Opinion
6:19-cv-00897-MK
05-06-2021
CHRISTINE DAUGHERTY, Plaintiff, v. DESCHUTES COUNTY, Defendant.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI (He / Him), United States Magistrate Judge
Plaintiff Christine Daugherty filed this action against Defendant Deschutes County, alleging gender discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e and its state law counterpart Or. Rev. Stat. (“ORS”) § 659A.030(1)(b); age discrimination in violation of 29 U.S.C. § 623(a)(1) and its state law counterpart ORS § 659A.030(1); and whistleblower retaliation in violation of ORS § 659A.203. See Compl. ECF No. 1. Before the Court is Defendant's motion for summary judgment on all counts or in the alternative partial summary judgment. See Def.'s Mot. Summ. J., ECF No. 17 (“Def.'s Mot.”); see also Def.'s Supplemental Mem., ECF No. 23; Def.'s Reply Supp. Mot. Summ. J. ECF No. 34 (“Def.'s Reply”). Plaintiff filed a response opposing the motion. Resp. Opp'n Def.'s Mot. Summ J., ECF No. 29 (“Pl.'s Opp'n”). For the reasons that follow, Defendant's motion should be GRANTED in part and DENIED in part.
The Court notes that Plaintiffs opposition does not include page numbers as required by local rule. See LR 10-1 (e) Pagination Requirements (“Every page of a pleading or other document (not including attachments or exhibits) must bear a footer with a brief description of the pleading or document and consecutive numbering at the bottom of the page.”). The Court's references therefore are to the page numbers as listed in the larger PDF at ECF No. 29.
BACKGROUND
Plaintiff worked as a Deputy in the Corrections Division of the Deschutes County Sheriffs Office from December 24, 2004, until she was terminated on May 1, 2017. Daugherty Decl. ¶ 1 ECF No. 30; Compl., Ex. C at 3, ECF No. 1-4; Def.'s Mot. 3; Laherty Decl. Ex. N at 69, ECF No. 18. Plaintiff grieved the termination and an arbitrator ordered her reinstatement in November 2017. Pl.'s Compl. Ex. C at 39, ECF No. 1-4. Several events going back as far as 2006 serve as the alleged cause for Plaintiffs termination and form the factual basis for Plaintiffs discrimination claims.
The Court notes that the accompanying exhibits to the Laherty Declaration are comprised of a single PDF spanning 92 pages. Accordingly, the Court's references to specific page numbers correspond to the page number of the PDF at ECF No. 18, rather than to page numbers of individual exhibits.
In April 2006, Plaintiff received a written reprimand for remarks made in a conversation with her colleague, Deputy Belding. Daugherty Decl. ¶ 4 ECF No. 30; Laherty Decl. Ex. A at 6, ECF No. 18. Plaintiff told Belding: “I thought you were pregnant but you're only big boned.” Id. Belding took offense, and Plaintiff received a written reprimand for violating a policy that prohibited employees from remarking on the personal characteristics of others. Id. Plaintiff did not challenge the reprimand. Laherty Decl. Ex. F at 39:9-10, ECF No. 18.
In January 2012, Plaintiffs performance evaluation indicated that she “me[t] standards” or “exceeded standards” in every category. Dugan Decl. Ex. 1, ECF No. 31-1.
In January 2014, Plaintiffs performance evaluation indicated that she “me[t] standards” or “exceeded standards” in every category. Dugan Decl. Ex. 2, ECF No. 31-2.
Approximately three months later, however, Plaintiff received a written reprimand after she accessed the Law Enforcement Data Systems (“LEDS”) database for personal reasons. Daugherty Decl. ¶ 5 ECF No. 30; Laherty Decl. Ex. B at 7, ECF No. 18. Specifically, Plaintiff requested information from the Oregon Department of Motor Vehicles relating to her personal vehicles. Id. Access to the database is exclusively for criminal investigations. Id. Plaintiff acknowledged the search violated department policy. Laherty Decl. Ex. F 40:3, ECF No. 18.
In early February 2015, Plaintiff was formally disciplined and suspended one day without pay for violating department policies when she viewed “[v]ideo visitations and phone calls for personal gain” and forwarded the information to a family member via “Facebook Messenger.” Laherty Decl. Ex. C at 8, ECF No. 18.
Approximately a week later, Plaintiff received her January 2015 performance evaluation, which indicated her performance was adequate in sixteen of eighteen categories. Dugan Decl. Ex. 3, ECF No. 31-3. However, the evaluation indicated that Plaintiff “require[d] improvement” in “adherence to policies and procedures” as well as her “judgment and decision”-making. Id. (capitalization altered).
In May 2016, Plaintiff received an additional written reprimand based on inappropriate interactions with inmates. Laherty Decl. Ex. D at 9, ECF No. 18. Her supervisor explained that her “communications with inmates [was] abrasive, argumentative, rude and discourteous.” Id. Plaintiff was also reprimanded for attempting to remove a lip piercing from an inmate's lip using a pair of un-sanitized pliers. Id. Plaintiff maintains that the inmate gave permission to have her lip piercing removed in such a fashion and that she was unaware that such action would violate any policy. Daugherty Decl. ¶ 7, ECF No. 30. Plaintiff did not grieve the written reprimand but disputed any wrongdoing on her part. Laherty Decl. Ex. F 44:8-15, ECF No. 18.
In October 2016, Plaintiff was the subject of an Internal Affairs (“IA”) investigation arising from an incident with a female arrestee suspected of cocaine possession. Dugan Decl. Ex. 9, ECF No. 31-9. A Bend police officer informed Plaintiff that the arrestee may have cocaine “on or in her person.” Id. Plaintiff conducted a strip search of the arrestee and observed a white object in the arrestee's vagina. Id.
