Opinion
Civil No. 99-1556-HA
March 8, 2001
OPINION AND ORDER
I. Introduction
Pending before the court is defendants' motion for summary judgment in this employment — discrimination case. Defendant Evergreen Oregon Health Case Portland, L.L.C. operates Evergreen Karrington Health and Rehabilitation Center, a residential nursing facility for the elderly. Plaintiff, an African-American female, worked as a certified nurse's assistant at Evergreen Karrington. Plaintiff alleges that she was subjected to verbal harassment based on her race and gender by her supervisor Defendant Dale. Plaintiff maintains that after she complained of the discrimination to Defendant Cleveland, she was subjected to harsher treatment than her colleagues and then reprimanded on false charges. Plaintiff ultimately resigned her position and brought this action based on her constructive discharge. She alleges the following claims: (1) discrimination based on race and gender in violation of Title VII; (2) discrimination based on race in violation of 42 U.S.C. § 1983; (3) retaliation in violation of Title VII; (4) discrimination in violation of Oregon's anti-discrimination statute, ORS 659.030; (5) wrongful termination of her employment in violation of Oregon common law; (6) intentional infliction of emotional distress; and (7) breach of contract.
II. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(c) mandates entry 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 judgment as a matter of law." The purpose of a motion for summary judgment is to determine whether a "genuine issue of material fact" exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510(1986). A "material fact" is a fact "that might affect the outcome of the suit under the governing law." Id. A "genuine issue" regarding a material fact exists "if the evidence is such that a reasonable jury could return a verdict for a nonmoving party." Id. Summary judgment is properly granted only if, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, it is clear no genuine issue of material fact remains and the case may be decided as a matter of law. Rose v. Wells Fargo Co., 902 F.2d 1417, 1420 (9th Cir. 1990); Palmer v. United States, 794 F.2d 534, 536 (9th Cir. 1986). The Ninth Circuit has made clear that the standard for granting summary judgment in employment cases is particularly high. Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). "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).
III. Discussion
Plaintiff has produced sufficient evidence to withstand summary judgment on all but one of her claims. With respect to her discrimination claims, plaintiff has submitted evidence that as an African-American female, she was a member of protected class, and that she was performing her job in a satisfactory manner (as evidenced by the commendations of her co-workers). (See Simpson and Robinson Affs.) Plaintiff has also submitted evidence that the defendants made her working conditions intolerable because of her race and gender. According to plaintiff and other employees, Defendant Dale made remarks denigrating African-Americans and African-American women, such as telling plaintiff that "all black women" are "too intimidating and aggressive" and that plaintiff needed to "get in touch with her feminine side." (White Aff. at § 12.) According to plaintiff, Defendant Dale also told her that "African-American females hav[e] more male hormones than female hormones." (Id.) This statement, made during an assessment of plaintiff's job performance, constitutes direct evidence of discrimination. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (racial slurs and sexist remarks about employees are direct evidence of racial and gender bias).
After plaintiff complained to Defendant Cleveland about Dale's remarks, the defendants began to subject her work to harsher scrutiny that of other employees and assigned her to perform less desirable tasks than other employees. (Simpson Aff. at §§ 4 and 6.) In addition, plaintiff has submitted the affidavit of an employee who avers that Defendant Dale forced her to write a note stating that plaintiff had intimidated her, even though it was not true. (Id. at § 5.) Plaintiff was then reprimanded by Dale for the incident. Plaintiff was also reprimanded for taking days off work that had previously been approved. (White Aff. at § 3; Plaintiff's Ex. 4 at ¶ 2.) This evidence is sufficient for a jury to conclude that "a reasonable person in [plaintiff's] position would have felt that she was forced to quit because of intolerable and discriminatory working conditions." Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir. 1994). Under the McDonnell-Douglas analysis, the burden switches to the employer to offer a legitimate, non-discriminatory reason for its actions. Defendants contend that plaintiff was reprimanded because of insubordination and absenteeism; however, plaintiff has rebutted this contention with evidence that Evergreen Karrington's charges of insubordination and absenteeism were manufactured. Thus, viewed in a light most favorable to plaintiff, a jury could conclude that defendant's proffered reasons for her firing were pretextual.
In addition, plaintiff has established a claim for retaliation. In order to prove a retaliation claim under Title VII, "plaintiff must show (1) involvement in a protected activity, (2) an adverse employment action, and (3) a causal link between the two." Brooks v. City of San Mateo, 214 F.3d 1082, 1092 (9th Cir. 2000). As noted above, after plaintiff complained about Defendant Dale's conduct, she was allegedly reprimanded on false charges, and her work was assigned and inspected in a discriminatory manner. A reasonable jury could find that these actions were taken in retaliation for plaintiff's complaints about Dale's conduct. See Brooks, 214 F.3d at 1093 (significant detrimental actions by the employer after the protected activity qualify as acts of retaliation).
Moreover, plaintiff has established a claim for wrongful discharge. "Under Oregon law, a plaintiff may bring a common law discharge claim when terminated as a result of his or her pursuit of a job-related right." Pavon v. Swift Transp. Co., 192 F.3d 902, 909 (9th Cir. 1999). Plaintiff has a right not to be verbally harassed by her supervisor based on her race and gender. After plaintiff complained to Defendant Dale's supervisor, she was subjected to false accusations of misconduct and treated different than other employees. Plaintiff has produced sufficient evidence to support her claim for wrongful discharge.
Furthermore, plaintiff has established a claim for intentional infliction of emotional distress.
To state a claim for intentional infliction of severe emotional distress, a plaintiff must plead that (1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's acts were the cause of the plaintiff's severe emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.
McGanty v. Staudenraus, 321 Or. 532, 542 (1994). Although defendants argue that plaintiff has not shown an intent to inflict emotional distress, that issue is for the jury to decide. In addition, although defendants argue that their actions did not transgress the bounds of socially tolerable conduct, the court is unable to find that, on the basis of the summary-judgment record, the defendants' conduct was not sufficiently outrageous. Therefore, summary judgment is inappropriate on this claim.
Finally, plaintiff's claim for breach of contract must be dismissed. Plaintiff admitted during her deposition that she was an at-will employee and had no written or oral contract. (White Dep. at 138-39.) Plaintiff has also failed to respond to the defendants' motion with respect to this claim. Therefore, summary judgment is granted against plaintiff's breach-of-contract claim.
IV. Conclusion.
Defendants' motion for summary judgment, (doc. 26), is granted in part and denied in part. The motion is granted with respect to plaintiff's breach-of-contract claim, and the remainder of the motion is denied. Furthermore, defendants' motion to strike, (doc. 65), is granted in part and denied in part. The BOLI complaint of Tammy Drake is stricken as hearsay; the remainder of the motion to strike is denied.
IT IS SO ORDERED.