Hubbard
Hubbard v. Bimbo Bakeries USA Inc.
Opinion
Lead Opinion
MEMORANDUM **
Don Hubbard appeals the district court’s order granting summary judgment in favor of defendants Bimbo Bakeries USA, Inc., d/b/a Orowheat Bakeries (“Bimbo”) on all of Hubbard’s claims. Hubbard brought this action against Bimbo for: (1) sex discrimination and retaliation for opposition to sex discrimination, in violation of Title VII, 42 U.S.C. § 2000e, et seq.; (2) sex discrimination and retaliation for opposition to sex discrimination, in violation of Or. Rev. Stat § 659A.030, et. seq.; and (3) common law wrongful discharge. Hubbard asserts two male coworkers made offensive sexual comments and advances to him over a period of a few months. He further asserts that, when he complained of the offensive conduct to his superiors, Bimbo retaliated against him by deciding to transfer him another distribution facility five miles away and by subjecting him to such an intolerable work environment such that he had no choice but to resign (i.e., he was “constructively discharged”).
*609 We have jurisdiction under 28 U.S.C. § 1291 . We review de novo a district court’s determination a plaintiff exhausted his administrative remedies. B.K.B. v. Maui Police Dept., 276 F.3d 1091,…
Dissenting Opinion
Berzon, J.
dissenting:
I agree with the majority for the most part, but would remand for trial on the hostile work environment cause of action. On this summary judgment record, a reasonable trier of fact could find the offensive conduct to which Hubbard was exposed both sex-based and sufficiently severe and pervasive to amount to actionable sexual harassment under 42 U.S.C. § 2000e-2(a)(l) and O.R.S. § 659A.030. I would not rely for this conclusion on Felty’s remark regarding wanting a “relationship” with ‘ Hubbard, which a reasonable person in Hubbard’s position would not construe as sexually suggestive. But there was other conduct — remarks, suggestively close invasion of Hubbard’s “space,” and “smooching sounds” — that occurred over about a year, culminating in the incident in which Felty drove a truck dangerously close to Hubbard and then made remarks that a reasonable person could construe as a crude sexual proposition.
It may well be that this conduct, if it occurred at all, was both meant and understood as expressing purely personal animosity through crude behavior and language, rather than sex-based propositions or hostility. But that would be a question for trial.