Whitley v. City of Portland et al

Filing 171

Findings & Recommendation - Defendants' motions for summary judgment on Whitley's state and federal gender discrimination claims, wrongful discharge claim, and equal protection claim should be GRANTED, and Defendants' motion for summar y judgment on Whitley's federal and state retaliation claims and state whistleblower claim should be DENIED. Objections to the Findings and Recommendation are due by 6/4/2009. If objections are filed, a party may file a response to those objections within fourteen days of the filing date of the objections. Signed on 5/20/09, by Magistrate Judge John V. Acosta. (peg)

IN THE UNITED STATES DISTRICT COURT FOR T H E DISTRICT OF OREGON

N I C O L E WHITLEY, Plaintiff,

CV.07-1114-AC FINDINGS A N D RECOMMENDAn O N

v.
CITY O F P O R T L A N D a n d R O B E R T DAY, Defendants.

ACOSTA, Magistrate Judge:
Findings a n d Recommendation

Defendants the City o f Portland ("City") and Sergeant Robelt Day ("Sgt. Day") move for

P A G E 1 - FINDINGS A N D R E C O M M E N D A T I O N

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summary j u d g m e n t o n all o f plaintiff Nicole Whitley's ("Whitley") claims: ( I ) gender discrimination; (2) retaliation; (3) wrongful discharge; and (4) equal protection. First, Whitley a l l e g e s t h a t t h e C i t y treated h e r d i f f e r e n t l y t h a n s i m i l a r l y s i t u a t e d m a l e employees, a n d t h a t h e r gender impacted the C i t y ' s decision to terminate her employment, which was i n violation o f Title VII and OR. REV. STAT. 659A.030(1)(a) and (b). (p1.'s Mem. in Opp. I . ) Second, Whitley claims that she was terminated by the City because she reported inappropriate and sexually harassing behavior, and that such a termination is retaliatOly under Title VII and OR. REv. STAT. 659.030(f), and is a violation o f OR. REv. STAT. 659A.203. ( P I . ' s Mem. in Opp. I . ) Third, Whitley alleges that h e r termination gives rise to a common l a w wrongful discharge claim either due to h e r repOlis o f gender discrimination and retaliation or because she used the C i t y ' s disability insurance system. (PI. ' s Mem. i n Opp. 1.) Finally, Whitley alleges that Sgt. Day denied her equal protection o f the l a w in violation o f 42 U.S.C. § 1983. (PI.'s Mem. i n Opp. I . ) For the following reasons, the C i t y ' s m o t i o n for summary j u d g m e n t o n Whitley's gender discrimination claims should be granted, the C i t y ' s motion for summalY judgment on Whitley's retaliation and whistleblower claims should be denied, the C i t y ' s motion for summalY judgment o n Whitley's wrongful discharge claim should be granted, and Sgt. D a y ' s motion for summalY j u d g m e n t on Whitley's equal protection claim should be granted.
Factual B a c k g r o u n d

A. W h i t l e y ' s Training Experience The Portland Police Bureau ("Bureau") hired Whitley on October 20, 2005. (Babnick Aff. l

IAll o f t h e exhibits offered by Whitley, with the exception o f Exhibit 35 which was offered with her reply memorandum, were attached to the Concise Statement o f Material Facts filed by the City and Sgt. Day. Initially, the Babnick and Johnston affidavits authenticating the majority o f the P A G E 2 - FINDINGS A N D R E C O M M E N D A T I O N {MEP}

Ex. 3 at 1.) O n January 9, 2006, Whitley went to the Depal1ment o f Public Safety Standards and Training Basic Academy (the "Academy") to begin basic police training. (Babnick Aff. Ex. 3 at 1.) Whitley received five hours o f orientation training at the Academy and received the Student Conduct Guide (the "Guide"). (Babnick Aff. Ex. 3 at 1; Johnston Am. Aff. Ex. 5.) Whitley signed a statement to "attest t h a t I have read, understood and subscribe to the Student Conduct Guide." (Johnston Am. Aff. Ex. 5.) The Guide sets forth four standards o f conduct relevant to these motions. F i r s t , i t e x p l a i n s t h a t t h e A c a d e m y h a s " Z e r o T o l e r a n c e " for " [ d ] i s h o n e s t y , l y i n g o r a t t e m p t i n g t o c o n c e a l v i o l a t i o n s . " ( J o h n s t o n A m . Aff. E x . 4 a t 2 . ) A v i o l a t i o n o f t h i s p o l i c y w i l l r e s u l t i n "[i]mmediate and appropriate corrective action by A c a d e m y s t a f f who will do what is necessmy to p r e v e n t r e c u n e n c e o f t h e m i s c o n d u c t . " ( J o h n s t o n A m . Aff. E x . 4 a t 2 . ) S e c o n d , t h e G u i d e s t a t e s that the " m i n i m u m passing score for all written examinations is 7 5 % . " (Johnston Am. Aff. Ex. 4 at 3.) Third, "[s]tudents are required to attend all scheduled Academy classes," and students are "responsible for notifying their agency supervisor i n advance o f any absence." (Johnston Am. Aff. Ex. 4 a t 3 . ) " A n y u n a u t h o r i z e d a b s e n c e m a y r e s u l t i n d i s m i s s a l f r o m t h e A c a d e m y . " ( J o h n s t o n A m . Aff. Ex. 4 at 3.) Finally, " [ s ] t u d e n t s are expected to be s e a t e d i n the classroom 5 minutes p r i o r to the start o f each class. Tardiness demonstrates disrespect and is unacceptable." (Johnston Am. Af£ Ex. 4 at 3.) Impol1atttly, the Depm1ment o f Public Safety Standards and Training ( " D P S S T " ) sets

exhibits r e f e r e n c e d the exhibit by number and indicated that they were attached to the respective affidavit. I n response to a telephone call from the cou11 pointing o u t the e n o r in the affidavits, a n amended affidavit o f Jennifer J o h n s t o n w a s filed correcting the reference to the exhibits to indicate t h a t they were attached to the Concise S t a t e m e n t o f Material Facts, n o t the affidavit. While an amended affidavit George Babnick w a s not filed, i t is c l e a r that t h e exhibits referred to in the Babnick Affidavit are those filed w i t h t h e Concise Statement o f Material Facts. The cou11 finds that t h e e x h i b i t s r e f e r e n c e d i n t h e B a b n i c k a f f i d a v i t , as w e l l as t h o s e r e f e r e n c e d g e n e r a l l y i n t h e D a y affidavit, h a v e b e e n a d e q u a t e l y a u t h e n t i c a t e d o n t h e record. A l l o f t h e c i t a t i o n s to t h e e x h i b i t s w i l l b e t h r o u g h the a u t h e n t i c a t i n g a f f i d a v i t s , n o t t h e C o n c i s e S t a t e m e n t o f M a t e r i a l Facts. P A G E 3 - FINDINGS A N D R E C O M M E N D A T I O N {MEP}

the standards and training requirements for police officers. OR. REV. STAT. 181.640. U n d e r O r e g o n law, a police officer who does not successfully complete the A c a d e m y cannot w o r k a s a p o l i c e officer. OR. REv. STAT. 181.655(1)(b). In J a n u a r y o f 2 0 0 6 , W h i t l e y b e g a n d e m o n s t r a t i n g p e r f o r m a n c e d e f i c i e n c i e s i n b a s i c t r a i n i n g a t the Academy. O n January 18, 2006, Whitley failed to s h o o t qualifYing scores o n day three o f h a n d g u n firearms training. (Babnick Aff. Ex. 7.) O n J a n u m y 2 4 , 2 0 0 6 , Whitley failed shotgun f i r e a r m s t r a i n i n g b e c a u s e she w a s " u n a b l e t o d e m o n s t r a t e basic p r o f i c i e n c i e s i n m a n i p u l a t i n g , shooting, and the safe handling o f the shotgun." (Babnick Aff. Exs. 8, 9.) When Lieutenant

