978-1285770178 Case Printout Case CPC-11-05 Part 1

Page 1

630 F.3d 928, 111 Fair Empl.Prac.Cas. (BNA) 306, 93 Empl. Prac. Dec. P 44,072, 11 Cal. Daily Op. Serv. 368,

2011 Daily Journal D.A.R. 462

(Cite as: 630 F.3d 928)

C.A.9 (Or.),2011.

Dawson v. Entek Intern.

630 F.3d 928, 111 Fair Empl.Prac.Cas. (BNA) 306, 93 Empl. Prac. Dec. P 44,072, 11 Cal. Daily Op. Serv. 368,

Ninth Circuit.

Shane DAWSON, Plaintiff–Appellant,

v.

ENTEK INTERNATIONAL, Defendant–Appellee.

No. 09–35844.

emotional distress. The United States District Court for the District of Oregon, Ann Aiken, J., 662 F.Supp.2d 1277,

granted summary judgment in favor of employer. Employee appealed.

Holdings: The Court of Appeals, Bury, District Judge, sitting by designation, held that:

(1) fact issue precluded summary judgment on employee’s unlawful retaliation claim;

[1] Federal Courts 170B 766

170B Federal Courts

170BVIII Courts of Appeals

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)1 In General

Page 2

630 F.3d 928, 111 Fair Empl.Prac.Cas. (BNA) 306, 93 Empl. Prac. Dec. P 44,072, 11 Cal. Daily Op. Serv. 368,

2011 Daily Journal D.A.R. 462

(Cite as: 630 F.3d 928)

170B Federal Courts

170BVIII Courts of Appeals

170BVIII(K) Scope, Standards, and Extent

170BVIII(K)3 Presumptions

170Bk802 k. Summary judgment. Most Cited Cases

A court of appeals reviews a district court’s grant of summary judgment de novo; the court of appeals must de-

termine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine

issues of material fact and whether the district court correctly applied the relevant substantive law.

[2] Civil Rights 78 1137

78 Civil Rights

78IV Remedies Under Federal Employment Discrimination Statutes

78k1534 Presumptions, Inferences, and Burden of Proof

78k1536 k. Effect of prima facie case; shifting burden. Most Cited Cases

The burden-shifting framework in McDonnell Douglas Corp. v. Green is as follows: the employee must first es–

170B Federal Courts

170BVI State Laws as Rules of Decision

170BVI(A) In General

170Bk373 k. Substance or procedure; determinativeness. Most Cited Cases

78IV Remedies Under Federal Employment Discrimination Statutes

78k1534 Presumptions, Inferences, and Burden of Proof

78k1541 k. Retaliation claims. Most Cited Cases

Retaliatory discharge claims under Title VII follow the same burden-shifting framework described in McDon–

nell Douglas. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

Page 3

630 F.3d 928, 111 Fair Empl.Prac.Cas. (BNA) 306, 93 Empl. Prac. Dec. P 44,072, 11 Cal. Daily Op. Serv. 368,

2011 Daily Journal D.A.R. 462

(Cite as: 630 F.3d 928)

[5] Civil Rights 78 1243

78 Civil Rights

78IV Remedies Under Federal Employment Discrimination Statutes

78k1534 Presumptions, Inferences, and Burden of Proof

78k1541 k. Retaliation claims. Most Cited Cases

To establish a prima facie case of retaliatory discharge under Title VII, an employee must show that he engaged

78 Civil Rights

78IV Remedies Under Federal Employment Discrimination Statutes

78k1534 Presumptions, Inferences, and Burden of Proof

78k1541 k. Retaliation claims. Most Cited Cases

[7] Civil Rights 78 1243

78 Civil Rights

78II Employment Practices

78k1241 Retaliation for Exercise of Rights

[8] Federal Civil Procedure 170A 2497.1

170A Federal Civil Procedure

170AXVII Judgment

Page 4

630 F.3d 928, 111 Fair Empl.Prac.Cas. (BNA) 306, 93 Empl. Prac. Dec. P 44,072, 11 Cal. Daily Op. Serv. 368,

2011 Daily Journal D.A.R. 462

(Cite as: 630 F.3d 928)

170AXVII(C) Summary Judgment

170AXVII(C)2 Particular Cases

170Ak2497 Employees and Employment Discrimination, Actions Involving

170Ak2497.1 k. In general. Most Cited Cases

Genuine issue of material fact existed as to whether temporary employee was terminated from employment in

78 Civil Rights

78IV Remedies Under Federal Employment Discrimination Statutes

78k1543 Weight and Sufficiency of Evidence

78k1553 k. Retaliation claims. Most Cited Cases

In some cases, temporal proximity between the protected action and the allegedly retaliatory employment deci-

78 Civil Rights

78II Employment Practices

78k1181 Sexual Harassment; Work Environment

78k1185 k. Hostile environment; severity, pervasiveness, and frequency. Most Cited Cases

A plaintiff may establish a sex hostile work environment claim under Title VII by showing that he was subject-

78 Civil Rights

78II Employment Practices

78k1181 Sexual Harassment; Work Environment

78k1185 k. Hostile environment; severity, pervasiveness, and frequency. Most Cited Cases

To establish a sex hostile work environment claim under Title VII, a plaintiff must establish that the conduct at

78 Civil Rights

Page 5

630 F.3d 928, 111 Fair Empl.Prac.Cas. (BNA) 306, 93 Empl. Prac. Dec. P 44,072, 11 Cal. Daily Op. Serv. 368,

2011 Daily Journal D.A.R. 462

(Cite as: 630 F.3d 928)

78II Employment Practices

78k1181 Sexual Harassment; Work Environment

Where an employee is allegedly harassed by coworkers, the employer may be liable for a sex hostile work envi-

ronment claim under Title VII if it knows or should know of the harassment but fails to take steps reasonably calcu-

lated to end the harassment. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

[13] Civil Rights 78 1186

masculine or for otherwise not fitting the male stereotype, so as to support his hostile work environment claim under

Title VII based on gender. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

[14] Civil Rights 78 1194

ployment. West‘s Or.Rev. Stat. Ann. § 659A.030.

[15] Civil Rights 78 1149

78 Civil Rights

78IV Remedies Under Federal Employment Discrimination Statutes

78k1526 Persons Liable

78k1528 k. Vicarious liability; respondeat superior. Most Cited Cases

When harassment by a supervisor is at issue, an employer is vicariously liable under Title VII, subject to a po-

Page 6

630 F.3d 928, 111 Fair Empl.Prac.Cas. (BNA) 306, 93 Empl. Prac. Dec. P 44,072, 11 Cal. Daily Op. Serv. 368,

2011 Daily Journal D.A.R. 462

(Cite as: 630 F.3d 928)

[16] Federal Civil Procedure 170A 2497.1

170A Federal Civil Procedure

170AXVII Judgment

170AXVII(C) Summary Judgment

170AXVII(C)2 Particular Cases

170Ak2497 Employees and Employment Discrimination, Actions Involving

170Ak2497.1 k. In general. Most Cited Cases

Genuine issue of material fact existed as to whether employer was put on notice of hostile work environment al-

leged by temporary employee, precluding summary judgment on employee’s sexual orientation hostile work envi-

ronment claim against employer. West’s Or.Rev. Stat. Ann. § 659A.030.

78k1528 k. Vicarious liability; respondeat superior. Most Cited Cases

An employer is vicariously liable under Title VII for harassing actions by a supervisor who has immediate, or

successively higher, authority over the employee; this distinction is not dependent upon job titles or formal struc-

tures within the workplace, but rather upon whether a supervisor has the authority to demand obedience from an

employee. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

78k1149 k. Knowledge or notice; preventive or remedial measures. Most Cited Cases

Employers are liable under Title VII 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. Civil Rights

Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

An employer may avoid liability for coworkers‘ harassment of an employee under Title VII if it undertook re-

medial measures reasonably calculated to end the harassment; the reasonableness of the remedy depends on its abil-

ity to: (1) stop harassment by the person who engaged in harassment; and (2) persuade potential harassers to refrain

from unlawful conduct. Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

Page 7

630 F.3d 928, 111 Fair Empl.Prac.Cas. (BNA) 306, 93 Empl. Prac. Dec. P 44,072, 11 Cal. Daily Op. Serv. 368,

2011 Daily Journal D.A.R. 462

(Cite as: 630 F.3d 928)

115 Damages

115III Grounds and Subjects of Compensatory Damages

distress, and (3) the acts were sufficiently grievous to constitute a transgression of the bounds of socially tolerable

conduct.

[21] Damages 115 57.22

Under Oregon law, the intent element of an intentional infliction of emotional distress claim does not require a

malicious motive or a purposeful design to inflict emotional distress on the plaintiff; it is satisfied if a defendant

either desires to inflict severe emotional distress, or knows that such distress is certain, or substantially certain, to

result from his conduct.

115k57.19 Intentional or Reckless Infliction of Emotional Distress; Outrage

115k57.22 k. Nature of conduct. Most Cited Cases

Whether the conduct alleged on an intentional infliction of emotional distress claim under Oregon law is suffi-

ciently extreme or outrageous to be actionable is a fact-specific inquiry, one to be made on a case–by-case basis con-

sidering the totality of the circumstances.

115k208(6) k. Mental suffering and emotional distress. Most Cited Cases

Whether conduct constitutes an extraordinary transgression of the bounds of socially tolerable conduct in the

context of an intentional infliction of emotional distress claim under Oregon law is a question of law.

Page 8

630 F.3d 928, 111 Fair Empl.Prac.Cas. (BNA) 306, 93 Empl. Prac. Dec. P 44,072, 11 Cal. Daily Op. Serv. 368,

2011 Daily Journal D.A.R. 462

(Cite as: 630 F.3d 928)

[24] Damages 115 57.55

115 Damages

115III Grounds and Subjects of Compensatory Damages

115III(A) Direct or Remote, Contingent, or Prospective Consequences or Losses

Kevin T. Lafky and Haley Percell, Lafky and Lafky, Salem, OR, for the plaintiff-appellant.

Patricia K. Runkles–Pearson and Dennis Westlind, Stoel Rives LLP, Portland, OR, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon, Ann Aiken, District Judge, Presiding. D.C.

OPINION

BURY, District Judge: OVERVIEW

Shane Dawson (Dawson), a male homosexual, appeals the district court’s grant of summary judgment in favor

of his former employer, Entek International (Entek), on claims of discrimination arising from his termination. Entek

is an Oregon-based company that manufactures polyethylene battery separators.

alleges that the district court erred when it granted summary judgment against Dawson on his claim of intentional

infliction of emotional distress.

Viewing the evidence in the light most favorable to the nonmoving party, Dawson produced circumstantial evi-

dence of retaliatory discharge and sexual orientation hostile work environment, such that resolution of this action by

summary judgment was error. We reverse and remand.

BACKGROUND

On April 13, 2007, Dawson was hired by Entek as a temporary production line worker. His job was to run a

production line that rolled up battery separators. Dawson worked with 24 other employees, all male. Production line