Wilkins v. Brandman University
Filing
78
Opinion and Order. The Court GRANTS Defendant's Motion (# 51 ) for Summary Judgment and DISMISSES this matter with prejudice. IT IS SO ORDERED. Signed on 8/5/19 by Judge Anna J. Brown. See attached order for further details. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DEMETRYE WILKINS,
Plaintiff,
v.
BRANDMAN UNIVERSITY,
Defendant.
BETH ANN CREIGHTON
LAURA KOISTINEN
Creighton & Rose, PC
Powers Building
65 S.W. Yamhill Street, Suite 300
Portland, OR 97204
(503) 221-1792
Attorneys for Plaintiff
J. MICHAEL PORTER
MATTHEW A. TRIPP
Miller Nash Graham & Dunn LLP
111 S.W. Fifth Avenue
Suite 3400
Portland, OR 97204
(503) 224-5858
Attorneys for Defendant
1 - OPINION AND ORDER
3:17-cv-01099-BR
OPINION AND ORDER
BROWN, Senior Judge.
This matter comes before the Court on Defendant’s Motion
(#51) for Summary Judgment.
The Court concludes the record is
sufficiently developed to resolve this Motion without oral
argument.
For the reasons that follow, the Court GRANTS
Defendant’s Motion and DISMISSES this matter with prejudice.
BACKGROUND
The following facts are taken from the parties’ Joint
Statement of Agreed Facts (JSAF) and the parties’ filings related
to Defendant’s Motion for Summary Judgment and are undisputed
unless otherwise indicated.
Defendant Brandman University hired Plaintiff Demetrye
Wilkins as an enrollment coach on October 13, 2014.
It is
undisputed that Defendant has a 180-day probationary period
during which enrollment coaches learn how to perform their jobs
but are also expected to reach the goals set by Defendant.
At the time he was hired Plaintiff’s supervisor was Felicia
Royce, Assistant Director of Enrollment Services.
At some point
in the summer of 2015 Enrollment Coach Laura Mumford was promoted
to Assistant Director of Enrollment Services and became
Plaintiff’s direct supervisor.
In early June 2015 Mumford and Dana Gelfand, Associate Vice
Chancellor of Enrollment Operations, began working with Madiha
2 - OPINION AND ORDER
Chughtai, Human Resources Manager, to draft a Disciplinary
Counseling Memorandum regarding Plaintiff’s job performance.
During the time Mumford, Gelfand, and Chughtai were working
on the Disciplinary Counseling Memorandum Gelfand received
reports from several staff members that Plaintiff may have been
manipulating “call data.”
Chughtai’s attention.
Gelfand brought the reports to
Chughtai recommended issuing the
Disciplinary Counseling Memorandum to Plaintiff while Gelfand
reviewed the relevant call data.
On June 10, 2015, Mumford and Gelfand issued a Disciplinary
Counseling Memorandum to Plaintiff regarding “unsatisfactory job
performance,” which constituted a “written notice of disciplinary
action.”
Decl. of Matthew Tripp, Ex. 15 at 1.
Mumford and
Gelfand set out a number of deficiencies in Plaintiff’s
performance that included giving inaccurate information to
students that caused them to complain and that required other
staff members to provide the students with correct information
and guidance; failing “to be available for warm transfers”; being
overdue on following up with a significant percentage of his
“student pipeline”; failing to meet the team’s average call
metrics for wait time, warm transfers, call volume, and call
time; failing to complete his weekly evaluation “scorecards”; and
his unsatisfactory attendance.
Mumford and Gelfand provided
Plaintiff with a plan for corrective action that required him to
3 - OPINION AND ORDER
“ensure accurate information is provided in every student
interaction”; to use the sales framework established by the
department and to “score a minimum of 2 on all of the skills
evaluated”; to improve to “at least the team average for wait
time, warm transfers, call volume, and call time”; and to adhere
to his attendance requirements.
Tripp Decl., Ex. 15 at 4.
Mumford and Gelfand also advised Plaintiff that they had been
“notified of concerns that some staff members have with your
communication.
Demetrye, you are expected to use professional
language and display a professional and respectful demeanor at
all times in the workplace.
We also ask that you respect other
coworkers who do not want to engage in discussions.”
Id.
Finally, Mumford and Gelfand advised Plaintiff that
[t]his written warning serves as notice that your
pattern of unsatisfactory job performance must
improve immediately. During the next 30 days,
we'll be carefully monitoring your performance,
and we'll take appropriate action during or
following this period in accordance with the
degree of progress you make. If you do not
immediately improve your job performance and
sustain it at an acceptable level, or if there are
any other job performance problems, this may
result in further disciplinary action, including
termination. Failure to comply with the plan for
corrective action or any future violations of
Brandman's policies, job requirements and/or
procedures may result in further disciplinary
action including termination.
Tripp Decl., Ex. 15 at 5.
Plaintiff did not include any comments
in the employee comments section of the Memorandum.
and Mumford signed the Memorandum on June 10, 2015.
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Plaintiff
Gelfand investigated the issue of Plaintiff’s alleged
manipulation of call metrics and discovered evidence that,
according to Gelfand, established Plaintiff was intentionally
manipulating his call data to make his performance appear to be
better.
Specifically, Gelfand discovered Plaintiff had made 39
calls to a “nonviable number”; “failed to disconnect from some
calls when they were over, which would increase [Plaintiff’s]
talk time”; and “dispositioned at least one call ‘successful,’
which represents that he actually spoke to the student, when he
had in fact only left a voicemail.”
JSAF at ¶ 41.
Mumford was on vacation from June 29, 2015, through July 10,
2015.
Mumford instructed Plaintiff to send “daily recaps” to
Gelfand while Mumford was gone, and Plaintiff, therefore, sent
his daily recaps to Gelfand the week of June 29, 2015.
Mumford,
however, did not advise Plaintiff to send his daily recaps to
another individual if Gelfand was not in the office.
Thus,
because Gelfand was out of the office the week of July 6, 2015,
Plaintiff did not send his daily recaps to anyone that week.
On July 21, 2015, Mumford and Gelfand sent a second
Disciplinary Counseling Memorandum to Plaintiff in which they
reiterated their concerns with Plaintiff’s performance as set out
in the June 10, 2015, Disciplinary Counseling Memorandum and also
advised Plaintiff:
Upon further investigation, we have determined
that you have not been accurately dispositioning
5 - OPINION AND ORDER
your calls. Data that was pulled showed that you
dispositioned calls as “successful”, when you
actually left voicemails. In addition, there were
approximately 39 calls made to one not viable
number over a period or a few weeks which
increased your call metrics. Furthermore, there
were calls that you made where you did not
disconnect and the call time recorded for that
entire length of time, increasing your call time.
Given this additional information, the nature of
the Written Notice of disciplinary Action is being
modified to a Final Written Notice.
Tripp Decl., Ex. 8 at 1.
Mumford and Gelfand also noted
Plaintiff’s “job performance has not adequately improved [in] the
areas identified” in the June 10, 2015, Memorandum.
Id. at 2.
Specifically, Plaintiff failed to meet his student-conversion
target; failed to meet his “score target” for “quality student
interactions/consultative sales”; and failed to meet the team
average for wait time, warm transfers, call volume, and call
time.
Id.
Finally, they noted “[o]n 6/25 you had to be reminded
by your AD to send the daily recap as you had not submitted it 3
days in a row.
On 7/13 you were notified that you neglected to
submit it for a full week during the absence of your AD.”
Id.
The Disciplinary Counseling Memorandum included a plan for
corrective action and noted:
This final written warning serves as notice that
your pattern of unsatisfactory job performance
must improve immediately. If you do not
immediately improve your job performance and
sustain it al an acceptable level, or if there are
any other job performance problems, your
employment with Brandman will be terminated.
Failure to comply with the plan for corrective
action or any future violations of Brand man's
6 - OPINION AND ORDER
policies, job requirements and/or procedures will
result In termination.
Id. at 3.
After reviewing the Memorandum, Plaintiff disputed in
the section reserved for employee comments that he dispositioned
calls as successful when he actually merely left voicemails and
that he made 39 calls to a “nonviable number.”
Plaintiff also
stated he would like to see the evidence supporting the
allegations that he disputed.
As to the allegations that he
failed to submit his daily recaps for the week of July 13, 2015,
Plaintiff pointed out that he had not been “assigned anyone to
submit [his] recap” for that week.
Tripp Decl., Ex. 8 at 3.
Plaintiff and Mumford signed the Memorandum with Plaintiff’s
comments on July 21, 2015.
Chughtai states in her Declaration that Plaintiff “made the
same complaints” to her that Plaintiff set out in the employee
comment section of the July 21, 2015, Memorandum, and she
“conducted a thorough inquiry into [his] complaints.”
