Opinion
3:21-cv-01537-YY
01-05-2024
JENNIFER AYARS, Plaintiff, v. AUTOZONERS, LLC, Defendant.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU, UNITED STATES MAGISTRATE JUDGE
FINDINGS
Plaintiff Jennifer Ayars has brought this suit against defendant Autozoners, LLC, for alleged employment discrimination under a variety of federal and state laws, including the Family Medical Leave Act (“FMLA”), Title I of the Americans With Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), Oregon's employment discrimination statute, O.R.S. 659A.030, the Oregon Family Leave Act (“OFLA”), the Oregon Rehabilitation Act (“ORA”), O.R.S. 659A.100 et seq., and Oregon common law. Defendant has moved for summary judgment on all claims, arguing that it justifiably terminated plaintiff in late 2020 following two separate investigations into complaints that employees had lodged against plaintiff at the AutoZone store in southeast Portland that plaintiff had managed since 2018. Plaintiff insists that, among other things, the investigations were instead retaliation for her repeated requests for help with staffing at the store; plaintiff claims that, due to a heart condition, she had struggled to cover the hours necessary to run the store during the COVID-19 pandemic. She primarily asserts that defendant discriminated against her because of her disability and failed to accommodate it, and that defendant interfered with her rights under the FMLA and OFLA by terminating her shortly after she requested medical leave. Defendant has moved to strike substantial portions of plaintiff's declaration that she submitted in support of her response to defendant's motion for summary judgment. For the reasons that follow, defendant's motions to strike should be denied, and defendant's motion for summary judgment should be denied as to plaintiff's failure to accommodate claims under the ADA and the ORA, but granted as to all other claims.
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.' ” Id. at 324 (citing FED. R. CIV. P. 56(e)).
The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
The Ninth Circuit has cautioned against “too readily” granting summary judgment in employee discrimination cases because of “the importance of zealously guarding an employee's right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004); see also Chuang v. Univ. of California Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) (“As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment. This is because ‘the ultimate question is one that can only be resolved through a searching inquiry-one that is most appropriately conducted by a factfinder, upon a full record.'”) (quoting Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)).
II. Defendant's Motions to Strike
Before discussing the merits of defendant's motion for summary judgment, it is necessary to address defendant's evidentiary objections or motions to strike, which defendant included as part of its reply in support of the motion for summary judgment. Reply 2-15, ECF 35. In all, defendant made approximately 60 motions to strike that seek to strike 93 paragraphs of the declaration that plaintiff submitted in response to defendant's motion for summary judgment. Resp. Mot. Strike 1-2, ECF 38. As an initial matter, many of these motions or objections are baseless or attack portions of plaintiff's declaration that have no bearing on the court's evaluation of defendant's motion for summary judgment. For example, defendant moved to strike as irrelevant the paragraph in plaintiff's declaration where she listed her address. See Reply, ECF 35. It may be true that, as a technical matter, plaintiff's address is not directly relevant to whether, for example, defendant discriminated against plaintiff because of her disability. But it would be an extraordinary waste of judicial resources to engage in the flyspecking of plaintiff's declaration that many of defendant's motions to strike would require.
Moreover, defendant's objections on the basis of relevance or speculation are duplicative of the summary judgment standard itself: “[a] court can award summary judgment only when there is no genuine dispute of material fact. It cannot rely on irrelevant facts, and thus relevance objections are redundant....Instead of objecting, parties should simply argue that the facts are not material.” Burch v. Regents of Univ. of California, 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006) (emphasis in original); see also Mot. Summ. J. 7, ECF 35 (“Plaintiff's allegations regarding Bodee Ward . . . throwing a clipboard at her are not relevant given that she does not claim this was due to her gender or disability and because she admitted she never reported this incident to the company during her employment.”).
Some of defendant's motions to strike would require the court to weigh the credibility of various witnesses' statements or testimony, which is not appropriate at this procedural juncture. Reply 3, ECF 35 (“Plaintiff's alleged asking Tracy Eckersell . . . for ‘help' in 2019 because she could not do all of the work needed in the store is not relevant given that Plaintiff does not allege that this was a request for an accommodation, evidence of discrimination, or that she did not receive such help. Plaintiff cannot make such an allegation given testimony by other Store Managers that they were sent to her store to help her.”). And some of defendant's motions to strike seek to exclude portions of plaintiff's declaration that are purportedly hearsay or inadmissible character evidence. Id. at 9-11. As will become apparent, none of this evidence is part of the court's evaluation of defendant's motion for summary judgment. And, although some portions of plaintiff's declaration may eventually be deemed inadmissible on these grounds, there are exceptions to evidentiary rules regarding hearsay and character evidence that may apply depending on the evidence and testimony produced at trial, and thus it would be premature to conclusively rule on those issues at this time. See Gonzalez v. Cnty. of Yolo, No. 2:13-cv-01368-KJM-AC, 2015 WL 4419025, at *4 (E.D. Cal. July 17, 2015) (“In particular, hearsay objections are often premature at summary judgment when asserted by the moving party. Without a doubt, should the court grant a motion for summary judgment, it must do so on the basis of admissible evidence. But a party opposing a motion for summary judgment seeks a trial, not a verdict, and it stands to reason that if evidence may probably be converted to admissible form for trial, it should not be excluded at summary judgment.”) (internal citations omitted).
Defendant also moves to strike a number of paragraphs from plaintiff's declaration that purportedly contradict her deposition testimony under the so-called sham affidavit rule. Reply 11-15, ECF 35. This rule provides that a party cannot manufacture an issue of fact by presenting an affidavit that contradicts prior deposition testimony. Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). The rule is to “be applied with caution,” because it “is in tension with the principle that a court's role in deciding a summary judgment motion is not to make credibility determinations or weigh conflicting evidence.” Id. “Aggressive invocation of the rule also threatens to ensnare parties who may have simply been confused during their deposition testimony and may encourage gamesmanship by opposing attorneys.” Id.
