Opinion
3:18-cv-01956-AC
09-01-2020
LESLIE MAGEE, Plaintiff, v. TRADER JOE'S COMPANY, a California business corporation, Defendant.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA United States Magistrate Judge
Plaintiff Leslie Magee (“Magee”) filed this action against her former employer, Trader Joe's Company (“Trader Joe's”), asserting claims of disability discrimination and retaliation under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. and Oregon's statutory parallel, Oregon Revised Statutes (“O.R.S.”) § 659A.100 et seq.. Magee also asserts claims for discrimination, interference, and retaliation under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and Oregon's statutory parallel, the Oregon Family Leave Act (“OFLA”), O.R.S. § 659A.150, and a claim for retaliation for reporting unlawful employment practices under O.R.S. § 659A.199. Presently before the court is Trader Joe's Motion for Summary Judgment (ECF No. 29). For the following reasons, the court recommends that the motion for summary judgment be granted in part and denied in part.
Factual Background
Magee began her employment with Trader Joe's in 2006 as a Crew Member, and in 2008, she transitioned to Part-Time Crew Member Artist. As a Store Artist, Magee created store signage, banners, labels and visual art displays throughout the store. (Deci. Diane Sykes Supp. Resp. Summ. J. (“Sykes Deci.”) Ex. 12, attaching Deposition of Leslie Magee (“Magee Depo.”) 17:19-18:4, ECF Nos. 32-2, 33.) During her employment, Magee spent the bulk of her work hours creating store art.
In 2011, Trader Joe's eliminated company-wide the position of Part-Time Crew Member Artist, and Magee again became a Crew Member. (Id.) Crew Member job duties include greeting customers, “[o]perating the cash register in a fun yet efficient manner, ” “[b]agging groceries, ” “receiving, unloading and verifying deliveries, ” “stocking shelves, ” “building eye catching, informative merchandise displays, ” “seeking out new assignments and responsibilities, ” and “arriving to work on time.” (Deci. David P.R. Symes Supp. Def's Summ. J. (“Symes Deci.”) Ex. 1, ECF No. 30-1.) The Crew Member Job Description indicates that “[a]dditional duties may include performing the Helms role, working in the Demo station, creating signs or artwork, or ordering product as a Section Leader.” (Id.) The Crew Member Job Description also provides that crew members “may occasionally lift weights from 10-50 pounds, to heights of 10 to 72 inches, ” may need to use a handtruck to move products weighing up to 200 pounds, and that “regular and punctual attendance [is] an essential part of the job.” (Id.)
On April 8, 2013, Magee sustained a wrist injury while roller-skating outside of work. The wrist injury required surgery, for which Magee took a medical leave of absence from April 8, 2013, to May 22, 2013. (Sykes Deel. Ex. 3 at 6, ECF No. 35-1 at 13.) In November 2013, Magee's medical provider, John T. Denker, M.D., cleared her to perform “transitional duty, ” which included frequent lifting of ten pounds, occasional lifting of twenty pounds, and frequent repetitive hand movements for two hours for at least a four-hour shift. (Id. Ex. 3 at 2.) On April 15, 2014, Trader Joe's requested Magee provide documentation if she wanted to pursue reasonable accommodations under the ADA for her condition. (Id. Ex. 3 at 3.) On April 28, 2014, Dr. Denker completed an ADA Request for Accommodation on Magee's behalf, indicating that certain repetitive movements of her left wrist were painful, that Magee was unable to “perform repetitive lifting” with the left arm exceeding ten pounds, and she was precluded from lifting more than twenty pounds. (Id. Ex. 3 at 4-5.) On November 21, 2014, Trader Joe's Senior Human Resource Generalist, Noreen Soria, sent Magee a letter confirming that based on Dr. Denker's April 28, 2014 paperwork:
[W]e are confirming the following accommodations:
We will not have you perform repetitive lifting with your left arm with weight exceeding 10 pounds and not lifting more than 20 pounds [.](Id. Ex. 3 at 7.) Ms. Soria explained that Magee's manager, Sarah Wilson, was aware of Magee's accommodations, and that Trader Joe's “may periodically request for an update from your physician regarding your condition so that we may continue the ADA interactive process.” (Id.)
In July 2015, Magee's performance review indicated that she “Meets Expectations” in thirteen of fifteen areas. (Symes Deci. Ex. 7, ECF No. 30-2 at 24.) Magee was noted to “Need Improvement” in two areas: “Adjusts to store needs. Easily works wherever needed[;]” and “Supports the team by being reliable. Has availability that support the customer experience and store needs.” (Id.) The narrative portion of the performance review stated:
Leslie is an integral part of our team, showcasing beautiful endcap boards, store signage, and creative decor throughout the store.... She has reduced her influence in the store by cornering herself to work art related tasks only. We are really emphasizing the team approach, which includes all aspects of the store signage, helms, customer experience, and stocking. Crew members are expected to work any area of the store, regardless of expertise, and the sign team needs to be prepared to contribute when needed. While we recognize the workload Leslie takes on as part of the sign team, she needs to be aware of what the rest of the crew deals with on a daily basis and look for opportunities to help when she can. Leslie should watch her attendance. Make sure she is ready to work her scheduled shifts on site and on time.(Id.)
In July 2016, Magee received a “Meets Expectations” performance review, meeting thirteen of fifteen areas. (Id. Ex. 7, ECF No, 30-2 at 25.) The two areas noted as needing improvement were “(u]nderstands safe work practices” and “[s]upports the team by being reliable.” (Id.) In the narrative portion of the July 2016 review, Trader Joe's noted that Magee has “done a fantastic job of maintaining our daily signage, display signs, holiday flyer signage and decor with minimal help.” (Id.) Additionally, Trader Joe's indicated that Magee had “some attendance issues during the review period” and instructed Magee to “be at work, and on time, for your scheduled shifts.” (Id.)
In February 2017, Magee received a “Meets Expectations” performance review, satisfying twelve of fifteen position requirements. (Id. Ex. 7, ECF No. 30-2 at 26.) But improvement was needed in this respects: “|c]onsistently keeps the store easy to shop, ” “[a]djusts to store needs, ” “[e]asily works wherever needed, ” and “[s]upports the team by being reliable.” (Id.) In the narrative portion of the February 2017 review, Magee's artistic skills again were praised, but she was encouraged to make additional efforts to work collaboratively by “participat[ing] in more aspects of daily store business” and “helping out the team when the store is busy.” (Id.) Additionally, Magee was cautioned to “work your scheduled shift” and that “[l]eaving early, just because you are caught up, is not being part of the team[ J” and that work completed outside of the store must be approved. (Id.)
In May 2017, Magee and Wilson had a conversation about Magee's attendance issues. Magee indicated that her attendance issues were related to her mental health. (Symes Deci. Ex. 3, Magee Dep. 102:1-7.) During this conversation, Wilson informed Magee to provide documentation as required by Trader Joe's policy to verify that her absences were due to her mental health condition and could be excused. (Symes Deci. Ex. 3, Magee Dep. 102:1-7; 103:12-20.) On May 22, 2017, Dr. Denker wrote a letter indicating that Magee was his patient and that she was seen in his office on May 1, 2017. (Sykes Deci. Ex. 3, ECF No. 35-1 at 17.) Dr. Denker explained that Magee recently was in a car accident, and that since that time, was experiencing “increased problems with panic and anxiety.” (Id.) Dr. Denker stated that Magee's symptoms were significantly increased by driving a car, or being a passenger in a car, and that she was currently under care for panic and anxiety. (Id.) Dr. Denker's May 22, 2017 note did not mention any of Magee's prior absences.
Magee contends that at some point in May or June 2017, Wilson harassed her about her limitations, stating that “You know you can't do 90 percent of the job, right?” (Sykes Deci. Ex. 12, Magee Dep. 60:1-4.) Magee also recalled that Wilson informed her that their store was the only Trader Joe's with two full-time artists, which made Magee believe that Wilson was trying to get rid of her. (Id. at 60:4-9.) Magee noted that Wilson informed her that she was not a good team member to her co-workers because she performed her work in the back of the store and did not work the register. (Id. at 61:1 -10.)
In June 2017, Wilson sought clarification of Magee's restrictions for lifting and repetitive work, and what tasks she could perform with her left and right wrists. (Sykes Deci. Ex. 13, Wilson Dep. 62:11-12; Symes Deel. Ex. 4, Wilson Dep. 97:5-98:2.) Wilson contacted Senior Human Resources Generalist Diane Carroll for assistance. (Sykes Deci. Ex. 13, Wilson Dep. 60:1661:19.) On June 12, 2017, Carroll sent Magee a letter asking that she have her physician complete an updated accommodation form to “determine if your accommodations have changed or are no longer required.” (Symes Deel. Ex. 2, ECF No. 30-1 at 5.)
On June 16, 2017, Wilson gave Magee a written warning concerning her attendance issues. (Symes Deci. Ex. 8, ECF No. 30-2 at 29.) In the warning, Wilson detailed that in the current review period, Magee had two tardies and four unexcused absences, and she left work early on twelve occasions. (Id.) Wilson specifically addressed Magee's mental health issues that she raised previously:
if there are issues outside of work that are affecting you in the workplace, you need to provide us with some sort of documentation that states what accommodations need to be made, and how long we need to be making them. Thus far, you have not provided us anything that we can utilize to excuse the attendance issues that have been going on fairly regularly for the past several months.(Id.)
On June 26, 2017, Magee obtained an ADA Accommodation Request from Dr. Denker concerning her physical limitations. (Id., ECF No. 30-1 at 6.) In that form, Dr. Denker noted that Magee continued to have residual pain and limited motion in her left wrist, was unable to work the cash register, unable to do repetitive lifting or movements with her hands, and could occasionally lift ten pounds but unable to lift more than twenty pounds. (Id.) Magee provided Dr. Denker's updated physical restrictions to Trader Joe's on July 3, 2017. (Symes Deci. Ex. 3, Magee Dep. 118:16-21.) While the lifting restrictions remained the same as those provided in his April 28, 2014 accommodation request, the 2017 physical restrictions applied to both hands and prevented Magee from working the cash register on a permanent basis. (Compare Sykes Deci. Ex. 3 at 4-5 (providing Dr. Denker's April 28, 2014 ADA accommodation request) with Ex. 3 at 11 (providing Dr. Denker's June 26, 2017 ADA accommodation request).) On July 17, 2017, based on the additional physical restrictions identified by Dr. Denker, Carroll directed Magee's manager inform her that she should not come to work until Trader Joe's could determine whether it would accommodate the limitations described by Dr. Denker. (Symes Deci. Ex. 6, ECF No. 30-2 at 21.)
Wilson and Carroll consulted with Regional Vice President, Tim Martin, and Crew Relations Manager, Maricel Camiling, concerning Magee's restrictions and whether Trader Joe's could accommodate no cash register work on a permanent basis. (Sykes Deci. Ex. 7 at 1-4, ECF No. 35-1 at 48-51.) On July 24, 2017, Carroll drafted a letter approving Magee's requested accommodations, and sent it to Martin and Wilson requesting their input. (Id. Ex. 7 at 7.) Martin expressed concern about the no register work accommodation, indicating that Magee would “brag about it in the back room, ” that Magee would encourage others to try to obtain the same accommodation, and that Wilson had expressed the same concern to him. (Id.) On July 28, 2017, Carroll contemplated requesting additional clarification from Dr. Denker. (Id. Ex. 7 at 8.)
