Opinion
Civil No. 00-792-JO
November 16, 2001
Jennifer L. Lanfranco, Richard C. Busse, Busse Hunt, Portland, OR, Attorneys for Plaintiff.
Barry Alan Johnsrud, Joel P. Kelly, Jackson Lewis Schnitzler Krupman, Seattle, WA, Attorneys for Defendant.
OPINION AND ORDER
Plaintiff Nick Pankov brings eight claims alleging unfair employment practices against his former employer, defendant Precision Instruments ("PI"). Included in plaintiff's complaint are allegations that PI failed to promote him, engaged in chronic abusive treatment and denied him "spot bonuses" under the company's program of paying cash to employees who submit process improvement and money saving suggestions. Defendant ultimately fired plaintiff in November, 1999. According to plaintiff, PI's above actions were motivated by national origin, gender and age animus. This court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 1367.
Defendant moves for summary judgment on claims one through seven (#53) and claim eight (#67). For the reasons stated below, defendant's motion on claims one through seven is DENIED and defendant's motion on claim eight is GRANTED.
FACTUAL BACKGROUND
Plaintiff was born in Russia in 1946 and immigrated to the United States in approximately 1985. He worked as a machine operator from 1996-1999 at PI, which manufactures cable assemblies for medical and data interconnect systems. The various incidents of alleged discrimination occurred over a period of two years from approximately 1997-1999, during which plaintiff reported to manager Elena Cazel. He alleges that he submitted several proposals for process improvements, two of which PI implemented, in the hopes of getting paid under an official company spot bonus program. Plaintiff repeatedly discussed these proprosals with Cazel and human resources representatives, but was never awarded a spot bonus. In addition, Cazel allegedly lost some of plaintiff's proposals. During an October, 1998 meeting with Cazel and Holly Borden, Director of Human Resources, plaintiff again raised the issue of spot bonuses and threatened to bring suit for discrimination if he was not awarded a bonus for his ideas that PI utilized.
PI is now a subsidiary of TYCO, Inc.
Plaintiff contends that he applied for but was denied a promotion to an "Operator IV" position despite being qualified. Cazel alleges that she never saw the application and that she subsequently told plaintiff he was not qualified because he needed additional training and experience. Plaintiff alleges that women with less experience were allowed to apply for the position and individuals younger than plaintiff received such promotions. After completing the training, plaintiff was told he would need to reapply for the position, as Cazel had lost plaintiff's original application.
Plaintiff also alleges that various managers made discriminatory remarks to him during the course of his employment. On one occasion, Cazel allegedly told plaintiff that she disliked him because he resembled her father. On another occasion, Cazel allegedly called him a "mistake of God" and said that she prayed to God to change the plaintiff. Plaintiff also contends that Hobbs told him that he should understand better "at your age." Finally, the Vice President and General Manager of PI, Vic Petroff, allegedly told plaintiff in a meeting that he was not Russian and that plaintiff needed to be a team player or look for another position outside the company.
On November 12, 1999, plaintiff was involved in an argument with Cazel on the plant floor over his improvement suggestions. Concerned that the discussion was becoming heated, Cazel suggested moving to a private room and invited the Human Resources Administrator, Lisa Hobbs, to participate in the meeting. Plaintiff became very angry during the meeting, allegedly pounding his fists on the table and breaking his glasses. In an effort to control his anger, plaintiff states that he clawed his left hand with his right hand until he bled, and he apparently later passed out from loss of blood. Hobbs asked a security guard to escort him from the building. PI terminated him three days later on the stated grounds that his conduct during the November 12, 1999 meeting was unacceptable. Plaintiff responds that he was terminated because of his complaints about discrimination. He further alleges that Jose Valle, another PI employee, had a confrontation with plaintiff in 1998, in which he threatened plaintiff and allegedly called him a "fucking Russian." Valle was not terminated at the time for his behavior, but rather received a written reprimand and two-week suspension.
