NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 30 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
NICOLE OCHS, No. 17-36019
Plaintiff-Appellant, D.C. No. 6:16-cv-01063-JR
v. MEMORANDUM* EUGENE EMERALDS BASEBALL CLUB, INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding
Argued and Submitted May 15, 2019 Portland, Oregon
Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.
Nichole Ochs appeals the district court’s dismissal on summary judgment of
her claims under Or. Rev. Stat. § 659A.030 and Or. Rev. Stat. § 659A.199 for
hostile work environment, sex/gender discrimination, and retaliation against her
former employer the Eugene Emeralds Baseball Club, Inc., Elmore Sports Group,
Ltd., and Ochs’s former manager Allan Benavides (collectively “Emeralds”).
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Because Or. Rev. Stat. § 659A.030 and Or. Rev. Stat. § 659A.199 were “modeled
after Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000E et seq.,
federal cases interpreting Title VII are instructive.” Harris v. Pameco Corp., 170
Or. App. 164, 176 (2000). “We have jurisdiction pursuant to 28 U.S.C. § 1291 and
review de novo the district court’s grant of summary judgment.” Dominguez–
Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1033 (9th Cir. 2005). We affirm in
part, reverse in part, and remand for further proceedings.
First, we reverse the district court’s grant of summary judgment on Ochs’s
hostile work environment claim. To establish a prima facie hostile work
environment claim, Ochs needed to show that “because of her [] sex, she was
subjected to unwelcome conduct that was sufficiently severe or pervasive to alter
the conditions of her employment and create an abusive working environment.”
Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1016 (9th Cir. 2018) (internal
quotation marks and brackets omitted). “[A] sexually objectionable environment
must be both objectively and subjectively offensive, one that a reasonable person
would find hostile or abusive, and one that the victim in fact did perceive to be so.”
Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). “We consider all
circumstances, with a particular focus on issues such as the frequency and severity
of the conduct, whether the conduct was physically threatening or humiliating, and
the extent to which it unreasonably interfered with [Ochs’s] work performance.”
2 Campbell, 892 F.3d at 1017.
Ochs presented evidence that, for a period of roughly three years,1
Benavides repeatedly and aggressively called her a “bitch,” often in response to
routine questions, and called her a “fucking bitch” and a “cunt” once, in addition to
various gender-neutral abusive conduct. Although such epithets may not satisfy
the “because of sex” factor in all contexts, a jury could find that, in these
circumstances, Benavides’s repeated and aggressive use of the epithets was
because of Ochs’s sex. See Costa v. Desert Palace, Inc., 299 F.3d 838, 861–62
(9th Cir. 2002) (en banc); Passananti v. Cook Cty., 689 F.3d 655, 666 (7th Cir.
2012). A reasonable jury also might find Benavides’s conduct objectively severe
or pervasive enough to “alter the conditions of [Ochs’s] employment and create an
abusive working environment.” Campbell, 892 F.3d at 1016 (internal quotation
marks and brackets omitted). And a reasonable jury could conclude that Ochs
subjectively perceived her work environment to be abusive because she informed
Benavides his conduct was disrespectful; complained about Benavides’s conduct to
coworkers; and felt she was being undermined by Benavides’s conduct. See
Faragher, 524 U.S. at 787. We therefore reverse the district court’s grant of
summary judgment on this claim and remand.
1 The district court erred in excluding evidence that it perceived to be outside the one-year limitations period for Ochs’s hostile work environment claim. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117–18 (2002).
3 Second, we affirm the district court’s grant of summary judgment on Ochs’s
employment discrimination claim that Emeralds terminated her because of her sex.
We analyze Ochs’s claims “through the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).” Hawn v. Exec. Jet Mgmt., Inc.,
615 F.3d 1151, 1155 (9th Cir. 2010). “Under this analysis, plaintiffs must first
establish a prima facie case of employment discrimination.” Id. “If plaintiffs
establish a prima facie case, the burden of production, but not persuasion, then
shifts to the employer to articulate some legitimate, nondiscriminatory reason for
the challenged action.” Id. (internal quotation marks and brackets omitted). “If
defendant meets this burden, plaintiffs must then raise a triable issue of material
fact as to whether the defendant’s proffered reasons for their terminations are mere
pretext for unlawful discrimination.” Id.
We find that Ochs failed to make a prima facie showing of employment
discrimination. Although Ochs had good sales numbers, she was not performing
her job satisfactorily. She had been reprimanded multiple times for being
disrespectful to fans, coworkers, and management and was warned that if she did
not improve her behavior, she would be terminated. Ochs also failed to show that
other employees who had been similarly reprimanded for disrespectful conduct
were treated more favorably.
Even if Ochs could make a prima facie case, she has failed to present any
4 evidence that Emeralds’ legitimate nondiscriminatory reason for terminating her
was pretextual. Emeralds terminated Ochs after she was disrespectful to
Benavides in a meeting just months after she was warned that she would be
terminated if her disrespectful conduct continued.
We reject Ochs’s argument that the fate of her claim would differ if we did
not apply McDonnell Douglas.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 30 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
NICOLE OCHS, No. 17-36019
Plaintiff-Appellant, D.C. No. 6:16-cv-01063-JR
v. MEMORANDUM* EUGENE EMERALDS BASEBALL CLUB, INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding
Argued and Submitted May 15, 2019 Portland, Oregon
Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.
Nichole Ochs appeals the district court’s dismissal on summary judgment of
her claims under Or. Rev. Stat. § 659A.030 and Or. Rev. Stat. § 659A.199 for
hostile work environment, sex/gender discrimination, and retaliation against her
former employer the Eugene Emeralds Baseball Club, Inc., Elmore Sports Group,
Ltd., and Ochs’s former manager Allan Benavides (collectively “Emeralds”).
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Because Or. Rev. Stat. § 659A.030 and Or. Rev. Stat. § 659A.199 were “modeled
after Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000E et seq.,
federal cases interpreting Title VII are instructive.” Harris v. Pameco Corp., 170
Or. App. 164, 176 (2000). “We have jurisdiction pursuant to 28 U.S.C. § 1291 and
review de novo the district court’s grant of summary judgment.” Dominguez–
Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1033 (9th Cir. 2005). We affirm in
part, reverse in part, and remand for further proceedings.
First, we reverse the district court’s grant of summary judgment on Ochs’s
hostile work environment claim. To establish a prima facie hostile work
environment claim, Ochs needed to show that “because of her [] sex, she was
subjected to unwelcome conduct that was sufficiently severe or pervasive to alter
the conditions of her employment and create an abusive working environment.”
Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1016 (9th Cir. 2018) (internal
quotation marks and brackets omitted). “[A] sexually objectionable environment
must be both objectively and subjectively offensive, one that a reasonable person
would find hostile or abusive, and one that the victim in fact did perceive to be so.”
Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). “We consider all
circumstances, with a particular focus on issues such as the frequency and severity
of the conduct, whether the conduct was physically threatening or humiliating, and
the extent to which it unreasonably interfered with [Ochs’s] work performance.”
2 Campbell, 892 F.3d at 1017.
Ochs presented evidence that, for a period of roughly three years,1
Benavides repeatedly and aggressively called her a “bitch,” often in response to
routine questions, and called her a “fucking bitch” and a “cunt” once, in addition to
various gender-neutral abusive conduct. Although such epithets may not satisfy
the “because of sex” factor in all contexts, a jury could find that, in these
circumstances, Benavides’s repeated and aggressive use of the epithets was
because of Ochs’s sex. See Costa v. Desert Palace, Inc., 299 F.3d 838, 861–62
(9th Cir. 2002) (en banc); Passananti v. Cook Cty., 689 F.3d 655, 666 (7th Cir.
2012). A reasonable jury also might find Benavides’s conduct objectively severe
or pervasive enough to “alter the conditions of [Ochs’s] employment and create an
abusive working environment.” Campbell, 892 F.3d at 1016 (internal quotation
marks and brackets omitted). And a reasonable jury could conclude that Ochs
subjectively perceived her work environment to be abusive because she informed
Benavides his conduct was disrespectful; complained about Benavides’s conduct to
coworkers; and felt she was being undermined by Benavides’s conduct. See
Faragher, 524 U.S. at 787. We therefore reverse the district court’s grant of
summary judgment on this claim and remand.
1 The district court erred in excluding evidence that it perceived to be outside the one-year limitations period for Ochs’s hostile work environment claim. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117–18 (2002).
3 Second, we affirm the district court’s grant of summary judgment on Ochs’s
employment discrimination claim that Emeralds terminated her because of her sex.
We analyze Ochs’s claims “through the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).” Hawn v. Exec. Jet Mgmt., Inc.,
615 F.3d 1151, 1155 (9th Cir. 2010). “Under this analysis, plaintiffs must first
establish a prima facie case of employment discrimination.” Id. “If plaintiffs
establish a prima facie case, the burden of production, but not persuasion, then
shifts to the employer to articulate some legitimate, nondiscriminatory reason for
the challenged action.” Id. (internal quotation marks and brackets omitted). “If
defendant meets this burden, plaintiffs must then raise a triable issue of material
fact as to whether the defendant’s proffered reasons for their terminations are mere
pretext for unlawful discrimination.” Id.
We find that Ochs failed to make a prima facie showing of employment
discrimination. Although Ochs had good sales numbers, she was not performing
her job satisfactorily. She had been reprimanded multiple times for being
disrespectful to fans, coworkers, and management and was warned that if she did
not improve her behavior, she would be terminated. Ochs also failed to show that
other employees who had been similarly reprimanded for disrespectful conduct
were treated more favorably.
Even if Ochs could make a prima facie case, she has failed to present any
4 evidence that Emeralds’ legitimate nondiscriminatory reason for terminating her
was pretextual. Emeralds terminated Ochs after she was disrespectful to
Benavides in a meeting just months after she was warned that she would be
terminated if her disrespectful conduct continued.
We reject Ochs’s argument that the fate of her claim would differ if we did
not apply McDonnell Douglas. As we have previously held, in circumstances such
as these, “it is not particularly significant whether [Ochs] relies on the McDonnell
Douglas presumption or, whether [s]he relies on direct or circumstantial evidence
of discriminatory intent to meet [her] burden.” McGinest v. GTE Serv. Corp., 360
F.3d 1103, 1123 (9th Cir. 2004). “Under either approach, [Ochs] must produce
some evidence suggesting that [Emeralds’ decision to fire her] was due in part or
whole to discriminatory intent, and so must counter [Emeralds’] explanation that”
it fired Ochs because she once again disrespected management. Id. We therefore
affirm the district court’s grant of summary judgment on this claim.
Finally, we affirm the district court’s grant of summary judgment on Ochs’s
two claims for retaliation: (1) for reporting Oregon Liquor Control Commission
violations to Benavides; and (2) for reporting a hostile work environment to
Emeralds’ president D.G. Elmore. Ochs has neither shown a causal link between
her protected activity and her termination, nor has she shown that Emeralds’
legitimate nondiscriminatory reason for terminating her was pretextual. See
5 Dawson v. Entek Int’l, 630 F.3d 928, 934, 936 (9th Cir. 2011). Further, Ochs’s
claim for retaliation based on her reporting a hostile work environment fails
because Benavides made the decision to fire Ochs prior to her reporting the hostile
work environment to Elmore. “Employers need not suspend previously planned
[employment actions] upon discovering that a Title VII suit has been filed . . . .”
Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001).
AFFIRMED in part, REVERSED AND REMANDED in part.