United States District Court, D. Oregon, Medford Division
FINDINGS & RECOMMENDATION
D. CLARKE UNITED STATES MAGISTRATE JUDGE.
Justin Allred ("Alfred") originally filed this
employment and disability discrimination action in Jackson
County Circuit Court in July 2017. Defendant Boise Cascade
Wood Products, LLC ("Boise Cascade") removed the
case to federal court on September 29. 2017. ECF No. 1. On
April 26, 2018, Boise Cascade filed a Motion for Summary
Judgment. ECF No. 12. The Court heard oral argument on the
motion on June 19, 2018. ECF No. 18. For the reasons set
forth below, Boise Cascade's motion should be GRANTED.
Allred was employed by Boise Cascade Wood Products, LLC from
March 3, 2014, until his termination on July 24, 2015.
Anderson Decl. Ex. 1, at 3, 30 (Allred Depo.). ECF No. 13.
Following his ninety-day probationary period, Allred worked
full-time as a bundle saw operator at Boise Cascade's
plant in White City, Oregon. Anderson Decl. Ex. 1, at 3, 5.
When he was hired, Allred was given a copy of the employee
handbook and his supervisors explained Boise Cascade's
policies, including attendance. Anderson Decl. Ex. 1, at 3.
Allred received an updated employee handbook in October 2014.
Anderson Decl. Ex. 1, at 8; Ex 2 (October 2014 Boise Cascade
Cascade policy required that employees who were unable to
make their scheduled shift call their supervisor at least one
hour before the shift was to begin so that the supervisor
could arrange for coverage. Anderson Decl. Ex. 1, at 8; Ex.
2, at 12. "Unexcused and/or unreported absence or any
record of absenteeism or tardiness the Company believes is
unreasonable will be sufficient cause for disciplinary action
up to and including termination of employment." Anderson
Decl. Ex. 2, at 12.
Work History at Boise Cascade
Cascade noted a persistent problem with absenteeism during
the period of Allred's employment. Between March 3 and
August 14, 2014, Allred was absent or left work early nine
times. Anderson Decl. Ex. 1, at 17. None of those absences
were related to Allred's medical condition. Anderson
Decl. Ex. 1. at 18. On August 14, 2014, Allred was
''coached'" by one of his supervisors, Ron
Hoy, and told that he needed to "work on [his]
absences." Anderson Decl. Ex. 1, at 17; Ex 7 (August
14, 2014 employee coaching form). Allred accrued an
additional six absences between August 14 and December 29,
2014. Anderson Decl. Ex. 1, at 18. These absences were noted
on an Employee Corrective Action Form, signed by Allred and
his supervisor on December 29, 2014, as a Formal Disciplinary
Warning. Anderson Decl. Ex. 9.
27, 2015, Allred was suspended from work for three days as a
result of his absences and tardiness in April and May 2015.
Anderson Decl. Ex. 1. at 19-21; Ex. 10. On July 6, 2015, and
again on July 9, 2015, Allred was late to work and was given
another three day suspension. Anderson Decl. Ex. 1, at 23-24;
was also coached by supervisors for violations of plant
safety policies. On October 3, 2014, a supervisor reprimanded
Allred for stapling without protective gloves. Anderson Decl.
Ex. 1, at 18; Ex 8 (October 3, 2014, employee coaching form).
On July 17, 2015, Allred was suspended for three days for
bringing an unsafe air wand into the plant. Anderson Decl.
Ex. 1, at 21-22; Ex 11. Following the July 2015 suspensions,
Allred was warned that future violations of Boise Cascade
policies could lead to termination. Anderson Decl. Ex. 1. at
23-24; Ex. 12.
Allred's Medical Condition
suffers from hemorrhoids. Anderson Decl. Ex. 1, at 2. Allred
sought treatment for his condition for the first time on
March 9, 2015. Anderson Decl. Ex. 1, at 9. Allred's
primary care physician, Dr. Puneet Bandi, made the initial
diagnosis and referred Allred to a surgeon. Id. The
surgeon prescribed an ointment and recommended that Allred
have surgery to treat the condition. Id. Dr. Bandi
told Allred that the condition would be recurring and
recommended that Allred change his diet. Id. Dr.
Bandi's office wrote letters to Boise Cascade concerning
Allred's condition and recommended that Allred be excused
from work from March 9 through March 15, 2015. Anderson Decl.
Ex. 1, at 10. Allred returned to work on March 16, 2015, and,
although the medical report did not indicate that Allred
would have further limitations after his return, Allred's
supervisors discussed Allred's limitations with him and
placed him on light duty for a week while he recovered.
Anderson Decl. Ex. 1, at 13-14.
