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Lanyon v. Interfor U.S. Inc.

United States District Court, D. Oregon

April 26, 2018

ROBERT LANYON, Plaintiff,
v.
INTERFOR U.S. INC., dba INTERFOR PACFIC INC., Defendant.

          OPINION AND ORDER

          MICHAEL MCSHANE, UNITED STATES DISTRICT JUDGE.

         Plaintiff Robert Lanyon (“Lanyon”) alleges he was the subject of discrimination, retaliation, and a hostile work environment during his employment with defendant Interfor Inc. (“Interfor). Interfor moves for summary judgment. Because there are genuine issues of material fact regarding the hostile work environment and retaliation claims, but not the age discrimination claim, Interfor's motion (ECF No. 28) is GRANTED in part and DENIED in part.

         BACKGROUND[1]

         On August 23, 2013, Interfor hired Lanyon, then 40 years old, as a Stacker Operator on the swing shift at its Gilchrist sawmill. Interfor employs approximately 150 employees at the Gilchrist location. On May 14, 2014, Interfor transferred Lanyon to the day shift under the supervision of Gene Smith (“Smith”). Decl. of John David Burgess (“Decl. of JDB”), Ex. A at 4, ECF No. 37. The month following, on June 18, 2014, Interfor moved Lanyon to the planer operations and Lanyon began working as a Moulder Setup Person. On November 4, 2014, Interfor promoted Lanyon to Senior Planer Operator. Decl. of JDB, Ex. A at 5.

         On October 11, 2011, Interfor hired Thomas Phillips (“Phillips”) as a stacker operator during the day shift. On April 27, 2013, Interfor promoted Phillips to a lead role. On September 2, 2014, Interfor promoted Phillips to sawmill supervisor. Decl. of JDB, Ex. B at 3.

         Throughout Phillips's tenure, multiple employees, including Lanyon, alleged that Phillips engaged in improper behavior. See Decl. of JDB, Ex. C at 108-12. Lanyon claims that Phillips touched him inappropriately on numerous occasions. He claims that Phillips touched his buttocks, that Phillips put his hands down Lanyon's pants, that Phillips blew in his ear, and that Phillips tried to touch his genitals by putting his hands in Lanyon's pockets. Decl. of JDB, Ex. C at 108. Lanyon alleges that this behavior occurred “all the time” and it did not cease even after Lanyon moved from the sawmill to the moulder. Decl. of JDB, Ex. C at 108-09. Phillips frequently threatened to physically harm Lanyon, including an incident where Phillips threatened to throw Lanyon over a hand rail. Decl. of JDB, Ex. C at 79, 117-18.

         Lanyon insists that he complained to his supervisors on numerous occasions and that supervisors observed Phillips's inappropriate conduct yet failed to remedy the situation. See Decl. of JDB, Ex. C at 53. Phillips agreed that supervisors observed him engaging in the behavior alleged, but contends his behavior was “clowning around.” Decl. of JDB, Ex. C at 110-11. Smith, a former supervisor of Lanyon, admitted that he counseled Phillips regarding his behavior. Decl. of JDB, Ex. C at 50-51.

         Although Phillips admits to engaging in inappropriate conduct throughout his employment, Interfor did not discipline him until its Human Resources Department (“HR”) received a complaint from Johnathan Shelley (“Shelley”) on July 15, 2015. See Decl. of MacKinlee Reed ¶ 2, ECF No. 29. Within a week of receiving Shelley's complaint, Interfor fired Phillips. Decl. of MacKinlee Reed ¶ 2.

         Within a month of Phillips being terminated, Interfor terminated Lanyon. Decl. of JDB, Ex. A at 6, ECF No. 37. Prior to his termination, on March 10, 2015, Interfor suspended Lanyon and placed him on a Last Chance Agreement (“LCA”) for behavior involving playing with a remote control truck and the mill and leaving work during a shift without clocking out. Decl. of Caroline Livett, Ex. 1 at 30, ECF No. 33. The LCA explicitly stated that Lanyon would be dismissed within a twelve-month period for a “further violation of any kind.” Decl. of Caroline Livett, Ex. 1 at 30 (emphasis in original). Before his termination, Interfor laid Lanyon off along with several other employees. Decl. of Greg Duncan ¶ 5, ECF No. 32. Interfor states that Lanyon was included in these layoffs because of his disciplinary issues and recent placement on a LCA. Decl. of Caroline Livett, Ex. 3 at 4, ECF No. 33. Interfor informed Lanyon that his layoff was likely to be temporary. Decl. of Alan Day ¶ 4, ECF No. 31.

         One day after being laid off, Lanyon admitted to confronting Steve Thomas (“Thomas”), the Production Superintendent. Decl. of JDB, Ex. C at 17-18, ECF No. 37. The confrontation took place away from work and Thomas stated that he feared for his safety. Decl. of Caroline Livett, Ex 4 at 4-7, ECF No. 33. Interfor terminated Lanyon, effective August 6, 2015. Decl. of JDB, Ex A at 6, ECF No. 37.

         On April 13, 2016 Lanyon filed a charge of employment discrimination with the Oregon Bureau of Labor and Industries (“BOLI”). Compl. ¶ 4, ECF No. 1. BOLI issued a right to sue letter on August 4, 2016. Compl. ¶ 4. On October 26, 2016, Lanyon filed this complaint.

         STANDARDS

         The court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue is “genuine” if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is “material” if it could affect the outcome of the case. Id. The court reviews evidence and draws inferences in the light most favorable to the non-moving party. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). When the moving party has met its burden, the non-moving party must present “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (quoting Fed.R.Civ.P. 56(e)).

         DISCUSSION

         I. Age Discrimination

         Under the Age Discrimination in Employment Act (“ADEA”), it is unlawful for an employer to fire an employee because of age. 29 U.S.C. § 623(a)(1) (2012). This applies with equal force at the state level. Or. Rev. Stat. § 659A.030(1)(a) (2017). Age discrimination claims are analyzed under a “but for” standard, meaning that a plaintiff must establish that age was the “but for” cause of the adverse employment action taken against the plaintiff. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).[2] In meeting this burden, a plaintiff may present either direct or circumstantial evidence of age discrimination. Id. at 177-78. Here, the parties agree that Lanyon failed to provide any direct evidence that age was the “but for” cause of his termination and that he instead relies upon circumstantial evidence.

         ADEA claims utilizing circumstantial evidence are subject to the burden-shifting analysis of McDonnell Douglas Corp. v. Green (“McDonnell Douglas”), 411 U.S. 792, 802-804 (1973). First, the employee must establish a prima facie claim of discrimination. Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008). To establish a prima facie case, an employee must show that: (1) he belongs to a protected class; (2) he was performing his job satisfactorily; (3) he was subject to an adverse employment action; and (4) he was either replaced by a substantially younger employee with equal or inferior qualifications or discharged under circumstances otherwise “giving rise to an inference of age discrimination.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). The “degree of proof” required for a prima facie age discrimination claim is minimal. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (“The requisite degree of proof necessary to establish a prima facie case for Title VII and ADEA claims on summary judgment is minimal and does not even need to rise to the level of preponderance of the evidence.”). If plaintiff can establish a prima facie claim, the burden then shifts to the employer to articulate a ...


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