Bennefield v. Mid-Valley Healthcare, Inc. et al

Filing 144

ORDER: Defendants' Motion for Partial Summary Judgment 114 is Granted in part. Summary judgment is granted as to plaintiff's claims of religious discrimination and retaliation based on complaints of religious discrimination. Signed on 8/21/2014 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
STEPHANIE BENNEFIELD,

Plaintiff,

Case No. 6:13-cv-00252-MC
OPINION AND ORDER

V.

MID-VALLEY HEALTH CARE, INC.
AND MID-VALLEY HEALTHCARE,
INC. DBA SAMARITAN LEBANON
COMMUNITY HOSPITAL,
Defendants.

_MCSHANE, Judge:
Plaintiff Stephanie Bennefield brings 10 state and federal claims alleging discrimination
and retaliation for complaints of discrimination based on sexual orientation and religion.
Bennefield brings a related whistleblowing claim under ORS 659 A.199(1 ). Bennefield agrees to
voluntarily dismiss her federal sexual orientation discrimination claim, the wrongful termination
claim, and the claim for punitive damages. As discussed at oral argument, defendant's motion for
summary judgment on the religious discrimination and retaliation based on complaints -9f
1 -OPINION AND ORDER

religious discrimination claims is GRANTED. Defendants' motion for summary judgment on the
remaining claims is DENIED.

BACKGROUND 1
Bennefield began working at the Hospital on May 2, 2011 on a 6-month probationary
period. Bennefield told many co-workers, including her supervisors, that she was a lesbian.
Bennefield alleges Linda Pitts, a co-worker, created a hostile work environment after Pitts found
out Bennefield was a lesbian. Pitts found out Bennefield was a lesbian in early August 2011.
Prior to that time, Pitts treated Bennefield respectfully.
Most of the disagreements qetween Pitts and Bennefield occurred in the operating room,
when Bennefield would ask for a "count" of gauze and tools. Pitts would tell Bennefield to "pull
your god damn head out of your ass," and say no count was needed at that time. Pitts called
Bennefield a "disgusting lesbian" and a "stupid lesbian" and generally created a hostile work
environment. Sometimes, Bennefield would simply walk out of the operating room after Pitts
yelled at her. At times, Pitts would purposefully arrive late to the operating room, knowing this
would cause Bennefield to be unfairly disciplined.
BelliJ.efield alleges she complained to the supervisors on numerous occasions. As the .
supervisors all state Bennefield never complained of discrimination (until after the decision had
been made to fire Bennefield), his is a classic he-said, she-said situation. Bennefield's
declarations are not all that clear on when or who she complained to, or what exactly she said.
But she does state she complained to the supervisors, stated Pitt~ began acting differently after
. finding out she was a lesbian, and that the supervisors basically told Bennefield to work it out
with Pitts. Bennefield worked under two preceptors, who shadowed and trained Bennefield .
. Bennefield states she told both preceptors of the discrimination, but the preceptors failed to act.
1

1view the facts in the light most favorable to Bennefield, the non-moving party.

2- OPINION AND ORDER

Bennefield also states she told Charleney Hayden, the nurse manager of the discrimination.
Hayden allegedly also -failed to address the hostile work environment.
On October 27, at the end of the probationary period, Hayden and a precept met with
Bennefield and informed her she was deficient in every category. They extended the probation
period another 30 days. Belli1efield states this meeting came as a surprise, as her precepts and
supervisor had previously said Bennefield was proceeding at an acceptable level.
During a November 16 operation, Bennefield again asked Pitts for a count. Pitts refused
and yelled at Bennefield. When the precept then asked for a count, Pitts obliged. Humiliated,
Bennefield walked out of the operating room. The precept went to Hayden, who made the
decision to terminate Bennefield's employment. Hayden asked Human Resources to prepare
Bennefield's check in advance of a November 18 meeting where Hayden would fire Bennefield.
On November 17, Bennefield had another blow up with Pitts during a C-section,
Bennefield went to Human Resources and filed a complaint alleging discrimination based on
religion and sexual orientation. Defendants say this report was the first time they any supervisor
or manager heard any allegations of discrimination against Bennefield. As noted, Bennefield
states she made informal complaints to. the supervisors for months.
Bennefield was placed on paid leave while Human Resources investigated the complaint.
Pitts, who was on vacation, was not placed on leave. Bennefield states the investigation was a
sham, and defendants never even asked Pitts about the complaints. Pitts was later disciplined for
generally being rude, although defendants concluded Pitts had not engaged in any form of
discrimination against Bennefield. Bennefield was fired on November 30.
/

