In February 2010, Agarwal, a 67–year–old Systems Engineer at Rockwell, was *1124 transferred from San Jose, California, to the company's Wilsonville, Oregon, facility. Agarwal's wife remained in California; Agarwal rented a small apartment in a building near Rockwell's Oregon branch and traveled to San Jose to stay with his family every other weekend.
In June 2010, plaintiff met Agarwal at the gym attached to Agarwal's apartment building. Although he was 38–years–old at the time and not enrolled in college, plaintiff represented himself to be a 25–year–old senior, majoring in analog circuitry at Portland State University (“PSU”), who was looking for employment and had fallen on hard times. After another chance meeting at the gym in July 2010, plaintiff sent Agarwal his resume, which represented that he was a student at PSU with a 3.70 grade point average and an imminent Bachelor of Science degree; Agarwal then forwarded plaintiff's resume to Salim Aswat, Rockwell's Functional Manager.
On August 9, 2010, Aswat interviewed plaintiff. That same day, plaintiff ran into Argawal at the gym. After learning of his successful interview, Agarwal invited plaintiff over to his apartment to celebrate. They drank wine and ate dinner while plaintiff told Agarwal more about his financial difficulties and family struggles; plaintiff ultimately stayed the night at Agarwal's apartment, despite the fact that Agarwal allegedly made a sexual pass at plaintiff earlier that evening. Plaintiff also spent the following night at Agarwal's apartment, even though Agarwal purportedly made another sexual overture. At some point thereafter, but before he began working at Rockwell, plaintiff moved in with Agarwal.
On August 11, 2010, plaintiff filled out an application for APR Consulting, Inc., (“APR”) a staffing agency contracted by Rockwell to provide short-term hires. On August 15, 2010, plaintiff entered into an employment agreement with APR, pursuant to which plaintiff was to work at Rockwell as a service coordinator.
Plaintiff's first day of work at Rockwell was August 23, 2010. He was assigned an alternating schedule, wherein he worked 36 hours one week and 44 hours the next. Plaintiff was informed by Aswat early in his tenure at Rockwell that he could not work more than the allotted hours absent prior approval.
Plaintiff allegedly experienced inappropriate sexual contact and comments from Agarwal, both at home and at work, between August and September 2010. Nevertheless, plaintiff frequently socialized with Agarwal outside of work during this period, going on hikes, out to dinner, and shopping; plaintiff also cooked several Indian meals for Agarwal in their apartment.
In October 2010, plaintiff allegedly reported to Aswat that Agarwal and another Rockwell employee, Igor Kalish, had engaged in separate instances of offensive behavior while at work; however, he did not describe any physical conduct of a sexual nature. Aswat purportedly told plaintiff he would take care of it and the behavior ceased—in Agarwal's case, both in and outside of work.
In November 2010, Aswat reiterated to plaintiff that he was not authorized to work additional hours or overtime.
In December 2010, plaintiff gave Agarwal a bottle of wine and cookies for Christmas. Around that time, Agarwal began *1125 asking plaintiff to move out of the apartment, as he had grown suspicious that plaintiff was not a PSU student; according to Agarwal, plaintiff was also behaving increasingly rudely and erratically.
In February 2011, plaintiff made a general complaint about the air quality at Rockwell. He neither missed any time from work nor raised the subject again.
In late February or early March 2011, plaintiff had a conversation with Aswat about becoming a permanent Rockwell employee after he allegedly resolved a power supply issue successfully. Aswat, who, like plaintiff and Agarwal, was born in India, purportedly told plaintiff that he would not succeed at Rockwell because it was a white organization. Shortly thereafter, plaintiff developed the belief that someone was sabotaging his work, which he reported to Ron Greenley and Patrick Wan, project managers at Rockwell. He later shared his concerns with Aswat and another Rockwell employee, Joanne Hodges, and requested that his work be kept in a locked area.
In March 2011, plaintiff allegedly reported additional inappropriate behavior to Aswat, this time perpetuated by three different Rockwell employees: Greenley, David Davis, and Tu To. The conversation lasted, only a few seconds and plaintiff did not provide any details. The complained-of conduct subsequently stopped.
At some unspecified time in early April 2011, plaintiff told Terry Zimmerman, the Director of Human Resources, that he worked overtime and was not compensated properly during an alleged discussion about sabotaged parts. On April 14, 2011, Aswat again cautioned plaintiff against working additional or unscheduled hours without prior approval. That same day, plaintiff sent an email to Zimmerman and Debbie Schramm, Rockwell's Principal Programs Manager, about the alleged sabotage, asserting that Greenley and Wan were complicit. Shortly thereafter, the components on one of the boards plaintiff was working on burned up due to faulty wiring. Rockwell had to bring in an out-of-state expert to diagnose the problem. Ultimately, plaintiff's allegations of sabotage could not corroborated via an investigation.
On May 20, 2011, Aswat terminated plaintiff's contractual duties. Plaintiff remained in Agarwal's apartment until early June 2011, despite the fact that Agarwal had vacated the premises, as his lease had expired at the end of the previous month.
On June 22, 2011, plaintiff filed a complaint with Oregon's Bureau of Labor and Industries (“BOLI”), alleging unlawful employment practices by Rockwell. Plaintiff was represented by an attorney—Charese Rohny—during the course of the BOLI investigation, including the filing of the BOLI complaint. On May 21, 2012, after finding insufficient evidence, BOLI provided plaintiff a right-to-sue letter. The U.S. Equal Employment Opportunity Commission (“EEOC”) adopted BOLI's findings.
On August 20, 2012, plaintiff commenced this lawsuit; his initial pleadings were largely duplicative of his BOLI complaint. He filed a first amended complaint (“FAC”) on December 31, 2012, asserting the following claims against Rockwell: (1) unpaid overtime in violation of the Fair Labor Standards Act (“FLSA”) and Or.Rev.Stat. § 653.261; (2) retaliation for reporting unpaid overtime in violation of the FLSA and Or.Rev.Stat. § 653.060; (3) sexual harassment in violation of the Civil Rights Act (“Title VII”) and Or.Rev.Stat. § 659A.030; (4) retaliation for reporting sexual harassment in violation of Title VII and Or.Rev.Stat. § 659A.030; (5) racial/national origin discrimination in violation of Title VII and Or.Rev.Stat. § 659A.030; (6) contractual discrimination in violation of 42 U.S.C. § 1981; (7) retaliation for reporting *1126 air quality issues in violation of Or.Rev.Stat. § 659A.199 and Or.Rev.Stat. § 654.062
[2]; (8) intentional infliction of emotional distress (“IIED”); and (9) defamation. Plaintiff also alleges Oregon common law claims against Agarwal for IIED, battery, and assault.
Thereafter, plaintiff filed several discovery motions and one ex parte motion, as well as two motions to appoint counsel. The Court denied each of plaintiff's discovery motions and advised him that he should not lodge motions ex parte. Concerning plaintiff's requests for pro bono counsel, the Court initially appointed an attorney in May 2013; however, the appointment was terminated within a week. The Court denied plaintiff's subsequent motion to appoint counsel. In September 2013, shortly before his responsive documents were due and deposition was to be taken, plaintiff a faxed request for a continuance due to mental health issues, which the Court granted. In December 2013, the Court lifted the stay and ordered both parties to produce certain documents; the Court also ordered plaintiff to produce himself for a deposition in February 2014 and to answer all questions posed to him by defendants. The Court then denied two additional motions to compel filed by plaintiff.
In March 2014, defendants moved for summary judgment. In April 2014, plaintiff moved for a guardian ad litem; the Court instead ordered the appointment of Darien Loiselle as pro bono counsel. Loiselle conducted the depositions of Aswat, Agarwal, Zimmerman, and Dan Ellis, another project manager at Rockwell, and participated in an unsuccessful judicial settlement with the Honorable John Acosta. In March 2015, the Court granted Loiselle's motion to withdraw and allocated plaintiff an additional 30 days to respond to defendants' summary judgment motions. In May 2015, plaintiff moved to impose sanctions arising out of defendants' alleged spoliation of evidence.
