Du Ju v. Kelly Service, Inc.
Filing
133
OPINION and ORDER: Granting in Part Motion for Summary Judgment 118 ; Granting in Part Motion to Strike 127 . Defendant's Motion for Summary Judgment is granted on all claims aside from plaintiff's wage claim pursuant to ORS 652.140(1), that plaintiff's final paycheck was untimely. Signed on 9/28/2011 by Judge Ancer L. Haggerty. (sd)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
FRANCES DU JU,
Plaintiff,
Civil No. 3:08-1213-HA
OPINION AND ORDER
v.
KELLY SERVICES, INC., a foreign
business corporation,
Defendant.
HAGGERTY, District Judge:
Plaintiff, acting pro se, filed this action against her former employer alleging claims of
race and national origin discrimination in violation of 42 U.S.C. § 2000e et seq. (Title VII),
retaliation in violation of Title VII and Oregon Revised Statutes 651.010 et seq. (Title 51), and
unpaid wages. Defendant, Kelly Services Inc. (defendant or Kelly) moves for summary
judgment on all of plaintiff's claims. Defendant also moves to strike portions of plaintiff's
Surreply in Opposition to Defendant's Motion for Summary Judgment. For the following
reasons, defendant's Motion for Summary Judgment [118] is GRANTED IN PART and Motion
to Strike [127] is GRANTED IN PART.
1 - OPINION AND ORDER
BACKGROUND
The following facts are stated in the light most favorable to plaintiff, the non-moving
party and are undisputed unless noted. Defendant is a temporary staffing agency headquartered
in Troy, Michigan and doing business in Hillsboro, Oregon. Plaintiff is a Chinese-American
female who was raised in Taiwan and became a United States citizen in 1994. Her first language
is Mandarin Chinese and she speaks English as a second language.
Defendant placed an advertisement in the September 19, 2006 issue of The Asian
Reporter seeking Mandarin-speaking customer service representatives and offering a signing
bonus of $500 and a $2,000 bonus for those hirees working through January 31, 2007. Plaintiff
responded to the advertisement, and was hired by defendant on September 28, 2006 to work as a
Mandarin-speaking customer service representative at the Convergys-General Motors
(Convergys) call center in Hillsboro, Oregon.
During the first few weeks of her employment at Convergys, plaintiff participated in a
training class led by Eva Ariceaga (Ariceaga), Convergys' training manager. Also in the class
were two other Mandarin-speaking trainees; one Caucasian male, and another female of Chinese
descent. Finding the training to be too difficult, the other Asian female in the class quit after the
first day. The training, designed by Convergys, included background information about GM
vehicles, information about how to access various databases, and skills training for customer
service representatives. During the course of the training, Ariceaga would test the trainees with
quizzes and games.
Both plaintiff and the remaining trainee graduated from the training on the same day and
were placed on the call center floor. As a customer service representative, plaintiff was required
to answer telephone calls from prospective customers, answer their questions about GM vehicles,
2 - OPINION AND ORDER
and collect data for marketing purposes. Initially, plaintiff took calls from both Mandarin and
English speaking customers. However, on October 27, 2006, plaintiff was transferred to the
Mandarin-only line by Convergys, reportedly in response to customer complaints regarding
plaintiff's English. Plaintiff contends that her accent is "slight" and did not effect her job
performance. Pl. Decl.¶ 10. Plaintiff suggests it is possible that defendant, or Convergys, made
or directed the phone calls complaining of her English.1 Defendant was not involved in the
decision to transfer plaintiff to the Mandarin-only line, however, plaintiff's manager at Kelly,
April Wester (Wester), met with plaintiff to discuss the transfer. Plaintiff's pay and schedule
remained unchanged following the transfer.
In early November 2006, Convergys requested that defendant counsel plaintiff regarding
attendance issues. Over a four-week period, plaintiff had accrued four unexcused absences and
one tardy and had returned late from her breaks. For each of the unexcused absences, plaintiff
had called in sick, and on the day she was tardy, plaintiff had difficulty getting to work because
of problems with public transportation. Plaintiff had also received low quality assurance scores
on her telephone calls for failing to stick with her script.
Wester called plaintiff on multiple occasions to discuss these issues and states that
plaintiff refused to return her calls. Plaintiff claims that she routinely called Wester at her
request, but at some point, decided to begin communicating in writing only. Plaintiff sent
defendant one to three letters requesting a copy of defendant's paid time off (PTO) policy,
requesting her signing bonus, and according to plaintiff, discussing compensation for an
1
During oral argument, it was readily apparent that plaintiff's accent is more than "slight."
While plaintiff clearly has a command of the English language, her accent made it difficult for
her to be understood, requiring the court reporter to request that plaintiff repeat herself.
3 - OPINION AND ORDER
unidentified lawsuit. Plaintiff contends she sent three letters, while defendant contends they only
received either one or two letters on or about November 10, 2006, requesting her signing bonus,
a copy of the PTO policy, and any other bonuses to which she was entitled. Neither party
submitted copies of any letter.
On November 17, 2006, Wester traveled to Convergys to meet with plaintiff to discuss
performance and attendance issues. Wester met with plaintiff in a conference room at Convergys
and during the course of that meeting, plaintiff informed her that she would only communicate
with defendant in writing after defendant had responded to her letters in writing. Plaintiff walked
out of the meeting.
On November 20, 2006, Wester returned to Convergys with her manager, Julie Maxwell
(Maxwell). Maxwell and Wester, along with a Convergys human resources officer met with
plaintiff. Plaintiff informed them again that she would only communicate with them in writing
and they informed her that she was being removed from the assignment at Convergys. According
to defendant, plaintiff was told that she was being removed from the position because of her
refusal to communicate and for insubordination. Plaintiff contends that they told her she was
being terminated because of her poor English.
At the conclusion of the meeting, plaintiff was escorted to her desk to gather her
belongings and clock out. On her final day of employment at Convergys, plaintiff worked 1 hour
21 minutes 23 seconds (1.3564 hours according to plaintiff's calculations). On November 28,
2006, plaintiff received her final paycheck, paying her for 1.25 hours of work on her final day at
Convergys. After her removal from the temporary assignment at Convergys, defendant contends
that plaintiff remained eligible for placement at other assignments. In order to remain eligible for
such placement, plaintiff was required to maintain contact with defendant regarding her
4 - OPINION AND ORDER
availability. Plaintiff did not do so and was never assigned to a new job.
During the course of her employment with defendant, plaintiff contends that she was
subjected to a number of instances of discrimination. Based on plaintiff's briefing, it is unclear
exactly which incidents that took place were discriminatory, accordingly, only the most serious
incidents are recounted below. The vast majority of these allegedly discriminatory actions were
perpetrated by Convergys's employees.
Plaintiff contends that she was subjected to discrimination during her training class with
Ariceaga. According to plaintiff, Ariceaga favored the Caucasian male in the class. Ariceaga
reportedly praised the other trainee for typing fast, but did not praise plaintiff for the same; said
that plaintiff and the other trainee had tied during a game that plaintiff had actually won; and
blocked plaintiff's view of the blackboard with her heavyset body. On October 4, 2006, Ariceaga
reportedly told plaintiff that she had learned from other trainees of Chinese heritage that
"Chinese people don't ask teacher [sic] questions to show their respect." Pl. Depo. 80:25-81:1.
On October 5, 2006, plaintiff alleges that Ariceaga asked for headache medication from the
students in the class. Plaintiff reported that she only had prescription headache medication and
could not provide it to Ariceaga. Plaintiff asserts that when returned home from work that
evening, she discovered that a Convergys security guard had searched her backpack at Ariceaga's
request and had taken one of her prescription pills. Plaintiff did not actually see anyone search
her bag, and there is no evidence in the record that anybody else did either. Lastly, plaintiff
contends that Ariceaga complained about plaintiff to her Convergys team manager, Laurie
Johnson, at the conclusion of the training class, though plaintiff did not hear the conversation.
Plaintiff was placed on the call center floor, along with the other trainee, at the conclusion of the
training.
5 - OPINION AND ORDER
Once plaintiff was placed on the call center floor, the alleged discrimination continued.
Plaintiff claims that an unknown Convergys IBM consultant sabotaged her computer by placing a
"black square" on her screen, preventing her from viewing portions of the screen. Her team
managers attempted to help her fix the problem. She also claims that she did not have access to
web pages for certain makes and models of GM vehicles when other employees did.
In addition to the alleged search of her backpack, plaintiff contends that Convergys's
security guards discriminated against her on at least two other occasions. The first is when she
did not receive her security badge in a timely fashion. Plaintiff is not sure who delayed her
receipt of the security badge, and whether her receipt of the badge took longer than it did for
other employees. The record reflects that it often took a couple weeks for Convergys's
employees to receive their security badge. The second is when she left the lights on in her car
and the security guards did not page her. Her car's battery died. Plaintiff asserts that other
employees were paged when they left the lights on in their cars, however, according to Ariceaga,
there was no intercom system at Convergys because it is a call center. The security guards later
attempted to help plaintiff jump-start her car.
