Opinion
3:18-CV-00850-YY
08-10-2022
DR. RUPA BALA, Plaintiff, v. OREGON HEALTH AND SCIENCE UNIVERSITY, an Oregon public corporation; DR CHARLES HENRIKSON, an individual; DR. JOAQUIN CIGARROA, and individual, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Plaintiff Dr. Rupa Bala has brought this employment discrimination action against defendants Oregon Health Sciences University (“OHSU”) and individual defendants, Dr. Charles Henrikson and Dr. Joaquin Cigarroa. Plaintiff alleges the following claims:
• Claim 1: violation of Fourteenth Amendment Equal Protection under 42 U.S.C. § 1983 against all defendants;
• Claim 2: racial discrimination under 42 U.S.C § 1981 against all defendants;
• Claim 3: whistleblower retaliation under O.R.S. 441.044 against OHSU;
• Claim 4: whistleblower retaliation under O.R.S. 659A.199 against OHSU;
• Claim 5: employment discrimination and retaliation under O.R.S. 659.030 against OHSU;
• Claim 6: discrimination and retaliation under Title IX of the Education Amendments Act of 1972, 42 U.S.C. § 1681, against OHSU;
• Claim 7: employment discrimination and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, against OHSU; and
• Claim 8: common-law wrongful discharge against OHSU.Sec. Am. Compl. ¶¶ 45-70, ECF 11.
Plaintiff alleges a claim under O.R.S. 441.057, which has since been renumbered to O.R.S. 441.044.
The parties have filed cross motions for summary judgment (ECF 118, 130). For the reasons discussed below:
• Plaintiff's section 1981 and section 1983 claims against OHSU should be dismissed because OHSU is an arm of the state and is therefore entitled to Eleventh Amendment immunity as to those claims.
• Defendants' motion for summary judgment against plaintiff's discrimination or disparate impact claims under section 1983, Title VII, Title IX, and O.R.S. 659A.030 should be denied because plaintiff has produced evidence sufficient to raise a genuine issue of material fact regarding whether defendants unlawfully took adverse action against plaintiff because of her gender or because she failed to conform to gender stereotypes.
• Defendants' motion for summary judgment as to plaintiff's section 1981 claims, and all other discrimination or disparate impact claims under section 1983, Title VII, Title IX, and O.R.S. 659A.030 based on her race or the combination of her race and gender should
be granted because there is insufficient evidence that any of defendants' actions against plaintiff were based on her race.
• Defendants' motion for summary judgment against plaintiff's retaliation claims under federal and state law should be granted because there is insufficient evidence to raise a question of fact regarding whether defendants' stated reason for taking action against plaintiff was pretextual, and because defendants' alleged retaliatory actions did not actually deter plaintiff from engaging in protected activity.
• Finally, defendants' motion for summary judgment against plaintiff's common law wrongful discharge claim should be granted because that claim is preempted by the adequate remedies available under the various state laws under which plaintiff has brought her discrimination and retaliation claims.
Although plaintiff's response (ECF 130) is captioned as a “Cross-Motion for Summary Judgment,” the entirety of plaintiff's “cross-motion” seems to be directed at rebutting defendant's motion for summary judgment. In any event, as explained below, the evidence regarding plaintiff's discrimination claims is disputed and plaintiff's arguments have not established that defendants discriminated against her as a matter of law. Plaintiff's cross-motion for summary judgment (ECF 130) should therefore be denied.
The parties have made several other ancillary motions:
• Using numerous footnotes and other references, defendants have moved to strike some of the evidence offered by plaintiff in response to defendants' motion for summary judgment. E.g., Reply 14 n.11, 17 n.16. These Findings and Recommendations directly address those “motions” when necessary, but as a general matter, defendants' motions to strike lack merit or are otherwise unavailing.
• Plaintiff's motion to supplement the record on summary judgment (ECF 139) is granted, although as explained below, the report offered as a supplement does not materially change the analysis on plaintiff's disparate treatment or retaliation claims.
• Accordingly, defendants' motion for leave to file a sur-reply (ECF 146) in opposition to plaintiff's motion to supplement the record is denied because further briefing is unnecessary in light of the decision on plaintiff's motion to supplement the record.
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant 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.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.' ” Id. at 324 (citing Fed.R.Civ.P. 56(e)).
The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
The Ninth Circuit has cautioned against “too readily” granting summary judgment in employee discrimination cases because of “the importance of zealously guarding an employee's right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses.” McGinestv. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004); see also Chuang v. Univ. of CaliforniaDavis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) (“As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment. This is because ‘the ultimate question is one that can only be resolved through a searching inquiry-one that is most appropriately conducted by a factfinder, upon a full record.'”) (quoting Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)).
II. Eleventh Amendment Immunity-§§ 1981 and 1983 Claims
OHSU claims it is not a proper defendant for plaintiff's section 1981 and section 1983 claims because it is an arm of the state and is therefore entitled to Eleventh Amendment immunity. Mot. Summ. J. 11-13, ECF 118. This issue has been litigated twice before in this case: first, in a discovery dispute resulting in an order issued on June 3, 2020 (ECF 35), and second, in another discovery dispute resolved by an order issued on August 17, 2020 (ECF 38), which was affirmed on November 13, 2020 (ECF 55). As previously observed, “[e]very court that has addressed the issue and conducted an arm-of-the-state analysis has concluded OHSU is an arm of the State of Oregon entitled to Eleventh Amendment immunity.” United States ex rel.Doughty v. Oregon Health & Scis. Univ., No. 3:13-CV-01306-BR, 2017 WL 1364208, at *3 (D. Or. Apr. 11, 2017) (citing Kessler v. Oregon Health & Sci. Univ., No. 1:13-CV-01022-CL, 2013 WL 5819030, at *2 (D. Or. Oct. 29 2013) (“The Court . . . finds that OHSU is an instrumentality of the state for purposes of sovereign immunity....Thus, OHSU is protected from this suit [by] the Eleventh Amendment.”); Daniel v. Am. Bd. of Emergency Med., 988 F.Supp. 127, 165 (W.D.N.Y. 1997) (“The court . . . finds [OHSU] is an arm or instrumentality of the state of Oregon, entitled to Eleventh Amendment protection.”)); see also Mitchell v. OHSU et al, No. 3:18-cv-01982-BR, Order (March 21, 2019), ECF 28 (dismissing claims against OHSU because it is an arm of the state and therefore not a person for purposes of 42 U.S.C. § 1983).
In determining whether OHSU is entitled to Eleventh Amendment immunity, the five-part test set forth in Mitchell v. L.A. Cmty. Coll. Dist. applies: whether a money judgment would be satisfied out of state funds, whether the entity performs central governmental functions, whether the entity may sue or be sued, whether the entity has the power to take property in its own name or only the name of the state, and the corporate status of the entity. 861 F.2d 198, 201 (9th Cir. 1988). “To determine these factors, the court looks to the way state law treats the entity.” Id.
The first factor-whether a money judgment would be satisfied out of state funds-is “given additional weight because the impetus of the Eleventh Amendment is the prevention of federal-court judgments that must be paid out of a state's treasury[.]” Beentjes v. Placer Cty. AirPollution Control Dist., 397 F.3d 775, 778 (9th Cir. 2005) (citation omitted); see also Holz v.Nenana City Pub. Sch. Dist., 347 F.3d 1176, 1182 (9th Cir. 2003) (identifying the first factor as “the most important”). The Eleventh Amendment bars a lawsuit against a state agency where the state is legally liable for a judgment against that agency. See Stoner v. Santa Clara Cty. Off. ofEduc., 502 F.3d 1116, 1122 (9th Cir. 2007). This question “does not focus on whether a possible judgment against the entity would impact the state treasury.” Holz, 347 F.3d at 1182 (quotation marks omitted). “[I]t is the entity's potential legal liability, rather than its ability or inability to require a third party to reimburse it, or to discharge the liability in the first instance, that is relevant.” Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 431 (1997). “[T]he relevant inquiry is whether . . . [the state] will be legally required to satisfy any monetary judgment obtained against” the entity in question. Holz, 347 F.3d at 1182 (citation omitted); see also Durning v.Citibank, N.A., 950 F.2d 1419, 1424 n.2 (9th Cir.1991) (“The relevant question is whether the state would have a legal liability to pay the judgment, not whether the defendant entity would have the practical ability to pay it.”).
Additionally, it is a “well-established Eleventh Amendment principle that a governmental entity may be an arm of the state protected by sovereign immunity where the state is functionally liable, even if not legally liable, on money judgments against the state entity.” Stoner, 502 F.3d at 1122 . “The functional-liability analysis looks to whether, as a practical matter, a judgment against a state-created entity puts state funds at risk, despite the fact that the state is not legally liable for the judgment.” U.S. ex rel. Oberg v. Pennsylvania Higher Educ. Assistance Agency, 804 F.3d 646, 658 (4th Cir. 2015). Functional liability exists “[w]here an agency is so structured that, as a practical matter, if the agency is to survive, a judgment must expend itself against state treasuries.” Id. (quoting Hess, 513 U.S. at 50). “A state may also be functionally liable if the funds available to pay any judgment effectively belong to the state rather than the agency.” Id.
