Goldsby v. Safeway Inc.

Filing 51

Opinion and Order - Defendant's motion to strike 38 is GRANTED in part. Defendant's motion for summary judgment 22 is DENIED as to Plaintiff's discrimination claim; DENIED as to Plaintiff's hostile work environment claim; GRANTED in part as to Plaintiff's retaliation claim; and DENIED as to Plaintiffs FMLA/OFLA claims. Signed on 1/4/2018 by Judge Marco A. Hernandez. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

TIFFANY GOLDSBY,
Plaintiff,
v.
SAFEWAY INC., dba SAFEWAY #1269,
a Delaware corporation,
Defendant.

Robert K. Meyer
2501 SW First Ave., Suite 230
Portland, OR 97201
Attorney for Plaintiff

1- OPINION & ORDER

No. 3:16-cv-02056-HZ
OPINION & ORDER

David G. Hosenpud
William E. Weiner
Lane Powell PC
601 SW Second Ave., Suite 2100
Portland, OR 97204
Attorneys for Defendant

HERNÁNDEZ, District Judge:
Plaintiff Tiffany Goldsby brings this employment discrimination action against
Defendant Safeway, Inc. (“Safeway”). Before the Court are Defendant’s motion for summary
judgment [22] and motion to strike portions of Plaintiff’s evidence offered in response to
Defendants motion for summary judgment [38]. Plaintiff alleges ten causes of action under
Oregon state and federal law which can be grouped into four claims: (1) discrimination based on
race, gender, and sexual orientation under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e
et. seq., 42 U.S.C. § 1981, and Or. Rev. Stat. (“O.R.S.”) § 659A.030; (2) hostile work
environment on the basis of her race, gender, and sexual orientation in violation of Title VII and
O.R.S. 659A.030; (3) retaliation under Title VII and O.R.S. 659A.030; and (4) retaliation and/or
interference with protected leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2601 et. seq., and the Oregon Family Leave Act (“OFLA”), O.R.S. 659A.183. Defendant
moves for summary judgment on all of Plaintiff’s claims. The Court rules as follows: summary
judgment as to (1) is DENIED; (2) is DENIED; (3) is GRANTED in part; and (4) is DENIED.
Additionally, Defendant’s motion to strike is GRANTED in part.
BACKGROUND
Plaintiff is an African-American woman and a self-identified lesbian. Pl.’s Decl. ¶ 2, ECF
30. On August 24, 2006, Defendant hired Plaintiff to work on the night crew at Store #1269 in
Northeast Portland. Id. at ¶ 3. Four years later, Plaintiff internally transferred to work as a

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produce clerk. Id. at ¶ 4; Compl. ¶ 11, ECF 1. On July 13, 2014, Lori Young became the Store
Director at Store #1269. Young Decl. ¶ 3, ECF 23. In the first two months after Young’s arrival,
Plaintiff became responsible for managing the produce department. Id. at ¶ 4. During that same
period, Young made multiple comments to Plaintiff concerning her race and sexual orientation.
In August of 2014, after Young learned about Plaintiff’s shoe collection, she said that “[i]t must
be a black thing!” Pl.’s Decl. ¶ 8. In September of 2014, in response to Plaintiff telling Young
that she did not want to be a produce manager, Young said “I thought dykes, gays were a lot
stronger and can take on anything.” Id. at ¶ 9. Also in September of 2014, when Plaintiff told
Young that she would finish certain tasks before working on projects assigned by Young, Young
called Plaintiff a “lazy black bitch.” Id. at ¶ 10.
Other Safeway supervisors and employees also witnessed Young making discriminatory
comments about Plaintiff. Plaintiff’s supervisor Derek Grimm overheard Young complain that
Plaintiff was a “typical black working the system.” Meyer Decl. ¶ 3, Ex. 2 (Grimm Depo.) 55:9–
56:2, 16–18, ECF 29. Grimm also observed that Young would discipline Plaintiff more than
other employees for attendance issues. Grimm Depo. 65:23–66:13; 68:17–20. In addition, Joelle
Pohan, Plaintiff’s co-worker who had supervisory authority over Plaintiff, heard Young refer to
Plaintiff as a “butch” and “butch dyke” and heard Young call Plaintiff a “butch dyke bitch.”
Pohan Decl. ¶ 8, ECF 31.
Plaintiff requested leave based on her medical condition in October of 2014. Pl.’s Decl.
¶ 13. Plaintiff’s therapist faxed the leave paperwork to Young. Id. Young denied receiving the
paperwork. Id. Plaintiff then put her paperwork on Young’s desk in Pohan’s presence and took a
photograph of it. Id. at ¶ 14; Pohan Decl. ¶ 14. Plaintiff testified Young denied receiving that
paperwork as well. Pl.’s Decl. ¶ 14. Pohan testified that she later observed Plaintiff’s leave

