Equal Employment Opportunity Commission v. Cascade Food Incorporated
Filing
77
OPINION and ORDER - For the reasons stated, Cascade Food's motion 65 for summary judgment is DENIED as to the gender discrimination claim and GRANTED as to the retaliation claim. Dated this 12th day of May, 2011, by U.S. Magistrate Judge John V. Acosta. (peg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
Civ. No. 09-IIS7-AC
GRACIELA SERENO-MORALES,
OPINION AND
ORDER
Plaintiff,
v.
CASCADE FOOD INCORPORATED,
Defendant.
ACOSTA, Magistrate Judge:
Introduction
Plaintiff Graciela Sereno-Morales ("Sereno-Morales") alleges claims of gender-based
discrimination and retaliation against Defendant Cascade Food Incorporated ("Cascade Food").
These claims arise, specifically, under Oregon Revised Statutes 6S9A.030(1 )(a)-(b) and (t). Cascade
OPINION AND ORDER
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Food moves for summmy judgment on both claims. For the reasons stated, this motion is denied as
to the discrimination claim and granted as to the retaliation claim.
As a preliminmy matter, the court notes that the deposition excerpts submitted by both parties
are not properly authenticated as they lack a court reporter's certification. "A deposition or an
extract therefrom is authenticated in a motion for summaty judgment when it identifies the names
of the deponent and the action and includes the reporter's certification that the deposition is a true
record of the testimony of the deponent." Orr v. BankofAmerica, 285 F.3d 764, 774 (9th Cir. 2002)
(citing FED. R. Ev. 90l(b) and FED. R. CIV. P. 56(e), 30(f)(1)). An attorney's declaration alone is
insufficient to authenticate a deposition extract. Id.
This court has addressed this issue at length in prior opinions and adheres to Orr's
authentication guidelines. See Chao v. Westside DIJlwall, Inc., 709 F. Supp. 2d 1037, 1051 (D. Or.
2010) (citing Orr for the proposition that "[dleposition excerpts submitted without the COUlt
reporter's signed celtification are properly excluded at the summary judgment stage" and striking
several of both pmties' deposition excerpts); see Automobile Ins. Co. ofHartford, Connecticut v.
Abel, 2010 WL 2643412, at *3-4 (D. Or. June 30, 2010) (striking both patties' deposition excerpts
as they lacked "the court repolter's certification that the deposition is a true record of the testimony
of the deponent."); see Kesey, LLC v. Francis, 2009 WL 909530, at *1-3 (D. Or. Apr. 3, 2009)
(surveying the application of Orr by judges in this district and concluding that they substantially
"applied and enforced the authentication requirements set forth therein.").
The court may only rely on admissible evidence in ruling on a motion for summmy judgment
and, accordingly, all deposition excerpts are stricken from the record. The COUlt thus bases its ruling
on those other exhibits that meet the authentication requirements, and the factual allegations found
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in the Complaint and Cascade Food's Concise Statement of Material Facts, to the extent that the
parties have manifested agreement to said allegations.
Factual Background
Sereno-Morales and her former boyfriend, Ismael Solis ("Solis"), were both employed by
Cascade Food throughout 2006 and 2007. In January 2008, Sereno-Morales and Solis had a violent
altel'cation off work premises. As a result of this altercation, Sereno-Morales obtained a restraining
order against Solis. The restraining order prohibited Solis from entering Cascade Food, the location
of their mutual employment. The restraining order stated that Sereno-Morales had been both
physically and sexually abused by Solis.
Sereno-Morales returned to work the same day and gave a copy of the restraining order to
Wayne Sparks ("Sparks"), a supervisor at Cascade Food. Sparks did not read the restraining order
at the time, but indicated that he would see Sereno-Morales the following day. The next day, Sparks
called Sereno-Morales into his office for a meeting. Ruben Solis, another employee, was also
present and acted as a translator for Sereno-Morales, who speaks only limited English. SerenoMorales was told that, due to the restraining order, she and Solis could not work at Cascade Food
simultaneously and Sereno-Morales understood that if she did not withdraw the restraining order,
she would lose her job with Cascade Food.
Sereno-Morales later returned to Cascade Food with a friend to clarifY what was said in the
earlier meeting. She was concerned that Ruben Solis's translation was not accurate. I Sparks
informed the friend that Sereno-Morales's understanding of their prior conversation was correct and
It is not clear from the record whether Ruben Solis is a relative of Ismael Solis, but the
implication is that Ruben Solis was been biased in favor ofIsmael Solis.
