Opinion
Civil No. 01-1103-JO.
February 4, 2002
Glenn N. Solomon, Sona Jean Joiner, Attorney at Law, Portland, OR., Attorneys for Plaintiff.
Jeffrey M. Kilmer, Pamela J. Stendahl, KILMER VOORHEES LAURICK Portland, OR., Attorneys for Defendant.
OPINION AND ORDER
Plaintiff Charlene Heffler brings this employment discrimination action against her employer, defendant Freightliner, alleging claims for sex discrimination under Title VII, 42 U.S.C. § 2000e et seq, and Oregon law, ORS 659.030(1)(b).
The case is before the court on defendant's motion for summary judgment (# 12). Having reviewed the parties' submissions and for the reasons stated below, I conclude that defendant's motion is well-taken and should be granted.
FACTUAL BACKGROUND
The following background summary is derived from the parties' concise statements of material facts. Plaintiff has worked for Freightliner since 1992, and works in the machine shop at the parts manufacturing plant. She is considered to be a valuable employee. Before the events in question, she had worked as a temporary foreman on two separate days, once in 1998 and once in 1999.
Each shift has a foreman. Each shift also has an informal position known as "temporary back-up foreman," who steps in when the foreman is out for whatever reason. On such occasions, the person acting as foreman receives a 10 percent pay premium. The temporary back-up foreman potentially is eligible for a foreman position, should one become open.
In May 2000, the back-up foreman on plaintiff's shift, swing shift, decided to leave the company. One of plaintiff's supervisors, Kevin Cadieux, asked her if she would be interested in the position. She was, and he sent around an e-mail notice to the effect that she would be the new back-up foreman. Three days later Cadieux informed plaintiff that her selection had not been approved by his supervisors.
Defendant explains the reason why Cadieux's selection of plaintiff was not approved as follows. The regular foreman was scheduled to leave on a three-week vacation shortly after termination of the then current back-up foreman. Bruce McFarlane (production manager) and Steve Farrow (McFarlane's assistant) believed that plaintiff's limited experience would create unnecessary risks of disruption during the foreman's three-week absence, which is a long period of time in terms of parts production. Consequently, they selected an experienced foreman from another shift to act as back-up foreman.
There is also evidence in the record that plaintiff had personal conflicts with fellow workers in the past and had been involved in "widely-known personal, intimate relationships with her foreman and with one of the plant supervisors," which suggested a potential for accusations of preferential treatment. See Defendant's Memorandum of Law, p. 3 and Exhibit A.
STANDARD
Summary judgment should be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). If the moving party shows that there are no genuine issues of material fact, the non-moving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of America v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir. 1989).The substantive law governing a claim determines whether a fact is material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 630 (9th Cir. 1987). Reasonable doubts as to the existence of a material factual issue are resolved against the moving party. T.W. Elec. Service, 809 F.2d at 631. Inferences drawn from facts are viewed in the light most favorable to the non-moving party. Id. at 630-31.
DISCUSSION
Defendant does not dispute plaintiff's prima facie case, nor does plaintiff dispute that defendant has articulated a legitimate, non-discriminatory reason for its decision. Consequently, defendant's motion and this opinion focus only on the third step of the McDonnell Douglas burden-shifting analysis, that is, on plaintiff's burden to show pretext.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To show pretext at the summary judgment stage, plaintiff must either (1) offer direct evidence of discriminatory motive; or (2) offer specific, substantial evidence of pretext, i.e., "that the employer's proffered motives were not the actual motives because they are inconsistent or otherwise not believable." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-21 (9th Cir. 1998). Specifically, to survive summary judgment plaintiff must produce enough evidence to allow a reasonable factfinder to conclude either: (1) that the alleged reason for the decision was false; or (2) that the true reason for the decision was a discriminatory one. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996).
In this case, plaintiff offers both direct and circumstantial evidence of pretext. An examination of that evidence, however, demonstrates that it is insufficient to sustain her burden of proof.
1. Direct evidence: Plaintiff relies on the following deposition testimony as "direct" evidence of discriminatory motive. John Rader hired plaintiff in March 1992. He testified in deposition about comments made by Mark Moseley, a manager at the time plaintiff was hired in 1992, as follows:
Q. [T]ell me * * * what Mark Moseley said about why she was not [paid the starting rate Rader recommended]. * * *
A. Word for word, I couldn't give you word for word. It's been too long. All I know is that he told me that basically with her salary that she had before she came there, she wouldn't be too much below that, and she'd get up to it, and besides, that, "She's a woman. It's the best job she'll ever have."
Q. He made that comment?
A. He made that comment. Again, I don't know whether he was kidding or not, but, you know.
Deposition of John Rader, p. 36 ("Rader Depo.," Exhibit 3 to Defendant's Memorandum in Support of Motion for Leave to Supplement Record). Rader further testified that within two and one half years, plaintiff was making the top rate for her position. Rader Depo., p. 37.
Plaintiff contends that Rader's testimony shows that defendant "originally hired her below market value because of her sex." Plaintiff's Opposition, p. 2. Whether that inference can or should be made, however, the evidence is insufficient to establish pretext. Notably, Moseley made the comment in 1992, eight years before defendant's May 2000 decision not to select plaintiff as back-up foreman. The evidence also shows that Moseley left the parts plant in 1993 and was not involved in the challenged decision. Morever, Rader testified that Moseley's comment might have been a joke. Thus, Moseley's comment falls squarely within the rule that "stray remarks" "uttered in an ambivalent manner" that are "not tied directly" to the employment decision at issue are insufficient to withstand summary judgment. Godwin, 150 F.3d at 1221; see also Nidds v. Schindler Elevator Corp., 113 F.3d at 918-19 (employer's "old timers" comment was ambivalent and not tied to termination and thus insufficient to establish age discrimination); Simmons v. OCI-USA, Inc., 174 F.3d 913, 915-16 (8th Cir. 1999) (one-time use of term "Buckwheat" and one-time repeat of racial joke two years before adverse employment decision insufficient to establish race discrimination).
2. Circumstantial evidence: Plaintiff's circumstantial evidence of pretext is as follows. Normally, the back-up foreman comes from within the shift in which the need occurs, not from some other shift as happened here. The back-up foreman usually is a person who is also a trainer; in this case, plaintiff was the "best" trainer. Plaintiff argues that defendant's failure to follow past practices implies an improper sex-based motive in defendant's failure to select her.
Defendant does not dispute the above "normal" practice, but offers unrebutted evidence demonstrating that the situation in May 2000 was not normal. The regular back-up foreman suddenly announced he was leaving the company just before the regular foreman was scheduled to leave on a three-week vacation. According to defendant, the decision to select someone other than plaintiff "was fundamentally founded on the risks to production of putting an inexperienced person in a foreman's job for three weeks, and the managers' belief that [Art] Moe could better insure continued efficient production in light of his experience." Defendant's Reply, p. 6.
The question, thus, is whether plaintiff has presented "specific, substantial evidence of pretext," Godwin, 150 F.3d at 1221; that is, whether she has "created a triable issue with respect to whether the employer intended to discriminate on the basis of sex." Id. at 1222. The Ninth Circuit decision in Nidds, supra, provides an example of what evidence is not sufficient to demonstrate pretext. In Nidds, the defendant employer presented evidence that the reason for plaintiff's lay-off was a downturn in business. To show pretext, plaintiff presented evidence that there was no downturn in work in defendant's service division, where plaintiff worked. Defendant, in turn, demonstrated that the downturn was in its construction division, and that defendant's practice was to shift its best employees from construction to service to avoid losing them and to lay off employees — like plaintiff — from service to compensate. In affirming the district court's grant of summary judgment in favor of the defendant, the Ninth Circuit held that plaintiff's evidence failed to call into question the veracity of the employer's explanation or support an inference of age discrimination. Nidds, 113 F.3d at 918-19.
Plaintiff's evidence in this case similarly fails. She has not established that defendant's explanation is not credible, nor has she submitted evidence from which a reasonable factfinder could find that the true reason for defendant's decision was a discriminatory one. Consequently, defendant is entitled to summary judgment.
CONCLUSION
Defendant's motion for summary judgment (# 12) is GRANTED and this action is dismissed. Any other pending motions are denied as moot.