The sham affidavit rule requires (1) that the court make a factual finding that any alleged contradiction between a proffered affidavit and prior testimony is actually a sham, and (2) that the contradiction is clear and unambiguous. Id. at 998-99. There is no basis for applying the sham affidavit rule here because the purported “contradictions” that defendant identified are either non-existent or not sufficiently clear and unambiguous to warrant striking the portions of plaintiff's declaration at issue. For example, defendant asserts that “[p]laintiff's statements that she became overworked and had to work more than 50 hours per week at ‘the start of the pandemic' directly contradict her deposition testimony that she did not begin working more than 50 hours a week until June or July of 2020.” Reply 13, ECF 35. But plaintiff's declaration actually states that plaintiff's workload changed “after the start of the pandemic”; plaintiff's testimony that her hours changed in June or July of 2020 is not clearly and unambiguously contradictory with her declaration that the change occurred sometime “after the start of the pandemic.” See Ayars Decl. ¶ 45, ECF 30 (emphasis added). As another example, defendant argues that “[p]laintiff's new allegation that she asked Mr. Ward to reduce the hours the store was open contradicts her testimony in which she was asked about any accommodation she requested, and Plaintiff said only that she needed more staff and help with truck.” Reply 13, ECF 35. But defense counsel never asked plaintiff to list all of the accommodations she requested from defendant and thus there is no clear and unambiguous contradiction between plaintiff's testimony and her declaration on this point. See Kern Decl., Ex. A (Ayars Dep. 72:7-78:3), ECF 24-2.
For all of these reasons, defendant's motions to strike lack merit.
III. Discussion
Plaintiff asserts both federal and state law claims in her complaint, and because many of plaintiff's state law claims are modeled after the congruent federal statute, the state law claims are analyzed together with the federal claims. See, e.g., Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 892 n.1 (9th Cir. 2001) (“The Oregon disability discrimination statute is modeled after the ADA. Accordingly, we interpret [that statute] consistently with the ADA.”); Heller v. EBB Auto Co., 8 F.3d 1433, 1437 n.2 (9th Cir. 1993) (“Courts construe Oregon's statutory counterpart, [O.R.S. 659A.030], as identical to Title VII.”); Doby v. Sisters of St. Mary of Or. Ministries Corp., No. 3:13-cv-0977-ST, 2014 WL 3943713, at *9 (D. Or. Aug. 11, 2014) (holding the OFLA is to be “construed to the extent possible in a manner that is consistent with any similar provisions of [the FMLA]”) (citing Sanders v. City of Newport, 657 F.3d 772, 783 (9th Cir. 2011)).
A. FMLA and OFLA Interference
In her first and second claims, plaintiff asserts claims for interference under the FLMA, interference, discrimination, and retaliation under the OFLA, and wrongful termination under Oregon common law. Compl. ¶¶ 42-74, 144-152, ECF 1. Plaintiff alleges that defendant wrongly terminated her after she requested and took protected medical leave in October of 2020.
The Ninth Circuit recognizes three types of claims under the FMLA: (1) interference claims, when an employer interferes with an employee's exercise of rights under the FMLA, 29 U.S.C. § 2615(a)(1); (2) retaliation claims, when an employer discriminates against an employee for instituting or participating in proceedings or inquiries under the FMLA, 29 U.S.C. § 2615(b); and (3) discrimination claims, when an employer discriminates against an employee for opposing any practice prohibited by the FMLA, 29 U.S.C. § 2615(a)(2). Bachelder v. American West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001). Although often styled as “retaliation” claims, allegations that an employee was fired for taking leave are analyzed as claims for “interference” with FLMA or OFLA rights. Benz v. West Linn Paper Co., 803 F.Supp.2d 1231, 1249 (D. Or. 2011). To assert a “discrimination” or “retaliation” claim under the FMLA or OFLA, plaintiffs must assert that they opposed a practice prohibited by the statute or participated in proceedings under the statute. Id. Plaintiff makes no such allegations here, and plaintiff's briefing, while not expressly stating as much, analyzes her OFLA retaliation and discrimination claims as interference claims. See Compl. ¶¶ 17-42, ECF 1; Resp. 24-29, ECF 28. Furthermore, both parties treat plaintiff's common law wrongful termination claim as being subject to the same analysis as plaintiff's FMLA interference claim. See Mot. Summ. J. 16-18, ECF 24; Resp. 2429, ECF 28 (“Plaintiff has met her burden to establish her FMLA, OFLA, and wrongful termination claims.”). Thus, plaintiff's first, second, and tenth claims for relief are concurrently analyzed using the FMLA interference standard.
“To sustain an FMLA interference claim, a plaintiff must show by a preponderance of the evidence that: (1) the plaintiff took or requested protected leave; (2) the employer subjected the plaintiff to an adverse employment action; and (3) the taking of or requesting protected leave was a ‘negative factor' in the adverse employment decision.” Schultz v. Wells Fargo Bank, Nat. Ass'n, 970 F.Supp.2d 1039, 1053 (D. Or. 2013) (citing Bachelder, 259 F.3d at 1125) (additional citations omitted). An FMLA interference claim is not subject to the burden-shifting analysis under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Xin Liu v. Amway Corp., 347 F.3d 1125, 1135 (9th Cir. 2003); Bachelder, 259 F.3d at 1125. Instead, FMLA and OFLA claims will survive summary judgment if there is a triable issue of material fact as to whether the employee's FMLA leave request was impermissibly considered as a factor in the employee's termination. Marquez v. Glendale Union High School Dist., No. 2:16-cv-03351-JAT, 2018 WL 4899603, at *23 (D. Ariz. Oct. 9, 2018).
It is undisputed that plaintiff suffers from a heart condition and requested protected leave on October 14, 2020. It is further undisputed that plaintiff was informed of her termination on October 16, 2020. Defendant asserts, however, that Regional Manager Michael Lewis made the decision to terminate plaintiff on September 28, 2020, and at that time, Lewis had no knowledge that plaintiff intended to take leave thereafter or that she had a disability or health condition that might cause her to take leave. Mot. Summ. J. 12-14, 16-18 ECF 24; Reply 18, ECF 35. Indeed, even when viewed in the light most favorable to plaintiff, there are no facts showing that plaintiff's request for FMLA leave was a negative factor in Lewis's decision to terminate her employment.
Ayars Decl. ¶¶ 4, 125, ECF 30; see also Snyder Decl., Ex. 17 at 1-3, ECF 29 (leave form signed by health care provider on October 14, 2020).
Plaintiff attests that she was informed of her termination over the telephone on October 16, 2020. Ayars Decl. ¶ 127, ECF 30; see also Snyder Decl., Ex. 25 (Ward Dep. 85:12-23), ECF 29 (“We did it over the phone . . . I called her . . . [and] said, . . . AutoZone has made the decision to terminate your employment.”). Defendant indicates that, “from a system standpoint,” the termination date is October 24, 2020. Kern Decl., Ex. D. (Mongioi Dep. 22:24-23:1), ECF 24-5; Id., Ex. B (Lewis Dep. 88:15-17), ECF 24-3.
