Caravantes v. State of Oregon, et al
Filing
87
OPINION & ORDER: Defendants' Motion for Partial Summary Judgment 68 is Granted in Part and Denied in Part. Signed on 8/22/14 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARICRUZ CARAVANTES,
Plaintiff,
v.
3:13-cv-00355-PK
OPINION AND ORDER
STATE OF OREGON, d/b/a Oregon
Commission for the Blind, and
OREGON INDUSTRIES FOR THE
BLIND,
Defendants.
PAP AK, Magistrate Judge:
PlaintiffMaricrnz Caravantes brings this action against defendants State of Oregon, doing
business as the Oregon Commission for the Blind ("OCB"), and the Oregon Industries for the
Blind ("OIB"), alleging that, during her employment with the OIB, she was discriminated against
on the basis of her sex, race, and national origin and was subjected to a hostile work environment
Page 1 - OPINION AND ORDER
on the basis of her race and national origin. Now before the court is defendants' motion for
patiial summary judgment (#68). For the reasons set forth below, defendants' motion is granted
in part and denied in part.
FACTUAL BACKGROUND 1
"Defendant OCB is a statutorily created Oregon state agency," Second Amended
Complaint, #22, ii 2.2, that was responsible for establishing and maintaining Defendant OIB
while the OIB was in operation,2 Declaration of Dacia Johnson ("Johnson Deel."), #70, ii 4. "The
purpose of [the] OIB was to provide ... work training opportunities for individuals with
disabilities as part of their vocational rehabilitation." Id.
ii 5.
At all relevant times, Desiree
Paschall was the Director of the OIB, Leslie Jones was the Director of Administrative Services at
the OCB, and Linda Mock was the Director of the OCB. Declaration of Maricruz Caravantes
("Caravantes Deel."), #74, iiii 1-2; see also Ex. 15, Declaration of Patrick Leo McGuigan
("McGuigan Deel."), #73, at 11, 26. Both Paschall and Jones reported to Mock. Ex. 15,
McGuigan Deel., #73, at 28. As Director of Administrative Services, Jones was in charge of the
budget for the OCB and the OIB. Id. at 26-27. When the OIB wished to hire an employee,
Paschall would contact Jones and ask whether there were available funds. Id. at 30-31; see also
Ex. 16, McGuigan Deel., #73, at 25. Jones was also responsible for ensuring that the OIB's
building was maintained. Ex. 16, McGuigan Deel., #73, at 75-76. Jones's department was
1
The following recitation constitutes my construal of the evidentiary record in light of
the legal standard governing motions for summary judgment under Federal Rule of Civil
Procedure 56.
2
The "OIB has been closed since December 6, 2013." Declai·ation of Dacia Johnson,
#70, ii 4.
Page 2 - OPINION AND ORDER
responsible for processing the OIB's payroll. Ex. 15, McGuigan Deel., #73, at 28.
In February 2004, the OIB hired plaintiff as a Caregiver. Caravantes Deel., #74,
~
2.
Plaintiffs duties included "providing clients with activities, ... feeding clients who were unable
to feed themselves, distributing medications, cleaning and caring for clients with contagious
diseases, and assisting clients in the perfonnance of their own jobs with [the] OIB."
Id.~
4.
Plaintiff was also responsible for assisting wheelchair-bound clients use the restroom, including
lifting and returning the clients to their wheelchairs. Id.
was transferred to the kitchen. Id.
~
~
5. Shortly after plaintiff was hired, she
6. In June 2004, plaintiff was transfened to another
Caregiver position, this time assisting clients "who required the highest level of care and
assistance." Id.
In 2006, plaintiff began taking on additional duties. Id
~
7. First, when the OIB's payroll
specialist left, plaintiff took over the payroll specialist's job duties. Id. This included recording
client and staff timesheets in a computer program and sending the completed forms to the payroll
department at the OCB. Id The "OCB was responsible for reviewing and approving the
submitted timesheets and issuing pay checks." Id. Second, plaintiff began assisting Paschall
with her duties as Director of the OIB, including perfonning Paschall's duties when Paschall was
absent. Id.
~
8.
In 2008, Paschall spoke with Jones about hiring two on-call production workers. 3
Declaration of Desiree Paschall ("Paschall Deel."), #75,
3
~
3. Paschall ultimately hired Cesar
Although not entirely clear from the record, it appears that the OIB had contracts with
various outside businesses to produce goods. Ordinarily, the OIB employed its disabled clients
to produce the goods, paying them at a per-piece rate. The on-call production workers were
"responsible for finishing production of piece rate work so that [the] OIB [could] fulfill its
contracts on time." Paschall Deel., #75, ~ 3.