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paperwork in Young’s trash bin. Pohan Decl. ¶ 14. When Pohan asked Young about the
paperwork, Young responded “Tiffany doesn’t matter.” Id. Young later told Plaintiff that she had
not received her leave paperwork; however, when Plaintiff informed Young of the photograph,
Young found the paperwork. Pl.’s Decl. ¶14. Plaintiff was granted leave from October 7 to
November 15, 2014. Young Decl. ¶ 8.
While on leave, Plaintiff and Young exchanged work-related text messages. Id. at ¶¶ 9,
12, Ex. 1; Pl.’s Decl. ¶ 16. In one of those messages, Young informed Plaintiff that she was
entitled to twenty-four hours of paid leave, not the thirty-two hours that she had requested.
Young Decl. ¶ 9. In another message, Young asked Plaintiff if she was going to extend her leave.
Id. at ¶ 12. Also while on leave, Plaintiff obtained two jobs with different employers and twice
reported Young’s harassment to Defendant’s human resources (“HR”) department. Hosenpud
Decl. ¶¶ 4–5, 8, ECF 26; Pl.’s Decl. ¶¶ 11, 16.
When Plaintiff returned from leave on November 16, Young transferred her from the
produce department to the night crew. The parties provide competing explanations for the
transfer. Defendant contends that Plaintiff requested the transfer in order to accommodate her
two other jobs. Young Decl. ¶¶ 13–14. Plaintiff explains that Young offered the transfer to her
because Young needed Plaintiff on the night crew and could give her more hours. Pl.’s Decl.
¶ 18. In any event, Plaintiff was transferred and her schedule on night crew included fewer
working hours than her pre-leave position. Young Decl. ¶¶ 14–15; Pl.’s Decl. ¶ 20. Plaintiff
requested to be reinstated to her produce position but Young denied the request because the
position had been filled. Young Decl. ¶ 18; Pl.’s Decl. ¶ 20. On multiple occasions, both during
and after Plaintiff’s leave, Plaintiff asked Young if she could be transferred to another store. Pl.’s
Decl. ¶¶ 17, 25. Young denied each of Plaintiff’s requests, explaining that Safeway stores in the

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region were undergoing a transfer freeze due a federal antitrust review of the company’s merger
with Albertsons. Kiddle Decl. ¶ 10, ECF 24; Young Decl. ¶¶ 16–17.
In December of 2014, Plaintiff reported to her union representative, Lucy Carrier, that
she was not getting the hours she was entitled to and that Young was discriminating against her.
Pl.’s Decl. ¶ 24; Yoo Decl. ¶ 4, ECF 25. Carrier relayed Plaintiff’s complaints to Mona Yoo,
Defendant’s employee relations manager. Yoo Decl. ¶¶ 4, 6. Yoo, in turn, reported Plaintiff’s
discrimination complaint to Young on January 2, 2015. Young Supp. Decl. ¶ 5, Ex. 23, ECF 35.
Three days later, on January 5, 2015, Young reported to Yoo that she was going to issue Plaintiff
a written corrective action notice for attendance violations. Meyer Decl. ¶ 5, Ex. 4 (Yoo Depo.)
25:18–26:9. On January 20, 2015, Young issued Plaintiff a corrective action notice. Pl.’s Decl.
¶ 28, Ex. 3.
On January 30, 2015, Plaintiff requested medical leave due to severe stress, anxiety
causing chest pains, and depression due to Young’s harassment and discrimination. Pl.’s Decl.
¶ 30; Meyer Decl. ¶ 12, Ex. 12. Plaintiff was granted leave from January 28 through February
22, 2015. Kiddle Decl. ¶ 15.When Plaintiff returned from leave, her hours were increased to fulltime. Id. In June of 2015, Store #1269 was closed and Plaintiff was transferred to another
Safeway as a manager in the frozen department. Pl.’s Depo. 47:10–11.
On July 30, 2015, Plaintiff filed a complaint with the Bureau of Labor and Industries
(“BOLI”) alleging unlawful discrimination based on race and sexual orientation, retaliation, and
interference with medical leave. Meyer Decl. ¶ 9, Ex. 8. BOLI issued a Notice of Substantial
Evidence Determination on August 1, 2016. Id. Plaintiff filed this lawsuit on October 26, 2016.
//
//

5- OPINION & ORDER

MOTION TO STRIKE
Defendant separately filed a motion to strike portions of Plaintiff’s evidence offered in
response to Defendant’s motion for summary judgment. See Mot. to Strike, ECF 38.1 A district
court can only consider admissible evidence when reviewing a motion for summary judgment.
Fed. R. Civ. P. 56(e). “At the summary judgment stage, we do not focus on the admissibility of
the evidence’s form. We instead focus on the admissibility of its contents.” Fraser v. Goodale,
342 F.3d 1032, 1036–37 (9th Cir. 2003) (citing Block v. City of Los Angeles, 253 F.3d 410, 418–
19 (9th Cir. 2001) (“To survive summary judgment, a party does not necessarily have to produce
evidence in a form that would be admissible at trial, as long as the party satisfies the
requirements of Federal Rule of Civil Procedure 56.”). Furthermore, “hearsay evidence produced
in an affidavit may be considered on summary judgment if the declarant could later present
evidence through direct testimony.” Id. (citing J.F. Feeser, Inc. v. Serv–A–Portion, Inc., 909
F.2d 1524, 1542 (3d Cir. 1990)). At summary judgment, the threshold for personal knowledge is
“particularly low” because “all ‘justifiable inferences’ must be drawn in favor of the nonmoving
party.” Shultz v. Wells Fargo Bank, Nat. Ass’n, 970 F. Supp. 2d 1039, 1066 (D. Or. 2013)
(quoting Strong v. Valdez Fine Foods, 724 F.3d 1042, 1045 (9th Cir. 2013)).
Defendant moves to strike portions of Plaintiff’s former coworker Robert Meyer’s
testimony and supporting exhibits, and portions of Plaintiff’s and Alisa Pohan’s declarations. See
Mot. to Strike 2. In particular, Defendant moves to strike evidence from five sources: (1)
Plaintiff’s handwritten notes; (2) portions of Grimm’s declaration; (3) BOLI’s notice of

1

Under Local Rule 56-1 and Rule 56 of the Federal Rules of Civil Procedure, a party may assert evidentiary
objections in its response or reply memorandum rather than filing a separate motion to strike. See Fed. R. Civ. P.
56(c)(2) (2010 Advisory Committee Notes) (“There is no need to make a separate motion to strike.”).

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substantial evidence determination; (4) portions of Plaintiff’s declaration; and (5) portions of
Pohan’s declaration.
The motion is denied with respect to Plaintiff’s handwritten notes. Defendant contends
that the notes are hearsay and lack foundation. Plaintiff’s notes, however, are admissible as prior
consistent statements used to rebut an express charge by Defendant that her declaration is
inconsistent with her deposition. See Fed. R. Evid. 801(d)(1)(B)(i). In addition, the evidence may
be admissible to show Plaintiff’s then-existing state of mind and emotional condition which is
relevant to the subjective component of her hostile work environment claim. See Fed. R. Evid.
803(3). Assuming the testimony in its current form is not admissible at trial, the Court may
consider it on summary judgment because Plaintiff could later present the evidence through
direct testimony. Fraser, 342 F.3d at 1036–37.
With respect to Grimm’s testimony, the motion is granted in part to the extent of
Plaintiff’s concessions. Otherwise, the motion is denied. The Court’s summary judgment
determinations did not rely on the portions of Grimm’s testimony to which Defendant objected.
Similarly, the statements contained within BOLI’s notice were cumulative with other testimony
already before the Court. Accordingly, the Court did not rely on the contents of BOLI’s notice in
making any of its summary judgment determinations. Therefore, Defendant’s motion to strike
that evidence is denied as well.
Next, Defendant moves the Court to strike portions of Plaintiff’s declaration. According
to Defendant, testimony in Plaintiff’s declaration should be stricken under the “sham affidavit”
rule because it is inconsistent with her prior deposition testimony. “This sham affidavit rule
prevents ‘a party who has been examined at length on deposition’ from ‘rais[ing] an issue of fact
simply by submitting an affidavit contradicting his own prior testimony,’ which ‘would greatly

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diminish the utility of summary judgment as a procedure for screening out sham issues of fact.’”
Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (quoting Kennedy v. Allied Mut. Ins. Co.,
952 F.2d 262, 266 (9th Cir. 1991)). In Yeager, the district court found that:
[W]here the deponent remembers almost nothing about the events
central to the case during his deposition, but suddenly recalls those
events with perfect clarity in his declaration in opposition to
summary judgment without any credible explanation as to how his
recollection was refreshed, the disparity between the affidavit and
deposition is so extreme that the court must regard the differences
between the two as contradictions.
Yeager v. Bowlin, No. CIV. 2:08-102 WBS JFM, 2010 WL 95242, at *5 (E.D. Cal. Jan. 6, 2010).
Plaintiff answered “I don’t remember” or with words to that effect more than 380 times at
her deposition. Hosenpud Supp. Decl. ¶ 14, Ex. 38, ECF 37. Plaintiff’s declaration, by contrast,
contains detailed testimony regarding events that Plaintiff testified she did not remember at her
deposition. The Court finds that Plaintiff’s testimony cannot be struck under the “sham affidavit”
rule. The majority of the testimony to which Defendant objects is consistent with her prior
statements in her handwritten notes and her BOLI complaint. Pl.’s Supp. Decl. ¶¶ 1–2, Exs. 1, 2,
ECF 40. Plaintiff’s notes were written contemporaneously with the events that they described
and Plaintiff’s BOLI charge was filed on July 30, 2015. Id. Plaintiff’s deposition was taken
approximately twenty-two months later on May 25, 2017. Hosenpud Supp. Decl. Ex. 38.
Plaintiff’s handwritten notes and BOLI complaint were introduced at her deposition and were
used to refresh her recollection to create her declaration. Pl.’s Depo. 128:19–147:23; Pl.’s Supp.
Decl. ¶¶ 2–3. Based on this timeline and the record, the Court finds that Plaintiff has provided a
credible explanation for the disparity between her deposition testimony and declaration.
Defendant also objects to portions of Plaintiff’s declaration on other grounds. The motion
is granted as to ¶¶ 16, 30, and 31 of Plaintiff’s declaration for the reasons Defendant identified.

8- OPINION & ORDER

The motion is denied as to ¶¶ 7 and 10 because that testimony was based on Plaintiff’s personal
knowledge and her interactions with Young. That testimony was also relevant to the subjective
component of Plaintiff’s hostile work environment claim.
Finally, Defendant moves to strike portions of Pohan’s declaration. The motion is granted
to the extent of Plaintiff’s concessions. Additionally, ¶¶ 9, 12, 16, and 26 are stricken as hearsay
and for the reasons that Defendant identified. The motion is otherwise denied because the
testimony either non-hearsay, fell into an exception to hearsay, and was sufficiently based on
Pohan’s personal knowledge.
SUMMARY JUDGMENT STANDARD
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 former 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 marks omitted). The nonmoving party must go beyond the
pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218
(9th Cir. 2007) (citing Celotex, 477 U.S. at 324). The court draws inferences from the facts in the

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light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d
1108, 1112 (9th Cir. 2011).
DISCUSSION
Defendant moves for summary judgment on each of Plaintiff’s four claims as outlined
above. First, Defendant argues that Plaintiff’s discrimination claim fails because Plaintiff cannot
establish that Defendant’s legitimate nondiscriminatory reasons for the alleged adverse
employment actions were pretextual. Second, Defendant argues that Plaintiff cannot make out a
prima facie case for her hostile work environment claim and that the claim is barred by the
Faragher/Ellerth affirmative defense. Third, Defendant argues that Plaintiff cannot establish a
prima facie case for her retaliation claim nor can she show that Defendant’s non-retaliatory
reasons for the alleged adverse employment actions were pretextual. Lastly, Defendant argues
that Plaintif’s FMLA/OFLA claims fail as a matter of law.
I.

