Opinion
No. CV-03-181-HU.
August 9, 2004
Benjamin Rosenthal, Portland, Oregon, Attorney for plaintiff.
Alan M. Lee, Michael McClory, Bullard Smith Jernstedt Wilson, Portland, Oregon, Attorney for defendant.
OPINION AND ORDER
Plaintiff Jason LaFord brings this action against his former employer, Kinko's, Inc., in which he asserts five claims for relief: retaliation for filing a Workers' Compensation claim, in violation of Or. Rev. Stat. § 659A.040; failure to reinstate after an attempted return to work from Workers' Compensation and medical leave in violation of Or. Rev. Stat. § 659A.043(1)and the Oregon Family Leave Act, Or. Rev. Stat. § 6590A.183; interference and retaliation in violation of the federal Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.; and common-law wrongful termination. LaFord has withdrawn the third claim for relief under the federal Family and Medical Leave Act because he acknowledges that he was not employed for the requisite 12 months.
Both parties move for summary judgment on remaining claims one, two, four and five. The court heard oral argument on the motions June 4, 2004.
Factual Background
Jason LaFord was employed by Kinko's from September 7, 2000 through August 15, 2001 as a Commercial Business Representative (CBR) at its Gresham, Oregon branch. LaFord's direct supervisor was Brian Goodwin. The assistant branch manager, who also supervised LaFord, was Brianne Feather. LaFord's work schedule was Monday through Friday, 8:00 a.m. to 5:00 p.m.
On December 29, 2000, LaFord received the Kinko's 2001 Co-Worker Handbook (the Handbook) and acknowledged receipt by his signature. The Handbook states that if an employee is absent for three or more consecutively scheduled days or shifts without calling a supervisor, the employee will be considered to have abandoned the job and can be terminated. Affidavit of Benjamin Rosenthal, Exhibit A. The Handbook defines absence as
any failure on the part of the co-worker to report to work on the date scheduled to work. This definition includes, but is not limited to, lost time due to illness, injury, personal business, or other reasons for which the company is not responsible. Vacation, jury duty, and approved leaves of absence, including leaves of absence pursuant to federal or state law, are not counted as absences.Id.
On January 15, 2001, LaFord reported to Goodwin that he had been injured while working on January 12. His Workers' Compensation claim for abdominal wall strain was accepted on March 20, 2001. On March 26, 2001, LaFord's physician released him to return to work without restrictions.
On February 8, 2001, LaFord received a performance appraisal with an overall rating of three on a five-point scale ("Meets Standard"). On April 3 and 4, 2001, Kinko's congratulated LaFord for his efforts on an account.
On June 6, 2001, LaFord asked for time off on June 12 and 13 to perform as an extra in a movie. Goodwin has testified that he told LaFord to formalize the request with Feather, who was making out schedules. Deposition of Brian Goodwin, attached to Affidavit of Benjamin Rosenthal, p. 63. On the same day, LaFord and Feather had a disagreement after Feather asked LaFord to assist at the front desk rather than proceed immediately with sales calls LaFord had planned. That afternoon, LaFord telephoned his physician and reported having anxiety that he attributed to having been robbed the preceding evening.
Goodwin normally prepared schedules, although Feather occasionally did so as well. Goodwin deposition, p. 63. Schedules were prepared in advance and comprised two-week periods. Affidavit of Alan Lee, Exhibit B, p. 3.
LaFord did not report for work on June 12 and 13. On June 20, 2001, LaFord asked Goodwin for permission to take off work on June 22 because he was moving. The parties dispute whether LaFord received permission to be absent from work on June 22.
On Thursday, June 21, LaFord received a Performance Counseling Statement from Goodwin, in which he was reprimanded for failure to make his request for time off on June 12 and 13 to Feather. According to the Statement, "Rather than following through with this requirement, Jason chose to leave a voicemail message in Brianne's mailbox stating that I had approved the requested days off and he would not be present in the branch." Lee Affidavit, Exhibit 10, p. 84. LaFord had another disagreement with Feather on that day, in which Feather raised her voice at LaFord in front of the customers. LaFord remained at the office for some period, then left to make scheduled calls on customers.
LaFord made sales calls to three businesses, but states that on the way back to the office he suffered an anxiety attack. He pulled over to the side of the road and experienced what he thought was a heart attack, being unable to breathe and feeling flushed. LaFord believed the anxiety attack was brought on by the altercation with Feather. He called Feather, telling her he needed to take the rest of the day off to get medical attention.
