Opinion
No. CV-00-1301-HU.
May 5, 2004
Paul S. Bovarnick, ROSE, SENDERS BOVARNICK, LLP, Portland, Oregon, Attorney for Plaintiff.
Emi Murphy Donis, BULLARD SMITH JERNSTEDT HARNISH, Portland, Oregon, Attorney for Defendant.
OPINION ORDER
Plaintiff Jeff Denny brings this employment discrimination action against his employer, Union Pacific Railroad. In an October 31, 2002 Findings Recommendation, adopted by Judge Jones on January 17, 2003, I granted plaintiff's motion for partial summary judgment on liability as to a claim for wrongful denial of leave under Oregon's Family Leave Act (OFLA). Following a trial on damages for that claim, I issued a Findings of Fact and Conclusions of Law awarding plaintiff no damages. As explained there, I concluded that the maximum damages plaintiff could obtain under the claim was for two days of backpay and that the backpay award he had already received following his reinstatement to his position in April/May 2000, provided more than that amount. Thus, he was entitled to no additional monies from defendant.
Plaintiff's remaining claim is one for injunctive relief related to the OFLA claim. He seeks an injunction that would prohibit defendant from denying him unanticipated OFLA leave in the future. The parties identified evidence already in the record related to that claim, and then presented further testimony regarding the proposed injunction at an additional hearing. For the reasons explained below, I deny plaintiff's request for injunctive relief.
DISCUSSION
As explained in the summary judgment Findings Recommendation, plaintiff's OFLA claim was one for denial of unanticipated leave. The facts adduced on the summary judgment record included that plaintiff had been approved for intermittent family leave in order to obtain chiropractic treatment for neck, shoulder, and/or back problems. On July 4, 1999, he unexpectedly experienced pain to such a degree that he could not work. He requested family leave and his supervisor denied his request.
As further explained in the summary judgment Findings Recommendation, OFLA allows an eligible employee to commence taking family leave without prior written notice to a covered employer because of an unexpected serious health condition of the employee. Or. Rev. Stat. §§ (O.R.S.) 659.480(2)(a)/O.R.S. 659A.165(2)(a). If an employee commences such unexpected leave, the employee must give oral notice to the employer within twenty-four hours of the commencement of the leave, and must provide the written notice required by subsection (1) within three days after the employee returns to work. O.R.S. 659.480(3)/O.R.S. 659A.165(3).
The 2001 Oregon Legislature renumbered all of Oregon's employment discrimination statutes. Because plaintiff's OFLA claim arose before the revisions took effect, the parties have continued to use the former numbers and as a result, so do I. I also refer to the new number following the former number. There have been no substantive changes to the law.
At summary judgment, defendant made several arguments in opposition to plaintiff's OFLA denial of leave claim. One of the arguments was that the intermittent leave that defendant had preapproved for plaintiff's chiropractor treatment was insufficient to support plaintiff's July 4, 1999 leave request. In response, plaintiff argued that defendant misapprehended the difference between plaintiff's approved intermittent leave and his request for leave on July 4, 1999, which he characterized as unforeseen leave. Plaintiff disavowed any reliance on the previously approved intermittent leave form and health care certificate signed by his chiropractor. Instead, he relied on O.R.S. 659.480(2)(a)/O.R.S. 659A.165(2)(a) and contended that his claim was one of denial of unexpected leave.
I concluded that because defendant did not dispute that plaintiff suffered from a serious health condition on July 4, 1999, and did not contest that plaintiff's need for leave on July 4, 1999 was unforeseeable, plaintiff was entitled to leave under O.R.S. 659.480(2)/O.R.S. 659A.165(2). I further concluded that plaintiff was excused from the post-leave oral and written notice requirements by virtue of his termination.
I recite this summary judgment history because it frames the narrowness of the claim for injunctive relief. Based on the claim on which plaintiff prevailed at summary judgment, the injunction must address only requests for unexpected family medical leave. It does not address other aspects of defendant's family medical leave program such as any restrictions it places on the use of intermittent leave.
At the injunction hearing, plaintiff expressed concern that defendant will deny his future requests for unanticipated leave because he was approved for leave before and was still denied unanticipated leave, and he believed other employees were subject to discipline when they had exceeded the number of days of preapproved intermittent leave. However, plaintiff testified that since his reinstatement in the spring of 2000, he has experienced no problems taking unanticipated family leave, even when it exceeded his expected frequency of pre-approved intermittent leave. Additionally, his testimony about leave denials before the July 4, 1999 denial of leave, was vague and equivocal. He said both that he had difficulty obtaining unanticipated family leave before July 4, 1999, and that for the most part, he got the leave he needed. Furthermore, he provided no details of the alleged leave denials.
Plaintiff further testified that following the December 2003 trial in this case, he received a letter from defendant indicating that it had overpaid his backpay award (referred to by the parties as the "TPA" award), for the July 4, 1999 to spring of 2000 termination period, by approximately $21,000. Accordingly, defendant informed plaintiff, it would deduct $250 per pay period from plaintiff's wages until it recouped the overpayment. Plaintiff stated that he had no personal knowledge of the extent to which defendant had audited other employees' TPA records, of any similar overpayments for any other employee, or of any attempts by defendant to recoup any overpayments.
