# Bond v. Shriners Hospitals for Children

> District Court, D. Oregon · March 20, 2025

URL: https://www.frixlaw.com/law-library/cases/10827933

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 20, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LORI BOND, Case No. 3:20-cv-1943-SB

Plaintiff, ORDER

v.

SHRINERS HOSPITALS FOR
CHILDREN,

Defendant.

Michael H. Simon, District Judge.

United States Magistrate Judge Stacie F. Beckerman issued Findings and
Recommendation in this case on November 22, 2024. Judge Beckerman recommended that this
Court deny Defendant’s motion for summary judgment.
Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party objects to a magistrate judge’s findings and recommendations, “the court
shall make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).
For those portions of a magistrate judge’s findings and recommendations to which neither
party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474
U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate’s report to which no objections are filed.”); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court
must review de novo magistrate judge’s findings and recommendations if objection is made, “but
not otherwise”). Although in the absence of objections no review is required, the Act “does not

preclude further review by the district judge[] sua sponte . . . under a de novo or any other
standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Rule 72(b) of the
Federal Rules of Civil Procedure recommend that “[w]hen no timely objection is filed,” the
Court review the magistrate judge’s recommendations for “clear error on the face of the record.”
Defendant timely filed an objection, to which Plaintiff responded. Defendant objects to
several aspects of Judge Beckerman’s recommendation. The Court addresses each in turn.
A. Evidentiary Objections
Defendant argues that its evidentiary objections should not have been overruled for a
failure to confer. Defendant also identifies two evidentiary rulings that it contends were improper
for other reasons: (1) the admission of a letter from the Oregon Employment Department

(“OED”) to Plaintiff and (2) the exclusion of Defendant’s documents from June 7, 2019 (“June 7
documents”). The Court addresses each objection in turn.
1. Failure to Confer
Defendant first argues that Judge Beckerman improperly overruled its evidentiary
objections based on a failure to certify conferral under LR 7-1(a). Defendant contends that the
parties did confer before Defendant filed its motion for summary judgment and that further
conferral would have been futile. Plaintiff responds that although the parties conferred to discuss
Defendant’s motion for summary judgment, Defendant did not confer with Plaintiff about
evidentiary objections to items she offered in support of her response to that motion. Plaintiff
further argues that conferral would not have been futile.
It is undisputed that Defendant did not confer with Plaintiff about Defendant’s
evidentiary objections. Courts have discretion in deciding whether to overrule evidentiary
objections based on a failure to confer and may choose to consider objections when conferral

would have been of limited utility and the non-movant had an opportunity to be heard. See, e.g.,
Old Navy, LLC v. Center Devs. Or., LLC, 2012 WL 2192284, at *3 (D. Or. June 13, 2012)
(excusing failure to confer because the conferral rules were recently amended); DeWalt Prods.,
Inc. v. City of Portland, 2019 WL 4045659, at *2 (D. Or. Aug. 26, 2019) (excusing failure to
confer because it was clear that conferral would not have resolved the identified disputes);
Arnold v. Pfizer, Inc., 970 F. Supp. 2d 1106, 1128 (D. Or. 2013) (same); Clear Skies Nev., LLC
v. Kainu, 2017 WL 4021121, at *2-3 (D. Or. Aug. 21, 2017) (excusing failure to confer where
consultation would not have resolved issues), findings and recommendation adopted, 2017
WL 4012960, at *1 (D. Or. Sept. 12, 2017). As Judge Beckerman explained, conferral in this

case would have been useful and may have resolved several disputes. For example, Defendant
produced many of the exhibits it objects to during discovery and even filed some of the exhibits
it objects to in support of its own motion. Moreover, none of Defendant’s evidentiary objections
were overruled solely due to its failure to confer; the Findings and Recommendation identified
other reasons why each objection was overruled. The Court thus agrees that Defendant’s
evidentiary objections were properly overruled because of both the failure to confer and the other
enumerated reasons in the Findings and Recommendation.
2. OED Letter
Defendant argues that Judge Beckerman should not have considered the letter from the
OED because it was not authenticated and contained inadmissible hearsay. Defendant also
contends that in response to its Request for Production (“RFP”) Number 28, Plaintiff agreed to
produce documents that “demonstrate her job searches, applications, and unemployment
benefits, if any,” ECF 89-1 at 16-17, and that Plaintiff did not produce the OED letter in response
to this RFP. Plaintiff responds that Judge Beckerman properly considered the letter because
Defendant would have had it in its possession under OED protocol. Plaintiff also argues that she

told Defendant in her responses to the RFP and interrogatories that she had unsuccessfully
applied for unemployment.
Defendant has not identified any specific discovery request to which the OED letter is
responsive. This letter is not responsive to RFP 28—which requested only documents or
communications related to Plaintiff’s efforts to “secure employment, self-employment or the
creation of or operation of any business,” ECF 89-1 at 16-17, not unemployment benefits—or
Plaintiff’s agreed disclosure because it did not demonstrate any unemployment benefits. Instead,
it shows that Plaintiff was denied unemployment benefits. Thus, the letter should not be stricken
for failure to comply with discovery requests.

