United States District Court, D. Oregon
DOUGLAS S. MILLS, Plaintiff,
PEACEHEALTH, dba PEACEHEALTH LABORATORIES, Defendant
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For Douglas S. Mills, Plaintiff: Aaron W. Baker, LEAD ATTORNEY, Attorney at Law, Portland, OR.
For PeaceHealth, a foreign nonprofit corporation doing business as Peacehealth Laboratories, Defendant: Joy Ellis, LEAD ATTORNEY, Garvey Schubert Barer, Portland, OR.
OPINION AND ORDER
Michael J. McShane, United States District Judge.
This Court is asked to consider: (1) whether defendant discriminated against plaintiff because of his religion (Judaism) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e-2000e-17 (Title VII) and (2) whether defendant subjected plaintiff to a hostile work environment under Title VII. Because (1) plaintiff's allegations of disparate treatment do not meet his burden under McDonnell Douglas and (2) plaintiff's allegations of discriminatory conduct are not sufficiently severe or pervasive to alter the conditions of his employment, this Court finds that defendant did not violate Title VII. Thus, defendant's motion for summary judgment, ECF No. 27, is GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
This action arises out of alleged disparate treatment and hostile work environment. Plaintiff is an individual who practices Judaism. Pl.'s Second Am. Compl. 2, ECF No. 8. Pursuant to his religious practices, plaintiff wears a kippah also known as a yarmulke, and tzitzit. See, e.g., Decl. of Aaron W. Baker 23, ECF No. 37-2.
Plaintiff began working for defendant, a nonprofit catholic health care provider, as
a medical laboratory technician in March 2005. Decl. of Joy Ellis 2, ECF No. 29-1. In September 2009, plaintiff accepted a new evening shift position; medical technologist. Id. at 5. Plaintiff's new full-time (32-hour per week) position included a pay raise and required plaintiff to " be very flexible in [his] availability." Decl. of Aaron W. Baker 1, ECF No. 37-3.
Sometime in 2009, a coworker, Chris Pettit, allegedly told plaintiff that he should not wear a kippah, and repeatedly commented that plaintiff's tzitzit were actually pasties that he used to sexually stimulate himself. Decl. of Joy Ellis 3, ECF No. 29-3. Additionally, Pettit also allegedly teased plaintiff when Pettit discovered plaintiff eating pepperoni pizza in the break room. Id. According to plaintiff, he reported these comments to his shift manager, Lee Limbaugh. Decl. of Joy Ellis 17, ECF No. 29-1. Pettit transferred to a different department in February 2010, and had no further contact with plaintiff. Decl. of Joy Ellis 17, ECF No. 29-1; Decl. of Chaim Hertz 2, ECF No. 31.
On another undated occasion in 2009, an unspecified employee allegedly told plaintiff that he wore a kippah to cover up his bald spot. Decl. of Joy Ellis 16, ECF No. 29-1. Plaintiff provided no evidence that he reported this comment.
In January 2010, plaintiff attended a mandatory CE meeting. Decl. of Joy Ellis 24, ECF No. 29-1. That multi-part meeting, lasting a few hours, consisted of multiple speakers. Decl. of Aaron W. Baker 2, 10, ECF No. 37-2 (indicating that defendant's chief executive officer Ran Whitehead also presented). During the final part, the last speaker, Rick Lyons, discussed defendant's mission statement. Id. at 3. To facilitate discussion, each employee was handed a hard copy of the mission statement with designated words underlined for discussion. Id. at 13. That handout provided, in relevant part:
PeaceHealth Mission Statement
We carry on the healing mission of Jesus Christ by promoting personal and community health, relieving pain and suffering, AND treating each person in a loving and caring way.
Decl. of Aaron W. Baker 2, ECF No. 37-3. The participating employees split into four or five groups. Decl. of Aaron W. Baker 6, ECF No. 37-2. In each group, the employees were asked to separately discuss what each underlined term meant to each employee. Id. at 14. Each group recorded its thoughts on a poster board to facilitate discussion among the groups. Decl. of Joy Ellis 3, ECF No. 29-3. After discussing the terms " we," " carry on," and " healing," Lyons directed the employees to write what " Jesus meant to [them]." Id.; Decl. of Aaron W. Baker 9, ECF No. 37-2. Plaintiff, after discussing the matter with his group members, decided not to participate in defining " Jesus." See Decl. of Aaron W. Baker 6, ECF No. 37-2. One
of the other employee-participants in a different group, sitting behind plaintiff, wrote that Jesus was " the ONLY son of God" and plaintiff became uncomfortable. Decl. of Joy Ellis 3, ECF No. 29-3; see also Decl. of Aaron W. Baker 6-7, ECF No. 37-2. Lyons then followed up and expanded on the employee's comment. Decl. of Aaron W. Baker 7, ECF No. 37-2.
Sometime afterward, Lyons allegedly instructed the employees to " move closer in, and [Lyons] put the [poster] boards up where he had written [the employee's comment] down. And [Lyons] said, 'everybody get up and form a circle around me, and we are going to talk about Jesus.'" Decl. of Aaron W. Baker 7-8, ECF No. 37-2. Plaintiff initially " sat in the back by [himself]" while the other participants formed a circle around Lyons. Id. at 7, 10-11. At some point, Lyons allegedly looked at plaintiff and stated that Christianity is " a good religion." Id. at 8; Decl. of Aaron W. Baker 3, ECF No. 37-3. Plaintiff informed Lyons that it was not his religion and that plaintiff thought the discussion was " putting a wedge in our teamwork and the words we and together by excluding [plaintiff]." Decl. of Aaron W. Baker 3, ECF No. 37-3. Plaintiff left the room. Id. at 4.
Plaintiff returned to the meeting to see if the group had finished discussing " Jesus." Id. After finding that the group continued to talk about " Jesus and compassion," plaintiff made the following remark: " If you really want to talk about everything, what this means to you . . . . To me it means the Holocaust, the Black Plague," and the " way the Pope treated the Jews during World War [II]." Decl. of Aaron W. Baker 8, ECF No. 37-2; Decl. of Aaron W. Baker 5, ECF No. 37-3. Lyons allegedly then told plaintiff that plaintiff " [had] a tortured soul." Decl. of Aaron W. Baker 8, ECF No. 37-2; Decl. of Aaron W. Baker 5, ECF No. 37-3. Plaintiff responded: " I answer to a higher power." Decl. of Aaron W. Baker 8, ECF No. 37-2; but see Decl. of Aaron W. Baker 4, ECF No. 37-3 (indicating that plaintiff made this comment prior to plaintiff's initial departure). Lyons then allegedly made an unheard comment, resulting in a number of employee's laughing. Decl. of Aaron W. Baker 8, ECF No. 37-2; but see Decl. of Aaron W. Baker 4, ECF No. 37-3 (indicating that Lyons made this joke during plaintiff's initial departure). Plaintiff then " stormed out the door" to have a cigarette. Decl. of Aaron W. Baker 8, ECF No. 37-2.
After the CE meeting, plaintiff verbally complained to human resources. Id. at 15. His complaint resulted in a discussion of the incident with the following PeaceHealth administrators: Gloria Foust, Director; Sister Kathleen Pruitt, Vice President of Mission Integration and Spirituality; Hertz, Human Resources Director; and Stokes, Evening Supervisor. Id. at 16-18. Plaintiff alleges that during a meeting with Hertz and Stokes, Hertz continued to ask plaintiff whether he had a problem with the mission statement. Id. at 19. Hertz then allegedly stated: " Well, being's you have a problem with the mission statement . . . I just want to explain to you that I'm Atheist and Jacob's Atheist." Id. Stokes then allegedly suggested that plaintiff needed " to embrace the religion of the hospital that [plaintiff] work[ed] for." Id. After some additional conversation, Hertz allegedly said: " I don't know, you know, about keeping you after this incident." Id. at 20.
Sometime after that earlier meeting, plaintiff again met with Hertz and Stokes. Id. at 21. Hertz allegedly stated: " We talked to other people about what had happened in CE days, and we feel you were treated disrespectfully . . . . Do you want a letter in writing for apology?" Id. Plaintiff declined the letter and indicated that " this is resolved, I don't need it in writing." Id. Hertz then informed plaintiff: " Well, whatever days you need off, whatever kind of accommodations you need, go ahead and write an e-mail." Id.
In April 2010, plaintiff alleges that a coworker, Luke O'Reilly, from the specimen processing department, told plaintiff that " it was ridiculous for PeaceHealth to hire a Jew to work there." Decl. of Joy Ellis 3, ECF No. 29-3; Decl. of Aaron W. Baker 44, ECF No. 37-1. Plaintiff did not report these comments. Decl. of Joy Ellis 3, ECF No. 29-3.
In June 2010, plaintiff alleges that Stokes yelled at him from across the room to take a break because it was required under Oregon law. Decl. of Aaron W. Baker 64-65, ECF No. 37-1; Decl. of Joy Ellis 23, ECF No. 29-1. After plaintiff failed to move as quickly as Stokes desired, Stokes " came around . . . [and] chased [plaintiff] towards the break room" and yelled " at [plaintiff] to go on break." Decl. of Aaron W. Baker 7, 64-65, ECF No. 37-1.
In September 2010, plaintiff alleges that a coworker, Carlos, from the microbiology department, asked plaintiff why he worked at PeaceHealth when " Jews had money stashed and didn't really need to work." Decl. of Joy Ellis 3, ECF No. 29-3. Plaintiff did not report these comments. Id.
In November 2010, plaintiff alleges a manager, Jeanne Nordloff, from a different department, asked plaintiff why he was taking Thanksgiving as a holiday; she suggested that Thanksgiving was a Christian holiday. Id. at 4. Plaintiff " discussed the matter with [Nordloff] and [Nordloff] realized [plaintiff] was insulted." Id. Plaintiff did not report these comments. Decl. of Aaron W. Baker 47, ECF No. 37-1.
In December 2010, plaintiff alleges a coworker, Dan Markham, from plaintiff's department, informed plaintiff that plaintiff's people " are murderers and are the reason that there is conflict in the Middle East and America." Id.; see also Decl. of Aaron W. Baker 52, ECF No. 37-1 (" And one of the comments he made was, you know, 'You think you're all innocent,' or something, 'but I know that Jews are murderers, like everybody else.'" ). At one point, this discussion escalated, and plaintiff yelled at Markham. Decl. of Aaron W. Baker 52, ECF No. 37-1. Plaintiff did not report these comments. Decl. of Joy Ellis 4, ECF No. 29-3.
Also, sometime in December 2010, plaintiff overheard two coworkers, O'Reilly and Matt Kueker, having a conversation in the break room. Id. O'Reilly allegedly told Kueker that " [t]hey should just send all the Jews back to Germany being it was Germany's fault that the Jews moved to Israel in the first place." Id.; Decl. of
Aaron W. Baker 43, ECF No. 37-1. Plaintiff did not report these comments. Decl. of Joy Ellis 4, ECF No. 29-3; Decl. of ...