Le Roux v. Central Oregon Truck Company, Inc.
Filing
37
OPINION AND ORDER: Defendant's motion for summary judgment 20 is DENIED. The parties' Pretrial Order is due thirty (30) days from the date of this Opinion. Signed on 6/28/2018 by Magistrate Judge Jolie A. Russo. (jk)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
MICHAEL LE ROUX,
Case No. 6:17-cv-00533-JR
Plaintiff,
OPINION AND ORDER
v.
CENTRAL OREGON TRUCK COMPANY,
INC., an Oregon Corporation,
Defendant.
____________________________________
RUSSO, Magistrate Judge:
Defendant Central Oregon Truck Company, Inc., (“COTC”) moves for summary
judgment on plaintiff Michael Le Roux’s claims pursuant to Fed. R. Civ. P. 56. For the reasons
set forth below, defendant’s motion is denied.
BACKGROUND
Plaintiff began working for COTC in January 2015 as a commercial truck driver. Compl.
¶ 6 (doc. 1). Throughout his first year at COTC plaintiff did not receive a single citation. Le
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Roux Decl. ¶ 8 (doc. 26). In January 2016, plaintiff was assigned trailer 413Q which was
approximately 10 years old. Le Roux Decl. ¶ 14 (doc. 26). Throughout the three months driving
trailer 413Q plaintiff received six citations. Compl. ¶ 10 (doc. 1). Plaintiff repeatedly reported
problems with trailer 413Q to his supervisors in the daily Driver Vehicle Inspection Reports
(“DVIRs”) and in emails. Le Roux Decl. ¶¶ 15-29. (doc. 26).
On April 7, 2016, plaintiff was ticketed for being overweight on the axles. Le Roux Decl.
¶ 34. (doc. 26). Plaintiff reported on his April 7, 2016, DVIR that the “truck, trailer, and load
were difficult to weigh due to changing air pressures on [the] tag axles.” Id. After dropping off
the load, plaintiff wrote an email in which he informed his employers he was “not hauling any
more loads with this truck or trailer until the issues [were] corrected.” Le Roux Decl. Ex. 12, at 2
(doc. 26-12). The COTC dispatcher, Ms. Cantrell, responded with a message indicating plaintiff
would not be permitted to return with an empty truck and instructed him to pick up a load in
Clarkston, Washington. Le Roux Decl. Ex. 13, at 1 (doc. 26-13). On the morning of April 8,
2016, plaintiff spoke with his supervisor, who assured plaintiff he would find a lighter load for
him so he would not be overweight on the axles. Le Roux Decl. ¶ 37. (doc. 26).
Ms. Cantrell dispatched the details for the lighter load to plaintiff. Le Roux Decl. Ex. 14
(doc. 26-14). In the dispatch Ms. Cantrell listed the pick-up time as 3:30 PM. Le Roux Decl. Ex.
14, at 1 (doc. 26-14). The correct pick-up time was 3:00 PM. Plaintiff arrived at Bennett Lumber
around 3:03 or 3:04 PM, nearly 30 minutes before he was instructed to be there. Bennett Decl.
Ex. 9, at 12 (doc. 27-9). Upon his arrival, plaintiff found that all of the Bennett Lumber
employees had gone home and the lumber yard was locked and deserted. Bennett Decl. Ex. 9, at
12 (doc. 27-9). When he contacted his employer he was informed he should spend the night in
Clarkston, Washington, rent a car on Saturday morning and drive 350 miles to return home and
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then drive 350 miles back to Clarkston by Monday morning to pick up the load at Bennett
Lumber. Le Roux Decl. ¶ 41 (doc. 26). It is unclear whether COTC would have reimbursed
plaintiff for the costs of the hotel room and rental car. At this point plaintiff concluded his
employer was “trying to frustrate [him] to the point that [he] would quit.” Le Roux Decl. ¶ 41
(doc. 26). Plaintiff sent in his resignation and informed his supervisors he would return the truck
that evening. Le Roux Decl. ¶ 42 (doc. 26). COTC employees called plaintiff and left voicemails
threatening him with jail if he did not stop the truck and turn it around. Le Roux Decl. ¶ 43 (doc.
26); Bennett Decl. Ex. 5, at 7-8 (doc. 27-5).
Throughout his employment, plaintiff repeatedly requested that his employer repair
trailer 413Q. Two days after plaintiff resigned, COTC began significant efforts to repair the
trailer. Bennett Decl. Ex 6, at 15 (doc. 27-6). Within seven weeks of plaintiff’s resignation,
COTC had spent almost four thousand dollars on repairs to trailer 413Q. See Bennett Decl. Ex. 6
(doc. 27-6). Shortly thereafter, the trailer was placed in storage and no longer used. Bennett Decl.
Ex. 13, at 26 (doc. 27-13).
On April 4, 2017, plaintiff filed a complaint against defendant asserting claims of
retaliation for reporting safety concerns under the Surface Transportation Assistant Act
(“STAA”); retaliation for refusing to operate a commercial vehicle that violates a safety standard
under the STAA; and whistleblower retaliation under Oregon law. Compl. (doc. 1).
STANDARD OF REVIEW
Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, affidavits, and admissions on file, if any, show “there is no genuine dispute as to
any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc.
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v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such
that a reasonable jury could return a verdict for the nonmoving party determines the authenticity
of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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, 322–23 (1986). If the moving party shows
the absence of a genuine issue of material fact, the nonmoving party must go beyond the
pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all
reasonable doubts as to the existence of genuine issues of material fact should be resolved
against the moving party; and (2) all inferences to be drawn from the underlying facts must be
viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630–31.
DISCUSSION
Defendant argues summary judgment is proper as to plaintiff’s claims for relief, and that
partial summary judgment is proper on each of plaintiff’s claims for lost wages and benefits.
I. Retaliation for Reporting a Violation of a Safety Regulation
Plaintiff alleges he was retaliated against for reporting safety concerns under the STAA.
49 U.S.C. § 31105(a)(1)(A). The STAA prohibits an employer from discharging, disciplining, or
discriminating against an employee regarding pay, terms, or privileges of employment because:
the employee, or another person at the employee’s request, has filed a
complaint or begun a proceeding related to a violation of a commercial
motor vehicle safety or security regulation, standard, or order, or has
testified or will testify in such a proceeding[.]
49 U.S.C. § 31105(a)(1)(A)(i). Defendant argues that plaintiff’s complaint does not allege that
any commercial motor vehicle safety or security regulation has been violated.
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Plaintiff, however, alleges that defendant violated 49 C.F.R. § 396.3(a) which requires
that “[e]very motor carrier . . . must systematically inspect, repair, and maintain, or cause to be
systematically inspected, repaired, and maintained, all motor vehicles . . . subject to its control.”
Plaintiff also alleges defendant violated 49 C.F.R. § 396.11(3) which directs that “[p]rior to
requiring or permitting a driver to operate a vehicle, every motor carrier . . . shall repair any
defect or deficiency listed on the driver vehicle inspection report which would be likely to affect
the safety or operation of the vehicle.” Plaintiff further alleges that on February 25, 2016, he was
ticketed because the trailer was in violation of three separate safety regulations: overweight on
the axles in violation of 49 C.F.R. § 392.2; side hose chafing in violation of 49 C.F.R.
393.45(b)(2); and driver side brake chamber leaking air in violation of 49 C.F.R. § 396.3(a)(1).
See Le Roux Decl. Ex. 5, at 2 (doc. 26-5). Plaintiff reported these defects in his DVIRs and
repeated repair requests.
Plaintiff has fulfilled his obligation to file “a complaint . . . related to a violation of a
commercial motor vehicle safety or security regulation, standard, or order,” because internal
reports to an employer are sufficient to qualify as “complaints” under 49 U.S.C.
§ 31105(a)(1)(A). See Clean Harbors Envtl. Servs. v. Herman, 146 F.3d 12, 22–23 (1st Cir.
