United States District Court, D. Oregon
Daniel J. Snyder, Carl Lee Post, Cynthia J. Gaddis, Portland, OR, Attorneys for plaintiff.
Kim E. Hoyt, Lucas W. Reese, Garrett Hemann Robertson P.C., Salem, OR, Attorneys for defendant.
OPINION AND ORDER
ANN AIKEN, Chief District Judge.
Defendant Lincoln County School District moves for summary judgment on plaintiff Douglas Rider's claims pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, defendant's motion is granted in part and denied in part.
In April 1989, defendant hired plaintiff as a maintenance worker. In October 1989, defendant promoted plaintiff to his current position as a lead carpenter. In 2008, plaintiff injured his back in a non-work related incident. He took medical leave and did not file a workers' compensation claim.
On March 18, 2010, plaintiff injured his back again while performing a roofing project for defendant, which he reported to his supervisor, Tim Kaufman, that same day. Plaintiff sought immediate medical treatment. On April 12, 2010, plaintiff completed a workers' compensation report, signed by the supervisor of personnel services in human resources, Silvia Danielson. Ms. Danielson expressed that defendant's director of support services, Richard Belloni, was frustrated with the timing of plaintiff's injury because it coincided with spring break, a time during which the school district engaged in many maintenance projects. According to Ms. Danielson, Mr. Belloni said that he would fire plaintiff if he could.
In November 18, 2010, plaintiff's doctor, Jerry Flaming, D.O., released him to light duty work with the following restrictions: no climbing ladders, no lifting more than 15 pounds, and no repetitive work involving lower back activity. Pursuant to its written policy, defendant looked for light duty work for that would allow plaintiff to return to work early with these documented work restrictions. Because there was no such light duty work available, Mr. Belloni instructed plaintiff to take medical leave until he could perform all the essential functions of his job. On December 23, 2010, Mr. Belloni responded to plaintiff's inquiry about the requirement that he be 100% capable of performing all job functions before returning to work, explaining "we need a full time employee who can perform the required tasks that the job description calls for." Rider Decl. Ex. 5.
Because he was still experiencing pain, plaintiff consulted a neurosurgeon, Darrell C. Brett, M.D., on February 16, 2011. Dr. Brett took plaintiff completely off work and notified Dr. Flaming that he needed surgery. On March 1, 2011, Dr. Brett provided a note to Mr. Belloni informing him of plaintiff's off-work status and scheduled surgery. Upon receiving this information, Mr. Belloni told plaintiff that he wanted to hire someone new to replace him. Plaintiff sent an email to defendant's employee benefits coordinator, Sharon Rodgers, complaining of discrimination and retaliation in relation to his workers' compensation claim. Ms. Rogers forwarded plaintiff's complaint to Ms. Sholty.
On April 1, 2011, Dr. Brett performed a discectomy on plaintiff and, on April 11, 2011, issued a work release that limited him to lifting no more than five pounds and performing repetitive activity for more than two hours. On May 24, 2011, Dr. Brett increased the amount plaintiff could lift to 25 pounds. On August 31, 2011, Dr. Brett again increased the amount plaintiff could lift to 50 pounds. On September 2, 2011, plaintiff sent a letter to defendant requesting that he be allowed to return to work in light of Dr. Brett's August 31 work release.
Plaintiff returned to work September 6, 2011. He reiterated at that time that he was released to work with the restriction that he could not lift over 50 pounds. Plaintiff explained to Ms. Sholty and Mr. Belloni that he had a disability but could nonetheless perform his job with accommodations. Accordingly, plaintiff requested a lift or the assistance of another employee when he needed to lift over 50 pounds. Mr. Belloni told plaintiff that the these accommodations were unreasonable and requested that Dr. Brett complete a fitness for duty questionnaire, including an assessment of plaintiff's ability to perform certain essential job functions. Plaintiff refused to have Dr. Brett fill out this questionnaire and instead insisted on returning to work with the accommodations he previously requested.
On September 7, 2011, plaintiff wrote a letter to Mr. Belloni and Ms. Sholty stating that he did not think they were making an effort to accommodate his disability. On September 14, 2011, plaintiff presented Mr. Belloni with a new work release from Dr. Brett indicating a permanent work restriction of no lifting or carrying more than 50 pounds. Dr. Brett wrote on the form "try to have equipment available to assist with lifting over 50 pounds." Sholty Decl. Ex. 9. On October 3, 2011, Mr. Belloni informed plaintiff he was going to hire a replacement until he could return to work with no restrictions. Approximately six months later, in April 2012, plaintiff presented Mr. Belloni with another work release from Dr. Brett indicating a permanent work restriction of no lifting or carrying more than 50 pounds.
On May 4, 2012, plaintiff met with Mr. Kaufman, Ms. Sholty, and Mr. Belloni about his need for workplace restrictions. Plaintiff received a list of his duties as lead carpenter that required lifting more than 50 pounds. Plaintiff stated that he could lift over 50 pounds occasionally and could return to full duty work. Plaintiff again requested a lift or help from co-workers, as well as the ability to take occasional breaks beyond those already permitted. Mr. Belloni and Ms. Sholty declined plaintiff's proffered accommodations as unreasonable, pointing out that a lift would be inadequate to assist him with many of the job duties that required lifting more than 50 pounds. Ms. Sholty suggested reducing plaintiff's hours or pay, or placing him in a lower job classification. Plaintiff rejected these suggestions and instead requested that an ergonomic expert from the Occupational Safety and Health Association evaluate his job tasks and abilities; Mr. Belloni and Ms. Sholty denied this request. On May 8, 2012, plaintiff reported to Ms. Sholty that Mr. Belloni told him "we have accommodated you all this time already and we do not have the man power or money to give you help." Rider Decl. Ex. 10.
In a May 10, 2012, meeting with Mr. Belloni, Ms. Sholty, Mr. Kaufman, and a union representative, plaintiff repeated his request for accommodations. At that time, plaintiff indicated that he was medically stationary with a permanent partial disability. Ms. Sholty requested more involvement from plaintiff's doctor to determine what accommodations were necessary. She again gave plaintiff the list of job duties for Dr. Brett to review, explaining that defendant could not provide accommodations without a specific assessment of job tasks from a doctor.
On May 30, 2012, plaintiff went to Dr. Brett. Based on his review of plaintiff's job tasks, Dr. Brett recommended that plaintiff wear a back brace for support and use common sense to avoid further injury. As such, Dr. Brett wrote a new work release to defendant stating that plaintiff had no workplace restrictions. That same day, Dr. Brett sent another report to SAIF reflecting that plaintiff could perform his current position with the following restrictions: use common sense and only occasional lifting of more than 50 pounds. He did not furnish a copy of the SAIF report to either plaintiff or defendant.
Plaintiff subsequently provided Mr. Belloni with Dr. Brett's May 30 complete release and stated there was no part of his job that he could not perform. He did not request further accommodations until being assigned a roofing project on September 17, 2012, at which point he informed Mr. Kaufman that his back was hurting and requested assistance. Mr. Belloni and Mr. Kaufman indicated that they did not understand why plaintiff would need accommodation when he had been released to work without restrictions. Mr. Belloni called Ms. Sholty to confirm that the most recent work release did not articulate any limitations.
On September 20, 2012, Ms. Sholty informed plaintiff that he had been mistakenly overpaid for his sick leave and requested repayment of $2, 400. On September 21, 2012, plaintiff met with Mr. Belloni and Ms. Sholty, and presented them with a letter stating that he felt threatened. Plaintiff brought a union representative, as well as Dr. Brett's May 30 SAIF report, which he had received from his workers' compensation attorney. Mr. Belloni accused plaintiff of lying about his capacity to work because he interpreted the SAIF report as inconsistent with Dr. Brett's other May 30 report. As a result, Mr. Belloni suspended plaintiff pending an investigation. On September 24, 2012, plaintiff sent a letter to school superintendent Tom Rinearson complaining of discrimination. Plaintiff returned to work September 26, 2012.
On October 1, 2012, plaintiff met with Ms. Sholty, Mr. Belloni, Mr. Kaufman, and a union representative. Ms. Sholty informed plaintiff that defendant was considering disciplining him for misrepresenting his disability and withholding Dr. Brett's other May 30 report. They told plaintiff to see Todd Lewis, M.D., for a fitness for duty evaluation; the union representative verified that this suggestion was in accordance with the parties' collective bargaining agreement. Thereafter, the investigation was ...