The U.S. Equal Employment Opportunity Commission (EEOC) investigated plaintiff's complaint. On March 6, 2000, Michael C. Fetzer, Deputy Director of the Seattle District office of the EEOC, informed plaintiff that the EEOC investigation had found that, while there was widespread employee dissatisfaction with Cazel and the management of PI, there was not sufficient evidence of age, sex or national origin discrimination to prosecute. On March 30, 2000, plaintiff received a dismissal and notice of right to sue from the EEOC, and plaintiff filed his complaint within the 90-day time limit.
STANDARD OF REVIEW
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); 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 the facts are viewed in the light most favorable to the non-moving party. Id. at 630-31.
DISCUSSION Defendant's Motions for Summary Judgment
Defendant moves for summary judgment on all of plaintiff's eight claims. The claims alleged are as follows: 1) national origin discrimination under Title VII; 2) sex discrimination under Title VII; 3) age discrimination under ADEA; 4) national origin discrimination under ORS 659; 5) sex discrimination under ORS 659; 6) age discrimination under ORS 659; 7) common law wrongful discharge; and 8) wage claim discrimination.
Because ORS Chapter 659 is Oregon's statutory counterpart to Title VII and is similarly construed, I have consolidated the federal and state discrimination claims. See Heller v. EBB Auto Co., 8 F.3d 1433, 1437 n. 2 (9th Cir. 1993). Similarly, I combined the Title VII and ADEA claims for analysis purposes because the burdens of proof and persuasion are identical. See Wallis v. Simplot, 26 F.3d 885, 888 (9th Cir. 1994), (citing Rose v. Wells Fargo Co., 902 F.2d 1417, 1420 (9th Cir. 1990)).
A. National Origin, Gender, and Age Discrimination Claims (Claims 1-6)
Defendant moves for summary judgment on plaintiff's national origin, gender and age discrimination claims on the grounds that plaintiff cannot make a prima facie case of disparate treatment or termination for discriminatory reasons. Instead, defendant contends that plaintiff was dismissed from employment with PI due to his "violent outburst" during his final meeting with his supervisor and human resources representative, and his history of aggressive behavior. Plaintiff responds that he had a good work history and had consistently received favorable performance ratings. While he admits to losing control at the final meeting on November 12, 1999, he denies engaging in threatening behavior either during or prior to the meeting. Rather, plaintiff maintains that he was provoked by Cazel and that his outburst was a direct result of the discrimination he endured during his employment at PI.
Title VII prohibits discrimination in employment on the basis of race, color, religion, sex or national origin. 42 U.S.C. § 2000e. To bring a discrimination claim under Title VII, plaintiff is required to first put on a prima facie case to establish discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817 (1973). The bar to make a prima facie case is low: "the requisite degree of proof necessary to establish a prima facie case for Title VII and ADEA claims 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) (citation omitted). Indeed, plaintiff is only required to give evidence that "gives rise to an inference of unlawful discrimination." Id. at 889 (citations omitted). Plaintiff can establish his prima facie case by direct evidence of discriminatory intent or based on a presumption arising from the four factors set forth in McDonnell Douglas: 1) plaintiff is a member of a class protected by Title VII; 2) plaintiff is qualified for the job or satisfactorily performed the job; 3) an adverse employment action occurred; and 4) plaintiff was treated differently than those similarly situated outside of the protected class. McDonnell Douglas, 411 U.S. at 802; Buscemi v. AAA Oregon/Idaho, 2000 WL 900489, *3 (D.Or. 2000).
Once plaintiff makes his prima facie case, the burden of production shifts to defendant, who must demonstrate a legitimate, non-discriminatory purpose for the adverse employment action. Wallis, 26 F.3d at 889, (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). If defendant succeeds in offering such a reason, then there no longer is a presumption of unlawful discrimination. Wallis, 26 F.3d at 889, (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)). This means that plaintiff must then produce "specific, substantial evidence of pretext" in response to defendant's evidence. Wallis, 26 F.3d at 890, (quoting Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983)). "Still, because of the inherently factual nature of the inquiry, the plaintiff need produce very little evidence of discriminatory motive to raise a genuine issue of fact." Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991). As a result, the Ninth Circuit has established that a high standard exists for the granting of summary judgment in employment discrimination cases. See Schndrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir.), cert. denied, 519 U.S. 927 (1996); Lam v. University of Hawaii, 40 F.3d 1551, 1559 (9th Cir. 1994).
