Hess v. Multnomah County, No. CIV-00-1483-ST.

• Decision Date: 07 December 2001
• Docket Number: No. CIV-00-1483-ST.
• Citation: 216 F.Supp.2d 1140
• Parties: Carolina HESS, Plaintiff, v. MULTNOMAH COUNTY and Bonnie Teschner, Defendants.
• Court: U.S. District Court — District of Oregon

216 F.Supp.2d 1140

Carolina HESS, Plaintiff, v. MULTNOMAH COUNTY and Bonnie Teschner, Defendants.

No. CIV-00-1483-ST.

United States District Court, D. Oregon.

December 7, 2001.

Thomas M. Steenson, Steenson Schumann Tewksbury & Rose, PC, Portland, OR, for plaintiff.

OPINION AND ORDER

STEWART, United States Magistrate Judge.

INTRODUCTION

Plaintiff, Carolina Hess ("Hess"), filed this action on November 1, 2000, alleging that her former employer, Multnomah County, and her former supervisor, Bonnie Teschner ("Teschner"), constructively terminated her because she is Hispanic and female. The Second Claim for Relief alleging gender discrimination has been dismissed (docket # 23). The remaining First Claim for Relief alleges race discrimination "including the creation of a hostile work environment," in violation of Title VII of the Civil Rights Act of 1964, 42 USC § 2000e, et seq ("Title VII"), 42 USC § 1983, and ORS 659.030(1)(a) and (b).

This court has federal question jurisdiction under 28 USC § 1331. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c).

Defendants' Motion for Summary Judgment (docket # 25) is now before the court. For the reasons that follow, the motion is granted in part and denied in part.

LEGAL STANDARDS

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 must "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).

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 (9th Cir.1987). The court must view the inferences drawn from the facts in the light most favorable to the non-moving party. 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). 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.

The Ninth Circuit has set a high standard for granting summary judgment in employment discrimination cases. "[W]e require very little evidence to survive summary judgment in a discrimination case, because the ultimate question is one that can only be resolved through a searching inquiry—one that is most appropriately conducted by the factfinder, upon a full record." Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir.) (internal citations and quotations omitted), cert denied, 519 U.S. 927, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996).

FACTS

Because all material facts must be viewed in the light most favorable to the non-movant, this court will view the evidence in the light most favorable to Hess. A review of the parties' facts, as well as the other materials submitted by the parties, including affidavits, declarations, and deposition excerpts,¹ reveal the following facts.

I. Hess's General Background

Hess is Hispanic; she was born in Mexico and lived there until she was 20. Hess Dec (Pltf's Ex L), ¶ 2. She received an Associate's Degree in Dental Assisting in 1977, a Bachelor's Degree in Education in 1983, and held various positions teaching Spanish from 1984-1989. Id., ¶¶ 3-4. Hess is active in the community, particularly regarding cultural issues. Id., ¶ 5.

II. Multnomah County Health Department

On June 5, 1989, Hess began working part-time as a Health Information Specialist ("Specialist") for the Multnomah County Health Department in the Information and Referral Unit ("I & R"). Id., ¶ 6. Specialists access a computer database to provide callers with referrals on health programs and related information, translate for non-English speaking clients, and collect and input information for the data-base. Teschner Aff (Defs' Ex. 1), ¶¶ 5-6.

In 1994, Hess's position became full-time and until 1996, she was the only full-time bilingual Spanish speaking I & R Specialist. Hess Dec, ¶¶ 6-7. For the last several years of her employment, she was the most senior I & R Specialist and often trained new Specialists. Id., ¶¶ 8, 10. She was also assigned special tasks and provided emergency translations. Id., ¶ 8.

In 1996, Bonnie Teschner ("Teschner"), who is Caucasian, became supervisor of I & R and Oregon SafeNet, a second unit that provides similar services. Teschner Aff, ¶ 2. She directed and controlled the day-to-day activities of the units by setting work schedules, assigning work, authorizing training, and preparing formal performance evaluations. Hess Dec, ¶ 13. Teschner considers herself to be a midmanager with limited authority to discipline her subordinates. Teschner Depo (Pltf's Ex K), pp. 65-66.

