Case 3:21-cv-00655-SI Document 86 Filed 12/29/22 Page 1 of 43
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF OREGON
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`Case No. 3:21-cv-655-SI
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`OPINION AND ORDER
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`Plaintiff,
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`v.
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`RON TSUR,
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`INTEL CORPORATION,
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`Defendant.
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`Shanti S. Lewallen and Lee C. Dudley, LEWALLEN LAW LLC, 65 SW Yamhill Street,
`Suite 300, Portland, OR 97204; and Andrew J. Horowitz and Bruce C. Fox, OBERMAYER
`REBMANN MAXWELL & HIPPEL LLP, 525 William Penn Place, Suite 1710, Pittsburgh, PA 15219.
`Of Attorneys for Plaintiff Ron Tsur.
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`Helen M. McFarland, SEYFARTH SHAW LLP, 999 Third Avenue, Suite 4700, Seattle, WA 98104;
`Christopher J. DeGroff and Andrew Scroggins, SEYFARTH SHAW LLP, 233 S. Wacker Drive,
`Suite 8000, Chicago, IL 60606; and Raymond C. Baldwin, SEYFARTH SHAW LLP, 975 F Street,
`N.W., Washington, DC 20004. Of Attorneys for Defendant Intel Corporation.
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`Michael H. Simon, District Judge.
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`Plaintiff Ron Tsur (Tsur) brings this lawsuit against his former employer Defendant Intel
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`Corporation (Intel). In his Amended Complaint, Tsur alleges that Intel violated federal and state
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`laws by: (1) discriminating against Tsur because of his age (Claim One); (2) adopting a facially
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`neutral policy that had a disparate impact on older employees (Claim Two); (3) retaliating
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`against Tsur for reporting and/or opposing age discrimination (Claim Three); and
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`PAGE 1 – OPINION AND ORDER
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`Case 3:21-cv-00655-SI Document 86 Filed 12/29/22 Page 2 of 43
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`(4) discriminating against Tsur because of his Israeli national origin (Claim Four). Intel moves
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`for summary judgment on all claims. ECF 61. The Court grants in part and denies in part Intel’s
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`motion for summary judgment. For the reasons given below, Tsur may proceed to trial on his
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`first, third, and fourth claims. The Court grants summary judgment in favor of Intel against
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`Tsur’s second claim.
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`A. Motion for Summary Judgment
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`STANDARDS
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`A party is entitled to summary judgment if the “movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
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`Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine
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`dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
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`the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
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`the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th
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`Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
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`drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
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`on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
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`the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,
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`255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for
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`the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
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`Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
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`B. Cat’s Paw Doctrine
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`Under the “cat’s paw” theory of liability, the discriminatory animus of a supervisor is
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`imputed to the employer if the supervisor committed an act with discriminatory intent, intended
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`for that act to cause an adverse employment action, and that act is a proximate cause of the
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`Case 3:21-cv-00655-SI Document 86 Filed 12/29/22 Page 3 of 43
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`ultimate adverse employment action. See Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011) (“We
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`therefore hold that if a supervisor performs an act motivated by antimilitary animus that is
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`intended by the supervisor to cause an adverse employment action, and if that act is a proximate
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`cause of the ultimate employment action, then the employer is liable under [the Uniformed
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`Services Employment and Reemployment Rights Act].” (emphasis in original) (footnotes
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`omitted)); Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir. 2007) (considering the contours of
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`cat’s paw liability and holding that “if a subordinate, in response to a plaintiff’s protected
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`activity, sets in motion a proceeding by an independent decisionmaker that leads to an adverse
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`employment action, the subordinate’s bias is imputed to the employer if the plaintiff can prove
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`that the allegedly independent adverse employment decision was not actually independent
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`because the biased subordinate influenced or was involved in the decision or decisionmaking
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`process”); see also Qamhiyah v. Iowa State Univ. of Sci. & Tech., 566 F.3d 733, 742 (8th Cir.
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`2009) (“‘[C]at’s paw’ refers to a situation in which a biased subordinate, who lacks decision-
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`making power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a
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`discriminatory employment action.” (quoting EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450
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`F.3d 476, 484 (10th Cir. 2006)). In addition, Oregon has applied federal precedent on the cat’s
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`paw doctrine to its state antidiscrimination and antiretaliation provisions. Ossanna v. Nike, Inc.,
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`365 Or. 196, 209-10 (2019) (holding that “in Oregon statutory employment discrimination and
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`retaliation cases, a plaintiff may assert the ‘cat’s paw’ theory” to impute bias from a supervisor
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`without decisionmaking authority to the ultimate decisionmaker) (citing Poland, 494 F.3d
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`at 1182-83).
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`BACKGROUND
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`Tsur began working with Intel as a consultant starting in 1984. ECF 69 at 123. In 2011,
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`after about 27 years of contract work with Intel, Tsur joined Intel as a full-time employee. Id. As
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`PAGE 3 – OPINION AND ORDER
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`Case 3:21-cv-00655-SI Document 86 Filed 12/29/22 Page 4 of 43
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`a full-time employee, Tsur’s first supervisor at Intel was Bruce Jones (Jones). Tsur states that
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`during his first one-on-one meeting with Jones, as well as during other meetings later, Jones
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`made derogatory comments about Tsur’s age and national origin. For example, Tsur contends
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`that Jones told Tsur: “If you think age is an advantage in this job you are mistaken,” id. at 105
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`(Tsur Dep. 225:1-6), “You Israelis have too narrow a view of the world,” ECF 81-1 at 14 (Tsur
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`Dep. 232:6-22), and “[Y]ou Israelis speak too directly with coworkers, that is not a good way to
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`conduct business at Intel.” Id. at 17 (Tsur Dep. 235:2-16).
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`Tsur requested several times to be transferred away from Jones, all without success.
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`ECF 69 at 107 (Tsur Dep. 254:14-21). Tsur then sent a letter on April 11, 2012, to Aicha Evans
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`(Evans), who was the vice president of the department. ECF 69 at 123-25. Tsur described his
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`background and experience and noted in his letter that he was 59 years old at the time of Jones’s
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`comments. Id. Tsur highlighted that Jones had stated that he had “never managed anyone who is
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`10 years older than me” and told Tsur that he “didn’t match the profile of [Jones’s] team.” Id. at
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`124. Tsur noted that Jones had given Tsur a “Satisfactory” performance review (also called a
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`“Focal”) for his work throughout 2011, but in Tsur’s letter to Evans, Tsur took issue with several
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`of Jones’s qualitative comments about Tsur’s behavior. Id. For example, Jones wrote in the
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`evaluation that Tsur engaged in “building Silos” and “Tom Sawyerism.” Id. at 125. Tsur
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`explained to Evans that these comments were “ludicrous” and “bad spirited.” Id.
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`Jones had also given Tsur a “Stock Share Level” award of 3 (SSL3). ECF 69 at 110-12
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`(performance review), 116-17 (stock letter and pay letter).1 Intel has a “Restricted Stock Unit”
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`1 Contemporaneous documents indicate that Tsur received his performance evaluation on
`April 9, 2012. See ECF 69 at 124 (letter from Tsur dated April 11, 2012, referring to the
`evaluation as having been received “This Monday,” two days earlier). The parties both use the
`date of April 9, 2012 when referring to Jones’s evaluation of Tsur’s performance in 2011. Jones
`delivered this evaluation to Tsur in April 2012. ECF 64 at 3 (Jones Decl. ¶ 10). Tsur’s stock and
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`Case 3:21-cv-00655-SI Document 86 Filed 12/29/22 Page 5 of 43
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`(RSU) policy that awards eligible employees with time-vesting stock options as a form of bonus
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`compensation. ECF 65 at 4 (Sanchez Decl. ¶ 9). 2 Supervisors can award employees with stock
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`options on a sliding scale, from “Stock Share Level 1” (SSL1), which offers the most stock
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`options, to “Stock Share Level 5” (SSL5), which provides no stock options. Id. (Sanchez Decl. ¶
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`11). These stock options vest five years after issuance. ECF 69 at 160 (Begis Aff. 1).3
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`Supervisors were encouraged to assign SSL5 awards to five percent of the employees they
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`supervised. Id. at 156 (Rees Aff. 4).
