Opinion
No. Civ. 00-302.
April 20, 2001.
Kevin T. Lafky, Salem, OR, for Plaintiff.
Hardy Myers, Attorney General, Patricia Bridge Urquhart, Assistant Attorney General, Department of Justice, Salem, OR, for Defendants.
OPINION AND ORDER
Plaintiff Mahvash Menzie brings this employment-related action against defendants State of Oregon Department of Transportation (ODOT) and three present or former ODOT employees, Dan Wright, Darcy Michaelson, and Mike Walden. I grant defendants' motion for summary judgment on all claims.
BACKGROUND
Menzie, who was born in Iran, was employed by ODOT from June 1985 until her resignation in December 2000. On July 16, 1999, Menzie filed a BOLI charge asserting that, because of her gender, she was not selected for an "Incident Response" training course in 1999. Menzie also alleged that:
During most of that time, her last name was Yarnell.
BOLI is the Oregon Bureau of Labor and Industries. A BOLI charge is the equivalent of an EEOC charge.
Management has repeatedly failed to give me opportunities for training, or lead responsibilities that I have requested, both of which would improve my chances for later promotion. Earlier examples are that I was denied the opportunity to be responsible for guardrails, and also, I was denied budget training when it was held in Eugene. Male coworkers were chosen instead."
In the BOLI charge, Menzie asserted that this was a "continuing violation" but provided no other dates or details. After receiving a right-to-sue letter, Menzie filed this action on February 29, 2000.
The Complaint in this action includes several allegations of discrimination that were not mentioned in the BOLI charge, some dating back almost ten years. Although the BOLI charge was premised solely upon gender discrimination, the Complaint also alleges discrimination based on race and national origin. Judge Haggerty previously adopted my recommendation and dismissed Menzie's Title VII claims alleging race and national origin discrimination, because Menzie had failed to include those allegations in her BOLI charge. Menzie's Title VII claims against the individual defendants also were dismissed because the employer is the only proper defendant in a Title VII action. Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir 1993).
For similar reasons, Menzie's parallel state law claims against the individual defendants, under ORS 659.030(b), also were dismissed. Menzie's ORS 659.030(b) claim against ODOT, and her state law claims for intentional infliction of emotional distress (IIED), were dismissed because ODOT invoked the Eleventh Amendment.
Although the IIED claims were against the individual defendants, the Oregon Tort Claims Act requires that the state be substituted as the only defendant when the tort allegedly is committed by a state employee acting within the course and scope of his or her employment. ORS 30.265(1). However, the claims against the state are then barred by the Eleventh Amendment, unless that defense is waived (which did not occur here).
Accordingly, what remains of this case is (1) a Title VII claim against ODOT, for gender discrimination, (2) a 42 U.S.C. § 1981 claim against the individual defendants alleging discrimination on the basis of national origin, and (3) a 42 U.S.C. § 1983 claim against the individual defendants alleging discrimination on the basis of gender, national origin, or ethnicity.
LEGAL STANDARDS
The court should grant summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. FRCP 56(c). If the moving party shows that there are no genuine issues of material fact, the nonmoving 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 Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir), cert denied, 493 U.S. 809 (1989).
The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir 1987). The court should resolve reasonable doubts about the existence of a material factual issue against the moving party. Id. at 631. The court should view inferences drawn from the facts in the light most favorable to the nonmoving party. Id. at 630-31.
DISCUSSION
A. 42 U.S.C. § 1981 Claim 42 U.S.C. § 1981(a) provides that:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
"To establish a claim under § 1981 the plaintiff must prove that he or she was subjected to intentional discrimination based upon his or her race, rather than solely on the basis of the place or nation of their origin or their religion." Pavon v. Swift Transportation Co., Inc., 192 F.3d 902, 908 (9th Cir 1999). However, Menzie's § 1981 claim alleges only that she was exposed to a "hostile work environment . . . as a person of Middle Eastern heritage." Complaint, ¶ 19.
