Linggi v. TE Connectivity Corporation

Filing 54

Opinion and Order - Defendant's Motion for Summary Judgment or, Alternatively, for Partial Summary Judgment (ECF 29 ) is granted in part and denied in part. Plaintiff's claim under Or. Rev. Stat. § 659A.199 challenging the termination of his employment may proceed to trial. Signed on 7/3/2019 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CHRISTOPHER LINGGI,
Plaintiff,

Case No. 3:17-cv-1992-SI
OPINION AND ORDER

v.
TE CONNECTIVITY CORPORATION,
Defendant.
Jessica Ashlee Albies and Whitney B. Stark, ALBIES & STARK, LLC, 210 SW Morrison Street,
Suite 400, Portland, OR 97204. Of Attorneys for Plaintiff.
James M. Barrett and Christopher A. Morehead, OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, PC, 222 SW Columbia Street, Suite 1500, Portland, OR 97201. Of Attorneys for
Defendant.
Michael H. Simon, District Judge.
Christopher Linggi (“Linggi”) brings this lawsuit against his former employer
TE Connectivity (“TEC”), alleging that TEC retaliated against him by terminating his
employment for opposing and reporting what he believed to be legal wrongdoing during a U.S.
Food and Drug Administration (“FDA”) inspection at his workplace. Plaintiff asserts state law
claims under Or. Rev. Stat. §§ 659A.030 and 659A.199 and for common law wrongful

PAGE 1 – OPINION AND ORDER

discharge. TEC moves for summary judgment or, alternatively, for partial summary judgment.
For the reasons that follow, TEC’s motion is granted in part and denied in part.
STANDARDS
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
the plaintiff’s position [is] insufficient.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255
(1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
BACKGROUND
A. TEC and Its Personnel
Plaintiff is a former employee of TEC, a company that designs and manufactures
connectors and sensors for products used in a variety of industries, including the medical
industry. TEC operates several facilities, including a facility in Wilsonville, Oregon that
manufactures cables and subparts used in medical devices regulated by the FDA. Plaintiff
worked for TEC in Wilsonville, Oregon from April 2012 through April 2015 and again from

PAGE 2 – OPINION AND ORDER

November 2015 through March 2017. On March 17, 2017, TEC terminated Plaintiff’s
employment.
During Plaintiff’s first period of employment at TEC (from April 2012 through
April 2015), he worked as a manufacturing engineer. When he returned to TEC in November
2015, Plaintiff’s position was Manager of Quality Systems. In that role, Plaintiff supervised
TEC’s quality management compliance at three facilities: Wilsonville, Oregon; Guyamas,
Mexico; and Suzhou, China. Before working for TEC, Plaintiff had no previous experience in
quality control.
When Plaintiff was rehired by TEC in November 2015, his supervisor was David Vose.
Shortly thereafter, Vose left TEC. Plaintiff was next supervised remotely by Jeff Sears, who was
responsible for Global Operations and Quality Assurance and Regulatory Affairs. Sears left TEC
in June 2016. After Sears left, Plaintiff was directly supervised by Mark Andrews, the Senior
Operations Manager in Wilsonville. Plaintiff also had a “dotted line” reporting relationship to
Joan McCabe, TEC’s Senior Vice President of Quality and Regulatory.
McCabe joined TEC in April 2016, when TEC acquired Creganna Medical, where she
had been in charge of its Quality Department. McCabe was located in Galway, Ireland, but she
and Plaintiff communicated by telephone on a semi-weekly basis. Andrews (Plaintiff’s on-site
supervisor) did not work in TEC’s Quality Department.
B. TEC’s Planned Reduction in Force
In April 2016, TEC acquired Creganna Medical, which had its own quality and
operations departments. After the acquisition, TEC reorganized into two subdivisions:
(1) Surgical and Cables; and (2) Interventional. Vish Ananthan was appointed to lead the
Surgical and Cables Division. TEC determined that it needed to “right size” or restructure the
Surgical and Cables Division through a reduction in force (“RIF”). The goals of the RIF included
PAGE 3 – OPINION AND ORDER

reducing the number of TEC employees at the Wilsonville facility by 24 employees and reducing
the number of TEC employees worldwide by 82 employees.
Kyleen Beistline, TEC’s Senior Manager of Human Resources, and Vish Ananthan were
jointly in charge of the RIF, although the names on the final RIF list were subject to final
approval by TEC’s corporate and legal departments. TEC scheduled layoffs associated with the
RIF to take place in waves beginning in October 2016. On July 14, 2016, Beistline met with all
department leaders to review employees that each leader had identified as potential candidates
for the RIF. At this meeting, Mark Andrews identified Plaintiff as a potential candidate for the
RIF. Andrews stated that he included Plaintiff on the RIF list because Plaintiff was one of the
highest paid employees, yet Plaintiff’s role was in flux and his duties had shrunk in scope as the
nature of the organization was changing. When Plaintiff had been rehired into the Quality
Department in November 2015, he supervised five employees, but by July 2016 that number had
been reduced to three. Although performance was not a factor in Plaintiff’s inclusion on the RIF
list, the fact that that Plaintiff was relatively inexperienced and new to the role contributed to
Andrews’ decision to place Plaintiff on the RIF list. At the July 14 meeting, the department
leaders also discussed whether Plaintiff should be moved to another position within the
company, but ultimately decided to place Plaintiff’s name on the RIF list.
On July 17, 2016, Beistline sent an email to Conrad Johnson at TEC, attaching a list of
the names that the department leaders had suggested for the RIF. Plaintiff’s name was included
on that list. On September 13, 2017, Beistline sent another email, this time to Robert Rizzitello at
TEC with a copy to Anthanan. This email included an updated RIF list, which also continued to
contain Plaintiff’s name. On September 22, 2016, Beistline emailed the latest RIF list to Lauren
Breen, a labor and employment attorney at TEC, and Plaintiff’s name remained on that list. On

PAGE 4 – OPINION AND ORDER

September 27, 2016, a revised RIF list was sent to TEC’s corporate group for approval. That list
continued to include Plaintiff’s name.
Any changes to the RIF list needed to be approved by Anthanan as well as by the finance
and human resources departments. Throughout the months during which the RIF list was being
modified, Plaintiff’s inclusion on that list did not change. Although the RIF list was an evolving
document and names would be removed if a listed employee retired or resigned, the consistent
goal of the RIF list was to reduce the total number of employees, not to eliminate any specific
employee. As a result, some employees whose names were initially on the RIF list were not
ultimately terminated.
On October 7, 2016, Andrews met with Plaintiff to speak with him about the possibility
of Plaintiff transferring to a position in TEC’s engineering department, which was supervised by
Bill Veith. Although the planned RIF was not yet generally known within TEC and Andrews
could not tell Plaintiff that his name was on the RIF list, Andrews hoped to encourage Plaintiff to
move to a new position within the company so that he would not be terminated. Vieth needed a
project manager in the engineering department, and Andrews knew that Plaintiff’s position was
in danger. Andrews thought that with Plaintiff’s background and work experience in engineering,
this position might be a good fit for him. Andrews decided to approach Plaintiff with this idea,
even though the engineering position was not a management-level position and was classified at
a lower grade than Plaintiff’s job in the Quality Department.
During that meeting, Andrews gave Plaintiff “mixed performance feedback,” stating both
negative and positive things about Plaintiff. Andrews suggested that Plaintiff meet with Bill
Veith, the engineering department manager. Andrews also alluded to a potential restructuring
within TEC. Plaintiff left the meeting confused and concerned about his job security.

