Opinion
Civil No. 99-1637-AS
July 17, 2001
Shay S. Scott, Haglund, Kirtley, Kelley Horngren, Portland, OR, Attorney for plaintiff.
John Michael Unfred, Salem, OR, Attorney for defendant.
OPINION AND ORDER
On May 15, 2001, Magistrate Judge Ashmanskas filed Findings and Recommendations that defendant's motion for summary judgment be granted with regard to the first, second, fifth and tenth claims for relief, and denied with regard to the third, fourth, sixth, seventh, eighth and ninth claims. Judge Ashmanskas also recommended that plaintiff's motion to amend be granted and plaintiff's motion to strike the affidavit of Patience Vidal-Mills be denied.
The matter is now before me pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. Section (b)(1)(A) authorizes a magistrate to hear and determine any pretrial matter pending before the court except certain specified "dispositive" motions. United States v. Raddatz, 447 U.S. 667, 673 (1980). Review by the district court of the magistrate's determination of dispositive motions excepted under § 636(b)(1)(A) is de novo. Fed.R.Civ.P. 72(b); Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1414 (9th Cir. 1991). Plaintiff has filed timely objections to Magistrate Judge Ashmanskas's recommendation that his first and second claims be dismissed because he failed to present substantial evidence of pretext. I have given Magistrate Judge Ashmanskas's Findings and Recommendation de novo review.
Although plaintiff argues that he has presented evidence "that defendant's entire motive for firing him related to defendant's discriminatory intent," Plaintiff's Objections, p. 1, the evidence plaintiff cites to support this argument concerns Ditchen's reneging on the compensation agreement and plaintiff's refusal to sign the release because he was unwilling to waive bonuses and profit sharing that he believed defendant owed him. Plaintiff argues that "defendant improperly used plaintiff's disability ostensibly in an effort to exact hundreds of thousands of dollars from him, which clearly violates the Federal and Oregon ADA," and that these events "underscore defendant's improper use of plaintiff's disability in order to convert money from him." Id. at 2.
Plaintiff's argument here is based, not on disability discrimination, but on the contention that defendant terminated him to avoid paying bonuses and profit-sharing to which plaintiff believed himself entitled. I agree with Magistrate Judge Ashmanskas that plaintiff has not carried his burden of proffering specific, substantial evidence that the reasons asserted by defendant for plaintiff's termination are a pretext for disability discrimination. Consequently, plaintiff has not made out a case of discrimination based on disability, and these claims should be dismissed.
Accordingly, I ADOPT Magistrate Judge Ashmanskas's Findings and Recommendation filed May 15, 2001 (doc. #64)). The defendant's motion for summary judgment (doc. #18) is granted with respect to plaintiff's first, second, fifth and tenth claims for relief and denied with respect to the third, fourth, sixth, seventh, eighth and ninth claims for relief. Plaintiff's motion to amend (doc. #44) is granted. Plaintiff's motion to strike (doc. #45) is denied.
IT IS SO ORDERED.