[00:00:04] Speaker 01:
Good morning.

[00:00:05] Speaker 01:
May it please the Court and Council, Kevin Lafkey on behalf of Plaintiff Appellant Wei Xu.

[00:00:09] Speaker 01:
I'd like to reserve a minute for rebuttal, please, splitting my time with the EEOC.

[00:00:14] Speaker 01:
Again,

[00:00:16] Speaker 01:
I'd probably pick up on some of the comments in the last argument to point out that the trial court's opinion in this summary judgment motion reads more like a trial verdict where the trial judge was hearing the facts and determining the facts than it does

[00:00:34] Speaker 01:
a motion for summary judgment opinion.

[00:00:37] Speaker 01:
And those aren't stray comments on almost every page of the trial court's opinion and order on summary judgment.

[00:00:47] Speaker 01:
The court doesn't take the facts in the light most favorable to the plaintiff.

[00:00:54] Speaker 01:
In fact, makes opposite inferences repeatedly.

[00:00:58] Speaker 03:
I'm going to jump in, because you have very little time, if you don't mind terribly.

[00:01:02] Speaker 03:
On the Title VII discrimination claim, what's the strongest showing that there was an adverse employment action?

[00:01:09] Speaker 01:
Yeah, so I start with the change in job.

[00:01:12] Speaker 03:
So there wasn't a cut in pay?

[00:01:16] Speaker 03:
That's a question.

[00:01:16] Speaker 03:
I want to be sure I'm right.

[00:01:18] Speaker 01:
There wasn't a cut in payer benefits, but there was a change in not just job title, but exemption status, and there was a change.

[00:01:26] Speaker 03:
So just if you can slow down, because this is important on my scorecard at least.

[00:01:30] Speaker 03:
So she became hourly.

[00:01:31] Speaker 03:
That's my...

[00:01:33] Speaker 03:
So she had to punch a clock, and she had to, I think, did she have to get permission for her breaks, which she needed for her eye drops, or did she, tell me exactly how this is an adverse employment action, please.

[00:01:44] Speaker 01:
Yeah, as I'm sure you've seen, the way the breaks were treated changed substantially, along with the change in job duties to being non-exempt, and so she was treated differently in regard to her usage of breaks.

[00:01:58] Speaker 01:
And one example, Judge, to answer your question and also to pick up on my argument about the inferences is, for example, the trial court says that plaintiffs' job duties didn't change.

[00:02:13] Speaker 03:
And the record at ER 151... I appreciate that they changed, but my question is really specific and you just don't have much time, forgive me, but I need an adverse employment action.

[00:02:24] Speaker 03:
I appreciate there was a change in status,

[00:02:26] Speaker 03:
And she went from exempt to non-exempt.

[00:02:27] Speaker 03:
I get that.

[00:02:28] Speaker 03:
Or non-exempt to exempt.

[00:02:29] Speaker 03:
But I said that backwards.

[00:02:34] Speaker 03:
So she had, I think, less freedom to be taking her eye drops.

[00:02:39] Speaker 03:
Or I'm trying to figure out how this affected her in an adverse way.

[00:02:42] Speaker 03:
I don't think there was a cut in pay.

[00:02:43] Speaker 03:
I just don't.

[00:02:45] Speaker 01:
Well, this court has said.

[00:02:46] Speaker 03:
She lost her cubicle.

[00:02:48] Speaker 01:
Yeah.

[00:02:50] Speaker 03:
What else have you got?

[00:02:51] Speaker 01:
And so again, her job duties were completely changed.

[00:02:55] Speaker 01:
That's an adverse employment action by itself.

[00:02:57] Speaker 03:
In one place she said they're more difficult.

[00:02:59] Speaker 03:
Can you explain to me how one was a supervisory position?

[00:03:04] Speaker 01:
Yeah, so if you look at ER 151, that's an interview with one of the managers, and she was specifically asked, how similar was supply chain management and manufacturing tech positions?

[00:03:19] Speaker 01:
Answer, not similar at all.

[00:03:21] Speaker 03:
Yes, but one has to be adverse.

[00:03:23] Speaker 03:
I appreciate that they're not, I've seen a couple places where it says they're not similar, but.

[00:03:29] Speaker 01:
And so you have,

[00:03:31] Speaker 01:
change in title, you have a change in classification, meaning exempt to non-exempt, you have the adverse treatment related to the breaks, because now she's told, I believe it's ER, let me see, 81, or she's told, you know, now you gotta combine your breaks, you know, you just, you go to the bathroom on your break and not otherwise.

[00:03:59] Speaker 01:
I think when you add all this up under the case law of this circuit, that's an adverse employment action because it would, again, impact somebody dramatically.

[00:04:10] Speaker 01:
And so I would think just the fact of change from exempt to non-exempt alone would be

[00:04:18] Speaker 01:
an adverse employment action under the relevant case law.

[00:04:21] Speaker 03:
Because she has to punch a clock?

[00:04:22] Speaker 03:
Because her brakes are more controlled?

[00:04:27] Speaker 01:
Yes.

[00:04:27] Speaker 01:
Yes.

[00:04:28] Speaker 01:
Yes.

[00:04:29] Speaker 01:
Yes.

[00:04:31] Speaker 03:
There's testimony about her reporting that she was the only one who had to use remnets to pack.

[00:04:38] Speaker 03:
How is that an adverse?

[00:04:40] Speaker 03:
Or is that part of the adverse employment action claim?

[00:04:42] Speaker 01:
It's part of the adverse employment action in the sense that they

[00:04:47] Speaker 01:
employer, again, read the record, unlike the trial judge inferences in the light most favorable to the plaintiff, they're saying, essentially, well, can we do this?

[00:04:59] Speaker 01:
Can we reduce her job duties?

[00:05:02] Speaker 01:
Can we change her job duties?

[00:05:03] Speaker 01:
Can we reduce her hours?

[00:05:05] Speaker 01:
Maybe we need to let her go.

[00:05:06] Speaker 01:
The trial judge says, well, there's no evidence of illegal intent.

[00:05:12] Speaker 01:
And they're saying, maybe we need to let her go.

[00:05:14] Speaker 01:
Maybe we reduce her hours.

[00:05:16] Speaker 01:
You know, there is illegal intent.

[00:05:20] Speaker 01:
You know, again, I have limited time here.

[00:05:22] Speaker 01:
Unlike the other parties, I'd urge this court to reverse, find that the plaintiff's claims meet the current legal standard, and not reverse for review in light of Muldrow, but simply reverse so that plaintiff can try her case and get the opportunity to have a jury hear the facts.

[00:05:44] Speaker 01:
Thank you.

[00:05:45] Speaker 03:
Thank you.

[00:05:46] Speaker 03:
If you decide, I'm not sure how you're splitting your time.

[00:05:48] Speaker 03:
Are we going to hear from the EEOC next?

[00:05:50] Speaker 03:
Yes.

[00:05:51] Speaker 03:
OK, that's fine.

[00:05:59] Speaker 05:
Thank you and good morning, Your Honors.

[00:06:01] Speaker 05:
Chelsea Sharon for the EEOC as amicus.

[00:06:04] Speaker 05:
We're here today to ask this court to clarify the correct adverse action standards for discrimination and retaliation claims under Title VII.

[00:06:12] Speaker 05:
And first is the discrimination claim here.

[00:06:14] Speaker 05:
We ask this court to hold that the district court relied on an adverse action standard that has since been abrogated by the Supreme Court's recent decision in Muldrow versus City of St.

[00:06:24] Speaker 05:
Louis.

[00:06:25] Speaker 05:
The district court here at ER17 required a showing of tangible and material harm.

[00:06:30] Speaker 05:
Muldrow expressly states that neither are required.

[00:06:35] Speaker 00:
Excuse me, counsel, I'm sorry.

[00:06:36] Speaker 00:
Even if that is true, and it may well be, because the district court didn't have the benefit of that case, nonetheless, the district court did give alternative findings.

[00:06:48] Speaker 05:
That's correct, Your Honor.

[00:06:49] Speaker 05:
And we have not taken a position on those alternative grounds here.

[00:06:52] Speaker 05:
If this court decides it wants to rule on those affirmative grounds, we'd simply ask that you clarify the change nature of the legal standard with respect to Muldrow and the erroneous standard with respect to the retaliation adverse action standard.

[00:07:08] Speaker 05:
But we do not take a position on the alternative grounds here.

[00:07:12] Speaker 03:
So I think there's two questions I had.

[00:07:14] Speaker 03:
I wasn't sure if you're trying to call out two different errors.

[00:07:19] Speaker 03:
I think the one is that you're calling out that Title VII discrimination and Title VII retaliation are separate.

[00:07:25] Speaker 03:
And they were conflated.

[00:07:26] Speaker 03:
The other, when you started to say you're asking us to clarify something, I think Justice Kagan has already done for us.

[00:07:31] Speaker 03:
I'm not sure if you need anything.

[00:07:33] Speaker 03:
But I appreciate your point.

[00:07:35] Speaker 03:
But there's a separate issue, I think.

[00:07:38] Speaker 03:
And that is there's two state statutory retaliation claims.

[00:07:46] Speaker 03:
And one of them is, I think, read identically with Title VII.

[00:07:50] Speaker 03:
But the other one, it's the 199 Oregon Statute 659A199, is yet another standard.

[00:07:59] Speaker 03:
Were you here to speak about that, or is that?

[00:08:02] Speaker 05:
Not on your agenda.

[00:08:03] Speaker 05:
Not on our agenda, only the one that's read analogously with Title VII.

[00:08:07] Speaker 05:
I apologize for any confusion.

[00:08:08] Speaker 03:
Okay, so given that the, let's just say that we are sold on your argument that there's a new standard, what is your best shot that this ought to be remanded, or needs to be remanded?

[00:08:20] Speaker 05:
Well, Your Honor, I want to clarify, we have not taken a position on whether the specific employment actions here meet the new Muldrow standard.

[00:08:27] Speaker 05:
So we're here simply to ask that it be remanded so that the district court can apply that standard in the first instance, because it very clearly relied on a tangible and material harm standard that is no longer the relevant standard.

[00:08:41] Speaker 05:
If this court chooses to apply the new standard in the first instance, that is, of course, if you feel you have a sufficient record to do so without remanding,

[00:08:50] Speaker 05:
We have no position on that, but we just want to make sure that the correct legal standard is applied in considering the relevant actions here.

[00:08:58] Speaker 04:
But we can also make a determination that the district court applied the wrong standard, but then reach also the harmlessness question, correct?

[00:09:05] Speaker 04:
That's correct.

[00:09:06] Speaker 04:
You're not taking a position on whether the proffered non-discriminatory reason was adequately rebutted on this record.

[00:09:15] Speaker 05:
That's correct.

[00:09:15] Speaker 05:
We haven't taken a position on that alternative basis for ruling, Your Honors.

[00:09:20] Speaker 03:
Any other questions?

[00:09:21] Speaker 03:
No.

[00:09:22] Speaker 03:
Thank you.

[00:09:22] Speaker 03:
Thank you, Your Honors.

[00:09:23] Speaker 03:
Thank you.

[00:09:24] Speaker 03:
We'll hear from opposing counsel, please.

[00:09:36] Speaker 02:
Good morning, Your Honors.

[00:09:37] Speaker 02:
May it please the court?

[00:09:38] Speaker 02:
My name is Christine Sargent, and I'm here on behalf of Defendant Appellees Lightsmith and Finisar, and I'll collectively refer to them as Finisar.

[00:09:47] Speaker 02:
I'd like to briefly start out with Muldrow since that's where the court is understandably asking questions.

[00:09:54] Speaker 02:
Muldrow plays a tiny role in this case.

[00:09:58] Speaker 02:
Only one of the six categories of issues on appeal are even implicated by Muldrow at all.

[00:10:04] Speaker 02:
And remanding the district court's decision in full as requested by appellant would disregard the multiple separate independent reasons that the court granted summary judgment.

[00:10:16] Speaker 02:
To be clear, and your honors noted this already, Moldrow expressly reserved the standard for adverse actions in retaliation cases.

[00:10:27] Speaker 02:
And I think that's really important here because appellant has focused a lot of her arguments, the majority of her arguments on temporal proximity, and that is only relevant in the retaliation context.

[00:10:43] Speaker 02:
I'd like to speak to a few of the other claims on appeal that aren't

[00:10:50] Speaker 02:
the Title VII discrimination claims.

[00:10:52] Speaker 02:
Wrongful discharge.

[00:10:54] Speaker 02:
Appellant could not have been both constructively discharged and wrongfully terminated.

[00:11:01] Speaker 02:
Finisar ended appellant's employment because she, by her own admission, did not return from her 30-day personal leave of absence after being notified that if she did not return, that pursuant to Finisar's policy, she would be considered to have

[00:11:18] Speaker 02:
voluntarily resigned.

[00:11:20] Speaker 02:
All of those facts are undisputed.

[00:11:23] Speaker 02:
She makes no effort to prove pretext aside from utilizing a straw man argument and pointing to her good performance.

[00:11:33] Speaker 02:
To be clear, appellees have never, on this record or otherwise, contended that her termination had anything to do with performance.

[00:11:44] Speaker 02:
So her rebuttal of a non-discriminatory reason

[00:11:48] Speaker 02:
that Finisar never even proffered proves nothing.

[00:11:52] Speaker 02:
A constructive discharge claim requires an employee to show that the working conditions were objectively intolerable at the time of the resignation.

[00:12:03] Speaker 02:
And as the district court noted, nothing in this case even approaches that standard.

