Tsur v. Intel Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RON TSUR, Case No. 3:21-cv-655-SI

Plaintiff, OPINION AND ORDER

v.

INTEL CORPORATION,

Defendant.

Shanti S. Lewallen and Lee C. Dudley, LEWALLEN LAW LLC, 65 SW Yamhill Street,

Suite 300, Portland, OR 97204; and Andrew J. Horowitz and Bruce C. Fox, OBERMAYER

REBMANN MAXWELL & HIPPEL LLP, 525 William Penn Place, Suite 1710, Pittsburgh, PA 15219.

Of Attorneys for Plaintiff Ron Tsur.

Helen M. McFarland, SEYFARTH SHAW LLP, 999 Third Avenue, Suite 4700, Seattle, WA 98104;

Christopher J. DeGroff and Andrew Scroggins, SEYFARTH SHAW LLP, 233 S. Wacker Drive,

Suite 8000, Chicago, IL 60606; and Raymond C. Baldwin, SEYFARTH SHAW LLP, 975 F Street,

N.W., Washington, DC 20004. Of Attorneys for Defendant Intel Corporation.

Michael H. Simon, District Judge.

Plaintiff Ron Tsur (Tsur) brings this lawsuit against his former employer Defendant Intel

Corporation (Intel). In his Amended Complaint, Tsur alleges that Intel violated federal and state

laws by: (1) discriminating against Tsur because of his age (Claim One); (2) adopting a facially

neutral policy that had a disparate impact on older employees (Claim Two); (3) retaliating

against Tsur for reporting and/or opposing age discrimination (Claim Three); and

(4) discriminating against Tsur because of his Israeli national origin (Claim Four). Intel moves

for summary judgment on all claims. ECF 61. The Court grants in part and denies in part Intel’s

motion for summary judgment. For the reasons given below, Tsur may proceed to trial on his

first, third, and fourth claims. The Court grants summary judgment in favor of Intel against

Tsur’s second claim.

STANDARDS

A. Motion for Summary Judgment

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 nonmoving 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).

B. Cat’s Paw Doctrine

Under the “cat’s paw” theory of liability, the discriminatory animus of a supervisor is

imputed to the employer if the supervisor committed an act with discriminatory intent, intended

for that act to cause an adverse employment action, and that act is a proximate cause of the

ultimate adverse employment action. See Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011) (“We

therefore hold that if a supervisor performs an act motivated by antimilitary animus that is

intended by the supervisor to cause an adverse employment action, and if that act is a proximate

cause of the ultimate employment action, then the employer is liable under [the Uniformed

Services Employment and Reemployment Rights Act].” (emphasis in original) (footnotes

omitted)); Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (considering the contours of

cat’s paw liability and holding that “if a subordinate, in response to a plaintiff’s protected

activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse

employment action, the subordinate’s bias is imputed to the employer if the plaintiff can prove

that the allegedly independent adverse employment decision was not actually independent

because the biased subordinate influenced or was involved in the decision or decisionmaking

process”); see also Qamhiyah v. Iowa State Univ. of Sci. & Tech., 566 F.3d 733, 742 (8th Cir.

2009) (“‘[C]at’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.” (quoting EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450

F.3d 476, 484 (10th Cir. 2006)). In addition, Oregon has applied federal precedent on the cat’s

paw doctrine to its state antidiscrimination and antiretaliation provisions. Ossanna v. Nike, Inc.,

365 Or. 196, 209-10 (2019) (holding that “in Oregon statutory employment discrimination and

retaliation cases, a plaintiff may assert the ‘cat’s paw’ theory” to impute bias from a supervisor

without decisionmaking authority to the ultimate decisionmaker) (citing Poland, 494 F.3d

at 1182-83).

BACKGROUND

Tsur began working with Intel as a consultant starting in 1984. ECF 69 at 123. In 2011,

after about 27 years of contract work with Intel, Tsur joined Intel as a full-time employee. Id. As

a full-time employee, Tsur’s first supervisor at Intel was Bruce Jones (Jones). Tsur states that

during his first one-on-one meeting with Jones, as well as during other meetings later, Jones

made derogatory comments about Tsur’s age and national origin. For example, Tsur contends

that Jones told Tsur: “If you think age is an advantage in this job you are mistaken,” id. at 105

(Tsur Dep. 225:1-6), “You Israelis have too narrow a view of the world,” ECF 81-1 at 14 (Tsur

Dep. 232:6-22), and “[Y]ou Israelis speak too directly with coworkers, that is not a good way to

conduct business at Intel.” Id. at 17 (Tsur Dep. 235:2-16).

Tsur requested several times to be transferred away from Jones, all without success.

ECF 69 at 107 (Tsur Dep. 254:14-21). Tsur then sent a letter on April 11, 2012, to Aicha Evans

(Evans), who was the vice president of the department. ECF 69 at 123-25. Tsur described his

background and experience and noted in his letter that he was 59 years old at the time of Jones’s

comments. Id. Tsur highlighted that Jones had stated that he had “never managed anyone who is

10 years older than me” and told Tsur that he “didn’t match the profile of [Jones’s] team.” Id. at

124. Tsur noted that Jones had given Tsur a “Satisfactory” performance review (also called a

“Focal”) for his work throughout 2011, but in Tsur’s letter to Evans, Tsur took issue with several

of Jones’s qualitative comments about Tsur’s behavior. Id. For example, Jones wrote in the

evaluation that Tsur engaged in “building Silos” and “Tom Sawyerism.” Id. at 125. Tsur

explained to Evans that these comments were “ludicrous” and “bad spirited.” Id.

Jones had also given Tsur a “Stock Share Level” award of 3 (SSL3). ECF 69 at 110-12

(performance review), 116-17 (stock letter and pay letter).1 Intel has a “Restricted Stock Unit”

1 Contemporaneous documents indicate that Tsur received his performance evaluation on

April 9, 2012. See ECF 69 at 124 (letter from Tsur dated April 11, 2012, referring to the

evaluation as having been received “This Monday,” two days earlier). The parties both use the

date of April 9, 2012 when referring to Jones’s evaluation of Tsur’s performance in 2011. Jones

delivered this evaluation to Tsur in April 2012. ECF 64 at 3 (Jones Decl. ¶ 10). Tsur’s stock and

(RSU) policy that awards eligible employees with time-vesting stock options as a form of bonus

compensation. ECF 65 at 4 (Sanchez Decl. ¶ 9). 2 Supervisors can award employees with stock

options on a sliding scale, from “Stock Share Level 1” (SSL1), which offers the most stock

options, to “Stock Share Level 5” (SSL5), which provides no stock options. Id. (Sanchez Decl. ¶

11). These stock options vest five years after issuance. ECF 69 at 160 (Begis Aff. 1).3

Supervisors were encouraged to assign SSL5 awards to five percent of the employees they

supervised. Id. at 156 (Rees Aff. 4).

In a 2012 email, Tsur stated that he expected his letter to Evans would be kept

confidential and hoped that Tsur could resolve his situation with Jones through mediation. Id.

at 127. Tsur’s letter, however, was forwarded to Intel’s Human Resources department and given

to Deanna Thronson (Thronson), who began an investigation into Tsur’s concerns. Id. at 99-100

(Thronson 30(b)(6) Dep. 49:12-50:11); see also ECF 63 at 2 (Thronson Decl. ¶ 3). Thronson first

spoke with Tsur in spring 2012. ECF 63 at 3 (Thronson Decl. ¶ 4).

The parties present differing versions of what was said during Thronson and Tsur’s first

conversation. Thronson states in her declaration that she asked Tsur about his recitation of

Jones’s age-related comments about not managing anyone ten years older than himself and Tsur

pay letters for his 2011 performance, however, are dated March 18, 2012, and indicate that

Tsur’s pay change became effective on April 1, 2012. ECF 69 at 116-17.

2 David Sanchez (Sanchez) is an Intel employee who held various Human Resources-

related positions and based on this work experience, submitted an affidavit describing Intel’s

Code of Conduct, Employment Guidelines, compensation, and other internal policies in support

of Intel’s motion for summary judgment. ECF 65 at 2 (Sanchez Decl. ¶¶ 2-3, 9-11).

3 Glenn Begis (Begis) was a manager at Intel who submitted an affidavit in support of

Tsur’s claims against Intel. Begis was also deposed in this action. According to Begis’s

testimony in deposition, Begis did not work directly with Tsur at Intel. ECF 71-1 at 9-10 (Begis

Dep. 109:4-110:3).

not matching the “profile” of Jones’s “team.” Id. (Thronson Decl. ¶ 5). Thronson contends that

Tsur “did not want to complain about any unfair treatment regarding his age” or “tell [Thronson]

that Mr. Jones made any age-related comments.” Id. (Thronson Decl. ¶ 6). Instead, according to

Thronson, Tsur focused on rebutting what he believed were inaccurate criticisms of about him.

Id. at 4. (Thronson Decl. ¶ 7).

Tsur, however, testified during his deposition that in response to Thronson’s questions,

Tsur confirmed that there was “age discrimination” and that he described Intel’s “perception that

young people create all the innovation,” which affects managers’ evaluations of people by age.

ECF 62-1 at 54-55 (Tsur Dep. 240:21-241:5). This is not necessarily inconsistent with

Thronson’s declaration, because someone can report conduct without wanting to “make a

complaint” about that conduct. According to Tsur, at that time he did not want an investigation

but simply asked to be reassigned away from Jones’s supervision. At this stage of the litigation,

the Court must view all factual disputes, including what was said the first meeting between Tsur

and Thronson, in the light most favorable to Tsur.

