Opinion
Civ. No. 1:17-cv-01534-CL
07-18-2017
JUSTIN ALLRED, Plaintiff, v. BOISE CASCADE WOOD PRODUCTS, LLC, Defendant.
FINDINGS & RECOMMENDATION
Plaintiff Justin Allred ("Allred") originally filed this employment and disability discrimination action in Jackson County Circuit Court in July 2017. Defendant Boise Cascade Wood Products, LLC ("Boise Cascade") removed the case to federal court on September 29, 2017. ECF No. 1. On April 26, 2018, Boise Cascade filed a Motion for Summary Judgment. ECF No. 12. The Court heard oral argument on the motion on June 19, 2018. ECF No. 18. For the reasons set forth below, Boise Cascade's motion should be GRANTED.
BACKGROUND
Justin Allred was employed by Boise Cascade Wood Products, LLC from March 3, 2014, until his termination on July 24, 2015. Anderson Decl. Ex. 1, at 3, 30 (Allred Depo.). ECF No. 13. Following his ninety-day probationary period, Allred worked full-time as a bundle saw operator at Boise Cascade's plant in White City, Oregon. Anderson Decl. Ex. 1, at 3, 5. When he was hired, Allred was given a copy of the employee handbook and his supervisors explained Boise Cascade's policies, including attendance. Anderson Decl. Ex. 1, at 3. Allred received an updated employee handbook in October 2014. Anderson Decl. Ex. 1, at 8; Ex 2 (October 2014 Boise Cascade Employee Handbook).
Boise Cascade policy required that employees who were unable to make their scheduled shift call their supervisor at least one hour before the shift was to begin so that the supervisor could arrange for coverage. Anderson Decl. Ex. 1, at 8; Ex. 2, at 12. "Unexcused and/or unreported absence or any record of absenteeism or tardiness the Company believes is unreasonable will be sufficient cause for disciplinary action up to and including termination of employment." Anderson Decl. Ex. 2, at 12.
I. Allred's Work History at Boise Cascade
Boise Cascade noted a persistent problem with absenteeism during the period of Allred's employment. Between March 3 and August 14, 2014, Allred was absent or left work early nine times. Anderson Decl. Ex. 1, at 17. None of those absences were related to Allred's medical condition. Anderson Decl. Ex. 1. at 18. On August 14, 2014, Allred was "coached" by one of his supervisors, Ron Hoy, and told that he needed to "work on [his] absences." Anderson Decl. Ex. 1, at 17; Ex 7 (August 14, 2014 employee coaching form). Allred accrued an additional six absences between August 14 and December 29, 2014. Anderson Decl. Ex. 1, at 18. These absences were noted on an Employee Corrective Action Form, signed by Allred and his supervisor on December 29, 2014, as a Formal Disciplinary Warning. Anderson Decl. Ex. 9.
Coaching by supervisors is part of Boise Cascade's informal corrective action and is generally used before the company resorts to formal disciplinary procedures. Anderson Decl. Ex. 2, at 30.
On May 27, 2015, Allred was suspended from work for three days as a result of his absences and tardiness in April and May 2015. Anderson Decl. Ex. 1. at 19-21; Ex. 10. On July 6, 2015, and again on July 9, 2015, Allred was late to work and was given another three day suspension. Anderson Decl. Ex. 1, at 23-24; Ex. 12.
Allred was also coached by supervisors for violations of plant safety policies. On October 3, 2014, a supervisor reprimanded Allred for stapling without protective gloves. Anderson Decl. Ex. 1, at 18; Ex 8 (October 3, 2014, employee coaching form). On July 17, 2015, Allred was suspended for three days for bringing an unsafe air wand into the plant. Anderson Decl. Ex. 1, at 21-22; Ex 11. Following the July 2015 suspensions, Allred was warned that future violations of Boise Cascade policies could lead to termination. Anderson Decl. Ex. 1. at 23-24; Ex. 12.
Allred denies receiving a copy of the Employee Coaching Form for the October 3, 2014, reprimand. Allred does not deny that he was coached by his supervisor for stapling without protective gloves. Franell Decl. Ex. 1, at 9-10. ECF No. 15.
