195 F.Supp.2d 1212 (D.Or. 2002), Civ. 01-316, Heller v. Columbia Edgewater Country Club

Docket Nº:CIV. 01-316-JE.
Citation:195 F.Supp.2d 1212
Party Name:Elizabeth E. HELLER, Plaintiff, v. COLUMBIA EDGEWATER COUNTRY CLUB, an Oregon corporation, Defendant.
Case Date:March 05, 2002
Court:United States District Courts, 9th Circuit, District of Oregon

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195 F.Supp.2d 1212 (D.Or. 2002)

Elizabeth E. HELLER, Plaintiff,


COLUMBIA EDGEWATER COUNTRY CLUB, an Oregon corporation, Defendant.

No. CIV. 01-316-JE.

United States District Court, D. Oregon.

March 5, 2002

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Craig Alan Crispin, Shelley Dennis Russell, Crispin & Associates, Portland, ME, for Plaintiff.

Charles W. Carnese, Charles W. Carnese, P.C., Douglas R. Andres, Bullivant Houser Bailey, Portland, ME, for Defendant.


ROBERT E. JONES, District Judge.

Magistrate Judge John Jelderks filed Findings and Recommendation (# 39) on January 3, 2002, in the above entitled case. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of a magistrate judge's Findings and Recommendation, the district court

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must make a de novo determination of that portion of the magistrate judge's report. See 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982).

Defendant has timely filed objections. I have, therefore, given de novo review of Magistrate Judge Jelderks' rulings.

I find no error. Accordingly, I ADOPT Magistrate Judge Jelderks' Findings and Recommendation (# 39) dated January 3, 2002, in its entirety. Defendant's motion for summary judgment (# 14) is DENIED.



JELDERKS, United States Magistrate Judge.

Plaintiff Elizabeth Heller brings this employment-related action against defendant Columbia Edgewater Country Club (the "Club"). Defendant moves for summary judgment on all claims. I recommend that motion be denied and the matter set for trial. Defendant's motion to strike certain evidence from the record is denied.


The purpose of a summary judgment motion is to determine whether there are genuine issues for trial. Summary judgment will be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. FRCP 56(c). A material fact is one that may affect the outcome of the action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment may be granted, despite the presence of some factual disputes, if the resolution of those disputes could not change the final result. Id. See also Brunet, Redish, & Reiter, SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE § 6.04 (2d ed 2000).

When a defendant moves for summary judgment, the plaintiff must proffer evidence that, if believed by a jury, would be sufficient to permit the jury to return a verdict in favor of the plaintiff at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The evidence, and any reasonable inferences that may be drawn from it, must be viewed in the light most favorable to the non-moving party. Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1257 (9th Cir. 2001).


The facts of this case are vigorously disputed, and the defendant has categorically denied any wrongdoing. However, for purposes of this motion, when facts are in dispute the court must assume that any admissible evidence proffered by the plaintiff is true, and must also draw all reasonable inferences from the evidence in the plaintiff's favor. This requirement necessarily shapes the court's discussion of the facts.

Plaintiff Heller was employed by the Club, as a line cook, from approximately June 9, 1999, through May 17, 2000. She was recommended for that position by the Club's sous chef, 1 David Strouts, who also is Heller's cousin. The sous chef, Strouts, reported to the Executive Chef, Carol Cagle. The latter often was present in the kitchen and exercised direct supervisory control over Heller if both were on duty at the same time. It is undisputed that Cagle

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had the power to hire and fire employees.

Plaintiff is a lesbian. She didn't announce that fact to her co-workers, but didn't try to hide it either. During the course of normal conversations, Heller would mention her girlfriend, just as other employees talk about their boyfriend or spouse.

Plaintiff has produced evidence from which a jury could conclude that Cagle harbored strong biases against homosexuals, 2 and openly voiced these views during management meetings. For this reason, Strouts says, when he recommended that Cagle hire Heller, he also felt compelled to tell Cagle that Heller is homosexual:

I just said, "My cousin's coming back from Sacramento. She's an excellent cook. She's been working at a club for several years." I said, "You may have a problem. She's gay, but I know your (sic) really hurting for cooks. And I worked fine with her. I worked with her at the zoo. I know what she can do. She's got a great pair of hands and she's very quick. Let's bring her on."

Strouts Depo. at 48. According to Strouts, Cagle "wanted to talk to her" first and he assumed that she did, because Heller was soon hired. Cagle's recollection of this conversation is very different. She says she didn't meet Heller until after the latter was hired, and first learned that Heller is a lesbian a week or two later.

Heller's first few months at the Club were comparatively uneventful (compared to what allegedly followed), but that changed around the time a Ladies Professional Golf Association (LPGA) Tournament was held at the Club (approximately September 1999). Cagle allegedly became increasingly obsessed with the fact that Heller was having an intimate relationship with a woman, and otherwise failing to comport with Cagle's notions of how a woman ought to behave. In his deposition, Strouts testified that Cagle made derogatory comments regarding this subject "daily .... It was kind of an ongoing monologue," a "constant mantra ... of negative background noise," "a litany ... it happened all the time." Strouts Depo. at 38, 52, 64. Many of the statements were made directly to Heller or in her presence, while others were made to Strouts and other Club employees.

Cagle allegedly asked Heller questions such as, "Do you wear the dick in the relationship?" and, "Are you the man?" Another time, when Heller inquired, "don't I look cute in this dress," Cagle allegedly responded, "Oh, I thought you were the man." Other remarks of this sort were along the lines of, "I thought you wore the pants." Heller also recalls Cagle commenting on her "faggy shoes," which Heller construed as a reference to Heller wearing "men's shoes."

On a number of occasions while conversing with Heller in the kitchen, Cagle made references to her that included words such as "fag," "faggy," and "homo," or "I thought that was a fag thing," "that's just a homo thing," or "Oh, you're just a homo."

After a second Club employee, Nick Doolittle, disclosed that he was gay, Cagle allegedly complained to Strouts, "Now that Nick's been hanging around with Liz he's gone fag, too. I can't believe this. What have you done to my staff?" Cagle asked Heller, "Did you rub off on him?" When Heller started to walk past Cagle in the kitchen, Cagle allegedly exclaimed, "Stay away from me because it might rub off on me," and "No, no, don't come near me."

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Another employee, Amanda Guerrero, told Heller that Cagle had said (about Heller), "She must have rubbed off on [Nick]," accompanied by a limp wrist gesture. When Doolittle bleached his hair (similar to Heller's hair), Cagle remarked to Heller, "It must be a fag thing." Heller also heard (she thinks it was from a department manager, Jerry Carpenter) that Cagle was telling other employees that "Going out with [Heller] made Nick gay."

Doolittle and Heller (i.e., the only openly homosexual employees in the kitchen) both worked on the "night crew." Cagle became increasingly critical of that crew, making statements such as, "What happens here at night? Just one big fag party?" or "What is going on down there? Are you just having some kind of fag party at night?" Strouts testified that Heller was "deeply offended" by that remark, and that Heller and Strouts discussed it afterward "many, many, many times." Heller also recalls Cagle making comments to her such as, "Is this a fag party?" and "Is this a homo party, or what?" (directed at Heller and Doolittle).

At some point, Cagle learned "through rumors" that Heller's lover was of a different race. Cagle allegedly complained to Strouts, "Being a lesbian isn't bad enough, she has to date a Black girl." Strouts conveyed to Heller what Cagle had said. Heller Depo. at 83-84. Strouts also recalls Cagle saying to Heller, "I can believe you're dating women, but I can't believe you're dating a black woman." Strouts also recalls Cagle repeatedly expressing to him her consternation that Heller was "sleeping with niggers." Later, when Heller and her lover apparently separated, Cagle allegedly told Strouts, "I'm glad she's finally broke[n] up with that nigger." Strouts Depo. at 145.

During her deposition, Heller did not recall Cagle directing explicit racial remarks at her, but she did recall Cagle instructing Club employees to "hide all the valuables" when the Club was hosting a banquet for the NAACP. In conversing with Heller, Cagle also allegedly used the term "that thing" when referring to Heller's girlfriend.

Several witnesses testified that Cagle made numerous derogatory remarks about Hispanic (and Mayan) employees, referring to them as "beaners," "wetbacks," "dirty Mexicans," "lazy," "good-for-nothings," etc. Cagle also allegedly complained that "Those fucking Mexicans are robbing me blind" and...

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