Thomas v. Comprehensive Options For Drug Abusers, Inc
Filing
109
Opinion and Order: The Court GRANTS Defendants Motion 71 for Judgment on the Pleadings and DISMISSES Plaintiffs Second and Third Claims to the extent they are based on conduct that occurred before December 2, 2012, and DISMISSES Plaintif fs Fourth Claim on the ground that an adequate statutory remedy exists. The Court DENIES Plaintiffs Motion 72 for Partial Summary Judgment as to Defendants Ninth Affirmative Defense. The Court DIRECTS the parties to submit a Joint Proposed Case Management Schedule no later than July 18, 2016, regarding the claims remaining in this case. Signed on 07/06/2016 by Judge Anna J. Brown. See attached 27 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RANDY J. THOMAS,
Plaintiff,
3:14-cv-01843-BR
OPINION AND ORDER
v.
COMPREHENSIVE OPTIONS FOR DRUG
ABUSERS, INC. dba CODA, INC.,
Defendant.
DANIEL SNYDER
CARL POST
JOHN DAVID BURGESS
Law Offices of Daniel Snyder
1000 S.W. Broadway, Suite 2400
Portland, OR 97205
(503) 241-3617
Attorneys for Plaintiff
ALLYSON S. KRUEGER
SAMUEL T. SMITH
Dunn Carney Allen Higgins & Tongue, LLP
851 S.W. Sixth Ave, Suite 1500
Portland, OR 97204
(503) 224-6440
Attorneys for Defendant
BROWN, Judge.
This matter comes before the Court on Defendant
1 - OPINION AND ORDER
Comprehensive Options for Drug Abusers, Inc. dba CODA, Inc.’s
(CODA) Motion (#71) for Partial Judgment on the Pleadings and
Plaintiff Randy J. Thomas’s Motion (#72) for Partial Summary
Judgment.
Plaintiff brings this action against his former employer for
violation of (1) the Family Medical Leave Act (FMLA), 29 U.S.C.
§ 2601, et seq.; (2) Oregon Family Leave Act (OFLA), Oregon
Revised Statutes § 659A.150, et. seq.; (3) Oregon Rehabilitation
Act (ORA), Oregon Revised Statutes § 659A.103, et seq.; and for
(4) common-law wrongful termination.
For the reasons that follow, the Court GRANTS Defendant’s
Motion for Judgment on the Pleadings and DISMISSES Plaintiff’s
Second and Third Claims to the extent they are based on conduct
that occurred before December 2, 2012, and DISMISSES Plaintiff’s
Fourth Claim on the ground that an adequate statutory remedy
exists.
The Court DENIES Plaintiff’s Motion for Partial Summary
Judgment as to Defendant’s Ninth Affirmative Defense.
BACKGROUND
The following facts are taken from the Joint Statement of
Agreed Facts, Plaintiff’s Second Amended Complaint, and the
parties’ materials submitted with their respective motions and
are undisputed unless otherwise noted.
Plaintiff began work as CODA’s Facilities Manager on
2 - OPINION AND ORDER
April 1, 2011.
On his first day on the job Plaintiff advised
Defendant’s Human Resources Manager, Art Thomas, that he suffered
from macular dystrophy and hand tremors and needed to use visual
aids to read (specifically, ZoomText software, a large monitor,
and camera apparatus).
Later that same day Plaintiff met with
Lisa Nichols, Defendant’s supervisor, and related similar
information to her.
Plaintiff also told Nichols that he had a
history of blood clots and permanent residual leg damage.
He
requested accommodation for these issues by being off of his feet
and elevating his legs.
He also requested all written
communications sent to him have a font of 16 points or larger
because of his vision.
Nichols denied the latter request.
In May 2011 and on subsequent occasions Plaintiff continued
to request accommodation for his visual impairments from
Defendant’s Human Resources Manager, Director of Human Resources,
Assistant to the Executive Director, IT Manager, and Director of
Finance.
In the summer of 2011, in October 2011, and in July 2012
Plaintiff made other requests for accommodation regarding his
balance, coordination, and light-headedness due to his diabetes
and his visual impairment and hand tremors due to fatigue from
his sleep being interrupted by work calls at night that
exacerbated his tiredness from sleep apnea.
denied these requests.