1998); Moon v. Transport Drivers, Inc., 836 F.2d 226, 228–29 (6th Cir. 1987); Yellow Freight
Systems, Inc. v. Reich, 38 F.3d 76, 83–84 (2nd Cir. 1994); Manske v. UPS Cartage Servs., Inc.,
870 F.Supp.2d 185, 203–05 (D. Me. 2012).
Defendant next argues there was no evidence of any retaliation against plaintiff because
none of the alleged adverse actions rise to the level of “material adversity” required to
demonstrate retaliation. Young Bolek v. City of Hillsboro, 2016 WL 9455411, *12 (D. Or.
2016). “To be materially adverse, an action need not rise to the level of an ultimate employee
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action, such as discharge. However, actions such as a lateral transfer, an unfavorable job
reference, or a change in work schedule may be sufficiently severe” to qualify as materially
adverse. Young Bolek, 2016 WL 9455411 at *12 (citing Ray v. Henderson, 217 F.3d 1234,
1242–43 (9th Cir. 2000)). “The requirement to prove ‘material’ adversity precludes claims
grounded in ‘petty slights, minor annoyances, and simple lack of good manners’ that do not rise
to a level that will deter an employee from lodging a report.” Young Bolek, 2016 WL 9455411 at
*12 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
Plaintiff asserts the following actions amounted to retaliation: failure to provide a safe
trailer; failure to reimburse him for his tickets and legal expenses caused by driving an unsafe
trailer; sending him to Clarkston, Washington for a load defendant knew would not be available;
threatening him with police intervention and jail; and failing to rehire him or make him eligible
for rehire. Plaintiff argues the defendant created these discriminatory conditions with the intent
to cause plaintiff to quit which amounted to constructive termination. Compl. ¶ 6, 23 (doc. 1).
Defendant argues there is no evidence the trailer was unsafe; rather, “the issues plaintiff
was allegedly experiencing with his trailer were mechanical issues, not safety issues.” Def.’s
Mot. Summ. J. 12 (doc. 20). The record contains evidence that at least some of the problems with
the trailer were safety issues. Specifically, on February 25, 2016, plaintiff was ticketed because
the trailer was in violation of three safety regulations. See Le Roux Decl. Ex. 5, at 2 (doc. 26-5).
In particular, one of the brake chambers was leaking air in violation of 49 C.F.R. § 396.3(a)(1),
which requires that “[p]arts and accessories shall be in safe and proper operating condition at all
times.” As such, there is evidence the mechanical issues were also, at least to some extent, safety
issues.
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Defendant next argues its actions were not retaliatory because “COTC was trying to help
plaintiff remedy his perceived trailer issues.” Def.’s Mot. Summ. J. 13 (doc. 20). During the
three months plaintiff reported problems with the trailer, there were only three attempts at
making repairs: in February at a cost of $95.00, in March at a cost of $493.41, and in April at a
cost of $105.72. See Bennett Decl. Ex. 6, at 3, 14, 17 (doc. 27-6). The day after plaintiff
resigned, however, defendant spent $1,113.69 on trailer repairs. Bennett Decl. Ex 6, at 15 (doc.
27-6). Within two months of plaintiff’s resignation, defendant spent $3,714.90 on trailer repairs.
See Bennett Decl. Ex. 6 (doc. 27-6). On July 11, 2016, despite several repair attempts, the trailer
was removed from COTC’s fleet and placed in storage. Bennett Decl. Ex. 13, at 26 (doc. 27-13).
Based on these facts, a reasonable jury could conclude defendant did not make a serious effort to
remedy the issues with the trailer until after plaintiff resigned, and even after spending nearly
$4,000 on repairs, defendant was unable to make the trailer road worthy.