R a y m o n d R a u ("Lt. R a u " ) , W h i t l e y ' s s u p e r v i s i n g t r a i n i n g c o o r d i n a t o r a t t h e A c a d e m y , r e p o r t e d W h i t l e y ' s f i r e a r m d e f i c i e n c i e s t o S g t Day, he i n d i c a t e d t h a t i t " w a s n ' t a b i g i s s u e " a n d t h a t t h e B u r e a u could j u s t " r e m e a d [her] u p there and tell me [ s h e ' s ] good." (Babnick Aff. Ex. 3 at 2; O l d h a m Dec. Ex. 6 at 3-4.) O n F e b r u a r y 1,2006, Lt. R a u c a l l e d W h i t l e y o u t o f c l a s s a n d i n t o a m e e t i n g . ( W h i t l e y D e p . 23: 12-14.) During the meeting, Lt. R a u i n f o n n e d Whitley " t h a t an instructor at E V O C [Emergency Vehicle Operation Course]) was offended because [Whitley'S] nipples were showing through [her] shirt." (Whitley Dep. 23 :23-25.) Lt. Rau asked Whitley w h a t she w a s wearing, i f she w a s wearing a j o g g i n g bra, and i f she h a d a bra. (Whitley Dep. 23:25-24:2) Lt. R a u then suggested that Whitley t r y " m a y b e s o m e t y p e o f l a y e r i n g " t o d e a l w i t h t h e i s s u e . ( O l d h m n Dec!. E x . 6 a t 9 . ) W h i t l e y w a s in shock, w a s " b l o w n away," and did not k n o w h o w to respond to Lt. R a u ' s comments. (Whitley Dep. 2 4 : 2 8 - 1 9 . ) S h e c o u l d n o t b e l i e v e t h a t she w a s b e i n g a s k e d t h e s e q u e s t i o n s ; s h e f e l t

u n c o m f o r t a b l e a n d t h a t s h e w a s b e i n g s i n g l e d out. ( W h i t l e y D e p . 2 4 : 2 0 - 2 3 . ) Whitley described h e r meeting and conversation w i t h Lt. R a u to Field Training Officer Joe

P A G E 4 - FINDINGS A N D R E C O M M E N D A T I O N

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Schilling ("Officer Schilling") o n February 2, 2006. (Schilling Dep. 129: 15-16.) Officer Schilling "innnediately" reported his conversation with Whitley to Sgt. Day because it "was a significant event at the [A]cademy for one o f [the] probationmy officers, and part o f [his] j o b description is to convey those things along to [his] superior officer." (Schilling Dep. 135:25; 136: 11-15.) In a inter-office memorandum from Officer Schilling to Sgt. Day dated Febmary 2, 2006, Officer Schilling explained that Whitley told him she " f e l t 'singled-out' b y Lt. Rau, was offended by having someone talk to h e r about her breasts and was now self-conscious around the instructor staff. [She] fuliher offered that she felt like wearing her j a c k e t all the time." (Oldham Dec!. Ex. 18.) On the evening o f F e b r u m y 2 , 2 0 0 6 , Sgt. Day and Whitley had a conversation i n which they discussed Whitley's Februmy 1 conversation with Lt. Rau. (Oldman Dec!. Ex. 23.) Whitley expressed concerns that she had offended a n instructor, was being singled out and would face problems in the future. B y the e n d o f February 3, 2006, and after various conversations between Whitley, Sgt. Day, and Lt. Rau, Whitley reported that while she still did n o t like the fact t h a t the conversation occulTed, she felt much better about the situation and that D P P S T had resolved the matter. (Oldham Dec!. Ex. 23.) Specifically, in her conversations with Sgt. Day, Whitley stated that she did n o t want to make a complaint about her meeting with Lt. Rau, but t h a t Lt. R a u ' s statements " s h o u l d n ' t have been said." (Whitley Dep. 107:3-6; (Whitley Dep. 107:3-6; Day Aff. Ex. 28 at 2.) She also expressed concern that she would be "singled out." (Day Aff. Ex. 28 at 2.) Sgt. Day asked Whitley i f t h e r e was "anything else [she would] like from [him] or the Bureau, or from DPSST" or whether she felt like they had "come to a resolution . . . . " (Day Aff. Ex. 28 a t 2.) Whitley responded " I f e e l fine n o w . . . I ' m fine with it." (Day Aff. Ex. 28 a t 2.) W h i t l e y c o n t i n u e d to d e m o n s t r a t e p e r f o r m a n c e d e f i c i e n c i e s a t t h e A c a d e m y . O n F e b r u a r y P A G E 5 - FINDINGS A N D R E C O M M E N D A T I O N {MEP}

6,2006, Whitley received a report critique from an instructor a t the A c a d e m y regarding W h i t l e y ' s first report-writing assignment. (Whitley Dep. 127: 19-23; B a b n i c k Aff. Ex. 12.) Whitley d i d n o t m e e t D P S S T standards i n content and w o r d choice, organization, or mechanics. ( J o h n s t o n Am. Aff. Ex. 12.) Whitley received a 67.4% o n h e r second written e x a m at the Academy (Babnick Aff. Ex. 14 at 2), w h i c h is a failing grade. (Johnston Am. Aff. Ex. 4 at 3.) Whitley passed all o f h e r classr o o m subjects b u t was ranked forty-first o u t o f forty-two students i n h e r class. ( J o h n s t o n Am. Aff. Ex. 6; D a y Aff. Ex. 14 a t 2.) Additionally, W h i t l e y e n g a g e d i n c o n d u c t t h a t v i o l a t e d p r o v i s i o n s o f the Guide. O n F e b r u a r y 2 , 2 0 0 6 , W h i t l e y w a s a s s i g n e d a u s e - o f - f o r c e r e m e d i a t i o n report. ( W h i t l e y Dep. 1 3 6 : 5 - 1 0 . ) T h e r e p o r t w a s d u e o n the m o r n i n g o f F e bm a r y 6, 2006 (Whitley Dep. 136: 13-14), b u t Whitley d i d n o t bring h e r report to class that m o m i n g . (Whitley Dep. 137:9-14.) She told Lt. R a u t h a t she left the r e p o r t at home, a n d h e r m o t h e r could e m a i l i t to her. (Whitley Dep. 137:17-21.) Lt. R a u gave W h i t l e y a n additional assignment o f a n e v e n t report to explain w h y s h e failed to t u m i n h e r use-offorce r e m e d i a t i o n r e p o r t o n time. ( W h i t l e y Dep. 1 3 7 : 1 4 - 1 5 . ) W h i t l e y u n d e r s t o o d t h a t she w a s s u p p o s e d to turn i n the e v e n t report w i t h the remediation repoli. (Whitley Dep. 138: 13-15). T h a t day, before Whitley had a chance to call h e r m o t h e r a b o u t the remediation report, s h e fell i n the A c a d e m y parking l o t a n d sustained a knee injUlY. (Whitley Dep. 139:20-23.) Whitley w e n t to the hospital that evening to h a v e h e r knee e x a m i n e d and treated, a n d missed class o n February 8, 2006. ( D a y Aff. Ex. 24.) W h i t l e y failed to contact h e r m o t h e r a n d ask her to e m a i l h e r the report. (Whitley D e p . 1 6 5 : 2 4 - 1 6 6 : 6 . ) S h e c l a i m s t h a t s h e " f o r g o t a b o u t t h e repOli" a n d " s p a c e d i t o f f . " ( W h i t l e y D e p . 1 6 6 : 5 - 9 . ) W h i t l e y d i d n o t t u r n i n e i t h e r the r e m e d i a t i o n r e p o r t o r the e v e n t r e p o r t u n t i l F e b r u m y 9, 2006. ( J o h n s t o n Am. Aff. Ex. 34.)

P A G E 6 - FINDINGS A N D R E C O M M E N D A T I O N

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Whitley was counseled for being tardy to c l a s s o n at least one occasion. O n Februmy 8, 2006, Whitley w a s late to a class. (Whitley Dep. 150:2-6.) Her tardiness violated the G u i d e ' s protocol that expects students " t o be seated i n the classroom 5 minutes prior to the start o f each class." (Johnston Am. Aff. Ex. 4 at 3.) Whitley's instructors, Trooper Snook and Sergeant Plumber ("Sgt. Plumber"), b o t h recall Whitley saying she was late to class because her sergeant, Sgt. Day, kept calling her. (Day Aff. Ex. 18; Ex. 19 at 1.) Whitley violated the requirement that she attend all optional classes for which she was registered. Whitley signed up for three optional classes, Radm' 1, Radar 2 and Lidar, all scheduled sometime between January 3 1 , 2 0 0 6 and Februmy 8, 2006. (Whitley Dep. 108:8-14.) Whitley was aware that she was required to notify either Sergeant Tate or Lt. R a u i f she would be absent from a n optional training for w h i c h she had signed up. (Whitley Dep. 109:13-18.) Nevertheless, Whitley did n o t notify either Sergeant Tate or Lt. Rau when she could not attend either Radar class. (Whitley Dep. 112:7-19.) Whitley indicated that she did n o t attend the Lidar class because she "forgot about [it]." (Whitley Dep. 117:2-13.) Whitley again failed to inform anyone that she would n o t be attending the class. (Whitley Dep. 121 :10-13; 121 :24-122:5.) On February 9, 2006, Sgt. Day asked Whitley about the reasons for her absences from the optional classes. (Day Aff. Ex. 17 a t 5-6.) Whitley told him that she missed the classes because she and her sons were sick, and her grandma was dying in hospice. (Day Aff. Ex.17 at 5-6.) O n Februmy 8, 2006, Whitley received a disability in the line o f duty form ("DlLD form") by fax from Sgt. Day relating to her knee injuty. (Whitley Dep. 152:22-153: 11.) The front o f the fax contained a note from Sgt. Day that asked Whitley to call him when she received the fOlIDS "for explanation." (Day Aff. Ex. 15; Whitley Dep. 153:10-11.) Whitley claimed that she called Sgt. Day {MEP}

P A G E 7 - FINDINGS A N D R E C O M M E N D A T I O N

and got his voicemail. (Whitley Dep. 153:20-15.) Whitley completed and signed t h e DILD fOlm o n February 15, 2006. (Johnston Am. Aff. Ex. 24.) The DILD form stated that i t is a n application for disability benefits and " w h e n signed this report becomes notice o f claim." (Johnston Am. Aff. Ex. 24.) A s a r e s u l t o f h e r knee injury, W h i t l e y w a s p h y s i c a l l y u n a b l e to r e c e i v e t r a i n i n g i n C o n S i m 1 through 4, Defensive Tactics 3 through 8, Building Searches 1 and 2, and Vehicle Stops 1 and 2. (Babnick Aff. Exs. 20-23) This lack o f training precluded Whitley from graduating from the Academy. (Whitley Dep. 300:15-22.) Because Whitley did n o t graduate from the Academy, she could n o t advance to Phase I training. (Whitley Dep. 82: 1-6.) O n February 9, 2006, Lt. R a u called Sgt. Day and reported his concerns with W h i t l e y ' s performance deficiencies. (Oldham Decl. Ex. 5.) On February 13, 2006, Officer Schilling forwarded a memorandum t o Sgt. Day in which he recommended a Probationmy PerfOlmance R e v i e w ("Review") for Whitley because o f the "repetitive nature o f h e r perfOlmance concerns i n t h e a c a d e m y setting . . . . " (Day Aff. Ex. 30 at 1-2.) In the recommendation, Officer S c h i l l i n g documented W h i t l e y ' s "perfOlmance concerns," which b e g a n o n Janumy 31, 2006. The areas o f COnCelTI were summarized as: Janumy 31, 2006: Failed to attend training class. Failed to notifY D P S S T Coordinator o f absence. Failed to notifY Bureau Supervisor o f absence. F a i l e d to a t t e n d t r a i n i n g c l a s s Failed to notifY D P S S T Coordinator o f absence. Failed to notifY Bureau Supervisor o f absence. F a i l e d to c o m p l e t e a s s i g n e d c o u r s e w o r k . Failed to submit event report as assigned b y DPSST Coordinator F a i l e d to c o m p l e t e a s s i g n e d c o u r s e w o r k . {MEP}

Februmy 1, 2006:

Februmy 6, 2006:

February 7, 2006:

P A G E 8 - FINDINGS A N D R E C O M M E N D A T I O N

February 8, 2006: February 10, 2006:

Failed to contact Sgt. Day upon paperwork receipt as directed. Failed to submit required paperwork to Sgt. Day as directed.

(Day Aff. Ex. 30 at 1-2.) There is no evidence that shows when the particular D P S S T official reported or recorded each o f the enumerated performance concems. O n F e b r u a r y 24, 2 0 0 6 , W h i t l e y m e t w i t h D i a n e A v e r y o f t h e C i t y ' s D i v e r s i t y Development!Affilmative Action Office (the "Office") to make a complaint o f sexual harassment stemming from the February 1 conversation with Lt. Rau regarding Whitley's anatomy and intimate apparel. (Babnick Aff. Ex. 29.) On March 1, 2006, the Office sent a letter to Whitley saying that it had detelmined that the information provided by Whitley " d i d n o t substantiate that [Whitley] was subjected to sexual harassment based on [her] membership in a protected class" and advising that i t declined to investigate W h i t l e y ' s complaint. (Babnick Aff. Ex. 29.) O n A p r i l S , 2006, t h e B u r e a u c o n v e n e d a R e v i e w f o r W h i t l e y " t o address p e r f o r m a n c e i s s u e s i n the following areas: Knowledge o f Bureau Rules and Procedures, Attitude towards Police Work, Field Performance: Non-Stress Conditions [and] Truthfulness." (Babnick Aff. Ex. 3 a t 1.) With the e x c e p t i o n o f t r u t h f u l n e s s , t h e p e r f o r m a n c e i s s u e s w e r e i d e n t i c a l to t h o s e o u t l i n e d i n O f f i c e r Schilling's memorandum o f February 13,2006. (Babnick Aff. Ex. 3 at 1-2.) Four Bureau employees - Captain George Babnick ("CaptainBabnick"), Lieutenant David Famous ("Lt. Famous"), Sgt. Day, and Officer S c h i l l i n g - attended the Review. (Famous Dep. 116:11-19; Oldham Decl. Ex. 12 at 1.) A f t e r t h e m e e t i n g , C a p t a i n B a b n i c k a s k e d e a c h o f t h e o t h e r three o f f i c i a l s f o r h i s r e c o m m e n d a t i o n o n whether Whitley should be terminated. (Famous Dep. 116:19-21.) Lt. Famous was the only official who recommended that Whitley be retained. (Famous Dep. 116:21-117:11.) O n May 12, 2006, Captain Babnick summarized Whitley's Review i n a memorandum to P A G E 9 - FINDINGS A N D R E C O M M E N D A T I O N {MEP}

Portland Police C h i e f Rosanne Sizer ( " C h i e f Sizer"). (Babnick Aff. Ex. 3.) Captain Babnick outlined Whitley's performance deficiencies, which occurred from January 31,2006, to February 10, 2006, i n more detail than Officer Schilling's memorandum. He then concluded that: Attention to detail and following established policies and procedmes are fundamental requirements for succeeding in a law enforcement career. Officer Whitley repeatedly failed to pay attention to important details, failed to follow established procedmes, and failed to follow the direction o f Sergeant Day by calling him upon receipt o f the faxed Disability in Line o f Duty fOlms. While it is normal for recruit officers to sometimes fail to meet acceptable perfOlmance standards, repetitive deficiencies i n the same areas cause concern as to their ability to function effectively as Portland Police Officers. Officer Whitley has demonstrated repetitive performance deficiencies. After extensive deliberation and discussion with training Divisions staff, 1 recommend that Probationmy Officer Whitley be terminated from the Portland Police Bmeau for failme to meet p e r f o r m a n c e standards. (Babnick Af£ Ex. 3 at 2-3.) Again, this memorandum contained no evidence o f when each perfOlmance deficiency was reported or recorded. Captain Babnick also noted that Whitley's truthfulness became a concem during the Review process. He wrote that: A s vital as it is for officers to adhere to policies, procedmes, and direction from supervisors, being completely honest when responding to questions, whether the questions come from supervisors, judicial officials, or citizens, is paramount. Integrity is one o f the Bmeau values and is a fundamental requirement o f being a POliland Police Officer. D m i n g the Probations Performance Review, Training Division s t a f f had concems regarding the truthfulness o f some statement made by Officer Whitley. I have attached an Appendix that summarizes Officer Whitley's response to each performance deficiency and indicated when the truthfulness o f her response is in question. As noted i n the attached Appendix, some statement made by Officer Whitley are directly contradicted by others and indicate a p a t t e m o f untruthfulness. I do not believe these contradictions can simply be attributed to being under stress, suffering from a painful knee, or being flustered. These contradictions may not conclusively PAGE 10 - FINDINGS AND RECOMMENDATION {MEP}

prove deliberate untruthfulness by Officer Whitley, b u t they are velY troubling. (Babnick Aff. Ex. 3 at 3.) A s s i s t a n t P o r t l a n d P o l i c e C h i e f D o r o t h y E l m o r e ("Asst. C h i e f E l m o r e " ) a g r e e d w i t h C a p t a i n Babnick's recommendation that Whitley be terminated. (Babnick Aff. Ex. 3 at 1.) B y letter dated May 22, 2006, C h i e f Sizer advised Whitley o f her decision to telminate Whitley's employment, explaining that: A Probationary Performance Review to detelmine your continued status as a p r o b a t i o n a r y o f f i c e r h a s been completed. B a s e d o n t h i s r e v i e w , C a p t a i n B a b n i c k o f t h e T r a i n i n g D i v i s i o n h a s d e t e r m i n e d y o u h a v e n o t m e t t h e acceptable p e r f o r m a n c e standards o f a probationmy officer. Consequently, he has recommended that your employment be terminated. The recommendation to tellninate your employment is based o n objective facts that demonstrate you have n o t progressed i n your training a s r e q u i r e d a n d e x p e c t e d . 1 c o n c u r w i t h t h e r e c o m m e n d a t i o n . Accordingly, y o u r employment as a police officer with the POliland Police Bureau will be telminated at 2359 hours May 22, 2006. (Babnick Aff. Ex. 25.) Whitley then offered a letter o f resignation, effective immediately, in w h i c h she explained that she elected to resign to make it easier for her to find work. Whitley then stated that "1 believe that I have been discharged in retaliation for complaining about sexually harassing and discriminatOlytreatment that 1received while 1was attending the State o f Oregon Basic Training Academy; and/or because 1 suffered and on-the-job injUlY while at the Academy. (Oldham Dec!. Ex. 2 9 . ) B. P r o f f e r e d C o m p a r a t o r s ' T r a i n i n g E x p e r i e n c e A t l e a s t three o t h e r officers w i t h p e r f o r m a n c e i s s u e s w h o u n d e r w e n t R e v i e w s d u r i n g t h e same time frame as Whitley were not immediately terminated. Two female officers, Jane D o e and Janet Roe, had multiple perfOlmance deficiencies but were afforded more opportunities to succeed than Whitley. (Oldham Dec!. Under Seal Exs. 1,9.) Jane Doe had documented deficiencies for ten P A G E 11 - FINDINGS AND RECOMMENDATION {MEP}

