Seehawer v. McMinnville Water and Light
Filing
66
OPINION and ORDER - For the reasons stated Seehawer fails to show any genuine issue of material fact as to his Title VII claims or his FMLA claim, but issues of material fact exist as to his ADA claims. Accordingly, MWL's Motion (ECF No. 29) for Summary Judgment is GRANTED as to his Title VII and FMLA claims, and DENIED as to his ADA claims. DATED this 15th day of March, 2019, by United States Magistrate Judge John V. Acosta. (peg)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
Case No.: 3:16-CV-01682-AC
CHRISTOPHER SEEHAWER,
Plaintiff,
OPINION AND ORDER
v.
MCMINNVILLE WATER & LIGHT,
Defendant.
A COSTA, Magistrate Judge:
Introduction
Plaintiff Christopher Seehawer ("Seehawer") filed this lawsuit against defendant
McMinnville Water & Light ("MWL") under Title VII of the Civil Rights Act ("Title VII"), the
Federal Family Medical Leave Act ("FMLA"), and the Americans with Disabilities Act of 1990
("ADA"). Seehawer alleges discrimination from a hostile work environment due to alleged sexual
harassment by coworkers; retaliation for reporting or opposing the harassment; interference,
PAGE 1 - OPINION AND ORDER
discrimination, or retaliation for using protected FMLA leave; and failure to engage in the interactive
process required upon a reasonable accommodation request and subsequent wrongful termination
based on an actual or perceived disability.
Cunently before the court is MWL's Motion for
Summary Judgment. (Def.' s Mot. for Summ. J. ("Motion"), ECF No. 29.) Because no genuine issue
of material fact exists as to Seehawer's Title VII and FMLA claims, MWL's motion for summary
judgment is granted on those claims. However, because a question of fact exists as to Seehawer's
ADA claims, MWL's motion for summary judgment on those claims is denied. 1
Background
Seehawer is a heterosexual male who asse1is he is a "qualified individual with a disability,
including but not limited to depression and suicidal ideation," which MWL denies. (Compl., ECF
No. 1, 19; Def.'s Reply, ECF 45, at 11.) From 2004 until the termination of his employment in
April 2015, Seehawer worked for MWL, a municipal utility provider in McMinnville, Oregon, first
as a meter reader and then as a water distributor operator on a water crew. While a member of the
water crew, Seehawer performed his duties with other MWL employees, including Bobby Huber
("Huber"), Mike McGanty ("McGanty"), and "leadman" Mark Knutz ("Knutz"). (Comp 1., 1 12, 13.)
Seehawer's direct supervisor was Robe1i Klein ("Klein"), and Seehawer received performance
evaluations from both Klein and another supervisor, Teny Olson ("Olson"). (Dep. of Christopher
\\ \ \\
1
This court originally entered this ruling as a Findings and Recommendation (ECFNo. 52),
which District Judge Michael Simon adopted without modification or supplementation (ECF No.
59), after considering plaintiffs objections. Subsequent to that decision, full consent to jurisdiction
by magistrate judge was obtained (ECF No. 64), and the court conferred with counsel to set a trial
date. (ECF 62, 63.) Accordingly, this court reenters the prior F&R as an Opinion and Order in
preparation for trial. The O&O's content is revised only as necessary to reflect this change.
PAGE 2 - OPINION AND ORDER
Seehawer ("Seehawer Dep."), ECF No. 38-1, at 74:24-75:2, 75:3-7). 2 Kem Can ("Carr") was the
general manager ofMWL from approximately November 2011 (Dep. of Kem Carr ("Can· Dep."),
ECFNo. 38-2, 8:8-10, 10:2-4, 15:14-16.)
MWL has written, published policies concerning workplace sexual harassment in its
Employee Handbook ("Policy"). (Deel. of Kem Carr, ("Carr Deel."), ECF No. 31,
,r,r 4,
5.)
Seehawer acknowledged that he received, read, and understood the handbook upon his hire in 2004,
and the updated Policy in 2010. (Id. at ,r,r 6, 7.) The Policy prohibits, among other harassing acts,
"[v]erbal harassment ... , derogatory comments ... , [and] demeaning or sexually explicit jokes .
. . ." (Carr Deel., Ex. 1, at 5.) "[S]tatements are sexual harassment when, inter alia, they have the
purpose or effect of interfering with the employee's work performance or creating an intimidating,
hostile or offensive working environment." (Id.) Employees are instructed to report in the following
way:
[C]ontact your supervisor immediately if [yJou feel you have been the victim of
harassment. If you are uncomfo1iable speaking to your supervisor, please feel free
to bring your concerns to the General Manager. Confidential investigations will be
conducted promptly. Appropriate corrective actions will be taken upon completion
of our investigation. Employees found to be harassing other employees will be
immediately and appropriately disciplined, up to and including immediate discharge.
(Id. at 6.)
Seehawer testified that his coworkers began harassing him after an August 2013 incident
arising from Seehawer's failure to properly secure a vacuum tube onto a vacuum truck with which
the water crew was working (the "Vacuum Incident"). (Seehawer Dep., 102: 19-103: 16; 108:2-17.)
Huber was the driver on the job that day, and as he drove away, the tube came off the truck and
2
Depositions are cited to their internal pagination. Documents attached to the deposition
transcripts are cited with respect to their exhibit number used in the deposition or declaration.
PAGE 3 - OPINION AND ORDER
shattered. (Seehawer Dep., 103 :5-10.) Allegedly, immediately following the incident, Huber was
angry, and cussing, "got up in [Seehawer's] face" and called him a "dumb ass." (Id.; see also Carr
Deel., Ex. 5, Seehawer's February 12, 2015 letter to management (the "Letter") ("[Huber]
approached me and yelled at me ... and called me a 'fl]ing moron!"').) After an investigation,
MWL found both Huber and Seehawer were partially responsible for the Incident. (Carr Deel., ,r 12.)
According to Seehawer, the Vacuum Incident served as the catalyst for what became a "daily
barrage of sexually charged harassment" that questioned his sexual preference for "not living up to
the masculine stereotype." (Pl.'s Resp. ("Resp."), ECF No. 37, 2-3.) In November 2013, as
Seehawer stood in a trench working on a pipe fitting, Huber, operating a backhoe, backfilled the
trench with rocks which fell on Seehawer he bent over the pipe (the "Rock Incident"). (Seehawer
Dep., 180:8-14.) Seehawer and MWL disagree as to whether or not Huber acted intentionally.
Seehawer stated that at the time, Huber was "looking right at [him]," (id.); Huber and Knutz testified
that Huber did not see Seehawer, as he was out of view. (Huber Dep., ECF No. 38-3, 23:20-22;
Knutz Dep. 33:4-21; Carr Deel., ,r 13.)
Seehawer testified that Huber and McGanty would consistently taunt, demean, and attack him
using inappropriate, demeaning names. (Seehawer Dep., 169:7-14.) Huber would step in front of
Seehawer to block him at work and just smile and laugh, or refuse to bring necessary tools for
Seehawer when Seehawer was working in a trench. (Letter, 4-5.) Huber and McGanty would
say,"Oh look who decided to show up" and "my day is ruined," when Seehawer came into view. Id.
Seehawer asserts that Knutz would also join them at times. (Letter, at 4 ("[Knutz] would just laugh
about it and agree with them.").) Seehawer believes that the names Huber and McGanty called him
were sexual or violent in nature, including "cornhole," which Seehawer understood to mean
PAGE 4 - OPINION AND ORDER
homosexual.
(Id. at 169:9-11, 170:17-171:3.)
Vulgar language, including use of the term
"cornhole," was commonly used in the workplace. (Dep. of Mark Knutz ("Knutz Dep."), 20: 15-24,
22:1-6 (stating that the term was thrown around frequently at work "towards somebody doing a
stupid act" since around 2012).) Seehawer also states he felt physically threatened by Huber,
including an instance when Huber allegedly told Seehawer "I can fl]ing kill you right now," a threat
Huber denies making. (Seehawer Dep., 173:12 - 175:5; Huber Dep., 20:24 - 21 :1, 25:3-7.)
Seehawer claims he reported the harassment, primarily to Knutz.
(Seehawer Dep.,
185: 8-19.) Seehawer made his first report immediately following the Vacuum Incident, though he
does not remember to whom he reported it. (Seehawer Dep., 103:17-25;104:7-13.) Second, he
reported to Knutz that Huber allegedly threatened his life. (Seehawer Dep., 175:14-23.) After
talking with Huber, according to Seehawer, Knutz determined that Huber had been "joking," and
Huber was "never disciplined." (Seehawer Dep., 176:6-18; Resp., at 7.) Third, Seehawer reported
Huber's conduct to Knutz after the Rock Incident. (Seehawer Dep. 180:3-16.) Knutz determined
that Huber had not seen Seehawer when he began to drop rock into the trench, and therefore took
no disciplinary action against Huber. (Huber Dep., 8:12-14.) Seehawer also claims to have made
"complaints about coworkers" to Knutz, Klein, and Olson, but does not specify when or how he
made those other reports, or what exactly he repmied. (Seehawer Dep., 78:5-8.)
MWL contends that although Seehawer complained of mistreatment, and characterized the
treatment as "harassment" in the Letter, he never reported that the harassment was sexual in nature.
(Carr Deel., ,r,r 14, 15, 17.) According to MWL, Seehawer did not complain of sexual harassment
during regular performance meetings or on any other occasion with Knutz, Klein, Olson, or CaiT,
but rather reported only that coworkers "treat[ed] him unfairly and us[ ed] profane, demeaning names
PAGE 5 - OPINION AND ORDER
towards him." (Id.) MWL general services manger, Patrick Quin, characterized the conduct
between the workers as "childish," like a "wounded chicken" being "picked to death" by a hen.
(Dep. of Patrick Quinn, ECF. No. 38-8, 43:14-19, 45:10-22, 47:3-11, 81:18-21.) Seehawer first
"ma[de] a complaint about his coworkers" around the time he began his performance improvement
plan. (Carr Dep., 31 :21-3 2: 3.) Carr "received information" that Seehawer had complained of sexual
harassment, but exactly when in time he received that information is unclear. (Id. at 30:3-8.)
Seehawer frequently missed, and was tardy to, work. (Seehawer Dep., 111: 1-17, 112: 1-14,
Deel. of Joshua Stump ("Stump Deel."), ECF No. 30, Ex. 1.) As detailed in his regular performance
evaluations, Klein had warned Seehawer of his poor productivity and noted Seehawer was not
willing to perform certain aspects of the job "in hard, dirty work situations." (Stump Deel.; Ex. 4
at 6-10.) MWL became dissatisfied with Seehawer' s job performance. (Seehawer Dep., 116: 8-14;
Stump Deel., Ex. 4 at 6-10.) Due to his frequent absences and increasingly poor performance,
Seehawer received a written warning in December 2013, and in July 2014 Seehawer received an
unfavorable performance appraisal. (Stump Deel., Ex. 4 at 6-10.) In August, he was placed on a
"performance improvement plan" ("PIP") and required to attend weekly meetings with Klein or
Olson to "check in" about his job performance. (Id. at 11-13, 18.)
Despite a satisfactory performance review on October 1, 2014, later that month, Seehawer
began to appear inattentive and "out of it," and he was involved in two avoidable workplace damage
incidents. (Id. at 18-19.) In December 2014, Seehawer again received a written warning due to poor
performance for the period from October to December. (Id. at 14-15.) The warning noted that
Seehawer was not meeting "some of the expectations" of the PIP, and his performance needed
improvement. (Id.) Consequently, weekly performance evaluations resumed. Seehawer was warned
PAGE 6 - OPINION AND ORDER
that if he failed "to maintain an acceptable level of performance and consistently meet the
expectations and performance benchmarks as outlined in the PIP, pay adjustments or other
disciplinary action, up to and including termination" could result. (Id.)
Seehawer starting taking more time off from work in November 2014, and took FMLAdesignated leave for two periods in December 2014. (Carr Dep., Exs. 10, 26, 33.) Seehawer again
took FMLA leave in February 2015, following an emergency room visit for an attempted suicide
allegedly due to stress from harassment at work. (Seehawer Dep., 218:3 -2:20:14; Carr Dep., Exs.
12, 26, 33. A MWL memo states Seehawer produced two releases clearing him to return to work
"full duty" on Feb. 9, 2015, one from his psychologist, Gregory Cole ("Dr. Cole"), and one from Dr.
