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Davis v. Tri-County Metropolitan Transportation District of Oregon

United States District Court, D. Oregon

September 8, 2014

DEBRA DAVIS, Plaintiff,

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For Plaintiff: Daniel Snyder, Carl Post, and Cynthia Gaddis, LAW OFFICES OF DANIEL SNYDER, Portland, OR.

For Defendant: Gregory E. Skillman and Kimberly Sewell, TriMet, Portland, OR.

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Michael H. Simon, United States District Judge.

Plaintiff Debra Davis (" Davis" ) asserts ten claims against her employer, Tri-County Metropolitan Transportation District of Oregon (" TriMet" ).[1] Davis alleges that TriMet: (1) failed to give her the proper veteran's preference in hiring as required under Oregon Revised Statutes (" O.R.S." ) § 408.230; (2) discriminated and retaliated against her for filing a worker's compensation claim, in violation of O.R.S. § 659A.040; (3) failed to reemploy her in a suitable position, in violation of O.R.S. § 659A.046; (4) discriminated against her because of her disability, in violation of Oregon's Rehabilitation Act, O.R.S. § 659A.103 et seq.; (5) discriminated and retaliated against her because of her race, in violation of O.R.S. § 659A.030; (6) discriminated against her because of her disability, in violation of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12112; (7) retaliated against her because she engaged in activity protected under the ADA, in violation of the ADA; (8) violated her rights under the Family and Medical Leave Act (" FMLA" ); (9) violated her rights under the Oregon Family Leave Act (" OFLA" ); and (10) wrongfully discharged

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her in violation of Oregon common law.

TriMet moves for summary judgment against all of Davis's claims. For the reasons that follow, TriMet's motion is granted in part and denied in part. TriMet's motion is granted with respect to Davis's failure to reemploy claim and wrongful discharge claim. TriMet's motion with respect to the other eight claims is largely denied, although the Court grants Defendant's motion with respect to certain alleged adverse actions and other matters, as set forth below.


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. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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." ).


This section sets forth broad, general facts relevant to the pending motion. Facts specifically relevant to a particular claim are discussed in more detail in the analysis of that claim.

A. The Parties

TriMet is a mass transit district established under O.R.S. Chapter 267. Davis is an African-American woman and a veteran. She served in the military from 1984 through 1992, when she was honorably discharged. While in the military, Davis worked in positions equivalent to, among others, a superintendent of transportation, a transportation-maintenance supervisor, a garage supervisor, and a driver supervisor.

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B. Davis's Work at TriMet

Davis began working at TriMet in July, 1993 as a Maintenance Helper. She held several positions of increasing responsibility, including as a Journeyman Mechanic, until she was promoted to Assistant Manager, Field Operations in March 2007. In July 2009, TriMet reduced its managerial workforce and laid off approximately 21 managerial and other non-union employees, including Davis. Davis was able to revert to her previous union position of Journeyman Mechanic when she was laid off from her managerial position.

Throughout her career at TriMet, Davis attended many leadership courses, training courses, and program-specific courses in her field. She obtained two Associate's degrees, a Bachelor's degree, and numerous specialized certificates in the rail and transportation fields. As relevant to this lawsuit, Davis applied for several supervisory and managerial positions at TriMet from May 2009 through March 2012. She was not hired for any of those positions.

C. Davis's Injury and Worker's Compensation Claim

On August 13, 2009, Davis suffered an on-the-job injury. She invoked the Worker's Compensation system for this injury. On August 25, 2009, she was released to work modified duty with certain restrictions. TriMet offered her certain " light duty" short term positions, some of which Davis worked at for a few days and others she declined because they were not consistent with her medical restrictions.

On November 19, 2009, Davis's worker's compensation claim was closed. TriMet determined, based on a report from Derrick H. Yoshinga, D.O., that Davis's continuing physical limitations relating to her back were caused by a pre-existing condition and not the on-the-job injury. TriMet then stopped offering Davis " light duty" work.

