Opinion
Civil No. 03-3051-CO.
July 6, 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(c). Before the court is defendant's motion for summary judgment (#23). Plaintiff has not responded to this motion.
I. FACTS
Defendant presents the following undisputed facts in support of its motion for summary judgment:
1. Plaintiff was an at-will employee. Limb Aff. ¶ 4; Exs. A B, attached to Limb Aff.
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 plaintiffs 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, 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 claims she 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 also 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 and 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.
15. 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.
16. Because plaintiff had 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.
II. LEGAL STANDARDS
Pursuant to Rule 56(c) 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(c); 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.
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 that she was discriminated against because she invoked the workers' compensation system. Schofield v. Marine Terminals Corp., 2002 WL 31466700, *7 (D.Or.). Defendant has presented undisputed evidence that: plaintiff failed to comply with the policy which required her to call in her absences daily; plaintiff's failure to comply with this policy resulted in her termination; 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. Defendant has shown that plaintiff was not discriminated against because she invoked the workers' compensation system. Based on the undisputed evidence, the court finds that defendant is entitled to summary judgment on plaintiff's first claim.
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 presumes at-will status and contains a disclaimer which clearly states that the handbook does not constitute a contract and that employment is at-will. Based on the undisputed evidence, defendant is entitled to summary judgment on plaintiff's second 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.