While out of work on unpaid leave, Magee called human resources to inquire about the status of her requested accommodations. (Sykes Deci. Ex. 12, Magee Dep. 128:10-24.) Carroll inquired about what job functions Magee could perform. Magee told Carroll she had not worked the cash register since 2013; Carroll responded working the register while employed at Trader Joe's was “key” and that Magee had been “insubordinate” for not doing so. (Id.) Magee responded that she was confused because she did not understand why things were changing, that she felt Carroll was aggressive, and that she would obtain an attorney. (Id. at 128:25-129:10.)
On August 4, 2017, Magee's attorney sent Trader Joe's a letter indicating that she had not worked the cash register since 2013 due to her physical limitations from a wrist injury and a vascular condition. (Sykes Deci. Ex. 9 at 1, ECF No. 35-1 at 58.) The attorney's letter noted that in 2014, Trader Joe's had agreed to the following accommodations: no lifting over twenty pounds, no repetitive lifting or repetitive movements, and no assignment to the cash register. (Id. Ex. 9 at 2.) The letter stated that in the previous two-to-three years, Wilson had begun to harass Magee about her physical accommodations. (Id.) Magee's attorney also asserted that Wilson knew Magee was undergoing care for depression and anxiety and that other managers had accommodated Magee's mental health conditions, yet Wilson requested medical verification of her required workplace accommodations and issued her a written warning about her absences. (Id.) Finally, the attorney's letter indicated that Magee had been placed on unpaid leave as of July 18, 2017, that Magee had provided all necessary FMLA and ADA paperwork, and demanded Magee be reinstated. (Id. Ex. 9 at 3.)
On August 10, 2017, Camiling sent a letter to Magee noting it had received Dr. Denker's June 26, 2017 paperwork, and that based on that information, Magee could perform the following tasks: Signs, Helms, Demo, Facing, Answering two-bells, and store maintenance. (Id. Ex. 3 at 13.) Camiling's letter stated Trader Joe's belief that the identified functions fell within Magee's hand and wrist limitations and suggested that if she agreed, to contact the store for scheduling. (Id.) Magee agreed to the accommodations and returned to work.
On August 21, 2017, Magee provided an FMLA Certification of Health Care completed by Dr. Denker on August 8, 2017. The certification confirmed that Magee experienced ongoing issues with anxiety and depression and that she may experience flare-up of her symptoms approximately two days per month over the next six months, and that Magee had experienced these mental health conditions since 2007. (Sykes Deci. Ex. 3 at 14-17, ECF No. 21-24.)
On August 23, 2017, Camiling sent a letter to Magee in which she acknowledged that Magee had returned to work the previous week, and said she had received Dr. Denker's August 8, 2017 paperwork. (Sykes Deci. Ex. 3 at 18.) Camiling stated that Trader Joe's “will provide the accommodation proposed by your doctor and will allow you to be absent up to two days per month.” (Id.) Camiling further noted that Dr. Denker did not list any other job functions she is unable to perform and updated her work status to “Full Duty.” (Id.) On August 27, 2017, Wilson sent an email to Camiling, stating that Magee received the August 23, 2017 letter, and that Magee informed her Dr. Denker's most recent form pertained only to her mental health issues, not her wrist, and that the requested mental health accommodations were in addition to those for her wrist. (Id. Ex. 3 at 19.) In her August 27 email, Wilson informed Camiling that Magee was upset and defensive, and that Wilson encouraged Magee to reach out to Camiling directly to ensure that all necessary documentation was in order. (Id.) The following day, August 28, Camiling responded via email to Wilson that Trader Joe's would continue to honor Magee's physical restrictions identified in the August 10, 2017 letter, as well as provide her with two days of intermittent leave for her mental health conditions. (Id.) Camiling also stated in her August 28, 2017 email that she had called the store location and informed the manager of that determination. (Id.) On August 28, 2017, Magee's attorney sent Carroll a letter noting that Camiling had erroneously informed Wilson that Magee should be released to Full Duty, and that the proposed intermittent leave was in addition to, not instead of, her physical accommodations. (Sykes Deci. Ex. 9 at 4, ECF No. 35-1 at 61.)
On September 14, 2017, Trader Joe's sent Magee a letter confirming that her job functions remained limited to Signs, Helms, Demo, Facing, Answering two-bells, and Store maintenance. (Sykes Deci. Ex. 3 at 20.)
At some point in August 2017, Trader Joe's completed a performance review for Magee, in which she was rated as “Meets Expectations” in ten categories and “Needs Improvement” in five categories. (Sykes Deci. Ex. 5, at 1, ECF No. 35-1 at 30.) The areas identified as needing improvement included: treating customers as welcomed guests, consistently keeping the store easy to shop, adjusting to store needs, supporting the team by being reliable, and working to continuously improve performance. (Id.) Magee did not receive a wage increase at the time and was cautioned to “show immediate and sustained improvement.” (Id.) In the review's narrative portion, Magee received praise for her artwork, noting that shelf signs, artboards, and decor are consistently complimented by visiting management. (Id.) However, Magee rarely interacted with customers or helped co-workers on the sales floor. The review also acknowledged that while Magee needed accommodations, “we also think that if she was willing to try new tasks around the store, she would find things she could do to help out.” (Id.) The review additionally documented Magee's write-ups for attendance issues during the review period. (Id.) Magee denies she received a copy of the August 2017 performance review at the time, but saw it only later when she obtained a copy of her personnel file. (Sykes Deci. Ex. 12, Magee Dep. 186:7-25.)
After Magee returned to work, she was expected to perform two hours of crew member work in addition to her artwork. (Sykes Deci. Ex. 12, Magee Dep. 166:11-19.) Magee contends she no longer could perform artwork from her home. (Id. Magee Dep. 168:17-169:12.)
On August 23, 2017, Magee complained that a supervisor named Les Brad well asked her perform load work for an hour, which violated her restrictions. (Sykes Deci. Ex. 11 at 1, ECF No. 35-1.) On October 2, 2017, Magee informed Wilson that she was unable to assist with bagging because it was not on her list of approved duties. (Id. Ex. 11 at 2.)
On November 3, 2017, Magee filed a Complaint dually with the Oregon Bureau of Labor and Industries (“BOLI”) and the Equal Employment Opportunity Commission (“EEOC”), in which she alleged that Trader Joe's had engaged in unlawful employment practices and discriminated against her based on her disabilities. (Compl. ¶ 56.)
On November 29, 2017, Magee discovered that she did not have enough hours to qualify for medical insurance because of her unpaid leave in July and August, and she sent an email to Camiling asking for help. (Sykes Deci. Ex. 10 at 1, ECF No. 35-1 at 62.) On December 2, 2017, Camiling responded that Trader Joe's credited 160 hours of medical leave to her time sheet to rectify the matter. (Id.)
In a February 2018, Magee received a performance review in which rated her as “Meeting Expectations” in thirteen of fifteen categories and “Needs Improvement” in two categories. (Sykes Deci. Ex. 5 at 2.) In the review's narrative portion, Magee was commended for her artwork. (Id.) Also, Magee was reminded to pick up after herself, put products away after using them, actively seek out opportunities to engage with customers, and continue to be responsive to “two-bells.” (Id.) In the review, Magee is noted to have “made a more concerted effort to be available to help in other areas of the store.” (Id.) Magee received a pay increase as a result of the positive review. (Id.)
On June 4, 2018, Magee sent Wilson an email, complaining that flyer/holiday meetings were happening on her days off, observing that she used to be included in the meetings prior to her time off, and asking to be included in the meetings. (Sykes Deci. Ex. 11 at 3.) On July 3, 2018, Magee resigned from Trader Joe's, citing to ongoing harassment which made the workplace intolerable, (Id; Magee Dep. 170:6-11.)
On November 9, 2018, Magee filed the current action, alleging discrimination, retaliation, and interference under federal and state disability and medical leave laws. Trader Joe's moves for summary judgment on each of Magee's nine separate claims.
Legal 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.” Fed.R.Civ.P. 56(a). A party seeking summary judgment bears the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party demonstrates no issue of material fact exists, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. A party cannot defeat a summary judgment motion by relying on the allegations set forth in the complaint, unsupported conjecture, or conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Ch. 2003). Summary judgment thus should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. In determining whether to grant summary judgment, the court must view the evidence in the light most favorable to the nonmoving party. Curley v. City of N. Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014); Hernandez, 343 F.3d at 1112.
A dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). There is no genuine issue for trial “(w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Discussion
Magee alleges claims for discrimination and retaliation based on her physical and mental disabilities under the ADA and Oregon law. Specifically, Magee argues that Trader Joe's harassed her by asking for medical verification of her disabilities, placed her on unpaid leave while engaging in the interactive process, negatively evaluating her performance based on her disability and denying her a pay increase, changing her job duties, excluding her from meetings, and no longer permitting her to work from home, all of which created working conditions that were so egregious and intolerable, they amounted to a constructive discharge or a hostile work environment. Magee asserts that Trader Joe's failed to reasonably accommodate her disabilities under the ADA and Oregon law, causing her to resign her employment. Magee also contends that Trader Joe's interfered with her right to intermittent medical leave under FMLA and OFLA by failing to retroactively designate her absences as leave-protected and to revoke her written warning and negative performance evaluation, and by delaying the designation of her unpaid leave, nearly causing her to lose her health insurance benefits. Lastly, Magee argues that Trader Joe's retaliated against her because she filed a claim with BOLI asserting violations under disability and leave laws, violating O.R.S. § 659A.199.
Trader Joe's moves for summary judgment on Magee's claims because she admits that her wrist-related medical restrictions were fully accommodated, and that she failed to supply medical documentation substantiating that her absences were for mental health reasons, and as soon as she did, it granted her request for intermittent leave. Trader Joe's further argues that after granting Magee's requested accommodations, she continued to work eight more months, then quit to return to art school, and that it is entitled to summary judgment on her constructive discharge claim.
I. Disability Discrimination and Retaliation Claims One through Four
A. Standards Discrimination and Retaliation
Both the ADA and Oregon law prohibit discrimination based on disability in hiring, advancement, compensation and other terms and conditions of employment. 42 U.S.C. § 12112(a); Or. Rev. Stat. § 659A.112(a). The court analyzes Magee's claim for disability discrimination and retaliation under the ADA and Oregon law together because the state statute is to be construed consistent with any similar provisions under the ADA. Or. Rev. Stat. § 659A. 139(1) (providing that Oregon disability 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 (“ADA”)); Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001) (“The standard for establishing a prima facie case of discrimination under Oregon law is identical to that used in federal law.”); Kelly v. Boeing Co., 400 F.Supp.3d 1093, 1107 (D. Or. 2019) (same). On summary judgment, disability discrimination and retaliation claims under the ADA and Oregon's disability law are analyzed under the familiar burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Mayo v. PCC Structurals, Inc., 795 F.3d 941, 943 (9th Cir. 2015); Kelly, 400 F.Supp.3d at 1107 (“The Court applies the familiar burden shifting framework outlined in McDonnell Douglas Corp. v. Green to ADA and Oregon disability discrimination and retaliation claims.” (internal quotation marks and citation omitted)).
Under that framework, an employee challenging an adverse employment action has the initial burden of establishing a prima facie case of discrimination and retaliation. Mayo, 795 F.3d at 944; Curley, 772 F.3d at 632; Kelly, 400 F.Supp.3d at 1107. To establish a prima facie case of disability discrimination, Magee must show: (1) she is disabled; (2) she is qualified; and (3) she suffered an adverse employment action because of her disability. Nunies v. HIE Holdings, Inc., 908 F.3d 428, 433 (9th Cir. 2018); Mayo, 795 F.3d at 944; Kelly, 400 F.Supp.3d at 1107; Mejia v. Lamb Weston, Inc., Case No. 2: 18-cv-01903-SU, 2020 WL 363387, at *6 (D. Or. Jan. 22, 2020). Similarly, to establish a prima facie case of disability retaliation, Magee must show: ‘“(1) involvement in a protected activity, (2) an adverse employment action and (3) a causal link between the two.'” Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003) (quoting Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000)).