Lastly, plaintiff claims she was discriminated against by defendant. Plaintiff did not
receive her signing bonus until sometime in mid to late November. Her Caucasian coworker
received his at approximately the same time and they may have received their bonuses on the
same day. Plaintiff also contends that the manner in which she was terminated was
discriminatory because she was escorted from the building, and was not paid in full for her last
day of work. She did not receive pay for .1064 hours of work ($1.17 according to plaintiff's
calculations) and was not paid until one week after her last day of work. Additionally, plaintiff
claims that the termination of her assignment at Convergys was retaliatory. Plaintiff contends
6 - OPINION AND ORDER
she complained to Wester regarding the search of her backpack and the comment made by Ms.
Ariceaga about Chinese students not asking questions at a meeting held on October 10 or 11,
2006. Plaintiff asserts that she reported these actions had been taken against her because of her
race or national origin. Defendant responds that the only complaints received were regarding the
delay of her bonus and the search of her purse, and that plaintiff never indicated that she believed
these were the result of discrimination.
STANDARDS
Summary judgment is appropriate "if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). On summary judgment, the court must view the facts and draw inferences in the manner
most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655
(1962). The moving party bears the initial burden of demonstrating the absence of a genuine
dispute of material fact for trial, but it need not disprove the other party's case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party meets its burden, the
adverse party may not rest upon the mere allegations or denials of the adverse party's pleading,
but must set forth specific facts showing that there is a genuine dispute for trial. Id. at 248-49.
All reasonable doubt as to the existence of a genuine factual dispute should be resolved against
the moving party. MetroPCS, Inc. v. City & County of San Francisco, 400 F.3d 715, 720 (9th
Cir. 2005) (citation omitted). Additionally, this court is mindful of the Ninth Circuit's high
standard for granting summary judgment in employment discrimination cases. Schnidrig v.
Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996).
However, deference to the non-moving party has limits. The non-moving party "must set
forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The
7 - OPINION AND ORDER
"mere existence of a scintilla of evidence in support of the [non-moving party's] position [is]
insufficient; there must be evidence on which the jury could reasonably find for [the non-moving
party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Where "the record taken as
a whole could not lead a rational trier of fact to find for the non-moving party, there is no
'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citation omitted).
DISCUSSION
Plaintiff brings three claims for race and national origin discrimination in violation of
Title VII, retaliation in violation of Title VII and Oregon's Title 51, and unpaid wages in
violation of Oregon law. Defendant moves for summary judgment on all three claims in
plaintiff's Complaint. Defendant also moves to strike portions of plaintiff's Surreply.
1.
First Claim for Relief - Race and National Origin Discrimination
Plaintiff's first claim for relief alleges race and national origin discrimination in violation
of Title VII. Plaintiff advances theories of disparate treatment, disparate impact, and hostile
work environment. The standard for establishing a prima facie case of discrimination is identical
under federal and Oregon law. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th
Cir. 2001) (citing Henderson v. Jantzen, Inc., 719 P.2d 1322, 1323-24 (Or. Ct. App. 1986)).2
A.
Disparate Treatment
In the Ninth Circuit, claims of disparate treatment discrimination, such as those in this
case, are analyzed pursuant to the burden-shifting framework established by McDonnell Douglas
2
Though plaintiff's pleadings are not entirely clear, it does not appear that she properly
alleges violations of Oregon law in her first claim for relief. However, because she is pro se, this
court gives her the benefit of the doubt and analyzes her discrimination claims as if she had
alleged violations of both state and federal law.
8 - OPINION AND ORDER
Corp. v. Green, 411 U.S. 972 (1973). Chuang v. Univ. of Cal., 225 F.3d 1115, 1123 (9th Cir.
2000). Under the McDonnell Douglas framework, "a plaintiff alleging disparate treatment under
Title VII must first establish a prima facie case of discrimination." Id. (citation omitted). To
establish a prima facie case, a plaintiff must demonstrate that: (1) she is a member of a protected
class, (2) she was performing her job according to her employer's legitimate expectations, (3) she
was subject to an adverse employment action, and (4) similarly situated persons outside of her
protected class were treated more favorably. Id. "The requisite degree of proof necessary to
establish a prima facie case . . . on summary judgment is minimal and does not even need to rise
to the level of a preponderance of the evidence." Wallis v. J.R. Simplot Co., 26 F.3d 885, 889
(9th Cir. 1994). Once the plaintiff has established a prima facie case, the burden of production
shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the challenged
action." Chuang, 225 F.3d at 1123-24. If the employer meets this burden of production, "the
plaintiff must show that the articulated reason is pretextual either directly by persuading the court
that a discriminatory reason more likely motivated the employer or indirectly by showing that the
employer's proffered explanation is unworthy of credence." Id. at 1124 (citing Texas Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981), internal quotations omitted).
In an employment discrimination action, the plaintiff "need produce very little evidence
in order to overcome an employer's motion for summary judgment," because "'the ultimate
question is one that can only be resolved through a searching inquiry-one that is most
appropriately conducted by a factfinder, upon a full record.'" Id. (quoting Schnidrig, 80 F.3d at
1410.)
Here, defendant contends that plaintiff has failed to prove a prima facie case of disparate
treatment discrimination, and that in the alternative, plaintiff has failed to show that defendant's
9 - OPINION AND ORDER
proffered reason for removing her from Convergys was pretextual. Specifically, defendant
contends that plaintiff cannot establish the second, third, or fourth elements of her disparate
treatment claim.
Plaintiff clearly meets the first element based on her race (Asian) and national origin
(Chinese). In support of the second element, that plaintiff was performing her job according to
defendant's legitimate expectations, the only admissible evidence3 offered by plaintiff is her selfassessment of her performance, which she claims was adequate. An employee's subjective selfassessment is relevant evidence for the purposes of the minimal showing needed to establish a
prima facie case, however, it is not clear if such evidence is sufficient alone to meet plaintiff's
burden. Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 659-60 (9th Cir. 2002)
(holding that plaintiff employee's self-assessment of his performance was relevant, and when
bolstered by other evidence that he had received no formal write-ups and that his work-product
equaled that of his co-workers, was sufficient to prove a prima facie case). Unlike in Aragon,
plaintiff has produced no evidence, aside from her self-assessment, that she performed her job
adequately. See Nguyen v. Qualcomm, Inc., No. 09CV1925-MMA, 2011 WL 1119564, *8 (S.D.
Cal. March 28, 2011) (holding that absent additional evidence, a plaintiff's self-assessment alone
is insufficient to establish a prima facie case). Moreover, it is undisputed that she did not meet
defendant's legitimate and reasonable expectations regarding communication, given that she
acknowledges walking out of a meeting with her supervisor and insisting that all communication
between her and her employer take place in writing. It is only because plaintiff is pro se, that this
court gives her the benefit of the doubt and assumes, for the purposes of argument, that she has
3
Plaintiff also offers inadmissible hearsay statements that she received compliments from
a Convergys manager.
10 - OPINION AND ORDER
satisfied the minimal requirements of proving the second element of her prima facie case.
Defendant contends that plaintiff was not subject to an adverse employment action, while
plaintiff contends that she was subject to a number of adverse employment actions. "An adverse
employment action is one that materially affects the compensation, terms, conditions, or
privileges of . . . employment." Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008)
(quotation and citations omitted). It is quite obvious that a number of the alleged adverse
employment actions were not, in fact, adverse employment actions. For example, the "black
square" on her computer screen was an instance of a vexing and perhaps avoidable technical
problem, not an employment action, and the failure of the security guards to page her regarding
her lights, was merely a self-created inconvenience.
The only two actions that are arguably adverse employment actions were her transfer to
the Mandarin-only line, and her removal from Convergys. Her transfer to the Mandarin-only line
fails for two reasons. The first is that defendant did not move her to the Mandarin-only line,
Convergys did. See, e.g., Woods v. Chub & Son, 156 Fed. Appx. 906, (9th Cir. 2005) (employer
not liable for actions of a third party merely because of presence during conduct of third party);
Caldwell v. ServiceMaster Corp., 966 F. Supp. 33, 46-48 (D.D.C. 1997) (holding that a
defendant temp agency employer is liable for discriminatory conduct only when a plaintiff can
show the defendant knew or should have known about discrimination and failed to take
corrective measures within its control). Here, defendant undoubtedly knew about the transfer to
the Mandarin-only line, but there is no evidence that the transfer was either discriminatory, or
that defendant had any control over the decision. Caldwell, 966 F. Supp. at 48 ("[w]hile
reassigning [plaintiff] was within [defendant's] control, changing [the] work environment was
not"). Secondly, and more importantly, the move to the Mandarin-only line is not an adverse
11 - OPINION AND ORDER
employment action. Her move to the Mandarin-only line was not accompanied by a pay-cut,
demotion, or any other material change in her employment conditions. However, there can be no
doubt that the removal from Convergys was an adverse employment action. Accordingly,
plaintiff has satisfied the third element of her prima facie case.
Plaintiff fails to satisfy the fourth element of her prima facie case. The only evidence she
offers that similarly situated persons outside of her protected class were treated more favorably is
her assertion that her Caucasian co-worker was treated more favorably than she. Much of the
evidence she offers takes the form of inadmissible hearsay, but in short, she contends that
Ariceaga favored him during their training class and that her co-worker's Mandarin was
comparatively worse than her English yet he was not transferred to the English-only line.
Employees are "similarly situated when they have similar jobs and display similar
conduct." Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (citing Ward v.
Procter & Gamble Paper Prods. Co., 111 F.3d 558, 560-61 (8th Cir. 1997)). "The employees
need not be identical; they must be similar in all material respects." Nicholson v. Hyannis Air
Serv., Inc., 580 F.3d 1116, 1125 (9th Cir. 2009). While she and her Caucasian co-worker held
the same position, there is no evidence that there were any complaints regarding either his
English or his Mandarin. Additionally, there is no evidence that he refused to communicate with
defendant other than in writing, that he walked out of any meetings with defendant, that he had
attendance problems, or that he received low quality assurance scores. Vasquez, 349 F.3d at 641
(holding that two employees are not similarly situated when there is no evidence that one did not
engage in problematic conduct of comparable seriousness to the other). Here, the only evidence
to suggest that her co-worker was in any way deficient is her assertion that her English was better
than his Mandarin, and that he occasionally needed help with his Mandarin. Not only has she
12 - OPINION AND ORDER
failed to show that her co-worker was similarly situated to herself, plaintiff offers scant evidence
that he was treated more favorably than she. In fact, the evidence demonstrates that they both
graduated from the training class on the same day, were both placed on the call-center floor at the
same time, and both received their signing bonus at approximately the same time, if not on the
same day.
Had plaintiff been able to meet all four elements of her prima facie case, defendant has
offered more than enough evidence to meet their burden of production to articulate a legitimate
reason (her refusal to communicate with her supervisor and her insubordination) for removing
her from Convergys. The insubstantial and uncompelling evidence offered in support of
plaintiff's prima facie case, fails entirely at the third stage of the McDonnell Douglas framework.
See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1158 (9th Cir. 2010) (noting that the burden
of proof is substantially higher at the pretext stage, requiring specific, substantial evidence).
B.
Disparate Impact
Plaintiff contends that defendant's racial discrimination resulted in a disparate impact on
plaintiff. Disparate impact claims differ from disparate treatment claims in that they "involve
employment practices that are facially neutral in their treatment of different groups but that in
fact fall more harshly on one group than another and cannot be justified by business necessity."
Intl. Bhd. Of Teamsters v. U.S., 431 U.S. 324, 335 n.15 (1977). In support of such a claim, a
plaintiff might identify an employment practice or policy causing the disparate impact and, may
in fact, offer statistical evidence in support of the claim. As plaintiff has offered no plausible
disparate impact theory, and no evidence in support of that theory, this court can only conclude
that she proceeded under this theory accidentally, and must reject that claim.
C.
Hostile Work Environment
13 - OPINION AND ORDER
Plaintiff contends that the discrimination she was subjected to resulted in a hostile work
environment. In particular, she claims that the black square on her computer made it difficult for
her to see the computer screen well, made her dizzy, caused headaches, made it difficult for her
to perform her job adequately, and ultimately created a hostile work environment.
To establish a prima facie case for a hostile work environment claim, plaintiff must raise
a triable issue of fact as to whether: (1) defendant subjected her to verbal or physical conduct
based on her race or national origin; (2) the conduct was unwelcome; and (3) the conduct was
sufficiently severe or pervasive to alter the conditions of her employment and create an abusive
working environment. Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008). It is
not a trifling matter to prove that conduct is sufficiently severe or pervasive enough to satisfy the
third element of a prima facie case. See Manatt v. Bank of Am., 339 F.3d 792, 798 (9th Cir.
2003) (finding that employees who used the phrase "China man" and pulled their eyes back with
their fingers to mock the appearance of Asians did not create a hostile work environment for a
Chinese woman); Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110 (9th Cir. 2000) (finding no
hostile work environment where supervisor referred to a female superintendent as a "castrating
bitch," "madonna," or "regina" and called the plaintiff "Medea"); Kang v. U. Lim Am., Inc., 296
F.3d 810, 817 (9th Cir. 2002) (finding harassment where employer verbally and physically
abused plaintiff because of his race, including informing plaintiff on numerous occasions that he
had to work harder because he was Korean and that Koreans did not work as hard as others);
Draper v. Coeur Rochester, 147 F.3d 1104, 1109 (9th Cir. 1998) (finding hostile work
environment where supervisor made repeated sexual remarks to plaintiff employee, told her his
sexual fantasies and that he wanted to have sex with her, commented on her physical
characteristics, and asked over a loudspeaker if she needed help changing her clothes).