Here, the historical background of OHSU is helpful to understanding how the state is functionally liable for OHSU's money judgments. “Oregon Health Sciences University and its University Hospital were created as educational institutions for higher learning by the Oregon legislature.” Daniel, 988 F.Supp. at 162 (citing former O.R.S. 352.055(1)). “The Oregon Health Sciences University consists of a medical school, a dental school, a school of nursing, a hospital, and research centers.” Id. “The university was originally part of the Oregon State System of Higher Education, . . . however, in 1995, the Oregon legislature transformed Oregon Health Sciences University into a ‘public corporation.' ” Id. (citing former O.R.S. 352.002; O.R.S. 353.010). According to O.R.S. 353.010(2), a “public corporation” is defined as
an entity that is created by the state to carry out public missions and services. In order to carry out these public missions and services, a public corporation participates in activities or provides services that are also provided by private enterprise.
“A public corporation is granted increased operating flexibility in order to best ensure its success, while retaining principles of public accountability and fundamental public policy.” Id.Finally, the Oregon legislature has recognized that it is the “public policy” of OHSU in “carrying out its missions as a public corporation” to, among other things, “serve the people of the State of Oregon by providing education in health, science, engineering and their management for students of the state and region,” “[e]ngage in the provision of inpatient and outpatient clinical care and health care delivery systems throughout the state,” and “[s]erve as a local, regional and statewide resource for health care providers.” O.R.S. 353.030(1)(a) & (3)(c), (d).
Considering how the legislature structured OHSU, it is not surprising that OHSU continues to receive funding from the state, which it requests from the legislature as part of the governor's budget. See O.R.S. 353.140(1). Other statutes governing OHSU further illustrate how its operations are intertwined with state funds in various ways. For example, O.R.S. 353.210(4) refers to accessibility projects “funded specifically by the Legislative Assembly.” O.R.S. 353.559 (2)(b) indicates that excess funds of royalties and licenses “shall be deposited in the General Fund.” And O.R.S. 353.270(1)(e) refers to an officer or employee's “publicly funded salary.” Additionally, O.R.S. 353.370 provides that OHSU is required to “promptly” notify the legislature in writing upon the “discovery of any shortfall in moneys available to the university for the payment when due of amounts under any bonds, certificates of participation, financing agreements or other agreements for the borrowing of moneys issued prior to July 1, 1995.” The statute further states that the legislature “may provide funds to satisfy the payment of any such amount,” and that in enacting that statute, the legislature “acknowledge[d] its current intention to provide . . . funds to pay such amount,” although “there is no legal obligation to provide funds under this section.” Id.
Thus, when this court “looks to the way state law treats” OHSU, Mitchell, 861 F.2d at 201, it is clear that “as a practical matter, a judgment against [OHSU] puts state funds at risk.” Oberg, 804 F.3d at 658. Because the state provides funding to OHSU, “funds available to pay any judgment effectively belong to the state rather than the agency.” Id. As the court in Danielrecognized 25 years ago, “if there is a shortfall of university funds, secured by university generated revenues or property, available to satisfy state general bond obligations issued for university purposes, the state legislature may provide funds to satisfy the shortfall.” 988 F.Supp. at 163. In fact, the legislature has expressed its “current intention” to pay for other shortfalls. O.R.S. 353.370. As OSHU correctly contends, if it “increased its appropriation request due to a money judgment, ‘the State would ultimately have to choose between increasing its appropriation to make up the shortfall, or shirking' its duty to provide higher education and health care services to Oregonians.” Reply 5, ECF 132 (quoting United States ex rel. Lesinski v.S. Fla. Water Mgmt. Dist., 739 F.3d 598, 605 (11th Cir. 2014)).
Plaintiff cites Crowe v. Or. State Bar, 989 F.3d 714 (9th Cir. 2021), a recent case in which the Ninth Circuit held that the Oregon State Bar was not an arm of the state. Importantly, however, Oregon law provides that, with respect to the Oregon State Bar, “[n]o obligation of any kind incurred or created under this section shall be, or be considered, an indebtedness or obligation of the State of Oregon.” O.R.S. 9.010. There is no such limiting statute with respect to OHSU. In fact, the Ninth Circuit has found other educational institutions to be arms of the state. Hagel v. Portland State Univ., 237 Fed.Appx. 146, 147-48 (9th Cir. 2007) (Portland State University); Rounds v. Or. State Bd. of Higher Educ., 166 F.3d 1032, 1035-36 (9th Cir. 1999) (University of Oregon).
The balance of the factors weigh in favor of sovereign immunity as well. OHSU “performs central governmental functions.” See Mitchell, 861 F.2d at 201. O.R.S. 353.020 “explicitly states that OHSU shares the first attribute of an instrumentality of the state- performing functions or providing services that the government has traditionally performed or provided.” Clarke v. Oregon Health Scis. Univ., 343 Or. 581, 597 (2007). The Oregon Supreme Court further explained that
OHSU's purposes . . . include “promot[ing] the public welfare of the people of the State of Oregon[,]” in part through providing education and health care to the people of the State. ORS 353.030(4). Without question, the particular combination of education and health care in the form of a research and teaching hospital is traditionally a function performed by the state, at least for the last century.Id. at 599.
OHSU may sue in its own name and be sued, O.R.S. 353.050(5), and OHSU may acquire property in its own name. O.R.S. 353.050(4)). Importantly, however, Oregon law provides that any “[l]egal title to real property and facilities acquired by the State of Oregon prior to July 1, 1995, and utilized by Oregon Health and Science University shall remain with the State of Oregon,” O.R.S. 353.108(1), and OHSU has a 99-year ground lease with the state for that property. O.R.S. 353.108(4). Moreover, OHSU cannot sell any of the property that it leases from the state. O.R.S. 353.108(6). Finally, just like the state, OHSU may acquire private property by eminent domain, O.R.S. 353.110, which is “the power inherent in a sovereign state of taking or of authorizing the taking of any property within its jurisdiction for a public use or benefit.” MacVeagh v. Multnomah Cnty., 126 Or. 417, 431-32 (1928).
Finally, while OHSU is a corporation, it is a public one that was designed to maintain the public policies and missions of the university but offer more “operating flexibility.” O.R.S. 353.010(2). Importantly, the statute that makes OHSU a public corporation states that “[t]he university shall be a governmental entity performing governmental functions and exercising governmental powers.” O.R.S. 353.020.
As noted, every court that has previously applied these factors has concluded that OHSU is an arm of the state. Recently, in Mitchell v. OHSU, the plaintiff presented extensive briefing on this issue arguing, among other things, that OHSU is primarily a research hospital that is 98.7% private, it performs few, if any, governmental functions, and that judgments will not be satisfied by state funds. No. 3:18-cv-01982-BR, Pl.'s Opp. Def.'s Mtns. Dismiss 3-9, ECF 13. After observing the issue had been “repeatedly litigated,” Judge Mosman rejected the plaintiff's arguments and found OHSU is an arm of the state. Id., Order, ECF 28; id.,Transcript 7, ECF 34. In fact, the arguments raised in Mitchell v. OHSU were substantially similar to those presented 25 years ago to the Western District of New York in Daniel. There, the plaintiff argued that only 5.6% of OHSU's revenues were attributable to state funding and any judgment would not be paid from the state treasury. 988 F.Supp. at 164. In a lengthy decision, the court rejected those and other arguments, finding “the fact that the Oregon Health Sciences University Hospital must submit a budget to the state for approval suggests that it is an agency of the state for Eleventh Amendment purposes.” Id. The court also noted that “no statutory limitations exist that restrict the amount of funding that the university and University Hospital can receive from the state. It is generally recognized that the state's obligation to contribute to the revenues of the university is more important than the amount of the contribution.” Id.; see also Doughty, 2017 WL 1364208 at *3 (applying five factors to find OHSU is arm of the state). The result is no different here; because OHSU is an arm of the state, it is entitled to Eleventh Amendment immunity and the §§ 1981 and 1983 claims against it must be dismissed.
III. Disparate Treatment and Discrimination Claims Under Federal and State Law
Plaintiff's first, fifth, sixth, and seventh claims allege that defendants discriminated against her because of her sex and race in violation of the U.S. Constitution and federal and state civil rights laws. Sec. Am. Compl. ¶¶ 45-50, 57-66 (asserting claims under 42 U.S.C. § 1983, Title VII of the Civil Rights Act, Title IX, and O.R.S. 659A.030). Her second claim alleges that defendants “interfered with [her] ability to make and enforce contracts because of her race and ethnicity in violation of 42 U.S.C. § 1981.” Id. ¶¶ 51-52.
Plaintiff's retaliation claims are addressed separately below.
Employees suffer intentional discrimination, also known as “disparate treatment,” when they are “singled out and treated less favorably than others similarly situated” because of their protected class. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). A plaintiff in an employment discrimination suit may prevail on summary judgment by providing actual evidence of discrimination or by using the burden-shifting framework of McDonnellDouglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). Lowe v. City of Monrovia, 775 F.2d 998, 1005-07 (9th Cir. 1985).
The McDonnell Douglas framework has three steps. First, the employee must establish a prima facie case of discrimination. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002). “If the plaintiff establishes a prima facie case, the burden of production-but not persuasion-then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action.” Id. And if the employer does so, the plaintiff must show that the employer's reason is pretextual. Id. “A plaintiff alleging employment discrimination need produce very little evidence in order to overcome an employer's motion for summary judgment. This is because the ultimate question is one that can only be resolved through a searching inquiry-one that is most appropriately conducted by a factfinder, upon a full record.” Davis, 520 F.3d at 1089 (citation and quotation marks omitted).
