Vasnaik v. Providence Health & Services-Oregon
Filing
38
OPINION & ORDER: Defendant's motion for summary judgment 19 is GRANTED in part and DENIED in part. See 26-page opinion & order attached. Signed on 5/9/2015 by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PATRICK VASNAIK,
No. 3:14-cv-00027-HZ
Plaintiff,
OPINION & ORDER
v.
PROVIDENCE HEALTH & SERVICES–
OREGON, an Oregon corporation, d.b.a.
ST. VINCENT MEDICAL CENTER,
Defendant.
Thomas K. Doyle
Bennett Hartman Morris & Kaplan, LLP
210 S.W. Morrison Street
Suite 500
Portland, OR 97204
Attorney for Plaintiff
Janine C. Blatt
Jeffrey J. Druckman
Druckman & Blatt, PC
0424 S.W. Iowa Street
Portland, OR 97239
Attorneys for Defendant
1 - OPINION & ORDER
HERNÁNDEZ, District Judge:
Plaintiff Patrick Vasnaik brings this employment discrimination action against his former
employer, Defendant Providence Health Services, d.b.a. St. Vincent’s Medical Center
(“Providence”). Mr. Vasnaik claims Providence subjected him to heightened and unwarranted
scrutiny because of his age and a series of work-related injuries. His complaint originally alleged
race, national origin, age, disability, and injured worker discrimination; he voluntarily dismissed
the race and national origin claims.
Currently before the Court is Providence’s motion for summary judgment on his
remaining claims. Providence asserts that Vasnaik’s termination resulted from repeated policy
violations, culminating in a written warning for three serious incidents and subsequent
termination when he violated Providence parking rules he was charged with enforcing.
Vasnaik fails to establish a prima facie case for either age or disability discrimination,
and Providence’s motion for summary judgment on those claims is granted. He does, however,
raise the possibility that Providence’s reasons for terminating him could have been a pretext for
discriminating against him because he invoked the workers’ compensation system. Accordingly,
Providence’s motion for summary judgment on Vasnaik’s ninth claim for relief is denied.
BACKGROUND
Vasnaik worked as a security officer for Providence from July, 2006 through his
termination in September of 2012. Compl. ¶¶ 10, 19. He was born in October of 1945, and was
sixty-six years old when was he was fired. Doyle Declaration (“Decl.”) Ex. A, ECF No. 28-1, at
1; Compl. ¶ 30.
During his approximately six-year stint at Providence, Vasnaik received annual
performance evaluations. Doyle Decl. Exs. H–L, ECF No. 28-8–28-12. His performance ratings
2 - OPINION & ORDER
fluctuated generally between “meeting some expectations” (or “requiring improvement”) and
“exceeding expectations.” Id. Of note, he exceeded expectations in the “Attendance and
Punctuality” category several times.” Doyle Decl. Ex. H, ECF No. 28-8, at 9; Ex. I, ECF No. 289, at 9; Ex. K, ECF No. 28-11, at 2.
In addition to the formal evaluations, Vasnaik received both positive and negative
feedback on his performance. In July 2011, Allen Mullen, Manager of Providence’s Department
of Security Services, received a “packet of thanks” for Vasnaik and another security officer.
Doyle Decl. Ex. N, ECF No. 28-14. Vasnaik earned a “Message of Thanks for the Support” from
another department at Providence for participating in a training video regarding lost patient
property. Doyle Decl. Exs. O–P, ECF Nos. 28-15–28-16.
Although he received high marks for attendance at his annual reviews, Vasnaik’s
supervisors occasionally coached him on attendance and punctuality. He was coached in March
of 2010 about the need to arrive to work on time and be prepared to take over his assigned post at
the start of his shift. Defendant’s Motion for Summary Judgment (“Def. Mot.”) Ex. 30, ECF No.
19-21. In May of 2010, Vasnaik received what Providence calls a “documented coaching” from
his supervisor Steve Wilson after he accumulated two tardies and three absences in a rolling 12month period, the maximum allowed under Providence policy. Vasnaik Deposition (“Depo.”),
ECF No. 19-1, at 32–35; Def. Mot. Ex. 13, ECF No. 19-11. He received a written warning in
May 2011 in part because of a “No Show/No Call” earlier that month. Def. Mot. Ex. 30, ECF
No. 19-21.
Vasnaik’s supervisors also coached and counseled him for errors on the job and when he
violated Providence’s employee policies and procedures. For instance, one of his duties as a
security officer was to record and secure items found on hospital property. Def. Mot. Ex. 8, ECF
3 - OPINION & ORDER
No. 19-8, at 1. Vasnaik twice received a documented coaching for violating lost and found
procedures: once in 2010 after he mistakenly took home a lost wallet he had placed in his pocket
and forgot to log, and again in 2011 when he erroneously informed a woman her lost necklace
was found, much to her disappointment. Vasnaik Depo., ECF No. 19-1, at 28–32, 36–38; Def.
Mot. Exs. 10, 18, ECF No. 19-10, 19-18.
Another part of Vasnaik’s job was to park patients’ vehicles if the patient was taken into
the hospital immediately because of his or her condition. Vasnaik Depo., ECF No. 19-1, at 40–
41. In February 2011, Vasnaik parked a patient’s vehicle in a designated disabled space without
the required permit; the patient received a $300 ticket, and Vasnaik received a written coaching
from Wilson. Id. at 40–44; Def. Mot. Ex. 19, ECF No. 19-14.
