Opinion
Civil No. 99-345-AS
September 27, 2000
FINDINGS AND RECOMMENDATION
The matter before the court is the motion (#53) of defendant Tektronix, Inc., an Oregon corporation ("Tektronix"), for summary judgment pursuant to Fed.R.Civ.P. 56.
BACKGROUND
On March 11, 1999, plaintiff Sue Margolis ("Margolis") brought this action, alleging sex discrimination in the workplace under 42 U.S.C. § 2000e and state claims for sex discrimination and wrongful discharge. Margolis alleges she was discriminated in one or more of the following ways: discriminatory assignments; discriminatory staff and management support; belittling treatment; and/or discriminatory and/or retaliatory layoff.
FACTS
Tektronix hired Margolis as a Software Engineer Manager I in Tektronix's Measurement Business Division ("MBD") on September 14, 1983. In July 1997, Margolis was moved to a product management position by her supervisor, Bruce Blair ("Blair"). Whether she was then labeled an "engineer" or an "engineering manager" remains in dispute. The parties agree Margolis acted in a management capacity.
Sales forecasts showed a drastic downturn in business for MBD and on July 14, 1998, MBD management sent a memorandum to employees describing the unexpected business decline. On July 28, 1998, Blair processed a Personnel Change Notice to change Margolis's job title from Manufacturing Engineer IV to Manufacturing Engineering Manger I. The lateral transfer was "to reflect [the] job being done." Personnel Change Notice (attached to Exh. 17 to Plaintiff's Concise Statement of Facts).
On September 15, 1998, Human Resources ("HR") issued a memorandum stated that MBD would reduce its workforce by seven percent (approximately 90 regular employees) through voluntary layoffs. When the number of voluntary layoffs proved insufficient, managers were required to review their employees and make recommendations for involuntary layoffs. On October 19, 1999, Margolis, Blair, and other managers met to discuss the process of selecting individuals for involuntary layoff and to discuss rating their reports using matrices to list critical skills. Margolis created matrices for her reports by dividing them into job groups, pursuant to the layoff policy and instructions from HR. There were two general sets of job groups: engineers and technicians. Separate matrices were created for each group, with Margolis rating employees on each matrix in each critical skill area, totaling the ratings. Margolis, Blair, and other managers met again on October 20, 1998, to provide their recommendations for layoffs of non-management employees.
Blair created a matrix listing each of the managers reporting directly to him, identifying the critical skills necessary for the success of his manager group and rating each manager in each skill set. There were seven categories: leadership, vision setting; innovation, problem solving; setting and meeting commitments; people development; functional discipline development; teamwork, issue resolution; and manufacturing and business skills. Each category was ranked from 1 to 10, with 10 being the highest score. Based on the scores, Blair recommended Al Lavalle ("Lavalle"), a male, and Margolis be laid off. Margolis received a score of 39 and Lavalle received a score of 35. Ann Witowski, a female manager, received a score of 58. The highest score was 60. Blair also created a list of 25 people in his department, including Margolis, to be laid off.
Margolis was laid off on January 8, 1999. Margolis admits that Blair never said or did anything to Margolis that constitutes harassment of any kind based on gender, nor did anyone suggest to Margolis that Blair's decision was based on her gender.
STANDARDS
Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party may discharge this burden by showing that there is an absence of evidence to support the nonmoving party's case. Id. When the moving party shows the absence of an issue of material fact, the nonmoving party must go beyond the pleadings and show that there is a genuine issue for trial. Id. at 324.
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Reasonable doubts concerning the existence of a factual issue should be resolved against the moving party. Id. at 630-31. The evidence is to be viewed in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). No genuine issue for trial exists, however, where the record as a whole could not lead the trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
CONTENTIONS OF THE PARTIES
Tektronix contends no one discriminated against Margolis because of her gender and she was never treated differently than her male co-workers. Tektronix contends Margolis cannot establish any adverse action was pretextual. Margolis contends she has established a prima facie case of discrimination and Tektronix's proffered reason for terminating her is pretextual.
For the state claims, Tektronix contends the retaliation claims should be dismissed because Margolis cannot show she was engaged in a protected activity or a causal link to her termination. For the wrongful discharge claim, Tektronix contends the claim is without merit because Margolis did not oppose any unlawful conduct and any opposition she did engage in was unrelated to the reasons for her layoff. Margolis withdraws her federal and state retaliation claims as well as her common law wrongful discharge claim.
