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Ambrose v. J.B. Hunt Transport, Inc.

United States District Court, D. Oregon, Portland Division

February 13, 2014

LEE AMBROSE, Plaintiff,
J.B. HUNT TRANSPORT, INC., a foreign corporation Defendant.

Larry L. Linder, John D. Burgess, The Law Office of Larry L. Linder, LLC, Salem, OR, Attorneys for Plaintiff.

Michael T. Garone, Jean Ohman Back Stephanie P. Berntsen Schwabe, Williamson & Wyatt, P.C., Portland, OR, Attorneys for Defendant.


DENNIS J. HUBEL, Magistrate Judge.

This case arises out of an employment dispute between Plaintiff Lee Ambrose ("Plaintiff") and his former employer, Defendant J.B. Hunt Transport, Inc. ("Defendant"). Defendant now moves, pursuant to Federal Rule of Civil Procedure ("Rule") 56(c), for summary judgment on Plaintiff's exclusively state law claims for violation of the Oregon Family Leave Act ("OFLA"), disability discrimination, failure to engage in interactive process, and workers' compensation discrimination. For the reasons that follow, Defendant's motion (Docket No. 32) for summary judgment is granted in part and denied in part.


Sometime in 2005, Plaintiff was driving a commercial truck for Vic West Steel, when he began to experience an accelerated heart rate, excessive sweating and nausea ("the 2005 incident"). Plaintiff received a clean bill of health after being examined by a cardiologist and his own physician. In early to mid-2006, Plaintiff had a similar episode while driving, where he experienced an accelerated heart rate, excessive sweating and shortness of breath ("the 2006 incident"). Plaintiff's dispatcher once again told him to consult with a doctor to determine the root cause of these episodes. Plaintiff did so and ultimately underwent a catheter ablation in May of 2006.[1]

Plaintiff was hired by Defendant effective May 2, 2011, to work as a commercial truck driver. Defendant requires its drivers to comply with applicable Department of Transportation ("DOT") regulations. Possessing a valid DOT medical certificate is a prerequisite to being employed as one of Defendant's drivers. Defendant's policies state that obtaining a DOT medical certificate under false pretenses would be grounds for automatic termination. (Kreider Decl. ¶ 11; Ohman Back Decl. Ex. B at 15.) "[F]alsification of an application or any work, personnel, or other J.B. Hunt records" would also be grounds for automatic termination. (Kreider Decl. ¶ 11; Ohman Back Decl Ex. B at 15.)

Plaintiff understood that his position was contingent upon successfully passing a DOT examination and possessing a valid DOT medical certificate. As part of the hiring process, Plaintiff completed and signed a "Medical Examination Report For Commercial Driver Fitness Determination." (Ohman Back Decl. Ex. B at 2.) Under the health history section, Plaintiff answered: (1) "no" to having "any illness or injury in the last 5 years, " (2) "no" to prior "cardiovascular conditions, " (3) "no" prior "heart surgery" or any "surgery, " and (4) "no" prior "loss of or altered consciousness" or "fainting, dizziness."[2] (Ohman Back Decl. Ex. B at 2.) Plaintiff certified that he provided complete and accurate information, and he acknowledged that "inaccurate, false, or missing information may invalidate the [DOT] examination and [his] Medical Examiner's Certificate." (Ohman Back Decl. Ex. B at 2) (emphasis added).

Plaintiff claims that he verbally informed Operations Supervisor, Mario Nucci ("Nucci"), and the DOT medical examiner, Stephanie Toman ("Toman"), M.D., about the 2005 incident, the 2006 incident and his May 2006 catheter ablation procedure. (Ambrose Dep. 54:19-55:6, 122:1-123:16, Jan. 25, 2013.) Plaintiff does not dispute, however, that he provided false information on the medical history form used by the DOT to evaluate his fitness to work as a commercial truck driver. (Ambrose Dep. 51:6-15, 52:1-9, 67:16-21.) Nor can Plaintiff dispute whether pertinent information regarding his medical history was missing from the Medical Examination Report.

