Kwiecinski v. Medi-Tech International Corp.
Filing
66
AMENDED Opinion and Order. The Court GRANTS Defendants Motion 42 for Summary Judgment and DISMISSES this matter with prejudice. Signed on 06/06/2016 by Judge Anna J. Brown. See attached 16 page Amended Opinion and Order for full text. (bb)
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 - AMENDED OPINION AND ORDER
3:14-CV-01512-BR
AMENDED 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 and
DISMISSES this matter with prejudice.1
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
1
On June 3, 2016, the Court issued an Opinion and Order
(#64) in which it erroneously noted Plaintiff had a remaining
claim for failure to pay final wages and that this matter would
proceed on that claim. The Court issues this Amended Opinion and
Order to correct the error.
2 - AMENDED OPINION AND ORDER
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
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
3 - AMENDED OPINION AND ORDER
what to do. . .
hey, ask George
questions. And
-- had a little
Pl.’s Depo. at 24.
. [W]hoever
[Fortunato],
that's where
conversation
was my boss, said,
he'll answer the
we kind of went on a
about it.
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
. . . 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. Meaning he can’t pay you your salary?
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.
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
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only calling him for advice.2
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
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
2
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).
5 - AMENDED OPINION AND ORDER
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-andhour 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
6 - AMENDED OPINION AND ORDER
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
Statute § 659A.040 and wrongful discharge and reviving his claim
for failure to pay final wages in violation of Oregon’s wageand-hour laws.
On January 29, 2016, the parties filed a Joint Concise
Statement of Agreed Material Facts in which Plaintiff again
withdrew his claim for failure to pay final wages in violation of
Oregon’s wage-and-hour laws.
On February 12, 2016, Defendant filed a Motion for Summary
Judgment in which it seeks summary judgment as to Plaintiff’s
remaining claims for workers' compensation discrimination in
violation of § 659A.040 and wrongful discharge.
STANDARDS
Summary judgment is appropriate when “there is no genuine
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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).
See also Fed. R.
Civ. P. 56(a). 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. Sluimer
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
"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
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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
As noted, Defendant moves for summary judgment as to
Plaintiff’s remaining 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.”
9 - AMENDED OPINION AND ORDER
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
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’
10 - AMENDED OPINION AND ORDER
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.
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. Dew v. City of Scappoose, 208 Or. App. 121, 140 (2006).
11 - AMENDED OPINION AND ORDER
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
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
12 - AMENDED OPINION AND ORDER
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.
2014 WL 1364971, at *1.
The defendant moved for summary judgment
as to 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
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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 commonlaw 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'
ompensation claim. See Tex. Lab. Code § 451.001.
A person who is discharged in violation of Tex.
ab. Code § 451.001 can seek “reasonable damages”
incurred as a result of the violation and
“reinstatement in the former position of
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
14 - AMENDED OPINION AND ORDER
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,
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)
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for Summary Judgment and DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 6th day of June, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
16 - AMENDED OPINION AND ORDER
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