months, which included problems with geography and responding to radio calls. (Oldham Dec!. Under Seal Ex. 1 at 25-27.) The Bureau gave her multiple oppOliunities to improve her

perfOlmance. (Oldham Dec!. Under Seal Ex. I at 27.) On March 15, 2007, DPSST sent C h i e f Sizer a post-Review recommendation that Jane Doe be terminated, and C h i e f Sizer agreed w i t h the recommendation. (Oldham Dec!. Under Seal Ex. 1 at 25.) Janet Roe had documented performance deficiencies for four months, which included safety issues and failure to follow Bureau rules and policies. (Oldham Dec!. Under Seal Ex. 9 at 9-10.) The Bureau gave Janet Roe multiple

opportunities to improve h e r performance to meet Bureau expectations. (Oldham Dec!. Under Seal Ex. 9 at 9-10.) After a Review, DPSST recommended that the City terminate Janet Roe. (Oldham Dec!. Under Seal Ex. 9 at 9-10.) Additionally, a male officer from Whitley's Academy class was subject to a Review sixteen months after Whitley. This officer, John Doe, had multiple performance deficiencies and, while o n duty, caused a car accident in which a civilian was injured. (Oldham Dec!. Under Seal Ex. 3 a t 4-9.) Despite his repeated perfOlmance deficiencies, John Doe advanced to Phase I o f probationary training o n schedule, he advanced to Phase II in t e n weeks (which is projected for completion i n five weeks), he advanced to Phase III after six weeks, and he advanced to Phase IV after eight weeks (which is projected for completion i n five weeks). (Oldham Dec!. Under Seal Ex. 3 at 7.)

Probationmy services recommended a review for John Doe because o f the "repetitive nature o f the performance concerns, the protracted time in EntlY through Phase IV[,]" and doubts as to whether he could " m e e t the acceptable standard o f performance with the Bureau as outlined in the Manual o f Policy and Procedures, Standardized Evaluation Guidelines, and the Field Training and Evaluation Program." (Oldham Dec!. Under Seal Ex. 3 at 9.) P A G E 12 - F I N D I N G S A N D R E C O M M E N D A T I O N {MEP}

After J o h n D o e ' s review, C h i e f S i z e r o r d e r e d the training d i v i s i o n t o e x t e n d J o h n D o e ' s p r o b a t i o n b y s i x m o n t h s and d e v e l o p corrective s t r a t e g i e s t o resolve J o h n D o e ' s deficiencies. ( O l d h a m Dec!. U n d e r S e a l Ex. 5 a t 1.) T h e B u r e a u e x t e n d e d J o h n D o e ' s p r o b a t i o n o n J u n e 6,2007. ( O l d h a m Dec!. U n d e r S e a l Ex. 5 a t 7.) O n J u l y 23,2007, officials a t D P S S T r e c o m m e n d e d a n o t h e r r e v i e w f o r J o h n D o e b e c a u s e , i n a d d i t i o n to i t s e a r l i e r c o n c e m s , " t h e p o t e n t i a l l y a d v e r s e o u t c o m e s a s s o c i a t e d w i t h t h e n u m e r o u s Officer Safety a n d F i e l d P e r f o r m a n c e issues clearly p r e v e n t O f f i c e r [Doe] f r o m s a f e l y w o r k i n g t h e s t r e e t w i t h o r w i t h o u t a F i e l d T r a i n i n g O f f i c e r . " ( O l d h a m Dec!. U n d e r S e a l Ex. 6 a t 3 . ) A t t h e r e v i e w o n A u g u s t 1 7 , 2 0 0 7 , t h e C a p t a i n o f t h e T r a i n i n g D i v i s i o n , E r i c

A. H e n d r i c k s , n o t e d J o h n D o e ' s m u l t i p l e failures t o m e e t perfOlmance s t a n d a r d s i n t h e a r e a s o f
" K n o w l e d g e o f Bureau R u l e s a n d Procedures, K n o w l e d g e o f O R S , Knowledge o f O r e g o n V e h i c l e C o d e , G e o g r a p h i c O r i e n t a t i o n , R e p o r t Writing, F i e l d Performance, I n v e s t i g a t i v e S k i l l , S e l f - I n i t i a t e d F i e l d Activity, O f f i c e r S a f e t y a n d R a d i o P r o c e d u r e s . " ( O l d h a m Dec!. U n d e r S e a l Ex. 8 a t 1.) H e n d r i c k s concluded t h a t J o h n D o e " f a i l e d t o m e e t the m i n i m u m s t a n d a r d s o f a p r o b a t i o n a r y o f f i c e r " a n d t h u s r e c o m m e n d e d J o h n D o e ' s t e l m i n a t i o n . ( O l d h a m D e c ! . U n d e r S e a l Ex. 8 a t 1 . ) T h e B u r e a u t e l m i n a t e d J o h n D o e o n A u g u s t 27, 2007. ( O l d h a m Dec!. U n d e r S e a l Ex. 8 a t 3.) A t l e a s t t w o o t h e r m a l e officers, T o m L o n g a n d F r a n k R o e , were g i v e n o p p o r t u n i t i e s t o s u c c e e d d e s p i t e p o o r p e r f o r m a n c e s . ( H e c h t Dec!. u n d e r S e a l '[~ 9-10.) S i m i l a r to J o h n D o e , t h e s e o f f i c e r s h a d p a s s e d the A c a d e m y a n d w e r e i n p h a s e s 1-5 o f training. ( H e c h t Dec!. tmder S e a l
~~ 9 -

10.) T h e B u r e a u r e t a i n e d T o m L o n g t h r o u g h t h e A c a d e m y a n d t h e n A d v a n c e d A c a d e m y a n d

a l l o w e d h i m t o w o r k the s t r e e t d e s p i t e h i s " m u l t i p l e i s s u e s w i t h supervisors and i n s u b o r d i n a t i o n . " ( H e c h t Dec!. u n d e r S e a l ~ 9.). S i m i l a r l y , the B u r e a u g a v e F r a n k R o e " m u l t i p l e o p p o r t u n i t i e s t o s u c c e e d o v e r s e v e r a l m o n t h s " e v e n t h o u g h h e " s e e m e d t o perfOlm p o o r l y o n a c o n s i s t e n t b a s i s . "

P A G E 13 - F I N D I N G S A N D R E C O M M E N D A T I O N

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(Hecht Dec!. ~ 9.) The Bureau even "moved [Frank Roe] from one coach at one precinct to another precinct because he was not doing weI!." (Hecht Dec!. under Seal
~

9.) The Bureau eventually

terminated both T o m Long and Frank Roe. (Hecht Decl. under Seal ~ 8.) Additionally, there was at least one other probationmy male officer who missed an optional training class. (Schilling Dep. 83:20-84:3.) DPSST officials did not request a Review o f that officer. (Schilling Dep. 84:2-4.) Officer Schilling explained that they did not request a Review because that officer was sick and made the class up later. (Schilling Dep. 84:5-8.) C. Evidence o f Like RetaliatolY Treatment o f Other Members o f Whitley's Protected Class Whitley presents evidence that two other female probationmy officers claimed that they were retaliated against by the Bureau after they reported what they believed to be unlawful or discriminatOlY conduct b y other officers. (Lewis Dec!. under Seal ~~ 6-15; Oldham Decl. Ex. 31.) W h i t l e y ' s claims for retaliation are not bolstered or supported in any way by the existence o f similm' c l a i m s f r o m o t h e r female p r o b a t i o n a r y officers. H e r c l a i m s w i l l s t a n d o n t h e e v i d e n c e o f t h e B u r e a u ' s treatment o f her, not allegations o f its treatment o f women in genera!. Accordingly, this evidence is not relevant to Whitley's claims and will n o t be considered by the court.
Legal Standard

Summmy judgment is appropriate only when the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter o f l a w . " FED. R. ClV. P. 56(c). A dispute is genuine i f "the evidence is such that a reasonable jUly could retUlTI a verdict for the non-moving pmty." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if, under the substantive l a w o f the case, resolution o f the factual dispute could affect the outcome o f the case. [d. a t 248. The moving pmiy bears the initial burden o f showing "the P A G E 14 - FINDINGS AND RECOMMENDATION {MEP}

absence o f a genuine issue concerning any material fact." Adickes v. S . H Kress & Co., 398 U.S. 144, 159 (1970). The moving party satisfies its burden by offering the district court the p01tions o f the record it believes demonstrate the absence o f a genuine issue o f material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). The court does " n o t w e i g h the evidence o r detennine the truth
o f the matter, but only determines whether there is a genuine issue for triaL" Balint v. Carson City,

Nev., 180 F.3d 1047, 1054 (9th Cir. 1999).
O n c e the m o v i n g p a r t y m e e t s i t s i n i t i a l b u r d e n , t h e n o n m o v i n g p a r t y m u s t e s t a b l i s h t h e existence o f a genuine issue o f material fact. FED. R. CIY. P. 56(e). T o m e e t this burden, the n o n m o v i n g party must make an adequate showing as to each element o f t h e claim for w h i c h i t will b e a r t h e b u r d e n o f p r o o f a t trial. C e l o t e x , 4 2 2 U . S . a t 3 2 2 - 2 3 . T h e n o n m o v i n g p a r t y " m a y n o t r e s t upon the mere allegations o r denials o f his pleading but . . . m u s t set f01th specific facts showing that there is a genuine issue for triaL" First N a t ' l B a n k o fAriz. v. Cities Servo Co., 391 U.S. 253, 288-89 (1968). I n order to establish that there is a genuine issue o f material fact, t h e nonmoving p a t t y " n e e d only present evidence from w h i c h a j u r y might return a verdict in [the n o n m o v i n g p a r t y ' s ] favor."

Anderson, 477 U.S. at 257. The evidence set forth m u s t be sufficient to a l l o w a rational j u r y to find
for the nonmoving patty. lVfatsushita Elec. Indus. CO. (1986).
V.

Zenith Radio Corp., 475 U.S. 574, 587

A " m e r e scintilla o f evidence i n SUpp01t o f the [nonmoving p a t t y ' s ] position [is]

insufficient." Anderson, 477 U.S. at 252. Additionally, the COUlt must v i e w the evidence in the light most favorable to the nonmoving party, and m u s t d r a w all reasonable inferences from the u n d e r l y i n g ' facts i n favor o f the nonmoving patty. B e l l V. Cameron lvIeadows L a n d Co., 669 F . 2 d 1278, 1284 ( 9 t h C i r . 1982). T h e N i n t h C i r c u i t h a s c a u t i o n e d a g a i n s t too r e a d i l y g r a n t i n g s u m m a t y j u d g m e n t i n e m p l o y e e

P A G E 15 - FINDINGS AND R E C O M M E N D A T I O N

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discrimination cases because o f "the importance o f zealously guarding a n employee's right t o a full trial, since discrimination claims are frequently difficult to prove without a full airing o f the evidence and an oppOliunity to evaluate the credibility o f the witnesses." l v k G i n e s t v. G T E Servo CO/p., 360 F.3d 1103, 1112 (9th CiI. 2004); see also Oncale
V.

Sundowner Offshore Serv., Inc., 523 U.S. 75,

8 1 - 8 2 ( " T h e r e a l social i m p a c t o f w o r k p l a c e b e h a v i o r o f t e n d e p e n d s o n a c o n s t e l l a t i o n o f surrounding circumstances, exceptions, and relationships which are n o t fully captured by a simple recitation o f the words used or the physical acts performed."). Thus, the Ninth Circuit has set " a high standard for granting summmy j u d g m e n t i n employment discrimination cases." Schindrig V.
Columbia ,vIach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). COUtis require "vety little evidence t o

survive summmy judgment in a discrimination case, because the ultimate question is one t h a t can only be resolved through a searching inquiry--one that is more appropriately conducted b y the factfinder upon a full record." [d. (internal quotations and citation omitted). Additionally, "any indication o f discriminatOlY motive . . . may suffice to raise a question that c a n only be resolved b y a factfinder," and thus "summmy judgment for the defendant will ordinarily not be appropriate o n any ground relating to the merits." Id. (quoting Warren v. City o l C a r l s b a d , 58 F.3d 439, 443 (9th Cir. 1995)). Nevetiheless, the Ninth Circuit holds that the " [fjailure to allege 'specific facts' that establish the existence o f a prima facie case renders a grant o f summary j u d g m e n t appropriate." Jurado v.
Eleven-Fifty CO/p., 813 F.2d 1406, 1409 (9th CiI. 1987) (citation omitted). Additionally, " w h e n

evidence to refute the defendant's legitimate explanation is totally lacking, summmy judgment is appropriate even though plaintiff may have established a minimum prima facie case." Wallis V. J.R.
S i m p l o t Co., 26 F.3d 8 8 5 , 8 9 0 - 9 1 (9th CiI. 1994).

P A G E 16 - FINDINGS AND RECOMMENDATION

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Discussion

A. Federal Gender Discrimination
1. Standards

"To establish a p r i m a f a c i e case [of discrimination], a plaintiff must offer evidence that 'givers] rise to an inference o f unlawful discrimination.'" Godwin v. Hunt Wesson, Inc. 150 F.3d 1 2 1 7 , 1 2 2 0 (9th Cir. 1998) (quoting Texas D e p ' t o f C m t y . Affairs v. Burdine, 450 U.S. 248, 253 (1981 » . A plaintiff can meet this burden by showing that she has been singled out and treated less favorably than others similarly situated because o f a protected class status. See },lcGinest, 360 F.3d at 1121 (applying standard in race discrimination case). A plaintiff can establish a p r i m a facie case o f discrimination in one o f two ways. First, t h e p l a i n t i f f c o u l d p r e s e n t d i r e c t e v i d e n c e o f

discriminatory intent. Wallis, 26 F.3d at 889. "Direct evidence is 'evidence which, i f believed, proves the fact o f discriminatory animus without inference or presumption.'"
Vasquez v. Los

Angeles, 349 F.3d 634, 640 (9th Cir.2003) (quoting Godwin, 150 F.3d at 1221). Second, the

plaintiff alternatively could establish that: "(1) she belongs to a protected class, (2) she was performing according to her employer's legitimate expectations, (3) she suffered an adverse employment action, and (4) other employees with qualifications similarto her own were treated more favorably." Godwin, 150 F.3d at 1220 (citing lvJcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973». Once a plaintiff establishes her p r i m a facie case, the burden shifts to the defendant to "articulate nondiscriminatOlY reasons for the allegedly discriminatOlY conduct." lvJcDonnell
Douglas, 411 U.S. at 802. I f the defendant articulates a "facially nondiscriminatOlY reason," the

burden shifts back to the p l a i n t i f f "to show that the employer's reason was a pretext for PAGE 17 - FINDINGS AND RECOMMENDATION {MEP}

discrimination." Burdine, 450 U.S. at 252. Pretext may be established i n one o f t w o ways: "(1) indirectly by showing that defendant's proffered explanation is unworthy o f credence because i t is internally inconsistent or otherwise not believable; or (2) directly, by showing that unlawful discrimination more likely motivated the defendant." White v. TA Operating Corp., No. 06-1747AA, 2008 WL 2557983, *3-4, 2008 (D. Or. June 1 9 , 2 0 0 8 ) (citing Godwin, 150 F.3d at 1220). "The ultimate burden o f persuading the trier o f fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, at 253. The requisite degree o f p r o o f to establish a p r i m a f a c i e case for Title VII claims on summmy judgment "is minimal and does not even need to rise to the level o f a preponderance o f the evidence." Wallis, 26 F.3d at 889. Once a plaintiff establishes a p r i m a f a c i e case o f discrimination, it "in effect creates a presumption that the employer unlawfully discriminated against the employee."