Eriksen, M.D. (Carr Dep., Ex. 12.) Dr. Cole excused Seehawer from work "for stress related
reasons" from February 2-11, 2015, stating Seehawer was "cleared to return to full duty on 2/11/15,
as long as he continues to implement treatment suggestions made to him." (Carr Dep., Ex. 33.) 3
Seehawer began a several-weeks-long outpatient treatment program around February 19,
2015. (Seehawer Dep., at 220:23-222:2; Carr Dep., Ex. 11.) On March 20, 2015, Seehawer
submitted to MWL a doctor's note stating that Seehawer could be released back to work on March
30, 2015, to "full duty, with no restrictions." (Carr Dep., Ex. 11, at B-86, see also Ex. 33 at B-101
(dated 3/23/15, stating same return date).)
On Februaiy 12, 2015, while out on FMLA leave, Seehawer wrote the Letter to MWL
3
Seehawer submitted two different notes from Dr. Cole both dated Feb. 6, 2015, but
excusing Seehawer for slightly different time periods. The first states that Seehawer missed work
from 2/2/15 to 2/6/15, and was "cleared to return to full duty on Feb. 9, 2015," and the other states
that Seehawer was out 2/2/15 to 2/11/15 and was cleared to return on Feb. 11, 2015. Additionally,
the second note added a condition to returning to work, "as long as he continues to implement
treatment suggestions made to him," which the first not did not contain. (Carr Dep., Ex. 33 at B-99,
B-100.)
PAGE 7 - OPINION AND ORDER
management outlining the "ongoing harassment" he suffered at the hands of Huber and McGanty,
including "name calling and slandering and talking behind [his] back." (Letter, at 3, 6.) Huber and
McGanty "started calling [Seehawer] 'corn hole.' They would say it at jobs, [in the] lunchroom,
[in the] warehouse, everywhere .... Here's a list of what they would say[:] corn hole, fucking corn
hole, here comes the corn hole, corn hole alert, now there's a corn hole." (Letter, at 3.) In the Letter,
Seehawer claims to have told Knutz, Klein, and Olson "about the issues many times." (Id. at 5.)
Seehawer also states that Dr. Cole had "come up with a plan of action to make [him] better,"
suggesting either that Seehawer be transfe1Ted or "placed with" coworkers other than Huber or
McGanty. 4 (Id. at 6.) Seehawer also alleges that he told Klein about Dr. Cole's plan, and Klein said
"he would talk with ... [CmT]" about it. (Id. at 7.) According to the Letter, though, Klein "came
back" and told Seehawer he could not "accommodate" the suggested options or "change things"
around "because of [Seehawer's] issues with" Huber and McGanty. (Id.)
Seehawerwas still on FMLA leave when MWL received the Letter. (Carr Dep., 46:16-17.)
CaIT spoke with Klein to see ifhe had received any previous rep01is "of this type of harassment" by
Seehawer. (CaiT Dep., 44:21-24, 46:7-12.) Klein and Olson reviewed and investigated the
incidents documented in the Letter; some were substantiated and others were not. (CaIT Dep., Ex.
26 at B-95.) The incidents MWL confirmed it addressed with employees, and expectations were
discussed. (Id.) Management held individual meetings with Knutz, Huber, and McGanty, as well
as with the entire water crew as a group, to address the accusations in the Letter, and to "go[] over
with the crew that [CaIT] didn't want this language to continue." (Ca1T Dep., 37: 19-23, 44:8-16, Ex.
26 at B-95.) Seehawer expressed that he did not want to take pmi in the meeting with the water crew
4
If Dr. Cole created a written "plan," it is absent from the record.
PAGE 8 - OPINION AND ORDER
because he was uncomfortable meeting with them. (Can- Dep., 48:25-49:15, 55:4-14; Seehawer
Dep., 98:5-11.) Can- and Klein met with Seehawer separately from the rest of the crew. Seehawer
says he told them "what was being said to [him]," such as "douche bag, fucking corn hole, corn hole,
here comes the corn hole, look at the corn hole." (Seehawer Dep., 93:14-94:24, 97:17-98:22.)
On April 2, 2015, Seehawer submitted another note from Dr. Cole, who wrote that he had
seen Seehawer again "for stress related reasons concerning continuing harassment by coworkers."
(Carr Dep., Ex. 33 at B-98.) In this note, Dr. Cole did not excuse Seehawer from work, specify
whether Seehawer could work, or state whether he could work with identified restrictions. (Id.)
After receiving this note, MWL sent Seehawer an FMLA status letter alerting him that he would
soon exhaust his FMLA leave, and that MWL would require a release from Dr. Cole "to return to
full duty work in [his] position." (Id. at Ex. 4.) On April 7, 2015, Dr. Cole indicated that Seehawer
was "not currently approved for return to work ... because of continuing problems managing stress
from coworkers, and what [Seehawer] describes as a hostile work environment." (Id. at Ex. 33 at
B-102.)
MWL sent Seehawer a second FMLA status letter on April 16, 2015 stating, "if [Seehawer
did] not return to work, [his] ... FMLA leave [would] end[] at the end of the day April 23, 2015."
(Id. at Ex. 5.) Additionally, it stated "there [we]re no open positions" at that time.
(Id. at
51 :13-52:12.) That is, there were no other positions available at MWL into which Seehawer could
transfer, but his position on the water crew was "still filled by him." (Id.) Seehawer did not return
to work, but on April 23, 2015, he appeared onsite to turn in his keys and remove his personal items.
(Seehawer Dep., 232:18-233:3, 261 :22-25; Carr Dep., Ex. 34.) Because MWL had not received a
doctor's note releasing him to full duty, MWL interpreted these events as Seehawer's resignation.
PAGE 9 - OPINION AND ORDER
(Carr Dep., Ex. 6.) Seehawer did not see it as such; he claims he was merely "waiting to hear" if
MWL would "offer [him] something else" or transfer him to a different position. (Seehawer Dep.,
232:18-235:22.) Seehawer filed the instant suit in August 2016. (Compl., ECF No. 1.)
Legal Standard
Summary judgment is appropriate if the movant shows that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment as a matter of law. FED. R. Crv. P.
56(a). Where different ultimate inferences may be drawn, summary judgment is inappropriate.