Page 3 - OPINION AND ORDER
Sauceda and Denver Orozco, plaintiffs son, for the positions. Id; see also Ex. 11, McGuigan
Deel., #73, at 1. Jones approved the new hires in her capacity as the director of
personnel/payroll. See Ex. 1, McGuigan Deel., #73, at 1; Ex. 2, McGuigan Deel., #73, at 1. As
on-call production workers, Sauceda and Orozco were "paid on a piece rate basis." Paschall
Deel., #75, ~ 4. In 2010, Paschall spoke with Jones regarding the costs associated with hiring
contractors to perfo1m maintenance on the OIB's building. Id
~
5. During this conversation,
Paschall and Jones discussed the possibility of paying Sauceda and Orozco "a flat rate in
exchange" for their maintenance services, as both men had relevant experience. Id "Jones
agreed that this was an acceptable atTangement." Id In connection with how to pay Sauceda and
Orozco, Jones instructed Paschall to "'figure it out' and 'do whatever [Paschall] want[ed]."' Id
~
6. Thereafter, Paschall instructed plaintiff
[t]o pay [Sauceda and Orozco] per hour. Per hour for the hours
that they had worked. And to get to the amount that they were
supposed to be there. What was done was that the staff [sic] for
which they were not paid, the piece rate that the staff was doing
that they had-that had to be added to-to their pay so that then
they could reach the amount of their salaiy.
Ex. 13, McGuigan Deel., #73, at 69. Consistent with these instructions, Sauceda and Orozco
would provide plaintiff with the hours that they worked each week, and plaintiff would record
the hours in a computer program and provide the timesheets to the payroll depaiiment at the
OCB. Caravantes Deel., #74, ~ 10.
Beginning in September 2011, Paschall experienced health problems requiring her to take
frequent medical leave. Id
~
11. Plaintiff took over many of Paschall's job duties, while still
perfo1ming her own duties. Id. During this time, Jones announced to the OIB staff that plaintiff
Page 4 - OPINION AND ORDER
would be in charge of the office until Paschall returned from medical leave. Id.; Ex. 16,
McGuigan Deel., #73, at 24. Plaintiff received a 5% pay increase for the months of October,
November, and December 2011 to compensate her for the additional work she was performing. 4
Caravantes Deel., #74, ~ 11; see also Ex. 3, McGuigan Deel., #73, at 1 (noting that plaintiff was
to "assume lead worker duties as of 10/1/11 in absence of program director"); Ex. 15, McGuigan
Deel., #73, at 78.
In April 2012, plaintiff learned that she was pregnant and that the pregnancy was
considered high risk. Caravantes Deel., #74,
~
12. Because her pregnancy was considered high
risk, plaintiff saw her doctor evety two weeks. Id. Plaintiff infotmed Paschall, Jones, and Mock
of her high-risk pregnancy and provided them with a doctor's note indicating that she could not
lift more than twenty pounds due to her pregnancy. 5 Id ~ 13; see also Ex. 4, McGuigan Deel.,
#73, at 1.
In early summer 2012, the OIB announced that it had an open Lead Worker position. The
Lead Worker was to provide "additional support for the program," as Paschall was still
experiencing health problems and taking frequent leave and plaintiff was pregnant and would
presumably have doctors' appointments. Ex. 15, McGuigan Deel., #73, at 85. Among other
things, the Lead Worker was to assist in "staff management, including hiring, supervising,
evaluating, disciplining, promoting and discharging approximately sixteen staff." Ex. 2, Johnson
4
The Personnel Change Notice authorizing the 5% pay increase does not indicate for
which months plaintiff would receive the increase. See Ex. 3, McGuigan Deel., #73, at 1. At
oral argument, the parties agreed that plaintiff received the pay increase only for the months of
October, November, and December 2011.
5
The same note also indicates that plaintiff had a possible disc ittjmy and that, due to
that injmy, she should not lift more than ten pounds. Caravantes Deel., #74, ~ 13.
Page 5 - OPINION AND ORDER
Deel., #70, at 2. Jones was in charge of recrniting for the position. Ex. 16, McGuigan Deel.,
#73, at 32; see also Ex. 15, McGuigan Deel., #73, at 76-77; Declaration of Veronica Chavez
("Chavez Deel."), #76,
~
14. In June 2012, Jones showed a copy of the job announcement that
she was planning to post on Craigslist to Veronica Chavez, an employee at the OIB. Chavez
Deel., #76, ~ 14. The announcement was only one page long and did not include any requirement
that the applicant have a bachelor's degree. Id. Jones thereafter posted a job announcement on
Craigslist. It is not clear whether the job announcement Jones posted on Craigslist was same job
announcement Jones had shown Chavez. A few individuals expressed interest in the position,
including plaintiff. Ex. 15, McGuigan Deel., #73, at 85-86. The Craigslist posting that plaintiff
saw was only one page long and did not require that the applicant have a bachelor's degree.