Plaintiff's termination was preceded by two investigations into plaintiff's management of the store, conducted in June and September 2020. Tracy Eckersell, the regional human resources manager, conducted the investigations by interviewing the relevant employees, and then submitted written reports to Lewis that identified the violation type, made suggestions for improvement, and recommended “action to be taken” in light of the investigation's findings.
See Lewis Dep. 131:4-14, ECF 24-3 (describing responsibilities of regional human resources manager).
See Lewis Dep., Exs. 6-17, ECF 24-3.
Lewis, as the regional manager, had the final authority to hire, promote, terminate, or discipline employees in the region.
Lewis Dep. 131:15-132:10, ECF 24-3. Ronald Mongioi, the divisional human resources manager, confirmed that Lewis had the sole authority to make termination decisions for employees in his region. Kern Decl., Ex. D. (Mongioi Dep. 59:6-15), ECF 24-5; see also Lewis Dep., Ex. 4 at 1, ECF 24-3 (Mongioi title).
In June of 2020, Eckersell investigated an employee complaint that plaintiff and two other female employees had a “girl pact” whereby they would “not give each other attendance points.” Through the investigation, Eckersell found that one employee, Amanda Dow, had falsified timecards, and that plaintiff had failed to issue Dow attendance points when Dow was late to work, among other employment infractions. Eckersell recommended that Dow be terminated, and that plaintiff be issued a “serious violation” and be demoted and transferred to a different store. Lewis reviewed Eckersell's investigation report and recommendation. He agreed that Dow should be terminated, but did not adopt Eckersell's recommendations for plaintiff, deciding instead that plaintiff be issued a “serious violation” for failing to comply with AutoZone policy, a “[l]oss of confidence,” and “[a]cts of conduct which may be detrimental to an AutoZoner, customer or AutoZone.”
Lewis Dep. 121:10-22, ECF 24-3; Kern Decl., Ex. C (Eckersell Dep.), Ex. 6 at 3, 24-4.
Lewis Dep. at 147:2-24, 150:13-24, ECF 24-3.
Eckersell Dep., Ex. 6 at 3, ECF 24-4.
Lewis Dep. 142:12-143:11, ECF 24-3.
Eckersell Dep., Ex. 6 at 2, ECF 24-4.
In September of 2020, Eckersell investigated a complaint about plaintiff's treatment of employees and allegations that plaintiff was creating a “hostile and unprofessional work environment.” Again, Eckersell conducted interviews, including an interview with plaintiff on the morning of September 28, 2020, and later that day, at 3:10 p.m., Eckersell sent Lewis an email recommending that plaintiff be terminated. Lewis reviewed Eckersell's recommendation and the transcripts from the interviews Eckersell had conducted, including plaintiff's interview,and, at 3:45 p.m., Lewis sent Eckersell an email stating he was “aligned” with Eckersell's recommendation. It is undisputed that, at the time Lewis made the decision to terminate plaintiff, he was unaware that plaintiff had a health condition, or that she had requested or was planning on requesting medical or other type of leave.
Lewis Dep. 158:15-24, 160:11-25, ECF 24-3.
Eckersell Dep., Ex. 18 at 1-2, ECF 24-4; see also Lewis Dep., Exs. 15-17, ECF 24-3.
Lewis Dep. 167:11-24, ECF 24-3; Eckersell Dep., Ex. 18 at 1, ECF 24-4.
Eckersell Dep. 81:14-21, ECF 24-4; Lewis Dep. 88:6-17, ECF 24-3.
Lewis Dep. 80:9-81:15, 82:20-25, 178:4:11, ECF 24-3.
The decision to terminate plaintiff was not immediately communicated to her because defendant's practice was to communicate the termination decision in person. That process was interrupted because, after plaintiff interviewed with Eckersell on September 28, 2020, she left work early after she began feeling unwell. The next day, plaintiff notified then District Manager Bodee Ward that she was not at work because of her heart condition and she would get a doctor's note. Plaintiff remained out of work, and on October 7, 2020, she notified Ward that she intended to take FMLA leave. Plaintiff completed the FMLA paperwork on October 14, 2020. On October 16, 2020, after plaintiff asked about her missing paycheck, Ward telephoned plaintiff and told her she was terminated. Thus, there is no evidence that plaintiff's request for FMLA leave was a negative factor in Lewis's September 28, 2020 decision to terminate her employment because plaintiff did not request or take medical leave until approximately two weeks after the investigation had concluded and Lewis made the decision to terminate her. See Mortensen v. Pacificorp, No. 3:06-cv-00541-HU, 2007 WL 405873, at *16 (D. Or. Feb. 1, 2007) (granting summary judgment on FMLA interference claim because by the time the plaintiff “requested, and received, intermittent FMLA leave in May 2005 . . . the negative performance evaluations, the investigation of her discrimination complaint” and other adverse employment actions “had all taken place”).
See Mongioi Dep. 18:8-24, ECF 24-5; Eckersell Dep. 84:21-85:3, ECF 24-3.
Ayars Decl. ¶ 114, ECF 30.
Snyder Decl., Ex. 15 at 1-2, ECF 29.
Snyder Decl., Ex. 25 at 1-4, ECF 29.
Snyder Decl., Ex. 17 at 1-3, ECF 29; Ayars Decl. ¶ 125, ECF 30.
Ayars Decl. ¶ 127, ECF 30; Ward Dep. 85:12-23, ECF 29.
