United States District Court, D. Oregon
FINDINGS OF FACT AND CONCLUSIONS OF LAW
PAUL PAPAK, Magistrate Judge.
Plaintiff Jon Cramblett filed this action against defendant John McHugh, Secretary of the Army, on January 15, 2010. As discussed in greater detail below, at the time he filed this action, Cramblett was employed as a welder at the U.S. Moorings in Portland, Oregon, by the U.S. Army Corps of Engineers, Northwestern Division (the "Corps"), and had been so employed since approximately October or November 2005, when he was approximately 56 years old. Prior to filing his complaint, Cramblett had applied for numerous better-paying jobs working for the Corps as a welder or rigger on dam projects, without success. Cramblett amended his complaint on December 9, 2010.
By and through his amended complaint, Cramblett alleged defendant's liability for age discrimination in violation of the Age Discrimination in Employment Act of 1967 (the "ADEA"), for retaliation in violation of the ADEA, for maintaining a hostile, racially discriminatory work environment in violation of Title VII of the Civil Rights Act of 1964, for retaliatory harassment in violation of the ADEA, and for retaliation in violation of Title VII, each such claim arising out of six occasions on which the Corps denied Cramblett's applications for better-paying jobs, and instead hired younger applicants to fill the vacancies at issue.
On November 19, 2012, I recommended that defendant be granted summary judgment as to all of Cramblett's claims other than (i) his ADEA disparate treatment claim to the extent premised on the Corps' hiring decision in connection with a welder vacancy announced in May 2009 at the The Dalles Dam, and (ii) his ADEA retaliatory harassment claim, which is premised on the Corps' alleged harassment of Cramblett in retaliation for his October 2008 decision to file on EEOC complaint regarding the Corps' repeated failures to hire him. On March 8, 2013, Judge Brown adopted that recommendation without modification. As of March 14, 2013, all parties consented to magistrate jurisdiction.
Effective June 29, 2013, Cramblett resigned from employment by the Corps.
Prior to Cramblett's resignation, in March and April 2013 - apparently in contemplation of Cramblett's pending decision to resign - the patties had discussed the possibility that Cramblett would amend his complaint a second time, to add a claim of constructive discharge arising out of his resignation. On April 23, 2013, I directed Cramblett to file his second amended complaint by August 2, 2013, and directed the patties to complete discovery related to the contemplated constructive discharge claim by September 30, 2013. On July 1, 2013, however, just two days after the effective date of Cramblett's retirement, Cramblett advised defendant and the court that he had elected not to amend his complaint or to add a claim for constructive discharge, and that his remaining claims could therefore be immediately set for bench trial (no party having requested trial by jury).
In consequence, this action went to bench trial on March 4, 5, 6, 7, and 20, 2014, in connection with Cramblett's ADEA retaliatory harassment claim and ADEA disparate treatment claim to the extent premised on the Corps' hiring decision to fill the The Dalles Dam welder vacancy announced in May 2009. I have considered the trial testimony, oral argument on behalf of the parties, and all of the evidence of record. My findings of fact and conclusions of law are as follows.
FINDINGS OF FACT
1. The U.S. Moorings ("the Moorings") is a shipyard on the Willamette River in Portland Oregon operated by the Portland District of the Corps. The primary purpose of the Moorings is to support two Corps dredge ships that operate along the west coast. The Moorings is staffed by a welding team composed of three to five welders.
2. Plaintiff Jon Cramblett ("Cramblett") was hired by the Corps as a welder at the Moorings in November 2005. Cramblett was 56 years old when he was hired by the Corps. At all material times, Cramblett was a certified shielded metal arc welder (unlimited, all positions) and flux-cored arc welder (unlimited, all positions), as well as a journeyman rigger and certified overhead crane operator. In addition, at all material times Cramblett was a veteran qualifying for 10-point veterans' preference eligibility under 5 U.S.C. § 2108. At all material times during Cramblett's tenure at the Moorings, the working foreman of the welding team Cramblett was part of was Charles Bobnick, whose job responsibilities included tracking and approving leave and work hours, provision of work assignments to members of the weld team, and enforcing compliance with applicable safety procedures in the workplace. The next higher manager in Cramblett's reporting structure was the Yard Superintendent, a position filled on a rotating basis by the working foremen in the trade and craft shops at the Moorings until early 2009, when Guy Vetere was appointed to the position. The next and highest level manager in Cramblett's reporting structure was Mac Robison, the Corps' Chief of Plant Maintenance for the Portland District.
3. Although Cramblett accepted the position at the Moorings, his goal was to work at one of the Corps's hydroelectric dams on the Columbia River. The jobs at the dams pay significantly more than the jobs at the Moorings. For this reason, Corps employees often move from the Moorings to jobs at the dams. Cramblett applied for a number of positions at the dams prior to and after he was hired at the Moorings, but was not selected for any of these positions. It was widely known at the Moorings that Cramblett hoped to be hired for a position at one of the dams, and Cramblett widely shared his disappointment in repeatedly failing to be selected for such a position.
4. By early 2007, Cramblett believed that he had not been selected for a position at one of the hydroelectric dams because of his age, and he shared this theory frequently and at length with his co-workers in the weld shop at the Moorings. Cramblett had a son-in-law, David Proctor, who worked for the Corps in the same building as LaMar Williams, the Equal Employment Opportunity (EEO) Manger for the Portland District of the Corps. On February 15, 2007, Proctor sent an email to Williams on behalf of Cramblett. Proctor stated in the email as follows:
Mr. LaMar I understand that you are the E.O. Rep for the Corps of Engineers Portland Branch. Jon Cramblett is employed by the Corps and feels he's been discriminated against for his age. He's wondering if you could guide him in the right direction as far as who he may need to talk to? Could Jon call you sometime today or tomorrow? His contact number is XXX-XXX-XXXX.
Proctor did not explain his relationship to Cramblett in the email to Williams. Williams emailed Proctor and Cramblett back about setting up a meeting but the meeting never occurred. Williams did not work with Cramblett or Proctor and had not met either one of them at this time.
5. Later in 2007, Williams met Cramblett while Williams was at the Moorings to teach an EEO workshop. Cramblett told Williams he was having trouble getting hired for a position at the dams and asked Williams if he could find out more information about the selection process. At the end of the conversation, Cramblett mentioned that he had a black son-in-law. Cramblett (who is Caucasian) assumed that Williams (who is African-American) knew that Proctor was Cramblett's son-in-law and that Williams knew that he worked in the same building as Proctor. Therefore, in Cramblett's mind the comment was contextually appropriate in that he thought he was helping Williams identify his son-in-law. However, Williams did not understand Cramblett's reasons for making the remark, and perceived it as a socially awkward attempt by Cramblett to ingratiate himself with Williams. A few weeks later, Cramblett called Williams to follow up on their conversation and to request the identities of the persons ultimately selected for the positions Cramblett had applied for. Cramblett perceived Williams as annoyed by the call, and as hostile to Cramblett.
6. Williams and Cramblett had several email exchanges over the next year and half in which Cramblett would ask for information about various selections at the dams and Williams would attempt to obtain the requested information. Cramblett never asked Williams whether he could file an EEO Complaint about his non-selections and Williams never notified Cramblett about his right to do so. Cramblett did take EEO training during this time period which included information about his right to file an EEO complaint. At one point, Williams referred Cramblett to James Richards, the Corps' EEO officer for the Walla Walla District regarding his theory of age discrimination in connection with Cramblett's non-selection for jobs in that district. Richards advised Cramblett to remove from his resume certain items from which his age could easily be inferred, but Cramblett did not take this advice. Like Williams, Richards did not notify Cramblett of his right to file an EEO complaint.
7. In or around December 2007, Cramblett filed a grievance through his union regarding alleged age discrimination in connection with his non-selection for a position at one of the dams. In September 2008, the union determined that the grievance system was an inappropriate mechanism for resolving a claim of age discrimination in hiring, and referred Cramblett to his EEO office. Rather than working through his EEO office, on October 1, 2008, Cramblett filed an informal complaint of age discrimination with the Corps regarding his non-selection for positions at the dams, relying on the services of an attorney. (Ex. 10.) Williams became aware of this complaint in October 2008 by virtue of his position with the Corps. Williams referred the complaint to Mary Bretz, an EEO specialist reporting to him. Bretz conducted an investigation of Cramblett's claims, including his allegations that Williams and Richards improperly failed to advise him of his EEO rights.
8. On November 7, 2008, Williams was at the Moorings to teach an EEO class to supervisory employees. Prior to his class, Williams went to the Bobnick's office and asked if two employees he knew were present in the workplace. When Williams learned they were not there, he asked to see Cramblett. Bobnick escorted Williams to where Cramblett was working in the weld shop. Cramblett did not recognize Williams from their earlier meeting, so Williams reintroduced himself. Cramblett was initially taken aback after he learned it was Williams since he had just recently filed an EEO complaint. Williams apologized to Cramblett for not being able to help him with his concerns about his inability to get a job at the dams. Cramblett then raised his contention that age discrimination was the reason he had not obtained a job at the dams. At that point, Williams told Cramblett that they needed to stop talking because Cramblett was represented by an attorney in connection with that matter. Cramblett said he would not tell his attorney about the conversation, but Williams said that to the contrary he should do so. Williams nevertheless elected to continue the conversation and stated that he did not believe Cramblett's work performance was a reason he was not getting hired. Cramblett mistook this as a criticism of his work performance, and asked Bobnick (who had remained for the conversation) about his performance. Bobnick then made complimentary statements about Cramblett's performance and dedication to work. Williams then suggested the possibility that Cramblett was not presenting himself well when he applied for the jobs. Williams knew that Cramblett had gone uninvited to one dam for an informational interview and Williams was concerned about Cramblett's interpersonal skills. As an example, Williams made reference to Cramblett's previous statement to him about the fact that he had a black son-in-law. Williams then had to leave to give the training. The conversation did not involve raised voices and lasted approximately five minutes. Williams never spoke to Cramblett again after that day and their only subsequent interactions were in the context of Cramblett's litigation regarding Williams's conduct. Williams later conceded that his approach of Cramblett in the workplace following Cramblett's EEO complaint was "probably inappropriate."
9. Later that day, Bobnick thanked Williams for speaking to Cramblett. Williams interpreted Bobnick's appreciation to mean that Bobnick agreed with Williams's statements to Cramblett and that Bobnick had not previously expressed these thoughts to Cramblett.
10. On November 14, 2008, the Portland Army Recruiting Battalion conducted a day of training at the Skamania Lodge resort in Stevenson, WA. The Portland Army Recruiting Battalion is an Army unit that received EEO support from the Corps. Williams gave a 90 minute EEO class as part of the training. During the class, Williams stated that it was important for managers to use good judgment and to be frank with their employees. Williams gave the example of an employee who had made an awkward comment about having a black son-in-law and the employee's supervisor thanking Williams for talking to the employee. This anecdotal example was discussed for a period of approximately five minutes. Williams did not mention Cramblett or any other individuals by name, and made no direct reference to the Moorings. Unbeknownst to Williams, Cramblett's daughter Melissa Cramblett ("Melissa") was one of the 20 attendees of the class. Cramblett had told Melissa about his interactions with Williams, so she realized that Williams was referring to her father.
11. Later that night, Melissa called her father and told him about the example that Williams used in the class.
12. Cramblett was a Vietnam veteran who had lived with a number of medical conditions that arose from his military service. Among these conditions were post-traumatic stress disorder ("PTSD") and a tremor in his hands. One traumatic ordeal that Cramblett experienced in Vietnam was the suicide of one of his fellow soldiers, a teenager named Junior. In Cramblett's recollection, Junior's suicide was due in part to an overbearing lieutenant. Cramblett's PTSD symptoms had worsened in 2006. (Ex. 540.)
13. Cramblett's PTSD symptoms worsened still further in November 2008 after Cramblett learned of Williams' anecdote to the Skamania Lodge training class, and he began suffering flashbacks to the suicide of Junior, likening Williams to the overbearing lieutenant and himself to Junior. Cramblett began consulting with Linda Rotering, PhD., in connection with his worsened PTSD and related symptoms, including depression, anxiety, and sleep disorder.
14. As Cramblett's daughter Melissa observed, Cramblett's demeanor underwent a dramatic change after he learned about the Skamania Lodge incident, from which he never recovered during the tenure of his employment at the Moorings. Cramblett became depressed and withdrawn, and felt alienated from his co-workers and management at the Moorings. Cramblett's depression affected his interactions in the workplace. His co-workers felt his personality had developed a "roller-coaster" aspect that made it difficult to interact with him. These symptoms manifested in his job at the Moorings in a variety of ways. Cramblett mentioned to his coworkers on more than one occasion that he had contemplated suicide. In 2011, he mentioned that something that had occurred at work had almost made him "go postal."
15. Cramblett's co-workers and supervisors dealt with his mood swings as best they could. When Cramblett's statements revealed suicidal ideation, his co-workers promptly reported it to supervisors who, in turn, reached out to the Corps's Employee Assistance Program ("EAP") for guidance. (Ex. 521, 522.) Likewise, when Cramblett made the "go postal" comment, his supervisors ensured that he was ...