Opinion
2:20-cv-00913-HL
05-05-2022
AMELIA WITHROW, an individual, Plaintiff, v. LAMB WESTON, INC., a foreign business corporation; ELOY GERRARDO, an individual; MICHAEL COOPER, an individual, Defendants.
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff Amelia Withrow asserts this sex discrimination and unlawful employment practices action against her former employer, Defendant Lamb Weston, Inc. (“Lamb Weston”), and two of its employees. This matter now comes before the Court on Defendants' Motion for Summary Judgment. The Court heard oral argument on February 25, 2022. ECF 44. For the reasons discussed below, Defendants' Motion for Summary Judgment should be granted in part and denied in part.
FACTUAL BACKGROUND
The following facts, and all reasonable inferences, are recited in the light most favorable to the nonmoving party, Plaintiff. Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108, 1112 (9th Cir. 2011).
In May 2015, Plaintiff began working for a processing plant company that was later acquired by Defendant Lamb Weston. Declaration of Michael Cooper (“Cooper Decl.”) ¶ 3, ECF 26. In November 2016, Plaintiff was promoted to receiving lead. Id. ¶ 4. As receiving lead, Plaintiff monitored and operated large industrial processing equipment and supervised personnel, which included Defendant Eloy Gerardo (“Gerardo”). Declaration of Rebecca Cambreleng (“Cambreleng Decl.”) Ex. A at 15-16, ECF 39. Defendant Gerardo was already working in the receiving area as a receiving operator when Plaintiff was promoted to receiving lead. Declaration of Bruno J. Jagelski (“Jagelski Decl.”) Ex. 1, ECF 23.
From day one of Plaintiff becoming a receiving lead, Defendant Gerardo and Plaintiff had conflict with each other. Jagelski Decl. Ex. 2, Amelia Withrow Deposition (“Withrow Depo.”) 18:15-16, ECF 23. While Plaintiff was Defendant Gerardo's supervisor, Defendant Gerardo often failed to follow Plaintiff's instructions and would refuse to work. Cambreleng Decl. Ex. A, 4-5 at 73:20-22; Withrow Depo. 123:19-21, 124:2-11; Declaration of Amelia Withrow (“Withrow Decl.”) ¶ 2, ECF 40. Defendant Gerardo's failure to listen to Plaintiff's instructions often resulted in an unsafe working environment for Plaintiff. Withrow Decl. ¶ 9. Initially, Plaintiff attempted to deal with Defendant Gerardo's insubordination herself. Id. ¶ 4.
When Defendant Gerardo's behavior did not improve, however, Plaintiff sought assistance from her supervisors. Id. ¶ 5. In a staff meeting with supervisors in December 2017, Defendant Gerardo stated to the group that he would not follow Plaintiff's directions. Id. ¶¶ 6-7. Plaintiff believed that Defendant Gerardo refused to listen to Plaintiff because Defendant Gerardo did not want to be supervised by a woman. Id. ¶ 3. In any event, following that meeting, Plaintiff's supervisors did not discipline Defendant Gerardo or create a plan of action to resolve the conflict between Plaintiff and Defendant Gerardo. Id. ¶ 7.
Additionally, according to Plaintiff, she experienced inappropriate attempted sexual contact from Defendant Gerardo. Id. ¶ 9; Jagleski Decl. Ex. 2 at 28:13-24. On two occasions, Defendant Gerardo allegedly attempted to kiss Plaintiff. Withrow Decl. ¶ 9. Other times, Gerardo apparently touched, or attempted to touch, Plaintiff. Id. ¶ 10. Plaintiff objected to Defendant Gerardo's unwanted advances on all occasions. Id. Plaintiff did not report any of Defendant Gerardo's inappropriate sexual contact while she was employed. Withrow Depo. 28:25-29:1-8.
In 2018, Plaintiff submitted a total of eight grievances to Lamb Weston's human resources (“HR”) department for assistance, which, according to Plaintiff, all went unanswered or uninvestigated. Withrow Decl. ¶¶ 14, 16, 19, 20. Defendant Michael Cooper, the HR manager, did not provide any written responses to Plaintiff's seven grievances between February 2018 and September 2018. Cambreleng Decl. Ex. B, 8 at 71:14-72:9.
Plaintiff filed her first grievance in February 2018, which detailed her frustrations with Defendant Gerardo's refusal to work or follow Plaintiff's instructions and the lack of response or assistance from any of her supervisors. Cambreleng Decl. Ex. B at 15-17. Defendant Cooper claims that he attempted to meet with Plaintiff to discuss the grievance, but Plaintiff apparently refused to meet with him. Declaration of Michael Cooper (“Cooper Decl.”) ¶ 12, ECF 26. Defendant Cooper did not make any written findings about this exchange, however, and Plaintiff states that she never received a response from the HR department regarding her February grievance. Withrow Decl. ¶¶ 14-15.
In July 2018, Plaintiff's supervisors changed, and she became supervised by Christopher Rowe. Id. ¶ 14. Plaintiff sought help from Mr. Rowe about Defendant Gerardo's insubordination, but Mr. Rowe did not assist Plaintiff. Id. Ultimately, Plaintiff turned to HR again and filed three more grievances in August 2018 about Defendant Gerardo's behavior and the lack of assistance from supervisors. Id. ¶ 16; Cambreleng Decl. Ex. B at 18-24.
In her August 11 grievance, she explained that Defendant Gerardo “has been disrespectful from day [one] and does as he pleases” and that Plaintiff “cannot get any [supervisors] to do anything about it because it's turned around on [her].” Cambreleng Decl. Ex. B at 18. According to Plaintiff, Defendant Cooper did not approach or attempt to speak with Plaintiff after she filed her August grievances. Withrow Decl. ¶ 16.
Plaintiff filed three more grievances in September 2018; two against Defendant Gerardo and one against Defendant Cooper. Cambreleng Decl. Ex. B at 25-28. In her grievance against Defendant Cooper, Plaintiff reported that she had never been contacted by HR about any of her earlier grievances, and she wanted her concerns “[t]o be taken seriously” and appropriately investigated. Id. at 25. In her September 9 grievance, Plaintiff reported that Defendant Gerardo refused to answer a question that Plaintiff asked and that Defendant Gerardo had “been allowed to question any type of authority that [Plaintiff has] as a lead.” Id. at 26.
Defendant Cooper attempted to speak with Plaintiff about the September grievances; however, when Defendant Cooper went to Plaintiff, she was ending a particularly emotional shift and was crying. Withrow Decl. ¶ 19. Plaintiff asked to speak with Defendant Cooper at another time, but Defendant Cooper never reached out to Plaintiff again. Id.
After Plaintiff filed her first seven grievances, Defendant Lamb Weston reprimanded Plaintiff. On September 13, Plaintiff was issued a written warning for using a “very negative and unprofessional tone on the radio” to her receiving operators. Cambreleng Decl. Ex. A at 11. As a result, Plaintiff attended a coaching session on September 18 to refine her “personal interactions as well as radio etiquette.” Id. at Ex B, 5 at 53:5-10.
