Opinion
CV 03-1800-HA.
September 22, 2004
Mary A. Betker, The Betker Law Firm, P.C. Vancouver, WA, Attorney for Plaintiff
Calvin L. Keith, Julia E. Markley, Perkins Coie LLP, Portland, OR, Attorneys for Defendants.
OPINION AND ORDER
Plaintiff Jeff Christenson filed this case on December 31, 2003, asserting claims arising from his discharge from employment on January 30, 2003. Plaintiff claims discrimination and retaliation based on the Age Discrimination in Employment Act (ADEA) and the Family Medical Leave Act (FMLA), breach of contract, and wrongful termination.
In February 2004, defendants filed a Motion to Dismiss plaintiff's breach of contract claim and all claims based on the FMLA (Doc. #4). This motion was denied (Doc. #20). On July 30, 2004, defendants filed a Motion for Summary Judgment (Doc. #23). On August 24, 2004, the parties stipulated to the dismissal of the breach of contract claim against defendant The Boeing Company (Boeing).
Oral argument for the motion was scheduled for September 7, 2004. Plaintiff's counsel did not appear for the hearing. Defendants declined to put anything on the record. The court then took defendants' Motion for Summary Judgment under advisement.
BACKGROUND
At the time of his discharge, plaintiff Jeff Christenson was a Machine Assembly Tech for defendant Boeing in its Portland, Oregon, facility. Plaintiff was employed by Boeing from September 1988 until his discharge on January 30, 2003. At the time of his termination, plaintiff was making $28.75 per hour. Plaintiff asserts that he was earning the highest possible hourly pay rate in his class. Plaintiff was forty-two years old at the time he was discharged. Cafeteria incident and termination
Plaintiff was discharged two days after an alleged incident that occurred in the company cafeteria on the morning of January 28, 2003.
The cafeteria is run by Eurest Dining.
The undisputed facts are that plaintiff regularly ate breakfast in the company cafeteria during his morning break. Plaintiff's custom was to have some combination of eggs, meat, and hash browns, all covered with gravy and salsa, and a drink. On January 28, 2003, plaintiff followed his typical routine; he went through the food line and then took his tray to the cashier and paid for his breakfast.
The following day, plaintiff was interviewed by Boeing security personnel who asked him if he had hidden food on his tray the previous morning and then misrepresented to the cashier what was actually on his plate. Plaintiff denied doing this. He said that he assumed the cashier accurately charged him for the food he had taken, that he always intended to pay for everything on his plate, and that he had paid for everything he took that day.
On January 30, 2003, plaintiff was asked to report to the office of Cory Pyle (Pyle), the Acting Human Resources Generalist Manager with Boeing. Pyle informed plaintiff that he was being terminated effective immediately for violating Boeing's Expected Conduct Standard against employee theft because he had stolen food from the cafeteria. Plaintiff denied stealing food from the cafeteria on January 28, 2003, or on any other occasion.
Defendants assert that discharge was an appropriate response to the alleged theft because honesty was important to plaintiff's job. In his capacity as a Machine Assembly Tech, plaintiff was required to sign off on his work to indicate that he had completed it according to Boeing standards. In his deposition, plaintiff stated that termination is generally an appropriate response to employee theft. See Christenson Dep. at 64.
Defendant Boeing generated a Security Report dated January 29, 2003. Plaintiff disputes the contents of the report. The report states that sometime in January 2003, two of plaintiff's coworkers informed their supervisor, Dave Erdahl (Erdahl), that they observed plaintiff conceal food on his plate in the cafeteria and then go through the cashier's line without paying for the concealed food. On January 27 or 28, 2003, Erdahl reported these statements to a cafeteria cashier, Julie Butterworth (Butterworth), and Butterworth reported the statements to her manager, Rick Mead (Mead). Mead in turn reported the information to Boeing's security personnel and instructed Butterworth and a grill cook, Linda Paul (Paul), to observe plaintiff the next time he visited the cafeteria.
On January 28, Paul stated that she watched plaintiff take hash browns, two eggs, gravy, corned beef hash, and salsa. Butterworth stated that when plaintiff came to her register to pay for his meal, she could see only hash browns, gravy, salsa, and a drink on his tray. Butterworth asked plaintiff if hash browns, gravy and a drink was "all he had." Plaintiff replied, "Yes, I live for hash browns and gravy." Butterworth charged him and he paid for only those stated items.
