Aichele v. Blue Elephant Holdings, LLC et al
OPINION and ORDER: The Court GRANTS in part and DENIES in part Defendants Motion for Summary Judgment, and, accordingly, DISMISSES with prejudice Plaintiffs Second, Third, and Fourth Claims against Defendant Donald Morse. In addition, the Court DENIES Plaintiffs Motion for Partial Summary Judgment and DENIES Defendants Motion for Discovery Sanctions except as noted in Order. See Opinion and Order attached. Signed on 11/13/17 by Judge Anna J. Brown. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
OPINION AND ORDER
BLUE ELEPHANT HOLDINGS, LLC, a
domestic business corporation
doing business as the Human
Collective II, and DONALD
CRAIG A. CRISPIN
ASHLEY A, MARTON
Crispin Employment Lawyers
1834 S.W. 58th Ave., Suite 200
Portland, OR 97221
Attorneys for Plaintiff
CAROLINE R. GUEST
KELLY S. RIGGS
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
222 S.W. Columbia St., Suite 1500
Portland, OR 97201
Attorneys for Defendants
This matter comes before the Court on the Motion (#31) for
Summary Judgment and Motion (#36) for Discovery Sanctions filed
1 - OPINION AND ORDER
by Defendants Blue Elephant Holdings, LLC, and Donald Morse and
the Motion (#47) for Partial Summary Judgment on Liability filed
by Plaintiff Cheryl Aichele.
For the reasons that follow, the Court GRANTS in part and
DENIES in part Defendants’ Motion for Summary Judgment, DENIES
Defendants’ Motion for Discovery Sanctions, and DENIES
Plaintiff’s Motion for Partial Summary Judgment.
The following facts are taken from the parties’ Joint
Statement of Agreed Facts (#30) and summary-judgment materials
and are undisputed unless otherwise noted.
Blue Elephant is an Oregon corporation that owns and
operates a marijuana dispensary in Southwest Portland, which does
business as “The Human Collective II” or “The Human Collective.”
Morse is an owner of Blue Elephant and serves as the
Managing Director of the corporation.
As Managing Director Morse
is authorized to make decisions regarding the day-to-day
management of the dispensary’s operations.
From November 10, 2015, until March 2016 Plaintiff was
employed by Blue Elephant as a part-time “bud tender.”
On January 28, 2016, Ric Leonetti, the manager of the store
where Plaintiff worked, held a staff meeting at which he
distributed and discussed Blue Elephant’s new Employee Handbook.
Plaintiff signed an acknowledgment of receipt of the Employee
Handbook on that date.
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In early February 2016 Plaintiff complained to Morse and/or
Leonetti about alleged black mold on a vent in the restroom.
Plaintiff also sent an instant message to Morse regarding this
issue, but Morse denies he received any instant message at that
Morse asserts he later heard about Plaintiff’s mold
complaint from Leonetti.
Also in February 2016 Plaintiff alleges she made
approximately six oral complaints to Morse and/or Leonetti about
internal doors being left unlocked or open, the door chime being
deactivated, and the safe being left open.
On the afternoon of February 26, 2016, while Plaintiff and
numerous other employees and customers were present, a customer
walked behind the sales counter and attempted to open the door to
the apothecary where most of the cannabis product is kept.
another employee helped the customer, Plaintiff went to Morse’s
office, told him that she did not feel safe, and asked Morse to
handle the situation.
Plaintiff also told Morse that she thought
it would be nice if he hired an armed security guard.
On February 29, 2016, and March 1, 2016, Morse spoke with
attorney Scott Snyder regarding Plaintiff’s complaint that she
did not feel safe after the customer walked behind the counter.
Morse asked Snyder for legal advice regarding his options with
respect to Plaintiff.
Snyder advised Morse that Oregon is an at-
will employment state and that the company could and should
terminate Plaintiff’s employment.
On March 4, 2016, at approximately 10:30 a.m. before the
3 - OPINION AND ORDER
store opened where Plaintiff worked, a music video was streaming
to a TV monitor in the dispensary showroom.
Plaintiff and four
other employees (Cody Brown, Nick Harris, Eliav Cohen, and J.
Cody Robertson) were working in the showroom.
The video is a total of seven minutes and 34 seconds and
consists of two parts.
The first part depicts a party scene, and
the second part is more sexually graphic.
Shortly after the
second half of the video began to play, Plaintiff objected to the
video being played and demanded that her co-workers turn it off.
The parties disagree as to the words used and the manner in which
Plaintiff stated her objection.
As soon as Plaintiff objected to
the video, one of her co-workers rushed to the computer controls
to turn it off.
Blue Elephant’s security camera footage shows
the video was turned off in less than 30 seconds after Plaintiff
After the video was turned off, Plaintiff continued yelling
at Brown and used profanity.
manager of the store.
Brown was considered the assistant
Brown became upset, also yelled and used
profanity, and told Plaintiff to leave work.
Plaintiff did not
Brown called Leonetti, who was not at work on the day of
this incident, and told him what had happened.
speak with Plaintiff.
Leonetti asked to
In graphic language Plaintiff told
Leonetti that she was offended by the video.
At 10:45 a.m. that same day Leonetti sent a text message to
Brown, Cohen, and Morse with the following instructions:
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THE MENU PLAYS ON THE TV SCREEN. IMMEDIATELY STOP PLAYING
ANYTHING THE [sic] COULD BE OFFENSIVE TO ANYONE.”
Plaintiff worked the remainder of her shift on March 4,
Later in the afternoon on March 4, 2016, Morse again called
Snyder to inform him that Plaintiff had complained about sexual
comments, conversations, music, and music videos being displayed
in the dispensary.
Morse told Snyder about the incident that had
occurred with the video that morning, including Plaintiff’s
response and behavior during and after the incident.
Snyder for legal advice and reassurance as to what he should do
with respect to Plaintiff.
Snyder reiterated his advice to Morse
to terminate Plaintiff.
On March 4, 2016, at 4:19 p.m. Morse sent the following text
message to Leonetti:
“I have been advised by our attorney to
terminate Cheryls [sic] employment.
If you care to discuss it
please call me.”
Plaintiff worked on March 5, 2016, but she was not scheduled
to work on March 6, 2016.
On March 7, 2016, Plaintiff arrived at work at approximately
9:35 a.m., immediately handed an envelope to Leonetti, and told
him that it was her “incident report and formal sexual harassment
The written complaint set out her safety concerns
arising from the customer walking behind the dispensary counter
on February 26, 2016, and alleged sexual harassment, a hostile
5 - OPINION AND ORDER
work environment, and discriminatory conduct.
Leonetti took the papers to his office and began to review
After a few minutes Leonetti called Plaintiff into his
There is a dispute as to the details of this
conversation, but the parties agree Leonetti told Plaintiff to go
home for the day.
The parties also agree Leonetti was the sole
decision-maker to send Plaintiff home from work on the morning of
March 7, 2016.
On March 7, 2016, at 11:22 a.m. after Plaintiff had gone
home, she sent an email titled “Formal Sexual harassment &
Hostile Work Environment Complaint #2” to Leonetti and others,
Plaintiff reiterated her earlier complaints;
stated Leonetti had retaliated against her by sending her home
that morning after she submitted her written complaints; and
asked that Leonetti, Brown, Harris, and Cohen immediately resign
or be terminated.
Plaintiff also asked for her email to be
forwarded to Morse.
After Morse reviewed Plaintiff’s written incident reports
and complaints, he called Snyder to update him on the situation
and again asked for his advice on how to proceed.
present and heard at least part of the telephone call.
told Snyder about Plaintiff’s written complaints and asked Snyder
whether that changed Snyder’s advice in any way.
told Morse that Oregon is an “at-will employment state” and
advised Morse to terminate Plaintiff.
On March 7, 2016, at 12:47 p.m. Morse called Plaintiff and
6 - OPINION AND ORDER
left her a voicemail asking to talk with her about her complaints
and what had transpired that morning.
At 5:18 p.m. Plaintiff
returned Morse’s call and left him a voicemail.
Morse returned Plaintiff’s call.
telephone call with Morse.
At 5:40 p.m.
Plaintiff recorded the
During the conversation Morse
terminated Plaintiff’s employment.
Aside from Snyder providing legal advice and recommending
termination, the parties agree Morse was the sole decision-maker
and that he made the decision to terminate Plaintiff’s employment
on March 7, 2016.
The parties also agree Morse was acting within
the course and scope of his authority as an owner and Managing
Director of Blue Elephant when he terminated Plaintiff’s
employment, and, as the Managing Director of Blue Elephant, Morse
had the authority to make the decision to terminate Plaintiff
without first consulting the Board of Directors or any other
owner or manager of Blue Elephant.
On March 8, 2016, at 2:59 p.m. after speaking with a
different attorney, Morse sent an email to Plaintiff and
rescinded her termination.
Morse placed Plaintiff on paid
administrative leave pending an investigation of her complaints.
On March 8 and 9, 2016, Blue Elephant issued written
disciplinary actions to Brown, Harris, Cohen, and Leonetti
regarding the video incident and Plaintiff’s complaints.
On March 10, 2016, Plaintiff sent an email to Morse and
attached copies of all of her written incident reports and
complaints and provided a link to the song lyrics and a link to
7 - OPINION AND ORDER
On March 18, 2016, Defendants’ attorney sent an email to
Plaintiff’s attorney and notified him that the investigation was
complete and that Plaintiff would be placed back on the work
schedule for shifts beginning March 22, 2016, at 12:30 p.m.
Plaintiff did not return to work on March 22, 2016.
On March 22, 2016, Defendants’ attorney sent an email to
Plaintiff’s attorney and described the remedial efforts that Blue
Elephant had taken in response to Plaintiff’s complaints and
notified him that Plaintiff was on unpaid administrative leave
effective that date.
On March 23, 2016, Morse sent Plaintiff her final paycheck
in which she was paid for her actual hours worked during the week
of March 1-5, 2016, and her average of 20 hours per week for the
weeks of March 6-12 and March 13-19, 2016.
Plaintiff did not
return to work after March 22, 2016.
Throughout her employment with Blue Elephant Plaintiff
earned $10 per hour and worked an average of 20 hours per week.
The parties agree Plaintiff did not suffer any economic loss or
damages between March 7, 2016, and March 22, 2016.
Plaintiff does not seek recovery of any economic damages other
than lost wages.
The parties agree after Plaintiff’s employment with Blue
Elephant ended in March 2016, Plaintiff did not seek employment
until May 31, 2016, and she applied for only eight jobs between
that date and December 4, 2016.
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On May 17, 2016, Plaintiff filed a charge of unlawful
employment practices with the Oregon Bureau of Labor and
Industries, Civil Rights Division (BOLI), and the Equal
Employment Opportunity Commission (EEOC).
On October 21, 2016, Plaintiff filed a complaint in
Multnomah County Circuit Court against Defendants.
alleged claims for retaliation pursuant to 42 U.S.C. § 2000e-3(a)
and Oregon Revised Statutes §§ 659A.030(1)(f) and 654.053(5) and
claims for retaliation for whistleblowing pursuant to Oregon
Revised Statutes § 659A.199.
On November 22, 2016, Defendants filed a Notice of Removal
in this Court.
Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
Washington Mut. Ins.
v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Fed. R. Civ. P. 56(a).
The moving party must show the absence of
a dispute as to a material fact.
Rivera v. Philip Morris, Inc.,
395 F.3d 1142, 1146 (9th Cir. 2005).
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
one . . . .
"This burden is not a light
The non-moving party must do more than show there is
9 - OPINION AND ORDER
some 'metaphysical doubt' as to the material facts at issue."
re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
The court must draw all
reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
Easter v. Am. W. Fin.,
381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).
disagreement or bald assertion” that a genuine dispute as to a
material fact exists “will not preclude the grant of summary
Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-
1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
When the nonmoving party's claims are factually
implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
LVRC Holdings LLC
v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.
10 - OPINION AND ORDER
Miller v. Glenn Miller
Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
Defendants contend there is not a genuine dispute of
material fact, and, therefore, they are entitled to summary
judgment on the grounds that (1) there is not any evidence of an
adverse employment action by Defendants; (2) there is not any
evidence of causation because (a) Defendants terminated Plaintiff
based on the advice of counsel and/or (b) Plaintiff cannot
establish she was terminated because she engaged in a protected
activity; and (3) Plaintiff has not sustained any economic
Morse also contends he is entitled to summary judgment
on Plaintiff’s claims against him for aiding and abetting on the
ground that such a claim cannot apply to him because he was the
Defendants also seek sanctions for
Plaintiff’s discovery violations, including dismissal of
Plaintiff, in turn, contends she is entitled to partial
summary judgment on the issue of Defendants’ liability on the
grounds that the undisputed evidence supports her claims of
retaliation and that the only issue in dispute is her damages.
Defendants’ Motion (#31) for Summary Judgment
To establish a prime facie case of retaliation under both
Title VII and Oregon law, Plaintiff must establish she engaged in
11 - OPINION AND ORDER
a protected activity, that she was subjected to an adverse
employment action, and that a causal link exists between the two.
Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 693 (9th Cir.
After Plaintiff has established her prima facie case, the
burden shifts to Defendant Blue Elephant to show a “legitimate,
nonretaliatory reason for any adverse employment action taken”
against the employee.
If Blue Elephant meets this burden,
Plaintiff then “has the ultimate burden of showing [Blue
Elephant’s] proffered reasons are pretextual.”
The parties do not dispute that some of Plaintiff’s
complaints constituted protected activity.
Adverse Employment Action
Defendants contend the Court should find Plaintiff’s
termination on March 7, 2016, is not an actionable adverse
employment action because Plaintiff’s termination was rescinded
less than 24 hours later and Plaintiff did not suffer any
economic loss because she was reinstated to paid administrative
leave pending further investigation.
Plaintiff, however, contends sufficient facts exist to
establish that she suffered an adverse employment action.
if direct evidence did not establish an adverse employment
action, Plaintiff contends a genuine dispute of material fact
still exists because of the close temporal proximity of the
events from which a jury could find Plaintiff suffered an adverse
12 - OPINION AND ORDER
For purposes of a retaliation claim an adverse
employment action is “any adverse treatment that is based on a
retaliatory motive” and is “reasonably likely to deter employees
from engaging in protected activity.”
1234, 1242, 1243 (9th Cir. 2000).
Ray v. Henderson, 217 F.3d
“[O]nly non-trivial employment
actions that would deter reasonable employees from complaining
about Title VII violations will constitute actionable
Reynaga, 847 F.3d at 693 (citing Brooks v. City of
San Mateo, 229 F.3d 917, 928 (9th Cir. 2000)).
The severity of
an action’s ultimate impact “goes to the issue of damages, not
Id. at 1244 (citing Hashimoto v. Dalton, 118 F.3d
671, 676 (9th Cir. 1997)).
Plaintiff contends she suffered adverse employment
actions when Brown told her to go home following her complaints
about the video, when Leonetti sent her home after he reviewed
her formal written complaint, and when Morse terminated her after
he received her formal complaints about sexual harassment and
The undisputed evidence shows Brown did not have the
authority to take any action against Plaintiff; Plaintiff did not
leave work when Brown told her to go home on March 4, 2016; and,
in fact, Plaintiff continued to work her full shift on March 4,
13 - OPINION AND ORDER
2016, and on the following day.
On March 6, 2016, however,
Plaintiff came to work at her scheduled time and presented
Leonetti with her written complaints.
Leonetti took Plaintiff’s
complaints to his office and began to review them.
later Leonetti called Plaintiff into his office.
A few minutes
parties disagree as to the details of the conversation between
Plaintiff and Leonetti, the parties agree Leonetti told Plaintiff
to go home for the day.
complaints to Morse.
Leonetti communicated Plaintiff’s
On March 7, 2016, Morse terminated
Defendants contend their actions do not constitute an
adverse employment action because Leonetti did not suspend
Plaintiff but instead sent her home “because she was not in a
good place to help the customers or the business,” and “if she,
in fact, felt threatened, then the best place for her would to
[sic] not be there.”
Defendants further contend Plaintiff’s
termination on March 7, 2016, lasted less than 24 hours, and she
placed on paid administrative leave pending further
On this record the Court concludes the Plaintiff has
established a prima facie case that Defendants’ conduct after
Plaintiff complained about sexual harassment and workplace safety
constituted adverse employment actions that were reasonably
likely to deter Plaintiff and other employees from complaining in
the future about such conditions in the workplace.
the Court concludes as a matter of law that the actions of
14 - OPINION AND ORDER
Leonetti and Morse constitute adverse employment actions.
To establish a prima facie case of retaliation against
Defendants Plaintiff must also show a causal link between her
protected activity and Defendants’ employment actions.
To establish the requisite causal link, Plaintiff must
prove her protected complaints were a “substantial factor” in
Defendants’ adverse employment actions.
Pool v. VanRheen, 297
F.3d, 899, 910 (9th Cir. 2002)(citing Seitz v. State ex rel.
Albina Human Res. Ctr., 100 Or. App. 665, 675 (1990)).
Causation may be inferred from “proximity in time
between the protected action and the alleged retaliatory
Ray, 217 F.3d at 1244 (citing Yartzoff v.
Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)).
Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d
493, 507 (9th Cir. 2000)(noting causation can be inferred from
Here the undisputed evidence shows Defendants’ adverse
employment actions occurred on the day of and the day following
On the basis of that timing, reasonable
jurors could infer causation between Plaintiff’s protected
activities and Defendant’s adverse actions.
Defendants contend, however, Plaintiff was not
terminated because of her complaints, but rather because of the
15 - OPINION AND ORDER
unreasonable demands she made in connection with her complaints;
i.e., Defendants assert Plaintiff unreasonably demanded Defendant
Blue Elephant hire an armed security guard to address workplace
safety issues and that Blue Elephant terminate the employees
involved in the video incident, including the store manager.
Plaintiff, on the other hand, contends she did not
demand or even ask the company to hire a security guard, but she
told Morse that it would be a “nice idea.”
contends she wanted to “have a conversation about what had
happened, what steps had been taken, what safeguards would be put
in place” to “insure that those things were not continuing.”
Plaintiff testified she didn’t think a reprimand was “enough
compared to the other disciplinary actions” and that termination
of the other employees “should be at least considered.”