The burden-shifting framework applies to discrimination claims brought under Title VII, Title IX, sections 1981 and 1983, and O.R.S. 659A.030. Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1180 n.11 (9th Cir. 1998) (“This Court applies the same standards to disparate treatment claims pursuant to Title VII, . . . and §§ 1981 and 1983.”); Thomas v. Regents of Univ.of California, No. 19-CV-06463-SI, 2020 WL 1139595, at *3 (N.D. Cal. Mar. 9, 2020) (“Several courts have held that Title VII disparate treatment framework applies to or can inform analysis of Title IX claims.”) (citing Bowers v. Bd. of Regents of Univ. of Ga., 509 Fed.Appx. 906, 910 (11th Cir. 2012); Emeldi v. Univ. of Or., 698 F.3d 715, 724 (9th Cir. 2011)); Tornabene v. Nw.Permanente, P.C., 156 F.Supp.3d 1234, 1242 (D. Or. 2015) (“The substantive analysis for discrimination under Title VII of the Civil Rights Act (42 U.S.C. § 2000e-2(a)) and ORS § 659A.030(b) is substantially similar, and courts often analyze such claims together.”). Finally, when a plaintiff claims race and gender discrimination, the court must determine “whether the employer discriminates on the basis of that combination of factors, not just whether it discriminates against people of the same race or the same sex.” Lam v. Univ. of Hawaii, 40 F.3d 1551, 1562 (9th Cir. 1994).
Thus, all of plaintiff's claims alleging disparate treatment because of her gender and race are analyzed together.
A. Prima Facie Case
The plaintiff must first establish a prima facie case of discrimination by showing that (1) the plaintiff belongs to a protected class; (2) the plaintiff was qualified for the position; (3) the employer subjected plaintiff to an adverse employment action; and (4) similarly situated employees who were not members of the protected class were treated more favorably. Villiarimo, 281 F.3d at 1061 . The proof necessary to establish a prima facie case for Title VII at summary judgment is “minimal” and need not be based on a preponderance of the evidence. Id.at 1062.
An adverse employment action for purposes of Title VII discrimination is one that “materially affects the compensation, terms, conditions, or privileges of employment.” Davis, 520 F.3d at 1089. “A plaintiff cannot establish prima facie discrimination if she was not demoted, was not stripped of work responsibilities, was not handed different or more burdensome work responsibilities, was not fired or suspended, was not denied any raises, and was not reduced in salary or any other benefit.” Maxwell v. Kelly Servs., Inc., 730 F.Supp.2d 1254, 1267-68 (D. Or. 2010) (citing Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 2000)) (internal quotation marks omitted). “[A] mere inconvenience or an alteration of job responsibilities” does not constitute an adverse employment action. Sanchez v. Denver Pub.Schs., 164 F.3d 527, 532 (10th Cir. 1998).
For the prima facie case here, plaintiff asserts she is an Asian woman, and when defendants recruited here, she had a national reputation and positive teaching evaluations. Defendants do not dispute plaintiff's membership in a protected class or her qualifications. See Mot. Summ. J. 19-21, ECF 118.
Bala Decl. ¶ 2, ECF 121; Ellis Decl., Ex. 51 (Kaul Dep. 31:16-33:7), ECF 129-51; Ellis Decl., Ex. 191 at 1-2, ECF 128-41.
As for the “adverse actions,” a review of the evidence shows the following: Plaintiff began working at OHSU in January 2015. Dr. Charles Henrikson, the director of electrophysiology (“EP”), Dr. Cigarroa, the clinical chief, and Dr. Kaul, the chief of cardiology, were plaintiff's supervisors. Beginning in May 2015, Dr. Henrikson began receiving complaints from staff members expressing concerns about plaintiff's “communication style” and conduct during procedures in the EP lab. Complaints about plaintiff's behavior and professional demeanor continued throughout her time at OHSU. The complaints largely alleged that plaintiff was “direct, authoritarian and intimidating,” “very unprofessional and abusive,” “demeaning and belittling,” and “condescending and bullying and harassing.”
Brischetto Decl., Ex. 6 at 1, ECF 128-2.
Ellis Decl., Ex. 49 (Henrikson Dep. 12:13-13:6), ECF 129-49.
Id. at 51:20-52:12.
Ellis Decl., Ex. 48 (Heitman-Allen Dep. 83:14-16), ECF 129-48.
Kormondy Decl., Ex. 15 at 1, ECF 119-15.
Kormondy Decl., Ex. 16 at 1, ECF 119-16.
Kormondy Decl., Ex 37 (Schulman Dep. 19:2-6), ECF 119-37.
In August 2015, Plaintiff met with Dr. Henrikson about the complaints; plaintiff felt like the complaints against her were unfair and were not properly investigated, and that Dr. Henrikson was “being very hard on [her] and not supportive . . . and not listening” to her perspective. Complaints from staff and fellows about plaintiff's unprofessional conduct and communications continued to come in. Plaintiff told Dr. Kaul that she thought she was being singled out for her “directness” and was treated differently than her male colleagues. Plaintiff had another meeting, this time with Dr. Henrikson, Dr. Cigarroa, and Dr. Camacho, who oversaw cardiology fellows, to discuss the complaints about her interactions with fellows.On October 1, 2015, Dr. Kaul emailed Linda Strahm (the Human Resources employee responsible for the School of Medicine) that he did not want to renew plaintiff's contract. Dr. Henrikson met with Strahm on October 2, 2015, and after consulting with Dr. Kaul, the doctors issued a Performance Expectations Plan to plaintiff on October 9, 2015. The Plan identified three different job responsibilities that defendants expected plaintiff to focus on improving: “Professional Interactions,” “Teaching Expectations,” and “Team Participation.” The plan directed plaintiff to “immediately be more respectful of all faculty, staff and students and improve [her] professionalism” and “immediately ensure when an issue arises to constructively work to problem solve.” Further, plaintiff was directed to “ensure [to] provide teaching during [her] procedures,” and to “immediately engage in the activities of the institute by actively participating in conferences, taking call and becoming a valuable team member with a positive attitude.” The Plan was later down-graded to a “coaching letter” but remained in plaintiff's file.
Ellis Decl., Ex. 46 (Bala Dep. 148:19-20, 152:21-23), ECF 129-46.
Kormondy Decl., Ex. 6 at 1, ECF 119-6, Ex. 7 at 1-2, ECF 119-7.
Bala Dep. 81:25-82:5, ECF 129-46.
Kormondy Decl., Ex. 8 at 2, ECF 119-8.
Kormondy Decl., Ex. 10 at 2, ECF 119-10; Kaul Dep. 66:21-67:7, ECF 119-35; Ellis Decl., Ex. 54 (Strahm Dep. 34:19-21), ECF 129-54.
Kormondy Decl., Ex. 11 at 1-2, ECF 119-11; Henrikson Dep. 137:3-139:2, 144:8-19, ECF 129-49.
Kormondy Decl., Ex. 11 at 1-2, ECF 119-11.
Id.
Id.
Kormondy Decl., Ex. 19 at 1, ECF 119-19; Henrikson Dep. 214:3-215:7, ECF 129-49.
On November 12, 2015, Dr. Jeffrey Kirsch, chair of anesthesiology, emailed plaintiff:
I have received too many complaints about your bullying and harassment of anesthesiology staff and faculty over the past several months. This is a clear violation of OHSU policy. Unfortunately, I am losing the number of anesthesia and staff members who are willing to work with you. I have copied Dr. Kilo, our
CMO and Mike Tom, the director of Equal Opportunity at OHSU. I suggest that Mr. Tom's staff do an investigation to uncover the reason for your apparent feeling that you need to continuously bully and harass the anesthesiology staff at OHSU.
Kormondy Decl., Ex. 14 at 1, ECF 119-14.
Strahm investigated Dr. Kirsh's allegations. During the investigation, plaintiff was not permitted to work in the clinic. After the investigation, Dr. Kirsch, Dr. Henrikson, and Dr. Kaul developed a “plan for [plaintiff's] return to working with anesthesia staff.” Part of the plan required plaintiff to have a pre-procedure “huddle” with anesthesia staff to discuss the procedure. Additionally, an email was sent to everyone attending the procedure, requesting any “feedback about how the case went from an interpersonal interaction/communication standpoint.”
Strahm Dep. 94:15-24, ECF 129-54.
Brischetto Decl., Ex. 93 at 1, ECF 128-23.
Henrikson Dep. 179:16-22, ECF 129-49.
Id. at 188:11-19.
Strahm Dep. 142:-5-17, ECF 129-54; Ellis Decl., Ex. 65 at 2, ECF 129-9.
In February of 2016, Dr. Henrikson reported to Strahm that plaintiff had shown “considerable improvement” in “professional behavior and team behavior,” though Dr. Henrikson also noted that plaintiff was still “challenging” and identified other issues with plaintiff's work. It seemed that plaintiff “could not hear the feedback that how she communicated with others was felt and seen as very disrespectful. And she continued to get complaints about that....And Dr. Henrikson thought she had made some improvements but it still was not what he had hoped it would be.”
