United States District Court, D. Oregon
A. CRISPIN ASHLEY A, MARTON Crispin Employment Lawyers
Attorneys for Plaintiff
CAROLINE R. GUEST KELLY S. RIGGS Ogletree, Deakins, Nash,
Smoak & Stewart, P.C. Attorneys for Defendants
OPINION AND ORDER
J. BROWN, UNITED STATES SENIOR DISTRICT JUDGE.
matter comes before the Court on the Motion (#31) for Summary
Judgment and Motion (#36) for Discovery Sanctions filed by
Defendants Blue Elephant Holdings, LLC, and Donald Morse and
the Motion (#47) for Partial Summary Judgment on Liability
filed by Plaintiff Cheryl Aichele.
reasons that follow, the Court GRANTS in
part and DENIES in part
Defendants' Motion for Summary Judgment,
DENIES Defendants' Motion for Discovery
Sanctions, and DENIES Plaintiff's Motion
for Partial Summary Judgment.
following facts are taken from the parties' Joint
Statement of Agreed Facts (#30) and summary-judgment
materials and are undisputed unless otherwise noted.
Elephant is an Oregon corporation that owns and operates a
marijuana dispensary in Southwest Portland, which does
business as “The Human Collective II” or
“The Human Collective.” Morse is an owner of Blue
Elephant and serves as the Managing Director of the
corporation. As Managing Director Morse is authorized to make
decisions regarding the day-to-day management of the
November 10, 2015, until March 2016 Plaintiff was employed by
Blue Elephant as a part-time “bud tender.” On
January 28, 2016, Ric Leonetti, the manager of the store
where Plaintiff worked, held a staff meeting at which he
distributed and discussed Blue Elephant's new Employee
Handbook. Plaintiff signed an acknowledgment of receipt of
the Employee Handbook on that date.
early February 2016 Plaintiff complained to Morse and/or
Leonetti about alleged black mold on a vent in the restroom.
Plaintiff also sent an instant message to Morse regarding
this issue, but Morse denies he received any instant message
at that time. Morse asserts he later heard about
Plaintiff's mold complaint from Leonetti.
February 2016 Plaintiff alleges she made approximately six
oral complaints to Morse and/or Leonetti about internal doors
being left unlocked or open, the door chime being
deactivated, and the safe being left open.
afternoon of February 26, 2016, while Plaintiff and numerous
other employees and customers were present, a customer walked
behind the sales counter and attempted to open the door to
the apothecary where most of the cannabis product is kept.
While another employee helped the customer, Plaintiff went to
Morse's office, told him that she did not feel safe, and
asked Morse to handle the situation. Plaintiff also told
Morse that she thought it would be nice if he hired an armed
February 29, 2016, and March 1, 2016, Morse spoke with
attorney Scott Snyder regarding Plaintiff's complaint
that she did not feel safe after the customer walked behind
the counter. Morse asked Snyder for legal advice regarding
his options with respect to Plaintiff. Snyder advised Morse
that Oregon is an at-will employment state and that the
company could and should terminate Plaintiff's
March 4, 2016, at approximately 10:30 a.m. before the store
opened where Plaintiff worked, a music video was streaming to
a TV monitor in the dispensary showroom. Plaintiff and four
other employees (Cody Brown, Nick Harris, Eliav Cohen, and J.
Cody Robertson) were working in the showroom.
video is a total of seven minutes and 34 seconds and consists
of two parts. The first part depicts a party scene, and the
second part is more sexually graphic. Shortly after the
second half of the video began to play, Plaintiff objected to
the video being played and demanded that her co-workers turn
it off. The parties disagree as to the words used and the
manner in which Plaintiff stated her objection. As soon as
Plaintiff objected to the video, one of her co-workers rushed
to the computer controls to turn it off. Blue Elephant's
security camera footage shows the video was turned off in
less than 30 seconds after Plaintiff complained.
the video was turned off, Plaintiff continued yelling at
Brown and used profanity. Brown was considered the assistant
manager of the store. Brown became upset, also yelled and
used profanity, and told Plaintiff to leave work. Plaintiff
did not leave.
called Leonetti, who was not at work on the day of this
incident, and told him what had happened. Leonetti asked to
speak with Plaintiff. In graphic language Plaintiff told
Leonetti that she was offended by the video.
10:45 a.m. that same day Leonetti sent a text message to
Brown, Cohen, and Morse with the following instructions:
“ONLY THE MENU PLAYS ON THE TV SCREEN. IMMEDIATELY STOP
PLAYING ANYTHING THE [sic] COULD BE OFFENSIVE TO
ANYONE.” Emphasis in original.
worked the remainder of her shift on March 4, 2016.
in the afternoon on March 4, 2016, Morse again called Snyder
to inform him that Plaintiff had complained about sexual
comments, conversations, music, and music videos being
displayed in the dispensary. Morse told Snyder about the
incident that had occurred with the video that morning,
including Plaintiff's response and behavior during and
after the incident. Morse asked Snyder for legal advice and
reassurance as to what he should do with respect to
Plaintiff. Snyder reiterated his advice to Morse to terminate
March 4, 2016, at 4:19 p.m. Morse sent the following text
message to Leonetti: “I have been advised by our
attorney to terminate Cheryls [sic] employment. If
you care to discuss it please call me.” Plaintiff
worked on March 5, 2016, but she was not scheduled to work on
March 6, 2016.
March 7, 2016, Plaintiff arrived at work at approximately
9:35 a.m., immediately handed an envelope to Leonetti, and
told him that it was her “incident report and formal
sexual harassment complaint.” The written complaint set
out her safety concerns arising from the customer walking
behind the dispensary counter on February 26, 2016, and
alleged sexual harassment, a hostile work environment, and
took the papers to his office and began to review them. After
a few minutes Leonetti called Plaintiff into his office.
There is a dispute as to the details of this conversation,
but the parties agree Leonetti told Plaintiff to go home for
the day. The parties also agree Leonetti was the sole
decision-maker to send Plaintiff home from work on the
morning of March 7, 2016.
March 7, 2016, at 11:22 a.m. after Plaintiff had gone home,
she sent an email titled “Formal Sexual harassment
& Hostile Work Environment Complaint #2” to
Leonetti and others, including Morse. Plaintiff reiterated
her earlier complaints; stated Leonetti had retaliated
against her by sending her home that morning after she
submitted her written complaints; and asked that Leonetti,
Brown, Harris, and Cohen immediately resign or be terminated.
Plaintiff also asked for her email to be forwarded to Morse.
Morse reviewed Plaintiff's written incident reports and
complaints, he called Snyder to update him on the situation
and again asked for his advice on how to proceed. Leonetti
was present and heard at least part of the telephone call.
Morse told Snyder about Plaintiff's written complaints
and asked Snyder whether that changed Snyder's advice in
any way. Snyder again told Morse that Oregon is an
“at-will employment state” and advised Morse to
March 7, 2016, at 12:47 p.m. Morse called Plaintiff and left
her a voicemail asking to talk with her about her complaints
and what had transpired that morning. At 5:18 p.m. Plaintiff
returned Morse's call and left him a voicemail. At 5:40
p.m. Morse returned Plaintiff's call. Plaintiff recorded
the telephone call with Morse. During the conversation Morse
terminated Plaintiff's employment.
from Snyder providing legal advice and recommending
termination, the parties agree Morse was the sole
decision-maker and that he made the decision to terminate
Plaintiff's employment on March 7, 2016. The parties also
agree Morse was acting within the course and scope of his
authority as an owner and Managing Director of Blue Elephant
when he terminated Plaintiff's employment, and, as the
Managing Director of Blue Elephant, Morse had the authority
to make the decision to terminate Plaintiff without first
consulting the Board of Directors or any other owner or
manager of Blue Elephant.
