Opinion
Case No. 3:16-cv-02264-YY
06-25-2019
JENNIFER RIEMAN, Plaintiff, v. EVRAZ, INC., NA, a Delaware Corporation, Defendant.
OPINION AND ORDER :
Plaintiff Jennifer Rieman ("Rieman"), a former employee of defendant Evraz, Inc., NA ("Evraz"), brought this action in state court alleging gender discrimination under ORS 659A.030 and retaliation under the Oregon Family Leave Act ("OFLA"), ORS 659A.183(2). On the basis of diversity, the case was removed to federal court on December 2, 2016. Notice, ECF #1.
Plaintiff voluntarily dismissed an additional count for interference in violation of ORS 659A.183(1) on April 11, 2018. ECF #23.
Evraz has moved for an order granting summary judgment in accordance with FRCP 56(a). Mot. Summ. J., ECF #26. For the reasons discussed below, the motion for summary judgment is GRANTED.
STANDARDS
Under FRCP 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must "go beyond the pleadings" and "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (citing FRCP 56(e)).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A "scintilla of evidence" or "evidence that is merely colorable or not significantly probative" is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
The court "does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial." Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). "Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party." Addisu, 198 F.3d at 1134.
DISCUSSION
I. Undisputed Material Facts
The following material facts are relevant to the summary judgment motion and, unless otherwise noted, are undisputed:
Rieman was hired by Evraz as a sales representative on January 18, 2010, at which time she received a copy of the Evraz Employee Handbook. Joint Statement of Agreed Facts ("JSAF") ¶¶ 1-2, ECF #27. Reiman took her first OFLA leave in January 2011, after her daughter attempted suicide. Id. at ¶ 5. To accommodate late afternoon doctor appointments [Redacted] she requested to shift her work schedule one hour earlier to 7:00 a.m. to 4:00 p.m. Id. at ¶ 5. Her request was supported by her supervisor, Mike Woodard ("Woodard"), and approved by Don Hunter ("Hunter"), Evraz's Vice President of Sales. Id. at ¶¶ 3, 6; ECF # 27-1, Ex. 4. In an email exchange, Rieman thanked Woodard for his support and "nurturing spirit." ECF #27-1, Ex. 3. Following her leave, Rieman's March 2012 performance review rated her as "fully meets expectations." JSAF ¶ 7, ECF #27.
In July 2012, Rieman was in a motor vehicle accident. Id. at ¶ 8. Her request to retain her 7:00 a.m. to 4:00 p.m. work schedule so that she could attend afternoon doctor appointments was granted. Id. at ¶ 9. Between March and June 2013, Rieman requested OFLA protected leave on all or part of approximately 18 workdays for her own medical condition and [Redacted] . Decl. of Sharon Schee ("Schee Decl.") ¶ 9, ECF #29. Evraz approved her requests. Id. On March 17, 2014, Rieman's performance review again rated her as "fully meets expectations." JSAF ¶ 12, ECF #27.
While pregnant and after the birth of her son on March 2, 2015, Rieman used pregnancy disability leave from August 26, 2014, to September 15, 2014, and short-term disability leave from February 10, 2015, to August 3, 2015. Id. at ¶¶ 13, 17-18. Upon returning to the office at the expiration of her leave, Rieman continued to miss work. ECF #28-1, Ex. 8. At a meeting on October 14, 2015, Rieman was informed that her unprotected absences put her employment in jeopardy because they impacted her ability to perform her job and service her accounts. Decl. of Zachary Lucas ("Lucas Decl.") ¶ 4, ECF # 30; ECF # 28-1, Ex. 1, at 183:8-16. Rieman also received a Corrective Action Notice addressing her unprotected absences and tardiness, notifying her that "continued absenteeism or tardiness could result in further corrective action up to and including termination." ECF #27-1, Ex. 9.
After the October 14, 2015 meeting, during which she had been advised to apply for protected leave, Rieman contacted The Standard, Evraz's third-party leave administrator, to request FMLA or OFLA leave for absences between August 12, 2015, through September 28, 2015. JSAF ¶ 20, ECF #27; ECF # 28-1, at 183:20-184:2. On October 15, 2015, Rieman was found ineligible for protected leave. Id. She was ineligible for FMLA for failure satisfy the statutory 1,250 hours-worked requirement in the 12 months prior to the commencement of her leave request. The Standard also concluded that plaintiff exhausted her OFLA leave and/or her request was untimely under Evraz's 14-day reporting policy. ECF #27-1, Exs. 7-8.
While it is uncontested that Evraz concluded Rieman was not eligible for further OFLA leave, Rieman does take issue with the way her eligibility was calculated. She contends that the hours she worked before the workday or over lunch should have been but were not considered. Decl. of Jennifer Rieman ("Rieman Decl.") ¶ 7, ECF #38. As discussed below, the applicable one year statute of limitations bars any claim that Rieman was wrongfully denied OFLA leave in October 2015 and no such claim is asserted.
While investigating whether Rieman was eligible for OFLA leave, Evraz discovered that it had overpaid Rieman in July 2015 in the amount of $4,336.36. JSAF ¶ 22, ECF #27. When Rieman protested that the plan to garnish the entirety of her next two paychecks would leave her unable to support her family, Evraz agreed to instead garnish $722.67 from her next six paychecks. Id. at ¶ 23. As is noted in the Joint Statement of Agreed Facts, Rieman "consented to Evraz deducting $722.73 per pay period over six pay periods." ,Id. at ¶ 24.
On November 4, 5, and 6, 2015, Rieman reported by phone or text that she would be absent to care for [Redacted] , who was ill. Id. at ¶ 28. On November 7, 2015, Evraz deducted $722.73 from Rieman's paycheck. Id. at ¶ 29. On Monday, November 9, 2015, Rieman texted "I'm going to my doctor appointment. Then I'll call you to discuss my termination. I don't have anyone to watch [Redacted] , so I'm not able to come in." Id. at ¶ 30. Rieman was absent from work on November 10, 11, 12, and 13, 2015, and she was terminated on November 13, 2015, effective immediately. Id. at ¶¶ 31, 32. II. OFLA Leave—ORS 659A.183(2)
Oregon courts look to federal law when interpreting the OFLA. ORS 659A.186(2); see also Benz v. West Linn Paper Co., 803 F. Supp. 2d 1231, 1250 (D. Or. 2011); Yeager v. Providence Health Sys. Or., 195 Or. App. 134, 140-41 (2004). Although often styled as "retaliation" claims, allegations that a plaintiff was fired for taking leave are analyzed as claims for "interference" with FLMA or OFLA rights. Benz, 803 F. Supp. 2d at 1249.
As she is asserting a claim for "interference," Rieman does not have to satisfy the burden-shifting analysis under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and is not required to demonstrate that Evraz's allegedly legitimate reason for termination—i.e., violations of the attendance policy—was merely a pretext. Xin Liu v. Amway Corp., 347 F.3d 1125, 1135 (9th Cir. 2003) (rejecting district court's application of the McDonnell Douglas analysis to claim that FMLA leave was a factor in the termination decision); Bachelder v. Am. West Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001) (finding the McDonnell Douglas approach inapplicable to claims of interference under the FMLA). Instead, OFLA claims survive summary judgment if there is a triable issue of material fact as to whether the employee's OFLA leave request was impermissibly considered as a factor in the employee's termination. Marquez v. Glendale Union High School Dist., No. CV-16-03351-PHX-JAT, 2018 WL 4899603 at *23 (D. Ariz. Oct. 9, 2018); Mink v. Marion County Juvenile Dept., No. 08-cv-6298-AA, 2009 WL 5173513, at *7 (D. Or. Dec. 18, 2009).
Temporal proximity alone has been held inadequate to establish causation in FLMA interference cases to which McDonnell Douglas burden-shifting does not apply. Mathieson v. Yellow Book Sales and Distrib. Co., Inc., No. 07-cv-6090-AA, 2008 WL 2889398, at *7 (D. Or. July 21, 2008) (granting summary judgment on FMLA and OFLA claims where plaintiff relied entirely on the timing of his termination); Jacobson v. Hair, CV 09-09377 MMM (FMOx), 2011 WL 13112239, at *31 (C.D. Cal. Jan. 31, 2011) ("[t]emporal proximity alone . . . is not sufficient to raise triable issues of fact).
