Schuett v. Eli Lilly & Company et al
Filing
51
OPINION & ORDER: Defendants' motion for summary judgment 32 is granted as to a FMLA/OFLA retaliation/discrimination claim, but is otherwise denied. See 35-page opinion & order attached. Ordered by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
ARLENE SCHUETT,
Plaintiff,
No. 3:10-CV-784-HZ
v.
ELI LILLY & COMPANY, a Foreign
Business Corporation, and CAMILLE
MYERS, an individual,
Defendant.
Kim E. Hoyt
Spencer C. Rockwell
GARRETT HEMANN ROBERTSON, P.C.
1011 Commercial Street, N.E.
P.O. Box 749
Salem, Oregon 97308-0749
Attorneys for Plaintiff
///
1 - OPINION & ORDER
OPINION & ORDER
Ellen E. Boshkoff
Johane J. Domersant
BAKER & DANIELS LLP
300 North Meridian Street, Suite 2700
Indianapolis, Indiana 46204
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Arlette Schuett brings this employment discrimination case against her former
employer, Eli Lilly & Company, and her former supervisor Camille Myers. Plaintiff brings
pregnancy discrimination claims under Title VII, 42 U.S.C. §§ 2000e - 2000e-17, and Oregon
Revised Statute § (O.R.S.) 659A.030, as well as claims under the Family Medical Leave Act, 29
U.S.C. §§ 2601-2654 (FMLA), and the Oregon Family Leave Act, O.R.S. 659A.150-659A.186
(OFLA).
Defendants move for summary judgment on all claims. I deny the motion in part and
grant the motion in part.
BACKGROUND
Plaintiff, who had previously worked for Lilly in 2000-01 before leaving to work for
another company, was rehired by Lilly in April 2006. She worked in the Midwest, but relocated
to Oregon in September 2007 after her previous division was reorganized and her position
eliminated. Pltf Affid. at ¶¶ 3-4; Pltf Depo. at pp. 31, 34-36, 38. In Oregon, she was a hospital
account specialist covering Southern Oregon. Pltf Affid. at ¶¶ 3-4; Pltf Depo. at 35-36, 38.
Plaintiff began reporting to Myers, who was based in Seattle, as of September 1, 2007. Myers
Affid. at ¶ 2.
Plaintiff worked in this position, and for Myers, until she was terminated in February
2 - OPINION & ORDER
2009. At the time of her termination, plaintiff was pregnant. Defendants assert that plaintiff was
terminated because she falsified calls to customers. Plaintiff asserts she was terminated because
she was pregnant, because she complained to defendants' human resources department about
allegedly discriminatory treatment of her by Myers, and because she was going to use family
leave. For the purposes of summary judgment, defendants concede that plaintiff told Myers of
her pregnancy in October 2008.
Plaintiff's performance of her duties was largely unsupervised. Myers Affid. at ¶ 5. She
usually worked in her territory by herself. Id. Periodically, Myers conducted "field visits" with
plaintiff, during which she observed plaintiff in the selling environment and provided feedback
and coaching on selling, performance, development, and compliance with Lilly policies and
procedures. Id. Afterwards, Myers compiled field visit memos (also called coaching notes),
memorializing her comments. Id.
According to Myers, plaintiff's duties included calling on four "customers" each day.
Myers Depo. at pp. 46, 99-100; Myers Affid. at ¶ 3. Myers identifies "customers" as hospital
physicians and certain other health care professionals. Myers Affid. at ¶ 3. Myers states that
after each sales call, plaintiff was expected to record certain details about the call in her "call
notes" in "Premier Force," a computer call entry system, including the name of the customer, the
date of the call, and the type of call. Id. Lilly used the call activity as one measure of whether
the employee was meeting expectations by seeing the right customers with the right frequency.
Id.
Plaintiff knew that she was to record vacation and sick days on "out-of-territory" reports.
Pltf Depo. at pp. 44-45. She did not recall being trained on the use of those reports, and thought
3 - OPINION & ORDER
that "later on," "somebody might have said something" about putting an explanatory note in the
out-of-territory report when she was out of her territory and not making calls. Id.
Although Myers did not cite plaintiff's work performance as a basis for her decision to
terminate plaintiff, both plaintiff and defendants rely on evidence of her past performance as
revealed in annual performance reviews and periodic field visit notes/coaching memos, in
support of their respective arguments regarding her termination. In her 2006 annual review,
completed by her prior supervisor, plaintiff was rated as "successful" in six "leadership behavior"
categories and "needs improvement" in one category. Ex. 4 to Pltf Depo. at p. 1.
Myers coached plaintiff on her performance in a December 3, 2007 field visit. Ex. 13 to
Pltf Depo.; Pltf Depo. at p. 206-07. Myers recorded plaintiff's strengths as "Planning and
Organizing - Implements Plan" and "Planning and Organizing - Stays Focused." Ex. 13 to Pltf
Depo. Areas noted for development were "Gather's [sic] information (needs more time in field)"
and "Develops the plan." Id. In the section for general comments, Myers wrote "[s]ounds like
you had a hectic 2 weeks of vacation. Hope you get everyone well and settled into your new
home. I'm really happy to have you back and ready to see your customers and make things
happen in Oregon!" Id. Plaintiff was rated "at average" in the "core competencies" of analysis
and decision making, and planning and organizing, both of which fall under the category of
"manage the account." Id.
Plaintiff's 2007 final performance review shows that it was completed by Myers. Ex. 5 to
Pltf Depo. Myers states, however, that the ratings primarily reflected input from plaintiff's
former manager in Milwaukee, Wisconsin. Myers Affid. at ¶ 9. Myers signed off on it and
agreed with it nonetheless. Id.
4 - OPINION & ORDER
In the 2007 annual review, it is noted that it had been a year of change because plaintiff
was on leave from February to June 2007, was "reallocated" in June to August 2007, and moved
from Milwaukee to Salem, Oregon in October 2007. Ex. 5 to Pltf Depo. Plaintiff had a good
year with "ReoPro," and throughout the changes, plaintiff had maintained a positive attitude and
strong learning "agility" which had helped her embrace "the transition to the new LHG
behaviors." Id. The review notes that plaintiff was very organized, completed things ahead of
schedule, and had jumped into her new leadership role as "Compliance Champ" "by keeping the
team informed of upcoming tests and deadlines." Id. However, Myers also noted that plaintiff
did not meet expectations in her "Portfolio" sales or her "Xigris sales." Id. As a result, Myers
"[saw] her performing at a low successful level" and indicated that plaintiff would not get a merit
increase. Id.1 Nonetheless, plaintiff was rated "successful" in six leadership behavior categories
and "needs improvement" in the category described as "implement with quality, speed, and value:
make decisions and execute work plans to achieve results." Id.
The record contains notes completed by Myers following remote coaching or on-site
coaching/field visits in February 2008, May 2008, July 2008, October 2008, and November 2008.
In all of these notes, Myers noted both plaintiff's strengths and areas for development. Ex. 14 to
Pltf Depo. (February 2008: noting strengths of adjusting interactions to customers, managing
customer expectations, and resolving issues, and noting areas for development of improving
1
This comment appears in the narrative portion of the "performance summary" section of
the review. Ex. 5 to Pltf Depo. Immediately below this section is a "check box" section entitled
"merit increase eligibility" where there is one box for "eligible - based on performance, employee
will be considered for a merit increase," and another box for "ineligible - based on performance,
employee is not eligible for a merit increase." Id. The box for "eligible" is checked,
contradicting the previous comment made in the narrative section.
5 - OPINION & ORDER
product knowledge and developing "the plan" consistently); Ex. 15 to Pltf Depo. (May 2008:
noting areas of strength as adjusting interactions to customers, articulating the patient type for
Lilly products, and interpreting information, and noting areas for development of developing the
plan consistently and understanding customer needs); Ex. 16 to Pltf Depo. (July 2008: indicating
strengths as adjusting information to customers and interpreting information and noting areas for
development as developing the plan consistently and understanding customer needs); Ex. 17 to
Pltf Depo. (October 2008: indicating plaintiff's strengths as adjusting interactions to customers
and product knowledge, and noting areas for development as developing the plan consistently
and understanding customers needs); Ex. 18 to Pltf Depo. (November 11, 2008: indicating same
strengths and weaknesses as in October 2008); Ex. 19 to Pltf Depo. (November 17, 2008:
indicating same strengths and weaknesses as November 11, 2008 and October 2008).
In February, May, and July 2008, plaintiff received marks of "at average" or better in
several "core competencies." Ex. 14 to Pltf Depo. (February 2008: plaintiff was "at average" in
three "manage the account" core competencies, was "at average" in the core competency of
"becoming a valued partner," and was "above average" in the core competency of "major account
selling/grow the business"); Ex. 15 to Pltf Depo. (May 2008: plaintiff was "at average" in five
core competencies, including in "major account selling"); Ex. 16 to Pltf Depo. (July 2008:
plaintiff was "at average" in five core competencies).
However, in October and November 2008, she received "below average" ratings in some
areas. Ex. 17 to Pltf Depo. (October 2008: indicating "at average" in three core competencies
but "below average" in analysis and decision-making and planning and organizing); Ex. 18 to Pltf
Depo. (November 11, 2008: "below average" in planning and organizing and "not observed" in
6 - OPINION & ORDER
four other core competencies); Ex. 19 (November 17, 2008: "below average" in analysis and
decision making and planning and organizing).
The notes also reflect some downward trend in plaintiff's sales figures over the course of
2008. E.g., Ex. 16 to Pltf Depo. (July 2008: showing plaintiff's "composite" sales rank went
from 6/142 for the quarter ending in December 2007, to 70/142 for the quarter ending in March
2008); Ex. 18 to Pltf Depo. (November 11, 2008: listing one action item of calling Myers to
discuss plans for "making quota"); Ex. 19 to Pltf Depo. (November 17, 2008: showing plaintiff's
composite sales rank went to 113/142 for quarter ending June 2008, but improving to 95/142 for
quarter ending September 2008).
Plaintiff alleges that during the May 2008 coaching field visit by Myers, plaintiff
overheard Myers's end of a conversation Myers had with other managers and the regional director
about sales calls. Pltf Depo. at pp. 59-60. According to plaintiff, Myers told plaintiff that calls
were becoming an issue and she (meaning Myers) was under pressure to get four calls in a day.
Id. Plaintiff states that Myers told her that Myers did not care "what you need to do, you need to
get your calls in." Id. The following day, Myers told plaintiff she was under pressure because
the region was behind in making calls and that "we had to get our four calls in a day. She didn't
care how we did it, we just had to get it in. She was in the red right now and she needed to get
out of it because she didn't want to be in trouble." Id. at p. 61.
Plaintiff ended the conversation because plaintiff received a phone call from a clinical
pharmacist. Id. After the call concluded, plaintiff alleges that Myers said "[y]ou're going to put
that call in, right, for today?" Id. at p. 62. Plaintiff alleges she responded "no," to which Myers
replied "yes, you are, I need four calls in a day." Id. Plaintiff alleges that later that day, Myers
7 - OPINION & ORDER
asked plaintiff to contact everyone in the region to tell them how to enter calls and to make sure
they all got their four calls in and that Myers did not care how. Id. Plaintiff states that she told
Myers she was not comfortable doing that, but Myers said "I am your manager, I need to be out
of the red zone, you're going to get four calls in a day." Id. Plaintiff allegedly responded "this is
how people get fired," to which Myers allegedly responded "I'm your manager, and I'm not
looking to fire anybody, I'm happy with the region, we need to get this done." Id. at pp. 62-63.
In deposition, plaintiff was asked if Myers told plaintiff to falsify calls, to which plaintiff
responded "[s]he told me to read between the lines." Id. at p. 63. In her affidavit, she states that
Myers was aware of, and instructed her on, the way in which to record sales calls. Pltf Affid. at ¶
8.
Plaintiff states that she told Myers of her pregnancy in October 2008 at a national
convention in Las Vegas, during which plaintiff was recognized as an exceptional performer.
Pltf Depo. at pp. 185-86; Pltf Affid. at ¶¶ 6, 9. This was before Myers's October 27-28, 2008
field visit with plaintiff. Plaintiff contends that at no point before October 2008 was Myers
critical of the way plaintiff recorded her sales calls. Pltf Affid. at ¶ 9. Plaintiff states she
received no negative performance evaluations or feedback from Myers before October 2008. Id.
at ¶ 7. After she reported her pregnancy to Myers, however, plaintiff states that Myers was
hostile, negative, and critical of plaintiff's work performance. Id. at ¶ 10.
On October 28, 2008, after Myers's October 27-28, 2008 field visit, plaintiff contacted
Lilly's human resources department to complain that Myers was treating her differently because
of her pregnancy. Ex. 2 to Houze Depo. Plaintiff received some suggestions from human
resources about approaching Myers. Id. Plaintiff called human resources back the next day to
8 - OPINION & ORDER
ensure that the conversation she had had the previous day was confidential. Ex. 2 to Houze
Depo. She was assured it was. Id. Plaintiff reported that she had spoken with Myers and "it
went well" and that "things are back on track." Id.
Plaintiff called human resources again following Myers's November 11, 2008 remote
coaching session. Ex. 3 to Houze Depo. She repeated her concern that since telling Myers of her
pregnancy, Myers had questioned her performance. Id.
On November 24, 2008, notes made by Lilly's human resources staff indicate that after
the most recent call from plaintiff, they reviewed documents sent to them by plaintiff, but saw no
indication that plaintiff's announcement of her pregnancy was related to the coaching given by
Myers. Ex. 3 to Houze Depo. Human resources staff noted that Myers had detailed her
observations in the field visit/coaching notes and provided coaching in response to her
observations. Id. Upon calling plaintiff to tell her of their conclusion, plaintiff was still
convinced that Myers was linking her pregnancy and performance. Id. Plaintiff was told that a
different human resources employee would review the documents. Id. That employee came back
with the same observations. Id. Plaintiff was told that the second human resources employee
also saw no "red flags." Id.; see also Pltf Depo. at p. 202.
Plaintiff's 2008 annual review notes several accomplishments. Ex. 6 to Pltf Depo.
(noting that she had a successful year with "Portfolio Sales," "made quota on ReoPro" and
"Xigris," and had a strong start with insulin pens; further noting her contribution to a newsletter,
assisting new hires, helping prepare for a "launch," and providing district leadership). The
review also notes that her overall sales trended down, and that in July through October, she did
not effectively prioritize her time, leading to gaps in customer contacts. Id. Although in
9 - OPINION & ORDER
November she improved her routing to include her key customers, she needed to focus on
consistency in routing in order to "improve her ability to turn her business back around in 2009."
Id. She was rated "successful" in four leadership behaviors," "outstanding" in one leadership
behavior, and "needs improvement" in two. Id. She received no unsatisfactory ratings. Id.
Plaintiff contends that during the meeting regarding this review, Myers asked how she was
feeling, and asked about her age and her due date. Pltf Depo. at pp. 194-95. Plaintiff contends
that Myers brought up her pregnancy again in early January 2009 while they were in Seattle for a
meeting. Pltf Depo. at p. 195.
On January 13, 2009, Myers contacted plaintiff to schedule a field visit in February,
providing plaintiff with several available dates. Myers Affid. at ¶ 17. None of them worked and
Myers thought that plaintiff was evasive in her answers. Id.; Myers Depo. at pp. 175, 178-79. It
was unusual for a representative to be unavailable for a field visit, and in light of other concerns
she had about plaintiff's territory, Myers began to suspect there may be problems with plaintiff's
reporting of her activities. Myers Depo. at p. 175; Myers Affid. at ¶ 17.
Myers reviewed plaintiff's calendar, then began gathering data from various sources,
including plaintiff's physician call activity and expense reports. Myers Affid. at ¶ 17. Myers
discovered information that troubled her, particularly information regarding plaintiff's time out of
the field. Id. As a result, on January 14, 2009, she contacted human resources representative
Susan Burleigh for guidance. Id. Burleigh referred Myers to human resources representative
Miles Houze. Id. at ¶ 18; see also Houze Affid. at ¶ 5. At Myer's request, Houze ordered
plaintiff's gas card report which shows mileage every time the sales representative puts gas in the
car. Houze Affid. at ¶ 6; Myers Affid. at ¶ 20. With Houze's assistance, Myers analyzed various
10 - OPINION & ORDER
records related to plaintiff to determine any discrepancies. Id. at ¶ 7. Houze states this is
standard practice in any case of suspected call falsification. Id.
Myers reviewed plaintiff's call and expense data and on January 16, 2009, forwarded a
copy of her preliminary analysis of plaintiff's calls to Burleigh and Houze. Myers Affid. at ¶ 19;
Ex. 3 to Myers Affid. (copy of her analysis). Myers also briefly looked at call data for other sales
representatives in her district but found no significant discrepancies in that data. Myers Affid. at
¶ 21.
Myers prepared a summary of various discrepancies in plaintiff's call reporting. Id. at ¶
22; Ex. 4 to Myers Affid. (copy of the summary and spreadsheet). The summary noted items
such as duplicate calls, questionable calls, mileage discrepancies, expense report lunches with
entry errors, days out of territory that were not approved, and call entries which did not match
routing on plaintiff's calendar. Ex. 4 to Myers Affid. at p. 1.
Houze also asked Myers to attempt to verify plaintiff's call activity with physician offices.
Myers Affid. at ¶ 23. Myers contacted several doctors' offices about their internal policies about
meeting with sales representatives, and to determine whether they knew plaintiff, whether she
visited these doctors, and whether they could provide actual dates the doctors were available for
lunch. Id. She recorded the information on her spreadsheet. Id.
Myers states that the information she received suggested that plaintiff was falsifying calls.
Id. For example, she states that she confirmed with a doctor's office that the doctors do not see
sales representatives on Fridays, yet plaintiff entered calls to those doctors on Friday, August 22,
2008. Id. at ¶ 24. She confirmed with another doctor's office that only three doctors worked on
October 7, 2008, but plaintiff entered six calls. Id. She confirmed with another doctor's office
11 - OPINION & ORDER
that the doctors did not attend lunch on October 15, 2008, but plaintiff entered two calls. Id.
Plaintiff contends that Myers again inquired about plaintiff's pregnancy at the end of
January 2009. Pltf Depo. at pp. 196-97. At this time, according to plaintiff, Myers was inquiring
about plaintiff's due date. Id. Plaintiff states that Myers stated she had to find someone to fill
plaintiff's position because plaintiff's maternity leave coincided with the launch of Prasugrel,
which Myers indicated was a big part of her business. Id. at p. 198.
On January 22, 2009, Myers generated an absence notice detailing plaintiff's maternity
leave. Pltf Depo. at p. 197; Myers Affid. at ¶ 15. Under Lilly policy, such absence notifications
are generated by the employee's manager. Pltf Depo. at pp. 197-98. Plaintiff's FMLA leave was
approved. Houze Affid. at ¶ 17; Ex. 3 to Houze Affid.
On February 2, 2009, Myers did another remote coaching of plaintiff. Ex. 20 to Pltf
Depo. There are no noted strengths or areas for development. Id. Plaintiff was rated below
average in three core competencies, and not observed in two others. Id. Myers's general
comments were: "Arlette - This is not what good looks like for a remote coaching call. I expect
you to get engaged on your account as this is the top insulin account YOU picked for 3 quarters
in a row. If there is something you don't know how to do, just ask as I am here to help you grow
your skills and be successful." Id.
In early February, Myers scheduled a meeting with plaintiff for February 11, 2009, to
discuss the discrepancies in plaintiff's call notes and expense reports. Myers Affid. at ¶ 26.
Houze states that it is standard practice to not tell the employee the purpose of a meeting when
there is a falsification investigation. Houze Affid. at ¶ 11; Houze Depo. at p. 106; Pltf Depo. at
p. 100 (plaintiff states she was told she needed to come to Bend for a meeting with Myers).
12 - OPINION & ORDER
Myers states in her affidavit that "a script to be used to ask Schuett questions about my findings
was generated." Myers Affid. at ¶ 25; Ex. 5 to Myers Affid.
As had been arranged, plaintiff met Myers in the lobby of a hotel, and then went to a
conference room with Myers. Pltf Depo. at p. 102. Houze participated by phone. Id. During
the meeting, Myers discussed plaintiff's time out of the field. Pltf Depo. at pp. 117, 124, 128-20.
Myers inquired about several unapproved out of territory days, including six snow days in
December 2008, and three additional days with no calls. Id. As for the snow days, Schuett could
recall only that she took "whatever the schools did." Id. at pp. 128-29. Otherwise, plaintiff's
answer to Myers's questions regarding her out of territory questions was, for the most part, "I
don't know." Id. at p. 124.
Plaintiff testified in deposition that Myers asked her about duplicate calls to the same
doctor on the same day, to which plaintiff responded "I don't know how that would happen." Pltf
Depo. at p. 124. According to Myers, duplicate calls are highly unusual and only very rarely
would a sales representative see a doctor twice in one day. Myers Depo. at pp. 136-37.
