Ambrose v. J.B. Hunt Transport, Inc.

Filing 50

OPINION AND ORDER: Granting in part and denying in part Defendant's Motion for Summary Judgment 32 . Signed on 2/13/14 by Magistrate Judge Dennis J. Hubel. (see formal order) (kb)

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UNITED STATES DISTRICT COURT

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DISTRICT OF OREGON

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PORTLAND DIVISION

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LEE AMBROSE,
Plaintiff,

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v.
J.B. HUNT TRANSPORT, INC., a
foreign corporation

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Defendant.
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Larry L. Linder
John D. Burgess
The Law Office of Larry L. Linder, LLC
2245 Commercial St. NE
Salem, OR 97303
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff

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Michael T. Garone
Jean Ohman Back
Stephanie P. Berntsen
Schwabe, Williamson & Wyatt, P.C.
Pacwest Center
1211 SW 5th Ave., Suite 1900
Portland, OR 97204
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant

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Page 1 - OPINION AND ORDER

No. 3:12-cv-01740-HU
OPINION AND
ORDER

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HUBEL, Magistrate Judge:

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This

case

3

Plaintiff

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Defendant J.B. Hunt Transport, Inc. (“Defendant”).

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moves, pursuant to Federal Rule of Civil Procedure (“Rule”) 56(c),

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for summary judgment on Plaintiff’s exclusively state law claims

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for violation of the Oregon Family Leave Act (“OFLA”), disability

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discrimination, failure to engage in interactive process, and

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workers’ compensation discrimination. For the reasons that follow,

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Defendant’s motion (Docket No. 32) for summary judgment is granted

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in part and denied in part.

Lee

arises
Ambrose

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out

of

an

(“Plaintiff”)

employment
and

dispute

his

former

between

employer,

Defendant now

I. FACTS AND PROCEDURAL HISTORY

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Sometime in 2005, Plaintiff was driving a commercial truck for

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Vic West Steel, when he began to experience an accelerated heart

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rate,

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Plaintiff received a clean bill of health after being examined by

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a cardiologist and his own physician.

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Plaintiff had a similar episode while driving, where he experienced

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an accelerated heart rate, excessive sweating and shortness of

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breath (“the 2006 incident”).

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told him to consult with a doctor to determine the root cause of

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these episodes.

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catheter ablation in May of 2006.1

excessive

sweating

and

nausea

(“the

2005

incident”).

In early to mid-2006,

Plaintiff’s dispatcher once again

Plaintiff did so and ultimately underwent a

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1

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As Defendant’s counsel explained during oral argument, “a
catheter ablation is where . . . a catheter is inserted in the
groin, goes up through the artery, into the heart, and then the
surgeon . . . kills a part of the heart muscle in order to
eliminate [an arrhythmia issue] that a person may have.” (Mot.
Summ. J. Hr’g Tr. 3, Nov. 19, 2013.)
Page 2 - OPINION AND ORDER

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Plaintiff was hired by Defendant effective May 2, 2011, to

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work as a commercial truck driver.

Defendant requires its drivers

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to comply with applicable Department of Transportation (“DOT”)

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regulations.

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prerequisite to being employed as one of Defendant’s drivers.

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Defendant’s policies state that obtaining a DOT medical certificate

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under false pretenses would be grounds for automatic termination.

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(Kreider

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“[F]alsification of an application or any work, personnel, or other

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J.B. Hunt records” would also be grounds for automatic termination.

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(Kreider Decl. ¶ 11; Ohman Back Decl Ex. B at 15.)

Possessing a valid DOT medical certificate is a

Decl.

¶

11;

Ohman

Back

Decl.

Ex.

B

at

15.)

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Plaintiff understood that his position was contingent upon

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successfully passing a DOT examination and possessing a valid DOT

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medical certificate.

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completed and signed a “Medical Examination Report For Commercial

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Driver Fitness Determination.”

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Under the health history section, Plaintiff answered: (1) “no” to

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having “any illness or injury in the last 5 years,” (2) “no” to

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prior “cardiovascular conditions,” (3) “no” prior “heart surgery”

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or

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consciousness” or “fainting, dizziness.”2

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at 2.)

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information,

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missing information may invalidate the [DOT] examination and [his]

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Medical Examiner’s Certificate.”

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(emphasis added).

any

“surgery,”

As part of the hiring process, Plaintiff

and

(4)

(Ohman Back Decl. Ex. B at 2.)

“no”

prior

“loss

of

or

altered

(Ohman Back Decl. Ex. B

Plaintiff certified that he provided complete and accurate
and

he

acknowledged

that

“inaccurate,

false,

or

(Ohman Back Decl. Ex. B at 2)

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2

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The Court notes that only the first question on the Medical
Examination Report was limited to a five-year time period.
Page 3 - OPINION AND ORDER

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Plaintiff

claims

that

he

verbally

informed

Operations

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Supervisor, Mario Nucci (“Nucci”), and the DOT medical examiner,

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Stephanie Toman (“Toman”), M.D., about the 2005 incident, the 2006

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incident and his May 2006 catheter ablation procedure.

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Dep. 54:19-55:6, 122:1-123:16, Jan. 25, 2013.)

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dispute, however, that he provided false information on the medical

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history form used by the DOT to evaluate his fitness to work as a

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commercial truck driver. (Ambrose Dep. 51:6-15, 52:1-9, 67:16-21.)

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Nor can Plaintiff dispute whether pertinent information regarding

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his medical history was missing from the Medical Examination

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Report.

(Ambrose

Plaintiff does not

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On December 29, 2011, Plaintiff began to suffer from cold

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symptoms while driving a semi-truck for Defendant from Portland,

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Oregon, to Weed, California, and back.

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approximately 4:45 p.m. on December 29, 2011 (Ambrose Tr. 4:10-25,

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Dec. 30, 2011), Plaintiff took a dose of DayQuil to treat his chest

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cold symptoms (Ambrose Dep. 142:3-14).

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around 8:00 p.m. that evening.

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took another dose of DayQuil at approximately 3:00 a.m. on December

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30,

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departed for Portland about six minutes later (Ambrose Tr. 3:22-

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4:1).

2011

(Ambrose

Tr.

After arriving in Weed at

Plaintiff went to bed

(Ambrose Tr. 17:21-25.)

17:5-10;

Ambrose

Dep.

Plaintiff

142:16-17),

and

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At approximately 6:00 a.m., thirty miles north of Grants Pass,

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Oregon, Plaintiff began to cough incessantly after extinguishing a

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cigarette and blacked out behind the wheel.

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11:24; Ambrose Dep. 150:13-151:5.)

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the median and several oncoming traffic lanes, through a guardrail,

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overturned on an embankment, and eventually came to rest underneath
Page 4 - OPINION AND ORDER

(Ambrose Tr. 10:1-

The semi-truck careened across

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an overpass after narrowly missing the concrete support column.

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(Burgess Decl. Ex. 6 at 2; Ambrose Dep. 151:6-20, 152:11-153:7.)

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When Plaintiff regained consciousness, he was hanging upside down

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by his seat belt and needed assistance from a good Samaritan to get

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out

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Miraculously, no other vehicles were involved in the accident.

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(Ambrose Dep. 153:21-25; Burgess Decl. Ex. 6 at 3.)

of

the

cab.

(Ambrose

Dep.

151:22-152:1,

154:3-4.)

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Plaintiff immediately reported the accident to his direct

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supervisor, Account Manager Brad Kreider (“Kreider”), and then went

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by ambulance to the Three Rivers Community Hospital in Grants Pass,

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where he received treatment for a chest contusion (bruised chest)

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and fainting episode (syncope).

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the emergency room doctor, Douglas Howard (“Howard”), M.D., on the

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morning of the accident state:

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The treatment notes prepared by

The patient appears uninjured other than some seat belt
tenderness.
It is not clear why he had a syncopal
episode. I do not believe that simple coughing should
cause syncope.
My query would be recurrence of his
dysrythmia. He has remained stable here. His plan is to
return to Salem.
I have advised him absolutely no
driving until he is further cleared by Cardiology. He
declines offer of analgesia, [so] all we will give is
Tylenol and/or Ibuprofen for discomfort. He will follow
up with Cardiology and his own physician when he returns
to Salem.
(Ohman Back Decl. Ex. B at 22) (emphasis added).

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Plaintiff was sitting on an emergency room bed when he was

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approached by Defendant’s casualty investigator, David LaLande

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(“LaLande”).

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LaLande to obtain photographs of the accident scene and a recorded

(Burgess Decl. Ex. 6 at 1-2.)

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Page 5 - OPINION AND ORDER

Defendant had asked

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statement from Plaintiff.3

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consented to have his statement tape-recorded by LaLande and

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certified that “the statements [he] made [we]re true to the best of

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[his] knowledge.”

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with LaLande, Plaintiff discussed his medical history, including a

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number of heart-related issues, in great detail.

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that Plaintiff corrected himself after initially stating he had

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taken NyQuil, as opposed to DayQuil, at 3:00 a.m. that morning.4

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(Ambrose Tr. 17:5-10.)

(Burgess Decl. Ex. 6 at 1.)

(Ambrose Tr. 20:22-21:1.)

Plaintiff

During the interview

Also of note is

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While at the hospital, an unnamed representative of Defendant

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asked LaLande to transport Plaintiff “to Asante Occupational Health

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Clinic for a blood test once he was discharged from the hospital.”

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(Burgess Decl. Ex. 6 at 2.)

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clinic at approximately 12:29 p.m. (Burgess Decl. Ex. 6 at 2, Ex.

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9 at 1) and then returned to the scene of the accident, roughly

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thirty miles north of Grants Pass, to photograph the interior of

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the cab and look for any contraband, medications or alcohol

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(Burgess Decl. Ex. 6 at 2, Ex. 9 at 1).

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the clinic, Plaintiff notified Defendant’s safety department that

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he needed to be cleared by a cardiologist before he could operate

LaLande escorted Plaintiff to the

At 12:36 p.m., while at

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3

LaLande received the assignment from Defendant at 6:30 a.m.
(Burgess Decl. Ex. 6 at 1.) When he arrived at the accident scene,
however, Plaintiff had already been transported to the hospital and
LaLande was unable to obtain the necessary photographs due to lowlight conditions and the fact that the semi-truck needed to be
pulled upright. (Burgess Decl. Ex. 6 at 1.)
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Dr. Howard’s emergency room record appears to be the only
other place where a pre-termination reference to NyQuil can be
found. (Ohman Back Decl. Ex. B at 21.) And the record does not
indicate that Plaintiff made such a statement to one of Defendant’s
employees prior to being terminated.
Page 6 - OPINION AND ORDER

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a vehicle.

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notified Defendant’s safety department that he completed the blood

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test.

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his review and photographs of the accident scene.5

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Ex. 9 at 1.)

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(Burgess Decl. Ex. 9 at 1.)

(Burgess Decl. Ex. 9 at 1.)

At 1:03 p.m., Plaintiff

At 1:29 p.m., LaLande completed
(Burgess Decl.

That same day, presumably around the same time, Kreider began

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filling out a Safety Event Review.

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the three-page Safety Event Review is attached as Exhibit E to

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defense counsel’s declaration.

The true and correct copy of

(Ohman Back Decl. ¶ 6.)

