Bahri v. Home Depot USA, Inc. (242 F. Supp. 2d 922, 2002)

United States District Court for the District of Oregon 2002-12-18

Citations

Full opinion text

OPINION

STEWART, United States Magistrate Judge.

INTRODUCTION

Plaintiffs, Sean Bahri (“Bahri”), Dan Florea (“Florea”), Barbara Nelson (“Nelson”), Victor Roberge (“Roberge”), Melvin Espen (“Espen”), William Toles (“Toles”), Daphne Dalthorp (“Dalthorp”), and Stephen Galas (“Galas”), are former employees of defendant, Home Depot USA, Inc. (“Home Depot”). All plaintiffs worked in Home Depot’s store in Tigard, Oregon (“the Tigard store”). They allege that after Scott Lundervold (“Lundervold”) became the Store Manager of the Tigard store in July 1999, they were subjected to unlawful discrimination and retaliation based on their age and/or gender. The thrust of their allegations is that Lunder-vold sought to cut costs by eliminating older, higher paid workers. Plaintiffs allege that one of the Assistant Store Managers at the Tigard store, Robert Brownlie (“Brownlie”), shared Lundervold’s desire to oust older workers and also subjected Nelson to gender-based harassment and discrimination, as explained in more detail below.

On August 8, 2002, this court granted Dalthorp’s Unopposed Motion to Dismiss (docket # 141) and dismissed her claims with prejudice. See Minute Order (docket # 142). In the Third Amended Complaint, all remaining plaintiffs allege a claim (First Claim for Relief) for age discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 USC § 623(a) and ORS 659.030(l)(a) and (b). Plaintiff Nelson alleges a separate claim (Second Claim for Relief) for sexual harassment and sex discrimination under Title VTI of the Civil Rights Act of 1965 (“Title VII”), 42 USC § 2000e-2 and ORS 659.030(l)(a) and (b). All remaining plaintiffs except Toles allege an additional claim (Third Claim for Relief) for retaliation in violation of ORS 659.030(l)(f) and the ADEA, 29 USC § 623(d), or Title VII, 42 USC § 2000e-3. Finally, all remaining plaintiffs except Espen and Toles allege a claim (Fourth Claim for Relief) for wrongful termination under Oregon law.

This court has jurisdiction over plaintiffs’ ADEA and Title VII claims pursuant to 28 USC § 1331, and supplemental jurisdiction over plaintiffs’ state law claims under 28 USC § 1367(a). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c).

Home Depot filed motions for summary judgment against the claims of plaintiffs Bahri (docket # 109), Florea (docket # 105), Nelson (docket # 101), Galas (docket # 113), Espen (docket # 150), and Roberge (docket # 154). On October 7, 2002, this court ruled on all of the above motions. See Order (docket # 201). This Opinion provides the reasons for those rulings.

ANALYSIS

I. Factual Background

Home Depot operates a number of home improvement stores in Oregon. This case involves allegations of age and gender discrimination and retaliation at the Tigard store. Four of the plaintiffs (Bahri, Flo-rea, Nelson, and Galas) worked in the Kitchen and Bath (“K & B”) Department in the Tigard store between August 1997 (Bahri Aff., ¶ 4) and December 2000 (Plaintiffs’ Facts, ¶ D1 (Galas termination)). Espen worked at the Tigard store from March 1998 to April 2001, and was a sales associate in the Millworks department for all but the first five weeks of that time. Roberge worked in a variety of departments at the Tigard store between March 1997 and August 2000. Lundervold began working for Home Depot on May 23, 1994, and became the Store Manager of the Tigard store on July 1,1999.

The parties have submitted detailed factual statements. However, plaintiffs have opposed virtually every fact in Home Depot’s fact statements. Additionally, Home Depot in turn opposed and moved to strike virtually every statement in the affidavits supporting plaintiffs’ fact statements, and plaintiffs moved to strike the Lundervold’s affidavit filed on August 1, 2002. In previous Orders, this court ruled on the motions to strike portions of the affidavits of Bahri, Florea, Nelson, Galas, Robert Co-zad, Don Gibson, Leo Jerman Roberge, and Espen, and allowed plaintiffs to file a surreply concerning the statistical evidence contained in the Lundervold Reply Affidavit. Opinions and Orders dated August 27, 2002 (docket # 158) and October 7, 2002 (docket # 200).

Because each plaintiff relies on evidence from other plaintiffs to support his or her claims, this court addresses that evidence below as it relates to each plaintiffs claims.

II. Summary Judgment Standard

FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party does so, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id at 324, 106 S.Ct. 2548. 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, 180 F.3d 1047, 1054 (9th Cir.1999). A “ ‘scintilla of evidence,’ or evidence that is ‘merely colorable’ or ‘not significantly probative,’ ” does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert denied, 493 U.S. 809, 110 S.Ct. 51, 107 L.Ed.2d 20 (1989) (emphasis in original) (citation omitted).

The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631-32 (9th Cir.1987). The court must view the inferences drawn from the facts “in the light most favorable to the nonmoving party.” Id at 631 (citation omitted). Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id at 630-31. However, when the non-moving party’s claims are factually “implausible, that party must come forward with more persuasive evidence than would otherwise be [required] .... ” California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987), cert denied, 484 U.S. 1006, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988) (emphasis in original) (citation omitted). The Ninth Circuit has found, “No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment.” Id.

III. Age Discrimination Claim by all Plaintiffs (First Claim)

Each of the seven plaintiffs alleges a claim for age discrimination in violation of the ADEA and ORS Chapter 659. For the reasons that follow, each of Home Depot’s motions for summary judgment against the First Claim are denied.

A. Legal Standard

1. Order of Proof

The ADEA makes it unlawful for an employer to hire or discharge any individual or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual’s age. 29 USC § 623(a)(1). Protection under the ADEA extends to all individuals who are at least 40 years old. 29 USC § 631(a). Oregon law also prohibits age discrimination, but extends protection to individuals over the age of 18. ORS 659.030(l)(a) & (b).

The Ninth Circuit analyzes ADEA cases using the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141-42, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (collecting cases from other circuits); Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir.1996), cert denied, 522 U.S. 950, 118 S.Ct. 369, 139 L.Ed.2d 287 (1997). Under the three-part methodology articulated in McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination. The burden of production then shifts to the defendant to articulate a legitimate, nondiseriminatory reason for the adverse employment action. The plaintiff is then afforded an opportunity to demonstrate that the employer’s proffered reason was 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.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (“Burdine ”).

Although Oregon courts analyzing claims under ORS Chapter 659 have rejected the McDonnell Douglas burden-shifting approach, Callan v. Confederation of Oregon Sch. Adm., 79 Or.App. 73, 717 P.2d 1252 (1986), that approach nonetheless applies to the assessment of Oregon employment discrimination claims brought in federal court. Snead v. Metropolitan Prop. & Cas. Ins. Co., 237 F.3d 1080 (9th Cir.), cert denied, 534 U.S. 888, 122 S.Ct. 201, 151 L.Ed.2d 142 (2001); Williams v. Federal Express Corp., 211 F Supp 2d 1257, 1261 (D.Or.2002).

2. Prima Facie Case

Numerous cases require a plaintiff to establish & prima facie case of disparate treatment discrimination by showing that he or she: (1) belonged to a protected class; (2) was satisfactorily performing his or her job or was qualified for hire; (3) was terminated, rejected for employment, or otherwise subjected to an adverse employment action; (4) which took place under, circumstances giving rise to an inference of unlawful discrimination. See, e.g., O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996); McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Chuang v. University of Calif. Davis, 225 F.3d 1115, 1123 (9th Cir.2000); Nidds, 113 F.3d at 917; Washington v. Garrett, 10 F.3d 1421, 1433-34 (9th Cir.1993). Oregon’s standard for establishing a prima facie case of discrimination is identical to that under federal law. Henderson v. Jantzen, Inc., 79 Or.App. 654, 657, 719 P.2d 1322, 1324, rev denied, 302 Or. 35, 726 P.2d 934 (1986).

a. Satisfactory Job Performance

The parties in this case have a fundamental disagreement over what is required to prove the second element of a prima facie case of disparate treatment discrimination. Home Depot insists that several of the plaintiffs were not satisfactorily performing their jobs based on documentary evidence of verbal and written reprimands and performance evaluations. Based on that evidence, Home Depot seeks summary judgment against the disparate treatment claims of several plaintiffs. The unspoken premise of this argument is that in order to establish a prima facie case, plaintiffs must establish that they were satisfactorily performing their jobs at all times.

While this court recognizes that the Ninth Circuit includes proof of satisfactory job performance as the second prima facie element, such proof need not include a flawless personnel file at all times during employment. It would be fundamentally unfair to require plaintiffs to show that their employment flies were devoid of negative reviews and write ups after illegal discrimination was interjected into their workplace particularly where, as here, plaintiffs allege that the discrimination manifested itself in unjustified warnings and unjustifiably low performance evaluation rankings. .In short, the second element of the prima facie case makes sense only when it is limited to the time period prior to the introduction of the alleged unlawful discrimination.

Innumerable cases reiterate that the burden of establishing a prima facie case “is not onerous,” Burdine, 450 U.S. at 253, 101 S.Ct. 1089; Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420 n. 1 (9th Cir.1990), and at the summary judgment stage requires only “minimal” proof which “does not even need to rise to the level of a preponderance of the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994), citing Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987), cert denied, 498 U.S. 939, 111 S.Ct. 345, 112 L.Ed.2d 309 (1990). Legions of cases also indicate that the elements of a prima facie case mut be adapted to fit the particular case. See, e.g., Burdine, 450 U.S. at 253-54, 101 S.Ct. 1089 n. 6; McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817 n. 13 (noting that prima facie proof required may vary in differing factual situations); Gay v. Waiters’ and Dairy Lunchmen’s Union, Local No. 30, 694 F.2d 531, 550 (9th Cir.1982) (“We have repeatedly emphasized that proof of the four McDonnell Douglas criteria is not the only way to establish a prima facie case of disparate treatment, and that the McDonnell Douglas approach is to be applied flexibly”). Requiring a plaintiff to prove that he or she was free from job criticisms when allegedly being subjected to unlawful discrimination in the form of unjustified job criticism defies logic and flies in the face of this “minimal” and “flexible” burden.

Moreover, the Supreme Court observed six years ago that “[a]s the very name ‘prima facie case’ suggests, there must be at least a logical connection between each element of the prima facie case and the illegal discrimination for which it establishes a ‘legally mandatory, rebuttable presumption.’” O’Connor, 517 U.S. at 311—12, 116 S.Ct. 1307, quoting Burdine, 450 U.S. at 254, 101 S.Ct. 1089 n. 7. The Court emphasized that the relevant inquiry under the ADEA is whether the employee has suffered adverse action “because of his age.” Id at 312, 101 S.Ct. 1089 (emphasis in original). Because “there can be no greater inference of age discrimination (as opposed to ’40 or over’ discrimination) when a 40-year-old is replaced by a 39-year-old than when a 56-year-old is replaced by a 40-year-old,” the Court modified the prima facie case for an ADEA plaintiff by eliminating the requirement that he or she be outside the protected class. Id. The same logic exemplified in O’Connor mandates that the second element of the prima facie case be modified to apply to that period before plaintiff alleges that he or she was subjected to unlawful discrimination.

Thus, this court declines to accept Home Depot’s suggestion that proof of satisfactory job performance at all times is a necessary element of plaintiffs prima facie case. Instead, the plaintiff simply must establish satisfactory job performance pri- or to the introduction of the allegedly unlawful discrimination.

b. Adverse Employment Action

The Ninth Circuit has made clear “only non-trivial employment actions that would deter reasonable employees from complaining about Title VII violations will constitute actionable retaliation.” Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.2000), citing Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir.2000). Examples of sufficiently “adverse” employment actions include “termination, dissemination of a negative employment reference, issuance of an undeserved negative performance review and refusal to consider for promotion.” Id. (footnote and citations omitted). In contrast, “declining to hold a job open for an employee and badmouthing an employee outside the job reference context do not constitute adverse employment actions.” Id. at 928-29 (footnote and citations omitted). Similarly, “ostracism suffered at the hands of coworkers cannot constitute an adverse employment action.” Id. at 929, citing Strother v. Southern Cal. Permanente Med. Group, 79 F.3d 859, 869 (9th Cir.1996).

c. Inference of Discrimination

An inference of discrimination can be established either by showing that the employer had a continuing need for the plaintiffs skills and services in that his various duties were still being performed, or by showing that substantially younger employees were treated more favorably. O’Connor, 517 U.S. at 312-13, 116 S.Ct. 1307; Nidds, 113 F.3d at 917.

