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Varese v. Clatsop Behavioral Healthcare

United States District Court, D. Oregon, Portland Division

March 27, 2018

CHERYL VARESE, an individual, Plaintiff,


          Ann Aiken United States District Judge

         Plaintiff 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.[1] 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.


         Defendant 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.

         In 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.

         In late April 2015, plaintiff called the Council Representative for the Union which represents non-management CBH employees.[2] 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.[3] 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.

         Defendants 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.[4] 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.

         Defendants 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.

         On June 22, 2015, [5] 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.

         On July 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.[6]

         On the 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.

         Benas 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." Id.

         The 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.

         Hepp's 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.

         Plaintiff 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.

         On July 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, [7] 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 ...

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