and Hoppe,

including but not limited to the following: Defendants Isham, Hoy, and Hoppe placed Plaintiff on

administrative leave for an amount of time greatly exceeding the amount of time other male

employees were placed on administrative leave; Defendants Isham, Hoy, and Hoppe refused to

provide Plaintiff with back pay and her original position, that which was awarded to her by an

Administrative Law Judge; and subsequent to this, Defendants Isham, Hoy, and Hoppe terminated

Plaintiff’s position. Defendant’s acted to violate Plaintiff’s due process rights by repeatedly agreeing

to return plaintiff to work, and then reneging on that agreement, to Plaintiff’s detriment. These

actions violated Plaintiff’s due process rights protected by the Fourteenth Amendment of the United

States Constitution. Plaintiff’s property interest was taken away in violation of Plaintiff’s due

process rights.

35.

Defendants Isham, Hoy, and Hoppe misused their official powers with a willful and

malicious intent to deprive Plaintiff of her due process rights and cause her grievous injuries thereby.

The constitutional right to Due Process under the Fourteenth Amendment was well established at

the time Defendants Isham, Hoy, and Hoppe took the aforementioned actions against Plaintiff.

Defendants Isham, Hoy, and Hoppe, in acting to deprive Plaintiff of her due process rights, acted

intentionally, knowingly, willfully, and with gross disregard to Plaintiff’s rights. Defendants Isham,

Hoy, and Hoppe’s actions towards Plaintiff, as alleged in the above mentioned paragraphs, constitute

a violation of 42 U.S.C. § 1983 for which Plaintiff is entitled to relief. The violations of 42 U.S.C.

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§ 1983 by Defendants Isham, Hoy, and Hoppe resulted in Plaintiff being deprived of her rights,

privileges, or immunities secured by the Constitution and laws of the United States.

36.

As a result of Defendants Isham, Hoy, and Hoppe violations of 42 U.S.C. § 1983, Plaintiff

has suffered economic damages in an amount to be determined at trial along with non-economic

damages in an amount to be determined at trial. Plaintiff seeks recovery of all compensatory and

punitive damages provided by law, in addition to equitable relief, reasonable attorney fees and costs

pursuant to 42 U.S.C. § 1988.

(Count 2–Violation of Equal Protection by Defendants Isham, Hoy, and Hoppe)

37.

Plaintiff realleges paragraphs 1-36. 42 U.S.C. § 1983 provides that a party shall be liable

when it “subjects, or causes to be subjected, any person of the United States . . . deprivation of any

rights, privileges, or immunities secured by the Constitution and laws of the United States.”

38.

At all times material to this complaint, Defendants Isham, Hoy, and Hoppe acted or purported

to act in the performance of official duties under state, county, or municipal law, ordinances or

regulations. Defendant Isham became Sheriff of Marion County on September 05, 2007. Defendant

Isham either made the decision himself to place Plaintiff on administrative leave and terminate

Plaintiff, or delegated that decision to Defendant Hoy. In agreeing to place Plaintiff on

administrative leave and terminate Plaintiff, Defendant Isham violated Plaintiff’s Federal

Constitution right to equal protection. Defendant Isham knew, at the time he agreed to place Plaintiff

on administrative leave, and terminate Plaintiff, that similarly situated male employees were being

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treated differently by the Sheriff’s office in respect to discipline. Defendant Hoppe, Sergeant of

internal affairs, recommended to Defendant Hoy that Plaintiff be terminated. In doing so, Defendant

Hoppe knew, or should have known, that similarly situated male employees were being treated

differently in terms of disciplinary action. Defendant Hoy recommended to Sheriff Isham that

Plaintiff be terminated. When doing so, Defendant knew, or should have known, that similarly

situated male employees were being treated differently in respect to disciplinary action. Each

individual Defendant violated Plaintiff’s rights under the Federal Constitution to be free from

differential treatment on the basis of sex. Defendant violated Plaintiff’s right to Equal Protection

under the Fourteenth Amendment.