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`In a 2012 email, Tsur stated that he expected his letter to Evans would be kept
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`confidential and hoped that Tsur could resolve his situation with Jones through mediation. Id.
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`at 127. Tsur’s letter, however, was forwarded to Intel’s Human Resources department and given
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`to Deanna Thronson (Thronson), who began an investigation into Tsur’s concerns. Id. at 99-100
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`(Thronson 30(b)(6) Dep. 49:12-50:11); see also ECF 63 at 2 (Thronson Decl. ¶ 3). Thronson first
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`spoke with Tsur in spring 2012. ECF 63 at 3 (Thronson Decl. ¶ 4).
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`The parties present differing versions of what was said during Thronson and Tsur’s first
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`conversation. Thronson states in her declaration that she asked Tsur about his recitation of
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`Jones’s age-related comments about not managing anyone ten years older than himself and Tsur
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`pay letters for his 2011 performance, however, are dated March 18, 2012, and indicate that
`Tsur’s pay change became effective on April 1, 2012. ECF 69 at 116-17.
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`2 David Sanchez (Sanchez) is an Intel employee who held various Human Resources-
`related positions and based on this work experience, submitted an affidavit describing Intel’s
`Code of Conduct, Employment Guidelines, compensation, and other internal policies in support
`of Intel’s motion for summary judgment. ECF 65 at 2 (Sanchez Decl. ¶¶ 2-3, 9-11).
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`3 Glenn Begis (Begis) was a manager at Intel who submitted an affidavit in support of
`Tsur’s claims against Intel. Begis was also deposed in this action. According to Begis’s
`testimony in deposition, Begis did not work directly with Tsur at Intel. ECF 71-1 at 9-10 (Begis
`Dep. 109:4-110:3).
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`PAGE 5 – OPINION AND ORDER
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`not matching the “profile” of Jones’s “team.” Id. (Thronson Decl. ¶ 5). Thronson contends that
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`Tsur “did not want to complain about any unfair treatment regarding his age” or “tell [Thronson]
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`that Mr. Jones made any age-related comments.” Id. (Thronson Decl. ¶ 6). Instead, according to
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`Thronson, Tsur focused on rebutting what he believed were inaccurate criticisms of about him.
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`Id. at 4. (Thronson Decl. ¶ 7).
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`Tsur, however, testified during his deposition that in response to Thronson’s questions,
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`Tsur confirmed that there was “age discrimination” and that he described Intel’s “perception that
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`young people create all the innovation,” which affects managers’ evaluations of people by age.
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`ECF 62-1 at 54-55 (Tsur Dep. 240:21-241:5). This is not necessarily inconsistent with
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`Thronson’s declaration, because someone can report conduct without wanting to “make a
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`complaint” about that conduct. According to Tsur, at that time he did not want an investigation
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`but simply asked to be reassigned away from Jones’s supervision. At this stage of the litigation,
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`the Court must view all factual disputes, including what was said the first meeting between Tsur
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`and Thronson, in the light most favorable to Tsur.
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`Tsur and Thronson spoke several additional times during the next few months. ECF 63 at
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`3 (Thronson Decl. ¶ 8). After speaking with Tsur, Jones, and others, in July 2012 Thronson
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`closed her investigation and concluded that Jones did not engage in any improper conduct. Id. at
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`3 (Thronson Decl. ¶¶ 8-9); ECF 62-3 at 16-22 (Thronson 30(b)(6) Dep. at 55-62, discussing the
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`closing of her investigation and her meeting on July 13, 2012 with Tsur to convey her findings).