Strahm Dep. 183:1, 184:14-186:17, 188:4-9, ECF 129-54.
Id. at 189:10-18.
In May of 2016, plaintiff was offered a one-year “terminal contract,” which meant that her contract would not likely be renewed when it expired. Complaints about plaintiff's interactions with others and her communicate style continued. Plaintiff spoke with Dr. Sharon Anderson, Chair of the Department of Medicine, and stated she believed she was being treated unfairly because of her gender. Plaintiff resigned on March 29, 2017, and her last day with OHSU was June 19, 2017.
Kormondy Decl., Ex. 21 at 1, ECF 119-21; Henrikson Dep. 221:17-223:15, ECF 129-49.
Henrikson Dep. 225:12-225:21, ECF 129-49.
Strahm Dep. 262:19-265:24, ECF 129-54.
Kormondy Decl., Ex. 28 at 1, ECF 119-28.
Defendants recognize that plaintiff's Second Amended Complaint alleges the following adverse actions: (1) defendants put plaintiff on a “Performance Expectation Plan”; (2) defendants imposed a pre-procedure “huddle” protocol between plaintiff and anesthesiology staff; (3) defendants investigated complaints from staff and colleagues about her conduct; and (4) defendants did not renew her contract, which caused plaintiff to resign in lieu of being terminated. Mot. Summ. J. 21, ECF 118 (citing Sec. Am. Compl. ¶¶ 46, 56, 58, 59, 62, 65). Defendants assert that three of these actions-instituting the Performance Expectation Plan, imposing the huddle protocol, and investigating complaints against plaintiff-are not adverse actions that could establish a prima facie case of discrimination. Id. at 19-20.
The Performance Expectation Plan and subsequent down-grade to a “coaching letter” is not an adverse employment action for purposes of a Title VII discrimination claim because it did not substantively change plaintiff's work responsibilities or how she was compensated, or institute any suspension or other formal discipline. Cozzi v. Cty. of Marin, 787 F.Supp.2d 1047, 1061 (N.D. Cal. 2011) (“Written warnings and performance improvement plans are not adverse actions where they do not materially affect the terms and conditions of employment.”); Kortan, 217 F.3d at 1113 (no adverse employment action when the plaintiff was not demoted, not stripped of work responsibilities, not handed different or more burdensome work activities, not fired or suspended, not denied any raises, and not reduced in salary or any other benefit).
Nor was defendants' investigation into complaints about plaintiff behavior and conduct an adverse employment action. “Merely being subject to an investigation while others are not does not rise to the level of an adverse employment action for purposes of Title VII.” Lee v.Hawaii, No. CIV0900032SOM/KSC, 2010 WL 235009, at *7 (D. Haw. Jan. 20, 2010), aff'd, 454 Fed.Appx. 610 (9th Cir. 2011) (“An investigation into alleged misconduct is not such adverse employment action and cannot support [the plaintiff's] retaliation claim.”) (quoting Rademakersv. Scott, No. 09-718, 2009 WL 3459196, at *4 (M.D. Fla. Jan 22, 2009); Niimi-Montalbo v.White, 243 F.Supp.2d 1109, 1127 (D. Haw. 2003) (“While an investigation might be undesirable or distasteful, it does not automatically or necessarily disadvantage an employee.”).
The pre-procedure huddle protocol that defendants instituted as a condition for plaintiff's return to clinic privileges also is not an adverse action because plaintiff already used a preprocedure huddle with anesthesiology as part of her practice, and plaintiff herself did not view the huddle procedure as any kind of “punishment.” Thus, it did not materially affect the way she completed her work. Kortan, 217 F.3d at 1113.
Bala Dep. 89:8-90:25, ECF 129-46.
The subsequent restriction of plaintiff's clinical privileges that resulted from defendants' investigation, though, was an adverse action because it prevented plaintiff from treating her patients. See Ulrich v. City and Cnty. of San Francisco, 308 F.3d 968, 972, 977 (9th Cir. 2002) (finding “more than trivial adverse employment actions” for Frist Amendment retaliation claim where the “hospital subjected [the plaintiff] to an investigation that threatened to revoke his clinical privileges.”); cf. Campbell v. Haw. Dep't of Educ., 892 F.3d 1005, 1013 (9th Cir. 2018) (“mere fact that employer received and investigated allegations of misconduct against [the plaintiff]-with no resulting change to the conditions of her employment” was not adverse employment action).
There is no dispute that OHSU did not renew plaintiff's contract, which was set to expire in June 2017, that plaintiff resigned on March 29, 2017, and her last day of employment was June 19, 2017. Termination is obviously an adverse employment action. Little v. WindermereRelocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002) (“[O]f course, termination of employment is an adverse employment action.”).
Plaintiff also asserts that defendants “issued negative references to employers” as an additional adverse action. That conduct was not alleged in the complaint, and thus is not considered in resolving this motion. See Updike v. Multnomah Cty, 870 F.3d 939, 954-55 (9th Cir. 2017) (the allegations in the complaint itself must give the defendant fair notice of what the plaintiff's claim is); Pickern v. Pier 1 Imports, Inc., 457 F.3d 963, 968-69 (9th Cir. 2006) (a party may not raise new claims in response to a summary judgment motion where plaintiff's complaint failed to “give the defendant fair notice of what the plaintiff's claim [was] and the grounds upon which [it] rest[ed]” as required by Federal Rule of Civil Procedure Rule 8(a)(2)).
The fourth element of the prima facie cases requires the plaintiff to establish either that she was treated less favorably than similarly situated individuals outside of her class, or that her position was filled by someone who was not a member of her class. Villiarimo, 281 F.3d at 1062; Quaranta v. Mgmt. Support, 255 F.Supp.2d 1040, 1049 (D. Ariz. 2003) (citing Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996)). Plaintiff here asserts that she was replaced by a male doctor of Iranian dissent. Dr. Henrikson also testified that the doctor is a male. That is sufficient to satisfy the fourth element of plaintiff's prima facie case. See Villiarimo, 281 F.3d at 1062 (stating that a female plaintiff can establish the fourth element by showing that “similarly situated men were treated more favorably, or her position was filled by a man.”).
Defendant's motion to strike the portion of plaintiff's declaration regarding her replacement on grounds of hearsay and lack of personal knowledge is denied. Reply 14 n.13, ECF 132. Plaintiff states under penalty of perjury that she “knows” the replacement doctor, his gender, and his background, Bala Decl. ¶ 3, ECF 121, and at her deposition she testified that the doctor was her “partner.” Bala Dep. 26:8-12, ECF 129-46. To the extent defendant's object that plaintiff relied on information on defendant's own website, the accuracy of which defendants do not dispute, to build her personal knowledge about her replacement hire, that objection is overruled. Reply 14 n.13, ECF 132.
Henrikson Dep. 11:14-15, ECF 129-49.
B. Legitimate, Nondiscriminatory Reason
Plaintiff established a prima facie case as to the limitations on her clinical privileges and her termination, and so the burden of production shifts to defendants “to articulate some legitimate, nondiscriminatory reason for the challenged action.” Villiarimo, 281 F.3d at 1062 (citing McDonnell Douglas, 411 U.S. at 802). Here, defendants have offered ample evidence that plaintiff's communication style and “bullying,” “demeaning,” and “abusive” treatment of coworkers, subordinates, and other staff at OHSU generated numerous complaints, and that these complaints were the primary bases for restricting her clinical privileges and eventually choosing not to renew her contract. These are legitimate, nondiscriminatory reasons for defendants' actions. See Grimsley v. Charles River Lab'ys, No. 3:08-CV-00482-LRH, 2011 WL 4527415, at *7 (D. Nev. Sept. 28, 2011), aff'd sub nom. Grimsley v. Charles River Lab'ys, Inc., 564 Fed.Appx. 333 (9th Cir. 2014) (finding that plaintiff's “ineffective communication and domineering management style” and multiple complaints from colleagues about plaintiff's conduct were legitimate, nondiscriminatory reasons for termination); Glenn v. Wilkie, No. 2:18-CV-01162-BJR, 2020 WL 3839633, at *5 (W.D. Wash. July 8, 2020) (plaintiff's “alleged bullying and intimidating conduct towards subordinates” was a legitimate, nondiscriminatory reason for termination).
C. Pretext
“A plaintiff may show that a defendant's nondiscriminatory reason is pretextual either with indirect evidence, by presenting evidence that the explanation is not credible, or with direct evidence, by showing that the defendant's action was more likely than not motivated by a discriminatory purpose.” Tornabene, 156 F.Supp.3d at 1244 (citing Snead v. Metro. Prop. &Cas. Ins. Co., 237 F.3d 1080, 1093-94 (9th Cir. 2001)). “These forms of evidence are not mutually exclusive, and a court must consider the cumulative evidence presented by the plaintiff.” Id. (citing Snead, 237 F.3d at 1094).
A plaintiff “need produce very little evidence in order to overcome an employer's motion for summary judgment. This is because the ultimate question is one that can only be resolved through a searching inquiry-one that is most appropriately conducted by a factfinder, upon a full record.” Chuang, 225 F.3d at 1124 (internal quotation marks omitted). Because “discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses,” courts are directed to “zealously guar[d] an employee's right to a full trial.” McGinest, 360 F.3d at 1112.
“[I]n establishing that gender played a motivating part in an employment decision, a plaintiff in a Title VII case may introduce evidence that the employment decision was made in part because of a sex stereotype.” Jespersen v. Harrah's Operating Co., 444 F.3d 1104, 1111 (9th Cir. 2006) (citation and internal quotation marks omitted). And a reasonable juror here could conclude that the complaints lodged against plaintiff-that she was “abrasive,” bullying, condescending, or “curt”-were driven by gender stereotypes about how women should act in the workplace. See Arjangrad v. JPMorgan Chase Bank, N.A., No. 3:10-CV-01157-PK, 2012 WL 1189750, at *24 (D. Or. Apr. 9, 2012) (finding that reasonable juror could conclude that criticism of female employee's “aggressive, argumentative, and contentious demeanor” suggested defendants' “intolerance of [plaintiff's] non-conformity with the submissive female stereotype”); Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1072 (9th Cir. 2003), asamended (Jan. 6, 2004) (finding that “management repeatedly echoed the all too familiar complaints about assertive, strong women who speak up for themselves: ‘difficult,' ‘negative attitude,' ‘not a team player,' ‘problematic,' ” and directing district courts to “reject such sexual stereotypes and learn to identify the oft employed rhetoric that could reveal illegitimate motives.”).
Kaul Dep. 82:22-25, ECF 129-51.
Ellis Decl., Ex. 50 (Cigarroa Dep. 63:17-64:12), ECF 129-50.
Numerous cases have held that employment decisions made on the basis of a woman's aggressive personality or “flawed interpersonal skills” can be improperly motivated by gender stereotypes. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (“In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”); Margolis v. Tektronix,Inc., 44 Fed.Appx. 138, 141 (9th Cir. 2002) (denying summary judgment in part based on supervisor comments that female plaintiff was “pushy” and “aggressive,” reasoning that “[s]exual stereotyping, as possibly indicated by such remarks, can serve as evidence that gender played a role in the employer's decision”) (citing Price Waterhouse, 490 U.S. at 251); Joll v.Valparaiso Cmty. Sch., 953 F.3d 923, 931 (7th Cir. 2020) (“[A] jury could draw on its experience to conclude that the same behavior may be labeled “assertive” in a man and “aggressive” in a woman. In other words, a reasonable jury could conclude that [the female plaintiff] was being penalized for transgressing the age-old stereotype that women are or ought to be submissive.”); Klings v. New York State Off. of Ct. Admin., No. 04-CV-3400 KAM LB, 2010 WL 1292256, at *15 (E.D.N.Y. Apr. 5, 2010) (ruling that jury could find that criticism that female plaintiff's “rigid personality, micromanagement style, and difficulties interacting with people” was “based on a gender bias”).
Social science and legal academic literature is replete with studies across decades that women who exhibit the types of leadership and personal qualities celebrated in men “will experience social censure and personally directed negativity, will be viewed as less socially appealing, and will be less liked and more personally derogated in relation to men with similar qualities.” Alice Woolley, Elysa Darling, Nasty Women and the Rule of Law, 51 U.S.F. L. REV. 507, 533 (2017) (explaining stereotyped thinking that “[w]omen are prohibited from demonstrating the self-assertion, dominance, and achievement orientation so celebrated in men, and are expected to be communal, demonstrating socially sensitive and nurturing attributes reflecting their concern for others”) (footnotes and internal quotation marks omitted); see also Diana Burgess & Eugene Borgida, Who Women Are, Who Women Should Be Descriptive and Prescriptive Gender Stereotyping in Sex Discrimination, 5 PSYCHOL. PUB. POL'Y & L. 665, 670 (1999) (“In general, women are believed to be warm, caring, deferential, and interpersonally skilled, whereas men are believed to be strong, controlling, assertive, and achievement-oriented. Women are seen as ‘nice but incompetent'; men are seen as ‘competent but maybe not so nice.'”) (footnote omitted).
The offered expert declarations and reports from Dr. Carnes, ECF 125, and Dr. Glick, ECF 126, are not relied on here. See Price Waterhouse, 490 U.S. at 256 (“It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring ‘a course at charm school.' ”). Nor is any ruling about their admissibility suggested. Rather, those questions are best resolved through more fully developed motions practice and, if necessary, a Daubert hearing.
There is evidence that other male doctors who engaged in behavior similar to plaintiff- like being “direct” or “intense” in communications-were not subject to the same types of complaints from staff or discipline. See Moussouris v. Microsoft Corp., No. C15-1483JLR, 2018 WL 3584701, at *16 (W.D. Wash. July 11, 2018) (plaintiffs testimony that men acting “aggressive” or “direct” in communications were not given negative feedback suggested her unfavorable performance reviews could be driven by sexist stereotyping). Several times, plaintiff was in the room and personally observed this behavior by male doctors, but no one from OHSU contacted her to discuss whether the doctor in question had acted unprofessionally. Plaintiff reported that Dr. Zahr, a male doctor, was “very intense” during lab, but his intensity was “accepted, acknowledged, and in his favor,” while she was criticized for exhibiting the same traits. Male doctors asked for silence during key portions of procedures, just like plaintiff did, yet male doctors were not accused of or investigated for “bullying.” Plaintiff was criticized for “calling [her] own patients” and being “dismissive” of the nurse on the case, but male doctors were not subjected to complaints for calling their own patients. A reasonable juror could infer that either staff did not complain about male doctors who were “direct,” “intense,” “demanded silence during procedures,” and “dismissive,” or that OHSU did not investigate similar complaints about male doctor's conduct. Either inference suggests that plaintiff's gender was a factor in how she was treated.
Bala Dep. 96:14-100:6, 115:6 - 116:11, ECF 129-46; Bala Decl. ¶ 14, ECF 121.
Ellis Decl., Ex. 151 at 1, ECF 129-34.
Bala Dep. 96:24-97:4, ECF 129-46.
Id. at 69:3-20; Strahm Dep. 171:2-172:13, ECF 129-54.
Plaintiff told her supervisors and human resources that she believed the complaints against her were unfair and that she was being singled out from her male colleagues, but defendants did not act on plaintiff's complaints and continued to give credence to what plaintiff claimed were sexist complaints. In September of 2015, plaintiff reported to Dr. Kaul that she “wasn't being treated similar to [her] male colleagues in the . . . lab.” She also told Dr. Kaul that one of the male nurses had introduced her to the attending anesthesiologist as “nurse.” Dr. Kaul did not follow up on plaintiff's concerns or start an investigation; rather he told plaintiff to “buy [the lab nurses] donuts and maybe you can improve upon your relationship.”
Bala Dep. 81:25-82:9, 153:12-16, ECF 129-46.
Id. at 61:10-21, 153:18-23.
Id. at 61:22-62:2, 154:13-24.
In December of 2015, plaintiff complained to Dr. Henrikson and a human resources representative that the anesthesiology “huddle” and especially a pre-procedure email that encouraged those attending a procedure with plaintiff to report “how the case went from an interpersonal interaction/communication standpoint” were unwarranted and “humiliating,” and that she “should be allowed to practice in the . . . lab just like my partners and colleagues with no discrimination.” Plaintiff repeatedly told the human resources representative that she was not being treated fairly because the complaints about her conduct were in response to her “performing patient care and just asking questions like [she] normally would for any case” and that she was “being subject to [a] different set . . . of standards compared to [her] male colleagues.”
Id. at 209:20-211:16; Ellis Decl., Ex. 63 at 1, ECF 129-8.
Bala Dep. 63:12-21, ECF 129-46; see also Strahm Dep. 234:25-235:7, ECF 129-54 (explaining that plaintiff reported to HR “a couple of times that she felt that she's being treated differently as a woman.”).
But no one conducted an investigation. Instead, human resources told plaintiff to report the alleged discrimination to the Department of Affirmative Action and Equal Opportunity (“AAEO”), although plaintiff disputes that the human resources representative told her about the AAEO referral process until March of 2017, just a few months before her terminal contract was to end.
Bala Dep. 192:8-17, ECF 129-46.
Id. at 194:13-195:5.
After OHSU gave plaintiff a terminal contract in March of 2016, plaintiff continued to complain that she was being unfairly treated because of her gender. In July of 2016, plaintiff sent an article to human resources about gender stereotypes in the workplace and wrote “I need to grow a mustache.” In May of 2017, one of the lab technicians referred to “the B word” while performing a procedure with plaintiff; when Dr. Henrikson found out, he did not investigate because plaintiff was “only here for another 2 weeks.”
Strahm Dep. 233:22-234:23, ECF 129-54; Brischetto Decl., Ex. 136 at 1, ECF 128-32.
Brischetto Decl., Ex. 157 at 1-2, ECF 128-35.
Plaintiff's evidence of gender discrimination is sufficient to survive summary judgment. There is no dispute that defendants received many complaints about plaintiff's conduct. Nor is there any dispute that defendants were allowed to investigate those complaints and assert those complaints as a “legitimate, nondiscriminatory reason” for terminating plaintiff. There is sufficient evidence, though, for a reasonable juror to conclude that, given the stereotypical nature of the complaints, defendants' vigor in investigating and disciplining plaintiff while ignoring her own complaints of unequal treatment, and the apparent double-standard for male doctors who exhibited the same behavior but did not garner the same complaints or investigations, gender “played a motivating factor” in defendants' discipline and eventual termination of plaintiff. Costa v. Desert Palace, Inc., 299 F.3d 838, 854 (9th Cir. 2002). Accordingly, defendant's motion for summary judgment on plaintiff's gender discrimination claims must be denied. See Davis, 520 F.3d at 1089.