Further, Defendant does not explain how the letter was not authenticated or contained
inadmissible hearsay. At summary judgment, 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., LLC v. Jim Beam Brands Co., 828 F.3d 1098,
1110 (9th Cir. 2016); 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”). The underlying evidence, a letter from a
state agency, could be authenticated at trial by Plaintiff or by someone from the OED, and does
not constitute hearsay because it is a record of regularly conducted activity under Rule 803(6) of
the Federal Rules of Evidence. The Court thus adopts the Findings and Recommendation and
considers the OED letter.
3. The March 12, 2024, Opinion and Order
Finally, Defendant argues that an earlier Opinion and Order, dated March 12, 2024,

ECF 79, erroneously ruled that the June 7 documents were inadmissible. Defendant argues that
the June 7 documents were not responsive to any discovery request and that the parties had opted
out of the initial disclosure requirement. Thus, Rule 26(a) of the Federal Rules of Civil
Procedure was inapplicable. Defendant also contends that the June 7 documents did not need to
be disclosed earlier because they were not used to determine employment termination but are
admissible to show timing. Plaintiff responds that the March 12 Opinion and Order was based on
Defendant’s representation that it did not have to disclose the June 7 documents earlier because
they were unrelated to Plaintiff’s termination and that Defendant cannot now “backpedal” on this
representation.
In the March 12 Opinion and Order, Judge Mosman (the district judge formerly assigned

to this case) denied to impose sanctions against Defendant for failing to produce the June 7
documents until the last day of discovery. Bond v. Shriners Hosps. for Child., 2024
WL 1091563, at *1-2 (D. Or. Mar. 12, 2024) (Mosman, J.) (adopting Judge Beckerman’s
Findings and Recommendation). Judge Mosman explained that this decision was based on
Defendant’s representation that its “position and opinion regarding its decision to terminate
[Plaintiff]—including, necessarily, the timing of that decision—is set forth in the June 12, 2019,
counseling report, and not in the late-disclosed documents.” Id. at *2 (emphasis added). Thus,
Judge Mosman “accept[ed] this rationale on the understanding that the documents in question are
not to be relied upon for any purpose in this case. [He was not] imposing exclusion as a sanction,
but instead pointing out the necessary outcome of the position which [Defendant] adopts.” Id.
Defendant may not “gain[] an advantage by asserting one position, and then later seek[]
an advantage by taking a clearly inconsistent position.” Hamilton v. State Farm Fire & Cas.
Co., 270 F.3d 778, 782 (9th Cir. 2001). Defendant stated in its opposition to Plaintiff’s motion

for sanctions that the June 7 documents were not documents upon which its decision to terminate
Plaintiff was based. ECF 68 at 6. Defendant further argued that Judge Beckerman’s Findings and
Recommendation on Plaintiff’s motion for sanctions was “correct and should be accepted in
full.” ECF 78 at 3. The Findings and Recommendation included the statement that “[t]hese
records before the Court corroborate [Defendant’s] representation that [the] June 7, 2019 emails
and attachments were not part of [Plaintiff’s] personnel file because [Defendant] did not rely on
the documents to terminate [Plaintiff].” ECF 74 at 27. This position is clearly inconsistent with
Defendant’s current position that the June 7 documents can be used to show the timing of its
termination decision: if a party did not rely on a document in making a decision, the document

necessarily was not relevant to the timing of its decision. The Court therefore adopts the Findings
and Recommendation and excludes the June 7 documents.
B. Plaintiff’s Declaration
Defendant argues that the Findings and Recommendation should not have considered
Plaintiff’s declaration submitted in response to Defendant’s motion for summary judgment, as it
is a “sham affidavit” that contradicts her deposition testimony. Defendant also contends that the
Court cited deposition testimony that was not cited by Plaintiff. Defendant argues that in doing
so, the Court violated LR 56-1(a). Plaintiff responds that, as Judge Beckerman noted, the
declaration did not contradict Plaintiff’s deposition testimony but merely “filled in holes,” and
that Defendant misreads LR 56-1(a).
The sham affidavit rule applies only when “the inconsistency between a party’s
deposition testimony and subsequent affidavit [is] clear and unambiguous.” Van Asdale v. Int’l
Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). Judge Beckerman thoroughly analyzed
Plaintiff’s declaration and deposition testimony and found that there was no clear and
unambiguous inconsistency between the two, and the Court agrees. Regarding LR 56-1(a), it

merely requires that “[a] party’s factual positions must be supported by citations, by page and
line as appropriate, to the particular parts of materials in the record.” This rule does not mandate
that a party cite to every portion of the record that it wishes the Court to consider. It was proper
for Judge Beckerman to consider the admissible record before her, regardless of whether Plaintiff
cited to an exact page or line. The Court thus adopts the Findings and Recommendation as to this
declaration and holds that it is admissible at the summary judgment stage.
C. Plaintiff’s Failure to Mitigate
Defendant next argues that the Findings and Recommendation erroneously did not bar
Plaintiff’s claims for economic and non-economic damages. Defendant contends that the Court
should find that Plaintiff failed to mitigate her damages as a matter of law, again arguing that