II. Allred's Medical Condition
Allred suffers from hemorrhoids. Anderson Decl. Ex. 1, at 2. Allred sought treatment for his condition for the first time on March 9, 2015. Anderson Decl. Ex. 1, at 9. Allred's primary care physician, Dr. Puneet Bandi, made the initial diagnosis and referred Allred to a surgeon. Id. The surgeon prescribed an ointment and recommended that Allred have surgery to treat the condition. Id. Dr. Bandi told Allred that the condition would be recurring and recommended that Allred change his diet. Id. Dr. Bandi's office wrote letters to Boise Cascade concerning Allred's condition and recommended that Allred be excused from work from March 9 through March 15, 2015. Anderson Decl. Ex. 1, at 10. Allred returned to work on March 16, 2015, and, although the medical report did not indicate that Allred would have further limitations after his return, Allred's supervisors discussed Allred's limitations with him and placed him on light duty for a week while he recovered. Anderson Decl. Ex. 1, at 13-14.
On March 24, 2015, Allred requested and received FMLA leave for the week of his absence. Anderson Decl. Ex. 1, at 10-13, 15; Ex. 6 (Notice of FMLA leave approval). In filling out his FMLA paperwork, Allred indicated that he "may need intermittent leave due to flare up or worsening condition." Anderson Decl. Ex. 1, at 12; Ex. 4 (FMLA request form). Dr. Bandi submitted a report to Boise Cascade as part of the FMLA process, in which he certified that Allred had been incapacitated by his condition between March 8 and March 15, 2015. Anderson Decl. Ex. 5, at 1 (Dr. Bandi's FMLA report). Dr. Bandi also indicated that Allred's condition would have periodic flare-ups two or three times per year, but that the flare-ups would not require Allred to be absent from work or prevent Allred from performing his job functions. Anderson Decl. Ex. 1, at 14; Ex. 5. at 2. Dr. Bandi did not certify Allred for intermittent FMLA leave. Anderson Decl. Ex. 1, at 14. Allred received short-term disability benefits for the week of his absence. Anderson Decl. Ex. 1, at 35.
Allred testified that he believed Dr. Bandi told him that he would have intermittent flare-ups and should be certified for intermittent leave. Franell Decl. Ex. 1, at 5-6.
Allred never asked Boise Cascade for any accommodations for his hemorrhoids. Anderson Decl. Ex. 1, at 34. Although Boise Cascade has procedures in place for employees who wish to report discrimination, retaliation, or harassment, Allred never reported any discrimination. Anderson Decl. Ex. 1, at 8. Allred testified that, to the best of his knowledge, no Boise Cascade employees made any derogatory comments about his medical condition or his leave of absence. Anderson Decl. Ex. 1, at 34. When Allred was asked why he believed that his termination was in retaliation for the use of FMLA leave, Allred responded "I don't know." Id. When asked why he believed that Boise Cascade had discriminated against him because of his hemorrhoids, Allred replied "They fired me." Id. When asked if he had any other reason to believe he'd been discriminated against because of his medical condition, Allred answered "No." Id.
III. Allred's Termination
On July 22, 2015, Allred was scheduled to begin work at 5:00 a.m. Anderson Decl. Ex. 1, at 26. Allred lived approximately twelve miles from the White City plant and it generally took him twenty minutes to get to work. Anderson Decl. Ex. 1, at 6. Normally, Allred woke up an hour before his shift and left home thirty minutes before his was scheduled to begin work. Id.
At 4:00 a.m., Allied woke up experiencing a flare-up of his hemorrhoids. Anderson Decl. Ex. 1, at 26. By 4:45 a.m., Allred knew that he would not be able to make it to work. Id. Despite the fact that Boise Cascade's call-in policy requires that he call in before the start of his shift, Allred did not call in to the absence line until 5:16 a.m., after the start of his scheduled shift. Anderson Decl. Ex. 1, at 26-27. Allred testified that he didn't know why he didn't call in when it became clear that he would be unable to report to work by 5:00 a.m. Anderson Decl. Ex. 1. at 26.