There is not, however, sufficient evidence to sustain any discrimination claims that rely on plaintiff's race. Though the Ninth Circuit has instructed courts to examine the “combination of factors” when “two bases for discrimination exist,” Lam, 40 F.3d at 1562, that analytic framework is not a “per se rule that if a plaintiff can produce evidence for one type of discrimination, all other mere allegations of discrimination must survive summary judgment.” Lamb v. Kaiser Found. Health Plan Nw., No. 3:14-CV-01508-MO, 2015 WL 6124002, at *4 (D. Or. Oct. 16, 2015) (“[T]here can be some cases where the inference established in Lam is completely unsupported by a set of facts. This is one of those cases.”); Grant v. MarriottOwnership Resorts, Inc., No. CV 16-00451 LEK-RLP, 2018 WL 6112963, at *18 (D. Haw. Nov. 21, 2018) (rejecting argument that Title VII race-based claims were “inseparable” from gender claims because “[t]he allegedly discriminatory treatment and harassment . . . was either distinctly race-based or distinctly sex-based.”).
Plaintiff's complaints about her unfair treatment, discussed at length above, were solely based on her gender. Plaintiff's deposition testimony does not mention her race, nor does any of her documentary evidence. Nor is there sufficient evidence in the record that any of the decisionmakers involved with plaintiff's employment were motivated by plaintiff's race. Plaintiff offers a racial discrimination complaint filed by another doctor in September of 2014 against Dr. Cigarroa as evidence of racial animus, but the complaint is not supported by any description of what happened, and there is no information about how the complaint was resolved that might indicate the complaint was well-founded. The fact that a single, and rather conclusory, discrimination complaint was filed several years before plaintiff was effectively terminated does not create a question of fact about whether she was subject to gender and race discrimination.
Ellis Decl., Ex. I at 1-3, ECF 129-45.
The Brischetto FRCP 56(d) Declaration (ECF 127) is solely based on inadmissible hearsay and is therefore not considered. Carroll v. Holder, No. CIV. 09-3093-CL, 2011 WL 7091804, at *4 (D. Or. Sept. 30, 2011), report and recommendation adopted, No. CIV. 09-3093-CL, 2012 WL 214599 (D. Or. Jan. 24, 2012) (“Evidentiary affidavits filed in connection with motions for summary judgment must be made on personal knowledge. Hearsay statements in affidavits are inadmissible.”) (internal citation and quotation marks omitted) (citing Japan Telecom, Inc. v.Japan Telecom Am. Inc., 287 F.3d 866, 875 n.1 (9th Cir. 2002)).
And neither does plaintiff's evidence offered to show that “OHSU has a discriminatory culture.” Resp. 31-32, ECF 130. In the cases that plaintiff cites, the primary evidence of “discriminatory culture” was discriminatory statements made by managers or supervisors. Id. (citing Risch v. Royal Oak Police Dept., 581 F.3d 383, 393 (6th Cir. 2009) (discriminatory comments made by sergeants and discriminatory work assignments were evidence of discriminatory atmosphere); Conway v. Electro Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987) (sexist comments by company president and manager with authority to deny female employee's requested raise were relevant to show “corporate state of mind.”); Margolis, 44 F. App'x. at 141 (supervisor told plaintiff she was “pushy” and “aggressive”). Here, the statements made from OHSU leadership are opposed to discrimination (“in the future, I want [discrimination and harassment] to be zero”) and express the desire for “real, decisive, clear and tangible action to correct the root causes” of discrimination, and there is no evidence tying any of these statements to the people responsible for the ultimate decision not to renew plaintiff's contract. See Kelly v.Washington State Dep't of Transportation, No. C16-522 RSM, 2018 WL 5240091, at *4 (W.D. Wash. Oct. 22, 2018), affd, 776 Fed.Appx. 426 (9th Cir. 2019) (evidence of discriminatory culture not tied to decision to terminate plaintiff was insufficient to survive summary judgment).
Brischetto Decl., Ex. 158 at 1, ECF 128-36; Id. Ex. B at 2, ECF 128-48.
Similarly, the evidence about four “noose” incidents that apparently occurred somewhere in OHSU, that other people working at OHSU sometimes complained about their supervisors, or even that OHSU commissioned a study about harassment and discrimination at the institutionis not specific to the employment actions taken against plaintiff and do not establish those actions were motivated by plaintiff's race or the combination of plaintiff's gender and race.
In considering the report attached to plaintiff's motion to supplement the record on summary judgment, no ruling is made or suggested about its potential admissibility at trial. Plaintiff's motion to supplement (ECF 139) is granted, although the report has no effect on the conclusion that plaintiff's gender discrimination claim survives but her gender and race claim does not. And, again, defendant's motion for leave to file a sur-reply to plaintiff' motion to supplement (ECF 146) is denied.
Wendell Decl. 2-3, ECF 122; Brischetto Decl., Ex. G, ECF 128-53; Ex. H, ECF 128-54.
And, even assuming, without deciding, that Dr. Carnes expert report is admissible, it is not sufficient to create a question of fact regarding “gender and race” discrimination. No other evidence in the record, including plaintiff's own testimony and contemporaneous emails, or evidence from other women at OHSU, even suggest that gender and race was the reason she was terminated. Without any other evidence that any of the actions taken against plaintiff was on the basis of her gender and race, the expert report itself does not create a triable issue. See Vasquez, 349 F.3d at 642 (evidence of pretext must be “specific and substantial”).
Carnes Decl., Ex. A, ECF 125-1.
Heitman-Allen Dep. 29:6-24, ECF 129-48 (noting the “commonality between” women from different racial backgrounds who were terminated from OHSU was that they were “strong, opinionated women[.]”).
Given the lack of any other evidence in the record suggesting plaintiff's race was a motivating factor, defendant is entitled to summary judgment against plaintiff's “gender and race” discrimination claims, while plaintiff's gender discrimination claims under Title VII, Title IX, section 1983, and O.R.S. 659A.030 remain.
Section 1981 “creates a cause of action only for those discriminated against on account of their race or ethnicity[.]” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1123 (9th Cir. 2008). Thus, the lack of evidence of disparate treatment based on plaintiff's race necessitates summary judgment in defendants' favor of all of plaintiff's section 1981 claims.
IV. Federal and State Retaliation Claims
Plaintiff's first, fifth, sixth, and seventh claims also allege that defendants retaliated against her for “opposing sex discrimination” and “opposing substandard quality of care.” Sec. Am. Compl. ¶¶ 45-50, 57-66 (asserting claims under 42 U.S.C. § 1983, Title VII of the Civil Rights Act, Title IX, and O.R.S. 659A.030).
Again, plaintiff's section 1981 claims based on race are otherwise dismissed.
Plaintiff's federal and state law retaliation claims are subject to the same burden-shifting framework as her disparate treatment claims. Tornabene, 156 F.Supp.3d at 1248; see also Dawson v. EntekInt'l, 630 F.3d 928, 936 (9th Cir. 2011) (applyingMcDonnell-Douglas burden shifting to Oregon retaliation claim). The prima facie case is slightly different, though; plaintiff must show “(1) she engaged in a protected activity; (2) she suffered an adverse employment action; and (3) there was a causal connection between the two.” Surrell v. California Water Serv.Co., 518 F.3d 1097, 1108 (9th Cir. 2008) (citation omitted); see also Dawson, 630 F.3d at 936 (stating similar prima facie case for Oregon retaliation claim). Once established, the burden shifts to the defendant to set forth a legitimate, non-retaliatory reason for its actions, and if successful, the plaintiff then must produce evidence to show that the stated reasons were a pretext for retaliation. Tornabene, 156 F.Supp.3d at 1248 (citation omitted).
Plaintiff's complaints about discriminatory or unfair treatment because of her gender are protected activities. Jernigan v. Alderwoods Grp., Inc., 489 F.Supp.2d 1180, 1200 (D. Or.2007) (“Making a formal or informal complaint of discriminatory treatment constitutes protected activity for purposes of Title VII retaliation.”). Plaintiff testified that she complained to Dr. Kaul in September of 2015 that she “wasn't being treated fairly compared to my male colleagues.”Dr. Kaul remembers the conversation differently, but whom to believe is up the jury, not the court. See Prowse v. Mayorkas, No. CV 21-00057 ACK-WRP, 2022 WL 676398, at *11 (D. Haw. Mar. 7, 2022) (“A complaint need not specify ‘discrimination' or other ‘magic words' to qualify as protected activity.”). Additionally, plaintiff asserts that in December of 2015, she told human resources that the “anesthesiology investigation and also the probation was actually discriminatory” and that “compared to [her] male partners, [she] wasn't being treated equally . . . and this was gender discrimination.”
Bala Dep. 82:2-5, ECF 129-46.
Kaul Dep. 57:18-23, ECF 129-51.
Bala Dep. 191:18-192:7, ECF 129-46.