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`Tsur and Thronson, however, continued to communicate in August and September 2012. ECF 63
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`at 4 (Thronson Decl. ¶¶ 11-12). Tsur believed he had additional information that would change
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`the findings of Thronson’s investigation into Jones’s conduct. ECF 62-3 at 21-22
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`(Thronson 30(b)(6) Dep. 61:25-62:2). Tsur also emailed Thronson on September 25, 2012,
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`stating that he “fully expect[s] a retaliatory action will be taken against me” by Jones. Id. at 24
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`(Thronson 30(b)(6) Dep. 64:5-9).
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`On about September 6, 2012, Jones prepared a mid-year “Below Expectations”
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`evaluation of Tsur, with an effective date of September 26, 2012. ECF 69 at 133-34, 177. Intel’s
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`employee services system generated an automatic notice on October 1, 2012, about Tsur’s
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`change in status to a proficiency of “Below Expectations.” Id. at 133. The record is unclear when
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`the performance evaluation was delivered to Tsur. On December 6, 2012, Jones emailed others at
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`Intel indicating that Jones planned to offer Tsur a deal: Tsur could either accept a “voluntary
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`separation” resignation package from Intel or remain an employee. Id. at 138. To remain an
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`employee, however, Tsur must (1) receive an “Improvement Required” performance rating and
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`(2) successfully complete a “Corrective Action Plan” (CAP). Id.
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`Tsur emailed Thronson several times on December 25, 2012, including an email noting
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`that Tsur had sent Thronson three other emails with “background information” to prepare for
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`their telephone conference the next day. Id. at 126-28. One of these emails included a letter that
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`Tsur says he composed in September. Id. at 127-28. Tsur, Thronson, and Intel Manager Begis
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`spoke for more than an hour on December 26th. ECF 63 at 4 (Thronson Decl. ¶ 14). During this
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`conversation, they discussed that if Tsur remained with Intel under the CAP, Tsur would receive
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`an “Improvement Required” performance rating. Id. Ultimately, Tsur agreed to remain an
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`employee at Intel and attempt to satisfy the CAP, rather than resign. ECF 63 at 5 (Thronson
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`Decl. ¶ 16). Jones also gave Tsur an SSL5, along with Tsur’s Improvement Required rating. See
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`ECF 65 at 6 (Sanchez Decl. ¶ 22). Jones delivered Tsur’s 2013 review and SSL5 award (for the
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`year 2012) in spring 2013. ECF 64 at 5 (Jones Decl. ¶ 17).
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`PAGE 7 – OPINION AND ORDER
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`In January 2013, Thronson authorized Tsur’s transfer to a new position at Intel under a
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`different supervisor. ECF 63 at 5 (Thronson Decl. ¶ 16). Tsur would still remain under the CAP
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`directed by Jones, but his new supervisor would tailor its requirements and supervise its
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`completion. Id. Thronson states in her declaration that Tsur never complained of discrimination
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`or retaliation. Id. (¶¶ 12, 13). The record, however, contains both Tsur’s September 2012 email
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`to Thronson describing his expected retaliation from Jones, and a different letter from Tsur to
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`Thronson, dated January 27, 2013, in which Tsur stated that Jones had retaliated against Tsur
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`because of Thronson’s investigation. ECF 69 at 130.
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`In April 2014, Tsur’s new supervisor, Steven Nahas (Nahas), gave Tsur a “Successful”
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`performance review and an SSL4 award for Tsur’s work throughout 2013. Id. at 62 (Nahas
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`Dep. 38:12-18) (“Successful” review); Id. at 145 (Nahas Aff. 2) (SSL4 award). Nahas stated that
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`he gave a lower SSL award to higher-salaried employees, including Tsur, as an “equalization
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`mechanism” for lower-salaried employees, who received higher SSL awards. Id. at 145 (Nahas
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`Aff. 2). Nahas also explained that because of Jones, Nahas’s department had to take Tsur under a
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`CAP “that would restore [Tsur’s] performance rating back to ‘successful,’” that Tsur behaved
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`with “true grace” even though Nahas found the whole process to be a “superfluous wringer,” and
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`that Nahas thought Jones “came off as an abrasive bully.” Id. at 150 (Nahas Aff. 7). Nahas noted
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`that after Tsur “very successfully” completed the CAP, his rating was “restored” to “successful”
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`as “required” by Intel’s human resource policies. Id.
