Wilkins v. Brandman University

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DEMETRYE WILKINS, 3:17-cv-01099-BR

Plaintiff, OPINION AND ORDER

v.

BRANDMAN UNIVERSITY,

Defendant.

BETH ANN CREIGHTON

LAURA KOISTINEN

Creighton & Rose, PC

Powers Building

65 S.W. Yamhill Street, Suite 300

Portland, OR 97204

(503) 221-1792

Attorneys for Plaintiff

J. MICHAEL PORTER

MATTHEW A. TRIPP

Miller Nash Graham & Dunn LLP

111 S.W. Fifth Avenue

Suite 3400

Portland, OR 97204

(503) 224-5858

Attorneys for Defendant

1 - OPINION AND ORDER

BROWN, Senior Judge.

This matter comes before the Court on Defendant’s Motion

(#51) for Summary Judgment. The Court concludes the record is

sufficiently developed to resolve this Motion without oral

argument. For the reasons that follow, the Court GRANTS

Defendant’s Motion and DISMISSES this matter with prejudice.

BACKGROUND

The following facts are taken from the parties’ Joint

Statement of Agreed Facts (JSAF) and the parties’ filings related

to Defendant’s Motion for Summary Judgment and are undisputed

unless otherwise indicated.

Defendant Brandman University hired Plaintiff Demetrye

Wilkins as an enrollment coach on October 13, 2014. It is

undisputed that Defendant has a 180-day probationary period

during which enrollment coaches learn how to perform their jobs

but are also expected to reach the goals set by Defendant.

At the time he was hired Plaintiff’s supervisor was Felicia

Royce, Assistant Director of Enrollment Services. At some point

in the summer of 2015 Enrollment Coach Laura Mumford was promoted

to Assistant Director of Enrollment Services and became

Plaintiff’s direct supervisor.

In early June 2015 Mumford and Dana Gelfand, Associate Vice

Chancellor of Enrollment Operations, began working with Madiha

2 - OPINION AND ORDER

Chughtai, Human Resources Manager, to draft a Disciplinary

Counseling Memorandum regarding Plaintiff’s job performance.

During the time Mumford, Gelfand, and Chughtai were working

on the Disciplinary Counseling Memorandum Gelfand received

reports from several staff members that Plaintiff may have been

manipulating “call data.” Gelfand brought the reports to

Chughtai’s attention. Chughtai recommended issuing the

Disciplinary Counseling Memorandum to Plaintiff while Gelfand

reviewed the relevant call data.

On June 10, 2015, Mumford and Gelfand issued a Disciplinary

Counseling Memorandum to Plaintiff regarding “unsatisfactory job

performance,” which constituted a “written notice of disciplinary

action.” Decl. of Matthew Tripp, Ex. 15 at 1. Mumford and

Gelfand set out a number of deficiencies in Plaintiff’s

performance that included giving inaccurate information to

students that caused them to complain and that required other

staff members to provide the students with correct information

and guidance; failing “to be available for warm transfers”; being

overdue on following up with a significant percentage of his

“student pipeline”; failing to meet the team’s average call

metrics for wait time, warm transfers, call volume, and call

time; failing to complete his weekly evaluation “scorecards”; and

his unsatisfactory attendance. Mumford and Gelfand provided

Plaintiff with a plan for corrective action that required him to

3 - OPINION AND ORDER

“ensure accurate information is provided in every student

interaction”; to use the sales framework established by the

department and to “score a minimum of 2 on all of the skills

evaluated”; to improve to “at least the team average for wait

time, warm transfers, call volume, and call time”; and to adhere

to his attendance requirements. Tripp Decl., Ex. 15 at 4.

Mumford and Gelfand also advised Plaintiff that they had been

“notified of concerns that some staff members have with your

communication. Demetrye, you are expected to use professional

language and display a professional and respectful demeanor at

all times in the workplace. We also ask that you respect other

coworkers who do not want to engage in discussions.” Id.

Finally, Mumford and Gelfand advised Plaintiff that

[t]his written warning serves as notice that your

pattern of unsatisfactory job performance must

improve immediately. During the next 30 days,

we'll be carefully monitoring your performance,

and we'll take appropriate action during or

following this period in accordance with the

degree of progress you make. If you do not

immediately improve your job performance and

sustain it at an acceptable level, or if there are

any other job performance problems, this may

result in further disciplinary action, including

termination. Failure to comply with the plan for

corrective action or any future violations of

Brandman's policies, job requirements and/or

procedures may result in further disciplinary

action including termination.

Tripp Decl., Ex. 15 at 5. Plaintiff did not include any comments

in the employee comments section of the Memorandum. Plaintiff

and Mumford signed the Memorandum on June 10, 2015.

4 - OPINION AND ORDER

Gelfand investigated the issue of Plaintiff’s alleged

manipulation of call metrics and discovered evidence that,

according to Gelfand, established Plaintiff was intentionally

manipulating his call data to make his performance appear to be

better. Specifically, Gelfand discovered Plaintiff had made 39

calls to a “nonviable number”; “failed to disconnect from some

calls when they were over, which would increase [Plaintiff’s]

talk time”; and “dispositioned at least one call ‘successful,’

which represents that he actually spoke to the student, when he

had in fact only left a voicemail.” JSAF at ¶ 41.

Mumford was on vacation from June 29, 2015, through July 10,

2015. Mumford instructed Plaintiff to send “daily recaps” to

Gelfand while Mumford was gone, and Plaintiff, therefore, sent

his daily recaps to Gelfand the week of June 29, 2015. Mumford,

however, did not advise Plaintiff to send his daily recaps to

another individual if Gelfand was not in the office. Thus,

because Gelfand was out of the office the week of July 6, 2015,

Plaintiff did not send his daily recaps to anyone that week.

On July 21, 2015, Mumford and Gelfand sent a second

Disciplinary Counseling Memorandum to Plaintiff in which they

reiterated their concerns with Plaintiff’s performance as set out

in the June 10, 2015, Disciplinary Counseling Memorandum and also

advised Plaintiff:

Upon further investigation, we have determined

that you have not been accurately dispositioning

5 - OPINION AND ORDER

your calls. Data that was pulled showed that you

dispositioned calls as “successful”, when you

actually left voicemails. In addition, there were

approximately 39 calls made to one not viable

number over a period or a few weeks which

increased your call metrics. Furthermore, there

were calls that you made where you did not

disconnect and the call time recorded for that

entire length of time, increasing your call time.

Given this additional information, the nature of

the Written Notice of disciplinary Action is being

modified to a Final Written Notice.

Tripp Decl., Ex. 8 at 1. Mumford and Gelfand also noted

Plaintiff’s “job performance has not adequately improved [in] the

areas identified” in the June 10, 2015, Memorandum. Id. at 2.

Specifically, Plaintiff failed to meet his student-conversion

target; failed to meet his “score target” for “quality student

interactions/consultative sales”; and failed to meet the team

average for wait time, warm transfers, call volume, and call

time. Id. Finally, they noted “[o]n 6/25 you had to be reminded

by your AD to send the daily recap as you had not submitted it 3

days in a row. On 7/13 you were notified that you neglected to

submit it for a full week during the absence of your AD.” Id.

The Disciplinary Counseling Memorandum included a plan for

corrective action and noted:

This final written warning serves as notice that

your pattern of unsatisfactory job performance

must improve immediately. If you do not

immediately improve your job performance and

sustain it al an acceptable level, or if there are

any other job performance problems, your

employment with Brandman will be terminated.

Failure to comply with the plan for corrective

action or any future violations of Brand man's

6 - OPINION AND ORDER

policies, job requirements and/or procedures will

result In termination.

Id. at 3. After reviewing the Memorandum, Plaintiff disputed in

the section reserved for employee comments that he dispositioned

calls as successful when he actually merely left voicemails and

that he made 39 calls to a “nonviable number.” Plaintiff also

stated he would like to see the evidence supporting the

allegations that he disputed. As to the allegations that he

failed to submit his daily recaps for the week of July 13, 2015,

Plaintiff pointed out that he had not been “assigned anyone to

submit [his] recap” for that week. Tripp Decl., Ex. 8 at 3.

Plaintiff and Mumford signed the Memorandum with Plaintiff’s

comments on July 21, 2015.

Chughtai states in her Declaration that Plaintiff “made the

same complaints” to her that Plaintiff set out in the employee

comment section of the July 21, 2015, Memorandum, and she

“conducted a thorough inquiry into [his] complaints.” Decl. of

Madiha Chughtai at ¶ 8. Ultimately,

[a]lthough it was clear that [Plaintiff] had made

39 calls to a nonviable number, my investigation

determined that the number was on a student record

in the dialer system each time Wilkins called it.

