Huitt v. Optumhealth

Filing 110

Opinion and Order: The Court GRANTS Defendants Motion 87 for Summary Judgment and DISMISSES this matter with prejudice. Signed on 11/1/2016 by Judge Anna J. Brown. See attached 76 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

SUSAN HUITT,
Plaintiff,
v.
OPTUM HEALTH SERVICES, a
wholly-owned subsidiary of
UNITED HEALTH GROUP, INC.,
Defendant.

SUSAN HUITT
16617 S.E. Naegeli Drive
Portland, OR 97236
[phone]
Plaintiff, Pro Se
SARAH J. RYAN
APRIL L. UPCHURCH FREDRICKSON
Jackson Lewis PC
1001 S.W. Fifth Avenue
Suite 1205
Portland, OR 97204
[phone]
Attorneys for Defendants

1 - OPINION AND ORDER

3:14-CV-01064-BR
OPINION AND ORDER

BROWN, Judge.
This matter comes before the Court on the Motion (#87) for
Summary Judgment of Defendant Optum Health Services.1

For the

reasons that follow, the Court GRANTS Defendant’s Motion.

BACKGROUND
The following facts are taken from the parties’ summaryjudgment materials and are undisputed unless otherwise noted.
Defendant employed Plaintiff Susan Huitt as a WorkLife
Resource & Referral Consultant (RRC) from October 2005 through
April 2014.

RRCs are “responsible for providing [United Health

Group] UHG2 members who call into the Employee Assistance Program
[with] three different referrals for various services in their
local area.”

Decl. of Mary Kauppila at ¶¶ 3-4.

RRCs are

required to “complete a minimum number of searches per week in a
timely manner.”

Id.

At some point Plaintiff “[took] on, in

addition to her regular responsibilities, the task of working on
the ‘Admin’ team.”

Kauppila Decl. at ¶ 5.

In October 2011 Plaintiff began receiving treatment for
various medical conditions.

Plaintiff’s medical benefits were

1

Defendant notes in its Motion that its correct entity name
is Optum Health Services rather than Optumhealth as it appears in
Plaintiff’s Complaint. The Court, therefore, directs the Clerk
of Court to correct the docket accordingly.
2

Defendant is a wholly-owned subsidiary of United
HealthGroup (UHG).
2 - OPINION AND ORDER

provided by UHG.
Plaintiff reported to WorkLife Resource and Referral
Supervisor Erin Cochrun from 2005 through November 2011.

Cochrun

left Optum in November 2011, and Plaintiff then began reporting
to WorkLife Resource and Referral Supervisor Mary Kauppila.
Kauppila testifies in her Declaration that after she had
supervised Plaintiff for several months, she was notified by some
of Plaintiff’s coworkers that Plaintiff completed the number of
searches required by Defendant’s metrics, but “often took more
time than her teammates to complete searches and often worked
late to get searches completed.”

Kauppila Decl. at ¶ 6.

Plaintiff’s coworkers also reported Plaintiff was unable to
complete her work for the Admin team.
In February 2012 Kauppila began discussing her concerns
about Plaintiff’s job performance with Plaintiff in their monthly
one-on-one meetings.
From February 2012 to August 2012 Kauppila received further
reports from Plaintiff’s coworkers who “complain[ed] about being
partnered with [Plaintiff] because they felt they were doing the
majority of the work . . . [and Plaintiff] had difficulty
communicating with team members and with Kauppila and would send
unnecessarily lengthy emails.”

Kauppila Decl. at ¶ 8.

In February 2012 UHG denied Plaintiff’s request for
reimbursement for “certain treatment” that she had been receiving

3 - OPINION AND ORDER

since October 2011.

In March 2012 Plaintiff appealed the denial

of treatment to UHG.

Plaintiff also contacted the United States

Department of Labor (DOL) regarding the denial of treatment.

At

some point Plaintiff, a DOL employee, and a representative from
UHG participated in a conference call regarding the denial of
Plaintiff’s treatment.

Kauppila was not involved in the denial

of Plaintiff’s treatment and was not aware of the conference call
until August 6, 2012.
On July 22, 2012, Plaintiff submitted a second-level appeal
to UHG regarding the denial of benefits.

Kauppila was unaware of

Plaintiff’s second-level appeal until August 6, 2012.
In August 2012 Kauppila and the manager of the Resource &
Referral Team, Sarah Zaniewski, concluded the added responsibilities of the Admin team were too much for Plaintiff in
combination with her job duties.

Accordingly, on August 6, 2012,

Kauppila met with Plaintiff and explained to her that Kauppila
had noticed Plaintiff was unable to keep up with her regular
duties in a regular work day.

Kauppila also told Plaintiff that

she had received complaints from some of Plaintiff’s coworkers,
including A.J., who did not want to be partnered with Plaintiff.
Kauppila then informed Plaintiff that she was being removed from
the Admin team.

Plaintiff did not suffer any decrease in

compensation or benefits as a result of being removed from the
Admin team nor was she given more burdensome work.

4 - OPINION AND ORDER

In fact, her

essential job duties remained the same.
During the August 6, 2012, meeting but after Kauppila
informed Plaintiff that she was being removed from the Admin team
and that A.J. had complained about her, Plaintiff told Kauppila
that A.J. had given her work computer user name and password to a
neighbor and had allowed the neighbor to use her work computer.
Plaintiff believed A.J.’s actions violated the Health Insurance
Portability and Accountability Act (HIPAA).

Plaintiff testified

at deposition that she did not advise Kauppila or other managers
about A.J.’s actions before the August 6, 2012, meeting because
she “didn’t want to see anything happen to [A.J.] in a negative
way.”

Decl. of April Upchurch Fredrickson, Ex. A at 12.

Kauppila advised Zaniewski about Plaintiff’s allegation against
A.J.
Zaniewski consulted with Defendant’s Human Resources
Department (HRDirect), which advised her to speak with A.J.
directly about Plaintiff’s allegation.

When Zaniewski spoke with

A.J., A.J. denied Plaintiff’s allegation and clarified she had
permitted her neighbor to use her home computer rather than her
work computer.

Zaniewski and HRDirect ultimately concluded

Plaintiff’s allegation could not be substantiated and that
further steps to address the issue were not required.
On August 22, 2012, Plaintiff asked Kauppila for a written
explanation for her removal from the Admin team.

5 - OPINION AND ORDER

Kauppila

responded with a memorandum in which she noted:
Several people on the Admin team have direct
feedback to me about [Plaintiff’s] performance
when they were partnered with her on Admin. They
felt that when they were partnered with
[Plaintiff] that the burden for the Admin work was
not shared. They did not experience the same
partnership and delegating of responsibilities
that they did with other Admin team members and
they "dreaded" being partnered with her. They
stated that they would ask [Plaintiff] if she
could assist with some part of the Admin
responsibilities and she provided a "reason" or an
"excuse" for why she was unable to help. Several
said they simply stopped asking or providing
feedback because they got tired of always hearing
a reason for why she was not available to help.
The other late Admin team members also stated that
when [Plaintiff] was on Admin they would often
have to stay late to make sure all of their
responsibilities were completed and that did not
happen when they were partnered with other people.
[Plaintiff] became overwhelmed at times with
managing the demands of Admin in addition to her
other daily responsibilities as an RRC including
not responding in a timely manner to emails or not
responding at all and not completing her self
assignment in a timely manner.
There was also a concern with [Plaintiff’s] email
communications related to Admin. [Plaintiff] was
taking too much time out of her day creating her
communications and her team mates and management
were taking too much time deciphering
[Plaintiff’s] communications because they were
lengthy and confusing. I also experienced having
to re-hash the same issue with [Plaintiff] and had
to ask her to be willing to put things behind her
once they have been discussed because an
inordinate amount of time was spent discussing the
same issue which was causing frustration and
again, taking too much time out of our day.
Kauppila Decl., Ex. G.

6 - OPINION AND ORDER

Defendant alleges Plaintiff’s performance failed to improve.
On August 26, 2012, Kauppila and Zaniewski drafted an interim
review for Plaintiff that included a rating of “needs
improvement.”

Kauppila and Zaniewski asked Plaintiff to complete

a self-evaluation in order to assess and to discuss Plaintiff’s
interim review.

Plaintiff, however, never completed her self-

evaluation.
On August 29, 2012, Plaintiff was off from work sick.
On August 30, 2012, Kauppila and Zaniewski drafted a
Corrective Action Plan (CAP) that provided Plaintiff with 90 days
to improve her performance.
On August 30, 2012, before Kauppila and Zaniewski were able
to meet with Plaintiff or to present her with her interim review
of CAP, Plaintiff emailed Kauppila and Zaniewski and advised them
that her doctor had placed her on short-term disability leave due
to her “serious medical condition,” that she would be on leave
longer than five days, and that she would be filing a claim for
short-term disability benefits through Sedgwick (UHG’s thirdparty administrator of short-term disability).

Plaintiff then

began a leave of absence under the Family Medical Leave Act
(FMLA).
Plaintiff did not return to work after August 29, 2012, and
exhausted her FMLA leave by October 31, 2012.

After October 31,

2012, Plaintiff was on a leave of absence without pay until

7 - OPINION AND ORDER

April 2, 2014, at which point Defendant terminated Plaintiff’s
employment because she could not return to work.
In March 2013 while Plaintiff was on her leave of absence,
she registered a complaint with HRDirect alleging Sedgwick
violated HIPAA when it left a copy of Plaintiff’s medical records
unattended on her front doorstep.

HRDirect investigated and in

October 2013 determined Plaintiff’s complaint was “without
merit.”

Fredrickson Decl., Ex. H at 2.

On July 29, 2013, Plaintiff filed a complaint with the
Oregon Bureau of Labor and Industries (BOLI) in which she alleged
Defendant:

(1) violated Oregon Revised Statute § 659A.199 when

it subjected her to “a hostile working environment and
discriminatory treatment” after she reported to Defendant what
Plaintiff “believed were possible violations of HIPPA [sic] and
other privacy laws by certain other employees” and (2) violated
Oregon Revised Statute § 659A.112 when it subjected her to “a
hostile working environment due in substantial part because [she]
has a disability and require[s] reasonable accommodation to [her]
disability.”

Fredrickson Decl., Ex J at 2.

On March 13, 2014, Defendant sent Plaintiff a letter in
which it advised:
On August 29, 2012 you began a leave of absence.
Your leave under the Family and Medical Leave Act
(FMLA) was exhausted on October 31, 2012.
You have now been on leave for over 18 months, and
as of the date of this letter, you have not been
8 - OPINION AND ORDER

released to return to work (with or without
accommodations). Further, the medical
documentation submitted by your health care
provider does not list any anticipated date on
which you will be able to return to work with or
without accommodation(s). Therefore, UHG has
determined that your employment will be
administratively terminated effective April 2,
2014.
Fredrickson Decl., Ex. G at 1.
On June 2, 2014, Plaintiff filed a pro se complaint in
Multnomah County Circuit Court against Defendant and asserted
claims for disability discrimination in violation of Oregon
Revised Statute § 659A.112, whistleblower retaliation in
violation of Oregon Revised Statutes §§ 659A.199 and 659A.230,
and wrongful termination.
On July 2, 2014, Defendant removed the matter to this Court
on the basis of diversity and federal-question jurisdiction.
On August 8, 2016, Defendant filed a Motion for Summary
Judgment.
On August 10, 2016, the Court issued a Summary Judgment
Advice Notice to Plaintiff advising her that if she did not
submit evidence in opposition to Defendant’s Motion, summary
judgment could be entered against her.
The Court took Defendant’s Motion under advisement on
October 6, 2016.
STANDARDS
Summary judgment is appropriate when “there is no genuine

9 - OPINION AND ORDER

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).

See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005).

In response to a properly

supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
. . . .

Id.

"This burden is not a light one

The non-moving party must do more than show there is

some 'metaphysical doubt' as to the material facts at issue."

In

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."

Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).

A “mere

disagreement or bald assertion” that a genuine dispute as to a
10 - OPINION AND ORDER

material fact exists “will not preclude the grant of summary
judgment.”

Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-

1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).

When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.

Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.

Id.

DISCUSSION
Defendant moves for summary judgment on all of Plaintiff’s
claims.
I.

Plaintiff’s First Claim against Defendant for disability
discrimination in violation of Oregon Revised Statute
§ 659A.112.
Plaintiff alleges in her First Claim that she has a

disability as defined by Oregon Revised Statute § 659A.104(1)(a)
that substantially limits her ability to perform major life
activities, that she was a qualified individual with a
disability, that she was able to perform the essential functions
11 - OPINION AND ORDER

of her job with or without reasonable accommodation, and that
Defendant discriminated against her by “creating a hostile work
environment because of [her] disability.”

