Opinion
3:22-cv-00391-AR
06-16-2023
OKSANA KHAMNAYEV, Plaintiff, v. SCHNITZER STEEL INDUSTRIES, INC., a domestic business corporation, Defendant.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD UNITED STATES MAGISTRATE JUDGE
Plaintiff Oksana Khamnayev filed this action against her former employer, Schnitzer Steel Industries, Inc., asserting claims for disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and Oregon's statutory parallel, ORS § 659A.100 et seq. (Compl. ¶¶ 23-58, ECF No. 1 (Claims 1-4).) Khamnayev also asserts claims for interference under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., and Oregon's statutory parallel, the Oregon Family Leave Act (OFLA), ORS § 659A.150 et seq. (Id. ¶¶ 59-72 (Claims 5-6).) Khamnayev requests compensatory damages, equitable relief, liquidated damages, attorney fees, and costs.
Schnitzer Steel moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss all of Khamnayev's disability discrimination claims with prejudice, arguing that she has not cognizably or plausibly alleged that she is “disabled” under federal and state law. (Def.'s Mot. Dismiss at 5-9, ECF No. 7). Schnitzer Steel also contends that Khamnayev's FMLA and OFLA claims should be dismissed because her allegations do not establish that it retaliated or discriminated against her for taking protected leave. (Id. at 9-12.)
As explained below, the court recommends denying Schnitzer Steel's motion to dismiss (ECF No. 7). Schnitzer Steel's argument that Khamnayev has not alleged a “cognizable” disability under the ADA and Oregon's disability discrimination statutes relies on stale case law, and Khamnayev's allegations plausibly establish disability discrimination for Claims 1-4. As to Claims 5 and 6, Khamnayev's complaint adequately establishes that her taking of protected leave was a “negative factor” in Schnitzer Steel's decision to terminate her.
BACKGROUND
The court construes as true the factual allegations of Khamnayev's complaint. Weston Fam. P'ship LLP v. Twitter, Inc., 29 F.4th 611, 617 (9th Cir. 2022). Khamnayev was employed by Schnitzer Steel on March 15, 2013, and terminated from employment on November 1, 2019. (Compl. ¶ 10.) At the time of her termination, Khamnayev held the position of Senior Tax Manager in Schnitzer Steel's tax department. (Id.) At all relevant times, she performed her job satisfactorily. (Id. ¶ 12.)
Khamnayev has the severe physical condition of a herniated disc, which limits her ability to walk, sit, and stand. (Id. ¶ 13.) In May 2019, Khamnayev gave Schnitzer Steel a medical release from her doctor stating that she “should not work more than 40 hours a week” because of aggravation to her herniated disc. (Id. ¶¶ 14, 17.) Schnitzer Steel denied that request for accommodation, and Khamnayev worked more than 40 hours a week from around June 4 until September 25, 2019. (Id. ¶ 15.) During that period, she worked 23 days straight without a day off and averaged 60 to 80 working hours per week. (Id. ¶ 16.)
Khamnayev requested and was granted protected family medical leave from September 25 through October 6, 2019. (Id. ¶ 16.) Upon her return to work, Khamnayev submitted a second medical release from her doctor to Schnitzer Steel. (Id. ¶ 17.) The release stated that Khamnayev should not work more than 40 hours in a one-week period because she was at risk for aggravation of her herniated disc. The release also stated that Khamnayev “should remain on work restriction through [December 31, 2019] and will be reevaluated in December 2019.” Finally, it provided that “[Khamnayev's] medical condition is temporary, and [she] should be released to full duty contingent upon reevaluation 12/31/19.” (Id.) Khamnayev also requested vacation time from November 7, 2019, through November 17, 2019, to reduce the time that an accommodation was necessary. (Id. ¶ 18.)
After Khamnayev submitted that medical release, Schnitzer Steel requested that she submit an “essential functions plan,” which she completed. (Id. ¶ 18.) From early until late October 2019, Khamnayev worked at least 40 hours a week to finish outstanding projects that her supervisor, Dave Anthony, requested that she complete. (Id. ¶ 19.) During that time, Khamnayev's condition continued to worsen as a result of her working conditions.
On October 29, 2019, Anthony requested a list of Khamnayev's projects and their projected completion dates. (Id. ¶ 21.) That request was made in preparation for Khamnayev's termination. Later that day, Khamnayev met with Anthony and Kendra Creighton-the Human Resources Manager at Schnitzer Steel. Anthony informed Khamnayev that Schnitzer Steel refused to accommodate her request to work no more than 40 hours per week as a Senior Tax Manager. Instead, Schnitzer Steel offered to transfer Khamnayev to the positions of Safety Manager, Crane Operator, or Inventory Support in the Portland Recycling Department-all of which were demotions. Khamnayev was told that if she did not accept any of those positions, her employment would be terminated. Because the positions did not allow Khamnayev to use her skills as a Certified Public Accountant, she declined the proposed transfers. (Id. ¶¶ 21-22.) Schnitzer Steel terminated her on November 1, 2019. (Id. ¶ 22.)
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal, therefore, can be based on either the “lack of a cognizable legal theory” or the “absence of sufficient facts alleged under a cognizable legal theory.” Goldingay v. Progressive Cas. Ins. Co., 306 F.Supp.3d 1259, 1263 (D. Or. 2018) (citing Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (1988)). To survive a motion to dismiss under a cognizable legal theory, a complaint “must contain sufficient factual matter to state a facially plausible claim to relief.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true.”). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).
