Wood v. Gcc Bend, LLC

• Decision Date: 06 September 2005
• Docket Number: No. 04-35073.,04-35073.
• Citation: 422 F.3d 873
• Parties: Deborah WOOD, Plaintiff-Appellant, v. GCC BEND, LLC, an Oregon Limited Liability Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

422 F.3d 873

Deborah WOOD, Plaintiff-Appellant, v. GCC BEND, LLC, an Oregon Limited Liability Corporation, Defendant-Appellee.

No. 04-35073.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 2005.

Filed September 6, 2005.

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Scott N. Hunt and Matthew B. Duckworth, Busse & Hunt, Portland, OR, for the plaintiff-appellant.

Richard N. VanCleave and Bradley F. Tellam, Barran Liebman LLP, Portland, OR, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon; Donald C. Ashmanskas, Magistrate Judge, Presiding. D.C. No. CV-01-01723-DCA.

Before: RYMER and KLEINFELD, Circuit Judges, and WEINER,^* Senior District Judge.

RYMER, Circuit Judge.

Deborah Wood appeals from the partial summary judgment entered in favor of GCC Bend, LCC, on her claims for age discrimination and retaliation in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623, Or.Rev.Stat. § 659A.030 (the state age discrimination statute), and the Oregon common law of wrongful constructive discharge.¹ The district court granted summary judgment on the Oregon common law claim and on the statutory claims to the extent they were based on a constructive discharge theory, and it denied summary judgment on Wood's ADEA claim and its Oregon counterpart to the extent that each was based on a theory that Wood suffered an adverse employment action when she was reassigned from one position to another. The court certified its judgment pursuant to Fed.R.Civ.P. 54(b) on all claims to the extent they are premised on constructive discharge; it then stayed and administratively dismissed, without prejudice, the remaining proceedings pending appeal of the constructive discharge issue. We conclude that the constructive discharge issue should not be immediately appealable, and we therefore lack jurisdiction. Accordingly we reverse the certification, dismiss the appeal, and remand.

I

GCC Bend hired Wood on January 24, 2000, at the age of 48, to be Director of Sales for the radio stations that it operated in Bend, Oregon. GCC Bend was owned by Herb Gross and his two sons, Jim and John. John Gross was President and oversaw all company operations. According to Wood's evidence, she had a base salary of $65,000 with the possibility of a quarterly bonus if the sales department met budgeting goals. John Gross tended to hire younger employees than those hired by Wood and the general manager, Dan Volz, and he often replaced departing employees with younger employees. Both John and Jim Gross made comments about wanting a younger sales force, and criticized older employees as "out of touch." John Gross also socialized with younger employees outside the office, was critical of older employees but hands-off with younger employees, gave older salespeople more challenging budget goals while transferring accounts to younger salespeople, and afforded training opportunities to younger sales staff instead of older staff, contrary to Wood's recommendation.

Wood told Gross that the budget goals for the older sales-people were unattainable; she differed with his decisions to transfer accounts from three older workers; she defended the older salespeople's ability to sell for radio stations with younger demographics; and she hired older applicants for sales positions contrary to Gross's wishes. After this, Gross's "micro-management" of Wood increased, and he embarrassed Wood in front of her co-workers by cutting her off mid-sentence and ignoring her, by stating in their presence that he would not give her a raise and that she was making more than her performance merited, and by having a younger salesperson, Brian Canady, give a presentation that she didn't know about on one of her accounts. In either November or December 2000, Gross met with Wood, yelled at her, and told her that she had no input or decision-making power for hiring or firing in the sales department.

In March 2001, Wood was reassigned by the new general manager, Steve Stephenson, from Director of Sales to "National Sales Manager." Her new position required less management and more sales. Wood signed a modified employment agreement providing that she would receive the same salary as before, $65,000, plus quarterly bonuses based on her own sales, and that she would receive severance pay if she were terminated without cause. In the first quarter she earned a bonus of $3,500 — her first bonus at the company.

Stephenson resigned March 30 but, according to Wood, told her before he resigned that Gross made the decision to "demote" her because of "weaknesses" and that Gross planned eventually to promote Canady to replace her. In late June 2001, John Gross asked Wood to meet with him and Laurie Reyes, the business manager. Gross talked about the fact that Wood's apparent unhappiness was demoralizing the sales department, and that a number of people had told him that Wood wanted to leave the company. Gross suggested that perhaps she and the company were no longer a good match. He explained that they could part as friends and work something out financially. Wood told Gross, falsely, that she was happy. When Wood asked Gross if he was firing her, he looked surprised and said no, but that if she were unhappy it wasn't healthy for her or the company and perhaps she should rethink her position.

Soon after the meeting, Gross called Wood at home when she was out sick to let her know that he had hired a new Director of Sales. He described the new director as "young, energetic, a runner and highly qualified." Wood believed that the company could not afford to keep her, the new Director of Sales, and Canady on the payroll and that Gross was intent on forcing her to resign. Wood resigned on July 13, 2001, the day she received her bonus and approximately three weeks after the meeting with Gross and Reyes.

Wood then brought suit alleging claims for (1) age discrimination, and retaliation for opposition to age discrimination, in violation of the ADEA; (2) age discrimination, and retaliation for opposition to age discrimination, in violation of Or.Rev.Stat. § 659A.030; and (3) wrongful constructive discharge. GCC Bend moved for summary judgment, which the district court granted in part (on Wood's theory of constructive discharge) and denied in part (on her theory of demotion). It concluded that while her change in job title could reasonably be considered a demotion, not every demotion is a constructive discharge; that she did not resign as a result of it; and that Wood's other evidence does not show a change in the conditions of her employment sufficient to support a claim of constructive discharge under federal or state law. However, the court found that Wood did raise a triable issue that she was demoted, which would be an adverse employment action, and that there was enough evidence to show that it was on account of unlawful discrimination. Thus, it concluded, Wood's claims for age discrimination and retaliation survive summary judgment but only to the extent they are premised on the adverse employment action of her reassignment, and that because there is no issue of material fact that she was not constructively discharged, that theory cannot, as a matter of law, support her claims for age discrimination and retaliation.

Wood moved for certification of the judgment on her constructive discharge claims under the ADEA and Oregon statutory and common law, and to stay the remaining proceedings. The district court granted the motion, reasoning that Wood's claim for wrongful constructive discharge is a distinct claim; that her claims for discrimination and retaliation under the ADEA and its Oregon counterpart, to the extent they are based on a theory of constructive discharge, are closely related, factually and legally, to the common law claim; and that the "pragmatic approach" is to grant certification of judgment on her statutory claims as well as on her common law claim.

Wood timely appealed. GCC Bend contested certification in the district court, but let it go on appeal. Perhaps GCC Bend decided that it would just as soon have an appellate resolution on the merits of the constructive discharge issues, but jurisdiction cannot turn on consent or a change of heart. Therefore, we asked the parties to discuss at oral argument whether the judgment was properly certified under Rule 54(b). They did, and we now explain why we disagree with the district court's determination to certify.

II

Rule 54(b) provides that "[w]hen more than one claim for relief is presented in an action, . . . the court may direct entry of final judgment as to one or more but fewer than all of the claims . . . only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." The Supreme Court set out a framework for applying this rule in Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956), which it repeated more recently in Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 7-10, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980).

A district court must first determine that it has rendered a "final judgment," that is, a judgment that is "`an ultimate disposition of an individual claim entered in the course of a multiple claims action.'" Curtiss-Wright, 446 U.S. at 7, 100 S.Ct. 1460 (quoting Mackey, 351 U.S. at 436, 76 S.Ct. 895). Then it must determine whether there is any just reason for delay. "It is left to the sound judicial discretion of the district court to determine the `appropriate time' when each final decision in a multiple claims action is ready for appeal. This discretion is to be exercised `in the interest of sound judicial administration.'" Id. at 8, 100 S.Ct. 1460 (quoting Mackey, 351 U.S. at 437, 76 S.Ct. 895). Whether a final decision on a claim is ready for appeal is a different inquiry from the equities involved, for consideration of judicial...