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Werner v. Sturgeon Electric Company, Inc.

United States District Court, D. Oregon, Portland Division

August 11, 2017

ALLEN WERNER, Plaintiff,


          MOSMAN, J.

         This matter comes before me on Defendant's Motion for Summary Judgment [21]. Plaintiff responded in opposition [28], and Defendant replied [37]. 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 remaining claims.


         Sturgeon 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.

         It is 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.

         The 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.

         The 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.

         The 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 surgeon.

         On 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.

         Throughout 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.

         Based 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.


         The 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 grounds)).

         McDonnell 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. Id.


         I. Workers' Compensation Discrimination under ORS 659A.040

         Mr. 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).

         As 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 summary judgment.

         A. Mr. Werner invoked the workers' compensation system.

         The 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 claim.").

         Mr, 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.

         Even if 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 ...

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