Madiha Chughtai at ¶ 8.
Decl. of
Ultimately,
[a]lthough it was clear that [Plaintiff] had made
39 calls to a nonviable number, my investigation
determined that the number was on a student record
in the dialer system each time Wilkins called it.
I removed the reference to the 39 calls from the
final counseling memorandum in order to give
[Plaintiff] the benefit of the doubt that he did
not know how to change the nonviable number in the
system.
Chughtai Decl. at ¶¶ 9-10.
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On August 4, 2015, Mumford and Gelfand issued a revised
final Disciplinary Counseling Memorandum to Plaintiff in which
they reiterated the same points set out in the July 21, 2015,
Memorandum regarding Plaintiff’s performance except as to the 39
alleged calls.
Specifically, Mumford and Gelfand now noted:
Upon further investigation, we have determined
that you have not been accurately dispositloning
your calls. Data that was pulled showed that you
dispositioned calls as “successful”, when you
actually left voicemalls. Furthermore, there were
calls that you made where you did not disconnect
and the call time recorded for that entire length
of time, increasing your call time. Given this
additional information, the nature of the Written
Notice of disciplinary Action is being modified to
a Final Written Notice.
Decl. of [Plaintiff’s] Counsel, Ex. 16 at 1.
In response to the August 4, 2015, Disciplinary Counseling
Memorandum Plaintiff provided a Memorandum to the “Brandman
Management Team” on August 6, 2015, in which he stated:
From my written notice, until my now final notice.
I've experienced nothing but bias and a lack of
ethics. Holly Williams and Julie Noyes two
Caucasian employees were both put on written
notices (I believe one was on her final) and taken
off in a short manner of time. A fellow coworker,
Chris Wilhite has missed 20+ days of work, has
100+ post due student in status for a few weeks
and hasn't so much as been given a written notice.
So, in this instance I feel like I'm being singled
out and discriminated against.
I feel there is a double standard, which makes for
a lack of ethics. As an Enrollment Coach at
Brandman University, our job is to see if Brandman
is a good fit for prospects and to help them on
the path to becoming admitted and registered. As
of 8/5/15 I have 25 students registered for the
8 - OPINION AND ORDER
Fall I session. Five of my coworker are beneath
that number of registers. I feel that my numbers
speaks for itself. I understand the purpose of
the call metric, which is to make sure we are
working efficiently and effectively. I feel
mentioning my call time in my final warning
(especially with other [sic] not meeting their
expectation) is looking for charges against me to
dismiss me. As I just stated, my inquiry to
registered numbers speak for itself. I'm getting
the job done by connecting with student, [sic]
hearing and meeting their needs and moving them
forward.
My written notice has dates that go back to the
time when I was still understanding my role and
job description, a time when someone makes
mistakes because they are learning their duties;
since then I have improved. I was given a plan of
corrective action and have met what was required
of me. I've received more transfer call[s] from
the EA's [sic]. I've kept my Past-Due status to a
minimum. I've sought assistance in answering
students concerns accurately.
On page l of my final written disciplinary, it
states, “data that was pulled showed that you
dispositioned calls "successful”, when you
actually left voicemail. I haven't seen proof of
that. How do I know if that's accurate
information? The 30-39 calls I supposedly made
was removed from the final written disciplinary
because there was no proof. What's to say this
isn't the same error?
On page 2 of the final written warning on the
bottom it states, “On 7 /13 you were notified that
you neglected to submit (daily recap) for a full
week during the absence of your AD.” My AD did
not tell me who to submit my daily recap to. This
was clearly a lack of direction on my AD[‘s] part,
which has been placed on the final warning. I
have the actual email attached to this comment
sheet to verify that.
[Plaintiff’s] Counsel Decl., Ex. 16 at 4-5.
Chughtai received and investigated Plaintiff’s complaints of
9 - OPINION AND ORDER
discrimination.
She reviewed relevant documents and interviewed
Plaintiff, Mumford, and Gelfand as well as Associate Vice
Chancellor of Enrollment Operations Albert Salsa.
On September 11, 2015, Chughtai sent Plaintiff a six-page
memorandum detailing her “investigative outcomes.”
Decl., Ex. 2 at 2.
Chughtai
In particular, Chughtai noted Plaintiff had
expressed concerns that management had issued written warnings to
him for infractions that he believed should have been first
addressed by verbal counseling.
Chughtai, however, explained
Defendant’s policy did not require management to issue verbal
warnings before written warnings, and, in any event, Plaintiff
received direct feedback every week during his “1:1” with his
supervisors in addition to weekly scorecards that included
feedback as far back as April 2015 that Plaintiff needed to
improve his performance.
As to Plaintiff’s allegation that he
was unfairly written up for things that occurred during his
“introductory period,” Chughtai noted management had provided him
with coaching to improve his performance since October 2014, and
“[w]hile some of those issues occurred during your introductory
period, and while this period is a time for you to understand
your role and job description, you are still held to performance
expectations, and any unsatisfactory performance will still be
addressed during an introductory period.”
at 3.
Chughtai Decl., Ex. 2
Chughtai noted her investigation established Plaintiff’s
10 - OPINION AND ORDER
performance had “improved in some metrics, but not others,” and,
therefore, Chughtai could not “substantiate that you are being
held to unfair call time metrics.”
Id. at 4.
Chughtai noted the
reference to the 39 calls “was removed from [Plaintiff’s] final
written notice . . . not because there was no evidence, but
because leadership wanted to give [Plaintiff] the benefit of the
doubt that [he] did not know to change the number in the student
record.”
Id. at 5.
In any event, Gelfand and Mumford “spot
checked a few records randomly on August 12, 2015, and quickly
found three records where you had dispositioned a call as a
voicemail when in fact you left no voicemail at all.”
Id.
In
addition, Gelfand and Mumford found other “calls that had
continued after the student hung up, thus extending call time
. . . .
[Plaintiff] indicated that the vast majority of other
staff members engage in the same misconduct, but [Chughtai’s]
investigation was unable to find any such other examples.”
Id.
Chughtai found Plaintiff’s complaint about failing to have
someone to send his daily reports to for the week of July 13,
2015, was substantiated, but Chughtai noted Plaintiff also “did
not submit the required daily recap for three days in June, and
on 6/25 had to be reminded by your supervisor to send the daily
recap.”
Chughtai stated she could not “substantiate any
legitimate reason to excuse your failure to send daily reports on
those days.”
Id.
Chughtai also found other assertions by
11 - OPINION AND ORDER
Plaintiff about being discriminated against were unsubstantiated.
For example, according to Plaintiff two Caucasian employees were
taken off written notices “in a short manner of time” and that
another coworker was not put on written notice even though he had
missed “20+ days of work [and] has 100+ past due student in
status.”
Chughtai noted she was not able to discuss disciplinary
actions taken against other staff members, but she had fully
investigated Plaintiff’s concerns and did not find any violations
or inconsistencies in the application of Defendant’s policies to
the employees at issue.
Finally, Chughtai noted Plaintiff had
“made improvements in several of the areas of [his] performance,
including [his] registered students; however, [his] call quality
and call time are still low and often below the team average, and
[he] continue[s] to not implement the consultative sales
framework.”
Chughtai Decl., Ex. 2 at 7.
Chughtai noted
Defendant would revise Plaintiff’s final written disciplinary
memorandum to remove the references to Plaintiff’s failure to
provide daily recaps for the week of July 13, 2015, and to the 39
calls made to the “unviable” number.
Nevertheless, Chughtai
concluded “there was no evidence to support that any unlawful
discrimination has occurred because of race or other reason
protected by law or Brandman policy.”
Id.
In November 2015 Plaintiff reported to Christopher Larson,
Director of Quality Assurance, that two coworkers had made
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race-based comments to Plaintiff.
JSAF at ¶ 75.
Specifically,
Plaintiff reported to Larson that during a training meeting the
enrollment coaches viewed a video clip of an African-American
child comedian known as Kid President.
Dunkin said, "Oh, look.
Dunkin:
Enrollment Coach Nathan
Look at Demetrye.”
“Why, because he's black?”
Plaintiff asked
Dunkin responded:
“No
because he's just a little -- cute little kid, just, you know,
that's it.
Just simple.”
JSAF at ¶ 75.
Plaintiff also reported
to Larson that Plaintiff had been “walking through a door with a
dark shirt on,” and Enrollment Coach Anthony Potter said to him:
“You can't hide behind the door.
behind this white wall.”
You're black.
JSAF at ¶ 75-76.
You can't hide
Larson told Plaintiff
that he would talk to Duncan and Potter, “take care of the
situation, and follow up with [Plaintiff].”
JSAF at ¶ 77.
Larson met with Duncan and Potter and counseled them about
making comments that Plaintiff found offensive.
