Opinion
Civil No. 02-1016-HA.
August 17, 2004
Daniel Snyder, Law Offices of Daniel Snyder, Portland, Oregon, Attorney for Plaintiffs.
Jenifer J. Johnston, Office of the City Attorney, Portland, Oregon, Attorney for Defendant.
AMENDED OPINION AND ORDER
The Opinion and Order issued on June 14, 2004, is amended so as to include a specific ruling on plaintiffs' Section 1983 claim on race and gender. (See page 20).
This is an employment case filed in July 2002 by plaintiffs against the City of Portland The first claim is brought under Title VII and O.R.S. 659A.030 alleging race and gender discrimination. The second claim is brought under 42 U.S.C. § 1983 for violations of plaintiffs' right to free speech and association under the First and Fourteenth Amendments of the United States Constitution. Pending now are defendant's Motion for Summary Judgment (Doc. #56), defendant's Motion to Strike (Doc. #97), and plaintiffs' motions to strike (Docs. #84, 108).
On May 24, 2004, the court heard oral argument on these motions. For the following reasons defendant's Motion for Summary Judgment is granted in part and denied in part.
FACTUAL BACKGROUND
On a motion for summary judgment, all allegations of fact are to be construed in the light most favorable to the non-moving party. T.W. Elec. Serv. v. Pac. Elec. Contractors, 809 F.2d 626, 630 (9th Cir. 1987). Therefore, insofar as the parties' factual allegations differ, the court gives deference to the plaintiffs' summary of the facts.
Plaintiffs are African-American women who worked for the City of Portland in the Office of Planning and Development Review (OPDR). Plaintiff Roxie Granville (Granville) worked for defendant from 1975 through June 1991 on a part-time basis in the Parks and Recreation department and in the planning section of the Office of Transportation. On June 10, 1991, Granville began working for defendant in the OPDR as a Field Representative. As a Field Representative, Granville was assigned to enforce the City of Portland Zoning Codes at residential and commercial sites. A significant part of Granville's work as a Field Representative involved interacting with other inspectors and employees of defendant, most of whom are Caucasian. During her employment with defendant, Granville's job title changed from Field Representative to Code Specialist II, although her job duties were similar.
Plaintiff Lisa Washington (Washington) began working for defendant in 1991 as an assistant to the Commissioner of Public Affairs. In June 1995, Washington transferred to the OPDR, Code Compliance, and worked in the Noise Control Office. Washington was also classified as a Code Specialist II. As with Granville, a significant part of Washington's work involved interacting with other inspectors and employees of defendant, most of whom are Caucasian. Beginning in 1999, plaintiffs were assigned to overlapping geographic districts, and they often worked together.
Plaintiffs were supervised by the managing agents of defendant, including Sterling Bennett (Bennett), Denise Kleim (Kleim), Greg Kaufman (Kaufman), Margaret Mahoney (Mahoney), Paul Scarlett (Scarlett), and Stanley Scotton (Scotton). All of these managing agents are Caucasian.
On February 14, 1997, Supervisor Bennett spoke to plaintiffs at their workstations. He told them, "You two were seen together." Pls.' Compl. at ¶ 17. When plaintiffs asked Bennett what he meant, Bennett replied, "You were seen together walking down the street together." Id. The following day, Section Manager Kleim approached Washington concerning Bennett's comments. Kleim said she was the one who saw plaintiffs walking down the street and assumed they were going to travel together without permission from their supervisor.
About two weeks later, plaintiffs met with Kleim and Bennett to address their concerns. Kleim first said her perception was that plaintiffs were not working, but then retracted that statement and said she thought plaintiffs were going "out in the field" together. Kleim stated that plaintiffs needed to inform their supervisor when they were in the field together. Plaintiffs explained that they were on break at the time Kleim saw them. Plaintiffs also informed Kleim that they wanted any new designated break and ride-along policies to be applicable to the entire OPDR staff.
In February 1997, Bennett met with the Code Compliance staff and told them to be aware of when the staff members took their breaks, lunch, and leaves so that there would be no misunderstandings regarding employees' whereabouts. Defendant then hired a facilitator, Lisa Burk, to meet with the Code Compliance staff. Two years later, in May 1999, Burk issued a report stating that the staff members felt that the African-American employees were too cliquish and that plaintiffs were friends outside of work. Burk also reported that Kleim said she felt intimidated by plaintiffs.
Shortly thereafter, plaintiff Washington attended a Code Compliance retreat. During the retreat, Caucasian staff members told Washington that she should inform plaintiff Granville that the "race issue" needed to be discussed and that plaintiffs should "get over it." Pls.' Compl. at ¶ 23. Supervisors then determined that Code Compliance would post an in/out board to record when staff members left the office and returned, and that staff members should obtain permission from a supervisor to walk or ride with a co-worker.
In February 2001, Supervisor Kaufman met with each Code Compliance employee individually, including plaintiffs. During Kaufman's separate meetings with each plaintiff, Kaufman informed plaintiffs there was a perception among staff members that plaintiffs were being seen together too much and that "there [was] a policy against this." Pls.' Compl. at ¶ 25. When plaintiffs asked Kaufman to produce this policy, he was unable to do so. In Kaufman's meeting with Washington, Washington asked to be excused or for a union representative to be present. Kaufman refused to let Washington leave his office and allegedly verbally intimidated her. After plaintiffs met with Kaufman, they asked other co-workers what happened in their meetings. The co-workers told plaintiffs that their meetings with Kaufman concerned only case loads.
On March 1, 2001, plaintiffs met with Mahoney, the director of the OPDR. Mahoney and plaintiffs discussed Kaufman's statement that the plaintiffs were being seen together too much. Mahoney told plaintiffs that she had no recollection of there being any policy about staff riding together in the field. Mahoney said she would meet with Kaufman, Kleim, and Scotton to gather more information and report back to plaintiffs, but never did so.
Four days later, plaintiffs met with defendant's Affirmative Action Diversity manager, Joseph Quinones (Quinones), to discuss the management's criticism about plaintiffs. Quinones and plaintiffs also discussed why Caucasian employees were not required to sign in and out or to obtain advance supervisor permission before riding together. Quinones told plaintiffs to speak to Mahoney. When plaintiffs told Quinones that they had already spoken to Mahoney, Quinones asked plaintiffs to be patient.
Two days later, plaintiffs met with Mahoney, Kaufman, and Kleim. Mahoney stated that there was no written ride-along policy. Mahoney asked Kaufman if he ever questioned employees about their concerns regarding plaintiffs being seen together. Kaufman replied that he never did so. On March 27, 2001, plaintiffs received messages from Kleim stating that Kaufman would present a written draft policy regarding ride-alongs at a staff meeting later that morning. Plaintiffs attended the staff meeting where Kaufman informed the staff that it was unnecessary for Washington and other Code Hearings employees to go out into the field. Kaufman explained that Washington and other Code Hearings staff should only go into the field if a hearing has been scheduled.
On April 5, 2001, Washington received a message from Kleim stating that she felt there was tension in her work group and that she wanted to meet with plaintiffs, Kaufman, and Quinones. The following day, Washington received a telephone call from the Affirmative Action office. An office staff member stated that Kleim had said that "it would be a good idea if all of us met to discuss the problem that Washington had." Pls.' Compl. at ¶ 33.
On June 5, 2001, Kaufman led a staff meeting where he stated that there was a new policy requiring all staff personnel to request a supervisor's permission before going into the field. Kaufman stated that the policy was being instituted due to two unidentified employees. Plaintiffs allege that after the staff meeting, the policy was not applied to Caucasians and was enforced only against plaintiffs.
On September 11, 2001, plaintiffs filed a charge of employment discrimination for race and gender with the Oregon Bureau of Labor and Industries (BOLI) for alleged violations of Title VII of the Civil Rights Act of 1964. BOLI then co-filed a charge with the Equal Employment Opportunity Commission (EEOC). BOLI issued a right-to-sue letter to each plaintiff on May 2, 2002. The EEOC issued a right-to-sue letter to each plaintiff on May 16, 2002.
In March 2002, after plaintiffs had filed complaints with the EEOC and BOLI, Granville was involved in an altercation with a co-worker, Chris Sagan (Sagan). Granville was placed on administrative leave for nearly one month and later received a written reprimand Sagan was suspended for fourteen days. Defendant permitted Sagan to remain with his work group, but defendant moved Granville to a different work group.
Washington was offered a job transfer that defendant characterized as a promotion. This new position would have resulted in a small pay increase, but would have eliminated Washington's job security and her position with the labor union.
STANDARDS
1. Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is not proper if factual material exists for trial. Lindahl v. Air France, 930 F.2d 1434, 1436 (9th Cir. 1991).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. Assuming 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.
Special rules of construction apply to evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party; and (3) the court must assume the truth of direct evidence set forth by the nonmoving party if it conflicts with direct evidence produced by the moving party. T.W. Elec. Serv., 809 F.2d at 630. When different ultimate inferences can be reached, summary judgment is inappropriate. O'Connor v. Boeing N. Am., Inc., 311 F.3d 1139, 1150 (9h Cir. 2002).
The issue of material fact required by Rule 56 to entitle a party to proceed to trial does not need conclusive resolution in favor of the party asserting its existence. All that is required is sufficient evidence supporting the claimed factual dispute to require a trier of fact to resolve the parties' differing versions of the truth at trial. At the summary judgment stage, the judge does not weigh conflicting evidence or decide credibility. Those determinations are the province of the factfinder at trial. Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407, 410 (9th Cir. 1996) (on a motion for summary judgment, the court does not weigh the evidence or determine the truth of the matter asserted, but decides only whether there is a genuine issue for trial).
Moreover, in a Title VII employment discrimination suit, since "the ultimate question [of discrimination] is one that can only be resolved through a searching inquiry — one that is most appropriately conducted by a factfinder, upon a full record," a plaintiff only needs to produce very minimal evidence in order to overcome a motion for summary judgment. Chuang v. Univ. of California, Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) (quoting Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)).
2. Title VII Claims and State Discrimination Claims
Title VII prohibits employment discrimination based upon "race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). Pursuant to 42 U.S.C. § 1983, a plaintiff may challenge action committed under color of state law that amounts to a deprivation of constitutional or statutory rights. See Smith v. Barton, 914 F.2d 1330, 1333 (9th Cir. 1990). To prove discrimination in violation of 42 U.S.C. § 1983, a plaintiff must prove that the defendant acted with the intent to discriminate. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000).
The prima facie test for disparate treatment or a hostile work environment under O.R.S. 659A.030 is the same as the prima facie test required for a claim under Title VII. Cf. O.R.S. 659A.030 and 42 U.S.C. § 2000e-2; Henderson v. Jantzen, Inc., 719 P.2d 1322, 1324 (Or. 1986) (expressly adopting the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), prima facie case requirements for O.R.S. Chapter 659 claims).
Under McDonnell Douglas, to present a prima facie case of discrimination under Title VII, a plaintiff must present sufficient evidence that gives rise to an inference of unlawful discrimination. Godwin v. Hunt Wesson Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). One way a plaintiff may establish an inference of discrimination is by meeting the four requirements articulated in McDonnell Douglas: that plaintiff (1) belongs to a protected class; (2) was performing his or her job satisfactorily; (3) was terminated, rejected for employment, or otherwise subjected to a tangible employment action; (4) and that this took place under circumstances giving rise to an inference of unlawful discrimination. See McDonnell Douglas, 411 U.S. at 804; see also O'Conner v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13 (1996).