Defendant also argues that plaintiff was not entitled to be reimbursed for the traffic
tickets because it is the driver’s responsibility to weigh each load and the company does not
reimburse drivers for tickets due to the driver’s error. Although plaintiff may have had a duty to
weigh every load, he indicated he was unable to get an accurate reading on the weight over the
axles because the air gauges were malfunctioning. Le Roux Decl. ¶ 34 (doc. 26). Additionally,
plaintiff was not cited exclusively for the trailer being overweight, he was also cited for side hose
chafing in violation of 49 C.F.R. § 393.45(b)(2), and the driver side brake chamber leaking air in
violation of 49 C.F.R. § 396.3(a)(1). Defendant has not argued that such violations were a result
of driver error and there is no indication plaintiff was reimbursed for those citations.
Defendant contends plaintiff was not sent to Clarkston, Washington in order to
intentionally strand him; rather, there was a miscommunication. Defendant asserts there is
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“absolutely no evidence” that sending plaintiff to Clarkston was a deliberate “set up.” Def.’s
Mot. Summ. J. 13 (doc. 20); Def’s Reply 3 (doc. 33). To the contrary, there is ample
circumstantial evidence to support plaintiff’s allegation. Even though defendant worked with
Bennett Lumber almost daily, Ms. Cantrell officially dispatched plaintiff with a pick-up time of
3:30 PM, despite the fact she knew Bennett Lumber closed at 3:00 PM. Bennett Decl. Ex. 7, at 6,
8, 14, 16-17 (doc. 27-7). Ms. Cantrell testified the incorrect arrival time of 3:30 PM could have
been “automatically populated” in the system. Bennett Decl. Ex. 7, at 16-17 (doc. 27-7). Her
supervisor, however, testified the pick-up time in defendant’s dispatch system must be manually
entered by the dispatcher and cannot, in fact, be automatically populated. Bennett Decl. Ex. 10,
at 22-23 (doc. 27-10). At some point earlier in the week Ms. Cantrell indicated the pick-up time
might be 3:00 PM; however, on the day plaintiff drove to Clarkston, Ms. Cantrell sent him the
incorrect pick-up time of 3:30 PM. Le Roux Decl. Ex. 14, at 1 (doc. 26-14).
Although it is part of Ms. Cantrell’s job to communicate with the shipper when a driver is
running late to let them know the truck will be arriving shortly, she could not recall whether she
had done so when plaintiff was on his way to Bennett Lumber and she could not explain why she
would not have done so. Bennett Decl. Ex. 7, at 13-14 (doc. 27-7). Plaintiff additionally testified
Ms. Cantrell sounded amused when he called to inform her there was no load ready for pick up
at Bennett Lumber. Decl. Le Roux ¶ 40 (doc. 26).
The Court also notes it seems odd that every Bennett Lumber employee had left the yard
by plaintiff’s arrival time of 3:03 PM. According to defendant, Bennett Lumber was expecting
plaintiff to pick up a load of lumber at 3:00 PM. As such, they would be expecting to stay past
3:00 PM to load the truck, yet when plaintiff arrived at 3:03 PM, every employee was gone. This
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is further circumstantial evidence supporting plaintiff’s contention that Bennett Lumber had
never scheduled a load for pick up at 3:00 PM on April 8, 2016.
With regard to the threats to have plaintiff arrested, defendant argues that “informing
plaintiff of the consequences he would face if he did not stop the truck [was] consistent with
COTC policy and not retaliatory.” Def.’s Mot. Summ. J. 15 (doc. 20) (citing Hellman v.
Weisberg, 360 Fed.Appx. 776 (9th Cir. 2009)). Notably, COTC does not have an official written
policy for calling the police and reporting a truck stolen when a driver returns with an empty
truck without permission. Bennett Decl. Ex. 13, at 19-20 (doc. 27-13).
In Hellman, the court held the fact the employer indicated he “wanted to fire [the
employee] and have her criminally prosecuted” was insufficient to constitute material adversity
because “the mere threat of termination does not constitute an adverse employment action.”