Tsur and Thronson spoke several additional times during the next few months. ECF 63 at

3 (Thronson Decl. ¶ 8). After speaking with Tsur, Jones, and others, in July 2012 Thronson

closed her investigation and concluded that Jones did not engage in any improper conduct. Id. at

3 (Thronson Decl. ¶¶ 8-9); ECF 62-3 at 16-22 (Thronson 30(b)(6) Dep. at 55-62, discussing the

closing of her investigation and her meeting on July 13, 2012 with Tsur to convey her findings).

Tsur and Thronson, however, continued to communicate in August and September 2012. ECF 63

at 4 (Thronson Decl. ¶¶ 11-12). Tsur believed he had additional information that would change

the findings of Thronson’s investigation into Jones’s conduct. ECF 62-3 at 21-22

(Thronson 30(b)(6) Dep. 61:25-62:2). Tsur also emailed Thronson on September 25, 2012,

stating that he “fully expect[s] a retaliatory action will be taken against me” by Jones. Id. at 24

(Thronson 30(b)(6) Dep. 64:5-9).

On about September 6, 2012, Jones prepared a mid-year “Below Expectations”

evaluation of Tsur, with an effective date of September 26, 2012. ECF 69 at 133-34, 177. Intel’s

employee services system generated an automatic notice on October 1, 2012, about Tsur’s

change in status to a proficiency of “Below Expectations.” Id. at 133. The record is unclear when

the performance evaluation was delivered to Tsur. On December 6, 2012, Jones emailed others at

Intel indicating that Jones planned to offer Tsur a deal: Tsur could either accept a “voluntary

separation” resignation package from Intel or remain an employee. Id. at 138. To remain an

employee, however, Tsur must (1) receive an “Improvement Required” performance rating and

(2) successfully complete a “Corrective Action Plan” (CAP). Id.

Tsur emailed Thronson several times on December 25, 2012, including an email noting

that Tsur had sent Thronson three other emails with “background information” to prepare for

their telephone conference the next day. Id. at 126-28. One of these emails included a letter that

Tsur says he composed in September. Id. at 127-28. Tsur, Thronson, and Intel Manager Begis

spoke for more than an hour on December 26th. ECF 63 at 4 (Thronson Decl. ¶ 14). During this

conversation, they discussed that if Tsur remained with Intel under the CAP, Tsur would receive

an “Improvement Required” performance rating. Id. Ultimately, Tsur agreed to remain an

employee at Intel and attempt to satisfy the CAP, rather than resign. ECF 63 at 5 (Thronson

Decl. ¶ 16). Jones also gave Tsur an SSL5, along with Tsur’s Improvement Required rating. See

ECF 65 at 6 (Sanchez Decl. ¶ 22). Jones delivered Tsur’s 2013 review and SSL5 award (for the

year 2012) in spring 2013. ECF 64 at 5 (Jones Decl. ¶ 17).

In January 2013, Thronson authorized Tsur’s transfer to a new position at Intel under a

different supervisor. ECF 63 at 5 (Thronson Decl. ¶ 16). Tsur would still remain under the CAP

directed by Jones, but his new supervisor would tailor its requirements and supervise its

completion. Id. Thronson states in her declaration that Tsur never complained of discrimination

or retaliation. Id. (¶¶ 12, 13). The record, however, contains both Tsur’s September 2012 email

to Thronson describing his expected retaliation from Jones, and a different letter from Tsur to

Thronson, dated January 27, 2013, in which Tsur stated that Jones had retaliated against Tsur

because of Thronson’s investigation. ECF 69 at 130.

In April 2014, Tsur’s new supervisor, Steven Nahas (Nahas), gave Tsur a “Successful”

performance review and an SSL4 award for Tsur’s work throughout 2013. Id. at 62 (Nahas

Dep. 38:12-18) (“Successful” review); Id. at 145 (Nahas Aff. 2) (SSL4 award). Nahas stated that

he gave a lower SSL award to higher-salaried employees, including Tsur, as an “equalization

mechanism” for lower-salaried employees, who received higher SSL awards. Id. at 145 (Nahas

Aff. 2). Nahas also explained that because of Jones, Nahas’s department had to take Tsur under a

CAP “that would restore [Tsur’s] performance rating back to ‘successful,’” that Tsur behaved

with “true grace” even though Nahas found the whole process to be a “superfluous wringer,” and

that Nahas thought Jones “came off as an abrasive bully.” Id. at 150 (Nahas Aff. 7). Nahas noted

that after Tsur “very successfully” completed the CAP, his rating was “restored” to “successful”

as “required” by Intel’s human resource policies. Id.

Nahas recommended transferring Tsur to another position under a third supervisor, Roger

Rees (Rees). ECF 69 at 148 (Nahas Aff. 5). In early to mid-2015, Rees gave Tsur a “Successful”

performance review and an SSL5 award for Tsur’s work throughout 2014. Id. at 170

(“Successful” review); id. at 155-56 (Rees Aff. 3-4) (SSL5 award). Rees stated that (1) Intel sets

strict budgets for stock allotments in each group, (2) the guidelines state that stock awards can be

given based on money and considering whether an employee is paid higher relative to their peer

group or for internal equity, (3) he made Tsur’s stock allocation “[f]or purposes of trying to

reach . . . better equity within [the] team,” and 4) had Rees been able “to do what [was] right,

rather than meet an artificial target, Mr. Tsur would have been granted SSL3.” Id. at 156 (Rees.

Aff. 4).

In the first quarter of 2015, Intel decided to lay off a certain number of employees in a

Performance-based Mandatory Buyout (PMB layoff) to compensate for a decrease in Intel’s

revenue. ECF 65 at 5 (Sanchez Decl. ¶¶ 14-15). Tsur received a letter from Intel on June 15,

2015, documenting Tsur’s layoff and explaining that his termination was permanent. ECF 69

at 158-59. This letter stated that Tsur had qualified for Intel’s layoff criteria because (1) Tsur

received an SSL5 that year and (2) a performance review of “Improvement Required” or “Below

Expectations” or an SSL4 or SSL5 in the previous three years. Id. (Tsur’s letter); ECF 65 at 6

(Sanchez Decl. ¶¶ 17, 22).

After the termination of Tsur’s employment, Rees wanted to hire Tsur back as an

contractor for Intel but learned that Tsur could not return to any form of work at Intel based on

the terms of Intel’s reduction in force policies. ECF 69 at 156 (Rees Aff. 4). On November 12,

2015, Tsur emailed Intel to ask whether he could work for Intel as a contractor. ECF 69 at 174. A

representative from Intel responded that Tsur could not do so and that Intel was “not looking at

these [i.e., those affected by the 2015 layoff] on a case by case basis and are applying the policy

uniformly across the board.” Id. (emphasis added). Rees’s affidavit mentions that Tsur filled out

an “Open Door Employee Intake Form,” dated June 17, 2015, to change his SSL5 award

retroactively, and subsequently recorded a telephone conversation with Intel’s Human Resources

department after Tsur’s request was refused. Id. at 178 (Rees Aff. 1). Tsur then filed this lawsuit

against Intel in April 2021. ECF 1.

DISCUSSION

Intel moves for summary judgment against: (1) Tsur’s age discrimination disparate

treatment claims; (2) Tsur’s age discrimination disparate impact claims; (3) Tsur’s claims of

unlawful retaliation for opposing or reporting age discrimination; and (4) Tsur’s national origin

discrimination disparate treatment claims. Tsur asserts each claim under both federal and state

law. As noted in the Court’s Opinion and Order on Intel’s partial motion to dismiss (ECF 22),

the applicable statute of limitations bars Tsur’s discrimination and retaliation claims arising out

of events that occurred before January 12, 2015 (for federal claims) and March 18, 2015 (for

state claims).

Under Local Rule 56-1(b), Intel raises in its reply several objections challenging the

evidence that Tsur submitted in response to Intel’s motion. Tsur filed a sur-reply addressing

these concerns. The Court first addresses these objections and then considers Intel’s motion on

the merits.

A. Evidentiary Objections

Intel objects that much of the evidence that Tsur relies upon in his opposition to Intel’s

motion for summary judgment is unauthenticated, irrelevant, hearsay, not submitted under

penalty of perjury, or inadmissible for other reasons. At summary judgment, however, the Court

may consider “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.” JL Beverage Co. v.

Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016); see also Sandoval v. Cnty. of San

Diego, 985 F.3d 657, 665-66 (9th Cir. 2021) (rejecting relevance, hearsay, and foundation

evidentiary objections at summary judgment and noting that “[i]f the contents of a document can

be presented in a form that would be admissible at trial—for example, through live testimony by

the author of the document—the mere fact that the document itself might be excludable hearsay

provides no basis for refusing to consider it on summary judgment”); cf. Fed. R. Civ. P. 56(c)(2)

(permitting a party to “object that the material cited to support or dispute a fact cannot be

presented in a form that would be admissible in evidence”); 56(c)(4) (establishing that a

declaration in support of summary judgment must present “facts that would be admissible in

evidence”).

In evaluating a nonmoving party’s facts offered at summary judgment, the Court does

“not focus on the admissibility of the evidence’s form. [The Court] instead focus[es] on the

admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see also

Celotex, 477 U.S. at 324 (“We do not mean that the nonmoving party must produce evidence in a

form that would be admissible at trial in order to avoid summary judgment.”); Norse v. City of

Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (“[T]he evidence presented at the summary

judgment stage does not yet need to be in a form that would be admissible at trial[.]”); Block v.

City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) (“To survive summary judgment, a

party does not necessarily have to produce evidence in a form that would be admissible at trial,

as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56.”). For

example, in Fraser the Ninth Circuit considered a diary’s contents as evidence to defeat a motion

for summary judgment, despite a hearsay challenge, because the contents of the diary “could be

admitted into evidence at trial in a variety of ways.” Fraser, 342 F.3d at 1037. The court noted,

for example, that the witness “could testify to all the relevant portions of the diary from her

personal knowledge.” Id. “Because the diary’s contents could be presented in an admissible form

at trial, we may consider the diary’s contents in the [movant’s] summary judgment motion.” Id.

Intel’s argument cites primarily out-of-circuit cases to support its contention that Tsur’s

evidence must be disregarded. The only Ninth Circuit cases cited are Pfingston v. Ronan

Engineering Co., 284 F.3d 999 (9th Cir. 2002), and Orr v. Bank of America, 285 F.3d 764 (9th

Cir. 2002). Pfingston, however, applied the pre-2010 version of Rule 56 and noted that then-

Rule 56(e) (now Rule 56(c)(4)) required affidavits to set forth facts that would be admissible in

evidence and determined that the plaintiff failed to meet that burden. 284 F.3d at 1003-04.

Orr stated that only admissible evidence could be considered at summary judgment. 285

F.3d at 773. Orr, however, was an outlier and inconsistent with many Ninth Circuit cases,

including later cases. As set forth above, many Ninth Circuit cases apply the text of then-

Rule 56(e) and require only that the contents of evidence at summary judgment be able to be

submitted in a form that is admissible at trial. They do not require parties to submit evidence in

an already admissible form to be considered at summary judgment. In any event, the 2010

amendments to Rule 56 codified the Ninth Circuit’s approach in Fraser, Norse, and Block and

supersede the approach in Orr. Thus, Intel’s evidentiary argument on this point is without merit.

Additionally, Tsur filed a sur-reply to address Intel’s specific evidentiary arguments.

ECF 72. Tsur attached three declarations to his sur-reply that cures any authentication deficiency

that his earlier filings may have contained. ECF 73 (Lewallen Decl.); ECF 74 (Tsur Decl.);

ECF 75 (Killingsworth Decl.). The challenged deficiencies also may be cured in Tsur’s expert

report or other evidence at trial. Intel does not argue that Tsur’s evidence cannot be submitted in

an admissible form at trial. Accordingly, Intel’s evidentiary objections are overruled.

B. Age Discrimination

1. Disparate Treatment

Tsur alleges disparate treatment age discrimination under the federal Age Discrimination

in Employment Act of 1967 (ADEA)4 and Oregon’s anti-discrimination law.5 Tsur presents two

theories of disparate treatment: one under the “cat’s paw” doctrine based on Jones’s purported

discriminatory animus and another under Intel’s purported neutral selection criteria for the 2015

reduction in force that Tsur alleges contain an inherent age bias.

“When a plaintiff alleges disparate treatment based on direct evidence in an ADEA claim,

[the Ninth Circuit does] not apply the burden-shifting analysis set forth in McDonnell Douglas

Corporation v. Green. 411 U.S. 792 (1973), in determining whether the evidence is sufficient to

defeat a motion for summary judgment.” Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802,

812 (9th Cir. 2004). Direct evidence is evidence that, “if believed, proves the fact of

discriminatory animus without inference or presumption.” Vasquez v. Cnty. of Los Angeles, 349

F.3d 634, 640 (9th Cir. 2003) (cleaned up). “Racist or sexist [or ageist] statements constitute

such ‘direct evidence’ of discrimination.” Aragon v. Republic Silver State Disposal Inc., 292

F.3d 654, 662 (9th Cir. 2002) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th

Cir. 1998)). A single discriminatory comment by a supervisor or decisionmaker who influenced

an adverse employment decision can be sufficient to preclude summary judgment. Dominguez-

Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1039 (9th Cir. 2005).

Tsur alleges that Jones made ageist comments evidencing discriminatory animus and that

Jones influenced the final decisionmaking that resulted in Tsur’s layoff. Tsur, however,

4 29 U.S.C. § 623(a)(1) and (d).

5 Or. Rev. Stat. (ORS) § 659A.030.

expressly contends that he is not relying on direct evidence but is instead arguing that his

evidence is circumstantial and, thus, that McDonnell Douglas burden shifting applies.

Accordingly, the Court will review Intel’s motion under the three-part McDonnell Douglas

framework.

The McDonnell Douglas framework requires that an employee first establish a prima

facie case of age discrimination. Diaz v. Eagle Produce Ltd., 521 F.3d 1201, 1207 (9th

Cir. 2008). If the employee does so, then “the burden shifts to the employer to articulate a

legitimate, non-discriminatory reason for its adverse employment action.” Id. If the employer

meets that burden, “the employee must then prove that the reason advanced by the employer

constitutes mere pretext for unlawful discrimination.” Id.

To establish a prima facie case of disparate treatment under the ADEA, Tsur must show

that he was

(1) at least forty years old, (2) performing his job satisfactorily,

(3) discharged, and (4) either replaced by substantially younger

employees with equal or inferior qualifications or discharged under

circumstances otherwise “giving rise to an inference of age

discrimination.”

Id. at 1207 (quoting Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000)). “The

requisite degree of proof necessary to establish a prima facie case for Title VII and ADEA claims

on summary judgment is minimal and does not even need to rise to the level of a preponderance

of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994), as amended on

denial of reh’g (July 14, 1994). If a plaintiff meets this burden, it “creates a presumption that the

employer unlawfully discriminated against the employee.” Tex. Dep’t of Cmty. Affs. v.

Burdine, 450 U.S. 248, 254 (1981).

Similarly, Oregon state law makes it unlawful for an employer to “discriminate against

the individual in compensation or in terms, conditions, or privileges of employment,” because of

that individual’s “race, color, religion, sex, sexual orientation, gender identity, national origin,

marital status or age if the individual is 18 years of age or older.” ORS § 659A.030(1)(b). The

McDonnell Douglas burden-shifting framework applies to state age discrimination claims when

they are brought in federal court. See Dawson v. Entek Int’l, 630 F.3d 928, 934-35 (9th

Cir. 2011) (concluding that the McDonnell Douglas burden-shifting framework is federal

procedural law and thus applies to state claims whether the basis of the federal court’s

jurisdiction over state claims is pendent or diversity).

“[T]he plaintiff in an employment discrimination action need produce very little evidence

in order to overcome an employer’s motion for summary judgment. This is because the ultimate

question is one that can only be resolved through a searching inquiry—one that is most

appropriately conducted by a factfinder, upon a full record.” Chuang v. Univ. of Cal. Davis, Bd.

of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000) (quotation marks omitted).

a. Prima facie case

For purposes of its pending motion for summary judgment, Intel does not dispute the first

three elements of Tsur’s prima facie case. Intel does, however, dispute the fourth element, that

Tsur was discharged under circumstances that give rise to an inference of discrimination.

“An inference of discrimination can be established by showing that the employer had a

continuing need for the employees’ skills and services in that their various duties were still being

performed or by showing that others not in their protected class were treated more favorably.”

Diaz, 521 F.3d at 1207-08 (cleaned up). Employees can use circumstantial evidence to “lead

reasonable jurors to draw an inference of age discrimination.” Id. at 1208. Statistical evidence

that a disparity between older and younger workers hired during a certain period, for example,

could give rise to an inference of discrimination if that disparity is “so stark as to suggest bias

rather than pure chance.” See id. at 1209. Additionally, “evidence that a group of younger and

comparably or less-qualified employees assumed the plaintiff’s responsibilities is sufficient.” Id.

at 1211. Finally, courts in the Ninth Circuit “treat the last [fourth] element of the prima facie case

with flexibility.” Id. (quotation marks omitted).

Intel asserts that Tsur improperly relies on Jones’s allegedly offensive age-related

statements made in 2011 and 2012. Intel notes that these purported statements are

uncorroborated, but argues that even if Jones made these statements, they do not give rise to an

inference of age discrimination because they are untimely and were not “tied to” an adverse

action. Intel cites Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918-19 (9th Cir. 1996), and

White v. Bolden, 2017 WL 8793863, at *4 (C.D. Cal. Oct. 18, 2017), to support the latter

argument.

Intel’s arguments are not persuasive in challenging Tsur’s prima facie case for several

reasons. First, Tsur does not need corroboration to present this evidence—his assertion that Jones

made the statements is sufficient at summary judgment. Second, the statements are not untimely

because they are used to show discriminatory motive, which is a proper use for conduct taken

(including statements made) outside the limitations period. See RK Ventures, Inc. v. City of

Seattle, 307 F.3d 1045, 1062 (9th Cir. 2002) (“In assessing whether acts occurring within the

limitations period are unconstitutional, we may look to pre-limitations period events as evidence

of an unconstitutional motive.”).

Tsur argues that Intel’s layoff, which occurred within the limitations period, was based, at

least in part, on the 2013 performance evaluation and SSL5 award given by Jones, and thus his

alleged discriminatory motive for those acts is relevant. Jones’s 2011 and 2012 comments are

relevant to show Jones’s purported discriminatory animus. Additionally, as discussed below,

Tsur contends that Jones’s purported discriminatory motive for Tsur’s evaluations and SSL

awards influenced the SSL4 and SSL5 awards later given by Nahas and Rees, which also

affected Tsur’s eligibility for Intel’s layoff.

Third, Intel relies on two cases’s discussions of pretext, not a plaintiff’s prima facie case.