Discrimination
The parties dispute whether Plaintiff can show that Defendant’s proffered reasons for the

alleged adverse employment actions were mere pretext for unlawful discrimination. A prima
facie case for discrimination claims can be established under the McDonnell Douglas burdenshifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). First, the
plaintiff must show that she: (1) belongs to a protected class: (2) was performing according to
her employer’s legitimate expectations; (3) has suffered an adverse employment action; and (4)
“similarly situated employees were treated more favorably, or other circumstances surrounding
the adverse employment action give rise to an inference of discrimination.” Reynaga v. Roseburg
Forest Prods., 847 F.3d 678, 690–91 (9th Cir. 2017) (citing Hawn, 615 F.3d at 1156). Once the
plaintiff has made out her prima facie case, “the burden shifts to the defendant to provide a

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legitimate, non-discriminatory reason for the adverse employment action.” Id. (citing Hawn, 615
F.3d at 1155). “If the defendant meets this burden, then the plaintiff ‘must then raise a triable
issue of material fact as to whether the defendant’s proffered reasons . . . are mere pretext for
unlawful discrimination.’” Id. (quoting Hawn, 615 F.3d at 1155).
Defendant does not dispute whether Plaintiff satisfied the elements of her prima facie
case. Rather, according to Defendant, Plaintiff has failed to show that Defendant’s nondiscriminatory reasons for the adverse employment actions were pretext for discrimination.
Pretext can be established “either directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing that the employer’s proffered
explanation is unworthy of credence.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th
Cir. 1998), as amended (Aug. 11, 1998) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 256 (1981)). A plaintiff “need produce very little evidence of discriminatory motive to
raise a genuine issue of material fact.” Id. (quoting Lindahl v. Air France, 930 F.2d 1434, 1438
(9th Cir. 1991)). “When the plaintiff offers direct evidence of discriminatory motive, a triable
issue as to the actual motivation of the employer is created even if the evidence is not
substantial.” Id. When the plaintiff offers indirect evidence, by contrast, “the plaintiff must
produce ‘specific, substantial evidence of pretext.’” Id. (quoting Bradley v. Harcourt, Brace &
Co., 104 F.3d 267, 270 (9th Cir. 1996)).
The Court finds that Defendant has carried its burden under the second step of the
McDonnell Douglas framework by producing legitimate non-discriminatory reasons for each
alleged adverse employment action. First, Defendant explained that Young requested the transfer
to the night crew and that her hours were reduced based on her limited availability, seniority, and
the store’s business needs. Young Decl. ¶ 15. Second, Defendant denied Plaintiff’s transfer

11- OPINION & ORDER

request because of Safeway’s region-wide transfer freeze. Id. at ¶¶ 16–17. Third, Defendant
issued Plaintiff a written corrective action notice in January of 2015 due to her repeated
attendance policy violations. Id. at ¶¶ 19–20.
When viewing the facts in the light most favorable to Plaintiff and drawing all reasonable
inferences in her favor, the Court concludes that Plaintiff has produced direct evidence of
discriminatory motive sufficient to survive summary judgment. In other words, Plaintiff has
created a triable issue as to whether Defendant’s proffered reasons were pretextual. For example,
Plaintiff testified that Young called her a “lazy black bitch.” Pl’s Depo. 45:13–46:1; Pl.’s Decl.
¶ 10. In addition, Plaintiff claims that after Young learned about Plaintiff’s shoe collection she
stated: “It must be a black thing!” Pl.’s Decl. ¶ 8. Grimm heard Young complain that Plaintiff
was a “typical black working the system” and observed that Young would discipline Plaintiff
more for attendance issues than other employees. Grimm Depo. 55:9–56:2, 16–18; 65:23–66:13;
68:17–20. Pohan heard Young call Plaintiff a “butch,” “butch dyke,” and “butch dyke bitch.”
Pohan Decl. ¶ 8.
In Godwin, the Ninth Circuit recognized that similar comments constituted direct
evidence of discriminatory animus sufficient to create a triable issue as to pretext.
As we said in Lindahl, it need be “very little.” Lindahl, 930 F.2d at
1438 (direct evidence of sexual stereotyping where employer
believed that the female candidates get “nervous” and “easily
upset”); see also Cordova, 124 F.3d at 1150 (direct evidence of
race discrimination where employer referred to a Mexican–
American employee as a “dumb Mexican.”); Sischo–Nownejad,
934 F.2d at 1111 (direct evidence of sex stereotyping where
employee referred to female plaintiff as “an old warhorse” and to
her students as “little old ladies”).

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150 F.3d at 1221–22. The record in this case contains direct evidence of discriminatory animus
towards African-Americans and lesbians. Accordingly, Plaintiff’s has sufficiently shown pretext
and Defendant’s motion for summary judgment on her discrimination claim is denied.
II.

