Sherill Ford-Torres v. Cascade Valley Telecom, Inc. , 374 F. App'x 698 ( 2010 )

FILED
NOT FOR PUBLICATION MAR 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SHERRILL FORD-TORRES, No. 08-35261
Plaintiff - Appellant, D.C. No. 6:06-CV-00914-ALA
v.
MEMORANDUM *
CASCADE VALLEY TELECOM, INC.,
an Oregon corporation; ROBERT
O’SHEA; N.W. CASCADE
MARKETING, INC.,
Defendants,
and
JADENT, INC., an Oregon corporation;
DENNIS O’SHEA; TOM O’SHEA,
Defendants - Appellees.
SHERRILL FORD-TORRES, No. 08-35545
Plaintiff - Appellee, D.C. No. 6:06-cv-00914-AA
v.
CASCADE VALLEY TELECOM, INC.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
an Oregon corporation; ROBERT
O’SHEA; N.W. CASCADE
MARKETING, INC.,
Defendants,
and
JADENT, INC., an Oregon corporation;
DENNIS O’SHEA; TOM O’SHEA,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted October 8, 2009
Portland, Oregon
Before: O’SCANNLAIN and N.R. SMITH, Circuit Judges, and WHYTE, **
District Judge.
Sherrill Ford-Torres appeals from the district court’s grant of summary
judgment in favor of defendants Jadent, Inc. (“Jadent”), Dennis O’Shea
(“Dennis”), and Thomas O’Shea (“Tom”)1 on her sex discrimination, state-law tort,
**
The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
1
Robert O’Shea (“Robert”), Cascade Valley Telecom, Inc. (“Cascade”), and
Northwest Cascade Marketing, Inc. (“Northwest”) did not join in the motion for
summary judgment below and are not parties to the present appeal.
2
and fraudulent transfer claims. Defendants cross-appeal from the district court’s
denial of sanctions against plaintiff’s counsel under Federal Rule of Civil
Procedure 11(c)(1)(A). We review grants of summary judgment de novo. Balint v.
Carson City Nev., 180 F.3d 1047, 1050 (9th Cir. 1997). We affirm.
I
A
With respect to Ford-Torres’ sex discrimination claims, the district court
properly concluded that Jadent could not be considered Ford-Torres’s “employer”
under Oregon or federal law.
Oregon courts recognize the indirect employer theory only in the context of
Employer’s Liability Law claims, see Boothby v. D.R. Johnson Lumber Co., 55
P.3d 1113, 1116-17 (Or. Ct. App. 2002), and the joint employer theory only in the
context of workers’ compensation claims, see Liberty Nw. Ins. Corp. v. McDonald,
66 P.3d 528, 530 (Or. Ct. App. 2003). Ford-Torres raises neither type of claim.
Under Title VII, the purported indirect employer must be “the entity
performing the discriminatory act.” Anderson v. Pacific Maritime Ass’n, 336 F.3d
924, 931 (9th Cir. 2003). Without such evidence, the district court correctly
concluded that plaintiff could not proceed against defendants as indirect employers.
“Two or more employers may be considered ‘joint employers’ if both employers
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control the terms and conditions of employment of the employee.” E.E.O.C. v.
Pacific Maritime Ass’n, 351 F.3d 1270, 1275 (9th Cir. 2003) (internal quotation
marks omitted). Ford-Torres’s allegations taken as a whole do not raise a triable
issue as to whether Jadent, Tom, or Dennis had any authority over Cascade
employees, or determined in any way the terms or conditions of their employment.
B
The district court also properly granted summary adjudication on the state-
law tort claims (reckless and intentional infliction of emotional distress). Because
Ford-Torres presented no evidence that Robert was an employee of defendants,
there was no basis for holding defendants liable for Robert’s conduct under a theory
of respondeat superior. See Chesterman v. Barmon, 753 P.2d 404, 406 (Or. 1988).
C
The district court properly granted summary judgment in favor of Jadent,
Dennis and Tom on the claims under Oregon’s Uniform Fraudulent Transfer Act
(“UFTA”). Ford-Torres appears to argue that Cascade fraudulently transferred its
right to payment under its contract with Jadent to Northwest. She also contends that
after Cascade ceased doing business, Jadent paid Northwest the money Jadent owed
Cascade. Under the UFTA, such claims could conceivably be asserted against
Cascade (the debtor) or Northwest (the transferee), but not against Dennis, Tom or
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Jadent (non-debtor transferors). See Cadle Co. II v. Schellman, 868 P.2d 773, 777
(Or. Ct. App. 1994).
II
Defendants cross-appeal the denial of sanctions against plaintiff’s counsel
under Federal Rule of Civil Procedure 11. “[I]n considering a Rule 11 motion, a
district court must find whether a violation in fact has taken place.” Simpson v.
Lear Astronics Corp., 77 F.3d 1170, 1177 (9th Cir. 1996). Here, the district court
denied sanctions without making any findings as to whether there were any Rule 11
violations. “Because such a reasoned basis is necessary to make appellate review
meaningful,” we vacate the order denying sanctions and remand so that the district
court can make the requisite findings.
AFFIRMED in part, VACATED and REMANDED in part.
Costs are awarded to defendants Jadent, Inc., Dennis O’Shea, and Thomas
O’Shea.
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