Opinion
Civil No. 00-1529-KI.
February 1, 2002
Phylis Chadwell Myles, Myles Myles, Portland, Oregon, Attorney for Plaintiff.
Carol J. Bernick, Katrina M. Lonborg, Davis Wright Tremaine LLP, Portland, Oregon, Attorneys for Defendant.
OPINION AND ORDER
Before the court is the motion for summary judgment (#15) by defendant Bank of America. For the reasons set forth below, I grant the motion.
Also before the court is defendant's motion to strike portions of the affidavits of plaintiff Amelia Paden and Anita Noble (#36) and plaintiff's motion to withdraw portions of the affidavit of Amelia Paden (#42). Given that I do not rely on these affidavits in rendering my decision, these motions are denied as moot.
FACTS
Plaintiff, an African-American, was employed by defendant and its predecessor from 1988 until June 16, 1999, most recently as a Personal Banker III. Throughout her employment, plaintiff worked at the Walnut Park Branch.
Kimberly Thrush became plaintiff's supervisor in October 1998. The facts developed by the parties detail conflicts between Thrush and plaintiff. Such conflicts escalated to the point of plaintiff accusing Thrush of harassment and discrimination and bank management suggesting, in December 1998, that plaintiff accept a transfer to another branch.
In late December 1998, plaintiff began a pre-scheduled vacation. She had not yet made a decision about defendant's offer to transfer her. While on vacation, plaintiff fainted and hit herhead. As a result, plaintiff applied for and was granted a job-protected leave under the Family and Medical Leave Act ("FMLA") on January 4, 1999. Plaintiff understood that, under the FMLA, she was entitled to 12 weeks of leave.
Plaintiff's job-protected leave expired on March 29, 1999, at which time she was not yet released to work by her doctor. While plaintiff was on leave, she was in contact with Marti Leonard in defendant's "return to work" department. When plaintiff's job-protected leave expired, Leonard explained to Paden that defendant would grant her additional leave, but that it would not guarantee her that she could return to her previous position. On May 16, 1999, almost two months after plaintiff's job-protected leave had expired and before she was released to return to work, James Crane was hired into the Personal Banker position at Walnut Park.
On May 20, 1999, plaintiff's doctor released her to return to work. On June 14, 1999, plaintiff was offered a new position at a different bank branch with the same grade level and pay rate as her old position (but fewer hours). Because plaintiff refused to accept the new position, her employment ended on June 16, 1999.
LEGAL STANDARD
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 528 U.S. 375 (1999).
DISCUSSION
Plaintiff's Complaint states a variety of claims premised on race discrimination. Specifically, she asserts claims of disparate treatment, hostile work environment, and retaliation under Title VII and 42 U.S.C. § 1981. Plaintiff also brings a state law claim for wrongful discharge. However, as confirmed at oral argument, plaintiff has abandoned her hostile work environment, retaliation, and wrongful discharge claims. Instead, plaintiff resists summary judgment only in regard to her theory of liability premised on disparate treatment. Accordingly, I focus on the merits of that type of claim. I. Standards Applicable to Disparate Treatment Claims
I note that defendant argues that plaintiff's Title VII claims are barred because plaintiff filed her notice late with the EEOC. I do not reach this issue regarding plaintiff's Title VII disparate treatment claim given that plaintiff has asserted essentially the same claim under 42 U.S.C. § 1981 and both claims fail on the merits as a matter of law.
To prove a disparate treatment claim, a plaintiff must first establish a prima facie case of discrimination. A prima facie case may be demonstrated by direct evidence of discriminatory intent or may be based on a presumption arising from factors set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Generally stated, the factors are:(1) membership in a protected class; (2) qualification for the job or satisfactory performance of the job; (3) an adverse employment decision; and (4) different treatment than those similarly situated outside of the protected class. Id.
The requisite degree of proof necessary to establish a prima facie case for a Title VII claim on summary judgment "is minimal and does not even need to rise to the level of a preponderance of the evidence." Wallis v. J. R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). "The plaintiff need only offer evidence which `gives rise to an inference of unlawful discrimination.' . . . Establishment of a prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. "Id. (citations omitted). Once plaintiff has established a prima facie case, the burden of production shifts to the defendant to rebut the presumption of discrimination by articulating some permissible reason for the adverse action. Id. "Once the defendant fulfills this burden of production by offering a legitimate, nondiscriminatory reason for its employment decision, the . . . presumption of unlawful discrimination `simply drops out of the picture.'" Id. (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993)).