Potter subsequently apologized to Plaintiff.
Duncan and
JSAF at ¶ 80.
Plaintiff was “satisfied with the response and felt that the
issue had been resolved.”
JSAF at ¶ 81.
Larson an email in which he stated:
Plaintiff then sent
“Again, I want to thank you
for listening and taking care of the issues I had with Nathan and
Tony regarding the racial comments they've made.
I appreciate
you immediately delving into this issue, and rectify[ing] it.”
JSAF at ¶ 82.
13 - OPINION AND ORDER
On January 28, 2016, Plaintiff was talking to Enrollment
Coach Scott Kobold.
Senior Enrollment Analyst Stephan Farnsworth
“leaned in and asked, ‘what are you guys talking about?’”
at ¶ 86.
JSAF
Plaintiff “whispered to Farnsworth and Kobold, with a
smile on his face:
‘I have a bomb.’”
JSAF at ¶ 87.
Plaintiff
then said he was joking and that he “shouldn’t have said that.”
JSAF at ¶ 88.
Plaintiff opened his bag and his desk drawers to
show Farnsworth and Kobold that he did not have a bomb and was
joking.
Farnsworth summarized the conversation in an email recap
provided to Larsen at 2:28 p.m. on January 28, 2016:
As I walked back into my office and away from
[Plaintiff’s] desk, [Plaintiff] quietly said to me
“hey, Steve, come here”, I walked back over. He
said to me, with a small grin on his face, “I’m
going to bomb this place”. Immediately shocked by
what I heard I said back to him “what?”, he said
“I'm going to bomb this place . . . .” All in a
quiet tone as if to not scare people. Again, I
said to him “what? Are you kidding?” and he said
back: “no, at 3pm”. I gave him a concerned
glance while shaking my head, still with a
half-smile since I was so caught off guard and we
had just been joking. He then immediately sat
back in his chair, shook his head from side to
side and said “I’m serious man, I'm serious”. I
think that when he said this, he intended to say
he was joking, but accidentally said he was
serious. Regardless of intent at that point I
asked him if I needed to get HR involved, to which
he said “no, no I'm kidding, see? Look” he opened
his backpack, drawers at his desk, etc. to
demonstrate he had nothing with him that should be
treated as a threat. I asked him shortly after if
I should get the building concierge, he again said
“I'm kidding man”, but then he went on to say
“don't worry Steve, I’ll give you 5 minutes notice
so you can get out”.
14 - OPINION AND ORDER
Chughtai Decl., Ex. 3 at 1.
Kobold described the conversation as
follows in an email sent to Larson at 2:51 p.m. on January 28,
2016:
Sometime this afternoon around 12:30pm, I was
engaged in a conversation that included myself,
Steve Farnsworth and [Plaintiff]. The dialogue at
this point was primarily between Steve and
[Plaintiff] and was of a light nature; jokes and
smiles were being exchanged. Out of the blue,
[Plaintiff] made a comment saying something to the
effect of, “I'm going to bomb this place at 3
o'clock”. Steve responded by saying, “Should I be
calling HR?”. [Plaintiff] then said something
like, “No, I'm just joking. You can check my bag
and my desk. I don't have anything”.
Chughtai Decl., Ex. 4 at 1.
After the conversation concluded,
Farnsworth went to the kitchen to get his lunch and returned to
his office.
Farnsworth testified at deposition that “the
potential gravity [of the conversation] started to set in with
[him]” after he returned to his desk.
Tripp Decl., Ex. 11 at 4.
At that point Larson came into Farnsworth’s office and Farnsworth
“realized [he] needed someone to talk to about it,” so he told
Larson about the conversation.
Id.
Larson and Farnsworth contacted their supervisor Albert
Sals,.
Salsa and Larson concluded Larson should contact Salsa’s
supervisor, Executive Vice Chancellor for Enrollment and Student
Affairs Saskia Knight, as well as Defendant’s Human Resources
Department.
Larson did so, and Knight contacted Associate Vice
Chancellor of Human Resources Learning and Development Sam
Bresler.
Bresler recommended Larson and Farnsworth contact the
15 - OPINION AND ORDER
building manager to determine the policy in this situation.
did so, and the building manager called 911.
They
Farnsworth and
Larson explained the situation to the 911 dispatcher, “including
the fact that [Plaintiff] said his comment was a joke.”
JSAF at
¶ 98.
A short time later, two police officers came to
the coaching center, interviewed [Plaintiff],
asking him “Did you make a joke about a bomb?”
He responded that he was just kidding. And they
said, “Well, sir, you know, because of 9-11,
people need to take these things seriously.” Then
[Plaintiff] consented to a search of his bag. The
officers searched his bag and, according to
[Plaintiff], said: “You know what, you seem to be
an okay guy, so you can't go back to work because
people feel unprotected here.” The officers
escorted him off the premises.
JSAF at ¶ 99.
After Plaintiff left the premises, “management
told the staff what had happened.”
JSAF at ¶ 100.
Larson noted
in his recap of the incident written on January 28, 2016, that
after he advised the staff what had happened, “[t]wo staff
members then came to [him] to say they were uneasy with the
situation and uncomfortable being in the office after a bomb
threat even when in jest.”
Chughtai Decl., Ex. 5 at 1.
Accordingly, at 2:15 p.m. Larson gave the coaching-center staff
the option to leave the office early that day, “and everyone
did.”
JSAF at ¶ 101.
Defendant closed the coaching center for
the rest of the day.
Chughtai began an investigation into Plaintiff’s bomb
comments.
She interviewed Plaintiff; reviewed written statements
16 - OPINION AND ORDER
from Farnsworth, Kobold, and Larson; and conducted follow-up
interviews with Farnsworth and Kobold.
JSAF at ¶¶ 103-06.
Farnsworth and Kobold made clear that they believed Plaintiff was
most likely joking when he made his bombing comment.
Farnsworth,
however, stated he “felt he had a ‘professional responsibility’
to report the statement because he was ‘putting [himself] and the
20 other people that were [t]here at risk by not saying
something.’”
JSAF at ¶ 116.
Kobold explained he believed
Plaintiff’s comment was a bad joke, but “it was ‘something that
you never want to say in an office setting . . . especially
post-911.’”
JSAF at ¶ 118.
On February 2, 2016, Chughtai sent Bresler a memorandum
outlining her investigation and her conclusions and advised
Bresler that Plaintiff’s comments violated Defendant’s Workplace
Violence Policy, which provides Defendant has “zero tolerance for
actual or threatened violence against co-workers, faculty,
students, visitors, vendors, or any other persons.”
of Matthew Tripp, Ex. 9 at 6.
Suppl. Decl.
Chughtai noted Plaintiff’s bomb
comment had been taken seriously enough for Larson to “escalate[]
it to [Defendant’s] upper management,” and building security
“escalated it to the police authorities who took it seriously
enough to escort [Plaintiff] out of the building.”
Id.
In
addition, “staff were concerned and alarmed enough that many of
them requested to leave for the day.
17 - OPINION AND ORDER
The ECC closed for the day
and the staff went home.”
Id.
Chughtai also noted Plaintiff
“has been on a final warning since September 2015 for performance
related issues.”
Id.
Ultimately, Chughtai recommended Defendant
terminate Plaintiff’s employment.
Bresler agreed with Chughtai’s
recommendation and terminated Plaintiff’s employment by letter on
February 3, 2016.
JSAF at ¶ 123.
On January 16, 2017, Plaintiff filed a complaint with the
Oregon Bureau of Labor and Industries (BOLI) in which he alleged
Defendant terminated him on the basis of his race and/or in
“retaliation for making protected complaints of discrimination.”
Tripp Decl., Ex. 13 at 2.
On February 11, 2016, Defendant filed a response to BOLI’s
request for separation information in which Defendant specified
it terminated Plaintiff “due to performance” and because he
“failed to follow instructions/policy/contract.”
[Plaintiff’s]
Counsel Decl., Ex. 71 at 2-3.
On July 14, 2017, Plaintiff filed a Complaint in this Court
against Defendant alleging claims for
(1)
Race discrimination in violation of Title VII, 42
U.S.C. § 2000e-2; 42 U.S.C. § 1981; and Oregon Revised
Statutes § 659A.030(1)(a) and (b) and
(2)
Retaliation against Plaintiff for opposing
discrimination in violation of Title VII, 42 U.S.C.
§ 2000e-3; Oregon Revised Statutes § 659A.030(f); and
18 - OPINION AND ORDER
Oregon Revised Statutes § 659A.199.
On May 7, 2019, Defendant filed a Motion for Summary
Judgment as to all of Plaintiff’s claims.
The Court took this
matter under advisement on June 11, 2019.
STANDARDS
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).
Civ. P. 56(a).
