1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 1 – DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 IN THE CIRCUIT COURT FOR THE STATE OF OREGON IN AND FOR THE COUNTY OF MULTNOMAH DAVID BARRON, Plaintiff, v. CITY OF PORTLAND, a municipal corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 24CV29169 DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT Claim Not Subject to Mandatory Arbitration Fee Authority: ORS 21.160(1)(e) Filing fees waived pursuant to ORS 20.140 For its Answer to Plaintiff’s Third Amended Complaint, Defendant City of Portland (“City”) responds to Plaintiff’s Third Amended Complaint as follows: PARTIES 1. Answering ¶¶ 1-5, admitted as stated. 2. Answering ¶ 6, City admits that it can be found liable under the Oregon Tort Claims Act (“OTCA”) for the torts of its employees acting within the course and scope of the employment relationship, but admits no liability in this action. Any further allegations are denied as stated. /// /// 5/27/2025 3:56 PM 24CV29169 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 2 – DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 3. Answering ¶ 7, denied as stated. As adjudicated by Judge Russell in two separate court orders on City’s Motions to Dismiss, Plaintiff failed to give actual or formal tort claim notice. City admits that Plaintiff’s Original Complaint may function as a form of tort claim notice and that conduct articulated in the Complaint and occurring within the 180 days prior to the filing of the Complaint may be preserved for subject matter jurisdiction purposes. Any further allegations are denied as stated. JURISDICTION AND VENUE 4. Answering ¶ 8, City admits that venue is proper and that the Court has personal jurisdiction over the City. Any further allegations are denied as stated. GENERAL ALLEGATIONS 5. Answering ¶ 9, denied as stated. 6. Answering ¶¶ 10-11, admitted as stated. 7. Answering ¶ 12, denied as stated. 8. Answering ¶ 13, City admits that HRAR 2.02 specifically (and not all 90+ HRARs) includes the language quoted by Plaintiff at ¶ 13. Any further allegations are denied as stated. 9. Answering ¶ 14, this is a statement which does not require a response. To the extent a response is required, ¶ 14 is denied as stated. 10. Answering ¶ 15, denied as stated. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 3 – DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 11. Answering ¶ 16, denied as stated. City avers that HRAR 2.02 speaks for itself. 12. Answering ¶¶ 17-20, denied as stated. 13. Answering ¶ 21, to the extent that Plaintiff’s allegations refer to the Portland City Auditor’s June 2022 report, City admits that the Auditor’s Office issued a report regarding PF&R. The report speaks for itself. Any further allegations are denied as stated. 14. Answering ¶¶ 22-25, denied as stated. PLAINTIFF’S EARLY CAREER 15. Answering ¶ 26, admitted as stated. 16. Answering ¶ 27, denied as stated. 17. Answering ¶¶ 28-29, denied as stated. 18. Answering ¶ 30, admitted as stated. 19. Answering ¶ 31, City is without information sufficient to form a belief regarding Plaintiff’s subjective assessment of his satisfaction with work and dedication to serving the community and therefore denies the same. Any further allegations are denied as stated. 20. Answering ¶ 32, admitted as stated. 21. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 4 – DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 Answering ¶¶ 33-36, City is without information sufficient to form a belief as to the veracity or falsity of these paragraphs, and therefore denies them on those grounds. 22. Answering ¶ 37, City admits that Plaintiff successfully completed his probationary period as a Lieutenant. Any further allegations are denied as stated. 23. Answering ¶ 38, admitted as stated. 24. Answering ¶¶ 39-41, City is without information sufficient to form a belief regarding Plaintiff’s subjective assessment of his efforts, satisfaction with work, or his desired career trajectory and therefore denies the same. Any further allegations are denied as stated. LACK OF PROMOTION 25. Answering ¶ 42, admitted as stated. 26. Answering ¶ 43, City is without information sufficient to form a belief regarding what hearsay rumors Plaintiff heard or claims to have heard and therefore denies the same. Any further allegations are denied as stated. 27. Answering ¶ 44, Plaintiff does not define the term “due for promotion” which is a vague and subjective expression of expectation. City is without information sufficient to form a belief regarding dozens of individuals’ subjective expectations and therefore denies the same. Any further allegations are denied as stated. 