This four part test is neither exclusive nor rigid and its satisfaction depends on the facts of each case. The Supreme Court noted in McDonnell Douglas that because of the variations in factual situations, plaintiffs in some cases may establish a prima facie case by other means as well. McDonnell Douglas, 411 U.S. at 802 n. 13. Compliance with the McDonnell Douglas standard is only one method of establishing a prima facie case. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977); Gay v. Waiters' Dairy Lunchmen's Union, 694 F.2d 531, 550 (9th Cir. 1982) ("We have repeatedly emphasized that proof of the four McDonnell Douglas criteria is not the only way to establish a prima facie case of disparate treatment, and that the McDonnell Douglas approach is to be applied flexibly."); Lynn v. Regents of the Univ. of California, 656 F.2d 1337, 1341 (9th Cir. 1981). A plaintiff may seek to demonstrate an inference of discrimination in whatever manner is appropriate under the particular circumstances. See Loeb v. Textron, Inc., 600 F.2d 1003, 1014 n. 12 (1st Cir. 1979).
The burden of establishing a prima facie case is not onerous. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). At the summary judgment stage, the plaintiff need only present "minimal" proof that "does not even need to rise to the level of a preponderance of the evidence." Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). A plaintiff need only provide evidence that suggests that the employer's decision was based on a discriminatory motive that is illegal under the Civil Rights Act. Teamsters, 431 U.S. at 358.
If a plaintiff succeeds in proving the prima facie case, there is a presumption that the employer unlawfully discriminated against the plaintiff, and the burden of production shifts to the defendant employer to provide some legitimate, nondiscriminatory reason for the adverse employment action. Burdine, 450 U.S. at 256. If the defendant carries this burden, the plaintiff has the opportunity to prove by a preponderance of the evidence that the legitimate reasons proffered by the defendant were merely pretextual. McDonnell Douglas, 411 U.S. at 804; Yartzoff v. Thomas, 809 F.2d 1371, 1373-74 (9th Cir. 1987). A plaintiff can avoid summary judgment by producing evidence that raises a genuine issue of material fact regarding the truth of the employer's proffered explanation. Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000). This can be done either directly by persuading the court that a discriminatory motive more likely provoked the employer's action, or indirectly by showing that the employer's explanation is not credible. Burdine, 450 U.S. at 256.
3. First Amendment Violation of Free Speech
The Supreme Court has articulated a distinct, but similar, test for violations of the First Amendment based on deprivation of free speech. See Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 675 (1996). In order to state a claim for a violation of the First Amendment, the employee must show that: (1) the employee engaged in protected speech; (2) the employer took an adverse employment action against the employee; and (3) the employee's speech was a substantial factor in the employer's adverse employment action. Id.
In evaluating the First Amendment rights of a public employee, the threshold inquiry is whether the speech in question substantially addressed a matter of public concern. If not, the First Amendment is not triggered. Brewster v. Bd. of Educ of Lynwood Unified Sch. Dist., 149 F.3d 971, 978 (9th Cir. 1998). When a public employee speaks on matters of personal interest, "a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Connick v. Myers, 461 U.S. 138, 147 (1983). A public employee's speech may be characterized as matters only of personal interest when it is obvious that such speech deals with individual personnel disputes and "the information would be of no relevance to the public's evaluation of the performance of the governmental agencies." McKinley v. City of Eloy, 705 F.2d 1110, 1113-14 (9th Cir. 1983).
4. Fourteenth Amendment Violation of Intimate Association
The Fourteenth Amendment protects those relationships "that attend the creation and sustenance of a family" and other highly intimate relationships. IDK, Inc. v. Clark County, 836 F.2d 1185, 1193 (9th Cir. 1988). These are relationships in which the "individuals are deeply attached and committed to each other as a result of their having shared each other's thoughts, beliefs and experiences." Id. Because this constitutional protection is indispensable in preserving individual liberties, the government is prohibited from unduly interfering in these relationships. Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984).
