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Mays v. United Association Local 290 Apprenticeship and Journeymen Training Trust Fund

United States District Court, D. Oregon, Portland Division

September 4, 2019

IVERY MAYS, an individual, Plaintiff,


          John V. Acosta United States Magistrate Judge


         Plaintiff Ivery Mays ("Mays") brings this employment lawsuit against defendant United Association Local 290 Apprenticeship and Journeymen Training Trust Fund also referred to as Local 290 Training Center ("Training Center") and defendant Claire Shropshire ("Shropshire") (collectively referred to as "Defendants") arising from a prior employment relationship. Mays alleges claims of discrimination and retaliation in violation of 42 U.S.C. § 1981 and Oregon's Unlawful Employment Discrimination statute, ORS 65 9A. 030; aiding and abetting in violation of ORS 659A.030(1)(g); and Intentional Interference with Economic Relations ("IIER") under Oregon common law. Defendants move for summary judgment on all claims. For the reasons stated below, Defendants' motion is denied as to Mays's claims of discrimination and retaliation. Defendants' motion is granted as to Mays's claims of aiding and abetting and IIER.


         I. Mays's Employment History

         Mays enrolled as a steamfitter apprentice, one of four classifications of apprentices, with the Training Center's apprenticeship program in 2011. (Def. Mot. Summ. J., ECF No. 89 ("Def. Mot.") at 3.)[1] The steamfitter apprenticeship "generally takes five years to complete, consisting of 10 terms of classroom training, and 8, 000 training hours of actual work experience in the field with approved 'training agents' (union employers)." (Def. Mot., at 3.) Mays was an apprentice with the Training Center from June 2011 until his graduation from the program in 2017. (Decl. of David Sheridan, ECF No. 91 ("Sheridan Decl.")¶ 8.) Mays worked from November 23, 2011, through June 3, 2014, for Harder Mechanical Contractors, Inc. ("Harder"), one of the Training Center's largest union employers. (Compl., ECF No. 1 ("Compl.") | 27; Decl. of Robert Meyer ("Meyer Decl."), ECF No. 101 Ex. 5 at 2; Am. Decl. of Allyson S. Krueger, ECF No. 93 ("Krueger Am. Decl") Ex. 2 ("Mays Dep.") at 14.)

         While working for Harder, Mays, the only African-American employee on site, worked at the Wafer-Tech site in Camas, Washington ("Wafer-Tech"). (Compl., ¶11; Decl. of Ivery Mays, ECF No. 100 ("Mays Decl") Ex. 2 at 1.) In late January 2013, "Mays discovered a hangman's noose taped to inside of the door of the locker" while carrying out his normal duties of cleaning out certain lockers while at Wafer-Tech, and he subsequently forwarded photos of the noose to Harder management as part of his effort to report the incident. (Compl., ¶ 12; Mays Deck, Ex. 2 at 1.) Mays reported the incident to a Harder management employee, a foreman, and a site superintendent, but the site superintendent responded by stating that Mays was "blowing things out of proportion." (Compl., ¶ 14-15.) Mays also informed the general superintendent, Kevin Lucas ("Lucas"), who oversaw Wafer-Tech, of the noose incident. (Compl, ¶ 16.) Harder ultimately discovered that a Harder management employee, Grant Marboe ("Marboe"), made and taped the noose to the door of the locker. (Compl., ¶ 20; Meyer Deck, Ex. 4 ("Lucas Dep.") at 5, 9.) Following the discovery of Marboe's conduct, Mays was assigned to sites alongside Marboe despite Mays's voiced concerns about working with Marboe. (Compl., at ¶ 21-22; Mays Deck, ¶ 16.) Ultimately, Mays was transferred to a different location. (Mays Decl., ¶ 17.)

