Higgins-Walsh v. Bend Storage & Transfer Inc. et al

Filing 75

ORDER: The Court adopts the Findings and Recommendations of Judge Russo 66 . Accordingly, defendant's Motion for Partial Summary Judgment 53 is GRANTED in Part and DENIED in Part. Signed on 9/28/2018 by Judge Ann L. Aiken. (rdr)

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

CYNTHIA HIGGINS-WALSH,

Case No. 6:16-cv-02172-MK

ORDER
Plaintiff,

v.
BEND STORAGE & TRANSFER, INC.,
a domestic business corporation, JAMES
L. LYNCH and NANCY LYNCH,
Individuals.
Defendants.

AIKEN, District Judge:
Magistrate Judge Jolie Russo has filed her Findings and Recommendation ("F&R") (doc.
66) recommending that defendant's Motion for Partial Summary Judgment (doc. 53) should be
GRANTED in part and DENIED in part. The matter is now before me.

See 28 U.S.C. §

636(b)(l)(B) and Fed. R. Civ. P. 72(b).
When either party objects to any portion of a magistrate judge's F&R, the district court
must make a de nova determination of that portion of the magistrate judge's report. See 28

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U.S.C. § 636(b)(l); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d
1309, 1313 (9th Cir. 1981), cert denied, 455 U.S. 920 (1982).
Both parties have filed timely objections to the F&R (docs. 68 and 69) as well as timely
responses to those objections (docs. 70 and 71 ). Thus, I review the F&R de nova.
Plaintiff avers that Judge Russo erred in finding that plaintiffs state statutory claims were
untimely and equitable tolling was not triggered, that the individual defendants could not be
liable for aiding and abetting discrimination, that defendants did not have the requisite number of
employees to trigger a right to reinstatement under Or. Rev. Stat. 659A.043(2)(b)(D), that
plaintiff was not actually disabled regarding her federal disability claim. I find no error in Judge
Russo's through analysis of these issues.
Defendants object to the F&R on the basis of Judge Russo's finding that there is a
question of material fact as to whether plaintiff was perceived as disabled.

Defendants

specifically complain that the F&R did not address whether the perceived injury was transitory
and minor. Having reviewed the objections and the F&R, I agree with Judge Russo and find
there is a question of material fact as to whether defendants regarded plaintiff as disabled.
Regarding defendants' second objection that the F&R does not address their request for
summary judgment as to whether plaintiff sought reinstatement in 2016, I decline to rule on that
issue at this time.

II I
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In sum, I find no error in Judge Russo's F&R. Thus, I adopt Magistrate Judge Russo's
F&R (doc. 66) in its entirety. Accordingly, the Motion for Partial Summary Judgment (doc. 53)
is GRANTED in part and DENIED in part.
IT IS SO ORDERED.
Dated this 28th day of September, 2018.

Ann Aiken
United States District Judge

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