Opinion
Civil No. 00-442-AS
February 12, 2001
FINDINGS AND RECOMMENDATION
Plaintiff C. Susan Powell ("Plaintiff'), filed a claim against her prior employer, Cascade General, Inc. ("Defendant"), alleging that Defendant wrongfully fired her and refused to hire her because she was a women. Defendant seeks summary judgment against Plaintiff's federal and state claims for sex discrimination.
BACKGROUND
Defendant hired Plaintiff as an administrative assistant in early 1997. In early 1999, Defendant made the decision to eliminate Plaintiff's position. The division in which Plaintiff worked had seen rapid growth during Plaintiff's tenure and required a skilled office manager.
The duties and qualifications for the new office manager position included setting up new office/computer systems, preparing an annual budget, analyzing variances, and developing and defining office procedures and policies. Plaintiff's duties as an administrative assistant included invoicing, collections, answering phones, ordering office supplies, making travel arrangements, maintaining job records, distributing faxes and performing other clerical functions as needed.
Plaintiff was advised of the elimination of her position in early May 999 and was invited to apply for the office manager position or any other open position in the company. Plaintiff, upset about the loss of the position, discussed the changes with Andy Rowe, her supervisor and a vice-president of Defendant. Plaintiff testified in her deposition that Mr. Rowe said "I'm not really supposed to say this, but I think we need a guy in that position."
On May 28, 1999, Plaintiff quit her employment with Defendant. Prior to quitting, Plaintiff made inquiries about other positions within the company, but she never formally applied for any other position with Defendant. On June 29, 1999, Plaintiff forwarded her resume to Defendant and asked to be considered for the office manager position. Defendant offered the position of office manager to Eric Hunter by letter dated June 29, 1999. However, Defendant's human resources manager testified that the decision to hire Mr. Hunter was made in mid-June.
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure allows the granting of summary judgment: if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). "[T]he requirement is that there be no genuine issue of material fact." Anthes v. Transworld Systems, Inc., 765 F. Supp. 162, 165 (Del. 1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)) (emphasis in original).
The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is absent. Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant has met its burden, the onus is on the nonmovant to establish that there is a genuine issue of material fact. Id. at 324. In order to meet this burden, the nonmovant "may not rest upon the mere allegations or denials of [its] pleadings," but must instead "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324.
An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. On the other hand, if after the court has drawn all reasonable inferences in favor of the nonmoving party, "the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).
The Ninth Circuit has set a high standard for granting summary judgment in employment discrimination cases. "[W]e require very little evidence to survive summary judgment in a discrimination case, because the ultimate question is one that can only be resolved through a searching inquiry — one that is most appropriately conducted by the fact-finder, upon a full record." Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir. 1996).
DISCUSSION
Plaintiff asserts two claims for relief for sex discrimination. The first is brought under Title VII of the 1964 Civil Rights Act, as amended (42 U.S.C. § 2000(e)) ("Title VII"). The second claim is brought under O.R.S. 659.030, the state counterpart of Title VII. Title VII prohibits discrimination in employment on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). The requisite degree of proof necessary to establish a prima facie case for Title VII 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) (citations omitted). "The plaintiff need only offer evidence which `gives rise to an inference of unlawful discrimination.'" Id. (citations omitted). "Establishment of a prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." Id. (citations omitted).
A prima facie case may be demonstrated by direct evidence of discriminatory intent or may be based on a presumption arising from the factors such as those set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The factors are: (1) membership in a protected class; (2) application and qualification for the job or satisfactory performance of the job; (3) an employment decision, such as demotion, termination, or failure to hire made despite the satisfactory performance or qualifications; and (4) replacement in the position by an individual of comparable qualification who is not a member of the protected class. Id.
"Once a prima facie case has been made, the burden of production shifts to the defendant, who must offer evidence that the adverse action was taken for other than impermissibly discriminatory reasons." Id. (citations omitted). "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, 113 S.Ct. 2742, 2749 (1993)).
In response to defendant's evidence of nondiscriminatory reasons, plaintiff must produce "substantial" circumstantial evidence that the defendants proffered nondiscriminatory reasons are pretextual or "very little" direct evidence of discriminatory motivation. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217 (9th Cir. 1998). The "mere existence of a prima facie case . . . does not preclude summary judgment." McDonnell Douglas, 411 U.S. at 802. When the plaintiff fails to present evidence to refute the defendant's legitimate explanation, summary judgment is appropriate even though the plaintiff may have established a minimal prima facie case. Id. at 890-91. However, where the plaintiff has established a prima facie case with direct evidence of a discriminatory motive, "very little such evidence is necessary to raise a genuine issue of fact regarding an employer's motive; any indication of discriminatory motive * * * may suffice to raise a question that can only be resolved by a factfinder." Schnidrig, 80 F.3d at 1409 (quoting Lowe v. Monrovia, 775 F.2d 998, 1009 (9th Cir. 1986).