Plaintiff's complaints about substandard patient care, though, are not “protected activities” under Title VII, Title IX, or Oregon employment law because they do not address any type of illegal discrimination. See 42 U.S.C. § 2000e-3 (prohibiting discrimination against a person who “has opposed any practice made an unlawful employment practice by this subchapter,” or who “participated in any manner in an investigation, proceeding, or hearing under this subchapter.”); McPhail v. Milwaukie Lumber Co., 165 Or.App. 596, 606 (2000) (explaining that O.R.S. 659A.030(f) “prohibits discrimination against an employee who has opposed practices that the statute forbids”); Amb v. Winco Foods, Inc., No. CV 06-26 MO, 2006 WL 3325173, at *4 (D. Or. Nov. 13, 2006) (finding that internal grievance of employee discipline that did not mention discrimination was not protected activity).
And as already discussed, plaintiff suffered two adverse employment actions: the suspension of her clinical privileges and the non-renewal of her contract. As for the causal connection, plaintiff began reporting discrimination in September of 2015 and October of 2015. Her clinical privileges were suspended in November of 20 1 5. Plaintiff complained in December of 2015 about discrimination and what could favorably be interpreted as unfair treatment in February of 20 1 5.In April of 2016, Dr. Henrikson told human resources that he wanted to offer plaintiff a six-month terminal contract. The timing is sufficiently close to “support an inference of causation.” Tornabene, 156 F.Supp.3d at 1249; Thomas v. City ofBeaverton, 379 F.3d 802, 812 (9th Cir. 2004) (events two or three months apart can support causation).
Brischetto Decl., Ex. 93 at 1, ECF 128-23.
Bala Dep. 191:18-192:7, ECF 129-46; Ellis Decl., Ex. 111 at 1, ECF 129-19.
Strahm Dep. 195:13-16, ECF 129-54.
As explained above, defendants have stated a legitimate, nondiscriminatory reason for taking adverse action against plaintiff-i.e., the many complaints they received about plaintiff's communication style and conduct toward staff and fellows. The burden then shifts back to plaintiff to show that the reasons were a mere pretext for retaliation. While a reasonable juror could conclude that gender stereotypes were driving the complaints and that defendants discriminated against her by subjecting male doctors to different treatment, there is insufficient evidence to suggest that plaintiff's complaints about discrimination were part of the equation for defendants' taking adverse action against plaintiff. There is no evidence that defendants treated plaintiff differently after she made complaints, and nothing to suggest there was some other change in condition brought about by her complaints of discrimination. See Stegall, 350 F.3d at 1069 (termination nine days after complaint and evidence that supervisor's “relationship with [the plaintiff] took a turn for the worse” after complaint of discrimination); Bell v. ClackamasCnty., 341 F.3d 858, 866 (9th Cir. 2003) (close timing plus evidence of “contemporaneous displeasure” was sufficient); Little, 301 F.3d at 970 (timing plus sudden pay cut and employer about-face on importance of meeting certain statistics was sufficient to establish question of fact on retaliation).
And again, assuming without deciding that plaintiff's expert reports are admissible, plaintiff does not explain how the reports raise a question of fact about whether defendants acted against plaintiff because she complained about discrimination, rather than because she belonged to a protected class.
Dr. Carnes's report does not mention retaliation. Carnes Decl., Ex. A, ECF 125-1. Dr. Glick's report describes as a general matter that “women who confront discrimination face backlash [and] retaliation,” but the report does not specifically state that defendants took any retaliatory action against plaintiff for complaining about gender discrimination. Glick Decl., Ex. A at 40, 73-79, ECF 126-1.
The timing between plaintiff's complaints and the adverse actions alone is not sufficient to create a genuine dispute of material facts regarding pretext. Huck v. Kone, Inc., 539 Fed.Appx. 754 (9th Cir. 2013) (citing Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 2013); Green v. City & Cnty. of San Francisco, No. 17-CV-00607-TSH, 2021 WL 3810243, at *58 (N.D. Cal. Aug. 26, 2021) (“[M]ere temporal proximity is generally insufficient to show pretext.”) (citation omitted); Williams v. Fed. Express Corp., 211 F.Supp.2d 1257, 1266 (D. Or. 2002) (granting summary judgment in employer's favor where “nothing more than proximity in time” supported pretext). Because plaintiff has not produced evidence sufficient to raise a question of fact as to pretext, defendant is entitled to summary judgment as to plaintiff's claims for retaliation under section 1983, Title VII, Title IX, and O.R.S. 659A.030.
V. Hostile Environment Based on Gender and Race
Plaintiff's section 1983, Title VII, Title IX, and O.R.S. 659A.030 claims allege that defendants subjected plaintiff to “a hostile work environment because of her sex and race, by investigating her in bad faith because of her sex and race and by failing to take reasonable steps to stop the harassing, unwarranted and stereotypical treatment” against her. Sec. Am. Compl. ¶¶ 46, 58, 62, 65, ECF 11. Because, as explained above, plaintiff has not produced sufficient evidence of disparate treatment based on the combination of her gender and race, the hostile environment analysis focuses solely on her claims regarding gender.
A hostile work environment exists “[w]hen the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Payne v.Apollo Coll.-Portland, Inc., 327 F.Supp.2d 1237, 1244 (D. Or. 2004) (citing Harris v. ForkliftSystems, Inc., 510 U.S. 17, 21 (1993) (internal quotation marks omitted). For a hostile work environment claim, plaintiff must show that (1) she was subjected to verbal or physical conduct based on her gender; (2) the conduct was unwelcome; and (3) the conduct was severe or pervasive enough to alter the conditions of her employment. Pavon v. Swift Transp. Co., Inc., 192 F.3d 902, 908 (9th Cir. 1999); O.A.R. 839-005-0030(1)(b); Tsur v. Intel Corp., No. 3:21-CV-655-SI, 2021 WL 4721057, at *10 (D. Or. Oct. 8, 2021) (“Oregon courts require the same showing for hostile work environment claims brought under Oregon Revised Statutes § 659A.030.”) (citing H. K. v. Spine Surgery Ctr. of Eugene, LLC, 305 Or.App. 606, 611 (Or. App. 2020)).
“Harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex,” it can also be motivated by a “general hostility to the presence of women in the workplace.” Cilione v. Techfive, LLC, No. 3:18-CV-02030-IM, 2020 WL 1932275, at *6 (D. Or. Apr. 21, 2020) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). The conduct, however, must be both “objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Kortan, 217 F.3d at 1110 (citation and internal quotation marks omitted). Whether an environment is sufficiently hostile or abusive depends on “all the circumstances,” including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Cilione, 2020 WL 1932275 at *7 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)).
A few “stray remarks” by Drs. Kaul and Henrikson over the course of several years is not sufficient to establish that the working environment was “hostile” to plaintiff on the basis of her gender. Compare Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 1212, 121718, 1225 (D. Or. 2002) (dispute whether there were “only 22 or 23” comments about “how a woman ought to behave” and more over 9 months or whether the “derogatory remarks were made daily [as] kind of an ongoing monologue” was immaterial because either situation was sufficient pervasive to suggest a hostile environment), with Kortan, 217 F.3d at 1110 (no hostile work environment where supervisor on one or two prior occasions called female employee other than plaintiff a “castrating bitch,” “madonna,” or “regina,” and referred to plaintiff several times as “Medea,” not “Artemis”).
Ellis Decl., Ex. 47, Gelow Dep. 10:11-11:19, ECF 129-47; Mays Decl. ¶¶ 3-5, ECF 124;
Similarly, evidence that a few other women may have been subject to discriminatory treatment and plaintiff's other evidence suggesting unfair treatment previously discussed at length does not establish that defendants' conduct was so severe or extreme to create a triable issue on a hostile working environment claim. See Woods v. Graphic Commc'ns, 925 F.2d 1195, 1197-98 (9th Cir. 1991) (working environment was “polluted” with discrimination where “racial jokes, cartoons, comments and other forms of hostility directed at almost every conceivable racial and ethnic group . . . were common at the plant”); Shepherd v. City of Salem, 320 F.Supp.2d 1049, 1057 (D. Or. 2004) (finding evidence that supervisor made a sexual advance toward plaintiff, and made comments generating at least 20 complaints from plaintiff, and was alleged to have ignored plaintiff's problems and prioritized problems of male employees was insufficient to raise a triable issue on hostile environment); Faragher, 524 U.S. at 788 (“We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment[.]”)
Heitman-Allen Dep. 27:1-30:2, ECF 129-48; Mays Decl. ¶ 5, ECF 124.
Defendant's motion for summary judgment regarding plaintiff's hostile work environment claims, therefore, must be granted.
VI. Whistleblower Retaliation under O.R.S. 659A.199
Plaintiff's fourth claim alleges whistleblower retaliation under Oregon law. Sec. Am. Compl. ¶¶ 55-56, ECF 11. O.R.S. 659A.199(1) prohibits retaliation against an employee “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.” This claim is analyzed the same way as plaintiff's retaliation claim under O.R.S. 659A.030, except that the potential protected activity under O.R.S. 659A.199(1) is defined more broadly to include a report about the employer's violation of any “state or federal law, rule or regulation,” and not simply illegal discrimination in the workplace. See Sherman v. Clackamas Cnty. Sheriff's Off., No. 3:21-CV-01005-HL, 2022 WL 2670148, at *11 (D. Or. June 23, 2022), report and recommendation adopted, No. 3:21-CV-01005-HL, 2022 WL 2667020 (D. Or. July 8, 2022).
