United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE
April 18, 2019, Magistrate Judge Jolie A. Russo issued her
Findings and Recommendation (F&R) , recommending that
I grant in part and deny in part Defendant Gladstone
Auto's Motion for Summary Judgment . Gladstone Auto
filed Objections to the F&R  and Plaintiff Robert
Baker filed a Response . For the reasons stated below, I
adopt the F&R in part and grant Gladstone Auto's
Motion for Summary Judgment  on Claims Five and Six, the
retaliation element of Claim Seven, and Claims Eight, Nine,
and Ten. I decline to adopt the F&R, however, on the
disparate treatment elements of Claims One and Two, Claims
Three and Four, and the interference element of Claim Seven.
And on those claims I grant summary judgment.
magistrate judge makes only recommendations to the court, to
which any party may file written objections. The court is not
bound by the recommendations of the magistrate judge but
retains responsibility for making the final determination.
The court is generally required to make a de novo
determination regarding those portions of the report or
specified findings or recommendation as to which an objection
is made. 28 U.S.C. § 636(b)(1)(C). However, the court is
not required to review, de novo or under any other standard,
the factual or legal conclusions of the magistrate judge as
to those portions of the F&R to which no objections are
addressed. See Thomas v. Arn, 474 U.S. 140, 149
(1985); United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). While the level of scrutiny under which
I am required to review the F&R depends on whether or not
objections have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C.
Russo recommended that I deny Gladstone Auto's Motion for
Summary Judgment  on Mr. Baker's claims of race-based
discrimination and harassment (Claims One and Two), his
claims of race-based retaliation (Claims Three and Four), and
his claim of interference with rights under the Family and
Medical Leave Act (FMLA) (Claim Seven). F&R  at 22.
Gladstone Auto objected to these recommendations.
respect to the discrimination and harassment claims and the
retaliation claims, Gladstone Auto first argued that Judge
Russo improperly found that Mr. Baker had been constructively
discharged. Objs.  at 5-9. Judge Russo found a question
of material fact regarding whether Mr. Baker had been
constructively discharged as the result of a hostile work
environment and the lenient discipline imposed on Mr.
Baker's supervisor, Rich Stiefel. F&R  at 13-14.
Mr. Baker, who is Hispanic, alleged that Mr. Stiefel
constantly made derogatory remarks about Hispanic customers
and that supervisors at Gladstone Auto were aware of those
remarks but failed to take any action. Id.
Russo properly stated the standard for constructive
discharge: whether an employer "create[d] working
conditions that are sufficiently extraordinary and egregious
to overcome the normal motivation of a competent, diligent,
and reasonable employee to remain on the job to earn a
livelihood." F&R  at 13 (quoting Poland v.
Chertoff, 949 F.3d 1174, 1186 (9th Cir. 2007)).
Gladstone Auto argued that, even when viewing the facts in
the light most favorable to Mr. Baker, there is no evidence
of objectively intolerable working conditions. Objs.  at
7. While this issue would be dispositive if I agreed with
Gladstone Auto's argument, it is possible to determine
whether summary judgment is appropriate without addressing
whether Mr. Baker was constructively discharged. If there was
no constructive discharge, Gladstone Auto is entitled to
assert the Faragher-Ellerth defense to Mr.
Baker's harassment claims. But even if there was no
constructive discharge, I find the Faragher-Ellerth
defense inapplicable on the facts of this case. Similarly,
Mr. Baker's retaliation claims fail if there was no
constructive discharge. But assuming Mr. Baker was
constructively discharged, I find no issue of material fact
regarding the claims that the constructive discharge was
The Faragher-Ellerth Affirmative Defense
discharge is relevant to Gladstone Auto's defense on the
harassment claims because the Faragher-Ellerth
affirmative defense is only available to an employer when
"no tangible employment action was taken." F&R
 at 17 (quoting Faragher v. City of Boca Raton,
524 U.S. 775, 807 (1998)). Assuming that no tangible
employment action was taken, however, Gladstone Auto must
also show that it "exercised reasonable care to prevent
and correct promptly any harassing behavior."
Id. Mr. Baker has alleged that several of his
supervisors were aware of Mr. Stiefel's remarks but
failed to take any action to correct the harassing behavior.
See Liss Decl.  Ex. 1 at 117. Because Mr. Baker
has raised a genuine dispute regarding whether supervisory
employees of Gladstone Auto were aware of Mr. Stiefel's
discriminatory comments in the years prior to Mr. Baker's
resignation, summary judgment based on the
Faragher-Ellerth defense is not appropriate. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 288-89
(1986) (quoting First Nat'l Bank of
'Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89
(1968) ("[A]ll that is required is that sufficient
evidence supporting the claimed factual dispute be shown to
require a jury or judge to resolve the parties' differing
versions of the truth at trial").
or not Mr. Baker was constructively discharged is also
relevant to his claims that the constructive discharge was in
retaliation for complaining about Mr. Stiefel's comments
to the general manager at Gladstone Auto, David Elder. But
even assuming that Mr. Baker was constructively discharged,
his retaliation claims (Claims Three and Four) fail for two
reasons. First, there is no direct evidence that Mr. Baker
was constructively discharged as a result of complaining to
Mr. Elder. Nor is there any plausible indirect evidence, such
as a worsening of Mr. Baker's working conditions after he
complained. The only way to infer a retaliatory motive is the
proximity between Mr. Baker's complaint to Mr. Elder and
the time when Mr. Baker left his job at Gladstone Auto.
See F&R  at 18. Under these facts, where the
conditions of Mr. Baker's employment remained objectively
the same before and after the complaint, temporal proximity
alone is not sufficient to infer a retaliatory motive.
understand why the retaliation claims are implausible, it is
important to note the novelty of Mr. Baker's retaliation
claim. In a normal case on facts like those presented in this
case, an employee alleges retaliation after his employer
takes some action to punish the complaining employee. Mr.
Baker never alleges that he was punished for complaining. And
Mr. Baker was on leave from the time he complained to Mr.
Elder until his departure from Gladstone Auto, so his working
conditions did not change as a result of his complaint.
F&R  at 8. Rather than alleging that Gladstone Auto
took any action to punish him, Mr. Baker argues that
Gladstone Auto retaliated by inadequately punishing Mr.
Stiefel. Without more, and in the absence of punishment or a
deterioration in working conditions resulting from his
complaint, Mr. Baker has not presented a plausible theory of
retaliation, as opposed to a continuation of a hostile work
environment. Therefore, I grant Gladstone Auto's Motion
for Summary Judgment  on Mr. Baker's retaliation
claims (Claims Three and Four).