Delima v. Home Depot U.S.A., Inc., Civil No. 06-328-JE.

• Decision Date: 23 April 2008
• Docket Number: Civil No. 06-328-JE.
• Citation: 616 F.Supp.2d 1055
• Parties: Nancy DELIMA, Plaintiff, v. HOME DEPOT U.S.A., INC., doing business as The Home Depot, Defendant.
• Court: U.S. District Court — District of Oregon

616 F.Supp.2d 1055

Nancy DELIMA, Plaintiff, v. HOME DEPOT U.S.A., INC., doing business as The Home Depot, Defendant.

Civil No. 06-328-JE.

United States District Court, D. Oregon.

April 23, 2008.

Craig A. Crispin, Patty T. Rissberger, Portland, OR, for Plaintiff.

Paul M. Ostroff, Leah C. Lively, Eric D. Wilson, Lane Powell PC, Portland, OR, D. Michael Reilly, Lane Powell PC, Seattle, WA, for Defendant.

ORDER

HAGGERTY, Chief Judge.

Magistrate Judge Jelderks issued a Findings and Recommendation (F & R) [111] in this action, recommending that defendant's motion for summary judgment [52] should be GRANTED in part and DENIED in part, GRANTING plaintiff's motion to strike [72] and GRANTING in part and DENYING in part defendant's motions to strike [88, 104]. On March 31, 2008, the matter was referred to this court. When a party objects to any portion of a Findings and Recommendation, the district court must conduct a de novo review of that Findings and Recommendation. 28 U.S.C. § 636(b)(1)(B); McDonnell Douglas Corp. v. Commodore Bus. Mach. Inc., 656 F.2d 1309, 1313 (9th Cir.1981).

The Findings and Recommendation provided a thorough analysis of the facts. This factual analysis is not objected to by petitioner, and need not be repeated here.

Defendant makes two objections to the F & R. First, defendant argues that plaintiff's wage claim pursuant to O.R.S. § 652.220 is time-barred. Second, defendant argues that plaintiff's Title VII wage claim is time-barred.

In finding that plaintiff's state wage claim pursuant to O.R.S. § 652.220 was not time-barred, the F & R concluded that the statute of limitations under O.R.S. § 659A was applicable, and therefore plaintiff could recover under Oregon statutes for any unlawful discrimination on her compensation after December 10, 2003 (one year prior to the filing of her BOLI complaint). Defendant objects, and argues that O.R.S. § 652.230 contains the relevant statute of limitations. O.R.S. § 652.230 provides:

(1) Any employee whose compensation is at a rate that is in violation of ORS 652.220 shall have a right of action against the employer for the recovery of: (a) The amount of unpaid wages to which the employee is entitled for the one year period preceding the commencement of the action; and [liquidated damages and attorney's fees].

O.R.S. § 652.230. Instead of creating a separate statute of limitations for claims brought pursuant to O.R.S. § 652.220, however, O.R.S. § 652.230 merely places a limitation on the period for which damages may be recovered. This court adopts the conclusion of the F & R and finds that plaintiff's claim under O.R. S. § 652.220 is not time-barred.

Defendant argues that plaintiff's Title VII wage claim is barred under Ledbetter v. Goodyear Tire & Rubber Co., ___ U.S. ___, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007). On this issue, the F & R found that:

though the applicable statute of limitations precludes plaintiff's recovery under Title VII for any pay decisions implemented before February 13, 2004, [defendant's] motion for summary judgment on plaintiff's Title VII pay claim should be denied because material issues of fact exist as to whether pay raises [defendant] implemented for any similarly situated male employees after that date reflected discrimination in favor of that male employee.

F & R p. 46. Defendant asserts that the F & R erred by holding that pay raises awarded to other employers restarted the 300-day statute of limitations on her Title VII wage claim. This court agrees with the F & R's conclusion that "there is nothing in the Ledbetter decision that precludes the statute of limitations from starting to run again if the employer subsequently discriminates, on the basis of gender, in establishing or raising the pay of another employee." F & R p. 46.

The court has given the file of this case a de novo review, and has also carefully evaluated the Findings and Recommendation, the objections, and the entire Record. The Judge's reasoning and recommendations are sound, correct, and entitled to adoption.

CONCLUSION

This court adopts the F & R[111]. Accordingly, defendant's motion for summary judgment [52] is GRANTED in part, and DENIED in part, as set forth in the F & R.

