Jones v. U.S. Bancorp
Filing
52
ORDER: Denying Defendant's Motion to Strike 43 ; Order Granting in Part Denying in Part Defendant's Motion for Summary Judgment 21 . Denied as to Plaintiff's race discrimination claims based on his termination and Granted as to Plaintiff's hostile work environment, IIED, and RIED claims. Signed on 7/11/2011 by Chief Judge Ann L. Aiken. (lg)
. ,...= . .
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....
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TROY JONES,
Civ. No. 10-6l33-AA
OPINION AND ORDER
Plaintiff,
v.
U.S. BANK NATIONAL ASSOCIATION,
a Delaware corporation, dba
U.S. BANK,
Defendant.
Kevin T. Lafky
Lafky & Lafky
429 Court Street NE
Salem, OR 97301
Attorney for plaintiff
Amanda M. Walkup
Todd R. Johnston
Mario D. Conte
Hershner Hunter, LLP
180 E. 11th Avenue
P.O. Box 1475
Eugene, OR 97440
Attorneys for defendant
AIKEN, Chief Judge:
Plaintiff
1
Troy
- OPINION AND ORDER
Jones
filed
suit
against
his
employer,
defendant U.S. Bank, alleging claims of racial discrimination and
ho.stile work environment under 42 U.S.C.
and Or. Rev. Stat.
intentional
2000e, 42 U.S.C.
§
1981,
659A.030, as well as common law claims of
and
reckless
infliction
seeks
Plaintiff
damages,
§
§
economic
and
and attorney fees.
of
emotional
non-economic
U. S.
distress.
damages,
punitive
Bank now moves for summary
judgment on all of plaintiff's claims.
For the reasons given
below, U.S. Bank's motion is granted in part and denied in part.
I. BACKGROUND
U.S. Bank employed plaintiff from February 3, 2007 to April
24, 2009.
Plaintiff's first supervisor was Kathy Waisanen, Branch
Manager of the Royal and Danebo branch in Eugene, Oregon.
Waisanen
and plaintiff worked together previously at another financial
institution, and after Waisanen joined U.S. Bank, she recruited and
hired plaintiff as a Branch Assistant I.
In July 2007, plaintiff was promoted to Branch Manager at the
18th and Chambers branch in Eugene.
Manager for U. S.
supervisor.
Bank,
Brian Bogatin, the District
promoted plaintiff and was his direct
Waisanen recommended plaintiff for this promotion.
After his promotion, plaintiff alleges that during a lunch
meeting of Branch Managers, Waisanen told plaintiff that he was °a
big black intimidating guy and you need to be careful in how you
talk to your crew and customers.that this statement was made.
2
- OPINION AND ORDER
PI.'s Decl., '8.
U.S. denies
According to U. S.
Bank,
plaintiff's performance as Branch
Manager did not meet the expectations of Bogatin in terms of
financial production.
u.s. Bank also asserts that plaintiff failed
to establish consistent management routines and was the subject of
staff complaints.
Ultimately, Bogatin told plainti
that he could
either keep his position as Branch Manager and meet improvement
benchmarks or transfer to another position.
In September 2008, plaintiff returned to the Royal and Danebo
Branch as a Branch Assistant II.
Waisanen was again plaintiff's
immediate supervisor.
After he returned to the Royal and Danebo Branch, plaintiff
contends that he was the subject of several racial remarks by coworkers, two of which were uttered in Waisanen's presence.
On one
occasion, a U.s. Bank employee was looking at pictures of other
U.S. Bank employees that were placed on a wall in the bank.
After
seeing plaintiff's picture on the bottom row, the employee made a
comment about "always trying to keep the black man down."
Decl.,
~
12.
PI.'s
Waisanen allegedly heard this comment and laughed.
Plaintiff also asserts that a co-manager called him "buckwheat" on
several
occasions,
once
in
Waisanen's
presence.
