Opinion
Case No. 03-434-KI.
August 17, 2004
Tom Steenson, Zan Tewksbury, Beth Creighton, Steenson, Schumann, Tewksbury, Creighton Rose, P.C., Portland, Oregon, Attorneys for Plaintiff.
Edward S. McGlone III, Clackamas County Counsel Oregon City, Oregon, Attorney for Defendants.
OPINION
Plaintiff Gloria Muzquiz brings an action against Clackamas County and several individuals arising out of her employment with the County's Office for Children and Families and her termination. Before the court are cross motions for summary judgment and several motions to strike and motions for sanctions.
FACTS
Plaintiff Gloria Muzquiz is of Mexican descent. She was raised in California with the exception of two years when she lived in Mexico.
Plaintiff began employment with the Clackamas County Office of Children and Families ("OCF") as program planner in October 1997, and continued in that position until her termination on November 15, 2001. Defendant Rodney Cook, a person of color, was plaintiff's supervisor at OCF. When Cook hired her, he recommended that she be placed at step 2 of her pay range because she was bilingual and biliterate in English and Spanish.
By mid-1998, and under the direction of Cook, plaintiff was asked to promote the idea, undertake the lead responsibility for planning and fund acquisition, and be the main contact person for the County in assisting the Hispanic Interagency Networking Team's investigation and study of service access and services for the Hispanic population of Clackamas County. The investigation culminated in a report ("the HINT report") released in July 1999. The long-range goal of the project was "achieving service equity [by] improving the quantity, quality and nature of services offered to the under-served Hispanic population until reaching a state of parity in access with that of the mainstream population." The report found the County had substantial deficiencies in providing services to Hispanics on an equitable basis with that of the mainstream population.
Plaintiff contends that her work on the project and ultimately the report itself became very controversial both within and outside of the County. Plaintiff contends that shortly after the report was released, County Administrator Steven Rhodes was rude and hostile to plaintiff and a co-worker, even slapping the report down on the table in front of them.
Cook testified that he was concerned about plaintiff's activities related to the HINT report and feared that OCF would be perceived as "doing Hispanic issues." Plaintiff also alleges that there was even controversy about who would be entitled to attend a retreat concerning the report, and some Hispanic County employees had trouble getting permission to attend.
In April 1999, defendant Cook conducted a performance appraisal of plaintiff in which she received a "does not meet standards" rating in the area of contract monitoring. Despite that single negative rating, plaintiff received a step increase. County policy requires a work plan to be developed any time a negative rating is received in a performance appraisal. A work plan was produced for plaintiff in September 1999 and finalized in November 1999.
In September 1999, plaintiff complained that a co-worker Tom Barrett had used the term "snot nosed kids" in an agenda which was handed out at a contractors meeting. Barrett is not of Mexican descent or Hispanic. There is no evidence that the County disciplined him.
Also at some point in 1999, plaintiff discovered a set of notes dated July 2, 1999, which had been prepared by Barrett in reference to the HINT report. Plaintiff was shocked by what she believed were racial implications in the notes and complained about them to Cook. Plaintiff states that Cook responded by stating that "this is white sheet stuff," obviously referring to the type of racism engaged in by the Ku Klux Klan. Cook denies ever seeing the notes or making the "white sheet" comment. There is no evidence of any disciplinary action taken against Barrett for these comments.
Beginning in October 2000, defendant Nancy Newton became plaintiff's direct supervisor. Newton reported to Cook. Cook reported to defendant Irene Fischer-Davidson, the Director of the County's Department of Human Services. Fischer-Davidson had to approve all personnel actions. Fischer-Davidson was the ultimate decision maker for plaintiff's termination.
Plaintiff contends that Cook often referred to himself as Fischer-Davidson's "little black boy."
Plaintiff contends that Newton did not like her and referred to her as a "bitch." Plaintiff felt that Newton "micro-managed" her and unreasonably and unjustifiably interfered with her work and that Newton was harsher to her than to other employees. Plaintiff contends that Newton repeatedly falsely excused plaintiff of arriving to work late, failing to complete assignments on time or in a satisfactory manner, and not doing her job properly.
Plaintiff and co-worker Jeannette Griffin were both assigned to work on a project known as the Middle Silo RFP. The deadline for the project was missed. Newton and Cook advised Kathy Ruthruff, who was then chair of the Local Commission on Children and Families, that the deadline was missed because Muzquiz and Griffin had failed to complete their part of the RFP. On February 14, 2001, Newton informed plaintiff and Griffin that she wanted to meet with them concerning their work performance, including the Middle Silo RFP project. Griffin responded by going to Newton's office in an extreme hostile and confrontational manner.