Hellman v. Weisberg, 360 Fed.Appx. 776, 779 (9th Cir. 2009) (emphasis added). The threat to
plaintiff here was different in a critical way; unlike in Hellman, where the threat was abstract and
indefinite, here, plaintiff was faced with a concrete threat that the police would be called
immediately and he would be arrested for allegedly stealing the truck. Le Roux Decl. ¶ 43 (doc.
26); Bennett Decl. Ex. 5, at 7-8 (doc. 27-5). Moreover, when plaintiff’s supervisor, Mr.
Burroughs, threatened to call the police to arrest plaintiff, he indicated plaintiff would go to jail
for more than six months. Bennett Decl. Ex. 5, at 7-8 (doc. 27-5). Additionally, Mr. Burroughs
specifically indicated plaintiff would be in jail that night. Bennett Decl. Ex. 5, at 9 (doc. 27-5)
(“You do not want to go to jail tonight and that’s what is going to happen if you keep going.”).
Next, defendant asserts that because the decision to make plaintiff ineligible for rehire
was made after the employment relationship had ended, the decision did not constitute actionable
retaliation. Defendant fails to cite any statute, regulation, or case, to support such an assertion. In
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Ray, the Ninth Circuit specifically indicated that an “unfavorable job reference” can constitute
material adversity. Ray, 217 F.3d at 1242–43; see also Young Bolek, 2016 WL 9455411 at *12.
With regard to plaintiff’s constructive termination claim, defendant argues that when an
employer gives the employee the opportunity to return to work, there is no constructive
termination. See Irizarry v. Lily Transportation Corp., 266 F.Supp.3d 600, 606 (D. Conn. 2017).
In Irizarry, the employer reached out to the employee after he resigned to offer him an
opportunity to return to work. Id. Conversely, here, defendant did not offer plaintiff an
opportunity to return to work after he resigned. Although Mr. Burroughs at one point indicated
there might be a way for plaintiff to return to work, he quickly followed up with multiple threats
that plaintiff would be sent to jail. Bennett Decl. Ex. 5, at 7-9 (doc. 27-5). Even if a jury could
reasonably conclude defendant sincerely offered plaintiff an opportunity to return to work, a
reasonable jury could also conclude it was an insincere offer made in an attempt to convince
plaintiff to turn the truck around. Thus, summary judgment is not appropriate.
Defendant argues its conduct did not amount to constructive termination, because such a
cause of action requires an employee to resign due to “unendurable working conditions.” Def.’s
Mot. Summ. J. 16 (doc. 20) (citing Carroll v. Holder, 2011 WL 7091804, *25 (D. Or. 2011))
(internal quotations omitted). Carroll defined unendurable conditions as “so intolerable that a
reasonable person . . . would have felt compelled to resign.” Carroll v. Holder, 2011 WL
7091804, *25 (D. Or. 2011) (citing Poland v. Chertoff, 494 F.3d 1174, 1184 (9th Cit. 2007))
(internal quotations omitted). Defendant argues the Ninth Circuit has previously held that
evidence of an out of state transfer and demotion were insufficient to establish constructive
termination. Poland, 494 F.3d at 1178–79. Notably in Poland, the employee worked for five
months after the allegedly unendurable conditions arose before “he decided to take early
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retirement.” Id. at 1185–86. Furthermore, after he requested retirement, he worked an additional
three months. Id. Here, plaintiff did not continue to work for COTC after the conditions allegedly
became unendurable.
Moreover, plaintiff argues COTC subjected him to unendurable conditions because
COTC intentionally stranded him in Clarkston, Washington for the sole purpose of causing him
to quit. If plaintiff’s predicament in Clarkston had been an innocent mistake, plaintiff could have
expected things to improve; however, assuming he was intentionally stranded, it would be a
reasonable expectation that the antagonizing would continue and potentially worsen. As
discussed above, there is sufficient evidence for a reasonable jury to conclude COTC’s conduct
was intentional. Furthermore, the context of plaintiff’s allegedly unendurable working conditions
was not limited to his stranding in Clarkston. Plaintiff had complained of safety problems with
his trailer for the previous three months and over the course of those three months, COTC took
minimal action to address those concerns and ultimately failed to repair the safety problems. See
Bennett Decl. Ex. 6, at 3, 14, 17 (doc. 27-6); Le Roux Decl. ¶¶ 15-29. (doc. 26). After plaintiff
resigned, however, COTC spent nearly four thousand dollars attempting to repair the trailer. See
Bennett Decl. Ex. 6 (doc. 27-6). Additionally, due to the trailer’s unrepaired deficiencies,
plaintiff was cited six times and COTC refused to reimburse plaintiff for those citations.
