Kitchen v. Wsco Petroleum Corp., CV-04-828-ST.

• Decision Date: 29 January 2007
• Docket Number: No. CV-04-828-ST.,CV-04-828-ST.
• Citation: 481 F.Supp.2d 1136
• Parties: Warren T. KITCHEN, Plaintiff, v. WSCO PETROLEUM CORP., dba Toad's, Defendant.
• Court: U.S. District Court — District of Oregon

Page 1136

481 F.Supp.2d 1136

Warren T. KITCHEN, Plaintiff, v. WSCO PETROLEUM CORP., dba Toad's, Defendant.

No. CV-04-828-ST.

United States District Court, D. Oregon.

January 29, 2007.

COPYRIGHT MATERIAL OMITTED

Craig A. Crispin, Crispin Employment Lawyers, Franklin G. Patrick, Frank G. Patrick & Associates, Portland, OR, for Plaintiff.

Mitchell C. Baker, Fisher & Phillips, LLP, Portland, OR, for Defendant.

OPINION

STEWART, Magistrate Judge.

INTRODUCTION

On February 16, 2005, plaintiff, Warren T. Kitchen ("Kitchen") filed a Third Amended Complaint, alleging the following claims against his former employer, WSCO Petroleum Corp. ("WSCO"):

First Claim: retaliation for opposition to unlawful employment practices in violation of the Anti-Retaliation Statute pursuant to Title VII of the Civil Rights Act of 1964, 42 USC § 2000e et seq;

Second Claim: failure to pay overtime wages and reimbursements in violation of ORS 652.150 and 652.200; and

Third Claim: prejudgment interest.

This court has jurisdiction over Kitchen's First Claim pursuant to 42 USC § 2000e and supplemental jurisdiction over the other claims pursuant to 28 USC § 1367. Both 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).

WSCO initially filed a Motion for Summary Judgment (docket # 40) against all claims on the basis of judicial estoppel, which the court denied by order dated January 13, 2005. Opinion and Order (docket # 85). WSCO then filed a Motion for Summary Judgment and Alternative Motions for Partial Summary Judgment (docket # 101). Kitchen abandoned the allegation that WSCO gave him negative employment references as an act of retaliation. On December 15, 2006, this court entered an Order denying WSCO's motion as to Kitchen's First Claim and granting that motion as to the Second Claim (docket # 119). This Opinion explains the reasons for that ruling.

FACTS

WSCO is an Oregon corporation that owns and operates almost 50 gas stations and convenience stores in Washington and Oregon. Looney Depo, pp. 18, 37. In 2002, WSCO employed more than 350 people in its retail locations and had a turnover rate of nearly 300%. Tish Decl., ¶ 3.

Kitchen commenced at-will employment with WSCO on or about September 23, 2002. Kitchen Depo, p. 17. WSCO hired Kitchen as a manager-in-training, with the intent that he would take over managing the Molalla store. Looney Depo, p. 41; McCarry Depo, p. 43; Kitchen Depo, p. 39. Jeff Sorn ("Sorn"), a WSCO station manager at the Tigard store, was assigned to train Kitchen on WSCO's paperwork, policies, and procedures. McCarry Depo, p. 44; Kitchen Depo, p. 40. Sorn was Kitchen's immediate supervisor, while Patrick McCarry ("McCarry") was the area supervisor and Sorn's superior. Kitchen Depo, pp. 42-44.

In October and November 2002, Kitchen observed Sorn physically and verbally harass two female employees, and received repeated complaints from one of them about Sorn's behavior. Kitchen Decl., ¶¶ 1-3. Kitchen told Sorn on several occasions that this was unacceptable behavior and must cease, but Sorn told him that he was not going to get into trouble because management "wouldn't believe the girls," that he had an "in" with the company and made them "too much money to let him go." Id at ¶ 4; Kitchen Depo, pp. 57, 60, 75, 80. For several days in October, Sorn asked Kitchen about details of his intimate relations with his wife. Kitchen Decl., ¶ 5. When Kitchen refused to discuss the subject, Sorn accused him of not being a team player and questioned how they could get along if Kitchen was not willing to discuss "guy things." Id. He also graphically described to Kitchen his sexual fantasies about another female employee until Kitchen told him to stop it. Id at ¶ 6. In another incident, Sorn told Kitchen he would use a pretext to "get rid of a female employee who had inquired about Sorn having sexual relations with another female employee. Id at ¶ 7. Although Kitchen objected to the retaliatory plan and so advised Sorn, the female employee was fired shortly thereafter. Id. Sorn also commented to Kitchen and others on several occasions that the "gals working in the store were little baby factories," which would make it easy "to get laid." Id at ¶ 8. Sorn also suggested to the women that doing sexual favors for him would be a good way to keep their jobs. Id.

Sorn directed Kitchen to drive him to and from work and threatened to fire him if he did not comply. Kitchen Depo, p. 165. He required Kitchen to shuttle him around Oregon City and Mollala even on Kitchen's days off. Id. at 166. Kitchen did not complain to WSCO management because he was worried that Sorn would terminate his employment, as he had threatened to do. Id.

During his employment with WSCO, Kitchen had several conversations with McCarry regarding his performance. Id at 46-49. About six weeks after Kitchen's start date, McCarry informed him that Sorn was not going to be at the store much longer and that Kitchen had to take over control of the store. Id. at 113-14. On another occasion, Kitchen solicited feedback on his performance from McCarry, and was told to learn the procedures at WSCO, to "keep improving, and, you'll be fine." Id. at 51. In another conversation, McCarry communicated to Kitchen that he wanted him to take more leadership at the store. Id. at 44. In response, Kitchen explained that he was taking all the leadership he could with Sorn making decisions, and that once Sorn was gone, he would certainly take more leadership. Id. at 45. McCarry replied: "Jeff [Sorn] is your boss, and you have to do what he says." Id. At an unidentified time, McCarry told Kitchen that his inventory and cash had "improved." Kitchen Decl., Exhibit B, p. 6.¹ At another time, Kitchen communicated to McGarry that he felt he had been set up for failure because Sorn had been with the company for so long. Kitchen Depo, p. 115.

In early December 2002, Kitchen complained to McCarry about Sorn's "crude and vulgar" sexual remarks towards female employees, stated that this behavior had to stop and may cost the company money from potential lawsuits, and asked McCarry to look into it. Id. at 63-66. McCarry thanked him for the information and said he would "look into it."' Id at 64.

In late November or early December, based on a discussion with McCarry, Looney determined that Kitchen was not capable of managing the Mollala store and decided to give him a position of less responsibility as the deli manager at the same location to see how he would perform. Looney Depo, p. 74; McCarry Depo, pp. 98-99. McCarry informed Kitchen of Looney's decision. McCarry Aff, ¶ 6; McCarry Depo, pp. 98-99; Kitchen Depo, pp. 53-54.² Kitchen understood this meant that he was no longer going to become the store manager. Kitchen Depo, P. 54.

After Kitchen complained to McCarry about Sorn, Kitchen's working relationship with Sorn worsened. Id at 75-85. Sorn threatened to get Kitchen fired (id at 75) and made it very clear that Kitchen's job was in Sorn's hands (id at 77).

On several occasions during Kitchen's employment, Eugene Tish ("Tish"), WSCO's Vice President, stopped by the Mollala store to observe the progress of some construction that was taking place. Tish Decl ¶ 4; Tish Depo, p. 8. During his visits, Tish was dissatisfied with the condition of the store and, based upon his observations, began to conclude that Kitchen did not possess the leadership skills, work skills, and work ethic to be successful at WSCO. Tish Depo, pp. 9-10, 15-16.

On Sunday, December 29, 2002, Tish stopped by the Mollala store to check on the progress of the construction and take some measurements. Tish Decl ¶ 5. Because the condition of the store was "gross," he personally started to clean it. Id. All of the employees working at the store, with the exception of Kitchen, eventually pitched in and worked hard to help him clean. Id. While Tish worked, Kitchen drank coffee and "watch[ed], stuff fry in the fryer." Id. at Exhibit 1. The next morning, on Monday, Tish instructed Looney to terminate Kitchen. Id.

On December 31, 2002, McCarry informed Kitchen that his employment was terminated because, "[t]he company has changed direction, and you're not part of it." Kitchen Depo, p. 106.³ When Kitchen asked him for further explanation, McCarry did not provide one. Id. Kitchen then asked him for a copy of his employee file. Id. at 110-11.

Just six days after Kitchen was terminated, a WSCO employee complained to her area supervisor, Kyle Krous ("Krous"), that she had been mistreated by Sorn. Looney Depo, pp. 23-24; Tish Depo, p. 35. Krous immediately reported the incident to Looney. Tish Depo, p. 35. Looney reported the complaint to Tish and then initiated an investigation into the allegations. Tish Depo, pp. 35-36. Looney scheduled an interview of the complainant, which Tish conducted the next day. Id at 35. During the course of the interview the complainant told Tish that another employee had also been mistreated by Sorn. Id at 35-36. Tish then interviewed her as well. Id.

On January 15, 2003, at the conclusion of the investigation, Tish found that Sorn had engaged in improper conduct with the two complaining employees. Id at 35-38. After receiving permission from WSCO's president, Tish then implemented severe disciplinary action against Sorn for his conduct, which included: (1) a Final Written Warning; (2) One Year Disciplinary Probation; (3) being relieved of his managerial position at the Tigard location; (4) being reassigned to a location not less than 10 miles away from the location from where the complaints arose; (5) completing eight hours of remedial coaching, including sexual harassment training, after which he was required to pass a verbal examination; (6) requiring that Sorn apologize to WSCO's president for his conduct and convince WSCO's president that his future conduct would be in accordance with WSCO's rules and...