Plaintiff alleges that she reported gender discrimination and “substandard medical care.” Sec. Am. Compl. ¶ 56, ECF 11. For the same reasons plaintiff's retaliation claim regarding her complaints of gender discrimination fail under O.R.S. 659A.030, they fail here. As for her complaints regarding “substandard care,” assuming that her complaints were a protected activity, defendants' actions did not discourage plaintiff from making many further complaints during her employment at OHSU. To be retaliatory, defendants' conduct must have been “reasonably likely to deter the charging party or others from engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000); Steele v. Mayoral, 231 Or.App. 603, 617 (2009) (noting that employer conduct which “did not deter plaintiff from making reports” was not retaliatory). Plaintiff asserts that, after she made her first complaint regarding patient care in March of 2015, she complained 13 other times between June of 2015 and January of 2016, another 16 times between July and December of 2016, and apparently several other times in January and February of 2017. See Torres v. Nat'l Frozen Foods Corp., No. 6:20-CV-01680-MC, 2021 WL 1740245, at *8 (D. Or. May 3, 2021) (granting summary judgment on O.R.S. 659A.199 retaliation claims where plaintiff “was not deterred from engaging in protected activities”). And similar to her retaliation claims regarding gender discrimination, there is no evidence other than temporal proximity to suggest pretext, which is not sufficient to create an issue of fact. Williams, 211 F.Supp.2d at 1266.
Brischetto Decl., Ex. E at 5-8, ECF 128-51.
Therefore, defendants are entitled to summary judgment as to plaintiff's whistleblower retaliation claims under O.R.S. 659A.199.
VII. Retaliation under O.R.S. 441.057(2)
In her third claim, plaintiff alleges that defendants violated O.R.S. 441.057(2) when they retaliated against her because she in “good faith brought forward evidence of inappropriate and substandard medical care.” Sec. Am. Compl. ¶¶ 53-54, ECF 11.
The current version of the statute, O.R.S. 441.044(2), provides that “[a] health care facility, or person acting in the interest of the facility, may not take any disciplinary or other adverse action against any employee who in good faith brings evidence of inappropriate care or any other violation of law or rules to the attention of the proper authority solely because of the employee's action[.]” Defendants assert that the statutory term “solely” imposes a higher burden of proof than the other retaliation statutes, such as O.R.S. 659A.030, which requires only that plaintiff show the retaliation was “because of” plaintiff's protected activity. Mot. Summ. J. 30-31, ECF 118. According to defendants, this higher showing means that plaintiff's claims under O.R.S. 441.044(2) cannot succeed because, among other reasons, plaintiff alleges that defendants retaliated against her for at least two reasons-i.e., that she reported substandard care, and because of her race and gender. Resp. 30-31, ECF 132.
The statute was renumbered from O.R.S. 441.057 in 2019 by the Oregon Legislative Counsel.
There is very little case law interpreting O.R.S. 441.044(2), and no case has determined that the statute imposes a higher burden of proof regarding causation. But no matter what causation standard applies, Oregon courts have applied the same framework in analyzing a retaliation claim under chapter 441 as other discrimination statutes. See Boyd v. Legacy Health, 318 Or.App. 87, 97 (2022) (using same “protected activity” analysis under retaliation claims brought under O.R.S. 695.199 and O.R.S. 441.181, which prohibits retaliation against nursing staff); McQuary v. Bel Air Convalescent Home, Inc., 69 Or.App. 107, 111 (1984) (comparing retaliation standards across several Oregon statutes); Lycette, MD v. Kaiser Foundation HealthPlan, No. 1404-05109, 2016 WL 11701236, at *4 n.3 (Or. Cir. Nov. 07, 2016) (evaluating O.R.S. 441.004 whistleblower retaliation claim in same manner as an O.R.S. 659A.199 retaliation claim and making no mention that section 441 required a more stringent showing for causation).
And so for the same reasons that plaintiff's other patient-care related retaliation claims fail under other statutes, as discussed above, they fail here as well. Plaintiff claims to have made dozens of patient care complaints during her time at OHSU, and defendants' actions, whatever their “cause,” had no effect on her willingness to do so. Defendants actions are not retaliatory because they “did not deter plaintiff from making reports” or otherwise engage in protected activity. Steele, 231 Or.App. at 617; see also Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (“[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination[.]”) (citation and internal quotation marks omitted).
VIII. Common Law Wrongful Discharge
Plaintiff's eighth and final claim alleges common law wrongful discharge in retaliation for her complaints about patient care. Sec. Am. Compl. ¶¶ 67-70, ECF 11. Defendants assert that the Oregon employment discrimination statutes at issue preclude any common law claims for wrongful discharge. Mot. Summ. J. 30-31, ECF 118. Plaintiff insists that O.R.S. 659A.199(2) is a “supplement” to common law remedies that existed before the statute was enacted. Resp. 37, ECF 130 (citing McQuary, 69 Or.App. at 110).
“Under Oregon law, the common law remedy for wrongful discharge or termination is available only in the absence of an adequate statutory remedy.” Arnoldv. Pfizer, Inc., 970 F.Supp.2d 1106, 1145 (D. Or. 2013) (citation and quotation marks omitted); Lovell v. Sky ChefsInc., No. 3:15-CV-00327-SI, 2015 WL 4488026, at *3 (D. Or. July 22, 2015) (explaining that “there is almost uniform agreement among the other judges in this district” that “if an adequate statutory remedy exists, a common law wrongful discharge claim based on the same conduct is precluded,” and collecting cases).
Plaintiff's allegations for her wrongful discharge claim are the same as those supporting her whistleblower retaliation claims under O.R.S. 659A.199, and thus her wrongful discharge claim is precluded. Torres, 2021 WL 1740245 at *6 (“[B]ecause Plaintiff's wrongful discharge claim arises from the same allegations supporting her Title VII and ORS 659A.030 and ORS 659A.199 claims, her wrongful discharge claim is precluded.”) (citing Lindsey v. ClatskaniePeople's Util. Dist., 140 F.Supp.3d 1077, 1096 (D. Or. 2015)); see also Cilione, 2019 WL 1246195 at *4 (finding that O.R.S. 659A.199 provided adequate remedy for whistleblower retaliation and thus precluded plaintiff's wrongful discharge claim).
IX. Qualified Immunity
Finally, defendants have asserted qualified immunity as a defense to plaintiff's section 1983 claims. Mot. Summ. J. 13-17, ECF 118. Qualified immunity protects government officials from civil liability if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotation marks and citation omitted). Determining whether officials are owed qualified immunity involves two inquiries, considered in no particular order: “(1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the official's conduct violated a constitutional right; and (2) if so, whether the right was clearly established in light of the specific context of the case.” Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)); see also Pearson, 555 U.S. at 242.
As explained above, plaintiff's section 1981 claims fail as a matter of law and thus are not considered here.
Having established that plaintiff has produced sufficient evidence to create a question of fact regarding her gender discrimination claim, defendants' qualified immunity is easily dispensed with. If defendants disciplined and terminated plaintiff because of her gender or because she failed to conform to gender stereotypes, there is no question that would violate her constitutional rights to equal protection. A reasonable state actor would know that taking adverse action against an employee because of her gender violates her constitutional rights. Melendez v.Morrow Cnty. Sch. Dist., No. CIV. 07-875-AC, 2009 WL 4015426, at *31 (D. Or. Nov. 19, 2009) (recognizing “[t]he law prohibiting [protected class] discrimination in employment is well established[.]”); Peoples v. Cnty. of Contra Costa, No. C 07-00051 MHP, 2008 WL 2225671, at *7 (N.D. Cal. May 28, 2008) (denying qualified immunity because “[a] reasonable officer would understand that failing to promote plaintiff on the basis of her [protected class] violates her constitutional rights.”); Lindsey v. Shalmy, 29 F.3d 1382, 1386 (9th Cir. 1994) (“Well prior to 1988 the protection afforded under the Equal Protection Clause was held to proscribe any purposeful discrimination by state actors, be it in the workplace or elsewhere, directed at an individual solely because of the individual's membership in a protected class.”).
Defendants Drs. Henrikson and Cigarroa are therefore not entitled to qualified immunity on plaintiff's section 1983 discrimination or disparate treatment claims.
RECOMMENDATIONS
Defendants' motion for summary judgment (ECF 118) regarding OHSU's status as an “arm of the state” for Eleventh Amendment immunity purposes should be granted.
Defendants' motion for summary judgment on plaintiff's section 1981 claim, and plaintiff's claims regarding “race and gender” or “race” discrimination claims under section 1983, Title VII, Title IX, and O.R.S. 659A.030 should be granted.
Defendants' motion for summary judgment on plaintiff's retaliation claims under section 1983, Title VII, Title IX, O.R.S. 659A.030, O.R.S. 659A.199, and O.R.S. 441.044 should be granted.
Defendant's motion for summary judgment on plaintiff's disparate treatment claims based on gender discrimination brought under section 1983, Title VII, Title IX, and O.R.S. 659A.030 should be denied.
Plaintiff's cross-motion for summary judgment (ECF 130) should be denied.
Plaintiff's motion to supplement record on summary judgment (ECF 139) should be granted.
Defendant's motion for leave to file a sur-reply to plaintiff's motion to supplement (ECF 146) should be denied.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Wednesday, August 24, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.