Lawson v. Walgreen Co.

Filing 54

OPINION and ORDER - Walgreens's motion for summary judgment 16 is GRANTED in its entirety. Signed on 3/20/09, by Magistrate Judge John V. Acosta. (peg)

20

I N T H E UNITED S T A T E S D I S T R I C T C O U R T FOR T H E DISTRICT OF OREGON

T I N A LAWSON, Plaintiff,

CV.07-1884-AC O P I N I O N AND O R D E R

v.
WALGREEN CO., dba W ALGREENS, an Illinois corporation, Defendant.

A C O S T A , M a g i s t r a t e Judge: Plaintiff Tina Lawson ("Lawson"), filed this action against defendant Walgreen Co., dba Walgreens ("Walgreens"), her prior employer, asserting claims for violation o f both the Oregon Family Leave Act (O.R.S. 659A.150 e t seq.)("OFLA") and the federal Family and Medical Leave Act (29 U.S.C. § 2601 et seq.)("FMLA"), as well as a claim for wrongful discharge. Walgreens moves for summary judgment on all three claims. Because Walgreens did not interfere with

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Lawson's family leave and because its decision to terminate h e r e m p l o y m e n t was n o t b a s e d o n h e r r e q u e s t f o r medical l e a v e u n d e r O F L A a n d F M L A , W a l g r e e n s ' s m o t i o n for s u m m a r y j u d g m e n t i s granted i n its entirety and this case is dismissed with prejudice.'

Backgrollnd
L a w s o n was hired by Walgreens in N o v e m b e r 1998 as an E x e c u t i v e Assistant Manager. ( L a w s o n Dec!.
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I . ) Walgreens p r o m o t e d Lawson to Store M a n a g e r i n S e p t e m b e r 2001 and, in

August, 2004, Lawson became the Store M a n a g e r o f the Walgreens store located at 122 nd and Glisan (the " S t o r e " ) (Lawson Dec!.
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1-2.) A s o f A u g u s t 2 0 0 6 , L a w s o n w a s u n d e r t h e s u p e r v i s i o n o f
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District M a n a g e r D a v i d Royster ("Royster"). (Royster Dec!.

5-6.)

A s Store M a n a g e r , L a w s o n w a s r e s p o n s i b l e for the S t o r e ' s d a y - t o - d a y o p e r a t i o n s . ( R i e w a l d Dec!. Ex. A at 7.) S h e was expected to comply, and ensure the S t o r e e m p l o y e e ' s compliance, w i t h W a l g r e e n s ' s policies and procedures. (Royster Dec!.
~ 4;

Riewald Dec!. Ex. A at 12.) Violation o f

W a l g r e e n s ' s p o l i c i e s and p r o c e d u r e s c o u l d r e s u l t i n d i s c i p l i n e f r o m a v e r b a l w a l ' l l i n g u p t o termination, depending on the circumstances surrounding the violation. (Riewald Dec!. Ex. A at 1314.) L a w s o n was also responsible for correctly p r o c e s s i n g the S t o r e ' s payroll by r e v i e w i n g c o m p u t e r i z e d T i m e a n d A t t e n d a n c e r e c o r d s , w h i c h l i s t s the h o u r s w o r k e d b y e a c h e m p l o y e e , ensUl'ing that the information is correct and forwarding the information to W a l g r e e n s ' s P a y r o l l D e p a r t m e n t for the processing o f direct deposits into e m p l o y e e ' s b a n k accounts. (Royster Dec!.
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8; Riewald Dec!. Ex. A at 7.)
L a w s o n ' s i n i t i a l c o n t a c t s w i t h R o y s t e r w e r e p r o f e s s i o n a l a n d L a w s o n felt t h a t R o y s t e r w a s

' T h e parties have consented to j u r i s d i c t i o n by magistrate j u d g e in accordance w i t h 28 U.S.C. § 636(c)(I). P a g e -2- O P I N I O N AND O R D E R

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supportive. (Lawson Dec!. '12.) In late September o r early October, 2006, L a w s o n informed Royster that s h e was suffering from pain in h e r left foot, that s h e had been diagnosed w i t h p o s t e r i o r tibial tendon d y s f u n c t i o n , and t h a t v a r i o u s forms o f t r e a t m e n t , i n c l u d i n g p h y s i c a l therapy, bracing, c u s t o m orthoses a n d surgery, w e r e available. (Riewald Dec!. Ex. A at 60, 79.) W h e n alternative t r e a t m e n t s did n o t resolve the problem, Lawson decided to proceed w i t h surgery. (Lawson Dec!.
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7 - 8 . ) In

late O c t o b e r , 2006, L a w s o n c o n t a c t e d W a l g r e e n s ' s h u m a n r e s o u r c e s d e p a r t m e n t t o d i s c u s s h e r medical diagnosis and the amount o f disability leave to which s h e w a s entitled. (Lawson Dec!.
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9.)

O n N o v e m b e r 1 , 2 0 0 6 , R o y s t e r v i s i t e d t h e S t o r e for a " w a l k - t h r o u g h , " a c u s t o m a l y p r a c t i c e i n w h i c h the District M a n a g e r and the Store M a n a g e r w a l k through the aisles o f a store while the District M a n a g e r informs the Store M a n a g e r o f problems that need to be corrected. (Lawson Dec!.
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15.) D u r i n g the walk-through, Royster chastised L a w s o n in a " c r o s s a n d irritated tone" for n o t

replacing the Halloween stock w i t h Christmas stock o n the promo aisle. He told L a w s o n t h a t s h e n e e d e d t o " g e t t h i s f i x e d . " ( L a w s o n Dec!.
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16.) Lawson w a s confused by R o y s t e r ' s c o m p l a i n t

because h e had previously t o l d h e r to leave the Halloween candy o n the promo aisle and c o n t i n u e to m a r k the product d o w n until i t w a s sold out. (Lawson Dec!.
'I~

13, 14.) She was also surprised

t h a t Royster had asked h e r to personally " p u t in m a n y h o u r s o f physcial labor" replacing the H a l l o w e e n stock w h e n s h e w a s i n extreme p a i n and planning surgery. (Lawson Dec!. '117.) D u r i n g t h e r e s t o f the w a l k - t h r o u g h , R o y s t e r m o v e d q u i c k l y u p a n d d o w n the a i s l e s d e s p i t e L a w s o n ' s w a l k i n g cast, often leaving L a w s o n hurrying to c a t c h up while Royster waited o r walking the center aisle trying to locate Royster. (Lawson Dec!.
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18.)