The complaint “may not simply recite the elements of a cause of action”; instead, it must contain “sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (emphasis added); Iqbal, 556 U.S. at 678 (Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”). In evaluating the sufficiency of a complaint, the court accepts as true all well-pleaded factual allegations and construes them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). The court need not, however, credit a plaintiff's legal conclusions that are couched as factual allegations. Iqbal, 556 U.S. at 678-79.
DISCUSSION
After she was terminated from her position as a Senior Tax Manager, Khamnayev initiated this action on March 10, 2022, asserting that Schnitzer Steel discriminated against her on the basis of disability in violation of the ADA and Oregon law. In Claims 1 through 4, Khamnayev alleges that Schnitzer Steel violated the ADA and Oregon's parallel disability discrimination statute by failing to provide reasonable accommodation and by unlawfully discharging her on the basis of disability. (Compl. ¶¶ 23-58 (citing 42 U.S.C. § 12112(a), (5)(A) and ORS § 659A.112(1), 2(e)).) In Claims 5 and 6, she alleges that Schnitzer Steel discriminated against her in violation of the FMLA and OFLA because she applied for protected family medical leave. (Id. ¶¶ 59-72.) Schnitzer Steel moves under Rule 12(b)(6) to dismiss each of those claims for failure to state a claim. (Def.'s Mot. Dismiss at 1-2.)
A. Unlawful Discharge on the Basis of Disability (Claims 1 and 2 )
In Claims 1 and 2, Khamnayev alleges that Schnitzer Steel discriminated against her on the basis of disability when it terminated her employment. (Compl. ¶¶ 23-41.) Both the ADA and Oregon law prohibit discrimination based on disability in hiring, compensation, discharge, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a); ORS § 659A.112(a). Because Oregon's antidiscrimination statutes are “construed to the extent possible in a manner that is consistent with any similar provision” of the ADA, the court will analyze Claims 1 and 2 together. See ORS § 659A.139(1) (directing that ORS §§ 659A.103 to 659A.144 be construed in lockstep with similar ADA provisions).
Courts within this district often collapse the analysis for disability discrimination claims under the ADA and Oregon law. See Magee v. Trader Joe's Co., Case No. 3:18-cv-10956-AC, 2020 WL 9550008, at *7 (D. Or. Sept. 1, 2020); Dean v. Safeway, Inc., Case No. 3:12-cv-01875-PK, 2014 WL 6473543, at *16 (D. Or. Nov. 18, 2014). Oregon appellate courts have also recognized that “interpretations of [the ADA and ADAAA] are useful in our determination of whether an employer has engaged in impermissible discrimination under ORS 659A.112.” Kelley v. Wash. Cnty., 303 Or.App. 20, 26 (2020).
Schnitzer Steel argues that Claims 1 and 2 should be dismissed because Khamnayev does not allege a cognizable “disability” under the ADA and Oregon law and because she has not plausibly alleged disability discrimination under those statutes. The court addresses each argument below.
1. cognizable disability
“Disability” is a defined term under the ADA and Oregon law. See 42 U.S.C. § 12102(1); ORS § 695A.104. To establish “disability,” a plaintiff must adequately allege that she has either: “(A) a physical or mental impairment that substantially limits one or more major life activities [. . .]; (B) a record of such impairment; or (C) [been] regarded as having such an impairment.” 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(a), (g); ORS § 659A.104. Khamnayev primarily alleges disability under the “actual disability” prong of that definition.
Khamnayev alternatively alleges that Schnitzer Steel “regarded her” as disabled. The court assesses the plausibility of those allegations later in this F&R.
Under the “actual disability” prong, Khamnayev must plead facts plausibly establishing that she has “[1] a physical or mental impairment [2] that substantially limits [3] one or more major life activities.” 42 U.S.C. § 12102(1)(A); ORS § 659A.104(1)(a). Khamnayev alleges that she has the physical impairment of a herniated disc, which limits the major life activities of “walking, sitting, and standing” and restricts her from working “more than 40 hours per week.” (Compl. ¶¶ 13-14.); see also 29 C.F.R. § 1630.2(h) (defining “physical impairment); 42 U.S.C. § 12102(2)(A) (defining “major life activities); ORS § 659A.104(2) (same). Schnitzer Steel does not contest that Khamnayev's herniated disc qualifies as a physical impairment or that walking, sitting, standing, and working are “major life activities” under the ADA and Oregon law. Instead, it argues that-under precedent from the Ninth, Fourth, and Third Circuits-an alleged “inability to work more than 40 hours a week” cannot be considered a “substantial limitation” on the major life activity of working. (Def.'s Mot. Dismiss at 5.)
An understanding of the history of the ADA is necessary to resolve Schnitzer Steel's argument. After the passage of the ADA in 1990, the Supreme Court issued a series of opinions that “narrowed the broad scope of protection” that Congress intended to afford individuals under the Act by imposing a demanding standard for plaintiffs to show that an impairment “substantially limited” a major life activity. See ADAAA, Pub. L. No. 110-325, § 2(a)(4)-(5). In 1999, the Court held in Sutton v. United Air Lines, Inc., 527 U.S. 471, 488 (1999), that impairments that are “corrected by medication or other measures” are not substantially limiting unless the individual was substantially limited “notwithstanding the use of a corrective device.” The “substantially limits” definition was further narrowed in 2002, when the Court determined that the term “need[ed] to be interpreted strictly to create a demanding standard for qualifying as disabled.” Toyota Motor Mfg., Ky., Inc. v. Williams (Toyota Motor), 534 U.S. 184, 197 (2002). In Toyota Motor, the Court also held:
[T]o be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impacts must also be permanent or long term.Id. at 198 (emphases added).