Burdine, 450 U.S. at 254. But once the defendant offers a " a legitimate, nondiscriminatOlY reason
for its employment decision, the . . . presumption o f unlawful d i s c r i m i n a t i o n ' simply drops out o f the p i c t u r e . ' ' ' Wallis, 26 F.3d at 889 (citing St. ",lary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993». 2. Discussion Whitley relies o n circumstantial evidence to support her gender discrimination claim. That she meets the first and third prongs o f the lvicDonnell Douglas test is not in dispute,2 and Whitley contends that she "has adduced sufficient evidence to meet the second and fourth prongs" o f t h e test as well. (PI.'s Mem. in Opp. 13.) The City claims that "Whitley cannot prove that she was

See Defs.' Mem. in Supp. 14 ("the City agrees that Whitley is a female which is a class protected under Title VII. Whitley also was telminated o n May 22, 2006, which is a sufficient adverse action for the third element. ").
2

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perfOlming according to the City's legitimate expectations, nor can she prove that there were similarly situated male employees who were treated more favorably than Whitley." (Defs.' Mem. i n Supp. 14.) a. Whitley cannot show that she was satisfactorily performing her job. To make her p r i m a facie case, Whitley must produce evidence that she was perfOlming according to the B u r e a u ' s legitimate expectations. The Ninth Circuit characterizes the crux o f t h i s element as whether the plaintiff "adequately" perfOlmed her job, which "suggests a standard less than perfect perfOlmance." k l o o r e h e a d v. ChertofJ, No. C-07-1205-MJP, 2008 WL 4810308, at *2 (W.D. Wash. Nov. 3 , 2 0 0 8 ) (citing Cornwell v. Electra Cent. Credit Union, 439 F.3d 1 0 1 8 , 1 0 3 1 (9th Cir. 2006)). The }vIoorehead court reasonably concluded that the "proposition that an employer has a 'legitimate' expectation that an employee will n e v e r violate a j o b requirement" is " n o t a persuasive argument." Id. at *2. To prove that she was meeting the employer's legitimate expectations, the employee could offer evidence such as "positive perfOlmance reviews, admissions by the employer, or even expert testimony as to an employer's legitimate expectations for the j o b at issue." A b r a m v. San Francisco, No. C07-3006PJH, 2008 WL 4462104, at *3 (N.D. Cal. Oct. 3. 2008). The City argues that Whitley did not perform according to the Bureau's legitimate expectations because she " w a s unable to meet State o f Oregon mandated standards required for her to become a certified police officer." (Defs.' Mem. in Supp. 15.) The City points to the facts that D P S S T gave Whitley deficiency ratings i n qualifying tests for both handgun and shotgun, that Whitley had to rewrite reports that were not up to DPSST standards, that she scored below passing on an exam, and that her final academic ranking was forty-one out o f fOliy-two students. (Defs.' P A G E 19 - FINDINGS AND RECOMMENDATION {MEP}

Mem. i n Supp. 15-16 (citing Defs.' CSMF3 ~~ 9-15).) Whitley also failed to t u m i n at least one assignment on time, she was late to class at least once, she missed optional evening classes without following DPSST notification procedures, she did not follow an order to call her supervisor, and "when questioned about these performance issues by DPSST or Bureau employees, Whitley appeared untruthful." (Defs.' Mem. in Supp. 16 (citing Defs.' CSMF ~~ 16-40).) Whitley responds with two arguments: (1) her testimony "as to the quality o f her work can be sufficient, without more, to establish that she performed according to defendant's expectations for purposes o f a prima facie case," and (2) her alleged deficiencies were "minor errors" that do "not demonstrate Whitley to be incompetent." (Pl.'s Mem. i n Opp. 16-17.) In SUppOlt o f her first argument, Whitley relies on a case from this district that cited Seventh Circuit precedent t h a t " a plaintiff may establish the satisfactOlY j o b perfommnce element o f his prima facie case by relying solely upon his affidavit that he subjectively believed that his performance was adequate." Flemming v. Portland, No. CV-99-326-ST, 2000 WL 116073, at *9 (D. Or. Jan. 5 , 2 0 0 0 ) (citing Williams v. Williams Elecs., Inc., 856 F.2d 920, 923 n . l (7th Cir. 1988) ("A detelmination that an individual is performing a j o b well enough to meet an employer's legitimate expectations, when made i n the context o f a prima facie case, may be based solely upon the employee's testimony c o n c e r n i n g the q u a l i t y o f h i s w o r k . " » . The City counters that a more recent Ninth Circuit case considers a p l a i n t i f f s ' ' ' s e l f assessment o f his perfOlmance [to be] relevant' i n satisfYing p l a i n t i f f s burden o f showing qualification at the initial, prima facie case, stage o f the McDonnell Douglas burden-shifting rationale but has n o t relied solely on the p l a i n t i f f s s e l f serving assessment. " (Defs.' Reply 7)

3"CSMF" refers to the Concise Statement o f Material Facts filed by the referenced patty. PAGE 20 - FINDINGS AND RECOMMENDATION {MEP}

(quoting Lyons v. England, 307 F.3d 1092, I l l S (9th Cir. 2002)(internal quotations and citation omitted).) The Lyons court noted the p l a i n t i f f s self-assessment and then stated, " [w ]hile we do n o t rely o n this evidence alone, we note it as relevant in combination with other circumstantial evidence o f qualification." Lyons, 307 F.3d at I l l S . In fact, while a p l a i n t i f f s self-assessment is a relevant c o n s i d e r a t i o n , b y i t s e l f i t i s n o t e v i d e n c e s u f f i c i e n t to s a t i s f y t h i s e l e m e n t o f a p l a i n t i f f s p r i m a f a c i e case. See, e.g., Otsyulav. Or. Dept. O fState Lands, No. 07-1390-ST, 2008 WL5246092, *6 (D. Or. Dec. 1 6 , 2 0 0 8 ) ("However, ' a n employee's subjective personal judgments o f [his] competence alone do not raise a genuine issue o f material fact."')(quoting B r a d l e y v. Harcourt, Brace a n d Co., 104 F.3d 267, 270 (9th Cir. 1996). Therefore, Whitley's self-assessment is relevant to but n o t

determinative o f the question o f whether she was adequately performing her duties. O n this point, and as the City observes, Whitley has n o t provided " h e r subjective assel1ion nor objective evidence that she was performing as well as her classmates." (Defs.' Reply 8.) Indeed, the City cites Whitley's p o o r perfol1nance, as enumerated above, and that "Whitley herself admits herperfOlmance was deficient." (Defs.' Reply 8 (citing Whitley Decl. ~ 18).) Given the documented p e r f o r m a n c e deficiencies and W h i t l e y ' s a c k n o w l e d g m e n t o f h e r deficient A c a d e m y performance, Whitley's use o f her o w n assessment here is n o t useful evidence to sUppOll a reasonable inference t h a t h e r p e r f o r m a n c e m e t t h e C i t y ' s standards. Whitley's second argument blends w i t h h e r self-assessment argument: that her alleged deficiencies were "minor errors" that did n o t "demonstrate [her] to be incompetent." ( p l . ' s Mem. i n Opp. 16.) Whitley contends that her "only performance deficiencies regarding her training while at [the Academy] were alleged to have OCCUlTed between 01/31/06 and 02/10/06." ( p l . ' s Mem. i n Opp. 16 (citing Whitley Decl. ~~ 6-9).) Whitley cites no case l a w to suppOll the implied premise o f PAGE 21 - FINDINGS AND RECOMMENDATION {MEP}

her argument, that deficient performance, i f only b r i e f i n duration, may be disregarded in considering w h e t h e r a p l a i n t i f f has m e t t h i s p r o n g o f t h e l v f c D o n n e l l D o u g l a s test. F u r t h e r m o r e , W h i t l e y does not contest that successful completion o f t h e s e qualifications applied to all probationmy officers at the Academy or that she was exempted from this requirement. This argument, therefore, also is unavailing on the p r i m a facie case. Whitley also contends that h e r alleged academic deficiencies "were not serious and, because [she] did complete and pass all o f h e r academic, nonphysical skills, course work, these arguments are il1'elevant." (P!.'s Mem. in Opp. 17.) Although this argument has more merit - D P S S T ' s w i l l i n g n e s s to p a s s W h i t l e y ' s a c a d e m i c c o u r s e w o r k i n d i c a t e s t h a t s h e p e r f o r m e d a d e q u a t e l y i n a t least one aspect o f her j o b - the fact remains that ultimately she did n o t meet the Oregon mandated standm'd to become a police officer and, thus, did not graduate from Basic Academy. (P!.'s CSMF
~