On October 8, 2018, Plaintiff's conflict with Gerardo came to a tipping point. That morning, Plaintiff was working with Defendant Gerardo when she noticed that the potato line was plugged, so she shut off the flume, which is a device that delivers potatoes. Cambreleng Decl. Ex. F at 1. While Plaintiff was inspecting the line, someone turned the flume back on, which could have been a potentially dangerous situation for Plaintiff. Cambreleng Decl. Ex. A, 2 at 66:11-22. When Plaintiff went to see who turned on the flume, she encountered Defendant Gerardo and another employee, Osvaldo Gutierrez. Id. Plaintiff confronted Defendant Gerardo for turning the flume back on. Id. at 2-3, 66:23-67:3. According to Plaintiff, Defendant Gerardo quickly walked at Plaintif while telling her to “calm down” and “shut up” as Plaintiff attempted to walk away. Id. at 3 at 67:3-15.
It is disputed exactly what happened next, but it is undisputed that Plaintiff's hand made contact with Defendant Gerardo's chest. Withrow Depo. 67:16-17. According to Plaintiff, when she turned around to confront Defendant Gerardo, he “walked right in [her] hand.” Withrow Depo. 12:4-6. Plaintiff denies that she hit Gerardo, and she claims that she feared for her safety and felt threatened by Defendant Gerardo's behavior, so she put her hands up to stop him from getting any closer to her. Withrow Decl. ¶ 22.
Following this incident, Plaintiff filed her final grievance against Defendant Gerardo on October 8. Cambreleng Decl. Ex. B at 29. In that grievance, Plaintiff stated that she saw Defendant Gerardo turn the flume back on, that he “came at” Plaintiff, and he pretended that she hit him. Id. She further reported that she felt discriminated against by Defendant Gerardo, that he refuses to listen to her because she is a white woman, and he purposefully tries to sabotage Plaintiff. Id.
Subsequently, Defendant Cooper investigated the incident between Plaintiff and Defendant Gerardo. Cambreleng Decl., Ex. B at 49. Defendant Cooper interviewed Plaintiff, Defendant Gerardo, and Mr. Gutierrez, who witnessed the incident. Id. In his investigation, Defendant Cooper learned that Mr. Gutierrez had turned on the flume, and he saw Plaintiff confront Defendant Gerardo and hit him in the chest. Id. at 50. Lamb Weston has a written policy against violence in the workplace in its Employee Handbook Rules of Conduct, which explains that “any form of physical contact that may result in harm to another person” is a most serious violation that could result in immediate discharge without warning. Cooper Decl. Ex. 16 at 2-3. Based on his investigation, Defendant Cooper believed that Plaintiff hit Defendant Gerardo and recommended that Plaintiff's employment be terminated. Cambreleng Decl., Ex. B at 49. On October 16, 2018, Defendant Cooper terminated Plaintiff for workplace violence. Cambreleng Decl., Ex. A at 13; Cooper Decl. ¶ 41.
PROCEDURAL BACKGROUND
Plaintiff initiated this action on June 5, 2020. Compl. 14, ECF 1. Plaintiff asserts seven claims for relief: (1) sex discrimination and harassment pursuant to 42 U.S.C. § 2000e-2(a) against Lamb Weston, Compl. ¶¶ 44-47; (2) sex discrimination pursuant to Or. Rev. Stat. § (“ORS”) 659A.030(1)(a) against Lamb Weston, Compl. ¶¶ 48-51; (3) hostile work environment under ORS 659A.030 against all Defendants, Compl. ¶¶ 52-60; (4) retaliation pursuant to 42 U.S.C. § 2000e-(3)(a) against Lamb Weston, Compl. ¶¶ 61-64; (5) retaliation pursuant to ORS 659A.030(1)(f), (g) against all Defendants, Compl. ¶¶ 65-67; (6) defamation against Defendant Gerrardo, Compl. ¶¶ 68-74; and (7) intentional infliction of emotional distress against Defendant Gerrardo, Id. ¶¶ 75-78. Subsequently, Defendants filed a Motion for Summary Judgment. Defs.' Mot. Summ. J., ECF 21; Memorandum Points & Authorities in Support Defs.' Mot. Summ. J., (“Defs.' Memo in Support”), ECF 22.
LEGAL STANDARD
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts that show a genuine issue for trial. Id. at 324. Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630-31.
The Ninth Circuit has cautioned against too readily granting summary judgment in employee 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 Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81-82 (1998) (“The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, exceptions, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.”).
Thus, the Ninth Circuit has set “a high standard for granting summary judgment in employment discrimination cases.” Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). Courts 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 more appropriately conducted by the factfinder upon a full record.” Id. (internal quotations and citation omitted). Additionally, “any indication of discriminatory motive . . . may suffice to raise a question that can only be resolved by a factfinder,” and thus “summary judgment for the defendant will ordinarily not be appropriate on any ground relating to the merits.” Id. (quoting Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995)).
DISCUSSION
Defendants seek an order granting summary judgment in their favor on eight separate grounds. First, Defendants broadly assert that they are entitled to judgment as a matter of law as to all Plaintiff's claims because it is undisputed that Plaintiff was terminated for violating Lamb Weston's Code of Conduct. Defs.' Mot. Summ. J. 2. On the remaining seven grounds, Defendants seek partial summary judgment on each of Plaintiff s individual claims for relief. Id. at 2-4.
In response, Plaintiff contends that Defendants are not entitled to summary judgment on her first through fifth claims for relief, because Plaintiff has either established prima facie claims or that genuine issues of material fact exist for a fact finder to resolve. Pl.'s Opp'n Defs.' Mot. Summ. J. (“Pl.'s Opp'n”) 15-39, ECF 38. Additionally, Plaintiff withdraws her sixth and seventh claims for relief against Defendant Gerardo for defamation and intentional infliction of emotional distress. Id. at 39.
As is further discussed below, Defendants' Motion for Summary Judgment should be denied in part and granted in part:
● Defendants' first motion on all Plaintiffs' claims should be denied because Defendants have failed to demonstrate that they are entitled to judgment as a matter of law;
● Defendants' second and third motions on Plaintiffs sex discrimination and sex harassment claims should be granted because Plaintiff has not set forth a prima facie case for either claim;
● Defendant Gerardo's fourth motion on Plaintiff s hostile work environment claim should be denied because there is a genuine dispute whether Plaintiff had an objectively reasonable belief that Defendant Gerardo created an abusive work environment. However, Defendant Lamb Weston's and Defendant Cooper's fourth motion on Plaintiffs hostile work environment claims should be granted because Plaintiff has failed to demonstrate that they could have known of a hostile work environment;
● Defendant Lamb Weston's fifth motion as to Plaintiffs federal retaliation claim should be denied because Plaintiff has set forth a prima facie case for retaliation and a
reasonable jury could conclude that there was pretext for Plaintiff s termination. However, Defendant Cooper's sixth motion on Plaintiffs state retaliation claim should be granted because Defendant Cooper cannot be held liable for aiding and abetting in retaliation as the primary actor in Plaintiffs termination;
● Finally, Defendants' seventh and eighth motions should be granted as unopposed based on Plaintiffs concession.
