Hoppman v. Liberty Mutual Group Inc.

Filing 45

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
VALERIE HOPPMAN,
Plaintiff,
v.

3:17-cv-00402-BR
OPINION AND ORDER

LIBERTY MUTUAL INSURANCE
COMPANY, a foreign business
corporation,
Defendant.
CRAIG A. CRISPIN
ASHLEY A, MARTON
Crispin Employment Lawyers
1834 S.W. 58th Ave., Suite 200
Portland, OR 97221
[phone]
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
[phone]
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
Motion.

BACKGROUND
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
indicated.
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
representatives.

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
complete.

Plaintiff alleges she contacted Cary Henspeter, her

supervisor at that time, and told Henspeter about her anxiety and
stress.
In December 2014 Plaintiff took medical leave for a low-back
condition.
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.

Plaintiff

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
restriction.
On September 11, 2015, Fromm counseled Plaintiff about a
“rush” request for a settlement amount that was in excess of
Fromm’s settlement authority.

Plaintiff responded:

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.

Fromm

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,
2015.
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
Life).

Plaintiff’s request was approved, and she received short-

term disability benefits from October 25, 2016, through April
2016.
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.

Plaintiff stated:

“I am

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

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
accommodations.
On January 24, 2016, Jay called Plaintiff to discuss, among
other things, Plaintiff’s request for accommodation.

Jay told

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.

Defendant

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
disability claim.
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.”

Plaintiff

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
Company.
On February 23, 2017, Defendant terminated Plaintiff’s
employment.
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
and 659A.118.
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.

STANDARDS
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 . . . .

Id.

"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."

In

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
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).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."

Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).

A “mere

disagreement or bald assertion” that a genuine dispute as to a
material fact exists “will not preclude the grant of summary
judgment.”

Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-

1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).

When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.

Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.

Id.

DISCUSSION
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
a week.”

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
release.
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.
I.

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.

See also

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."

42

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
federal [ADA].”).

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.

Samper v.

Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir.
2012).
"[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).
II.

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
week.

Defendant also contends Plaintiff’s inability to work more

than 40 hours per week does not mean she is “substantially
limited.”
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.
A.

The Law
The term “disability” is “construed in favor of broad

coverage of individuals.”

42 U.S.C. § 12102(4)(A).

An

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
population.”

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).

Pursuant

to regulations promulgated by the Equal Employment Opportunity
12 - OPINION AND ORDER

Commission (EEOC):
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
substantially limiting.
29 C.F.R. § 1630.2(j)(1)(ii).

Determining whether an impairment

is substantially limiting “requires an individualized
assessment.”

Id. § 1630.2(j)(1)(iv).

See Weaving v. City of

Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014).
B.

Analysis
Plaintiff contends she qualifies as an individual with

a disability because she suffers from physical and/or mental
impairments.

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
musculoskeletal systems.

FAC ¶ 7.
As noted, on December 7, 2015, Plaintiff requested an
accommodation in her job duties under the ADA “due to
depression.”
On March 4, 2016, Plaintiff completed an Activities
Questionnaire as part of her claim for disability benefits from
Liberty Life.

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
radicular pain.”

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
conditions.

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
issue.

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
impairment.”

Boitnott v. Corning Inc., 669 F.3d 172, 175 (4th

Cir. 2012)(citing cases from the First, Third, Fifth, Sixth, and
Eighth Circuits).

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.”

Id.

The Boitnott

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
classes.”

Id.

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.

For

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).

379 F.

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.

The

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.’”

763 F.3d

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
school.

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.

The

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.

Id.

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”
release.

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.

With this

disposition, the Court need not address any remaining issues.

CONCLUSION
For these reasons, the Court GRANTS Defendants’ Motion for

17 - OPINION AND ORDER

Summary Judgment and, accordingly, DISMISSES this matter with
prejudice.
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