Opinion
2:19-cv-00353-HL
09-13-2022
MALCOLM CHERRY, Plaintiff, v. SERCO, INC., Defendant.
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN United States Magistrate Judge.
Plaintiff Malcolm Cherry brings this employment discrimination action against his former employer Defendant Serco, Inc. (“Serco”). This matter now comes before the Court on Defendant's Motion for Summary Judgment. The Court heard oral argument on the motion on August 3, 2022. ECF 73. For the reasons below, Defendant's motion should be GRANTED.
FACTUAL BACKGROUND
Plaintiff is an African-American man. Declaration of Malcolm Cherry (“Cherry Decl.”) ¶ 1, ECF 63. Defendant is a New Jersey Corporation that contracts to provide services to various federal agencies, including the Federal Aviation Administration (“FAA”). Declaration of Francis Magana (“Magana Decl.”) ¶ 3, ECF 50. As part of its contract with the FAA, Defendant operates FAA air traffic control towers across the western United States. Id. ¶ 4.
In May 2014, Defendant hired Plaintiff as an air traffic control specialist in Kodiak, Alaska. Magana Decl. Ex. B at 1, ECF 50-2. Around two years later, in April 2016, Plaintiff was transferred to a control tower based in Pendleton, Oregon. Magana Decl. Ex. D at 1, ECF 50-4. While he worked in Pendleton, Plaintiff reported to air traffic control manager John Bustard. Magana Decl. ¶ 10. Mr. Bustard reported to area manager Jerry Alvarado. Id. ¶ 11.
Sometime in fall 2016, a female air traffic controller filed complaints about Mr. Bustard. Cherry Decl. ¶ 3. On October 28, 2016, Mr. Alvarado interviewed Plaintiff regarding his coworker's complaints. Id.; Declaration of Neal A. Fisher (“Fisher Decl.”) Ex. B, Deposition of Gerardo Alvarado (“Alvarado Dep.”) 81:1-8, ECF 49. In the interview, Plaintiff substantiated his co-worker's complaints and informed Mr. Alvarado that Mr. Bustard had discriminated against and created a hostile work environment for women and minorities. Cherry Decl. ¶ 3; Magana Decl. Ex. M at 1-3, ECF 50-13. Plaintiff provided Mr. Alvarado with log that Plaintiff kept of Mr. Bustard's inappropriate comments and unsafe behavior. Fisher Decl. Ex. A, Deposition of Malcolm Cherry (“Cherry Dep.”) 12:20-13:6; 117:23-118:12.
Subsequently, Mr. Alvarado investigated all the reports made against Mr. Bustard. Alvarado Dep. 81:9-15. Defendant ultimately determined that most reports against Mr. Bustard were unsubstantiated except for one complaint that Mr. Bustard wore an inappropriate shirt that read “Al-Qaeda Hunter” to work, for which Mr. Bustard was reprimanded and coached on appropriate workplace conduct. Id. at 81:9-25; 82:1-83:21. No one followed up with Plaintiff following his report of Mr. Bustard's conduct, and Mr. Bustard's inappropriate conduct continued. Cherry Dep. 101:13-25; Cherry Decl. ¶¶ 4-5.
In March 2017, Mr. Bustard conducted Plaintiff's annual performance review. Magana Decl. Ex N, ECF 50-14. Plaintiff received an overall performance rating of 3.3, or “successfully achieved,” on a scale from 1 to 5. Id. at 6. According to Plaintiff, this performance review was the lowest rating that he had ever received as an air traffic controller. Cherry Dep. 96:15-24. Mr. Bustard described Plaintiff's performance review as positive and above average. Fisher Decl. Ex. E, Deposition of John Bustard (“Bustard Dep.”) 57:7-12, ECF 49-5.
In September 2017, Mr. Bustard went on vacation. During his absence, he designated an employee, Jeremiah Doherty, in charge. Id. at 39:4-6; Magana Decl. Ex. O, ECF 50-15. Additionally, a meeting was scheduled at the airport during his absence, and Mr. Bustard instructed staff to not attend the meeting because it would cause an employee to work unauthorized overtime. Bustard Dep. 38:21-39:13. Mr. Bustard wrote those instructions on a note that was taped to a counter and visible to everyone. Id. at 39:7-13. Despite Mr. Bustard's instructions, Plaintiff attended the meeting and told an employee to come in early so that Plaintiff could attend the meeting. Magana Decl. Ex. O. When Mr. Bustard returned to work, he discovered that the employee had worked unauthorized overtime due to Plaintiff's instructions. Bustard Dep. 13:24-14:12.