I removed the reference to the 39 calls from the

final counseling memorandum in order to give

[Plaintiff] the benefit of the doubt that he did

not know how to change the nonviable number in the

system.

Chughtai Decl. at ¶¶ 9-10.

7 - OPINION AND ORDER

On August 4, 2015, Mumford and Gelfand issued a revised

final Disciplinary Counseling Memorandum to Plaintiff in which

they reiterated the same points set out in the July 21, 2015,

Memorandum regarding Plaintiff’s performance except as to the 39

alleged calls. Specifically, Mumford and Gelfand now noted:

Upon further investigation, we have determined

that you have not been accurately dispositloning

your calls. Data that was pulled showed that you

dispositioned calls as “successful”, when you

actually left voicemalls. Furthermore, there were

calls that you made where you did not disconnect

and the call time recorded for that entire length

of time, increasing your call time. Given this

additional information, the nature of the Written

Notice of disciplinary Action is being modified to

a Final Written Notice.

Decl. of [Plaintiff’s] Counsel, Ex. 16 at 1.

In response to the August 4, 2015, Disciplinary Counseling

Memorandum Plaintiff provided a Memorandum to the “Brandman

Management Team” on August 6, 2015, in which he stated:

From my written notice, until my now final notice.

I've experienced nothing but bias and a lack of

ethics. Holly Williams and Julie Noyes two

Caucasian employees were both put on written

notices (I believe one was on her final) and taken

off in a short manner of time. A fellow coworker,

Chris Wilhite has missed 20+ days of work, has

100+ post due student in status for a few weeks

and hasn't so much as been given a written notice.

So, in this instance I feel like I'm being singled

out and discriminated against.

I feel there is a double standard, which makes for

a lack of ethics. As an Enrollment Coach at

Brandman University, our job is to see if Brandman

is a good fit for prospects and to help them on

the path to becoming admitted and registered. As

of 8/5/15 I have 25 students registered for the

8 - OPINION AND ORDER

Fall I session. Five of my coworker are beneath

that number of registers. I feel that my numbers

speaks for itself. I understand the purpose of

the call metric, which is to make sure we are

working efficiently and effectively. I feel

mentioning my call time in my final warning

(especially with other [sic] not meeting their

expectation) is looking for charges against me to

dismiss me. As I just stated, my inquiry to

registered numbers speak for itself. I'm getting

the job done by connecting with student, [sic]

hearing and meeting their needs and moving them

forward.

My written notice has dates that go back to the

time when I was still understanding my role and

job description, a time when someone makes

mistakes because they are learning their duties;

since then I have improved. I was given a plan of

corrective action and have met what was required

of me. I've received more transfer call[s] from

the EA's [sic]. I've kept my Past-Due status to a

minimum. I've sought assistance in answering

students concerns accurately.

On page l of my final written disciplinary, it

states, “data that was pulled showed that you

dispositioned calls "successful”, when you

actually left voicemail. I haven't seen proof of

that. How do I know if that's accurate

information? The 30-39 calls I supposedly made

was removed from the final written disciplinary

because there was no proof. What's to say this

isn't the same error?

On page 2 of the final written warning on the

bottom it states, “On 7 /13 you were notified that

you neglected to submit (daily recap) for a full

week during the absence of your AD.” My AD did

not tell me who to submit my daily recap to. This

was clearly a lack of direction on my AD[‘s] part,

which has been placed on the final warning. I

have the actual email attached to this comment

sheet to verify that.

[Plaintiff’s] Counsel Decl., Ex. 16 at 4-5.

Chughtai received and investigated Plaintiff’s complaints of

9 - OPINION AND ORDER

discrimination. She reviewed relevant documents and interviewed

Plaintiff, Mumford, and Gelfand as well as Associate Vice

Chancellor of Enrollment Operations Albert Salsa.

On September 11, 2015, Chughtai sent Plaintiff a six-page

memorandum detailing her “investigative outcomes.” Chughtai

Decl., Ex. 2 at 2. In particular, Chughtai noted Plaintiff had

expressed concerns that management had issued written warnings to

him for infractions that he believed should have been first

addressed by verbal counseling. Chughtai, however, explained

Defendant’s policy did not require management to issue verbal

warnings before written warnings, and, in any event, Plaintiff

received direct feedback every week during his “1:1” with his

supervisors in addition to weekly scorecards that included

feedback as far back as April 2015 that Plaintiff needed to

improve his performance. As to Plaintiff’s allegation that he

was unfairly written up for things that occurred during his

“introductory period,” Chughtai noted management had provided him

with coaching to improve his performance since October 2014, and

“[w]hile some of those issues occurred during your introductory

period, and while this period is a time for you to understand

your role and job description, you are still held to performance

expectations, and any unsatisfactory performance will still be

addressed during an introductory period.” Chughtai Decl., Ex. 2

at 3. Chughtai noted her investigation established Plaintiff’s

10 - OPINION AND ORDER

performance had “improved in some metrics, but not others,” and,

therefore, Chughtai could not “substantiate that you are being

held to unfair call time metrics.” Id. at 4. Chughtai noted the

reference to the 39 calls “was removed from [Plaintiff’s] final

written notice . . . not because there was no evidence, but

because leadership wanted to give [Plaintiff] the benefit of the

doubt that [he] did not know to change the number in the student

record.” Id. at 5. In any event, Gelfand and Mumford “spot

checked a few records randomly on August 12, 2015, and quickly

found three records where you had dispositioned a call as a

voicemail when in fact you left no voicemail at all.” Id. In

addition, Gelfand and Mumford found other “calls that had

continued after the student hung up, thus extending call time

. . . . [Plaintiff] indicated that the vast majority of other

staff members engage in the same misconduct, but [Chughtai’s]

investigation was unable to find any such other examples.” Id.

Chughtai found Plaintiff’s complaint about failing to have

someone to send his daily reports to for the week of July 13,

2015, was substantiated, but Chughtai noted Plaintiff also “did

not submit the required daily recap for three days in June, and

on 6/25 had to be reminded by your supervisor to send the daily

recap.” Chughtai stated she could not “substantiate any

legitimate reason to excuse your failure to send daily reports on

those days.” Id. Chughtai also found other assertions by

11 - OPINION AND ORDER

Plaintiff about being discriminated against were unsubstantiated.

For example, according to Plaintiff two Caucasian employees were

taken off written notices “in a short manner of time” and that

another coworker was not put on written notice even though he had

missed “20+ days of work [and] has 100+ past due student in

status.” Chughtai noted she was not able to discuss disciplinary

actions taken against other staff members, but she had fully

investigated Plaintiff’s concerns and did not find any violations

or inconsistencies in the application of Defendant’s policies to

the employees at issue. Finally, Chughtai noted Plaintiff had

“made improvements in several of the areas of [his] performance,

including [his] registered students; however, [his] call quality

and call time are still low and often below the team average, and

[he] continue[s] to not implement the consultative sales

framework.” Chughtai Decl., Ex. 2 at 7. Chughtai noted

Defendant would revise Plaintiff’s final written disciplinary

memorandum to remove the references to Plaintiff’s failure to

provide daily recaps for the week of July 13, 2015, and to the 39

calls made to the “unviable” number. Nevertheless, Chughtai

concluded “there was no evidence to support that any unlawful

discrimination has occurred because of race or other reason

protected by law or Brandman policy.” Id.

In November 2015 Plaintiff reported to Christopher Larson,

Director of Quality Assurance, that two coworkers had made

12 - OPINION AND ORDER

race-based comments to Plaintiff. JSAF at ¶ 75. Specifically,

Plaintiff reported to Larson that during a training meeting the

enrollment coaches viewed a video clip of an African-American

child comedian known as Kid President. Enrollment Coach Nathan

Dunkin said, "Oh, look. Look at Demetrye.” Plaintiff asked

Dunkin: “Why, because he's black?” Dunkin responded: “No

because he's just a little -- cute little kid, just, you know,

that's it. Just simple.” JSAF at ¶ 75. Plaintiff also reported

to Larson that Plaintiff had been “walking through a door with a

dark shirt on,” and Enrollment Coach Anthony Potter said to him:

“You can't hide behind the door. You're black. You can't hide

behind this white wall.” JSAF at ¶ 75-76. Larson told Plaintiff

that he would talk to Duncan and Potter, “take care of the

situation, and follow up with [Plaintiff].” JSAF at ¶ 77.

Larson met with Duncan and Potter and counseled them about

making comments that Plaintiff found offensive. Duncan and

Potter subsequently apologized to Plaintiff. JSAF at ¶ 80.

Plaintiff was “satisfied with the response and felt that the

issue had been resolved.” JSAF at ¶ 81. Plaintiff then sent

Larson an email in which he stated: “Again, I want to thank you

for listening and taking care of the issues I had with Nathan and

Tony regarding the racial comments they've made. I appreciate

you immediately delving into this issue, and rectify[ing] it.”

