Opinion
No. CV-00-1433-HU
November 19, 2001
Michael D. Callahan, Callahan Stevens, Oregon, Attorney for Plaintiff.
David G. Hosenpud, Lane Powell Spears Lubersky, Portland, Oregon, Kyle Holifield, Wal-mart Stores, Inc., Bentonville, Arkansas, Attorneys for Defendant.
OPINION ORDER
Plaintiff Jeffrey Hadley brings this disability discrimination action alleging that defendant Wal-Mart Stores, Inc., plaintiff's former employer, failed to reasonably accommodate his disability, retaliated against him because of his disability, and wrongfully discharged him in retaliation for his efforts in seeking accommodation for his disability.
Defendant moves for summary judgment on all claims. I grant the motion as to the common law Oregon wrongful discharge claim and deny the remainder of the motion.
BACKGROUND
Plaintiff was diagnosed with adult onset diabetes mellitus in August 1997. He treats his diabetes with diet and oral medication. In October 1997, plaintiff interviewed for the position of cashier at the Wal-Mart store in North Salem. At that time, plaintiff signed a "Matrix of Essential Job Functions" on which he checked a box indicating he could perform the essential functions of the cashier job without accommodation. He started work on November 5, 1997.
On November 5, 1997, plaintiff's family physician, Dr. Gregory M. Thomas, M.D., wrote a letter stating that plaintiff had diabetes and needed to have regularly scheduled meal breaks. Defendant states that this letter was not in plaintiff's personnel file and that there is no evidence that Dr. Thomas actually sent it to anyone at Wal-Mart. Plaintiff states that he hand-delivered a copy of the letter to a Wal-Mart manager at the North Salem store within one week of being hired.
Over the course of his almost two-year employment with defendant, plaintiff was over or short in varying amounts on the count for his cash register on twenty-two separate occasions.
Defendant uses a progressive discipline policy called "Coaching for Improvement," with levels of discipline starting with verbal coaching, to written coaching, to "decision day," to termination. Plaintiff was "coached" five times and was given two decision days, including one for use of racial remarks and cursing. The Coaching for Improvement Policy is not, however, used for cases of gross misconduct which includes serious harassment. Rather, gross misconduct can subject the offender to immediate termination. This policy is echoed in the Employee Handbook.
Ed Oliver, the assistant manager supervising the cashiers, left the North Salem Wal-Mart in the spring of 1999. Thereafter, Jason Cecil was the assistant manager over the cashiers as well as plaintiff's supervisor.
On May 22, 1999, plaintiff went to the emergency room at the Veteran's Administration Hospital. He was treated by Dr. Kristin Snyder who wrote a "Work/School Excuse" which read, "[patient] reports problems [with] concentration while operating cash register — may not perform optimally [at] this task." Exh. 13 to Pltf Depo. Plaintiff contends that he gave this note to assistant manager Dan Miller. Defendant contends that Miller was not plaintiff's supervisor. Miller recalls plaintiff giving him a couple of doctor's notes and then forwarding them to Cecil and store manager Lanny Finley.
Plaintiff testified in deposition that when he gave Dr. Snyder's note to Miller, Miller told plaintiff that he would be off of the cash register in three days. Pltf Depo. at p. 50-51. Miller testified in deposition that because he was not plaintiff's supervisor, he did not have the authority to move plaintiff from the cash register or make any other change in the terms and conditions of plaintiff's employment. Miller Depo. at pp. 44, 68. Nonetheless, on June 25, 1999, plaintiff's primary job code was changed from cashier to sales associate with Miller signing off on the change. Plaintiff alleges, however, that even though his primary job was to be changed, he was kept on the cash register most of the time until September because his secondary job code was still that of cashier.
Plaintiff contends that during his employment, he complained about feeling overheated and nauseated while cashiering, but was still required to perform the job. He also complains that he was not given his lunch breaks on time and that immediate supervisors would become angry when he asked to be taken off the register to get his break.
On September 8, 1999, Dr. Ronald Grewenow at the Veteran's Administration Hospital wrote a note which stated that "Mr. Hadley notes symptoms of nausea and feeling overheated when he works the cash register. A firm diagnosis has not yet been established. He should not work the cash register until a firm diagnosis has been established (within three months)." Exh. 15 to Pltf Depo. Plaintiff contends that he delivered the September 8, 1999 note from Dr. Grewenow to his immediate supervisor. In addition, plaintiff's wife allegedly made copies of the note and distributed it to all of plaintiff's managers at the store. Plaintiff contends that store manager Finley told plaintiff that if he could not cashier, he should take a medical leave. However, within one or two weeks of receiving Dr. Grewenow's note, plaintiff was transferred to the position of stocker on the night shift.