The Security Report consists of interviews with seven people: Allen Tangedal and Richard Alberding, plaintiff's coworkers; Erdahl, plaintiff's supervisor; Mead; Paul; Butterworth; and plaintiff. Defendants assert that the Security Report was given to Pyle and that Pyle alone determined that plaintiff should be discharged. Pyle states that before reaching her final conclusion to discharge plaintiff she contacted other Boeing human resources personnel and confirmed that other employees had been terminated for theft. Pyle asserts that she made the decision to terminate plaintiff based only on the Security Report and that she was unaware at that time that there had been any complaints by plaintiff regarding his age or FMLA leave.
Replacement
Plaintiff originally asserted that Boeing replaced him with a much younger employee, but in his deposition stated that he did not know whether anybody replaced him. Plaintiff presents no evidence that his position has been filled by another employee. Defendant Boeing states that it has not hired a Machine Assembly Tech since plaintiff was discharged. Plaintiff argues that because the job he was doing is necessary to Boeing, someone must now be doing those tasks.
Union grievance
On January 30, 2003, plaintiff filed a grievance with his union. Plaintiff stated that he later voluntarily withdrew the grievance because he wanted to pursue a civil remedy instead. Plaintiff stated that the union was dragging its feet in addressing his claim. In May 2003, the union sent plaintiff a letter stating that his claim was dismissed because it was "without merit."
Plaintiff's comment regarding his age
Plaintiff alleges that he made an age-related comment to his supervisor, Steve Pulsinelli (Pullsinelli), at some point during his employment with Boeing. This is the only age-related incident that plaintiff alleges. Defendants assert that Pulsinelli was plaintiff's supervisor from November 7, 1997, to May 9, 1999, and again from December 24, 1999, to March 2, 2001. Plaintiff does not dispute this. Plaintiff cannot remember when he made the comment to Pulsinelli, but he does not dispute defendants' contention that it must have been made before March 2, 2001, which is almost twenty-three months prior to plaintiff's discharge. In his deposition, plaintiff describes the incident as follows:
Q. [Defense counsel speaking] What do you recall, if anything?
A. [Plaintiff speaking] He [Steve Pulsinelli] had brought me in there on another issue and was — singling me out on another issue, and I don't recall the actual issue, and the subject was brought up.
Q. What subject was brought up?
A. About, you know, maybe you are doing this to me because of my age. And he didn't actually have an answer for me at the time.
Q. Were those your words, "Maybe you're doing this to me because of my age"?
A. Yeah.
Christenson Dep. at 36-37.
FMLA leave and unexcused absences
Plaintiff's wife suffers from anxiety and depression. Beginning in 2000 and continuing through mid-2002, plaintiff took approved FMLA leave to be with her. A FMLA physician's certification was on file with Boeing.
On March 3, 2002, a fire destroyed plaintiff's home and two cars. Plaintiff states that he spoke with a human resources representative soon after the fire and was told that he could use FMLA leave to help his wife cope with the situation. In his personnel documents requesting the leave, plaintiff stated that he also needed the days off to meet with insurance agents and others involved in rebuilding his house. Later, after he had already taken the days off, plaintiff was told that FMLA leave was not approved for those days. On July 19, 2002, he received a written warning for unexcused absences for the twelve days he thought had been approved as FMLA leave. Plaintiff appealed his written warning to Boeing's Extreme and Extenuating Circumstances Board requesting that the absences be retroactively excused. His request was denied.
Plaintiff complained to his supervisor, Erdahl, that the warning was unfair because he had been told by a human resources representative that FMLA leave was appropriate for those days. Plaintiff contends that he was set up for this incident and that, after this incident, he was set up to be terminated in retaliation for exercising his right to use FMLA leave.
STANDARDS
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Assuming that there has been sufficient time for discovery, summary judgment should be entered against a "party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. In attempting to establish the existence of a factual dispute, the non-moving party may not rely upon the denials of its pleading, but is required to present evidence of specific facts in the forms of affidavits or other admissible discovery material. Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 11 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998).