A. November 2015 Termination—Sole Adverse Event
1. One-Year Statute of Limitations
Rieman's claims, filed on November 2, 2016, have a one-year statute of limitations. ORS § 659A.875. Thus, claims arising from adverse actions taken before November 2, 2015, are barred.
This statute was amended June 11, 2019, by 2019 Oregon Laws Ch. 343 (S.B. 726), but not effective until the 91st day after the adjournment of the legislative session.
In this case, there are two actions alleged to have occurred after November 2, 2015—the $722.73 deduction from Rieman's paycheck and Rieman's termination. The parties do not dispute that OFLA leave or other events that occurred prior to November 2, 2015, but triggered an adverse action after November 2, 2015, can be considered. However, the barred actions themselves cannot give rise to liability. Satchell v. FedEx Corp., No. C 03-02659 SI, 2004 WL 2623977, at *2 (N.D. Cal. 2004) (considering time-barred acts that demonstrate traditional patterns of discrimination).
2. Reimbursement for Overpayment—Not an Adverse Event
"Among the employment actions that may constitute an adverse employment action under federal law depending on the circumstances are termination, dissemination of an unfavorable employment reference, issuance of an undeserved negative performance review, refusal to consider for promotion, exclusion from meetings, seminars and positions providing eligibility for salary increases, denial of secretarial support, a more burdensome work schedule, and a lateral transfer." Gamez-Morales v. Pac. Nw. Renal Servs., LLC, No. CV 05-546-AS, 2006 WL 2850476, at *13 (D. Or. 2006); see also Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000) (noting expansive definition of adverse employment action and citing examples, which do not include reimbursing employer for monies paid in error).
Here, the undisputed evidence is that Rieman was overpaid for work she did not perform, and the requirement that she repay those funds cannot qualify as an adverse employment action. Indeed, there is no evidence in the record that other employees were not required to repay Evraz for overpayments. It is also undisputed that Evraz worked with Rieman to devise a less burdensome repayment schedule. JSAF ¶¶ 22-24, ECF #27.
B. Lack of Material Evidence Rieman Was Terminated for Taking OFLA Leave
1. Negative Comments and Stereotypes
In support of her claim that she was terminated for taking OFLA leave, Rieman contends that she was subjected to negative comments and stereotypes related to her use of leave. Resp. 23, ECF #36. Specifically, Rieman alleges that, after [Redacted] she endured comments about [Redacted] , including statements that [Redacted] Rieman Decl. ¶ 4, ECF #38. These mean-spirited comments, based on an incident that happened nearly five years before, are neither sufficiently close in time to Rieman's November 2015 termination nor linked to her use of medical leave. Benz, 803 F. Supp. 2d at 1252; see also Holtzclaw v. Certainteed Corp., 795 F. Supp. 2d 996, 1014 (E.D. Cal. 2011) (noting that three comments to employee were insufficient to demonstrate that the employer relied on illegitimate criteria).
Rieman attempts to link these comments to her use of leave, inferring that "people appeared to be resentful of her need to take leave to care for her [Redacted] sessions." Resp. 23, ECF #36 (citing Rieman Decl. ¶ 4, ECF #38). This conclusory statement, however, is not sufficient evidence to raise a genuine issue of fact. To the contrary, the evidence shows that Rieman was granted OFLA leave at that time and on many other occasions in the years prior to her termination. Moreover, her request to shift her work schedule to accommodate [Redacted] appointments—and later her own appointments—was also granted and extended. JSAF at ¶¶ 3, 5-6, 9, ECF #27. Subsequent performance reviews in March 2012 and March 2014 rated her as "fully meets expectations." Id. at ¶¶ 7, 12. Even assuming there was resentment in early 2011, this court can find no material evidence that it was a factor in the decision to terminate Reiman's employment in 2015.