Where the adverse employment action is a termination, a plaintiff may meet this requirement by showing that the employer had a continuing need for plaintiffs skills and services and plaintiffs various duties were still being performed by others after plaintiffs discharge, Rose, 902 F.2d at 1421, or by showing that the plaintiff was replaced by an individual outside the protected class with equal or inferior qualifications. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir.2000); Jones v. Los Angeles Cmty. Coll. Dist., 702 F.2d 203, 205 (9th Cir.1983).

3. Rebutting Employer’s Proffer of Nondiscriminatory Reason

“Establishment of a prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee.” Wallis, 26 F.3d at 889. Once plaintiff has established a prima facie case, the burden of production shifts to the defendant to rebut the presumption of discrimination by articulating some permissible reason for the adverse action. Id. “Once the defendant fulfills this burden of production by offering a legitimate, nondiscriminatory reason for its employment decision, the ... presumption of unlawful discrimination ‘simply drops out of the picture.’ ” Id., citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). At that point, a plaintiff can avoid summary judgment simply by producing evidence which raises a genuine issue of material fact regarding the truth of the employer’s proffered reasons:

As the Supreme Court recently reaffirmed, a disparate treatment plaintiff can survive summary judgment without producing any evidence of discrimination beyond that constituting his prima facie case, if that evidence raises a genuine issue of material fact regarding the truth of the employer’s proffered reasons .... While the plaintiff always retains the burden of persuasion, ... he does not necessarily have to introduce “additional, independent evidence of discrimination” at the pretext stage.

Chuang, 225 F.3d at 1127, quoting Reeves, 530 U.S. at 149, 120 S.Ct. 2097, and citing St. Mary’s Honor Ctr., 509 U.S. at 511, 113 S.Ct. 2742 (additional citations omitted).

Specifically, the plaintiff simply must produce enough evidence to allow a reasonable factfinder to conclude either that: (a) a discriminatory reason more likely motivated the employer or (2) the employer’s proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256, 101 S.Ct. 1089; Nidds, 113 F.3d at 918. If the plaintiff offers direct evidence of discriminatory motive, a triable issue on the actual motivation is created “even if the evidence is not substantial.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.1998). The plaintiff may also offer circumstantial evidence that tends to show that the proffered motive is a pretext because it is inconsistent or unbelievable. Id at 1222. The Supreme Court has clarified that “because a prima facie case and sufficient evidence to reject the employer’s explanation may permit a finding of liability, [a court may not proceed] from the premise that a plaintiff must always introduce additional, independent evidence of discrimination.” Reeves, 530 U.S. at 149, 120 S.Ct. 2097.

B. Kitchen Designers (Nelson, Flo-rea, Bahri, & Galas)

1. K&B Department

The K&B Department at the Tigard store employs a number of Sales Associates, some of whom are assigned to “aisle sales” and some of whom are assigned as Kitchen Designers. See Plaintiffs’ Facts, 1HIP1-P6. When Lundervold became the Store Manager of the Tigard store on July 1, 1999, Home Depot employed Bahri, Flo-rea, Galas, and Nelson as Kitchen Designers in the K&B Department. Lunder-vold Reply Aff., ¶¶ 1, 4-5. All were age 40 or over. Bahri had worked in that department since August 1997, Galas since January 1999, Florea since February 1999, and Nelson since June 1999. Plaintiffs’ Facts, ¶¶ B4, C2, D2, E2.

Brownlie was employed as one of the Assistant Store Managers at the Tigard store. Shortly after Lundervold became the Store Manager, he assigned Brownlie to be the Assistant Store Manager over the K&B Department. Others supervised the K&B Department as well, including Tony Gift (“Gift”), Amy Craven (“Craven”), and Eric Gershoffer (“Gershof-fer”). Defendant’s Facts (Nelson), ¶ 2.

Home Depot terminated Florea on January 10, 2000 (at age 53), Nelson on February 10, 2000 (at age 50), Bahri on April 6, 2000 (at age 45), and Galas on Decern-ber 3, 2000 (at age 41). Brownlie was eventually transferred out of the Tigard store and then back into the Tigard store, where he was demoted to a sales associate position due to the complaints by associates and documented performance issues. Sanford Depo., pp. 92-93.

a. Nelson

Nelson was first employed by Home Depot on or about June 12, 1999 as a Sales Associate assigned to be a Kitchen Designer in the K & B Department at the Tigard store. Prior to that employment, Nelson had 25 years experience in the field of kitchen design, including working as a Design Master at another company. Nelson Aff., ¶ 2. She was a Certified Kitchen Designer (“CKD”) through the National Kitchen and Bath Association (“NKBA”), of which Home Depot is a member. Id.

Nelson’s first few months of employment passed without incident. Nelson believes that prior to Lundervold becoming the Store Manager, she was treated fairly, given fair performance evaluations, and scheduled for the training necessary to succeed in her job. Id., ¶ 4. Once Lunder-vold was hired in July 1999, Nelson’s training on the 20/20 computerized design system was cancelled; she was micromanaged, unfairly counseled, disciplined, and was required to sign a sales quota that no one else was required to sign. Id.

Brownlie repeatedly called Nelson “mis-sy,” and referred to female employees as his “girls.” Id., ¶ 6(a). Brownlie also yelled in Nelson’s face; ordered her into his office for no reason; belittled her experience in design, ideas, and suggestions; and repeatedly made unwelcome comments about her style of dress, hair, shoes, and alleged relationship with Galas. Id., 1Í 6(a)-(c). Nelson continuously complained about the harassment. After complaining, she was falsely accused of having an excessive number of mispunches on her time cards. Id., ¶ 10.

Between October and December 1999, Nelson received verbal and written warnings for not wearing her apron, missing punches on the time clock, and making personal use of the company telephone. Hanchett Aff. (Nelson), Ex. A, pp. 19-22. In December 1999, Nelson received an overall rating of a 2 on her performance evaluation. Id. at 23-27. She received additional written warnings on January 27 and February 5, 2000, and was terminated on February 10, 2000 for “Attendance / Punctuality” problems. Id. at 28-31.

b. Florea

Florea began working as a Kitchen Designer in the K & B Department at the Tigard store on February 8, 1999. Florea Aff., ¶2. Prior to his employment with Home Depot, he had 30 years of experience in the construction field, with an emphasis on kitchen design work, including retail experience and running his own remodeling company. Id.

At the time he was hired, Home Depot agreed that Florea would be able to periodically take time off with advance notice to the Department Head (Hanchett Aff. (Florea), Ex. A, p. 23), including two weeks off in January 2000 to travel to South Africa. Florea Depo., pp. 100, 104. When Florea initially began his job with Home Depot, he worked full time. However, some time in 1999, he cut his hours back to 25 or 30 per week. He reported to Department Heads Gershoffer or Gift and his hours were scheduled by Hillary Thomas. His duties included customer follow-up and dealing with vendors.