3 (citing OR. REv. STAT. 181.640, 181.655(1)(b).) Although Whitley argues t h a t many o f h e r

alleged deficiencies were attributable to her knee injury, (P!.'s Mem. in Opp. 17), she overlooks that many o f the alleged deficiencies enumerated above, such as handing i n assignments late, al1'iving late to class, failing to follow DPSST notification procedures for missed classes, and appearing untruthful to DPSST officials, were deficiencies not show to be related to her knee injury. As such, W h i t l e y d i d n o t p e r f o r m to h e r e m p l o y e r ' s l e g i t i m a t e e x p e c t a t i o n s i n a l l a s p e c t s o f h e r p e r f o r m a n c e . T h e C i t y h a s d e m o n s t r a t e d t h a t t h e r e is n o g e n u i n e i s s u e o f m a t e r i a l fact t h a t W h i t l e y d i d n o t perform according to the B u r e a u ' s legitimate expectations. Whitley did not present any additional evidence that she met her employer's legitimate expectations, nor has she expressly m'gued that her p e r f o n n a n c e d i d m e e t h e r e m p l o y e r ' s l e g i t i m a t e expectations. Therefore, W h i t l e y c a n n o t m a k e a

p r i m a facie case and summmy j u d g m e n t should be granted for the City o n Whitley's gender
P A G E 22 - FINDINGS A N D R E C O M M E N D A T I O N {MEP}

discrimination claims. b. There were no male employees similarly situated to Whitley, and i f there were, the employees were not treated more favorably than Whitley. T o meet this element, Whitley must show that "others n o t in [her] protected class were treated more favorably." Aragon v. Republic Silver St. Disposal, Inc., 292 F.3d 654, 660 (9th Cir. 2002). S p e c i f i c a l l y , W h i t l e y m u s t p r e s e n t e v i d e n c e t h a t s i m i l a r l y s i t u a t e d m a l e s w e r e t r e a t e d m o r e favorably. Id. This element contains two requirements. First, Whitley must show that other employees "are similarly situated to those employees i n all material respects." },;loran v. Selig, 447 F.3d 7 4 8 , 7 5 5 (9th Cir. 2006). Second, Whitley must show that similarly situated male employees were treated more favorably. Aragon, 292 F J d a t 660. Additionally, i n a disparate treatment case, "liability depends on whether the protected trait . . . actually motivated the employer's decision," and thus whether the trait "had a determinative influence o n the outcome." Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). I ) Three o f four comparators were n o t similarly situated to Whitley. The first task under the fourth prong o f Whitley' s p r i m a f a c i e case is detetmining what group o f people was similarly situated to her. "Individuals are similarly situated when they have similar j o b s and display similar conduct." Vasquez, 349 F J d a t 641; see also Hargrow v. Fed. Express CO/p., No. 03-0642-PHX-DGC, 2006 WL 269958, **4-5 (D. Ariz. Feb. 2, 2006) ("To be similarly situated, coworkers must have been dealt with by the same supervisor, subject to the same standards, and engaged i n similar conduct." (citing Vasquez, 349 F J d at 641 )). The Ninth Citcuit adopted this rule from the Eighth Circuit, which holds that " [ e]mployees are similarly situated when they are involved in or accused o f the same offense and are disciplined in different ways." Ward v. Proctor
& Gamble Paper Prods. Co., I I I F.3d 558, 560 (8th Cir. 1997) (internal quotations and citation

P A G E 23 - FINDINGS AND RECOMMENDATION

{MEP}

omitted, emphasis in original). In Vasquez, the Ninth Circuit held that the plaintiff was not similarly situated to other employees because, even though the employees "held the same level position," they " d i d n o t engage in problematic conduct o f comparable seriousness to that o f [the plaintiff]." 349 F.3d at 641. Therefore, under Vasquez, employees similarly situated to Whitley must have "similar j o b s " and must have engaged in "problematic conduct o f comparable seriousness." The City argues that a similarly situated group would be made up o f individuals with W h i t l e y ' s perfOlmance deficiencies. (Defs.' Mem. in Supp. 18.) Whitley, on the other hand, argues that those "similarly situated" are "[0 ]ther officers who have gone tln'ough the PPB probationmy review process." ( p ! . ' s Mem. in Opp. 19.) Under Ninth Circuit precedent, the C i t y ' s view is conect: t h e e m p l o y e e - c o m p a r a t o r s m u s t have e n g a g e d i n p r o b l e m a t i c c o n d u c t o f c o m p a r a b l e s e r i o u s n e s s . Whitley makes two arguments regarding similarly situated male employees. First, she argues that three similarly situated male employees were treated more favorably: Frank Roe, T o m Long, and John Doe. All o f these m e n passed the Academy and were in phases 1-5 o f training, and they were a l l t e t m i n a t e d f r o m t h e B u r e a u . F r a n k R o e " w a s g i v e n m u l t i p l e o p p o r t u n i t i e s to s u c c e e d o v e r s e v e r a l months," he was " m o v e d from one coach at one precinct to another precinct because he was n o t doing well" and "seemed to perform poorly on a consistent basis." (Hecht Dec!. under Seal
~

8.)

N e v e r t h e l e s s , t h e B u r e a u " g a v e h i m o p p o r t u n i t i e s to s u c c e e d a f t e r B a s i c A c a d e m y a n d a f t e r Advanced Academy." (Hecht Dec!. under Seal
~

8.) Without additional information, the evidence

regarding Frank Roe does not show that he was similarly situated to Whitley because his specific performance deficiencies are unknown. Similarly, Whitley argues that "despite his multiple issues with supervisors and insubordination," Tom Long " w a s retained through Basic Academy, tln'ough Advance [sic] Academy and ultimately worked the street before he was finally terminated." (Hecht P A G E 24 - FINDINGS A N D R E C O M M E N D A T I O N {MEP}

Dec!' u n d e r Seal

~

9.) Again, t h i s s t a t e m e n t d o e s n o t SUppOlt t h e c o n c l u s i o n t h a t W h i t l e y w a s

similarly s i t u a t e d t o T o m L o n g because h i s specific p e r f o r m a n c e deficiencies r e m a i n u n k n o w n . W h i t l e y also contends that J o l m D o e is a similarly situated male employee. (See P ! . ' s M e m . i n Opp. 2 0 . ) J o l m D o e , w h o w e n t t h o u g h t h e A c a d e m y w i t h W h i t l e y , l a t e r h a d " m a j o r p e r f o n n a n c e deficiencies," including " r e c k l e s s l y causing a car a c c i d e n t w h i l e o n d u t y a n d subsequently injuring a civilian." ( P I . ' s M e m . i n Opp. 21 (citing O l d h a m Dec!' U n d e r Seal Exs. 3-8).) T h e B u r e a u retained J o l m D o e d e s p i t e h i s a l l e g e d d e f i c i e n c i e s a n d t h e t r a f f i c a c c i d e n t . ( O l d h a m D e c l . U n d e r S e a l E x . 5.) V i e w i n g the e v i d e n c e in t h e light m o s t favorable t o Whitley, t h e c o m t finds that Jolm D o e c o u l d be v i e w e d as s i m i l a r l y s i t u a t e d , o r c o m p a r a b l e , t o W h i t l e y . I n h e r s e c o n d a r g u m e n t , W h i t l e y c o n t e n d s t h a t a n o t h e r m a l e o f f i c e r in t h e A c a d e m y w a s s i m i l a r l y situated. L i k e Whitley, t h i s o f f i c e r " m i s s e d a n o p t i o n a l c l a s s . " ( P ! . ' s M e m . i n O p p . 2 0 . ) B u t , u n l i k e Whitley, t h i s o f f i c e r ' s absence did n o t " r e s u l t in discipline . . . b e c a u s e [he] a s s e r t e d t h a t h e w a s ' s i c k ' a n d t h i s w a s v i e w e d as a r e a s o n a b l e e x c u s e . " ( P I . ' s M e m . i n Opp. 2 0 ( c i t i n g S c h i l l i n g Dep. 83:20-84:10).) This a r g u m e n t d o e s n o t s u p p o r t t h e c o n c l u s i o n t h a t W h i t l e y w a s s i m i l a r l y situated to this o f f i c e r because the o f f i c e r ' s specific perfOlmance deficiencies r e m a i n unknown, and one instance o f another o f f i c e r ' s m i s c o n d u c t d o e s n o t p r o v e that t h e officer w a s similarly situated because i t d o e s n o t s h o w t h a t the officer engaged i n " p r o b l e m a t i c c o n d u c t o f comparable seriousness." See Vasquez, 349 F . 3 d a t 641. 2) E v e n i f t h e r e w e r e o t h e r s i m i l a r l y situated m a l e e m p l o y e e s , they w e r e n o t t r e a t e d m o r e f a v o r a b l y t h a n Whitley. W h i t l e y argues t h a t she w a s treated d i f f e r e n t l y f r o m similarly s i t u a t e d m a l e e m p l o y e e s b e c a u s e she w a s " n e v e r p e r m i t t e d t o undergo a p r o c e s s o f d o c u m e n t e d r e m e d i a t i o n " u n l i k e o t h e r probationary officers w h o were p e r m i t t e d to undergo s u c h a process before b e i n g t e n n i n a t e d . ( P I . ' s P A G E 25 - F I N D I N G S A N D R E C O M M E N D A T I O N {MEP}