Myers asked plaintiff how it was that she recorded a call to a doctor in November 2008,
but, during the February 2, 2009 remote coaching session, told Myers that she had never met
him. Myers Affid. at ¶ 27. Myers states that plaintiff had no explanation. Id. In plaintiff's
deposition, plaintiff could not recall having told Myers that she had not met that doctor. Pltf
Depo. at p. 143.
Houze states that during the meeting, Myers asked plaintiff about several discrepancies
related to sales calls, time out of the field, mileage, and expenses. Houze Affid. at ¶ 12. He
states that in many instances, plaintiff was unable to offer explanations for the discrepancies. Id.
13 - OPINION & ORDER
Myers and Houze state that during the meeting, plaintiff admitted to falsifying calls.
Myers Depo. at p. 176 (plaintiff admitted to call falsification that day); Houze Affid. at ¶ 13 ("As
the meeting progressed, Schuett admitted more than once that she had falsified calls."). In her
affidavit, Myers also states that she specifically recalled plaintiff's admission of call falsification,
and her contemporaneously-recorded notes contain at least two times where Myers wrote
"falsified" next to particular instances she had previously noted on her script. Myers Affid. at ¶
28; Ex. 8 to Myers's Affid. at pp. 18, 19.
In her deposition testimony, plaintiff was asked these questions and gave these answers:
Q. In this meeting [in February 2009] did you admit that you had entered calls
that you hadn't actually made?
A. I'm not sure.
***
Q. Did you admit to Mr. Houze or Ms. Myers in the meeting in February that you
had falsified calls?
A. I told them I did what I was told.
Q. Did you admit to falsifying?
A. I don't recall.
Pltf Depo. at pp. 144, 150.
At some point, Myers and Houze took a break from the meeting and contacted individuals
in Lilly's human resources and legal departments. Myers Affid. at ¶ 29. Myers and Houze then
decided to terminate plaintiff's employment for falsification of call records. Id.; Myers Depo. at
p. 176.
Plaintiff testified in deposition that following the meeting, she spoke with Houze
14 - OPINION & ORDER
privately and told him that she had filed a complaint against Myers because of her pregnancy and
she did not believe that anything she said could change their minds. Pltf Depo. at pp. 103, 10506. According to plaintiff, Houze did not respond. Id. at p. 106. Plaintiff's laptop was taken and
she was escorted home by the security guards.
Any additional facts are noted below.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
identifying those portions of "'the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence
of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present "specific facts"
showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28
(9th Cir. 2009) (internal quotation omitted). The nonmoving party must go beyond the pleadings
and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23.
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court views inferences drawn from the facts
in the light most favorable to the nonmoving party and draws all reasonable inferences in that
party's favor. Long v. City & County of Honolulu, 511 F.3d 901, 905 (9th Cir. 2007).
15 - OPINION & ORDER
If the factual context makes the nonmoving party's claim as to the existence of a material
issue of fact implausible, that party must come forward with more persuasive evidence to support
his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
DISCUSSION
I. FMLA/OFLA
Plaintiff alleges that during the course of her employment with Lilly, she exercised her
rights under FMLA by requesting leave for the birth of her child. Compl. at ¶ 36. She contends
that Lilly retaliated against her and terminated her employment upon learning of her intention to
exercise rights under FMLA. Id. at ¶ 38. She further alleges that Lilly's purported reason for
terminating her is pretextual. Id. at ¶ 40.
She makes identical allegations in support of her OFLA claim. Id. at ¶¶ 46, 47, 48.
Several decisions in this Court make clear that OFLA is to be construed consistently with FMLA.
E.g., Benz v. West Linn Paper Co., No. 3:10–cv–519–ST, 2011 WL 2935396, at *19 (D. Or. July
20, 2011) (noting that under O.R.S. 659A.186(2), OFLA is to "be construed to the extent
possible in a manner that is consistent with any similar provisions of" the FMLA and thus,
Oregon courts look to federal law when interpreting the OFLA); Davis v. Pacific Saw & Knife
Co., No. CV 08-676-HU, 2009 WL 936471, at *4 (D. Or. Feb. 12, 2009) (analyzing FMLA and
OFLA claims together), adopted by Judge King (D. Or. Apr. 06, 2009).
It is clear that the claim plaintiff asserts in her Complaint is viewed in the Ninth Circuit as
a FMLA "interference" claim. The FMLA statutory scheme is as follows:
///
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(a) Interference with rights
(1) Exercise of rights
It shall be unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided under this subchapter.
(2) Discrimination
It shall be unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice made unlawful by
this subchapter.
(b) Interference with proceedings or inquiries
It shall be unlawful for any person to discharge or in any other manner
discriminate against any individual because such individual-(1) has filed any charge, or has instituted or caused to be instituted any
proceeding, under or related to this subchapter;
(2) has given, or is about to give, any information in connection with any
inquiry or proceeding relating to any right provided under this subchapter;
or
(3) has testified, or is about to testify, in any inquiry or proceeding relating
to any right provided under this subchapter.
29 U.S.C. § 2615.
In Bachelder v. America West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001), the Ninth
Circuit discussed the difference between the FMLA's "interference" provision and its
"discrimination" and "retaliation" provisions. Under 29 U.S.C. § 2615(a)(1), the interference
provision, "the issue is one of interference with the exercise of FMLA rights, . . . , not retaliation
or discrimination." Id. at 1124. Under the discrimination provision in 29 U.S.C. § 2615(a)(2), an
employer may be liable for discriminating against any individual for "opposing any practice made
unlawful by this subchapter[.]" 29 U.S.C. § 2615(a)(2). The separate retaliation provision in
17 - OPINION & ORDER
section 2615(b) prohibits discrimination against any individual for instituting or participating in
FMLA proceedings or inquiries. 29 U.S.C. § 2615(b).
As the Bachelder court explained, "[b]y their plain meaning, the anti-retaliation or antidiscrimination provisions do not cover visiting negative consequences on an employee simply
because he has used FMLA leave. Such action, is instead, covered under § 2615(a)(1), the
provision governing '[i]nterference[.]'" Bachelder, 259 F.3d at 1124; see also Xin Liu v. Amway
Corp., 347 F.3d 1125, 1133 n.7 (9th Cir. 2003) (noting that some circuits have held that claims in
which the plaintiff alleged that he or she was subjected to an adverse employment action for
taking FMLA protected leave, are properly brought under section 2615(a)(2), but that in the
Ninth Circuit, section 2615(a)(1) properly applies to employees who simply take FMLA leave
and as a consequence are subjected to unlawful actions by the employer; further noting that in the
Ninth Circuit, section 2615(a)(2) applies only to employees who oppose employer practices made
unlawful by FMLA).