“[A]s a result of [those] Supreme Court cases, lower courts . . . incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities.” ADAAA, Pub. L. No. 110-325, § 2(6). To remedy that problem and to ensure “broad coverage” under the ADA, Congress enacted the ADA Amendments Act (ADAAA) in 2008. Id. § 2(1); Rohr v. Salt River Project Agric. Imp. & Power Dist., 555 F.3d 850, 861 (9th Cir. 2009). An express purpose of the ADAAA was to “reject[] the narrow understanding of ‘substantially limits'” that the Supreme Court had adopted in Sutton and Toyota Motor. ADAAA, § 2(a)(4)-(8). In particular, the ADAAA rejected Toyota Motor's holding that, to establish a substantially limiting impairment, “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.” Id. § 2(b)(4) (citing Toyota Motor, 534 U.S. at 184).
In rejecting a narrow definition of “substantially limits,” the ADAAA “did not enact a new general definition of ‘disabled' or ‘substantially limits.'” Shields v. Credit One Bank, 32 F.4th 1218, 1223 (9th Cir. 2022) (emphasis in original). Instead, the ADAAA “accomplishe[d] its purpose to alter the then-existing state of the law through a series of more indirect measures.” Id. For instance, it added several rules of construction to the ADA, including the principles that (1) “disability” be “construed in favor of broad coverage . . . to the maximum extent permitted by the [ADA],” and that (2) “substantially limits” be “interpreted consistently with the findings and purposes of the [ADAAA].” 42 U.S.C. § 12102(4)(A), (B). Oregon's statutes and regulations have also been amended to ensure construction “in favor of broad coverage of individuals.” ORS § 659A.139(2); OAR § 839-006-0205(12).
In line with those rules of construction, the Equal Employment Opportunity Commission (EEOC) issued regulations in 2011 to clarify that “substantially limits” is “not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i).
The EEOC's authority to issue regulations “includes the authority to issue regulations implementing the definitions of disability in section 3 (including rules of construction) and the definitions in section 4 [of the ADA], consistent with the [ADAAA].” Shields, 32 F.4th at 1224 (quoting 42 U.S.C. § 12205a).
The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual's impairment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.Id. § 1630.2(j)(1)(iii) (emphasis added).
The regulations explain that “determination of whether an impairment substantially limits a major life activity requires an individualized assessment,” and that courts should interpret “substantially limits” to “require a degree of functional limitation that is lower than the standard” applied in Sutton and Toyota Motors. Id. § 1630.2(j)(1)(iv). An impairment “need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” Id. § 1630.2(j)(1)(ii); OAR 839-006-0205(12). The regulations also instruct courts, when appropriate, to consider “as compared to most people in the general population,” the condition, manner, and duration of time under which the individual performs the major life activity. 29 C.F.R. § 1630.2(j)(4)(i); OAR 839-006-0205(12). The court's analysis should be made “without regard to the ameliorative effects of mitigating measures.” 29 C.F.R. § 1630.2(j)(4)(vi); OAR 839-006-0205(12). Finally, the “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” under the “actual disability” prong of the ADA. 29 C.F.R. § 1630.2(j)(vi), (ix); OAR 839-006-0205(12).
Returning to the primary argument, Schnitzer Steel asserts that, under precedent from the Ninth, Third, and Fourth Circuits, “an inability to work more than 40 hours a week” is not a “substantial limitation” on the major life activity of working. (Def.'s Mot. Dismiss at 5 (citing Neal v. Kraft Foods Glob., Inc., 379 Fed.Appx. 632 (9th Cir. 2010) and Boitnott v. Corning Inc., 669 F.3d 172 (4th Cir. 2012)); Def.'s Reply at 6 (citing Bialko v. Quaker Oats Co., 434 Fed. Appx. 139 (3d Cir. 2011).) The court is unpersuaded that the authorities on which Schnitzer Steel relies support that broad assertion.
To begin with, Schnitzer Steel overstates the Ninth Circuit's holding in Neal v. Kraft Foods Global, Inc., 379 Fed.Appx. 632 (9th Cir. 2010). Contrary to Schnitzer Steel's broad assertion that the Neal court “agreed that a forty-hour workweek limit is not a cognizable disability” under the ADA, the Ninth Circuit's holding in Neal is limited to the facts of that case. (See Def.'s Reply at 5.) In Neal, a plaintiff brought suit after her employer declined to accommodate a “medical restriction ‘prohibiting her from work[ing] overtime until further notice.'” Neal, 2009 WL 799644, at *1. The medical restriction was issued in 1994, and the employer honored it without issue until 2005, when it began to order a series of independent medical examinations (IME) for the plaintiff. Id. at *2-3. Following an IME in 2007, the plaintiff was released to work with a restriction of “no lifting, pulling, or pushing greater than 25 lbs.” Id. at *3. The employer informed the plaintiff that she had the option to return to work “full duty” with that lifting restriction or to dispute that medical release by undergoing another IME with a doctor of her choice. Id. Foregoing those options, the plaintiff instead brought suit, alleging discrimination in violation of ORS § 659A.112(2)(e). In federal district court, the employer moved for summary judgment on two grounds. The court denied summary judgment on the first ground, finding that a genuine issue of material fact existed as to whether the plaintiff was “disabled” under state law. Id. at *5. The court granted summary judgment on the second ground, however, concluding that the employer was absolved of its duty to provide a reasonable accommodation because the plaintiff had failed to participate meaningfully in the mandatory interactive process. Id. at *9.