Mr. Bustard eventually called Plaintiff to a meeting to discuss the other employee's unauthorized overtime. Id. at 12:9-17; 39:18-40:22; Cherry Dep. 83:7-18. During the meeting, Plaintiff became hostile and angry. Bustard Dep. 12:9-17. It is undisputed that during the meeting, Plaintiff told Mr. Bustard that “if you weren't my boss, I'd beat the shit out of you.” Cherry Dep. ¶ 2; Bustard Dep. 13:1-5 (noting that Plaintiff was towering over Mr. Bustard with his fist cocked when making the statement); Magana Decl. Ex. O. Plaintiff was not physically removed from the meeting. Bustard Dep. 13:1-16. Throughout this meeting, Mr. Bustard never made statements about race or gender, physically threatened Plaintiff, nor engaged in conduct that made Plaintiff fear for his safety. Cherry Dep. 87:14-88:2.
Following the meeting, Mr. Bustard reported Plaintiff's threatening comment to Mr. Alvarado, and Defendant's Human Resources (“HR”) Department investigated the incident. Magana Decl. Ex. O; Declaration of Meghan Capozzoli (“Capozzoli Decl.”) ¶ 4, ECF 48. HR Representative Meghan Capozzoli (formerly Meghan Haug) investigated Mr. Bustard's complaint. Id. Ms. Capozzoli did not possess decision-making authority to discharge employees; rather, she was responsible for investigating complaints and recommending a course of action. Id. ¶ 3.
Ms. Capozzoli interviewed Mr. Bustard and Plaintiff separately. Id. ¶ 4. During Ms. Capozzoli's interview of Plaintiff, he repeated his reports from 2016 about Mr. Bustard's inappropriate behavior, and Plaintiff admitted that he made a statement threatening physical violence against Mr. Bustard. Id. ¶ 4; Cherry Dep. 94:21-95:1; 160:22-161:23; 163:10-18.
Defendant maintains a workplace violence policy that prohibits all workplace violence. Magana Decl. Ex. J at 1, ECF 50-10. The policy defines violence as “incidents where persons are abused, threatened or assaulted in circumstances relating to their work that involve an explicit or implicit challenge to their safety, well-being or health....” Id. According to the policy, an example of violence includes “threating behavior or remarks, whether oral or written.” Id. Additionally, the policy provides that a violation “shall be considered unacceptable conduct and will be grounds for discipline, up to and including termination.” Id.
At the conclusion of her investigation, Ms. Capozzoli recommended discharging Plaintiff based on his admission that he threatened Mr. Bustard. Capozzoli Decl. ¶ 4. Mr. Alvarado and the program director, David McCann, also recommended discharging Plaintiff. Alvarado Dep. 12:8-13:7; 20:11-20. After considering Ms. Capozzoli's investigation and management's recommended discipline, the HR Manager, Francisco Magana, made the final decision to terminate Plaintiff. Magana Decl. ¶ 24; Capozzoli Decl. ¶ 5. On October 9, 2017, Plaintiff was terminated for violating Defendant's workplace violence policy. Magana Decl. Ex. E, ECF 50-5.
PROCEDURAL BACKGROUND
Plaintiff initiated this claim on March 8, 2019. Compl. 5, ECF 1. Plaintiff asserts two claims for relief: (1) race discrimination under Or. Rev. Stat. § (“ORS”) 659A.030(1)(b); and (2) retaliation under ORS 659A.030(1)(f). Id. at ¶¶ 10-13. Defendant has filed a Motion for Summary Judgment seeking an order granting judgment in its favor on both of Plaintiff's claims. Def.'s Mot. Summ. J., ECF 47.
After Defendant filed its Motion for Summary Judgment, Plaintiff filed a Motion to Extend Discovery Deadlines or in the alternative a Motion to Strike Witness Testimony or a Motion for Sanctions. Mot. Extend Discovery Deadlines, ECF 60. The Court heard oral argument on this motion on August 3, 2022. ECF 73. Given the recommended disposition on the summary judgment motion, the court denied Plaintiff's Motion to Extend Discovery. ECF 75.
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
Defendant moves for summary judgment as to all Plaintiff's claims, arguing that all his claims fail as a matter of law. Def.'s Mot. Summ J. 11-27. In opposition, Plaintiff asserts that triable issues of fact exist as to each cause of action, which would preclude summary judgment. Resp. Mot. Summ. J. 5-14, ECF 62.
