Hoppman v. Liberty Mutual Group Inc.
Opinion and Order. The Court GRANTS Defendants' Motion for Summary Judgment and, accordingly, DISMISSES this matter with prejudice. IT IS SO ORDERED. Signed on 4/12/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
OPINION AND ORDER
LIBERTY MUTUAL INSURANCE
COMPANY, a foreign business
CRAIG A. CRISPIN
ASHLEY A, MARTON
Crispin Employment Lawyers
1834 S.W. 58th Ave., Suite 200
Portland, OR 97221
Attorneys for Plaintiff
JAMES M. BARRETT
KELLY S. RIGGS
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
222 S.W. Columbia St., Suite 1500
Portland, OR 97201
Attorneys for Defendant
BROWN, Senior Judge.
This matter comes before the Court on Defendant Liberty
Mutual Insurance Company’s Motion (#24) for Summary Judgment.
1 - OPINION AND ORDER
The Court concludes the record is sufficiently developed, and,
therefore, oral argument is unnecessary.
For the reasons that follow, the Court GRANTS Defendant’s
The following facts are taken from the Joint Statement of
Agreed Facts (#44), pleadings, and summary-judgment materials
filed by the parties and are undisputed unless otherwise
In 2003 Plaintiff Valerie Hoppman began working for Safeco
as a Senior Claims Representative.
In 2006 Plaintiff began
working for Safeco remotely from home Monday through Friday from
8:00 a.m. to 4:30 p.m.
In 2009 Safeco was acquired by Defendant.
Plaintiff continued working as a Complex Claims Resolution
Specialist for Defendant.
Plaintiff also continued to work
remotely from home and was assigned to a team of claims
Plaintiff reported to a Claims Team Manager who
provided direction primarily by telephone or email.
In November 2014 Plaintiff contends she began feeling
“overwhelmed” with the amount of work she was expected to
Plaintiff alleges she contacted Cary Henspeter, her
supervisor at that time, and told Henspeter about her anxiety and
In December 2014 Plaintiff took medical leave for a low-back
2 - OPINION AND ORDER
In January 19, 2015, Plaintiff’s treating physician,
Kristina Harp, M.D., signed a medical note indicating Plaintiff
was able to return to work on February 1, 2015, and “may work 8
[hours a] day with scheduled breaks.”
In February 2015 Plaintiff returned to work.
contends when she returned to work she advised Henspeter of her
work restrictions, i.e., that she was only permitted to work up
to 40 hours per week with scheduled breaks.
Henspeter does not
recall receiving Dr. Harper’s note or otherwise learning that
Plaintiff had any work restrictions.
In July 2015 Plaintiff was transferred to a new Claims Team
Manager, Donna Fromm.
Although Fromm was aware of Plaintiff’s
prior medical leave, Defendant contends Fromm was not aware of
Plaintiff having any work restrictions at that time and Plaintiff
does not recall telling Fromm about her 40-hour work-week
On September 11, 2015, Fromm counseled Plaintiff about a
“rush” request for a settlement amount that was in excess of
Fromm’s settlement authority.
Thanks. I am trying to keep up the best I can. There
is just too much work and not enough time. When I
returned to work, my doctors said it was ok to work up
to 40 hours a week with scheduled breaks. Well, my
workload demands are far in excess of 40 hours a week.
I don’t know what the solution is, but this situation
is pretty discouraging.
On October 8, 2015, Plaintiff again emailed Fromm about her
workload and asked to be “taken off claims” for two weeks.
complied with Plaintiff’s request and did not assign any new
3 - OPINION AND ORDER
claims to her during that time.
Following Plaintiff’s email on October 8, 2015, Plaintiff
had only general conversations with Fromm about her work.
On October 22, 2015, Dr. Harp took Plaintiff off work “due
to medical issues” from October 23, 2015, through November 22,
On October 25, 2015, Plaintiff applied for short-term
disability benefits through Defendant’s disability plan
administered by Liberty Life Assurance Company of Boston (Liberty
Plaintiff’s request was approved, and she received short-
term disability benefits from October 25, 2016, through April
During this medical leave Plaintiff periodically reported to
Fromm that her doctor had not released her to return to work.
The parties agree Plaintiff made those reports on November 20,
2015; December 7, 2015; December 31, 2015; January 29, 2016; and
February 29, 2016.
On December 7, 2015, Plaintiff sent an email to Laurie
Whalen, a Leave Associate in Defendant’s Human Resources Support
Center, and copied Fromm on the email.
requesting accommodations regarding my job duties under the ADA
due to depression which has been diagnosed by my doctor.
medical records have already been provided.”
this was a request for accommodation.
The parties agree
Whalen advised Plaintiff
to contact Allyson Jay, an Employee Relations Specialist for
Defendant, regarding “the option for an ADA.”
4 - OPINION AND ORDER
On December 9, 2015, Plaintiff contacted Jay about the
December 7, 2015, request and Jay responded:
It is my understanding that you currently are out on a
pending STD [short term disability] claim? Do you have
an anticipated return to work date? Certainly we are
open to talking through what would help you performance
[sic] the functions of your role as a Claims Specialist
once you are able to return to work but first and
foremost we want you to be well while out on leave.
You are more than welcome to contact me if you would
like to talk further.
On December 31, 2015, Plaintiff responded to Jay:
It is my understanding that I am currently on short
term disability. I anticipate that my doctor may
release me to return to work after the first of the
year. I will discuss potential job modifications with
my doctor to help prevent relapse. I am open to any
suggestions you may have with regard to reasonable
On January 24, 2016, Jay called Plaintiff to discuss, among
other things, Plaintiff’s request for accommodation.
Plaintiff that a discussion of an accommodation was premature
because Plaintiff had not been released to work by her doctor and
did not have any expected return-to-work date.
In March 2016 Plaintiff applied for long-term disability
benefits through Liberty Life.
On April 21, 2016, Liberty Life denied Plaintiff’s request
for long-term disability and stated:
The Long Term Disability policy insures full time
employee’s [sic] working a minimum of 37.5 hours a
week. Dr. Harp has confirmed that you are capable of
working 40 hours per week. The medical records do not
support that you are unable from a physical or mental
standpoint to perform the material and substantial
duties of your occupation on a full time basis, thus,
you do not meet the definition of disability and your
claims has been denied.
5 - OPINION AND ORDER
On April 28, 2016, Plaintiff emailed Jay about the status of
her long-term disability claim and stated:
I have not received a letter from the Disability
adjuster regarding the Long Term Disability claim
either. My medical records have already been provided.
If there is something additional you need, please let
me know. As you are aware, I have made previous
requests for reasonable accommodations concerning my
job and I have suggested discussing aspects of the
workload, the case pending, and the paralegal work
currently required. I am open to discussing any other
suggestions regarding potential accommodations.
Jay responded to Plaintiff that the letter regarding Plaintiff’s
long-term disability claim would come from Boston and could take
a few days.
Jay further stated:
In concerns [sic] to the request for ADA, we would look
at those options once your LTD appeal is complete since
you stated you were planning on appealing. You stated
you[r] Doctor has not released you so I don’t think we
are at the point of reviewing that unless he has in
fact released you.
On April 28, 2016, Defendant notified Plaintiff it “would
begin the recruiting process shortly” for Plaintiff’s position
because Plaintiff had been off from work for over 26 weeks and,
therefore, Defendant was allowed to fill her position.
also advised Plaintiff:
Please notify us when you are able to return to work.
If we have filled your position, we will determine if
we have an available position for which you qualify.
If we do not, you may be eligible for severance as
outlined in the Severance Pay Plan.
On June 27, 2016, Plaintiff filed a complaint with the
Oregon Bureau of Labor and Industries (BOLI) and alleged
Defendant had engaged in “unlawful employment practices on the
basis of [her] sex, disability and [her] invocation of the Oregon
6 - OPINION AND ORDER
Family Leave Act (OFLA)” and that Defendant had subjected her to
“different terms and conditions, a hostile work environment,
failed to engage in the interactive process and filled [her]
position while [she] was on medical leave of absence.”