Compl. at ¶ 23.

Plaintiff also alleges she was subject to adverse employment
actions when Defendant removed her from the Admin team and when
it terminated her employment.
Defendant moves for summary judgment on the grounds that
Plaintiff did not suffer an adverse employment action when
Defendant removed her from the Admin team, that Plaintiff has not
established she was removed from the Admin team because of her
disability, that Plaintiff was not a qualified individual with a
disability at the time of her termination, and that Plaintiff’s
termination was not an adverse employment action.
A.

Oregon disability discrimination standards.
Oregon Revised Statute § 659A.112(1) provides:

“It is

an unlawful employment practice for any employer to . . .
discharge from employment or to discriminate in compensation or
in terms, conditions or privileges of employment on the basis of
disability.”
To establish a prima facie case of discrimination under
§ 659A.112 the plaintiff must show:

(1) she is a qualified

individual with a disability, (2) she suffered an adverse
employment action, and (3) there was a causal connection between
the adverse employment action and her disability.

12 - OPINION AND ORDER

Rogers v.

Oregon Trail Elec. Consumers Co-op., Inc., No. 3:10–CV–1337–AC,
2012 WL 1635127, at *22 (D. Or. May 8, 2012)(citing Hutton v. Elf
Atochem N. Am. Inc., 273 F.3d 884, 891 (9th Cir. 2001)).

See

also Wessels v. Moore Excavation, Inc., No. 3:14-cv-01329-HZ,
2016 WL 1589894, at *3 (D. Or. Apr. 18, 2016)(same).

The proof

required at the prima facie stage “‘is minimal and does not even
need to rise to the level of a preponderance of evidence.’”
Rogers, 2012 WL 1635127, at *22 (quoting Wallis v. J.R. Simplot
Co., 26 F.3d 885, 889 (9th Cir. 1994)).
If the plaintiff establishes a prima facie case, the
burden shifts to the defendant to provide a legitimate,
nondiscriminatory reason for the adverse employment action.
Wessels, 2016 WL 1589894, at *3 (citing Curley v. City of N. Las
Vegas, 772 F.3d 629, 632 (9th Cir. 2014)).
If the defendant provides a legitimate, nondiscriminatory
reason for the adverse employment action, the burden shifts back
to the plaintiff to prove the reason given by the defendant was
pretextual.

To establish pretext the plaintiff must either raise

an issue of fact as to whether the defendant’s legitimate,
nondiscriminatory reason is genuine or introduce direct evidence
of a discriminatory motive.

Villiarimo v. Aloha Island Air,

Inc., 281 F.3d 1054, 1063 (9th Cir. 2002).

See also Tyson v. Or.

Anesthesiology Group, P.C., No. 03-CV-1192-HA, 2008 WL 2371420,
at *5 (D. Or. June 6, 2008).
13 - OPINION AND ORDER

Temporal proximity alone is

insufficient to create evidence of pretext.

Ventura v. Johnson

Controls, Inc., Nos. 08–CV-1318–PK, 09–CV-190–PK, 2010 WL
3767882, at *10 (D. Or. Sept. 16, 2010)(quoting Hashimoto v.
Dalton, 118 F.3d 671, 680 (9th Cir. 1997)(although the temporal
proximity of an adverse employment action to an employee's
protected behavior may suffice to support a “minimal prima facie
case of retaliation,” it is insufficient to carry the plaintiff’s
burden “of establishing a triable issue of fact on the ultimate
question” of retaliation).
B.

Plaintiff did not suffer an adverse employment action
when Defendant removed her from the Admin team.
As noted, Plaintiff alleges Defendant discriminated

against her because of her disability when it removed her from
the Admin team.

Defendant, however, contends Plaintiff’s removal

from the Admin team does not constitute an adverse employment
action because her removal did not result in any reduction in
compensation or any negative effects in her terms of employment
or employment conditions.
“ ‘An adverse employment action is one that materially
affects the terms, conditions, or privileges of the plaintiff's
employment.’”

Redwind v. Western Union, LLC, No. 3:14-cv-

01699-AC, 2016 WL 3606595, at *12 (D. Or. May 2, 2016)(quoting
Ray v. Henderson, 217 F.3d 1234, 1242 (9th Cir. 2000)).
those employment actions that may qualify as adverse are
termination, demotion, suspension, removal of job
14 - OPINION AND ORDER

“Among

responsibilities, imposition of more burdensome work activities,
overtime, reduction in salary or benefits, and substantial
interference with work facilities that are key to job
performance.”

Leighton v. Three Rivers School Dist.,

No. 1;12–cv–1275–CL, 2015 WL 272894, at *7 (D. Or. Jan. 20,
2105)(citing Kang v. U. Lim Am., Inc., 296 F.3d 810, 818–19 (9th
Cir. 2002)(the plaintiff established a prima facie case of
disparate treatment when the defendant subjected the plaintiff to
overtime and termination “that constituted a material change in
the terms and conditions of [the plaintiffs] employment.”).

See

also Chuang v. Univ. of Cal. Davis, Bel. of Trs., 225 F.3d 1115,
1126 (9th Cir. 2000)(“[T]he removal of or substantial
interference with work facilities important to the performance of
the job constitutes a material change in the terms and conditions
of a person's employment,” and, therefore, qualifies as an
adverse employment action); Kortan v. Ca. Youth Auth., 217 F.3d
1104, 1113 (9th Cir. 2000)(no adverse employment action when the
plaintiff was not demoted, given different or more burdensome
work, fired or suspended, denied any raises, or suffered a
reduction in salary or any other benefit).
The record reflects Plaintiff did not suffer any
decrease in compensation or benefits nor was she given more
burdensome work responsibilities as a result of being removed
from the Admin team.

In fact, the record does not reflect

15 - OPINION AND ORDER

Plaintiff suffered any negative effects in her RRC job as a
result of her removal from the Admin team.
On this record the Court concludes Plaintiff has not
established a genuine dispute of material fact exists as to
whether removal from the Admin team constituted an adverse
employment action.

Because Plaintiff cannot establish all the

elements of her First Claim for disability discrimination, the
Court grants Defendant summary judgment on Plaintiff’s First
Claim for disability discrimination based on her removal from the
Admin team.
C.

Plaintiff was not a qualified individual with a
disability at the time of her termination.
Plaintiff alleges Defendant violated Oregon Revised

Statute § 659A.112(1) when it terminated her because of her
disability.

Defendant, however, asserts Plaintiff was not a

qualified individual with a disability from September 2012 to the
time of her termination effective April 2, 2014.

Plaintiff,

therefore, cannot establish all the elements of a claim for
disability discrimination related to her termination.
As noted, in order to establish a prima facie case of
discrimination under § 659A.112 Plaintiff must show, among other
things, that she was a qualified individual with a disability at
the time of termination.

Under § 659A.112 a qualified individual

with a disability is one who can perform the essential functions
of the job with or without reasonable accommodation.
16 - OPINION AND ORDER

“Determining whether Plaintiff is a ‘qualified individual’
requires the Court to consider whether Plaintiff was able to
perform the essential functions of the . . . position at the time
of [her] termination without accommodation, and then, if [she]
cannot, whether [s]he was able to do so with reasonable
accommodation.”

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

No. 3:12–cv–01740–HU, 2014 WL 585376, at *14 (D. Or. Feb. 13.
2014)(emphasis in original)(citing Dark v. Curry County, 451 F.3d
1078, 1086 (9th Cir. 2006)).

If Plaintiff could not perform the

essential functions of the position with a reasonable
accommodation, § 659A.112 does not apply.

See Cripe v. City of

San Jose, 261 F.3d 877, 884–85 (9th Cir. 2001).
The record reflects Plaintiff was unable to perform the
essential functions of her RRC job with or without reasonable
accommodation after she went on medical leave on August 30, 2012,
through her termination in April 2014.

Moreover, Plaintiff

testified at deposition that “starting in September of 2012 [she
could not] have performed the central functions of [her] job with
or without accommodation,” and she remained unable to do so up to
and after the date of her termination letter on March 13, 2014.
Fredrickson Decl., Ex. A at 29, 37.

In fact, Plaintiff took

medical leave on August 30, 2012, and never returned to her job
with Defendant or took any other job.
The Court concludes in the face of Defendant’s Motion

17 - OPINION AND ORDER

Plaintiff has not established a genuine dispute of material fact
exists as to whether she was a qualified individual with a
disability at the time of her termination.

Accordingly, with a

failure of proof as to that material element, Plaintiff’s First
Claim for disability discrimination in violation of § 659A.112
fails, and, therefore, the Court grants Defendant’s Motion for
Summary Judgment as to that claim.
II.

Plaintiff’s Second and Third Claims for whistleblower
retaliation.
Plaintiff alleges in her Second Claim that her “multiple

acts of reporting ERISA and HIPPA [sic] violations to defendant
and to the Department of Labor, Employee Benefits Security
Administration constituted a report of information plaintiff
reasonably believed was evidence of a violation of federal law,
rule, or regulation.”

Compl. at ¶ 32.

Plaintiff alleges

Defendant terminated her “in substantial part due to [her] report
of a violation of law, rule, or regulation” and retaliated
against her in violation of Oregon Revised Statute § 659A.199 “by
creating a hostile work environment because of her reports of
federal law violations.”

Compl. at ¶¶ 33-34.

In her Third Claim Plaintiff alleges “Defendants engaged in
the acts alleged [in her Complaint] for the reason that plaintiff
commenced a complaint against defendant with BOLI” and
“Defendants terminated plaintiff’s employment in substantial part
due to plaintiff’s report of a violation of law, rule, or
18 - OPINION AND ORDER

regulation in violation of ORS 659A.230.”

Compl. ¶¶ 38-39.

Defendant moves for summary judgment on Plaintiff’s Second
and Third Claims on the grounds that (1) to the extent Plaintiff
alleges she was terminated or otherwise retaliated against for
reporting an ERISA violation, her claims are preempted by ERISA;
(2) Plaintiff cannot establish she engaged in a protected
activity for purposes of her Third Claim; (3) Plaintiff cannot
establish a causal link between her alleged protected activity
and a cognizable employment action; and (4) Plaintiff did not
suffer adverse employment actions when Defendant removed her from
the Admin team and terminated her employment.
A.

Whistleblower standards.
Oregon Revised Statute § 659A.199(a) provides:
It is an unlawful employment practice for an
employer to discharge, demote, suspend or in any
manner discriminate or retaliate against an
employee . . . for the reason that the employee
has in good faith reported information that the
employee believes is evidence of a violation of a
state or federal law, rule or regulation.
Oregon Revised Statute § 659A.230 provides:
It is an unlawful employment practice for an
employer to discharge, demote, suspend or in any
manner discriminate or retaliate against an
employee . . . for the reason that the employee
has in good faith reported criminal activity by
any person, has in good faith caused a . . .
complaint to be filed against any person, . . .
has in good faith brought a civil proceeding
against an employer or has testified in good faith
at a civil proceeding or criminal trial.
To survive summary judgment on a whistleblower claim

19 - OPINION AND ORDER

under §§ 659A.199 or 659A.230 a plaintiff must identify
the existence of facts from which a reasonable
fact finder could conclude . . . she engaged in
protected activity . . . [and] defendant[]
retaliated against her in response to that
activity. . . . [I]f the employer asserts a
non-discriminatory reason for the employee's
termination, the plaintiff must show that the
employer would not have made the same decision
absent a discriminatory motive.
Merrill v. M.I.T.C.H. Charter Sch. Tigard, No. 10-CV-219-HA, 2011
WL 1457461, at *7 (D. Or. Apr. 4, 2011)(citations omitted).

See

also Dawson v. Entek Int'l, 630 F.3d 928, 936 (9th Cir. 2011)
(applies burden-shifting framework to state and federal claims).
To establish a prima facie case of retaliation under
Oregon Revised Statutes §§ 659A.199 and 659A.230 the "[p]laintiff
'must show (1) she was engaging in a protected activity, (2) she
suffered an adverse employment decision, and (3) there was a
causal link between the protected activity and the adverse
employment decision.'"

Sandberg v. City of N. Plains, No.