Menzie's affidavit in opposition to summary judgment states, "I am a female, born and raised in Iran." She does not assert that Iranian or Middle Eastern is a different race. Nor does she allege, except in the most conclusory fashion — or offer proof — that she was discriminated against because defendants perceived her to be of a different race. Cf Pavon, 192 F.3d at 908 (§ 1981 applicable because defendant "considered Pavon to be of a different race than himself and chose to harass Pavon based on his ancestry and ethnic characteristics"); Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 114-15 (5th Cir 1986) (sufficient that defendant perceived Iranian man to be of a different race). See also Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987) (§ 1981 applies if man was discriminated against "based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion"). Even if I were to construe Menzie's complaint and affidavits as sufficient to invoke the protections of § 1981(a), Menzie has not produced evidence from which a jury could conclude that defendants discriminated against Menzie because of her race. Gender is the only consideration mentioned in Menzie's BOLI charge, and it is the focus of her summary judgment submissions. Menzie's affidavit lists only two incidents that she claims were racially motivated. "About ten years ago" Menzie spoke with "John Grassman, the former District Three Manager" (who is not a defendant in this lawsuit) about "advancement." Grassman allegedly responded, "My little Toby not too long ago you were begging me to hire you." Menzie says she interpreted this as a reference to the black servant Toby in the movie Roots. Menzie is not black.
The second incident allegedly occurred in 1999, when defendant Wright asked another employee if he planned to operate a particular piece of heavy equipment. The employee responded that he did not know how. Wright allegedly countered, "If you don't know how to run equipment, we will let somebody else do it. This is our way of doing ethnic cleansing." It is unclear from Menzie's affidavit whether this remark was even directed at her. These two stray remarks of questionable relevance, by two different individuals, ten years apart, falls far short of establishing a violation of § 1981. Defendants are entitled to summary judgment on this claim.
Plaintiff's brief argues both Title VII and state law claims. See, e.g., Plaintiff's Memorandum at 6. However, I previously dismissed her state law claims. In addition, the Ninth Circuit recently declined to follow several of the cases she relies upon. See Snead v. Metropolitan Prop. Cas. Ins. Co., 237 F.3d 1080, 1090-93 (9th Cir 2001). In fairness to Plaintiff's counsel, Snead was decided only weeks before her brief was filed, and departs from earlier decisions.
A plaintiff alleging disparate treatment under Title VII generally must first establish a prima facie case of discrimination by showing that (1) she belongs to a protected class; (2) she was qualified for the position; (3) she was subject to an adverse (a/k/a "tangible") employment action; and (4) similarly situated individuals outside her protected class were treated more favorably. Chuang v. University of California Davis, 225 F.3d 1115, 1123 (9th Cir 2000). The burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action. Id. at 1123-24. If the employer does so, the plaintiff must show that the articulated 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." Id. at 1124, quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
With limited exceptions, a person is barred from pursuing a Title VII claim unless that individual timely filed a charge of discrimination with the EEOC (or in Oregon, with BOLI). See EEOC v. Farmer Brothers Co., 31 F.3d 891, 898-99 (9th Cir 1994); Sosa v. Hiraoka, 920 F.2d 1451, 1455 (9th Cir 1990). In states such as Oregon that have an agency with the authority to address charges of discriminatory employment practices, the charge must be filed within 300 days following the incident that is the subject of the claim. Butts v. City of New York Dep't of Housing Preservation, 990 F.2d 1397, 1401 (2d Cir 1993); 42 U.S.C. § 2000e-5(e).
Menzie filed her BOLI charge on July 16, 1999. Accordingly, all events prior to September 19, 1998, are time barred, unless an exception to the rule applies. With limited exceptions, the court also lacks jurisdiction to hear any allegations not included in the BOLI charge. Sosa, 920 F.2d at 1456.
