United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. McSHANE, District Judge.
Between May 2008 and October 2009, and March 2010 and November 2010, plaintiff Larry Alvarez worked for defendant as a Territory Sales Manager (TM) in territory 10413 (Corvallis territory). On November 1, 2010, plaintiff was electrocuted during a service call. As a result, plaintiff filed a workers' compensation claim and took a paid leave of absence. Plaintiff returned temporarily between April and May 2010, but required an additional leave due to ongoing health concerns relating to his injury. On November 7, 2011, plaintiff obtained a medical release and demanded reinstatement. In a series of responsive letters and telephone conversations, defendant informed plaintiff that his position had been filled, but that he could apply for alternative non-TM positions in the region. Defendant instructed plaintiff he would be terminated on December 12, 2011 if he failed to apply for and obtain an alternative position within the company. After receiving a letter from plaintiffs attorney, defendant offered plaintiff a different TM position in the coastal territory. Plaintiff accepted defendant's offer and worked in that position from January until June 2012.
This Court is asked to consider: (1) whether defendant retaliated against plaintiff under ORS § 659A.040(1) and (2) whether defendant violated plaintiffs right to reinstatement under ORS § 659A.043. Because a fuller record will afford a more substantial basis for decision and the existing record supports conflicting material inferences related to pretext under the McDonnell Douglas  framework, this Court finds that it cannot determine whether defendant violated ORS § 659A.040(1). Because plaintiffs former position as TM in the Corvallis territory was "available" when he demanded reinstatement, this Court finds that defendant violated ORS § 659A.043. Thus, defendant's motion for summary judgment, ECF No. 24, is DENIED, and plaintiffs motion for partial summary judgment, ECF No. 31, is GRANTED IN PART and DENIED IN PART.
PROCEDURAL AND FACTUAL BACKGROUND
This action arises out of alleged retaliatory actions and a violation of plaintiffs reinstatement right. Plaintiff began working for defendant as a Senior Service Specialist on November 9, 1998. Aff. of Tina A. Syring-Petrocchi 3, 7, 75, ECF No. 28-1. Plaintiff was subsequently promoted to an Account Executive. Id. at 3.
Between September 1999 and February 2004, plaintiff filed four workers' compensation claims. See Aff. of Joanne Jirik Mullen 2, ECF No. 27-2 (claim for pulled muscle occurring on September 30, 1999); Aff. of Joanne Jirik Mullen 2, ECF No. 27-3 (claim for finger laceration occurring on March 5, 2001); Aff. of Joanne Jirik Mullen 2, ECF No. 27-4 (claim for inhalation of bleach fumes occurring on April 11, 2001); Aff. of Joanne Jirik Mullen 2, ECF No. 27-5 (claim for torn meniscus occurring on February 7, 2004). Plaintiffs injuries occurring in September 1999 and February 2004 both resulted in leaves of absence. Id. at 2, ECF No. 27-2; id. at 2, ECF No. 27-5.
On or about November 1, 2006, plaintiff was terminated because his position had been eliminated. Aff. of Tina A. Syring-Petrocchi 4, 7, ECF No. 28-1.
On March 21, 2007, plaintiff was rehired by defendant as a Territory Sales Manager in Training (TMIT). Id. at 5, 72. As a TMIT, plaintiff learned "all aspects of field sales, " e.g., equipment installation and vehicle maintenance. Id. at 6.
On or about May 2008, plaintiff was promoted to TM in the Corvallis territory. Id. at 9-10. As a TM, plaintiff was responsible for selling and servicing customer dish washing machines within his territory, and was eligible to receive commissions for expanding business within his territory. Id. at 9; id. at 3, ECF No. 28-4.
On October 24, 2009, plaintiff injured his back while reaching into a dishwasher during a service call. Aff. of Joanne Jirik Mullen 4, ECF No. 27; Aff. of Tina A. Syring-Petrocchi 19, ECF No. 28-1. Plaintiff took a leave of absence, Aff. of Joanne Jirik Mullen 2, ECF No. 27-9, and filed a workers' compensation claim, Aff. of Joanne Jirik Mullen 2, ECF No. 27-10. However, this claim was denied by defendant's insurance carrier, Aff. of Joanne Jirik Mullen 2, ECF No. 27-11, and plaintiff withdrew his appeal with the Oregon Workers' Compensation Board, Aff. of Tina A. Syring-Petrocchi 19-21, ECF No. 28-1.
On March 29, 2010, plaintiff returned to work as TM in the Corvallis territory. Aff. of Joanne Jirik Mullen 2, ECF No. 27-12; see also Aff. of Tina A. Syring-Petrocchi 21, ECF No. 28-1.
On November 1, 2010, plaintiff was electrocuted while servicing a customer's equipment during a service call. Aff. of Tina A. Syring-Petrocchi 22-23, ECF No. 28-1. Plaintiff was transported via ambulance to the emergency room and hospitalized for approximately six hours. Id. at 23-24. The following day, plaintiff filed a workers' compensation claim and went on medical leave. Aff. of Joanne Jirik Mullen 5, ECF No. 27; Aff. of Joanne Jirik Mullen 2, ECF No. 27-13.
On April 1, 2011, plaintiff returned to work as TM in the Corvallis territory. Id. at 6, ECF No. 27; id. at 2, ECF No. 27-16. On May 10, 2011, plaintiff returned to medical leave because of ongoing concerns relating to his electrocution. See id. at 6, ECF No. 27; id. at 2, ECF No. 27-17.
In June 2011, defendant promoted Scott Henderson to TM and assigned him the Corvallis territory. See Aff. of Tina A. Syring-Petrocchi 10-13, ECF No. 28-4; Aff. of Tina A. Syring-Petrocchi 1-5, ECF No. 28-5; Decl. of Counsel 7, 21, ECF No. 33-3.
On November 7, 2011, plaintiff informed defendant that he had obtained a medical release to return to regular duty and demanded reinstatement. Decl. of Counsel 5-7, ECF No. 33-3; Decl. of Pl. 2, ECF No. 34. In response, defendant informed plaintiff that his position had been filled and that there were no open TM territories in the region. Aff. of Tina A. Syring-Petrocchi 37-39, ECF No. 28-1.
In a letter dated November 14, 2011, defendant confirmed receipt of plaintiffs medical release, but reiterated that it did "not have a current opening in the area in which you are located." Decl. of Counsel 16, ECF No. 33-3. That letter further provided, in relevant part:
Enclosed you will find a list of open positions within Oregon. More information about these positions and how to apply can be found on our website at www.ecolab.com/careers. You may also contact me directly to discuss potential opportunities. If you identify a position that would require you to relocate, any such costs would be at your own expense. If you are interested and meet the qualifications, please apply for the open position(s) as directed on the job listing and then please let me know which one(s) are of interest to you.
In the event you do not identify other positions for which you wish to apply, you will be eligible for severance benefits per the Ecolab severance plan. Information regarding severance options will be mailed to you at a later date.
In a three-page letter dated November 30, 2011, plaintiff received a severance and release notice. That letter provided, in part: "[a]s we discussed, there are no available positions within your geographic location. Your separation date will be December 12, 2011. This letter explains your severance pay and separation benefits." Id. at 13-15.
In a one-page letter dated December 15, 2011, plaintiff received notice that his potential release of claims benefits had been downwardly modified from 10.5 weeks to 6.5 weeks. Id. at 12. Plaintiff was given twenty-one days to sign the enclosed release. Id.; see also Aff. of Tina A. Syring-Petrocchi 90-93, ECF No. 28-1 (release of claims form).
On December 16, 2011, plaintiffs attorney, Larry Linder, faxed defendant a letter identifying and invoking plaintiffs right to reinstatement under ORS § 659A.043(1). Decl. of Counsel 8-11, ECF No. 33-3.
On or about December 17, 2011, Jowita Haugen, defendant's Interim Human Resources Representative, contacted plaintiff and informed him that a TM position had become available, but details would be forthcoming. Aff. of Tina A. Syring-Petrocchi 47, ECF No. 28-1.
On or about December 19, 2011, Haugen notified plaintiff that she would send him an offer letter with more ...