Werner v. Sturgeon Electric Company, Inc.

Motion for Summary Judgment and Incorporated Legal Memorandum In Support.

D. Or.May 30, 2017

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND INCORPORATED LEGAL MEMORANDUM IN SUPPORT FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 Danielle S. Urban, Pro Hac Vice durban@fisherphillips.com FISHER & PHILLIPS LLP 1801 California Street, Suite 2700 Denver, CO 80202 Telephone: (303) 218-3650 Facsimile: (303) 218-3651 Anne M. Milligan, OSB #111615 amilligan@fisherphillips.com FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, OR 97204 Telephone: (503) 242-4262 Facsimile: (503) 242-4263 Attorneys for Defendant STURGEON ELECTRIC COMPANY, INC. d/b/a STURGEON ELECTRIC IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION ALLEN WERNER, Plaintiff, v. STURGEON ELECTRIC COMPANY, INC. d/b/a STURGEON ELECTRIC, Defendant. Case No. 3:16-cv-01334 DEFENDANT STURGEON ELECTRIC’S MOTION FOR SUMMARY JUDGMENT AND INCORPORATED LEGAL MEMORANDUM IN SUPPORT Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 1 of 20 Page i DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 TABLE OF CONTENTS I. LR 7-1(A)(1) CERTIFICATION ............................................................................................ 1 II. MOTION ................................................................................................................................. 1 III. INTRODUCTION................................................................................................................... 1 IV. FACTUAL BACKGROUND.................................................................................................. 1 V. LEGAL ANALYSIS ............................................................................................................... 5 A. STANDARD ............................................................................................................................ 5 B. PLAINTIFF’S CLAIMS ............................................................................................................. 6 1. STURGEON DID NOT DISCRIMINATE OR RETALIATE AGAINST PLAINTIFF PURSUANT TO ORS 659A.040 ........................................................... 6 2. PLAINTIFF'S CLAIM FOR FAILURE TO RE-INSTATE/RE-EMPLOY INURED WORKER UNDER ORS 659A.043, 046 FAILS AS A MATTER OF LAW AND SHOULD BE DISMISSED ........................................................................................ 8 3. STURGEON DID NOT VIOLATE THE AMERICANS WITH DISABILITIES ACT, ORS 659A.112, ORS 659A.109, OR ORS 659A.118 ......................................... 9 4. PLAINTIFF WAS NOT A WHISTLEBLOWER PURSUANT TO ORS 659A.199 ............. 13 VI. CONCLUSION................................................................................................................. 15 Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 2 of 20 Page ii DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................. 5 Davis v. Con-Way Freight, Inc., 139 F.Supp.3d 1224, 1234 (D. Oregon 2015) ...................... 12 Estes v. Lewis and Clark College, 954 P.2d 792 (Or. App. 1998) ........................................... 15 Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976) .................................................................. 5 Larmanger v. Kaiswer Foundation Health Plan of the Northwest, 895 F.Supp.2d 1033, 1049 (D. Oregon 2012) ........................................................................... 14 Ledesma v. Freightliner Corp., 776 P.2d 43, 45 (Or. App. 1989) ............................................ 7 McGuire v. Dobbs Int'l Svcs., Inc., 232 F.3d 895 (2000) ............................................. 11, 12 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) ........................ 5 Merrill v. M.I.T.C.H. Charter School Tigard, 2011 WL 1457461 at *8 (D.Oregon 2011)….. 14 Neighbors v. Quest Health Care, 870 F.Supp.2d 1069, 1101-02 (D.Or. 2012) ...................... 14 Sandberg v. City of N. Plains, 2012 WL 602434 at *7 (D.Oregon February 22, 2012)........ 15 Sanders v. Arneson Prod., 91 F.3d 1351, 1354 (9th Cir. 1996) ..................................... 10, 11 Scaretta v. Dillon Cos., 2014 Lexis 12133 (10th Cir. 2014) .................................................. 10 Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001) ........................ 10 Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999) ............................................................................................................. 11 Thompson v. Holy Family Hosp., 121 F.3d 537, 539 (9th Cir. 1997) ........................................ 9 Vanlandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989).......................................... 