Menzie's BOLI charge encompasses three incidents, only two of which occurred within the 300 days prior to filing the charge. She alleges that (1) in February 1999, she was not selected for "Incident Response" training, and (2) at an unspecified date (which her summary judgment affidavit states was April 1999) she was "denied budget training when it was held in Eugene."
Menzie's BOLI charge also alleges that at an unspecified date, she was "denied the opportunity to be responsible for guardrails." However, Menzie's affidavit in opposition to summary judgment states that the guardrail incident occurred in June 1998, more than 300 days prior to the filing of the BOLI charge. Consequently, only two allegations (denial of Incident Response and budget training) were preserved by a timely filed BOLI charge.
Menzie's BOLI charge blames gender discrimination for both denials of training. However, her affidavit in opposition to summary judgment attributes the budget training denial solely to discrimination on account of her "national origin." That is beyond the scope of her Title VII claim, which I previously limited because her BOLI charge did not allege discrimination on account of national origin.
Even ignoring that aspect of Menzie's affidavit, her claim regarding the budget class fails for multiple reasons. First, the challenged decision was not a "tangible employment action" for purposes of Title VII. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 762 (1998). "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. at 761. See also Chuang, 225 F.3d at 1126 (challenged action must materially affect the compensation, terms, conditions, or privileges of employment). Menzie offers no evidence that this class would have resulted in a promotion, or led to a salary increase, or that her career was significantly impaired by not taking the class.
Menzie has also failed to establish a prima facie case that she was qualified for this task. Menzie has submitted letters praising her work on various projects and her personal traits, but they do not address her aptitude for this particular task. Her affidavit states only that she was "eager to attend the training class," but that in itself does not establish that she was qualified to assist Wright with the budget.
Wright has offered a non-discriminatory explanation for his decision not to select Menzie, namely, that the individual selected would be assisting him with the annual budget, he previously had given plaintiff the opportunity to perform some bill-paying functions and had been dissatisfied with her performance, and the person he selected had assisted him with the budget in the past. Menzie has not proffered evidence that this explanation is "unworthy of credence," or that "a discriminatory reason more likely motivated the employer." Texas Dep't of Community Affairs, 450 U.S. at 256. Only a single person was to be selected for the budget training class; this was not a situation in which every employee could be accommodated. Menzie was the only woman on the crew, so if anyone else was selected it would necessarily be a man. Although she was not chosen for this position, the record shows that Menzie participated in a wide range of other training classes while employed at ODOT. Menzie's affidavit also states that defendant Wright selected, for the budget class, a person who "works for [Wright] in his private construction business pouring concrete." The implication is that Wright selected a friend, but that is not proof of gender discrimination.
Even if Wright was mistaken about Menzie's suitability for this task, an employer is not liable under Title VII simply for choosing the wrong person for a particular task. There is nothing in this record to suggest that the decision was attributable to gender.
Menzie also blames gender discrimination for the decision not to choose her for an Incident Response training course in 1999. However, her affidavit states that she had previously "done this job in the summers of 1996 and 1997 and on other occasions when needed," and the record also shows that Menzie had already taken this course in 1998, which raises the question of why Menzie needed to take this class again in 1999. That her employer previously had selected Menzie for similar assignments on other occasions also undermines her contention that women in general (and she in particular) were discriminated against. Menzie also offers contradictory statements regarding what she told her superiors concerning her availability that summer. Her affidavit says that she "let [Wright] know that I would be gone a few days in July and August as I was graduating and getting married." However, her BOLI charge states that when she told management she would be unavailable in June and July she "had meant only a few days, not both months" (emphasis added), leaving in doubt precisely what she had communicated to her superiors.
Defendants' response to the BOLI claim states that the 1999 course was "a two-day seminar to be certified in driving emergency response vehicles." Defendant Wright attempted to incorporate that document, by reference, into his affidavit in support of the motion for summary judgment. That is a dubious practice, particularly when the BOLI response is a legal argument signed by an Assistant Attorney General, and it is unclear whether Wright has personal knowledge of all matters contained therein. Some of defendants' other affidavits also include argument that belongs in a legal memorandum, not in an affidavit. Only the facts from the affidavits have been considered for this opinion.