PAGE 5 – OPINION AND ORDER

On October 9, 2016, Plaintiff sent an email to Brenda Gilman, a human resources
representative, stating that Andrews had told him that his position was going to be affected by an
upcoming restructuring and asking what he should do. Gilman forwarded Plaintiff’s email to
Andrews, who responded to Plaintiff, telling him that his conclusions about his position being
affected by a restructuring were “incorrect and premature.”
Plaintiff believed that moving to the engineering position would be a demotion, even
though his salary would remain unchanged. On October 24, 2016, Gilman reached out to
Andrews and inquired whether Plaintiff had discussed the engineering position with Veith.
Andrews responded that Plaintiff needed to be on the RIF list, and it was up to Veith to make
Plaintiff a job offer in the engineering department before Plaintiff was scheduled to be let go. In
late October, Plaintiff met with Vieth and declined the position in the engineering department.
TEC’s RIF happened in several waves, or stages. Each employee whose name was on the
list was assigned a date on which he or she would be notified of termination. TEC originally
scheduled Plaintiff’s termination for November 11, 2016. On November 10, Ananthan emailed
Beistline and told her that he had heard “from the grapevine” that Plaintiff was planning to resign
from his position at TEC.1 Anthanan asked Beistline to postpone Plaintiff’s termination date, and
Beistline moved Plaintiff’s termination date from November 2016 to early 2017. TEC then
scheduled Plaintiff to be notified of his upcoming termination on January 20, 2017, with an
effective termination date of February 3, 2017.
On December 5, 2016, however, Plaintiff suffered a seizure at work and was taken to the
hospital by ambulance. Plaintiff took concurrent short-term disability leave and leave under the

1

Plaintiff had started interviewing for other jobs and he had shared this fact with his
coworker and friend, Kevin Ankrum.

PAGE 6 – OPINION AND ORDER

Family and Medical Leave Act (“FMLA”) and the Oregon Family Leave Act (“OFLA”) through
January 4, 2017. Plaintiff later extended his approved short-term disability leave through
March 24, 2017. (Plaintiff’s FMLA and OFLA benefits expired on February 27, 2017.) TEC
further delayed Plaintiff’s scheduled RIF date due to his medical leave.
C. FDA Inspection in September 2016
TEC is an FDA registered contract manufacturer of medical device components. On
September 8, 2016, McCabe learned that there would be an FDA inspection at TEC’s
Wilsonville facility. McCabe flew to Wilsonville to prepare for that inspection. Preparations for
the FDA inspection began on September 10, 2016, and the inspection began on September 13,
2016. Plaintiff and Kevin Ankrum, among others, assisted McCabe in preparing for the FDA
inspection.
On September 10, 2016, three days before the inspection began, Plaintiff was working at
the Wilsonville facility with Ankrum and McCabe. Plaintiff and McCabe reviewed an internal
audit and Corrective Action Preventative Action (“CAPA”) that Plaintiff, Ankrum, and Troy
Brewster, another TEC employee, had prepared. McCabe asked to see previous versions of the
global internal audit schedule, but Plaintiff reported that they were not in the records. McCabe
reviewed the existing global internal audit schedule and began to make handwritten changes to
the document. McCabe also instructed Plaintiff to make these changes and then reprint the front
page of the document.
In response to McCabe’s request, Plaintiff showed “immediate discomfort.” Plaintiff
believed that McCabe was requesting falsification and backdating of a record and further
believed that the changes to the document should have reflected the current date, not the date that
Plaintiff had originally completed and signed the record. Plaintiff told McCabe something to the
effect of “this doesn’t feel right.” McCabe replied, “Well, Chris, you’re the only approval
PAGE 7 – OPINION AND ORDER

required so they shouldn’t be hard to find.” McCabe then “winked” and “smiled” at Plaintiff.
Plaintiff concluded that McCabe’s wink indicated that she knew that he was opposed to her
request.2 Ultimately, Plaintiff did not revise, reprint, or sign the document as requested. On
September 13, 2016, when the FDA inspector asked to review the global audit schedule, Plaintiff
presented the original schedule to the inspector. McCabe was present when Plaintiff did this and,
thus, presumably knew that he had not complied with her request.
Also on September 10, 2016, McCabe and Plaintiff were reviewing each individual open
CAPA, and McCabe identified a CAPA initiated by an overdue preventative maintenance for
equipment relating to environmental control systems for the facility. McCabe instructed Plaintiff
that “an assessment was needed to state [that] an initial review determined there was no impact
to systems in control of product quality.” That same day, McCabe reviewed TEC’s quality
manual and complaints procedure. During her review, McCabe identified obsolete references to
medical device reporting. Plaintiff explained that he had removed some of the references from
the quality manual because he had been instructed to do so by Sears, his previous supervisor.
Plaintiff also explained that the remaining references were in the document because Sears had
instructed him to update the quality agreements with customers before revising the procedures.
In further preparation for the inspection, on September 10, 2016, McCabe reviewed an
internal audit report that Plaintiff had completed under the supervision of Sears. Plaintiff had
initiated the internal audit because he recognized that TEC had deficiencies in the area of
training, although Plaintiff believed that he could not have been responsible for the failures
identified in the training audit because he had not been working at TEC during the time period
2

McCabe testified at deposition that she was completely unaware that Plaintiff had any
concerns during the preparation for the FDA inspection or during the FDA inspection. That is a
disputed fact that the Court resolves in favor of Plaintiff at this stage of the litigation.

PAGE 8 – OPINION AND ORDER

during in which the failures had developed. After reviewing the training audit report, McCabe
sent an email to Plaintiff and Ankrum in which she described the training audit report as
“scathing” and expressed her displeasure with the report.
On September 10, 2016, at 8:20 p.m., McCabe sent an email to Andrews, expressing her
disappointment with Plaintiff’s work. In her email, McCabe wrote, “[a]fter a day of diving into
the QMS [Quality Management Systems] aspects it is extremely clear that Chris L[inggi] is in
his job and way over his head. He is very committed but has no clue how to protect us and in fact
[I] feel is more a risk than a [sic] asset. . . . Anyway – just want to give you a heads up. We’ll get
through the next week but [I] think we need to make changes later.” ECF 41-1 at 54 (emphasis
added); ECF 30-2 at 22 (same document). Andrews responded the following day, saying “I’m
leaning toward similar thoughts.” Id.
Also on September 10, 2016, after Plaintiff finished preparations for the audit for the day,
Plaintiff reached out to his former supervisor, Jeff Sears, who no longer worked for TEC.
Plaintiff had serious concerns about McCabe’s conduct that day and believed that her actions
amounted to violations of federal or state law, FDA regulations, or TEC policies. Plaintiff
contacted Sears and described to him McCabe’s instruction to modify the internal audit report.
Sears agreed that this action sounded unlawful. Sears advised Plaintiff to take notes regarding his
concerns, escalate his concerns, and ask simple questions like “is this okay” and “help me
understand.” Beginning September 11, 2016, Plaintiff began taking notes about the audit
preparations.
On September 11, 2016, McCabe followed up with Plaintiff about the training audit
report. She requested a redaction of the conclusion in the report that TEC suffered from a “lack
of active management and leadership commitment.” ECF 39 at 6. Plaintiff complied and