Plaintiff's next witness, Barbara Ann McDonald, testified that defendant had never denied her unanticipated time off for a serious health condition of her own or of a family member. McDonald successfully applied for intermittent leave for her own serious health condition. As part of the approval of her intermittent leave request, defendant assigned an anticipated frequency of use based on a certification from McDonald's health care provider. When McDonald exceeded that frequency, defendant asked her for a new health care certification. Defendant did not discipline her or deny her leave. Later, after she failed to submit a recertification within the timeframe established by defendant, McDonald received a letter which threatened her with discipline under defendant's absenteeism policy.
McDonald's testimony is not relevant to the issue of injunctive relief presented here. First, pre-approved intermittent leave is not at issue in this case. Second, even when she exceeded the frequency of the use of her pre-approved intermittent leave, defendant issued no threats or discipline and did not deny her leave. It was only when she failed to timely re-certify her need for pre-approved intermittent leave that defendant notified her of the absenteeism policy and the consequences she faced under it.
Plaintiff's third witness, Arden Abel, stated that in May 2003, he was called at about 11:30 p.m. to report to work at 12:30 a.m. He initially answered the phone from his bed and agreed to work. After hanging up and trying to get out of bed, he realized that he could not work because his foot was swollen. He called dispatch to report his situation. Dispatch told him that while he did not have to report to work, he could not use family leave, but would instead be marked as "laid off working status" and charged with a rule violation for failing to report to work after accepting the call. He received a forty-four day suspension. Abel later appealed the discipline and learned via an April 2, 2004 letter sent to his union, that his appeal was successful and he would receive a backpay award. Other than this incident, Abel testified that he had experienced no problems in exceeding the frequency of his pre-approved intermittent leave or in taking unanticipated family leave.
Based on defendant's cumulative discipline policy, the level of discipline assessed for any particular infraction depends on the employee's discipline history.
Under OFLA, the denial of leave is an unlawful employment practice. O.R.S. 642.492/O.R.S. 659A.183. A person unlawfully denied OFLA leave
may file a civil action in circuit court. In any action under this subsection, the court may order injunctive relief and such other equitable relief as may be appropriate, including but not limited to reinstatement or the hiring of employees with or without back pay. . . .
O.R.S. 659.121/O.R.S. 659A.885(1). The parties have not cited, and I have not found, any Oregon case expressly discussing the standards for injunctive relief under this provision.
Generally, however, to be entitled to injunctive relief, there must be a reasonable showing of sufficient likelihood that plaintiff will be injured again. Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1275 (9th Cir. 1998); see also Boldt v. Boldt, 155 Or. App. 244, 247-48, 963 P.2d 719, 720-21 (1998) (no injunction should issue where plaintiff failed to show likelihood of repetition of abusive conduct). This is true in the employment discrimination context as well. E.g., Stevens v. Gravette Med. Ctr. Hosp., 998 F. Supp. 1011, 1016 (W.D. Ark. 1998) (no injunction when, inter alia, there was no discriminatory pattern or practice, there were no lingering effects of past discrimination, and there was no reasonable expectation that the discriminatory conduct would recur); Hayes v. Shalala, 933 F. Supp. 21, 27 (D.D.C. 1996) (denying injunction against future discrimination and retaliation where "plaintiff has not demonstrated that future violations are likely.").
Plaintiff cites a 1987 Ninth Circuit case for the proposition that an employment discrimination plaintiff is entitled to injunctive relief when he or she proves discrimination and the employer fails to prove that the violation is unlikely to recur.EEOC v. Goodyear Aerospace Crop., 813 F.2d 1539, 1544 (9th Cir. 1987). While the Ninth Circuit appears to place the evidentiary burden on defendant to show an absence of future likelihood of repeated discrimination, the evidentiary focus is the same as seen in other cases — whether defendant is likely to repeat its actions.
Given the lack of Oregon cases interpreting the particular injunctive relief provision at issue here, it is unclear whether the Oregon courts would place the burden on plaintiff or defendant. However, I conclude that whether I view the burden as plaintiff's to show a likelihood of repeated future conduct, or as defendant's to show the absence of such a likelihood, no injunction should issue on the record presented.
At best, there have been two instances of defendant denying unanticipated family medical leave in an almost four-year period from July 4, 1999 to May 2003, including the action directed at plaintiff. While defendant's employees seem dissatisfied with defendant's restrictions regarding the frequency of the use of preapproved intermittent leave, that is not an issue in this case. The issue is narrow and limited to the unexpected need for family medical leave.
The single instance in May 2003 of denying Abel's request, after he had accepted the call to work, is insufficient to show a likelihood of repetitive future acts by defendant. Rather, it shows the absence of future likelihood of repeated unlawful leave denials. It also bears mentioning that Abel's request came after he accepted a call to work and arguably caused defendant to examine the relationship of its on-call rules to its OFLA obligations.
Plaintiff offered no evidence of any other denials of unanticipated leave. The only other evidence plaintiff relied on was the audit of his previous backpay TPA award revealing an overpayment. Plaintiff suggests that the audit and the required reimbursement of the overpayment are evidence of retaliation directed toward him. However, as the testimony at the December 2003 trial in this case showed, the parties disputed the calculation of plaintiff's backpay award and defendant was prompted to reevaluate the amount paid. Plaintiff's lack of personal knowledge of other audits is not a basis for concluding that no other audits or overpayments have occurred or are planned. This evidence is insufficient to show a likelihood of defendant denying unanticipated leave to plaintiff in the future.
In sum, the record adduced at the injunction hearing established that defendant is unlikely to commit future OFLA violations of the narrow type at issue in this case. Accordingly, I decline to exercise my discretion in favor of entering an injunction.
CONCLUSION
Plaintiff's claim for injunctive relief is denied.
IT IS SO ORDERED.