A. Evaluations

During Hess's tenure, the Director of Multnomah County Health Department, other county employees and community members acknowledged their appreciation of her employment contributions. Hess Dec, ¶ 10. Before becoming Hess's supervisor in 1996, Teschner had heard only good things about Hess. Teschner Depo, pp. 11-12.

From 1989-1996, prior to Teschner's becoming her supervisor, Hess's performance evaluations were either "exceeds expectations" or "outstanding." Pltf's Exs Q-T. In 1996, Teschner lowered Hess's performance evaluation and initially intended to rate her as "meets expectations" or "exceeds expectations." Id., Ex U. After Hess protested, Teschner agreed to upgrade four portions of the evaluation and included two "outstanding" ratings, with an overall rating of "outstanding." Id., Exs U, V; Hess Dec ¶ 14. Teschner believes a subsequent change in the final evaluation was a typographical error. Teschner 2nd Aff (Defs' Ex. 31), ¶ 7. Regardless, Hess acknowledged it and attached a disagreement letter. Pltf's Ex. V.

Teschner was on medical leave from about January 1999 through September 1999, returned part-time until approximately December 1999, and resumed full-time thereafter. Hess Dec, ¶ 17(r). In March 1999, during Teschner's absence, acting supervisor Lisa Simpson ("Simpson") rated Hess as "outstanding." Pltf's Ex W. Hess felt that Simpson was "respectful and accommodating, which was completely different from the way Ms. Teschner treated [her]." Hess Dec, ¶ 17(r).

B. Discipline

Hess was never formally disciplined or reprimanded. Teschner 2nd Aff, ¶ 18. However, on several occasions, Hess felt she was being reprimanded. Hess Dec, ¶ 15.

1. Dental Clinic Incident

On April 23 1996, Dental Clinic Manager Dr. Craig Baumeister wrote to Hess in response to a comment that Hess made with respect to the dental clinic's inappropriate treatment of pulling teeth instead of providing fillings. Defs' Ex 3. A copy of this letter was sent to Valerie Whelan ("Whelan"), Teschner's supervisor, and the SE Dental Staff. Id. Since Hess felt she did not have the opportunity to explain herself, Hess obtained permission from Teschner to meet with Dave Houghton ("Houghton"), a Cross-Cultural Committee member, the following day at 8:00 a.m. Hess Dec, ¶ 17(b). Houghton was delayed and, with Teschner's permission, Hess met with him later. Id. Because Hess left at a time that Teschner felt she had not approved, Teschner so advised Hess and on April 29, 1996, sent a memorandum to all of the Specialists, detailing and reminding them to follow the "absence procedure" when leaving the phones unattended. Id., ¶ 17(c); Teschner Dec, ¶ 11; Defs' Ex 9.

On June 13, 1996, Teschner, Dr. Baumeister, Jim Younger, and Hess met to discuss the alleged incident. Hess Dec, ¶ 17(e). Hess felt Teschner was accusatory and unsupportive, but ultimately the matter was dropped. Id.; Teschner Aff, ¶ 11.

2. Letters of Support

On May 1, 1996, Teschner emailed all the Specialists advising that performance evaluations would include input from third parties. Defs' Ex 11. In response, Hess gave Teschner a list of persons and agencies she regularly served. Hess Dec, ¶ 17(d). Within two-and-a-half months, Teschner received at least 10 letters commending Hess's work at Multnomah County. Pltf's Ex Y. Teschner told Hess that she was surprised that so many people would write letters on Hess's behalf, and used them only for the "interpersonal relations" category, for which Hess received an "outstanding" rating. Hess Dec, ¶ 17(d); Teschner Aff, ¶ 112; Pltf's Ex V, p. 1.

3. Voice Mail

To ensure that voice mail messages were clear and specific, Teschner occasionally asked employees to listen to and change messages of absent employees. Teschner Aff, ¶ 13. On November 25, 1996, Teschner instructed a bilingual Caucasian co-worker, Bobbie Bowman ("Bowman"), to change Hess's voice mail message that was in Spanish and English because Teschner did not understand it. Hess Dec, ¶ 17(f). The initial message was left in a manner Hess was previously instructed to use, indicating that...