United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Aiken United States District Judge
Cheryl Varese brings this wrongful termination and
retaliation action against her former employer and
supervisors, alleging defendants violated provisions of the
Family Medical Leave Act ("FMLA"), 29 U.S.C. §
2601 et seq. the Oregon Family Leave Act ("OFLA"),
Or. Rev. Stat. § 659A.183; Oregon's whistleblower
retaliation statute, Id. §§ 659A.199 and
659A.23O; and Oregon's employment discrimination statute,
Id. § 659A.030. Before me is defendants'
motion for summary judgment. For the reasons set forth
herein, defendant's motion is granted in part, as to
plaintiffs FMLA claim only. I decline to exercise
supplemental jurisdiction over plaintiffs state law claims
and dismisses those claims without prejudice.
Clatsop Behavioral Healthcare ("CBH") is a mental
healthcare agency located in Clatsop County, Oregon. In May
2013, plaintiff was hired as the Program Director of
CBH's Developmental Disability ("DD") Program.
Plaintiffs supervisors at CBH were defendants Sumuer Watkins
and Nick Benas, who served as CBH's Executive Director
and Director of Business Operations, respectively. In 2014,
plaintiff received a yearly performance evaluation in which
her evaluator found she met expectations in every category of
assessment. Also in 2014, plaintiff requested sexual
harassment training to address the behavior of one
subordinate staff member. Aside from that isolated request,
neither party reports any workplace issues or personnel
challenges prior to 2015.
April 2015, a series of events caused tensions to rise
between the parties. On April 22, 2015, a CBH employee, who
was plaintiffs housemate, resigned after allegedly being
sexually harassed by a CBH co-worker for several months.
Later that same day, another CBH employee, with whom
plaintiff associated, was terminated after attempting to
intervene on behalf of the employee who had resigned. The two
former CBH employees subsequently filed administrative and
legal complaints for employment-related claims, including
discrimination complaints. Plaintiff later informed
defendants Watkins and Benas that she was friends with those
and other former CBH employees.
April 2015, plaintiff called the Council Representative for
the Union which represents non-management CBH
employees. Plaintiff neither concedes nor
denies the occurrence and content of the phone call to the
Union Council Representative; none of the documents filed by
plaintiff address this call. According to the Union Council
Representative, plaintiff called and explained that CBH
employees were upset with executive leadership and further
"stated that it would be 'very smart' for the
Union to take a no-confidence vote" against Watkins and
Benas, Simpson Decl. ¶ 7. Plaintiff allegedly expressed
her understanding that such a vote would result in the
removal of Benas and Watkins from their executive positions.
also allege that on May 13, 2015, plaintiff spoke with the
Union Chapter Chair and similarly requested a no-confidence
vote against Watkins and Benas. Again, plaintiff neither
concedes nor denies that any such conversation took
place. The Union Chapter Chair contacted
the Union Council Representative to express concern regarding
plaintiffs request, which the Chapter Chair felt was
"inappropriate." Louder Decl. ¶ 6; Simpson
Decl. ¶ 9. Thereafter, the Union Council Representative
contacted Watkins to inform her about plaintiffs
no-confidence vote requests. The Union Chapter Chair was one
of plaintiffs subordinates and the same individual whose
behavior had prompted plaintiff to request sexual harassment
training in 2014.
claim that in the spring of 2016, they began receiving
"vague" complaints about the DD Program. Watkins
Decl. ¶ 7. The only subject of the complaints identified
by defendants is that plaintiff had apparently suggested a
client be transferred to a non-CBH therapist. Watkins
expressed concern that plaintiff had "not adequately
investigated whether CBH could provide those services
in-house, " which is preferred in order to "provide
the highest quality of care" for its clients. Watkins
Decl. ¶ 7. Watkins also expressed doubt regarding
plaintiffs qualifications for making such determinations
regarding clients' mental health treatment.
22, 2015,  defendants Watkins and Benas met
with plaintiff. Plaintiff reports that, at the meeting,
Watkins and Benas threatened her employment after plaintiff
acknowledged that she continued to be friends and housemates
with the former employee who had resigned on April 22.
Defendants report that, at the meeting, they discussed
Varese's referral of a client to a non-CBH therapist,
general complaints received regarding the DD Program, and
expectations for areas on which plaintiff was to focus moving
forward. Defendants also raised plaintiffs purported contact
with Union representatives and her alleged requests for a
no-confidence vote against them. "In no uncertain terms,
[Watkins] told Ms. Varese that management-level employees
were expected not to undermine CBH management to the
Union." Id. ¶ 10. Defendants maintain that
they neither threatened plaintiffs job nor attacked her
character, and that the exchange was professional.
7, 2015, a meeting took place between plaintiff, defendants,
and plaintiffs four staff subordinates. Plaintiff declares
"the fact of the meeting alone was strange, " and
indicates that she had expected a private meeting with
Watkins. Varese Deck ¶ 8. Defendants characterize the
meeting as a weekly DD Program staff meeting, though they
concede that this meeting was scheduled at a time that was
different than usual. Plaintiff and defendants describe the
meeting as "tense" and "heated, "
respectively. Varese Deck ¶ 8; Watkins Deck ¶ 12;
Benas Deck ¶ 4, Nov. 13, 2017. One or more of plaintiffs
subordinates questioned whether management had instructed
plaintiff to "randomly write up" employees absent a
violation of CBH policy. Watkins Decl. ¶ 12; Benas Decl.
¶ 4, Nov. 13, 2017; see also Varese Deck ¶ 8. Benas
responded that he had not so directed plaintiff. Plaintiff
maintains that she had been directed to write up one staff
subordinate for absences associated with medical leave, which
instruction she believed to be illegal. Defendants and others
present at the meeting aver that plaintiff ultimately
apologized for saying that defendant Benas had directed her
to write up subordinates.
morning following the DD Program meeting, July 8, 2015,
plaintiff sent two email messages to defendants. In the first
message, plaintiff stated that she would be filing a formal
complaint regarding the July 7 meeting, which she alleged had
been "a direct attack against my character, "
"resulted in a hostile work environment, " and was
"retaliatory in nature due to my affiliation and
association with previous employees that are no longer with
CBH." Stephenson Decl. Ex, 15 at 26, Dec. 21, 2017. That
first email was addressed to Watkins and Benas and copied to
CBH's Board President, as well as to two other Clatsop
County employees. Approximately four hours later, plaintiff
sent another email to solely Watkins and Benas in which she
reported three of her subordinate staff discussing personal
sexual matters and referring to clients in disparaging terms.
The second email focused primarily on allegedly inappropriate
statements made by the Union Chapter Chair.
responded via email to plaintiffs first message the following
morning, July 9, stating, "We take these formal
complaints very seriously. We will have an investigator
following up promptly." Benas Decl. Ex. 3, Nov. 13,
2017. Also on July 9, three of plaintiffs
subordinates-including the Union Chapter Chair-submitted a
joint letter to Watkins expressing their concerns about the
"hostile work environment we are in due to the actions
of our supervisor, Program Manager Cheryl Varese."
Louder Decl. Ex. 5. The three staff requested
"protection from Ms. Varese's retaliatory actions
and removal of her as Program Manager immediately."
next day, July 10, CBH retained David Hepp to conduct an
independent investigation of plaintiffs complaint. Both
parties agree that CBH Board President hired Hepp; neither
Watkins nor Benas participated in the selection process or
decision to hire Hepp. In written correspondence with Hepp,
the CBH Board President indicated that Benas would provide
additional information and serve as a point of contact.
Between July 10 and July 14, Hepp interviewed Watkins, Benas,
the Union Council Representative, the three subordinates who
had written to request plaintiff be removed from her
position, another CBH employee whom the plaintiff had
formerly supervised, and the plaintiff herself. In his
declaration, Hepp noted that, "[a]lthough I typically
interview the complainant before the other witnesses, "
he interviewed the plaintiff last, on July 14, because she
was out of the office attending a training. Hepp. Decl.
¶ 11. Hepp did not interview plaintiffs fourth
subordinate because that staff member was on medical leave at
the time of the investigation.
investigation yielded divergent recollections or inconsistent
reports of events by various interviewees. For example, on
July 13, Hepp interviewed the Union Council Representative,
who told Hepp that the plaintiff had contacted her around the
third week of April and recommended that the Union take a
no-confidence vote against CBH executive management. When he
interviewed the plaintiff on July 14, however, Hepp reports
that the plaintiff told him "she had not spoken to Ms.
Simpson about a no-confidence vote[.]" Hepp. Decl.
¶ 20. Multiple times in his declaration, Hepp concludes
that plaintiff "lied." Id. ¶¶
21, 26, 29, 31.
contests the impartiality of the investigation earned out by
Hepp. Benas and Watkins helped facilitate scheduling
interviews and provided Hepp with various documents.
Plaintiff points out that by the time Hepp interviewed
plaintiff on July 14, 2015, Hepp had spent more than twenty
hours on the investigation; in plaintiffs estimation, he
"had already made up his mind[.]" Varese Decl.
¶ 12. In particular, plaintiff highlights that, in his
notes, Hepp referred to the plaintiff with the delta symbol
("A"), which is commonly used as legal shorthand to
denote a defendant. Hepp acknowledges in his declaration that
"[a]lthough I was initially retained to investigate Ms.
Varese's complaints, I discovered complaints about Ms.
Varese's conduct during the course of my
investigation." Hepp Decl. ¶ 38.
17, 2015, plaintiff met with a doctor regarding anxiety,
sleep loss, and other manifestations of "severe
work-related stress." Varese Decl. Ex. 14. Plaintiffs
doctor prescribed a week off of work. On Sunday, July 19,
plaintiff emailed CBH's acting human resources staff
person,  Pam Dean, to alert her that
plaintiff would be absent for the week and that she had a
doctor's note she could bring when she returned the
following Monday. On July 20, Dean emailed plaintiff
paperwork for FMLA-protected medical leave and short-term
disability, though plaintiff had not expressly requested that
information. Dean copied Benas on the email message
containing the attached FMLA paperwork, and Benas does not
appear to have responded to or contested the conveyance ...