Plaintiff asserts that she told Eckersell in “January or February of 2019” that she “needed help because [she] had a heart condition and . . . could not do all of the work by [herself],” and that she also told Eckersell in August of 2020 that her “health was failing because of the amount of hours that [she] was working and that [she] needed to work less hours.” Eckersell denies that she knew about plaintiff's condition. But even crediting plaintiff's assertions as true, they do not change the analysis on plaintiff's FMLA interference claim. For one, it was Lewis, not Eckersell, who had the final authority to decide whether to terminate plaintiff's employment, and there is no evidence in the record that Lewis knew plaintiff had a health condition or intended to take medical leave. Furthermore, even if Eckersell's knowledge could be imputed to Lewis for purposes of plaintiff's FMLA interference claim, a proposition for which plaintiff offers no authority, plaintiff's vague statements to Eckersell that she needed help with staffing or needed to work less hours were insufficient to inform defendant that plaintiff intended to take FMLA leave. See Kinney v. Holiday Companies, 398 Fed.Appx. 282, 284 (9th Cir. 2010) (affirming summary judgment in employer's favor on FMLA interference claim because plaintiff “never made an unconditional request for time off . . . let alone one that met the FMLA's notice requirement” because she only told her “manager that she ‘wasn't feeling good' and ‘needed to go home,' and she asked her manager if she could ‘possibly find somebody to come in.' ”). Plaintiff also asserts that Ward knew about her condition, and that in August of 2020, she told Ward that she needed more help or she “was going to have to go on medical leave.” Like plaintiff's statements to Eckersell, this equivocal statement is not an “unconditional request” for time off. See id. Furthermore, there is no evidence that Ward was involved in or consulted about the decision to terminate plaintiff, and again, there is no evidence that Lewis, the ultimate decision-maker regarding plaintiff's termination, had knowledge that plaintiff intended to take medical leave until after he made the decision to terminate her employment.
Id. at ¶ 21, ECF 30; see also Ayars Dep. 99:2-18, ECF 24-2.
Ayars Dep. 150:8-22, ECF 24-2.
Eckersell Dep. 45:6-10, ECF 24-4.
Ayars Dep. 72:8-24, ECF 24-4.
Kern Decl., Ex. E (Ward Dep. 76:2-4), ECF 26-6; Lewis Dep. 157:17-25, ECF 24-3.
Finally, plaintiff challenges the validity of the employee complaints that led to the investigations, the underlying facts of the incidents that were the subject of the investigations, and whether the corrective actions defendant took in light of the investigations' findings were warranted. See Resp. 28-29, ECF 28. But all of this took place before plaintiff made the request for protected leave, and thus plaintiff cannot establish that her medical leave was a “negative factor” in her termination. See Bachelder, 259 F.3d at 1125. Therefore, defendant is entitled to summary judgment on plaintiff's FMLA, OFLA, and wrongful termination claims.
B. ADA and ORA Claims
Plaintiff's third, fourth, and seventh claims for relief under the ADA and ORA are premised on three theories of liability: (1) disability discrimination or disparate treatment, (2) failure to accommodate, and (3) retaliation. See Compl. ¶¶ 109-123, ECF 1. Each is addressed in turn below.
Plaintiff's complaint also asserted a hostile work environment claim under the ORA. Compl. ¶ 112, ECF 1. As explained below, plaintiff's counsel clarified at the hearing on defendant's motion for summary judgment that plaintiff's hostile work environment claim applied to plaintiff's sex or discrimination claims, and not her disability discrimination claims.
1. Disparate Treatment
Title I of the ADA makes it unlawful for an employer to discriminate against “a qualified individual on the basis of disability” regarding the hiring, advancement, or discharge of employees, as well as “other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). On summary judgment, ADA and ORA discrimination claims are evaluated under the McDonnell-Douglas burden-shifting framework, which places the initial burden on the plaintiff to present a prima facie case of unlawful discrimination. Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50 (2003); Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014) (“Discrimination and retaliation claims under the ADA are both subject to the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green.”) (internal citation omitted). If the plaintiff meets this burden, the defendant must show that it had a legitimate, nondiscriminatory reason for its action. Raytheon, 540 U.S. at 50. At the final step of the analysis, the plaintiff must establish that the defendant's proffered reason is pretextual. Id. at 52.
To state a prima facie case of discrimination under the ADA, a plaintiff must show (1) that she is a disabled person within the meaning of the ADA; (2) that she is qualified, or in other words, she is able to perform the essential functions of the job with or without reasonable accommodation, and (3) that the employer terminated her because of her disability. Nunies v. HIE Holdings, Inc., 908 F.3d 428, 433 (9th Cir. 2018). Here, the first two elements are undisputed. See Mot. Summ. J. 19-22, ECF 24. Plaintiff asserts that the third element is established by the close timing of her requests for accommodation and eventual termination:
On April 16, 2020, plaintiff requested additional staff hours from Ward by text message. In June 2020, plaintiff discussed her heart condition with Ward, and told him she needed additional staff to help unload the trucks. Then on June 11, 2020, the first baseless complaint against plaintiff was investigated and plaintiff was issued serious discipline. On August 18, 2020, plaintiff explained her cardiac condition to Eckersell, and requested not to have to terminate [another employee] without a plan to replace him. Her request was denied, and just over one month later on September 22, 2020, plaintiff was investigated again by Eckersell, resulting in plaintiff's termination.Resp. 35-36, ECF 28 (internal citations omitted).
For the sake of consistency and clarity, the names of individuals from this quoted excerpt of plaintiff's brief have been adjusted to conform with the court's preferred naming conventions.
Defendant does not reply to this argument regarding the close temporal proximity of these events and causation; instead, defendant argues that plaintiff cannot establish a prima facie case of discrimination because she has no evidence that “the decision maker had knowledge of her disability on September 28, 2020, when the decision to terminate her was made,” and further that plaintiff “cannot show that anyone else who had input into the decision harbored any discriminatory animus toward her.” Mot. Summ. J. 20-21, ECF 24 (citing Melani v. Chipotle Serv's LLC, 3:17-cv-01177-AC, 2019 WL 7879951, at *11-13 (D. Or. Sept. 4, 2019). But in the same case that defendant cites, the court found that “proximity of time between the protected action and the allegedly unlawful discharge” was sufficiently close to establish a prima facie case, and analyzed the “knowledge” of the decision-maker as part of the pretext analysis. See Melani, 2019 WL 7879951 at *11-14. Given that the “degree of proof necessary to establish a prima facie case . . . is minimal,” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002), and the close timing between, for example, plaintiff's conversation with Eckersell about her heart condition in August of 2020 and plaintiff's termination in September of 2020, plaintiff has satisfied her initial burden to establish a prima facie case for disability discrimination.
