OPINION AND ORDER
MICHAEL J. McSHANE, District Judge.
Plaintiff brings this action seeking damages and attorney's fees for alleged violation of his rights under (1) 42 U.S.C. § 2000e et seq. (Title VII), (2) 42 U.S.C. § 1981, and (3) ORS § 659A.030(1)(a) & (b). Plaintiff alleges that he was subjected to a hostile work environment and adverse employment actions because of his race or national origin, and terminated in retaliation for his complaints of discrimination. Defendant filed this motion for summary judgment. This Court has jurisdiction under 28 U.S.C. §§ 1331 & 1367. Upon review, defendant's motion for summary judgment (#37) is GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
Defendant hired plaintiff as a millwright in November, 2004. Decl. of Efrain Reynaga ¶ 2, ECF No. 45. On October 14, 2009, plaintiff had a confrontation with a lead millwright, Timothy Branaugh, over who should work on a particular piece of machinery. Pl.'s First Am. Compl. ¶ 28, ECF No. 22. On October 15, 2009, Plaintiff's son, Richard Reynaga, who also worked for defendant, talked with maintenance superintendent Terry Turner about his father's problems with Timothy Branaugh. Id. at ¶ 29; Decl. of Dan Clark 15-16, ECF No. 37-2. On October 17, 2009, a dispute/altercation arose between Richard Reynaga and Branaugh relating to seniority and performance of a certain welding job. Mem. in Supp. of Def.'s Mot. Summ. J. 2, ECF No. 37-1. Defendant subsequently investigated this dispute/altercation. Decl. of Dan Clark 3, ECF No. 37-2. Plaintiff participated in the investigation to support his son, and while present at an associated meeting, also complained to management about his ongoing conflict with Branaugh. Id.; Mem. in Supp. of Def.'s Mot. Summ. J. 3, ECF No. 37-1. The parties contest whether plaintiff complained that Branaugh's harassment was racial in nature. In response to plaintiff's complaint, defendant's managing personnel (Turner, Westbrook, and Albertus) met with and verbally reprimanded Branaugh. Decl. of Terry Turner 2, ECF No. 37-5.
Plaintiff subsequently filed a written complaint alleging racial harassment with defendant on December 3, 2009. Decl. of Marianne Dugan, ECF No. 47-1. In response to this complaint, Defendant hired Vigilant, a company specializing in employment relations for timber companies. Decl. of Jon McAmis 2, ECF No. 37-5. Vigilant was hired to investigate the allegations underlying the complaint and interview the pertinent parties. Id. Vigilant interviewed plaintiff on December 10, 2009. Decl. of Kenneth Roelofs 2, ECF No. 37-5. In that interview, plaintiff revealed a racial statement made by Tim Branaugh and indicated that he didn't want to work with Branaugh. In response, defendant scheduled plaintiff and Branaugh in a way that kept them separated in the work place as much as possible. Decl. of Jon McAmis 2, ECF No. 37-5.
Vigilant unsuccessfully attempted to hold a second interview with plaintiff on December 21, 2009. Jon McAmis Letter, ECF No. 37-5. The parties contest plaintiff's willingness to be interviewed a second time. Vigilant contacted plaintiff seeking a second interview on December 21, 2009. Initially, plaintiff refused to be interviewed without an attorney. Decl. of Efrain Reynaga ¶ 63, ECF No. 45. Per company policy, defendant did not allow attorneys to be involved in plant-level investigations. Plaintiff claims that he subsequently informed defendant that he was willing to do the second interview without an attorney. Id. at ¶ 64.
On January 9, 2010, plaintiff and his son arrived for their scheduled shift. Upon discovering that Branaugh was on-site that day, they immediately departed from the premises. Plaintiff's son notified defendant that they had left, stating "Efrain and I Richard Reynaga... [a]rrived for work to find Timm B [sic] here! We will not work in a hostile work environment. We will report to our shift on Wednesday Jan, 13, 2010... [u]nless we hear otherwise." Decl. of Efrain Reynaga, 9-10, ECF No. 45. On January 13, 2010, plaintiff and plaintiff's son met with defendant's Human Resources and Safety Supervisor, Dan Johnson, to discuss January 9, 2010. Johnson told plaintiff and plaintiff's son that "Branaugh would be off-shift... as much as possible, but that there were some days where Branaugh and the Reynagas would be at the sawmill at the same time." Mem. in Supp. of Def.'s Mot. Summ. J. 5, ECF No. 37-1; Decl. of Daniel Johnson 3, ECF No. 37-5. Johnson also informed plaintiff that "Branaugh had been told to stay away from [plaintiff and plaintiff's son] and to have no contact with them unless a work necessity or emergency arose" and instructed plaintiff to do the same. Id. at 2. After this conversation, Johnson asked plaintiff and plaintiff's son if they would complete their shifts with Branuagh on-site; they said they would not. Id. Johnson thereafter suspended plaintiff and plaintiff's son "pending the conclusion of [Vigilant's] investigation due to their refusal to work." Id. at 6.
On January 18, 2010, plaintiff received a letter of termination from defendant. Id. at 4. The letter explained that plaintiff was terminated "for walking off the job on January 9, 2010, and refusing to work on January 13, 2010." Id.; Decl. of Daniel Johnson 3, ECF No. 37-5. Plaintiff received a second letter related to his termination on the same date, which discussed plaintiff's "lack of cooperation with the investigation conducted by [Vigilant]." Mem. in Supp. of Def.'s Mot. Summ. J. 6, ECF No. 37-1; Decl. of Daniel Johnson 5, ECF No. 37-5. The second letter informed plaintiff that Vigilant's investigation suffered from the lack of a second interview, but that the investigation nonetheless revealed "no evidence of a severe or pervasive hostile work environment." Decl. of Daniel Johnson 5, ECF No. 37-5. The investigation did, however, reveal "some personnel issues... which [defendant] wanted to address, but Plaintiff had been unwilling to meet and ignored phone calls." Id.
STANDARD OF REVIEW
The court must grant summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). This Court views the evidence in the light most favorable to the non-moving party. Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995) (citing Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994)). If the moving party shows that there are no genuine issues of material fact, the nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see FED. R. CIV. P. (56)(c).
Defendant contends that there is insufficient evidence to show that: (1) plaintiff was subjected to a hostile work environment in violation of Title VII and § 1981; (2) plaintiff was subjected to disparate treatment in violation of Title VII and § 1981; (3) plaintiff was terminated and subjected to disparate treatment in retaliation for his discrimination complaints in violation of Title VII and § 1981; and (4) plaintiff was discriminated against because of his race in violation of ORS § 659A.030(1)(a) and (b).
I. Hostile Work Environment, Title VII & § 1981
Plaintiff alleges that he was subjected to a racially hostile work environment in violation of Title VII and § 1981. Pl.'s First Am. Compl. ¶ 59, ECF No. 22. Title VII and § 1981 establish a two-part test for determining employer liability in the context of a hostile work environment claim. First, plaintiff must establish a prima facie hostile work environment claim. See, e.g., Vasquez, 349 F.3d at 642. Second, if plaintiff is successful in establishing a prima facia claim, then this Court must assess whether the employer is liable either vicariously or through negligence.
A. Prima Facie Hostile Work Environment Claim
A prima facie hostile work environment claim requires a plaintiff to show that "(1) 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." Vasquez, 349 F.3d at 642 (citing Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998)). Because neither party contests that plaintiff met his burden under the first two prongs, this Court's inquiry will focus on the third prong.
In determining whether conduct rises to the level of severe and pervasive, this Court focuses on the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Faragher, 524 U.S. at 787-88 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). ...