On December 29, 2011, Plaintiff began to suffer from cold symptoms while driving a semi-truck for Defendant from Portland, Oregon, to Weed, California, and back. After arriving in Weed at approximately 4:45 p.m. on December 29, 2011 (Ambrose Tr. 4:10-25, Dec. 30, 2011), Plaintiff took a dose of DayQuil to treat his chest cold symptoms (Ambrose Dep. 142:3-14). Plaintiff went to bed around 8:00 p.m. that evening. (Ambrose Tr. 17:21-25.) Plaintiff took another dose of DayQuil at approximately 3:00 a.m. on December 30, 2011 (Ambrose Tr. 17:5-10; Ambrose Dep. 142:16-17), and departed for Portland about six minutes later (Ambrose Tr. 3:22-4:1).

At approximately 6:00 a.m., thirty miles north of Grants Pass, Oregon, Plaintiff began to cough incessantly after extinguishing a cigarette and blacked out behind the wheel. (Ambrose Tr. 10:1-11:24; Ambrose Dep. 150:13-151:5.) The semi-truck careened across the median and several oncoming traffic lanes, through a guardrail, overturned on an embankment, and eventually came to rest underneath an overpass after narrowly missing the concrete support column. (Burgess Decl. Ex. 6 at 2; Ambrose Dep. 151:6-20, 152:11-153:7.) When Plaintiff regained consciousness, he was hanging upside down by his seat belt and needed assistance from a good Samaritan to get out of the cab. (Ambrose Dep. 151:22-152:1, 154:3-4.) Miraculously, no other vehicles were involved in the accident. (Ambrose Dep. 153:21-25; Burgess Decl. Ex. 6 at 3.)

Plaintiff immediately reported the accident to his direct supervisor, Account Manager Brad Kreider ("Kreider"), and then went by ambulance to the Three Rivers Community Hospital in Grants Pass, where he received treatment for a chest contusion (bruised chest) and fainting episode (syncope). The treatment notes prepared by the emergency room doctor, Douglas Howard ("Howard"), M.D., on the morning of the accident state:

The patient appears uninjured other than some seat belt tenderness. It is not clear why he had a syncopal episode. I do not believe that simple coughing should cause syncope. My query would be recurrence of his dysrythmia. He has remained stable here. His plan is to return to Salem. I have advised him absolutely no driving until he is further cleared by Cardiology. He declines offer of analgesia, [so] all we will give is Tylenol and/or Ibuprofen for discomfort. He will follow up with Cardiology and his own physician when he returns to Salem.

(Ohman Back Decl. Ex. B at 22) (emphasis added).

Plaintiff was sitting on an emergency room bed when he was approached by Defendant's casualty investigator, David LaLande ("LaLande"). (Burgess Decl. Ex. 6 at 1-2.) Defendant had asked LaLande to obtain photographs of the accident scene and a recorded statement from Plaintiff.[3] (Burgess Decl. Ex. 6 at 1.) Plaintiff consented to have his statement tape-recorded by LaLande and certified that "the statements [he] made [we]re true to the best of [his] knowledge." (Ambrose Tr. 20:22-21:1.) During the interview with LaLande, Plaintiff discussed his medical history, including a number of heart-related issues, in great detail. Also of note is that Plaintiff corrected himself after initially stating he had taken NyQuil, as opposed to DayQuil, at 3:00 a.m. that morning.[4] (Ambrose Tr. 17:5-10.)

