FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHANE DAWSON, 

No. 09-35844 Plaintiff-Appellant,

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
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.

DAWSON v. ENTEK INTERNATIONAL 579
OPINION

BURY, District Judge:

OVERVIEW

Shane Dawson (Dawson), a male homosexual, appeals the

district court’s grant of summary judgment in favor of his former employer, Entek International (Entek), on claims of discrimination arising from his termination. Entek is an Oregonbased company that manufactures polyethylene battery separators.

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 Dawson’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 environment 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 infliction 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 temporary production line worker. His job was to run a production

580 DAWSON v. ENTEK INTERNATIONAL
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 sexual orientation. Dobbs and Etherington frequented the same

bar as Dawson and his partner, Tracy Hubbard. Jeremy Seibert (Seibert), Dobbs, and Etherington all worked the graveyard 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 supervisor and production manager, but they did not work the same

shift. 

At work, certain individuals began making derogatory comments about Dawson’s sexual orientation. Dawson specifically 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

DAWSON v. ENTEK INTERNATIONAL 581
[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 Seibert 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 discussion, Guzon himself used the word “homo” 3-4 times

when referring to Dawson. Shimmin and Haase, managers/supervisors, testified to overhearing other employees

using the term “homo” over the years, but did not take it seriously. 

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 number 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

582 DAWSON v. ENTEK INTERNATIONAL
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 therefore you’re being terminated [from] your employment — 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 judgment 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.

DAWSON v. ENTEK INTERNATIONAL 583
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 district court order granting summary judgment on the state statutory claims be reversed. Dawson bases his argument on

previous Ninth Circuit law declining to apply the burdenshifting 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 burdenshifting framework, because that was a diversity jurisdiction

case. Snead held that, “when entertaining motions for summary 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 discrimination 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 Oregon district courts.

584 DAWSON v. ENTEK INTERNATIONAL
[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 satisfies this burden, the employee must show that the

reason is pretextual either directly by persuading the

court that a discriminatory reason more likely motivated the employer or indirectly by showing that the

employer’s proffered explanation is unworthy of credence. 

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 origin, marital status or age if the individual is 18 years

of age or older, or because of the race, color, religion, 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 individual from employment. However, discrimination is

not an unlawful employment practice if the discrimination results from a bona fide occupational qualification 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 oriDAWSON v. ENTEK INTERNATIONAL 585
gin, marital status or age if the individual is 18 years

of age or older, or because of the race, color, religion, 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, testified 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 represents 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

586 DAWSON v. ENTEK INTERNATIONAL
of a federal court’s jurisdiction over a state law claim is irrelevant 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 burdenshifting framework applies to all of Dawson’s federal and

state discrimination claims.

II. The district court erred in granting summary judgment on Dawson’s claims for retaliation under Title

VII and Or. Rev. Stat. § 659A.030.

Dawson contends that the district court erred “when it concluded 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 proffered 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 discharge 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 employment 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

DAWSON v. ENTEK INTERNATIONAL 587
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 challenged decision, the plaintiff must show that the defendant’s

explanation is merely a pretext for impermissible discrimination. 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 intentionally 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 reasonable 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

588 DAWSON v. ENTEK INTERNATIONAL
the sexual orientation discrimination he was experiencing.

Because Guzon was Dawson’s trainer and immediate manager, 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 sufficient 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 Dawson, 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. 

DAWSON v. ENTEK INTERNATIONAL 589
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 concluded 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. Hopkins, 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 discrimination claim is that he was harassed because he appeared effeminate. 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 Dawson’s own testimony that he does not exhibit effeminate traits,

and concludes he therefore failed to state a claim for sex hostile 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 environment claim by showing that he was subjected to verbal or

physical harassment that was sexual in nature, that the harassment 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

590 DAWSON v. ENTEK INTERNATIONAL
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 quotation 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. (citing 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 judgment on Dawson’s claim for sexual orientation hostile 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

DAWSON v. ENTEK INTERNATIONAL 591
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 orientation 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 environment 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 discrimination before the amendments that took effect in January

2008. 

[10] In 2007, Oregon amended its general antidiscrimination in employment statute to include “sexual orientation” 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 provided 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

592 DAWSON v. ENTEK INTERNATIONAL
also Heller v. Columbia Edgewater Country Club, 195 F.

Supp. 2d 1212, 1222 (D. Or. 2002) (“O.R.S. § 659A.030 prohibits discrimination on the basis of an employee’s sexual orientation.”); Am. Civil Liberties Union of Oregon, Inc. v.

Roberts, 305 Or. 522, 526-27 (1988) (“It is possible to construe some Oregon statutes as prohibiting discrimination

based on sexual orientation.”). Accordingly, we hold the district 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 Rochester, 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 reasonable person would find hostile or abusive and one that the victim 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 affirmative 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 adequate 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).

DAWSON v. ENTEK INTERNATIONAL 593
Entek argues that Dawson presented no evidence that managers 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 terminated 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 liability is available, versus a situation in which a harasser is a

supervisor and yet does not supervise the plaintiff. See Swinton, 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 formal 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 considered 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

594 DAWSON v. ENTEK INTERNATIONAL
by a supervisor. See Nichols, 256 F.3d at 877. The district

court should reconsider whether Entek has made out the affirmative defense after resolving the disputed facts in this case.

If, for example, Entek fired Dawson in retaliation for his protected complaint, it would be difficult to say that Entek had

adequately addressed the problem of harassment of homosexual employees. 

2. Liability for Actions by Coworkers

[14] “ ‘[E]mployers are liable for failing to remedy or prevent a hostile or offensive work environment of which

management-level employees knew, or in the exercise of reasonable 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” offensive. 

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 quotation marks omitted); see also Yamaguchi v. U.S. Dep’t of the

Air Force, 109 F.3d 1475, 1482 (9th Cir. 1997). “The reasonableness 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 conduct.’ ” 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

DAWSON v. ENTEK INTERNATIONAL 595
Cir. 1992). Remedial measures may include some form of

disciplinary action, see Yamaguchi, 109 F.3d at 1482, “proportionate[ ] 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 sufficient 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 ratification of past harassment, even if such harassment independently 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 reconsider 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

596 DAWSON v. ENTEK INTERNATIONAL
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 distress 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 outrageous 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 distress by Entek.

CONCLUSION

Dawson provided sufficient circumstantial evidence to

create a genuine issue of material fact on his claim of retaliaDAWSON v. ENTEK INTERNATIONAL 597
tion. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221

(9th Cir. 1998) (discussing under what circumstances circumstantial evidence may show pretext). The record presents a triable 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.

598 DAWSON v. ENTEK INTERNATIONAL