Arnoth v. DHL Express (USA), Inc.

Filing 64

OPINION AND ORDER: DHL'S Motion for Summary Judgment 36 is granted with respect to Arnoth's claims for injured worker discrimination and failure to reinstate, in violation of Or. Rev. Stat. 659A.040, 659A.043 and 659A.046; DHL's motion for summary judgment is DENIED with respect to Arnoth's claim for disparate treatment sex discrimination under Or. Rev. Stat. 659A.030 (a) and (b). Signed on 3/2/10 by Magistrate Judge Dennis J. Hubel. (ljl)

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10 RHONDA ARNOTH,

IN THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON

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Plaintiff,

C a s e N o . CV 0 9 - 2 4 1 - H U OPINION AND ORDER

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v.
DHL EXPRESS ( U . S . A . ) , I N C . , Defendant. Katelyn S. Oldham O l d h a m Law O f f i c e 620 S.W. Sixth Avenue Portland, Oregon 97205 Attorney for plaintiff R i c h a r d R. M e n e g h e l l o Laura P. Jordan Fisher & Phillips 111 S.W. F i f t h Avenue, S u i t e 1250 Portland, Oregon 97204 Attorneys for defendant HUBEL, M a g i s t r a t e J u d g e : T h i s i s a n a c t i o n b y R h o n d a A r n o t h a g a i n s t DHL E x p r e s s U. S . A . , Inc. (DHL) , a s s e r t i n g c l a i m s f o r i n j u r e d w o r k e r d i s c r i m i n a t i o n a n d

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failure to r e i n s t a t e , in violation of Or. Rev. Stat. §§ 659A.040, 659A.043, and 659A.046; and for disparate treatment sex

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discrimination under Or. Rev. S t a t . 659A.030 (a) and (b). She seeks damages for past and future l o s t wages and benefits; compensatory damages for emotional d i s t r e s s ; and reinstatement to her former

4 position or a comparable one.
5 6 7 8 9 Arnoth worked for DHL i n t h e P o r t l a n d s t a t i o n a s a Field

Service Supervisor, the only female in that position at the time of her termination. On D e c e m b e r 2 0 , 2007, Arnoth filed a worker's 2 0 0 8 . On

compensation claim, February 14, 2008,

w h i c h DHL a c c e p t e d o n F e b r u a r y 1 9 ,

she was released to return to modified work as part of a she had more

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d u t y , b u t DHL t e r m i n a t e d h e r o n F e b r u a r y 1 3 , 2 0 0 8 , reduction in force (RIF). Arnoth alleges that

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s e n i o r i t y t h a n o t h e r F i e l d S e r v i c e S u p e r v i s o r s i n P o r t l a n d who w e r e not laid off, and that none of the male Field Service Supervisors a t the Portland s t a t i o n l o s t his job when she did. DHL m o v e s f o r s u m m a r y j u d g m e n t o n a l l c l a i m s .
Factual Background

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A r n o t h w a s h i r e d a t t h e P o r t l a n d s t a t i o n i n May 2 0 0 6 . S h e w a s one of six Field Services Supervisors at the Portland station, the o n l y f e m a l e i n t h a t p o s i t i o n . Two o f t h e F i e l d S e r v i c e s S u p e r v i s o r s were hired before Arnoth, and three were hired a f t e r she was.
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Declaration of Stephen Quimby
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4; Declaration of Katelyn Oldham,

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8, Exhibits 6 and 7. Arnoth reported to District Field Services

M a n a g e r (DFSM) A r d e e n P o r t e r . D e c l a r a t i o n o f L a u r a J o r d a n E x h i b i t 1 (Pltf. dep.) 75:23-76:8. During Arnoth's employment, the Portland s t a t i o n operated Monday through Saturday. Quimby Declaration
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5.

There were three supervisor s h i f t s on weekdays: an opening s h i f t ,

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a midday s h i f t , and a closing s h i f t .

Id. During weekday s h i f t s ,

each supervisor was responsible for supervising p a r t i c u l a r aspects of the operation, ramp, the drivers, fill including the inbound and outbound sort, and the agents. Id. Supervisors were of the also the

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expected to station. Id.

in as

needed,

depending on the needs

The Saturday s h i f t had only one s h i f t with one supervisor, because fewer employees worked on Saturdays and fewer packages

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moved through the f a c i l i t y , compared to weekdays. P l t f . dep. 80:713; 81:2-4. The supervisor assigned to the Saturday s h i f t worked Tuesday through Saturday, while the other supervisors worked Monday through Friday. Quimby Declaration vary on the basis of their
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6. Supervisors' pay did not nor did assignment to the

shifts,

Saturday shift affect a supervisor's opportunities for advancement within the company. Quimby Declaration
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6. However, Arnoth a s s e r t s

t h a t the Saturday supervisor job was l e s s desirable because the Saturday supervisor operated alone, had no support, and did not
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i n t e r a c t w i t h o t h e r s u p e r v i s o r s o r t h e DFSM. Q u i m b y D e c l a r a t i o n 6; Pltf. dep. 8:18-9:9; 160:12-14.