Then the burden shifts to the plaintiff to show that the defendant's reason is a pretext for another motive which is discriminatory. Id. "When evidence to refute the defendant's legitimate explanation is totally lacking, summary judgment is appropriate even though plaintiff may have established a minimal prima facie case based on a McDonnell Douglas type presumption. "Id. at 890-91. Plaintiff is not required, however to produce additional, independent evidence of discrimination at the pretext stage if the prima facie case raises a genuine issue of material fact regarding the truth of the employer's proffered reasons. Chuang v. University of California Davis, 225 F.3d 1115, 1127 (9th Cir. 2000). Nevertheless, to avoid summary judgment, the plaintiff
must produce enough evidence to allow a reasonable factfinder to conclude either:(a) that the alleged reason for [the plaintiff's] discharge was false, or (b) that the true reason for his discharge was a discriminatory one.Nidds v. Schindler Elevator Corporation, 113 F.3d 912, 918 (9th Cir. 1996) (emphasis in the original), cert. denied, 522 U.S. 950 (1997). If the plaintiff offers direct evidence of discriminatory motive, a triable issue on the actual motivation is created "even if the evidence is not substantial." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998). The plaintiff may also offer circumstantial evidence that tends to show that the proffered motive is a pretext because it is inconsistent or unbelievable. In this case, the evidence of pretext must be specific and substantial to create a triable issue on whether the employer intended to discriminate. Id. at 1222.
II. Analysis of Plaintiff's Disparate Treatment Claims
The closest that plaintiff comes to alleging an adverse employment action is her allegation that she was terminated upon returning to work after an approved medical absence. As plaintiff states in her opposition brief:
Plaintiff did not want to leave her job, but the stress from Thrush's harassment and bias forced he[r] to take a medical leave of absence. Because of the leave, plaintiff's job was filled. When she was release[d] to work, she wanted to go back to her former position. But she was only offered a teller position with no delegated duties, no sales jobs, and less hours. In terms of duties, the position was a demotion compared to her former position as a personal banker. She did not feel that she should be forced out of her position because of Thrush's discriminatory behavior towards her. Plaintiff was effectively terminated when she asked for more time to consider the job demotion that was offered.
Plaintiff's Memorandum in Opposition, p. 13 (references to affidavits omitted).
As an initial matter, I note that this argument conflicts with the undisputed fact that plaintiff took her medical leave of absence as a result of an off-the-job injury. See Defendant's Concise Statement of Material Facts, ¶ 26; Plaintiff's Response to Defendant's Concise Statement, p. 4 (admitting defendant's paragraph 26). As such, there is no nexus between the discriminatory conduct that plaintiff alleged occurred on-the-job and the cessation of her employment. Even if there were, the fact that defendant did not make available to plaintiff her prior position does not rise to the level of an adverse employment action, especially given that plaintiff's FMLA leave had expired. See McAlindin v. County of San Diego, 192 F.3d 1226, 1238-39 (9th Cir. 1999) (an employer's refusal to extend an employee's right to return to work beyond the time dictated in the employer's leave policy was not an adverse employment action). Finally, even if defendant had an obligation to offer plaintiff a position, there is no evidence that an alternative position more comparable to her prior position was available.
Even if plaintiff could show that she suffered an adverse employment action upon her release back to work (or in any of the other contexts alleged by her), she provides insufficient evidence that defendant's actions were motivated by racial animus or that others not in her class had been treated more favorably in such a situation. In short, plaintiff fails to establish a prima facie case of discrimination and she has not presented evidence that would be sufficient to demonstrate pretext.
CONCLUSION
Based on the foregoing, the motion for summary judgment (#15) by defendant Bank of America is GRANTED. Defendant's motion to strike portions of the affidavits of plaintiff Amelia Paden and Anita Noble (#36) and plaintiff's motion to withdraw portions of the affidavit of Amelia Paden (#42) are each DENIED AS MOOT.
IT IS SO ORDERED.