United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL MCSHANE, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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). 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
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