Sankovich v. Life Ins. Co. ofN. Am., 638 F.2d 136, 140 (9th Cir. 1981). Summary judgment is not
proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439,441 (9th
Cir. 1995).
The moving party has the burden of establishing the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). If the moving party shows the absence of
a genuine issue ofmaterial fact, the nonmoving party must go beyond the pleadings and identify facts
which show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary
judgment by relying on the allegations in the complaint, or with unsupported conjecture or
conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).
Thus, summary judgment should be entered against "a party who fails to make a showing sufficient
to establish the existence of an element essential to that party's case, and on which that party will
bear the burden of proof at trial." Celotex, 477 U.S. at 322.
The court must view the evidence in the light most favorable to the nonmoving party. Bell
v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to
the existence of a genuine issue of fact should be resolved against the moving pmiy. Hector v.
PAGE 10 - OPINION AND ORDER
Wiens, 533 F.2d 429,432 (9th Cir. 1976). However, deference to the nonmoving paiiy has limits.
The nonmoving party must set forth "specific facts showing a genuine issue for trial." FED. R. CIV.
P. 56(e). The "mere existence of a scintilla of evidence in support of the plaintiffs position [is]
insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where "the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (internal quotation omitted).
Discussion
L.
Title VII
A.
Hostile work environment.
A sexually hostile work environment exists where there is a "pattern of ongoing and
persistent harassment severe enough to alter the conditions of employment." Draper v. Coeur
Rochester, Inc., 147 F.3d 1104, 1108 (9th Cir. 1998). To prove a hostile work environment claim,
a plaintiff must establish first that the workplace was both objectively and subjectively offensive,
Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 871-72 (9th Cir. 2001), and second,
that the harassment occurred "because of sex." Oncale v. Sundowner Offshore Services, Inc., 523
U.S. 75, 79 (1998). Courts usually address these elements in this sequence to determine the viability
of a hostile work environment claim. See, e.g., Nichols, 256 F.3d at 871-72 (stating and analyzing
the two elements in sequence); Froby v. Clark County School District, 669 Fed. Appx. 903, 904-05
(9th Cir. 2016)(addressing the two elements in sequence). Here, the parties' dispute centers
primarily on the second element, whether the alleged conduct meets Title VII' s "because of sex"
requirement. Accordingly, the court addressed this potentially element first.
PAGE 11 - OPINION AND ORDER
1.
"Because of sex": sex-specific element.
To prevail on a claim of a sexually hostile work environment, a plaintiff must prove that (1)
harassment occul1'ed; (2) the harassment was of a sexual nature or based on gender; (3) management
knew or should have known of the harassment, and (4) management failed to take reasonably
prompt, corrective action to address the harassment. Swinton v. Potomac Corp., 270 F.3d 794,803
(9th Cir. 2001). The Act protects both male and female employees. Oncale, 523 U.S. at 78 ("Title
VII's prohibition of discrimination 'because of ... sex' protects men as well as women.") (citing
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983)). Same-sex
harassment also comes within the law's prohibition: "[N]othing in Title VII necessarily bars a claim
of discrimination 'because of ... sex' merely because the plaintiff and the defendant ... are of the
same sex." Oncale, 523 U.S. at 79; see also Rene v. MGM Grand Hotel, 305 F.3d 1061, 1067 (9th
Cir. 2002) (observing that Oncale interprets Title VII to "forbid[] severe or pervasive same-sex
offensive sexual touching").
Analysis of Seehawer' s claim begins by determining whether the conduct he describes
occurred "because of sex," and his own testimony confirms that it did not. Seehawer testified that
his coworkers' behavior toward him began only after the Vacuum Incident, which occmTed because
he failed to properly secure a vacuum tube onto a vacuum truck and caused the tube to shatter when
Huber drove the truck away. Seehawer testified the Vacuum Incident was the catalyst for the
coworker conduct that is the subject of his harassment claim.
Other evidence in the record further confirms that Seehawer's on-the-job el1'or, not his sex,
spawned his coworkers' conduct toward him. Seehawer began the seven-page Letter this way: "This
all started when I forgot to strap down the suction tube hose on the front of the vac-cov truck."
PAGE 12-OPINION AND ORDER
(Letter, Carr Deel., Ex. 5, at 1.) Nor did Seehawer provide evidence that during the more than nine
years between June 2004, when his MWL employment began, and August 2013, when Vacuum
Incident occurred, his coworkers directed harassing conduct - sexually charged or otherwise toward him, or that he ever complained to MWL of such conduct.
In Froby v. Clark County School District, 669 Fed. Appx. 903 (9th Cir. 2016), the Ninth
Circuit emphasized that harassing conduct must be "because of sex" to constitute a sexually hostile
work environment. In Fro by, the female plaintiff brought a Title VII hostile work environment claim
because of the conduct of a male coworker. 669 Fed. Appx. at 904. The court first acknowledged
that "[w]hile sexual harassment must be sexual in nature, 'offensive conduct that is not facially
sex-specific nonetheless may violate Title VII if there is sufficient circumstantial evidence of
qualitative and quantitative differences in the harassment suffered by female and male employees."'
Fro by, 669 Fed. Appx. at 904, quoting EEOC v. Nat 'l Educ. Ass 'n, Alaska, 422 F .3d 840, 842 (9th
Cir. 2005). The court then observed about the evidence:
With one exception, the conduct complained of contained no gender-specific
element. Rather, Proby asse1ied more generally that Hendrix was a "bully" who
"target[ed] education" and who treated prisoners "badly." The only gender-related
conduct was a reference to the mother of his child as a "bitch," but that comment is
not, without more, sufficient to allow a jury to infer that Hendrix's overbearing
behavior was "because of sex." Title VII is not a "general civility" code for the
workplace. Faragherv. City ofBoca Raton, 524 U.S. 775,788,118 S. Ct. 2275, 141
L. Ed. 2d 662 (1998).
Froby, 669 Fed. Appx. at 904. The Ninth Circuit affirmed summary judgment in favor of the
employer.
Here, the only sexually specific behavior Seehawer identified is his co-workers' use of the
word "cornhole" in addressing and referring to him, but the context in which its use arose, as was
the context in Froby, insufficient without more to infer a "because of sex" origin. The other
PAGE 13 - OPINION AND ORDER
examples Seehawer provided - dumping rocks on him while working in a water main ditch,
excluding him from conversations, ridiculing his work skills (Letter, Carr Deel., Ex. 5, at 1, 2, 3-4,
5) - did not contain the sexually charged element required to sustain a Title VII hostile work
environment claim. The record does not suppmi a reasonable inference that the conduct of which
Seehawer complains occurred "because of sex."