ShOltly thereafter, Lawson advised Royster o f h e r decision to p r o c e e d with the surgery a n d t h a t she would need to be o f f w o r k for five and one-hal f months to recuperate. (Lawson Dec!. at '1'1

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9, I I . ) R o y s t e r i n f o r m e d L a w s o n t h a t W a l g r e e n s did n o t l i k e S t o r e M a n a g e r s s c h e d u l e d o u t o f t h e i r Stores between Thanksgiving a n d Christmas (the " H o l i d a y Season"). H e t h e n assured L a w s o n that i f h e r p h y s i c i a n felt t h a t t h e s u r g e r y c o u l d n o t w a i t until 2 0 0 7 , W a l g r e e n s h a d no c h o i c e b u t t o g i v e L a w s o n t h e t i m e o f f d u r i n g t h e H o l i d a y S e a s o n . ( R i e w a l d D e c ! . E x . A a t 63.) L a w s o n w a s a w a r e that Walgreens discouraged employees from scheduling vacation during t h e H o l i d a y Season, u n d e r s t o o d the r e a s o n w h y , a n d f e l t t h a t i t w a s r e a s o n a b l e . ( R i e w a l d D e c l . E x . A at 3 4 , 6 6 . ) L a w s o n elected, a n d h e r physician agreed, t o d e l a y the s u r g e l y u n t i l a f t e r t h e H o l i d a y Season. L a w s o n d i d n o t fill o u t p a p e r w o r k to r e q u e s t family leave b e c a u s e s h e t h o u g h t it w a s p r e m a t u r e . ( R i e w a l d Decl. Ex. A a t 6 5 . ) S h e described h e r c o n v e r s a t i o n s w i t h R o y s t e r as " d i s c u s s i n g o p t i o n s " a n d r e p r e s e n t e d t h a t s h e h a d n o t m a d e a f o r m a l r e q u e s t t o R o y s t e r f o r t i m e off. ( R i e w a l d D e c ! . E x . A a t 86.) H o w e v e r , s h e d i d t h i n k t h a t h e r d i s c u s s i o n w i t h L a w s o n w a s a d e q u a t e n o t i c e o f h e r i n t e n t t o t a k e m e d i c a l l e a v e . ( L a w s o n D e c l . 'il21.) L a w s o n n e v e r p r o v i d e d R o y s t e r w i t h a s t a r t d a t e f o r h e r requested leave o f absence and Royster n e v e r told Lawson t h a t s h e w o u l d not b e allowed t h e take t h e m e d i c a l l e a v e w h e n e v e r h e r s u r g e r y w a s s c h e d u l e d . ( R o y s t e r D e c . ' i l 2 8 ; R i e w a l d Dec!. Ex. A a t 95.) Also o n N o v e m b e r I , 2006, N i c k Bromell, a n Executive Assistant M a n a g e r at the Store ( " B r o m e l l " ) , r e s p o n d e d to a q u e r y f r o m R o y s t e r m a d e t h e p r e v i o u s m o n t h r e g a r d i n g L a w s o n ' s s u p p o r t o f B r o m e l l . Initially, B r o m e l l h a d no c o m p l a i n t s . T h e n , it late O c t o b e r , B r o m e l l b e c a m e c o n c e r n e d a b o u t L a w s o n ' s l a c k o f p r e s e n c e a t t h e S t o r e a n d h i s n e e d to c o v e r f o r h e r i n h e r a b s e n c e o n a n u m b e r o f o c c a s i o n s . ( L a w s o n Dec!. E x . S . ) O n N o v e m b e r 5, 2 0 0 6 , B r o m e l l f o l l o w e d u p

w i t h a l i s t i n g o f the a b b r e v i a t e d h o u r s L a w s o n w o r k e d the p r e v i o u s w e e k . ( L a w s o n Dec!. E x . T . ) R o y s t e n e t u r n e d f o r a second walk-through w i t h W a l g r e e n s ' s Regional M a n a g e r R o b H a s t y

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("Hasty") o n November 9, 2006. (Lawson Dec\.

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23; Riewald Dec\. Ex. F a t 17.) Royster again

w a l k e d so rapidly that Lawson, who was still i n h e r walking cast, w a s unable to keep up with him. Lawson gave her note p a d to Bromell, who participated in the walk-through while Lawson w a s left behind. N e i t h e r R o y s t e r o r H a s t y i n f o r m e d L a w s o n o f t h e c o n c e r n s o r c o m m e n t s t h e y d i s c u s s e d w i t h B r o m e l l d u r i n g the w a l k - t h r o u g h . ( L a w s o n Dec\.
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23.)

On N o v e m b e r 1 0 , 2 0 0 6 , L a w s o n r e v i e w e d t h e S t o r e ' s T i m e a n d A t t e n d a n c e r e c o r d s f o r t h e p r e v i o u s p a y period. H e r r e v i e w r e v e a l e d a d i s c r e p a n c y b e t w e e n the h o u r s w o r k e d a n d t h e h o u r s scheduled. (Lawson Dec!. '139.) She questioned the 9.3 hoUl's worked by Assistant Manager M i n h D a n g ( " D a n g " ) o n N o v e m b e r 7 , 2 0 0 6 , a l l o f w h i c h q u a l i f i e d as o v e r t i m e h o u r s d u e t o t h e f a c t t h a t D a n g records showed that he worked a total o f 52.05 hours during that pay period. (Royster Dec!.
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9.) After discussing the issue w i t h Brommel, who could not confirm that D a n g worked on

N o v e m b e r 7, Lawson deleted the 9.3 hours for that day without speaking to Dang. (Royster Dec\.
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10; Riewald Dec\. Ex. A at 41,50-51; Lawson Dec\.

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41-42.)

The next day, B r o m m e l informed Lawson that he thought D a n g had, in fact, worked o n N o v e m b e r 7, 2006. Lawson then reentered D a n g ' s 9.3 hours for that day under Code 37, w h i c h was generally used to indicate hoUl's not reported for an employee in a previous pay period, rather than simply reentering the 9.3 hoUl's for November 7 , 2 0 0 6 . (Riewald Dec\. Ex. A at 48; Lawson Dec!.
~'142-43.)

A s a result, D a n g w a s not paid overtime for the 9.3 hoUl's he worked o n N o v e m b e r 7,

2006. (Royster Dec\. ~ 12.) Additionally, L a w s o n ' s actions prevented the 9.3 hoUl's from showing
as overtime for the Store o n the weekly reports reviewed by Royster, which made the Store appear more profitable to her supervisor, Royster. (Royce Dec!.
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16.) Lawson did not discuss o r e x p l a i n

h e r a c t i o n s a t t h i s t i m e w i t h e i t h e r D a n g 01' R o y s t e r e v e n t h o u g h W a l g r e e n s ' s p o l i c y r e q u i r e d t h a t

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Dang be notified o f any changes to his time card. (Royster Dec!. ~ 13; R i e w a l d D e c ! . Ex. A at 43-44; D e f s . Mot. for Summ. 1. Ex. H at I . ) B o t h D a n g a n d Lawson signed D a n g ' s time card w i t h incorrect coding for the 9.3 hours w o r k e d by D a n g o n N o v e m b e r 7, 2006. (Lawson Decl.
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47.)