Plaintiff
maintains that, to his knowledge, Waisanen did not reprimand or
otherwise take action regarding this comment.
PI.'s Decl.
~
13.
U.s. Bank denies these allegations.
In April 2009, plaintiff personally loaned a bank customer
3
- OPINION AND ORDER
$50.00.
U.S. Bank's Code of Ethics and Business Conduct prohibits
employees from lending money to customers.
Waisanen Decl., Ex. 3.
Plaintiff attempted to collect the money by calling the customer
multiple times at her home and place of employment and eventually
left a voicemail message with the customer.
Pl.'s Depo., p. 159
(attached to Conte Decl.).
On April 24,
2009, plaintiff told Waisanen that he loaned
money to a customer and that the customer might contact U.S. Bank
to complain about him.
On the same day,
the customer called
Waisanen and told her about the loan and plaintiff's attempts to
collect the money.
169-170.
Waisanen Decl.,
14, Ex. 2; Pl.'s Depo., pp.
~
The customer told Waisanen about plaintiff's voicemail
message and said that plaintiff's attempts to collect the money
were upsetting to her and felt threatening.
Ex. 2.
Waisanen Decl.,
~
14,
Later on April 24, 2009, the customer and Waisanen met in
the parking lot of the Royal and Danebo branch, and
Waisanen
listened to the
phone.
Waisanen Decl.,
voicemail message
~
IS, Ex. 2.
on
the
customer's
Plaintiff's stated in the message
that if the customer did not pay back the money, plaintiff would go
to her place of employment every day.
When
message,
Waisanen
confronted
Waisanen Decl.
Plaintiff
he did not deny leaving it.
about
the
~
, Ex. 2.
voicemail
Waisanen Declo,
~
16.
Waisanen then terminated plaintiff's employment.
U.S. Bank contends that it terminated plaintiff for violating
4
- OPINION AND ORDER
its Code of Ethics by loaning money to a bank customer and making
several
efforts
to
collect
threatening to the customer.
pp. 175, 180.
race.
that
debt
in
a
Waisanen Decl.,
manner
~
that
felt
18; Pl.'s Depo.,
Plaintiff contends he was terminated because of his
Plaintiff alleges that when Waisanen fired him, she said, MI
have told you before, you are a big intimidating black man, and you
have to watch what you say."
PI.' s Declo,
~
31.
U. S. Bank denies
this allegation.
II. STANDARD
Summary judgment is appropriate Mif 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."
56(a).
Fed.
R. Civ.
P.
The materiality of a fact is determined by the substantive
law on the issue.
T.W. Elee. Serv., Inc. v. Pac. Elee. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
The authenticity of a
dispute is determined by whether the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of
a genuine issue of material fact.
U.S. 317, 323 (1986).
Celotex Corp. v. Catrett, 477
If the moving party shows the absence of a
genuine issue of material fact, the nonmoving party must go beyond
the pleadings and identify facts which show a genuine issue for
trial.
5
Id. at 324.
- OPINION AND ORDER
Special rules of construction apply to evaluating surrunary
judgment motions: (1) all reasonable doubts as to the existence of
genuine issues of material fact should be resolved against the
moving
party;
and
(2)
all
inferences
to
be
drawn
from
the
underlying facts must be viewed in the light most favorable to the
nonmoving party.
T.W. Elec., 809 F.2d at 630.
Nevertheless, the
Ninth Circuit has refused to find a genuine issue of fact where the
only
evidence
testimony.
presented
is
"uncorroborated
and
self-serving"
Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir.
1996) .
III. DISCUSSION
A.
Disparate Treatment
Plaintiff
alleges
race
under Title VII, 42 U.S.C.
§
discrimination/disparate
1981, and Or. Rev. Stat.
§
treatment
659A.030.
Specifically, plaintiff alleges that he was demoted, terminated,
and treated differently due to his race.
