Lopez v. Jackson County

462                   March 6, 2024                No. 167

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                    Cristian LOPEZ,
                   Plaintiff-Appellant,
                             v.
                  JACKSON COUNTY,
                 Defendant-Respondent.
              Jackson County Circuit Court
                  20CV39438; A179039

  Benjamin M. Bloom, Judge.
  Argued and submitted January 12, 2024.
   William J. Macke argued the cause for appellant. Also on
the briefs was Matthew E. Zekala. Also on the opening brief
was Macke Frazier Law.
   Johan Pietila and Brett A. Baumann argued the cause
for respondent. On the brief was Brett A. Baumann.
  Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
  KAMINS, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)             463

        KAMINS, J.
         Plaintiff brought claims under ORS 659A.030
against defendant, Jackson County, after termination of his
employment at the Jackson County Juvenile Detention facility (the facility). He advanced two theories for why his termination was unlawful: First, he alleged that defendant violated ORS 659A.030(1)(f) by retaliating against him because
he had complained to supervisors about certain safety issues
at the facility and had filed an OR-OSHA complaint about
those same safety concerns. Second, he alleged that defendant’s stated reason for firing him—a use of force violation
against a youth—was actually pretext discrimination based
on his national origin, in violation of ORS 659A.030(1)(a), (b).
He appeals two trial court rulings: (1) the grant of summary judgment to defendant on the retaliation claim; and
(2) the grant of a directed verdict in favor of defendant on
the employment discrimination claim. We affirm.
         In his first assignment of error, plaintiff contends
for three reasons that the trial court erred in granting
defendant’s motion for partial summary judgment on his
retaliation claim. First, plaintiff argues that the trial court
improperly limited its consideration to evidence of the timing of his OR-OSHA complaint rather than considering evidence of all of the verbal complaints plaintiff had made over
his 13 years of employment. Second, plaintiff asserts that
evidence of his “co-worker’s inappropriate comments relating to [his] national origin” should also be considered on his
retaliation claim. Lastly, plaintiff argues that evidence of
the “temporal proximity” of the incident with the youth, his
formal complaint to OR-OSHA, and his termination raised
a genuine issue of material fact that precludes summary
judgment. Defendant responds that plaintiff’s first two
arguments are unpreserved.
        We conclude that plaintiff’s first argument is preserved. ORAP 5.45(1) provides that “[n]o matter claimed as
error will be considered on appeal unless the claim of error
was preserved in the lower court ….” In plaintiff’s First
Amended Complaint, he pled that he “reported concerns
relating to safety practices, facility security, … and other
concerns” to management throughout his employment. He
464                                  Lopez v. Jackson County

expounded on that argument during the summary judgment hearing, arguing that his retaliation claim was based
on “the culmination of verbal complaints that plaintiff
expressed over the years.” Thus, plaintiff alerted the trial
court and defendant that the OR-OSHA complaint was not
the sole basis for his retaliation claim. See State v. Walker,

, 258 P3d (2011) (A party must articulate
enough information to an opposing party or a trial court
“to be able to understand [a party’s] contention and to fairly
respond to it.”).
         However, plaintiff’s second argument is unpreserved. Plaintiff did not cite any facts relating to retaliation
based on his national origin either in the complaint or in the
summary judgment proceeding. Therefore, in reviewing the
first assignment of error, we consider only plaintiff’s first
argument—that the trial court improperly restricted its
analysis to evidence relating to the OR-OSHA complaint—
and his third argument—that evidence of the timing of
plaintiff’s filing of the OR-OSHA complaint and subsequent
termination raises a genuine issue of material fact.
          Turning to the merits, “[i]n reviewing the trial
court’s summary judgment ruling, we view the facts and
all reasonable inferences that may be drawn from them in
the light most favorable to the nonmoving party.” Medina v.
State of Oregon, 

, 

 (2016). On
May 11, 2020, plaintiff was involved in a physical altercation with a youth at the facility and was subsequently placed
on administrative leave while management conducted an
investigation into that incident. On May 18, plaintiff filed
an anonymous complaint to OR-OSHA about “certain practices” at the facility. On May 20, Ferguson, the deputy director of the facility, decided to terminate plaintiff. On May 21,
defendant sent a termination letter to plaintiff explaining
that he was terminated because he “failed to follow established protocols, used unnecessary and excessive force, and
[was] insubordinate.” The following day, defendant received
a letter from OR-OSHA notifying it of plaintiff’s complaint.
          In addition to evidence of his filing of the OR-OSHA
complaint, plaintiff testified that he had opposed defendant’s
“illegal practice” of keeping “doors unsecured and allow[ing]
Nonprecedential Memo Op: 

 (2024)            465

these youth to go into the areas that are not secured” by
verbally complaining to his direct supervisor and Ferguson
“numerous times.” Although he was unable to state exactly
how many times he had verbally complained, plaintiff noted
that it was “[m]ore than 20 times” throughout his 13 years
of employment.
         The trial court granted defendant’s motion for summary judgment dismissing plaintiff’s retaliation claim, concluding that “there is no evidence” that defendant “received
the OR-OSHA Complaint” before its decision to terminate
plaintiff. The trial court did not mention plaintiff’s additional verbal complaints in its ruling.
          ORS 659A.030(1)(f) provides that it “is an unlawful employment practice … [f]or any person to discharge,
expel or otherwise discriminate against any other person
because that other person has opposed any unlawful practice, or because that person has filed a complaint[.]” A plaintiff can establish “a causal connection between protected
conduct and a materially adverse action … by showing
that the protected activity was followed closely by discriminatory treatment.” Meyer v. Oregon Lottery, 

, 

 (2018) (internal quotations omitted).
Although there is no bright-line rule as to how close in time
an employee’s complaint must be to his subsequent termination to raise that inference, we have concluded that, without
more to establish causation, over a year is generally too long
of a gap. Brunick v. Clatsop County, 

, 

 (2008) (concluding that “without more” evidence, a
13-month gap between an employee’s statements and termination was insufficient to establish a causal connection);
cf. Meyer, 

 (concluding that a two-month
gap was sufficient to establish causation); see also Medina,

 (concluding that less than one month was
sufficient to establish causation).
         In this case, there is no evidence that plaintiff
raised any complaint within a year prior to his termination.
Plaintiff testified that it had been at least a year since he
made any verbal complaints and offered no further details
about the timing or specifics surrounding his previous verbal complaints. Thus, a reasonable trier of fact would have
466                                  Lopez v. Jackson County

been left without any evidence to infer a causal connection
between plaintiff’s complaints and his termination.
         Plaintiff’s argument that he was terminated for
his OR-OSHA complaint also suffers from a timing problem. Defendant sent plaintiff the letter of termination a day
before defendant received the notification from OR-OSHA
about the anonymous complaint. There is no evidence in the
summary judgment record that defendant had any knowledge of the complaint at the time it terminated plaintiff
and, therefore, a rational trier of fact could not have inferred
a causal connection between plaintiff’s complaint and subsequent termination. Accordingly, we affirm the trial court’s
summary judgment ruling for defendant on plaintiff’s retaliation claim.
        In his second assignment of error, plaintiff contends
that the trial court erred in granting defendant’s motion for
directed verdict on plaintiff’s discrimination claim. The gravamen of plaintiff’s claim is that, although defendant stated
that he was terminated for violating the facility’s use-offorce policy, that justification was pretext for unlawful
discrimination based on plaintiff’s national origin for two
reasons: First, plaintiff cites evidence that similarly situated employees were treated more favorably than plaintiff.
Second, plaintiff, who is Hispanic, argues that “a reasonable juror could decide that Plaintiff’s race was a motivating or deciding factor” that led to his termination, because
testimony established that his supervisors applied a “double
standard” between white and Hispanic workers.
         “On review of motions for directed verdict, we must
determine whether, viewing in the light most favorable to
the non-moving party, a reasonable factfinder could only
find in favor of the moving party.” Thompson v. Marshall,

, 

 (2021).
         In the trial court’s view, the evidence was insufficient to create a question for the jury as to whether plaintiff’s termination was connected to his national origin.
The trial court determined that evidence that one supervisor made racially inappropriate comments was not connected to plaintiff’s termination, because that supervisor’s
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 (2024)             467

employment ended well before plaintiff’s termination. The
trial court further concluded that testimony by plaintiff’s
Mexican-American coworker about her perception of an
unequal standard applicable to Hispanic employees was
insufficient, because the coworker’s perception was not supported by any evidence that could connect plaintiff’s termination to his national origin. Finally, the trial court rejected
plaintiff’s argument that the evidence showed that similarly
situated employees were treated differently than plaintiff,
because there was not “any evidence that national origin
was a motivating factor” in plaintiff’s termination.
           In order to prevail on a claim under ORS 659A.030
(1)(a), (b), a plaintiff must show that (1) they are a member of
protected class; (2) they were subject to an adverse employment action; and (3) they suffered that adverse employment
action “because of” their race, national origin, or other protected characteristics. In this case, the third element—
causation—is contested. Evidence of discriminatory motive
“is rarely direct and often, necessarily, circumstantial and
inferential.” Medina, 278 Or at 588 (internal quotations
omitted). As such, plaintiffs may “use indirect evidence to
raise the inference of intentional discrimination.” Miller v.
Racing Commission, 

, 

 (2019).
         The trial court did not err in granting defendant’s
motion for a directed verdict. There is no evidence connecting plaintiff’s termination to any racial animus. Plaintiff
did not offer any evidence that he was disparately treated
when compared with the treatment of two similarly situated non-Hispanic coworkers who he identified during the
trial. Although plaintiff may have been disciplined more
than those two workers, he was not terminated earlier than
those workers for violating the use-of-force policy. In fact, he
was terminated after his third use-of-force violation and the
non-Hispanic workers were terminated after their first and
second use of force violations, respectively.
         One employee testified that she perceived that
plaintiff’s supervisor applied an unequal standard to
Hispanic workers. However, that perception is not substantiated by any evidence in the record as to how that unequal
standard materialized or caused disparate treatment in
468                                 Lopez v. Jackson County

the workplace. See Miller, 

 (explaining that without more evidence, the supervisor’s “disparate
demeanor … fails to permit a reasonable inference of discriminatory investigation or discharge” because, in part,
the plaintiff did not proffer evidence how the supervisor’s
“ ‘chumminess’ with men” resulted in the supervisor’s dismissal recommendation of plaintiff). Plaintiff’s claim that
he was terminated because of his national origin requires
inferential leaps that do not logically flow from the evidence,
and we conclude for that reason that the trial court did not
err in granting defendant’s motion for directed verdict.
               Affirmed.