Dang relied o n Lawson to be accurate and to c h e c k w i t h him before m a k i n g any changes to his time card. (Dang Dec!.
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4.)

F o r various reasons, 2 Royster questioned the total employee w o r k hours reported for t h e Store during the p a y p e r i o d e n d i n g N o v e m b e r 10, 2 0 0 6 , a n d contacted L a w s o n to discuss his concerns. (Lawson Dec!. ~ 44.) Lawson a t t e m p t e d to e x p l a i n the discrepancies in the payroll to Royster, w h o r e c o m m e n d e d t h a t L a w s o n s u b m i t a " f i x - i t " t i c k e t t r a n s f e r r i n g r e s p o n s i b i l i t y for r e s o l v i n g t h e d i s c r e p a n c i e s t o the p a y r o l l d e p a r t m e n t . T h e payroll d e p a r t m e n t d i s c o v e r e d t h a t o n e o f L a w s o n ' s E x e c u t i v e A s s i s t a n t M a n a g e r s h a d i m p r o p e r l y c o d e d p r o m o t i o n a l b o n u s m o n e y as h o u r s w o r k e d , corrected the errol' and, as a result, lowered the n u m b e r o f w o r k hours attributed to the Store d u r i n g t h e r e l e v a n t pay period. H o w e v e r , R o y s t e r r e m a i n e d c o n c e r n e d a b o u t the s m a l l n u m b e r o f o v e r t i m e hours reported and asked the Loss Prevention D e p a r t m e n t to review the S t o r e ' s T i m e and Attendance reports for the p a y period. (Royster Dec!.
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17.)

B r o m e l l also b e c a m e c o n c e r n e d a b o u t t h e

discrepancies i n D a n g ' s payroll for this p a y period and m a d e his o w n c o m p l a i n t to the Loss P r e v e n t i o n Department. ( R i e w a l d Dec!. Ex. D at 6.) A s p a r t o f t h e i r i n v e s t i g a t i o n o f L a w s o n ' s payroll d i s c r e p a n c i e s , L o s s P r e v e n t i o n e m p l o y e e s Shannon Humphrey ("Humphrey") a n d Carole Watson-Stover ("Watson-Stover") reviewed the

2 0 n e o f t h e r e a s o n s R o y s t e r q u e s t i o n e d t h e n u m b e r o f o v e r t i m e h o u r s r e p o r t e d in t h i s p a y period f o r t h e Store was b e c a u s e h e e x p e c t e d to s e e a lot o f overtime hours w o r k e d to help p r e p a r e the Store for the walk-through by Hasty. Apparently, Royster did n o t discuss this issue w i t h Lawson.
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Store's Punch Audit Trail and D a n g ' s time card. 3 (Humphrey Dec!. ~ 3; Watson-Stover Decl. ~ 3.) Humphrey and Watson concluded that Lawson had violated Walgreens's payment procedures i n three different instances. First, Lawson improperly manipulated the payroll system when she deleted the 9.3 hours that Dang worked on November 7, 2006, without talking to Dang and then re-entered the time as time worked the previous pay period. Second, Lawson failed to pay Dang the 9.3 hours o f overtime he was entitled to. Third, Lawson paid two employees (Dang and Vanessa Frank) for two personal holidays they did n o t take in December 2005 without prior approval by a company vice-president. (Humphrey Dec!. 'I~ 4-6; Watson-Stover'I'1 4-6.) Humphrey and Watson-Stover met with Lawson on December 4, 2006, to discuss their findings and to allow her to explain her actions. Lawson admitted that she deleted D a n g ' s 9.3 hours, used Code 37 to reenter the time, and never paid Dang his overtime, but she did not explain h e r conduct to the satisfaction o f Humphrey and Watson-Stover. Lawson described h e r actions as unintentional conduct and a "mistake." (Humphrey Decl. 'I~ 7-8; Watson-Stover Decl. ~~ 7-8.) Humphrey and Watson-Stover exited the meeting to b r i e f Royster on the results o f t h e i r investigation and Lawson's response to their questions. Watson-Stover and Royster then gave Lawson another chance to explain her actions. A t the end o f the meeting, Royster suspended Lawson pending his decision on the appropriate discipline. (Watson-Stover Decl. '19; Royster Dec!. ~ 18.)

3Dang's time card was apparently provided by Bromell in response to a request from Humphrey. With the time card was an summary from Bromell with his explanation o f the discrepancies. (Lawson Decl. Ex. U.) Lawson disputes the accuracy o f B r o m e l l ' s explanation. With the exception o f L a w s o n ' s payment to Dang for unused personal holidays in December, which Lawson does not dispute, it is evident from the violations listed b y Humphrey and Watson-Stover that B r o m e l l ' s explanation was n o t relied upon in the investigation. Also, it appears that B r o m e l l ' s explanation was correct with the only error being his reference to special holidays as vacation days, which he uses interchangeably. (Riewald Decl. Ex. D at 22.) In any event, the court need not further address the explanation, or L a w s o n ' s objections thereto, in this Opinion. Page -7- OPINION AND O R D E R {SIB}

On December 7 , 2 0 0 6 , Humphrey and Royster m e t with Lawson and gave her the opportunity t o r e s i g n o r b e t e r m i n a t e d . L a w s o n r e f u s e d t o resign and w a s t e r m i n a t e d t h a t s a m e day b a s e d o n R o y s t e r ' s b e l i e f that L a w s o n h a d v i o l a t e d W a l g r e e n s ' s p a y m e n t p r o c e d u r e s o n t h r e e d i f f e r e n t occasions as described above. ( H u m p h r e y " 9: Royster Dec!. 'I~ 19-21, 27.) Royster felt that L a w s o n ' s violations warranted termination because it left Walgreens open to legal claims for v i o l a t i o n o f w a g e l a w s f o r u n p a i d o v e r t i m e w a g e s , p e n a l t i e s , a t t o r n e y fees a n d c o s t s . H e w a s also c o n c e r n e d t h a t L a w s o n ' s a c t i o n s c o u l d d a m a g e w o r k p l a c e m o r a l e a n d i r r e p a r a b l y h a r m the t r u s t relationship between Walgreen and its employees. (Royster Dec!. " " 2 3 - 2 4 . ) Royster had discussed h i s d e c i s i o n w i t h H u m p h r e y a n d W a t s o n - S t o v e r who c o n f i r m e d t h a t o t h e r W a l g r e e n s ' s m a n a g e r s h a d been t e r m i n a t e d for s i m i l a r i n s t a n c e s o f m a n i p u l a t i n g p a y r o l l r e c o r d s , a n d w i t h o u t v e r b a l , written, o r final warnings. (Riewald Sur-Response Dec!. Ex. 2 at 3-4.) At the meeting, Lawson mentioned to Royster her pending request for medical leave. She also asked for the documentation on w h i c h her termination w a s based. Royster did n o t respond to either comment. ( L a w s o n Dec!.
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52, 59.) Lawson admitted that her actions could look suspicious to Walgreens and that i f she had