LaFord left his car by the side of the road, walked to Kinko's, got his briefcase, and clocked out at about 2:40 p.m. He walked to Hertz Rent-A-Car, where he rented a car, and then drove home. From home, he called his physician, Dr. Gillanders. LaFord told Dr. Gillanders he had been under a lot of stress, from the robbery, the terminal illness of his father-in-law, and having his car vandalized that day. Dr. Gillanders saw LaFord either the next day or on Monday, June 25.
Apparently, LaFord thought, mistakenly, that there was something wrong with the brakes on his car.
However, at his deposition, LaFord was unable to recall whether his car had been vandalized that day. LaFord Deposition, Lee Affidavit, Exhibit A, p. 100.
After the phone conversation with Gillanders, LaFord called Kinko's and told Feather that as a result of their altercation, he had experienced some sort of emotional breakdown and needed medical attention. He sent an e-mail and a fax to Goodwin the next morning, explaining that he was not returning to work on June 22 because of stress. In the fax to Goodwin, LaFord requested that his days off be regarded as sick days. On Sunday, June 24, 2001, LaFord sent an e-mail to Goodwin at Kinko's, as follows:
After meeting with my doctor, he suggested that I have anxiety issues and have been overwhelmed. He gave me a prescription, told me to try to relax and to check in with him on Monday. The medication seems to work great at night, unfortunately not as good while trying to move boxes in a somewhat sedated state. I have not been able to get the rest he spoke of. I want to see him first thing tomorrow for the follow up and another possible prescription that allows for focus and awareness/work duties with the public. Obviously missing work will reflect a loss in wages. Do I have option for sick days or if the doctor suggests I take a week off will our insurance assist me?
Rosenthal Affidavit, Exhibit 14. Goodwin responded by asking LaFord to contact Shay Restivo in the Human Resources Department.
LaFord's physicians, Doctors Gillanders, Talbot and Agen, provided him with seven or more notes excusing him from work for short periods of time between June 21, 2001 and August 3, 2001. According to his deposition testimony, LaFord faxed each of these notes to Goodwin. LaFord Deposition, p. 118, 119. Kinko's notified LaFord by letter dated July 13, 2001, that he had been conditionally approved for leave under the Oregon Family Leave Act. Initially, his leave was of indefinite duration; later, Kinko's received notice from one of LaFord's doctors that LaFord's leave would expire August 3. Goodwin Deposition, p. 120-21, 125, 142. LaFord filed a claim for Workers' Compensation benefits.
LaFord was in an automobile accident on Friday, July 12 and sustained a mild whiplash. Cynthia Talbot, M.D., wrote a note excusing him from work from July 16 to July 18, and another note excusing him from work from July 20 to August 3. Dr. Gillanders wrote a note excusing him from work from July 17 to July 20.
LaFord contended that he had an occupational stressrelated condition. The claim was denied on November 28, 2001. While the denial was on appeal, in July 2003, LaFord and Kinko's settled.
According to an affidavit from Goodwin, LaFord was the only CBR at the Gresham branch of Kinko's. Goodwin states that because he did not know when LaFord would return to his duties, and because he was concerned about the absence of a CBR at the Gresham branch, he hired another CBR, Amy Sheppard, to perform those duties in LaFord's absence. Sheppard began working on July 31, 2001. Goodwin states that he expected LaFord to return to work, and intended to have two CBRs in Gresham at that time. He did not expect any conflict over accounts between LaFord and Sheppard because both were paid on an hourly, rather than a commission, basis.
The last day of LaFord's excused medical leave was Friday, August 3, 2001. LaFord alleges in his complaint that his doctor had released him to resume his regular work duties on Monday, August 6, 2001. Goodwin confirmed that Kinko's had received a form releasing LaFord to work after August 3. Goodwin deposition, p. 123. According to Goodwin's deposition testimony, a schedule was posted in the branch office showing LaFord working on August 6, although Kinko's did not contact Laford to confirm that he would be returning to work that date. Goodwin deposition, p. 122-23. On August 3, LaFord drove by Kinko's and saw someone sitting at his desk. He did not go inside the office or contact anyone at Kinko's; instead, he applied for unemployment benefits.
On August 9, 2001, LaFord wrote a letter to Kinko's:
My primary doctor recently indicated that I was to be off duty at Kinko's until 8/3/01 thus expressing my ability to return to my specific work duties as done prior to 7/22/01. I am able to return, so again please let me know when I can return. . . . I have tried my best to get answers as to my job status and then without being given any notice both verbal or written, I have come to find out from one of our branch co-workers that my position has been replaced.