On appeal, the Ninth Circuit concluded that “summary judgment should have been granted on the basis that [the plaintiff] failed to establish a triable issue of material fact as to whether she was disabled at the time of the relevant employment action in 2007.” Neal, 379 Fed.Appx. at 633. In so holding, the Ninth Circuit noted that the plaintiff's only evidence in support of her asserted 40-hour workweek and lifting restrictions was a “1994 physical evaluation that stated she should limit her sitting to 6 hours out of an 8-hour workday, standing to 2 hours out of an 8-hour workday, and walking to 4 hours out of an 8-hour workday.” Id. at 634. The Ninth Circuit affirmed summary judgment for the employer, concluding that, “[e]ven if a jury could find that the [stale physical evaluation] was the best assessment of [the plaintiff's] physical condition in 2007, no reasonable jury could find that the level of limitation stated in [that] 1994 physical evaluation as to her ability to sit, stand, and walk is substantial.” Id. (emphasis added).
Given that narrow holding-particularly its focus on the lack of evidence to support the plaintiff's alleged physical limitations-it is unclear where Schnitzer Steel derives its assertion that Neal stands for the broad position that a 40-hour workweek limitation cannot, as a matter of law, constitute a “substantial limitation” on a major life activity under the ADA. And even assuming that Neal once stood for such a position, that case applied a definition of “substantially limits” that pre-dated the ADAAA. Neal, 2009 WL 799644, at *5 n.1 (noting that the ADAAA is not retroactive and applying the reasoning of Toyota Motor). Thus, the Ninth Circuit's reasoning in Neal is not helpful to understand the post-ADAAA definition of “substantially limits.”
For similar reasons, Schnitzer Steel's reliance on authorities from the Third and Fourth Circuits is misplaced. In Bialko, the Third Circuit affirmed summary judgment for an employer, concluding that the employee had not established “disability” under the ADA because his “claimed inability to work overtime [did] not constitute a substantial limitation” on a major life activity. Bialko, 434 Fed.Appx. at 142 (emphasis added) (citing Cotter v. Ajilon Servs., Inc., 287 F.3d 593, 598 (6th Cir. 2002) and Tardie v. Rehab. Hosp. of R.I., 168 F.3d 538, 542 (1st Cir. 1999)). In Boitnott, the Fourth Circuit held that “an inability to work overtime does not constitute a ‘substantial' limitation on a major life activity.” Id. at 176 (noting “overwhelming and uniform authority from numerous sister circuits . . . that an inability to perform overtime work, standing alone, is not a ‘substantial' limitation under the ADA”). Relying on those cases, Schnitzer Steel argues that Khamnayev's alleged inability to work more than 40 hours a week cannot be considered a substantial limitation on her ability to work. (Def.'s Mot. Dismiss at 5.)
The court observes that-as in Neal-neither the Boitnott nor the Bialko courts applied the ADAAA's more expansive interpretation of “substantially limits.” For instance, as support for its cursory conclusion that “inability to work overtime does not constitute a substantial limitation,” the Third Circuit relied on cases that pre-dated the ADAAA and the EEOC's 2011 regulations. See Bialko, 434 Fed.Appx. at 142 (citing Tardie v. Rehab. Hosp. of R.I., 168 F.3d 538, 542 (1st Cir. 1999); Cotter v. Ajilon Servs., Inc., 287 F.3d 593, 598 (6th Cir. 2002); and Kellogg v. Union Pac. R.R. Co., 233 F.3d 1083, 1087-88 (8th Cir. 2000)). Likewise, the Fourth Circuit applied the definition of “substantially limits” that was established by the Supreme Court in Sutton and Toyota Motor and has since been rejected under the ADAAA. See Boitnott, 669 F.3d at 175 n.4. The Third and Fourth Circuit's application of that more exacting definition of “substantially limits” was appropriate in those cases because the ADAAA became effective on January 1, 2009, and does not apply retroactively. See ADAAA § 8; Becerril v. Pima Cnty. Assessor's Off., 587 F.3d 1162, 1164 (9th Cir. 2009). This dispute, however, arises under the ADAAA and subsequent regulations, and Schnitzer Steel has not provided the court with sufficient argument to dismiss Claims 1 and 2 under that correct framework for “substantially limits” as applied to Khamnayev's inability to work more than a 40-hour work week.
See O'Brien v. Mass. Inst. of Tech, 976 N.E.2d 154, 158 n.7 (Mass. App. Ct. 2012) (“We observe that some Federal courts have found that, as a matter of law, inability to work more than a forty-hour week is not a ‘substantial limitation' on the ability to work for purpose of the [ADA]. However, these cases were decided under a construction of the ADA's ‘substantial limitation' language that was subsequently rejected by Congress in the ADA Amendments Act of 2008.”) (citing Boitnott, 669 F.3d at 172)). Both Bialko (filed Feb. 26, 2008) and Boitnott (filed May 25, 2006) predate the ADAAA.
In summary, given the ADAAA's mandate and Oregon's parallel guidance that “substantially limits” and “disability” should be construed in favor of broad coverage, the court rejects Schnitzer Steel's argument that, under Neal, Boitnott, and Bialko, an inability to work more than 40 hours a week is not-as a matter of law-a “substantial limitation” on the major life activity of working. Accordingly, the court finds that Khamnayev's complaint alleges a cognizable disability under the ADA and Oregon law.
