Hicks v. Les Schwab Tire Centers of Portland, Inc. et al

Filing 48

OPINION AND ORDER. For the foregoing reasons, the Court DENIES Les Schwab's motion for summary judgment (ECF No. 28 ). (See 25-page opinion, attached.) IT IS SO ORDERED. Signed on 8/29/2018 by Magistrate Judge Stacie F. Beckerman. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

Case No. 2:17-cv-00118-SB

ELIZABETH HICKS,
Plaintiff,

OPINION AND ORDER

v.
LES SCHWAB TIRE CENTERS OF
PORTLAND, INC., an Oregon corporation,
Defendant.
BECKERMAN, U.S. Magistrate Judge.
Elizabeth Hicks (“Hicks”) brings this action against her employer, Les Schwab Tire
Centers of Portland, Inc., an Oregon corporation (“Les Schwab”).1 Hicks asserts federal law
claims of disability discrimination and retaliation pursuant to the Americans with Disabilities Act
(“ADA”) (42 U.S.C. §§ 12112 & 12203). Hicks also asserts state law claims of disability
discrimination (OR. REV. STAT. (“O.R.S.”) § 659A.112), disability retaliation (O.R.S. §
659A.109), workers’ compensation — retaliatory discrimination (O.R.S. § 659A.040), and

1

Plaintiff terminated Les Schwab Tire Centers of Oregon, Inc., an Oregon corporation,
and Les Schwab Headquarters, LLC, an Oregon limited liability company, as defendants on May
23, 2017.
PAGE 1 – OPINION AND ORDER

workers’ compensation — failure to reinstate (O.R.S. § 659A.043) and failure to reemploy
(O.R.S. § 659A.046).2
The Court has original jurisdiction over Hicks’ ADA claims pursuant to 28 U.S.C. § 1331
and supplemental jurisdiction over Hicks’ state law claims pursuant to 28 U.S.C. § 1367(a). All
parties consent to jurisdiction by a magistrate judge (ECF No. 25). See FED. R. CIV. P. 73(b). Les
Schwab moved for summary judgment on all of Hicks’ claims (ECF No. 28). See FED. R. CIV. P.
56. The Court heard oral argument on Les Schwab’s motion for summary judgment. For the
reasons explained below, the Court denies Les Schwab’s motion for summary judgment.
BACKGROUND3
Hiring of Hicks
Les Schwab hired Hicks on or about March 15, 2014, as a part-time sales and
administrative employee. (Am. Compl. ¶ 7.) Hicks was responsible for sales, payroll, and
opening customer credit accounts. (Id. ¶ 8.) Hicks reported to David Jensen (“Jensen”), the store
manager at Les Schwab’s service location in Nyssa, Oregon. (Id. ¶¶ 3, 9.) During Hicks’
interview for the position, Jensen told Hicks she would start as a part-time employee and later
transition to full-time employment. (Decl. Michael Owens Supp. Resp. Mot. Summ. J. ¶ 3, ECF
No. 41 (hereinafter “Owens Decl.”), Ex. 2, at 5.) The advertisement for the position “clearly
stated it was a full-time position” (id. Ex. 2, at 5), and the previous employee who held the
position, Mariah Harrison, worked full-time at the time of her departure. (Id. Ex. 3, at 6.) Hicks
became a full-time employee on or about March 16, 2015. (Id. at 9-10.)

2

Hicks concedes her state law claim of sex discrimination (O.R.S. § 659A.030(1)(a)-(b)).
(Pl.’s Resp. Opp’n Def.’s Mot. Summ. J. at 26.)
3

Unless otherwise noted, the following facts are either undisputed or viewed in the light
most favorable to Hicks.
PAGE 2 – OPINION AND ORDER

Performance Evaluations and Pay Raise
Jensen gave Hicks an overall performance rating of two out of three on a performance
evaluation dated May 8, 2014, and told Hicks “it was an excellent review.” (Id. Ex. 2, at 6.)
Sometime in March 2015, Jensen gave Hicks another rating of two out of three, stating on the
evaluation that Hicks needed improvement in the areas of work ethic, task completion, and
trainability. (Id. at 7.) Jensen told Hicks he was referring to wanting her to spend some of her
time working outside in the service bays to assist the sales and service employees by recording
vehicle information, such as make and model, license numbers, and mileage. (Id.) This work
sometimes required running and getting in and out of vehicles. (Id. at 19.) At Hicks’ next
performance review on August 31, 2015, she received a rating of one out of three. (Id. at 7-8.)
Jensen “remember[s] getting customer complaints about [Hicks] since right after she
started.” (Id. Ex. 3, at 14.) He asserts that, “We had a lot of problems with her attitude and how
she treated customers, her demeanor with other people on the crew, and a lot of complaints.” (Id.
at 13.) Jensen further asserts that Hicks’ bad attitude was because “she hadn’t had a raise.” (Id. at
49.) Hicks received a discretionary pay raise on October 1, 2015. (Id. at 12-13.) “You know, she
was on me persistent, and I finally gave her a raise[,]” Jensen testified. (Id. at 49.)
The Accident and Resultant Injury
On November 3, 2015, Brian Blackmore (“Blackmore”), assistant store manager at the
Nyssa store, was operating a pad hoist, which dropped onto Hicks’ feet and trapped her. (Id. at
15-16, 30.) Jensen witnessed the accident, heard Hicks yelling, and helped remove the hoist from
Hicks’ feet. (Id. at 16.) Hicks went to the emergency room and was diagnosed with a “crush”
injury to her left foot. (Am. Compl. ¶ 10.)