“The burden then shifts to the employer to provide a legitimate, nondiscriminatory (or nonretaliatory) reason for the adverse employment action.” Curley, 772 F.3d at 632; McDonnell Douglas, 411 U.S. at 802; Mayo, 795 F.3d at 944. “If the employer does so, then the burden shifts back to the employee to prove that the reason given by the employer was pretextual.” Curley, 772 F.3d at 632; McDonnell Douglas, 411 U.S. at 804. The Supreme Court has instructed that “the plaintiff may establish pretext ‘either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
The Ninth Circuit has clarified that ADA discrimination claims must be evaluated under a “but for” causation standard, meaning “the adverse employment action would not have occurred but for the disability.” Murray v. Mayo Clinic, 934 F.3d 1101, 1105 (9th Cir. 2019); accord Natofsky v. City of New York, 921 F.3d 337, 349-50 (2d Cir. 2019) (granting summary judgment to city because Natofsky failed to demonstrate that his hearing disability was the “but for” cause of his demotion); Gentry v. E. W. Partners Club Mgmt. Co., 816 F.3d 228, 234 (4th Cir. 2016) (holding that ADA requires a “but for” causation standard). Summary judgment is appropriate where no reasonable jury could find that the defendant's actions were taken because of a discriminatory or retaliatory motive. See T.B. ex rel Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 473 (9th Cir. 2015) (granting summary judgment where no reasonable jury could find district would have failed to provide nurse for disabled student but for desire to retaliate); accord Cooper v. Dignity Health, 438 F.Supp.3d 1002, 1015-16 (D. Ariz. 2020), appeal filed (9th Cir. Mar. 5, 2020) (discussing that to establish ADA claim, employee must show that “but for” employer's alleged retaliatory motive, employee would not have been terminated for attendance policy violations).
B. Analysis Discrimination and Retaliation
For purposes of this motion, Trader Joe's does not challenge Magee's prima facie case on the questions of whether she suffers a disability or is a qualified individual. Instead, Trader Joe's argues that Magee has not identified any adverse employment action because her requested accommodations were granted, and she continued working until she voluntarily resigned on July 3, 2018. Trader Joe's also argues that even if Magee has established a prima facie case, summary judgment nevertheless is appropriate because legitimate, non-discriminatory reasons exist for its actions and there is no evidence of pretext. Trader Joe's also contends that Magee has failed create an issue of fact of a wrongful constructive discharge or hostile work environment.
To establish a prima facie case in claims one through four, Magee must show proof of an adverse employment action. Given that Magee continued to work at Trader Joe's for eight months after she requested accommodation and her admission that her requests were granted, there is a question whether she can satisfy this element of her claims. Magee contends that she suffered several discreet adverse employment actions as part of course of conduct to persistently harass her because of her disabilities that culminated in her resignation. Magee complains of several actions, including: (1) verification of her wrist restrictions; (2) being placed involuntarily on unpaid leave; (3) receiving a written warning based on her absences on June 16, 2017; (4) receiving a negative performance evaluation and being denied a pay increase in August 2017; (5) receiving a negative performance evaluation in February 2018; and (6) being constructively discharged in June 2018. The court examines each discreet instance to determine if it constitutes an adverse employment action, whether Trader Joe's has articulated legitimate, non-discriminatory reasons for its actions, and whether Magee has shown that Trader Joe's stated reasons are pretext for discrimination or retaliation. The court then will determine whether Magee was constructively discharged or if Trader Joe's actions created a hostile work environment.
1. Carroll's request for verification of Magee's wrist restrictions
Magee argues that Carroll's request for updated information and alleged confusion about her lifting restrictions was simply a pretext for disability discrimination. Magee argues that she had not been performing the cash register duties since her 2014 accommodation request, and that her 2017 requested accommodations did not represent a functional change from her previous duties. According to Magee, asking for updated verification of her 2014 ADA accommodation was a “pretextual justification to revisit work restrictions that were inconvenient” and for Trader Joe's to avoid the precedent those restrictions would set for other workers. (Pl.'s Resp. at 22.) Trader Joe's contends that Carroll's June 12, 2017 request for updated information about her limitations is not an adverse employment action and, even presuming that it could be so construed, its reasons for requesting updated information are legitimate; thus, Magee fails to establish pretext. Trader Joe's is correct.
When approving her accommodations in 2014, Trader Joe's told Magee it “may periodically request” an update from her physician, and that it is permitted to do so under the ADA. (Sykes Deci. Ex. 3 at 4-5.) Under the ADA, employers may request periodic information from an employee's physician about their accommodations that are job-related and consistent with business necessity. 42 U.S.C. § 12112(d)(4)(B) (providing how and under what circumstances employers may make inquiries into employee's ability to perform job-related functions); Hoang v. Wells Fargo Bank, N.A., 724 F.Supp.2d 1094, 1105-06 (D. Or. 2010) (recognizing that under ADA, employers may periodically ask for reasonable documentation on the need for reasonable accommodations). See also Oak Harbor Freight Lines, Inc. v. Antti, 998 F.Supp.2d 968, 98081 (D. Or. 2014) (finding employer's request for doctor's note for each use of intermittent leave did not violate ADA, granting summary judgment to employer); Brooks v. Agate Resources, Inc., Case No. 6:15-cv-00983-MK, 2019 WL 2635594, at *7-8 (D. Or. Mar. 25, 2019), adopted 2019 WL 2156955 (May 14, 2019) (recognizing the employer may request that employee provide medical records to support reasonable accommodation requests and ask for additional information when consistent with business necessity, dismissing disability discrimination claims based on an improper inquiry).
Here, Magee proffers no evidence demonstrating that Carroll's request for updated medical documentation was not job-related or consistent with business necessity. Magee does not identify any evidence that Carroll, Wilson, or anyone at Trader Joe's repeatedly requested medical documentation about her wrist condition or accommodations in an effort to harass her. On the contrary, the evidence is undisputed that it had been three years since Magee's physician provided documentation supporting her accommodations. Viewing the evidence in the light most favorable to Magee fails to show that Carroll's one-time request is an adverse employment action.
Presuming arguendo that simply asking for the additional information could constitute an adverse employment action and that Magee has established a prima facie case, Trader Joe's proffers legitimate, non-discriminatory reasons for doing so. Wilson testified in her deposition that Magee began complaining of performing work other than store art, and of pain in her right hand in addition to her left, and thus Wilson sought assistance from Carroll about how to proceed. (Symes Deci. Ex. 4, Wilson Dep. 62:7-21.) Given that three years had passed, and there was a concern from Wilson about the scope of Magee's restrictions, the court finds that Trader Joe's has provided legitimate, non-discriminatory reasons for Carroll's June 2017 request. Hoang, 724 F.Supp.2d at 1105-06.
Thus, the burden shifts to Magee to identify evidence to support her contention that Trader Joe's request for updated medical information about her restrictions is simply a pretext for discrimination. See Mayes v. WinCo Holdings, Inc., 846 F.3d 1274, 1280 (9th Cir. 2017) (providing that employee may show pretext directly or indirectly, by showing that the employer's explanation is unworthy of credence because it is inconsistent or unbelievable); Brown, 336 F.3d at 1187-88 (providing that circumstantial evidence of pretext must be specific and substantial to survive summary judgment). Magee argues that Trader Joe's reasons are unbelievable because her 2014 medical restrictions already precluded cash register work and that she had not worked the cash register in three years. Magee also suggests that Trader Joe's reasons are pretextual because it was concerned about setting a precedent for other employees if it granted her accommodation. (Pl.'s Resp. at 22.) Magee's contentions fail for three reasons.
First, Magee has not shown that Dr. Denker's 2014 accommodations precluded her from working the cash register. Dr. Denker's paperwork included limitations concerning Magee's left wrist and repetitive lifting only. (Sykes Deci. Ex. 3 at 4-5.) Contrary to Magee's contention, neither Dr. Denker's 2014 accommodation request nor Trader's Joe's 2014 accommodation letter excuse Magee from working the cash register. Second, aside from her unsupported contentions, Magee proffers no evidence that she had not performed cash register work for three years, and her unsupported assertion cannot create a genuine issue of fact for trial. See Ellis v. Vial Father ingham LLP, Case No. 3:19-cv-01945-AC, 2019 WL 1553676, at *9-10 (D. Or. Feb. 1, 2019), adopted2019 WL 1553671 (Mai-. 5, 2019) (holding where employee failed to identify facts to rebut employer's evidence, employee did not create genuine issue of fact). Third, Magee's contention that Trader Joe's was concerned about setting a precedent for other disabled employees to seek an accommodation from working the cash register, even if true, is disproved by the undisputed fact that Trader Joe's granted that specific accommodation in 2017. See Kelley v. Amazon.com, Inc., 652 Fed.Appx. 524, 527 (9th Cir. 2016) (upholding summary judgment for employer; previously freely given FMLA leave as accommodation for illness undermined inference of pretext where five instances of leave used in month prior to termination).
Therefore, the court concludes that Magee has not identified specific and substantial evidence that Carroll's June 2017 request for updated information about her accommodations was more likely motivated by discrimination or retaliation, or that Trader Joe's explanation for its request is “unworthy of credence.” Brown, 336 F.3d at 1188 (internal quotation omitted). Therefore, there is no genuine issue of fact that Carroll's request for documentation was a pretext for disability discrimination. Hoang, 724 F.Supp.2d at 1106 (granting summary judgment to employer where no evidence that employer's request for medical information concerning employee's accommodation was pretextual).
2. three weeks of unpaid leave
Magee contends that placing her on unpaid leave immediately after Trader Joe's received Dr. Denker's June 26, 2017 ADA accommodation request was unreasonable, and that it only reinstated her because her attorney sent a letter demanding reinstatement. Trader Joe's argues that placing Magee on unpaid administrative leave while it reviewed the updated wrist restrictions and considered whether it could accommodate her request to not work the cash register on a permanent basis does not constitute adverse employment action. Trader Joe's asserts that Magee's three weeks of unpaid leave is not an adverse employment action because ultimately it accommodated her request.
“The Ninth Circuit defines adverse employment actions broadly.” Shepard v. City of Portland, 829 F.Supp.2d 940, 960 (D. Or. 2011). Where discrimination is alleged, an “adverse employment action is one that ‘materially affect[s] the compensation, terms, conditions, or privileges of. . . employment.'” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (brackets in original) (discussing adverse employment action in Title VII case). Where retaliation is alleged, “[a] variety of actions have met this definition, including: a lateral transfer, or refusing a lateral transfer; undeserved negative performance evaluations or job references if motivated by retaliatory animus and not promptly corrected; being excluded from meetings, seminars and positions that would have made plaintiff more eligible for salary increases; being denied secretarial support; eliminating job responsibilities; and failure to be promoted or be considered for promotion.” Shepard, 829 F.Supp.2d at 960 (collecting cases defining adverse employment actions under various statutes). “Whether a particular [event or action] is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiffs position, considering all the circumstances.” Burlington N. &Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006) (citation and internal quotations omitted). Plaintiff bears the burden of demonstrating how a reasonable employee would have found the challenged actions materially adverse. Retherford v. Portland Public Schools, Case No. 3: 18-cv-00401-JR, 2019 WL 7879880, at *14 (D. Or. Dec. 3, 2019), adopted as modified, 2020 WL 168853 (Jan. 13, 2020) (examining potential adverse employment actions in Title VII case). “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.” Bolek v. City of Hillsboro, Case No. 3: 14-cv-00740-SB, 2016 WL 9455411, at *12 (D. Or. Nov. 14, 2016) (quoting Burlington N, 548 U.S. at 68), adopted 2017 WL 627218 (Feb. 13, 2017). “In adopting the ‘reasonable employee' standard, the Supreme Court has emphasized that alleged harms are to be judged by an objective standard that takes into account the particular circumstances under which they occur.” Id.