Rosenthal Affidavit, Exhibit 12, p. 1, 2.
In a letter dated August 10, Goodwin wrote to LaFord as follows:
On July 13, 2001 you submitted a request for a medical leave of absence. Your request for a leave of absence was officially approved and began on June 22, 2001. According to our records, your leave of absence expired on August 3, 2001, and you have not returned to work. It is imperative that you communicate directly with me to update me on your situation, and advise me of your intentions. Please contact me by August 15, 2001, or in accordance with Kinko's Policies and Procedures, we will consider your lack of response to be a voluntary resignation from your employment. . . .Id., Exhibit 13, p. 1. On August 13, LaFord called Kinko's to say he wished to return to work. He received a return telephone call asking him to come to the branch office for a meeting on August 15. LaFord subsequently telephoned the branch office to ask for a copy of his personnel file before the meeting. Id., Exhibit 14. At the August 15, 2001 meeting, Kinko's terminated LaFord's employment.
Standards
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
A genuine dispute arises "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."State of California v. Campbell, 319 F.3d 1161, 1166 (9th Cir. 2003). Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ruling on a motion for summary judgment. Id.
On a motion for summary judgment, the court views the evidence in the light most favorable to the non-movant and draws all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001).
Discussion
Claim One — Workers' Compensation retaliation claim
LaFord contends that Kinko's violated Or. Rev. Stat. § 659A.040 by refusing to reinstate him after a workers' compensation leave and terminating his employment. Section 659.040 prohibits an employer from discriminating against an employee "because the worker has applied for benefits or invoked or utilized" the workers' compensation laws.
To make out a prima facie case of retaliatory discharge in violation of § 659A.040, plaintiff must prove that 1) he invoked the workers' compensation system; 2) he was discriminated against in the tenure, terms or conditions of employment, and 3) the employer discriminated against the plaintiff because he invoked the workers' compensation system. Stanich v. Precision Body and Paint, Inc., 151 Or. App. 446, 457 (1997).
The parties do not dispute that the first of these elements is satisfied. With respect to the second element, Kinko's has submitted evidence that its absenteeism policy has been uniformly applied to all employees and LaFord has not proffered any evidence to the contrary.
Kinko's asserts that LaFord has failed to make the required showing on the third element, motive. To make out this third element, plaintiff must show that the protected activity motivated the employer. See, e.g., Estes v. Lewis Clark College, 152 Or. App. 372, 381 (1998) (employee's protected activity must have been a "substantial factor" or a factor that "made a difference in the discharge decision").
An employer is free to discharge an employee for cause, notwithstanding the existence of a Workers' Compensation claim, so long as the discharge is not motivated by the claim. Hardie v. Legacy Health System, 167 Or. App. 425, 433 (2000). Kinko's asserts that it granted LaFord's leave requests in full, and terminated him only after he violated Kinko's absenteeism policy by not returning to work or contacting Kinko's for more than three days after his medical leave had expired.
LaFord has provided no direct evidence that Kinko's terminated him because he invoked the Workers' Compensation system. The evidence shows that LaFord had used the Workers' Compensation system six months earlier, in January 2001, without adverse consequences, and there is no indication in the record that Kinko's ever resisted LaFord's request for medical leave between June 22 and August 3. LaFord points to some indirect evidence from which he argues a discriminatory motive can be inferred: the fact that Kinko's had advertised for, and hired, a replacement CBR while LaFord was on leave, and the temporal proximity between his medical leave and his termination. However, this evidence is insufficient to create an inference that LaFord was terminated because he invoked the Workers' Compensation system.
Kinko's has proffered a nondiscriminatory explanation for the hiring of Amy Shepard as a second CBR, pointing out that LaFord's medical leaves were extended several times, and his absence left Kinko's without a CBR to fulfill LaFord's duties. LaFord has not offered evidence tending to disprove this explanation. Further, mere temporal proximity between the filing of a Workers' Compensation claim and termination, without more, is insufficient to satisfy the causation element. Ledesma v. Freightliner Corp., 97 Or. App. 379, 383 (1989). Kinko's has offered a nondiscriminatory explanation for the temporal proximity as well — LaFord's failure to contact Kinko's for six days after his leave expired.
