Jefferson v. Fed. Express Corp.

CORNELIUS JEFFERSON, Plaintiff, v. FEDERAL EXPRESS CORPORATION Defendant.

No. 3:20-cv-01314-HZ

United States District Court, D. Oregon

October 23, 2021

Aaron W. Baker

Serena Liss

BAKER LAW PC

Attorneys for Plaintiff

Brian K. Coleman

Christopher M. Ahearn

Gabriel Paul McGaha

Joseph Reafsnyder

FEDERAL EXPRESS CORPORATION

Michael G. McClory

CABLE HUSTON LLP

Attorneys for Defendant

OPINION & ORDER

MARCO A. HERNÁNDEZ United States District Judge

Plaintiff Cornelius Jefferson brings this unlawful employment practices action against his former employer, Defendant Federal Express Corporation, under both federal and state law. Plaintiff alleges that Defendant and its managers discriminated and retaliated against Plaintiff based on his race, which resulted in Plaintiff's constructive discharge. Defendant now moves for summary judgment, arguing that (1) all Plaintiff's claims are barred by a six-month contractual limitations period set forth in Plaintiff's employment agreement and (2) Plaintiff has failed to demonstrate a prima facie case for (a) discrimination under 42 U.S.C. § 1981, (b) hostile work environment under 42 U.S.C. § 1981, and (c) retaliation under 42 U.S.C. § 1981 and Or. Rev. Stat. § (“O.R.S.”) 659A.199. For the reasons discussed below, the Court grants Defendant's Motion for Summary Judgment and dismisses this case with prejudice.^[1]

BACKGROUND

Plaintiff began working for Defendant as a part-time material handler in 2018. Pl. Dep. 30:22-24, ECF 28-1; Liss Decl. Ex. 2 at 1, ECF 33-2. In April 2019, Plaintiff bid on and received an offer for a full-time courier position. Liss Decl. Ex. 2 at 8; Liss Decl. Ex. 4 (“Hanssen Dep.”) 13:1-8, ECF 33-4. The offer was “contingent upon successful completion of the FedEx Express hiring process, ” and Plaintiff was “required to successfully complete all aspects of the FedEx Express hiring process, ” or the “offer w[ould] be rescinded.” Liss Decl. Ex. 2 at 8.

As part of the hiring process, Defendant provided Plaintiff with an employment agreement.^[2] Liss Decl. Ex. 2 at 10. The employment agreement was a two-and-a-half page, single-spaced document. Liss Decl. Ex. 2 at 11-13. The agreement did not contain headings and had thirteen paragraphs. Id. The third paragraph, located on the first page in all uppercase letters, contained a six-month limitation provision for employees seeking to bring suit against Defendant:

(3) To the extent the law allows an employee to bring legal action against the company or any manager employed by the company and acting in his or her managerial capacity, I agree to bring any claim within the time provided by law or no later than six (6) months from the date of the event forming the basis of my claim, whichever expires first. I realize and acknowledge that I am agreeing to bring any claim I may have within a shorter time than may otherwise be provided by law.

Liss Decl. Ex. 2 at 11.

Plaintiff digitally acknowledged the employment agreement on April 29, 2019, by checking a box stating that, “[b]y checking this box and selection ‘OK' below, I understand that this electronic signature serves as my acceptance of the terms and conditions of the Employment Agreement presented.” Liss Decl. Ex. 2 at 7. The text of the employment agreement does not appear on the page where the employee checks the acknowledgment box; the employment agreement is only accessed by clicking on a hyperlink. Liss Decl. Ex. 2 at 5-7, 10.

Plaintiff, who is a Black man, alleges that he experienced various forms of racial discrimination while he worked at the Portland FedEx station. Pl. Dep. 76:1-3; Liss. Decl. Ex. 2 at 8. In June 2019, an employee told Plaintiff that coworkers were calling him “Black CJ.” Pl. Dep. 84:14-25. On June 8, Plaintiff called Defendant's toll-free alert line to anonymously report that he was being called Black CJ. Pl. Dep. 84:3-7; Liss Decl. Ex. 5 (“Kim Dep.”) Kim Dep. 9:22-23, 33:17-25, 34:15-17, ECF 33-5. Karla Kim, a human resources (HR) advisor, opened an internal Equal Employment Opportunity (EEO) investigation based on the call and contacted Plaintiff. Kim Dep. 35:9-12. Plaintiff admitted that he had never heard anyone call him Black CJ, and he refused to provide Kim with the names of current employees involved in the Black CJ comments. Pl. Dep. at 71:23-25; Kim Dep. 36:13-19; Pl. Dep. 84:11-13. Because Plaintiff did not provide any names of employees to corroborate his complaint, both Kim and the managing director, Howard Morgan, concluded that Plaintiff's complaint was unsubstantiated. Kim Dep. 36:6-9; Liss Decl. Ex. 15 at 1-2.

On July 23, a coworker used the word “nigger” in a conversation with Plaintiff. Liss. Decl. Exs. 17, 18. Plaintiff encountered Susanne Bush, a service assurance agent, in the breakroom. Liss Decl. Ex. 17; Liss Decl. Ex. 8 (“Bush Dep.”), at 24-25, ECF 33-8. While Plaintiff and Bush talked about political news that was on the TV, Bush asked Plaintiff something to the effect of “some people are so sensitive today, like how come you can call each other nigger, but I can't call you a nigger?”^[3] Liss Decl. Exs. 17 at 1-2, 18; Bush Decl. 27:12-16. Plaintiff emailed Kim to report what Bush said the next day. Liss Decl. Ex. 19; Kim Dep. 13:18-25-14:1-4.

Plaintiff did not report to his scheduled shift on Saturday, August 3. Pl. Dep. 100:4-12. On August 6, Plaintiff had a meeting with Ken Nelson, the operations manager, about Plaintiff's absence. Liss Decl. Ex. 22; Pl. Dep. 99:24-25-100:1-2. During the meeting, Plaintiff told Nelson about what Bush had said in the breakroom, and Nelson took Plaintiff to the senior manager, Jeff Hanssen. Liss Decl. Ex. 22. Plaintiff was asked to write a statement about his allegations, and Plaintiff wrote a two-page statement detailing his breakroom conversation with Bush. Id.; Pl. Dep. 135:9-11.

While writing the statement, Plaintiff experienced a mental breakdown. Pl. Dep. 103:7-11, 21:7. Plaintiff began to cry and told Hanssen that Plaintiff suffered from depression, had a firearm at home, and thought of self-harm in the past. Hanssen Dep. 21:7-17. Plaintiff then left the station, and Hanssen followed Plaintiff out of concern for his well-being. Hanssen Dep. 21:13-20. Hanssen and Plaintiff walked for a couple of a blocks and then went for a drive for approximately 30 to 45 minutes. Hanssen Dep. 21:21-25, 22:1-7, 23:3-5; Pl. Dep. 101:2-10. Plaintiff remained extremely emotional while in the car, so Hanssen asked Nelson to call People Help for advice. Pl. Dep. 103:7-11. People Help advised Nelson to call local emergency mental health assistance, so Nelson called the Portland Police Department's Behavioral Health Unit to respond to the Portland station. Hanssen Dep. 23:11-14. When Hanssen and Plaintiff arrived back at the Portland station, the Behavioral Health Unit transported Plaintiff to Jefferson Legacy Hospital. Pl. Dep. 105:5-7. One week later, on August 13, Plaintiff was granted medical leave for mental health reasons. Pl. Dep. 143:6-11; Liss Decl. Ex. 20 at 2.

Hanssen subsequently provided Kim with Plaintiff's written statement, and Kim opened a second internal EEO investigation. Kim Dep. 23:15-18; Hanssen Dep. 37:18-24, 38:5-12. Kim interviewed Bush, who admitted to asking Plaintiff the question regarding the use of the word nigger in the breakroom. Kim Dep. 14:21-24, 17:20-23. On August 19, Kim sent Plaintiff a letter acknowledging receipt of his discrimination complaint, stating that he would be notified when the investigation was completed. Liss Decl. Ex. 24. On October 3, Morgan issued a final internal EEO report that substantiated Plaintiff's allegations against Bush based on her admission. Liss Decl. Ex. 18. As a result, Bush was issued a warning letter for inappropriate language in the workplace. Liss Decl. Ex. 25; Kim Dep. 17:24-25-18:1-2. On October 8, Morgan sent Plaintiff a letter that the investigation had been completed. Liss Decl. Ex. 26.

On October 29, 2019, Plaintiff resigned from FedEx. Liss Decl. Ex. 27. Plaintiff's resignation email stated that he would not return to FedEx because his “doctor and counselor [didn't] think it would be healthy for [him] or [his] mental state.” Id.

Nine months after he resigned, Plaintiff initiated this unlawful employment practices lawsuit against Defendant on August 5, 2020. Compl., ECF 1. Plaintiff asserts seven claims for relief: (1)-(2) discrimination claims under 42 U.S.C. § 1981 and O.R.S. 659A.030, alleging that Defendant constructively discharged Plaintiff based on his race; (3)-(4) hostile work environment claims under 42 U.S.C. § 1981 and O.R.S. 659A.030; (5)-(6) retaliation claims under 42 U.S.C. § 1981 and O.R.S. 659A.030, and (7) a whistleblower retaliation claim under O.R.S. 659A.199. Compl. ¶ 20-46.

STANDARDS

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former Fed.R.Civ.P. 56(c)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present “specific facts” showing a “genuine issue for trial.” Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts...