Opinion
Civil No. 04-6015-TC.
October 15, 2004
ORDER
BACKGROUND
Plaintiff was hired on May 29, 2001 as a Personnel Specialist for the Department of Public Safety for defendant Lane County. As per the general practice, plaintiff was hired on a probationary basis for her first year. Her immediate supervisor was Captain John Clague until his transfer in February 2002, at which time plaintiff reported directly to the Sheriff.
Almost from the start of plaintiff's employment, it became clear that it might not always be smooth sailing. Among the many allegations plaintiff makes in support of her case are the following.
A month after plaintiff was hired, the Sheriff's executive secretary told her that the Sheriff was "old-fashioned," and, for example, liked to hold doors open for women. She told plaintiff that the Sheriff might get upset if that custom was denied him. Plaintiff indicated that the Sheriff's feelings on the subject were nice, but that if they approached a door at the same time she would just as soon open it herself. Around that same time, Clague told plaintiff that she needed to slow down, as he didn't want another female crying in his office. When plaintiff responded that if she got stressed out, she could go shopping, Clague replied that that idea was fine as long as her husband and credit cards could handle it.
In July 2001, plaintiff was informed by a female sergeant that she had been the victim of sexual harassment, but the County had swept it under the rug. Plaintiff reported this to the Sheriff, who asked her to investigate further. However, when plaintiff reported the initial findings of her examination to Clague, he told her that the sergeant was a complainer and to drop the matter as it wasn't worth wasting any more time on. During this time period, plaintiff also discovered that the Sheriff's Office required each employee, as a part of their annual evaluation, to sign a statement certifying that the employee either has not seen any sexual harassment or discrimination, or, if the employee has seen any, that the employee has reported it. Plaintiff felt that the form was intimidating for employees, and so reported to the Lane County Human Resources office.
In October 2001, plaintiff attended an annual training session provided to Sheriff's Office employees on harassment in the workplace. She informed Clague that other employees attending the training treated it as a joke.
In late 2001, plaintiff reported to Clague and the Sheriff that the physical fitness test used by the department — which involves removing a 160-pound dummy from a car and dragging it over a distance of 20 yards — screened out more women than men. She recommended lowering the standards, but was told that the standards were set high on purpose, and the standards were not changed.
In December 2001, plaintiff attended a Christmas party hosted by the Lane County Peace Officers' Association — the deputies' union. At the event a variety of alcohol-fueled behaviors — including some that could be considered sexual harassment — occurred, which were reported by multiple individuals. Plaintiff alleges that she contacted Clague and suggested that the department make a clear, unambiguous statement that such behavior would not be tolerated, and could not recur. However, Clague allegedly told plaintiff that the function was sponsored by the union and was not a county concern, thus plaintiff should "leave it alone." Ultimately, an investigation did occur, although plaintiff was not involved other than in making a statement to an investigator, and at some point after plaintiff's termination a few participants were disciplined.
In January 2002, plaintiff was again confronted with the harassment certification requirement, this time as she was undergoing her own performance evaluation, she again informed the Lane County Human Resources office that the form was intimidating.
In March 2002, two employees each reported the other of sexual harassment. To stop the problem, one of the employees was to be reassigned so that they would no longer be working the same shifts. Clague became upset with plaintiff when, after he told the employees' supervisor to reassign the female employee, plaintiff subsequently told the supervisor to reassign the male employee. Plaintiff indicated that she thought the male employee should be moved because the female employee had complained first.
Around that same time, plaintiff intervened on behalf of a female employee who plaintiff believed had a contractual right to remain on a day shift, but whom management was planning on moving to a night shift. She opposed the move on grounds that it was discriminatory. The female employee was nevertheless moved to the night shift.
There is different evidence from plaintiff about the timing of this event; for purposes of summary judgment, the court will consider the most proximate date to her termination as the one a factfinder would accept.
In April 2002, plaintiff was informed by a secretary in the Sheriff's Office that women in the office should be seen and not heard.
As previously mentioned, plaintiff underwent a performance evaluation in January 2002. On the evaluation — which was prepared by Clague — plaintiff was given a score of 1.907 out of 4.0, which is just past the threshold for "successful" — a range encompassing 1.90 to 2.99. Clague gave plaintiff a number of items that plaintiff needed to improve on, most of which involved working on relationships with others in the Sheriff's Office and in the Lane County Human Resources office. According to plaintiff, Clague indicated that if she demonstrated improvement in those areas, she would clear probation.
The following month, Clague transferred to a different area and supervision of plaintiff's employment defaulted to the Sheriff. A short while later, the Sheriff arranged for an audit of the office's personnel section, where plaintiff worked. As part of the audit, the auditor interviewed various employees, asking,inter alia, about plaintiff. Several employees expressed distrust, dissatisfaction, or other negative feelings about plaintiff. After receiving the auditor's report, the Sheriff terminated plaintiff's employment. She was advised that she could remain on doing clerical work until her probationary year had completed while she looked for other employment.