The burden-shifting framework of McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973), applies to a motion for summary judgment on claims of discrimination and retaliation brought under the Age Discrimination in Employment Act (ADEA). Wallis v. J.R. Simplot Co., 26 F.3d 885, 888-89 (9th Cir. 1994) (citing Rose v. Wells Fargo Co., 902 F.2d 1417, 1420 (9th Cir. 1990)). The McDonnell Douglas framework also applies to FMLA retaliation claims. See Washington v. Fort James Operating Co., 110 F. Supp 2d. 1325, 1330 (D. Or. 2000) (applying the McDonnell Douglas burden-shifting framework to a FMLA retaliation claim); see also Bourgo v. Canby School Dist., 167 F. Supp. 2d 1173, 1179 (D. Or. 2001).
This is a three-step framework. First, the plaintiff must establish a prima facie case of discrimination or retaliation. Id. at 889. If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Id. at 888. The defendant meets this burden of production if it introduces "evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993) (emphasis in original). If the employer meets this burden, "the presumption created by the prima facie case disappears." Wallis, 26 F.3d at 892.
The burden then shifts back to the plaintiff to demonstrate, with evidence beyond that required to establish the prima facie case, that the reason put forth by the employer is a pretext for what was actually a discriminatory or retaliatory employment action. Id. at 889. In order to make a sufficient showing of pretext to survive summary judgment, a plaintiff must provide "direct evidence of discrimination" or offer "substantial evidence that the employer's proffered reasons were not reliable." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1219 (9th Cir. 1998). "`Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.'" Id. at 1221 (quoting Davis v. Chevron, U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994)). If direct evidence is not available, the plaintiff may show pretext through circumstantial evidence that tends to show that the defendant's alleged nondiscriminatory motives were not the actual motives because they were inconsistent or not believable. Godwin, 150 F.3d at 1222. "Such evidence of `pretense' must be `specific' and `substantial' in order to create a triable issue." Id. (citations omitted).
ADEA discrimination claim — prima facie case
Under the ADEA, it is "unlawful for an employer . . . to discharge any individual . . . because of such individual's age" if that individual is at least forty years of age. 29 U.S.C. §§ 623(a), 631(a). "Very little" evidence is required to establish a prima facie case for ADEA claims on summary judgment. Wallis, 26 F.3d at 891.
To establish a prima facie case of ADEA discrimination a plaintiff generally must "show he was: (1) a member of a protected class [over age forty]; (2) performing his job in a satisfactory manner; (3) discharged; and (4) replaced by a substantially younger employee with equal or inferior qualifications." Id. However, because the replacement element cannot be shown where an employee has been laid off by an employer due to a reduction in force, a plaintiff in that situation has an alternate means to establish a prima facie case. See Rose, 902 F.2d at 1421 ("We have held that the failure to prove replacement by a younger employee is `not necessarily fatal' to an age discrimination claim where the discharge results from a general reduction in the work force due to business conditions.") (citation omitted). Such a plaintiff may establish a prima facie case if the plaintiff shows through circumstantial, statistical, or direct evidence that the discharge resulted from a reduction in work force that gave rise to an inference of age discrimination. Wallis, 26 F.3d at 891.
ADEA retaliation claim — prima facie case
To establish a prima facie case of ADEA retaliation, a plaintiff must show that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment decision; and (3) there is a causal connection between the two. O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996). To show a causal connection, plaintiff must show "by a preponderance of the evidence that engaging in the protected activity was one of the reasons for [his] firing and that but for such activity [he] would not have been fired." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064-65 (9th Cir. 2002) (citation omitted).
FMLA retaliation claim — prima facie case
The FMLA entitles an eligible employee to twelve weeks of leave during any twelve-month period to care for a new child, a family member with a serious health condition, or if the employee has a serious health condition. 29 U.S.C. § 2612. It is unlawful to "discharge or in any other manner discriminate against any individual for opposing any practice made unlawful" by the FMLA. 29 U.S.C. § 2615(a).
To establish a prima facie FMLA retaliation claim, the plaintiff must show that: "(1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; and (3) there is a causal connection between the two actions." Washington, 110 F. Supp. 2d at 1330 (citing Morgan v. Hilti, 108 F.3d 1319, 1325 (10th Cir. 1997)).