U.S. Bank moves for
surrunary judgment on these claims, arguing that plaintiff cannot
establish a prima facie case of race discrimination, and that he
was terminated for legitimate and non-discriminatory reasons.
To prevail on his race discrimination claims, plaintiff must
establish a prima facie case of discrimination.
Surrell v. Cal.
Water Service Co., 518 F.3d 1097, 1105 (9th Cir. 2008); Vasquez v.
County of Los Angeles, 349 F.3d 634, 640 (9th cir. 2003); Pullom v.
U.S. Bakery, 477 F. Supp. 2d 1093, 1100 (D. Or. 2007).
6
- OPINION AND ORDER
A plaintiff
may establish a prima facie case through direct or circumstantial
evidence
of
discriminatory
intent
or
other
circumstances
surrounding the adverse employment action that "give rise to an
inference of discrimination. H
Burdine, 450 U.S. 248, 253
Texas Dep't of Cmty. Affairs v.
(1981); Surrell, 518 F.3d at 1105.
Direct evidence typically consists of sexist,
racist,
or other
discriminatory conduct "'which, if believed, proves the fact [of
discriminatory animus J without inference or presumption. '
H
413 F.3d 1090, 1095 (9th Cir. 2005)
Coghlan
(quoting
Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)).
Plaintiff may also establish a prima facie case under the
McDonnell Douglas framework.
See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Surrell, 518 F.3d at 1105.
show
that:
1)
he
belonged
to
a
Plaintiff must
protected class;
2)
he
was
performing his job in a satisfactory manner; 3) he was subjected to
an adverse employment action; and 4) similarly situated employees
outside his protected class received favorable treatment.
Kang v.
U. Lim Am., Inc., 296 F.3d 810, 818 (9th Cir. 2002).
U.S. Bank maintains that plaintiff has no evidence of direct
discriminatory conduct and cannot show establish a prima facie case
based on circumstantial evidence.
While U.S. Bank admits that
plaintiff is a member of a protected class and was subjected to an
adverse employment action,
it maintains that plaintiff did not
perform his job satisfactorily and was not treated differently from
7
- OPINION AND ORDER
similarly-situated employees.
In
terms
of
job
performance,
U.S.
Bank
plaintiff violated U. S. Bank's Code of Ethics.
emphasizes
that
U. S . Bank also
maintains that it received a complaint from a customer who said
that plaintiff asked her out for a date while on company time, and
that plaintiff asked a co-worker to remove fees from plaintiff's
U. S.
Bank account in violation of U. S.
Decl.,
~~
11, 12.
Bank policy.
Waisanen
U.S. further Bank argues that plaintiff cannot
show similarly-situated employees were treated differently, because
he identifies no U.S. Bank manager who was treated more leniently
for
violating
the
Code
of
Ethics.
In
response,
plaintiff
emphasizes that he received commendations and positive feedback
during his employment, and disputes that he received any type of
reprimand prior to his termination.
Lafkey Decl., Exs. 1, 2.
Further, plaintiff argues that U. S.
Bank employees outside his
protected
class
were
counseled
and
subject
to
progressive
discipline for violations of U.S. Bank policy, while he was subject
to immediate termination. 1
Even
though
plaintiff
relies
on
the
McDonnell
Douglas
1U.S. Bank moves to strike plaintiff's evidence regarding
other employees, arguing that such evidence lacks foundation,
constitutes hearsay, and is not based on plaintiff's personal
knowledge. However, the documents on which plaintiff relies were
produced by U.s. Bank and arguably fall within the business
records exception to hearsay. Regardless, consideration of this
evidence is not necessary for purpose of this motion, as I find
that plaintiff presents evidence of direct discrimination.
8
- OPINION AND ORDER
framework to establish his prima facie case, I find that plaintiff
establishes
a
prima
facie
case
based
on
direct
evidence.