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`Nahas recommended transferring Tsur to another position under a third supervisor, Roger
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`Rees (Rees). ECF 69 at 148 (Nahas Aff. 5). In early to mid-2015, Rees gave Tsur a “Successful”
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`performance review and an SSL5 award for Tsur’s work throughout 2014. Id. at 170
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`(“Successful” review); id. at 155-56 (Rees Aff. 3-4) (SSL5 award). Rees stated that (1) Intel sets
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`strict budgets for stock allotments in each group, (2) the guidelines state that stock awards can be
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`given based on money and considering whether an employee is paid higher relative to their peer
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`group or for internal equity, (3) he made Tsur’s stock allocation “[f]or purposes of trying to
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`reach . . . better equity within [the] team,” and 4) had Rees been able “to do what [was] right,
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`rather than meet an artificial target, Mr. Tsur would have been granted SSL3.” Id. at 156 (Rees.
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`Aff. 4).
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`In the first quarter of 2015, Intel decided to lay off a certain number of employees in a
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`Performance-based Mandatory Buyout (PMB layoff) to compensate for a decrease in Intel’s
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`revenue. ECF 65 at 5 (Sanchez Decl. ¶¶ 14-15). Tsur received a letter from Intel on June 15,
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`2015, documenting Tsur’s layoff and explaining that his termination was permanent. ECF 69
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`at 158-59. This letter stated that Tsur had qualified for Intel’s layoff criteria because (1) Tsur
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`received an SSL5 that year and (2) a performance review of “Improvement Required” or “Below
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`Expectations” or an SSL4 or SSL5 in the previous three years. Id. (Tsur’s letter); ECF 65 at 6
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`(Sanchez Decl. ¶¶ 17, 22).
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`After the termination of Tsur’s employment, Rees wanted to hire Tsur back as an
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`contractor for Intel but learned that Tsur could not return to any form of work at Intel based on
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`the terms of Intel’s reduction in force policies. ECF 69 at 156 (Rees Aff. 4). On November 12,
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`2015, Tsur emailed Intel to ask whether he could work for Intel as a contractor. ECF 69 at 174. A
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`representative from Intel responded that Tsur could not do so and that Intel was “not looking at
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`these [i.e., those affected by the 2015 layoff] on a case by case basis and are applying the policy
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`uniformly across the board.” Id. (emphasis added). Rees’s affidavit mentions that Tsur filled out
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`an “Open Door Employee Intake Form,” dated June 17, 2015, to change his SSL5 award
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`retroactively, and subsequently recorded a telephone conversation with Intel’s Human Resources
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`department after Tsur’s request was refused. Id. at 178 (Rees Aff. 1). Tsur then filed this lawsuit
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`against Intel in April 2021. ECF 1.
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`DISCUSSION
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`Intel moves for summary judgment against: (1) Tsur’s age discrimination disparate
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`treatment claims; (2) Tsur’s age discrimination disparate impact claims; (3) Tsur’s claims of
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`unlawful retaliation for opposing or reporting age discrimination; and (4) Tsur’s national origin
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`discrimination disparate treatment claims. Tsur asserts each claim under both federal and state
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`law. As noted in the Court’s Opinion and Order on Intel’s partial motion to dismiss (ECF 22),
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`the applicable statute of limitations bars Tsur’s discrimination and retaliation claims arising out
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`of events that occurred before January 12, 2015 (for federal claims) and March 18, 2015 (for
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`state claims).
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`Under Local Rule 56-1(b), Intel raises in its reply several objections challenging the
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`evidence that Tsur submitted in response to Intel’s motion. Tsur filed a sur-reply addressing
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`these concerns. The Court first addresses these objections and then considers Intel’s motion on
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`the merits.
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`A. Evidentiary Objections
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`Intel objects that much of the evidence that Tsur relies upon in his opposition to Intel’s
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`motion for summary judgment is unauthenticated, irrelevant, hearsay, not submitted under
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`penalty of perjury, or inadmissible for other reasons. At summary judgment, however, the Court
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`may consider “evidence submitted in an inadmissible form, so long as the underlying evidence
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`could be provided in an admissible form at trial, such as by live testimony.” JL Beverage Co. v.
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`Jim Beam Brands Co., 828 F.3d 1098, 1110 (9th Cir. 2016); see also Sandoval v. Cnty. of San
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`Diego, 985 F.3d 657, 665-66 (9th Cir. 2021) (rejecting relevance, hearsay, and foundation
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`evidentiary objections at summary judgment and noting that “[i]f the contents of a document can
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`be presented in a form that would be admissible at trial—for example, through live testimony by
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`the author of the document—the mere fact that the document itself might be excludable hearsay
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`provides no basis for refusing to consider it on summary judgment”); cf. Fed. R. Civ. P. 56(c)(2)
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`(permitting a party to “object that the material cited to support or dispute a fact cannot be
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`presented in a form that would be admissible in evidence”); 56(c)(4) (establishing that a
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`declaration in support of summary judgment must present “facts that would be admissible in
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`evidence”).
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`In evaluating a nonmoving party’s facts offered at summary judgment, the Court does
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`“not focus on the admissibility of the evidence’s form. [The Court] instead focus[es] on the
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`admissibility of its contents.” Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see also
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`Celotex, 477 U.S. at 324 (“We do not mean that the nonmoving party must produce evidence in a
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`form that would be admissible at trial in order to avoid summary judgment.”); Norse v. City of
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`Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (“[T]he evidence presented at the summary
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`judgment stage does not yet need to be in a form that would be admissible at trial[.]”); Block v.
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`City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) (“To survive summary judgment, a
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`party does not necessarily have to produce evidence in a form that would be admissible at trial,
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`as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56.”). For
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`example, in Fraser the Ninth Circuit considered a diary’s contents as evidence to defeat a motion
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`for summary judgment, despite a hearsay challenge, because the contents of the diary “could be
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`admitted into evidence at trial in a variety of ways.” Fraser, 342 F.3d at 1037. The court noted,
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`for example, that the witness “could testify to all the relevant portions of the diary from her
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`personal knowledge.” Id. “Because the diary’s contents could be presented in an admissible form
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`at trial, we may consider the diary’s contents in the [movant’s] summary judgment motion.” Id.
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`Intel’s argument cites primarily out-of-circuit cases to support its contention that Tsur’s
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`evidence must be disregarded. The only Ninth Circuit cases cited are Pfingston v. Ronan
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`Engineering Co., 284 F.3d 999 (9th Cir. 2002), and Orr v. Bank of America, 285 F.3d 764 (9th
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`Cir. 2002). Pfingston, however, applied the pre-2010 version of Rule 56 and noted that then-
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`Rule 56(e) (now Rule 56(c)(4)) required affidavits to set forth facts that would be admissible in
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`evidence and determined that the plaintiff failed to meet that burden. 284 F.3d at 1003-04.
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`Orr stated that only admissible evidence could be considered at summary judgment. 285
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`F.3d at 773. Orr, however, was an outlier and inconsistent with many Ninth Circuit cases,
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`including later cases. As set forth above, many Ninth Circuit cases apply the text of then-
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`Rule 56(e) and require only that the contents of evidence at summary judgment be able to be
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`submitted in a form that is admissible at trial. They do not require parties to submit evidence in
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`an already admissible form to be considered at summary judgment. In any event, the 2010
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`amendments to Rule 56 codified the Ninth Circuit’s approach in Fraser, Norse, and Block and
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`supersede the approach in Orr. Thus, Intel’s evidentiary argument on this point is without merit.