Vasnaik was also coached on (1) radio communications and emergency room standby
procedures, Def. Mot. Ex. 3, ECF No. 19-3; (2) relieving other officers from their posts in a
timely manner, Def. Mot. Ex. 4, ECF No. 19-4; (3) working with other departments, Def. Mot.
Ex. 30, ECF No. 19-21, at 2; and (4) proper radio use and responding to radio calls, Vasnaik
Depo., ECF No. 19-1, at 66–67; Def. Mot. Ex. 34, ECF No. 19-24.
One criticism of Vasnaik’s work came up repeatedly in his annual evaluations and
through other coachings: he struggled to properly prioritize security calls or respond to
emergency situations with sufficient urgency. His 2009 annual review stated that Vasnaik “could
use a little work in prioritizing calls he responds to . . . .” Doyle Decl. Ex. J, ECF No. 28-10, at
11. He was not answering officer calls when eating his lunch, and Wilson “had to again explain
to him that we are subject to call at any time.” Def. Mot. Ex. 1, ECF No. 19-2, at 6. Wilson
completed Vasnaik’s 2010 review in September of that year, and provided comments for several
areas where Vasnaik’s performance rated as “Requires Improvement”:
4 - OPINION & ORDER
•
“Patrick needs to be a little more focused on the priority calls. He appears to have
one speed in which he does everything and there are those occasions where we need
to shift gears and pick up the pace. The safety of co-workers may depend on it.” Def.
Reply, Ex. 17, ECF No. 32-6, at 4.
•
“He needs to speed up his pace on calls requiring a higher priority level . . . . Any stat
officer assistance call takes priority followed closely by any emergency code call.
The pace needs to be picked up and not casually walk to the call.” Id. at 11.
•
“When an officer calls for assistance, do not take your time getting there. You need to
pick up your pace . . . . When responding to an officer assistance call, drop what you
are doing and immediately respond . . . .” Id. at 14.
Criticism of Vasnaik’s performance in this area continued in January of 2011: “Patrick responds
to all situations at one casual pace. I explained to him the importance of picking up the pace for
any emergency call . . . .” Def. Mot. Ex. 1, ECF No. 19-2 at 3. In 2012, Wilson “gave Patrick a
handout to help him understand the important of relieving officers on time, and to help him try
and understand how to prioritize some of the calls we receive. Id. at 1.
Two more serious incidents led to a written warning for Vasnaik in May of 2011. One of
the “core” responsibilities of the security guards at Providence was to monitor so-called “stand
by” patients—patients thought to be in immediate danger of harming themselves or others due to
mental illness. Def. Mot. Ex. 24, ECF No. 19-16, at 2; Vasnaik Depo., ECF No. 19-1, at 46. The
primary function of a security guard assigned to stand by duty is “remain vigilant in providing
watch over the patient” to ensure he or she does not leave hospital grounds. Def. Mot. Ex. 24,
ECF No. 19-16, at 2. On April 26, 2011, Vasnaik was assigned to guard a stand by patient, but a
technician walked right past him and moved the patient without him noticing; he was using a
5 - OPINION & ORDER
computer in the area and admits that he failed to maintain appropriate attention. Def. Mot. Ex.
29, ECF No. 19-20 at 1–4; Vasnaik Depo., ECF No. 19-1, at 57–58.
Shortly thereafter, Vasnaik again violated security procedures when he walked away
from a marked patrol vehicle with the keys in the ignition and the engine running. Def. Mot. Ex.
29, ECF No. 19-20, at 1, 3; Vasnaik Depo., ECF No. 19-1, at 60.
Those incidents, along with Vasnaik’s May 2011 “No Show/No Call” resulted in a
written warning and a “Work Plan for Improvement” that included performance standards for
attendance, vehicle usage, and prioritizing calls. Def. Mot. Ex. 30, ECF No. 19-21; Ex. 31, ECF
No. 19-22. Vasnaik admitted that his conduct violated Providence policies, and that the written
warning and work plan he received were reasonable. Vasnaik Depo, ECF No. 19-1, at 61–62;
ECF No. 32-1, at 2.
Vasnaik’s final violation of Providence policy resulted in his termination. On September
3, 2012, he parked his personal vehicle in the West Parking Structure, which is reserved for
patients and visitors. Vasnaik Depo., ECF No. 19-1, at 72–73. Since it was Labor Day, the area
was essentially empty. Id. at 76. It is against Providence’s Parking Policy for staff to park in
patient and visitor spaces, which includes portions of the West Parking Structure, at any time.
Def. Mot. Ex. 41, ECF No. 19-29, at 4. When Mullen later interviewed him about the incident,
Vasnaik stated he parked there because he was running late, though he later claimed to have
done so because of an injured knee. Def. Mot. Ex. 44, ECF No. 19-29, at 1; Wilson Depo., ECF
No. 28-22, at 8–9. There is an exception to the parking policy whereby employees with a
temporary disability and the proper permit can park in any designated disabled parking space
regardless of its location on the Providence campus. Def. Mot. Ex. 41, ECF No. 19-29, at 2.
6 - OPINION & ORDER
Vasnaik did not have such a permit, nor did he seek the assistance of Providence’s Employee
Health Services department to obtain one. Vasnaik Depo., ECF No. 19-1, at 75-78.
After Mullen investigated the parking incident, he concluded Vasnaik should be
discharged, and Providence terminated him on September 17, 2012. Def. Mot. Ex. 44–45, ECF
Nos. 19-29, 19-30. The termination letter referenced the policy violations which precipitated
Vasnaik’s 2011 written warning, “on-going coaching and counseling about [Vasnaik’s] failure to
demonstrate sound judgment and meet performance standards,” and the September 3 parking
incident. Def. Mot. Ex. 45, ECF No. 19-30.
While working for Providence, Vasnaik reported to employee health services four knee
injuries of varying severity. On July 16, 2009, Vasnaik suffered and abrasion on his knee while
working with an agitated patient. Doyle Decl., Ex. A, ECF No. 28-1. He reported the injury “as a
matter of protocol.” Id. In June 2010, Vasnaik severely injured his right knee attempting to
restrain a psychiatric patient. Doyle Decl., Ex. B, Dkt #28-2. Plaintiff underwent knee surgery
and received workers’ compensation benefits for the injury, and took nearly seven months of
approved medical leave to recover. Compl. ¶ 11. He injured his left knee again on August 30,
2011, while “handling a very aggressive patient.” Doyle Decl. Ex. C, ECF No. 28-3. Finally, on
September 2, 2012, he suffered a bite to the left forearm and an unspecified left knee injury
while attempting to control an agitated psychiatric patient by “tak[ing] her to the ground . . . .”
Doyle Decl., Ex. D, ECF No. 28-4. Providence filed a workers’ compensation claim for his
injury on September 21, 2012, four days after he was terminated. Vasnaik Depo., ECF No. 19-1,
at 93.
7 - OPINION & ORDER
After his termination, Vasnaik filed the present suit asserting federal and state
discrimination claims against Providence based on his race, national origin, age, and on-the-job
injuries. Compl. ¶¶ 20-99. Defendants now move for summary judgment on all claims; Vasnaik
agreed to not oppose dismissal of his claims for race and national origin discrimination, but
opposes summary judgment on his age, disability, and injured workers’ discrimination claims.
Def. Mot. at 4; Pl. Resp. at 1.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”
showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927–28
(9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the
pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218
(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the
8 - OPINION & ORDER
light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d
1108, 1112 (9th Cir. 2011).
If the factual context makes the nonmoving party’s claim as to the existence of a material
issue of fact implausible, that party must come forward with more persuasive evidence to support
his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
DISCUSSION
Vasnaik’s remaining claims include (1) age discrimination under the Age Discrimination
in Employment Act (ADEA), 28 U.S.C. § 623; (2) disability discrimination under the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12112; (3) age discrimination under ORS § 659A.030;
(4) injured worker discrimination under ORS § 659A.040; and (5) disability discrimination under
ORS § 659A.112.
A plaintiff in an employment discrimination suit may prevail on summary judgment by
providing actual evidence of discrimination or by using the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248 (1981). Lowe v. City of Monrovia, 775 F.2d 998, 1005–07 (9th Cir.
1985). “As a general matter, the plaintiff in an employment discrimination action need produce
very little evidence in order to overcome an employer’s motion for summary judgment.” Chuang
v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000). “The requisite degree of
proof necessary to establish a prima facie case . . . on summary judgment is minimal and does
not even need to rise to the level of a preponderance of the evidence.” Schechner v. KPIX-TV,
686 F.3d 1018, 1022 (9th Cir. 2012) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th
Cir. 1994).
9 - OPINION & ORDER
The burden-shifting framework requires the plaintiff to first establish a prima facie case
of unlawful discrimination; if successful, the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for its action. McGinest v. GTE Serv. Corp., 360 F.3d
1103, 1122 n.16 (9th Cir. 2004). If the defendant does so, the plaintiff must show that the
articulated reason is a pretext for discrimination. Id.; Aragon v. Republic Silver State Disposal,
Inc., 292 F.3d 654, 658–59 (9th Cir. 2002).
A plaintiff may rely on the McDonnell Douglas burden-shifting framework for Oregon
Chapter 659 claims adjudicated in federal court, regardless of whether the jurisdictional basis for
the state claim is diversity or supplemental jurisdiction. Dawson v. Entek Int’l, 630 F.3d 928,
934–35 (9th Cir. 2011).
I.
Age Discrimination
Vasnaik alleges that Providence discriminated against him based on his age by subjecting
him to greater scrutiny and unfair corrective action, and ultimately terminating him. Pl. Resp. at
13. Primarily, his claim rests on his supervisor’s repeated references to “pace” in his written
evaluations and verbal coachings. Such criticism, he argues, could be interpreted by a reasonable
juror as “veiled discrimination.” Pl. Resp. at 13–14. Vasnaik has failed, however, to produce
evidence of several elements necessary to establish a prima facie case on this claim, and
Providence’s motion for summary judgment on Vasnaik’s age discrimination claim is granted.
To establish a prima facie case of age discrimination, a plaintiff must offer evidence that
gives rise to an inference of unlawful discrimination, either through introduction of actual
evidence of discriminatory motive or through the McDonnell Douglas presumption. Lowe, 775
F.2d at 1005–07. Under the presumption, a prima facie case of age discrimination requires
evidence the plaintiff was: (1) at least 40 years old; (2) performing his job in a satisfactory
10 - OPINION & ORDER
manner; (3) discharged; and (4) replaced by a substantially younger employee with equal or
inferior qualifications. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996).
Vasnaik does not indicate whether he is attempting to rely on actual evidence of
discriminatory motive or the McDonnell Douglas presumption, but his age discrimination claim
fails either way. He has not offered any evidence, direct or circumstantial, of Providence’s
discriminatory motive. The ongoing criticism of his “pace” and call prioritization does not
explicitly reference his age, which weakens any suggestion that such comments were driven by
age-based animus. Compare Branscomb v. Group USA, Inc., 475 F. App’x 134, 136 (9th. Cir.
2012) 1 (statement that employee was “burned out” was not sufficient to show discrimination
0F
based on age), with Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000)
(comments that employee “was so old he must have come over on the Mayflower” and “was too
damn old to do his job” were evidence of age-based animus), and Schnidrig v. Columbia Mach.,
Inc., 80 F.3d 1406, 1411 (9th Cir. 1996) (employer’s stated desire for “somebody younger for the
job” was evidence of age-based animus). Moreover, the Ninth Circuit has rejected statements
using “far more suggestive words” as insufficient to support an inference of discriminatory
motive. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1284 (9th Cir. 2000) (holding that the
employer’s use of the word “promotable” by itself did not give rise to such an inference) (citing
Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993) (same holding for the phrase “[w]e
don't necessarily like grey hair”); Nidds, 113 F.3d at 918–19 (“old timers”); Rose v. Wells Fargo
& Co., 902 F.2d 1417, 1423 (9th Cir. 1990) (“old-boy network”).
References to Vasnaik’s “pace” are even more tenuously related to age. Read in context,
those criticisms are directed at Vasnaik’s inability to recognize the importance of answering
1
The Court may cite to unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S.
Ct. App. 9th Cir. Rule 36-3(b) and Fed. R. App. P. 32.1(a).
11 - OPINION & ORDER
higher priority calls more quickly: “Patrick responds to all situations at one casual pace,” his
supervisor wrote. “I explained to him the importance of picking up the pace for any emergency
call and any call where another officer needs assistance.” Def. Mot. Ex. 30, ECF No. 19-2, at 3.
That is a far-cry from the examples cited above where an employer hurled age-based insults or
overtly refused to hire a candidate because they were looking for “somebody younger for the
job.” Statements about his “pace” are not, on their own, indicative of any discriminatory animus
toward Vasnaik.
Vasnaik argues that, combined with references to pace, circumstantial evidence of
unwarranted treatment such as “discipline for acceptable rates of absenteeism,” and “imposition
of a work plan for minor policy violations” could show Providence’s discriminatory motives.
Vasnaik is correct that there is no evidence in the record that he actually ever exceeded the
allowed number of tardies or absences. But Wilson testified it was policy to initiate “counseling”
with any employee who reached the maximum of five such occurrences to help them avoid being
“out of compliance.” Wilson Depo., ECF No. 32-4 at 8–9. Vasnaik’s termination letter does not
mention attendance as a reason Providence decided to let him go. Def. Mot. Ex. 45, ECF No. 1930. And Vasnaik himself admits that the written warning and work plan were a fair result of the
three 2011 incidents where he walked away from a running patrol car, lost track of a stand-by
patient, and was a no call/no show for a scheduled shift. Vasnaik Depo., ECF No. 19-1, at 62–63.
There is simply not enough evidence, circumstantial or otherwise, to show Providence had a
discriminatory motive.
If Vasnaik is relying on the McDonnell Douglas presumption, his claim fails because he
does not offer any evidence regarding his replacement. Although this fourth element is flexible
“where the discharge occurs in the context of a general reduction in the employer’s work force,”
12 - OPINION & ORDER
there was no such reduction here. Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 n.2
(9th Cir. 2008); Siring v. Or. State Bd. of Higher Educ. ex rel. E. Or. Univ., 927 F. Supp. 2d
1030, 1055 n.3 (D. Or. 2012) (“[T]his element is only flexible when the discharge results from a
general reduction in work force.”). The only relevant evidence in the record about another
security officer actually cuts against Vasnaik’s case. Mullen testified that he had decided to fire a
twenty-seven year old officer for losing track of a stand-by patient, but the employee resigned
before he could do so. Mullen Decl., ECF No. 20, at ¶ 5. That tends to support Providence’s
assertions it did not treat Vasnaik unfairly because of his age—Vasnaik received a written
warning in part based on the same violation, and he admitted the written warning was “fair.”
Vasnaik Depo., ECF No. 19-1 at 62–63. Vasnaik has not produced any other comparator
evidence, and without such support for one of the required elements, his claim must fail.
The Court finds no genuine issues of material fact regarding Vasnaik’s age discrimination
claims, and Providence’s motion for summary judgment on those claims is granted.
II.
Disability Discrimination
Vasnaik’s state and federal claims for disability discrimination are similar to his age-
discrimination claims: that Providence unfairly subjected him to greater scrutiny, corrective
action, and ultimately termination based on his knee injury. Compl. ¶¶ 53–60. He also argues
that Providence “failed to identify and implement appropriate reasonable accommodations” for
his knee injury. Pl. Resp. at 15. These claims rest primarily on his supervisor’s regular coaching
about his “pace” responding to emergency or high priority security calls. But Vasnaik does not
provide sufficient evidence that his knee injury or injuries met the statutory definition of
“disability”, and thus does not state the prima facie case for disability discrimination or failure to
accommodate.
13 - OPINION & ORDER
The ADA makes it unlawful for employers within its scope to “discriminate against a
qualified individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a); see also 42 U.S.C. § 12111(5)
(defining employer). To establish a prima facie case of disability discrimination under the ADA,
plaintiff must show that he (1) has or is perceived as having a disability; (2) is a qualified
individual, and (3) was unlawfully discriminated against because of his disability. Nunes v. WalMart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). The state and federal standards are
identical for disability discrimination. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080,
1087 (9th Cir. 2001); see also Scott v. Sears, Roebuck & Co., 395 F. Supp. 2d 961, 981 (D. Or.
2005) (“The burden shifting analysis of McDonnell Douglas applies to all claims brought under
O.R.S. 659A.”); Conley v. City of Lincoln City, No. Civ. 02-216-AS, 2004 WL 948427, at *13
(D. Or. Apr. 20, 2004) (citing cases for the proposition that Oregon courts consistently rely on
federal case law interpreting Title VII to interpret Chapter 659).
Under the ADA, an employee is disabled if he or she (1) has a physical or mental
impairment that substantially limits one or more of the individual's major life activities; (2) has a
record of the impairment; or (3) is regarded as having an impairment. 42 U.S.C. § 12102(1). A
2008 amendment to the ADA instructs courts to construe the definition of disability “in favor of
broad coverage of individuals . . . to the maximum extent permitted by the terms of this chapter.”
42 U.S.C. § 12102(4)(A); Weaving v. City of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014).
“An impairment need not prevent, or significantly or severely restrict, the individual from
performing a major life activity in order to be considered substantially limiting. Nonetheless, not
14 - OPINION & ORDER
every impairment will constitute a disability within the meaning of this section.” 29 C.F.R.
§ 1630.2(j)(1)(ii).
Vasnaik claims that his “knee injuries constituted a physical impairment that substantially
limited one or more major life activities.” Compl. ¶ 56. He contends his “age and knee injuries
substantially limited his quickness on his feet.” Pl. Resp. at 4. His knee “had severe damages
from multiple causes, some of which could never be repaired.” Id. at 15. The 2010 torn meniscus
he suffered while attempting to restrain a patient was his primary injury, and the surgery to
correct it required a seven-month recovery period. Id.; Vasnaik Depo., Dkt. 19-1, at 156. But
“even after that recovery period ended,” Vasnaik claims that his “knee continued to hamper his
mobility and he continued to suffer repeated complications,” meaning “[h]is knee impairment
constituted a disability . . . .” Pl. Resp. at 15.
The only evidence in the record that Vasnaik cites to support these assertions is an
independent medical examination report from June, 20, 2010, before his corrective knee surgery
and seven-month medical leave. Id. (citing Doyle Decl. Ex. Y, ECF No. 28-25, at 9–10). Taking
that evidence as true, it still does not establish the knee injuries substantially limited any of
Vasnaik’s major life activity after his surgery and recovery. In fact, other evidence in the record
suggests the injury, once repaired, did not substantially limit his work or other major life
activities. After his surgery and leave, Vasnaik obtained a full release from his physician with no
physical restrictions, and he testified that he was able to meet the physical functions of his job at
all times. Vasnaik Depo, ECF No. 19-1, at 91, 99, 100.
Vasnaik offers no legal authority for his assertion that “quickness on his feet” is a major
life activity the limitation of which could form the basis for a disability. See Pl. Resp. at 15. The
ADA includes a long list of “major life activities,” including, but not limited to “caring for
15 - OPINION & ORDER
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and
working.” 42 U.S.C.A. § 12102(2). Being “quick on one’s feet” does not constitute the same
core life activities included in the statute. To the extent Vasnaik’s argument implies the knee
injury or injuries hampered his mobility, the evidence in the record does not support the
conclusion that his mobility was “substantially limited,” even considering the 2008 amendments
broadening the scope of that language. See, e.g., Voiles v. Reavis, No. 1-CV-1166 JLS BGS,
2014 WL 5092664, at *14 (S.D. Cal. Mar. 3, 2014) (finding plaintiff’s mobility was
“substantially limited” because a workplace injury required him to wear a solid metal brace to
walk at all); Doud v. Yellow Cab Co. of Reno, No. 3:13-CV-00664-MMD, 2014 WL 4302552,
at *5 n.5 (D. Nev. Aug. 28, 2014) (finding a substantial limitation where plaintiff lost a leg to
cancer and required either a battery-operated scooter or crutches for mobility).
Vasnaik’s argument that Providence failed to accommodate his disability fails for two
reasons. First, he did not allege a failure to accommodate claim in his complaint. See Compl. ¶¶
53–60; 92–99. He cannot now, at summary judgment, advance a new legal theory as a basis for
recovery. See Patel v. City of Long Beach, 564 Fed. Appx. 881, 882 (9th Cir. 2014); Coleman v.
Quaker Oats Co., 232 F.3d 1271, 1292–93 (9th Cir. 2000) (explaining that a plaintiff could not
proceed with new theory not pled in complaint). Second, his failure to produce evidence that he
was substantially limited in a major life activity, i.e. disabled, is fatal to his accommodation
claim. See 42 U.S.C. § 12112(b)(5)(A) (prohibiting a covered employer from discriminating
“against a qualified individual on the basis of disability” by, among others, “not making
reasonable accommodations[.]”)
16 - OPINION & ORDER
Like his claim for age discrimination, Vasnaik has simply failed to provide sufficient
evidence to establish a prima facie claim for discrimination based on a disability or failure to
accommodate. Providence’s motion for summary judgment is, therefore, granted on Vasnaik’s
federal and state claims for disability discrimination as well.
III.
Oregon Injured Worker Discrimination
Finally, Vasnaik alleges Providence terminated him because he applied for and received
workers’ compensation for an on-the-job injury. Compl. ¶¶ 85–91. Oregon law makes it an
“unlawful employment practice for an employer to discriminate against a worker . . . because the
worker has applied for benefits or invoked or utilized the procedures” of Oregon’s workers’
compensation system. ORS § 659A.040. To state a prima facie case for workers’ compensation
discrimination, Vasnaik must show that he invoked the workers’ compensation system, and that
Providence discriminated against him in the tenure, terms, or conditions of his employment
because of it. Arnold v. Pfizer, Inc., 970 F. Supp. 2d 1106, 1142 (D. Or. 2013) (citing Stanich v.
Precision Body & Paint, Inc., 151 Or. App. 446, 457, 950 P.2d 328, 335 (1997), abrogated on
other grounds by Barackman v. Anderson, 214 Or. App. 660, 667, 167 P.3d 994, 999 (2007)).
“To show a causal link between plaintiff’s use of workers’ compensation and any adverse
employment action, plaintiff must establish that in the absence of a discriminatory motive, he
would have been treated differently.” Shepard v. City of Portland, 829 F. Supp. 2d 940, 962 (D.
Or. 2011) (citing Holte v. Steiner Corp., Civ. No. 08-1329-AA, 2010 WL 1779965, at *10 (D.
Or. Apr. 27, 2010)). Although the plaintiff’s evidentiary burden to establish the prima facie case
is minimal, Davis v. Tri-Cnty. Metro. Transp. Dist. of Or., No. 3:12-cv-0808-SI, 2014 WL
4425815, at *12 (D. Or. Sept. 8, 2014), mere temporal proximity between the employee utilizing
17 - OPINION & ORDER
the workers’ compensation system and the employer’s action is not, standing alone, sufficient to
satisfy the causation element. Shepard, 829 F. Supp. 2d at 962.
There is no dispute that Vasnaik’s claim satisfies the first two elements because he
invoked the workers’ compensation system and was terminated. Vasnaik argues that
Providence’s discriminatory motive is shown by (1) the close temporal proximity between injury
and termination, (2) the increased scrutiny he faced after his 2010 workers’ compensation claim,
(3) a comment Wilson made about the seven months Vasnaik missed from work because of his
surgery under the “unexcused absences” section of his 2011 annual review, and (4) an expressed
concern from his supervisor about long-term absences. Pl. Resp. at 16–17.
Working backwards, Vasnaik’s vague allegation that Wilson expressed concern over a
potential long-term absence presumably references Wilson’s deposition testimony where he
admits to “tell[ing] Mr. Vasnaik that it would be a drain on the department if he missed work.”
Wilson Depo., ECF No. 28-22, at 16. What Vasnaik does not account for is the rest of Wilson’s
testimony on the issue. Wilson explained it was “a general conversation; anybody who’s missing
work puts a drain on the rest of the staff, trying to find coverage,” and that the conversation came
up “during one of [Vasnaik’s] unexcused absences or tardies, or something,” though he could not
recall the context more precisely. Id. 38:7–13. Even construing that evidence in Vasnaik’s favor,
a general comment about missing work does not show or even suggest that Wilson discriminated
against Vasnaik because he invoked the workers’ compensation system.
The Court finds Vasnaik’s argument about Wilson’s “unexcused absence” comment on
Vasnaik’s 2011 annual review equally unavailing. The entire comment states, “Patrick was out
for almost 7 months due to a work injury. He has had only 1 unexcused absence since his
return.” Doyle Decl. Ex. K, ECF No. 28-11, at 2. First, the section is not titled “unexcused
18 - OPINION & ORDER
absences,” as Vasnaik states. It is the section in which unexcused absences are reported but is
titled “Financially Responsible,” and is the only section where a supervisor could appropriately
comment on employee attendance. See id. at 2. Second, and more importantly, Wilson rated
Vasnaik’s performance in this area as a “4,” which corresponds to “>2 unexcused absences,
tardies, or early/late Provtime punches.” 2 Id. Vasnaik could not have received a “5” rating, the
1F
next-best rating and highest overall, because that is reserved for employees with “No unexcused
absences, tardies, or early/late Provtime punches,” and Vasnaik does not dispute Wilson’s
comment that he had “only 1 unexcused absence since his return.” Id. The “4” grade was the
highest mark Vasnaik received in any category on his 2011 evaluation; it defies logic to suggest
a supervisor would simultaneously give an employee strong marks for attendance while
admonishing him for a seven-month “unexcused” absence. The record simply does not support
the discriminatory inference Vasnaik suggests.
Vasnaik repeats his general allegation that Providence subjected him to “increased
scrutiny following his 2010 workers’ compensation claim.” Pl. Resp. 17. He does not specify
which of Providence’s acts constituted “increased scrutiny,” though elsewhere his briefing
focuses on the criticism of his “pace.” Pl. Resp. at 4. He claims Providence never criticized his
pace before his injury but frequently did so after. Id. But he does not explain, however, how this
scrutiny is related to his utilizing the workers’ compensation system. See Schoen v. Freightliner
LLC, 224 Or. App. 613, 627–28, 199 P.3d 332, 342 (2008) (explaining that the workers’
compensation statutes do not provide a remedy if an employer “inflicts emotional distress on the
worker, not based on the fact that she filed a workers’ compensation claim, but simply because
she is injured”).
2
Presumably, the performance evaluation should read “<2 unexcused absences . . .” as that would more
accurately reflect the stated goal of “minimizing unexcused absences[.]”
19 - OPINION & ORDER
Moreover, the Court finds evidence in the record that Providence was unsatisfied with
Vasnaik’s “pace” before his injury. Vasnaik’s 2010 evaluation was prepared in September of
2010, which was after Vasnaik’s meniscus injury but before he returned to work. In other words,
this evaluation exclusively covers his pre-injury performance. Def. Reply, Ex. 17, ECF No. 32-6;
Vasnaik Depo., ECF No. 19-1, at 91; Doyle Decl. Ex. B, ECF No. 28-2. “Patrick needs to be a
little more focused on the priority calls,” Wilson wrote. “He appears to have one speed in which
he does everything and there are those occasions when we need to be able to shift gears and pick
up the pace. The safety of co-workers may depend on it.” Def. Reply, Ex. 17, ECF No. 32-6, at
4. In another section, Wilson wrote “Patrick needs to improve on independently organizing and
prioritizing calls in the proper order. He needs to speed up his pace on calls requiring a higher
priority level, I.e. (sic) any call for officer assistance, or any emergency call.” Id. at 11. Wilson
offers an illustrative example:
When called by Dispatch on June 6, 2010 for a State 10-38 (officer assistance),
Patrick replied “10-4, umm, 10-34 room number 917; Nine level.” This is an area
check we do for IV therapy when we have the time to do it. It does not take
priority over other calls.
Id. Wilson continued: “Any stat officer assistance call takes priority followed closely by any
emergency code call. The pace needs to be picked up and not casually walked to the call.” Id.
Admittedly, this example incident happened four days after Vasnaik tore his meniscus. See
Doyle Decl., Ex. B, ECF No. 28-2. But it is consistent with Wilson’s criticism of Vasnaik’s work
dating back to July of 2009, when Wilson wrote on his annual review that Vasnaik “could use a
little work in prioritizing calls he responds to . . . .” Doyle Decl. Ex. J, ECF No. 28-10, at 11.
Further evidence that Vasnaik’s problems with “pace” pre-dated his work injury is a
documented meeting between Wilson and Vasnaik on January 18, 2011. Wilson wrote:
20 - OPINION & ORDER
[I] spoke with Patrick about some issues he seemed to have prior to his work
related injury, where he just did not seem to know when to pick up the pace. He
responded to all calls with the same reaction time and interest. I explained to
Patrick that we have emergency calls, urgent calls, and non-urgent calls and he
needs to respond accordingly, picking up the pace for each call higher in urgency.
I gave him some examples of call responses, which were actually pulled from
actual events I witnessed him with (sic) prior to the last time he worked before his
injury. I told him what has happened and what we expect; if any call for service
comes, he needs to respond immediately. He doesn't necessarily need to run to
calls which are not codes, but he does need to start moving in in the direction of
the call.
Examples of the above:
1. When he is speaking to someone in the office about a lost and found item and
an officer is in the ED calling for backup, you need to ask the people in the
office to step out and wait until you return.
2. On his way to MOB to pick up lost and found and a stat call to 5-East comes
through, don’t continue to the MOB to get the lost and found item first, go
ahead and respond to the urgent call.
I told Patrick if ever there are times he is not sure which call to continue on, he
needs to get on the radio and ask either myself or a lead officer which one.
Def. Mot. Ex. 18, ECF No. 19-13 (emphasis added). This exhibit shows Vasnaik’s trouble
prioritizing calls and responding to emergencies with sufficient “pace” pre-dated his 2010 workrelated injury, and Providence’s continued criticism was not motivated by some discriminatory
animus based on his utilizing the workers’ compensation program.
That leaves Vasnaik’s argument that the temporal proximity between his injury on
September 2, 2012 and termination on September 17 could support an inference that he was
terminated because he invoked the workers’ compensation system. Providence’s primary
argument here is that it made the decision to terminate Vasnaik on September 14, 2012, before it
knew of his workers’ compensation claim. Def. Mot. Ex. 44, ECF No. 19-29. at 1–2. Neither
party disputes Vasnaik was injured on September 2, 2012, while attempting to restrain a
21 - OPINION & ORDER
psychiatric patient, or that Providence certainly knew of his workers’ compensation claim by
September 17, 2012. Pl. Resp. Ex. D, ECF No. 28-4; The precise date Providence formally filed
his workers’ compensation claim is unclear, but inapposite: “Invoke, as used in ORS 659A.040,
includes, but is not limited to, a worker’s reporting of an on-the-job injury or a perception by the
employer that the worker has been injured on the job or will report an injury.” Herbert v.
Altimeter, Inc., 230 Or. App. 715, 726, 218 P.3d 542, 548 (2009) (internal quotation marks
omitted) (citing Or. Admin. R. 839-006-0105(7)).
When construed in Vasnaik’s favor, the evidence could suggest to a reasonable juror that
he invoked the workers’ compensation system before Providence decided on September 14,
2012, to terminate him. First, Vasnaik provides as undated work injury report that states he
worked on September 13, 2012, and “[p]lans to be seen at Tanasbourne Occ[upational] Health
Clinic 9/17.” Doyle Decl. Ex. F, ECF No. 28-5 (emphasis added). The relevant inference to
draw, then, is that the document was created sometime between September 13, 2012, and
September 17, 2012. The Providence-generated report also features a check box indicating a
“Yes” under the option for “Notified Supervisor.” Id.
Second, testimony from Vasnaik’s supervisor suggests he may have known of Vasnaik’s
knee injury before the decision to fire him was made. Wilson mentioned a conversation between
him and security department manager Mullen regarding Vasnaik’s conflicting reasons for
parking in the patient-only zone. Originally, Mullen told Wilson, Vasnaik “said that he was
running late and that’s why he parked there; and then later he changed it to be parked there
because his knee was bothering him.” Wilson Depo., ECF No. 28-22, at 8–9. Wilson does not
say when Mullen told him that information or how Mullen knew it, but viewing the evidence in
22 - OPINION & ORDER
the light most favorable to Vasnaik, a reasonable juror could infer that Wilson and Mullen knew
his about his knee injury prior to deciding to terminate him on September 14, 2012.
That knowledge, combined with the close temporal proximity between Vasnaik’s
invoking the workers’ compensation system and termination is sufficient to establish the
causation element of the prima facie case of workers’ compensation retaliation. Dickison v. WalMart Stores, Inc., No. 06-cv-10-AA, 2007 WL 1959287, at *3 (D. Or. July 2, 2007) (quoting
Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)) (“Causation sufficient to establish the
third element of the prima facie case may be inferred from circumstantial evidence, such as the
employer's knowledge that the plaintiff engaged in protected activities and the proximity in time
between the protected action and the allegedly retaliatory employment decision.”).
But that is not the end of the Court’s analysis. Under the McDonnell Douglas framework,
the burden now shifts to Providence to provide a legitimate, nondiscriminatory reason for
terminating Vasnaik. Id. (citing Yartzoff, 809 F.2d at 1376). Providence asserts that the reason it
discharged Vasnaik was his repeated violations of Providence employee policy. Def. Mot. at 25.
Immediately prior to his termination, Vasnaik was on a work plan for improvement after
receiving a written warning for three serious policy violations: failing to maintain attention to a
stand-by patient, walking away from an unsecured patrol car, and a no-call/no-show. Vasnaik
then violated Providence policy by parking in the patients-only lot, which Providence asserts was
the final incident resulting in Vasnaik’s termination. Def. Mot. at 10. Providence has, therefore,
carried its burden to produce evidence of a legitimate, nondiscriminatory reason for discharging
Vasnaik.
The burden now shifts back to Vasnaik to provide evidence that Providence’s reasons for
termination are merely pretext for discrimination. Dickison, 2007 WL 1959287, at *3. A plaintiff
23 - OPINION & ORDER
can establish “pretext” in two separate ways: “(1) indirectly, by showing that the employer’s
proffered explanation is ‘unworthy of credence’ because it is internally inconsistent or otherwise
not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Cornell v. N. Wasco Cnty. Sch. Dist. No. 21, No. 03:10-CV-00964-PK, 2012 WL
4595341, at *3 (D. Or. Oct. 2, 2012) (quoting Chaung v. Univ. Ca. Davis Bd. of Trs., 225 F.3d
1115, 1127 (9th Cir. 2000)). The plaintiff in a discrimination case may “survive summary
judgment without producing any evidence of discrimination beyond that constituting his prima
facie case, if that evidence raises a genuine issue of material fact regarding the truth of the
employer's proffered reason.” Chuang, 225 F.3d at 1127 (9th Cir. 2000). Moreover, the Ninth
Circuit holds that summary judgment is “generally unsuitable in [discrimination] cases in which
the plaintiff has established a prima facie case because of the ‘elusive factual question’ of
intentional discrimination.” Dickison, 2007 WL 1959287 at *3 (quoting Yartzoff, 809 F.2d at
1377.
Vasnaik contends that Providence’s legitimate, non-discriminatory reasons for
terminating him are pretextual because “a careful review of Vasnaik’s performance record shows
that most of those performance problems were imagined or fabricated, or simply did not fit into
any pattern of error.” Pl. Resp. at 14. Additionally, Vasnaik argues that “Providence’s primary
criticism of [him]—that he was too slow—could be found by a reasonable juror to constitute
veiled discrimination.” Id.
Although there is no dispute that Vasnaik had received a written warning, and that he
admits the underlying incidents were true, the Court finds a reasonable juror could interpret the
evidence Vasnaik has produced as indicative of a discriminatory intent. Vasnaik testified that he
felt “singled-out on this particular incident . . . [b]ecause management as well as the manager of
24 - OPINION & ORDER
security and the supervisors are very . . . aware that a lot of people do park there.” Vasnaik
Depo., ECF No. 19-1, at 107. The parking incident in September of 2012 happened more than a
year after Vasnaik received his written warning in May of 2011. And while there is one
documented incident in the interim where Warden discussed proper radio usage with Vasnaik,
the other evidence in the record suggests he was performing satisfactorily. During his 2012
evaluation, which occurred about two months prior to his termination, Mullen’s overall rating of
Vasnaik’s work was “Meeting Expectations.” Def. Mot. Ex. 33, ECF No. 19-23, at 5. Mullen
also wrote to Vasnaik:
[Y]ou bring to our department a reliable, knowledgeable and experienced skill set.
In the assessment of Supervisor Wilson, opportunity exists to fine-tune a couple
of relatively simple attributes to develop an improvement that can enhance your
proficiency and quality. We appreciate your continual contribution and want to
enhance what you already have. Additionally, your demeanor and appearance is
an outstanding professional representation of our department. With your efforts
and the support of Steve, I am certain of your total success.
Id. at 4.
The close temporal proximity between Mullen’s positive review, Vasnaik’s injury, and
his termination could lead a reasonable juror to conclude that Providence’s proffered reason for
terminating him—that he parked in an essentially empty patient parking lot during the Labor Day
weekend—was pretextual. Accordingly, Providence’s motion for summary judgment on
Vasnaik’s ninth claim for relief is denied.
//
//
//
//
//
25 - OPINION & ORDER
CONCLUSION
Based on the foregoing, defendant’s motion for summary judgment [19] is GRANTED in
part and DENIED in part.
IT IS SO ORDERED.
Dated this
____day of ______________, 2015.
MARCO A. HERNÁNDEZ
United States District Judge
26 - OPINION & ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?