Waisanen's alleged labeling of plaintiff as a ftbig intimidating
black man" who ftneeds to watch what" he says constitutes direct
evidence that plaintiff's race,
and stereotypes related to his
race, played a role in Waisanen's decision to terminate plaintiff's
employment.
See Cordova v. State Farm Ins. Cos., 124 F.3d 1145,
1149 (9th Cir. 1997) (calling an employee a ftdumb Mexican" was ftan
egregious
and
bigoted
insult"
discriminatory animus").
and
Further,
was
ftstrong
evidence
of
plaintiff alleges that this
comment was similar to one Waisanen made during a Branch Managers'
meeting.
PI. ' s
Declo,
Sf
ftWhere a decisionmaker makes a
8.
discriminatory remark against a member of the plaintiff's class, a
reasonable
fact finder
may
conclude
that
played a role in the challenged decision."
discriminatory animus
Dominguez-Curry v. Nev.
Transp. Dep't, 424 F.3dl027, 1038 (9thCir. 2005).
Thus, drawing
all reasonable inferences in favor of plaintiff, a jury could find
that Waisanen's comment to plaintiff is evidence of racial animus
with respect to his termination.
However,
evidence
that
I agree with U. S.
his
demotion
was
Bank that plaintiff offers no
motivated
by
discrimination.
Plaintiff cites no facts to support the conclusion that Bogatin's
offer to plaintiff to remain Branch Manager or transfer to the
Branch Assistant II position was motivated by plaintiff's race, or
9
- OPINION AND ORDER
that other similarly situated managers received more favorable
treatment.
Rather, plaintiff speculates that Waisanen attempted to
influence Bogatin's opinion of him and sabotage plaintiff's success
as a Branch Manager after Bogatin told Waisanen that her branch
should be more like plaintiff's.
See PI.' s Declo, 'll'll 6, 7, 9.
However, other than his unsupported speculation, plaintiff offers
no admissible evidence to support his contention that Waisanen made
derogatory
remarks
about
plaintiff
to
Bogatin.
Regardless,
plaintiff does not present evidence that his demotion or Waisanen's
"sabotage" was motivated by his race.
PI. ' s Depo., pp. 96-97.
Given the direct evidence of discrimination with respect to
plaintiff's
termination,
the
burden
shifts
to
U.S.
Bank
to
articulate legitimate, nondiscriminatory reasons for its employment
action.
Burdine, 450 U.S. at 253; Surrell,518 F.3d at 1106.
U.S.
Bank maintains that plaintiff was fired because he personally
loaned money to a bank customer in violation of U.S. Bank policy
and then made several attempts to collect that loan, resulting in
a complaint from the customer regarding plaintiff's behavior.
plaintiff does not dispute these facts, and I therefore find that
U. S.
Bank presents a legitimate,
non-discriminatory basis
for
plaintiff's termination.
Once U.S. Bank articulates a legitimate, nondiscriminatory
reason for plaintiff's termination,
the burden shifts back to
plaintiff to raise a question of fact that U.S. Bank's reasons are
10 - OPINION AND ORDER
pretextua1.
pretext
Burdine, 450 U. S. at 253.
fteither
discriminatory
directly
reason
more
by
Plaintiff may establish
persuading
likely
the
motivated
court
the
that
employer
a
or
indirectly by showing that the employer's proffered explanation is
unworthy of credence."
Id. at 256.
Given that direct evidence is
more probative than indirect or circumstantial evidence, plaintiff
needs ft very little" to defeat summary judgment.
Coghlan, 413 F.3d
at 1095 (quoting Godwin, 150 F.3d at 1221); see also DominguezCurry, 424 F.3d at 1038 (where plaintiff offers direct evidence of
discrimination,
the
requirement
of
"specific and
substantial"
evidence of pretext does not apply).
As discussed above, plaintiff presents direct evidence of a
discriminatory animus by virtue of Waisanen's statements referring
to him as a "big intimidating black man."
