Opinion
CV-00-1238-ST.
December 14, 2001
FINDINGS AND RECOMMENDATIONS
INTRODUCTION
Plaintiff, Judith Jaurrieta ("Jaurrieta"), filed this action on September 8, 2000, against her former employer, Portland Public Schools ("PPS"). Jaurrieta alleges that she was subjected to a hostile work environment and terminated in retaliation for complaining about sexual harassment and discrimination by a coworker and her supervisors. Jaurrieta alleges claims against PPS for: (1) violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq ("Title VII") (First Claim); (2) violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (Second Claim); (3) violation of Oregon's unlawful employment practices statute, ORS 659.030 (Third Claim); and (4) wrongful discharge (Fourth Claim).
PPS has filed a Motion for Summary Judgment (docket #10) against all of Jaurrieta's claims and a Motion for Sanctions (docket #29). This court has jurisdiction over plaintiffs' Title VII claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiffs' state law claims under 28 U.S.C. § 1367(a). For the reasons that follow, the Motion for Sanctions (docket #29) should be granted in part and denied in part and the Motion for Summary Judgment (docket #10) should be granted.
MOTION FOR SANCTIONS
After PPS filed its Motion for Summary Judgment, Jaurrieta moved for a continuance for the purpose of deposing Dr. Mihn Tran. PPS opposed the motion for a continuance. However, on July 9, 2001, this court granted the motion for a continuance and reset argument on the motion for summary judgment (docket #25).
On July 11, 2001, the parties agreed to depose Dr. Tran on July 25, 2001. Declaration of Jeffrey D. Austin in Support of Defendant's Motion for Sanctions ("Austin Dec"), ¶ 3. Defendant's attorney then prepared for the deposition on July 23 and 24, 2001. Id, ¶ 4. However, on the morning of the deposition, he received a voice mail message left by Jaurrieta's attorney the prior evening stating that Dr. Tran would not appear without a subpoena and that Jaurrieta would not pay the cost of a subpoena. Id, ¶ 5. At oral argument, Jaurrieta's attorney explained that Jaurrieta could not afford the cost of the subpoena and witness fee and, in any event, she had received Dr. Tran's affidavit and no longer needed his deposition.
Jaurrieta was justified in seeking a continuance of the summary judgment motion in order to better prepare her response to that motion. However, she has failed to proffer any legitimate reason for failing to notify defendant's attorney sooner of the cancellation of Dr. Tran's deposition. As a result, PPS's request for costs and fees for responding to the motion for a continuance should be denied, but its request for costs and fees incurred in preparing for Dr. Tran's deposition should be granted.
MOTION FOR SUMMARY JUDGMENT
I. Legal Standard
FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party shows the absence of an issue of material fact, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id at 324. A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir), cert denied, 493 U.S. 809 (1989).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir 1987). The court must view the inferences drawn from the facts in the light most favorable to the non-moving party. Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id at 630-31. However, when the non-moving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics Inc., 818 F.2d 1466, 1470 (9th Cir 1987), cert denied, 484 U.S. 1006 (1988). The Ninth Circuit has stated, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id at 1468.
The Ninth Circuit has set a high standard for granting summary judgment in employment discrimination cases. "[W]e 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 most appropriately conducted by the fact-finder, upon a full record." Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir) (citations omitted), cert denied, 519 U.S. 927 (1996).
II. Undisputed Material Facts
Disregarding the testimony stricken in the accompanying Order granting in part and denying in part PPS's Motion to Strike (docket #27), and viewing all the remaining evidence in the light most favorable to Jaurrieta, the record reveals the following facts:
A. Jaurrieta and her Supervisors
On January 11, 1999, Jaurrieta was hired by PPS as a Hispanic Resource Specialist in the English as a Second Language/Bilingual Program ("ESL/Bilingual Program"). The offices of the ESL/Bilingual Program are in the PPS's Child Services Center ("CSC").
From January through August 1999, Dr. Tran was the administrator of the ESL/Bilingual Program. Tran Dec, ¶ 8. From October 1998 through July 1999, Carolyn Leonard ("Leonard"), the Multicultural/Multiethnic Education Coordinator and Administrator of Allied Services at PPS, was helping to co-administer the ESL/Bilingual Program along with Dr. Tran. Leonard Dec, ¶ 1; Jaurrieta Depo, pp. 23, 31. From the time Jaurrieta was hired in January 1999 through July 1999, Leonard was Jaurrieta's supervisor. Leonard Dec, ¶¶ 2, 15.
Declarations and affidavits are referred to by the last name of the declarant or affidavit and the paragraph number of the declaration or affidavit.
References to deposition testimony are to the last name of the deponent and to the page(s) indicated of the deposition transcript.
B. The Incident with Machorro and Jaurrieta's Request for an Investigation
On February 9, 1999, less than a month after Jaurrieta was hired by PPS, and during the time that Leonard was supervising her, Jaurrieta attended a meeting with two coworkers, PPS's Drop-Out/Retention Coordinator, Luis Machorro ("Machorro"), and Resource Specialist leader of the "Hispanic Team" in the ESL/Bilingual Program, Sonny Montes ("Montes"). During the meeting, a dispute arose between Jaurrieta and Machorro during which Machorro told Jaurrieta to "shut up," pointed his finger in Jaurrieta's face and said she was "out of line young lady." Jaurrieta Depo, Ex 2. Machorro also stood up, "violently" shuffled his chair around, and "with a powerful motion," threw a napkin into the wastebasket. Id.
A series of documents were marked as exhibits during Jaurrieta's depositions. For ease of reference, this court will refer to those documents by the same exhibit numbers. Copies are attached to the Declaration of Jeffrey D. Austin in Support of Defendant's Motions for Summary Judgment (docket #17).
Later that same day Jaurrieta discussed the Machorro incident with her acting supervisor, Leonard. Jaurrieta Depo, p. 30; Leonard Dec, ¶ 4. Leonard told Jaurrieta that the conflict needed resolved and invited Jaurrieta to provide her with a memorandum documenting the incident. Leonard Dec, ¶ 4.
Two days later, on February 11, 1999, Jaurrieta sent a letter to Leonard giving her account of the February 9, 1999 incident and asking that the matter be addressed so that the situation would not reoccur. Jaurrieta Depo, Ex 2. Leonard referred the complaint to Larry Gant ("Gant") of PPS's Human Resources Department for investigation and resolution. Gant Dec, ¶ 2; Leonard Dec, ¶ 6.
On March 19, 1999, having received no response to her letter, Jaurrieta sent a memorandum to Gant ("March 19, 1999 Machorro Grievance") stating that she had conducted her own investigation of Machorro's behavior. Jaurrieta Depo, Ex 3. The March 19, 1999 Machorro Grievance states that Jaurrieta had found "many other women who have been victimized by this man." Id. It also states that "there was one other area most of us shared and that was having felt uncomfortable at [Machorro's] unwelcome touch." Id. Finally, the March 19, 1999 Machorro Grievance states that Jaurrieta had discovered that Machorro had "attacked" many other women "to the point of bringing them to tears," and that she and the women she had spoken with "sense that [Machorro's behavior] is a condescending way of expressing his power or control over us." Id.
