Dawson v. Entek International

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SHANE DAWSON, 
Plaintiff-Appellant, No. 09-35844

D.C. No.
v. 08-cv-06151-AA
ENTEK INTERNATIONAL, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Ann Aiken, District Judge, Presiding

Argued and Submitted
November 1, 2010—Portland, Oregon

Filed January 10, 2011

Before: William A. Fletcher and Raymond C. Fisher,
Circuit Judges, and David C. Bury, District Judge.*

Opinion by Judge Bury

*The Honorable David C. Bury, District Judge, United States District
Court for the District of Arizona, sitting by designation.

575
 DAWSON v. ENTEK INTERNATIONAL 579

COUNSEL

Kevin T. Lafky and Haley Percell, Lafkey and Lafkey, Salem,
Oregon, for the plaintiff-appellant.

Patricia K. Runkles-Pearson and Dennis Westlind, Stoel
Rives LLP, Portland, Oregon, for the defendant-appellee.
580 DAWSON v. ENTEK INTERNATIONAL
OPINION

BURY, District Judge:

OVERVIEW

Shane Dawson (Dawson), a male homosexual, appeals the
district court’s grant of summary judgment in favor of his for-
mer employer, Entek International (Entek), on claims of dis-
crimination arising from his termination. Entek is an Oregon-
based company that manufactures polyethylene battery sepa-
rators.

On appeal, Dawson argues that the district court erred when
it applied the McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), burden-shifting framework to analyze state claims
under Or. Rev. Stat. § 659A.030 for retaliatory discharge, sex
hostile work environment, and sexual orientation hostile work
environment. Dawson also claims that the district court erred
when it granted summary judgment in Entek’s favor on Daw-
son’s claims of retaliatory discharge and sex hostile work
environment under both Title VII and Or. Rev. Stat.
§ 659A.030, as well as sexual orientation hostile work envi-
ronment under Or. Rev. Stat. § 659A.030. Finally, Dawson
alleges that the district court erred when it granted summary
judgment against Dawson on his claim of intentional inflic-
tion of emotional distress.

Viewing the evidence in the light most favorable to the
nonmoving party, Dawson produced circumstantial evidence
of retaliatory discharge and sexual orientation hostile work
environment, such that resolution of this action by summary
judgment was error. We reverse and remand.

BACKGROUND

On April 13, 2007, Dawson was hired by Entek as a tempo-
rary production line worker. His job was to run a production
 DAWSON v. ENTEK INTERNATIONAL 581
line that rolled up battery separators. Dawson worked with 24
other employees, all male. Production line workers generally
worked three 12 hour shifts and then one 6 hour shift, rotating
days and graveyard shifts. Dawson had two acquaintances
who already worked at Entek, Josh Dobbs (Dobbs) and Travis
Etherington (Etherington), who were aware of Dawson’s sex-
ual orientation. Dobbs and Etherington frequented the same
bar as Dawson and his partner, Tracy Hubbard. Jeremy Sei-
bert (Seibert), Dobbs, and Etherington all worked the grave-
yard shift on the line with Dawson as co-workers, not as
supervisors or trainers.

One of Dawson’s supervisors was Ken Haase (Haase), and
his direct trainer was Troy Guzon (Guzon). Dawson did not
see Haase that often, as he was one of the many supervisors.
Guzon directly worked with Dawson “side-by-side” teaching
him how to “run the line at Entek.” Dawson considered
Guzon not only his trainer but his supervisor; Guzon was the
only supervisor that he dealt with on a daily basis, as Dawson
explained: “Well, my direct trainer, who was Troy [Guzon],
I was told to go to with any problems or questions that I had,
because he was another one of the supervisors as far as I
knew, so — and I never really dealt with any of the other —
the other supervisors at all.” Oakley Elliott (Elliott) hired
Dawson; he was a forklift trainer but he generally worked the
dayshift while Dawson worked the graveyard shift. Dawson
was also aware that Rob Shimmin (Shimmin) was a supervi-
sor and production manager, but they did not work the same
shift.

