Smith v. Women's HealthCare Associates, LLC
Filing
44
OPINION AND ORDER: For the reasons discussed above, WHA's motion for summary judgment 26 is GRANTED with regard to Ms. Smiths medical leave claims and DENIED with regard to her perceived disability claim. Signed on 4/22/2011 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JAMELA SMITH,
Plaintiff,
No. CV 10-198-MO
v.
OPINION AND ORDER
WOMEN’S HEALTHCARE
ASSOCIATES, LLC,
Defendants.
MOSMAN, J.,
INTRODUCTION
This matter involves plaintiff Jamela Smith‟s allegations that her former employer,
Women‟s Healthcare Associates, LLC (“WHA”), discriminated against her in violation of the
Americans with Disabilities Act (“ADA”), Oregon Equality Act (“OEA”), Family Medical
Leave Act (“FMLA”), and Oregon Family Medical Leave Act (“OFLA”). Before the Court is
WHA‟s motion to motion for summary judgment (#26). For the reasons below, I grant WHA‟s
motion in part and deny it in part.
BACKGROUND
On February 8, 2010, the Court heard oral argument regarding WHA‟s motion for
summary judgment (#26) against Ms. Smith‟s allegations of discrimination. After listening to the
parties‟ arguments, I denied WHA‟s motion with regard to Ms. Smith‟s associational
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discrimination claim and deferred judgment pending further briefing on Ms. Smith‟s perceived
disability and medical leave claims. (Min. Order (#40).)
At issue with the remaining claims was the admissibility of a statement, which WHA
allegedly made while terminating Ms. Smith. (Tr. Proceedings (#41) 22). Ms. Smith contends
that WHA employees told her “with your sister‟s diagnosis of breast cancer, we don‟t think
you‟re going to be able to give your all to WHA.” (Pl.‟s Con. Stat. (#34) 5.) During Ms. Smith‟s
deposition, however, she testified that the only reason she believes WHA terminated her for use
of family medical leave was the temporal proximity between her use of leave and eventual
termination. (Def.‟s Mem. Supp. Summ. J. (#30) 16–17.) In order to determine whether Ms.
Smith should be held to her sworn testimony, and whether the “give your all” allegation conflicts
with Ms. Smith‟s earlier testimony, I ordered the parties to file supplemental briefs. (Min. Order
(#40).)
LEGAL STANDARD
Summary judgment is proper when “the movant shows that there is no genuine dispute as
to any material fact.” Fed. R. Civ. P. 56(a). The court views the record in the light most favorable
to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The nonmoving party has the “burden of [pointing] to „specific facts showing that there is a genuine issue
for trial . . . .‟ [I]t is not the district court‟s job to sift through the record to find admissible
evidence in support of a non-moving party‟s case.” Claar v. Burlington N. R.R., 29 F.3d 499, 504
(9th Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When “the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is
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no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (internal quotes omitted).
DISCUSSION
After reviewing the parties‟ motions, memoranda, and supplemental briefing, I now grant
summary judgment to defendants on Ms. Smith‟s medical leave claims and deny summary
judgment on her perceived disability claim.
With regard to Ms. Smith‟s medical leave claims, in order to establish a prima facie case
of retaliation for use of medical leave, she must demonstrate that she was legally entitled to
protected medical leave, and not merely that it was graciously provided by her employer. See,
e.g., Ney v. City of Hoisington, Kansas, 508 F. Supp. 2d 877, 886 (D. Kan. 2007) aff’d, 264 Fed.
App‟x 678 (10th Cir. 2008) (noting that in order to establish a prima facie case of FMLA
retaliation, plaintiffs must demonstrate that they “engaged in protected activity” and not merely
that they took leave). The care of a sibling, however, is not protected under either state or federal
law. See O.R.S. § 659A.150(4); 29 U.S.C. § 2601, et seq. Accordingly, WHA granted Ms. Smith
personal leave to care for her sister as a matter of discretion. (See Def.‟s Letter Br. (#42) 1.)
In response, Ms. Smith contends that retaliation can be inferred from the circumstances
surrounding her use of leave to seek rehabilitation, which is protected. (See Pl.‟s Letter Br. (#43)
2 n.1.) She recalls that WHA granted her personal leave to care for her sibling during the same
period that she took medical leave for rehabilitation. On March 26, 2009, Ms. Smith‟s sister was
notified that she required surgery for breast cancer, which would take place on April 15, 2009.
(Pl.‟s Resp. (#32) 10.) In order to care for her sister, Ms. Smith requested personal leave, which
was granted for April 14–15, 2009, and began immediately after her own medical leave ended.
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(Id.) But the comment only addresses Ms. Smith‟s use of unprotected personal leave. It simply
cannot be construed to address her use of protected leave. As a result, I conclude that no
reasonable inference can be drawn to connect the comment to protected medical leave.1 Because
Ms. Smith has not created a material issue of fact, I grant summary judgment on her medical
leave claims.
Turning now to Ms. Smith‟s perceived disability claim, I deny WHA‟s motion for
summary judgment because Ms. Smith created a dispute of material fact about WHA‟s real
reason for firing her. At oral argument, Ms. Smith offered three persuasive reasons why WHA‟s
reliance on the third party was unjustified. First, Ms. Smith proffered evidence that there was
“bad blood” between Ms. Smith and the vendor, Ms. Mitchell, which undermines the reliability
of Ms. Mitchell‟s report of non-compliance. (Tr. Proceedings (#41) 24:21); see also Pl.‟s
Concise Stat. Material Facts (#34) 4–5 (stating that Ms. Mitchell reported Ms. Smith out of
compliance without waiting to hear back from Ms. Smith as presumptively agreed).) Second,
Ms. Smith argued that Ms. Mitchell‟s report of non-compliance is unlike a scientific test.
Whereas a scientific test involves independently verifiable facts, Ms. Mitchell‟s report rested on
a subjective determination. Ms. Smith argued that in order to verify the report‟s accuracy, WHA
should have given her an opportunity to respond to Ms. Mitchell‟s report. (Tr. Proceedings (#41)
29:6–21; see also Pl.‟s Resp. (#32) 14–15 (noting that WHA failed to verify the accuracy of Ms.
Mitchell‟s report).) Finally, Ms. Smith argued that WHA unexpectedly denied Ms. Smith‟s
request to respond to her termination. There is evidence that by doing so, WHA violated its own
internal policies and disregarded facts indicating that Ms. Smith may have actually been in
1
In light of the facts Ms. Smith has proffered in support of her family leave claims, it is clear that those facts are
more properly dealt with in the context of her associational disability claim, which I have already allowed to
proceed. (See Min. Order (#40).)
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compliance with both her discharge plan and her last chance agreement with WHA. (Tr.
Proceedings (#41) 41:8–16; Pl.‟s Resp. (#32) 14–15.) In light of these facts, Ms. Smith‟s
perceived disability claim should proceed.
CONCLUSION
For the reasons discussed above, WHA‟s motion for summary judgment (#26) is
GRANTED with regard to Ms. Smith‟s medical leave claims and DENIED with regard to her
perceived disability claim.
IT IS SO ORDERED.
DATED this
22nd
day of April, 2011.
/s/ Michael W. Mosman
MICHAEL W. MOSMAN
United States District Court
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