Opinion
Civil No. 03-3051-CO.
November 4, 2004
ORDER
Plaintiff brought this action in state court for wrongful discharge, breach of contract in state court, and violation of the state and federal Family Medical Leave Act. Defendant removed this action based on original jurisdiction; plaintiff's original complaint contained a claim under the Federal Family Medical Leave Act.
This case was removed on June 10, 2003. The first amended complaint was filed on April 15, 2004. The parties have engaged in discovery during the pendency of this action. The court finds that it is in the interest of judicial economy and fairness to retain jurisdiction over the state law claims. Acri v. Varian Assoc., Inc., 114 F.3d 999 (9th Cir. 1997); See Albingia Versicherungs A.G v. Schenker Int'l Inc., 344 F.3d 931,amended, 350 F.3d 916 (9th Cir. 2003).
The parties executed written consents for entry of final judgment by a Magistrate Judge. 28 U.S.C. § 636©). Before the court is defendant's motion for summary judgment (#23).
In responding to a party's concise statement of material facts, Local Rule 56.1(c)(1) requires the responding party to cite to a particular affidavit, deposition, or other document supporting the denial of a material fact. The statement "Denies" without citation to evidence does not satisfy this requirement. Under Local Rule 56.1(f) material facts which are not denied or otherwise controverted are deemed admitted. Plaintiff's responses to defendant's paragraphs 2,3,4,10,11, 16,17,19,20,21,22, and 24-28 do not satisfy the requirements of LR 56.1(c)(1) and these facts are deemed admitted.
I. FACTS
Defendant presents the following facts in support of its motion for summary judgment:1. [Defendant's employee handbook disclaimer provides in part that:
Disclaimer
This handbook does not constitute a contract for employment for any period of time, but merely sets forth Merle West Medical Center's expectations for behavior within the organization effective on the date it was issued. . . .
Defendant's personnel policy and procedures manual contains the following language:
The contents of this manual is not a contract of employment with any employee, and is intended for employees not covered under a collective bargaining agreement.
Limb Aff. ¶ 4; Exs. A B, attached to Limb Aff.]
Plaintiff denies this fact citing to her affidavit paragraph 10 in which she states she did not know she was an at-will employee and was never told she was an at-will employee. Plaintiff also cites Exhibit 3 of Laura Limb. Plaintiff's facts do not refute that plaintiff was an at-will employee as set forth in Limb Affidavit Exhibit A page 2.
2. Merle West has in place a well-articulated attendance and reporting policy that includes, among other things, the requirement that an absent employee notify the Hospital on a daily basis if he or she will not be able to report for a scheduled shift. If an employee does not call in or report for work for three successive scheduled days, that employee is deemed to have abandoned his or her employment voluntarily. Limb Aff. ¶ 7; Ex. C, attached to Limb Aff. This policy applies to all employee leaves, including Workers' Compensation leave. Limb Aff. ¶ 7.
3. With regard to absences due to an on-the-job injury, Merle West's policies further provide that "The employee shall: . . . Call the department manager/supervisor daily when the employee is absent for an extended period of time without medical authorization." Limb Aff. ¶ 8; Ex. D, subsection O, attached to Limb Aff.
4. Plaintiff admits that she was aware of the call-in and reporting policies and that they applied to her. Pl. Depo. 248:11-249:12, 249:18-250:17.
5. Plaintiff's supervisor, Laura Limb, advised plaintiff during her performance review on May 8, 2002 (prior to plaintiff's injury), that she was expected to adhere to and comply with the call-in policies and their requirements. Limb Aff. ¶ 9.
6. On May 8, 2002, plaintiff sustained an on-the-job injury when she fell while attempting to prevent a patient from falling. Pl.'s Amd. Cmplt. ¶ 2; PI. Depo. 108:21-109:7. Plaintiff injured her right knee and ankle. Pl. Depo. 116:16-17. Plaintiff was seen in the Hospital's Urgent Care facility by Nurse Practitioner Andy Hughes. Pl. Depo. 110:15-111:6, 115:5-116:11; Limb Depo. 50:23-51:1, 52:10-23.
7. Mr. Hughes provided plaintiff with a note excusing her from work through and including May 13, 2002. Pl. Depo. 116:24-117:3; Ex. F, attached to Limb Aff.
8. Mr. Hughes advised plaintiff that he was able to do no more for her and that if she needed additional time off [and she didn't feel better in a week], she would have to follow up with her own physician. Pl. Depo. 117:6-15. Plaintiff made an appointment with a licensed orthopedic physician, Dr. Casey. Pl. Depo. 122:2-4.
9. Plaintiff was not scheduled to work again until May 14, 2002. Limb Aff. ¶ 10. Plaintiff was aware that she was scheduled to work on May 14. Pl. Depo. 120:19-23.
10. Plaintiff was also placed on the schedule to work May 15, 16, 21 and 22. Limb Aff. ¶ 10.
11. On May 13, 2002, plaintiff contacted the staffing office to let the Hospital know that she would not be able to return to work and would "keep them posted" as to when she was scheduled to visit with her physician. Pl. Depo. 120:22-121:6. Plaintiff did not contact her department manager or supervisor, as required by Hospital policy. Limb Aff. ¶ 12; Pl. Depo. 121:12-13. Plaintiff did not give the staffing office any indication how long she would be out or which currently scheduled shifts she would miss. Pl. Depo. 120:24-121:4.
12. Plaintiff did not report for work on May 14, 15, or 16. Limb Aff. ¶ 12.
13. On May 20, Ms. Limb called and spoke with plaintiff. Ms. Limb instructed her that she would need to present a return to work release from a doctor before she reported for her next scheduled shift on May 21, 2002. Pl. Depo. 121:12-24; Limb Aff. ¶ 13.
14. Plaintiff contacted Mr. Hughes on May 20 and asked for another note excusing her absences. Pl. Depo. 122:7-22. Mr. Hughes' second note excused plaintiff for the day of May 16 only. Pl. Depo. 123:2-13; Ex. G, attached to Limb Aff. Mr. Hughes' second note did not excuse plaintiff for her absences on May 14 or 15, and it did not release plaintiff to return to work as scheduled on May 21 or excuse her subsequent absence on May 22. Id. at Ex. G; Limb Aff. ¶ 14.
Plaintiff denies these facts citing the same evidence. Defendant's evidence supports these facts.
15. [Ms. Limb told plaintiff that she was taken off the schedule to work until she could provide a note from the doctor. Limb Depo. 78; 1-8] Plaintiff did not call in to report she would not be at work on May 21 or 22. Limb Aff. ¶ 15. As of May 22, 2002, plaintiff had missed five consecutive shifts without notifying the Hospital that she was not able to attend work. Id.
In response to this fact plaintiff states that: Plaintiff reported on May 20 that she would not be at work until after her appointment with Dr. Casey. . . . These facts are not supported by the citation to the evidence.
16. Because plaintiff failed to call in as required by Hospital policy for more than three consecutive shifts, the Hospital considered her to have abandoned her job voluntarily and discharged her in accordance with the applicable policies. Limb Aff. ¶ 16; Exs. C, D, H, attached to Limb Aff.
17. Plaintiff's termination was not tied in any way to plaintiff's invocation of the workers' compensation system. Limb Aff. ¶ 18.
18. Plaintiff has not claimed that her injury physically prevented her from calling in as required, or that she was otherwise unable to call in.
19. The fact that plaintiff was absent due to an on-the-job injury did not relieve her of her obligation to comply with the reporting requirements. Limb Aff. ¶ 17.
20. Merle West has never terminated any employee because that employee incurred a workers' compensation injury or because that employee invoked the workers' compensation system. Madison Aff. ¶ 4.
21. Merle West consistently enforces its call-in and reporting policies and has terminated other employees who have not invoked the workers' compensation system, but who failed to call in or report for scheduled shifts. Madison Aff. ¶¶ 6 7.
