Opinion
Civil No. 03-205-MO.
October 12, 2004
AMENDED ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Both sides to this case filed motions for summary judgment on plaintiff's sole claim for relief: workers' compensation discrimination and retaliation in violation of ORS § 659.410, now renumbered as ORS § 659A.040.
Plaintiff's wrongful discharge claim was dismissed by stipulation on July 19, 2004.
Plaintiff seeks summary under the theory of issue preclusion as the Workers' Compensation Board made findings that plaintiff was not terminated for reasons of performance. Defendant seeks summary judgment on its theory that plaintiff was fired for reasons of performance, unrelated to his workers' compensation claim. For the reasons that follow, plaintiff's motion for summary judgment is granted while defendants' is denied.
Plaintiff withdrew its motion for summary judgment on its claim preclusion claim in its reply brief of July 1, 2004.
In addition, both parties have filed motions to strike. The court denies these motions to strike as moot.
Facts
Plaintiff Allen L. Munsell was hired by defendant Hampton on or about July 21, 1988. Plaintiff worked as a saw filer. In 1996, plaintiff injured his left knee and subsequently underwent two knee surgeries. Defendant made some, but not all, needed modifications to plaintiff's work area. As plaintiff's injury continued to worsen, he began receiving warnings for poor performance before being terminated on May 31, 2001.
Standard of Review
A movant is entitled to summary judgment if the non-moving party, who bears the burden of persuasion, fails to designate "specific facts showing that there is a genuine issue for trial."Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, in order to preclude a grant of summary judgment, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial."Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)).
I. Plaintiff's Motion for Summary Judgment
Plaintiff argues he is entitled to summary judgment if this court applies the doctrine of issue preclusion to his claim of workers' compensation discrimination. We apply Oregon law to determine the application of issue preclusion, also known as collateral estoppel. See Bugna v. McArthur (In re Bugna), 33 F.3d 1054, 1057 (9th Cir. 1994) ("In determining the collateral estoppel effect of a state court judgment, federal courts must, as a matter of full faith and credit, apply that state's law of collateral estoppel"). The doctrine of issue preclusion can apply to workers' compensation proceedings. See SAIF Corp. v. Myers, 82 P.3d 638, 640 (Or.Ct.App. 2003).
Issue preclusion arises in a subsequent proceeding when an issue of ultimate fact has been determined by a prior proceeding.See Nelson v. Emerald People's Util. Dist., 862 P.2d 1293, 1296 (Or. 1994). Plaintiff's motion for summary judgment seeks to preclude relitigation of whether defendant was justified in terminating plaintiff's employment for performance reasons. Here, there was a final decision by the Order on Review, WCB Case No. 01-09926, that found defendant was not terminated for a violation of work rules or for producing a poor work product.
In Oregon, issue preclusion is codified at ORS § 43.130 which states in part:
the judgment, decree or order is, in respect to the matter directly determined, conclusive between the parties, their representatives and their successors in interest by title subsequent to the commencement of the action, suit or proceeding, litigating the same thing, under the same title and in the same capacity.
If one tribunal has decided an issue, the issue may be precluded from relitigation if five requirements are met: (1) the issue in the two proceedings is identical; (2) the issue was actually litigated and was essential to a final decision on the merits; (3) the party sought to be precluded had a full and fair opportunity to be heard on the issue; (4) the party sought to be precluded was a party or was in privity with a party in the prior proceeding; and (5) the prior proceeding was the type of proceeding to which a court can give preclusive effect. Id. at 1296-97.
The issue in the earlier workers compensation hearing was whether plaintiff was dismissed for cause. That is the exact issue on which plaintiff seeks issue preclusion; consequently, the issue in these two proceedings is identical. The performance issue was litigated and essential to a final decision on the merits in the earlier litigation. (Affidavit of Daniel Synder, Ex. 1, Opinion Order of David Lipton, ALJ, April 2, 2002). The ALJ found: "There is no evidence to dispute claimant's testimony that employer relied on a mistaken set of facts in blaming claimant for a problem that claimant had neither created no perpetuated." (Id., at 3). The ALJ found that plaintiff was not properly terminated.
Defendant disputes the third requirement — that the party sought to be precluded had a full and fair opportunity to be heard on the issue. The Supplemental Affidavit of Dan Snyder makes clear in his correspondence to opposing counsel prior to the Workers' Compensation hearing that the issue he intended to litigate was whether plaintiff was terminated for cause. (Supp. Affidavit of Dan Synder, ¶¶ 7-10, Ex. 8 9). At the workers compensation hearing, plaintiff called witnesses from Tillamook Lumber who testified that they worked with plaintiff who was an able saw filer. (Id. at ¶ 10). Each of these witnesses was available for cross-examination. (Id.) In addition, defendants were free to call their own witnesses but for whatever reason, did not. (Id. at ¶ 9).