2. Alleged Misapplication of the Attendance Policy
Rieman claims Evraz's attendance policy was misapplied, supporting her claim that her OFLA-protected leave was a factor in her termination. The relevant policy provides:
3. Attendance and punctuality issues will be addressed through corrective action according to the following schedule:
a. The accumulation of two points results in a documented verbal counseling. The verbal counseling will remain in effect for one year from the date of issuance.
b. The accumulation of an additional full point, which raises the total points to two or higher and with a verbal counseling in effect will result in a written counseling. The written counseling will remain in effect for one year from the date of issuance.
c. The accumulation of an additional full point, which raises the total points to two or higher and with a written counseling in effect will result in a last-chance-agreement. The last-chance-agreement will remain in effect for one year from the date of issuance.
d. The accumulation of an additional full point, which raises the total points to two or higher and with a last-chance agreement in effect could result in termination of employment.
Prior to termination of employment, there will be a final review of an employee's attendance. This final review will be conducted by the VP/GM, area Superintendent/Director, and the Human Resources Leader. The intent of this review is to understand how our policy impacts an employee and the circumstances that led to the attendance issues, taking into account their entire work history with the Company. Following the attendance review, the Company may offer the employee one more opportunity/point before termination of employment.
ECF #27-1 Ex. 2.
4. If you demonstrate a pattern of absenteeism inconsistent with satisfactory job performance (e.g. continuously tardy, reporting off work on Mondays, Fridays, or the day after payday) you are subject to disciplinary action, regardless of whether you have accumulated enough points to trigger the disciplinary action.
5. Except for extraordinary circumstances, if you are absent without notice for two consecutive days on which you were scheduled to work, and notice should have been provided, you will be considered to have quit without notice and will not be allowed to return to work. This applies even if the consecutive shifts are separated by days off.
There is no dispute that Rieman's employment was terminated on November 13, 2015, after she missed work on eight consecutive workdays: November 4, 5, 6, 9, 10, 11, 12, and 13. JSAF ¶¶ 27-32, ECF #27. According to Evraz, Rieman was eligible for termination for abandonment on November 13, 2015, under section 5 of the attendance policy, when she failed to call in on the previous three days. ECF #37-15, at 57:15-23; Schee Decl. ¶ 6, ECF #29. Rieman disputes this account, and claims that when she called in on Monday, November 9, 2015, she left a voicemail explaining that she would be absent all week. Rieman Decl. ¶ 9, ECF #38. She alleges that Evraz chose to ignore her voicemail so that it could terminate her immediately for abandonment without providing the last-chance-agreement and the final review required under the point system set forth in section 3 of the attendance policy. Resp. 26, ECF #36; ECF #29-1, Ex. 2.
While the content of the November 9, 2015 voicemail raises an issue of fact, it is not material and cannot forestall summary judgment. Contrary to Rieman's representation, the attendance policy does not require the staged approach set out in section 3, but provides an alternative in section 4. ECF #29-1, Ex. 2. Section 4 allows Evraz to act outside the point system when it finds "a pattern of absenteeism inconsistent with satisfactory job performance." Id. Where, as here, an employee is taking consecutive, unprotected leave, Evraz need not wait for the employee's return to provide additional process.
Further, the parties agree that even if Rieman had provided notice on November 9, 2015, her subsequent leave was unprotected and unexcused under the attendance policy. JSAF ¶ 25, ECF #27 ("Lucas and Hawkins informed Rieman that continued unprotected absences 'could result in further corrective action up to and including termination.'"). Reiman was indisputably eligible for termination for excessive, unprotected leave under section 4. ECF #29-1, Ex. 2. In fact, Rieman repeatedly acknowledged that her termination was imminent. JSAF ¶ 30, ECF #27; ECF #28-1, Ex. 13. This court cannot find that her termination after eight consecutive, unprotected absences is inconsistent with Evraz's attendance policy or otherwise pretextual. Trujillo v. U.S. Postal Serv., 330 F. App'x. 137, 140 (9th Cir. 2009) (recognizing documented excessive absences as legitimate nondiscriminatory reason for termination) (cited pursuant to Ninth Circuit Rule 36-3) ; Lavin v. United Techs. Corp., No. 2:13-CV-09384-CAS, 2015 WL 847392, at *15 (C.D. Cal. Feb. 23, 2015) (finding defendants had met burden of proffering a legitimate reason for plaintiff's termination where defendants submitted admissible evidence that they terminated plaintiff's employment because he failed to comply with company's attendance requirements).
3. Comparators
Critically, plaintiff has not identified a single individual, or produced any evidence, to demonstrate that Evraz failed to enforce its attendance policies against employees who, like Rieman, had unprotected absences. See Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006) (holding, and citing cases for the principle, that comparators/comparables must be similarly situated "in all material respects"). In other words, plaintiff has offered no evidence of Evraz issuing less severe discipline for similar behavior.
The comparators in the record are not similarly situated. Amber Chambers ("Chambers")—a mother who took a nine-week maternity leave and then intermittent medical leave for 10 months, missing one day per month—is alleged to have thrived at the company under the same supervisory team. Mot. Summ. J. 24-25, ECF #26. However, Chambers took significantly less leave than Rieman, and there is no evidence that any of it was unprotected leave. Rieman also relies on Woodard, who missed 19.5 weeks in 2015 and 15 weeks in 2017, and represented in his declaration that he was never retaliated against in any way for missed time. Decl. of Michael Woodard ("Woodard Decl.") ¶¶ 8-9, ECF #33. However, Woodard also asserts that he "never had unexcused, unprotected absences," making his case easily distinguishable. Id. at ¶ 10.
4. Declaration of Crystal Lockhart Phillips
Finally, the declaration of former human resources specialist Crystal Lockhart Phillips ("Lockhart Phillips") is insufficient to forestall summary judgment. Lockhart Phillips was not involved in the decision to terminate Rieman or even employed by Evraz when Rieman was terminated. She attests that she left Evraz in October 2015, before the eight days of unprotected leave that precipitated Rieman's termination. Decl. of Crystal Lockhart Phillips ("Lockhart Phillips Decl.") ¶ 1, ECF #39. Moreover, although she advised and assisted Rieman in taking FMLA leave after an automobile accident in 2012, she alleges no basis for personal knowledge about Rieman's other protected or unprotected absences. Id. at ¶ 2.
Additionally, Lockhart Phillips does not attest to any human resources policies, about which she would have knowledge, but instead relies on how employees were "generally" treated, and admits that there were no "hard and fast rules." Id. at ¶¶ 6-7. Lockhart Phillips' vague conclusion that "not everyone was expected to make up missed hours" does not allow the court to conclude that Rieman was singled out. Id. at ¶ 6. It remains unclear whether different managers followed different policies or whether different types of leave—protected versus unprotected—carried different requirements. In fact, the only specific example provided is Chambers, who was required to take FMLA leave for appointments related to the care of her newborn daughter—a fact of which Lockhart Phillips is either unaware or intentionally omits. Id.
Lockhart Phillips also relies on her allegation that Woodard required Rieman to provide doctor's notes when others were not to support her conclusion that "[Rieman] was treated differently from others regarding her leave usage and absences." Id. at ¶¶ 3, 8. However, the only evidence in the record that Woodard required Rieman to provide a doctor's note—some four years before her termination—was in connection with the shift of her work hours to 7 a.m. to 4 p.m. to accommodate medical appointments. ECF #37-6, at 3 (noting that doctor's notes for December 2012 appointments would be forthcoming).
To the contrary, the record contains significant evidence of Woodard's support for Rieman. For example, she thanked him for his "nurturing spirit," in an email exchange in which he urges her to take care of her family. ECF #28-1, at 97; see also ECF #37-6 (evidencing Woodard's efforts to retain Rieman's requested 7 a.m. to 4 p.m. work schedule).
Lockhart Phillips' declaration fails to raise a triable issue of material fact as to whether Rieman's use of protected leave under OFLA was impermissibly considered as a factor in her termination. Rieman is obliged to come forth with more than speculation in order to raise a question of material fact. See Hunt-Wesson Foods, Inc. v. Ragu Foods, Inc., 627 F.2d 919, 928 (9th Cir. 1980). III. Gender Discrimination—ORS 659A.030
ORS 659A.030(1)(a) states that an employer may not "refuse to hire or employ the individual or to bar or discharge the individual from employment[,]" on the basis of an individual's sex. The analysis for discrimination under ORS 659A.030 requires application of the McDonnell Douglas burden-shifting framework. Snead v. Metropolitan Property & Cas. Ins. Co., 237 F.3d 1080 (9th Cir. 2001) (applying federal procedural law, the McDonnell Douglas burden-shifting analysis, rather than Oregon's rule that employee was required only to adduce prima facie case of discrimination to defeat employer's motion for summary judgment); Dawson v. Entek Int'l, 630 F.3d 928, 934-35 (9th Cir. 2011) (finding Snead controls and dictates application of the burden-shifting framework); see also Tornabene v. Nw. Permanente, P.C., 156 F. Supp. 3d 1234, 1242 (D. Or. 2015); Sereno-Morales v. Cascade Food Inc., 819 F. Supp. 2d 1148, 1151 (D. Or. 2011); Pullom v. U.S. Bakery, 477 F. Supp. 2d 1093, 1100 (D. Or. 2007); Aldridge v. Yamhill County, No. CV. 05-1257-PK, 2006 WL 1788178, at *5 (D. Or. 2006). Rieman agrees that "[i]t is true that, as a federal procedural rule, the burden shifting analysis derived from McDonell Douglas is applicable to this federal action." Resp. 30, ECF #36.
While Rieman agrees that the McDonnell Douglas burden-shifting analysis is applicable, she urges the court to consider whether her gender was a "substantial factor" in her termination. Resp. 30, ECF #36. This court can find no such evidence. --------
This framework has three steps. First, the employee or former employee must establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. A plaintiff establishes a prima facie case of discrimination by showing that: (1) he or she belongs to a protected class; (2) he or she was qualified for his or her position or was performing according to his or her employer's legitimate expectations; (3) he or she suffered an adverse employment action; and (4) similarly situated individuals outside of the protected class were treated more favorably. Id.; Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). If the employee successfully does so, then the employer must articulate a legitimate, nondiscriminatory reason for the challenged action. McDonnell Douglas, 411 U.S. at 802. If the employer satisfies this burden, the employee must then show that this reason is pretextual. Id. at 804.
Rieman cannot satisfy the second and fourth elements of a prima facie case. With respect to the second element, it is undisputed that Rieman was not living up to Evraz's legitimate expectations. See Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1031 (9th Cir. 2006) (requiring evidence that plaintiff "adequately" performed his or her job); Pullom, 477 F. Supp. 2d at 1102 (finding discipline, including counseling and two written notices for attendance- related problems, was evidence that plaintiff was not meeting legitimate expectations); Tornabene, 156 F. Supp. 3d at 1243 (requiring showing that performance was satisfactory at the time of the adverse employment action). As Rieman acknowledges, she was repeatedly counselled about tardiness and absenteeism. JSAF ¶ 25, ECF #27; ECF # 27-1, Ex. 9; ECF #41, Ex. 23; ECF # 28-1, Ex. 1, at 183:8-24, 190:11-16. Internal communication months before her termination show that while she was performing adequately when in the office, her unprotected absences were interfering with business. ECF # 37-8, at 2-3; Lucas Decl. ¶9, ECF # 30; ECF # 28-1, Ex. 18, at 203:4-18; Woodard Decl. ¶¶ 3, 5, ECF # 33. Moreover, Rieman knew, and relayed to others, that she was on the verge of termination for failure to meet attendance requirements. ECF # 28-1, Ex. 1, at 196:7-21, 227:15-25, Ex. 12, Ex. 13, and Ex. 15.
Rieman also has failed to present evidence that Evraz treated similarly situated male employees more favorably. Pullom, 477 F. Supp. 2d at 1102; Gillis v. Wal-Mart Stores Inc., No. 03:11-cv-01520-HZ, 2013 WL 1623925, at *9 (D. Or. Apr. 15, 2013). As discussed above, Rieman's reliance on Woodard is unavailing. While Woodard did take significant medical leave, for which he was never discriminated against or disciplined, there is no evidence he had any unprotected absences and therefore he is not a valid comparator. Because Rieman has failed to demonstrate that she is similarly situated to Woodard in all material respects, she cannot establish a prima facie case of discrimination. Moran, 447 F.3d at 755.
Even assuming she could successfully establish a prima facie case of gender discrimination, Rieman fails to establish that Evraz's proffered legitimate nondiscriminatory reason was a pretext for unlawful termination. Rieman may show pretext either (1) directly by showing that unlawful discrimination more likely than not motivated the employer, or (2) indirectly by showing that the employer's proffered explanation is unworthy of credence because it is inconsistent or otherwise not believable. Peters v. Shamrock Foods Co., 262 F. App'x. 30, 32 (9th Cir. 2007) (cited pursuant to Ninth Circuit Rule 36-3).
Rieman contends she has direct evidence that she was subjected to gender-based hostility and stereotyping. Rieman Decl. ¶ 5, ECF #38. Her evidence consists of a comment by Joe Loomis ("Loomis"), a district sales manager, that she [Redacted] and Loomis' "long leering stares" that she found unnerving. ECF #37-3, at 216:9-217:6. Loomis is not alleged to have been involved in Rieman's termination, and no date or time frame for the conduct is provided. Moreover, "'[s]tray' remarks are insufficient to establish discrimination" on summary judgment. Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990); Ritzert-Smith v. Siemens Nuclear Power Corp., No. 94-35905, 1995 WL 792068, at *2 (9th Cir. Dec. 11, 1995) (affirming summary judgment where there was no causal link between jokes relating to plaintiff's sex and an adverse event). A discriminatory remark "uttered in an ambivalent manner" and "not tied directly" to an employment decision is at best "weak circumstantial evidence of discriminatory animus" and insufficient to defeat summary judgment. Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993).
Rieman further contends that Lucas, her direct supervisor, "laughed at the comment" and "did nothing to correct Mr. Loomis or discipline him." Rieman Decl. ¶ 5, ECF #38. Lucas denies hearing any such remark. ECF #41, Ex. 20, at 68:1-15. Even assuming that Lucas participated, as Rieman contends, there is no "sufficient nexus between the alleged discriminatory remarks" and Rieman's termination. Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1180 (9th Cir. 1998); see also Nesbit, 994 F.2d at 705 (finding that superior' comment, that was not directly tied to adverse employment decision, did not support an inference of discrimination); Flores v. Von Kleist, 739 F. Supp. 2d 1236, 1257 (E.D. Cal. 2010) (granting summary judgment where plaintiff failed to establish sufficient nexus). Courts in this circuit have noted the importance of a nexus between the remarks and the alleged acts of discrimination. See Hollister v. Mrs. Gooch's Nat. Food Mkts., Inc., 919 F. Supp. 2d 1101, 1108 (D. Hawai'i 2013); Bowden v. Potter, 308 F. Supp. 2d 1108, 1122-23 (N.D. Cal. 2004) (requiring a nexus between at least one discriminatory remark and plaintiff's termination); Marques v. Bank of Am., 59 F. Supp. 2d 1005, 1019 (N.D. Cal. 1999) (noting that one factor considered by the Ninth Circuit in determining whether a remark is more than a stray remark is "whether the comment is related in time and subject matter to the decisional process"). Here, there is no nexus—there is no evidence concerning the timing of Loomis' alleged comment in relation to the decision to terminate Rieman's employment, or that Lucas had a role in the termination decision.
In sum, on this record, no reasonable trier of fact could conclude that plaintiff has established the elements essential to support her claim under ORS 659A.030. There exists no genuine issue of material fact, and Evraz's motion for summary judgment on this claim is therefore granted.
CONCLUSION
For the reasons set forth above, Evraz's Motion for Summary Judgment (ECF # 26) is GRANTED.
DATED June 25, 2019.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge