A panel of judges from the 9th U.S. Circuit Court of Appeals has reversed, in part, the ruling of a district court, which had granted summary judgment to the Eugene Emeralds Baseball Club, Inc., Elmore Sports Group, Ltd., and a supervisor in an employment dispute. Specifically, the panel found that plaintiff Nichole Ochs’ hostile work environment claim can continue against the defendants. It did, however, affirm the lower court’s ruling for the defendants on the plaintiff’s employment discrimination claim, finding that they had sufficient reasons to terminate her employment.
First, the court considered 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,’” wrote the court, citing Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1016 (9th Cir. 2018). “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, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (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. Campbell, 892 F.3d at 1017.”
To this point, Ochs “presented evidence that, for a period of roughly three years, 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).”
Furthermore, “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. 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.”
Turning to Ochs’s employment discrimination claim that Emeralds terminated her because of her sex, the court analyzed Ochs’s claims “through the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
“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. 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,” wrote the court. “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 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.”
The court also affirmed 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,” wrote the court, citing 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. HN6[ ] ‘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, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001).”
Attorneys of Record: (For Plaintiff — Appellant) Beth Creighton, Attorney, Michael E. Rose, Creighton & Rose, PC, Portland, OR; Eric Schnapper, University of Washington School of Law, Seattle, WA. (For Defendants — Appellees) Cassie K. Jones, Esquire, Attorney, Gleaves Swearingen, LLP, Eugene, OR.
Ochs v. Eugene Emeralds Baseball Club, Inc.; 9th Cir.; No. 17-36019; 5/30/19