engaged in them willfully, her termination would be justified. (Riewald Dec!. Ex. A a t 56-58.) H o w e v e r , u n d e r the c i r c u m s t a n c e s , L a w s o n t h o u g h t t h a t w r i t t e n d o c u m e n t a t i o n o f h e r a c t i o n s w a s the appropriate form o f discipline. (Marshall Dec!. Ex. DD at 5.) After her termination, Lawson contacted her physician to schedule a date for her surgery. B y l e t t e r d a t e d F e b r u a r y 1 3 , 2 0 0 7 , P l a i n t i f f w a s i n f o r m e d t h a t h e r surgery w a s s c h e d u l e d o n M a r c h 7 , 2 0 0 7 . (Riewald Dec!. Ex. A at 87.)

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Legal Standard
Rule 56 o f the Federal Rules o f Civil Procedure allows the granting o f summary judgment: i f the pleadings, the discovery and disclosure materials o n file, and any affidavits s h o w that there is no genuine issue as to any material fact and that the movant is entitled to j u d g m e n t as a matter o f l a w . FED. R. CIV. P. 56(c). T h e requirement is that there be " n o genuine issue o f material fact."

Pocatello Educ. Ass'n. v. Heideman, 504 F . 3 d l 0 5 3 (9th Cir. 2007).
T h e m o v a n t h a s the i n i t i a l b u r d e n o f e s t a b l i s h i n g t h a t n o g e n u i n e i s s u e o f m a t e l ' i a l f a c t e x i s t s o r that a material fact essential to the n o n m o v a n t ' s claim is absent. Celotex Corp. v. C a t r e l f , 4 7 7

u.s.

317, 322-24 (1986). O n c e the movant has m e t its burden, the onus is o n the noml1ovant to

establish that there is a genuine issue o f material fact. Id. at 324. In order to meet this burden, the n o n m o v a n t " m a y n o t rely m e r e l y o n a l l e g a t i o n s or d e n i a l s i n its o w n p l e a d i n g , " b u t m u s t i n s t e a d " s e t out specific facts showing a genuine issue for trial." FED. R. CIY. P. 56(e); Hernandez v. Spacelabs

Medical, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003) (nonmoving party " c a n n o t defeat summary
j u d g m e n t with allegations in the complaint, o r w i t h unsupported conjecture o r conclusory statements."). A n issue o f f a c t is material if, under the substautive law o f the case, resolution o f the factual dispute could affect the o u t c o m e o f the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Factual disputes are genuine i f they "properly can be resolved only by a finder o f fact because they may reasonably be resolved i n favor o f either party." Id. at 250. On the other hand, i f after the court has drawn all reasonable inferences in favor o f the nonmoving party, "the evidence is merely colorable, o r is n o t significantly probative, summary j u d g m e n t may be granted." Jd. at 24950 (citations omitted).

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Discussion

A. Interference with Family Leave Lawson alleges i n her First Claim for R e l i e f that Walgreens interfered with her right to take medical leave under OFLA. Her Second Claim for R e l i e f asserts the same claim under FMLA. FMLA and OFLA allow eligible employees to take twelve workweeks o f l e a v e pel' year to care for their own or a family m e m b e r ' s serious health condition. 29 U.S.C. § 2612(a)(l)(D) (2007); O.R.S. 659A.162(1) (2007). Employers are n o t allowed to deny or in any way interfere with an employee's right to take leave under either FMLA or OFLA. 29 U.S.C. §2615(a) (2007); O.R.S. 659A.183(1) (2007). The Oregon legislature specifically directed that OFLA "shall be construed to the extent possible in a manner that is consistent with any similar provisions o f [FMLA.]" O R S . 659A. I 86(2) (2007). Accordingly, the court will address L a w s o n ' s First and Second Claims for R e l i e f together. To prove a claim for interference with a statutory right to medical leave, an employee must establish that: 1) they are an eligible employee; 2) their employer is an eligible employer; 3) the employee was entitled to take medical leave; 4) the employee gave propel' notice o f his intent to take medical leave; and 5) the employer took actions which denied the employee the right to take the medical leave. Price v. Multnomah County, 132 F. Supp. 2d 1290, 1297 (D. 01'. 2001). Depriving an employee o f the ability to take medical leave is considered retaliation under FMLA. The employers' intent is not relevant - the only question is whether the employce was denied rights to which they were entitled. Id. However, employees who avail themselves o f their rights under FMLA are not entitled to greater rights to benefits or conditions o f employment than other employees. 19 U.S.C. § 2614(a)(3)(B) (2007); 29 C.F.R. §825.216 (2008). Where an employer can esk'lblish that they would have taken the same action even i f the employee had not asserted their P a g e -10- O P I N I O N A N D O R D E R

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rights under FMLA, a claim for interference will not stand. Therefore, an employee must establish, by a preponderance o f the evidence, that their claim for benefits u n d e r FMLA was a negative factor in their e m p l o y e r ' s decision to terminate them. Peterson v. Tri-Collnty Aletro. Transp. Dist.

0/

Oregon, CV No. 06-1 828-ST, 2008 W L 723521 at *9 (D. Or. March 1 4 , 2 0 0 8 ) (citing Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001). This may be accomplished with
the use o f either direct o r circumstantial evidence. Bachelder, 2 5 9 Or. at 1125. Here, Lawson claims that Walgreens interfered with her right to take leave u n d e r F M L A and O F L A by terminating her before she c o u l d schedule and take leave related to her knee surgery. Walgreens argues that it w a s justified in terminating Lawson based o n her violations o f W a l g r e e n s ' s payroll p r a c t i c e s o n m o r e t h a n o n e o c c a s i o n . An employee is entitled to medical leave under both F M L A and OFLA only while they are in the employ o f a qualified employer. D u r i n g the time Lawson was employed by Walgreens, she had R o y s t e r ' s approval to schedule h e r surgery anytime her physician felt it w a s necessary. L a w s o n w a s t h e o n e w h o d e c i d e d t o p o s t p o n e h e r s u r g e r y until a f t e r t h e H o l i d a y S e a s o n - a n d , i n f a c t , d i d n o t contact her physician to schedule the surgery until after she was terminated. Accordingly, at the time she was terminated, Lawson had W a l g r e e n ' s consent to take medical leave under F M L A for her knee surgery. Lawson, however, argues that Walgreens interfered with h e r r i g h t to take medical leave w h e n it terminated her. L a w s o n ' s argument seems premised o n the notion that once an employee h a s expressed an intent to t a k e medical leave u n d e r F M L A and OFLA, the employer is obligated to maintain their employment until after the medical leave has been taken regardless o fw h e n that leave is scheduled, whether o r not the employee is satisfactorily performing their j o b duties, o r whether