JSAF at ¶ 82.

13 - OPINION AND ORDER

On January 28, 2016, Plaintiff was talking to Enrollment

Coach Scott Kobold. Senior Enrollment Analyst Stephan Farnsworth

“leaned in and asked, ‘what are you guys talking about?’” JSAF

at ¶ 86. Plaintiff “whispered to Farnsworth and Kobold, with a

smile on his face: ‘I have a bomb.’” JSAF at ¶ 87. Plaintiff

then said he was joking and that he “shouldn’t have said that.”

JSAF at ¶ 88. Plaintiff opened his bag and his desk drawers to

show Farnsworth and Kobold that he did not have a bomb and was

joking. Farnsworth summarized the conversation in an email recap

provided to Larsen at 2:28 p.m. on January 28, 2016:

As I walked back into my office and away from

[Plaintiff’s] desk, [Plaintiff] quietly said to me

“hey, Steve, come here”, I walked back over. He

said to me, with a small grin on his face, “I’m

going to bomb this place”. Immediately shocked by

what I heard I said back to him “what?”, he said

“I'm going to bomb this place . . . .” All in a

quiet tone as if to not scare people. Again, I

said to him “what? Are you kidding?” and he said

back: “no, at 3pm”. I gave him a concerned

glance while shaking my head, still with a

half-smile since I was so caught off guard and we

had just been joking. He then immediately sat

back in his chair, shook his head from side to

side and said “I’m serious man, I'm serious”. I

think that when he said this, he intended to say

he was joking, but accidentally said he was

serious. Regardless of intent at that point I

asked him if I needed to get HR involved, to which

he said “no, no I'm kidding, see? Look” he opened

his backpack, drawers at his desk, etc. to

demonstrate he had nothing with him that should be

treated as a threat. I asked him shortly after if

I should get the building concierge, he again said

“I'm kidding man”, but then he went on to say

“don't worry Steve, I’ll give you 5 minutes notice

so you can get out”.

14 - OPINION AND ORDER

Chughtai Decl., Ex. 3 at 1. Kobold described the conversation as

follows in an email sent to Larson at 2:51 p.m. on January 28,

2016:

Sometime this afternoon around 12:30pm, I was

engaged in a conversation that included myself,

Steve Farnsworth and [Plaintiff]. The dialogue at

this point was primarily between Steve and

[Plaintiff] and was of a light nature; jokes and

smiles were being exchanged. Out of the blue,

[Plaintiff] made a comment saying something to the

effect of, “I'm going to bomb this place at 3

o'clock”. Steve responded by saying, “Should I be

calling HR?”. [Plaintiff] then said something

like, “No, I'm just joking. You can check my bag

and my desk. I don't have anything”.

Chughtai Decl., Ex. 4 at 1. After the conversation concluded,

Farnsworth went to the kitchen to get his lunch and returned to

his office. Farnsworth testified at deposition that “the

potential gravity [of the conversation] started to set in with

[him]” after he returned to his desk. Tripp Decl., Ex. 11 at 4.

At that point Larson came into Farnsworth’s office and Farnsworth

“realized [he] needed someone to talk to about it,” so he told

Larson about the conversation. Id.

Larson and Farnsworth contacted their supervisor Albert

Sals,. Salsa and Larson concluded Larson should contact Salsa’s

supervisor, Executive Vice Chancellor for Enrollment and Student

Affairs Saskia Knight, as well as Defendant’s Human Resources

Department. Larson did so, and Knight contacted Associate Vice

Chancellor of Human Resources Learning and Development Sam

Bresler. Bresler recommended Larson and Farnsworth contact the

15 - OPINION AND ORDER

building manager to determine the policy in this situation. They

did so, and the building manager called 911. Farnsworth and

Larson explained the situation to the 911 dispatcher, “including

the fact that [Plaintiff] said his comment was a joke.” JSAF at

¶ 98.

A short time later, two police officers came to

the coaching center, interviewed [Plaintiff],

asking him “Did you make a joke about a bomb?”

He responded that he was just kidding. And they

said, “Well, sir, you know, because of 9-11,

people need to take these things seriously.” Then

[Plaintiff] consented to a search of his bag. The

officers searched his bag and, according to

[Plaintiff], said: “You know what, you seem to be

an okay guy, so you can't go back to work because

people feel unprotected here.” The officers

escorted him off the premises.

JSAF at ¶ 99. After Plaintiff left the premises, “management

told the staff what had happened.” JSAF at ¶ 100. Larson noted

in his recap of the incident written on January 28, 2016, that

after he advised the staff what had happened, “[t]wo staff

members then came to [him] to say they were uneasy with the

situation and uncomfortable being in the office after a bomb

threat even when in jest.” Chughtai Decl., Ex. 5 at 1.

Accordingly, at 2:15 p.m. Larson gave the coaching-center staff

the option to leave the office early that day, “and everyone

did.” JSAF at ¶ 101. Defendant closed the coaching center for

the rest of the day.

Chughtai began an investigation into Plaintiff’s bomb

comments. She interviewed Plaintiff; reviewed written statements

16 - OPINION AND ORDER

from Farnsworth, Kobold, and Larson; and conducted follow-up

interviews with Farnsworth and Kobold. JSAF at ¶¶ 103-06.

Farnsworth and Kobold made clear that they believed Plaintiff was

most likely joking when he made his bombing comment. Farnsworth,

however, stated he “felt he had a ‘professional responsibility’

to report the statement because he was ‘putting [himself] and the

20 other people that were [t]here at risk by not saying

something.’” JSAF at ¶ 116. Kobold explained he believed

Plaintiff’s comment was a bad joke, but “it was ‘something that

you never want to say in an office setting . . . especially

post-911.’” JSAF at ¶ 118.

On February 2, 2016, Chughtai sent Bresler a memorandum

outlining her investigation and her conclusions and advised

Bresler that Plaintiff’s comments violated Defendant’s Workplace

Violence Policy, which provides Defendant has “zero tolerance for

actual or threatened violence against co-workers, faculty,

students, visitors, vendors, or any other persons.” Suppl. Decl.

of Matthew Tripp, Ex. 9 at 6. Chughtai noted Plaintiff’s bomb

comment had been taken seriously enough for Larson to “escalate[]

it to [Defendant’s] upper management,” and building security

“escalated it to the police authorities who took it seriously

enough to escort [Plaintiff] out of the building.” Id. In

addition, “staff were concerned and alarmed enough that many of

them requested to leave for the day. The ECC closed for the day

17 - OPINION AND ORDER

and the staff went home.” Id. Chughtai also noted Plaintiff

“has been on a final warning since September 2015 for performance

related issues.” Id. Ultimately, Chughtai recommended Defendant

terminate Plaintiff’s employment. Bresler agreed with Chughtai’s

recommendation and terminated Plaintiff’s employment by letter on

February 3, 2016. JSAF at ¶ 123.

On January 16, 2017, Plaintiff filed a complaint with the

Oregon Bureau of Labor and Industries (BOLI) in which he alleged

Defendant terminated him on the basis of his race and/or in

“retaliation for making protected complaints of discrimination.”

Tripp Decl., Ex. 13 at 2.

On February 11, 2016, Defendant filed a response to BOLI’s

request for separation information in which Defendant specified

it terminated Plaintiff “due to performance” and because he

“failed to follow instructions/policy/contract.” [Plaintiff’s]

Counsel Decl., Ex. 71 at 2-3.

On July 14, 2017, Plaintiff filed a Complaint in this Court

against Defendant alleging claims for

(1) Race discrimination in violation of Title VII, 42

U.S.C. § 2000e-2; 42 U.S.C. § 1981; and Oregon Revised

Statutes § 659A.030(1)(a) and (b) and

(2) Retaliation against Plaintiff for opposing

discrimination in violation of Title VII, 42 U.S.C.

§ 2000e-3; Oregon Revised Statutes § 659A.030(f); and

18 - OPINION AND ORDER

Oregon Revised Statutes § 659A.199.

On May 7, 2019, Defendant filed a Motion for Summary

Judgment as to all of Plaintiff’s claims. The Court took this

matter under advisement on June 11, 2019.

STANDARDS

Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011). See also Fed. R.

Civ. P. 56(a). The moving party must show the absence of a

genuine dispute as to a material fact. Emeldi v. Univ. of Or.,

673 F.3d 1218, 1223 (9th Cir. 2012). In response to a properly

supported motion for summary judgment, the nonmoving party must

go beyond the pleadings and point to "specific facts

demonstrating the existence of genuine issues for trial." In re

Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010).