Nidds, 113 F.3d at 918-19 (concluding that the plaintiff sufficiently demonstrated a prima facie

case but granting summary judgment because the plaintiff’s evidence of pretext was

“ambiguous” and not tied to the plaintiff’s layoff and therefore was “weak” and insufficient);

White, 2017 WL 8793863, at *3-4 (explaining that the plaintiff failed to show pretext by offering

no direct evidence and other evidence that was “so indirect that it has no bearing whatsoever on

his case” and that even though the plaintiff may believe he was treated unfairly due to his age, “a

plaintiff’s subjective belief is wholly insufficient evidence to establish a claim of discrimination

as a matter of law” (quotation marks omitted)). As noted, however, a plaintiff’s evidentiary

burden is different between the prima facie step and the step that requires a showing of pretext,

even through circumstantial evidence.

Unlike the “minimal” burden to show a prima facie case, “[t]o show pretext using

circumstantial evidence, in contrast to direct evidence, a plaintiff must put forward specific and

substantial evidence challenging the credibility of the employer’s motives.” Mayes v. WinCo

Holdings, Inc., 846 F.3d 1274, 1282 (9th Cir. 2017) (quotation marks omitted); see also

Aragon, 292 F.3d at 659 (“The district court’s analysis seems to conflate the minimal inference

needed to establish a prima facie case with the specific, substantial showing Aragon must make

at the third stage of the McDonnell Douglas inquiry to demonstrate that Republic’s reasons for

laying him off were pretextual.”). The Ninth Circuit, however, has “repeatedly held that a single

discriminatory comment by a plaintiff’s supervisor or decisionmaker is sufficient to preclude

summary judgment for the employer.” Dominguez-Curry, 424 F.3d at 1039. “Where . . . the

person who exhibited discriminatory animus influenced or participated in the decisionmaking

process, a reasonable factfinder could conclude that the animus affected the employment

decision.” Id. at 1039-40. Thus, evidence of Jones’s “discriminatory remarks [may be] sufficient

to permit a jury to find that animus affected the ultimate hiring decision, even if [Jones] never

communicated his bias to [the final decisionmaker] and even if [the final decisionmaker] was not

biased.” Id. at 1040.

For Tsur’s first theory of disparate treatment, based on the cat’s paw doctrine, Tsur

argues that Jones’s discriminatory animus influenced Intel’s decision to terminate Tsur’s

employment because Jones’s discriminatory animus caused Tsur to receive a low performance

review and low SSL awards that later triggered Tsur’s eligibility under Intel’s layoff criteria. The

evidence is unclear as to what was the precise basis of Tsur’s eligibility for Intel’s layoff: (a) his

2015 SSL5 award plus his 2013 “Improvement Required” performance evaluation or SSL5 stock

award by Jones; or (b) his 2015 SSL5 award plus his 2014 SSL4 award by Nahas. If it was the

former, then Jones’s alleged discriminatory animus, including Jones’s alleged statements in 2011

and 2012, is directly relevant. Even if it was the latter, however, Tsur still raises a genuine issue

of material fact regarding the influence of Jones’s purported animus on the 2014 and 2015

decisions of Nahas and Rees, as discussed below. Thus, Tsur meets his low burden for showing a

prima facie case of age discrimination under a cat’s paw theory.

Regarding Tsur’s second, and alternative, theory of disparate treatment, that Intel’s

neutral selection criteria were inherently biased against older workers, the Supreme Court has

foreclosed this argument. The Court agrees that Tsur has provided declarations and deposition

testimony raising a genuine issue of material fact whether the SSL4 and SSL5 awards, one of the

criteria used for the layoffs, were skewed to more senior grade employees. The Supreme Court,

however, rejected disparate treatment ADEA claims when the employer acted “on the basis of a

factor, such as an employee’s pension status or seniority, that is empirically correlated with age.”

Hazen Paper Co. v. Biggins, 507 U.S. 604, 608, 613 (1993). In that case, the Supreme Court

explained: “Because age and years of service are analytically distinct, an employer can take

account of one while ignoring the other, and thus it is incorrect to say that a decision based on

years of service is necessarily ‘age based.’” Id. at 611. “This is true even if the motivating factor

is correlated with age, as pension status typically is. Pension plans typically provide that an

employee’s accrued benefits will become nonforfeitable, or ‘vested,’ once the employee

completes a certain number of years of service with the employer.” Id.

The Supreme Court allowed that a claim based on a proxy for age might be appropriate if

an employer “suppose[s] a correlation between the two factors and act[s] accordingly.” Id.

at 613; see also id. at 612-13 (positing that an employer who “targets employees” with a

potential status “on the assumption that these employees are likely to be older thereby engages in

age discrimination”). Tsur, however, has not argued or provided evidence that Intel knew of or

intended any correlation between age and low SSL grant levels or targeted SSL4 and 5 recipients

for termination on the assumption that they were older. Thus, even if the larger stock grants were

skewed toward more junior level employees who could take advantage of the five-year vesting

period, and the smaller stock grants, which were a criterion for the layoffs, tended to skew to

older employees, the neutral stock grant factor is not a legally cognizable proxy for age under

Hazen. To this extent, Intel’s motion is granted on Tsur’s second theory of disparate treatment,

namely that the criteria used by Intel was inherently biased.

Tsur does not contest that Intel has provided a legitimate, nondiscriminatory reason for

discharging Tsur. This reason was that Tsur qualified for Intel’s 2015 cost-cutting reduction in

force. The layoffs applied to employees throughout Intel who had either (1) a 2015 SSL4 or

SSL5 award or low performance evaluation, plus (2) an SSL4 or SSL5 award or a low

performance evaluation in the previous three years. The Court thus turns to consider whether

Tsur has shown a genuine issue regarding pretext under the McDonnell Douglas burden-shifting

framework.

b. Pretext

Tsur may demonstrate pretext “either directly by persuading the court that a

discriminatory reason likely motivated [the employer] or indirectly by showing that [the

employer’s] proffered explanation is unworthy of credence.” Diaz, 521 F.3d at 1212. To show

pretext, Tsur “does not necessarily have to introduce additional, independent evidence of

discrimination.” Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th Cir. 2001).

Intel argues that Tsur has no evidence that Intel’s legitimate, nondiscriminatory business reason

for Tsur’s layoff is pretextual.

Evidence supporting a cat’s paw theory of liability, however, may raise triable issues at

the pretext step of the McDonnell Douglas framework. See Poland, 494 F.3d at 1182-84

(analyzing the cat’s paw theory of liability and pretext); Dominguez-Curry, 424 F.3d at 1039-40

(analyzing pretext and explaining that one method of creating a triable issue on pretext is

evidence of animus through discriminatory comments made by someone who “influenced or

participated in the decisionmaking process”). Circumstantial evidence of pretext must be

“specific and substantial,” but this standard “is tempered by our observation that a plaintiff’s

burden to raise a triable issue of pretext is hardly an onerous one.” France v. Johnson, 795 F.3d

1170, 1175 (9th Cir. 2015) (quotation marks omitted). Further, as previously explained, even a

single discriminatory comment may suffice to create a triable issue if made by the plaintiff’s

supervisor or someone who influenced or participated in the decisionmaking process.

Dominguez-Curry, 424 F.3d at 1039-40. “[T]o create a genuine dispute of material fact on

pretext, a speaker of discriminatory statements need not be the final decisionmaker of an

employment decision.” France, 795 F.3d at 1176 (applying the cat’s paw theory of liability to an

ADEA age discrimination claim).

Intel argues that Tsur cannot show that Jones “influenced or was involved in” Tsur’s

layoff. Poland, 494 F.3d at 1182. Intel asserts that Jones provided no input in the layoff selection

criteria and that those individuals who did have such input were unaware of Tsur’s complaints or

Jones’s evaluations of Tsur’s work performance. Intel also contends that Jones provided no input

into Tsur’s SSL awards given by Nahas and Rees, which by themselves would have qualified

Tsur for layoff under Intel’s criteria. Thus, Intel concludes, Tsur cannot prevail on a cat’s paw

theory of liability.

Tsur, however, does not argue that Jones provided any direct input into Intel’s choice of

layoff criteria or SSL awards by Nahas and Rees. Rather, Tsur asserts that discriminatory animus

motivated Jones to submit poor performance reviews and SSL awards for Tsur, and those, in

turn, influenced the performance evaluations and SSL awards given by Nahas and Rees. Viewing

the evidence in the light most favorable to Tsur and drawing all reasonable inferences in his

favor, the Court finds that Tsur has provided evidence that could persuade a reasonable jury that

Jones held discriminatory animus toward Tsur because of Tsur’s age. For example, Tsur testified

in deposition that Jones told Tsur, “if you think age is an advantage in this job you are mistaken”

and “at your [Tsur’s] age you should be retired[.]” Tsur also testified that people “around

Mr. Jones department [sic] . . . started referring to me as old man, old fart, geezer, and different

type of, I think age-demeaning expressions[.]” Tsur also reported in 2012 that Jones had

commented to Tsur during their first meeting that Jones had never managed someone ten years

older than Jones and that Tsur did not “match the profile” of Jones’s “team.” These statements

are sufficient to create a genuine dispute as to Jones’s discriminatory animus. See Dominguez-

Curry, 424 F.3d at 1039-40.

The next question is whether Jones influenced the layoff decision. Jones gave Tsur an

“Improvement Required” evaluation and a level SSL5 award in 2013. That made Tsur potentially

eligible under one prong of the layoff requirement. Because Intel did not investigate Tsur’s

layoff or provide definitive information as to the specific grounds of his termination, it is

unknown what were the precise grounds of Tsur’s layoff. If Tsur was laid off in part because of

Jones’s 2013 performance review or SSL5 award, then Tsur has provided a triable issue

regarding whether Jones’s purported discriminatory animus caused Tsur’s termination.

But even assuming that Tsur’s eligibility was solely based on his 2014 SSL4 award from

Nahas and his 2015 SSL5 award from Rees, Tsur still provides sufficient evidence to raise a

genuine dispute on pretext based on the argument that Nahas and Rees’s actions were influenced

by Jones’s purported discriminatory animus. The declarations and deposition testimony of

Nahas, Rees, and Begis explain that SSL awards could not stray too far from the level of the

performance evaluations (although the SSL awards were not directly correlated to performance,

there was a connection to the performance evaluation level) and that current evaluations were

influenced by earlier evaluations. This is how Jones’s purported discriminatory evaluation can be

connected to the later SSL awards.

Nahas explained in his affidavit that his department was forced to take Tsur under a CAP

because of Jones, that Tsur completed the CAP “very successfully,” and that Tsur behaved “with

true grace” throughout what Nahas described as a “superfluous wringer.” Nahas also described

Jones “as an abrasive bully.” Nahas testified in his deposition that he could not give Tsur a

higher than “Successful” rating in 2014 because Jones had given Tsur an “Improvement

Required” rating in 2013. According to Nahas, if a manager attempted to give an “Exceeds

Expectations” rating under such circumstances, the manager would be told “you can’t jump

[your report] that far up.” Nahas added that he believed Tsur had been performing at an “exceeds

expectation” level. Nahas also described in his affidavit that the CAP “required” Tsur to be

“restored” to a “successful” rating, implying that because of the CAP imposed by Jones, Nahas

did not have a choice to rate Tsur any higher than “Successful,” which, in turn, affected Tsur’s

SSL award.

Nahas also explained in his affidavit that he did not give Tsur the SSL4 award based on

poor performance and stated that “it would be atrocious to consider the given SSL4 stock grant

as any kind of negative performance indicator[.]” During his deposition, Nahas reviewed the

performance criteria of an SSL4 award and explained that Tsur’s performance throughout 2013

did not meet that definition. Nahas testified that Tsur’s performance “for sure” warranted a

higher award of SSL3. Nahas further explained that his SSL4 award to Tsur was linked to the

“Successful” evaluation and that the SSL awards and performance evaluations “meld[]” together.

Begis also testified at his deposition that the computer program in which a manager inputs the

evaluations and the SSL awards had “encoded intelligence” and would “flag” if the performance

rating and the stock share were “inconsistent”

In his affidavit, Rees similarly explained that Intel’s guidance on SSLs provides that an

SSL5 can be awarded solely based on monetary considerations, such as because an employee is

paid high relative to his or her peer group or for purposes of internal equity. Rees confirmed that

he informed Tsur that he was getting the SSL5 to reach better equity within the employment

group. Rees also explained that SSL budgets are strict within each department and that he

believed Intel required its supervisors to award five percent of the awards for the employees

under their supervision at the level of SSL5. Rees stated that “had he been able to do what is

right, rather than meet an artificial target, Mr. Tsur would have been granted SSL3.”

Rees also testified at deposition that supervisors were “guided by management” and that

prior performance evaluations of the last three years affect current performance evaluations

because employees were not to “ping-pong from low to high then low to high, year after year.”

In addition, Rees testified that Tsur met the performance standard of an SSL3 award and not of

the lower SSL5 award. Rees confirmed that if he could have, he would have given Tsur an award

at the level of SSL3.

From this evidence, a reasonable jury could conclude that Jones’s purported

discriminatory animus and resulting low performance evaluations and SSL awards given by

Jones to Tsur detrimentally influenced Nahas and Rees’s later performance evaluations and SSL

awards for Tsur. There is specific and substantial evidence that Nahas and Rees felt constrained

by Jones’s 2013 “Improvement Required” rating and award at the SSL5 level to provide Tsur

with lower performance evaluations and associated SSL awards than they might otherwise have

given to Tsur. These subsequent performance evaluations and SSL awards that Nahas and Rees

gave to Tsur may be relevant to how Tsur met Intel’s layoff criteria.

For these reasons, Tsur may proceed to trial on his federal and state claims of disparate

treatment age discrimination.

2. Disparate Impact

a. Legal Standards

i. ADEA

The ADEA “makes it unlawful for an employer to hire or discharge any individual or

otherwise discriminate against any individual with respect to compensation, terms, conditions, or

privileges of employment, because of the individual’s age.” 29 U.S.C. § 623(a)(1). To establish a

prima facie case of disparate impact age discrimination in violation of the ADEA, a plaintiff

must show “(1) the occurrence of certain outwardly neutral employment practices, and (2) a

significantly adverse or disproportionate impact on persons of a particular age produced by the

employer’s facially neutral acts or practices.” Pottenger v. Potlatch Corp., 329 F.3d 740, 749

(9th Cir. 2003). “A disparate impact claim must challenge a specific business practice.” Id.

(emphasis added). For example, the Ninth Circuit has found that a reduction in force may

constitute a specific employment practice. Id.

Under the ADEA, employers may assert as an affirmative defense that the

“differentiation [at issue] is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1);

see also Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 91 (2008). “A reasonable factor

other than age is a non-age factor that is objectively reasonable when viewed from the position of

a prudent employer mindful of its responsibilities under the ADEA under like circumstances.” 29

C.F.R. § 1625.7(e)(1).

ii. Oregon State Law6

The Oregon Court of Appeals has set forth two elements that a plaintiff must satisfy to

show employment discrimination claim based on disparate impact: “(1) membership in a class

protected by the employment statutes, and (2) that the employer’s facially neutral employment

rule ‘has the effect of screening out members of a protected class at a significantly higher rate

6 The Oregon Supreme Court has not yet decided whether an age discrimination disparate

impact claim is available under ORS § 659A.030. See, e.g., Doyle v. City of Medford, 256 Or.

App. 625, 645-47, 647 n.14, rev’d in part on other grounds, 356 Or. 336 (2014) (so noting). The

parties, however, do not dispute the availability of such a claim. Thus, the Court assumes without

deciding that Tsur may allege a disparate impact claim under Oregon law as well as under

federal law.

than the others.’” Tanner v. Or. Health Sciences Univ., 157 Or. App. 502, 516 (1998) (quoting

Spurgeon v. Stayton Canning Co., 92 Or. App. 566, 570-71 (1988)). The Ninth Circuit has

described ORS § 659A.030(1)(a) as “Oregon’s parallel age discrimination statute” when

analyzing alleged violations of the ADEA and state law. Enlow, 389 F.3d at 810. It is well-

established that ORS § 659A generally mirrors the federal statutory regime under Title VII and

that federal law provides guidance for interpreting Oregon’s antidiscrimination law. See

Ossanna, 365 Or. at 204-05 (stating that Oregon courts “look[] to Title VII precedent for

guidance in analyzing claims brought under analogous provisions of ORS chapter 659A”);

Portland State Univ. Chapter of Am. Ass’n of Univ. Professors v. Portland State Univ., 352

Or. 697, 711 (2012) (stating that ORS Chapter 659A parallels Title VII); Henderson v. Jantzen,

Inc., 79 Or. App. 654, 657 (1986) (adopting the prima facie elements of disparate treatment

under Title VII for Oregon Revised Statutes Chapter 659 actions (now renumbered as Chapter

659A)). Thus, decisions in the District of Oregon have analyzed together disparate impact age

discrimination claims under the ADEA and ORS § 659A.030. See, e.g., Pena v. Hous. & Cmty.

Serv. Agency of Lane Cnty., 2010 WL 3419520, at *10 (D. Or. Aug. 30, 2010); Adams v. Home

Depot USA, Inc., 2007 WL 4565163, at *14-15 (D. Or. Dec. 19, 2007).

b. Application

Intel argues that summary judgment on Tsur’s disparate impact claim should be granted

for two alternative reasons. First, Intel contends that Tsur fails to establish a prima facie case of

disparate impact because he does not identify a specific employment practice that caused a

disparity between older and younger employees.7 Second, Intel asserts that it has shown that the

PMB layoff relied on reasonable factors other than age.

7 In its motion for summary judgment, Intel also asserts in conclusory terms that Tsur

fails to show a causal relationship between any challenged practice and any adverse impact.

i. Specific Employment Practice

Intel argues that Tsur does not identify a “specific employment practice,” which is

required for a disparate impact claim under the ADEA. Smith v. City of Jackson, 544 U.S. 228,

241 (2005). To support this argument, Intel cites the following from Tsur’s deposition:

Q Okay. Well, so you said that you believed Intel designed

the PMB criteria to discriminate against older workers?

A I’m not sure that will be my language. . . . The indications

here were that if it stands out that there’s correlation between age

and probability of being laid off in a significant way that any

actions that the company could have taken to alleviate that have

not been exercised.

Q And how do you know what the company did?

A I don’t know. I’m looking at the results.

ECF 62-1 at 42-43 (Tsur Dep. 188:10-189:4). Intel argues that Tsur’s inability to identify a

particular practice causing a disparate impact on Intel’s employees, alongside his apparent

reliance on statistical correlation alone, are fatal deficiencies in his disparate impact claim.

Intel is correct that a plaintiff’s reliance on a statistical disparity alone, without pointing

to a defendant’s conduct or policy causing that disparity, is fatal to a disparate impact claim. See

Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656-57 (1989), superseded by statute on other

grounds, 42 U.S.C. § 2000e-2(k)8 (“As a general matter, a plaintiff must demonstrate that it is

the application of a specific or particular employment practice that has created the disparate

Intel, however, does not develop or support this argument. The Court therefore does not address

it.

