WELA ALERT: NINTH CIRCUIT

District Court Improperly Granted Employer Summary Judgment on Retaliation, Discrimination and Hostile Work Environment Claims

Plaintiff was born in Mexico and moved to the United States several decades ago at age 15.  He became a United States citizen in 1981.  From 2004 to 2010, Efrain worked as a millwright at Roseburg, where he performed his job well and received positive evaluations. Efrain’s son, Richard, worked at Roseburg for about two years. Efrain and Richard were the only Hispanic millwrights at Roseburg. Plaintiff alleges numerous instances of racially derogatory language principally from a Millwright with whom he worked. He also alleges many instances of disparate treatment and retaliation.

In October 2009 the offending Millwright was coached by management and told that he can make people feel uncomfortable.  Shortly thereafter, in response to a written complaint the company hired an independent investigator.  Plaintiff explained to the investigator the history of racial hostility, and the harasser’s work schedule was changed so that plaintiff didn’t have to work with him.

After reading additional racist material on the work site, plaintiff came to work and discovered the harasser on the same shift.  He immediately left the premises and notified the employer that he would not work on the same shift as the harasser.  Human Resources met with plaintiff about walking off the job and explained that they would do the best they could but that it was impossible to segregate them completely, and the harasser was instructed to avoid them when they were on the same shift.  Plaintiff refused to work with the harasser under these circumstances and the company suspended them.

On January 18, 2010, plaintiff received a letter explaining that his employment was terminated for walking off the job, and refusing to work on January 13, 2010.  On the same date, plaintiff received a second letter explaining that he exhibited a lack of “full cooperation” with the investigation and that Roseburg was “forced to conclude [its] investigation absent a follow up and closing interview.” The letter also stated that the investigation revealed “no evidence of a severe or pervasive hostile work environment,” but did reveal some “personnel issues and [Roseburg] intend[ed] to address those issues . . . but [Efrain was] unwilling to meet . . . despite     . .  . repeated phone calls and attempts to communicate.”

Plaintiff filed suit under 42 U.S.C. §1981, Title VII of the Civil Rights Act of 1964, and Oregon state law. He alleged a hostile work environment, disparate treatment, and retaliation.  The district court granted summary judgment and plaintiff appealed.  The Ninth Circuit reversed in part and affirmed in part.

To succeed on a hostile work environment claim based on race, the plaintiff must demonstrate: “(1) that he was subjected to verbal or physical conduct of a racial . . . nature; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create an abusive work environment.”  The first two elements were undisputed.  As to the third element, the court of appeals overruled the district court and held that the harassment was sufficiently severe or pervasive.  “Contrary to the district court’s conclusion, the demeaning comments that directly reference race or national origin were not ‘offhand comments’ or ‘mere offensive utterance[s].’” “[W]e hold that a reasonable trier of fact could conclude that Branaugh’s repeated racially derogatory and humiliating remarks were sufficiently severe or pervasive to create a hostile work environment.”  The Court relied upon a negligence theory to impose liability on the employer.

In reference to disparate treatment, the court of appeals recognized that a plaintiff has a choice to use either the McDonnell Douglas shifting burden model or, in the alternative, a plaintiff may simply produce direct or circumstantial evidence demonstrating that a discriminatory reason “more likely than not motivated” the employer.  The court of appeals engaged in a fact intensive review of the record and concluded that there existed a question of fact on the issue of disparate treatment.  The Court ruled that evidence that similarly situated employees being treated more favorable in the same precise manner was not required.  The fact that the employer required the plaintiff to continue to work with a co-worker who had a proven history of repeatedly and persistently harassing plaintiff was evidence of discriminatory intent.

To establish a prima facie case of retaliation, a plaintiff must show “that he undertook a protected activity under Title VII, his employer subjected him to an adverse employment action, and there is a causal link between those two events.” “[O]nly non-trivial employment actions that would deter reasonable employees from complaining about Title VII violations will constitute actionable retaliation.”  Plaintiff’s evidence as to how he was treated during his employment, the timing of his termination being one month after his written complaint, and the disparity in punishment between Efrain and Branaugh are sufficient to establish a genuine dispute of fact as to whether Roseburg’s proffered reason for terminating plaintiff’s employment was pretextual. Therefore, the district court erred in granting summary judgment in favor of Roseburg on Efrain’s claim of retaliatory termination.

Judge Bea concurred in the majority’s decision in reference to retaliation but dissented in reference to the hostile environment and disparate treatment claims.  Judge Bea concluded those claims were correctly dismissed because the employer took prompt and effective action to rectify the hostile work environment experienced and terminated him only after he repeatedly refused to work his assigned shifts with his harasser.

Reynaga v. Roseburg Forest Products, 847 F.3d 678 (9th Cir. 1/26/2017) (Pregerson, Owens, Bea).