Opinion
2:20-cv-00913-HL
07-12-2023
AMELIA WITHROW, an individual, Plaintiff, v. LAMB WESTON, INC., a foreign business corporation; ELOY GERRARDO, an individual; and MICHAEL COOPER, an individual; Defendants.
SUPPLEMENTAL FINDINGS AND RECOMMENDATION
HALLMAN, UNITED STATES MAGISTRATE JUDGE:
This matter comes before the Court on remand from District Judge, the Honorable Karin Immergut, for further consideration of Defendants' Motion for Summary Judgment as to claims four and five of Plaintiff's Complaint. On remand, this Court recommends that Defendant Lamb Weston's Motion for Summary Judgment on claims four and five for state and federal retaliation be denied insofar as Plaintiff alleges that her termination was in retaliation for her October 8 grievance concerning Defendant Gerrardo's conduct. Defendant Gerrardo's Motion for Summary Judgment should be granted as to claim five.
Defendants also seek reconsideration of claim three. Defs.' Suppl. Br., ECF 56. But this Court's Findings & Recommendation related to claim three have been adopted by Judge Immergut and any objections to that adopted recommendation will have to be presented to Judge Immergut. Defendants' arguments are also unpersuasive because Plaintiff has set forth sufficient evidence that would allow a reasonable jury to find that Defendant Gerrardo's conduct was so severe or pervasive that it altered the conditions of Plaintiff's employment. F&R 23, ECF 45.
FACTUAL BACKGROUND
The following facts, and all reasonable inferences, are recited in the light most favorable to the nonmoving party. Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108, 1112 (9th Cir. 2011). For ease of reference, this Court has restated and supplemented the prior factual background.
In May 2015, Plaintiff began working for a processing plant company that was later acquired by Defendant Lamb Weston. Declaration of Michael Cooper (“Cooper Decl.”) ¶ 3, ECF 26. In November 2016, Plaintiff was promoted to receiving lead. Id. ¶ 4. As receiving lead, Plaintiff monitored and operated large industrial processing equipment and supervised personnel, which included Defendant Eloy Gerrardo (“Gerrardo”). Declaration of Rebecca Cambreleng (“Cambreleng Decl.”) Ex. A at 15-16, ECF 39. Defendant Gerrardo was already working in the receiving area as a receiving operator when Plaintiff was promoted to receiving lead. Declaration of Bruno J. Jagelski (“Jagelski Decl.”) Ex. 1, ECF 23.
From day one of Plaintiff becoming a receiving lead, Defendant Gerrardo and Plaintiff had conflict with each other. Jagelski Decl. Ex. 2; Amelia Withrow Deposition (“Withrow Depo.”) 18:15-16, ECF 23. While Plaintiff was Defendant Gerrardo's supervisor, Defendant Gerrardo often failed to follow Plaintiff's instructions and would refuse to work. Cambreleng Decl. Ex. A at 4-5 (73:20-22); Withrow Depo. 123:19-21, 124:2-11; Declaration of Amelia Withrow (“Withrow Decl.”) ¶ 2, ECF 40. Defendant Gerrardo's failure to listen to Plaintiff's instructions often resulted in an unsafe working environment for Plaintiff. Withrow Decl. ¶ 9. Initially, Plaintiff attempted to deal with Defendant Gerrardo's insubordination herself. Id. ¶ 4.
When declaration exhibits are deposition excerpts, the Court has included both the pincite of the exhibit and the deposition page and line number cite in parentheses.
When Defendant Gerrardo's behavior did not improve, however, Plaintiff sought assistance from her supervisors. Id. ¶ 5. In a staff meeting with supervisors in December 2017, Defendant Gerrardo stated to the group that he would not follow Plaintiff's directions. Id. ¶¶ 6-7. Plaintiff believed that Defendant Gerrardo refused to listen to Plaintiff because Defendant Gerrardo did not want to be supervised by a woman. Id. ¶ 3. In any event, following that meeting, Plaintiff's supervisors did not discipline Defendant Gerrardo or create a plan of action to resolve the conflict between Plaintiff and Defendant Gerrardo. Id. ¶ 7.