In several cases, this Court has noted that claims designated by plaintiffs as FMLA
"retaliation" or "discrimination" claims are, in the Ninth Circuit, properly analyzed as
"interference" claims under section 2615(a)(1). E.g., Benz, 2011 WL 2935396, at *19 (although
plaintiff had styled his claim as one for FMLA "retaliation," both the FMLA and OFLA claims
were "more properly analyzed as claims for 'interference' with his rights because they rel[ied] on
allegations of chilling Benz's statutory right to take FMLA (and OFLA) leave."); Davis, 2009
WL 936471, at *4 (plaintiff referred to a "retaliation" claim in her Amended Complaint, but at
oral argument acknowledged that in the Ninth Circuit, it was properly viewed as an interference
claim).
18 - OPINION & ORDER
Defendants have understood plaintiff's FMLA claim as an "interference" FMLA claim.
They argue that under the appropriate analysis for interference claims, plaintiff cannot show that
Lilly's conduct was motivated by the exercise of her FMLA rights. In response, plaintiff argues
that defendants have mischaracterized her FMLA claim because she contends not only that she
suffered adverse consequences as a result of requesting leave (an "interference" claim), but also
in retaliation for complaining to Lilly's human resources department about how Myers treated her
after she requested leave. I will first address the claim plaintiff originally brought in her
Complaint, which I view as a FMLA "interference" claim. I will then address the
discrimination/retaliation claim she argues for in her summary judgment response memorandum.
A. Interference Claim
To succeed on this claim, plaintiff must show that (1) she exercised her rights under the
FMLA; (2) defendants subsequently engaged in conduct that tended to chill the exercise of her
FMLA rights; and (3) defendants' conduct was motivated by the exercise of his FMLA rights.
Bachelder, 259 F.3d at 1124–26; see also Xin Liu, 347 F.3d at 1135-36 (noting that under
Bachelder, when an employee alleges that his or her FMLA leave is impermissibly considered in
the decision to terminate him or her, the court applies the standard set forth by the Department of
Labor in 29 C.F.R. § 825.220(c), and thus, at trial, an employee may prevail on a claim that an
employer interfered with her rights by terminating her in violation of FMLA by showing, by
either direct or circumstantial evidence, or both, that her taking of FMLA-protected leave
constituted a negative factor in the decision to terminate her).
Defendants do not challenge that plaintiff exercised her family leave rights and that they
engaged in conduct that tended to chill the exercise of her rights. They argue that Lilly never
19 - OPINION & ORDER
denied plaintiff's request for FMLA leave and that after plaintiff told Myers in January 2009 of
her due date and request for leave, Myers immediately generated an absence notification for
plaintiff and Lilly later approved her FMLA leave. More importantly, defendants argue, the
evidence shows that plaintiff was terminated for falsifying calls when she was unable to explain
the discrepancies in her sales calls, time out of the field, mileage, and expenses, and when she
admitted that she had falsified calls.
Plaintiff argues that a reasonable juror could conclude that the call falsification allegation
is a pretext and that defendants were motivated, at least in part, to terminate plaintiff because of
her request for leave. Although the evidence is not overwhelming, when I construe the
inferences in plaintiff's favor, I agree with plaintiff.
Defendants concede that for the purposes of summary judgment they must accept
plaintiff's testimony that she told Myers in October 2008, not January 2009, about her pregnancy.
While defendants correctly represent that there is no evidence in the record that plaintiff formally
requested FMLA/OFLA leave in October 2008, the only reasonable conclusion by any employer
upon learning of an employee's pregnancy is that some leave will be taken at some point. That is,
a leave request is implicit in the notice of her pregnancy. Thus, I do not find it relevant that there
was no formal request for FMLA/OFLA leave in October 2008. Moreover, a formal request for
leave was generated in January 2009, before her February 2009 termination.
When viewing all of the evidence in a light most favorable to plaintiff, it is possible to
read the post-July 2008 coaching notes and the 2008 annual performance review as being much
more negative than the prior notes and annual reviews. Although plaintiff's sales numbers were
lagging in 2008, the evidence of the performance evaluation/coaching notes, coupled with
20 - OPINION & ORDER
plaintiff's testimony that after October 2008, Myers began treating her differently, creates an
issue of fact on the causation element. Additionally, while plaintiff repeatedly responded to
deposition questions by stating she could "not recall," she does state that in May 2008, Myers
instructed her to make four calls per day, and Myers did not care how this was accomplished.
Although Myers and Houze state that plaintiff admitted in the February 2009 meeting that she
falsified calls, plaintiff's testimony is that she told Myers and Houze that she was doing what she
was told.
A reasonable juror could conclude that plaintiff exercised FMLA/OFLA rights when she
told Myers in October 2008 that she was pregnant and that defendants immediately engaged in
conduct which chilled the exercise of her rights by giving her negative reviews, by Myers's
decision to closely examine plaintiff's call reporting and other records, and then by terminating
her. Plaintiff creates an issue of fact as to whether her announcement to Myers in October 2008
that she was pregnant, and the inherent request for leave that such an announcement carried,
followed by a formal leave request initiated in January 2009, constituted a negative factor in the
decision to terminate her.
Defendants contend that even if plaintiff's testimony that Myers's May 2008 instructions
to her were reasonably understood as an instruction to falsify calls, there are still undisputed facts
showing that plaintiff had several other problems with her records, including unexplained out of
territory dates, mileage discrepancies, and calls on physicians she admitted she had never met.
Defendants also note that some of the issues with plaintiff's call reporting pre-date the alleged
conversation with Myers in May 2008 and thus, that conversation cannot "explain away" the
evidence of call falsification dating back to January of that year.
21 - OPINION & ORDER
I agree with defendants that there is evidence to suggest that plaintiff did not maintain
proper records and that she may have falsified aspects of her call reporting. Nonetheless, the
standard in regard to the FMLA/OFLA claim is that her request for FMLA leave
constituted a negative factor in subsequent decisions regarding her employment. It is important
to note here that some of the evidence relied on by defendants is disputed. For example, while
Myers states that plaintiff told her she had never met the doctor she allegedly previously called
on, plaintiff's testimony was that she did not recall telling Myers she had never met the doctor.
This may be an honest failure to recollect a conversation or a deliberately evasive answer. Either
way, however, crediting one or the other is an assessment of plaintiff's credibility which is
inappropriate on summary judgment. Giving plaintiff the benefit of the doubt, which I must do,
the evidence creates an issue of fact regarding that particular conversation. Additionally, the tone
of the coachings/field visit memos became more negative almost as soon as plaintiff allegedly
told Myers she was pregnant, which was before Myers had evidence of problems with plaintiff's
records. Accordingly, the evidence as a whole creates an issue of fact regarding defendants'
motives. I cannot say that no reasonable juror would conclude that plaintiff's pregnancy and
leave request were not factors in the actions taken against her. Thus, on the FMLA/OFLA
interference claim, I deny defendants' motion.
B. Discrimination/Retaliation
In order to qualify as a FMLA retaliation claim in the Ninth Circuit, plaintiff has to show
that she meets the criteria of section 2615(b)(1), (2), or (3). At the time of her discharge, she had
not engaged in conduct outlined in subsections (b)(1) or (b)(3). I understand subsection (b)(2) to
address giving information as part of an investigation related to a FMLA claim. Accordingly, in
22 - OPINION & ORDER
my opinion, her allegations that she was terminated because she complained to human resources
about Myers are more likely viewed as a FMLA "discrimination" claim than a "retaliation" claim.