2.
"Because of sex": sexual orientation.
Seehawer alleges that his male coworkers subjected him to a hostile work environment,
primarily by calling or referring to him as "cornhole," and that he "understood the term cornhole to
have the sexual connotation that he was homosexual." (Resp., ECF No. 37, at 14.) He argues a
question of fact exists whether his coworkers used the term to be "sexual in nature." (Id.)
"[A]n employee's sexual orientation is irrelevant for purposes of Title VII." Rene, 305 F.3d
at 1063. "That the harasser is, or may be, motivated by hostility based on sexual orientation is
similarly i11'elevant . . . . It is enough that the harasser have engaged in severe or pervasive
unwelcome physical conduct of a sexual nature." Id. at 1063-64. That verbal or physical harassment
is "because of sex" is not enough, however; under Title VII, the conduct must be" 'discrimina[tion]
because of sex.' " Oncale, 523 U.S. at 81 (emphasis in original); Rene, 305 F.3d at 1067 (citing
Oncale).
In Rene, the plaintiffs coworkers subjected him to "offensive sexual touching" because of
his sex. The Ninth Circuit observed:
The physical attacks to which Rene was subjected, which targeted body parts clearly
linked to his sexuality, were "because of ... sex." Whatever else those attacks may,
or may not, have been "because of' has no legal consequence. "[S]o long as the
environment itself is hostile to the plaintiff because of [his] sex, why the harassment
was perpetrated (sexual interest? misogyny? personal vendetta? misguided humor?
boredom?) is beside the point."
PAGE 14 - OPINION AND ORDER
Rene, 305 F.3d at 1066 (citation omitted). Applying the Court's rationale in Oncale, the Ninth
Circuit observed that Title VII forbids "severe or pervasive offensive sexual touching" and that such
touching is "actionable discrimination even in a same-sex workforce." Rene, 305 F.3d at 1067.
Seehawer alleges no physical touching, including any touching "which targeted body parts
clearly linked to his sexuality," or even any gestures toward him - such as blowing kisses at him as
occul1'ed toward the Rene plaintiff - that imitated sexual acts. The only physical conduct Seehawer
identified came from Huber, who "got up in [Seehawer's] face" at the scene of the Vacuum Incident
and who later stepped in front of Seehawer to block him at work. Not only was this conduct not
sexual in nature, it did not involve physical contact with Seehawer.
This analysis applies with equal relevance to the verbal conduct Seehawer describes, his
coworkers' use of the word "cornhole." As explained previously, Seehawer stated the Vacuum
Incident prompted his coworkers' use of that word toward him, and there is no dispute that the
Vacuum Incident did not stem from or involve conduct sexual in nature. Seehawer' s description of
the circumstances in which his coworkers, Huber, McGanty, and others called him "cornhole" - at
jobs, in the lunchroom, in the warehouse, "everywhere" (Letter, Ca11' Deel., Ex. 5, at 3)- does not
asse1i that the word's use occu!1'ed in a context that was sexually charged or sexual in nature.
Indeed, nothing in Seehawer's seven-page Letter or elsewhere in the record supports a reasonable
inference that use of the word "cornhole" met Oncale 's requirement that the conduct constitute
"' discrimina[tion] because of sex."' No fact in the record supports the inference that the co-worker
conduct of which Seehawer complains occu!1'ed "because of sex."
3.
"Because of sex": gender stereotyping.
At oral argument Seehawer argued that his coworkers' s use of "cornhole" toward him
PAGE 15 - OPINION AND ORDER
suggests gender stereotyping drove their behavior. "[F]ailure to conform to [sex] stereotypes" can
be a "criterion of discrimination." Nichols, 256 F.3d at 874 (quoting Price Waterhouse v. Hopkins,
490 U.S. 228, 272-73 (1989) (O'Connor, J., concuning) (brackets in original) (woman denied
partnership in her accounting firm for being too "macho" and not matching her gender norm
stereotype)). 5 " [A] man can ground a [Title VII sexual harassment] claim on evidence that other men
discriminated against him because he did not meet stereotyped expectations of masculinity." Id. at
870 (citing Price Waterhouse, 490 U.S. at 250-51).
The record does not suppo1i a reasonable inference that Seehawer's coworkers' verbal
conduct occmTed because they believed Seehawer "did not act as a man should act," Nichols, 256
F.3d at 874, or because he "did not conform to their gender-based stereotypes," id., which prompted
the conduct in Nichols. There, the plaintiffs coworkers subjected him
to a relentless campaign of insults, name-calling. Male co-workers and a supervisor
repeatedly referred to Sanchez in Spanish and English as "she" and "her." Male
co-workers mocked Sanchez for walking and carrying his serving tray "like a
woman," and taunted him in Spanish and English as, among other things, a "faggot"
and a "fucking female whore."
Id. As the Ninth Circuit observed, plaintiffs coworkers verbally attacked him "for having feminine
mannerisms." Id.
Here, nothing in the record shows or suggests that Seehawer's coworkers' verbal conduct
arose from their perception that he did not act as a man should act or because he displayed feminine
mannerisms. None of the comments Seehawer attributes to his coworkers refers to his masculinity
5
Analysis in Title VII stereotyping cases have used "sex" and "gender" interchangeably.
"Sex" refers to biological sex, whereas "gender" refers to the social expectations of a person based
on that person's biological sex. Thus, for example, a biological woman's sex is female, and society
would expect her gender to be feminine. See A. McGinley "Creating Masculine Identities: Bullying
and Harassment 'Because of Sex'," 79 COLO. L. REV. 1151, 1153 (2008).
PAGE 16 - OPINION AND ORDER
or lack of it, with the possible exception of"cornhole." On that word the record is unequivocal that
its use toward Seehawer arose only after his enor in the Vacuum Incident. The Supreme Court has
"never held that workplace harassment ... is automatically discrimination because of sex merely
because the words used have sexual content or connotations. . . . [T]he conduct at issue [must not
be] merely tinged with offensive sexual connotations, but actually constitute[] discrimina[tion] ..