I. Objection to Miracle Declaration
As a preliminary matter, Defendants raise an evidentiary objection to the declaration of Eileen Miracle. Declaration of Eileen Miracle, ECF 37; see Defs.' Reply Supp. Mot. Summ. J. (“Defs.' Reply”) 10-11, ECF 41. Ms. Miracle was not disclosed as a witness during the course of discovery in this case.
Rule 26 of the Federal Rules of Civil Procedure requires parties to disclose “the name and, if known, the address and telephone number of each individual likely to have discoverable information.” Fed.R.Civ.P. 26(a)(1)(A)(i). “[I]f the party learns that in some material respect the disclosure or response is incomplete or incorrect” it must supplement or correct its initial disclosures. Fed.R.Civ.P. 26(e). A failure to disclose information or identify a witness as required by Rules 26(a) and (e) means that party may not use that information or witness as evidence on a motion. Fed.R.Civ.P. 37(c).
Plaintiff did not disclose Ms. Miracle as a witness at any point before Plaintiff submitted Ms. Miracle's declaration in support of Plaintiff s opposition to Defendants' Motion for Summary Judgment. Accordingly, Plaintiff has failed to disclose Ms. Miracle in a timely manner and cannot now rely on her declaration in support of Plaintiff s opposition to Defendants' motion. See, e.g., Lyons v. Peters, No. 3:17-CV-00730-SI, 2019 WL 3291529, at *3 (D. Or. July 22, 2019). Thus, Ms. Miracle's declaration should be excluded.
II. Motion 1 - Summary Judgment on All Claims
Defendants first seek a grant of summary judgment in their favor on all Plaintiff's claims on the basis that there is no dispute that Plaintiff was terminated after her hand touched Gerardo's chest. Defs.' Mot. Summ. J. 2; Defs.' Memo in Support 10-11. Additionally, Defendants assert that Plaintiff has “not articulated any causal connection between her gender [or] sex and the conduct she perceived as unlawful,” so she “has not put forth sufficient facts that would allow a reasonable jury to find in her favor.” Id. at 11.
Defendants' first motion does not provide an adequate basis for judgment as a matter of law. Defendants broadly contend that all Plaintiff's claims are implausible but do not provide any substantive argument to support that claim, nor do Defendants identify Plaintiff's claims with particularity. Although Defendant Lamb Weston contends that it was justified in terminating Plaintiff for touching Defendant Gerardo, Plaintiff does not assert any independent claim for wrongful termination. Moreover, as demonstrated by the analysis set forth below, each of Plaintiff's claims must be analyzed separately, and the disposition of each specific claim does not necessarily turn on whether Plaintiff's termination was unjustified or based on unlawful gender discrimination. As such, Defendant's first motion for summary judgment should be denied.
III. Motions 2 and 3 - Sex Discrimination and Harassment Claims
In Plaintiff's first and second claims for relief, she asserts sex discrimination and harassment claims against Defendant Lamb Weston under both state and federal law. Pursuant to 42 U.S.C. § 2000e-2(a) (“Title VII”), it is unlawful for an employer to “discharge any individual, or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex.” Under ORS 659A.030(1)(b), it is an unlawful employment practice for an employer, based on an individual's sex, to “discriminate against the individual in compensation or in terms, conditions, or privileges of employment.”
“The standard for establishing a prima facie case of discrimination under Oregon law is identical to that used under federal law.” Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001); see also Miller v. State by and through Oregon Racing Commission, 298 Or.App. 70, 90 (2019); Dawson v. Entek Intern., 630 F.3d 928, 937 (9th Cir. 2011) (“Snead . . . dictates that the burden-shifting framework applies to all . . . federal and [Oregon] state discrimination claims.”). To establish a prima facie case for sex discrimination, a plaintiff is required to demonstrate that (1) she belongs to a protected class, (2) she was performing according to her employer's legitimate expectations, (3) she suffered an adverse employment action, and (4) similarly situated male employees were treated more favorably or that “other circumstances surrounding the adverse employment action permit an interference that discrimination occurred.” Reynaga v. Roseburg Forest Prod., 847 F.3d 678, 690 (9th Cir. 2017) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The requisite degree of proof to establish a prima facie case for a sex discrimination claim 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); see Meyer v. California & Hawaiian Sugar Co., 662 F.2d 637, 639 (9th Cir. 1981) (“The burden of establishing a prima facie case is not onerous, and the elements essential to it should not be reduced to rigidly applied formulae.”) (internal citation omitted).
Under federal law, if a plaintiff can demonstrate a prima facie case, then the burden shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for the adverse employment action. McDonnell, 411 U.S. at 801. If the employer articulates a legitimate, nondiscriminatory reason, then the burden shifts back to the plaintiff to “show that the employer's reason was a pretext for discrimination.” Texas Dept. Comm. Affairs v. Burdine, 450 U.S. 248, 252 (1981). Pretext may be established in one of two ways: “(1) indirectly by showing that [the] defendant'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 defendant.” White v. TA Operating Corp., No. 06-1747-AA, 2008 WL 2557983, *3-4 (D. Or. June 19, 2008) (citing Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998)).
In this case, it is undisputed that Plaintiff meets both the first and third prongs of her prima facie case under the McDonnell Douglas test. It is undisputed that Plaintiff is a member of a protected class based on her gender. It is also undisputed that her termination was an adverse employment action.
Plaintiff also argues that the written and verbal warnings that she received constitute adverse employment actions. Pl.'s Opp'n 22. The Court is unpersuaded: Written and verbal warnings on their own-absent any consequence that materially affects the terms and conditions of employment-do not constitute adverse employment actions. See, e.g., Magee v. Trader Joe's Co., No. 3:18-CV-01956-AC, 2020 WL 9550008, at *12 (D. Or. Sept. 1, 2020), report and recommendation adopted in part, No. 3:18-CV-01956-AC, 2021 WL 1550336 (D. Or. Apr. 20, 2021) (concluding that a written warning that did not result in demotion or further punishment was “not a materially adverse employment action”); Wilkins v. Brandman Univ., Case No. 3:17-cv-01099-BR, 2019 WL 3558172, at * 13 (D. Or. Aug. 5, 2019), appeal dismissed 2020 WL 773489 (9th Cir. Feb. 4, 2020) (finding disciplinary counseling memoranda were not adverse employment actions in race discrimination case because they did not result in demotions, decrease in privileges, or ineligibility for promotions). Thus, the Court finds Plaintiff's termination as the sole adverse employment action in this case.
Plaintiff also offers that she can satisfy both the second and fourth elements of the test. Defendant Lamb Weston contends, however, that (a) Plaintiff was not performing her job according to Lamb Weston's legitimate expectations, and (b) Plaintiff cannot prove that there were similarly situated male employees who were treated more favorably than Plaintiff or that other circumstances existed surrounding her termination that demonstrated discrimination. Defs.' Memo in Supp. 12-13. Defendant Lamb Weston also argues that it had a legitimate, non-discriminatory reason for terminating Plaintiff that was not pretextual.
A. Plaintiff has not demonstrated that she satisfactorily performed her job.
To establish her prima facie face, Plaintiff must produce evidence that she was performing according to Defendant Lamb Weston's legitimate expectations. To prove that she was meeting an employer's legitimate expectations, an employee can offer evidence such as “‘positive performance reviews, admissions by the employer, or even expert testimony as to an employer's legitimate expectations for the job at issue.'” Whitley v. City of Portland, 654 F.Supp.2d 1194, 1208 (D. Or. 2009) (quoting Abram v. San Francisco, No. C07-3006PJH, 2008 WL 4462104, at *3 (N.D. Cal. Oct. 3, 2008)).
The determination whether a plaintiff has adequately performed her job “suggests a standard less than perfect performance.” Moorehead v. Chertoff, No. C-07-1205-MJP, 2008 WL4810308, at *2 (W.D. Wash. Nov. 3, 2008) (citing Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1031 (9th Cir. 2006)). The “proposition that an employer has a ‘legitimate' expectation that an employee will never violate a job requirement” is “not a persuasive argument.” Moorehead, 2008 WL4810308, at *2. Further, the Ninth Circuit has held that, “at summary judgment, a plaintiff's ‘self-assessment of [her] performance is relevant' in satisfying [her] minimal burden in showing qualification at the initial, prima facie case, stage of the McDonnell Douglas burden-shifting rationale.” Lyons v. England, 307 F.3d 1092, 1115 (9th Cir. 2002) (quoting Aragon v. Repub. Silver State Disposal, 292 F.3d 654, 660 (9th Cir. 2002)).
Defendant Lamb Weston argues that Plaintiff did not perform to Lamb Weston's legitimate expectations given Plaintiff's unprofessional behavior toward other employees and the verbal and written warnings that Plaintiff received during her employment. Defs.' Memo in Support 12 (citing Cooper Decl. Exs. 6, 9; Rowe Decl. Ex. 1). Lamb Weston points to the fact that Plaintiff was repeatedly counseled about her unprofessional demeanor and inability to get along with fellow employees. Defs.' Memo in Support (citing Withrow Depo. 53:25, 54:1-22); Brizendine Decl. ¶¶ 4, 7, ECF 27. Plaintiff was also written up and counseled about causing back-ups and delays in the supply chain, including one write-up for plugging the line a year before her termination. Cambreleng Decl., Ex. A. p. 13; Cooper Decl. ¶ 42; Rowe Decl. ¶ 9; Brizendine Decl. ¶¶ 5-8, Ex. 1; Withrow Depo. 57:4-5, 17-18.
Plaintiff counters with two main arguments: (1) her unprofessionalism, and discipline resulting from her unprofessional conduct, was only aimed at Defendant Gerardo as a result of his insubordination; and (2) Plaintiff's conduct on October 8 was self-defense, so she should not be penalized for that conduct because it would run contrary to Title VII. Pl.'s Opp'n 19-22.
In support of her first argument, Plaintiff attempts to rely solely on the excluded declaration from Eileen Miracle as evidence that Plaintiff only acted unprofessionally toward Defendant Gerardo. Although Plaintiff correctly notes that flawless performance is not the requisite standard for establishing a prima facie case for sex discrimination, Pl.'s Opp'n 20 (citing Whitley, 654 F.Supp.2d at 1208), Plaintiff has failed to present any evidence-either based on Plaintiff's own subjective beliefs or objective evidence-demonstrating that she performed her job to Defendant Lamb Weston's legitimate expectations.
To the contrary, Plaintiff does not dispute that she was disciplined on several occasions for unsatisfactory work performance and unprofessionalism: In September 2017, she received a verbal warning for poor work performance following a plug in the line, Cambreleng Decl. Ex. A at 12; in September 2018, she received a written warning, following several informal warnings, for using a negative and unprofessional tone on the radio, Cambreleng Decl. Ex. A at 11. See Pl.'s Opp'n 20-21. Although Plaintiff contends that she did not receive any discipline for her unprofessionalism until after she had filed eight grievances with HR, Plaintiff fails to cite any authority for her underlying proposition that the temporal proximity between her grievances and discipline demonstrate that she worked according to Lamb Weston's expectations. While temporal proximity may be sufficient to demonstrate an element of retaliation, it is not adequate-on its own-to show that Plaintiff performed her job adequately.
In support of her second argument, Plaintiff argues that her conduct on October 8 should not be considered in determining whether Plaintiff performed her job to Lamb Weston's expectations because she was defending herself from Defendant Gerardo's physical threat. The Court finds, however, that notwithstanding Plaintiff's conduct on October 8, Plaintiff has failed to provide sufficient evidence that she was adequately performing her job. In Plaintiff's Opposition to Defendants' Motion, Plaintiff only cites to the excluded Miracle Declaration as evidence in support of her contention that Plaintiff was adequately performing her job. See Pl.'s Opp', 19-22. Even though Plaintiff attributes most of her unprofessional conduct, including her conduct on October 8, to Defendant Gerardo's constant insubordination, Plaintiff does not dispute that she engaged in consistent unprofessional conduct even after discussions with Lamb Weston supervisors. Plaintiff has not presented any evidence-letters, personal statements, performance reviews-to the contrary.
For these reasons, this Court finds that Lamb Weston has demonstrated that there is no genuine issue of material fact that Plaintiff did not perform according to Lamb Weston's legitimate expectations. Therefore, Plaintiff cannot make a prima facie case and summary judgment should be granted to Lamb Weston on Plaintiffs sex discrimination claim.
B. Similarly Situated Male Employees or Other Circumstances Permitting an Inference that Discrimination Occurred
Plaintiff has also not satisfied the fourth element of the McDonnell Douglas test. To meet the fourth element, a Plaintiff must demonstrate that either (1) similarly situated male employees were treated more favorably, or (2) other circumstances surrounding the adverse employment action permit an inference of discrimination.
i. Similarly Situated Male Employees Treated More Favorably
Plaintiff must establish that “others not in [her] protected class were treated more favorably.” Aragon v. Republic Silver St. Disposal, Inc., 292 F.3d 654, 660 (9th Cir. 2002). This element contains two requirements: First, Plaintiff must demonstrate that she is “similarly situated to those employees in all material respects.” Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). “Individuals are similarly situated when they have similar jobs and display similar conduct.” Vasquez v. County of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (“Employees in supervisory positions are generally deemed not to be similarly situated to lower level employees.”). Similar conduct means “problematic conduct of comparable seriousness.” Id. Second, Plaintiff must show that similarly situated male employees were treated more favorably. Aragon, 292 F.3d at 660.
In this case, Plaintiff has not demonstrated that similarly situated male employees were not disciplined for similar conduct that Plaintiff committed. Plaintiff was terminated for workplace violence after Defendant Cooper determined that Plaintiff hit Defendant Gerardo. Cambreleng Decl., Ex. A at 13; Ex. B at 49.
Plaintiff only points to one male employee who she contends was similarly situated and treated more favorably than Plaintiff: Defendant Gerardo. Plaintiff argues that Defendant Gerardo was treated more favorably because he was never disciplined for his conduct toward Plaintiff, which Plaintiff alleges constituted similar violations of Defendant Lamb Weston's policy manual that Plaintiff also violated. Pl.'s Opp'n 22-23.
The Court finds Plaintiffs argument unavailing. At the outset, Defendant Gerardo was not similarly situated to Plaintiff-Defendant Gerardo was a receiving operator, and a lower-level employee, while Plaintiff held a supervisory role as a receiving lead. Thus, the two employees were not similarly situated. See Vasquez, 349 F.3d at 641. Additionally, even if the two were similarly situated, Plaintiff has failed to demonstrate that Defendant Gerardo was treated more favorably than Plaintiff. Although Plaintiff made numerous allegations of Defendant Gerardo's conduct, none of Plaintiff s reports were substantiated. Put simply, Plaintiff has not put forth evidence that Defendant Gerardo committed a workplace violation of comparable seriousness to Plaintiffs. Thus, Plaintiff has failed to offer any evidence that similarly situated male employees were treated more favorably than Plaintiff.
ii. Inference that Sex Discrimination Occurred
Second, Plaintiff has not set forth sufficient evidence that other circumstances surrounding her termination give rise to an inference that sex discrimination existed. The Ninth Circuit has made clear that a plaintiff may still satisfy the fourth element of a prima facie case when “other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Hawn v. Executive Jet Mgmt, Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) (internal quotations omitted). The Court considers all evidence to determine whether discrimination existed. Reynaga, 847 F.3d at 691. “In establishing that ‘gender played a motivating part in an employment decision,' a plaintiff . . . may introduce evidence that the employment decision was made in part because of a sex stereotype.” Jespersen v. Harrah's Operating Co., 444 F.3d 1104, 1109-10 (9th Cir. 2006) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 250-52 (1989), abrogated on other grounds as reflected in Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, 140 S.Ct. 1009, 1017, 206 L.Ed.2d 356 (2020).
Plaintiff argues that Defendant Lamb Weston, through its male supervisors, discriminated against Plaintiff by refusing to respond or address Plaintiff's grievances and requests for assistance. Pl.'s Opp'n 24. She further contends that Defendant Lamb Weston adhered to a discriminatory assumption that Plaintiff was “merely overacting,” and Lamb Weston ultimately punished Plaintiff for opposing that discrimination. Id. According to Plaintiff, a reasonable jury could determine, after considering the evidence as a whole, that gender bias motivated Defendant Lamb Weston's failure to intervene, which directly led to Plaintiff's termination. Id. at 24-25.
Viewing all the evidence in the light most favorable to Plaintiff, she has not demonstrated that circumstances surrounding her termination give rise to an inference that Defendant Lamb Weston discriminated against Plaintiff based on her sex. Despite evidence that Defendant Lamb Weston and its male supervisors did not respond to Plaintiff's eight grievances, and evidence that Defendant Cooper did not keep any written findings of his alleged investigations into Plaintiff's grievances, Plaintiff has failed to demonstrate that those actions occurred because of her sex. Moreover, Plaintiff has failed to present evidence that would sufficiently link how Defendant Lamb Weston's failure to intervene or investigate her complaints led directly to Plaintiff's termination.
Although Plaintiff does not explicitly make this argument in her opposition to Defendants' motion, the Court also does not find that Defendant Lamb Weston engaged in sex stereotyping in terminating Plaintiff. A plaintiff can show gender discrimination if evidence shows that she was treated differently because she failed to “conform to commonly-accepted gender stereotypes.” Jespersen, 444 F.3d at 1112-13; see Arjangrad v. JPMorgan Chase Bank, N.A., No. 3:10-CV-01157-PK, 2012 WL 1189750, at *23 (D. Or. Apr. 9, 2012). The Court construes Plaintiff's argument that Defendant Lamb Weston believed that Plaintiff was “merely overreacting” to be synonymous with a gender stereotyping argument. However, irrespective of whether any or which sex stereotypes existed here, the Supreme Court has explained that even if some form of gender stereotyping exists, “[t]he plaintiff must show that the employer actually relied on her gender in making its [adverse employment] decision.” Price Waterhouse, 490 U.S. at 251. Here, Plaintiff has failed to point to any evidence that Defendant Lamb Weston's failure to intervene, even if based on a gender stereotype, was relied upon in terminating Plaintiff.
Further, Plaintiff's arguments pertaining to sex stereotyping would mostly pertain to the written and verbal warnings that she received during her employment rather than her termination. As already discussed above, the warnings that Plaintiff received do not constitute adverse employment actions that can satisfy an element of her sex discrimination and harassment claims.
In short, the Court concludes that Plaintiff's evidence does not meet the threshold for defeating summary judgment in a Title VII sex discrimination case. Plaintiff has not offered any evidence, circumstantial or otherwise, that would support a reasonable inference that her termination was the result of sex discrimination. Viewing the record in the light most favorable to Plaintiff, she was not discharged because of her sex, but because Defendant Lamb Weston found that Plaintiff violated the company's policy manual when she made unwanted physical contact with Defendant Gerardo. Even if there is a factual dispute as to whether that contact occurred, there are still not sufficient facts to demonstrate that the termination was based on Plaintiff's sex. As such, Defendant Lamb Weston's second Motion for Summary Judgment on Plaintiff's federal sex discrimination claim should be granted.
C. State Law Sex Harassment Claim
Accordingly, because Plaintiff cannot make out a prima facie case under her Title VII sex discrimination claim, she cannot make one under state law. See Whitley, 654 F.Supp.2d at 1213. Thus, Defendant Lamb Weston Motion for Summary Judgment on Plaintiff's state discrimination claim should be granted.
IV. Motion 4 - Hostile Work Environment Claim
Plaintiff's third claim for relief is for hostile work environment against all Defendants pursuant to ORS 659A.030. ORS 659A.030(1)(b) provides that it is an unlawful employment practice “[f]or an employer, because of an individual's . . . sex . . . to discriminate against the individual in compensation or in terms, conditions or privileges of employment.” Additionally, it is unlawful employment practice for “any person, whether an employer or employee, to aid, abet, incite, compel, or coerce the doing of any acts forbidden under” ORS Chapter 659A. ORS 659A.030(1)(g).
“Because ORS 659[A].030 was modeled after Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Oregon courts look to federal cases construing Title VII for guidance in construing ORS 659A.030.” H. K. v. Spine Surgery Ctr. of Eugene, LLC, 305 Or.App. 606, 611 (2020), review denied, 367 Or. 826 (2021).
“A plaintiff may establish a sex hostile work environment claim by showing that [s]he was subjected to verbal or physical harassment that was sexual in nature, that the harassment was unwelcome and that the harassment was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment.” Dawson v. Entek Int'l, 630 F.3d 928, 937-38 (9th Cir. 2011). To determine whether conduct has created an abusive working environment, “[a] plaintiff must establish that the conduct at issue was both objectively and subjectively offensive: [s]he must show that a reasonable person would find the work environment to be ‘hostile or abusive,' and that [s]he in fact did perceive it to be so.” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
Moreover, when assessing the objective offensiveness, the court assumes the perspective of the reasonable victim: “[A] female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991) (footnotes and citation omitted). The Ninth Circuit uses “a totality of the circumstances test to determine whether a plaintiff's allegations make out a colorable claim of hostile work environment.” Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000). The “frequency, severity, and level of interference with work performance [are] among the factors particularly relevant to the inquiry.” Id. at 924 (citing Harris v. Forklift Sys. Inc., 510 U.S. 17 (1993)).
Defendants argue that Plaintiff cannot establish a prima facie claim for hostile work environment because she has failed to establish that she suffered harassment of a sexual nature. Defs.' Memo. in Support 16. Specifically, Defendant Gerardo argues that Plaintiff's complaints only related to Defendant Gerardo's job performance, so Plaintiff has failed to demonstrate that she experienced an objectively abusive work environment. Id. at 17. Regarding Defendants Cooper and Lamb Weston, those Defendants contend that Plaintiff has failed to articulate any conduct or actions-besides Plaintiff's termination-that would have alerted either Defendant that Plaintiff experienced a hostile work environment based on her sex. Id. at 17. Plaintiff responds that, taken together, the events leading up to Plaintiff's termination demonstrate an objectively hostile working environment based on Plaintiff's sex. Pls.' Opp'n 29-30.
A. Defendant Gerardo
Plaintiff claims that Defendant Gerardo's constant insubordination and disrespect toward Plaintiff, along with Defendant Gerardo's alleged attempted sexual misconduct, pervaded her work environment to a degree that created an abusive working environment based on her sex. Pl.'s Opp'n 29-32. It is undisputed that Plaintiff has provided sufficient evidence to demonstrate subjective hostility. See Defs.' Memo in Support 17; Pls' Resp. at 29. Thus, the question remains whether Plaintiff has demonstrated objective hostility.
Having considered the evidence as a whole, the Court concludes that Plaintiff has set forth a genuine question whether she had an objective belief that Defendant Gerardo created a hostile work environment based on Plaintiff's sex. In the context of hostile work environment claims, the question whether a plaintiff's belief was objectively reasonable “generally is one of fact for the jury.” Walker v. State by & through Oregon Travel Info. Council, 367 Or. 761, 781, (2021) (citing Harris, 510 U.S. at 22).
Plaintiff has set forth sufficient evidence that would allow a reasonable jury to find that Defendant Gerardo's conduct was so severe or pervasive that it altered the conditions of Plaintiff's employment and created a hostile work environment. Overall, considering evidence of (1) Plaintiff's allegations of Defendant Gerardo's alleged sexual contact; and (2) Plaintiff's grievances about Defendant Gerardo's insubordination, taken together, creates a genuine issue of Plaintiff's objective belief.
First, Plaintiff's claims of inappropriate attempted sexual contact support her claim for sex hostile work environment against Defendant Gerardo. Plaintiff testified that Defendant Gerardo's alleged sexual contact occurred with some frequency. Plaintiff testified in a deposition that Defendant Gerardo attempted to kiss her “a few times.” Cambreleng Decl. Ex. A at 6, 117:24. She testified that on one occasion when he attempted to kiss her it made her sick to her stomach. Id. at Ex. A at 8, 124:17-21. Plaintiff also reported that there were “a couple of incidents” of Defendant Gerardo attempting to touch Plaintiff. Id. at Ex. A at 6, 117:20-22. Although the Ninth Circuit has observed that “isolated incidents of inappropriate behavior d[o] not create a hostile or abusive environment,” Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 590 (9th Cir. 1992), the Court finds that Plaintiff has presented sufficient evidence that could allow a jury to determine that the multiple instances of Defendant Gerardo's alleged inappropriate contact created a hostile work environment for Plaintiff.
Although Defendants argue that Plaintiff's testimony concerning Defendant Gerardo's alleged sexual contact should not considered for the purposes of this motion, Reply Supp. Def.' Mot. Summ. J. 4-5, ECF 41 (citing Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) (explaining the sham affidavit rule)), the Court finds that argument unpersuasive. Plaintiff testified on January 11, 2019. Jagelski Decl. Ex. 1. While Plaintiff was describing her thought process before she touched Defendant Gerardo on October 8, she was asked if she had “ever had any physical problems with [Defendant Gerardo] in the past?” Id. at 6:14-25. Plaintiff responded in the negative. Id. at 6:24-25-7:1-3. Defendants now argue that Plaintiff's answer to the question on January 11 contradicts her later testimony concerning Defendant Gerardo's alleged sexual advances. The Court sees the earlier testimony differently: based on the context of the questioning during the January 11 deposition, Plaintiff answered that question in the context of physical altercations with Defendant Gerardo and not in the context of sexual contact with him. Thus, the Court declines Defendants' invitation to ignore Plaintiff's later testimony as contradictory.
Second, Plaintiff filed numerous grievances about Defendant Gerardo during an eight-month span detailing his constant insubordination, disrespect, and creation of unsafe work environments for Plaintiff. Cambreleng Decl. Ex. B at 15-29. While Plaintiff's grievances never discussed Defendant Gerardo's alleged sexual contact, Plaintiff's final grievance filed on October 8 reported that she believed that she “ha[s] been discriminating [sic] against by [her] co-worker [Defendant Gerardo]. He refuses to listen to [her]. He will not take direction from a white female and purposely has tried to sabotage [her].” Cambreleng Decl. Ex. B at 29.
Considering both Plaintiff's numerous grievances, combined with Plaintiff's allegations of attempted sexual contact, Plaintiff has demonstrated that Defendant Gerardo's actions could be severe enough to support a claim for hostile work environment. Moreover, Defendant Gerardo's conduct was sufficiently severe to lead to an interference with Plaintiff's work: Plaintiff was forced to file numerous grievances about Defendant Gerardo during her employment. Thus, Plaintiff has set forth sufficient evidence that would permit a reasonable jury to conclude that Defendant Gerardo created an objectively hostile work environment based on Plaintiff's sex. Accordingly, Defendant's Motion for Summary Judgment on Plaintiff's hostile work environment claim against Defendant Gerardo should be denied.
B. Defendant Lamb Weston and Defendant Cooper
On the other hand, Plaintiff has not demonstrated that Defendant Cooper and Defendant Lamb Weston engaged in a pattern or practice of condoning Defendant Gerardo's harassment to create a hostile work environment because of Plaintiff's sex. See Dawson, 630 F.3d at 937-38. “[W]hen the plaintiff claims that a co-worker created a hostile environment through sexual harassment, the employer is liable if the employer knew or should have known of the harassment and failed to take prompt remedial action.” Harris v. Pameco Corp., 170 Or.App. 164, 177 (2000) (internal quotation marks omitted); see also Dawson, 630 F.3d at 938.
