Jamal v. Wilshire Management Leasing Corp.

Decision Date10 June 2004
Docket NumberNo. CV 03-0009-RE.,CV 03-0009-RE.
Citation320 F.Supp.2d 1060
PartiesKathleen JAMAL, Plaintiff, v. WILSHIRE MANAGEMENT LEASING CORPORATION, Defendant.
CourtU.S. District Court — District of Oregon

Tom Steenson, Zan Tewksbury, Portland, OR, for Plaintiff.

Chris Kitchel, Clarence M. Belnavis, Kurt E. Barker, Portland, OR, for Defendant.

OPINION AND ORDER

REDDEN, District Judge.

The matters before the court are (1) Wilshire Management Leasing Corporation's motion for summary judgment on all of Kathleen Jamal's claims; (2) Jamal's motion for summary judgment on Wilshire's counterclaim for breach of Jamal's confidentiality agreement; and (3) Wilshire's motion to strike the declarations of Pat Stoneking and Janice White that Jamal submitted in opposition to Wilshire's motion. Oral argument was held May 28, 2004.

The Lawsuit

Jamal's first amended complaint alleges four claims:

A. Age Discrimination.

Jamal alleges Wilshire violated her rights under the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a), and Or.Rev.Stat. § 659.030(1)(a) and (b).

B. Retaliation.

Jamal alleges Wilshire retaliated against her in violation of the ADEA, Title VII (42 U.S.C. § 2000e), and state statutory law because she complained of age discrimination against her and race discrimination against others.

C. Hostile Work Environment.

Jamal alleges she was subjected to a hostile work environment based on age discrimination in violation of the ADEA, Title VII, and state statutory law.

D. Wrongful Constructive Discharge.

Jamal alleges she was constructively discharged in September 2001, in violation of her rights under state law.

Background

Wilshire is a Portland-based loan servicing organization that manages residential and commercial assets. In October 1996, Wilshire hired Laurie Magee as manager of loan recovery, and later promoted her to vice president of its default management department.

In November 1996, Wilshire hired Jamal for the non-management position of special assets account officer in loan recovery, a subdepartment of the default management department. Jamal had extensive experience working in the financial service industry. Jamal started reporting directly to Magee shortly thereafter. Jamal was then 46 years old and Magee was 33.

A month later, in December 1996, Magee promoted plaintiff to a team lead position in loan workout (LWO) (another subdepartment within the default management department). Jamal received a $7,000 pay increase. Magee highly rated Jamal's performance in a February 1997 review. At her October 1997 annual review, Magee again highly rated Jamal's performance, and she received an additional $5,000 raise in salary.

In January 1998, Magee promoted Jamal to LWO manager. Jamal asserts in the material she filed with the court that she did an excellent job in this position, but Wilshire asserts Jamal did not perform well as a manager and as early as April 1998, Magee began expressing her concerns.1

In 1998, Wilshire experienced financial problems that culminated in bankruptcy for its parent company. Wilshire asserts that in October and November 1998, the problems forced it to reduce staff and reorganize several of its departments. Wilshire eliminated the LWO manager position and transferred Jamal to work as an assistant project manager, reporting to Debbie Hart, the project manager. Jamal contends the new position was not a management position — she says she did not supervise any employees again until April 2001. Wilshire says it was a management position. In any event, Jamal asserts the elimination of her position and her transfer were based on age discrimination.2 It appears that some of the duties of an LWO manager position later may have been given to other employees during Jamal's tenure with Wilshire, but it also appears that the position itself was not reinstated until after Jamal had left Wilshire.

Jamal alleges that beginning in 1998, she began to experience age discrimination from Magee. Her numerous allegations are set out throughout this opinion.

In August 1999, Magee gave plaintiff an "acceptable" performance evaluation for the year November 1997 through November 1998.3 Magee praised aspects of Jamal's performance, but also noted several concerns regarding Jamal's performance as a manager. In March 2000, Hart, Jamal's new supervisor, gave Jamal a "commendable" performance evaluation for the year November 1998 through November 1999. Hart praised Jamal but, as Magee had, noted problems with Jamal's management performance. Hart and Magee approved another raise for Jamal of almost $5,000.

In early 2000, Jamal approached Wilshire's President and CEO Jay Memmott about an opening for a vice president-level position. She decided not to apply when she learned the position involved working with Magee. When Memmott asked Jamal why working with Magee might be a problem, Jamal declined to explain.

In June 2000, Jamal met with Memmott and told him she and other anonymous employees thought Magee was a bad manager. Jamal admitted in her deposition she did not mention age discrimination to Memmott at that time or in the investigation that followed. See, e.g., Jamal Depo., 28:06-29:22. Further, Wilshire says Jamal kept two detailed sets of notes regarding her complaints to Memmott and nowhere in either set of notes does she mention age discrimination, even though she testified at deposition she tried to make those notes inclusive of all issues she discussed with him.

In any event, at the time of that meeting with Memmott, Jamal says, in the material she filed with the court, she made the following complaints about Magee:

(1) Magee's 1998 removal of Jamal from her LWO manager position and her failure to restore the position when Wilshire's financial situation improved.

(2) Magee's threats to fire Jamal and others, such as Jan Haskin.

(3) Magee's favoritism toward other employees, including allowing them to telecommute but not allowing Jamal to do the same.

(4) Magee's lack of respect during meetings and failure to meet with Jamal, or making her wait for long periods of time outside her office while she chatted on the phone or in person with friends.

(5) Magee's comment that Phil Vincent (Wilshire's vice president) would always protect her job and Magee's bragging about being Vincent's lover.

(6) Magee going into Haskin's drawer and holding up pain pills in front of everyone and saying "if you were better organized, you wouldn't need these."

(7) The insubordination of Ben Estep and Magee's failure to do anything when Jamal complained to her.

(8) Magee's offensive and humiliating conduct at work-related functions, such as in 1999 requiring a male employee to take a "body shot" off of Jamal's chest, and grabbing Jamal's shirt open in public in front of male employees.

(9) Magee's racially offensive comment during a meeting with Jamal and Anne Halverson (an African-American co-worker) regarding "half-breed children" when both Jamal and Halverson were in mixed-race marriages.

Jamal's Concise Statement of Material Facts (CSMF), pp. 8-9.

Wilshire's Human Resources Department (HR) immediately began an investigation into Jamal's and the other employees' concerns. Over the next two months, HR interviewed more than a dozen employees, including nearly every person in Magee's department. HR interviewed Jamal, and Jamal confirmed at deposition she talked primarily of her concerns that her management duties had been reduced and her position as the LWO manager had been lost. Jamal also told HR that Magee had poor administrative skills with direct reports, showed favoritism toward those who did not challenge her views, was a negative person, and overall had a bad management style. Several persons (men, women, African Americans, Caucasians and people both over and under 40) interviewed by HR voiced similar concerns about Magee's management style. Wilshire placed Magee on a detailed performance improvement plan. It hired an outside consultant, Ken Hill, to help Magee make constructive changes to her management style.4

Jamal alleges that after she complained to Memmott about Magee in June 2000, Magee began to retaliate against her and continued to discriminate against her.

In late June 2000, Magee promoted Caren Brown, who was younger than Jamal, to the position of bankruptcy manager. Jamal asserts the position was not posted internally and that she was more qualified for the promotion than Brown.

Jamal also specifically lists in the material filed with the court the following complaints that began after her June 2000 complaint to Memmott:

(a) In September or October 2000, in order to get her in trouble in retaliation for her complaints, Magee caused another employee to make a complaint to HR about Jamal checking her department's accounts. When it was discovered Magee had requested Jamal to check, Magee did nothing to support Jamal.

(b) In an October 2000 staff meeting, Magee "loudly and rudely" contradicted Jamal regarding her interpretation of a particular state's foreclosure laws. Even after it became clear that Jamal was right, Magee refused to apologize to her. Jamal felt "humiliated and degraded" because her competence was attacked without justification.

(c) In October 2000, Jamal was called into HR and presented with a host of criticisms of her job performance that originated with Magee. Jamal asserts that after she rebutted each false accusation and informed HR she was "contemplating seeking legal representation because of the harassment and retaliation she was being subjected to," Susan Christian of Wilshire's HR department stated that maybe Jamal should just quit her job or transfer to another building.5

(d) In December 2000, Magee asked Memmott for a $500 reduction in Jamal's bonus, claiming in writing that Jamal was less valuable and more replaceable than her younger peer Estep (a personal friend of Magee's) and that Estep be given the $500 difference as...

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