10–CV–1273–HZ, 2012 WL 602434, at *7 (D. Or. Feb. 22, 2012)
(quoting Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782,
785 (9th Cir. 1986)).3

See also Shultz v. Multnomah Cty.,

No. 08–CV–886–BR, 2009 WL 1476689, at *13 (D. Or. May 27, 2009)
(same).
3

Courts have held “Title VII of the Civil Rights Act
generally provides guidance in interpreting the employment
discrimination provisions of O.R.S. 659A.” James v. Or.
Sandblasting & Coating, Inc., 2016 WL 5402218, at *2 n.1 (D. Or.
Sept. 25, 2016).
20 - OPINION AND ORDER

To establish causation the plaintiff must show her
protected activity was a "'substantial factor in the motivation
to discharge the employee.'”

Sandberg, 2012 WL 602434, at *7

(quoting Estes v. Lewis and Clark College, 152 Or. App. 372, 381
(1998)).

See also Huff v. City of Portland, Civ. No. 05–1831–AA,

2008 WL 1902760, at *6 (D. Or. Apr. 28, 2008)(“Plaintiff bears
the burden of establishing that her alleged disclosures
constituted 'a substantial factor' in the discontinuation of her
employment.”).
If the plaintiff establishes a prima facie case, the
burden shifts to the defendant to rebut the inference of
retaliation by offering a legitimate, nondiscriminatory reason
for the employee's termination.

If the defendant successfully

rebuts the inference of retaliation, the burden shifts back to
the plaintiff to show that the defendant's explanation is
pretextual.

Neighorn v. Quest Health Care, No. 1:10-CV-03105-CL,

2012 WL 1566176, at *28 (D. Or. May 2, 2012).
B.

To the extent that Plaintiff alleges she was terminated
or otherwise retaliated against for reporting ERISA
violations, her claims are preempted by ERISA.
As noted, Plaintiff alleges Defendant terminated her in

substantial part because she reported ERISA violations to
Defendant, to the Department of Labor, and/or to the Employee
Benefits Security Administration.

Specifically, Plaintiff

alleges in her Complaint that she “reported what she believed to
21 - OPINION AND ORDER

be violations of ERISA by filing an internal appeal with
defendant challenging its refusal to approve payment for
plaintiff’s pain management therapy.”
1.

Compl. at ¶ 9.

ERISA preemption standards.
In Aetna Healthcare v. Davila the Supreme Court

explained ERISA preemption as follows:
Congress enacted ERISA to "protect . . . the
interests of participants in employee benefit
plans and their beneficiaries" by setting out
substantive regulatory requirements for employee
benefit plans and to "provid[e] for appropriate
remedies, sanctions, and ready access to the
Federal courts." 29 U.S.C. § 1001(b). The
purpose of ERISA is to provide a uniform
regulatory regime over employee benefit plans.
To this end, ERISA includes expansive pre-emption
provisions, see ERISA § 514, 29 U.S.C. § 1144,
which are intended to ensure that employee benefit
plan regulation would be "exclusively a federal
concern." Alessi v. Raybestos-Manhattan, Inc.,
451 U.S. 504, 523 (1981).
ERISA's "comprehensive legislative scheme"
includes "an integrated system of procedures for
enforcement." Russell, 473 U.S., at 147 (internal
quotation marks omitted). This integrated
enforcement mechanism, ERISA § 502(a), 29 U.S.C.
§ 1132(a), is a distinctive feature of ERISA.
* * *
Therefore, any state-law cause of action that
duplicates, supplements, or supplants the ERISA
civil enforcement remedy conflicts with the clear
congressional intent to make the ERISA remedy
exclusive and is therefore pre-empted. See 481
U.S. at 54-56; see also Ingersoll-Rand Co. v.
McClendon, 498 U.S. 133, 143-145 (1990).
542 U.S. 200, 208 (2004).
ERISA's preemption provision provides ERISA shall
22 - OPINION AND ORDER

generally "supersede any and all State laws insofar as they may
now or hereafter relate to any employee benefit plan described in
section 1003(a) of this title and not exempt under section
1003(b) of this title."

29 U.S.C. § 1144(a).

ERISA bars employers from retaliating “against any
person because [s]he has given information . . . in any inquiry
or proceeding relating to” ERISA.

29 U.S.C. § 1140.

The Supreme

Court has held ERISA preemption applies when a plaintiff’s statelaw claim falls within the purview of § 1144.

Metro. Life Ins.

Co. v. Taylor, 481 U.S. 58, 63-64 (1987).
2.

Analysis.
The Ninth Circuit has held claims alleging

retaliation or discrimination because of a plaintiff’s report of
“concerns about ‘potential and/or actual violations . . . of
ERISA’” are preempted by ERISA.

See, e.g., Hashimoto v. Bank of

Haw., 999 F.2d 408, 411 (9th Cir. 1993)(“[W]e hold the Hawaii
Whistle Blower's Act, to the extent an ERISA violation is
involved, [is] preempted by the specific provision of ERISA
protecting whistle blowers such as [the plaintiff].”).

District

courts in the Ninth Circuit have also found state whistleblower
claims are preempted by ERISA.

See, e.g., Perez v. Brain, 2015

WL 3505249, at *11 (C.D. Cal. Jan. 30, 2015)(“When read together
with the other allegations in the [second amended complaint],
. . . [the plaintiff] sufficiently pleads . . . a ‘discharge’ in
23 - OPINION AND ORDER

violation of” ERISA, and, therefore, the plaintiff’s state-law
claim is preempted by ERISA).

Compare Yoshimura v. Haw.

Carpenters Union Local 745, 2015 WL 6126805, at *4 (D. Haw.
Oct. 15, 2015)(the plaintiff’s state whistleblower claim was not
preempted by ERISA because the plaintiff did not allege he made
any reports of ERISA violations).
On this record the Court concludes to the extent
that Plaintiff alleges she was terminated or otherwise retaliated
against for reporting violations of ERISA, her claims are
preempted by ERISA pursuant to Hashimoto.

The Court, therefore,

grants Defendant’s Motion for Summary Judgment as to Plaintiff’s
Second and Third Claims to the extent that they are based on
Plaintiff’s alleged termination for reporting violations of
ERISA.
C.

Plaintiff has not established she engaged in a
protected activity for purposes of § 659A.230.
Plaintiff alleges in her Third Claim that Defendant

terminated her in retaliation for commencing a complaint with
BOLI against Defendant.

Defendant, however, points out that

Oregon courts have held § 659A.230 does not apply to protect
individuals who have filed complaints with administrative
agencies.

See, e.g., Huber v. Or. Dep’t of Ed., 235 Or. App.

230, 238 (2010)(“The critical flaw in plaintiff's position is
that his complaint to the DHHS and threat to complain to the OSBN
were administrative matters . . . and were therefore not
24 - OPINION AND ORDER

protected by ORS 659A.230.”); Mantia v. Hanson, 190 Or. App. 36,
41 n.3 (2003) (the plaintiff's complaint about “allegedly unsafe
work conditions and threat . . . to complain to Oregon
occupational safety authorities about those conditions” was not
protected by

§ 659.5504).

The Court, therefore, concludes on this record that
Plaintiff has not established she engaged in activity protected
by § 659A.230.
D.

Plaintiff has not established a causal connection
between the alleged adverse employment actions and her
allegedly protected activity.
Even if Plaintiff established she engaged in protected

activity when she reported alleged violations of HIPAA,5
Defendant asserts Plaintiff cannot establish a causal connection
between her complaints and her removal from the Admin team, the
drafting of the CAP, or her termination.
A plaintiff can establish a causal connection between
her protected activity and the adverse employment action
“(1) indirectly, by showing that the protected activity was
followed closely by discriminatory treatment or through other

4

This statute was renumbered to § 659A.230 in 2001.

5

As noted, to the extent that Plaintiff’s whistleblower
claims are based on Plaintiff’s March 2012 appeal to UHG of the
denial of her benefits, her contact with the DOL regarding the
denial of her benefits, and her July 2012 second-level appeal to
UHG of the denial of her benefits, those portions of her claims
are preempted by ERISA.
25 - OPINION AND ORDER

evidence such as disparate treatment of fellow employees who
engaged in similar conduct, or (2) directly, through evidence of
retaliatory animus directed against a plaintiff by the
defendant.”

Boynton-Burns v. Univ. of Or., 197 Or. App. 373,

380-81 (2005)(emphasis in original, quotation omitted).
Plaintiff alleges Defendant removed her from the Admin
team, Defendant terminated her, and Kauppila and Zaniewski
drafted the CAP in retaliation for (1) Plaintiff’s report on
August 6, 2012, that A.J. had given her work computer user name
and password to a neighbor and had allowed the neighbor to use
her work computer; (2) Plaintiff’s report that on March 27, 2013,
Sedgwick left her medical records on her doorstep; and
(3) Plaintiff’s filing of a BOLI complaint on July 29, 2013, in
which she alleged UHG retaliated against her for reporting HIPAA
violations.

Plaintiff relies on the temporal proximity between

her alleged protected activities and the adverse employment
actions to establish a causal connection.
1.

Plaintiff’s removal from the Admin team.
It is undisputed that during the August 6, 2012,

meeting with Kauppila, Plaintiff told Kauppila that A.J. had
given her work computer user name and password to a neighbor and
had allowed the neighbor to use her work computer.

Plaintiff

believed A.J.’s conduct was a violation of HIPAA.

The record,

however, reflects Plaintiff reported the alleged violation for

26 - OPINION AND ORDER

the first time after Kauppila decided to remove Plaintiff from
the Admin team.

Specifically, Plaintiff testified at deposition

that she did not advise management about A.J.’s actions before
the August 6, 2012, meeting because she “didn’t want to see
anything happen to [A.J.] in a negative way.”

Fredrickson Decl.,

Ex. A at 12.
Because the record reflects Kauppila made the
decision to remove Plaintiff from the Admin team before Plaintiff
made any report of A.J.’s alleged HIPAA violation, the Court
concludes Plaintiff has not established a causal connection
between her removal from the Admin team and her report of A.J.’s
alleged HIPAA violation.
2.

Plaintiff’s termination.
Plaintiff relies on the temporal proximity of her

April 2014 termination and the August 2012 draft CAP, her March
2013 complaint that Sedgwick violated HIPAA, and her July 2013
report to the DOL to establish a causal connection between her
termination and her reports of the alleged HIPAA violations.
Courts have made clear that when a plaintiff
“attempts to establish the causal connection indirectly, relying
on mere temporal proximity between the events, the events must be
‘very close’ in time.”

Boynton-Burns, 197 Or. App. at 381

(citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001)).

For example, in Miller v. Clark County School District

27 - OPINION AND ORDER

the Ninth Circuit held the plaintiff failed to establish that a
genuine dispute of material fact existed as to whether his
protected conduct was a motivating factor in his termination
based on the temporal proximity of his engagement in the
allegedly protected activity and his termination for
insubordination “more than a month” later.
(9th Cir. 2010).

378 F. App’x 623, 626

Similarly, in Swan v. Bank of America the Ninth

Circuit concluded the plaintiff could not establish her
termination was “causally related” to her medical leave because
the defendant terminated her “four months after her return from
leave, which is too remote in time to support a finding of
causation premised solely on temporal proximity.”

360 F. App’x

903, 906 (9th Cir. 2009)(citing Breeden, 532 U.S. at 273).

In

several cases district courts in the Ninth Circuit have concluded
that seven to nine months between the protected activity and the
adverse action does not constitute sufficient temporal proximity
to establish a causal connection.

See, e.g., Anderson v. City

and County of San Francisco, 169 F. Supp. 2d 995, 1028 (N.D. Cal.
Mar. 14, 2106) (seven months is insufficient); Santa Ana Police
Officers Ass’n v. City of Santa Ana, No: SA CV 15-1280-DOC(DFMx),
2016 WL 827750, at *12 (C.D. Cal. Mar. 2, 2016)(eight months is
insufficient).
The time between Plaintiff’s April 2014
termination and her August 2012 complaint that A.J. violated

28 - OPINION AND ORDER

HIPAA was more than 19 months, the time between Plaintiff’s April
2014 termination and her March 2013 complaint that Sedgwick
violated HIPAA is 13 months, and the time between Plaintiff’s
termination and her July 2013 DOL complaint is eight months.
Plaintiff’s termination, therefore, did not occur “very close” in
time to Plaintiff’s allegedly protected activities.
On this record the Court concludes Plaintiff has
failed to establish a causal connection between her termination
and any of her allegedly protected activities.
3.

Drafting of the CAP.
As noted, on August 30, 2012, Kauppila and

Zaniewski drafted a CAP that provided Plaintiff with 90 days to
improve her performance.

It is undisputed that Kauppila and

Zaniewski never delivered or presented the CAP to Plaintiff.
Plaintiff alleges Kauppila and Zaniewski drafted
the CAP in retaliation for Plaintiff’s August 6, 2012, report
that A.J. violated HIPAA.

Plaintiff relies on the temporal

proximity of the drafting of the CAP to her August 6, 2012, HIPAA
violation report to establish a causal connection.

The record

reflects Kauppila and Zaniewski drafted the CAP on August 30,
2012, which was approximately three weeks after Plaintiff
reported A.J.’s alleged HIPAA violation.

The Court finds three

weeks is sufficiently close in time to support a prima facie
finding of causality.

29 - OPINION AND ORDER

Defendant asserts the draft CAP is not an adverse
employment action, and, therefore, Plaintiff has not established
a prima facie case of retaliation.

Defendant also asserts even

if Plaintiff established a prima facie case of retaliation,
Defendant has a legitimate, nondiscriminatory reason for drafting
the CAP.
As noted, Kauppila and Zaniewski never provided or
presented the CAP to Plaintiff.

In addition, the record does not

reflect there were any tangible employment effects on Plaintiff
as a result of the draft CAP.

In fact, Plaintiff testified at

deposition that “there was no corrective action plan” before she
left on medical leave on August 29, 2012.
Ex. A at 9.

Fredrickson Decl.,

Thus, there is not any indication that the CAP draft

of which Plaintiff was unaware and which did not result in any
tangible employment harm “might well have dissuaded a reasonable
[person] from making . . . a charge” of HIPAA violation.

Ollier

v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 868 (9th Cir.
2014).
On this record the Court, therefore, concludes the
drafting of the CAP was not an adverse employment action.

See,

e.g., Pasco v. Mentor Graphics Corp, 199 F. Supp. 2d 1034, 1054
(D. Or. 2001)(“A negative performance evaluation . . . that does
not remain in the employee's file or result in some other
tangible employment harm is not an adverse employment action.”)

30 - OPINION AND ORDER

(citing Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1112–13 (9th
Cir. 2000)).

Plaintiff, therefore, has not established a prima

facie case of retaliation based on the CAP.
Even if Plaintiff had established a prima facie
case of retaliation based on the draft CAP, Defendant, as noted,
asserts it had a legitimate, nondiscriminatory reason for
drafting the CAP.

Specifically, Defendant asserts Kauppila and

Zaniewski drafted the CAP after Kauppila observed Plaintiff
struggled to complete her daily work and heard reports from
Plaintiff’s coworkers that they were frustrated with Plaintiff’s
unnecessarily long emails, that Plaintiff was difficult to work
with, and that they did not want to be partnered with Plaintiff
because they felt they were doing the majority of the work.
On this record the Court concludes Defendant has
provided a legitimate, nondiscriminatory reason for drafting the
CAP.

The burden, therefore, shifts back to Plaintiff to prove

the reason given by Defendant for drafting the CAP was
pretextual.
To establish pretext Plaintiff must either raise
an issue of fact as to whether Defendant’s legitimate,
nondiscriminatory reason is genuine or introduce direct evidence
of a discriminatory motive.

See Villiarimo, 281 F.3d at 1063.

As noted, temporal proximity alone is insufficient to establish
evidence of pretext.

31 - OPINION AND ORDER

Ventura, 2010 WL 3767882, at *10.

See also

Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997)(although
the temporal proximity of an adverse employment action to an
employee's protected behavior may suffice to support a “minimal
prima facie case of retaliation,” it is insufficient to carry the
plaintiff’s burden “of establishing a triable issue of fact on
the ultimate question” of retaliation).

Plaintiff does not

identify any nonspeculative evidence to establish that
Defendant’s stated legitimate, nondiscriminatory reason for
drafting the CAP is pretextual.

The record contains emails from

Plaintiff’s coworkers in which they complained about Plaintiff’s
performance and communications.

The record also includes

memoranda and emails from Plaintiff’s managers in which they
express concerns about Plaintiff’s performance and complaints
from Plaintiff’s coworkers.

Plaintiff testified in her

deposition that several of her coworkers criticized her
performance.

Fredrickson Decl., Ex. A at 15-17.

Viewing the

evidence in the light most favorable to Plaintiff, the Court
concludes Plaintiff has not established Defendant’s stated
legitimate, nondiscriminatory reason for drafting the CAP was
pretextual.
On this record the Court concludes Plaintiff
has not established a genuine dispute of material fact exists
as to Plaintiff’s Second and Third Claims for retaliation.
Accordingly, the Court grants Defendant’s Motion for Summary

32 - OPINION AND ORDER

Judgment as to those claims.
IV.

Plaintiff’s Fourth Claim for Wrongful Termination
In her Fourth Claim Plaintiff alleges Defendant terminated

her in substantial part for her “good faith reports of violations
of federal law and her filing of a BOLI complaint.”
¶ 41.

Compl. at

Defendant moves for summary judgment on the grounds that

Plaintiff cannot bring a wrongful-termination claim because she
has adequate statutory remedies and she has not established she
was terminated because of her reports of violations of federal
law or for filing a BOLI complaint.
A.

Standards
Under Oregon law an employer may discharge an employee

at any time for any reason unless doing so violates a
contractual, statutory, or constitutional requirement.

Yeager v.

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

The

tort of wrongful discharge is a narrow exception to this general
rule.

Dew v. City of Scappoose, 208 Or. App. 121, 140 (2006).

The tort of wrongful discharge was not intended to be a tort of
general application but rather an interstitial tort to provide a
remedy when the conduct in question is unacceptable and no other
remedy is available.

Reddy v. Cascade Gen., Inc., 227 Or. App.

559, 567 (2009)(citation omitted).

Oregon courts have recognized

two circumstances that give rise to the common-law tort of
wrongful discharge:

(1) discharge for exercising a job-related

33 - OPINION AND ORDER

right of important public interest and (2) discharge for
complying with a public duty.
B.

Plaintiff's wrongful-termination claim related to
Oregon Revised Statute § 659A.199
Defendant contends Plaintiff may not bring a claim for

wrongful termination related to her reports of alleged violations
of federal law because Oregon Revised Statute § 659A.199 provides
an adequate statutory remedy.

See, e.g., Shaw v. Action Fin.

Svcs. LLC., No. 1:14–CV–00469–CL, 2014 WL 4404961, at *3
(Sept. 5, 2014)(“ORS § 659A.199 provides an adequate (if not
better) remedy than a wrongful termination claim.

Thus, Shaw's

claim that AFS violated ORS § 659A.199 by retaliating against
Shaw for Shaw's report of alleged discrimination against him
precludes a common law wrongful termination claim based on the
same conduct.”); Shapiro v. Am. Bank. [FSB], No. 3:12–cv–1358–AC,
2013 WL 6157266, at *4 (Nov. 21, 2013)(same); Franklin v. Clarke,
No. 10–00382–CL, 2011 WL 4024638, at *11 (D. Or. Sept. 9, 2011)
(same); Duran v. Window Prods., Inc., CV No. 10–125–ST, 2011 WL
1261190, at *2–3 (D. Or. Mar. 29, 2011)(same).

But see Krouse v.

Ply Gem Pac. Windows Corp., No. 10–111–HA, 2011 WL 2971774, at *8
(D. Or. July 19, 2011)(holding the plaintiff’s wrongful-discharge
claim was not precluded by § 659A.199).
In Duran the court thoroughly analyzed whether Oregon
Revised Statute § 659A.199 provides an adequate statutory remedy.
In that case the plaintiff brought a claim under § 659A.199 and a
34 - OPINION AND ORDER

claim for wrongful termination.

In bringing her wrongful-

termination claim, the plaintiff relied on Olsen v. Deschutes
Cty., 204 Or. App. 7 (2006), in which the Oregon Court of Appeals
addressed whether the court should dismiss the plaintiffs'
wrongful-termination claim because the plaintiffs had the option
of pursuing adequate statutory remedies under § 659.510
(renumbered § 659A.203) of Oregon's whistleblower statute.
Duran, 2011 WL 1261190, at *4.

The Oregon Court of Appeals

concluded the fact that the statutory remedies were adequate was
insufficient standing alone because the legislature stated
explicitly in the text of the statute that the remedies were not
intended to restrict or to impair any existing common-law
remedies.

The plaintiff in Duran contended even though the

statutory remedies under § 659A.199 were adequate, the
legislature specifically provided in § 659A.199(2) that the
remedies are "in addition to any common law remedy . . . for the
conduct constituting a violation of this section," and,
therefore, the plaintiff's wrongful-termination claim was not
precluded by § 659A.199 under Olsen.
rejected the plaintiff's argument.

The court, however,

Although the court conceded

the language of § 659A.199(2) in conjunction with the holding in
Olsen appears to suggest that the plaintiff's wrongfultermination claim was not precluded, the court noted two grounds
for declining to follow the reasoning in Olsen:

35 - OPINION AND ORDER

First, Olsen interprets Oregon Supreme Court precedent
in this area in a manner that the [Oregon] [S]upreme
[C]ourt itself has not expressly articulated and which
is arguably contrary to that higher court's stillcontrolling holdings on this point. In fact, the
Oregon Supreme Court has never expressly overruled or
even clarified its prior decisions to mean what Olsen
holds. Second, the requirement that clear legislative
intent always be present before a wrongful discharge
claim is precluded — that an adequate statutory remedy
by itself is not enough — necessarily expands the tort
of wrongful discharge into areas where legislation
already has given the claimant an adequate remedy and
the public's interest is protected. Such expansion is
clearly at odds with the tort's original construct, "to
fill a remedial gap where a discharge would be left
unvindicated," Dunwoody v. Handskill Corp., 60 P.3d
1135, 1139 (Or. Ct. App. 2003), and its original
purpose to “serve as a narrow exception to the at-will
employment doctrine in certain limited circumstances
where the courts have determined that the reasons for
the discharge are so contrary to public policy that a
remedy is necessary in order to deter such conduct.”
Draper, 995 F. Supp. at 1129. Put another way, Olsen's
holding at least enlarges the availability of the tort
in ways that the Oregon Supreme Court did not
contemplate when it created the tort and has not
expressly approved since, thus potentially converting
the tort from being a narrow exception to the general
rule to the general rule itself.
2011 WL 1261190, at *3 (quoting Reid v. Evergreen Aviation Ground
Logistics Enter., Inc., Civil No. 07–1641–AC, 2009 WL 136019, at
*15–20 (D. Or. Jan. 20, 2009)).
This Court has previously adopted the reasoning set out
in Duran and continues to do so here.

See, e.g., Findings and

Recommendation of Dennis James Hubel, M.J. (adopted on June 24,
2008, by Brown, J.), James v. Evergreen Intern. Airlines, Inc.,
No. 07-CV-1640-HU, 2008 WL 2564804, at *5 (D. Or. June 23, 2008)
("[The plaintiff] argues that the test used in Draper to
36 - OPINION AND ORDER

determine whether an alternate remedy exists requires a showing
that an alternate adequate remedy exists and that the legislature
intended the remedy to supersede common law remedies.
plaintiff] is incorrect.

[The

The test is a disjunctive one in which

a wrongful termination claim is precluded if the alternate remedy
is adequate or if the legislature intended the remedy to
supersede common law remedies.").

Thus, the Court concludes the

presence of an adequate statutory remedy precludes a claim for
wrongful termination that is based on the same conduct.
On this record the Court concludes Plaintiff's
wrongful-termination claim is precluded to the extent that her
claim is based on the conduct that underlies her claim for
violation of § 659A.199.

The Court, therefore, grants

Defendant's Motion for Summary Judgment as to the portion of
Plaintiff's claim for wrongful termination based on the conduct
that underlies her claim for violation of § 659A.199.
C.

Plaintiff's wrongful-termination claim related to
Oregon Revised Statute § 659A.230.
Defendant contends Plaintiff may not bring a claim for

wrongful termination related to her BOLI report because Oregon
Revised Statute § 659A.230 provides an adequate statutory remedy.
Courts in this district have held § 659A.230 provides
an adequate statutory remedy, which precludes a claim for
wrongful termination.

37 - OPINION AND ORDER

See, e.g., Shapiro, 2013 WL 6157266, at

*5; Franklin, 2011 WL 4024638, at *11 (D. Or. Sept. 9, 2011)
(same); Duran, 2011 WL 1261190, at *4.

The Court adopts the

reasoning of these cases and concludes Plaintiff’s wrongfultermination claim based on her BOLI report is precluded because
§ 659A.230 provides an adequate statutory remedy.
Accordingly, the Court grants Defendant’s Motion for
Summary Judgment as to Plaintiff’s wrongful-termination claim.

CONCLUSION
For these reasons, the Court GRANTS Defendant’s Motion (#87)
for Summary Judgment and DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 1st day of November, 2016.