Additionally, according to Plaintiff, she experienced inappropriate attempted sexual contact from Defendant Gerrardo. Id. ¶ 9; Jagelski Decl. Ex. 2 at 28 (117:13-24). On two occasions, Defendant Gerrardo allegedly attempted to kiss Plaintiff. Withrow Decl. ¶ 9. Other times, Gerrardo apparently touched or attempted to touch Plaintiff. Id. ¶ 10. Plaintiff objected to Defendant Gerrardo's unwanted advances on all occasions. Id. Plaintiff did not report any of Defendant Gerrardo's inappropriate sexual contact while she was employed. Withrow Depo. 28:25-29:1-8.
In 2018, Plaintiff submitted a total of eight grievances to Lamb Weston's human resources (“HR”) department for assistance, which, according to Plaintiff, all went unanswered or uninvestigated. Withrow Decl. ¶¶ 14, 16, 19, 20. Defendant Michael Cooper, the HR manager, did not provide any written responses to Plaintiff's seven grievances between February 2018 and September 2018. Cambreleng Decl. Ex. B at 8 (71:14-72:9).
Plaintiff filed her first grievance in February 2018, which detailed her frustrations with Defendant Gerrardo's refusal to work or follow Plaintiff's instructions and the lack of response or assistance from any of her supervisors. Cambreleng Decl. Ex. B at 15-17. Defendant Cooper claims that he attempted to meet with Plaintiff to discuss the grievance, but Plaintiff apparently refused to meet with him. Cooper Decl. ¶ 12. Defendant Cooper did not make any written findings about this exchange, however, and Plaintiff states that she never received a response from the HR department regarding her February grievance. Withrow Decl. ¶¶ 14-15.
In July 2018, Plaintiff's supervisors changed, and she became supervised by Christopher Rowe. Id. ¶ 14. Plaintiff sought help from Mr. Rowe about Defendant Gerrardo's insubordination, but Mr. Rowe did not assist Plaintiff. Id. Ultimately, Plaintiff turned to HR again and filed three more grievances in August 2018 about Defendant Gerrardo's behavior and the lack of assistance from supervisors. Id. ¶ 16; Cambreleng Decl. Ex. B at 18-24.
In her August 11 grievance, she explained that Defendant Gerrardo “has been disrespectful from day [one] and does as he pleases” and that Plaintiff “cannot get any [supervisors] to do anything about it because it's turned around on [her].” Cambreleng Decl. Ex. B at 18. According to Plaintiff, Defendant Cooper did not approach or attempt to speak with Plaintiff after she filed her August grievances. Withrow Decl. ¶ 16.
Plaintiff filed three more grievances in September 2018: two against Defendant Gerrardo and one against Defendant Cooper. Cambreleng Decl. Ex. B at 25-28. In her grievance against Defendant Cooper, Plaintiff reported that she had never been contacted by HR about any of her earlier grievances, and she wanted her concerns “[t]o be taken seriously” and appropriately investigated. Id. at 25. In her September 9 grievance, Plaintiff reported that Defendant Gerrardo refused to answer a question that Plaintiff asked and that Defendant Gerrardo had “been allowed to question any type of authority that [Plaintiff has] as a lead.” Id. at 26.
Defendant Cooper attempted to speak with Plaintiff about the September grievances; however, when Defendant Cooper went to Plaintiff, she was ending a particularly emotional shift and was crying. Withrow Decl. ¶ 19. Plaintiff asked to speak with Defendant Cooper at another time, but Defendant Cooper never reached out to Plaintiff again. Id.
After Plaintiff filed seven grievances, Defendant Lamb Weston reprimanded Plaintiff. On September 13, Plaintiff was issued a written warning for using a “very negative and unprofessional tone on the radio” to her receiving operators. Cambreleng Decl. Ex. A at 11. The warning did not specify the specific language Plaintiff used or further describe the tone. Cooper Decl. Ex. 6, ECF 26. As a result, Plaintiff attended a coaching session on September 18 to refine her “personal interactions as well as radio etiquette.” Cambreleng Decl. Ex. B at 5 (53:5-10).