Defendant contends that plaintiff fails to prove steps two and four of his prima facie case because he was not qualified for his position and was not treated any differently than other non-protected employees. Furthermore, defendant contends that there is no evidence of national origin, gender or age discrimination on the part of plaintiff's supervisors.
Plaintiff responds with evidence of the following: first, he belongs to the appropriate protected classes under Title VII as he is a male, Russian immigrant and was born in 1946. Second, plaintiff consistently received favorable performance ratings and salary increases. Defendant contends that plaintiff was not a qualified employee based on his behavior at the November 12, 1999 meeting. This is the only evidence defendant offers to demonstrate that plaintiff was not qualified. Because both sides offer differing accounts of what occurred during the final meeting, this is a factual question suitable for a jury to decide and does not prove that plaintiff was not qualified for purposes of summary judgment. Third, defendant took adverse action by terminating plaintiff on the following Monday after the November 12, 1999 meeting. Finally, there is evidence supporting plaintiff's allegation that he was treated differently from other individuals outside his protected class. Younger, non-Russian men and women received spot bonuses and younger, non-Russian women were promoted to Machine Operator IV positions. Furthermore, another employee, Jose Valle, who allegedly engaged in threatening behavior directed towards the plaintiff in 1998, was not terminated. Thus, plaintiff submits sufficient evidence to meet the minimal requirements of the McDonnell Douglas test.
Defendant contends that an equal number of men and women, of various ages and nationalities, received spot bonuses and promotions. Again, this is a factual question for the jury to decide.
The burden then shifts to defendant to provide a legitimate, non-discriminatory reason for termination. Wallis, 26 F.3d at 891. Defendant again raises the evidence of plaintiff's allegedly inappropriate and aggressive behavior during the November 12, 1999 meeting as the reason for plaintiff's termination, rather than national origin, gender or age discrimination. By providing this legitimate, non-discriminatory reason for discrimination, defendant meets its burden of production and thus the presumption of discrimination created by the prima facie case disappears. Id. at 892 (citation omitted).
Next, plaintiff must offer specific, substantial evidence of pretext and demonstrate that the true reason for his termination was discriminatory. Buscemi, 2000 WL 900489 at *6, (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-508 (1993)). According to the Ninth Circuit, there are two ways in which a plaintiff can establish pretext: 1) indirectly, by establishing inconsistencies or credibility issues with defendant's proffered reason; and 2) directly, by showing that the employer's motivation was more likely unlawful discrimination. Chuang v. University of California Davis Board of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000), (citing Goodwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220-22 (9th Cir. 1998)). This means that plaintiff does not necessarily need to submit new evidence beyond that which he produced to make his prima facie case, if plaintiff's evidence raises a genuine issue of material fact regarding the truth of defendant's reasons for termination. Chuang, 225 F.3d at 1127 (citations omitted).
As discussed above, plaintiff maintains that he was terminated because he repeatedly raised the same issues: discrimination, failure to be promoted and denial of spot bonuses. Plaintiff offers a different account of what occurred during the November 12, 1999 meeting, as well as evidence of his lost proposals and promotion application, and management's allegedly discriminatory remarks. Based on this evidence, plaintiff has established pretext on defendant's part. Thus, plaintiff has met his requisite burden under McDonnell Douglas and has defeated defendant's summary judgment motion on claims one through six.
B. Wrongful Discharge Claim (Claim Seven)
Plaintiff brings a wrongful discharge claim under Oregon common law. The general rule in Oregon is that an employer may discharge an at-will employee at any time and for any reason, absent a contractual, statutory or constitutional requirement. Patton v. J.C. Penney Co., 301 Or. 117, 120, 719 P.2d 854 (Or. 1986) (citations omitted). The tort of wrongful discharge provides an exception to this rule by providing remedy in damages to an employee dismissed for either pursuing an important public or societal obligation or for exercising an employee-related right of public importance. Id.