See also Fed. R.
The moving party must show the absence of a
genuine dispute as to a material fact.
673 F.3d 1218, 1223 (9th Cir. 2012).
Emeldi v. Univ. of Or.,
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and point to "specific facts
demonstrating the existence of genuine issues for trial."
In re
Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010).
“This burden is not a light one. . . .
The non-moving party must
do more than show there is some 'metaphysical doubt' as to the
material facts at issue.”
Id. (citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
19 - OPINION AND ORDER
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).
Sluimer
"Summary
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)(citing Sherman Oaks Med. Arts
Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598
(9th Cir. 1982)).
"A non-movant's bald assertions or a mere scintilla of
evidence in his favor are both insufficient to withstand summary
judgment."
F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir.
2009)(citation omitted).
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)
(citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149
(9th Cir. 1998)).
The substantive law governing a claim or a defense
determines whether a fact is material.
Miller v. Glenn Miller
Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
If the
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
20 - OPINION AND ORDER
Id.
DISCUSSION
As noted, Defendant moves for summary judgment as to both of
Plaintiff’s claims.
I.
First Part of Plaintiff’s First Claim for Race
Discrimination in Violation of Title VII, 42 U.S.C.
§ 2000e-2; 42 U.S.C. § 1981; and Oregon Revised Statutes
§ 659A.030(1)(a) and (b)
Plaintiff alleges in the first part of his First Claim that
Defendant discriminated against him on the basis of his race in
violation of Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C. § 1981;
and Oregon Revised Statutes § 659A.030(1)(a) and (b) when
Defendant terminated Plaintiff’s employment and when Defendant
issued the Disciplinary Counseling Memoranda to Plaintiff.
Defendant, in turn, asserts it is entitled to summary
judgment on the first part of Plaintiff’s First Claim on the
grounds that (1) plaintiff cannot establish a prima facie case of
discrimination, (2) Defendant had legitimate, nondiscriminatory
reasons for issuing the counseling memoranda to Plaintiff and
terminating Plaintiff’s employment, and (3) Plaintiff cannot
establish a genuine dispute of material fact exists as to whether
Defendant’s reasons were pretext for discrimination.
A.
Standards
The Ninth Circuit recently reiterated “on a motion for
summary judgment, [the court must] evaluate [a plaintiff’s] Title
VII racial . . . discrimination claim[] using the three-part
21 - OPINION AND ORDER
burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).”
Pavel v. Univ. of Oregon, No. 18-
35287, 2019 WL 2295867, at *2 (9th Cir. May 29, 2019).
Under the
McDonnell Douglas framework
a plaintiff may establish a prima facie case of
discrimination by demonstrating that: (1) he is a
member of a protected class; (2) he was qualified
for his position and performing satisfactorily;
(3) he experienced an adverse employment action,
and (4) similarly situated individuals outside his
protected class were treated more favorably, or
other circumstances surrounding the adverse
employment action give rise to an inference of
discrimination.
Id. (citing Hawn v Exec. Jet Mgmt. Inc., 615 F.3d 1151, 1156 (9th
Cir. 2010)).
“If a plaintiff establishes a prima facie showing
of discrimination, ‘the burden of production, but not persuasion,
then shifts to the [defendant] to articulate some legitimate,
non-discriminatory reason for the challenged action.’”
(quoting Hawn, 615 F.3d at 1155).
Id.
If a defendant articulates a
legitimate, nondiscriminatory reason for the challenged action,
the plaintiff “‘must then raise a triable issue of material fact
as to whether the defendant’s proffered reasons for [the
plaintiff’s] termination are mere pretext for unlawful
discrimination.’”
Id. (quoting Hawn, 615 F.3d at 1155).
“Claims brought under 42 U.S.C. § 1981 and ORS 659A.030 are
analyzed under the same legal standards” as those brought
pursuant to Title VII.
Gollah v. City of Millersburg, No. 6:18-
CV-01412-MC, 2018 WL 6183268, at *2 (D. Or. Nov. 27, 2018)(citing
22 - OPINION AND ORDER
DeWeese v. Cascade Gen. Shipyard, No. 08-cv-860-JE, 2011 WL
3298421, at *7 (D. Or. May 2, 2011)(“The same legal standards
apply when analyzing claims brought pursuant to” ORS 659A.030,
42 U.S.C. § 1981, and Title VII.)).
See also Manatt v. Bank of
Am., NA, 339 F.3d 792, 797 (9th Cir. 2003)(“We also recognize
that those legal principles guiding a court in a Title VII
dispute apply with equal force in a § 1981 action.”).
B.
Plaintiff’s Termination
As noted, Plaintiff asserts in the first part of his
First Claim that Defendant discriminated against him on the basis
of his race in violation of Title VII, 42 U.S.C. § 2000e-2; 42
U.S.C. § 1981; and Oregon Revised Statutes § 659A.030(1) when
Defendant terminated his employment.
Defendant asserts Plaintiff
has not established a prima facie case of discrimination; that
Defendant had legitimate, nondiscriminatory reasons to terminate
Plaintiff’s employment; and that Plaintiff has not established
Defendant’s reasons were pretextual.
1.
Plaintiff has not established a prima facie case
of disparate treatment as to his termination.
Defendant asserts Plaintiff cannot establish a
prima facie case of disparate treatment because Plaintiff cannot
establish there was any similarly-situated employee outside of
his protected class who was treated more favorably.
“To satisfy
[the similarly-situated employee] element, [the plaintiff] must
23 - OPINION AND ORDER
identify employees outside [his] race . . . who were similarly
situated to [him] ‘in all material respects’ but who were given
preferential treatment; they must ‘have similar jobs and display
similar conduct.’”
Campbell v. Haw. Dep't of Ed., 892 F.3d 1005,
1015 (9th Cir. 2018)(quoting Nicholson v. Hyannis Air Serv.,
Inc., 580 F.3d 1116, 1125 (9th Cir. 2009)).
The Ninth Circuit
has held the “burden at [the prima facie] stage is ‘not
onerous’[; however, the plaintiff] must still produce some
evidence to meet [his] burden.”
Franett-Fergus v. Omak Sch.
Dist. 19, 743 F. App'x 855, 857 (9th Cir. 2018)(quoting Lyons v.
England, 307 F.3d 1092, 1112 (9th Cir. 2002)).
Defendant asserts Plaintiff has not pointed to any
employee outside of his protected class who was treated more
favorably when he or she made a significant threat that concerned
other employees to the extent that they reported it to
management, that caused other employees to express concern about
remaining in the office, that caused the office to be closed for
half a day, and who was also under a Disciplinary Counseling
Memorandum.
In his Response Plaintiff points to Megan Howell,
another Enrollment Coach, who, according to Plaintiff, “jokingly
threatened her coworkers” by saying she was going to kill them
while drawing her hand across her throat, but Howell was not
terminated.
It is undisputed, however, that employees did not
24 - OPINION AND ORDER
report Howell’s behavior to management or indicate her statements
and actions caused anyone to feel they had a “professional
responsibility” to report the statement because they could be
“putting [themselves] and the 20 other people that were [at the
office] at risk.”
JSAF at ¶ 116.
The Ninth Circuit held in Hawn
that conduct by an employee that results in complaints to
management is not substantially similar to conduct by an employee
that does not result in complaints.
further noted:
615 F.3d at 1160.
The court
“We have distinguished misconduct by one employee
from misconduct by another employee on the basis of whether it
prompted complaints or consternation by other employees.”
Id.
Specifically, in Hawn the Ninth Circuit noted it held in Meyer v.
California and Hawaiian Sugar Company that when “there was no
evidence that the male employees' remarks had ‘provoked anything
comparable to the vigorous reaction’ that resulted from the
plaintiff's comments, the other incidents were ‘not such
parallels to her case as to raise a genuine issue of pretext.’”
615 F.3d at 1160 (quoting Meyer, 662 F.3d 637, 640 (9th Cir.
1981)).
The court also noted in Hawn that “[t]he presence of
complaints has also been deemed a valid distinguishing factor by
other circuits.”
615 F.3d at 1160 (citing Yeager v. City Water &
Light Plant, 454 F.3d 932, 934 (8th Cir. 2006), and Morrow v.
Wal–Mart Stores, Inc., 152 F.3d 559, 560 (7th Cir. 1998)).
In addition, it is undisputed that Howell’s
25 - OPINION AND ORDER
alleged actions and statements did not cause police to come to
the coaching center or cause the coaching center to close early.
The Court concludes the fact that the nature of Plaintiff’s
comments caused employees to report them to management and caused
other employees to report to management that they did not feel
comfortable remaining at work reflects the conduct of Howell and
Plaintiff was not “substantially similar.”