14 - OPINION AND ORDER
Plaintiff's hostile work environment claim flirts with frivolity. Considering each of the
purpored acts of discrimination, including the alleged sabotage of her computer, it is
unquestionable that plaintiff has failed to show that the conduct was either severe or pervasive.
Moreover, nearly all of the discriminatory acts were carried out by Convergys's employees and
were not subject to either the approval or control of defendant. As no reasonable jury could find
that plaintiff was subject to discrimination under any of the above three theories, defendant is
awarded summary judgment on plaintiff's discrimination claim.
2.
Retaliation Claim
Plaintiff asserts that she complained to defendant about the search of her backpack and
the comment made about Chinese students not asking questions and reported that these incidents
were the result of discrimination.4 Plaintiff contends that these statements were made at a
meeting held on October 10 or 11, 2006. Though plaintiff does not address the issue in her
briefing regarding retaliation, this court has also considered the fact that she wrote at least one
letter regarding her unpaid signing bonus. Plaintiff was removed from Convergys on November
21, 2006.
Retaliation claims under Oregon state law are analyzed pursuant to the same framework
as those brought under Title VII. Harris v. Pameco Corp., 12 P.3d 524, 532 (Or. Ct. App. 2000).
To make out a prima facie case of retaliation, plaintiff must show that (1) she engaged in
a protected activity, (2) she suffered an adverse employment action, and (3) there was a causal
link between her activity and the employment action. Raad v. Fairbanks N. Star Borough Sch.
4
Defendant contends that these portions of her declaration are inadmissible hearsay.
However, for purposes of analyzing plaintiff's retaliation claim, these statements are not
considered for the truth of the matter asserted.
15 - OPINION AND ORDER
Dist., 323 F.3d 1185, 1197 (9th Cir. 2003). The causal connection element may be inferred
based upon the temporal proximity of the adverse action and the complaint of discrimination.
Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) ("Causation sufficient to establish . . .
[a] prima facie case may be inferred from circumstantial evidence, such as the employer's
knowledge that the plaintiff engaged in protected activities and the proximity in time between the
protected action and the allegedly retaliatory [activity]."). Thereafter, as with plaintiff's disparate
treatment claim, the burden of production shifts to the employer to present legitimate,
nonretaliatory reasons for the adverse employment action. Yartzoff, 809 F.2d at 1376. Once the
employer carries this burden, plaintiff must produce sufficient evidence to create a genuine issue
of material fact as to whether the reason advanced by the employer was a pretext. Id.
This court concludes that plaintiff has satisfied her burden of proving a prima facie case.
Plaintiff has adduced enough evidence to create a question of fact regarding whether she engaged
in a protected activity; her complaints regarding discrimination. Second, as discussed above, her
removal from Convergys constituted an adverse employment action. Lastly, the court is required
to infer that there is a causal link between her discrimination complaint and her removal based on
the temporal proximity of less than two months between the two actions. Yartzoff, 809 F.2d at
1376 (finding causal link based on temporal proximity of three months). Accordingly, the
burden of production shifts to defendant to present legitimate, nonretaliatory reasons for the
removal from Convergys.
Defendant clearly meets their burden of production in presenting legitimate,
nonretaliatory reasons for removing plaintiff from Convergys. The undisputed evidence
demonstrates that plaintiff refused to communicate with defendant other than in writing, and
walked out of a meeting with her supervisor. These issues alone would provide more than
16 - OPINION AND ORDER
enough evidence for defendant to meet their burden of production, however, defendant has also
produced evidence demonstrating that plaintiff had unexcused absences, and that Convergys
complained regarding plaintiff's performance.
Once defendant carries the burden of "articulating a legitimate nonretaliatory reason . . .
the legally mandatory inference of retaliatory discrimination arising from the plaintiff's prima
facie case drops away." Yartzoff, 809 F.2d at 1377 (citing Burdine, 450 U.S. at 255 n.10).