[00:12:08] Speaker 02:
But even so, the record reflects that she was actually disappointed that she couldn't return to her position, which hardly supports a constructive discharge claim.

[00:12:18] Speaker 03:
Or a hostile work environment claim.

[00:12:20] Speaker 02:
That's exactly right.

[00:12:22] Speaker 02:
Or a hostile work environment claim.

[00:12:23] Speaker 02:
And if she can't even prove a hostile work environment claim, and she can't demonstrate that she was subjected to conduct because of her protected class, that the conduct was not welcome,

[00:12:36] Speaker 02:
and that the conduct was sufficiently severe and pervasive as to change the terms and conditions of her employment, then she certainly doesn't have a constructive discharge claim.

[00:12:46] Speaker 02:
And as the district court correctly ruled, she also was unable to satisfy the hostile work environment standard either.

[00:12:53] Speaker 03:
So, counsel, if you could engage on, I'm not pushing, I don't hear any pushback on some of these other claims, but there is, you know, it's often the case that a court has applied to an incorrect standard, and as Judge Etrus said, our court didn't have the standard, was applying Ninth Circuit, I think, authority that has been abrogated, that we would often remand.

[00:13:15] Speaker 03:
And then there's this other problem, so that's on the Title VII discrimination claim, but then there's this other question,

[00:13:22] Speaker 03:
It seems to be about applying the same standard for the Title VII discrimination and Title VII retaliation claims.

[00:13:29] Speaker 03:
And then yet another issue about the two state retaliation claims.

[00:13:37] Speaker 03:
Those are all different.

[00:13:39] Speaker 03:
So what is your best shot at convincing us that we shouldn't at least remand for the district court to take a first run at these?

[00:13:48] Speaker 02:
Because so first of all this court there is Ninth Circuit Authority and every other circuit I believe that this court can affirm a district courts.

[00:14:00] Speaker 02:
We know the law.

[00:14:01] Speaker 02:
I just want to know what's your even if I apply it to this case.

[00:14:04] Speaker 02:
Okay, and

[00:14:06] Speaker 02:
None, she points to three alleged adverse actions.

[00:14:10] Speaker 02:
She points to the alleged demotion, which we disagree is a demotion at all.

[00:14:16] Speaker 02:
Second, she points to the May 2018 performance review.

[00:14:19] Speaker 02:
And third, she points to the offer of severance.

[00:14:23] Speaker 02:
None of those rises to the level of an adverse action under the standard articulated before Muldrow.

[00:14:30] Speaker 02:
and under the standard under Muldrow.

[00:14:33] Speaker 02:
She has to demonstrate.

[00:14:34] Speaker 02:
Hold on.

[00:14:34] Speaker 03:
Hold on.

[00:14:34] Speaker 03:
Before you go farther, if I can, I think we understand the standard pretty clearly.

[00:14:38] Speaker 03:
The Supreme Court's told us what the standard is.

[00:14:39] Speaker 03:
But just on the facts, her briefing and now counsel at argument is saying there's other adverse actions as well.

[00:14:47] Speaker 03:
that the demotion requires that then she's hourly, she's got this situation with the breaks and the eye drops, the need to use eye drops.

[00:14:56] Speaker 03:
What about those points which aren't on your list?

[00:14:59] Speaker 02:
So those fall under the restructuring slash alleged demotion.

[00:15:04] Speaker 02:
She says that there's three aspects to that demotion, alleged demotion, that make it an adverse action.

[00:15:12] Speaker 02:
Loss of prestige of title, the change from exempt to non-exempt, and

[00:15:17] Speaker 02:
the restructure, the change in job duties.

[00:15:23] Speaker 03:
She alleges at least one place that the job was more difficult and then this restructuring bit and the exempt part I think filters out about being adverse as applied to her because of the eye drops.

[00:15:34] Speaker 03:
That's what I see in this record.

[00:15:36] Speaker 02:
So the appellant admitted that she was never denied any requests for accommodation as it relates to the eye drops.

[00:15:49] Speaker 02:
So she was never denied.

[00:15:50] Speaker 02:
There's nothing in the record to suggest that she was ever denied breaks to put in her eye ointment.

[00:15:58] Speaker 02:
I think it's also notable on the exempt to non-exempt reclassification, they've cited to no case law suggesting that that

[00:16:06] Speaker 02:
indicates that there's been an adverse action.

[00:16:08] Speaker 02:
They actually cite to one case where the court affirmed summary judgment in favor of the employer

[00:16:13] Speaker 02:
And in that case, the employee was being reclassified from non-exempt to exempt.

[00:16:21] Speaker 02:
And the court actually discussed that being non-exempt is arguably a better position for the plaintiff to be in because they are entitled to overtime.

[00:16:31] Speaker 02:
So there's simply no case law in contrast to what appellees have cited in their briefing to suggest that reclassification

[00:16:43] Speaker 02:
in any way supports that there's been an adverse action.

[00:16:46] Speaker 03:
It makes an argument here about the reclassification that I haven't seen in other cases about the loss of prestige, the loss of the, depending on your perspective, responsibility for or ability to supervise, and then the cubicle, loss of cubicle.

[00:17:00] Speaker 03:
Is there case law that supports those kinds of features of a job?

[00:17:08] Speaker 02:
Frankly, that's not what the record supports is what happened.

[00:17:11] Speaker 03:
But I'm asking a different question, which is, is there case law that supports that type of change, being an adverse employment action?

[00:17:19] Speaker 02:
So the standard is that there has to be a material change in the working conditions.

[00:17:26] Speaker 02:
So I don't believe that there would be case law that says that those

[00:17:34] Speaker 02:
few examples that you've just articulated would support there's been an adverse action.

[00:17:41] Speaker 02:
Because then you get to the separate issue of why was that done in the first place?

[00:17:46] Speaker 02:
Was there a causal connection?

[00:17:47] Speaker 02:
Was it done because the employee was in a protected class or had engaged in protected activity?

[00:17:59] Speaker 02:
Hopefully that answers your question.

[00:18:02] Speaker 02:
I'd like to briefly touch on the disability claim.

[00:18:10] Speaker 02:
Summary judgment was proper on that claim as well.

[00:18:13] Speaker 02:
She testified and pled in her initial complaint that her only disability related to her eye condition.

[00:18:20] Speaker 02:
During her deposition, she admitted that the condition did not impact her daily life, thus rendering it not even a qualifying disability.

[00:18:28] Speaker 02:
But even if we concede that it was a disability,

[00:18:32] Speaker 02:
There's no dispute that Finisar granted every accommodation that she requested.

[00:18:37] Speaker 02:
She very clearly admitted that in her deposition.

[00:18:42] Speaker 02:
And to be clear, because Your Honor brought up breaks for eye ointment, this case is not about a failure to accommodate her high blood pressure, anxiety, hypertension, or shingles.

[00:18:55] Speaker 02:
And the reason I bring that up is because they've pointed to this November 2018 doctor's note

[00:19:00] Speaker 02:
That's a new position taken on appeal and I just want to make it clear for Your Honors that that contradicts her sworn testimony and the only disability alleged in this case is the eye condition.

[00:19:20] Speaker 02:
Unless Your Honors have any further questions, we'll rest on the briefs.

[00:19:24] Speaker 02:
It does not appear that we do.

[00:19:25] Speaker 02:
Thank you.

[00:19:34] Speaker 01:
Thank you.

[00:19:35] Speaker 01:
Muldrow expressly holds that a loss of prestige could qualify as actionable harm to a less prestigious job.

[00:19:44] Speaker 01:
And as plaintiff said in her declaration, paragraph 13, it's at ER 259, the restructured role that was offered to me was significantly more physically demanding and a far less prestigious job.

[00:20:00] Speaker 01:
And so again, the trial court

[00:20:02] Speaker 01:
didn't credit those inferences in the light most favorable to plaintiff as it should have.

[00:20:11] Speaker 01:
And as I mentioned at the beginning, the record is replete with that.

[00:20:14] Speaker 01:
I would close with just these two thoughts.

[00:20:18] Speaker 01:
At ER 128 to 135, you see the complaint of a coworker, Dolores Chavarria, who, again, you won't see that name anywhere in the trial court's letter opinion.

[00:20:32] Speaker 01:
when the trial court repeatedly says plaintiff doesn't corroborate, plaintiff doesn't provide evidence, plaintiff doesn't back it up, it's just not accurate.

[00:20:40] Speaker 01:
Finally, I'd urge you to review ER 185.

[00:20:44] Speaker 01:
Essentially, the top three managers of defendant are essentially collaborating, conspiring, if you will, to force Ms.

[00:20:56] Speaker 01:
Hsu out.

[00:20:57] Speaker 01:
And again, there's abundant evidence of their ill intent towards plaintiff.

[00:21:03] Speaker 01:
Maybe we should let Hue go, is what they said.

[00:21:07] Speaker 01:
They had an illegal intent and it resulted in illegal harm.

[00:21:12] Speaker 01:
Thank you.

[00:21:13] Speaker 03:
Thank you all for your advocacy.

[00:21:15] Speaker 03:
We'll take that case under advisement.