5 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) ................................ 8 Whitley v. City of Portland, 654 F.Supp.2d 1194, 1220 (D. Oregon 2009)............................... 7 Williams v. Freightliner, LLC, 100 P.3d 117, 1121 (Or. App. 2004)........................................ 6 Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 3 of 20 Page iii DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 Statutes ORS 659A.040......................................................................................................................... 6 ORS 659A.043......................................................................................................................... 8 ORS 659A.046......................................................................................................................... 8 ORS 659A.109............................................................................................................... 9, 12, 13 ORS 659A.112.................................................................................................................... 9, 12 ORS 659A.118.................................................................................................................... 9, 12 ORS 659A.199.........................................................................................................................13 42 U.S.C. § 12102(1) ...............................................................................................................10 Rules 29 C.F.R. § 1630.2(j)(3)(1).................................................................................................... 11 Fed. R. Civ. P. 56.................................................................................................................... 1 Fed R. Civ. P. 56(a) .................................................................................................................5 Fed. R. Civ. P. 56©(1) .............................................................................................................5 Local Rule 7-1(a)(1) ............................................................................................................. 1 Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 4 of 20 Page 1 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 I. LR 7-1(a)(1) CERTIFICATION In accordance with Local Rule 7-1(a)(1), counsel for Defendant Sturgeon Electric Company, Inc. (“Sturgeon”) hereby certifies that prior to the filing of this Motion, good faith efforts were made to confer with Plaintiff’s counsel regarding this Motion. Declaration of Danielle S. Urban in Support of Defendant’s Motion for Summary Judgment (“Urban Declaration”), ¶ 2. The parties were unable to resolve the dispute. Id. II. MOTION Pursuant to Fed. R. Civ. P. 56, Sturgeon moves this Court for an Order dismissing each of Plaintiff’s Claims for Relief. This Motion is supported by the following Legal Memorandum, the Urban Declaration, the Declaration of Michael Lambert (Exhibit J “Lambert Declaration”), and the pleadings already on file with the Court. III. INTRODUCTION This is a simple case, with simple facts. Plaintiff, who came to work for Sturgeon in December 2015, suffered an at-work injury approximately one week after he started working for Sturgeon because he failed to wear proper safety equipment. Immediately following his accident, Plaintiff attempted to hide the fact that he was not wearing proper safety equipment – cut-resistant gloves - first by throwing the glove he had been using in the trash, and then by alleging that cut- resistant gloves were not available. When Sturgeon investigated the incident and confirmed that Plaintiff had not been wearing cut-resistant gloves at the time of his accident, despite ample supply and many reminders that the cut-resistant gloves were required safety equipment, it made the decision to terminate his employment for violation of a safety requirement. Plaintiff’s lawsuit followed. Sturgeon sets out below why summary judgment is proper on all of Plaintiff’s claims. IV. FACTUAL BACKGROUND Sturgeon Electric Company, Inc. (“Sturgeon”) provides comprehensive electrical construction services throughout the western United States. Ex J at ¶ 2, Lambert Declaration. Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 5 of 20 Page 2 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 Plaintiff Alan Werner began working for Sturgeon on December 2, 2015 as a journeyman wireman electrician. Exhibit A, Deposition transcript of Alan Werner at 9:19-20; Ex.6 to Ex. A. Plaintiff lives in California, but was made aware of the position with Sturgeon through his friend, Eric Crites, who had been called by his local union about the position in Oregon. Ex. A 5:20-22; Exhibit B, deposition transcript of Eric Crites 15:7-17. When Mr. Crites spoke with Sturgeon’s District Manager Mike Lambert about taking the position, he asked if he could bring Plaintiff to the job as an additional hand. Id. Mr. Lambert agreed, as Sturgeon always had a need for qualified electricians. Exhibit C, deposition transcript of Michael Lambert, 11:23-12:24. Plaintiff worked at the electrical substation in The Dalles, Oregon, which was a low voltage substation operated by the Bonneville Power Administration (BPA). Ex. C 7:7-21; Exhibit D, deposition transcript of David Thomas 5:34-6:5; Ex J at ¶4. Plaintiff’s main responsibility on the job site was to strip electrical cables, which involved pulling various layers of materials off electrical cables. Ex. 2 to Exhibit G, deposition transcript of Drew Tolliver at ¶3. .The cable is covered by a layer of black PVC coating, which is approximately 1/8 – 3/16 inches thick. Ex. 2 to Ex. G, at ¶4. Under the top layer is a jacket of corrugated copper, and under the copper jacket is an inner jacket that must also be removed. Ex. 2 to Ex. G, at ¶4. The copper jacket is very sharp, and employees are issued cut-resistant gloves to protect their hands from accidental cuts. Ex. 2 to Ex. G, at ¶8. On the job site, Plaintiff reported to Electrical Superintendent Drew Tolliver and the job Foreman Wireman, Mako Koike. Exhibit F, deposition transcript of Mako Koike 6:15-7:8; Ex. 2 to Ex. G, at ¶¶1,2. Mr. Tolliver noticed almost immediately that Plaintiff did not appear to have the experience he claimed and that he struggled with basic tasks, and sought permission to fire Plaintiff from Mr. Lambert, but Mr. Lambert asked Mr. Tolliver to try to work with Plaintiff a little longer before releasing him. Ex. C 56:23-57:6. Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 6 of 20 Page 3 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 On December 10, 2015, while stripping electrical cable, Plaintiff cut his thumb. Ex. 9 to Ex. A; Ex. G:18:13-19:5. No one on site witnessed the accident. Exhibit F 22:7-10; Ex. H 15:9- 14. Plaintiff initially claimed that he had cut his thumb on the utility knife he had been using to strip the rubber coating off the cable. Ex F 35:7-11; Ex. G:18:13-19:5. Mr. Koike found pieces of Plaintiff’s skin stuck to the copper shield, however, indicating that Plaintiff had actually cut his thumb on the copper shield. Ex. F 33:11-18; Ex. G:18:13-19:5. Mr. Koike also discovered Plaintiff’s bloody glove in the trash, and was surprised to see that the glove was not a cut-resistant glove as was required, but instead was a winter ski-type glove. Ex. F 32:11-33:9. Mr. Koike drove Plaintiff to the closest emergency room, and he and Plaintiff were met at the hospital by Mr. Tolliver. Ex. F, 19:8-10; 20:14-19. Mr. Tolliver questioned Plaintiff about how his injury had occurred as Plaintiff’s version of the story did not appear to make sense based on the evidence of Plaintiff’s skin and blood on the copper shield, but Plaintiff had no explanation. Ex. G 18:23-19:5. Nevertheless, Mr. Tolliver assured him that we would be provided whatever care he might need. Ex. G 73:19-74:5. Plaintiff was treated at the hospital and released, but told he could not use his hand until cleared by a surgeon. Ex. 8 to Ex. A. Mr. Tolliver took Plaintiff back to the job site, and both Mr. Tolliver and David Thomas, the site Quality Manager, told him that they had plenty of light duty work for him so that he would not lose any pay, but Plaintiff said he did not want to work any longer that day. Ex. D 14:15-15:8; Ex. G 21:18-22:4. Plaintiff came to the job site the next day, Friday, but also declined the offer of light duty. Ex. G 25:25-26:6. Mr. Tolliver told Plaintiff he would see him the next day, Saturday, at the job site, but Plaintiff failed to appear and he did not call Mr. Tolliver to tell him that he would not be coming to work. Ex. G 63:7-18; 64:6-8. Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 7 of 20 Page 4 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 After the accident and over the course of the weekend and Monday morning, Mr. Tolliver and Mr. Lambert spoke with the crew and attempted to ascertain how the accident had happened. Ex. C 55:16-19; Ex. G 68:1-17. Mr. Thomas had noticed Plaintiff wearing his cut-resistant gloves in the morning of the accident, but discovered that he had not been wearing them at the time of the accident. Ex. D 21:12-16. Doug Donahue, the Safety Engineer working at the jobsite, completed the investigation and wrote up a final report of the investigation, confirming that Plaintiff had not been wearing cut-resistant gloves at the time of the accident. Ex. 9 to Ex. A; Exhibit H 13:7-11. Plaintiff was well aware of the requirement to wear cut-resistant gloves because at the beginning of each work day, Sturgeon managers held a safety meeting to discuss the day’s tasks and the required safety equipment for each task. Ex. A 21:25-22:16; Ex. 7 to Ex. A; Ex. F 29:11- 18; Ex. I, deposition transcript of Andrew Mattila 18:12-19:7. On each day the crew were stripping cables, they were reminded of the importance of wearing cut-resistant gloves, and each of the crew members signed off on the meeting notes, acknowledging the requirement that they wear cut-resistant gloves. Ex. 7 to Ex. A. Plaintiff’s failure to wear the required safety equipment was a violation of Sturgeon safety policy and a terminable offense. Ex. G 70:1-4. Both Mr. Thomas and Mr. Donahue also investigated the accident, and confirmed that Plaintiff had not been wearing the required cut-resistant gloves. Ex. 9 to Ex. A; Ex H. Plaintiff admitted to Mr. Donahue that he had cut himself on the copper jacket, rather than the utility knife. Ex. H 14:8-16. Mr. Thomas and Mr. Tolliver agreed that based on his knowing safety violation, Plaintiff’s employment should be terminated, pending Mr. Lambert’s approval of the termination decision. Ex C 55:8-57:17; Ex. D 25:9-15; 35:5-16; Ex. G 32:23-33:2. Regional Safety Manager Kevin Martin concurred with the decision, stating that in his experience, employees would be Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 8 of 20 Page 5 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 immediately fired for this type of safety violation. Exhibit E, deposition transcript of Kevin Martin 61:2-11. Based on their findings, as well as Plaintiff’s failure to call or come to work on Saturday, December 12, Mr. Lambert approved Plaintiff’s discharge, and Mr. Tolliver discharged Plaintiff on Monday, December 14. Ex. C 55:16-19; Ex G 31:22-23; 32:11-33:2; 67:17-25; 69:21-70:5. V. LEGAL ANALYSIS A. Standard Summary judgment is appropriate if the pleadings, depositions, and other documents on file 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(a). The court views the record in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). If the movant shows that no genuine issue exists for trial, the non-movant cannot then rest on the pleadings but must respond by “citing to particular parts of materials in the record, including deposition, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials. Fed. R. Civ. P. 56(c)(1). When the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On a motion for summary judgment, all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 9 of 20 Page 6 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 Here, the record establishes that there is no genuine issue of material fact that would prevent the Court from granting summary judgment in favor of Sturgeon. B. Plaintiff’s Claims 1. Sturgeon did not discriminate or retaliate against Plaintiff pursuant to ORS 659A.040. Plaintiff’s first claim for relief alleges that he was discriminated and/or retaliated against for invoking his rights to the workers’ compensation system. To establish a prima facie case under ORS 659A.040, Plaintiff must demonstrate (1) that he invoked the workers’ compensation system; (2) that he was discriminated against in the tenure, terms or conditions of employment; and (3) that Sturgeon discriminated against him because he invoked the workers’ compensation system. Williams v. Freightliner, LLC, 100 P.3d 1117, 1121 (Or.App. 2004). As an initial matter, Sturgeon personnel did not have direct knowledge of Plaintiff invoking the workers’ compensation system on the day of his accident, nor in the three days following his accident. Ex. G 34:6-35:20. Plaintiff’s managers and co-workers testified that they did not witness Plaintiff’s injury, nor did they have any sense how serious it might be. Most of them referred to his injury as a “cut.” Ex. D 12:12-13:2; 57:8-10; 62:16-19; Ex. F 12:22-13:2; 19:21-20:1; 21:6- 24, Ex. I 12:21-23. Even if they had been aware of his demand for workers’ compensation benefits, Plaintiff fails to establish his prima facie case of workers’ compensation discrimination or retaliation, because he cannot deny that he was fired for violating Sturgeon’s safety procedures; specifically, that he was not wearing cut-resistant gloves at the time of his accident, which were required safety equipment for the job Plaintiff was performing. It is undisputed that Plaintiff was not wearing cut- resistant gloves at the time of his accident, despite the fact the gloves were discussed