Lee v. Kaiser Foundation Health Plan of the Northwest

Filing 54

ORDER - The Court ADOPTS Judge You's Findings and Recommendation, ECF #43 , except as noted herein. Defendant's motion for summary judgment (ECF #19 ) is GRANTED IN PART. Summary judgment is granted with respect to Plaintiff's claim under the FMLA and denied with respect to Plaintiff's claim under the ADA. Signed on 6/20/2018 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

NORA LEE,

Case No. 3:16-cv-1991-YY
Plaintiff,

ORDER

v.
KAISER FOUNDATION HEALTH PLAN
OF THE NORTHWEST,
Defendant.
Michael H. Simon, District Judge.
United States Magistrate Judge Youlee Yim You issued Findings and Recommendation
in this case on April 9, 2018. ECF 43. Judge You recommended that Defendant’s motion for
summary judgment be granted against Plaintiff’s claim under the Family Medical Leave Act
(“FMLA”) but denied against her claim under the Americans with Disabilities Act (“ADA”).
Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party files objections to a magistrate judge’s findings and recommendations,
“the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).

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For those portions of a magistrate judge’s findings and recommendations to which neither
party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474
U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate’s report to which no objections are filed.”); United
States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court
must review de novo magistrate judge’s findings and recommendations if objection is made, “but
not otherwise”). Although in the absence of objections no review is required, the Act “does not
preclude further review by the district judge[] sua sponte . . . under a de novo or any other
standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ.
P. 72(b) recommend that “[w]hen no timely objection is filed,” the Court review the magistrate
judge’s recommendations for “clear error on the face of the record.”
Both Plaintiff and Defendant timely filed an objection. ECF 49 and 50, respectively.
Plaintiff objects to Judge You’s conclusion that summary judgment should be granted against
Plaintiff’s FMLA claim, and Defendant objects to Judge You’s conclusion that summary
judgment should be denied as to Plaintiff’s ADA claim. The Court thus reviews these issues de
novo. For those portions of Judge You’s Findings and Recommendation to which neither party
has objected, this Court follows the recommendation of the Advisory Committee and reviews
those matters for clear error on the face of the record. No such error is apparent.
Plaintiff objects that an FMLA interference claim may be available when a plaintiff is
forced to use FMLA leave even when there is an FMLA-qualifying reason for that leave. There
are two problems with Plaintiff’s argument. The first is that the authority relied on by Plaintiff is
factually distinguishable. As explained by the Ninth Circuit, a plaintiff may wish to take time off
for a reason that qualifies under the FMLA, but intend not to exercise rights under the FMLA,

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and that might qualify as FMLA interference if FMLA leave is forced by the employer. Escriba
v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1244 (9th Cir. 2014). In Escriba, the employee
took time off and wanted it allocated as vacation, not FMLA leave time, but the employer
nevertheless allocated the time off as FMLA leave time. That is not, however, what Plaintiff is
alleging in this case. She does not assert that she wanted to take time off from work but not have
it allocated as FMLA leave. To the contrary, she is asserting that she did not want to take time
off from work at all, but instead wanted her work schedule adjusted so that she would be able to
work full time with Mondays and Tuesdays off to attend medical treatment, and not be required
to use any FMLA leave, sick leave, or vacation.
Second, courts considering an “involuntarily leave” FMLA interference claim, including
the authorities relied on by Plaintiff such as this Court in Clink v. OHSU, 2014 WL 3850013, at
*6 n.7 (D. Or Aug. 5, 2014), note that such a claim is ripe only after the employee later attempts
to take FMLA leave but is unable to do so because the available leave has been exhausted. See
also ECF 53 at 3-4 n.4 (listing cases). That is not what Plaintiff alleges in this case. The Court
agrees with Judge You that summary judgment should be granted against Plaintiff’s FMLA
claim and adopts that portion of the Findings and Recommendation.
Defendant objects that Judge You erroneously found genuine issues of material fact as to
whether the accommodation offered by Defendant (intermittent FMLA leave) was reasonable,
whether the accommodation requested by Plaintiff (a regular work schedule) was reasonable and
would not cause undue hardship, and whether Defendant acted in good faith. Defendant also
asserts that Judge You made an erroneous finding of fact in determining that Plaintiff’s doctors
recommended that Plaintiff have a regular, routine, and consistent work schedule. Regarding the
latter objection, the Court disagrees with Defendant’s characterization of the record. Defendant

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asserts that Judge You’s factual finding that Plaintiff’s doctors recommended a consistent work
schedule was clearly erroneous and a mischaracterization of the record because Plaintiff’s
doctors merely recommended that Plaintiff have Mondays and Tuesdays off to attend medical
treatment, which Defendant’s provision of intermittent FMLA leave accommodated. There were
several notes from Plaintiff’s doctors. The first note, dated April 9, 2015, stated that Plaintiff
“needs a regular work schedule Wednesday [through Sunday] . . . .” (emphasis added). The
second note, dated April 14, 2015, stated: “It is strongly medically recommended that [Plaintiff]
have a consistent routine weekly schedule with 2 days off in a row . . . .” (emphasis added).
Although a few later notes from Plaintiff’s doctors focus more on the two days off than the
regular and consistent work schedule, they do not repudiate the earlier recommendation for a
regular work schedule. Thus, it was not clear error for Judge You to conclude that Plaintiff’s
doctors recommended a routine and regular work schedule for Plaintiff.
The Court has also reviewed de novo Judge You’s reasoning and analysis regarding
whether the accommodation of intermittent leave offered by Defendant was reasonable, and
adopts that portion of the Findings and Recommendation.1 The Court agrees that there genuine
disputes of material fact on this issue for a jury to resolve. Defendant’s objection that Plaintiff
enjoyed the same benefits and privileges of employment as a matter of law because Plaintiff
accrued sick leave and vacation leave for the hours she worked just like the nondisabled
pharmacists misunderstands Plaintiff’s claim and Judge You’s finding. Judge You did not find
that Plaintiff did not accrue or enjoy benefits differently for hours that Plaintiff worked. Rather,
1

The Court does not, however, adopt the enumerated elements of a prima facie case for
failure to accommodate set out on page seven of the Findings and Recommendation, citing to
Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012). Those four
enumerated elements are not the elements listed in Samper. Because they are not relevant to the
specific objections now before this Court, the Court does not at this time address the issue
further.
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Judge You found that Plaintiff was, because of her disability and the accommodation offered to
her, not given the opportunity to work full time hours like all of the other nondisabled
pharmacists and enjoy the benefits of employment that accompanied full time work hours.
Nondisabled pharmacists were able to accrue more sick leave, not use up their entire bank of sick
leave, and were eligible for supplemental pension contributions. Whether Plaintiff was denied
the ability to enjoy those benefits and privileges of employment by having to use her sick leave
nearly every week presents a question for the jury. Had Plaintiff been given a different
accommodation, such as the regular work schedule she requested, then she would have been able
to work full time hours, would have accrued sick leave the same as other nondisabled
pharmacists, would not have used up her entire sick leave bank, and would have been eligible for
supplemental pension contributions.2
The Court also adopts Judge You’s analysis regarding whether the accommodation
requested by Plaintiff was reasonable and whether Defendant acted in good faith. The record
supports that there are genuine disputes of material fact on these issues. The Court agrees with
Judge You that there is a factual dispute as to whether working rotating shifts was an essential
function of Plaintiff’s job. In addition to the facts discussed by Judge You, the Court notes that
the written job description for a pharmacist does not list rotating shifts as an essential duty. The
requirement of “rotating shifts as required” is included in the list of “major challenges.” This list
also includes, for example: working well with others; demonstrating good rapport; demonstrating
2

The Court also overrules Defendant’s objections that Judge You fails to distinguish the
authority relied on by Defendant. First, the cited authority is not binding on this Court. Second,
Judge You properly noted that those cases did not discuss the “benefits and privileges” prong of
the ADA and the Court is not persuaded by Defendant’s argument that although those courts
were entirely silent on the issue the courts “implicitly” concluded that the prong was met. Court
opinions address the issues raised before the court and discussed in the opinion and are not
persuasive authority for issues not addressed in an opinion.
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flexibility in adjusting one’s personal schedule; and accepting the strengths and weaknesses of
others. Above the list of “major challenges” is a list of “major accountabilities.” This list
includes, for example: consulting with health care practitioners and patients; reviewing,
interpreting, and filling prescriptions; and monitoring, surveying, and inspecting facility
medication storage to ensure safe drug storage. Although neither list specifically indicates it is a
list of the essential functions of the job of pharmacist, the list that begins at the top of the job
description and includes filling prescriptions is more likely to be the list of essential functions of
the job than the list that starts on the third page of the document and includes accepting the
strengths and weaknesses of others. Plaintiff also recites additional support in the record raising
genuine disputes of material fact on this point. ECF 52 at 10-11. Defendant’s objection that
Judge You erred in finding issues of fact that working a rotating shift is an essential function of
the job is without merit. Given that, the remainder of Judge You’s analysis is also adopted.
The Court ADOPTS Judge You’s Findings and Recommendation, ECF 43, except as
noted herein. Defendant’s motion for summary judgment (ECF 19) is GRANTED IN PART.
Summary judgment is granted with respect to Plaintiff’s claim under the FMLA and denied with
respect to Plaintiff’s claim under the ADA.
IT IS SO ORDERED.
DATED this 20th day of June, 2018.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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