2. plausible claim for relief
As secondary grounds for dismissal, Schnitzer Steel argues that Khamnayev has not stated plausible claims for unlawful discharge based on disability. (Def.s' Reply at 4-8.) Under its precedent in Iqbal/Twombly, the Supreme Court held that, to survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible in its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 547). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (emphasis added). The court does not credit conclusory allegations; however, it must accept as true the factual allegations in the complaint and construe them in favor of the plaintiff. Id. at 679.
To state a plausible claim for unlawful discharge on the basis of disability under the ADA and ORS § 659A.112, Khamnayev must allege facts from which the court can reasonably infer that: (1) she is “disabled”; (2) she is a “qualified individual”; and (3) she suffered an adverse employment action because of her disability. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001) (standard for discrimination claims “under Oregon law is identical to that used in federal law”); Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012). Schnitzer Steel challenges the sufficiency of all three elements.
Turning to the first element, “disability” is a statutorily defined term that includes having “a physical or mental impairment that substantially limits one or more major life activities” or being “regarded as having such an impairment.” 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(a), (g); ORS § 659A.104. For Claims 1 and 2, Khamnayev alleges disability under both the “actual” and “regarded as” prongs of that definition.
To satisfy the “actual disability” prong, Khamnayev alleges that she has the physical impairment of a herniated disc that limits her ability engage in the major life activities of walking, sitting, standing, and working. (Compl. ¶¶ 12-14.) Schnitzer Steel argues that her “conclusory statement” does not plausibly establish a “substantial limitation” because it lacks specific facts about how the herniated disc affected Khamnayev outside of work. (Def.'s Reply at 10.) The court is not persuaded. Although the court “does not unlock the doors of discovery for a plaintiff armed with nothing more than legal conclusions,” the pleading standard of Rule 8 also “does not require ‘detailed factual allegations'” to establish plausibility. Iqbal, 556 U.S. at 678- 79. Drawing on “its experience and common sense” and construing the allegations in the light most favorable to Khamnayev, the court reasonably infers that a herniated disc could substantially limit her ability to walk, sit, and stand. Id. at 664; see Nunies v. HIE Holdings, Inc., 908 F.3d 428, 434 (9th Cir. 2018) (inferring, on summary judgment, that “a stabbing pain when raising one's arm above chest height substantially limits the major life activity of lifting and possibly working”). Additionally, Khamnayev's alleged impairment and limitations are supported by factual allegations that she gave Schnitzer Steel “medical release[s] from her doctor that stated [she] should not work more than 40 hours per week based on her disability” and that her condition “continued to worsen” in October 2019. (Compl. ¶¶ 14, 17.) Taking those allegations as true, Khamnayev has plausibly alleged an actual disability.
Khamnayev alternatively alleges that Schnitzer Steel regarded her as being disabled. (Compl. ¶ 28.) To establish “disability” under the “regarded as” prong of the ADA's definition, a plaintiff must adequately allege that she was “subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A); Nunies, 908 F.3d at 434. “In regarded-as cases, thus, a plaintiff must show that the employer knew that the employee had an actual impairment or perceived the employee to have an impairment, and that the impairment was not transitory or minor.” Equal Emp. Opportunity Comm'n v. BNSF Ry. Co., 902 F.3d 916, 923 (9th Cir. 2018). “Prohibited actions” include demotion and termination. 29 C.F.R. § 1630.2(1)(1).
“The ADA excludes individuals from regarded-as coverage if the impairment is both transitory (i.e., expected to last six months or less) and minor (which the statute does not define).” Nunies, 908 F.3d at 434 (citing 42 U.S.C. § 12102(3)(B)). Although Schnitzer Steel did not raise an argument about that exclusion, the court reviewed Khamnayev's complaint with it in mind. Khamnayev alleges that her impairment began in May 2019 and was expected to continue until at least December 2019-a duration of over six months. (Compl. ¶¶ 14, 17.) Therefore, it is not “transitory” and plausibly satisfies the “regarded as” prong.
To satisfy the “regarded as” prong, Khamnayev alleges that she provided medical notes about her herniated disc and corresponding 40-hour-per-week work restrictions to her supervisor in May 2019 and again in October 2019. (Compl. ¶¶ 14, 17). The October note stated that she “should remain on work restriction through 12/21/19 and will be revaluated in December 2019.” (Id. ¶ 17.) Less than a month after Khamnayev gave Schnitzer Steel the October note, her supervisor issued an ultimatum requiring her to choose between three positions that were demotions or termination. (Id. ¶ 17.) When Khamnayev refused the demotions, Schnitzer Steel terminated her employment. (Id.) Those allegations plausibly establish that Schnitzer Steel terminated Khamnayev because it knew of her impairment and regarded her as disabled- whether or not it perceived her hourly restrictions a “substantial limitation.”
Schnitzer Steel argues that Khamnayev's “regarded as” allegations “must fail [because] she would not be entitled to reasonable accommodation.” (Def.'s Mot. Dismiss at 7 (citing Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1233 (9th Cir. 2003)). Although that argument correctly states that an employer “is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the ‘regarded as' prong,” see 29 C.F.R. § 1630.2(o)(4) (emphasis added), Schnitzer Steel confuses the nature of Claims 1 and 2, which are based on alleged unlawful termination-not a failure to accommodate. Therefore, the court finds that Khamnayev has plausibly alleged “disability” under the ADA and Oregon law.
