United States District Court, D. Oregon
Jacob Clink, Plaintiff, Pro se, Portland, OR.
For Defendant: Karen M. O'Kasey and Mark C. Sherman, Hart Wagner, LLP, Portland, OR.
OPINION AND ORDER
Michael H. Simon, United States District Judge.
Plaintiff Jacob Clink (" Mr. Clink" ) filed this action in Oregon state court against his former employer, Defendant Oregon Health and Science University (" OHSU" ). The case has since been removed to this Court. Mr. Clink asserts four claims for relief: (1) disability discrimination based on the Americans with Disabilities Act (" ADA" ); (2) disability discrimination based on the Vocational Rehabilitation Act of 1973 (" Rehabilitation Act" ); (3) retaliation and discrimination under the Family and Medical Leave Act; and (4) common law wrongful discharge based on allegations that OHSU discharged Mr. Clink because he took or was denied leave, or asserted his leave rights. Pl.'s First Am. Compl., Dkt. 1-2. On November 12, 2013, OHSU filed a Motion for Partial Summary Judgment under Federal Rule of Civil Procedure 56 against Mr. Clink's ADA and Rehabilitation Act claims, asserting that those claims are barred under the applicable statutes of limitations. For the reasons discussed below, the Court grants OHSU's Motion for Partial Summary Judgment.
A party is entitled to summary judgment if the " movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although " [c]redibility 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," the " mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . . " Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " Where 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., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and quotation marks omitted).
OHSU terminated its employment of Mr. Clink on November 14, 2011. On March 21, 2012, Mr. Clink filed a civil rights complaint with the Oregon Bureau of Labor and Industries (" BOLI" ) alleging that OHSU violated Oregon Revised Statute Sections 659A.112 (disability discrimination) and 659A.150 et seq. (Oregon Family Leave Act). BOLI filed Mr. Clink's complaint with the federal Equal Employment Opportunity Commission (" EEOC" ) on April 4, 2012.
On December 26, 2012, BOLI issued a Notice of Right to File Civil Suit letter to Mr. Clink. The notice letter stated that Mr. Clink had the right to file a suit based on the allegations in his complaint and that " [p]ursuant to ORS 659A.880 this action must be commenced within 90 calendar days from the above mailing date." The letter further provided: " After 90 calendar days from the above mailing date, the right to file in state circuit court is lost." Thus, Mr. Clink had to file his suit in Oregon state court by March 26, 2013. He filed his original complaint (" Original Complaint" ) in Multnomah County Circuit Court two days late on March 28, 2013. In his Original Complaint, Mr. Clink alleged only Oregon state law claims pursuant to Oregon Revised Statute Sections 659A.112 and 659A.150 et seq.
Mr. Clink also received a right-to-sue letter from the EEOC on January 24, 2013. The letter informed Mr. Clink that he had 90 days from the receipt of the letter, i.e. until April 24, 2013, to file his lawsuit under federal law in federal or state court or he would lose his right to sue under federal law. On July 26, 2013, Mr. Clink filed his First Amended Complaint (" Amended Complaint" ) alleging for the first time federal ADA and Rehabilitation Act claims. OHSU removed the case to federal court on August 1, 2013.
On November 8, 2013, the Court granted Mr. Clink's counsel's Motion to Withdraw. Mr. Clink was represented by counsel when he filed both his Original Complaint and Amended Complaint. See Dkts. 1-1, 1-2, 8. On November 12, 2013, OHSU filed its Motion for Partial Summary Judgment. Mr. Clink did not respond to OHSU's motion by December 6, 2013, as required by the Federal Rules of Civil Procedure and local rules. The Court ...