Opinion
Civil No. 01-47-AS
February 7, 2002
ORDER
Magistrate Donald C. Ashmanskas filed his Findings and Recommendation (#52) on December 7, 2001 (the "FR") and referred it to me on January 22, 2002. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). Both plaintiff and defendant have filed objections to the FR.
When either party objects to any portion of the Magistrate's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate's report. See 28 U.S.C. § 636(b)(1)(C); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). Having given a de novo review of the issues raised in plaintiff's and defendant's objections to the FR, I find that the Magistrate Ashmanskas erred in not granting full summary judgment in favor of defendant.
In the FR, Magistrate Ashmanskas recommends that defendant's motion for summary judgment be granted with regard to plaintiff's First, Second, Third, Fifth and Sixth Claims for Relief and denied with regard to plaintiff's Fourth Claim for Relief. In that claim, plaintiff alleges that she suffered a discriminatory discharge under the FMLA. However, she admits that she was not actually terminated and Magistrate Ashmanskas properly found that she was not constructively terminated.
Thus, there appears to be no basis for plaintiff's Fourth Claim for Relief to survive summary judgment. Even if the claim can be construed as a retaliation claim, based on defendant's plan to transfer plaintiff from Perkins Coie to Wassau or Bullivant Houser upon her belated return from medical leave, it still fails. Plaintiff and Perkins Coie had made it clear that she was not to return to work under Frank Limbaugh, who was employed at the Perkins Coie work site. As such, if defendant desired to reinstate plaintiff, it had no option but to look for suitable substitute positions elsewhere. The position at the Bullivant site had comparable pay, duties and status in comparison to the job at the Perkins Coie site. Nonetheless, plaintiff objected to that position out of hand, apparently due to plaintiff's belief that she would find it to be an unfriendly work environment. Plaintiff then specifically requested that she be transferred to the Wausau site — a request with which defendant readily complied.
Moreover, even though that position was primarily clerical, it appears to be on par with the position to which plaintiff had been demoted near the end of her days at Perkins Coie. Under these circumstances, I fail to see how plaintiff suffered an adverse employment action by defendant's efforts to place her in one of the only two possible workplaces in the Portland area. Summary judgment is appropriate against plaintiff's Fourth Claim for Relief.
Accordingly, I ADOPT the FR (#52) of Magistrate Ashmanskas, with the exception of his recommendation that summary judgment not be granted with regard to plaintiff's Fourth Claim for Relief. Defendant's motion for summary judgment (#28) is granted in full and this case is dismissed. Plaintiff's motion for summary judgment (#23) is denied. Defendant's motion to strike affidavits (#46) is denied as moot.
IT IS SO ORDERED.