Hostile Work Environment
Next, Defendant moves for summary judgment on Plaintiff’s hostile work environment

claim on two grounds. First, Defendant argues that Plaintiff cannot show that Defendant’s
conduct was sufficiently severe or pervasive to alter the conditions of her employment. Second,
Defendant contends that the Faragher/Ellerth affirmative defense bars this claim.
Hostile work environment claims require that the plaintiff show that her “workplace
[was] permeated with discriminatory intimidation . . . that [was] sufficiently severe or pervasive
to alter the conditions of [her] employment and create an abusive working environment.” Brooks
v. City of San Mateo, 229 F.3d 917, 923–24 (9th Cir. 2000) (quoting Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993)). “The working environment must both subjectively and objectively
be perceived as abusive.” Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995). Courts
look at the totality of the circumstances when considering hostile work environment claims.
Those circumstances include the “frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employees work performance.” Faragher v. City of Boca Raton,
524 U.S. 775, 787–88 (1998) (quoting Harris, 510 U.S. at 23). It is well established that “simple
teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment.’” Id. at 788 (internal
citations and quotation marks omitted).

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Defendant argues that Plaintiff’s hostile work environment claim is based on only three
isolated comments that Young made to Plaintiff, including: “It must be a black thing”; “I thought
dykes, gays were a lot stronger and can take on anything”; and “lazy black bitch.” Pl.’s Decl.
¶¶ 8–10. By contrast, Plaintiff relies on comments Young made outside of her presence to
Grimm and Pohan to support her claim. The harassing comments need not be directed at Plaintiff
in order to create a hostile work environment. See Monteiro v. Tempe Union High Sch. Dist., 158
F.3d 1022, 1034 (9th Cir. 1998). Neither party raises the issue of whether Plaintiff was aware of
Young’s comments made outside of her presence. However, it would be reasonable to infer from
the declarations and deposition testimony of Plaintiff, Grimm, and Pohan that Plaintiff was
aware of Young’s comments. Accordingly, it is proper for the Court to consider Young’s
comments made outside of Plaintiff’s presence as acts contributing to a hostile work
environment.
The evidence, when viewed in its entirety and in the light most favorable to Plaintiff, is
sufficient to support her hostile work environment claim. In addition to the three comments that
Defendant identified, Pohan testified that Young also made derogatory comments about Plaintiff
such as “butch dyke bitch” and complained about Plaintiff “countless times, referring to her as
‘lazy’ or a ‘lazy bitch’ or ‘crazy bitch.’” Pohan Decl. ¶¶ 8, 15. Grimm also testified that over a
period of six months he observed Young showing a “special dislike” for Plaintiff. Meyer Decl.
Ex. 2, (Grimm Decl.) ¶ 6. For example, Young referred to Plaintiff as “bitch”, “worthless” and as
being a “typical lazy black, working the system.” Grimm Decl. ¶ 6. Under the totality of the
circumstances, a reasonable factfinder could conclude that someone of Plaintiff’s protected
classes would find such conduct objectively abusive.

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Defendant also argues that the Faragher/Ellerth affirmative defense shields it from
liability. Under this defense an employer may avoid liability where it can show that it exercised
reasonable care to prevent or correct the harassing behavior and that the plaintiff unreasonably
failed to take advantage of the preventative or corrective opportunities provided by the employer.
Faragher, 524 U.S. at 807; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 745 (1998). “An
employer is subject to vicarious liability to a victimized employee for an actionable hostile
environment created by a supervisor with immediate (or successively higher) authority over the
employee.” Ellerth, 524 U.S. at 745. “No affirmative defense is available, however, when the
supervisor's harassment culminates in a tangible employment action, such as discharge,
demotion, or undesirable reassignment.” Id.
Under Faragher/Ellerth, when an employee has been subjected to
an unlawful “tangible employment action” by a supervisor, the
employer may be held liable without more; when the employee has
been unlawfully harassed, but there has been no “tangible
employment action,” the employer may avoid liability by proving
the defense of “reasonable care.”
Holly D. v. California Inst. of Tech., 339 F.3d 1158, 1167 (9th Cir. 2003). “A tangible
employment action constitutes a significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” Ellerth, 524 U.S. at 761. “A tangible employment
action in most cases inflicts direct economic harm.” Id. at 762.
Defendant contends that: (1) it took no tangible employment action against Plaintiff; (2)
it exercised reasonable care to prevent and/or correct harassment; and (3) Plaintiff unreasonably
failed to take advantage of the preventative or corrective opportunities.
In this case, Young was Plaintiff’s supervisor and the parties dispute whether Young’s
harassment culminated in a tangible employment action. Specifically, the parties disagree about

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whether Plaintiff’s transfer to the night crew involved “significantly different responsibilities” or
a “significant change in benefits.” Id. at 761. Plaintiff contends that her hours were significantly
reduced. Defendant, by contrast, maintains that the reduction in hours was offset by Plaintiff’s
other employment. After Plaintiff’s other employment ended, however, Young continued to
assign Plaintiff less hours than before her medical leave. Pl.’s Decl. ¶ 20, Ex. 2. The parties have
produced competing narratives explaining why Plaintiff’s hours on the night crew were reduced.
When viewing this record in the light most favorable to Plaintiff, the Court concludes that the
parties have created a genuine factual dispute regarding whether Plaintiff suffered an adverse
employment action. Accordingly, Defendant has not demonstrated that it is entitled to summary
judgment on Plaintiff’s hostile work environment claim based on the Faragher/Ellerth
affirmative defense.
III.

