Varese v. Clatsop Behavioral Healthcare et al

Filing 66

OPINION AND ORDER: Defendant's motion for summary judgment 42 is GRANTED in part, as to plaintiff's FMLA claim and as to the six claims on which plaintiff concedes defendants are entitled to summary judgment. I decline to exercise supplemental jurisdiction over the remaining state law claims and dismiss them without prejudice. The parties' request for oral argument is denied as unnecessary. Signed on 3/27/2018 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

CHERYL VARESE, an individual,

Case No. 3: I 6-cv-00738-AA
OPINION AND ORDER

Plaintiff,
vs.
CLATSOP BEHAVIORAL HEALTHCARE,
SUMUER WATKINS and NICK BENAS,
Defendants.

AIKEN, Judge:
Plaintiff Cheryl Varese brings this wrongful termination and retaliation action against her
former employer and supervisors, alleging defendants violated provisions of the Family Medical
Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.; the Oregon Family Leave Act ("OFLA"), Or.
Rev. Stat. § 659A.183; Oregon's whistleblower retaliation statute, id. §§ 659A.199 and

Page I - OPINION AND ORDER

659A.230; and Oregon's employment discrimination statute, id. § 659A.030. 1 Before me is
defendants' motion for summary judgment. For the reasons set foiih herein, defendant's motion
is granted in part, as to plaintiffs FMLA claim only.

I decline to exercise supplemental

jurisdiction over plaintiffs state law claims and dismisses those claims without prejudice.

BACKGROUND
Defendant Clatsop Behavioral Healthcare ("CBH") is a mental healthcare agency located
in Clatsop County, Oregon. In May 2013, plaintiff was hired as the Program Director ofCBH's
Developmental Disability ("DD") Program.

Plaintiffs supervisors at CBH were defendants

Sumuer Watkins and Nick Benas, who served as CBH's Executive Director and Director of
Business Operations, respectively. In 2014, plaintiff received a yearly performance evaluation in
which her evaluator found she met expectations in every category of assessment. Also in 2014,
plaintiff requested sexual harassment training to address the behavior of one subordinate staff
member.

Aside from that isolated request, neither party reports any workplace issues or

personnel challenges prior to 2015.
In April 2015, a series of events caused tensions to rise between the pmiies. On April 22,
2015, a CBH employee, who was plaintiffs housemate, resigned after allegedly being sexually
harassed by a CBH co-worker for several months. Later that same day, another CBH employee,
with whom plaintiff associated, was terminated after attempting to intervene on behalf of the
employee who had resigned. The two foimer CBH employees subsequently filed administrative
and legal complaints for employment-related claims, including discrimination complaints.
Plaintiff later informed defendants Watkins and Benas that she was friends with those and other
former CBH employees.
1

Plaintiff has conceded summary judgment as to the additional claims pied in her
original complaint. Pl.'s Resp. Opp. Defs.' Mot. Summ. J. 42 n. 14 (doc. 61) ("Pl.'s Resp.").
Page 2 - OPINION AND ORDER

In late April 2015, plaintiff called the Council Representative for the Union which
represents non-management CBH employees. 2

Plaintiff neither concedes nor denies the

occurrence and content of the phone call to the Union Council Representative; none of the
documents filed by plaintiff address this call. 3 According to the Union Council Representative,
plaintiff called and explained that CBH employees were upset with executive leadership and
further "stated that it would be 'very smart' for the Union to take a no-confidence vote" against
Watkins and Benas. Simpson Deel.

iI 7. Plaintiff allegedly expressed her understanding that

such a vote would result in the removal ofBenas and Watkins from their executive positions.
Defendants also allege that on May 13, 2015, plaintiff spoke with the Union Chapter
Chair and similarly requested a no-confidence vote against Watkins and Benas. Again, plaintiff
neither concedes nor denies that any such conversation took place. 4 The Union Chapter Chair
contacted the Union Council Representative to express concern regarding plaintiffs request,
which the Chapter Chair felt was "inappropriate." Louder Deel.

if 6; Simpson Deel. iI 9.

Thereafter, the Union Council Representative contacted Watkins to inform her about plaintiffs

2

As management and executive personnel at CBH, respectively, plaintiff, Watkins, and
Benas were not members of the union.
3

The independent investigator hired by CBH in July 2015 reports that when he
interviewed plaintiff, she denied speaking to the Union Council Representative about a noconfidence vote. According to Watkins and the investigator, plaintiff maintained that she had
contacted the Union Council Representative in order to work with the Union toward better
collaborative relations. Watkins reports that during a meeting with plaintiff on June 22, 2015,
plaintiff "acknowledged" that she had contacted the Union Council Representative in April, but
was "non-committal" about what was said. Watkins Deel. iI 10.
4

One of the exhibits plaintiff submitted in support of her opposition to summary
judgment is a July 10, 2015 letter from the Union Chapter Chair to Watkins and Benas. That
letter describes plaintiffs communication on May 13, 2015 and states that plaintiff suggested
"inciting the Union" to pursue a no confidence vote. Stephenson Deel. Ex. 19 at 71, Dec. 21,
2017.
Page 3 - OPINION AND ORDER

no-confidence vote requests. The Union Chapter Chair was one of plaintiff's subordinates and
the same individual whose behavior had prompted plaintiff to request sexual harassment training
in 2014.
Defendants claim that in the spring of 2016, they began receiving "vague" complaints
about the DD Program. Watkins Deel.

~

7. The only subject of the complaints identified by

defendants is that plaintiff had apparently suggested a client be transferred to a non-CBH
therapist. Watkins expressed concern that plaintiff had "not adequately investigated whether
CBH could provide those services in-house," which is prefe11"ed in order to "provide the highest
quality of care" for its clients. Watkins Deel.

~

7. Watkins also expressed doubt regarding

plaintiff's qualifications for making such determinations regarding clients' mental health
treatment.
On June 22, 2015, 5 defendants Watkins and Benas met with plaintiff. Plaintiff reports
that, at the meeting, Watkins and Benas threatened her employment after plaintiff acknowledged
that she continued to be friends and housemates with the former employee who had resigned on
April 22. Defendants report that, at the meeting, they discussed Varese's referral of a client to a
non-CBH therapist, general complaints received regarding the DD Program, and expectations for
areas on which plaintiff was to focus moving forward.

Defendants also raised plaintiffs

purpmied contact with Union representatives and her alleged requests for a no-confidence vote
against them.

"In no uncertain terms, [Watkins] told Ms. Varese that management-level

employees were expected not to undetmine CBH management to the Union."

Id.

~

10.

Defendants maintain that they neither threatened plaintiffs job nor attacked her character, and
that the exchange was professional.
5

June 22, 2015, was also the day that CBH receive notification that the former CBH
employee who resigned on April 22, 2015, had retained an attorney.
Page 4 - OPINION AND ORDER

On July 7, 2015, a meeting took place between plaintiff, defendants, and plaintiffs four
staff subordinates. Plaintiff declares "the fact of the meeting alone was strange," and indicates
that she had expected a private meeting with Watkins.

Varese Deel.

if

8.

Defendants

characterize the meeting as a weekly DD Program staff meeting, though they concede that this
meeting was scheduled at a time that was different than usual. Plaintiff and defendants describe
the meeting as "tense" and "heated," respectively. Varese Deel.
Deel.

il 4, Nov. 13, 2017.

il 8; Watkins Deel. il 12; Benas

One or more of plaintiffs subordinates questioned whether

management had instructed plaintiff to "randomly write up" employees absent a violation of
CBH policy. Watkins Deel.

il 12; Benas Deel. il 4, Nov. 13, 2017; see also Varese Deel. il 8.