P a g e -11- OPINION A N D O R D E R

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or not that employee has violated the e m p l o y e r ' s policies. U n d e r this theory, for example, any female who indicated to her employer that she intended to take time o f f to have children a t s o m e p o i n t in the future would b e guaranteed employment until after she gave birth to a child, and any employee who mentioned an intent to have surgery in the future would be insulated f r o m any consequences o f violating the employers' policies. Such an outcome is contrary to what Congress intended in enacting FMLA. B o t h FMLA and OFLA specifically provide t h a t an employee who takes medical leave is not e n t i t l e d t o " a n y r i g h t , b e n e f i t , or p o s i t i o n o f e m p l o y m e n t o t h e r t h a n any right, b e n e f i t , or p o s i t i o n to w h i c h the employee would have been entitled had the employee not taken the leave." 29 U . S . c . §2614(a)(3)(B) (2007); O.R.S. 659A.171 (3)(b) (2007). Although this language specifically applies t o employees returning from medical leave, the purpose and intent o f FMLA and O F L A squarely supports the conclusion that it applies equally to employees who have requested leave to begin o n s o m e date in the future. In other words, e v e n though a n employee has requested future, or is c u r r e n t l y on, m e d i c a l l e a v e u n d e r F M L A o r O F L A , t h e y m u s t c o n t i n u e t o p e r f o r m t h e i r j o b d u t i e s to their employers satisfaction and continue to comply w i t h the e m p l o y e r ' s policies, o r be subject to discipline, including termination. Lawson implicitly acknowledges this interpretation because she a r g u e s that s h e s h o u l d h a v e r e c e i v e d a l e s s e r f o r m o f d i s c i p l i n e i n s t e a d o f b e i n g t e r m i n a t e d , n o t t h a t Walgreens could not have disciplined her at all o r would have been retaliating against her i f it did. In any event, i f an employer has justifiable grounds to terminate an employee, the m e r e fact that the e m p l o y e e h a s i n d i c a t e d a n i n t e n t t o t a k e leave u n d e r F M L A o r O F L A d o e s n o t p r e v e n t the e m p l o y e r from t e r m i n a t i n g t h a t e m p l o y e e . I f i t w e r e o t h e r w i s e , t h e n s u c h a n e m p l o y e e w o u l d enjoy a r i g h t o r benefit that his o r h e r co-workers w o u l d not.

P a g e -12- OPINION A N D O R D E R

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Other judges in this district have taken the same position and allowed a n employer to terminate an employee despite the fact the employee had requested or was on medical leave a t the time o f the termination. In Leiford v. Kinko's, Inc., CV No. 03-181-HU, 2004 U.S. Dist. LEX1S 15960 (D. Or. Aug. 9, 2004), Judge Hubel granted summary judgment to the employer o n the employee's interference and retaliation claims under OFLA finding that the employee's failure to abide by the employer's policies justified the termination. H e noted the absence o f a causal connection between the medical leave and the termination and found that the employer had articulated bona-fide reasons for terminating the employee. lei. at *23. Judge Hubel refused to give the employee "preferential treatment over someone who had not taken leave." Id. at 25. The next year, Judge Mosman determined that a n employee's violation o f a last chance agreement by taking leave without following the employer's requirements gave the employer a lawfhl basis for terminating the employee despite the fact that the employee had applied for intermittent leave under the Act. 4 Kolar v. Unified Western Grocers, Inc., CV No. 04-1593-MO, 2005 U.S. Dist. LEX1S 40538 (D. Or. Dec. 1 , 2 0 0 5 ) . More recently, Judge Stewart held that a n employee's allegation that she was transferred due to her need to take care o f her family, a statement which she believed to be related to her taking FMLA leave to care for her father, created a genuine issue o f fact on the issue o f whether her employer's actions interfered with her right to benefit under FMLA. Lucke v.
1I1ultnol1lah County, C V N o . 06-1 I 49-ST, 2008 WL 4372882 at *42-42 (D. Or. Sept. 22, 2008). On

the other hand, the employer's statement that she could not perform the essential functions o f h e r j o b and that she should resign or be faced with termination made at a meeting held the day the employee

4It is unclear whether the employee was asserting a retaliation or interference claim in this
case. P a g e -13- O P I N I O N A N D O R D E R
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returned from two weeks o f FMLA, leave did n o t support h e r FMLA claim. "Nothing other than timing in [any] way relates this meeting to the taking o f F M L A leave." !d. at *43. Here, Walgreens offers evidence that it terminated Lawson for her improper handling o f t h e S t o r e ' s payroll o n two occasions. L a w s o n ' s actions were investigated by two members o f improperly

Walgreens's Loss Prevention Department, who determined that Lawson had

manipulated the payroll system in November 2006 when she deleted D a n g ' s hours and then reentered them in a way that deprived him o f overtime. Specifically, Lawson was found to have violated Walgreens's: 1) Ethics Policy Statement, which provides that all employees would be disciplined, up to and including termination, for making false, artificial or misleading entries in the company records or failing to pay overtime pay as required by the wage and hour laws; 2) Time Card Policy, which provides that " [e]mployees are to be paid according to the hours on their time record"; 3) Transaction Maintenance Policy, which prohibits an employee from altering an employee's time records without the approval o f both the Store Manager and notes that anyone increasing or decreasing the hours paid an employee may be subject to termination; and 4) Discipline Policy, which provides employees will be terminated i f they "allow[ed] or requir[ed] an employee to work hours other than those that appear on the employee's time card." (Humphrey Dec!. at ~'14-5). The investigators also found that Lawson violated Walgreens's Pay in Lieu o f Vacation Policy, which prohibits the payment o f accrued vacation hours unless the employee is actually on vacation without the written approval o f a Walgreens vice president, in December 2005, when she paid Dang and another employee for accrued vacation on days they were not scheduled to work. (Humphrey Dec!. at ~ 6). There is no evidence that either Humphrey or Watson-Stover knew o f L a w s o n ' s intent to take medical leave in the near future and their determination could in no way be related to L a w s o n ' s P a g e -14- O P I N I O N A N D O R D E R

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request for FMLA leave. Royster made the decision to terminate Lawson based o n the results o f the investigation. Royster was aware o f L a w s o n ' s intent to take FMLA leave early in 2007. Therefore, the question is whether, as Lawson argues, t h e r e i s sufficient evidence that Royster's decision was based, to some d e g r e e , o n L a w s o n ' s r e q u e s t f o r F M L A benefits. Royster states, unequivocally, that "Ms. L a w s o n ' s communications with me about her eventual need for time o f f work to have surgery and to recuperate from that surgery had nothing to do with m y decision to terminate her employment." (Royster Dec!.

'1 26.)

This statement is

consistent with the evidence. First, Lawson does n o t dispute that she violated Walgreens's policy, thus establishing this key fact. Next, Royster's decision to terminate Lawson followed and was based on the results o f the investigation by Humphrey and Watson-Stover, his belief that Lawson knowingly committed the violations (a belief supported by the evidence that Lawson had five years o f managerial experience in three different stores), his discussion with Humphrey and Watson-Stover regarding the proper discipline in this situation, and his understanding o f Walgreens's policy o n proper payroll practices. Lawson does not contest these statements, leaving unchallenged b y any evidence that Royster's decision to terminate Lawson for her violation o f Walgreens's payroll practices was not based, in any way, on L a w s o n ' s notice o f her intent to take FMLA leave. Furthermore, Lawson admits that she engaged in the conduct found to violate Walgreens's policies, that her conduct could be viewed as suspicious, that Walgreens had terminated other employees for engaging in improper payroll practices, and that she should have been disciplined in some manner. Her real dispute is with the level o f discipline imposed: she argues that termination was too severe in light o f the fact that her violations were unintentional mistakes and that the real Page -15- OPINION AND ORDER

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reason for her termination was her request for leave under the FMLA. While Lawson has no direct evidence that the decision t o terminate h e r was based, at least in pmt, on her intent to take extended medical leave in the n e a r future, she argues that her perception o f R o y s t e r ' s change in attitude toward her after she requested FMLA leave is evidence that h e terminated her because she intended to take s u c h leave. S h e a s s e r t s t h a t R o y s t e r ' s t r e a t m e n t o f h e r d u r i n g t h e N o v e m b e r w a l k - t h r o u g h s , h i s d e m a n d t h a t s h e c h a n g e o u t the H a l l o w e e n s t o c k a n d h i s r e q u e s t t o B r o m e l l t h a t he p r o v i d e R o y s t e r with n e g a t i v e c o m m e n t s a b o u t L a w s o n , s u p p o r t s t h i s claim. L a w s o n c o m p l a i n s that Royster, a n d t h e n R o y s t e r a n d H a s t y , w a l k e d t o o q u i c k l y d u r i n g t h e walk-throughs and d i d n ' t wait for Lawson to catch up. At t h e outset, the court notes that while Lawson advised Royster in late September o r early October o f 2 0 0 6 , o f her medical condition and various forms o f treatment, only one o f w h i c h was surgery, there is no evidence that she took o r r e q u e s t e d F M L A l e a v e b e f o r e s h e a d v i s e d R o y s t e r o n N o v e m b e r I , 2 0 0 6 , a f t e r t h e first w a l k through, that she had elected to have surgery and would need to five and o n e - h a l f months o f F M L A leave. Lawson stated that she contacted W a l g r e e n s ' s human resources department in late October to discuss her proposed reconstructive surgery but that she d i d n ' t advise Royster o f her decision to have the surgelY until " o n o r shortly a f t e r N o v e m b e r 1." (Lawson Dec!. a t ~'19-11.) Therefore, Royster w a s unaware o f L a w s o n ' s request for FMLA leave at the t i m e o f the first walk-through and his treatment o f h e r at that t i m e c a n not reasonably b e attributed to her request. In any event, Lawson h a s failed to present evidence that Royster and H a s t y ' s speed during the N o v e m b e r w a l k - t h r o u g h s w a s a n y g r e a t e r t h a n i n h e r s t o r e o r a n y o t h e r s t o r e a t a n y o t h e r time.

n appears that the only reason Lawson was having trouble keeping u p was that she was wearing a
w a l k i n g c a s t a n d w a s n o t a b l e t o w a l k as f a s t as s h e n o r m a l l y w o u l d . L a w s o n a d m i t s t h a t H a s t y

P a g e -16- OPINION A N D O R D E R

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visited numerous stores during his trips to Portland and she concedes it was likely he needed to progress rapidly through the Store to allow h i m to visit other stores that day. She offers no evidence that on the two occasions she cites, Royster behaved differently than he had on previous walkthroughs at her store or any other store. The court finds that the speed o f the November walkthrough's is not sufficient evidence, i f evidence at all, that Royster held animus toward Lawson because she had requested FMLA leave. Lawson asserts that Royster's order that the Halloween stock be replaced with Christmas stock during the first walk-through is additional evidence that Royster's attitude toward her had changed. Lawson stated that she interpreted Royster's direction to "get this fixed" to be an order that she personally make the change despite the fact that she was working in extreme pain. Royster's d i r e c t i o n m e r e l y p u t L a w s o n i n c h a r g e o f m a k i n g s u r e t h e c h a n g e i n s t o c k was m a d e . R o y s t e r d i d not tell Lawson to change out the stock herself; rather, that was a n assumption that Lawson made. In fact, Royster did not intend for Lawson to personally change out the stock but to merely oversee the project and utilize s t a f f members to complete the work, consistent with her position as Store Manager. (Royster Reply Dec!. ~~ 8-9.) Again, this is not evidence that Royster fclt any differently toward Lawson due to her request for F M L A leave or that his actions were based on that request. Finally, Lawson argues that Royster asked Bromell to provide him with negative comments a b o u t Lawson. R o y s t e r a p p a r e n t l y m a d e this r e q u e s t o f B r o m e l l s o m e t i m e i n O c t o b e r 2 0 0 6 . R o y s t e r would not have been aware o f L a w s o n ' s intent to take FMLA leave for her foot surgery a t t h i s time, so the request could not have been related to FMLA benefits. Also, Royster explained that both he, as District Manager, and Lawson, as Store Manager, were responsible for training Eromell and that his questions o f Bromell about the support he was getting were intended to assist in training o f P a g e - 1 7 - OPINION A N D O R D E R
{SIB}

Bromell, not as a review o f L a w s o n ' s performance. (Royster Reply Dec!. '111 2-5.) There is no evidence that Royster considered any information that he received from Bromell in response to his question i n making his decision to terminate Lawson. In fact, Royster specifically denies that he considered Bromell' s communications in deciding to terminate Lawson, and Lawson presents no e v i d e n c e t h a t c a l l s R o y s t e r ' s denial into question. The court finds that Lawson has failed to establish that Royster altered his treatment of, or had any animus against Lawson because she advised him o f her decision to have surgery and take F M L A leave. The record before the court is void o f any direct or circumstantial evidence that Royster considered Lawson's request for FMLA leave in making his decision to terminate her for h e r violations o f W a l g r e e n s ' s payment policies, at least some o f which justified discipline up to and including termination. Accordingly, the court finds that Lawson has failed to created a genuine issue o f material fact with regard to Royster's reasons for terminating Lawson and that Walgreens is entitled to summary judgment o n L a w s o n ' s FMLA and OFLA claims. In its reply brief, Walgreens offered as comparators six Walgreens's employees who were terminated, or asked to resign, for violations o f W a l g r e e n s ' s payroll policies between June 2006 and July 2008. Royster testified at his deposition that he was aware at the time he terminated Lawson that Walgreens had terminated other store managers for payroll manipulation, b u t n o t that he was a w a r e o f t h e s e six s p e c i f i c i n d i v i d u a l s o r t h e c i r c u m s t a n c e s s u r r o u n d i n g t h e i r t e r m i n a t i o n s . ( R i e w a l d Sur-Response Dec!. Ex. 2 at 305.) Because there is no evidence that Royster relied on, or was even aware of, these comparators at the time he made his decision to terminate Lawson, this evidence is not crucial to the c o u r t ' s resolution o f the primary issue before the court - whether Royster considered L a w s o n ' s request for FMLA when deciding to terminate Lawson for her violations o f P a g e - 1 8 - OPINION A N D O R D E R

{SIB}

Walgreens's payroll practices. However, the comparator evidence offered by Walgreens provides more evidence that R o y s t e r ' s decision to terminate was not in any way related to L a w s o n ' s request for medical leave u n d e r the FMLA and was, as Walgreens argues, consistent w i t h its past efforts to e n f o r c e its payroll p o l i c i e s . W a l g r e e n s o f f e r e d the f o l l o w i n g c o m p a r a t o r e v i d e n c e : Store Manager A. Smith from Gresham, Oregon, w a s separated from employment o n June 1 9 , 2 0 0 6 , for designating certain food merchandise as " t r a s h " in violation o f 1506 policy to avoid cost o f t h e payroll that w o u l d normally b e required to handle a n d s t o c k t h e m e r c h a n d i s e properly; Store Manager W. Hackman from McMinnville, Oregon, w a s separated from employment o n September 15,2006, for attempting to hide payroll hours by charging sick and overtime hours to an unopened store; Employee C. Chapman from Portland, Oregon, was separated from employment o n October 2 7 , 2 0 0 6 , for dishonesty and submission o f t w o hours o f sick pay o n her ti me card without approval when h e r tardiness to work was not related to an ilIness; Store Manager L. E m e r s o n from Lakewood, Washington, was separated from e m p l o y m e n t o n F e b r u a r y 2 0 , 2 0 0 7 , for m a n u a l l y p u n c h i n g e m p l o y e e s o u t f o r l u n c h e s n o t taken to reduce store payroll; Store Manager M. Trzebiatowski fimn Seattle, Washington, w a s separated from employment o n February 23, 2007, for manually entering excessive lunch times into t h e t i m e k e e p i n g s y s t e m w h e n t h e r e w e r e m i s s e d p u n c h e s w i t h o u t v e r i f y i n g the a c c u r a c y o f his e n t r i e s w i t h t h e e m p l o y e e s ; a n d Store Manager M. Bernardi fi'om Spokane, Washington, was separated from employment o n July 30, 2008. Bernardi was given the option o f resigning in lieu o f t e r m i n a t i o n for a p a y r o l l - r e l a t e d p o l i c y v i o l a t i o n . B e r n a r d i had a l l o w e d h o u r l y employees to clock o u t prior to holding store meetings and for meeting w i t h employees w h i l e t h e y were off-the-clock. (Royster Reply Dec!.
~15.)

I n response, L a w s o n offered h e r o w n c o m p a r a t o r - D i s t r i c t M a n a g e r

W e n d y Burg, who deleted two hours from employee C. C h a p m a n ' s time card without the e m p l o y e e ' s approval.

P a g e - 1 9 - OPINION A N D O R D E R

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Lawson argues that Walgreens's comparators are n o t relevant becauses:

I) Royster's

subjective b e l i e f that Lawson should be terminated is not the propel' standard for causation; 2) Royster did not rely on any o f the comparators when he made the decision to terminate Lawson; 3) a similarly situated manager who was not terminated raises a factual issue; and 4) the comparators offered b y Walgreens are not similarly situated. First, the question before the court is whether Royster considered L a w s o n ' s request for FMLA leave in his decision to terminated her. The fact that Walgreens has terminated other Store Managers for conduct similar to L a w s o n ' s supports Walgreens's assertion it was justified i n terminating Lawson for her violations o f Walgreens's policies and that her request for FMLA leave was not considered in making the decision to terminate Lawson. As t o L a w s o n ' s second object ion, Royster indirectly considered comparator evidence w h e n he confirmed with Humphrey and Watson-Stover that Walgreens had fired other managers who had committed the same 01' similar violations o f policy. In her fourth argument, Lawson generally argues that the comparators must hold similar j o b s , display similar conduct, and be similarly situated in all respects to be propel' comparators. In light o f this argument, L a w s o n ' s comparator, who was a District Manager dealing directly with a store employee, as wel1 as the store employee i n that scenario, are not similarly situated to Lawson, who was a Store Manager dealing with employees over which she had direct supervision. Accordingly, L a w s o n ' s third argument is without merit. Lawson offers specific objections to each o f the remaining five comparators. She objects to the use o f Smith on the grounds that he was terminated for intentional1y disposing o f sellable merchandise, not payroll violations. However, the reason Smith gave for his actions was to save the company money by saving on payroll for employees who would have needed to handle the merchandise. Lawson argues that Hackman's termination is dissimilar in that it was based o n h e r P a g e - 2 0 - OPINION A N D O R D E R

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intentional charging en';ployee time to another store on multiple occasions to hide payroll. The record shows that Royster considered L a w s o n ' s violations to be intentional and for the purpose o f hiding overtime hours to make the Store appear more profitable, but the court acknowledges that while Lawson was found to have engaged wrongful conduct on more than one occasion, she did not engage in such conduct with the same regularity as Hackman. With regard to Emerson, Lawson attempts to distinguish the conduct by noting that Emerson engaged in a widespread practice o f clocking out employees for lunch, thereby shorting the employees' pay. Again, while L a w s o n ' s violations were not found to be widespread, they did occur on more than one occasion and resulted in an employee not receiving overtime pay to which he was entitled. The court agrees that Trezebiatowski's failure to pay an employee the correct salary for nine months and his entering longer lunch hours, thereby shorting employee's pay on almost 90 different occasions, seems o f a different character. However, the actions o f both Lawson and Trezebiatowski resulted in employees not receiving pay they were entitled to and every other comparator Walgreens presented w a s fired for payroll violations similar to Lawson's. That a single comparator's violations appeal' to have been different is not evidence sufficient to generate a genuine issue o f material fact on this point. Finally, the court rejects Lawson argument that B e r n a r d i ' s requiring employees to attend meetings when they were off-the-clock is dissimilar to L a w s o n ' s conduct. The report reveals that Bernardi had two employee clock out prior to attending a store meeting, resulting in the employee n o t being paid for their time. This conduct i s virtually identical to that o f Lawson. In short, while some o f the comparators are not sufficiently similar to Lawson to be relevant, for the most part, the type and extent o f the wrongful conduct o f the comparators supports Walgreens's decision to terminate Lawson for violation o f W a l g r e e n s ' s payroll procedures. Lawson P a g e -21- O P I N I O N A N D O R D E R
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has failed to establish that her request for future FMLA leave played a part in Royster's decision to terminate her. Walgreens's motion for summary judgment on L a w s o n ' s FMLA and OFLA claims is granted. B. Wrongful Discharge In her Third Claim for Relief for wrongful discharge, Lawson asserts that Walgreens terminated her inretaliation for her pursuing her statutory rights under FMLA and OFLA. Generally, an employer may fire an at-will employee at any time and for any reason, unless doing so violates a contractual, statutory or constitutional requirement. Patton v.

J.c. Penney Co., 301 Or. I 1 7 , 1 2 0

(1986). Oregon l a w recognizes two narrow exceptions to this rule. The first is when an employee is discharged for exercising ajob-related right o f important interest. The second is when the plaintiff is discharged for complying with a p u b l i c duty. Draperv. Astoria School Dist. No. i C , 995 F. Supp. 1 1 2 2 , 1 1 2 7 (D. Or. 1998)(citations omitted). Invoking rights to benefits under FMLA anel OFLA is an employment-related right that may serve as the basis for a wrongful discharge claim.
Washington v. Fort J a m e s Operating Co., 110 F. Supp. 2 d 1325,1334 (D. Or. 2000); Yeager v. Providence Health System Oregon, 195 Or. App. 134, 142-43 (2004). To succeed o n a claim for

wrongful discharge an employee must show that they engaged i n protected activity and that the protected activity was a substantial factor in the decision to terminate the employee. Holien v. Sears
Roebuck a n d Co., 298 Or. 76, 90 n.5 (1984). In other words, an employee must establish a "causal

connection" between the employment-related right and the adverse employment action. Pascoe v.
Mentor Graphics COl])., 199 F. Supp. 2 d 1 0 3 4 , 1053 (2001).

The court has already determined that L a w s o n ' s request for benefits under FMLA and OFLA was not the reason, either in whole or in part, for h e r termination. Royster terminated Lawson P a g e -22- O P I N I O N A N D O R D E R

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because she violated Walgreens's payroll procedures on three different occasions and, as a result, violated numerous personnel policies, some o f which provided for discipline up to and including termination. This finding disposes o f Lawsons' wrongful discharge claim as well. Furthermore, Lawson also relies on the temporal proximity o f the events at issue, b u t temporal proximity is not, by itself, sufficient to carry her wrongful discharge claim past summary judgment. The causal l i n k between a protected activity and the alleged retaliatory action " c a n be infel'l'ed from timing alone" when there is a close proximity between the two, but there must also be evidence that the employer was aware o f the employee's protected activity. 1'lIOmas v. City

0/

Beaverton, 379 F.3d 802, 812 & 11.4 (9th Cir. 2004). A c c o r d Knox v. Portlan(!, 543 F. Supp. 2d

1 2 3 8 , 1 2 4 8 (citing Yartzo.ffv. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987» (causation may be "inferred from circumstantial evidence, such as the employer's knowledge that the plaintiff engaged in protected activities a n d the proximity in time between the protected action and the allegedly retaliatory activity.") (italics added); Damell'orth v. Linn-Benton Community College, No. 07-6162TC, 2007 WI, 2816216, a t *6 (D. Or. Sept. 27, 2007) (quoting Cohen v. F r e d Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982» ("Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged i n the protected activity."). Indeed, Lawson acknowledges that temporal proximity generally is not enough, by itself, to establish causation, because she notes that temporal proximity must be "coupled with attending circumstances that suggest something other than legitimate reasons for the temporal tie." (Opp. Memo. at 23.) Here, it is undisputed that Lawson violated Walgreens's payroll policies in several separate respects and that Walgreens, as Royster knew generally and confirmed with the human resources department, had previously terminated other management-level employees who engaged in the same P a g e -23- O P I N I O N A N D O R D E R
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or similar conduct. Undermining L a w s o n ' s wrongful discharge claim is her acknowledgment that disciplinary action w a s appropriate for her violations o f W a l g r e e n s ' s policies; she does not argue, t h a t n o d i s c i p l i n a r y a c t i o n s h o u l d h a v e b e e n t a k e n or t h a t t h e l e s s e r f o r m o f d i s c i p l i n e she a d v o c a t e s h e r e w o u l d h a v e b e e n retaliatory. L a w s o n ' s d i s p u t e i s w i t h t h e l e v e l o f d i s c i p l i n e W a l g r e e n s a d m i n i s t e r e d , t e r m i n a t i o n , b u t L a w s o n h a s not p r e s e n t e d e v i d e n c e t o s h o w t h a t t h e d i s c i p l i n e w a s m o t i v a t e d b y h e r r e q u e s t f o r family leave o r t h a t s h e suffered a m o r e s e v e r e o u t c o m e t h a n o t h e r s w h o h a d c o m m i t t e d t h e s a m e o r s i m i l a r p o l i c y v i o l a t i o n s . A s R o y s t e r k n e w w h e n he m a d e the d e c i s i o n a n d as W a l g r e e n s d e m o n s t r a t e d o n s u m m a r y j u d g m e n t , i n f a c t L a w s o n ' s t e r m i n a t i o n w a s c o n s i s t e n t w i t h W a l g r e e n s ' s p a s t a c t i o n s a g a i n s t o t h e r e m p l o y e e s , i n c l u d i n g m a n a g e r s , who e n g a g e d i s s u c h conduct. Accordingly, Walgreens is entitled to sunllllmy j u d g m e n t o n L a w s o n ' s wrongful discharge claim.

Conclusion
W a l g r e e n s ' s motion for s u m m m y j u d g m e n t (#16) is G R A N T E D in its entirety. D A T E D this 20'h day o f March, 2009.

JD V. A C O S T A W i t e d States Magistrate Judge

P a g e -24- OPINION A N D O R D E R

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