PAGE 9 – OPINION AND ORDER

redacted that statement with a marker, but McCabe clarified that she wanted him to remove the
entire first page of the document. Plaintiff responded, “The report is a controlled document.” Id.
Plaintiff believes that when he stated that the report is a controlled document, McCabe
understood that he was advising her that the report could not be modified. Plaintiff believed that
McCabe’s request did not comply with the regulations governing controlled documents and
records.
Also on September 11, 2016, McCabe also followed up with Plaintiff about the quality
manual and complaints procedure and asked Plaintiff to remove the obsolete references in the
quality manual and complaints procedure. Plaintiff pushed back on her request, explaining that
he was in the process of reviewing the customer quality agreements. Plaintiff believed that those
agreements needed to be updated before he could update the quality manual and complaints
procedure. Plaintiff voiced his concerns, but McCabe dismissed those concerns and required
Plaintiff to update the complaints procedure. Plaintiff complied with her request but believed that
updating the procedure that way was also illegal.
On September 12, 2016, Plaintiff followed up on a request from McCabe for a CAPA
assessment. Plaintiff consulted with the facilities manager, Ray Edwards, and a quality engineer,
Kirsten King, and both agreed that the assessment would need to be performed by the external
vendor, and TEC did not have the qualified personnel on site. McCabe stated that this was not
important and believed that a memo stating that the assessment had been completed with the
requested conclusion would be sufficient. Plaintiff asked if this request was “okay” because he
believed it to be unlawful. Plaintiff repeated that the facilities manager and quality engineer had
believed this assessment was not possible.. McCabe dismissed Plaintiff’s concern and asked him
to write and sign “a simple paragraph memo of the completed assessment.” ECF 39 at 8. The

PAGE 10 – OPINION AND ORDER

next day, September 13, Plaintiff decided that the request was illegal and decided not to fulfill
McCabe’s request.
Also on September 12, Plaintiff reviewed a list of site product listings, and he notified
Andrews that he believed the list was inaccurate because some products, including those
requiring a Unique Device Identifier (“UDI”) that had been in production for more than six
months, were not included on the list. Plaintiff stated that there was a discrepancy in the listings.
Plaintiff also notified McCabe that a new product existed and had been manufactured in the last
six months but was not on the list. Plaintiff believed that it was necessary to disclose to the FDA
all products actively being manufactured, and he told McCabe and Andrews that they should add
another listing, so as to not omit information. McCabe dismissed plaintiff’s statements.
Further, on September 12, 2016, McCabe announced that the team preparing for the audit
should treat tubing “like its [sic] not in the room.” ECF 39 at 10. Plaintiff told McCabe that TEC
needed to disclose to the FDA that TEC was manufacturing tubing. McCabe dismissed Plaintiff’s
concern.
The FDA inspection formally began on September 13, 2016. McCabe was in a room with
the FDA inspector, and Plaintiff, Ankrum, and others were in a “war room” nearby and
electronically connected to McCabe by Instant Messenger. On that day, the FDA inspector asked
whether there were any products at the Wilsonville facility requiring a UDI. McCabe told the
inspector, “no.” Plaintiff expressed his concern to Andrews that the information was inaccurate
because a UDI product had in fact been manufactured in the last six months. Andrews dismissed
Plaintiff’s concern, telling him that he was making too big of a deal out of this. Plaintiff then
approached McCabe and reminded her that the UDI product had been manufactured within the
last six months. McCabe responded that they should move forward without addressing this

PAGE 11 – OPINION AND ORDER

concern. On September 16, Plaintiff reiterated to Andrews that he was worried that TEC was not
disclosing a UDI product that it had recently manufactured.
Also on September 13, the FDA inspector requested job descriptions of individuals in
management. As the job descriptions were being prepared, it became clear that some descriptions
were signed and dated and some others were not. Plaintiff overheard McCabe telling an
employee to copy and scan her job description several times so that it would “look older.”
ECF 39 at 11. After work ended on September 13, Plaintiff and Ankrum had dinner together and
Plaintiff told Anrkum, “this is so illegal.” Id.
On September 15, still during the FDA inspection, the inspector was reviewing supplier
controls, supplier records, and TEC’s adherence to procedures for supplier management. During
this review, the inspector requested to review the long-form assessment and file for Plitek, a TEC
vendor. Vishnu Venkatasen, who was working on the inspection, and Plaintiff began contacting
procurement team members who could locate the file. Plaintiff contacted the buyer on site who
located the file, printed it, and showed it to Plaintiff, but the assessment form was blank.
According to Plaintiff, the assessment form should have been completed before Plitek could be
an approved vendor. Someone communicated to McCabe that this form was blank, and McCabe
sent an email to Plaintiff and Venkatasen asking if someone could complete and sign the form.
Plaintiff saw the email and told Venkatesen, “I can’t.” McCabe came into the war room where
Plaintiff was working and asked about the Plitek form. Plaintiff responded, “I can’t” and turned
away. ECF 39 at 12; ECF 30-1 at 49.
Plaintiff believed there was intentional misleading of the FDA inspector and that this was
fraudulent and unlawful. Venkatasen and Andrews continued to work to support McCabe’s
request to get the form filled out and enlisted an engineer, Katherine Ladwig, to fill out the form.

PAGE 12 – OPINION AND ORDER

Plaintiff printed out a copy of the procedure that the form should have followed and gave it to
Andrews. Plaintiff told Andrews, “you need to understand what you’re doing. The procedure
requirements of this form are different from when it was added to the [approved vendor list]. The
procedure requirements today are different.” ECF 39 at 13. Andrews ignored Plaintiff’s
statements, but, unlike McCabe, recognized at the time that Plaintiff had concerns. ECF 40-1
at 55. Ladwig filled out the form and sent it to McCabe, but McCabe entered the war room
several minutes later and announced, “You might as well have put today’s date on the front
page” and instructed Ladwig to fill out the form again. ECF 39 at 13. Plaintiff did not participate
in any supporting actions for the form to be modified again, and he refused to participate in the
“group chat” regarding the form. At the end of the day, Plaintiff told Andrews, “Mark, what
happened today was very very wrong.” ECF 39 at 14. Plaintiff told Andrews that “there are CFR
requirements that must be met, and a supplier evaluation is one of them.” Id. Andrews dismissed
Plaintiff’s concern.
On September 16, 2016, after the FDA inspection was over, Plaintiff heard from his
friend Ankrum that McCabe had told Ankrum that “Chris has got to go.” ECF 39 at 15. On
September 16, Plaintiff texted Jonathan Perez, a coworker at TEC, telling him that McCabe
“deliberately and intentionally asked people to fabricate records” and “The VP fabricated
documents . . . She submitted fake evidence on purpose.” Stark Decl. Ex. 11. Plaintiff expressed
that, “I’m going to lose my job over this.” Stark Decl. Ex. 11.3