Plaintiff, however, contends she did not ask for the employees’
termination as a condition of her return to work.
On this record the Court concludes there is a genuine
dispute of material fact regarding the reasons for Plaintiff’s
termination, and, therefore, causation is an issue for the jury
Accordingly, the Court DENIES Defendants’ Motion for
Summary Judgment on this basis.
Advice of Counsel
Defendants contend even if Plaintiff suffered adverse
employment actions, her claims should be dismissed because
Defendants’ decision to terminate Plaintiff was based on their
good-faith reliance on the advice of counsel.
16 - OPINION AND ORDER
Plaintiff, however, contends the advice-of-counsel defense
is not applicable and is not a complete defense to her claims.
Plaintiff also contends Defendants have not shown reasonable
reliance on advice of counsel, and, therefore, this is an issue
for a jury in determining motivation for Defendants’ actions.
The parties do not cite and the Court has not found any
Ninth Circuit case that addresses the defense of good-faith
reliance on the advice of counsel in the context of an employment
retaliation case, and the cases from other jurisdictions cited by
the parties do not directly address this issue.
The Court notes,
however, that the Tenth Circuit held in McGowan v. City of Eufala
that “an employer cannot immunize itself from Title VII liability
by following the advice of its lawyers.”
The court noted:
472 F.3d 736, 747 (10
“If the reason for the claimed
adverse action does not flow from a discriminatory motive, it
lacks the requisite causal connection to the adverse action.”
The court concluded it was “entirely reasonable” under the
circumstances of that case for the defendant to follow the advice
of counsel, and, therefore, the plaintiff had failed to support
her argument that the defendant’s reason for taking the
employment action was a pretext.
Morse testified he first spoke to his attorney
regarding Plaintiff on February 29, 2016, about Plaintiff’s
safety complaints arising from the customer incident on
17 - OPINION AND ORDER
February 26, 2016.
Morse next talked to his attorney on March 1,
2016, and told the attorney that he had not terminated
Plaintiff’s employment because Plaintiff’s complaints were not
“egregious enough at that point to terminate her.”
Morse, the attorney referred to Plaintiff as “a troublemaker” and
advised Morse to terminate her.
Morse testified he had not made any decision to
terminate Plaintiff’s employment as of March 3, 2016.
testified he would not have terminated Plaintiff on March 4,
2016, if she had not complained “because other people would have
complained about what transpired that day.”
Morse further testified as follows:
Was it solely because of [the attorney]’s
advice that you terminated [Plaintiff]?
Well, yeah, it was solely based on his advice
that I could do so.
And did you have a desire to terminate
[Plaintiff] if you got his statement that you
could do so?
I don’t think so.
As I’ve stated here . . . I
didn’t think it was fair to terminate her until
I’d received her side of the story, et cetera.
You know, even getting her on the phone, I
think I was hoping for her to be less, you know,
curt, and maybe a little more -- I don’t think
“conciliatory” is the right word, but to help find
18 - OPINION AND ORDER
a way that we could work this out where she would
feel that she has a safe work environment and
something within reason that would be doable by
But the tone and tenor of how the
conversation began, and whatnot, kind of led me to
believe that that’s not -- wasn’t possible.
If I understand you correctly, at the
beginning of the conversation, you had not made
the decision yet to terminate, but by the end of
the conversation, you had?
Well, I’d made the decision that it was
possible for me to terminate her but would like to
-- would like to work something out.
The Court notes there is not current binding precedent
that establishes the advice of counsel is a complete defense to a
Instead the advice of counsel is merely one
factor to consider when making a determination of a causal
connection between the adverse action and the employer’s
See McGowan v. City of Eufala, 472 F.3d 736, 746-47
(10th Cir. 2006)(“We thus look to motive in addition to
If the reason for the claimed adverse action does
not flow from a discriminatory motive, it lacks the requisite
causal connection to the adverse action.
Here, it was entirely
reasonable for an employer in the City’s legal circumstances to
follow the advice of counsel. . . .”)
Although there is some evidence in this case that
19 - OPINION AND ORDER
Defendants believed they had the right to terminate Plaintiff’s
employment based on the advice of counsel, it is not clear that
the decision to do so was based solely on that advice.
Defendants assert other factors were taken into consideration
such as Plaintiff’s personal hygiene, her on-going note-taking,
and her unreasonable demands regarding the video incident.
On this record the Court concludes there is a genuine
dispute of material fact as to the causation between the adverse
employment action and Defendants’ motivation.
Court DENIES Defendants’ Motion for Summary Judgment on this
Aiding and Abetting
Defendants contend Plaintiff’s state-law retaliation claims
asserted against Morse should be dismissed on the ground that he
cannot be held individually liable.