The duties of Field Services Supervisors changed depending on the needs of the s t a t i o n . At various times, Arnoth was i n charge of inbound operations, outbound operations, check ride supervision,
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and supervision of the Saturday s h i f t . Quimby Declaration pltfs. dep. 70:10-17; 79:20-80:6. In July 2007 Porter
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5;

transferred

to

another

station.

Declaration of David Grudin

4. In l a t e September or October 2007,

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Stephen

Quimby

became
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the

new

DFSM

for

the

Portland

station.

Quimby Declaration

2; p l t f s . dep. 77:25-78:3. During the interval station manager

between Porter's transfer and Quimby's arrival,

Chris Rooney supervised the Field Services Supervisors. P l t f s . dep. 77:25-78:3. Rooney assigned Arnoth to the Saturday s h i f t , t e l l i n g her he needed someone with her experience for t h a t s h i f t . PI t f s . dep.

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8 11:24-12:1; 12:14-19. Arnath has testified that "past practice"
9 10 dictated that the least senior supervisor assume Saturday s h i f t duties. Id. at 13: 22-14: 3. During Arnoth's tenure at DHL, the

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S a t u r d a y s h i f t p o s i t i o n was o c c u p i e d by A r n o t h , two o t h e r women, and one man. P1tf. dep. 14:4-18:6. Quimby October, supervised Arnoth and for approximately prior to three her months, on

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November,

December

2007

inj ury

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D e c e m b e r 2 0 , 2 0 0 7 . When Q u i m b y b e c a m e DFSM, h e d i d n o t c h a n g e t h e schedules of the Field Services Supervisors. Quimby Declaration 17. Accordingly, Arnoth continued to work Tuesday through Saturday. Id. Arnoth has t e s t i f i e d t h a t i n October 2007, Quimby assigned her to dispatch duties, which "made for 12 hour days." PI t f . dep.

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10:14-24. According to Arnoth, Quimby's stated reason for assigning her to dispatch was to cover for the regular dispatcher while she was out on maternity leave. Arnoth Declaration
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4. Arnoth states

that she believes other administrative s t a f f could have performed these duties, and that by the time of her injury, December 20,

2007, and even by the time of her termination in February 2007, the regular dispatcher had s t i l l not gone on maternity leave. Id.

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Arnoth s t a t e s t h a t none of the male supervisors was assigned to dispatch. Id. Arnoth also states that to her knowledge, none of

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the male supervisors was required t o dispatch on Monday, her day off. Id. Arnoth has t e s t i f i e d t h a t i n October 2007, Quimby y e l l e d a t her in front of staff, supervisors' meetings, see Arnoth Declaration and that he began to
<j[

7,1 and during

exclude

her

from

supervisors' meetings, the frequency of which declined from weekly to "maybe once a month." Id.
23:15-21; 26:1-8. 2 However,

Arnoth

made no complaints to management about Quimby's treatment of her. Quimby Declaration
<j[

8; Grudin declaration

<j[

5.

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Arnoth s t a t e s i n her d e c l a r a t i o n t h a t when she was assigned dispatch d u t i e s , she t o l d Quimby i t would be d i f f i c u l t t o reconcile dispatching with her other job duties requiring that she be in the field for periods of three to eight hours at a Declaration
<j[

time.

Arnoth

5.

Arnoth states that other supervisors were not

required t o spend as much time i n the f i e l d , and could more e a s i l y have handled dispatching. rd. Quimby refused her request t o assign some of her d u t i e s t o other supervisors. Id. In November 2007, DHL a n n o u n c e d e l i m i n a t i o n o f i t s d o m e s t i c

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e x p r e s s s e r v i c e and ground s e r v i c e s , which were phased out i n 2008 Arnoth also s t a t e s in her d e c l a r a t i o n t h a t she saw Quimby yell at Porter during a meeting, and that drivers frequently c o m p l a i n e d t o h e r a b o u t Q u i m b y ' s " c o m m u n i c a t i o n s t y l e . " I d . a t <j[
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7.

2S
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2Arnoth has testified that meetings usually occurred once a week, but that they were held only about once a month during DHL's busy season, November and December. P l t f . dep. 26:4-8;

50:7-9.
OPINION AND ORDER P a g e 5

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and discontinued entirely by January 2009. Aguilar
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Declaration of Kelly

3, 4. 2007, Arnoth was given an o r a l warning for in

On D e c e m b e r 1 5 , failure to ensure

deli very of Saturday Nordstrom shipments

October 2007 and December 2007. The warning was documented as a
~Corrective

Action." Quimby Declaration

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10,

Exhibit 3; Oldham

Declaration, Exhibit 3. Arnoth has t e s t i f i e d t h a t Quimby did not discipline male supervisors who were responsible for failed

Nordstrom deliveries. Pltf. dep. 24:22-25:25. On D e c e m b e r 2 0 , 2 0 0 7 , A r n o t h i n j u r e d h e r h i p a n d w r i s t w h e n she tripped and f e l l over a box at work. Pltf. dep. 36:16-37:16; 38:2. She sought medical treatment the following day and was taken off work for right wrist s t r a i n and contusion of the right hip, see Mantilla Declaration, Exhibit 1, because Arnoth's commute was long enough t o cause her l e g t o go numb. P l t f ' s dep. 39:3-6, 16-24;

43:7-13. Arnoth was o f f work on medical leave from December 21, 2007 to February 14, 2008. Declaration of Lucia Mantilla
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4,

Exhibit 2. Mantilla states that based on her experience as a claims

specialist, she thought Arnoth's claim involved a relatively light incident that should not have resulted in such an extended period of time off work. Id. She s t a t e s further t h a t orthopedic guidelines for treatment of injuries such as Arnoth's contemplate that the p a t i e n t w i l l be medically s t a t i o n a r y within 30 days of the i n j u r y . Id. See also Exhibit 3, p. 7 (opinion of neurosurgeon Paul Williams that
~[t]reatment

or four weeks a f t e r the injury i s appropriate,

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reasonable, and necessary for a right wrist strain and a contusion of the right hip and leg"). Mantilla investigated Arnoth's claim, including arranging for an independent medical examination (IME), a procedure Mantilla ordered i n the maj o r i t y of the claims she h a n d l e d f o r DHL. I d . T h e p h y s i c i a n who p e r f o r m e d t h e IME, Paul Williams, M. D. ,

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concluded t h a t Arnoth was medically s t a t i o n a r y and immediately capable of performing her job without restriction as of the date of her examination, January 29, 2008. Id. a t i 6. Mantilla states that s h e s e n t D r . W i l l i a m s ' s r e p o r t t o A r n o t h ' s a t t e n d i n g p h y s i c i a n , who concurred with Dr. Williams, but did not send in the concurrence u n t i l March 7, 2008. Id. a t Exhibit 3. After receiving the attending physician's concurrence,

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Mantilla proceeded to close Arnoth's worker's compensation claim. rd. at i 7 . On M a r c h 1 1 , 2 0 0 8 , M a n t i l l a m a i l e d A r n o t h a n o t i c e o f

claim closure via c e r t i f i e d mail, which confirmed t h a t Arnoth was released to work with no r e s t r i c t i o n s . r d . ; Exhibit 4. M e a n w h i l e , i n J a n u a r y 2 0 0 8 , D a v i d G r u d i n i n HR r e c e i v e d w o r d f r o m t h e c o r p o r a t e o f f i c e t h a t DHL w a s b e g i n n i n g t h e p r o c e s s o f making significant labor reductions, with the first round of

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layoffs t o occur on February 12 and 13, 2008. Grudin Declaration i 6 . T h e d e c i s i o n a b o u t how m a n y e m p l o y e e s w o u l d b e l a i d o f f f r o m each s t a t i o n , and what type of employee, was made on a corporate level outside Portland, not a t the s t a t i o n l e v e l . rd. The corporate directive required the Portland station to eliminate one Field Services Supervisor. Id. Grudin states that as part of the process,

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OPINION AND ORDER P a g e 7

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he was provided with c h a r a c t e r i s t i c s to be assessed i n determining which employees would be selected for the f i r s t round of layoffs. Id. Grudin worked with regional managers and District Field

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Services managers, including Quimby from the Portland s t a t i o n , t o obtain information about the employees, which included categories of past performance, competencies. Id. at current performance,
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critical skills, that were

and

7.

Critical

skills

assessed and

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included an employee's leadership a b i l i t i e s , ability to achieve Id. service goals and

job knowledge,

~aintain

productivity among

standards.

Competencies that were assessed included,

other things, an employee's s k i l l s and a b i l i t i e s in the areas of communication, organization, and management. Id. a consideration. Id. The Seniority was not

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scoring c r i t e r i a were primarily

subjective, with employees being rated on a scale of zero to three. Oldham Declaration, Exhibit 9. Quimby r a t e d h i s subordinates and gave h i s r a t i n g s t o Grudin. Quimby Declaration the Field
<:II

12. Quimby gave Arnoth the lowest r a t i n g among Supervisors. Id. 3 Grudin entered data from

Services

Quimby onto a spreadsheet, which generated an o v e r a l l r a t i n g for each employee. Grudin Declaration points, Arnoth was
<:II

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8. Out of a p o s s i b l e 21 t o t a l All of the male Field

given eight points.

Services Supervisors were ranked higher, with four receiving 11 out

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3 Arnoth's 2006 Performance Evaluation, completed by Porter and signed by Arnoth in March 2007, gives her an overall performance r a t i n g of " f u l l y meets," but with scores i n some areas of "partially meets." Jordan Declaration, Exhibit 3, p. 2.

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OPINION AND ORDER P a g e 8

1 2 3 4 5 6 7 8 9 10
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o f 21 p o i n t s , a n d a n o t h e r r e c e i v i n g 1 3 p o i n t s . I d . The f i r s t round o f l a y o f f s was February 12-13, 2008. According to Grudin's Declaration, during t h i s f i r s t round, approximately 25 s u p e r v i s o r s a n d m a n a g e r s i n DHL's w e s t e r n a r e a w e r e l a i d o f f , i n c l u d i n g 1 9 m a l e s u p e r v i s o r s a n d m a n a g e r s , s i x o f whom w e r e m a l e Field Services Supervisors. Id. at
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1 0 . On F e b r u a r y , 1 3 , 2 0 0 8 ,

Quimby a n d G r u d i n c a l l e d A r n o t h t o i n f o r m h e r t h a t h e r p o s i t i o n was b e i n g e l i m i n a t e d . I t i s n o t d i s p u t e d t h a t Arnoth was t h e o n l y F i e l d Services Supervisor at the Portland station laid off in this round. Arnoth received three weeks of severance pay, based on her length of service (two years) w i t h DHL. Id. According t o Quimby, in

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subsequent rounds of layoffs, three more Field Services Supervisors l o s t t h e i r jobs a t the Portland s t a t i o n : Ryan Cook, l a i d o f f i n October 2008, Corey Hester, laid off in February 2009, and Trent L a r s e n , l a i d o f f i n M a r c h 2 0 0 9 . Q u i m b y s t a t e s t h a t w h e n h e l e f t DHL in March 2009, only two Field Services Supervisors remained a t the Portland station. Quimby D e c l a r a t i o n
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13. The number of employees

a t t h e P o r t l a n d s t a t i o n e v e n t u a l l y d e c l i n e d from 114 on January 1, 2 0 0 6 , t o 33 a s o f N o v e m b e r 2 0 0 9 . A g u i l a r D e c l a r a t i o n
Discussion
l.
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4.

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Sex discrimination disparate treatment claim a. Prima facie case case of disparate treatment under Oregon's is the same as that for Title VII.

A prima facie discrimination

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statutes

H e n d e r s o n v . J a n t z e n , 79 O r . A p p . 6 5 4 , 6 5 7 ( 1 9 8 6 ) . T h e p r i m a f a c i e elements of the disparate treatment case are, first, that plaintiff

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OPINION AND ORDER P a g e 9

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i s a member of a protected c l a s s ; second, t h a t she was meeting the employer's legitimate expectations; third, that she experienced an adverse employment action; her and fourth, protected that similarly situated were treated more

4 individuals

outside

class

5 favorably, or other circumstances surrounding the adverse action
6 7 8 9 10 11 12 13 14 give r i s e to an inference of discrimination. Godwin v. Hunt Wesson, I n c . , 1 5 0 F . 3 d 1 2 1 7 , 1 2 2 0 ( 9 t h e i r e 1 9 9 8 ) . DHL a s s e r t s t h a t A r n o t h has not shown t h a t she experienced an adverse employment action or t h a t similarly situated males were treated more favorably. In the context of a discrimination claim, adverse employment action is construed claim, more and narrowly is limited than to in the context that of a

retaliation

"actions

affect

e m p l o y m e n t o r a l t e r t h e c o n d i t i o n s o f t h e w o r k p l a c e . " B u r l i n g t o n N.

& S a n t a F e Rwy. C o . v . W h i t e , 1 2 6 S . C t . 2 4 0 5 , 2 4 1 1 ( 2 0 0 6 ) ; K a n g v .
U. L i m A m . , I n c . , 2 9 6 F . 3 d 8 1 0 , 8 1 8 - 1 9 (9 t h C i r . 2 0 0 2 ) . DHL a s s e r t s that none of the circumstances complained of by Arnoth constituted an adverse employment action. The areas i n which Arnoth a s s e r t s she was t r e a t e d d i f f e r e n t l y from t h e male F i e l d S e r v i c e s S u p e r v i s o r s a r e 1) supervisory meetings; 2) exclusion from

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a s s i g n m e n t t o d i s p a t c h d u t i e s ; 3) b e i n g

g i v e n n o a s s i s t a n c e w i t h t h e s a f e t y m a n a g e r a s p e c t s o f h e r j o b ; 4) continual assignment t o the Saturday s h i f t ; 5) being d i s c i p l i n e d for minor i s s u e s when other male supervisors were not d i s c i p l i n e d for more serious issues; 6) receiving a lower rating than male

c o m p a r a t o r s who w e r e l e s s e x p e r i e n c e d a n d o r h a d m o r e p e r f o r m a n c e d e f i c i e n c i e s ; and 7) being s e l e c t e d f o r termination based on t h a t

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1 2 3 4 5

lower rating. Arnoth a s s e r t s t h a t s h o r t l y a f t e r Quimby a r r i v e d , excluding her from supervisory meetings, he began

on the ground t h a t he

wanted her to dispatch. Arnoth Declaration ~ 3. Arnoth states that Quimby's exclusion of her from supervisory meetings was detrimental to her a b i l i t y t o perform her job because c r u c i a l information was exchanged, and the meetings provided an opportunity to speak with and l i s t e n to peers and upper level management. Arnoth Declaration
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2-3.

DHL c h a l l e n g e s t h i s t e s t i m o n y ,

pointing out that Arnoth

acknowledges supervisors'

meetings were held only about once a

month during the busy season, between November and January. Arnoth Declaration
~

2.

Thus,

for

two

of

the

three

months

Quimby

supervised Arnoth (November and December), meetings occurred only once a month. DHL a l s o p o i n t s t o t h e a b s e n c e o f e v i d e n c e t h a t

Arnoth's absence from the meetings had any effect on her pay, b e n e f i t s , or opportunities for advancement. Quimby Declaration With respect to the assignment of dispatch duties, contends that dispatch employee. could have been stated performed reason for by
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6.

Arnoth another

nonsupervisory

Quimby's

assigning

dispatch to Arnoth was t h a t the regular dispatcher was expected to be out on scheduled maternity leave, but Arnoth s t a t e s that the dispatcher had s t i l l not taken her leave when Arnoth was injured i n December 2007. Arnoth also a s s e r t s t h a t on Mondays, her day o f f , Quimby did not assign any of the male supervisors t o dispatch. Arnoth has s t a t e d t h a t dispatch was a hardship for her, because i t conflicted with other job duties requiring her to be out in the

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f i e l d , and "made for 12 hour days." DHL c o u n t e r s t h a t A r n o t h h a s p r o d u c e d n o e v i d e n c e t h a t t h e dispatch assignment affected pay, the terms and or conditions of her for

2 3 4 5 6 7

employment

including

benefits,

opportunities

advancement, nor any evidence t h a t Arnoth's pay was docked or t h a t s h e w a s d i s c i p l i n e d f o r n o t b e i n g i n t h e f i e l d . DHL a l s o p o i n t s t o evidence from Quimby t h a t worked 12 hour days, Field Services Supervisors typically

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so Arnoth's statement that dispatch duties

"made f o r 12 hour days" does not d i s t i n g u i s h her from her male comparators. Quimby Declaration
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6. Arnoth herself t e s t i f i e d that

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other supervisors worked s i m i l a r l y long days (11 hours). P l t f . dep. 9:8-24. I find no evidence in the record t h a t Arnoth worked more hours than any male Field Services Supervisor. Arnoth a s s e r t s t h a t Quimby denied her request for a s s i s t a n c e with the safety manager aspects of her job. 5. Arnoth does not Arnoth Declaration
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specify what her specific request was.

DHL

points to evidence that supervisors often asked for assistance with one aspect Exhibit 2 or another of their (Quimby dep.) jobs. Jordan Reply Declaration

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73:10-13. Quimby also t e s t i f i e d t h a t he

s u p p l i e d A r n o t h w i t h c o n t a c t i n f o r m a t i o n f o r e x p e r t s w i t h i n DHL w h o could assist her, Quimby dep. 72:19-73:3, and that Arnoth

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participated in a weekly 90-minute conference c a l l f a c i l i t a t e d by regional safety manager Kelly Tatum, in which safety supervisors from each s t a t i o n i n Ms. Tatum's region would c a l l i n t o d i s c u s s pending worker's compensation claims. Jordan Reply Declaration,

E x h i b i t 3 ( T a t u m d e p . ) 4 1 : 1 - 1 7 ; 4 2 : 6 - 1 9 . DHL p o i n t s t o t h e a b s e n c e

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28 OPINION AND ORDER P a g e 1 2

1

of any evidence that a failure to provide Arnoth assistance with her safety duties adversely affected Arnoth's pay , opportunities for advancement. Arnoth contends that she was treated unfairly when she benefits or

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requested r e l i e f from the Saturday s h i f t .

Arnoth states in her

6 d e c l a r a t i o n t h a t w h e n P o r t e r h a d b e e n DFSM, s h e h a d r o t a t e d t h i s
7 8 9
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s h i f t . Arnoth Declaration 1 6. Arnoth s t a t e s t h a t she told Rooney she would rather not work the Saturday s h i f t so that she could attend her Saturdays. son's Id. sporting events, which typically occurred on

In support of her assertion that Saturday shifts

constituted treatment unfair to her, she points to evidence that a f t e r her termination, the Saturday s h i f t was not reassigned t o one of the five remaining male supervisors, Oldham Declaration, Exhibits 23 and 24. DHL c h a l l e n g e s A r n o t h ' s a s s e r t i o n t h a t w o r k i n g t h e S a t u r d a y s h i f t was an adverse employment action t h a t required Arnoth to assume additional responsibilities not borne by the other but became rotational.

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17 18

supervisors and affected her opportunity for promotion because her manager was not at work on Saturdays. DHL asserts that it

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21

necessarily follows from Arnoth's assertions that assigning anyone to the Saturday shift would constitute an adverse employment

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24

a c t i o n . DHL a l s o a r g u e s t h a t A r n o t h h a s o v e r l o o k e d h e r o t h e r f o u r workdays, which were weekdays, a difference of only one day in

comparison t o her male comparators. But DHL's arguments f a i l t o address Arnoth's a s s e r t i o n t h a t the Saturday supervisor s h i f t was not r o t a t e d among t h e other supervisors when she had i t .

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OPINION AND ORDER P a g e 1 3

1
2 3

Arnoth a s s e r t s t h a t during her employment she was subjected to yelling and profane language from Quimby, and s t a t e s t h a t while she does not a s s e r t a claim of h o s t i l e work environment, Quimby y e l l e d

4 a t Arnoth and o t h e r women, including P o r t e r , but did not t r e a t male
5 6 7 8 9 10 11
12 13

employees the same way.

Pltf.

dep.

23:15-24:25.

DHL d o e s n o t

dispute this assertion, but counters that yelling does not rise to the level of an adverse employment action. Nunez v. City of Los A n g e l e s , 147 F . 3 d 8 6 7 , 875 (9 th C i r . 1 9 9 8 ) ( t h r e a t s a n d h a r s h w o r d s insufficient to constitute adverse employment action). Arnoth a s s e r t s t h a t she was d i s c i p l i n e d by Quimby for conduct that would not have been d i s c i p l i n e d when engaged i n by male

employees.

Arnoth r e f e r s to the oral warning she was given about

the Nordstrom packages in October and December 2007, and asserts t h a t the f i r s t of these e r r o r s was caused by a d r i v e r ' s e r r o r . Quimby Declaration, Exhibit 1. Arnoth acknowledges t h a t the missed Nordstrom shipment in December was her r e s p o n s i b i l i t y , t e s t i f i e d that there were the Portland s t a t i o n was
~issuesn

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15

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19

but has

with Nordstrom shipments that on,
n

~working

and

that

e-mails

from

e x e c u t i v e s t h r o u g h o u t t h e c o m p a n y i n d i c a t e d t h a t DHL a n d N o r d s t r o m were working together on these
~ issues. n

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PI t f .

dep.

92: 12-93: 2;

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24

1 5 8 : 3 - 1 8 . DHL a s s e r t s t h a t t h e o r a l w a r n i n g i s t h e l o w e s t l e v e l o f c o r r e c t i v e action, see Quimby dep. 71:2-10, and did not c o n s t i t u t e an adverse employment action. When the evidence pertaining to Arnoth's assignment to

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dispatch duties and the Saturday s h i f t on a non-rotational basis, Quimby's yelling at her, her exclusion from meetings apparently in

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OPINION AND ORDER P a g e 1 4

1

p a r t because of being required to do dispatch, and receiving the lowest rating on the RIF matrix, i s considered along with the fact that the Field Services Supervisor selected for layoff at the

2 3 4 5

Portland s t a t i o n was i t s only female Field Services Supervisor, while three males with less experience remained, i t is sufficient satisfy Arnoth's from burden of showing situated that male she was treated Services

6 to
7 8 9 10
11 12

differently

similarly

Field

Supervisors. Her termination was unquestionably an adverse employment action. I conclude t h a t Arnoth has made out a prima

facie case of sex discrimination. b. DHL Nondiscriminatory explanation can rebut Arnoth's prima facie case by producing a

13 14 15
16 17 18

legitimate, nondiscriminatory explanation for Arnoth' s termination. S t . M a r y ' s H o n o r C e n t e r v . H i c k s , 5 0 9 u . S . 5 0 2 , 5 0 6 - 0 7 ( 1 9 9 3 ) . DHL must produce evidence, not merely express an argument. Rodriguez v. GMC, 9 0 4 F . 2 d 5 3 1 , 5 3 3 ( 9 t h C i r . 1 9 9 0 ) . DHL c o n t e n d s t h a t A r n o t h w a s terminated for a non-discriminatory reason, i . e . , the company-wide RIF of which Arnoth was a p a r t . RIF. c. Pretext I t has produced evidence of the

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21

DHL h a s p r o d u c e d a l e g i t i m a t e , n o n d i s c r i m i n a t o r y e x p l a n a t i o n for Arnoth's termination: the burden shifts back to her to produce evidence that the DHL's proffered nondiscriminatory reason is

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27

p r e t e x t u a l . On s u m m a r y j u d g m e n t , A r n o t h ' s b u r d e n i s o n l y t o p r o d u c e enough evidence to allow a reasonable fact finder to conclude that her termination was motivated by discrimination. Peterson v.

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OPINION AND ORDER P a g e 1 5

1

H e w l e t t P a c k a r d C o . , 358 F . 3 d 5 9 9 , 603 (9 th C i r . 2 0 0 4 ) ; W a r r e n v . City of Carlsbad, accomplished 58 F.3d 439, directly more 443 by (9 th C i r . persuading motivated 1995). This may be the the court that a or

2 3 4 5
6

"either reason

discriminatory

likely

employer

indirectly by showing that the employer's proffered explanation i s unworthy of credence." Texas Dep't of Community Affairs v. Burdine, 450

7 8 9
10

u.s.

248, 256 (1981).

The mere f a c t t h a t she was terminated as p a r t of a RIF does not foreclose Arnoth's claims. Circumstantial evidence can show

t h a t a supervisor's RIF scores were pretextual, p a r t i c u l a r l y for evaluations in "soft-skill" categories such as "communication/

11
12
13

l e a d e r s h i p . " EEOC v . B o e i n g C o m p a n y , 5 7 7 F . 3 d 1 0 4 4 , 1 0 5 2 ( 9 t h C i r . 2 0 0 9 ) . A r n o t h ' s own t e s t i m o n y a b o u t w h y h e r l o w s c o r e s w e r e w r o n g , mistaken, or unworthy of credence is also evidence. Id. As discussed, Arnoth has produced evidence that she was

14
15 16 17

treated differently from the male supervisors in several respects, p a r t i c u l a r l y by Quimby. Quimby's r a t i n g s of Arnoth, assessed a f t e r less than three months as her superior, were almost entirely based on " s o f t - s k i l l " categories, including the possession of unspecified "unique skills;" "leadership," including "[m]aintain[ing] the

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19

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21

"self-confidence and self-esteem of others;" orientation;" adaptability;" "teamwork and and collaboration;"

"customer service "initiative and

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27

"communication,"

including

"nonverbal

communication." These q u a l i t i e s were rated on a scale defined by other s o f t c r i t e r i a , such as " l e s s than f u l l y competent i n some or most s k i l l s and a b i l i t i e s , " (zero) and "currently less than fully

28

OPINION AND ORDER P a g e 1 6

1

competent i n some s k i l l s and a b i l i t i e s

[but] . . . i s able to meet

2 3

most aspects of the job requirements and with additional training and/or experience can meet the expectations of the job" (one). See

4 Oldham Declaration Exhibit 9.
5 6 7 8 9
10

Arnoth has produced sufficient evidence to allow a reasonable fact finder to conclude t h a t her termination was motivated by sex discrimination. DHL's motion for summary judgment on t h i s claim i s denied. 2. Injured worker discrimination claim

A prima facie case of unlawful termination based on injured or status requires the following: 2) 1) that plaintiff invoked the

11
12 13

workers compensation system;

that she experienced an adverse

employment a c t i o n ; and 3) a causal l i n k e x i s t s between the two. See Williams v. Freightliner, LLC, 196 Or. App 8 3 , 90 (2004). The

14
15
16 17

McDonnell Douglas framework applies to such claims. Scott v. Sears, R o e b u c k & C o . , 3 9 5 F . S u p p . 2 d 9 6 1 , 9 8 1 (D. O r . 2 0 0 5 ) . To satisfy the causal element, Arnoth must show
~factor

that that

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invocation of the workers compensation system was a

made a d i f f e r e n c e " i n DHL's decision to terminate her employment. Dickison v. Wal-Mart Stores. Inc., 2, 2007). 2 0 0 7 WL 1 9 5 9 2 8 7 * 3 (D. O r . J u l y filing of a worker's

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21

Temporal proximity between the

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compensation claim and a without more,

subsequent adverse employment action,

does not establish the required causal connection

between the two events. Hardie v. Legacy Health System, 167 Or. App. 425, 433 (2000); Kotelnikov v. Portland H a b i l i t a t i o n Center, 5 4 5 F . SUppa 2 d 1 1 3 7 (D. O r . 2 0 0 8 ) .

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OPINION AND ORDER P a g e 1 7

1
2 3 4 5 6 7 8 9
10

Arnoth asserts that Mantilla's investigation into her worker's compensation claim is animus. DHL counters numerous sufficient with claims to demonstrate discriminatory testimony manner as that she

Mantilla's in the same

investigated

Arnoth's,

o r d e r i n g a n IME i n 90% o f t h e c l a i m s s h e h a n d l e d f o r DHL. J o r d a n Reply Declaration, exhibit 4 (Mantilla dep.) 132: 23-25; 133:7-9, 13-15. DHL a l s o p o i n t s o u t t h a t A r n o t h ' s w o r k e r ' s c o m p e n s a t i o n accepted, and closed only after Arnoth's physician

claim was

c o n c u r r e d i n t h e o p i n i o n o f t h e IME d o c t o r . Arnoth also r e l i e s on the timing between her injury and her termination date to create an inference of discrimination. Coszalter v. (timing alone City of Salem, does not 320 F.3d 968, inference 978 of (9 th C i r . See

11
12 13 14

2003)

support

discrimination;

additional evidence of surrounding circumstances must support such a n i n f e r e n c e ) . DHL a r g u e s t h a t A r n o t h h a s n o t p r o d u c e d a d d i t i o n a l evidence of supporting circumstances that support an inference of discrimination, Quimby, nor and that i t has produced evidence that neither chose the layoff date, and that many DHL

15
16 17

18
19

Grudin

employees, including males, were l a i d off the same day as Arnoth. I conclude that Arnoth has no evidence for to support worker's which is

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21

compensation

discrimination

except

timing,

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27

i n s u f f i c i e n t . DHL i s e n t i t l e d t o s u m m a r y j u d g m e n t o n t h i s c l a i m . 3. Failure to Reinstate or Reemploy reinstatement rights do not a r i s e i f the

Under Oregon law,

employer e s t a b l i s h e s t h a t the worker was discharged from her preinjury position for reasons unrelated to the injury or her worker's

28

OPINION AND ORDER P a g e 1 8

1
2 3 4 5 6 7

compensation claim. Lane County v.

State, 104 Or. App.

372,

377

( 1 9 9 0 ) ; s e e a l s o OAR 8 3 9 - 0 0 6 - 0 1 3 1 ( 1 ) ( g ) , OAR 8 3 9 - 0 0 6 - 0 1 3 6 ( 7 ) . DHL a r g u e s t h a t A r n o t h ' s s t a t u s a s a n i n j u r e d w o r k e r d i d n o t preclude DHL from considering her for the 2008 layoffs. The

regulations implementing Or. Rev. injured worker has
~has

Stat. §659A.043 s t a t e that an

no greater right to a position or other OAR

employment benefit than i f the worker had not been injured." 839-006-0130 (10); 839-006-0135 (12).

8
9
10

Arnoth has not responded to

this argument in her papers. A d d i t i o n a l l y , DHL a r g u e s t h a t A r n o t h f a i l e d t o p r e s e r v e h e r r i g h t to reinstatement by making a timely demand on the employer, a s r e q u i r e d u n d e r OAR 8 3 9 - 0 0 6 - 0 1 3 0 ( d ) a n d 8 3 9 - 0 0 6 - 0 1 3 5 ( b ) . A r n o t h c o u n t e r s t h a t a n y s u c h d e m a n d w o u l d h a v e b e e n f u t i l e u n d e r OAR 8 3 9 0 0 6 - 0 1 3 0 ( 7 ) a n d OAR 8 3 9 - 0 0 6 - 0 1 3 5 ( 1 0 ) , w h i c h e x e m p t a t i m e l y d e m a n d i f "the employer has made i t known" t h a t reinstatement or r e e m p l o y m e n t w i l l n o t b e c o n s i d e r e d . H o w e v e r , DHL p o i n t s t o t e s t i m o n y from Arnoth t h a t during her conversation with Quimby and Grudin on February 13, Pltf. dep. 2008, 66: 9-16. she was t o l d she was "more than r e h i r a b l e . " In addition, DHL points out, the written she was

11
12 13 14

15
16
17
18 19

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21

severance package Arnoth received clearly stated that eligible for rehire. Grudin Declaration, Exhibit 2. I

find i t

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u n n e c e s s a r y t o r e a c h t h i s a r g u m e n t b e c a u s e I c o n c l u d e t h a t DHL h a s met i t s burden of showing t h a t Arnoth was terminated for reasons unrelated to her injury or her worker's compensation claim. The survival worker's of Arnoth's compensation sex discrimination claim cannot discrimination and failure to save the

reinstate

27
28 OPINION AND ORDER P a g e 1 9

1

claims. DHL's motion for summary judgment on t h i s claim i s granted.
Conclusion

2
3 4 5

D H L ' s m o t i o n f o r s u m m a r y j u d g m e n t ( d o c . # 3 6 ) i s GRANTED w i t h respect to Arnoth's claims for injured worker discrimination and f a i l u r e to r e i n s t a t e , in violation of Or. Rev. Stat.
§§

659A.040,

6
7 8 9
10
11

6 5 9 A . 0 4 3 , a n d 6 5 9 A . 0 4 6 ; D H L ' s m o t i o n f o r s u m m a r y j u d g m e n t i s DENIED with respect to Arnoth's claim for disparate treatment sex

discrimination under Or. Rev. S t a t . 659A.030 (a) and (b). I T I S SO ORDERED.

Dated this

~ 6IW

day of

=--

, 2010.

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15 16 17 18 19

Dennis ames Hubel United States Magistrate Judge

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OPINION AND ORDER P a g e 2 0