Opinion
Case No. CV 09-241-HU.
March 2, 2010
Katelyn S. Oldham, Oldham Law Office, Portland, Oregon, Attorney for plaintiff.
Richard R. Meneghello, Laura P. Jordan, Fisher Phillips, Portland, Oregon, Attorneys for defendant.
OPINION AND ORDER
This is an action by Rhonda Arnoth against DHL Express U.S.A., Inc. (DHL), asserting claims for injured worker discrimination and failure to reinstate, in violation of Or. Rev. Stat. §§ 659A.040, 659A.043, and 659A.046; and for disparate treatment sex discrimination under Or. Rev. Stat. 659A.030 (a) and (b). She seeks damages for past and future lost wages and benefits; compensatory damages for emotional distress; and reinstatement to her former position or a comparable one.
Arnoth worked for DHL in the Portland station as a Field Service Supervisor, the only female in that position at the time of her termination. On December 20, 2007, Arnoth filed a worker's compensation claim, which DHL accepted on February 19, 2008. On February 14, 2008, she was released to return to modified work duty, but DHL terminated her on February 13, 2008, as part of a reduction in force (RIF). Arnoth alleges that she had more seniority than other Field Service Supervisors in Portland who were not laid off, and that none of the male Field Service Supervisors at the Portland station lost his job when she did.
DHL moves for summary judgment on all claims.
Factual Background
Arnoth was hired at the Portland station in May 2006. She was one of six Field Services Supervisors at the Portland station, the only female in that position. Two of the Field Services Supervisors were hired before Arnoth, and three were hired after she was. Declaration of Stephen Quimby ¶ 4; Declaration of Katelyn Oldham, ¶ 8, Exhibits 6 and 7. Arnoth reported to District Field Services Manager (DFSM) Ardeen Porter. Declaration of Laura Jordan Exhibit 1 (Pltf. dep.) 75:23-76:8. During Arnoth's employment, the Portland station operated Monday through Saturday. Quimby Declaration ¶ 5. There were three supervisor shifts on weekdays: an opening shift, a midday shift, and a closing shift. Id. During weekday shifts, each supervisor was responsible for supervising particular aspects of the operation, including the inbound and outbound sort, the ramp, the drivers, and the agents. Id. Supervisors were also expected to fill in as needed, depending on the needs of the station. Id.
The Saturday shift had only one shift with one supervisor, because fewer employees worked on Saturdays and fewer packages moved through the facility, compared to weekdays. Pltf. dep. 80:7-13; 81:2-4. The supervisor assigned to the Saturday shift worked Tuesday through Saturday, while the other supervisors worked Monday through Friday. Quimby Declaration ¶ 6. Supervisors' pay did not vary on the basis of their shifts, nor did assignment to the Saturday shift affect a supervisor's opportunities for advancement within the company. Quimby Declaration ¶ 6. However, Arnoth asserts that the Saturday supervisor job was less desirable because the Saturday supervisor operated alone, had no support, and did not interact with other supervisors or the DFSM. Quimby Declaration ¶ 6; Pltf. dep. 8:18-9:9; 160:12-14.
The duties of Field Services Supervisors changed depending on the needs of the station. At various times, Arnoth was in charge of inbound operations, outbound operations, check ride supervision, and supervision of the Saturday shift. Quimby Declaration ¶ 5; pltfs. dep. 70:10-17; 79:20-80:6.
In July 2007 Porter transferred to another station. Declaration of David Grudin ¶ 4. In late September or October 2007, Stephen Quimby became the new DFSM for the Portland station. Quimby Declaration ¶ 2; pltfs. dep. 77:25-78:3. During the interval between Porter's transfer and Quimby's arrival, station manager Chris Rooney supervised the Field Services Supervisors. Pltfs. dep. 77:25-78:3.
Rooney assigned Arnoth to the Saturday shift, telling her he needed someone with her experience for that shift. Pltfs. dep. 11:24-12:1; 12:14-19. Arnoth has testified that "past practice" dictated that the least senior supervisor assume Saturday shift duties. Id. at 13:22-14:3. During Arnoth's tenure at DHL, the Saturday shift position was occupied by Arnoth, two other women, and one man. Pltf. dep. 14:4-18:6.
Quimby supervised Arnoth for approximately three months, October, November, and December 2007 prior to her injury on December 20, 2007. When Quimby became DFSM, he did not change the schedules of the Field Services Supervisors. Quimby Declaration ¶ 7. Accordingly, Arnoth continued to work Tuesday through Saturday. Id.
Arnoth has testified that in October 2007, Quimby assigned her to dispatch duties, which "made for 12 hour days." Pltf. dep. 10:14-24. According to Arnoth, Quimby's stated reason for assigning her to dispatch was to cover for the regular dispatcher while she was out on maternity leave. Arnoth Declaration ¶ 4. Arnoth states that she believes other administrative staff could have performed these duties, and that by the time of her injury, December 20, 2007, and even by the time of her termination in February 2007, the regular dispatcher had still not gone on maternity leave. Id. Arnoth states that none of the male supervisors was assigned to dispatch. Id. Arnoth also states that to her knowledge, none of the male supervisors was required to dispatch on Monday, her day off. Id.
Arnoth has testified that in October 2007, Quimby yelled at her in front of staff, see Arnoth Declaration ¶ 7, and during supervisors' meetings, and that he began to exclude her from supervisors' meetings, the frequency of which declined from weekly to "maybe once a month." Id. 23:15-21; 26:1-8. However, Arnoth made no complaints to management about Quimby's treatment of her. Quimby Declaration ¶ 8; Grudin declaration ¶ 5.
Arnoth also states in her declaration that she saw Quimby yell at Porter during a meeting, and that drivers frequently complained to her about Quimby's "communication style." Id. at ¶ 7.
Arnoth has testified that meetings usually occurred once a week, but that they were held only about once a month during DHL's busy season, November and December. Pltf. dep. 26:4-8; 50:7-9.
Arnoth states in her declaration that when she was assigned dispatch duties, she told Quimby it would be difficult to reconcile dispatching with her other job duties requiring that she be in the field for periods of three to eight hours at a time. Arnoth Declaration ¶ 5. Arnoth states that other supervisors were not required to spend as much time in the field, and could more easily have handled dispatching. Id. Quimby refused her request to assign some of her duties to other supervisors. Id.
In November 2007, DHL announced elimination of its domestic express service and ground services, which were phased out in 2008 and discontinued entirely by January 2009. Declaration of Kelly Aguilar ¶¶ 3, 4.
On December 15, 2007, Arnoth was given an oral warning for failure to ensure delivery of Saturday Nordstrom shipments in October 2007 and December 2007. The warning was documented as a "Corrective Action." Quimby Declaration ¶ 10, Exhibit 3; Oldham Declaration, Exhibit 3. Arnoth has testified that Quimby did not discipline male supervisors who were responsible for failed Nordstrom deliveries. Pltf. dep. 24:22-25:25.
On December 20, 2007, Arnoth injured her hip and wrist when she tripped and fell over a box at work. Pltf. dep. 36:16-37:16; 38:2. She sought medical treatment the following day and was taken off work for right wrist strain and contusion of the right hip, see Mantilla Declaration, Exhibit 1, because Arnoth's commute was long enough to cause her leg to go numb. Pltf's dep. 39:3-6, 16-24; 43:7-13. Arnoth was off work on medical leave from December 21, 2007 to February 14, 2008. Declaration of Lucia Mantilla ¶ 4, Exhibit 2.
Mantilla states that based on her experience as a claims specialist, she thought Arnoth's claim involved a relatively light incident that should not have resulted in such an extended period of time off work. Id. She states further that orthopedic guidelines for treatment of injuries such as Arnoth's contemplate that the patient will be medically stationary within 30 days of the injury. Id. See also Exhibit 3, p. 7 (opinion of neurosurgeon Paul Williams that "[t]reatment or four weeks after the injury is appropriate, reasonable, and necessary for a right wrist strain and a contusion of the right hip and leg"). Mantilla investigated Arnoth's claim, including arranging for an independent medical examination (IME), a procedure Mantilla ordered in the majority of the claims she handled for DHL. Id.
The physician who performed the IME, Paul Williams, M.D., concluded that Arnoth was medically stationary and immediately capable of performing her job without restriction as of the date of her examination, January 29, 2008. Id. at ¶ 6. Mantilla states that she sent Dr. Williams's report to Arnoth's attending physician, who concurred with Dr. Williams, but did not send in the concurrence until March 7, 2008. Id. at Exhibit 3.
After receiving the attending physician's concurrence, Mantilla proceeded to close Arnoth's worker's compensation claim. Id. at ¶ 7. On March 11, 2008, Mantilla mailed Arnoth a notice of claim closure via certified mail, which confirmed that Arnoth was released to work with no restrictions. Id.; Exhibit 4.
Meanwhile, in January 2008, David Grudin in HR received word from the corporate office that DHL was beginning the process of making significant labor reductions, with the first round of layoffs to occur on February 12 and 13, 2008. Grudin Declaration ¶ 6. The decision about how many employees would be laid off from each station, and what type of employee, was made on a corporate level outside Portland, not at the station level. Id. The corporate directive required the Portland station to eliminate one Field Services Supervisor. Id. Grudin states that as part of the process, he was provided with characteristics to be assessed in determining which employees would be selected for the first round of layoffs. Id.
Grudin worked with regional managers and District Field Services managers, including Quimby from the Portland station, to obtain information about the employees, which included categories of past performance, current performance, critical skills, and competencies. Id. at ¶ 7. Critical skills that were assessed included an employee's leadership abilities, job knowledge, and ability to achieve service goals and maintain productivity standards. Id. Competencies that were assessed included, among other things, an employee's skills and abilities in the areas of communication, organization, and management. Id. Seniority was not a consideration. Id. The scoring criteria were primarily subjective, with employees being rated on a scale of zero to three. Oldham Declaration, Exhibit 9.
Quimby rated his subordinates and gave his ratings to Grudin. Quimby Declaration ¶ 12. Quimby gave Arnoth the lowest rating among the Field Services Supervisors. Id. Grudin entered data from Quimby onto a spreadsheet, which generated an overall rating for each employee. Grudin Declaration ¶ 8. Out of a possible 21 total points, Arnoth was given eight points. All of the male Field Services Supervisors were ranked higher, with four receiving 11 out of 21 points, and another receiving 13 points. Id.
Arnoth's 2006 Performance Evaluation, completed by Porter and signed by Arnoth in March 2007, gives her an overall performance rating of "fully meets," but with scores in some areas of "partially meets." Jordan Declaration, Exhibit 3, p. 2.
The first round of layoffs was February 12-13, 2008. According to Grudin's Declaration, during this first round, approximately 25 supervisors and managers in DHL's western area were laid off, including 19 male supervisors and managers, six of whom were male Field Services Supervisors. Id. at ¶ 10. On February, 13, 2008, Quimby and Grudin called Arnoth to inform her that her position was being eliminated. It is not disputed that Arnoth was the only Field Services Supervisor at the Portland station laid off in this round. Arnoth received three weeks of severance pay, based on her length of service (two years) with DHL. Id. According to Quimby, in subsequent rounds of layoffs, three more Field Services Supervisors lost their jobs at the Portland station: Ryan Cook, laid off in October 2008, Corey Hester, laid off in February 2009, and Trent Larsen, laid off in March 2009. Quimby states that when he left DHL in March 2009, only two Field Services Supervisors remained at the Portland station. Quimby Declaration ¶ 13. The number of employees at the Portland station eventually declined from 114 on January 1, 2006, to 33 as of November 2009. Aguilar Declaration ¶ 4.
Discussion
1. Sex discrimination disparate treatment claim
a. Prima facie case
A prima facie case of disparate treatment under Oregon's discrimination statutes is the same as that for Title VII.Henderson v. Jantzen, 79 Or. App. 654, 657 (1986). The prima facie elements of the disparate treatment case are, first, that plaintiff is a member of a protected class; second, that she was meeting the employer's legitimate expectations; third, that she experienced an adverse employment action; and fourth, that similarly situated individuals outside her protected class were treated more favorably, or other circumstances surrounding the adverse action give rise to an inference of discrimination.Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). DHL asserts that Arnoth has not shown that she experienced an adverse employment action or that similarly situated males were treated more favorably.
In the context of a discrimination claim, adverse employment action is construed more narrowly than in the context of a retaliation claim, and is limited to "actions that affect employment or alter the conditions of the workplace." Burlington N. Santa Fe Rwy. Co. v. White, 126 S.Ct. 2405, 2411 (2006);Kang v. U. Lim Am., Inc., 296 F.3d 810, 818-19 (9th Cir. 2002). DHL asserts that none of the circumstances complained of by Arnoth constituted an adverse employment action.
The areas in which Arnoth asserts she was treated differently from the male Field Services Supervisors are 1) exclusion from supervisory meetings; 2) assignment to dispatch duties; 3) being given no assistance with the safety manager aspects of her job; 4) continual assignment to the Saturday shift; 5) being disciplined for minor issues when other male supervisors were not disciplined for more serious issues; 6) receiving a lower rating than male comparators who were less experienced and or had more performance deficiencies; and 7) being selected for termination based on that lower rating.
Arnoth asserts that shortly after Quimby arrived, he began excluding her from supervisory meetings, on the ground that he wanted her to dispatch. Arnoth Declaration ¶ 3. Arnoth states that Quimby's exclusion of her from supervisory meetings was detrimental to her ability to perform her job because crucial information was exchanged, and the meetings provided an opportunity to speak with and listen to peers and upper level management. Arnoth Declaration ¶¶ 2-3. DHL challenges this testimony, pointing out that Arnoth acknowledges supervisors' meetings were held only about once a month during the busy season, between November and January. Arnoth Declaration ¶ 2. Thus, for two of the three months Quimby supervised Arnoth (November and December), meetings occurred only once a month. DHL also points to the absence of evidence that Arnoth's absence from the meetings had any effect on her pay, benefits, or opportunities for advancement. Quimby Declaration ¶ 6.
With respect to the assignment of dispatch duties, Arnoth contends that dispatch could have been performed by another nonsupervisory employee. Quimby's stated reason for assigning dispatch to Arnoth was that the regular dispatcher was expected to be out on scheduled maternity leave, but Arnoth states that the dispatcher had still not taken her leave when Arnoth was injured in December 2007. Arnoth also asserts that on Mondays, her day off, Quimby did not assign any of the male supervisors to dispatch. Arnoth has stated that dispatch was a hardship for her, because it conflicted with other job duties requiring her to be out in the field, and "made for 12 hour days."
DHL counters that Arnoth has produced no evidence that the dispatch assignment affected the terms and conditions of her employment including pay, benefits, or opportunities for advancement, nor any evidence that Arnoth's pay was docked or that she was disciplined for not being in the field. DHL also points to evidence from Quimby that Field Services Supervisors typically worked 12 hour days, so Arnoth's statement that dispatch duties "made for 12 hour days" does not distinguish her from her male comparators. Quimby Declaration ¶ 6. Arnoth herself testified that other supervisors worked similarly long days (11 hours). Pltf. dep. 9:8-24. I find no evidence in the record that Arnoth worked more hours than any male Field Services Supervisor.
Arnoth asserts that Quimby denied her request for assistance with the safety manager aspects of her job. Arnoth Declaration ¶ 5. Arnoth does not specify what her specific request was. DHL points to evidence that supervisors often asked for assistance with one aspect or another of their jobs. Jordan Reply Declaration Exhibit 2 (Quimby dep.) 73:10-13. Quimby also testified that he supplied Arnoth with contact information for experts within DHL who could assist her, Quimby dep. 72:19-73:3, and that Arnoth participated in a weekly 90-minute conference call facilitated by regional safety manager Kelly Tatum, in which safety supervisors from each station in Ms. Tatum's region would call in to discuss pending worker's compensation claims. Jordan Reply Declaration, Exhibit 3 (Tatum dep.) 41:1-17; 42:6-19. DHL points to the absence of any evidence that a failure to provide Arnoth assistance with her safety duties adversely affected Arnoth's pay, benefits or opportunities for advancement.
Arnoth contends that she was treated unfairly when she requested relief from the Saturday shift. Arnoth states in her declaration that when Porter had been DFSM, she had rotated this shift. Arnoth Declaration ¶ 6. Arnoth states that she told Rooney she would rather not work the Saturday shift so that she could attend her son's sporting events, which typically occurred on Saturdays. Id. In support of her assertion that Saturday shifts constituted treatment unfair to her, she points to evidence that after her termination, the Saturday shift was not reassigned to one of the five remaining male supervisors, but became rotational. Oldham Declaration, Exhibits 23 and 24.
DHL challenges Arnoth's assertion that working the Saturday shift was an adverse employment action that required Arnoth to assume additional responsibilities not borne by the other supervisors and affected her opportunity for promotion because her manager was not at work on Saturdays. DHL asserts that it necessarily follows from Arnoth's assertions that assigning anyone to the Saturday shift would constitute an adverse employment action. DHL also argues that Arnoth has overlooked her other four workdays, which were weekdays, a difference of only one day in comparison to her male comparators. But DHL's arguments fail to address Arnoth's assertion that the Saturday supervisor shift was not rotated among the other supervisors when she had it.