28. Answering ¶ 45, denied as stated. / / / 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 5 – DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 29. Answering ¶ 46, City is without information sufficient to form a belief as to when Plaintiff decided to begin preparing himself for the Captain examination or began preparations and therefore denies the same. Any further allegations are denied as stated. 30. Answering ¶ 47, City admits that the promotion process required Plaintiff to pass a written exam and an assessment center. Any further allegations are denied as stated. 31. Answering ¶ 48, admitted as stated. 32. Answering ¶ 49, City admits an independent third-party proctored the assessment center. Any further allegations are denied as stated. 33. Answering ¶ 50, denied as stated. 34. Answering ¶¶ 51, City is without information sufficient to form a belief as to how Plaintiff felt and therefore denies the same. Any further allegations are denied as stated. 35. Answering ¶ 52, City admits it provided Plaintiff with his raw score. Any further allegation are denied as stated. 36. Answering ¶¶ 53-54, denied as stated. 37. Answering ¶ 55, City is without information sufficient to form a belief as to Plaintiff’s career aspirations or preparations and therefore denies the same. Any further allegations are denied as stated. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 6 – DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 38. Answering ¶ 56, City admits there were at least two Black applicants. Any further allegations are denied as stated. 39. Answering ¶¶ 57-58, denied as stated. TARGETING AND HARASSMENT 40. Answering ¶ 59, City is without information sufficient to form a belief regarding what hearsay rumors Plaintiff heard or knew and therefore denies the same. Any further allegations are denied as stated. 41. Answering ¶ 60, City is without information sufficient to form a belief about what Plaintiff said to an unnamed firefighter on an unstated date in 2018 and therefore denies the same. Any further allegations are denied as stated. 42. Answering ¶ 61, denied as stated. 43. Answering ¶ 62, denied as stated. 44. Answering ¶¶ 63-64, City is without information sufficient to form a belief about what Plaintiff said to Pahissa or Pahissa to Plaintiff in 2018 and therefore denies the same. Any further allegations are denied as stated. 45. Answering ¶ 65, City admits that it fired Pahissa. Any further allegations are denied as stated. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 7 – DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 46. Answering ¶ 66, denied as stated. 47. Answering ¶ 67, City admits that Plaintiff was moved into the fire inspector position and that at that time, it was an internal test. Any further allegations are denied as stated. 48. Answering ¶¶ 68-69, City admits that its employees were invited to a Zoom event of the title listed by Plaintiff. City admits that the event involved a roundtable conversation between Black Fire Chiefs in the Pacific Northwest. Any further allegations are denied as stated. 49. Answering ¶ 70, denied as stated. INSPECTION PRODUCTIVITY AND RETALIATION 50. Answering ¶ 71, denied as stated. 51. Answering ¶¶ 72-73, City admits that, in the past, there was a goal of 20 inspections per week, which later shifted to 20% productivity, meaning that an inspector should be engaged in inspections at least 20% of their total work time. Any further allegations are denied as stated. 52. Answering ¶¶ 74-77, City admits that Assistant Fire Marshal Jason Birch spoke to Plaintiff about his lack of productivity in a non-disciplinary conversation, recorded in Fire Information System. Any further allegations are denied as stated. /// /// /// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 8 – DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 53. Answering ¶ 78, City admits that all district inspectors with low productivity were asked to increase their productivity. City is without information sufficient to form a belief as to how Plaintiff felt and therefore denies the same. Any further allegations are denied as stated. 54. Answering ¶ 79, City admits that Plaintiff was allowed to participate in the City of Portland Mentorship Program and was paired with mentor, Andy Stevens (“Stevens”). City is without information sufficient to form a belief as to Plaintiff’s subjective assessment of his relationship with Stevens and therefore denies the same. Any further allegations are denied as stated. 