Opinion
Civil No. 02-1637-AS
April 8, 2004
OPINION AND ORDER
Plaintiff Anup Engquist filed this action in December 2002, alleging employment discrimination against her former employer, the Oregon Department of Agriculture ("ODA"). Plaintiff is a woman whose national origin is India. Defendant John Szczepanski ("Szczepanski") was the Assistant Director of the ODA during plaintiffs employment. Defendant Joseph Hyatt ("Hyatt") was the Manager of the Export Service Center ("ESC"), a subdivision of the ODA during plaintiffs employment. Defendants Szczepanski and Hyatt are being sued in their individual and official capacities.
Plaintiff worked for the ESC from December 1992 until February 2002. At the time of her termination, plaintiff was a Food Standards Specialist/Program Technician I. Plaintiff alleges that during the course of her employment, Hyatt and Szczepanski subjected plaintiff to harassment because of her race, color, sex, and national origin.
Plaintiff asserts six claims for relief in the complaint: (1) violations of Title VII of the Civil Rights Act for harassment and discrimination; (2) violations of Title VII of the Civil Rights Act for retaliation; (3) violations of the Equal Protection Clause of the Fourteenth Amendment; (4) violations of 42 U.S.C. § 1981; (5) violations of the Due Process Clause of the Fourteenth Amendment; and (6) intentional interference with contract.
Defendants seek summary judgment and argue that there is no evidence supporting plaintiff's assertions. They contend that plaintiff's termination was a business decision unrelated to discrimination. Defendants further argue that the alleged harassment was not sufficiently severe or pervasive so as to alter plaintiff's working conditions.
Oral argument was heard on April 5, 2004. For the following reasons, defendants' Motion for Summary Judgment is granted in part and denied in part.
PRELIMINARY PROCEDURAL MATTER
Defendants filed a Motion to Strike portions of plaintiff's affidavits in response to defendants' Motion for Summary Judgment. To the extent that the court considered any of the material that is the subject of defendants' Motion to Strike, it is not outcome determinative. Accordingly, defendants' Motion to Strike is denied as moot.
STANDARDS
A party is entitled to summary judgment as a matter of law if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Bahn v. NME Hosp's, Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).
The moving party carries the initial burden of proof. The party meets this burden by identifying portions of the record on file which demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the initial burden is satisfied, the burden shifts to the nonmoving party to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id.
The court must view the evidence in the light most favorable to the non-moving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Ins. Co. Of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
Deference to the non-moving party does have some limit. The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Self-serving affidavits will not establish a genuine issue of material fact if they fail to state facts based on personal knowledge or are too conclusory. Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 2001). The "mere existence of a scintilla of evidence in support of the [non-moving party's] position would be insufficient." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). Therefore, where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Ninth Circuit has reiterated that a high standard exists for granting of summary judgment in employment discrimination cases. Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir. 1996) (holding that courts should require very little evidence to survive summary judgment in a discrimination case, because the ultimate question is one that can be resolved only through a searching inquiry — one that is most appropriately conducted by the fact-finder, upon a full record) (citations omitted); see also Lam v. University of Hawaii, 40 F.3d 1551, 1563 (9th Cir. 1994) (quoting Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991)). Also, trial courts should act with caution in granting summary judgment and may deny summary judgment "in a case where there is reason to believe the better course of action would be to proceed to a full trial." Anderson, 477 U.S. at 255.
FACTUAL BACKGROUND
The following facts are derived from the parties' Concise Statements of Material Facts and accompanying affidavits. Plaintiff worked for the ODA in December 1992 until she was terminated in February 2002. Her job duties included generating business for the ESC, consulting with customers, researching import regulations, training exporters, and creating food safety training programs.
During the period of plaintiffs employment, Norma Corristan ("Corristan") was employed as the Administrator of the Laboratory Services Division at the ODA and supervised the ESC. In 1999, a managerial position at the ESC opened up. The position remained open for over a year. During the time the position was vacant, plaintiff performed some of the duties of the position along with Corristan and another employee.
Hyatt was transferred to a different division within the ODA in February 2000. Prior to his departure, Hyatt informed Corristan that he had concerns that plaintiff was working an insufficient amount of time for her position. Corristan analyzed plaintiffs work hours and concluded that Hyatt's criticisms were unfounded.
In 2001, Corristan received complaints from employees regarding Hyatt's treatment of women and minorities. Corristan ordered Hyatt to attend diversity training and either a conflict resolution or anger management class. Plaintiff complained to Corristan that Hyatt was harassing her at work by tampering with her computer and making inappropriate sexual comments. Corristan met with Hyatt and told him of plaintiff's complaints.
In July 2001, Szczepanski met with the ESC staff to discuss the vacant managerial position. The staff recommended that the new ESC Manager have at least a master's degree in a laboratory science. However, when the job announcement for the ESC Manager position was posted, the master's degree requirement was omitted from the list of qualifications. There were three applicants for the position of ESC Manager: plaintiff, Hyatt, and a female employee, Karla Sangrey ("Sangrey"). Hyatt was chosen for the position. Corristan believed that Hyatt was less qualified than plaintiff for the position. Plaintiff had two master's degrees in laboratory sciences. Hyatt had a bachelor's degree in biology. Defendants assert that Hyatt was selected because he had background work as a chemist in the ESC, and relevant management, customer service, and budgeting experience. Defendants also believed that Hyatt understood the technical needs of the department better than plaintiff. Hyatt had managed a business similar in size to the ESC and an annual budget in excess of one million dollars. During the interviews, the panel asked each candidate five of the six agreed-upon questions. The unasked question sought information about the candidates' involvement with foreign officials in improving standards and policies. Plaintiff believes she was better qualified than Hyatt regarding this issue.
Later in July 2001, Szczepanski informed Corristan that he was phasing out Corristan's responsibilities over the ESC. In September 2001, Hyatt sent Szczepanski a proposed draft letter recommending that Szczepanski consider a personnel cut in the ESC, remove plaintiff's responsibilities, and place plaintiff under Szczepanski's supervision. Shortly thereafter, Szczepanski relieved Corristan of her supervisory responsibilities over the ESC and plaintiff began reporting to Szczepanski.
Sangrey had a conversation with Hyatt in the fall of 2001. Hyatt told Sangrey that he was creating a personnel plan for the ESC and was "working on getting rid of [Corristan] and [plaintiff]." A few months later, plaintiff's position was eliminated.
In October 2001, Oregon State Governor John Kitzhaber sent an e-mail to agency directors requesting them to prepare an Administrative Cost Reduction Plan. Reductions often percent from the General Fund and Lottery Fund budgeted for 2001-03 and ten percent from the 2003-05 budget were sought. In November 2001, the ESC, which did not receive General Fund dollars, was operating at a loss. Corristan was terminated on December 11, 2001. Defendants informed Corristan that she was being terminated because of reorganization and budget cuts.
The Oregon Legislature acted on Governor Kitzhaber's proposed budget cuts in February 2002. The only two employees holding permanent positions in the ODA who were terminated due to budget cuts were Corristan and plaintiff. Plaintiff is an Asian female. Corristan is a Hispanic female.
Once Hyatt became ESC Manager, he sent an e-mail to plaintiff, notifying her that he was changing the location of her office, limiting her work to updating food regulations, and that it was no longer necessary for her to travel. By limiting plaintiff to updating food regulations, there was not enough work to justify a full-time position. Hyatt also told a co-employee that plaintiff had falsified her time records.
In November 2001, Hyatt e-mailed Szczepanski, notifying him that plaintiff did not have enough work to keep her busy. Hyatt also stated that plaintiff had not sought out any work assignments from him and suggested that plaintiff was spending her work time doing crossword puzzles. Hyatt later admitted that he had not been providing plaintiff with a lot of work because plaintiff was in the middle of moving her office and he did not want to overburden her.
On January 31, 2002, defendants informed plaintiff that her position was being eliminated due to reorganization. Plaintiffs termination was effective February 15, 2002. Szczepanski and Hyatt participated in the decision to eliminate plaintiff's position. In the termination letter, defendants stated that there could be other available positions that plaintiff could "bump" into. Under the Collective Bargaining Agreement governing plaintiff's employment relationship, plaintiff could bump another employee from his or her position and thereby retain employment. To qualify, plaintiff needed to meet the minimum qualifications for the position's classification and be able to perform the specific requirements of the position within thirty days. Collective Bargaining Agreement, Art. 70, Sec. 3(e).
The termination letter was attached to an Option Selection Sheet in which plaintiff could select which positions she would like to bump into. Four options were available to plaintiff: (1) displace a less senior person with the same job classification; (2) displace a less senior person in a classification plaintiff previously held; (3) be demoted to a less senior position in any classification; or (4) be laid off. Collective Bargaining Agreement, Art. 70, Sec. 3. Plaintiff elected to displace the ODA employee with the lowest seniority in plaintiff's current classification in a position for which she was qualified.
Under plaintiff's election, only one position in the ODA was available for plaintiff — the Grants Administrative Officer in the ODA's Natural Resources Division Soil and Water District Conservation Program. At the time, the position was held by another employee. Plaintiff elected to bump the employee. On February 8, 2002, Karin Nilsson ("Nilsson") in the Human Resources Department informed plaintiff that plaintiff possessed the general skills and abilities required for bumping into the Grants Administrator Office position. However, Nilsson concluded that plaintiff would be unable to adequately train for the duties of the job within the thirty-day orientation period.
On January 24, 2002, Hyatt e-mailed Nilsson regarding an open position for a "Sample Tracker." Hyatt told Nilsson that no ESC employee was qualified for the position because it required specialized training that only the incumbent had received. Plaintiff contends she would have been able to perform the Sample Tracker position based on previous experience. However, the Sample Tracker position was not within plaintiff's classification and plaintiff elected to be considered only for jobs in her classification. As a result, she was not considered for bumping into the Sample Tracker position.
In mid to late January 2002, Hyatt allegedly had a conversation with Sherrie Hamelund ("Hamelund"), an ODA employee, regarding the potential for future lay-offs. During the conversation, the potential termination of Janis Brown ("Brown"), a minority female employee, was discussed. According to Hamelund, Hyatt said, "I can't lay off Ms. Brown because I've already gotten rid of two minority females." Hamelund believed that Hyatt was referencing the recent terminations of Corristan and plaintiff.
On February 7, 2002, Hyatt e-mailed Nilsson and Szczepanski informing them that plaintiff planned on taking sick leave during the three days leading up to her termination date. Hyatt stated that plaintiff appeared to be abusing her sick leave. In her response e-mail, Nilsson informed Hyatt and Szczepanski that they should tell plaintiff immediately that plaintiff's intention to use sick leave was inappropriate unless there was a legitimate medical reason for her absence, accompanied by a medical note. Pursuant to plaintiffs Collective Bargaining Agreement, an employer is allowed to request certification by a doctor when sick leave is taken if the employer suspects that the employee is abusing sick leave. Collective Bargaining Agreement, Art. 56, Sec. 2. Nilsson suggested in an e-mail the following day that Hyatt and Szczepanski place plaintiff on paid administrative leave instead of sick leave for the days preceding her termination date.
Hyatt also informed Nilsson via e-mail that plaintiff was starting her own consulting company and suggested that she may be stealing client lists and using state resources to begin her business. Nilsson told Szczepanski and Hyatt to collect plaintiff's state assigned property during her paid administrative leave.
Plaintiff subsequently requested an explanation regarding why Hyatt was accusing plaintiff of abusing sick leave. Nilsson sent a letter to plaintiff, advising her that Hyatt had checked plaintiff's daily planner because he needed information on a company and knew that plaintiff recorded client information in her planner. While looking through plaintiff's planner, Hyatt noticed that plaintiff indicated that she would be using sick leave for the three days leading up to her termination date.
Plaintiff asserts that this cannot be true because plaintiff had her planner with her that day. She argues that Hyatt instead went through her desk or her computer looking for information to use against her.
On February 15, 2002, plaintiff wrote a letter to Nilsson, accusing Hyatt of racial and sexual harassment. Plaintiff identified other women and minority employees whom plaintiff believed were also harassed by Hyatt and she identified potential witnesses who could corroborate plaintiff's allegations. Nilsson did not respond to plaintiffs complaint and did not attempt to interview any of plaintiffs witnesses.
Under plaintiff's Collective Bargaining Agreement, plaintiff asserts that she could not be terminated without just cause. Plaintiff contends that she did not receive any notice of her right to a post-termination hearing.
Corristan does not believe that plaintiff's position was terminated as part of the General Fund Budget Reduction approved by the legislature in February 2002 because plaintiff's position was completely funded by other sources. Thus, eliminating plaintiff's position would not help the General Fund. On June 28, 2002, plaintiff filed a complaint against defendants with the Oregon Bureau of Labor and Industries ("BOLI"). In her BOLI complaint, plaintiff alleged that defendants subjected her to differential treatment, harassment, and that Hyatt made jokes of a sexual nature to her. Plaintiff further alleged that defendants retaliated against her for using the Oregon Family Leave Act ("OFLA"), because defendants counted OFLA time against plaintiff and used it as a reason to terminate her.
CLAIMS FOR RELIEF
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an employee on the basis of an employee's sex and ethnicity. It is unlawful for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2(a).
The plaintiff in a Title VII case bears the initial burden of presenting a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In a disparate treatment case the burden of persuasion remains with the plaintiff. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An individual is subject to disparate treatment when she is singled out or treated less favorably than others similarly situated because of her race, gender, and/or national origin. Gay v. Waiters' and Dairy Lunchmen's Union, 694 F.2d 531, 546 (9th Cir. 1982). A prima facie case can be established through direct evidence of intentional discrimination or circumstantial evidence that creates an inference that the employer's conduct was more likely than not motivated by discrimination. Nanty v. Barrows Co., 660 F.2d 1327, 1331 (9th Cir. 1981).
The elements required to establish a prima facie case are the same under Title VII, § 1983, and § 1981. See, e.g., Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 n. 1 (4th Cir. 2002) (recognizing that there is some necessary overlap of Title VII and § 1981); Sischo — Nowenjad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1112-13 (9th Cir. 1991) (holding that a plaintiff who fails to establish a prima facie case under Title VII also fails to establish a prima facie case under § 1983). After the plaintiff has presented her prima facie case, the burden of production shifts to the defendant employer to provide legitimate, nondiscriminatory reasons for the employer's conduct. McDonnell Douglas, 411 U.S. at 802.
If the employer is able to meet this burden, the burden of production returns to the plaintiff to prove that the employer's stated reasons are pretextual. Burdine, 450 U.S. at 253. Plaintiff needs to produce "very little" direct evidence to withstand a motion for summary judgment. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). On the other hand, plaintiff must make a "specific and substantial" showing of pretext when relying upon circumstantial evidence — evidence that merely tends to show pretext without establishing it conclusively. Id. at 1222 (holding that evidence is not specific and substantial when nothing beyond that produced to make out a prima facie case is presented). Plaintiff's evidence is considered below.
1. Failure to Promote
The First, Third, and Fourth Claims for Relief allege that defendants failed to promote plaintiff because of her sex and ethnicity in violation of 42 U.S.C. § 1981, 1983, and § 2000e — 2(a). To make out a claim for discrimination based on a failure to promote under the McDonnell Douglas, plaintiff must first establish her prima facie case. She must show:
(1) she is a member of a protected class; (2) she applied for a position for which she was qualified; (3) the employer rejected plaintiff; and (4) the employer continued to seek applicants from persons of plaintiffs qualifications.Id. at 802.