Retaliation
Plaintiff claims that Defendant retaliated against her for engaging in protected activity,

including two reports she made to Defendant’s HR department in October and/or November of
2014 and for a report Plaintiff also made to her union representative in December of 2014. As
discussed above, Plaintiff argues that Defendant took three adverse employment actions against
her. First, Young transferred Plaintiff to night crew and reduced her hours. Second, Young
refused Plaintiff’s request to transfer to another store. Third, Young issued an unwarranted
written corrective action to Plaintiff for attendance issues. Defendant argues that each of
Plaintiff’s purported adverse employment actions fail to support her claim. Defendant contends
that Young was unaware of Plaintiff’s complaints when she transferred Plaintiff to the night crew
and refused Plaintiff’s request to transfer to another store. Additionally, Defendant argues that

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Plaintiff cannot show that Defendant’s non-retaliatory reasons for taking the adverse
employment actions were pretexual.
To make out a prima facie case for retaliation, a plaintiff must show that: (1) she was
involved in a protected activity; (2) her employer took an adverse employment action; and (3) a
causal relationship between the two. See Brooks, 229 F.3d at 928. Defendant does not dispute the
first two elements of Plaintiff’s prima facie case. Rather, Defendant claims that Plaintiff cannot
show a causal link between her protected activities and the adverse employment actions.
There is nothing in the record showing that Young was aware of Plaintiff’s complaints
when she decided to transfer Plaintiff to the night crew. “Essential to a causal link is evidence
that the employer was aware that the plaintiff had engaged in the protected activity.” Cohen v.
Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982); see also Raad v. Fairbanks N. Star
Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003) (“[T]he plaintiff must make some
showing sufficient for a reasonable trier of fact to infer that the defendant was aware that the
plaintiff had engaged in protected activity.”). Young transferred Plaintiff to night crew and
adjusted her hours in November of 2014. Young Decl. ¶ 13. Young first learned of Plaintiff’s
complaint from Yoo on January 2, 2015. Young Supp. Decl. ¶ 5, Ex. 23. Therefore, Plaintiff has
not made the required showing that Young—the decision-maker responsible for the adverse
employment action—knew of Plaintiff’s protected activity when she took the adverse
employment action.
Plaintiff’s second adverse employment action fails for the same reason. Plaintiff claims
that Young denied her request to transfer to another store in December of 2014. As stated above,
however, Young did not learn of Plaintiff’s complaints to HR and her union representative until
January of 2015. Here too, Plaintiff cannot show the requisite causation between her protected

17- OPINION & ORDER

activity and the adverse employment action. Accordingly, summary judgment is granted on
Plaintiff’s retaliation claim to the extent that it is based on Young’s decisions to transfer Plaintiff
to the night crew with an adjusted schedule and to deny Plaintiff’s request for a transfer.
Lastly, Defendant argues that Plaintiff cannot show that Defendant’s reasons for issuing
her a written corrective action notice were pretext for retaliation. Unlike Plaintiff’s two other
adverse employment actions, Young was aware of Plaintiff’s complaints when she issued the
notice. Plaintiff argues that the close temporal proximity between Plaintiff’s complaints and the
corrective action notice is sufficient evidence of pretext.
Once a Plaintiff has shown the three elements of a prima facie case for retaliation:
[T]he burden of production shifts to the employer to present
legitimate reasons for the adverse employment action. Once the
employer carries this burden, plaintiff must demonstrate a genuine
issue of material fact as to whether the reason advanced by the
employer was a pretext. Only then does the case proceed beyond
the summary judgment stage.
Brooks, 229 F.3d at 928 (internal citation omitted).
In this case, Defendant has carried its burden of showing that it had legitimate
nondiscriminatory reasons for issuing Plaintiff the corrective action notice. According to
Defendant, Plaintiff’s poor attendance record supports Young’s decision. Young and Assistant
Store Manager Alicia Biver issued Plaintiff the corrective action notice on January 20, 2015.
Young Decl. ¶19. Between December 29, 2014, and January 19, 2015, Plaintiff was absent from
work for approximately thirty-six scheduled hours. Young Decl. ¶19, Ex. 4; Biver Decl. ¶ 5, ECF
27. During Plaintiff’s thirteen scheduled shifts in that time period, she left early seven times and
was absent three other times. Id. Neither Young nor Biver were informed that Plaintiff had any
excuse for leaving early from her shifts. Id. The remaining question is whether Plaintiff can show

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that Defendant’s legitimate nondiscriminatory reason for issuing her the written corrective action
was pretextual.
The pretext analysis for retaliation claims is the same as it is for discrimination claims as
discussed above. See supra Part I. A plaintiff may show pretext “by ‘directly persuading the
court that a discriminatory reason more likely motivated the employer[,] or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.” Stegall v. Citadel Broad.
Co., 350 F.3d 1061, 1066 (9th Cir. 2003), as amended (Jan. 6, 2004) (quoting Burdine, 450 U.S.
at 256). The Ninth Circuit has “listed three ways in which a plaintiff can show that retaliation
was a substantial or motivating factor behind a defendant’s adverse employment actions.”
First, a plaintiff can introduce evidence regarding the proximity in
time between the protected action and the allegedly retaliatory
employment decision, from which a jury logically could infer [that
the plaintiff] was terminated in retaliation for his speech. Second, a
plaintiff can introduce evidence that his employer expressed
opposition to his speech, either to him or to others. Third, the
plaintiff can introduce evidence that is employer’s proffered
explanations for the adverse employment action were false and
pre-textual.
Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003) (internal citations and quotation
marks omitted).
Unlike Plaintiff’s discrimination claim, Plaintiff has produced no direct evidence
showing that Young had a retaliatory motive for issuing her a written corrective action. The
record contains no statements from Young expressing opposition to Plaintiff’s complaints.
Plaintiff makes two arguments regarding pretext. First, Plaintiff argues that Defendant’s
explanation is contradicted by the record and is therefore false. Second, Plaintiff argues that the
close temporal proximity between when Young learned of Plaintiff’s complaints and when
Young issue the written corrective action notice shows pretext.