Finally, even if the alleged statements and
conduct of Howell and Plaintiff were substantially similar, the
record reflects Howell did not have an extensive history of poor
performance, any disciplinary counseling memoranda, or any
written discipline.
On this record the Court concludes Plaintiff has
not established a prima facie case of disparate treatment as to
his termination because Plaintiff has not shown there was any
similarly-situated employee outside of his protected class who
was treated more favorably.
2.
Defendant has articulated a legitimate,
nondiscriminatory reason for terminating
Plaintiff’s employment.
Even if Plaintiff established a prima facie case
of disparate treatment as to his termination, Defendant asserts
it had legitimate, nondiscriminatory reasons for terminating
Plaintiff based on Plaintiff’s bomb threat and poor performance.
As noted, when “a plaintiff establishes a prima
26 - OPINION AND ORDER
facie showing of discrimination, ‘the burden of production, but
not persuasion, then shifts to the [defendant] to articulate some
legitimate, non-discriminatory reason for the challenged
action.’”
Pavel, 2019 WL 2295867, at *2 (quoting Hawn, 615 F.3d
at 1155).
Here Defendant asserts it terminated Plaintiff’s
employment for the bomb-threat comments and for his poor
performance, which are both legitimate, nondiscriminatory reasons
to terminate employment.
See, e.g., Nguyen v. Dep’t of Navy, 412
F. App’x 926, 929 (9th Cir. 2011)(“Even assuming [the plaintiff]
established a prima facie case, the record shows [the defendant]
had legitimate, nondiscriminatory and nonretaliatory reasons for
disciplining and ultimately removing [the plaintiff], including
her substandard communications skills, low performance ratings
and complaints from her customers, [and] poor attendance.”);
Johnson v. AT&T Corp., 422 F.3d 756, 762 (8th Cir. 2005)
(concluding the defendant’s belief that the plaintiff had
threatened to bomb its facility was a legitimate,
nondiscriminatory reason to terminate the plaintiff’s employment
even if the defendant was mistaken in its belief).
On this record the Court concludes Defendant has
articulated legitimate, nondiscriminatory reasons for terminating
Plaintiff.
3.
Plaintiff has not established Defendant’s reasons
were mere pretext.
As noted, when a defendant articulates legitimate,
27 - OPINION AND ORDER
nondiscriminatory reasons for the challenged action, the
plaintiff “‘must then raise a triable issue of material fact as
to whether the defendant’s proffered reasons for [the
plaintiff’s] termination are mere pretext for unlawful
discrimination.’”
Pavel, 2019 WL 2295867, at *2 (quoting Hawn,
615 F.3d at 1155).
Plaintiff asserts Defendant’s stated reasons for
terminating him were mere pretext because Defendant provided
inconsistent explanations, Defendant did not follow its own
protocol when it terminated Plaintiff’s employment, and Defendant
selectively enforced its Workplace Violence Policy.
a.
Defendant’s Explanations for Terminating
Plaintiff’s Employment
Plaintiff asserts the inconsistency of
Defendant’s explanations for terminating Plaintiff’s employment
are evidence that those explanations are mere pretext.
Specifically, Plaintiff asserts Defendant told Plaintiff at the
time of his termination that he was terminated due to his
violation of Defendant’s Workplace Violence Policy, but Defendant
told BOLI that Plaintiff was terminated for performance reasons
and Chughtai testified at deposition that Plaintiff was
terminated for both reasons.
When Chughtai recommended Plaintiff’s
termination in February 2016, the record reflects Chughtai’s
report noted Plaintiff’s bomb comments as well as the fact that
28 - OPINION AND ORDER
Plaintiff “ha[d] been on a final warning since September 2015”
for performance-related issues.
In addition, Defendant’s
February 11, 2016, response to BOLI’s request for separation
information specified Plaintiff was terminated “due to
performance” and his failure “to follow instructions/policy/
contract.”
[Plaintiff’s] Counsel Decl., Ex. 71 at 2-3.
The
record, therefore, reflects Defendant’s reasons for terminating
Plaintiff’s employment have been consistent:
comments and his inadequate performance.
Plaintiff’s bomb
The Court, therefore,
concludes on this record that Plaintiff has failed to establish
the alleged discrepancies that provide an inference of pretext.
b.
Defendant’s Protocol in Terminating
Plaintiff’s Employment
Plaintiff also asserts Defendant’s stated
reasons for Plaintiff’s termination are mere pretext because
Defendant did not follow its own protocol when it terminated
Plaintiff.
The Ninth Circuit has held:
“‘A plaintiff
may . . . raise a triable issue of pretext through evidence that
an employer’s deviation from established policy or practice
worked to [his] disadvantage.’”
Merrick v. Hilton Worldwide,
Inc., 867 F.3d 1139, 1149 (9th Cir. 2017)(quoting Earl v. Nielsen
Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011)).
“But
such a deviation must be considered in context and may not always
be sufficient to infer a discriminatory motive.”
29 - OPINION AND ORDER
Merrick, 867
F.3d at 1149 (citation omitted).
Plaintiff asserts Chief Financial Officer and
Executive Vice Chancellor of Finance and Administration Phillip
Doolittle was not consulted about the decision to terminate
Plaintiff’s employment until after Plaintiff was terminated,
which is in violation of Defendant’s policies.
Plaintiff relies
on a February 3, 2016, email from Doolittle to Bresler in which
Doolittle states:
Dina advised me on the personnel action being
taken in Portland. It is probably the right
action, but I thought that you and I had
agreed from an internal protocol perspective
that all employee terminations would be
reviewed by me before implementation.
Decl. of Phillip Doolittle, Ex. 1 at 2.
Defendant, however,
notes Doolittle also states in his February 3, 2016, email:
“I
am hearing . . . that we are closing one of our campuses (LA) and
laying off two of [sic] employees.
Again, I have not been
briefed on the termination planning for these two employees.”
Doolittle Decl., Ex. 1 at 2.
In addition, Bresler testified at
deposition that there were “one or two instances where
[Doolittle] might have been on vacation, or otherwise
unavailable” and Defendant terminated employees without
consulting Doolittle first.
Tripp Suppl. Decl., Ex. 8.
Thus,
although it may have been internal protocol, the record reflects
Doolittle was not consulted before every employee termination.
In addition, Defendant asserts the deviation
30 - OPINION AND ORDER
from Defendant’s internal protocol did not “work to [Plaintiff’s]
disadvantage” because Doolittle states in his February 3, 2016,
email that he “did not disagree with the decision to terminate
[Plaintiff’s] employment” and it was “probably the right action.”
Doolittle Decl. at ¶ 4; Doolittle Decl., Ex. 1 at 2.
Thus, even
if Doolittle had been consulted in advance of Plaintiff’s
termination, Defendant still would have terminated Plaintiff.
The Court, therefore, concludes on this
record that Defendant’s failure to follow internal protocol when
“considered in context” does not support an inference that
Defendant’s stated reasons for terminating Plaintiff’s employment
were mere pretext.
c.
Defendant’s Selective Enforcement of Its
Workplace Violence Policy
Plaintiff alleges Defendant selectively
enforced its Workplace Violence Policy, which raises an inference
that Defendant’s stated reasons for terminating Plaintiff’s
employment were mere pretext.
Defendant’s Workplace Violence Policy
provides:
[T]he University has established a policy
that provides "zero tolerance" for actual or
threatened violence against co-workers,
faculty, students, visitors, vendors, or any
other persons who are either on our premises
or have contact with employees in the course
of their duties.
* * *
31 - OPINION AND ORDER
Threatening behavior may include but is not
limited to:
•
•
•
•
•
•
•
•
Throwing objects
Making a verbal threat to harm another
individual or destroy property
Making menacing gestures
Verbalizing grudges against co-workers
Attempting to intimidate individuals
Behavior indicating that the individual
may pose a danger either to himself or
herself or to others
Engaging in shouting, threatening
gestures or physical contact,
Bringing firearms or weapons of any kind
onto the premises.
Employees who become aware of any threat or
act of workplace violence must immediately
report the incident to a supervisor and to
Human Resources. If an employee feels at
risk, he or she should contact local law
enforcement authorities by dialing 911.
Chughtai Dep., Ex. 8 at 1 (emphasis added).
Plaintiff alleges the record reflects there
were multiple violations of Defendant’s Workplace Violence Policy
by Caucasians that did not result in discipline.
In fact,
Plaintiff points to testimony that individuals outside of
Plaintiff’s class were not disciplined for violating the
Workplace Violence Policy when they threw balls, bean bags, and
paper airplanes in the workplace; brought mace into the office;
and threatened to kill another employee.
Defendant notes its Workplace Violence Policy
states threatening behavior may include throwing objects or
bringing weapons to work.
32 - OPINION AND ORDER
“May” indicates the context in which
those things occur is important.
The record reflects people in
Plaintiff’s workplace threw balls, beanbags, and paper airplanes
only when playing games.
at 26.
See Kobold Dep. at 14-15; Mumford Dep.
In addition, there is not any indication in the record
that any employee complained to management or reported feeling
unsafe due to employees throwing balls, beanbags, or paper
airplanes.
Although some employees brought mace to the office,
the record reflects the employees who did so were “young, female
employees who . . . [took] public transit and [had mace] for
personal safety.”
Mumford Dep. at 25.
The record does not
reflect any employee complained to management or reported feeling
unsafe due to employees bringing mace to the office.
In
addition, the threat to kill another employee was by Megan
Howell, who, according to Plaintiff, “jokingly threatened her
coworkers” by saying she was going to kill them while drawing her
hand across her throat.
As the Court noted earlier, it is
undisputed that employees did not report Howell’s behavior to
management or indicate her statements and actions caused any
employee to feel threatened, nervous, or unsafe.
On this record the Court concludes Defendant
did not selectively enforce its Workplace Violence Policy in such
a way that supports an inference that Defendant’s stated reasons
for terminating Plaintiff were mere pretext.
In summary, the Court concludes on this record that
33 - OPINION AND ORDER
Plaintiff has not “raise[d] a triable issue of material fact as
to whether the defendant’s proffered reasons for [the
plaintiff’s] termination are mere pretext for unlawful
discrimination.”
Accordingly, the Court grants Defendant’s
Motion for Summary Judgment as to the first part of Plaintiff’s
First Claim in which he alleges Defendant discriminated against
Plaintiff on the basis of his race in violation of Title VII, 42
U.S.C. § 2000e-2; 42 U.S.C. § 1981; and Oregon Revised Statutes
§ 659A.030(1)(a) and (b) when it terminated his employment.
C.
Disciplinary Counseling Memoranda
Plaintiff also alleges in the first part of his First
Claim that Defendant discriminated against him on the basis of
his race in violation of Title VII, 42 U.S.C. § 2000e-2; 42
U.S.C. § 1981; and Oregon Revised Statutes § 659A.030(1) when it
issued the Disciplinary Counseling Memoranda.
Defendant asserts it is entitled to summary judgment on
this part of Plaintiff’s First Claim because there is not any
evidence that the Disciplinary Counseling Memoranda constituted
adverse employment actions, that Defendant treated Plaintiff
differently than similarly-situated employees outside of his
class, or that Defendant’s reasons for issuing the Disciplinary
Counseling Memoranda to Plaintiff were mere pretext.
As noted, to establish a prima facie case of employment
discrimination a plaintiff must show he “‘experienced an adverse
34 - OPINION AND ORDER
employment action.’”
Pavel, 2019 WL 2295867, at *2 (quoting
Hawn, 615 F.3d at 1155).
An “adverse employment action is one
that ‘materially affect[s] the compensation, terms, conditions,
or privileges of . . . employment.’”
Bastidas v. Good Samaritan
Hosp. LP, No. 17-16432, 2019 WL 2156430, at *1 (9th Cir. May 16,
2019)(quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th
Cir. 2008)).
Defendant asserts the Disciplinary Counseling Memoranda
issued to Plaintiff were not adverse employment actions because
they did not result in demotions, loss of pay, loss or decrease
in work privileges, or ineligibility for promotion.
Plaintiff
does not address Defendant’s assertion that the Disciplinary
Counseling Memoranda were not adverse employment actions nor does
he identify any way in which the Disciplinary Counseling
Memoranda materially affected the compensation, terms,
conditions, or privileges of his employment.
Courts have concluded “[w]ritten warnings are generally
‘not adverse employment actions where they do not materially
affect the terms and conditions of employment.’”
Neely v. Boeing
Co., No. C16-1791-JCC, 2019 WL 2178648, at *6 (W.D. Wash. May 20,
2019)(quoting Sanchez v. Cal., 90 F. Supp. 3d 1036, 1056 (E.D.
Cal. 2015)).
See also Grimmett v. Knife River Corp.-Northwest,
No. CV–10–241–HU, 2011 WL 841149, at *9 (D. Or. Mar. 8, 2011)
(concluding a written warning was not an adverse employment
35 - OPINION AND ORDER
action in a race-discrimination case); Hoang v. Wells Fargo Bank,
N.A., 724 F. Supp. 2d 1094 (D. Or. 2010)(concluding a warning
letter that did not implement material change in the terms and
conditions of the plaintiff’s employment was not by itself an
adverse employment action).
The Court concludes on this record that Plaintiff has
not established a genuine dispute of material fact exists as to
whether the Disciplinary Counseling Memoranda were adverse
employment actions.
The Court, therefore, concludes Plaintiff
has not established a prima facie case of discrimination with
respect to issuance of the Disciplinary Counsel Memoranda.
Accordingly, the Court grants Defendant’s Motion for
Summary Judgment as to that portion of Plaintiff’s First Claim in
which he alleges Defendant discriminated against him on the basis
of his race in violation of Title VII, 42 U.S.C. § 2000e-2; 42
U.S.C. § 1981; and Oregon Revised Statutes § 659A.030(1) when it
issued the Disciplinary Counseling Memoranda.
In summary, the Court grants Defendant’s Motion for Summary
Judgment as to the first part of Plaintiff’s First Claim for race
discrimination.
II.
Second Part of Plaintiff’s First Claim for Race
Discrimination in Violation of Title VII, 42 U.S.C.
§ 2000e-2; 42 U.S.C. § 1981; and Oregon Revised Statutes
§ 659A.030(1)(a) and (b)
In the second part of Plaintiff’s First Claim for race
discrimination Plaintiff alleges Defendant discriminated against
36 - OPINION AND ORDER
him on the basis of his race in violation of Title VII, 42 U.S.C.
§ 2000e-2; 42 U.S.C. § 1981; and Oregon Revised Statutes
§ 659A.030(1)(a) and (b) when it subjected him to a hostile work
environment.
A.
The Law
“To establish a [hostile work environment] prima facie
case, [the plaintiff] must be able to show that, because of [his]
race . . . [he] was subjected to unwelcome conduct that was
‘sufficiently severe or pervasive to alter the conditions of
[her] employment and create an abusive working environment.’”
Campbell v. Haw. Dep’t of Ed., 892 F.3d 1005, 1016-17 (9th Cir.
2018)(quoting Fuller v. Idaho Dep't of Corr., 865 F.3d 1154, 1161
(9th Cir. 2017)).
“The work environment must be both
subjectively and objectively perceived as abusive.”
892 F.3d at 1017.
Campbell,
The Court must “consider all circumstances,
with a particular focus on issues such as the frequency and
severity of the conduct, whether the conduct was physically
threatening or humiliating, and the extent to which it
unreasonably interfered with [the plaintiff’s] work performance.”
Id.
The plaintiff “must also be able to show that the
[employer] is liable for the harassment that caused the hostile
environment to exist.”
omitted).
Campbell, 892 F.3d at 1017 (quotation
An employer “may be held to account for [employee’s]
37 - OPINION AND ORDER
actions only if, after learning of the harassment, [management]
failed to take prompt corrective measures that were reasonably
calculated to end the harassment.”
Id. (quotation omitted).
The
Ninth Circuit explained in Campbell:
The most significant immediate measure an employer
can take in response to a sexual harassment
complaint is to launch a prompt investigation to
determine whether the complaint is justified
. . . . Such an investigation, itself, is a
warning, not by words but by action that puts all
parties on notice that [the employer] takes such
allegations seriously and will not tolerate
harassment in the workplace. Even where a
complaint is found to be true, sometimes
counseling or formally warning the perpetrator may
be a sufficient response if the circumstances
suggest that such action is reasonably expected to
end the problem. . . . Of course, if the
harassment continues, then the employer may need
to escalate to more aggressive disciplinary
measures as less severe measures prove inadequate.
892 F.3d at 1018 (quotations and citations omitted).
B.
Statements Made by Coworkers
At deposition Plaintiff asserted his claim for hostile
work environment was based on five incidents:
(1)
“On . . . February 26, 2015, a coworker told
[Plaintiff] that he was "the whitest black guy [she]
know[s].”
(2)
“On . . . June 4, 2015, Potter made a reference to
[Plaintiff] playing basketball, and [Plaintiff]
believed it was made because he is African American.”
(3)
“At some point, Potter said that [Plaintiff] looked
38 - OPINION AND ORDER
like Wesley Snipes.”
(4)
In November 2015 Enrollment Coach Nathan Dunkin said:
"Oh, look.
Look at Demetrye.”
“Why, because he's black?”
Plaintiff asked Dunkin:
Dunkin responded:
“No
because he's just a little -- cute little kid, just,
you know, that's it.
(5)
Just simple.”