3

Defendant objects to the admissibility of the screen shots of the text messages because
they were disclosed late, cannot be authenticated, and are hearsay. Plaintiff concedes that the
messages were disclosed late due to an error, and states that Plaintiff himself can authenticate the
images. Plaintiff has also provided to Defendant the mobile phone that the messages were sent
from, and Defendant sent it to a third party specialist to try to recover the messages. At summary
judgment, the Court may consider “evidence submitted in an inadmissible form, so long as the
underlying evidence could be provided in an admissible form at trial, such as by live testimony.”
PAGE 13 – OPINION AND ORDER

After the FDA inspection was over, McCabe awarded spot bonuses to the individuals
who helped with the inspection. McCabe recommended to Vish Ananthan, the senior director
and general manager of TEC, that Plaintiff receive a low spot bonus of only $250. In her email to
Ananthan, McCabe explained that she “included Chris Linggi because he has done huge hours
but he is the cause of a lot of our issues—but its because he is in a job he hasn’t the experience or
knowledge of.” ECF 30-2 at 29. Anthanan responded and approved the spot bonuses but also
told McCabe that some of the people on the list to receive bonuses were also on the restructuring
list. This was the first McCabe learned that Plaintiff was on the RIF list. Ananthan explained to
McCabe that Plaintiff might be moving out of the Quality Department and into a role in the
Engineering Department. McCabe was supportive of this move, writing to Ananthan that she
believed Plaintiff “could work out in [an engineering] role.” ECF 30-2 at 30. After McCabe
learned that Plaintiff was on the RIF list and that there were tentative plans to move him to a role
in engineering, McCabe repeatedly followed up with Ananthan about when Plaintiff would be
changing roles. ECF 41-1 at 60, 61, 63. Neither Plaintiff nor anyone else involved in the FDA
inspection ever approached Beistline with any concerns about improper conduct during the
inspection. ECF 32 at 7.
Plaintiff struggled with whether to report the events that transpired during the FDA
inspection that he believed were unlawful. On October 7, after Plaintiff’s meeting with Andrews
when Andrews had mentioned restructuring and encouraged Plaintiff to transition to a position in

JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016). At trial,
Plaintiff will have to present this evidence in an admissible form. Defendant also asks that the
declaration of Ray Edwards be excluded under Rule 37(c) because it was not timely disclosed
under Rule 25(a) or (e). Because Defendant concedes that the evidence is not material, the Court
concludes that a sanction prohibiting Plaintiff from relying on the Edwards declaration is not
necessary.

PAGE 14 – OPINION AND ORDER

engineering, Plaintiff called a colleague in the Harrisburg, Pennsylvania office of TEC to report
the incident of the Plitek supplier file. This colleague forwarded his concerns to Alicia Zonetti,
the Assistant General Counsel for TEC, who contacted Plaintiff on October 11.
Plaintiff told Zonetti about his concerns regarding the Plitek form and an additional
concern about a slide presentation that had been revised improperly before it was presented to
the FDA inspector. Plaintiff also requested to remain anonymous, and to register his concerns as
an anonymous complaint. On October 17, 2016, Zonetti reported Plaintiff’s concerns to in-house
legal counsel in the Office of the Ombudsman for investigation, who in turn hired outside
counsel from the law firm Morgan, Lewis, & Bockius to assist. ECF 30-1 at 171-72. On
November 22, the Office of Ombudsman issued a finding that the alleged wrongdoing was
unsubstantiated. ECF 30-1 at 172. Plaintiff was not contacted during the investigation, though
McCabe and Ankrum were asked to provide documents from the FDA inspection. Although
McCabe and Ankrum were aware that a complaint had been made, both testified that they did not
know that Plaintiff had made it. ECF 30-1 at 140-41, 177.
McCabe continued to take issue with Plaintiff’s job performance. On September 18,
2016, she emailed Plaintiff asking that he send her whatever information he had on a “pareto of
complaint root causes.” ECF 45 at 15. Nine days later, McCabe followed up with Plaintiff,
having never received a response, and she copied Andrews. Id. Plaintiff responded that he would
send her the requested information by the close of business on September 28. When McCabe had
not received anything by October 3, 2016, she again informed Andrews, “giving [him] a heads
up that [she] still didn’t get this.” Id. On October 3, McCabe followed up directly with Plaintiff,
asking if he was going to send the information soon. On October 6, 2016, Plaintiff responded,

PAGE 15 – OPINION AND ORDER

promising to send the information by October 10. On October 11, McCabe forwarded the entire
email thread to Andrews with the comment “still no sign of this.” ECF 45 at 13.
On October 11, 2016 McCabe sent an email to Andrews with the subject line, “Chris’s
lack of knowledge of Quality Systems,” describing the biggest issues she had with Plaintiff,
including that he lacked even a basic understanding of internal audits. She also stated that
Plaintiff was “without exception the least reliable person” she had ever worked with. ECF 34-1
at 1. Additionally, Plaintiff missed an October 11 deadline for completing performance
evaluations of employees who reported to him. Plaintiff left for vacation on October 11, and in
his absence Andrews and Brenda Gilman from the human resources department had to complete
the performance evaluations instead. ECF 30-2 at 10-11.
On Plaintiff’s year-end performance review, given to him by Andrews on December 1,
2016, Plaintiff received “meets TE expectations” in nearly every performance objective except
for his “behavior” rating. Andrews explained that Plaintiff “often did not deliver on
commitments to requests by senior leadership and assigned blame on others in a manner that was
both unprofessional and unproductive.” ECF 41-1 at 81. Additionally, Andrews highlighted the
fact that Plaintiff “did not produce a comprehensive development and hiring plan for his team . . .
and failed to complete their performance reviews prior to being on vacation and having the
system lock.” ECF 41-1 at 81.
On December 1, 2016, Plaintiff made a second complaint about misconduct during the
FDA inspection, this time by filing a complaint through TEC’s internal “ConcernLine”
complaint system. This complaint was not made anonymously. The local Human Resources
representative Brenda Gilman was assigned to investigate this complaint. She was unable to
interview Plaintiff as part of the investigation because by that point he had already suffered his

