Morrow v. Bard Access Systems, Inc.

833 F. Supp. 2d 1246, 2011 WL 2471525, 2011 U.S. Dist. LEXIS 68362
CourtDistrict Court, D. Oregon
DecidedJune 20, 2011
DocketCivil No. 3:10-cv-00209-JO
StatusPublished

This text of 833 F. Supp. 2d 1246 (Morrow v. Bard Access Systems, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morrow v. Bard Access Systems, Inc., 833 F. Supp. 2d 1246, 2011 WL 2471525, 2011 U.S. Dist. LEXIS 68362 (D. Or. 2011).

Opinion

OPINION AND ORDER

JONES, District Judge:

Plaintiff Michael Morrow brought this action against defendant Bard Access Systems, Inc., in state court, alleging claims for age discrimination under ORS Chapter 659A, and common law claims for wrongful discharge. Defendant removed the action to this court based on diversity jurisdiction.

The case is now before the court on defendant’s motion (# 25) for summary judgment. For the reasons stated below, defendant’s motion is denied as to plaintiffs age discrimination claim and granted as to the wrongful discharge claims.

STANDARDS

Summary judgment should be granted 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 non-moving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A scintilla of evidence, or evidence that is merely color-able or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of America v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir.1989).

The substantive law governing a claim determines whether a fact is material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986): see also T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 630 (9th Cir.1987). Reasonable doubts as to the existence of a material factual issue are resolved against the moving party. T.W. Elec. Service, 809 F.2d at 631. Inferences drawn from facts are viewed in the light most favorable to the non-moving party. Id. at 630-31.

DISCUSSION

The parties are familiar with their extensive evidentiary submissions, and I find it unnecessary to repeat the factual background of this dispute here. Having thoroughly reviewed the parties’ arguments and submissions, I conclude that summary judgment on plaintiffs age discrimination claim must be denied, but that his wrongful discharge claims are not viable and must be dismissed.

1. Age Discrimination

The record establishes that during his employment with defendant, plaintiff “was his own worst enemy,” as defendant points out and has thoroughly documented. But the record also shows that plaintiff consistently was a top performer in sales. Despite plaintiffs success in sales, defendant contends that plaintiffs long history [1248]*1248of administrative failings, misconduct, and other behavior, including the final unprofessional email1 that is central to defendant’s arguments, resulted in the decision to terminate his employment. The evidence strongly supports defendant’s position.

Plaintiff, in turn, contends that age, not misconduct, was the reason for his termination. In support of his argument, plaintiff largely relies on his own affidavit, in which he describes statements made by several of defendant’s managers that may be construed as demonstrating age bias. Because this is a summary judgment proceeding, the veracity of plaintiffs testimony is not before the court. Accepting plaintiffs testimony as true for purposes of the pending motion, a reasonable trier of fact could find that plaintiffs termination was an unlawful employment practice under ORS Chapter 659A.2

The parties debate whether causation is measured by the “but for” test the United States Supreme Court articulated in Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009), for federal Age Discrimination in Employment Act (“ADEA”) cases, or the “substantial factor” test ordinarily applied in Oregon state law discrimination claims. See, e.g., Seitz v. State by and Through Albina Resources Center, 100 Or.App. 665, 675, 788 P.2d 1004 (1990)(sex and race discrimination). Neither party has cited an Oregon appellate court decision that addresses the specific issue of causation in a ORS Chapter 659A age discrimination case, nor has this court found one.

It is tempting to construe the language of the Oregon law as the Supreme Court did in Gross, because the pertinent language interpreted in Gross is identical in both statutes, i.e., with respect to causation, both statutes prohibit discrimination “because of age.” Compare 29 U.S.C. § 623(a)(1) with ORS 659A.030(l)(a). The ADEA, however, specifically applies only to age discrimination, while ORS 659A.030(l)(a) prohibits discrimination “because of race, color, religion, sex, sexual orientation, national origin, marital status or age.... ” As noted above, although no Oregon appellate decision interprets the “because of language in the context of an age discrimination case, the courts have clarified that the ‘substantial factor’ ” test applies to other forms of discrimination prohibited by the same statute. See, e.g., Ettner v. City of Medford, 178 Or.App. 303, 35 P.3d 1140 (2001) (gender); Winnett v. City of Portland, 118 Or.App. 437, 847 P.2d 902 (1993) (sex); Seitz, supra, 100 Or.App. at 675, 788 P.2d 1004 (sex and race); see also Ventura v. Johnson Controls, Inc., 2010 WL 3767882 at *10 (D.Or. [1249]*1249Sept. 16, 2010). And as the Oregon Court of Appeals recently noted:

The ultimate factual question that must be addressed in such a civil action is whether the plaintiff has proved that the defendant intentionally discriminated against the plaintiff, that is, whether the defendant treated the plaintiff differently, and adversely, because of ... age.

Christianson v. State of Oregon, 239 Or.App. 451, 455, 244 P.3d 904 (2010).

The record in this case strongly supports an inference that plaintiff was, indeed, terminated for performance deficiencies and misconduct. On the other hand, the record also demonstrates that defendant initially planned to respond to plaintiffs unprofessional email by disciplining him and giving him a formal letter of reprimand, not terminating him.

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Related

McDonnell Douglas Corp. v. Green
411 U.S. 792 (Supreme Court, 1973)
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
Gross v. FBL Financial Services, Inc.
557 U.S. 167 (Supreme Court, 2009)
Babick v. Oregon Arena Corp.
40 P.3d 1059 (Oregon Supreme Court, 2002)
Patton v. J. C. Penney Co.
719 P.2d 854 (Oregon Supreme Court, 1986)
Christianson v. State of Oregon
244 P.3d 904 (Court of Appeals of Oregon, 2010)
Winnett v. City of Portland
847 P.2d 902 (Court of Appeals of Oregon, 1993)
Ettner v. City of Medford
35 P.3d 1140 (Court of Appeals of Oregon, 2001)

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Bluebook (online)
833 F. Supp. 2d 1246, 2011 WL 2471525, 2011 U.S. Dist. LEXIS 68362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morrow-v-bard-access-systems-inc-ord-2011.