In October 1999, Miller received a complaint of sexual harassment against plaintiff. Miller interviewed the complainant and a corroborating witness. He wrote out statements, which the alleged victim and witness both signed. Per defendant's policy, Miller did not inform plaintiff of the name of the complainant.
The complainant alleged that on September 25, 1999, the complainant was on a ladder and plaintiff came up behind her and then "grabbed her butt and asked `if he could hold it for [her].'" Deft's Exh. 5. On October 20, 1999, he allegedly asked her if anyone had ever bought her "eatable panties." Id. A witness also observed him throwing paper towels at the complainant's bottom while she was on a ladder. Id. He also allegedly told the complainant that while he was in the navy, he could get away with sexual harassment and that it was the thing to do. Id. The complainant alleged that he followed women around and always talked of sex. Id. Miller's notes state that plaintiff denied all of the allegations, but that Miller did not believe plaintiff. Id. He also wrote, apparently to Finley, that Miller told plaintiff that Finley would talk about it with plaintiff in the morning. Id. In deposition, Miller testified that plaintiff did not expressly agree or disagree with the accusations, but that plaintiff did not remember "it happening that way." Miller Depo. at p. 49.
Plaintiff returned to the store the next morning at which time Finley terminated him. The exit interview lists sexual harassment as the reason for the discharge. Deft's Exh. 6. His last day worked was October 21, 1999.
STANDARDS
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).
"If the moving party meets its initial burden of showing `the absence of a material and triable issue of fact,' `the burden then moves to the opposing party, who must present significant probative evidence tending to support its claim or defense.'" Intel Corp. v. Hartford Accident Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987)). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23.
The substantive law governing a claim determines whether a fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). All reasonable doubts as to the existence of a genuine issue of fact must be resolved against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). The court should view inferences drawn from the facts in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 630-31. If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Id.; In re Agricultural Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990); California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).
DISCUSSION
I. Nature of the Claims
In his complaint, plaintiff brings three claims. First, he brings a claim under Title I of the Americans with Disabilities Act [ADA] for "Failure to Accommodate." There, he alleges that he is a qualified individual with a disability and that with accommodation, he could perform all essential functions of his cashier or stocker positions or other available and suitable positions. Compl. at ¶¶ 15, 16. He alleges that he was not disabled from performing essential job functions for which he was qualified to perform with reasonable accommodation, except by the discriminatory treatment by defendant, which included, but was not limited to, defendant's failure to allow plaintiff to timely take his lunch and work breaks, defendant's failure to remove plaintiff temporarily from the register position, defendant's use of unreasonable discipline, defendant's failure to allow plaintiff to remain as a stocker, defendant's failure to reassign plaintiff to a position compatible with his physical conditions, and defendant's termination of plaintiff's employment. Id. at ¶ 16.
Although the claim is brought as a failure to accommodate claim, the briefing on the summary judgment motion suggests that plaintiff challenges not only the failure to accommodate, but the termination as well. At oral argument, plaintiff clarified that this ADA claim is both a failure to accommodate and a retaliation claim and that one aspect of the retaliation is the termination.
Second, plaintiff brings a claim under Oregon Revised Statute § (O.R.S.) 659.436 for "Unlawful Employment Practices." Here, plaintiff alleges that defendant discriminated against him on the basis of his handicap and that defendant's refusal to accommodate plaintiff's disability "and other acts as alleged above" violated O.R.S. 659.436. Id. at ¶¶ 27, 28. Although there is no reference to the termination under this claim, it appears from the briefing that plaintiff challenges both the failure to accommodate and the termination under Oregon law. At oral argument, plaintiff confirmed that this claim was a repeat of the challenges raised in the ADA claim, but brought under state law. Thus, plaintiff brings a failure to accommodate and retaliation claim under the Oregon statute, with one aspect of the retaliation being the termination.