Plaintiff, in turn, contends she seeks to hold Morse liable
based on his own conduct rather than his acts on behalf of the
corporate entity and that Morse acted to “effectuate the
employer’s violation” of state law.
Plaintiff asserts three state-law claims of retaliation
arising from her (1) complaints about sexual harassment and a
hostile work environment pursuant to Oregon Revised Statutes
§ 659A.030(f), (2) complaints about safety violations pursuant to
Oregon Revised Statutes § 654.062(5), and (3) whistleblowing
pursuant to Oregon Revised Statutes § 659A.199.
20 - OPINION AND ORDER
alleges Morse is individually liable pursuant to Oregon Revised
Statutes § 659A.030(1)(g) “as an aider and abettor” because he
“acted to help, assist, or facilitate the commission of the
unlawful employment practices alleged . . ., promoted the
accomplishment thereof, helped in advancing or bringing them
about or in encouraging, counseling or inciting as to their
The parties agree the following are the three specific
retaliatory acts on which Plaintiff’s claims are based:
(1) Brown directed Plaintiff to leave work on March 4, 2016;
(2) Leonetti sent Plaintiff home from work on the morning of
March 7, 2016; and (3) Morse terminated Plaintiff’s employment on
March 7, 2016.
The parties do not dispute Morse was the sole
decision-maker who acted within the course and scope of his
authority as an owner and as the Managing Director of Blue
Elephant when he terminated
Section 659A.030(1)(g) provides it is an unlawful
employment practice “[f]or any person, whether an employer or
employee, to aid, abet, incite, compel or coerce the doing of any
of the acts forbidden under this chapter or to attempt to do so.”
Courts have not identified the elements for aiding and abetting
under § 659A.030(1)(g).
In this District courts have held a primary actor in an
employee’s termination cannot be held liable pursuant to this
statute for aiding and abetting when that person was the primary
21 - OPINION AND ORDER
decision-maker and acting pursuant to their authority.
e.g., Hannan v. Bus. Journal Publ’s, Inc., No. 3:14-cv-00831-SB,
2015 WL 9265959 (D. Or. Oct. 2, 2015); Peters v. Betasee, Inc.,
No. 6:11-cv-06308-AA, 2012 WL 5503617, at *7 (D. Or. Nov. 9,
2012)(“plaintiff's claim against [president of the company] for
aiding and abetting under § 659A.030(1)(g) makes little sense
under the plain meaning of the statute”); White v. Amedisys
Holding, LLC, No. 3:12-cv-01773-ST, 2012 WL 7037317, at *5 (D.
Or. Dec. 18, 2012)(it is not aiding and abetting if the named
“employee is legally equivalent to the employer . . . or arguably
when exercising ‘executive authority’ as in Peters”); Sniadoski
v. Unimart of Portland, No. 93–cv–1051–MA, 1993 WL 797438, at *2
(D. Or. Oct. 29, 1993)(“aiding and abetting liability makes
little sense against an employee alleged to be an active
participant in the asserted harm”).
The parties agree Morse was the sole decision-maker and
acted within the course and scope of his authority as Managing
Director at the time that he terminated Plaintiff’s employment.
On this record, therefore, the Court concludes Morse
cannot be individually liable as to Plaintiff’s retaliation
claims based on aiding and abetting pursuant to § 659A.030(1)(g).
Accordingly, the Court GRANTS Defendants’ Motion and DISMISSES
with prejudice Plaintiff’s Second, Third, and Fourth Claims
22 - OPINION AND ORDER
Defendants contend even if Plaintiff’s claims survive, there
is insufficient evidence from which a reasonable jury could award
Alternatively, Defendants contend Plaintiff
should be barred from recovering any damages for the period after
March 22, 2016, when she was notified she could return to work
and failed to do so.
Plaintiff, however, contends the issue of damages is a fact
question to be submitted to a jury.
“[A]bsent special circumstances, the rejection of an
employer’s unconditional job offer ends the accrual of potential
back pay liability.”
Ford Motor Co. v. E.E.O.C., 458 U.S. 219,
In her Complaint Plaintiff seeks compensatory damages
for personal, noneconomic damages including physical and
emotional pain and suffering, mental anguish, humiliation,
embarrassment, and loss of enjoyment of life.
The parties agree Plaintiff did not suffer any economic
damages between March 7 and March 22, 2016.
The parties further
agree Plaintiff seeks economic damages only for lost wages.
Defendants contend they took remedial steps following
the investigation of Plaintiff’s complaints.
they issued written corrective actions, arranged additional
training, hired a new employee to be responsible for compliance
issues, and instructed employees regarding treatment of Plaintiff
23 - OPINION AND ORDER
upon her return.