Arnoth asserts that during her employment she was subjected to yelling and profane language from Quimby, and states that while she does not assert a claim of hostile work environment, Quimby yelled at Arnoth and other women, including Porter, but did not treat male employees the same way. Pltf. dep. 23:15-24:25. DHL does not dispute this assertion, but counters that yelling does not rise to the level of an adverse employment action. Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir. 1998) (threats and harsh words insufficient to constitute adverse employment action).
Arnoth asserts that she was disciplined by Quimby for conduct that would not have been disciplined when engaged in by male employees. Arnoth refers to the oral warning she was given about the Nordstrom packages in October and December 2007, and asserts that the first of these errors was caused by a driver's error. Quimby Declaration, Exhibit 1. Arnoth acknowledges that the missed Nordstrom shipment in December was her responsibility, but has testified that there were "issues" with Nordstrom shipments that the Portland station was "working on," and that e-mails from executives throughout the company indicated that DHL and Nordstrom were working together on these "issues." Pltf. dep. 92:12-93:2; 158:3-18. DHL asserts that the oral warning is the lowest level of corrective action, see Quimby dep. 71:2-10, and did not constitute an adverse employment action.
When the evidence pertaining to Arnoth's assignment to dispatch duties and the Saturday shift on a non-rotational basis, Quimby's yelling at her, her exclusion from meetings apparently in part because of being required to do dispatch, and receiving the lowest rating on the RIF matrix, is considered along with the fact that the Field Services Supervisor selected for layoff at the Portland station was its only female Field Services Supervisor, while three males with less experience remained, it is sufficient to satisfy Arnoth's burden of showing that she was treated differently from similarly situated male Field Services Supervisors. Her termination was unquestionably an adverse employment action. I conclude that Arnoth has made out a prima facie case of sex discrimination.
b. Nondiscriminatory explanation
DHL can rebut Arnoth's prima facie case by producing a legitimate, nondiscriminatory explanation for Arnoth's termination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993). DHL must produce evidence, not merely express an argument. Rodriguez v. GMC, 904 F.2d 531, 533 (9th Cir. 1990). DHL contends that Arnoth was terminated for a non-discriminatory reason, i.e., the company-wide RIF of which Arnoth was a part. It has produced evidence of the RIF.
c. Pretext
DHL has produced a legitimate, nondiscriminatory explanation for Arnoth's termination; the burden shifts back to her to produce evidence that the DHL's proffered nondiscriminatory reason is pretextual. On summary judgment, Arnoth's burden is only to produce enough evidence to allow a reasonable factfinder to conclude that her termination was motivated by discrimination.Peterson v. Hewlett Packard Co., 358 F.3d 599, 603 (9th Cir. 2004); Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995). This may be accomplished "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." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
The mere fact that she was terminated as part of a RIF does not foreclose Arnoth's claims. Circumstantial evidence can show that a supervisor's RIF scores were pretextual, particularly for evaluations in "soft-skill" categories such as "communication/leadership." EEOC v. Boeing Company, 577 F.3d 1044, 1052 (9th Cir. 2009). Arnoth's own testimony about why her low scores were wrong, mistaken, or unworthy of credence is also evidence. Id.
As discussed, Arnoth has produced evidence that she was treated differently from the male supervisors in several respects, particularly by Quimby. Quimby's ratings of Arnoth, assessed after less than three months as her superior, were almost entirely based on "soft-skill" categories, including the possession of unspecified "unique skills;" "leadership," including "[m]aintain[ing] the "self-confidence and self-esteem of others;" "customer service orientation;" "teamwork and collaboration;" "initiative and adaptability;" and "communication," including "nonverbal communication." These qualities were rated on a scale defined by other soft criteria, such as "less than fully competent in some or most skills and abilities," (zero) and "currently less than fully competent in some skills and abilities [but] . . . is able to meet most aspects of the job requirements and with additional training and/or experience can meet the expectations of the job" (one). See Oldham Declaration Exhibit 9.
Arnoth has produced sufficient evidence to allow a reasonable factfinder to conclude that her termination was motivated by sex discrimination. DHL's motion for summary judgment on this claim is denied.
2. Injured worker discrimination claim
A prima facie case of unlawful termination based on injured or status requires the following: 1) that plaintiff invoked the workers compensation system; 2) that she experienced an adverse employment action; and 3) a causal link exists between the two. See Williams v. Freightliner, LLC, 196 Or. App 83, 90 (2004). TheMcDonnell Douglas framework applies to such claims. Scott v. Sears, Roebuck Co., 395 F.Supp.2d 961, 981 (D. Or. 2005).
To satisfy the causal element, Arnoth must show that invocation of the workers compensation system was a "factor that made a difference" in DHL's decision to terminate her employment.Dickison v. Wal-Mart Stores, Inc., 2007 WL 1959287 *3 (D. Or. July 2, 2007). Temporal proximity between the filing of a worker's compensation claim and a subsequent adverse employment action, without more, does not establish the required causal connection between the two events. Hardie v. Legacy Health System, 167 Or. App. 425, 433 (2000); Kotelnikov v. Portland Habilitation Center, 545 F. Supp. 2d 1137 (D. Or. 2008).
Arnoth asserts that Mantilla's investigation into her worker's compensation claim is sufficient to demonstrate discriminatory animus. DHL counters with Mantilla's testimony that she investigated numerous claims in the same manner as Arnoth's, ordering an IME in 90% of the claims she handled for DHL. Jordan Reply Declaration, exhibit 4 (Mantilla dep.) 132: 23-25; 133:7-9, 13-15. DHL also points out that Arnoth's worker's compensation claim was accepted, and closed only after Arnoth's physician concurred in the opinion of the IME doctor.
Arnoth also relies on the timing between her injury and her termination date to create an inference of discrimination. SeeCoszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir. 2003) (timing alone does not support inference of discrimination; additional evidence of surrounding circumstances must support such an inference). DHL argues that Arnoth has not produced additional evidence of supporting circumstances that support an inference of discrimination, and that it has produced evidence that neither Quimby, nor Grudin chose the layoff date, and that many DHL employees, including males, were laid off the same day as Arnoth. I conclude that Arnoth has no evidence to support worker's compensation discrimination except for timing, which is insufficient. DHL is entitled to summary judgment on this claim.
3. Failure to Reinstate or Reemploy
Under Oregon law, reinstatement rights do not arise if the employer establishes that the worker was discharged from her pre-injury position for reasons unrelated to the injury or her worker's compensation claim. Lane County v. State, 104 Or. App. 372, 377 (1990); see also OAR 839-006-0131(1)(g), OAR 839-006-0136(7).
DHL argues that Arnoth's status as an injured worker did not preclude DHL from considering her for the 2008 layoffs. The regulations implementing Or. Rev. Stat. § 659A.043 state that an injured worker has "has no greater right to a position or other employment benefit than if the worker had not been injured." OAR 839-006-0130(10); 839-006-0135(12). Arnoth has not responded to this argument in her papers.
Additionally, DHL argues that Arnoth failed to preserve her right to reinstatement by making a timely demand on the employer, as required under OAR 839-006-0130(d) and 839-006-0135(b). Arnoth counters that any such demand would have been futile under OAR 839-006-0130(7) and OAR 839-006-0135(10), which exempt a timely demand if "the employer has made it known" that reinstatement or re-employment will not be considered. However, DHL points to testimony from Arnoth that during her conversation with Quimby and Grudin on February 13, 2008, she was told she was "more than rehirable." Pltf. dep. 66:9-16. In addition, DHL points out, the written severance package Arnoth received clearly stated that she was eligible for rehire. Grudin Declaration, Exhibit 2. I find it unnecessary to reach this argument because I conclude that DHL has met its burden of showing that Arnoth was terminated for reasons unrelated to her injury or her worker's compensation claim. The survival of Arnoth's sex discrimination claim cannot save the worker's compensation discrimination and failure to reinstate claims. DHL's motion for summary judgment on this claim is granted.
Conclusion
DHL's motion for summary judgment (doc. # 36) is GRANTED with respect to Arnoth's claims for injured worker discrimination and failure to reinstate, in violation of Or. Rev. Stat. §§ 659A.040, 659A.043, and 659A.046; DHL's motion for summary judgment is DENIED with respect to Arnoth's claim for disparate treatment sex discrimination under Or. Rev. Stat. 659A.030 (a) and (b).
IT IS SO ORDERED.