Lamb Weston has a progressive discipline policy where employees issued three or more verbal or written warnings within a 12-month period are put on unpaid suspension with a view toward discharge. Cooper Decl. Ex. 16 at 3.
On October 8, 2018, Plaintiff's conflict with Gerrardo came to a tipping point, with her hand making contact with Defendant Gerrardo's chest. Withrow Dep. 67:16-17.
Following this incident, Plaintiff filed her final grievance against Defendant Gerrardo on October 8. Cambreleng Decl. Ex. B at 29. In that grievance, Plaintiff stated that she saw Defendant Gerrardo turn the flume back on, that he “came at” Plaintiff, and that he pretended that she hit him. Id. She further reported that she felt discriminated against by Defendant Gerrardo, that he refused to listen to her because she is a white woman, and that he purposefully tried to sabotage Plaintiff. Id.
Defendant Cooper subsequently conducted an internal investigation into the incident between Plaintiff and Gerrardo and, as a result of that investigation, terminated Plaintiff for workplace violence. Cambreleng Decl., Ex. A at 13; Cooper Decl. ¶ 41.
SUPPLEMENTAL PROCEDURAL BACKGROUND
Plaintiff's fourth claim for relief alleges retaliation pursuant to 42 U.S.C. § 2000e-(3)(a) against Lamb Weston. Compl. ¶¶ 61-64, ECF 1. Her fifth claim for relief alleges retaliation pursuant to ORS 659A.030(1)(f), (g) against all Defendants, including Gerrardo and Cooper. Compl. ¶¶ 65-67. Defendants moved for summary judgment on both claims. ECF 21.
In its Findings and Recommendation, this Court erroneously concluded that the only adverse employment action at issue with respect to Plaintiff's retaliation claim was Plaintiff's termination. F&R 13 n.1, 27, ECF 45. Nevertheless, this Court recommended denial of Plaintiff's Motion for Summary Judgment because there were genuine disputes of fact as to the causal link between her alleged protected activity and her termination, and whether Defendants' legitimate reasons for firing Plaintiff were pretextual. F&R 28-30, ECF 45. Thus, this Court recommended that summary judgment be denied as to Plaintiff's federal retaliation claim against Defendant Lamb Weston and as to Plaintiff's state law retaliation claim against Defendant Gerrardo. F&R at 32, ECF 45.
This Court also recommended that the state law retaliation claim against Defendant Cooper, which was included in claim five, should be dismissed. That recommendation was adopted without discussion and is not at issue on remand.
In her Order adopting in part and declining to adopt in part the Findings and Recommendation, Judge Immergut granted summary judgment to Defendant Gerrardo on claim five, at least as it relates to Plaintiff's termination, because there was no evidence that he played any role in the decision to terminate Plaintiff. Order 5-6, ECF 52.
Judge Immergut remanded Defendants' Motion for Summary Judgment on claims four and five based on warnings against Defendants Lamb Weston and Gerrardo for further analysis under the correct adverse employment action standard. ECF 52. Judge Immergut clarified that the standard for demonstrating an “adverse employment action” for a retaliation claim differs from that of a sex discrimination claim and noted that this Court had conflated the two standards. Order 6, ECF 52. Judge Immergut therefore remanded the case for this Court to determine whether summary judgment should be granted on Plaintiff's retaliation claims against Defendants Lamb Weston and Gerrardo, which are based on the written warning and verbal coaching, as well as her termination. Order 8, ECF 52.
DISCUSSION
I. Legal Standards
ORS § 659A.030(1)(f) makes it unlawful “[f]or any person to discharge, expel or otherwise discriminate against any other person because that other person has opposed any unlawful practice.” ORS § 659A.030(1)(g) makes it unlawful “[f]or any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.” “The substantive analysis for retaliation under Title VII and ORS § 659A.030 is substantially similar, and courts analyze the claims together.” Lindsey v. Clatskanie People's Util. Dist., 140 F.Supp.3d 1077, 1086 (D. Or. 2015). To establish a prima facie case for retaliation under both state and federal law, a plaintiff must show the following: (1) the plaintiff is engaged in a protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) there is a causal link between the plaintiff's protected activity and the employer's actions. Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987); Lindsey, 140 F.Supp.3d at 1086.