Turning to the second element, the “term ‘qualified,' with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position [that she] holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.” 42 U.S.C. § 12111(8); Gloeckner v. Kraft-Heinz Foods Co., LLC, Case No. 3:19-cv-01239, 2021 WL 922048, at *4 (D. Or. Mar. 9, 2021). The essential functions of a position are “the fundamental job duties of the employment position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1); OAR 839-006-0205(4).
Khamnayev alleges that she has “skills as a Certified Public Accountant,” performed her job “satisfactorily,” and regularly worked 40 or more hours a week, despite aggravation to her herniated disc. (Compl. ¶¶ 11, 15-16, 19, 22.) In the court's view, those allegations plausibly establish that she has the requisite skill, experience, and education to perform her position as Senior Tax Manager with or without reasonable accommodation.
Schnitzer Steel asserts that an ability to work more than 40 hours a week was an “essential function” of Khamnayev's position as a Senior Tax Manager and that, consequently, she “cannot establish that she is a ‘qualified individual' under the ADA.” (Def.'s Mot. Dismiss at 5, 11.) Khamnayev counters that it is too early to make a determination whether “mandatory overtime” was an essential function of her position. (Pl.'s Resp. at 21.) The court agrees. “Whether a job function is essential is a question of fact that is typically not suitable for resolution on a motion for summary judgment'”-let alone a motion to dismiss. See Kelley, 303 Or.App. at 41 (quoting Keith v. Cnty. of Oakland, 703 F.3d 918, 926 (6th Cir. 2013)). Thus, Khamnayev had adequately alleged that she is a “qualified individual” under the ADA.
Finally, with respect to the causation element, Schnitzer Steel argues that Khamnayev “was discharged because she refused the switch positions, not because she was disabled.” (Def.'s Reply at 11.) That argument conveniently ignores the fact that Schnitzer Steel pushed Khamnayev to transfer positions because she requested a temporary hourly accommodation to recover from her herniated disc impairment. (See Compl. ¶¶ 17-19, 21.) Khamnayev has alleged that, less than a month after she requested accommodation, her supervisor “requested a list of [her] projects with projected completion dates . . . in preparation for [her] termination.” (Id. ¶ 21.) She was then told that, if she did not accept demotions to the positions of Safety Manager, Crane Operator, or Inventory support, “her employment would be terminated on November 1, 2019.” Accepting those allegations as true, Khamnayev has plausibly alleged that Schnitzer Steel took adverse employment action against her because she was disabled or because it regarded her as disabled. Khamnayev has thus stated plausible claims for unlawful termination on the basis of disability, and Schnitzer Steel's motion to dismiss Claims 1 and 2 should be denied.
B. Failure to Provide Reasonable Accommodation (Claims 3 and 4)
In Claims 3 and 4, Khamnayev alleges that Schnitzer Steel violated the ADA and ORS § 659A.183 by failing to engage in an interactive process to provide her with reasonable accommodation for her “disability.” (Compl. ¶¶ 42-50.) Schnitzer Steel contends that those claims should be dismissed because Khamnayev has not adequately alleged “disability” and because her allegations establish that Schnitzer Steel engaged in an interactive process and offered her reasonable accommodation. (Def.'s Mot. Dismiss at 8; Def.'s Reply at 13.) For the reasons previously articulated, the court finds that Khamnayev has adequately alleged “disability” under the “actual” prong of the statutory definition-thus satisfying that threshold element of her failure to accommodate claims. The court turns to Schnitzer Steel's arguments regarding the reasonableness of its proposed accommodation.
The court addresses Claims 3 and 4 together because Oregon's antidiscrimination statutes are “construed to the extent possible in a manner that is consistent with any similar provision” of the ADA. ORS § 659A.139(1).
Under the ADA and Oregon law, discrimination on the basis of disability includes “not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability[.]” 42 U.S.C. § 12112(b)(5)(A); ORS § 659A.118. “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 accommodation that will enable the employee to perform her job duties.” Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 799 (9th Cir. 2017) (internal quotation and citation omitted); OAR 839-006-0206(5). That interactive process “requires communication and good-faith exploration of possible accommodations between the employers and individual employees, and neither side can delay or obstruct the process.” Humphrey v. Mem. Hosp. Ass'n, 239 F.3d 1128, 1137 (9th Cir. 2001) (citation omitted); OAR 839-006-0206(5)(a) (an interactive process is meaningful if it “readily identifies mutually agreeable reasonable accommodation”). An employer's liability is premised on the employer's breakdown in that process; however, an employer is not liable if it “can demonstrate that accommodation would impose an undue hardship on the operation of [its] business.” Humphrey, 239 F.3d at 1137; 42 U.S.C. § 12112(b)(5)(A).
Although the interactive process is mandatory, “there exists no stand-alone claim for failing to engage in the interactive process.” Snapp v. United Transp. Union, 889 F.3d 1088, 1095 (9th Cir. 2018). “Rather, discrimination results from denying an available and reasonable accommodation.” Id.; see also Dean v. Safeway, Inc., Case No. 3:12-cv-01875-PK, 2014 WL 6473543, at *16-17 (D. Or. Nov. 17, 2014) (“the duty to engage in an interactive process is part of the duty to accommodate”).