3 - OPINION AND ORDER
Defendant also
In June 2012 Plaintiff experienced other health problems,
which resulted in hospitalization and required medical leave.
On
his return to work Plaintiff requested a shorter or part-time
work schedule as an accommodation for his medical conditions.
Nichols denied his request.
In July and August 2012 Plaintiff again requested
accommodation for his visual impairments.
In October 2012 the
ZoomText software and larger monitor requested by Plaintiff
arrived and were installed after some delay.
Plaintiff was off from work from November 12, 2012, to
November 16, 2012, for medical reasons.
On Wednesday,
November 21, 2012, Plaintiff’s wife picked him up after work
and took him to the emergency room at the direction of his
doctor.
When Plaintiff requested to use Friday, November 23,
2012 (the day after Thanksgiving) as one of his floating
holidays, Nichols denied his request.
Plaintiff was again off
from work from November 26, 2012, to November 30, 2012, due to
the death of his father.
Plaintiff was allowed three days of
bereavement leave, but Defendant denied his request to use
additional floating holidays following the bereavement leave.
Defendant terminated Plaintiff’s employment on December 4,
2012.
Plaintiff filed a complaint with the Oregon Bureau of
Labor and Industries (BOLI) nearly one year later on December 2,
2013.
BOLI issued a right to sue letter for Plaintiff on
4 - OPINION AND ORDER
August 21, 2014.
Plaintiff filed a Complaint in this Court on November 18,
2014.
On February 24, 2016, Defendant filed a Motion (#71) for
Partial Judgment on the Pleadings as to Plaintiff’s Second and
Third Claims on the ground that these claims are barred by the
statute of limitations and Plaintiff’s Fourth Claim (state
common-law claim) on the ground that there is an adequate
statutory remedy.
On February 24, 2016, Plaintiff filed a Motion (#72) for
Partial Summary Judgment as to Defendant’s Ninth Affirmative
Defense that Plaintiff failed to mitigate his damages.
STANDARDS
I.
Judgment on the Pleadings.
Federal Rule of Civil Procedure 12(c) provides:
After the pleadings are closed but within such
time as not to delay the trial, any party may move
for judgment on the pleadings. If, on a motion
for judgment on the pleadings, matters outside the
pleadings are presented to and not excluded by the
court, the motion shall be treated as one for
summary judgment and disposed of as provided in
Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent
to such a motion by Rule 56.
For purposes of a motion pursuant to Rule 12(c), the court
must accept the nonmoving party's allegations as true and view
all inferences in a light most favorable to the nonmoving party.
5 - OPINION AND ORDER
Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).
A
judgment on the pleadings is properly granted when, taking all
allegations in the nonmoving party's pleadings as true, the
moving party is entitled to judgment as a matter of law.
Compton
Unified Sch. Dist. v. Addison, 598 F.3d 1181, 1185 (9th Cir.
2010).
"To survive a Rule 12(c) motion, the complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face."
Davis v. Astrue,
Nos. C–06–6108 EMC, C–09–0980 EMC, 2011 WL 3651064, at *1 (N.D.
Cal. Aug. 18, 2011)(citation omitted).
See also Cafasso v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011)(A
Rule 12(c) motion is “functionally identical to a Rule 12(b)(6)
motion to dismiss for failure to state a claim, and therefore the
same legal standard applies.").
II.
Summary Judgment
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
6 - OPINION AND ORDER
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
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).
7 - OPINION AND ORDER
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
I.
Defendant’s Motion for Partial Judgment on the Pleadings
Defendant seeks partial judgment pursuant to Federal Rule of
Civil Procedure 12(c) on the ground that Plaintiff’s Second and
Third Claims are barred by the statute of limitations and
Plaintiff’s Fourth Claim is barred on the ground that Plaintiff
has an adequate statutory remedy.
Plaintiff contends Defendant’s Motion should be construed as
a motion for summary judgment pursuant to Federal Rule of Civil
Procedure 56 because (1) Plaintiff presents evidence outside of
the pleadings in his Response to Defendant’s Motion,
(2) Plaintiff asserts the “continuing harm doctrine” applies, and
(3) Oregon statutes do not provide Plaintiff with a sufficient
statutory remedy as to his Fourth Claim.
