Opinion
3:21-cv-01774-YY
11-20-2023
LUKE FONTAINE, Plaintiff, v. MCRT RESOURCES LLC, Defendant.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge.
FINDINGS
Currently pending in this employment discrimination suit is defendant's motion for summary judgment. ECF 31. Because plaintiff has produced evidence sufficient to create a genuine dispute over whether defendant's adverse employment actions were a pretext for discrimination and unlawful retaliation, defendant's motion should be denied as to those claims. Defendant's motion should be granted, however, as to plaintiff's hostile work environment claim under Oregon law because defendant's conduct was not sufficiently severe or pervasive to sustain it.
I. Background
Plaintiff Luke Fontaine identifies as a person of color and is openly gay. Defendant MCRT Resources, LLC operates several residential rental properties in Portland. Plaintiff began working for defendant as a leasing consultant at Modera Pearl, an apartment building in northwest Portland, in January of 2019. Plaintiff took the job in part because it promised more opportunity to build on his marketing degree and career. After a few months on the job, plaintiff became the property's social media lead handling Instagram. Amber Crudele was Modera Pearl's community manager at the time plaintiff was hired. In September of 2019, plaintiff moved into an apartment onsite at a discounted rate in exchange for assisting with after-hours tenant calls and emergencies. Mostly, things appeared to be going well; Crudele said she liked working with plaintiff, and a performance review from December of 2019 was generally positive regarding plaintiff's work and led to him getting the highest possible raise.
Fontaine Decl. ¶¶ 2-3, ECF 41.
Mot. Summ. J. 3, ECF 31. Defendant's motion identifies “Mill Creek Residential Trust, LLC” as the defendant entity. Id. The parties, however, previously informed the court through a stipulated motion that “the correct entity is MCRT Resources LLC.” ECF 14.
Fontaine Decl. ¶ 11, ECF 41.
Id. ¶ 17.
Id.
Snyder Decl. Ex. 17. (Crudele Dep. 9:1-10), ECF 40-17.
Fontaine Decl. ¶ 13, ECF 41.
Crudele Dep. at 23:14-16, ECF 40-17.
See Snyder Decl. Ex. 1 at 1-2, ECF 40-1; id., Ex. 16 (Rountree Dep. 20:20-24), ECF 4-16; Fontaine Decl. ¶ 18, ECF 41.
In March of 2020, in response to the COVID-19 pandemic, Modera Pearl made several workplace adjustments. The leasing agents moved into private offices to avoid in-person contact with tenants, and no one staffed the tenant reception desk. Agents stopped giving guided in- person tours in favor of virtual or self-guided in-person tours for prospective tenants. Plaintiff requested a schedule adjustment to have Sundays off, and Crudele granted the request in April of 2020, in part because the offices were closed to the public at that time.
Fontaine Decl. ¶ 23, ECF 41.
Id.
Id. ¶ 24; Crudele Dep. 34:2-15, ECF 40-17.
In June of 2020, Crudele left her position as community manager at Modera Pearl to take another position within the company, and she was replaced by Heather Rountree soon thereafter. Almost immediately, the tenor of plaintiff's working relationship with management changed, and it was not long before plaintiff was terminated in September of 2020. This case turns on the parties' competing narratives about what happened in those three months. As defendant tells it, plaintiff became “combative and insubordinate” after he “had a disagreement with the . . . corporate office about what holidays it would recognize on social media, or what it would post relating to those holidays.” Mot. Summ. J. 2, ECF 31. The holiday in question was Juneteenth; the social media post that plaintiff made in celebration of that holiday and defendant's reaction to it are central to the dispute. Defendant asserts that the post violated company policy, and after management had a “disagreement” with plaintiff over it, plaintiff's work performance became substandard: he stopped posting on social media altogether, he stopped helping tenants or giving tours, he caused interpersonal problems and became “insubordinate” with Rountree and other supervisors, and he demanded to have Sundays off for shifting and questionable reasons. Id. at 2-3.
Crudele Dep. 9:8-16, ECF 40-17.
Fontaine Decl. ¶ 26, ECF 41.
