United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE.
Hollis Strickland, a resident of Multnomah County, Oregon,
brings two claims in his Complaint (#1) against Defendant, an
Idaho corporation. In Claim One Plaintiff alleges Defendant
discriminated against him as a result of his application for
workers' compensation benefits in violation of Oregon
Revised Statute § 659A.040. In Claim Two Plaintiff
alleges Defendant discriminated against him on the basis of
race in violation of Oregon Revised Statute §
April 14, 2017, Defendant RM Mechanical, Inc., moved for
summary judgment on Claims One and Two of Plaintiff's
Complaint. For the reasons stated below, the Court GRANTS in
part and DENIES in part Defendant's Motion (#14) for
as otherwise noted, the following facts are undisputed and
taken from the record on summary judgment.
was a union pipefitter. In June 2014 Plaintiff took an open
call from his Local 290 union and went to work for Defendant,
a subcontractor on a construction project in Hillsboro,
Oregon. The Local 290 dispatched Plaintiff to RM to work as a
pipefitter for Defendant at the journeyman rate of $41.21 per
hour with additional benefits.
2, 2014, Plaintiff injured his right index finger while
working for Defendant. Mark Buehler, M.D., performed surgery
on Plaintiff's finger the following day. Also on July 3,
2014, Plaintiff filed a workers' compensation claim.
Defendant did not oppose Plaintiff's workers'
9, 2014, Qian Leng, M.D., released Plaintiff to work on
“modified activity” with the additional
requirement that Plaintiff “have a shorter week day due
to pain and the medications he is on, preferably for 3 hours
a day.” Def.'s Mot. (#14) Ex. C. Plaintiff returned
to work three hours per day and performed office work in the
trailer at the project site. Although Plaintiff only worked
three hours per day after he returned to work, Defendant
continued to pay Plaintiff at his journeyman rate for eight
hours per day.
August 6, 2014, Dr. Buehler filled out a work status report
that limited Plaintiff to performing “office
work” for the following two weeks. Id. Ex. C.
Dr. Buehler's August 6 work status report did not mention
any limitation or any change to the preexisting limitation on
the number of hours that Plaintiff could work.
supervisors, however, grew concerned about Plaintiff's
inability to work a full, eight-hour workday and to return to
some work outside the trailer. On July 17, 2014, Bradley Hom,
Defendant's chief financial officer, wrote in an email to
Gary McManus (Defendant's project manager at the job
site) and David Yates (another employee of Defendant), that:
“I just called [Plaintiff's] doctor. He is out of
the office until Monday. I want to talk to him about the 3-4
hour restriction. I want that removed. I'll do my best,
some doctors work with us and some do not.” Macke Decl.
(#24) Ex. 3. On July 21, 2014, Hom wrote a follow-up email to
Nancy Williams at AIG (Defendant's workers'
compensation insurance carrier) with McManus and Yates copied
in which Hom stated he spoke with Dr. Buehler, was
dissatisfied with Dr. Buehler's assessment of
Plaintiff's work-hours limitation, and indicated he did
not believe Plaintiff's injury was sufficient to justify
Plaintiff being limited to three hours of work per day.
Id. Ex. 4.
August 6, 2014, Plaintiff, who is African-American, posted a
photograph to his Facebook account that depicted a noose
fashioned from a yellow rope on a table inside the trailer at
the job site. Plaintiff posted the photograph with the
caption “In my office this morning, said they were
practicing knots from there [sic] childhood.”
Def.'s Mot. (#14) Ex. P. McManus acknowledged making the
noose “on an afternoon in early August 2014”
after a particularly frustrating meeting, and explained that
he made the noose as part of a joke about wanting to hang
himself as a result of that meeting. McManus Decl. (#16)
¶ 14. McManus stated Ted Layton, Defendant's safety
manager at the jobsite, instructed McManus to throw the noose
in the garbage can outside the trailer, which McManus states
he did. McManus further avers Plaintiff was not in the
trailer at the time he made the noose or when he disposed of
it, and that there was not any racial motive behind making
the noose. Nonetheless, McManus states on a day
“shortly after” the day he created and threw away
the noose, he saw it lying on one of the drafting tables in
the trailer, but that he does not know how it got there.
Id. ¶ 16. Plaintiff testified in his deposition
that he saw the noose in the trailer on two other occasions,
including once in McManus's office, but that he did not
know when or by whom the noose was made. Riewald Decl. (#19)
Ex. 1 at 38-43. McManus denies Plaintiff saw the noose in his
office. McManus Decl. (#16) ¶ 17.
August 7, 2014, Layton received the August 6, 2014, work
status report from Dr. Buehler and sent it to McManus and
Hom. McManus responded: “This looks to me to be what
Hollis would have asked the doctor to write . . . His hurt
finger cannot be as painful as he is playing it up to
be.” Macke Decl. (#24) Ex. 6. Hom responded:
I agree. Unfortunately, the case manager is from the CCIP and
not our own. Pain is very subjective. Last time I received a
work status report I called Dr. Buehler and he essentially
admitted to writing the restrictions to match whatever Hollis
says he is capable of doing. We are in a tough spot. When the
case manager is in town, I can force a move to another
Id. After further discussion regarding whether
Plaintiff's injury necessitated the restrictions that Dr.
Buehler had indicated, McManus wrote to Hom: “Sorry
about wasting your time with dumb questions, I just have
difficulty digesting crap, and there is so much of it over
here, I have to vent to people I can trust once in a while .
. . Again, sorry about all this.” Id. Ex. 8.
No worries, vent anytime - I get it. I vent to our workers
comp agent and most case manager [sic] all the time.
Some states are fair in my opinion. Other states, like Oregon
and Washington, favor the employee too much in my opinion. I
see why we are union and see the benefits. There are other
difficulties with unions, including some short-sided
[sic] selfish “me me” type union
Id. Ex. 8.
August 25, 2014, Dr. Buehler reiterated the limitation of
Plaintiff to “desk-type work, ” but again did not
mention any limitation concerning the number of hours per day
that Plaintiff could work. The next day, after obtaining Dr.
Buehler's updated work status report, Hom sent the
following email to Nancy Williams at AIG:
We have serious concerns regarding the legitimacy of the
on-going [sic] worker's comp claim for Hollis
Strickland. Please see attached his latest work status
report. Mr. Strickland's finger appears to be healed.
There is no bandage on the finger. Despite this he continues
to insist on only working short days. The attached does not
limit a number of hours as previous reports did. Therefore,
we are assuming we can demand that Mr. Strickland work a full
8 hour day of light duty. Please confirm. If he does not work
these hours, we will write him up as per our company policy
for unexcused absenteeism and if needed and applicable
terminate him for cause for violating Company policy.
Please reply or call me today to discuss your Company's
strategy to get Mr. Hollis back to full duty as a productive
member of our team.
Id. Ex. 9, at 1. Tathay McNeilly, on behalf of AIG,
Based on the below it appear [sic] that you have
full light duty hours available for Mr. Strickland. Based on
this Mr. Strickland is required to work the light duty
available as long as it continues to be within the
restrictions given by the attending physician. If he does not
work the light duty and decides to leave early then you are
not required to pay him and we are not required to pay him
TPD due to he chose not to work and the light duty was
Based on the continued light duty (desk type work) indicated
on the current work release I will have a letter sent to the
attending physician to find out why he is unable to return to
regular duty and when is he anticipated to be able to return
to light duty. At this time he is seven and a half weeks from
Id. Ex. 10. That evening McManus forwarded
McNeilly's email to Layton and two of Defendant's
other employees, and added:
Hollis is ONLY paid for the hours he is here, nothing more .
. . You can all see below what [sic] the claims
manager is on-board with the fact that he is certainly
(fraudulently) milking the system.
He is your guy now. Because he is a recordable injury on this
project, he will be assisting you in daily safety audits, he
will review PTP's and contribute to them. He will also
offer up some of his 30 years in the business to our efforts
in the field and provide SOME value to this project during
his continued recovery. If he refuses, he will be written up
for refusal to carry out the light duty activities of safety
audits and PTP reviews. He will be in the field, he
will NOT carry anything or be asked to do anything more than
Safety Audits and PTP reviews . . . NOTHING that will require
the use of his “finger.”
Id. Ex. 10 (emphasis in original).
September 3, 2014, Dr. Buehler completed a Release to Return
to Work form that indicated Plaintiff could return to work
full-time on similar modified duty. Def.'s Mot. (#14) Ex.
F. The following day, Layton, on Defendant's letterhead,
presented to Plaintiff a letter that stated:
The purpose of this letter is to communicate certain facts
regarding your worker's compensation claim. You reported
your injury on 7/2/14. Since that date, we have accommodated
the work restrictions placed on you by the assigned
physician. You have actually only physically worked light
duty on average 10-15 hours a week. We have paid you a full
On August 25, 2014 the assigned physician indicated that you
were released to work a full 40 hours per week. We
communicated to you that we had 40 hours of light duty work
available to you. Regardless, you decided to only work 15
hours. We only paid you 15 hours. We will only pay you are
[sic] hours actually worked in the future as you are
released to work 40 hours and we have 40 hours of light duty
available to you.
Please acknowledge you have received this letter and read it.
Id. Ex. G. Plaintiff did not sign the letter.
Id. Layton and McManus each noted on the letter that
Plaintiff refused to sign it when it was presented to him on
the morning of September 5, 2014. That morning, McManus wrote
To add to this, (while it is still fresh in my mind) Hollis
emphatically refused to sign the letter this morning. When I
asked him if anything on the letter was false, he stated that
we (Ted Layton and I) were trying to harass him and
intimidate him. He did NOT indicate that anything in the
letter was false. This being said the only voice that was
raised in the conversation was Hollis'. He threatened us
with the “Two Attorney's [sic] that he
always keeps retained” and that he was “reporting
everything that has happened to Turner Construction, Intel
and the local union hall” also that he had already
spoken with Mark Sundstrom (Union Business Agent) and that we
would be hearing from all of them today.
He is currently yelling at A.J. Holbrook right now, and I
would expect a summary of that discussion from A.J. shortly.
Macke Decl. (#24) Ex. 12 at 2. Hom responded and instructed
McManus that “[i]f he doesn't start working please
give him a corrective action notice and if he refuses to sign
please sign and have a witness sign.” Id.
September 8, 2014, McManus issued to Plaintiff a Corrective