Goldsby v. Safeway Inc.

          Robert K. Meyer, Attorney for Plaintiff

          David G. Hosenpud William E. Weiner Lane Powell PC, Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.

         Plaintiff Tiffany Goldsby brings this employment discrimination action against Defendant Safeway, Inc. (“Safeway”). Before the Court are Defendant's motion for summary judgment [22] and motion to strike portions of Plaintiff's evidence offered in response to Defendants motion for summary judgment [38]. Plaintiff alleges ten causes of action under Oregon state and federal law which can be grouped into four claims: (1) discrimination based on race, gender, and sexual orientation under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et. seq., 42 U.S.C. § 1981, and Or. Rev. Stat. (“O.R.S.”) § 659A.030; (2) hostile work environment on the basis of her race, gender, and sexual orientation in violation of Title VII and O.R.S. 659A.030; (3) retaliation under Title VII and O.R.S. 659A.030; and (4) retaliation and/or interference with protected leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et. seq., and the Oregon Family Leave Act (“OFLA”), O.R.S. 659A.183. Defendant moves for summary judgment on all of Plaintiff's claims. The Court rules as follows: summary judgment as to (1) is DENIED; (2) is DENIED; (3) is GRANTED in part; and (4) is DENIED. Additionally, Defendant's motion to strike is GRANTED in part.

         BACKGROUND

         Plaintiff is an African-American woman and a self-identified lesbian. Pl.'s Decl. ¶ 2, ECF 30. On August 24, 2006, Defendant hired Plaintiff to work on the night crew at Store #1269 in Northeast Portland. Id. at ¶ 3. Four years later, Plaintiff internally transferred to work as a produce clerk. Id. at ¶ 4; Compl. ¶ 11, ECF 1. On July 13, 2014, Lori Young became the Store Director at Store #1269. Young Decl. ¶ 3, ECF 23. In the first two months after Young's arrival, Plaintiff became responsible for managing the produce department. Id. at ¶ 4. During that same period, Young made multiple comments to Plaintiff concerning her race and sexual orientation. In August of 2014, after Young learned about Plaintiff's shoe collection, she said that “[i]t must be a black thing!” Pl.'s Decl. ¶ 8. In September of 2014, in response to Plaintiff telling Young that she did not want to be a produce manager, Young said “I thought dykes, gays were a lot stronger and can take on anything.” Id. at ¶ 9. Also in September of 2014, when Plaintiff told Young that she would finish certain tasks before working on projects assigned by Young, Young called Plaintiff a “lazy black bitch.” Id. at ¶ 10.

         Other Safeway supervisors and employees also witnessed Young making discriminatory comments about Plaintiff. Plaintiff's supervisor Derek Grimm overheard Young complain that Plaintiff was a “typical black working the system.” Meyer Decl. ¶ 3, Ex. 2 (Grimm Depo.) 55:9- 56:2, 16-18, ECF 29. Grimm also observed that Young would discipline Plaintiff more than other employees for attendance issues. Grimm Depo. 65:23-66:13; 68:17-20. In addition, Joelle Pohan, Plaintiff's co-worker who had supervisory authority over Plaintiff, heard Young refer to Plaintiff as a “butch” and “butch dyke” and heard Young call Plaintiff a “butch dyke bitch.” Pohan Decl. ¶ 8, ECF 31.

         Plaintiff requested leave based on her medical condition in October of 2014. Pl.'s Decl. ¶ 13. Plaintiff's therapist faxed the leave paperwork to Young. Id. Young denied receiving the paperwork. Id. Plaintiff then put her paperwork on Young's desk in Pohan's presence and took a photograph of it. Id. at ¶ 14; Pohan Decl. ¶ 14. Plaintiff testified Young denied receiving that paperwork as well. Pl.'s Decl. ¶ 14. Pohan testified that she later observed Plaintiff's leave paperwork in Young's trash bin. Pohan Decl. ¶ 14. When Pohan asked Young about the paperwork, Young responded “Tiffany doesn't matter.” Id. Young later told Plaintiff that she had not received her leave paperwork; however, when Plaintiff informed Young of the photograph, Young found the paperwork. Pl.'s Decl. ¶14. Plaintiff was granted leave from October 7 to November 15, 2014. Young Decl. ¶ 8.