As noted, Federal Rule of Civil Procedure 12(c) allows a
party to move for judgment on the pleadings “after the pleadings
are closed.”
If a party, in opposition to a motion under Rule
12(c), presents “matters outside the pleadings” that are “not
8 - OPINION AND ORDER
excluded by the court,” the motion may be treated as one for
summary judgment under Rule 56.
Although Plaintiff submits his own lengthy Declaration with
his Response to Defendant’s Motion, the Court finds this
Declaration does not add any substance to the analysis of the
issues.
The Court, therefore, does not consider Plaintiff’s
Declaration and, accordingly, declines to construe Defendant’s
Motion for Partial Judgment on the Pleadings as a motion for
summary judgment.
A.
Statute of Limitations
Under Oregon Revised Statute § 659A.875(1) a claim must be
brought “within one year after the occurrence of the unlawful
employment practice unless a complaint has been timely filed
under ORS 659A.820.”
A BOLI complaint also must be filed “no
later than one year after the alleged unlawful practice.”
Or. Rev. Stat. § 659A.820(2).
Plaintiff’s employment with Defendant was terminated on
December 4, 2012, but Plaintiff did not file his BOLI complaint
until December 2, 2013.
Defendant argues the unlawful employment
practices alleged by Plaintiff in his Second and Third Claims are
based on conduct that occurred before December 2, 2012, and,
therefore, his Second and Third Claims are barred by the one-year
statute of limitations.
In his Response Plaintiff “agrees that much of CODA’s
9 - OPINION AND ORDER
unlawful employment practices occurred more than a year prior to
filing his BOLI complaint.”
Resp. at 30.
Plaintiff, however,
argues he is entitled to pursue his claims because
(1) Defendant’s unlawful practices were “continuing in nature,”
(2) Defendant created a “hostile work environment,” and
(3) Defendant is estopped from asserting the statute of
limitations because Defendant tacitly approved Plaintiff’s
requested accommodations but failed to provide Plaintiff with
those accommodations within a reasonable time.
1.
Continuing Violations Doctrine
Oregon Administrative Rule 839-003-0025(6) provides:
A complaint must be filed with the division no
later than one year after the alleged unlawful
practice occurred. If the alleged unlawful
practice is of a continuing nature, the right to
file a complaint exists so long as the person
files the complaint within one year of the most
recent date the unlawful practice occurred.
Emphasis added.
The Oregon Supreme Court has not ruled on what
constitutes unlawful practices “of a continuing nature.”
In National Railroad Passenger Corp. v. Morgan the
Supreme Court substantially limited the continuing violations
doctrine in the context of federal employment-discrimination
actions.
536 U.S. 101 (2002).
with the EEOC
his employer
1964.
In Morgan the plaintiff filed
charges of discrimination and retaliation against
pursuant to Title VII of the Civil Rights Act of
The plaintiff alleged he was “consistently harassed and
10 - OPINION AND ORDER
disciplined more harshly than other employees on account of his
race.”
The EEOC issued a “Notice of Right to Sue,” and Morgan
filed his action.
The district court granted summary judgment in
favor of the employer on the ground that all of the incidents
alleged by the plaintiff fell outside of the statutory period,
and, therefore, the company could not be liable for that conduct.
The Ninth Circuit reversed the district court based on its
earlier articulation of the continuing violation doctrine that
courts may consider conduct that would ordinarily be time barred
“as long as the untimely incidents represent an ongoing unlawful
employment practice.”
Id. at 106-07.
On appeal the Supreme
Court reversed the Ninth Circuit and held:
[D]iscrete discriminatory acts are not actionable if
time barred, even when they are related to acts alleged
in timely filed charges. Each discrete discriminatory
act starts a new clock for filing charges alleging that
act. The charge, therefore, must be filed within the
[statutory] time period after the discrete
discriminatory act occurred. The existence of past
acts and the employee's prior knowledge of their
occurrence, however, does not bar employees from filing
charges about related discrete acts so long as the acts
are independently discriminatory and charges addressing
those acts are themselves timely filed.
