Whyte et al v. Praestantia Associates, LLC et al

Filing 56

ORDER: Defendants' Motion for Summary Judgment 34 is Granted. Signed on December 18, 2009 by Chief Judge Ann L. Aiken. (cp)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON BRADLEY 0 . WHYTE, and BRADLEY 0. WHITE, CRNA, PC, Plaintiffs, Civ No. 08-1267-AA OPINION AND ORDER v. PRAESTANTIA ASSOCIATES LLC, a domestic limited liability company; MARCUS BERGEN, MICHAEL R. WRAY, and JAMIE COBB, individuals; and MARCUS BERGEN PC, MICHAEL WRAY PC, and JAMIE COBB PC, domestic professional corporations, Defendants. Craig A. Crispin Crispin Employment Lawyers 500 Plaza West 9600 S.W. Oak Street Portland, OR 97223 Attorney for plaintiffs Michael K. Kelley Shay S . Scott Haglund Kelley Horngren Jones 1800 One Main Place 101 S.W. Main Street Portland, OR 97204 Attorneys for defendants & Wilder LLP 1 - OPINION AND ORDER AIKEN, Chief Judge: Plaintiffs Bradley 0. Whyte (Whyte) and Bradley 0. Whyte PC (Whyte PC) filed suit alleging race discrimination in violation of 42 U.S.C. � 1981 and Or. Rev. Stat. � 659A.030, intentional interference with economic relations, intentional interference with prospective economic relations, breach of the covenant of good faith and fair dealing, and defamation. Specifically, plaintiffs allege that defendants removed Whyte PC from their medical group and interfered with Whytefs future employment prospects because of his race. Defendants now move for summary judgment. BACKGROUND Whyte is a black man of Jamaican descent and a certified registered nurse anesthetist (CRNA). In January 2006, Whyte - through his professional corporation, Whyte PC - joined defendant Praestantia Associates LLC (Praestantia) as a full member. Defendant Bergen originally formed Praestantia as a single member/manager LLC to provide anesthesia services to hospitals, ambulatory surgery centers, physicians, and others. In December 2005, Praestantia was awarded a Professional Services Agreement for Anesthesia Services (Agreement) with Providence Newberg Hospital in Newberg, Oregon. The contract term was for three years, beginning January 1, 2006, during which time the hospital agreed to engage Praestantia for anesthesia services on an exclusive basis. Praestantia agreed to designate one of its 2 - OPINION AND ORDER members as anesthesia manager to coordinate services to the hospital's surgical suites, procedure and recovery rooms, and other departments. The Agreement provided that Praestantia and each of its anesthesia members were independent contractors. Bergen was the anesthesia manager. To fulfill Praestantia's duties under the Agreement, he recruited three other CRNAs - Whyte, Cobb, and Wray - to join Praestantia through their professional corporations. Bergen asserts that he knew Whyte was a person of color when Whyte was asked to join Praestantia. Plaintiffs dispute the assertion that Whyte was "recruited1I and instead maintain that Whyte was recommended to Bergen by a mutual acquaintance and colleague, and that Bergen interviewed Whyte by telephone and was unaware of his race. Effective January 31, 2006, Praestantia's Operating Agreement was amended to include the professional corporations of Whyte, Cobb, and Wray. Each member owned a portion of the LLC and Under the Amended maintained its own malpractice insurance. Operating Agreement, Praestantia's Director possessed the authority to remove any member if deemed appropriate in his "sole discretion," and the sole remedy for removal was return of the member's capital contribution. Bergen was named as Director. In November or December 2007, Bergen decided to remove Whyte PC from membership in Praestantia, effective December 1, 2007, and Praestantia returned plaintiffs1 capital contribution. Bergen 3 - OPINION AND ORDER first presented Whyte with a separation agreement based on wunsatisfactory work performance Bergen Decl., Ex. E. and professional concern^.^^ Bergen subsequently presented a second Id. separation agreement "[dlue to issues known to you.I1 - Ex. F. Bergen asserts that the removal was based on Whytefs deteriorating professionalism, clinical complaints, compromised patient care, lack o E communication, lack of responsiveness, lapses of judgment, : and complaints of sexual misconduct asserted by female hospital staff. Whyte denies these allegations. After Whyte PC was removed from Praestantia, Bergen became aware of additional instances of explicit sexual harassment by Whyte toward several female hospital staff members. Bergen states that had he known the severity of the complaints, he would have sought Whyte PC's removal from Praestantia earlier. Whyte denies these allegations and asserts that his race was the sole motivating factor in his removal from Praestantia. Sometime after Whyte PC's removal, Bergen was contacted by Providence St. Vincent Medical Center regarding Whytels creden.:ialing application. The parties dispute whether Bergen provided the information that was requested. STANDARD S-lmmary judgment is appropriate l1 if the pleadings, the discovery and disclosure materials on file, and any a�f idavits show that there is no genuine issue as to any material fact and that the 4 - OPINION AND ORDER movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The materiality of a fact is determined by the substantive law on the issue. T.W. Elec. Serv., Lnc. v. Pac. Elec. Contraztors Ass'n., 809 F . 2 d 626, 630 (9th Cir. 1987) . The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex C o m . v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuins issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. I . at d 324. A fact issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobbv, Inc., 477 U.S. 242, 248 , (1986) . The court must resolve all reasonable doubts as to the existexe of genuine issues of material fact against the moving party and construe all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. T.W. Elec. , 809 F . 2 d at 630. However, the Ninth Circuit has refused to find a genuine issue of fact where the only evidence presented is , "uncor:roboratedand self-servingwtestimony. Kennedv v. Aw~lause Inc., - .3O F.3d 1477, 1481 (9th Cir. 1996). DISCUSSION A. Race Discrimination P:Laintiffs allege race discrimination against all defendants 5 - 0P:INION AND ORDER under 42 U.S.C. B 1981 and against Praestantia under Or. Rev. Stat. 5 659A.030. Defendants move for summary judgment, arguing that do not establish a prima facie case of race plaintiffs discrinination, and that Whyte PC was removed from Praestantia membership for legitimate and non-discriminatory reasons relating to Whyte's declining performance and misconduct involving female hospital staff . Section 1981 Itprohibitsracial discrimination in the making and enforcement of private contracts. 160, 168 (1976). Runvon v. McCrary, 427 U.S . A successful S 1981 claim requires proof of Firefiqhters Local Union No. 1784 v. discriminatory intent. Stotts, 467 U.S. 561, 583 n.16 (1984); El-Hakem v. BJY Inc., 415 F.3d 1368, 1073 (9th Cir. 2005) ( S 1981 was intended to protect persons subjected to llintentionaldiscrimination" based on their race CIX ethnicity). Plaintiffs concede they have no direct Plaintiffs cite no comment, either evidence of discrimination. written or spoken, made by any defendant to any person that disparaged or referenced Whyte s race or color. Further, Whyte could :identify no overt discriminatory conduct by plaintiffs, and no other person or hospital staff member observed actions or heard actions that were discriminatory. Kelley Decl., Ex. A (Whyte Depo., pp. 63-66, 115); Second Kelley Decl., Ex. A (Whyte Depo., pp. 11, 12-14). In the absence of direct evidence of discriminatory animus, 6 - OPINION AND ORDER plaintiffs may establish discriminatory intent under the Title VII McDonnell Douslas burden-shifting scheme. See McDonnell Douslas CorD. v. Green, 411 U.S. 792, 802-803 (1973); Metover v. Chassman, 504 F.3d 919, 930 (9th Cir. 2007) ("a claim under 5 1981 follows the same legal principles as those applicable in a Title VII case1'). Under this approach, plaintiffs bear the initial burden of establishing a prima facie case of discrimination. Texas Depltof Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douslas, 411 U.S. at 802 . Plaintiffs must show that: l 1) Whyte belonged to a protected class; 2) Whyte was qualified for his job; 3) Whyte was subjected to an adverse employment action; and 4) similarly situated employees not in Whytels protected class received more favorable treatment, or other circumstances surrounding the adverse employment action "give rise to an inference of discrimination.'! Burdine, 450 U.S. at 253; see also McDonnell Douqlas, 411 U.S. at 802; Kanq v. U. Lim Am., Inc., 296 F.3d 810, 818 (9th Cir. 2002). If plaintiffs present a prima defendants to articulate facie case, the burden shifts to legitimate, nondiscriminatory reasons for plaintiffs1 removal from Praestantia. Burdine, 450 U.S. at 253. If defendants do so, the burden shifts back to plaintiffs to show that defendants' reasons 'Though Oregon courts have not adopted the burden-shifting analysis under McDonnell Douslas or Burdine, plaintiffs must establish a prima facie case of discrimination to support their state law claim under Or. Rev. Stat. � 659A.030. See Henderson v. Jantzen, Inc., 79 Or. App. 654, 657-58, 719 P.2d 1322 (1986). 7 - OPINION AND ORDER are pretextual. I. d "The requisite degree of proof necessary to establish a prima facie case for Title VII ... on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence." Chuanq v. Univ. of Calif. Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000) (quoting Wallis v. J.R. Sim~lot Co., 26 F.3d 885, 889 (9th Cir. 1994)). At the same time, "purely conclusory allegations of alleged discrimination, with no concrete, relevant particulars, will not bar summary judgment." Forsbers v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir. 1988). Upon careful review of the record, I find that plaintiffs fail to produce any evidence, aside from Whytels own conclusory statements, permitting an inference that plaintiffs' removal from Praestantia membership was motived by racial animus. Notably, plaintiffs1 devote the majority of their arguments to disputing the accuracy of underlying events relied on by Bergen in removing Whyte PC from Praestantia. However, before the court considers defendants' proffered non-discriminatory reasons, the initial burden rests with plaintiffs to establish a prima facie case of discrimination. While Whyte was a member of a protected class, was arguably qualified for his position, and suffered an adverse employment action, plaintiffs fail to produce a shred of evidence that he was treated differently from other Praestantia members, or that the circumstances surrounding his removal otherwise give rise 8 - OPINION AND ORDER to an inference of discrimination. Whytelsdeposition testimony and declaration are replete with conclusory allegations of unfair treatment and discrimination; however, there is an absence of factual support for his assertions. In fact, Whytels testimony contradicts many of his allegations. For example, in his declaration Whyte contends that he was not "recruited," nbefriended,uor Nwelcomeduby any of the individual defendants, that no individual defendant lived in Newberg, and that Bergen was unaware of Whytels race before offering him membership in Praestantia. Whyte Decl., pp. 2-3. However, Whytels sworn Whyte deposition testimony rebuts each of these assertions. admitted that he was recruited, that he considered Cobb and Wray friends, that Cobb lived in the same Newberg neighborhood, and that he engaged in social events with Wray and Cobb, such as meeting Wray in Seattle and going skiing with Cobb. Kelley Decl., Ex. A (Whyte Depo., p. 178-79); Second Kelley Decl., Ex. A (Whyte Depo., pp. 185, 186, 197-98). Whyte also testified that Bergen met him and was aware of his race before joining Praestantia. Second Kelley Decl., Ex. A (Whyte Depo., p. 180); see also Second Bergen Decl., p. 2. submitting a Plaintiffs cannot create a genuine issue of fact by declaration that conflicts with Whytels sworn deposition testimony. Nelson v. City of Davis, 571 F.3d 924, 927 (9th Cir. 2009) . Whyte also asserts that defendants treated him as though "he 9 - OPINION AND ORDER should consider it a privilege to work with theml1l but provides no specific factual assertion to support this statement. Whyte Decl., p. 3. Whyte further states that although he "worked harderw and was "more skilledn than any of the individual defendants, he was "met with efforts to keep his income downm so he would not earn more than individual defendants. I . Again, Whyte provides no d factual support for these assertions and states that he willingly offered to cover more procedures and earned more as a result. Kelley Decl., Ex. A (Whyte Depo., p. 35); Plaintiffs1 Opposition, p. 4. The record reflects that Whyte PC earned more than other Praestantia members during his tenure, and no evidence supports Whyters statement that earnings. defendants attempted to curtail his Second Bergen Decl . , p. 5; Kelley Decl., Ex. A (Whyte Though Whyte testified that Bergen proposed a Depo., p. 35). revised reimbursement plan, it was not implemented during Whytets tenure. Second Kelley Decl., Ex. A (Whyte Depo., p. 11-12). Plaintiffs also argue that defendants required Whyte to take the most difficult cases that "other members could not handle," relegated him to unfavorable schedules, and required him to cover calls for other members. Plaintiffs1 Opposition, p. 6.2 Plaintiffs offer no factual evidence of any individual member's schedule to substantiate this assertion, and - as explained above - Whytels 2These allegations are not contained in Whytels Declaration. 10 - OPINION AND ORDER deposition testimony contradicts it. Whyte testified that both he and Cobb were asked to cover calls more frequently, because they lived closer to Providence Newberg Hospital than Bergen or Wray did.3 Second Kelley Decl., Ex. A (Whyte Depo., p. 197-98). Thus, plaintiffs do not show that Whyte was singled out or treated differently in terms of scheduling or covering calls. Whyte also asserts that defendants did not treat him as an equal member and held meetings without him. Whyte Decl., p. 3. However, Whyte testified that was a member of Praestantia with equal voting rights, and that he was informed of meetings conducted on behalf of Praestantia. Second Kelley Decl., Ex. A (Whyte Depo., p. 19-20). Minutes of Praestantia meetings further reflect that Whyte was present at all meetings and participated in discussions. Second Bergen Decl., pp. 5-6 and Ex. A. Nonetheless, Whyte testified that he believed he was excluded from a meeting regarding Wray' s membership. I . Ex. A (Whyte Depo., p. 14) . d However, plaintiffs present no evidence that Whyte was approved as a member prior to Wray, or that Whyte was excluded from a meeting involving Wray' s membership. To the contrary, Praestantia's Amended Operating Agreement reflects that Whyte and Wray became members 3~ergen also states that the anesthesia work schedule is prepared months in advance and identifies who is on-call and who is scheduled for elective surgeries. Bergen explains that because the patients, cases, and physicians are not finalized until the night prior to surgery, it would be impossible to "cherry-pick" lengthy, lucrative, or interesting cases. Second Bergen Decl., p. 3. 11 - OPINION AND ORDER together. Bergen Decl., Ex. B. Whyte also testified that a conversation with Cobb bolstered his belief that he was excluded from meetings. Apparently, Whyte and Cobb were walking in their neighborhood when Cobb told Whyte that he was "under a microscope," information Whyte believed was discussed among Bergen, Cobb, and Wray. A (Whyte Depo., p. 19). Second Kelley Decl., Ex. Again, plaintiffs provide no factual support for this assertion, aside from Whyte's speculation that the information vlseemedw have been "garnered from the three.Ir to I. d In fact, Cobb testified that he told Whyte that all of the members, because of ongoing including Whyte, were "under the rni~roscope~~ contract negotiations, and that Whyte needed to "be professionaln and "get the job done." Crispin Decl., Ex. G, p. 4. Such evidence does not support an inference of discrimination. Whyte also contends that individual defendants interjected themselves in "his private life," while the romantic endeavors of others were ignored and not the subject of gossip. Whyte Decl., p. 3. Presumably, Whyte refers to the extra-marital affair he admittedly had with a female hospital staff member during his tenure with Praestantia. Plaintiffs provide no evidence that life, other than Cobbls defendants meddled in his personal testimony that he approached Whyte about his marital troubles and believed Whytels extramarital affair with a hospital staffer "was not the image that Praestantia wanted to promote at a small 12 - OPINION AND ORDER community hospital." Crispin Decl . , Ex. G I p. 5. Such evidence does not create an inference of racial discrimination. Whyte also asserts that Bergen treated him differently from other Praestantia members. Whyte contends that Bergen directed him to stop calling patients and/or sending patients flowers the night before a procedure, because no physician or other Praestantia member did so. Even if true, such evidence fails to support an inference that Whyte was singled out or treated differently from other Praestantia members. Further, the record reflects that this issue was discussed at several Praestantia meetings and that defendants preferred consensus and a consistent policy on this issue. Second Bergen Decl., pp. 4, 6, 8 and Ex. A. Defendants nonetheless later learned that, contrary to the members1 agreement, Whyte continued to send flowers to patients, even though the patients1 physicians found it inappropriate. Bergen Decl., p. 14; Crispin Decl., Ex. E, p. 5. Whyte also states that, unlike other Praestantia members, Bergen llcontrolledTT communications and criticized his retention his of a Texas cell phone number. Whyte Decl., p. 4. However, over Whytels plaintiffs produce no evidence of Bergen's T1controlN communications, and the documents submitted reflect that hospital staff could not contact Whyte via his Texas cell number and that Whyte was reminded to change his number to facilitate such communication. Second Bergen Decl., Ex. A, p. 2. Whyte fails to 13 - OPINION AND ORDER present evidence that Bergen's concern over Whytels communication constitutes disparate treatment. Finally, Whyte asserts that Bergen scheduled Praestantia meetings on short notice and required attendance of Praestantia members at such meetings and at meetings of the Oregon Association of Nurse Anesthetists (ORANA) and other organizations. Decl., p. 4. Whyte Plaintiffs do not argue or provide evidence that Bergen singled Whyte out by mandating attendance at LLC meetings or encouraging attendance at ORANA or other meetings. In fact, Whyte testified that Bergen wanted all Praestantia members to attend such meetings. Kelley Decl., Ex. A (Whyte Depo., p. 30); Second Bergen Decl., Ex. A, pp. 2, 5. Whyte also admitted that he missed more ORANA meetings than he attended, even though he was on the ORANA Board. Kelley Decl., Ex. A (Whyte Depo., pp. 29-30). Given the paucity of "concrete, relevant particular^^^ and Whytelscontradictory deposition testimony, I find that plaintiffs fail to establish a prima facie case of race discrimination. Forsberq, 840 F.2d at 1419. Moreover, even if plaintiffs established a prima facie case, defendants present evidence of legitimate, non-discriminatory reasons for Whyte PC's removal from Praestantia, including reports of clinical performance concerns, declining professionalism and complaints of sexual misconduct. Bergen Decl., pp. 6-14; Crispin Decl., Ex. E, pp. 2-6 (Bergen's testimony describing complaints 14 - OPINION AND ORDER from scrub nurse on behalf of surgeon regarding Whytels excessive telephone use during surgery; from a physician regarding Whytels inappropriate sexual comments; and from others regarding two complaints of additional, inappropriate sexual comments); id. Ex. G, p. 4 (Cobb testimony regarding complaints of sexual misconduct by Whyte) . Further, plaintiffs present no specific and substantial evidence suggesting that Bergen's reasons were pretextual. "To show pretext using circumstantial evidence, a plaintiff must put forward specific and substantial evidence challenging the credibility of the employer's motives." Vasauez v. County of Los Anseles, 349 F.3d 634, 642 (9th Cir. 2003) ; accord Coshlan v. American Seafoods Co. LLC., 413 F.3d 1090, 1085 (9th Cir. 2005) ("But when the plaintiff relies on circumstantial evidence, that evidence must be 'specific and substantial1 to defeat the employer s motion for summary judgment.l1 ) . Plaintiffs contend that at the time of his decision, Bergen was not aware of the numerous sexual harassment allegations against Whyte that defendants cite in their supporting memorandum. However, as noted above, plaintiffs do not dispute that Bergen was aware of at least three sexual misconduct complaints, along with other complaints of Whytefs behavior and clinical performance. Plaintiffs1 Opposition, pp. 23-24; Crispin Decl., Ex. E, pp. 2-6, Ex. G, p. 4; Bergen Decl., pp. 6-8, 10-12. Although plaintiffs 15 - OPINION AND ORDER contest the factual accuracy and/or seriousness of the underlying events that led to the complaints, plaintiffs do not dispute that Bergen received such complaints against Whyte or otherwise had knowledge of such complaints. In judging whether proffered I legitimate non-discriminatory reasons are Il1false, it is not important whether they were objectively false . ... Rather, courts 'only require that an employer honestly believed its reason for its actions, even if its reason is foolish or trivial or even baseless.111 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, Cir. (quoting Johnson v. Nordstrom, Inc., (emphasis in original) . 4 727, 733-34 (7th Cir. 2001)) Plaintiffs also assert that Bergen did not advise him of the specific reasons for his removal, other than to assert performance and professionalism concerns and declining credibility. Kelley 4Defendants also present after-acquired evidence of additional complaints and reports of sexual harassment and other conduct, including back and shoulder rubs, that made female hospital employees uncomfortable. Bergen Decl., pp. 16-17; Kelley Decl., Exs. B-F; Crispin Decl., Exs. E l H, I, J. Not only does this evidence lend support to Bergen's stated reasons for Whytels removal, no reasonable trier of fact could find that Bergen would not have removed Whyte from Praestantia had he known the extent of the complaints, given their number and severity, the hospital policy against sexual harassment, and Bergen's discretionary authority to remove members. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1070-71 (9th Cir. 2004) (after- acquired evidence doctrine precludes or limits remedies for wrongful termination of employment "if the employer later 'discovers1 evidence of wrongdoing that would have led to the employee's termination had the employer known of the misconductu); see also O'Dav v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 762 (9th Cir. 1996) (statement of employer corroborated by company "common ) senser1. 16 - OPINION AND ORDER Decl., E x . A (Whyte Depo., p. 192); Second Kelley Decl., Ex. (Whyte Depo., p. 206). Absent A anv evidence of racial animus, however, I cannot infer discrimination based solely on defendantsf alleged reluctance to provide specific reasons for plaintiffs' removal, particularly when the mended Operating Agreement granted Bergen the sole and discretionary authority to take such action, and Bergen was the person who both recruited and removed Whyte within a relatively short period of time. See Bradley v. Harcourt, Brace & CO., 104 F.3d 267, 270-71 (9th Cir. 1996) (If [Wlhere the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive. " ) . In sum, plaintiffs present nothing more than conclusory assertions that defendants must have been motivated by discriminatory intent, assertions that are insufficient to survive summary judgment. Collinss v . Lonqview Fibre Co. , 63 F.3d 828, 834 (9th Cir. 1995) (conclusory assertions that employer "must have had a discriminatory intent that claim, are ... without other facts to substantiate to avoid summary insufficient . judgmentg1) Accordingly, defendantsg motion is granted as to plaintiffs1 federal and state claims of race dis~rimination.~ 'Defendants also argued that plaintiffs1 state law claim under Or. Rev. Stat. � 659A.030 must fail because Praestantia was not Whytels employer. While I agree that the evidence does not 1 7 - O P I N I O N AND ORDER B. Intentional Interference With Economic Relations Plaintiffs allege that defendants intentionally interfered with plaintiffsr contractual relationships by removing Whyte PC from Praestantia for improper purposes and interfering with his economic relationship with Providence Newberg Hospital. Plaintiffs also allege interference with prospective economic relations based on Bergen's refusal to provide information to Providence St. Vincent Medical Center regarding Whyte's credentialing application, in retaliation for Whytels assertion of discrimination. Under Oregon law, a party may recover damages for wrongful interference with a contract or prospective economic advantage. Warn~lerv. Palmerton, 250 Or. 65, 72-73, 439 P . 2 d 601 (1968). The tort protects "the interest of the individual in the security and integrity of the contractual relations into which he has entered." Id. - at 73, 439 P.2d 601. To establish intentional interference, plaintiffs must show the following elements: (1) the existence of a professional or business relationship (which could include, e . g . , a contract or a prospective economic advantage), (2) intentional interference with that relationship, (3) by a third party, (4) accomplished through improper means or for an improper purpose, ( 5 ) a causal effect between the interference and damage to the economic relationship, and (6) damages. McGantv v. Staudenraus, 321 Or. 532, 535, 901 P.2d 841 (1995). For support an employment relationship, the failure to establish a prima facie case of race discrimination precludes this claim. Bergen Decl., pp. 4-5 and Ex. B; Kelley Decl., Ex. A (Whyte Depo., pp. 125-27). 18 - OPINION AND ORDER the reasons explained above, plaintiffs fail to establish that defendants removed Whyte PC from Praestantia membership based on discriminatory purposes. Plaintiffs also allege defendants' removed Whyte PC from Praestantia to secure for themselves all of the economic benefit of providing anesthesia services to Providence Newberg. However, plaintiffs again fail to provide evidence to support this allegation, other than Whytelsconclusory assertions. For the same reason, plaintiffs fail to show intentional interference with prospective economic relations. Although Bergen admitted that he did not complete a work history questionnaire regarding Whyte, Bergen stated that he received a voicemail message from a Providence St. Vincent physician in regard to Whyte. The physician did explain the reason for the call, and Bergen contacted the credentialing office secretary at Providence St. Vincent for further direction. Crispin Decl., Ex. E, pp. 9-10. At her direction, Bergen provided the dates of Whytels service and understood that no further information was required. I . The d record also reflects that Bergen sent an email with Whyte's dates of service to the requesting physician and explained that he could provide no further information on the advice of counsel, given that plaintiffs had filed a compliant against defendants at that time. Crispin Decl., Ex. K; see also id. Ex. E, p. 10. Plaintiffs provide no evidence to rebut Bergen1stestimony or to show that Bergen1sactions actually interfered with plaintiffs1 19 - OPINION AND ORDER prospective economic relationship with Providence St. Vincent, or that he suffered damages as a result. Therefore, summary judgment is appropriate on this claim. C. Covenant of Good Faith and Fair Dealing Next, plaintiffs allege that Praestantia and the defendant LLCs breached the covenant duty of good faith and fair dealing by removing Whyte PC from Praestantia membership. Oregon law implies a duty of good faith and fair dealing in the performance of every contract consistent with the objectively reasonable contractual expectations of the parties. partners hi^ See U~town Heishts Assoc. Ltd. v. Seafirst C o r ~ . ,320 Or. 638, 644-645, 891 P.2d 639 (1995). Here, Praestantia's Amended Operating Agreement granted Bergen sole discretion in removing any member from the LLC, and plaintiffs fail to present evidence that Bergen was motivated by racial animus or other improper motive contrary to the reasonable expectations of the parties. Bergen Decl., Ex. B. Therefore, this claim cannot survive summary judgment. D. Defamation Finally, plaintiffs allege defamation against Bergen and Wray. Plaintiffs contend that Bergen and Wray represented to a physician that Whyte was terminated from Praestantia due to sexual harassment or '?wordsto such effect. Complaint, p. 10. Plaintiffs also assert that Wray represented to the President of ORANA that Whyte was "not f i t w to represent ORANA. 20 - OPINION AND ORDER "The elements of a claim for defamation are: (1) the making of a defamatory statement; ( 2 ) publication of the defamatory material; and (3) a resulting special harm, unless the statement is defamatory per se and therefore gives rise to presumptive special harm." Natll Union Fire Ins. Co. v. Star~lex o r ~ . ,220 Or. App. C 560, 584, 188 P.3d 332 (2008). To be actionable, the communication must be both false and defamatory. Reesman v. Hiqhfill, 327 Or. 597, 603, 965 P.2d 1030 (1998). A defamatory statement is one that subjects another to hatred, contempt, or ridicule; tends to diminish the esteem, respect, goodwill, or confidence in which the other is held; or excites adverse, derogatory or unpleasant feelings or opinions. I. d Generally, a statement of opinion is not actionable unless the recipient could reasonably conclude that the statement was based on undisclosed defamatory facts. Hickey v. Settlemier, 141 Or. App. 103, 110, 917 P.2d 44 (1996). Here, plaintiffs present no evidence that Bergen or Wray told a third party that Whyte was removed due to sexual harassment. Further, plaintiffs do not dispute that Bergen received at least three complaints of poor performance and sexual harassment by Whyte. Crispin Decl., Ex. E, pp. 2-6; Bergen Decl., pp. 6-14; Crispin Decl., Ex. E, pp. 2-6. Given that plaintiffs fail to show that Bergen's reliance such complaints in removing Whyte PC was pretextual, Bergen's statement is true, even if Whyte denies that he engaged in sexual harassment. 21 - OPINION AND ORDER Further, I find that Wraylsadmitted statement that Whyte was not the "best candidate" to represent ORANA at a mid-year assembly, because of Whytels absence at board meetings, is one of opinion based on known facts and not actionable, Wray Decl., pp. 2-3. Accordingly, defendants are entitled to summary judgment. CONCLUSION Defendants1 Motion for Summary Judgment (doc. 34) is GRANTED. I T I S SO ORDERED. Dated this ay of December, 2009. Ann Aiken Chief United States District Judge 22 - OPINION AND ORDER

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