3- OPINION AND ORDER

STANDARD OF REVIEW

The court must grant summary judgment if there is no genuine issue of material fact and
if the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue is
"genuine" if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v.
Phillip lvforris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242,248 (1986)). A fact is"material" ifit could affect the outcome ofthe case.Id. The
court reviews evidence and draws inferences in the light most favorable to the non-moving party.
Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v.
Cromartie, 526 U.S. 541, 552 (1999))

DISCUSSION
Retaliation for Complaining of Sexual Orientation Harassment

Title VII prohibits an employer to retaliate against an employee "because he has opposed
any practice made an unlawful practice by this subchapter .... " 42 U.S.C. § 2000e-3(a).
Although Title VII does not prohibit harassment based on one's sexual orientation, Bennefield
argues her retaliation claim is viable because she had an objectively-,.reasonable beliefthat the
sexual orientation harassment was unlawful when she complained to her supervisors.
To establish a retaliation claim, Bennefield must establish: 1) she engaged in a protected
activity; 2) she suffered a materially adverse action; and 3) a causal relationship between the two.
Westendorfv. W Coast Contractors ofNev., Inc., 712 F.3d 417, 421 (9th Cir. 2013). An

employee engages in a protected activity when the employee reports an employment practice that
violates Title VII or a practice the employee reasonably believes violates Title VII. A materially
.

.

adverse action is any action which would deter a reasonable employee from reporting a charge of
discrimination. Emeldi v. Univ. of Oregon, 698 F.3d 715, 726 (9th Cir. 2012).

4- OPINION AND ORDER

If the employee establishes a prima facie claim of retaliation, the burden shifts to the
employer to demonstrate it had legitimate, non-discriminatory reasons for the adverse
employment action. Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2003). If
the employer meets that burden, the burden then shifts back to the employee to demonstrate the
employer's proffered reason was merely pretextual. Jd.
Defendants point to Fox v. Shinseki, 2013 WL 4034086 (N:D. Cal.), which concerned a
somewhat similar fact pattern. In Fox, the plaintiff complained of comments that a co-worker,
being from the south, must be a redneck or racist. The court noted Title. VII prohibits national
origin discrimination, not regional origin discrimination, and that "Southern-ness is not a
protected trait." !d. at *7 (quoting Williams v. Frank, 757 F. Supp. 112, 120 (D. Mass. 1991).
The plaintiff also complained of potential homophobic comments, but the court noted Title VII
does not prohibit discrimination on the basis of sexual orientation alone. Therefore, no rational
jury could conclude Fox had a reasonable belief that the co-worker's comments violated Title
VII and Fox had not engaged in a protected activity. ld. The court stated:
Even if Plaintiff thought she was engaging in protected EEO activity, no rational
jury could find that Plaintiffhad a reasonable beliefthat TK's actions violated
Title VII. It does not matter that Williams or Plaintiffs supervisors may have held
the subjective, mistaken belief that sexual orientation is protected. Rather the ·
issue of"reasonableness" depends on the objective standard of whether the
conduct at issue targeted a member of a class covered by Title VII based on that
statute. A plaintiff might be able to maintain a retaliation claim where she
opposed conduct that she reasonably believed was based on membership in a class
.
actually protected by Title VII, such as harassment based on gender, but was
mistaken because the conduct was not sufficiently pervasive. A plaintiff cannot
pursue a claim of retaliation, however, where the conduct opposed cannot violated
Title VII because it does not involve a class within the protection of the statute.
Accordingly, Plaintiff has not raised a triable issue that she engaged in a protected
activity.
~

Id.

5 ~ OPINION AND ORDER

Defendants, and the court in Fox, appear to conclude that mistakes of law cannot support
a Title VII retaliation claim. I think that argument goes too far. An employee may bring a
retaliation claim even if the employee makes a mistake of law in thinking the employer engaged
in prohibited conduct. 1Vfoyo v. Gomez, 40 F .3d 982, 985 (9th Cir. 1994). Whether the error is
one of fact or law is irrelevant, as long as the mistake is made in good faith. !d. (citing Jurado v.
Eleven-Fifty Corp., 813 F.2d 1406, 1411 (9th Cir. 1987). Title VII is construed broadly, arid .

"[t]his directive applies to the reasonableness of a plaintiffs beliefthat a violation occurred, as
well as to other matters." ld. at 985. Although the reasonableness prong is an objective standard,
courts must take into account "the limited knowledge possessed by most Title VII plaintiffs
about the factual 'and legal bases of their claims." ld.
· In Jurado, the plaintiff, who worked as a disc jockey, opposed his employer's directive
that he broadcast only in English. The court noted that although an English only directive would
not in fact violate Title VII, a plaintiffs reasonable belief that the order violated Title VII was a
protected activity. Jurado, 813 F.2d at 1411. Additionally, the Ninth Circuit has held that a
plaintiff established a prima facie sexual orientation retaliation claim under Title VII and Oregon
law because by going to Human Resources and filing a complaint of sexual orientation
discrimination, the plaintiff had in fact engaged in a protected activity. See Dawson v. Entek
Intern. 630 F.3d 928, 936-37 (9th Cir. 2011). Admittedly, the discussion was brief on this issue,

and Bennefield did not go to Human Resources until after Hayden made the decision to
terminate her employment. However, Bennefield states she reported the discrimination for
months to Hayden, her supervisor. Viewing the evidence in the light most favorable to
r

Bennefield, I conclude Bennefield's months of complaints about Pitts's discrimination based on
Bennefield's sexual orientation was a protected activity under Title VII. That discrimination

6- OPINION AND ORDER

based on one's sexual orientation turned" out to not be prohibited under Title VII does not make
Bennefield's belief objectively unreasonable. In making this conclusion, I take into account "the
limited knowledge possessed by most Title VII plaintiffs about the factual and legal bases of
their claims." Mayo, 40 F.3d"at 985.
Defendants argue Bennefield cannot demonstrate causationhere. I disagree. As noted,
Bennefield states she complained for months to her supervisors, who failed to act. A jury could
find, for example, that Hayden simply did not want to deal with an employee like Bennefield
who made complaints. Hayden ultimately made the decision to terminate Bennefield. A jury
could also conclude defendants' negligence in allowing the hostile work environment to continue
was the reason Bennefield's performance suffered. Additionally, Bennefield disputes the notion·
that she was not a model employee, essentially arguing her supervisors made up bogus violations
and deficiencies on her part. For example, in early October, Bennefield was on-call during the·
weekend. Bennefield never received any calls due to a defective pager provided by defendants.
Hayden nonetheless wrote Bennefield up for not checking in during the weekend. Viewed in the·
light most favorable to Bennefield, she has met her burden of demonstrating defendants'
proffered reasons for firing her were pretextual.

Religious Discrimination
Bennefield brings state and federal claims of religious discrimination. The extent of
Bennefield's evidence supporting this claim stems from a couple of comments allegedly made by
Pitts such as "You really need to find god" and "If you would just find god you wouldn't have
.this disgusting problem." Pitts made these comments after overhearing a discussion between
Bennefield and an anesthesiologist where the anesthesiologist told Bennefield his ex-wife was
very religious. Pitts then asked Bennefield what her religion was. Bennefield testified she stated

1- OPINION AND ORDER

"I do not talk about religion or politics at work." Bennefield Depo., 180, 21-22. Additionally
Bennefield testified she never discussed her religion with the anesthesiologist and it was simply
him venting. Bennefield Depo., 181, 1-4 ("I don't know if it was more of a vent, but it did not
include me giving my preferences or my opinions or ideas."). In other words, Bennefield argues
that despite merely telling Pitts she would not discuss religion at all, Pitts must have assumed
Bennefield did not practice a religion. This scant evidence does not support a claim of religious
discrimination.
Bennefield points to no case holding a defendant discriminated based on religion despite
not knowing plaintiffs religion, or even knowing if plaintiff holds any religious beliefs at all. In

Prowel v. Wise Business Forms, Inc., 579 F.3d 285, 292-93 (3rd Cir. 2009), the Third Circuit
concluded the plaintiff could not demonstrate his employer intentionally harassed him because of
his religion. Prowel testified he suffered religious harassment because "I am a gay male, which
status several of my co-workers considered to be contrary to being a good Christian." Id. at 293.
The court rejected this theory as Prowel' s religious discrimination claim was in fact a repackaged
gender stereotyping claim? Id. ("By contrast, Prowel's religious harassment claim is based
entirely upon his status as a gay man. Because Prowel's claim was a repackaged claim for sexual
orientation discrimination-which is not cognizable under Title VII-we hold that the District
Court did not err in granting Wise summary judgment on that claim.").