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On November 5, 2015, Hicks saw Dr. Lawrence Sladich (“Dr. Sladich”), who specializes
in occupational medicine. (Decl. Karen O’Kasey Supp. Def.’s Reply Supp. Sum. J. Mot. ¶ 10,
ECF No. 44 (hereinafter “O’Kasey Reply Decl.”), Ex. 9, at 1-2.) Dr. Sladich gave Hicks a
recommended work status of “no work capacity.” (Id. at 2.) He placed her left foot in a walking
boot and recommended that it not bear weight for two days. (Id.) He wrote that Hicks could
return to work on November 7, 2015, but should not run or jump and should continue wearing
the walking boot. (Id.) Dr. Sladich cleared Hicks for a regular return to work after Les Schwab
clarified that running and jumping were not essential functions of Hicks’ job, i.e., that her job is
sedentary. (Owens Decl. Ex. 2, at 45; Decl. Karen O’Kasey Supp. Def.’s Mot. Summ. J. ¶ 5,
ECF No. 30 (hereinafter “O’Kasey Decl.”), Ex. 4.)
Hicks returned to work on November 7, 2015. (Owens Decl. Ex. 2, at 12.) She had many
doctor appointments and physical therapy sessions during subsequent weeks. (Id. at 12-14.) After
each doctor appointment, Hicks’ medical provider faxed information regarding the appointment,
necessary treatment, and medications to Les Schwab. (Id. at 12-13.) Other than absences for
medical appointments, Hicks worked her regular schedule through 2015. (Id. at 14.) In a report
dated December 1, 2015, and in Patient Visit Summaries dated December 31, 2015, April 11,
2016, November 17, 2016, and December 29, 2016, Dr. Sladich cleared Hicks to perform
sedentary work. (O’Kasey Decl. Ex. 1, at 1; Owens Decl. Ex. 1, at 1-4.)
Hicks also saw two orthopedic surgeons during this time period: Dr. Sladich referred her
to Dr. Bob Davis in Fruitland, Idaho, and Dr. Davis referred her to Dr. Coughlin (first name
unknown) in Boise, Idaho. (Id. Ex. 2, at 10.) Hicks testified that her crush fracture, also known as
a “nut cracker break[,]” cannot be repaired by surgery because the bones are broken such that
“there is nothing to pin back together.” (Id. at 4.)

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Hicks wore the orthopedic boot on her left foot for more than one year. (Id. at 12.) She
attended physical therapy to treat her foot injury through March 2017. (Id. at 3.) On July 18,
2017, Hicks described her pain as follows: “[S]ome days my foot is fine. There are other days
that my foot kills me.” (Id. at 4.) Her medical restrictions included no long-term standing,
running, jumping, squatting, or bending. (Id. at 20.) As of April 5, 2018, Hicks’ injury had not
fully healed and was “not expected to fully heal at any time in the foreseeable future.” (Decl.
Elizabeth Hicks Supp. Pl.’s Resp. Opp’n Def.’s Mot. Summ. J. 2, ECF No. 42 (hereinafter
“Hicks Decl.”).) Hicks described ongoing impairments caused by the injury, such as being
unable to ski, go on long hikes, or “stand for long periods of time without experiencing pain[,]”
and difficulty “dancing with my husband or going down stairs without stumbling or falling.”
(Id.)
Workers’ Compensation Claim
Hicks filed a workers’ compensation claim on or about November 3, 2015. (Am. Compl.
¶ 10.) The claim was accepted on or about December 29, 2015. (Id. ¶ 22.) On November 10,
2015, Sarah Key (“Key”), who worked in Les Schwab’s workers’ compensation department,
emailed Jensen and Blackmore regarding Hicks’ claim, informing them that “[a]t this time your
store will be charged the medical only service charge of a maximum of $300.00.” (Owens Decl.
Ex. 3, at 65.) The claim later became a “time-loss” claim, resulting in a one-time $1,500 charge.
(Id. Ex. 4, at 3; Ex. 5, at 4.) Such a charge impacts a store’s profit margin (id.), and profitability
can impact employee bonuses (id. at 5). However, Jensen testified that such an impact is “almost
nothing.” (O’Kasey Reply Decl. Ex. 1, at 2.)
Christopher Church (“Church”) replaced Jensen as store manager of the Nyssa store on
April 1, 2016. (O’Kasey Decl. Ex. 10, at 4; Owens Decl. Ex. 5, at 3.) Sometime after Church

PAGE 5 – OPINION AND ORDER

became store manager, Key notified Church that Hicks had a workers’ compensation claim and
was set to return to work. (Owens Decl. Ex. 5, at 2.) Church understood that a time-loss claim
could affect the store’s profits and employee bonuses. (Id. at 3-5.) Key did not inform Church
that Hicks had made a claim with the Oregon Bureau of Labor and Industries (“BOLI”) against
Les Schwab. (Id. at 2.)
First Disciplinary Write-Up: Customer Credit Account
On December 21, 2015 (approximately six weeks after Hicks’ injury), Jensen and
Blackmore met with Hicks to discipline her for opening a customer credit account for herself and
her husband in March 2015. (Id. Ex. 3, at 28-29.) Hicks received a write-up because management
did not authorize the credit account. (O’Kasey Decl. Ex. 2, at 1-2.) The write-up did not specify
what policy Hicks had violated. (Id. at 1.)
This was the first time Hicks had received an “Employee Conference Record (Form
123),” which Jensen describes as “a letter to the employee, letting them know that you have a
problem with their performance, or safety, or an issue they’re having at work.” (Owens Decl. Ex.
3, at 20-21.) Jensen asserts that previously he had informally documented issues in Hicks’ file.
(Id. at 21; see also id. at 66 (listing in Hicks’ file nine such issues, including calling in sick,
running her own credit report, customer complaints, going home early for a hair appointment,
not offering to help a fellow employee, and four instances of missing work for a doctor
appointment).) After Hicks’ injury, Jensen had spoken with Joy Cox (“Cox”), a Les Schwab
human resources business partner assigned to the Nyssa store, who told Jensen to start formally
documenting any issues with Hicks and reminded him that Hicks had an open workers’
compensation claim. (Id. at 21, 55-56.)

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With respect to opening the credit account, Hicks had unilateral authority to open
customer credit accounts for customers whose credit scores were above a certain threshold score.
(O’Kasey Decl. Ex. 7, at 10.) Hicks was required to check with Jensen or Blackmore before
opening credit accounts for customers whose credit scores were below that threshold. (Owens
Decl. Ex. 3, at 28.) At his deposition, Jensen could not identify a policy that Hicks had violated
by opening her own credit account, but said that “[i]t’s kind of a common sense issue.” (O’Kasey
Decl. Ex. 7, at 10.) Jensen also referenced Les Schwab’s credit score guidelines and said, “I was
never able to see any of that on [Hicks’] account . . . .” (Id.) In addition to Jensen, neither
Blackmore nor Cox could identify a policy that Hicks violated by her actions. (Owens Decl. Ex.
4, at 6; Ex. 6, at 2-3.) However, in its reply (ECF No. 43), Les Schwab now asserts that Hicks
violated at least two provisions of Les Schwab Tire Centers Code of Business Conduct (“the
Code”): one requiring employees to avoid conflicts of interest “between personal business
interests and the interests of the Company” and another stating that “no person shall receive
discounts, terms, business opportunities or any other special treatment based on their relationship
or friendship with a Company employee.” (Def.’s Reply Supp. Mot. Summ. J. at 3-4; O’Kasey
Reply Decl. Ex. 3, at 3-4.)
Hicks opened the credit account in or around March 2015. (Am. Compl. ¶ 17.) She
asserts that she told Jensen that she had opened the account for herself and her husband at that
time. (Owen Decl. Ex. 2, at 23.) Jensen testified that he disciplined Hicks regarding the account
the day he discovered it, on December 21, 2015. (O’Kasey Decl. Ex. 7, at 9.) He said he
discovered the account while “going through credit and the accounts receivable.” (Id.) Cox
testified that Jensen discovered the account the day he called her to discuss it, on December 17,
2015. (O’Kasey Reply Decl. Ex. 2, at 2-4.) However, Jensen had previously credited Hicks’

PAGE 7 – OPINION AND ORDER

credit account fifty dollars when Hicks’ husband traded in tires. (Owens Decl. Ex. 2, at 24.)
When asked about crediting an account in the names of Hicks and her husband, Jensen testified,
“I recall something about that. I don’t remember the details of it.” (Id. Ex. 3, at 24.) Jensen
further testified that Hicks had a “bad debt write-off account” for Les Schwab’s Vale store, but
he did not know what he credited to that account and could not recall what he did with the credit
for the tires. (Id. at 25-26.) Blackmore testified that a manager generally would be able to tell
which Les Schwab store is associated with an account when crediting that account. (Id. Ex. 4, at
5-6.)
Second Disciplinary Write-Up: Bad Attitude
On December 23, 2015, two days after Hicks received the first disciplinary write-up,
Jensen and Blackmore again met with Hicks, and Jensen gave Hicks a second disciplinary writeup. (Id. Ex. 3, at 33; Ex. 2, at 25.) The write-up stated that “Elizabeth has a poor attitude at work.
She is being combative, reserved, and is ignoring management.” (O’Kasey Reply Decl. Ex. 4, at
2.) Jensen testified that he wrote up Hicks because, “since the first write-up, her attitude was
never the same. She . . . never had a great attitude . . . . But the attitude went extremely
downhill.” (Owens Decl. Ex. 3, at 32.) At the meeting, Jensen told Hicks “that her attitude has to
turn around. We can’t have her around the customers . . . with an attitude like that.” (Id. at 33.)
Hicks testified that in the meeting Jensen told her she “was being really reserved and
quiet that day.” (Id. Ex. 2, at 25.) Hicks told Jensen that “didn’t have anything to do with Les
Schwab” but was because her best friend had called her earlier that morning and told her that
another friend had testicular cancer and would soon undergo surgery. (Id.) In addition, Hicks
testified that just before the meeting several Les Schwab employees, including Blackmore,
“engag[ed] in an inappropriate workplace conversation.” (Id. at 26.) Hicks asserts that she

PAGE 8 – OPINION AND ORDER

ignored the conversation, and Jensen and Blackmore called the disciplinary meeting with her
minutes later. (Id. at 25-27.) Jensen does not recall Hicks telling him about a phone call from her
friend and denies that the inappropriate workplace conversation occurred. (Owens Decl. Ex. 3, at
33-34.) He asserts that Hicks was ignoring others at work because she was mad about the first
write-up. (Id. at 33.) Hicks refused to sign the second write-up. (Id. at 32.)
First Layoff
During the same December 23, 2015, meeting, Jensen and Blackmore informed Hicks
that she was being seasonally laid off. (Id. at 35.) Hicks’ hours were reduced to zero, which
Blackmore testified was not abnormal. (O’Kasey Decl. Ex. 9, at 3-4; see also id. Ex. 10, at 5-6.)
Hicks was placed on seasonal layoff status during the prior winter as well but worked reduced
hours during that layoff. (Id. Ex. 7, at 7-8.) The business slowdown during winter 2015-2016 was
“similar” to the slowdown during the prior winter. (Owen Decl. Ex. 3, at 52.) Seasonal layoffs
during the winter months are typical at Les Schwab stores. (O’Kasey Decl. Ex. 7, at 4; Ex. 9, at
2; Ex. 10, at 4-5.) At the time Hicks was laid off, two other employees had already been placed
on seasonal layoff, and another employee went on seasonal layoff the following month. (Decl.
Dave Jensen Supp. Def.’s Mot. Summ. J. 1-2, ECF No. 29.) Hicks understood that she was
“being laid off as of December 23rd as part of the seasonal layoff.” (O’Kasey Decl. Ex. 8, at 8.)
However, Jensen testified that Hicks’ “poor attitude [was] part of the reason that [she] was put
on a seasonal layoff.” (Owens Decl. Ex. 3, at 35.)
Jensen and Blackmore also informed Hicks during the December 23, 2015, meeting that
they were considering changing her position from full-time to part-time when she returned from
layoff. (O’Kasey Decl. Ex. 8, at 7.) Hicks asserts and Jensen denies that Jensen was considering
the change because of the time Hicks was away from work attending medical appointments.

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(Owens Decl. Ex. 2, at 41; Id. Ex. 3, at 36.) Blackmore testified that he and Jensen “felt that
[they] could do [Hicks’] job duties and . . . reduce wages.” (O’Kasey Decl. Ex. 9, at 3.)
Later that same day, Hicks called Les Schwab’s human resources hotline. (Owens Decl.
Ex. 2, at 30.) She reported that she had been injured and felt that she was being laid off as a
result of her injury. (Pl.’s Resp. Opp’n Def.’s Mot. Summ. J. at 9.) She was referred to Gary
Kennedy (“Kennedy”), a regional manager who oversaw the Nyssa store. (Owens Decl. Ex. 2, at
30.) Hicks called Kennedy, who was not aware of her injury and told Hicks he would get back to
her after making some calls. (Id.) Kennedy called Jensen and then called back Hicks within an
hour. (Id. at 31.) Hicks alleges that Kennedy was “nice” during the first call and that during the
second call “his demeanor had completely changed.” (Id. at 30-31.) Specifically, Hicks alleges
that Kennedy asked her what she was trying to accomplish by her phone call and told her that he
would “always have [his] manager’s back.” (Id. at 31.) In addition, Hicks alleges that Kennedy
told her that Jensen was not aware of Oregon law regarding time loss. (Id.) Hicks expressed
disbelief and stated that Jensen should know such laws as a store manager, and Kennedy “got
upset” and asked whether Hicks was implying that Jensen was a liar. (Id.)
On December 28, 2015, Jensen put a note in Hicks’ file stating that she had violated
company policy by using vacation time to attend doctor appointments for her injury without
management approval. (Id. Ex. 3, at 44-45.) The note further stated that Hicks had falsely
claimed that Key approved such use of her vacation time. (Id. at 45.) Hicks asserts that soon after
her injury Blackmore had told her that she would be paid for the time she spent at appointments
but that on or around December 21, 2015, Jensen told her that he would not continue to pay her
for such time. (Id. at 27.)

PAGE 10 – OPINION AND ORDER

Status Change and Revocation of Benefits
On December 31, 2015, Jensen changed Hicks from a full-time employee to a part-time
employee, effective that day. (Id. at 51-52.) Jensen listed the status change as a “[d]emotion” on
the Les Schwab Employee Transfer / Pay Change form. (Id. at 36, 51, 72.)
On January 28, 2016, Jensen submitted two Les Schwab Employee Leave / Layoff /
Return to Work forms, both effective December 31, 2015. (Id. at 71; O’Kasey Decl. Ex. 3.) On
one, Jensen listed the status change type as “Leave” and selected the “Work Comp - work
related” option. (Owens Decl. Ex. 3, at 71.) On the other, Jensen listed the status change type as
“Leave” and selected three options: “Medical - not work related[,]” “Work Comp - work
related[,]” and “Personal[.]” (O’Kasey Decl. Ex. 3.) The record is not clear as to why Jensen
submitted two conflicting forms.
Because of Hicks’ demotion to part-time status, she no longer was eligible for insurance
benefits, including health insurance. (Owens Decl. Ex. 3, at 36, 39.) Hicks also lost her eligibility
for retirement benefits — an amount equal to fifteen percent of Hicks’ wages that Les Schwab
deposited into a retirement account. (Id. at 46-47.) For those reasons, Blackmore described the
status change as a demotion. (Id. Ex. 4, at 10-11.)
No other employee at the Nyssa store received a similar status change. (Id. Ex. 3, at 52.)
Les Schwab asserts that Dr. Sladich restricted Hicks to sedentary work on December 31, 2015,
and that “Les Schwab converted [P]laintiff’s layoff status to medical leave because at that point,
she was unable to return to work due to her work restriction.” (Def.’s Mot. Summ. J. at 3; see
also O’Kasey Decl. Ex. 1 (report from Dr. Sladich changing Hicks’ work status to “Restricted
Duty” and recommending “[s]edentary work[]”); see also O’Kasey Reply Decl. Ex. 6, at 1
(email from a Les Schwab leave administrator notifying Jensen and Blackmore that Hicks was

PAGE 11 – OPINION AND ORDER

on “leave status” because her “doctor gave her work restrictions as of 12/31”); see also id. at 2-3
(letter from the leave administrator dated January 27, 2016, notifying Hicks of her rights and
responsibilities while on medical leave).)
Jensen testified that his understanding after submitting the Les Schwab Employee
Transfer / Pay Change form on December 31, 2015, was not that Hicks would work zero hours
as of that date (i.e., that Hicks was on medical leave), but that Hicks would work part-time.
(Owens Decl. Ex. 3, at 40.) Jensen also testified that Hicks lost her insurance after her seasonal
layoff as a result of “go[ing] to part-time[.]” (Id. at 36.) Neither Jensen nor Blackmore attributed
Hicks’ status change to increased medical restrictions or medical leave. (Id. at 36-40; Ex. 4, at
10-12.) Hicks asserts that she was never told that her employment status changed to part-time on
December 31, 2015, but that Jensen told her during the December 23, 2015, meeting that he and
Blackmore were considering the change. (Id. Ex. 2, at 21-22.)
Hicks asserts that it is not clear on the face of the December 31, 2015, report from Dr.
Sladich (see ECF No. 31) that Hicks was unable to return to work due to her medical restrictions.
Dr. Sladich’s December 1, 2015, Patient Visit Summary restricted Hicks from running and
jumping and required her to wear a walking boot while at work. (Owens Decl. Ex. 1, at 1.) The
December 31, 2015, report changed Hicks’ work status to “Restricted Duty” but still allowed
sedentary work. (O’Kasey Decl. Ex. 1, at 1.) Hicks could perform her regular job duties while
sedentary. (Id. Ex. 2, at 15-16.) She could not run or jump, i.e., work in the service bays, but
those were not part of her typical job requirements. (Id.; O’Kasey Decl. Ex. 4.)
New Manager and Return with Reduced Hours
Before Hicks was laid off, she was scheduled to work in January 2016. (Owens Decl. Ex.
2, at 28-29.) Beginning in that month and continuing on a weekly basis, Hicks called Jensen and

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Blackmore and requested to return to work. (Id. at 29.) Jensen and Blackmore told Hicks that
they did not need her because they were performing her job duties.4 (Id.; see also id. Ex. 4, at
12.) Hicks received time-loss payments from her workers’ compensation claim during the time
she was laid off. (Id. Ex. 2, at 29.)
On March 18, 2016, Les Schwab’s leave administrator, Sally Heise (“Heise”), wrote a
letter to Hicks regarding her medical leave. Heise asked Hicks for information regarding her
medical needs and requested that Dr. Sladich complete an attached Medical Certification form.
(O’Kasey Reply Decl. Ex. 6, at 4.) On March 31, 2016, Dr. Sladich faxed the completed form to
Heise, indicating that Hicks had an impairment that prevented her from standing continuously or
bearing much weight on her left leg. (O’Kasey Decl. Ex. 5.)
In April 2016, Church became the new store manager of the Nyssa store, and Jensen
transferred to another Les Schwab store. (Id. Ex. 3, at 3, 47.) When Church arrived, Jensen “gave
him a quick rundown on the employees and different situations.” (Id. at 3-4.) Jensen told Church
that Hicks “was an employee that we were having some issues with, and she was on layoff. And
. . . it was up to his decision . . . where he wanted to move forward with her.” (Id. at 4.)
Blackmore and Church continued to perform Hicks’ job duties. (Id. Ex. 4, at 13-14.)
On April 11, 2016, Dr. Sladich sent to Les Schwab another Patient Visit Summary, which
continued to restrict Hicks to sedentary work and from bearing weight on her left foot. (Owens
Decl. Ex. 1, at 2.) Nevertheless, on April 15, 2016, Les Schwab sent Hicks a letter offering her a
temporary light-duty assignment. (Id. Ex. 2, at 44.) Hicks declined because she had an

