439 F.3d 1018 (9th Cir. 2006), 04-35408, Cornwell v. Electra Cent. Credit Union

Docket Nº:04-35408.
Citation:439 F.3d 1018
Party Name:Raymond M. CORNWELL, Plaintiff-Appellant, v. ELECTRA CENTRAL CREDIT UNION; James E. Sharp, Defendants-Appellees.
Case Date:March 01, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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439 F.3d 1018 (9th Cir. 2006)

Raymond M. CORNWELL, Plaintiff-Appellant,


ELECTRA CENTRAL CREDIT UNION; James E. Sharp, Defendants-Appellees.

No. 04-35408.

United States Court of Appeals, Ninth Circuit.

March 1, 2006

Argued and Submitted Sept. 14, 2005.

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Craig A. Crispin, Crispin Employment Lawyers, Portland, Oregon, for the plaintiff-appellant.

Richard R. Meneghello (argued), Fisher & Phillips, LLP, Portland, Oregon; Karen E. Saul (argued) and Kimberley Hanks McGair, Farleigh, Wada & Witt, PC, Portland, Oregon, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Garr M.

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King , District Judge, Presiding. D.C. No. CV-03-00699-GMK.

Before: Raymond C. Fisher, Ronald M. Gould, Carlos T. Bea, Circuit Judges.

GOULD, Circuit Judge:

Plaintiff-Appellant Raymond Cornwell appeals the district court's order granting summary judgment to defendants-appellees Electra Central Credit Union and Jim Sharp, and dismissing Cornwell's retaliation and race discrimination claims under 42 U.S.C. § 1981, Title VII, and Oregon law. Cornwell also appeals the district court's order denying his motion to reopen discovery so that Cornwell could depose an additional witness to oppose summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and reverse in part.

I 1

Electra Central Credit Union (Electra) is a not-for-profit cooperative that provides financial services, including banking and lending, to its members. On August 30, 1993, Electra hired Raymond Cornwell, who is African-American, as its Director of Lending. Cornwell supervised the nine employees who worked in Electra's loan department and managed Electra's lending operations until Cornwell was promoted to Vice President and Chief Operating Officer in 2000. Thereafter, Cornwell managed Electra's branches and cash operations in addition to Electra's lending business.

During Cornwell's stewardship of Electra's lending operations, the value of Electra's loan portfolio grew from just over $65 million in December 1997 to more than $85 million in December 2000. Although the portfolio's value decreased by about four percent, to about $80 million, between December 2000 and December 2001, the record on summary judgment, viewed most favorably to Cornwell, does not suggest that a deficiency in Cornwell's management caused this decrease.

When Cornwell joined Electra, it sold financial products individually. For example, a member who wanted to purchase both a home loan and a checking account would buy the checking account from one of Electra's employees and the home loan from another. In 1999, Electra's management team and its Board of Directors adopted a policy to create a "sales culture," in which each of Electra's front-line employees would be able to sell every product that Electra offered.

Electra's transition to a sales culture was ongoing when, on September 17, 2001, Electra hired Jim Sharp, a Caucasian, as Chief Executive Officer. At his deposition, Cornwell testified that during the early months of Sharp's tenure, Sharp excluded Cornwell from meetings at which the management team discussed issues within the scope of Cornwell's responsibilities as Vice President and Chief Operating Officer. Corn-well also testified by deposition that Sharp had said he would fire any member of the management team who "goes to the board and doesn't talk to me first about it ... ."

On November 9, 2001, during a meeting of Electra's management team at Sharp's home, Sharp made comments about women that Cornwell considered "unprofessional" and "close to sexual harassment." Three days later, Cornwell told Bonnie Cottrell, Electra's Vice President of Human Resources, about Sharp's comments. Cornwell said that he thought Sharp's behavior

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at the meeting should be "dealt with in some fashion," but Cornwell did not explicitly ask Cottrell to investigate Sharp's remarks, and Cottrell did not offer to do so. Nor did Cottrell speak to Sharp about Cornwell's concerns.

In late November or early December 2001, Sharp informed the management team that he intended to reorganize Electra's operations to facilitate the transition to a sales culture, but Sharp did not specify what changes he was considering. Although Sharp discussed his reorganization plans with members of Electra's management team over the next few weeks, Cornwell testified that Sharp did not include Cornwell in these meetings, or notify him about them, even though a reorganization would affect Cornwell's responsibilities and opportunities.