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Plaintiff contends that evidence in the record contradicts Defendant’s proferred
justification for issuing her the corrective action notice. For example, Pohan testified Young
cited an incident in which Pohan allowed Plaintiff to leave work early in January 2015 because
Plaintiff reported that she was having chest pain and needed to go to the emergency room. Pohan
Decl. ¶ 23. In addition, Young cited incidents in December of 2014 in which Plaintiff was one
minute late, two minutes late, and four minutes late. See Meyer Decl. ¶ 10, Exs. 9 & 10. On
several of the days that Plaintiff arrived late, she also left approximately twenty-five minutes
early. Id. Grimm explained that PICs were permitted to allow an employee to leave early who
had completed their work for the day. Grimm Decl. at ¶12. In response, Defendant produced
evidence showing that it issued corrective action notices to other employees during the same
period for similar or lesser attendance policy violations. Young Decl. ¶ 20; Young Supp. Decl.
¶ 7; Kiddle Decl. ¶14, Ex. 12. Despite Plaintiff’s arguments, Defendant has produced undisputed
evidence that Plaintiff was aware of Safeway’s attendance policy and repeatedly violated it.
While Plaintiff provides some explanations for her attendance record, she has not produced
evidence showing that Defendant’s reasons for the adverse employment action were false.
Next, Plaintiff argues that Young’s retaliatory motivation can be shown indirectly
through the close temporal relationship between when Young learned of Plaintiff’s complaints
and when she issued the written corrective action. The standard for raising a triable issue as to
motivation is “relatively low.” Stegall, 350 F.3d at 1072
[I]n evaluating whether the defendant’s articulated reason is
pretextual, the trier of fact must, at a minimum, consider the same
evidence that the plaintiff introduced to establish her prima facie
case. When that evidence, direct or circumstantial, consists of more
than the McDonnell Douglas presumption, a factual question will
almost always exist with respect to any claim of a
nondiscriminatory reason. The existence of this question of

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material fact will ordinarily preclude the granting of summary
judgment.
Id. at 1072 (quoting Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1111 (9th Cir.
1991) (citations omitted)). The motivation element of a retaliation claim “require[s] very little
evidence to survive summary judgment precisely because the ultimate question is one that can
only be resolved through a ‘searching inquiry’—one that is most appropriately conducted by a
factfinder, upon a full record.” Id. (quoting Sischo-Nownejad, 934 F.2d at 1111). The Ninth
Circuit has explained that an employer’s true motive in an employment decision is difficult to
ascertain and “such an inquiry should be left to the trier of fact[.]” Id. at 1072.
Young first learned of Plaintiff’s complaints on January 2, 2015. Young Supp. Decl. ¶ 5,
Ex. 23. On January 5, 2015, Young wrote to Yoo that she intended to issue a corrective action
notice to Plaintiff for attendance violations. Yoo Depo. 25:18–26:9. On January 20, 2015, less
than three weeks later, Young issued Plaintiff the written corrective action notice. Meyer Decl.
Ex. 5 (Young Depo.) 121:5–8. Such a close temporal relationship between these events is
sufficient for a factfinder to logically infer that Young issued the corrective action notice because
of Plaintiff’s complaints. The Ninth Circuit has recognized that significantly longer periods of
time are sufficient to infer retaliation. See, e.g., Alpha Energy Savers, Inc. v. Hansen, 381 F.3d
917, 929 (9th Cir. 2004) (citing Coszalter, 320 F.3d at 977) (recognizing that a three-to-eight
month range “‘easily’ supports an inference of retaliation”). Because a reasonable factfinder
could infer that Defendant’s nondiscriminatory reasons for the adverse employment action were
pretextual, Defendant’s motion to dismiss Plaintiff’s retaliation claim is denied.
IV.

FMLA/OFLA
Lastly, Defendant moves for summary judgment on Plaintiff’s “medical leave

interference, discrimination or retaliation” claims brought under the FMLA and OFLA. See

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Compl. ¶¶ 86–102. Claims brought under the FMLA and OFLA are subject to the same legal
standards. Sanders v. City of Newport, 657 F.3d 772, 783 (9th Cir. 2011). The FMLA and OFLA
“create[] two interrelated substantive rights for employees.” Xin Liu v. Amway Corp., 347 F.3d
1125, 1132 (9th Cir. 2003). First, an employee has the right to take leave for reasons described in
the statutes. Id. Second, an employee who takes such leave “has the right to be restored to his or
her original position or to a position equivalent in benefits, pay, and conditions of employment
upon return from leave.” Id. (internal citations omitted).
It is unlawful for an employer to “interfere with, restrain, or deny the exercise or the
attempt to exercise, any right provided” by the FMLA/OFLA. Bachelder v. Am. W. Airlines, Inc.,
259 F.3d 1112, 1122 (9th Cir. 2001) (citing 29 U.S.C. § 2615(a)(1)). The Ninth Circuit has
recognized two theories for recovery under 29 U.S.C. § 2615, “the retaliation or discrimination
theory and the entitlement or interference theory.” Sanders, 657 F.3d at 777 (quoting Smith v.
Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002)). “While the FMLA does
not clearly delineate these two claims with the labels ‘interference’ and ‘retaliation,’ those are
the labels courts have used in describing an employee’s claims under the Act.” Id. (quoting
Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1206 n. 9 (11th Cir.
2001)).
To make out an interference claim, a plaintiff must show that taking the protected leave
was a “negative factor” in the employer’s employment actions. Bachelder, 259 F.3d at 1122.
(citing 29 C.F.R. § 825.220(c)). Interferences includes “not only refusing to authorize FMLA
leave, but discouraging an employee from using such leave.” Xin Liu, 347 F.3d at 1133 (quoting
29 C.F.R. § 825.220(b)). A plaintiff can prove an interference claim “by using either direct or
circumstantial evidence or both.” Sanders, 657 F.3d at 778 (quoting Bachelder, 259 F.3d at

22- OPINION & ORDER

1125). Evidence that an employer failed to reinstate an employee after leave to “her original (or
an equivalent) position establishes a prima facie denial of the employee’s FMLA rights.” Id.
(citing 29 C.F.R. §825.220(b)). The Ninth Circuit does not apply the McDonnell Douglas
burden-shifting framework to interference claims. Id. If an employer “seeks to establish that he
has a legitimate reason to deny an employee reinstatement, the burden of proof on that issue rests
with the employer.” Id. at 781.
Plaintiff has produced evidence showing that Defendant interfered with her protected
leave sufficient to survive summary judgment. Specifically, Plaintiff produced circumstantial
evidence from which one could infer that Young interfered with Plaintiff’s leave by deliberately
misplacing or throwing away her leave paperwork. See Pl.’s Decl. ¶¶ 13–14; Pohan Decl. ¶ 14.
For example, Pohan observed Plaintiff’s leave paperwork in Young’s trash bin and when Pohan
confronted her about it, Young stated that Plaintiff “doesn’t matter.” Pohan Decl. ¶ 14. Young
also texted Plaintiff at least three times while Plaintiff was on protected leave. Young Decl. ¶¶ 9,
12, Ex. 1. In one of those messages, Young informed Plaintiff that she was entitled less hours of
leave than she requested. Id. at ¶ 9. In another message, Young asked Plaintiff is she was going
to ask to extend her leave. Id. at ¶ 12.
In addition, when Plaintiff returned from her leave she was not reinstated to an equivalent
position. Sanders, 657 F.3d at 778 (citing 29 C.F.R. § 825.220(b) (recognizing that “any
violation of the FMLA constitutes interference with rights under the FMLA”). Upon Plaintiff’s
return, she was transferred from the produce department to the night crew and her hours were
reduced. The Court concludes that based on this evidence, Plaintiff has created a triable issue as
to whether Defendant interfered with her protected leave. Therefore, summary judgment on this
issue is denied.

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As for Plaintiff’s FMLA/OFLA retaliation claim, such claims are reviewed at the
summary-judgment stage under the McDonnell Douglas burden-shifting framework described
above. See supra Part III. Once more, Plaintiff must prove that: (1) she engaged in a protected
activity; (2) Defendant took an adverse employment action against her; and (3) there is a causal
connection between the protected activity and the adverse action. If Plaintiff establishes her
prima facie case, then the burden shifts to Defendant to show a legitimate, non-retaliatory
reasons for the adverse employment actions. If Defendant produces such reasons, then the
burden shifts back to Plaintiff to show that the reasons were pretext for retaliation.
Plaintiff has clearly established her prima facie case of retaliation. The parties do not
dispute that Plaintiff took her protected leave and that Defendant took adverse employment
actions against her. The causal connection is established by the temporal proximity between
Plaintiff’s leave and Defendant’s decisions to transfer her to night shift, deny her transfer to
another store, and issue her a written corrective action notice. Plaintiff took her leave from
October 7 to November 15, 2014. Young Decl. ¶ 8. Young transferred Plaintiff to the night crew
with reduced hours immediately upon her return. Id. at ¶ 13. In October and December of 2014
Young refused Plaintiff’s requests to transfer to another store, based in part, on Safeway’s policy
prohibiting transfers while on medical leave. Kiddle Decl. ¶ 9. Lastly, Defendant issued Plaintiff
a written corrective action notice for attendance violations on January 20, 2015, less than three
months after Plaintiff returned from leave. As discussed above, such a close temporal proximity
between the protected activity and the adverse employment actions is sufficient to create an
inference of retaliation. Accordingly, Defendant’s motion for summary judgment on Plaintiff’s
FMLA/OFLA retaliation claim is denied.
//

24- OPINION & ORDER

CONCLUSION
Defendant’s motion to strike [38] is GRANTED in part. Defendant’s motion for
summary judgment [22] is: DENIED as to Plaintiff’s discrimination claim; DENIED as to
Plaintiff’s hostile work environment claim; GRANTED in part as to Plaintiff’s retaliation claim;
and DENIED as to Plaintiff’s FMLA/OFLA claims.

Dated this

day of ______________________, 2017.

MARCO A. HERNÁNDEZ
United States District Judge

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