To sustain her failure to accommodate claims, Khamnayev alleges that, because of aggravation to her herniated disc, she requested a temporary medical accommodation to work no more than 40 hours in a given week. (Compl. ¶¶ 17, 19-22.) Schnitzer Steel refused that request and instead “offered to transfer Khamnayev from her position as a Senior Tax Manager to the positions of Safety Manager, Crane Operator, or Inventory Support at the Portland Recycling Department, all of which were demotions.” (Id.) Schnitzer Steel told Khamnayev that if she rejected the proposed transfers, she would be terminated. (Id.) When Khamnayev rejected the positions, Schnitzer Steel terminated her employment. (Id. ¶ 21-22.) In the court's view, those allegations plausibly establish that Schnitzer Steel failed to engage in a “good-faith exploration of possible accommodation.” See Humphrey, 239 F.3d at 1137; see also ORS § 659A.118(1)(b) (providing that reasonable accommodation can include “[j]ob restructuring, part-time or modified work schedules, or reassignment to a vacant position”)
Schnitzer Steel asserts that Khamnayev's pleadings establish that it did offer her a reasonable accommodation: transfer to alternative positions that did not require 40 hours or more of work a week. (Def.'s Mot. Dismiss at 8.) The court disagrees. Schnitzer Steel's assertion regarding the hourly requirements of the new positions lacks any evidentiary support and is not relevant on a motion to dismiss, where the court simply accepts as true the plaintiff's factual allegations. In contrast, Khamnayev alleges that the positions Schnitzer Steel offered her were demotions that were manifestly incomparable to her experience and skillset as a Senior Tax Manager. Taking those factual allegations as true, Khamnayev has plausibly alleged that Schnitzer Steel's proposed accommodation was not reasonable.
Schnitzer Steel also argues that it did “not have to provide a particular accommodation requested or preferred” by Khamnayev. (Def.'s Reply at 13 (quoting Wiederhold v. Sears, Roebuck & Co., 888 F.Supp.2d 1065, 1082) (D. Or. 2012). Again, the court is unpersuaded. Although Khamnayev was not necessarily entitled to her preferred accommodation, Schnitzer Steel still had a legal duty to meaningfully engage in a process that would “identify and implement appropriate reasonable accommodation.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). The duty to accommodate “is a ‘continuing' duty that is ‘not exhausted by one effort.'” Humphrey, 239 F.3d at 1137 (quoting McAlindin v. Cnty. of San Diego, 192 F.3d 1226, 1237 (9th Cir. 1999)). When Khamnayev declined the proposed demotions, Schnitzer Steel had an obligation to continue engaging with her to find other reasonable accommodation. Given its decision to instead terminate Khamnayev after nearly a decade of satisfactory employment, the complaint plausibly establishes that Schnitzer Steel failed to meaningfully engage in an interactive process to provide reasonable accommodation.
For those reasons, Schnitzer Steel's motion to dismiss Claims 3 and 4 should be denied.
C. FMLA / OFLA (Claims 5 and 6)
In Claim 5, Khamnayev asserts that Schnitzer Steel “discriminated and/or retaliated against [her] for engaging in the protected activity of taking leave under the FMLA.” (Compl. ¶¶ 59-66.) In Claim 6, she alleges that Schnitzer Steel discriminated and retaliated against her because “she applied for and took OFLA-protected family medical leave.” (Id. ¶¶ 67-72.) The court analyzes each as claims for “interference” under the FMLA and OFLA. Schnitzer Steel contends that Khamnayev has failed to state plausible claims for interference under both FMLA and OFLA. (Def.' Mot. Dismiss at 11-12.)
The FMLA provides two theories of recovery: (1) the “interference” theory, described in 29 U.S.C. § 2615(a)(1); and (2) the “retaliation or discrimination” theory, described in 29 U.S.C. § 2615(a)(2). See Munger v. Cascade Steel Rolling Mills, Inc., 544 F.Supp.3d 1078, 1083 (D. Or. 2021). When a plaintiff alleges retaliation for exercising her rights under the FMLA, the Ninth Circuit analyzes the claim as one of interference under § 2615(a)(1). Bachelder, 259 F.3d at 1124 (“By their plain meaning, the anti-retaliation and anti-discrimination provisions do not cover visiting negative consequences on an employee simply because she has used FMLA leave. Such action is, instead, covered under § 2615(a)(1), the provision governing ‘Interference [with the] Exercise of rights.'”). Because Khamnayev alleges that Schnitzer terminated her in retaliation for exercising her right to take protected leave, the court analyzes her claims under the “interference” theory. See Carter v. Fred Meyer Jewelers, Inc., Case No. 3:16-cv-00883-YY, 2019 WL 2744190, at *3 (D. Or. Apr. 10, 2019) (“Although often styled as ‘retaliation' claims, allegations that a plaintiff was fired for taking leave are analyzed as claims for ‘interference' with FLMA or OFLA rights.”)).
As a threshold matter, because OFLA claims are “construed to the extent possible in a manner that is consistent with any similar provision of the [FMLA],” the court analyzes Claims 5 and 6 together. See ORS § 659A.186(2); Sanders v. City of Newport, 657 F.3d 772, 783 (9th Cir. 2011). When necessary, the court differentiates between the two claims.
The FMLA, enacted in 1993, was “the culmination of several years of negotiations in Congress to achieve a balance that reflected the needs of both employees and their employers.” Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1119 (9th Cir. 2001). Congress crafted the Act to “balance the demands of the workplace with the needs of families” by entitling employees “to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition[.]” 29 U.S.C. § 2601(b). To that end, an eligible employee is entitled to twelve weeks of leave during any twelve-month period when a serious health condition prevents the employee from performing the functions of her job. 29 U.S.C. § 2612(a)(1)(D); ORS § 659A.159(1)(c) (providing twelve protected weeks of leave).