39.

Plaintiff is female. During Plaintiff’s employment, Defendants Isham, Hoy, and Hoppe

treated Plaintiff differently than similarly situated male employees. Defendants Isham, Hoy, and

Hoppe subjected Plaintiff to disproportionate discipline than similarly situated male employees.

Plaintiff’s equal protection rights were violated by actions of Defendant including but not limited

to the following: Defendants Isham, Hoy, and Hoppe placed Plaintiff on administrative leave for a

significantly longer amount of time than other male officers were placed on administrative leave for;

Plaintiff was subjected to more severe punishment than similarly situated male employees; Plaintiff

was subjected to comments of a sexual nature; and Plaintiff was terminated for acts that similarly

situated male employees were not terminated for. These actions violated Plaintiff’s Equal Protection

rights under the Fourteenth Amendment.

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40.

Defendants Isham, Hoy, and Hoppe misused their official powers with a willful and

malicious intent to deprive Plaintiff of her equal protection rights and cause her grievous injury

thereby. The constitutional right to Equal Protection under the Fourteenth Amendment was well

established at the time Defendants took the aforementioned actions against Plaintiff. Defendants

Isham, Hoy, and Hoppe, in acting to deprive Plaintiff of her equal protection rights, acted

intentionally, knowingly, willfully, and with gross disregard to Plaintiff’s rights. Defendants Isham,

Hoy, and Hoppe actions towards Plaintiff, as alleged in the above mentioned paragraphs, constitutes

a violation of 42 U.S.C. § 1983 for which Plaintiff is entitled to relief. The violations of 42 U.S.C.

§ 1983 by Defendants Isham, Hoy, and Hoppe resulted in Plaintiff being deprived of her rights,

privileges, or immunities secured by the Constitution and law of the United States.

41.

As a result of Defendants Isham, Hoy, and Hoppe violations of 42 U.S.C. § 1983, Plaintiff

has suffered economic damages, in an amount to be determined at trial, along with non-economic

damages in an amount to be determined at trial. Plaintiff seeks recovery of all compensatory and

punitive damages provided by law, in addition to equitable relief, reasonable attorney fees and costs

pursuant to 42 U.S.C. § 1988.

FOURTH CLAIM–WRONGFUL DISCHARGE

42.

Plaintiff realleges paragraphs 1-41. Plaintiff’s employment was discharged.

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43.

Plaintiff was wrongfully discharged because Plaintiff exercised a legal right that is related

to Plaintiff’s status or role as an employee that is of important public interest.

44.

Plaintiff complained about sex discrimination. Making complaints about discrimination is

a legal right that is related to Plaintiff’s status or role as an employee. Making complaints of sex

discrimination is of important public interest to protect the rights of Plaintiff and other employees.

Plaintiff had a societal obligation to complain about sex discrimination in the work place.

45.

As a result of Defendant’s wrongful discharge of Plaintiff, Plaintiff suffered economic and

non-economic damages in amounts to be determined at the time of trial.

FIFTH CLAIM –INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

46.

Plaintiff realleges paragraphs 1-45. Defendant knew that the aforementioned conduct would

cause severe mental or emotional distress or acted despite a high degree of probability that the

mental or emotional distress would result.

47.

Defendant’s conduct caused Plaintiff severe mental or emotional distress from the

foreseeable highly unpleasant emotional reactions including fright, grief, shame, humiliation,

embarrassment, anger, disappointment, worry, and physical illness.

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48.

Defendant’s conduct was an extraordinary transgression of the bounds of socially tolerable

conduct or exceeded any reasonable limit of social toleration.

49.

As a result of Defendant’s intentional actions, Plaintiff has suffered economic and non-

economic damages in the form of severe emotional distress in an amount to be determined at the

time of trial. Plaintiff requests equitable relief along with her reasonable attorney fees and costs in

this action.

SIXTH CLAIM –BREACH OF CONTRACT AGAINST MARION COUNTY

50.