When

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Kreider was deposed on May 7, 2013, he initially claimed that the

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entire Safety Event Review was drafted during a telephonic meeting

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held on January 4, 2012, even though the review date is listed as

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December 30, 2011.

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2013.)

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himself and proceeded to explain that he initiated the Safety Event

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Review on the day of the accident by typing in “the alpha code” and

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that “it was a collision,” but he “didn’t actually input any of the

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facts and information in there until . . . the [telephonic meeting

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on January 4, 2012].”

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September 2, 2013, Kreider submitted a declaration to the Court

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indicating that he prepared the Safety Event Review “at or near the

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time of [the] Safety Event Review Meeting.”

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Kreider’s testimony on this matter should be evaluated by a jury.

(Kreider Dep. 22:1-11, 34:12-35:3, May 7,

After taking a nine-minute break, Kreider asked to correct

(Kreider Dep. 41:15-22, 42:15-24.)

On

(Kreider Decl. ¶ 7.)

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5

The Court notes that the safety department records from the
day of the accident reference that LaLande (the adjuster or ADJ)
“called in,” but the only callers that appear to be listed are
Plaintiff (the driver or “V1”) and Kreider (the account manager or
“A/M”). (Burgess Decl. Ex. 9 at 1.)
Page 7 - OPINION AND ORDER

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Under the section entitled “Conclusion of Review,” the Safety

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Event Review states, among other things: (1) the safety department

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“is setting up a drug screen,” (2) the “root cause” of the accident

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was

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Plaintiff should “[a]lways report illness to management and never

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operate a truck with inadequate rest, breaks, or proper health,”

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and (4) “[a]ny future safety events could lead to disciplinary

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actions up to and including termination of employment.”

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Back Decl. Ex. E at 1.)

improper

rest

and

improper

recognition

of

illness,

(3)

(Ohman

The second page of the Safety Event

10

Review, however, indicates that Plaintiff had been terminated and

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that Kreider’s electronic signature was affixed on January 4, 2012.

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(Ohman Back Decl. Ex. E at 2.)

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In the afternoon or evening of December 30, LaLande submitted

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his investigative report to Defendant.

The report is addressed to

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Defendant and dated December 30, 2011, the specified “loss date.”

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(Burgess Decl. Ex. 6 at 1.) The report clearly states that LaLande

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enclosed a copy of Plaintiff’s recorded statement (detailing his

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medical history and mistaken reference to NyQuil), a self-described

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“complete summary” of Plaintiff’s statement, and the Oregon State

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Police Crash report.

(Burgess Decl. Ex. 6 at 1-2.)

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Four days later, on January 3, 2012, Kreider called Plaintiff

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to let him know that a Safety Event Review would be conducted.

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(Ambrose Dep. 202:17-203:4.)

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would not be able to attend in person since he was not cleared to

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operate a vehicle.

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¶ 7.)

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Plaintiff informed Kreider that he

(Ambrose Dep. 203:6-9; see also Kreider Decl.

Plaintiff attended a telephonic Safety Event Review on January
4,

2012,

before

Kreider,

Page 8 - OPINION AND ORDER

Area

Risk

Manager

Keith

Phillips

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(“Phillips”),

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Nicholson (“Nicholson”) (collectively, “the safety review team”).

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(Nicholson Decl. ¶ 2; Phillips Decl. ¶ 2; Kreider Decl. ¶ 7.)

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During that teleconference, Kreider prepared a portion of the

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“Conclusion of Review” section based on Plaintiff’s description of

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the accident and the Oregon State Police Crash Report.

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Decl. ¶ 8; Kreider Dep. 22:1-11, 42:16-24.)

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mentioned that he had taken DayQuil, Kreider asked for and received

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a picture message of the bottle because he “wanted to make sure
what

and

General

[Plaintiff]

Manager

was

saying

of

was

Delivery

Services

Mike

(Kreider

When Plaintiff

10

that

accurate,

that

he

was

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[actually] taking DayQuil” (Kreider 24:12-22), as opposed to, for

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example, NyQuil (Kreider Dep. 24:23-25:1).

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By this time, Kreider and Nicholson both knew that “the

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physicians at the hospital wanted [Plaintiff] to be checked out

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again before he could drive.”

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¶ 7.)

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that improper rest and improper recognition of illness was the root

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cause of the accident (Kreider Decl. ¶ 7; Phillips Decl. ¶ 2), and

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that the accident was therefore preventable (Kreider Decl. ¶ 7;

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Phillips Decl. ¶ 2; Nicholson Decl. ¶ 3).

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Status Change was prepared indicating that Plaintiff had been

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terminated for violating DOT regulations.6

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4-5.)

(Nicholson Decl. ¶ 2; Kreider Decl.

Nevertheless, the safety review team apparently all agreed

Later that day, a Driver

(Burgess Decl. Ex. 7 at

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See 49 C.F.R. § 392.3 (prohibiting drivers from operating
commercial motor vehicles “while the driver’s ability or alertness
is so impaired, or so likely to become impaired, through fatigue,
illness, or any other cause, as to make it unsafe for him/her to
begin or continue to operate the commercial motor vehicle.”)
Page 9 - OPINION AND ORDER

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Prior to being informed of his termination, Plaintiff claims

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that he “orally requested that he be returned to work upon his

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doctor’s release, and that if possible he be employed in some other

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work in the interim.”

5

10.)

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upcoming appointment with a cardiologist and was told that he had

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been fired.

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Plaintiff was diagnosed with a heart condition necessitating a

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pacemaker.

(Second Am. Compl. ¶ 15; Ambrose Decl. ¶

On January 5, 2012, Plaintiff called Kreider to report an

(Ambrose Dep. 215:1-22.)

Sometime in April of 2012,

It was not until about the third week of April 2012

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that Plaintiff was able to return to work as a commercial truck

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driver.

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problems and had a stent implanted on May 16, 2012.

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Plaintiff continued to suffer from severe heart-related

In early September 2012, Plaintiff commenced the present

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action

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alleging state law claims for violation of the OFLA, disability

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discrimination,

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wrongful discharge, along with a federal claim for violation of the

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Family and Medical Leave Act (“FMLA”).

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Defendant removed the action to federal court on the basis of

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diversity and federal question jurisdiction.

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1332.

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pursuant to Rule 15(a)(2), Plaintiff filed an amended complaint on

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October 18, 2012, alleging only state law claims for violation of

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OFLA, disability discrimination, failure to engage in interactive

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process, and workers’ compensation discrimination.

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against

Defendant

failure

to

in

Multnomah

engage

in

County

Circuit

interactive

Court,

process

and

On September 26, 2012,

28 U.S.C. §§ 1331,

Following the grant of an unopposed motion for leave

II. LEGAL STANDARD

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Summary judgment is appropriate “if pleadings, the discovery

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and disclosure materials on file, and any affidavits show that
Page 10 - OPINION AND ORDER

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there is no genuine issue as to any material fact and that the

2

movant is entitled to judgment as a matter of law.”

3

P. 56(c).

Summary judgment is not proper if factual issues exist

4

for trial.

Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.

5

1995).

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FED. R. CIV.

The moving party has the burden of establishing the absence of

7

a genuine issue of material fact.

Celotex Corp. v. Catrett, 477

8

U.S. 317, 323 (1986).

9

genuine issue of material fact, the nonmoving party must go beyond

10

the pleadings and identify facts which show a genuine issue for

11

trial.

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judgment by relying on the allegations in the complaint, or with

13

unsupported conjecture or conclusory statements.

14

Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).

15

summary judgment should be entered against “a party who fails to

16

make a showing sufficient to establish the existence of an element

17

essential to that party’s case, and on which that party will bear

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the burden of proof at trial.”

If the moving party shows the absence of a

Id. at 324.

A nonmoving party cannot defeat summary

Hernandez v.
Thus,

Celotex, 477 U.S. at 322.

19

At the outset, it must be noted that, for purposes of the

20

pending motion only, Defendant “relies upon Plaintiff’s allegations

21

and admissions to demonstrate that, even if true, no genuine issue

22

of material fact exists to defeat summary judgment on all claims.”

23

(Def.’s

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weighing of the evidence, and the drawing of legitimate inferences

25

from the facts are jury functions, not those of a judge at summary

26

judgment.” Barnett v. PA Consulting Group, Inc., 715 F.3d 354, 358

27

(D.C. Cir. 2013) (citation omitted).

Mem.

Supp.

at

2.)

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Page 11 - OPINION AND ORDER

“Credibility

determinations,

the

1

The court must view the evidence in the light most favorable

2

to the nonmoving party.

Bell v. Cameron Meadows Land Co., 669 F.2d

3

1278, 1284 (9th Cir. 1982).

4

existence of a genuine issue of fact should be resolved against the

5

moving party.

6

Where different ultimate inferences may be drawn, summary judgment

7

is inappropriate.

8

136, 140 (9th Cir. 1981).

9

party has limits.

All reasonable doubt as to the

Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976).

Sankovick v. Life Ins. Co. of N. Am., 638 F.2d
However, deference to the nonmoving

The nonmoving party must set forth “specific
FED. R. CIV. P. 56(e).

10

facts showing a genuine issue for trial.”

11

The “mere existence of a scintilla of evidence in support of

12

plaintiff’s positions [is] insufficient.”

13

Lobby, Inc., 477 U.S. 242, 252 (1986).

14

record taken as a whole could not lead a rational trier of fact to

15

find for the nonmoving party, there is no genuine issue for trial.”

16

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

17

574, 587 (1986) (internal quotation marks omitted).

18
19

Anderson v. Liberty
Therefore, where “the

III. EVIDENTIARY RULINGS
A.

Motion One

20

At page eight of its memorandum in support, Defendant notes

21

that its safety review team felt that “the December 30, 2011

22

potentially deadly, rollover accident was preventable.”

23

Mem. Supp. at 8) (emphasis added).

24

emphasized language on the ground that it is irrelevant under

25

Federal Rule of Evidence (“FRE”) 401.

(Def.’s

Plaintiff moves to strike the

26

While the Court is mindful of the fact that “[d]efects in

27

evidence submitted in opposition to a motion for summary judgment

28

are waived absent a motion to strike or other objection,” FDIC v.
Page 12 - OPINION AND ORDER

1

N.H. Ins. Co., 953 F.2d 478, 484 (9th Cir. 1991) (citing Scharf v.

2

U.S. Att’y Gen., 597 F.2d 1240, 1243 (9th Cir. 1979)), not all

3

“objections are necessary, or even useful, given the nature of

4

summary judgment motions in general,” Burch v. Regents of the Univ.

5

of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006).

6

“objecti[ng] to evidence on the ground that it is irrelevant . . .

7

[is] duplicative of the summary judgment standard itself.”

8

Courts “can award summary judgment only when there is no genuine

9

dispute of material fact.”

10

Indeed,

Id.

Id.

The Court is capable of determining which facts are relevant

11

to

12

extraneous

13

Defendant chooses to use in describing the accident in this case

14

are not facts, but are properly treated as argument.

15

the Court’s decision on this motion is based on the language

16

objected to and therefore the motion is denied as moot.

17

B.

18

Defendant’s
or

motion
improper

for

summary

factual

judgment

and

statements.

disregarding

The

adjectives

No part of

Motion Two
At page fourteen and fifteen of its memorandum in support,

19

Defendant

states:

“In

a

transparent

attempt

to

avoid

20

consequences of [Defendant’s] after-acquired evidence and create a

21

material issue of fact, Plaintiff subsequently testified he told

22

his . . . supervisor, Mario Nucci, and the [DOT] Medical Examiner

23

that he had a catheter ablation in 2006 on or about April 27,

24

2011.”