When he called in, Allred left a message saying that he was experiencing a medical condition and that he would not be able to work that day. Anderson Decl. Ex. 1, at 27. Allred did not seek medical treatment, although he did call Dr. Bandi to request an appointment. Anderson Decl. Ex. 1, at 27-28. Allred also called his supervisors to report that he'd made an appointment to see his doctor. Anderson Decl. Ex. 1, at 28.
On July 23, 2015, Allred was seen by Dr. Bandi, who confirmed that Allred was experiencing a flare-up, but did not issue any prescriptions or give Allred any treatment other than to tell him to "wait it out." Anderson Decl. Ex. 1, at 28-29. Dr. Bandi wrote a note asking that Allred be excused from work on July 23 and 24, 2015. Anderson Decl. Ex. 1, at 29; Ex. 13.
Allred's supervisor, Jim Powers, called Allred on July 23, 2015, and told him that they had decided to terminate Allred from his employment. Powers Decl. ECF No. 13-17. Allred was told to come in on July 24, 2015, so that they could fill out the paperwork. Anderson Decl. Ex. 1, at 30. On July 24, 2015. Allred came to the plant and met with his supervisors. Id. Following that meeting, Allred was terminated for violation of Boise Cascade's attendance and reporting to work policies. Id.; Ex. 14.
Boise Cascade's policies permit a terminated employee to appeal their dismissal within three days by submitting a written notice to the human resources department. Anderson Decl. Ex. 1, at 32; Ex. 14, at 2. Allred did not appeal his termination within the time provided by company policy. Anderson Decl. Ex. 1, at 32. Allred was also given the option of requesting a meeting with the Boise Cascade regional manager, but he did not submit a request for a meeting. Anderson Decl. Ex. 1, at 33; Ex. 14, at 2. Allred did ultimately submit written appeals of his termination in December 2015 and January 2016, which were denied as untimely. Anderson Decl. Ex. 1, at 33; Ex. 16.
LEGAL STANDARD
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." Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011); Fed. R. Civ. P. 56(a). 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. Id. "This burden is not a light one . . . . 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) (citations 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." Villiarmo 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)). The court must draw all reasonable inferences in favor of the non-moving party. Sluimer v. Verity, Inc., 606 F.3d 584. 587 (9th Cir. 2010). "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). A "mere disagreement or the bald assertion that a genuine issue of material fact exists" is not sufficient to preclude the grant of summary judgment. Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989). When the non-moving 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 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
Allred brings claims for violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq., and its state law analogue, the Oregon Family Leave Act ("OFLA"). ORS 659A.183, as well as disability discrimination claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and its Oregon state law analogue, ORS 659A.103 et seq. Boise Cascade asserts that there are no disputed issues of material fact and it is entitled to summary judgment on all claims.
I. FMLA and OFLA Claims
The Ninth Circuit has recognized two theories for recovery on FMLA claims under 29 U.S.C. § 2615(a): the "retaliation" or "discrimination" theory, and the "entitlement" or "interference" theory. See Sanders v. City of Newport, 657 F.3d 772, 777-78 (9th Cir. 2011); Florea v. Nw. Country Place, Inc., No. 3:13-cv-02290-SB, 2015 WL 4111865, at *7 (D. Or. July 7, 2015).
An "interference" claim arises under § 2615(a)(1), which provides that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided under [the FMLA]." 29 U.S.C. § 2615(a)(1). The Ninth Circuit has declined to apply the McDonnell Douglas burden shifting framework to FMLA interference claims and instead allows an employee to prove such a claim "by using either direct or circumstantial evidence, or both." Sanders, 657 F.3d at 778 (internal quotation marks and citation omitted).
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
By contrast, a discrimination or retaliation claim arises under § 2615(a)(2), which provides that "[i]t shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [the FMLA]." 29 U.S.C. § 2615(a)(2). Court generally apply the McDonnell Douglas burden shifting framework when analyzing claims for discrimination or retaliation. Shultz v. Wells Fargo Bank Nat'l Ass'n, 970 F. Supp.2d 1039, 1058 (D. Or. 2013). Under that framework, once the employee makes a prima facie showing of retaliation, the burden shifts to the employer to articulate a legitimate, non-retaliatory explanation for the adverse employment action. Id. If the employer meets its burden, the employee must then present evidence demonstrating that the explanation was merely a pretext for retaliation. Id.