4

Hicks asserts that Daniel Whalin (“Whalin”), a full-time sales and service employee at
the Nyssa store, sprained his back while working in December 2015, took some vacation time,
and then performed Hicks’ sales and administrative duties until his back was well enough for
him to return to his job in the service bays. (Id. at 38-40.)
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appointment on the start date. (Id. at 34.) On April 22, 2016, Les Schwab sent a second offer
letter with a new start date, which Hicks accepted. (Id. at 35, 46.)
Hicks returned to work on May 2, 2016. (Id. at 35.) After her return, she was scheduled to
work one day per week. (Id. at 36.) Hicks asked Church for more hours, and Church told her
there were no additional hours available. (Id. at 35-36.)
Second Layoff, Requests for Reinstatement, and Termination
On November 17, 2016, and December 29, 2016, Dr. Sladich sent to Les Schwab Patient
Visit Summaries continuing to restrict Hicks to sedentary work. (Id. Ex. 1, at 3-4.) On January 2,
2017, Hicks, who was still working one day per week, was placed on seasonal layoff again due
to “[b]usiness slowdown.” (O’Kasey Decl. Ex. 10, at 6-7, 9-10.) She and one other laid-off
employee were given zero hours, whereas the other laid-off employees were put on reduced
schedules. (Id. at 5-6.) Hicks asserts that Blackmore indicated she might return around March
2017. (Owens Decl. Ex. 2, at 37.) She contacted Blackmore in January and February, asking to
return to work, but Blackmore told her that he had no available hours. (Id.) On February 9, 2017,
Hicks took a full-time job at Waremart by WinCo (“Waremart”) in Ontario, Oregon.5 (Id. at 2.)
However, after starting work at Waremart, Hicks again asked Blackmore to return to work and
was told he had no available hours. (Id. at 37.) Of the employees who were seasonally laid off,
Hicks was the only employee not asked to return to work. (Id. Ex. 4, at 15.)
Blackmore testified that Hicks was eligible for rehire but that he would not rehire her if
he had hours available because of “[t]rainability.” (Id.) Church testified that business picked up

5

In addition to applying at Waremart, Hicks applied for jobs at Silverhawk Realty and D.
L. Evans Bank. (O’Kasey Decl. Ex. 8, at 3, 18.) Hicks did not indicate on any of the employment
applications that she had a disability or required an accommodation. (Id. at 4-5, 18-19.) Hicks
testified that she did not so indicate because the positions required sedentary work, which she
could do without an accommodation. (Id. at 4.)
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after this seasonal layoff, but he did not bring back Hicks “[b]ecause in a store the size of Nyssa,
I do not find it necessary to have a sales and administrative position.” (O’Kasey Decl. Ex. 10, at
7.) Church testified that he and Jensen took over Hicks’ duties without assigning any of his or
Hicks’ work to other employees and without working any additional hours. (Id. at 8.) He did not
hire anyone to replace Hicks. (Id. at 6.)
ANALYSIS
I.

STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). On a motion
for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. Porter v. Cal. Dep’t of
Corr., 419 F.3d 885, 891 (9th Cir. 2005) (citations omitted). The court does not assess the
credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “Where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).
II.

DISCUSSION
A.

Hicks Is Disabled within the Meaning of the ADA.

Les Schwab argues that Hicks is not disabled within the meaning of the ADA because (1)
her foot fracture is a temporary injury and (2) her foot fracture does not substantially limit any
major life activities. (Def.’s Mot. Summ. J. at 5-7.)

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To establish a prima facie case of disability discrimination under either the federal or
state ADA,6 Hicks must first demonstrate that she has a disability as defined by the ADA.
Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012). The term
“disability” is defined as “a physical or mental impairment that substantially limits one or more
major life activities[.]” 42 U.S.C. § 12102(1)(A). Enumerated “major life activities” include
performing manual tasks, walking, standing, lifting, and bending, among others. 29 C.F.R. §
1630.2(i)(1)(i) (2018). “Whether an activity is a major life activity is not determined by reference
to whether it is of central importance to daily life.” 29 C.F.R. § 1630.2(i)(2) (quotation marks
omitted). Furthermore, “[t]he term substantially limits shall be construed broadly in favor of
expansive coverage . . . .” 29 C.F.R. § 1630.2(j)(1)(i) (quotation marks omitted); see also O.R.S.
§ 659A.139(2) (same). “An impairment need not prevent, or significantly or severely, restrict the
individual from performing a major life activity . . . .” 29 C.F.R. § 1630.2(j)(1)(ii). Rather, the
question is whether the impairment substantially limits the individual’s ability to perform “as
compared to most people in the general population.” Id. This “determination . . . requires an
individualized assessment.” 29 C.F.R. § 1630.2(j)(1)(iv).
Here, Hicks’ alleged disability is her foot fracture, which she asserts substantially limits
her ability to stand, walk, and run. (Am. Compl. ¶ 31; see also O’Kasey Decl. Ex. 5.) She also
asserts substantial limitation of her ability to squat and “perform[] a number of life activities that
require coordination and the use of her foot, including dancing, skiing, and traversing stairs.”
(Pl.’s Resp. Opp’n Def.’s Mot. Summ. J. at 23; see also Hicks Decl. ¶ 4 (reporting being unable

