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Strickland v. RM Mechanical, Inc.

United States District Court, D. Oregon, Portland Division

August 30, 2017

HOLLIS STRICKLAND, Plaintiff,
v.
RM MECHANICAL, INC., an Idaho corporation, Defendant.

          OPINION AND ORDER

          MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff 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 § 659A.030(1)(b).

         On 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 Summary Judgment.

         BACKGROUND

         Except as otherwise noted, the following facts are undisputed and taken from the record on summary judgment.[1]

         Plaintiff 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.

         On July 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' compensation claim.

         On July 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.

         On 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.

         Plaintiff's 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.

         On 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.

         On 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 doctor.

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. Hom replied:

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 employees.

Id. Ex. 8.

         On 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, responded:

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 available.
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 his surgery.

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.
Ted,
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).

         On 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 40 hours.
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 Hom:

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.

         On September 8, 2014, McManus issued to Plaintiff a Corrective Action ...


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