         While on leave, Plaintiff and Young exchanged work-related text messages. Id. at ¶¶ 9, 12, Ex. 1; Pl.'s Decl. ¶ 16. In one of those messages, Young informed Plaintiff that she was entitled to twenty-four hours of paid leave, not the thirty-two hours that she had requested. Young Decl. ¶ 9. In another message, Young asked Plaintiff if she was going to extend her leave. Id. at ¶ 12. Also while on leave, Plaintiff obtained two jobs with different employers and twice reported Young's harassment to Defendant's human resources (“HR”) department. Hosenpud Decl. ¶¶ 4-5, 8, ECF 26; Pl.'s Decl. ¶¶ 11, 16.

         When Plaintiff returned from leave on November 16, Young transferred her from the produce department to the night crew. The parties provide competing explanations for the transfer. Defendant contends that Plaintiff requested the transfer in order to accommodate her two other jobs. Young Decl. ¶¶ 13-14. Plaintiff explains that Young offered the transfer to her because Young needed Plaintiff on the night crew and could give her more hours. Pl.'s Decl. ¶ 18. In any event, Plaintiff was transferred and her schedule on night crew included fewer working hours than her pre-leave position. Young Decl. ¶¶ 14-15; Pl.'s Decl. ¶ 20. Plaintiff requested to be reinstated to her produce position but Young denied the request because the position had been filled. Young Decl. ¶ 18; Pl.'s Decl. ¶ 20. On multiple occasions, both during and after Plaintiff's leave, Plaintiff asked Young if she could be transferred to another store. Pl.'s Decl. ¶¶ 17, 25. Young denied each of Plaintiff's requests, explaining that Safeway stores in the region were undergoing a transfer freeze due a federal antitrust review of the company's merger with Albertsons. Kiddle Decl. ¶ 10, ECF 24; Young Decl. ¶¶ 16-17.

         In December of 2014, Plaintiff reported to her union representative, Lucy Carrier, that she was not getting the hours she was entitled to and that Young was discriminating against her. Pl.'s Decl. ¶ 24; Yoo Decl. ¶ 4, ECF 25. Carrier relayed Plaintiff's complaints to Mona Yoo, Defendant's employee relations manager. Yoo Decl. ¶¶ 4, 6. Yoo, in turn, reported Plaintiff's discrimination complaint to Young on January 2, 2015. Young Supp. Decl. ¶ 5, Ex. 23, ECF 35. Three days later, on January 5, 2015, Young reported to Yoo that she was going to issue Plaintiff a written corrective action notice for attendance violations. Meyer Decl. ¶ 5, Ex. 4 (Yoo Depo.) 25:18-26:9. On January 20, 2015, Young issued Plaintiff a corrective action notice. Pl.'s Decl. ¶ 28, Ex. 3.

         On January 30, 2015, Plaintiff requested medical leave due to severe stress, anxiety causing chest pains, and depression due to Young's harassment and discrimination. Pl.'s Decl. ¶ 30; Meyer Decl. ¶ 12, Ex. 12. Plaintiff was granted leave from January 28 through February 22, 2015. Kiddle Decl. ¶ 15.When Plaintiff returned from leave, her hours were increased to fulltime. Id. In June of 2015, Store #1269 was closed and Plaintiff was transferred to another Safeway as a manager in the frozen department. Pl.'s Depo. 47:10-11.

         On July 30, 2015, Plaintiff filed a complaint with the Bureau of Labor and Industries (“BOLI”) alleging unlawful discrimination based on race and sexual orientation, retaliation, and interference with medical leave. Meyer Decl. ¶ 9, Ex. 8. BOLI issued a Notice of Substantial Evidence Determination on August 1, 2016. Id. Plaintiff filed this lawsuit on October 26, 2016.

         MOTION TO STRIKE

         Defendant separately filed a motion to strike portions of Plaintiff's evidence offered in response to Defendant's motion for summary judgment. See Mot. to Strike, ECF 38.^[1] A district court can only consider admissible evidence when reviewing a motion for summary judgment. Fed.R.Civ.P. 56(e). “At the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (citing Block v. City of Los Angeles, 253 F.3d 410, 418- 19 (9th Cir. 2001) (“To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rule of Civil Procedure 56.”). Furthermore, “hearsay evidence produced in an affidavit may be considered on summary judgment if the declarant could later present evidence through direct testimony.” Id. (citing J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990)). At summary judgment, the threshold for personal knowledge is “particularly low” because “all ‘justifiable inferences' must be drawn in favor of the nonmoving party.” Shultz v. Wells Fargo Bank, Nat. Ass'n, 970 F.Supp.2d 1039, 1066 (D. Or. 2013) (quoting Strong v. Valdez Fine Foods, 724 F.3d 1042, 1045 (9th Cir. 2013)).