. because of ... sex." Oncale, 523 U.S. at 80-81. Here, Seehawer's evidence does not create a
reasonable inference under that standard as it applies to gender stereotyping.
4.
"Because of sex": bullying.
At oral argument Seehawer asserted that the record supports a reasonable inference his
coworkers bullied him "because of sex," perhaps because that they did not consider him "manly"
enough. Although the conduct Seehawer alleges here lacks the sexual focus present in Oncale and
Nichols, "bullying" conduct that is not facially sex-specific may violate Title VII. EEOC v. National
Educ. Ass 'n, Alaska, 422 F.3d 840, 842 (9th Cir. 2005). Accord, Froby v. Clark Country School
District, 669 Fed. Appx. 903,904 (9th Cir. 2016) (citing National Educ. Ass'n and Oncale). Thus,
where a male supervisor frequently engaged in "shouting in a loud and hostile manner," used
profanity, and displayed a physically intimidating demeanor toward female employees but not male
employees, such conduct arguably occuned "because of sex" for Title VII purposes. National Educ.
Ass 'n, Alaska, 422 F.3d at 844 ("The facts in the record, interpreted in the light most favorable to
the plaintiffs, could lead a reasonable juror to conclude that Harvey's conduct, of which primarily
women were the targets, was 'because of ... sex' within the meaning of the statute."). As the Ninth
Circuit explained:
[A] pattern of abuse in the workplace directed at women, whether or not it is
motivated by "lust" or by a desire to drive women out of the organization, can violate
PAGE 17 - OPINION AND ORDER
Title VII. Indeed, this case illustrates an alternative motivational theory in which an
abusive bully takes advantage of a traditionally female workplace because he is more
comfmiable when bullying women than when bullying men. There is no logical
reason why such a motive is any less because of sex than a motive involving sexual
frustration, desire, or simply a motive to exclude or expel women from the
workplace.
Id. at 845.
As discussed previously, Oncale and Nichols make clear that Title VII's "because of sex"
prohibition extends to same-sex harassment, and National Educ. Ass 'n, Alaska recognized that
bullying behavior also can violate Title VII where an individual's behavior is directed primarily at
the opposite sex. Unclear is whether the Supreme Court or the Ninth Circuit would extend Title VII
to same-sex bullying that occurs in a same-sex workplace. What is clear, however, is that in each
case in which harassing conduct has been found actionable under Title VII, the common factor is
evidence of conduct that occurred "because of sex." It is the "because of sex" element that
distinguishes Seehawer's situation from the cases discussed above and precludes this comi from
fitting his bullying theory into Title VII' s prohibition. The record, including Seehawer' s own
testimony, confirms that Seehawer's problems with his co-workers began after his on-the-job e1Tor
caused the Vacuum Incident.
Critically lacking here is evidence that Seehawer's coworkers' conduct contained a sexual
component. In the cases where Title VII' s "because of sex" requirement is met, the offensive
physical or verbal behavior evinces a decidedly sexual focus. See, e.g., Rene, 305 F.3d at 1064
(coworkers told plaintiff"crude jokes," gave him "sexually oriented 'joke' gifts," and "grabbed him
in the crotch and poked their fingers in his anus through his clothing"); National Educ. Ass 'n,
Alaska, 422 F.3d at 845 (male supervisor directed his "pattern of abuse" at women, thus supporting
"because of sex" inference and creating fact question on plaintiffs' Title VII hostile work
PAGE 18 - OPINION AND ORDER
environment claim). The Vacuum Incident itself solely concerned an on-the-job mistake; it involved
no sexual acts or words and did not occur in a sexual context. Following the Vacuum Incident,
Seehawer's coworkers subjected him to insults, name-calling, and occasional non-contact physical
intimidation - all of which, according to Seehawer, began and continued because of the Vacuum
Incident. And after that incident, "cornhole," the only potentially sexually oriented word Seehawer
says his coworkers used, was never used in a sexual context or accompanied by sexually focused
conduct. Finally, Seehawer worked nine years for MWL before the Vacuum Incident occurred, and
he makes no allegation that during he experienced bullying behavior or other offensive conduct.
There is no fact in the record to support a reasonable inference that Seehawer' s coworkers bullied
him "because of sex."
Fmihermore, applying Title VII's protection to facts such as those present here would read
out of the statute the "because of sex" element. Bullying is not necessarily based on sex. See
American Heritage Dictionary ofthe English Language 245 (5th ed. 2011) (defining "bully" as "A
person who is habitually cruel or overbearing, especially to smaller or weaker people."); MerriamWebster Online Dictionary (defining "bully" as "one who is habitually cruel, insulting, or threatening
to others who are weaker, smaller, or in some way vulnerable."). Fitting into the "because of sex"
prohibition conduct such as that alleged here, without evidence such as that present in National
Educ. Ass 'n, would conve1i every instance of mean, spiteful, or intimidating workplace conduct into
a Title VII claim. As Froby makes clear, the statute's protection does not extend so far.
In sum, the record does not support a reasonable inference that the harassment of which
Seehawer complains was "because of sex." Accordingly, his hostile work environment claim is
PAGE 19 - OPINION AND ORDER
dismissed. 6
B.
Retaliation.
Seehawer alleges that MWL retaliated against him for reporting and or opposing his
coworkers' "because-of-sex" harassing conduct. To prevail on a claim of unlawful retaliation, the
plaintiff must prove (1) that he engaged in protected activity; (2) that he was subjected to an adverse
employment action; and, (3) that the adverse employment action was causally connected to the
protected activity. Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464-1465 (9th Cir. 1994).
"Making a formal or informal complaint of discriminatory treatment constitutes protected activity
for purposes of Title VII retaliation." Jernigan v. Alderwoods Grp., Inc., 489 F. Supp. 2d 1180, 1200
(D. Or. 2007) (citing Ray v. Henderson, 217 F. 3d 1234, 1240 (9th Cir. 2000). However, Title VII
protects employees from retaliation only for complaining about the types of discrimination it
prohibits. Harris v. Treasure Canyon Calcuim Co., 132 F. Supp. 3d 1228, 1246 (D. Idaho 2015).
Once a plaintiff makes such a showing, the burden then shifts to the employer to demonstrate
that it had a legitimate, non-retaliatory reason for the adverse action. Id. The Plaintiff then has the
"ultimate burden" of showing that the employer's "proffered reasons are pretextual." Id.