Plaintiff is a female of Indian descent. Plaintiff applied for the position of ESC Manager in September 2001. According to Corristan, plaintiff was qualified for the position. Defendants rejected plaintiff for the position and hired Hyatt. These facts establish a prima facie case of discrimination. Defendants argue that they had legitimate, nondiscriminatory reasons for hiring Hyatt over plaintiff: Hyatt possessed superior business management skills than plaintiff and he understood the technical needs of the laboratory better than plaintiff.
Plaintiff must therefore show that there is an issue of fact as to whether the proffered reasons are merely pretextual. Plaintiff argues that the following is circumstantial evidence showing that defendants' explanations are pretextual: (1) she was more qualified than Hyatt; (2) Szczepanski manipulated the interview panel; (3) a panelist rated plaintiff higher than Hyatt; and (4) Hyatt was not qualified for the position.
Plaintiff argues that she was more qualified for the ESC Manager position than Hyatt because she had two master's degrees in laboratory sciences, had worked in the ESC for nine years, and had experience negotiating international contracts for the ESC. Hyatt worked in the Laboratory Services Division and the Administrative Services Division before he was promoted to ESC Manager, and had only a bachelor's degree in biology.
An employer has the authority to make subjective decisions regarding candidates for promotion and the value of their credentials. Casillas v. United States Navy, 735 F.2d 338 (9th Cir. 1984) ("Title VII is not a civil code of employment criteria and it `was not intended to diminish traditional management prerogatives'") (citing Burdine, 450 U.S. at 259); see also Ward v. Westland Plastics, 651 F.2d 1266, 1270 (9th Cir. 1980) (subjective evaluation by an employer is not per se prohibited by Title VII).
Title VII prohibits employment decisions that are grounded on impermissible discriminatory criteria but it does not prohibit subjective criteria. Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1481 (9th Cir. 1987) (en banc). However, subjective practices are ready mechanisms for discrimination and courts should closely scrutinize an employer's use of subjective criteria. Jauregui v. City of Glendale, 852 F.2d 1128, 1135 (9th Cir. 1988) ("[W]here subjective evaluations are made, if the members of the selection panel could manipulate the criteria and the weighting system in order to eliminate certain candidates, then the selection process could be used for purposes of unlawful discrimination," regardless of the fact that the system was chosen prior to identifying the applicants). Id. at 1136.
Plaintiff also argues that Szczepanski manipulated the interview panel to favor Hyatt. The ESC staff recommended that the new ESC Manager have at least a master's degree in a laboratory science. Szczepanski did not follow this recommendation and posted the job's qualifications without this requirement. Moreover, the hiring panel did not ask the agreed-upon question inquiring about experiences with foreign officials and food standards. Plaintiff contends that eliminating that question benefitted Hyatt because he had no such experience and harmed plaintiff because she had substantial experience in this area. Plaintiff also notes that shortly before the hiring process, Szczepanski removed Corristan, plaintiff's supervisor, from her duties at the ESC and from the selection process. Plaintiff argues that in doing so, defendants removed a panelist who looked favorably upon plaintiffs qualifications.
Plaintiff also asserts that an independent panelist rated plaintiff better than Hyatt. There were three panelists: Szczepanski, Karla Valness ("Valness"), an ODA manager, and Professor Bob McGorin of Oregon State University. Valness was an office manager who reported to Szczepanski. Valness stated that she did not understand some of the interview questions and debated whether she had the technical background to evaluate the veracity of the interviewees' answers. In Professor McGorin's estimation, plaintiff was a better candidate for the ESC Manager position than Hyatt.
Finally, plaintiff argues that Hyatt was unqualified to be ESC Manager. The job announcement required at least one year of program/project leader experience in either developing program rules and policies, developing goals and plans, project evaluation, or monitoring a budget. Plaintiff argues that although Hyatt had experience as a Lead Worker in the ODA, the Lead Worker position did not include development of goals and plans, program evaluation, or monitoring a budget.
Construing the facts in the light most favorable to plaintiff and considering the potential for manipulation and discrimination inherent in the use of subjective evaluations, this court concludes that questions of fact exist as to whether plaintiff was subjected to unlawful disparate treatment. Accordingly, defendants' motion is denied as to this claim.
Defendants also argue that plaintiff cannot maintain a claim for promotion because she failed to raise the issue in her BOLI complaint. Before a federal court has subject matter jurisdiction over Title VII claims a plaintiff must exhaust administrative remedies by filing a complaint with the United States Equal Employment Opportunity Commission ("EEOC"). B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002). The court then has subject matter jurisdiction over all claims that fall within the scope of the EEOC investigation or an investigation that could reasonably be expected to stem from a claim. Id. at 1100. In determining whether a current claim is reasonably related to the charges in the BOLI complaint, the court considers the following: (1) the alleged basis of the discrimination; (2) the dates the alleged discriminatory acts occurred; (3) the alleged perpetrators of discrimination; and (4) the locations at which the alleged discrimination occurred. Id.
