Bahri v. Home Depot Usa, Inc.
| Citation | 242 F.Supp.2d 922 |
| Decision Date | 18 December 2002 |
| Docket Number | No. CV-00-1485-ST.,CV-00-1485-ST. |
| Parties | Sean BAHRI; Dan Florea; Barbara Nelson; Victor Roberge; Melvin Espen; William Toles; Daphne Dalthorp; and Stephen Galas, Plaintiffs, v. HOME DEPOT USA, INC., Defendant. |
| Court | U.S. District Court — District of Oregon |
Thomas M. Steenson, Steenson Schumann Tweksbury & Rose PC, Portland, OR, for Plaintiffs.
Plaintiffs, Sean Bahri ("Bahri"), Dan Florea ("Florea"), Barbara Nelson ("Nelson"), Victor Roberge ("Roberge"), Melvin Espen ("Espen"), William Toles ("Toles"), Daphne Dalthorp ("Dalthorp"), and Stephen Galas ("Galas"), are former employees of defendant, Home Depot USA, Inc. ("Home Depot"). All plaintiffs worked in Home Depot's store in Tigard, Oregon ("the Tigard store").1 They allege that after Scott Lundervold ("Lundervold") became the Store Manager of the Tigard store in July 1999, they were subjected to unlawful discrimination and retaliation based on their age and/or gender. The thrust of their allegations is that Lundervold sought to cut costs by eliminating older, higher paid workers. Plaintiffs allege that one of the Assistant Store Managers at the Tigard store, Robert Brownlie ("Brownlie"), shared Lundervold's desire to oust older workers and also subjected Nelson to gender-based harassment and discrimination, as explained in more detail below.2
On August 8, 2002, this court granted Dalthorp's Unopposed Motion to Dismiss (docket # 141) and dismissed her claims with prejudice. See Minute Order (docket # 142). In the Third Amended Complaint, all remaining plaintiffs allege a claim (First Claim for Relief) for age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 USC § 623(a) and ORS 659.030(1)(a) and (b).3 Plaintiff Nelson alleges a separate claim (Second Claim for Relief) for sexual harassment and sex discrimination under Title VII of the Civil Rights Act of 1965 ("Title VII"), 42 USC § 2000e-2 and ORS 659.030(1)(a) and (b). All remaining plaintiffs except Toles allege an additional claim (Third Claim for Relief) for retaliation in violation of ORS 659.030(1)(f) and the ADEA, 29 USC § 623(d), or Title VII, 42 USC § 2000e-3. Finally, all remaining plaintiffs except Espen4 and Toles allege a claim (Fourth Claim for Relief) for wrongful termination under Oregon law.5
This court has jurisdiction over plaintiffs' ADEA and Title VII claims pursuant to 28 USC § 1331, and supplemental jurisdiction over plaintiffs' state law claims under 28 USC § 1367(a). All parties have case in accordance with FRCP 73 and 28 USC § 636(c).
Home Depot filed motions for summary judgment against the claims of plaintiffs Bahri (docket #109), Florea (docket #105), Nelson (docket #101), Galas (docket # 113), Espen (docket # 150), and Roberge (docket # 154). On October 7, 2002, this court ruled on all of the above motions. See Order (docket # 201). This Opinion provides the reasons for those rulings.
Home Depot operates a number of home improvement stores in Oregon. This case involves allegations of age and gender discrimination and retaliation at the Tigard store. Four of the plaintiffs (Bahri, Florea, Nelson, and Galas) worked in the Kitchen and Bath ("K & B") Department in the Tigard store between August 1997 (Bahri Aff., ¶ 4) and December 2000 (Plaintiffs' Facts,6 ¶ D1 (Galas termination)). Espen worked at the Tigard store from March 1998 to April 2001, and was a sales associate in the Millworks department for all but the first five weeks of that time. Roberge worked in a variety of departments at the Tigard store between March 1997 and August 2000. Lundervold began working for Home Depot on May 23, 1994, and became the Store Manager of the Tigard store on July 1, 1999.
The parties have submitted detailed factual statements. However, plaintiffs have opposed virtually every fact in Home Depot's fact statements. Additionally, Home Depot in turn opposed and moved to strike virtually every statement in the affidavits supporting plaintiffs' fact statements, and plaintiffs moved to strike the Lundervold's affidavit7 filed on August 1, 2002. In previous Orders, this court ruled on the motions to strike portions of the affidavits of Bahri, Florea, Nelson, Galas, Robert Cozad, Don Gibson, Leo Jerman Roberge, and Espen, and allowed plaintiffs to file a surreply concerning the statistical evidence contained in the Lundervold Reply Affidavit. Opinions and Orders dated August 27, 2002 (docket # 158) and October 7, 2002 (docket # 200).
Because each plaintiff relies on evidence from other plaintiffs to support his or her claims, this court addresses that evidence below as it relates to each plaintiffs claims.
FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party does so, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id at 324, 106 S.Ct. 2548. The court does "not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial." Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir.1999). A "`scintilla of evidence,' or evidence that is `merely colorable' or `not significantly probative,' " does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert denied 493 U.S. 809, 110 S.Ct. 51, 107 L.Ed.2d 20 (1989) (emphasis in original) (citation omitted).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec, Contractors Ass'n, 809 F.2d 626, 631-32 (9th Cir.1987). The court must view the inferences drawn from the facts "in the light most favorable to the nonmoving party." Id at 631 (citation omitted). Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id at 630-31. However, when the non-moving party's claims are factually "implausible, that party must come forward with more persuasive evidence than would otherwise be [required] ...." California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987), cert denied 484 U.S. 1006, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988) (emphasis in original) (citation omitted). The Ninth Circuit has found, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id.
Each of the seven plaintiffs alleges a claim for age discrimination in violation of the ADEA and ORS Chapter 659. For the reasons that follow, each of Home Depot's motions for summary judgment against the First Claim are denied.
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 USC § 623(a)(1). Protection under the ADEA extends to all individuals who are at least 40 years old. 29 USC § 631(a). Oregon law also prohibits age discrimination, but extends protection to individuals over the age of 18. ORS 659.030(1)(a) & (b).
The Ninth Circuit analyzes ADEA cases using the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141-42, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir.1996), cert denied 522 U.S. 950, 118 S.Ct. 369, 139 L.Ed.2d 287 (1997). Under the three-part methodology articulated in McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination. The burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. The plaintiff is then afforded an opportunity to demonstrate that the employer's proffered reason was pretextual, "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ("Burdine ").
Although Oregon courts analyzing claims under ORS Chapter 659 have rejected the McDonnell Douglas burdenshifting approach, Callan v. Confederation of Oregon Sch. Adm., 79 Or.App. 73, 717 P.2d 1252 (1986), that approach nonetheless applies to the assessment of Oregon employment discrimination claims brought in federal court. Snead v. Metropolitan Prop. & Cos. Ins. Co., 237 F.3d 1080 (9th Cir.), cert denied 534 U.S. 888, 122 S.Ct. 201, 151 L.Ed.2d 142 (2001); Williams v. Federal Express Corp., 211 F Supp 2d 1257, 1261 (D.Or.2002).
Numerous cases require a plaintiff to establish a prima facie case of disparate treatment discrimination by showing that he or she: (1) belonged to a protected class; (2) was satisfactorily performing his or her job or was qualified for hire; (3) was terminated, rejected for employment, or otherwise subjected to an adverse employment action; (4) which took place under circumstances giving rise to an inference of unlawful discrimination. See, e.g., O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13,116 S.Ct. 1307, 134 L.Ed.2d 433 (1996); McDonnell...
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