Plaintiff argues that she has presented sufficient direct evidence of discrimination to establish a prima facie claim for sex discrimination. Mr. Rowe told Plaintiff that he wanted to hire a man for the position of office manager. Mr. Rowe was Plaintiff's supervisor; he participated in the decision to eliminate Plaintiff's administrative assistant job and create a new office manager position; he was involved in some degree in outlining the job requirements for the new office manager position; and he participated in the hiring of the only male interviewed for the new office manager position. Mr. Rowe voiced a desire to replace Plaintiff with a male employee and had the power and authority to influence the hiring of the new office manager. Based on this direct evidence of discrimination presented by Plaintiff, the court finds that she has established a prima facie claim of sex discrimination.
Defendants argue that they did not hire Plaintiff because she was not qualified for the job and because Mr. Hunter was more qualified for the job. Powell admits that she did not have experience performing several of the essential duties of the office manager position, such as preparing an annual budget, analyzing variances, or setting up new computer systems. However, she also testified that she performed all of the duties required of the new office manager "in one form or another", in her position as office assistant. Additionally, Plaintiff argues that while Mr. Hunter may have had more managerial experience than she did, Mr. Hunter's experience was limited to two years as the manager of a law office and that he had no experience in the shipping industry.
This contradictory evidences establishes a genuine issue of material fact with regard to Defendant's proffered reasons for failing to offer Plaintiff the new office manager position. If this were the only evidence before the court, the genuine issue of fact on the issue of pretext, coupled with Plaintiff's direct evidence of discriminatory motive, would be sufficient to withstand Defendant's motion for summary judgment. Unfortunately for Plaintiff, the evidence also establishes that Plaintiff voluntarily quit her job with Defendant and did not apply for the new office manager position. The court can hardly hold an employer liable for discriminating against an employee who prematurely leaves her employment with the employer and expresses no interest in remaining with the company.
At the time Defendant explained to Plaintiff that her position was being eliminated, it explained that Plaintiff could apply for the new office manager position and that, if she failed to get the job, she would remain with Defendant during the period it took to train the new office manager, would receive two weeks severance pay and would be entitled to receive outplacement assistance up to two hours a day during work hours. There is no dispute that the increased production of the division warranted the change in Plaintiff's position from administrative assistant to office manager which carried with it increased responsibilities. Accordingly, Plaintiff can not complain that Defendant created the new position solely to replace her with a male. Additionally, because Plaintiff voluntarily terminated her employment with Defendant shortly after she learned of the new position, Plaintiff cannot complaint that she was fired for a discriminatory purpose.
Similarly, Plaintiff cannot complain that Defendant discriminated against her when it failed to hire her for the new position. Plaintiff never indicated a desire to remain with Defendant as the office manager. There is no evidence that Plaintiff ever expressed an interest in the new office manager to anyone before she terminated her employment. The evidence establishes that Plaintiff did not apply formally apply for the new office manager position until after prospective applicants had been interviewed and the successful applicant chosen. Defendant cannot be held responsible for failing to hire her for a position that she did not apply for or even express an interest in until after the position had been filled. Defendant is entitled to summary judgment on Plaintiff's Title VII claim.
The court views Plaintiff's allegations in her state claim the same way. The standard for establishing a prima facie case of discrimination under Oregon law is identical to that used in federal law. Henderson v. Jantzen, Inc. 79 Or. App. 654 (1986). While for years this court has not applied the federal balancing test to state claims, the Ninth Circuit has recently held that the McDonnell Douglas burden shifting scheme is a federal procedural law to be applied to all employment cases filed in federal court. Snead v. Metropolitan Property Casualty Insurance Company, 2000 WL 33122829 (9th Cir. Jan 23, 2001). Accordingly, the court finds that Plaintiff is unable to prove her state law discrimination case as well.
CONCLUSION
Defendant's motion (#13) for summary judgment should be GRANTED.
SCHEDULING ORDER
Objections to these Findings and Recommendation(s), if any, are due February 27, 2001. 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 March 13, 2001. 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.