ANALYSIS
1. Title VII Discrimination Based on Race or Gender
Defendant concedes that plaintiffs could prove the first two elements in the McDonnell Douglas analysis: that they are members of a protected class and that they performed their jobs satisfactorily. However, defendant argues that plaintiffs are unable to present a prima facie case that they suffered a tangible employment action that took place under circumstances giving rise to an inference of unlawful discrimination
a. Tangible Employment Action
Plaintiffs first complained about defendant's discriminatory conduct in early March 2001. Later that month, Kaufman held a staff meeting in which he stated that it was unnecessary for Washington and other Code Hearings staff to go out into the field, although Washington's job description included conducting site visits. In June 2001, Kaufman conducted a staff meeting in which he announced a new policy requiring all personnel to notify a supervisor before going into the field. Kaufman stated that this policy was being instituted due to two unidentified employees. After the staff meeting, the policy was allegedly not applied to Caucasians and enforced only against plaintiffs.
Plaintiffs allege that these staff meetings distressed them because the supervisors failed to address plaintiffs' concerns about being singled out. Plaintiffs argue that it is reasonable for a jury to conclude that the supervisors' actions were deliberate attempts to embarrass and humiliate plaintiffs.
Moreover, in March 2002, Granville was involved in an altercation with co-worker Sagan. Although defendant permitted Sagan to remain with his work group, defendant moved Granville to a different group. Shortly thereafter, Washington was offered a job transfer that defendant characterized as a promotion, but which would have resulted in a small pay increase for Washington and eliminated her job security and position with the labor union.
Defendant contends that it was an inefficient use of resources for two employees with dissimilar job duties to use one vehicle to visit work sites together and that plaintiffs' meetings with their supervisors to discuss ride-along policies were not tangible employment actions. Defendant asserts that Kaufman's actions in speaking to plaintiffs about the two of them going into the field together without first informing their supervisor was nothing more than explaining a workplace expectation to employees.
Construing the facts in the light most favorable to the plaintiffs, the court finds that a jury could reasonably conclude that the very establishment of a selectively-applied ride-along policy is a tangible employment action. Because plaintiffs were the only employees who were required to request permission to go into the field together, a jury could conclude that they were deliberately subjected to a stigmatizing work rule that was applied only to them. Furthermore, the supervisors' decision to publicly air plaintiffs' private concerns about the ride-along policy in the staff meetings, as well as Granville's transfer to a different work group, and Washington's offer of a transfer, could reasonably be construed as tangible employment actions premised on discriminatory motives.
b. Inferences of Discrimination
One way of showing that defendant's actions took place under circumstances giving rise to an inference of unlawful discrimination is by presenting evidence that others similarly situated to plaintiffs were treated more favorably. See McDonnell Douglas, 411 U.S. at 804.
In order to infer discrimination by dissimilar treatment, plaintiffs must show that individuals who were similarly situated to them in all relevant aspects were treated more favorably. Hess v. Multnomah County, 216 F. Supp. 2d 1140, 1156 (D. Or. 2001) (citing Lanear v. Safeway Grocery, 843 F.2d 298, 301 (8th Cir. 1988)). While the plaintiff is not required to show disparate treatment of an identically situated employee, the plaintiff must show that favorable treatment was applied to other employees whose situations were sufficiently similar to the plaintiff's to support an inference that the differing treatment was attributable to discrimination. Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997). This includes comparing relevant factors such as the employees' supervisors and job duties. See Jurado v. Eleven-Fifty Corp., 813 F.2d 1406, 1410 (9th Cir. 1987). Furthermore, in a discrimination case based on race or gender, the plaintiff must show that similarly situated employees included those who are neither African American nor women. See generally Regents of Cal. v. Bakke, 438 U.S. 265, 415-16 (1978); Gilligan v. Dep't of Labor, 81 F.3d 835, 839-40 (9th Cir. 1996).
Defendant contends that plaintiffs cannot show that similarly situated Caucasian males received more favorable treatment. Further, although Granville was placed on administrative leave after her altercation with Sagan, defendant argues that Sagan actually received harsher discipline for his actions arising out of the same circumstances because he was suspended for fourteen days while Granville ultimately only received a written reprimand
Construing the facts in the light most favorable to plaintiffs, a jury could reasonably conclude that defendant selectively enforced the ride-along policy only as to plaintiffs. Plaintiffs assert that there is a factual dispute as to whether Caucasian male employees who performed the same job duties as plaintiffs also had to check in with supervisors before going into the field in the same vehicle as a co-worker. Additionally, while defendant describes Sagan's punishment as more harsh than Granville's punishment, Granville's month-long administrative leave followed by a written reprimand could be reasonably viewed as more severe than Sagan's suspension. Finally, following the altercation, defendant allowed Sagan to remain with his work group while Granville was transferred out of her work group.
For these reasons, the court finds that a jury could reasonably conclude that defendant took tangible adverse employment actions against plaintiffs and that Caucasian white males who were similarly situated to plaintiffs were treated more favorably than plaintiffs. Given the minimal degree of proof necessary to establish a prima facie case for a Title VII claim on summary judgment, and the flexibility in which plaintiffs are allowed to present a prima facie case, the court concludes that plaintiffs have presented sufficient evidence to survive defendant's Motion for Summary Judgment.
c. Defendant's Burden of Production and Pretext
Defendant argues that even if plaintiffs are able to make out a prima facie case of discrimination, defendant had legitimate, non-discriminatory reasons for any action taken regarding plaintiffs' employment. See McDonnell Douglas, 411 U.S. at 802. In meeting this burden, the defendant must show that it honestly believed in the propriety of its actions, regardless of whether they were ill-advised, foolish, or even baseless. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002).
Defendant argues that its decision to create workplace rules and to direct employees to comply with those rules was legitimate and non-discriminatory. Contrary to plaintiffs' assertion, defendant argues that there has been a long-standing work practice that employees were required to advise a supervisor before going into the field together. Defendant also argues that giving Granville a written reprimand for her behavior was a legitimate and non-discriminatory action under the circumstances.
Plaintiffs argue that defendant's proffered explanation for its actions are pretextual and that the actions were actually motivated by hostility or discrimination. First, plaintiffs argue that there is direct as well as circumstantial evidence suggesting that plaintiffs were selectively supervised for reasons that were not legitimate nor non-discriminatory. Defendant's concerns regarding employees traveling into the field together were heightened after reports were received about plaintiffs. Plaintiffs are the only black female employees who do field work. Plaintiffs may also have been singled out when they were verbally warned about riding together too often. There is no evidence presented of Caucasian employees being subjected to complaints of spending too much time together. Second, the reasons given by defendant for Granville's administrative leave and written reprimand following her altercation with Sagan were for swearing and other actions that were allegedly commonplace in the bureau. There is no evidence that other employees outside of plaintiffs' protected class were put on administrative leave or reprimanded for such conduct.
Plaintiffs need only present minimal evidence of a discriminatory motive on defendant's part to overcome a motion for summary judgment. The court finds that plaintiffs have presented sufficient direct and circumstantial evidence tending to show that a discriminatory motive may have more likely compelled defendant's actions, or that defendant's proffered explanations lack credibility.
d. Hostile Work Environment
A plaintiff may also establish a violation of Title VII by proving that discrimination based on race or gender has created a hostile or abusive work environment. Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 66 (1986). A hostile work environment claim involves a workplace atmosphere so discriminatory and abusive that it unreasonably interferes with a plaintiff's ability to perform his or her job. Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000). An employer can be vicariously liable to a plaintiff for a Title VII violation if an actionable hostile work environment was created by a supervisor with successively higher authority over plaintiff. Faragher v. Boca Raton, 524 U.S. 775, 807 (1998).
To prevail on a hostile work environment theory, a plaintiff must show that: (1) he or she experienced verbal or physical actions of a racial or sexual nature; (2) the actions were unwelcome; and (3) the actions were sufficiently severe or pervading as to alter plaintiff's working conditions and create an abusive work environment. Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995). The work environment must be both subjectively and objectively hostile. Id.