Plaintiff is then charged with producing evidence from which a reasonable jury could infer that
defendant removed her from Convergys, not for the proffered reasons, but because she
complained regarding the discrimination. Plaintiff can demonstrate that the proffered reasons are
pretextual "either directly by persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the employer's proffered explanation is
unworthy of credence." Burdine, 450 U.S. at 256. The Ninth Circuit has noted that "a grant of
summary judgment, though appropriate when evidence of discriminatory intent is totally lacking,
is generally unsuitable in Title VII cases in which the plaintiff has established a prima facie case
because of the elusive factual question of intentional discrimination." Yartzoff, 809 F.2d at 1377
(quotation and citations omitted). Here, evidence of discriminatory intent is totally lacking, and
summary judgment is appropriate. On the whole, this case lacks any substantial evidence of
discriminatory intent. The sole smidgen of any sort of discriminatory animus, was the statement
made by Ariceaga regarding Chinese students not asking questions. Ariceaga was not employed
by defendant. There is no evidence whatsoever of defendant's discriminatory or retaliatory
intent. Defendants are granted summary judgment on plaintiff's retaliation claim.
3.
Wrongful Termination
Plaintiff requests that this court allow her to proceed on a wrongful termination theory,
17 - OPINION AND ORDER
should her discrimination and retaliation claims be dismissed. Plaintiff bases her wrongful
termination claim on her assertion that defendant terminated her in retaliation for her request for
the signing bonus and PTO policies. The Ninth Circuit upholds a "policy of liberal construction
in favor of pro se litigants." Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998). Litigants have
a statutory right to self-representation in civil matters, see 28 U.S.C. § 1654, and are entitled to
meaningful access to the courts. Rand, 154 F.3d at 957 (citing Bounds v. Smith, 430 U.S. 817,
823 (1977); Wolff v. McDonnell, 418 U.S. 539, 579 (1974); Johnson v. Avery, 393 U.S. 483
(1969); Hatfield v. Bailleaux, 290 F.2d 632, 637 (9th Cir. 1961)). "Consequently, [the courts]
tolerate informalities from civil pro se litigants." Id. (citations omitted). However, this court's
indulgence of plaintiff's technical deficiencies and informality has limits. Plaintiff first raises her
wrongful termination claim in her Response to defendant's Motion for Summary Judgment.
Even as a pro se litigant, plaintiff raises this claim too late for consideration by this court.
4.
Unpaid Wages
Plaintiff seeks unpaid wages for the last day of her employment at Convergys as well as a
penalty for wages that were not paid in a timely fashion. As discussed above, plaintiff received
wages for her last day of work one week after her final day of employment and according to
plaintiff's calculations, $1.17 short. Pursuant to Oregon's wage payment statutes, when an
employer discharges an employee, "all wages earned and unpaid at the time of the discharge or
termination become due and payable not later than the end of the first business day after the
discharge or termination." ORS 652.140(1). The employee may be entitled to penalty wages if
the employer willfully fails to make the payment by the end of the first business day after
termination. ORS 652.150.
This court first turns to plaintiff's claim that her final paycheck was short, as it included
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wages for 1.25 hours of work, rather than the 1.3564 hours that plaintiff actually worked.
Defendant contends that plaintiff was paid appropriately, as it lawfully rounded plaintiff's wages
to the nearest quarter hour. This court agrees. Oregon does not have a regulation or statute
regarding rounding, however, the Oregon Bureau of Labor and Industries (BOLI) relies on
federal regulations for guidance. See BOLI, Employer Can "Round" Hours, But Must ensure that
All Time is Actually Paid, www.oregon.gov/BOLI/TA/TA_COL_012307_Rounding_Hours.pdf.
(citing 29 C.F.R. 785 and noting that rounding in increments no longer than fifteen minutes is
acceptable so long as it does not result, over a period of time, in a shortfall of wages). Because
there is no evidence to suggest that defendant's rounding policy was not applied fairly, or resulted
in unpaid wages over time, defendant is awarded summary judgment on plaintiff's claim for
$1.17 in unpaid wages.
The court now turns to plaintiff's claim that her final paycheck was untimely. Upon
termination, plaintiff was entitled to all unpaid wages "not later than the end of the first business
day after the discharge or termination." ORS 652.140(1). Here the only questions are whether
plaintiff's removal from Convergys constituted "discharge or termination" and, if so, whether
defendant "willfully" delayed payment of her wages. Defendant contends that plaintiff was not
terminated, and remained an employee eligible for placement at another firm following her
removal from Convergys.