Benas responded that he had not so directed plaintiff. Plaintiff maintains that she had been
directed to write up one staff subordinate for absences associated with medical leave, which
instruction she believed to be illegal. Defendants and others present at the meeting aver that
plaintiff ultimately apologized for saying that defendant Benas had directed her to write up
subordinates. 6
On the morning following the DD Program meeting, July 8, 2015, plaintiff sent two
email messages to defendants. In the first message, plaintiff stated that she would be filing a
formal complaint regarding the July 7 meeting, which she alleged had been "a direct attack
against my character," "resulted in a hostile work environment," and was "retaliatory in nature
due to my affiliation and association with previous employees that are no longer with CBH."
Stephenson Deel. Ex. 15 at 26, Dec. 21, 2017. That first email was addressed to Watkins and
Benas and copied to CBH' s Board President, as well as to two other Clatsop County employees.
Approximately four hours later, plaintiff sent another email to solely Watkins and Benas in
6

In her response brief, plaintiff contends that she "eventually sarcastically agreed ... in
order to move on." Pl.'s Resp. 12.
Page 5 - OPINION AND ORDER

which she reported three of her subordinate staff discussing personal sexual matters and refen'ing
to clients in disparaging terms. The second email focused primarily on allegedly inappropriate
statements made by the Union Chapter Chair.
Benas responded via email to plaintiffs first message the following morning, July 9,
stating, "We take these fo1mal complaints very seriously. We will have an investigator following
up promptly."

Benas Deel. Ex. 3, Nov. 13, 2017.

Also on July 9, three of plaintiffs

subordinates-including the Union Chapter Chair-submitted a joint letter to Watkins
expressing their concerns about the "hostile work enviromnent we are in due to the actions of our
supervisor, Program Manager Cheryl Varese." Louder Deel. Ex. 5. The three staff requested
"protection from Ms. Varese's retaliatory actions and removal of her as Program Manager
immediately." Id.
The next day, July 10, CBH retained David Hepp to conduct an independent investigation
of plaintiffs complaint.

Both parties agree that CBH Board President hired Hepp; neither

Watkins nor Benas participated in the selection process or decision to hire Hepp. In written
correspondence with Hepp, the CBH Board President indicated that Benas would provide
additional information and serve as a point of contact. Between July 10 and July 14, Hepp
interviewed Watkins, Benas, the Union Council Representative, the three subordinates who had
written to request plaintiff be removed from her position, another CBH employee whom the
plaintiff had formerly supervised, and the plaintiff herself. In his declaration, Hepp noted that,
"[a]lthough I typically interview the complainant before the other witnesses," he interviewed the
plaintiff last, on July 14, because she was out of the office attending a training. Hepp. Deel. 'If
11. Hepp did not interview plaintiffs fourth subordinate because that staff member was on
medical leave at the time of the investigation.

Page 6 - OPINION AND ORDER

Hepp's investigation yielded divergent recollections or inconsistent reports of events by
various interviewees.

For example, on July 13, Hepp interviewed the Union Council

Representative, who told Hepp that the plaintiff had contacted her around the third week of April
and recommended that the Union take a no-confidence vote against CBH executive management.
When he interviewed the plaintiff on July 14, however, Hepp rep01is that the plaintiff told him
"she had not spoken to Ms. Simpson about a no-confidence vote[.]" Hepp. Deel.
times in his declaration, Hepp concludes that plaintiff"lied." Id.

if 20. Multiple

iii! 21, 26, 29, 31.

Plaintiff contests the impartiality of the investigation can-ied out by Hepp. Benas and
Watkins helped facilitate scheduling interviews and provided Hepp with various documents.
Plaintiff points out that by the time Hepp interviewed plaintiff on July 14, 2015, Hepp had spent
more than twenty ho ms on the investigation; in plaintiffs estimation, he "had already made up
his mind[.]" Varese Deel.

if 12. In particular, plaintiff highlights that, in his notes, Hepp referred

to the plaintiff with the delta symbol (" /)."), which is commonly used as legal shorthand to denote
a defendant. Hepp acknowledges in his declaration that "[a]lthough I was initially retained to
investigate Ms. Varese's complaints, I discovered complaints about Ms. Varese's conduct during
the course of my investigation." Hepp Deel. if 38.
On July 17, 2015, plaintiff met with a doctor regarding anxiety, sleep loss, and other
manifestations of "severe work-related stress."

Varese Deel. Ex. 14.

Plaintiffs doctor

prescribed a week off of work. On Sunday, July 19, plaintiff emailed CBH's acting human
resources staff person,7 Pam Dean, to ale1i her that plaintiff would be absent for the week and
that she had a doctor's note she could bring when she returned the following Monday. On July
20, Dean emailed plaintiff paperwork for FMLA-protected medical leave and sh01i-term
7

CBH's long-term HR manager was on leave from June 2015 tlll'ough August 2015.

Page 7 - OPINION AND ORDER

disability, though plaintiff had not expressly requested that information. Dean copied Benas on
the email message containing the attached FMLA paperwork, and Benas does not appear to have
responded to or contested the conveyance of FMLA forms to the plaintiff. On July 24, plaintiff
emailed Dean requesting workers compensation paperwork, which Dean sent on the same day. 8
Dean forwarded that request to Benas and Watkins.
On July 23, 2015, during the week that plaintiff was out of the office, Benas received a
copy of the Hepp's investigative report from CBH's Board President. In the final investigation
report, Hepp set fo1ih "statements, documents, and evidence" in suppo1i of his conclusion that
"Varese underm[es] management authority and mission . . . and [was] untruthfol" during her
investigation interviews. Hepp Deel. Ex. 14 at 3. Benas declares that he made the decision to
terminate plaintiffs employment "[a]fter reviewing Mr. Hepp's report, and based on Mr. Hepp's
conclusions[.]" Benas Deel.

if 11, Nov. 13, 2017. Benas further reports that because plaintiff

was out sick that week, he decided to notify her the following Monday, July 27. On July 26,
2015, Benas ordered plaintiffs final paycheck and drafted the termination letter.
At 8:33am on July 27, 2015, Benas called the plaintiff to inform her that her employment
had been terminated. 9

Benas left a voice message in which he read aloud the prepared

tennination letter. At 8:39am, Benas emailed all CBH staff to inform them that plaintiffs
employment had been terminated. Benas then sent the termination letter to the plaintiff via
certified mail. Meanwhile, at 8:56am, plaintiff faxed her completed workers compensation and
short-term disability forms to Dean. Plaintiff declares that "[w]ithin hours after sending in the
8

Dean notes that plaintiffs "request was a surprise to me, as I was not aware of her
reporting any injuries related to work." Dean Deel. if 6.
9

Benas' declaration indicates that the plaintiff did not return to work as expected on
Monday, July 27, so he decided to call her because he "did not want to delay letting her know
that her employment had been terminated[.]" Benas Deel. if 14.
Page 8 - OPINION AND ORDER

foims," she received the voicemail from Benas notifying her of te1mination. Varese Deel.

if 15.

Benas instructed Dean to forward the plaintiffs workers compensation form to CBH' s insurance
provider; no further action was taken with regard to plaintiffs sho1t-te1m disability paperwork.
Plaintiff filed this action on April 29, 2016. Defendants moved for summary judgment
on November 13, 2017.
STANDARD

Summary judgment is appropriate if "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving
patty has the burden of establishing the absence of a genuine issue of material fact. Id.; Celotex

Corp. v. Cartrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine
issue of material fact, the nonmoving party must go beyond the pleadings and identify facts
which show a genuine issue for trial. Id. at 324.

"Summary judgment is inappropriate if

reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict
in the nonmoving parties favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th
Cir. 2008).
DISCUSSION

To establish that an employer interfered with an employee's right to take FMLA leave,
employee-plaintiffs must meet the five elements of a prima facie FMLA interference claim: "the
employee must establish that: (1) he was eligible for the FMLA's protections, (2) his employer
was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided
sufficient notice of his intent to take leave, and (5) his employer denied him FMLA benefits to

Page 9 - OPINION AND ORDER

which he was entitled." 10 Sanders v. City of Newport, 657 F.3d 772, 778 (9th Cir. 2015)
(adopting the test set out in Burnett v. LFW Inc., 472 F.3d 471, 477 (7th Cir. 2006)). The first
three elements are uncontested in this case.
Defendants contend that they are entitled to summary judgment on plaintiffs FMLA
claim on two bases. First, defendants argue that plaintiff did not provide sufficient notice of her
need for FMLA-protected medical leave. Second, defendants argue that plaintiff has not met the
burden of demonstrating by a preponderance of the evidence that CBH's termination of her
employment was in retaliation for plaintiffs medical leave, such that plaintiffs medical leave
was a "negative factor" in CBH's decision to terminate plaintiffs employment. 29 C.F.R. §
825.220(c).

10

The FMLA expressly prohibits employers from interfering with or discriminating
against employees who take protected medical leave. 29 U.S.C. § 2615(a). In the Ninth Circuit,
FMLA discrimination/retaliation claims under 29 U.S.C. § 2615(a)(2) are limited to situations in
which an employee alleges that the employer retaliated against her because she "oppose[d]
employer practices made unlawful by FMLA." Xin Liu v. Amway Corps., 347 F.3d 1125, 1133
n.7 (9th Cir. 2003) (emphasis omitted). By contrast, the Ninth Circuit has held that when an
employee alleges an employer retaliated against her for taking FMLA leave, she had stated a
claim for FMLA interference, under 29 U.S.C. § 2615(a)(l). See Bachelder v. Am. W: Airlines,
Inc., 259 F.3d 1112, 1124 (9th Cir. 2001) ("By their plain meaning, the anti-retaliation or antidiscrimination provisions do not cover visiting negative consequences on an employee simply
because he has used FMLA leave. Such action is, instead, covered under § 2615(a)(l)[.]")
(internal citations omitted); see also Xin Liu, 347 F.3d at 1133 n.7 (observing that, in the Ninth
Circuit,"§ 2615(a)(l) applies to employees who simply take FMLA leave and as a consequence
are subjected to unlawful actions by employees who simply take FMLA leave and as
consequence are subjected to unlawful actions by the employer") (citing Bachelder, 259 F.3d at
1124). The U.S. Department of Labor regulations regarding interference with FMLA-protected
medical leave specifically state that "employers cannot use the taking of FMLA leave as a
negative factor in employment actions." 29 C.F.R. § 825.220(c).
Plaintiff pleads a claim for FMLA "interference, discrimination and/or retaliation[.]"
Pl.'s Comp!. at 7 (capitalization n01malized). Because she alleges that she was discriminated
against for taking medical leave and does not allege that defendant retaliated against her for
opposing its FMLA policies, her claim is properly analyzed as an FMLA interference claim
under 29 U.S.C. § 2615(a)(l).
Page 10- OPINION AND ORDER

I.

FiVJLA Notice Requirement

Defendants challenge the sufficiency of plaintiffs notice to CBH of her intent to take
protected leave.

When an FLMA-eligible employee has an unforeseeable need for medical

leave, U.S. Depatiment of Labor regulations require her to provide notice to her employer "as
soon as practicable." 29 C.F.R. § 825.303(a). "As soon as practicable means as soon as both
possible and practical, taking into account all of the facts and circumstances in the individual
case." Id § 825.302(b). An employee is not required to affitmatively invoke the FMLA in her
notice of need for medical leave. Id. § 825.303(b).

Rather, "[a]n employee shall provide

sufficient information for an employer to reasonably detetmine whether the FMLA may apply to
the leave request." Id.§ 825.303(b). Once the employee provides such notice, the burden is then
on the employer to "inquire further ... and obtain the necessary details of the leave to be taken."
Id; see also Bachelder, 259 F.3d at 1130 ("[I]t is the employer's responsibility, not the

employee's, to detem1ine whether a leave request is likely to be covered by the Act."). However,
simply "[c]alling in 'sick' without providing more information will not be considered sufficient
notice to trigger an employer's obligations" under FMLA. 29 C.F.R. § 825.303(b). Whether an
employee's notice of medical leave constitutes sufficient notice to an employer under the FMLA
is a question of fact. See, e.g., Phillips v. 1Vfathews, 547 F.3d 905, 909 (8th Cir. 2008) ("Whether
an employee gave sufficient information to put his or her employer on notice that an absence
may be covered by the FMLA is a question of fact for the jury."); Price v. City of Fort Wayne,
117 F.3d 1022, 1026 (7th Cir. 1997) ("Whether [the employee] gave the notice required is
necessarily a question of fact, linked to her illness and its manifestations.")
Here, plaintiff notified her employer on a Sunday that she would be out the following
week.

In her notification email to CBH' s acting human resources staff person, plaintiff

Page 11 - OPINION AND ORDER

mentioned that she had a doctor's note, which she could produce when she returned to work the
following week. Plaintiff had met with her doctor two days prior, on a Friday, which was when
she received the prescription for time off. In her email notifying the defendant of her absence,
plaintiff did not expressly mention medical leave, nor did she affomatively invoke the FMLA.
Yet defendant CBH's acting human resources staff person responded to plaintiffs notice by
emailing the plaintiffFMLA paperwork to fill out and send back.
A reasonable juror could conclude that CBH was on constructive notice, if not actual
notice, that the plaintiff had requested FMLA-protected medical leave. Both parties concede that
plaintiff was eligible for and entitled to such leave. Though plaintiff could have chosen to notify
defendant earlier than Sunday, July 19, after receiving the doctor's order on Friday, July 17,
plaintiff likely met the "as soon as practicable" regulatory standard by notifying defendant by the
next business day. Cf 29 C.F.R. § 825.302 (providing that, when an employee learns she will
need FMLA leave within the next thirty days, that employee should be able to provide notice
"either the same day or the next business day"). Moreover, plaintiff did more than merely call in
sick; she expressly offered to produce a doctor's note upon her return to work. Significantly,
CBH' s conveyance of FMLA paperwork to the plaintiff following her medical leave notification
strongly suggests that plaintiff provided enough infonnation for CBH to determine that FMLA
might apply. A reasonable juror could interpret defendant CBH's act of sending the plaintiff
FMLA paperwork as recognition and acceptance of sufficient notice.
Viewing the facts and drawing all inferences in the light most favorable to the nonmoving
patty, a genuine issue of material fact exists as to the sufficiency of plaintiffs medical leave
notice. Reasonable jurors could find that plaintiffs notice was sufficient under FMLA.

Page 12 - OPINION AND ORDER

II.

Fi\1LA Retaliation Claim

Defendants next challenge plaintiffs allegation that she was terminated in retaliation for
the medical leave she took during the week prior to te1mination of her employment. In order
prove causation for an FMLA claim, an employee-plaintiff must prove by a preponderance of the
evidence that use of FMLA-protected leave was a "negative factor" in the employer-defendant's
decision to terminate. 11 Bachelder, 259 F.3d at 1125; see also Schultz v. Wells Fargo Bank, NA,
970 F. Supp. 2d 1039, 1053 (D. Or. 2013). A plaintiff may use direct or circumstantial evidence
to establish that protected leave constituted a negative factor. Bachelder, 259 F.3d at 1125.
"Temporal proximity between protected activity and an adverse employment action can by itself
constitute sufficient circumstantial evidence of [causation] in some cases." Bell v. Clackamas

Cty, 341 F.3d 858, 865 (9th Cir. 2003) (addressing timing and retaliation in the context of Title
VII, 42 U.S.C. 2000e et seq.). However, temporal proximity alone is not sufficient to establish
prima facie retaliation if the timing "does nothing to refute ... the proffered legitimate reasons"
for the adverse employment action. Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997).
Here, plaintiff was terminated following an independent investigation commissioned after
plaintiff filed a formal complaint against defendants. The investigation report concluded that
plaintiff had been untruthful and actively sought to undermine CBH management authority.
Setting aside whether the investigator's conclusions were accurate or impattial, Benas made the
decision to terminate plaintiffs employment on the same day he received the repo11.
Moreover, the investigation repo11 in effect represented the culmination of a series of
11

Unlike some other circuits, the Ninth Circuit has expressly declined to apply the
burden shifting framework established in lvfcDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), to FMLA termination cases. See Xin Liu, 347 F.3d at 1136 (explaining that "where an
employee is subjected to 'negative consequences ... simply because he had used FMLA leave,'
the employer has interfered with the employee's FMLA rights under 29 C.F.R. § 825.220(a)(l)")
(citing Bachelder, 259 F.3d at 1124-25).
Page 13 - OPINION AND ORDER

actions showing that plaintiffs continued at-will employment with CBH was (at best) on shaky
ground prior to her period of medical leave. On June 22, 2015, Benas and Watkins requested a
meeting with plaintiff to discuss, among other concerns, reports that plaintiff had encouraged a
no-confidence vote against Benas and Watkins by the Union representing CBH employees,
which, if executed, would have had the effect of ejecting Benas and Watkins from their positions
at CBH. Plaintiff herself alleges that defendants threatened her employment at the meeting. In
addition, defendants received a letter on July 9 from three of the plaintiffs four subordinate staff
members requesting that she be removed from her position. All of those events occurred prior to
plaintiff taking or notifying CBH that she planned to take protected medical leave.
Given the foregoing facts, this is not a case in which the temporal proximity between the
protected activity and the adverse employment action constitutes sufficient evidence of
causation. Instead, the summary judgment record demonstrates that plaintiff was on the road to
te1mination well before she invoked her right to protected medical leave and irrespective of her
decision to do so. Moreover, plaintiff has introduced no evidence other than temporal proximity
to bolster her claim that her leave was a negative factor in the employment decision. Even when
viewing the facts and drawing inferences in the light most favorable to the nonmoving party, the
temporal proximity between the plaintiffs leave and the termination decision "does nothing to
refute" defendants' stated reasons for terminating plaintiffs employment. Hashimoto, 118 F.3d
at 680. Defendants are thus entitled to summary judgment on plaintiffs FMLA claim.
SUPPLEMENTAL JURISDICTION OVER PENDENT STATE LAW CLAIMS

I need not consider plaintiffs remaining state law claims against defendants as I decline
to exercise supplemental jurisdiction over those claims. 28 U.S.C. § 1367 provides the basis for
supplemental jurisdiction:

Page 14 - OPINION AND ORDER

Except as provided in subsections (b) and (c) or as expressly provided otherwise
by Federal statute, in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such original jurisdiction
that they fonn part of the same case or controversy under Article III of the United
States Constitution.
I have discretion to "decline to exercise" supplemental jurisdiction in various circumstances,
including when "the district court has dismissed all claims over which it has original
jurisdiction." 28 U.S.C. § 1367(c)(3).
That is exactly the situation at bar. Here, supplemental jurisdiction over the state law
claims was based on federal question jurisdiction over the federal claims: alleged violations of
the FMLA and the Americans with Disabilities Act. Plaintiff has conceded summary judgment
as to the latter claim and I am granting summary judgment on the former claim.

In such

instances, the Ninth Circuit encourages district courts to "decline jurisdiction over state claims
and dismiss them without prejudice." Les Schockley Racing Inc. v. Nat'/ Hot Rod Ass 'n, 884
F.2d 504, 509 (9th Cir. 1989). Interpretation of state statutes is best left to a state court. United

Aiine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) ("Needless decisions of state law
should be avoided both as a matter of comity and to promote justice between the patties, by
procuring for them a surer-footed reading of applicable law."). I therefore decline to exercise
supplemental jurisdiction over plaintiffs remaining state law claims and dismiss them without
prejudice.
CONCLUSION

Defendant's motion for summary judgment (doc. 42) is GRANTED in part, as to
plaintiffs FMLA claim and as to the six claims on which plaintiff concedes defendants are

Page 15 - OPINION AND ORDER

entitled to summary judgment. 12

I decline to exercise supplemental jurisdiction over the

remaining state law claims and dismiss them without prejudice. The parties' request for oral
argument is denied as unnecessary.
IT IS SO ORDERED.
Dated t h i q

~of March 2018Q.
{_,~ Clie,~
Ann Aiken
United States District Judge

12

Plaintiff concedes defendants are entitled to summary judgment on plaintiffs claims
alleging (1) federal disability discrimination under Title I of the Americans with Disabilities Act,
42 U.S.C. § 12111, et seq.; (2) state disability discrimination under Or. Rev. Stat. § 659A.l 12;
(3) state disability retaliation under Or. Rev. Stat. § 659A.l 09; (4) failure to accommodate a
disability under Or. Rev. Stat. § 659A.112 and § 659A.118; (5) wrongful discharge under Or.
Rev. Stat. § 659A.183, Or. Admin. R. 839-009-0200, et seq., and 29 U.S.C. § 2601, et seq.; and
(6) associational discrimination under Or. Rev. Stat. § 659A.030.
Page 16- OPINION AND ORDER