The only evidence that could potentially support a claim of gender discrimination is a statement by Wright (which he has not denied making), several months after the decisions in question, that "[j]ust because you jog a lot does not mean that you are as strong as `Joe Blow' which comes natural for him." However, it is not clear from Menzie's submissions what role Wright played in deciding who would attend the course, what decisions were made, when, and by whom. The absence of such evidence makes it difficult to establish any link between the decision she complains of and Wright's "sexist" remark.
Menzie also offers little or no evidence on critical issues: how many other employees were eligible for this class, what qualifications were required, and what was the criteria for selecting attendees ( e.g., since Menzie had worked on incident response before, and previously taken the class, was it more important to train others who had never taken the class)? The court is left with little more than a naked assertion that Menzie wanted to be selected for the class, but another employee was chosen instead, and Wright later made an allegedly sexist remark to Menzie.
Furthermore, the decision not to select Menzie for this particular class is actionable only if it constituted a "tangible employment action" for purposes of Title VII. Burlington Northern, 524 U.S. at 762. As with the budget class, Menzie offers no evidence that the Incident Response class would have resulted in a promotion, or led to a salary increase, or that her career was significantly impaired by not taking the class, or that she could not have taken the class on another occasion. She does not explain what the class was or why it was important to her. There is no evidence that Menzie was systematically denied training opportunities; it is undisputed that she took a variety of classes while employed with ODOT, including 16 classes during the period 1995 through 1999 alone. I conclude that the decision not to select Menzie for the Incident Response class in 1999 was not a tangible adverse employment action prohibited by Title VII.
Menzie states that she worked on the Incident Response crew in prior years, which implies that she had previously taken the class. ODOT records show Menzie took an Incident Response course in 1998. Menzie has not offered an alternative explanation.
The other incidents listed in Menzie's Complaint in this action, and in her affidavit in opposition to summary judgment, are not mentioned in her BOLI charge. Menzie must overcome two obstacles before this court can consider an allegation not included in her BOLI charge. First, the new allegation must be "like and reasonably related to" the allegations that were included in the BOLI charge. Sosa, 920 F.2d at 1456. Second, the new allegation must either have occurred within 300 days prior to the filing of the BOLI charge, or else come within the "continuing violation" exception. Id. at 1455-56.
Under the continuing violation doctrine, "a systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period." Id. at 1455. Alternatively, the plaintiff can show "a series of related acts one or more of which are within the limitations period." Morgan, 232 F.3d at 1015. However, "the alleged incidents of discrimination cannot be isolated, sporadic, or discrete." Id.
Defendants assert that the "continuing violation" doctrine does not apply unless the plaintiff proves she "did not know or have reason to know that the earlier actions were discriminatory." That is not the law in this circuit. See Morgan v. National Railroad Passenger Corp., 232 F.3d 1008, 1014-15 (9th Cir 2000).
Menzie's new allegations are not sufficient to overcome either obstacle. All of those events occurred more than 300 days prior to filing the BOLI charge. The events are scattered over a period of up to ten years, they involve several different actors, and there is little evidence that gender played a substantial role in any of the events. In several instances, Menzie's own Complaint and affidavit suggest that nepotism, rather than gender discrimination, was involved. Menzie also complains that she was often assigned to the "flagger" position on the road crew, but her affidavit does not say that she ever complained about that assignment or requested that she be given a different task.
Menzie's Complaint in this action states that she did complain about being the flagger, but she offers no evidence of this in her opposition to summary judgment.
Menzie complains that she was not assigned to coordinate a guardrail repair project, but fails to counter the non-discriminatory reason given by Dan Wright for not selecting her for that project. The reference letters she has produced indicating that she performed certain tasks well do not establish that she was qualified to perform this particular task. Menzie also has failed to show that the decision not to assign that task to her constitutes a tangible employment action.