In the end, however, as explained below, the distinction in this case is immaterial.
Defendants argue that plaintiff should not be allowed to bring a "newly-minted retaliation
claim" because it falls outside the scope of her Complaint. Defendants cite to Coleman v.
Quaker Oats, Inc., 232 F.3d 1271, 1291-94 (9th Cir. 2000) for the proposition that a plaintiff
cannot avoid summary judgment by asserting a theory not pleaded or made known to a defendant
during discovery because allowing a plaintiff to rely on an unpled theory would prejudice the
defendant. I need not decide whether plaintiff's attempt to bring a separate FMLA claim based
on a new theory of liability is appropriate because the evidence in the record is insufficient to
create an issue of fact on the claim.
The express language of section 2615(b) addressing retaliation requires plaintiff to show
that the discriminatory treatment was because of the protected activity recited in section
2615(b)(1), (b)(2), or (b)(3). Although the discrimination provision in section 2615(a)(2) does
not expressly contain the "because of" language, plaintiff's allegation here is that her adverse
treatment was in response to her complaints to human resources and thus, her argument
presupposes the same causation element even if the claim is considered a discrimination claim.
Thus, regardless of whether this is a FMLA retaliation claim or a FMLA discrimination claim,
plaintiff must show that she was terminated because of her complaint to human resources
regarding Myers's treatment of her.
The undisputed evidence in the record is that neither Myers nor Houze, who made the
decision to terminate plaintiff, knew that plaintiff had complained to human resources about
23 - OPINION & ORDER
Myers's conduct toward her. Myers Depo. at pp. 164; Houze Depo. at pp. 113, 121. At oral
argument, plaintiff contended that Burleigh was one of the human resources representatives she
spoke to in the fall of 2008 when she called to complain about Myers, and that Burleigh was then
involved in the decision-making process which led to her termination. She argued that this is
sufficient to show causation.
I disagree. The notes from the conversations plaintiff had with human resources in the
fall of 2008 show that she had substantive discussions with Mascelia Elaine Miranda and Karen
O'Donnell. Ex. 2 & 3 to Houze Depo. Additionally, O'Donnell and Miranda performed the
reviews of the documents plaintiff sent. Ex. 3 to Houze Depo. The only mention of Burleigh is
when plaintiff called to confirm that a conversation she had with Miranda the previous day would
be confidential. Ex. 2 to Houze Depo. Burleigh took that call and told plaintiff her conversation
was confidential. Id.
Later, Myers, after becoming suspicious about plaintiff's record-keeping, contacted
Burleigh for guidance. Myers Affid. at ¶ 17. Burleigh referred Myers to Houze. Id. at ¶ 18.
Other than Myers subsequently sending her preliminary analysis of data regarding plaintiff's
records to both Houze and Burleigh, Myers Affid. at ¶ 19, there is no other mention of Burleigh
in the record, including no evidence that she participated in any decision to terminate plaintiff.
Thus, while the record allows for an inference that Myers may have treated plaintiff
differently because of her request for leave, there is nothing in the record to allow a factfinder to
conclude that Myers or Houze could have been motivated in their actions by plaintiff's
complaints about Myers to human resources. There is no evidence whatsoever that either of
them had any knowledge of the complaints. And, there is no evidence that Burleigh played a role
24 - OPINION & ORDER
in the termination decision. Without such evidence, any discrimination/retaliation claim under
FMLA/OFLA that plaintiff asserts based on negative treatment caused by her human resources
complaints, must be dismissed. E.g., Noga v. Costco Wholesale Corp., 583 F. Supp. 2d 1245,
1263 (D. Or. 2008) (no evidence that supervisor who refused to rehire plaintiff had knowledge of
complaints and thus, summary judgment to employer on plaintiff's retaliation claims was
appropriate); Dameworth v. Linn-Benton Comm. Coll., No. CV-07-6162-CO, 2007 WL
2816216, at *6 (D. Or. Sept. 27, 2007) ("'[e]ssential to a causal link is evidence that the employer
was aware that the plaintiff had engaged in the protected activity'") (quoting Cohen v. Fred
Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982)).
I grant summary judgment to defendants on any FMLA/OFLA discrimination/retaliation
claim.
II. Title VII/O.R.S.659A.030 Pregnancy Discrimination Claims
A. Legal Standards
Generally, a plaintiff may prevail on summary judgment by providing direct evidence of
discrimination or by relying on circumstantial or indirect evidence and satisfying the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Swierkiewica v. Sorema,
N.A., 534 U.S. 506, 511-12 (2002); see also Cornwell v. Electra Cent. Credit Un., 439 F.3d
1018, 1029-30 (9th Cir. 2006) (plaintiff may rely successfully on either circumstantial or direct
evidence to defeat a motion for summary judgment in a civil action under Title VII).
The burden-shifting framework requires the plaintiff to first establish a prima facie case
of unlawful discrimination followed by the defendant articulating a legitimate, nondiscriminatory
25 - OPINION & ORDER
reason for its action. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 n.16 (9th Cir. 2004).
If the defendant does so, the plaintiff must show that the articulated reason is a pretext for
discrimination. Id.; Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 658-59 (9th
Cir. 2002).
Several cases make clear that the analysis for the O.R.S. 659A claim is the same as the
Title VII claim. E.g., Logan v. West Coast Benson Hotel, 981 F. Supp. 1301, 1319 (D. Or. 1997)
(in analyzing Oregon discrimination claims under Chapter 659, Oregon courts have looked to
Title VII cases for guidance because Oregon statutes are "wholly integrated and related" to Title
VII); Reid v. Evergren Aviation Ground Logistics Enters., Inc., No. CV-07-1641-AC, 2009 WL
136019, at *7 (D. Or. Jan. 20, 2009) (standard for establishing a prima facie case of
discrimination under 659A.030 is identical to that used to establish a prima facie case of
discrimination under Title VII); see also Pool v. VanRheen, 297 F.3d 899, 910 (9th Cir. 2002)
("Or. Rev. Stat. § 659A.030 was modeled after Title VII of the Civil Rights Act, 42 U.S.C. §
2000e-3(a), which prohibits similar conduct."). Also, the burden-shifting framework of
McDonnell Douglas applies to Oregon Chapter 659 claims adjudicated in federal court,
regardless of whether the jurisdictional basis for the state claim is diversity or supplemental
jurisdiction. Dawson v. Entek Int'l, 630 F.3d 928, 934-35 (9th Cir. 2011).
Defendants argue that plaintiff cannot establish a prima facie case and that even if she
can, she cannot establish pretext. For the reasons explained below, I disagree.
B. Prima Facie Case
To establish a prima facie case of discrimination under Title VII using the McDonnell
Douglas test, plaintiff must show (1) she belongs to a protected class; (2) she was performing her
26 - OPINION & ORDER
position in a satisfactory manner; (3) she was subjected to an adverse employment action; and (4)
she was treated differently than similarly situated persons outside of her protected class. See
Aragon, 292 F.3d at 658 (noting elements of prima facie case in Title VII race discrimination
case); Cleese v. Hewlett-Packard Co., 911 F. Supp. 1312, 1317 (D. Or. 1995) (noting elements of
prima facie Title VII disparate treatment claim of pregnancy discrimination).