25

Defendant is alluding to its assertion that, prior to being hired,

26

Plaintiff made material misrepresentations to Defendant and the DOT

27

medical examiner about his past medical history.

(Def.’s Mem. Supp. at 14-15) (emphasis added).

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Page 13 - OPINION AND ORDER

the

Here,

Plaintiff moves

1

to

strike

the

emphasized

language

on

2

the

ground

it

is

“inappropriate” and irrelevant under FRE 401.

3

The Court denies Plaintiff’s motion to strike Defendant’s

4

counsel’s use of the language “[i]n a transparent attempt,” because

5

it is not a factual statement.

6

although not helpful.

7

C.

8

It is permissible legal argument,

Motion Three
At

page

three

of

its

memorandum

in

support,

Defendant

9

references that “Plaintiff never advised . . . the DOT medical

10

examiner, or J.B. Hunt, that he had lost consciousness while

11

driving before he was hired or before the December 30, 2011

12

accident——and, in fact, now denies he ever lost consciousness

13

before this accident despite his unambiguous admissions to the

14

contrary.”

15

the emphasized language on the grounds that it is inaccurate and

16

that Defendant lacks personal knowledge of that which it declares.

17

Whether Defendant’s statement in its argument is correct or

18

not that Plaintiff has provided inconsistent reports and testimony

19

on the subject of whether he had lost consciousness while driving

20

prior to December 30, 2011, is not a basis to strike the argument.

21

The motion is denied.

22

D.

23
24
25
26
27
28

(Def.’s Mem. Supp. at 3.)

Plaintiff moves to strike

Motion Four
At page four of its memorandum in support, Defendant states

that:
Plaintiff also reported his health history on the [DOT]
Medical Examination Report.
Again Plaintiff answered
‘no’ to having ‘any illness or injury in the last 5
years,’ ‘no’ prior ‘heart surgery’ or any ‘surgery,’ and
‘no’ prior ‘loss of or altered consciousness’ or
‘fainting, dizziness.’
Plaintiff certified that he
provided
‘complete
and
true’
information.
He
Page 14 - OPINION AND ORDER

1
2

acknowledged that ‘inaccurate, false, or missing
information may invalidate the examination and [his DOT]
Medical Examiner’s Certificate.’ Plaintiff denied all
other prior medical history to the DOT medical examiner.

3
4

(Def.’s Mem. Supp. at 4) (internal citations omitted) (emphasis

5

added).

6

ground that the DOT medical examiner, Toman, “does not have any

7

recollection concerning Plaintiff’s DOT medical examination [and

8

thus] cannot give testimony concerning matters about which she has

9

no personal knowledge.”

Plaintiff moves to strike the emphasized language on the

(Pl.’s Resp. at 7-8.)

10

Again, this is defense counsel’s argument of what the record

11

evidence means. It is not an effort by counsel to “supplement” the

12

record.

Therefore, the motion is denied.

13

Of interest, having denied the motion, the Court notes that

14

Toman concedes that she cannot specifically recall Plaintiff or his

15

examination.

16

however, provide the following testimony regarding the notes she

17

transcribed on Plaintiff’s report during his examination:

18

(Toman Dep. 27:18-28:7, July 15, 2013.)

Toman did,

Q. Okay. And what do your notes say [on Plaintiff’s DOT
Medical Examination Report]?

19
20
21

A. It looks like a little bit of, maybe, the date there
is cut off, but I read (quoted): ‘18/2011, {left} heel
injury - followed by podiatrist - no limitations,’ and
denies
any
other
past
medical
history.
Denies
hospitalization. No medications.

22
23

Q. Okay. Does it say anything about a catheter ablation
[Plaintiff underwent in May 2006]?

24

A. No.

25

Q. If he had told you that he’d had a catheter ablation,
is that something you would have written down?

26
A. Yes.
27
28

Q. Now, Mr. Ambrose has testified that he told you he had
a catheter ablation but had no subsequent issues, and
Page 15 - OPINION AND ORDER

1
2

[that] you stated (quoted as read): ‘All right.
don’t worry about it.’ Do you recall any
conversation?

Then
such

3

A. No.

4

Q. If you had that discussion, is that something you
would have made note of?

5
A. Absolutely.
6
Q. And why is that?
7
A. Because that’s significant past medical history for
someone that is going to be driving [semi-trucks].

8
9

Q. Would you have made a note of it anywhere else in his
records, or would it have been under this section [on the
medical examination report entitled ‘Medical Examiner’s
Comments on Health History’]

10
11

A. It would have been under that . . . section . . . and
sometimes, if I ran out of room [in that section], I
would have to write down the side [on the same page of
the report].

12
13
14

(Toman Dep. 13:12-14:18.)

15
16

This is the record before the Court.
E.

Motion Five

17

At page eight of its memorandum in support, Defendant states:

18

“At the time of his December 30, 2011 accident, Plaintiff did not

19

know he had a medical condition, which he subsequently believed

20

caused the incident.”

21

to

22

inaccurate.

23

deposition testimony cited by Defendant does not support this

24

assertion because Plaintiff “testified he had been informed he had

25

a heart attack by the ER physician.”

26

strike

the

(Def.’s Mem. Supp. at 8.)

emphasized

language

on

the

Plaintiff moves

ground

that

it

is

As Plaintiff goes on to explain, the passage of his

(Pl.’s Resp. at 8.)

Pure common sense and simple logic demonstrates Plaintiff’s

27

motion

28

emergency

to

strike
room

lacks

until

merit.

after

Page 16 - OPINION AND ORDER

his

Plaintiff
December

did
30,

not
2011

visit

the

accident.

1

Defendant prefaced its statement regarding Plaintiff being unaware

2

of a medical condition by stating “[a]t the time of his December

3

30, 2011 accident.”

If Plaintiff received information regarding a

4

potential

condition

5

Defendant’s counsel’s statement is accurate.

6

ignores Plaintiff’s testimony that he “had a medical condition

7

unknown to [him] at the time that caused [the December 30, 2011]

8

accident.”

9

F.

medical

after

(Ambrose Dep. 245:21-22.)

the

accident

occurred,

Plaintiff’s counsel

Motion denied.

Motion Six

10

At page eight of its memorandum in support, Defendant states:

11

At the time of his termination [on January 5, 2012],
Plaintiff had not been released to drive by a physician.

12
While disputed, Plaintiff alleges that Mr. Kreider
advised him that J.B. Hunt did not have any work for him,
but once he was cleared to drive to let them know ‘to see
if . . . we could get reviewed and possibly rehired.’
Plaintiff could not perform the essential functions of
the driving position, with or without reasonable
accommodation. Plaintiff, however, was not aware of any
open, light duty (non-driving) positions at J.B. Hunt at
the time of his termination.

13
14
15
16
17
18

(Def.’s Mem. Supp. at 8) (emphasis added).

19

strike

20

“[i]nappropriate

21

material.”

22

the

emphasized
legal

language

on

conclusion

the

Plaintiff moves to

ground

unsupported

that

it

by

the

is

an

cited

(Pl.’s Resp. at 8.)

Once again, Defendant’s counsel is presenting an argument

23

about whether the record raises a material issue of fact.

24

the record raises a question about Plaintiff’s ability to perform

25

the essential functions of the commercial truck driver position is

26

addressed below in evaluating Plaintiff’s disability discrimination

27

claim.

28

///

Motion denied.

Page 17 - OPINION AND ORDER

Whether

1

G.

Motion Seven

2

At page thirteen of its memorandum in support, Defendant

3

states: “In sum, Plaintiff did not disclose (1) the 1999 syncope;

4

(2) the 2006 catheter ablation . . . ; and (3) the 2009 syncope

5

while driving to either J.B. Hunt or the DOT Medical Examiner prior

6

to his employment.”

7

Plaintiff moves to strike the emphasized language on the ground

8

that “Defendant has offered no expert testimony as foundation for

9

the assertion that any prior incident was a ‘syncope.’”

10

(Def.’s Mem. Supp. at 13) (emphasis added).

(Pl.’s

Resp. at 8.)

11

Whether Defendant correctly characterizes the 1999 event (or

12

any other alleged syncopal event, for that matter) moved against,

13

or not, is not a question the Court must resolve on this summary

14

judgment motion.

15

argument of counsel not factual evidence.

16

strike is denied.

As with many of the motions to strike, this is

17
18

Therefore the motion to

IV. DISCUSSION
A.

19

OFLA Interference
Defendant argues that it is entitled to summary judgment on

20

Plaintiff’s

OFLA

interference

claim

on

two

grounds.

First,

21

Defendant contends that “Plaintiff could not have returned to work

22

within twelve weeks after the incident and, therefore, OFLA would

23

not protect Plaintiff as a matter of law.”

24

16.)

25

for OFLA because, prior to his termination, he did not establish

26

that he suffered from a ‘serious health condition.’”

27

Supp. at 16.)

(Def.’s Mem. Supp. at

Second, Defendant contends that “Plaintiff never qualified

28
Page 18 - OPINION AND ORDER

(Def.’s Mem.

1

To the extent possible, OFLA is to be construed in a manner

2

that is consistent with any similar provisions of the FMLA.

3

REV.

4

declared intent, the Oregon courts have looked to federal law when

5

interpreting OFLA.”

6

(9th Cir. 2011).

7

twelve workweeks of leave per year to care for their own or a

8

family member’s serious health condition,” Lawson v. Walgreen Co.,

9

No. CV. 07–1884–AC, 2009 WL 742680, at *5 (D. Or. Mar. 20, 2009),

10

and “[e]mployers are not allowed to deny or in any way interfere

11

with an employee’s right to take leave under either FMLA or OFLA,”

12

id.

STAT.

§

659A.186(2).

“Consistent

with

this

OR.

legislative

Sanders v. City of Newport, 657 F.3d 772, 783

“FMLA and OFLA allow eligible employees to take

13

Under his first cause of action, Plaintiff alleges that

14

“Defendant interfered with his OFLA rights by terminating him

15

before he was able to exercise such rights, and discharged [him]

16

because

17

Plaintiff’s first cause of action, as plead, is appropriately

18

considered an interference claim.

19

Indeed, as the Ninth Circuit explained in Bachelder v. American

20

West Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001): “By their plain

21

meaning, the anti-retaliation or anti-discrimination provisions do

22

not cover visiting negative consequences on an employee simply

23

because he has used FMLA leave.

24

under § 2615(a)(1), the provision governing ‘[i]nterference [with

25

the] [e]xercise of rights.’”

26

Hall-Hood v. Target Corp., No. 2:12–cv–01458–APG, 2013 WL 3030477,

27

at *3 (D. Nev. June 14, 2013) (citing Bachelder for the same

28

proposition).

he

took

medical

leave.”

Page 19 - OPINION AND ORDER

(Second

Am.

Compl.

¶

18.)

See 29 U.S.C. § 2615(a)(1).

Such action is, instead, covered

Id. at 1124 (citations omitted);

1

Defendant’s memorandum in support and Plaintiff’s opposition

2

brief correctly address Plaintiff’s first cause of action as an

3

interference claim brought pursuant to § 2615(a)(1). At page eight

4

of its reply brief, however, Defendant characterized Plaintiff’s

5

allegation that Defendant “discharged [him] because he took medical

6

leave” as a retaliation claim brought pursuant to § 2615(a)(2). See

7

Sanders, 657 F.3d at 777 (“An allegation of a violation of [§

8

2615(a)(2)]

9

claim.”)

is

known

as

a

‘discrimination’

or

‘retaliation’

That is incorrect.

10

Some circuits have invoked § 2615(a)(2) in cases where the

11

employee “was subjected to an adverse employment action for taking

12

FMLA protected leave.”

Xin Liu v. Amway Corp., 347 F.3d 1125, 1133

13

n.7 (9th Cir. 2003).

The Ninth Circuit, however, has “clearly

14

determined that § 2615(a)(2) applies only to employees who oppose

15

employer practices made unlawful by FMLA, whereas, § 2615(a)(1)

16

applies

17

consequence are subjected to unlawful actions by the employer.”

18

Id.; see also Flores v. Merced Irrigation Dist., 758 F. Supp. 2d

19

986, 996 (E.D. Cal. 2010) (discharge constitutes an unlawful or

20

adverse employment action under the FMLA).

21

to

employees

who

simply

take

FMLA

leave

and

as

a

Clarifying the appropriate characterization of Plaintiff’s

22

first cause of action is critical for two reasons.

23

that the Ninth Circuit does not apply the burden-shifting framework

24

delineated in McDonnell Douglas Corp. v. Green, 411 U.S. 792

25

(1973), to interference claims. Sanders, 657 F.3d at 778. Instead,

26

an employee can prove an interference “claim, as one might any

27

ordinary statutory claim, by using either direct or circumstantial

28

evidence, or both.”

Bachelder, 259 F.3d at 1125.

Page 20 - OPINION AND ORDER

The first is

The second is

1

that “the employer’s intent is irrelevant to a determination of

2

liability” in an interference case.

3

Therefore, in evaluating the motion against the OFLA interference

4

claim, the Court will not consider the motive of Defendant nor

5

apply the McDonnell Douglas burden-shifting framework.

6

Sanders, 657 F.3d at 778.

Because Oregon applies case law interpreting FMLA to OFLA

7

claims, the discussion below is of FMLA case law.

8

a prima facie OFLA interference claim are: (1) the employee was

9

eligible for OFLA’s protections, (2) the employer was covered by

10

the OFLA, (3) the employee was entitled to leave under the OFLA,

11

(4) the employee provided sufficient notice of her intent to take

12

leave, and (5) the employer denied the employee OFLA benefits to

13

which she was entitled.

14

Plan of the Nw., 868 F. Supp. 2d 1065, 1080 (D. Or. 2012); see also

15

Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006).

16

The

Court

See Perez-Denison v. Kaiser Found. Health

begins

admits

The elements of

by

to

availability of OFLA leave.” (Pl.’s Resp. at 13.) “[T]he employer

19

is

20

employee’s absence [or having been notified that leave is needed],

21

for being aware that the absence may qualify for FMLA protection.”

22

Bachelder, 259 F.3d at 1131; 29 C.F.R. § 825.302(c) (employees only

23

need to “state that leave is needed.”)

24

“[i]t is the employer’s responsibility to determine when FMLA [or

25

in this case OFLA] leave is appropriate, to inquire as to specific

26

facts to make that determination, and to inform the employee of his

27

or her entitlements.”

notified

inform

of

the

[him]

that

18

been

failed

claim

“Defendant

having

it

Plaintiff’s

17

responsible,

[that]

addressing

reason

Page 21 - OPINION AND ORDER

for

the

an

Once such notice is given,

Amway Corp., 347 F.3d at 1134.

28

of

1

The record does suggest that Defendant received notice that a

2

potential FMLA-qualifying absence was forthcoming.

3

on December 30, 2011, at 12:36 p.m., Defendant’s safety department

4

received a call from Plaintiff, indicating that he had to see a

5

cardiologist before the emergency room doctor would clear him to

6

drive.

7

department raises a material issue of fact as to whether Defendant

8

was on notice that Plaintiff was in need of FMLA/ OFLA leave.

Cf.

9

Cooper

No.

(Burgess Decl. Ex. 9 at 1.)

v.

Gulfcoast

Jewish

Specifically,

That call to the safety

Family

Servs.,

Inc.,

10

8:09–cv–787–T–30TBM, 2010 WL 2136505, at *7 (M.D. Fla. May 27,

11

2010)

12

interference claim because an “e-mail from [the employee] stating

13

that her physician had referred her for further treatment and

14

additional information would be forthcoming, create[d] a material

15

disputed fact as to whether [the employer] was on notice that

16

Plaintiff was requesting additional FMLA leave.”)

17

(denying

The

motion

problem

for

for

summary

Plaintiff

judgment

is

that

on

“‘an

employee’s

actionable

18

‘interference’ in violation of § 2615(a)’ exists [only] when the

19

plaintiff

20

violation.’”

21

2005 WL 545359, at *11 (D. Or. Mar. 7, 2005) (citation omitted).

22

Guided by that principle, judges from this district have disposed

23

of interference claims at the summary judgment stage when, for

24

example, the employee indisputably could not return to work within

25

twelve weeks of being discharged.

26

Sav. & Loan Ass’n, Civ. No. 06-886-PA, 2007 WL 3544211, at *5-6 (D.

27

Or. Nov. 14, 2007) (employee suffered no harm since he could not

28

return to work within twelve weeks of the effective termination

‘is

able

to

show

prejudice

as

a

result

of

that

Stewart v. Sears, Roebuck & Co., No. CV-04-428-HU,

Page 22 - OPINION AND ORDER

See Santrizos v. Evergreen Fed.

1

date); Nelson v. Unified Grocers, Inc., No. 3:10–cv–00531–PK, 2012

2

WL 113742, at *1 (D. Or. Jan. 12, 2012) (Mosman, J.) (reversing

3

recommendation to deny summary judgment on § 2615(a)(1) claims,

4

stating, among other things, that “even assuming [the] discharge

5

was retaliatory, there is no material dispute that [the employee]

6

was unable to work for at least several months post-discharge.”)

7

Santrizos and Nelson are consistent with the understanding

8

that

the

9

[interference] theory [since] ‘the FMLA does not provide leave for

10

leave’s sake, but instead provides leave with an expectation that

11

an employee will return to work after the leave ends.’”

12

657 F.3d at 778 (quoting Edgar v. JAC Prods., Inc., 443 F.3d 501,

13

507

14

understanding

15

statute.”

16

2013

17

Throneberry v. McGehee Desha County Hosp., 403 F.3d 972, 979-80

18

(8th Cir. 2005) (“Logic also dictates we interpret the FMLA to

19

preclude the imposition of strict liability whenever an employer

20

interferes with an employee’s right to take FMLA leave”); Edgar,

21

443

22

strict-liability statute.”)

(6th

WL

F.3d

right

Cir.

to

reinstatement

2006)).
that

§

They

“is

are

2615(a)(1)

the

also

“is

not

linchpin

consistent
a

strict

of

the

Sanders,

with

the

liability

Grimes v. Fox & Hound Rest. Group, No. 12–CV–1229–JAR,
6179292,

at

508

at

*10

(“By

(D.

the

Kan.

same

Nov.

token,

25,

the

2013);

FMLA

see

is

also

not

a

23

Without giving due consideration to the declared legislative

24

intent of the OFLA and the Oregon appellate court decisions that

25

have looked to federal law when interpreting the OFLA, see, e.g.,

26

Yeager v. Providence Health Sys. Or., 195 Or. App. 134, 140 (2004),

27

Plaintiff attempts to avoid the Santrizos line of cases by arguing

28

that “they are federal cases interpreting FMLA rather than OFLA and
Page 23 - OPINION AND ORDER

1

thus are not controlling precedent.”

(Pl.’s Resp. at 13.)

The

2

Court is not persuaded by this argument and will look to federal

3

law when interpreting the OFLA.

4

The Court is similarly unpersuaded by Plaintiff’s argument

5

that, “under Defendant’s handbook, [he] was entitled to six weeks

6

of personal leave, placing [his] release date (the third week in

7

April) within the time permitted for [statutory] leave.”

8

Resp. at 14.)

9

aggregation theory, and in the Court’s view, such a theory has no

10

(Pl.’s

Plaintiff cites no authority in support of this

place in the interference context.

11

Employers are not liable under an interference theory if they

12

“discharge a person who fails to return to work at the expiration

13

of the twelve week period, even if [the employee] cannot return to

14

work for medical reasons.” Kleinmark v. St. Catherine’s Care Ctr.,

15

585 F. Supp. 2d 961, 963 (N.D. Ohio 2008).

16

of whether the medical evidence revealing the employee’s inability

17

to return to work was discovered post-discharge, Edgar, 443 F.3d at

18

513, or even pertained to the same physical or mental condition

19

“that forced the employee to take a medical leave in the first

20

place,” id. at 516, and regardless of whether the employee’s

21

ability to return twelve weeks after being discharged was due to a

22

condition exacerbated by the decision to terminate, Santrizos, 2007

23

WL 3544211, at *7-8.

24

Plaintiff posits, that employees can use personal leave to extend

25

the twelve-week statutory leave period in order to revive an

26

expired right to reinstatement and impose liability on their

27

employer under the FMLA.

28

statutory leave period would become a sword, rather than a shield.

That is so regardless

The case law simply does not suggest, as

Were that not the case, the twelve-week

Page 24 - OPINION AND ORDER

1

Defendant terminated Plaintiff’s employment effective January

2

5, 2012.

3

not cleared to “drive a truck” until “about the third week of

4

April” 2012, which would have been between 100 and 107 days after

5

he

6

Plaintiff has also made the following statement: “I was unable to

7

work driving a vehicle until I had a pacemaker implanted and a

8

right coronary st[e]nt [implanted on May 16, 2012].”

9

Decl. ¶ 7; Ambrose Dep. 279:8-24; Pl.’s Resp. at 17.)

was

During his deposition, Plaintiff testified that he was

discharged.

(Ambrose

Dep.

243:19-244:9;

254:8-12.)

(Ambrose
Clearly

10

Plaintiff was not capable of resuming his duties as a commercial

11

truck driver within the FMLA-leave period of eighty-four days. See

12

generally Edgar, 443 F.3d at 512 (“[T]he court is charged with

13

resolving the objective question of whether the employee was

14

capable of resuming his or her duties within the FMLA-leave

15

period.”)

16

Plaintiff’s interference claim.

17

B.

Defendant is therefore entitled to summary judgment on

Disability Discrimination

18

Defendant argues that it is entitled to summary judgment on

19

Plaintiff’s disability discrimination claim because Plaintiff has

20

failed to show that: (1) he was a “qualified individual” with a

21

disability; (2) he suffered an adverse employment action because of

22

his disability; and (3) Defendant’s legitimate, nondiscriminatory

23

reason

24

disability discrimination.7

for

terminating

his

employment

was

mere

pretext

for

25
26
27
28

7

Under his second cause of action, Plaintiff alleges that
Defendant violated Oregon’s disability discrimination statute, ORS
659A.112, when it “terminated [him] in substantial part either
because of [his heart condition], or in the alternative, because
Defendant perceived Plaintiff as being disabled.”
(Second Am.
Page 25 - OPINION AND ORDER

1

Oregon’s

disability

discrimination

statute

“makes

it

an

2

unlawful employment practice for an employer to refuse to hire or

3

promote, to bar or discharge from employment, or to discriminate in

4

the terms, conditions, or privileges of employment on the basis of

5

an

6

Structurals, Inc., No. 3:12–CV–00145–KI, 2013 WL 3333055, at *3 (D.

7

Or. July 1, 2013) (citing ORS 659A.112(1)).

8

that

9

“reasonable

otherwise

an

qualified

employer

person’s

discriminates

accommodation

to

disability.”

by,

the

v.

PCC

The statute specifies

inter

known

Mayo

alia,

physical

not

making

or

mental

10

limitations of a qualified individual with a disability who is

11

a[n] . . . employee, unless the employer can demonstrate that the

12

accommodation would impose an undue hardship on the operation of

13

the business of the employee.”

OR. REV. STAT. § 659A.112(2)(e).

14

1.

The Prima Facie Case

15

Consistent with the legislative declared intent, ORS 659A.112

16

is to be construed to the extent possible in a manner that is

17

consistent with any similar provisions in the Americans with

18

Disabilities Act of 1990 (“ADA”).

19

order to establish a prima facie case of disability discrimination

20

under the ADA, “a plaintiff must show that he: (1) is a disabled or

21

perceived as such; (2) is a qualified individual, meaning he is

22

capable of performing the essential functions of the job; and (3)

See OR. REV. STAT. § 659A.139. In

23
24
25
26
27
28

Compl. ¶ 23.) Plaintiff also alleges that Defendant discriminated
against him in violation of ORS 659A.112 by failing to “attempt to
accommodate [his] known disability.” (Second Am. Compl. ¶¶ 15,
20.)
Page 26 - OPINION AND ORDER

1

suffered an adverse employment action because of his disability.”8

2

Shepard v. City of Portland, 829 F. Supp. 2d 940, 963 (D. Or.

3

2011); Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087

4

(9th Cir. 2001) (“The standard for establishing a prima facie case

5

of discrimination under Oregon law is identical to that used in

6

federal law.”)
a.

7
8
9

Prong One: Disability

The first prong requires the plaintiff to demonstrate that he
is disabled within the meaning of the ADA.

The ADA defines

10

“disability”

impairment

11

substantially limits one or more of the major life activities of

12

such individual; (B) a record of such an impairment; or (C) being

13

regarded as having such an impairment.”

14

should be clear from that definition, to establish a “regarded as”

15

claim under the ADA, “the plaintiff must present evidence that the

16

defendant [perceived him] as having a physical or mental impairment

as:

“(A)

a

physical

or

mental

that

42 U.S.C. § 12102(1).

As

17
18
19
20
21
22
23
24
25
26
27
28

8

Plaintiff’s
second
cause
of
action
is
entitled
“disability/perceived disability discrimination,” yet he presents
arguments in support of claims for retaliation and simple failure
to accommodate.
In addition to failing to plead such claims,
Plaintiff fails to recognize that they are distinct causes of
action. See Carvajal v. Pride Indus., Inc., No. 10-cv-2319–GPC,
2013 WL 1728273, at *6 (S.D. Cal. Apr. 22, 2013) (discrimination
distinct from a cause of action for retaliation under the ADA);
Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1139 (9th Cir. 2001)
(“Unlike a simple failure to accommodate claim, an unlawful
discharge claim requires a showing that the employer terminated the
employee because of his disability.”)
The Court declines to
consider any simple failure to accommodate claim or retaliation
claim at this stage in the proceedings. See Wasco Prods. v.
Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006)
(“[S]ummary judgment is not a procedural second chance to flesh out
inadequate pleadings”); Speer v. Rand McNally & Co., 123 F.3d 658,
665 (7th Cir. 1997) (“A plaintiff may not amend his complaint
through arguments in his brief in opposition to a motion for
summary judgment.”)
Page 27 - OPINION AND ORDER

1

that substantially limits a major life activity.”

Echols v. Lokan

2

& Assocs., Inc., No. CV-06-293-ST, 2007 WL 756691, at *10 (D. Or.

3

Mar. 7, 2007); see also Kellogg v. Union Pac. R.R. Co., 233 F.3d

4

1083, 1089 (8th Cir. 2000) (“To establish a ‘regarded as’ claim

5

under the ADA, [plaintiff] must show that [defendant] perceived him

6

as actually disabled.”)

7

Plaintiff proceeds under alternative theories with respect to

8

the first prong of the prima facie case, namely that he is disabled

9

“by

virtue

of

his

heart

condition,”

or

alternatively,

that

10

“Defendant perceived [him] as being disabled” based on the December

11

30, 2011 accident.9

12

Defendant disputes whether it had any knowledge or perception that

13

Plaintiff was disabled, “for the purposes of this motion only,

14

[Defendant] assumes Plaintiff may have had an actual disability at

15

the time of his January 5, 2012 termination.”

16

at 21.)

17

Defendant’s concession is sufficient to create a genuine issue of

18

material fact as to the first prong of Plaintiff’s prima facie case

19

of discrimination.

20

132-33

21

subcategories in the disjunctive, a plaintiff must only show that

22

he is disabled under one of the three subparts to establish the

23

first element of a prima facie disability discrimination case.”)

(Second Am. Compl. ¶¶ 21-23.)

Although

(Def.’s Mem. Supp.

Because the ADA defines disability in the disjunctive,

(3d

Cir.

See Walsh v. Bank of Am., 320 F. App’x 131,
2009)

(“Because

the

ADA

lists

the

three

24
25
26
27
28

9

That Court notes that, in order prove a record of disability
under § 12102(1)(B) of the ADA, the documentary record must
indicate that the plaintiff is “actually disabled” under §
12102(1)(A); that is, he has an impairment that substantially
limits one or more of his major life activities. Miller v. Winco
Holdings, Inc., No. CV 04–476–S–MHW, 2006 WL 1471263, at *6 n.4 (D.
Idaho May 22, 2006).
Page 28 - OPINION AND ORDER

1
2

b.
In

Prong Two: Qualified Individual

addition

to

showing

that

he

is

disabled

under

ADA,

3

Plaintiff must also show that he is a “qualified individual.”

See

4

Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)

5

(plaintiff bears burden of demonstrating that he is a qualified

6

individual).

7

disability who, with or without reasonable accommodation, can

8

perform the essential functions of the employment position.”

9

U.S.C. § 12111(8). Despite Plaintiff’s suggestion to the contrary,

10

summary judgment is appropriate if no reasonable trier of fact

11

could conclude that he is a “qualified individual.” Kaplan v. City

12

of N. Las Vegas, 323 F.3d 1226, 1230 n.4 (9th Cir. 2003); see also

13

Kellogg, 233 F.3d at 1086 (failure to establish any element of a

14

prima facie ADA case warrants summary judgment).

A “qualified individual” is an “individual with a

42

15

Determining whether Plaintiff is a “qualified individual”

16

requires the Court to consider whether Plaintiff was able to

17

perform the essential functions of the commercial truck driver

18

position at the time of his termination without accommodation, and

19

then, if he cannot, whether he was able to do so with reasonable

20

accommodation.

21

Cir. 2006), cert. denied, 549 U.S. 1205 (2007); see also Kaplan,

22

323 F.3d at 1231.

23

truck driver position’s essential functions even with a reasonable

24

accommodation, then the ADA’s employment protections do not apply.

25

Cripe v. City of San Jose, 261 F.3d 877, 884-85 (9th Cir. 2001).

See Dark v. Curry County, 451 F.3d 1078, 1086 (9th

If Plaintiff cannot perform the commercial

26

The Court first addresses whether Plaintiff could perform the

27

essential job functions of the commercial truck driver position

28

without accommodation.

Plaintiff argues that he is a “qualified

Page 29 - OPINION AND ORDER

1

individual” because he “performed the essential functions of a

2

driver, i.e., driving truck, before and after the accident.” (Pl.’s

3

Resp. at 19.)

4

is whether Plaintiff could operate a vehicle at the time of his

5

termination.

6

decision in Curry County.

Plaintiff’s argument misses the mark.

The question

An illustrative example is the Ninth Circuit’s

7

In Curry County, the plaintiff did not dispute whether the

8

operation of heavy machinery was an essential function of the

9

position, choosing instead to dispute whether he was qualified to

10

perform such function.

11

Circuit concluded that there was no genuine issue of fact with

12

respect

13

accommodation, stating:

14
15
16
17
18

to

the

Curry County, 451 F.3d at 1087.

plaintiff’s

qualifications

without

The Ninth

reasonable

Had [plaintiff]’s treating physicians opined that [he]
was fit to operate heavy machinery at the time of his
firing, this perhaps would have given rise to a genuine
issue of material fact as to his qualifications without
reasonable accommodation. But the physicians actually
recommended [plaintiff]’s return to work following a
period of observation during which he could adjust to the
change in his medication. [Plaintiff] provides no
evidence that his seizures were under control at the time
of his termination.

19
20

Id. (internal citation omitted).

21

Because the undisputed facts in the record in this case

22

indicate that Plaintiff was not cleared to operate a vehicle at

23

time of his January 5 termination, no reasonable juror could

24

conclude that he was able to perform the essential functions of the

25

commercial truck driver position without accommodation.

26

conclusion flows logically from Plaintiff’s own statements and from

27

evidence presented by Defendant on what would appear to be an

28

otherwise

obvious

and

undisputed

Page 30 - OPINION AND ORDER

fact

(namely,

the

That

essential

1

functions of the commercial truck driving position). See generally

2

Bates v. United Parcel Serv., Inc., 511 F.3d 974, 991 (9th Cir.

3

2007) (“[A]n employer who disputes the plaintiff’s claim that he

4

can

5

establishing those functions.”)

perform

the

essential

functions

must

put

forth

evidence

6

The next issue is whether Plaintiff was able to perform the

7

essential functions of the position with reasonable accommodation.

8

The Ninth Circuit’s decision in Kaplan demonstrates that Defendant

9

is entitled to summary judgment to the extent Plaintiff proceeds on

10

a theory that Defendant regarded him as disabled. In Kaplan, there

11

was no issue of fact as to whether the employee could perform the

12

essential job functions without accommodation, as is the case here.

13

Kaplan, 323 F.3d at 1230-31.

14

no duty to accommodate an employee in an “as regarded” case.

15

at 1233. To the extent Plaintiff is bringing a “regarded as” case,

16

the

17

accordance with Kaplan.

18

or falls on the actual disability theory.

Court

grants

The Ninth Circuit held that there is

Defendant’s

motion

for

summary

Id.

judgment

in

The disability discrimination claim rises

19

The remaining question, then, is whether, under a theory of

20

actual disability, Plaintiff was able to perform the essential

21

functions of the position with reasonable accommodation. Generally

22

speaking, “[w]here an employee suffers from an actual disability

23

(i.e.,

24

activity), the employer cannot terminate the employee on account of

25

the disability without first making reasonable accommodations that

26

would enable the employee to continue performing the essential

27

functions of his job.”

28

(8th Cir. 1999).

an

impairment

that

substantially

limits

a

major

life

Weber v. Strippit, Inc., 186 F.3d 907, 916

The ADA’s definition of discrimination includes

Page 31 - OPINION AND ORDER

1

“not making reasonable accommodations to the known physical or

2

mental limitations of an otherwise qualified individual with a

3

disability . . . unless such covered entity can demonstrate that

4

the accommodation would impose an undue hardship on the operation

5

of the business.”

42 U.S.C. § 12112(b)(5)(A).

6

Plaintiff bears the burden of demonstrating that he could

7

perform the essential functions of the position with reasonable

8

accommodation.

9

accommodations may include, for example, reassignment to a vacant

10

position or an allowance of time for medical care or treatment.

11

Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1109-10 (10th Cir. 1999).

12

But reasonableness is not a constant; rather, “what is reasonable

13

in a particular situation may not be reasonable in a different

14

situation——even if the situational differences are relatively

15

slight.”

16

(9th Cir. 1999). That is why courts “must evaluate [a plaintiff’s]

17

requests in light of the totality of h[is] circumstances.”

18

see also Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th

19

Cir. 1999) (assessing reasonableness of proposed accommodation

20

“requires a fact-specific, individualized inquiry.”)

See Kennedy, Inc., 90 F.3d at 1481.

Reasonable

Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1048

Id.;

21

When viewed in the light most favorable to him, the record

22

indicates that Plaintiff requested accommodation through either (1)

23

reassignment to a vacant position or (2) an allowance of time

24

(e.g., time created by the use of medical leave, unpaid leave, an

25

aggregation of leave, or an extension of an existing leave period)

26

for medical care or treatment.

27

Indeed, with respect to the first accommodation, Plaintiff

28

alleges that he requested to “be employed in some other work in the
Page 32 - OPINION AND ORDER

1

interim.”

(Second Am. Compl. ¶ 15.)

Plaintiff also claims that,

2

prior to being terminated, he requested reasonable accommodation of

3

“modified duties.”

4

together with his deposition testimony makes clear that he sought

5

an available position that would not conflict with his driving

6

restrictions. (Ambrose Dep. 219:19-23; Second Am. Compl. ¶ 14.) In

7

other words, Plaintiff requested accommodation through reassignment

8

to a vacant position.

(Ambrose Decl. ¶ 10.)

Plaintiff’s declaration

9

With respect to the second accommodation, Plaintiff alleges

10

that Defendant refused his request to “be returned to work upon his

11

doctor’s release.”

12

claims that, prior to being terminated, he informed Defendant the

13

he

14

conditions before being cleared to drive” and “requested [the]

15

reasonable accommodation of time off of work.”

16

9-10.)

17

what was wrong with [him]” or “what [his] medical condition was” at

18

the time of his termination (Ambrose Dep. 246:9-23, 247:25-248:3),

19

the Court construes Plaintiff’s request for “time off work,” or to

20

“be returned to work upon his doctor’s release,” as a request for

21

an allowance of time for medical care or treatment.

“needed

to

(Second Am. Compl. ¶ 15.)

see

a

cardiologist

Plaintiff also

regarding

possible

heart

(Ambrose Decl. ¶¶

Because Plaintiff claims that he didn’t “know [exactly]

22

With respect to Plaintiff’s request to be reassigned, an

23

employee is a qualified individual under the ADA if he can “perform

24

the essential functions of a reassignment position, with or without

25

reasonable accommodation, even if [he] cannot perform the essential

26

functions of the current position.”

27

Inc., 273 F.3d 884, 892 (9th Cir. 2001); see also 42 U.S.C. §

28

12111(9)

(noting

that

reasonable

Page 33 - OPINION AND ORDER

Hutton v. Elf Atochem N. Am.,

accommodation

may

include

1

reassignment to a vacant position). In order “[t]o survive summary

2

judgment, Plaintiff must establish that he was qualified to perform

3

an appropriate vacant job which he must specifically identify and

4

show was available within the company at or about the time he

5

requested reassignment.”

6

Taylor, 196 F.3d at 1110.

Plaintiff identifies no such vacant jobs within Defendant’s

7

company.

Plaintiff presents no evidence whatsoever demonstrating

8

that appropriate vacant positions were available or would have

9

become available within a reasonable time period.

(Ambrose Dep.

10

276:7-14) (“[A]t or about the time you asked, do you have any facts

11

that would lead you to believe that there were such openings at

12

that time for light-duty positions?

13

this company to make a comment. So –-

14

sole record for the Court to consider is Plaintiff’s statement that

15

he was not “offer[ed] any light duty work” and Kreider’s statement

16

that “[Defendant] did not have any vacant and suitable positions

17

for which [Plaintiff] was qualified at any time after the December

18

30, 2011 accident.”

19

Accordingly, there simply is no genuine issue of fact as to whether

20

Plaintiff could have been accommodated through reassignment.

A. I don’t know enough about
Q. Okay.

A. -– no.”)

The

(Kreider Decl. ¶ 10; Pl’s Opp’n at 24.)

21

Plaintiff also argues that his impairment ultimately proved to

22

be remediable and Defendant failed to reasonably accommodate him by

23

refusing to provide an allowance of time for medical care and

24

treatment. “An allowance of time for medical care or treatment may

25

constitute a reasonable accommodation.”

26

(citation omitted).

27

reasonable accommodation where the plaintiff fails to present

28

evidence of the expected duration of her impairment.”

Taylor, 196 F.3d at 1110

But “[a]n indefinite unpaid leave is not a

Page 34 - OPINION AND ORDER

Id.; see

1

also Wynes v. Kaiser Permanente Hosps., 936 F. Supp. 2d 1171, 1184

2

(E.D. Cal. 2013) (“[R]easonable accommodation is . . . that which

3

presently, or in the immediate future, enables the employee to

4

perform

5

question. . . . [R]easonable accommodation does not require [an

6

employer]

7

conditions to be corrected.” (quoting Myers v. Hose, 50 F.3d 278,

8

283 (4th Cir. 1995))).

the

to

essential

wait

functions

indefinitely

for

of

the

[the

[position]

employee’s]

in

medical

9

In Hudson v. MCI Telecommunications Corp., 87 F.3d 1167 (10th

10

Cir. 1996), for example, the employee’s duties required her to

11

spend approximately six hours per day on the phone and at the

12

keyboard.

13

January 6, 1993, the employee complained to her supervisor that she

14

was experiencing pain in her hands and arms.

15

of the next three months, the employee was diagnosed with carpal

16

tunnel

17

providing that she was to take fifteen minutes off for each hour of

18

repetitive, digital activity; the physician issued new restrictions

19

on April 13, 1994, prohibiting typing and keyboard activity,

20

thereby necessitating the performance of other tasks; and lastly,

21

she was terminated on May 24, 1994.

22

termination,

23

decompression surgery, and she was ultimately released from her

24

physician’s care with no specific work restrictions in October of

25

1994 (e.g., between 130 and 160 days after being discharged).

26

id.

Id. at 1168. About fourteen months after being hired on

syndrome;

in

her

July

treating

of

1994,

physician

the

Id.

Over the course

issued

Id.
employee

restrictions

Two months postunderwent

nerve

See

27

On appeal, the employee in Hudson challenged the district

28

court’s conclusion, at the summary judgment stage, “that she failed
Page 35 - OPINION AND ORDER

1

to create a genuine issue of material fact concerning her status as

2

a qualified individual under the ADA.”

3

conceded that she was unable to perform the essential functions of

4

the position without accommodation, the Hudson court focused on the

5

second part of the qualified individual analysis, namely “whether

6

any reasonable accommodation by the employer would enable h[er] to

7

perform [the essential] functions.”

8

employee emphasized that “her impairment was clearly remediable and

9

that

[the

employer]

unpaid

leave

Id. (citation omitted).

reasonably

11

treatment.”

12

15
16
17
18
19
20
21
22
23

she

sought

her

The

by

and affirmed the judgment of the district court, stating:

Id. at 1169.

while

accommodate

refusing

14

provide

to

Because the employee

10

13

to

failed

Id.

necessary

The Tenth Circuit rejected her argument

[A] reasonable allowance of time for medical care and
treatment may, in appropriate circumstances, constitute
a reasonable accommodation.
In this case, however,
plaintiff has failed to present any evidence of the
expected duration of her impairment as of the date of her
termination.
The physicians’ reports upon which
plaintiff relies indicate only that permanent impairment
was not anticipated at the time the reports were
prepared. The forms provide no indication, however, of
when plaintiff could expect to resume her regular duties
at [the company]. Moreover, [plaintiff’s doctor]’s notes
through the date of her termination underscore the
uncertainty of her prognosis. Under these circumstances,
it makes no difference that [defendant] had the option of
removing her from the payroll and paying the cost of her
disability benefits.
[Defendant] was not required to
wait indefinitely for her recovery, whether it maintained
her on its payroll or elected to pay the cost of her
disability benefits. Accordingly, [plaintiff] has failed
to present evidence from which a reasonable jury could
find that the accommodation she urges, unpaid leave of
indefinite duration, was reasonable.

24
25

Id.; see also Larson v. United Natural Foods W. Inc., 518 F. App’x

26

589, 591 (9th Cir. 2013) (“for a requested accommodation to be

27

reasonable, the plaintiff must present evidence of the impairment’s

28
Page 36 - OPINION AND ORDER

1

expected duration, and not the duration of the leave request”

2

(citing Hudson, 87 F.3d at 1169).

3

As the Tenth Circuit explained in Cisneros v. Wilson, 226 F.3d

4

1113 (10th Cir. 2000),

5

Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001),

6

they have distinguished Hudson and a found a request for leave to

7

seek medical treatment constituted a reasonable accommodation,

8

where the employee “submitted evidence from his doctor [indicating]

9

that the expected duration of his treatment was four months and his

10

prognosis

11

for

recovery

overruled on other grounds,

was

‘good.’”

Id.

at

1130

Board of

(citation

omitted).

12

The Eleventh Circuit’s decision in Wood v. Green, 323 F.3d

13

1309 (11th Cir. 2003), cert. denied, 540 U.S. 982 (2003), is

14

similarly illustrative.

15

in favor of the employee on his ADA discrimination claim after an

16

eight-day trial. Id. at 1311-12. Shortly thereafter, the district

17

court denied the employer’s renewed motion for judgement as a

18

matter of law——which required the court to view the evidence in the

19

light most favorable to the employee——finding that the employee’s

20

requested accommodation for a leave of absence was not indefinite

21

since he had demonstrated an ability to return to work within “a

22

month or two” of experiencing cluster headaches.

In that case, the jury returned a verdict

Id. at 1312.

23

On appeal, the Eleventh Circuit reversed the district court’s

24

order denying the employer’s motion for judgment as a matter of

25

law——applying the same standards as the district court——stating:

26
27
28

While a leave of absence might be a reasonable
accommodation in some cases, [plaintiff] was requesting
an indefinite leave of absence. [Plaintiff] might return
to work within a month or two, or he could be stricken
with another cluster headache soon after his return and
Page 37 - OPINION AND ORDER

1

4

require another indefinite leave of absence. [Plaintiff]
was not requesting an accommodation that allowed him to
continue work in the present, but rather, in the
future——at some indefinite time. . . . [Our prior case
law demonstrates] that an accommodation is unreasonable
if it does not allow someone to perform his or her job
duties in the present or in the immediate future.

5

Id. at 1314 (internal citations omitted). The Eleventh Circuit did

6

acknowledge, however, that a prior decision had “parenthetically

7

noted that more compelling facts might lead to a different result.”

8

Id.

9

“[T]he ADA might be violated ‘if an employee was terminated

10

immediately upon becoming disabled without a chance to use his

11

leave to recover.’”

2
3

That decision provided the following hypothetical example:

Id. (citation omitted).

12

Plaintiff was terminated six days after reporting a possible

13

heart condition, arguably before he had a reasonable chance to

14

determine if he was able to be cleared to drive by a cardiologist

15

with or without further treatment.

16

from the situation in Hudson where the plaintiff had been allowed

17

months to determine what the medical issue was, what limitations

18

were imposed by the doctor, and what treatment was suggested, but

19

nonetheless was not able to present the employer with information

20

by the time of termination about how long it would be before she

21

could perform the essential functions with the accommodation of

22

leave to seek medical treatment.

This is materially different

23

Likewise, this is distinguishable from the situation in Wood

24

where the plaintiff had been given extensive leave over the course

25

of many years to treat the medical condition.

26

no reasonable juror could find on the facts of the present case

27

that the employer was moving forward as fast as possible to a

28

termination decision before the employee could obtain a medical
Page 38 - OPINION AND ORDER

It is not clear that

1

evaluation of what his condition was and how soon he could perform

2

the essential functions of his position if given the reasonable

3

accommodation of leave for medical treatment.

4

compelling facts” dicta referenced in Wood are presented by this

5

case.

6

Plaintiff could have been accommodated through an allowance of time

7

for medical care and treatment.

Thus, the “more

Accordingly, there is a genuine issue of fact as to whether

8

c.

Prong Three: Causation

9

The third and final prong of a prima facie case requires

10

Plaintiff to show that he suffered an adverse employment action

11

because of his disability.

12

Plaintiff’s termination would be considered an adverse employment

13

action, but they do dispute whether an adverse action was taken

14

because of Plaintiff’s disability.

15

permits

16

plaintiff to make a prima facie case that she was discriminated

17

against because of her disability.”

18

(quoting Henderson v. Jantzen, Inc., 79 Or. App. 654, 657 (1986));

19

see also Head v. Glacier Nw. Inc., 413 F.3d 1053, 1065 (9th Cir.

20

2005) (“[T]he ADA outlaws adverse employment decisions motivated,

21

even in part, by animus based on a plaintiff’s disability or

22

request for an accommodation——a motivating factor standard.”)

23

an

inference

of

The parties do not dispute whether

“In Oregon, ‘[e]vidence that

discrimination’

is

sufficient

for

a

Snead, 237 F.3d at 1089

Plaintiff has met his burden of proffering evidence which

24

permits an inference of discrimination.

25

to the contrary is based on Plaintiff’s testimony that neither he,

26

nor Defendant, had any knowledge regarding “what was wrong with

27

[him]” at the time of his termination. (Ambrose Dep. 246:9-247:1.)

28

Plaintiff’s testimony does not foreclose the possibility that
Page 39 - OPINION AND ORDER

Defendant’s only argument

1

Defendant knew about Plaintiff’s disability.

At the very minimum,

2

the record suggests that: (1) Plaintiff was involved in an accident

3

on December 30, 2011; (2) the casualty investigator contacted

4

Defendant after he interviewed Plaintiff at the hospital and

5

elicited information related to Plaintiff’s history of heart-

6

related issues; (3) Defendant was informed that Plaintiff could not

7

drive until he was cleared by a cardiologist; and (4) Defendant

8

terminated Plaintiff’s employment six days later.

9

these events, coupled with the information that was received,

The timing of

10

permits an inference of discrimination.

That is sufficient to

11

raise a genuine issue of fact as to the third and final element of

12

Plaintiff’s prima facie case of disability discrimination.

13

2.

Beyond the Prima Facie Case: Burden-Shifting

14

The

Ninth

Circuit

applies

the

McDonnell

Douglas

burden-

15

shifting framework to disability discrimination claims under the

16

ADA.

17

526425, at *4 (D. Or. Feb. 16, 2012).

18

the

19

discrimination, the burden shifts to the employer to provide some

20

legitimate,

21

discriminatory actions.

22

employer does so, the burden shifts back to the employee to

23

demonstrate

24

Weaving, 2012 WL 526425, at *4.

Weaving v. City of Hillsboro, No. 10–CV–1432–HZ, 2012 WL

employee

establishes

a

prima

nondiscriminatory

that

the

Under that framework, once
facie

reason

case

for

of

its

disability

allegedly

Shepard, 829 F. Supp. 2d at 963.

reason

was

pretext

for

If the

discrimination.

25

Because Plaintiff has established a prima facie case of

26

disability discrimination, Defendant must proffer a legitimate,

27

nondiscriminatory

explanation

28

“i.e.,

‘disclaims

one

that

Page 40 - OPINION AND ORDER

for
any

terminating
reliance

on

his
the

employment,
employee’s

1

disability in having taken the employment action.’”

2

451 F.3d at 1084 (quoting Snead, 237 F.3d at 1093).

3

safety review team determined that Plaintiff’s improper rest and

4

improper recognition of illness was the root cause of the accident,

5

making it “preventable” and in violation of DOT regulations.

6

safety

7

Plaintiff’s cold was so bad that, even after twice taking over-the

8

counter medication, he coughed so hard that he passed out and lost

9

control of his truck.”

review

team

emphasizes

that

they

were

Curry County,
Defendant’s

“aware

The
that

(Def.’s Mem. Supp. at 27.)

10

The evidence in the record that raises a material issue of

11

fact that Defendant’s proffered non-discriminatory reason is a

12

pretext includes the evidence referred to above at page forty-one,

13

lines ten through nineteen.

14

also serve to rebut the legitimate non-discriminatory reason for

15

termination offered by Defendant.

16

classic material issue of fact here.

17

The evidence of discrimination can

Who the jury believes is a

In addition, the emergency room doctor did “not believe that

18

simple

coughing

questioned

whether

19

Plaintiff experienced a “recurrence of his dysrythmia.”

(Ohman

20

Back Decl. Ex. B at 22.)

21

information was available to Defendant at the time of termination.

22

Absent a “few exceptions, conduct resulting from a disability

23

is considered to be part of the disability, rather than a separate

24

basis for termination.”

25

40).

26

particularly

27

reasonably accommodate a known disability that leads to discharge

“The

should

link

cause

and

The evidence in the record suggests this

Id. (quoting Humphrey, 239 F.3d at 1139-

between

strong

syncope”

where

28
Page 41 - OPINION AND ORDER

the
it

disability
is

the

and

termination

employer’s

failure

is
to

1

for performance inadequacies resulting from that disability.”

2

Humphrey, 239 F.3d at 1140.

3

The Ninth Circuit has, for example, “found that there was a

4

sufficient causal connection between the employee’s disability and

5

termination

6

absenteeism caused by migraine-related absences.”

7

Kimbro v. Atl. Richfield Co., 889 F.2d 869, 875 (9th Cir. 1989)).

8

Similarly, the Ninth Circuit has found that there was a sufficient

9

causal connection between the employee’s disability and termination

10

where the employee was discharged for absenteeism and tardiness

11

caused by obsessive compulsive disorder.

12

jury could reasonably find the requisite causal link between a

13

disability of OCD and [the employee]’s absenteeism and conclude

14

that

15

disability.”)

[the

where

the

employer]

employee

fired

was

[the

discharged

for

excessive

Id. (citing

See id. (holding that “a

employee]

because

of

her

16

Along similar lines, the employer in Curry County appeared to

17

argue that the employee’s “misconduct, if not resulting from his

18

disability, stemmed from his failure to take proper precautions in

19

light of his [epilepsy].”

20

Ninth Circuit was not persuaded by such an argument: “[A]n employer

21

could just as easily say that excessive absenteeism was caused by

22

an employee’s failure to arrive at work regardless of his migraine

23

headaches, or regardless of his obsessive compulsive disorder.

24

Thus,

25

distinction.”

26

we

think

that

Curry County, 451 F.3d at 1084 n.4.

the

case

law

does

not

sustain

The

this

Id. (internal citations omitted).

If the finder of fact determines Plaintiff’s accident resulted

27

from

his

disability,

as

28

suggests, Defendant’s explanation would, as a matter of law, fail
Page 42 - OPINION AND ORDER

the

emergency

room

doctor’s

report

1

to qualify as a legitimate, nondiscriminatory explanation for

2

Plaintiff’s discharge.

3

the

4

Plaintiff’s disability discrimination claim.

Court

denies

See Curry, 451 F.3d at 1084.

Defendant’s

motion

for

Accordingly,

summary

judgment

on

5

3.

Interactive Process

6

Ninth Circuit case law makes clear that employers bear “an

7

affirmative obligation to engage in an interactive process in order

8

to identify, if possible, a reasonable accommodation that would

9

permit [an employee] to retain his employment.”

10

interactive

11

exploration

12

individual employees, and neither side can delay or obstruct the

13

process.”

14

“engage in any such process, summary judgment is available only if

15

a reasonable finder of fact must conclude that there would in any

16

event have been no reasonable accommodation available.’” Curry

17

County, 451 F.3d at 1088 (citation omitted).

18

process
of

requires

Id. at 1088. “The

possible

communication

accommodations

Humphrey, 239 F.3d at 1137.

Defendant

does

process,

appear

claim

and

When an employer fails to

that

it

engaged

21

judgment would be inappropriate since a reasonable jury could

22

conclude the interactive process should have been used and could

23

also

24

accommodation was available.10

have

found

Under

any

circumstances, and in light of the rulings described above, summary

would

otherwise.

in

20

process

or

employers

interactive

that

faith

between

good-faith

19

conclude

good

to

and

a

these

reasonable

25
26
27
28

10

Plaintiff erroneously brought an independent cause of action
for failure to engage in interactive process. In Kramer v. Tosco
Corp., 233 F. App’x 593 (9th Cir. 2007), the employee appealed an
unfavorable jury verdict in his action alleging disability
discrimination under the ADA and Oregon law.
Id. at 595.
In
Page 43 - OPINION AND ORDER

1

C.

Workers’ Compensation Discrimination

2

Defendant moves for summary judgment on Plaintiff’s claim for

3

workers’ compensation discrimination on the grounds that: (1)

4

Plaintiff did not invoke the workers’ compensation system, which in

5

turn defeats Plaintiff’s ability to show a causal link between his

6

use of the system and an adverse employment action; and (2)

7

Plaintiff cannot establish that Defendant’s reason for terminating

8

his employment was pretext for discrimination.

9

Under ORS 659A.040, “[i]t is an unlawful employment practice

10

for an employer to discriminate against a worker with respect to

11

hire or tenure or any term or condition of employment because the

12

worker has . . . invoked or utilized the procedures provided for in

13

ORS chapter 656.”

14

facie case of injured worker discrimination, a plaintiff must show

15

that (1) he invoked the workers’ compensation system; (2) he was

16

discriminated against in the tenure, terms or conditions of his

17

employment; and (3) the discrimination was caused by the employee’s

18

invocation of workers’ compensation.”

19

962.

20

the

21

compensation discrimination.

22

93).

OR. REV. STAT. § 659A.040.

“To establish a prima

Shepard, 829 F. Supp. 2d at

The McDonnell Douglas burden-shifting framework applies if
plaintiff

establishes

a

prima

facie

case

of

workers’

Id. (citing Snead, 237 F.3d at 1092-

23
24
25
26
27
28

rejecting one of the employee’s assignments of error, the Ninth
Circuit stated: “[Plaintiff]’s proposed instruction would have
misled the jury into erroneously believing that there existed an
independent cause of action for failing to engage in the
interactive process. [Plaintiff’s employer] is not liable because,
as the jury found, [he] was not a qualified individual, with or
without reasonable accommodation.” Id. at 596.
Page 44 - OPINION AND ORDER

1

Defendant’s first argument——which challenges the first and

2

third elements of Plaintiff’s prima facie case——is easily resolved.

3

Under Oregon law, a claimant is not required to provide a formal

4

written notice of an injury or disease; rather, the workers’

5

compensation system can be invoked by “a worker’s reporting of an

6

on-the-job injury or a perception by the employer that the worker

7

has been injured on the job or will report an injury.”

8

Altimeter, Inc., 230 Or. App. 715, 726 (2009). When viewed in the

9

light most favorable to Plaintiff, the record suggests that his

10

December 30, 2011 telephone call to Defendant’s safety department

11

satisfies the Herbert standard.

Herbert v.

12

Plaintiff’s phone call December 30th and the report Defendant

13

received from its investigator LaLande shows Defendant knew (1)

14

there had been a serious accident, (2) Plaintiff had ridden in an

15

ambulance to the hospital for which there would be a “medical

16

bill,” (3) Plaintiff had been examined at the hospital and had some

17

injury due to the seatbelt, again with an anticipated medical bill

18

from the emergency room visit, and (4) Plaintiff would be off work

19

unable

20

suggesting possible time loss.

to

drive

until

he

was

checked

out

by

a

cardiologist

21

To extent Defendant suggests that a compensable injury is a

22

prerequisite to invoking the workers’ compensation system, the

23

Court is not persuaded by the argument.

24

Oregon Workers’ Compensation Board “routinely addresses questions

25

regarding the compensability of workplace injuries,” Panpat v.

26

Owens-Brockway Glass Container, Inc., 334 Or. 342, 347 (2002), and

27

in

28

compensation case requires the invocation of the doctrine of

some

instances,

courts

Page 45 - OPINION AND ORDER

must

As a general matter, the

address

whether

a

workers’

1

“primary

jurisdiction,”

2

jurisdiction”

3

administrative agency the power to decide a controversy or treat an

4

issue, the courts will refrain from entertaining the case until the

5

agency has fulfilled its statutory obligation.”

6

Corp. v. Bd. of Forestry, 325 Or. 185, 191 n.8 (1997).

7

parties’ briefing adequately discuss these matters.

provides

see
that,

id.

The

“where

doctrine

the

law

of
vests

“primary
in

an

Boise Cascade
Neither

8

Moreover, the Oregon Court of Appeals’ decision in Parker v.

9

Fred Meyer, Inc., 152 Or. App. 652 (1998), suggests that ORS

10

659A.040 would not condition an employer’s liability for workers’

11

compensation

12

compensability.

13

employer’s motion for summary judgment on workers’ compensation

14

retaliation and disability discrimination claims, arguing that the

15

trial court erroneously gave issue preclusive effect to statements

16

made by an administrative law judge (“ALJ”) in the course of

17

evaluating whether his injury was compensable.

18

the rejecting the employer’s argument, the Oregon Court of Appeals

19

stated:

20
21
22
23

discrimination

on

a

prior

determination

of

In Parker, the employee appealed the grant of his

Id. at 654-55.

In

[T]here is nothing inconsistent in an employer reasonably
believing that a worker has not suffered an injury and
also terminating the worker for having filed a workers’
compensation claim. In other words, an employer may be
motivated to fire a worker because the worker intends to
file a valid claim or because the worker intends to file
an invalid claim.
Either action would violate ORS
659.410[, now renumbered as ORS 659A.109].

24
25

Id. at 1274.11

26
27
28

11

ORS 659A.109 uses language quite similar to that of ORS
659A.040. See OR. REV. STAT. § 659A.109 (“It is an unlawful
employment practice for an employer to discriminate against an
Page 46 - OPINION AND ORDER

1

Defendant next argues that, “[a]s with Plaintiff’s disability

2

discrimination theory, he cannot establish that [Defendant]’s

3

legitimate, nondiscriminatory reason for his termination [was

4

pretext for discrimination].”

5

discussed above, the Court has concluded that there is a genuine

6

issue of fact as to whether Defendant’s explanation constituted a

7

valid nondiscriminatory explanation, which obviated Plaintiff’s

8

need to demonstrate that Defendant’s explanation was mere pretext.

9

Absent an explanation or argument as to why that conclusion should

10

not apply with equal force here, Defendant is not entitled to

11

summary judgment on Plaintiff’s claim for workers’ compensation

12

discrimination.

13

06-1187-HU,

14

(concluding that the court’s ADA analysis “applie[d] equally to the

15

worker’s compensation claim.”)

16

D.

(Def.’s Mem. Supp. at 34.)

As

See Mihailescu v. Marysville Nursing Home, No. CV

2007

WL

4270751,

at

*15

(D.

Or.

Dec.

3,

2007)

After-Acquired Evidence

17

Defendant argues that the doctrine of after-acquired evidence

18

is a complete bar to recovery and thus it is entitled to summary

19

judgment on all of Plaintiff’s claims.

20

Alternatively, Defendant argues that Plaintiff cannot recover

21

damages after September 7, 2012, when it discovered that Plaintiff

22

made material misrepresentations to Defendant and the DOT medical

23

examiner regarding his past medical history.

(Def.’s Mem. Supp. at 15.)

24
25
26
27
28

individual with respect to hire or tenure or any term or condition
of employment because the individual has applied for benefits or
invoked or used the procedures provided for in ORS 659A.103 to
659A.145.”)
Page 47 - OPINION AND ORDER

1

Defendant is not entitled to summary judgment on the basis of

2

after-acquired evidence.

3

80 F.3d 1406 (9th Cir. 1996), the employee appealed the district

4

court’s grant of summary judgment on his action under the Age

5

Discrimination in Employment Act (“ADEA”).

6

employer argued that, even assuming there was a genuine issue of

7

fact as to whether it discriminated on the basis of age, summary

8

judgment was still appropriate based on after-acquired evidence.

9

Id. at 1412.

10

In Schnidrig v. Columbia Machine, Inc.,

Id. at 1408.

The

The Ninth Circuit rejected the employer’s argument:

14

The Supreme Court [has] held that the use of
after-acquired evidence of wrongdoing by an employee that
would have resulted in their termination as a bar to all
relief for an employer’s earlier act of discrimination is
inconsistent
with
the
purpose
of
the
ADEA. . . . Therefore, although [the employer]’s
discovery of after-acquired evidence may bear upon the
specific remedy to be ordered, it does not warrant the
granting of summary judgment.

15

Id. (internal citations omitted); see also Rooney v. Koch Air, LLC,

16

410 F.3d 376, 382 (7th Cir. 2005) (seeing no distinction between

17

ADEA and ADA claims for the purposes of the after-acquired evidence

18

doctrine); Burkhart v. Intuit, Inc., No. CV–07–675–TUC–CKJ, 2009 WL

19

528603, at *12 (D. Ariz. Mar. 2, 2009) (stating that “the use of

20

after-acquired evidence of wrongdoing to [completely] bar relief

21

for an employer’s act of discrimination is . . . inconsistent with

22

the purpose of the ADA.”)

11
12
13

23

Similarly, in Seegert v. Monson Trucking, Inc., 717 F. Supp.

24

2d 863 (D. Minn. 2010), the employer argued that after-acquired

25

evidence of material misrepresentations on the employee’s DOT

26

health history form rendered him unqualified for the commercial

27

truck driver position and thus acted as a complete bar to his

28

recovery.

Id. at 867.

The Monson court concluded that such an

Page 48 - OPINION AND ORDER

1

argument had been rejected by the Supreme Court.

2

(citing McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 358

3

(1995)).

4
5
6
7
8

Id. at 868

As Monson explained:

Although
McKennon
dealt
with
only
[on-the-job
misconduct], each Circuit that has confronted the issue
has extended McKennon's holding to include . . . cases in
which the after-acquired evidence concerns an employee’s
alleged misrepresentation in the job application
process . . . . While the Eighth Circuit has not
expressly ruled on this issue, Defendant provides no
authority . . . and the Court is aware of none, in
support of departing from the holdings of the other
circuits.

9
10
11

Therefore, misconduct by [the employee], which [the
employer] learned of post-termination, does not act as a
complete bar to his [ADA and FMLA] claims or [Minnesota
Human Rights Act] claim but may be used to limit [his]
remedy.

12
13

Id. at 868-69 (citations omitted).

14

employer’s

15

support summary judgment in its favor on the employee’s ADA claim.

16

Id. at 870.

contention

that

the

Monson went on to reject the

after-acquired

evidence

could

17

Consistent with Schnidrig and Monson, the Court concludes that

18

the doctrine of after-acquired evidence does not operate as a

19

complete bar to recovery, nor does it entitle Defendant to summary

20

judgment on all claims.

21
22
23
24
25
26
27
28

Defendant is correct, however, that Plaintiff’s remedy can be
limited under the doctrine:
[A]fter-acquired evidence of wrongdoing generally limits
an employee’s remedy in three significant ways. If an
employer discovers that the plaintiff committed an act of
wrongdoing and can establish that the ‘wrongdoing was of
such severity that the employee in fact would have been
terminated on those grounds alone if the employer had
known of it at the time of the discharge,’ the employer
does not have to offer reinstatement or provide front
pay, and only has to provide backpay ‘from the date of
the unlawful discharge to the date the new information
was discovered.’
Page 49 - OPINION AND ORDER

1

O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 759 (9th

2

Cir.

3

limitations, an employer must: “(1) present after-acquired evidence

4

of an employee’s misconduct; and (2) prove by a preponderance of

5

the evidence that it would have [in fact] fired the employee for

6

that misconduct.”

7

No. CV 06-195-ST, 2008 WL 44648, at *4 (D. Or. Jan. 2, 2008).

1996)

(citation

omitted).

In

order

to

impose

such

Wilken v. Cascadia Behavioral Healthcare, Inc.,

8

For the purposes of the pending motion, Defendant relies on

9

Plaintiff’s allegations and admissions, which includes, inter alia,

10

claims that Plaintiff informed Nucci of the 2005 incident, the 2006

11

incident and the catheter ablation procedure.

12

material issue of fact as to whether Defendant would have in fact

13

fired Plaintiff.

14

inquiry “reflects a recognition that employers often say they will

15

discharge employees for certain misconduct while in practice they

16

do not.”)

17

Defendant’s motion on after-acquired evidence should be denied and

18

left for trial.

See O’Day, 79 F.3d at 759 (recognizing the

This issue should be decided by the jury.

19
20
21

This raises a

Thus,

V. CONCLUSION
For the reasons stated, Defendant’s motion (Docket No. 32) for
summary judgment is granted in part and denied in part.

22

IT IS SO ORDERED.

23

Dated this

13th

day of February, 2014.
/s/ Dennis J. Hubel
_________________________________
DENNIS J. HUBEL
United States Magistrate Judge

24
25
26
27
28
Page 50 - OPINION AND ORDER