On July 5,1999, Gift completed a performance appraisal regarding Florea. Plaintiffs’ Ex. 31. His rankings in that performance appraisal were all 4 and 5, and his overall ranking was 4, indicating that he had completed about 75% of his Development Plan.

After Lundervold became the Store Manager, Florea was micromanaged, had his performance unfairly criticized, received unjustified counselings and discipline, and received a lower performance review which reduced his merit-based pay raise; he also was falsely accused of badmouthing Home Depot products, talking about his religion, and violating company policy by talking about his wages. Florea Aff., ¶¶ 9-12.

On September 16, 1999, Florea received two written warnings, one for discussing religion on the sales floor, and one for making disrespectful comments about the products of a Home Depot vendor, American Woodmark. Hanchett Aff. (Florea), Ex. A, pp. 22, 29. However, shortly after Florea began working at Home Depot, Gershoffer told the entire K & B Department not to sell the products of American Woodmart. Florea Depo., p. 85.

In late December 1999, Florea complained to Lundervold about Nelson being harassed and discriminated against. Flo-rea Aff., ¶ 6. Lundervold responded that he was “getting rid of that overpaid cunt.” Id.

Brownlie, Gershoffer and all the other employees in the K & B Department were aware that Florea planned to take two weeks off in January 2000 to travel to South Africa. Florea Depo., p. 104. However, on December 27, 1999, Lundervold told him he could not take vacation time in January 2000 and Florea responded by losing his temper. Florea Aff., ¶ 7; Plaintiffs’ Ex. 37.

On December 29, 1999, Craven and Gershoffer completed another performance appraisal of Florea. The bulk of the rankings in that performance appraisal were 2 and 3 and the overall ranking was 3, indicating that he had completed about 50% of his Development Plan.

In January 2000, Bahri was approached by management seeking negative information on Florea’s job performance. Bahri Aff., ¶ 5. Bahri was never approached by management for information on younger Home Depot employees. Id.

Home Depot terminated Florea on January 10, 2000, based on the verbal and written warnings he had received and complaints about his behavior from coworkers.

c. Bahri

In January 1996, Bahri began working as a Sales Associate assigned to the Lumber Department at the Tigard store. Bah-ri Aff., ¶2. Prior to working for Home Depot, Bahri received a degree in Civil Engineering from the University of Texas, a Building Construction Certificate from the NR1 School of Building Construction, and design training from the Clackamas Drafting School. In Ms previous employment, he had good worMng relationships with his coworkers, supervisors, and customers, and received good performance reviews and merit-based pay raises. Id.

Around August 1997, Bahri was transferred to a Kitchen Designer position in the K & B Department. In 1998, Bahri informed then Store Manager, Joe Bona-ventura (“Bonaventura”), that he wanted to become a CKD. Bahri Depo., p. 36. Bonaventura approved Bahri’s reimbursement request for the materials, books, and manual necessary to earn the certificate. Plaintiffs’ Ex. 29.

Bahri contends that for the three and a half year prior to Lundervold’s arrival at the Tigard store, he had been doing well at Home Depot, received strong performance evaluations, enjoyed merit-based pay raises, and was not disciplined. Shortly after Lundervold arrived, however, Bahri’s design responsibilities were reduced and Brownlie was assigned to be the Assistant Store Manager of the K & B Department. Although Bahri’s design responsibilities were restored when he complained, Bahri contends that his performance was micromanaged and that he was criticized for minor things that previously had gone unmentioned, such as not punching out for lunch. Bahri Depo., pp. 97-98.

Bahri repeatedly complained to upper management about being harassed and discriminated against. Bahri Aff., ¶ 7. By September 1999, Bahri began looking into a transfer to Home Depot’s Clackamas store. Bahri Depo., p. 62. He sought that transfer in order to escape from Lunder-vold’s discriminatory treatment and retaliation. Bahri Aff., ¶ 4. He continued to seek a transfer up until his termination. At some point, Bahri contacted Steven Sanford (“Sanford”), one of five Divisional Human Resources Managers in Home Depot’s Northwest Division, and told him he wanted to be transferred out of the Tigard store. Sanford Depo., pp. 6, 44.

Bahri testified that Lundervold made it “pretty clear” that Home Depot was intent on cutting costs by replacing higher-paid employees with younger, less costly workers. Bahri Depo., p. 89. Bahri bases this assessment on actions taken and comments made by Brownlie at Lundervold’s direction. Id. at 89-90. During Bahri’s annual performance review in December 1999, Brownlie told Bahri there was “no future” for Bahri at Home Depot in terms of making more money because Bahri had been there four years and had not once been interviewed for promotion. Id. at 92. He also told Bahri that Home Depot could hire two employees for what it was paying Bahri. Id. at 90. Consistent with this theme, Bahri also asserts that he received a lesser raise than he had received from Lundervold’s predecessors.

Some time in the summer of 1999, Bahri approached Lundervold about taking the CKD examination and got a “positive” response. Id. at 40. The next CKD examination was scheduled for March 25, 2000. In mid-February 2000, Bahri learned that there was a local Home Depot-supported training program for the CKD examination. By that time, however, he was only able to take two of the approximately ten courses. Id. at 41-50. Shortly thereafter, in late February 2000, he spoke to Lunder-vold about the examination and Lunder-vold told him he could not sit for the examination because he had not taken Home Depot’s local training program. Id. at 41. Bahri responded that he intended to take his two days off and take the examination. Id. at 60.

Bahri spoke with Fitzgibbon and Midg-ley who agreed that he should have some time off prior to the examination to prepare. They approved a schedule change which gave Bahri four days off from March 22-25, 2000. Both approved the time off and made necessary scheduling changes. However, Bahri would come back into work the next day and discover the schedule was changed back. Bahri Depo., pp. 65-66.

On March 25, 2000, Bahri traveled to Seattle, Washington, and took the CKD examination. Bahri Depo., p. 61. The following day, he reported to work at Home Depot, but was sent home for two days as a purported “layoff.” Id. at 91. The next day, Lundervold called and told Bahri that he was not going to be allowed to transfer to another store because he had taken two extra days off for the CKD examination and that his reimbursement for expenses request was denied. Id. at 64, 67; Plaintiffs’ Ex. 30, p. 1. Sanford testified that Lundervold told him that he would not approve the transfer to another store until he and Bahri had resolved some concerns Lundervold had about CKD training. Sanford Depo., p. 44.