8 The Civil Rights Act of 1991 abrogated Wards Cove Packing Co. as to Title VII claims,

but the Supreme Court still applies its burden-shifting standard to other antidiscrimination

statutes. See S.W. Fair Hous. Council, Inc. v. Maricopa Domestic Water Improvement Dist., 17

F.4th 950, 960 n.5 (9th Cir. 2021).

impact under attack.”); see also Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project,

Inc., 576 U.S. 519, 542-43 (2015) (same, citing Wards Cove Packing Co.). Tsur, however, does

identify a specific employment practice that purportedly caused the disparate impact at issue.

The Ninth Circuit has concluded that a reduction in force can be a specific employment

practice that supports a disparate impact claim. See Pottenger, 329 F.3d at 749. In his response to

Intel’s motion, Tsur argues that the 2015 reduction in force created a disparate impact by using a

methodology that adversely affected older workers. Tsur cites his statistical evidence plus the

affidavits and deposition testimony of Nahas, Rees, and Begis, which tend to show that the SSL

awards were not performance-based and were directed more to junior grade employees. Tsur

points specifically to the inclusion of SSL awards in Intel’s 2015 layoff criteria as an

employment practice with a disparate impact on older, versus younger, employees. Thus, Tsur

does not rely solely on statistical disparity, unlike the plaintiffs in Wards Cove Packing Company

and Texas Department of Housing.

Intel argues that Tsur’s deposition testimony, quoted above, constitutes a factual

admission that contradicts the basis for his disparate impact claim. Intel’s argument is not

persuasive. Unlike the deponents in the sources cited in Intel’s briefing on this point, Tsur is not

trying to “claw back” a factual admission in his deposition testimony by submitting an after-the-

fact affidavit to the contrary. See, e.g., Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266-67

(9th Cir. 1991). Further, even in Kennedy, the Ninth Circuit held that “the district court must

make a factual determination that the contradiction was actually a ‘sham.’” Id. at 267.

The Court does not read Tsur’s response at deposition about whether he believed Intel

intentionally designed discriminatory criteria for the 2015 layoff—itself not a requirement for a

disparate impact claim9—as a factual admission that contradicts facts provided before his

deposition. The affidavits of Intel’s managers were provided before Tsur’s deposition, and Tsur

previously articulated his disparate impact theory during the litigation of Tsur’s motion to

dismiss.10 Nor does the fact that Tsur could not articulate the precise legal basis of his disparate

impact claim at the time of his deposition, taken before many of the other depositions and other

discovery provided in this case, render his current legal argument a sham. The Court also does

not find any clear contradiction between Tsur’s testimony at deposition and his articulation of his

claim. Indeed, Tsur explained that he was still reviewing the basis of his claim. Intel could have

propounded follow-up interrogatories or other discovery requests if Intel desired a more

definitive description of the basis of Tsur’s legal claim on this issue.

Finally, Intel argues that Tsur cannot point to any uneven distribution of Intel’s SSL

awards as an employment practice because Intel provided detailed guidance to its managers as to

how they should distribute these awards. This argument is unpersuasive for two reasons. First, it

does not rebut that Tsur identifies a specific employment practice of Intel’s that Tsur argues

caused unlawful disparity. Rather, Intel’s argument goes to the persuasiveness of Tsur’s claim,

not whether he meets his prima facie burden. Second, the fact that Intel provided guidance to its

9 See Stout v. Potter, 276 F.3d 1118, 1121 (9th Cir. 2002) (“The rationale, intent or

motive underlying a challenged employment practice plays no part in a prima facie case of

disparate impact.”); Coleman, 232 F.3d at 1291 (“Under the disparate impact theory [of the

ADEA], employees must prove that a facially neutral employment practice had a discriminatory

impact on older workers. They need not prove motive or intent . . . ” (emphasis added)).

10 During the oral argument on Intel’s motion to dismiss, Tsur, through his counsel,

“clarified that his disparate impact claim is based on Intel’s methods for selecting employees for

the 2015 layoff, which includes its reliance on the RSU policy.” ECF 22 at 18 (Opinion and

Order on Mot. to Dismiss). The Court reiterated that Tsur’s claims for disparate impact “based

on the June 2015 layoff” under federal and state law and based on the “RSU stock policy” for

state law both survived Intel’s motion to dismiss. Id. at 18-19.

managers as to the distribution of SSL awards does not prevent Tsur from presenting a genuine

dispute of material fact as to whether it was the general practice or implicit policy to ignore this

guidance, which Tsur argues and provides evidence to support.

ii. Reasonable Factors Other Than Age

Intel also argues that Tsur’s claim of disparate impact fails because Intel has shown that

the 2015 layoff was based on “reasonable factors other than age.”11 Intel asserts that its layoff

criteria—employee performance reviews and SSL awards—were assessments of an employee’s

performance by his or her supervisor. Intel argues that performance indicators unrelated to an

employee’s age are reasonable criteria for selecting employees to lay off, and thus Intel’s

affirmative defense defeats Tsur’s disparate impact claim of age discrimination. Intel also

contends that the Supreme Court’s decision in Hazen forecloses Tsur’s argument that the SSL

awards were a proxy for age.

The Court agrees that Intel’s employee performance-based criteria can provide a

reasonable factor other than age for an employer’s layoff criteria. The question, however, is

whether there is a genuine dispute of material fact about whether Intel’s layoff selection criteria

11 At oral argument, Tsur asserted for the first time that Intel did not properly allege this

affirmative defense. The Court requested supplemental briefing by Intel on this issue. The Court

is satisfied by Intel’s response, ECF 84, that it complied with the pleading standards and

provided sufficient notice of its affirmative defense. Further, even if it had not, “in the absence of

a showing of prejudice an affirmative defense may be raised for the first time at summary

judgment.” Garcia v. Salvation Army, 918 F.3d 997, 1008 (9th Cir. 2019) (cleaned up). Intel’s

response describes the parties’ communications regarding this affirmative defense during

discovery and shows that there is no prejudice to Tsur in the Court evaluating the defense on the

merits. Further, “[t]here is no prejudice to a plaintiff where an affirmative defense would have

been dispositive if asserted when the action was filed.” Id. (quotation marks omitted). Thus, the

Court accepts the pleading of this affirmative defense and considers the merits of Intel’s

argument.

in fact rested on employee performance, as Intel asserts. The Court finds that there is such a

factual dispute.

In their affidavits, the former Intel managers Nahas, Rees, and Begis describe that the

SSL award program: (a) had a strict budget that supervisors had to follow; (b) was “an employee

retaining device”; (c) had rules designed to “reward lower level employees” at lower salary

levels; (d) was intended to increase compensation equity in employee groups; (e) could be based

solely on monetary considerations and not performance; and (f) was intended to retain

employees through the five-year vesting time frame of the stock awards. The awards, for

example, have no value to an employee who will be retiring within five years, before the awards

could vest. Given the strict budget constraints on Intel’s stock awards, managers were

incentivized to give the awards to younger employees for whom they had the most value. In his

deposition testimony, Rees testified that the budget guidelines required that higher grade

employees (level 7 and above) receive different stock allocations than lower grade employees

(level 2-6) and that higher grade employees are “typically” older. Begis similarly explained that

the SSL program is designed for retention purposes and that an employee had to “stick around”

for the stock award’s vesting period to get the benefit from the award. Further, Nahas testified

that lower grade employees (level 2-6) were “absolutely” younger than higher grade employees

(level 7 and above) and that was the case throughout the entirety of Nahas’s employment at Intel.

In addition, Intel’s internal guidelines for equity compensation through SSL awards state

that “[s]tock is granted to attract, retain, and motivate the employees necessary to enhance Intel’s

longer-term growth and profitability.” Tsur submitted an affidavit by Begis in which he stated

that Intel’s SSL award system is inherently discriminatory against older employees because an

“SSL’s value in retaining older employees was diminished or eliminated relative to younger

employees. This was well understood by employees and their managers.” A reasonable juror

could conclude that because time-vested stock grants are more valuable to younger employees

who can stay with Intel longer than older employees, this focus on retention incentivized

managers to award stock grants to younger employees.

Also, two of Tsur’s former managers testified at deposition and submitted affidavits in

which they stated that their SSL awards to Tsur were unrelated to his work performance. Nahas

and Rees both repeatedly testified that Tsur performed at a level above the SSL awards they each

gave Tsur, that they would have given him a higher SSL award if they could have, and that his

SSL award should not be considered a negative performance indicator.

Viewing the facts in the light most favorable to Tsur, as the Court must at this stage of

the lawsuit, Tsur has provided enough evidence suggesting that managers at Intel distributed SSL

awards with employee retention and equity in mind, rather than solely to reward performance.

Tsur also has provided enough evidence to show that more junior level and lower compensated

employees tended to receive the larger stock awards and that these employees at Intel were more

likely to be younger.

This, however, does not resolve the issue of whether the facially neutral factor of SSL

awards “was not a ‘factor other than age’ but rather an impermissible ‘proxy for age.’” Harris v.

Cnty. of Orange, 902 F.3d 1061, 1073 (9th Cir. 2018). Intel relies on the Supreme Court’s

decision in Hazen, a disparate treatment case, to argue that using the SSL awards was not an

impermissible proxy for age. The Court, however, finds the Supreme Court’s decision in Smith

to be more analogous.