“This burden is not a light one. . . . The non-moving party must

do more than show there is some 'metaphysical doubt' as to the

material facts at issue.” Id. (citation omitted).

A dispute as to a material fact is genuine "if the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,

19 - OPINION AND ORDER

Inc., 477 U.S. 242, 248 (1986)). The court must draw all

reasonable inferences in favor of the nonmoving party. Sluimer

v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary

judgment cannot be granted where contrary inferences may be drawn

from the evidence as to material issues." Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citing Sherman Oaks Med. Arts

Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598

(9th Cir. 1982)).

"A non-movant's bald assertions or a mere scintilla of

evidence in his favor are both insufficient to withstand summary

judgment." F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir.

2009)(citation omitted). When the nonmoving party's claims are

factually implausible, that party must "come forward with more

persuasive evidence than otherwise would be necessary." LVRC

Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)

(citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149

(9th Cir. 1998)).

The substantive law governing a claim or a defense

determines whether a fact is material. Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the

resolution of a factual dispute would not affect the outcome of

the claim, the court may grant summary judgment. Id.

20 - OPINION AND ORDER

DISCUSSION

As noted, Defendant moves for summary judgment as to both of

Plaintiff’s claims.

I. First Part of Plaintiff’s First Claim for Race

Discrimination in Violation of Title VII, 42 U.S.C.

§ 2000e-2; 42 U.S.C. § 1981; and Oregon Revised Statutes

§ 659A.030(1)(a) and (b)

Plaintiff alleges in the first part of his First Claim that

Defendant discriminated against him on the basis of his race in

violation of Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C. § 1981;

and Oregon Revised Statutes § 659A.030(1)(a) and (b) when

Defendant terminated Plaintiff’s employment and when Defendant

issued the Disciplinary Counseling Memoranda to Plaintiff.

Defendant, in turn, asserts it is entitled to summary

judgment on the first part of Plaintiff’s First Claim on the

grounds that (1) plaintiff cannot establish a prima facie case of

discrimination, (2) Defendant had legitimate, nondiscriminatory

reasons for issuing the counseling memoranda to Plaintiff and

terminating Plaintiff’s employment, and (3) Plaintiff cannot

establish a genuine dispute of material fact exists as to whether

Defendant’s reasons were pretext for discrimination.

A. Standards

The Ninth Circuit recently reiterated “on a motion for

summary judgment, [the court must] evaluate [a plaintiff’s] Title

VII racial . . . discrimination claim[] using the three-part

21 - OPINION AND ORDER

burden-shifting framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).” Pavel v. Univ. of Oregon, No. 18-

35287, 2019 WL 2295867, at *2 (9th Cir. May 29, 2019). Under the

McDonnell Douglas framework

a plaintiff may establish a prima facie case of

discrimination by demonstrating that: (1) he is a

member of a protected class; (2) he was qualified

for his position and performing satisfactorily;

(3) he experienced an adverse employment action,

and (4) similarly situated individuals outside his

protected class were treated more favorably, or

other circumstances surrounding the adverse

employment action give rise to an inference of

discrimination.

Id. (citing Hawn v Exec. Jet Mgmt. Inc., 615 F.3d 1151, 1156 (9th

Cir. 2010)). “If a plaintiff establishes a prima facie showing

of discrimination, ‘the burden of production, but not persuasion,

then shifts to the [defendant] to articulate some legitimate,

non-discriminatory reason for the challenged action.’” Id.

(quoting Hawn, 615 F.3d at 1155). If a defendant articulates a

legitimate, nondiscriminatory reason for the challenged action,

the plaintiff “‘must then raise a triable issue of material fact

as to whether the defendant’s proffered reasons for [the

plaintiff’s] termination are mere pretext for unlawful

discrimination.’” Id. (quoting Hawn, 615 F.3d at 1155).

“Claims brought under 42 U.S.C. § 1981 and ORS 659A.030 are

analyzed under the same legal standards” as those brought

pursuant to Title VII. Gollah v. City of Millersburg, No. 6:18-

CV-01412-MC, 2018 WL 6183268, at *2 (D. Or. Nov. 27, 2018)(citing

22 - OPINION AND ORDER

DeWeese v. Cascade Gen. Shipyard, No. 08-cv-860-JE, 2011 WL

3298421, at *7 (D. Or. May 2, 2011)(“The same legal standards

apply when analyzing claims brought pursuant to” ORS 659A.030,

42 U.S.C. § 1981, and Title VII.)). See also Manatt v. Bank of

Am., NA, 339 F.3d 792, 797 (9th Cir. 2003)(“We also recognize

that those legal principles guiding a court in a Title VII

dispute apply with equal force in a § 1981 action.”).

B. Plaintiff’s Termination

As noted, Plaintiff asserts in the first part of his

First Claim that Defendant discriminated against him on the basis

of his race in violation of Title VII, 42 U.S.C. § 2000e-2; 42

U.S.C. § 1981; and Oregon Revised Statutes § 659A.030(1) when

Defendant terminated his employment. Defendant asserts Plaintiff

has not established a prima facie case of discrimination; that

Defendant had legitimate, nondiscriminatory reasons to terminate

Plaintiff’s employment; and that Plaintiff has not established

Defendant’s reasons were pretextual.

1. Plaintiff has not established a prima facie case

of disparate treatment as to his termination.

Defendant asserts Plaintiff cannot establish a

prima facie case of disparate treatment because Plaintiff cannot

establish there was any similarly-situated employee outside of

his protected class who was treated more favorably. “To satisfy

[the similarly-situated employee] element, [the plaintiff] must

23 - OPINION AND ORDER

identify employees outside [his] race . . . who were similarly

situated to [him] ‘in all material respects’ but who were given

preferential treatment; they must ‘have similar jobs and display

similar conduct.’” Campbell v. Haw. Dep't of Ed., 892 F.3d 1005,

1015 (9th Cir. 2018)(quoting Nicholson v. Hyannis Air Serv.,

Inc., 580 F.3d 1116, 1125 (9th Cir. 2009)). The Ninth Circuit

has held the “burden at [the prima facie] stage is ‘not

onerous’[; however, the plaintiff] must still produce some

evidence to meet [his] burden.” Franett-Fergus v. Omak Sch.

Dist. 19, 743 F. App'x 855, 857 (9th Cir. 2018)(quoting Lyons v.

England, 307 F.3d 1092, 1112 (9th Cir. 2002)).

Defendant asserts Plaintiff has not pointed to any

employee outside of his protected class who was treated more

favorably when he or she made a significant threat that concerned

other employees to the extent that they reported it to

management, that caused other employees to express concern about

remaining in the office, that caused the office to be closed for

half a day, and who was also under a Disciplinary Counseling

Memorandum.

In his Response Plaintiff points to Megan Howell,

another Enrollment Coach, who, according to Plaintiff, “jokingly

threatened her coworkers” by saying she was going to kill them

while drawing her hand across her throat, but Howell was not

terminated. It is undisputed, however, that employees did not

24 - OPINION AND ORDER

report Howell’s behavior to management or indicate her statements

and actions caused anyone to feel they had a “professional

responsibility” to report the statement because they could be

“putting [themselves] and the 20 other people that were [at the

office] at risk.” JSAF at ¶ 116. The Ninth Circuit held in Hawn

that conduct by an employee that results in complaints to

management is not substantially similar to conduct by an employee

that does not result in complaints. 615 F.3d at 1160. The court

further noted: “We have distinguished misconduct by one employee

from misconduct by another employee on the basis of whether it

prompted complaints or consternation by other employees.” Id.

Specifically, in Hawn the Ninth Circuit noted it held in Meyer v.

California and Hawaiian Sugar Company that when “there was no

evidence that the male employees' remarks had ‘provoked anything

comparable to the vigorous reaction’ that resulted from the

plaintiff's comments, the other incidents were ‘not such

parallels to her case as to raise a genuine issue of pretext.’”

615 F.3d at 1160 (quoting Meyer, 662 F.3d 637, 640 (9th Cir.

1981)). The court also noted in Hawn that “[t]he presence of

complaints has also been deemed a valid distinguishing factor by

other circuits.” 615 F.3d at 1160 (citing Yeager v. City Water &

Light Plant, 454 F.3d 932, 934 (8th Cir. 2006), and Morrow v.

Wal–Mart Stores, Inc., 152 F.3d 559, 560 (7th Cir. 1998)).

In addition, it is undisputed that Howell’s

25 - OPINION AND ORDER

alleged actions and statements did not cause police to come to

the coaching center or cause the coaching center to close early.

The Court concludes the fact that the nature of Plaintiff’s

comments caused employees to report them to management and caused

other employees to report to management that they did not feel

comfortable remaining at work reflects the conduct of Howell and

Plaintiff was not “substantially similar.”

