978-1285770178 Case Printout Case CPC-11-05 Part 2

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Page 9

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)

workers generally worked three 12 hour shifts and then one 6 hour shift, rotating days and graveyard shifts. Dawson

had two acquaintances who already worked at Entek, Josh Dobbs (Dobbs) and Travis Etherington (Etherington),

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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)

in, but they said that I didn’t call in. And then I explained to them—we also discussed what was talked about the

day before, as to why I missed my shift, and I was told by Oakley and by Margaret [Campbell Rivers (Rivers) of

Human Resources] that we have two different situations here and that therefore you’re being terminated [from]

fact and whether the district court correctly applied the relevant substantive law. Id.

DISCUSSION

I. The district court did not err in concluding that the McDonnell Douglas burden-shifting framework applies

when analyzing claims under Or.Rev.Stat. § 659A.030.

Dawson’s position is that the district court erred when it applied the McDonnell Douglas burden-shifting analy-

its use of the burden-shifting framework, because that was a diversity jurisdiction case. Snead held that, “when en-

tertaining motions for summary judgment in employment discrimination cases arising under state law, federal courts

sitting in diversity must apply the McDonnell Douglas burden-shifting scheme as a federal procedural rule.” 237

F.3d at 1094.

Entek contends that the district court properly applied the burden shifting framework to find no state claim of

[t]he employee must first establish a prima facie case of discrimination. If he does, the employer must articulate a

legitimate, nondiscriminatory reason for the challenged action. Finally, if the employer satisfies this burden, the

employee must show that the reason is pretextual either directly by persuading the court that a discriminatory rea-

son more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is un-

worthy of credence.

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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)

tal status or age if the individual is 18 years of age or older, or because of the race, color, religion, sex, sexual ori-

entation, national origin, marital status or age of any other person with whom the individual associates, or because

of an individual‘s juvenile record that has been expunged pursuant to ORS 419A.260 and 419A.262, to refuse to

hire or employ the individual or to bar or discharge the individual from employment. However, discrimination is

not an unlawful employment practice if the discrimination results from a bona fide occupational qualification rea-

sonably necessary to the normal operation of the employer’s business.

(b) For an employer, because of an individual’s race, color, religion, sex, sexual orientation, national origin, mari-

tal status or age if the individual is 18 years of age or older, or because of the race, color, religion, sex, sexual ori-

entation, national origin, marital status or age of any other person with whom the individual associates, or because

of an individual’s juvenile record that has been expunged pursuant to ORS 419A.260 and 419A.262, to discrimi-

nate against the individual in compensation or in terms, conditions or privileges of employment.

The district court found that “[b]ecause the Oregon Revised Statutes § 659A.030 was modeled after Title VII,

plaintiff’s state and federal gender discrimination claims can be analyzed together.” Dawson v. Entek Int‘l, 662

F.Supp.2d 1277, 1284 (D.Or.2009). The district court relied on Snead when it employed the burden-shifting frame-

work. Snead represents the law of this circuit and applies in all cases in federal district court in which the choice

discrimination claims.

II. The district court erred in granting summary judgment on Dawson’s claims for retaliation under Title VII

and Or.Rev.Stat. § 659A.030.

Dawson contends that the district court erred “when it concluded that Plaintiff had not offered any evidence of

[4][5][6] Title VII prohibits an employer from discriminating against an employee for opposing an unlawful

employment practice, such as filing a complaint alleging sexual orientation harassment and hostile work environ-

ment. Retaliatory discharge claims follow the same burden-shifting framework described in McDonnell Douglas. To

establish a prima facie case, the employee must show that he engaged in a protected activity, he was subsequently

subjected to an adverse employment action, and that a causal link exists between the two. See Jordan v. Clark, 847

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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)

knowledge of the protected activities and the proximity in time between the protected activity and the adverse ac-

tion. Id. If a plaintiff establishes a prima facie case of unlawful retaliation, the burden shifts to the defendant em-

ployer to offer evidence that the challenged action was taken for legitimate, non-discriminatory reasons. See Nidds v.

result of the retaliation. See Seitz v. Albina Human Res. Ctr., 100 Or.App. 665, 674–75, 788 P.2d 1004

(Or.App.1990).

[8] In order to establish his unlawful retaliation claim, Dawson must show the existence of facts from which a

reasonable trier of fact could conclude that sometime during his short employment, he engaged in protected activity

and that his employer, Entek, retaliated against him in response to that activity. There exists circumstantial evidence

employment about the sexual orientation discrimination he was experiencing. Because Guzon was Dawson‘s trainer

and immediate manager, there is evidence from which a fact-finder may conclude that Guzon was Dawson’s super-

visor. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1119 n. 13 (9th Cir.2004). Unqualifiedly, Dawson’s discus-

sion with Morch was a human resources contact with reference to his treatment. Entek’s explanation for the dis-

charge was the failure to comply with the no-show/no-call policy, but the timing of the two events, particularly be-

taliation for purposes of both the prima facie case and the showing of pretext. See Bell v. Clackamas County, 341

F.3d 858, 865–66 (9th Cir.2003); Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731–32 (9th Cir.1986).

Viewing the facts in the light most favorable to Dawson, the protected activity occurred at most two days before

the discharge and the treatment of Dawson was a topic during both the protected activity and the discharge, as ex-

plained by the supervisor and human resources person who fired him. The gravity of Dawson’s complaints coupled

failed because he could not establish that the comments made by his co–workers were due to his gender. He argues

that one way of satisfying the requirement that he prove the harassment was “because of [his] sex” is to inquire

whether the harasser would have acted the same if the gender of the victim had been different. See Oncale v. Sun–

downer Offshore Servs., Inc., 523 U.S. 75, 80–81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).

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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)

Entek asserts under the theory of Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268

(1989), and Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 874–875 (9th Cir.2001) that Dawson’s sole basis for

his hostile work environment gender discrimination claim is that he was harassed because he appeared effeminate.

Entek argues that the district court properly dismissed those claims because Dawson presented no evidence that he

failed to conform to a gender stereotype. Entek relies on Dawson’s own testimony that he does not exhibit effemi-

conduct at issue was both objectively and subjectively offensive: he must show that a reasonable person would find

the work environment to be “hostile or abusive,” and that he in fact did perceive it to be so. Faragher v. City of Boca

Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Where an employee is allegedly harassed by co–

workers, the employer may be liable if it knows or should know of the harassment but fails to take steps “reasonably

calculated to end the harassment.” Nichols, 256 F.3d at 875 (internal quotation marks omitted).

[13] The district court correctly found that based even on his own testimony Dawson was not being verbally

harassed for appearing non-masculine or for otherwise not fitting the male stereotype. There do not appear to be

sufficient facts to support a finding that a reasonable trier of fact could conclude that Dawson experienced a hostile

work environment based on his gender.

bar sexual orientation hostile work environment claims at the time, but concluded Entek was not liable because

Guzon did not fall within the definition of a supervisor under Lamb v. Household Credit Services, 956 F.Supp. 1511

(N.D.Cal.1997).

A. The district court did not err when it determined that Or.Rev.Stat. § 659A.030 prohibits sexual orientation

viable claim for relief. Entek asks us to hold that the district court erred when it determined that Or.Rev.Stat. §

659A.030 prohibited sexual orientation discrimination before the amendments that took effect in January 2008.

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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)

In 2007, Oregon amended its general anti–discrimination in employment statute to include “sexual orientation”

these events took place, however, the statute only provided that it was unlawful for an employer to discriminate “be-

cause of … sex … or because of the … sex ... of any other person with whom the individual associates.” Or.Rev.Stat.

§ 659A.030 (2007). Tanner held that “the only plausible construction of th[is] statutory language” is that it governs

sexual orientation discrimination. 157 Or.App. at 524, 971 P.2d 435; see also Heller v. Columbia Edgewater Coun–

try Club, 195 F.Supp.2d 1212, 1222 (D.Or.2002) (“O.R.S. § 659A.030 prohibits discrimination on the basis of an

entation hostile work environment.

[14] To prevail on the hostile work environment claim based on sexual orientation, Dawson is required to estab-

lish a pattern of ongoing and persistent harassment severe enough to alter the conditions of employment. Draper v.

Coeur Rochester, Inc., 147 F.3d 1104, 1108 (9th Cir.1998); Fred Meyer, Inc. v. Bureau of Labor & Indus., 152

Or.App. 302, 307, 954 P.2d 804 (Or.App.1998). Dawson needed to produce evidence such that a reasonable trier of

assment but did not take adequate steps to address it.” Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir.2001);

see also Nichols, 256 F.3d at 875 (holding that when harassment by co-workers is at issue, the employer’s conduct is

reviewed for negligence).

[16] Entek argues that Dawson presented no evidence that managers had any knowledge of Dawson’s treatment.

Evidence exists in the record that the company officially was put on notice of the hostile work environment when

in which a harasser supervises the plaintiff, where vicarious liability is available, versus a situation in which a har-

asser is a supervisor and yet does not supervise the plaintiff. See Swinton, 270 F.3d at 804–05. An employer is vicar–

iously liable for actions by a supervisor who has “immediate (or successively higher) authority over the employee.”

Faragher, 524 U.S. at 807, 118 S.Ct. 2275. This distinction “is not dependent upon job titles or formal structures

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

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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)

created by a supervisor. See Nichols, 256 F.3d at 877. The district court should reconsider whether Entek has made

out the affirmative defense after resolving the disputed facts in this case. If, for example, Entek fired Dawson in re-

taliation for his protected complaint, it would be difficult to say that Entek had adequately addressed the problem of

2. Liability for Actions by Coworkers

[18] “ ‘[E]mployers 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.’ ” Ellison, 924 F.2d at

881 (quoting EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515–16 (9th Cir.1989)); see also Swinton, 270 F.3d at 803.

Entek had actual knowledge of the events at least by the time Dawson informed Morch, in Human Resources, and

v. U.S. Dep‘t of the Air Force, 109 F.3d 1475, 1482 (9th Cir.1997). “The reasonableness of the remedy depends on

its ability to: (1) ‘stop harassment by the person who engaged in harassment;’ and (2) ‘persuade potential harassers

to refrain from unlawful conduct.’ ” Nichols, 256 F.3d at 875 (quoting Ellison, 924 F.2d at 882). To be adequate, an

employer must intervene promptly. See Intlekofer v. Turnage, 973 F.2d 773, 778 (9th Cir.1992). Remedial measures

may include some form of disciplinary action, see Yamaguchi, 109 F.3d at 1482, “proportionate[ ] to the seriousness

875–76 (“When the employer undertakes no remedy, or where the remedy does not end the current harassment and

deter future harassment, liability attaches for both the past harassment and any future harassment.”); Fuller v. City of

Oakland, 47 F.3d 1522, 1529 (9th Cir.1995) (noting that Title VII condemns “the existence of past harassment, eve–

ry bit as much as the risk of future harassment”). As stated above, the district court should reconsider whether the

defense has been made out after resolving the disputed factual issues surrounding Dawson’s firing.

calling and derogatory references to homosexuality transcended the boundaries of socially acceptable behavior by

Entek. Dawson argues that whether actions involved constituted socially intolerable conduct amounting to intention-

al infliction of emotional distress (IIED) is a fact question to be resolved on a case–by-case basis by the trier of fact

considering the totality of the circumstances.

[20][21][22][23] To prove a claim of intentional infliction of emotional distress under Oregon law, a plaintiff

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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)

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.” Id. at 132, 41 P.3d 1099 (internal quotation

marks omitted). “Whether the conduct alleged is sufficiently extreme or outrageous to be actionable is a fact-specific

inquiry, one to be made on a case-by–case basis considering the totality of the circumstances.” Id. at 130, 41 P.3d

1099. “Whether conduct constitutes an extraordinary transgression of the bounds of socially tolerable conduct is a

question of law.” Harris v. Pameco Corp., 170 Or.App. 164, 171, 12 P.3d 524 (Or.App.2000).

[24] In the corporate context, a company’s indifference to coworker harassment does not make out an IIED

claim against the company. See Wheeler v. Marathon Printing, Inc., 157 Or.App. 290, 307–08, 974 P.2d 207

(Or.App.1998) (citing Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 627–28, 733 P.2d 430 (Or.1987)). Thus, the

district court correctly found that Dawson failed to legally state a claim for intentional infliction of emotional dis-

tress by Entek.

issue of material fact concerning a hostile work environment based on sexual orientation.

Because Dawson has presented circumstantial evidence that a genuine issue of material fact exists regarding his

claims of retaliation and sexual orientation hostile work environment, the decision of the district court is reversed on

these claims and this matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED.

END OF DOCUMENT