An employer may not “interfere with, restrain, or deny the exercise of” an employee's FMLA rights. 29 U.S.C. § 2615(a)(1). Such interference includes using the employee's “taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions[.]” 29 C.F.R. § 825.220(c) (emphasis added). To state a FMLA interference claim, therefore, Khamnayev must offer factual allegations plausibly establishing that (1) she took protected leave; (2) she was subject to an adverse employment action; and (3) taking the leave was a ‘negative factor' in the adverse employment action. Rogers v. Oregon Trail Elec. Consumers Co-op., Inc., Case No. 3:10-cv-1337-AC, 2012 WL 1635127, at *21 (D. Or. May 8, 2012) (citing Bachelder, 259 F.3d at 1125).
The OFLA does not explicitly provide a cause of action for “interference.” See ORS § 659A.183. “A majority of decisions in the District of Oregon, however, have concluded that the OFLA included a cause of action for interference.” Stillwell v. Old Dominions Freight Line, Inc., Case No. 3:19-cv-1789-SI, 2021 WL 3056375, at *6 (D. Or. July 20, 2021) (collecting cases). In line with federal authority, those cases apply a “negative factor” analysis for causation. Id. at *7 (“An employer ‘cannot use the taking of FMLA as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions.'” (quoting Bachelder, 259 F.3d at 1122 and 29 C.F.R. § 825.220(c))); see also Rogers, 2012 WL 1635127, at *21. Accordingly, the court applies the FMLA's “negative factor” analysis to Khamnayev's OFLA claim as well.
The OFLA provides: “It is an unlawful practice for a covered employer to: (1) Deny family leave to which an eligible employee is entitled under ORS § 659A.150 to 659A.186; or (2) Retaliate or in any way discriminate against an individual with respect to hire or tenure or any other term or condition of employment because the individual has inquired about the provisions of ORS § 659A.150 to 659A.186, submitted a request for family leave, or invoked any provision of ORS § 659A.150 to 659A.186.” ORS § 659A.183.
The parties acknowledge that the same legal standards apply to Khamnayev's FMLA and OFLA claims. (Def.'s Mot. Dismiss at 12; Pl.'s Resp. at 27-28.)
Returning to Claims 5 and 6, Schnitzer Steel does not contest that Khamnayev took protected leave from September 25 to October 6, 2019, nor that it terminated her employment on November 1, 2019. (Def.'s Mot. Dismiss at 11.) Instead, it argues that Khamnayev cannot establish causation because “the employment decision had nothing to do with her FMLA leave and everything to do with her refusal to accept another job with Schnitzer Steel that would accommodate her request to work no more than 40 hours a week.” (Id.) Schnitzer Steel also asserts that Khamnayev has not presented “evidence” tending to show that her termination was caused by her taking protected leave. (Id. at 11.) Neither argument is well-taken.
Despite that concession, Schnitzer argues that Khamnayev's OFLA claims fails because “she has not alleged her Complaint that she took protected leave.” (Def.'s Reply at 12.) The court's review of the complaint, however, reflects that Khamnayev explicitly alleged that “she applied for and took OFLA-protected family medical leave.” (Compl. ¶ 69.)
First, Schnitzer Steel misinterprets the standard for causation in FMLA and OFLA interference claims. Relying on Washington v. Fort James Operating Co., 110 F.Supp.2d 1325 (D. Or. 2000), Schnitzer Steel invokes the McDonnell Douglas-style shifting burden-of-production analysis common in ADA cases at summary judgment to assert that, after a prima facia FMLA claim has been established, “the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the plaintiff's termination.” (Def.'s Mot. Dismiss at 10 (quoting Washington, 110 F.Supp.2d at 1330.)) Schnitzer Steel argues that Khamnayev's complaint fails that standard because she offers no allegations indicating that “her supervisor expressed a desire to terminate her employment for any reason.” (Def.'s Reply at 15-16.) Just one year after the Washington decision, however, the Ninth Circuit held that the McDonnell Douglas framework is “inapplicable” to FMLA claims. Bachelder, 259 F.3d at 1125; Xin Liu v. Amway Corp., 347 F.3d 1125, 1136 (9th Cir. 2003). Consequently, Schnitzer Steel's proffered nondiscriminatory reason for Khamnayev's termination is not relevant to the present analysis.
Second, Schnitzer Steel's evidence argument misconstrues the procedural posture of this action. Evidence is not required on a motion to dismiss under Rule 12(b)(6); instead, the court “accept[s] the complaint's well-pleaded factual allegations as true and construes all inferences in favor of the plaintiff.” Mashiri, 845 F.3d at 988. Under that standard, Khamnayev need only offer factual allegations sufficient to plausibly establish that her taking of protected leave from September 25 to October 6 was a “negative factor” in Schnitzer Steel's decision to terminate her. See Stillwell, 2021 WL 3056375, at *7 (“The interference test asks simply whether the taking of permissible leave was a negative factor, not the only factor.”).
Khamnayev has alleged that she was terminated on November 1, 2019-less than a month after taking protected leave. In the court's view, that proximity, coupled with allegations that she had requested upcoming vacation time and accommodation to recover from her herniated disc impairment, plausibly establish that Khamnayev's taking of protected leave was a negative factor in Schnitzer Steel's decision to terminate her employment. See Xin Liu, 347 F.3d at 1137 (“Finally, the proximity in time between the leave and her termination also provides supporting evidence of a connection between the two events.”). Schnitzer Steel's motion to dismiss Claims 5 and 6 should therefore be denied.
CONCLUSION
As explained above, defendant Schnitzer Steel's motion to dismiss (ECF No. 7) should be DENIED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.