In November 2015 Enrollment Coach Anthony Potter said
to Plaintiff:
black.
“You can't hide behind the door.
You're
You can't hide behind this white wall.”
JSAF at ¶ 83.
The Ninth Circuit has held statements and actions
significantly more severe and pervasive than the ones made by
Plaintiff’s coworkers and supervisors were insufficient to
establish a hostile work environment.
For example, in Manatt v.
Bank of America, NA, the plaintiff’s coworkers pulled their eyes
back with their fingers to imitate or mock the appearance of
Asians on several occasions; a coworker said to the plaintiff:
“China woman, China woman, China woman, get your butt over here”;
a coworker ridiculed the plaintiff in front of other coworkers
for the way the plaintiff pronounced “Lima,” and the coworkers
laughed and said:
“That's because she's a China woman”; a
coworker said to the plaintiff's supervisor:
“I am not a China
man, I'm not like China men with their eyes like that,” and the
supervisor smiled in response; the plaintiff's supervisor told
39 - OPINION AND ORDER
her:
“I've had the worst kind of trouble with your countrymen”;
the plaintiff’s coworkers made derogatory references to
“rickshaw[s]”; the plaintiff’s coworkers used the phrase “China
man” in a joking manner on multiple occasions; and the
plaintiff’s coworkers referred to Chinese people as “those
communists from Beijing.”
339 F.3d 792, 795-96.
The Ninth
Circuit noted Title VII “is not a general civility code,” and
“simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in
the ‘terms and conditions of employment.’”
omitted).
Id. (quotations
The Ninth Circuit concluded the conduct alleged by the
plaintiff “f[ell] into the ‘simple teasing’ and ‘offhand
comments’ category of non-actionable discrimination” and,
therefore, did not create a hostile work environment.
798.
Id. at
See also EEOC v. Prospect Airport Servs., Inc., 621 F.3d
991, 998 (9th Cir. 2010)(“A violation is not established merely
by evidence showing sporadic use of abusive language, genderrelated jokes, and occasional teasing.”); Vasquez v. Cty. of Los
Angeles, 307 F.3d 884, 893 (9th Cir. 2002)(the plaintiff failed
to establish a hostile environment claim when he was told he had
“a typical Hispanic macho attitude,” that he should work in the
field because “Hispanics do good in the field,” and he was yelled
at in front of others); Kortan v. Cal. Youth Auth., 217 F.3d
1104, 1111 (9th Cir. 2000)(the plaintiff did not establish a
40 - OPINION AND ORDER
hostile work environment claim when her supervisor referred to
females as “castrating bitches,” “Madonnas,” or “Regina” in front
of the plaintiff on several occasions and called plaintiff
“Medea”).
Based on the above cases, the Court concludes
Plaintiff has not established conduct by Defendant that was
“sufficiently severe or pervasive to alter the conditions of
[Plaintiff’s] employment and create an abusive working
environment.”
In addition, even if these statements were sufficiently
severe and pervasive to constitute a claim for hostile work
environment, the record reflects Plaintiff did not report
statements 1-3 to a member of Defendant’s Human Resources
Department or to a manager.
Defendant has a Policy Prohibiting
Harassment that was provided to Plaintiff when he began his
employment.
The Policy provides any employee who believes he has
been subject to harassment should inform his immediate
supervisor, “a management representative of [Defendant],” the
Employee Relations Manager, or the Associate Vice Chancellor of
Human Resources.
Tripp Decl., Ex. 15 at 31.
As noted, Plaintiff
did not report these statements to any of the individuals set out
in the Policy or to any other management personnel.
Moreover,
the Ninth Circuit has made clear that an employer “may be held to
account for [employee’s] actions only if, after learning of the
harassment, [management] failed to take prompt corrective
41 - OPINION AND ORDER
measures that were reasonably calculated to end the harassment.”
Campbell, 892 F.3d at 1017 (quotation omitted).
Here there is
not any evidence from which the Court can infer Defendant knew or
should have known about statements 1-3.
The Court, therefore,
concludes Defendant “may [not] be held to account for” statements
1-3.
Plaintiff, however, reported statements 4 and 5 in
November 2015 to Larson, who is a manager.
Larson met with both
Duncan and Potter, counseled them on making offensive comments,
and warned them that their comments to Plaintiff were
inappropriate and offensive.
apologized to Plaintiff.
Subsequently Duncan and Potter both
Plaintiff was “satisfied with the
response and felt that the issue had been resolved.”
¶ 81.
JSAF at
Plaintiff then sent Larson an email in which he stated:
“Again, I want to thank you for listening and taking care of the
issues I had with Nathan and Tony regarding the racial comments
they've made.
I appreciate you immediately delving into this
issue, and rectify[ing] it.”
JSAF at ¶ 82.
The Ninth Circuit
has stated even when “a complaint is found to be true, sometimes
counseling or formally warning the perpetrator may be a
sufficient response if the circumstances suggest that such action
is reasonably expected to end the problem.”
at 1018.
Campbell, 892 F.3d
Here the record does not show Duncan and/or Potter made
any further offensive comments to Plaintiff, and, therefore,
42 - OPINION AND ORDER
there is not any indication that Defendant needed “to escalate to
more aggressive disciplinary measures” to address the conduct by
Plaintiff’s coworkers.
Thus, even if statements 4 and 5 had been
sufficiently severe and pervasive to support a claim for hostile
work environment, Plaintiff has not established Defendant failed
to take sufficient action to address the situation.
Accordingly, the Court grants Defendant’s Motion for
Summary Judgment as to the second part of Plaintiff’s First Claim
to the extent that it is based on these statements.
C.
Implicit Bias
In his Response to Defendant’s Motion for Summary
Judgment Plaintiff asserts his claim of hostile work environment
is also based on a “hidden or implicit bias and the effect it can
have in disproportionate discipline or disparate enforcement of
policies.”
Pl.’s Resp. at 32.
Plaintiff does not cite any
authority nor could this Court find any authority that a hidden
or implicit bias can support a claim for hostile work
environment.
In addition, Plaintiff does not cite to evidence in
the record that shows any alleged hidden or implicit bias
resulted in an environment of the kind that the Ninth Circuit has
concluded constitutes a hostile work environment.
Accordingly,
the Court grants Defendant’s Motion for Summary Judgment as to
the second part of Plaintiff’s First Claim to the extent that it
is based on an alleged implicit or hidden bias.
43 - OPINION AND ORDER
In summary, the Court grants Defendant’s Motion for Summary
Judgment as to the second part of Plaintiff’s First Claim for a
hostile work environment.
III. Plaintiff’s Second Claim for Retaliation for Opposing
Discrimination in Violation of Title VII, 42 U.S.C.
§ 2000e-3; Oregon Revised Statutes § 659A.030(f); and Oregon
Revised Statutes § 659A.199
In his Second Claim he alleges Defendant retaliated against
him for opposing discrimination in violation of Title VII, 42
U.S.C. § 2000e-3; Oregon Revised Statutes § 659A.030(f); and
Oregon Revised Statutes § 659A.199.
Specifically, Plaintiff
alleges Defendant terminated Plaintiff’s employment in
retaliation for making his August 6, 2015, complaint of
discrimination.
Defendant asserts it is entitled to summary judgment on
Plaintiff’s Second Claim on the grounds that Plaintiff cannot
establish a causal link between his August 6, 2015, complaint and
his termination; that Defendant had legitimate, nondiscriminatory
reasons for terminating Plaintiff’s employment; and that
Plaintiff cannot establish a genuine dispute of material fact
exists as to whether Defendant’s reasons were pretext for
retaliation.
A.
The Law
To establish a prima facie case of retaliation under
Title VII,
42 U.S.C. § 2000e-3; Oregon Revised Statutes
44 - OPINION AND ORDER
§ 659A.030(1)(f); and Oregon Revised Statutes § 659A.199 “a
plaintiff must demonstrate:
‘(1) [he] was engaging in protected
activity, (2) the employer subjected [him] to an adverse
employment decision, and (3) there was a causal link between the
protected activity and the employer's action.’”
Branford v. Wa.
Cty., Oregon, No. 3:17- CV-94-SI, 2019 WL 1957951, at *15 (D. Or.
May 2, 2019)(quoting Pool v. VanRheen, 297 F.3d 899, 910 (9th
Cir. 2002)).
See also Tornabene v. N.W. Permanente, P.C., 156 F.
Supp. 3d 1234, 1242 (D. Or. 2015)(“The substantive analysis for
discrimination under Title VII . . . and ORS § 659A.030 . . . is
substantially similar, and courts often analyze such claims
together.”); Larmanger v. Kaiser Found. Health Plan of the N.W.,
895 F. Supp. 3d 1033, 1053 (D. Or. 2012)(“The elements of a prima
facie case under § 659A.030(1)(f) and the analysis of a claim
under that statute do not differ in any substantive way from the
standards that govern or the analysis that applies to Plaintiff's
other whistleblowing and retaliation claims” under Title VII and
§ 659A.199.).