In the third claim, entitled "Wrongful Discharge — Retaliation for Exercising Employment-Related Right," plaintiff asserts that he pursued his rights under the disability laws by requesting accommodation of his job duties by assignment to the modified job of stocker, objecting to defendant's failure to accommodate him by defendant's continued assignment of plaintiff to the cashier position, and by objecting to defendant's failure to accommodate plaintiff's diabetes by refusing plaintiff his regular meal and work breaks. Id. at ¶ 35. Plaintiff alleges that defendant harassed, failed to accommodate, and discharged plaintiff because he was pursuing his rights under the Oregon disability law. Id. at ¶ 36.
At oral argument, plaintiff confirmed that this claim was a common law wrongful discharge claim under Oregon law.
Several of the allegations arising under the failure to accommodate claim overlap with those arising under the retaliation part of the case. For ease of organization and resolution of these motions, I treat the allegations separately under each claim. However, any allegations that I have chosen to address under the failure to accommodate claim and which survive summary judgment, may be used in any aspect of the case. Similarly, any allegations I address as part of the retaliation claim and which survive summary judgment, may also be used in any aspect of the case. I do not mean to suggest that the overlapping allegations must be so segregated at trial. However, I urge the parties to discuss how best to present this evidence at trial to ease any possible confusion for the jury.
The parties agree, as do I, that the standards for evaluating the Oregon statutory claim mirror those used for the ADA claim. See Henderson v. Jantzen, Inc., 79 Or. App. 654, 657, 719 P.2d 1322, 1323-24 (1986) (standards used to establish a prima facie case of discrimination under Oregon law identical to those used in federal law); see also Snead v. Metropolitan Prop. Cas. Ins. Co., 237 F.3d 1080, 1090-93 (9th Cir.) (burden-shifting formula applicable in federal employment discrimination cases applies equally to the assessment of Oregon employment discrimination claims brought in federal court), cert. denied, 122 S.Ct. 201 (2001); O.R.S. 659.449 (Oregon's discrimination laws "shall be construed to the extent possible in a manner that is consistent with any similar provision of the federal [ADA], as amended"). Therefore, the following discussion on the failure to accommodate and retaliation claims applies to both the ADA and the Oregon statutory claims.
A. General Disability Discrimination Standards
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability. . . ." 42 U.S.C. § 12112(a). Title I of the ADA "insures full opportunities for people with disabilities in the workplace by requiring reasonable accommodation of employees' disabilities by their employers." Humphrey v. Memorial Hosps Ass'n, 239 F.3d 1128, 1133 (9th Cir. 2001), petition for cert. filed, 69 U.S.L.W. 3792 (U.S. June 13, 2001) (No. 00-1860).
The term "discriminate" includes
not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.42 U.S.C. § 12112(b)(5)(A).
To prevail on an ADA claim, the plaintiff must establish that he is a qualified individual with a disability. Humphrey, 239 F.3d at 1133. The ADA defines a "qualified individual with a disability," as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). A "disability" is "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(a).
For the purposes of this motion, defendant concedes that plaintiff suffers from a disability. But, defendant does not concede that plaintiff is a "qualified individual with a disability."
As noted above, plaintiff's position of hire was cashier. Defendant argues that plaintiff is not a qualified individual with a disability because plaintiff cannot perform the essential functions of the cashier position, with or without reasonable accommodation of his diabetes. Defendant notes that in addition to the diabetes, plaintiff has a neurological deficit which affects his short-term memory, his ability to concentrate, and the motor-coordination of his hands and fingers. In addition, defendant notes, plaintiff has been diagnosed with post-traumatic stress disorder, probable dysthymia (depression), and attention deficit hyperactivity disorder.
Based on these other diagnoses, defendant argues that even if plaintiff's diabetes were accommodated perfectly on every occasion, he could not perform the essential functions of the job of cashier because of his other physical and mental disabilities. Defendant emphasizes that Dr. Grewenow's September 1999 note made it clear that plaintiff could not do the job of cashier.
I disagree. The issue as argued by defendant is whether plaintiff's other impairments prevent him from performing the essential functions of the cashier position. First, other than the fact that plaintiff suffers from these additional problems, there is no evidence, one way or the other, that these other impairments affected his accuracy on the cash register and impacted his cash counts. Even with the twenty-two instances of being over or short, defendant still saw fit to keep plaintiff as a cashier until receiving Dr. Grewenow's note. Thus, until that point, defendant apparently viewed plaintiff as able to perform the essential functions of the job. Accordingly, at least on summary judgment, there is insufficient medical causation evidence to justify a conclusion that as a matter of law, plaintiff's additional impairments prevented him from performing the essential functions of the cashier position.
Second, there is no evidence in the record of the performance of other cashiers and whether twenty-two overs or shorts in an almost two-year period is above average, below average, or average. There is no cashier job description or any other information indicating how much inaccuracy defendant tolerated, a factor relevant to determining how essential that particular job requirement is for the cashier position.
Defendant fails to demonstrate, in this record, the level of importance attached to accuracy as an essential function of the cashier position. Thus, defendant has produced insufficient evidence to support its argument that plaintiff's other impairments prevented him from performing the essential functions of cashier.
Until the point of Dr. Snyder's May 1999 letter, plaintiff contends that he could perform the essential functions of cashiering with the reasonable accommodation of timely breaks and lunch breaks. Plaintiff has the burden of providing at least a facial showing that a reasonable accommodation is possible. Buckingham v. United States, 998 F.2d 735, 740 (9th Cir. 1993). Here, there is no contention from defendant that timely breaks and lunch breaks was an unreasonable accommodation request. Thus, at least until May 1999, plaintiff was a qualified individual with a disability because he could perform the essential functions of a cashier position with the reasonable accommodation of timely breaks and lunch breaks.
Although Dr. Snyder's letter is not an express request to transfer plaintiff, assuming for the purposes of this discussion that it was such a request, plaintiff still remained a qualified individual with a disability because reassignment can be a reasonable accommodation. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1120 (9th Cir. 2000) (en banc), cert granted in part, 121 S.Ct. 1600 (2001). Thus, the reasonable accommodation was a transfer out of the cashier position. But, the transfer does not negate the status plaintiff held at the time of the requested reasonable accommodation — a qualified individual who could perform the essential functions of the job with reasonable accommodations of timely breaks and lunch breaks.
Additionally, in Barnett, the court noted that the statutory definition of "qualified individual" "covers individuals who can perform the `essential functions' of a position which the individual either `holds or desires.'" Id. at 1101. Therefore, the court explained, even if the plaintiff in Barnett was unable to perform the essential functions of the cargo position he originally held, "if he could perform the essential functions of another position in the company which he `desires' he is covered under the ADA." Id. Here, since there is no evidence that plaintiff could not perform the essential functions of the stocker position with reasonable accommodation, a position he clearly desired, he is covered under the ADA.
B. Failure to Accommodate
Because plaintiff is a qualified individual with a disability, defendant was obligated to reasonably accommodate his diabetes. To determine what the appropriate reasonable accommodation should be, the "legislative history makes clear that employers are required to engage in an interactive process with employees in order to identify and implement appropriate reasonable accommodations." Barnett, 228 F.3d at 1111. The regulations envision "an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." 29 C.F.R. § 1630.2(o)(3).
Generally, the interactive process "is triggered either by a request for accommodation by a disabled employee or by the employer's recognition of the need for such an accommodation." Barnett, 228 F.3d at 1112. The employer should initiate the reasonable accommodation process without being asked if the employer: "(1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation." Id. (internal quotation omitted).
As recently explained in Humphrey:
Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. Barnett v. U.S. Air, 228 F.3d 1105, 1114 (9th Cir. 2000). "An appropriate reasonable accommodation must be effective, in enabling the employee to perform the duties of the position." Id. at 1115. The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process. Id. at 1114-15; Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) ("A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith."). Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible. Barnett, 228 F.3d at 1116.
Moreover, we have held that the duty to accommodate "is a `continuing' duty that is `not exhausted by one effort.'" McAlindin [v. County of San Diego], 192 F.3d [1226,] 1237 [(9th Cir), amended, 201 F.3d 1211, cert. denied, 120 S.Ct. 2689 (2000)]. The EEOC Enforcement Guidance notes that "an employer must consider each request for reasonable accommodation," and that "[i]f a reasonable accommodation turns out to be ineffective and the employee with a disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship." EEOC Enforcement Guidance on Reasonable Accommodation, at 7625. Thus, the employer's obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to seek to find accommodations that really work, and by avoiding the creation of a perverse incentive for employees to request the most drastic and burdensome accommodation possible out of fear that a lesser accommodation might be ineffective.
Humphrey, 239 F.3d at 1137-38.