The OFLA is "construed to the extent possible in a manner that is consistent with any similar provisions of the federal Family and Medical Leave Act of 1993." ORS 659A.186(2). "Consistent with this legislative declared intent, the Oregon courts have looked to federal law when interpreting OFLA." Sanders, 657 F.3d at 783 (citing Yeager v. Providence Health Sys. Or., 195 Or. App. 134 (2004)); Price v. Multnomah Cnty, 132 F. Supp.2d 1290, 1295 (D. Or. 2001) ("Plaintiff's claims under OFLA and FMLA are subject to similar analysis, and will therefore be discussed together.").
In this case, Allred asserts that Boise Cascade discriminated and retaliated against him for taking protected leave under the FMLA and OFLA. Compl. 3-5. Although Allred characterizes his claims as arising under discrimination or retaliation theory, they would be more appropriately classified as interference claims. The Ninth Circuit has "clearly determined that § 2615(a)(2) applies only to employees who oppose employer practices made unlawful by FMLA, whereas § 2615(a)(1) applies to employees who simply take FMLA leave and as a consequence are subjected to unlawful actions by the employer." Xin Liu v. Amway Corp., 347 F.3d 1125, 1133 n.7 (9th Cir. 2003) (emphasis in original); Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001); see also Schultz, 970 F. Supp.2d at 1052 ("When a plaintiff alleges retaliation for exercising his or her rights under the FMLA, in the Ninth Circuit such a claim is properly analyzed as an interference claim under Section 2615(a)(1)"). Here, Allred's claim is based on the allegation that he was terminated for taking protected leave, not for "opposing" Boise Cascade's practices with respect to the FMLA. Under similar circumstances, courts within this District have routinely interpreted such claims as falling under § 2615(a)(1), notwithstanding the plaintiff's characterization of the claim as one for discrimination or retaliation. See, e.g., Varese v. Clatsop Behavioral Healthcare, Case No. 3:16-cv-00738-AA, 2018 WL 1513271, at *5 n.10 (D. Or. Mar. 27, 2018); Florea, 2015 WL 4111865, at *8; Benz v. West Linn Paper Co., 803 F. Supp.2d 1231, 1249 (D. Or. 2011). The Court will follow that example and treat Allred's FMLA claim as arising under § 2615(a)(1). As a consequence, the McDonnell-Douglas burden shifting analysis will not apply. See Sanders, 657 F.3d at 778
To sustain an FMLA interference claim, a plaintiff must show by a preponderance of the evidence that: (1) the plaintiff took or requested protected leave; (2) the employer subjected the plaintiff to an adverse employment action; and (3) the taking of or requesting protected leave was a "negative factor" in the adverse employment decision. Bachelder, 259 F.3d at 1125; Schultz, 970 F.3d at 1053. A plaintiff may prove an interference claim "by using either direct or circumstantial evidence, or both." Bachelder, 259 F.3d at 1125.
In this case, there is no evidence to support Allred's claim that his request for FMLA leave was a "negative factor" in his ultimate termination. Rather, the record strongly supports Boise Cascade's stated reason for Allred's termination: his repeated violation of the company call-in policy.
Allred argues that he could not be terminated for his absence because the leave was covered by the FMLA and OFLA. Even assuming that Allred properly invoked the FMLA and OFLA for his absence, that issue is somewhat beside the point. The FMLA does not excuse an employee from following the employer's normal call-in procedures, absent an emergency situation:
When the need for leave is not foreseeable, an employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require employees to call a designated number or a specific individual to request leave. . . . If an employee does not comply with the employer's usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.29 C.F.R. § 825.303(c).
Oregon regulations provide similar guidance: "When an employee is unable to give the employer 30 days' notice but has some advance notice of the need for leave, the employee must give the employer as much advance notice as is practicable." OAR 839-009-0250(2). "An employee able to give advance notice of the need to take OFLA leave must follow the employer's known, reasonable and customary procedures for requesting any kind of leave, absent unusual circumstances." OAR 839-009-0250(1)(a).
Under these regulations, an employer "can require an employee to follow the employer's internal policies or procedures for requesting leave" and "may deny or delay FMLA protected leave if an employee fails to comply with such internal policies or procedures." Dean v. Safeway, Inc., No. 3:12-cv-01875-PK, 2014 WL 6473543, at *11 (D. Or. Nov. 18, 2014).