Caravantes Deel., #74,
~
14. After plaintiff and the other individuals expressed interest, Jones
"changed the duties of the position." Ex. 15, McGuigan Deel., #73, at 86. It is not clear what
specifically Jones changed in the job announcement, but Chavez later saw a job announcement
for the position on Craigslist that was a few pages long and that required the applicant to have a
bachelor's degree. Chavez Deel., #76, ~ 14. Under "Qualifications and Desired Attributes," the
announcement also lists:
•
Minimum three years of experience in the rehabilitation
field working with MR/DD adults;
•
Two years of management experience; or six years in the
field of rehabilitation, social services or a related field,
including personnel supervision, budget development,
program monitoring and evaluation ....
Ex. 2, Johnson Deel., #70, at 2. The announcement fmiher indicates that the "[i]nitial
appointment will be for three months, with an option for extension depending on need." Id.
Page 6 - OPINION AND ORDER
Plaintiff applied for the Lead Worker position, but the OIB did not interview her. Ex. 15,
McGuigan Deel., #73, at 85-86. Rather, the OIB interviewed and ultimately hired Heather
Schoenwald. Schoenwald was an OCB client (she had a vision impahment) who had a
bachelor's degree in social work and a master's degree in clinical counseling. Ex. 3, Declaration
of Tracy J. White ("White Deel."), #69, at 11, 14. Prior to going to school, Schoenwald had
worked as a courtesy clerk at Westwood Thriftway and as a merchandiser and salesperson at
Po1tland Bottling Company. Ex. 17, McGuigan Deel., #73, at 19-20. Prior to being hired as
Lead Worker, Schoenwald did not have payroll experience and had never held a supervisory
position. Ex. 16, McGuigan Deel., #73, at 44; Ex. 17, McGuigan Deel., #73, at 20. Schoenwald
sta1ted at the OIB on July 3, 2012. Ex. 3, White Deel., #69, at 12; Ex. 5, McGuigan Deel., #73,
at 1. Plaintiff and Paschall were responsible for training Schoenwald. Ex. 5, McGuigan Deel.,
#73, at 1; Ex. 17, McGuigan Deel., #73, at 20.
Shortly after Schoenwald stmted, Jones informed plaintiff that she would go back to
perfo1ming Caregiver duties. Caravantes Deel., #74, i! 15. At this time, plaintiff was still subject
to the weight-lifting restrictions due to her pregnancy. Id On July 11, 2012, plaintiff asked
Schoenwald to assist a client in the bathroom. Id
i! 16.
Schoenwald refused, stating that
assisting clients in the bathroom was not pmt of her job description. Id. Consequently, plaintiff
"was forced to carry the client to the bathroom and in the process [she] slipped on urine and
seriously injured [her] back." Id.
After this injmy, plaintiff filed a grievance with Mock, complaining that, among other
things, she did not receive the Lead Worker position and that she suffered an inju1y because she
was forced to assist clients in the bathroom and Schoenwald was not. Id.
Page 7 - OPINION AND ORDER
if 17.
A few days later,
Mock confronted plaintiff about the grievance and, " [a]s a result of this confrontation, [plaintiff!
began to bleed and went to the hospital." Id Plaintiff called Mock from the hospital and left a
message, but Mock did not respond. Id.
At some point, plaintiff filed a workers' compensation claim relating to the back injmy
she suffered while assisting a client in the bathroom. See Ex. 8, McGuigan Deel., #73, at 1.
Although plaintiff wished to return to work with the restriction that she could not cany clients to
the bathroom, Caravantes Deel., #74, ii 18, Jones told the SAIF, the workers' compensation
insurance company, that there was no light-duty work available, Ex. 8, McGuigan Deel., #73,
at 1.
Meanwhile, in early August 2012, Jones sent Schoenwald, who was now doing payroll
duties, an email inquiring about Sauceda's and Orozco's timesheets, noting that the July
timesheets did not have the same amount of "piece rate" work that their timesheets typically had.