Id. ¶ 70.
According to plaintiff, his termination was discriminatory and in retaliation for complaining about the company's lack of diversity and what he perceived as unfair treatment towards him based on his race and sexual orientation in the weeks leading up to Juneteenth and after. Resp. 18-19, ECF 39. Plaintiff states that, among other things, Rountree made several offensive comments about his hair, skin color, and the type of shoes he wore, and that he reported this and other unfair treatment to management. Id. at 10-14. Plaintiff also asserts that the various work performance issues that defendant identified as the basis for his termination were inconsistently enforced, contrary to company practice or policy at the time, or otherwise do not hold up to scrutiny, and were instead a pretext for terminating him. Id. at 23-24.
Defendant has moved for summary judgment against all of plaintiff's claims, which include employment discrimination and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, employment discrimination and retaliation under Oregon law, specifically O.R.S. § 659A.030, and whistleblower retaliation under O.R.S. § 659A.199. Compl. ¶¶ 28-73, ECF 1.
II. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.' ” Id. at 324 (citing FED. R. CIV. P. 56(e)).
The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
III. Discussion
A. Discrimination Claims Under Federal and State Law
Plaintiff's first and second claims allege that defendant discriminated against him because of his race, gender or sexual orientation, and religion in violation of federal and state civil rights laws. Compl. ¶¶ 28- 64, ECF 1. Employees suffer intentional discrimination, also known as “disparate treatment,” when they are “singled out and treated less favorably than others similarly situated” because of their protected class. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). “Where direct evidence is unavailable, plaintiffs can, and frequently do, rely on the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973), as a way of channeling inquiry into the available circumstantial evidence.” Ballou v. McElvain, 29 F.4th 413, 422 (9th Cir. 2022).
Plaintiff's retaliation claims under federal and state law are addressed separately below.
The McDonnell Douglas framework has three steps. First, the employee must establish a prima facie case of discrimination. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002). “If the plaintiff establishes a prima facie case, the burden of production-but not persuasion-then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action.” Id. If the employer does so, the plaintiff must then show that the employer's reason is pretextual. Id. “A plaintiff alleging employment discrimination need produce very little evidence in order to overcome an employer's motion for summary judgment.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (citation and quotation marks omitted). “This is because the ultimate question is one that can only be resolved through a searching inquiry-one that is most appropriately conducted by a factfinder, upon a full record.” Id. “In evaluating motions for summary judgment in the context of employment discrimination, [the Ninth Circuit has] emphasized the importance of zealously guarding an employee's right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004).
The burden-shifting framework applies to discrimination claims brought under Title VII and O.R.S. § 659A.030. Tornabene v. Nw. Permanente, P.C., 156 F.Supp.3d 1234, 1242 (D. Or. 2015) (“The substantive analysis for discrimination under Title VII of the Civil Rights Act (42 U.S.C. § 2000e-2(a)) and ORS § 659A.030(b) is substantially similar, and courts often analyze such claims together.”). Thus, plaintiff's federal and state law discrimination claims are analyzed together.
1. Prima Facie Case
To establish a prima facie case of discrimination, plaintiff must show that (1) he belongs to a protected class, (2) he was performing according to his employer's legitimate expectations, (3) he suffered an adverse employment action, and (4) similarly situated employees who were not members of the protected class were treated more favorably, or “other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Reynaga v. Roseburg Forest Prod., 847 F.3d 678, 691 (9th Cir. 2017). The proof necessary to establish a prima facie case for Title VII at summary judgment is “minimal” and need not be based on a preponderance of the evidence. Villiarimo, 281 F.3d at 1062.
The first and third elements here are not contested. Defendant disputes whether plaintiff's performance met defendant's legitimate expectations and whether similarly situated employees were treated differently. Mot. Summ. J. 11-12, ECF 31.
The showing required to establish satisfactory job performance at the prima facie stage is “minimal,” and plaintiff has met that showing here. Karthauser v. Columbia 9-1-1 Commc'ns Dist., No. 3:20-cv-00127-SI, 2022 WL 17979739, at *5 (D. Or. Dec. 28, 2022) (citing Douglas v. Anderson, 656 F.2d 528, 533 n.5 (9th Cir. 1981)). The only performance review in the record is from December 5, 2019. Defendant asserts that it shows plaintiff's “closing ratio,” that is, his rate of successfully leasing a unit to a new resident, “fell well below team average,” and plaintiff “regularly failed to produce marketing posts . . . at the baseline volume required.” Mot. Summ. J. 4, ECF 31. But plaintiff's 13.2% closing ratio was only slightly trailing the team average of 15%, and both were well short of the “common goal” of a 30% closing ratio. The comments on plaintiff's performance review suggest that “high traffic, saturated market place and competitive concessions” had hampered the team's ability as a whole to meet that goal. While plaintiff was encouraged to “strive for the minimum of 3 posts on social media per week,” the comments also state that Modera Pearl's “social media influence (number of followers and active engagement) [had] increased” since plaintiff took over as social media lead. The performance review further states that plaintiff was “a pleasure to have in the office” and was “thoughtful in both work and personal relationships.” Though the performance review identifies some “areas of development,” Roundtree admitted during her deposition that the review was generally positive, and plaintiff states that he received the “maximum salary increase” as a result.
Snyder Decl. Ex. 1, ECF 40-1.
Id.
Id.
Id. at 2.
Id.
Rountree Dep. 20:20-24, ECF 40-16.
Fontaine Decl. ¶ 18, ECF 41.
With this evidence, plaintiff has satisfied his “minimal” burden of establishing a prima facie showing that he was performing according to his employer's legitimate expectations. Defendant's evidence regarding plaintiff's unsatisfactory job performance is properly considered as part of the later, more lengthy analysis regarding whether the reasons defendant gave for terminating plaintiff were a pretext for discrimination. See Karthauser, 2022 WL 17979739 at *5 (explaining difference between prima facie and pretext analysis).
As for the fourth element, there is some evidence that similarly situated employees were treated more favorably than plaintiff. See Reynaga, 847 F.3d at 691 (explaining that one way a plaintiff can establish the prima facie case is evidence of “circumstances surrounding the adverse employment action [that] give rise to an inference of discrimination”). Plaintiff's unwillingness to post on social media is one of the main reasons defendant gives for terminating plaintiff; however, River Starnes, a white, heterosexual male, was also a leasing consultant and was allowed to step down from the social media lead position without any negative consequences.Mot. Summ. J. 11, ECF 31; Resp. 23, ECF 39. Starnes also requested and was granted a transfer and a more flexible schedule to accommodate his university schedule. When plaintiff asked for Sundays off so he could attend church or engage in other religious practices, defendant allowed for some Sundays off but did not permanently adjust his schedule. Even though one of plaintiff's co-workers specifically offered to switch schedules with plaintiff so he could have Sundays off, Roundtree refused to make the change. Defendant vigorously disputes the reasons plaintiff gave for wanting Sundays off, and also asserts that plaintiff was provided Sundays off when possible. However, resolving those issues and weighing that evidence is for the jury, and not the court at summary judgment. See Randall v. United Parcel Service, Inc., No. 3:17-cv-00807-HZ, 2018 WL 4955197, at *9 (D. Or. October 12, 2018) (denying summary judgment where there were questions of fact as to plaintiff's prima facie case and plaintiff produced evidence that could be construed as suggesting discriminatory motive). Plaintiff has met the “minimal” threshold to establish a prima facie showing that similarly situated employees who were not members of the protected class were treated more favorably.
Id. ¶ 17.
Id. ¶¶ 17, 46-47.
Bolesky Decl. Ex. M (Rountree Dep. 58:13-18), ECF 32-1.
Snyder Decl. Ex. 18 (Levesque Dep. 28:11-29:13), ECF 40-18.
2. Legitimate, Nondiscriminatory Reasons
Defendant asserts that plaintiff was terminated because of “his poor performance including his failures to post social media updates, his attendance, and other failures to follow company policy,” and other workplace issues such as “not hanging flyers as asked by supervisor, locking his office door, [and] not being present to answer phone.” Reply 13, ECF 47. These are sufficient to carry the burden of offering legitimate, nondiscriminatory reasons for terminating plaintiff. See Karthauser, 2022 WL 17979739 at *6.
