Cramblett v. McHugh, No. 3:2010cv00054 - Document 151 (D. Or. 2014)
Court Description: FINDINGS OF FACT AND CONCLUSIONS OF LAW: Defendant is entitled to judgment in his favor on each of Cramblett's remaining claims. A final judgment will therefore be prepared. Signed on 5/19/14 by Magistrate Judge Paul Papak. (gm)
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EEO complaint. Moreover, most of the alleged harassing conduct was motivated by legitimate reasons. This includes the counseling of Cramblett for safety infractions, for taking pictures of his co-workers, and for excessive absences. The evidence also shows that Cramblett's co-workers were not ostracizing him, but were actually doing their best to interact with him when his behavior was quite enatic and unpredictable. 10. Likewise, the conduct of Williams toward Cramblett in November 2008 also does not constitute actionable retaliation or retaliatmy harassment. Williams showed questionable judgment in deciding to talk with Cramblett at the Moorings and then using his experience with Cramblett as an example in his training class at Skamania Lodge. Nevertheless, the evidence does not support the conclusion that Williams' actions were taken to retaliate against Cramblett for filing an EEO complaint. In addition, Williams' conduct does not rise to the level of actionable retaliation, in that it was not so severe or pervasive as to alter the terms or conditions of Cramblett's employment. a. On the issue of retaliatmy intent, Cramblett argues that Williams's conduct constitutes "retaliation per se" because he expressed a negative opinion to Cramblett regarding the merit of his EEO Complaint. But there is no legal support for the proposition that any expression of skepticism by an employer about the merits of an employee's EEO Complaint constitutes retaliation. Cramblett cites Pruette v. Postal Service, EEOC Appeal No. 01951567, 1998 WL 133446 (E.E.O.C.) in support of this argument. In Pruette, a Postal Service EEO counselor informed an employee who complained of sexual harassment that Page 27 -FINDINGS OF FACT AND CONCLUSIONS OF LAW "Whorish people will be treated in a whorish manner," and that if "there was even one more complaint against her for any reason, disciplinaty action would be immediate and severe." Id. at *2. The EEOC found that this conduct "constituted a per se violation of the Commission's regulations prohibiting restraint and interference with the EEO process." As an initial matter, Pruette is not highly persuasive authority because it is an administrative decision that has not been cited even once by a federal comt in 16 years. Moreover, regardless of the merits of the Pruette decision, Williams's conduct is distinguishable from the conduct of the EEO counselor in Pruette. First, unlike the counselor in Pruette, Williams did not direct abusive language at Cramblett, nor did he threaten Cramblett with discipline. Rather, Williams cited an example of an event that long-predated Cramblett's EEO complaint (the "black son-in-law comment") as an example of a reason that Cramblett's failure to get a job at a dam may be due to reasons other than age discrimination. Both the substance of Williams's comments and the manner in which he presented them indicate that Williams was not trying to get back at Cramblett for filing an EEO complaint, but was rather simply discussing the underlying merits of Cramblett's EEO Complaint. Most notably, Williams did not state or even suggest that Cramblett could suffer any negative repercussions in his employment from having initiated the EEO process. While Williams would have been better served to not engage in this discussion with Cramblett, the fact that he did does not demonstrate retaliatoty intent. Likewise, the class that Cramblett gave at Skamania Lodge does not provide any Page 28 - FINDINGS OF FACT AND CONCLUSIONS OF LAW evidence of retaliatory intent. Most notably, Williams's statements in the class were not directed at Cramblett, nor did Williams intend for Cramblett to ever become aware of his statements. Futihermore, Williams's statements in the class do not indicate any animus toward Cramblett for filing an EEO complaint. Rather, Williams's statements again were about what Williams perceived as a separate issue that existed, i.e., a failure by Cramblett's supervisors to be frank with him. b. In any event, even if Williams's actions in November 2008 were motivated by retaliatory intent, they would not rise to the level of actionable retaliation. On several occasions, the Ninth Circuit has held that negative remarks by a supervisor to an employee about an EEO complaint do not constitute retaliation. Hardage, 427 F.3d at 1189 (holding that a supervisor's snide remarks and threats do not constitute actionable retaliation); Kortan v. California Youth Authority, 217 F.3d II 04, 1112 (9th Cir.2000) (holding that a supervisor's laughing and stating that the plaintiff "got him on sexual harassment charges," the supervisor's hostile stares, and increased criticism were insufficient to constitute retaliation); see also Casey v. };fabus, 878 F. 2d 17. (even the use of harsh words by a supervisor on a single, isolated occasion does not amount to a materially adverse action when it is not repeated and when it is not followed by any other ramifications or negative action taken against the employee because it would not dissuade a reasonable employee from suppmiing a claim of discrimination). Both the content and the manner of Williams's discussion with Cramblett -no threats, no yelling and only Page 29 - FINDINGS OF FACT AND CONCLUSIONS OF LAW holding the conversation on one occasion- makes Williams's conduct even less hostile or abusive than the conduct in these Ninth Circuit cases. Furthermore, the fact that Williams was not a supervisor of Cramblett and did not have any control over Cramblett's day to day work or his work evaluations also indicates that the conduct was not actionable retaliation. While Cramblett may have subjectively felt that Williams's conduct created a retaliatmy hostile work environment, the standard is an objective one. A reasonable person in Cramblett's position would not have felt that his working conditions had become abusive or hostile based on Williams's conversation at the Moorings in November 2008, nor was the conduct sufficiently severe or pervasive to alter the conditions of Cramblett's employment. For the foregoing reasons, defendant is entitled to judgment in his favor on each of Cramblett's remaining claims. A final judgment will therefore be prepared. Dated this 19th day of May, 2014. onorable Paul Papak United States Magistrate Judge Page 30 - FINDINGS OF FACT AND CONCLUSIONS OF LAW
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