Kwiecinski v. Medi-Tech International Corp.
Filing
64
OPINION AND ORDER: Granting Motion for Summary Judgment 42 . Accordingly, this matter will proceed only as to Plaintiff's claim for failure to pay final wages in violation of Oregon's wage-and-hour laws. See attached 15 page Opinion and Order for full text. Signed on 6/3/2016 by Judge Anna J. Brown. (pg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOSEPH KWIECINSKI,
Plaintiff,
v.
MEDI-TECH INTERNATIONAL
CORP., a Delaware
corporation,
Defendant.
DONALD B. POTTER
Spaulding & Potter LLP
3236 S.W. Kelly Avenue
Suite 101
Portland, OR 97239
(503) 223-2612
Attorneys for Plaintiff
DANIEL J. NICHOLS
Gordon & Rees LLP
121 S.W. Morrision
Suite 1575
Portland, OR 97204
(503) 222-1075
Attorneys for Defendant
1 - OPINION AND ORDER
3:14-CV-01512-BR
OPINION AND ORDER
BROWN, Judge.
This matter comes before the Court on Defendant Medi-Tech
International Corp.'s Motion (#42) for Summary Judgment.
For the
reasons that follow, the Court GRANTS Defendant’s Motion.
BACKGROUND
The following facts are taken from Plaintiff’s Complaint,
the Amended Complaint, and the parties' materials related to
Defendant’s Motion for Summary Judgment.
On July 20, 2012, Plaintiff Joseph Kwiecinski, an Oregon
resident, was hired as a sales representative for Defendant’s
Northwest territory, which includes Oregon, Washington, Alaska,
Montana, and Idaho.
Defendant is a Delaware corporation with its
principal place of business in New York.
On August 20, 2012, Plaintiff began working for Defendant
out of an office in his home in Oregon.
On August 20, 2012,
Plaintiff traveled to the New York City metropolitan area for
training.
On August 22, 2012, Plaintiff was a passenger in a car
driven by a coworker that was rear-ended by a third party.
Plaintiff suffered unspecified injuries.
Plaintiff “quickly”
informed Randy Walsh, Defendant’s Vice President of Sales, about
Plaintiff’s injuries.
Plaintiff, however, did not immediately
seek medical attention because he believed at the time that his
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injuries were not severe.
Over the two days following the accident Plaintiff did not
recover from his injuries and advised his “superiors” that he
needed to see a doctor.
Plaintiff, however, was unable to see a
doctor before his August 24, 2012, flight back to Oregon.
On August 24, 2012, Plaintiff left voice messages for George
Fortunato, Defendant’s President, asking him to call Plaintiff
about events in New York.
Plaintiff testified at deposition that
he wanted to talk to Fortunato about whether Plaintiff should
file a New York workers' compensation claim because Plaintiff had
been advised by “the people [he] had worked for” that Fortunato
had “lots of workmen’s comp . . . and non-workmen’s comp
[experience].”
Pl.’s Depo. at 23.
On August 27, 2012, Fortunato returned Plaintiff’s calls.
At his deposition Plaintiff testified as follows regarding his
conversation with Fortunato:
It wasn't, hey, George, I have to file a workers'
comp, because I'm not even sure I actually knew
totally about it. I mean, the minute we got in an
accident, all these insurance companies are
calling me. New York's the craziest thing ever, I
think. So they are all calling me. I didn't know
what to do. . . . [W]hoever was my boss, said,
hey, ask George [Fortunato], he'll answer the
questions. And that's where we kind of went on a
-- had a little conversation about it.
Pl.’s Depo. at 24.
Plaintiff testified he and Fortunato did not
“talk about the accident itself and whether . . . it was a
workers’ comp claim” nor did Plaintiff ask Fortunato “whether
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. . . this is a [New York] workers’ comp claim.”
Id.
Plaintiff,
however, also testified:
A.
[Fortunato] said, Joe, if you file a workers’
comp claim, I physically can’t pay you any
more.
Q.
I see.
A.
Right.
Q.
Did he explain why?
A.
No. I didn’t -- after that . . . I did not
expand on those questions, and that’s when he
went on to [say] you need to send me all your
bills, I’ll pay your bills; and if you don’t
do that you basically won’t be here anymore.
Pl.’s Depo. at 25.