Mem. i n Opp. 14-15.) Whitley contends that Frank Roe, Tom Long, and John Doe were treated more f a v o r a b l y b e c a u s e t h e y r e c e i v e d d a i l y o b s e r v a t i o n r e p o r t s p r i o r to t h e i r t e r m i n a t i o n s . T h e C i t y C011'ectly responds that this is not evidence o f more favorable treatment because "Whitley has produced no evidence that any males at Basic Academy . . . received daily observation reports," but she did present evidence "that males and females who advanced to phases 1-5 o f training received daily observation repol1s." (Defs.' Reply 10.) Whitley did n o t graduate from the Academy and never began Phase 1 training. (Whitley Dep. 82: 1-6.) Therefore, there is no evidence that she was entitled to receive daily observation repol1s at the Academy or that the male officers' receipt o f such rep011s w a s favorable treatment. In conclusion, Whitley has failed to present a genuine issue o f material fact with regard to her claim for gender discrimination under Title VII. Specifically, Whitley has failed to present evidence that she was performing according t o the B u r e a u ' s legitimate expectation or that similarly situated male employees were treated more favorably. Therefore, the C i t y ' s motion for summary j u d g m e n t o n W h i t l e y ' s federal gender discrimination claim should be granted. B. S t a t e G e n d e r D i s c r i m i n a t i o n "The standard for establishing a prima facie case o f discrimination under Oregon law is identical to that used under federal law." S n e a d v . lvfetro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001). E v e n though Title V I I ' s p r i m a f a c i e analysis applies to the state claims, Oregon has rejected the McDonnell Douglas burden-shifting scheme. See Callan v. Confederation o f Or. Sch.
A d m 'rs., 79 Or. App. 73, 76 (1986)'("the same shifting burden mechanism [that] applies in actions

under the Oregon anti-discrimination statutes . . . [was] rejected" by the Oregon Supreme Court) (citing P o r t l a n d v. Bureau o f Labor a n d Indus., 298 Or. 104 (1984)). I n this case, the McDonnell P A G E 2 6 - FINDINGS A N D R E C O M M E N D A T I O N {MEP}

Douglas burden-shifting does not apply. A s another j u d g e o f t h i s district recently explained i n A d a m s
v. Home D e p o t USA, Inc., No. 0 5 - l 7 9 8 - S T , 2007 WL 4565163, a t *16-17 (D. Or. Dec. 1 9 , 2 0 0 7 ) : O r e g o n l a w p r o h i b i t i n g r a c e a n d age d i s c r i m i n a t i o n ( O R S 6 5 9 A . 0 3 0 ) d o e s n o t follow the i'vIcDonnell Douglas b u r d e n shifting formula e v e n w h e n the claims are premised o n circumstantial, rather than direct, evidence o f discrimination. Callan v. C o n f e d o f Ore. Sch. Admin., 7 9 Or. App. 73, 78 n.3, 717 P.2d 1 2 5 2 , 1 2 5 4 n.3 (1986). O r e g o n c o u r t s h a v e , h o w e v e r , a c k n o w l e d g e d t h a t the r e q u i r e m e n t s for a p r i m a f a c i e c a s e o f d i s c r i m i n a t i o n b a s e d o n c i r c u m s t a n t i a l e v i d e n c e u n d e r f e d e r a l l a w also a p p l y to state law claims. See Henderson v. Jantzen, 7 9 Or. App. 654, 658, 719 P.2d 1322, 1324, rev denied, 302 Or. 35, 726 P . 2 d 934 (1986), citing Burdine, 450 U.S. at 253. I n o t h e r w o r d s , a plaintifTwho e s t a b l i s h e s a p r i m a f a c i e case o f d i s c r i m i n a t i o n u n d e r Title V I I o r A D E A s u r v i v e s s u m m a t y j u d g m e n t o n t h e c o r r e s p o n d i n g d i s c r i m i n a t i o n c l a i m u n d e r ORS 6 5 9 A . 0 3 0 w i t h o u t h a v i n g t o s a t i s f y t h e n e x t s t e p s o f t h e l \ I c D o n n e l l Douglas framework. Nevettheless, based onSneadv.l1;fetl'O. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1091 (9th Cir. 2001), H o m e D e p o t contends that the McDonnell-Douglas burden s h i f t i n g applies h e r e to p l a i n t i f f s ' O r e g o n e m p l o y m e n t d i s c r i m i n a t i o n claims. S n e a d holds that federal COUtts w i t h diversity j u r i s d i c t i o n m u s t apply the McDonnell Douglas b u r d e n - s h i f t i n g f r a m e w o r k to c l a i m s u n d e r ORS 659A.030. T h i s c o m t h a s p r e v i o u s l y found S n e a d i n a p p l i c a b l e to s t a t e d i s c r i m i n a t i o n c l a i m s p r e m i s e d o n s u p p l e m e n t a l jurisdiction. See Pascoe v. Mentor Graphics Corp., 199 F. Supp. 2 d 1 0 3 4 , 1 0 5 2 n A (D. Or. 2001). Citing Echols v. Lokan & Assoc., Inc., 2007 W L 756691 * 10 (D. Or. M a r c h 7, 2007), H o m e D e p o t argues that the burden-shifting framework applies to s t a t e c l a i m s r e g a r d l e s s o f w h e t h e r j u r i s d i c t i o n i s g o v e m e d b y d i v e r s i t y or federal q u e s t i o n . H o w e v e r , E c h o l s s i m p l y h e l d t h a t b e c a u s e the p l a i n t i f f s a t i s f i e d h e r p r i m a f a c i e c a s e u n d e r T i t l e VII, s h e a l s o m e t h e r p r i m a f a c i e c a s e u n d e r O R S 6 5 9 A . 0 3 0 a n d d e n i e d s u m m a t y j u d g m e n t t o e m p l o y e r o n t h e s t a t e claim. H e r e , b e c a u s e W h i t l e y c a n n o t m a k e a p r i m a f a c i e c a s e u n d e r h e r T i t l e VII g e n d e r discrimination claim, she cmmot make a case under state law. Therefore, the City has m e t its burden o n W h i t l e y ' s state d i s c r i m i n a t i o n c l a i m , a n d i t s m o t i o n for s u m m a t y j u d g m e n t s h o u l d b e g r a n t e d . C. Federal Retaliation 1. Standards
A n e m p l o y e r c a n v i o l a t e t h e a n t i - r e t a l i a t i o n p r o v i s i o n s o f T i t l e VII i n e i t h e r o f t w o w a y s : " ( 1 )

i f t h e [ a d v e r s e e m p l o y m e n t action] o c c u r s b e c a u s e o f t h e e m p l o y e e ' s o p p o s i t i o n t o c o n d u c t m a d e a n P A G E 2 7 - FINDINGS A N D R E C O M M E N D A T I O N {MEP}

unlawful employment practice . . . , o r (2) i f i t is in retaliation for the e m p l o y e e ' s p a r t i c i p a t i o n i n the machinery set u p by Title VII to enforce its provisions." Hasimoto v. Dalton, 118 F . 3 d 671, 6 8 0 (9th Cir. 1 9 9 7 ) ( i n t e r n a l q u o t a t i o n s a n d c i t a t i o n o m i t t e d ) . T h e f o r m e r i s r e f e r r e d t o as t h e " o p p o s i t i o n c l a u s e , " a n d the latter is c a l l e d " t h e participation clause." Id. Whitley argues that the City v i o l a t e d t h e o p p o s i t i o n clause, n o t t h e p a r t i c i p a t i o n c l a u s e , b y f i r i n g h e r for r e p o r t i n g a n d o p p o s i n g g e n d e r d i s c r i m i n a t i o n . ( P l . ' s M e m . in O p p . 3 4 . ) T h e p r i m a fttcie elements for a retaliation c l a i m under Title VII are: ( l ) t h e p l a i n t i f f w a s engaged i n a protected activity; (2) the p l a i n t i f f w a s thereafter subjected by his employer to an adverse e m p l o y m e n t action; a n d (3) there is a causal link b e t w e e n the protected activity a n d the adverse e m p l o y m e n t action. jVfanattv. B a n k o fAm., iVA., 339 F . 3 d 7 9 2 , 8 0 0 (9th Cir. 2003); Wallis, 2 6 F . 3 d a t 891. A n e m p l o y e e ' s informal complaints t o a supervisor o f a n allegedly discriminatory i n c i d e n t a r e a protected activity a n d thus satisfy the first element. Passantino v. Johnson Consumer Prods.,

I n c . , 2 1 2 F . 3 d 4 9 3 , 5 0 6 ( 9 t h Cir. 2 0 0 0 ) . A l t h o u g h t h e e l e m e n t s f o r a r e t a l i a t i o n c l a i m a r e d i f f e r e n t
f r o m a g e n d e r d i s c r i m i n a t i o n c l a i m , t h e ,I.IcDonnell D o u g l a s f r a m e w o r k h a s b e e n a d a p t e d t o b o t h claims, a n d the burden-shifting s c h e m e is the same. Stegall v. Citadel Broad. Co., 3 5 0 F . 3 d 1061, 1066 ( 9 t h Cil'. 2003). Thus, i f the employee establishes a p r i m a f t t c i e case o f retaliation, the e m p l o y e r m a y r e b u t it b y p r o d u c i n g " e v i d e n c e sufficient to dispel the inference o f retaliation raised by the p l a i n t i f f . " Cohen v. F r e d ,I,I[eyer, Inc., 686 F . 3 d 7 9 3 , 7 9 6 ( 9 t h Cil'. 1982). The b u r d e n t h e n shifts to t h e e m p l o y e e to p r o d u c e e v i d e n c