On March 31, 2000, Lundervold sent Bahri a letter stating that his request for a transfer to another store and his request for reimbursement of expenses for the CKD examination were denied. Plaintiffs’ Ex. 30. The letter also advised Bahri that he was “still listed as an active associate” and that if he “wish[ed] to retain [his] position,” he should report to work on April 6, 2000, and that failure to do so would “be considered job abandonment and [that his] employment [would] then be terminated.” Id.

Bahri never returned to work at Home Depot.

d. Galas

Galas began working for Home Depot in January 1999. Galas had over 15 years of experience in the field of architectural home design, including designing and installing kitchens on a commission basis for Home Depot off and on between 1977 and 1995, and training and education in the field of architecture. Galas Aff., ¶ 2. Galas worked in the Plumbing Department for approximately a month and a half, and then moved to the K & B Department, where he was assigned as a Kitchen Designer. Id.

Galas’ “New Associate Review,” dated April 29, 1999, indicated a “solid performance” in all categories, including customer cultivation, willingness to learn, showing work commitment, and getting along with others. Plaintiffs’ Ex. 33. His July 5, 1999 Performance Appraisal, completed by Gift and Craven, rated Galas’s overall performance as 3, and, with one exception for the category of “striving to be the best,” rated Galas’ performance in all other specific categories as 3 or 4. Plaintiffs’ Ex. 34.

Prior to Lundervold becoming the Store Manager, Galas believes that he was treated fairly. Id. ¶ 3. In addition to his solid performance reviews, was allowed the freedom to do his job, was not micromanaged and unfairly criticized, and was not disciplined. Id. After Lundervold arrived, Galas believes he was treated differently and discriminated against on the basis of his age by being micromanaged, having his performance unfairly criticized, receiving unjust counselings and discipline, and being falsely accused of poor customer service, altercations with coworkers, and trying to funnel customers away from Home Depot. Id.

Galas received warnings or counselings on: (1) July 4, 1999 (written warning) for tardiness, alleging that Galas was scheduled to begin working at 8:30 a.m., but did not appear until 10:15 a.m.; (2) October 11, 1999 (verbal warning) for working unauthorized overtime; (3) October 18, 1999 (written warning) for not working a scheduled shift; and (4) November 8, 1999 (counseling) for working unauthorized overtime and not working a scheduled shift. O’Connor Aff. (Galas), Ex. A, pp. 36-39.

Galas’ next Performance Appraisal dated December 19, 1999, still rated his overall performance as 3, but rated his performance in the areas of satisfying a customer, and striving to be the best, being a team player as 2, and decreased his rating from 4 to 3 in the categories of sharing information, stress tolerance, and active listening. Plaintiffs’ Ex. 34; of. O’Connor Aff. (Galas), Ex. A, pp. 31-35.

In 1999 and early 2000, Galas complained about sex discrimination against Nelson and other female employees by Brownlie, including Brownlie’s constant telling of inappropriate sexual jokes in the workplace, singling Nelson out for counseling and discipline, and terminating Nelson for false and pretextual reasons. Galas Aff., ¶ 6. After those complaints, Galas was further disciplined and harassed about his relationship with Nelson. Id., ¶ 7. His performance rankings decreased at his next review, and as a result, he received a lesser merit-based pay increase: Id.

Galas received additional warnings or counselings on: (1) March 9, 2000 (verbal and written warnings) for tardiness, claiming that between March 1 and 5, 2000, Galas was late every day; (2) April 5, 2000 (Performance Notice) for a pattern of tardiness; (3) April 8, 2000 (counseling) for poor customer service; and (4) June 5, 2000 (written warning) for missing a mandatory meeting. O’Connor Aff. (Galas), Ex. A, pp. 40-43. Approximately three weeks after the last of these warnings, Galas received a Performance Appraisal dated June 20, 2000, which ranked his overall performance at 2, and decreased his rankings in the areas of active listening and judgment from 3 to 2. O’Connor Aff. (Galas), Ex. A, pp. 31-35; of. Ex. B, pp. 1-5.

The next series of warnings and counselings documented by Home Depot include a(n): (1) August 25, 2000 counseling for poor customer service; (2) October 9, 2000 Performance Notice for failure to correct attendance and punctuality problems; (3) November 6, 2000 Performance Notice and verbal warning for poor customer service; and (4) November 26, 2000 written complaints by coworkers for responding inappropriately to a coworker’s question. O’Connor Aff. (Galas), Ex. A, pp. 28-30, 44, Ex. C.

After Florea, Nelson, and Bahri were terminated, Galas believed he was being deliberately targeted for termination. Despite the stress imposed by that realization, he remained among the top three for sales in the district throughout the remainder of his employment. Galas Aff., ¶ 8. Galas flatly denies Home Depot’s accusations that he lied about his qualifications when applying to Home Depot and the CKD examination, tried to funnel customers away from Home Depot, had altercations with coworkers, and was late, had more time clock violations, or made more mistakes than any other Home Depot employee. Id., ¶¶ 9,11-12,16.

e. Evidence Regarding Other Home Depot Emplogees

Apart from the named plaintiffs, other Home Depot employees who worked at the Tigard store at the same time also complained about treatment by Brownlie.

Lauritz Pillers (“Pillers”) was first employed by Home Depot in March 1994 as a clinic instructor at the Tigard store. In that role, he ran clinic classes for Home Depot employees and customers. He often prepared class teaching materials at home, using old equipment and salvaged materials from Home Depot which he had permission from management to take home for this purpose. Pillers Depo., pp. 43, 97-98. After Lundervold became the Store Manager, Pillers initially received excellent performance reviews, consistent with his previous reviews. Plaintiffs’ Exs. 41-42. However, Home Depot management, including Lundervold, repeatedly asked Pillers about when he was going to retire. Id. at 6-7,10-13.

In November 2000, Pillers refused to disclose his retirement date to Lundervold. Pillers Depo., pp. 6-7. Prior to his performance review on March 23, 2001, and in response to an Assistant Store Manager’s question about when he was going to retire, Pillers again refused to disclose his retirement date. Id. at 6. Later that same day, Pillers was investigated and told he was terminated for alleged “theft.” Plaintiffs’ Ex. 44. Pillers maintains that the items he was accused of stealing were taken for teaching purposes with the knowledge and consent of management. Pillers Depo., pp. 43, 97-98.