55. Answering ¶ 80, denied as stated. 56. Answering ¶ 81, denied as stated. 57. Answering ¶ 82, City is without information sufficient to form a belief as to Plaintiff’s subjective emotional experience or the cause thereof and therefore denies the same. Any further allegations are denied as stated. 58. Answering ¶ 83, denied as stated. 59. Answering ¶ 84, denied as stated. 60. Answering ¶ 85, admitted as stated. /// /// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 9 – DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 61. Answering ¶ 86, City admits that the Professional Standards Manager is a role inside PF&R that is responsible for intake, investigation, and review of internal and external complaints of PF&R employee misconduct. Any further allegations are denied as stated. 62. Answering ¶ 87, City admits that Plaintiff worked with Jared Laws on a presentation regarding the Black Fire Brigade, and work he had done with the nonprofit, “Word is Bond.” Any further allegations are denied as stated. 63. Answering ¶ 88, City admits that Plaintiff applied to join the Path to Leadership program. Any further allegations are denied as stated. 64. Answering ¶ 89, denied as stated. 65. Answering ¶ 90-91, denied as stated. 66. Answering ¶¶ 92-93, City is without information sufficient to form a belief regarding what hearsay rumors or comments Plaintiff heard or claims to have heard and therefore denies the same. Any further allegations are denied as stated. 67. Answering ¶ 94, admitted as stated. 68. Answering ¶ 95, City admits that the Equity Manager role is meant to work to advance the City’s Diversity, Equity, and Inclusion goals. Any further allegations are denied as stated. /// /// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 10 – DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 69. Answering ¶ 96, City admits that Plaintiff was told that the Professional Standards Office would investigate Plaintiff’s allegations. Any further allegations are denied as stated. 70. Answering ¶ 97, City is without information sufficient to form a belief regarding what Plaintiff believed and therefore denies the same. Any further allegations are denied as stated. 71. Answering ¶¶ 98-99, City admits that Plaintiff subsequently sent an email detailing additional items of complaint in the distant past. Any further allegations are denied as stated. 72. Answering ¶ 100, denied as stated. City avers that Ms. Niedrist de Guzman’s unedited email, dated May 25, 2023, rather than Plaintiff’s excerpts, speaks for itself. 73. Answering ¶¶ 101-102, admitted as stated. 74. Answering ¶ 103, denied as stated. City avers that Ms. Niedrist de Guzman’s unedited email, dated June 28, 2023, rather than Plaintiff’s excerpts, speaks for itself. 75. Answering ¶ 104, City admits that it investigated Plaintiff’s concerns and took appropriate action. Any further allegations are denied as stated. 76. Answering ¶ 105, City is without information sufficient to form a belief regarding what hearsay rumors or comments Plaintiff heard or claims to have heard and therefore denies the same. City affirmatively denies that Ms. Rose Brock targeted Plaintiff for any inappropriate treatment. Any further allegations are denied as stated. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 11 – DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 77. Answering ¶ 106, denied as stated. 78. Answering, ¶ 107, denied as stated. ACTIONABLE PERIOD 79. Answering ¶ 108, City admits that on or about January 3, 2024, Plaintiff sent an email to Assistant Fire Marshall Michael Silva (“Mr. Silva”) indicating that he had “...serious concerns about being targeted by a few seniors. One of which admitted to coming after [Plaintiff] to another inspector and the other admitted to targeting another inspector based on their protected status.” City also admits Plaintiff sent emails to Mr. Silva on February 13, 2024; April 3, 2024; and April 4, 2024. Any further allegations are denied as stated. 80. Answering ¶ 109, City admits that HRAR 2.02 requires supervisors to report to HR any allegations of unlawful conduct based on protected class, as more fully described in HRAR 2.02. Any further allegations are denied as stated. 81. Answering ¶ 110, denied as stated. 82. Answering ¶¶ 111-112, admitted as stated. 83. Answering ¶ 113, denied as stated. 