LaFord does not deny that the notes provided by his physicians authorized his leave to August 3, 2001, and not beyond. There is ample evidence in the record that LaFord was aware that his leave extended only through Friday, August 3, 2001. LaFord makes no contention and offers no evidence that he sought to extend his medical leave beyond August 3. LaFord does not deny that it was not until Thursday, August 9, 2001, that he made any effort to contact Kinko's about returning to work, and even then that he did so by letter rather than a phone call, an e-mail, or a fax. LaFord does not deny that his normal work schedule was Monday through Friday, so that Kinko's would have expected him to return to work on Monday, August 6, 2001.
LaFord's explanation for his failure either to contact his supervisor or appear for work on Monday, August 6, 2001 is that Kinko's never informed him that his leave had ended, and that he thought he had to wait for Kinko's to invite him back. However, there is no indication in the record that LaFord did not know when his leave ended, so that he would necessarily be dependent on Kinko's to tell him. In fact, LaFord testified at his deposition that he considered "the formal return to work certification to be a document that indicated a return to work after August 3, which was the medical extension release," and that his doctor told him the document releasing him to work after August 3 would be sufficient "as a document indicating a return to work." LaFord Deposition, p. 157, 159, 196-97; Plaintiff's Concise Statement of Material Facts ¶ 7.
LaFord testified at his deposition that he believed the Handbook stated that he needed to be invited back to the job after a medical leave. However, there is no such provision in the Handbook. LaFord also testified that Goodwin, in a telephone conversation sometime during LaFord's medical leave, indicated to LaFord that he should not return to work until he had been told to return. LaFord Deposition, p. 156. But this evidence, at most, suggests that LaFord was given conflicting information, or that he was confused, and it is undermined by LaFord's own conduct in applying for unemployment benefits on August 3. The factual question of whether LaFord thought he should wait for an invitation from Kinko's does not establish that Kinko's motive for terminating him was his invocation of the Workers' Compensation system.
As Kinko's points out, LaFord's physician, at LaFord's request, had recommended that Kinko's not call LaFord while he was on leave. See Rosenthal Affidavit, Exhibit 18 (LaFord deposition, p. 142); id. Exhibit 3C p. 1).
LaFord also argues that he was not in violation of the absenteeism policy because no one at Kinko's put him on the schedule to work August 6 or thereafter, and therefore he was not absent for three or more consecutively scheduled days or shifts. This argument is unavailing. LaFord never went inside the branch office or called to find out whether he was on the schedule to work beginning August 6. Goodwin testified that LaFord was on the schedule to work August 6. There is no evidence to suggest that LaFord believed, or was told, that when his leave was over he would be working days or hours other than his previous Monday through Friday, 8:00-5:00 schedule.
LaFord has failed to raise questions of fact sufficient to withstand Kinko's motion for summary judgment, and has failed to make a showing sufficient to entitle him to summary judgment on his Workers' Compensation retaliation claim. Kinko's motion for summary judgment on this claim is granted.
Claim Two — Workers' Compensation failure to reinstate
Under OAR 839-006-0131(1),
An injured worker meeting the requirements for reinstatement under ORS 659A.043 loses the right to reinstatement to the worker's former position when any of the following occurs:
* * *
(e) The worker fails to make demand for reinstatement to the former position within seven days of receiving certified notice from the insurer or self-insured employer that the worker's attending physician has released the worker to the former position, as provided in OAR 839-006-0130(5)(d);
* * *
(g) The worker is discharged for bona fide reasons not connected with the injury and for which others are or would be discharged; or (h) The worker clearly and unequivocally abandons employment with the employer.
Kinko's argues that LaFord lost his reinstatement rights based on subsections (g) and (h), because the evidence shows that LaFord was discharged for bona fide reasons not connected with the injury — failure to report to work or call his supervisor for more than three days after his medical leave expired, which under the Handbook is construed as an abandonment of employment.
LaFord argues that Kinko's never told him that if he failed to show up on August 6, he would be considered in violation of the absentee policy, and that no one told him until August 10, 2001 that his leave status had lapsed. But LaFord does not deny that the Handbook, the receipt of which he had acknowledged, specifically put him on notice of the absentee policy. Nor, as discussed above, is there any indication that LaFord was unaware that his leave expired on August 3, or that he did not know he was expected to return to work on Monday, August 6.
LaFord also asserts that his reinstatement rights were violated because he was "never offered a position to return to." Plaintiff's Memorandum in Opposition, p. 6. The basis for this argument is that Shepard had already filled LaFord's position, so that LaFord was "set up" by Kinko's failure to inform him that he could return to work.
This argument is unconvincing for several reasons. First, Ford applied for unemployment benefits on Friday, August 3. This indicates that LaFord made the decision to abandon his employment as soon as he saw someone else sitting at his desk — without troubling himself to go inside, attempting to report for work, or finding out from Kinko's the status of the person sitting at his desk. Second, Kinko's was entitled to hire someone to fulfill LaFord's job duties during his absence, and there is no evidence to suggest that Kinko's did not intend to reinstate LaFord if he returned at the end of his medical leave. Third, LaFord relinquished his right to reinstatement either on Friday, August 3, when he applied for unemployment benefits, or on Monday, August 6, when he failed to report for work. It was not until August 9 that LaFord made any effort to contact Kinko's.
Under the circumstances of this case it was not incumbent upon Kinko's to assume responsibility for ensuring that LaFord returned to work, or to offer him a position. The logical extension of LaFord's argument is that, despite a definite return-to-work date known to himself and to Kinko's, he could remain on leave indefinitely, with Kinko's being obligated to chase him down and inquire about his intentions. The law does not impose this requirement on employers.
LaFord argues that he was not required to notify Kinko's of his availability for reinstatement to his position as a CBR because Kinko's had already filled it with Shepard, so that "reclaiming" his job would have been futile. He relies on Wilson v. Tarr, Inc., 2000 WL 1292590 (D. Or. 2000). In Wilson, the employer hired a temporary worker to substitute for plaintiff while she was on maternity leave. Plaintiff was scheduled to return from her leave on July 3, 1998. On June 9, 1998, the employer told plaintiff that the replacement had been given plaintiff's job. The employer asked plaintiff if she intended to return to work and she said yes. The employer then offered plaintiff two other positions, both of which she rejected. On summary judgment, the employer argued that plaintiff was not entitled to be reinstated in her original position because she had not physically returned to the plant to "claim" that position. The court rejected the argument, saying, "Defendants cite no cases supporting their argument that a plaintiff whose position has been terminated while on leave must still physically show up at the workplace to claim her right to the position." 2000 WL at *11.
The Wilson case is readily distinguishable on its facts. First, Wilson was an OFLA claim, not a Workers' Compensation reinstatement claim. Second, LaFord was never told that his position had been filled by another employee. And finally, unlikeWilson, LaFord was not offered alternate positions which he found unacceptable.
Although LaFord saw someone sitting at his desk on August 3, LaFord did not inquire of Kinko's whether that person was his replacement, and according to Kinko's evidence, she was not. But regardless of whether Kinko's intended Shepard to be LaFord's temporary substitute or his permanent replacement, the mere fact that LaFord saw someone sitting at his desk as he drove by the office on his last day of medical leave did not absolve him from any responsibility for notifying Kinko's that he expected, and intended, to return to work. Kinko's motion for summary judgment on this claim is granted.
Claim Four — Interference and retaliation in violation of the Oregon Family Medical Leave Act, Or. Rev. Stat. § 659A.183
Kinko's asserts that there is no provision for a retaliation claim in the Oregon Family Medical Leave Act, but even if there were, LaFord has not come forward with evidence of a causal connection between LaFord's protected medical leave and Kinko's decision to terminate him.
Section § 659A.183 provides, "A covered employer who denies family leave to an eligible employee in the manner required by ORS 659A.150 to 659A.186 commits an unlawful employment practice." Kinko's argues that no provision in the OFLA identifies retaliation as an unlawful employment practice, and Or. Rev. Stat. § 659A.885(1) limits private causes of action to practices specified in subsection (2). Subsection (2) includes the unlawful employment practice identified in the OFLA. There is no statutory provision creating a private cause of action for retaliation against an employee who takes family leave under the OFLA. LaFord does not challenge Kinko's assertion that there is no cause of action for retaliation under the OFLA.
There is no evidence that Kinko's denied LaFord the leave he requested. For the reasons discussed above under Claim One, there is also no evidence of a causal connection between LaFord's having taken medical leave and his termination. Kinko's has articulated a bona fide reason for terminating LaFord, and LaFord has not generated a material question of fact on the proffered reason for his termination.
OFLA does contain a provision requiring that an eligible employee be restored to his position at the conclusion of his leave, and LaFord focuses his argument on this provision:
After returning to work after taking family leave under the provisions of ORS 659A.150 to 659A.186, an eligible employee is entitled to be restored to the position of employment held by the employee when the leave commenced if that position still exists, without regard to whether the employer filled the position with a replacement worker during the period of family leave.
Or. Rev. Stat. § 659A.171. However, this provision does not entitle the employee to "[a]ny right, benefit or position of employment other than the rights, benefits and position that the employee would have been entitled to had the employee not taken the family leave." Or. Rev. Stat. § 659A.171(3)(b). See also OAR 839-009-0270(4)(b) ("An employee has no greater right to a job or other employment benefits than if the employee had not taken OFLA leave.")
Kinko's argues that LaFord has essentially asked the court to save him from the consequences of his actions and put him in a position better than that of another employee who violated the absenteeism provision of the Handbook, merely because he took medical leave. This argument is flawed by the fact that Goodwin's letter to LaFord of August 10 indicates that, despite Ford's having failed to report to work for more than three days, he has not yet been terminated. The letter clearly states that if LaFord does not contact Kinko's by August 15, 2001, Kinko's "will consider your lack of response to be a voluntary resignation from your employment." The discrepancy, however, is not material. LaFord's having applied for unemployment benefits on August 3, and not having reported to work on August 6, 7, 8, 9 or 10, dispels any inference that Goodwin's letter led LaFord to believe he still had his job at Kinko's. Further, I agree that LaFord's having taken medical leave did not absolve him from his responsibility to contact someone at the branch office or appear for work when the leave expired. I conclude that LaFord's six-day delay — from Saturday, August 4 to Thursday, August 9 — in notifying Kinko's that he was ready to resume work constituted a relinquishment of his reinstatement rights. To hold otherwise would require Kinko's to give LaFord preferential treatment over someone who had not taken leave and simply failed to show up for work. Kinko's motion for summary judgment on this claim is granted.
However, Goodwin testified at his deposition that the decision to terminate LaFord had already been made when the letter was sent on August 10. Goodwin Deposition, p. 131.
Claim Five — wrongful termination
Kinko's argues that this claim should be dismissed on three grounds: first, that LaFord relinquished his rights under the OFLA, so that he had no underlying job-related right that he was attempting to enforce; second, that there is no causal nexus between an attempted exercise of rights and the adverse employment action; and third, that there is an adequate statutory remedy under the OFLA for any alleged discrimination, retaliation or interference.
A terminated at-will employee can assert a common-law claim for wrongful termination when the employee was discharged 1) for complying with a public duty, see, e.g., Nees v. Hocks, 272 Or. 210 (1975) and 2) for exercising a job-related right of important public interest, see, e.g., Delaney v. Taco Time Int'l, 297 Or. 10 (1984). A cause of action for wrongful termination is available only when there is no other adequate remedy for the alleged wrong. Patton v. J.C. Penney, 301 Or. 117, 121 (1986).
LaFord argues that termination for requesting medical leave constitutes a wrongful discharge under the second of these.Washington v. Fort James Operating Co., 110 F. Supp.2d 1325, 1334 (D. Or. 2000); Wilson, supra, and argues, correctly, that this court has held that OFLA's failure to provide damages for emotional distress precludes a finding of the adequacy of LaFord's remedy at law, citing Washington, 110 F. Supp.2d at 1334.
LaFord denies that he violated the absenteeism policy, arguing that Kinko's breached its own policies by failing to notify him that he was scheduled to work and to offer him his previous position. For the reasons already discussed, I find no merit in these arguments.
LaFord also argues that he has a right "not to be retaliated against, if he has a good faith basis to believe that he is entitled to OFLA relief." Plaintiff's Memorandum p. 16. This argument is also unpersuasive. LaFord's good faith beliefs are immaterial to a wrongful discharge analysis. As Kinko's points out, a mistake on LaFord's part is not evidence of an unlawful motivation on Kinko's part.
LaFord relinquished his reinstatement right under the OFLA when he failed to contact Kinko's for several days after his leave expired. I agree with Kinko's that his claim for wrongful termination must fail because LaFord has not identified a jobrelated right that he was attempting to exercise at the time of his termination. Kinko's motion for summary judgment on this claim is granted.
Conclusion
Plaintiff's motion for partial summary judgment on his remaining claims (doc. # 41) is DENIED. Defendant's motion for summary judgment (doc. # 45) on the remaining claims is GRANTED. This case is dismissed.
IT IS SO ORDERED.