United States District Court, D. Oregon
OPINION AND ORDER
F. BECKERMAN UNITED STATES MAGISTRATE JUDGE
Estep (“Estep”) brings this action against his
former employer, Forever 21 Retail, Inc. (“Forever
21”), alleging a single claim for disability
discrimination pursuant to Oregon Revised Statute
(“ORS”) § 659A.112, arising from Forever
21's termination of Estep's employment on June 30,
2016. (ECF No. 1.)
are Estep's Motion to Amend Schedule to Allow Leave to
File an Amended Complaint (“Leave to Amend”) (ECF
No. 17), to include additional factual allegations and a
prayer for punitive damages, and Forever 21's Motion for
Summary Judgment (ECF No. 20). For the reasons that follow,
the Court grants Estep's Motion for Leave to Amend, and
denies Forever 21's Motion for Summary Judgment.
2012, Forever 21 hired Estep as a co-store manager in Fresno,
California. (Jonathan Estep Decl. ¶ 4, June 6, 2018.)
Forever 21 promoted Estep to store manager in 2013, and to
district manager of the Washington State district in 2014.
(Estep Decl. ¶ 5; Jennifer Warberg Decl. Ex. 1 (Jonathan
Estep Dep. 37:12-14, Apr. 24, 2018 (hereinafter “Estep
Dep.”)), May 25, 2018.) In November 2015, Forever 21
temporarily assigned Estep to oversee additional stores in
the Sacramento district. (Estep Dep. 41:16-21.) In December
2015, Jane Ha (“Ha”), Vice President Store
Operations, assumed responsibility for all domestic
operations and, in so doing, became Estep's manager.
(Warberg Decl. Ex. 2 (Jane Ha Dep. 11:8-12:13, Apr. 25, 2018
(hereinafter “Ha Dep.”))).
2015, Forever 21 began an intensive review of its United
States store operations due to overall declining domestic
performance. (Ha Dep. 141:8-17; Warberg Decl. Ex. 3 (Karin
Durham Dep. 29:14-30:1, Apr. 24, 2018 (hereinafter
“Durham Dep.”))). As part of that review, senior
management began taking a closer look at underperforming
management at the district level, including Estep. (Ha Dep.
35:18-36:8, 143:10-144:3.) In addition, near the end of 2015,
Forever 21's founder and Chief Executive Officer, Do Won
Chang (“CEO Chang”), became more involved in
day-to-day operations. (Estep Dep. 238:1-19.)
Chang “identified a hundred bottom stores” for
his senior leadership team to visit between November 9 and
November 20, 2015. (Ha Dep. 143:10-144:3.) Although Ha did
not visit any of Estep's stores, she concluded that the
condition of Estep's Pine Street store was “far
below company expectation.” (Ha Dep. 33:11-18; see
also id. at 35:18-22 (“I was concerned
when I viewed the photos in November during the executive
meeting.”); id. at 100:15-25) (confirming that
the condition of the Pine Street store “was the worst
[she'd] seen in 18 years”); see alsoEstep
Dep. 97:14-18 (acknowledging that the Alderwood store was
“not to [company] standard”))).
2015, Ha's assessment of district level operations
revealed other examples of Estep's alleged substandard
performance. In particular, by December 2015, Forever 21
identified Estep as one of fifteen “Bottom
Performers” among forty-plus district managers. (Estep
Dep. Ex. 9 (stating that Estep was “[c]hallenged with
holding others accountable. Stores are operationally/visually
challenged. Does not exude leadership/presence. Needs support
with performance management.”)).
December 14, 2015, Ha sent an email to the district managers
of the bottom one hundred stores requesting photos of various
areas within the store. (Estep Dep. Ex 7.) Estep was the
district manager for six of the bottom one hundred stores.
(Id.; Estep Dep. 108:18-110:24.)
asked about receiving the December 14 email, Estep stated:
Q. What did you do, if anything, in response to receiving
A. I can't remember, quite honestly. By December 14th, I
was extremely sick. I'm not quite sure of what actions.
. . . .
Q. Did you ever communicate to Ms. Ha that any challenges
that may have been occurring in your district were a result
A. I believe I -- if I remember correctly, I didn't
specifically state that it was - the challenges we spoke of
with Ms. Ha were kind of bigger picture of product support,
things that we needed from the previous regional team that we
haven't been delivered.
So it was more large scale, not personally -- it was more
large-level conversation, not one-on-one of what personally I
needed for the market.
Q. So you never said to her in person or by phone or by e-
mail, “Hey, there are challenges in my district, and
part of the reason for that is I'm ill”?
A. Not at that time. I did e-mail her that I was sick. But at
the time, I was the only DM. I was the only person in that
market besides Jesus because Casie was out. I was supporting
So, for me, I just was power -- trying to power through it,
the sickness, because there was really nobody to turn to at
that time. Because I hadn't had a real conversation with
The regional team who were my support team were all gone. So
there was -- felt at that time no one to really turn to. And
there -- and so I never had that conversation.
(Estep Dep. 110:12-16, 123:9-124:12.)
December 21, 2015, Regional Visual Manager Lisa Castro
(“Castro”) expressed concern to Ha about the
“NW” region “as a whole” because
“stores are doing their own thing.” (Estep Dep.
Ex. 8.) Around this same time, Chief Marketing Officer Linda
Chang asked Ha why a handful of stores, including two Estep
managed, were still “not able to pick up.” (Estep
Dep. Ex. 10.)
to Forever 21, based on the executive visits and subsequent
reports, Ha decided to terminate Estep's employment:
Q. And at what time period were you looking at for the stores
in his district that were causing you concern?
A. Like I said, it started from the November executive visit.
The -- before the executive visit happened, Mr. Chang
identified a hundred bottom stores as stores that we needed
to visit. So that's the starting from the CEO identifying
Jonathan Estep's store amongst the other rest of the
stores as a concern store. So we needed to go out and
determine what is happening, and that's the starting
point of -- of seeing the stores. As I said, the -- the
presentation and condition was not anywhere near where it
needs to be. That's where the concern came from.
That's why you will see Jonathan Estep's name on
Linda's e-mails a lot. She sees the photos that I'm
looking at. She's calling out for reports to look at in
different angle and to see if -- you know, what we can do to
improve the business on these districts that were struggling.
Q. And that's why you agreed to terminate him?
A. I think -- to protect the company, to have somebody that
could own the business, I think that was the best decision.
(Ha Dep. 143:10-144:7.) However, Ha did not terminate Estep
in December 2015:
Q. Okay. Do you recall reading these observations at the top
of the page about Mr. Estep?
Q. And at the time that you read this, did you do anything in
response to these observations?
Q. Why not?
A. Taking over U.S. at that time with the 50-some-odd
district managers, I had to assess where I'm going to
address with priority. So, at that time, I did not do
those comments don't make [Plaintiff] a high priority?
There's a high priority amongst this bottom ...