Higuera v. City of Portland

FRANK HIGUERA, Plaintiff, v. CITY OF PORTLAND, a municipal corporation,and EILEEN ARGENTINA, an individual, Defendants.

Case No. 3:18-cv-1083-SI

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

May 8, 2020

OPINION AND ORDER

Judy Danielle Snyder and Holly Lloyd, LAW OFFICES OF JUDY SNYDER, 1000 SW Broadway, Suite 2400, Portland, OR 97205. Of Attorneys for Plaintiff.

Anne Milligan and Michael J. Jeter, Deputy City Attorneys, PORTLAND CITY ATTORNEY'S OFFICE, 1221 SW 4th Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendants.

Michael H. Simon, District Judge.

Plaintiff Frank Higuera ("Higuera") filed a lawsuit in state court against Defendants City of Portland ("City") and Eileen Argentina (collectively, "Defendants"). Plaintiff asserts claims under Oregon Revised Statutes ("ORS") § 659A.030(1)(a) and 42 U.S.C. §§ 1981 and 1983, alleging that Defendants discriminated against and refused to hire Plaintiff because of his color; specifically, that he is too pale. Defendants timely removed this case to federal court. Defendants now move for summary judgment against all of Plaintiff's claims. For the reasons discussed below, Defendants' motion is granted.

STANDARDS

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).

BACKGROUND

Plaintiff is a resident of Oregon. His stepfather, who adopted Plaintiff, is Hispanic. Plaintiff alleged in his original complaint that he was a "light skinned Hispanic male." After counsel for Defendants raised concerns with Plaintiff's counsel that this allegation was not true, Plaintiff amended his complaint. Plaintiff's Amended Complaint alleges that he "identifies as a Hispanic male."

Beginning in 2011, the City hired Plaintiff as a seasonal maintenance worker with the City's Parks and Recreation Department, working from March through October of each year. OnFebruary 12, 2018, Plaintiff began working full time for the City in a Utility I position. He was hired for that position in January 2018. His duties in both the seasonal maintenance worker and Utility I positions are essentially the same. He maintained City parks by cleaning restrooms, emptying trash containers, picking up debris, and performing landscaping maintenance. Plaintiff's allegations involve his difficulty getting hired in other positions, particularly positions involving working with at risk youth.

Since 2014, Plaintiff has applied for numerous positions in the City's Parks & Recreation Department. Defendant Eileen Argentina is the Parks & Recreation Services Manager and has ultimate authority over hiring decisions in the department. Plaintiff complains about Defendants' failure to hire him in several positions.

A. Recreation Coordinator I - At Risk Youth

The first position for which the City's hiring decisions are challenged by Plaintiff is Recreation Coordinator I - At Risk Youth Outreach, examination plan number 2015-00454. Plaintiff applied for this position in October 2015. He was interviewed for this position on February 1, 2016. Plaintiff contends that the position was converted to two vacancies, which were filled by two African American males in February 2016. In July 2016, a new recruitment was issued from this examination plan number for another Recreation Coordinator I - At Risk Youth Outreach position. On August 22, 2016, the City hired Yvette Mata for that position.

Ms. Mata's application materials indicate that she is a heritage speaker of Spanish, reads and writes Spanish, has a Bachelor of Arts degree in English and Mexican American Studies, and has a Master of Arts degree in Education Leadership and Policy Studies. ECF 60-6 at 3. Her listed experience includes that she was the Director of Community Outreach and Teens at YMCA Dallas Metro in Dallas, Texas from 2013-14 and was a Student Development Specialistat the University of Texas at San Antonio and Alamo Colleges from 2001-12. Id. Ms. Mata is Latina.

By comparison, Plaintiff's only listed relevant experience was volunteer work. For example, Plaintiff listed: (1) volunteering at a nonprofit family housing shelter for 18 years; (2) running an Easter Egg hunt for 13 years; (3) working as an advisor for a high school LaCrosse team for four years; serving as an advisor at a high school Latino club for four years; and several other high school volunteering and coaching positions. ECF 33-12. Plaintiff did not list any dates for his volunteer experiences, leaving hiring personnel to guess at how recent or remote in time they occurred. His volunteer experiences mainly were at Rex Putnam High School and Milwaukie High School. Plaintiff also had professional work experience at both of those high schools. His resume shows that he last worked at Rex Putnam High School in 2008 and Milwaukie High School in 2001. Plaintiff did not list any post-secondary school education.

Plaintiff also challenges the filling of a position at the Mt. Scott Community Center. Jeff Milkes, a zone manager, approached Plaintiff about a temporary Recreation Coordinator I position at this location. Mr. Milkes then introduced Plaintiff to Craig Vanderbout, a supervisor at the Mt. Scott Community Center. Plaintiff, Mr. Milkes, and Mr. Vanderbout talked over coffee. It was not a job interview, but an introductory meeting. ECF 39 at 3 (Milkes Decl. ¶ 11). Plaintiff remembers this meeting as taking place in March 2016. ECF 51 at 6-7 (Plf's Decl. ¶ 19). Mr. Vanderbout did not recall when this meeting took place, but assumed that it must have occurred in 2012, the only time that the Mt. Scott Community Center had a vacancy for a teen Recreation Coordinator position. That vacancy was filled by Ms. Madalyn Bach, a white female. Mr. Milkes, however, stated that this meeting took place in 2016. ECF 52 at 2 (Milkes Decl. ¶ 2). Karen Birt, a recreation supervisor with the City, recalls that Ms. Bach was hired in 2011, 2012,or 2013, before Ms. Birt became the formal supervisor for the Mt. Scott team, but while she was a recreation supervisor for the City. ECF 48-5 at 8 (Birt Dep. 49:10-21).

Ms. Birt also testified that there was a vacancy at Mt. Scott in 2016, but the position was filled by the transfer of Ryan Fitzpatrick, an existing Recreation Coordinator, into a permanent position, and that there was no temporary hire. Id. (Birt Dep. 48:4-49:9); see also ECF 35 at 4 (Birt Decl. ¶ 14). Mr. Milkes also testified that Ms. Argentina told him that an existing permanent recreation coordinator would be laterally moved into the Mt. Scott vacancy in 2016. ECF 39 at 3 (Milkes Decl. ¶ 14); see also ECF 52 at 2 (Milkes Decl. ¶ 5) (testifying that in 2016 Ms. Argentina explained "that the Mt. Scott position would be used to transfer an existing Teen Coordinator"). Mr. Fitzpatrick is a white male. ECF 35 at 4 (Birt Decl. ¶ 14).

B. Recreation Leader - Teen

Plaintiff applied for a Recreation Leader - Teen position from examination plan number 2017-00225 on April 30, 2017. The application process for this position was anonymized. ECF 35 at 3 (Birt Decl. ¶¶ 6-9); see also ECF 33-8 at 3. Ms. Birt, the hiring manager of this position, had a panel review and rate the candidate's responses from the questions. She anonymized the process by redacting the candidates' names. The review panel scored the anonymous responses without knowing the names of any of the candidates. Those with the highest scores were invited to interview. Plaintiff was not among the top scorers and was not invited to interview.

The City hired Michella Apodaca-Johnson for this position on September 19, 2017. Ms. Apodaca-Johnson's application materials showed that she started a non-profit, Selfie Sessions, and worked there for one year. In that role she advocated for self love, self awareness, and self confidence in teen women. She partnered that nonprofit organization with Boys and Girls Club of America. She also created a workshop for teen women. Additionally, she had sixyears' experience working as a preschool teacher. She had post-secondary education at Shoreline Community College focused on Early Childhood Education and Creative Writing and Journalism. ECF 34-2 at 4. Plaintiff listed the same volunteer and coaching experience that he listed in his application for the Recreation Coordinator I - At Risk Youth position.

C. Recreation Coordinator I - Teen Service Outreach Specialty

Plaintiff applied for the position of Recreation Coordinator I - Teen Service Outreach Specialty from examination number 2017-00733 in December 2017. He was not interviewed for any position from this examination number.

The City hired Harold Ridge on May 31, 2018 and Andre Channel on June 11, 2018 from this examination number. Mr. Ridge's application materials show that he had worked from 1990-94 as a Recreation Leader - Camp Coordinator at Mt. Scott Community Center and from 1994-2017 as a Recreation Coordinator...