On August 8, 2016, Defendant responded to Plaintiff’s BOLI
complaint and stated Plaintiff had not been released by her
doctor to return to work, her employment had not been terminated,
and she was on leave pending resolution of her long-term
In September 2016 BOLI dismissed Plaintiff’s complaint.
On November 21, 2016, Dr. Harp, Plaintiff’s treating
physician, provided a work release for “full duty 40 [hour] work
week with AM break PM break and scheduled lunch.”
admits she did not provide this release to Defendant because she
felt “it was too late.”
In January 2017 Plaintiff began work as a Senior Claims
Examiner with a different employer, Philadelphia Insurance
On February 23, 2017, Defendant terminated Plaintiff’s
On March 13, 2017, Plaintiff filed a Complaint in this Court
in which she alleges Defendant failed to accommodate her
disability under the Americans with Disabilities Act (ADA), 42
U.S.C. § 12112(5)(a), and the Oregon counterpart to the ADA
(referred to herein as OADA), Oregon Revised Statutes §§ 659A.112
7 - OPINION AND ORDER
On March 28, 2017, Plaintiff filed her First Amended
Complaint (FAC) in which she corrected the name of Defendant.
On January 12, 2018, Defendant filed its Motion for Summary
Judgment as to both of Plaintiff’s claims.
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Washington Mut. Ins. v. United
States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).
See also Fed. R.
The moving party must show the absence of a
dispute as to a material fact.
Rivera v. Philip Morris, Inc.,
395 F.3d 1142, 1146 (9th Cir. 2005).
In response to a properly
supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
one . . . .
"This burden is not a light
The non-moving party must do more than show there is
some 'metaphysical doubt' as to the material facts at issue."
re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
8 - OPINION AND ORDER
The court must draw all
reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
Easter v. Am. W. Fin.,
381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).
disagreement or bald assertion” that a genuine dispute as to a
material fact exists “will not preclude the grant of summary
Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-
1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
When the nonmoving party's claims are factually
implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
LVRC Holdings LLC
v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.
Miller v. Glenn Miller
Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
Defendant contends it is entitled to summary judgment on
each of Plaintiff’s claims on the grounds that Plaintiff does not
have a qualifying “disability” and Defendant does not have an
9 - OPINION AND ORDER
obligation under either federal or state law to accommodate an
employee’s request for “a work schedule of no more than 40 hours
Defendant also contends it was not required to engage
in the interactive process until Plaintiff provided a work
release from her doctor, and, according to Defendant, Plaintiff
did not cooperate in the interactive process by providing such a
Plaintiff, in turn, contends she is a qualified individual
with a disability and asserts Defendant refused to allow the
interactive process to begin in violation of Defendant’s
obligations under both federal and state law.
Standards ADA/OADA Claims
Both the ADA and OADA ensure fair opportunities in the
workplace for qualified individuals with disabilities by
prohibiting discrimination against those individuals and by
requiring employers to reasonably accommodate their disabilities.
42 U.S.C. § 12112(a); Or. Rev. Stats. § 659A.118.
Sutton v. United Air Lines, Inc., 527 U.S. 471, 477-78 (1999).
The ADA provides in pertinent part:
No covered entity shall discriminate against a
qualified individual with a disability because of
the disability of such individual in regard to job
application procedures, the hiring, advancement,
or discharge of employees, employee compensation,
job training, and other terms, conditions, and
privileges of employment.
42 U.S.C. § 12112(a).
The term "discriminate" includes "not making reasonable
10 - OPINION AND ORDER
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an
applicant or employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship."
U.S.C. § 12112(b)(5)(A).
The prima facie elements of a failure-to-accommodate claim
under the ADA and the OADA are the same.
See Or. Rev. Stats.
§ 659A.139(1)(OADA “shall be construed to the extent possible in
a manner that is consistent with any similar provision of the
See also Mayo v. PCC Structurals, Inc., 795
F.3d 941, 944 (9th Cir. 2015).
To state a prima facie case for
failure to accommodate under the ADA, Plaintiff must allege she
(1) is disabled within the meaning of the ADA, (2) is a qualified
individual able to perform the essential functions of the job
with reasonable accommodation, and (3) suffered an adverse
employment action because of her disability.
Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir.
"[A] plaintiff in an ADA case at all times bears the
ultimate burden of establishing . . . he has been the victim of
illegal discrimination based on his disability."
Knight v. U.S.
Food and Drug Admin., No. 3:13-cv-01347-BR, 2013 WL 6530939, at
*5 (D. Or. Dec. 12, 2013).
Plaintiff has not shown she has a qualifying disability that
substantially limits a major life activity.
11 - OPINION AND ORDER
Defendant contends Plaintiff does not have a qualifying
disability for purposes of the ADA/ODA because the undisputed
factual record establishes she is able to work a 40-hour work
Defendant also contends Plaintiff’s inability to work more
than 40 hours per week does not mean she is “substantially
Plaintiff, in turn, contends her disability is not limited
to a 40-hour work restriction, and there is at least a genuine
issue of material fact regarding her disability that precludes
Defendant’s Motion for Summary Judgment.
The term “disability” is “construed in favor of broad
coverage of individuals.”
42 U.S.C. § 12102(4)(A).
individual is “disabled” within the meaning of the ADA/ODA if she
has "a physical or mental impairment that substantially limits
one or more major life activities" or if her employer regards her
"as having such an impairment."
Or. Rev. Stats. §659A.104(1)(a).
42 U.S.C. § 12102(1)(A);
A “substantial limitation” is
one that “limits the ability of an individual to perform a major
life activity as compared to most people in the general
29 C.F.R. § 1630.2(j)(1)(ii).
See also Or. Rev.
Stats. § 659A.104(3).
“An impairment that substantially limits one major life
activity need not limit other major life activities in order to
be considered a disability.”
42 U.S.C. § 12102(4)(C).
to regulations promulgated by the Equal Employment Opportunity
12 - OPINION AND ORDER
An impairment is a disability . . . if it
substantially limits the ability of an individual
to perform a major life activity as compared to
most people in the general population. An
impairment need not prevent, or significantly or
severely restrict, the individual from performing
a major life activity in order to be considered
29 C.F.R. § 1630.2(j)(1)(ii).
Determining whether an impairment
is substantially limiting “requires an individualized
Id. § 1630.2(j)(1)(iv).
See Weaving v. City of
Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014).
Plaintiff contends she qualifies as an individual with
a disability because she suffers from physical and/or mental
For example, Plaintiff alleges in her FAC that she
suffers from one or more physical and/or mental
impairments, which substantially affect one or
more major life activities, including but not
limited to communicating, speaking, writing, selfcare, walking, balance maintenance, manual
dexterity, interacting with others, and/or
working. Plaintiff’s impairments substantially
affect one or more major bodily functions,
including her neurological, brain, and
FAC ¶ 7.
As noted, on December 7, 2015, Plaintiff requested an
accommodation in her job duties under the ADA “due to
On March 4, 2016, Plaintiff completed an Activities
Questionnaire as part of her claim for disability benefits from
Plaintiff stated she suffers from “severe
13 - OPINION AND ORDER
degenerative disc disease - lumbar,” and she can only sit for one
or two hours, stand for one hour, and walk for 30 to 60 minutes.
She also stated she experiences “multiple headaches,” which
include migraines and results in nausea that “prevent her from
engaging in gainful employment.”
Plaintiff also points to the
findings of Defendant’s reviewing physician that Plaintiff “had a
history of migraine headaches, low back pain and right sided
Plaintiff, however, has not presented for the
record on this Motion any evidence of a substantial limitation or
restriction on her daily activities based on any of these
In fact, the record only reflects she is limited to
working a 40-hour work week.
The issue, therefore, is whether
Plaintiff’s inability to work overtime (i.e., more than 40 hours
per week) constitutes a disability for purposes of the ADA/OADA.
