Lindsey v. Clatskanie People's Util. Dist.

140 F.Supp.3d 1077

Raymond Lindsey, Plaintiff,

v.Clatskanie People's Utility District, Defendant.

Case No. 3:14–cv–485–SI

United States District Court, D. Oregon.

Signed October 23, 2015

Aaron W. Baker, Attorney at Law, 888 SW Fifth Avenue, Suite 650, Portland, OR 97204; Robert K. Meyer, Attorney at Law, P.C., 888 SW Fifth Avenue, Suite 650, Portland, OR 97204. Of Attorneys for Plaintiff.

Karen M. O'Kasey and Mark C. Sherman ; Hart Wagner, LLP, 1000 SW Broadway, Suite 2000, Portland, OR 97205. Of Attorneys for Defendant.

OPINION AND ORDER

Michael H. Simon, District Judge.

Plaintiff Raymond Lindsey ("Lindsey") has sued his former employer, Defendant Clatskanie People's Utility District ("CPUD"), for religious discrimination in violation of federal and state civil rights laws, retaliation in violation of federal and state civil rights laws, whistleblower relation in violation of state whistleblower laws, and wrongful discharge under state common law. Lindsey concedes CPUD's motion for summary judgment on his religious discrimination claims. For the reasons that follow, the Court denies CPUD's motion for summary judgment on Lindsey's retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–5, and Oregon Revised Statute ("ORS") § 659.030. The Court grants CPUD's motion for summary judgment on Lindsey's whistleblower retaliation claims and common law wrongful discharge claim.

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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and quotation marks omitted).

BACKGROUND¹

CPUD hired Lindsey as an Information Technology ("IT") Supervisor in March 2011. Dkt. 27–1 at 2. Lindsey signed an Employee Acknowledgment Form, stating that he acknowledged "that the computers, telephones, software, e-mail, internet use and equipment are the property of the District, therefore workplace monitoring, surveillance of non-private workplace area may be conducted by the District." Dkt. 24–6 at 1. Greg Booth served as General Manager of CPUD at the time of Lindsey's hire and continued to do so for the duration of Lindsey's employment at CPUD. Dkt. 27–2 at 2. Booth promoted Lindsey to IT Manager in February 2012 and then to IT Director in January 2013. Dkt. 27–3 at 2. Each of Lindsey's promotions came with a pay increase. Dkt. 27–1 at 2–3.

The promotions and raises ended in May 2013. On May 7, CPUD placed Lindsey on administrative leave. Dkt. 24–4 at 12. On May 14, Lindsey received a letter notifying him of a pre-disciplinary meeting to determine if he had violated CPUD policies. Dkt. 24–8 at 1. On May 17, Lindsey attended the meeting, and CPUD terminated his employment the same day. Id. ; Dkt. 24–9 at 1.

The parties disagree about the events that led to Lindsey's termination. Lindsey asserts that CPUD fired him for opposing and reporting, in good faith, what Lindsey believed to be illegal employment practices by CPUD. According to Lindsey, his termination was part of a larger pattern or practice of retaliating against employees who opposed and reported sexual harassment by former CPUD employee Joe Taffe or other unlawful activity at CPUD. In response, CPUD states that it discharged Lindsey "for insubordination, inappropriate conduct as a Department Director, withholding critical information from [his] supervisor, violating direct orders, dishonesty, approving unauthorized expenses, deleting public records, and divulging confidential information." Dkt. 24–9 at 1. Of central importance to the parties' dispute are the conduct of Taffe and the response of General Manager Booth.

A. Complaints Regarding Joe Taffe

At the time Lindsey began working at CPUD, Taffe served as CPUD's Energy Manager. Dkt. 27–10 at 2. Taffe and Booth worked closely—Taffe described himself as Booth's "biggest supporter." Dkt. 27–2 at 19; Dkt. 27–10 at 7–8.

In March of 2011, Booth received complaints from two female CPUD employees, Elisha Shulda and Gail Rakitnich, concerning Taffe. Dkt. 24–2 at 3. Shulda alleged that Taffe groped her in one of her coworker's offices. Dkt. 24–2 at 3. Rakitnich alleged that at a company bowling party, Taffe groped her from behind as he walked by her. Dkt. 27–2 at 51.

By April 2011, two more female employees, Sarah Blodgett and Tami Keith, had reported to Booth that Taffe inappropriately touched them. Dkt. 27–5 at 16–20. Booth did not fire, suspend, or place Taffe on administrative leave in response to the complaints. Dkt. 27–2 at 4–5. Booth's two disciplinary actions were to place Taffe on "probation" and issue a sealed letter of reprimand to Taffe's personnel file. Dkt. 24–2 at 3; Dkt 27–5 at 17.

In December 2011, Booth received a report of another incident between Shulda and Taffe. Dkt. 27–6 at 41–45. According to Shulda and other witnesses, Taffe called Shulda a derogatory name and told his coworkers that "we should just kill her." Dkt. 27–13 at 5. In response to this complaint, Booth allowed Taffe to retire and continue working for CPUD under a consulting agreement that paid Taffe $7,800 per month. Dkt. 27–5 at 42; Dkt. 27–6 at 49–50.

In February 2012, Shulda and Rakitnich filed complaints with the Bureau of Labor and Industry ("BOLI") concerning Taffe's behavior. Dkt. 27–11 at 1–4. Between December 2011 and February 2012, Shulda, Rakitnich, and Keith also reported Taffe's behavior to the Clatskanie Police Department. Dkt. 27–2 at 22–45. Booth allowed Taffe to continue performing contract work for CPUD and occasionally visiting the CPUD facilities until approximately September 2012. Dkt. 27–5 at 51–54; Dkt. 27–6 at 51.

B. Booth's Ongoing Responses to the Complaints

By December 2012, Booth knew that Shulda and Rakitnich had filed complaints with BOLI and the Clatskanie Police Department concerning Taffe. Dkt. 27–2 at 13; Dkt. 27–7 at 3–4. Booth knew that Keith had made reports to the police about Taffe as well. Id. According to Becky Rakoz, Booth's executive assistant, Booth began talking to her about firing the women who had complained. Id. Rakoz reported Booth's comments to CPUD's legal counsel, and Booth discovered that Rakoz had made this report. Dkt. 27–7 at 3; Dkt. 27–14 at 4–5, 8. Lindsey asserts that Booth also talked to him about the complaints and Booth's desire to know where BOLI obtained its information. Dkt. 27–1 at 11.

In January 2013, Keith filed a charge with the Equal Employment Opportunity Commission ("EEOC") against CPUD. Dkt. 27–12 at 1. Keith took a medical leave of absence while her EEOC charge was pending. Dkt. 27–1 at 10. During Keith's absence, Booth became aware of her EEOC charge and, according to Lindsey, talked to Lindsey about searching Keith's work computer. Dkt. 27–2 at 11–12; Dkt. 27–1 at 8. Lindsey asserts that in April 2013, Booth specifically told Lindsey that he wanted Lindsey to search Keith's computer for evidence "to get rid of her." Dkt. 27–1 at 8–9. Lindsey had contact with Keith and knew the nature of her claims against CPUD. Dkt. 28 ¶¶ 2–5. Believing that this broad search of an employee's computer would be illegal and possibly lead to a destruction of evidence, Lindsey claims he refused to conduct the search. Dkt. 27–1 at 8–9. According to Lindsey, "When I talked to the BOLI instructor [from a training], they [sic] told me if you have something specific to search for ... that pertains to a particular subject, then you could look for it, but just to go do a blanket search is just a witch hunt." Id. at 9. Booth denies ever asking Lindsey to perform this search. Dkt. 27–3 at 4. Booth asserts that the only employee computer that he ever asked Lindsey to search was Rakitnich's after she left CPUD. Dkt. 24–4 at 6–7.

Lindsey further asserts that in April 2013, Booth asked him to "scrub" Booth's computer. Dkt. 27–1 at 7–8. According to Lindsey, he had a similar conversation with Booth the previous year in which Booth told Lindsey that Booth had another IT employee hide evidence during an administrative investigation. Dkt. 27–1 at 7. Lindsey recalls Booth telling him that he "may be called to do the same in the future." Id. Lindsey asserts that in response to Booth's April 2013 request, he asked Booth for a letter from legal counsel authorizing a wipe of the computer. Because Lindsey never received such a letter, he never performed the requested scrub. Id. at 8.

Also in April 2013, Booth discovered an email from Keith to Lindsey and five other CPUD employees. Dkt. 27–3 at 5; Dkt. 28 at 4. The email concerned BOLI investigators contacting CPUD employees regarding the complaints against Taffe. Dkt. 28 at 4. Lindsey had chosen not to forward the email to Booth in the same manner that Lindsey forwarded Booth a previous email concerning BOLI investigations. Dkt. 27–3 at 5. Lindsey claims he did not bring the email to Booth's attention for fear that Booth would retaliate against...