# Higuera v. City of Portland

> District Court, D. Oregon · May 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10391972

## Case

- **Court:** District Court, D. Oregon
- **Decided:** May 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10391972

## How later opinions describe it (automated extraction)

- noting that Title VII “was not intended to diminish traditional management prerogatives.” (quotation marks omitted)
- finding comment that if there are two equally qualified candidates the department should hire the diverse candidate is not direct evidence of discrimination because the comment “requires an inference because the statement did not refer to this employment decision”
- noting that “statements reflecting a desire to improve diversity do not equate to direct evidence of unlawful discrimination”
- discussing whether comments that a candidate “did not fit in” or “fit in better” raise an inference of discriminatory motive in the context of pretext
- noting that “at summary judgment a district court may consider hearsay evidence submitted in an inadmissible form, so long as the underlying evidence could be provided in an admissible form at trial, such as by live testimony”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

FRANK HIGUERA, Case No. 3:18-cv-1083-SI

Plaintiff, OPINION AND ORDER

v.

CITY OF PORTLAND, a municipal
corporation, and EILEEN ARGENTINA, an
individual,

Defendants.

Judy Danielle Snyder and Holly Lloyd, LAW OFFICES OF JUDY SNYDER, 1000 SW Broadway,
Suite 2400, Portland, OR 97205. Of Attorneys for Plaintiff.

Anne Milligan and Michael J. Jeter, Deputy City Attorneys, PORTLAND CITY ATTORNEY’S
OFFICE, 1221 SW 4th Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendants.

Michael H. Simon, District Judge.

Plaintiff Frank Higuera (“Higuera”) filed a lawsuit in state court against Defendants City
of Portland (“City”) and Eileen Argentina (collectively, “Defendants”). Plaintiff asserts claims
under Oregon Revised Statutes (“ORS”) § 659A.030(1)(a) and 42 U.S.C. §§ 1981 and 1983,
alleging that Defendants discriminated against and refused to hire Plaintiff because of his color;
specifically, that he is too pale. Defendants timely removed this case to federal court. Defendants
now move for summary judgment against all of Plaintiff’s claims. For the reasons discussed
below, Defendants’ motion is granted.
STANDARDS
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,
255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
BACKGROUND
Plaintiff is a resident of Oregon. His stepfather, who adopted Plaintiff, is Hispanic.
Plaintiff alleged in his original complaint that he was a “light skinned Hispanic male.” After
counsel for Defendants raised concerns with Plaintiff’s counsel that this allegation was not true,
Plaintiff amended his complaint. Plaintiff’s Amended Complaint alleges that he “identifies as a
Hispanic male.”
Beginning in 2011, the City hired Plaintiff as a seasonal maintenance worker with the
City’s Parks and Recreation Department, working from March through October of each year. On
February 12, 2018, Plaintiff began working full time for the City in a Utility I position. He was
hired for that position in January 2018. His duties in both the seasonal maintenance worker and
Utility I positions are essentially the same. He maintained City parks by cleaning restrooms,
emptying trash containers, picking up debris, and performing landscaping maintenance.
Plaintiff’s allegations involve his difficulty getting hired in other positions, particularly positions

involving working with at risk youth.
Since 2014, Plaintiff has applied for numerous positions in the City’s Parks & Recreation
Department. Defendant Eileen Argentina is the Parks & Recreation Services Manager and has
ultimate authority over hiring decisions in the department. Plaintiff complains about Defendants’
failure to hire him in several positions.
A. Recreation Coordinator I – At Risk Youth
The first position for which the City’s hiring decisions are challenged by Plaintiff is
Recreation Coordinator I – At Risk Youth Outreach, examination plan number 2015-00454.
Plaintiff applied for this position in October 2015. He was interviewed for this position on
February 1, 2016. Plaintiff contends that the position was converted to two vacancies, which

were filled by two African American males in February 2016. In July 2016, a new recruitment
was issued from this examination plan number for another Recreation Coordinator I – At Risk
Youth Outreach position. On August 22, 2016, the City hired Yvette Mata for that position.
Ms. Mata’s application materials indicate that she is a heritage speaker of Spanish, reads
and writes Spanish, has a Bachelor of Arts degree in English and Mexican American Studies,
and has a Master of Arts degree in Education Leadership and Policy Studies. ECF 60-6 at 3. Her
listed experience includes that she was the Director of Community Outreach and Teens at
YMCA Dallas Metro in Dallas, Texas from 2013-14 and was a Student Development Specialist
at the University of Texas at San Antonio and Alamo Colleges from 2001-12. Id. Ms. Mata is
Latina.
By comparison, Plaintiff’s only listed relevant experience was volunteer work. For
example, Plaintiff listed: (1) volunteering at a nonprofit family housing shelter for 18 years;
(2) running an Easter Egg hunt for 13 years; (3) working as an advisor for a high school