At work, certain individuals began making derogatory com-
ments about Dawson’s sexual orientation. Dawson specifi-
cally stated that Dobbs, Seibert and Guzon made derogatory
comments about his sexual orientation to Dawson directly and
to others that Dawson overheard. Dobbs made the statement
that Dawson was a “worthless queer.” Dawson testified, “I
was standing at my line, and [Dobbs] was standing at the line
beside me with Jeremy and a few of the other guys when
582 DAWSON v. ENTEK INTERNATIONAL
[Dobbs] said that. . . . [Guzon] . . . was present and one of the
other line operators . . . .” Dawson also overheard Dobbs tell
others that Dawson liked to “suck dick” and “take it up the
ass.” Seibert referred to Dawson as “Tinker Bell,” “a homo,
a fag, and a queer” ”on a daily basis for about a week, week
and a half,” and “acted in a physically intimidating manner.”
Dawson asked Seibert to stop using those words, but he
would only stop for a couple of days and then start back up
again. Dawson did not hear Seibert or Dobbs refer to any
other co-workers in this way.

Guzon was present when these words were directed at
Dawson, “[b]ecause [Guzon] was side by side with [Dawson]
as [his] trainer and he was right there more than a few times
when [Seibert] came over and said that. He was standing right
there.” Dawson went to Guzon and spoke with him about Sei-
bert and others referring to him as “a homo and a fag” and
“asked him if he could see if he could do something about it.”
Guzon said he would talk to Seibert about it. After their dis-
cussion, Guzon himself used the word “homo” 3-4 times
when referring to Dawson. Shimmin and Haase, manag-
ers/supervisors, testified to overhearing other employees
using the term “homo” over the years, but did not take it seri-
ously.

Dawson began experiencing stress and work deterioration
from the derogatory comments. On May 19, 2007, Dawson
took a day off from work in response to the stress from his
negative work environment. Dawson called the general num-
ber and asked the person who answered the phone to let his
supervisor know that he was taking the day off. Entek
recorded Dawson’s day off as a “no-show/no-call day.”
Entek’s procedure for an unscheduled absence required that
the employees call one hour prior to the start of their shift and
report their absence to a supervisor or designee. Dawson’s
call did not comply with this procedure.

The next day Dawson visited a person in human resources,
Susan Morch (Morch). Dawson explained he had a problem
 DAWSON v. ENTEK INTERNATIONAL 583
and needed to file some type of complaint due to the names
he was being called, “a homo and a fag and . . . a queer.” He
told Morch that Seibert, Dobbs and Guzon had all used those
words referring to him.

Two days later, on May 22, 2007, Dawson was terminated
from employment, ostensibly because of his failure to call
properly before missing work. As Dawson explained:

I was told that I was being terminated for missing a
shift, for a no-call/no-show. And I had explained that
I did call in, but they said that I didn’t call in. And
then I explained to them — we also discussed what
was talked about the day before, as to why I missed
my shift, and I was told by Oakley and by Margaret
[Campbell Rivers (Rivers) of Human Resources] that
we have two different situations here and that there-
fore you’re being terminated [from] your employ-
ment — for your attendance and then that we will
deal with the other situation.

Entek reports that it investigated Dawson’s complaints after
his termination.

STANDARD OF REVIEW

This court reviews a district court’s grant of summary judg-
ment de novo. See, e.g., Metoyer v. Chassman, 504 F.3d 919,
930 (9th Cir. 2007); Bagdadi v. Nazar, 84 F.3d 1194, 1197
(9th Cir. 1996). We must determine, viewing the evidence in
the light most favorable to the nonmoving party, whether
there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.
Id.
584 DAWSON v. ENTEK INTERNATIONAL
DISCUSSION

I. The district court did not err in concluding that the
McDonnell Douglas burden-shifting framework
applies when analyzing claims under Or. Rev. Stat.
§ 659A.030.

Dawson’s position is that the district court erred when it
applied the McDonnell Douglas burden-shifting analysis to
his supplemental state statutory claims and asks that the dis-
trict court order granting summary judgment on the state stat-
utory claims be reversed. Dawson bases his argument on
previous Ninth Circuit law declining to apply the burden-
shifting framework to Or. Rev. Stat. § 659A.030 on summary
judgment. See Messick v. Horizon Indus., Inc., 62 F.3d 1227,
1232 (9th Cir. 1995). Dawson argues under Messick that
because he established a prima facie case of discrimination
under the state statute, his case survives a summary judgment
motion. Dawson argues further that the district court erred
when it relied on Snead v. Metro. Prop. & Cas. Ins. Co., 237
F.3d 1080 (9th Cir. 2001) to support its use of the burden-
shifting framework, because that was a diversity jurisdiction
case. Snead held that, “when entertaining motions for sum-
mary judgment in employment discrimination cases arising
under state law, federal courts sitting in diversity must apply
the McDonnell Douglas burden-shifting scheme as a federal
procedural rule.” 237 F.3d at 1094.

Entek contends that the district court properly applied the
burden shifting framework to find no state claim of discrimi-
nation in the workplace because Snead applies to state-law
claims in federal court whatever the basis for subject matter
jurisdiction. Dawson maintains that Snead does not apply to
state law claims based on supplemental jurisdiction, as
opposed to diversity jurisdiction. To support this position,
Dawson relies on a number of unpublished decisions of Ore-
gon district courts.
 DAWSON v. ENTEK INTERNATIONAL 585
[1] The burden-shifting framework in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 801-04 (1973), is as follows:

[t]he employee must first establish a prima facie case
of discrimination. If he does, the employer must
articulate a legitimate, nondiscriminatory reason for
the challenged action. Finally, if the employer satis-
fies this burden, the employee must show that the
reason is pretextual either directly by persuading the
court that a discriminatory reason more likely moti-
vated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of cre-
dence.

Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008)
(internal quotation marks and citations omitted).

Or. Rev. Stat. § 659A.030 reads, in pertinent part:

(1) It is an unlawful employment practice:

(a) For an employer, because of an individual’s race,
color, religion, sex, sexual orientation, national ori-
gin, marital status or age if the individual is 18 years
of age or older, or because of the race, color, reli-
gion, sex, sexual orientation, national origin, marital
status or age of any other person with whom the
individual associates, or because of an individual’s
juvenile record that has been expunged pursuant to
ORS 419A.260 and 419A.262, to refuse to hire or
employ the individual or to bar or discharge the indi-
vidual from employment. However, discrimination is
not an unlawful employment practice if the discrimi-
nation results from a bona fide occupational qualifi-
cation reasonably necessary to the normal operation
of the employer’s business.

(b) For an employer, because of an individual’s race,
color, religion, sex, sexual orientation, national ori-
586 DAWSON v. ENTEK INTERNATIONAL
gin, marital status or age if the individual is 18 years
of age or older, or because of the race, color, reli-
gion, sex, sexual orientation, national origin, marital
status or age of any other person with whom the
individual associates, or because of an individual’s
juvenile record that has been expunged pursuant to
ORS 419A.260 and 419A.262, to discriminate
against the individual in compensation or in terms,
conditions or privileges of employment.

***

(f) For any person to discharge, expel or otherwise
discriminate against any other person because that
other person has opposed any unlawful practice, or
because that other person has filed a complaint, testi-
fied or assisted in any proceeding under this chapter
or has attempted to do so.

(g) For any person, whether an employer or an
employee, to aid, abet, incite, compel or coerce the
doing of any of the acts forbidden under this chapter
or to attempt to do so.

[2] The district court found that “[b]ecause the Oregon
Revised Statutes § 659A.030 was modeled after Title VII,
plaintiff’s state and federal gender discrimination claims can
be analyzed together.” Dawson v. Entek Int’l, 662 F. Supp. 2d
1277, 1284 (D. Or. 2009). The district court relied on Snead
when it employed the burden-shifting framework. Snead rep-
resents the law of this circuit and applies in all cases in federal
district court in which the choice between federal and state
procedural law is presented. The answer to the question
whether federal procedural law must be applied is the same
regardless of the source of the federal court’s subject matter
jurisdiction over a claim. See In re Exxon Valdez, 484 F.3d
1098, 1100 (9th Cir. 2007) (“’The Erie principles apply
equally in the context of pendent jurisdiction.’ . . . [T]he basis
 DAWSON v. ENTEK INTERNATIONAL 587
of a federal court’s jurisdiction over a state law claim is irrele-
vant for Erie purposes.” (quoting Mangold v. Cal. Pub. Utils.
Comm’n, 67 F.3d 1470, 1478 (9th Cir. 1995)). Accordingly,
Snead directly controls this case, and dictates that the burden-
shifting framework applies to all of Dawson’s federal and
state discrimination claims.

II. The district court erred in granting summary judg-
ment on Dawson’s claims for retaliation under Title
VII and Or. Rev. Stat. § 659A.030.

Dawson contends that the district court erred “when it con-
cluded that Plaintiff had not offered any evidence of pretext
to rebut Entek’s proffered legitimate reason for terminating
Plaintiff’s employment.” Dawson relies on Noyes v. Kelly
Servs., 488 F.3d 1163, 1170 (9th Cir. 2007), to argue that not
only did he raise evidence of pretext to rebut Entek’s prof-
fered legitimate reason for termination, but he has produced
sufficient circumstantial evidence to raise a material question
of fact on pretext. Dawson maintains that the timing of his
discharge in relation to his report to Morch in human
resources and complaint to his supervisor Guzon is sufficient
to raise “indirect evidence that undermines the credibility of
the employer’s articulated reasons.” Id. at 1171.

[3] Title VII prohibits an employer from discriminating
against an employee for opposing an unlawful employment
practice, such as filing a complaint alleging sexual orientation
harassment and hostile work environment. Retaliatory dis-
charge claims follow the same burden-shifting framework
described in McDonnell Douglas. To establish a prima facie
case, the employee must show that he engaged in a protected
activity, he was subsequently subjected to an adverse employ-
ment action, and that a causal link exists between the two. See
Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988). The
causal link can be inferred from circumstantial evidence such
as the employer’s knowledge of the protected activities and
the proximity in time between the protected activity and the
588 DAWSON v. ENTEK INTERNATIONAL
adverse action. Id. If a plaintiff establishes a prima facie case
of unlawful retaliation, the burden shifts to the defendant
employer to offer evidence that the challenged action was
taken for legitimate, non-discriminatory reasons. See Nidds v.
Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996).
If the employer provides a legitimate explanation for the chal-
lenged decision, the plaintiff must show that the defendant’s
explanation is merely a pretext for impermissible discrimina-
tion. See Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir.
2000).

The prima facie case under Or. Rev. Stat. § 659A.030 is
similar. A plaintiff must prove that: 1) the defendant inten-
tionally retaliated against the employee because he or she
filed a discrimination complaint; 2) the defendant did so with
the intent of forcing the employee to leave the employment;
and 3) the employee left the employment as a result of the
retaliation. See Seitz v. Albina Human Res. Ctr., 100 Or. App.
665, 674-75 (Or. App. 1990).

[4] In order to establish his unlawful retaliation claim,
Dawson must show the existence of facts from which a rea-
sonable trier of fact could conclude that sometime during his
short employment, he engaged in protected activity and that
his employer, Entek, retaliated against him in response to that
activity. There exists circumstantial evidence such that if
believed by a trier of fact, Dawson could prevail on this
claim. Futhermore, there is no legal precedent to support
Entek’s suggestion that a probationary or temporary employee
is subject to a different or lower standard for purposes of
proving discriminatory treatment than a permanent employee.

[5] Dawson engaged in protected activity when he visited
Morch in human resources to discuss his treatment and file a
complaint. This was a complaint to human resources staff
based directly on sexual orientation discrimination. Less than
48 hours later, he was terminated from employment. Dawson
had already addressed Guzon earlier in his employment about
 DAWSON v. ENTEK INTERNATIONAL 589
the sexual orientation discrimination he was experiencing.
Because Guzon was Dawson’s trainer and immediate man-
ager, there is evidence from which a fact-finder may conclude
that Guzon was Dawson’s supervisor. See McGinest v. GTE
Serv. Corp., 360 F.3d 1103, 1119 n.13 (9th Cir. 2004).
Unqualifiedly, Dawson’s discussion with Morch was a human
resources contact with reference to his treatment. Entek’s
explanation for the discharge was the failure to comply with
the no-show/no-call policy, but the timing of the two events,
particularly because Dawson explained that it was the stress
of his ongoing treatment at work that led to his absence, may
or may not have been coincidental.

[6] We have previously recognized that “proximity in time
between the protected action and the allegedly retaliatory
employment decision [i]s one [way] a jury logically could
infer [that the plaintiff] was terminated in retaliation.” See
Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,
751-52 (9th Cir. 2001) (internal quotation marks omitted). In
some cases, temporal proximity can by itself constitute suffi-
cient circumstantial evidence of retaliation for purposes of
both the prima facie case and the showing of pretext. See Bell
v. Clackamas County, 341 F.3d 858, 865-66 (9th Cir. 2003);
Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731-32 (9th Cir.
1986).

[7] Viewing the facts in the light most favorable to Daw-
son, the protected activity occurred at most two days before
the discharge and the treatment of Dawson was a topic during
both the protected activity and the discharge, as explained by
the supervisor and human resources person who fired him.
The gravity of Dawson’s complaints coupled with the time
frame are such that a reasonable trier of fact could find in
favor of Dawson on his retaliation claim. The district court
erred in resolving this claim by summary judgment.
590 DAWSON v. ENTEK INTERNATIONAL
III. The district court did not err in granting summary
judgment on Dawson’s claims for sex hostile work
environment under Title VII/Or. Rev. Stat.
§ 659A.303.

Dawson argues that the district court erred when it con-
cluded that his sex hostile work environment claims failed
because he could not establish that the comments made by his
co-workers were due to his gender. He argues that one way
of satisfying the requirement that he prove the harassment
was “because of [his] sex” is to inquire whether the harasser
would have acted the same if the gender of the victim had
been different. See Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 80-81 (1998).

Entek asserts under the theory of Price Waterhouse v. Hop-
kins, 490 U.S. 228 (1989), and Nichols v. Azteca Rest. Enter.,
Inc., 256 F.3d 864, 874-875 (9th Cir. 2001) that Dawson’s
sole basis for his hostile work environment gender discrimina-
tion claim is that he was harassed because he appeared effem-
inate. Entek argues that the district court properly dismissed
those claims because Dawson presented no evidence that he
failed to conform to a gender stereotype. Entek relies on Daw-
son’s own testimony that he does not exhibit effeminate traits,
and concludes he therefore failed to state a claim for sex hos-
tile work environment. Entek also asserts the defense of
prompt and appropriate action after Dawson was terminated
from employment.

[8] A plaintiff may establish a sex hostile work environ-
ment claim by showing that he was subjected to verbal or
physical harassment that was sexual in nature, that the harass-
ment was unwelcome and that the harassment was sufficiently
severe or pervasive to alter the conditions of the plaintiff’s
employment and create an abusive work environment. See
Gregory v. Widnall, 153 F.3d 1071, 1074 (9th Cir. 1998). A
plaintiff must establish that the conduct at issue was both
objectively and subjectively offensive: he must show that a
 DAWSON v. ENTEK INTERNATIONAL 591
reasonable person would find the work environment to be
“hostile or abusive,” and that he in fact did perceive it to be
so. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998).
Where an employee is allegedly harassed by co-workers, the
employer may be liable if it knows or should know of the
harassment but fails to take steps “reasonably calculated to
end the harassment.” Nichols, 256 F.3d at 875 (internal quota-
tion marks omitted).

The district court analyzed Dawson’s claim of hostile work
environment sex discrimination by application of Price
Waterhouse, 490 U.S. at 250. “There, the Supreme Court held
that if an employer acts on the basis of belief that a female
employee does not match a sex stereotype, the employee has
an actionable claim under Title VII for discrimination based
on sex.” Dawson, 662 F. Supp. 2d at 1286. The district court
went on to find that this holding applies to a man who does
not fit the male stereotype by acting too feminine. See id. (cit-
ing Nichols, 256 F.3d at 874).

[9] The district court correctly found that based even on
his own testimony Dawson was not being verbally harassed
for appearing non-masculine or for otherwise not fitting the
male stereotype. There do not appear to be sufficient facts to
support a finding that a reasonable trier of fact could conclude
that Dawson experienced a hostile work environment based
on his gender.

IV. The district court erred in granting summary judg-
ment on Dawson’s claim for sexual orientation hos-
tile work environment under Or. Rev. Stat.
§ 659A.030.

Entek did not challenge the plaintiff’s showing of a hostile
work environment based on sexual orientation, but argued
Entek was not liable for any harassment that took place. First,
Entek argued that Or. Rev. Stat. § 659A.030 did not prohibit
sexual orientation hostile work environment at the time of the
592 DAWSON v. ENTEK INTERNATIONAL
events at issue. Second, Entek argued it was not liable
because its management had no notice of the harassment. The
district court found that § 659A.030 did bar sexual orientation
hostile work environment claims at the time, but concluded
Entek was not liable because Guzon did not fall within the
definition of a supervisor under Lamb v. Household Credit
Services, 956 F. Supp. 1511 (N.D. Cal. 1997).

A. The district court did not err when it determined
that Or. Rev. Stat. § 659A.030 prohibits sexual ori-
entation discrimination.

Entek argues that Oregon’s applicable statute did not
encompass hostile work environment claims based on sexual
orientation until after Dawson’s discharge. Entek points out
that Dawson’s sexual orientation discrimination claim is
based solely on the Oregon statute, not Title VII, and that the
Oregon statute was not amended to add hostile work environ-
ment sexual orientation discrimination until January 1, 2008.
Entek takes issue with the district court’s reliance on Tanner
v. Oregon Health Sciences University, 157 Or. App. 502 (Or.
App. 1998), to find a viable claim for relief. Entek asks us to
hold that the district court erred when it determined that Or.
Rev. Stat. § 659A.030 prohibited sexual orientation discrimi-
nation before the amendments that took effect in January
2008.

[10] In 2007, Oregon amended its general anti-
discrimination in employment statute to include “sexual ori-
entation” among the prohibited grounds for discrimination.
2007 Or. Laws ch. 100 (effective January 1, 2008). At the
time these events took place, however, the statute only pro-
vided that it was unlawful for an employer to discriminate
“because of . . . sex . . . or because of the . . . sex . . . of any
other person with whom the individual associates.” Or. Rev.
Stat. § 659A.030 (2007). Tanner held that “the only plausible
construction of th[is] statutory language” is that it governs
sexual orientation discrimination. 157 Or. App. at 524; see
 DAWSON v. ENTEK INTERNATIONAL 593
also Heller v. Columbia Edgewater Country Club, 195 F.
Supp. 2d 1212, 1222 (D. Or. 2002) (“O.R.S. § 659A.030 pro-
hibits discrimination on the basis of an employee’s sexual ori-
entation.”); Am. Civil Liberties Union of Oregon, Inc. v.
Roberts, 305 Or. 522, 526-27 (1988) (“It is possible to con-
strue some Oregon statutes as prohibiting discrimination
based on sexual orientation.”). Accordingly, we hold the dis-
trict court did not err in concluding that sexual orientation
hostile work environment was actionable at the time of the
incidents at issue.

B. The district court erred when it found on summary
judgment that Entek was not liable for the sexual
orientation hostile work environment.

[11] To prevail on the hostile work environment claim
based on sexual orientation, Dawson is required to establish
a pattern of ongoing and persistent harassment severe enough
to alter the conditions of employment. Draper v. Coeur Roch-
ester, Inc., 147 F.3d 1104, 1108 (9th Cir. 1998); Fred Meyer,
Inc. v. Bureau of Labor & Indus., 152 Or. App. 302, 307 (Or.
App. 1998). Dawson needed to produce evidence such that a
reasonable trier of fact could conclude that his workplace was
both objectively and subjectively offensive, one that a reason-
able person would find hostile or abusive and one that the vic-
tim did in fact perceive to be so. Faragher, 524 U.S. at 787.
This harassment must be based on sexual orientation.

[12] When harassment by a supervisor is at issue, an
employer is vicariously liable, subject to a potential affirma-
tive defense. See Nichols, 256 F.3d at 877 (citing Faragher,
524 U.S. at 780). “If, however, the harasser is merely a
coworker, the plaintiff must prove that . . . the employer knew
or should have known of the harassment but did not take ade-
quate steps to address it.” Swinton v. Potomac Corp., 270
F.3d 794, 803 (9th Cir. 2001); see also Nichols, 256 F.3d at
875 (holding that when harassment by co-workers is at issue,
the employer’s conduct is reviewed for negligence).
594 DAWSON v. ENTEK INTERNATIONAL
Entek argues that Dawson presented no evidence that man-
agers had any knowledge of Dawson’s treatment. Evidence
exists in the record that the company officially was put on
notice of the hostile work environment when Dawson went to
Morch and asked about filing a complaint, before he was ter-
minated from employment. There is circumstantial evidence
that Entek was put on notice when Dawson talked to Guzon
about the treatment and Guzon not only ignored the complaint
but joined in the derogatory name calling. There is evidence
from which a fact-finder could conclude that Guzon was
Dawson’s supervisor.

1. Vicarious Liability for Acts by Supervisors

[13] Entek denies that Guzon was Dawson’s supervisor.
Ninth Circuit case law distinguishes between a situation in
which a harasser supervises the plaintiff, where vicarious lia-
bility is available, versus a situation in which a harasser is a
supervisor and yet does not supervise the plaintiff. See Swin-
ton, 270 F.3d at 804-05. An employer is vicariously liable for
actions by a supervisor who has “immediate (or successively
higher) authority over the employee.” Faragher, 524 U.S. at
807. This distinction “is not dependent upon job titles or for-
mal structures within the workplace, but rather upon whether
a supervisor has the authority to demand obedience from an
employee.” McGinest, 360 F.3d at 1119 n.13. If Guzon
engaged in supervision of or had authority over Dawson, he
could be deemed by a trier of fact as Dawson’s supervisor
even if the company did not define his role this way. See
Swinton, 270 F.3d at 803-05. The questions of who was con-
sidered a supervisor by Entek, and whether its job categories
suffice to satisfy the demarcations drawn under the case law
interpreting the Oregon statute, are properly resolved by the
district court or the trier of fact on a more extensive factual
record. See McGinest, 360 F.3d at 1119 n.13.

An employer may raise a two-pronged affirmative defense
to avoid vicarious liability for a hostile environment created
 DAWSON v. ENTEK INTERNATIONAL 595
by a supervisor. See Nichols, 256 F.3d at 877. The district
court should reconsider whether Entek has made out the affir-
mative defense after resolving the disputed facts in this case.
If, for example, Entek fired Dawson in retaliation for his pro-
tected complaint, it would be difficult to say that Entek had
adequately addressed the problem of harassment of homosex-
ual employees.

2. Liability for Actions by Coworkers

[14] “ ‘[E]mployers are liable for failing to remedy or pre-
vent a hostile or offensive work environment of which
management-level employees knew, or in the exercise of rea-
sonable care should have known.’ ” Ellison, 924 F.2d at 881
(quoting EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-16
(9th Cir. 1989)); see also Swinton, 270 F.3d at 803. Entek had
actual knowledge of the events at least by the time Dawson
informed Morch, in Human Resources, and even earlier if
Guzon is found to be a supervisor. Entek arguably also had
actual knowledge from Haase and Shimmin, who admitting to
hearing “homo” being used over the years and not taking it
seriously. The district court incorrectly relied on Hardage v.
CBS Broad., Inc., 427 F.3d 1177, 1187 (9th Cir. 2005), for the
proposition that Dawson needed to explicitly tell Shimmin
and Haase that he found the derogatory term “homo” offen-
sive.

Entek may nonetheless avoid liability for such harassment
if it undertook remedial measures “reasonably calculated to
end the harassment.” Ellison, 924 F.2d at 882 (internal quota-
tion marks omitted); see also Yamaguchi v. U.S. Dep’t of the
Air Force, 109 F.3d 1475, 1482 (9th Cir. 1997). “The reason-
ableness of the remedy depends on its ability to: (1) ‘stop
harassment by the person who engaged in harassment;’ and
(2) ‘persuade potential harassers to refrain from unlawful con-
duct.’ ” Nichols, 256 F.3d at 875 (quoting Ellison, 924 F.2d
at 882). To be adequate, an employer must intervene
promptly. See Intlekofer v. Turnage, 973 F.2d 773, 778 (9th
596 DAWSON v. ENTEK INTERNATIONAL
Cir. 1992). Remedial measures may include some form of
disciplinary action, see Yamaguchi, 109 F.3d at 1482, “pro-
portionate[ ] to the seriousness of the offense,” Ellison, 924
F.2d at 882. “Title VII requires more than a mere request to
refrain from discriminatory conduct.” Id. (citation omitted).

Entek took action by firing Dawson and then offering some
counseling and training sessions. Entek alleges that these
remedial measures stopped the harassment, and were suffi-
cient to protect it from liability. Entek did not discipline any
employees or supervisors because, it contends, it decided that
Dawson’s reports were not credible. Inaction constitutes a rat-
ification of past harassment, even if such harassment indepen-
dently ceases. See Nichols, 256 F.3d at 875-76 (“When the
employer undertakes no remedy, or where the remedy does
not end the current harassment and deter future harassment,
liability attaches for both the past harassment and any future
harassment.”); Fuller v. City of Oakland, 47 F.3d 1522, 1529
(9th Cir. 1995) (noting that Title VII condemns “the existence
of past harassment, every bit as much as the risk of future
harassment”). As stated above, the district court should recon-
sider whether the defense has been made out after resolving
the disputed factual issues surrounding Dawson’s firing.

[15] In sum, the district court erred by granting summary
judgment for Entek on the claim of hostile work environment
based on sexual orientation under the Oregon state statute.

V. The district court not did err in granting summary
judgment on Dawson’s claim for intentional infliction
of emotional distress.

Dawson argues that the district court erred when it ruled
that a trier of fact could not conclude that the name calling
and derogatory references to homosexuality transcended the
boundaries of socially acceptable behavior by Entek. Dawson
argues that whether actions involved constituted socially
intolerable conduct amounting to intentional infliction of
 DAWSON v. ENTEK INTERNATIONAL 597
emotional distress (IIED) is a fact question to be resolved on
a case-by-case basis by the trier of fact considering the totality
of the circumstances.

To prove a claim of intentional infliction of emotional dis-
tress under Oregon law, a plaintiff must establish: (1) the
defendant intended to inflict severe emotional distress, (2) the
acts were the cause of plaintiff’s severe emotional distress,
and (3) the acts were sufficiently grievous to constitute a
transgression of the bounds of socially tolerable conduct. See
Delaney v. Clifton, 180 Or. App. 119, 129-30 (Or. App.
2002). “The intent element of the claim does not require a
malicious motive or a purposeful design to inflict emotional
distress on the plaintiff; it is satisfied if a defendant either
desires to inflict severe emotional distress, or knows that such
distress is certain, or substantially certain, to result from his
conduct.” Id. at 132 (internal quotation marks omitted).
“Whether the conduct alleged is sufficiently extreme or outra-
geous to be actionable is a fact-specific inquiry, one to be
made on a case-by-case basis considering the totality of the
circumstances.” Id. at 130. “Whether conduct constitutes an
extraordinary transgression of the bounds of socially tolerable
conduct is a question of law.” Harris v. Pameco Corp., 170
Or. App. 164, 171 (Or. App. 2000).

[16] In the corporate context, a company’s indifference to
coworker harassment does not make out an IIED claim
against the company. See Wheeler v. Marathon Printing, Inc.,
157 Or. App. 290, 307-08 (Or. App. 1998) (citing Lewis v.
Oregon Beauty Supply Co., 302 Or. 616, 627-28 (Or. 1987)).
Thus, the district court correctly found that Dawson failed to
legally state a claim for intentional infliction of emotional dis-
tress by Entek.

CONCLUSION

Dawson provided sufficient circumstantial evidence to
create a genuine issue of material fact on his claim of retalia-
598 DAWSON v. ENTEK INTERNATIONAL
tion. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221
(9th Cir. 1998) (discussing under what circumstances circum-
stantial evidence may show pretext). The record presents a tri-
able issue whether Entek’s proffered rationale for firing
Dawson is “unworthy of credence.” See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). The record
also provides sufficient evidence to create a genuine issue of
material fact concerning a hostile work environment based on
sexual orientation.

Because Dawson has presented circumstantial evidence that
a genuine issue of material fact exists regarding his claims of
retaliation and sexual orientation hostile work environment,
the decision of the district court is reversed on these claims
and this matter is remanded to the district court for further
proceedings.

REVERSED AND REMANDED.