On February 27, 2001, Griffin received reprimands for punctuality in reporting to work, meeting deadlines, control of her temper and failing to treat employees with respect. In the fall of 2001, Griffin received a single "does not meet standards" rating in her performance evaluation but an overall rating of meeting standards. The single negative rating did not keep Griffin from receiving a step increase, but Griffin was placed on a work plan to improve these areas. Griffin is not of Mexican descent or Hispanic.
During the fourteen months prior to plaintiff's termination, she received an oral reprimand, a written reprimand, a one-day suspension and a two-day suspension. The County contends plaintiff was given several other verbal reprimands, but plaintiff states that she does not recall them.
Between March 2001 and November 2001, plaintiff was continuously on a work plan. During that period of time, plaintiff received a performance evaluation that gave her an overall rating of not meeting standards. She did not get a step increase as a result of that rating. According to the County, no employee of OCF other than plaintiff has received an overall performance rating of "does not meet standards."
In the spring and summer of 2001, plaintiff and Cook discussed whether Newton was discriminating against plaintiff. Plaintiff informed Cook that she thought Newton was discriminating against her, harassing her, and targeting her because she was Hispanic. Cook referred plaintiff to Nancy Drury, the head of the County's Department of Employee Services, to make a formal complaint. He also contacted Drury and advised her of plaintiff's concerns. He later confirmed that plaintiff had spoken with Drury. Drury spoke with plaintiff and explained the process for filing a discrimination complaint with the County. Plaintiff took the complaint form but never filed a formal complaint.
Starting in late July 2001, Newton was on extended medical leave. During that leave, Cook acted as plaintiff's direct supervisor.
On November 5, 2001, plaintiff received notice of the County's intent to terminate her employment on November 15, 2001. The letter was prepared with input from Cook and Newton and approved and signed by Fischer-Davidson.
The pre-termination letter listed previous disciplinary actions including the work plans on which plaintiff had been placed. It provided that plaintiff's termination was being proposed for the following reasons:
You have not satisfactorily met the performance standards required under this continuous work plan. Specifically, you have failed to meet the requirements of the work plan in that you have not completed assignments in a timely and thorough manner, you have not been punctual in reporting to work, nor have you demonstrated that you are able to perform the duties of your position or work to the level of proficiency expected of a Program Planner.
Pl. Ex. 4.
The letter went on to discuss specific examples of plaintiff's alleged failures to complete projects in a timely manner, failures to conduct program coordination and planning activities, and failures to report to work on time.
Clackamas County had certain obligations with respect to termination of employees, as set forth in Article XI of the collective bargaining agreement:
When the employer believes there is just cause for discharge, the regular employee and the [Employees'] Association will be notified in writing at the time the action is taken that the regular employee is subject to discharge. Such notification shall state the reasons for which the regular employee is being discharged. The employer shall provide the regular employee with an opportunity to respond to the charges at an informal pre-dismissal hearing which may be recorded, with the person or persons having the authority to impose or revoke the disciplinary action.
Pl. Ex. 3.
On November 13, 2001, a pre-termination hearing was held for plaintiff with Fischer-Davidson and David Anderson, Assistant County Counsel. Plaintiff was accompanied by an Employees' Association representative, John Bailey. The hearing lasted approximately one hour and twenty minutes. Plaintiff disputed the reasons she had been given for her termination and she raised issues of discrimination. Fischer-Davidson listened to plaintiff and accepted several written documents.
After the hearing, Fischer-Davidson reviewed plaintiff's file, plaintiff's comments at the hearing and the documents plaintiff provided. Fischer-Davidson concluded that plaintiff's termination was appropriate. By letter dated November 15, 2001, Fischer-Davidson informed plaintiff of her termination, effective that date.
In mid-October 2001, Cook had received a letter from Kathy Ruthruff, chair of the Local Commission on Children and Families, that was highly critical of plaintiff's performance. The letter set forth Ruthruff's concerns regarding a perceived inability of plaintiff to get work done in a timely manner and some examples of what Ruthruff considered to be the negative consequences of plaintiff's failures with respect to specific projects, the agency's reputation, and added workload for other County employees. The letter also noted that the HINT report was an accomplishment, but expressed frustration with what Ruthruff believed to be a disproportionate amount of time plaintiff spent on Hispanic issues instead of the other job duties she was hired to perform. The letter made specific references to prior conversations between Ruthruff and Cook in which Ruthruff had allegedly expressed her concerns regarding plaintiff's job performance and her preference that plaintiff be terminated.
Fischer-Davidson had reviewed the letter before November 5. However, plaintiff was not given a copy of the Ruthruff letter prior to her termination.
Following her termination, the Employees' Association filed a grievance against the County regarding plaintiff's termination and took the unresolved grievance to binding arbitration. The hearing took five days to complete in August and September 2002. The Employees' Association and the County were represented by counsel.
A copy of the Ruthruff letter was given to plaintiff along with other discovery materials before her arbitration hearing. The letter was also marked as an exhibit which was provided to plaintiff's counsel prior to the hearing. Defendant Cook testified at the hearing on July 16, 2002. Plaintiff testified on August 30 and September 9, 2002. Plaintiff's testimony included reference to the Ruthruff letter. Plaintiff maintains, however, that she was not adequately prepared to offer any rebuttal to what Ruthruff claimed about her because she did not know about the letter until hearing Cook's testimony during arbitration.
The arbitrator made numerous findings. He found that the decision to terminate plaintiff was made by Cook and approved by Fischer-Davidson. He concluded that the County did not disclose Ruthruff's letter of October 15, 2001, or any of its contents to plaintiff before her discharge and that the letter weighed heavily in her discharge. The arbitrator further concluded that the failure to notify plaintiff of the Ruthruff allegations denied her due process because she did not know about the letter prior to her termination and thus was not able to answer the allegations contained therein during the pre-termination hearing. The arbitrator further concluded that the County misled plaintiff when it informed her that she was being terminated for the reasons set forth in the November 5, 2001, letter. The arbitrator appeared to have relied heavily on defendant Cook's testimony at the arbitration that plaintiff lost her job because of the letter. He found, "[i]n sum, the pre-termination hearing failed to meet its specific obligations with regard to notice and hearing under Article XI [of the collective bargaining agreement] and its more general obligations with regard to due process[.] I therefore find that grievant was discharged without just cause." Pl. Ex. 11 at 49.
As a result of the arbitration, plaintiff was awarded backpay from the date of termination until the middle of arbitration. Plaintiff was not reinstated by the arbitrator, however.
Plaintiff filed a tort claim notice with Clackamas County on August 1, 2002. Plaintiff filed an EEOC complaint on September 5, 2002. The notice of charge sent to Clackamas County by the EEOC marked "national origin" as the basis for plaintiff's discrimination claim.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 528 U.S. 375 (1999).
DISCUSSION
I. Cross Motions for Summary Judgment
A. Section 1983 Claim Based on Procedural Due Process
Plaintiff brings a section 1983 claim alleging a violation of her Fourteenth Amendment right to procedural due process. She argues that by failing to give her the Ruthruff letter prior to her termination, which she contends was the cause of her termination, defendants denied her due process. She raises two major arguments in support of this claim: 1) the arbitrator's decision that she was denied due process should be given a preclusive effect in this litigation, and 2) even if it is not, as a matter of law, she was denied due process. Defendants argue the arbitrator's decision should not be given a preclusive effect and plaintiff was given all the process she was due. The parties have filed cross motions for summary judgment on this claim, each asking for a ruling as a matter of law.
1. Issue Preclusion
The doctrine of issue preclusion, also known as collateral estoppel, prevents relitigation of issues actually litigated and necessarily decided in a prior proceeding, after a full and fair opportunity for litigation. Shaw v. Hahn, 56 F.3d 1128, 1131 (9th Cir.), cert. denied, 116 S. Ct. 418 (1995). The courts use several factors to determine if a party has had a full and fair chance to litigate the prior action: (1) whether there was a lack of incentive to litigate; (2) whether the prior court purported to apply the applicable legal standards; (3) whether the prior case was a "rare instance" in which the court failed to grasp a technical subject matter; (4) whether without fault of his own the party was deprived of crucial evidence or witnesses in the prior litigation; and (5) whether inconsistent judgments exist. Blonder-Tongue v. University Foundation, 402 U.S. 313, 332-33 (1971); Selectron, Inc. v. American Tel. Tel. Co., 587 F. Supp. 856, 860 (D. Or. 1987); Studiengesellschaft Kohle, mbH v. USX Corp., 675 F. Supp. 182, 186 (D. Del. 1987).
Plaintiff contends that the arbitrator's findings regarding violation of her due process rights should be given a preclusive effect in this litigation. She argues that the issue of due process was actually litigated and the arbitrator reached a final decision on it, the County had a full and fair opportunity to litigate the issue in the five-day arbitration proceeding with counsel present, and the individual defendants are in privity with the County with respect to this issue. Plaintiff relies on a Ninth Circuit case, Jackson v. Gates, 975 F.2d 648, 656 (9th Cir. 1992), which held that courts can give preclusive effect to municipal administrative hearings with sufficient judicial safeguards.
Defendants argue that arbitration proceedings are not the kind of proceedings from which findings should be given a preclusive effect. Defendants rely on a Supreme Court case, McDonald v. City of West Branch, 466 U.S. 284, 292 (U.S. 1984), in which the Court found:
It is apparent, therefore, that in a § 1983 action, an arbitration proceeding cannot provide an adequate substitute for a judicial trial. Consequently, according preclusive effect to arbitration awards in § 1983 actions would severely undermine the protection of federal rights that the statute is designed to provide. We therefore hold that in a § 1983 action, a federal court should not afford res judicata or collateral-estoppel to effect an award in an arbitration proceeding brought pursuant to the terms of a collective-bargaining agreement.
Plaintiff argues that in this case, unlike in McDonald, it is Muzquiz, not the persons alleged to have subjected her to a deprivation of a constitutional right, who seeks to use collateral estoppel. Plaintiff is correct that the Court's discussion inMcDonald made several references to the importance of effectuating the statute's intent to protect an individual's federal rights. However, numerous other aspects of the Court's analysis support applying its holding in a situation, like here, where it is the plaintiff who seeks to give a preclusive effect to an arbitration award. The Court noted that arbitrators may not have the expertise to resolve the legal questions related to section 1983 actions, and the Court noted that an arbitrator's authority is derived exclusively from the collective bargaining agreement. Id. at 290-91. On this latter point, I agree with defendants that the issue before the arbitrator was whether plaintiff was fired for just cause, as required by the arbitration agreement. While it may have been logical for the arbitrator to draw on the principals of due process in reaching his conclusion, he was not tasked with deciding an issue of constitutional law. Finally, the Court also discussed numerous reasons why arbitral factfinding is not equivalent to judicial factfinding, id. at 291, which have equal applicability in this case. For example, because of post-hearing simultaneous briefing before the arbitrator, the County did not have the opportunity to respond to plaintiff's due process arguments. I conclude that the arbitrator's decision that plaintiff was denied due process is not entitled to preclusive effect in this action.
2. Whether Plaintiff Was Denied Due Process
Plaintiff argues that although she was given a pre-termination hearing, she was not given a significant piece of evidence (the Ruthruff letter) prior to the hearing, and thus had no meaningful opportunity to respond. Defendants argue that plaintiff was given notice and a detailed letter (the letter dated November 5, 2001) setting forth all of the reasons for her termination, and she had a long pre-termination hearing where she was represented by a union agent and presented oral and written responses to the County's allegations. Defendants contend the due process clause does not require more.
A major dispute with respect to this issue is the role the Ruthruff letter actually played in plaintiff's termination. As noted above, Cook testified at the arbitration hearing that the letter was the cause of plaintiff's termination. In this litigation, in his deposition and his declaration, he now states that plaintiff was terminated for all of the reasons set forth in the pre-termination letter and that in essence the Ruthruff letter was an additional independent documentation of plaintiff's work deficiencies. Defendants contend that to the extent that the Ruthruff letter did not parallel problems noted in the pre-termination letter, any such additional reasons were not the cause of plaintiff's termination.
Plaintiff's motion to strike Cook's more recent testimony is discussed below.
A careful review of both letters shows that they are not substantially different. Many of the instances discussed in the Ruthruff letter are also mentioned in the pre-termination letter given to plaintiff on November 5, 2001. To the extent that the Ruthruff letter lists additional reasons not noted in the pre-termination letter, and to the extent that those reasons were the cause of plaintiff's termination as plaintiff contends, at this stage I will assume plaintiff's version of the facts to be true. For the reasons that follow, however, the exact weight of the Ruthruff letter does not change the outcome of the constitutional inquiry.
"The essential requirements of [a] pre-termination process are notice and an opportunity to respond." Clements v. Airport Authority if Washoe County, 69 F.3d 321 (9th Cir. 1995). Procedural due process in the public employment context requires a pre-termination hearing consisting of three elements: (1) oral or written notice to the employee of the charges against him, (2) an explanation of the employer's evidence, and (3) an opportunity to respond. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). Applying Loudermill, the Ninth Circuit has explained that pre-termination requirements are somewhat minimal:
The Supreme Court has made clear that in circumstances in which a predeprivation hearing is required by due process, it need not be elaborate. The hearing need not even approximate a trial-like proceeding; in fact, it may be very limited and still pass constitutional muster. A predeprivation hearing serves only as an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges are true and support the proposed action.Brewster v. Board of Educ. of Lynwood Unified School Dist., 149 F.3d 971, 985 (9th Cir. 1998) (internal citations and quotations omitted). Given these standards, I find it difficult to conclude that the failure to turn over a letter with largely duplicative contents, even assuming it weighed heavily in the decision to terminate an employee, constitutes a violation of due process. As another court has explained, "due process does not mandate that all evidence surrounding a charge, or even the documentary evidence in support thereof, be provided to the employee, only that such descriptive explanation be afforded as to permit the employee to identify the conduct giving rise to the dismissal thereby enabling him to make a response." Helms v. Rafter, 853 F. Supp. 897, 903 (W.D.N.C. 1994) (citing Linton v. Frederick County Bd. of County Com'rs, 964 F.2d 1436, 1440 (4th Cir. 1992) and Gniotek v. City of Philadelphia, 808 F.2d 241, 244 (3d Cir. 1986)).
Even assuming without deciding, however, that the failure to produce the Ruthruff letter to plaintiff prior to her pre-termination hearing resulted in a hearing that was less than constitutionally sound, this does not entitle plaintiff to summary judgment on her claim in light of the post-termination procedures in this case. Plaintiff concedes that in certain contexts, posttermination process can cure a pre-termination defect. See Walker v. City of Berkeley, 951 F.2d 182, 184 (9th Cir. 1991). However, plaintiff maintains that this rule does not apply to permanent termination of a public employee's job.
In Clements v. Airport Authority of Washoe County, 69 F.3d 321 (9th Cir. 1995), the Ninth Circuit contrasted pre and post-termination procedural requirements. In rejecting the employer's claim that post-termination process was sufficient, the court stated:
Despite the apparent inadequacy of the pre-termination process, the defendants urge that the numerous post-termination hearings provided Sue with all the process she was due. They are incorrect. In the context of process due a terminated public employee, a full post-deprivation hearing does not substitute for the required pre-termination hearing. Indeed, Loudermill itself reveals that posttermination administrative hearings, even if followed by judicial review, are ordinarily insufficient standing alone to satisfy procedural due process in the public employee context. Although the nature of subsequent proceedings may lessen the amount of process that the state must provide pre-termination, subsequent proceedings cannot serve to eliminate the essential requirement of a pre-termination notice and opportunity to respond.Id. at 332 (internal citations omitted, emphasis in original). In Clements, prior to the plaintiff's termination, there were only public meetings held in which board members announced that certain positions would be eliminated and others would be created but did not specify which particular individuals would be terminated. Effectively, the employee was given no pretermination hearing whatsoever. In rejecting the employer's argument that post-termination process was sufficient, it follows that the court's focus was on whether a post-termination hearing standing along could serve as a substitute for a pre-termination hearing.
Despite the alleged deficiencies in plaintiff's pre-termination hearing because of the missing Ruthruff letter, plaintiff was not denied a pre-termination hearing, nor were the defendants attempting to use the post-termination proceedings as a substitute for pre-termination procedure. I conclude that I can look to the post-termination procedures in determining whether plaintiff's constitutional rights were violated. See also Morrison v. Warren, 375 F.3d 468 (6th Cir. 2004) (considering post-termination arbitration proceedings in holding that plaintiff police officer was not denied due process).
A copy of the Ruthruff letter was given to plaintiff along with other discovery materials before her arbitration hearing. The letter was also marked as an exhibit which was provided to plaintiff's counsel prior to the hearing. Defendant Cook testified at the hearing on July 16, 2002. Plaintiff testified on August 30 and September 9, 2002. Even if plaintiff knew nothing of the letter until she heard Cook's testimony, she had several weeks to prepare and respond to the contents and allegations in the letter when she testified. Plaintiff's testimony included reference to the Ruthruff letter. I conclude that plaintiff's constitutional rights to procedural due process were not violated, and accordingly I grant defendants' motion for summary judgment and deny plaintiff's motion for summary judgment on this claim.
B. Title VII Claims
Plaintiff brings race and national origin discrimination and retaliation claims under Title VII. Defendants contend they are entitled to summary judgment on these claims because 1) the court lacks jurisdiction over the claims, and 2) even if plaintiff has met her prima facie burden, she has insufficient evidence of pretext to withstand a motion for summary judgment.
1. Jurisdiction
To establish federal subject matter jurisdiction over an employment discrimination claim, the plaintiff must have raised that claim or a claim that is "like or reasonably related" to it in an administrative action. Yamaguchi v. United States Department of the Air Force, 109 F.3d 1475, 1480 (9th Cir. 1997) (internal quotation omitted). The EEOC charge must be construed "with the utmost liberality." Id. (internal quotation omitted). The court has subject matter jurisdiction over allegations of discrimination that either "fell within the scope of the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. (internal quotation omitted, emphasis in the original).
Defendants argue that plaintiff may only bring a claim based on national origin discrimination because that was the only basis listed on plaintiff's EEOC complaint. Plaintiff was born and raised in California. Therefore, defendants contend that in order to prevail on this claim, plaintiff must prove that her termination from employment was the result of animus directed at her due to the fact that her ancestors came from Mexico, as opposed to discrimination because she is Hispanic or involved in matters of concern to the Hispanic community. Defendants contend the latter is a race-based claim, and beyond the scope of her EEOC complaint.
In her EEOC complaint, plaintiff alleged that "[t]hroughout complainant's employment with respondent, complainant was treated differently in the terms and conditions of employment, in comparison with white, non-Hispanic employees." Def's Ex. 115. Although the EEOC complaint stated that her protected class is "national origin," I conclude that the allegations she made in her EEOC charge are sufficiently connected to a "race" claim to provide this court with jurisdiction.
Defendants make a similar argument with respect to plaintiff's retaliation claim. Defendants argue that because her EEOC charge makes no specific allegations of retaliation, this court lacks jurisdiction over that claim. As with the race claim, I find this claim "can reasonably be expected to grow out of" plaintiff's broadly written charge of discrimination.
I make no rulings at this point regarding the temporal scope of plaintiff's claims.
2. Plaintiff's Discrimination Claims
A prima facie case of discrimination may be demonstrated by direct evidence of discriminatory intent or may be based on a presumption arising from factors set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Generally stated, the factors are: (1) membership in a protected class; (2) qualification for the job or satisfactory performance of the job; (3) an adverse employment decision; and (4) different treatment than those similarly situated outside of the protected class.McDonnell Douglas, 411 U.S. at 802.
The requisite degree of proof necessary to establish a prima facie case for a Title VII claim on summary judgment "is minimal and does not even need to rise to the level of a preponderance of the evidence." Wallis, 26 F.3d at 889. "The plaintiff need only offer evidence which `gives rise to an inference of unlawful discrimination.' . . . Establishment of a prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Id. (citations omitted). Once plaintiff has established a prima facie case, the burden of production shifts to the defendant to rebut the presumption of discrimination by articulating some permissible reason for the adverse action. Id. "Once the defendant fulfills this burden of production by offering a legitimate, nondiscriminatory reason for its employment decision, the . . . presumption of unlawful discrimination `simply drops out of the picture.'" Id. (citingSt. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993)).
Then the burden shifts to the plaintiff to show that the defendant's reason is a pretext for another motive which is discriminatory. Id. "When evidence to refute the defendant's legitimate explanation is totally lacking, summary judgment is appropriate even though plaintiff may have established a minimal prima facie case based on a McDonnell Douglas type presumption." Id. at 890-91. Plaintiff's own assertion of superior qualifications is insufficient without additional evidence. Blue v. Widnall, 162 F.3d 541, 546 (9th Cir. 1998). Plaintiff is not required, however to produce additional, independent evidence of discrimination at the pretext stage if the prima facie case raises a genuine issue of material fact regarding the truth of the employer's proffered reasons. Chuang v. University of California Davis, 225 F.3d 1115, 1127 (9th Cir. 2000).
Under federal standards, to avoid summary judgment, the plaintiff
must produce enough evidence to allow a reasonable factfinder to conclude either: (a) that the alleged reason for [the plaintiff's] discharge was false, or (b) that the true reason for his discharge was a discriminatory one.Nidds v. Schindler Elevator Corporation, 113 F.3d 912, 918 (9th Cir. 1996) (emphasis in original), cert. denied, 522 U.S. 950 (1997). If the plaintiff offers direct evidence of discriminatory motive, a triable issue on the actual motivation is created "even if the evidence is not substantial." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998). The plaintiff may also offer circumstantial evidence that tends to show that the proffered motive is a pretext because it is inconsistent or unbelievable. In this case, the evidence of pretext must be specific and substantial to create a triable issue on whether the employer intended to discriminate. Id. at 1222.
Defendants concede that plaintiff has met all of the elements of her prima facie case except the requirement that she show she was treated differently than other individuals outside of her protected class. I conclude plaintiff has met this minimal burden by showing that she was treated differently than Barrett and Griffin.
The burden shifts to defendants to proffer a legitimate non-discriminatory reason for plaintiff's termination. They have met this burden by submitting that plaintiff was terminated due to poor job performance.
Showing pretext is a substantially higher hurdle for plaintiff. Plaintiff's evidence includes the discipline she received that others did not receive, including the harassment by Newton; the notes and the "white sheet" remark that followed, as well as the "little black boy" comment, both of which suggest a racially charged atmosphere; and the allegations with respect to how the HINT report was received by the County and the alleged controversy plaintiff generated by being a part of it. The latter is probably plaintiff's strongest evidence that any decisions were based on animus toward plaintiff because she is Hispanic. As I noted during oral argument, I believe that in order to make it past summary judgment, one needs to draw many inferences to make the connections plaintiff contends support her claim. For example, the fact that the HINT report was not well-received may have been because the report cast the County in a negative light; just because the subject of the report related to Hispanic issues does not mean any reactions to the report were based on discriminatory animus. Although I submit that the connections are quite difficult to make, at this stage, I cannot conclude that no reasonable jury would find discrimination. Accordingly, I deny defendants' motion for summary judgment against plaintiff's discrimination claims.
3. Plaintiff's Retaliation Claim
A plaintiff can establish a prima facie of retaliation under Title VII by establishing the following factors: (1) involvement in a protected activity; (2) an adverse employment action; and (3) a causal link between the activity and the employment action. If the plaintiff establishes the prima facie case, the burden shifts as in a disparate treatment case. Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1066 (9th Cir. 2003). The causal link can be inferred from circumstantial evidence, such as the proximity in time between the protected activity and the retaliatory employment decision. Id. at 1069 (only nine days lapsed between complaint and termination). See also Clark County School District v. Breeden, 532 U.S. 268, 273-74, 121 S. Ct. 1508, (2001) (citing with approval cases holding that a three month period and a four month period were insufficient to establish causation for a prima facie case when there is no causation evidence beyond the temporal proximity).
Plaintiff's strongest evidence in support of this claim is that in July 2001, plaintiff informed Cook that she thought Newton was discriminating against her because she was Hispanic. Four months later, she was terminated. Newton and Cook were aware that plaintiff engaged in protected activity. This evidence is sufficient, considered in light of all the other evidence discussed above, to create a question of fact on this claim. I deny defendants' motion for summary judgment against plaintiff's retaliation claim.
C. State Law Claims
Plaintiff also brings discrimination claims under state law. Defendants argue her state law claims should be dismissed under the Oregon Tort Claims Act, O.R.S. 30.275, because her termination occurred more than 180 days prior to the tort claim notice.
Plaintiff's tort claim notice was dated August 1, 2002, but plaintiff argues that the court should look to the date of the actual notice pursuant to O.R.S. 30.275(3). Plaintiff contends that the County had actual notice of her claim at her pre-dismissal hearing on November 13, 2001, where County counsel was present, or at the latest, from the date of her November 30, 2001 grievance. The grievance stated that she intended to file "a harassment/discrimination complaint." I conclude this is sufficient notice under the Oregon Tort Claims Act to preserve plaintiff's claims. For the reasons discussed above regarding plaintiff's Title VII claims, issues of fact remain in dispute on the merits of the state law claims. Defendants' motion for summary judgment against plaintiff's state law claims is denied.
D. Section 1983 Claim Based on Equal Protection
Under 42 U.S.C. § 1983, a plaintiff may challenge action committed under color of state law which is a deprivation of federal constitutional or statutory rights. Section 1983 provides a remedy for violations of the Equal Protection Clause of the Fourteenth Amendment. Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1112 (9th Cir. 1991). To prove discrimination in violation of § 1983, a plaintiff must prove that the defendant acted with the intent to discriminate. A plaintiff who fails to establish intentional discrimination for purposes of Title VII also fails to establish intentional discrimination for purposes of § 1983.Id.
This claim is pleaded solely against the individual defendants. Thus, the briefing on this claim is focused on the individual defendants' qualified immunity defenses.
The required first step in a qualified immunity analysis "is to consider the materials submitted in support of, and in opposition to, summary judgment, in order to decide whether a constitutional right would be violated if all facts are viewed in favor of the party opposing summary judgment." Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir. 2001) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201.
If a constitutional violation could be made out on a favorable view of the submissions before the court, the next step is to ask whether the right was clearly established. Id. "This inquiry . . . must be undertaken in light of the specific context of the case, not as a broad general proposition. . . ." Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer his conduct was unlawful in the situation he confronted."Id.
Finally, if the law governing the state official's conduct was clearly established, the court must inquire whether "a reasonable state official [could] have believed his conduct was lawful[.]"Jeffers, 267 F.3d at 910. "Although a defendant's subjective intent is not relevant to the qualified immunity defense, his mental state is relevant where it is an element of the alleged constitutional violation."Id. at 911.
In order to prevail on an Equal Protection claim, plaintiff must show intentional discrimination. Plaintiff concedes in her deposition that Cook did not have discriminatory animus, therefore plaintiff will be unable to prevail against him on this claim regardless of qualified immunity. Defendant Cook is dismissed from this action.
With respect to the other individual defendants, because I have determined that questions of fact exist regarding their discriminatory motives, I cannot conclude that the defendants are entitled to qualified immunity. Even if it were ultimately determined that there were other additional reasons for plaintiff's termination, if the decision to terminate plaintiff was based in part on racial animus, the individuals cannot be said to have acted reasonably.
II. Motions to Strike/Motions for Sanctions
A. Plaintiff's Motions to Strike
In plaintiff's first motion, she moves to strike paragraph 17 of defendant Cook's declaration as well as paragraph 15 of defendants' response to plaintiff's concise statement of facts.
As noted above, during the arbitration proceedings, defendant Cook testified that plaintiff lost her job as a result of the Ruthruff letter. The arbitrator appeared to rely heavily upon this testimony in coming to the conclusion that plaintiff's due process rights were violated. In his deposition and declaration in this case, Cook makes arguably contradictory statements. He now says that "[t]he decision to terminate plaintiff's employment was not based on the Ruthruff letter but the performance problems identified by Nancy Newton and myself over the previous year." Cook Dec. at 4.
Plaintiff moves to strike this newer testimony as well as defendants' concise statement of fact, arguing that defendants cannot create an issue of fact by simply supplying contradictory testimony. A party cannot create an issue of fact by submitting a new affidavit contradicting the party's sworn deposition testimony. Disc Golf Ass'n, Inc. v. Champion Discs, Inc., 158 F.3d 1002, 1008 (9th Cir. 1998). Affidavits which are inconsistent with prior deposition testimony given by the affiant should be stricken if the court makes a factual determination that the contradictory matter is actually a "sham" and not the result of an honest discrepancy, a mistake, or the result of newly discovered evidence. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266-67 (9th Cir. 1991).
Defendants argue that Cook's new declaration and testimony is not a sham. In his deposition in this case he explains that he mis-spoke at the arbitration deposition. He clarifies that they had been considering plaintiff's termination for some time and the Ruthruff letter was simply one more reason to do so.
I do not believe that Cook's declaration is a sham filed just to create an issue of fact. With respect to the concise statement of facts, I will not strike the paragraph at issue, as I consider the statement of facts to be a roadmap to the evidence, not evidence in itself. It is unclear whether plaintiff is specifically requesting that I strike Cook's discovery deposition testimony on this matter. If plaintiff intended her motion to strike to relate to the deposition testimony itself, I cannot strike the deposition testimony because neither side provided it to the court. While both parties reference a portion of the Cook deposition in their briefing, the only copy of Cook's deposition in evidence goes to page 167, and based on the briefing, the relevant deposition testimony about the Ruthruff letter is contained at pages 187 to 190. In any event, the issues raised in the motion are moot because I have not relied on Cook's testimony that the letter was not the cause of plaintiff's termination, and I have assumed plaintiff's version of facts regarding the weight of the letter.
Plaintiff's second motion to strike is based on defendants' failure to submit a second concise statement of facts with their second summary judgment motion or a reply to plaintiff's statement of additional facts. Plaintiff notes that defendants submitted additional declarations and exhibits in support of their second motion but they did not file a concise statement of facts with citations to the new evidence, nor did they make specific citations to the evidence in their briefs. Plaintiff contends defendants have improperly left it up to plaintiff and the court to search through the record. Plaintiff requests that I strike all of the evidence submitted but not specifically referenced. While it is frustrating that defendants did not properly submit their evidence, I deny plaintiff's request to strike all of defendants' evidence. I also deny plaintiff's alternative request to submit additional evidence, as plaintiff has provided no basis for this request.
B. Defendants' Motion to Strike/Motion for Sanctions
Defendants move to strike plaintiff's concise statement of facts, supporting declarations, exhibits and transcripts. Defendants believe that while this is an extreme request, it is the only appropriate sanction because plaintiff "blatantly and intentionally thumbed her nose at the authority of the court and has engaged in conduct that can only be construed as intended to injure the reputation [of] defendant Newton and cause her emotional harm." Def. Mem. at 3.
Defendants are referring specifically to the declaration of Jennifer O'Roke, which makes allegations of sexual harassment by Nancy Newton. Defendants believe that in submitting O'Roke's declaration, plaintiff attempted an end-run around my prior order prohibiting this line of questioning during Newton's deposition and plaintiff ought to be sanctioned.
Plaintiff maintains that the information is relevant to the extent that it goes to show that plaintiff was disciplined and others were not. Plaintiff relies on Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995) for the proposition that evidence that other persons were likewise subjected to unlawful discrimination is both relevant and admissible to show that the plaintiff was subjected to discrimination.
I disagree with plaintiff that O'Roke's testimony is relevant. The Heyne case was a sexual harassment case, and the evidence of harassment of other individuals was also sexual harassment evidence. The Ninth Circuit noted: "It is clear that an employer's conduct tending to demonstrate hostility towards a certain group is both relevant and admissible where the employer's general hostility towards that group is the true reason behind firing an employee who is a member of that group."Heyne, 69 F.3d at 1479. The court went on to discuss several cases in which other courts have come to the same conclusion, and all of the cases involve the same kind of alleged discrimination. In other words, O'Roke's declaration might be relevant if it involved allegations that Newton discriminated against her on the basis of race or national origin, because the evidence would then go to discriminatory animus against the same protected class alleged by plaintiff.
Because I find that O'Roke's declaration and allegations have no relevance to this action, I will strike her declaration. I decline to strike the remainder of plaintiff's evidence or impose any other form of sanctions.
CONCLUSION
For the foregoing reasons, plaintiff's motion for partial summary judgment (#22) is denied and defendants' motions for summary judgment (#33, #71) are granted in part and denied in part. Plaintiff's motions to strike (#61, #79) are denied and defendants' motion to strike/motion for sanctions (#85) is granted in part and denied in part.