PAGE 16 – OPINION AND ORDER

seizure and was on medical leave. Gilman, however, interviewed Andrews and Ankrum. Gilman
attempted to interview Plaintiff, but by then he had already retained legal counsel who had
instructed TEC not to contact Plaintiff.
D. TEC’s Termination of Plaintiff’s Employment in March 2017
In January 2017, Ananthan implemented a plan to hire a senior-level manager to take
over the Quality Department and restructure and reorganize that department. The reorganization
of the Quality Department took effect in January 2017, while Plaintiff was still on medical leave.
Ananthan hired Larry Rhodes as head of Global Quality for Surgical and Cables, and Rhodes
reported directly to McCabe. On January 26, Ananthan issued a company-wide announcement of
the reorganization of the Quality Department, including what he characterized as “a makeshift
role” for Plaintiff, albeit a much diminished one. Ananthan described Plaintiff’s position as
having been eliminated in the reorganization. Beistline also characterized the “new Quality
Organization” as having “eliminated” Plaintiff’s previous role.
In early March 2017, Beistline decided that Plaintiff should be transferred to the
engineering department rather than terminated and that if Plaintiff did not want to work in the
engineering department because he was unwilling to accept a downgrade in status he could
resign. After discussing this with Anthanan, Beistline changed her mind about her plan for
Plaintiff and determined that continuing with the original plan of terminating Plaintiff through
the RIF was the best option. Beistline concluded that there was not a position in engineering that
Plaintiff would accept, as Plaintiff had made clear that he would not accept a downgrade in status
or a non-managerial position. On March 6, 2017, Beistline emailed Ananthan about Plaintiff’s
status. Because Plaintiff was on a protected leave of absence, Beistline had reviewed the
scheduled changes to Plaintiff’s employment status with labor and employment counsel. In the
email, Beistline expressed that it was still possible for Plaintiff to move into the engineering
PAGE 17 – OPINION AND ORDER

position, but she also noted that his current position (or, at that point, prior position, as he had
been on a leave of absence for three months) had been eliminated in the restructuring.
After sending the email to Ananthan on March 6, 2017, Beistline and Ananthan had a
telephone conversation in which they agreed that continuing with the RIF was the best course of
action. Beistline did not consult with McCabe or Andrews regarding any of her decisions and
recommendations to Ananthan regarding Plaintiff’s inclusion on the RIF list at any time. On
March 17, 2017, TEC terminated Plaintiff’s employment and provided him with a severance
package.
DISCUSSION
A. Statutory Retaliation Claims
The Ninth Circuit has cautioned that there are “countervailing concerns” in the field of
workplace retaliation. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). “On the
one hand, we worry that employers will be paralyzed into inaction once an employee has lodged
a complaint[,] . . . making such a complaint tantamount to a ‘get out of jail free card’ for
employees.” Id. “On the other hand, we are concerned about the chilling effect on employee
complaints resulting from an employer’s retaliatory actions.” Id. Thus, courts try to strike a
balance between protecting employees who engage in protected activity and permitting
employers to make unbiased business decisions involving employees who have engaged in
protected activity.
At the summary judgment stage, courts apply the McDonnell Douglas burden-shifting
analysis, even to state law claims. See Snead v. Metro Prop. & Cas. Ins. Co., 237 F.3d 1080,
1093-94 (9th Cir. 2001) (citing McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973));
Larmanger v. Kaiser Found. Health Plan of the Nw., 895 F. Supp. 2d 1033, 1049 (D. Or. 2012)
(applying burden-shifting framework to a claim alleged under Or. Rev. Stat. § 659A.199). This
PAGE 18 – OPINION AND ORDER

analysis follows three steps. First, a plaintiff must establish a prima facie case of retaliation. If
the plaintiff can establish a prima facie case, then the defendant, the employer, “must articulate a
legitimate, nondiscriminatory reason for the challenged action[s].” Davis v. Team Elec. Co., 520
F.3d 1080, 1088-89 (9th Cir. 2008). Lastly, if the defendant “satisfies this burden,” the plaintiff
“must show that the ‘reason is pretextual either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.’” Id. (quoting Chuang v. Univ. of
Cal. Davis, 225 F.3d 1115, 1123-24 (9th Cir. 2000). Although the timing of an adverse
employment action can provide strong evidence of retaliation, “timing, standing alone, may be
insufficient to raise a genuine issue with respect to pretext.” Stegall v. Citadel Broad. Co., 350
F.3d 1061, 1070 (9th Cir. 2003).
“To establish a prima facie case of retaliation under Oregon Revised Statutes
§ 659A.199 . . . [a] [p]laintiff must show (1) she was engaging in a protected activity, (2) she
suffered an adverse employment decision, and (3) there was a causal link between the protected
activity and the adverse employment decision.” Larmanger, 895 F. Supp. 2d at 1049 (internal
quotation marks and citation omitted) (italics added). “The requisite degree of proof necessary to
establish a prima facie case [of retaliation] . . . is minimal and does not even need to rise to the
level of a preponderance of the evidence.” Tornabene v. Nw. Permanente, P.C., 156 F. Supp. 3d
1234, 1242 (D. Or. 2015) (citation omitted).
Under Oregon law, as under federal law, a plaintiff “must establish a ‘causal connection’
between a protected activity and the discharge.” Estes v. Lewis and Clark College, 152 Or.
App. 372, 381 (1998) (quoting Shockey v. City of Portland, 313 Or. 414, 423 (1992)). A “causal
connection” means that “the employee’s protected activity [was] a substantial factor in the

PAGE 19 – OPINION AND ORDER

motivation” for the adverse employment action. Id. at. 381. “[T]he employer’s wrongful purpose
must have been a factor that made the difference in the . . . [employer’s] decision.” Id. This
causal connection can be demonstrated through “circumstantial evidence, such as the employer’s
knowledge that the plaintiff engaged in protected activities and the proximity in time between the
protected action and the allegedly retaliatory employment decision.” Yartzoff v. Thomas, 809
F.2d 1371, 1376 (9th Cir. 1987).
Plaintiff focuses on two adverse employment actions that he alleges were retaliatory in
nature: his termination in March of 2017 and his performance review in December of 2016.
Plaintiff commenced this lawsuit on November 6, 2017, and so any adverse employments actions
occurring before November 6, 2016 are barred by the one-year statute of limitations. See Or.
Rev. Stat. § 659A.875.
1. Plaintiff’s Termination
a. Prima Facie Case
Plaintiff asserts that he engaged in protected activity between September 10 and
September 16, 2016, during the FDA inspection at TEC and TEC’s related preparation for that
inspection. TEC disputes this assertion. Viewing the facts in the light most favorable to the
nonmoving party, the Court concludes that the questions asked and the actions taken by Plaintiff
between September 10 and September 16 constitutes protected activity, or at least raises a
genuine issue for trial. Further, during the evening of September 10, after Plaintiff raised his first
concerns with McCabe (to whom Plaintiff reported in a “dotted line” relationship), McCabe sent
an email to Andrews (to whom Plaintiff directly reported), stating, among other things, that
Plaintiff “has no clue how to protect us” and is “more a risk” than an “asset.” On or about
September 16, McCabe told Ankrum (who also participated in the FDA inspection) that Plaintiff
“has got to go.”
PAGE 20 – OPINION AND ORDER