Plaintiff's BOLI complaint alleged that she was subject to differential treatment, harassment, and comments of a sexual nature on the basis of her race, sex, and/or national origin, and because she opposed discrimination at work. The alleged basis of discrimination, dates of the discriminatory acts, perpetrators, and locations of discriminations as stated in the BOLI complaint are generally the same as presented in plaintiff's failure to promote claim. The court finds the failure to promote claim is reasonably related to the claims alleged in the BOLI complaint.
2. Harassment
The first four claims for relief allege claims for harassment based on sex and/or retaliation in violation of Title VII and 42 U.S.C. § 1983. A prima facie case of harassment based on gender can be made by showing that the defendant subjected the plaintiff to a hosfile work environment. Under this theory, a plaintiff must show that she was subjected to unwelcome verbal or physical conduct of a sexual nature and that the conduct was "sufficiently severe or pervasive to alter the conditions of the [plaintiff's] employment and create an abusive working environment." Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991). The work environment must be both subjectively and objectively hosfile. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). Whether the workplace is objectively hosfile is determined from the perspective of a reasonable person with the plaintiff's fundamental characteristics. See Ellison, 924 F.2d at 879. In determining whether a work environment is hosfile, the court must look at the totality of 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." Harris, 510 U.S. at 23. Only extreme conduct will amount to a change in the terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). A hosfile work environment may also be the basis for a retaliation claim. Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000).
Plaintiff presents the following factual occurrences as evidence that defendants created a hosfile work environment: defendants limited plaintiff's work to tasks that were insufficient to justify a full-time position; Hyatt made false complaints to Human Resources that she was abusing sick leave; defendants exchanged secret e-mails regarding plaintiff; and defendants interfered with plaintiffs ability to bump into other positions. In addition, plaintiff cites to three comments of a sexual nature that Hyatt allegedly uttered. First, Hyatt made a comment that he had been engaged in the same sex since he was married. Plaintiff was not present when this comment was allegedly made. Second, Hyatt made a comment about a tattoo on the buttocks of another employee. Third, Hyatt made a comment about his prostate gland. Plaintiff was present when these comments were allegedly made.
After examining other cases in which courts have found that harassment was so severe and pervasive as to alter the terms and conditions of employment, this court finds as a matter of law that plaintiff's allegations do not rise to the requisite level of severity. See, e.g., Anderson v. Reno, 190 F.3d 930 (9th Cir. 1999) (court reversing the district court's entry of summary judgment against the plaintiff where the plaintiff averred that her supervisors made repeated sexual advances to her, gave her a cartoon depicting her naked, and regularly referred to as "the office sex goddess" and other offensive monikers); Draper v. Coeur Rochester, Inc., 147 F.3d 1104 (9th Cir. 1998) (holding that genuine issues of material fact existed as to the plaintiff's hosfile work environment claim where female employee alleged that her supervisor repeatedly told her his sexual fantasies, commented on the plaintiff's "ass" and that "it would be fun to get into [the plaintiffs] pants"); and EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989) (holding that repeated vulgarities, sexual comments, and requests for sexual favors by a hotel employee subjected female staff to severe and pervasive sexual harassment).
The court finds that the alleged conduct in this case falls short of the magnitude of severity or pervasiveness required to alter the terms and conditions of plaintiff's employment. Accordingly, defendant's motion is granted as to this claim.
3. Termination
Plaintiff alleges that defendants terminated her under the guise of a workforce reduction. To make out a prima facie case of discrimination in the context of a reduction in force, plaintiff must show: (1) she is a member of a protected class; (2) she was discharged from a job that she was qualified for; and (3) that others not in her protected class were treated more favorably. Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir. 1993). Plaintiff argues that she was qualified for the position she held and was essentially replaced by Hyatt, a Caucasian male. Plaintiff argues that the following evidence establishes that she was terminated unlawfully:
• During plaintiff's tenure, the ESC consistently generated sufficient funds to pay for its own expenses and to provide revenue to subsidize other programs.
• For the first half of 2001, under Corristan's supervision and with plaintiff's assistance, the ESC generated a profit of approximately $250,000.
• Prior to Hyatt's promotion to ESC Manager, plaintiff performed several of the duties of ESC Manager. In October 2001, Governor Kitzhaber informed the ODA to prepare for budget reductions. Shortly thereafter, Szczepanski and Hyatt began removing plaintiff's duties and reassigning them to Hyatt.
• The Oregon Legislature approved the ODA's budget reduction plan in February 2002. The only two permanent full-time employees who were terminated as part of the reduction in force were both members of protected classes.
The court finds that plaintiff has presented sufficient evidence to state a prima facie case of discrimination in her termination. To show legitimate, nondiscriminatory reasons for plaintiff's termination, defendants argue that plaintiff's position was eliminated for budgetary reasons and that plaintiffs layoff was the result of an economic crisis. Defendants claim that it was financially in their best interests to eliminate plaintiff's position.