The court analyzes a hostile work environment by examining all the surrounding circumstances, such as the frequency and severity of the alleged actions, whether the actions were physically threatening, and whether the actions unreasonably interfered with the plaintiff's work performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment'" within the meaning of Title VII. Faragher, 524 U.S. at 788 (quoting Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 82 (1998)). Rather, the court looks at whether, under the totality of the circumstances, "the workplace was permeated with discriminatory intimidation, ridicule, and insult" such that the conditions of the plaintiff's employment were altered. Harris, 510 U.S. at 21, 23.
Defendant claims that plaintiffs' allegations that they were singled out and ordered not to go on ride-alongs with each other without first requesting permission are inadequate to prove a hostile work environment. Defendant argues that plaintiffs are simply unable to present any evidence of physical or verbal intimidation based on race or gender so severe or pervasive as to amount to a hostile work environment.
This court agrees. The cases in which courts have found violations of Title VII based on a hostile work environment involve facts far more pervasive and severe than those alleged here. See, e.g., Meritor, 477 U.S. at 60 (finding an actionable claim for a hostile work environment where an employer made repeated demands for sexual favors, fondled the plaintiff in front of other employees, exposed himself to the plaintiff, and forcibly raped the plaintiff on several occasions); EEOC v. Hacienda Hotel, 881 F.2d 1504, 1508 (9th Cir. 1989) (finding a hostile working environment exists where a co-worker made sexual comments to and advances upon employees and where a supervisor called the employees "dogs" and "whores"); Snell v. Suffolk County, 782 F.2d 1094 (2d Cir. 1986) (finding a hostile work environment exists where employees were repeatedly subjected to a daily barrage of such slurs as "nigger," "coon," "black bitch," and "spic").
Plaintiffs' evidence includes allegations that their supervisors used staff meetings to embarrass plaintiffs, one instance in which Kaufman turned all the stuffed animals on Washington's desk so that they were "watching" Washington, another instance in which Washington allegedly complained about sexual harassment and was ignored, and Granville's altercation with Sagan. Even if plaintiffs' allegations are accepted as true for purposes of summary judgment, they do not rise to the level of an objectively hostile work environment as contemplated by Meritor and its progeny. While plaintiffs may have been subject to unwelcome racial or sexual comments or actions, defendant's alleged conduct was never so severe and pervasive that it unreasonably interfered with their ability to perform their job duties. Accordingly, there is insufficient evidence to support a claim of hostile work environment.
Nevertheless, the court finds that there exist too many factual disputes to grant the remainder of defendant's Motion for Summary Judgment on plaintiffs' Title VII discrimination claim. Accordingly, defendant's motion as to this claim is denied.
The language of 42 U.S.C. § 1983 provides that: "Every person who, under color of any statute, ordinance, regulation, custom or usage . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws, shall be liable to the party. . . ." This provision imposes liability on a governmental entity that, under color of some official policy, causes an employee to violate another's constitutional rights. Monnell v. Dep't of Soc. Serv. of City of N.Y., 436 U.S. 658, 692 (1978). To prevail on a claim for a violation under 42 U.S.C. § 1983, plaintiffs must prove that defendant's actions were taken pursuant to a policy, custom, or practice of the defendant that deprived plaintiffs of their constitutional rights. See id. at 436 U.S. at 690-91.
Plaintiffs allege that defendant is liable under 42 U.S.C. § 1983 because it infringed upon plaintiffs' rights to free speech and freedom of association as protected by the First and Fourteenth Amendments. Defendant contends that plaintiffs cannot prove that defendant had policies, customs, or practices to discriminate on the basis of race or gender. Defendant points to its express policies, practices, and code that prohibit unlawful discrimination. See Affidavit of Jenifer Johnston, Ex. 8; Affidavit of Beverly Bolensky Dean, Exs. 1, 2, 3, 5. Defendant asserts that even if plaintiffs have suffered unlawful discrimination, such discrimination would have been contrary to defendant's policy. Thus, any acts of discrimination plaintiffs experienced were in direct conflict to defendant's custom, policies, and practices. However, based on the same evidence in support of plaintiffs' Title VII claim, this court finds that plaintiffs have presented sufficient proof that a reasonable jury could find that defendant engaged in a custom, practice, or policy to intentionally discriminate against plaintiffs on the basis of their race and/or gender. See, e.g., Sischo-Nownejad v. Merced Comm. Coll., 934 F.2d 1104, 1112-13 (9th Cir. 1991) (finding that evidence that is sufficient to create a genuine issue of material fact for purposes of Title VII also serves to create a genuine issue for purposes of Section 1983); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). Thus, defendant's motion is denied insofar as it pertains to plaintiffs' Section 1983 Equal Protection claim based on race and gender.