LaCrosse team for four years; serving as an advisor at a high school Latino club for four years;
and several other high school volunteering and coaching positions. ECF 33-12. Plaintiff did not
list any dates for his volunteer experiences, leaving hiring personnel to guess at how recent or
remote in time they occurred. His volunteer experiences mainly were at Rex Putnam High
School and Milwaukie High School. Plaintiff also had professional work experience at both of
those high schools. His resume shows that he last worked at Rex Putnam High School in 2008
and Milwaukie High School in 2001. Plaintiff did not list any post-secondary school education.
Plaintiff also challenges the filling of a position at the Mt. Scott Community Center.
Jeff Milkes, a zone manager, approached Plaintiff about a temporary Recreation Coordinator I

position at this location. Mr. Milkes then introduced Plaintiff to Craig Vanderbout, a supervisor
at the Mt. Scott Community Center. Plaintiff, Mr. Milkes, and Mr. Vanderbout talked over
coffee. It was not a job interview, but an introductory meeting. ECF 39 at 3 (Milkes Decl. ¶ 11).
Plaintiff remembers this meeting as taking place in March 2016. ECF 51 at 6-7 (Plf’s Decl. ¶ 19).
Mr. Vanderbout did not recall when this meeting took place, but assumed that it must have
occurred in 2012, the only time that the Mt. Scott Community Center had a vacancy for a teen
Recreation Coordinator position. That vacancy was filled by Ms. Madalyn Bach, a white female.
Mr. Milkes, however, stated that this meeting took place in 2016. ECF 52 at 2 (Milkes Decl. ¶ 2).
Karen Birt, a recreation supervisor with the City, recalls that Ms. Bach was hired in 2011, 2012,
or 2013, before Ms. Birt became the formal supervisor for the Mt. Scott team, but while she was
a recreation supervisor for the City. ECF 48-5 at 8 (Birt Dep. 49:10-21).
Ms. Birt also testified that there was a vacancy at Mt. Scott in 2016, but the position was
filled by the transfer of Ryan Fitzpatrick, an existing Recreation Coordinator, into a permanent
position, and that there was no temporary hire. Id. (Birt Dep. 48:4-49:9); see also ECF 35 at 4

(Birt Decl. ¶ 14). Mr. Milkes also testified that Ms. Argentina told him that an existing
permanent recreation coordinator would be laterally moved into the Mt. Scott vacancy in 2016.
ECF 39 at 3 (Milkes Decl. ¶ 14); see also ECF 52 at 2 (Milkes Decl. ¶ 5) (testifying that in 2016
Ms. Argentina explained “that the Mt. Scott position would be used to transfer an existing Teen
Coordinator”). Mr. Fitzpatrick is a white male. ECF 35 at 4 (Birt Decl. ¶ 14).
B. Recreation Leader – Teen
Plaintiff applied for a Recreation Leader – Teen position from examination plan
number 2017-00225 on April 30, 2017. The application process for this position was
anonymized. ECF 35 at 3 (Birt Decl. ¶¶ 6-9); see also ECF 33-8 at 3. Ms. Birt, the hiring
manager of this position, had a panel review and rate the candidate’s responses from the

questions. She anonymized the process by redacting the candidates’ names. The review panel
scored the anonymous responses without knowing the names of any of the candidates. Those
with the highest scores were invited to interview. Plaintiff was not among the top scorers and
was not invited to interview.
The City hired Michella Apodaca-Johnson for this position on September 19, 2017.
Ms. Apodaca-Johnson’s application materials showed that she started a non-profit, Selfie
Sessions, and worked there for one year. In that role she advocated for self love, self awareness,
and self confidence in teen women. She partnered that nonprofit organization with Boys and
Girls Club of America. She also created a workshop for teen women. Additionally, she had six
years’ experience working as a preschool teacher. She had post-secondary education at Shoreline
Community College focused on Early Childhood Education and Creative Writing and
Journalism. ECF 34-2 at 4. Plaintiff listed the same volunteer and coaching experience that he
listed in his application for the Recreation Coordinator I – At Risk Youth position.
C. Recreation Coordinator I – Teen Service Outreach Specialty

Plaintiff applied for the position of Recreation Coordinator I – Teen Service Outreach
Specialty from examination number 2017-00733 in December 2017. He was not interviewed for
any position from this examination number.
The City hired Harold Ridge on May 31, 2018 and Andre Channel on June 11, 2018 from
this examination number. Mr. Ridge’s application materials show that he had worked from 1990-
94 as a Recreation Leader – Camp Coordinator at Mt. Scott Community Center and from 1994-
2017 as a Recreation Coordinator I – Generalist at Mt. Scott, University Park, and Matt Dishman
Community Centers. ECF 60-9 at 4-6. He also worked from August 2017 to the date of his
application in the position of Recreation Coordinator I – Teen Services at East Portland
Community Center. He won the 2015 Directors Teamwork Award for Summer Teen Services

Program. Mr. Ridge also had a degree in Early Childhood Education from Mt. Hood Community
College. Mr. Ridge is African American and black.
Mr. Channel’s application materials show that from 2004 to the date of his application,
Mr. Channel worked in student support services and as a career coach at Rosemary Anderson
High School. ECF 60-8. He worked from 2015 to the date of his application as a STRYVE
(Striving to Reduce Youth Violence Everywhere) Site Supervisor, responsible for the
recruitment, hiring, and training of community youth participating in the SummerWorks
employment experience. He worked from 2004-2008 as a Youth Business Coordinator, helping
youth become certified as baristas and working to develop partnerships with Starbucks, A.J.
Java, New Seasons Market, and Bridgetown Coffee, to help promote employment opportunities
for program participants. Mr. Channel is African American and black.
At the time of his application, Plaintiff listed the same volunteer and coaching experience
that he previously listed. His relevant volunteer experience, however, was even more remote in
time.

D. “Get a Tan” Comment
Plaintiff states that in the summer of 2016, he was telling Betsy Redfearn, a South Zone
Supervisor, about Plaintiff’s difficulties getting hired for a permanent recreation job with the
City. ECF 51 at 7 (Plf Decl. ¶ 7). Plaintiff testified that Ms. Redfearn told Plaintiff to “get a tan.”
Id. Ms. Redfearn has no recollection of making such a statement to Plaintiff, nor does she believe
such a statement is something that sounds like anything that she would say, because of its
phrasing. ECF 40 at 2 (Redfearn Decl. ¶¶ 4-6).
E. “Wrong Color” Comment
Plaintiff asserts that Mr. Milkes told Plaintiff in March 2017, after Mr. Milkes was no
longer employed by the City, that he was unable to hire Plaintiff in a Recreation Coordinator I
position in 2016 because Ms. Argentina told Mr. Milkes that Plaintiff was “the wrong color.”

ECF 51 at 8 (Plf’s Decl. ¶ 25); 33-1 at 59 (Plf’s Dep. 122:10-25). Eileen Argentina testified that
she did not make that statement. ECF 33-2 at 10 (Argentina Dep. 92:19-22). Mr. Milkes testified
that Ms. Argentina stated that Plaintiff was not “the right fit.” ECF 39 at 3 (Milkes Decl. ¶ 15).
Mr. Milkes further testified that in that same conversation, Ms. Argentina explained that she
wanted to hire a person of color for another vacancy in another location, and that an existing
permanent employee would then be transferred to the vacant Mt. Scott position. Id. (Milkes Decl.
¶ 14). Mr. Milkes also testified that while at the City he felt “intense pressure” to hire people of
color and not to make employment decisions based on merit. ECF 52 at 3 (Milkes Decl. ¶ 6-7).
DISCUSSION
Defendants assert that only a few instances of failure to hire occurred within the
applicable statute of limitations. Defendants argue that Plaintiff fails to meet his burden of
making a prima facie case of disparate treatment based on color discrimination for those alleged
instances. Defendants also argue that even if Plaintiff could make a prima facie case, Defendants

had legitimate, non-discriminatory reasons not to hire Plaintiff and Plaintiff fails to show pretext.
Plaintiff raises numerous evidentiary objections to evidence submitted by Defendants, and
Defendants also raise several evidentiary objections. Plaintiff also argues that he presents enough
evidence to meet his low bar to make a prima facie case and that he raises genuine issues of
material fact sufficient to defeat summary judgment regarding pretext.
A. Evidentiary Objections
1. Defendants’ Objections
Defendants object to what Plaintiff says Mr. Milkes said Ms. Argentina purportedly told
Mr. Milkes. Defendants also object to Mr. Milkes’ declaration stating what Ms. Argentina and
other City employees purportedly told Mr. Milkes. Defendants argue that Plaintiffs’ statements
and Mr. Milkes’ statements are hearsay and are not statements by a party opponent because

Mr. Milkes is no longer employed by the City. Mr. Milkes, however, is giving direct testimony
in his declaration. The hearsay portion is when he relays what he heard from others, such as Ms.
Argentina. Thus, the relevant question for the hearsay exception is whether the speaker of the
hearsay portion (e.g., Ms. Argentina) was still employed by the City at the time of the purported
statement, not whether Mr. Milkes was still employed by the City. Statements by City employees
such as Ms. Argentina are not considered hearsay because they are statements by an opposing
party about matters within the scope of their employment. Fed. R. Evid. 801(d)(2). Thus, when
Mr. Milkes testifies about what an opposing party told him, it is not hearsay.
Plaintiff testifying about what Mr. Milkes told Plaintiff about what a City employee told
Mr. Milkes, however, is different. Plaintiff’s states that Mr. Milkes told Plaintiff in March 2017
that Ms. Argentina told Mr. Milkes that Plaintiff was the “wrong color.” Defendants argue this
statement is inadmissible hearsay. Under Rule 805 of the Federal Rules of Evidence, hearsay
within hearsay is not excluded if each part of the combined statement satisfies an exception to

the rule. Fed. R. Evid. 805. The first part of the statement, the purported statement by Ms.
Argentina to Mr. Milkes, is not hearsay because it is a statement of an opposing party. See Fed.
R. Evid. 801(d)(2). The second part of the statement, the purported statement by Mr. Milkes to
Plaintiff, is not a statement by a party opponent because Mr. Milkes was no longer employed by
the City when he purportedly made the statement to Plaintiff. Plaintiff does not argue that any
other hearsay exception applies to that statement.
In considering a motion for summary judgment, evidence does not need to be presented
in an admissible form, so long as it reasonably can be inferred that the evidence could be
presented in admissible form at trial. JL Beverage Co., LLC v. Jim Beam Brands Co., 828

F.3d 1098, 1110 (9th Cir. 2016) (noting that “at summary judgment a district court may consider
hearsay evidence submitted in an inadmissible form, so long as the underlying evidence could be
provided in an admissible form at trial, such as by live testimony”). Thus, if it appears that
Mr. Milkes would testify at trial that Ms. Argentina made that statement to him and that
Mr. Milkes told Plaintiff as much, the Court could accept this hearsay evidence at summary
judgment. Mr. Milkes, however, submitted a declaration that does not support Plaintiff’s hearsay
account. Mr. Milkes’ declaration states that Ms. Argentina told Mr. Milkes that hiring Plaintiff
was not “the right fit,” instead of saying that Plaintiff was the “wrong color.” Thus, there is no
evidentiary support that the underlying hearsay, Mr. Milkes’ purported statement to Plaintiff,
could be provided in admissible form at trial. Accordingly, Plaintiff’s testimony that Mr. Milkes
told Plaintiff that Ms. Argentina said Plaintiff was the “wrong color” is excluded as inadmissible
hearsay.
2. Plaintiff’s Objections
Plaintiff raises numerous objections to evidence submitted by Defendants. The Court

specifically rules on certain objections to materials expressly considered by the Court in
evaluating the pending motion. The remaining objections are denied as moot. The Court only
considers relevant, admissible evidence in evaluating Defendants’ motion.
Plaintiff objects to the application materials of the candidates hired in the positions to
which Plaintiff applied as inadmissible hearsay. These materials, however, are not submitted for
their truth. The applicants may have included inaccurate information in their application
materials without the City’s knowledge. These materials are submitted only for their effect on
the City. The records are the information about the job applicants that was before the City when
it was making its hiring decisions. City employees reviewed the application materials of all
applicants when deciding whom to hire, because that was the available information. This

information is offered to the Court not to attest to the truthfulness of what the applicants listed,
but only so that the Court can consider the information the City had before it when it compared
the listed qualifications and made hiring decisions based on the information provided by the
applicants. The accuracy of the information listed on the application materials is not the relevant
point. Instead, the relevant issue is whether it appears that the City made hiring decisions based
on purported qualifications and other factors, versus improper discriminatory factors. Plaintiff’s
objection here is overruled.
Plaintiff also objects as inadmissible hearsay to the September 29, 2017, report of
Jeanne Kawamoto, which was originally attached to the Declaration of Anne Milligan and a
second copy was attached to the Declaration of Jeanne Kawamoto. This objection is overruled
under Rule 803(8)(A)(iii) of the Federal Rules Evidence, which excepts from hearsay public
records containing “factual findings in a legally authorized investigation.”
Plaintiff further objects to paragraphs two through nine of the Declaration of Anne
Milligan as not based on personal knowledge and containing hearsay. These paragraphs are

based on personal knowledge—they are conversations had by Ms. Milligan. Regarding hearsay,
the substance of the conversations are not being asserted for the truth of the contents, but for
their effect on the listener, Ms. Milligan, and to explain her state of mind when she contacted
counsel for Plaintiff and expressed concern regarding the factual allegation made in the
complaint that Plaintiff was a light skinned Hispanic male. Ms. Milligan noted her concern arose
under Oregon Rule of Civil Procedure 17C, Certifications to the Court. Ms. Milligan did not
know with certainty the truth of the conversations she had with others. Her conversation with
Plaintiff’s counsel raising this concern, however, resulted in Plaintiff filing an amended
complaint in this action. Plaintiff amended his allegation from one that he is a light skinned

Hispanic male to that he identifies as a Hispanic male. Ms. Milligan’s declaration simply
explains the background, or context, of this amendment. Plaintiff’s objection is overruled.
B. Claims on the Merits
Plaintiff does not clearly state the basis for his discrimination claim other than to say it is
the “color of his skin.” His claims have evolved over the course of the litigation in this case. He
originally stated that he was a light-skinned Hispanic and appeared to be alleging discrimination
based on “color,” asserting that City gave hiring preference to darker-skinned Hispanics and
African-Americans. After Plaintiff amended his complaint to state only that he identifies as
Hispanic, he appears to be alleging “reverse discrimination”—that he is white and the City
improperly gives preference to diverse candidates, primarily people of color. Although his
Amended Complaint does not use the terms “white” or “reverse discrimination,” his brief in
opposition to Defendants’ motion discusses the validity of claims based on “white skin color,”
without explicitly agreeing to Defendants’ assumption that Plaintiff is bringing claims based on
his white skin color, or specifically asserting that Plaintiff’s claims are based on his white skin
color. Plaintiff, however, offers no other argument or basis for his discrimination claim based on

color other than his white skin color.
Plaintiff alleges that the City discriminated against Plaintiff because of his (white) color
by “refusing to hire Plaintiff because of the color of his skin” or because he was the “wrong
color.” ECF 1-1 at 19, 20, 22 (Am. Compl. ¶¶ 20, 29, 41). Plaintiff argues that the City’s conduct
violated Or. Rev. Stat. (“ORS”) § 659A.030, 42 U.S.C. § 1981, and the Equal Protection Clause
of the Fourteenth Amendment, brought as a claim under 42 U.S.C. § 1983.
1. Legal Standards
a. Section 1981 Claim
Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed
by white citizens.” Although § 1981 does not itself use the word “race,” the Supreme Court has

construed the section to forbid all racial discrimination in the making of public as well as private
contracts. Runyon v. McCray, 427 U.S. 160, 168 (1976). In addition this Court previously held
that “§ 1981 protects individuals from discrimination on the basis of skin color.” Higuera v. City
of Portland, 2018 WL 3676820, at *5 (D. Or. Aug. 2, 2018).
A disparate treatment claim is “a claim that an employer intentionally treated a
complainant less favorably than employees with the ‘complainant’s qualifications’ but outside
the complainant’s protected class.” Young v. United Parcel Serv., Inc., 575 U.S. 206, 212 (2015).
“[A] plaintiff can prove disparate treatment either (1) by direct evidence that a workplace policy,
practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-
shifting framework set forth in McDonnell Douglas.”1 Id. These considerations apply in § 1981
claims. See Weil v. Citizens Telecom Servs. Co., 922 F.3d 993, 1002 (9th Cir. 2019).
Under the McDonnell Douglas framework, the plaintiff has the burden of establishing a
prima facie case. Id. To establish a prima facie case of discriminatory failure to hire, a plaintiff

must demonstrate that: (1) he belongs to a protected class; (2) he applied and was qualified for a
job for which the employer was seeking applicants; (3) despite his qualifications he was rejected;
and (4) after his rejection the position remained open and the employer continued to seek
applicants with the plaintiff’s qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). The amount of evidence necessary to establish a prima facie case is “minimal.”
Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000). After a
plaintiff shows a prima facie case of discrimination, the burden shifts to the employer to present
evidence of a legitimate, non-discriminatory reason for the adverse action. Weil, 922 F.3d
at 1002. If the employer successfully carries this burden, then the plaintiff must produce

evidence that the non-discriminatory reason given by the employer was merely pretext for
discrimination. Id.
“[A plaintiff] may defeat summary judgment by offering direct or circumstantial
evidence ‘that a discriminatory reason more likely motivated the employer,’ or ‘that the
employer’s proffered explanation is unworthy of credence because it is internally inconsistent or
otherwise not believable.’” Anthoine v. N. Cent. Ctys. Consortium, 605 F.3d 740, 753 (9th
Cir. 2010) (quoting Chuang, 225 F.3d at 1157). If a plaintiff relies on circumstantial evidence,
however, “that evidence must be specific and substantial to defeat the employer’s motion for

1 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
summary judgment.” Id. (quoting EEOC v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir. 2009)).
Additionally, “[a] plaintiff may not defeat a defendant’s motion for summary judgment merely
by denying the credibility of the defendant’s proffered reason for the challenged employment
action.” Id. (alteration in original) (quoting Cornwell v. Electra Cent. Credit Union, 439
F.3d 1018, 1028 n.6 (9th Cir. 2006).

b. Section 1983 Claim
In considering a § 1983 claim of “employment discrimination under the Equal Protection
Clause of the Fourteenth Amendment,” courts are “not bound by the ‘formal Title VII disparate
treatment burden shifting framework’” but it may be “appropriate to apply the McDonnell
Douglas burden-shifting framework to [such a] claim.” Anthoine, 605 F.3d at 753 (quoting
Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 754 (9th Cir. 2001)). The parties
apply the same tests (direct evidence and the McDonnell-Douglas framework) in their briefing
on Plaintiff’s § 1983 claim and the Court agrees that is appropriate in this case.
c. ORS § 659A.030 Claim
Section 659A.030 provides that it is an unlawful employment action for an employer,
because of a person’s race, color, or national origin, among other things, to refuse to hire or bar

or discharge the individual from employment. ORS § 659A.030(1)(a). Claims brought under this
statute are analyzed under the same framework as claims brought under Title VII, including
application of the McDonnell Douglas burden shifting. See Dawson v. Entek Int’l, 630 F.3d 928,
934 (9th Cir. 2011); Henderson v. Jantzen, Inc., 79 Or. App. 654, 657 (1986).
2. Statute of Limitations
Federal claims brought under 42 U.S.C. §§ 1981 and 1983 borrow the statute of
limitations from the state law statute of limitations for personal injury claims. See Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 369, 371 (2004) (§ 1981); Wilson v. Garcia, 471 U.S. 261
(1985) (§ 1983). Oregon’s personal injury statute of limitations is two years. ORS § 12.110(1).
Plaintiff filed his original complaint on March 23, 2018. Accordingly, he may assert federal
claims only for hiring decisions by Defendants on or after March 23, 2016.
The job positions resulting in hiring decisions challenged by Plaintiff that fall within the
statute of limitations are: (a) Recreation Coordinator I – At Risk Youth, the application process

was July 2016 and Yvette Mata was hired on August 22, 2016; (b) Recreation Leader – Teen, the
application process began April 2017 and Michella Apodaca-Johnson was hired on
September 19, 2017; and (c) Recreation Coordinator I – Teen Service Outreach, the application
process began in December 2017 and Harold Ridge was hired on May 31, 2018 and Andre
Channel was hired on June 11, 2018. Plaintiff argues, however, that the “temporary” Recreation
Coordinator position at Mt. Scott Community Center falls within the statute of limitations, and if
it does not, the statute of limitations should be tolled by the discovery rule.
Neither party provided specific evidence relating to the “recruitment” or “hiring” for the
Mt. Scott position. Plaintiff remembers having the introductory meeting with Mr. Milkes and

Mr. Vanderbout “a month or so” after Plaintiff’s February 1, 2016, interview for a different
position. This places the meeting around early to mid-March 2016, which would be within the
statute of limitations. Mr. Vanderbout does not remember when he met with Plaintiff and
Mr. Milkes relating to Mt. Scott. Mr. Milkes remembered it was sometime in 2016. The evidence
of when Ryan Fitzpatrick transferred to Mt. Scott is within Defendants’ records, but Defendants
did not provide this evidence. Viewing the evidence in the light most favorable to Plaintiff, the
Court finds that the decisions regarding this challenged job placement are within the statute of
limitations for Plaintiff’s federal claims.
For Plaintiff’s state law claims, the Oregon Tort Claims Act requires that a plaintiff give
notice within 180 days after the alleged injury. ORS § 30.275(2)(b). Accordingly, Plaintiff may
only assert his state law claim for alleged conduct occurring within 180 days of his submission of
his tort claim notice. Plaintiff submitted his tort claim notice on September 14, 2017. Therefore,
only alleged unlawful hiring decisions on or after March 18, 2017, are actionable under

Plaintiff’s state law claim. This leaves only the hiring decisions relating to the positions of
Recreation Leader – Teen and Recreation Coordinator I – Teen Service Outreach. Partial
summary judgment is granted on Plaintiff’s state law claim with respect to all other alleged
unlawful actions by Defendants.
3. Direct Evidence of Discrimination
“Direct evidence is evidence which, if believed, proves the fact [of discriminatory
animus] without inference or presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221
(9th Cir. 1998), as amended (Aug. 11, 1998) (alteration in original) (quoting Davis v. Chevron,
U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994)). “[S]tray remarks not directly tied to the
decisionmaking process are not direct evidence capable of defeating summary judgment.”

France v. Johnson, 795 F.3d 1170, 1173 (9th Cir. 2015); see also McGinest v. GTE Serv.
Corp., 360 F.3d 1103, 1138 (9th Cir. 2004) (O’Scannlain, J., concurring in part and dissenting in
part) (“Ninth Circuit cases involving discriminatory failure to promote have always involved
evidence of discrimination among decisionmakers. Indeed, in the absence of additional evidence,
‘statements by nondecisionmakers, nor statements by decisionmakers unrelated to the decisional
process itself, [cannot alone] suffice to satisfy the plaintiff’s burden in this regard.’” (emphasis
and alteration in original) (citation omitted) (quoting Price Waterhouse v. Hopkins, 490
U.S. 228, 277 (1989) (O’Connor, J., concurring))).
Viewed in the light most favorable to Plaintiff, the evidence shows that Ms. Argentina
told Mr. Milkes that Plaintiff was not the “right fit” for a temporary position at Mt. Scott and that
she wanted to hire a person of color for a different position, not a position for which Plaintiff
applied. Plaintiff argues that this is direct evidence of discrimination. Regarding the position
Ms. Argentina purportedly wanted to fill with a person of color, that statement is not direct

evidence about Plaintiff because it requires an inference to relate to any employment decision
involving Plaintiff. See Johnson v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 502 F.
App’x 523, 535 (6th Cir. 2012) (finding comment that if there are two equally qualified
candidates the department should hire the diverse candidate is not direct evidence of
discrimination because the comment “requires an inference because the statement did not refer to
this employment decision”).
Further, Plaintiff provided no evidence about this position. Plaintiff did not provide
evidence about the candidates for the position, their color, their qualifications, the successful
candidate, or the successful candidate’s color and qualifications. The only evidence is the

conclusory statement by Mr. Milkes that Ms. Argentina told him she wanted to hire a person of
color. Having a stated goal of diversity, however, is not by itself evidence of discrimination. See
id. (noting that “statements reflecting a desire to improve diversity do not equate to direct
evidence of unlawful discrimination”). Absent evidence of hiring a person of color whose
qualifications were clearly inferior to other white candidates, a general statement that
Ms. Argentina wanted to hire a person of color by itself is not evidence of discrimination.
Additionally, Plaintiff was focused on a position at Mt. Scott, and the only vacancy at that time
in that location was filled by an existing white male employee who transferred to Mt. Scott,
resulting in Plaintiff not being able to take a temporary position there that Mr. Milkes hoped
could be created. That is not direct evidence of discrimination against Plaintiff because he is
white.
Regarding Ms. Argentina’s statement that Plaintiff was not the right fit for a temporary
position at Mt. Scott, that also is not direct evidence of discrimination. It requires an inference. A
trier of fact would have to infer that by commenting that placing Plaintiff in a temporary position

was not the “right fit,” Ms. Argentina was really referring to Plaintiff’s color. See, e.g., Abrams
v. Dep’t of Pub. Safety, 764 F.3d 244, 252-54 (2d Cir. 2014) (discussing whether comments that
a candidate “did not fit in” or “fit in better” raise an inference of discriminatory motive in the
context of pretext). This type of analysis, therefore, belongs in step three of the McDonnell
Douglas framework.
Plaintiff also argues that Ms. Redfearn’s statement that Plaintiff “get a tan” is evidence of
discrimination. Although this statement is disputed, at summary judgment the evidence is viewed
in the light most favorable to Plaintiff. First, this statement also is not direct evidence because it
requires a factfinder to make an inference. Second, Ms. Redfearn was not involved in any of the

hiring decisions disputed by Plaintiff. Nor does Plaintiff contend, or provide evidence, that
Ms. Redfearn influenced any decisionmakers in a “cat’s paw” theory of liability.2 Thus, because
this remark was not part of the decision-making process, it is not direct evidence of
discrimination. France 795 F.3d at 1173; McGinest, 360 F.3d at 1138.
Plaintiff further argues that the fact that the Recreation Leaders supervised by Ms. Birt
are persons of color is direct evidence of discrimination. Plaintiff cites no authority for this

2 In employment discrimination cases, “‘cat’s paw’ refers to a situation in which a biased
subordinate, who lacks decision-making power, uses the formal decisionmaker as a dupe in a
deliberate scheme to trigger a discriminatory employment action.” Qamhiyah v. Iowa State Univ.
of Sci. & Tech., 566 F.3d 733, 742 (8th Cir. 2009) (quoting EEOC v. BCI Coca-Cola Bottling
Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006)).
proposition. The Court concludes that only evidence similar to evidence that would show pretext
would suffice in this context as direct evidence of discrimination—evidence showing that
Plaintiff’s qualifications were “clearly superior” to the qualifications of the applicants selected
by Ms. Birt. See Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th
Cir. 2003). Plaintiff provides no such evidence here. The mere fact that Ms. Birt hired some

persons of color is not direct evidence of discrimination. In conclusion, Plaintiff has not provided
direct evidence of discrimination sufficient to survive Defendants’ motion for summary
judgment.
4. Plaintiff’s Prima Facie Case
Defendants raise various arguments as to why Plaintiff has not met his burden of making
a prima facie case for the various positions for which Plaintiff has challenged Defendants’ hiring
decisions. Defendants first argue that Plaintiff fails to meet his burden of proving a prima facie
case because he was not qualified for the positions. At this stage of the litigation, viewing the
evidence in the light most favorable to Plaintiff and considering that Plaintiff’s burden is
minimal to make a prima facie case, the Court finds that he has shown that he was qualified for

the positions. Although he worked as a maintenance worker, he had relevant volunteer work,
albeit many years before he applied for the jobs at issue. The question of whether he was more or
less qualified than the successful candidates is separate from whether he met minimum
qualifications for the job.
Defendants also argue that Plaintiff has not met his burden of making a prima facie case
for the Recreation Coordinator I – At Risk Youth position filled by Yvette Mata because Plaintiff
was not an applicant for this position. Thus, argue Defendants, Plaintiff fails to show the first
two factors of the prima facie test—that he applied and was rejected for the position. The Court
agrees. Plaintiff applied, was interviewed, and was rejected for the earlier Recreation
Coordinator I – At Risk Youth position that was filled in February 2016 (outside the statute of
limitations). He was not considered for the later position filled in August 2016. Even if Plaintiff
could be considered to have applied and been rejected for this position, he would still fail to
show pretext, as discussed below.
Defendants further argue that Plaintiff has not met his burden to make a prima facie case

regarding the Mt. Scott “temporary” position. The Court agrees. Even viewing the evidence in
the light most favorable to Plaintiff, the record shows that the City did not request applications
for any temporary position at Mt. Scott in 2016, Plaintiff did not submit an application for any
(temporary or permanent) position at Mt. Scott in 2016, the City did not reject Plaintiff’s
application, and the City did not keep the position open and continue to seek applicants with
Plaintiff’s qualifications after rejecting Plaintiff for the position. There simply was no vacancy
for which a recruitment was held. Instead, staff was moved around at that time, and a full-time,
permanent, white male, existing Recreation Coordinator was transferred to Mt. Scott. Thus,
Plaintiff fails to show two of the four factors required for a prima facie case.

5. The City’s Legitimate, Non-Discriminatory Reason
For those positions for which Plaintiff has made a prima facie case, and for the
Recreation Coordinator I – At Risk Youth position that the Court has found Plaintiff did not
make a prima facie case but for which a hiring process was held, the City has shown that it had
legitimate, non-discriminatory reasons for hiring the people it hired. Even viewing the evidence
in the light most favorable to Plaintiff, the record nevertheless shows that each of those
candidates were at least equally qualified as Plaintiff, if not more so. Non-discrimination statutes
do not deprive the employer of “discretion to choose among equally qualified candidates,
provided the decision is not based upon unlawful criteria.” Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 259 (1981) (noting that Title VII “was not intended to diminish
traditional management prerogatives.” (quotation marks omitted)). The burden thus shifts to
Plaintiff to show that Defendants’ reliance on the qualifications of the successful candidates is
mere pretext.
6. Pretext
Plaintiff relies on circumstantial evidence of discrimination. Plaintiff must therefore show

“specific and substantial” evidence of discriminatory intent to withstand summary judgment.
Anthoine, 605 F.3d at 753. Defendants argue that Plaintiff cannot show that the City’s non-
discriminatory reason—the relative qualifications of candidates—was mere pretext for
discrimination. The Ninth Circuit has addressed what is required when weighing relative
qualifications:
Blue argues that his qualifications were so superior to the
selectee’s qualifications that a rational trier of fact could find
discriminatory intent. However, Blue did not present evidence that
his qualifications were superior. Indeed, Blue and the selectee were
scored almost identically twice prior to the interview based on their
qualifications. “The closer the qualifications of the candidates, the
less weight the court should give to perceived differences in
qualifications in deciding whether the proffered explanations were
pretextual.” Odima v. Westin Tucson Hotel Co., 991 F.2d 595, 602
(9th Cir.1993). Thus, the asserted superiority of Blue’s
qualifications does not raise a genuine issue of fact of
pretext. See Schuler v. Chronicle Broadcasting Co., 793 F.2d
1010, 1011 (9th Cir.1986) (subjective personal judgments of
qualifications do not raise genuine issues of material fact).
Blue v. Widnall, 162 F.3d 541, 546 (9th Cir. 1998).
Plaintiff’s arguments are weaker than those of the plaintiff in Blue. Plaintiff’s
qualifications are not superior to the qualifications of the selected candidates did Plaintiff score
higher or even close to the selected candidates during the hiring process. Each position is
discussed in turn.
For the Recreation Coordinator I – At Risk Youth position, the Court has found that
Plaintiff did not make a prima facie case. Even if he had, Ms. Mata has relevant Bachelor of Arts
and Master of Arts Degrees. She also had 13 years of relevant work experience. Plaintiff, on the
other hand, listed no post-secondary education on his application materials. He also had no
relevant professional experience at the time of his application. He had some relevant volunteer

experience, but it appears from his resume that most of that volunteer experience ended eight
years before his application. The record thus shows that Ms. Mata was more qualified than
Plaintiff. Additionally, Plaintiff provides no evidence of Ms. Mata’s color. Plaintiff provides
evidence and argues that Ms. Mata is Latina. Plaintiff, however, has not brought a claim based
on race or ethnicity discrimination. Asserting that Ms. Mata is Latina provides no evidence of
her color. Indeed, Plaintiff originally alleged that he was discriminated against because he was a
light skinned Hispanic. The mere fact that Ms. Mata is Latina is not evidence that her hiring
shows discrimination against Plaintiff based on color.
For the Recreation Leader – Teen position, the initial round of the hiring process where

Plaintiff was eliminated was anonymized, so Plaintiff’s arguments of pretext are without merit.
Additionally, the candidate hired, Ms. Apodaca-Johnson, had six years of teaching experience
and one year working at a nonprofit. She also had a post-secondary education. Further, she
scored higher than did Plaintiff in the hiring process. Plaintiff did not have any relevant work
experience and based on a reasonable reading of his resume his most recent relevant volunteer
experience was nearly nine years old. His resume did not list any post-secondary education. Even
viewing the record in the light most favorable to Plaintiff, these candidates are equally qualified,
which does not defeat summary judgment. Further, Plaintiff has not provided evidence of
Ms. Apodaca-Johnson’s color, so Plaintiff fails to show that the City’s decision to hire
Ms. Apodaca-Johnson instead of Plaintiff could have been a decision based on color. Plaintiff
provides evidence, and argues, that Ms. Apodaca is “multiracial,” but Plaintiff has not asserted a
claim of race discrimination. Merely asserting that Ms. Apodaca is multiracial does not provide
evidence of her color to show that her hiring creates a genuine issue of whether Defendants’
discriminated based on color.

For the Recreation Coordinator I – Teen Service Outreach positions, Mr. Ridge had 28
years of relevant work experience in the City’s Parks & Recreation Department. He also had a
post-secondary education. He was more qualified than Plaintiff. Mr. Channel had 14 years of
relevant work experience, and his immediately previous three years’ work experience was in a
highly relevant position. He also was more qualified than Plaintiff, and even the most generous
reading of the record in favor of Plaintiff would show that Mr. Channel was at least equally
qualified as Plaintiff. Plaintiff cannot defeat summary judgment by comparing qualifications
with these two candidates.
Plaintiff’s argument regarding the “get a tan” comment fails to show pretext for the same

reason it failed to show direct evidence of discrimination. Regarding Ms. Argentina’s comment
that it was not the “right fit” to move Plaintiff into a temporary position at Mt. Scott, although
that statement may be vague, it does not show pretext if it is properly explained. See Franett-
Fergus v. Omak Sch. Dist. 19, 2016 WL 3645181, at *8 (E.D. Wash. June 30, 2016), aff’d, 743
F. App’x 855 (9th Cir. 2018) (“While the phrase ‘better fit,’ without more, can be vague,
Defendants have explained exactly why the successful candidate was a ‘better fit’ for the LAP
position, and Plaintiff has not shown that a reasonable jury would find this explanation
unbelievable.”); accord Craig v. Mnuchin, 278 F. Supp. 3d 42, 57 (D.D.C. 2017) (“Although
Mr. Craig also claims that his detail was the result of racial discrimination, he has not supported
this claim with sufficient evidence to rebut Defendant’s claim that he was detailed to the position
because it represented a ‘better fit.’”). Ms. Argentina explained why she told Mr. Milkes she did
not think a temporary assignment of Plaintiff was right for the Mt. Scott position. Ms. Argentina
explained that the City was moving away from temporary assignments, which created at least the
perception of an advantage for placement in the permanent position and toward permanent

recruitment and placement, whether internal or external. ECF 33-2 at 9-10 (Argentina Dep. 91:6-
92:14). This ensured a “strong candidate pool” so that the City could select “the right person for
the job.” Id. at 10. Indeed, there was no temporary position filled at Mt. Scott. An existing
Recreation Coordinator, a white male, was transferred to Mt. Scott as a permanent employee.
Plaintiff’s claims of pretext are similar to those in Franett-Fergus. As the court explained
in that case:
This Court finds Plaintiff has failed to present a genuine issue of
material fact that Defendants’ articulated reasoning was pretextual.
Plaintiff argued, in her briefing and at oral argument, that (1) the
successful applicant’s ability to teach multiple subjects was
irrelevant as this skill was not listed in the job posting; (2) the
contention that the successful candidate was hired because she was
a “better fit” is vague and pretextual on its face; (3) the job
reference who allegedly said Plaintiff had trouble with authority
declares he would not have said that about Plaintiff; (4) other
negative comments Evans allegedly heard about Plaintiff have not
been put forward with any specificity; (5) two members of the
hiring committee, including Evans, expressed the need to add
“diversity” to the WAVA program; and (6) Plaintiff was more
qualified for the position. This circumstantial evidence of
discrimination, however, is not sufficiently “specific and
substantial” to raise a triable issue of material fact as to whether
Defendants’ proffered reasons are mere pretext for unlawful
discrimination. [E.E.O.C. v.] Boeing Co., 577 F.3d [1044,] 1049
[(9th Cir. 2009)].
Franett-Fergus, 2016 WL 3645181, at *8. Similarly, Plaintiff fails to provide specific and
substantial evidence of discrimination sufficient to raise a triable issue of material fact that
Defendants’ hiring reasons were pretext for unlawful discrimination based on color.
C. Remaining Arguments
Because the Court finds that summary judgment should be granted on Plaintiff’s claims
on the merits, the Court does not reach Defendants’ arguments regarding qualified immunity for
Ms. Argentina, the City’s Monell liability, or punitive damages.
CONCLUSION
Defendants’ motion for summary judgment (ECF 31) is GRANTED.

IT IS SO ORDERED.

DATED this 8th day of May, 2020.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10391972. Public record. Not legal advice.