United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
matter comes before me on Defendant's Motion for Summary
Judgment . Plaintiff responded in opposition , and
Defendant replied . Plaintiff Allen Werner brings seven
claims against his former employer, Defendant Sturgeon
Electric ("Sturgeon"), alleging that he was
unlawfully fired for discriminatory or retaliatory reasons
stemming from an on-the-job injury. Mr. Werner's first
claim alleges Sturgeon unlawfully discriminated against him
for invoking the workers' compensation system. His second
claim alleges Sturgeon unlawfully failed to reinstate him
after his injury. His third, fourth, fifth, and sixth claims
allege disability discrimination and retaliation under Oregon
law as well as the Americans with Disabilities Act
("ADA"). His seventh claim alleges Sturgeon
unlawfully retaliated against him as a whistleblower. For the
reasons discussed below, I GRANT summary judgment on Mr.
Werner's second claim, and DENY summary judgment on the
hired Mr. Werner, a journeyman electrician, to work on one of
its job sites. Mr. Werner's primary duty on the job was
stripping electrical cables. In the course of stripping a
cable, Mr. Werner sustained a deep cut on one hand that
caused tendon damage.
undisputed that every morning during job site safety
meetings, Mr. Werner and his coworkers signed off on notes
that detailed safety equipment they were required to use. In
this case, cut-resistant gloves are listed on the safety
meeting notes that Mr. Werner signed. While Mr. Werner and
Sturgeon agree that he was not wearing cut-resistant gloves
at the time he sustained the injury, Mr. Werner maintains
that Sturgeon did not provide any cut-resistant gloves on the
job site. Sturgeon disputes this fact, and claims that it
kept a well stocked supply of cut-resistant gloves on the job
site for its workers.
exact source of Mr. Werner's injury is also in dispute.
Mr. Werner claims he was injured by the utility knife that
Sturgeon provided for stripping cables, which he alleges is
an unsafe tool for the job. Sturgeon claims that Mr. Werner
was cut by a component of the cable itself, rather than the
utility knife. In any event, Mr. Werner received stitches at
an emergency room on the day of the injury, which was a
Thursday. His treating physician also advised him not to use
his hand until a surgeon cleared him to do so.
next day, Mr. Werner reported to the job site to collect his
tools and ask for time off to attend a follow-up appointment
with a surgeon that afternoon. Sturgeon superintendent Drew
Tolliver approved his request. Sturgeon also claims that Mr.
Tolliver offered Mr. Werner light duty work at this time, and
Mr. Werner refused it. Mr. Werner states that he cannot
recall being offered any light duty work.
surgeon was unable to see Mr. Werner at his scheduled
follow-up time, and Mr. Werner's attempts to get an
appointment over the weekend with another surgeon were
unsuccessful. Ultimately, Mr. Werner learned he would have to
wait until Monday to have a follow-up appointment with a
Saturday, Mr. Werner did not report for work as scheduled.
That evening, Mr. Tolliver decided to terminate Mr.
Werner's employment. On Monday, Mr. Tolliver delivered
the teimination notice to Mr. Werner after his follow-up
appointment with the surgeon.
the time between Mr. Werner's injury and his termination,
Sturgeon management exchanged text messages and emails about
the situation that included references to "lost time,
" what Mr. Werner's rights to union representation
were, and how best to control Mr. Werner's medical care
to avoid a workers' compensation claim that would
negatively affect Sturgeon. Sturgeon managers also testified
that avoiding lost time was a concern in any employee injury
in order to keep insurance premiums down, and Sturgeon
attempted to send members of management into Mr. Werner's
medical appointments with him, although Mr. Werner did not
allow them into the exam room with him.
on these facts, Mr. Werner contends that his termination was
unlawful discrimination because of his workers'
compensation claim and his injury, which he claims is a
protected impairment under the ADA and Oregon disability law.
He also claims he was retaliated against as a whistleblower
based on comments he made to coworkers and Mr. Tolliver about
the safety of the work site and tools. Sturgeon denies that
it fired Mr. Werner for discriminatory or retaliatory
reasons, and instead claims it fired Mr. Werner because he
failed to follow safety protocol by not wearing cut-resistant
gloves. Sturgeon also cites Mr. Werner's failure to
appear for work on the Saturday following his injury as a
secondary reason for his firing.
Court may grant summary judgment when a movant demonstrates
that there is no genuine dispute as to any material fact and
that the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The Court must view the record in the
light most favorable to the nonmoving party, and "if
reasonable minds could differ" regarding the facts and
inferences therein, summary judgment should not be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986); see also Valandingham v. Bojorquez, 866 F.2d
1135, 1137 (9th Cir. 1989). The Ninth Circuit
'"require[s] veiy little evidence to survive summary
judgment' in a discrimination case, 'because the
ultimate question is one that can only be resolved through a
searching inquiry-one that is most appropriately conducted by
the factfinder, upon a full record.'" Lam v.
Univ. of Haw., 40 F.3d 1551, 1564 (9th Cir. 1994)
(quoting Sicho-Nownejad v. Merced Only Coll. Dist.,
934 F.2d 1104, 1111 (9th Cir. 1991) (superseded on other
Douglas burden shifting applies in this case, which
dictates that if Mr. Werner can make a prima facie case for
discriminatory treatment, Sturgeon must follow up with a
legitimate, nondiscriminatoiy explanation for its action.
See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122
n.16 (9th Cir. 2004) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-03 (1973)). If Mr. Werner can
then demonstrate that Sturgeon's explanation is
pretextual, his claim will survive summary judgment.
Workers' Compensation Discrimination under ORS
Werner's first claim alleges that Sturgeon violated ORS
659A.040, which prohibits an employer from
"discriminat[ing] against a worker with respect to hire
or tenure or any term or condition of employment because the
worker has applied for benefits or invoked or utilized [the
workers' compensation system]." Or. Rev. Stat. Ann.
§ 659A.040. To establish a prima facie case, Mr. Werner
must demonstrate that (1) he invoked the workers'
compensation system; (2) Sturgeon discriminated against him
with respect to hire, tenure, or terms or conditions of his
employment; and (3) Sturgeon discriminated against him
because he invoked the workers' compensation system.
Williams v. Freightliner, LLC, 100 P.3d 1117, 1121
(Or. Ct. App. 2004).
discussed below, I find that Mr. Werner introduced sufficient
evidence into the record to support a prima facie case for
this claim. Mr. Werner also introduced sufficient evidence to
support an inference that Sturgeon's alleged
nondiscriminatory explanation for firing him could be
pretextual. Accordingly, I find that there is a genuine
dispute of material fact relevant to this claim, and DENY
Mr. Werner invoked the workers' compensation
Oregon Administrative Rules define "invoke" for the
purposes of ORS 659A.040 as "including], but not limited
to, a worker's reporting of an on-the-job injury or a
perception by the employer that the worker has been injured
on the job or will report an injury." Or. Admin. R.
839-006-0105(7); see also McPhail v. Milwaukee Lumber
Co., 999 P.2d 1144, 1150 (Or. Ct. App. 2000) (confirming
the OAR's definition of "invoke" and holding
that an employee's verbal notification to his employer of
a stomach condition and its possible relationship to work
stress "gave [the employer] knowledge of an existing
Werner nndisputedly reported his injury to his direct
supervisor at the time it occurred and requested medical
attention. Sturgeon argues that its managers did not have
direct knowledge of Mr. Werner's invocation of the
workers' compensation system because none of them
witnessed his injury and they did not know that it was severe
enough to implicate the workers' compensation system.
However, severity or perceived severity of the on-the-job
injury is not relevant to whether or not it was reported,
which is all the law requires for the workers'
compensation system to be "invoked."
McPhail, 999 P.2d at 1150.
it were relevant, a reasonable jury could infer that Mr.
Tolliver knew Mr. Werner's injury was more than a minor
cut when Mr. Werner insisted on going to the emergency room
and was advised by a doctor not to use his left hand until
cleared by a surgeon. Mr. Werner points to undisputed
evidence in the record that shows Sturgeon management's
awareness of his injury and medical ...