         While employed at Harder, Mays filed complaints related to the noose incident with the Oregon Bureau of Labor and Industries ("BOLI"), Equal Employment Opportunity Commission ("EEOC"), the local Union, and the Washington Human Rights Commission. (Compl., ¶ 24; Mays Decl., Ex. 3, 4.) Mays also filed suit against Harder on May 26, 2015. (Compl., ¶ 31; Mays Decl, ¶ 22.) Although Mays heard from other Union employees that the lawsuit would strain the relationship between Harder and the Training Center, Mays spoke with Shropshire on a phone call where she was angry at his decision of retaining counsel in relation to the Harder suit. (Krueger Decl., Ex. 2 at 19-20, 26.) As a result of stress and anxiety from working with Marboe after the noose incident, Mays took a medical leave of absence in early 2014. (Mays Decl., ¶ 19.) Two days after returning from his medical leave of absence, Harder fired Mays on June 3, 2014. (Mays Decl, 120; Meyer Decl, Ex. 4 at 6.) Mays was not aware of any difficulties with his eligibility to work at Harder until after he reported finding the noose. (Mays Decl, ¶18.)

         Following his termination from Harder in June of 2014, Mays was never again dispatched to Harder. (Mays Decl, ¶ 21.) Rather, Mays was dispatched by the Training Center to the following contractors: Carr Electrical Tech, Inc. also referred to as QPS ("CETI/QPS") from July 10, 2014, through January 9, 2015, and November 11, 2015, through February 22, 2016; Temp Control Mechanical ("TCM") from March 21, 2016, through October 28, 2016; and Apollo Mechanical ("Apollo") from December 12, 2016, through the end of Mays' apprenticeship in 2017. (Mays Dep., at 14-15.) Mays claims he was denied work with Harder because Shropshire was not dispatching Mays in accordance with the general dispatch policy.[2] (Pl Resp. to Def. Mot. for Summ. J., ECF No. 99 ("Pl Resp.") at 12.) Although parties do not dispute the dispatch policy controls, they do dispute whether Shropshire dispatched Mays in accordance with the policy.

         II Shropshire's Dispatching Process

         From June 2013 through September 2016, Shropshire was the Director of Training for the Training Center, and she was responsible for overseeing the apprenticeship training program and dispatching apprentices to job assignments with union employers. (Def. Mot., at 4.) As part of the apprenticeship program, the Training Center dispatched apprentices to various union employers. (Def. Mot., at 3.) The purpose of the dispatching process was to "facilitat[e] the training of an [apprentice" by matching the apprentice with an appropriate union employer. (Decl. of Clare Shropshire, ECF No. 92 ("Shropshire Decl") ¶ 7-8, Ex. 1.)

         Shropshire described the general dispatch policy in the following manner: First, a union employer submitted a request for a certain number of apprentices within a geographic job location and with specified job criteria. (Def. Mot., at 4.) Union employers could specify whether any special skills or certifications were required for the position. (Def. Mot., at 4.) After the Training Center received a request from a union employer, Shropshire would consult a computer generated "out of work" or "Dispatch List" of apprentices who were seeking work. (Def. Mot., at 4-5.) The Dispatch List comprised apprentices who had been laid-off from a job and had returned to the Local 290 Union hiring hall to sign onto the Dispatch List. (Shropshire Decl., ¶ 14.) Local 290 created Dispatch List, but Shropshire still retained discretion to edit the Dispatch List. (Meyer Decl., Ex. 2 at 3-4; Shropshire Decl., ¶ 14; Meyer Decl., Ex. 3 at 5-6). The Dispatch List was dated when it was printed, not when it was generated from the computer program. (Meyer Decl., Ex. 3 at 5.) Prior to July 2014, Shropshire would notify the Union Hall of the apprentice to be dispatched to a job, and the apprentice would be dispatched from the Hall. (Meyer Decl., Ex. 3 at 6.) After July 2014, however, Shropshire had the responsibility to both select and dispatch the apprentice from the Training Center. (Meyer Decl., at 6, 11.)