As was already recited above, Plaintiff's filed numerous grievances about Defendant Gerardo's insubordination and disrespect, but Plaintiff never filed any grievances about Defendant Gerardo's attempted sexual contact. While her grievance reports put Lamb Weston on notice that Defendant Gerardo was insubordinate and disrespectful, those grievance reports could not have put her employer on notice of any harassment that is protected under Title VII. As such, Plaintiff has failed to show that either Defendant Lamb Weston or Defendant Cooper knew or should have known of Defendant Gerardo's alleged attempted inappropriate contact.
Thus, given that Lamb Weston and its supervisors were not alerted to any harassment from Defendant Gerardo toward Plaintiff because of her sex, Plaintiff has failed to prove that her employer or Defendant Cooper knew or should have known of the harassment and did not take adequate steps to address it. Accordingly, Plaintiff has not satisfied her burden in establishing a prima facie hostile work environment claim based on her sex against Defendant Lamb Weston and Defendant Cooper. Defendant Lamb Weston and Defendant Cooper's Motion for Summary Judgment on Plaintiff's hostile work environment claim should therefore be granted.
V. Motions 5 and 6 - Retaliation Claims
In Plaintiff's fourth and fifth claims for relief, she asserts a federal retaliation claim against Defendant Lamb Weston under Title VII and a state retaliation claim against all Defendants pursuant to ORS 659A.030(1)(f), (g). “The substantive analysis for retaliation under Title VII and ORS § 659A.030 is substantially similar, and courts analyze the claims together.” Lindsey v. Clatskanie People's Utility District, 140 F.Supp.3d 1077, 1086 (D. Or. 2015). Under Title VII, it is “an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). ORS § 659A.030(1)(f) makes it unlawful “[f]or any person to discharge, expel or otherwise discriminate against any other person because that other person has opposed any unlawful practice.”
To establish a prima facie case for retaliation under both state and federal law, a plaintiff must show that (1) she engaged in a protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) there is a causal link between the plaintiffs protected activity and the employer's actions. Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987). If the plaintiff can establish a prima facie case, then the burden shifts to the employer to present legitimate reasons for the adverse employment action. Brooks, 222 F.3d at 928. If the employer carries this burden, then the “plaintiff must demonstrate a genuine issue of material fact as to whether the reason advanced by the employer was a pretext. Only then does the case proceed beyond the summary judgment stage.” Id. (internal citation omitted). Plaintiff s final “burden is hardly an onerous one: the plaintiff [who has established a prima facie case] need produce very little evidence of discriminatory motive to raise a genuine issue of fact as to pretext.” Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir. 1997) (internal quotations omitted).
Here, there is no dispute that Plaintiff was subjected to an adverse employment action when she was terminated. See Brooks, 229 F.3d 917 at 928 (“Among those employment decisions that can constitute an adverse employment action are termination.”). Thus, the remaining question is whether Plaintiff has met the first and third elements of her retaliation claims. The Court concludes that Plaintiff has established the remaining two elements of a prima facie retaliation claim.
A. Plaintiff's Prima Facie Case
i. Protected Activity
A plaintiff engages in a protected activity if the plaintiff has an objectively reasonable belief that the discriminatory or harassing conduct violates Title VII. Trent v. Valley Elect. Assn., 41 F.3d 524, 526 (9th Cir. 2001). An employee's statement constitutes a protected activity if “‘it refers to some practice by the employer that is allegedly unlawful.'” Sereno-Morales v. Cascade Food Inc., 819 F.Supp.2d 1148, 1153 (D. Or. 2011) (quoting Maxwell v. Kelly Servs., 730 F.Supp.2d 1254, 1270 (D. Or. 2010) (quoting EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1013 (9th Cir. 1983))). It does not matter whether the conduct is legally cognizable; the plaintiff's activity is protected so long an objectively reasonable belief exists that the employer's conduct is unlawful. Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978). Simply put, “an employee may fail to prove an ‘unlawful employment practice' and nevertheless prevail on [her] claim of unlawful retaliation.” Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir. 1988).
Defendants contend that all Plaintiff's grievances preceding her October 8 grievance did not constitute a protected activity because those earlier grievances discussed Defendant Gerardo's inadequate job performance and not that Plaintiff was subjected to sex discrimination and harassment that violated Title VII. Defs.' Mot. Support at 18. Defendants do not argue- nor could they-that Plaintiff did not engage in a protected activity when she filed her last grievance report on October 8.
Defendants rely on two cases for the proposition that an employee's complaint to an employer cannot constitute a protected activity: Sereno-Morales v. Cascade Food Inc., 819 F.Supp.2d 1148, 1153 (D. Or. 2011) and Thomas v. City of Beaverton, 379 F.3d 802, 808 (9th Cir. 2004) (relying on at oral argument). Both cases are inapplicable and distinguishable to the case at hand. In Sereno-Morales, the plaintiff filed a restraining order against a male employee. 819 F.Supp.2d at 1153. The Sereno-Morales court held that the plaintiff's report to her employer of the restraining order was not a protected activity because her conduct did not oppose any activity protected under Title VII. Id. at 1154. Here, Plaintiff filed grievances directly with Defendant Lamb Weston, with her last grievance explaining that she felt that she was being discriminated against because she is a woman. In Thomas, the Ninth Circuit explained that, in the context of a first amendment retaliation claim, speech may only be considered a protected activity if the plaintiff speaks as a citizen upon matters of public concern rather than as an employee upon matters of private concern. 379 F.3d at 808. Here, Plaintiff does not assert a first amendment retaliation case; thus, plaintiff is only required to demonstrate that she engaged in protected activity by opposing actions that she believed violated Title VII.
“Asserting one's civil rights . . . is a protected activity under Title VII.” Brooks, 229 F.3d at 928 (concluding that a plaintiffs complaint about an employee's harassment is a protected activity under Title VII). Plaintiff submitted eight grievances to HR within an eight-month span and often reported her frustrations directly to supervisors. In all those grievances, Plaintiff complained of Defendant Gerardo's conduct and HR's repeated failure to intervene or assist. Importantly, in her final grievance filed on October 8, Plaintiff reported that she “ha[s] been discriminating [sic] against by [her] co-worker [Defendant Gerardo]. He refuses to listen to [her]. He will not take direction from a white female and purposely has tried to sabotage [her].” Cambreleng Decl. Ex. B at 29. Cambreleng Decl. Ex. F at 1. Viewed in the light most favorable to Plaintiff, Plaintiffs October 8 grievance report opposed conduct that Plaintiff perceived to be unlawful under Title VII: sex discrimination from Defendant Gerardo. Thus, Plaintiff has presented sufficient evidence to allow a reasonable jury to find that she engaged in a protected activity by opposing an employment practice that she reasonably believed violated the law.
ii. Causal Link
Plaintiff has also set forth sufficient evidence that creates a genuine issue whether a causal link exists between her protected activity and her adverse employment action based on the temporal proximity between the two acts. The Ninth Circuit has recognized that “proximity in time between the protected action and the allegedly retaliatory employment decision [i]s one [way] a jury logically could infer [that the plaintiff] was terminated in retaliation.” Dawson, 630 F.3d at 937 (quoting Keyser v. Sacramento City Unified Sch. Dis., 265 F.3d 741, 751-52 (9th Cir. 2001)); see also Yartzoff, 809 F.2d at 1376 (“Causation sufficient to establish the third element of the prima facie case may be inferred from circumstantial evidence, such as the employer's knowledge that the plaintiff engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision.”). Significantly, “temporal proximity can by itself constitute sufficient circumstantial evidence of retaliation for purposes of both the prima facie case and the showing of pretext.” Dawson, 630 F.3d at 937 (emphasis added).
Defendants assert that Plaintiff cannot prove a causal link between her protected activity and termination because Plaintiff only has a subjective belief that she was terminated for engaging in a protected activity. Defs.' Mot. Supp. 19-20. The Court disagrees.
Here, there was a close proximity in time between Plaintiff's protected activity and her termination: Plaintiff filed her final grievance on October 8, 2018, Cooper Decl. Ex. 15, and she was terminated on October 16, 2018. Cooper Decl. Ex. 19. “[W]here an adverse employment action follows on the heels of protected activity,” timing alone can suffice to show causation. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). Given the temporal proximity between Plaintiff's final grievance report and her termination, a reasonable jury could find that Plaintiff has established a prima facie case of retaliation under both Title VII and ORS 659A.030.
B. Defendant Lamb Weston's Reasons for Terminating Plaintiff and Pretext
The “McDonnell Douglas burden-shifting framework” applies to retaliation cases brought in the Ninth Circuit. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004); see Snead, 237 F.3d at 1090-94 (holding that although Oregon courts do not follow the burden-shifting approach, the Oregon rule is not outcome-determinative, so the burden-shifting framework is appropriate in the Ninth Circuit). If the plaintiff establishes a prima facie case of retaliation, then the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for” the adverse employment actions. McDonnell Douglas Corp., 411 U.S. at 802. Only the burden of production shifts; the plaintiff still carries the burden of persuasion. Burdine, 450 U.S. at 256. If the defendant offers a legitimate, nondiscriminatory reason for the employment action, the plaintiff then must then establish that the reason is “a pretext or discriminatory in its application.” McDonnell Douglas Corp., 411 U.S. at 807.
Defendants argue that it had a legitimate, non-discriminatory reason for terminating Plaintiff after she struck Defendant Gerardo. Defs.' Memo in Support 13. The Court agrees that Defendant has provided a legitimate, non-discriminatory reason for terminating Plaintiff. Thus, the burden shifts back to Plaintiff to prove pretext.
The Court recognizes that Defendants only argue in their Motion for Summary Judgment that Plaintiff has failed to demonstrate a prima facie case for retaliation. See Defs.' Memo. in Support 18-21. Defendant Lamb Weston did, however, argue that it had a legitimate, nondiscriminatory reason for terminating Plaintiff and that Plaintiff could not establish pretext in the context of her sex discrimination and harassment claims. See Id. at 13-14. For the purpose of analyzing Plaintiff's retaliation claims, the Court relies on Defendants' previous arguments given that it was provided under the same McDonnel Douglas framework that controls here.
A plaintiff may prove pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256. For instance, temporal proximity between protected activity and adverse employment action, coupled with contemporaneous evidence of the employer's displeasure with the plaintiff, may serve as “strong circumstantial evidence of retaliation.” Bell v. Clackamas Cnty., 341 F.3d 858, 866 (9th Cir. 2003).
As the Court has already recognized above, there was a close temporal proximity between Plaintiff's final grievance and her eventual termination. Plaintiff was terminated a little over a week after she filed her final grievance, which alleged that Defendant Gerardo discriminated against Plaintiff because she is a woman. Given the close proximity between the two occurrences, Plaintiff has presented sufficient evidence to create a genuine issue of material fact concerning whether her termination was pretextual. A jury should decide this question.
In sum, Defendants' Motion for Summary Judgment on Plaintiff's federal retaliation claim against Defendant Lamb Weston should be denied. Additionally, Defendants' Motion on Plaintiff's state law retaliation claim against Defendant Gerardo should be denied.
C. State Retaliation Claim Against Defendant Cooper
Finally, Defendant Cooper separately argues that he cannot be liable for retaliation under ORS § 659A.030(1)(g) because, as a supervisor, he was merely carrying out his job duties in being the primary actor in Plaintiff's termination. Defs.' Memo in Support 20.
ORS § 659A.030(1)(g) makes it unlawful “[f]or any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.” “Based upon the clear language of the statute, an ‘aiding and abetting' claim under that statute may be brought against an individual co-employee or an employer.” Hannan v. Bus. Journal Publications, Inc., 3:14-CV-00831-SB, 2015 WL 9265959, at *17 (D. Or. Oct. 2, 2015), report and recommendation adopted, 3:14-CV-00831-SB, 2015 WL 7720496 (D. Or. Nov. 30, 2015). One exception applies, however: a supervisor cannot be liable for aiding and abetting retaliation when that supervisor was the “primary actor” in the employee's termination. Hannan, 2015 WL 9265959, at *18 (“[T]he Court finds as a matter of law that [the supervisor] cannot be liable for aiding and abetting age discrimination where he was the primary actor in [the plaintiff's] termination.”) (collecting cases).
Defendant Cooper cannot be liable for aiding and abetting in retaliation when he was the primary actor responsible for Plaintiff's termination. Defendant Cooper investigated the October 8 incident, concluded that Plaintiff hit Defendant Gerardo, and ultimately recommended that Plaintiff's employment be terminated. Cambreleng Decl., Ex. B at 49. On October 16, 2018, Defendant Cooper terminated Plaintiff for workplace violence. Cooper Decl. ¶ 41; Cambreleng Decl., Ex. A at 13. Thus, as the primary actor responsible for Plaintiff's termination, Defendant Cooper cannot be liable for aiding and abetting retaliation under ORS 659A.030(1)(g). Accordingly, Defendant's Motion for Summary Judgment on Plaintiff's state law retaliation claim against Defendant Cooper should be granted.
VI. Motions 7 and 8 - Defamation and IIED
In her response to Defendants' Motion for Summary Judgment, Plaintiff withdraws her claims against Defendant for defamation and intentional infliction of emotional distress. Pl.'s Opp'n 39. Plaintiff's withdrawal is well-taken. As a result, Defendant Gerardo's motions related to those claims should be granted as unopposed.
RECOMMENDATION
Defendants' Motion for Summary Judgment, ECF 21, should be GRANTED in part and DENIED in part. Defendants' first motion should be DENIED; Defendant Lamb Weston's second and third motions should be GRANTED; Defendants' fourth motion should be DENIED as to Defendant Gerardo and GRANTED as to the remaining Defendants; Defendant Lamb Weston's fifth motion should be DENIED; Defendants' sixth motion should be GRANTED as to Defendant Cooper and DENIED as to the remaining Defendants; and Defendant Gerardo's seventh and eighth motions should be GRANTED as unopposed.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.