Defendant contends that plaintiff's complaints, speculative claims of discrimination, and threat of suit for discrimination in 1998, and again on his last day on November 12, 1999, fail to establish grounds for wrongful termination. Defendant again vigorously reiterates that plaintiff was terminated for his violent and intimidating behavior. Plaintiff raises an issue of material fact by alleging that his continuing complaints about discrimination and agitating about the above issues led to his termination. Defendant's motion for summary judgment on the wrongful discharge claim is denied.
C. Wage Claim Retaliation (Claim Eight)
Defendant contends that the court should dismiss plaintiff's claim for wage claim retaliation because a demand for a spot bonus does not meet the definition of a wage claim under ORS 652.355 and regardless, plaintiff was not retaliated against for making such a demand. Plaintiff responds that because he had a good faith belief that he was entitled to a spot bonus, he has established sufficient basis for his claim of wage claim discrimination.
ORS 652.355 provides:
"Prohibition against discrimination because of a wage claim; remedy. (1) No employer shall discharge or in any other manner discriminate against an employee because:
(a) The employee has made a wage claim or discussed, inquired about or consulted an attorney or agency about a wage claim.
(b) The employee has caused to be instituted any proceedings under or related to ORS 652.310 to 652.405.
(c) The employee has testified or is about to testify in any such proceedings.
(2) Any person who discharges or discriminates against any employee in violation of subsection (1) of this section shall be liable to the employee discharged or discriminated against for actual damages or $200, whichever is greater. In any action under this subsection, the court may award to the prevailing party, in addition to costs and disbursements, reasonable attorney fees.
Defendant also raises the issue of whether plaintiff can bring a private action under ORS 652.355 because plaintiff indisputably only made internal complaints to his employer, rather than bringing a claim through an external administrative agency, such as the Bureau of Labor and Industries ("BOLI"), or through other legal channels. The Oregon Court of Appeals has held that there is no private right of action under ORS 652.310 — 652.405. See Stout v. Citicorp Industrial Credit, Inc., 102 Or. App. 637, 641, 796 P.2d 373 (1990) (holding that these statutory sections "do not expressly provide for a private right of action and there is no language indicative of a legislative intent to imply a private right of action under those provisions"). There have been some opposing readings of the Stout decision. See, e.g., Lundervold v. Core-Mark Int'l, Inc., 1997 WL 907915, *4 (D.Or. 1997) (holding that Stout did not "preclude a plaintiff from bringing an action under ORS 652.335(2)," but rather held that a private party may not avail itself of certain statutory remedies available only to BOLI). Because plaintiff does not satisfy the requirements of proving a wage claim, I do not need to address the merits of this issue.
According to ORS 652.320(9), "wage claim" means an employee's claim against an employer for compensation for the employee's own personal services, and includes any wages, compensation, damages or civil penalties provided by law to employees in connection with a claim for unpaid wages. Wages have been interpreted as all earned compensation contracted for, including vacation pay and bonuses. See, e.g., Wyss v. Inskeep, 73 Or. App. 661, 666, 699 P.2d 1161 (1985) (holding that "if normal requirements for the creation of a contract are met, an employer's promise to pay such fringe benefits is as binding as is a promise to pay hourly wages or a salary"); State ex rel. Nilsen v. Ore. State Motor Assn., 248 Or. 133, 432 P.2d 512 (1967).
In the present case, plaintiff raises no allegations that he was denied wages or compensation to which he had a contractual right. Rather, plaintiff maintains that he reasonably believed that PI should have awarded him a spot bonus for the proposals PI utilized. He does not deny that the spot bonus program was entirely discretionary and not contracted for. Because plaintiff's evidence fails to meet the requisite definition of a wage claim, defendant's motion for summary judgment is granted.
CONCLUSION
Defendant Precision Instrument's motion for summary judgment on claims one through seven (#53) is DENIED and motion for summary judgment on claim eight (#67) is GRANTED.