As discussed above, defendant has proffered a legitimate, nondiscriminatory reason for its decision to terminate plaintiff. Plaintiff has not, however, offered evidence sufficient to create a question of fact as to pretext. Plaintiff asserts that the investigations were “prompted by the complaints of employees who wrongly blamed [her] for the discipline she was directed to issue to them” and that the “nature of the accusations against” her were “disputed.” Resp. 28, 29, ECF 28. But there is no evidence that the investigations by Eckersell into plaintiff's conduct were “baseless” or driven by a discriminatory animus. Both the June and September investigations were prompted by complaints from other employees about how plaintiff was managing the store and interacting with employees and customers. It was Eckersell's job to investigate employee complaints “regarding unfair treatment or discrimination,” and her investigations generally found the complaints were well-founded. Plaintiff does not identify any evidence suggesting that Eckersell and Lewis “did not honestly believe” that plaintiff was failing to properly apply the company's attendance policy (the June investigation) or that they “lost confidence” in her ability as a manager based in part on her treatment of employees and customers (the September investigation). See Villiarimo, 281 F.3d at 1063 (finding that plaintiff could not establish pretext because there was “no evidence that [the employer] did not honestly believe its proffered reasons” for terminating plaintiff); Andrade v. Schnitzer Steel Indus., Inc., No. 3:21-cv-00860-HZ, 2023 WL 4082284, at *13 (D. Or. June 16, 2023) (same); Miller v. State by & through Oregon Racing Comm'n, 298 Or.App. 70, 94 (2019) (“Plaintiff has not offered evidence to show that the investigation was a sham motivated by a discriminatory evaluation of her qualifications or performance.”).
Lewis Dep. 121:4-19, 158:1-24, ECF 24-3.
Id. at 131:4-9, 141:8-157:16, 158:1-177:21.
Furthermore, as explained above, Lewis made the final decision to terminate plaintiff, and there is no evidence in the record that Lewis knew about plaintiff's disability prior to making that decision on September 28, 2020. Instead, plaintiff relies on her discussions with Eckersell about her health condition in 2019 and 2020, and asserts that Eckersell's involvement in the investigation leading to her termination is evidence of pretext. Resp. 36, ECF 28 (citing Francev. Johnson, 795 F.3d 1170, 1176 (9th Cir. 2015) (explaining “cat's paw” theory of discrimination: “[E]ven if a subordinate employee with bias was not the final decisionmaker, the plaintiff can establish a causal link by proving that the biased subordinate influenced or was involved in the decision or decisionmaking process.”) (simplified). But there is no evidence suggesting that Eckersell harbored any discriminatory bias toward plaintiff. At best, plaintiff asserts that Eckersell told plaintiff to “take . . . up” her concerns about staffing with Ward, the district manager, Resp. 2, ECF 28, but that statement is not discriminatory.
This case is distinguishable from those like France v. Johnson, where an influential subordinate made statements that could be interpreted as demonstrating a bias toward a protected group. See 795 F.3d at 1174 (describing evidence in age discrimination case showing that individuals involved in the hiring process “preferred to promote ‘younger, less experienced agents' ”). The subordinate in France was also directly involved in the hiring and promotion process; he created the position to be filled, and “other interviewers deferred to” him and did not change any of the recommendations he made regarding hiring. Id. at 1176. Here, by contrast, Lewis independently reviewed the employee statements made in connection with Eckersell's investigations into the complaints about plaintiff and determined the appropriate sanctions.Lewis's independence is demonstrated by the results of the first investigation regarding the attendance and time card problems at plaintiff's store in June of 2020; while Eckersell recommended that plaintiff be demoted and transferred to a different store, Lewis disagreed and instead imposed only a “serious violation” against plaintiff.
Lewis Dep. 142:22-143:11, ECF 24-3.
Id. at 155:2-156:10.
Plaintiff also argues that the reasons defendant gave for terminating her employment were inconsistent. Resp. 36, ECF 28. But plaintiff's briefing does not specifically identify or explain which explanations were “inconsistent,” see id., and, in any event, that proposition is not supported by the record. Lewis stated that plaintiff was terminated for “acts which could be detrimental to AutoZoners [or] customers” and for not properly managing the company's attendance policy, and both of those reasons are directly supported by the documentation Eckersell created during her investigation.
Lewis Dep. 92:18-93:20, 111:21-112:21, ECF 24-3.
See Lewis Dep., Exs. 10-17, ECF 24-3.
Because plaintiff has not produced evidence sufficient to establish a question of fact as to pretext, defendant is entitled to summary judgment on plaintiff's state and federal disability discrimination claims.
2. Failure to Accommodate
Plaintiff alleges that defendant failed to provide a reasonable accommodation and engage in the interactive process under the ADA and the ORA. Compl. ¶¶ 78-82, 113-115, ECF 1. The ADA requires “reasonable accommodations of employees' disabilities by their employers.” Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1109-10 (9th Cir. 2000), vacated on other grounds sub nom. US Airways, Inc. v. Barnett, 535 U.S. 391 (2002); see also Dunlap v. Liberty Nat. Prod.,Inc., 878 F.3d 794, 798 (9th Cir. 2017) (explaining that a “failure-to-accommodate claim is analytically distinct from a claim of disparate treatment or impact under the ADA”) (simplified). To establish a prima facie case for failure to accommodate, plaintiff must show: (1) she is a qualified individual, (2) defendant received adequate notice of her desire for a reasonable accommodation, and (3) a reasonable accommodation was available that would have enabled plaintiff to perform the essential functions of her job. Wolff v. Tomahawk Mfg., No. 3:21-cv-00880-SI, 2023 WL 5571899, at *14 (D. Or. Aug. 29, 2023).
“Upon notice of a request for accommodation, ‘an employer has a mandatory obligation to engage in an interactive process with employees in order to identify and implement appropriate reasonable accommodations.' ” Braa v. Costco Wholesale Corp., No. 6:21-cv-00684-MC, 2023 WL 5039912, at *7 (D. Or. Aug. 8, 2023) (quoting Anthony v. Trax Int'l Corp., 955 F.3d 1123, 1134 (9th Cir. 2020). “The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process.” Humphrey v. Mem. Hosps. Ass'n, 239 F.3d 1128, 1137 (9th Cir. 2001). There is no “particular language” required to activate this duty but the employee must “inform the employer of the need for an adjustment due to a medical condition.” Wolfe, 2023 WL 5571899 at *14 (quoting Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002)). “If an employer receives notice and fails to engage in the interactive process in good faith, the employer will face liability if a reasonable accommodation would have been possible.” Snapp v. United Transportation Union, 889 F.3d 1088, 1095 (9th Cir. 2018) (simplified). “In other words, there exists no stand-alone claim for failing to engage in the interactive process. Rather, discrimination results from denying an available and reasonable accommodation.” Id. If, however, “an employer fails to engage in good faith in the interactive process, the burden at the summary-judgment phase shifts to the employer to prove the unavailability of a reasonable accommodation.” Id.; see also Kimmons v. First Transit, Inc., No. 3:21-cv-00768-SB, 2023 WL 5836029, at *28 (D. Or. Sept. 8, 2023).
As previously mentioned, defendant does not dispute that plaintiff is a “qualified individual.” See Mot. Summ. J. 19-22, ECF 24. As for the notice element, plaintiff testified that “not long after” she was made store manager in January of 2019, she told Eckersell that she had a heart condition and that she “cannot be doing all of this by myself,” and that she similarly told Eckersell in 2020 that the problems with staffing at her store were causing her health condition to worsen. Furthermore, plaintiff told Ward in August of 2020 that she had “congestive heart failure” and that “working so many hours” was causing her numerous health issues.
Snyder Decl., Ex. 20 (Ayars Dep. 97:13-19, 98:1-99:4), ECF 29; see also Ayars Dep. 150:8-22, ECF 24-2..
Ayars Dep. 72:8-24, ECF 24-2.
Defendant asserts that this notice was not sufficient to trigger its obligations under the ADA because plaintiff “never reported that her alleged disability was impacting her ability to perform the essential duties of her job in terms of staffing.” Reply 19, ECF 35 (emphasis in original). In other words, defendant argues that plaintiff was not specific enough in saying that her disability prevented her from adequately staffing the store. But defendant cites no case that requires a plaintiff to provide that level of specificity in notifying an employer of a need for an accommodation due to disability. See Mot. Summ. J. 19, ECF 24; Reply 16, ECF 35. Rather, “[t]he standard for determining whether an employer has been put on notice that an employee is seeking a reasonable accommodation for the employee's limitations is low: an employee need only ‘inform the employer of a need for an adjustment due to a medical condition using plain English and need not mention the ADA or use the phrase reasonable accommodation.' ” Hayes v. Wal-Mart Stores, Inc., 781 F.Supp.2d 1080, 1090 (D. Or. 2011) (quoting Barnett, 228 F.3d at 1112). In any event, plaintiff testified that she did, in fact, tell Ward in August of 2020 that she had a “heart condition” and “need[ed] help with staffing the store” and “help with freight” because she was “not capable of working these many hours with this amount of staff.” Ward denies knowing about plaintiff's heart condition until after she took medical leave in October of 2020. But at the very least, plaintiff has established a question of fact regarding notice that is sufficient to defeat summary judgment on this ground.
Id. 75:24-76:24.
Snyder Decl., Ex. 25 (Ward Dep. 54:9-21), ECF 29.
There is also a question of fact as to whether a reasonable accommodation was available. Defendant asserts that “[e]very Store Manager was short-staffed and needed more help during the pandemic,” and that Ward and others “did what they could” to help plaintiff by, for example, sending temporary help from other stores, providing a replacement assistant manager, and helping with recruitment. Mot. Summ. J. 20, ECF 24. Plaintiff testified, however, that one problem she experienced with hiring was that Ward required plaintiff to “send all applicants to him for a second interview” before the applicant could be hired. Plaintiff testified that Ward's timeliness in conducting second interviews declined over time, and although she was able to hire two individuals in April and May of 2020, after those hires, “[t]he timeliness of getting through these people, like to set up second interviews, started becoming problematic” and that after May of 2020, she did not “think that [she] got another person for a second interview.” According to plaintiff, she lost “potential new employees because [Ward] took so long to do second interviews,” and she provided an example of one applicant who had accepted another position by the time Ward contacted him for a second interview. This is sufficient to create a question of fact regarding defendant's efforts to accommodate plaintiff in regards to staffing.
Ayars Decl. ¶ 55, ECF 30.
Ayars Dep. 86:6-11, 24, ECF 24-2.
Ayars Decl. ¶ 55, ECF 30. This portion of plaintiff's declaration is one that defendant moved to strike as being inconsistent with her deposition testimony. See Reply 13, ECF 35 (citing Kern Decl., Ex. C (Ayars Dep. 84:1-85:13), ECF 35-4). This motion to strike typifies the selective reading defense counsel used to argue there is an inconsistency where none exists. It is true that plaintiff confirmed at her deposition that Ward seemed to act timely in hiring two individuals. See Reply 13, ECF 35; Ayars Dep. 84:1-85:13, ECF 35-4. But in that same portion of the deposition, plaintiff stated that Ward's timeliness “did not continue that way,” and she also clarified that while the text messages between Ward and plaintiff showed Ward's timeliness in conducting some interviews, “[n]ot all the people that [she] was trying to get hired were necessarily represented by text message. There was phone calls and . . . emails and whatnot.” Ayars Dep. 85:20-86:1, ECF 24-2, 35-4.
Finally, plaintiff asserts that she asked Ward “about reducing store hours because [she] could not staff all of the hours that [the store was] ordinarily open,” but Ward refused, despite the fact that other AutoZone stores “were allowed to reduce store hours if the stores could not be fully staffed.” Defendant counters that this is not a request for an accommodation because it only addresses staffing at the store and was not connected to plaintiff's disability. Reply 21, ECF 35. But taking as true plaintiff's testimony that she told both Ward and Eckersell in August of 2020 that she had a heart condition that was worsening because of the hours she was required to cover due to staff shortages, the connection between “staffing” or store hours and plaintiff's disability is plain. Moreover, there is evidence that an adjustment of store hours was at least a possibility; Lewis testified there were “several stores that did not operate under normal business hours” because there was not enough “staff to run the store,” including one store in Aloha, Oregon, that was shut down for a period of time because of staffing issues.
Ayars Decl. ¶ 59.
Lewis Dep. 9-25, ECF 29.