Ex. 7, McGuigan Deel., #73, at 1. In the email, Jones requests that Schoenwald "do a little
investigating." Id On August 22, 2012, Jones asked plaintiff about the timesheets. Caravantes
Deel., #74, ii 19. Plaintiff reminded Jones that Jones had agreed to hire Sauceda and Orozco as
on-call maintenance employees. Id Jones also spoke with Paschall regarding Sauceda and
Orozco. Paschall Deel., #75, ii 12. Paschall reminded Jones that Jones had "authorized
[Sauceda's and Orozco's] initial hire in 2008 and that she authorized their change to maintenance
personnel to save on contractor costs." Id. Paschall also told Jones "that it was her depaiiment
who paid these employee and [Paschall] questioned [Jones's] position that from 2010 until 2012
she did not know what these individuals were paid for." Id
On August 28, 2012, Jones sent Mock a draft of a letter addressed to plaintiff, informing
Page 8 - OPINION AND ORDER
plaintiff that the OIB was tenninating her employment because she misrepresented Sauceda's and
Orozco's hours on their timesheets. Ex. 10, McGuigan Deel., #73, at 1-3. This letter was
apparently not sent. Rather, on September 4, 2012, the OIB sent plaintiff a letter info1ming her
of allegations of misconduct and giving her an oppmiunity to appear at a "pre-disciplinary
meeting" on September 14, 2012. Ex. 11, McGuigan Deel., #73, at 1-3. Plaintiff elected to not
attend the meeting and, on September 19, 2012, the OIB sent plaintiff a te1mination letter. Ex. 5,
Johnson Deel., #70, at 1-3. That same date, the OIB also terminated Paschall on the grounds that
she failed to adequately verify Sauceda's and Orozco's hours and that she failed to provide
sufficient monitoring and oversight of plaintiff, pa11icularly in light of the fact that Orozco was
plaintiff's son. Ex. 6, Johnson Deel., #70, at 1-3.
Shmily after plaintiff and Paschall were te1minated, the OIB asked law enforcement to
investigate the matter. Ex. 12, McGuigan Deel., #73, at I. Also after plaintiff was te1minated,
Jones wrote a "memo to file" indicating that, had plaintiff not been te1minated, she would have
been offered a light-duty position with the OIB, with a start date of October 2, 2012. Ex. 9,
McGuigan Deel., #73, at 1.
PROCEDURAL BACKGROUND
Plaintiff filed the instant action on March 1, 2013. See Complaint, # 1. In her second
amended complaint, plaintiff pleads three claims for relief. See Second Amended Complaint,
#22, ifil 5 .1-7 .3. Under Count One, plaintiff alleges that defendants discriminated against her on
the basis of her sex/pregnancy. Id.
iii! 5.1-5.3.
Under Count Two, plaintiff alleges that
defendants discriminated against her on the basis of her race and national origin. Id. iff6. l-6.3.
Finally, under Count Three, plaintiff alleges that she was subjected to a hostile work environment
Page 9 - OPINION AND ORDER
because of her race and national origin. Id
~~
7 .1-7.3.
On July 1, 2014, defendants filed the instant motion for partial summary judgment,
seeking judgment in their favor on Count One of plaintiffs second amended complaint. See
Defendants' Motion for Partial Summmy Judgment, #68. On July 22, 2014, plaintiff filed a
response in opposition to the motion for partial summmy judgment. See Plaintiffs Resistance to
Motion for Partial Summmy Judgment, #72. On August 14, 2014, defendants filed their reply in
support of the motion for partial summmy judgment. See Defendants' Reply in Suppott of
Motion for Partial Summary Judgment, #79. On August 19, 2014, the court heard oral argument
on the motion. The matter is fully submitted and ready for decision.
LEGAL STANDARD
Summary judgment is appropriate ifthe pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, "show[] that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). Summary judgment is not proper if material factual issues exist for
trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
The substantive law governing a claim or defense determines whether a fact is material. See
1\Ioreland v. Las Vegas lvfetro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998). In evaluating a
motion for summmy judgment, the district courts of the United States must draw all reasonable
inferences in favor of the nonmoving party and may neither make credibility detenninations nor
perfo1m any weighing of the evidence. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150 (2000); Lytle v. Household lvfjg., Inc., 494 U.S. 545, 554-55 (1990).
Page 10 - OPINION AND ORDER
DISCUSSION
In the motion for partial summmy judgment, defendants request that the court grant
judgment in their favor on plaintiffs pregnancy-discrimination claim only. Before turning to
defendants' arguments in favor of summary judgment, I will address plaintiffs evidentimy
objection.
I.
Evidentiary Objection
Plaintiff objects to the declaration of Dacia Johnson, which defendants filed in support of
their motion for partial summmy judgment. Plaintiff contends that Johnson, the cunent
Executive Director of the OCB, was not personally involved in the incidents underlying this case
and, because she has no personal knowledge, her declaration merely reflects "what she has been
told by others." Plaintiffs' Resistance to Motion for Partial Summmy Judgment, #72, at 15.
