Devi v. Oregon Department of Corrections
Filing
40
OPINION and ORDER: Granting in Part Denying in Part Motion for Summary Judgment 19 . GRANTED as to Plaintiff's retaliation claim and DENIED as to plaintiff's discrimination claim. Plaintiff's request for oral argument is DENIED as unnecessary. The Court encourages the parties to pursue judicial settlement of plaintiff's remaining claim. Signed on 7/9/2013 by Chief Judge Ann L. Aiken. (lg) Modified on 7/10/2013 (lg).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BARISH C. DEVI,
Plaintiff,
v.
OREGON DEPARTMENT OF
CORRECTIONS,
Defendant.
Loren W. Collins
Stebbins & Coffey
745 California Street
P.O. Box 1006
North Bend, Oregon 97459
Attorney for plaintiff
Ellen F. Rosenblum
Steven M. Lippold
Oregon Department of Justice
1162 Court Street N.E.
Salem, Oregon 97301
Attorneys for defendant
Page 1 - OPINION AND ORDER
Case No.
6:12-cv-00841-AA
OPINION AND ORDER
AIKEN, Chief Judge:
Defendant
the
Oregon
Department
of
Corrections
moves
for
summary judgment on plaintiff Harish Devi's claims pursuant to Fed.
R. Civ. P. 56.
For the reasons set forth below, defendant's motion
is granted in part and denied in part.
BACKGROUND
In 1995,
plaintiff,
who was born in Fiji and is of Hindu
religion and descent, began working as a correctional officer at
defendant's Shutter Creek Correctional Institution
("SCCI").
In
2003, Tim Causey was appointed superintendent of SCCI; since that
time, no minority candidate has been promoted to the position of
sergeant, although at least one minority sergeant was transferred
thereto during Causey's tenure.
In 2007, plaintiff applied for a
vacant sergeant position but eventually withdrew his name because
of concerns regarding shift changes associated with that promotion.
On October 13, 2009, Causey sent an email to all staff members
regarding upcoming changes to an alternative incarceration program,
in which he stated "[u]nderstand that there are no sacred cows.
Everything
is
open
for
review."
Collins
Decl.
Ex.
1.
The
following day, on October 14, 2009, plaintiff informed Causey that
"the term 'sacred cow' could be found to be offensive to someone of
Hindu
decent
like
myself
disrespect of using the term
I
am
sure
'sacred cow'
loosely it can be taken that way."
that
you meant
no
but when it is used
On October 15,
2007,
Causey responded to plaintiff via email: "I apologize that what I
said was offensive to you and your faith, that certainly was not my
Page 2 - OPINION AND ORDER
intent.
I
will
future."
be
more
careful
in
selecting phrases
in
the
Id.
In 2011, plaintiff applied for one of three sergeant openings
at SCCI.
Thirty-two candidates were referred for the position from
defendant's recruitment unit, all of whom were offered first-round
interviews.
Excluding
Caucasian males,
plaintiff,
twenty-four
four were Caucasian females,
American males, and one was a Hispanic male.
well during his first
process
along
with
candidates
were
two were AfricanPlaintiff performed
interview and was advanced in the hiring
ten
other
candidates,
all
of
whom
were
Thereafter, the remaining candidates prepared for the
Caucasian.
second round of interviews by reviewing defendant's policies and
procedures.
Corrections Officer and candidate Clark Anderson also
solicited and received advice regarding how best to prepare from
several employees, including Lieutenant Tracy Williams.
On July 7,
2011,
plaintiff participated in the second and
Institutional Security Manager Corey
final round of interviews.
Fhuere, Transitions Manager Sonny Rider, Executive Assistant Julie
Martin,
and
Williams
(collectively
"panelists")
for
candidates.
They were neither provided with background materials
the
selecting
candidates
who
to
nor
were
promote.
evaluating,
they
However,
and
were
responsible
about
interviewing,
the
ranking
given
criteria
to
each
panelist
had
the
use
in
prior
experience working with and/or supervising sergeants and therefore
were
familiar
with
the
candidate for promotion.
Page 3 - OPINION AND ORDER
characteristics
that
defined
a
good
Upon his arrival at the interview, plaintiff was provided with
eight interview questions and was instructed to read through and
answer them when he was
ready.
While plaintiff was
providing
answers, the panelists made various notes on the interview form.
These notes reflected both plaintiff's strengths and weaknesses.
For instance, Rider was very impressed by plaintiff's familiarity
with
the
policy
for
emergency planning.
Conversely,
Rider
and
Martin each made a notation about plaintiff's lack of people skills
and failure to engage with the panelists by regurgitating memorized
material.
At the end of the second round of interviews, the panelists
completed ten 1 "Interview After Action Reports," based on their
interview
notes,
and
ranked
the
candidates
accordingly.
Plaintiff's "Interview After Action Report" contained the following
comments:
"[p]rofessional
knowledge
of
rules,
dress,"
policies,
"[t]oo
intent
procedures
on
selling
felt
like
regurgitation," "no personality skills showing through," "[d]idn't
give interviewers a chance to speak," "like an information dump,"
"very good information and understanding of rules,
over answered
questions," and "focus on personal sacrifices of shift change."
Collins Decl. Ex. 26.
Plaintiff was ranked fifth, seventh, eighth,
and tenth by Rider, Williams, Fhuere, and Martin, respectively.
In addition to the oral interview component, the candidates
underwent a brief written exercise that was developed by Fhuere and
1
The eleventh candidate elected not to complete the
competitive hiring process.
Page 4 - OPINION AND ORDER
Martin.
This
particular
exercise
factual
asked
scenario;
the
candidates
it
was
to
designed
respond
to
to
test
a
the
candidates' writing and grammar skills, as well as their ability to
use a computer and follow instructions.
Through a collaborative
editing process, the initial fact pattern was altered to mirror an
actual incident for which Corrections Officer and candidate Kyle
Robbins
received a
lifesaving
award.
Plaintiff
completed
the
exercise without assistance and within the requisite time-frame.
Fhuere ultimately decided not to use the written exercise during
the selection process.
After completion of the interviews and written exercises, the
panelists met Causey to discuss the second-round candidates.
The
panelists recommended that Causey choose from among the top four
candidates
to
fill
the
three
sergeant
vacancies.
Anderson,
Robbins, and Corrections Officer Charles Zousel were consistently
and collectively the most highly ranked candidates; they received
the top three rankings from Rider, Williams, and Fhuere, and were
all
ranked
within
the
top
four
by
Martin.
Causey
selected
Anderson, Robbins, and Zousel for promotions.
On October 3, 2011, plaintiff filed a charge with the federal
Equal Employment Opportunity Commission premised on his failure to
be promoted.
issued
On February 17, 2012, the U.S. Department of Justice
plaintiff
a
"Right
to
Sue"
letter.
On May
11,
2012,
plaintiff filed a complaint in this Court, alleging discrimination
and retaliation claims under Title VII;
plaintiff subsequently
amended his complaint but did not materially alter the nature of
Page 5 - OPINION AND ORDER
his claims.
On January 16,
2013,
defendant filed a motion for
summary judgment.
STANDARD
Summary judgment is appropriate if the pleadings, depositions,
affidavits, answers to interrogatories, and admissions on file, if
any, show
~that
there is no genuine dispute as to any material fact
and the [moving party] is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a).
materiality of a
Substantive law on an issue determines the
fact.
T. W.
Elec.
Servs.,
Inc.
v.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
Pac.
Elec.
Whether the
evidence is such that a reasonable jury could return a verdict for
the
nonmoving party determines
the
authenticity of
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
a
dispute.
(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.
Id. at 324.
Special rules of construction apply when evaluating a summary
judgment motion:
(1) all reasonable doubts as to the existence of
genuine issues of material fact are 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.
Page 6 - OPINION AND ORDER
DISCUSSION
This dispute centers on whether defendant's failure to promote
plaintiff
to
the
position
of
sergeant
constituted
unlawful
discrimination and retaliation under Title VII.
Where, as here,
there
or
is
claims
no
direct
under
evidence
Title
VII
are
of
discrimination
governed
framework described in McDonnell
(1973).
Pursuant
to
this
792,
800
(9th Cir.
2003)
Douglas,
framework,
establish a prima facie case.
by
the
the
411
retaliation,
burden-shifting
U.S.
792,
plaintiff must
(Title VII retaliation claim)
Electra Cent. Credit Union,
1028
(Title VII discrimination claim)
omitted).
2006)
first
Manatt v. Bank of Am., NA, 339 F.3d
omitted); Cornwell v.
(9th Cir.
802-04
(citation
439 F.3d 1018,
(citation
If the plaintiff proves a prima facie case, the burden
of production shifts to the defendant to articulate a legitimate,
non-discriminatory
reason
Manatt, 339 F. 3d at 800
1028
that
the
the
adverse
employment
action.
(citation omitted); Cornwell, 439 F. 3d at
(citation omitted).
reason,
for
If the defendant "articulates such a
[the plaintiff] bears the ultimate burden of demonstrating
reason was merely a
retaliatory motive.
pretext"
for
a
discriminatory or
Manatt, 339 F.3d at 800 (citation and internal
quotations omitted); Cornwell, 439 F. 3d at 1028 (citation omitted)
I.
Discrimination Claim
Title VII prohibits an employer from discriminating against an
employee on the basis of race, national origin, or religion.
42 U.S.C. § 2000e-2(a).
Page 7 - OPINION AND ORDER
See
A.
A
Prima Facie Case
plaintiff
proves
a
prima
discrimination by showing that:
class;
~(1)
facie
case
of
employment
he is member of a protected
(2) he was qualified for his position; (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."
Peterson v.
Co., 358 F. 3d 599, 603 (9th Cir. 2004)
~that
undisputed
case."
Hewlett-Packard
(citations omitted).
It is
Plaintiff satisfies the elements of a prima facie
Pl.'s Resp. to Mot. Summ. J.
12; Def.'s Mem. in Supp. of
Mot. Summ. J. 10.
B.
Legitimate, Non-Discriminatory Reason
Once the plaintiff evinces a prima facie discrimination claim,
the
defendant
must
set
forth
evidence
demonstrating
that
the
rationale behind its challenged actions was not discriminatory.
Here, defendant submitted evidence establishing that race, national
origin,
and
candidates'
religion
were
not
suitability for promotion.
( ~ [ i] n ranking the candidates,
candidates'
I
Decl.
assessing
See Williams
Decl.
did not take into account
-~
Ex.
A,
3 (same); Martin Decl.
at
10
(plaintiff
questions posed by the panel where not
advantage
in
race, national origin or religion"); Rider Decl.
(same); Fhuere Decl.
Collins
considered
Caucasian
candidates").
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