Plaintiff realleges paragraphs 1-49. When Defendant Marion County agreed to Plaintiff to

work on two occasions as described above, Defendant entered into an enforceable contract with

Plaintiff. Plaintiff reasonably relied upon Defendant Marion County’s representations made in the

context of Plaintiffs return to work. Defendant Marion County breached its agreement when it first

refused to allow Plaintiff to continue in her return to work, and second, when it refused honor its

agreement to dismiss its administrative appeal and pay Plaintiff her back pay and benefits. Plaintiff

was damaged on both occasions; first, when Plaintiff lost her employment at Spirit Mountain Casino

and could not resume her employment there, and second, when Plaintiff was again denied payment

of her back pay and benefits and the resolution of the administrative appeal.

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SEVENTH CLAIM – BREACH OF THE COVENANT OF GOOD FAITH AND FAIR

DEALING AGAINST MARION COUNTY

51.

Plaintiff realleges paragraphs 1-50. Every contract carries with it a duty of good faith and

fair dealing. Both of the instances in which Marion County agreed to return Plaintiff to work

consisted of a contractual agreement, carrying with it the covenant of good faith and fair dealing.

In behaving as described above, Marion County breached its covenant of good faith and fair dealing

toward plaintiff. As a result, Plaintiff suffered the damages described above.

WHEREFORE, Plaintiff requests the following for her claims for relief:

1. For Plaintiff’s First Claim For Relief Against Defendant: Economic and non-economic

damages in an amount to be determined at the time of trial along with equitable relief.

Plaintiff seeks recovery of all compensatory and punitive damages provided by law in

addition to her reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988.

2. For Plaintiff’s Second Claim For Relief Against Defendant: Economic and non-economic

damages in an amount to be determined at the time of trial along with equitable relief.

Plaintiff seeks recovery of all compensatory and punitive damages provided by law in

addition to her reasonable attorney fees and costs pursuant to ORS 659A.885.

3. For Plaintiff’s Third Claim For Relief Against Defendants Isham, Hoy, and Hoppe:

A. Count 1: Economic and non-economic damages in an amount to be determined at the

time of trial along with equitable relief. Plaintiff seeks recovery of all compensatory

and punitive damages provided by law in addition to her reasonable attorney fees and

costs pursuant to 42 U.S.C. § 1988.

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B. Count 2: Economic and non-economic damages in an amount to be determined at

the time of trial along with equitable relief. Plaintiff seeks recovery of all

compensatory and punitive damages provided by law in addition to her reasonable

attorney fees and costs pursuant to 42 U.S.C. § 1988.

4. For Plaintiff’s Fourth Claim of Relief Against Defendant:

A. Count 1: Economic and non-economic damages in an amount to be determined at the

time of trial along with equitable relief. Plaintiff seeks recovery of all compensatory

and punitive damages provided by law in addition to her reasonable attorney fees and

costs.

5. For Plaintiff’s Fifth Claim of Relief Against Defendant:

A. Count 1: Economic damages in an amount to be determined at trial and non-

economic damages for emotional distress in an amount to be determined at the time

of trial. Plaintiff requests equitable relief and her reasonable attorney fees and costs.

6. For Plaintiff’s Sixth Claim of Relief Against Defendant:

A. Count 1: Economic damages in an amount to be determined at trial and non-

economic damages for emotional distress in an amount to be determined at the time

of trial. Plaintiff requests equitable relief and her reasonable attorney fees and costs.

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7. For Plaintiff’s Seventh Claim of Relief Against Defendant:

A. Count 1: Economic damages in an amount to be determined at trial and non-

economic damages for emotional distress in an amount to be determined at the time

of trial. Plaintiff requests equitable relief and her reasonable attorney fees and costs.

DATED this 21st day of January, 2010.

S/Kevin T. Lafky
Kevin T. Lafky, OSB#85263
klafky@lafky.com
LAFKY & LAFKY
429 Court St. NE
Salem, Oregon 97301
503-585-2450
Of Attorneys for Plaintiff

Page 18–First Amended Complaint

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