Unpaid medical leave itself may be a reasonable accommodation under the ADA. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999); Hawley v. Travelers Cos., Inc., Case No. 2:14-cv-38-RMP, 2015 WL 1884058, at *6 (E.D. Wash. Apr. 24, 2015) (finding placing employee on unpaid leave while engaging in interactive process was not adverse employment action). However, placing an employee on unpaid leave involuntarily may be considered an adverse action. See Steenmeyer v. Boeing Co., 92 F.Supp.3d 1024, 1031 (W.D. Wash. 2015) (finding placing employee on involuntarily on unpaid leave was adverse employment action and denying summary judgment); Dawson v. Akai Sec., Inc., 660 Fed.Appx. 504, 505 (9th Cir. 2016) (finding that placing employee on unpaid leave for two months while employer delayed the interactive process presented issue of fact on ADA discrimination and retaliation claims); EEOC v. UPS, Case No. CV-15-01935-PHX-GMS, 2017 WL 3503676, at *2, 5 (D. Ariz. June 19, 2017) (noting that forced indefinite unpaid leave of absence was adverse employment action).
Viewing the evidence in the light most favorable to Magee, the court finds that Magee suffered a materially adverse employment action when she was placed on unpaid leave from July 26, 2017, through August 21, 2017. Additionally, the close temporal proximity between providing Trader Joe's with her updated physical accommodation request on July 3, 2017, and placing her on unpaid leave on July 26, 2017, establishes causal link between her request and the adverse action. See Hamilton v. Glaxo Smith Kline, LLC, 414 F.Supp.3d 1286, 1297 (D. Mont. 2019), appeal filed (9th Cir. Nov. 21, 2019) (holding that close temporal proximity may be sufficient to establish causation for prima facie case of disability discrimination). A reasonable employee being immediately placed on unpaid leave for a period of three weeks after seeking accommodations could be dissuaded from seeking accommodations. Thus, the court finds that Magee has established a prima facie case of discrimination and retaliation, and the burden shifts to Trader Joe's to proffer a legitimate non-discriminatory reason for placing her on leave.
Trader Joe's contends that the three weeks of unpaid leave was necessary for it to consider whether it could accommodate Magee's cash register restrictions on a permanent basis. Trader Joe's argues that it was concerned about accommodating a “no register work” request and whether it would create a precedent for other employees. Trader Joe's has submitted evidence indicating that cash register work is an important part of being a crew member, as reflected in its job description. (Symes Deci. Ex. 1.) And, Carroll expressed concerns that Magee's work exceeded Dr. Denker's additional restrictions. From these premises, Trader Joe's observes that if it decided not to accommodate the cash register work on a permanent basis, Magee would not be qualified to work. See Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9tli Cir. 2012) (“It is a rather common-sense idea . . . that if one is not able to be at work, one cannot be a qualified individual.”). Trader Joe's thus contends that it was entitled to place Magee on a short period of leave while it determined whether it could accommodate her request. Trader Joe's then concludes that because ultimately it granted her accommodations, there can be no actionable ADA violation and it is entitled to summary judgment on this claim.
The court disagrees. Although short period of leave while Trader Joe's assessed whether it could grant Magee the accommodation she requested could be a legitimate, non-discriminatory reason, the issue is whether such leave should have been unpaid. It is on this issue that Magee goes beyond temporal proximity to establish specific and substantial evidence of pretext to show that a discriminatory or retaliatory reason more likely motivated Trader Joe's actions. Hamilton, 414 F.Supp.3d at 1298. Magee identifies one email in which Tim Martin and Wilson expressed a concern about her requested accommodations including “no register work, ” and that Magee would brag about that accommodation to other employees. (Sykes Deci. Ex. 7 at 7.) Magee also complains that the interactive process was too lengthy, and that Trader Joe's did not reinstate Magee to work until her attorney became involved.
Viewing the evidence in the light most favorable to Magee, the court finds that Magee has demonstrated a genuine issue of material fact that but for her accommodation request, she would not have been placed involuntarily on unpaid leave. Trader Joe's immediately placed Magee on unpaid leave after receiving her request and was concerned about other employees seeking a similar request if it granted her request. A reasonable jury could conclude that Trader Joe's was reluctant to grant Magee's accommodation request and placed her immediately on unpaid leave to discourage not only her, but also other employees, from making similar requests. See Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000) (“An action is cognizable as an adverse employment action if it is reasonably likely to deter employees from engaging in protected activity.”). Thus, the court finds that Magee has created a genuine issue of material fact as to whether she was placed on unpaid leave because of her disability or to retaliate against her for seeking accommodations for the period of unpaid leave only.
3. June 16, 2017 written warning for attendance
Magee argues that her written warning on June 16, 2017 is an adverse employment action. Magee contends that Wilson knew she suffered from anxiety and depression because she had previously disclosed her mental health conditions to Wilson, and that disciplining her violates the ADA. According to Magee, Trader Joe's should have “rescinded] the discipline” after she “furnished updated medical verification of her mental health symptoms” in August 2017. (Pl.'s Resp. at 15.) Magee also suggests that Trader Joe's failed to follow its own internal disciplinary policy because it failed to suspend its disciplinary process after she submitted a note from Dr. Denker dated May 22, 2017, and was aware that her attendance issues were related to ongoing mental health issues. (Pl.'s Resp. at 9.)
The court disagrees for multiple reasons. First, Magee has not established that the written warning materially affected the terms and conditions of her employment. Magee was not demoted or punished as a result of the written warning itself. Sanchez v. Cal., 90 F.Supp.3d 1036, 1056 (E.D. Cal. 2015) (“Written warnings and performance improvement plans are not adverse employment actions where they do not materially affect the terms and conditions of employment.”); see also Wilkins v. Brandman Univ., Case No. 3:17-cv-01099-BR, 2019 WL 3558172, at * 13 (D. Or. Aug. 5, 2019), appeal dismissed2020 WL 773489 (9th Cir. Feb. 4, 2020) (finding disciplinary counseling memoranda were not adverse employment actions in race discrimination case because they did not result in demotions, decrease in privileges, or ineligibility for promotions); Neely v. Boeing Co., No. C 16-1791-JCC, 2019 WL 2178648, at *6 (W.D. Wash. May 20, 2019), appeal filed (9th Cir. May 20, 2019) (finding corrective action memo was not adverse employment action in age-based retaliation claim); Davis, 520 F.3d at 1089. Thus, the written warning is not a materially adverse employment action.
Second, Dr. Denker's May 22, 2017 note does not excuse Magee's earlier absences due to her mental health conditions. The May 22 note explained that Magee was recently in a car accident was experiencing increased panic and anxiety, and that her symptoms were worse with driving or being in a car. (Sykes Deci. Ex. 3.) Magee admitted in her deposition that the May 22 note did not excuse her absences. (Symes Deci. Ex. 3, Magee Dep. 104:4-13.) And, Magee testified that when she provided the May 22 note to Trader Joe's, she did not inform anyone that it was related to her earlier absences or her need for a flexible schedule. (Id. 103:3-7.) Magee does not suggest, nor does the evidence support, that her mental health issues prevented her from asking for accommodations. Shepard, 829 F.Supp.2d at 964 (finding employee could not pursue disability discrimination claim based on generalized statements and employee's anxiety did not prevent employee from requesting accommodation; interactive process not triggered until ADA accommodation request form completed).
Third, Magee did not provide Dr. Denker's FMLA paperwork requesting intermittent leave for her anxiety and depression until August 21, 2017, well after the June written warning. Dr. Denker's August 2017 FMLA paperwork requested intermittent leave for Magee's anxiety and depression prospectively only; it did not mention any previous absences. Magee identifies no documentation from Dr. Denker or any other provider excusing her absences that occurred prior to the date of the written warning, June 16, 2017.
Fourth, contrary to Magee's contentions, Wilson did not fail to follow Trader Joe's internal disciplinary policy. Wilson encouraged Magee to provide some kind of documentation about her prior absences, and only after Magee failed to provide it did Wilson reprimand Magee for her ongoing attendance issues. Magee testified in her deposition that Wilson explained to her the information she needed to provide, and further testified that she knew Dr. Denker's May 22 note was inadequate to excuse her earlier absences, yet provided it to Trader Joe's anyway, and failed to follow up with Dr. Denker. (Symes Deel. Ex. 3 Magee Dep. 103:14-18, 104:4-13.)
Based on this evidence, the court concludes that no reasonable juror could conclude that Magee suffered an adverse employment action when Trader Joe's issued a written warning in June 2016 for her unexcused absences, tardies, or leaving early without permission. Thus, Magee fails to establish a prima facie case of discrimination or retaliation on this basis.
4. negative evaluation and denied pay step increase in August 2017
Magee contends that the June 2017 written warning for attendance issues laid the groundwork for her negative August 2017 performance review, and that she was denied a step increase in her pay. (Pl.'s Resp. at 23.) Again, Magee argues that her mental health conditions are at the root of her attendance issues, and that Trader Joe's discriminated and retaliated against her based on her disability by issuing the negative performance review and denying her a pay increase. (Pl.'s Resp. at 23-24.)
An undeserved negative performance review may constitute an adverse employment action. Brooks, 229 F.3d at 928. As discussed above, the August 2017 performance review shows that Magee met expectations in ten categories but needed improvement in five categories. (Sykes Deci. Ex. 5 at 1.) The review noted that Magee was not fulfilling her basic job requirements and she was instructed to make sustained immediate improvement. (Id.) The narrative portion of the August 2017 evaluation also explained that Trader Joe's was aware of Magee's wrist restrictions but that Magee should look for additional ways to help out other crew members. The review also noted that Magee had a number of attendance issues during the review period. She did not receive a step increase.
Magee does not identify any documentation that excuses her absences, tardies, or early dismissals or where she asked that such actions be undertaken. And, Magee did not request intermittent leave for her mental health issues until August 21, 2017, after the evaluation was written. These circumstances did not require Trader Joe's to stop or suspend discipline or negative consequences simply because Magee asked for an accommodation. Magee cites no controlling authority to support her theory that Trader Joe's was required to undo the discipline upon which the negative evaluation and consequent denied step increase in pay was premised simply because she sought accommodations. See Rozairo v. Wells Faro Bank Nat'l Ass'n, Case No. 3: 17-cv-00012-SI, 2019 WL 3219328, at *7 (D. Or. July 17, 2019) (finding employee failed to show that termination for attendance reasons was because of disability and not attendance issues, granting summary judgment to employer); compare Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1113 (9th Cir. 2000) (holding that a mediocre evaluation did not violate Title VII where it did not give rise to any further negative employment action), and Lyons v. England, 307 F.3d 1092, 1118 (9th Cir. 2002) (“Our precedent dictates that the [‘fully successful'] evaluations ... do not rise to the level of an adverse employment action by the employer, and, as a result, [plaintiff] has failed to make out a prima facie case of unlawful retaliation.”), with Glass v. Intel Corp., Case No. CV 06-671-PHX-MHM, 2007 WL 2265663, at *3 (D. Ariz. Aug. 6, 2007) (finding that employee who received a very negative review while out on leave and not given raise contrary to company policy was adverse employment action).
Additionally, although Magee was denied a step increase in pay at that time, she was granted a pay increase in February 2018, and thus any potential negative consequences from the August 2017 review were short-lived. “Potentially adverse employment actions that are not final or lasting are insufficient to constitute actionable adverse actions.” Marrazzo v. Leavitt, 719 F.Supp.2d 1297, 1307 (D. Or. 2010) (discussing adverse actions in disability retaliation context). Magee has not identified any evidence demonstrating how frequently step increases were given or denied, and she has not presented any evidence that a reasonable employee would find the negative August 2017 evaluation had a materially adverse impact on her day-to-day employment conditions. Thus, the court finds that Magee has failed to show that the August 2017 negative performance evaluation and denied step increase in pay was undeserved. Because she has failed to show that it was an adverse employment action, she cannot establish a prima facie case. See Brooks, 229 F.3d at 929-30 (holding that downgraded performance review from satisfactory to needs improvement was not an adverse employment action because there was no evidence that it was undeserved or final).
Even if the August 2017 performance review could be considered an adverse employment action, the court finds that Trader Joe's has provided legitimate, non-discriminatory reasons for the negative evaluation: Magee's lackluster performance and unexcused absences discussed above. Thus, the burden shifts to Magee to show that the negative performance evaluation and denied step increase were because of a discriminatory or retaliatory motive or that Trader Joe's reasons were pretextual.
It is difficult to discern Magee's specific arguments on pretext. Magee appears to argue that she was reprimanded for her attendance issues and not being a “team player” because the August 2017 review mentions her wrist restrictions and that she needed to look for additional ways to assist. The court disagrees that this is evidence of an impermissible motivation or demonstrates that Trader Joe's reasons are not credible or believable.
The evidence reveals that Magee's attendance issues and lack of effort in assisting her coworkers was an issue that had been raised previously, well before the events at issue. For example, Magee's July 2015 performance evaluation provided that “she needs to be aware of what the rest of the crew deals with . . . and look for opportunities to help” and she “should watch her attendance.” (See Symes Deci. Ex. 7 at 24). Magee's July 2016 performance evaluation observed that she needed to improve her support for “the team by being reliable, ” and again she was noted to have attendance issues. (Id. at 25.) And, in February 2017, Magee was encouraged to participate in activities beyond artwork, help “the team when the store is busy, ” and improve her attendance. (Id. at 26.) Thus, Magee's issues with attendance and assisting he co-workers were raised several times before the August 2017 performance evaluation and before she sought accommodation for her mental health issues. Thus, Magee has not shown that Trader Joe's reasons for the August 2017 performance review and her denied step increase are unworthy of credence. See Newell v. Ariz. Bd. of Regents, Case No. 18-cv-01903-PHX-JAT, 2020 WL 1694735, at *5 (D. Ariz. Apr. 7, 2020) (finding employee's performance issues were present before FMLA leave taken and thus negative performance review did not support inference of pretext). Against this evidence, Magee does not dispute that she never provided documentation to excuse her absences in the first half of 2017. Thus, she fails to identify specific and substantial circumstantial evidence that she received the negative performance evaluation because of a desire to discriminate or retaliate. Cooper, 438 F.Supp.3d at 1015-16 (holding employee failed to create issue of fact on pretext, granting summary judgment to employer).
5. February 2018 performance evaluation
Magee contends that the February 2018 performance evaluation was devastating and constitutes an adverse employment action. The evidence does not support this characterization: to the contrary, Magee received positive ratings in thirteen of fifteen categories, an overall “Meets Expectations” rating, and step-increase in pay. See Shepard, 829 F.Supp.2d at 962 (concluding employee's performance review overall was “effective” even if employee characterized it as negative and was not actionable adverse action). A satisfactory job performance is not an adverse employment action. See Campbell v. Hawaii Dep't of Educ., 892 F.3d 1005, 1013 (9th Cir. 2018) (holding satisfactory performance evaluation that had no impact on job was not adverse employment action); Kortan, 217 F.3d at 1113 (holding less than perfect performance evaluation, but that “meets expected standards” was not discriminatory or retaliatory). While Magee contends she took offense to some of the statements in the review because she believed she had made improvements, Magee simply has failed to identify any evidence in the record that she suffered any materially adverse working conditions as a result of the February 2018 performance review. See Leighton v. Three Rivers Sch. Dist., No. 1: 12-cv-1275-CL, 2015 WL 272894, at *7 (D. Or. Jan. 20, 2015), affd, 693 F.3d 662 (9th Cir. 2017) (placing employee on performance improvement plan did not materially affect compensation, terms, conditions, or privileges of employment, thus was not adverse action). Viewing the record in the light most favorable to Magee, the court finds that no reasonable juror would conclude that the positive February 2018 performance review materially adversely affected the terms and conditions of Magee's employment. On this record, it does not constitute an adverse employment action.
In summary, the court concludes that Magee has presented a genuine issue of material fact on her claims for disability discrimination and retaliation as concerning Trader Joe's placing her involuntarily on unpaid leave from July 26 to August 21, 2017 only. Trader Joe's motion for summary judgment on Magee's claims one through four should otherwise be granted.
C. Disparate Treatment and Disparate Impact
Magee's disparate treatment and disparate impact theories are not well-developed. In her briefing, Magee alleges that Trader Joe's heated her less favorably than similarly situated nondisabled persons when it placed her involuntarily on unpaid leave. (Pl.'s Resp. at 24-25.) Magee also contends that Trader Joe's failure to follow its own facially neutral disciplinary policy has a disparate impact on disabled employees. (Id. at 25.)
To establish a prima facie case of disparate treatment, a plaintiff may rely on the McDonnell Douglas burden shifting approach, or may “‘simply produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated' the defendant and that the defendant's actions adversely affected the plaintiff in some way.” Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158 (9th Cir. 2013) (quoting McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)). Because the court has concluded that Magee has created a genuine issue of material fact with respect to Trader Joe's decision to place her on unpaid leave gives rise to an inference of discrimination or retaliation, the court similarly finds that Magee has created a genuine issue of material fact under a disparate treatment theory concerning her claim for unpaid leave only.
However, Magee's remaining claims under a disparate treatment theory fail because she has not created a create genuine issue of fact concerning Trader Joe's discriminatory or retaliatory intent or motivation with respect to any other alleged adverse employment action. The court additionally observes that Magee has proffered no evidence whatsoever to establish that similarly situated employees outside of her protected class were treated more favorably, and to the extent her disparate treatment theory is premised on such conduct, Trader Joe's should be granted summary judgment. Finally, Magee offers no evidence whatsoever to support her contention that Trader Joe's disciplinary policy disproportionately negatively impacts employees with disabilities, thus requiring no further discussion from the court. Accordingly, Trader Joe's summary judgment motion should be granted on Magee's disparate treatment and disparate impact theories in claims one through four as described herein. See Lopez v. Pac. Maritime Ass 'n, 657 F.3d 762, 766 (9th Cir. 2011) (granting summary judgment to employer on ADA disparate impact claim where evidence failed to show disproportionate impact).
II- Constructive Discharge Claims One through Four
A. Standards
Constructive discharge requires that plaintiff show “the abusive working environment became so intolerable that resignation qualified as a fitting response.” Pa. State Police v. Suders, 542 U.S. 129, 134 (2004). The Ninth Circuit requires a plaintiff to show that the employer “create[d] working conditions that are ‘sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood.'” Poland v. Chertoff, 494 F.3d 1174, 1186 (9th Cir. 2007) (quoting Brooks, 229 F.3d at 930). The Ninth Circuit has established a high bar for constructive discharge claims: “anti discrimination policies are better served when the employee and employer attack discrimination within their existing employment relationship, rather than when the employee walks away and then litigates whether his employment situation was intolerable.” Id. (citation omitted). The Poland court noted that “[a]n employee who quits without giving his employer a reasonable chance to work out a problem has not been constructively discharged.” Id. at 1185; see also Marrazzo, 719 F.Supp.2d at 1305; Dearmon v. Ferguson Enters., Inc., Case No. 1:14-cv-01375-CL, 2015 WL 6550734, at *9 (D. Or. Oct. 28, 2015). To demonstrate constructive discharge under Oregon law, Magee must show “that she experiencefd] a concrete change in the terms and conditions of her employment that caused her to resign.” Wiederhold v. Sears, Roebuck and Co., 888 F.Supp.2d 1065, 1083 (D. Or. 2012) (quoting Wood v. GCC Bend, LLC, 270 Fed.Appx. 484, 486 (9th Cir. 2008); accord Kallio v. Columbia Cty. Dep‘t of Roads, Case No. cv- 07-1211-HU, 2009 WL 103565, at *7 (D. Or. Jan. 13, 2009) (“to prove constructive discharge [under Oregon law], a plaintiff must show that (1) the employer intentionally created working conditions that (2) were so intolerable that a reasonable person would have resigned; and (3) the employer created these conditions because it wanted the employee to resign; and (4) the employee left because of those conditions.”).
B. Analysis
Magee argues that her working conditions became so intolerable due to the ongoing harassment about her medical restrictions, the negative performance evaluations, her exclusion from workplace meetings, changes to her work assignments, and differential treatment, that she had no choice but to resign on July 3, 2018. Magee contends her mental health symptoms spiked due to Trader Joe's conduct. Trader Joe's responds that Magee has not identified objectively intolerable conditions at the time she resigned. Trader Joe's also argues that Magee failed to provide Trader Joe's any opportunity to correct any alleged problem she was experiencing, and therefore, cannot establish a constructive discharge claim as a matter of law. Trader Joe's is correct.
A careful review of the record reveals only a handful of instances upon which Magee relies for her claim that Trader Joe's created intolerable conditions. Magee complains that Trader Joe's HR Manager Camiling sent her a letter indicating that she was being returned to “full duty” after receiving Dr. Denker's FMLA request for her mental health restrictions. This instance refers to Camiling's handling of paperwork submitted by Dr. Denker: the ADA accommodation request he completed June 26, 2017, that Magee submitted July 3, 2017, for her physical restrictions (including lifting restrictions and no cash register work), and the FMLA accommodation paperwork he completed on August 8, 2017, that Magee submitted on August 21, 2017, for her mental limitations (seeking unscheduled intermittent leave two days per month only). On August 10, 2017, Camiling sent a letter to Magee indicating that Trader Joe's was agreeing to provide the accommodations proposed by her doctor and inviting Magee to return to work or further engage in the interactive process. (Sykes Deel. Ex. 3 at 13.) On August 23, 2017, Camiling sent another letter to Magee releasing her to “full duty” in light of Dr. Denker's August 8, 2017 paperwork. (Sykes Deci. Ex. 3 at 18.) Trader Joe's contends that Camiling was confused by the two letters and that the situation quickly was rectified. In her briefing, Magee contends Camiling's alleged confusion was intended to harass her.
Magee's deposition testimony belies her characterization and the evidence she identifies fails to establish an issue of fact that Trader Joe's created intolerable conditions. Magee testified in her deposition that she spoke with Wilson on August 27, 2017, and that both Magee and Wilson were upset about the “full duty” letter. (Sykes Deci. Ex. 12, Magee Dep. 140:23-141:15.) Magee testified that she explained to Wilson that one letter was for her physical restrictions, and the other for her mental limitations. (Id. 143:7-17.) In her deposition, Magee admitted Wilson informed her she could continue with her physical accommodations, and that she could leave early that day because she was upset. (Id. at 14110-17.) The evidence further shows that Wilson emailed Camiling about the situation that day, and that the following day, August 28, Camiling called the store to ensure that Magee's physical accommodations remained in place. (Id. at 19.) On September 14, 2017, Trader Joe's sent a letter clarifying that her accommodations remained in place. Contrary to Magee's contentions, there is no evidence that Magee was required to work at “full duty” for any amount of time from September 2017 through June 2018. Thus, the court finds that Magee has failed to show that an objectively reasonable employee in such circumstances would have felt compelled to quit.
Next, Magee complains that she was devasted by the negative August 2017 performance evaluation and denial of a step-increase in pay, but she has presented no evidence that it was provided in an effort to force her to resign. Magee remained on the job for eight months after she received that review. Additionally, as discussed at length above, in February 2018, Magee received a positive performance review; she was rated as “Meets Expectations” in thirteen of fifteen categories and she received a step-increase. Even if Magee was offended or upset by the August 2017 or February 2018 performance evaluations or they were unwarranted, no reasonable jury could find that either or both rose to the level of intolerable and egregious working conditions such that a reasonable person in Magee's position would have felt compelled to resign. Dearmon, 2015 WL 6550734, at *9 (holding that even “unwarranted reprimands for poor performance” do not satisfy “high threshold of objectively extraordinary and egregious conduct” necessary to establish constructive discharge).
Magee argues that Wilson's conduct constituted continued harassment about her work restrictions and was aimed at getting her to quit. Magee argues that in September 2017, Wilson assigned her to perform other Crew Member duties for two hours per shift, yet she was expected to complete the same amount of artwork. (Sykes Deci. Ex. 12, Magee Dep. 166:6-19.) But in her deposition, Magee admitted that performing artwork was within her physical restrictions. (Symes Deci. Ex. 3, Magee Dep. 152:10-14; Sykes Deci. Ex. 12, Magee Dep. 166:13-15.) Magee adds that she no longer was permitted to perform artwork from home as a result of seeking accommodations. Even if true, these conditions do not begin to meet the high bar of objectively extraordinary and egregious conduct necessary to satisfy the constructive discharge standard. See Brooks, 229 F.3d at 928 (“only non-trivial employment actions that would deter reasonable employees from complaining about Title VII violations will constitute actionable retaliation”). Objectively viewed, a reasonable person would not have felt these changes were egregious or intolerable, nor would an objectively reasonable employee have felt compelled to resign when asked to complete store artwork on site. Notably, that Magee did not quit immediately but continued to work at Trader Joe's for many months thereafter suggests that the workplace was not so intolerable that a reasonable person would have felt forced to quit.
Magee contends that after she returned from unpaid leave, she was asked to perform work outside of her restrictions. The record shows that Magee complained that one supervisor, Les Bradwell, was rude to her on August 23, 2017, when she informed him upon her return that she could not work the register. (Sykes Deci. Ex. 12, Magee Dep. 84:10-85:12.) Magee also identified one occasion in August 2017 where Bradwell asked her to “work load” for one hour, and one occasion in October 2017 where Wilson asked her to assist with bagging groceries. (Sykes Deci. Ex. 11 at 1 -2.) Yet, Magee admits that she was not required to perform work outside her restrictions, and that she continued to work through June 2018. Simply being asked on three occasions to perform such work over the course of eight months, and not actually being required to perform work beyond her designated restrictions, would not lead a reasonable person in Magee's situation to feel compelled to quit. Again, the fact that she remained on the job for many more months following these requests suggests that her working conditions were not objectively intolerable or egregious.
Magee contends that she was left out of meetings in June 2018 pertaining to the artwork for flyers and holidays. (Sykes Deci. Ex. 11 at 3.) Magee argues that she was deliberately left out of the meetings. However, ostracism by co-workers does not create a hostile work environment and certainly cannot satisfy the higher bar of constructive discharge. Shepard, 829 F.Supp.2d at 962 (holding “campaign of harassment” to discredit co-worker and undermine his management did not amount to hostile work environment); Brooks, 229 F.3d at 930 (holding ostracism by coworkers is not enough to show an adverse employment action in Title VII case); see also Carroll v. Holder, Case No. 09-cv-3093-CL, 2011 WL 7091804, at *25 (D. Or. Sept. 30, 2011), adopted by 2012 WL 214599 (Jan. 24.2012) (holding that demotion and transfer 275 miles away from home without spouse was not constructive discharge).
Magee argues that her therapist will testify that she was overwhelmed emotionally by Wilson's harassment, and that work had become unbearable. (Deci. Lynne Coon ¶¶ 8-13, ECF No. 34.) Even if Magee was triggered, upset, and overwhelmed by her working conditions, the standard the court must apply is an objective one: “Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign.” Poland, 494 F.3d at 1184. Further, Magee has not presented any evidence that Wilson undertook any actions intending that she resign. McGanty v. Staudenraus, 321 Or. 532, 557 (1995); Sharma v. Providence Health & Servs. Or., 289 Or.App. 644, 659-60 (2018) (granting employer summary judgment where employee did not show evidence detailing that employer was motivated to maintain intolerable working conditions because he complained).
Moreover, Magee admits that she never complained to anyone in Trader Joe's Human Resources about any issues she had with her performance reviews. (Symes Deci. Ex. 3, Magee Dep. 54:3-5, 163:21-24.) In fact, Magee admits she never complained to HR about any of Trader Joe's conduct. (Symes Deci. Ex. 3, Magee Dep. 163:21-24) (“I've never called HR to complain about anything[.]”) Thus, Magee's constructive discharge claim fails as a matter of law. Dearmon, 2015 WL 6550734, at *10 (holding employee's failure to notify human resources of . alleged discrimination based on military status precluded construction discharge claim as matter of law).
The actions about which Magee complains did not occur daily, weekly, or even monthly. Magee admits that she never had to perform activities that were beyond her physical restrictions, admits that her mental limitations were accommodated, and admits that she did not complain to anyone in human resources about her alleged problems before she resigned. Magee has failed to carry her burden of demonstrating that her working conditions had deteriorated to the point that they became sufficiently extraordinary or egregious that a reasonable employee would have felt compelled to resign. Taken collectively, the circumstances about which Magee complains fail to create a genuine issue of material fact that she was constructively discharged. Carroll, 2011 WL 7091804, at *25; Brooks, 229 F.3d at 930. The court concludes that viewing these instances collectively in the light most favorable to Magee, no reasonable person in Magee's position would have felt compelled to resign. See Marrazzo, 719 F.Supp.2d at 1305.
III. Hostile Work Environment Claims One through Four
As part of her disability discrimination clams, Magee appears to allege that she was subjected to a hostile work environment. The Ninth Circuit has not formally recognized such a claim, but instead has assumed arguendo that such claims may be cognizable under the ADA. Meirhofer v. Smith's Food & Drug Ctrs. Inc., 415 Fed.Appx. 806, 807 (9th Cir. 2011). To establish a hostile work environment claim, a plaintiff must show that: ‘“(1) she is a qualified individual with disability; (2) she suffered from unwelcome harassment; (3) the harassment was based on her disability or a request for accommodation; (4) the harassment was sufficiently severe or pervasive to alter the conditions of her employment and to create an abusive working environment; and (5) Defendant[ ] knew or should have known of the harassment and failed to take prompt remedial action.” Cooper, 438 F.Supp.3d at 1016 (quoting Vitchayanonda v. Shulkin, No. ED CV 170349 FMO (SPX), 2019 WL 4282905, at *10 (C.D. Cal. Mar. 29, 2019) (citations omitted)). To assess whether a work environment is sufficiently hostile, courts examine “all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it was physically threatening or humiliating, and whether it unreasonably interfered with an employee's work performance.” Crowley v. Wal-Mart Stores, No. CV 16-00293 SOM/RLP, 2018 WL 4345251, at *8 (D. Haw. Sept. 11, 2018) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)); see also Orio v. Dal Glob. Servs., LLC, No. 14-00023, 2016 WL 5400197, at *16 (D. Guam Sept. 26, 2016) (“Like a hostile work environment claim based on sex, race, or nationality, a sufficiently severe or pervasive hostile work environment based on disability presents a high bar.”).
Magee's hostile work environment is premised on the same alleged conduct as her constructive discharge, discrimination, and retaliation claims: discipline for attendance issues, the August 2017 negative performance review, her exclusion from meetings in June 2018, changes to her work schedule, and poor treatment by managers. Magee appears to contend that Trader Joe's maintained a hostile work environment that caused a spike in her mental health symptoms.
Viewing the evidence in the light most favorable to Magee, examining the totality of the circumstances in this case, she has failed to identify conduct that is sufficiently severe, harassing, or abusive to support a claim for hostile work environment claim under the ADA. See Cooper, 438 F.Supp.3d at 1016 (finding no reasonable juror could conclude that employee subject to hostile work environment, granting summary judgment). The court finds that Magee has failed to demonstrate that the alleged harassment was sufficiently severe or pervasive. As discussed in detail above, the actions by Wilson about which Magee complains are a statement in May or June 2017 that she could not perform ninety percent of the job, a statement that she was not a team player, and a statement that the store was the only location with two full-time artists, and Wilson's question on one occasion asking her to bag groceries in October 2017. These statements are not sufficiently severe or pervasive to create a hostile work environment. Again, the statements did not occur daily, weekly, or even monthly, and Magee failed to tell anyone in Human Resources about any of these alleged ongoing issues. Therefore, even construing the evidence in the light most favorable to Magee, no reasonable jury could conclude that she was subject to a discriminatorily hostile or abusive work environment or that Trader Joe's knew or should have known about the allegedly harassing behavior. Cooper, 438 F.Supp.3d at 1016-17. Accordingly, Trader Joe's motion for summary judgment on this claim should be granted.
IV. Failure to Accommodate/Interactive Process
Employers have an affirmative duty to provide reasonable accommodations to individuals with disabilities. 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a). Thus, once an employer is aware of the need for accommodation, it is obligated to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. Dean v. Safeway, Inc., Case No. 3: 12-cv-01875-PK, 2014 WL 6473543 at *16-17 (D. Or. Nov. 18, 2014) (“the duty to engage in an interactive process is part of the duty to accommodate”). The interactive process “requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process.” Humphrey v. Mem. Hosps. Ass'n, 239 F.3d 1128, 1137 (9th Cir. 2001) (citation omitted). An employer's liability is premised on the employer's breakdown in the process. “Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations that will enable the employee to perform her job duties.” Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 799 (9th Cir. 2017) (internal quotation and citation omitted)). “[T]here exists no stand-alone claim for failing to engage in the interactive process. Rather, discrimination results from denying an available and reasonable accommodation.” Snapp v. United. Transp. Union, 889 F.3d 1088, 1095 (9th Cir. 2018).
It is not clear from Magee's briefing what specific accommodations she asserts Trader Joe's wrongfully refused. In her Complaint, Magee alleges that Trader Joe's denied her a flexible schedule, but Magee does not identify any evidence that this specific accommodation was requested and refused. (Compl. ¶ 35(B)).
To the extent that Magee alleges Trader Joe's failed to accommodate her physical restrictions, her claim fails. Magee admitted several times in her deposition that her wrist impairment and physical restrictions were accommodated: all times. (Symes Deci. Ex. 3, Magee Dep. 56:11-22; 85:22-25; 97:10-20; 151:22-152:14; compare Sykes Deci. Ex. 3 at 11 (detailing requested accommodations for physical limitations), with Ex. 3 at 20 (detailing the accommodations provided)). Thus, Magee has failed to create a triable issue of fact on her claim that she was denied reasonable accommodations for her physical restrictions as required by the ADA and state law.
