Opinion
Civil No. 02-1012-JE
June 2, 2004
Diana I. Stuart, Goldberg, Mechanic, Stuart Gibson LLP, Portland, OR, for Plaintiff
Ronald K. Silver, Portland, OR, for Defendant
FINDINGS AND RECOMMENDATION
Plaintiff Gina Papke brings this employment discrimination action against defendant Ann M. Veneman, Secretary of the United States Department of Agriculture. Plaintiff, who supervised a crew of firefighters, alleges that defendant transferred her to a desk job because of her sex, or in retaliation for reporting sexual harassment, or both. Plaintiff also claims that she was subjected to sexual harassment.
Defendant moves for summary judgment. I recommend granting summary judgment as to plaintiff's claim for sexual harassment, and otherwise denying the motion.
BACKGROUND
Plaintiff started working as a firefighter in 1980. She became supervisor of the Zigzag Hotshot crew in 1991. As of 2000, there were about seventy Hotshot crews in the United States, and plaintiff was the only female crew supervisor.
In 1998, plaintiff disciplined Joel Pomeroy, her second-in-command, for making inappropriate sexual comments and touching female crew members. Pomeroy became a thorn in plaintiff's side, frequently complaining about plaintiff to superiors and trying to undermine her authority with the crew. Plaintiff unsuccessfully requested that Pomeroy be transferred from her crew. The parties agree that harmony among crew members is crucial.
In 1999, Len Diaz became plaintiff's direct supervisor. In late 1999, plaintiff helped a female crew member file a sexual harassment complaint against Diaz. According to plaintiff, Diaz treated her differently after the complaint was filed. The parties dispute when Diaz became aware of the complaint.
Plaintiff contends that Diaz "began a course of conduct designed to humiliate and degrade her, and diminish her authority with her crew." Pltf.'s Corr. Mem., at 23. Plaintiff cites the affidavit of another female Forest Service employee, who stated that Diaz was "condescending" and "overly critical" of women who had reputations as being competent at their work. Id. (quoting Hakanson Aff. at 2). Plaintiff states that Diaz was "pointedly cold to her, ignored her presence, [and] spoke to her before the crew in a condescending fashion." Id. at 23-24.
In August 2000, plaintiff's crew fought the Lydia Fire in Montana. Although no crew member was injured, several crew members were allegedly frightened because the fire was too close.
The parties dispute whether plaintiff properly supervised her crew during the Lydia Fire. Plaintiff contends that she made sound tactical decisions and that the crew was never in serious danger.
In October 2000, defendant took away plaintiff's supervisory authority while the Forest Service investigated her. Defendant's investigation was initially to determine whether plaintiff was "abusive" to her crew, but later became an inquiry into plaintiff's decisions during the Lydia Fire.
Plaintiff contends the investigation was a sham to create a pretext for terminating or transferring her. Plaintiff states that the person conducting the investigation worked in human resources and had no firefighting experience. Plaintiff was not allowed to explain her firefighting decisions in detail.
Defendant contends that Diaz did not participate in the decision to discipline plaintiff. Plaintiff responds that Diaz did contribute to the investigation.
Based on the Lydia Fire investigation, in spring 2001 defendant assigned plaintiff to a desk job and removed her authority to supervise firefighting crews. Plaintiff's base salary remained the same, but she was no longer eligible for hazardous duty pay.
Plaintiff contends that no other Hotshot supervisor has been treated the way she was under similar circumstances. Plaintiff states that she was replaced by a less-qualified man.
Pomeroy, the foreman on plaintiff's crew who had tried to undermine plaintiff's authority, was transferred by defendant after the Lydia Fire investigation. Unlike plaintiff, Pomeroy was allowed to keep his supervisory qualifications, and he allegedly welcomed the transfer.
STANDARDS
The court must grant summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). If the moving party shows that there are no genuine issues of material fact, the nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The court should resolve reasonable doubts about the existence of an issue of material fact against the moving party. Id. at 631. The court should view inferences drawn from the facts in the light most favorable to the nonmoving party.Id. at 630-31.
DISCUSSION
I. Sexual Harassment ClaimA. Standards
To prove that a sexually hostile environment existed, plaintiff must show that (1) she was subjected to verbal or physical conduct of a sexual nature; (2) this conduct was unwelcome; and (3) the conduct was "`sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995) (quoting Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991)).
B. Discussion
Plaintiff has failed to present sufficient evidence from which a trier of fact could find that plaintiff was subjected to a sexually hostile environment. Plaintiff cites conduct that was condescending, cold, or undermined her authority in front of her crew. Considering the evidence in the light most favorable to plaintiff, the alleged conduct of Diaz and others was neither severe nor pervasive enough to create a sexually hostile working environment. See Kortan v. California Youth Authority, 217 F.3d 1104, 1111 (9th Cir. 2000) (no hostile environment when male supervisor called female employees "castrating bitches," "Madonnas," or "Regina" in the plaintiff's presence, and called the plaintiff "Medea," among other conduct).
None of the harassing conduct alleged by plaintiff was overtly sexual in nature. The Ninth Circuit has noted that "[i]t is one thing to call a woman `worthless' and another to call her a `worthless broad.'" Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994). I have not found any reported decision on gender-based harassment in which the alleged harassment did not involve physical or verbal conduct of a sexual nature, lacked sexual connotations, and did not disparage the plaintiff's gender or sexual orientation. Cf. Hall v. Gus Constr. Co., 842 F.2d 1010, 1013-14 (8th Cir. 1988) ("predicate acts underlying a sexual harassment claim need not be clearly sexual in nature"; plaintiffs were also subjected to frequent overtly sexual comments and actions).
II. Discrimination and Retaliation Claims
A. Disparate Treatment Discrimination
Title VII prohibits employers from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex. . . ." 42 U.S.C. § 2000e-2(a)(1). To establish a sex discrimination claim, the plaintiff must show that "(1) she belongs to a protected class; (2) she was qualified for the position; (3) she was subjected to an adverse employment action; and (4) similarly situated men were treated more favorably, or her position was filled by a man." Villiarimo v. Aloha Island Air, Inc. 281 F.3d 1054, 1062 (9th Cir. 2002).
The employer then must give "some legitimate, nondiscriminatory reason for the challenged action." Id. If the employer does so, the plaintiff must show with specific, substantial evidence that the employer's reason is a pretext for discrimination. Id.
In ruling on motions for summary judgment against claims of employment discrimination, the court should keep in mind "the importance of zealously guarding an employee's right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses." McGinest v. GTE Service Corp., 360 F.3d 1103, 1112 (9th Cir. 2004) (citations omitted). Here, plaintiff has presented sufficient evidence to make a prima facie case.
Although defendant has presented evidence of legitimate, nondiscriminatory reasons for disciplining plaintiff, plaintiff has responded with evidence that defendant's asserted reasons were pretexts for sex discrimination. I conclude that disputed issues of material fact should preclude summary judgment on plaintiff's sex discrimination claim.
B. Retaliation
Title VII prohibits employers from discriminating against an employee because the employee "has opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a). To establish her retaliation claim, plaintiff must show: (1) that she engaged in protected activity, such as filing a discrimination complaint; (2) that an adverse employment action was thereafter taken against her; and (3) that a causal link exists between these two events. See Steiner, 25 F.3d at 1464.
Here, plaintiff has presented evidence that she was subject to an adverse employment action after she helped a female employee file a sex discrimination complaint. Plaintiff has presented sufficient evidence of a causal link to survive summary judgment.
CONCLUSION
Defendant's motion for summary judgment (#20-1) should be granted as to plaintiff's sexual harassment claim and otherwise denied.
SCHEDULING ORDER
The above Findings and Recommendation are referred to a United States District Judge for review. Objections, if any, are due June 18, 2004. If no objections are filed, the Findings and Recommendation will go under advisement on that date.
A party may respond to another party's objections within 10 days after service of a copy of the objection. If objections are filed, review of the Findings and Recommendation will go under advisement upon receipt of the response, or the latest date for filing a response.