A plaintiff engages in a protected activity if the plaintiff has an objectively reasonable belief that the discriminatory or harassing conduct violates Title VII. Trent v. Valley Elect. Assn., 41 F.3d 524, 526 (9th Cir. 2001). An employee's statement constitutes a protected activity if “it refers to some practice by the employer that is allegedly unlawful.” SerenoMorales v. Cascade Food Inc., 819 F.Supp.2d 1148, 1153 (D. Or. 2011) (quoting Maxwell v. Kelly Servs., 730 F.Supp.2d 1254, 1270 (D. Or. 2010) (quoting EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir. 1983)). It does not matter whether the conduct is legally cognizable; the plaintiff's activity is protected so long an objectively reasonable belief exists that the employer's conduct is unlawful. Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978). Simply put, “an employee may fail to prove an ‘unlawful employment practice' and nevertheless prevail on [her] claim of unlawful retaliation.” Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988).
In retaliation claims, actions qualify as adverse if a reasonable employee would have found them “materially adverse, which in this context means [actions that] . . . might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). In Burlington, the Supreme Court concluded that “the antiretaliation provision, unlike the [antidiscrimination] provision, is not limited to discriminatory actions that affect the terms and conditions of employment . . . .” Id. at 64; see also Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000) (holding that “an action is cognizable as an adverse employment action [in retaliation claims] if it is reasonably likely to deter employees from engaging in protected activity”).
The standard is objective: the plaintiff must show that the employer's action “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington, 548 U.S. at 68 (internal quotations omitted). “Thus, the fact that a plaintiff is not dissuaded from engaging in the protected activity is not dispositive; the objective circumstances are.” Bala v. Oregon Health & Sci. Univ., No. 3:18-CV-00850-YY, 2022 WL 17593169, at *2 (D. Or. Dec. 13, 2022) (citing see Steele v. Mayoral, 231 Or.App. 603, 617-18 (2009)).
If the plaintiff can establish a prima facie case for retaliation, then the burden shifts to the employer to present legitimate reasons for the adverse employment action. Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000). If the employer carries this burden, then the “plaintiff must demonstrate a genuine issue of material fact as to whether the reason advanced by the employer was a pretext. Only then does the case proceed beyond the summary judgment stage.” Id. (internal citation omitted).
A plaintiff may prove pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.” Texas Dept. Comm. Affairs v. Burdine, 450 U.S. 248, 256 (1981). For instance, temporal proximity between protected activity and adverse employment action, coupled with contemporaneous evidence of the employer's displeasure with the plaintiff, may serve as “strong circumstantial evidence of retaliation.” Bell v. Clackamas Cnty., 341 F.3d 858, 866 (9th Cir. 2003). Plaintiff's final “burden is hardly an onerous one: the plaintiff [who has established a prima facie case] need produce very little evidence of a discriminatory motive to raise a genuine issue of fact as to pretext.” Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997) (internal quotations omitted).
II. Plaintiff's Claims Against Lamb Weston
Defendant Lamb Weston moves for summary judgment on the grounds that Plaintiff cannot demonstrate a prima facie case for retaliation and that there is no issue of fact as to whether her termination was pretextual.
A. Plaintiff's Prima Facie Case
1. Protected Activity
Defendants contend that all Plaintiff's grievances preceding her October 8 grievance did not constitute protected activity because those earlier grievances discussed Defendant Gerrardo's inadequate job performance and not that Plaintiff was subjected to sex discrimination and harassment that violated Title VII. Defs.' Mem. in Supp. 18-20, ECF 22. Defendants do not argue that Plaintiff did not engage in protected activity when she filed her last grievance report on October 8.
Plaintiff submitted eight grievances to HR within an eight-month span and often reported her frustrations directly to supervisors. As set forth above, Plaintiff complained of Defendant Gerrardo's conduct and HR's repeated failure to intervene or assist without alleging discrimination or gender-based harassment in her first seven grievances. Those seven grievances do not constitute protected activity because they do not allege any discriminatory or harassing conduct that violates Title VII. See Trent, 41 F.3d at 526.