Magee's failure to accommodate claim appears to center on her mental health limitations. Magee argues in her briefing that Trader Joe's failed to accommodate her disability by failing to excuse her absences, tardies, and early dismissals that occurred in early 2017. (Pl.'s Resp. at 26.) According to Magee, Trader Joe's failure to provide this specific accommodation - forgiving her prior absences - violates federal and state law. Magee is incorrect.
The evidence reveals that Wilson spoke with Magee about her attendance issues in April or May 2017, Magee indicated she was struggling with anxiety and depression, and Wilson asked Magee to provide documentation from her doctor. (Symes Deci. Ex. 3, Magee Dep. 103:12-20.) Magee provided a note from Dr. Denker dated May 22, 2017 - which Magee admitted was insufficient to excuse her earlier absences - provided it to Wilson, and failed to follow up with Dr. Denker. (Id. at 104:4-11.) Relevant to Magree's contention, Dr. Denker's note does not mention her prior attendance issues or contain a request that prior attendance issues be excused. And, when Magee provided Dr. Denker's note to Wilson, Magee acknowledges that she did not inform Wilson or anyone at Trader Joe's that she intended for Dr. Denker's May 22 note to excuse her earlier attendance issues or address her need for intermittent leave. (Symes Deci. Ex. 3, Magee Dep. 103:3-7.) Additionally, Magee does not assert, nor does the record support a finding, that Magee's mental health conditions prevented her from asking for accommodations.
Further, Magee did not ask for any accommodations for her mental health conditions until she submitted Dr. Denker's FMLA accommodation request dated August 8, 2017. The record further demonstrates Magee admitted that after she provided Dr. Denker's FMLA accommodation request for intermittent leave up to two days per month for her anxiety and depression, Trader Joe's fully and promptly provided those accommodations. (Symes Deci. Ex. 3, Magee Dep. 139:24-140:8.) Therefore, Trader Joe's provided all the accommodations that Magee requested for her mental health conditions. (Sykes Deci. Ex. 3 at 18 (detailing intermittent leave for depression and anxiety).
In summary, viewing the evidence most favorably to Magee reveals that Wilson reached out to Magee on attendance issues after learning of Magee's mental health condition, and asked her to provide some documentation. After some three weeks, Magee submitted a note that she admits was insufficient. Dr. Denker's May 22, 2017 note does not request that Magee's earlier absences be excused. Trader Joe's waited an additional month before reprimanding Magee for attendance issues, in which it instructed Magee to provide documentation to get the attendance issues resolved. Again, Magee did not submit additional FMLA documentation excusing her earlier absences. Not until later, in August 2017, did Magee request intermittent FMIA leave on a prospective basis for her mental health conditions. Two days after receiving that request, Trader Joe's promptly granted her request. Thus, Magee has failed to create a triable issue of fact from which a reasonable jury could conclude Trader Joe's either failed to accommodate Magee's mental health conditions or failed to engage in the interactive process in granting those accommodations. See Cooper, 438 F.Supp.3d at 1013 (granting summary judgment to employer on failure to accommodate/failure to engage in interactive process claim where employer facilitated intermittent FMLA leave). Because Trader Joe's provided all the accommodations requested by Magee for her mental health conditions, its motion for summary judgment on Magee's failure to accommodate claims should be granted. See Annenberg v. Clark Cty. Sch. Dist., ____F. App'x___, 2020 WL 3397748 (9th Cir. June 19, 2020) (upholding district court's grant of summary judgment where employee could not show that accommodation provided was unreasonable).
IV. Magee's Medical Leave Claims Five Through Eight
Under the FMLA, employees have two interrelated rights: “first, the employee has a right to use a certain amount of leave for protected reasons, and second, the employee has a right to return to his or her job or an equivalent job after using protected leave.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1122 (9th Cir. 2001) (citing 29 U.S.C. §§ 2612(a), 2614(a)); Seehawer v. McMinnville Water & Light, Case No. 3:16-cv-01682-AC, 2019 WL 1232832, at *11 (D. Or. Mar. 15, 2019). “To vindicate those rights, the courts have recognized two theories of recovery: retaliation or discrimination theory, and the entitlement or interference theory.” Kelly, 400 F.Supp.3d at 1093; Sanders v. City of Newport, 657 F.3d 772, 777 (9th Cir. 2011); accord Benz V. West Linn Paper Co., 803 F.Supp.2d 1231, 1249 (D. Or. 2011).
A discrimination or retaliation claim under FMLA makes it unlawful for an employer to discriminate against an employee for “opposing any practice” made unlawful by FMLA. 29 U.S.C. § 2615(a)(2). Interference claims arise from an employer's attempt to interfere with, restrain, or deny any substantive rights guaranteed by FMLA. Sanders, 657 F.3d at 777-78 (“When a party alleges a violation of § 2615(a)(1), it is known as an ‘interference' or ‘entitlement' claim.”); Kelly, 400 F.Supp.3d at 1111. Under FMLA, an employee has the right to return to the same or an equivalent position as before taking the leave, including benefits, pay, and other terms of employment. 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.214.
OFLA's provisions are construed to the extent possible consistent with similar provisions of FMLA. Benz, 803 F.Supp.2d at 1250; Allred v. Boise Cascade Wood Prods., LLC, Civ. No. 1: 17-cv-01534-CL, 2018 WL 4040238, at *4 (D. Or. July 18, 2018), adopted 2018 WL 4039691 (Aug. 22, 2018). Oregon courts look to federal law when interpreting OFLA. Benz, 803 F.Supp.2d at 1250. OFLA does not, however, provide a cause of action for “interference.” Bolek, 2016 WL 627218, at *12.
Magee's allegations in her fifth, sixth, and seventh claims that Trader Joe's denied her the opportunity to request leave, denied her requests for leave, suspended her employment without designating her leave as protected, rejected her medical verification, and negatively critiqued her performance, are properly construed as interference claims. Magee's allegations in her eighth claim that Trader Joe's discriminated against her and constructively discharged her because she filed a dual charge of discrimination with BOLI and the EEOC under 29 U.S.C. § 2615(a)(2), is properly construed as a retaliation claim. See Allred, 2018 WL 4040238, at *4-5 (discussing that courts construe claims characterized by plaintiff as FMLA discrimination and retaliation as interference regardless of plaintiffs label).
1. FMLA interference - claims five through seven
To sustain a claim for denial or interference with FMLA, Magee must show: (1) she was an eligible employee; (2) Trader Joe's was covered by FMLA; (3) she was entitled to take FMLA leave; (4) she gave sufficient notice of her intent to take leave; and (5) Trader Joe's denied her FMLA benefits to which she was entitled. Sanders, 657 F.3d at 778; Ellis, 2019 WL 1553676, at *8. A plaintiff can prove a FMLA interference claim by using either direct or circumstantial evidence. Bachelder, 259 F.3d at 1125; Ellis, 2019 WL 1553676, at *8. An employer may interfere with an employee's rights under FMLA by ‘“refusing to authorize FMLA leave' and ‘discouraging an employee from using such leave.'” Xin Liu v. Amway Corp., 347 F.3d 1125, 1134 (9th Cir. 2003) (quoting 29 C.F.R. § 825.220).
Magee asserts two primary bases for her medical leave interference claims: (1) Trader Joe's failed to designate her absences occurring in the first half of 2017 as leave-protected, which led to a written warning in June 2017, and a negative performance evaluation and denial of a pay increase in August 2017; and (2) it failed to properly designate her unpaid three-week leave in July to August 2017 as FMLA protected, either at the time or retroactively. Trader Joe's argues that Magee's claims for FMLA interference fail because she cannot establish that she provided sufficient notice or that she was denied FMLA benefits.
Magee argues that Wilson interfered with her FMLA rights because Wilson “never offered to code [her] prior absences, tardies, and early departures as FMLA and OFLA leave.” (Pl.'s Resp. at 34.) Magee has failed to provide any evidence that she provided sufficient notice of her intent to take medically-protected leave for her alleged mental health absences that formed the basis for her attendance issues in first part of 2017. To give proper notice, an employee must, “provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.” 29 C.F.R. § 825.303(b). When the need for leave is unforeseeable, an employee must provide notice “as soon as practicable.” 29 C.F.R. § 825.303(a). FMLA provides that “an employer is responsible, ‘having been notified of the reason for an employee's absence, for being aware that the absence may qualify for FMLA protection,' and for inquiring further to determine if FMLA leave is appropriate.” Ellis, 2019 WL 1553676, at *12 (quoting Bachelder, 259 F.3d at 1113). However, FMLA does not excuse an employee from following “‘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.'” Allred, 2018 WL 4040238, at *5-6 (quoting Dean, 2014 WL 6473543, at *11).
The record contradicts Magee's contentions, because Trader Joe's inquired about Magee's absences and asked her to provide documentation orally when Wilson spoke with her in April or May 2017. Although Magee argues contends that Dr. Denker's May 22, 2017 note adequately described her need for medical leave and excused her earlier absences, Magee admitted in her deposition that she understood at the time that the note was insufficient to excuse her earlier absences and that she failed to obtain additional documentation from Dr. Denker. (Symes Deci. Ex. 3, Magee Dep. 104:4-11.) Contrary to Magee's current allegations, Trader Joe's informed Magee that her documentation was insufficient to excuse her ongoing attendance issues in the June 16, 2017 written warning, where again Wilson implored Magee to provide adequate documentation if her medical issues were causing attendance issues. And, further undisputed is that the only FMLA certification request Magee provided arrived on August 23, 2017, and failed to cover her prior absences and stated the need for intermittent leave as prospective only.
Thus, Magee has failed to create a triable issue of fact that she requested medically protected leave before it was needed, and or that she provided notice as soon as practicable after utilizing allegedly protected leave. Magee identifies no evidence showing that she provided Trader Joe's with documentation excusing her earlier attendance issues. Nothing in FMLA excuses Magee from following Trader Joe's normal attendance policies. More critically, Magee identifies no evidence that after providing the FMLA request to Trader Joe's later in August 2017, that she spoke with Wilson, Camiling, or anyone at Trader Joe's to retroactively adjust her absences in the first part of 2017 to reflect that they were leave-protected. Thus, Magee has not made a sufficient showing that she provided Trader Joe's with enough information to reasonably determine that FMLA applied to her earlier absences for attendance issues. Therefore, there is no genuine issue of material fact regarding whether Magee provided sufficient notice of her need for medically protected leave in the first half of 2017. Ellis, 2019 WL 1553676, at *13 (granting summary judgment to employer where employee presented no facts to show that she “requested leave in person, by phone, or through email” to alert employer that FMLA applied to her hospitalization); Rozairo, 2019 WL 3219328, at *6 (granting summary judgment to employer on FMLA claim were employee failed to create issue of fact that he provided employer with notice of intent to take leave as required by policy).
Magee also contends that Trader Joe's interfered with her FMLA rights by “waiting until December 2017 to code [her] involuntary absence as FMLA and OFLA-protected leave, which jeopardized [her] ability to have health care coverage during this period.” (Pl.'s Resp. at 35; Compl. ¶¶ 66, 67.) Magee appears to argue that Trader Joe's should have designated her unpaid leave in July and August 2017 as leave protected by FMLA, and that by belatedly doing so, Trader Joe's interfered with her FMLA rights.
Even if Magee is correct that Trader Joe's technically violated FMLA by not properly coding her unpaid leave from July and August until December 2017, Magee cannot demonstrate that Trader Joe's delay deprived of any FMLA benefits to which she was entitled. Ellis, 2019 WL 1553676, at *8 (“[E]ven if there is a technical violation under FMLA, an employee who does not suffer any harm and receives all leave requested is not entitled to relief.”) (quoting Crawford v. JP Morgan Chase NA, 983 F.Supp.2d 1264, 1271 (W.D. Wash. 2013)). Magee cites no case law to support her contention that the possibility of losing health insurance could establish an FMLA violation, and court declines to undertake such an inquiry, particularly because all evidence in the record contradicts Magee's theory. The evidence reveals that in November 2017 she sought to have her unpaid leave in July and August 2017 retroactively designated leave-protected in order to retain her health insurance. (Sykes Deci. Ex. 10 at 1.) The evidence further shows that when Magee highlighted the problem with Camiling, she promptly was credited with 160 hours of medical leave. (Id.) Magee presents no evidence that she actually lost health care coverage as a result of her absence, or from Trader Joe's alleged delay in designating the leave as protected. Additionally, Magee points to no requests for protected leave that were denied after she provided the FMLA paperwork from Dr. Denker. Magee admitted in her deposition that Trader Joe's granted all her requests for intermittent leave for her anxiety and depression. (Symes Deci. Ex. 3, Magee Dep. 140:2-8.) Thus, Magee has not created a genuine issue of material fact that she suffered any prejudice as a result of the alleged FMLA violation. Ellis, 2019 WL 1553676, at *8 (“FMLA, however, does not provide for a remedy unless the employee has been prejudiced by the violation.”) (quotation and citation omitted).
To the extent that Magee alleges that Trader Joe's retaliated against her for exercising her FMLA rights, the Ninth Circuit construes such claims as interference claims. See Ellis, 2019 WL 1553676, at *13 (finding employee could not establish that she was denied any FMLA benefits, granting summary judgment on FMLA interference claim); Schultz v. Wells Fargo Bank, Nat. Ass'n, 970 F.Supp.2d 1039, 1052 (D. Or. 2013) (citing Bachelder, 259 F.3d at 1124 (“By their plain meaning, the anti-retaliation or anti-discrimination provisions do not cover visiting negative consequences on an employee simply because he has used FMLA leave. Such action, is instead, covered under § 2615 (a)(1), the provisions governing “Interference with the Exercise of Rights.”)). To establish a claim under this theory, Magee needs to show that she took or requested protected leave, Trader Joe's subjected her to an adverse employment action, and that taking or requesting leave was a “negative factor” in the adverse employment decision. Bachelder, 259 F.3d at 1125; Ellis, 2019 WL 1443676, at *14 (citing 29 C.F.R. § 825.220(c)). No cause of action exists, however, if termination is the result of the employee's own performance problems. Liston Nevada ex rel. its Dep't of Bus. & Indus., 311 Fed.Appx. 1000, 1002 (9th Cir. 2009).
Magee argues that Trader Joe's retaliated against her for exercising her rights under FMLA/OFLA by changing her job duties after returning from leave, issuing negative performance evaluations in August 2017 and February 2018, and denying her a step increase in pay after utilizing FMLA leave. According to Magee, Trader Joe's considered her use of leave as a negative factor in making its adverse employment decisions. (Pl.'s Resp. at 36; Compl. ¶ 74.)
As discussed at length above, Magee has failed to demonstrate that she suffered any adverse employment action after submitting her request for intermittent leave for her mental health conditions on August 21, 2017: she was not constructively discharged; the change in job duties were not significant; and her February 2018 performance review was positive and she received a raise.
To the extent that Magee contends she received a negative performance evaluation and was denied a step increase were adverse employment actions, the court has determined this was not an adverse employment action. And, even if this could be so construed, Magee has failed to establish a genuine issue of fact that her FMLA leave request submitted to Trader Joe's on August 21, 2017, was a negative factor in that action. The August 2017 performance evaluation does not mention Magee's FMLA leave request, and there is no evidence that the evaluation was written after she requested intermittent FMLA leave. (See Sykes Deci. Ex. 3 at 18 (acknowledging receipt of Dr. Denker's FMLA paperwork and approving intermittent leave on August 23, 2017). Further, Magee's attempt to retroactively apply FMLA to her attendance issues is not supported by the evidence or the governing case law. Allred, 2018 WL 4040238, at *6-7 (granting summary judgment to employer on FMLA interference claim where employee terminated for repeated violations of call-in procedure and discussing other cases); Ellis, 2019 WL 1553676, at *15 (granting summary judgment to employer on FMLA interference request because employee could not establish that FMLA leave was request or that it played a significant factor in termination decision).
Because Magee has failed to identify any genuine issue of material fact that she suffered a materially adverse employment action after submitting her FMLA leave request, or that her request for intermittent FMLA leave was a significant factor in denying her a raise in August 2017, Trader Joe's is entitled to summary judgment on her FMLA retaliation claim.
In summary, there are no genuine issues of fact on Magee's fifth, sixth, and seventh claims for FMLA and OFLA claims of interference, Trader Joe's summary judgment motion on these claims should be granted.
2. FMLA/OFLA discrimination/retaliation - claim eight
Under § 2615(b) of FMLA, employers may not discharge or discriminate against any employee because the employee “has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this subchapter.” 29 U.S.C. § 2615(b)(1). To establish a claim under this section, Magee must show: (1) she participated in a FMLA proceeding; (2) she was subject to adverse employment action; and (3) this occurred “because” she engaged in the protected activity. Boronda v. Moye, Case No. 1:11-cv-3082-CL, 2013 WL 868300, at *5 (D. Or. Feb. 7, 2013), adopted 2013 WL 867852 (Mar. 7, 2013) (setting out elements of § 2615(b) retaliation claim); Jadwin v. Cty. of Kern, 610 F.Supp.2d 1129, 1170 (E.D. Cal. 2009). Courts in this district have applied the familiar McDonnell Douglas burden-shifting framework to FMLA retaliation claims under this section. Boronda, 2013 WL 868300, at *5; Washington v. Fort James Operating Co., 110 F.Supp.2d 1325, 1330 (D. Or. 2000); Bolek, 2016 WL 9455411, at *20; accord Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004) (applying McDonnell Douglas burden shifting to ADA claims for retaliation for engaging in protected activity).
In claim eight, Magee alleges that Trader Joe's discriminated and retaliated against her and constructively discharged her because she dually filed a charge of discrimination with BOLI and the EEOC, in which she alleged FMLA violations. (Compl. ¶ 89.) In her Complaint, Magee alleges that she filed a claim with BOLI/EEOC on November 3, 2017. (Compl. ¶ 57.) In her briefing, Magee appears to suggest that Trader Joe's corrected the mischaracterization of her unpaid leave as protected medical leave after she filed her BOLIZEEOC complaint, yet it failed to go back and retroactively designate her absences in early 2017, rescind the June 16, 2017 discipline, or rescind the August 2017 performance evaluation and provide her a pay increase. According to Magee, these actions combined with the change in job duties left her with no option but to quit.
Magee has not established a prima facie case o f FMLA retaliation. She has not identified an adverse employment action occurring after November 3, 2017, and she has not created a genuine issue of material fact that any of Trader Joe's actions, singly or collectively, were taken because she engaged in protected activity. Furthermore, even if Magee could establish a prima facie case of retaliation, she has not identified specific or substantial circumstantial evidence from which a reasonable jury could infer that Trader Joe's failure to retroactively designate her absences as leave-protected was “because of5 Magee's participation in FMLA proceedings. Magee's unsupported allegations fall far short of carrying her burden of creating a genuine issue of fact to avoid summary judgment. Accordingly, Trader Joe's summary judgment motion on Magee's Eighth claim for FMLA discrimination and retaliation should be granted.
For the same reasons, Trader Joe's is entitled to summary judgment on Magee's ADA retaliation claims premised on her protected activity of filing a complaint with BOLI and the EEOC.
V. Claim Nine - WhistleBlower Retaliation, O.R.S. § 659A.199
“Oregon law prohibits a private employer from retaliating against an employee who “‘has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule[, ] or regulation.'” Brunozzi v. Cable Commc'ns, 851 F.3d 990, 998 (9th Cir. 2017) (quoting OR. REV. STAT. § 659A.199(1)). The court applies the McDonnell Douglas burden-shifting framework to analyze retaliation claims under O.R.S. § 659A.199. Laramanger v. Kaiser Found. Health Plan of the Nw., 895 F.Supp.2d 1033, 1049 (D. Or. 2012); Lamb v. Ace Cash Express, Inc., Case No. 3: 12-cv-01160-PK, 2014 WL 3854138, at 3 (D. Or. Aug. 5, 2014).
Thus, Magee has the burden to establish a prima facie case of retaliation by showing that: (I) she was engaged in a protected activity; (2) she suffered an adverse employment decision; and (3) there was a causal link between the two. Brunozzi, 851 F.3d at 998. The “report” of information believed to be a violation may be to “either an external or internal authority.” Id. at 1000; Larmanger, 895 F.Supp.2d at 1049. To establish causation, Magee must show that her protected activity was a “substantial factor” in the motivation to take the adverse action. Wilkins, 2019 WL 3558172, at *17 (quoting Sandberg v. City of North Plains, 2012 WL 602434, at *7 (D. Or. Feb. 22, 2012)). To be a substantial factor, “the employer's wrongful purpose must have been a factor that made a difference in the discharge decision.” Estes v. Lewis and Clark College, 152 Or.App. 372, 381 (1988) (internal quotation and citation omitted).
If Magee makes a prima facie showing, the burden shifts to Trader Joe's to offer a legitimate, non-discriminatory reason for the adverse employment action. Neighorn v. Quest Health Care, 870 F.Supp.2d 1069, 1102 (D. Or. 2012) (applying McDonnell Douglas burdenshifting because it is a procedural device); Lamb, 2014 WL 3854138, at *3. If Trader Joe's successfully rebuts the inference of retaliation, the burden shifts back to Magee to produce some evidence that its “explanation is merely a pretext for impermissible retaliation.” Neighorn, 870 F.Supp.2d at 1102.
In her ninth claim, Magee contends that she was retaliated against because she reported information she believed were violations of state and federal laws. (Compl. ¶ 95.) In her briefing, Magee argues that she engaged in protected activity when her attorney sent letters on August 4, 2017 and August 28, 2017, demanding that Trader Joe's reinstate Magee to her position and that Magee's FMLA accommodations for her mental health were in addition to her ADA physical accommodations. Magee contends that the ongoing harassment by her managers, additional hours of Crew Member duties, and exclusion from staff meetings left her no choice but to resign. (Pl.'s Resp. at 38.)
As discussed above, Magee has failed to demonstrate that Trader Joe's actions amounted to a constructive discharge. Even presuming that Magee's reports to her attorney qualify as protected activity under the statute, Magee has failed to demonstrate any retaliatory or discriminatory actions taken by Wilson, Camiling, or anyone at Trader Joe's, or that such actions were because of having made such reports. Because Magee has failed to identify a triable issue of fact that she suffered a materially adverse employment action following her report to her attorney, she fails to establish a prima facie case under O.R.S. § 659A.199. Trader Joe's should be granted summary judgment on Magee's whistleblower retaliation claim.
Conclusion
Based on the foregoing, the court recommends that Trader Joe's Motion for Summary Judgment (ECF No. 29) should be DENIED IN PART and GRANTED IN PART.
Scheduling Order
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 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 Recommendations will go under advisement. See Cooper v. Dignity Health, 438 F.Supp.3d 1002, 1015 (D. Ariz. 2020) (granting summary judgment to employer on ADA retaliation claim where employee failed to show termination was because of EEOC filing).