Genuine issues of material fact exist as to whether defendants' proffered explanations are pretextual. Prior to being promoted to ESC Manager, Hyatt allegedly told Sangrey that he was working on a plan to get rid of Corristan and plaintiff. After Hyatt became ESC Manager, he allegedly told Hamelund that he could not lay off another female minority because he had already terminated two female minority employees. Hyatt allegedly reported to Human Resources that no ESC employee could fill the Sample Tracker position. Hyatt allegedly accused plaintiff of a known practice of abusing sick leave and implied that plaintiff was stealing client lists and using state resources to start her own private consulting company. Hyatt allegedly complained to Corristan that plaintiff was working insufficient hours although Corristan found Hyatt's criticisms to be unfounded. Although Nilsson admitted that plaintiff was qualified to bump into the Grants Administrator Position, she refused to allow plaintiff to do so, stating that she did not think plaintiff could adequately learn the position's duties within thirty days. According to Corristan, plaintiff's position was not cut for budgetary reasons because eliminating plaintiff's position would not have provided savings for the General Fund.
The court finds that this evidence is sufficient to create an issue of fact as to whether defendants were motivated to terminate plaintiff for discriminatory reasons. Accordingly, defendants' motion is denied as to this claim.
4. Retaliation
Plaintiff's Second Claim for Relief alleges that defendants retaliated against her for opposing unlawful employment practices in the workplace. To present a prima facie case for retaliation, plaintiff must show that: (1) she engaged in a protected activity; (2) defendants subjected her to an adverse employment action; and (3) the adverse employment action was a result of plaintiffs engagement in the protected activity. Ray, 217 F.3d at 1240. To establish the first element, the plaintiff need show only that the plaintiff had a reasonable belief that the employment practice she complained of was prohibited under Title VII. Trent v. Valley Elec. Ass'n, Inc., 41 F.3d 524, 526 (9th Cir. 1994).
In 2001, plaintiff complained to Corristan that Hyatt was tampering with her computer in an attempt to harass her and that he had made inappropriate comments of a sexual nature to her. Corristan met with Hyatt and told him of plaintiffs complaints. Corristan ordered Hyatt to attend diversity training and anger management or conflict resolution training. After plaintiff complained to Corristan, Hyatt became ESC Manager and allegedly set in motion the course of action that led to plaintiff's termination. This is sufficient evidence to present a prima facie case of retaliation.
Defendants argue that plaintiff cannot meet the first element of a prima facie showing of retaliation because she did not ground her complaints in statutory harassment. However, making an informal complaint to a supervisor, regardless of whether the employee recognizes that the alleged conduct is unlawful under Title VII, is a protected activity. See Hacienda Hotel, 881 F.2d at 1514; see also Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978) (recognizing that protected activity includes seeking conciliation or informally voicing concerns to a supervisor). Accordingly, defendants' motion is denied as to this claim.
5. Procedural Due Process
Plaintiff's Fifth Claim for Relief alleges that Hyatt and Szczepanski violated her procedural due process rights. Plaintiff asserts that defendants impaired her interest in her property right by terminating her employment and interfering with her ability to bump into another position as provided for in the Collective Bargaining Agreement. Plaintiff was not allowed to bump into the position of the Grants Administrative Officer and was not notified of the position of Sample Tracker. Plaintiff claims she was not advised of her right to a hearing to contest either the refusal to bump into these positions or her termination. See Clements v. Airport Auth. of Washoe County, 69 F.3d 321, 332-33 (9th Cir. 1995) (holding that a public employee must be given an opportunity for a hearing before she can be deprived of a constitutionally protected property interest); see also Alexander v. City of Menlo Park, 787 F.2d 1371 (9th Cir. 1986) (holding that bumping rights of employees are a constitutionally protected property interest).
To proceed on a due process claim, plaintiff must show: (1) she had a legitimate claim of entitlement to a constitutionally-protected property interest; (2) defendants impaired that property interest; and (3) she did not receive all process that was due. Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000).
Plaintiff's claim is asserted against Szczepanski and Hyatt as individuals. The record reflects that neither Szczepanski nor Hyatt was involved in plaintiff's termination process. Nilsson was in charge of plaintiffs termination procedure. Plaintiff has presented no evidence to the contrary.
The Collective Bargaining Agreement appears to provide that plaintiff could be terminated only for cause. Plaintiff received notice of her termination and the stated reasons that were due to economic downsizing. A public employer may satisfy its procedural due process requirements through a collective bargaining agreement, providing that those procedures satisfy due process. Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (`"Due process is flexible and calls for such procedural protections as the particular situation demands.'") (citation omitted).
The Collective Bargaining Agreement outlines the process due in the case of a layoff, and the process for filing grievances and seeking arbitration. Collective Bargaining Agreement, Arts. 21, 22, 70. The agreement provides that an employee shall be notified of her contractual bumping rights and options and notify the employer within five calendar days of the option she chooses.
Plaintiff chose to bump other employees within her classification. There was only one position held by someone in plaintiffs same classification that had less seniority: the Grants Administrative Officer position. The Sample Tracker position was not within plaintiff's classification. Although Nilsson determined that plaintiff met the minimum qualifications for the Grants Administrative Officer position, Nilsson concluded that plaintiff could not adequately perform the job within the requisite thirty days due to necessary background experience that plaintiff did not have. This result was not improper. There is nothing in the agreement that provides that defendants must offer plaintiff a different bumping option or to open up other positions once plaintiff has made her election.
Plaintiff also asserts that she was deprived of due process because she did not know she had a right to a hearing regarding either her termination or the denial of her bumping rights. This argument is unpersuasive. Plaintiff acknowledged that she received the Collective Bargaining Agreement and had read and understood it. Even if plaintiff was unaware of her rights, she should have known of them as they were set forth in the agreement. See Beckwith v. County of Clark, 827 F.2d 595, 598 (9th Cir. 1987) (holding that the notice required by due process can be actual or constructive).