In Smith, the Supreme Court concluded that “the disparate impact is attributable to the

City’s decision to give raises based on seniority and position. Reliance on seniority and rank is

unquestionably reasonable given the City’s goal of raising employees’ salaries to match those in

surrounding communities.” 544 U.S. at 242. The Supreme Court did not reject outright the claim

because it was based on seniority, which supports the conclusion that Hazen does not

automatically bar disparate impact claims when the purported “reasonable factor other than age”

is grade or seniority. Instead, a court should conduct a “reasonableness” analysis.

Even viewing the facts in the light most favorable to Tsur, the Court finds that Intel’s

reliance on performance evaluations and SSL awards as layoff criteria was reasonable as a matter

of law. The SSL awards may have had equity and retention as part of their purpose when

awarded, rather than simply performance, but an employee retention policy that skews toward

one age group can be reasonable. See Smith, 544 U.S. at 242 (concluding that providing raises

only to more junior employees to match neighboring law enforcement agencies to retain those

employees was “unquestionably” reasonable). When it comes to the layoff itself, even if using

the SSL awards resulted in some disparity for older employees because the focus of those awards

on retention skewed younger, Tsur has failed to present evidence that Intel used the SSL factor

as a “proxy” for age, as opposed to a different reasonable factor, considering the Supreme

Court’s guidance in Smith and Hazen. Cf. Doyle v. City of Medford, 2011 WL 4894077, at *4 (D.

Or. Oct. 13, 2011), aff’d 512 F. App’x 680 (9th Cir. 2013) (rejecting disparate impact claim

based on company purchasing health insurance for active employees but not retirees because it

was done for the reasonable factor other than age of saving money, even though excluding

retirees necessarily affects older people more). “While there may have been other reasonable

ways for [Intel] to achieve its goals, the one selected was not unreasonable. Unlike the business

necessity test [applicable in Title VII discrimination cases,] which asks whether there are other

ways for the employer to achieve its goals that do not result in a disparate impact on a protected

class, the reasonableness inquiry includes no such requirement.” Smith, 544 U.S. at 243.

For these reasons, the Court grants summary judgment against Tsur’s federal and state

claims of disparate impact age discrimination.

C. Retaliation

Tsur alleges retaliation for reporting or opposing age discrimination in violation of the

ADEA and two different Oregon statutes. The first Oregon statute, ORS § 659A.030(1)(f),

prohibits employers from retaliating against employees who oppose or report discrimination. The

second Oregon statute, ORS § 659A.199, makes it unlawful for employers to retaliate against

whistleblowing employees.

1. ADEA & Oregon Discrimination Law

a. Legal Standards

The ADEA includes an antiretaliation provision that makes it “unlawful for an employer

to discriminate against any of [its] employees . . . because such individual . . . has opposed any

practice made unlawful by [§ 623 of the ADEA] or because such individual, member or

applicant for membership has made a charge, testified, assisted, or participated in any manner in

an investigation, proceeding, or litigation under this chapter.” 29 U.S.C. § 623(d); see also

Stilwell v. City of Williams, 831 F.3d 1234, 1240 (9th Cir. 2016). To state a claim for retaliation

under the ADEA, a plaintiff must show that (1) he engaged in a protected activity, (2) he

suffered an adverse employment action, and (3) his protected activity was the but-for cause of

the adverse employment action. See Stilwell, 831 F.3d at 1246-47 (discussing how “the ADEA

retaliation provision [is] the equivalent of the anti-retaliation provision of Title VII” and that

under recent Supreme Court caselaw the protected activity must be the but-for cause of the

adverse employment action); see also Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064

(9th Cir. 2002) (stating the elements of a Title VII anti-retaliation claim); Gross v. FBL Fin.

Servs., Inc., 557 U.S. 167, 177 (2009) (establishing but-for causation for ADEA discrimination

claims).

Regarding the first element, Title VII’s anti-retaliation provision and parallel provisions

in other statutes, such as the ADEA, protect an employee’s opposition to or reporting of unlawful

discrimination. “Depending on the circumstances, reports of improper workplace behavior can

be protected activity under Title VII.” EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 962 (9th

Cir. 2009). Filing a complaint with the Equal Employment Opportunity Commission is

considered a protected activity for Title VII’s anti-retaliation provision. Ray v. Henderson, 217

F.3d 1234, 1240 n.3 (9th Cir. 2000). “Making an informal complaint to a supervisor is also a

protected activity.” Id.

Tsur also brings a state law age retaliation claim under Oregon’s employment

discrimination and retaliation statute, ORS § 659A.030(1)(f). “The elements of a prima facie

case under ORS § 659A.030(1)(f) are substantially similar” to those for retaliation under

Title VII. Meyer, 292 Or. App. at 678 (citing Portland State Univ., 352 Or. at 711 (“[F]ederal

precedent interpreting the antidiscrimination provisions of Title VII can provide useful additional

context to aid our analysis of the meaning of ORS § 659A.030(1)(f).”)); see also Portland State

Univ., 352 Or. at 712 (“Title VII also contains an antiretaliation provision that is analogous to

ORS § 659A.030(1)(f).”). Further, the “relevant provision of the ADEA [is] substantially similar

to the antiretaliation prohibition contained in ORS § 659A.030(1)(f) and Title VII.” Id. at 715

n.12. Accordingly, courts analyze together antiretaliation claims under the ADEA and ORS

§ 659A.030(1)(f).

b. Application

Intel argues that the Court should grant summary judgment on Tsur’s retaliation claims

because Tsur did not engage in any protected activity for which Intel could have retaliated. Intel

also asserts that, even if Tsur did engage in protected activity, Tsur cannot establish the requisite

causal link between this activity and his layoff. Tsur responds that the protected activity for

which Intel retaliated was his April 11, 2012 letter to Evans and later discussions with Thronson

from Human Resources. As to causality, Tsur asserts that his reports to Evans and Thronson

caused Jones to submit the mid-year “Below Expectations” evaluation. To prove the necessary

link, Tsur relies on: (1) the timing of his evaluation, which appears from the record to be close in

time to when Thronson spoke with Jones about the investigation; (2) the fact that the evaluation

was given outside the normal timing for mid-year evaluations, which Tsur contends were

typically given in July; and (3) Jones’s failure to give Tsur a written warning before issuing the

evaluation, which Tsur asserts was normal practice when giving a “Below Expectations”

evaluation. Tsur then relies on his cat’s paw theory of causation.

The key question for whether Tsur engaged in protected activity is whether his letter of

April 11, 2012 and his discussions with Thronson, alone or in combination, constitute reports or

complaints of discrimination. Regarding the letter of April 11, 2012, Tsur reported that Jones

stated that he had never managed a person ten years older than himself and that Tsur did not

match the profile of Jones’s “team” of employees. Although Thronson states in her declaration

that Tsur never complained about age discrimination, Thronson admits that she asked Tsur about

those comments by Jones, and Tsur testified during his deposition that he told Thronson, “yes,

there is age discrimination.” Tsur also testified that during that conversation, it “caught

[Thronson’s] attention” when Tsur discussed Intel’s “perception that young people create all the

innovation and that jades people’s evaluation of people by age.” This is sufficient to create a

genuine dispute of material fact whether Tsur engaged in protected conduct.

Regarding causation, Tsur has presented sufficient evidence to defeat summary judgment.

The court first reviews whether there is evidence to show a retaliatory motive on the part of

Jones for his alleged conduct. Conduct outside the statute of limitations is relevant for purposes

of discerning whether Jones had a retaliatory motive. RK Ventures, 307 F.3d at 1062.

Considering the temporal proximity between when Jones learned about the protected activity and

prepared the “Below Expectations” performance evaluation of Tsur on or before September 6,

2012, is sufficient, even by itself, to show retaliatory motive. Although not precisely clear from

the record, it appears that Thronson discussed the investigation with Jones “several months” after

April 2012, most likely in or around July 2012, and that by September 6, 2012, Jones had a draft

of the evaluation prepared. Courts often consider temporal proximity of several months or less

enough to support an inference of retaliation on its own. See Van Asdale v. Int’l Game Tech., 577

F.3d 989, 1003 (9th Cir. 2009) (two-and-one-half months); Alpha Energy Savers, Inc. v. Hansen,

381 F.3d 917, 929 (9th Cir. 2004) (three months); Thomas v. City of Beaverton, 379 F.3d 802,

812 (9th Cir. 2004) (seven weeks); Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003)

(three, five, and eight months, respectively, all sufficient to support an inference of retaliation);

Miller v. Fairchild Indus., 885 F.2d 498, 505 (9th Cir. 1989) (42 days). The additional

evidence—that Jones did not provide notice of the evaluation and gave the evaluation outside the

normal mid-year evaluation season—further bolsters Tsur’s claimed retaliatory motive for his

conduct.

After accepting Jones’s retaliatory motive for his “Below Expectations” performance

evaluation, his requirement that Tsur be placed on a CAP, receive an “Improvement Required”

performance evaluation, and receive an SSL5 award followed within three months. The Court

finds an issue of fact on whether those were also based on retaliatory animus, particularly given

Tsur’s ongoing reporting of problems with Jones to Thronson during this time period. Although

these all occurred outside the statute of limitations, because, as discussed above, Jones’s alleged

retaliatory animus is alleged to have influenced the adverse employment actions that occurred

within the statute of limitations, his alleged retaliatory motive is relevant. For the same reasons

the Court found an issue of fact on causation for discrimination under the cat’s paw theory, the

Court finds an issue of fact on causation for retaliation under this theory. See Acosta v.

Brain, 910 F.3d 502, 514 (9th Cir. 2018) (affirming denial of summary judgment on retaliation

based on the cat’s paw theory for causation because the alleged wrongdoer “set in motion a

proceeding by an independent decisionmaker that led to an adverse employment action” (cleaned

up)).