at every Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 10 of 20 Page 7 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 morning safety meeting. Exs. 7 and 9 to Ex. A; Ex. G 70:1-4. His failure to wear required safety equipment was the reason for his termination, and not the filing of a workers’ compensation claim, and therefore, dismissal of his workers’ compensation discrimination/retaliation claim is appropriate. See Ledesma v. Freightliner Corp., 776 P.2d 43, 45 (Or. App. 1989)(summary judgment granted where Court determined plaintiff was fired for lying about his disability status, not because he filed a workers’ compensation claim). Although Plaintiff now claims that cut-resistant gloves were not provided on the job site, his testimony goes against the weight of evidence presented in this case, including ample witness testimony (Ex. D 21:17-19; 26:20-23; Ex .F 9:24-10:16,; Ex 2 to Ex. G; Ex. H 16:17-18:5; Ex. I 17:8-14), Plaintiff’s signature on the daily safety meeting notes indicating his understanding of the requirement to wear, and the availability of, cut-resistant gloves (Ex. 7 to Ex. A; Ex. E, 26:2-5); the communications among Sturgeon managers following the accident confirming that Plaintiff had access to cut-resistant gloves but chose not to wear them (Ex. 1 to Ex. E; Ex. E 27:24-28:6; Ex G 32:11-33:2); the record of cut-resistant gloves on site (Ex. J at ¶6); and, the report put together by Sturgeon’s Safety Engineer and Quality Manager, who investigated the accident and confirmed there were cut-resistant gloves on site Ex. 9 to Ex. A. Although Plaintiff’s testimony on this issue is highly questionable and self-serving, his assertions to the contrary ultimately do not preclude summary judgment because the correct analysis centers on whether the decision makers who made the decision to terminate his employment believed that gloves were available and believed that he blatantly disregarded the requirement to wear them at the time they made the discharge decision. Whitley v. City of Portland, 654 F.Supp.2d 1194, 1220 (D. Oregon 2009)(“courts only require that an employer honestly believe its reasons for its actions, even if its reason is foolish or trivial or baseless”)(internal Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 11 of 20 Page 8 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 citations omitted). Based on the ample evidence that cut-resistant gloves were available on site, it was reasonable for Sturgeon’s managers - Drew Tolliver and Michael Lambert – to conclude that Plaintiff had knowingly and willfully violated Sturgeon safety policies by failing to wear cut- resistant gloves. In fact, the email communications among Sturgeon’s managers after the accident all clearly indicate all of the managers believed that cut-resistant gloves were available and that Plaintiff chose not to wear them Their reliance on their subjective belief in making the termination decision, despite Plaintiff’s self-serving conflicting testimony, does not preclude dismissal of his claims. See, e.g., Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002)(dismissal of claims on summary judgment upheld where plaintiff proffered no evidence to show employer did not honestly believe its reason for termination). Plaintiff does not deny that he was not wearing the required cut-resistant gloves, and under Sturgeon policy, this was a serious safety violation, which resulted in his discharge. As Mr. Lambert testified, Sturgeon was short of qualified workers for the job site and needed all of the qualified workers it could find. Had Plaintiff not disregarded safety requirements, he would not have been fired. Other employees have made workers’ compensation claims and have not been fired; the reason Plaintiff was fired is because he blatantly disregarded safety requirements. Ex. J at ¶7. Plaintiff has not, and cannot, produce any evidence to show that he was fired because he invoked the workers’ compensation system. 2. Plaintiff’s claim for failure to re-instate/re-employ injured worker under ORS 659A.043, 046 fails as a matter of law and should be dismissed. Plaintiff’s claim under ORS 659A.043 is deficient as a matter of law and should be dismissed. ORS 659A.043 provides, in part, that a worker who has sustained a compensable injury shall be reinstated by the worker’s employer to the worker’s former position of employment upon Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 12 of 20 Page 9 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 demand for such reinstatement, if the position exists and is available and the worker is not disabled from performing the duties of such position. Id. By his own admission, Plaintiff admitted that he never applied for reinstatement: Q. “…After your hand was healed and you were cleared to go back to work, did you ever contact Sturgeon Electric to be reinstated to your position? A. No. Q. Why not? A. I think they were 980 miles away, approximately. I was in California. (Ex. 1 74:17-24). Accordingly, Plaintiff claim pursuant to ORS 659A.043 fails as a matter of law and should be dismissed. 