Finally, even if the alleged statements and

conduct of Howell and Plaintiff were substantially similar, the

record reflects Howell did not have an extensive history of poor

performance, any disciplinary counseling memoranda, or any

written discipline.

On this record the Court concludes Plaintiff has

not established a prima facie case of disparate treatment as to

his termination because Plaintiff has not shown there was any

similarly-situated employee outside of his protected class who

was treated more favorably.

2. Defendant has articulated a legitimate,

nondiscriminatory reason for terminating

Plaintiff’s employment.

Even if Plaintiff established a prima facie case

of disparate treatment as to his termination, Defendant asserts

it had legitimate, nondiscriminatory reasons for terminating

Plaintiff based on Plaintiff’s bomb threat and poor performance.

As noted, when “a plaintiff establishes a prima

26 - OPINION AND ORDER

facie showing of discrimination, ‘the burden of production, but

not persuasion, then shifts to the [defendant] to articulate some

legitimate, non-discriminatory reason for the challenged

action.’” Pavel, 2019 WL 2295867, at *2 (quoting Hawn, 615 F.3d

at 1155). Here Defendant asserts it terminated Plaintiff’s

employment for the bomb-threat comments and for his poor

performance, which are both legitimate, nondiscriminatory reasons

to terminate employment. See, e.g., Nguyen v. Dep’t of Navy, 412

F. App’x 926, 929 (9th Cir. 2011)(“Even assuming [the plaintiff]

established a prima facie case, the record shows [the defendant]

had legitimate, nondiscriminatory and nonretaliatory reasons for

disciplining and ultimately removing [the plaintiff], including

her substandard communications skills, low performance ratings

and complaints from her customers, [and] poor attendance.”);

Johnson v. AT&T Corp., 422 F.3d 756, 762 (8th Cir. 2005)

(concluding the defendant’s belief that the plaintiff had

threatened to bomb its facility was a legitimate,

nondiscriminatory reason to terminate the plaintiff’s employment

even if the defendant was mistaken in its belief).

On this record the Court concludes Defendant has

articulated legitimate, nondiscriminatory reasons for terminating

Plaintiff.

3. Plaintiff has not established Defendant’s reasons

were mere pretext.

As noted, when a defendant articulates legitimate,

27 - OPINION AND ORDER

nondiscriminatory reasons for the challenged action, the

plaintiff “‘must then raise a triable issue of material fact as

to whether the defendant’s proffered reasons for [the

plaintiff’s] termination are mere pretext for unlawful

discrimination.’” Pavel, 2019 WL 2295867, at *2 (quoting Hawn,

615 F.3d at 1155).

Plaintiff asserts Defendant’s stated reasons for

terminating him were mere pretext because Defendant provided

inconsistent explanations, Defendant did not follow its own

protocol when it terminated Plaintiff’s employment, and Defendant

selectively enforced its Workplace Violence Policy.

a. Defendant’s Explanations for Terminating

Plaintiff’s Employment

Plaintiff asserts the inconsistency of

Defendant’s explanations for terminating Plaintiff’s employment

are evidence that those explanations are mere pretext.

Specifically, Plaintiff asserts Defendant told Plaintiff at the

time of his termination that he was terminated due to his

violation of Defendant’s Workplace Violence Policy, but Defendant

told BOLI that Plaintiff was terminated for performance reasons

and Chughtai testified at deposition that Plaintiff was

terminated for both reasons.

When Chughtai recommended Plaintiff’s

termination in February 2016, the record reflects Chughtai’s

report noted Plaintiff’s bomb comments as well as the fact that

28 - OPINION AND ORDER

Plaintiff “ha[d] been on a final warning since September 2015”

for performance-related issues. In addition, Defendant’s

February 11, 2016, response to BOLI’s request for separation

information specified Plaintiff was terminated “due to

performance” and his failure “to follow instructions/policy/

contract.” [Plaintiff’s] Counsel Decl., Ex. 71 at 2-3. The

record, therefore, reflects Defendant’s reasons for terminating

Plaintiff’s employment have been consistent: Plaintiff’s bomb

comments and his inadequate performance. The Court, therefore,

concludes on this record that Plaintiff has failed to establish

the alleged discrepancies that provide an inference of pretext.

b. Defendant’s Protocol in Terminating

Plaintiff’s Employment

Plaintiff also asserts Defendant’s stated

reasons for Plaintiff’s termination are mere pretext because

Defendant did not follow its own protocol when it terminated

Plaintiff.

The Ninth Circuit has held: “‘A plaintiff

may . . . raise a triable issue of pretext through evidence that

an employer’s deviation from established policy or practice

worked to [his] disadvantage.’” Merrick v. Hilton Worldwide,

Inc., 867 F.3d 1139, 1149 (9th Cir. 2017)(quoting Earl v. Nielsen

Media Research, Inc., 658 F.3d 1108, 1112 (9th Cir. 2011)). “But

such a deviation must be considered in context and may not always

be sufficient to infer a discriminatory motive.” Merrick, 867

29 - OPINION AND ORDER

F.3d at 1149 (citation omitted).

Plaintiff asserts Chief Financial Officer and

Executive Vice Chancellor of Finance and Administration Phillip

Doolittle was not consulted about the decision to terminate

Plaintiff’s employment until after Plaintiff was terminated,

which is in violation of Defendant’s policies. Plaintiff relies

on a February 3, 2016, email from Doolittle to Bresler in which

Doolittle states:

Dina advised me on the personnel action being

taken in Portland. It is probably the right

action, but I thought that you and I had

agreed from an internal protocol perspective

that all employee terminations would be

reviewed by me before implementation.

Decl. of Phillip Doolittle, Ex. 1 at 2. Defendant, however,

notes Doolittle also states in his February 3, 2016, email: “I

am hearing . . . that we are closing one of our campuses (LA) and

laying off two of [sic] employees. Again, I have not been

briefed on the termination planning for these two employees.”

Doolittle Decl., Ex. 1 at 2. In addition, Bresler testified at

deposition that there were “one or two instances where

[Doolittle] might have been on vacation, or otherwise

unavailable” and Defendant terminated employees without

consulting Doolittle first. Tripp Suppl. Decl., Ex. 8. Thus,

although it may have been internal protocol, the record reflects

Doolittle was not consulted before every employee termination.

In addition, Defendant asserts the deviation

30 - OPINION AND ORDER

from Defendant’s internal protocol did not “work to [Plaintiff’s]

disadvantage” because Doolittle states in his February 3, 2016,

email that he “did not disagree with the decision to terminate

[Plaintiff’s] employment” and it was “probably the right action.”

Doolittle Decl. at ¶ 4; Doolittle Decl., Ex. 1 at 2. Thus, even

if Doolittle had been consulted in advance of Plaintiff’s

termination, Defendant still would have terminated Plaintiff.

The Court, therefore, concludes on this

record that Defendant’s failure to follow internal protocol when

“considered in context” does not support an inference that

Defendant’s stated reasons for terminating Plaintiff’s employment

were mere pretext.

c. Defendant’s Selective Enforcement of Its

Workplace Violence Policy

Plaintiff alleges Defendant selectively

enforced its Workplace Violence Policy, which raises an inference

that Defendant’s stated reasons for terminating Plaintiff’s

employment were mere pretext.

Defendant’s Workplace Violence Policy

provides:

[T]he University has established a policy

that provides "zero tolerance" for actual or

threatened violence against co-workers,

faculty, students, visitors, vendors, or any

other persons who are either on our premises

or have contact with employees in the course

of their duties.

* * *

31 - OPINION AND ORDER

Threatening behavior may include but is not

limited to:

• Throwing objects

• Making a verbal threat to harm another

individual or destroy property

• Making menacing gestures

• Verbalizing grudges against co-workers

• Attempting to intimidate individuals

• Behavior indicating that the individual

may pose a danger either to himself or

herself or to others

• Engaging in shouting, threatening

gestures or physical contact,

• Bringing firearms or weapons of any kind

onto the premises.

Employees who become aware of any threat or

act of workplace violence must immediately

report the incident to a supervisor and to

Human Resources. If an employee feels at

risk, he or she should contact local law

enforcement authorities by dialing 911.

Chughtai Dep., Ex. 8 at 1 (emphasis added).

Plaintiff alleges the record reflects there

were multiple violations of Defendant’s Workplace Violence Policy

by Caucasians that did not result in discipline. In fact,

Plaintiff points to testimony that individuals outside of

Plaintiff’s class were not disciplined for violating the

Workplace Violence Policy when they threw balls, bean bags, and

paper airplanes in the workplace; brought mace into the office;

and threatened to kill another employee.