Accordingly, a reasonable jury could conclude that a job in which an employer repeatedly
failed to repair safety issues with the employee’s vehicle, forced the employee to pay out of his
own pocket the cost of the traffic tickets resulting from the unrepaired safety issues, and
intentionally antagonized the employee by sending him to a remote area for the purpose of
stranding him, would constitute unendurable working conditions. As such, summary judgment is
not appropriate on plaintiff’s claims for retaliation for reporting safety concerns.
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II. Retaliation for Refusing to Operate a Commercial Vehicle under the STAA
Defendant asserts plaintiff has no evidence to support a retaliation claim for refusing to
operate a vehicle that violates a safety standard under the STAA. Defendant argues that
plaintiff’s claim fails because he drove the vehicle; therefore, he never actually refused to drive.
However, “the refusal-to-operate provision could cover a situation in which an employee refuses
to use his vehicle in the manner directed by his employer even if that refusal results in the
employee driving the vehicle.” TransAm Trucking, Inc. v. Admin. Review Bd., U.S. Dep’t of
Labor, 833 F.3d 1206, 1211–12 (10th Cir. 2016). The court in TransAm specifically cites as an
example a truck driver who refused to haul a full load as instructed by the employer, but
ultimately hauled a lighter load. See Id. at 1212 (citing Beveridge v. Waste Stream Envtl., Inc.,
ARB No. 97-137, 1997 WL 806522, at *1 (ARB Dec. 23, 1997)). Defendant argues this situation
differs from TransAm because plaintiff agreed to take a lighter load; however, defendant ignores
the fact that, like the example above, plaintiff had refused to haul a heavy load, despite being
directed to do so. As such, plaintiff did refuse to use his vehicle in the manner directed by his
employer.
A refusal to drive claim under the STAA requires an “actual violation” of a federal motor
carrier safety regulation. 49 U.S.C. § 31105(a)(1)(B). Defendant argues plaintiff has failed to
demonstrate there was an actual violation of any federal motor carrier safety regulation. Plaintiff
asserts that due to the malfunctioning air pressure gauges, he was unable to comply with 49
C.F.R. § 392.2 which required compliance with state laws. Oregon state law prohibits excessive
weight over the axles with a heavy haul load. See Le Roux Decl. Ex. 5, at 2 (doc. 26-5). On April
7, 2016, plaintiff was cited for exactly that reason; the trailer was overweight over the axles. Le
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Roux Decl. ¶ 34 (doc. 26). As such, there was an actual violation of a federal motor carrier safety
regulation.
Defendant cites a Seventh Circuit case for the proposition that an “employee is only
protected for refusing to drive a vehicle if he first asked his employer to correct the hazardous
safety condition, but the safety hazard remained uncured.” Gaines v. K-Five Constr. Corp., 742
F.3d 256, 264 (7th Cir. 2014). Defendant argues COTC addressed plaintiff’s concerns by
securing the lighter load. Defendant, however, ignores the fact that plaintiff refused to take a
heavy haul load and COTC had already failed to address the underlying problem that made the
truck unsuitable for carrying heavy haul loads, despite plaintiff’s many requests to repair the
safety issues. Le Roux Decl. ¶¶ 15-29. (doc. 26).
Defendant renews its argument that plaintiff cannot show there was any adverse
employment action. As discussed above, however, a reasonable jury could conclude defendant
took adverse employment actions against plaintiff.