Plaintiff also engaged in protected activity on October 7, 2016, when he filed a formal
complaint with TEC. Two days later, on October 9, Plaintiff asked TEC’s human resources
department whether Plaintiff was going to be affected by the upcoming restructuring. Andrews
responded by telling Plaintiff that his conclusions about his position being affected by a
restructuring were “incorrect and premature.” For purposes of summary judgment, the Court
draws all reasonable inferences in the light most favorable to the nonmoving party and concludes
that Andrews was telling Plaintiff that no final decision had been made to terminate Plaintiff’s
employment. Indeed, in October 2016, TEC was still considering whether to transfer Plaintiff to
TEC’s engineering department, rather than terminating his employment. Also, in November, the
proposed RIF termination date for Plaintiff was again postponed.
Plaintiff engaged in another protected activity on December 1, 2016. Three months later,
in early March 2017, Beistline (with TEC’s human resources department) decided that Plaintiff
should be transferred to the engineering department, rather than terminated. Nevertheless, after
Beistline spoke with Ananthan later that month, TEC terminated Plaintiff’s employment on
March 17, 2017.
The Ninth Circuit has held that, under Title VII, “[e]ssential to a causal link is evidence
that the employer was aware that the plaintiff had engaged in the protected activity.” Cohen v.
Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). McCabe states that she did not know that
Plaintiff had any concerns during the FDA inspection because his statements were ambiguous.
Plaintiff responds that McCabe understood that he was engaging in whistleblowing activity
during the audit. Viewing all reasonable inferences in favor of the nonmoving party, this dispute
presents a genuine issue of fact for the jury. Plaintiff suffered an adverse employment action on

PAGE 21 – OPINION AND ORDER

March 17, 2017, when TEC terminated his employment. Further, this occurred within the
limitations period. Thus, Plaintiff has shown a prima facie case of unlawful retaliation.
b. Pretext
“The next step in the McDonnell Douglas framework requires the employer to give
legitimate non-[retaliatory] reasons” for the adverse employment action. Davis, 520 F.3d
at 1091. Defendant argues that it did not terminate Plaintiff because of his protected activity, but
instead terminated him in the course of a previously scheduled RIF. Defendant maintains that it
had a legitimate, lawful, reason for terminating Plaintiff—because his name was on the RIF
list—and that it had a legitimate, lawful reason for placing Plaintiff’s name on the RIF list
because Plaintiff’s role was in flux and greatly diminished and he was one of the highest paid
employees.
On July 14, 2016, Andrews recommended that Plaintiff’s name be placed on the list of
potential RIF candidates, but also noted the possibility that Plaintiff might be transferred to
another position, not terminated outright. Plaintiff’s name remained on the RIF list when
Beistline sent an email on July 17, attaching the list of employees who had been suggested for
inclusion in the RIF. As previously discussed, Plaintiff first engaged in protected activity
between September 10 and September 16. TEC argues that Beistline had no knowledge of
Plaintiff’s protected activity and was unaware of the events concerning the FDA audit when she
sent another email with Plaintiff’s name on the RIF list on September 13. TEC also argues that
TEC’s corporate and legal departments had no knowledge of Plaintiff’s protected activity.
“Employers need not suspend previously planned” employment actions upon learning
that an employee made a protected complaint, “and their proceeding along lines previously
contemplated, though not definitely determined, is no evidence whatever of causality.” Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001). TEC argues that it proceeded “along
PAGE 22 – OPINION AND ORDER

lines previously contemplated, though not definitively determined” when it terminated Plaintiff’s
employment in March 2017. TEC further argues that a decision to include an employee in a
reduction in force can be a legitimate, lawful explanation for an employee’s termination, as long
as the employer has an individualized explanation for why that employee was included in the
reduction in force. Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1212 (9th Cir. 2008). “To
meet its burden, the employer must explain why it selected the plaintiff in particular for the
layoff.” Davis, 520 F.3d at 1094. In Diaz, the Ninth Circuit concluded that an employer’s
concerns about damage caused to company property provided an individualized, legitimate, nondiscriminatory reason for including two employees in a reduction in force, but simply stating that
an employee was terminated pursuant to a reduction in force was insufficient to establish a
lawful reason for the employer’s actions. Diaz, 521 F.3d at 1212.
According to TEC, Andrews gave specific, individualized reasons for Plaintiff’s
inclusion on the RIF list, including that Plaintiff was one of the highest paid employees and his
role at TEC was in flux and had shrunk in scope. Further, when Plaintiff began working in the
Quality Department in November 2015, he supervised five employees. By the summer of 2016,
that number had been reduced to three. Additionally, Andrews explained that Plaintiff’s role was
one that the company could do without because Plaintiff’s position was redundant with the
on-site quality manger role. TEC maintains that these legitimate reasons for including Plaintiff’s
name on the RIF list all pre-date any protected activity by Plaintiff. Thus, argues TEC, Plaintiff’s
protected activity, beginning in September 2016, could not have contributed to Andrews’
decision to place Plaintiff’s name on the RIF list in July 2016. TEC concludes that it has
articulated a legitimate, nonretaliatory explanation for Plaintiff’s termination.

PAGE 23 – OPINION AND ORDER

Employers need not deviate from a previously planned course of action just because an
employee later engages in protected activity. See Larmanger v. Kaiser Found. Health Plan of the
Nw., 895 F. Supp. 2d 1033, 1051 (D. Or. 2012). In Larmanger, the plaintiff’s supervisor had
drafted a corrective action against the plaintiff in December 2008, the plaintiff made a protected
hotline complaint in February 2009, and the plaintiff received the corrective action in June 2009.
Id. Therefore, although the plaintiff in Larmanger did receive a corrective action after she made
a protected complaint, “it had already been decided” that the plaintiff would receive the
corrective action before she engaged in protected conduct, and therefore the corrective action
could not have been retaliatory. Id. “An employer who has decided upon a new policy is not
guilty of unlawful retaliation simply because it proceeds with the implementation of that policy
after learning that one of the employees who will be affected thereby has recently engaged in a
protected activity.” Cohen v. Fred Meyer, Inc., 686 F.2d 793, 797 (9th Cir. 1982); see also Huitt
v. Optum Health Servs., 216 F. Supp. 3d 1179, 1193 (D. Or. 2016) (finding that because
employer’s decision to remove Plaintiff from Admin post came before Plaintiff made report of
unlawful conduct, “Plaintiff has not established a causal connection”).
TEC’s RIF list, however, was an evolving document. If an employee retired or resigned,
a name might be removed from the list. Although Plaintiff’s inclusion on the RIF list was first set
in motion in July 2016, Plaintiff was not actually terminated until March 17, 2017, after he
engaged in protected activities. Further, in October 2016, Andrews met with Plaintiff and
encouraged him to take a position in the engineering department with Bill Veith, and Vieth
offered Plaintiff a job in that department. Similarly, Ananthan and Beistline postponed Plaintiff’s
scheduled termination in November 2016. These actions show that it was not a forgone
conclusion that TEC would terminate Plaintiff’s employment.