Defendant notes its Workplace Violence Policy

states threatening behavior may include throwing objects or

bringing weapons to work. “May” indicates the context in which

32 - OPINION AND ORDER

those things occur is important. The record reflects people in

Plaintiff’s workplace threw balls, beanbags, and paper airplanes

only when playing games. See Kobold Dep. at 14-15; Mumford Dep.

at 26. In addition, there is not any indication in the record

that any employee complained to management or reported feeling

unsafe due to employees throwing balls, beanbags, or paper

airplanes. Although some employees brought mace to the office,

the record reflects the employees who did so were “young, female

employees who . . . [took] public transit and [had mace] for

personal safety.” Mumford Dep. at 25. The record does not

reflect any employee complained to management or reported feeling

unsafe due to employees bringing mace to the office. In

addition, the threat to kill another employee was by Megan

Howell, who, according to Plaintiff, “jokingly threatened her

coworkers” by saying she was going to kill them while drawing her

hand across her throat. As the Court noted earlier, it is

undisputed that employees did not report Howell’s behavior to

management or indicate her statements and actions caused any

employee to feel threatened, nervous, or unsafe.

On this record the Court concludes Defendant

did not selectively enforce its Workplace Violence Policy in such

a way that supports an inference that Defendant’s stated reasons

for terminating Plaintiff were mere pretext.

In summary, the Court concludes on this record that

33 - OPINION AND ORDER

Plaintiff has not “raise[d] a triable issue of material fact as

to whether the defendant’s proffered reasons for [the

plaintiff’s] termination are mere pretext for unlawful

discrimination.” Accordingly, the Court grants Defendant’s

Motion for Summary Judgment as to the first part of Plaintiff’s

First Claim in which he alleges Defendant discriminated against

Plaintiff on the basis of his race in violation of Title VII, 42

U.S.C. § 2000e-2; 42 U.S.C. § 1981; and Oregon Revised Statutes

§ 659A.030(1)(a) and (b) when it terminated his employment.

C. Disciplinary Counseling Memoranda

Plaintiff also alleges in the first part of his First

Claim that Defendant discriminated against him on the basis of

his race in violation of Title VII, 42 U.S.C. § 2000e-2; 42

U.S.C. § 1981; and Oregon Revised Statutes § 659A.030(1) when it

issued the Disciplinary Counseling Memoranda.

Defendant asserts it is entitled to summary judgment on

this part of Plaintiff’s First Claim because there is not any

evidence that the Disciplinary Counseling Memoranda constituted

adverse employment actions, that Defendant treated Plaintiff

differently than similarly-situated employees outside of his

class, or that Defendant’s reasons for issuing the Disciplinary

Counseling Memoranda to Plaintiff were mere pretext.

As noted, to establish a prima facie case of employment

discrimination a plaintiff must show he “‘experienced an adverse

34 - OPINION AND ORDER

employment action.’” Pavel, 2019 WL 2295867, at *2 (quoting

Hawn, 615 F.3d at 1155). An “adverse employment action is one

that ‘materially affect[s] the compensation, terms, conditions,

or privileges of . . . employment.’” Bastidas v. Good Samaritan

Hosp. LP, No. 17-16432, 2019 WL 2156430, at *1 (9th Cir. May 16,

2019)(quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th

Cir. 2008)).

Defendant asserts the Disciplinary Counseling Memoranda

issued to Plaintiff were not adverse employment actions because

they did not result in demotions, loss of pay, loss or decrease

in work privileges, or ineligibility for promotion. Plaintiff

does not address Defendant’s assertion that the Disciplinary

Counseling Memoranda were not adverse employment actions nor does

he identify any way in which the Disciplinary Counseling

Memoranda materially affected the compensation, terms,

conditions, or privileges of his employment.

Courts have concluded “[w]ritten warnings are generally

‘not adverse employment actions where they do not materially

affect the terms and conditions of employment.’” Neely v. Boeing

Co., No. C16-1791-JCC, 2019 WL 2178648, at *6 (W.D. Wash. May 20,

2019)(quoting Sanchez v. Cal., 90 F. Supp. 3d 1036, 1056 (E.D.

Cal. 2015)). See also Grimmett v. Knife River Corp.-Northwest,

No. CV–10–241–HU, 2011 WL 841149, at *9 (D. Or. Mar. 8, 2011)

(concluding a written warning was not an adverse employment

35 - OPINION AND ORDER

action in a race-discrimination case); Hoang v. Wells Fargo Bank,

N.A., 724 F. Supp. 2d 1094 (D. Or. 2010)(concluding a warning

letter that did not implement material change in the terms and

conditions of the plaintiff’s employment was not by itself an

adverse employment action).

The Court concludes on this record that Plaintiff has

not established a genuine dispute of material fact exists as to

whether the Disciplinary Counseling Memoranda were adverse

employment actions. The Court, therefore, concludes Plaintiff

has not established a prima facie case of discrimination with

respect to issuance of the Disciplinary Counsel Memoranda.

Accordingly, the Court grants Defendant’s Motion for

Summary Judgment as to that portion of Plaintiff’s First Claim in

which he alleges Defendant discriminated against him on the basis

of his race in violation of Title VII, 42 U.S.C. § 2000e-2; 42

U.S.C. § 1981; and Oregon Revised Statutes § 659A.030(1) when it

issued the Disciplinary Counseling Memoranda.

In summary, the Court grants Defendant’s Motion for Summary

Judgment as to the first part of Plaintiff’s First Claim for race

discrimination.

II. Second Part of Plaintiff’s First Claim for Race

Discrimination in Violation of Title VII, 42 U.S.C.

§ 2000e-2; 42 U.S.C. § 1981; and Oregon Revised Statutes

§ 659A.030(1)(a) and (b)

In the second part of Plaintiff’s First Claim for race

discrimination Plaintiff alleges Defendant discriminated against

36 - OPINION AND ORDER

him on the basis of his race in violation of Title VII, 42 U.S.C.

§ 2000e-2; 42 U.S.C. § 1981; and Oregon Revised Statutes

§ 659A.030(1)(a) and (b) when it subjected him to a hostile work

environment.

A. The Law

“To establish a [hostile work environment] prima facie

case, [the plaintiff] must be able to show that, because of [his]

race . . . [he] was subjected to unwelcome conduct that was

‘sufficiently severe or pervasive to alter the conditions of

[her] employment and create an abusive working environment.’”

Campbell v. Haw. Dep’t of Ed., 892 F.3d 1005, 1016-17 (9th Cir.

2018)(quoting Fuller v. Idaho Dep't of Corr., 865 F.3d 1154, 1161

(9th Cir. 2017)). “The work environment must be both

subjectively and objectively perceived as abusive.” Campbell,

892 F.3d at 1017. The Court must “consider all circumstances,

with a particular focus on issues such as the frequency and

severity of the conduct, whether the conduct was physically

threatening or humiliating, and the extent to which it

unreasonably interfered with [the plaintiff’s] work performance.”

Id.

The plaintiff “must also be able to show that the

[employer] is liable for the harassment that caused the hostile

environment to exist.” Campbell, 892 F.3d at 1017 (quotation

omitted). An employer “may be held to account for [employee’s]

37 - OPINION AND ORDER

actions only if, after learning of the harassment, [management]

failed to take prompt corrective measures that were reasonably

calculated to end the harassment.” Id. (quotation omitted). The

Ninth Circuit explained in Campbell:

The most significant immediate measure an employer

can take in response to a sexual harassment

complaint is to launch a prompt investigation to

determine whether the complaint is justified

. . . . Such an investigation, itself, is a

warning, not by words but by action that puts all

parties on notice that [the employer] takes such

allegations seriously and will not tolerate

harassment in the workplace. Even where a

complaint is found to be true, sometimes

counseling or formally warning the perpetrator may

be a sufficient response if the circumstances

suggest that such action is reasonably expected to

end the problem. . . . Of course, if the

harassment continues, then the employer may need

to escalate to more aggressive disciplinary

measures as less severe measures prove inadequate.

892 F.3d at 1018 (quotations and citations omitted).

B. Statements Made by Coworkers

At deposition Plaintiff asserted his claim for hostile

work environment was based on five incidents:

(1) “On . . . February 26, 2015, a coworker told

[Plaintiff] that he was "the whitest black guy [she]

know[s].”

(2) “On . . . June 4, 2015, Potter made a reference to

[Plaintiff] playing basketball, and [Plaintiff]

believed it was made because he is African American.”

(3) “At some point, Potter said that [Plaintiff] looked

38 - OPINION AND ORDER

like Wesley Snipes.”

(4) In November 2015 Enrollment Coach Nathan Dunkin said:

"Oh, look. Look at Demetrye.” Plaintiff asked Dunkin:

“Why, because he's black?” Dunkin responded: “No

because he's just a little -- cute little kid, just,

you know, that's it. Just simple.”

