A 9th Circuit U.S. Court of Appeals panel voted to reverse and remand a decision by U.S. District Judge Ann Aiken granting summary judgment against a gay plaintiff who accused his former employer of retaliatory discharge and sexual orientation harassment in violation of Title VII of the Civil Rights Act of 1964 and the Oregon Human Rights Act. Dawson v. Entek International, 2011 Westlaw 61645 (Jan. 10, 2011). Although the court rejected Shane Dawson's argument that Judge Aiken had improperly used the McDonnell Douglas v. Green burden shifting test adopted by the U.S. Supreme Court for Title VII cases in her analysis of his Oregon state law claims, nonetheless the court found that even under the McDonnell Douglas approach, Dawson's claims raised issues of material fact that should not have been resolved through a summary judgment motion.
Dawson was hired by Entek on April 13, 2007, according to the opinion for the court by U.S. District Judge David C. Bury (sitting by designation with Circuit Judges William A. Fletcher and Raymond C. Fisher). He was hired as a temporary production line worker as part of an all-male work crew of 24 employees. His direct trainer on the job was Troy Guzon. (Dawson alleges that Guzon was his immediate supervisor, an allegation contested by Entek.) Dawson knew some of his co-workers before he was hired, and they knew he was gay. Soon after he started working, the anti-gay harassment began, mainly in the form of repeated name-calling, including by Guzon. Dawson complained, to little avail, first to Guzon and ultimately to a human resources staff member, Susan Morch. Two days after he conferred with Morch about "filing" some type of "complaint," he was fired by the company.
The ostensible reason for his firing was that he had failed to report for his work shift without calling in accord with company policy. Dawson alleges that he had called the company's general number and asked the person who answered to let his supervisor know he was taking the day off. He was suffering from stress due to the continuing harassment and just felt he needed a day away from that environment. The company's policy for an "unscheduled absence" was that the employee call one hour before the start of their shift and speak directly to a supervisor. Technically, Dawson's call failed to comply to the letter with this rule. This, the company argued, was the nondiscriminatory reason for his discharge.
Dawson filed suit in federal court alleging retaliatory discharge and hostile environment sexual harassment in violation of Title VII of the Civil Rights Act of 1964, thus establishing the court's federal question jurisdiction, and also made supplementary state law claims under the Oregon Human Rights Act, which covers retaliation, sex, and sexual orientation discrimination (expressly as of January 1, 2008), as well as a tort claim of intentional infliction of emotional distress. Part of Entek's defense to the state law claim was that the incidents here occurred before the statutory sexual orientation amendment went into effect in Oregon, but the court noted that prior Oregon case law had construed the state's sex discrimination ban to include sexual orientation, so the court rejected that defense.
Judge Aiken had found that the company had adequately rebutted Dawson's allegations with its evidence of his non-compliance with the call-in rule, but the Court of Appeals rejected this conclusion as to the retaliation and hostile environment (state) claims. Actually, it is a bit difficult to follow the court's reasoning because of some of the jurisdictional complexity. The Court of Appeals agreed with Judge Aiken that Dawson failed to allege a hostile environment on the basis of sex under Title VII. Although he tried to invoke the sexual stereotyping theory derived from Price-Waterhouse v. Hopkins to bolster his claim, the record compiled in discovery would not support such a claim because there was no credible indication that Dawson is gender-nonconforming and was being harassed because of failure to comply with masculine gender norms.
That left retaliation as his only Title VII claim and basis for federal jurisdiction. In order to make out a retaliation claim under Title VII, a plaintiff has to show that he engaged in protected activity, such as invoking the protection of discrimination law by complaining to management about discriminatory or harassing conduct, and suffered an adverse employment consequence as a result of that protected activity. Here, Dawson alleged he was discharged two days after he went to the human relations department to file his complaint about the ongoing harassment due to his sexual orientation. The analytical problem, not alluded to by the court, is that the harassment based on sexual orientation does not violate Title VII; can a plaintiff maintain a federal statutory retaliation claim when his protected activity involves complaining about harassment that violates state law but not federal law? This is an interesting question that the court does not expressly address. Instead, Judge Bury plows ahead on the assumption that complaining about sexual orientation-based harassment to the human resources department would be activity protected from retaliation under Title VII.
"Dawson engaged in protected activity when he visited Morch in human resources to discuss his treatment and file a complaint," wrote Bury. "This was a complaint to human resources staff based directly on sexual orientation discrimination. Less than 48 hours later, he was terminated from employment. Dawson had already addressed Guzon earlier in his employment about the sexual orientation discrimination he was experiencing. Because Guzon was Dawson's trainer and immediate manager, there is evidence from which a fact-finder may conclude that Guzon was Dawson's supervisor. Unqualifiedly, Dawson's discussion with Morch was a human resources contact with reference to his treatment. Entek's explanation for the discharge was the failure to comply with the no-show/no-call policy, but the timing of the two events, particularly because Dawson explained that it was the stress of his ongoing treatment at work that led to his absence, may or may not have been coincidental. . .
"Viewing the facts in the light most favorable to Dawson, the protected activity occurred at most two days before the discharge and the treatment of Dawson was a topic during both the protected activity and the discharge, as explained by the supervisor and human resources person who fired him. The gravity of Dawson's complaints coupled with the time frame are such that a reasonable trier of fact could find in favor of Dawson on his retaliation claim. The district court erred in resolving this claim by summary judgment."
As to Dawson's supplementary state law hostile environment claim, once the court concluded that Oregon law banned sexual orientation discrimination at the relevant date, the issue devolved to whether the employer could be held liable for harassment by Guzon and co-workers. Vicarious liability for discriminatory acts of a supervisor is not controversial, but in this case there is a controversy whether Guzon was a supervisor. The court of appeals found that Judge Aiken should not have resolved this on summary judgment, because Dawson had alleged facts sufficient to create a contested issue on this. Entek argues Guzon was a trainer but not a supervisor, so a context for trial is set up on this point.
On the co-worker issue, employers are not liable for co-worker harassment unless it is reported to management which then fails to take effective steps. A company has a defense if it has an anti-harassment policy that is potentially effective at dealing with the issue but the employee fails to invoke the policy. In this case, Judge Bury pointed out, the issue may once again turn partially on Guzon's status, since Dawson presented evidence that he complained to Guzon about the problem and Guzon failed to resolve it, not only ignoring the complaint but joining in the discriminatory conduct. The only action Entek took in response to Dawson's complaint seems to have been discharging Dawson, although it also alleged that it had done some counseling of employees concerning harassment. Bury observes that Entek took no disciplinary action against any of the alleged perpetrators of this harassment, so once again, there are contested issues and Dawson should not have suffered summary judgment.
The court of appeals did affirm Aiken's conclusion that Dawson had not alleged facts sufficient to sustain a state law tort claim of intentional infliction of emotional distress. The usual crabbed construction of this potential tort action seems to apply in Oregon, where a situation like the one described by Dawson, in which an alleged supervisor and co-workers continuously tormented a gay employee with homophobic slurs, is held by the court to be non-actionable because insufficiently outrageous.
The bottom line, however, is that the court has revived Dawson's case against Entek on the retaliation (federal and state) and hostile environment (state) claims, and since the federal retaliation claim remains in the case, federal jurisdiction continues and the case can be remanded to the district court for trial (or settlement at the instance of Entek's liability insurer, perhaps). If there were no federal claim in the case after disposition on summary judgment, most federal trial courts would routinely dismiss the supplementary state law claims, no matter how potentially meritorious, for lack of federal jurisdiction. Of course, it is arguable that Dawson should have sued in state court to begin with, since an Oregon trial court would be bound by prior state appellate precedent on sexual orientation discrimination, and the Oregon statute also has a reasonably robust anti-retaliation provision; by raising only state law claims, he could avoid removal to federal with any resulting waste of time and resources battling about such federal issues as the McDonnell Douglas test.
Oregon attorneys Kevin T. Lafky and Haley Percell of Lafkey & Lafkey (Salem) represent Dawson on the appeal. Patricia K. Runkles-Pearson and Dennis Westlind of Stoel Rives LLP (Portland) represent the employer.