United States District Court, D. Oregon
David D. Park, ELLIOT & PARK, Portland, OR, Megan R. Lemire, LEMIRE & HIRANO, PC, Portland, OR, Attorneys for Plaintiff.
Karen L. O'Connor, Melissa J. Healy, STOEL RIVES, LLP, Portland, OR, Attorneys for Defendant.
OPINION & ORDER
MARCO A. HERNNDEZ, District Judge.
Plaintiff Jaimee Atwood brings this employment discrimination action against her former employer, Defendant PCC Structurals, Inc. Plaintiff brings claims under state and federal law, alleging discrimination based on use of family medical leave, religion, disability, and whistleblower status. Plaintiff also brings claims of retaliation and wrongful discharge. Defendant moves for summary judgment on all claims.
The Court held oral argument on Defendant's motion for summary judgment on May 13, 2015. For the reasons explained below, Defendant's motion is granted as to Plaintiff's claims of discrimination based on religion, disability, and retaliation pursuant to ORS 659A.230. Defendant's motion on Plaintiff's claim of wrongful discharge is granted except to the extent the claim is premised upon Defendant terminating Plaintiff for asserting her rights under the Oregon Family Leave Act. Defendant's motion is denied as to all of Plaintiff's other claims.
I. Defendant's Leave and Attendance Policies
Defendant PCC Structurals, Inc. is an Oregon corporation that "makes large, complex structural investment castings for aircraft." Compl. ¶ 7; Def.'s Mot. 2. Defendant's "Family Medical and Military Leave Policy" provides leave under the Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654; and the Oregon Family Leave Act (OFLA), ORS 659A.150-186. O'Connor Decl. Ex. 2 at 51. Absences under these statutes are collectively called Family Medical Leave (FML) in Defendant's policy. Id.
An employee seeking FML must obtain a "medical certification" from her health care provider and submit a "Request for Leave Form" for each absence related to that medical certification. Schwanz Decl. ¶ 3. Medical certifications for chronic conditions, once completed by the employee's health care provider, are typically good for six months, although Defendant occasionally seeks clarification of the information in the medical certification. Id. at ¶ 4. Defendant responds to each request for leave in writing, notifying an employee whether or not the request is approved, pending, or denied. Id. at ¶ 5. The response letter informs the employee: "You are entitled to appeal this decision. Appeals must be completed and returned to Human Resources within seven (7) days of this letter." See, e.g., O'Connor Decl. Ex. 2 at 56.
Defendant's policy on "Attendance and Punctuality" states that Defendant reviews an employee's attendance record for the prior 365 days. O'Connor Decl. Ex. 2 at 34. If either a partial absence occurs (working at least half of the scheduled work shift, but not the full shift) or an individual is tardy, "half an absence day is received." Id. An employee must notify her supervisor of any absence or tardiness within the first hour of the start of the employee's shift, unless she is too incapacitated to make the call. Id. "Failure to provide timely notification will result in a double absence day (full or partial as applicable)." Id. "An employee will be terminated if the employee has eleven (11) absence days (that are not excused or arranged) in a 365 day period." Id. Defendant refers to absence days as "occurrences" or "points." In other words, having 11 or more occurrences is grounds for dismissal. Id.
II. Plaintiff's Work History with Defendant
Plaintiff began working for Defendant in approximately 1988 as a wax cleaner and wax assembler. Pl. Dep. 18:23-19:7, 19:20-22. In approximately 2008, Plaintiff became a welding "lead, " a position she held until it was eliminated in July 2012. Compl. ¶ 15; Pl. Dep. 20:12-14. From July 2012 through her termination in April 2013, Plaintiff worked as a welder. Id.
Prior to August 2012, Plaintiff worked a Monday-Friday schedule. Pl. Decl. ¶ 32. She occasionally was scheduled to work mandatory overtime on Sundays. Id. Plaintiff was often absent when she had to work on Sundays. Defendant did not challenge her use of FML on those days. Id; Pl. Decl. ¶ 22.
Beginning in August 2012, Defendant assigned Plaintiff to work the day shift on Sunday-Thursday. Compl. ¶ 15. In February 2013, Plaintiff returned to a Monday-Friday schedule. Atwood Decl. Ex. C. Even after returning to a Monday-Friday schedule, Plaintiff was still required at times to work mandatory overtime on Sundays. Atwood Decl. Ex. C.
In late March or early April 2013, Kelly Rhodes, Employee Relations Specialist III for Defendant, received a notification that Plaintiff had accrued 11 occurrences during the 365 day period ending on March 14, 2013. Rhodes Decl. ¶ 20. On April 10, 2013, Plaintiff was suspended for violating the attendance policy. Rhodes Decl. Ex. 11. On April 15, 2013, Defendant fired Plaintiff. Compl. ¶ 24.
III. Plaintiff's Absences and Use of FML
Plaintiff first requested FML in mid-2008 for anxiety and stress. Pl. Decl. ¶ 2; Pl. Dep. 56:22-25. Over the next several years, Plaintiff submitted medical certifications and requests for FML at various times. See, e.g., Plaintiff's Medical Certifications from June 2011, Smith Decl. Ex. A; and December 13, 2011, Smith Decl. Ex. B. Plaintiff was approved many times for intermittent use of FML on Sundays (when she was scheduled for mandatory overtime) based on these medical certifications. Compl. ¶ 13. According to Plaintiff, she took leave on Sundays pursuant to her health care provider's orders to attend church as necessary for Plaintiff's serious medical condition. Id. at ¶ 14. Plaintiff states that attending church and being active in the church "significantly reduced my anxiety/stress and significantly reduced my use of prescription medications." Pl. Decl. ¶ 4. In 2012, Plaintiff became a baptized Christian and began regularly attending church services on Sunday, assisting at church on Sunday, and regularly participating in church life groups. Pl. Decl. ¶ 3.
In July 2012, Plaintiff submitted to Defendant a third medical certification completed by her health care provider, Dr. Erickson. Rhodes Decl. Ex. 1. The certification stated that Plaintiff suffered from acute anxiety and stress. Id. at 2. Dr. Erickson estimated that Plaintiff would be incapacitated due to her medical condition 4-5 days a month. Id. at 3. He stated that Plaintiff would be "unable to stay at work due to anxiety flare-ups." Id. He stated that the probable duration of her condition was "unknown." Id. at 2. Dr. Erickson's certification did not say anything about Plaintiff's ability or inability to work on Sundays. He also answered "no" to the question of whether treatment or reduced hours were "medically necessary." Id.
In August 2012, Defendant changed Plaintiff's schedule to Sunday-Thursday. Compl. ¶15. Plaintiff began using more FML in order to be off on Sundays. Plaintiff was absent every Sunday in August and September, 2012. Rhodes Decl. ¶ 5. Plaintiff also missed additional days during those months-she requested a total of seven days of FML in August and eight days of FML in September. Rhodes Decl. ¶ 5. Plaintiff told Ms. Rhodes that she was using her FML to attend church for her stress and anxiety. Id.
Plaintiff's string of Sunday absences cast doubt on her stated reasons for FML because nothing in the medical certifications indicated any correlation between her health condition and the manifestation of symptoms on any particular day of the week.
On or about October 7, 2012, Ms. Rhodes verbally informed Plaintiff that Defendant would no longer grant her FMLA/OFLA leave for anxiety and stress on Sundays. Pl. Decl. ¶ 11. Defendant did not ask Plaintiff to obtain a recertification nor did Defendant inform Plaintiff that the July 2012 medical certification was rejected. Id.
In several letters to Plaintiff written on October 8, 2012, Defendant informed Plaintiff that her Requests for Leave from September 22, 23, and 30, 2012, were denied retroactively. O'Connor Decl. Ex. 2 at 72-73. The letters stated: "Our records indicate that you are ineligible for FML because your request was ineligible." Id. An additional letter notified Plaintiff that her request for FML on October 7, 2012 was "conditionally designated as FML" but that Plaintiff was required to "provide the completed insufficient documentation" before October 22, 2012. Id. at 75.
Plaintiff obtained a new medical certification from Dr. Erickson and gave it to Ms. Rhodes and Ms. Schwanz, Defendant's employee who administers the company's FML policy and program. Pl. Decl. ¶ 11; Schwanz Decl. ¶ 2. The new certification, which Defendant received on October 11, 2012, stated that Plaintiff could only work a Monday-Friday daytime shift schedule. Rhodes Decl. Ex. 2 at 2. Dr. Erickson further stated that:
Jaimee has [sic] baptized and is actively involved in church activities which is helping her control her anxiety without medication. Missing her involvement in her church activities will cause increase [sic] anxiety and stress. She should not work Sundays.
In an undated letter sent in late October 2012, Ms. Rhodes sought clarification from Dr. Erickson regarding Plaintiff's inability to work on Sundays. Rhodes Decl. Ex. 3. Specifically, Ms. Rhodes asked why Plaintiff's absence from work on weekends was "medically necessary." Id. According to Plaintiff, Ms. Rhodes did not inform Plaintiff that she was going to contact Dr. Erickson, nor had Plaintiff given Ms. Rhodes written permission to contact Dr. Erickson. P. Decl. ¶ 12. Dr. Erickson responded on October 29, 2012, stating: "Jamie can indeed work on Saturdays but she is involved in multiple church activities on Sundays and cannot work at all on Sunday." Rhodes Decl. Ex. 4.
On November 7, 2012, Ms. Rhodes met with Plaintiff and told her that Defendant was denying Plaintiff FMLA/OFLA leave on Sundays for several prior dates. Pl. Decl. ¶ 13. Plaintiff states that this was the first she heard of Ms. Rhodes communicating with Dr. Erickson. Id. Ms. Rhodes provided Plaintiff with a memorandum to summarize their November 7 conversation. Rhodes Decl. Ex. 5. The memorandum stated:
The purpose of this Memorandum is to summarize our discussion on November 7, 2012.
We have reviewed the completed medical certification provided to us by your health care provider along with the additional information dated 10/29/2012, based on this information we are unable to approve your requests for FML leave on 10/7, 10/21, 10/28, and 11/4. Currently you have twelve unexcused absence days. Going forward, if you have any additional unexcused absence days, your employment with PCC will be terminated.
In addition, we also discussed your request for a religious accommodation. We instructed you to work with your leadership staff on coming to an agreement for your shifts on Sundays. Since your church offered multiple service times on Sundays some of the options we proposed were:
- Attend the early morning session and come to work after the service ended
- Come in at your regularly scheduled start time, leave to attend church, and then come back to finish your shift
- Come in at your regularly scheduled start time, work and then attend the evening service
Rhodes Decl. Ex. 5. According to Plaintiff, she discussed these options with Dr. Erickson and he "did not approve any of these options for my working on Sundays." Pl. Decl. ¶ 31.
On November 8, 2012, Plaintiff delivered a letter to Ms. Rhodes from Dr. Erickson. The later stated:
As I stated in the FMLA dated 10/9/2012 Jaimee suffer's [sic] from anxiety. It [sic] medically necessary for her to be off work on Sunday to attend church and associated social activities. This is extremely valuable in control of [sic] her anxiety and decreases the amount of medication that she requires to control her ...