As is further explained below, the Court concludes that no genuine disputes of material fact exist, and Defendant should be entitled to judgment as a matter of law. As to Plaintiff's race discrimination claim, Plaintiff has not set forth a prima facie cause of race discrimination. Further, even if Plaintiff had set forth a prima facie case, Plaintiff has failed to set forth specific evidence demonstrating that Defendant's proffered reason for terminating Plaintiff was pretextual. As to Plaintiff's retaliation claim, Plaintiff has failed to set forth sufficient evidence demonstrating a causal link between his engagement in a protected activity and his termination. Defendant's motion should therefore be granted.
I. Race Discrimination Claim
Plaintiff brings his first claim for relief under ORS 659A.030(1)(b), which provides that it is an unlawful employment practice “[f]or an employer, because of an individual's race, color, religion, sex, sexual orientation, national origin, marital status or age . . . to discriminate against the individual in compensation or in terms, conditions or privileges of employment.” State law claims asserted under ORS 659A.030 are analyzed under the same McDonnell Douglas burdenshifting framework as claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Dawson v. Entek Int'l, 630 F.3d 928, 934-35 (9th Cir. 2011); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-04 (1973); Jost v. Synopsis, Inc., 3:21-CV-01793-HZ, 2022 WL 3083722, at *4 (D. Or. Aug. 1, 2022).
To establish a prima facie case of racial discrimination, a plaintiff must demonstrate that “(1) he belongs to a protected class, (2) he was qualified for the position, (3) he was subjected to an adverse employment action, and (4) similarly situated . . . individuals were treated more favorably.” Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 658 (9th Cir. 2002), as amended (July 18, 2002) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, (1993)). The evidence required to establish a prima facie case on summary judgment “is minimal and does not even need to rise to the level of a preponderance of the evidence.” Aragon, 292 F.3d 659 (internal quotations omitted).
If the plaintiff succeeds in establishing a prima facie case, then the burden of production shifts to the employer to “articulate a legitimate, nondiscriminatory reason for terminating [the plaintiff's] employment.” Id. at 658 (citing McDonnell Douglas, 411 U.S. at 802). If an employer does so, then the plaintiff must “demonstrate that [the employer's] articulated reason is a pretext for unlawful discrimination by ‘either directly 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.'” Aragon, 292 F.3d at 658-59 (quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir. 2000)). Significantly, the plaintiff's demonstration of pretext requires a higher burden of production than mere minimal evidence: the evidence “must be both specific and substantial to overcome the legitimate reasons set forth by [the employer].” Aragon, 292 F.3d at 659 (emphasis in original).
A. Prima Facie Case
As a preliminary matter, it is undisputed that Plaintiff belongs to a protected class as an African-American man. Nor is it disputed that Plaintiff was qualified for his position. Plaintiff also offers that he can satisfy both the third and fourth elements of a prima facie case. Defendant argues, however, that (a) before his termination, Plaintiff was not subjected to any adverse employment actions, and (b) Plaintiff cannot prove that there were similarly situated employees who were treated more favorably than Plaintiff or that other circumstances existed surrounding his termination that demonstrated discrimination occurred. Def.'s Mot. Summ. J. 13-17.
1. Plaintiff's termination was the only adverse employment action.
To begin with, it is undisputed that Plaintiff's termination constituted an adverse employment action. An adverse employment action is an action that “materially affects compensation, terms, conditions, or privileges” of employment. 42 U.S.C. § 2000e-2(a)(1); Ray v. Henderson, 217 F.3d 1234, 1242 (9th Cir. 2000). “Among those employment actions that may qualify as adverse are termination, demotion, suspension, removal of job responsibilities, imposition of more burdensome work activities, overtime, reduction in salary or benefits, and substantial interference with work facilities that are key to job performance.” Huitt v. Optum Health Serv's, 216 F.Supp.3d 1179, 1188 (D. Or. 2016) (internal citation omitted) (citing Kang v. U. Lim. Am., Inc., 296 F.3d 810, 818-19 (9th Cir. 2002). It is undisputed that Plaintiff was terminated on October 9, 2017. Because termination is considered an adverse employment action, Brooks, 229 F.3d 917 at 928 (“Among those employment decisions that can constitute an adverse employment action are termination.”), Plaintiff meets the third element of his prima facie case.