III. Whistleblower Retaliation under O.R.S. § 659A.199
Defendant argues that plaintiff failed to present evidence sufficient to establish a
violation of O.R.S. § 659A.199. Specifically, defendant argues there is no evidence COTC
“discharged, demoted, suspended, or discriminated or retaliated against plaintiff with regard to
any term, condition, or privilege of employment, because plaintiff reported the information.”
Def.’s Mot. Summ. J. 21 (doc. 20).
Pursuant to O.R.S. § 659A.199, plaintiff must demonstrate he believed there was a
“violation of a state or federal law, rule or regulation,” he reported such violation in “good faith,”
and COTC retaliated against him with regard to “compensation or other terms, conditions or
privileges of employment.” O.R.S. § 659A.199(1).
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There is sufficient evidence from which a jury could reasonably find that plaintiff
believed there was a violation of state or federal regulations because in his emails to his
supervisors he specifically referred to the traffic citations which were based on violations of
federal regulations. See Le Roux Decl. Ex. 5, at 2 (doc. 26-5); Le Roux Decl. Ex. 12, at 2 (doc.
26-12); Le Roux Decl. Ex. 7, at 1 (doc. 26-7). A jury could reasonably find plaintiff acted in
good faith because there is no indication, and defendant does not allege, plaintiff was not acting
in good faith.
Although plaintiff was not discharged, suspended, or demoted, he alleges he was
constructively discharged. “Under Oregon law, a constructive discharge occurs either when an
employee is told to resign or be fired or when an employee resigns as a result of intentionally
created unacceptable or intolerable working conditions.” Garmon v. Plaid Pantries, 2013 WL
3791433, *26 (D. Or. 2013) (citing Sheets v. Knight, 308 Or. 220, 227–28, 779 P.2d 1000
(1989)). To establish a claim of constructive discharge stemming from unacceptable working
conditions under Oregon law, plaintiff must prove:
(1) that the employer intentionally created or intentionally maintained specified
working condition(s); (2) those working conditions were so intolerable that a
reasonable person in the employee’s position would have resigned because of
them; (3) the employer desired to cause the employee to leave employment as a
result of those working conditions or knew that the employee was certain or
substantially certain, to leave employment as a result of those working conditions;
and (4) the employee did leave the employment as a result of those working
conditions.
Garmon , 2013 WL 3791433 at *26 (citing McGanty v. Staudencraus, 321 Or. 532, 556–57, 901
P.2d 841 (1995)). Plaintiff has presented sufficient evidence for a jury to reasonably find that
COTC intentionally maintained working conditions in which the mechanical and safety problems
with plaintiff’s trailer were not addressed, plaintiff was required to pay the citations which
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resulted from those mechanical and safety problems, and COTC intentionally sent plaintiff to
Clarkston, Washington to pick up a load that would not be available in order to strand him in
Clarkston. A reasonable jury could conclude those working conditions were unendurable.
Viewing the facts in the light most favorable to plaintiff, a reasonable jury could also find
defendant desired to cause plaintiff to resign. Although defendant asserts COTC staff “were
taking steps” to find plaintiff a new trailer and they were going to ensure it was in “tip top”
shape, defendant’s previous promises to deliver plaintiff a new trailer had never materialized.
Def.’s Mot. Summ. J. 5 (doc. 20); Le Roux Decl. ¶¶ 30, 45 (doc. 26). With regard to the final
element, the evidence reflects plaintiff resigned as a result of the working conditions. See Le
Roux Decl. ¶¶ 20-42 (doc. 26). In sum, a reasonable jury could find plaintiff’s claim satisfies the
elements necessary to establish a constructive discharge.
Furthermore, plaintiff alleges his bonus was negatively affected by the citations resulting
from the mechanical and safety deficiencies of his trailer. See Le Roux Decl. Ex. 12, at 2 (doc.
26-12). Retaliation against employees with regard to their compensation is also prohibited under
O.R.S. § 659A.199(1). Accordingly, summary judgment is not appropriate on plaintiff’s Oregon
whistleblower retaliation claim.