         Defendant moves to strike portions of Plaintiff's former coworker Robert Meyer's testimony and supporting exhibits, and portions of Plaintiff's and Alisa Pohan's declarations. See Mot. to Strike 2. In particular, Defendant moves to strike evidence from five sources: (1) Plaintiff's handwritten notes; (2) portions of Grimm's declaration; (3) BOLI's notice of substantial evidence determination; (4) portions of Plaintiff's declaration; and (5) portions of Pohan's declaration.

         The motion is denied with respect to Plaintiff's handwritten notes. Defendant contends that the notes are hearsay and lack foundation. Plaintiff's notes, however, are admissible as prior consistent statements used to rebut an express charge by Defendant that her declaration is inconsistent with her deposition. See Fed. R. Evid. 801(d)(1)(B)(i). In addition, the evidence may be admissible to show Plaintiff's then-existing state of mind and emotional condition which is relevant to the subjective component of her hostile work environment claim. See Fed. R. Evid. 803(3). Assuming the testimony in its current form is not admissible at trial, the Court may consider it on summary judgment because Plaintiff could later present the evidence through direct testimony. Fraser, 342 F.3d at 1036-37.

         With respect to Grimm's testimony, the motion is granted in part to the extent of Plaintiff's concessions. Otherwise, the motion is denied. The Court's summary judgment determinations did not rely on the portions of Grimm's testimony to which Defendant objected. Similarly, the statements contained within BOLI's notice were cumulative with other testimony already before the Court. Accordingly, the Court did not rely on the contents of BOLI's notice in making any of its summary judgment determinations. Therefore, Defendant's motion to strike that evidence is denied as well.

         Next, Defendant moves the Court to strike portions of Plaintiff's declaration. According to Defendant, testimony in Plaintiff's declaration should be stricken under the “sham affidavit” rule because it is inconsistent with her prior deposition testimony. “This sham affidavit rule prevents ‘a party who has been examined at length on deposition' from ‘rais[ing] an issue of fact simply by submitting an affidavit contradicting his own prior testimony, ' which ‘would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.'” Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (quoting Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991)). In Yeager, the district court found that:

[W]here the deponent remembers almost nothing about the events central to the case during his deposition, but suddenly recalls those events with perfect clarity in his declaration in opposition to summary judgment without any credible explanation as to how his recollection was refreshed, the disparity between the affidavit and deposition is so extreme that the court must regard the differences between the two as contradictions.

Yeager v. Bowlin, No. CIV. 2:08-102 WBS JFM, 2010 WL 95242, at *5 (E.D. Cal. Jan. 6, 2010).

         Plaintiff answered “I don't remember” or with words to that effect more than 380 times at her deposition. Hosenpud Supp. Decl. ¶ 14, Ex. 38, ECF 37. Plaintiff's declaration, by contrast, contains detailed testimony regarding events that Plaintiff testified she did not remember at her deposition. The Court finds that Plaintiff's testimony cannot be struck under the “sham affidavit” rule. The majority of the testimony to which Defendant objects is consistent with her prior statements in her handwritten notes and her BOLI complaint. Pl.'s Supp. Decl. ¶¶ 1-2, Exs. 1, 2, ECF 40. Plaintiff's notes were written contemporaneously with the events that they described and Plaintiff's BOLI charge was filed on July 30, 2015. Id. Plaintiff's deposition was taken approximately twenty-two months later on May 25, 2017. Hosenpud Supp. Decl. Ex. 38. Plaintiff's handwritten notes and BOLI complaint were introduced at her deposition and were used to refresh her recollection to create her declaration. Pl.'s Depo. 128:19-147:23; Pl.'s Supp. Decl. ¶¶ 2-3. Based on this timeline and the record, the Court finds that Plaintiff has provided a credible explanation for the disparity between her deposition testimony and declaration.

         Defendant also objects to portions of Plaintiff's declaration on other grounds. The motion is granted as to ¶¶ 16, 30, and 31 of Plaintiff's declaration for the reasons Defendant identified. The motion is denied as to ¶¶ 7 and 10 because that testimony was based on Plaintiff's personal knowledge and her interactions with Young. That ...