"Termination" is not defined in ORS 652.140, however, the Oregon Supreme Court
defined the term for the purposes of the statute in State ex rel Nilsen v. Johnston, 377 P.2d 331,
333-34 (Or. 1962). That "definition becomes a part of the statute as if written into it at the time
of its enactment." Wilson v. Smurfit Newspring Corp., 107 P.3d 61, 66 (Or. Ct. App. 2005)
(citation and quotation omitted). The Johnston court held that "[t]ermination of employment
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contemplates a severance of the employment relationship rather than a mere temporary cessation
of work." Johnston, 377 P.2d at 333-34. Whether there has been a termination is "for the trier of
fact to resolve from a consideration of all of the circumstances." Id. at 334. However, where
"the historical facts are undisputed, the question becomes one of law" to be resolved by the court
"because in such circumstances the question is purely one of statutory interpretation." Wilson,
107 P.3d at 66 n.4.
The question here is factual, rather than legal. Plaintiff technically remained available for
placement in defendant's computer system following her removal from Convergys, and plaintiff
signed an agreement acknowledging that it was her responsibility to remain in contact with
defendant regarding her availability for future placement. However, she signed this agreement
prior to her removal from Convergys on November 21, 2006, and the manner in which her
employment with Convergys concluded raises questions regarding whether it was in fact a
termination. First and foremost, plaintiff contends that Wester told her she was being terminated.
Additionally, the primary reasons proffered for plaintiff's removal from Convergys
(insubordination and refusal to communicate) are not particular to her work at Convergys, but are
germane to her employment with defendant generally. These facts raise substantial questions as
to whether her removal from Convergys was in fact more than "a mere temporary cessation of
work" and was indeed, a termination from defendant's employ as well. That defendant's
computer system listed plaintiff as available for placement means little if there was no chance
defendant would place her in another firm. Certainly, it is difficult to imagine defendant placing
plaintiff in a second position given the unhappy conclusion to her placement at Convergys.
This court also finds that there are questions regarding whether defendant "wilfully"
withheld plaintiff's wages. In this context, the term wilful does not necessarily imply malice,
20 - OPINION AND ORDER
"but merely that the thing done or omitted to be done was done or omitted intentionally."
Johnston, 377 P.2d at 333(quotation and citation omitted). In short, a defendant acts wilfully,
when it knows what it is doing, intends to do what it is doing, and is a free agent. Id. This
"definition excludes the [defendant] who does not know that [its] employee has left [its] employ
or who has made an unintentional miscalculation." Id. Based on the evidence submitted, a jury
could reasonably conclude that defendant knew plaintiff had been terminated, and chose to pay
plaintiff a week after her termination, rather than immediately depositing plaintiff's final
paycheck. Accordingly, plaintiff may proceed with this wage claim and may seek penalty wages
from the time of her alleged termination until she received her wages on November 28, 2006.
5.
Motion to Strike
Defendant moves to strike portions of plaintiff's Surreply [125] because it contains
arguments regarding the substance of the underlying Motion for Summary Judgment in addition
to plaintiff's responses to defendant's evidentiary objections as allowed by Local Rule 56(b).
Pursuant to Local Rule 7-1(e)(3), plaintiff was not permitted to file a surreply absent permission
from the court on any issue aside from defendant's evidentiary objections. In defendant's Reply
brief, defendant asserted eighty-three evidentiary objections to statements contained in pro se
plaintiff's Response and declaration. The majority of these objections, while technically correct,
were trivial and unnecessary. Especially so because plaintiff is acting pro se. In response to
these objections, plaintiff filed her Surreply, addressing both the evidentiary objections and the
substance of the Motion for Summary Judgment. Much like defendant's evidentiary objections,
defendant's Motion to Strike is mostly correct, and equally pointless. The vast majority of the
paragraphs objected to, even if considered by the court, would not provide a basis for plaintiff to
avoid summary judgment on the bulk of her claims as they merely reiterate unpersuasive
21 - OPINION AND ORDER
arguments already in the record. The court hereby grants defendant's Motion to Strike in part.
Defendant's motion is denied with respect to paragraphs 37, 40-42, 50-52, and 65. These
paragraphs, while not utilizing proper legalese, do provide a basis for the court to analyze
defendant's evidentiary objections.
CONCLUSION
For the reasons provided, defendant's Motion for Summary Judgment [118] is
GRANTED IN PART and Motion to Strike [127] is GRANTED IN PART. Defendant's Motion
for Summary Judgment is granted on all claims aside from plaintiff's wage claim pursuant to
ORS 652.140(1), that plaintiff's final paycheck was untimely.
IT IS SO ORDERED.
DATED this 28th day of September, 2011.
/s/ Ancer L. Haggerty
Ancer L. Haggerty
United States District Judge
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