a. Free Speech
Courts undertake a three-part inquiry when a public employee alleges unlawful discrimination against a governmental entity for violations of free speech: (1) whether the speech at issue was constitutionally protected; (2) whether the speech was a motivating factor in the discriminatory actions; and (3) whether the governmental entity would have taken the same action even in the absence of the protected speech. See Bd. of County Comm'rs Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, 675 (1996). To prove that speech is constitutionally protected, a plaintiff must show that the speech involved a matter of public concern and that the plaintiff's interest in the speech outweighed the defendant's interest in avoiding workplace disruption. Waters v. Churchill, 511 U.S. 661, 668 (1994).
The threshold inquiry is whether the plaintiff's statements substantially addressed a matter of political, social, or other community concern. Roe v. City County of San Francisco, 109 F.3d 578, 584 (9th Cir. 1997). If not, the First Amendment is not triggered and all other inquiries are irrelevant. Connick, 461 U.S. at 146. Speech is not of public concern when it deals solely with individual personnel disputes and is irrelevant to the public's evaluation of the governmental agency's actions. McKinley, 705 F.2d at 1114. However, if the speech concerns information that society should know about to make informed decisions about the operations of the government, that speech merits the highest degree of constitutional protection. Coszalter v. City of Salem, 320 F.3d 968, 973-74 (9th Cir. 2003).
Granville asserts that her speech claim arises from defending herself from threats by Sagan and defendant's reaction to her conversations with Washington. Washington asserts that her speech claim arises from defendant's reaction to her conversations with Granville and organizing a large union rally.
Granville was disciplined for using profanity in her altercation with Sagan. This is not protected speech. It did not substantially address a matter of political, social, or other community concern. Plaintiffs' conversations with each other also cannot be considered protected speech, as they did not concern information that society should know about to make informed decisions about the operations of the City of Portland Additionally, while Washington's participation in the union rally could be construed as protected speech, Washington fails to show that defendant interfered with that right. Accordingly, defendant's motion is granted insofar as it pertains to this claim.
b. Free Association
The Fourteenth Amendment also protects two kinds of freedom of association. The first is the choice to enter into and maintain certain relationships free from undue governmental intrusion. Roberts, 468 U.S. at 617-18. The second is the right to associate for the purpose of engaging in speech, assembly, petition for the redress of grievances, and the exercise of religion. Id. This protection is not all-encompassing. It safeguards only "highly personal relationships." Id. at 618-19. These are the kinds of relationships where the parties are intimately attached and committed to each other as a result of shared thoughts, beliefs, and experiences. IDK, 836 F.2d at 1193. The relevant factors in determining whether such an association exists includes "the group's size, its congeniality, its duration, the purposes for which it was formed, and the selectivity in choosing participants." Id.
This court concludes that the friendship between plaintiffs is not entitled to such protections. Plaintiffs do not share an intimate relationship and consequently cannot show any interference with the first type of association identified in Roberts. Plaintiffs have also not alleged any interference with their right of association for the purpose of engaging in protected activities such as speech, assembly, or petition for redress of grievances. Accordingly, defendant's motion is granted insofar as it pertains to this claim.
CONCLUSION
For the foregoing reasons, defendant's Motion for Summary Judgment (Doc. #56) is granted in part and denied in part. To the extent that the court considered any of the material that is the subject of the motions to strike, it is not outcome determinative. Accordingly, plaintiffs' Motions to Strike (Docs. #84, 108) and defendant's Motion to Strike (Doc. #97) are denied as moot.
IT IS SO ORDERED.