United States District Court, D. Oregon, Medford Division
REPORT & RECOMMENDATION
MARK D. CLARKE, Magistrate Judge.
Plaintiff brings claims against the defendant Murphy Company under the Americans with Disabilities Act (ADA), the Family Medical Leave Act, (FMLA), O.R.S. 659A.112, and 659A.183, Oregon's Family Leave Act (OFLA). This matter comes before the court on the defendant's motion for partial summary judgment (#10). For the reason below, defendant's motion for summary should be DENIED.
Plaintiff was employed full time by Murphy Veneer, beginning in or around July, 2003. On July 22, 2011 Plaintiff sought treatment for depression and anxiety. On August 1, 2011, the police detained Plaintiff at Murphy Veneer, and transported him to Rogue Valley Medical Center. He was admitted and placed on an overnight mental health hold; he was suicidal at the time. He saw a doctor to follow up on August 12, 2011. In September of 2011, Plaintiff filled out FMLA paperwork and was granted coverage for intermittent leave of absence in July and August, 2011, for a total of approximately eight days.
Paul D. Matz, M.D., filled out the FMLA paperwork for Plaintiff. In it, he noted that the condition commenced on July 22, 2011, and the patient was treated for the condition on that date, admitted to a hospital facility on August 1, and treated again on August 12. Dr. Matz checked the boxes to indicate that the patient will need to have treatment visits at least twice per year, and that medication was prescribed at the time of treatment. On the line indicating that the patient was referred to other health care providers for evaluation or treatment, the doctor wrote, "Counseling, RVMC Behavioral Health, Jackson County Mental Health." The doctor noted affirmatively that the employee "will need to attend follow-up treatment appointments" estimated at "2-4 hrs, " "every 2 months." He also noted affirmatively that the condition "will cause episodic flare-ups periodically preventing the employee from performing his/her job functions, " at an estimated frequency of "2 times per 2 months, " with a duration of "24 hours or 4 days per episode."
On December 12, 2011 Plaintiff alleges that he contacted his manager Oly Arrant and told him that he was having another episode and would not be in to work. Plaintiff had previously been told to call in every time he was suffering from anxiety and depression episodes. He alleges that the information he gave Mr. Arrant was the same as he gave every time he had previously called in to request FMLA leave time. Plaintiff alleges that on the following day, December 13, 2011 he contacted Mr. Arrant again and told him he would need a week or two of leave time to resolve his issues.
On Wednesday, December 14, 2011, plaintiff claims that he found out the Sheriffs office was looking for him, so he went to the office to find out why. He claims that on the way to the Sheriffs office, he called to tell Mr. Arrant where he was going and that he would not be in that day. He claims that when he spoke to Mr. Arrant on this occasion, he was not expecting to be arrested when he arrived; He was arrested, however, and he claims that his arrest was related to the anxiety and depression he was suffering at the time. He attempted to commit suicide while incarcerated.
Plaintiff claims he contacted Mr. Arrant, his supervisor, on the day he was released from jail, which was either December 19 or 20, 2011. He claims Mr. Arrant acknowledged that he knew that he'd been in jail and that was the reason Plaintiff had been unable to contact him. Plaintiff claims that he told Mr. Arrant that he would need more FMLA time, and Mr. Arrant responded that he would need to get a doctor's note, and he would also have to talk to Mr. Tollefson, the general manager, before he would be allowed to return to work. Plaintiff attempted to contact Mr. Tollefson, but was told that he was unavailable, as his grandmother had recently passed away.
On December 21, 2011, Plaintiff went to Medford Medical Clinic and got a note from Keith Williamson, M.D. Plaintiff called Mr. Arrant that same day to tell him about the note, but Mr. Arrant told him he was on indefinite suspension anyway. Approximately two days later, he called again, and Mr. Arrant told him he had a meeting scheduled with Mr. Tollefson. On approximately December 27, 2011, Plaintiff met with Mr. Arrant and Mr. Tollefson and gave them the doctor's note from December 21, along with the notes from Jackson County Mental Health dated December 12 and 13, 2011. Plaintiff claims that the supervisors refused to read the notes, and that they told him that Mr. Arrant told Mr. Tollefson that Plaintiff did not call in after being released from jail. Plaintiff was instead informed that he had been terminated.
Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material of fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986); Devereaux v. Abbey , 263 F.3d 1070, 1076 (9th Cir. 2001) (en bane). The court cannot weigh the evidence or determine the truth but may only determine whether there is a genuine issue of fact. Playboy Enters., Inc. v. Welles , 279 F.3d 796, 800 (9th Cir. 2002). An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248.
When a properly supported motion for summary judgment is made, the burden shifts to the opposing party to set forth specific facts showing that there is a genuine issue for trial. Id. at 250. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List , 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts which show there is a genuine issue for trial. Devereaux , 263 F.3d at 1076. In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles , 66 F.3d 1052, 1056 (9th Cir. 1995).
Plaintiff alleges unlawful employment practices on the basis of disability discrimination and retaliation, failure to provide reasonable accommodations, and medical leave discrimination and retaliation. His claims arise under the Americans with Disabilities Act (ADA), the Family Medical Leave Act, (FMLA), O.R.S. 659A.112, and 659A.183, Oregon's Family Leave Act (OFLA). Defendant moves for summary judgment as to the claims under the FMLA and the OFLA.
I. FMLA Claim
The Family Medical Leave Act of 1993 (FMLA) is a federal law that entitles an employee up to twelve workweeks of leave during any twelve-month period if the employee is unable to perform work related duties due to a serious health condition. 29 U.S.C. § 2612(a)(1)(D). A serious health condition is defined as "an illness, injury, impairment, or physical or mental condition that involves inpatient care as defined in§ 825.114 or continuing treatment by a health care provider as defined in § 825.115." 29 C.F.R. § 825.113(a). Mental illness may be considered a serious health condition, but only if all conditions set forth in the regulations for a serious health condition are met. 29 C.F.R. § 825.113(d).
A serious health condition involving "continuing treatment by a health care provider" includes any one or more of the following:
a. Incapacity and treatment. A period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
1. Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
2. Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.
3. The requirement in paragraphs (a)(1) and (2) of this section for treatment by a health care provider means an in-person visit to a health care provider. The first (or only) in-person treatment visit must take place within seven days of the first day of incapacity.
c. Chronic conditions. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic ...