United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
JANICE M. STEWART, Magistrate Judge.
Plaintiff, Dora Doby ("Doby"), is a former preschool teacher at Valley Catholic Early Learning School ("VCELS"). Doby filed this action against VCELS and Sisters of St. Mary of Oregon ("SSMO") Little Flower Development Center, an alternate business name for VCELS,  and against SSMO Ministries Corporation, the parent company of SSMO Little Flower Development Center. First Amended Complaint (docket #25), ¶ 10.
Doby's First Amended Complaint alleges the following eight claims: (1) two federal claims under the ADA, 42 USC § 12112 (First Claim), and the Family Medical Leave Act ("FMLA"), 29 USC § 2615(a)(2), (b) (Sixth Claim); (2) four claims for violation of state discrimination laws under ORS 659A.030(f), 659A.112, 659A.183, and 659A.199 (Second, Third, Fourth, and Fifth Claims); and (3) two common law claims for intentional infliction of emotional distress (IIED) and wrongful discharge (Seventh and Eighth Claims). At oral argument, Doby withdrew her IIED claim (Eighth Claim), and part of her discrimination claims (First and Second Claims) premised on being "regarded as" having a disability. All remaining claims derive from alleged discrimination and retaliation based on Doby's disability of Obsessive Compulsive Disorder ("OCD") and her activities as a whistleblower, including interference with her use of approved FMLA leave and eventual termination.
This court has jurisdiction over the federal claims under 28 USC § 1331 and supplemental jurisdiction over the remaining claims under 28 USC § 1367(a). Doby has satisfied all administrative prerequisites by filing a complaint with the Oregon Bureau of Labor and Industries, co-filing with the Equal Employment Opportunity Commission ("EEOC"), and obtaining a right-to-sue notice from each agency. First Amended Complaint, ¶ 7; Leachman Decl. (docket #61), Exs. 3-6. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c).
Defendants filed a Motion for Summary Judgment (docket #57), seeking to dismiss all claims. After the hearing on the motion, this court entered an Order granting the motion as to the Fifth and Sixth Claims (Oregon Family Leave Act ("OFLA") and FMLA Retaliation) and part of the First and Second Claims (Discrimination Based on Disability) alleging a failure to make reasonable accommodations, deferring the motion for further briefing as to the Seventh Claim (Wrongful Discharge), and otherwise denying the motion (docket #81). This Opinion explains the basis for that ruling and also grants summary judgment to defendants against the Seventh Claim.
Summary judgment may be granted if "no genuine issue" exists regarding any material fact and "the moving party is entitled to judgment as a matter of law." FRCP 56(c). The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must "go beyond the pleadings" and designate specific facts showing a "genuine issue for trial." Id at 324, citing FRCP 56(e). The court must "not weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial." Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir 1999) (citation omitted). A " scintilla of evidence, ' or evidence that is merely colorable' or not significantly probative, '" does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir 1989) (citation omitted). The substantive law governing a claim or defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir 2000) (citation omitted). The court must view the inferences drawn from the facts "in the light most favorable to the nonmoving party." Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir 2011) (citations omitted).
Doby was a preschool teacher at VCELS (also referred to as Little Flower) from 2008 until her termination on May 23, 2012. First Amended Complaint, ¶¶ 19, 65. Doby suffers from OCD, and defendants had granted her FMLA leave to accommodate those days on which her OCD rituals made her late for work or were so severe she stayed home. Id, ¶¶ 36-37. In late 2011, Doby began reporting harassment by an anonymous coworker to Joyce Howard ("Howard"), Little Flower's Human Resources Director. Id, ¶ 39(c); Rohny Decl. (docket #65), Exs. 19, 25. The accused harasser was Cleta Woods ("Woods"). First Amended Complaint, ¶ 46.
On May 3, 2012, Woods told Doby that one of her students was a member of the Church of Jesus Christ of Latter-day Saints ("Mormon"), an association that triggered Doby's OCD anxiety. Id, ¶ 47. Moments before, this student had hugged Doby. Id. Doby finished her shift, but later emailed Howard that the incident had triggered her OCD and identified Woods as her harasser. Howard Decl. (docket #59), Ex. 1, p. 1; Rohny Decl., Ex. 20. Doby wrote two more emails to Howard that evening, expressing the extent of her OCD fears. Howard Decl., Ex. 1. Howard forwarded the first email to Robert Weber ("Weber"), President of Little Flower, informing him of the school's duty to respond to Doby's accusations of harassment. Rohny Decl., Ex. 20. Defendants placed Doby on paid administrative leave for the period starting May 4, 2012, until her termination. Weber Decl. (docket #58), ¶ 11.
In a meeting on May 10, 2012, Weber and Howard told Doby that she was required to undergo a fitness-for-duty evaluation with a psychologist chosen by defendants, Dr. Donna Wicher, to determine if she could safely perform her job. Howard Decl., ¶ 15. After learning about the location of Dr. Wicher's office, Doby asked to move the evaluation to a location that did not trigger her OCD and to a different doctor of her choice. Id, Exs. 3-4. Defendants rescheduled the appointment with Dr. Wicher to May 16 and also made other offers for appointments at other locations, to allow a support person to attend the evaluation, to change the timing of the appointment, and to pay for a cab to and from the appointment. Id, Exs. 5, 8. On May 14, Doby again asked defendants that she be allowed to choose the doctor to conduct the evaluation and, if necessary, pay for it. Id, Ex. 10. On May 15, Doby's attorney informed defendants the next day that Doby would not be attending the rescheduled evaluation. Id, Ex. 11. Doby provided alternative names which defendants declined, citing their right to choose the evaluator. Weber Decl., Ex. 10. On May 23 Doby refused to attend the third appointment with Dr. Wicher rescheduled for May 26 and requested an evaluation with Wildwood Psychiatric Resource Center. Id, p. 10. Based on her failure to cooperate with the fitness-for-duty evaluation proceed by attending the scheduled appointment with Dr. Wicher, defendants fired her. Id, ¶ 20 & Ex. 12.
I. Evidentiary Objections
Defendants raise evidentiary objections based on improper lay testimony, inadmissible hearsay, lack of authentication, timeliness, relevancy, and conclusory language. For the following reasons, all objections are denied.
First, the content, not the form, determines the admissibility of evidence at the summary judgment stage. FRCP 56(c)(2) ("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."); Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir 2003); see also Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir 2001) ("To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56."). Doby has presented testimony that can be authenticated and admitted as non-hearsay or under a hearsay exception at trial. Also, Doby has corrected all authentication issues regarding depositions with the filing of her Sur-Reply and accompanying declarations (dockets ##77-79).
Second, the court has discretion to disregard untimely opposition materials and finds that a one-day delay did not prejudice the defendants or upset court procedures.
Third, "relevance objections are redundant... and statements in declarations based on speculation or improper legal conclusions, or argumentative statements, are not facts and likewise will not be considered on a motion for summary judgment. Objections on any of these grounds are simply superfluous in this context." Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1119 (ED Cal 2006).
Thus, for the purposes of this motion, the court will consider all evidence to the extent it is capable of being admitted in the proper form at trial.
II. Discrimination on the Basis of Disability (First and Second Claims)
The First and Second Claims allege that defendants discriminated against Doby in violation of the ADA and ORS 659A.112 law by: (1) denying her reasonable accommodations for her disability; and (2) firing her when she refused to undergo a fitness-for-duty evaluation as a condition of her employment. Defendants are entitled to summary judgment on the first ground alleging that she was unlawfully denied reasonably accommodations.
A. Threshold Requirements
The ADA prohibits discrimination by specific entities, including private employers, against individuals with disabilities and, in some instances, against individuals perceived to be disabled. Specifically, "[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 USC § 12112. To seek protection under the ADA, Doby must show both that she is disabled and a "qualified individual." Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir 2001) (citation omitted). In federal court, the standard for establishing a disability discrimination claim under Oregon law is identical to that used in the ADA. Snead, 237 F.3d at 1087, citing ORS 659.449 (Oregon's discrimination laws "shall be construed to the extent possible in a manner that is consistent with any similar provision of the federal Americans with Disabilities Act of 1990, as amended").
Defendants first argue that Doby is not disabled under the ADA or Oregon law. The ADA defines an individual with a disability as someone who: (1) has a physical or mental impairment that substantially limits one or more of the individual's major life activities; (2) has a record of the impairment; or (3) is regarded as having an impairment. 42 USC §12102(2)(A). Only Doby's disability claims under the "actual disability" prong remain.
The "actual disability" prong requires: (1) a physical or mental impairment; (2) that substantially limits; (3) one or more of the individual's major life activities. An impairment is a disability within the meaning of this section if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." 29 CFR § 1630.2 (j)(1)(ii). In other words, the individual is "[s]ignificantly restricted as to the condition, manner, or duration under which an individual can perform a major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 CFR § 1630.2 (j). The EEOC Regulations list OCD as an example of a per se disability - an impairment that will "virtually always be found to impose a substantial ...