I find plaintiffs objection to be without merit. As defendants note in their reply brief,
Johnson's declaration is, at least in part, "simply a ce1iification that the summary judgment
exhibits [are] true and accurate copies of documents from OIB/OCB's records. She is certainly
qualified to state this as the Director of [the] OCB." Defendants' Reply in Suppmt of Motion for
Partial Summary Judgment, #79, at 2. Moreover, defendants contend that Johnson learned about
some of the events at issue, including the fact that the OIB was hiring a Lead Worker and that
plaintiff and Paschall were terminated for misconduct, during OCB staff meetings. Defendants
submit a second declaration from Johnson to verify that, although she was not the Director of the
OCB during the relevant time period, she was aware of these events. See Second Declaration of
Dacia Johnson, #80. Thus, for the reasons set fmih in defendants' reply brief, I overrule
plaintiffs evidentimy objection.
Page 11 - OPINION AND ORDER
II.
Analysis
Defendants move for summary judgment on Count One of plaintiff's second amended
complaint, which alleges that defendants discriminated against plaintiff because she was
pregnant. Under Title VII, it is an unlawful employment practice for an employer to discriminate
against an employee because of the employee's sex. 42 U.S.C. § 2000e-2(a)(l). The Pregnancy
Discrimination Act, a 1978 amendment to Title VII, "specifies that sex discrimination includes
discriminating on the basis of pregnancy." Cal. Fed Sav. & Loan Ass'n v. Guerra, 479 U.S. 272,
277 (1987); see also 42 U.S.C. § 2000e(k).
A Title VII plaintiff may prove her case through direct evidence of discrimination or,
alternatively, through circumstantial evidence, using the burden-shifting framework established
inlvlcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Lyons v. England, 307 F.3d 1092,
1112 (9th Cir. 2002). Under the lvlcDonnell Douglas burden-shifting framework, the plaintiff
bears the burden of establishing a prima fade case of discrimination. Id The plaintiff's burden
at this stage is minimal and she need not prove discrimination by a preponderance of the
evidence. Id. If the plaintiff is able to establish a prima fade case, a rebuttable presumption of
discrimination arises. Id "The burden of production then shifts to the employer to articulate a
legitimate, nondiscriminat01y reason" for the adverse employment action. Id. (quoting Warren,
58 F.3d at 442) (internal quotation mark omitted). If the employer satisfies this burden, the
burden shifts back to the plaintiff to "demonstrate that the proffered nondiscriminato1y reason is
merely a pretext for discrimination." Id The plaintiff may establish pretext either "(1) indirectly,
by showing that the employer's proffered explanation is unw01ihy of credence because it is
internally inconsistent or otherwise not believable, or (2) directly, by showing that the unlawful
Page 12 - OPINION AND ORDER
discrimination more likely motivated the employer." Id (citation omitted) (internal quotation
marks omitted); see also A1jangrad v. JPlvlorgan Chase Bank, NA., No. 3: 1O-cv-01157-PK,
2012 WL 1189750, at *13 (D. Or. Apr. 9, 2012) (discussing the AkDonnell Douglas burdenshifting framework).
In this case, plaintiff alleges that defendants discriminated against her on the basis of her
pregnancy when they failed to promote her to the Lead Worker position, forced her to cany
clients to the bathroom, and terminated her. I shall consider each theory separately.
A.
Failure to Promote
First, plaintiff alleges that defendants violated Title VII when they failed to promote her
to the Lead Worker position because she was pregnant. To make out a prima fade case of failure
to promote under Title VII, a plaintiff must establish that: (1) she is a member of a protected
class; (2) she applied for and was qualified for an open position; (3) the employer rejected her for
the position; and (4) the employer filled the position with an individual outside of plaintiffs
protected class. See Dominguez-Cuny v. Nev. Transp. Dep't, 424 F.3d 1027, 1037 (9th Cir.
2005). In this case, defendants concede that plaintiff is a member of a protected class, as she was
pregnant at the time she was not selected for the Lead Worker position. Defendants also concede
that they rejected her for the position and that the position was filled by a non-pregnant
individual. Defendants contend, however, that plaintiff cannot establish a prima fade failure-topromote claim because she was not qualified for the Lead Worker position, as she did not have a
bachelor's degree.
Plaintiff responds she was clearly capable of performing the duties of the Lead Worker
position, as she had been perfmming those duties while Paschall was on medical leave. Plaintiff
Page 13 - OPINION AND ORDER
fmiher notes that Paschall, the Director of the OIB, did not have a bachelor's degree but Mock
still hired her for the position in light of her experience. Finally, plaintiff contends that
defendants created the bachelor's degree requirement to prevent plaintiff from obtaining the Lead
Worker position, as evidenced by the fact that Jones changed the job announcement after plaintiff
expressed interest in the job.
A reasonable ju1y could conclude that plaintiff was qualified for the Lead Worker
position. Ordinarily, an individual is "qualified" for a position ifhe or she meets the criteria
specified in the employer's job listing. See Ellis v. Century 21 Dep't Stores, 975 F. Supp. 2d 244,
267-68 (E.D.N.Y. 2013) (collecting cases). In this case, the job announcement lists as a
requirement that the individual have a bachelor's degree6 and it is undisputed that plaintiff does
not satisfy this requirement. Neve1iheless, there is evidence from which a jmy could conclude
that plaintiff was qualified. First, there is evidence that Jones changed the job announcement to
include a requirement that the candidate have a bachelor's degree after plaintiff expressed interest
in the Lead Worker position. Chavez, an OIB employee, states that Jones showed her a copy of
the job announcement prior to posting it on Craigslist and that there was no bachelor's degree
requirement. Plaintiff contends that the job announcement that she saw did not have a bachelor's
degree requirement. Jones admitted that, after plaintiff applied for the position, Jones changed
the job announcement and Chavez states that she later saw the Lead Worker job announcement
6
Plaintiff suggests that defendants may have altered the job announcement to require a
bachelor's degree after plaintiff filed the instant action. There is no suppmi for this assertion. As
set forth below, there is evidence that the initial job posting did not include a bachelor's degree
requirement, but Johnson, in her capacity as cu1Tent Director of the OCB, declares that Exhibit 2
to her declaration is "a true and accurate copy of a Lead Worker Job Announcement for the
[OIB], with a closing date of July 8." Johnson Deel., #70, ii 7.
Page 14 - OPINION AND ORDER
on Craigslist and that, unlike the earlier announcement Jones had shown her, this announcement
required a bachelor's degree.
Second, there is evidence that individuals without a bachelor's degree could adequately
perform the Lead Worker job duties. As plaintiff notes, Paschall, the Director of the OIB and the
individual to whom the Lead Worker was to provide assistance, did not have a bachelor's degree.
See Paschall's Deel., #75,
iJ 1.
Moreover, in Paschall's absence, plaintiff performed many of the
job duties that the Lead Worker would be responsible for perfonning and, as plaintiff notes in her
declaration, "no one expressed any concern to [her] about [her] lack of a Bachelor's Degree."
Caravantes Deel., #74,
iJ 21.
Finally, there is evidence that the OIB hired other employees who did not satisfy the listed
qualifications for their positions. For instance, Mock testified that, although Paschall did not
meet the educational requirements for her position, she was nevertheless hired because she had
relevant experience. See Ex. 16, McGuigan Deel., #73, at 45-46. Likewise, Schoenwald, the
individual the OIB hired to fill the Lead Worker position, did not have any management or
payroll experience, despite the job announcement's requirements that a successful candidate have
either "[t]wo years of management experience" or "six years in the field ofrehabilitation, social
services or a related field, including personnel supervision, budget development, program
monitoring and evaluation." Ex. 2, Johnson Deel., #70, at 2. Given that the OIB hired other
individuals who failed to meet the minimum qualifications listed for their positions, a reasonable
ju1y could conclude that, although plaintiff lacked a bachelor's degree, she was nevertheless
qualified for the Lead Worker position. See Aulicino v. NY. City Dep't ofHomeless Servs., 580
F.3d 73, 81 (2d Cir. 2009) (concluding that, although the plaintiff arguably did not meet the
Page 15 - OPINION AND ORDER
qualifications listed in the job posting, a rational jmy could nevertheless find the plaintiff
qualified, as there was evidence that the employer hired other employees who did not meet the
qualifications in the job posting).
In light of the above, I find that plaintiff has established a prima facie failure-to-promote
claim and, under the lYfcDonnell Douglas burden-shifting framework, the burden shifts to
defendants to proffer a legitimate, nondiscriminatory reason for failing to promote plaintiff.
Defendants contend that there are two legitimate reasons that plaintiff was not offered the
promotion. First, defendants argue that offering the position to Schoenwald was consistent with
the OCB and the OIB's mission, as Schoenwald was a visually impaired client at the OCB.
Second, defendants contend that, because the Lead Worker position was originally adve1iised as
a temporary position that was "pmiially designed to cover for plaintiff," as she had frequent
doctors' appointments, it would be illogical for defendants to hire plaintiff to fill the position.
Defendants' Reply in Supp01i of Motion for Pmiial Summmy Judgment, #79, at 5.