Plaintiff subsequently filed complaints with the EEOC and the state Bureau of Labor and Industries, alleging that she was fired in retaliation for opposing sexual discrimination and harassment. Both provided her with right-to-sue letters, and she filed the instant action against Lane County, alleging a claim under Oregon Revised Statute 659A.885, an Oregon common law wrongful termination claim, and a claim alleging a violation of 42 U.S.C. § 2000e-3(a). Defendant has moved for summary judgment in its favor on all three claims.
STANDARD OF REVIEW
A party is entitled to summary judgment as a matter of law if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c);Bahn v. NME Hosp's, Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). The moving party must carry the initial burden of proof. This burden is met through identifying those portions of the record which demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Id. The facts on which the opponent relies must be admissible at trial, although they need not be presented in admissible form for the purposes of opposing the summary judgment motion. Id.
The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion.Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. Of North America, 638 F.2d 136, 140 (9th Cir. 1981).
Deference to the non-moving party does have some limit. The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). Where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 587 (1986). The "mere existence of a scintilla of evidence in support of the plaintiff's position would be insufficient."Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 248. However, trial courts should act with caution in granting summary judgment, and may deny summary judgment "in a case where there is reason to believe that the better course would be to proceed to a full trial." Anderson, 477 U.S. at 255.
DISCUSSION
I. Plaintiff's Title VII claim
As it is plaintiff's Title VII claim that confers jurisdiction on this court, it will be considered at the outset.
Title VII forbids actions taken on the basis of sex that "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1). In order to prevail on a Title VII claim, the plaintiff must establish a prima facie case of discrimination. If the plaintiff succeeds in doing so, then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory conduct. If the defendant provides such a reason, the burden shifts back to the plaintiff to show that the employer's reason is a pretext for discrimination. Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2004).
Because the discrimination alleged by plaintiff involves retaliation, the elements of the case she must prove are that she was engaged in a protected activity, that she was thereafter subject to an adverse employment action, and that there was a causal nexus between the two. Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1354 (9th Cir. 1984). As her employment was terminated, it is not seriously disputed that plaintiff suffered an adverse employment action. Similarly, to the extent that she opposed practices that were discriminatory, or that she reasonably believed were discriminatory, it is not seriously disputed that plaintiff's conduct was protected. Defendant argues instead that plaintiff has failed to make her prima facie case because there is no credible evidence of a causal nexus; i.e., that plaintiff she was terminated because of her protected conduct.
See Clark County School District v. Breeden, 532 U.S. 268, 270 (2001) (noting that the Ninth Circuit protects an employee's reasonable belief that opposed practices were unlawful).
Most of plaintiff's allegations that would constitute protected conduct are disputed to some extent, with defendant's primary argument being that there is no evidence that the Sheriff — who ultimately took the adverse employment action — knew that the alleged conduct occurred, and thus could not have retaliated on the basis of it. However, it is conceded that at least two events alleged by plaintiff were known to the Sheriff: her reporting in July 2001 that a female employee had felt sexual discrimination had resulted in her failure to obtain a promotion, and her late 2001 criticism of the physical fitness test that selected out more women than men. On many of plaintiff's other claims — particularly the reporting of activities at the Christmas party, which plaintiff alleges she was very vocal regarding, and the March 2002 criticism of a decision to transfer a female employee out of a scheduled shift rather than an equally-culpable male employee, which occurred when the Sheriff was her supervisor — there is enough of a question as to whether the Sheriff knew of the conduct to make it an issue for the factfinder. However, defendant argues that even to the extent that the Sheriff had knowledge of such conduct, there is no evidence that it played a role in his decision to terminate plaintiff's employment.
As might be expected, plaintiff has not produced any direct evidence that the Sheriff terminated plaintiff's employment because of her protected conduct; one would rarely expect to find a memo documenting such, or an affidavit stating it. Rather, as is frequently the case, plaintiff points to temporal proximity between the conduct and the termination to raise an inference of retaliation. Plaintiff was terminated in April 2002, which, working backwards, was approximately one month after plaintiff raised the issue of discrimination related to a female employee being moved to a night shift, one month after plaintiff raised the issue of discrimination related to a female employee being transferred rather than an equally-culpable male, three months after she raised, for the second time, the issue of the intimidating nature of the sexual harassment form on employees' evaluations, four months after she commented on the harassing nature of some behavior at the Christmas party, approximately five months after she noted the potentially discriminatory nature of the physical fitness test, and nine months after she reported to the Sheriff that a female employee had claimed harassment and felt that the county had swept it under the rug.
Defendant argues that such temporal proximity is insufficient to infer causation. Citing to Clark County School Dist. v. Breeden, 532 U.S. 268 (2001), and Manatt v. Bank of America, N.A., 339 F.3d 792, 802 (9th Cir. 2003), defendant notes that the Supreme Court has stated that the temporal proximity must be "very close" and has found lapses of three to four months to be insufficient, by themselves, to infer causation, and that panels within this Circuit have not allowed the inference to be drawn when the time elapsed between the conduct and the adverse employment action is too great.
Defendant acknowledges, however, that other panels of the Ninth Circuit have allowed plaintiffs to survive summary judgment on inferences of causation on more lengthy lapses of time, most notably the panel in Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003). In Coszalter, the court noted that:
Depending on the circumstances, three to eight months is easily within a time range that can support an inference of retaliation. As we recently held in another § 1983 First Amendment employer retaliation case, "[A]n eleven-month gap in time is within the range that has been found to support an inference that an employment decision was retaliatory." Allen v. Iranon, 283 F.3d 1070, 1078 (9th Cir. 2002). . . .
Retaliation often follows quickly upon the act that offended the retaliator, but this is not always so. For a variety of reasons, some retaliators prefer to take their time: They may wait until the victim is especially vulnerable or until an especially hurtful action becomes possible. Or they may wait until they think the lapse of time disguises their true motivation. We should be particularly sensitive to this last point, for if we establish a per se rule that a specified time period is too long to support an inference of retaliation, well-advised retaliators will simply wait until that period has passed. Then — provided that the retaliator has not revealed to others his intention, and has not provided demonstrably false or pretextual reasons for his act — he may retaliate with impunity. We therefore reject any bright-line rule about the timing of retaliation. There is no set time beyond which acts cannot support an inference of retaliation, and there is no set time within which acts necessarily support an inference of retaliation. Whether an adverse employment action is intended to be retaliatory is a question of fact that must be decided in the light of the timing and the surrounding circumstances. In some cases, the totality of the facts may form such a clear picture that a district court would be justified in granting summary judgment, either for or against a plaintiff, on the issue of retaliatory motive; but the length of time, considered without regard to its factual setting, is not enough by itself to justify a grant of summary judgment.Id. at 977-78. Although defendant argues that Coszalter may not survive as the rule in the Ninth Circuit, it is telling that less than two months ago, the court, citing Coszalter, held that:
[L]ess than three months elapsed between the time when Obrist filed his affidavit and agreed to serve as a witness in Stephens's lawsuit and the time when the defendants began drafting the new anti-Obrist contracts. This period is within the three-to-eight-month time range that "easily" supports an inference of retaliation. Coszalter, 320 F.3d at 977. Nor is the approximately nine-month period between Obrist's testimony at the grievance hearing and the time planing commenced for the new contracts necessarily outside the acceptable range of proximity. We have declined to hold that any period is per se too long because there are a variety of reasons why retaliators choose to wait before acting. Id. at 977-78.Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 929 (9th Cir. 2004). Clearly, if the Ninth Circuit is going to abandonCoszalter, it has not yet done so.
I find that Coszalter is controlling here, and that — given the summary judgment standards requiring the court to allow plaintiff the benefit of all reasonable inferences — the temporal proximity between plaintiff's conduct and her termination is sufficient to establish plaintiff's prima facie case on the question of causation.
As plaintiff has made her prima facie case on each of the elements of her claim, the burden shifts to defendant to demonstrate that it had a legitimate, non-discriminatory reason for terminating plaintiff's employment. Defendant has done this by pointing to the marginal evaluation plaintiff received and the auditor's investigation finding dissatisfaction with plaintiff's performance.
These documents, however, cut both ways. While the evaluation can be viewed as providing a legitimate reason for not keeping plaintiff employed in her capacity as a personnel specialist due to the interpersonal difficulties experienced in the office during her tenure, a reasonable factfinder could find that those interpersonal difficulties were a direct result of the protected conduct she was engaged in, and that the Sheriff exploited those difficulties when he initiated the audit knowing that it would emphasize her purported shortcomings. It would not be unreasonable, therefore, for the factfinder to conclude that the audit was merely a pretext to terminate plaintiff's employment even though she had received a satisfactory evaluation. I find that the evaluation and the audit can be viewed both as providing a non-discriminatory reason for discharging plaintiff and as a pretext for discharging her, and that questions of fact exist which must be resolved by a jury. As such summary judgment on plaintiff's Title VII claim cannot be granted to defendant.
II. Plaintiff's claim under ORS 659A.885
When analyzing claims of discrimination that are based on state statute, Oregon courts look to federal Title VII cases. A.L.P. Inc. v. BOLI, 161 Or.App. 417, 984 P.2d 883 (1999). As plaintiff's Title VII claim must be considered by a jury, so must plaintiff's state statutory claim. Defendant's motion for summary judgment on that claim is denied.
III. Plaintiff's common law wrongful termination claim
In general, an employer may discharge an employee at any time, for any reason, unless doing so violates a contractual, statutory, or constitutional requirement. Banaitis v. Mitsubishi Bank, 129 Or.App. 371, 376, 879 P.2d 1288 (1994). But even within that discretion lies an exception "when the discharge is for exercising a job-related right that reflects an important public policy." Babick v. Oregon Arena Corp., 333 Or. 401, 407, 40 P.3d 1059 (2002).
The court need not look far to find the important public policies implicated here: they are encapsulated in Title VII and ORS 659A, those statutes which also provide the independent causes of action constituting plaintiff's previously discussed claims. As described above, there are questions of fact surrounding whether plaintiff's discharge was in retaliation for her exercising rights reflecting those policies. As such, defendant's motion for summary judgment on plaintiff's wrongful termination claim is denied.
CONCLUSION
For the above stated reasons, defendant's motion (#19) for summary judgment is denied.