To establish causation the plaintiff must show his
protected activity was a “‘substantial factor in the motivation
to discharge the employee.’”
Sandberg v. City of North Plains,
No. 10–CV–1273–HZ, 2012 WL 602434, at *7 (Feb. 22, 2012)(quoting
Estes v. Lewis and Clark Coll., 152 Or. App. 372, 381 (1998)).
See also Huff v. City of Portland, Civ. No. 05–1831–AA, 2008 WL
45 - OPINION AND ORDER
1902760, at *6 (D. Or. Apr. 28, 2008)(“Plaintiff bears the burden
of establishing that her alleged disclosures constituted 'a
substantial factor' in the discontinuation of her employment.”).
“[T]o be a substantial factor, the employer's wrongful purpose
must have been ‘a factor that made a difference’ in the discharge
decision.”
Estes, 152 Or. App. at 381 (citing Nelson v. Emerald
People's Util. Dist., 116 Or. App. 366, 373 (1992)).
If the plaintiff establishes a prima facie case, the
burden shifts to the defendant to rebut the inference of
retaliation by offering a legitimate, nondiscriminatory reason
for the employee's termination.
If the defendant successfully
rebuts the inference of retaliation, the burden of production
shifts back to the plaintiff to show that the defendant's
explanation is merely a pretext for impermissible retaliation.
Neighorn v. Quest Health Care, No. 1:10-CV-03105-CL, 2012 WL
1566176, at *28 (D. Or. May 2, 2012).
See also Dawson v. Entek
Int'l, 630 F.3d 928, 936 (9th Cir. 2011)(McDonnell-Douglas
burden-shifting framework applies to state and federal claims).
B.
Causal link
As noted, Defendant asserts Plaintiff cannot establish
a causal link between his August 6, 2015, complaint of
discrimination and his February 3, 2016, termination.
Plaintiff,
however, asserts a causal connection between his complaint and
his termination can be inferred from the temporal proximity of
46 - OPINION AND ORDER
the two events.
“A plaintiff can establish a causal connection between
her protected activity and the adverse employment action
. . . indirectly, by showing that the protected activity was
followed closely by” the adverse employment action.
Huitt v.
Optum Health Servs., 216 F. Supp. 3d 1179, 1193 (D. Or. 2016).
“Courts[, however,] have made clear that when a plaintiff
‘attempts to establish the causal connection indirectly [by]
relying on mere temporal proximity between the events, the events
must be ‘very close’ in time.”
Id. (quoting Boynton–Burns v.
Univ. of Or., 197 Or. App. 373, 380–81 (2005)).
For example, in
Pavel the Ninth Circuit held “a temporal proximity of three
months is by itself insufficient circumstantial evidence to
defeat a motion for summary judgment.”
2019 WL 2295867, at *2.
Similarly, in Miller v. Clark County School District the Ninth
Circuit held the plaintiff failed to establish that a genuine
dispute of material fact existed as to whether his protected
conduct was a motivating factor in his termination when the
plaintiff engaged in the allegedly protected activity “more than
a month” before the defendant terminated his employment “for
insubordination.”
378 F. App’x 623, 626 (9th Cir. 2010).
Similarly, in Swan v. Bank of America the Ninth Circuit concluded
the plaintiff could not establish her termination was “causally
related” to her medical leave because the defendant terminated
47 - OPINION AND ORDER
the plaintiff’s employment “four months after her return from
leave, which is too remote in time to support a finding of
causation premised solely on temporal proximity.”
360 F. App’x
903, 906 (9th Cir. 2009)(citing Clark Cty. Sch. Dist. v. Breeden,
532 U.S. 268, 273 (2001)).
See also Redwind v. W. Union, LLC,
No. 3:14-CV-01699-AC, 2016 WL 3606595, at *19 (D. Or. May 2,
2016)(concluding five months between the protected activity and
the adverse employment action is insufficient temporal proximity
to support a finding of causation); Talbot v. New Seasons Mkt.,
LLC, No. 03:12-CV-00141-HZ, 2012 WL 6738271, at *7 (D. Or.
Dec. 27, 2012)(concluding two months between the protected
activity and the adverse employment action is insufficient
temporal proximity to support a finding of causation); Kadiyan v.
Medtronic, No. CV1005921MMMMANX, 2011 WL 13142145, at *15 (C.D.
Cal. Apr. 8, 2011)(concluding six months between the protected
activity and the adverse employment action is insufficient
temporal proximity to support a finding of causation).
In
several cases district courts in the Ninth Circuit have concluded
even longer periods such as seven to nine months between the
protected activity and the adverse action does not constitute
sufficient temporal proximity to establish a causal connection.
See, e.g., Anderson v. City and Cty. of San Francisco, 169 F.
Supp. 3d 995, 1028 (N.D. Cal. Mar. 14, 2106)(seven months is
insufficient); Santa Ana Police Officers Ass'n v. City of Santa
48 - OPINION AND ORDER
Ana, No: SA CV 15–1280–DOC(DFMx), 2016 WL 827750, at *12 (C.D.
Cal. Mar. 2, 2016)(eight months is insufficient).
Here there were six months between the time Plaintiff
made his August 2015 complaint of discrimination and February
2016 when Defendant terminated his employment.
Thus, the Court
concludes Plaintiff’s discrimination complaint and his
termination are not sufficiently close in time to establish a
causal connection between his protected activity and the adverse
employment action.
In his Response to Defendant’s Motion for Summary
Judgment Plaintiff also asserts his complaints to Larsen in
November 2015 are sufficiently close in time to his termination
to establish a causal connection.
The record, however, reflects
none of the individuals who were involved in the decision to
terminate Plaintiff’s employment were aware of Plaintiff’s
November 2015 report to Larsen.
Knight Dep. at 41.
See Chughtai Dep. at 44-46;
The Ninth Circuit has made clear that in
order to support a causal connection between protected activity
and an adverse employment action, the plaintiff must establish
the decision-maker was aware of the protected activity.
See,
e.g., Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d
1185, 1197-98 (9th Cir. 2003)(“In order to prevail, [the
plaintiff] must present evidence from which a reasonable trier of
fact could conclude that the school principals who refused to
49 - OPINION AND ORDER
hire her were aware that she had engaged in protected
activity.”); Stephens v. Nike, 611 F. App’x 896, 897 (9th Cir.
2015)(“The district court properly granted summary judgment on
the federal retaliation claims . . . because [the plaintiff]
failed to raise a genuine dispute of material fact as to whether
the relevant decision maker was aware of his protected
activity.”); Christian v. Umpqua Bank, No. 3:16-CV-01938-BR, 2018
WL 2326604, at *8 (D. Or. May 22, 2018)(“Evidence that a
decision-maker is aware of an employee's protected activity is
required to support a claim of retaliation.”).
The Court, therefore, concludes on this record that
Plaintiff has not established a genuine dispute of material fact
exists as to the causal connection between either his August 2015
or his November 2015 discrimination complaints and his February
2016 termination.
C.
Legitimate, Nondiscriminatory Reason and Pretext
Even if either the six months between Plaintiff’s
August 2015 discrimination complaint and his termination is close
enough in time to constitute a causal connection between his
complaints and his termination and even if Plaintiff could
establish the relevant decision-makers were aware of his November
2015 complaint to Larsen, the Court has already concluded
Defendant has provided legitimate, nondiscriminatory reasons for
Plaintiff’s termination:
50 - OPINION AND ORDER
i.e., his bomb comments and his poor
performance.
Plaintiff relies on the same facts and evidence to
support his Second Claim for retaliation that he relied on to
support his First Claim for race discrimination.
For the same
reasons that the Court concluded these facts and evidence do not
support a finding that Defendant’s reasons for terminating
Plaintiff were pretextual as asserted in Plaintiff’s
discrimination claim, the Court concludes they do not support a
finding of pretext in Plaintiff’s retaliation claim.
In summary, the Court concludes Plaintiff has not
established a causal connection between any of his discrimination
complaints and his termination nor has Plaintiff established
Defendant’s legitimate, nondiscriminatory reasons for terminating
Plaintiff’s employment were pretextual.
Accordingly, the Court grants Defendant’s Motion for Summary
Judgment as to Plaintiff’s Second Claim for retaliation.
CONCLUSION
For these reasons, the Court GRANTS Defendant’s Motion (#51)
for Summary Judgment and DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 5th day of August, 2019.
/s/ Anna J. Brown
___________
ANNA J. BROWN
United States Senior District Judge
51 - OPINION AND ORDER
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