Defendants assert they notified Plaintiff about
these actions and that she could return to work.
however, did not return to work after March 22, 2016.
The parties agree after Plaintiff’s employment ended in
March 2016, Plaintiff did not seek employment until May 31, 2016,
and has only applied for eight jobs between May 21, 2016, and
December 4, 2016.
The parties dispute the reason for Plaintiff not
returning to employment after March 22, 2016; the amount of her
economic damages for lost wages; the amount of her noneconomic
damages; and whether she failed to mitigate her damages.
On this record the Court concludes a genuine dispute of
material fact exists.
Accordingly, the Court DENIES Defendant’s
Motion for Summary Judgment on this issue.
Plaintiff’s Motion (#47) for Partial Summary Judgment
Plaintiff contends she is entitled to judgment as a matter
of law as to Defendants’ liability.
Defendants contend, based on
the same reasons stated in their Motion for Summary Judgment,
that Plaintiff’s Motion should be denied.
For the reasons set forth above, the Court concludes genuine
disputes of material fact exist as to the causal link between
Plaintiff’s protected activity and the adverse action taken by
Accordingly, the Court DENIES Plaintiff’s Motion for
III. Defendants’ Motion (#36) for Discovery Sanctions
Defendants seek dismissal of this case based on Plaintiff’s
24 - OPINION AND ORDER
alleged discovery violations.
Defendants contend Plaintiff has
failed to respond timely to discovery requests and has belatedly
produced many of the discovery documents.
As a result,
Defendants contend they have been severely prejudiced.
Alternatively, if the Court does not dismiss Plaintiff’s action,
Defendants seek various sanctions including striking Plaintiff’s
claims for damages, prohibiting Plaintiff from asserting
liability or damages based on late-disclosed evidence, and
awarding attorneys’ fees and costs to Defendants.
Plaintiff concedes she failed to respond timely to some of
Defendants’ discovery requests, but she asserts Defendants are
engaged in “scorched earth” litigation and Defendants’ discovery
requests have lacked proportionality to the case.
Plaintiff originally filed this action in state court and
characterizes this action as a “relatively uncomplicated
employment retaliation matter concerning straightforward issues
of liability and damages.”
On November 22, 2016, Defendants
properly removed the case to this Court.
On December 22, 2016, Defendants served their First Set of
Interrogatories and First Request for Production to Plaintiff.
On January 5, 2017, the Court set initial case-management
deadlines for the completion of discovery by May 19, 2017, and
the filing of dispositive motions by June 19, 2017, as well as a
trial date of January 9, 2018.
On February 2, 2017, Plaintiff served her Responses to these
25 - OPINION AND ORDER
In February a dispute also arose between the parties
concerning subpoenas for Plaintiff’s employment records.
February 17, 2017, the Court informally resolved that issue.
On March 24, 2017, following conferral between the parties
regarding the completeness of Plaintiff’s responses to
Defendants’ requests, Plaintiff agreed responsive documents would
be produced by April 3, 2017.
Plaintiff’s deposition was tentatively scheduled for
April 10, 2017.
On approximately March 27, 2017, the parties
scheduled Plaintiff’s deposition for May 15, 2017.
On April 10, 2017, Plaintiff served a Supplemental Response
to Defendants’ First Interrogatories.
Between April 10 and
May 11, 2017, Plaintiff produced approximately 500 additional
pages of documents.
On April 26, 2017, the parties again brought discovery
disputes to the Court regarding the subpoena of Plaintiff’s
medical records and requested an extension of discovery and
The Court again informally resolved these
On May 4, 2017, pursuant to the agreement of the parties,
the Court extended the deadline to complete discovery to June 30,
2017, and the deadline to file dispositive motions to August 7,
On May 15, 2017, Plaintiff’s deposition was taken by
During her deposition Plaintiff provided a Second
Supplemental Response to Defendants’ First Interrogatories.
26 - OPINION AND ORDER
On May 25, 2017, Defendants served a Second Set of
Interrogatories, Second Request for Production of Documents, and
First Requests for Admissions on Plaintiff.
On May 30, 2017, Plaintiff filed a Motion to Compel for
discovery regarding Defendants’ proposed amendment of their
Answer by adding an advice-of-counsel defense.
On June 9, 2017,
the Court resolved Plaintiff’s Motion.
On June 29, 2017, Plaintiff requested an extension until
June 30, 2017, to provide responses to Defendants’ May 25, 2017,
Defendants agreed to an extension to July 7,
2017, for Plaintiff to respond to Defendants’ interrogatories and
request for production, but they did not agree to an extension
regarding the requests for admission.
Also on June 29, 2017,
Plaintiff served her Responses to Defendants’ Request for
On July 11, 2017, Plaintiff produced 2,057 documents.
