United States District Court, D. Oregon
K. Meyer, Attorney for Plaintiff
G. Hosenpud William E. Weiner Lane Powell PC, Attorneys for
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
Tiffany Goldsby brings this employment discrimination action
against Defendant Safeway, Inc. (“Safeway”).
Before the Court are Defendant's motion for summary
judgment  and motion to strike portions of
Plaintiff's evidence offered in response to Defendants
motion for summary judgment . 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
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.
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.
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.
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.
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.
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.
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.
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.
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. 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)).
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.
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
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.
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).
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.
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