Because defendants have proffered nondiscriminatory reasons for the adverse
employment action, the burden shifts back to plaintiff to show that the reasons are merely a
pretext for discrimination. In her resistance, plaintiff argues that she meets this burden because
Schoenwald had "no relevant experience whatsoever" and that, if the Lead Worker position were
trnly designed to support plaintiff, the Lead Worker should have had to report to plaintiff, "and
not the other way around." Plaintiff's Resistance to Motion for Partial Summmy Judgment, #72,
at 22. For the reasons stated in plaintiff's resistance, I find that there are genuine issues of
material fact with regard to whether defendants' proffered explanation is a pretext for
discrimination. Although hiring Schoenwald may have been consistent with the OCB and the
Page 16- OPINION AND ORDER
OIB's mission, defendants do not produce any evidence that this factor was central to their
decision to hire Schoenwald rather than plaintiff. Moreover, although defendants characterize
the Lead Worker position as a short-term position that would, in pmi, provide supp01i for
plaintiff, it was also a supervisory position and plaintiff was required to repo1i to the Lead
Worker. Defendants fail to explain why they could not have promoted plaintiff to the Lead
Worker position and hired someone else to provide backup supp01i as needed. See Dominguez-
Cuny, 424 F.3d at 1037 (noting that a plaintiff may show pretext "by showing that the
employer's proffered explanation is unw01ihy of credence because it is inconsistent or otherwise
not believable").
In light of the foregoing, I find that defendants are not entitled to summmy judgment on
Count One of the second amended complaint, insofar as that count alleges that defendants failed
to promote plaintiff because she was pregnant.
B.
Forced to Assist Clients in Bathroom
Plaintiff also contends that defendants violated Title VII when they forced her to assist
clients in the bathroom. Plaintiff characterizes this theory as a disparate-treatment claim. She
argues that, on the date that she was injured while helping a client to the bathroom, she was the
only employee qualified to be a Lead Worker. Despite this fact, plaintiff notes that she was
required to assist clients in the bathroom and Schoenwald, a non-pregnant individual, was not
required to assist clients in the bathroom. Plaintiff suggests that the inju1y she sustained in July
2012 was a result of this discriminatory treatment.
I find plaintiff's argument to be without merit. Although plaintiff took on many
additional supervis01y duties while Paschall was out, the undisputed facts show that plaintiff held
Page 17 - OPINION AND ORDER
the job title of Caregiver in July 2012. 7 As part of her duties as Caregiver, plaintiff was required
to assist clients to the bathroom. See Caravantes Deel., #74, ~ 5 ("One of my specific job duties
involved assisting clients in wheelchairs with the restroom."). Although plaintiff suggests that
there is evidence of discrimination because defendants did not require Schoenwald to assist
clients in the bathroom, plaintiff fails to acknowledge that Schoenwald held a different position.
During her deposition, Schoenwald testified that assisting clients in the bathroom was not part of
her job duties as Lead Worker. Ex. 17, McGuigan Deel., #73, at 46. In an email to Mock, Jones
also stated that "bathrooming duties" were not pmi of Schoenwald's job. Ex. 6, McGuigan Deel.,
#73, at I.
Thus, in light of the foregoing, I find that plaintiffs disparate-treatment claim, as
miiculated in her brief and at oral argument, is without merit. Accordingly, defendants are
entitled to summmy judgment in their favor on the issue of whether they violated Title VII by
forcing plaintiff to assist clients in the bathroom.
C.
Termination
Finally, plaintiff claims that defendants violated Title VII by te1minating her because she
was pregnant. To establish a prima facie case of wrongful termination under Title VII, a plaintiff
must show that
7
During oral argument, plaintiffs counsel argued that, pursuant to the OIB's Personnel
Change Notice, plaintiffs job title was changed to Lead Worker in October 2011, when she
received a 5% increase in pay. Plaintiffs counsel fu1iher argued that the OIB never stripped
plaintiff of that title and, thus, in July 2012, she held the title of Lead Worker. The evidence in
the record does not support this argument. First, the Personnel Change Notice to which
plaintiffs counsel refers provides only that plaintiff was to "assume lead worker duties" during
Paschall's absence. Ex. 3, McGuigan Deel., #73, at 1. Second, in plaintiffs declaration, she
states that, on July 9, 2012, Jones "reassigned" plaintiff to Caregiver. Caravantes Deel., #74,
~ 15. Thus, at the time that she sustained her injury, plaintiffs job title was Caregiver.
Page 18 - OPINION AND ORDER
(1) she [was] a member of a protected class; (2) she was
perfonning her job in a satisfact01y manner; (3) she suffered an
adverse employment action; and (4) ... similarly situated
individuals outside her protected class were treated more favorably,
or other circumstances sunounding the adverse employment action
give rise to an inference of discrimination.