Meaning he can’t pay you your salary?
The parties do not dispute the content of
Plaintiff’s telephone conversation with Fortunato, but only the
implication of Fortunato’s statements.
According to Plaintiff,
he believed Fortunato was threatening his job if he filed a New
York workers' compensation claim.
Fortunato, however, believed
Plaintiff was only calling him for advice.1
On September 24, 2012, Plaintiff filed a workers'
compensation claim in New York.
Plaintiff described the incident
in his Workers' Compensation Claim Form as follows:
We had just left a customer and were on own [sic]
way for some personal errands. It was my first
1
Defendant asserts Fortunato’s comment was a correct
statement of New York State Workers Compensation law, which
provides “[a]n employer may withhold payments while seeking
review by the [Workers Compensation] Board” when a claim is
expected to be controverted. Jasmine v. Rainbow Grill, 496
N.Y.S. 2d 788, 790 (1985).
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time to NYC and wanted to see the statue of
Liberty. We were not working at the time. . . .
After the accident we went to lunch and the Statue
of Liberty and called it a day. The only reason
we were on that particular road was to get [sic]
the Statue of Liberty.
Pl.’s Depo., Ex. 9.
On September 26 and 27, 2012, Defendant received Plaintiff’s
New York workers' compensation claim.
On October 29, 2012, Walsh telephoned Plaintiff and told him
that his employment was terminated.
On November 1, 2012, Plaintiff received a letter from Walsh
terminating Plaintiff’s employment as of October 29, 2012.
On February 22, 2013, Plaintiff filed a workers'
compensation claim in Oregon.
On March 4, 2013, the New York Workers' Compensation Board
held a hearing on Plaintiff’s claim.
On March 7, 2013, the New York Workers' Compensation Board
issued a Notice of Decision in which it closed the matter and
noted Plaintiff was to “reopen case with counsel.
action is planned by the Board at this time.”
No further
Decl. of Millard
King Roper, Ex. C at 1.
On September 23, 2014, Plaintiff filed an action in this
Court against Defendant alleging claims for workers' compensation
discrimination in violation of Oregon Revised Statute § 659A.040,
failure to pay wages in violation of Oregon’s wage-and-hour laws,
and failure to pay final wages in violation of Oregon’s wage-and5 - OPINION AND ORDER
hour laws.
On December 15, 2014, before Defendant filed an Answer,
Plaintiff filed an Amended Complaint in which he alleged claims
for workers' compensation discrimination in violation of Oregon
Revised Statute § 659A.040 and failure to pay final wages in
violation of Oregon’s wage-and-hour laws.
On December 29, 2014, Defendant filed a Motion to Dismiss
Amended Complaint for lack of personal jurisdiction and/or on the
ground that venue was not proper in Oregon.
On April 17, 2015,
the Court heard oral argument on Defendant’s Motion.
At oral
argument Plaintiff voluntarily dismissed his claim against
Defendant for failure to pay final wages in violation of Oregon’s
wage-and-hour laws, the Court denied Defendant’s Motion to
Dismiss for lack of personal jurisdiction, and the Court directed
the parties to file simultaneous briefs on the Motion to Dismiss
the remaining claim for workers' compensation discrimination on
the basis of improper venue.
On April 27, 2015, the parties filed supplemental briefs.
On June 25, 2015, the Court issued an Opinion and Order in
which it denied Defendant’s Motion to Dismiss the remaining claim
for workers' compensation discrimination.
On August 28, 2015, Plaintiff filed a Second Amended
Complaint against Defendant alleging claims for workers'
compensation discrimination in violation of Oregon Revised
6 - OPINION AND ORDER
Statute § 659A.040 and wrongful discharge and reviving his claim
for failure to pay final wages in violation of Oregon’s wage-andhour laws.
On February 12, 2016, Defendant filed a Motion for Summary
Judgment in which it seeks summary judgment as to Plaintiff’s
claims for workers' compensation discrimination in violation of
§ 659A.040 and wrongful discharge.
STANDARDS
Summary judgment is appropriate when “there is no genuine
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
7 - OPINION AND ORDER
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
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.
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Id.
DISCUSSION
As noted, Defendant moves for summary judgment as to
Plaintiff’s claims for workers' compensation discrimination in
violation of § 659A.040 and wrongful discharge.
I.
Plaintiff’s Claim for Workers' Compensation Discrimination
In his claim for workers' compensation discrimination
Plaintiff alleges Defendant violated § 659A.040 when it
“terminat[ed] Plaintiff from employment on October 29, 2012 in
substantial part because Plaintiff filed a workers' compensation
claim and otherwise invoked the workers' compensation system.”
Second Am. Compl. at ¶ 16.
Defendant moves for summary judgment on this claim based on
the fact that Plaintiff, at the time of his termination, had only
applied for or invoked the benefits of the New York workers'
compensation system and § 659A.040 protects only employees who
apply for or invoke the benefits of the Oregon workers'
compensation system.
Plaintiff, however, asserts § 659A.040 is
intended to protect Oregon workers who invoke or apply for the
benefits from the workers' compensation system of any state.
Plaintiff’s argument, however, is not well-taken.
Oregon Revised Statute § 659A.040(1) provides in pertinent
part:
It is an unlawful employment practice for an
employer to discriminate against a worker with
respect to hire or tenure or any term or condition
of employment because the worker has applied for
9 - OPINION AND ORDER
benefits or invoked or utilized the procedures
provided for in ORS chapter 656.
Courts have interpreted § 659A.040 to protect only workers who
apply for, invoke, or utilize the procedures of the Oregon
workers' compensation system.
See, e.g., Jenkins v. Vestas-
American Wind Tech., Inc., No. 3:12–cv–01758–AA, 2014 WL
136497149, at *5 (D. Or. Apr. 4, 2014)(“Oregon's workers'
compensation statute, Or. Rev. Stat. § 659A.040(1), only protects
employees who apply for benefits under Oregon law.”); Anderson v.
Hibu, Inc., 26 F. Supp. 3d 1019, 1025 (D. Or. 2014)(“O.R.S.
§ 659A.040(1), like O.R.S. § 659A.109, prohibits ‘discrimination’
with ‘respect to hire or tenure or condition of employment
because’ a person has applied for benefits or invoked Oregon
statutory procedures.”).
The Court finds the reasoning of
Jenkins and Anderson to be well- supported by the language of
§ 659A.040 as well as § 659A as a whole and adopts that
reasoning.
At the time of Plaintiff’s discharge he had applied for
and/or invoked only the benefits of the New York workers'
compensation system.
The Court, therefore, concludes Plaintiff
has not established Defendant violated § 659A.040.
Accordingly, the Court grants Defendant’s Motion for Summary
Judgment as to Plaintiff’s claim for workers' compensation
discrimination in violation of § 659A.040.
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II.
Plaintiff’s Claim for Wrongful Discharge
In his claim for wrongful discharge Plaintiff alleges
Defendant wrongfully discharged him in substantial part for
invoking or “otherwise taking action in pursuit of” a workers'
compensation claim.
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.
See 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 right of important public interest and (2) discharge for
complying with a public duty.
B.
Analysis
Defendant seeks summary judgment on Plaintiff’s claim
for wrongful discharge on the ground that Plaintiff has an
11 - OPINION AND ORDER
adequate statutory remedy.
As noted, Plaintiff did not file or otherwise take any
action in pursuit of his Oregon workers' compensation claim until
after he was terminated.
Plaintiff’s claim for wrongful
discharge, therefore, involves his discharge allegedly for
invoking the New York workers' compensation system.
Plaintiff
asserts if this Court concludes Plaintiff has not established a
violation of Oregon Revised Statute § 659A.040, he does not have
an adequate statutory remedy and, therefore, may bring a claim
for wrongful discharge.
Plaintiff also asserts the Court may
consider only whether Plaintiff has an adequate remedy under
Oregon statutes when deciding whether Plaintiff can bring a claim
for wrongful discharge.
Defendant, however, asserts New York
provides an adequate remedy for Defendant’s alleged wrongful
termination of Plaintiff based on Plaintiff invoking the New York
workers' compensation system.
In Jenkins the plaintiff sustained a knee injury and filed a
workers' compensation claim in Texas where he resided.
The
defendant terminated the plaintiff’s employment after he filed
his Texas workers' compensation claim.
The plaintiff then filed
an action in the United States District Court for the District of
Oregon in which he alleged, among other things, a claim for
wrongful discharge in violation of Oregon common law.
1364971, at *1.
2014 WL
The defendant moved for summary judgment as to
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the plaintiff’s wrongful-discharge claim on the ground that the
plaintiff had an adequate statutory remedy under Texas statutes
and, therefore, could not bring a claim for wrongful discharge
under Oregon law.
Specifically, the plaintiff asserted “Oregon's
public policy, as announced in Ness [v. Hocks, 272 Or. 210
(1975)], protects [him] from termination because he sought to
access workers compensation benefits [under Texas law] for an
injury he suffered while working for [defendant].”
Id., at *5.
According to the plaintiff, therefore, he could bring an Oregon
common-law claim for wrongful discharge.
Chief Judge Ann Aiken
acknowledged “Oregon's workers’ compensation statute, Or. Rev.
Stat. § 659A.040(1), only protects employees who apply for
benefits under Oregon law” and noted the plaintiff in Jenkins
applied for workers' compensation benefits in Texas.
Id.
Chief
Judge Aiken also noted
an adequate statutory remedy need not be found
within the forum state's statutory scheme. See,
e.g., Walsh, 278 Or. at 351–53 (Oregon common law
wrongful discharge claim preempted because an
adequate statutory remedy existed under federal
law); Reid v. Evergreen Aviation Ground Logistics
Enters. Inc., 2009 WL 136019, *21 (D. Or. Jan. 20,
2009) (same).
Here, an adequate statutory remedy exists under
Texas statute. . . . Texas, like Oregon,
prohibits an employer from discharging an employee
because that employee has filed a workers'
compensation claim. See Tex. Lab. Code § 451.001.
A person who is discharged in violation of Tex.
Lab. Code § 451.001 can seek “reasonable damages”
incurred as a result of the violation and
“reinstatement in the former position of
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employment.” Tex. Lab. Code § 451.002. These
damages are nearly identical to those available
under Oregon's workers' compensation statute,
which has been held to preclude Oregon common law
wrongful discharge claims. Compare id., with Or.
Rev. Stat. §§ 659A.040, 659A.885; see also Whitley
v. City of Portland, 654 F. Supp.2d 1194, 1224–25
(D. Or. 2009).
Chief Judge Aiken, therefore, concluded the plaintiff could not
bring a common-law wrongful-discharge claim in Oregon.
Similarly, New York prohibits terminating a worker for
invoking the New York workers' compensation statute.
Specifically, New York State Workers' Compensation Law § 120
provides in relevant part:
“It shall be unlawful for any
employer . . . to discharge . . . an employee . . . because such
employee has claimed or attempted to claim compensation from such
employer, or claimed or attempted to claim any benefits provided
under this chapter.”
Under New York statutes an employee who is
discharged in violation of § 120 may seek damages for “any loss
of compensation arising out of such discrimination together with
such fees or allowances for services rendered by an attorney” and
“shall be restored to employment or otherwise restored to the
position or privileges he or she would have had but for the
discrimination.”
These damages and equitable relief are nearly
identical to those available under the workers' compensation
statute of Oregon, which courts have held is an adequate
statutory remedy precluding common-law wrongful-discharge claims.
See Or. Rev. Stat. § 659A.885 and Whitley v. City of Portland,
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654 F. Supp.2d 1194, 1224-25 (D. Or. 2009).
The Court, therefore, concludes Plaintiff’s wrongfuldischarge claim is precluded because Plaintiff has an adequate
statutory remedy for his alleged wrongful termination for
invoking the New York workers' compensation provisions.
Accordingly, the Court grants Defendant’s Motion for Summary
Judgment as to Plaintiff’s claim for wrongful discharge.
CONCLUSION
For these reasons, the Court GRANTS Defendant’s Motion (#42)
for Summary Judgment.
Accordingly, this matter will proceed only
as to Plaintiff’s claim for failure to pay final wages in
violation of Oregon’s wage-and-hour laws.
The Court DIRECTS the parties to file no later than June 10,
2016, a Joint Statement advising the Court whether they are ready
to proceed to trial on the existing trial schedule as follows:
Pretrial Order and Verdict form:
Pretrial Documents:
Pretrial Conference:
3-day Jury Trial:
July 29, 2016
August 12, 2016
August 26, 2016
August 30, 2016.
IT IS SO ORDERED.
DATED this 3rd day of June, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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