1 – FINDINGS AND RECOMMENDATION

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

SUSAN F. HARPER,

Plaintiff, 

v.

HOLLAND & KNIGHT LLP, a foreign

limited liability partnership,

Defendant.

Case No. 3:16-cv-00111-YY

FINDINGS AND 

RECOMMENDATION

YOU, Magistrate Judge:

Before the court is defendant Holland & Knight LLP’s (“Holland & Knight”) motion for 

partial summary judgment (ECF #27) on plaintiff Susan F. Harper’s (“Harper”) 3rd and 4th 

claims. Harper brought claims for age discrimination under 29 USC § 623 (1st claim) and ORS 

659A.030 (2nd claim), common-law wrongful termination (3rd claim), and age-based hostile 

work environment under the Civil Rights Act of 1964, 42 USC § 2000e, et seq., and the Age 

Discrimination in Employment Act of 1967, 29 USC §§ 621–634 (4th claim). Compl., ECF #1. 

At oral argument, Harper conceded her 3rd claim should be dismissed. With respect to 

her 4th claim, Harper did not experience age-based discrimination that was severe and pervasive

as a matter of law. Accordingly, Holland and Knight’s motion for partial summary judgment 

(ECF #27) should be GRANTED in its entirety.

BACKGROUND

Harper worked as a receptionist and senior receptionist in Holland & Knight’s Portland 

office for 14 years until she was terminated on September 5, 2014, at age 54. Compl. ¶¶ 13–15. 
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She received positive annual reviews and salary increases throughout her employment and was 

generally well regarded. Id. ¶¶ 17, 20; Didi Young Depo. at 3–5, ECF #31-4; Louis Santiago 

Depo. at 3–5, ECF #31-5. In early 2014, Holland & Knight brought in six new attorneys with 

active litigation practices, but no new support staff. Def.’s Mot. for Partial Sum. J. at 4, ECF #27 

(“Def.’s Mot.”); Pl.’s Resp. to Def.’s Mot. at 8, ECF #31 (“Pl.’s Resp.”). Along with the 

adoption of new technology, this increased workload changed Harper’s duties as a receptionist.

Def.’s Mot. at 3–5; Pl’s Resp. at 5. Holland & Knight claims Harper was unable to fulfill her 

new duties and that after informal counseling and training measures failed, she was terminated 

for poor performance. Def.’s Mot. at 5–6.

Harper alleges that—around the same time, in May 2014—her long-time co-worker, 

Sandra K. Egge (“Egge”), began treating her differently by micromanaging her work, telling her 

that she was working too slowly, and criticizing her for bumping into a table and adjusting the 

heights of office chairs. Compl. ¶ 21; Harper Depo. at 19, 20, 22, ECF #31-1. Egge was a 70-

year-old administrative specialist. Def.’s Mot. at 6; Decl. of Erik Scales in Supp. of Def.’s Mot.

¶ 2 (“Scales Decl.”), ECF #28. “On a few occasions, [when Harper would make a mistake,] Ms. 

Egge stated that [Harper] was having ‘junior moments,’ because [she] was not yet 60 years old, 

explaining that when [she] was 60, these would be ‘senior moments.’” Compl.¶ 22 (“juniormoment comments”); Harper Depo. at 22, ECF #31-1. However, Harper admitted that she could 

not recall how many times these junior-moment comments had been made, in what timeframe 

the comments had been made, or what Egge’s intentions were in making them. Harper Depo. at 

22–23. Egge claims that these comments were benign, that Harper laughed at them without 

hesitation, and that they became a joke between the two of them. Sandra Egge Decl. in Supp. of 

Def.’s Mot. at 7, ECF #33-2. 
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In August 2014, about a month before her termination, Harper claims her supervisor, Erik 

Scales (“Scales”), began to treat her more harshly and to ostracize her. Compl. ¶ 24. Harper 

claims that Scales told her he had spies watching her, began admonishing her for not completing 

tasks that were not assigned to her, was rude and condescending to her, and excluded her from 

staff meetings. Harper Depo. at 8, 17, 21, 26. Scales terminated Harper in September 2014. See

Def.’s Mot. at 2; Scales Decl. ¶¶ 1–2. Shortly before she was terminated, Harper complained to 

Egge that she did not receive her required rest breaks and that Scales was dismissive when she 

complained to him about people walking behind her reception desk. Harper Depo.at 5–6, 18–19, 24. 

Harper alleges that when she was terminated, Scales told her she was “too old,” “too slow,” that 

she had “been around too long,” and that even the new intern did a better job than her. Compl. 

¶ 30; Harper Depo. at 3, 15–16.

LEGAL STANDARDS

Under FRCP 56(a), “[t]he court shall grant summary judgment if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” The party moving for summary judgment bears the initial responsibility of 

informing the court of the basis for the motion and identifying portions of the pleadings, 

depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of 

a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the 

moving party does so, the nonmoving party must “go beyond the pleadings” and “designate 

‘specific facts showing that there is a genuine issue for trial.’” Id. at 324 (citing FRCP 56(e)).

