United States District Court, D. Oregon
Heather Kowitz. Plaintiff Pro Se.
M. Milligan and Ryan C. Bailey, Deputy City Attorneys, Office
of City Attorney, 1221 SW Fourth Avenue, Suite 430, Portland,
OR 97204. Of Attorneys for Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge.
Heather Kowitz (“Plaintiff”) asserts in her
Amended Complaint two claims against Defendant, the City of
Portland (“Defendant”). The Court previously
granted Defendant's motion for partial summary judgment
against Plaintiff's claim of disability discrimination
and retaliation under Title I of the Americans with
Disabilities Act (“ADA”). Defendant now moves for
summary judgment against Plaintiff's remaining claim, for
retaliation under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. 2000(e)(3), and her
request for punitive damages. For the reasons stated below,
Defendant's motion is granted.
Motion for Summary Judgment
is entitled to summary judgment if the “movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party has the burden of
establishing the absence of a genuine dispute of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The court must view the evidence in the light most
favorable to the non-movant and draw all reasonable
inferences in the non-movant's favor. Clicks
Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257
(9th Cir. 2001). Although “[c]redibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge . . . ruling on a motion for summary
judgment, ” the “mere existence of a scintilla of
evidence in support of the plaintiff's position [is]
insufficient . . . .” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252, 255 (1986). “Where the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
and quotation marks omitted).
Retaliation under Title VII
VII prohibits an employer from “discriminat[ing]
against any of [its] employees . . . because [the employee]
has opposed any practice made an unlawful practice” by
Title VII. 42 U.S.C. 2000e-3(a). To state a prima
facie claim for retaliation under Title VII, an employee
must show that (1) he or she engaged in a protected activity;
(2) he or she suffered an adverse employment action; and (3)
there is a causal link between the two. See, e.g.,
Dawson v. Entek Intern., 630 F.3d 928, 936 (9th Cir.
2011). The required causation for Title VII retaliation is
“but for” causation, requiring “proof that
the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action or actions of the
employer.” Univ. of Texas Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 360 (2013).
Ninth Circuit analyzes Title VII retaliation claims under the
McDonnell Douglasburden-shifting framework.
Dawson, 630 F.3d at 936. Accordingly, if an
employee establishes the three elements to her prima
facie claim, the burden then shifts to the employer, who
must offer evidence that it had a legitimate,
nondiscriminatory reason for the challenged action.
Id. If the employer satisfies its burden, the burden
then shifts back to the employee to show that the
employer's proffered explanation is mere pretext for
impermissible discrimination. Id.
a self-identified lesbian, began work for Defendant as a
journeyman electrician in November 2013. On August 15, 2014,
Plaintiff orally complained to Defendant's Human
Resources (“HR”) department that she experienced
workplace discrimination because of her gender, sexual
orientation, and status as a veteran. Defendant's HR
department representative Kenneth Carter emailed Plaintiff to
set up a meeting and initiate an investigation into her
claims. On September 10, 2014, Plaintiff met with Mr. Carter.
Plaintiff later raised concerns with Mr. Carter's
handling of the investigation, claiming that he shared
confidential information, asked Plaintiff “trick
questions, ” and accused her of contradicting herself.
On September 19, 2014, Plaintiff submitted a complaint to the
Oregon Bureau of Labor and Industry (“BOLI”)
claiming she was subjected to workplace sexual orientation
discrimination, a hostile work environment, and retaliation.
response to Plaintiff's concerns with Mr. Carter,
Defendant's employee Elizabeth Lopez took over the
investigation into Plaintiff's complaints. Ms. Lopez
interviewed Plaintiff on several occasions, and also
interviewed 18 of Plaintiff's coworkers. Throughout the
investigation, Plaintiff's co-workers voiced concerns
about Plaintiff's intimidating and inappropriate behavior
in the workplace. They reported that they observed Plaintiff
walking directly at them in narrow hallways without moving to
the side and making animal-like grunting noises while walking
in circles. One co-worker complained that Plaintiff yelled at
him over the telephone in the middle of the night because she
could not find the job to which she was assigned. Another
reported that Plaintiff formed a “finger gun”
gesture with her hand, pointed at him, and mimicked pulling
early October 2014, Plaintiff had a negative interaction with
a senior supervisor, Chief Engineer Steve Townsen, and was
placed on administrative leave for the remainder of the day.
On October 17, 2014, Defendant placed Plaintiff on paid
administrative leave pending an investigation concerning her
behavior during the prior months. The previous day, BOLI
dismissed Plaintiff's discrimination complaint.
also required that Plaintiff participate in a “fitness
for duty” psychological examination to determine
whether she was fit for work. On November 7, 2014, Dr.
Suzanne Best conducted the examination. Defendant received
Dr. Best's full report on November 24, 2014, which
indicated that Plaintiff was fit for work, but would benefit
from working in collaboration with others and under a
different supervisor. On December 17, 2014, Ms. Lopez
reported the findings of her investigation, concluding that
Plaintiff's complaints to HR about discrimination in the
workplace were unsubstantiated.
after Plaintiff returned to work on January 2, 2015,
Plaintiff was issued a proposed 40-hour suspension for the
inappropriate and intimidating behavior reported before her
leave. Plaintiff responded in writing to the proposed
suspension and disputed Defendant's interpretation of ...