Marietta Durst (“Durst”), who worked in the Paint Department at the Tigard store, was treated differently than her younger coworkers and asserts that Brownlie (who also supervised the Paint Department) harassed her on the basis of her age and gender. Durst Aff. ¶ 2. In July 1999, Durst telephoned Home Depot’s “Alertline” and complained about the treatment she was being subjected to by Brownlie. Id. ¶ 3; Plaintiffs’ Ex. 54; Sanford Depo., p. 80. Because Brownlie’s harassment did not stop, Durst resigned in February 2000. Durst Aff. ¶ 1.

Don Gibson (“Gibson”) worked as a Sales Associate at the Tigard store between March 18, 1998, and August 20, 1999. During that time, he worked with Nelson, Florea, Bahri, Roberge, and Toles on a regular basis. Gibson Aff., ¶ 2. Gibson was terminated on August 20, 1999, at the approximate age of 50. Id., ¶ 8. In late September 1999, Gibson placed a call to the Home Depot “Alertline” and sent a written complaint to Home Depot’s headquarters in Atlanta, Georgia. Sanford Depo., pp. 80-81. During the course of Sanford’s investigation of those complaints, Gibson told Sanford that he believed that he had been subjected to repeated instances of abuse and harassment by Brownlie. Gibson either told Sanford, or stated in his written complaint, that the abuse and harassment was because of Gibson’s age. Id. at 82. Sanford is sure he probably told Lundervold about Gibson’s complaints. Id. at 83.

2. Prima Facie Case

a. Adverse Employment Action

Home Depot argues that Bahri suffered no adverse employment action because he was not discharged, but instead abandoned his job. Bahri counters that he did not abandon his job, but was constructively discharged.

A constructive discharge “occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become ‘sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.’ ” Brooks, 229 F.3d at 930, quoting Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 1246, 32 Cal.Rptr.2d 223, 876 P.2d 1022, 1026 (1994) (summarizing Ninth Circuit cases) (remaining citations omitted). A plaintiff seeking to pursue such a claim must show that he or she quit the job “under circumstances in which a reasonable person would feel that the conditions of employment have become intolerable.” Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir.1998), citing Steiner v. Showboat Operating Co., 25 F.3d 1459, 1465 (9th Cir.1994), cert denied, 513 U.S. 1082, 115 S.Ct. 733, 130 L.Ed.2d 636 (1995). Such a claim “usually results from a series of discriminatory actions on the part of the employer that are in the nature of a continuing violation.... In such cases the individual has simply had enough; [he or] she can’t take it anymore.” Id. Constructive discharge may also be found where an employee reasonably believes that his termination is inevitable. See Stephens v. C.I.T. Group/Equip. Fin., 955 F.2d 1023, 1027-28 (5th Cir.1992).

Generally, “a single isolated incident is insufficient as a matter of law to support a finding of constructive discharge.” Sanchez v. City of Santa Ana, 915 F.2d 424, 431 (9th Cir.1990), citing Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir.1987). However, a plaintiff may prove a constructive discharge by showing “ ‘aggravating factors’ such as a ‘continuous pattern of discriminatory treatment.’ ” Satterwhite v. Smith, 744 F.2d 1380, 1382 (9th Cir.1984), quoting Clark v. Marsh, 665 F.2d 1168, 1174 (D.C.Cir.1981); see also Sanchez, 915 F.2d at 431 (citing Satterwhite with approval); Nolan v. Cleland, 686 F.2d 806, 813 (9th Cir.1982) (continuing discrimination provides an aggravated situation sufficient to uphold a constructive discharge finding). The Ninth Circuit has found the requisite “aggravating factors” and “upheld factual findings of constructive discharge when the plaintiff was subjected to incidents of differential treatment over a period of months or years.” Watson, 823 F.2d at 361 (citations omitted). For example, “in Nolan, [the Ninth Circuit] held that a showing of four incidents of differential treatment over a period of two years was sufficient to create a genuine issue of fact for trial.” Id.

Home Depot claims Bahri’s failure to return to work was unreasonable. First, it contends that Bahri only needed to take time off for the CKD examination because he was unprepared and that he could have taken the next examination. Second, it contends that Bahri’s transfer was not denied but was simply delayed because Bahri had taken time off without authorization. And, third, it contends that there is no objective evidence that Bahri deserved more of a raise than he received. Bahri counters that prior to Lundervold becoming the Store Manager, he was treated fairly, received strong performance reviews, was not disciplined, and was given merit-based pay raises. After Lundervold became the Store Manager, he reassigned Bahri to aisle sales (but then cancelled the reassignment upon Bahri’s challenge), gave him a smaller pay raise than he deserved, revoked his transfer to another store, denied him training, and denied him both time off and vacation time in order to study for and take the CKD examination. Bahri complained to at least two Assistant Store Managers and to Sanford at Home Depot’s District Office. Moreover, by the time Bahri and Lundervold locked horns over Bahri taking the CKD examination, Florea and Nelson had already been terminated. In addition, Bahri had been asked to provide negative information about Florea’s job performance.

While one of these incidents in isolation may not be enough to support a constructive discharge claim, when considered together, they could lead a factfinder to conclude that a reasonable person would conclude that returning to work would be an act of futility because Lundervold had already decided to fire Bahri.

Thus, Home Depot’s request for summary judgment against Bahri’s age discrimination claim on the ground that Bahri was not discharged is denied.

b. Satisfactory Job Performance

As discussed above, the second element of a prima facie case requires that plaintiffs show that they were satisfactorily performing their jobs prior to the alleged introduction of discrimination into their workplace. The K & B Department plaintiffs easily satisfy this burden. The New Associate Reviews and/or Performance Appraisals completed prior to or within a few days after Lundervold’s arrival at the Tigard store uniformly rank the K & B Department plaintiffs as “solid” performers who were meeting their job expectations. See, e.g., Hanchett Aff. (Nelson), Ex. A, pp. 17-18 (New Associate Review regarding Nelson dated August 12, 1999, rating her performance as “solid” in all categories); Plaintiffs’ Ex. 31 (Performance Appraisal regarding Florea dated July 5, 1999, giving an overall ranking of 4); Plaintiffs’ Exs. 24, 25, 27 (Performance Appraisals regarding Bahri dated May 9, 1997, January 5, 1998, and July 5, 1999, giving overall rankings of 4); and Plaintiffs’ Exs. 33 and 34 (New Associate Review regarding Galas dated April 29, 1999, rating him as a “solid” performer in every category and Performance Appraisal of Galas dated July 5, 1999, giving overall ranking of 3). This is sufficient to satisfy the “minimal” evidentiary standard applicable to the prima facie case with respect to the element of satisfactory job performance.

c. Inference of Discrimination

Home Depot also argues that all four plaintiffs who worked in the K & B Department have failed to present sufficient evidence to give rise to an inference of unlawful age discrimination. This court disagrees for four reasons.