Finally, Menzie complains that she was not selected for an engineering specialist 1 (ES1) position. Precisely when this event occurred is unclear, but it was certainly more than 300 days before the BOLI charge was filed (and probably at least several years before). I reject Defendants' contention that this could not be an adverse employment action because it would have been a "demotion." Defendants' own affidavit establishes that employees were advised to take this short-term "demotion" to reach a new career path with room for future advancement.See Aff. of Shirley Bailey, ¶ 6.
Nevertheless, there is a dearth of evidence that gender discrimination was implicated in the decision, or that this is part of a "continuing violation." Menzie does not provide the court with any useful details. It is unclear who made the decision not to hire her as an ES1, though it apparently was not Wright (who failed to pick her for more recent tasks). It is unclear how many openings existed, how many people applied or were eligible, how many applicants were female, whether the applicants were ranked or how they were selected, whether the individuals selected had equal or lesser qualifications than Menzie, etc. Again, the court is simply left with a naked assertion that Menzie wanted a position and did not get it, a man was hired, hence she was discriminated against on account of her gender. Admittedly, it does not require a lot of evidence to survive a motion for summary judgment in an employment discrimination action, Chuang, 225 F.3d at 1124, but Menzie must provide at least some evidence to support her discrimination claim, which she has failed to do.
Menzie's evidence also falls far short of establishing a "sexually hostile working environment" claim. See Burlington Northern, 524 U.S. at 754 (to be actionable, "the conduct must be severe or pervasive").
I grant defendants' motion for summary judgment on the Title VII claim.
C. 42 U.S.C. § 1983 Claim
This claim is against defendants Wright, Walden, and Michaelson in their individual capacities. Unlike Title VII, a 42 U.S.C. § 1983 claim is not limited to allegations covered in the BOLI charge, and it has a different statute of limitations (in Oregon, two years from the date the action was commenced, which was February 29, 2000). Otherwise, however, the analytical framework for a § 1983 claim in an employment context is fairly similar to that for a Title VII claim. FDIC v. Henderson, 930 F.2d 465, 472 (9th Cir 1991).
Defendants assert that "[t]he threshold question in any 42 U.S.C. § 1983 action against a state official is . . . whether a plaintiff can establish that the individual acted in pursuit of some unlawful private goal." Defendants' Memorandum at 37. That is incorrect. The distinction between "individual" and "official" capacity does not turn on whether the individual was pursuing some private end, or was acting within the course and scope of his employment; rather, it is best understood as the capacity in which the person is sued. See Hafer v. Melo, 502 U.S. 21, 25-29 (1991).
None of the allegations against defendant Walden occurred within the limitations period, nor is there sufficient evidence in the record from which a jury could find that Walden committed a § 1983 violation. The only allegation against defendant Michaelson is a vague grievance involving the Incident Response course, which does not rise to the level of a § 1983 violation. Both defendants are entitled to summary judgment on the § 1983 claim.
The only allegations against defendant Wright within the limitations period are that he did not choose Menzie for the guardrail project and budget class, and possibly that he did not select her for the incident response course (though that is very vague). Wright is also alleged to have made one or two sexist remarks. These allegations have been discussed above, in the context of the Title VII claim, and found insufficient. These allegations fare no better when packaged as a § 1983 claim. Cf Henderson, 940 F.2d at 472 n 14 ("the status of the § 1983 equal protection claim generally depends on the outcome of the Title VII analysis"). Wright is entitled to summary judgment on this claim.
CONCLUSION
The record in this case, when viewed in the light most favorable to Plaintiff Menzie, is insufficient as a matter of law to proceed to trial on any of her claims (to the extent they are not otherwise procedurally barred). Defendants' Motion (#39) for Summary Judgment is GRANTED as to all remaining claims.
ORDER
The motion to dismiss (#11) by defendant Nafta Traders, Inc. is DENIED.
IT IS SO ORDERED.