The record does not support a reasonable inference of retaliation for complaining of sexbased harassment. First, while on medical leave in February 2015, Seehawer submitted the Letter
to management. The seven-page, single-spaced, hand-written document begins by noting that" [t]his
all started" with the Vacuum Incident. Seehawer then describes coworker behavior toward him that
is rude, intimidating, hostile, ostracizing, and dismissive. Within those seven pages only one
6
Because the court finds that no question of fact exists that the complained-of conduct
occuned "because of sex," the court does not address the "severe or pervasive" prong of Seehawer' s
hostile work environment claim.
PAGE 20 - OPINION AND ORDER
paragraph on page three and part of a sentence on page four mention the corn-hole name-calling
behavior. Neither of those two references contain or are coupled with descriptions of sex-focused
behavior or words.
Second, Seehawer claims specifically that MWL "discriminated against [him] in the terms
and conditions ofhis employment" when it "[1] failed to stop the harassing behavior, [2] asked [him]
to meet with the harassing co-workers[,] and ... [3] terminated his employment." (Compl.
,r 31;
Resp., at 15.) An adverse employment action is a "a significant change in employment status such
as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits." Burlington Industries v. Ellerth, 524 U.S. 742,
761 (1998). An action is "cognizable as an adverse employment action if it is reasonably likely to
deter employees from engaging in protected activity." Roth v. Cnty. ofMaricopa, 461 F. App 'x 5 89,
590 (9th Cir. 2011 ).
Of the three actions Seehawer identifies, only his termination constitutes "a significant
change in employment status," but he fails to show the requisite causal connection between his
purported protected activity and the termination. Seehawer attributes his termination to his reporting
or opposing harassment by his coworkers, but he overlooks MWL's undisputed willingness to
reinstate him to his job at the conclusion of his FMLA leave - and his own testimony that he
understood his employment would be terminated if he failed to return to work after FMLA leave;
he hoped, instead, MWL would "offer [him] something else." (Seehawer Dep., 23 1:8-23;
233:4-21.). Seehawer was terminated only after, and because, he failed to return to his job.
The record does not support a reasonable inference that MWL terminated Seehawer in
retaliation for engaging in protected activity, and summary judgment is granted on Seehawer' s Title
PAGE 21 - OPINION AND ORDER
VII retaliation claim.
II.
FMLA Interference, Discrimination, or Retaliation
Seehawer asse1is that MWL "denied, interfered with, discriminated, and/or retaliated against"
him for using protected leave under the FMLA. (Campi.
,r
38.) Despite the assertion at oral
argument that the claim was one of retaliation or discrimination (Campi.
,r,r 18-22.), based on the
allegations and facts, Seehawer' s arguments are best understood as an interference claim.
"The FMLA creates two interrelated, substantive employee rights: first, the employee has
a right to use a certain amount of leave for protected reasons, and second, the employee has a right
to return to his or her job or an equivalent job after using protected leave." Bachelder v. Am. W.
Airlines, 259 F.3d 1112, 1122 (9th Cir. 2001) (citing 29 U.S.C. §§ 2612(a), 2614(a)). The FMLA
permits an eligible employee to take up to twelve weeks of unpaid leave during a twelve-month
period to care for the employee's own serious health condition. 29 U.S.C. § 2611(2)(A)(I). Upon
returning from FMLA leave, the employee has the right to be restored to his original position or to
an equivalent position. 29 U.S.C. §§ 2612(a), 2614(a).
The Ninth Circuit recognizes three distinct types of claims under the FMLA: "(1) [§
2615(a)(l)] interference claims, when an employer interferes with an employee's exercise ofrights
under the FMLA; (2) [§ 2615(b)] retaliation claims, when an employer discriminates against an
employee for instituting or participating in proceedings or inquiries under FMLA; and (3) [§
2615(a)(2)] discrimination claims, when an employer discriminates against an employee for
opposing any practice prohibited by the FMLA." Benz v. West Linn Paper Co., 803 F. Supp. 2d
1231, 1249 (D. Or. 2011) (internal citations omitted)(emphasis added). "By their plain meaning, the
anti-retaliation[§ 2615(b)] or anti-discrimination[§ 2615(a)(2)] provisions do not cover" subjecting
PAGE 22 - OPINION AND ORDER
an employee to "negative consequences ... simply because he has usedFMLA leave." Bachelder,
259 F.3d at 1124. "Such action is, instead, covered under§ 2615(a)(l), the provision governing
'[i]nterference [with the e]xercise of rights."' Id.
To prevail on the interference FMLA claim, Seehawer "must prove, as a threshold matter,
that [the] employer violated [FMLA] by interfering with, restraining, or denying" his exercise of
FMLA rights. Benz, 803 F. Supp. 2d at 1250. Under the FMLA, an employee returning to work is
entitled only to "the same position the employee held when leave commenced, or to an equivalent
position with equivalent benefits, pay and other terms and conditions of employment." 29 C.F.R.
§ 825 .214. Because "Congress wanted to ensure that employees' [rights] did not unduly infringe on
employers' needs to operate their businesses efficiently and profitably," Bachelder, 259 F.3d at
1120, the FMLA does not entitle the employee to any rights to which he would not have been
entitled had he not taken leave. 29 U.S.C. § 2614(a)(3)(B). The "right to reinstatement" is
conditioned upon "an expectation that an employee will return to work after the [FMLA] leave
ends." Sanders v. City ofNewport, 657 F. 3d 772, 778 (2011).
It is undisputed that Seehawer requested, and MWL granted him, FMLA leave on December
12, 2014, so that Seehawer could seek treatment for anxiety and depression. MWL met its statutory
obligations by granting Seehawer' s FMLA request, and by allowing him to take the full time allotted
under FMLA. MWL did not deny or restrain his use of FMLA. Moreover, Seehawer never
"participated in proceedings or inquiries," nor did he oppose any act unlawful under FMLA prior to
his termination. Therefore, MWL, did not deny, restrain, discriminate, or retaliate against Seehawer
underFMLA.
The remaining possible violation implicated by Seehawer' s allegations is interference with
PAGE 23 - OPINION AND ORDER
a right granted by FMLA, namely, reinstatement. Seehawer knew that his FMLA leave was
scheduled to end on April 23, 2015, and he remained on FMLA leave until that date. During the
entirety of that leave, MWL held Seehawer's position open for him; MWL did not announce the
position as vacant or filled by someone else. On April 23, 2015, Seehawer reported to MWL but he
did not "work." Instead, he turned-in his keys and picked-up his personal belongings.
The record shows MWL was prepared to reinstate Seehawer to the same position that he held
when his FMLA leave commenced, thereby meeting its reinstatement obligation under the FMLA.
Seehawer asserts he "was not reinstated," for reasons "directly related to conduct associated with his
FMLA leave." (Resp., 17.) Under Sanders, Seehawer's reinstatement right was conditioned upon
his returning to work. MWL offered Seehawer reinstatement and Seehawer rejected it. As such,
Seehawer fails to show any genuine issue of material fact related to the causal relationship between
his termination and interference with his right to return to work.
Finally, Seehawer equates MWL' s decision to decline his request for a different position with
discrimination or retaliation for "complaining." (Seehawer Dep. 244:19-245:17.) The FMLA,
however, does not create new job -related rights; it preserves only those rights the employee would
have retained had the employee not taken leave. Under FMLA, MWL had no obligation to transfer
Seehawer to another position, but only to restore him to his previous position if it remained
available. It did remain available and MWL offered it to Seehawer. The FMLA did not obligate
MWL to find a different position for Seehawer merely because he did not want to return to the
position he held prior to taking FMLA leave.
MWL's motion for summary judgment on Seehawer's FMLA claim therefore is.
\ \\ \ \
PAGE 24 - OPINION AND ORDER
ADA Claim
Finally, Seehawer alleges that MWL violated the ADA, first by failing to provide reasonable
accommodation, and second by wrongfully terminating his employment because of his request for
reasonable accommodation.
To prevail on a claim for wrongful termination under the ADA, Seehawer must establish:
(1) that he was disabled within the meaning of the ADA; (2) that he was a qualified individual with
a disability; and (3) that he was discriminated against because of his disability. Nunes v. Wal-Mart
Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). Often a claim for failure to accommodate and a
claim for wrongful termination due to an employee's disability are "from a practical standpoint, the
same," because "the consequence of the failure to accommodate is ... frequently an unlawful
termination." Humphrey v. Mem 'l Hasps. Ass 'n, 239 F.3d 1128, 1139 (9th Cir. 2001). See also
Snapp v. United Transportation Union, 889 F.3d 1088, 1095 (9th Cir. 2018) (employer's failure to
engage in the interactive process is a violation of the ADA, so long as a reasonable accommodation
would have been possible). "The link between the disability and termination is particularly strong
where it is the employer's failure to reasonably accommodate a known disability that leads to
discharge for performance inadequacies resulting from that disability." Id. at 1140.
Although MWL disputes that Seehawer met the ADA's "qualified individual with a
disability" requirement, there is a question of fact whether Seehawer was "disabled" within the
meaning of the Act and, thus, a "qualified individual with a disability." The record demonstrates that
Seehawer asked MWL for FMLA leave to allow him to address depression and anxiety. MWL thus
knew of his condition, conditions which arguably qualify for protection under the ADA.
Furthermore, instead of engaging Seehawer in the interactive process, MWL merely informed
PAGE 25 - OPINION AND ORDER
him that he could return to his previous position, which would require him to work with and around
the same coworkers whose conduct gave rise to his condition. "Once an employer becomes aware
of the need for accommodation, that employer has a mandatory obligation under the ADA to engage
in an interactive process with the employee to identify and implement appropriate reasonable
accommodations." Humphrey, 239 F.3d at 1137 (citation omitted). MWL made no effort to meet
with Seehawer to discuss his condition and his requests for an accommodation that would allow him
to return to his position. MWL presented no evidence that Seehawer' s suggested accommodations
would have imposed an undue harship or otherwise would not been reasonable under the ADA.
Humphrey, 239 F.3d atl 133; 42 U.S.C. § 12112(b)(5)(A). Accordingly, summary judgment on this
part of Seehawer's ADA claim should be denied. See" Snapp, 889 F.3d at 1095 ("[I]f an employer
fails to engage in good faith in the interactive process, the burden at the summary-judgment phase
shifts to the employer to prove the unavailability of a reasonable accommodation"); Barnett v. US.
Air, Inc., 226 F.3d 1105, 1116 (9th Cir. 2000) ("We further hold that an employer cannot prevail at
the summmy judgment stage if there is a genuine dispute as to whether the employer engaged in
good faith in the interactive process."), rev 'don other grounds, US. Airways v. Barnett, 535 U.S.
391 (2002) (reversing court of appeals and vacating judgment because of collective bargaining
agreement issues).
Similarly, a question of fact exists whether MWL ended Seehawer' s employment because
of an actual or perceived disability. MWL knew that Seehawer had taken medical leave in October
2014, December 2014, and February 2015 to address stress, depression and anxiety. In April 2015,
MWL sent a letter to Seehawer informing him that his employment had been terminated. The
closeness of Seehawer's termination to his protected leaves to address an arguably disabling
PAGE 26 - OPINION AND ORDER
condition is sufficient to raise a question of fact of a causal link. See Bell v. Clackamas County, 341
F.3d 858, 865-66 (9th Cir. 2003)(holding that proximity in time may by itself constitute
circumstantial evidence of retaliation); Pardi v. Kasier Foundation Hospitals, 389 F.3d 840, 850 (9th
Cir. 2004) (in ADA case, temporal proximity between plaintiffs protected activities and employer's
adverse acts sufficiently raises an inference of a causal link).
Because a genuine issue of material fact exists as to whether MWL engaged in an interactive
process as required by the ADA which resulted in Seehawer's termination, MWL's motion for
summary judgement on the ADA claim is denied.
Conclusion
For the reasons explained above, Seehawer fails to show any genuine issue of material fact
as to his Title VII claims or his FMLA claim, but issues of material fact exist as to his ADA claims.
Accordingly, MWL's Motion (ECF No. 29) for Summary Judgment is GRANTED as to his Title
VII and FMLA claims, and DENIED as to his ADA claims.
DATED this
/0~ of March, 2019.
day
cfiOk=
\
HN V. ACOSTA
I J ~'
Unit~ tates Magistrate Judge
PAGE 27 - OPINION AND ORDER
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