22. Other employees at Merle West who have invoked the workers' compensation system have not been terminated. Madison Aff. ¶¶ 3 5.
23. Plaintiff admits that she is unaware of any person who has failed to call in more than three consecutive days and was not terminated. Pl. Depo. 249:2-250:20.
24. The employment agreement to which plaintiff refers in the Amended Complaint is an acknowledgment form she signed promising to abide by the Hospital's policies and confirming that she would be treated equally as an employee. Pl. Depo. 167:21-168:25.
25. Merle West's Employee Excellence Handbook both presumes atwill status and includes a prominent disclaimer on the very first page underneath the Mission Statement. Ex. A, attached to Limb Aff.; Limb Aff. ¶ 5.
26. Merle West's Personnel Policies and Procedures Manual includes a similar statement disclaiming the existence of any contract. Ex. B, attached to Limb Aff.; Limb Aff. ¶ 6.
27. An emergency room physician or urgent care nurse practitioner will not be the patient's treating physician for purposes of subsequent visits or continuing care and is not in a position to assess either (1) whether the patient will require additional care in the future or how much, or (2) when and even if the patient will be able to return to work following subsequent treatment and under what restrictions. Limb Aff. ¶ 19.
28. Because the nature of emergency care is to provide a onetime assessment of the patient's injury, the Hospital requires medical authorizations excusing subsequent absences and providing certification of an ability to return to work in the future from someone who is in a position to provide that type of continuing treatment assessment, e.g., a treating physician. Limb Aff. ¶ 20.
29. Merle West had accepted Mr. Hughes' original excuse for plaintiff and the one he faxed in on May 20 for May 16. Limb Aff. ¶ 22; Exs. F G, attached to Limb Aff.
Plaintiff submits the following additional facts:
The court added the defendant's additional facts or the court's modification of the facts to reflect the evidence in brackets .
30. No policy of defendant requires that an employee provide defendant with a note for each day of absence. Crane Aff. ¶ 7. [Defendant's policies require an employee to call in if she will be absent and to call daily when absent for an extended period of time without medical authorization. Limb Aff. Exhibits C at 1 and D at 2]
31. [Merle West has in place policies and reporting requirements that relate specifically to absences due to occupational injuries. Limb Aff. ¶ 8] [The policies require the injured worker to contact the Workers' Compensation Coordinator as soon as possible to schedule an appointment to review and sign the Occupational Injury Policy and Procedure. It also requires the Workers' Compensation Coordinator to review the Occupational Injury Policy and Procedures with the employee, and obtain a signed statement of the review. The policies require that employee to contact the department manger/supervisor and Workers' Compensation Coordinator at least once a week to keep information current and at other times for specific reasons. The policies puts various obligations on the employee with regard to physician appointments, physician authorizations, physician instructions, contacting the appropriate management personnel, and submitting appropriate documentation. The Medical Center is responsible for: creating a light duty job description if the employee cannot return to the employee's regular job and communicating regularly with all injured employees, physicians, and department managers/supervisors. Department managers and supervisors are to accommodate, as allowable, the need for occasional interruption of schedule when necessary and when notified ahead of time for employee's injury related appointments. Limb Aff. Ex. D]
32. The Workers' Compensation Coordinator never reviewed the Occupational Injury Policy and Procedures with plaintiff following her injury and plaintiff did not sign a statement of review of the policies. The Workers' Compensation Coordinator did not maintain contact with plaintiff. (Plaintiff's Aff. ¶ 5)
33. On May 13, 2002, plaintiff called the staffing office and advised then that she was unable to walk, she could not work, that she was following up with Dr. Casey, and she would keep them informed as soon as she knew what was going to happen. (Plaintiff's Depo. 120-121.
34. On May 20, Laura Limb told plaintiff that plaintiff was going to be issued a no call, no show for the previous week unless plaintiff produced a physician's note that she was going to need time off and that she would have to bring a note and report to work the next night, May 21. Plaintiff responded that she could not return and would bring a physician's note when she obtained one. Plaintiff told Laura Limb she could not get an appointment with Dr. Casey until June 4. Plaintiff's Depo. at 121-122
35. [Ms. Limb had Hilda take plaintiff off the schedule until "we got a note". Limb Depo. at 78, 80] Ms. Limb told plaintiff that she had to bring a note in by her next scheduled work day which was May 21st. Limb Depo. at 68.
36. As of May 20, defendant considered plaintiff to have been absent on May 14, 15, and 16, which were the dates used as the basis for termination. Limb Depo. at 74 [These were not the only dates used as the basis for termination. Suppl. Gordon Aff. Ex. 2 — Limb Depo. at 73 — Limb Aff. Ex. H]
37. In an attempt to comply with Ms. Limb's threats of a no call, no show, plaintiff contacted Andy Hughes who told her he would write a note that she was off and to follow up with Dr. Casey. Mr. Hughes said he would take the note to staffing, which plaintiff thought would comply with Ms. Limb's requirements. Staffing received the note. Mr. Hughes's note excused plaintiff for May 16. Plaintiff's Depo. 122-123 — Limb Aff. Ex. G
38. Ms. Limb did not tell plaintiff that a note signed by Andy Hughes did not qualify as a physician's note and plaintiff assumed it did, because defendant accepted the first note. Limb Depo. at 68 — plaintiff Depo. at 127-128.
39. On May 23, 2002, Ms. Limb wrote to plaintiff: "As per our phone conversation on May 20, 2002, I instructed you to bring a note from your physician to allow you to work your next shift on May 21, 2002 . . . Your failure to bring a physician note, as instructed by me will be interpreted as your voluntary resignation." By May 23, Ms. Limb considered plaintiff to have been fired, because she had not brought a note on May 21. Limb Depo. at 67-68 — Limb Depo. Ex. 3
40. Defendant's policy requires an employee to obtain written authorization after every physician appointment reporting on the employee's ability to work. Limb Aff. Ex. D
41. When plaintiff saw Dr. Casey, he wrote her a note covering her back to the date of the injury and backdated the note. Plaintiff's Depo. at 126
42. [On September 4, 2003], plaintiff's workers' compensation claim was closed. [Plaintiff was awarded temporary partial disability for the period of 5-8-02 through 5-15-02, temporary total disability for the period 5-16-02 through 7-5-02, temporary partial disability for the period of 7-6-02 through 10-9-02, temporary total disability for the period 10-10-02 through 2-21-03, and temporary partial disability for the period 2-22-03 through 7-7-03. She was found to have "scheduled permanent partial disability . . . 5 percent loss for 7.5 degrees of your right knee . . . The dollar value of this disability is $4,192.50."]
43. Defendant's policy #402:3 provides: XIII. If an illness or disability extends beyond 3 days, the employee must follow the Leave of Absence policy. Crane Aff. Ex. E
44. Defendant's Leave of Absence policy requires that the supervisor review the leave of absence policy with the employee. Crane Aff. Exs. F and I
45. Defendant's Family Medical Leave policy [provides in part that, in the case of extenuating circumstances whereby the employee is unable to apply for a leave of absence (e.g., when in a hospital out of town) it will be the employee's supervisor's responsibility to assess and validate the extenuating circumstances and initiate and submit the request for leave to the Personnel Department.] Crane Aff. Ex. I
46. [On May 23, 2002, plaintiff received a memorandum stating that effective May 9, 2002, her leave granted under workers' compensation laws would run concurrently with her family medical leave.] Crane Aff. Ex. M.
II. LEGAL STANDARDS
Pursuant to Rule 56©) of the Federal Rules of Civil Procedure, a moving party is entitled to summary judgment as a matter of law "if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56©); Bahn v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.), cert. denied, 502 U.S. 994 (1991). The moving party bears the initial burden of proof. See Rebel Oil Co. v. Atlantic Richfield Oil Co., 51 F.3d 1421, 1435 (9th Cir.) cert. denied, 516 U.S. 987 (1995). The moving party meets this burden by identifying portions of the record on file which demonstrates the absence of any genuine issue of material fact. Id.
In assessing whether a party has met their burden, the court must view the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles, 66 F.3d 1052 (9th Cir. 1995). All reasonable inferences are drawn in favor of the nonmovant. Id. If the moving party meets their burden, the burden shifts to the opposing party to present specific facts which show there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Auvil v. C.B.S. "60 Minutes", 67 F.3d 816 (9th Cir. 1995), cert. denied, 517 U.S. 1167 (1996). The nonmoving party cannot carry their burden by relying solely on the facts alleged in their pleadings. Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1994). Instead, their response, by affidavits or as otherwise provided in Rule 56, must designate specific facts showing there is a genuine issue for trial. Id.
III. DISCUSSION
Defendant moves for summary judgment arguing that:1) plaintiff cannot establish that she was terminated in violation of ORS 659A.040 because she was not treated differently than other similarly situated employees and she was terminated for a legitimate, non-discriminatory reason;
2) plaintiff's breach of contract claim fails because there was no employment agreement between defendant and plaintiff and defendant adhered to its written policies when it terminated plaintiff; and
3) there are insufficient facts to support an award of punitive damages.
In opposition, plaintiff argues that:
1) plaintiff's claim for breach of contract is valid: the manual never stated in uncertain terms that plaintiff was an at-will employee; defendant set forth policies which provided for certain procedures prior to termination; and defendant failed to follow the procedures set forth in its policy; and
2) plaintiff's wrongful discharge claim is valid: plaintiff did not violate the no call/no show policy; there is no policy to support the requirement that plaintiff provide a doctor's note verifying each day of absence; other employees were not required to provide such a note; plaintiff's absenteeism was due to an on-the-job injury; and plaintiff's supervisor failed to follow the duties imposed by defendant's policies.
In reply, defendant argues that:
1) plaintiff was not fired because she claimed an on-the-job injury and invoked the workers' compensation system, plaintiff was fired because she did not call in on a daily basis pending receipt of a physician's excuse;
2) under the policy plaintiff was required to call daily if she was absent for an extended period without medical authorization;
3) plaintiff was treated the same as every employee who violated the call in policy;
4) plaintiff was the only employee injured at Merle West while Ms. Gurske was interim Workers' Compensation Coordinator who was fired for failing to follow the call in rule — no employee who invoked the workers' compensation system was ever fired;
5) defendant's uncontroverted comparative evidence is sufficient to justify summary judgment;
6) plaintiff was an at-will employee — Merle West contract disclaimers were effective as a matter of law;
7) plaintiff's complaint does not contain a claim for breach of the covenant of good faith and fair dealing; and
8) plaintiff is not entitled to punitive damages.
Workers' Compensation Discrimination
To prevail on a claim for discrimination for filing a workers' compensation claim, plaintiff must show that: 1) she invoked the workers' compensation system, 2) she was discriminated against, and 3) she was discriminated against because she invoked the workers' compensation system. Schofield v. Marine Terminals Corp., 2002 WL 31466700, *7 (D.Or.). Plaintiff must prove a causal connection between her invoking the workers' compensation system and the adverse action. Hardie v. Legacy Health Systems, 167 Or.App. 425 (2000). To prove a causal connection, plaintiff must present evidence of a discriminatory motive. Huff v. Great Western Seed Co., 131 Or.App. 459, 464 (19). In a mixed motive case, plaintiff must show she would not have been fired but for the unlawful discriminatory motive of the employer. Hardie, 167 Or.App. at 435.
Defendant has presented undisputed evidence that:
Defendant has a policy which requires employees who are absent without medical authorization for an extended period of time to call their supervisor on a daily basis to report whether they will be at work. On May 13, plaintiff contacted the staffing office to let the hospital know she would not be able to return to work and that she would keep them posted. Plaintiff did not report to work or call her manager or supervisor to report her absences on May 14, 15, 16, 21, and 22.
On May 20, plaintiff's supervisor called her and instructed her that she would need to present a return to work release before she reported for her next scheduled shift on May 21. Plaintiff contacted Mr. Hughes and obtained a note excusing her absence for May 16 only. Plaintiff's note did not release her to work her next shift or excuse her absences on May 14 and 15 or May 21 and 22.
Plaintiff failed to comply with the call-in policy for these dates. The policy requires an employee to call in regardless of the reason for the absence. Plaintiff was aware of the policy.
Defendant's policy provides that an employees failure to call in or report for three consecutive shifts constitutes abandonment of their position. Plaintiff's failure to call in resulted in her termination. Plaintiff's termination was not tied to her invocation of the workers' compensation system.
Defendant has never terminated an employee for invoking the workers' compensation system. Defendant consistently enforces its call-in and reporting policies, and defendant has terminated other employees for violating these policies. Other employees who invoked the workers' compensation system were not terminated.
Plaintiff presents the following evidence:
The dates of her absenteeism were related to her on-the-job injury. Defendant's call in policy applies regardless of the reason for an employees absence. Therefore, this fact does not create an issue of fact.
Ms. Limb imposed the requirement that plaintiff obtain a note justifying her absences. Defendant's Occupational Injury Policy requires injured workers to provide authorization from their treating physician stating that an employee is to be taken off work completely. Limb Aff. Ex. D at 2. Therefore, Ms. Limb's requirement that plaintiff provide a doctor's note excusing her absences was consistent with hospital policy and does not create a genuine issue of material fact.
Defendant failed to follow the progressive discipline policy and other procedures with regard to plaintiff's termination. Defendant's policy regarding involuntary termination specifically states that the policy will generally be followed, but it reserves the right to impose any form of discipline and states that progressive discipline will not apply in every situation. Gordon Aff. Ex. G at 1. Therefore, the court finds that this does not create a genuine issue of material fact.
Plaintiff also presents evidence that defendant failed to follow the requirements of other policies including requirements contained in the Family Medical Leave policy and the Occupational Injury policy. The court finds that this evidence does not show that plaintiff would not have been fired but for her invocation of the workers' compensation system, and therefore, it does not create a genuine issue of material fact.
Defendant's undisputed evidence establishes that plaintiff would have been fired regardless of her invocation of the workers' compensation system for failure to comply with defendant's call in policy. Plaintiff failed to present evidence creating a genuine issue of material fact regarding whether plaintiff would have been terminated but for her invocation of the workers' compensation system. Therefore, defendant is entitled to summary judgment on plaintiff's workers' compensation discrimination claim.
Breach of Contract
Under Oregon law, at-will employees may be terminated for any non-discriminatory reason. See Sheets v. Knight, 308 Or. 220, 233 (1989). An employee handbook can be construed to create an implied contract between an employer and employee. See Brossard v. Int'l Business Machines Corp., 1999 WL 54574 (D.Or.), affirmed, 937 F.2d 611 (9th Cir. 1991). However, a disclaimer in the handbook or personnel policies can be sufficient to retain an employee's at-will status. See Lawson v. Umatilla County, 139 F.3d 690, 693 (9th Cir. 1998) (citations omitted).
Defendant presented undisputed evidence that plaintiff was an at-will employee. The employee handbook and personnel policy and procedures manual both contain disclaimers which clearly and unambiguously state that the handbook and the manual do not constitute a contract. Plaintiff presents evidence that the employee handbook and the policy manual contain certain terms which create certain rights and procedures, and argues that these terms create an ambiguity with regard to plaintiff's status as an at-will employee. The court finds that the disclaimers are unambiguous and that plaintiff's evidence does not create a genuine issue of material fact regarding plaintiff's at-will status. Therefore, defendant is entitled to summary judgment on plaintiff's breach of contract claim.
IV. ORDER
Based on the foregoing, it is ordered that defendant's motion for summary judgment (#23) is granted and this case is dismissed.