The investigation noted that Plaintiffs supervisor, Deputy Forsell, did not recall Plaintiff relaying to him Plaintiffs observations of the arrestee. Dugan Decl. Ex. 9, ECF No. 31-9. Ultimately, the investigation found that Plaintiff should not have placed the arrestee in the holding cell without observation and that she should have immediately reported the situation to a supervisor. Dugan Decl. Ex. 9, ECF No. 31-9. Plaintiff disputes the findings of the IA investigation. She maintains that she disclosed her observations of the arrestee to Deputy Forsell. Dugan Decl. Ex. 8, ECF No. 31-8. She asserts the arrestee was placed in a holding cell and that she notified her supervisor within approximately fifteen to twenty minutes. Dugan Decl. Ex. 8, ECF No. 31-8.
Plaintiffs 2016 performance evaluation indicated her performance was adequate in seventeen of eighteen categories. Dugan Decl. Ex. 4, ECF No. 31-4. However, the evaluation noted that her “judgment and decision”-making “require[d] improvement.” Id.
Plaintiffs January 2017 performance evaluation noted that she “me[t] standards” in only twelve of eighteen categories. Dugan Decl. Ex. 5, ECF No. 31-5. Specifically, the evaluation noted that Plaintiffs “judgment and decisions” and “quality of work” were “not satisfactory.” Id. In “customer service, ” “teamwork, ” and “accepting responsibility, ” Plaintiff “require[d] improvement.” Id. That same month, Plaintiff complained about her supervisors in a peer review forms. McMaster Decl. ¶ 6, ECF No. 19.
In February 2017, Plaintiff was assigned to “booking” duties. On February 17, 2017, while Plaintiff was cleaning her area, Sgts. Marsh and Steward ordered Plaintiff to immediately process an inmate for discharge. Laherty Decl. Ex. K, ECF No. 18. Plaintiff continued to clean before ultimately processing the inmate for release. Daugherty Decl. ¶ 21 ECF No. 30.
Later that same day, Plaintiff was asked if security checks had been completed. Laherty Decl. Ex. K at 63, ECF No. 18. Plaintiff replied “partially” when none had in fact been completed. Id. While Plaintiff was assigned to booking, a female inmate had a medical emergency. Daugherty Decl. ¶ 23 ECF No. 30. Lt. Jernigan, Sgt. Gibson, and others assisted the inmate. Dugan Decl. Ex. 11, ECF No. 31-11. Lt. Jernigan asked Sgt. Gibson which female deputy would assist in transporting the female inmate to the hospital. Id. Sgt. Gibson told Plaintiff to go on the transport. Id. Plaintiff suggested that another female deputy go in her place because the other deputy had knowledge of the inmate's condition and because Plaintiff did not want to leave her post at the booking room. Daugherty Decl. ¶ 25 ECF No. 30. Lt. Jernigan asked if Plaintiff was going on the transport and Plaintiff responded, “Don't go there with me.” Daugherty Decl. ¶ 26 ECF No. 30.
On March 8, 2017, Sgt. Marsh asked Plaintiff to assist in performing a restraint check on an inmate. Laherty Decl. Ex. M, ECF No. 18. Plaintiff continued with the task she was working on at the time before assisting and suggested that Deputy Barin assist with the restraint check instead. Daugherty Decl. ¶ 29 ECF No. 30. This incident, as well as the February 17 incidents, were subject to an IA investigation in which Plaintiff was found to be in violation of Deschutes County Sheriffs Office policies. Laherty Decl. Ex. M at 67-68, ECF No. 18.
Plaintiff asserts that the IA investigation was biased because Lt. Jernigan was an both an investigator and a witness to the February 17, 2017 events, in which an inmate in medical emergency needed transporting. Pl.'s Opp'n 14-15. Defendant contends that Lt. Lutz conducted the aspects of the investigation relating to incidents in which Lt. Jernigan was involved. Pl.'s Compl. Ex. 3, ECF No. 1-3.
On April 2, 2017, Lt. Jernigan sent an email regarding the investigation to Lt. Lutz saying, “We need to talk. I need to gauge my findings.” Dugan Decl. Ex. 20, ECF No. 31-20.
On May 1, 2017, Sheriff Nelson terminated Plaintiff. Laherty Decl. Ex. N at 69, ECF No. 18. Plaintiff grieved the termination and on May 16, 2017, the grievance was denied. Pl.'s Compl. Ex. 3, ECF No. 1-3.
On June 1, 2017, Plaintiff was contacted by Drew Brosh regarding the complaints Plaintiff made against her supervisors in January 2017. Daugherty Decl. ¶ 30 ECF No. 30. Six days later, the Bend Bulletin published an article about the firings of Plaintiff and another deputy. Daugherty Decl. Ex. 2, ECF No. 30-2. The article disclosed a detailed account of the events occurring between 2006 and 2017. Id.
In late November 2017, pursuant to a collective bargaining agreement, an arbitrator ordered Plaintiff reinstated. Pl.'s Compl. Ex. 4, ECF No. 1-4. Upon reinstatement, Plaintiff was under the supervision of Sgt. Steward, who Plaintiff had an open IA complaint against at the time. Daugherty Decl. ¶ 34, ECF No. 30. Defendant maintains that no IA investigation against Sgt. Steward was open at the time, nor has Plaintiff ever made a complaint against Sgt. Steward that resulted in an IA investigation. McMaster Decl. ¶ 6 ECF No. 19. Defendant also maintains that Plaintiff was placed under Sgt. Steward's supervision because Sgt. Jernigan was involved in the events leading to Plaintiffs termination and Plaintiff had made a complaint against Lt. Van Der Zwiep. McMaster Decl. ¶ 7, ECF No. 19. Therefore, reinstatement under Sgt. Steward was the least problematic option. Id.
