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Kowitz v. City of Portland

United States District Court, D. Oregon

February 11, 2019


          Heather Kowitz. Plaintiff Pro Se.

          Anne 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.


          Michael H. Simon United States District Judge.

         Plaintiff 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.


         A. Motion for Summary Judgment

         A party 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).

         B. Retaliation under Title VII

         Title 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).

         The Ninth Circuit analyzes Title VII retaliation claims under the McDonnell Douglas[1]burden-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.


         Plaintiff, 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.

         In 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 the trigger.

         In 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.

         Defendant 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.

         Shortly 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 ...

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