At the hearing on defendant's motion for summary judgment, defense counsel argued that this “reduction in store hours” accommodation was not alleged in plaintiff's complaint and thus should not be considered as a potential accommodation for purposes of summary judgment. Plaintiff's counsel countered that plaintiff had identified the reduction in store hours as a possible accommodation in responding to defendant's interrogatories during discovery, and that plaintiff's counsel had inquired about that possibility during Lewis's deposition (as noted above). The problem with defendant's position is that plaintiff testified she told both Ward and Eckersell about her disability and asked for assistance. If true, it is well-settled that such a statement triggered a mandatory obligation by defendant to engaged in the “interactive process” under the ADA. See Snapp, 889 F.3d at 1095 (“[N]otifying an employer of a need for an accommodation triggers a duty to engage in an ‘interactive process' through which the employer and employee can come to understand the employee's abilities and limitations, the employer's needs for various positions, and a possible middle ground for accommodating the employee.”). Through that process, plaintiff may have been able to learn about additional accommodations, such as a reduction in store hours. As the Ninth Circuit has explained, the interactive process “is the primary vehicle for identifying and achieving effective adjustments which allow disabled employees to continue working without placing an ‘undue burden' on employers.” Barnett, 228 F.3d at 1113. “Employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have. Putting the entire burden on the employee to identify a reasonable accommodation risks shutting out many workers simply because they do not have the superior knowledge of the workplace that the employer has.” Id.
Defendant has not pointed to any evidence that Ward, Eckersell, or anyone else gave any serious attempt to engage in the interactive process with plaintiff to discuss her limitations caused by her disability. Where defendant failed to engage in the interactive process, the fact that plaintiff only learned that reducing store hours might be possible after initiating this litigation should not preclude her from asserting it now in opposition to defendant's motion for summary judgment. See Barnett, 228 F.3d at 1116 (holding that “employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible” and further holding “that an employer cannot prevail at the summary judgment stage if there is a genuine dispute as to whether the employer engaged in good faith in the interactive process”).
Of course, it is possible that the fact-finder may not view plaintiff's testimony regarding what she told Ward and Eckersell about her condition to be credible, but that is not a question for the court to resolve at summary judgment.
Defendant is therefore not entitled to summary judgment on plaintiff's failure to accommodate claims under the ADA and the ORA.
3. ADA Retaliation
Defendant moves for summary judgment on plaintiff's fourth claim for relief, which asserts that defendant retaliated against her for pursuing her rights under the ADA. Compl. ¶¶ 91-100, ECF 1. Plaintiff's briefing did not address any of defendant's arguments regarding this claim, and therefore defendant is entitled to summary judgment on plaintiff's fourth claim for relief. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000) (“If the nonmoving party fails to produce enough evidence to create a genuine issue of material fact, the moving party wins the motion for summary judgment.”) (citation omitted); Wallace v.City of San Jose, 799 Fed.Appx. 477, 479 (9th Cir. 2020) (“[T]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.”) (simplified); see also Konoloff v. Safeco Ins. Co. of Am., No. 3:20-cv-01622-AR, 2022 WL 3648656, at *5 (D. Or. July 27, 2022).
C. Sex and Gender Discrimination
Plaintiff's fifth and sixth claims for relief assert that defendant discriminated against her based on her sex or gender, in violation of federal and state laws. Compl. ¶¶ 101-108, ECF 1. Where, as here, plaintiff does not rely on direct evidence of discrimination, the McDonnell Douglas burden-shifting framework applies to plaintiff's discrimination claims under Title VII and O.R.S. 659A.030. Tornabene v. Nw. Permanente, P.C., 156 F.Supp.3d 1234, 1242 (D. Or. 2015) (“The substantive analysis for discrimination under Title VII of the Civil Rights Act (42 U.S.C. § 2000e-2(a)) and ORS § 659A.030(b) is substantially similar, and courts often analyze such claims together.”). To establish a prima facie case of discrimination, plaintiff must show that (1) she belongs to a protected class, (2) she was performing according to the employer's legitimate expectations, (3) she suffered an adverse employment action, and (4) similarly situated employees who were not members of the protected class were treated more favorably or “other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Reynaga v. Roseburg Forest Prod., 847 F.3d 678, 691 (9th Cir. 2017). The proof necessary to establish a prima facie case for Title VII at summary judgment is “minimal” and need not be based on a preponderance of the evidence. Villiarimo, 281 F.3d at 1062.
Plaintiff's sex discrimination claims fail for a number of reasons. First, plaintiff cannot establish a prima facie case because she has not produced evidence that a similarly situated male employee was treated differently. To satisfy this element, plaintiff “must identify employees outside her [protected class] who were similarly situated to her ‘in all material respects' but who were given preferential treatment; they must ‘have similar jobs and display similar conduct.' ” Campbell v. Hawaii Dep't of Educ., 892 F.3d 1005, 1015 (9th Cir. 2018) (quoting Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1125 (9th Cir. 2009)). Plaintiff asserts that nearby stores “run by males . . . were not held to the same standards” as plaintiff's store “in terms of cleanliness and keeping up with taking inventory.” Resp. 38, ECF 28. She also states that another store manager who is male typically worked 50 to 60 hours per week over five or six working days, while plaintiff claims she was working “60 to 90 hours per week.” But plaintiff has not established that these other male managers were similarly situated “in all materials aspects.” She testified that the staffing model for nearby stores was different based on each store's individual needs; for example, the staffing situation at the store managed by Alonzo Marquez was “not quite as severe” because that store was not servicing as many commercial accounts as plaintiff's store. Additionally, plaintiff has not shown that male managers at other stores were subject to similar investigations based on employee complaints. Therefore, these managers are not sufficiently “similarly situated” to plaintiff to establish her prima facie case. See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1160 (9th Cir. 2010) (distinguishing between “misconduct by one employee from misconduct by another employee on the basis of whether it prompted complaints or consternation by other employees” in evaluating whether employees were similarly situated).
Snyder Decl., Ex. 24 (Valenzuela Dep. 25:20-25), ECF 29.
Ayars Dep. 69:1-8, ECF 35-4.
And even if plaintiff's evidence was sufficient to move past the prima facie stage, defendant would still be entitled to summary judgment because plaintiff has failed to provide any evidence that the decision to terminate plaintiff or the failure to more robustly support her requests for help with staffing were pretextual. Plaintiff's briefing did not make any specific argument regarding pretext in the context of her sex and gender discrimination claims. See Resp. 38, ECF 28. Moreover, both Lewis and Eckersell were involved in the decision to promote plaintiff in 2018, and thus there is a “strong inference” that there was no discriminatory motive when Lewis made the final decision to terminate plaintiff in 2020. Schechner v. KPIX-TV, 686 F.3d 1018, 1026 (9th Cir. 2012) (“Where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.”). As explained above, Lewis was the final decision-maker regarding plaintiff's termination, and plaintiff has not pointed to any evidence in the record suggesting that Lewis was biased toward plaintiff on the basis of her sex or gender. Similarly, there is no evidence that Eckersell was biased either, and thus to the extent she was involved in or exercised influence over the decision to terminate plaintiff (which, as explained above, is a questionable proposition in its own right), plaintiff has not raised a triable issue of fact regarding pretext for her gender or sex discrimination claims.