6

O.R.S. § 659A.139(1) provides that Oregon’s discrimination laws “shall be construed to
the extent possible in a manner that is consistent with any similar provisions of the federal
Americans with Disabilities Act of 1990[.]”
PAGE 16 – OPINION AND ORDER

to “stand for long periods of time without experiencing pain” and difficulty “going down stairs
without stumbling or falling”).)
Les Schwab argues that Hicks’ foot fracture does not qualify as a disability because it
was a temporary injury.7 (Def.’s Mot. Summ. J. at 5-6.) The Court disagrees. To be sure,
temporary injuries (e.g., broken bones) do not typically qualify as disabilities. See Parks v. Port
of Oakland, No. 16-CV-04061-HSG, 2017 WL 2840704, at *4 (N.D. Cal. July 3, 2017) (finding
that a torn rotator cuff did not qualify as a disability where the plaintiff did not allege that her
injury was chronic). However, that general rule does not apply here because Hicks’ crush
fracture could not be surgically repaired. (Owens Decl. Ex. 2, at 4.) In lieu of surgery, Hicks was
required to wear an orthopedic boot for more than a year and she attended physical therapy
through at least March 2017. (Id. at 3, 12.) Furthermore, despite the injury occurring in
November 2015, she continued to be restricted from long-term standing, running, jumping,
squatting, and bending. (Id. at 20.) Almost four years after the accident, Hicks’ crush fracture is
not expected to heal in the foreseeable future. (Hicks Decl. ¶ 4.) For those reasons, the fracture is

7

In support of its position, Les Schwab points to the fact that Dr. Sladich released Hicks
back to work without restrictions and his later restrictions were in place for only three months.
(Def.’s Mot. Summ. J. at 6.) To the contrary, Dr. Sladich initially restricted Hicks from running
and jumping. (O’Kasey Reply Decl. Ex. 9, at 2; Id. Ex. 10; Owens Decl. Ex. 1, at 1.) Dr. Sladich
then released Hicks to work without restrictions because Les Schwab faxed him a letter
informing him that Hicks’ job did not require running or jumping. (O’Kasey Decl. Ex. 4.) In
other words, Dr. Sladich’s release indicates that Hicks’ injury did not require restrictions at
work, not that it did not require restrictions in other aspects of her life. Furthermore, Dr.
Sladich’s later Patient Visit Summaries restricted Hicks to sedentary work. Owens Decl. Ex. 1, at
2-4 (dated Apr. 11, 2016, Nov. 17, 2016, and Dec. 29, 2016).
Similarly, Les Schwab relies on Dr. Sladich’s report that Hicks’ “work-related
conditions” were medically stationary as of July 17, 2017, and that she could return to her former
position at Les Schwab without permanent restrictions. (Def.’s Reply Supp. Mot. Summ. J. at 11;
O’Kasey Reply Decl. Ex. 11, at 1.) However, the fact that an injury is not worsening does not
mean that it is improving or that it does not amount to a current disability. Furthermore, as
discussed above, Hicks did not require restrictions at work because her position was sedentary.
PAGE 17 – OPINION AND ORDER

not temporary. See Norris v. Allied-Sysco Food Servs., Inc., 948 F. Supp. 1418, 1434 (N.D. Cal.
1996) (finding that a reasonable jury could have concluded that plaintiff had a disability, where
she suffered from back pain more than two years after her injury occurred); Castillo v. United
States Internal Revenue Serv., No. 1:13-CV-00517-SKO, 2016 WL 310114, at *8 (E.D. Cal. Jan.
26, 2016) (“declin[ing] to engage in an exhaustive analysis over whether an ankle injury that is
expected to eventually heal is temporary or permanent” because “do[ing] so would contravene
Congress’ intent in defining a disability . . . as an impairment substantially limiting a major life
activity”) (quotations omitted); Werner v. Sturgeon Elec. Co., Inc., No. 3:16-CV-01334-MO,
2017 WL 3473179, at *5-6 (D. Or. Aug. 11, 2017) (concluding that plaintiff’s testimony that his
hand was still impaired after healing from surgery on tendon damage caused by a deep cut was
sufficient evidence for a reasonable jury to find plaintiff disabled).8
Les Schwab also argues that Hicks’ crush fracture does not substantially limit any major
life activity.9 (Def.’s Mot. Summ. J. at 6-7.) The Court disagrees. Of the life activities Hicks lists
8

The ADA Amendments Act of 2008 (the “ADAAA”) was introduced to supercede a
case in which the Supreme Court suggested that temporary impairments do not qualify as
disabilities. Werner, 2017 WL 3473179, at *5. Under the related Equal Employment Opportunity
Commission (“EEOC”) regulations, “effects of an impairment that last fewer than six months
can still be considered substantially limiting . . . .” Id. The Fourth Circuit, the first to review the
ADAAA, held that the EEOC’s “‘expansive definition [of impairment] surely includes broken
bones and torn tendons.’” Id. at *6 (alteration in original) (quoting Summers v. Altarum Inst.,
Corp., 740 F.3d 325, 333 (4th Cir. 2014). In reaching its conclusion, the Werner court
acknowledged that the Ninth Circuit had not yet interpreted the ADAAA, but noted that the
Northern District of California had followed the Fourth Circuit. Id. (citing Barrilleaux v.
Mendocino Cty., 61 F. Supp. 3d 906, 916 (N.D. Cal. 2014).
9

Les Schwab cites as evidence the fact that, when applying for jobs, Hicks did not
indicate that she had a disability or required an accommodation, as well as Hicks’ statement that
she did not need an accommodation. (Def.’s Mot. Summ. J. at 7.) Regarding her job at
Waremart, Hicks explained that the application asked whether she had a disability that would
limit her ability to perform her job duties, which she answered in the negative because the job “is
a bookkeeping position, which is a sedentary position.” (O’Kasey Decl. Ex. 8, at 4.) The other
two jobs Hicks applied for — a “receptionist-type position” at Silverhawk Realty and “opening
new accounts” at D. L. Evans Bank — were also sedentary. (Id. at 18-19.) The fact that Hicks
PAGE 18 – OPINION AND ORDER

as limited, at least standing and walking qualify as “major” under the relevant regulations.10 See
29 C.F.R. § 1630.2(i)(1)(i). Furthermore, considering “the nature and severity of the impairment;
the duration or expected duration of the impairment; and the permanent or long term impact, or
the expected permanent or long term impact of or resulting from the impairment[,]” Hicks’ crush
fracture is substantially limiting. Parks, 2017 WL 2840704, at *4; see also Barrilleaux, 61 F.
Supp. 3d at 916 (holding that plaintiff’s allegations that she “required crutches to walk or
otherwise walks with difficulty due to a [knee fracture] . . . reflect[ed] a substantial impairment
in the major life activity of walking” and thus were sufficient to survive a motion to dismiss).
Hicks’ impairment is a crush or “nutcracker” fracture so severe that Hicks’ bones cannot
be pinned back together. Despite extensive time in an orthopedic boot and physical therapy, the
fracture has not fully healed in almost four years’ time. Nor is the fracture expected to heal in the
foreseeable future.11 The fracture impacts Hicks’ ability to do basic activities such as standing
and walking, as well as certain recreational activities. Finally, the fracture causes Hicks severe
pain.12 The Court finds Hicks’ impairment to be substantially limiting, and therefore it qualifies
as a disability under the ADA.

did not disclose a disability or request an accommodation does not necessarily evidence that
Hicks is not disabled. Rather, it signifies that she did not have a disability that would prevent her
from performing sedentary work.
10

Thus, the Court need not consider whether the other activities Hicks names (i.e., skiing
and dancing) qualify.
11

Les Schwab points out that Dr. Sladich reported on March 31, 2016, that Hicks’
impairment was not permanent and would likely last two to three months. (Def.’s Reply Supp.
Mot. Summ. J. at 10-11; O’Kasey Decl. Ex. 5.) Even had that turned out to be true, Hicks could
still demonstrate a substantial limitation. See 29 C.F.R. § 1630.2(j)(1)(ix) (“The effects of an
impairment lasting or expected to last fewer than six months can be substantially limiting within
the meaning of this section.”).
12

Les Schwab asserts that “Hicks was only occasionally affected by the fracture[,]” citing
her testimony that “some days my foot is fine. There are other days that my foot kills me.”
PAGE 19 – OPINION AND ORDER

B.

Hicks Has Established Disputed Issues of Material Fact.

There remain at least two significant disputes of material fact in this case. First, the
parties dispute whether Les Schwab was aware that Hicks had opened her own credit account
and set her own credit limit months before disciplining her for doing so. Second, the parties
dispute why Les Schwab placed Hicks on seasonal layoff, and later changed her employment
status to part-time following her injury. These factual disputes preclude summary judgment.
1.

Whether Les Schwab Was Aware of Hicks’ Alleged Policy Violation
Months Prior to the Post-Injury Discipline

Hicks alleges that Jensen formally disciplined her shortly after her injury for opening a
customer credit account nine months earlier, of which he was contemporaneously aware. (Am.
Compl. ¶ 17.) Citing Jensen’s deposition testimony (ECF No. 29, Ex. 7), Les Schwab responds
that Jensen disciplined Hicks in December 2015, immediately after learning what she had done.
(Def.’s Mot. Summ. J. at 9.)
Hicks supports her allegation with several facts, including: (1) Hicks’ testimony that
Jensen had known about the account and had placed a credit for tires on it; (2) Jensen’s inability
to dispute Hicks’ testimony regarding the credit to her account; (3) Blackmore’s testimony that a
manager would be able to tell which Les Schwab store an account was for when placing a credit;
and (4) Jensen’s and Cox’s inability to identify a specific policy Hicks had violated by opening
the account. (Id. at 13-14.) Furthermore, Hicks asserts that the timing of the discipline, in relation
to her injury and to Cox instructing Jensen to begin formally documenting any issues with Hicks
and reminding him of Hicks’ workers’ compensation claim, supports her allegation. (Id. at 1415.) In its reply (ECF No. 43), Les Schwab relies on Jensen’s and Cox’s testimony that Jensen
(Def.’s Mot. Summ. J. at 6; O’Kasey Decl. Ex. 8, at 3.) However, “[a]n impairment that is
episodic or in remission is a disability if it would substantially limit a major life activity when
active.” 29 C.F.R. § 1630.2(j)(1)(vii) (emphasis added).
PAGE 20 – OPINION AND ORDER

disciplined Hicks the day he learned of the account and asserts, post hoc, that Hicks violated
provisions of the Code. (Def.’s Reply Supp. Mot. Summ. J. at 2-4.)
Viewing the evidence in the light most favorable to Hicks and drawing all reasonable
inferences in Hicks’ favor, Les Schwab has not demonstrated the lack of a material factual
dispute regarding when Jensen became aware of Hicks’ credit account.
2.

Les Schwab’s Reasons for Placing Hicks on Seasonal Layoff and
Changing Her to Part-Time Status

The parties dispute Les Schwab’s motivations for placing Hicks on seasonal layoff in
December 2015, and later changing her employment status to part-time (which resulted in a loss
of benefits). Les Schwab asserts that it took those actions for legitimate, nondiscriminatory
business reasons: “primarily lack of work and lack of need.” (Def.’s Mot. Summ. J. at 9.)
Specifically, Les Schwab asserts that Jensen transferred Hicks to part-time status
“because he did not need a full-time sales and administrative employee.” (Id.) Les Schwab
further asserts that “[p]art-time employees do not receive medical or other benefits[,]” and “[t]he
only reason [P]laintiff lost her benefits was because she became a part-time employee.” (Id.)
Regarding the December 2015 seasonal layoff, Les Schwab asserts that such layoffs at Les
Schwab are routine “during periods of slow business, typically in the winter[,]” and Hicks
testified she knew she was included in a seasonal layoff. (Id. at 10.) Les Schwab supports its
assertions with citations to the deposition testimony of Jensen, Blackmore, Church, and Hicks.
(Id. at 9-10.)
In her response (ECF No. 40), Hicks sets forth several specific facts demonstrating a
genuine issue for trial. First, she relies on Jensen’s deposition testimony that her attitude — for
which he issued her a second disciplinary write-up — was part of the reason she was laid off. (Pl.
Resp. Mot. Summ. J. at 15.) Second, Hicks points out that she worked three days per week
PAGE 21 – OPINION AND ORDER

during the prior year’s seasonal layoff, whereas she worked zero hours during the 2015-2016
seasonal layoff, despite Jensen’s testimony that the business slowdown was about the same as
the year before. (Id. at 15-16.) Third, Hicks asserts that Les Schwab’s “current rationale” for
Hicks’ zero hours is not credible because Les Schwab has now proffered three inconsistent
explanations: (1) Jensen’s testimony that Hicks’ attitude was part of the reason she was laid off;
(2) Jensen’s, Blackmore’s and Church’s testimony that business was slow; and (3) Heise’s
correspondence indicating that Hicks was placed on medical leave. (Id. at 16 (emphasis
omitted).) Finally, Hicks notes that her layoff “was coupled with a demotion to part-time status,”
causing her to lose her health and retirement benefits, and that she was the only laid-off
employee whose employment status was changed to part-time. (Id.)
The Court finds that Hicks has identified sufficient facts to demonstrate a genuine dispute
of material fact for trial.
C.

The Material Factual Disputes Apply to All of Hicks’ Claims.

Hicks brings federal and state disability claims of discrimination and retaliation. She also
brings state workers’ compensation claims of retaliatory discrimination, as well as failure to
reinstate or reemploy. The disputes of material fact identified above apply to each of Hicks’
claims. Accordingly, summary judgment is not appropriate.
1.

Federal and State Disability Claims: Discrimination (42 U.S.C. §
12112 and O.R.S. § 659A.112) and Retaliation (42 U.S.C. § 12209 and
O.R.S. § 659A.109)

To establish a prima facie case of federal or state disability discrimination, Hicks must
show that “[she] is disabled within the meaning of the ADA[,]” “[she] is a qualified individual
able to perform the essential functions of [her] job with reasonable accommodation[,]” and
“[she] suffered an adverse employment action because of [her] disability.” Allen v. Pac. Bell, 348

PAGE 22 – OPINION AND ORDER

F.3d 1113, 1114 (9th Cir. 2003). Similarly, to establish a prima facie case of disability retaliation
under federal or state law, Hicks must show “involvement in a protected activity,” “an adverse
employment action[,]” and “a causal link between the two.” Coons v. Sec’y of U.S. Dep’t of
Treasury, 383 F.3d 879, 887 (9th Cir. 2004).
Both claims are subject to the burden-shifting framework of McDonnell Douglas Corp. v.
Green, which works as follows: Once Hicks establishes her prima facie case, the burden shifts to
Les Schwab “to articulate some legitimate, nondiscriminatory reason” for its allegedly adverse
actions. 411 U.S. 792, 802 (1973). Then the burden shifts back to Hicks to demonstrate that Les
Schwab’s purportedly neutral reason is pretext for unlawful discrimination. Id. at 804. She may
do so directly, by showing evidence of discrimination, or indirectly, “by showing that the
employer’s proffered explanation . . . is internally inconsistent or otherwise not believable.” Earl
v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112–13 (9th Cir. 2011).
Here, Les Schwab asserts that any adverse employment actions “were taken for business
reasons—primarily lack of work and lack of need.” (Def.’s Mot. Summ. J. at 9.) Hicks responds
that Les Schwab’s proffered reasons are pretextual, and she has identified material factual
disputes that call the proffered reasons into question, as discussed above. Therefore, summary
judgment is not appropriate on Hicks’ federal and state disability discrimination and retaliation
claims. Werner, 2017 WL 3473179, at *6-7 (denying summary judgment where plaintiff
established a genuine dispute of material fact as to why he was fired); Ambrose v. J.B. Hunt
Transp., Inc., No. 3:12-CV-01740-HU, 2014 WL 585376, at *20-21 (D. Or. Feb. 13, 2014)
(same).

PAGE 23 – OPINION AND ORDER

2.

State Workers’ Compensation Claims
a.

Retaliatory Discrimination (O.R.S. § 659A.040)

To establish a prima facie case of retaliatory discrimination under O.R.S. § 659A.040,
Hicks must demonstrate that she “invoked the workers’ compensation system[,]” she was
“discriminated against in the tenure, terms, or conditions of employment[,]” and Les Schwab
discriminated against her because she invoked the workers’ compensation system. Kirkwood v.
W. Hyway Oil Co., 204 Or. App. 287, 293 (2006) (citations omitted). As detailed above, Hicks
has demonstrated that a dispute of material fact exists regarding whether she was, in fact,
discriminated against in the “tenure, terms, or conditions of employment.” Id. Thus, Les Schwab
is not entitled to summary judgment on Hicks’ retaliatory discrimination claim. Duke v. F.M.K.
Const. Servs., Inc., 739 F. Supp. 2d 1296, 1303 (D. Or. 2010) (denying summary judgment on
plaintiff’s workers’ compensation retaliatory discrimination claim where “the record [was]
replete with controverted testimony suitable to submit to an objectively reasonable juror”).
b.

Failure to Reinstate or Reemploy (O.R.S. § 659A.043 and
O.R.S. § 659A.046)

Hicks also brings state workers’ compensation claims under O.R.S. § 659A.043 and
O.R.S. § 659A.046:
Those statutes mandate that, upon demand, a worker who sustains a compensable
injury shall be reinstated to the worker’s former position (if it exists and is
available) or an existing vacant and suitable position if the worker is not disabled
from performing the duties of those positions, ORS 659A.043(1), or reemployed
at another available and suitable position if the worker is disabled from
performing the duties of the worker’s former regular employment, ORS
659A.046.
Lane v. Hood River Cty., No. 08-CV-428-ST, 2009 WL 1662990, at *9 (D. Or. June 11, 2009).
As discussed above, Hicks has demonstrated material factual disputes regarding why Les
Schwab did not reinstate her to her former position following her injury. Therefore, Les Schwab
PAGE 24 – OPINION AND ORDER

is not entitled to summary judgment on Hicks’ failure to reinstate or reemploy claims. See
Jenkins v. Vestas-Am. Wind Tech., Inc., No. 3:12-CV-01758-AA, 2014 WL 1364971, at *4 (D.
Or. Apr. 4, 2014) (denying summary judgment because a factual dispute existed “concerning
whether there may have been an open position for which plaintiff was qualified on or around the
time of his termination[,]” i.e., “a reasonable jury could find that defendant’s proffered nondiscriminatory reason for terminating plaintiff was pretextual”); Werner, 2017 WL 3473179, at
*4 (denying summary judgment where plaintiff “met his burden of citing evidence to support a
finding that [defendant’s] nondiscriminatory explanation [was] pretextual”).
CONCLUSION
For the foregoing reasons, the Court DENIES Les Schwab’s motion for summary
judgment (ECF No. 28).
IT IS SO ORDERED.
DATED this 29th day of August, 2018.

STACIE F. BECKERMAN
United States Magistrate Judge

PAGE 25 – OPINION AND ORDER