3. Pretext
The burden now shifts back to plaintiff to show that defendant's proffered reasons were a pretext for discrimination. “A plaintiff can prove pretext in multiple ways, either: (1) directly, by showing that unlawful discrimination more likely [than not] motivated the employer; (2) indirectly, by showing that the employer's proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable; or via a combination of these two kinds of evidence.” Opara v. Yellen, 57 F.4th 709, 723 (9th Cir. 2023) (alteration in original, simplified) (citing Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)). “Under any approach, generally, very little evidence is necessary to raise a genuine issue of fact regarding an employer's motive.” Id. (simplified) (citing McGinest, 360 F.3d at 1124). The Ninth Circuit has held that, “when the plaintiff relies on circumstantial evidence, that evidence must be specific and substantial.” Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005) (internal quotation marks omitted). However, that requirement is “tempered” by the “observation that a plaintiff's burden to raise a triable issue of pretext is ‘hardly an onerous one.'” Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011) (citations omitted).
The Ninth Circuit has recognized, in dicta, that “[t]here is some question” whether the specific and substantial “distinction for circumstantial evidence is valid after the Supreme Court's Costa decision which placed direct and circumstantial evidence on an equal footing.” France v. Johnson, 795 F.3d 1170, 1175 (9th Cir. 2015) (discussing Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)) (citations omitted).
Here, plaintiff has produced specific and substantial circumstantial evidence that defendant's reasons for terminating him were pretextual. For example, defendant claims that plaintiff “locked the office door, put on headphones, and ignored calls.” Mot. Summ. J. 7, ECF 31. But plaintiff asserts that management encouraged him to lock the office door to avoid inperson contact with tenants during the height of the COVID-19 pandemic, and that it was a common practice in the office to wear headphones. Defendant contends that plaintiff “failed to present for tenant tours that he had booked.” Id. But plaintiff attests that all in-person guided tours had been suspended and that prospective tenants were using virtual or self-guided tours.
Resp. 23-24, ECF 39; Fontaine Decl. ¶ 54, ECF 41.
Resp. 23, ECF 39; Fontaine Decl. ¶ 63, ECF 41; Bolesky Decl. Ex. H (Crudele Dep. 34:2325), ECF 32-1; Levesque Dep. 26:18-27:2, ECF 40-18.
And there is other circumstantial evidence of pretext here. Plaintiff contends that soon after Rountree became the community manager and his direct supervisor in June of 2020, Roundtree made several comments about plaintiff's “ethnically black styled hair” and repeatedly asked to touch it. Later in July, plaintiff overheard Rountree refer to him as her “African” and “brown” coworker. Several times, plaintiff heard Rountree laughingly criticize his work shoes as “heels,” or “little heels,” and she described plaintiff as “tap dancing down the hallway.” These statements, especially in the context of the other events surrounding plaintiff's termination, could be interpreted as evidence of discriminatory motive. See Davis, 520 F.3d at 1092 (“If the statements are not direct evidence of pretext, they are at the least circumstantial evidence from which a jury could infer pretext.”). Defendant denies that Rountree made those statements, but the question of whom to believe is for the jury, not the court, to decide. See Reply 13, ECF 47.
Fontaine Decl. ¶ 31, ECF 41.
Id. ¶ 44.
Id. ¶ 50.
Further, in early June of 2020, plaintiff emailed and spoke on the phone with Steve Prochnow, the executive vice president of property management, about plaintiff's belief that the company “did not support Black people” because, at least in part, the company had “not want[ed] to engage and [gave] the strong impression for us not to engage” in the public dialogue about the George Floyd protests. Plaintiff also complained to Prochnow that he “was having a really hard time in [the] office . . . with the way that [he] was being treated.” The two had several email exchanges and phone calls about diversity within the company and what the company could “do to be more inclusive and support the black community and other minorities.” They talked several times about having plaintiff join a yet-to-be-formed diversity committee, though there is no evidence that any such committee was ever formed before plaintiff was terminated in September of 2020.