Dannenbring v. Wynn Las Vegas, LLC, No. 2:12-CV-00007 JCM (VCF), 2014 WL 518759, at
*3 (D. Nev. Feb. 7, 2014); see also Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003);
Vi/liarimo v. Aloha Island Air, Inc., 281F.3d1054, 1062 (9th Cir. 2002); Nidds v. Schindler
Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996). In this case, defendants concede that plaintiff
was a member of a protected class and that she suffered an adverse employment action.
Defendants argue, however, that plaintiff cannot satisfy the second element of her prima facie
case, as she was discharged for alleged misconduct. Defendants fmiher contend that plaintiff
cannot satisfy the fomih element of her prima facie case. Specifically, defendants note that
plaintiff cannot demonstrate that similarly situated individuals were treated differently. Like
plaintiff, Paschall was accused of committing timecard fraud. Like plaintiff, Paschall was
terminated for the alleged timecard fraud. Unlike plaintiff, however, there is no evidence in the
record that Paschall was pregnant.
Plaintiff responds that there is no evidence that she committed timecard fraud; rather,
Jones approved hiring Sauceda and Orozco as maintenance workers and Jones's department
approved Sauceda's and Orozco's hours for over two years. Thus, plaintiff argues that similarly
situated individuals were treated differently-that is, despite the facts that Jones approved hiring
Orozco and Sauceda and that her depmiment approved their timecards, Jones was not fired along
with Paschall and plaintiff.
Page 19 - OPINION AND ORDER
As an initial matter, I need not decide whether plaintiff actually committed timecard
fraud. Defendants conceded at oral argument that there are genuine issues of material fact
precluding summary judgment on this issue. Rather, the thrust of defendants' argument is that
there are no facts suggesting that plaintiffs termination was a result of her pregnancy because
Paschall was fired at the same time for the same reason. Plaintiff attempts to overcome this
argument by suggesting that Jones was treated differently. While I find plaintiffs argument to be
without merit, I nevertheless find that plaintiff has presented prima facie evidence that she was
terminated on the basis of her pregnancy. Based on the evidence in the record, a jury could
conclude that Paschall was really tenninated because she was taking frequent leave on account of
her health issues. Plaintiff was also taking frequent leave prior to her te1mination, as she had
doctors' appointments eve1y two weeks due to her high-risk pregnancy. Moreover, plaintiff was
scheduled to go on maternity leave just a few months after she was te1minated. Finally, if the
ju1y were to find that the OIB's decision not to promote plaintiff to Lead Worker was motivated
by her pregnancy, the jmy could reasonably believe that the OIB's decision to terminate plaintiff
was likewise motivated by the fact that she was pregnant. Thus, while plaintiff has not shown
that similarly situated people were treated differently, she has pointed to facts giving rise to a
reasonable inference of discrimination. See Dannenbring, 2014 WL 518759, at *3 (finding that
the plaintiff established a prima facie case of pregnancy discrimination where she info1med her
employer that she was pregnant and "was te1minated just weeks before her anticipated due date").
Because plaintiff has established a prima facie case, the burden shifts to defendants to
articulate a legitimate, nondiscriminato1y reason for plaintiffs termination. Defendants contend
that they have satisfied this burden. Specifically, defendants argue that, regardless of whether
Page 20 - OPINION AND ORDER
plaintiff actually committed timecard fraud, defendants believed that she did and, thus, they had a
nondiscriminato1y reason for plaintiffs te1mination. Plaintiff responds that defendants' proffered
reason for te1minating plaintiff is "simply unbelievable." Plaintiffs' Resistance to Motion for
Partial Summary Judgment, #72, at 24. Specifically, plaintiff alleges that Jones approved paying
Sauceda and Orozco at a flat rate and her department approved their paychecks for years. Thus,
plaintiff maintains that Jones did not believe plaintiff committed fraud but, rather, leveled this
allegation against plaintiff so that Jones could recommend her termination. In light of plaintiffs
arguments, I find that plaintiff has canied her burden of showing that there are genuine issues of
material fact with regard to whether defendants' proffered explanation is a pretext for
discrimination.
Accordingly, defendants' motion for summmy judgment should be denied insofar as it
requests judgment in defendants' favor on plaintiffs discriminato1y-discharge claim.
CONCLUSION
For the reasons set forth above, defendants' motion for pmiial summary judgment (#68) is
granted in part and denied in pmi.
Dated this 22nd day of August, 2014.
onorable Paul Papak
United States Magistrate Judge
Page 21 - OPINION AND ORDER
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