IV. Failure to Mitigate Damages
The mitigation of damages doctrine prevents an injured party from recovering damages
he could have avoided if the injured party had made reasonable efforts after the wrong was
committed. See Jackson v. Shell Oil Company, 702 F.2d 197, 201–02 (9th Cir. 1983). As the
entity asserting a failure to mitigate damages, defendant bears the burden of proof. See Odima v.
Westin Tuscon Hotel, 53 F3d. 1484, 1497 (9th Cir. 1995). To satisfy this burden, defendant has
to prove “that, based on undisputed facts in the record, during the time in question there were
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substantially equivalent jobs available, which the plaintiff could have obtained, and that the
plaintiff failed to use reasonable diligence in seeking one.” Id. (internal quotations and citations
omitted).
Defendant argues plaintiff is not entitled to lost wages and benefits because he has failed
to present evidence that he mitigated his damages. Dunn v. CSK Auto, Inc., 2006 WL 2345807
(D. Or. 2006). In Dunn, the plaintiff failed to mitigate her damages because she voluntarily
withdrew from the job market two years after she quit her job and she only applied for eight to
twelve jobs prior to her withdrawal. Despite finding the plaintiff failed to use “reasonable
efforts” to find suitable employment, the court in Dunn ultimately concluded that “[c]onsidering
that it reasonably may take some period of time to begin to search for new employment
(targeting likely employers, tracking advertisements, updating a resume, etc.), and given that she
did put forth some minimal effort in looking, I award plaintiff six months of lost past wages.”
Dunn, 2006 WL 2345807 at *3.
Defendant argues, for the first time in its reply brief, that in July 2016, plaintiff became
unable to work due to health problems. Therefore, argues defendant, plaintiff is not entitled to
any lost wages after that point in time because he voluntarily withdrew from the workforce. As a
preliminary matter, the Court need not consider arguments first raised in a reply brief. Lentini v.
Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 843 n. 6 (9th Cir. 2004). Moreover, plaintiff did
not state that he discontinued his job search in July 2016; rather, plaintiff reported that around
that time he was continuing to search for jobs. Plaintiff explained that in July 2016 he was
experiencing increasing pain in his knee and lower back which eventually required surgery;
however, plaintiff did not indicate he stopped applying for jobs. See Le Roux Decl. ¶¶ 51-53
(doc. 26).
Page 16 – OPINION AND ORDER
Defendant asserts that despite resigning in April 2016, plaintiff did not start applying for
jobs until November 2017. Although plaintiff’s declaration is not precise with regard to the exact
timing, in reference to the period between April 10, 2016, and June 1, 2016, plaintiff stated he
“continued to look for opportunities for non-entry level local commercial truck driving jobs like
[he] had with COTC.” Le Roux Decl. ¶ 51 (doc. 26) (emphasis added). This indicates plaintiff
began his job search shortly after he resigned from COTC. Moreover, plaintiff’s deposition
testimony reflects that he applied for “hundreds” of jobs. Bennett Decl. Ex. 9, at 2 (doc. 27-9).
Defendant cites expert testimony that there were similar jobs available and if plaintiff had
searched diligently he would have quickly found another job. See Def.’s Mot. Summ. J. 24 (doc.
20). Defendant also argues plaintiff documents his job search beginning in November 2017. Id.
at 23. Nevertheless, defendant has the burden of establishing the absence of a genuine issue of
material fact. Celotex Corp., 477 U.S. at 323. Because plaintiff asserted he began searching for
jobs shortly after resigning and testified he applied for hundreds of jobs, there exists a genuine
question of material fact on this issue. Accordingly, summary judgment is not appropriate
regarding mitigation of damages.
CONCLUSION
For the reasons set forth above, defendant’s motion for summary judgment (doc. 20) is
DENIED. The parties’ Pretrial Order is due thirty (30) days from the date of this Opinion.
DATED this 28th day of June 2018.
s/ Jolie A. Russo
JOLIE A. RUSSO
United States Magistrate Judge
Page 17 – OPINION AND ORDER
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