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Clink v. Oregon Health and Science University

United States District Court, D. Oregon

August 5, 2014

JACOB CLINK, Plaintiff,
v.
OREGON HEALTH AND SCIENCE UNIVERSITY, Defendant.

Jacob Clink, 326 N.E. 156th, Portland, OR 97230. Pro se.

Karen M. O'Kasey and Mark C. Sherman, HART WAGNER, LLP, Portland, OR, Of Attorneys for Defendant.

OPINION AND ORDER AND SCIENCE

MICHAEL H. SIMON, District Judge.

Plaintiff Jacob Clink ("Mr. Clink") originally filed this action in Oregon state court against his former employer, Defendant Oregon Health and Science University ("OHSU"). The case was removed to this Court. Mr. Clink asserted 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) interference and retaliation under the Family and Medical Leave Act ("FMLA"); and (4) wrongful discharge.

On March 24, 2014, the Court granted OHSU's motion for partial summary judgment against Mr. Clink's ADA and Rehabilitation Act claims, leaving only his FMLA and wrongful discharge claims. On March 25, 2014, OHSU filed a motion for summary judgment against Mr. Clink's remaining claims for violation of the FMLA and wrongful discharge. Mr. Clink failed timely to respond to OHSU's motion by April 18, 2014. On April 22, 2014, the Court issued a minute order explaining that if the Court grants OHSU's motion "it will end [Mr. Clink's] case." Dkt. 22. The Court extended Mr. Clink's response deadline to May 23, 2014. Mr. Clink again failed to respond to OHSU's motion. For the reasons discussed below, the Court grants OHSU's motion for summary judgment.

STANDARDS

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 (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 (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. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

Where the non-moving party bears the burden of proof at trial, the movant need only point out an absence of evidence supporting the non-moving party's case to satisfy the movant's burden on summary judgment. Celotex Corp., 477 U.S. at 322-23. After the moving party satisfies its initial burden, the burden shifts to the non-moving party to "designate specific facts showing that there is a genuine issue for trial.'" Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1189 (9th Cir. 2013) (quoting Celotex Corp., 477 U.S. at 324). The moving party is entitled judgment as a matter of law "[i]f the non-moving party fails to make this showing." Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Celotex Corp., 477 U.S. at 323 ("The moving party is entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.").

BACKGROUND[1]

Mr. Clink began working for OHSU in August of 2005. Mr. Clink initially worked as a Property Specialist 1 with OHSU's Logistics Department and through promotion ultimately became a Property Specialist 3 in May of 2008. The "physical requirements necessary to perform the essential function" of the Property Specialist 3 position include: "repetitive lifting (35-70 lbs), stooping, and bending (50%-75% routinely)"; "use of materials handling equipment (pallet jack, forklift, hand truck, dolly, and carts)"; the ability "to lift and carry 50 lbs a distance of 100 feet"; "occasionally lift 100 lbs, with assistance"; and "push a cart weighing 350 lbs on occasion." Wong Decl. Ex. 2, Dkt. 21-2 at 5 (Property Specialist 3 position description). Covered by a Collective Bargaining Agreement ("CBA") between OHSU and his union, Mr. Clink was not an at-will employee. Mr. Clink remained employed by OHSU until his discharge on November 22, 2011.

Between 2008 and 2011, Mr. Clink took protected FMLA leave to address various health issues. Karen Wong, Senior Human Resources Business Partner at OHSU, reports in her declaration that Mr. Clink or his health care providers indicated that Mr. Clink's need for FMLA leave was due to several physical injuries, including: bulging discs in lower back, degenerative disc disease, and severe low back pain radiating down his thigh. Between January 3 and July 1, 2011, Mr. Clink used his FMLA leave intermittently, for a total of 122.98 FMLA leave hours. Throughout the period when Mr. Clink used intermittent leave in 2011, management at OHSU observed that Mr. Clink appeared to be in pain while working. In April of 2011, Ms. Wong referred Mr. Clink to OHSU's Affirmative Action and Equal Opportunity Department ("AAEO") to explore Mr. Clink's potential need for ADA accommodations. Mr. Clink submitted an ADA accommodation request form in May of 2011.

Mr. Clink provided OHSU the name of OHSU family nurse practitioner Linda Lallande, whom Mr. Clink advised should be contacted to determine his eligibility for ADA accommodations. Ms. Lallande's assessment indicated that Mr. Clink may be unable to perform some of the essential functions of his job. Mr. Clink voluntarily supplied the second opinion of OHSU physician assistant Ella Clark-Nicholson, who concluded on June 30, 2011, contrary to Ms. Lallande and despite management observations of Mr. Clink experiencing back pain, that Mr. Clink could perform the essential functions of his position without accommodation. Ms. Clark-Nicholson, however, agreed that Mr. Clink would benefit from a position requiring less manual labor.

Mr. Clink resumed his Property Specialist 3 position at OHSU, but OHSU management continued to observe Mr. Clink in severe pain while working. Because of this, OHSU management was concerned about Mr. Clink's ability to perform the essential functions of his job.[2] The various reports of Mr. Clink's performance at work reveal that his medical conditions manifested in an apparent difficulty to perform his job responsibilities.

Following these observations, Ms. Wong placed Mr. Clink on paid administrative leave between July 13 and August 26, 2011, pending an independent fit-for-duty evaluation to be financed by OHSU.[3] Physical therapist Larry Andes conducted the independent evaluation on August 18 and 19, 2011. Mr. Andes determined that Mr. Clink was unable to perform the essential functions of the Property Specialist 3 position.

After Mr. Andes determined that Mr. Clink was unable to perform the essential functions of his position, OHSU placed Mr. Clink on FMLA leave on August 25, 2011. On September 9, 2011, Mr. Clink met with Ms. Wong, AAEO Director Michael Tom, and union representative Sarah Cinnamon. The three notified Mr. Clink that he would remain on block, or continuous, FMLA leave, but would be terminated after this leave was exhausted unless he provided a fit-forduty certification or could perform his essential job functions.[4]

Mr. Clink never provided OHSU a fit-for-duty certification or any documentation that indicated that Mr. Clink was otherwise fit for duty. Mr. Clink's FMLA leave exhausted October 26, 2011. Because OHSU originally projected that Mr. Clink's FMLA leave would end in November of 2011, his Property Specialist 3 position was held open until November 22, 2011. Mr. Clink is considered to have resigned from OHSU on that date. Mr. Clink has made some attempts to gain other employment at OHSU, but he has not been hired for any other position.

DISCUSSION

Mr. Clink's remaining claims allege violations of the FMLA and wrongful discharge based on the exercise of his FMLA rights. OHSU argues that Mr. Clink's FMLA claim is properly construed as an interference claim and that OHSU is entitled to summary judgment. OHSU also argues that Mr. Clink's wrongful discharge claim ...


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