The amount of evidence required to make out a prima facie case is very little, and need
not even rise to the level of a preponderance of the evidence. Wallis v. J.R. Simplot Co., 26 F.3d
885, 888 (9th Cir. 1994).
Defendants concede that plaintiff is a member of a protected class, her termination was an
adverse action, and that she was arguably qualified for her position. Defendants argue that
plaintiff has no evidence that any similarly situated employee who was not in a protected class,
was treated differently than she was.
Defendants note that plaintiff acknowledges that a male sales representative was also
discharged for call falsification and thus, her prima facie case fails. The record shows that male
employee Jim Vu replaced plaintiff after her discharge. Myers Depo. at p. 162. He was
terminated in April 2010 for falsifying calls. Ex. 4 to Rockwell Affid. (employee record showing
April 29, 2010 termination date); Myers Depo. at p. 162; see also Pltf Depo. at pp. 97-98
(plaintiff heard that Vu was let go and Vu told her that Myers had looked at his calls and he was
wrongfully terminated). Defendants argue that with this evidence, plaintiff cannot establish a
prima facie case because she cannot show that similarly situated employees outside of her
protected class were treated differently.
Plaintiff responds that the Ninth Circuit has acknowledged that evidence such as this,
27 - OPINION & ORDER
which post-dates the termination in question, has little value. In Chuang v. University of Calif.,
225 F.3d 115 (9th Cir. 2000), the court explained, in discussing the issue of pretext, that the
hiring of three Asian professors "long after the Chuangs filed their complaints with the EEOC
and their lawsuit in federal court" eliminated "any probative value the evidence might otherwise
have." Id. at 1129. The court explained that "[g]iven the obvious incentive in such
circumstances for an employer to take corrective action in an attempt to shield itself from
liability, it is clear that nondiscriminatory employer actions occurring subsequent to the filing of
a discrimination complaint will rarely even be relevant as circumstantial evidence in favor of the
employer." Id. (internal quotation omitted; further noting that an earlier Ninth Circuit case had
found the irrelevance of post-complaint promotions "even more apparent in disparate treatment
cases" which address "whether discrimination occurred prior to the commencement of a Title VII
action.").
Defendants attempt to distinguish Chuang on the basis that there, the hires had occurred
more than eight years after the events in question, providing the basis for the court to rule that the
subsequent hiring practices were immaterial. Defendants note that Vu's discharge took place
much closer in time to plaintiff's discharge than the post-complaint hires in Chuang. But, it is
undisputed that at the time Vu was discharged, plaintiff had already filed an administrative
complaint alleging discrimination against defendants. Although the Oregon Bureau of Labor and
Industries (BOLI) had dismissed that administrative complaint by the time Vu was fired because
it did not find sufficient evidence to continue its investigation, plaintiff still had the right to sue.
And, nothing in the discussion in Chuang suggests that the holding there hinged on the length of
time being eight years from the termination; rather, the focus was on the fact that the defendants'
28 - OPINION & ORDER
hiring actions occurred after the filing of an administrative complaint and a lawsuit. Thus, I
agree with plaintiff that the evidence regarding Vu's firing is not probative of defendants'
termination practices.
However, it remains that plaintiff presents no evidence at all of a similarly situated
employee outside of her protected class who was treated differently. Thus, plaintiff fails to
establish a prima facie case under the four-part McDonnell Douglas test.
In the Ninth Circuit, plaintiff is not required to use the McDonnell Douglas test to
establish a prima facie case. Lowe v. City of Monrovia, 775 F.2d 998, 1006 (9th Cir. 1985) ("a
[Title VII] plaintiff can establish a prima facie case of disparate treatment without satisfying the
McDonnell Douglas test"), modified 784 F.2d 1407 (9th Cir. 1986).
The Lowe court explained that
a plaintiff may establish a prima facie case of disparate treatment by satisfying the
McDonnell Douglas four-part test, thereby creating a rebuttable presumption of
discriminatory treatment, or by presenting actual evidence, direct or
circumstantial, of the employer's discriminatory motive. When a plaintiff does not
rely exclusively on the presumption but seeks to establish a prima facie case
through the submission of actual evidence, very little such evidence is necessary
to raise a genuine issue of fact regarding an employer's motive; any indication of
discriminatory motive-including evidence as diverse as “the [defendant's]
reaction, if any, to [plaintiff's] legitimate civil rights activities; and treatment of
[plaintiff] during his prior term of employment; [defendant's] general policy and
practice with respect to minority employment,” . . . -may suffice to raise a
question that can only be resolved by a factfinder. Once a prima facie case is
established either by the introduction of actual evidence or reliance on the
McDonnell Douglas presumption, summary judgment for the defendant will
ordinarily not be appropriate on any ground relating to the merits because the crux
of a Title VII dispute is the “elusive factual question of intentional
discrimination,” . . . . Moreover, when a plaintiff has established a prima facie
inference of disparate treatment through direct or circumstantial evidence of
discriminatory intent, he will necessarily have raised a genuine issue of material
fact with respect to the legitimacy or bona fides of the employer's articulated
reason for its employment decision.
29 - OPINION & ORDER
Id. at 1009 (citations omitted).
Plaintiff establishes a prima facie case through circumstantial evidence as discussed
above in connection with her FMLA claim. The circumstantial evidence is capable of suggesting
that Myers's treatment of plaintiff, meaning the more negative performance coachings
commencing in October 2008, the negative comments in the 2008 annual review, Myers's
decision to dig into plaintiff's call records, and ultimately terminating her, was motivated by
plaintiff's pregnancy because, primarily, the timing of these events coincides with plaintiff's
informing Myers in October 2008 that she was pregnant. Given that very little evidence is
required for plaintiff to establish her prima facie case, she meets her prima facie burden.
C. Legitimate, Nondiscriminatory Reason
If the plaintiff is able to make out a prima facie case, the burden of production shifts to
the employer to articulate some legitimate, nondiscriminatory reason for the employment action.
McDonnell Douglas, 411 U.S. at 802. As the Supreme Court explained, "the McDonnell Douglas
presumption places upon the defendant the burden of producing an explanation to rebut the prima
facie case- i.e., the burden of ‘producing evidence 'that the adverse employment actions were
taken ‘for a legitimate, nondiscriminatory reason.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 506 (1993) (quoting Burdine, 450 U.S. at 254). This burden is one of production, not
persuasion. Id.
Defendants have produced evidence of a legitimate, nondiscriminatory basis for their
actions by showing that plaintiff's sales numbers were declining through 2008, and she had
discrepancies in her calls, mileage, out of field reports.
///
30 - OPINION & ORDER
D. Pretext
Plaintiff can establish pretext in two ways: "(1) indirectly, by showing that the employer's
proffered explanation is 'unworthy of credence' because it is internally inconsistent or otherwise
not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer." Chuang, 225 F.3d at 1127. Plaintiff does not need to prove both at summary
judgment. To survive summary judgment, plaintiff is not required to provide direct evidence of
discriminatory intent as long as a reasonable factfinder could conclude, based on plaintiff's prima
facie case and the factfinder's disbelief of defendant's reasons for discharge, that discrimination
was the real reason for defendant's actions. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918
n.2 (9th Cir. 1996).