Pl.'s Decl., II 8, 31.
Plaintiff also alleges that Waisanen laughed in his presence when
another U.S. Bank employee pointed to a picture of plaintiff and
commented about "always trying to keep the black man down."
Decl., I 12.
termination a
PI.' s
Further, plaintiff alleges that shortly before his
co-worker
called him "buckwheat"
presence and she took no corrective action.
in Waisanen's
Pl.'s Decl., , 13.
U.S. Bank maintains that plaintiff's direct evidence is not as
overwhelming as in other cases where courts have denied summary
judgment.
However, in the Ninth Circuit "a single discriminatory
comment by a plaintiff's supervisor or decisionmaker is sufficient
11 - OPINION AND ORDER
to preclude summary judgment for the employer."
Dominguez-Curry,
424 F.3d at 1039; see also Godwin, 150 F.3d at 1221 (comment that
decision-maker "did not want to deal with another female" was
direct evidence of discrimination);
Cordova,
124 F. 3d at 1149
(calling an employee a "dumb Mexican" was direct evidence of
discrimination); Chuang v. Univ. of Cal. Davis, Bd. of Trustees,
225
F.3d ll15,
ll28
(9th Cir.
2000)
(statement by member of
decisionmaking body that "two Chinks" were "more than enough" was
sufficient evidence of discriminatory motive);
Lindahl v.
Air
France, 930 F.2d 1434, 1439 (9th Cir. 1991) (evidence that employer
believed female candidates were "nervous" and "easily upset" was
direct evidence of gender stereotyping).
Finally, U.S. Bank contends that the court should recognize
the inference against discrimination that applies where the same
person both hired and fired the plaintiff.
Bradley v. Harcourt,
Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996); Coghlan, 413 F.3d
at 1096.
Plaintiff does not dispute that Waisanen hired him while
employed at another financial institution,
recruited and hired
plaintiff at U.S. Bank, and hired him as an assistant manager after
he
stepped down
as
Branch Manager.
However,
construing all
inferences in favor of plaintiff, I cannot find that the same-actor
inference overcomes the direct
evidence that plaintiff's
played a role in his termination.
("Coghlan
does
not
12 - OPINION AND ORDER
offer
any
race
See Coghlan, 413 F.3d at 1096
evidence
of
[defendant's]
discriminatory intent").
Accordingly,
I
find that Waisanen's
statements constitute sufficient evidence to raise a triable issue
as
to
whether
U.S.
Bank's
proffered
reason
for
plaintiff's
termination was true or whether it masked a discriminatory motive.
In sum, while not overwhelming, plaintiff's direct evidence of
racial animus is sufficient to raise a genuine issue of material
fact.
Thus,
summary judgment is denied as to plaintiff's race
discrimination claims based on his termination.
B.
Hostile Work Environment
Plaintiff also alleges that the conduct of Waisanen and others
created a
hostile
work environment.
To prevail
on
a
hostile
workplace discrimination claim, plaintiff must show that: 1) he was
subjected to verbal or physical conduct of a racial nature; 2) the
conduct was unwelcome; and 3) the conduct "was sufficiently severe
or pervasive to alter the conditions of the plaintiff's employment
and create an abusive work environment." Vasquez, 349 F.3d at 642.
Further,
"[t 1he working environment must both subj ecti vely and
objectively be perceived as abusive."
229 F.3d 917, 923 (9th Cir. 2000)
Brooks v. City of San Mateo,
(internal quotation marks and
citation omitted) .
I agree with U.S. Bank that plaintiff fails to show that he
possessed
abusive.
a
subjective
belief
that
his
work
environment
was
During his deposition, plaintiff testified that he "did
not feel like [U.S. Bank] was a hostile environment [in which] to
13 - OPINION AND ORDER
work."
Pl.'s Depo., p. 236.
Further, plaintiff testified that he
"loved [his] job" and "felt comfortable working [at U.S. Bank]."