The fourth element, privity between the parties, is also satisfied. While defendants were represented by insurance counsel, the insurance carrier shared defendants' interest in proving that defendant was terminated for cause to end any future payment of benefits. In fact, upon appeal of "In the Matter of Compensation of Allen L Munsell," (the caption before the Workers' Compensation Board) the caption before the Oregon Court of Appeals read: "Liberty Northwest Insurance Corporation and Tillamook Lumber Co., Petitioners v. Allen L. Munsell, respondent." Thus, defendants and its insurers interests were in privity.
Fifth and finally, the Oregon Court of Appeals has found that workers' compensation hearings can be the basis for issue preclusion. See SAIF Corp. v. Myers, 82 P.3d 638, 640 (Or.Ct.App. 2003). As a result, the court finds that issue preclusion applies as a matter of law and that plaintiff has prevailed on the issue of whether he was properly terminated for cause in an early proceeding. Therefore, due to issue preclusion, plaintiff prevails on the issue of whether he was properly terminated for cause in this proceeding.
II. Defendant's Motion for Summary Judgment
Defendant's motion for summary judgment seeks nearly the opposite of what plaintiff sought: a determination by this court that plaintiff was terminated for performance issues and not in retaliation for filing a workers' compensation claim. The court will keep its analysis brief. First, the result defendant seeks is precluded, at least in part, by this court's holding above on plaintiff's motion for summary judgment. Second, there are disputed issues of material fact on whether plaintiff's termination was only for performance reasons. Therefore, summary judgment is denied.
To establish a prima facie case of workers' compensation discrimination under ORS § 659.410(1), a plaintiff must show: (1) he invoked the workers' compensation system after he was injured; (2) he was discriminated against in tenure, terms or conditions of employment; and (3) Hampton discriminated against him because he invoked the workers' compensation system. Hardie v. Legacy Health System, 6 P.3d 531, 536 (Or.Ct.App. 2000), rev. denied, 36 P.3d 973 (Or. 2001), superseded by statute on other grounds as stated in, Lansford v. Georgetown Manor, Inc., 84 P.3d 1105 (Or.Ct.App. 2004).
Plaintiff establishes that he invoked the workers' compensation system. In support of the second element, plaintiff alleges that two managers, Denny Derum and Mike Waddell, treated plaintiff differently than other workers upon learning that plaintiff's knee injuries would cause him to need worksite modifications. (Schunker Declar., ¶¶ 4, 7 Allen Declar. ¶ 7). Plaintiff's supervisor, Mike Waddell, when informed of plaintiff's requested workplace modifications reportedly said, "This is bullshit, but let's try it since it will not cost the company any money." (Id.) As plaintiff's knee deteriorated, he began receiving discipline for performance reasons while other similarly situated employees were not. (Concise Statement in Opp. ¶¶ 18, 32). Plaintiff also at the receiving end of degrading comments from his co-workers and a supervisor, Denny Derum, sometimes over the company intercom, regarding his knee injury and need for workplace modifications. (Plaintiff's Depo. 86:18-23 89:9-12).
There is a disparity of issues between whether plaintiff was properly terminated and whether he was terminated for invoking the workers' compensation process. That is a matter for trial. At the summary judgment stage, however, plaintiff has presented facts demonstrating the possibility of pretext and a causal link between discrimination and his invocation of workers' compensation benefits. Plaintiff demonstrates material issues of fact that defendant's improper motive was a substantial factor in their decision to terminate plaintiff. As a result, defendants' motion for summary judgment is DENIED.
III. Plaintiff's Motion to Strike
Plaintiff's seeks to strike exhibits G M attached to the affidavit of Todd A. Hanchett in Support of Defendant's Motion for Summary Judgment, and sentences within the Declaration of Dennis Durham. The court finds that the exhibits are of no moment to either parties' motion for summary judgment and, therefore, denies the motion to strike as moot.
IV. Defendant's Motion to Strike
Because statements plaintiff seeks to strike are not relied upon in this court's ruling on the motions for summary judgment, defendant's motion to strike is denied as moot.
CONCLUSION
Based upon issue preclusion, plaintiff's motion for summary judgment on the issue of whether plaintiff was terminated for cause is GRANTED (Doc. #54). Defendants' motion for summary, judgment is, however, DENIED (#48) as material issues of fact exist as to whether plaintiff's termination was a violation of ORS § 659A.040. Both plaintiff's (#66) and defendants' (#85) motion to strike are DENIED as moot.
IT IS SO ORDERED.