However, in her final grievance filed on October 8, Plaintiff reported that she “ha[s] been discriminating [ sic ] against by [her] co-worker [Defendant Gerrardo]. He refuses to listen to [her]. He will not take direction from a white female and purposely has tried to sabotage [her].” Cambreleng Decl. Ex. B at 29. Cambreleng Decl. Ex. F at 1. Viewed in the light most favorable to Plaintiff, Plaintiff's October 8 grievance report opposed conduct that Plaintiff perceived to be unlawful under Title VII: sex discrimination from Defendant Gerrardo. See Brooks, 229 F.3d at 928 (concluding that a plaintiff's complaint about an employee's harassment is a protected activity under Title VII). Thus, as to Plaintiff's final grievance only, Plaintiff has presented sufficient evidence to allow a reasonable jury to find that she engaged in a protected activity by opposing an employment practice that she reasonably believed violated the law.
2. Adverse Employment Action
As this Court previously noted, there is no dispute that Plaintiff was subjected to an adverse employment action when she was terminated. See Brooks, 229 F.3d 917 at 928 (“Among those employment decisions that can constitute an adverse employment action are termination.”).
On remand, this Court also concludes that the verbal and written warnings Plaintiff received could constitute adverse employment action because those warnings “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington, 548 U.S. at 68. Written warnings are just below unpaid suspension in Lamb Weston's progressive discipline policy. Cooper Decl. Ex. 16 at 3, ECF 26. The written warnings stay in an employee file for a 12-month period, and if the employee receives three written or verbal warnings within a rolling 12-month period, they will be suspended without pay, with a view toward discharge. Id. These warnings thus may dissuade a reasonable person from engaging in protected activity, even if it did not dissuade Plaintiff in this instance. The fact that “plaintiff is not dissuaded from engaging in the protected activity is not dispositive; the objective circumstances are.” Bala, 2022 WL 17593169, at *2.
In sum, the verbal and written warnings, as well as Plaintiff's termination, constitute adverse employment actions for purposes of her retaliation claims.
3. Causal Link
This Court adheres to its prior conclusion that Plaintiff has set forth sufficient evidence for a reasonable jury to conclude there is a causal link exists between her protected activity and her termination based on the temporal proximity between the two acts. The Ninth Circuit has recognized that “proximity in time between the protected action and the allegedly retaliatory employment decision [i]s one [way] a jury logically could infer [that the plaintiff] was terminated in retaliation.” Dawson v. Entek Int'l, 630 F.3d 928, 937 (9th Cir. 2011) (quoting Keyser v. Sacramento City Unified Sch. Dis., 265 F.3d 741, 751-52 (9th Cir. 2001)); see also Yartzoff 809 F.2d at 1376 (“Causation sufficient to establish the third element of the prima facie case may be inferred from circumstantial evidence, such as the employer's knowledge that the plaintiff engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision.”). Significantly, “temporal proximity can by itself constitute sufficient circumstantial evidence of retaliation for purposes of both the prima facie case and the showing of pretext.” Dawson, 630 F.3d at 937 (emphasis added); see also Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1069 (9th Cir. 2003)) (holding that the “close temporal proximity between Plaintiff's complaints” and a defendant's retaliatory conduct along with dismissive remarks during the plaintiff's complaints was enough to preclude summary judgment).
Defendants assert that Plaintiff cannot prove a causal link between her protected activity and termination because Plaintiff only has a subjective belief that she was terminated for engaging in a protected activity. Defs.' Mem. in Supp. 19-20, ECF 22. The Court disagrees.
Here, there was a close proximity in time between Plaintiff's protected activity and her termination: Plaintiff filed her final grievance on October 8, 2018, Cooper Decl. Ex. 15, and she was terminated on October 16, 2018. Cooper Decl. Ex. 19. “[W]here an adverse employment action follows on the heels of protected activity,” timing alone can suffice to show causation. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). Given the temporal proximity between Plaintiff's final grievance report and her termination, a reasonable jury could find that Plaintiff has established a prima facie case of retaliation under both Title VII and ORS 659A.030.
Plaintiff cannot, however, establish a causal link with respect to the written and verbal warnings she received. As noted above, the only protected activity in this case was her October 8 grievance. The written and verbal warnings she received predated that grievance. Because Plaintiff only complained of Defendant Gerrardo generally and had not asserted any violations of the law before these warnings, Plaintiff cannot demonstrate any causal connection between her later protected activity and these prior adverse employment actions.
B. Defendant Lamb Weston's Reasons for Terminating Plaintiff and Pretext
Defendants argue that it had a legitimate, nondiscriminatory reason for terminating Plaintiff after she struck Defendant Gerrardo. Defs.' Suppl. Br. 5, ECF 56. The Court agrees that Defendant has provided a legitimate, nondiscriminatory reason for terminating Plaintiff. Thus, the burden shifts back to Plaintiff to show that these legitimate reasons are pretext for discrimination.
As the Court has recognized above, there was a close temporal proximity between Plaintiff's final grievance and her eventual termination. Plaintiff was terminated a little over a week after she filed her final grievance, which alleged that Defendant Gerrardo discriminated against Plaintiff because she is a woman. There is also contemporaneous evidence of Lamb Weston's displeasure with Plaintiff. These facts may serve as “strong circumstantial evidence of retaliation.” Bell v. Clackamas Cnty., 341 F.3d 858, 866 (9th Cir. 2003). Given that Plaintiff “need produce very little evidence of a discriminatory motive to raise a genuine issue of fact as to pretext,” Payne, 113 F.3d at 1080, the circumstantial evidence in this case is sufficient.
Moreover, Lamb Weston cannot rely on the undisputed fact that Plaintiff's hand made contact with Gerrardo to assert that Plaintiff cannot demonstrate pretext. There is a factual dispute as to whether Gerrardo was the aggressor and, accordingly, whether Plaintiff violated Lamb Weston's workplace violence policies. See Withrow Decl. ¶ 22. A reasonable juror could conclude that Lamb Weston's basis for terminating Plaintiff's employment was factually incorrect and pretextual. Cf. Cherry v. Serco, Inc., No. 2:19-CV-353-HL, 2023 WL 142907, at *5 (D. Or. Jan. 10, 2023) (concluding that there was no genuine issue of fact as to pretext where it was undisputed that the plaintiff's threats to his supervisor violated the defendant's zerotolerance policy for workplace violence).
Plaintiff has therefore presented sufficient evidence to create a genuine issue of material fact concerning whether her termination was pretextual.
In sum, Defendant Lamb Weston's Motion for Summary Judgment on Plaintiff's state and federal retaliation claims should be denied insofar as Plaintiff alleges that her termination was in retaliation for her October 8 grievance concerning Defendant Gerrardo's conduct.
III. Defendant Gerrardo
As to Defendant Gerrardo, Judge Immergut previously granted his Motion for Summary Judgment on the retaliation claim because there was no evidence in the record that he participated in the termination decision. Order at 5-6, ECF 52. Similarly, there is no evidence in the record that Defendant Gerrardo participated in the decision to issue Plaintiff a written warning or coach her for her negative tone on the radio. Withrow Decl. ¶ 2 (stating Gerrardo was a subordinate); Cooper Decl. Ex. 6 (written warning signed by Christopher Rowe). Moreover, even if Defendant Gerrardo had participated in those warnings, they predated the protected conduct at issue, which was her October 8 grievance. Thus, Defendant Gerrardo's Motion for Summary Judgment should be granted as to claim five.
RECOMMENDATION
Defendant Lamb Weston's Motion for Summary Judgment on Plaintiff's fourth and fifth claims for state and federal retaliation should be denied insofar as Plaintiff alleges that her termination was in retaliation for her October 8 grievance concerning Defendant Gerrardo's conduct. Defendant Gerrardo's Motion for Summary Judgment should be granted as to claim five.
SCHEDULING ORDER
The Supplemental Findings and Recommendation will be referred to Judge Immergut Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.