Wrongful discharge claim
Plaintiff alleges a state law claim for wrongful discharge. In Oregon, wrongful discharge is a narrow exception to the at-will employment doctrine. See Holien v. Sears, Roebuck and Co., 689 P.2d 1292, 1295 (Or. 1984). It is allowed in limited circumstances to deter an employer's conduct that is contrary to public policy. See id. at 1295-97. One such circumstance is when an "employee is discharged while pursuing a right related to his role as an employee and the right is one of important public interest indicated by constitutional and statutory provisions and caselaw." Delaney v. Taco Time Int'l Inc., 681 P.2d 114, 118 (Or. 1984). "An employee has a claim for wrongful discharge if she is fired for pursuing a statutory right related to her role as an employee." Cross v. Eastlund, 796 P.2d 1214, 1216 (Or.App. 1990) (emphasis in original). A wrongful termination claim does not arise from unlawful discrimination, but from a "tortious discharge following [plaintiff's] rightful resistance" to wrongful discrimination. See Holien, 689 P.2d at 1300.
To proceed on a claim of wrongful discharge, the plaintiff must show a causal connection between the exercise of the employment-related right and the adverse employment action. Shockey v. City of Portland, 837 P.2d 505, 509-10 (Or. 1992).
DISCUSSION
Defendants move for summary judgment on plaintiff's claims for ADEA discrimination, ADEA retaliation, FMLA retaliation, and wrongful termination in violation of public policy based on the ADEA and the FMLA.
ADEA discrimination claim Prima facie case
Plaintiff contends that he was discharged because he is an older employee who was receiving a higher salary than defendant Boeing wanted to pay. Defendants concede that plaintiff meets the first three requirements of a prima facie case: He is over forty years old, had satisfactory job performance, and was discharged. Defendants argue that plaintiff fails the fourth requirement because plaintiff was not replaced by a substantially younger employee with equal or inferior qualifications.
Plaintiff puts forth no evidence indicating that he was replaced by a younger — or, indeed, by any — employee. In fact, plaintiff concedes that he does not know whether he was replaced. Christenson Dep. at 115. Defendant Boeing maintains that it has not hired a Machine Assembly Tech since the time of plaintiff's discharge. See Decl. of Cory B. Pyle at 2. Thus, the court is left to conclude that plaintiff was not replaced by a younger employee.
Plaintiff may still establish a prima facie case if he can show that his discharge resulted in a workforce reduction with an inference of age discrimination. See Rose, 902 F.2d at 1421. Plaintiff argues that his job was necessary at Boeing's plant and, therefore, that someone must now be completing the tasks for which he was previously responsible. Plaintiff presents the following evidence: 1) plaintiff's comment to his supervisor suggesting that he was singling him out because of his age; 2) plaintiff's assertion that he was earning the highest salary possible at his level; and 3) a Boeing personnel document showing the names, hire dates, and termination information — but not including any salary information — for Machine Assembly Techs starting in 1976.
Plaintiff's statement to his supervisor was made at least twenty-three months before plaintiff was discharged. This lapse is too long raise an inference of age discrimination. See Villiarimo, 281 F.3d at 1065 ("A nearly 18-month lapse between protected activity and an adverse employment action is simply too long, by itself, to give rise to an inference of causation.") (internal citations omitted). Plaintiff's assertion regarding his salary also fails to give rise to an inference of age discrimination, as plaintiff has failed to supply any evidence in support of this assertion. The Boeing personnel document plaintiff submitted to support this claim does not include any salary information about plaintiff or any other employee. See Pl.'s Opp. to Defs.' Mot. for Summ. J. Ex. 8. Finally, there is no evidence that Pyle, the human resources representative who discharged plaintiff, relied on anything but the Security Report when she made the decision to discharge plaintiff. The court finds that this very limited evidence is not sufficient to raise an inference of age discrimination. Accordingly the court finds that plaintiff has not presented sufficient evidence to establish a prima facie case of age discrimination under the ADEA.
ADEA retaliation claim Prima facie case
Plaintiff argues that he was discharged because he opposed a practice made unlawful under the ADEA. Specifically, plaintiff argues that his remark to Pulsinelli,"[M]aybe you are doing this to me because of my age," was a statutorily protected activity and a cause of his discharge.
An informal complaint to a supervisor can constitute a "protected activity." See Ray v. Henderson, 217 F.3d 1234, 1240 n. 3 (citing EEOC v. Hacienda Hotel, 881 F.2d 1504, 1514 (9th Cir. 1989)). Here, however, plaintiff's remark to his supervisor took place at least twenty-three months prior to the time of his discharged. To support an inference of retaliatory motive, the discharge must have occurred "`fairly soon after the employee's protected expression.'" Villiarimo, 281 F.3d at 1065 (quoting Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009-10 (7th Cir. 2000)). "A nearly 18-month lapse between protected activity and an adverse employment action is simply too long, by itself, to give rise to an inference of causation." Id. (citing Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009-10 (7th Cir. 2000)). This lapse, without more, is too long to give rise to an inference of causation. Furthermore, plaintiff has not argued that Pyle was aware of the comment plaintiff made to Pulsinelli or that her decision was in any way affected by that comment.
Therefore, the court finds that plaintiff has failed to establish a prima facie ADEA retaliation claim.
FMLA retaliation claimPrima facie case
To satisfy the first requirement of a prima facie case for FMLA retaliation, plaintiff argues that he was unlawfully denied FMLA leave and that he opposed the unlawful denial of FMLA leave. After a fire destroyed plaintiff's home in March 2002, plaintiff applied for FMLA leave and took twelve days off. Later, after he had already taken the leave, plaintiff was told that the leave was not permissible under the FMLA and was given a written warning for taking unexcused absences. Plaintiff felt that this warning was unfair because he had previously been told that he could take those days as FMLA leave. Plaintiff complained to Erdahl that he was being treated unfairly, and he appealed the written warning to Boeing's Extreme and Extenuating Circumstances Board. Defendants argue that plaintiff's statement to Erdahl does not constitute "opposition to an unlawful practice" because plaintiff did not assert that the twelve days should have been covered by the FMLA.
The court need not determine whether defendant Boeing's denial of FMLA leave was proper. For purposes of this summary judgment motion, the court assumes that defendants improperly denied plaintiff leave rightfully available to him under the FMLA and that plaintiff opposed that action by appealing the decision and complaining to his supervisor. Yet, even under this assumption, plaintiff fails to establish a prima facie FMLA retaliation claim because he presents no evidence indicating a causal connection between his opposition to the denial of FMLA leave and his discharge.
A causal connection is not indicated by the time span between the disagreement over plaintiff's unexcused absences and his discharge. Plaintiff was discharged roughly seven months after he petitioned Boeing to excuse the absences. While causation can be inferred from timing alone in some cases where an adverse employment action "follows on the heels" of protected activity, plaintiff's discharge did not follow on the heels of the FMLA dispute — it occurred seven months later. See Villiarimo, 281 F.3d at 1065.
Furthermore, plaintiff presents no evidence, nor does he argue, that Pyle's decision to discharge plaintiff was based on the incident with his FMLA leave. It is uncontroverted that Pyle's decision was based on the Security Report, which indicated that plaintiff was stealing food from the cafeteria. While plaintiff adamantly denies that he ever stole food from the cafeteria, he never asserts that Pyle knew of the FMLA dispute or of plaintiff's unexcused absences or that she relied on any information outside the Security Report in deciding to discharge plaintiff.
Accordingly, the court finds that plaintiff has failed to establish a prima facie FMLA retaliation claim.
Even if plaintiff could have established a prima facie case on one or more of the above claims, defendants have met their burden of alleging a nondiscriminatory reason for plaintiff's discharge, and plaintiff has failed to demonstrate that defendants' explanation is pretextual.
Defendants' alleged nondiscriminatory reason
Defendants allege a legitimate, nondiscriminatory reason for discharging plaintiff: plaintiff stole food from the cafeteria. The only inquiry at this point is whether defendants' purported reason, if true, would permit the conclusion that there was a nondiscriminatory reason for plaintiff's discharge. See Hicks, 509 U.S. at 509. It is uncontested that Pyle alone made the decision to discharge plaintiff based on a Security Report that included the statements of seven witnesses (including plaintiff). The report indicated that plaintiff stole food from the cafeteria. Theft is a violation of Boeing's Expected Conduct Standard. In his deposition, plaintiff himself stated that discharge would be an appropriate consequence for an employee who stole food from the cafeteria.
If defendants' purported reason for discharging plaintiff — that Pyle determined that he stole food from the cafeteria — is true, it would be permissible to conclude that there was a nondiscriminatory reason for his discharge. Therefore, the court finds that defendants have met their burden of production in putting forth a nondiscriminatory reason for plaintiff's discharge.
Plaintiff's showing that defendants' reason is pretextual
Because defendants have met their burden of demonstrating a nondiscriminatory reason for discharging plaintiff, plaintiff must present evidence beyond that necessary to establish his prima facie case in order to survive defendants' Motion for Summary Judgment. See Wallis, 26 F.3d at 890 (If "the prima face case consists of no more than the minimum necessary to create a presumption of discrimination under McDonnell Douglass, plaintiff has failed to raise a triable issue of fact.").
Plaintiff relies solely on circumstantial evidence to show that defendants' reason is pretextual. Plaintiff does not present any direct evidence of age discrimination to show pretext; there is no evidence "which, if believed, proves the fact [of discriminatory animus] without inference or presumption."
Plaintiff argues that he did not steal the eggs and that it is "ludicrous" to think that plaintiff stole the eggs. Plaintiff attacks the credibility of the Security Report, arguing that it contains unsworn testimony that is double hearsay. This argument misses the point. If Pyle believed that plaintiff stole food and relied only on the information in the Security Report in deciding to discharge plaintiff, it is irrelevant whether plaintiff actually stole food. In judging whether an employer's proffered justification is pretextual, it is not important whether it is objectively false. See Villiarimo, 281 F.3d at 1063. "Rather, courts `only require that an employer honestly believed its reason for its actions, even if its reason is `foolish or trivial or even baseless.'" Id. (citations omitted).
Plaintiff does not contest defendants' assertions that Pyle alone made the decision to discharge plaintiff and that Pyle did so solely based on the Security Report. Plaintiff has not suggested that Pyle knew that he did not steal the eggs or even that she personally had some other intent in discharging him. Plaintiff has presented no evidence that Pyle did not honestly believe and rely on the Security Report. As such, the court finds that plaintiff has failed to meet its burden of showing that defendants' alleged, nondiscriminatory reason for discharging plaintiff is pretextual. Accordingly, defendants' Motion for Summary Judgment is granted with respect to plaintiff's ADEA discrimination claim, ADEA retaliation claim, and FMLA retaliation claim.
Wrongful discharge claim
Plaintiff alleges that the reason he was discharged was because he opposed unlawful age discrimination and the denial of FMLA leave. Plaintiff must demonstrate a causal connection between any "rightful resistance" to unlawful discrimination and his discharge. See Holien, 689 P.2d at 1300; Pascoe v. Mentor Graphics Corp., 199 F. Supp .2d 1034, 1053 (D. Or. 2001). In support of his wrongful termination claim based on age discrimination, plaintiff puts forth a single piece of evidence: the comment plaintiff made to Pulsinelli at least twenty-three months prior to his discharge. Plaintiff puts forth no evidence establishing a causal connection between the age-related comment and his discharge.
To support his wrongful termination claim based on the FMLA, plaintiff argues that he was denied FMLA leave, that he opposed the denial of FMLA leave, and that he was discharged in retaliation for this opposition. Plaintiff appealed his written warning for unexcused absences in July 2002, and plaintiff was discharged on January 30, 2003. Even assuming plaintiff's opposition constituted "rightful resistance," this seven month time span alone is not short enough to establish a causal connection between the two incidents. Furthermore, plaintiff failed to establish any causal connection between Pyle's decision to discharge him and the FMLA incident. Plaintiff does not controvert defendants' assertions that Pyle was unaware of plaintiff's problems regarding FMLA leave and his warning for absenteeism, that Pyle alone made the decision to discharge plaintiff, and that Pyle's decision was based only the Security Report. Accordingly, defendants' Motion for Summary Judgment on plaintiff's wrongful termination claim is granted.
CONCLUSION
For the foregoing reasons, defendants' Motion for Summary Judgment (Doc. #23) is GRANTED in full.
IT IS SO ORDERED.