Davis appealed the worker's compensation denial. On April 25, 2011, an Administrative Law Judge (" ALJ" ) concluded that the November 19, 2009 denial was procedurally invalid and remanded the denial to TriMet for processing according to law. This opinion was affirmed by the Worker's Compensation Board on April 2, 2012, and by the Oregon Court of Appeals on January 23, 2014.

On February 22, 2010, Davis obtained a report from Dr. Patrick Tester, concluding that Davis's ongoing back problems were due to her on-the-job injury. Davis sought to re-open her worker's compensation claim, and on March 19, 2012, a different ALJ denied Davis's request. This decision was upheld by the Worker's Compensation Board and Davis did not appeal it to the Oregon Court of Appeals.

Davis consulted with Dr. Paul Puziss. On January 12, 2013, Dr. Puziss authored a letter in which he diagnosed Davis with facet syndrome and opined that it was caused by her workplace injury. Dr. Puziss diagnosed Davis with four different back-related problems and opined that all of them were caused by her workplace injury. Dr. Puziss further opined that Dr. Yoshinga had misdiagnosed Davis. On February 5, 2013, Davis requested TriMet accept or deny these four back conditions, claiming that they were related to her August 2009 workplace injury. TriMet denied this request and Davis has appealed that denial. That appeal is currently pending.

D. Davis's Requests for Accommodation

From November 2009 through February 2010, Davis obtained medical releases to work with restrictions and repeatedly requested that accommodations be made for

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those physical restrictions. TriMet did not engage in discussions relating to any such accommodations until February 2010, after Davis had used all of her sick leave, vacation time, and protected leave, and had begun taking unpaid leave.

In March and April 2010, TriMet scheduled an ergonomics assessment for Davis and complied with all of the recommended accommodations except the purchasing of a particular tool, which TriMet believed was covered under TriMet's tool allowance given to Davis pursuant to the labor agreement between TriMet and the union representing Davis. On March 23, 2010, Davis returned to her former position as a Journeyman Mechanic.

Davis continued to have ongoing physical restrictions and problems related to her back injury. On several occasions she requested additional ergonomic assessments and accommodations. She continued to use her available sick, vacation, and protected leave, and she took unpaid leave time when her paid leave was exhausted. TriMet regularly sent letters to Davis documenting her absences, notifying her that she was in violation of TriMet's attendance policy, and informing her that she needed to meet with her supervisors to address her absenteeism. In June, July, and September 2012, TriMet issued to Davis escalating warnings and reprimands for absenteeism. In September 2012, concerned that she would be terminated for absenteeism, Davis applied for permanent disability, and her application was accepted on October 22, 2012, with an effective date of March 12, 2012.


Davis alleges ten claims for relief and TriMet moves for summary judgment against all of them. Each claim is discussed below, in turn.

A. First Claim for Relief--Veteran's Preference

Davis alleges that TriMet failed properly to give Davis the veteran's preference points she is entitled to under O.R.S. § 408.225, et seq. (" Veteran's Preference Statute" ). TriMet argues that it was not required to give Davis veteran's preference points before January 1, 2010, because TriMet was not a " public employer" as defined by the Veteran's Preference Statute until the statute was amended, effective January 1, 2010. TriMet also argues that for the jobs to which Davis applied after January 1, 2010, TriMet properly applied the necessary veteran's preference points at one stage in the hiring process, which is all that the statute requires.

Davis responds that TriMet was a " public employer" before the January 1, 2010 amendment, and that pursuant to the statutory requirements throughout the relevant time period, TriMet was obligated, and failed, to provide Davis veteran's preference points at each stage of the hiring process. Davis argues that the Veteran's Preference Statute does not permit employers to choose only one stage of the hiring process at which to apply preference points, but that the employer must instead apply preference points at each stage of the hiring process. The Court begins its analysis by interpreting the Veteran's Preference Statute.

1. Statutory construction

The Court interprets the Veteran's Preference Statute and other relevant statutes applying Oregon statutory interpretation principles. Powell's Books, Inc. v. Kroger, 622 F.3d 1202, 1209 (9th Cir. 2010) (a federal court interpreting Oregon law " interpret[s] the law as would the Oregon Supreme Court" ...

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