(5) In November 2015 Enrollment Coach Anthony Potter said

to Plaintiff: “You can't hide behind the door. You're

black. You can't hide behind this white wall.”

JSAF at ¶ 83.

The Ninth Circuit has held statements and actions

significantly more severe and pervasive than the ones made by

Plaintiff’s coworkers and supervisors were insufficient to

establish a hostile work environment. For example, in Manatt v.

Bank of America, NA, the plaintiff’s coworkers pulled their eyes

back with their fingers to imitate or mock the appearance of

Asians on several occasions; a coworker said to the plaintiff:

“China woman, China woman, China woman, get your butt over here”;

a coworker ridiculed the plaintiff in front of other coworkers

for the way the plaintiff pronounced “Lima,” and the coworkers

laughed and said: “That's because she's a China woman”; a

coworker said to the plaintiff's supervisor: “I am not a China

man, I'm not like China men with their eyes like that,” and the

supervisor smiled in response; the plaintiff's supervisor told

39 - OPINION AND ORDER

her: “I've had the worst kind of trouble with your countrymen”;

the plaintiff’s coworkers made derogatory references to

“rickshaw[s]”; the plaintiff’s coworkers used the phrase “China

man” in a joking manner on multiple occasions; and the

plaintiff’s coworkers referred to Chinese people as “those

communists from Beijing.” 339 F.3d 792, 795-96. The Ninth

Circuit noted Title VII “is not a general civility code,” and

“simple teasing, offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in

the ‘terms and conditions of employment.’” Id. (quotations

omitted). The Ninth Circuit concluded the conduct alleged by the

plaintiff “f[ell] into the ‘simple teasing’ and ‘offhand

comments’ category of non-actionable discrimination” and,

therefore, did not create a hostile work environment. Id. at

798. See also EEOC v. Prospect Airport Servs., Inc., 621 F.3d

991, 998 (9th Cir. 2010)(“A violation is not established merely

by evidence showing sporadic use of abusive language, gender-

related jokes, and occasional teasing.”); Vasquez v. Cty. of Los

Angeles, 307 F.3d 884, 893 (9th Cir. 2002)(the plaintiff failed

to establish a hostile environment claim when he was told he had

“a typical Hispanic macho attitude,” that he should work in the

field because “Hispanics do good in the field,” and he was yelled

at in front of others); Kortan v. Cal. Youth Auth., 217 F.3d

1104, 1111 (9th Cir. 2000)(the plaintiff did not establish a

40 - OPINION AND ORDER

hostile work environment claim when her supervisor referred to

females as “castrating bitches,” “Madonnas,” or “Regina” in front

of the plaintiff on several occasions and called plaintiff

“Medea”). Based on the above cases, the Court concludes

Plaintiff has not established conduct by Defendant that was

“sufficiently severe or pervasive to alter the conditions of

[Plaintiff’s] employment and create an abusive working

environment.”

In addition, even if these statements were sufficiently

severe and pervasive to constitute a claim for hostile work

environment, the record reflects Plaintiff did not report

statements 1-3 to a member of Defendant’s Human Resources

Department or to a manager. Defendant has a Policy Prohibiting

Harassment that was provided to Plaintiff when he began his

employment. The Policy provides any employee who believes he has

been subject to harassment should inform his immediate

supervisor, “a management representative of [Defendant],” the

Employee Relations Manager, or the Associate Vice Chancellor of

Human Resources. Tripp Decl., Ex. 15 at 31. As noted, Plaintiff

did not report these statements to any of the individuals set out

in the Policy or to any other management personnel. Moreover,

the Ninth Circuit has made clear that an employer “may be held to

account for [employee’s] actions only if, after learning of the

harassment, [management] failed to take prompt corrective

41 - OPINION AND ORDER

measures that were reasonably calculated to end the harassment.”

Campbell, 892 F.3d at 1017 (quotation omitted). Here there is

not any evidence from which the Court can infer Defendant knew or

should have known about statements 1-3. The Court, therefore,

concludes Defendant “may [not] be held to account for” statements

1-3.

Plaintiff, however, reported statements 4 and 5 in

November 2015 to Larson, who is a manager. Larson met with both

Duncan and Potter, counseled them on making offensive comments,

and warned them that their comments to Plaintiff were

inappropriate and offensive. Subsequently Duncan and Potter both

apologized to Plaintiff. Plaintiff was “satisfied with the

response and felt that the issue had been resolved.” JSAF at

¶ 81. Plaintiff then sent Larson an email in which he stated:

“Again, I want to thank you for listening and taking care of the

issues I had with Nathan and Tony regarding the racial comments

they've made. I appreciate you immediately delving into this

issue, and rectify[ing] it.” JSAF at ¶ 82. The Ninth Circuit

has stated even when “a complaint is found to be true, sometimes

counseling or formally warning the perpetrator may be a

sufficient response if the circumstances suggest that such action

is reasonably expected to end the problem.” Campbell, 892 F.3d

at 1018. Here the record does not show Duncan and/or Potter made

any further offensive comments to Plaintiff, and, therefore,

42 - OPINION AND ORDER

there is not any indication that Defendant needed “to escalate to

more aggressive disciplinary measures” to address the conduct by

Plaintiff’s coworkers. Thus, even if statements 4 and 5 had been

sufficiently severe and pervasive to support a claim for hostile

work environment, Plaintiff has not established Defendant failed

to take sufficient action to address the situation.

Accordingly, the Court grants Defendant’s Motion for

Summary Judgment as to the second part of Plaintiff’s First Claim

to the extent that it is based on these statements.

C. Implicit Bias

In his Response to Defendant’s Motion for Summary

Judgment Plaintiff asserts his claim of hostile work environment

is also based on a “hidden or implicit bias and the effect it can

have in disproportionate discipline or disparate enforcement of

policies.” Pl.’s Resp. at 32. Plaintiff does not cite any

authority nor could this Court find any authority that a hidden

or implicit bias can support a claim for hostile work

environment. In addition, Plaintiff does not cite to evidence in

the record that shows any alleged hidden or implicit bias

resulted in an environment of the kind that the Ninth Circuit has

concluded constitutes a hostile work environment. Accordingly,

the Court grants Defendant’s Motion for Summary Judgment as to

the second part of Plaintiff’s First Claim to the extent that it

is based on an alleged implicit or hidden bias.

43 - OPINION AND ORDER

In summary, the Court grants Defendant’s Motion for Summary

Judgment as to the second part of Plaintiff’s First Claim for a

hostile work environment.

III. Plaintiff’s Second Claim for Retaliation for Opposing

Discrimination in Violation of Title VII, 42 U.S.C.

§ 2000e-3; Oregon Revised Statutes § 659A.030(f); and Oregon

Revised Statutes § 659A.199

In his Second Claim he alleges Defendant retaliated against

him for opposing discrimination in violation of Title VII, 42

U.S.C. § 2000e-3; Oregon Revised Statutes § 659A.030(f); and

Oregon Revised Statutes § 659A.199. Specifically, Plaintiff

alleges Defendant terminated Plaintiff’s employment in

retaliation for making his August 6, 2015, complaint of

discrimination.

Defendant asserts it is entitled to summary judgment on

Plaintiff’s Second Claim on the grounds that Plaintiff cannot

establish a causal link between his August 6, 2015, complaint and

his termination; that Defendant had legitimate, nondiscriminatory

reasons for terminating Plaintiff’s employment; and that

Plaintiff cannot establish a genuine dispute of material fact

exists as to whether Defendant’s reasons were pretext for

retaliation.

A. The Law

To establish a prima facie case of retaliation under

Title VII, 42 U.S.C. § 2000e-3; Oregon Revised Statutes

44 - OPINION AND ORDER

§ 659A.030(1)(f); and Oregon Revised Statutes § 659A.199 “a

plaintiff must demonstrate: ‘(1) [he] was engaging in protected

activity, (2) the employer subjected [him] to an adverse

employment decision, and (3) there was a causal link between the

protected activity and the employer's action.’” Branford v. Wa.

Cty., Oregon, No. 3:17- CV-94-SI, 2019 WL 1957951, at *15 (D. Or.

May 2, 2019)(quoting Pool v. VanRheen, 297 F.3d 899, 910 (9th

Cir. 2002)). See also Tornabene v. N.W. Permanente, P.C., 156 F.

Supp. 3d 1234, 1242 (D. Or. 2015)(“The substantive analysis for

discrimination under Title VII . . . and ORS § 659A.030 . . . is

substantially similar, and courts often analyze such claims

together.”); Larmanger v. Kaiser Found. Health Plan of the N.W.,

895 F. Supp. 3d 1033, 1053 (D. Or. 2012)(“The elements of a prima

facie case under § 659A.030(1)(f) and the analysis of a claim

under that statute do not differ in any substantive way from the

standards that govern or the analysis that applies to Plaintiff's

other whistleblowing and retaliation claims” under Title VII and

§ 659A.199.).