In his memorandum in opposition to defendant's motion, plaintiff identifies three distinct alleged "failure to accommodate" violations. First, plaintiff alleges that defendant failed and refused to accommodate plaintiff's diabetes by neglecting or refusing to allow him to take regularly scheduled breaks and lunch breaks on time. Second, plaintiff alleges that defendant failed and refused to accommodate plaintiff's disability by failing to engage in a good faith interactive process with plaintiff to explore and identify timely, possible accommodations. Third, plaintiff alleges that once an accommodation for reassignment of position was made, defendant unreasonably delayed in effecting the job transfer.
As to the first argument, plaintiff alleges that on November 5, 1997, the day plaintiff began working for defendant, Dr. Thomas wrote a letter stating that
Mr. Hadley has adult onset diabetes mellitus and is on an oral agent to help control his blood sugar. In order to optimize his blood sugar it is important that he follow a good schedule for his meals and snacks. Should he be asked to work extended hours, some provision should be made so that he can continue to get his snacks in an orderly fashion.
Deft's Exh. 1 to G. Pltf Depo. Defendant denies that the letter was in plaintiff's personnel file, but plaintiff testifies in deposition that he hand-delivered it to a manager within a week of being hired. Pltf Depo. at pp. 40-41. Plaintiff believes the manager was front-end assistant manager Oliver. Pltf Affid. at ¶ 5. He states that he followed Oliver to the personnel office after handing him the letter and watched him place the letter in plaintiff's personnel file. Id. For the purposes of summary judgment, I must accept plaintiff's statement of the facts. As such, this letter would certainly be notification to defendant of plaintiff's disease and his necessary accommodation.
Plaintiff testified in deposition that it was a problem to get his lunch break on time. Id. at p. 42. He testified that for optimal control of his diabetes, he needed to eat four to five hours into a shift. Id. at p. 43. He testified that when Oliver was the front-end assistant manager, he had trouble getting meal breaks on time but it was better because Oliver "kept jumping if I didn't." Id. at p. 44. He indicated that two customer service managers (CSMs), Julia and Virginia, were pretty good about the lunch, but
a lot of the others, because — to be fair to them, they have to make sure that the lines are moving, and what would happen, they would get too focused on that and forget or ignore the fact that I needed my lunch break in order to be at my best.
Id. He indicated that he could not get off the register to go to the CSM to make the request but had to call the CSM over to the register to ask for a break. Id. He testified that CSMs would get angry in response. Id. When pressed for names, he stated that Julia got a little flustered, and that a CSM named Jason Webster got a little bit upset. Id. at p. 45. He couldn't remember other names with any certainty. Id.
Plaintiff states in his affidavit that after Oliver left the store, the timeliness of his meals and breaks became more problematic. Pltf Affid. at ¶ 6. He states that between April 1999 and his termination in October 1999, his first break was almost always late by thirty to sixty minutes, and approximately three times per week, his lunch breaks were usually late by thirty minutes up to three hours. Id. at ¶ 7. He states that there were times he did not get a lunch break at all. Id. He describes that there was a written schedule of breaks posted in a back area of the store and with his immediate CSM. Id. at ¶ 8. Until his cashier station was either relieved or closed, he was required to remain there regardless of whether it was his scheduled break time. Id. He further describes that when he complained from his cash register location that he was being denied a scheduled break, the CSM would either deny his request saying the customer lines had to be processed first, would get angry at him for asking, would tell him the customer came first, or would ignore him for a period of time. Id.
Defendant attempts to argue that plaintiff's evidence is not credible. Defendant, in its reply brief, notes that when pressed during deposition, plaintiff could name only two CSMs who became frustrated with him and that at the same time, plaintiff described one of them as being "pretty good" about lunch. Thus, according to defendant, plaintiff's claim is implausible.
The problem with defendant's argument is that it is an inappropriate one on summary judgment. Credibility determinations are the jury's province, not the court's. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (in ruling on a motion for summary judgment, credibility determinations and weighing of the evidence are jury functions, not those of the judge).
Based on plaintiff's testimony regarding the delivery of Dr. Thomas's note, the contents of the note, the apparently undisputed testimony that plaintiff was scheduled for breaks and lunch, and plaintiff's testimony that he did not always receive those breaks and lunches in a timely fashion and sometimes received criticism by CSMs or witnessed their frustration when he requested his lunches and breaks, summary judgment to defendant on this portion of the failure to accommodate claim is unwarranted.
Next, plaintiff contends that defendant failed to engage in a good faith interactive process with plaintiff to explore and identify timely, possible accommodations. This argument refers to defendant's actions after Dr. Snyder's May 1999 note.
As indicated above, Dr. Snyder, an emergency room physician at the Veteran's Administration Hospital, saw plaintiff on May 22, 1999. She gave plaintiff a written "WORK EXCUSE/SCHOOL EXCUSE" which stated: "[patient] reports problems [with] concentration while operating cash register — may not perform optimally [at] this task. Neurologic evaluation is pending." Deft's Exh. 13 to Pltf Depo.
Plaintiff alleges that he gave this note to Miller. He states that Miller told him he would be off of the cash registers in three or four days. Pltf Depo. at p. 50-51. Plaintiff's wife was present for the discussion and corroborates plaintiff's testimony. G. Hadley Depo. at pp. 16-17.
Miller states that he was not plaintiff's supervisor and did not have the authority to move plaintiff from the cash register or to make any other change in the terms and conditions of plaintiff's employment. Miller Depo. at pp. 44, 68. He indicates that whenever plaintiff gave him a physician's note, he gave the note to plaintiff's supervisor, and to store manager Finley. Id. at p. 19. Although Miller testified in deposition that he did not have the authority to move plaintiff off the register, a little over one month after Dr. Snyder wrote the note, Miller's signature appears as the approving manager on a position change for plaintiff. Deft's Exh. 14 to Ptlf's Depo. There, it shows that on June 25, 1999, Miller approved a change of plaintiff's primary job code to sales associate from cashier. Id. He remained as a cashier only in a secondary position. Id. The change was effective July 3, 1999. Id.
I agree with defendant that Dr. Snyder's note is not an express unequivocal statement that plaintiff can no longer perform the cashier position. Exactly what it communicated is subject to varying interpretations. At a minimum, and examining the evidence in a light most favorable to plaintiff, it could be interpreted as a trigger for the required dialogue between defendant and plaintiff regarding reasonable accommodation. Because this is a plausible interpretation, I must accept it for the purposes of this motion.
Additionally, the evidence regarding Miller's control over plaintiff's position is also disputed. While Miller denies any ability to make a change, his signature appears on the primary job code change in late June. Again, on summary judgment, I accept the interpretation of the evidence favoring the non-moving party. Thus, I construe the evidence as supporting plaintiff's claim that Miller had the power to at least engage in a reasonable accommodation discussion with plaintiff or request that it be initiated.
Based on these inferences, there is a question of fact whether Dr. Snyder's note should have triggered an interactive process between plaintiff and defendant as to what reasonable accommodations plaintiff needed for his diabetes. While defendant did act to change plaintiff's primary job code, there is no evidence of any express discussion with plaintiff about the accommodation between the time he handed in his note and June 25, 1999, when the primary job code was changed. Furthermore, the fact that nothing occurred for over one month could be perceived as unreasonable.
Additionally, the undisputed evidence is that even after the job code change, plaintiff continued to work primarily as a cashier. This could reasonably be interpreted as a failure by defendant to engage in an interactive process or as a failure to accommodate plaintiff's disability. Thus, I deny defendant's motion for summary judgment on this portion of the failure to accommodate claim.
Plaintiff's final "failure to accommodate" argument is that defendant unreasonably delayed transferring him from the cashier position once it received Dr. Grewenow's September 8, 1999 note. The evidence is that the transfer occurred one to two weeks after plaintiff submitted the note. Whether this delay was reasonable or unreasonable after all that had allegedly happened, is a jury question. Accordingly, I deny summary judgment for defendant on this portion of the failure to accommodate claim.
C. Retaliation
The most obvious component of the retaliation claim is plaintiff's termination. However, as noted in footnote one, some of the failure to accommodate allegations also comprise a part of the retaliation claim. For example, plaintiff contends that the failure to adequately respond to Dr. Snyder's note and the delay in transferring him from the cashier position after Dr. Grewenow's note, are also retaliatory acts by defendant.
Because, for the purposes of this Opinion, I have addressed those allegations as part of the failure to accommodate portion of the disability discrimination claim, I primarily focus on the termination allegation in this section.
Whether viewed as a retaliation claim or a termination claim, the standards are similar. "To prevail on a claim of unlawful discharge under the ADA, the plaintiff must establish that he is a qualified individual with a disability and that the employer terminated him because of his disability." Humphrey, 239 F.3d at 1133. To survive summary judgment, plaintiff must present a prima facie case for disability discrimination by establishing that (1) he is a disabled person within the meaning of the ADA; (2) he is qualified; and, (3) he was discriminated against because of his disability. See Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 271 (9th Cir. 1996).
Under the ADA, when an employee establishes a prima facie case of discrimination because of a disability, and the employer provides a non-discriminatory reason for that discharge which disclaims any reliance on the employee's disability in having taken the employment action, the analysis developed in McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] for suits under Title VII of the Civil Rights Act of 1964 applies. Snead, 237 F.3d at 1093 (internal quotation and footnote omitted); see also Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1175 (9th Cir. 1998) (per curiam) (after plaintiff makes a prima facie case, if the employer disclaims any reliance on the employee's disability in having taken the employment action, McDonnell Douglas Title VII disparate impact analysis should be used to determine if the employer's reason is pretextual; if the employer acknowledges reliance on the disability in the employment decision, the employer bears the burden of showing that the disability is relevant to the job's requirements.).
To establish a prima facie case of retaliation under the ADA, plaintiff must show: (1) that he engaged in or was engaging in activity protected by the ADA; (2) the employer subjected him to an adverse employment decision; and (3) there was a causal link between the protected activity and the employer's action. Barnett, 228 F.3d at 1120. The causal connection element may be met based on the "temporal proximity of the adverse action" and a request for reasonable accommodation. Id.
If viewed as a termination claim, plaintiff has established a prima facie case of discrimination. First, as indicated above, he has sufficiently demonstrated that he is a qualified individual with a disability. Second, there is no question that he was terminated and there is no question that termination is an adverse employment action. Third, given the evidence by plaintiff that certain CSMs expressed hostility to plaintiff when he requested his breaks, the allegations that defendant did not appropriately respond to Dr. Snyder's note and delayed in transferring plaintiff after receiving Dr. Grewenow's note, and plaintiff's testimony that he did not engage in the alleged sexual harassment, there is evidence from which a reasonable jury could find that plaintiff was terminated because of his disability. Thus, plaintiff makes out a prima facie case.
Defendant disclaims any reliance on plaintiff's disability as a motive for the termination and relies exclusively on the alleged sexual harassment by plaintiff of a co-worker. Thus, under Snead and Mustafa, plaintiff must come forward with evidence of pretext.
As explained in Snead:
"[the plaintiff] now has the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination. [The plaintiff] may succeed in this 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."
Snead, 237 F.3d at 1094 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). The Snead court further explained that
[t]hese two approaches are not exclusive; a combination of the two kinds of evidence may in some cases serve to establish pretext so as to make summary judgment improper. . . . Furthermore, in making such showing, [the plaintiff] does not necessarily have to introduce additional, independent evidence of discrimination. . . . [A] disparate treatment plaintiff can survive summary judgment without producing any evidence of discrimination beyond that constituting [the] prima facie case, if that evidence raises a genuine issue of material fact regarding the truth of the employer's proffered reasons.
Id. (internal quotations and citations omitted).
A plaintiff is required to produce "very little" direct evidence of an employer's discriminatory intent to move past summary judgment. Chuang v. University of Ca. Davis Bd. of Trustees, 225 F.3d 1115, 1128 (9th Cir. 2000). Direct evidence of discrimination is "evidence which, if believed, proves the fact of discriminatory animus without inference or presumption." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (internal quotation omitted). Alternatively, the plaintiff may come forward with circumstantial evidence that the employer's proffered reasons were pretextual, but such circumstantial evidence must be "specific" and "substantial" to create a triable issue of fact as to whether the employer intended to discriminate. Id. at 1222.
Plaintiff argues that defendant's reasons for the termination are not credible and are inconsistent with its own policies. Miller explained that his instructions from higher management were to finish the sexual harassment investigation in twenty-four hours. Plaintiff argues that defendant's policy is of providing a thorough investigation. See Exh. 20 to Pltf Depo. at p. 3 ("All complaints [of harassment] must be investigated thoroughly and promptly."). Plaintiff argues that pressure to complete the investigation in twenty-four hours is inconsistent with a policy of thoroughness. Plaintiff also complains that the investigation amounted to talking with the complainant and one witness about the events which allegedly occurred one month before the investigation. Miller refused to identify the complainant to plaintiff and, according to plaintiff, provided only a sketch of the situation. Plaintiff denied the charges.
