Opinion
3:18-cv-01695-YY
11-06-2020
JACK ROY, an individual, Plaintiff, v. LABORER'S LOCAL 737, a domestic nonprofit mutual benefit corporation; ZACKARY CULVER, an individual, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge.
Plaintiff Jack Roy (“Roy”) has brought suit against defendants Laborer's Local 737 (“Local 737”) and Zackary Culver (“Culver”), business manager and secretary-treasurer of Local 737, alleging two claims: (1) a violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a), against Local 737, and (2) a violation of Oregon age discrimination laws, O.R.S. 659A.030(1)(a)-(c), against both defendants. Compl. ¶¶ 29, 39, ECF #1. Defendants have filed a Motion for Summary Judgment. ECF #32. The motion should be granted and this case should be dismissed with prejudice for the reasons explained below.
The court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331 and § 1367(a).
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citing FED. R. CIV. P. 56(e)).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A “scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issues are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu, 198 F.3d at 1134 (citation omitted).
The Ninth Circuit has cautioned against “too readily” granting summary judgment in employment discrimination cases because of “the importance of zealously guarding an employee's right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004); see also Chuangv. Univ. of California Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) (“As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment. This is because ‘the ultimate question is one that can only be resolved through a searching inquiry-one that is most appropriately conducted by a factfinder, upon a full record.'”) (quoting Schnidrig v. ColumbiaMach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)).
II. Sufficiency of Evidence
As defendants contend, there is insufficient evidence to create a genuine issue of material fact that they violated either the ADEA or Oregon age discrimination laws. Mot. Summ. J. 10, ECF #32.
A. Evidence Presented
1. History and Structure of Local 737
Local 737 is an affiliated union of the Laborer's International Union of North America (“LIUNA”) and represents construction workers who work for signatory contractors. Culver Decl., ¶ 2, ECF #35; id., Ex. 11 (Uniform Local Union Const. (“Union Const.”) art. I, § 1.), ECF #35-11. Local 737 came into existence on September 18, 2015, as the result of the merger of three unions: Locals 121, 296, and 320. Abbott Decl. ¶ 8, ECF #36. Following the merger, Local 737 was placed under a period of supervision by LIUNA, and Robert Abbott (“Abbott”), vice president of LIUNA and regional manager of the Northwest Region, was appointed as supervisor until Local 737 was removed from supervision in February 2017. Id. ¶¶ 3, 12.
Abbott appointed Culver as deputy supervisor and later appointed him as business manager of Local 737 in late 2016 or early 2017. Culver Decl. ¶¶ 15, 22.
Pursuant to its constitution, Local 737 has an executive board comprised of a president, vice president, recording secretary, secretary-treasurer, business manager, and two members elected by the membership. Union Const. art. IV, § sec. 4(H), ECF #35-11.
2. Age-Related Statements
Plaintiff, born in 1958, was 58 years old when he was terminated by Local 737 in April 2017. Yen Decl., Ex. 1 (Roy Dep. 20:14-16), ECF #33-1. At his deposition, plaintiff testified that Culver was “[a]lways introducing [him] as, ‘The old guy.'” Crispin Decl., Ex. 1, at 6 (Roy Dep. 39:18-19), ECF #44-1. Plaintiff asked Culver to stop calling him an “old guy, ” and Culver stopped for a “little while, ” but then resumed. Id. at 14 (Roy Dep. 80:5-25).
See Compl. ¶ 6, ECF #1.
In Culver's eyes, he and plaintiff “had a friendly working relationship.” Decl. Culver ¶ 13, ECF #35. Plaintiff teased Culver about his weight gain, and “there was a bantering culture when we worked in the field, as construction workers, ” which occasionally carried over a little in the office. Id. Culver recalled “an occurrence when I called Jack ‘old guy.'” Id. ¶ 14. He “meant it in a friendly way, and did not think of Jack as being old in age.” Id. Instead, he “thought of Jack as being one of the guys who had come with us from the old Locals that had merged into Local 737.” According to Culver, “Jack asked me not to call him [“old guy, ”] and I respected his request.” Id. While Culver presents a different view of the events, on summary judgment, the evidence must be viewed in the light most favorable to plaintiff.
Plaintiff also testified that at nearly every monthly union meeting in 2016 and 2017, Culver and Greg Held, vice president of Local 737, stated, “We need to get younger guys in here.” Id. at 6 (Roy Dep. 40:12-25). One time, Held said to plaintiff, “When are you going to retire? You're getting old.” Id. (Roy Dep. 40:3-9). On another occasion, in the winter of 2017, while plaintiff was helping remove snow and ice from the Local 737 parking lot, Held said, “Watch out, you know. Jack's-Jack's old, ” and, when plaintiff slipped on the ice, Held said, “He's old. Check to see he's okay.” Id. at 7 (Roy Dep. 43:14, 44:5-7).
Additionally, plaintiff testified that, a couple of months before his deposition in May 2019, Erin Macauley “called me and informed me she sat in a room down there when Greg Held said, ‘I gotta get rid of Jack. He's too old.' And Bob Abbott was in the room and said, ‘You better figure out a way to do it correctly, and - do it - do it where you can get rid of him without the membership being pissed.'” Crispin Decl., Ex. 1, at 15, 16 (Roy Dep. 129:15-21, 130:1-3), ECF #44-1. Macauley told plaintiff this happened “right before” plaintiff was terminated. Id. at 16 (Roy Dep. 130:4-6). Plaintiff described Macauley as a “training coordinator” or the “apprenticeship training person in charge” in the training center. Id. at 15 (Roy Dep. 129:10-12, 24-25).
3. Promotion to Lead Organizer
Plaintiff alleges he was denied a promotion to a “lead position” in February 2016. Compl. ¶ 16, ECF #1. However, two months later, on May 1, 2016, plaintiff was promoted to a lead organizer position with a $10,000 increase in pay. Culver Decl. ¶ 19, ECF #35. Culver recommended the promotion, and Abbott made the appointment. Abbott Decl. ¶ 10, ECF #36; Yen Decl., Ex. 1 (Roy Decl. 17:2-4), ECF #33-1. Three other lead organizers were born in 1954 and 1961, and when plaintiff was terminated, the person who assumed plaintiff's lead organizer position was born in 1962. Yen Decl., Ex. 1 (Roy Dep. 52:13-54:2), ECF #33-1.
4. Recording Secretary
Before the merger, plaintiff was recording secretary of Local 296, and claims he was subject to age discrimination when he was not appointed recording secretary of Local 737. Compl. ¶¶ 15, 19, ECF #1. As recording secretary of Local 296, plaintiff “took the minutes of the meeting, then . . . put them in a formatted form off the computer, copied them exactly as I wrote them in the book, so it was transcribed and then put them in a notebook.” Yen Decl., Ex. 1 (Roy Dep. 72:12-15), ECF #33-1. He also handled votes by phone and wrote letters. Id. (Roy Dep. 72:16-21); see also Union Const. art. IV, § 4, ECF #35-11 (describing duties of recording secretary). Plaintiff received no pay for being recording secretary or being on the executive board. Yen Decl. (Roy Dep. 72:4-9), ECF #33-1.
See Yen Decl., Ex. 1, ECF #33-1, at 59 (Report and Recommendation of Special Hearings Panel (September 27, 2017) 4 n.2).
As part of the merger, Abbott dissolved the executive boards of the three unions and selected the new board members for Local 737. Abbott Decl. ¶¶ 4, 8, ECF #36. In selecting the new board members, Abbott “wanted representation from each of the three former Locals” and decided not to appoint any former business managers to the board, including plaintiff, who had been business manager of Local 296. Id. ¶ 8. Culver did not take part in those decisions. Id. ¶ 7; Culver ¶ 16, ECF #35.
Abbott selected Bruce Roller (“Roller”) from Local 320 to be recording secretary of the new board. Id. ¶ 9. Roller was born in 1965. Culver Decl. ¶ 18, ECF #35; Yen Decl., Ex. 1 (Roy Dep. 73:24-25), ECF #33-1. Abbott also appointed to the Local 737 board five other men “who were about the same age as” plaintiff: Greg Held, born in 1957; Gary Jackson, born in 1954; Gary Moore, born in 1961, and Dave Tischer, born in 1962. Abbott Decl. ¶ 9, ECF #36; Culver Decl. ¶ 18, ECF #35.
At the time he prepared his declaration, Abbott was 54. Abbott Decl. ¶ 2, ECF # 36.
Plaintiff testified that when Culver informed him of the news that he would not be chosen as recording secretary, he remarked that plaintiff “did a phenomenal job, ” but said, “‘We're going into the age of putting it on computer,' and, you know, ‘You like writing on paper.'”Crispin Decl., Ex. 1, at 12 (Roy Dep. 70:1-5, 71:2, 72:22-25, 73:7-14), ECF #44-1.
Plaintiff also testified that he wanted to run for president but “I was never given a chance to run for any position because I was told it wouldn't be a good move to make” and “was never told why.” Yen Decl., Ex. 1 (Roy Dep. 70:7-9), ECF #33-1. Plaintiff spoke with Culver about running for president, but because of “hints” and “things that were said, ” plaintiff “realized [he] wasn't supposed to run.” Id. (Roy Dep. 75:7-11). Culver told plaintiff “it would not be a good political move, ” and “We're going in a different direction.” Id. (Roy Dep. 74:25-75:1, 17-18). These statements are vague and ambiguous and do not evidence a discriminatory motive. Accordingly, they are not discussed further.
5. Termination
At the end of March 2017, Culver saw plaintiff pull into the parking lot of the Local 737 office with an air conditioning/heating unit in his truck. Culver Decl. ¶ 26, ECF #35. Culver asked plaintiff about it, and plaintiff said he got it from a job site and was going to give it to Misty Dionne (“Dionne”), the office manager. Id. The employer at that job site was a signatory contractor. Yen Decl., Ex. 1 (Roy Dep. 24:16-18), ECF #33-1. According to Culver, “accepting gifts from contractors is against the law, against our Union Constitution, and it's not tolerated.” Culver Decl. ¶ 27, ECF #35. “Simply for those reasons, [Culver] felt that it was [his] responsibility as Business Manager to let [plaintiff] go.” Id.
Prior to terminating plaintiff, Culver called Abbott. Id. ¶ 28. Although Abbott's supervision of Local 737 had ended, Culver “continued to keep . . . Abbott informed about matters that I believed he should know about, because of his role as LIUNA Regional Manager.” Id. ¶ 25. Culver told Abbott that plaintiff had accepted an air conditioning/heating unit from a job site, and Abbott agreed that Culver had to dismiss plaintiff. Id. ¶ 28.
On April 17, 2017, Culver called plaintiff into his office. Id. ¶ 29. Held was also present. Id. Culver told plaintiff he was not allowed to accept gifts from contractors, told him he would no longer be allowed to be a representative of Local 727, and terminated him. Id. Culver claims his decision to terminate plaintiff “had nothing to do with his age.” Id. ¶ 30.
Pursuant to the union constitution, Culver then submitted a written charge to the Local 737 executive board, id. ¶ 34, and a trial board comprised of executive board members held a hearing on April 25, 2017. Yen Decl., Ex. 12, ECF #33-12. At the hearing, plaintiff admitted that he “went to the job and got [the air conditioning/heating unit], ” but claimed he “didn't get it from the contractor.” Id. at 6. Rather, plaintiff said he “got it from my son who was working there, ” and explained that he had taken the unit out of the back of his son's truck. Id. at 6-7.
In his defense, plaintiff called as a witness Howie Petker (“Petker”), superintendent of the job site, who told the trial board “it sounds like there's a misunderstanding.” Id. at 8. Petker described that he was finishing up a two-year, $30 million job and had a lot of product he was disposing of, including heaters, air conditioners, lights, cords, and other items that his equipment yard did not want back. Id. Because he did not want to throw these items away, he offered them to his craft workers, including plaintiff's son, Dylan Roy (“Dylan”), who “grabbed one of the AC units and a couple of heaters.” Id. at 8-9. Petker stated “apparently there was a presumption that it was going to” plaintiff but that was “[n]ot the case.” Id. at 9.
Petker said he was aware that plaintiff “was on site picking it up.” Id. at 9-10. In fact, during Petker's testimony, plaintiff said to Petker, “[Y]ou seen me there, ” and asked him, “Did you give me instruction on how to run it? I just want for that to be known, ” to which Petker replied, “Yeah.” Id. at 9. Plaintiff further admitted, “I check in every time I go there, ” and Petker added, “I like representation. I want to make sure my guys, my laborers, know who their rep is . . . [I]f they don't recognize them, that's a problem.” Id. at 10.
The trial board issued a written decision finding plaintiff violated Articles II and III of the union constitution by “knowingly receiving for personal use, an AC/heating unit on the job site within view of other Local 737 members while under full knowledge of a signatory contractor.” Culver Decl., Ex. 13, ECF #35-13. The trial board upheld plaintiff's termination and prohibited plaintiff from seeking or holding an elected office or field representative position with Local 737, but placed no restrictions on his membership and indicated he was “free to utilize the out of work list to seek work as any other rank-[and]-file member.” Id.
Plaintiff appealed the trial board's decision, and a hearing was held before a special hearings panel consisting of Terrence Healy, Vice President, Great Lakes Regional Manager and Special Assistant to the General President, and Rocco Davis, Vice President, Pacific Southwest Regional Manager and Special Assistant to the General President. Crispin Decl., Ex. 3 (Report and Recommendation Special Hearings Panel (“R&R”), ECF #44-3, at 20. The special hearings panel heard from plaintiff, Culver, and Held, and reviewed the transcript of the hearing that had taken place before the trial panel. Id.
Plaintiff's testimony mirrored his testimony before the trial panel, except plaintiff added that his son, who lived with him, brought home 30-40 items from the job site, which plaintiff did not believe was a problem. Id. ¶ 13. The special hearings panel also asked to hear from Dionne who testified plaintiff gave her the heating unit and asked her to return it when she was done. Id. ¶ 17. Dionne did not know where the unit came from, other than it was an “extra” from a job site. Id.
The special hearings panel issued a report and recommendation in which it recommended that plaintiff's appeal be denied:
20. In this case the Panel is persuaded that the conduct engaged in by Brother Roy should be censured. By accepting the heating unit under the circumstances described, his conduct easily could have sent the wrong message to our members and the contractor. Even if we were to accept Brother Roy's argument that the heating unit first went to his son, the undisputed facts are that it originated that same day from a signatory contractor. It makes little difference that the unit was first placed into his son's truck, then transferred into Brother Roy's truck, and later provided to Ms. Dionne. Given how close in time these transfers were, it could easily have been construed as a “single transaction” such that it could have been prohibited by federal law. More to the point, it was conduct that reflected poorly on the Local Union, and such conduct has been discouraged by the International Union in trainings-several of which Brother Roy has attended- time and again.
21. The ULUC states that both a Local Union and its members have an obligation to abide by LIUNA's “rules, regulations, policies [and] practices” and “refrain from conduct that would interfere with the performance of its lawful and contractual obligations” and “refrain from interfering with the proper conduct of all the business of the Organization.” ULUC, Art. II, . Section 3(b) & Art. III, Section 3(b), (c), and (d).
22. We find that Brother Roy's conduct in receiving the heating unit and bringing it back to the Union hall from the job site interfered with the Local's performance of its duties and regular business. Whether the conduct was unlawful or not, it raised serious questions for the Local about Brother Roy's judgment and the performance of his duties as a representative. He testified that he did not even consider it and issue, and had no concerns about how his conduct would be interpreted.
Instead of a lifetime ban, the special hearings panel recommended that plaintiff should be restricted from holding elected office in Local 737 for three years. R&R ¶ 23, ECF #44-3.
R&R ¶¶ 20-22, ECF #44-3, at 23-24. The LIUNA executive board adopted the report and recommendation and denied plaintiff's appeal, and the LIUNA national president sent plaintiff a letter to that effect on October 6, 2017. Crispin Decl., Ex. 3, at 19, ECF #44-3, at 19.
In response to the motion for summary judgment, plaintiff proffers a declaration by his son, Dylan, who states that he worked as a craft worker on Petker's job site and that Petker offered all craft workers the opportunity to take products that were going to be discarded at the end of the project. Dylan Roy Decl. ¶ 2, ECF #43. Petker gave Dylan permission to take several air conditioning and heating units. Id. ¶ 3. Dylan had several units in his car when he met plaintiff at the job site. Id. ¶ 4. Plaintiff asked if he could borrow one of the units for Dionne, and he and Dylan put it in plaintiff's truck. Id. ¶¶ 3-4. Dylan confirmed that he lived with plaintiff at the time. Id. ¶ 5.
This declaration is not dated or signed. See LR 11-1(a) (“Documents containing the signature of a Non-Registered User are to be filed electronically with the signature represented by an “s/” and the name typed in the space where a signature would otherwise appear.”).
Plaintiff also offers his deposition testimony that he retrieved the heating and air conditioning unit from his son's car and put it in his truck, which was “adjacent” to the job site, i.e., on a street behind the job site. Crispin Decl., Ex. 1, at 2 (Roy Dep. 22:4-8, 33:18-19), ECF #44-1. Plaintiff was at the job site for an hour and a half because “it takes that long to walk through every room in the building and find everybody.” Id. at 3 (Roy Dep. 26:9-10). Plaintiff testified, “I always go to that job site, ” and he was “[t]alking to the workers.” Id. (Roy Dep. 26:19, 24). He also checked in with Petker and told him, “Hey, the kid's got one of your air conditioning units. You got instructions for that thing?, ” and said he was going to loan it to the union secretary. Id. (Roy Dep. 27:13-19). Plaintiff testified that Petker handed the written instructions to plaintiff's son and showed plaintiff's son how to use the machine while plaintiff was present. Id. (Roy Dep. 30:2-9).
B. Timeliness of Plaintiff's Claims
Plaintiff alleges the following adverse employment actions:
(1) In February 2016, defendants denied plaintiff's application for promotion from field representative to a lead position. Compl. ¶ 16, ECF #1.
(2) In about March 2016, defendants “removed [plaintiff's] duties relating to Recording Secretary and from E-Board membership and delegate to District Counsel, ” id. ¶ 19, and “denied [him] a promotion to E-Board Recording Secretary, ” id. ¶ 15.
(3) On April 17, 2017, defendants falsely accused plaintiff of taking equipment from a contractor as a gift and terminated him. Id. ¶ 23.
An adverse employment action is one that “materially affect[s] the compensation, terms, conditions, or privileges of . . . employment.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). It includes, among other things, demotions and refusals to promote. Ray v.Henderson, 217 F.3d 1234, 1241 (9th Cir. 2000) (citing Wyatt v. City of Boston, 35 F.3d 13, 1516 (1st Cir. 1994). And it includes, “of course, termination of employment.” Little v.Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2002).
It is arguable whether the failure to appoint plaintiff as recording secretary constitutes an adverse employment action. Even assuming it is, any action other than plaintiff's termination is time-barred under both federal and state law. See Mot. Summ. J. 7, 9, ECF #32. On June 26, 2017, plaintiff filed an age discrimination complaint with the Oregon Bureau of Labor and Industries (“BOLI”), and cross-filed with the Equal Employment Opportunity Commission. Under state law in effect at the time, plaintiff had “one year after the alleged unlawful practice” to file his BOLI complaint. See former O.R.S. 659A.820(2); Request Judicial Notice, Ex. 1, ECF #37-1. Under the ADEA, plaintiff had 300 days from the allegedly discriminatory act to file his claim. 29 U.S.C. § 626(d)(1)(B). Thus, plaintiff's claims that he was denied a promotion in February 2016 and passed over for recording secretary in March 2016 are time-barred. The only adverse employment action at issue is plaintiff's termination on April 17, 2017.
This court may take judicial notice of former O.R.S. 659A.820, as defendants have requested. See Judith Basin Land Co. v. Fergus County, Mont., 50 F.2d 792, 794 (9th Cir. 1931) (“Courts of the United States take judicial notice of the laws of any state, whether depending on state statutes or judicial decisions.”); Request for Judicial Notice, ECF #37.
C. ADEA Claim
In Claim One, plaintiff asserts a claim under the ADEA, 29 U.S.C. § 623(a)(1), against Local 737. The ADEA provides it is unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). The prohibition is “limited to individuals who are at least 40 years of age.” Id. § 631(a).
To establish an ADEA claim, a plaintiff “must prove that age was the ‘but-for' cause of the employer's adverse decision.” Gross v. FBL Fin. Services, Inc., 557 U.S. 167, 176 (2009). The text of the ADEA does not authorize a mixed-motives age discrimination claim. Id. at 175.
An ADEA claim may be established by direct or circumstantial evidence; however, neither type of evidence is sufficient to support plaintiff's claim here.
1. Direct Evidence
a. Relevant Law
“Direct evidence, in the context of an ADEA claim, is defined as ‘evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude . . . sufficient to permit the factfinder to infer that that attitude was more likely than not a motivating factor in the employer's decision.'” Enlow v.Salem-Keizer Yellow Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004) (citations omitted) (emphasis in original). “Direct evidence of discriminatory intent consists of ‘evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.'” Mayesv. WinCo Holdings, Inc., 846 F.3d 1274, 1280 (9th Cir. 2017) (quoting Aragon v. Republic SilverState Disposal Inc., 292 F.3d 654, 662 (9th Cir. 2002) (alteration in original); see also County of Tuolumne v. Sonora Community Hosp., 236 F.3d 1148, 1155 (9th Cir. 2001) (holding that direct evidence is “explicit and requires no inferences to establish the proposition or conclusion being asserted”). “Direct evidence typically consists of clearly sexist, racist, or similarly discriminatory statements or actions by the employer.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005).
“When the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial.” Godwinv. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998), as amended (Aug. 11, 1998). In fact, “it need be ‘very little.'” Id. (quoting Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1998); see, e.g., Lindahl, 930 F.2d at 1438 (finding direct evidence of sexual stereotyping where employer believed that female candidates get “nervous” and “easily upset”); Cordova v. StateFarm Ins. Companies, 124 F.3d 1145, 1150 (9th Cir. 1997) (finding direct evidence of race discrimination where employer referred to a Mexican-American employee as a “dumb Mexican”); Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1111 (9th Cir. 1991) (finding direct evidence of discriminatory motive where supervisors referred to plaintiff as “an old warhorse” and her students as “little old ladies, ” and made other derogatory remarks while singling plaintiff out for different treatment).
However, to “defeat summary judgment, [the direct evidence] must be . . . directly tied to the adverse employment decision.” France v. Johnson, 795 F.3d 1170, 1173 (9th Cir. 2000); see id. (collecting cases). Thus, stray remarks and ambivalent statements about an employee's age, even by a supervisor, are insufficient to show a discriminatory motive. See Nidds v. SchindlerElevator Corp., 113 F.3d 912, 918-19 (9th Cir. 1996) (holding a supervisor's ambiguous comment that he intended to get rid of all “old timers” who did not “kiss my ass” did not support inference of discriminatory motive because it could refer to longtime employees or those who failed to follow directions); Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (finding statement by supervisor that “[w]e don't necessarily like grey hair” was stray remark uttered in an ambivalent manner and not tied to plaintiff's termination); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438 (9th Cir. 1990) (holding statement by hiring executive that he chose younger candidate because he was “a bright, intelligent, knowledgeable young man” was a stray remark that was insufficient to establish discrimination).
d. Analysis
There is no direct evidence that plaintiff was terminated because of his age. Ambivalent statements such as “We're going into the age of putting it on computer” and “You like writing on paper” do not constitute direct evidence of age discrimination. Crispin Decl., Ex. 1, at 12 (Roy Dep. 70:3-5), ECF #44-1. Such remarks are not “clearly” ageist; they do not establish discriminatory animus without an inference or presumption. See Mayes, 846 F.3d at 1280; Coghlan, 413 F.3d at 1095 (holding “[d]irect evidence typically consists of clearly sexist, racist, or similarly discriminatory statements or actions by the employer”). They also could reasonably pertain to plaintiff's computer skills or unwillingness to embrace technology rather than his age. See Nidds, 113 F.3d at 919 (finding ambiguous statements are not enough to create an inference of age discrimination). In fact, the person who was appointed recording secretary was born in 1965 and therefore not much younger than plaintiff. Culver Decl. ¶ 18, ECF #35. The same is true about the statement at union meetings that “We need to get younger guys in here.” This statement does not reference plaintiff or his age, and could reasonably be construed as a call to increase membership and longevity of the newly-formed union. Plaintiff's son, who was an apprentice, is an example of such a “younger guy.”
As Culver explained in his declaration, Local 737 “transitioned from paper to electronic records” in early 2017. Culver Decl. ¶ 7, ECF #35.
See Ohmie Decl. ¶ 5, ECF #34 (interpreting comments “about the need to get young guys or new guys in, and get them to come to union meetings” to “mean that the Union needs to be sustained over time, so we need to keep spreading the word to get new people to come in and participate, ” i.e., “keeping the Laborers going strong in the future, ” and “not about excluding anyone or getting rid of anyone”).
See Dylan Roy Decl. ¶ 2, ECF #43.
Also, importantly, none of these statements or others, like calling plaintiff an “old guy” and asking when he was going to retire, were “directly tied to the adverse employment decision” to terminate plaintiff. France, 795 F.3d at 1173. Absent that nexus, they do not constitute direct evidence of discrimination. Id.; see also U.S. E.E.O.C. v. Republic Services, Inc., 640 F.Supp.2d 1267, 1286 (D. Nev. 2009) (“[T]he use of the term ‘old man' a few times has not been connected to Wilson's termination either in conduct or in closeness of time. They are therefore nothing more than stray remarks, which are insufficient to constitute direct evidence of age discrimination.”).
The only possible direct evidence would be Held's statement to Abbott, “I gotta get rid of Jack. He's too old, ” and Abbott's response. However, these statements are offered in the form of double hearsay-i.e., plaintiff's testimony about what Macauley overheard. “A trial court can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank ofAm., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
Plaintiff contends that each level of hearsay is excluded under Federal Rules of Evidence 801(d)(2)(A), (B), and (D), which provide that a statement is not hearsay if “[t]he statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true; . . . [or]
(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed.”Resp. 5 n.2, ECF #42; see FED. R. EVID. 805 (“Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.”).
None of these provisions apply to Macauley's statements. By plaintiff's own testimony, Macauley is merely an apprentice trainer. With respect to Rule 801(d)(2)(A), there is no evidence that Macauley's statements were made by Local 737 in an individual or representative capacity. With respect to Rule 801(d)(2)(B), there no evidence that Macauley's statements were ones Local 737 manifested that it adopted or believed to be true.
Finally, with respect to Rule 801(d)(2)(D), Macauley's statement was not one “made by [Local 737's] agent or employee on a matter within the scope of that relationship.” FED. R. EVID. 801(d)(2)(D) (emphasis added).
[Rule 801(d)(2)(D)] sets forth three elements necessary for admitting a statement that would otherwise be excluded as hearsay: (1) the statement must be made by an agent or employee of the party against whom the statement is being offered; (2) the statement must concern a matter within the scope of that employment relationship; and (3) the statement must be made while the declarant is yet employed by the party. There is no additional requirement that the declarant must still be in the same scope of employment at the moment the statement is made. The Rule's language is unambiguous. The second element requires that the statement concern a matter that was at some time within the scope of the declarant's employment. The third element requires only that the statement be made while the declarant is yet employed; it does not require that the declarant still be in the same position that resulted in the matter being within the scope of the employment relationship.Weil v. Citizens Telecom Services Co., LLC, 922 F.3d 993, 999 (9th Cir. 2019) (emphasis added).
“With respect to the second element, a statement may concern a matter within the scope of employment-even though the declarant is no longer involved with that particular matter when the statement is made-so long as the declarant was involved with that matter at some prior point in his or her employment.” Id. (emphasis added); see also id. (noting that former Rule 801(d)(2)(D) “excluded from the definition of hearsay a statement offered against a party made ‘by his agent or servant concerning a matter within the scope of his agency or employment”) (emphasis added). “Additionally, a matter may fall within the scope of a declarant's employment even though the declarant did not have final decision-making authority on that matter.” Id. The court “focus[es] the scope inquiry on whether the declarant was involved in a process leading up to a challenged decision, rather than focusing on whether the declarant was a final decision-maker.” Id. (emphasis added).
The decision in City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548 (11th Cir. 1998), illustrates the application of Rule 801(d)(2)(D) in the context of double hearsay. There, the original declarant's statements, which pertained to chlorine pricing and sales, were admissible under Rule 801(d)(2)(D) because chlorine pricing and sales were within the scope of that declarant's employment. Id. at 561. However, the second declarant's statements were inadmissible because “chlorine pricing was not substantially within the scope of the [second declarant's] employment.” Id. “Because the content of [the second declarant's] statements did not concern a matter within the scope of his employment or agency, ” the court held “they do not fall within the party admission exception in Rule 801(d)(2)(D).” Id. This holding is in line with cases across the country that have limited the application of Rule 801(d)(2)(D) to statements made within the declarant's scope of employment. See Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1565-66 (11th Cir. 1991) (collecting cases; holding statement by cabin steward regarding problems with automatic sliding glass door near pool area was not within the scope of his employment, which was to clean rooms in a different area of the ship).
The analysis is no different for an age discrimination claim. In Brazill v. CaliforniaNorthstate College of Pharm., LLC, 949 F.Supp.2d 1011 (E.D. Cal. 2013), the plaintiff offered his testimony that two administrative assistants told him they heard the college president state that he preferred working with younger workers who had energy and could keep up with him. Id. at 1022. The court held that “[w]hile [the president's] statement may fall within an exception to the hearsay rule” under Rule 801(d)(2)(D), “the assistants' recounting of [the president's] alleged bias does not.” Id.
Here, while Held's and Abbott's statements may have been made within the scope of their employment, there is no evidence that Macauley was “involved with that particular matter” about which her statement was made or that she was “involved in a process leading up to the challenged decision” to terminate plaintiff's employment. Weil, 922 F.3d at 999. Macauley trained apprentices. Plaintiff was not an apprentice but a lead organizer who had been a union member since 1998 and business manager of Local 296 before the merger. R&R 4 n.2, ECF #33-1, at 62. At oral argument, plaintiff argued the fact that Macauley heard Held and Abbott speaking while she “sat in a room down there” shows she was somehow involved in the process leading up to plaintiff's termination. Pl. Dep. 129:15-16, ECF #44-1. But this is not a reasonable inference to be drawn from the evidence, and mere speculation is not allowed. See British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978) (“A mere scintilla of evidence will not do, for a jury is permitted to draw only those inferences of which the evidence is reasonably susceptible; it may not resort to speculation.”). Plaintiff thus has failed to provide any direct evidence of age discrimination.
2. Circumstantial Evidence-Three-Stage Burden-Shifting Test
a. Relevant Law
Where an ADEA claim is predicated on circumstantial evidence, the court applies the three-stage burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Diaz v. Eagle Produce Ltd. Partn., 521 F.3d 1201, 1207 (9th Cir. 2008). This burden-shifting scheme is designed to ensure that the “‘plaintiff [has] his day in court despite the unavailability of direct evidence.'” Enlow, 389 F.3d at 812.
In a termination case, a plaintiff can establish a prima facie case of ADEA discrimination by demonstrating that he was (1) at least forty years old, (2) performing his job satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise “giving rise to an inference of discrimination.” Diaz, 521 F.3d at 1207 (quoting Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000)). Thus, even where the plaintiff was not replaced by a substantially younger employee, “prima facie proof is possible . . . if ‘other direct or circumstantial evidence supports an inference of discrimination.'” Inman v. Sec. of Army, 908 F.2d 976 (9th Cir. 1990) (quoting Douglas v. Anderson, 656 F.2d 528, 533 (9th Cir. 1981)); see also Diaz, 521 F.3d at 1207.
“The requisite degree of proof necessary to establish a prima facie case for . . . 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), as amended on denial of reh'g (July 14, 1994). Otherwise stated, “very little evidence is required to establish a prima facie case.” Id. at 891.
“If the employee has justified a presumption of discrimination, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment action.” Diaz, 521 F.3d at 1207 . “If the employer satisfies its burden, the employee must then prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination.” Id.
b. Prima Facie Case
Only the fourth element is at issue here. Local 737 did not hire anyone to replace plaintiff and later reassigned his job duties to an existing employee who was born in 1962. Yen Decl., Ex. 1 (Roy Dep. 52:13-24). This is not a “substantially younger employee.” See, e.g., Beverly v. Abbott Laboratories, 17 C 5590, 2019 WL 3003352, at *9 (N.D. Ill. July 10, 2019) (holding someone who was four years younger was not a “substantially younger” employee).
Plaintiff contends that, nevertheless, the “pervasive nature” of the age-related statements constitute circumstances “giving rise to an inference of age discrimination.” Diaz, 521 F.3d at 1207-08. He argues that the age-related statements in this case “go[] way beyond the . . . occasional ‘stray remark' that can be ignored.” Resp. 21, ECF #42; see Hartung v. Cae Newnes, Inc., 229 F.Supp.2d 1093, 1100 (D. Or. 2002) (finding that numerous statements were not “stray” in the sense they were not single remarks, and when read together, showed an age-related prejudice). The statements at issue have been discussed at length above. Suffice to say, only admissible statements may be considered, and the only admissible statements in this case were ambiguous and not made in the context of plaintiff's termination. A “comment . . . uttered in an ambivalent manner and . . . not tied directly to [plaintiff's] termination . . . is at best weak circumstantial evidence of discriminatory animus.” Nesbit, 994 F.2d at 705.
Nevertheless, the court assumes that plaintiff has met the minimal burden of establishing a prima facie case and proceeds to the next step in the analysis.
c. Defendant's Justification
Once a plaintiff establishes aprimafacie case of discrimination, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Diaz, 521 F.3d at 1207. This is merely a burden of production as the ultimate burden of persuasion remains with the plaintiff at all times. Chuang, 225 F.3d at 1123-24; Siring v.Oregon State Bd. of Higher Educ. ex rel. E. Oregon Univ., 927 F.Supp.2d 1030, 1053 (D. Or. 2012).
Here, Local 737 has offered evidence that the reason for plaintiff's termination was not his age, but his acceptance of an item of value from a contractor at a job site. See R&R ¶¶ 20-22, ECF #44-3. This is a legitimate, nondiscriminatory reason. Thus, the burden shifts back to plaintiff to show that Local 737's reason was merely pretext. Diaz, 521 F.3d at 1207.
d. Plaintiff's Evidence of Pretext
A plaintiff can establish there is a genuine issue of material fact regarding pretext “(1) indirectly, by showing that the employer's proffered explanation is ‘unworthy of credence' because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.” Shelley v. Geren, 666 F.3d 599, 609 (9th Cir. 2012) (quoting Chuang, 225 F.3d at 1124). “When the plaintiff has some direct evidence but also must rely on circumstantial evidence to show pretext, [the court] treat[s] direct and circumstantial evidence alike, . . . and . . . consider[s] both types of evidence cumulatively.” France, 795 F.3d at 1175 (citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003); Raad v.Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th Cir. 2003)).
Here, there is no direct evidence of pretext. Thus, the analysis hinges on whether Labor 737's “proffered explanation is ‘unworthy of credence,' because it is internally inconsistent or otherwise not believable.” Shelley, 666 F.3d at 609. Because “the evidence of pretext is circumstantial, rather than direct, the plaintiff must present ‘specific' and ‘substantial' facts showing that there is a genuine issue for trial.” Noyes v. Kelly Services, 488 F.3d 1163, 1170 (9th Cir. 2007). That requirement is “tempered” by the “observation that a plaintiff's burden to raise a triable issue of pretext is ‘hardly an onerous one.'” Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011) (citing Noyes, 488 F.3d at 1170 (quoting Payne v. NorwestCorp., 113 F.3d 1079, 1080 (9th Cir. 1997)).
As evidence of pretext, plaintiff offers the same circumstantial evidence he put forth to establish his prima facie case. See Coleman, 232 F.3d at 1282 (holding a plaintiff “may rely on the same evidence [he] used to establish a prima facie case or put forth additional evidence”). Again, these statements, which have no nexus to plaintiff's termination, are “at best weak circumstantial evidence of discriminatory animus.” Nesbit, 994 F.2d at 705; see Black v. GrantCounty Pub. Util. Dist., 820 F. App'x. 547, 550 (9th Cir. 2020) (upholding summary judgment on age discrimination claim that relied on “weak circumstantial evidence” of pretext).
To bolster his position, plaintiff argues that Culver failed to conduct an investigation and “[s]uch a sloppy investigation is evidence of pretext.” Resp. 23, ECF #42 (citing Humphries v. CBOCS West, Inc., 474 F.3d 387, 407 (7th Cir. 2007), afd on other grounds, 533 U.S. 442 (2008); Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 414-415 (6th Cir. 2008); Heaton v. The Weitz Co., Inc., 534 F.3d 882, 890-891 (8th Cir. 2008); Fonseca v. Sysco FoodServices of Arizona, Inc., 374 F.3d 840, 850 (9th Cir. 2004)).
At the trial board hearing, plaintiff claimed he “never got to say a word” during the meeting where Culver terminated him. Culver Decl., Ex 12, at 5, ECF #35-12. Culver described that he “brought [plaintiff] in to have a conversation about his actions of accepting a gift from a contractor in the form of a heating and air-conditioning unit, ” and plaintiff admitted he received it from a contractor. Id. at 5. Culver says that he then asked plaintiff if he recognized it was an unacceptable practice, plaintiff responded that he did, and Culver terminated him. Id. at 5-6.
However, plaintiff fails to explain how, on this record, Culver's lack of investigation makes any difference in assessing whether the reason for plaintiff's termination was pretext. Even assuming Culver failed to conduct an investigation, the record shows that plaintiff was given the opportunity to present his version of the events to both the trial board and the special hearings panel convened by the General Executive Board of LIUNA. Importantly, the special hearings panel was not comprised of individuals from Local 737 but, rather, officers from the Great Lakes and Pacific Southwest regions. Crispin Decl., Ex. 3, at 20, ECF #44-3.
The special hearings panel did not disbelieve plaintiff's version of the events. Rather, it found that “[e]ven if [it] were to accept” what plaintiff said was true and “the heating unit first went to his son, the undisputed facts are that it originated that same day from a signatory contractor.” R&R ¶ 20, ECF #44-3. The panel noted “[i]t makes little difference that the unit was first placed into his son's truck, then transferred into [plaintiff's] truck.” Id. “Given how close in time these transfers were, ” it could have been construed as a “single transaction” for purposes of violating federal law. Id. But, “[m]ore to the point, it was conduct that reflected poorly on the Local Union, and such conduct has been discouraged by the International Union in trainings-several of which [plaintiff] has attended-time and again.” Id. The panel observed that “union representatives are held to special standards of conduct under federal labor laws, ” id. ¶ 18, and plaintiff should have been aware of this, as he was a long-term union member and former elected official who had attended several leadership trainings. Id. ¶ 23. However, plaintiff “testified that he did not even consider it an issue, and had no concerns about how his conduct would be interpreted.” Id. ¶ 22.
In sum, the panel found that plaintiff's conduct “interfered with the Local's performance of its duties and regular business” and “raised serious questions . . . about [his] judgment and the performance of his duties as a representative.” Id. The panel recommended that plaintiff's appeal be denied, and the General Executive Board of LIUNA adopted that recommendation and upheld plaintiff's termination. Id. at 19. Plaintiff was notified of the decision in a letter signed by LIUNA's national president on letterhead from Washington, D.C. Id.
This evidence “undercuts any inference of discrimination.” Black, 820 F. App'x. at 550. Plaintiff offers no evidence that LIUNA's president, the LIUNA General Executive Board, or the special hearings panel members, who were from different areas of the country, were in cahoots with Local 737 or harbored a discriminatory animus against him. The fact that the justification for plaintiff's termination was affirmed on a national level, based on plaintiff's self-admitted conduct, is strong evidence that plaintiff was not fired “because of' his age, but because of “serious questions” regarding his judgment, his lack of insight, and his failure to perform his duties as a union representative.
Plaintiff claims Local 737's explanation for his termination is “belied by the fact that two of the Executive Board members involved had themselves been involved in directly taking items of value from job sites.” Resp. 6, ECF #42. Certainly, evidence that other employees had engaged in similar misconduct without suffering the same consequences could be probative of pretext. However, plaintiff's proffered evidence is not specific and substantial.
Plaintiff testified that Held received “a couple of pieces of pipe for his fireplace ring” from “somewhere and then they took it to” a pipe fitters' union, “cut it there, ” and plaintiff retrieved it. Crispin Decl., Ex. 1 (Roy Dep. 59:7-13), ECF #44-1. When asked about the date on which this occurred, plaintiff said, “[That] was before 737. Don I ask me the year, because I don't remember ” Id. (Roy Dep. 59:20-21) (emphasis added). Plaintiff also could not remember the name of the employer of the construction site where the pipe came from: “Where they got it from, I couldn't tell you. I don't know.” Id. (Roy Dep. 60:2-8) (emphasis added). This does not constitute specific and substantial evidence. No rational trier of fact would find for plaintiff on such vague details.
Plaintiff also testified that when he and Moore were members of Local 296 and doing demolition work at a hospital, Moore took “a lot” of “lead off the sheetrock walls” of an x-ray room to make fishing weights. Crispin Decl., Ex. 1, at 8 (Roy Dep. 57: 21-22, 30), ECF #44-1. Plaintiff knows this because he was present when Moore took the lead and helped Moore make the weights using plaintiff's molds. Id. (Roy Dep. 57:18, 58:16, 19-20). Plaintiff recalled that Moore said he had permission from the contractor. Id. (Roy Dep. 58:24-59:1). Plaintiff could not remember the year this happened, but said it occurred “before [Local] 737.” Id. (Roy Dep. 57:5-7). Moore testified this happened “many, many years ago, ” and that plaintiff “got the lead also.” Crispin Decl., Ex. 2 (Moore Dep. 17:11-12, 18), ECF #44-2.
Thus, to establish pretext, plaintiff offers evidence that he was involved in another incident regarding the taking of property from a job site, but was not punished. Nevertheless, these events occurred before Local 737 was formed and before Culver, who terminated plaintiff, was business manager. Moreover, this evidence does not show that, because of his age, plaintiff was treated differently than younger employees who had committed the same misconduct. Held, born in 1957, is older than plaintiff. Yen Decl., Ex. 7 (Held Dep. 20:2-3), ECF #33-7. And Moore, born in 1961, is only three years younger than plaintiff. Culver Decl. ¶ 18, ECF #35.
For these reasons, the incidents involving Held and Moore do not constitute specific and substantial evidence that Local 737's decision to terminate plaintiff was a pretext for age discrimination.
It is unclear whether the same actor inference applies here because although Culver was the decision-maker in terminating plaintiff, it appears he was not the final decision-maker in promoting plaintiff. In any event, the same actor inference is not necessary to resolve this case in Local 737's favor. Local 737 claims it is entitled to the “same actor” inference. “Where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.” Schechner v. KPIX-TV, 686 F.3d 1018, 1026 (9th Cir. 2012) (citation omitted). The same-actor inference is “a ‘strong inference' that a court must take into account on a summary judgment motion.” Id. (quoting Coghlan, 413 F.3d at 1098) (quotation marks omitted). “The inference applies to favorable employment actions other than hiring, such as promotion.” Id. (citing Coghlan, 413 F.3d at 1097).
In sum, there is no genuine issue of material fact regarding whether plaintiff was terminated “because of' his age, i.e., that age was the “but for” cause of his termination. The ADEA does not allow for mixed-motives claims. Accordingly, summary judgment must be granted in Local 737's favor.
D. State Age Discrimination
In Claim Two, plaintiff asserts an age discrimination claim against Local 737 and Culver pursuant to Oregon law, O.R.S. 659A.030(a)-(c). O.R.S. 659A.030(a) and (b) provide it is an unlawful employment practice “[f]or an employer, because of an individual's . . . age if the individual is 18 years of age or older . . . to refuse to hire or employ the individual or to bar or discharge the individual from employment' or “discriminate against the individual in compensation or in terms, conditions or privileges of employment.' O.R.S. 659A.030(c) provides that it is unlawful “[f]or a labor organization, because of an individual's . . . age if the individual is 18 years of age or older . . . to exclude or to expel from its membership the individual or to discriminate in any way against the individual or any other person.”
“Courts apply the same prima facie standard to federal and state claims for disparate treatment, including claims arising under the ADEA.” Kennedy v. Interfor U.S., Inc., 1:16-CV-01959-CL, 2018 WL 3097556, at *5 (D. Or. Mar. 9, 2018), report and recommendation adopted, 2018 WL 3094875 (D. Or. June 21, 2018) (citing Henderson v. Jantzen, Inc., 79 Or.App. 654, 657 (1986)). Moreover, “[w]here, as here, the district court has supplemental, rather than diversity, jurisdiction over the state discrimination claims, the McDonnell Douglas burdenshifting framework applies to both the federal and state discrimination and retaliation claims.” Id. (citing Dawson v. Entek Int'l, 630 F.3d 928, 934-35 (9th Cir. 2011); see also Shepard v. Cityof Portland, 829 F.Supp.2d 940, 953-54 (D. Or. 2011); Ahmed v. Mid-Columbia Med. Center, 673 F.Supp.2d 1194. 1207 (D. Or. 2009); Siring, 927 F.Supp.2d at 1052-53; Snead v.Metropolitan Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th Cir. 2001) (“[W]hen entertaining motions for summary judgment in employment discrimination cases arising under state law, federal courts sitting in diversity must apply the McDonnell Douglas burden-shifting scheme as a federal procedural rule.”).
Plaintiff's state claims fail for the same reasons that his ADEA claim fails. Accordingly, no further analysis is necessary.
III. Remaining Arguments
Defendants also move for summary judgment on grounds that (1) Local 737 did not have enough employees during the relevant time period to be an “employer” under the ADEA; and (2) Culver was a primary actor and therefore cannot be held liable for aiding and abetting under Oregon age discrimination statutes.
There appear to be disputed issues of fact on those issues. However, as defendants are otherwise entitled to summary judgment on the sufficiency of the claims, it is unnecessary to reach those arguments.
RECOMMENDATIONS
Defendant's Motion for Summary Judgment (ECF #32) should be GRANTED and this case should be dismissed with prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, November 20, 2020. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.