United States District Court, D. Oregon
For Plaintiff: Craig A. Crispin and Shelley D. Russell, Crispin Employment Lawyers, Portland, Oregon.
For Defendant: Michael Porter and Cody J. Elliot, Miller Nash LLP, Portland, Oregon.
OPINION AND ORDER
Michael H. Simon, United States District Judge.
Dr. Rosemary Siring (" Plaintiff" or " Siring" ) brings this lawsuit against Oregon State Board of Higher Education, acting by and through Eastern Oregon University (" Defendant" or " EOU" ). The Court held a pretrial conference in this case on October 8, 2013, and issued its Opinion and Order on Pretrial Motions. Dkt. 109. The parties then submitted additional briefing on several issues, including: (1) whether the recent Supreme Court opinion in University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), alters the causation standard for Dr. Siring's employment discrimination and retaliation claims, primarily her claims under the Americans with Disabilities Act (" ADA" ), to the " but for" standard; (2) whether certain actions taken by EOU during Dr. Siring's terminal year are " adverse employment actions; " (3) whether evidence of Plaintiff's previous tenure process at Montana State University--Billings (" MSU-B" ) is admissible; and (4) whether Plaintiff's Ex. No. 78 should be excluded because it was not produced in discovery. This Opinion and Order addresses these issues.
I. EMPLOYMENT DISCRIMINATION CAUSATION STANDARD
A. University of Texas Southwestern Medical Center v. Nassar
In the recently decided Nassar case, the Supreme Court clarified the standard for proving unlawful retaliation under Title VII of the Civil Rights Act. 133 S.Ct. 2517. At issue in Nassar was whether the " motivating factor" causation standard that applies to status-based discrimination claims under Title VII also applied to Title VII claims of retaliation. The Supreme Court held that it did not. Id. at 2532. Justice Kennedy, writing for the majority, explained that the " motivating factor" causation standard applies only to status-based claims of discrimination under Title VII and that the correct causation standard for retaliation claims under Title VII is the " but for" standard. Id. at 2532-33. Justice Kennedy based his opinion on the structure, text, and legislative history of Title VII--noting that Congress recently had amended Title VII, overruling the Supreme Court's earlier, narrow interpretation of discrimination, and specifically adding the words " motivating factor" to the status-based discrimination clause of Title VII, while leaving unchanged the retaliation clause's " because of" causation standard. Justice Kennedy further concluded that the plain text meaning of " because of" is " but for." Id. at 2530-33. Therefore, under Title VII retaliation, plaintiffs must prove that their protected activity was the " but for" cause of an adverse employment action.
B. Nassar's Effect on Other Employment Discrimination Causes of Action
While the Nassar holding changes the causation standard for Title VII retaliation claims, it is unclear whether it affects the causation standard for other employment discrimination causes of action with similar causation language as Title VII, such as claims under the ADA and the Oregon Disability Discrimination Statute, Or. Rev. Stat. 659A.030. This Opinion addresses each of Plaintiff's employment discrimination and retaliation causes of action, the statutory causation standard, and how these causes of action are affected, if at all, by the Nassar holding.
Plaintiff does not dispute that the correct causation standard for age discrimination and retaliation under the Age Discrimination in Employment Act (" ADEA" ) is the " but for" standard. See Gross v. FBL Financial Services, Inc., 557 U.S. ...