For these reasons, Tsur may proceed to trial on his claims of retaliation under 29 U.S.C.

§ 623(d) and ORS § 659A.030(1)(f).

2. Oregon Whistleblower Retaliation

To prove whistleblower retaliation under ORS § 659A.199,12 Tsur must show that Intel

discharged, demoted, suspended, or otherwise discriminated or retaliated against Tsur “with

regard to promotion, compensation or other terms, conditions or privileges of employment”

because Tsur “in good faith reported information that [he] believes is evidence of a violation of a

state or federal law, rule or regulation.” ORS § 659A.199(1); see also Hall v. State, 274 Or.

App. 445, 453 (2015) (analyzing the statute’s “subjective, good faith” standard). “To prove a

12 Both parties blend Tsur’s retaliation claims under ORS §§ 659A.030(1)(f)

(employment discrimination retaliation) and 659A.199 (whistleblower retaliation), despite the

different standards for these statutory claims. The Court analyzes them separately.

violation [of ORS § 659A.199], a plaintiff must establish a causal link between her complaints

about the violation of a law, rule, or regulation, on the one hand, and defendant’s adverse

employment actions, on the other.” Rohrer v. Oswego Cove, LLC, 309 Or. App. 489, 497 (2021)

(quotation marks omitted); see also Ossanna v. Nike, Inc., 290 Or. App. 16, 28 (2018), aff’d, 365

Or. 196 (2019) (interpreting the statute’s causation requirement as incorporating “the tort

principle of causation by requiring proof that the employee’s protected activity was a substantial

factor in the employer’s adverse decision”).

Intel’s motion against Tsur’s whistleblower retaliation claim fails for the same reason as

its motion against Tsur’s employment discrimination retaliation claim. Tsur’s letter of

August 11, 2012 raised the comments by Jones about Tsur’s age and not being a match with the

“team” and Tsur’s subsequent conversation with Thronson confirmed age discrimination and

Intel’s perception about the value of younger employees that skewed managers’ assessments of

employees based on age. This is sufficient to create a triable issue as to whether Tsur had a good

faith belief that he was raising a complaint or report of a violation of rules, regulations, or laws.

The same evidence supporting the ADEA causal link creates a triable issue on causation for this

claim.

For these reasons, Tsur may proceed to trial on his claims of whistleblower retaliation

under ORS § 659A.199.

D. National Origin Discrimination

Intel argues that summary judgment should be granted against Tsur’s national origin

discrimination claim because Tsur provides no evidence of discriminatory animus from Jones (or

anyone else) as to Tsur’s national origin. In response, Tsur asserts that Jones’s alleged

anti-Israeli and antisemitic remarks support an inference that Jones had discriminatory animus

based on Tsur’s national origin. The rest of the argument, Tsur contends, mirrors his cat’s paw

theory of discrimination from Tsur’s age discrimination disparate treatment claim.

Unlike with Tsur’s age discrimination claim, for his national origin discrimination claim

Tsur initially provided no evidence that Jones made any such remarks. In his response to Intel’s

motion for summary judgment, Tsur asserted that, among other comments, Jones made the

following statements to Tsur:

• You Israelis have too narrow a view of the world.

• Jews created a lot of problems in this world, look at Socialism.

• Coming from a small country like Israel, do not expect too much

cooperation from other departments at Intel.

• You Israelis speak too directly with coworkers. This is not a good

way to conduct business at Intel.

• You need to work at improving your accent.

• I find the same communication problem that I have with you,

with people who come from China or India.

ECF 68 at 7 (internal page 2) (footnote omitted). Tsur then cited to his deposition at 225:01-

236:20, which he represented were attached as Exhibit 9 to the Declaration of Shanti Lewallen

(ECF 69). Id. The only pages from Tsur’s deposition that were attached to the Lewallen

declaration, however, were pages 210, 225, 226, and 254. ECF 69 at 104-07.

On December 20, 2022, the day before oral argument, the Court provided counsel with its

Tentative Opinion and Order, noting that Tsur had provided no evidence showing any statements

by Jones reflecting national origin discrimination. Later that evening, Tsur moved for leave to

file a supplemental declaration that contained a corrected version of Exhibit 9 to the Lewallen

Decl. ECF 81. The proposed corrected version of Exhibit 9 included pages 226-36 from Tsur’s

deposition, which were cited in the Facts section of Tsur’s response to Intel’s motion for

summary judgment but inadvertently omitted from Lewallen’s declaration based on a “clerical

error.” ECF 81-1.

All of this was presented to the Court before oral argument on Intel’s motion. Because

there is no unfair prejudice to Intel, the Court granted Tsur’s motion for leave to file a

supplemental declaration. The Court also allowed Intel to file a supplemental response.

In its supplemental response, Intel argues that the alleged statements regarding “Jews”

and Tsur’s “accent” are not actionable statements about his national origin. See, e.g., Mandel v.

Bd. of Trustees of California State Univ., 2018 WL 5458739, at *7 (N.D. Cal. Oct. 29, 2018)

(distinguishing between claims based on race (Jewish) and national origin (Israeli)); but see

EEOC v. AN Luxury Imports of Tucson, Inc., 2013 WL 12044519, at *1 (D. Ariz. Dec. 5, 2013)

(denying summary judgment on claims based, in part, on allegations that supervisors “mocked”

employee’s German accent); Ahuvia v. Wyndham Vacation Resorts, Inc., 2013 WL 12407310, at

*14 (D. Haw. Nov. 13, 2013) (finding triable issue on race and national origin claims when

supervisor mimicked employee’s Jewish accent and made comments about how “Jews are

greedy and selfish”).

In Espinoza v. Farah Manufacturing Co., the Supreme Court recognized that national

origin “refers to the country where a person was born, or, more broadly, the country from which

his or her ancestors came.” 414 U.S. 86, 88 (1973). “In the federal courts, there is uncertainty

about what constitutes race versus national origin discrimination under Title VII.” Salas v.

Wisconsin Dep’t of Corr., 493 F.3d 913, 923 (7th Cir. 2007). This is because “the line between

racial and national origin discrimination is difficult to draw and . . . ‘the notion of “race” as

contrasted with national origin is highly dubious.’” Id. (quoting Ortiz v. Bank of Am., 547 F.

Supp. 550, 560-62 (E.D. Cal. 1982)).

“The EEOC defines national origin discrimination broadly to include the denial of

employment opportunities because of an individual’s, or his or her ancestor’s, place of origin or

because an individual has the physical, cultural, or linguistic characteristics of a national origin

group.” Id. (emphasis in original) (citing 29 C.F.R. § 1606.1). Jewish people of Middle-Eastern

national origin may qualify as such a group, because the line between race and national origin is

blurred.13 See id. (noting that Hispanics qualify as such a group despite coming from different

countries because they are being discriminated against “because of their appearance or accent,

the very characteristics described in the EEOC regulations”). In the context of a person of Israeli

national origin, the Court declines to parse comments that involve both being Israeli and Jewish

and exclude comments about being Jewish as unrelated to national origin.

Intel also argues that the comments are merely “stray remarks.” The Ninth Circuit,

however, applies the “stray remark” doctrine when there are only a few relatively benign

remarks. See Merrick v. Farmers Ins., 892 F.2d 1434, 1438-39 (9th Cir. 1990) (holding that a

hiring executive’s comment that he chose “a bright, intelligent, knowledgeable young man” over

the plaintiff was merely a stray remark that could not, without more, establish age

discrimination). The Ninth Circuit has rejected applying the stray remark doctrine for even a few

statements that show discriminatory animus. See Mayes v. WinCo Holdings, Inc., 846 F.3d 1274,

1282 (9th Cir. 2017) (rejecting applying stray remark doctrine based on comments that “a male”

would be better as chair of the safety committee and that supervisor did not like “a girl” running

freight crew); Dominguez-Curry, 424 F.3d at 1038 (rejecting as merely a stray remark alleged

comments of supervisor such as “women have no business in construction”); Cordova v. State

Farm Ins., 124 F.3d 1145, 1149 (9th Cir. 1997) (rejecting as merely a stray remark when

13 Judaism may also qualify as a protected class based on religion.

supervisor made two statements, including that employee was “a dumb Mexican”). The Court

thus declines to find for purposes of summary judgment that Jones’s alleged comments were

merely stray remarks.

Intel further argues that the alleged comments were unrelated to the decisionmaking

process. Tsur, however, is arguing that his supervisor Jones had discriminatory animus based on

Tsur’s national origin, that Jones gave Tsur low performance ratings and SSL awards based in

part on that discriminatory animus, and that those low performance ratings and SSL awards

influenced the decionmaking process. Tsur has provided sufficient evidence to survive summary

judgment that Jones had discriminatory animus based on national origin. For the same reasons

that the Court denied summary judgment on Intel’s discrimination claim based on age

discrimination, the Court denies Intel’s motion for summary judgment against Tsur’s national

origin discrimination claim under Title VII and Oregon law, based on the “cat’s paw” theory.

CONCLUSION

The Court GRANTS in part and DENIES in part Defendant’s Motion for Summary

Judgment (ECF 61). Plaintiff may proceed to trial on his federal and state claims of disparate

treatment age discrimination (Claim One), retaliation for reporting and/or opposing age

discrimination (Claim Three), and disparate treatment national origin discrimination (Claim

Four). The Court grants summary judgment in favor of Defendant on Plaintiff’s federal and state

claim of disparate impact age discrimination (Claim Two).

IT IS SO ORDERED.

DATED this 29th day of December 2022.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge