Whitley v. City of Portland, Civil No. 07-1114-AC.

• Decision Date: 12 August 2009
• Docket Number: Civil No. 07-1114-AC.
• Parties: Nicole WHITLEY, Plaintiff, v. The CITY OF PORTLAND, and Robert Day, in his individual capacity as a police officer for the Portland Police Bureau, Defendants.
• Court: U.S. District Court — District of Oregon

654 F.Supp.2d 1194

Nicole WHITLEY, Plaintiff, v. The CITY OF PORTLAND, and Robert Day, in his individual capacity as a police officer for the Portland Police Bureau, Defendants.

Civil No. 07-1114-AC.

United States District Court, D. Oregon.

August 12, 2009.

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Katelyn S. Oldham, Oldham Law Office, Portland, OR, for Plaintiff.

Jenifer M. Johnston, City Attorney's Office, Portland, OR, for Defendants.

ORDER

MARSH, District Judge.

Magistrate Judge John V. Acosta filed his Findings and Recommendation (# 171) on May 20, 2009. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of the Magistrate's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate's report. See 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir.1981), cert. denied, 455 U.S. 920, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982).

Plaintiff timely filed numerous objections to portions of the Findings and Recommendation. Defendants timely filed a response objecting to the Magistrate's determination that an issue of fact prevents summary judgment on plaintiff's retaliation claims under Title VII and Or.Rev. Stat. 659A.030(1)(f). Therefore, I have conducted a de novo review of this case. Having thoroughly examined the parties' lengthy objections, I conclude that they are without merit and I find no error.

Accordingly, I ADOPT the Findings and Recommendation (# 171) of Magistrate Judge John V. Acosta.

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATION

ACOSTA, United States Magistrate Judge:

Findings and Recommendation

Defendants the City of Portland ("City") and Sergeant Robert Day ("Sgt. Day") move for summary judgment on all of plaintiff Nicole Whitley's ("Whitley") claims: (1) gender discrimination; (2) retaliation; (3) wrongful discharge; and (4) equal protection. First, Whitley alleges that the City treated her differently than similarly situated male employees, and that her gender impacted the City's decision to terminate her employment, which was in violation of Title VII and OR.REV. STAT. 659A.030(1)(a) and (b). (Pl.'s Mem. in Opp. 1.) Second, Whitley claims that she was terminated by the City because she reported inappropriate and sexually harassing behavior, and that such a termination is retaliatory under Title VII and OR.REV.STAT. 659A.030(1)(f), and is a violation of OR.REV.STAT. 659A.203. (Pl.'s Mem. in Opp. 1.) Third, Whitley alleges that her termination gives rise to a common law wrongful discharge claim either due to her reports of gender discrimination and retaliation or because she used the City's disability insurance system. (Pl.'s Mem. in Opp. 1.) Finally, Whitley alleges that Sgt. Day denied her equal protection of the law in violation of 42 U.S.C. § 1983. (Pl.'s Mem. in Opp. 1.) For the following reasons, the City's motion for summary judgment on Whitley's gender discrimination claims should be granted, the City's motion for summary judgment on Whitley's retaliation and whistleblower claims should be denied, the City's motion for summary judgment on Whitley's wrongful discharge claim should be granted, and Sgt. Day's motion for summary judgment on Whitley's equal protection claim should be granted.

Factual Background

A. Whitley's Training Experience

The Portland Police Bureau ("Bureau") hired Whitley on October 20, 2005. (Babnick Aff.¹ Ex. 3 at 1.) On January 9, 2006, Whitley went to the Department of Public Safety Standards and Training Basic Academy (the "Academy") to begin basic police training. (Babnick Aff. Ex. 3 at 1.) Whitley received five hours of orientation training at the Academy and received the Student Conduct Guide (the "Guide"). (Babnick Aff. Ex. 3 at 1; Johnston Am. Aff. Ex. 5.) Whitley signed a statement to "attest that I have read, understood and subscribe to the Student Conduct Guide." (Johnston Am. Aff. Ex. 5.) The Guide sets forth four standards of conduct relevant to these motions. First, it explains that the Academy has "Zero Tolerance" for "[d]ishonesty, lying or attempting to conceal violations." (Johnston Am. Aff. Ex. 4 at 2.) A violation of this policy will result in "[i]mmediate and appropriate corrective action by Academy staff who will do what is necessary to prevent recurrence of the misconduct." (Johnston Am. Aff. Ex. 4 at 2.) Second, the Guide states that the "minimum passing score for all written examinations is 75%." (Johnston Am. Aff. Ex. 4 at 3.) Third, "[s]tudents are required to attend all scheduled Academy classes," and students are "responsible for notifying their agency supervisor in advance of any absence." (Johnston Am. Aff. Ex. 4 at 3.) "Any unauthorized absence may result in dismissal from the Academy." (Johnston Am. Aff. Ex. 4 at 3.) Finally, "[s]tudents are expected to be seated in the classroom 5 minutes prior to the start of each class. Tardiness demonstrates disrespect and is unacceptable." (Johnston Am. Aff. Ex. 4 at 3.) Importantly, the Department of Public Safety Standards and Training ("DPSST") sets the standards and training requirements for police officers. OR.REV. STAT. 181.640. Under Oregon law, a police officer who does not successfully complete the Academy cannot work as a police officer. OR.REV.STAT. 181.655(1)(b).

In January of 2006, Whitley began demonstrating performance deficiencies in basic training at the Academy. On January 18, 2006, Whitley failed to shoot qualifying scores on day three of handgun firearms training. (Babnick Aff. Ex. 7.) On January 24, 2006, Whitley failed shotgun firearms training because she was "unable to demonstrate basic proficiencies in manipulating, shooting, and the safe handling of the shotgun." (Babnick Aff. Exs. 8, 9.) When Lieutenant Raymond Rau ("Lt. Rau"), Whitley's supervising training coordinator at the Academy, reported Whitley's firearm deficiencies to Sgt. Day, he indicated that it "wasn't a big issue" and that the Bureau could just "remead [her] up there and tell me [she's] good." (Babnick Aff. Ex. 3 at 2; Oldham Dec. Ex. 6 at 3-4.)

On February 1, 2006, Lt. Rau called Whitley out of class and into a meeting. (Whitley Dep. 23:12-14.) During the meeting, Lt. Rau informed Whitley "that an instructor at EVOC ([Emergency Vehicle Operation Course]) was offended because [Whitley's] nipples were showing through [her] shirt." (Whitley Dep. 23:23-25.) Lt. Rau asked Whitley what she was wearing, if she was wearing a jogging bra, and if she had a bra. (Whitley Dep. 23:25-24:2) Lt. Rau then suggested that Whitley try "maybe some type of layering" to deal with the issue. (Oldham Decl. Ex. 6 at 9.) Whitley was in shock, was "blown away," and did not know how to respond to Lt. Rau's comments. (Whitley Dep. 24:28-19.) She could not believe that she was being asked these questions; she felt uncomfortable and that she was being singled out. (Whitley Dep. 24:20-23.)

Whitley described her meeting and conversation with Lt. Rau to Field Training Officer Joe Schilling ("Officer Schilling") on February 2, 2006. (Schilling Dep. 129:15-16.) Officer Schilling "immediately" reported his conversation with Whitley to Sgt. Day because it "was a significant event at the [A]cademy for one of [the] probationary officers, and part of [his] job description is to convey those things along to [his] superior officer." (Schilling Dep. 135:25; 136:11-15.) In a inter-office memorandum from Officer Schilling to Sgt. Day dated February 2, 2006, Officer Schilling explained that Whitley told him she "felt `singled-out' by Lt. Rau, was offended by having someone talk to her about her breasts and was now self-conscious around the instructor staff. [She] further offered that she felt like wearing her jacket all the time." (Oldham Decl. Ex. 18.)

On the evening of February 2, 2006, Sgt. Day and Whitley had a conversation in which they discussed Whitley's February 1 conversation with Lt. Rau. (Oldham Decl. Ex. 23.) Whitley expressed concerns that she had offended an instructor, was being singled out and would face problems in the future. By the end of February 3, 2006, and after various conversations between Whitley, Sgt. Day, and Lt. Rau, Whitley reported that while she still did not like the fact that the conversation occurred, she felt much better about the situation and that DPSST had resolved the matter. (Oldham Decl. Ex. 23.) Specifically, in her conversations with Sgt. Day, Whitley stated that she did not want to make a complaint about her meeting with Lt. Rau, but that Lt. Rau's statements "shouldn't have been said." (Whitley Dep. 107:3-6); (Whitley Dep. 107:3-6; Day Aff. Ex. 28 at 2.) She also expressed concern that she would be "singled out." (Day Aff. Ex. 28 at 2.) Sgt. Day asked Whitley if there was "anything else [she would] like from [him] or the Bureau, or from DPSST" or whether she felt like they had "come to a resolution. . . ." (Day Aff. Ex. 28 at 2.) Whitley responded "I feel fine now . . . I'm fine with it." (Day Aff. Ex. 28 at 2.)

Whitley continued to demonstrate performance deficiencies at the Academy. On February 6, 2006, Whitley received a report critique from an instructor at the Academy regarding Whitley's first report-writing assignment. (Whitley Dep. 127:19-23; Babnick Aff. Ex. 12.) Whitley did not meet DPSST standards in content and word choice, organization, or mechanics. (Johnston Am. Aff. Ex. 12.) Whitley received a 67.4% on her second written exam at the Academy (Babnick Aff. Ex. 14 at 2), which is a failing grade. (Johnston Am. Aff. Ex. 4 at 3.) Whitley passed all of her class room subjects but was ranked forty-first out of forty-two students in her class. (Johnston Am. Aff. Ex. 6; Day Aff. Ex. 14 at 2.)

Additionally, Whitley engaged in conduct that violated provisions of the Guide. On February 2, 2006, Whitley was assigned a use-of-force remediation...