First, plaintiffs have presented evidence that after Lundervold arrived at the Ti-gard store, a disproportionate number of older workers were terminated and replaced by younger, less experienced workers. Between February 8, 1998, and June 27, 1999, no Kitchen Designers in the K & B Department at the Tigard store were terminated, but between June 28, 1999, and December 31, 2000, at least three (or four including Bahri’s constructive discharge) employees 40 years of age and older were terminated. Plaintiffs’ Facts, ¶¶ P1-P4. This resulted in a considerably younger employee pool in that department. Id at P5-P6.

In addition, plaintiffs point to several new K & B Department hires that followed on the heels of the terminations of Florea, Nelson, and Bahri. Plaintiffs’ Facts, ¶ D14. Home Depot counters that Charles Phillips was hired in the K & B Department in September 1999, well before plaintiffs were terminated and that all of the employees identified by plaintiffs were hired to perform sales and aisle work and were not Kitchen Designers. However, the record reveals that there is some overlap in the job responsibilities of the K & B Department employees. Bahri Depo., p. 34 (“everyone in the department that does selling [does] some kitchen and bath designing”). Moreover, each of the employees identified by plaintiffs indeed appears to have been hired into the K & B Department after August 1, 1999, and appears to have been classified as being in Kitchen Design as of July 2, 2000. Plaintiffs’ Exs. 35, 63. Plaintiffs assert that these employees had no significant prior kitchen design experience and were far less experienced than the K & B Department plaintiffs. Galas Aff., ¶ 15.

Second, plaintiffs have presented evidence of discriminatory comments supporting their theory that Home Depot management was intent on ousting older, higher paid employees in favor of younger, less expensive ones. Some time shortly after Lundervold became the Store Manager, Bahri heard him say that it “take[s] a certain designer to sell kitchen cabinet[s].” Bahri Depo., pp. 77-80. Bahri construed this comment as discriminatory. Following Brownlie’s assignment to the K & B Department, he commented several times that he “could get two people for what we pay you” [or words to that effect]. Florea Depo., pp. 155-56. He made this same statement during Bahri’s performance review, which appears to have taken place on December 19, 1999 (Plaintiffs’ Ex. 28). Bahri Depo., pp. 89-90. He also made a similar comment to Florea. Flo-rea Depo., pp. 177-78.

Third, a significant decrease in the performance evaluation ratings given to the K & B Department plaintiffs followed Lun-dervold’s arrival at the Tigard store. Home Depot argues that this decrease simply indicates plaintiffs’ lackluster and problematic performance. However, an equally plausible explanation is that, following Lundervold’s arrival, the K & B Department plaintiffs were targeted for unjustified work criticisms and lowered performance evaluations because of their age.

Fourth, Espen and Roberge have presented evidence that older workers were viewed as ineligible for promotion. While this evidence does not directly show disparate treatment of the K & B Department plaintiffs, it does support plaintiffs’ overall theory that older workers were not treated as favorably as their younger counterparts. One reasonable inference from the evidence is that, under Lundervold’s guidance, the corporate culture of Home Depot’s Tigard store was to place older workers in a holding pattern at the lowest ranking job justifiable and then systematically terminate them after a course of unjustified reprimands and write ups.

3. Legitimate Nondiscriminatory Reason

Because plaintiffs have presented a prima facie case of age discrimination, the burden of production shifts to Home Depot to present evidence of legitimate, nondiscriminatory reasons for the employment actions it took. Home Depot has met that burden with respect to each of the K & B Department plaintiffs.

Home Depot has presented documentary evidence that Nelson was rude to customers, failed to wear her apron on the sales floor, made personal use of the company telephone, and exhibited repeated time and attendance problems including missed punches on the time clock, working off the clock, not being punctual and failing to take lunches as scheduled, and working unauthorized overtime. According to Home Depot, Nelson was warned, failed to improve, and was fired on February 10, 2000, for lack of punctuality and attendance problems.

According to Home Depot, Florea was a “troublemaker” who made inappropriate comments to vendors, managers, coworkers and customers. This argument is based upon Florea’s alleged acts of: (1) “badmouthing” a Home Depot vendor’s product line in August 1999; (2) violating Home Depot policy by discussing religion with coworkers and customers; (3) lying to his coworkers about his rate of pay; and (4) telling coworkers that Lundervold was unethical, slimy, and could not be trusted, and calling Lundervold profane names when he learned that his request for time off was denied. Home Depot terminated Florea on January 10, 2000, based on previous verbal and written warnings and complaints from coworkers.

Home Depot contends that Bahri abandoned his job by failing to report to work. Failure to report to work constitutes a legitimate, nondiscriminatory reason for terminating an employee.

Finally, Galas was repeatedly and consistently warned about tardiness, working unauthorized overtime, not working scheduled shifts, making personal use of the company telephone, and providing poor customer service. Home Depot fired Galas after receiving three customer complaints about him on a single day.

In sum, Home Depot has proffered evidence which would support the conclusion that the K & B Department plaintiffs were disciplined and eventually terminated for repeated violations of Home Depot policies, complaints from coworkers and customers, time and attendance problems, and (in the case of Bahri) a flat-out refusal to come to work. Those reasons are legitimate and nondiscriminatory and justify the progressive discipline and eventual termination of plaintiffs.

4. Rebuttal of Employer’s Proffered Reasons (Pretext)

Because Home Depot has proffered evidence of legitimate, nondiscriminatory reasons for terminating the K & B Department plaintiffs, the burden shifts back to plaintiffs to demonstrate that a discriminatory reason more likely motivated Home Depot or that the proffered reasons are unworthy of credence. Plaintiffs meet that burden for two reasons.

First, plaintiffs dispute and have offered explanations to counter every criticism by Home Depot as to their job performance issues. Nelson denies that she was rude to customers or provided poor service, explains that she decided to try and put customers first by serving them rather than making them wait while she donned an apron, denies that she used the company telephone any more than any other employee and in fact was on a business call when disciplined, and denies that she had more time and attendance problems than any other employee. Nelson Aff., ¶¶ 7-9, 11. She also questions the accuracy of the time punching system at Home Depot. Nelson Depo., pp. 105-06.