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

38 - OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

SUSAN HUITT,
Plaintiff,
v.
OPTUM HEALTH SERVICES, a
wholly-owned subsidiary of
UNITED HEALTH GROUP, INC.,
Defendant.

SUSAN HUITT
16617 S.E. Naegeli Drive
Portland, OR 97236
[phone]
Plaintiff, Pro Se
SARAH J. RYAN
APRIL L. UPCHURCH FREDRICKSON
Jackson Lewis PC
1001 S.W. Fifth Avenue
Suite 1205
Portland, OR 97204
[phone]
Attorneys for Defendants

1 - OPINION AND ORDER

3:14-CV-01064-BR
OPINION AND ORDER

BROWN, Judge.
This matter comes before the Court on the Motion (#87) for
Summary Judgment of Defendant Optum Health Services.1

For the

reasons that follow, the Court GRANTS Defendant’s Motion.

BACKGROUND
The following facts are taken from the parties’ summaryjudgment materials and are undisputed unless otherwise noted.
Defendant employed Plaintiff Susan Huitt as a WorkLife
Resource & Referral Consultant (RRC) from October 2005 through
April 2014.

RRCs are “responsible for providing [United Health

Group] UHG2 members who call into the Employee Assistance Program
[with] three different referrals for various services in their
local area.”

Decl. of Mary Kauppila at ¶¶ 3-4.

RRCs are

required to “complete a minimum number of searches per week in a
timely manner.”

Id.

At some point Plaintiff “[took] on, in

addition to her regular responsibilities, the task of working on
the ‘Admin’ team.”

Kauppila Decl. at ¶ 5.

In October 2011 Plaintiff began receiving treatment for
various medical conditions.

Plaintiff’s medical benefits were

1

Defendant notes in its Motion that its correct entity name
is Optum Health Services rather than Optumhealth as it appears in
Plaintiff’s Complaint. The Court, therefore, directs the Clerk
of Court to correct the docket accordingly.
2

Defendant is a wholly-owned subsidiary of United
HealthGroup (UHG).
2 - OPINION AND ORDER

provided by UHG.
Plaintiff reported to WorkLife Resource and Referral
Supervisor Erin Cochrun from 2005 through November 2011.

Cochrun

left Optum in November 2011, and Plaintiff then began reporting
to WorkLife Resource and Referral Supervisor Mary Kauppila.
Kauppila testifies in her Declaration that after she had
supervised Plaintiff for several months, she was notified by some
of Plaintiff’s coworkers that Plaintiff completed the number of
searches required by Defendant’s metrics, but “often took more
time than her teammates to complete searches and often worked
late to get searches completed.”

Kauppila Decl. at ¶ 6.

Plaintiff’s coworkers also reported Plaintiff was unable to
complete her work for the Admin team.
In February 2012 Kauppila began discussing her concerns
about Plaintiff’s job performance with Plaintiff in their monthly
one-on-one meetings.
From February 2012 to August 2012 Kauppila received further
reports from Plaintiff’s coworkers who “complain[ed] about being
partnered with [Plaintiff] because they felt they were doing the
majority of the work . . . [and Plaintiff] had difficulty
communicating with team members and with Kauppila and would send
unnecessarily lengthy emails.”

Kauppila Decl. at ¶ 8.

In February 2012 UHG denied Plaintiff’s request for
reimbursement for “certain treatment” that she had been receiving

3 - OPINION AND ORDER

since October 2011.

In March 2012 Plaintiff appealed the denial

of treatment to UHG.

Plaintiff also contacted the United States

Department of Labor (DOL) regarding the denial of treatment.

At

some point Plaintiff, a DOL employee, and a representative from
UHG participated in a conference call regarding the denial of
Plaintiff’s treatment.

Kauppila was not involved in the denial

of Plaintiff’s treatment and was not aware of the conference call
until August 6, 2012.
On July 22, 2012, Plaintiff submitted a second-level appeal
to UHG regarding the denial of benefits.

Kauppila was unaware of

Plaintiff’s second-level appeal until August 6, 2012.
In August 2012 Kauppila and the manager of the Resource &
Referral Team, Sarah Zaniewski, concluded the added responsibilities of the Admin team were too much for Plaintiff in
combination with her job duties.

Accordingly, on August 6, 2012,

Kauppila met with Plaintiff and explained to her that Kauppila
had noticed Plaintiff was unable to keep up with her regular
duties in a regular work day.

Kauppila also told Plaintiff that

she had received complaints from some of Plaintiff’s coworkers,
including A.J., who did not want to be partnered with Plaintiff.
Kauppila then informed Plaintiff that she was being removed from
the Admin team.

Plaintiff did not suffer any decrease in

compensation or benefits as a result of being removed from the
Admin team nor was she given more burdensome work.

4 - OPINION AND ORDER

In fact, her

essential job duties remained the same.
During the August 6, 2012, meeting but after Kauppila
informed Plaintiff that she was being removed from the Admin team
and that A.J. had complained about her, Plaintiff told Kauppila
that A.J. had given her work computer user name and password to a
neighbor and had allowed the neighbor to use her work computer.
Plaintiff believed A.J.’s actions violated the Health Insurance
Portability and Accountability Act (HIPAA).

Plaintiff testified

at deposition that she did not advise Kauppila or other managers
about A.J.’s actions before the August 6, 2012, meeting because
she “didn’t want to see anything happen to [A.J.] in a negative
way.”

Decl. of April Upchurch Fredrickson, Ex. A at 12.

Kauppila advised Zaniewski about Plaintiff’s allegation against
A.J.
Zaniewski consulted with Defendant’s Human Resources
Department (HRDirect), which advised her to speak with A.J.
directly about Plaintiff’s allegation.

When Zaniewski spoke with

A.J., A.J. denied Plaintiff’s allegation and clarified she had
permitted her neighbor to use her home computer rather than her
work computer.

Zaniewski and HRDirect ultimately concluded

Plaintiff’s allegation could not be substantiated and that
further steps to address the issue were not required.
On August 22, 2012, Plaintiff asked Kauppila for a written
explanation for her removal from the Admin team.

5 - OPINION AND ORDER

Kauppila

responded with a memorandum in which she noted:
Several people on the Admin team have direct
feedback to me about [Plaintiff’s] performance
when they were partnered with her on Admin. They
felt that when they were partnered with
[Plaintiff] that the burden for the Admin work was
not shared. They did not experience the same
partnership and delegating of responsibilities
that they did with other Admin team members and
they "dreaded" being partnered with her. They
stated that they would ask [Plaintiff] if she
could assist with some part of the Admin
responsibilities and she provided a "reason" or an
"excuse" for why she was unable to help. Several
said they simply stopped asking or providing
feedback because they got tired of always hearing
a reason for why she was not available to help.
The other late Admin team members also stated that
when [Plaintiff] was on Admin they would often
have to stay late to make sure all of their
responsibilities were completed and that did not
happen when they were partnered with other people.
[Plaintiff] became overwhelmed at times with
managing the demands of Admin in addition to her
other daily responsibilities as an RRC including
not responding in a timely manner to emails or not
responding at all and not completing her self
assignment in a timely manner.
There was also a concern with [Plaintiff’s] email
communications related to Admin. [Plaintiff] was
taking too much time out of her day creating her
communications and her team mates and management
were taking too much time deciphering
[Plaintiff’s] communications because they were
lengthy and confusing. I also experienced having
to re-hash the same issue with [Plaintiff] and had
to ask her to be willing to put things behind her
once they have been discussed because an
inordinate amount of time was spent discussing the
same issue which was causing frustration and
again, taking too much time out of our day.
Kauppila Decl., Ex. G.

6 - OPINION AND ORDER

Defendant alleges Plaintiff’s performance failed to improve.
On August 26, 2012, Kauppila and Zaniewski drafted an interim
review for Plaintiff that included a rating of “needs
improvement.”

Kauppila and Zaniewski asked Plaintiff to complete

a self-evaluation in order to assess and to discuss Plaintiff’s
interim review.

Plaintiff, however, never completed her self-

evaluation.
On August 29, 2012, Plaintiff was off from work sick.
On August 30, 2012, Kauppila and Zaniewski drafted a
Corrective Action Plan (CAP) that provided Plaintiff with 90 days
to improve her performance.
On August 30, 2012, before Kauppila and Zaniewski were able
to meet with Plaintiff or to present her with her interim review
of CAP, Plaintiff emailed Kauppila and Zaniewski and advised them
that her doctor had placed her on short-term disability leave due
to her “serious medical condition,” that she would be on leave
longer than five days, and that she would be filing a claim for
short-term disability benefits through Sedgwick (UHG’s thirdparty administrator of short-term disability).

Plaintiff then

began a leave of absence under the Family Medical Leave Act
(FMLA).
Plaintiff did not return to work after August 29, 2012, and
exhausted her FMLA leave by October 31, 2012.

After October 31,

2012, Plaintiff was on a leave of absence without pay until

7 - OPINION AND ORDER

April 2, 2014, at which point Defendant terminated Plaintiff’s
employment because she could not return to work.
In March 2013 while Plaintiff was on her leave of absence,
she registered a complaint with HRDirect alleging Sedgwick
violated HIPAA when it left a copy of Plaintiff’s medical records
unattended on her front doorstep.

HRDirect investigated and in

October 2013 determined Plaintiff’s complaint was “without
merit.”

Fredrickson Decl., Ex. H at 2.

On July 29, 2013, Plaintiff filed a complaint with the
Oregon Bureau of Labor and Industries (BOLI) in which she alleged
Defendant:

(1) violated Oregon Revised Statute § 659A.199 when

it subjected her to “a hostile working environment and
discriminatory treatment” after she reported to Defendant what
Plaintiff “believed were possible violations of HIPPA [sic] and
other privacy laws by certain other employees” and (2) violated
Oregon Revised Statute § 659A.112 when it subjected her to “a
hostile working environment due in substantial part because [she]
has a disability and require[s] reasonable accommodation to [her]
disability.”

Fredrickson Decl., Ex J at 2.

On March 13, 2014, Defendant sent Plaintiff a letter in
which it advised:
On August 29, 2012 you began a leave of absence.
Your leave under the Family and Medical Leave Act
(FMLA) was exhausted on October 31, 2012.
You have now been on leave for over 18 months, and
as of the date of this letter, you have not been
8 - OPINION AND ORDER

released to return to work (with or without
accommodations). Further, the medical
documentation submitted by your health care
provider does not list any anticipated date on
which you will be able to return to work with or
without accommodation(s). Therefore, UHG has
determined that your employment will be
administratively terminated effective April 2,
2014.
Fredrickson Decl., Ex. G at 1.
On June 2, 2014, Plaintiff filed a pro se complaint in
Multnomah County Circuit Court against Defendant and asserted
claims for disability discrimination in violation of Oregon
Revised Statute § 659A.112, whistleblower retaliation in
violation of Oregon Revised Statutes §§ 659A.199 and 659A.230,
and wrongful termination.
On July 2, 2014, Defendant removed the matter to this Court
on the basis of diversity and federal-question jurisdiction.
On August 8, 2016, Defendant filed a Motion for Summary
Judgment.
On August 10, 2016, the Court issued a Summary Judgment
Advice Notice to Plaintiff advising her that if she did not
submit evidence in opposition to Defendant’s Motion, summary
judgment could be entered against her.
The Court took Defendant’s Motion under advisement on
October 6, 2016.
STANDARDS
Summary judgment is appropriate when “there is no genuine

9 - OPINION AND ORDER

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).

See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005).

In response to a properly

supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
. . . .

Id.

"This burden is not a light one

The non-moving party must do more than show there is

some 'metaphysical doubt' as to the material facts at issue."

In

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."

Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).

A “mere

disagreement or bald assertion” that a genuine dispute as to a
10 - OPINION AND ORDER

material fact exists “will not preclude the grant of summary
judgment.”

Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-

1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).

When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.

Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.

Id.

DISCUSSION
Defendant moves for summary judgment on all of Plaintiff’s
claims.
I.

Plaintiff’s First Claim against Defendant for disability
discrimination in violation of Oregon Revised Statute
§ 659A.112.
Plaintiff alleges in her First Claim that she has a

disability as defined by Oregon Revised Statute § 659A.104(1)(a)
that substantially limits her ability to perform major life
activities, that she was a qualified individual with a
disability, that she was able to perform the essential functions
11 - OPINION AND ORDER

of her job with or without reasonable accommodation, and that
Defendant discriminated against her by “creating a hostile work
environment because of [her] disability.”

Compl. at ¶ 23.