To establish causation the plaintiff must show his

protected activity was a “‘substantial factor in the motivation

to discharge the employee.’” Sandberg v. City of North Plains,

No. 10–CV–1273–HZ, 2012 WL 602434, at *7 (Feb. 22, 2012)(quoting

Estes v. Lewis and Clark Coll., 152 Or. App. 372, 381 (1998)).

See also Huff v. City of Portland, Civ. No. 05–1831–AA, 2008 WL

45 - OPINION AND ORDER

1902760, at *6 (D. Or. Apr. 28, 2008)(“Plaintiff bears the burden

of establishing that her alleged disclosures constituted 'a

substantial factor' in the discontinuation of her employment.”).

“[T]o be a substantial factor, the employer's wrongful purpose

must have been ‘a factor that made a difference’ in the discharge

decision.” Estes, 152 Or. App. at 381 (citing Nelson v. Emerald

People's Util. Dist., 116 Or. App. 366, 373 (1992)).

If the plaintiff establishes a prima facie case, the

burden shifts to the defendant to rebut the inference of

retaliation by offering a legitimate, nondiscriminatory reason

for the employee's termination. If the defendant successfully

rebuts the inference of retaliation, the burden of production

shifts back to the plaintiff to show that the defendant's

explanation is merely a pretext for impermissible retaliation.

Neighorn v. Quest Health Care, No. 1:10-CV-03105-CL, 2012 WL

1566176, at *28 (D. Or. May 2, 2012). See also Dawson v. Entek

Int'l, 630 F.3d 928, 936 (9th Cir. 2011)(McDonnell-Douglas

burden-shifting framework applies to state and federal claims).

B. Causal link

As noted, Defendant asserts Plaintiff cannot establish

a causal link between his August 6, 2015, complaint of

discrimination and his February 3, 2016, termination. Plaintiff,

however, asserts a causal connection between his complaint and

his termination can be inferred from the temporal proximity of

46 - OPINION AND ORDER

the two events.

“A plaintiff can establish a causal connection between

her protected activity and the adverse employment action

. . . indirectly, by showing that the protected activity was

followed closely by” the adverse employment action. Huitt v.

Optum Health Servs., 216 F. Supp. 3d 1179, 1193 (D. Or. 2016).

“Courts[, however,] have made clear that when a plaintiff

‘attempts to establish the causal connection indirectly [by]

relying on mere temporal proximity between the events, the events

must be ‘very close’ in time.” Id. (quoting Boynton–Burns v.

Univ. of Or., 197 Or. App. 373, 380–81 (2005)). For example, in

Pavel the Ninth Circuit held “a temporal proximity of three

months is by itself insufficient circumstantial evidence to

defeat a motion for summary judgment.” 2019 WL 2295867, at *2.

Similarly, in Miller v. Clark County School District the Ninth

Circuit held the plaintiff failed to establish that a genuine

dispute of material fact existed as to whether his protected

conduct was a motivating factor in his termination when the

plaintiff engaged in the allegedly protected activity “more than

a month” before the defendant terminated his employment “for

insubordination.” 378 F. App’x 623, 626 (9th Cir. 2010).

Similarly, in Swan v. Bank of America the Ninth Circuit concluded

the plaintiff could not establish her termination was “causally

related” to her medical leave because the defendant terminated

47 - OPINION AND ORDER

the plaintiff’s employment “four months after her return from

leave, which is too remote in time to support a finding of

causation premised solely on temporal proximity.” 360 F. App’x

903, 906 (9th Cir. 2009)(citing Clark Cty. Sch. Dist. v. Breeden,

532 U.S. 268, 273 (2001)). See also Redwind v. W. Union, LLC,

No. 3:14-CV-01699-AC, 2016 WL 3606595, at *19 (D. Or. May 2,

2016)(concluding five months between the protected activity and

the adverse employment action is insufficient temporal proximity

to support a finding of causation); Talbot v. New Seasons Mkt.,

LLC, No. 03:12-CV-00141-HZ, 2012 WL 6738271, at *7 (D. Or.

Dec. 27, 2012)(concluding two months between the protected

activity and the adverse employment action is insufficient

temporal proximity to support a finding of causation); Kadiyan v.

Medtronic, No. CV1005921MMMMANX, 2011 WL 13142145, at *15 (C.D.

Cal. Apr. 8, 2011)(concluding six months between the protected

activity and the adverse employment action is insufficient

temporal proximity to support a finding of causation). In

several cases district courts in the Ninth Circuit have concluded

even longer periods such as seven to nine months between the

protected activity and the adverse action does not constitute

sufficient temporal proximity to establish a causal connection.

See, e.g., Anderson v. City and Cty. of San Francisco, 169 F.

Supp. 3d 995, 1028 (N.D. Cal. Mar. 14, 2106)(seven months is

insufficient); Santa Ana Police Officers Ass'n v. City of Santa

48 - OPINION AND ORDER

Ana, No: SA CV 15–1280–DOC(DFMx), 2016 WL 827750, at *12 (C.D.

Cal. Mar. 2, 2016)(eight months is insufficient).

Here there were six months between the time Plaintiff

made his August 2015 complaint of discrimination and February

2016 when Defendant terminated his employment. Thus, the Court

concludes Plaintiff’s discrimination complaint and his

termination are not sufficiently close in time to establish a

causal connection between his protected activity and the adverse

employment action.

In his Response to Defendant’s Motion for Summary

Judgment Plaintiff also asserts his complaints to Larsen in

November 2015 are sufficiently close in time to his termination

to establish a causal connection. The record, however, reflects

none of the individuals who were involved in the decision to

terminate Plaintiff’s employment were aware of Plaintiff’s

November 2015 report to Larsen. See Chughtai Dep. at 44-46;

Knight Dep. at 41. The Ninth Circuit has made clear that in

order to support a causal connection between protected activity

and an adverse employment action, the plaintiff must establish

the decision-maker was aware of the protected activity. See,

e.g., Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d

1185, 1197-98 (9th Cir. 2003)(“In order to prevail, [the

plaintiff] must present evidence from which a reasonable trier of

fact could conclude that the school principals who refused to

49 - OPINION AND ORDER

hire her were aware that she had engaged in protected

activity.”); Stephens v. Nike, 611 F. App’x 896, 897 (9th Cir.

2015)(“The district court properly granted summary judgment on

the federal retaliation claims . . . because [the plaintiff]

failed to raise a genuine dispute of material fact as to whether

the relevant decision maker was aware of his protected

activity.”); Christian v. Umpqua Bank, No. 3:16-CV-01938-BR, 2018

WL 2326604, at *8 (D. Or. May 22, 2018)(“Evidence that a

decision-maker is aware of an employee's protected activity is

required to support a claim of retaliation.”).

The Court, therefore, concludes on this record that

Plaintiff has not established a genuine dispute of material fact

exists as to the causal connection between either his August 2015

or his November 2015 discrimination complaints and his February

2016 termination.

C. Legitimate, Nondiscriminatory Reason and Pretext

Even if either the six months between Plaintiff’s

August 2015 discrimination complaint and his termination is close

enough in time to constitute a causal connection between his

complaints and his termination and even if Plaintiff could

establish the relevant decision-makers were aware of his November

2015 complaint to Larsen, the Court has already concluded

Defendant has provided legitimate, nondiscriminatory reasons for

Plaintiff’s termination: i.e., his bomb comments and his poor

50 - OPINION AND ORDER

performance.

Plaintiff relies on the same facts and evidence to

support his Second Claim for retaliation that he relied on to

support his First Claim for race discrimination. For the same

reasons that the Court concluded these facts and evidence do not

support a finding that Defendant’s reasons for terminating

Plaintiff were pretextual as asserted in Plaintiff’s

discrimination claim, the Court concludes they do not support a

finding of pretext in Plaintiff’s retaliation claim.

In summary, the Court concludes Plaintiff has not

established a causal connection between any of his discrimination

complaints and his termination nor has Plaintiff established

Defendant’s legitimate, nondiscriminatory reasons for terminating

Plaintiff’s employment were pretextual.

Accordingly, the Court grants Defendant’s Motion for Summary

Judgment as to Plaintiff’s Second Claim for retaliation.

CONCLUSION

For these reasons, the Court GRANTS Defendant’s Motion (#51)

for Summary Judgment and DISMISSES this matter with prejudice.

IT IS SO ORDERED.

DATED this 5th day of August, 2019.

/s/ Anna J. Brown

___________

ANNA J. BROWN

United States Senior District Judge

51 - OPINION AND ORDER