Id. p. 237.
More specifically, plaintiff testified that "no one
[at U.S. Bank] joked about [anyone] else's race or said anything
like that that can be construed as a racial comment or something
like that."
rd. p. 238.
Thus, there is no evidence before the
court that plaintiff perceived his workplace to be hostile, and
summary judgment is granted on this claim.
C. Intentional and Reckless Infliction of Emotional Distress
U. S.
Bank next moves for summary judgment on plaintiff's
intentional infliction of emotion distress
(IIED)
infliction of emotional distress (RIED) claims.
and reckless
U.S. Bank argues
that plaintiff's lIED claim fails because plaintiff cannot show
that U.S. Bank's conduct was outrageous.
I agree.
To succeed on his lIED claim, plaintiff must prove:
(1) that defendants intended to cause plaintiff severe
emotional distress or knew with substantial certainty
that their conduct would cause such distress; (2) that
defendants engaged in outrageous conduct-i.e., conduct
extraordinarily beyond the bounds of socially tolerable
behavior; and (3) that defendants' conduct in fact caused
plaintiff severe emotional distress.
Checkley v. Boyd, 198 Or. App. llO, 124, 107 P.3d 65 (2005) (quoting
McGanty v. Staudenraus, 321 Or. 532, 543, 901 P.2d 841 (1995)).
Plaintiff argues that Waisanen's discriminatory comments
establish her intent, for which U.S. Bank is vicariously liable, to
cause plaintiff emotional distress.
14 - OPINION AND ORDER
However, I find that none of
the comments qualify as an extraordinary transgression of socially
acceptable conduct.
It is well established in Oregon that the tort
of IIED "does not provide recovery for the kind of temporary
annoyance or injured feelings that can result from friction and
rudeness among people in day-to-day life."
136 Or. App. 305, 308, 901 P.2d 986 (1995).
Hetfeld v. Bostwick,
Rather," [tJhe conduct
is an extraordinary transgression if it is so offensive as to be
outrageous or outrageous in the extreme."
marks and citations omitted).
that
plaintiff
was
a
Id. (internal quotation
While Waisanen's alleged comments
"big
intimidating
black
man"
were
inappropriate and arguably insulting, they are not outrageous in
the extreme within the meaning of lIED.
Jr.,
M.D.,
P.C.,
112 Or.
App.
234,
Watte v. Edgar Maeyens,
239,
828
P.2d 479
(1992)
(insults or "conduct that is merely rude, boorish,
tyrannical,
churlish and mean" do not satisfy lIED standards).
Thus, U.S.
Bank's motion is granted as to plaintiff's lIED claim.
With respect to plaintiff's RIED claim,
appropriate
in
three
physical injury";
circumstances:
(1)
it has been found
"when
accompanied by
(2) "when a defendant's conduct infringes on a
legally protected interest"; (3) "where there is a duty to protect
against psychological harm."
Dawson v. Entek Int'l, 622 F. Supp.
2d 1277, 1292 (D. Or. 2009), rev'd on other grounds, 630 F.3d 928
(9th Cir. 2011)
(citations omitted); see also Drake v. Mutual of
Enumclaw Ins. Co., 167 Or. App. 475, 487 n.3, 1 P.3d 1065 (2000).
15 - OPINION AND ORDER
Plaintiff makes no argument and provides no evidence to show that
any of the above circumstances apply in this case.
Therefore,
summary judgment is granted on this claim.
CONCLUSION
U.S. Bank's motion for summary judgement (doc. 21) is DENIED
as
to
plaintiff's
race
discrimination
claims
based
on
his
termination and GRANTED as to plaintiff's hostile work environment,
lIED, and RIED claims.
Defendant's Motion to Strike (doc. 43) is
DENIED.
IT IS SO ORDERED.
Dated this
Ann Aiken
United States District Judge
16 - OPINION AND ORDER
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