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`Additionally, Tsur filed a sur-reply to address Intel’s specific evidentiary arguments.
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`ECF 72. Tsur attached three declarations to his sur-reply that cures any authentication deficiency
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`that his earlier filings may have contained. ECF 73 (Lewallen Decl.); ECF 74 (Tsur Decl.);
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`ECF 75 (Killingsworth Decl.). The challenged deficiencies also may be cured in Tsur’s expert
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`report or other evidence at trial. Intel does not argue that Tsur’s evidence cannot be submitted in
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`an admissible form at trial. Accordingly, Intel’s evidentiary objections are overruled.
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`PAGE 12 – OPINION AND ORDER
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`Case 3:21-cv-00655-SI Document 86 Filed 12/29/22 Page 13 of 43
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`B. Age Discrimination
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`1. Disparate Treatment
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`Tsur alleges disparate treatment age discrimination under the federal Age Discrimination
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`in Employment Act of 1967 (ADEA)4 and Oregon’s anti-discrimination law.5 Tsur presents two
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`theories of disparate treatment: one under the “cat’s paw” doctrine based on Jones’s purported
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`discriminatory animus and another under Intel’s purported neutral selection criteria for the 2015
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`reduction in force that Tsur alleges contain an inherent age bias.
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`“When a plaintiff alleges disparate treatment based on direct evidence in an ADEA claim,
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`[the Ninth Circuit does] not apply the burden-shifting analysis set forth in McDonnell Douglas
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`Corporation v. Green. 411 U.S. 792 (1973), in determining whether the evidence is sufficient to
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`defeat a motion for summary judgment.” Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802,
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`812 (9th Cir. 2004). Direct evidence is evidence that, “if believed, proves the fact of
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`discriminatory animus without inference or presumption.” Vasquez v. Cnty. of Los Angeles, 349
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`F.3d 634, 640 (9th Cir. 2003) (cleaned up). “Racist or sexist [or ageist] statements constitute
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`such ‘direct evidence’ of discrimination.” Aragon v. Republic Silver State Disposal Inc., 292
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`F.3d 654, 662 (9th Cir. 2002) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th
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`Cir. 1998)). A single discriminatory comment by a supervisor or decisionmaker who influenced
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`an adverse employment decision can be sufficient to preclude summary judgment. Dominguez-
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`Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1039 (9th Cir. 2005).
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`Tsur alleges that Jones made ageist comments evidencing discriminatory animus and that
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`Jones influenced the final decisionmaking that resulted in Tsur’s layoff. Tsur, however,
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`4 29 U.S.C. § 623(a)(1) and (d).
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`5 Or. Rev. Stat. (ORS) § 659A.030.
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`PAGE 13 – OPINION AND ORDER
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`Case 3:21-cv-00655-SI Document 86 Filed 12/29/22 Page 14 of 43
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`expressly contends that he is not relying on direct evidence but is instead arguing that his
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`evidence is circumstantial and, thus, that McDonnell Douglas burden shifting applies.
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`Accordingly, the Court will review Intel’s motion under the three-part McDonnell Douglas
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`framework.
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`The McDonnell Douglas framework requires that an employee first establish a prima
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`facie case of age discrimination. Diaz v. Eagle Produce Ltd., 521 F.3d 1201, 1207 (9th
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`Cir. 2008). If the employee does so, then “the burden shifts to the employer to articulate a
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`legitimate, non-discriminatory reason for its adverse employment action.” Id. If the employer
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`meets that burden, “the employee must then prove that the reason advanced by the employer
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`constitutes mere pretext for unlawful discrimination.” Id.