To the extent plaintiff's briefing could be broadly read as asserting that pretext could be established through the investigations conducted by Eckersell into the employee complaints about plaintiff and that “no manager was able to state a consistent coherent reason for [plaintiff's] termination,” Resp. at 36, ECF 28, those arguments are insufficient to establish pretext here for the same reasons they were insufficient to establish pretext in the context of plaintiff's disability discrimination claims. See supra Section III.B.1.
D. Hostile Work Environment
As part of plaintiff's seventh claim, she alleges that defendant subjected her to a hostile work environment based on her disability. Compl. ¶ 109-112, ECF 1. At the hearing on defendant's motion for summary judgment, plaintiff's counsel asserted that the hostile environment claim applied to plaintiff's sex and gender-based discrimination claims and not her disability claims because the Ninth Circuit does not recognize a hostile environment claim under the ADA. Whether such a claim exists under the ADA or the ORA is an open question, see Nadler v. City of Tucson, No. 4:20-cv-00085-RM, 2022 WL 17960186, at *7 (D. Ariz. Dec. 27, 2022) (collecting cases), although decisions in this district have sometimes assumed such a claim exists and applied the hostile work environment framework from Title VII. See James v. Oregon Sandblasting & Coating, Inc., No. 3:15-cv-01706-HZ, 2016 WL 7107227, at *7 (D. Or. Dec. 4, 2016) (collecting cases).
In any event, defendant is entitled to summary judgment on any hostile work environment claim, whether based on plaintiff's gender or disability. To avoid summary judgment, plaintiff “must raise a triable issue of fact as to whether (1) [s]he was subjected to verbal or physical conduct because of [her] disability, (2) the conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive work environment.” James, 2016 WL 7107227 at *7 (citing Manatt v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003)). Plaintiff's hostile work environment claim seems to rest on a single incident in August of 2020 involving Ward. See Resp. 37, ECF 28. The details of the incident are not entirely clear; plaintiff's declaration states that, during a visit to plaintiff's store, Ward became frustrated while assisting a customer install a car battery, and “angrily tossed a clipboard directly at” plaintiff. Defendant disputes this version of events, and claims that plaintiff testified at her deposition that Ward “waved” the clipboard at plaintiff-however, the portion of plaintiff's deposition transcript that supposedly supports that characterization does not appear in the record. See Reply 26, ECF 35 (citing Kern Decl., Ex. C at 87:22-18, ECF 35-4); see also Kern Decl., Ex. A, ECF 24-2.
Ayars Decl. ¶ 102, ECF 30.
Even if plaintiff's declaration is credited, that evidence is not sufficient to sustain a hostile work environment claim. A hostile work environment exists “[w]hen the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Payne v. Apollo Coll.-Portland, Inc., 327 F.Supp.2d 1237, 1244 (D. Or. 2004) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)) (simplified). Whether an environment is sufficiently hostile or abusive depends on “all the circumstances,” including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Cilione v. Techfive, LLC, No. 3:18-cv-02030-IM, 2020 WL 1932275, at *7 (D. Or. Apr. 21, 2020) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)). A single outburst from Ward whereby he “tossed” a clipboard at plaintiff is not so severe or extreme to create a triable issue on a hostile working environment claim. See Woods v. Graphic Commc'ns, 925 F.2d 1195, 1197-98 (9th Cir. 1991) (working environment was “polluted” with discrimination where “racial jokes, cartoons, comments and other forms of hostility directed at almost every conceivable racial and ethnic group . . . were common at the plant”); Shepherd v. City of Salem, 320 F.Supp.2d 1049, 1057 (D. Or. 2004) (finding evidence that supervisor made a sexual advance toward plaintiff, made comments generating at least 20 complaints from plaintiff, and was alleged to have ignored plaintiff's problems and prioritized problems of male employees was insufficient to raise a triable issue on hostile environment); Faragher, 524 U.S. at 788 (“We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment[.]”).
E. Whistleblower
Finally, defendant moves for summary judgment on plaintiff's eighth claim for relief, which alleges that defendant “discriminated and retaliated against [plaintiff] because of the reports made by [plaintiff]” in violation of O.R.S. 659A.199, and plaintiff's ninth claim for relief, which alleges that defendant retaliated against plaintiff based on her reports of “health and safety violations” in violation of O.R.S. 654.062. Compl. ¶¶ 124-143, ECF 1; see also Mot. Summ. J. 31-33, ECF 24.
O.R.S. 659A.199 “prohibit[s] employers from retaliating against an employee as a result of the employee's report of certain improper activities.” Hall v. State, 274 Or.App. 445, 451, (2015); see also Hughes v. Pac. Univ., No. 3:21-cv-00991-SI, 2023 WL 7497106, at *13 (D. Or. Nov. 13, 2023). To succeed on a state law whistleblower claim, a plaintiff must show that she engaged in “protected activity,” which means the employee “in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation. O.R.S. 659A.199. Plaintiff baldly asserts that her “complaints to . . . Ward and . . . Eckersell constitute protected activity.” Resp. 39, ECF 28. But she does not identify any specific statement she made that identified any “violation of state or federal law” to sustain such a claim. Accordingly, defendant is entitled to summary judgment on plaintiff's eighth claim for relief.
As for plaintiff's ninth claim for relief alleging retaliation for reporting health and safety violations, plaintiff has not made any argument or pointed to any evidence in the record to support such a claim. See Resp. 38-39, ECF 28. Therefore, defendant is entitled to summary judgment on plaintiff's ninth claim for relief as well.
RECOMMENDATIONS
Defendant's Motions to Strike (ECF 35) should be denied, and defendant's Motion for Summary Judgment (ECF 24) should be denied as to plaintiff's failure to accommodate claim under the Americans with Disabilities Act (Third and Fourth Claims) and Oregon Rehabilitation Act (Seventh Claim), but granted as to all of plaintiff's other claims.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, January 19, 2024. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.