Appeal from the United States District Court for the District of Oregon Ann Aiken, District Judge, Presiding D.C. No. 08-cv-06151-AA
The opinion of the court was delivered by: Bury, District Judge:
Argued and Submitted November 1, 2010-Portland, Oregon
Before: William A. Fletcher and Raymond C. Fisher, Circuit Judges, and David C. Bury, District Judge.*fn1
Shane Dawson (Dawson), a male homosexual, appeals the district court's grant of summary judgment in favor of his former employer, Entek International (Entek), on claims of discrimination arising from his termination. Entek is an Oregon-based company that manufactures polyethylene battery separators.
On appeal, Dawson argues that the district court erred when it applied the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework to analyze state claims under Or. Rev. Stat. § 659A.030 for retaliatory discharge, sex hostile work environment, and sexual orientation hostile work environment. Dawson also claims that the district court erred when it granted summary judgment in Entek's favor on Dawson's claims of retaliatory discharge and sex hostile work environment under both Title VII and Or. Rev. Stat. § 659A.030, as well as sexual orientation hostile work environment under Or. Rev. Stat. § 659A.030. Finally, Dawson alleges that the district court erred when it granted summary judgment against Dawson on his claim of intentional infliction of emotional distress.
Viewing the evidence in the light most favorable to the nonmoving party, Dawson produced circumstantial evidence of retaliatory discharge and sexual orientation hostile work environment, such that resolution of this action by summary judgment was error. We reverse and remand.
On April 13, 2007, Dawson was hired by Entek as a temporary production line worker. His job was to run a production line that rolled up battery separators. Dawson worked with 24 other employees, all male. Production line workers generally worked three 12 hour shifts and then one 6 hour shift, rotating days and graveyard shifts. Dawson had two acquaintances who already worked at Entek, Josh Dobbs (Dobbs) and Travis Etherington (Etherington), who were aware of Dawson's sexual orientation. Dobbs and Etherington frequented the same bar as Dawson and his partner, Tracy Hubbard. Jeremy Sei-bert (Seibert), Dobbs, and Etherington all worked the graveyard shift on the line with Dawson as co-workers, not as supervisors or trainers.
One of Dawson's supervisors was Ken Haase (Haase), and his direct trainer was Troy Guzon (Guzon). Dawson did not see Haase that often, as he was one of the many supervisors. Guzon directly worked with Dawson "side-by-side" teaching him how to "run the line at Entek." Dawson considered Guzon not only his trainer but his supervisor; Guzon was the only supervisor that he dealt with on a daily basis, as Dawson explained: "Well, my direct trainer, who was Troy [Guzon], I was told to go to with any problems or questions that I had, because he was another one of the supervisors as far as I knew, so - and I never really dealt with any of the other - the other supervisors at all." Oakley Elliott (Elliott) hired Dawson; he was a forklift trainer but he generally worked the dayshift while Dawson worked the graveyard shift. Dawson was also aware that Rob Shimmin (Shimmin) was a supervisor and production manager, but they did not work the same shift.
At work, certain individuals began making derogatory comments about Dawson's sexual orientation. Dawson specifically stated that Dobbs, Seibert and Guzon made derogatory comments about his sexual orientation to Dawson directly and to others that Dawson overheard. Dobbs made the statement that Dawson was a "worthless queer." Dawson testified, "I was standing at my line, and [Dobbs] was standing at the line beside me with Jeremy and a few of the other guys when [Dobbs] said that. . . . [Guzon] . . . was present and one of the other line operators . . . ." Dawson also overheard Dobbs tell others that Dawson liked to "suck dick" and "take it up the ass." Seibert referred to Dawson as "Tinker Bell," "a homo, a fag, and a queer" "on a daily basis for about a week, week and a half," and "acted in a physically intimidating manner." Dawson asked Seibert to stop using those words, but he would only stop for a couple of days and then start back up again. Dawson did not hear Seibert or Dobbs refer to any other co-workers in this way.
Guzon was present when these words were directed at Dawson, "[b]ecause [Guzon] was side by side with [Dawson] as [his] trainer and he was right there more than a few times when [Seibert] came over and said that. He was standing right there." Dawson went to Guzon and spoke with him about Sei-bert and others referring to him as "a homo and a fag" and "asked him if he could see if he could do something about it." Guzon said he would talk to Seibert about it. After their discussion, Guzon himself used the word "homo" 3-4 times when referring to Dawson. Shimmin and Haase, managers/supervisors, testified to overhearing other employees using the term "homo" over the years, but did not take it seriously.
Dawson began experiencing stress and work deterioration from the derogatory comments. On May 19, 2007, Dawson took a day off from work in response to the stress from his negative work environment. Dawson called the general number and asked the person who answered the phone to let his supervisor know that he was taking the day off. Entek recorded Dawson's day off as a "no-show/no-call day." Entek's procedure for an unscheduled absence required that the employees call one hour prior to the start of their shift and report their absence to a supervisor or designee. Dawson's call did not comply with this procedure.
The next day Dawson visited a person in human resources, Susan Morch (Morch). Dawson explained he had a problem and needed to file some type of complaint due to the names he was being called, "a homo and a fag and . . . a queer." He told Morch that Seibert, Dobbs and Guzon had all used those words referring to him.
Two days later, on May 22, 2007, Dawson was terminated from employment, ostensibly because of his failure to call properly before missing work. As Dawson explained:
I was told that I was being terminated for missing a shift, for a no-call/no-show. And I had explained that I did call in, but they said that I didn't call in. And then I explained to them - we also discussed what was talked about the day before, as to why I missed my shift, and I was told by Oakley and by Margaret [Campbell Rivers (Rivers) of Human Resources] that we have two different situations here and that therefore you're being terminated [from] your employment - for your attendance and then that we will deal with the other situation.
Entek reports that it investigated Dawson's complaints after his termination.
This court reviews a district court's grant of summary judgment de novo. See, e.g., Metoyer v. Chassman, 504 F.3d 919, 930 (9th Cir. 2007); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material ...