Plaintiff’s declaration was a sham affidavit. Plaintiff responds that Judge Beckerman correctly
considered statements in Plaintiff’s declaration, and these statements created a material issue of
fact such that summary judgment was not appropriate.
As discussed, Judge Beckerman properly considered statements in Plaintiff’s declaration
regarding her efforts to seek employment. These statements are sufficient to create a genuine
dispute as to whether Plaintiff failed to mitigate her damages. Thus, the Court adopts the
Findings and Recommendation and denies summary judgment on this affirmative defense.
D. Plaintiff’s Age Discrimination Claim
Defendant argues that Judge Beckerman should have granted summary judgment against
Plaintiff’s age discrimination claim. Defendant contends that Plaintiff’s raise of 1.5 percent was
a mistake, and that Plaintiff cannot show that similarly situated younger individuals were treated
more favorably or that she suffered an adverse employment action. Plaintiff responds that until

its summary judgment briefing, Defendant consistently argued that the 1.5 percent raise was not
a mistake, and that a raise that is lower than the employer’s specified pay increase is an adverse
employment action that younger employees did not suffer. Plaintiff further contends that
Defendant argues that Plaintiff did not suffer an adverse employment action and that similarly
situated younger individuals were treated more favorably for the first time in its objections, and
thus these arguments are not properly before the Court.
A district court is not required to “consider new arguments raised for the first time in an
objection to a magistrate judge’s findings and recommendation.” Brown v. Roe, 279 F.3d 742,
745-46 (9th Cir. 2002). “[I]n making a decision on whether to consider newly offered evidence,
the district court must actually exercise its discretion, rather than summarily accepting or

denying the motion.” United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000). Courts
generally exercise their discretion to consider new arguments when the party making the
argument is a pro se litigant or the argument is in an unsettled area of law. See, e.g., Sossa v.
Diaz, 729 F.3d 1225, 1231 (9th Cir. 2013) (pro se habeas petitioner’s claim in “an unsettled area
of law”); Brown, 279 F.3d at 745 (“functionally illiterate” pro se habeas petitioner’s “relatively
novel [equitable tolling] claim under a relatively new statute”); Jones v. Blanas, 393 F.3d 918,
935 (9th Cir. 2004) (pro se plaintiff, “ignorant of the law, offering crucial facts as soon as he
understood what was necessary to prevent summary judgment against him”). The circumstances
here do not warrant consideration of Defendant’s new arguments, as Defendant is represented by
counsel and this is not an unsettled area of law. Thus, the Court does not consider Defendant’s
arguments as to Plaintiff’s failure to prove her prima facie case.
As to Defendant’s argument that the 1.5 percent raise was a mistake, evidence in the
record raises a genuine dispute of material fact on this issue. In Defendant’s answer to Plaintiff’s
complaint, Defendant denied that the 1.5 percent pay increase was an error. See ECF 38 ¶ 10

(“Defendant admits that Plaintiff received a 1.5% pay increase on December 16, 2018.
Defendant denies the remaining allegations in Complaint paragraph 10.”); ECF 1-1 ¶ 10 (“In
January 2019, Plaintiff only received a 1.5% pay increase, which was less than the 2018 FY Pay
Increase that was provided. Plaintiff notified Ms. Mazoros who[] apologized for the error and
that it would be fixed. This remained unfixed through Plaintiff’s termination.”). The record
reflects that Plaintiff never received confirmation that her raise was a mistake. Thus, the Court
adopts the Findings and Recommendation and denies summary judgment on this claim.
E. Plaintiff’s Whistleblower Claim
Finally, Defendant argues that Judge Beckerman should have granted summary judgment
against Plaintiff’s whistleblower claim. Defendant contends that the June 7 documents show that

its termination decision predated Plaintiff’s whistleblower emails, and thus Plaintiff’s June 11
email was not a substantial factor in the termination decision. Plaintiff again responds that Judge
Beckerman correctly did not consider the June 7 documents. Further, Plaintiff argues that she
presented other evidence of whistleblowing beginning in January 2019, such that there is at least
a genuine dispute as to whether Defendant’s termination decision was based on Plaintiff’s
whistleblowing.
Plaintiff presented sufficient evidence of her whistleblowing activity before June 11,
2019, such that, even considering the June 7 documents, a reasonable factfinder could find that
Defendant terminated Plaintiff’s employment in retaliation for whistleblowing. Judge Beckerman
analyzed this activity and held that it presented sufficient evidence of protected activity. Further,
Defendant did not object to this finding. Thus, the Court adopts the Findings and
Recommendation and denies summary judgment on this claim.
CONCLUSION
The Court ADOPTS the Findings and Recommendation, ECF 96. The Court DENIES

Defendant’s Motion for Summary Judgment, ECF 83.
IT IS SO ORDERED.

DATED this 20th day of March, 2025.

/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/10827933. Public record. Not legal advice.