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Wilson v. Providence Health & Services Oregon

United States District Court, D. Oregon

July 14, 2015


Thomas K. Doyle, Bennett Hartman Morris & Kaplan, LLP, Portland, OR, Attorney for Plaintiff.

Janine C. Blatt, Jeffrey Druckman, Druckman & Blatt, PC, Portland, OR, Attorneys for Defendant.


JOHN JELDERKS, Magistrate Judge.

Plaintiff Sondra Wilson brings this employment related action against her former employer, Providence Health & Services. Plaintiff brings claims under state and federal law alleging discrimination and retaliation based on disability, use of family medical leave, wage claims, and whistleblower status. Defendant asserts a counterclaim for attorney fees and costs. Defendant now moves for summary judgment on all of Plaintiff's claims.

This court has federal question jurisdiction over the FMLA claim pursuant to 28 USC § 1331 and 29 USC § 2617(2), and supplemental jurisdiction over the state law claims under 28 USC 1367(a).

The Court heard oral argument on July 6, 2015 and issued an Order from the bench indicating that this written Opinion and Order would follow. The Court granted Defendant's motion for summary judgment as to all of Plaintiff's claims for the reasons set forth below. In addition, on its own motion, the Court denied Defendant's counter claim for attorney fees.


Plaintiff brings six claims.

Plaintiff's First Claim alleges that Defendant interfered with her right to protected medical leave in violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-2654 by considering her use of protected medical leave as the basis for its corrective action and termination decisions.

Plaintiff brings her Second Claim pursuant to O.R.S. 441.178, alleging that Defendant retaliated against her for disclosing alleged safety violations to a public agency.

Plaintiff's Third Claim alleges that Defendant violated O.R.S. 652.355 by retaliating against her for filing a wage claim.

Plaintiff's Fourth Claim alleges disability discrimination under state law.

Plaintiff's Fifth Claim alleges interference with protected medical leave under the Oregon Family Leave Act ("OFLA"), O.R.S. 659A.150-659A.186.

Plaintiff's Sixth Claim alleges that Defendant violated O.R.S. 659A.199 by retaliating against her for reporting information she believed evidenced violations of state rules regulating nurse staffing levels.


Defendant Providence Health & Services, doing business as Providence Benedictine Nursing Center ("PBNC") provides short-term inpatient care and geriatric health care services at its nursing center in Mount Angel, Oregon. The campus houses a primary nursing center, an assisted living facility, home health agency and a short stay skilled nursing unit ("SSU"). Plaintiff, a registered nurse ("RN"), began working at PBNC as a night-shift charge nurse in the SSU in December, 2007. Following events that will be described below, Plaintiff was discharged from her employment with Defendant effective December 16, 2013. Plaintiff's termination letter is signed by PBNC Director of Nursing Tracy Thompson.

The job description for Plaintiff's position includes the principal duties of providing comprehensive resident assessments; implementing an individualized plan of care using good nursing practices; demonstrating the ability to prioritize and organize work; administering medications and treatments per physician orders; communicating the plan of care and changes to nursing staff; safeguarding resident rights as listed in the "Resident's Bill of Rights;" and completing documentation including medication sheets, progress notes, incident reports and care plans. One RN and three certified nursing assistants (CNAs") worked in the SSU during the night shifts. Another RN worked elsewhere in the facility. In November, 2013, Defendant added a licensed practical nurse ("LPN") to the SSU night shift staff.

Starting in the summer of 2011, Plaintiff applied for and was granted protected FMLA/OFLA leave for a medical issue related to her right hand. Plaintiff returned to work sometime in September, 2011 to the same position she held prior to her leave.

In a letter dated June 3, 2012, Plaintiff wrote PBNC's Executive Director, Emily Dazey, disputing and requesting payment of withholdings from her paycheck for meal breaks that Plaintiff contended she did not take. In her letter Plaintiff asserted that there was no one during her shift to cover her duties and that she had not taken a meal break since starting work at PBNC.

In the autumn of 2012 Plaintiff began suffering from an unexplained illness. Symptoms included fever, fatigue, body aches and headaches.

In a document dated January 21, 2013, Defendant issued Plaintiff a "Corrective Action Notice" documenting a verbal warning regarding several performance issues. The stated reasons for the disciplinary action included: exceeding the number of absences set out in the company's attendance policy, a report that Plaintiff was "rude" to a patient, a medication error in which Plaintiff administered the wrong medication to the wrong patient, and a report that Plaintiff was unable to finish her shift duties "due to having a health issue - that your speech was rambling and unclear and unsteady on your feet...." Def. Ex. 10. According to notations on the document, Plaintiff refused to provide her signature acknowledging receipt of the notice.

In a letter dated April 15, 2013, an attorney representing Plaintiff acknowledged Defendant's determination that it owed Plaintiff a sum of $8, 454.77 in back wages for the missed meal breaks. However, the attorney sought payment for an additional amount of back wages Plaintiff claimed she was owed. The matter was referred to Defendant's Human Resources Consultant, Gary Baysinger, and was resolved by payment of the full amount Plaintiff claimed. Baysinger sent Plaintiff's attorney a letter dated April 25, 2013 informing him that Defendant would be issuing payment. In his Declaration, Baysinger states that he did not discuss Plaintiff's wage claim with PBNC Director of Nursing Tracy Thompson. Thompson did not start in her position as Director of Nursing until April 24, 2013. Thompson Decl. ¶2.

In late summer 2013, Plaintiff again began experiencing symptoms that her primary care physician attributed to the relapse of an "unexplained febrile illness" that was likely viral in nature. Around August 23, 2013, Plaintiff applied for and was granted FMLA/OFLA leave. Defendant approved leave originally through October 11, 2013 and then extended it to November 8, 2013. In a letter dated November 8, 2013, Defendant notified Plaintiff that, as of that date, she had exhausted her leave under FMLA and OFLA but was entitled to an additional week of leave under Defendant's Company Medical Leave program. Plaintiff returned to her same position at the conclusion of her leave having been released to full duty with no restrictions by her health care provider and able, according to her own testimony, to perform all of her job functions.

In deposition, Plaintiff testified that she complained in a letter to "the surveyors" regarding staffing issues at PBNC but she could not identify who these surveyors were except that they visited PBNC and their address was in a binder at the front desk. According to her deposition, Plaintiff made her complaint anonymously and did not keep a copy of the letter. She testified that she thought she sent the letter in 2012 but could not recall when specifically in 2012. In her May 11, 2015 Declaration, Plaintiff asserts that she wrote the complaint letter to state licensing surveyors in the fall of 2013.

Plaintiff was on duty in the SSU for the shift beginning the night of December 1st and ending the morning of December 2nd, 2013. It was established practice in the SSU to have the night shift RN dictate a report into a tape recorder at the end of the shift, communicating the events of the night and recording anything of importance for the next shift. The tape recorded report takes the place of an in-person hand-off to the oncoming nurse.

Plaintiff dictated her night shift report the morning of December 2, 2013 after her shift ended. According to Thompson's Declaration, the nurses on the day shift who listened to Plaintiff's report brought the taped report to the attention of SSU Resident Care Manager, Darlene Bleakney. Bleakney, in turn, brought the recording to Thompson. In her Declaration, Thompson states that she listened to the report and had several concerns about Plaintiff's care of patients during the December 1st/2nd shift and Plaintiff's "scattered and disorganized thoughts."

Thompson listened to the report on the evening of December 2nd. On the morning of December 3rd, Thompson contacted Human Resources to "formulate a plan for Ms. Wilson regarding her continued employment...." Def. Ex. 1. Thompson documented her concerns and also detailed the steps she followed as she performed an investigation. Id. The report details excerpts from Plaintiff's own tape recorded report and the information Thompson gathered from ...

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