The situation in the present case is essentially what is described in § 825.303(c). Boise Cascade's policy required employees to call in to a phone number if they were going to be out sick or late for their shift. Allred was aware of the policy, having been previously disciplined for failing to follow it. Allred testified that he delated calling in sick because he wanted to see if his condition would improve in time for him to get to work. Allred knew how long it would take him to get to the plant, but did not call in when it became clear that he would not be able to arrive on time. Allred ultimately called the attendance line, but not until sixteen minutes after his shift was scheduled to begin. When questioned, Allred had no explanation for why he waited until after the start of his shift to make the call, despite being awake, aware of the time, and able to operate a telephone.
The Ninth Circuit recently confronted a remarkably similar situation in Shelton v. Boeing Co., 702 F. App'x 567 (9th Cir. 2017). The Shelton plaintiff had, like Allred, been repeatedly disciplined for failing to adhere to his employer's call-in policy for absences from work. Id. at 567-68. Shelton was terminated after a third infraction and subsequently brought an action under the FMLA and its state law analogue. Id. The district court granted summary judgment in favor of the employer and the Ninth Circuit affirmed "because no reasonable jury could find that Shelton's FMLA leave was a negative factor in his termination." Id. at 568.
The Washington State Family Leave Act ("WFLA") is, like the OFLA, "patterned on and construed in accordance with the FMLA." Shelton v. Boeing Co., 702 F. App'x 567, 568 (9th Cir. 2017) (citing Wash. Rev. Co. § 49.78.410).
Boeing submitted evidence showing that it administered the first two [corrective action memos] to Shelton because he refused to comply with his manager's instructions to contact her directly before taking any absence, not because he exercised his right to FMLA leave. And. Shelton provided no additional evidence that could possibly establish that the nature of his FMLA leave was a negative factor, or even a factor at all, in Boeing's decision to discipline him.Id. (citing Bones v. Honeywell, Int'l, Inc., 366 F.3d 869, 878 (10th Cir. 2004)).
Furthermore, Shelton fails to establish that he complied with Boeing's usual and customary policy for requesting leave. . . . [T]here is no question that Shelton knew he needed to report his absences to his manager. He was reminded on multiple occasions. Nothing in the FMLA prohibits an employer from disciplining an employee for noncompliance with the company's usual and customary attendance policies.
Additionally, no unusual circumstances justified Shelton's noncompliance. He failed to proffer evidence that anything outside his control prevented him from following the policy, or that he was reasonable in disregarding his manager's clear and repeated instructions to notify her before any absence.
Likewise, in Buckman v. MCI World Com, Inc., 374 F. App'x 719 (9th Cir. 2010), the Ninth Circuit ruled in favor of an employer who terminated an employee for failing to follow call-in procedures, notwithstanding the employee's invocation of the FMLA. Id. at 720. As in the present case, the employer's policy required employees "to call in before their shift if they were going to be absent or tardy." Id. Like Allred, Buckman had been repeatedly warned and disciplined for failing to follow his employer's call-in policy. Id. Buckman called in forty-eight minutes after the beginning of his shift and provided no evidence of unusual circumstances that prevented him from calling before his shift began. Id. In upholding the grant of summary judgment, the Ninth Circuit noted that "the FMLA allows an employer to require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances." Id. (internal quotation marks and citation omitted).
Other circuit courts have reached similar conclusions. See, e.g., Acker v. General Motors, LLC, 853 F.3d 784, 789 (5th Cir. 2017) ("[A]n employer generally does not violate the FMLA if it terminates an employee for failing to comply with a policy requiring notice of absences, even if the absences that the employee failed to report were protected by the FMLA." (quoting Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 1008-09 (10th Cir. 2011) (emphasis in original)); Bacon v. Hennepin Cnty. Med. Ctr., 550 F.3d 711, 715 (8th Cir. 2008) (employer did not violate FMLA by terminating employee who failed to follow employer's call-in policy); Lewis v. Holsum, 278 F.3d 706, 710 (7th Cir. 2002) (employer did not violate the FMLA by terminating an employee for failing to follow "usual and customary" call-in procedures). These rulings are generally consistent with the Ninth Circuit's holdings in Shelton and Buckman and the Court finds the out-of-circuit decisions persuasive.