Plaintiff also alleges she was subject to adverse employment
actions when Defendant removed her from the Admin team and when
it terminated her employment.
Defendant moves for summary judgment on the grounds that
Plaintiff did not suffer an adverse employment action when
Defendant removed her from the Admin team, that Plaintiff has not
established she was removed from the Admin team because of her
disability, that Plaintiff was not a qualified individual with a
disability at the time of her termination, and that Plaintiff’s
termination was not an adverse employment action.
A.

Oregon disability discrimination standards.
Oregon Revised Statute § 659A.112(1) provides:

“It is

an unlawful employment practice for any employer to . . .
discharge from employment or to discriminate in compensation or
in terms, conditions or privileges of employment on the basis of
disability.”
To establish a prima facie case of discrimination under
§ 659A.112 the plaintiff must show:

(1) she is a qualified

individual with a disability, (2) she suffered an adverse
employment action, and (3) there was a causal connection between
the adverse employment action and her disability.

12 - OPINION AND ORDER

Rogers v.

Oregon Trail Elec. Consumers Co-op., Inc., No. 3:10–CV–1337–AC,
2012 WL 1635127, at *22 (D. Or. May 8, 2012)(citing Hutton v. Elf
Atochem N. Am. Inc., 273 F.3d 884, 891 (9th Cir. 2001)).

See

also Wessels v. Moore Excavation, Inc., No. 3:14-cv-01329-HZ,
2016 WL 1589894, at *3 (D. Or. Apr. 18, 2016)(same).

The proof

required at the prima facie stage “‘is minimal and does not even
need to rise to the level of a preponderance of evidence.’”
Rogers, 2012 WL 1635127, at *22 (quoting Wallis v. J.R. Simplot
Co., 26 F.3d 885, 889 (9th Cir. 1994)).
If the plaintiff establishes a prima facie case, the
burden shifts to the defendant to provide a legitimate,
nondiscriminatory reason for the adverse employment action.
Wessels, 2016 WL 1589894, at *3 (citing Curley v. City of N. Las
Vegas, 772 F.3d 629, 632 (9th Cir. 2014)).
If the defendant provides a legitimate, nondiscriminatory
reason for the adverse employment action, the burden shifts back
to the plaintiff to prove the reason given by the defendant was
pretextual.

To establish pretext the plaintiff must either raise

an issue of fact as to whether the defendant’s legitimate,
nondiscriminatory reason is genuine or introduce direct evidence
of a discriminatory motive.

Villiarimo v. Aloha Island Air,

Inc., 281 F.3d 1054, 1063 (9th Cir. 2002).

See also Tyson v. Or.

Anesthesiology Group, P.C., No. 03-CV-1192-HA, 2008 WL 2371420,
at *5 (D. Or. June 6, 2008).
13 - OPINION AND ORDER

Temporal proximity alone is

insufficient to create evidence of pretext.

Ventura v. Johnson

Controls, Inc., Nos. 08–CV-1318–PK, 09–CV-190–PK, 2010 WL
3767882, at *10 (D. Or. Sept. 16, 2010)(quoting Hashimoto v.
Dalton, 118 F.3d 671, 680 (9th Cir. 1997)(although the temporal
proximity of an adverse employment action to an employee's
protected behavior may suffice to support a “minimal prima facie
case of retaliation,” it is insufficient to carry the plaintiff’s
burden “of establishing a triable issue of fact on the ultimate
question” of retaliation).
B.

Plaintiff did not suffer an adverse employment action
when Defendant removed her from the Admin team.
As noted, Plaintiff alleges Defendant discriminated

against her because of her disability when it removed her from
the Admin team.

Defendant, however, contends Plaintiff’s removal

from the Admin team does not constitute an adverse employment
action because her removal did not result in any reduction in
compensation or any negative effects in her terms of employment
or employment conditions.
“ ‘An adverse employment action is one that materially
affects the terms, conditions, or privileges of the plaintiff's
employment.’”

Redwind v. Western Union, LLC, No. 3:14-cv-

01699-AC, 2016 WL 3606595, at *12 (D. Or. May 2, 2016)(quoting
Ray v. Henderson, 217 F.3d 1234, 1242 (9th Cir. 2000)).
those employment actions that may qualify as adverse are
termination, demotion, suspension, removal of job
14 - OPINION AND ORDER

“Among

responsibilities, imposition of more burdensome work activities,
overtime, reduction in salary or benefits, and substantial
interference with work facilities that are key to job
performance.”

Leighton v. Three Rivers School Dist.,

No. 1;12–cv–1275–CL, 2015 WL 272894, at *7 (D. Or. Jan. 20,
2105)(citing Kang v. U. Lim Am., Inc., 296 F.3d 810, 818–19 (9th
Cir. 2002)(the plaintiff established a prima facie case of
disparate treatment when the defendant subjected the plaintiff to
overtime and termination “that constituted a material change in
the terms and conditions of [the plaintiffs] employment.”).

See

also Chuang v. Univ. of Cal. Davis, Bel. of Trs., 225 F.3d 1115,
1126 (9th Cir. 2000)(“[T]he removal of or substantial
interference with work facilities important to the performance of
the job constitutes a material change in the terms and conditions
of a person's employment,” and, therefore, qualifies as an
adverse employment action); Kortan v. Ca. Youth Auth., 217 F.3d
1104, 1113 (9th Cir. 2000)(no adverse employment action when the
plaintiff was not demoted, given different or more burdensome
work, fired or suspended, denied any raises, or suffered a
reduction in salary or any other benefit).
The record reflects Plaintiff did not suffer any
decrease in compensation or benefits nor was she given more
burdensome work responsibilities as a result of being removed
from the Admin team.

In fact, the record does not reflect

15 - OPINION AND ORDER

Plaintiff suffered any negative effects in her RRC job as a
result of her removal from the Admin team.
On this record the Court concludes Plaintiff has not
established a genuine dispute of material fact exists as to
whether removal from the Admin team constituted an adverse
employment action.

Because Plaintiff cannot establish all the

elements of her First Claim for disability discrimination, the
Court grants Defendant summary judgment on Plaintiff’s First
Claim for disability discrimination based on her removal from the
Admin team.
C.

Plaintiff was not a qualified individual with a
disability at the time of her termination.
Plaintiff alleges Defendant violated Oregon Revised

Statute § 659A.112(1) when it terminated her because of her
disability.

Defendant, however, asserts Plaintiff was not a

qualified individual with a disability from September 2012 to the
time of her termination effective April 2, 2014.

Plaintiff,

therefore, cannot establish all the elements of a claim for
disability discrimination related to her termination.
As noted, in order to establish a prima facie case of
discrimination under § 659A.112 Plaintiff must show, among other
things, that she was a qualified individual with a disability at
the time of termination.

Under § 659A.112 a qualified individual

with a disability is one who can perform the essential functions
of the job with or without reasonable accommodation.
16 - OPINION AND ORDER

“Determining whether Plaintiff is a ‘qualified individual’
requires the Court to consider whether Plaintiff was able to
perform the essential functions of the . . . position at the time
of [her] termination without accommodation, and then, if [she]
cannot, whether [s]he was able to do so with reasonable
accommodation.”

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

No. 3:12–cv–01740–HU, 2014 WL 585376, at *14 (D. Or. Feb. 13.
2014)(emphasis in original)(citing Dark v. Curry County, 451 F.3d
1078, 1086 (9th Cir. 2006)).

If Plaintiff could not perform the

essential functions of the position with a reasonable
accommodation, § 659A.112 does not apply.

See Cripe v. City of

San Jose, 261 F.3d 877, 884–85 (9th Cir. 2001).
The record reflects Plaintiff was unable to perform the
essential functions of her RRC job with or without reasonable
accommodation after she went on medical leave on August 30, 2012,
through her termination in April 2014.

Moreover, Plaintiff

testified at deposition that “starting in September of 2012 [she
could not] have performed the central functions of [her] job with
or without accommodation,” and she remained unable to do so up to
and after the date of her termination letter on March 13, 2014.
Fredrickson Decl., Ex. A at 29, 37.

In fact, Plaintiff took

medical leave on August 30, 2012, and never returned to her job
with Defendant or took any other job.
The Court concludes in the face of Defendant’s Motion

17 - OPINION AND ORDER

Plaintiff has not established a genuine dispute of material fact
exists as to whether she was a qualified individual with a
disability at the time of her termination.

Accordingly, with a

failure of proof as to that material element, Plaintiff’s First
Claim for disability discrimination in violation of § 659A.112
fails, and, therefore, the Court grants Defendant’s Motion for
Summary Judgment as to that claim.
II.

Plaintiff’s Second and Third Claims for whistleblower
retaliation.
Plaintiff alleges in her Second Claim that her “multiple

acts of reporting ERISA and HIPPA [sic] violations to defendant
and to the Department of Labor, Employee Benefits Security
Administration constituted a report of information plaintiff
reasonably believed was evidence of a violation of federal law,
rule, or regulation.”

Compl. at ¶ 32.

Plaintiff alleges

Defendant terminated her “in substantial part due to [her] report
of a violation of law, rule, or regulation” and retaliated
against her in violation of Oregon Revised Statute § 659A.199 “by
creating a hostile work environment because of her reports of
federal law violations.”

Compl. at ¶¶ 33-34.

In her Third Claim Plaintiff alleges “Defendants engaged in
the acts alleged [in her Complaint] for the reason that plaintiff
commenced a complaint against defendant with BOLI” and
“Defendants terminated plaintiff’s employment in substantial part
due to plaintiff’s report of a violation of law, rule, or
18 - OPINION AND ORDER

regulation in violation of ORS 659A.230.”

Compl. ¶¶ 38-39.

Defendant moves for summary judgment on Plaintiff’s Second
and Third Claims on the grounds that (1) to the extent Plaintiff
alleges she was terminated or otherwise retaliated against for
reporting an ERISA violation, her claims are preempted by ERISA;
(2) Plaintiff cannot establish she engaged in a protected
activity for purposes of her Third Claim; (3) Plaintiff cannot
establish a causal link between her alleged protected activity
and a cognizable employment action; and (4) Plaintiff did not
suffer adverse employment actions when Defendant removed her from
the Admin team and terminated her employment.
A.

Whistleblower standards.
Oregon Revised Statute § 659A.199(a) provides:
It is an unlawful employment practice for an
employer to discharge, demote, suspend or in any
manner discriminate or retaliate against an
employee . . . for the reason that the employee
has in good faith reported information that the
employee believes is evidence of a violation of a
state or federal law, rule or regulation.
Oregon Revised Statute § 659A.230 provides:
It is an unlawful employment practice for an
employer to discharge, demote, suspend or in any
manner discriminate or retaliate against an
employee . . . for the reason that the employee
has in good faith reported criminal activity by
any person, has in good faith caused a . . .
complaint to be filed against any person, . . .
has in good faith brought a civil proceeding
against an employer or has testified in good faith
at a civil proceeding or criminal trial.
To survive summary judgment on a whistleblower claim

19 - OPINION AND ORDER

under §§ 659A.199 or 659A.230 a plaintiff must identify
the existence of facts from which a reasonable
fact finder could conclude . . . she engaged in
protected activity . . . [and] defendant[]
retaliated against her in response to that
activity. . . . [I]f the employer asserts a
non-discriminatory reason for the employee's
termination, the plaintiff must show that the
employer would not have made the same decision
absent a discriminatory motive.
Merrill v. M.I.T.C.H. Charter Sch. Tigard, No. 10-CV-219-HA, 2011
WL 1457461, at *7 (D. Or. Apr. 4, 2011)(citations omitted).

See

also Dawson v. Entek Int'l, 630 F.3d 928, 936 (9th Cir. 2011)
(applies burden-shifting framework to state and federal claims).
To establish a prima facie case of retaliation under
Oregon Revised Statutes §§ 659A.199 and 659A.230 the "[p]laintiff
'must show (1) she was engaging in a protected activity, (2) she
suffered an adverse employment decision, and (3) there was a
causal link between the protected activity and the adverse
employment decision.'"

Sandberg v. City of N. Plains, No.

10–CV–1273–HZ, 2012 WL 602434, at *7 (D. Or. Feb. 22, 2012)
(quoting Ruggles v. Cal. Polytechnic State Univ., 797 F.2d 782,
785 (9th Cir. 1986)).3

See also Shultz v. Multnomah Cty.,

No. 08–CV–886–BR, 2009 WL 1476689, at *13 (D. Or. May 27, 2009)
(same).
3

Courts have held “Title VII of the Civil Rights Act
generally provides guidance in interpreting the employment
discrimination provisions of O.R.S. 659A.” James v. Or.
Sandblasting & Coating, Inc., 2016 WL 5402218, at *2 n.1 (D. Or.
Sept. 25, 2016).
20 - OPINION AND ORDER

To establish causation the plaintiff must show her
protected activity was a "'substantial factor in the motivation
to discharge the employee.'”