Plaintiff has failed to meet her burden of showing the existence of a genuine issue of material fact. Accordingly, defendants' motion is granted as to this claim.
6. Substantive Due Process
When an employee is deprived of her employment through government conduct, the employee may sue for interference with contractual relationships and/or a violation of substantive due process for impairing the employee's property interest. Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir. 1987) (citing Greene v. McElroy, 360 U.S. 474, 493 n. 22 (1959)). To establish a violation of substantive due process in connection with a decision to terminate employment, plaintiff must show that defendants impaired her constitutionally protected property interest for reasons that were clearly arbitrary and unreasonable. Fed. Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 474 (9th Cir. 1991).
Viewing the facts in the light most favorable to plaintiff, the court finds that the following evidence raises issues of fact as to whether defendants violated plaintiff's substantive due process rights: Hyatt was allegedly working on a plan to remove Corristan and plaintiff based on their race, gender, and/or national origin; Hyatt allegedly retaliated against plaintiff for complaining of harassment to Corristan; there is no evidence that plaintiff performed her job poorly; and plaintiff's position was funded from sources other than from the General Fund. A reasonable finder of fact could conclude that Hyatt and Szczepanski impaired plaintiff's interest in continued employment for arbitrary and unreasonable purposes. Accordingly, defendants' motion is denied as to this claim.
7. Section 1983
Plaintiff's Third (equal protection) and Fifth (due process) Claims for Relief allege that Hyatt and Szcepanski acted intentionally under the color of state law to deprive plaintiff of her constitutional rights in violation of § 1983. Section 1983 provides, in pertinent part, that "(e)very person who, under color of any statute of any state. . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . ." An individual "subjects" another to the deprivation of a constitutional right if he does an affirmative act, participates in another's affirmative acts, or fails to perform an act which he is legally required to do that causes the alleged constitutional deprivation. See Gilbrook v. City of Westminster, 177 F.3d 839, 854 (9th Cir. 1999). Personal participation is not the only basis for section 1983 liability; anyone who "causes" an individual to be subjected to a constitutional deprivation is also liable. This can be established by showing that an individual set in motion a series of acts by others that the actor knew or reasonably should have known would cause others to violate plaintiff's constitutional rights. Harris v. Roderick, 126 F.3d 1189, 1196 (9th Cir. 1997).
Hyatt allegedly told Sangrey that he was working on a plan to terminate Corristan and plaintiff. Hyatt allegedly suggested that Szczepanski take certain personnel actions against Corristan and plaintiff that Szczepanski implemented. Hyatt allegedly told Hamelund that he could not terminate another minority female employee because he had already gotten rid of two female minorities.
Based on the foregoing, this court finds that questions of fact exist as to whether Hyatt and Szcepanski acted intentionally to terminate plaintiff in violation of her constitutional rights. Accordingly, defendants' motion is denied as to those claims.
8. Section 1981
Plaintiffs Fourth Claim for Relief alleges that the ODA is liable under § 1981 for Hyatt and Szczepanski's conduct because plaintiff's constitutional injuries were the result of a custom, policy, or practice of the ODA. Section 1981 provides in part, "All persons . . . shall have the same right. . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . . ." The Civil Rights Act of 1991 amended § 1981 to include "The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c).
In Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36 (1989), the Supreme Court declined to allow the plaintiff to bring §§ 1981 and 1983 actions against the school district and principal, two years prior to the amendment of § 1981, holding "that the express `action at law' provided by § 1983 for the `deprivation of any rights, privileges, or immunities secured by the Constitution and laws,' provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against the state actor." (quoting § 1983). The Court also held that plaintiffs suing municipalities must establish that their injury was caused by the municipality's official custom or policy. Id. Defendants argue that based on Jett, plaintiff cannot bring a § 1981 action against the ODA because she also alleges claims against Hyatt and Szczepanski under § 1983.
The Ninth Circuit attempted to answer the question of whether the amendment to § 1981 overturned Jett in Federation of African American Contractors v. City of Oakland, 96 F.3d 1204 (9th Cir. 1996). The Ninth Circuit concluded that the amended § 1981 contains an implied cause of action against state actors. Id. at 1214. The court reasoned that after looking at the text of the statute, the legislative history, and the legislative scheme of which § 1981 was a part, the amendment intended to authorize a private cause of action against municipalities. Specifically, the legislative history evidenced an intent to provide parallel protections against state actors and private actors, and that implying a direct cause of action against state actors under § 1981 is consistent with this intent. Id. at 1211-13. The court held that the amendment to § 1981 preserved Jett's requirement that the plaintiff plead and prove that the violation of § 1981 was caused by a custom or policy of the state actor. Id. at 1215.
Defendants argue that Federation is inapposite to the facts of this case because Federation involved a suit against a city and not a state governmental agency, and that under Jett, § 1983 provides the exclusive federal damages remedy for claims against a state actor. Defendants invite the court to draw a distinction between suits against a city and suits against a state governmental agency. Neither the amended § 1981, nor Jett, nor Federation provide for such a distinction. Moreover, in determining that the court's interpretation of the amended § 1981 was consistent with the underlying purposes of the overall legislative scheme, the court in Federation stated, "Allowing plaintiffs to bring suits against municipalities directly under § 1981 to enforce § 1981 rights instead of under § 1983 imposes no substantive change on federal civil rights law." Id. at 1214. Similarly, this court concludes that allowing a plaintiff to bring a suit against a state governmental agency directly under § 1981 to enforce § 1981 rights in the same fashion as a plaintiff who brings a suit against a city "imposes no substantive change on federal civil rights law." Thus, the court finds that Federation applies equally to suits against a city and suits against a state governmental agency.
Defendants also argue that even if plaintiff is able to proceed on a § 1981 claim, she may do so only on the basis of race. This court agrees. It is well-established that § 1981 was created to prohibit all private racial discrimination. See, eg., Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437 (1968). Although a plaintiff may plead other bases for discrimination, only allegations of racial discrimination will survive under § 1981. Jones v. Bechtel, 788 F.2d 571, 574 (9th Cir. 1986).
Accordingly, this court concludes that defendants' motion is granted as to the grounds plaintiff presents to support this claim, except the ground of racial discrimination.
9. Intentional Interference with Contract
Plaintiff's Sixth Claim for Relief avers that Szczepanski and Hyatt interfered intentionally with plaintiff's employment contract. In order to state a claim for intentional interference with contract, plaintiff must show that: (1) a contract existed; (2) intentional interference with the contract; (3) by a third party; (4) accomplished through inappropriate means or for an inappropriate purpose; (5) a causal effect between the interference and damage to the contractual relationship; and (6) damages. Volm v. Legacy Health Sys., 237 F. Supp.2d 1166, 1176 (D. Or. 2002) (citing McGanty v. Staudenraus, 901 P.2d 841, 844 (Or. 1995)).
The parties dispute whether Szczepanski and Hyatt were third parties. When it is alleged that another employee interfered with a plaintiff's contract, whether that employee is a third party turns on whether that employee was acting within the scope of his or her duties. McGanty, 901 P.2d at 845-46. This analysis is guided by the doctrine of respondeat superior, which provides that an employer is liable for the torts of an employee when the employee acts within the scope of his or her employment. Chesterman v. Barman, 753 P.2d 404, 406 (Or. 1988). An employee acts outside the scope if the employee's actions are motivated without any purpose to serve the employer. Vinsonhaler v. Quantum Residential Corp., 73 P.3d 930, 932-33 (Or.App. 2003); see also Huston v. Tram-Mark Serv.'s, 609 P.2d 848 (Or.App. 1980) (supervisor acted with an improper motive when he induced the employer to terminate plaintiff for retaliatory purposes); Clackamas Fire Prot. Dist. No. 1 v. Oregon Bureau of Labor and Indus., 624 P.2d 141, 151 (Or.App. 1981) (acts of discrimination are not within the scope of employment).
For the reasons provided in other sections of this opinion, the court finds that plaintiff has offered evidence sufficient to raise questions of fact as to whether Szczepanski and Hyatt developed and implemented a plan to terminate plaintiff because of her race, gender, and/or national origin. Accordingly, it is for a finder of fact to determine whether Szczepanski and Hyatt acted outside the scope of their employment and interfered intentionally with plaintiffs contractual relationship.
Defendants further argue that Szczepanski should not be maintained in this action as an individual party. The court disagrees. As described above, plaintiff has presented evidence sufficient to create triable questions of fact as to whether Szczepanski discriminated against plaintiff in the promotion process and intentionally interfered with plaintiffs contractual rights. Thus, defendants' motion is denied as to this claim.
Alternatively, defendants argue that Szczepanski and Hyatt are entitled to discretionary immunity. Because questions of fact exist as to whether Szczepanski and Hyatt acted outside the scope of their employment, the defense of immunity is not dispositive and defendants' motion is denied as to this claim. CONCLUSION
Plaintiff's First Claim for Relief alleges that the ODA violated Title VII and asserts four grounds. For the reasons provided above, defendants' motion is granted on the harassment grounds. Plaintiff's First Claim for Relief survives as it pertains to grounds for failure to promote, denial of bumping rights, and termination for race, gender, and/or national origin. Plaintiff's Third Claim for Relief alleges that Szczepanski and Hyatt violated plaintiff's Equal Protection rights and asserts four grounds. For the reasons provided above, defendants' motion is granted on the harassment grounds. Plaintiffs Third Claim for Relief survives as it pertains to grounds for failure to promote, denial of bumping rights, and termination for race, gender, and/or national origin. Plaintiff's Fourth Claim for Relief alleges that the ODA is liable under § 1981 on the grounds of race and gender discrimination. For the reasons provided above, defendants' motion is granted on the gender discrimination ground. Plaintiff's Fourth Claim for Relief survives, but only as it to pertains to the ground of racial discrimination. Plaintiffs Fifth Claim for Relief alleges that Hyatt and Szczepanski violated plaintiff's substantive and procedural due process rights. For the reasons provided above, defendants' motion is granted insofar as it pertains to procedural due process. Plaintiffs Fifth Claim for Relief survives as it pertains to violations of substantive due process. The remainder of defendants' Motion for Summary Judgment is denied.