In determining what facts are material, the court considers the underlying substantive law 

regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, 

only disputes over facts that might affect the outcome of the suit preclude the entry of summary 

judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a 
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reasonable jury to return a verdict for the non-moving party. Id. at 248–49. A “scintilla of 

evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to 

create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th 

Cir. 2000).

The court “does not weigh the evidence or determine the truth of the matter, but only 

determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 

1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are 

resolved against the moving parties and inferences are drawn in the light most favorable to the 

non-moving party.” Addisu, 198 F.3d at 1134.

FINDINGS

A reasonable trier of fact could not conclude that Harper & Knight’s conduct was 

sufficiently severe or pervasive to create an age-based hostile work environment. 

I. Legal Framework

To prove an age-based hostile-work-environment claim, Harper must show that she was 

subjected to verbal or physical conduct based on age, that the conduct was unwelcome, and that 

the conduct was sufficiently severe or pervasive as to alter the conditions of her employment and 

create an age-based hostile work environment. E.g., Harris v. Forklift Systems, Inc., 510 U.S. 

17, 21–23(1993); Fuller v. City of Oakland, 47 F.3d 1522, 1527–28 (9th Cir. 1995); Ellison v. 

Brady, 924 F.2d 872, 878–79 (9th Cir. 1991). “[She] must establish that the conduct at issue was 

both objectively and subjectively offensive: [she] must show that a reasonable person would find 

the work environment to be ‘hostile or abusive,’ and that [she] in fact did perceive it to be so.” 

Dawson v. Entek Int'l, 630 F.3d 928, 937–38 (9th Cir. 2011) (citing Faragher v. City of Boca 

Raton, 524 U.S. 775, 787 (1998)).
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In determining whether conduct is sufficiently hostile to constitute a hostile work 

environment, courts will look at “all the circumstances,” including the “frequency of the 

discriminatory conduct; its severity; whether it’s physically threatening or humiliating, or a mere 

offensive utterance; and whether it unreasonably interferes with an employee’s work 

performance.” Harris, 510 U.S. at 23. The level of “severity or seriousness [required] ‘varies 

inversely with the pervasiveness or frequency of the conduct.’” Nichols, 256 F.3d at 872 (citing 

Ellison, 924 F.2d at 878). However, “[s]imple teasing, offhand comments, and isolated incidents 

(unless extremely serious)[] will not amount to discriminatory changes in the terms and 

conditions of employment.” Faragher, 524 U.S. at 788 (internal citation and quotation marks

omitted).

II. Discussion

The only age-based conduct Harper alleges she suffered were Egge’s junior-moment 

comments and the statement Scales made when he terminated her employment. 

It is unclear whether the junior-moment comments were unwelcome. Harper did not 

complain about them to Egge or Scales, she did not report them to Holland & Knight’s Fair 

Employment Practices Committee, and she could not recall reporting the comments to anyone in 

management. Depo. of Susan Harper at 16–19, ECF #29-1. Significantly, when asked if Egge 

had made discriminatory comments, Harper stated “[n]ot that I am aware of. I don’t know.” Id.

at 10. Harper asserts the junior-moment comments are significant because Egge was her de facto 

supervisor and a high-level official at Holland & Knight. Pl.’s Resp. at 14; Depo. of Aaron 

Tuttle at 3, ECF #31-3. However, Egge was an administrative specialist—she was neither an 

executive nor a high-level official—and Scales was Harper’s supervisor. Scales Decl. ¶ 2; Reply 

in Supp. of Def.’s Mot. at 5, (“Def.’s Reply”), ECF #32. Egge was not “in charge” when Scales 
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was absent from the Portland office and she did not make employment decisions such as hiring 

or firing. Scales Decl. ¶ 2; Def.’s Reply at 5. Although Egge may have delegated work to 

Harper, and Harper may have perceived her as a supervisor, Egge was not empowered to take 

any tangible employment actions against Harper. Scales Decl. ¶ 2. Legally, therefore, Egge was 

not Harper’s supervisor. See Vance v. Ball State Univ., 133 S.Ct. 2434, 2443 (2013) (supervisors 

are individuals with authority to make tangible employment decisions).

In any event, these junior-moment comments were, at worst, “[s]imple teasing, offhand 

comments, and isolated incidents” not amounting to actionable misconduct. Faragher, 524 U.S. 

at 788. They could not objectively be perceived by a reasonable 54-year old to be “hostile,” 

particularly when the speaker was 70-years old. Furthermore, Harper does not allege that these 

comments caused her such distress that they interfered with her work performance. 

A reasonable 54-year old could find Scales’ statements were offensive. Harper claims 

Scales told her she was “too old” and “too slow,” that she had “been around too long,” and that a 

younger summer intern did a better job than her. Compl. ¶ 30; Harper Depo. at 3, 15–16. 

However, these comments, allegedly made during the meeting when Harper was terminated, 

constitute the sole instance of objectively hostile age-based conduct. And being the sole 

instance, they are not pervasive. Further, they amount to a “mere offensive utterance” and 

cannot be construed as physically threatening or humiliating. See Harris, 510 U.S. at 23. 

Because they were made at the time she was terminated, they could not have interfered with her

work performance or otherwise altered the conditions of her employment. 

Harper cites Landucci v. State Farm Ins. Co., 5:14-CV-00789-LHK, 2014 WL 3705117 

(N.D. Cal. July 23, 2014), and Hong v. Right Mgt. Consultants, Inc., C 04-4011 PJH, 2006 WL 

335291 (N.D. Cal. Feb. 14, 2006), for the proposition that together, Egge and Scales’ other 
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conduct amounts to a hostile work environment. However, the repeated and ongoing hostile 

conduct that the plaintiffs in those cases endured over periods of years demonstrates why the few 

troublesome incidents that Harper endured in the weeks leading up to her termination are neither 

sufficiently severe nor pervasive to constitute a hostile work environment.

In Landucci, the plaintiff survived a motion to dismiss on her gender-based hostile-workenvironment claim because her supervisor engaged in a repeated pattern of micromanagement 

and criticism over two periods spanning at least one year each. 2014 WL 3705117, at *1–*2, 

*5–*6. There, the supervisor looked into the plaintiff’s company vehicle and asked her why 

there were shopping bags in the back seat, checked to see where she stored her computer at 

night, and confiscated it. Id. at *1. He instructed her on tasks she knew how to perform such as 

how to write auto estimates, how to take photographs, and how to talk to customers. Id. On five 

or six occasions he asked her how old she was, when she was going to retire, and if she had 

trouble bending down on her knees. Id. He would find fault in her commute times, customer 

service, hours worked, and would sometimes call her several times a day to berate her, which 

made her late to appointments. Id. He critiqued her for a minute discrepancy in her time card, 

use of the IT department, and her attire. Id. at *1–*2. He denied her requests for overtime 

despite regularly granting her male co-workers permission to work overtime. Id. at *2. On four 

occasions he refused to allow her to leave work early when she was ill. Id. Importantly, the 

plaintiff reported this unfair and demeaning treatment to multiple human resources 

representatives and even spoke to the section manager; however, no actions were taken to change 

the supervisor’s behavior. Id. at *2.

The plaintiff in Hong similarly survived summary judgement on her gender-based 

hostile-work-environment claim because she showed that on multiple occasions for more than 
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two years her supervisor raised his hand to her signaling for her to “shut up,” stepped in front of 

her to block others’ view of her, berated her while standing over and pointing his finger at her, 

humiliated her in front of other employees, refused to acknowledge that use of the term “fucking 

matriarch” constituted sexual harassment, excluded her from training sessions, re-assigned

accounts that she brought in to her male co-workers, and praised her male co-workers while

singling her out during sales meetings and inaccurately accusing her of poor performance. 2006 

WL 335291, at *3–*4. 

The relentless and demeaning conduct endured in these cases contrasts sharply with the 

isolated, innocuous, and short-lived conduct that Harper endured. Considering the totality of the 

circumstances—even construing Harper’s allegations broadly and in her favor and accepting that 

her subjective sentiment towards the alleged comments and misconduct was genuinely felt—the 

necessary pervasiveness and severity is lacking. Justice v. Rockwell Collins, Inc., 117 F. Supp. 

3d 1119, 1139 (D. Or. 2015) (dismissing sexually hostile work environment claim for lack of 

pervasiveness and severity); Aoyagi v. Straub Clinic & Hosp., Inc., 140 F. Supp. 3d 1043, 1059 

(D. Haw. 2015) (finding that an incident where the supervisor told a plaintiff that younger 

employees were “more tech savvy and in tune with what’s going on” was clearly insufficient to 

demonstrate discriminatory animus based on plaintiff’s age).

RECOMMENDATION

The court should GRANT Holland & Knight’s motion for partial summary judgment 

(ECF #27) because Harper conceded her 3rd claim should be dismissed at oral argument and her 

4th claim—that she suffered age-based discrimination—fails as a matter of law. 

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SCHEDULING ORDER

This Findings and Recommendation will be referred to a district judge. Objections, if 

any, are due Monday, August 21, 2017. If no objections are filed, then the Findings and 

Recommendation will go under advisement on that date.

If objections are filed, then a response is due within 14 days after being served with a 

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings 

and Recommendation will go under advisement.

NOTICE

This Findings and Recommendation is not an order that is immediately appealable to the 

Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules 

of Appellate Procedure, should not be filed until entry of a judgment.

DATED August 7, 2017.

/s/ Youlee Yim You

Youlee Yim You

United States Magistrate Judge