While at the hospital, an unnamed representative of Defendant asked LaLande to transport Plaintiff "to Asante Occupational Health Clinic for a blood test once he was discharged from the hospital." (Burgess Decl. Ex. 6 at 2.) LaLande escorted Plaintiff to the clinic at approximately 12:29 p.m. (Burgess Decl. Ex. 6 at 2, Ex. 9 at 1) and then returned to the scene of the accident, roughly thirty miles north of Grants Pass, to photograph the interior of the cab and look for any contraband, medications or alcohol (Burgess Decl. Ex. 6 at 2, Ex. 9 at 1). At 12:36 p.m., while at the clinic, Plaintiff notified Defendant's safety department that he needed to be cleared by a cardiologist before he could operate a vehicle. (Burgess Decl. Ex. 9 at 1.) At 1:03 p.m., Plaintiff notified Defendant's safety department that he completed the blood test. (Burgess Decl. Ex. 9 at 1.) At 1:29 p.m., LaLande completed his review and photographs of the accident scene.[5] (Burgess Decl. Ex. 9 at 1.)

That same day, presumably around the same time, Kreider began filling out a Safety Event Review. The true and correct copy of the three-page Safety Event Review is attached as Exhibit E to defense counsel's declaration. (Ohman Back Decl. ¶ 6.) When Kreider was deposed on May 7, 2013, he initially claimed that the entire Safety Event Review was drafted during a telephonic meeting held on January 4, 2012, even though the review date is listed as December 30, 2011. (Kreider Dep. 22:1-11, 34:12-35:3, May 7, 2013.) After taking a nine-minute break, Kreider asked to correct himself and proceeded to explain that he initiated the Safety Event Review on the day of the accident by typing in "the alpha code" and that "it was a collision, " but he "didn't actually input any of the facts and information in there until... the [telephonic meeting on January 4, 2012]." (Kreider Dep. 41:15-22, 42:15-24.) On September 2, 2013, Kreider submitted a declaration to the Court indicating that he prepared the Safety Event Review "at or near the time of [the] Safety Event Review Meeting." (Kreider Decl. ¶ 7.) Kreider's testimony on this matter should be evaluated by a jury.

Under the section entitled "Conclusion of Review, " the Safety Event Review states, among other things: (1) the safety department "is setting up a drug screen, " (2) the "root cause" of the accident was improper rest and improper recognition of illness, (3) Plaintiff should "[a]lways report illness to management and never operate a truck with inadequate rest, breaks, or proper health, " and (4) "[a]ny future safety events could lead to disciplinary actions up to and including termination of employment." (Ohman Back Decl. Ex. E at 1.) The second page of the Safety Event Review, however, indicates that Plaintiff had been terminated and that Kreider's electronic signature was affixed on January 4, 2012. (Ohman Back Decl. Ex. E at 2.)

In the afternoon or evening of December 30, LaLande submitted his investigative report to Defendant. The report is addressed to Defendant and dated December 30, 2011, the specified "loss date." (Burgess Decl. Ex. 6 at 1.) The report clearly states that LaLande enclosed a copy of Plaintiff's recorded statement (detailing his medical history and mistaken reference to NyQuil), a self-described "complete summary" of Plaintiff's statement, and the Oregon State Police Crash report. (Burgess Decl. Ex. 6 at 1-2.)

Four days later, on January 3, 2012, Kreider called Plaintiff to let him know that a Safety Event Review would be conducted. (Ambrose Dep. 202:17-203:4.) Plaintiff informed Kreider that he would not be able to attend in person since he was not cleared to operate a vehicle. (Ambrose Dep. 203:6-9; see also Kreider Decl. ¶ 7.)

Plaintiff attended a telephonic Safety Event Review on January 4, 2012, before Kreider, Area Risk Manager Keith Phillips ("Phillips"), and General Manager of Delivery Services Mike Nicholson ("Nicholson") (collectively, "the safety review team"). (Nicholson Decl. ¶ 2; Phillips Decl. ¶ 2; Kreider Decl. ¶ 7.) During that teleconference, Kreider prepared a portion of the "Conclusion of Review" section based on Plaintiff's description of the accident and the Oregon State Police Crash Report. (Kreider Decl. ¶ 8; Kreider Dep. 22:1-11, 42:16-24.) When Plaintiff mentioned that he had taken DayQuil, Kreider asked for and received a picture message of the bottle because he "wanted to make sure that what [Plaintiff] was saying was accurate, that he was [actually] taking DayQuil" (Kreider 24:12-22), as opposed to, for example, NyQuil (Kreider Dep. 24:23-25:1).

By this time, Kreider and Nicholson both knew that "the physicians at the hospital wanted [Plaintiff] to be checked out again before he could drive." (Nicholson Decl. ¶ 2; Kreider Decl. ¶ 7.) Nevertheless, the safety review team apparently all agreed that improper rest and improper recognition of illness was the root cause of the accident (Kreider Decl. ¶ 7; Phillips Decl. ¶ 2), and that the accident was therefore preventable (Kreider Decl. ¶ 7; Phillips Decl. ¶ 2; Nicholson Decl. ¶ 3). Later that day, a Driver Status Change was prepared indicating that Plaintiff had been terminated for violating DOT regulations.[6] (Burgess Decl. Ex. 7 at 4-5.)

Prior to being informed of his termination, Plaintiff claims that he "orally requested that he be returned to work upon his doctor's release, and that if possible he be employed in some other work in the interim." (Second Am. Compl. ¶ 15; Ambrose Decl. ¶ 10.) On January 5, 2012, Plaintiff called Kreider to report an upcoming appointment with a cardiologist and was told that he had been fired. (Ambrose Dep. 215:1-22.) Sometime in April of 2012, Plaintiff was diagnosed with a heart condition necessitating a pacemaker. It was not until about the third week of April 2012 that Plaintiff was able to return to work as a commercial truck driver. Plaintiff continued to suffer from severe heart-related problems and had a stent implanted on May 16, 2012.

In early September 2012, Plaintiff commenced the present action against Defendant in Multnomah County Circuit Court, alleging state law claims for violation of the OFLA, disability discrimination, failure to engage in interactive process and wrongful discharge, along with a federal claim for violation of the Family and Medical Leave Act ("FMLA"). On September 26, 2012, Defendant removed the action to federal court on the basis of diversity and federal question jurisdiction. 28 U.S.C. §§ 1331, 1332. Following the grant of an unopposed motion for leave pursuant to Rule 15(a)(2), Plaintiff filed an amended complaint on October 18, 2012, alleging only state law claims for violation of OFLA, disability discrimination, failure to engage in interactive process, and workers' compensation discrimination.


Summary judgment is appropriate "if pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Summary judgment is not proper if factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).

The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. A nonmoving party cannot defeat summary judgment by relying on the allegations in the complaint, or with unsupported conjecture or conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Thus, summary judgment should be entered against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

At the outset, it must be noted that, for purposes of the pending motion only, Defendant "relies upon Plaintiff's allegations and admissions to demonstrate that, even if true, no genuine issue of material fact exists to defeat summary judgment on all claims." (Def.'s Mem. Supp. at 2.) "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge at summary judgment." Barnett v. PA Consulting Group, Inc., 715 F.3d 354, 358 (D.C. Cir. 2013) (citation omitted).

The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). 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). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovick v. Life Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981). However, deference to the nonmoving party has limits. The nonmoving party must set forth "specific facts showing a genuine issue for trial." FED. R. CIV. P. 56(e). The "mere existence of a scintilla of evidence in support of plaintiff's positions [is] insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).


A. Motion One

At page eight of its memorandum in support, Defendant notes that its safety review team felt that "the December 30, 2011 potentially deadly, rollover accident was preventable." (Def.'s Mem. Supp. at 8) (emphasis added). Plaintiff moves to strike the emphasized language on the ground that it is irrelevant under Federal Rule of Evidence ("FRE") 401.

While the Court is mindful of the fact that "[d]efects in evidence submitted in opposition to a motion for summary judgment are waived absent a motion to strike or other objection, " FDIC v. N.H. Ins. Co., 953 F.2d 478, 484 (9th Cir. 1991) (citing Scharf v. U.S. Att'y Gen., 597 F.2d 1240, 1243 (9th Cir. 1979)), not all "objections are necessary, or even useful, given the nature of summary judgment motions in general, " Burch v. Regents of the Univ. of Cal., 433 F.Supp.2d 1110, 1119 (E.D. Cal. 2006). Indeed, "objecti[ng] to evidence on the ground that it is irrelevant... [is] duplicative of the summary judgment standard itself." Id. Courts "can award summary judgment only when there is no genuine dispute of material fact." Id.

The Court is capable of determining which facts are relevant to Defendant's motion for summary judgment and disregarding extraneous or improper factual statements. The adjectives Defendant chooses to use in describing the accident in this case are not facts, but are properly treated as argument. No part of the Court's decision on this motion is based on the language objected to and therefore the motion is denied as moot.

B. Motion Two

At page fourteen and fifteen of its memorandum in support, Defendant states: " In a transparent attempt to avoid the consequences of [Defendant's] after-acquired evidence and create a material issue of fact, Plaintiff subsequently testified he told his... supervisor, Mario Nucci, and the [DOT] Medical Examiner that he had a catheter ablation in 2006 on or about April 27, 2011." (Def.'s Mem. Supp. at 14-15) (emphasis added). Here, Defendant is alluding to its assertion that, prior to being hired, Plaintiff made material misrepresentations to Defendant and the DOT medical examiner about his past medical history. Plaintiff moves to strike the emphasized language on the ground it is "inappropriate" and irrelevant under FRE 401.

The Court denies Plaintiff's motion to strike Defendant's counsel's use of the language "[i]n a transparent attempt, " because it is not a factual statement. It is permissible legal argument, although not helpful.

C. Motion Three

At page three of its memorandum in support, Defendant references that " Plaintiff never advised... the DOT medical examiner, or J.B. Hunt, that he had lost consciousness while driving before he was hired or before the December 30, 2011 accident--and, in fact, now denies he ever lost consciousness before this accident despite his unambiguous admissions to the contrary." (Def.'s Mem. Supp. at 3.) Plaintiff moves to strike the emphasized language on the grounds that it is inaccurate and that Defendant lacks personal knowledge of that which it declares.

Whether Defendant's statement in its argument is correct or not that Plaintiff has provided inconsistent reports and testimony on the subject of whether he had lost consciousness while driving prior to December 30, 2011, is not a basis to strike the argument. The motion is denied.

D. Motion Four

At page four of its memorandum in support, Defendant states that:

Plaintiff also reported his health history on the [DOT] Medical Examination Report. Again Plaintiff answered no' to having any illness or injury in the last 5 years, ' no' prior heart surgery' or any surgery, ' and no' prior loss of or altered consciousness' or fainting, dizziness.' Plaintiff certified that he provided complete and true' information. He acknowledged that inaccurate, false, or missing information may invalidate the examination and [his DOT] Medical Examiner's Certificate.' Plaintiff denied all other prior medical history to the DOT medical examiner.

(Def.'s Mem. Supp. at 4) (internal citations omitted) (emphasis added). Plaintiff moves to strike the emphasized language on the ground that the DOT medical examiner, Toman, "does not have any recollection concerning Plaintiff's DOT medical examination [and thus] cannot give testimony concerning matters about which she has no personal knowledge." (Pl.'s Resp. at 7-8.)

Again, this is defense counsel's argument of what the record evidence means. It is not an effort by counsel to "supplement" the record. Therefore, the motion is denied.

Of interest, having denied the motion, the Court notes that Toman concedes that she cannot specifically recall Plaintiff or his examination. (Toman Dep. 27:18-28:7, July 15, 2013.) Toman did, however, provide the following testimony regarding the notes she transcribed on Plaintiff's report during his examination:

Q. Okay. And what do your notes say [on Plaintiff's DOT Medical Examination Report]?
A. It looks like a little bit of, maybe, the date there is cut off, but I read (quoted): 18/2011, [left] heel injury - followed by podiatrist - no limitations, ' and denies any other past medical history. Denies hospitalization. No medications.
Q. Okay. Does it say anything about a catheter ablation [Plaintiff ...

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