Picouto v. Daimler Trucks North America, LLC et al

Filing 126

Order. The Court ADOPTS as modified Magistrate Judge Stewart's Findings and Recommendation 118 and, therefore, GRANTS in part and DENIES in part Defendant's Motion 41 for Summary Judgment as follow: The Court GRANTS Defendant's Mo tion for Summary Judgment as to Plaintiff's First and Second Claims to the extent they allege discrimination or retaliation based on discrete adverse employment actions. The Court GRANTS Defendant's Motion for Summary Judgment as to Plaint iff's Third and Fourth Claims except as to Defendant's alleged failure to engage in the interactive process or otherwise to accommodate Plaintiff's actual disability with respect to the May 2008 recall. The Court GRANTS Defendant' ;s Motion for Summary Judgment as to Plaintiff's Fifth through Eighth Claims. The Court DENIES Defendant's Motion for Summary Judgment as to Plaintiff's First and Second Claims to the extent that they allege a hostile work environment . The Court DENIES Defendant's Motion for Summary Judgment as to Plaintiff's Third and Fourth Claims to the extent that they allege Defendant's failure to engage in the interactive process or otherwise to accommodate Plaintiff's actual disability with respect to the May 2008 recall. IT IS SO ORDERED. See 6 page ORDER. Signed on 09/13/2010 by Judge Anna J. Brown. (bb)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

JUAN PICOUTO, Plaintiff, v. WESTERN STAR TRUCK PLANT PORTLAND LLC, a Delaware corporation qualified to do business in Oregon, Defendant. DANIEL J. SNYDER CARL LEE POST ERIN C. McCOOL 1000 S.W. Broadway Suite 2400 Portland, OR 97205 [phone] Attorneys for Plaintiff 1 - ORDER

08-CV-807-ST ORDER

DAVID J. RIEWALD MITCHELL J. COGEN Bullard Smith Jernstedt Wilson 1000 S.W. Broadway Suite 1900 Portland, OR 97205 [phone] Attorneys for Defendant BROWN, Judge. Magistrate Judge Janice M. Stewart issued Findings and Recommendation (#118) on May 27, 2010, in which she recommends the Court grant in part and deny in part Defendant's Motion (#41) for Summary Judgment. Defendant filed timely Objections to the The matter is now before this Court

Findings and Recommendation.

pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). I. Portions of the Findings and Recommendation to which Defendant does not object. Defendant does not object to the portions of the Finding and Recommendation in which the Magistrate Judge recommends the Court (1) grant Defendant's Motion for Summary Judgment as to Plaintiff's Fifth through Eighth Claims (2) grant Defendant's Motion for Summary Judgment as to Plaintiff's First and Second Claims to the extent they allege discrimination or retaliation based on discrete adverse employment actions, (3) grant Defendant's Motion for Summary Judgment as to Plaintiff's Third and Fourth claims except to the extent they allege Defendant 2 - ORDER

failed to engage in the interactive process or otherwise to accommodate Plaintiff's actual or perceived disability with respect to the May 2008 recall, and (4) deny Defendant's Motion for Summary Judgment as to Plaintiff's First and Second Claims to the extent they allege a hostile work environment. The Court,

therefore, is relieved of its obligation to review the record de novo as to these portions of the Findings and Recommendation. Shiny Rock Min. Corp v. U.S., 825 F.2d 216, 218. (9th Cir. 1987). See also Lorin Corp. v. Goto & Co., 700 F.2d 1202, 1206 (8th Cir. 1983). Having reviewed the legal principles de novo, the Court

does not find any error in these portions of the Findings and Recommendation. II. Portions of the Findings and Recommendation to which Defendant objects. Defendant objects to the portion of the Findings and Recommendation in which the Magistrate Judge recommends the Court deny Defendant's Motion for Summary Judgment as to Plaintiff's Third and Fourth Claims insofar as they allege Defendant failed to engage in the interactive process or otherwise to accommodate Plaintiff's actual or perceived disability with respect to the May 2008 recall. The Magistrate Judge recommends in the

Conclusion of the Findings and Recommendation that the Court should deny Plaintiff's Third and Fourth Claims as to Defendant's alleged failure to accommodate Plaintiff's perceived disability. Defendant contends and Plaintiff does not appear to contest that 3 - ORDER

an employer does not have a duty to accommodate a perceived disability. In addition, this portion of the Magistrate Judge's

recommendation is not analyzed in the substance of the Findings and Recommendation. Based on the record as a whole, the Court

concludes the provision for failure to accommodate Defendant's perceived disability likely was included in the Conclusion of the Findings and Recommendation in error and, therefore, the Court does not adopt that portion of the Findings and Recommendation. With respect to the remainder of Defendant's Objections, the Court notes when any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1). See also

Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc). In its Objections, Defendant reiterates the arguments contained in its Motion for Summary Judgment, its Reply in Support of Summary Judgment, and its statements at oral argument. This Court has carefully considered Defendant's Objections and concludes they do not provide a basis to modify the Findings and Recommendation. The Court also has reviewed the pertinent

portions of the record de novo and does not find any error in the Magistrate Judge's Findings and Recommendation. 4 - ORDER

CONCLUSION The Court ADOPTS as modified Magistrate Judge Stewart's Findings and Recommendation (#118) and, therefore, GRANTS in part and DENIES in part Defendant's Motion (#41) for Summary Judgment as follows: 1. The Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's First and Second Claims to the extent they allege discrimination or retaliation based on discrete adverse employment actions. 2. The Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's Third and Fourth Claims except as to Defendant's alleged failure to engage in the interactive process or otherwise to accommodate Plaintiff's actual disability with respect to the May 2008 recall. 3. The Court GRANTS Defendant's Motion for Summary Judgment as to Plaintiff's Fifth through Eighth Claims. 4. The Court DENIES Defendant's Motion for Summary Judgment as to Plaintiff's First and Second Claims to the extent that they allege a hostile work environment. 5. The Court DENIES Defendant's Motion for Summary Judgment as to Plaintiff's Third and Fourth Claims to the extent that they allege Defendant's failure to engage in the interactive process or otherwise to 5 - ORDER

accommodate Plaintiff's actual disability with respect to the May 2008 recall. IT IS SO ORDERED. DATED this 13th day of September, 2010.

/s/ Anna J. Brown ________________________ ANNA J. BROWN United States District Judge

6 - ORDER