On July 12, 2017, Plaintiff served her Response to
Defendants’ Second Set of Interrogatories and Second Request for
Production of Documents.
On that date Plaintiff also served her
Third Supplemental Response to Defendants’ First Interrogatories.
On July 28, 2017, Plaintiff served her Amended Third
Supplemental Response to Defendants’ Interrogatory No. 12.
On August 7, 2017, in conjunction with the filing of their
Motion for Summary Judgment, Defendants filed their Motion for
27 - OPINION AND ORDER
Federal Rule of Civil Procedure 37(d) allows the Court to
order sanctions when a party fails to respond to discovery
The sanctions the Court may order include prohibiting
admission of evidence, striking pleadings, or dismissing an
Fed. R. Civ. P. 37(b)(2).
Only a finding of
“willfulness, bad faith, and fault” will justify a sanction of
terminating an action.
Connecticut General Life Ins. Co. v. New
Images of Beverly Hills, 483 F.3d 1091, 1096 (9th Cir. 2007).
The Ninth Circuit follows a five-part test to determine
whether case-dispositive sanction under Rule 37 is appropriate:
“(1) the public’s interest in expeditious resolution of
litigation; (2) the court’s need to manage its dockets; (3) the
risk of prejudice to the party seeking sanctions; (4) the public
policy favoring disposition of cases on their merits; and (5) the
availability of less drastic sanctions.”
“This test is not
It provides the district court with a way to think
about that to do, not a set of conditions precedent for sanctions
or a script that the district court must follow[.]”
The determination to impose sanctions for discovery
violations and what sanctions are appropriate is within the
discretion of the court.
The Sixth Circuit has noted:
The promulgation of the Federal Rules of Civil
Procedure ushered in a new era of federal litigation,
directed to the goal of securing “the just, speedy and
inexpensive determination of every action and
proceeding.” Fed. R. Civ. P. 1. It would be
reasonable to expect, in light of all the applicable
28 - OPINION AND ORDER
rules and governing precedents, that experienced
attorneys, especially those who have handled major
litigation, would be able to proceed through the
discovery and pretrial stages with a conciliatory
attitude and a minimum of obstruction, and that, under
the guiding hand of the district court, the path to
ultimate disposition would be a relatively smooth one.
Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 123
(6th Cir. 2009).
This Court agrees with the Sixth Circuit’s
sentiments, which are applicable in this case to both sides.
The record reflects Plaintiff has been dilatory in
responding to requests for discovery.
Plaintiff attempts to
justify her conduct based on the “scorched earth” litigation
tactics of the Defendants and Plaintiff’s lack of support staff
to meet Defendants’ “disproportional” discovery demands.
Plaintiff, however, has not sought an order from the Court to
protect her from “annoyance, . . . oppression, or undue burden or
expense” pursuant to Rule 26(c).
Similarly, although the parties have tried to resolve some
of their disputes without the Court’s intervention, Defendants
have not filed any motion to compel production by Plaintiff nor
asked for a continuance of the discovery deadline or the deadline
to file dispositive motions in order to complete and to review
The Court set specific deadlines for the filing of discovery
motions and encouraged the parties to contact the Court to
resolve discovery disputes informally.
In addition, the parties
were aware of discovery deadlines and the necessity to complete
discovery in a timely fashion.
29 - OPINION AND ORDER
Thus, Defendants cannot now
complain that Plaintiff has not complied with discovery deadlines
when Defendants allowed extensions without taking any action when
the extensions were not met.
In the exercise of its discretion, the Court concludes
dismissal of this action is not warranted as a sanction.
Court also concludes other alternative sanctions requested by
Defendants are unwarranted with the exception of the Defendants’
request for the opportunity to depose Plaintiff further.
Court will allow Defendants to depose Plaintiff for an additional
two hours regarding only those documents produced at the time or
subsequent to her earlier deposition.
The Court also directs the
parties to complete Plaintiff’s continued deposition no later
than November 30, 2017.
The Court will not entertain any further
fact-discovery disputes between the parties, and all deadlines
previously set by the Court remain in effect.
For these reasons the Court GRANTS in part and DENIES in
part Defendants’ Motion for Summary Judgment, and, accordingly,
DISMISSES with prejudice Plaintiff’s Second, Third, and Fourth
Claims against Defendant Donald Morse.
In addition, the Court
DENIES Plaintiff’s Motion for Partial Summary Judgment and DENIES
Defendants’ Motion for Discovery Sanctions except as noted.
IT IS SO ORDERED.
DATED this 13th day of November, 2017.
30 - OPINION AND ORDER
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
31 - OPINION AND ORDER
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