Sandberg, 2012 WL 602434, at *7

(quoting Estes v. Lewis and Clark College, 152 Or. App. 372, 381
(1998)).

See also Huff v. City of Portland, Civ. No. 05–1831–AA,

2008 WL 1902760, at *6 (D. Or. Apr. 28, 2008)(“Plaintiff bears
the burden of establishing that her alleged disclosures
constituted 'a substantial factor' in the discontinuation of her
employment.”).
If the plaintiff establishes a prima facie case, the
burden shifts to the defendant to rebut the inference of
retaliation by offering a legitimate, nondiscriminatory reason
for the employee's termination.

If the defendant successfully

rebuts the inference of retaliation, the burden shifts back to
the plaintiff to show that the defendant's explanation is
pretextual.

Neighorn v. Quest Health Care, No. 1:10-CV-03105-CL,

2012 WL 1566176, at *28 (D. Or. May 2, 2012).
B.

To the extent that Plaintiff alleges she was terminated
or otherwise retaliated against for reporting ERISA
violations, her claims are preempted by ERISA.
As noted, Plaintiff alleges Defendant terminated her in

substantial part because she reported ERISA violations to
Defendant, to the Department of Labor, and/or to the Employee
Benefits Security Administration.

Specifically, Plaintiff

alleges in her Complaint that she “reported what she believed to
21 - OPINION AND ORDER

be violations of ERISA by filing an internal appeal with
defendant challenging its refusal to approve payment for
plaintiff’s pain management therapy.”
1.

Compl. at ¶ 9.

ERISA preemption standards.
In Aetna Healthcare v. Davila the Supreme Court

explained ERISA preemption as follows:
Congress enacted ERISA to "protect . . . the
interests of participants in employee benefit
plans and their beneficiaries" by setting out
substantive regulatory requirements for employee
benefit plans and to "provid[e] for appropriate
remedies, sanctions, and ready access to the
Federal courts." 29 U.S.C. § 1001(b). The
purpose of ERISA is to provide a uniform
regulatory regime over employee benefit plans.
To this end, ERISA includes expansive pre-emption
provisions, see ERISA § 514, 29 U.S.C. § 1144,
which are intended to ensure that employee benefit
plan regulation would be "exclusively a federal
concern." Alessi v. Raybestos-Manhattan, Inc.,
451 U.S. 504, 523 (1981).
ERISA's "comprehensive legislative scheme"
includes "an integrated system of procedures for
enforcement." Russell, 473 U.S., at 147 (internal
quotation marks omitted). This integrated
enforcement mechanism, ERISA § 502(a), 29 U.S.C.
§ 1132(a), is a distinctive feature of ERISA.
* * *
Therefore, any state-law cause of action that
duplicates, supplements, or supplants the ERISA
civil enforcement remedy conflicts with the clear
congressional intent to make the ERISA remedy
exclusive and is therefore pre-empted. See 481
U.S. at 54-56; see also Ingersoll-Rand Co. v.
McClendon, 498 U.S. 133, 143-145 (1990).
542 U.S. 200, 208 (2004).
ERISA's preemption provision provides ERISA shall
22 - OPINION AND ORDER

generally "supersede any and all State laws insofar as they may
now or hereafter relate to any employee benefit plan described in
section 1003(a) of this title and not exempt under section
1003(b) of this title."

29 U.S.C. § 1144(a).

ERISA bars employers from retaliating “against any
person because [s]he has given information . . . in any inquiry
or proceeding relating to” ERISA.

29 U.S.C. § 1140.

The Supreme

Court has held ERISA preemption applies when a plaintiff’s statelaw claim falls within the purview of § 1144.

Metro. Life Ins.

Co. v. Taylor, 481 U.S. 58, 63-64 (1987).
2.

Analysis.
The Ninth Circuit has held claims alleging

retaliation or discrimination because of a plaintiff’s report of
“concerns about ‘potential and/or actual violations . . . of
ERISA’” are preempted by ERISA.

See, e.g., Hashimoto v. Bank of

Haw., 999 F.2d 408, 411 (9th Cir. 1993)(“[W]e hold the Hawaii
Whistle Blower's Act, to the extent an ERISA violation is
involved, [is] preempted by the specific provision of ERISA
protecting whistle blowers such as [the plaintiff].”).

District

courts in the Ninth Circuit have also found state whistleblower
claims are preempted by ERISA.

See, e.g., Perez v. Brain, 2015

WL 3505249, at *11 (C.D. Cal. Jan. 30, 2015)(“When read together
with the other allegations in the [second amended complaint],
. . . [the plaintiff] sufficiently pleads . . . a ‘discharge’ in
23 - OPINION AND ORDER

violation of” ERISA, and, therefore, the plaintiff’s state-law
claim is preempted by ERISA).

Compare Yoshimura v. Haw.

Carpenters Union Local 745, 2015 WL 6126805, at *4 (D. Haw.
Oct. 15, 2015)(the plaintiff’s state whistleblower claim was not
preempted by ERISA because the plaintiff did not allege he made
any reports of ERISA violations).
On this record the Court concludes to the extent
that Plaintiff alleges she was terminated or otherwise retaliated
against for reporting violations of ERISA, her claims are
preempted by ERISA pursuant to Hashimoto.

The Court, therefore,

grants Defendant’s Motion for Summary Judgment as to Plaintiff’s
Second and Third Claims to the extent that they are based on
Plaintiff’s alleged termination for reporting violations of
ERISA.
C.

Plaintiff has not established she engaged in a
protected activity for purposes of § 659A.230.
Plaintiff alleges in her Third Claim that Defendant

terminated her in retaliation for commencing a complaint with
BOLI against Defendant.

Defendant, however, points out that

Oregon courts have held § 659A.230 does not apply to protect
individuals who have filed complaints with administrative
agencies.

See, e.g., Huber v. Or. Dep’t of Ed., 235 Or. App.

230, 238 (2010)(“The critical flaw in plaintiff's position is
that his complaint to the DHHS and threat to complain to the OSBN
were administrative matters . . . and were therefore not
24 - OPINION AND ORDER

protected by ORS 659A.230.”); Mantia v. Hanson, 190 Or. App. 36,
41 n.3 (2003) (the plaintiff's complaint about “allegedly unsafe
work conditions and threat . . . to complain to Oregon
occupational safety authorities about those conditions” was not
protected by

§ 659.5504).

The Court, therefore, concludes on this record that
Plaintiff has not established she engaged in activity protected
by § 659A.230.
D.

Plaintiff has not established a causal connection
between the alleged adverse employment actions and her
allegedly protected activity.
Even if Plaintiff established she engaged in protected

activity when she reported alleged violations of HIPAA,5
Defendant asserts Plaintiff cannot establish a causal connection
between her complaints and her removal from the Admin team, the
drafting of the CAP, or her termination.
A plaintiff can establish a causal connection between
her protected activity and the adverse employment action
“(1) indirectly, by showing that the protected activity was
followed closely by discriminatory treatment or through other

4

This statute was renumbered to § 659A.230 in 2001.

5

As noted, to the extent that Plaintiff’s whistleblower
claims are based on Plaintiff’s March 2012 appeal to UHG of the
denial of her benefits, her contact with the DOL regarding the
denial of her benefits, and her July 2012 second-level appeal to
UHG of the denial of her benefits, those portions of her claims
are preempted by ERISA.
25 - OPINION AND ORDER

evidence such as disparate treatment of fellow employees who
engaged in similar conduct, or (2) directly, through evidence of
retaliatory animus directed against a plaintiff by the
defendant.”

Boynton-Burns v. Univ. of Or., 197 Or. App. 373,

380-81 (2005)(emphasis in original, quotation omitted).
Plaintiff alleges Defendant removed her from the Admin
team, Defendant terminated her, and Kauppila and Zaniewski
drafted the CAP in retaliation for (1) Plaintiff’s report on
August 6, 2012, that A.J. had given her work computer user name
and password to a neighbor and had allowed the neighbor to use
her work computer; (2) Plaintiff’s report that on March 27, 2013,
Sedgwick left her medical records on her doorstep; and
(3) Plaintiff’s filing of a BOLI complaint on July 29, 2013, in
which she alleged UHG retaliated against her for reporting HIPAA
violations.

Plaintiff relies on the temporal proximity between

her alleged protected activities and the adverse employment
actions to establish a causal connection.
1.

Plaintiff’s removal from the Admin team.
It is undisputed that during the August 6, 2012,

meeting with Kauppila, Plaintiff told Kauppila that A.J. had
given her work computer user name and password to a neighbor and
had allowed the neighbor to use her work computer.

Plaintiff

believed A.J.’s conduct was a violation of HIPAA.

The record,

however, reflects Plaintiff reported the alleged violation for

26 - OPINION AND ORDER

the first time after Kauppila decided to remove Plaintiff from
the Admin team.

Specifically, Plaintiff testified at deposition

that she did not advise management about A.J.’s actions before
the August 6, 2012, meeting because she “didn’t want to see
anything happen to [A.J.] in a negative way.”

Fredrickson Decl.,

Ex. A at 12.
Because the record reflects Kauppila made the
decision to remove Plaintiff from the Admin team before Plaintiff
made any report of A.J.’s alleged HIPAA violation, the Court
concludes Plaintiff has not established a causal connection
between her removal from the Admin team and her report of A.J.’s
alleged HIPAA violation.
2.

Plaintiff’s termination.
Plaintiff relies on the temporal proximity of her

April 2014 termination and the August 2012 draft CAP, her March
2013 complaint that Sedgwick violated HIPAA, and her July 2013
report to the DOL to establish a causal connection between her
termination and her reports of the alleged HIPAA violations.
Courts have made clear that when a plaintiff
“attempts to establish the causal connection indirectly, relying
on mere temporal proximity between the events, the events must be
‘very close’ in time.”

Boynton-Burns, 197 Or. App. at 381

(citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001)).

For example, in Miller v. Clark County School District

27 - OPINION AND ORDER

the Ninth Circuit held the plaintiff failed to establish that a
genuine dispute of material fact existed as to whether his
protected conduct was a motivating factor in his termination
based on the temporal proximity of his engagement in the
allegedly protected activity and his termination for
insubordination “more than a month” later.
(9th Cir. 2010).

378 F. App’x 623, 626

Similarly, in Swan v. Bank of America the Ninth

Circuit concluded the plaintiff could not establish her
termination was “causally related” to her medical leave because
the defendant terminated her “four months after her return from
leave, which is too remote in time to support a finding of
causation premised solely on temporal proximity.”

360 F. App’x

903, 906 (9th Cir. 2009)(citing Breeden, 532 U.S. at 273).

In

several cases district courts in the Ninth Circuit have concluded
that seven to nine months between the protected activity and the
adverse action does not constitute sufficient temporal proximity
to establish a causal connection.

See, e.g., Anderson v. City

and County of San Francisco, 169 F. Supp. 2d 995, 1028 (N.D. Cal.
Mar. 14, 2106) (seven months is insufficient); Santa Ana Police
Officers Ass’n v. City of Santa Ana, No: SA CV 15-1280-DOC(DFMx),
2016 WL 827750, at *12 (C.D. Cal. Mar. 2, 2016)(eight months is
insufficient).
The time between Plaintiff’s April 2014
termination and her August 2012 complaint that A.J. violated

28 - OPINION AND ORDER

HIPAA was more than 19 months, the time between Plaintiff’s April
2014 termination and her March 2013 complaint that Sedgwick
violated HIPAA is 13 months, and the time between Plaintiff’s
termination and her July 2013 DOL complaint is eight months.
Plaintiff’s termination, therefore, did not occur “very close” in
time to Plaintiff’s allegedly protected activities.
On this record the Court concludes Plaintiff has
failed to establish a causal connection between her termination
and any of her allegedly protected activities.
3.

Drafting of the CAP.
As noted, on August 30, 2012, Kauppila and

Zaniewski drafted a CAP that provided Plaintiff with 90 days to
improve her performance.

It is undisputed that Kauppila and

Zaniewski never delivered or presented the CAP to Plaintiff.
Plaintiff alleges Kauppila and Zaniewski drafted
the CAP in retaliation for Plaintiff’s August 6, 2012, report
that A.J. violated HIPAA.

