
    Kimberly DAY, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.
    No. 2:09-CV-1261-SU.
    United States District Court, D. Oregon, Portland Division.
    Nov. 1, 2011.
    
      David M. Rose, Minniek-Hayner, PS, Walla Walla, WA, Holly M. Lloyd, Judy Danelle Snyder, Law Offices of Judy Snyder, Portland, OR, for Plaintiff.
    Calvin L. Keith, Nicholle Y. Winters, Perkins, Coie, LLP, Portland, OR, for Defendant.
   ORDER

BROWN, District Judge.

Magistrate Judge Patricia Sullivan issued Findings and Recommendation (# 58) on July 8, 2011, 2011 WL 5289734, in which she recommended the Court grant in part and deny in part Defendant United Parcel Service, Inc.’s Motion (# 27) for Summary Judgment. Defendant filed timely Objections (# 60) to the Findings and Recommendation. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).

For the reasons that follow, the Court ADOPTS Magistrate Judge Sullivan’s Findings and Recommendation.

When any party objects to any portion of the Magistrate Judge’s Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge’s report. 28 U.S.C. § 636(b)(1). See also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc); United States v. Bernhardt, 840 F.2d 1441, 1444 (9th Cir.1988). For those portions of the Findings and Recommendation to which the parties do not object, the Court is relieved of its obligation to review the record de novo as to this portion of the Findings and Recommendation. Reyna-Tapia, 328 F.3d at 1121.

BACKGROUND

On October 27, 2009, Plaintiff, formerly employed by Defendant UPS as a tractor-trailer “feeder driver,” filed her Complaint in this Court seeking redress for unlawful discrimination and adverse employment actions that Defendant allegedly took against her. In her Complaint Plaintiff asserts the following three claims against Defendant: (1) sex discrimination on the basis of hostile work environment in violation of Oregon Revised Statute § 659A.030; (2) retaliation against Plaintiff for opposing Defendant’s unlawful employment practices under Oregon Revised Statute § 659A.030(l)(f) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(m); and (3) common-law wrongful discharge. Plaintiff subsequently withdrew her wrongful-discharge claim.

On January 31, 2011, Defendant filed its Motion for Summary Judgment as to each of Plaintiffs remaining claims.

On July 8, 2011, the Magistrate Judge issued Findings and Recommendation in which she recommends the Court grant in part and deny in part Defendant’s Motion for Summary Judgment as follows: (1) grant Defendant’s Motion as to Plaintiffs claim for sex discrimination based on hostile work environment and (2) deny Defendant’s Motion as to Plaintiffs claim for Defendant’s unlawful retaliation against Plaintiff for engaging in protected activity.

On July 25, 2011, Defendant filed timely Objections to the Findings and Recommendation.

STANDARDS

Summary judgment is appropriate when “there is no genuine, dispute as to any material fact-and the movant is entitled to judgment as a matter of law.” Washington Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir.2011). See also Fed. R.Civ.P. 56(a). The. moving party must show the absence of a dispute as to a material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.2005). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine dispute as to a material fact for trial. Id.

A dispute as to a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir.2010). “Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues.” Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir.2004) (citing Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No.1936, 680 F.2d 594, 598 (9th Cir.1982)).

A “mere disagreement or bald assertion” that a genuine dispute as to a material fact exists “will not preclude the grant of summary judgment.” Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D.Cal., Jan. 20, 2011) (citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.1989)). See also Jackson v. Bank of Haw., 902 F.2d 1385, 1389 (9th Cir.1990). When the nonmoving party’s claims are factually implausible, that party must “come forward with more persuasive evidence than otherwise would be necessary.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir.2009) (citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir.1998)).

The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir.2006). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Id. “[W]e require very little evidence to survive summary judgment in a discrimination case, because the ultimate question is one that can be resolved through a searching inquiry-one that is most appropriately conducted by the fact-finder, upon a full record.” Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir.) (citations omitted), cert. denied, 519 U.S. 927, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996).

DISCUSSION

Neither party raises any objection to that portion of the Findings and Recommendation in which the Magistrate Judge recommends the Court grant Defendant’s Motion as to Plaintiffs claim for sex discrimination based on a hostile work environment. The Court has reviewed the legal principles relating to that portion of the Findings and Recommendation and does not find any legal error.

Defendant, however, objects to the Magistrate Judge’s recommendation to deny Defendant’s Motion as to Plaintiffs claim for retaliation.

Plaintiff asserts in her Complaint that Defendant retaliated against her for making complaints of unlawful sex discrimination that began in October 2006 and culminated in Plaintiffs filing a complaint with the Equal Employment Opportunity Commission in July 2008. Specifically, Plaintiff alleges Defendant retaliated by suspending her from driving her route until she attended a “fitness-for-duty” examination to obtain a Department of Transportation medical certification and by finally terminating Plaintiffs employment on December 3, 2008.

I. Plaintiffs Claim of Retaliation.

Defendant objects to the Magistrate Judge’s recommendation to deny Defendant’s Motion as to Plaintiffs claim for retaliation arising from Plaintiffs complaint of unlawful sex discrimination on the following grounds: (1) Plaintiff has not satisfied her prima facie burden to show a causal connection between her discrimination complaint and her alleged adverse employment actions; (2) Plaintiff has not satisfied her prima facie burden to show that Defendant’s decision to require Plaintiff to take a “fitness-for-duty” evaluation and to obtain a DOT medical certification was an adverse employment action; and (3) Plaintiff has not provided sufficient evidence to show that Defendant’s grounds for requiring Plaintiff to obtain the DOT certification and for terminating Plaintiff were pretext for retaliation.

A. Standards.

Under Title VII “[t]o establish a prima facie case [of retaliation], the employee must show that he engaged in a protected activity, he was subsequently subjected to an adverse employment action, and that a causal link exists between the two.” Dawson v. Entek Intern., 630 F.3d 928, 936 (9th Cir.2011). See also Manatt v. Bank of Am., NA, 339 F.3d 792, 800 (9th Cir.2003). Complaining about race discrimination to a supervisor is a protected activity. Manatt, 339 F.3d at 800 n. 8. If a plaintiff has established a prima facie retaliation claim, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. (citation omitted). If the defendant then “articulates such a reason, [the plaintiff] bears the ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory motive.” Id. (quotation omitted).

B. Magistrate Judge’s Decision.

The Magistrate Judge found Plaintiff adequately stated a prima facie claim of retaliation by Defendant arising from Plaintiffs complaints of unlawful discrimination. The Magistrate Judge noted the parties did not dispute that Plaintiff had engaged in protected activity when she made complaints to her supervisor and to the EEOC of unlawful sex discrimination. The Magistrate Judge also noted the parties did not dispute Plaintiffs termination was an adverse employment action. The Magistrate Judge found a rational juror could conclude Defendant’s decision to suspend Plaintiff from driving her route and requiring her to take a “fitness-for-duty” exam and to obtain a DOT certification “would deter reasonable employees from complaining about title VII violations.” See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.2000). In addition, the Magistrate Judge found there were genuine disputes of material fact as to the causation element and concluded Plaintiff made a sufficient showing of a causal link based on the temporal proximity between Plaintiffs discrimination complaints and the adverse employment actions taken against Plaintiff by Defendant. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir.2002) (“causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity,” but 18 months was too long to infer causation). See also Dawson, 630 F.3d at 937.

Finally, despite Defendant’s “persuasive evidence” of nonretaliatory bases for its actions and the Magistrate Judge’s assessment that this case presented a “close call,” the Magistrate Judge found Plaintiff provided sufficient evidence of pretext to survive Defendant’s Motion for Summary Judgment. See Yartzoff v. Thomas, 809 F.2d 1371, 1377 (9th Cir.1987) (Summary judgement is “generally unsuitable in Title VII cases in which the plaintiff has established a prima facie case because of the ‘elusive factual question’ of intentional discrimination.”) (quoting Miller v. Fairchild Indus., Inc., 797 F.2d 727, 732 (9th Cir.1986)).

C. Analysis.

1. Plaintiffs Prima Facie Case: Causal Connection.

Defendant objects to the Magistrate Judge’s conclusion that Plaintiff demonstrated a causal link between Plaintiffs protected activity (her October 2006 complaints to her supervisor, Paul Winans, and her July 2008 complaint to the EEOC about the pervasive use of sexually explicit and discriminatory language over public radio channels in the Portland, Oregon, UPS “feeder yard”) and the alleged adverse employment actions by Defendant (suspension of Plaintiff, the requirement that she obtain a DOT medical certification before permitting her to return to driving her route, and her ultimate termination). Specifically, Defendant contends the inference in favor of causation created by the timing between Plaintiffs discrimination complaints and Defendant’s alleged adverse employment actions is rebutted by the fact that the decisionmaker lacked knowledge of Plaintiffs protected activity. See Yartzoff, 809 F.2d at 1376. Defendant argues at length that Laurie Wahlstrom, a registered nurse and UPS Occupational Health Supervisor, was solely responsible for the decision to suspend Plaintiff from driving her route and to require a medical examination and DOT certification of Plaintiffs fitness to perform her duties and that Wahlstrom was unaware of any of Plaintiffs protected activity. As noted, the Magistrate Judge concluded there were issues of fact that precluded summary judgment as to this element of Plaintiffs claim.

a. Wahlstrom’s Knowledge.

Defendant maintains it is “undisputed” that Wahlstrom did not have knowledge of Plaintiffs protected conduct. Defendant contends any inference of causation created by the short timeframe between Plaintiffs EEOC complaint and her suspension from driving her route is undermined by the lack of direct evidence that Wahlstrom was aware of Plaintiffs engagement in any protected activity. Wahlstrom, in fact, attested she was unaware of Plaintiffs protected activity at the time she made the decision to suspend Plaintiff and to require the DOT certification. In addition, Wahlstrom testified the decision was hers alone and was based on the report by Winans that Plaintiff had failed to call in to determine whether her shift had been covered on a day that she had requested to be absent because she had taken sleep medication and overslept. In other words, it was solely a medical decision.

The record reflects Winans became aware of Plaintiffs EEOC complaint in early September 2008. On approximately September 17, 2008, Don Tefft, Human Resources Manager, contacted Winans to investigate Plaintiffs complaints of sex discrimination. Winans, however, could not locate any records of the complaint nor could he demonstrate that he had followed up with Plaintiff about her complaints. A few days later on September 25, 2008, Winans orally disciplined Plaintiff for allegedly taking a truck that was scheduled for repair without first clearing it with the mechanic assigned to the vehicle. Plaintiff attested she, in fact, had obtained permission from the mechanic and that Winans had not spoken directly with the mechanic about the issue. As noted, on September 26, 2008, Plaintiff failed to call in to ensure her shift was covered, and, according to Plaintiff, she told Winans that she overslept due to the effects of her use of Lunesta, a sleep aid.

Defendant asserts Wahlstrom did not know about Plaintiffs protected activity. Plaintiff, however, maintained at oral argument that the high degree of coordination between Winans, his manager Ron Rude, and Tefft with Wahlstrom and the Portland Division Manager, Michael Rausch is circumstantial evidence that undermines Wahlstrom’s testimony. Although Rude, Winans, and Tefft each had knowledge of Plaintiffs protected activity, Wahlstrom and Rausch testified to a lack of such knowledge. The record is replete with emails and testimony about communications among these individuals coordinating UPS’s response to Plaintiffs complaints of sexual discrimination, her sleep and medication issues, and her attendance. Specifically, Plaintiff points out the record contains evidence that Winans and Wahlstrom emailed each other and spoke on the telephone concerning Plaintiff during the relevant period. In addition, Tefft and Win-ans shared adjacent offices in Portland during the relevant period, and the record reflects Tefft made numerous requests from Wahlstrom for documents related to Plaintiffs medical issues, which Wahlstrom attested was “unusual” and likely meant Tefft was involved in litigation.

b. Cat’s Paw Theory.

In addition, Plaintiff advances a “cat’s paw” theory of liability under which “Title VII may still be violated where the ultimate decision-maker, lacking individual discriminatory intent, takes an adverse employment action in reliance on factors affected by another decision-maker’s discriminatory animus.” See Galdamez v. Potter, 415 F.3d 1015, 1026 n. 9 (9th Cir.2005). Plaintiff cites Staub v. Proctor Hospital, the recent Supreme Court decision in which the Court elaborated on the cat’s paw theory of liability in a “very similar” statutory context. — U.S. -, 131 S.Ct. 1186, 1190-94, 179 L.Ed.2d 144 (2011) (assessing the cat’s paw theory of liability under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301, et seq., and expressly recognizing the similarity in application to Title VII’s assessment of the “motivating factors” behind an employer’s practices). In Staub the plaintiff alleged the discriminatory animus of a supervisor influenced an unbiased decisionmaker to terminate the plaintiff. Id. The Supreme Court held:

Animus and responsibility for the adverse action can both be attributed to the earlier agent (here, Staub’s supervisors) if the adverse action is the intended consequence of that agent’s discriminatory conduct. So long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable under USERRA. And it is axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm. Proximate cause requires only “some direct relation between the injury asserted and the injurious conduct alleged,” and excludes only those “link[s] that are too remote, purely contingent, or indirect.” Hemi Group, LLC v. City of New York, 559 U.S. 1, -, 130 S.Ct. 983, 989, 175 L.Ed.2d 943 (2010) (internal quotation marks omitted). We do not think that the ultimate decisionmaker’s exercise of judgment automatically renders the link to the supervisor’s bias “remote” or “purely contingent.” The decisionmaker’s exercise of judgment is also a proximate cause of the employment decision, but it is common for injuries to have multiple proximate causes.
Moreover, the approach urged upon us by Proctor gives an unlikely meaning to a provision designed to prevent employer discrimination. An employer’s authority to reward, punish, or dismiss is often allocated among multiple agents. The one who makes the ultimate decision does so on the basis of performance assessments by other supervisors. Proctor’s view would have the improbable consequence that if an employer isolates a personnel official from an employee’s supervisors, vests the decision to take adverse employment actions in that official, and asks that official to review the employee’s personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action. That seems to us an implausible meaning of the text, and one that is not compelled by its words.
But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified. We are aware of no principle in tort or agency law under which an employer’s mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of “fault.” The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision.

Id. at 1192-93 (footnote omitted).

On the basis of Staub, Plaintiff contends even if Wahlstrom was unaware of Plaintiffs protected activity, Winans’s retaliatory intent was reflected in his reports to Wahlstrom and was a “motivating factor” in Wahlstrom’s decision to suspend Plaintiff and to require her to obtain a new DOT medical certification. Specifically, Plaintiff contends Winans magnified Plaintiffs “sleep issues” when he reported them to Wahlstrom and others in order to retaliate against Plaintiff and to keep her from being able to drive for UPS. Plaintiff points to Winans’s notes of his conversation with Plaintiff, which reflect Plaintiff stated her sleep issues included driving her UPS route while drowsy. Plaintiff testified she did not make that statement and that Winans’s report to Wahlstrom and others was a motivating factor in her suspension in light of a recent accident involving a UPS truck driver who fell asleep at the wheel that had created heightened concern over drowsiness. Indeed, in a letter written by Wahlstrom on November 4, 2008, to a physician who was to perform Plaintiffs fitness-for-duty examination, Wahlstrom stated Plaintiffs use of prescription sleep aids made her drowsy while operating her UPS vehicle. Although Wahlstrom attested she did not know where or from whom she got that information, the record reflects Winans was the source of that information.

On this record the Court finds Plaintiff has provided sufficient evidence of a causal connection based on the inference created by the temporal proximity between her protected activity and the adverse employment actions taken by Defendant. Moreover, Plaintiff has provided sufficient circumstantial evidence to rebut Defendant’s attempt to undermine that inference by showing that Wahlstrom, the decisionmaker, may have had knowledge of Plaintiffs protected activity. In any event, Plaintiff has also provided sufficient evidence to make a prima facie case of causation based on the cat’s paw theory under Staub. The Court, therefore, concludes Defendant’s Objection is not a sufficient basis to modify the Findings and Recommendation.

2. Plaintiffs Prima Facie Case: Adverse Employment Action.

As noted, Defendant objects to the Magistrate Judge’s conclusion that the decision to suspend Plaintiff, to require her to take a “fitness-for-duty” examination, and to require her to obtain a DOT medical certification constitutes an adverse employment action. Specifically, Defendant maintains the adverse employment action must be taken by one with knowledge of the protected activity in order to be an adverse employment action. That argument, however, is squarely rejected by the Supreme Court in Staub. 131 S.Ct. at 1192-93. Defendant also asserts even thought the “driving while drowsy” statement appeared in Wahlstrom’s letter dated November 4, 2008, it was not in her original letter dated October 1, 2008, that explained the nature of Plaintiffs need for DOT recertification. According to Defendant, this fact shows Wahlstrom made the decision free from any of Winans’s biased statements. The Court, however, must view the facts in the light most favorable to Plaintiff, and on this record there is a permissible inference that one of the proximate causes of Wahlstrom’s decision was the allegedly fabricated report by Winans.

Defendant also emphasizes the process for requiring a UPS employee to be recertified on the basis of a medical condition is permitted under the collective bargaining agreement with its union employees. The Court notes, however, that even though the collective bargaining agreement likely authorizes progressive discipline and termination under certain circumstances, such authorization would not preclude their characterization as an adverse employment action. Ultimately the action must be measured from an objective standard: whether it would deter “reasonable employees from complaining about Title VII violations.” Brooks, 229 F.3d at 928. The record reflects Wahlstrom’s decision resulted in Plaintiff being unable to drive her route, being forced to accept work at a lower position to receive pay, being required to have a medical examination, and being required to obtain a certification she already had before being able to return to her position.

In addition, Plaintiff contends the recertification policy was unevenly enforced. Plaintiff points out that Wahlstrom had been made aware of Plaintiffs use of sleep aids in 2006 when Plaintiff requested accommodation for a regular work schedule to permit her to get necessary rest. Wahlstrom did not require Plaintiff to undergo a DOT recertification at that time. Plaintiff also adduced evidence from Win-ans that Defendant did not take similar actions when Winans reported a different driver had struggled with drowsiness while driving.

Accordingly, the Court agrees with the Magistrate Judge that Plaintiff has produced sufficient evidence that a rational juror could conclude Defendant’s action would deter reasonable employees from making discrimination complaints. Thus, the Court concludes Defendant’s Objection is not a basis to modify or to reject the Magistrate Judge’s Findings and Recommendation.

3. Evidence of Pretext.

Defendant also objects to the Findings and Recommendation on the ground that Plaintiff did not provide sufficient evidence to support her contention that Defendant’s reasons for taking adverse employment actions against Plaintiff were pretext for retaliation. Under the Title VII McDonnell Douglas burden-shifting framework, after a plaintiff has made a prima facie showing of retaliation and a defendant has proffered a legitimate, nonretaliatory basis for its actions, the plaintiff must show retaliation was more than likely the defendant’s motivation or that the defendant’s proffered explanation is not entitled to credence. See Cornwell v. Electra Cent. Cred. Union, 439 F.3d 1018, 1028 (9th Cir.2006). See also Harris v. Pameco Corp., 170 Or.App. 164, 178-79, 12 P.3d 524 (2000) (applies Title VII standard to retaliation claims under Oregon law).

a. DOT recertification.

Defendant maintains Wahlstrom’s basis for ordering Plaintiff to undergo a DOT recertification was solely in response to Plaintiffs oversleeping and on Wahlstrom’s concern about Plaintiffs medical issues surrounding her use of sleep aids. Defendant emphasizes it was concerned for the safety of its drivers and the public because of a recent drowsiness-related accident and contends it ordered other employees to undergo similar DOT recertifications.

The Court, however, agrees with the Magistrate Judge that a rational juror could reasonably conclude Defendant was more likely motivated by retaliation or that its reasons are not entitled to credence based on (1) shifting descriptions and fabrication of the severity of Plaintiffs “sleep issues,” (2) Winans’s unwarranted oral discipline of Plaintiff, and (3) the uneven application of the DOT recertification policy with respect to Plaintiff and other employees.

In addition, Plaintiff asserts when she went to the first appointment made by Defendant to obtain her fitness-for-duty examination on October 2, 2008, the receptionist at the physician’s office stated Plaintiff did not have an appointment and could see a physician at a different health facility a few blocks away. Plaintiff was examined at the other facility by a physician who was approved under the Collective Bargaining Agreement as a generally acceptable source of DOT certification examinations, and Plaintiff obtained a DOT certification from that physician. On her return to work, however, Defendant was unwilling to accept that certification on the ground that Wahlstrom had written a letter on October 1, 2008, to the physicians at Defendant’s chosen facility requesting them to address Plaintiffs sleep issues and medication in the examination. According to Wahlstrom, the physician who examined Plaintiff stated he was not aware of those issues. Plaintiff, however, disputes that fact and attested she told the examining physician about her use of Lunesta. In any event, Plaintiff argues she complied with Defendant’s policy and Defendant’s insistence that Plaintiff attend an examination at its chosen health facility evinces Defendant’s intent to control the outcome of the examination. Plaintiff emphasizes Wahlstrom attested she had a good working relationship with the health facility that Defendant selected for Plaintiffs examination.

Although Defendant set up Plaintiff with multiple additional appointments to have another fitness-for-duty examination, Plaintiff did not follow through with those appointments. Defendant ultimately fired Plaintiff.

b. Termination.

Defendant maintains its decision to terminate Plaintiffs employment was based on her repeated failure to attend the “fitness-for-duty” examination and to obtain her DOT medical certification in accordance with Defendant’s multiple requests.

The Court notes Plaintiffs termination was the result of her unwillingness to attend a second fitness-for-duty examination, and, to the extent the original decision to require such an exam was tainted by the bias of Winans or others, the ultimate result is causally linked to any such bias. Thus, Plaintiffs failure to comply with Defendant’s requests to follow through with the DOT recertification may well have been pretext for retaliation on the same grounds as set out above.

In addition, Plaintiff points to a late September 2008 set of emails between Winans; Rude; and Rausch, the Portland Division Manager. Rausch attested he forwarded an email to John Monahan, the Hermiston Manager, concerning late arrivals by drivers out of the Hermiston, Oregon, hub where Plaintiff worked. Winans responded to Rausch by stating there were discrepancies between the schedules in Portland and Hermiston that seemed to be the source of the problem. Winans also stated: “Please let me know what you need done, at this point I do not have anything to hold [Plaintiff] accountable for except that she took 10 minutes [sic ] meal on the way to Portland last night but she still arrived within her scheduled inbound time.” Rausch attested he did not have an intent or reason to single out Plaintiff for discipline and was not trying to hold her accountable for anything. At oral argument, Defendant provided a lengthy explanation as to the context of this email, but the Court must view this communication in the light most favorable to Plaintiff: ie., it was sent during the initial portion of the internal investigation of Plaintiffs EEOC complaint, it was near the time Winans disciplined Plaintiff for the use of a truck allegedly without mechanic approval, it was near the time Winans characterized Plaintiffs sleep issues as “driving while drowsy,” and the email singles out Plaintiff among the numerous drivers who worked out of the Hermiston hub.

On this record the Court agrees with the Magistrate Judge that a rational juror could conclude Defendant’s proffered explanations for the adverse employment actions it took against Plaintiff were pretext for retaliation.

In summary, the Court has performed a de novo review of the record in relation to each of the Objections raised by Defendant. The Court agrees with the Magistrate Judge that the decision to deny Defendant’s Motion as to Plaintiffs retaliation claim is a very close call, particularly as to Defendant’s reasons for deciding to suspend and to terminate Plaintiff. Nevertheless, the Court concludes on this record that none of Defendant’s Objections provide a basis to modify the Magistrate Judge’s Findings and Recommendation.

CONCLUSION

Accordingly, the Court ADOPTS Magistrate Judge Sullivan’s Findings and Recommendation (# 58). Accordingly, the Court GRANTS in part and DENIES in part Defendant UPS’s Motion (#27) for Summary Judgment as follows:

1. GRANTS Defendant’s Motion as to Plaintiffs claim for unlawful sex discrimination on the basis of hostile work environment and
2. DENIES Defendant’s Motion as to Plaintiffs claims for unlawful retaliation.

IT IS SO ORDERED.  