On June 12, 2015, the Court entered a scheduling order, setting oral argument for July 6, 2015, on the sole issue of whether an employment relationship existed between plaintiff and Rockwell. At the hearing, plaintiff requested to stay the proceedings—to allow time for the Court to appoint a guardian ad litem or for him to seek counsel—and presented a letter, dated July 1, 2015, from his mental health counselor, attesting to his ongoing symptoms of anxiety and depression. Defendants opposed a stay, as they had been no conferral or even any previous notification that such a request would be submitted at oral argument. They also reiterated plaintiff had been aware of both this issue and the date set for oral argument for some time, had engaged in a pattern of delay, and that the case had been ongoing for several years, such that the interests of justice favored a prompt ruling on the merits. Because it was clear in the course of oral argument that plaintiff was both prepared and knowledgeable regarding on the narrow topic of an employment relationship, the Court found that no stay was necessary and denied plaintiff's oral request.
STANDARD
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, *1127 affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324, 106 S.Ct. 2548.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
Defendants each object to plaintiff's recitation of facts in his opposition brief, as well as to the declaration filed therewith. Specifically, Rockwell contends that, “by cutting and pasting from the allegations in his [FAC, plaintiff impermissibly] attempts to pass off speculative assumptions as facts.” Rockwell's Reply to Mot. Summ. J. 2. Agarwal similarly asserts that “[p]laintiff's Opposition uses vague and extreme sounding characterizations to further distort and exaggerate the account that he gave in his deposition [such that] the Court *1128 should set aside these portions of plaintiff's Declaration” pursuant to the sham affidavit rule. Agarwal's Reply to Partial Mot. Summ. J. 9. Although expressly permitted to do so by local rule, plaintiff did not respond to defendants' evidentiary objections.
See LR 56–1(b) (“[i]f an evidentiary objection is raised by the moving party in its reply memorandum, the non-moving party may file a surreply memorandum [within] seven days”).
3Defendants' objections are granted for two reasons. First, affidavits that are “merely conclusory reiterations of the allegations in the complaint” are insufficient to defeat summary judgment. Roslindale Co-op. Bank v. Greenwald, 638 F.2d 258, 261 (1st Cir.),
cert. denied, 454 U.S. 831, 102 S.Ct. 128, 70 L.Ed.2d 108 (1981);
see also Yunis v. United States, 118 F.Supp.2d 1024, 1030 (C.D.Cal.2000) (“[d]eclarations on information and belief are insufficient to establish a factual dispute for purposes of summary judgment”) (citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989)). For example, plaintiff contends that, “[o]n information and belief, Aswat often consulted Agarwal when making employment decisions”; however, there is no indication that plaintiff possessed any personal knowledge of such facts. Pl.'s Resp. to Mots. Summ. J. 5; First Justice Decl. ¶ 17. Even though this case has been ongoing for nearly three years, and plaintiff was represented by counsel for much of that time, he failed to generate any evidence, outside of his declaration (which is merely a more concise recitation of the complaint) to support his allegations of wrongdoing. To the extent relevant, the other evidence attached to his opposition—i.e. a litigation letter sent by Rockwell's counsel to plaintiff regarding Rockwell's document retention policy, internal emails from plaintiff's time at Rockwell, plaintiff's 2012 counseling records, and the depositions of Agarwal, Aswat, Ellis, and Zimmerman—largely supports defendants' motions.
45Second, “a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir.1991). The sham affidavit doctrine therefore prevents a party who has been examined at length on deposition from raising an issue of fact simply by submitting a declaration contradicting his or her own prior testimony, which would “greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”
Id. (citations and internal quotations omitted). In order to trigger this rule, the court must make a factual determination that the contradiction is a sham and “the inconsistency between a party's deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit.” Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998–99 (9th Cir.2009) (citation omitted).