On the afternoon of December 12, Cornwell asked Sharp what organizational changes he planned to make. Sharp said that he intended to create a new management position, Vice President of Sales and Branch Operations; to promote Virginia Hall, a Caucasian, to fill that position; and to reassign responsibility for Electra's branches and cash operations to Hall, who previously had not been a member of Electra's management team. Sharp also said that he intended to eliminate the title of Chief Operating Officer and to change Corn-well's title to Vice President of Lending. As a result of these changes, Cornwell would retain responsibility for Electra's lending operations but lose responsibility for Electra's branches and cash operations and he would manage fewer employees. Sharp explained to Cornwell that Sharp wanted Cornwell to focus on Electra's lending operations to correct problems with the sales culture and with lending, including the decrease in the value of Electra's loan portfolio. Cornwell asked why he had not been included in the reorganization planning process. Sharp did not answer, but offered to help Cornwell find employment with a different firm in the financial industry if Cornwell did not want to continue working for Electra.2

The next day, Sharp announced the reorganization publicly during a management team meeting. Cornwell was the only African American member of the management team, and the only executive whom Sharp demoted. Sharp asked each person at the meeting to commit to support the reorganization. Cornwell felt "blind-sided," "embarrassed," and "humiliated" by Sharp's request that Cornwell publicly endorse his own demotion. Every member of the management team agreed to support the reorganization, except Cornwell, who said that he supported Electra, but not Sharp's "process" or "system."

After this meeting, Cornwell again complained to Bonnie Cottrell about Sharp's behavior at the November 9 meeting, and now also about the reorganization. Cornwell asked Cottrell whether race had played a role in Sharp's decision to demote Cornwell. Cottrell responded that she did not think that race was a factor in Sharp's reorganization process but Cottrell suggested that Cornwell express his concerns to Electra's Board of Directors. The record on summary judgment does not indicate affirmatively that Cottrell investigated Corn-well's concerns about race discrimination.

Soon thereafter, Cornwell spoke to Bob Pearson, a member of Electra's Board of

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Directors. Cornwell told Pearson that he disagreed with Sharp's decision to reassign some of Corn-well's responsibilities to Hall, who was a less experienced executive than Cornwell, but Cornwell did not explicitly accuse Sharp of race discrimination. At Cornwell's deposition, Electra's counsel asked if Cornwell told Pearson that Cornwell thought race had influenced Sharp's decision to demote Cornwell. In response, Cornwell testified:

No. What I told him was that I was unsure as to what the motives — what motives were driving Jim Sharp, and I asked a question, I don't know if it's the color of my skin, I don't know if it's the fact that he just doesn't like me, I don't know whether it's the fact that I'm a man and not a woman, I said, I'm not sure what's driving him in this situation, I just feel that it's wrong.

Cornwell also told Pearson about Sharp's alleged inappropriate sexual comments. According to Cornwell, Pearson responded that the Board would "investigate" and "find out" Sharp's motives for the demotion.

On February 13, 2002, Cornwell met with Bob Potter, the chairman of Electra's Board of Directors, regarding the concerns Cornwell expressed to Pearson when they met in December. Potter gave Cornwell a memorandum, in which the Board of Directors "ratified" Sharp's reorganization and endorsed Sharp's authority to alter Electra's management structure to improve the credit union's financial performance. This memorandum advised Cornwell that the Board of Directors had instructed Sharp not to discuss personal private or sexual issues with Electra's employees unless there was a business-related reason to do so. Although the memorandum purported to resolve Cornwell's concerns, it did not address in any way Sharp's motivation for demoting Cornwell. During their meeting, Cornwell and Potter discussed the motivation underlying Sharp's decision to demote Cornwell. Cornwell testified that:

[Potter] indicated that he did not question [Sharp's] motives. I said, I'm concerned whether the motives are illegal or not. I said, is it because I said something in November about his sexual harassment issues, is it because of the color of my skin, is it because he doesn't like me, and I said all these things to [Potter] direct. [Potter] said, you're raising a different issue now and it's not one that we address here.

Cornwell's provocative questions, viewed in the light most favorable to Cornwell in this summary judgment setting, fairly raised racial discrimination as an issue, and yet the summary judgment record does not show whether Potter or the Board of Directors...

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