Florea disputes Home Depot’s characterization of the incident involving the vendor, asserts that he only discussed religion when others initiated such conversations and then stopped altogether when he was warned about it, and flatly denies “lying” about his wages to coworkers. Florea Aff., ¶ 12. Although Florea does not dispute that he had conflicts with Home Depot management, he asserts that those conflicts were caused by the discriminatory treatment he received and observed others receiving from Lundervold and Brownlie. Furthermore, Florea points out that his performance was fine until Lun-dervold was hired in July 1999. Id. ¶ 3.

As discussed above, Bahri has presented evidence sufficient to withstand Home Depot’s request for summary judgment against his constructive discharge claim. Moreover, he contends that two Assistant Store Managers approved his four day absence from the Tigard store to prepare for and take the CKD examination for which Lundervold later disciplined him.

Finally, Galas flatly denies trying to funnel customers away from Home Depot, having altercations with coworkers, “lying” on his employment and/or CKD examination applications, taking personal phone calls on the company telephone, being late, having more time clock violations, or making more mistakes than any other K & B Department employee. Galas Aff., ¶ 9,11-12, 16. Like Nelson, he contends that many of the criticisms were generated from his attempts to put customers first. Id. ¶ 10. Although Home Depot argues that Galas’ affidavit contradicts his prior deposition testimony, a review of the affidavit reveals that Galas simply elaborates on and explains his prior testimony.

When viewed in the light most favorable to the K & B Department plaintiffs, a reasonable factfinder could conclude that the bulk of Home Depot’s alleged performance-based complaints had their genesis in the strained relationships caused by discriminatory treatment of the K & B Department plaintiffs. This type of factual dispute bars summary judgment against the discrimination claims of the K & B Department plaintiffs.

Furthermore, plaintiffs have presented evidence from which a reasonable factfin-der could conclude that they were targeted for lower performance evaluations following Lundervold’s arrival at the Tigard store. As discussed above, a review of the New Associate Reviews and Performance Evaluations of the K & B Department plaintiffs reveals that, prior to Lunder-vold’s arrival, plaintiffs’ performance met or exceeded Home Depot’s standards and were without incident. However, a decided decline in the rankings for several plaintiffs occurred following Lundervold’s arrival at the Tigard store.

Nelson’s New Associate Review of August 12, 1999, rated her performance as “solid” in all categories. Hanchett Aff. (Nelson), Ex. A, pp. 17-18. However, by November 10, 1999, her Performance Appraisal rates her overall performance, her product, department, and store knowledge, and judgment, fell to a ranking of 2. Han-chett Aff. (Nelson), Ex. A, pp. 23-27.

Florea’s overall ranking of 4 on July 5, 1999 (Plaintiffs’ Ex. 31) decreased to a 3 by December 23, 1999 (Plaintiffs’ Ex. 32), and his ranking-in virtually every one of the nine specific appraisal categories decreased by at least one score.

Galas was rated as a “solid” performer in every category in a review dated April 29, 1999 (Plaintiffs’ Ex. 33), and was given an overall rating of 3 in his Performance Appraisals of July 5, 1999 (Plaintiffs’ Ex. 34) and December 19, 1999 (O’Connor Aff. (Galas), Ex. A, pp. 31-35), but his overall rating dropped to a 2 in his Performance Appraisal of June 20, 2000. O’Connor Aff., Ex. B, pp. 1-5.

Home Depot contends that the decreases in plaintiffs’ rankings are simply the reflection of ongoing performance problems exhibited by several of the K & B Department plaintiffs. That certainly is one reasonable interpretation of the performance rankings. However, each of the plaintiffs was ranked as providing a “solid” performance or an overall performance of a 3 or 4 prior to Lundervold’s arrival. They all contend that after Lundervold’s arrival, their performance was micromanaged and they were unjustly criticized and written up. Thus, an equally reasonable interpretation of the decrease in rankings is that those rankings constitute not the documentation of legitimate job performance issues, but a paper trail designed to mask discriminatory treatment. See, e.g., Winarto v. Toshiba Am. Elec. Components, 274 F.3d 1276, 1285-86 (9th Cir.2001) (change in comments in performance review following protected activity is evidence of pretext); Ross v. Campbell Soup Co., 237 F.3d 701, 708 (6th Cir.2001) (sudden drop in performance evaluations evidence of pretext); Butler v. City of Prairie Vill, 172 F.3d 736, 752 (10th Cir.1999) (decline in work evaluations within months of protected activity is evidence of pretext).

This court is sympathetic to an employer’s need to document legitimate performance issues, and sensitive to the fact that a reasonable jury may conclude that the decrease in plaintiffs’ performance rankings is the benign product of that process. However, plaintiffs have presented evidence of discriminatory comments, as well as a disproportionate number of involuntary terminations of older employees and a corresponding replacement by younger employees. One reasonable inference from plaintiffs’ combined submissions is that Lundervold targeted older workers for termination and then systematically carried out a plan of replacing those older, higher paid workers with younger, less costly workers. Thus, this court concludes that the K & B Department plaintiffs have presented evidence sufficient to rebut each of the criticisms levied against them by Home Depot and allow a reasonable fact-finder to conclude that the performance issues raised by Home Depot were pretex-tual.

5. Conclusion

Based on the above, this court concludes that the age discrimination claims of Flo-rea, Nelso, Bahri, and Galas survive Home Depot’s motion for summary judgment.

C. Espen

1. Undisputed Facts

Espen began working for Home Depot in March 1998. Espen Aff., ¶2. For all but the first five weeks of his employment with Home Depot, he worked as a full time sales associate in the Millworks Department. His starting pay with Home Depot was $11.00 per hour. Id. When Lunder-vold became the Assistant Store Manager of the Tigard store about a year after Espen was hired, Espen was 52 years old (born in 1947).

Espen alleges that during his tenure with Home Depot, he was paid unfairly and given no opportunity to further his career with Home Depot, because he was denied promotions and training, unjustifiably written up, given inadequate and unfair performance evaluations, and denied requested transfers. Id., ¶¶ 4, 7. On September 18, 2000, Espen filed a complaint with Oregon’s Bureau of Labor and Industries (“BOLI”) alleging discriminatory treatment and retaliation in the form of unfair pay, undeserved performance evaluations, and the denial of training, and opportunity to further his career with Home Depot. Plaintiffs’ Ex. 156.

Espen went on medical leave on April 1, 2001, at age 53 (Espen Aff., ¶ 13), and resigned