A Ninth Circuit panel holds, in a Title VII and Oregon state law case, that an employer's breaking into a work locker constitutes a materially adverse employment action. The panel also splits - 2-1 - over whether the employer failed to take appropriate steps to stop alleged racial harassment, and whether it disproportionately punished the plaintiff by firing him (for leaving the workplace) while taking no action against the harasser.
Reynaga v. Roseburg Forest Products, No. 14-35028 (9th Cir. Jan. 26, 2017): Plaintiff Efrain Reynaga (the plaintiff) and his son Richard worked as millwrights for Roseburg, reportedly the only Latino millwrights at the worksite.
The lead millwright Branaugh was accused by plaintiff of "frequently ma[king] racially derogatory comments and engag[ing] in other harassing conduct." The comments were derogatory of women and other races and nationalities, but some were specific to plaintiff. "Efrain identifies several derogatory remarks that Branaugh made specifically about Mexicans, including comments about the 'border' that were tinged with racism." Around hunting season, for instance, he reportedly said that "I'm a true believe [sic] that we should close the borders to keep motherf***ers like you from coming up here and killing our elk."
Reynaga also complained about numerous acts of discrimination by Roseburg, including dirtier and more dangerous work assignments, extra duties not performed by white employees, and greater scrutiny of their work.
In one instance, Reynaga - but not a white worker - had his work locker checked for drugs:
"On November 12, 2008, the police brought drug-sniffing dogs to the Roseburg facility. They broke the lock to Efrain and Richard's shared locker even though Richard was present and offered to open it. The police did not find anything nefarious inside. Roseburg did not break the lock to a white millwright's locker even though a dog alerted to it."
Reynaga complained verbally (in October 2009) and in writing (in December 2009) about the discrimination, harassment and retaliation. "Subsequently, Roseburg rearranged Branaugh's schedule so that he would not be on the same shift as Efrain." Nevertheless, in January 2010 Branaugh appeared on the same shift. The Reynagas vacated the workplace. They were suspended and then fired for work abandonment.
Reynaga sued Roseburg for hostile work environment, disparate treatment, and retaliation under Title VII, § 1981, and Oregon state law (O.R.S. § 659A.030(1)(a) and (b)). Summary judgment was granted on all claims.
The Ninth Circuit in a split decision reverses summary judgment on some of the claims.
On the harassment claim, that panel majority holds that there were genuine disputes of material fact on whether the harassment was severe or pervasive, and whether the employer took adequate action to correct it. The majority holds that a jury could find the accumulation of Branaugh's "explicit racial and national origin comments in the workplace" were hostile and derogatory. Conditions were so objectively severe that Roseburg had to separate the employees.
The majority also holds that a jury could find Roseburg negligent in responding, allegedly waiting nearly two months after the first verbal complaint to take action and never giving Branaugh any kind of formal discipline. (Judge Carlos Bea dissented on this point, and would hold that the employer took prompt and effective corrective action against Branaugh's harassment, by commencing an investigation a week after the written complaint and separating the employees.)
On the discriminatory discharge claim, the panel majority holds that there was a genuine dispute of material fact about whether white employees, unlike plaintiff, were spared termination when they engaged in workplace violations (in particular, Branaugh was not terminated for his racial harassment of plaintiff). Although the plaintiff admitted that he left the worksite and refused to return to work, "Roseburg ... conditioned Efrain's employment on his willingness to work with a coworker who had a proven history of repeatedly and persistently harassing Efrain based on his race and national origin." (Judge Bea dissented from this part of the opinion as well.)
The unanimous panel reverses summary judgment on the disparate treatment of the plaintiff and a white employee on the breaking and searching of lockers. Allegedly, a drug-sniffing dog approached two lockers, those of plaintiff and a white coworker named Martin. The company broke into plaintiff's locker. While the "dogs alerted to the locker of a white co-worker," there was no indication that his locker was ever searched, let alone broken into.
The panel holds that the invasion of plaintiff's locker was an adverse action:
"He has also shown that he suffered an adverse employment action; Roseburg's act of breaking into Efrain's locker without notice materially affected the terms, conditions, or privileges of Efrain's employment because it was a 'substantial interference with work facilities important to the performance of the job.'"
Finally, the panel majority holds that a jury could find plaintiff's termination was retaliatory.
"Efrain's prima facie case is strong, particularly in light of the timing of the termination. Efrain had worked at Roseburg for more than five years, yet he was fired barely one month after making a formal written complaint. Proof of a causal link between Efrain's complaint and his termination-as evidenced by temporal proximity-is certainly relevant to an evaluation of pretext."
The panel majority considers it to be relevant that the plaintiff's termination for missing one-and-a-half shifts was widely out of proportion to "Roseburg's benign treatment of Branaugh."