Id. ¶ 27.
Snyder Decl. Ex. 2 at 1, ECF 40-2; Fontaine Decl. ¶ 27, ECF 4.
Bolesky Decl. Ex. C (Fontaine Dep. 133:18-22), ECF 32-1.
Snyder Decl. Ex. 3 at 1, ECF 40-3.
Id., Ex. 5 at 1, ECF 40-5; id., Ex. 6 at 2, ECF 40-6.
On June 19, 2020, the Juneteenth holiday, plaintiff posted photos he took of “Black Lives Matter” or similar signs made by Modera Pearl residents to the company's social media.According to defendant, plaintiff's Juneteenth post contained content that he “had been warned to avoid” and then when he was coached about it, he essentially stopped posting any content and “refus[ed] to provide others with login information needed to access the social media account.” Mot. Summ. J. 11-12, ECF 31. Defendant's vice president of marketing noticed plaintiff's post and emailed Prochnow about it:
Bolesky Decl. Ex. K at 1-6, ECF 32-1.
I wanted to bring the attached to your attention. While this was on Instagram, I can't see who posted it to the Modera Pearl account -but wanted to loop you in since it is a deviation from our standard post that we provided. Please follow up with the team regarding this as I am only monitoring and escalating up to you all as needed.
Id., Ex. F at 2, ECF 32-1.
There is no evidence in the record showing what the “standard post” was or when it was distributed and to whom. Defendant has not identified evidence establishing the company's “standards” for social media postings or that plaintiff was “warned to avoid” certain topics before making the Juneteenth post. Resp. 22, ECF 39. The employee handbook's section on social media does not provide any content-specific guidelines that would have applied to plaintiff's postings here. And plaintiff testified that management had expressed to him that he had “creative freedom . . . when it came to social media posts.” On June 20, 2020, plaintiff emailed the marketing department expressing his concern that there “was no post created or encouraged for onsite members” for the Juneteenth holiday when, by contrast, the company had provided numerous other posts for other holidays and celebrations like Mother's Day and Nurse's day. Resp. 11, ECF 39.
Defendant asserts that plaintiff was “reminded . . . that he could post freely on his personal accounts, but decisions regarding ‘issues' based content on its corporate account must pass through an approval process.” Mot. Summ. J. 5, ECF 31 (citing Bolesky Decl. Ex. F). However, the exhibit defendant cites does not support that assertion in any way.
See Bolesky Decl. Ex. E at 46-48, ECF 32-1 (prohibiting, among other things, posting “proprietary, copyrighted, confidential, defamatory, harassing, or pornographic material”).
Fontaine Dep.122:12-14, ECF 32-1.
See also Snyder Decl. Ex. 4 at 1, ECF 40-4.
At some point following the Juneteenth post, both Rountree and Prochnow talked to plaintiff about it; according to plaintiff, Prochnow told him that Juneteenth would not be celebrated by the company. On July 16, 2020, Roundtree emailed plaintiff a request to “start posting at least a few times a week” on social media. On July 20, 2020, Rountree again emailed that “there are still no Instragram posts . . . since June 19” and directed plaintiff to “follow through with posting at least three times per week.” On July 22, 2020, plaintiff responded:
Fontaine Decl. ¶ 34-36, ECF 41.
Bolesky Decl. Ex. L at 3, ECF 32-1.
Id. at 2.
If I'm going to get in “trouble” or have to be spoken with for posting content as I did on a black holiday like Jun[e]teenth, I'm not interested in being the social media lead here anymore.
Id. at 1-3.
A few minutes later, plaintiff emailed Rountree for an update on his request to have Sundays off for “religious reasons.” Rountree told plaintiff that because the other leasing agent who had been working on Sunday had recently been transferred, Sundays off were “not . . . an option” until the property was “at 90%.” As mentioned above, however, one of plaintiff's co-workers had offered to switch her schedule to allow plaintiff to have Sundays off, but Rountree refused to make the change.
Id., Ex. N at 2, ECF 32-1.
Id. at 1.
Levesque Dep. 28:11-29:13, ECF 40-18.
Rountree emailed plaintiff later and asked him to provide the login information for the social media accounts if plaintiff wanted the “task to go to someone else,” and the parties dispute whether plaintiff provided the requested credentials. On that same day, plaintiff claims he spoke to Regional Manager Tim Jellum about his belief that “he was being treated differently because of his race and sexual orientation.” Resp. 14, ECF 39. Rountree, too, spoke with Jellum on July 22, 2020, and in a subsequent email to Paula Wing, a human resources associate, Rountree documented her “concerns” that plaintiff had not posted as requested to social media since June 19, 2020, and was now requesting Sundays off “for religious reasons.” Rountree sent several other emails over the following weeks documenting her concerns about plaintiff's work performance and other issues, though there is no evidence in the record that plaintiff was ever given a written warning or other formal reprimand before being terminated in September of 2020.
Snyder Decl. Ex. 8 at 1, ECF 40-8; Fontaine Decl. ¶ 56, ECF 41.
Bolesky Decl. Ex. O at 1, ECF 32-1; Snyder Decl. Ex. 15 (Jellum Dep. 25:8-10), ECF 40-15.
It is undisputed that plaintiff was at times not meeting the “three posts per week” minimum that Rountree wanted. But there is evidence here that defendant's dissatisfaction with plaintiff's marketing work on social media was a pretext for discrimination. Rountree's comments are evidence of bias against plaintiff based on race and sexual orientation, as is her refusal to accommodate plaintiff's schedule request where a white, heterosexual male had recently been granted the same accommodation and a co-worker offered to change her schedule to cover the Sunday shifts that plaintiff requested. There are also disputes of fact as to the policies defendant had in place regarding social media posting and whether plaintiff's Juneteenth post actually violated them. See Randall, 2018 WL 4955197 at *10 (denying summary judgment where there were disputed issues of fact as to plaintiff's alleged violation of company policy). And the close timing between plaintiff's complaints about his mistreatment and the company's lack of diversity, and the increased scrutiny over his work performance, are evidence that defendant's stated reasons for plaintiff's termination are pretextual. See France v. Johnson, 795 F.3d 1170, 1177 (9th Cir. 2015) (noting that the timing of relevant workplace incidents can be circumstantial evidence of pretext).
Sndyer Decl. Ex. 1 at 2, ECF 40-1 (“Although our numbers as it relates to engagement have increased, Luke should continue to strive for the minimum of 3 posts on social media per week. Last year Modera Pearl only averaged 6 posts per month.”).
Defendant argues that plaintiff's uncorroborated and self-serving testimony, without more, cannot create a genuine issue of material fact. Mot. Summ. J. 9, ECF 47 (citing Villiarimo, 281 F.3d at 1061); see also Opara, 57 F.4th at 726. Defendant contends that plaintiff's evidence of pretext relies solely on “stray comments” and that the “mere utterance of an ethnic or racial epithet” is insufficient. Reply 13, ECF 47 (citing Garcez v. Freightliner Corp., 188 Or.App. 397, 408 (2003)). But plaintiff has presented more than just stray comments. See Warren v. City of Carlsbad, 58 F.3d 439, 443-44 (holding evidence that less-qualified white employees were promoted over the plaintiff, combined with subjective hiring criteria and racist remarks constituted circumstantial evidence of the employer's motive). Moreover, even if this were a “close case” of pretext, “[s]uch uncertainty at the summary judgment stage must be resolved in favor of the plaintiff.” McGinest, 360 F.3d at 1124; Peacock v. DuVal, 694 F.2d 644, 646 (9th Cir. 1982) (recognizing “the decision as to an employer's true motivation plainly is one reserved to the trier of fact”). Because plaintiff has met the “hardly . . . onerous” standard for showing defendant's reasons for terminating him were pretextual, defendant cannot prevail on summary judgment regarding plaintiff's discrimination claims. Earl, 658 F.3d at 1113.
B. Retaliation Claims Under Federal and State Law
To establish a prima facie case of retaliation under Title VII, O.R.S. § 659A.030, or O.R.S. § 659A.199, plaintiff must show that (1) he was engaged in a protected activity, (2) he suffered an adverse employment decision, and (3) there was a causal link between the protected activity and the adverse employment decision. Sandberg v. City of N. Plains, No. 3:10-cv-01273-HZ, 2012 WL 602434, at *6 (D. Or. Feb. 22, 2012); see also Thomas v. Lake Cnty., No. 1:13-cv-00852-CL, 2015 WL 164831, at *8 (D. Or. Jan. 13, 2015) (explaining similarities between tests applicable to retaliation claims under federal and Oregon law). Plaintiff's federal and state law retaliation claims are subject to the same burden-shifting framework as the disparate treatment claims. Tornabene, 156 F.Supp.3d at 1248; see also Dawson v. Entek Int'l, 630 F.3d 928, 936 (9th Cir. 2011) (applying McDonnell Douglas burden shifting to Oregon retaliation claim). To establish causation, plaintiff must show 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, 281 F.3d at 1065; see also Bahri v. Home Depot USA, Inc., 242 F.Supp.2d 922, 953 (D. Or. 2002) (explaining that Oregon uses a similar “substantial factor test to determine whether the plaintiff's protected activities were the cause of defendant's adverse actions”).
Plaintiff asserts that he engaged in protected activity when he requested a schedule change to have Sundays off to “allow for the practice of his religion” sometime in July of 2020, and that he was terminated shortly thereafter in September of 2020. Resp. 24, ECF 39. Defendant counters that plaintiff had been asking for Sundays off from the beginning of his employment, and thus plaintiff cannot establish the causal connection between his purportedly ongoing request to have Sundays off and his termination in September of 2020. Reply 15, ECF 47. Defendant also points out that plaintiff did, in fact, get Sundays off “whenever possible.” Id.
Those points do not, however, account for the timing of plaintiff's request in July of 2020 and the circumstances surrounding plaintiff's employment during this period. Plaintiff's previous supervisor, Crudele, had granted plaintiff's schedule modification to allow him Sundays off in April of 2020. In July of 2020, Starnes, who had been working at Modera Pearl on Sundays, requested and was granted a transfer to a different property as an accommodation for his school schedule. Around that same time, plaintiff began reporting to Prochnow and Jellum, the regional manager, about the lack of diversity at the company and that he felt he was being discriminated against based on his race and sexual orientation, in part due to comments Rountree had made about his appearance. Soon after, Rountree told plaintiff that she wanted him to start working again on Sundays, and plaintiff objected on July 23, 2020, because he wanted Sundays off as part of his “religious expression.” Plaintiff was terminated a few weeks later on September 3, 2020.
Fontaine Decl. ¶ 24, ECF 41; Levesque Dep. 16:25-17:3, ECF 40-18.
Rountree Dep. 50:3-7, ECF 40-16; Fontaine Decl. ¶¶ 46-47, ECF 41.
See Fontaine Decl. ¶¶ 28, 54, ECF 41.
Bolesky Decl. Ex. 9 at 1, ECF 32-1.
The temporal proximity between plaintiff's renewed request to have Sundays off in late July and his termination in early September is sufficiently close to infer causation, especially when considering other evidence, such as the favorable accommodation offered to a white, heterosexual male around the same time. See Villiarimo, 281 F.3d at 1065 (explaining that “causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity”); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000) (noting that causation can be inferred from timing alone); see also Miller v. Fairchild Indus., 885 F.2d 498, 505 (9th Cir. 1989) (prima facie case of causation was established when discharges occurred forty-two and fifty-nine days after EEOC hearings).
And while plaintiff's purported “poor performance” and other work issues are a legitimate, nondiscriminatory reason for his termination, there is sufficient evidence to support the conclusion that defendant's proffered nondiscriminatory reasons for firing plaintiff were pretextual. In addition to the evidence discussed above regarding plaintiff's disparate treatment claim, plaintiff reported to Jellum and Rountree that he believed he was being discriminated against, and both were involved in the decision to terminate him shortly after those reports. See Erickson v. Biogen, Inc., No. C18-1029-JCC, 2020 WL 885743, at *2 (W.D. Wash. Feb. 24, 2020) (affirming jury verdict in plaintiff's favor based in part on evidence that two people who knew about plaintiff's report were involved in plaintiff's discharge shortly after the reports). These and the other disputed facts regarding the rapid deterioration of the working relationship after Rountree took over as community manager and plaintiff began raising issues about his perceived unfair treatment on the basis of his race, sexual orientation, and religious practices are sufficient to raise a question of fact as to whether defendant's actions were a pretext for discrimination. See Davis, 520 F.3d at 1089 (explaining that plaintiffs “alleging employment discrimination need produce very little evidence in order to overcome an employer's motion for summary judgment . . . because the ultimate question is one that can only be resolved through a searching inquiry-one that is most appropriately conducted by a factfinder, upon a full record”).
C. Hostile Work Environment Claims Under State Law
Defendant also moves for summary judgment on plaintiff's state law hostile work environment claim. Mot. Summ. J. 13-15. ECF 31. Although plaintiff alleged in the complaint that defendant “allowed a hostile work environment to exist for Plaintiff because of his religion, national origin, gender, and sexual orientation,” plaintiff did not offer any argument or cite any evidence in support of his hostile work environment claim in response to defendant's motion. See Compl. ¶ 49, ECF 1; Resp. 22-26, ECF 39.
The evidence in the record is not sufficient to avoid summary judgment on this claim. See Cristobal v. Siegel, 26 F.3d 1488, 1494-95 (9th Cir. 1994) (explaining that moving party must demonstrate the “absence of any material fact . . . even when the party against whom the motion for summary judgment is directed has not filed any opposition”) (citations omitted). Whether based on race, gender, or sexual orientation, a successful hostile work environment claim requires the plaintiff to demonstrate that the defendant engaged in unwanted verbal or physical conduct that was “sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment.” Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003); see also Hunter v. Redhawk Network Sec. LLC, No. 6:17-cv-00962-MK, 2019 WL 13269516, at *9 (D. Or. Nov. 22, 2019) (discussing hostile work environment claim based on sexual orientation). “The plaintiff must show that the work environment was both subjectively and objectively hostile.” Reynaga, 847 F.3d at 687. “In assessing whether a work environment is sufficiently hostile, the court examines 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.” Id. (simplified). “The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.” Id.
Even drawing all inferences in plaintiff's favor, defendant's conduct and statements were not so patently offensive, pervasive, or extreme to create a genuine issue of material fact as to plaintiff's hostile work environment claim. Compare Heller v. Columbia Edgewater Country Club, 195 F.Supp.2d 1212, 1217-18, 1225 (D. Or. 2002) (dispute whether there were “only 22 or 23” derogatory comments over 9 months or whether they were made “daily [as] kind of an ongoing monologue” was immaterial because either situation was sufficiently pervasive to suggest a hostile environment), and Woods v. Graphic Commc'ns, 925 F.2d 1195, 1197-98 (9th Cir. 1991) (working environment was “polluted” with discrimination where “racial jokes, cartoons, comments and other forms of hostility directed at almost every conceivable racial and ethnic group . . . were common at the plant”), with Kortan v. California Youth Authority, 217 F.3d 1104, 1110 (9th Cir. 2000) (finding no hostile work environment where supervisor on one or two prior occasions called a female employee other than plaintiff a “castrating bitch,” “madonna,” or “regina,” and referred to plaintiff several times as “Medea,” not “Artemis”), and Shepherd v. City of Salem, 320 F.Supp.2d 1049, 1057 (D. Or. 2004) (finding evidence that supervisor made a sexual advance toward plaintiff and made comments generating at least 20 complaints from plaintiff, among other things, was insufficient to raise a triable issue on hostile environment).
RECOMMENDATIONS
Defendant's motion for summary judgment (ECF 31) should be denied as to plaintiff's discrimination and retaliation claims, and granted as to plaintiff's hostile work environment claim.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Wednesday, August 09, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.