Plaintiff relies on the temporal

proximity of the drafting of the CAP to her August 6, 2012, HIPAA
violation report to establish a causal connection.

The record

reflects Kauppila and Zaniewski drafted the CAP on August 30,
2012, which was approximately three weeks after Plaintiff
reported A.J.’s alleged HIPAA violation.

The Court finds three

weeks is sufficiently close in time to support a prima facie
finding of causality.

29 - OPINION AND ORDER

Defendant asserts the draft CAP is not an adverse
employment action, and, therefore, Plaintiff has not established
a prima facie case of retaliation.

Defendant also asserts even

if Plaintiff established a prima facie case of retaliation,
Defendant has a legitimate, nondiscriminatory reason for drafting
the CAP.
As noted, Kauppila and Zaniewski never provided or
presented the CAP to Plaintiff.

In addition, the record does not

reflect there were any tangible employment effects on Plaintiff
as a result of the draft CAP.

In fact, Plaintiff testified at

deposition that “there was no corrective action plan” before she
left on medical leave on August 29, 2012.
Ex. A at 9.

Fredrickson Decl.,

Thus, there is not any indication that the CAP draft

of which Plaintiff was unaware and which did not result in any
tangible employment harm “might well have dissuaded a reasonable
[person] from making . . . a charge” of HIPAA violation.

Ollier

v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 868 (9th Cir.
2014).
On this record the Court, therefore, concludes the
drafting of the CAP was not an adverse employment action.

See,

e.g., Pasco v. Mentor Graphics Corp, 199 F. Supp. 2d 1034, 1054
(D. Or. 2001)(“A negative performance evaluation . . . that does
not remain in the employee's file or result in some other
tangible employment harm is not an adverse employment action.”)

30 - OPINION AND ORDER

(citing Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1112–13 (9th
Cir. 2000)).

Plaintiff, therefore, has not established a prima

facie case of retaliation based on the CAP.
Even if Plaintiff had established a prima facie
case of retaliation based on the draft CAP, Defendant, as noted,
asserts it had a legitimate, nondiscriminatory reason for
drafting the CAP.

Specifically, Defendant asserts Kauppila and

Zaniewski drafted the CAP after Kauppila observed Plaintiff
struggled to complete her daily work and heard reports from
Plaintiff’s coworkers that they were frustrated with Plaintiff’s
unnecessarily long emails, that Plaintiff was difficult to work
with, and that they did not want to be partnered with Plaintiff
because they felt they were doing the majority of the work.
On this record the Court concludes Defendant has
provided a legitimate, nondiscriminatory reason for drafting the
CAP.

The burden, therefore, shifts back to Plaintiff to prove

the reason given by Defendant for drafting the CAP was
pretextual.
To establish pretext Plaintiff must either raise
an issue of fact as to whether Defendant’s legitimate,
nondiscriminatory reason is genuine or introduce direct evidence
of a discriminatory motive.

See Villiarimo, 281 F.3d at 1063.

As noted, temporal proximity alone is insufficient to establish
evidence of pretext.

31 - OPINION AND ORDER

Ventura, 2010 WL 3767882, at *10.

See also

Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997)(although
the temporal proximity of an adverse employment action to an
employee's protected behavior may suffice to support a “minimal
prima facie case of retaliation,” it is insufficient to carry the
plaintiff’s burden “of establishing a triable issue of fact on
the ultimate question” of retaliation).

Plaintiff does not

identify any nonspeculative evidence to establish that
Defendant’s stated legitimate, nondiscriminatory reason for
drafting the CAP is pretextual.

The record contains emails from

Plaintiff’s coworkers in which they complained about Plaintiff’s
performance and communications.

The record also includes

memoranda and emails from Plaintiff’s managers in which they
express concerns about Plaintiff’s performance and complaints
from Plaintiff’s coworkers.

Plaintiff testified in her

deposition that several of her coworkers criticized her
performance.

Fredrickson Decl., Ex. A at 15-17.

Viewing the

evidence in the light most favorable to Plaintiff, the Court
concludes Plaintiff has not established Defendant’s stated
legitimate, nondiscriminatory reason for drafting the CAP was
pretextual.
On this record the Court concludes Plaintiff
has not established a genuine dispute of material fact exists
as to Plaintiff’s Second and Third Claims for retaliation.
Accordingly, the Court grants Defendant’s Motion for Summary

32 - OPINION AND ORDER

Judgment as to those claims.
IV.

Plaintiff’s Fourth Claim for Wrongful Termination
In her Fourth Claim Plaintiff alleges Defendant terminated

her in substantial part for her “good faith reports of violations
of federal law and her filing of a BOLI complaint.”
¶ 41.

Compl. at

Defendant moves for summary judgment on the grounds that

Plaintiff cannot bring a wrongful-termination claim because she
has adequate statutory remedies and she has not established she
was terminated because of her reports of violations of federal
law or for filing a BOLI complaint.
A.

Standards
Under Oregon law an employer may discharge an employee

at any time for any reason unless doing so violates a
contractual, statutory, or constitutional requirement.

Yeager v.

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

The

tort of wrongful discharge is a narrow exception to this general
rule.

Dew v. City of Scappoose, 208 Or. App. 121, 140 (2006).

The tort of wrongful discharge was not intended to be a tort of
general application but rather an interstitial tort to provide a
remedy when the conduct in question is unacceptable and no other
remedy is available.

Reddy v. Cascade Gen., Inc., 227 Or. App.

559, 567 (2009)(citation omitted).

Oregon courts have recognized

two circumstances that give rise to the common-law tort of
wrongful discharge:

(1) discharge for exercising a job-related

33 - OPINION AND ORDER

right of important public interest and (2) discharge for
complying with a public duty.
B.

Plaintiff's wrongful-termination claim related to
Oregon Revised Statute § 659A.199
Defendant contends Plaintiff may not bring a claim for

wrongful termination related to her reports of alleged violations
of federal law because Oregon Revised Statute § 659A.199 provides
an adequate statutory remedy.

See, e.g., Shaw v. Action Fin.

Svcs. LLC., No. 1:14–CV–00469–CL, 2014 WL 4404961, at *3
(Sept. 5, 2014)(“ORS § 659A.199 provides an adequate (if not
better) remedy than a wrongful termination claim.

Thus, Shaw's

claim that AFS violated ORS § 659A.199 by retaliating against
Shaw for Shaw's report of alleged discrimination against him
precludes a common law wrongful termination claim based on the
same conduct.”); Shapiro v. Am. Bank. [FSB], No. 3:12–cv–1358–AC,
2013 WL 6157266, at *4 (Nov. 21, 2013)(same); Franklin v. Clarke,
No. 10–00382–CL, 2011 WL 4024638, at *11 (D. Or. Sept. 9, 2011)
(same); Duran v. Window Prods., Inc., CV No. 10–125–ST, 2011 WL
1261190, at *2–3 (D. Or. Mar. 29, 2011)(same).

But see Krouse v.

Ply Gem Pac. Windows Corp., No. 10–111–HA, 2011 WL 2971774, at *8
(D. Or. July 19, 2011)(holding the plaintiff’s wrongful-discharge
claim was not precluded by § 659A.199).
In Duran the court thoroughly analyzed whether Oregon
Revised Statute § 659A.199 provides an adequate statutory remedy.
In that case the plaintiff brought a claim under § 659A.199 and a
34 - OPINION AND ORDER

claim for wrongful termination.

In bringing her wrongful-

termination claim, the plaintiff relied on Olsen v. Deschutes
Cty., 204 Or. App. 7 (2006), in which the Oregon Court of Appeals
addressed whether the court should dismiss the plaintiffs'
wrongful-termination claim because the plaintiffs had the option
of pursuing adequate statutory remedies under § 659.510
(renumbered § 659A.203) of Oregon's whistleblower statute.
Duran, 2011 WL 1261190, at *4.

The Oregon Court of Appeals

concluded the fact that the statutory remedies were adequate was
insufficient standing alone because the legislature stated
explicitly in the text of the statute that the remedies were not
intended to restrict or to impair any existing common-law
remedies.

The plaintiff in Duran contended even though the

statutory remedies under § 659A.199 were adequate, the
legislature specifically provided in § 659A.199(2) that the
remedies are "in addition to any common law remedy . . . for the
conduct constituting a violation of this section," and,
therefore, the plaintiff's wrongful-termination claim was not
precluded by § 659A.199 under Olsen.
rejected the plaintiff's argument.

The court, however,

Although the court conceded

the language of § 659A.199(2) in conjunction with the holding in
Olsen appears to suggest that the plaintiff's wrongfultermination claim was not precluded, the court noted two grounds
for declining to follow the reasoning in Olsen:

35 - OPINION AND ORDER

First, Olsen interprets Oregon Supreme Court precedent
in this area in a manner that the [Oregon] [S]upreme
[C]ourt itself has not expressly articulated and which
is arguably contrary to that higher court's stillcontrolling holdings on this point. In fact, the
Oregon Supreme Court has never expressly overruled or
even clarified its prior decisions to mean what Olsen
holds. Second, the requirement that clear legislative
intent always be present before a wrongful discharge
claim is precluded — that an adequate statutory remedy
by itself is not enough — necessarily expands the tort
of wrongful discharge into areas where legislation
already has given the claimant an adequate remedy and
the public's interest is protected. Such expansion is
clearly at odds with the tort's original construct, "to
fill a remedial gap where a discharge would be left
unvindicated," Dunwoody v. Handskill Corp., 60 P.3d
1135, 1139 (Or. Ct. App. 2003), and its original
purpose to “serve as a narrow exception to the at-will
employment doctrine in certain limited circumstances
where the courts have determined that the reasons for
the discharge are so contrary to public policy that a
remedy is necessary in order to deter such conduct.”
Draper, 995 F. Supp. at 1129. Put another way, Olsen's
holding at least enlarges the availability of the tort
in ways that the Oregon Supreme Court did not
contemplate when it created the tort and has not
expressly approved since, thus potentially converting
the tort from being a narrow exception to the general
rule to the general rule itself.
2011 WL 1261190, at *3 (quoting Reid v. Evergreen Aviation Ground
Logistics Enter., Inc., Civil No. 07–1641–AC, 2009 WL 136019, at
*15–20 (D. Or. Jan. 20, 2009)).
This Court has previously adopted the reasoning set out
in Duran and continues to do so here.

See, e.g., Findings and

Recommendation of Dennis James Hubel, M.J. (adopted on June 24,
2008, by Brown, J.), James v. Evergreen Intern. Airlines, Inc.,
No. 07-CV-1640-HU, 2008 WL 2564804, at *5 (D. Or. June 23, 2008)
("[The plaintiff] argues that the test used in Draper to
36 - OPINION AND ORDER

determine whether an alternate remedy exists requires a showing
that an alternate adequate remedy exists and that the legislature
intended the remedy to supersede common law remedies.
plaintiff] is incorrect.

[The

The test is a disjunctive one in which

a wrongful termination claim is precluded if the alternate remedy
is adequate or if the legislature intended the remedy to
supersede common law remedies.").

Thus, the Court concludes the

presence of an adequate statutory remedy precludes a claim for
wrongful termination that is based on the same conduct.
On this record the Court concludes Plaintiff's
wrongful-termination claim is precluded to the extent that her
claim is based on the conduct that underlies her claim for
violation of § 659A.199.

The Court, therefore, grants

Defendant's Motion for Summary Judgment as to the portion of
Plaintiff's claim for wrongful termination based on the conduct
that underlies her claim for violation of § 659A.199.
C.

Plaintiff's wrongful-termination claim related to
Oregon Revised Statute § 659A.230.
Defendant contends Plaintiff may not bring a claim for

wrongful termination related to her BOLI report because Oregon
Revised Statute § 659A.230 provides an adequate statutory remedy.
Courts in this district have held § 659A.230 provides
an adequate statutory remedy, which precludes a claim for
wrongful termination.

37 - OPINION AND ORDER

See, e.g., Shapiro, 2013 WL 6157266, at

*5; Franklin, 2011 WL 4024638, at *11 (D. Or. Sept. 9, 2011)
(same); Duran, 2011 WL 1261190, at *4.

The Court adopts the

reasoning of these cases and concludes Plaintiff’s wrongfultermination claim based on her BOLI report is precluded because
§ 659A.230 provides an adequate statutory remedy.
Accordingly, the Court grants Defendant’s Motion for
Summary Judgment as to Plaintiff’s wrongful-termination claim.

CONCLUSION
For these reasons, the Court GRANTS Defendant’s Motion (#87)
for Summary Judgment and DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 1st day of November, 2016.

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

38 - OPINION AND ORDER