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Baker v. Gladstone Auto, LLC

United States District Court, D. Oregon, Portland Division

July 19, 2019

ROBERT BAKER, Plaintiff,
v.
GLADSTONE AUTO, LLC, Defendant.

          OPINION AND ORDER

          MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE

         On April 18, 2019, Magistrate Judge Jolie A. Russo issued her Findings and Recommendation (F&R) [48], recommending that I grant in part and deny in part Defendant Gladstone Auto's Motion for Summary Judgment [34]. Gladstone Auto filed Objections to the F&R [50] and Plaintiff Robert Baker filed a Response [52]. For the reasons stated below, I adopt the F&R in part and grant Gladstone Auto's Motion for Summary Judgment [34] 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.

         DISCUSSION

         The 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. § 636(b)(1)(C).

         Judge Russo recommended that I deny Gladstone Auto's Motion for Summary Judgment [34] 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 [48] at 22. Gladstone Auto objected to these recommendations.

         A. Constructive Discharge

         With 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. [50] 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 [48] 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.

         Judge 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 [48] 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. [50] 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 retaliatory.

         1. The Faragher-Ellerth Affirmative Defense

         Constructive 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 [48] 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. [41] 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").

         2. Retaliation

         Whether 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 [48] 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.

         To 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 [48] 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 [34] on Mr. Baker's retaliation claims (Claims Three and Four).

         B. Hostile ...


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