March 8, 2016, at 2:59 p.m. after speaking with a different
attorney, Morse sent an email to Plaintiff and rescinded her
termination. Morse placed Plaintiff on paid administrative
leave pending an investigation of her complaints.
March 8 and 9, 2016, Blue Elephant issued written
disciplinary actions to Brown, Harris, Cohen, and Leonetti
regarding the video incident and Plaintiff's complaints.
March 10, 2016, Plaintiff sent an email to Morse and attached
copies of all of her written incident reports and complaints
and provided a link to the song lyrics and a link to the
March 18, 2016, Defendants' attorney sent an email to
Plaintiff's attorney and notified him that the
investigation was complete and that Plaintiff would be placed
back on the work schedule for shifts beginning March 22,
2016, at 12:30 p.m.
did not return to work on March 22, 2016.
March 22, 2016, Defendants' attorney sent an email to
Plaintiff's attorney and described the remedial efforts
that Blue Elephant had taken in response to Plaintiff's
complaints and notified him that Plaintiff was on unpaid
administrative leave effective that date.
March 23, 2016, Morse sent Plaintiff her final paycheck in
which she was paid for her actual hours worked during the
week of March 1-5, 2016, and her average of 20 hours per week
for the weeks of March 6-12 and March 13-19, 2016. Plaintiff
did not return to work after March 22, 2016.
her employment with Blue Elephant Plaintiff earned $10 per
hour and worked an average of 20 hours per week. The parties
agree Plaintiff did not suffer any economic loss or damages
between March 7, 2016, and March 22, 2016. Moreover,
Plaintiff does not seek recovery of any economic damages
other than lost wages.
parties agree after Plaintiff's employment with Blue
Elephant ended in March 2016, Plaintiff did not seek
employment until May 31, 2016, and she applied for only eight
jobs between that date and December 4, 2016.
17, 2016, Plaintiff filed a charge of unlawful employment
practices with the Oregon Bureau of Labor and Industries,
Civil Rights Division (BOLI), and the Equal Employment
Opportunity Commission (EEOC).
October 21, 2016, Plaintiff filed a complaint in Multnomah
County Circuit Court against Defendants. Plaintiff alleged
claims for retaliation pursuant to 42 U.S.C. §
2000e-3(a) and Oregon Revised Statutes §§
659A.030(1)(f) and 654.053(5) and claims for retaliation for
whistleblowing pursuant to Oregon Revised Statutes §
November 22, 2016, Defendants filed a Notice of Removal in
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Washington Mut. Ins.
v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011).
See also Fed. R. Civ. P. 56(a). The moving party
must show the absence of a dispute as to a material fact.
Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146
(9th Cir. 2005). In response to a properly supported motion
for summary judgment, the nonmoving party must go beyond the
pleadings and show there is a genuine dispute as to a
material fact for trial. Id. "This burden is
not a light one . . . . The non-moving party must do more
than show there is some 'metaphysical doubt' as to
the material facts at issue." In re Oracle Corp.
Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citation
dispute as to a material 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)). The court must draw all reasonable
inferences in favor of the nonmoving party. Sluimer v.
Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
"Summary judgment cannot be granted where contrary
inferences may be drawn from the evidence as to material
issues." Easter v. Am. W. Fin., 381 F.3d 948,
957 (9th Cir. 2004)(citation omitted). A “mere
disagreement or bald assertion” that a genuine dispute
as to a material fact exists “will not preclude the
grant of summary judgment.” Deering v. Lassen Cmty.
Coll. Dist., No. 2:07-CV-1521-JAM-DAD, 2011 WL 202797,
at *2 (E.D. Cal., Jan. 20, 2011) (citing Harper v.
Wallingford, 877 F.2d 728, 731 (9th Cir. 1989)). When
the nonmoving party's claims are factually implausible,
that party must "come forward with more persuasive
evidence than otherwise would be necessary." LVRC
Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir.
substantive law governing a claim or a defense determines
whether a fact is material. Miller v. Glenn MillerProd., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If
the resolution of a factual dispute would not affect the