United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. McSHANE, District Judge.
Plaintiff Jesse Soto ("Soto") alleges he was the subject of discrimination, retaliation and a hostile work environment during his employment with the United States Postal Service. Defendant Postmaster Patrick Donahoe for the United States Postal Service moves for summary judgment. Because there are genuine issues of material fact regarding the discrimination and retaliation claims, but not the hostile work environment claim, defendant's motion (ECF No. 15) is DENIED in part and GRANTED in part.
Soto, a Hispanic male, was employed by the United States Postal Service for fourteen years. (Soto Decl. ¶¶ 2-3.) From February 2005 to April 20, 2012, Soto was a Supervisor of Maintenance Operations ("SMO") for the Processing and Distribution Facility in Eugene, Oregon ("Eugene plant"). (Soto Decl. ¶ 3.) Soto was one of three SMOs who all worked the day shift from 7:00 am to 4:00 pm. (Soto Decl. ¶ 5.) After one of the SMOs retired in May 2010, Eugene Plant managers and supervisors held a telephone conference regarding the vacant position. (Soto Decl. ¶ 6-7.) Conference call participants included Soto, David Long (USPS Maintenance Manager Lead), Robert Vore (Eugene Plant Manager), Barry Brenner, (Eugene Plant Maintenance Manager), and Bob Hohenberger (another SMO). (Soto Decl. ¶ 7.) According to Soto, Long said "I hope you are sitting down because your new maintenance supervisor is Shelley Brown." Vore said "Don't I have a say in this?" Long replied, "No, it has already been decided." After the telephone conference, Soto reports that Vore turned to Brenner and said, "We will change her shift then and see how she likes that." Id.
Shelley Brown, an African American woman, began working at the Eugene Plant in October 2010. (Brown Decl. ¶¶ 2, 6.) Although initially she worked the day shift, on November 4th she learned that she would work a modified swing shift from 12:00 p.m. to 9:00 p.m. effective November 22, 2010. (Brown Decl. ¶¶ 7-8, 14) Because of the shift change, Brown's job duties changed. (Brown Decl. ¶ 9.) Brown filed an Equal Employment Opportunity ("EEO") complaint in March 2011 as a result of this change in hours and job duties. (Brown Decl. ¶ 10.)
In May 2011, Robert Atkinson began a six month detail as Acting Manager of Maintenance, replacing Brenner, who retired on June 2, 2011. (Atkinson Decl. ¶ 2; Soto Decl. ¶ 12.) Atkinson became Soto's supervisor. (Atkinson Decl. ¶ 2.) Around this time, Soto learned an EEO investigator wanted him to file an affidavit in connection with Brown's EEO complaint. (Soto Decl. ¶ 11.) Soto recalls that he told Vore, in the presence of Brenner, that he was going to file an affidavit that "would not be favorable to the agency or to him [Vore]." Id.
Soon thereafter, Soto recounts that Atkinson approached him and asked him, "How do you think we should go about changing supervisor's hours?" (Soto Decl. ¶ 13.) Soto replied "I don't want to be a part of this and I want nothing to do with her [Brown's] hours being changed. I know why you are doing this and this isn't right." Id. After this encounter, Soto says he asked Vore, "Are you changing the supervisor's hours?" Id. Vore responded, "No, I am merely looking into the future if a position becomes open or vacant." Id.
On June 8, 2011, Atkinson met with the SMOs to solicit discussion regarding SMO staffing structure. (Atkinson Decl. ¶ 3-4.) On June 27, 2011, Atkinson provided Soto and Brown with notices that their shift ("tour") assignments were going to change effective July 9, 2011. (Atkinson Decl. ¶ 5.) Soto's shift was changed to the swing shift ("Tour 3") from 3:30 p.m. to 12:30 a.m. and Brown's shift was changed to the graveyard shift ("Tour 1") from 12:00 a.m. to 9:00 a.m. (Atkinson Decl. ¶ 6; Soto Decl. ¶ 14-15.) Hohenberger, the only non-minority SMO, remained assigned to the day shift ("Tour 2"). (Soto Decl. Ex. 4, p. 5.) Vore and Long authorized the shift changes. (Brady Aff. Ex. 9, Atkinson Depo. P. 28 ln. 20-24.)
Soto filed an EEO complaint on November 7, 2011 alleging, among other things, race discrimination and retaliation. (Soto Decl. ¶ 17.) On May 9, 2012, the USPS issued a final agency decision, concluding Soto was not subjected to discrimination. (MSJ Ex. 3.) On August 3, 2012, Soto filed this complaint.
The court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue is "genuine" if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is "material" if it could affect the outcome of the case. Id. The court reviews evidence and draws inferences in the light most favorable to the non-moving party. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). When the moving party has met its burden, the nonmoving party must present "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (quoting Fed.R.Civ.P. 56(e)).
Racial discrimination claims are subject to the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973). First, the employee must establish a prima facie claim of discrimination. Id. at 802; Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008). An employee must establish that 1) he belongs to a protected class; 2) he was qualified for the position; 3) he was subject to an adverse employment action; and 4) similarly situated individuals outside of his protected class were treated more favorably. Davis, 520 F.3d at 1089. Next, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the alleged disparate treatment. Id. at 1091. ...