The parties dispute whether any of Defendant's actions leading up to Plaintiff's termination constituted adverse employment actions. Plaintiff argues that (1) Mr. Bustard's performance review of Plaintiff and (2) Defendant's lack of an investigation into Plaintiff's reports of Mr. Bustard's conduct both constituted adverse employment actions that demonstrate Defendant's racial discrimination against Plaintiff. Resp. Mot. Summ. J. 5-7.
Defendant's pretermination actions did not constitute adverse employment actions. First, although Plaintiff contends that his performance review evaluation score was below average and constitutes an adverse employment action, courts have explained that a “low performance evaluation [that] does not affect the employee's work does not amount to an adverse employment action.” Hess v. Multnomah County, 216 F.Supp.2d 1140, 1154 (D. Or. 2001) (citing Kortan v. California Youth Auth., 217 F.3d 1104, 1112-13 (9th Cir. 2000). Here, Plaintiff does not identify any evidence indicating that his performance review of “successfully achieved” resulted in any changes to his job terms or conditions.
Second, any failure from Defendant to inform Plaintiff about its investigation of Mr. Bustard's inappropriate conduct similarly does not constitute an adverse employment action. Courts have observed that an employer's “failure to inform [an employee] of its findings or resulting disciplinary actions is certainly irritating and perhaps unjustified,” but it does not constitute an adverse employment action when that failure “did not materially affect the [plaintiff's] compensation, terms, conditions, or privileges . . . of employment.” Chuang, 225 F.3d at 1126. Here, Mr. Alvarado investigated Plaintiff's reports of Mr. Bustard's conduct, and Mr. Alvarado disciplined Mr. Bustard for the substantiated claims. Alvarado Dep. 81:9-25; 82:1-83:21. Thus, even if Defendant failed to follow-up with Plaintiff concerning the results of its investigation, Defendant's failure to follow-up did not amount to an adverse employment action. Accordingly, this Court agrees with Defendant that Plaintiff's termination is the only adverse employment action at issue.
2. Plaintiff has failed to identify similarly situated employees treated more favorably or any circumstances surrounding his termination that gives rise to an inference of discrimination.
To meet the fourth and final McDonnell Douglas element of a prima facie discrimination case, the plaintiff must either show that “similarly situated employees were treated more favorably, or other circumstances surrounding the employment action give rise to an inference of discrimination.” Reynaga v. Roseburg Forest Prod., 847 F.3d 678, 690 (9th Cir. 2017). The Court considers all evidence to determine whether discrimination existed. Reynaga, 847 F.3d at 691.
Here, Plaintiff has failed to meet his burden of demonstrating that similarly situated employees were treated more favorably or that there were any circumstances surrounding his termination that would give rise to an inference of discrimination. Plaintiff has not produced any evidence of similarly situated employees who were treated more favorably than Plaintiff after threatening a supervisor with physical violence. Further, Mr. Alvarado testified that he is unaware of any employee who had ever received discipline short of discharge for violating Defendant's workplace violence policies. Alvarado Depo. 40:12-17.
Further, the circumstances surrounding Plaintiff's termination do not give rise to an inference of discrimination: Plaintiff was terminated in October 2017 after he admitted that he threatened physical violence against Mr. Bustard. Although Plaintiff argues that an inference of discrimination exists because Defendant failed to investigate his 2016 complaints of Mr. Bustard's racist and sexist comments, Resp. Mot. Summ. J. 5-7, Plaintiff does not identify how Defendant's failure to investigate permits an inference that his termination-which occurred one year later and was a result of Plaintiff's violation of the workplace violence policy-was a result of racial discrimination.
Importantly, Mr. Bustard was not involved in Plaintiff's termination. To be clear, if Mr. Bustard engaged in racist and sexist behavior, then those actions would be inexcusable.
Unfortunately, even if the Court were to accept those facts as true, those facts alone cannot allow the Court to find that Plaintiff's termination was a result of Mr. Bustard's discrimination. There is simply no evidence connecting Mr. Bustard's alleged discriminatory statements and actions with Defendant's decision to terminate Plaintiff. As such, the Court is unconvinced that Plaintiff has met his burden with respect to the final element of his prima facie case.