In this case, the record is clear that Allred was terminated for his repeated violations of Boise Cascade's call-in policy. Allred was indisputably aware of the policy and has failed to provide any evidence of an emergency or other unusual circumstance that prevented him from calling in ahead of his shift. The Court concludes that no reasonable jury could find that Allred was terminated for invoking his FMLA or OFLA leave. Consistent with Shelton and Buckman, the fact that Allred's absence might arguably have been covered by the FMLA and OFLA does not excuse Allred from the obligation to follow his employer's call-in procedures, nor does it prohibit his employer from terminating him for repeated violation of those policies. Boise Cascade's Motion for Summary Judgment should be GRANTED as to Allred's FMLA and OFLA claims.
II. Disability Discrimination Claims
The ADA and Oregon law prohibit discriminating against qualified individuals on the basis of disability in the terms and conditions of their employment. 42 U.S.C. § 12112(a); ORS 659A.112(1). To oppose summary judgment in a discrimination claim, the plaintiff has the initial burden of making out a prima facie case of discrimination. See Wessels v. Moore Excavation, Inc., No. 3:14-cv-01329-HZ, 2016 WL 1589894, at *2 (D. Or. April 18, 2016).
To state a prima facie case under the ADA, a plaintiff must show (1) that he is disabled within the meaning of the ADA; (2) that he is a qualified individual with a disability; and (3) that he suffered an adverse employment action because of his disability. Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013) (considering an ADA discrimination claim); Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (applying same standard to an ADA claim for failure to accommodate).
If the plaintiff is able to establish a prima facie case of disability discrimination, the McDonnell Douglas burden shifting framework applies. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1092 (9th Cir. 2001); see also Mayo v. PCC Structural, Inc., 795 F.3d 941, 943-44 (9th Cir. 2015) (McDonnell Douglas applies to claims under Oregon disability law). The burden then shifts to the employer to provide a legitimate, non-discriminatory reason for the adverse employment action and, if the employer is able to do so, the burden shifts back to the plaintiff to prove that the employer's stated reason was pretextual. Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014).
Oregon's disability discrimination statutes "shall be construed to the extent possible in a manner that is consistent with any similar provisions of the federal Americans with Disabilities Act of 1990, as amended by the federal ADA Amendments Act of 2008 and as otherwise amended." ORS 659A.139(1). Accordingly, courts interpret the Oregon disability discrimination statutes consistently with the ADA and discuss claims arising under the state statutes together with any ADA claim. Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 n.1 (9th Cir. 2001).
Boise Cascade moves for summary judgment on the basis that there is no evidence that Allred was terminated because of his disability. As part of a prima facie case of disability discrimination, the plaintiff must establish "that a causal connection exists between the adverse employment action and the disability." Benz, 803 F. Supp.3d at 1253.
In this case, there is no evidence, either direct or indirect, of a causal connection between Allred's hemorrhoid condition and his termination. Allred testified that none of his supervisors or coworkers made derogatory comments about his condition or his leave of absence, nor did he provide any other evidence of a discriminatory motive on the part of Boise Cascade. When asked why he believed that he was the victim of discrimination, Allred could point only to the fact of his termination. Allred was unable to articulate any other grounds for believing himself to be the victim of disability discrimination. As discussed in the preceding section, the record clearly demonstrates that Allred was fired for his repeated violation of Boise Cascade policies, including the call-in policy and not because he suffered from hemorrhoids. Allred has therefore failed to establish a prima facie case for discrimination.
Boise Cascade also argues that hemorrhoids are not a disability within the meaning of the ADA and that position is supported by a number of out-of-circuit district court opinions. Davis v. BellSouth Mobility, LLC, No.CV01-AR-0986-S, 2002 WL 31720597, at *4 (N. D. Ala. Nov. 1, 2001) ("To characterize such a common malady as hemorrhoids, even severe hemorrhoids, as a disability would thwart the purpose of the ADA."); Racier v. Upper Cumberland Human Res. Agency, 171 F. Supp. 3d 751, 758-59 (M.D. Tenn. 2016) (finding diverticulosis and internal hemorrhoids did not render the plaintiff disabled within the meaning of the ADA). In light of the lack of causal connection, however, the Court concludes that it is not necessary to reach this argument and assumes for the purposes of this motion that Allred's condition was a disability under the ADA.