Id. at 113.
To illustrate the meaning of the term “discrete
discriminatory act,” the Court provided the following examples:
“termination, failure to promote, denial of transfer, or refusal
to hire.”
Id. at 122.
In Cherosky v. Henderson the Ninth Circuit applied the
11 - OPINION AND ORDER
principles of continuing violation set out in Morgan to claims
asserted by the plaintiffs under the Americans with Disabilities
Act.
330 F.3d 1243 (2003).
Although Morgan involved Title VII,
the Ninth Circuit found the Supreme Court’s analysis of the
continuing violations doctrine was not limited to Title VII
actions and that the doctrine applied with equal force to the
Rehabilitation Act and to actions arising under other civil
rights laws.
In Cherosky the plaintiffs were employees of the
United State Postal Service.
They contended they began having
respiratory problems after the introduction of high-speed mailsorting machines into the workplace.
Each employee requested
permission to use a full-face respirator while working.
The
Postal Service denied the request pursuant to a policy
prohibiting respirators except when air contaminants exceeded
safety regulations.
The Ninth Circuit concluded denial of the
plaintiffs’ requests for accommodation, even though the denial
was pursuant to an ongoing company policy, constituted a discrete
discriminatory act.
Id. at 1246.
Here, however, Plaintiff argues Oregon’s continuing
harm doctrine is broader than the federal standard set out in
Morgan and followed in Cherosky.
In particular, Plaintiff
contends Oregon law reflects “an expansive definition” of what
constitutes a continuing unlawful practice.
The Court notes,
however, the authority on which Plaintiff relies pre-dates 2002
12 - OPINION AND ORDER
when Morgan was decided.
See In the Matter of Kenneth Williams,
1995 WL 17921481 (Or. BOLI, Feb. 23, 1995).
In any event, in 2014 in the case of In the Matter of
Maltby Biocontrol, Inc., an Oregon Administrative Law Judge
specifically reviewed the “continuing violations” standard of
Morgan and “adopted [that] standard.”1
BOLI, Apr. 22, 2014).
2014 WL 7004598 (Or.
In Maltby BOLI contended the employer
allegedly subjected certain employees to a hostile work
environment created by racial epithets and physical assaults of
fellow employees.
barred.
The employer argued the claims were time-
BOLI, however, relied on a continuing violation theory
to support its argument that the claim was timely.
In adopting
the standard enunciated in Morgan, the Administrative Law Judge
concluded claims involving “discrete acts” of discrimination that
are brought under Oregon Revised Statute § 659A.820, et seq., are
only timely if such acts occurred within the statute-oflimitations period.
The Administrative Law Judge concluded in
this instance the claims constituted a continuing violation, and,
therefore, found the claims were timely.
Other judges in this District have also applied Morgan
to discrimination claims brought under Oregon law.
1
See, e.g.,
In fact, the Administrative Law Judge in adopting the
Morgan standard pointed out neither the Oregon statute (Or. Rev.
Stat. § 659A.820(2)) nor the administrative rule (Or. Admin. R.
839-003-0031) provided any guidance as to liability when the
“alleged unlawful practice is of a continuing nature.”
13 - OPINION AND ORDER
Chitwood v. Georgia-Pac. Corp., No. 6:05-cv-6057-HO, 2006
WL2054444, at *4 (D. Or. July 20, 2006)(holding Morgan applies to
claims under Oregon law and stating "the continuing violations
theory does not apply to discrete discriminatory acts, even when
they are related to acts alleged in timely filed charges.
Each
discrete discriminatory act starts a new clock for filing charges
alleging that act."); Scruggs V. Josephine Cty. Sheriffs Dep't,
No. 1:06-cv-6058-CL, 2008 WL 608581, at *13 (D. Or. Mar. 4, 2008)
("A complaint based on alleged unlawful employment practice under
state law must be brought within one year, supra ORS 659A.820,
659A.875.
As discussed above, under Morgan, the continuing
violation doctrine does not apply to discrete acts of
retaliation, and the alleged retaliatory actions will be time
barred if not brought within the limitations period.").
Here, when Plaintiff began his employment with
Defendant, he advised Defendant regarding his physical
limitations.
Defendant denied specific request for written
communications to be in 16-font text.
Defendant also denied a
later request for schedule adjustment to deal with Plaintiff’s
sleep issues.
Defendant also denied requests for the use of
medical and family leave.
The Court concludes these are a series of “discrete,”
allegedly discriminatory acts by Defendant related to Plaintiff’s
requests for accommodation for his visual limitations and the use
14 - OPINION AND ORDER
of medical and family leave, and each discrete act give rise to a
claim of unlawful employment practice.
State-law claims arising
from these discrete acts, therefore, must be brought within the
limitations period pursuant to Morgan.
2. Hostile Work Environment
Plaintiff argues he has stated a prima facie case of
hostile work environment based on Defendant’s ongoing failure to
accommodate his disabilities.
Plaintiff, however, does not
identify any specific allegation(s) in his Complaint that support
such a claim.
The Morgan Court distinguished hostile work environment
claims as “different in kind from discrete acts.”
115.
536 U.S. at
The Court noted when determining whether an actionable
hostile work environment claim exists, “we look to all the
circumstances, including the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.”
Id., at 116 (internal quotes and citations omitted).
As the
Ninth Circuit noted in Cherosky, “[t]he Supreme Court has made
clear . . . that the application of the continuing violations
doctrine should be the exception, rather than the rule.
not free to depart from this directive.”
330 F.3d at 1248.
On this record the Court concludes Plaintiff’s
15 - OPINION AND ORDER
We are
allegations in his Complaint do not satisfy the criteria required
by Morgan to establish that a hostile work environment existed,
and, therefore, Plaintiff cannot obtain relief for conduct that
occurred outside of the statute-of-limitations period.
3. Estoppel
Finally, Plaintiff argues Defendant is estopped from
asserting Plaintiff’s claims are barred by the statute of
limitations because Defendant “never actually provided the
accommodation in such a manner that Thomas could use it.”
Resp. at 36.
The doctrine of equitable estoppel applies when the
employee knows he has a claim, but the employer affirmatively and
actively takes action that causes the employee not to file his
lawsuit timely.
Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176
(9th Cir. 2000).
A finding of equitable estoppel rests on the
consideration of a nonexhaustive list of factors, including:
(1) the plaintiff’s actual and reasonable reliance on the
defendant’s conduct or representations, (2) evidence of improper
purpose on the part of the defendant, and (3) the extent to which
the purposes of the limitations period have been satisfied.
Id.
(citing Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir.
1981)).
Here Plaintiff does not allege any affirmative actions
by Defendant that show Plaintiff was induced not to file his
16 - OPINION AND ORDER
claims timely.
Plaintiff only alleges in his Complaint that
Defendant refused his requests for accommodation or denied his
requests to use medical and family leave.
Moreover, Defendant
ultimately granted Plaintiff’s requests for accommodation by
eventually providing specific equipment for his visual
impairments.
As noted, the Court has concluded each act alleged by
Plaintiff in his Second and Third Claims, with the exception of
his actual termination, was a discrete act that occurred more
than one year before the filing of Plaintiff’s Complaint, and,
therefore, those claims are barred by the statute of
limitations.2
In summary, on this record the Court grants Defendant’s
Motion for Judgment on the Pleadings and dismisses Plaintiff’s
Second and Third Claims to the extent that they are based on
conduct that occurred before December 2, 2012.
B.
Adequate Statutory Remedy
In his Third Claim Plaintiff alleges Defendant wrongfully
terminated him in violation of the Oregon Rehabilitation Act
2
In his Response Plaintiff argues if the Court finds
Defendant’s conduct was not a “continuing violation,” Plaintiff
should be allowed to present evidence of acts that occurred
before December 2, 2012, as support for his timely-asserted
claims. The Court concludes this is an evidentiary issue that
should be raised in the parties' pretrial filings and resolved at
the time of the pre-trial conference, and, therefore, it will not
be addressed at this time.
17 - OPINION AND ORDER
(ORA), Oregon Revised Statutes § 659A.103, et seq., and in his
Fourth Claim Plaintiff alleges Defendant wrongfully terminated
him in violation of Oregon common law.
Defendant moves for partial judgment on the pleadings
against Plaintiff’s Fourth Claim for wrongful termination on the
ground that an adequate statutory remedy for wrongful termination
exists under Plaintiff’s Third Claim pursuant to ORA.
Plaintiff fails to respond to Defendant’s assertion that ORA
provides Plaintiff with an adequate remedy and inexplicably
contends “OFLA is not a[n] adequate remedy,” and, therefore, he
is “entitled to bring a claim for wrongful discharge as well
under OFLA.”
Under Oregon law a common-law wrongful-discharge claim is
precluded when a statute provides an adequate remedy.
Anderson
v. Evergreen Int'l Airlines, Inc., 131 Or. App. 726, 734 (1994)
(“availability of an adequate statutory remedy precludes an
otherwise sufficient common law wrongful discharge claim.”).
The
Oregon Supreme Court has not specifically ruled as to whether ORA
provides an adequate statutory remedy.
As Defendant notes in its
Motion, however, judges in this District have concluded the
remedies provided under state statutes are adequate and preclude
a common-law wrongful-discharge claim when both claims are based
on the same conduct.
See, e.g., Bellingham v. Harry & David Ops.
Corp., No. CV–07–3033–PA, 2008 WL 339411, at *5 (D. Or. Feb.5,
18 - OPINION AND ORDER
2008)(granting summary judgment to defendant on plaintiff's
wrongful-discharge claim because Oregon disability statutes
provided an adequate statutory remedy); Bailey v. Reynolds Metals
Co., No. CV–99–1418–HA, 2000 WL 33201900, at *2 (D. Or. Sept.11,
2000)(concluding Oregon's disability statutes preempted a claim
for wrongful discharge because the remedies provided by the
legislature are adequate).
The remedies provided under Oregon's statutory disability
discrimination laws include economic, noneconomic, and punitive
damages and attorneys’ fees.
Or. Rev. Stat. § 659A.885
(providing for injunctive relief, other appropriate equitable
relief, back pay, costs and attorneys’ fees, compensatory
damages, punitive damages, and a jury trial in actions alleging a
violation of unlawful employment practices also under Or. Rev.
Stat. § 659A.103).
On this record the Court concludes ORA provides an adequate
statutory remedy for Plaintiff’s Fourth Claim for wrongful
termination, and, therefore, the Court dismisses Plaintiff’s
Fourth Claim.
II.
Plaintiff’s Motion for Partial Summary Judgment
Plaintiff moves for partial summary judgment as to
Defendant’s Ninth Affirmative Defense that Plaintiff failed to
mitigate his damages by not maintaining subsequent employment.
Plaintiff argues his termination from his subsequent position
19 - OPINION AND ORDER
with the City of Portland does not constitute a failure to
mitigate his damages because he did not leave voluntarily and he
was not terminated due to any misconduct.
Defendant contends summary judgment in favor of Plaintiff is
precluded because there is a genuine dispute of material fact
regarding the basis for Plaintiff’s termination from his
subsequent position with the City of Portland.
A.
Relevant Facts
The parties filed a Joint Statement of Agreed Facts (#70) as
follows:
•
On December 3, 2012, CODA prepared a Personnel
Action Form for involuntary termination of
Plaintiff’s employment effective December 4, 2012.
•
On March 22, 2103, Thomas applied for the position
of Central Services Manager in the City of
Portland’s Bureau of Parks and Recreation.
•
On May 28, 2013, Thomas began working for the City
of Portland as Parks and Recreation Central
Services Manager.
•
On September 25, 2013, Kia Selley informed Thomas
she was terminating his probationary employment
with Parks and Recreation and provided him with a
termination letter.
Evidence submitted by Plaintiff indicates his job at the Bureau
of Parks and Recreation was subject to a nine-month probationary
period.
The letter terminating Plaintiff’s employment with the
Bureau stated in part:
Effective today, your probationary period has been
terminated with the City of Portland as the Parks &
Recreation Central Service Manager. . . . Although as a
20 - OPINION AND ORDER
probationary employee you may be terminated without a
statement of cause, the reason for this action is a
failure to meet bureau expectations regarding
accountability, communication and accessibility as well
as necessary management skills and abilities. As a
result of my review of your probation work history, I
have concluded that termination of your probationary
period is justified.
I regret that this position was not the right fit for
your skills and abilities and sincerely wish you the
best in your future endeavors.
Decl. of Randy Thomas (#74), Ex. D.
B.
Mitigation of Damages
In his Complaint Plaintiff seeks back pay, among other
things.
When an employee seeks an award of back pay, the
employee has an affirmative duty to mitigate damages by
exercising reasonable efforts to find other suitable employment.
Ford Motor Co. v. EEOC, 458 U.S. 219, 231 n.15 (1982).
Failure
to mitigate damages is an affirmative defense that shifts the
burden to the former employer to prove the plaintiff failed to
use reasonable efforts to find and to secure subsequent
employment.
Haeuser v. Dep’t of Law, 368 F.3d 1091, 1099-1100
(9th Cir. 2004).
In Sangster v. United Airlines, Inc., the Ninth Circuit
noted courts have long held back pay is not to be awarded when
the evidence shows “willful loss of earnings.”
Cir. 1980).
633 F.2d 864 (9th
From this general concept the Ninth Circuit set out
specific acts that constitute such willful conduct:
failure to
remain in the labor market, refusal to accept substantially
21 - OPINION AND ORDER
equivalent employment, failure to search for alternative work
diligently, or voluntarily quitting alternative employment
without good reason.
apply in this case.
Id. at 868.
None of those acts, however,
The court in Brady v. Thurston Motor Lines,
Inc., held termination for cause may also constitute a “willful
loss of earnings” and, therefore, constitute a failure to
mitigate.
753 F.2d 1269, 1279 (4th Cir 1985).
In Richardson v.
Tricom Pictures & Prods., 334 F. Supp. 2d 1303 (S.D. Fla. 2004),
the court found a plaintiff’s termination due to “behavior that
was not accidental” but was “egregious” may also constitute a
failure to mitigate.
Id. at 1314.
Here Plaintiff argues his termination from the Bureau was
not for any violation of City policy or for any misconduct.
He
was terminated merely because he was “not a good fit” as
reflected in the City’s termination letter.
As stated in the
letter, however, the City reached this determination by finding
Plaintiff failed to “meet bureau expectations regarding
accountability, communication and accessibility” as well as
posessing a lack of “skills and abilities.”
Although Plaintiff’s
conduct may not have been egregious or willful, Defendant argues
evidence exists showing Plaintiff failed to follow Bureau rules
and to meet the Bureau’s expectations, that he performed his job
duties poorly, and that he failed to cure performance
deficiencies despite opportunities to do so.
22 - OPINION AND ORDER
As noted, the Ninth
Circuit has not specifically identified the circumstances that
constitute a failure to mitigate damages when a plaintiff’s
employment is involuntarily terminated.
In any event, under
these circumstances a jury could reasonably conclude Plaintiff
failed to act in good faith and to make reasonable efforts to
maintain his employment.
Accordingly, on this record the Court concludes a genuine
dispute of material fact exists and, therefore, denies
Plaintiff’s Motion for Partial Summary Judgment.
III.
Evidentiary Objections
Each party raises evidentiary objections to materials
submitted by the other in support of their respective Motions.
Defendant moves to exclude the Oregon Employment
Department’s administrative decision awarding Plaintiff
unemployment benefits following his termination from the City of
Portland.
See Thomas Decl., Ex. E.
Plaintiff, in turn, moves to
exclude the deposition testimony of Kia Selley submitted by
Defendant.
A.
Exhibit E
Defendant argues Exhibit E is inadmissible pursuant to
Oregon Revised Statute § 657.273(2), which provides
administrative decisions awarding unemployment benefits “are not
admissible as evidence in any other civil action or proceeding.”
Plaintiff contends § 657.273 does not apply in a federal
23 - OPINION AND ORDER
court and that Exhibit E is admissible under the Federal Rules of
Evidence as a business record.
In Feldman v. Allstate Ins. Co., the Ninth Circuit stated:
Most evidentiary rules are procedural in nature, and
the Federal Rules of Evidence ordinarily govern in
diversity cases. However the Federal Rules do not
supplant all state evidentiary provisions in federal
ones. Rather, state evidence rules that are intimately
bound up with the state’s substantive decision making
must be given full effect by federal courts sitting in
diversity. Moreover, some state law rules of evidence
in fact serve state policies and are more properly
rules of substantive law within the meaning of Erie.
322 F.3d 660, 666 (9th Cir. 2003)(internal quotation marks and
citations omitted).
See also Wray v. Gregory, 61 F.3d 1414, 1417
(9th Cir. 1995)(federal trial court required to apply special
state evidentiary statute in context of medical malpractice
case).
Absent any authority contradicting the clear language of the
Oregon statute and in light of the holdings in Feldman and Wray,
the Court finds Exhibit E to be inadmissible for purposes of this
Motion.3
B.
Deposition Testimony
Plaintiff argues the deposition excerpts of Kia Selley,
Plaintiff’s supervisor at the City of Portland, is inadmissable
because (1) Selley lacked personal knowledge as required by
3
Defendant raises other grounds to exclude Exhibit E
pursuant to the Federal Rules of Evidence. Inasmuch as the Court
finds Defendant’s first argument persuasive, however, it need not
address those other grounds.
24 - OPINION AND ORDER
Federal Rule of Evidence 602, (2) her statements were hearsay
under Federal Rule of Evidence 801, and (3) her statements that
Plaintiff “lied” reflect on the credibility of Plaintiff.
Defendant responds with supplemental deposition testimony
that allegedly cures the hearsay and lack-of-personal knowledge
objections.
In addition, Defendant asserts Selley’s use of the
words “lie” or “lied” do not constitute a comment on Plaintiff’s
character for untruthfulness, but rather reflect Selley’s beliefs
at the time and served as a factor in the decision to discharge
Plaintiff.
Although a person may not offer an opinion about another
person’s truth-telling ability, it is difficult to draw the line
between an inadmissible statement that is tantamount to a direct
comment on the credibility of a witness and an admissible
statement that is relevant for a different reason but tends also
to reflect on the truthfulness of a witness.
See State v.
Beauvais, 357 Or. 524, 545 (2015)(testimony regarding criteria
used to evaluate whether a child-victim was being deceptive was
admissible to assist jury in the assessing credibility of the
child-victim).
On summary judgment this Court may not weigh the evidence or
determine the truth of the matter.
1170, 1172 (9th Cir. 2015).
France v. Johnson, 795 F.3d
The Court must, however, determine
whether the evidence submitted shows there is a genuine dispute
25 - OPINION AND ORDER
as to any material fact.
See Fed. R. Civ. P. 56(b).
“A party
may object that material cited to support or dispute a fact
cannot be presented in a form that would be admissible in
evidence.”
Fed. R. Civ. P. 56(c)(2).
Thus, at the summary-
judgment stage, a party does not necessarily have to produce
evidence in the form that would be admissible at trial.
Block v.
City of Los Angeles, 253 F.3d 410, 419 (9th Cir. 2001).
The
Court, therefore, finds Selley’s deposition testimony is
admissible for purposes of resolving this Motion even though it
may not necessarily be admissible at trial in its current form.
On this record the Court concludes the excerpt of the
deposition testimony of Kia Selley is admissible for purposes of
this Motion.
CONCLUSION
For these reasons, the Court GRANTS Defendant’s Motion (#71)
for Judgment on the Pleadings and DISMISSES Plaintiff’s Second
and Third Claims to the extent they are based on conduct that
occurred before December 2, 2012, and DISMISSES Plaintiff’s
Fourth Claim on the ground that an adequate statutory remedy
exists.
The Court DENIES Plaintiff’s Motion (#72) for Partial
Summary Judgment as to Defendant’s Ninth Affirmative Defense.
The Court DIRECTS the parties to submit a Joint Proposed
26 - OPINION AND ORDER
Case Management Schedule no later than July 18, 2016, regarding
the claims remaining in this case.
IT IS SO ORDERED.
DATED this 6th day of July, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
27 - OPINION AND ORDER
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