Plaintiff does not assert any claim under a cat's paw theory of liability. See Tsur v. Intel Corp., Case No. 3:21-cv-655-SI, 2021 WL 4721057, at *5 (D. Or. Oct. 8, 2021) (“Under a cat's paw theory of liability, the discriminatory animus of a supervisor imputes to the employer if the supervisor committed an act with discriminatory intent, intended for that act to cause an adverse employment action, and that act is a proximate cause of the ultimate adverse employment action.”). In this case, even if Plaintiff had asserted a claim under a cat's paw theory of liability, the undisputed facts demonstrate that Defendant's investigation into Plaintiff's termination was independent. See Lakeside-Scott v. Multnomah County, 556 F.3d 797, 806 (9th Cir. 2009); Poland v. Chertoff, 494 F.3d 1174, 1183 (9th Cir. 2007) (“[I]f an adverse employment action is the consequence of an entirely independent investigation by an employer, the animus of the retaliating employee is not imputed to the employer.”).
The Court is mindful, however, that Plaintiff's burden of persuasion to set forth a prima facie case is a low bar and requires only minimal evidence. As such, the Court continues on with its analysis assuming arguendo that Plaintiff produced enough evidence to establish a prima facie case of race discrimination.
B. Legitimate, Nondiscriminatory Reason for Termination
Assuming Plaintiff could set forth a prima facie case, then the burden shifts to Defendant to offer a legitimate, nondiscriminatory reason for Plaintiff's termination. Defendant has met its burden of demonstrating that it had a legitimate, nondiscriminatory reason for terminating Plaintiff. As noted above, Defendant maintains a workplace violence policy that prohibits workplace violence, which is defined to include “threatening behavior or remarks, whether oral or written.” Magana Decl. Ex. J at 2. Defendant's workplace violence policy states that any violation may be grounds for termination. Id. Plaintiff concedes that Defendant terminated him after he threatened Mr. Bustard, which violated Defendant's workplace violence policy. Cherry Decl. ¶¶ 2, 8. Given Plaintiff's violation of the workplace violence policy, Defendant has satisfied its burden of proving that it had a nondiscriminatory reason for terminating Plaintiff.
C. Pretext for Termination
Thus, the burden shifts back to Plaintiff to demonstrate that Defendant's reason for terminating Plaintiff was pretextual. Pretext may be established in one of two ways: “(1) indirectly, by showing that the employer's proffered explanation is ‘unworthy of credence' because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer.” Shelley v. Geren, 666 F.3d 599, 609 (9th Cir. 2012). Plaintiff “bears the ultimate burden of persuading the court that the stated reason for the discharge was false and that the true reason for the discharge was unlawful [race] discrimination.” Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270 (9th Cir. 1996).
Plaintiff argues that Defendant's termination of Plaintiff was pretextual based on circumstantial evidence that Defendant's real motive in terminating Plaintiff was based on his complaints about Mr. Bustard's racist and sexist conduct. Resp. Mot. Summ. J. 12-13. In particular, Plaintiff contends that this inference of pretext is evident based on (1) Defendant's failure to suspend or remove Plaintiff from the property following his altercation with Mr. Bustard, which showed that Defendant did not view Plaintiff as a threat in the workplace; (2) Defendant's failure to consider lesser discipline for Plaintiff; and (3) Defendant's failure to investigate complaints. Id.
Plaintiff fails to prove that Defendant's termination of Plaintiff was pretextual. As an initial matter, the Court is unpersuaded by Plaintiff's arguments that his termination was pretextual because Defendant did not view Plaintiff as a threat or consider lesser discipline. An employer's failure to physically remove an employee who makes threatening comments does not have any bearing on whether the employer had a valid, nondiscriminatory reason for terminating that employee for making those threats. As courts have noted, “[i]n assessing whether the employer's reasons for the action are pretextual, ‘it is not important whether they [are] objectively false.'” Sanchez v. Purina Animal Nutrition, LLC, 2015 WL 667619, at *10 (D. Or. Feb. 13, 2015) (emphasis in original) (quoting Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002)). Rather, courts “only require that an employer honestly believed its reasons for its actions, even if its reason is foolish or trivial or even baseless.” Id. Further, despite Plaintiff's contentions that Defendant should have considered lesser discipline, Plaintiff does not dispute that Defendant's workplace violence policy states that any violent conduct, including threatening words, may lead to termination.
Additionally, Plaintiff fails to demonstrate how Defendant's failure to investigate other complaints demonstrates that Defendant's reason for terminating Plaintiff was pretextual. Even if Defendant failed to follow its own policies with respect to other complaints, these actions do not support a finding that Defendant's decision to terminate Plaintiff was pretextual. Simply put, those actions are unrelated. Thus, Plaintiff has failed to prove with specific and substantial evidence that Defendant's decision to terminate Plaintiff was pretextual. And “when evidence to refute the defendant's legitimate explanation is totally lacking, summary judgment is appropriate even though [the] plaintiff may have established a minimal prima facie case.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 890-91 (9th Cir. 1994). Even assuming that Plaintiff could set forth a prima facie case for racial discrimination-which the Court concludes he cannot-Plaintiff's claim still nonetheless fails. Accordingly, summary judgment should be granted on Plaintiff's first claim for race discrimination.
II. Retaliation Claim
Plaintiff's second claim for relief is for retaliation under ORS 659A.030(1)(f), which 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.” “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).
To establish a prima facie case for retaliation, a plaintiff must show that (1) he 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 plaintiff's 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 alleges that Defendant retaliated against him for opposing alleged discrimination against minority and female employees. Compl. ¶¶ 10-12. Defendant argues that Plaintiff failed to establish a prima facie case of retaliation because Plaintiff was discharged for legitimate, non-discriminatory reasons, and no causal nexus exists between Plaintiff's alleged protected activity and Defendant's decision to terminate Plaintiff. Def.'s Mot. Summ. J. 20-27. Although Plaintiff produced evidence to prove the first two elements of a prima facie retaliation claim on summary judgment, Plaintiff fails to prove the causal link between his protected activity and termination.
As is already discussed above, Plaintiff's termination constituted an adverse employment action. Additionally, Plaintiff engaged in a protected activity. A plaintiff engages in a protected activity if the plaintiff has an objectively reasonable belief that 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))). “Asserting one's civil rights . . . is a protected activity under Title VII.” Brooks, 229 F.3d at 928 (concluding that a plaintiff's complaint about an employee's harassment is a protected activity under Title VII). Viewed in the light most favorable to Plaintiff, Plaintiff's reports about Mr. Bustard's alleged racist and sexist conduct consisted of a protected activity: Plaintiff perceived Mr. Bustard's conduct as unlawful under Title VII. Thus, Plaintiff presented sufficient evidence to allow a reasonable jury to find that he engaged in a protected activity by opposing an employment practice that he reasonably believed violated the law.
Finally, yet fatally to Plaintiff's retaliation claim, Plaintiff has not set forth sufficient evidence that creates a genuine issue whether a causal link exists between his protected activity and his adverse employment action. A plaintiff can prove causation either (1) “indirectly, by showing that the protected activity was followed closely by discriminatory treatment or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or (2) directly, through evidence of retaliatory animus directed against a plaintiff by the defendant.” Huitt, 216 F.Supp.3d at 1192 (emphasis in original).
In this case, Plaintiff has failed to produce any causal evidence, either directly or indirectly, demonstrating that Defendant discharged him in retaliation for Plaintiff's engagement in a protected activity. Plaintiff has failed to prove any evidence of direct causation demonstrating retaliation. Notably, Mr. Magana, who made the final decision to terminate Plaintiff, testified that Plaintiff's prior complaints about Mr. Bustard did not factor into Defendant's decision to discharge Plaintiff. Magana Dep. 29:16-30:14; 37:12-19. Plaintiff also testified that he did not know Mr. Magana. Cherry Dep. 175:22-176:13.
Plaintiff also failed to show any indirect causation. As noted above, he has not produced any evidence of similarly situated employees who were treated more favorably than him after threatening a supervisor with physical violence. Further, there is no temporal proximity between Plaintiff's protected activity and his termination. 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)).
Here, there is nearly a one-year gap between Plaintiff's protected activity and termination: Plaintiff reported Ms. Bustard's conduct in October 2016, and Defendant terminated Plaintiff in October 2017. Magana Decl. Ex. E, ¶ 9. Courts have routinely found a period of months between a protected activity and adverse employment action to be too far removed to establish temporal proximity that would support a finding of causation. See e.g., Huitt, 216 F.Supp.3d at 1193 (collecting cases); Redwind v. W. Union, LLC, 2016 WL 3606595, at *19 (D. Or. May 2, 2016) (finding five months insufficient); Talbot v. New Seasons Mkt., LLC, 2012 WL 6738271, at *7 n.4 (D. Or. Dec. 27, 2012) (finding two months insufficient). As such, the timing between Plaintiff's protected activity and his termination does not support a finding that his protected activity was a substantial factor in his termination.
In sum, when viewed in the light most favorable to Plaintiff, there is no genuine dispute whether a causal link exists between his protected activity and termination. Thus, summary judgment should be granted as to Plaintiff's second claim for relief.
RECOMMENDATION
Defendant's Motion for Summary Judgment, ECF 47, should be GRANTED.
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.