Even if Allred were able to demonstrate some causal connection between his condition and his termination, Boise Cascade has provided a legitimate, non-discriminatory reason for the termination: Allred's repeated violations of Boise Cascade's policies, including the final call-in policy violation on July 22, 2015. Allred has produced no evidence that the stated reason was pretextual. This supplies an independent basis for granting summary judgment in favor of Boise Cascade. See Curley, 772 F.3d at 632 ("We need not decide whether Curley can establish a prima facie case of discrimination because, even if he could, he has not raised a genuine issue of material fact as to whether the City's reasons for terminating him were pretextual.")
Finally, Allred argues in his response that Boise Cascade failed to engage in the interactive process and offer Allred accommodations for his condition, specifically intermittent FMLA leave. "Under the ADA, employers are required to engage in an interactive process with employees in order to identify and implement appropriate reasonable accommodations." Hoang v. Wells Fargo Bank, 724 F. Supp.2d 1094, 1101 (D. Or. 2010) (internal quotation marks and citation omitted).
The interactive process is triggered either by a request for accommodation by a disabled employee or by the employer's recognition of the need for such accommodation. . . .The interactive process requires: (1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employee's request; and (3) offering an accommodation that is reasonable and effective.Id. (internal citations omitted).
In this case, Allred indicated that he "may" need intermittent leave as a result of his condition when he filled out his FMLA paperwork. Boise Cascade followed up on that request by contacting Allred's physician, Dr. Bandi. Dr. Bandi reported that Allred had been incapacitated by his condition between March 8 and March 15, 2015, and that Allred's condition would have periodic flare-ups two or three times per year, but that the flare-ups would not require Allred to be absent from work or prevent Allred from performing his job functions. Notably, Dr. Bandi did not certify Allred for intermittent leave.
Boise Cascade designated the period of Allred's absence from March 8 through March 15, 2015, as FMLA leave. Allred's supervisors discussed Allred's limitations with him when he returned to work and placed Allred on a period of light duty in order to accommodate his condition. Allred never requested any other accommodation with respect to his condition. On this record, the Court cannot conclude that Boise Cascade failed to engage in the interactive process with Allred, or that it failed to offer him reasonable accommodations in light of the information provided by Dr. Bandi.
At his deposition, Allred discussed the circumstances of his light duty assignment:
Q: How long were you on light duty?Anderson Dec. Ex. 1, at 13.
A: I'd say a week.
Q: Who put you on light duty?
A: It was either Jim Powers or George Peterson.
Q: Did you ask them to do so?
A: They asked me if I needed it.
Q: You told them yes?
A: Initially. Play it by ear, see how it would go.
Furthermore, as discussed in the preceding section, FMLA leave does not excuse an employee from the obligation to comply with the employer's usual and customary call-in policies. Allred does not argue that Boise Cascade should have excused him from the call-in policy as a reasonable accommodation for his condition, nor is there evidence in the record to support such a conclusion. Even if Boise Cascade had granted intermittent leave, the company's policies would still have obliged Allred to call in before his shift began in order to notify his supervisors that he needed to take a period of leave. The undisputed facts of this case show that Allred did not follow that policy on the morning of July 22, 2015, and that the violation was the latest in a series of similar incidents covering most of the period of Allred's employment with Boise Cascade. Allred has not provided any evidence to suggest that the denial of intermittent leave was somehow connected to his ultimate termination. Nor, as previously noted, has Allred demonstrated that Boise Cascade's stated reason for terminating him was pretextual.
Accordingly, Boise Cascade's Motion for Summary Judgment should be GRANTED as to Allred's state and federal disability discrimination claims.
CONCLUSION
Defendant's Motion for Summary Judgment, ECF No. 12, should be GRANTED and a final judgment should be entered for Defendant.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
NOTICE
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.
DATED this 18 day of July, 2017.
/s/_________
Hon. Mark D. Clarke
United States Magistrate Judge