PAGE 24 – OPINION AND ORDER

Indeed, in March of 2017, shortly before Plaintiff was terminated, Beistline again
proposed transferring Plaintiff to the engineering department instead of terminating him.
Therefore, although the Supreme Court has recognized that “proceeding along lines previously
contemplated, though not definitely determined, is no evidence whatsoever of causality,” the
decision to terminate Plaintiff was not only not definitively determined, but twice was nearly
averted.4 Breeden, 532 U.S. at 272.
Plaintiff adds that the RIF list was not set in stone for many employees, and many
individuals whose names were on the RIF list were not ultimately terminated. Beistline described
the RIF list as “pretty dynamic” and stated that “until people walk out the door nothing is ever
final.” ECF 30-1 at 106. Not including Plaintiff, at least 15 people on the original RIF list (of the
names not redacted) had not been terminated by February 2017. See Pl.’s Ex. 34 (ECF 41-1
at 102). Thus, there is a genuine dispute of fact as to how firm or fixed the RIF list was and how
previously planned the proposed terminations actually were. In light of the dynamic and evolving
nature of the RIF list, and the fact that on three occasions TEC deviated from the previously
planned action of terminating Plaintiff, the Court concludes that a jury must decide whether the
RIF was a legitimate, nonretaliatory reason for Plaintiff’s discharge or whether the RIF was a
pretext for a retaliatory motive.
c. Causation
Plaintiff asserts a theory of “cat’s paw” causation. He argues that McCabe disparaged
him to Ananthan, who was the ultimate decisionmaker responsible for Plaintiff’s termination,

4

TEC argues that Plaintiff has pointed to no evidence that TEC ever intended to keep
Plaintiff in his position as a Quality Systems Manager, but the decision to eliminate Plaintiff’s
position does not equate to a decision to terminate Plaintiff’s employment, as is evidenced by the
fact that TEC considered eliminating Plaintiff’s position yet transferring him to engineering
rather than terminating his employment altogether.

PAGE 25 – OPINION AND ORDER

and in doing so influenced Ananthan’s decision to terminate Plaintiff. Under the “cat’s paw”
theory:
if a subordinate, in response to a plaintiff's protected activity, sets
in motion a proceeding by an independent decisionmaker that leads
to an adverse employment action, the subordinate's bias is imputed
to the employer if the plaintiff can prove that the allegedly
independent adverse employment decision was not actually
independent because the biased subordinate influenced or was
involved in the decision or decisionmaking process.
Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007); see Osanna v. Nike, Inc., 290 Or. App.
16, 30-31 (2018) (recognizing that Poland’s “articulation of the imputation of the subordinate
bias theory” applies to Oregon whistleblowing claims).
On September 15, McCabe emailed Ananthan about awarding spot bonuses to employees
who helped out during the FDA inspection. ECF 41-1 at 56. McCabe proposed giving a bonus to
Plaintiff, but stated that “he is a cause of a lot of our issues—but its [sic] because he is in a job he
hasn’t the experience or knowledge of.” Id. Later, McCabe wavered on whether Plaintiff should
get a bonus, stating that “I cannot justify giving him a financial reward.” Id. at 61. After McCabe
learned that Plaintiff was going to be leaving his role in the Quality Department, and possibly
moving to engineering, McCabe followed up repeatedly with Ananthan on the progress of
Plaintiff’s transition. On September 20, McCabe wrote, “I want to chat to you on Chris L and
next steps to move him on . . . I just want to start the conversation. You heard Paraic— Quality is
too high a risk for our business. Also, I have completely changed my mind on including
[Plaintiff] in the recognition—its [sic] sending the wrong message when he isn’t performing.”
Id. at 63 (emphasis added). On September 22, she again followed up with Ananthan on “[n]ext
steps on moving Chris Linggi to Bill Vieth’s org . . . so I can start to a recruit a new senior QE
for the QMS position (Chris’s backfill)?” Id. at 61. If McCabe’s criticisms of Plaintiff influenced
Ananthan’s perception of Plaintiff as a bad employee, or a risk to the company, then Ananthan
PAGE 26 – OPINION AND ORDER

might have been more inclined to terminate Plaintiff rather than keep him within the company.
And, although Beistline says that she was the one who convinced Ananthan to terminate
Plaintiff, Ananthan was the ultimate decisionmaker.5
Defendant argues that a cat’s paw theory cannot apply to Plaintiff’s claims here because
neither Ananthan nor Beistline made RIF decisions in response to a proceeding set in motion by
Andrews or Mccabe. Because Plaintiff’s name was first placed on the RIF list in July 2016,
Defendant argues, McCabe and Andrews could not have set in motion adverse employment
actions against Plaintiff. But, as discussed above, the RIF list was far from final in July 2016,
and in both October 2016 and March 2017 there were serious plans to not terminate Plaintiff and
instead move him to the engineering department. As late as March 2017, just days before
Plaintiff’s termination, Beistline recommended that Ananthan give Plaintiff the option to move
to the engineering department. ECF 32-1 at 22; ECF 30-1 at 110-11.
Defendant argues that there is no evidence that McCabe ever influenced Ananthan
regarding Plaintiff. Defendant argues that this case is like Cafasso v. General Dynamics C4
Systems, Inc., where the Ninth Circuit found that a “cryptic statement” that perhaps the
supervisor had been influenced by unknown “people” who had “poisoned the water” for the
plaintiff was insufficient to survive summary judgment on a cat’s paw theory of liability. 637
F.3d 1047, 1061 (9th Cir. 2011). In Cafasso, the Ninth Circuit concluded that, although the chain
of influence from subordinates to the decision maker “could conceivably have occurred, it [did]
not give rise to a reasonable inference that it did in fact occur.” Id.

5

Additionally, at this point, Plaintiff had made his December 1 complaint, which was not
anonymous, and Brenda Gilman, in the same human resources office as Beistline, had begun a
formal investigation and was attempting to interview Plaintiff. ECF 30-2 at 24.

PAGE 27 – OPINION AND ORDER

The evidence in this record, however, shows that McCabe emailed Ananthan multiple
times to discuss Plaintiff in a highly critical manner. Although Defendant urges the Court to read
the emails in an uncritical light, at this stage the Court draws all reasonable inferences in favor of
Plaintiff. Plaintiff has set forth “non-speculative evidence of specific facts” that McCabe
communicated with Ananthan about Plaintiff’s job performance in a negative manner. Id. If,
when considering whether to transfer Plaintiff or terminate him, Ananthan was influenced by
McCabe’s criticisms of Plaintiff, his job performance, and whether he was a risk to the company,
there is a fact dispute whether a “biased subordinate” might have influenced the decisionmaker.
Poland, 494 F.3d at 1182. Whether McCabe’s criticisms were caused by retaliatory animus and
whether those criticisms ultimately influenced Ananthan to terminate Plaintiff rather than
transfer him are questions for the jury.
2. Plaintiff’s Performance Review
“[A]n undeserved negative performance review can constitute an adverse employment
decision.” Brooks, 229 F.3d at 929. To constitute a retaliatory adverse employment action,
however, the performance review must not only be undeserved, but it must be causally
connected, like any other adverse employment action in a retaliation case, to the employee’s
protected activity. It is not this Court’s job to determine whether the negative performance
review was “wise, fair, or even correct” so long as the performance review was not motivated by
retaliatory animus. Hawkins v. PepsiCo, Inc., 203 F.3d 2754, 279 (9th Cir. 2000). TEC offers a
legitimate, non-retaliatory explanation for its actions.
On December 1, 2016, Andrews met with Plaintiff to deliver his annual performance
review. Plaintiff received a rating of “meets TEC expectations” in every category on his review
except one, TE Values and SET (Strategy, Execution, Talent) Behaviors. Plaintiff alleges that his
rating of “Below TE Standards” in this category was in retaliation for his protected activity. In
PAGE 28 – OPINION AND ORDER