Plaintiff did not receive back pay after her reinstatement until March 2018. Daugherty Decl. ¶ 45 ECF No. 30. Defendant questioned whether unemployment benefits received while terminated should be deducted from the back pay. Laherty Decl. Ex. O at 71, ECF No. 18. The arbitrator issued a clarification order on February 19, 2018, ordering that unemployment benefits not be deducted from back pay. Id. Plaintiff learned from her union attorney that Defendant planned to reinstate Plaintiff under a probationary work plan similar to that of a new hire. Daugherty Decl. ¶ 37, ECF No. 30. Defendant maintains it considered “some form of corrective action” but “did not pursue the issue” and did not put Plaintiff on a probationary work plan. McMaster Decl. ¶ 5 ECF No. 19; Laherty Decl. Ex. F at 46:11-24 ECF, No. 18.
Plaintiff also makes other allegations from which she argues discrimination may be inferred. Plaintiff alleges she is the only female on a team of fifteen deputies. Daugherty Decl. ¶ 38 ECF No. 30. Plaintiff alleges that male employees get “PTO” pay when they do trainings, but Plaintiff does not get “PTO” pay when she trains deputies. Id. Plaintiff alleges that she has applied twice to be a “PTO” but was denied, and that her supervisor at the time, Lt. Van der Zwiep, said to her “you'll never be a PTO as long as I work here.” Daugherty Decl. ¶ 41, ECF No. 30.
On March 12, 2018, Plaintiff filed a complaint with the Oregon Bureau of Labor and Industries (“BOLI”). Laherty Decl. Ex. P at 72, ECF No. 18. Plaintiffs BOLI complaint was dismissed and Plaintiff received a “right to sue” letter on March 12, 2019. Pl.'s Compl. Ex. 2, ECF No. 1-2.
On November 28, 2017, Plaintiff provided Defendant a Tort Claim Notice. Laherty Decl. Ex. U at 92, ECF No. 18. The notice informed Defendant: (1) that Plaintiffs state law claims arose from the events that led to Plaintiffs termination on May 1, 2017; (2) that she learned that her January 2017 complaints against her supervisors were being investigated in June 2017; and (3) that Defendant made statements about her to the media. Id.
Plaintiffs 2019 performance review indicated that Plaintiff “me[t] standards” in all eighteen categories. Dugan Decl. Ex. 6, ECF No. 31-6.
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
DISCUSSION
Defendant moves to dismiss Plaintiff's gender and age discrimination claims, and her whistleblower claim. As to Plaintiff's gender discrimination claim, Defendant argues that she cannot demonstrate a prima facie case of discrimination because she cannot show she that she performed her job adequately, suffered an adverse employ action, or was treated differently than similarly situated male employees. And even if Plaintiff could so establish, Defendant had legitimate non-discriminatory reasons for its actions. Because the Court finds that Plaintiff successfully made a prima facie case, and that Defendant failed to supply legitimate non-discriminatory reasons for two allegedly adverse actions, summary judgment is not appropriate as to Plaintiff's gender discrimination claim. However, because Plaintiff failed to establish a prima facie case as to her age discrimination claim, summary judgment should be granted as to that claim. Finally, as to Plaintiff's whistleblower claim, she has successfully made out a prima facie case that she engaged in a protected activity, suffered an adverse employment action, and identified a sufficient causal link for two adverse employment actions. For the same reasons the Court finds with regard to Plaintiff's gender discrimination claim, the Court concludes that Defendant failed to supply legitimate non-discriminatory reasons for two allegedly adverse actions making summary judgment inappropriate as to Plaintiffs whistleblower claims.
I. Preliminary Matters
Before turning to the merits of Defendant's motion, the Court must resolve four preliminary matters: (A) Defendant's evidentiary objections; (B) the timeliness of Plaintiff s federal claims; (C) the timeliness of Plaintiff s state law claims; and (D) summary judgment standards in discrimination cases. The Court addresses each in turn.
A. Evidentiary Objections
Defendant raises several evidentiary objections in its reply brief. Def's Reply 2. Defendant objects to paragraphs 4, 7, 28, 31, 34, and 37 of Plaintiff s declaration on hearsay grounds; paragraphs 35, 39, 46 through 57, and exhibit 27 on relevancy grounds; and paragraphs 38, 44, exhibit 7, and exhibit 26 for lacking proper foundations. Id. at 2-3, ECF No. 34. Defendant also objects to the Dugan declaration exhibit 23 on relevancy and hearsay grounds; exhibit 25 on relevancy grounds; and exhibit 7 for lacking a proper foundation. Id. at 3, ECF No. 34. Although expressly permitted to do so by Local Rule, Plaintiff did not respond to Defendant's evidentiary objections. See LR 56-1(b) (“[i]f an evidentiary objection is raised by the moving party in its reply memorandum, the non-moving party may file a surreply memorandum [within] seven days”).
The Court declines to strike the objected to evidence from the record. This Court is fully capable of independently resolving evidentiary conflicts in the record and questions of admissibility. See Williams v. Ray Klein, Inc., No. 6:18-cv-00887-MK, 2020 WL 8919468, at *6 (D. Or. Sept. 29, 2020), adopted, 2021 WL 1082470 (D. Or. Mar. 19, 2021); see also Burch v. Regents of Univ. of California, 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006) (“[Objections to evidence on the ground that [the evidence] is irrelevant, speculative, and/or argumentative, or that it constitutes an improper legal conclusion are all duplicative of the summary judgment standard itself.”); JL Beverage Co., LLC v. Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016) (noting that “at summary judgment a district court may consider hearsay evidence submitted in an inadmissible form, so long as the underlying evidence could be provided in an admissible form at trial, such as by live testimony”). Accordingly, the Court is not bound by either party's characterization of the evidence and instead independently reviews the record and only considers evidence properly before it when determining whether summary judgment is appropriate.
Defendant's evidentiary objections are OVERRULED.
B. Timeliness of Plaintiffs Federal Claims
Defendant argues that Plaintiffs Title VII claims are barred to the extent they arise from events that occurred before May 16, 2017. Def's Mot. Summ. J. at 18, ECF No. 17. In Oregon, discrimination claims under Title VII must be filed within 300 days of the alleged unlawful employment practice because of work-sharing agreements between the EEOC and the relevant state agencies. See E.E.O.C v. Fred Meyer Stores, Inc., 954 F.Supp.2d 1104, 1113 (D. Or. 2013); See 42 U.S.C.2000e-5(e). Accordingly, only unlawful employment practices that occurred within the timely period are actionable. Pearson v. Reynolds Sch. Dist. No. 7, 998 F.Supp.2d 1004, 1019 (D. Or. 2014). With respect to disparate treatment and retaliation claims, actionable unlawful employment practices are discrete discriminatory acts. Id. Plaintiff filed a complaint with BOLI on March 12, 2018, therefore discriminatory acts which occurred before May 16, 2017-300 days before filing the BOLI complaint-are not actionable under Title VII. Laherty Decl. Ex. P at 72, ECF No. 18.
Claims brought under the ADEA are subject to the same limitations period. “Before bringing an ADEA claim, a plaintiff must file a charge with the Equal Opportunity Commission (or, where applicable, its state-law equivalent) within 180 days of the complained-of discrimination or, in a state like Oregon in which the complained of discrimination would contravene state law, within 300 days after the alleged unlawful practice occurred or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.” Cornell v. North Wasco County School Dist. No. 21, No. 3:10-cv-00964-PK, 2012 WL4599419 at *7 (D. Or. 2012) (citing 29 U.S.C. § 626(d)(1)). In other words, “complained of acts of discrimination are not actionable under the ADEA if they took place more than 300 days prior to the plaintiffs BOLI or EEOC charge.” Id.
Accordingly, the Court will limit its analysis to alleged discriminatory acts which occurred after May 16, 2017, in analyzing Plaintiffs Title VII and ADEA claims.
At oral argument, Plaintiff conceded that her argument regarding tolling her termination through the date her grievance was denied was foreclosed by Delaware State College v. Ricks, 449 U.S. 250, 101 (1980). See Hearing, ECF No. 36. Accordingly, the Court need not address the issue further.
C. Notice of Plaintiff's State Law Claims
Defendant asserts that Plaintiff failed to provide timely notice as required by ORS § 30.275. The Oregon Tort Claims Act (“OTCA”) requires parties to provide notice to public bodies and their employees of alleged injuries. ORS § 30.275. The OTCA's purpose is to allow “the public body to investigate the claim while the evidence is still fresh and allow the public body speedily to correct the defect, if any, out of which the claim allegedly arose.” Dunn v. City of Milwaukie, 270 Or.App. 478, 488 (2015). Regarding notice, the OTCA provides in relevant part:
No action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 (Definitions for ORS 30.260 to 30.300) to 30.300 (ORS 30.260 to 30.300 exclusive) shall be maintained unless notice of claim is given as required by this section.ORS § 30.275(1). For claims other than wrongful death, notice must be provided “within 180 days after the alleged loss or injury.” ORS § 30.275(2).
A plaintiff must also plead compliance with ORS § 30.275 . Urb. Renewal Agency of City of Coos Bay v. Lackey, 275 Or. 35, 40 (1976) (pleading and proof of notice is a mandatory requirement and a condition precedent to recovery under the OTCA); Brinkley v. Oregon Health Scis. Univ., 94 Or.App. 531, 537 (1988) (reversing trial court's denial of the defendant's motion to dismiss where the plaintiff failed to plead they gave notice as required by the OTCA). Plaintiff provided Defendant formal notice of her claims for damages on November 28, 2017, through a letter written by Plaintiffs counsel:
In compliance with ORS 30.275 formal notice is hereby given that claims for damages on her behalf will be made against Deschutes County and its departments, officers, employees, and/or agents resulting from her termination on or about May 1, 2017, and defamatory statements released to the public thereafter.
***
The state law claims against Deschutes County and its departments, officers, employees, and agents arise out of whistleblower retaliation, defamation, gender and age discrimination, and breach of contract.
***
So far as is known to the claimant, the time, place, and circumstances giving rise to the claim are that Ms. Daugherty's employment with the county was terminated on or about May 1, 2017. It was not until early June 2017 she became aware that an investigation underway regarding her pre-termination complaints about management and at that time she was first put on notice that her discharge may have been triggered at least in part by her whistleblowing activity.
In addition, the County released statements to the media thereafter regarding Ms. Daugherty which placed her in a false light and/or which were untrue and defamatory.Laherty Decl. Ex U, ECF No. 18; see also Compl. ¶ 27 (“[Plaintiff] sent a tort claim notice on this whistleblower claim November 28, 2017.”).
As such, events that transpired prior to June 1, 2017-which is 180 days before November 28-may not form the basis for Plaintiffs state law claims.
To the extent Plaintiff relies on events that were not included in her tort claim notice and Complaint, such instances are also not appropriately before this Court. See Pl.'s Opp'n 17-20; see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292-93 (9th Cir. 2000) (explaining that the “complaint guides the parties' discovery, putting the defendant on notice of the evidence it needs to adduce in order to defend against the plaintiffs allegations”).
D. Summary Judgment Standards for Discrimination Cases
1. The McDonnel Douglas Burden Shifting Framework
Disparate treatment and retaliation claims are subject to the McDonnell Douglas burden shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The analysis has three steps. The employee must establish a prima facie case of discrimination. Id. Where an employee is able to do so, the employer must then articulate a legitimate, non-discriminatory reason for the challenged action. Finally, where an employer satisfies this burden, the employee must show that the “reason is pretextual ‘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.'” Chuang v. Univ. of California Davis, Bd. of Trustees, 225 F.3d 1115, 1123-24 (9th Cir. 2000) (quoting Tex. Dep 't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
This burden shifting framework applies both to Plaintiffs Title VII claim as well as her claim under the ADEA. Coleman, 232 F.3d at 1281.
2. Evidentiary Standards
“Summary judgment is not appropriate if a reasonable jury viewing the summary judgment record could find by a preponderance of the evidence that the plaintiff is entitled to a verdict in his favor.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). Plaintiffs alleging employment discrimination “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.” Chuang, 225 F.3d at 1124 (internal quotation marks omitted); see also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004) (“In evaluating motions for summary judgment in the context of employment discrimination, we have emphasized 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.”).
3. Federal and State Claims Analyzed Concurrently
Finally, because “ORS 659A.030 is modeled after Title VII, ” the Court will analyze Plaintiffs federal and state law discrimination claims together. Pullom v. U.S. Bakery, 477 F.Supp.2d 1093, 1100 (D. Or. 2007); see also 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.”).
II. Gender Discrimination Claim
Under federal law, it is unlawful for an employer to discharge or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such an individual's sex, or to otherwise adversely affect the individual's status as an employee because of their sex. 42 U.S.C. § 2000e-2(a)(1)-(2); ORS § 659A.030(1)(b); see also Bostock v. Clayton Cty., Georgia, 140 S.Ct. 1731, 1739 (2020).
To establish a prima facie case of gender discrimination, a plaintiff must show (1) they are a member of a protected class; (2) they performed their job according to their employer's expectations; (3) they were subjected to an adverse employment action; and (4) they were treated differently from similarly situated individuals outside their protected class, or circumstances surrounding the adverse employment action would give rise to an inference of discrimination. Sherriff v. WinCo Foods, LLC, No. 08-cv-06401-AA, 2010 WL 4538111, at *3 (D. Or. Nov. 2, 2010).
A. Protected Class
The parties do not dispute the first element-that Plaintiff was a member of a protected class. Accordingly, Plaintiff has satisfied the first element of a gender discrimination claim under Title VII.
B. Adequate Job Performance
To establish the second element, Plaintiff must demonstrate that she was performing her job in accordance with her employer's expectations. “The Ninth Circuit characterizes this element as whether the plaintiff ‘adequately' performed her job, which ‘suggests a standard of less than perfect performance.'” Whitely v. City of Portland, 654 F.Supp.2d 1194, 1208 (quoting Moorehead v. Chertoff, 2008 WL 4810308, at *2 (W.D. Wash. Nov. 3, 2008). In order to satisfy this aspect of the prima facie case, a plaintiff may present evidence consisting of “positive performance reviews, admissions by the employer, or even expert testimony as to an employer's legitimate expectations for the job at issue.” Tornabene, 156 F.Supp.3d at 1243 (citation omitted); but cf Ochs v. Eugene Emeralds Baseball Club, Inc., No. 6:16-cv-01063-JR, 2017 WL 6329560, at *11-13 (D. Or. Sept. 5, 2017) (granting summary judgment on adequate job performance element where the district court found that the plaintiff did not perform their job according to their employer's expectations because they had been reprimanded several times for being disrespectful to fans, coworkers, and management), adopted, 2017 WL 6328159 (D. Or. Dec. 11, 2017), aff'd in part, rev'd in part and remanded, 774 Fed.Appx. 1026 (9th Cir. 2019) (affirming “the district court's grant of summary judgment on [the plaintiffs] employment discrimination claim that [the defendant] terminated her because of her sex.”).
Here, although an arguably close call, Plaintiff has sufficiently demonstrated that she was adequately performing her job to withstand summary judgment. On the one hand, Plaintiff was formally disciplined in April 2006 for making inappropriate comments to a colleague, in April 2014 for making an unauthorized LEDS inquiry for personal reasons, in February 2015 for viewing video of inmate visitation and disclosing the content of the video for personal reasons, and in May 2016 for attempting to remove a piercing from an inmate's lip with a pair of pliers. In October 2016, Plaintiff was the subject of an IA investigation for allegedly inadequately reporting her findings from a strip search of a female. Plaintiff was also the subject of an investigation relating to incidents in early 2017 in which Plaintiff did not follow directions from a supervisor.
On the other hand, Plaintiffs performance evaluations were generally positive throughout her long tenure with Defendant. Plaintiff earned positive marks in every category in her 2012 and 2014 evaluations. Dugan Decl. Ex. 1, ECF No. 31-1. Her 2015 evaluation was similarly positive in sixteen of eighteen categories. Dugan Decl. Ex. 3, ECF No. 31-3. And her 2016 evaluation indicated her performance was positive in seventeen of eighteen categories. Dugan Decl. Ex. 4, ECF No. 31-4. Although her 2017 evaluation indicated that she was not meeting standards in five out of eighteen categories, by 2019 she was again meeting standards in every category. Dugan Decl. Ex. 5, ECF No. 31-5; Dugan Decl. Ex. 6, ECF No. 31-6.
Viewing this evidence in the light most favorable to Plaintiff, the Court should find Plaintiff was performing her job adequately. Although Defendant strenuously argues that Plaintiffs “deficient performance in the several years prior to her termination” is fatal to her claim, the majority of Plaintiff s performance evaluations were overwhelmingly positive with the exception of the year she was terminated. As noted, demonstrating adequate performance does not require a perfect performance record. See Moorehead, 2008 WL 4810308, at *2 (“Defendant again cites no case law for the proposition that an employer has a ‘legitimate' expectation that an employee will never violate a job requirement.”) (emphasis in original).
C. Adverse Employment Action
To establish the third element, Plaintiff must identify adverse employment actions that Defendant subjected her to. Adverse employment actions may include any decision by an employer affecting “compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has held that discrimination in this context “not only covers ‘terms' and ‘conditions' in the narrow sense, but ‘evinces a congressional intent to strike at the entire spectrum of disparate treatment . . . in employment.'” Chuang, 225 F.3d at 1125 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998); see also Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000) (holding that for purposes of a Title VII retaliation claim, “an action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity”). Actionable adverse actions include “termination, demotion, failing to promote, denial of an available job, adverse job assignments, official discipline, and significant changes in compensation or benefits.” Davis, 520 F.3d at 1089.
As explained above, the Court has not considered potentially adverse employment actions that occurred prior May 16, 2017. Nevertheless, the record contains evidence of at least four potentially adverse employment actions that are sufficient to withstand summary judgment: (1) statements to the media about the events leading to Plaintiffs termination presumably sourced by Defendant, see Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997) (holding the retaliatory dissemination of a negative employment reference constitutes an adverse employment action); (2) Plaintiffs December 2017 reinstatement under the supervision of Sgt. Steward because team assignment and supervision are necessarily conditions of employment; (3) Plaintiffs potential reinstatement under a probationary plan similar to that of a new hire because such a work plan would affect the terms and conditions of Plaintiff s employment; and (4) Defendant's decision to withhold Plaintiffs back pay because it actually affected Plaintiffs compensation.
Defendant argues that Plaintiff cannot present evidence of the above events, but that assertion fails to account for Plaintiffs declaration, which is sufficient to raise issues of fact on each of the above potentially adverse employment actions. See Daugherty Decl. ¶¶ 46-47 (Bend Bulletin story with Sherriff Nelson's statements); ¶ 34 (placed under Sgt Steward's supervision upon reinstatement); ¶ 37 (probation performance improvement plan); ¶ 45 (back pay), ECF No. 31. On this record, a jury could reasonably conclude that any of the above actions taken by Defendant were adverse. See Chuang, 225 F.3d at 1125.
Like most declarations filed with the Court, the Daugherty Declaration contains numbered paragraphs. ECF No. 31. The numbering of the paragraphs after paragraph 45, however, is not sequential as numbers in the subsequent paragraphs to paragraph 45 begin numbering at 36, 37, 38, etc. For the sake of clarity, this Finding and Recommendation (“F&R”) treats the misnumbered paragraphs after 45 as if they were correctly numbered sequentially.
The Court briefly addresses Plaintiff's reliance on information learned from her attorney that Defendant “wanted to put [her] on a probation performance improvement plan” in the context of Defendant's hearsay objection. As noted above, “at summary judgment a district court may consider hearsay evidence submitted in an inadmissible form, so long as the underlying evidence could be provided in an admissible form at trial, such as by live testimony.” JL Beverage Co., LLC, 828 F.3d at 1110. The Court finds there is no reason that Plaintiff could not produce testimony from Plaintiff's Union attorney at trial and therefore will consider the evidence.
D. Similarly Situated
To establish the fourth element, Plaintiff must show that “others not in her protected class were treated more favorably.” Whitely, 654 F.Supp.2d at 1210 (quoting Aragon v. Republic Silver St. Disposal, Inc., 292 F.3d 654, 660 (9th Cir. 2002). In other words, Plaintiff must show that other employees-in this case male deputies-are similarly situated and were treated more favorably than she was. Id.
Defendant asserts that Plaintiff cannot produce any evidence that satisfies this element. Def.'s Mot. 19-20. Plaintiff has sufficiently raised an issue of fact sufficient to withstand summary judgment on this element. In her declaration, Plaintiff explained that, as the only female on her team, she was responsible for training new female deputies how to conduct pat down/searches. Daugherty Decl. ¶ 38, ECF No. 31. She further explained that when male deputies conducted similar trainings, the male deputies received “additional ‘PTO pay, '” but that she did not. This is sufficient to establish that other male employees were treated more favorably than Plaintiff. See Davis, 520 F.3d at 1090; see also Tornabene, 156 F.Supp.3d at 1244 (holding plaintiff showed a similarly situated employee was treated more favorably because when they were both accused of the same problematic conduct, their supervisor recommended that plaintiff be terminated but the similarly situated employee's employment contract be renewed).
Defendant provides no support for their argument that Plaintiffs “Non-Harassment Certification” precludes her from maintaining a Title VII claim based on gender discrimination simply because she “[n]ever indicated on the Non-Harassment Certification that she had been the victim of sexual harassment or discrimination.” Def.'s Mot. 20. The argument lacks merit and the Court declines to consider it further.
As such, Plaintiff has established a prima facie case of gender discrimination. See Davis, 520 F.3d at 1089 (“The requisite degree of proof necessary to establish a prima facie case for Title VII . . . claims on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.”).
E. Legitimate non-Discriminatory Reasons and Pretext
The next step in the McDonnell Douglas framework requires Defendant to offer “legitimate non-discriminatory reasons for the alleged disparate treatment.” Davis, 520 F.3d at 1091. As a threshold matter, Defendant's argument that Court may not consider events before May 16, 2017, is well taken, and the Court has not relied on any such events.
Of the four adverse employment actions discussed above, however, Defendant has presented legitimate, non-discriminatory reasons for only two. Defendant has not supplied a reason for disclosing the details of Plaintiff s employment to the media. Nor has Defendant given a reason for threatening to reinstate Plaintiff under a probationary work plan besides summarily denying either event transpired. Accordingly, summary judgment should be denied, and a jury should determine whether those allegedly adverse employment actions constituted gender discrimination.
Regarding Defendant's assertion that Defendant never threatened to impose a probationary work plan, the assertion is contradicted by Plaintiffs sworn declaration to the contrary. See supra n.5. Regarding Defendant's assertion that “Plaintiff can produce no evidence” to support her allegation that Defendant made statements to the negative media concerning Plaintiffs employment, that assertion too is flatly contradicted by the record including Sherriff Nelson's participation in an article in a local newspaper. Def.'s Mot. 29-30; see Daugherty Decl. ¶¶ 36-37; id. Ex. 27, ECF No. 31. Accordingly, the Court should find that these factual disputes are not legitimate non-discriminatory reasons under McDonnell Douglas, and that summary judgment is therefore not the appropriate vehicle for resolving these conflicts.
As to Plaintiffs supervision under Sgt. Steward and withholding Plaintiffs back pay, Defendant has offered legitimate non-discriminatory reasons for its actions. Defendant asserts that it reinstated Plaintiff under Sgt. Steward essentially because that was the least problematic option given that Plaintiff had a prior history of complaints or discipline under other potential supervisors. Def.'s Mot. 30. Defendant asserts that delay in back pay was the result of “uncertainty” around the arbitrator's order reinstating Plaintiff. Id.
Once an employer provides legitimate non-discriminatory reasons for the adverse employment actions, the employee “may offer evidence, direct or circumstantial, ‘that a discriminatory reason more likely motivated the employer' to make the challenged employment decision.” Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (citation omitted). Alternatively, an employee may offer evidence “that the employer's proffered explanation is unworthy of credence.” Id. Employees may rely on both circumstantial and direct evidence because “[defendants who articulate a nondiscriminatory explanation for a challenged employment decision may have been careful to construct an explanation that is not contradicted by known direct evidence.” Id. at 1029; see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100 (2003).
Here, Plaintiff has not proffered any argument or evidence that Defendant's reason for reinstating her under Sgt. Steward and withholding her backpay was unworthy of credence or pretextual other than broadly asserting that a “reasonable jury could find the allegations that she was failing on the job were pretextual and overstated, and do not overcome the evidence that defendant chose to single her out for discipline after deciding she was uppity and a trouble maker.” Pl.'s Opp'n 21. Summary judgment should be granted for Defendant as to those issues.
In sum, Defendant's motion for summary judgment should be DENIED as to Plaintiffs claim that she was discriminated against on the basis of her gender when Defendant disclosed the details of her employment to the media and threatened to reinstate her under a probationary work plan in violation of Title VII and its Oregon state law counterpart but GRANTED in all other respects.
III. Age Discrimination Claim
The ADEA makes it unlawful for an employer to discharge any individual or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's age; and to limit, segregate, or classify employees in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age. 29 U.S.C. § 623(a)(1)-(2); see also ORS § 659A.030(1).
The elements of an age discrimination claim are similar to the elements of a Title VII claim and require a plaintiff to establish: (1) they are a member of the protected class (at least age 40); (2) they were performing their job satisfactorily; (3) they were discharged; and (4) they were replaced by substantially younger employees with equal or inferior qualifications. Coleman, 232 F.3d at 1281. As noted, the McDonnell Douglas burden shifting framework applies Plaintiffs age discrimination claim. Id.
Significantly, Plaintiff does not meaningfully attempt to establish any of the above elements. See Pl.'s Opp'n 21. However, because Plaintiffs discharge is barred from the Court's consideration, see supra Section I.B, Plaintiff cannot establish a prima facie case of age discrimination because she cannot establish one of the necessary elements.
Defendant's motion should be GRANTED as to Plaintiffs age discrimination claim.
IV. ORS § 659A.203 Whistleblower Claim
Plaintiffs final claim is for whistleblower retaliation in violation of Oregon state law. Oregon public employees who engage in certain disclosures are entitled to protection under the state's whistleblower protection statute. See ORS § 659A.203. As relevant here, that statute makes it an unlawful employment practice for a public employer to:
Prohibit any employee from disclosing, or take or threaten to take disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of:
(A) A violation of any federal or state law, rule or regulation by the state, agency or political subdivision; [or]
(B) Mismanagement, gross waste of funds or abuse of authority or substantial and specific danger to public health and safety resulting from the action of the state, agency or political subdivision[.]ORS § 659A.203(b). The statute also makes it unlawful for a public employer to “[d]iscourage, restrain, dissuade, coerce, prevent or otherwise interfere with disclosure or discussions described in this section.” ORS § 659A.203(1)(d).
Courts in this district have held that to establish a prima facie case under the statute, a plaintiff must show that they (1) engaged in a protected activity, (2) suffered an adverse employment decision, and (3) there was a causal link between the protected activity and the adverse employment decision. White v. Taylor, No. 6:18-cv-00550-MK, 2020 WL 5649629, at *13 (D. Or. July 2, 2020), adopted, 2020 WL 5649725 (D. Or. Sept. 22, 2020) (citing Lindsey v. Clatskanie People's Util. Dist, 140 F.Supp.3d 1077, 1091 (D. Or. 2015)).
A. Protected Activity
The Court first examines whether Plaintiff engaged in protected activity. Defendant does not explicitly argue that Plaintiff has not engaged in such activity. However, Plaintiff asserts that she “twice reported wrongdoing by her supervisors.” Pl's Opp'n 22. Her briefing, however, fails to cite to evidence in the record in support of her assertion other than generally referencing “the factual background” section of her opposition. Presumably, the references are to “peer review sheets” Plaintiff alleges she completed “regarding [her] supervisors” in 2016 and 2017, which Plaintiff did briefly address in the factual background section of her opposition. Pl.'s Opp'n 11; see also Daugherty Decl. ¶¶ 12-13, ECF No. 30.
“To qualify for whistleblower protection, a disclosure or report must reveal, to either an internal or external department, agency, or other authority, previously unknown information about employer misconduct.” Biggs v. City of St. Paul, No. 6:18-cv-00506-MK, 2019 WL 4575839, at *12 (D. Or. Mar. 7, 2019), adopted, 2019 WL 4544268 (D. Or. Sept. 18, 2019). On this record, Plaintiff has sufficiently raised a question of fact as to whether she engaged in a protected activity. A jury could reasonably find that the contents of her “peer review sheets” sufficiently revealed to her employer information previously unknown about her supervisors misconduct.
B. Adverse Employment Action
Defendant argues that Plaintiff cannot establish that she suffered an adverse employment action. Def's Mot. Summ. J. ECF No. 17. Plaintiff asserts, without citation to specific evidence, that she “has presented a prima facie case” for her whistleblower claim. Pl.'s Opp'n 22.
To qualify as an adverse employment action, the action need not be severe. Coszalter v. City of Salem, 320 F.3d 968, 975 (9th Cir. 2003). Rather, the severity of the action ultimately “goes to the issue of damages, not liability.” Aichele v. Blue Elephant Holdings, LLC, 292 F.Supp.3d 1104, 1111 (D. Or. 2017) (citation omitted). For purposes of ORS § 659A.203, adverse employment actions include increased scrutiny. See Meyer v. State, 292 Or.App. 647, 679-81, 426 P.3d 89 (finding causation where “reasonable factfinder could conclude that the . . . investigation, . . . placement on paid administrative leave, the disciplinary letter imposing increase supervision, and the release of the . . . report to the media could well dissuade a reasonable worker from making or supporting a charge of discrimination”) (emphasis added). The degree of proof needed to establish a prima facie case is minimal, and a plaintiff need only prove an inference of discrimination. Davis v. Tri-County Metro. Transp. Dist. of Or., 45 F.Supp.3d 1222, 1241 (D. Or. 2014) (internal citations omitted).
For the reasons explained supra in Section II.A.2, Plaintiff has sufficiently alleged four events from which a jury could reasonably conclude that she suffered an adverse employment action: (1) Defendant's contribution to the June 7, 2017 the Bend Bulletin article; (2) Plaintiff's December 2017 reinstatement under Sgt. Steward; (3) Plaintiff learning that her reinstatement could potentially be similar to that of a probationary plan new hire; and (4) the withholding of Plaintiffs back pay.
Specifically, as it relates to her whistleblower claim, Plaintiff argues the Court may consider her May 1, 2017 termination despite the fact it falls outside tort claim notice's 180-day window because she did not learn that her January 2017 complaints about her supervisor potentially implicated her termination. Pl.'s Opp'n 21-22. In support of this argument, Plaintiff cites Neighorn v. Quest Health Care, in which Judge Clarke explained that ORS § 659A.203 only required that a plaintiff “subjectively believe that [the defendant] was violating state and federal law.” 870 F.Supp.2d 1069, 1102 (D. Or. 2012). The Court agrees with Plaintiffs characterization of Neighorn generally, but the case does not otherwise enlarge the timeframe outlined in the OTCA. The reasonable belief standard in ORS § 659A.199(1), and at issue in Neighorn, relates to the illegality of the information reported, not as to when a plaintiff forms a belief they were retaliated against. As such, the Court should not consider Plaintiffs termination as it relates to adverse employment actions for Plaintiffs whistleblower claim.
C. Causal Link
Finally, Defendant argues that Plaintiffs whistleblower claim fails because she cannot demonstrate a causal link between her protected activity and her discharge. To show a causal link between the adverse employment decision and the protected activity, a plaintiff must show that their protected activity was a substantial motivating factor in the adverse employment decision, and that “but for” her protected activity, the adverse action would not have been taken. Biggs, 2019 WL 4575839, at *12 (citation omitted).
Plaintiff has presented sufficient evidence to create a genuine issue of material fact as to whether a causal link between her protected activity and the adverse employment actions listed above. Scruggs v. Josephine County Sheriff's Dep 't, No. 06-cv-06058 CL, 2008 WL 608581, at *12 (D. Or. Mar. 4, 2008) (denying summary judgment on causal link element and noting that “[t]he causal connection is typically based on proximity in time between the protected activity and the employer's action, coupled with attending circumstances that suggest something other than legitimate reasons for the temporal tie”) (quoting Portland Association of Teachers v. Multnomah School District No. 1, 171 Or.App. 616, 625 (2000)).
As such, Plaintiff has established a prima facie case under ORS § 659A.203 and the burden now shifts to Defendant to articulate legitimate non-retaliatory reasons for its actions. See Davis, 520 F.3d at 1089; Scruggs, 2008 WL 608581, at *11 (noting that the “Oregon district court has applied the standards for a Title VII retaliation claim to claims under the Oregon Whistle Blower Act”).
D. Legitimately non-Retaliatory Reasons and Pretext
As noted supra in Section II.E, Defendant presented legitimate, non-discriminatory reasons for reinstatement under the supervision of Sgt. Steward and withholding Plaintiffs backpay. Because Plaintiff did not meaningfully contest those stated reasons, summary judgment should be granted for Defendant. However, for the same reasons noted supra in Section II.E, summary judgment is not appropriate with regard to Defendant's disclosure of the details of Plaintiffs employment to the media as well as allegedly threatening to reinstate Plaintiff under a probationary work plan and summary judgment should be denied as to those issues.
In sum, Defendant's motion for summary judgment should be DENIED as to Plaintiffs claim that she was retaliated against for making a protected disclosure when Defendant disclosed the details of her employment to the media and threatened to reinstate her under a probationary work plan in violation of ORS § 659A.203 but GRANTED in all other respects.
RECOMMENDATION
For the reasons above, Defendant's motion for summary judgment (ECF No. 17) should be GRANTED in part and DENIED in part as follows: Plaintiffs gender discrimination and ORS § 659A.203 whistleblower claims should be allowed to proceed on the two adverse employment actions identified in this F&R. Plaintiff's age discrimination claim should be DISMISSED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed. R. Civ. P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).