Additionally, plaintiff does not have to introduce additional, independent evidence of
discrimination at the pretext stage. Chuang, 225 F.3d at 1127. Rather, "a disparate treatment
plaintiff can survive summary judgment without producing any evidence of discrimination
beyond that constituting his prima facie case, if that evidence raises a genuine issue of material
fact regarding the truth of the employer's proffered reasons." Id.
Circumstantial evidence "can take two forms." Coghlan v. American Seafoods Co. LLC,
413 F.3d 1090, 1095 (9th Cir. 2005). The plaintiff can make an affirmative case that the
employer is biased by, for example, relying on statistical evidence. Id. Or, "the plaintiff can
make his case negatively, by showing the employer's proffered explanation for the adverse action
is 'unworthy of credence.'" Id. (quoting Burdine, 450 U.S. at 256). As the Supreme Court
explained in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000), "[p]roof that
the defendant's explanation is unworthy of credence is simply one form of circumstantial
31 - OPINION & ORDER
evidence that is probative of intentional discrimination, and it may be quite persuasive."
Moreover, "a plaintiff's prima facie case, combined with sufficient evidence to find that the
employer's asserted justification is false, may permit the trier of fact to conclude that the
employer unlawfully discriminated." Id. at 148.
Where evidence of pretext is circumstantial, rather than direct, the plaintiff must produce
“specific” and “substantial” facts to create a triable issue of pretext. Godwin v. Hunt Wesson,
Inc., 150 F.3d 1217, 1222 (9th Cir. 1998); but see Cornwell, 439 F.3d at 1029–31 (questioning
the continued viability of Godwin after Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)).
That standard, however, "is tempered by our observation that, in the context of Title VII claims,
the burden on plaintiffs to raise a triable issue of fact as to pretext is hardly an onerous one."
Noyes v. Kelly Servs., 488 F.3d 1163, 1170 (9th Cir. 2007) (internal quotation omitted).
When the evidence is construed in a light most favorable to plaintiff, it is capable of
suggesting to a reasonable juror that defendants' asserted justification of call falsification is
pretextual and that the true motive behind defendants' actions was that plaintiff was pregnant and
that her leave was untimely coinciding with a new product launch. Defendants contend they
fired plaintiff because of call falsification. Plaintiff points to the alleged conversation in May
2008 with Myers when Myers told her to make four calls per day and Myers did not care how
this was done. Plaintiff describes Myers telling her to record a call that was not a face to face
visit. A reasonable juror could conclude that plaintiff appropriately understood Myers to be
saying that something less than face to face interactions with doctors could count as a call and
that is what plaintiff proceeded to do. Defendants note that she was terminated for other
discrepancies in her call records and her mileage records, but the deposition testimony is that she
32 - OPINION & ORDER
was terminated for call falsification. Plaintiff's testimony about the May 2008 conversation with
Myers about the call quota is specific evidence that could undermine the validity of the reason
defendants proffer as supporting plaintiff's termination.
Additionally, plaintiff's performance was certainly adequate before October 2008, at least
as indicated by her annual reviews and her coachings. While both parties exaggerate to a certain
extent with plaintiff stating that her reviews showed her to be an exemplary and outstanding
employee and defendants suggesting that that her reviews showed there were problems all along,
the records speak for themselves and indicate that before October 2008, she was average to above
average with the occasional comment or rating suggesting areas of improvement, and after
October 2008, her reviews became much more negative. The call falsification and recordkeeping justification for the termination does not explain the negative reviews she received
shortly after she allegedly disclosed her pregnancy because the that information was not known
to defendants until mid to late January 2009.
Defendants argue that plaintiff cannot show pretext because she admitted that she
falsified calls. The deposition testimony on this is equivocal. In her deposition, plaintiff said she
was not sure if she admitted falsifying calls during the February 11, 2009 meeting, and that she
did not recall doing so. Pltf Depo. at pp. 144, 150. She also said that she told Myers and Houze
that she did what she was told. Thus, on this record, plaintiff does not concede that she made
that admission during the February 2009 meeting.
Defendants also point to the BOLI "Complaint Dismissal Memo" in which the BOLI
investigator stated that plaintiff "was terminated after the Respondent reviewed her calls and
concluded the Complainant had falsified calls she had made to buyers. The Complainant
33 - OPINION & ORDER
admitted to the Respondent that she had falsified calls to buyers. She admitted this conduct
when she was interviewed by the [Civil Rights Division of BOLI]." Ex. 5 to Domersant Affid.
Defendants argue that the BOLI records are admissible as business records under Federal
Rule of Evidence 803(8). Rule 803(8) allows the following documents into evidence as an
exception to the hearsay rule: records, reports, statements, or data compilations of public offices
or agencies setting forth the activities of the office or agency, matters observed pursuant to duty
imposed by law as to which matters there was a duty to report, or (in civil actions), factual
findings resulting from an investigation made pursuant to authority granted by law, unless the
sources of information or other circumstances indicate a lack of trustworthiness. Fed. R. Evid.
803(8).
While Rule 803(8) allows for admission of the agency's factual findings, it does not allow
the admission of hearsay contained within such factual findings. Defendants do not make a
separate argument as to why the statement plaintiff allegedly made to the BOLI investigator (the
hearsay within the hearsay) is admissible. Moreover, the rule notes that if there are
circumstances indicating a lack of trustworthiness, the record is not admissible. Here, the
investigator's interview notes are appended to the dismissal memo. The interview notes state that
"I [meaning the investigator] advised Complainant that Respondent says she was terminated
because she admitted that she had falsified call and expense records. Complainant said that she
did that at the direction of Myers." Id. The investigator's notes do not support the investigator's
statement that plaintiff admitted to the investigator that she falsified records. Rather, her
statement to the investigator is consistent with her testimony that she did what she was told.
Finally, in the end, even if the double hearsay contained in the BOLI exhibit were admissible, the
34 - OPINION & ORDER
evidence, including plaintiff's description of her May 2008 meeting with Myers and her
testimony that she acted only in accordance with Myers's instructions, must still be taken as true,
and as a result, the evidence creates an issue of fact regarding the facts and circumstances under
which plaintiff allegedly conceded that she falsified records.
Defendants' arguments suggest that in their view of the evidence, plaintiff is simply not
believable. While this may be a prevailing argument at trial, it cannot be a basis for summary
judgment. Because, when examining the evidence in a light most favorable to plaintiff,
reasonable jurors could conclude that defendants were motivated by her pregnancy, summary
judgment is inappropriate.
CONCLUSION
Defendants' motion for summary judgment [32] is granted as to a FMLA/OFLA
retaliation/discrimination claim, but is otherwise denied.
IT IS SO ORDERED.
Dated this
21st
day of
November
/s/ Marco A. Hernandez
Marco A. Hernandez
United States District Judge
35 - OPINION & ORDER
, 2011
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