the notes explaining why Plaintiff was receiving a below standards rating in that category,
Andrews wrote that “Chris often did not deliver on commitments to requests by senior leadership
and assigned blame on others in a manner that was both unprofessional and unproductive. . . .
Chris did not produce a comprehensive development and hiring plan for his team to provide a
roadmap to success and failed to complete their performance reviews prior to being on vacation.”
ECF 30-2 at 6.
This performance review implicitly refers to Plaintiff’s failure to provide McCabe with a
“pareto of root causes” for several weeks after she asked for it. ECF 45 at 5. McCabe initially
requested this work from Plaintiff on September 18, but as of October 11, despite numerous
follow up emails, Plaintiff had not yet provided it to her. In Plaintiff’s declaration, he states that
this criticism was unfair because McCabe did not provide any negative feedback on the report
that he ultimately produced for her, but it is undisputed that he did not produce the report in a
timely fashion. ECF 39 at 17 (“the project took much longer than expected”). During his
deposition, Plaintiff recognized that “with the project for [McCabe, he] could have definitely
improved [his] accountability to her.” ECF 30-1 at 59. He stated that he “should have done a
better job communicating the challenges” that he was facing to McCabe. ECF 30-1 at 58. Thus,
although Plaintiff argues that the work he ultimately submitted did not receive any negative
feedback, he does not dispute the fact that the work was not completed on the timeline McCabe
had asked for. Plaintiff’s negative performance review did not take issue with the quality or
substance of his work, only with his ability to deliver it. When asked about the performance
review’s assessment that he assigned blame on others, Plaintiff responded by saying that many
issues were the fault of his predecessor, “the person . . . that was removed in the organization
earlier . . . I essentially had to fix all of her work. It wasn’t a blame . . . I can see how maybe

PAGE 29 – OPINION AND ORDER

blaming somebody, but, no, it was actually trying to get this.” ECF 30-1 at 59. Although Plaintiff
believed that many issues were, in fact, the fault of his predecessor and not his own fault, he does
not dispute that he frequently attributed problems to her.
The performance review also mentioned Plaintiff’s failure to complete the performance
reviews for his staff before going on vacation. Plaintiff’s performance reviews for his
subordinates were due on October 11, but on October 18, Plaintiff’s supervisor, Andrews, texted
him asking why the ratings were not entered for Plaintiff’s subordinates. ECF 43 at 3. Plaintiff
told Andrews via text what his recommendations were going to be, but never entered his
performance reviews into the system because Andrews and Ananthan did it while he was away.
ECF 43 at 5. Although Plaintiff argues that he did in fact complete the performance reviews,
Plaintiff concedes that he “misunderstood the due date” and failed to give the performance
reviews to his supervisor before the deadline. ECF 39 at 18. In his deposition, he stated that he
would “take accountability for not reading that part of it” leading to misunderstanding the
deadlines. ECF 30-1 at 61. During his deposition, Plaintiff described this criticism as “fair,
because . . . [t]here was a misunderstanding on [his] part on the timeline.” ECF 30-1 at 60.
Plaintiff, thus, has failed to establish any genuine dispute of material fact as to the cause
of the “Below TE Standards” rating in his performance review. Defendant has presented a
legitimate, non-retaliatory reason for the review, and Plaintiff does not dispute the factual bases
underlying the critiques or otherwise show that they are pretextual. Because Plaintiff has failed
to rebut Defendant’s legitimate reasons for the “below expectations” rating in the behavior
category, Plaintiff has failed to prove a causal link between his protected activity and the
negative performance review. See Hardage v. CBS Broad., Inc., 427 F.3d 1177, 1189 (9th Cir.
2005) (finding that the plaintiff failed to rebut legitimate reasons for adverse performance

PAGE 30 – OPINION AND ORDER

memoranda when it was undisputed that the plaintiff engaged in the activities discussed in the
memoranda). Thus, on this issue, TEC’s alternative motion for partial summary judgment is
granted.
B. Or. Rev. Stat. § 659A.030(f)
Plaintiff also brings retaliation claims under Or. Rev. Stat. § 659A.030(f). This statute
prohibits discharging, expelling, or otherwise discriminating against individuals who oppose an
unlawful practice “under this chapter.” That same statute, titled “Discrimination due to race,
color, religion, sex, sexual orientation, national origin, marital status or age” outlines unlawful
employment practices specifically in terms of discrimination against a protected class. See Pool
v. VanRheen, 297 F.3d 889, 910 (9th Cir. 2002). Because Or. Rev. Stat. § 659A.199 prohibits
whistleblower retaliation, Plaintiff argues, whistleblower retaliation is an unlawful practice
“under this chapter,” meaning under Chapter 659A, and therefore Or. Rev. Stat. § 659A.030(f)
provides a cause of action for violations of Or. Rev. Stat. § 659A.199. But Plaintiff did not
oppose whistleblower retaliation made unlawful under Chapter 659A of the Oregon Revised
Statutes, he opposed what he believed to be violations of FDA regulations along with violations
of unspecified state law or TEC policies. Plaintiff did not oppose a practice made unlawful under
Chapter 659A. Additionally, Or. Rev. Stat. § 659A.199 already provides its own cause of action.
“Therefore, if 659A.030(1)(f) provided a cause of action for violations of Section 659A.199, it
would be redundant and unnecessary.” Bauer v. Old Dominion Freight Line, Inc., 2019 WL
339404, at *4 (D. Or. Jan. 28, 2019). “This further compels the Court's conclusion that
659A.030(1)(f) protects against discrimination based on a protected class and does not also
encompass prohibitions on retaliation for whistleblowing [under] Section 659A.199.” Id.
Accordingly, Plaintiff’s claims under Or. Rev. Stat. § 659A.030(f) are dismissed.

PAGE 31 – OPINION AND ORDER

C. Common Law Wrongful Discharge
“Under Oregon law, the common law remedy for wrongful discharge or termination is
available only in the absence of an adequate statutory remedy.” Arnold v. Pfizer, Inc., 970 F.
Supp. 2d 1106, 1145 (D. Or. 2013). In several cases decided in the District of Oregon, the district
court has repeatedly held that Or. Rev. Stat. 659A.030 and 659A.199 provide an adequate
statutory remedy to plaintiffs complaining of retaliation or discrimination in the workplace,
precluding a common law wrongful discharge claim. See, e.g., Battan v. Allwest Underground,
Inc., 2008 WL 4191467, at *4 (D. Or. Sept. 5, 2008). “This Court has previously found that a
common law wrongful discharge claim provides the same remedies as a whistleblower retaliation
claim under ORS § 659A.199 and that two claims cannot be pursued simultaneously when based
upon the same conduct.” Luke v. Target Corp., 2018 WL 2144347, at *2 (D. Or. May 9, 2018).
Although Plaintiff urges the Court to reconsider the prior decisions in this district, there is no
basis to do so. Thus, on this issue as well, TEC’s alternative motion for partial summary
judgment is granted.
CONCLUSION
Defendant’s Motion for Summary Judgment or, Alternatively, for Partial Summary
Judgment (ECF 29) is granted in part and denied in part. Plaintiff’s claim under Or. Rev. Stat. §
659A.199 challenging the termination of his employment may proceed to trial.
IT IS SO ORDERED.
DATED this 3rd day of July, 2019.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 32 – OPINION AND ORDER