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATION

JELDERKS, United States Magistrate Judge:

Plaintiff Nancy Delima brings this employment related action against defendant Home Depot U.S.A., Inc., dba the Home Depot (Home Depot). Defendant Home Depot moves for summary judgment, and both parties move to strike certain material related to that motion. Defendant's motion for summary judgment should be granted in part and denied in part as set out below. Plaintiff's motion to strike is granted, and defendant's motion to strike is granted in part and denied in part as discussed below.

FACTUAL BACKGROUND

On August 25, 2001, defendant Home Depot hired plaintiff Delima to work as a night freight associate at its store in Troutdale, Oregon. In that position, plaintiff was paid $10.00 per hour and worked on a team that received freight, stocked shelves, and prepared the store to do business on the following day.

During her first week on the job, plaintiff received a "new employee" orientation package which included defendant Home Depot's policy prohibiting harassment and discrimination, and instructions to report inappropriate conduct. Plaintiff also received training on Home Depot's safety policies, and was told that she would be warned or terminated if she violated those policies. The policies included a "banner barricade" policy requiring employees to use barricades to block customers or employees from entering aisles where pallets of merchandise are being placed overhead, and a policy prohibiting the use of a "rabbit button" that increases the speed of certain equipment.

Home Depot's "Code of Conduct" sets out guidelines for disciplining employees for safety violations, and states that managers who fail to enforce its provisions may be terminated. Plaintiff knew that supervisors could be held responsible for safety violations committed by associates.

Rick Baird worked as the Troutdale Home Depot Human Resources Manager (HR Manager) from August, 2002, until April, 2004. In that position, Baird was responsible for setting the pay rate for new employees at the Troutdale store. Pay rates were set within ranges for various positions. According to his deposition testimony, in setting an employee's pay, Baird considered the new employee's existing skills, training, and experience, prior pay history, the pay of existing employees who held the same position, the rate of pay requested by the new employee, and the urgency of filling the position.

In January, 2002, Home Depot adopted written Pay Administration Guidelines concerning wage policies and practices. Home Depot determines pay increases based upon written performance reviews prepared by an employee's supervisor. The reviews include narrative evaluations and rate "overall performance" on a scale ranging from "outstanding" to "improvement required"; rate "leadership" from "exemplary" to "deficient"; and rate "potential" from "high" to "placement issue." Employees receive two written performance evaluations a year, and are considered for pay raises every February, based upon those reviews.

When Home Depot employees transfer from one store to another in Oregon, they are generally paid at the same rate as they earned at the store from which they transferred.

When a Home Depot employee is promoted, the new wage rate is based upon the employee's current pay, job experience, skill and knowledge, and documented performance. Pay increases for promotions generally range from 6% to 12%.¹

Before she began working for Home Depot, plaintiff worked for Hollywood Video from 1990 until 1994. She earned $9.23 per hour in that position. She next worked for Target as a stocker for 13 months beginning in August, 1995. Plaintiff earned $6.75 per hour in that position. After that, plaintiff did not work outside the home until she was hired by Home Depot in August, 2001.

When she filled out an application to work for Home Depot, plaintiff did not indicate what rate of pay she desired, because she intended to negotiate her starting wage. Plaintiff was told that the night freight position she accepted would require her to operate "heavy" equipment², and that the starting rate of pay would be around $10 per hour. Plaintiff had not operated heavy equipment before, and was trained and licensed to operate this equipment within the first week of her employment.

Plaintiff received a generally positive performance review on October 5, 2002, and received a $.65 per hour raise two days later. According to her affidavit submitted in support of her opposition to the motion for summary judgment, plaintiff was satisfied with that raise because Home Depot managers misrepresented that the greatest raise for any Home Depot associate was $.75 per hour.

Home Depot hired Ross Sears, a male employee, within a few days of hiring plaintiff. Both plaintiff and Sears were paid $10.00 per hour initially. In October, 2002, when plaintiff's pay was increased to $10.65 per hour, Sears' pay was increased to $11.50 per hour.

On November 19, 2002, Baird promoted plaintiff to the night freight team supervisor position and increased plaintiff's pay to $12.00 per hour. This amounted to a 12.67% raise. Plaintiff's supervisor recommended the promotion.

In her position as night freight supervisor, plaintiff was responsible for scheduling associates, drafting performance summaries, disciplining associates who violated safety policies, scheduling freight deliveries and signing for goods, ensuring that freight was unloaded and that overstocked merchandise was stored overhead, and for having the store clean by the time it opened.

On February 3, 2003, plaintiff's pay was increased from $12.00 per hour to $12.75 per hour. At the time of the raise, plaintiff received a...