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`To establish a prima facie case of disparate treatment under the ADEA, Tsur must show
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`that he was
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`(1) at least forty years old, (2) performing his job satisfactorily,
`(3) discharged, and (4) either replaced by substantially younger
`employees with equal or inferior qualifications or discharged under
`circumstances otherwise “giving rise to an inference of age
`discrimination.”
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`Id. at 1207 (quoting Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000)). “The
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`requisite degree of proof necessary to establish a prima facie case for Title VII and ADEA claims
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`on summary judgment is minimal and does not even need to rise to the level of a preponderance
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`of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994), as amended on
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`denial of reh’g (July 14, 1994). If a plaintiff meets this burden, it “creates a presumption that the
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`employer unlawfully discriminated against the employee.” Tex. Dep’t of Cmty. Affs. v.
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`Burdine, 450 U.S. 248, 254 (1981).
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`Similarly, Oregon state law makes it unlawful for an employer to “discriminate against
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`the individual in compensation or in terms, conditions, or privileges of employment,” because of
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`PAGE 14 – OPINION AND ORDER
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`Case 3:21-cv-00655-SI Document 86 Filed 12/29/22 Page 15 of 43
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`that individual’s “race, color, religion, sex, sexual orientation, gender identity, national origin,
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`marital status or age if the individual is 18 years of age or older.” ORS § 659A.030(1)(b). The
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`McDonnell Douglas burden-shifting framework applies to state age discrimination claims when
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`they are brought in federal court. See Dawson v. Entek Int’l, 630 F.3d 928, 934-35 (9th
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`Cir. 2011) (concluding that the McDonnell Douglas burden-shifting framework is federal
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`procedural law and thus applies to state claims whether the basis of the federal court’s
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`jurisdiction over state claims is pendent or diversity).
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`“[T]he plaintiff in an employment discrimination action need produce very little evidence
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`in order to overcome an employer’s motion for summary judgment. This is because the ultimate
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`question is one that can only be resolved through a searching inquiry—one that is most
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`appropriately conducted by a factfinder, upon a full record.” Chuang v. Univ. of Cal. Davis, Bd.
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`of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000) (quotation marks omitted).
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`a. Prima facie case
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`For purposes of its pending motion for summary judgment, Intel does not dispute the first
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`three elements of Tsur’s prima facie case. Intel does, however, dispute the fourth element, that
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`Tsur was discharged under circumstances that give rise to an inference of discrimination.
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`“An inference of discrimination can be established by showing that the employer had a
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`continuing need for the employees’ skills and services in that their various duties were still being
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`performed or by showing that others not in their protected class were treated more favorably.”
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`Diaz, 521 F.3d at 1207-08 (cleaned up). Employees can use circumstantial evidence to “lead
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`reasonable jurors to draw an inference of age discrimination.” Id. at 1208. Statistical evidence
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`that a disparity between older and younger workers hired during a certain period, for example,
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`could give rise to an inference of discrimination if that disparity is “so stark as to suggest bias
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`rather than pure chance.” See id. at 1209. Additionally, “evidence that a group of younger and
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`PAGE 15 – OPINION AND ORDER
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`Case 3:21-cv-00655-SI Document 86 Filed 12/29/22 Page 16 of 43
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`comparably or less-qualified employees assumed the plaintiff’s responsibilities is sufficient.” Id.
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`at 1211. Finally, courts in the Ninth Circuit “treat the last [fourth] element of the prima facie case
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`with flexibility.” Id. (quotation marks omitted).
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`Intel asserts that Tsur improperly relies on Jones’s allegedly offensive age-related
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`statements made in 2011 and 2012. Intel notes that these purported statements are
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`uncorroborated, but argues that even if Jones made these statements, they do not give rise to an
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`inference of age discrimination because they are untimely and were not “tied to” an adverse
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`action. Intel cites Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918-19 (9th Cir. 1996), and
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`White v. Bolden, 2017 WL 8793863, at *4 (C.D. Cal. Oct. 18, 2017), to support the latter
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`argument.
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`Intel’s arguments are