Despite these characterizations of Machorro's behavior in the March 19, 1999 Machorro Grievance, Jaurrieta does not claim or allege that Machorro engaged in any inappropriate touching, sexual advances, requests for sexual favors, or any other verbal or physical conduct of a sexual nature. Defendant's Concise Statement of Material Facts, ¶ 2, accepted by Plaintiff's Concise Statement of Material Facts, ¶ 1.
Gant investigated the March 19, 1999 Machorro Grievance, interviewing at least nine employees in PPS's ESL/Bilingual Department, including Machorro and Jaurrieta. Gant Dec, ¶ 3. However, Gant's investigation was superficial and biased in favor of Machorro due to Gant's friendship with Machorro. Tran Dec, ¶ 4; Campos Dec, ¶ 5. On June 18, 1999, Gant informed Jaurrieta that he had completed his investigation and found no evidence of gender discrimination or sexual harassment, but found Machorro's February 9, 1999 conduct inappropriate. Gant Dec, ¶ 4. On June 21, 1999, Gant sent Jaurrieta a letter stating that he had found Machorro's actions inappropriate. Jaurrieta Depo, Ex 4. Gant also informed Machorro of the results of the investigation and provided Machorro with a list of specific behavioral expectations. Gant Dec, ¶ 4.
C. The Hiring of Flores and Subsequent Interactions Between Flores and Jaurrieta
The list of behavioral expectations provided to Machorro does not appear in the record, but apparently included an instruction to stay away from Jaurrieta. Jaurrieta Depo, pp. 124-25, 127.
On April 1, 1999, after the March 19, 1999 Machorro Grievance, but before Gant's June 21, 1999 written response, Merced Flores ("Flores") was hired as the Chief of Staff and replaced Dr. Tran as the Director of the ESL/Bilingual Program. Some time thereafter, Jaurrieta heard rumors that Flores had a reputation for soliciting sexual favors from female employees. Campos Dec, ¶ 9; Jaurrieta Depo, pp. 76-80. Based on that information, Jaurrieta became afraid of Flores and believed his conduct toward her signified an attempt to initiate a romantic relationship or as a prelude to soliciting sexual favors from her.
Although Dr. Tran remained employed with PPS through June 30, 2001, when he retired (Tran Dec, ¶ 1), Flores became the acting Director of the ESL/Bilingual Program in April 1999. Flores Dec, ¶ 1. On September 16, 1999, Dr. Tran was placed on administrative leave, assigned to his home, and instructed not to contact the ESL/Bilingual Program staff and not to be on the premises of PPS. Tran Dec, ¶ 1; Betten Dec, ¶ 2.
The record is unclear as to when she heard these rumors. However, because the record must be viewed in Jaurrieta's favor, this court will assume that Jaurrieta made this discovery some time prior to the April 20, 1999 meeting with Flores.
On April 20, 1999, Jaurrieta attended a meeting with Petra Campos ("Campos"), Appelonia Ponse ("Ponse"), and Flores. Jaurrieta Depo, Ex 9. Flores called this meeting in order to get to know the staff and to "identify issues and problems within the program" and Campos invited Jaurrieta to attend. Flores Dec, ¶ 2; Jaurrieta Depo, p. 62. Following the meeting, Flores asked Campos and Ponse to leave and asked Jaurrieta to stay and talk to him. Jaurrieta Depo, Ex 9. Flores then asked Jaurrieta about the Machorro incident, expressed disbelief, and wondered why Machorro had not yet been transferred out of the ESL/Bilingual Program. Id. He told Jaurrieta he would find out what was holding up the transfer and gave Jaurrieta his cell phone number so that she could contact him and find out the status of the Machorro incident. Id; Jaurrieta Depo, p. 75.
Other evidence in the record indicates that this meeting took place on April 22, 1999, not April 20, 1999. Flores Dec, ¶ 2. Because all facts must be construed in favor of Jaurrieta, this court will use the date she cited in the "Sexual Harassment Complaint" she sent to Gant on April 3, 2000. Jaurrieta Depo, Ex 9.
Flores states that he simply asked Jaurrieta to "stay behind in order to talk to her regarding the conflict [with Machorro] and to offer to help attempt to resolve the conflict." Flores Dec, ¶ 3. Flores denies that he gave Jaurrieta his cell phone number in an attempt to establish a romantic relationship with her, and instead asserts that he regularly gave his cell phone number out and that he gave it to Jaurrieta "so that if she needed help with her conflict with Machorro, she could contact me." Id, ¶ 4. Because the record must be viewed in her favor, this court will assume that Flores gave Jaurrieta his phone number in an effort to become romantically involved with Jaurrieta.
A couple weeks later, on May 7, 1999, Jaurrieta called Flores' cell phone number but got no answer. Gant Dec, ¶ 7. Later that same day, after seeing Jaurrieta's home phone number on his caller identification, Flores called Jaurrieta back at her home and told her he had not heard anything from Leonard regarding the Machorro situation. Id; Flores Dec, ¶ 6. Flores then suggested that he and Jaurrieta could "get together for lunch sometime" so that Jaurrieta could "tell [him] more about what happens at the CSC." Jaurrieta Depo, pp. 88-89 and Ex 9.
Besides this private meeting and call to her home, Flores also asked Jaurrieta out on a date on at least one occasion, asked her to meet him alone to discuss work related matters, on one occasion tried to have Jaurrieta instead of Campos assigned to him as a translator, one time asked a secretary where Jaurrieta's desk was located in the ESL/Bilingual Program room, and at one meeting offered to pour Jaurrieta some coffee when her cup was full, then "oggled" her and tried to "position himself near her." Campos Dec, ¶ 9; Tran Dec, ¶ 7; Jaurrieta Depo, pp. 101-02 and Ex 9.
D. Work Performance Issues Raised by Leonard
Betweeen January and July 1999, Leonard identified and discussed with Juarrieta a number of work performance issues, including a significant number of absences due to illness or other reasons, working at home when PPS did not allow flex time, missing meetings, inconsistencies in or failure to complete milage logs, activity logs or other required paperwork, and the failure to sign in and out at the CSC or at the schools where she worked. Leonard Dec, ¶¶ 10-16; Jaurrieta Depo, pp. 205-06, 217-18. Despite her identification of these performance issues, Leonard did not submit or place in Jaurrieta's personnel file a formal evaluation identifying or criticizing her for these issues, and was no longer Jaurrieta's supervisor after July 1999 when Teresa Rosalez ("Rosalez") was hired. Leonard Dec, ¶¶ 7, 15.
E. Rosalez's Supervision and Jaurrieta's BOLI Complaint
In July 1999, Rosalez was hired as the Assistant Director of the ESL/Bilingual Program and assumed direct supervisory responsibility over Jaurrieta and the other Resource Specialists. Rosalez Dec, ¶ 1. After Rosalez was hired as the Assistant Director of the ESL/Bilingual Program, Leonard no longer supervised Jaurrieta, and Flores no longer had direct supervisory responsibility over Jaurrieta. Soon after Rosalez became the Assistant Director of the ELS/Bilingual Program, she noticed job performance problems with Jaurrieta. Rosalez met with Jaurrieta at least once a month between December 1999 and May 2000 to discuss Jaurrieta's work performance. Rosalez Dec, ¶¶ 4-7 and Exs 3-6. Several of the work performance issues raised by Leonard, and later raised by Rosalez in support of Jaurrieta's termination, were specious and pretextual, including the allegations that she had inaccurate mileage records, kept poor records, and failed to obtain approval of schedule and activity changes. Campos Dec, ¶¶ 7-8.
Jaurrieta denies the bulk of the facts set forth in paragraphs 10-12 and 14-16 of Defendant's Concise Statement of Material Facts in Support of Motions for Summary Judgment, based on the facts set forth in the Tran Declaration, paragraphs 5, 6, and 8, and the Campos Declaration, paragraphs 6-8. However, as discussed in the accompanying Order, paragraphs 5 and 6 of the Tran Declaration, and paragraph 6 of the Campos Declaration are stricken and will not be considered. The facts herein are distilled from the most favorable reading of the portions of the Tran and Campos Declarations that have not been stricken.
Campos attested that "flex time" was unofficially given to the specialists because the nature of their job required them to sometimes work late evening hours. Campos Dec, ¶ 8. The specialists would then be "compensated with time off." Id. This testimony seems to confuse "flex time," which typically describes an ongoing work schedule with flexible hours (as opposed to the standard eight hour a day, five day a week work week), and "compensatory time" or "comp time," which is time off from work to compensate for unusually long work hours during a period of unusually high work loads. This court accepts Campos' testimony that specialists were allowed to have "comp time," or hours off to compensate them for days they worked extra hours. However, Campos went on administrative leave on October 29, 1999 (Betten Dec, ¶ 5), and therefore is not competent to testify about the polices regarding the ESL/Bilingual program ("unofficial" or otherwise) after that date. Moreover, by January 28, 2000, Jaurrieta was notified by Rosalez that she needed "[p]re-approval for schedule changes" and by February 4, 2000, Jaurrieta was expressly told that "flex time is not part of the ESL/Bilingual program [and that] changes in [her] schedule [had] to be approved by [Rosalez] in advance." Jaurrieta Depo, Exs 3 and 4. Thus, even accepting Campos' testimony that "flex time" and "comp time" were "unofficially" allowed through October 1999, and assuming that they continued to be allowed for some period of time after that, there is no evidence to support the conclusion that either "flex time" or "comp time" were still allowed after January 2000.
Because of the performance problems she observed from July through December 1999, Rosalez prepared a "Memorandum of Expectation" which she presented to and discussed with Jaurrieta on December 17, 1999. Rosalez Dec, ¶ 3. That memorandum directs Jaurrieta, at the peril of "further disciplinary action" to become a "contributing member of the team," meet with the principals of each school where Jaurrieta works, improve her attendance, attend scheduled meetings, sign in and out at her designated school sites, focus her activities at her assigned schools, maintain an activity log and submit it monthly, provide copies of parent meeting agendas one week prior to scheduled meeting dates, and schedule weekly student support and monthly parent meetings. Rosalez Dec, Ex 1.
According to Rosalez, Jaurrieta's performance did not improve following the December 17, 1999 meeting. Rosalez Dec, ¶ 4. Rosalez again met with Jaurrieta on January 28, 2000, to discuss her continuing performance problems. Id. Jaurrieta's attorneys accompanied her to that meeting. Rosalez Dec, Exs 3 and 4, p. 2. Although copies are not in the record, Jaurrieta apparently sent two letters to Rosalez on January 31, 2000, which presumably responded further to the concerns raised by Rosalez. Rosales Dec, Ex 4, p. 1.
F. The BOLI Complaint Regarding Machorro/Leonard
On February 3, 2000, within a week of the January 28, 2000 meeting with Rosalez, Jaurrieta filed a complaint with the Oregon Bureau of Labor and Industries ("BOLI") ("February 3, 2000 BOLI Complaint"). Jaurrieta Depo, Ex 5. In the February 3, 2000 BOLI Complaint, Jaurrieta alleged that PPS had retaliated against her for submitting her March 19, 1999 Machorro Grievance. Specifically, she alleged that beginning April 8, 1999, Leonard "began a campaign of harassment regarding [Jaurrieta's] work attendance and performance" and that Leonard had questioned Jaurrieta regarding her milage, activity log, and attendance record, and had threatened her with an unfavorable recommendation. Id at 2. Jaurrieta also alleged that Leonard had threatened her with an unfavorable recommendation for a "6 month probationary period" that did not apply to Jaurrieta. Id. The BOLI complaint states that "Leonard singled [Jaurrieta] out to harass" but does not mention any harassment by Rosalez. Id.
On May 10, 2000, BOLI dismissed Jaurrieta's February 3, 2000 BOLI Complaint (regarding Machorro) based on insufficient evidence to continue the investigation. Jaurrieta Depo, Ex 7.
G. Continued Meetings and Communications With Rosalez
On February 4, 2000, Rosalez sent Jaurrieta a letter summarizing their January 28, 2000 meeting and notifying Jaurrieta that she "must immediately make corrections" in a number of areas, including restricting her activities at her assigned schools, getting advance approval for schedule changes because "flex time is not a part of the ESL/Bilingual program," submitting all reports on Fridays by 4:00 p.m., and working more positively with other Resource Specialists. Rosalez Dec, Ex 4. While Rosalez acknowleded that some of PPS's "requirements, including a fixed schedule, specific meeting times, and required paperwork" were sometimes "rigid and frustrating," she nonetheless told Jaurrieta that they are "important requirements" and she "must adhere to them if [she was] going to be successful [at PPS]." Id at 2. The letter concludes by stating that Rosalez will reevaluate the situation in 30 days and warns that if Rosalez did not see significant improvement by that time, she would consider whether to continue Jaurrieta's employment. Id.
On February 24, 2000, Rosalez again met with Jaurrieta and discussed work performance issues. Rosalez Dec, ¶ 6 and Ex 5. Rosalez's summary of that meeting indicates that the issues of work schedule and activity logs were again discussed. Id, Ex 5.
On March 29, 2000, Rosales sent Jaurrieta a memorandum listing six areas of "Performance Concerns" and setting a meeting with Jaurrieta for April 5, 2000, to discuss those concerns. Rosalez Dec, Ex 6. The list of concerns included the: (1) low participation by Hispanic parents and students at Jaurrieta's assigned schools; (2) lack of documentation of Jaurrieta's activities; (3) inconsistencies in Jaurrieta's documentation; (4) use of work hours for non-work activities; (5) failure to communicate accurately with Rosalez, Montes, and school principals about Jaurrieta's schedule and activities with parents; and (6) spending assigned time at one school to work on issues involving a different school. Id. Rosalez further stated that if Jaurrieta did not "provide information to adequately explain these continuing performance deficiencies, [she would] recommend that [Jaurrieta's] employment be terminated." Id at 4.
H. The April 3, 2000 Flores Grievance
On April 3, 2000, two days before the meeting scheduled by Rosalez in the March 29, 2000 memorandum, Jaurrieta sent Gant a "Sexual Harassment Complaint" against Flores. Jaurrieta Depo, Ex 9 ("April 3, 2000 Flores Grievance"). Jaurrieta also sent a copy of the April 3, 2000 Flores Grievance to PPS's then-Superintendent, Dr. Benjamin Canada. In the April 3, 2000 Flores Grievance, Jaurrieta recounted Flores' behavior approximately one year earlier during the April 20, 1999 meeting, and the May 7, 1999 call to her home. Id. Referencing the May 7, 1999 telephone conversation, she noted that she did not feel it was appropriate to go out to lunch with Flores because she had heard he was having extramarital affairs, and that she believed his request to go to lunch was an attempt by Flores to begin meeting with her on a regular basis. Id. Jaurrieta also stated that she felt that the "harassment against [her by Machorro] ha[d] been compounded" by Flores' conduct and that she had been "harassed through intimidation, isolation, ostracism, and [her] work being unduly scrutinized by . . . Rosalez and . . . Montes with intention to terminate [her]." Id.
I. The April 5, 2000 Meeting, Subsequent Written Reprimand, and Termination
On April 5, 2000, Jaurrieta and her attorneys attended the meeting scheduled by Rosalez and discussed the performance concerns raised in the March 29, 2000 memorandum. Rosalez Dec, ¶ 7 and Ex 7. Jaurrieta apparently also sent Rosalez a letter dated April 26, 2000, discussing those concerns. Rosalez Dec, Ex 7, p. 1.
On May 17, 2000, after concluding that the information provided by Jaurrieta did not resolve all of her concerns, Rosalez sent Jaurrieta a written reprimand "for [her] continued failure to comply with the [December 17, 1999] memorandum of expectation." Id at 4. The May 17, 2000 memorandum states that Rosalez continued to have the following concerns: (1) low participation by Hispanic parents and students at Jaurrieta's schools; (2) continued lack of documentation of Jaurrieta's activities; (3) inconsistencies in Jaurrieta's documentation; (4) continued use of work hours for activities that are not part of Jaurrieta's job duties; (5) failure to communicate accurately; and (6) use of time scheduled at one school on issues involving another school. Id. The final paragraph of the memorandum states:
This letter is a written reprimand for your continued failure to comply with the memorandum of expectation. Attached to this letter is a copy of the December 17, 1999 Memorandum of Expectations. I expect you to come into compliance immediately. In the future, the documentation you submit of your schedule and activities are to be accurate. Deviations from your scheduled activities are to be cleared with me in advance. Continued failure to comply with the Memorandum of Expectations will result in a recommendation for termination of your employment.
Id at 4.
On May 24, 2000, Larry Betten, Director of Personnel for PPS, notified Jaurrieta that PPS did not intend to offer Jaurrieta another contract for the next school year and that her last day of employment would be June 26, 2000. Rosalez Dec, ¶ 10 and Ex 8.
J. Jaurrieta's Second BOLI Complaint
On June 6, 2000, Jaurrieta filed a second BOLI complaint ("June 6, 2000 BOLI Complaint"). Jaurrieta Depo, Ex 11. In the June 6, 2000 BOLI Complaint, Jaurrieta alleged that PPS had retaliated against her for filing the April 3, 2000 Flores Grievance. Specifically, the June 6, 2000 BOLI Complaint alleges that following the April 3, 2000 Flores Grievance, Flores had "used others to isolate [her], create a hostile work environment, and give [her] negative evaluations of [her] work performance." Id.
On June 30, 2000, Gant sent Jaurrieta a letter stating that PPS had completed its investigation of the April 3, 2000 Flores Grievance and found no evidence to substantiate Jaurrieta's sexual harassment allegations. Jaurrieta Depo, Ex 10.
III. Hostile Work Environment (Title VII and ORS Chapter 659 — First and Third Claims)
A. Legal Standards
Jaurrieta's discrimination claims under Title VII and ORS Chapter 659 are premised upon a hostile work environment theory. A hostile environment exists under both Title VII and ORS Chapter 659 when an employee can show (1) that he or she was subjected to verbal or physical conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an intimidating, hostile, offensive, or abusive working environment. Pavon v. Swift Transp. Co., Inc., 192 F.3d 902, 908 (9th Cir 1999), citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Fred Meyer, Inc. v. Bureau of Labor Indus., 152 Or. App. 302, 307, 954 P.2d 804, 807 (1998); Mains v. II Morrow, Inc., 128 Or. App. 625, 635, 877 P.2d 88, 93 (1994). In addition, the plaintiff must show that the harassment was "because of sex." Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir 2001) (citations omitted). Employers are liable for failing to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known. EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th Cir 1989); Harris v. Pameco Corp., 170 Or. App. 164, 176, 12 P.3d 524, 532 (2000) ("Pameco Corp.").
Federal law regarding Title VII is somewhat more developed than Oregon case law regarding ORS Chapter 659. However, Oregon courts have generally considered and adopted federal case law regarding Title VII and applied those decisions to actions filed under ORS Chapter 659. Montgomery v. J.R. Simplot Co., 916 F. Supp. 1033, 1038 (D Or 1994); Harris v. Pameco Corp., 170 Or. App. 164, 176, 12 P.3d 524, 532 (2000). Thus, where an Oregon case provides a different rule, or more specific guidance on any of Jaurrieta's state law claims, the case is cited. Otherwise, this court will rely on the Title VII cases to interpret and analyze Jaurrieta's claims under ORS Chapter 659.
To prove a hostile work environment claim not based on sexual harassment, a plaintiff must show that the workplace was "permeated with `discriminatory intimidation, ridicule, and insult. . . .'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Whether a work environment is sufficiently hostile or abusive depends upon "`all the circumstances,' including the `frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Nichols, 256 F.3d at 872, quoting Harris, 510 U.S. at 23; see also Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463 (9th Cir 1994) (sexual or gender-based conduct violates Title VII if "such hostile conduct pollutes the victim's workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position.") and Fred Meyer, Inc. v. BOLI, 152 Or. App. 302, 309, 954 P.2d 804, 808 (1998) (applying objective "totality of the circumstances" standard to hostile work environment claims under ORS Chapter 659).
In determining whether the conduct was sufficiently severe or pervasive, Jaurrieta must prove both that she subjectively felt the conduct was abusive and that a reasonable person with the same fundamental characteristics would feel that the conduct was abusive. Harris, 510 U.S. at 21-22; Steiner, 25 F.3d at 1463. Oregon also applies an objective standard in evaluating claims of hostile work environment under ORS Chapter 659: "In determining whether conduct has created an `intimidating, hostile, or offensive working environment,' we apply an objective standard, that is, we determine whether a reasonable person would arrive at that conclusion." Fred Meyer, 152 Or App at 307, 954 P.2d at 807, quoting Meltebeke v. BOLI, 322 Or. 132, 142, 903 P.2d 351, 357 (1995).
Title VII "forbids only behavior so objectively offensive as to alter the `conditions' of the victim's employment." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The objectively reasonable person standard is measured by what a reasonable woman would have considered abusive. Ellison v. Brady, 924 F.2d 872, 879 (9th Cir 1991). The required level of severity "varies inversely with the pervasiveness or frequency of the conduct." Id at 878. "`[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.'" Nichols, 256 F.3d at 872, quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). "Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . ., and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive." Oncale, 523 U.S. at 82.
These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a "general civility code." Properly applied, they will filter out complaints attacking "the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing."
Faragher, 524 U.S. at 787-88.
B. Analysis
PPS does not appear to dispute that Jaurrieta was subjected to some unwelcome conduct. Moreover, as discussed above (footnote 9, supra), this court ascribes to Flores' conduct the "romantic" or "sexual" overtones suggested by Jaurrieta. PPS also does not appear to dispute that management-level employees were aware of the incidents about which Jaurrieta complained. However, PPS argues that the conduct alleged by Jaurrieta simply was not sufficiently severe or pervasive to support her hostile work environment claim. A searching review of Ninth Circuit and Oregon law reveals that Jaurrieta's allegations do fall short of the type of allegations necessary to prevail on a hostile work environment claim.
Neither the Title VII nor the Oregon cases discussing a hostile work environment clearly draw a line between conduct which is actionable and conduct which is not actionable. Some conduct can "make the workplace hellish for women" and clearly falls within the purview of Title VII. Baskersville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir 1995). Such conduct includes "sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; and [unwelcome distribution or display of] pornographic pictures." Id (citations omitted); see also Mains, 128 Or App at 635, 877 P.2d at 93 (allegations that plaintiff's supervisor called her a "sex-atary," a "bitch," and a "wench," and told her she was "just another worthless woman," often said "lick my balls," and said that she must be catching AIDS from her boyfriend, coupled with allegations that he shoved the plaintiff, grabbed her ankles, and blocked her from leaving the parking lot, encouraging others to do the same were sufficient); Fred Meyer, 152 Or App at 304-05, 954 P.2d at 805-06 (numerous daily comments by a co-worker about the physical characteristics of the plaintiff and other women, comments about plaintiff's breasts, and frequent touching of the plaintiff was sufficient).
At the other end of the spectrum lies conduct which, although unwelcome and unpleasant, is not sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Such conduct, including the "occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers," will not support liability under Title VII. Baskersville, 50 F.3d at 430; see also Brooks v. City of San Mateo, 229 F.3d 917, 926-27 (9th Cir 2000) (citing cases where allegations were insufficient); Candelore v. Clark Co. Sanitation Dist., 975 F.2d 588, 590 (9th Cir 1992) (isolated incidents of "sexual horseplay" insufficient to support hostile work environment claim); Jordan v. Clark, 847 F.2d 1368, 1375 (9th Cir 1988), cert denied, 488 U.S. 1006 (1989) (abusive work environment not created where men and women told "off-color" jokes at work).
Even assuming the truth of all of Jaurrieta's allegations, they are simply insufficient to state a claim for discrimination based on a hostile work environment theory. Jaurrieta alleges one specific instance of harassment by Mochorro on February 9, 1999, when he ordered her to "shut up," told her she was "out of line young lady," violently shuffled a chair about, and "with a powerful motion," threw a napkin into a trash can. Jaurrieta did not consider the incident to be sexual harassment until after she conducted her own investigation of Machorro and discovered that he had displayed similar domineering behavior toward other women. Jaurrieta Depo, pp. 197-98. She then filed the grievance with Gant. The only other conduct by Machorro is that, following PPS's apparent instruction that he stay away from Jaurrieta, he nonetheless came into the ESL/Bilingual Program room and talked to other people while Jaurrieta was there.
The March 19, 1999 Machorro Grievance says that Jaurrieta and the women she had spoken with "felt uncomfortable at his unwelcome touch" and the February 3, 2000 Machorro Complaint states that Jaurrieta was "subjected to his unwanted touch." Jaurrieta Depo, Exs 3 and 5, p. 2. However, Jaurrieta has proffered nothing to explain what she meant by those statements and nothing else in the record indicated that Machorro "touched" anyone, much less that his "touch" was sexual in nature or otherwise inappropriate. At worst, Jaurrieta has presented one document that she authored indicating that she learned that Machorro had a history of bullying and intimidating his female coworkers "to the point of bringing them to tears" and that previous complaints by those women were met with the response that there was nothing "they could do but to stay away from him." Id, Ex 3. Even assuming that these allegations would be sufficient to survive a motion for summary judgment, Jaurrieta has failed to submit any evidence supporting the allegations. The record contains no affidavit or deposition testimony from Jaurrieta or from any of these other alleged female coworkers. Nor is there any documentation or testimonial evidence of previous complaints to PPS about Machorro.
Furthermore, Jaurrieta accepts as true PPS's statement that she "does not claim or allege that Machorro engaged in any inappropriate touching, sexual advances, requests for sexual favors, or any other verbal or physical conduct of a sexual nature." Plaintiff's Concise Statement of Material Facts (docket #32), ¶ 1. The only comment by Macharro which even arguably references gender is his statement that Jaurrieta was "out of line young lady." While a comment referring to Jaurrieta as a "young lady" certainly references Jaurrieta's gender, it is not a comment with sexual overtones. Instead, at worst it is categorized as a condescending phrase designed to diminish the value of Jaurrieta's input in the eyes of others who might be listening (namely Montes). This single comment, made one time by a person not in a supervisory role to Jaurrieta, is simply insufficient to support a claim for a hostile work environment, particularly in light of PPS's subsequent investigation, declaration of the behavior as inappropriate, and apparent instruction that Macharro stay away from Jaurrieta.
The evidence regarding Flores is equally as oblique. The April 3, 2000 Flores Grievance states that Jaurrieta had been made fun of as a result of Flores' "sexual and romantic overtures" and that she had rejected his "sexual advances." Jaurrieta Depo, Ex 9. However, the record is devoid of any evidence that Flores ever touched Jaurrieta at all, much less inappropriately, and the only "sexual advances" or "romantic overtures" he made were asking Jaurrieta to meet with him alone to discuss work matters and once asking her out on a date. Jaurrieta attributes a "sexual" or "romantic" character to that conduct based upon "rumors" she heard from Campos and another ex-PPS employee that Flores was a womanizer with a reputation for soliciting sexual favors from his subordinates. Id at 77-79. Other than that behavior, Jaurrieta claims that Flores once "ogled" her at a meeting, once asked that she be assigned to him as a translator in place of Campos, once stopped by the ESL/Bilingual room at CSC and inquired where she sat, and once attended a meeting that Jaurrieta also attended and (a) offered to pour her some coffee when her coffee cup was full; and (b) moved from the seat where he was sitting to a seat three chairs behind Jaurrieta. Id at 101-02 and Ex 9; Campos Dec, ¶ 9.
As a matter of law, these actions simply are insufficiently severe or pervasive to have altered Jaurrieta's working conditions and establish a claim for discrimination based on a hostile work environment. See, e.g. Burnett v. Tyco Corp., 203 F.3d 980 (6th Cir 2000) (single battery and two offensive remarks in six months is not severe or pervasive); Weiss v. Coca Cola Bottling Co., 990 F.2d 333, 337 (7th Cir 1993) (supervisor asked plaintiff out on dates, called her a "dumb blonde," placed his hand on her shoulder several times, placed "I love you" signs in her work area, and attempted to kiss her on more than one occasion was not pervasive); Chamberlin v. 101 Realty, 915 F.2d 777, 782-83 (1st Cir 1990) (five mild "sexual advances" by a supervisor, without more, are insufficient); Keenan v. Allan, 889 F. Supp. 1320, 1375 (E.D. Wash 1995), aff'd 91 F.3d 1275 (9th Cir 1996) (infrequent comments that did not include profanity, threats, sexual references, or body part descriptions cannot make pervasive environment of sexual hostility or abuse).
As discussed below in more detail, Jaurrieta also claims that Leonard and Rosalez unfairly criticized her work and set her up for termination, and that some of her coworkers called her a troublemaker, told others not to work with her, tried to prevent her from participating in meetings by raising their voices at meetings, and made condescending remarks about her work performance. However, none of this conduct has any sexual overtones.
In sum, the undisputed facts reveal no discriminatory conduct sufficiently severe or pervasive to have altered the conditions of Jaurrieta's employment to create an intimidating, hostile, offensive, or abusive working environment. Several incidents, the bulk of which have no relationship to sex, over a period of nearly a year and a half provide insufficient evidence upon which a rational trier of fact can reasonably find a hostile work environment under either Title VII or Oregon law.
IV. Retaliation
Jaurrieta also alleges that PPS terminated her in retaliation for submitting the April 3, 2000 Flores Grievance. Complaint, ¶ 13. She brings retaliation claims under both Title VII and ORS Chapter 659.
Although the Third Claim of the Complaint does not expressly allege retaliation, it incorporates paragraph 13 of the First Claim which alleges retaliation in violation of Title VII. Complaint, ¶ 21 (realleging paragraphs 1-16).
A. Legal Standard
It is unlawful to retaliate against an employee because she has taken action to oppose discriminatory employment practices. 42 U.S.C. § 2000e-3(a); ORS 659.030(1)(f). To establish a prima facie case of discriminatory retaliation, Jaurrieta must show that: (1) she engaged in a protected activity; (2) she was subjected to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action. Morgan v. Nat'l RR Passenger Corp., 232 F.2d 1008, 1017 (9th Cir 2000), citing Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir 1987); Pameco Corp., 170 Or App at 178-79, 12 P.3d at 533.
B. Prima Facie Case of Retaliation
1. Protected Activity
There does not appear to be any dispute that the April 3, 2000 Flores Grievance that Jaurrieta sent to Gant and Dr. Canada constitutes protected activity. Nor do the parties appear to dispute that by complaining about sexual harassment, Jaurrieta was engaged in an activity that she in good faith believed was protected by Title VII and ORS Chapter 659. This satisfies the first part of the prima facie case.
2. Adverse Employment Action
The second part of the prima facie case requires Jaurrieta to show that she was subjected to an adverse employment action. The Ninth Circuit has made clear that "only non-trivial employment actions that would deter reasonable employees from complaining about Title VII violations will constitute actionable retaliation." Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir 2000), citing Ray v. Henderson, 217 F.2d 1234, 1243 (9th Cir 2000). Examples of sufficiently "adverse" employment actions include termination, dissemination of a negative employment reference, issuance of an undeserved negative performance review, and refusal to consider for promotion. Id (footnote and citations omitted). In contrast, "declining to hold a job open for an employee and badmouthing an employee outside the job reference context do not constitute adverse employment action." Id at 928-29 (footnote and citations omitted). Similarly, "ostracism suffered at the hands of coworkers cannot constitute an adverse employment action." Id at 929, citing Strother v. Southern Cal. Permanente Med. Group, 79 F.3d 859, 869 (9th Cir 1996). PPS has not cited and this court has not found any Oregon cases discussing what constitutes a sufficiently adverse employment action for purposes of ORS Chapter 659, but Oregon courts generally find Title VII cases instructive, and have cited the same standards applicable to Title VII retaliation claims. See note 12, supra.
Jaurrieta alleges two distinct types of retaliatory actions by PPS employees. First, she alleges that her supervisors, Leonard and Rosalez, criticized her work performance and eventually terminated her. She also alleges that other employees took various other actions she considers retaliatory.
It is clear that the work criticisms, written reprimand, and eventual termination of Jaurrieta are sufficiently "adverse" to satisfy the first prong of Jaurrieta's prima facie case of retaliation. However, it is equally clear that the host of other actions which Jaurrieta alleges were retaliatory are not sufficiently "adverse" to provide a foundation on which to base a retaliation claim.
A searching review of the record reveals that, in addition to the work criticisms and termination by Leonard and Rosalez, Jaurrieta alleges the following additional retaliatory actions: (1) Machorro continued to come into the ESL/Bilingual Program room and talk with the secretary or other Resource Specialists even though PPS had instructed him not to be around Jaurrieta (Jaurrieta Depo, pp. 124-25, 129); (2) Maxfield and Montes told agencies or organizations with whom Jaurrieta worked that she was a "troublemaker" (id at 117-18, 133-34); (3) Montes contacted people and told them to be careful with Jaurrieta or not to work with Jaurrieta because she had litigation pending against PPS (id at 112-13, 115-17) and tried to get her to shut up during meetings by raising his tone of voice toward her or discounting ideas she suggested, embarrassed her with condescending remarks and made insinuations about her performance in front of her coworkers (id at 113, 118-20); (4) Leonard started following Jaurrieta, coming to the schools where she worked, sitting across from her doing paperwork (id at 135, 206), coming into the ESL/Program room and asking for Montes when Leonard no longer had any business with the ESL/Bilingual Program, and purposely greeting Jaurrieta when Jaurrieta was trying to avoid contact with her (id at 135-37); and (5) Rosalez sent Jaurrieta unnecessary messages on her pager and voice mail and sent faxes to Jaurrieta at the schools where Jaurrieta worked regarding her failure to submit activity logs (id at 172-74). While these actions may have made Jaurrieta's work environment unpleasant, or may have made Jaurrieta feel ostracized, they are simply not the type of actions that will support the first prong of the prima facie case of a retaliation claim. These actions are simply not "adverse employment actions." Brooks, 229 F.3d at 928-29.
Jaurrieta testified that she thought that some of this behavior was already taking place before she submitted her grievance against Flores, but that the behavior intensified following the complaint. Jaurrieta Depo, pp. 123-24. Again, because the record must be viewed in Jaurrieta's favor, this court will assume that all of the identified acts of retaliation took place after April 3, 2000.
Thus, Jaurrieta may only rely on the work criticisms, written reprimand, and eventual termination by Leonard and Rosalez to support her prima facie case. However, as discussed below, Jaurrieta has failed to show the required causal link between these acts and the filing of her April 3, 2000 Flores Grievance.
3. Causal Link Between the Complaint and the Adverse Action
The third element of a prima facie case of retaliation is a causal link between the protected activity and the adverse employment action. To show the requisite causal link between her protected activity (the April 3, 2000 Flores Grievance) and the adverse actions (the work performance criticisms and termination), Jaurrieta must "present evidence to raise the inference that her protected activity was the likely reason for the adverse action." Cohen v. Fred Meyer, Inc., 868 F.2d 793, 796 (9th Cir 1982). In the Ninth Circuit, "[c]ausation sufficient to establish a prima facie case of unlawful retaliation may be inferred from the proximity in time between the protected action and the allegedly retaliatory discharge." Miller v. Fairchild Indus., Inc. 797 F.2d 727, 731 (9th Cir 1986), aff'd in part rev'd in part on other grounds, 885 F.2d 498 (1989) (en banc) (citations omitted). However, where an employer has "already decided upon a course of action adverse to the plaintiff prior to learning of the plaintiff's protected activity," there is no basis to infer retaliatory motive. Id at n1, citing Cohen, 686 F.2d at 797. Moreover, where an adverse action follows closely on the heels of protected activity, "an inference of retaliation is . . . not compelled where other evidence provides a reasonable basis for inferring that adverse action was not retaliatory." Knickerbocker v. City of Stockton, 81 F.3d 907, 912 (9th Cir 1996), citing Burrus v. United Tel. Co. of Kansas, 683 F.2d 339, 343 (10th Cir), cert denied, 459 U.S. 1071 (1982).
Oregon uses a "substantial factor" test to determine whether plaintiff's protected activities were the cause of defendant's adverse actions." Seitz v. Albina Human Res. Ctr., 100 Or. App. 665, 674, 788 P.2d 1004, 1010 (1990), citing Holien v. Sears Roebuck Co., 298 Or. 76, 90 n5, 689 P.2d 1292, 1299-1300 n5 (1984). "[T]o be a substantial factor, the employer's wrongful purpose must have been `a factor that made a difference'" in the decision to take the adverse action. Estes v. Lewis and Clark College, 152 Or. App. 372, 381, 954 P.2d 792, 796, rev denied, 327 Or. 583, 971 P.2d 411 (1998), quoting Nelson v. Emerald People's Util. Dist., 116 Or. App. 366, 373, 840 P.2d 1384, 1390 (1992), aff'd in part, rev'd in part, 318 Or. 99, 862 P.2d 1293 (1993).
This court is aware of no Oregon case explicitly deciding whether timing of an adverse action alone is sufficient for a plaintiff to make out a prima facie case of retaliation under ORS Chapter 659. However, at least one Oregon case reviewing an Employment Relations Board decision dealing with an analogous issue has stated that "`[t]he causal connection is typically based on proximity in time between the protected activity and the employer's action, coupled with attending circumstances that suggest something other than legitimate reasons for the temporal tie." Portland Ass'n of Teachers v. Multnomah Sch. Dist. No. 1, 171 Or. App. 616, 625, 16 P.3d 1189, 1197 (2000), quoting Amalgamated Transit Union, Div. 757 v. Tri-County Metro. Transit Dist., 17 PECBR 780, 787 (1998) (emphasis added). Another Oregon case overturned a trial court's grant of a motion for judgment notwithstanding the verdict on a retaliatory discharge claim because the plaintiff offered the suspicious timing of her termination, coupled with other statements by the employer. Wootan v. Viking Distrib. Co., Inc., 136 Or. App. 56, 899 P.2d 1219 (1995) (emphasis added). These cases suggest that, as the federal cases cited above, Oregon courts reject an inference of retaliation where other evidence provides a reasonable basis for inferring that an adverse action was not retaliatory.
Jaurrieta alleges that the retaliation against her began in April 2000, after she submitted the April 3, 2000 Flores Grievance. Complaint, ¶ 11. The problem is that Jaurrieta has failed to submit anything to support her retaliation claims other than the timing of her discharge less than eight weeks after she submitted the April 3, 2000 Flores Grievance, and there is abundant and unrebutted evidence that both Leonard and Rosalez had concerns about Jaurrieta's work performance many months prior to April 3, 2000. Leonard identified and discussed with Juarrieta a number of work performance issues between January and July 1999. She raised a host of issues, including Jaurrieta's significant number of absences, working at home rather than at PPS facilities, failure to attend meetings, failure to complete mileage logs, activity logs or other required paperwork, or submitting paperwork containing inconsistencies, and failure to sign in and out at the CSC or at the schools where she worked.
During the 1999/2000 school year, Rosalez was Jaurrieta's direct supervisor. By mid-December 1999, Rosalez was sufficiently dissatisfied with Jaurrieta's work performace that she authored a Memorandum of Expectation directing Jaurrieta to improve her work performance in 10 specific areas or face the possibility of further disciplinary actions, up to and including dismissal. Many of the issues raised by Rosalez were the same as those previously identified by Leonard, including the need to improve attendance, attend school meetings, and maintain and submit monthly activity logs. Those same issues were later addressed at the January 28, 2000 meeting between Rosalez, Jaurrieta, and Jaurrieta's attorneys.
Jaurrieta has offered absolutely no evidence that Leonard or Rosalez even knew about her April 3, 2000 Flores Grievance, which she sent to Gant (in Human Resources) and to Dr. Canada (then the Superintendent of PPS), much less that they would retaliate as a result of such a grievance. The only evidence in the record is the bare fact of their respective roles. Flores replaced Dr. Tran and apparently co-administered the ESL/Bilingual program with Leonard until Rosalez's arrival in July. At that time, Leonard ceased supervising Jaurrieta and Flores ceased being her direct supervisor. Rosalez became Jaurrieta's direct supervisor and in turn reported to Flores. In short, Jaurrieta offers nothing other than the fact that her termination took place some two months after she sent the April 3, 2000 Flores Grievance in order to establish the causal connection between the two events.
The other difficulty with Jaurrieta's theory is that it hinges upon an alleged pattern of harassment started by Leonard following Jaurrieta's March 19, 1999 Machorro Grievance. According to Jaurrieta, Leonard began criticizing her work performance following the Machorro incident, continued criticizing her work performance after the April 20, 1999 meeting with Flores, and then either Leonard or Flores (or both), persuaded Rosalez (and other PPS employees) to join the bandwagon. As described above, Jaurrieta asserts that other employees badmouthed and ostracized her. As for Rosalez, she "simply continued the harassment begun by Leonard" (Plaintiff's Concise Statement of Material Facts, ¶ 5), then issued a written reprimand to Jaurrieta on May 17, 2000 (a mere six weeks after the April 3, 2000 Flores Grivance), and finally decided to not offer her a contract for the next school year just a week later on May 24, 2000. Rosalez Dec, Exs 7 and 8. However, no evidence in the record leads to a reasonable inference that Rosalez knew of Jaurrieta's March 19, 1999 Machorro Grievance or that Leonard briefed Rosalez about the Machorro incident. By the time Rosalez was hired, Machorro had already been disciplined and Jaurrieta had been notified that PPS found no evidence to support a claim of gender discrimination. Moreover, Jaurrieta's February 3, 2000 BOLI Complaint mentions retaliation only by Leonard, despite the fact that Rosalez had already given Jaurrieta the Memorandum of Expectations and met with her twice to discuss work performance issues.
While Jaurrieta has submitted some evidence to counter several of the work performance issues raised by Leonard and Rosalez, she has offered nothing to suggest that the remaining criticisms were unwarranted. In her deposition, Jaurrieta could not identify any criticisms by Rosalez after filing the complaint that Rosalez had not made prior to the filing of the complaint. Jaurrieta Depo, pp. 166-67. And she has offered nothing to counter the evidence presented by PPS that several of the criticisms originated during Leonard's tenure as Jaurrieta's supervisor several months before Rosalez was even hired.
This case is distinctly different from a case where the first work criticisms came after the protected activity. Here, nothing counters the inference of retaliation raised by the timing of the adverse action and the work criticisms originated with a different supervisor well before the protected activity. The only reasonable reading of the record is that by the time Rosalez issued the December 17, 1999 Memorandum of Expectations, and conducted the January 28, 2000 meeting with Jaurrieta, the writing on the wall was obvious. Jaurrieta filed her February 3, 2000 BOLI Complaint within a week of the January 28, 2000 meeting. Similarly, Jaurrieta filed her April 3, 2000 Flores Grievance just two days prior to the meeting scheduled by Rosalez in her March 29, 2000 memorandum. The March 29, 2000 memorandum states unequivocally that if Jaurrieta does not adequately explain the ongoing performance issues, Rosalez will recommend termination.
In sum, Jaurrieta has failed to present evidence which raises an inference that her April 3, 2000 Complaint likely caused the criticisms of her work or her ultimate termination. She has therefore failed to establish a prima facie case of retaliation under either Title VII or ORS Chapter 659. Therefore, defendants' motion for summary judgment against Jaurrieta's Title VII and ORS 659.030 retaliation claims (part of First and Third Claims) should be granted.
C. Pretext
Even assuming that Jaurrieta has established a prima facie case of retaliation based simply on the timing of her April 3, 2000 grievance and her May 24, 2000 non-renewal, her retaliation claims still fail. Under federal law, establishing a prima facie case raises an inference of discrimination that the employer may rebut by presenting evidence that it had a legitimate, nondiscriminatory reason for its challenged decision. Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1436 (9th Cir 1990). To avoid summary judgment on the federal claim once the employer has presented such evidence, the plaintiff "must demonstrate a genuine issue of material fact as to pretext." Id at 1437; Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir 1983).
Oregon courts analyzing claims under ORS 659 do not follow this same analysis. Henderson v. Jantzen, Inc., 79 Or. App. 654, 657-58, 719 P.2d 1322, 1324 (1986); Callan v. Confederation of Oregon Sch. Adm., 79 Or. App. 73, 717 P.2d 1252 (1986). However, the burden-shifting formula applicable to federal employment discrimination cases applies equally to the assessment of Oregon employment discrimination claims brought in federal court. Snead v. Metropolitan Prop. Cas. Ins. Co, 237 F.3d 1080 (9th Cir), cert denied, 122 SCt 201 (2001).
Pretext can be shown in two ways: "either (1) directly by persuading the court that a discriminatory reason more likely motivated the employer or (2) indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). The plaintiff must produce specific facts revealing a genuine factual issue for trial, and evidence significantly probative of material facts that are claimed to be disputed. Steckl, 703 F.2d at 393, quoting Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir 1979), cert denied, 445 U.S. 951 (1980).
As discussed above, Jaurrieta relies principally on the timing of her nonrenewal to support her retaliation claims. She has countered some, but not all, of the work performance issues and the record clearly establishes that the work performance issues were by a different supervisor more than six months prior to the April 3, 2000 Flores Grievance. Jaurrieta offers declarations from Dr. Tran and Campos in an effort to show pretext. However, Dr. Tran's affidavit merely states his opinion that during his tenure, Jaurrieta was an "exemplary employee." It is undisputed that he supervised Jaurrieta only through April 1999, and that Rosalez, who made the decision to not renew Jaurrieta's contract, did not arrive until July 1999. The fact that Jaurrieta was, in Dr. Tran's opinion, an exemplary employee through April 1999 or, in Campo's opinion, was being unfairly criticized through October 1999 simply does not counter the ongoing work performance issues being raised and discussed by Rosalez between December 1999 and April 2000.
Additionally, there is insufficient evidence in the record to counter PPS's proffer of legitimate nondiscriminatory reasons for Jaurrieta's nonrenewal. Thus, for this additional reason, PPS should be granted summary judgment against Jaurrieta's Title VII and ORS 659.030 retaliation claims (part of the First and Third Claims).
V. Section 1981
Jaurrieta's Second Claim alleges a violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981. Section 1981 originated as Section 1 of the Civil Rights Act of 1866 in order to give effect to the Thirteenth Amendment and secure the fundamental rights of all citizens. See Mendez v. Rutherford, 687 F. Supp. 412, 415 (N.D. Ill 1988). "[T]he legislative history of the Civil Rights Act of 1866 manifests Congress' purpose to enact sweeping legislation implementing the thirteenth amendment to abolish all the remaining badges and vestiges of the slavery system." Mahone v. Waddle, 564 F.2d 1018, 1030 (3rd Cir 1977).
42 U.S.C. § 1981(a) states:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
As the text of the statute suggests, 42 U.S.C. § 1981 "redresses only discrimination based on race." Lowe v. City of Monrovia, 775 F.2d 998, 1010 (1985), amended, 784 F.2d 1407 (9th Cir 1986), citing Shah v. Mount Zion Hosp. and Med. Ctr., 642 F.2d 268, 272 n4 (9th Cir 1981). Jaurrieta's Complaint is premised entirely on discrimination, intimidation, and harassment due to her status as a "female," "due to her sex," or due to the denial of the same conditions and terms of employment as "male employees." Complaint, ¶¶ 1, 11, 14 (emphasis added). Nothing in the Complaint or in the supporting documents suggests that Jaurrieta brings a claim based on racial discrimination or harassment. As a result, PPS's motion for summary judgment should be granted against Jaurrieta's Second Claim for violation of 42 U.S.C. § 1981.
VI. Wrongful Discharge
Jaurrieta's Fourth Claim alleges wrongful discharge. In Oregon, the tort of wrongful discharge is a narrow exception to the at-will employment doctrine allowed in certain limited circumstances to deter conduct that is contrary to public policy. See Walsh v. Consolidated Freightways, Inc., 278 Or. 347, 350-51, 563 P.2d 1205, 1207-08 (1977). "Oregon courts have identified two circumstances that implicate this tort: (1) discharge for exercising a job-related right of important public interest, and (2) discharge for complying with a public duty. Draper v. Astoria Sch. Dist. No. 1C, 995 F. Supp. 1122, 1127 (D Or 1998) (citations omitted). Complaining about unlawful discrimination falls into the first of these two categories. Holien v. Sears Roebuck Co., 298 Or. 76, 689 P.2d 1292 (1984). A plaintiff may bring a wrongful discharge claim if she in good faith reports a belief that she was discriminated against in violation of Oregon's anti-discrimination laws and the employer terminates her for reporting the discrimination. McQuary v. Bel Air Convalescent Home, Inc., 69 Or. App. 107, 111, 684 P.2d 21, 23-24, rev denied, 298 Or. 37, 688 P.2d 845 (1984).
As with a retaliation claim, a plaintiff is required to show a causal connection between the exercise of the employment-related right (opposing the discrimination) and the adverse employment action (the discharge). Shockey v. City of Portland, 313 Or. 414, 422-23, 837 P.2d 505, 509-10 (1992), cert denied, 507 U.S. 1017 (1993). As discussed above, the only evidence submitted by Jaurrieta to show a causal link between her April 3, 2000 Complaint and her termination is the close temporal proximity of those two events. As also discussed above, any causal link arguably created by the timing of those events is broken in this case because of the overwhelming evidence of performance problems predating the April 3, 2000 Flores Grievance and the complete lack of any evidence that Rosalez even knew about, much less considered, the April 3, 2000 Flores Grievance when she decided to terminate Jaurrieta. For the same reasons, the evidence is insufficient to show any causal link sufficient to support a claim for wrongful termination. Therefore, PPS should also be granted summary judgment against Jaurrieta's wrongful discharge claim (Fourth Claim).
RECOMMENDATIONS
For the reasons stated above:
(1) Defendant's Motion for Sanctions (docket #29) should be GRANTED as to PPS's request for costs and fees incurred in preparing for Dr. Tran's deposition and DENIED in all other respects; and
(2) Defendant's Motion for Summary Judgment (docket #10) should be GRANTED.
SCHEDULING ORDER
Objections to these Findings and Recommendations, if any, are due January 10, 2002, 2001. If no objections are filed, then the Findings and Recommendations will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than January 28, 2002. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will be referred to a district court judge and go under advisement.