Additionally, plaintiff notes that in his deposition testimony, Miller indicated that in a sexual harassment investigation, if the accused employee denied the actions, the allegations should be documented, but the employee should not be terminated. Miller Depo. at pp. 60-61. Defendant's policies suggest that termination may be appropriate. Exh. 9 to Pltf Depo. at p. 4; Exh. 20 to Pltf Depo. Miller's testimony raises an issue of fact as to what defendant's policy is, or how it should be interpreted.
Plaintiff's pretext evidence is specific and substantial and thus, is sufficient to overcome defendant's summary judgment motion. First, all of plaintiff's "failure to accommodate" allegations can be interpreted as evidencing hostility to plaintiff because of his diabetes: not giving scheduled breaks and lunches, hostility from managers when breaks and lunches were requested, not engaging in an interactive process after Dr. Snyder's note, failure to change the primary job code for five weeks after Dr. Snyder's note, keeping plaintiff on as a cashier despite the job code change in early July 1999, and failure to transfer him to a new position for one to two weeks after receiving Dr. Grewenow's September 8, 1999 note. Second, the sexual harassment investigation itself raises questions about the thoroughness of defendant's investigation and the appropriate sanction if the accused denies the allegations. Together, plaintiff's evidence amounts to specific and substantial evidence of pretext.
Similarly, if the termination is analyzed as a retaliation claim rather than a straightforward termination claim, the same result occurs. Plaintiff sustains a prima facie case of retaliation by showing that he engaged in protected activity by requesting the reasonable accommodation of timely breaks and lunch breaks and later, to request, via Dr. Grewenow's September 1999 letter, the reasonable accommodation of a transfer to a different position. His termination came approximately five weeks after that letter and within several months of Dr. Snyder's May 1999 letter. This is sufficient to establish a prima facie case of retaliation.
Next, defendant offers its legitimate non-retaliatory reason for the discharge of the sexual harassment complaints. This triggers plaintiff's burden to demonstrate that defendant's justification is pretextual. Based on the discussion above, there is sufficient evidence of pretext to preclude summary judgment for defendant on the retaliation/termination claim.
D. Common Law Wrongful Discharge Claim
Plaintiff alleges that the termination violates Oregon common law prohibiting "wrongful discharges." However, under Oregon law, "[e]ven if a particular case fits into the narrow exception to the employment-at-will situation, the availability of a common law remedy is conditioned on the absence of adequate statutory remedies [and thus,] the availability of an adequate statutory remedy precludes a common law wrongful discharge claim." Washington v. Fort James Operating Co., 110 F. Supp.2d 1325, 1334 (D.Or. 2000) (citation omitted).
In a 1999 case, Magistrate Judge Ashmanskas concluded that Oregon's disability discrimination statutes precluded a wrongful discharge claim alleging termination based on disability. Underhill v. Willamina Lumber Co., No. CV-98-630-AS, 1999 WL 421596, at *4 (D.Or. May 20, 1999). Although the precise statute at issue there is not the same as the one asserted here, the remedies for the statute at issue in Underhill and the statute here are both found in O.R.S. 659.121(2). The Oregon Court of Appeals has described this remedies statute as providing "virtually all remedies that would have been available at common law[.]" Farrimond v. Louisiana-Pacific Corp., 103 Or. App. 563, 567, 798 P.2d 697, 699 (1990). Thus, plaintiff's wrongful discharge claim is precluded by the presence of adequate statutory remedies under O.R.S. 659.121(2). Furthermore, because her ADA claim and her wrongful discharge claim are based on the exact same conduct, I need not determine whether the ADA similarly precludes her wrongful discharge claim. As Magistrate Judge Ashmanskas noted in Underhill, the "existence of one statutory remedy is sufficient to preclude a wrongful discharge claim[,] . . . regardless of whether the remedies under the [Family Medical Leave Act] or the ADA are similarly sufficient." Underhill, 1999 WL 421596, at *4 (citation omitted). When the factual allegations comprising the various statutory claims and the wrongful discharge claim are identical, as they are here, Magistrate Judge Ashmanskas's reasoning is sound. Defendant is entitled to summary judgment on the common law wrongful discharge claim.
CONCLUSION
Defendant's motion for summary judgment (#21) is granted as to the common law wrongful discharge claim and is denied as to the statutory disability discrimination claims.
IT IS SO ORDERED.