3. Sturgeon did not violate the Americans with Disabilities Act, ORS 659A.112, ORS 659A.109, or ORS 659A.118. a. Plaintiff was neither disabled nor perceived as disabled. Plaintiff alleges several claims under Oregon and federal disability statutes, claiming that he was discriminated and retaliated against because of an actual or perceived disability, presumably based on the injury to his thumb. At the summary judgment stage, Plaintiff bears the burden of establishing a prima facie case of disability discrimination. Thompson v. Holy Family Hosp., 121 F.3d 537, 539 (9th Cir. 1997). Plaintiff’s disability claims fail because he cannot establish a prima facie case of disability discrimination or retaliation. Plaintiff was not disabled under the law, and even if he had been disabled, Sturgeon was not aware of any disability at the time of his discharge. It is undisputed that Plaintiff suffered an on-the-job injury on December 10, 2015. But as he and others at the jobsite have testified, Plaintiff’s co-workers and site foreman did not see his injury; they only saw his wrapped hand and were unable to ascertain the extent of his injury. Most of them testified they believed he had simply cut himself. Ex. D 12:12-13:2; 57:8-10; 62:16-19; Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 13 of 20 Page 10 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 Ex. F 12:22-13:2; 19:21-20:1; 21:6-24, Ex. I 12:21-23. Plaintiff would not permit Sturgeon’s safety personnel or his project superintendent into the examination room with him, so no one at Sturgeon knew the extent of Plaintiff’s injury or his diagnosis. Ex. A 40:10-13; 46:25-47:3-9; Ex. G 27:13-21; 29:2-13; 69:4-7. The only concrete information Sturgeon had was that Plaintiff was told not to use his injured hand until after he met with a specialist. Ex. G 21:16-17. In order to prevail on his disability claims, Plaintiff must establish a prima facie case of discrimination by showing that he: (1) has or is perceived as having a disability; (2) is a qualified individual, meaning he is capable of performing the essential functions of the job; and (3) suffered an adverse employment action because of his disability. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001). The standard for establishing a prima facie case under Oregon law is the same standard as under the federal ADA. Id. Plaintiff cannot demonstrate that he had an actual disability when Sturgeon fired him for failing to wear required safety equipment. A disabled individual is one who has a physical or mental impairment that substantially limits a major life activity. 42 U.S.C. § 12102(1). There are no per se disabilities and courts may not assume a condition substantially limits a major life activity. Scaretta v. Dillon Cos., 2014 Lexis 12133 (10th Cir. 2014); 29 C.F.R. §1630.2(j)(l)(ii). Plaintiff’s impairment was not one that substantially limited a major life activity; rather, it was a temporary condition, lasting only for a few months. Temporary, non-chronic impairments of short duration, with little or no long-term or permanent impact are usually not disabilities, and cannot be the basis for a sustainable claim under the ADA. Sanders v. Arneson Prod., 91 F.3d 1351, 1354 (9th Cir. 1996)(finding that temporary conditions such as broken limbs, sprained joints, and concussions, among other conditions, are not disabilities under the ADA). Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 14 of 20 Page 11 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 Plaintiff testified that he was awarded temporary, partial disability benefits through March 20, 2016, and was cleared to return to work after that date, without limitations. Ex. A 169:17- 170:13. Although Plaintiff cannot recall the date he had surgery, documentary evidence establishes that at most, he was unable to use his hand for a period of three months. Ex. A 170:11- 13. The brief duration of his injury does not qualify as a disability under the ADA, and thus Plaintiff cannot establish his prima facie case of disability under federal or Oregon law. McGuire v. Dobbs Int’l Svcs., Inc., 232 F.3d 895 (2000)(granting summary judgment where plaintiff was out of work for two months with a back injury and court held injury was merely a temporary impairment); see also, Sanders, 91 F.3d at 1534 (no disability where plaintiff was off work for four months with injury). Sturgeon offered Plaintiff light duty work, but Plaintiff refused the work. Ex. D 14:15- 15:8; Ex. G 21:18-22:4, 25:25-26:6. Although he was temporarily unable to use his hand to strip cables, this was only one of the tasks he could perform at Sturgeon’s job site. Mr. Tolliver testified there were several tasks he could have performed on the job site. Ex. G 26:3-14; 64:6-12. This limited impairment did not constitute a disability because Plaintiff’s “inability to perform a single, particular job does not constitute a substantial limitation of the major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(1); Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Moreover, Sturgeon perceived Plaintiff’s impairment to be only temporary and minor. Ex. B 51:9-52:8- Immediately following Plaintiff’s injury, Sturgeon offered Plaintiff light duty, which he refused. Ex. D 14:15-15:8; Ex. G 21:18-22:4, 25:25-26:6. Both Sturgeon’s safety crew members and Plaintiff’s superintendent expected that he would receive treatment for his injury and return to work. At least one Sturgeon manager testified that he believed Plaintiff was exaggerating Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 15 of 20 Page 12 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 his injuries, and the others testified that his cut did not appear serious. Ex. B 36:1137:3; Ex. D 62:16-19; Ex. E 49:23-50:4; Ex. F 21:6-24; Ex G 57:7-12. Because Sturgeon did not believe Plaintiff was disabled, Plaintiff cannot maintain a “perceived disability” claim. McGuire, 232 F.3d at 895 (court held that defendant did not perceive plaintiff to be disabled because, among other reasons, defendant believed plaintiff was exaggerating his injury). Plaintiff fails to establish his prima facie case for disability discrimination because he cannot demonstrate that he was disabled or perceived to be disabled, and therefore his claim should be dismissed. In the unlikely event he could establish that he were disabled or that Sturgeon perceived his as disabled, Plaintiff cannot demonstrate that he was fired because of any perceived or actual disability. Rather, Plaintiff was fired for failure to wear required safety equipment. Davis v. Con- Way Freight Inc., 139 F.Supp.3d 1224, 1234 (D. Oregon 2015)(summary judgment granted where plaintiff fired for causing damage to company vehicle, not disability). b. Plaintiff did not seek an accommodation under ORS 659A.112 and ORS 659A.118, and he refused the light-duty accommodation offered to him by Sturgeon. ORS 659A.112 provides that an employer commits an unlawful employment practice if it “does not make reasonable accommodation to the known physical or mental limitations of an otherwise qualified person with a disability who is a job applicant or employee * * *.” If an applicant or employee is not an “otherwise qualified person with a disability,” the employer is not required to make an accommodation. (emphasis added). Because Plaintiff was not an “otherwise qualified person with a disability…who is an employee,” Sturgeon was not required to offer him a reasonable accommodation. Nevertheless, Sturgeon did offer Plaintiff light duty, as a temporary accommodation until his injury healed. Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 16 of 20 Page 13 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 Plaintiff refused that accommodation. Ex. D 14:15-15:8; Ex. G Ex. G 21:18-22:4; Ex. G 25:25- 26:6. His claim under ORS 659A.112 and ORS 659A.118 therefore warrant dismissal. c. Plaintiff was not retaliated against for invoking his rights under ORS 659A.109. Plaintiff’s disability retaliation claim appears to be based on the termination of his employment on December 14, 2015. To prevail on this claim, Plaintiff must prove that Sturgeon terminated his employment because he invoked his rights under Oregon’s disability discrimination statute. ORS 659A.109 provides: It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS 659A.100 to 659A.145 or has given testimony under the provisions of such sections. Plaintiff’s claim fails. As Sturgeon has amply demonstrated, Plaintiff’s employment was not terminated because he invoked his rights under Oregon’s disability statute. Rather, his employment was terminated for the legitimate business reason that Plaintiff knowingly violated Sturgeon’s policies by failing to wear appropriate safety equipment. Plaintiff cannot prove that he suffered an adverse employment action because he invoked his rights under Oregon’s disability discrimination statute, and his claim should be dismissed. 4. Plaintiff was not a whistleblower pursuant to ORS 659A.199. Finally, Plaintiff’s claim under ORS 659A.199 is groundless and should be dismissed upon summary judgment. ORS 659A.199 states It is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 17 of 20 Page 14 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 information that the employee believes is evidence of a violation of a state or federal law, rule or regulation. To survive a motion for summary judgment, Plaintiff must demonstrate that (1) he engaged in protected activity; and (2) he suffered an adverse employment decision (3) because he engaged in the protected activity. Larmanger v. Kaiser Foundation Health Plan of the Northwest, 895 F.Supp.2d 1033, 1049, (D. Oregon 2012). If Sturgeon asserts a non-discriminatory reason for Plaintiff’s discharge, Plaintiff must then demonstrate that Sturgeon’s explanation for the decision is merely a pretext for retaliation. Neighbors v. Quest Health Care, 870 F.Supp.2d 1069, 1101-02 (D.Or. 2012). Plaintiff cannot demonstrate the first and third prongs of his prima facie case. Plaintiff has not provided any record evidence that he engaged in protected conduct. This Court has defined “protected conduct” as a complaint made to an employer or an outside third party “ ‘intended to or likely result in’ a criminal or civil proceeding.” Merrill v. M.I.T.C.H. Charter School Tigard, 2011 WL 1457461 at *8, (D.Oregon 2011). Although it is unclear what information Plaintiff reported that he believed was a violation of a state or federal law, rule or regulation, or to whom he reported any such violation, Plaintiff testified that he did not make any complaints while on the work site, but instead alleged that he spoke with his co-workers about his safety concerns on the worksite. Ex. A 27:13-15; 31:25-32:2. Conversations with mere co-workers, with no power to act on any concerns or complaints, are not “intended to or likely to result in a criminal or civil proceeding,” as Plaintiff well knew from his decades of experience as an experienced journeyman electrician. Id. Plaintiff was well aware that he had avenues of complaint, including to his managers, the federal Occupational Safety and Health Administration (OSHA), or even his local union, but he did not make complaints to any person or entity during his employment with Sturgeon. Indeed, Plaintiff made a complaint to Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 18 of 20 Page 15 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 OSHA subsequent to his discharge, but that complaint was made on January 7, 2016, approximately three weeks following the termination of his employment. Ex. A 30:8-18; Ex. 16 to Ex. A, and therefore could not have been the reason for his discharge on December 14, 2015. Although Plaintiff is able to establish that he was subjected to an adverse employment action when his employment was terminated, he cannot demonstrate that his termination was caused by him taking part in any protected conduct. To establish causation, Plaintiff needs to demonstrate that his protected activity was a “substantial factor in the motivation to discharge him.” Sandberg v. City of N. Plains, 2012 WL 602434 at *7 (D. Oregon February 22, 2012). That is, a substantial factor is one “that made a difference in the discharge decision.” Estes v. Lewis and Clark College, 954 P.2d 792, (Or. App. 1998). The absence of any protected conduct during his employment makes it impossible for Plaintiff to demonstrate that any complaint was a factor in the termination decision, let alone a “substantial factor.” Because Plaintiff did not engage in protected conduct under the statute, his whistleblower retaliation claim should be dismissed as a matter of law. VI. CONCLUSION Plaintiff’s Claims are without merit and fail for three reasons. First, Plaintiff was fired for the legitimate, non-discriminatory and non-retaliatory reason that he willfully disregarded Sturgeon safety requirements. Second, he engaged in no protected conduct while he was employed by Sturgeon, and third, he never sought reinstatement. Plaintiff’s Claims should be dismissed as a matter of law. Respectfully Submitted May 30, 2017. FISHER & PHILLIPS LLP /s/ Danielle S. Urban Danielle S. Urban, pro hac vice Anne M. Milligan, OSB #111615 FISHER & PHILLIPS LLP Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 19 of 20 Page 16 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND LEGAL MEMORANDUM IN SUPPORT THEREOF FISHER & PHILLIPS LLP 111 SW Fifth Avenue, Suite 4040 Portland, Oregon 97204 (503) 242-4262 (503) 242-4262 Attorneys for Defendant Sturgeon Electric Company, Inc. d/b/a Sturgeon Electric Case 3:16-cv-01334-MO Document 21 Filed 05/30/17 Page 20 of 20