         Once an apprentice is on the Dispatch List, they would generally be dispatched on a "first in-first out basis." (Shropshire Decl., ¶ 17.) This meant that the apprentices who had been out of work the longest were at the top of the list and "would generally be put back to work first, assuming they were qualified for the position being filled." (Shropshire Decl., ¶ 18.) However, Shropshire's secretary, Erin Macauley ("Macauley"), testified that an apprentice's number did not necessarily correspond to their position on the list. (Meyer Decl., Ex. 3 at 8.) Moreover, there were many reasons why the first apprentice on the Dispatch List would not be dispatched to the next available job. (Shropshire Decl., ¶ 20.) For example, if the apprentice at the top of the list did not have the right classification, or necessary certification, Shropshire would have to move to the next person on the list. (Shropshire Decl., ¶ 20.)

         Geographic preferences also played a role in whether Shropshire followed the "first in-first out" rule. When an applicant applies to the apprenticeship training program, they indicate which "regions" or "zones" within Local 290's region they would be willing to work. (Shropshire Decl., ¶ 22; Shropshire Decl., Ex. 5.) Apprentices are also able to "designate additional zones at the time of each layoff." (Shropshire Decl., ¶ 22.) If a union employer requested apprentices for a job in a particular region, depending on the regions an apprentice selects, that could "result in an apprentice being dispatched ahead of a qualified apprentice higher on the out-of-work list who had not selected" that particular region. (Shropshire Decl, ¶ 23.)

         Another factor Shropshire cites as an exception to the general policy is an apprentice's ability to pass a background check and obtain a security clearance. (Shropshire Decl., ¶ 25.) Some union employers require apprentices to pass a background check in order to receive a green badge. (Shropshire Decl., ¶ 25.) For example, "[u]nder Intel's policy, a worker could not pass a background check and receive a green badge if the worker had certain felony or misdemeanor convictions within the past 7 years." (Shropshire Decl., ¶ 25.) The term "green badge" was used synonymously with being able to pass a background check. (Shropshire Decl., ¶ 28.) More specifically, a "green badge" granted access to the most secured areas of the construction project, a privilege also referred to as "inside the fence." (Shropshire Decl., Decl., ¶ 29.) A "red badge," on the other hand, only granted access to the unsecured portion of the project site, a privilege also referred to as "outside the fence." (Shropshire Decl., ¶ 27.) "[A]ny union employer who was involved in a construction project 'inside the fence' at Intel was required to ensure that an apprentice ... had passed a background check and was capable of obtaining a green badge so they could fully access the site." (Shropshire Decl., ¶ 29.) However, the responsibility of conducting these background checks was on the union employer. (Shropshire Decl., ¶ 29; Meyer Decl., Ex. 3 at 11.) Moreover, an adverse background check was not absolutely preclusive, e.g. "[a]ccess to Intel facilities is a privilege that may be granted at Intel's discretion upon request----" (Shropshire Decl, Ex. 8.)

         Shropshire had "a practice of indicating 'no green badge' or 'no Intel' on the out-of-work list under the 'comment' column [of the Dispatch List] if an apprentice was not able to pass a background check." (Shropshire Decl, ¶ 31.) Shropshire would take dispatch decisions that involved a deviation from the general policy to her supervisors. (Meyer Decl., Ex. 2 at 31-32.) For example, Shropshire consulted with supervisors whether a particular apprentice could retain his previous spot after being dispatched a week earlier because "it didn't seem right to put him all the way at the bottom of the list again." (Meyer Decl., Ex. 2 at 31.) However, Shropshire could exercise discretion to edit the list that would affect the dispatch process. (Meyer Decl., Ex. 2 at 16-17, 59.) Notably, Shropshire edited a note next to Mays's name that originally indicated "Intel Only" to "No Intel." (Meyer Decl., Ex. 2 at 15-16.) The former note appeared on a Dispatch List dated June 24, 2014, and an edit appeared on a Dispatch List dated June 25, 2014. (Meyer Decl., Ex. 2 at 36, 39.) Shropshire testified that she mis-wrote the former note regarding Mays. (Meyer Decl., Ex. 2 at 16.)

         Mays was not dispatched to Harder, Macauley testified, because Jennifer Massey ("Massey"), a Harder employee, placed Mays on a "no call list." (Meyer Decl, Ex. 3 at 4.) Macauley also testified that Mays was not to be dispatched to Harder because "he had legal issues with [Harder]" and because "he couldn't qualify for their primary job site out at Intel." (Meyer Decl, Ex. 3 at 4.) After the noose incident at Harder, Shropshire said that Mays working for Harder would "never happen" "[b]ecause all the problems that he caused," and that he "was lucky to still even be an apprentice." (Meyer Decl, Ex. 3 at 4.) In approximately July or August of 2014, Shropshire said that Mays' "black ass would never work at Harder Mechanical again." (Decl of Allyson S. Krueger in Support of Def. Mot. for Summ. J., ECF No. 93 ("Krueger Decl") Ex. 4 at 8.)[3] Shropshire also used the term "black ass" in reference to the African-American members of the Training Center. (Krueger Decl, Ex. 4 at 9-10.) Specifically, Shropshire stated in the spring of 2015 that "[t]heir black asses can't keep up with the rest of the membership" referring to the African-American members's "workability," "ethic," and "whether or not they were qualified for the same types of jobs that their counterparts in the membership were" qualified to obtain. (Krueger Decl, Ex. 4 at 10.) Shropshire also used "black ass" to call her black dog into the house. (Meyer Decl, Ex. 3 at 10.) Shropshire expressed reservations about calling her black dog a "black ass" for fear that her neighbors would presume that she was "a racist living in their nice neighborhood because she would regularly yell that out into the neighborhood." (Meyer Decl, Ex. 3 at 10.)

         III. Harder dispatches during October 2015 and March 2016

         Regarding any apprentice requests from Harder while Mays was on the Dispatch List, there are only two relevant time periods: October 2015 and March 2016. Dispatches during these time periods will be discussed in turn.

         A. October 9, 2015, Dispatch

         On October 9, 2015, Shropshire received a telephone request "from Harder for an apprentice with a Ua41 tig weld certification." (Supp. Decl. of Clare Shropshire, ECF No. 112 ("Shropshire Supp. Decl.")¶ 3; Meyer Decl., Ex. 2 at 40-44.) Shropshire determined that Jordan Alwert ("Alwert") was eligible to be dispatched ahead of other Region One apprentices, including Mays, because the request was specifically for an apprentice with a weld certification that Alwert had. (Shropshire Supp. Decl., ¶ 4-5.) Another apprentice with a weld certification, Georgiy Kirchev ("Kirchev") was not dispatched because he was previously terminated for cause from Harder and "was not eligible to be re-dispatched to Harder at [that] time." (Shropshire Supp. Decl., ¶ 6.) There was no documentation that the request specified a weld certification specification. (Meyer Decl., Ex. 2 at 40-44.)[4] Mays was the "seventh apprentice down on the list of Region [One] apprentices eligible for dispatch." (Shropshire Supp. Decl., ¶ 7.)

         B. October 20, 2015, Dispatch

         On October 20, 2015, Shropshire received a dispatch request from Harder for two apprentices to the Port Westward site; in response, Shropshire dispatched Nick Keser and Sean Bums. (Shropshire Supp. Decl., ¶¶ 9-10.) Although Shropshire originally treated the Port Westward site as Region Three, Shropshire testified that she made a mistake in making that determination and that Port Westward should have been treated as Region One for purposes of dispatching. (Shropshire Supp. Decl.¶ 10; Meyer Decl., Ex. 2 at 48-50.) Had Port Westward been correctly treated as a Region One site, Justin Turner ("Turner") and Zachary Garrett ("Garrett") would have been dispatched. (Shropshire Supp. Decl., ¶ 12.) Tuner and Garrett were the first two available Region One apprentices and were ahead of Mays at the time of the October 20 request. (Shropshire Supp. Decl., ¶ 12.) Other apprentices listed ahead of Mays were not eligible to be dispatched because they were not available, as indicated by Shropshire's note of "TC" next to their names. (Shropshire Supp. Decl., ¶ 11.)

         C. October 22, 2015, Dispatch

         On October 22, 2015, when Shropshire originally received a dispatch request from Harder for four apprentices to the Intel-Ronler Acres site, she began dispatching the next available apprentice, Turner. (Shropshire Supp. Decl., ¶ 14.) Lucas, a Harder managerial employee, however, changed the request from four to three apprentices documented in an email to Shropshire on October 22, 2015. (Meyer Decl., Ex. 9 at 9-10.) Shropshire dispatched Turner, which took Turner's name off the Dispatch List, prior to receiving the change from Lucas. (Shropshire Supp. Decl., ¶ 15.) To indicate Turner's position on the Dispatch List on the day she received the request, Shropshire handwrote Turner's name on the top of the October 23, 2015, Dispatch List along with his previous position on the list, fourth, and dating the handwritten addition as "10-22-15." (Meyer Decl., Ex. 2 at 59.)

         The available apprentices and their positions on the October 23, 2015 Dispatch List were: Zachary Garrett ("Garrett"), tenth; Brick, eleventh; Lance Ziesing, ("Ziesing") twelfth; Steven Hooper ("Hooper") thirteenth; and Mays, fourteenth. (Meyer Decl., Ex. 2 at 54.) Ultimately, Shropshire dispatched Turner, Ziesing, and Brick to Harder to the Intel-Ronler site. (Meyer Decl., Ex. 2 at 51-54, 67; Shropshire Supp. Decl., ¶ 16.)[5] By this time, Mays had already worked for CETI/QPS, who assigned Mays to a jobsite at Intel, and had received a green badge. (Mays Decl., ¶ 24; Meyer Decl., 24, Ex. 1 at 3-4.)

         D. October 29, 2015, Dispatch

         Harder sent their next dispatch request to Shropshire on October 29, for one steamfitter apprentice to the Leupold & Stevens site. (Meyer Decl., Ex. 2 at 63.) However, unlike the other dispatch requests, the October 29 request specifically mentioned that the employee must be able to pass a background check. (Meyer Decl., Ex. 2 at 63.) In response, Shropshire dispatched Hooper, who was directly ahead of Mays. (Meyer Decl., Ex. 2 at 60, 64.) Mays still had "No Green Badge" next to his name on the dispatch list at the time of request on October 29. (Meyer Decl, Ex. 2 at 64.)

         E. Early March 2016 Dispatches[6]

         Harder dispatch requests were received while Mays was on the Dispatch List during March 2016. (Meyer Decl, Ex. 10 at 10.) Shropshire dispatched eight apprentices to Harder between March 8 and March 14. (Meyer Decl, Ex. 10 at 1-8.) A dispatch request form dated March 14, 2016, requested three apprentices. (Meyer Decl., Ex. 10 at 9.) As of March 15, 2016, Mays was number seven on the Dispatch List. (Meyer Decl., Ex. 10 at 10.) At approximately 11:00 a.m. on March 15, 2016, Lucas emailed Shropshire asking, "Can we talk before you dispatch folks??" Later that same day, Lucas informed Shropshire by email that "[Harder had] no plans for bringing on any new apprentice" the following week. (Meyer Decl., Ex. 10 at 12.) Two days later, on March 17, 2016, Mays was dispatched to TCM. (Meyer Decl, Ex. 10 at 13.) At that time, Mays was listed as number four on the Dispatch List, and the "No Green Badge" is not reflected in his comment section on the dispatch list. (Meyer Decl., Ex. 10 at 14.) Mays had received a "green badge" on three other separate occasions: first, when he started working with CETI/QPS in approximately July of 2014; second, when he was dispatched back to CETI/QPS in November of 2015; and third, when he was dispatched to Apollo in December of 2016. (Meyer Decl., Ex. 1 at 3-4.) Mays testified that he told persons at the Training Center, including Shropshire, that he was able to pass a background check and receive a green badge. (Krueger Decl., Ex. 2 at 5.)[7]

         F. March 24, 2016, Dispatch

         On March 24, 2016, in response to a March 24, 2016 dispatch request, Nicolas Martin ("Martin"), Kierchev, and Tyler Huck ("Huck") were dispatched to Harder. (Meyer Decl., Ex. 10 at 16-22.) Martin, in the number three position on the Dispatch List, was directly ahead of Mays on March 17, 2016, when Mays was dispatched to Temp Control Mechanical ("TCM"). (Meyer Decl., Ex. 10 at 14.)

         As of March 21, 2016, Martin was third on the list, and Kierchev and Huck were seventh and eighth, respectively. (Meyer Decl., Ex. 10 at 24.) There were no typed or handwritten notes to indicate the Region One apprentices ahead of Mays were unavailable. (Meyer Decl., Ex. 10 at 24.) After Mays's work with TCM ended, Mays was then dispatched to Apollo on December 12, 2016 where he worked until he graduated from the apprenticeship program. (Mays Dep., at 14-15.)

         Preliminary Procedural Matters

         Defendants object to several portions of the declarations and exhibits Mays offers in his Response to Defendants' Motion for Summary Judgment. Local Rules of Civil Procedure provide:

Rather than filing a motion to strike, a party must assert any evidentiary objections in its response or reply memorandum. Evidentiary objections in a response or reply memorandum are subject to the certification requirement of LR 7-1(a) . . . . If an evidentiary objection is raised by the moving party in its reply memorandum, the non-moving party may file a surreply memorandum pursuant to this subparagraph within seven days addressing only the evidentiary objection; the moving party may not file further briefing on its evidentiary objection.

         Local Rule 56-(1)(b). Each objection will be discussed in turn.

         I. Objections to Mays's Declaration

         Defendants object to the admission of ¶¶ 23, 27, 28, and 30 of Mays's declaration, arguing they are inadmissible under Federal Rule of Evidence ("FRE") 602, which provides that "[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence used to establish personal knowledge may consist of a witness's own testimony." FED. R. EVID. 602.

         A. Paragraph 23

         The evidence in ¶ 23 states the following:

Green badges are required to work at some jobsites. Each jobsite has its own requirements to obtain a green badge. The jobsite is responsible for approving green badges, not the contractor. Intel requires workers to attend an orientation and pass a background check in order to obtain a green badge.

(Mays Decl., ¶ 23.) Defendants argue this paragraph is inadmissible because Mays does not have personal knowledge of how green badges are approved. FED. R. EVID. 602. Plaintiff responds, without elaboration or specifying where in the record, that "[e]vidence used to establish[] personal knowledge may consist of a witness's own testimony." FED. R. EVID. 602. For the following reasons, Defendants' objection to ¶ 23 is sustained in part and overruled in part.

         Supporting testimony was offered in Mays's deposition. (Mays Dep., at 2-4.) In his deposition, Mays testified to obtaining a "green badge" at Intel, which required passing a background check. This is direct support of the first and third sentences in the paragraph. Accordingly, the first and third sentences are admissible, and Defendants' objection is overruled to this extent.

         The second sentence - "jobsite is responsible for approving green badges, not the contractor" - is not supported by personal knowledge. Mays's statement also could not be admissible as opinion of the witness. See United States v. Abel, 469 U.S. 45, 56, 105 S.Ct. 465 (1984) (stating that "there is no rule of evidence which provides that testimony admissible for one purpose and inadmissible for another purpose is thereby rendered inadmissible; quite the contrary is the case."); FED. R. EVID. 701.[8]

         Mays testified that he applied for a "green badge" at an Intel jobsite and that he received a determination regarding a "green badge" within hours. (Mays Dep., at 4-5.) Mays's statement that jobsites in general are responsible for the background check is not rationally based on his perception, because he submitted his information for a green badge only at the Intel site or to employers that sent him to Intel. His statement that he acquired a green badge for work at the Intel worksite does not support his assertion that jobsites in general are ...

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