I
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that in light of the restraining order she could not continue to work at Cascade Food.
Legal Standard
Summmy 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 matteroflaw." FED. R. CIY. P. 56(a)
(2011). Summmy judgment is not proper if material factual issues exist for trial. Warren v. City of
Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
The moving party has the burden of establishing the absence of a genuine issue of material
fact. Celotex C0I1J. v. Catrett, 477 U.S. 317, 323 (1986). Ifthe moving party shows the absence of
a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts
which show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary
judgment by relying on the allegations in the complaint, or with unsuppOlted conjecture or
conclusOlY statements. Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).
Thus, summaty judgment should be entered against "a party who fails to make a showing sufficient
to establish the existence of an element essential to that party's case, and on which that patty will
bear the burden of proof at trial." Celotex, 477 U.S. at 322.
The court must view the evidence in the light most favorable to the nonmoving party. Bell
v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to
the existence of a genuine issue of fact should be resolved against the moving party. Hector v.
Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Where different ultimate inferences may be drawn,
summary judgment is inappropriate. Sankovich v. Life Ins. Co. ofNorthAm erica, 638 F.2d 136, 140
(9th Cir. 1981).
However, deference to the nonmoving party has limits. The nonmoving party must set forth
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"specific facts showing a genuine issue for trial." FED. R. CIV. P. 56(e) (2008) (emphasis added).
The "mere existence of a scintilla of evidence in support of the plaintiff s position [is] insufficient."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where "the record taken as
a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial." Matsllshita Elec. Indus. Co., LId. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal quotation marks omitted).
Discussion
Both of Sereno-Morales's claims arise under Oregon law and the court in its discretion
previously elected to exercise supplemental jurisdiction over those claims. The Ninth Circuit has
held that employment discrimination claims brought under Oregon Revised Statutes ("ORS")
659A.030 are subject to the same analysis as those brought under federal laws and, thus, the burden
shifting analysis set forth in McDonnell Douglas C0I1). v. Green, 411 U.S. 792 (1994), applies to
these claims. See Dawson v. Enteklnternational, 630 F.3d 928, 935 (9th Cir. 2011) (holding that
McDonnell Douglas applies even where the district court's jurisdiction is supplemental). SerenoMorales's discrimination and retaliation claims are addressed in turn.
1.
Gender Discrimination
Oregon law prohibits discrimination in employment on the basis of sex or gender. ORS
659A.030 states that an employer may not "refuse to hire or employ the individual or to bar or
discharge the individual from employmentL]" on the basis of an individual's sex. OR. REv . STAT.
659A.030(a) (2009). It also provides that an employer may not "discriminate against the individual
in compensation or in terms, conditions or privileges of employment." OR. REV. STAT. 659A.030(b)
(2009).
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"To establish a prima facie case, a plaintiff must offer evidence that 'givers] rise to an
inference of unlawful discrimination.'" Williams v. Federal Express C0I1)., 211 F. Supp. 2d 1257,
1261-62 (9th Cir. 2002) (quoting Texas Dept. a/Community Affilirs v. Burdine, 450 U.S. 248, 253
(1981 )). Notably, "[e]stablishing a prima facie case in response to a motion for summary judgment
requires only 'minimal' proof and' does not even need to rise to the level of a preponderance of the
evidence.'" Aldridge v. Yamhill County, CV. 05-1257-PK, 2006 WL 1788178, at *6 (D. Or. June
23,2006) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)). This may be
accomplished via direct evidence or pursuant to the burden-shifting analysis set forth in McDonnell
Douglas. Williams, 211 F. Supp. 2d, at 1262.
Under McDonnell Douglas, the plaintiff must first "show that (1) he belongs to a protected
class; (2) he was qualified for the position; (3) he was subject to an adverse employment action; and
(4) similarly situated individuals outside his protected class were treated more favorably." Chuang
v. Univ. a/Cal. Davis Board a/Trustees, 225 F.3d 1115,1123 (9th Cir. 2000) (citations omitted).
Once the plaintiff meets the prima facie burden, the burden shifts to the defendantto "articulate some
legitimate, nondiscriminatory reason for the challenged action." ld. at 1123-1124. Then, if this is
achieved, the burden reverts to the plaintiff who must then "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." ld.
A.
Prima Facie
Cascade Food argues that Sereno-Morales cannot meet her prima facie burden because she
and Solis were not similarly situated. Cascade Food asserts that Solis was a more skilled and
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valuable employee to Cascade Food and, in light ofthis, Sereno-Morales cannot show that Cascade
Food's decision to retain Solis was based on gender.
Sereno-Morales responds that she and Solis were in fact similarly situated. She argues that
all Cascade Food employees were capable of performing all tasks on the production floor, that she
and Solis had both worked for Cascade Food for a period of years, and that Cascade Food's attempt
to characterize her as a seasonal employee is not supported by the record evidence. According to
Sereno-Morales, Cascade Food did not argue that Solis was more qualified in its statements to the
Equal Employment Opportunity Commission. Furthermore, she argues that she and Solis could have
maintained employment with Cascade Food with appropriate assignments and scheduling. SerenoMorales also rebuts Cascade Food's argument that she voluntarily left its employ. Rather, SerenoMorales argues that she began to look for other work only because she was terminated by Cascade
Food and needed to support her family.
It is not disputed that Sereno-Morales was a member of a protected class, was qualified for
her position, 01' suffered an adverse employment action. It is also not disputed that Sereno-Morales
was treated differently than Solis. Thus, Sereno-Morales's prima facie case hinges on whether she
and Solis were similarly situated. The record reveals that Sereno-Morales and Solis were both
employees at Cascade Food and, to that extent, were similarly situated. Based on the limited
evidentiary record before it and drawing inferences in Sereno-Morales's favor, the court concludes
that there is a genuine issue of material fact as to whether Sereno-Morales and Solis were similarly
situated in their capacity as employees of Cascade Food.
B.
Legitimate, NondiscriminatOlY Reason and Pretext
The burden having shifted to Cascade Food to establish a legitimate, nondiscriminatory
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reason for the challenged action, Cascade Food states that any preferential treatment of Solis was
based on skill, not gender, but does not provide additional evidence in support of this contention.
This is, in essence, a reasseliion that Sereno-Morales and Solis were not similarly situated and that
Sereno-Morales has failed to meet her prima facie burden. Again, there is no evidence that Solis was
retained because of a superior skill level or on any other non-discriminatOlY basis. Cascade Food
has failed to present a legitimate, nondiscriminatory reason for the challenged action.
Sereno-Morales further argues that Cascade Food's argument, that Solis was uniquely
qualified, was not raised at the administrative level and is thus of recent vintage. This argument is
not addressed by Cascade Foods, nor is it substantiated by the record evidence, and it does not weigh
in favor of either party in this analysis.
Again, based on the limited evidentiaty record, there are genuine issues of material fact as
to whether Sereno-Morales was subjected to discrimination based on gender' and Cascade Food's
motion for summaty judgment on this claim is denied.
II.
Retaliation
Oregon law also prohibits retaliation in employment against a person who has opposed or
2 The court notes that this case bears certain hallmarks of a Title VII claim arising from
"gender stereotyping." In Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cil'.
2001), the Ninth Circuit held that discrimination based on a plaintiffs failure to conform to
traditional gender stereotypes amounted to discrimination based on gender that was actionable under
Title VII. In Nichols, the plaintiff was discriminated against on the ground that he was insufficiently
masculine, and this discrimination took the form of sexual harassment. The cOUli wrote: "At its
essence, the systematic abuse directed at Sanchez reflected a beliefthat Sanchez did not act as a man
should act. ... We conclude that this verbal abuse was closely linked to gender." Jd at 874. Here,
the evidence suggests that Cascade Food's alleged discrimination against Sereno-Morales could have
been motivated by her failure to conform to gender stereotypes, both in that Cascade Food did not
take the allegations of rape seriously as Sereno-Morales and Solis were in a relationship, and in that
Sereno-Morales's employment was less impOliantthan Solis's employment, because she is a woman.
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complained of unlawful discrimination. It is unlawful "to discharge, expel or otherwise discriminate
against any other person because that other person has opposed any unlawful practice, or because
that other person has filed a complaint, testified or assisted in any proceeding under this chapter or
has attempted to do so." OR. REv. STAT. 659A.030(f) (2009).
To establish a prima facie case of retaliation under ORS 659A.030, "a plaintiff must
demonstrate that (I) he engaged in a statutorily protected activity; (2) he was subjected to an adverse
employment action; and (3) the plaintiffs statutorily protected activity was a substantial factor in
the employer's adverse employment decision." Ventura v. Johnson Controls, Inc., CV 08-1318-PK,
2010 WL 3767882, at *10 (D. Or. Sept. 16,2010) (citations omitted). As with the previous claim,
the burden shifts to the defendant to establish a legitimate and non-discriminatory reason for the
adverse action and, if met, shifts back to the plaintiff to show that the proffered reason is pretextual.
Id. As for causation, '" [t]o be a substantial factor, the employer's wrongful purpose must have been
a factor that made a difference' in the decision to take the adverse action." Bahri v. Home Depot
USA, Inc., 242 F. Supp. 2d 922, 953 (D. Or. 2002) (citing Estes v. Lewis and Clark College, 152 Or.
App. 372, 381, 954 P.2d 792, 796 (1992)).
Cascade Food argues that Sereno-Morales cannot meet her prima facie burden because
obtaining a restraining order is not protected activity. Sereno-Morales responds that the type of
activity that is protected from retaliation is construed broadly and includes any action reasonably
believed necessaty to protect oneself from unlawful discrimination. Here, Sereno-Morales argues
that in showing the restraining order to supervisors at Cascade Food, she engaged in protected
activity that should have triggered investigation of this claim, and that, at a minimum, Cascade Food
had a duty to investigate her allegations and take steps to protect her from fear of sexual harassment
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and assault whilst at work. As Sereno-Morales puts it, rather than take steps to protect her from a
fellow employee that had beaten and raped her, Cascade Food informed her that she needed to
withdraw her restraining order or lose her job.
The viability of this claim hinges on whether Sereno-Morales engaged in protected activity.
Sereno-Morales asserts two bases upon which the court could find protected activity: obtaining the
restraining order against Solis and reporting to her employer, by way of the restraining order, the
allegations of physical abuse visited upon her by another employee.
In the Ninth Circuit, "[a]n employee's statement does not constitute protected activity,
'unless it refers to some practice by the employer that is allegedly unlawful. '" Maxwell v. Kelly
Sel'vs., 730 F. Supp. 2d 1254, 1270 (D. Or. 2010) (quoting EEOC v. Crown Zellerbach Corp., 720
F.2d 1008, 1013 (9th Cir. 1983ยป. Here, Sereno-Morales did not complain ofa practice or conduct
of her employer which caused her employer to retaliate against her. Rather, she filed a restraining
order against her boyfriend, also a coworker. She did not allege unlawful conduct on Cascade
Food's part giving rise to this report, nor did she accuse Cascade Food of unlawful conduct at the
time she presented the restraining order at her workplace. Cascade Food's subsequent reaction to
her allegations against another employee, though unsavory, does not amount to retaliation for
protected activity under ORS 659A.030.
Sereno-Morales cites Fuller v. CityofOakland, California, 47 F.3d 1522 (9th Cir. 1995), in
support of this claim. In that case, the plaintiff alleged a hostile work environment and her
employer's failure to meet its remedial obligations upon learning ofthe ongoing harassment. The
court wrote that "[o]nce an employer knows or should know of harassment, a remedial obligation
kicks in." ld. at 1528 (citing Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir.
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1994)). However, this statement was directed at the adequacy of an employer's response to
allegations of workplace sexual harassment as a defense to a hostile work environment claim, and
not a retaliation claim, and is thus not apposite here.
Although filing a restraining order may give rise to a claim for retaliation, it does not do so
under the statute cited by Sereno-Morales.
A retaliation claim under that statute, ORS
659A.030(1 )(1), is premised on opposition to "any unlawful practice" or the act of "fil[ing] a
complaint, testif[ying] or assist[ing] in any proceeding under this chapter" or attempting to do so.
In other words, where an employee is acting to vindicate their right to be free from workplace
discrimination, the employee may not be subject to an adverse employment action as a result of such
efforts. Here, in obtaining a restraining order, Sereno-Morales sought to vindicate other rights, rights
not contemplated by ORS 659A.030. Such claims are provided for under ORS 659A.230, which
makes it unlawful to discriminate against an employee for initiating or aiding in a civil or criminal
proceeding. Sereno-Morales has not alleged such a claim, however. To the extent that Cascade
Foods is liable for conduct arising from its reaction to the restraining order, its liability is subsumed
by the gender discrimination claim discussed above.
Conclusion
For the reasons stated, Cascade Food's motion for summary judgment is DENIED as to the
gender discrimination claim and GRANTED as to the retaliation claim.
DATED this 12th day of May, 2011.
Unite
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