DISCUSSION
It is an unlawful employment practice, under 42 U.S.C. § 2000e, for an employer to discharge or otherwise discriminate against someone because of that person's gender. The Oregon statutory counterpart, ORS 659.030(1)(a)-(b), can be analyzed together with the federal claim. See Heller v. EBB Auto Co., 8 F.3d 1433, 1437 n 2 (9th Cir. 1993); Winnett v. City of Portland, 118 Or. App. 437, 442, 847 P.2d 902 (1993). A common way for a disparate treatment plaintiff to establish an inference of discrimination is to meet the McDonnell Douglas requirements — that is a plaintiff must show that (1) she is a member of a protected class, (2) she was performing her job in a satisfactory manner, (3) she suffered an adverse employment action and (4) similarly situated nonprotected employees received more favorable treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817 (1973); Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). When termination through a reduction in force is involved, plaintiff must establish: "(1) that she belongs to a protected class; (2) that she was discharged from a job for which she was qualified; and (3) that others not in her protected class were treated more favorably." Washington v. Garrett, 10 F.3d 1421, 1434 (9th Cir. 1993).
As a woman, Margolis is a member of a protected class. Therefore, the court must first determine whether she was performing her job in a satisfactory manner. Defendant provides several examples supporting its contention that Margolis, when compared with her peers, rated at a level which was unsatisfactory and which was the reason for her dismissal. Forced to terminate employees because of cutbacks, Margolis's manager, Blair, analyzed the critical skills of his managers, scoring them from 1 to 10, with 10 being the highest score.
Although Blair admits Margolis was the strongest performer in her understanding of software systems, databases, and software contract management, he graded her quite low in the following areas: leadership, vision setting (5); innovation, problem solving (5); setting and meeting commitments (7); people development (5); functional discipline development (5); teamwork, issue resolution (5); and manufacturing and business skills (7). Additionally, Tektronix relates problems with Margolis and her conflicts with co-workers and attempts to take over the projects of others.
Margolis asserts that she had a long and unblemished work record; however, she has presented no evidence, other than her own subjective opinion, that she was performing at a high level in comparison with her peers and in light of the upcoming layoff. Margolis admits that, "In this case, Plaintiff does rely solely upon her personal beliefs." Pl's Memorandum in Opposition to Def's Motion for Summary Judgment, p. 23. "An employee's subjective personal judgments of her competence alone do not raise a genuine issue of material fact." Bradley v. Harcourt, Brace and Company, 104 F.3d 267, 270 (9th Cir. 1996) citing Schuler v. Chronicle Broadcasting Co., Inc., 793 F.2d 1010 (9th Cir. 1986). Margolis has failed to establish that she was performing her job satisfactorily under the circumstances and, consequently, has failed to establish a prima facie case of discrimination.
Additionally, the court finds that Margolis has failed to establish the final element of McDonnell Douglas: that similarly situated nonprotected employees received more favorable treatment than Margolis. Margolis argues that a male manager, Butch Berquist ("Berquist"), should not have been retained, because, based on her opinion, she was more innovative, productive, and better at meeting commitments than Berquist. Another manager, Scott Parker ("Parker"), opined Berquist's leadership skills were lower than those of Margolis, although Parker admits he did not manage either person and that he had not worked closely with either person for three or four years. Similarly, Margolis believes another male manager, Doug Reynolds ("Reynolds") was doing questionable work. Finally, Margolis contends less educated male Manufacturing Engineer IV's were wrongly retained by Tektronix as they did not have the master's degree and coursework for a Ph.D., as did Margolis.
With the exception of the testimony of Scott Parker that Margolis was more qualified that Berquist, whom he admittedly was not qualified to review, Margolis's sole evidence that Berquist and Reynolds were less qualified than she is her own belief or opinion that she was a better employee than them. As noted above, a plaintiff's subjective opinions on her qualifications for a position do not create a genuine issue of material fact. As for the comparison to less educated engineer's, it is clear from the record that Margolis was properly compared with other managers for the matrix because she has admitted she was working in a management capacity. Consequently, a comparison between Margolis and the engineers is not relevant.
CONCLUSION
Because Margolis withdraws her federal and state retaliation claims as well as her common law wrongful discharge claim, and because Margolis has failed to establish a prima facie claim for sex discrimination, the motion (#53) of defendant Tektronix for summary judgment should be GRANTED in its entirety.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due October 12, 2000. If no objections are filed, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than October 26, 2000. When the response is due or filed, whichever date is earlier, the Findings and Recommendation(s) will be referred to a district court judge and go under advisement.