The Ninth Circuit has not explicitly addressed this
Other courts, however, have held an employee is not
“substantially” limited under the ADA if she “can handle a forty
hour work week but is incapable of performing overtime due to an
Boitnott v. Corning Inc., 669 F.3d 172, 175 (4th
Cir. 2012)(citing cases from the First, Third, Fifth, Sixth, and
In Boitnott the Fourth Circuit concluded “an
employee under the ADA is not ‘substantially’ limited if he or
she can handle a forty hour work week but is incapable of
performing overtime due to an impairment.”
court found there was not any evidence that the plaintiff’s
“inability to work overtime significantly restricted his ability
14 - OPINION AND ORDER
to perform a class of jobs or a broad range of jobs in various
Although the Ninth Circuit has not addressed this exact
issue, it has determined a plaintiff must establish that her
disability substantially limits her ability to work.
example, in Neal v. Kraft Foods Global, Inc., the Ninth Circuit
concluded there was not a triable issue of material fact as to
whether the plaintiff was disabled because the plaintiff did not
provide any evidence of a substantial limitation in her ability
to work from which a jury could find she was disabled.
App’x 632, 634 (9th Cir. 2010).
The parties agreed the plaintiff
had a physical impairment that limited her major life activities
of sitting, standing, and walking, and the evidence showed the
plaintiff should limit her sitting to six hours, standing to two
hours, and walking to four hours in an eight-hour work day.
Ninth Circuit noted the only issue was whether the plaintiff’s
limitations in these activities was substantial, and the court
pointed out that there was not any evidence in the record that
established the plaintiff was restricted in her work activities.
Based on the record the court concluded there was not a genuine
dispute of material fact, and the employer, therefore, was
entitled to judgment as a matter of law.
In Weaving v. City of Hillsboro the Ninth Circuit
similarly rejected a claim by a police officer that his diagnosis
of ADHD was a qualifying disability under the ADA because the
evidence showed the officer “was in many respects a skilled
15 - OPINION AND ORDER
police officer” and was not “limited in his ability to work
compared to ‘most people in the general population.’”
1106, 1112 (9th Cir. 2014).
In Wong v. Regents of University of California the
Ninth Circuit also concluded “merely having an impairment does
not make one disabled for purposes of the ADA.”
1067 (9th Cir. 2005).
410 F.3d 1052,
In Wong the plaintiff asserted he was
disabled because he had a learning disability that prevented him
from meeting the academic requirements at the defendant’s medical
The Ninth Circuit noted the plaintiff’s contention that
he was disabled “in the activity of learning” was “implausible”
in light of his academic achievements in the first two years of
medical school without any accommodation.
Id. at 1066.
court also concluded the plaintiff did not present sufficient
evidence of a substantial limitation of a major activity of daily
living to establish a triable issue of fact.
Here Plaintiff’s treating physician indicated in
January 2015 that Plaintiff was able to return to work limited to
eight-hour work days with scheduled breaks.
It is significant
that Dr. Harper did not set out any other limitations and, in
fact, Dr. Harper testified she considered this a “full duty”
As noted, in February 2015 Plaintiff returned to work.
There is not any evidence in this record that any physician
limited Plaintiff’s work due to depression.
Although Plaintiff may have some disabilities, the
record on this Motion does not reflect any such disabilities
16 - OPINION AND ORDER
substantially limit her daily activities to the extent that she
cannot work a 40-hour work week.
As noted, Plaintiff is
incapable of performing overtime due to an impairment, but,
nevertheless, she is able to perform her regular job duties
during an eight-hour day.
In fact, Plaintiff testified she is
currently employed in a similar position with another insurance
company, has the same health conditions and limitations that she
had when she worked for Defendant, and is able to perform the
duties of her current job.
On this record the Court concludes there is not a
genuine issue of material fact from which a reasonable jury could
conclude Plaintiff is disabled for purposes of the ADA or OADA.
Accordingly, the Court GRANTS Defendant’s Motion for Summary
Judgment and DISMISSES Plaintiff’s Complaint.
disposition, the Court need not address any remaining issues.
For these reasons, the Court GRANTS Defendants’ Motion for
17 - OPINION AND ORDER
Summary Judgment and, accordingly, DISMISSES this matter with
IT IS SO ORDERED.
DATED this 12th day of April, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
18 - OPINION AND ORDER
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