84. Answering ¶ 114, City admits Deputy Chief Wendy Stanley (“Ms. Stanley”) had access to Plaintiff’s schedule because Fire Marshal Office employees’ schedules are publicized and known throughout the office. Any further allegations are denied as stated. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 12 – DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 85. Answering ¶ 115, City admits Ms. Stanley sent emails to Plaintiff. Any further allegations are denied as stated. 86. Answering ¶ 116, City admits that on February 13, 2024, Ms. Stanley sent emails to Plaintiff. Any further allegations are denied as stated. 87. Answering ¶¶ 117-119, denied as stated. 88. Answering ¶ 120, City admits that Plaintiff participated in a Senior Fire Inspector assessment on December 24, 2024. Any further allegations are denied as stated. 89. Answering ¶¶ 121-123, denied as stated. 90. Answering ¶ 124, this is a statement which does not require a response. To the extent a response is required, ¶ 124 is denied as stated. FIRST CLAIM FOR RELIEF Violations of ORS 659.030- Discrimination 91. Answering ¶ 125, City reasserts and reincorporates its responses to ¶¶ 1-124 above as though fully set forth herein. 92. Answering ¶¶ 126-132, denied as stated. SECOND CLAIM FOR RELIEF Retaliation – ORS 659.030(1)(f) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 13 – DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 93. Answering ¶ 133, City reasserts and reincorporates its responses to ¶¶ 1-132 above as though fully set forth herein. 94. Answering ¶¶ 134-135, denied as stated. THIRD CLAIM FOR RELIEF (Intentional Infliction of Emotional Distress) 95. Answering ¶ 136, City reasserts and reincorporates its responses to ¶¶ 1-135 above as though fully set forth herein. 96. Answering ¶¶ 137-139, denied as stated. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Non-Discriminatory Reasons for Actions Taken) 97. Defendant had valid, good faith, lawful, objectively reasonable, and non- discriminatory grounds for all actions taken with respect to the terms and conditions of Plaintiff’s employment; such actions were not based on improper motive or taken for any improper purpose. SECOND AFFIRMATIVE DEFENSE (Tort Claim Limits) 98. Plaintiff is entitled to no greater relief than that provided by the terms and provisions of the OTCA, especially as to the limitation of general damages and prohibition of any punitive 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 14 – DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 damage award. Plaintiff’s recovery is limited as provided by the OTCA, ORS 30.260 through ORS 30.300. THIRD AFFIRMATIVE DEFENSE (Statute of Limitations) 99. To the extent that Plaintiff’s claims were filed or served beyond the applicable statute of limitation or the 180-day time frame permitted by the OTCA, Plaintiff cannot pursue or recover for said claims. RESERVATION OF RIGHTS 100. Defendant reserves the right to amend as provided by the civil rules, including but not limited to its rights to move the Court to amend its Answer in order to assert additional defenses as may become known to it during the course of discovery. WHEREFORE, having fully answered Plaintiff’s Third Amended Complaint, the City prays for judgment in its favor and against Plaintiff as follows: 1. For dismissal with prejudice of Plaintiff’s entire Third Amended Complaint; 2. For attorneys’ fees, costs, disbursements, and expenses that the City has incurred herein; and 3. For such other relief as the Court may deem just and appropriate. DATED this 27th day of May, 2025. BARRAN LIEBMAN LLP s/ Andrew M. Schpak Andrew M. Schpak, OSB No. 044080 aschpak@barran.com Sean P. Ray, OSB No. 075040 sray@barran.com Chris M. Morgan, OSB No. 175384 cmorgan@barran.com Attorneys for Defendant 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PAGE 1 – CERTIFICATE OF SERVICE BARRAN LIEBMAN LLP 601 SW SECOND AVENUE, SUITE 2300 PORTLAND, OR 97204-3159 PHONE (503) 228-0500 FAX (503) 274-1212 CERTIFICATE OF SERVICE I hereby certify that on the 27th day of May 2025, I served the foregoing DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT on the following parties at the following addresses: David Shannon Mary Talamantez McKean Smith 1140 SW 11 th Ave., Ste. 500 Portland, OR 97205 dshannon@mckeansmithlaw.com mary@mckeansmithlaw.com Attorney for Plaintiff by the following indicated method(s): E-Mail First-class mail, postage prepaid Electronically by the court’s eFiling system pursuant to UTCR 21.100 at the parties’ email addresses as recorded on the date of service in the eFiling system Hand-delivery s/Andrew M. Schpak Andrew M. Schpak