67The sham affidavit rule should nonetheless be applied with caution because it “is in tension with the principle that a court's role in deciding a summary judgment motion is not to make credibility determinations or weigh conflicting evidence.” Id. at 998. As such, “newly-remembered facts, or new facts, accompanied by a reasonable explanation, should not ordinarily lead to the striking of a declaration as a sham.” Yeager v. Bowlin, 693 F.3d 1076, 1081–82 (9th Cir.2012) (citation omitted). In other words, “the non-moving party is not precluded from elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition and minor inconsistencies that result from an honest discrepancy, a mistake, or newly discovered evidence afford no basis for excluding an opposition affidavit.” Messick v. Horizon Indus., 62 F.3d 1227, 1231 (9th Cir.1995) (citation and internal quotations omitted).
*1129 8The Court finds that plaintiff's declaration does not offer elucidation or explanation of his prior deposition testimony. For instance, plaintiff asserts in his April 2015 declaration that Agarwal got into bed with him “multiple times” and “attempted to rape” him, such that he had to “fend off [Agarwal's] advances ‘on numerous occasions.’ ” First Justice Decl. ¶¶ 20–21. While the Court does not take allegations of rape lightly, plaintiff's February 2014 description of these events
[3] painted a far different picture: he testified that there were only two instances, in August or September 2010, during which Argawal laid down on the mattress where he was sleeping and rubbed up against him; both parties were fully clothed and separated by blankets. First Buchanan Decl. Ex. 1, at 82–83, 105. These occurrences lasted “a short period”—less than a “couple minutes”—and were terminated when Agarwal got up and walked into his own room after plaintiff pushed him off the bed without saying anything.
Id. at 84–85, 105–06.
In addition, plaintiff asserts in his declaration that Agarwal engaged in inappropriate sexual behavior on “numerous occasions.” First Justice Decl. ¶¶ 14–15, 18. Similarly, plaintiff contends in his brief that “Agarwal often made many ... sexual epithets: ‘I am a dirty old man,’ ‘I want sex,’ ‘I am going [to] come into bed tonight,’ ‘you have a nice butt,’ ‘you have to lick ass to get ahead at work,’ ‘if you take care of me I'll take care of you.’ ” Pl.'s Resp. to Mots. Summ. J. 23. Yet, during his deposition, plaintiff stated that Agarwal made only “two or three” sexual comments total—i.e. one to three times he said “you look sexy” and once he remarked “you have a nice butt”—which, like the alleged few physical overtures, occurred in the first two months of the approximately nine-month period they lived and worked together. First Harnden Decl. Ex. A, at 17, 58–59; First Buchanan Decl. Ex. 1, at 27–29, 71, 81–82, 101; Second Buchanan Decl. Ex. A, at 2–3;
see also First Buchanan Decl. Ex. 1, at 100 (plaintiff explicitly testifying that the only “off-color language” Agarwal used was “looking sexy, nice butt”).
The Court is unable to conclude that this is a case in which plaintiff's memory could conceivably have been refreshed by subsequent events, including discussions with others or his review of documents. This is especially true in light of the fact that Agarwal, the only other person present or with any knowledge of these alleged events (as plaintiff never reported them and they were not independently observed) “emphatically denies having any sexual interest in plaintiff or engaging in any sexual or attempted sexual conduct with him whatsoever.” Agarwal's Mot. Summ. J. 6; Agarwal Decl. ¶ 26; First Harnden Decl. Ex. A, at 5, 10–11, 17–18, 40, 53–54; First Buchanan Decl. Ex. 1, at 21–24, 29–30, 96. Moreover, given the seriousness of the allegations in plaintiff's declaration, and his adamant deposition statements that he had disclosed all improper behavior, the Court cannot find that this was a situation in which plaintiff was elaborating upon or *1130 clarifying prior testimony. In fact, plaintiff's deposition testimony, while often vague, provided far more detail than his declaration.
Accordingly, because no explanation was provided for the clear and unambiguous inconsistencies between his February 2014 and April 2015 sworn statements, the Court finds that portions of plaintiff's declaration are a sham.
[4]Plaintiff's April 2015 declaration is stricken, as are the corresponding allegations in his response brief, to the extent they contradict his prior deposition testimony or are conclusory.