A "gender stereotyping" is availabl~ under Title VII. Prowel specifically brought that claim, which is based on
failing to conform to traditional gender stereotypes. It is different that a sexual orientation claim, which is what
Bennefield brings. Prowel did not focus on his sexual orientation, instead alleging he did things different than other
male employees. See Prowel, 579 F.3d at 291-92 {Prowel testified he: "did not curse and was very well-groomed; _
filed his nails instead of ripping them off with a utility knife; crossed his legs and had a tendency to shake his foot
'the way a woman would sit.';" discussed art and interior design; pushed the buttons on his machine with
"pizzazz"; etc ... ). Bennefield does not make similar allegations, testified Pitts had a problem with her sexual
orientation, and reported to her supervisors that Pitts was creating a hostile work environment not because
Bennefield failed to conform to traditional female roles, but because she was a lesbian.
2

8- OPINION AND ORDER

This is a case centered around alleged discrimination based on Bennefield's sexual
'

orientation. Her claim of religious discrimination, based on a single comment where she simply
refused to discuss religion at work, is merely a repackaged claim for sexual orientation
discrimination.

Retaliation for Complaining of Religious Discrimination
As explained in the sexual orientation retaliation section above, Bennefield must
establish: 1) she engaged in a protected activity; 2) she suffered a materially adverse action; and
3) a causal relationship between the two. Westendorf, 712 F.3d at 421. An employee engages in a
protected activity when the employee reports an employment practice that violates Title VII or
that the employee reasonably believes violates Title VII. A materially adverse action is any
action which would deter a reasonable employee from reporting a charge of discrimination.

Emeldi, 698 F.3d at 726.
Based on Bennefield's own testimony, she clearly lacked a good faith belief that Pitts
was discriminating against her based on religion. Bennefield testified that when she spoke to
Hayden in November about the religious comments, she said "When I did talk to her, I - - I had
told her about the religious comment and how I really do feel all this has to do ·with the sexual
orientation because she has referenced me as disgusting lesbian, called me stupid, stupid lesbian,
idiot, what I do is disgusting." Bennefield Depo., 183, 2-6. Bennefield's own testimony
demonstrates even she believed this all boiled down to sexual orientation discrimination, and not
discrimination based on her religious beliefs.

Whistleblowing Claim
ORS 659A.199(1) states, "It is an unlawful employment practice for an employer to
discharge, demote, suspend or in any manner discriminate or retaliate against an employee : ..

9- OPINION AND ORDER

for the reason that the employee has in good faith reported information that the employee
believes is evidence of a violation of a state or federal law, rule or regulation." The Hospital
argues this claim is duplicative of the retaliation claims and must be dismissed.- Although
Bennefield is not entitled to double recovery, the statute specifically- states the whistleblowing
statue remedies "are in addition to any common law remedy or other remedy that may be
available to an employee for the conduct constituting a violation of this section." ORS
659Al99(2).
The analysis for the whistleblowing statute mirrors the analysis for the retaliation based
on complaints of sexual orientation discrimination claims. Neighorn v. Quest Health Care, 870
F.Supp.2d 1069, 1102 (D. Or. 2012); DeSpain v. Evergreen Intern. Aviation, Inc., 2013 WL
594898 *3-4 (D. Or. 2013). As the sexual orientation retaliation claims survive summary
judgment, so does the whistle blowing claim. 3
CONCLUSION
Defendants' motion for partial summary judgment (ECF No. 114) is GRANTED in part.
Summary judgment is granted as to plaintiffs claims of religious discrimination and retaliation
based on complaints of religious discrimination.
IT IS SO ORDERED.
DATEDthis

1-l

dayofAugust,2014.

. Michael McShane
United States District Judge

3

At oral argument, Bennefield agreed to dismiss any whistleblowing claim gased on reports defendants were
violating nursing regulations or that she was in danger of losing her licensE.

10- OPINION AND ORDER