March 24, 2015, Allred requested and received FMLA leave for
the week of his absence. Anderson Decl. Ex. 1, at 10-13, 15;
Ex. 6 (Notice of FMLA leave approval). In filling out his
FMLA paperwork, Allred indicated that he "may need
intermittent leave due to flare up or worsening
condition." Anderson Decl. Ex. 1, at 12; Ex. 4 (FMLA
request form). Dr. Bandi submitted a report to Boise Cascade
as part of the FMLA process, in which he certified that
Allred had been incapacitated by his condition between March
8 and March 15, 2015. Anderson Decl. Ex. 5, at 1 (Dr.
Bandi's FMLA report). Dr. Bandi also indicated that
Allred's condition would have periodic flare-ups two or
three times per year, but that the flare-ups would not
require Allred to be absent from work or prevent Allred from
performing his job functions. Anderson Decl. Ex. 1, at 14;
Ex. 5. at 2. Dr. Bandi did not certify Allred for
intermittent FMLA leave." Anderson Decl. Ex. 1, at 14.
Allred received short-term disability benefits for the week
of his absence. Anderson Decl. Ex. 1, at 35.
never asked Boise Cascade for any accommodations for his
hemorrhoids. Anderson Decl. Ex. 1, at 34. Although Boise
Cascade has procedures in place for employees who wish to
report discrimination, retaliation, or harassment, Allred
never reported any discrimination. Anderson Decl. Ex. 1, at
8. Allred testified that, to the best of his knowledge, no
Boise Cascade employees made any derogatory comments about
his medical condition or his leave of absence. Anderson Decl.
Ex. 1, at 34. When Allred was asked why he believed that his
termination was in retaliation for the use of FMLA leave,
Allred responded "I don't know." Id. .
When asked why he believed that Boise Cascade had
discriminated against him because of his hemorrhoids, Allred
replied "They fired me." Id. When asked if
he had any other reason to believe he'd been
discriminated against because of his medical condition,
Allred answered "No." Id.
22, 2015, Allred was scheduled to begin work at 5:00 a.m.
Anderson Decl. Ex. 1. at 26. Allred lived approximately
twelve miles from the White City plant and it generally took
him twenty minutes to get to work. Anderson Decl. Ex. 1, at
6. Normally, Allred woke up an hour before his shift and left
home thirty minutes before his was scheduled to begin work.
a.m., Allied woke up experiencing a flare-up of his
hemorrhoids. Anderson Decl. Ex. 1, at 26. By 4:45 a.m.,
Allred knew that he would not be able to make it to work.
Id. Despite the fact that Boise Cascade's
call-in policy requires that he call in before the start of
his shift, Allred did not call in to the absence line until
5:16 a.m., after the start of his scheduled shift. Anderson
Decl. Ex. 1, at 26-27. Allred testified that he didn't
know why he didn't call in when it became clear that he
would be unable to report to work by 5:00 a.m. Anderson Decl.
Ex. 1. at 26.
called in, Allred left a message saying that he was
experiencing a medical condition and that he would not be
able to work that day. Anderson Decl. Ex. 1, at 27. Allred
did not seek medical treatment, although he did call Dr.
Bandi to request an appointment. Anderson Decl. Ex. 1, at
27-28. Allred also called his supervisors to report that
he'd made an appointment to see his doctor. Anderson
Decl. Ex. 1, at 28.
23, 2015, Allred was seen by Dr. Bandi, who confirmed that
Allred was experiencing a flare-up, but did not issue any
prescriptions or give Allred any treatment other than to tell
him to "wait it out.'" Anderson Decl. Ex. 1, at
28-29. Dr. Bandi wrote a note asking that Allred be excused
from work on July 23 and 24, 2015. Anderson Decl. Ex. 1, at
29; Ex. 13.
supervisor, Jim Powers, called Allred on July 23, 2015, and
told him that they had decided to terminate Allred from his
employment. Powers Decl. ECF No. 13-17. Allred was told to
come in on July 24. 2015, so that they could fill out the
paperwork. Anderson Decl. Ex. 1, at 30. On July 24, 2015.
Allred came to the plant and met with his supervisors.
Id. Following that meeting, Allred was terminated
for violation of Boise Cascade's attendance and reporting
to work policies. Id.; Ex. 14.
Cascade's policies permit a terminated employee to appeal
their dismissal within three days by submitting a written
notice to the human resources department. Anderson Decl. Ex.
1, at 32; Ex. 14, at 2. Allred did not appeal his termination
within the time provided by company policy. Anderson Decl.
Ex. 1, at 32. Allred was also given the option of requesting
a meeting with the Boise Cascade regional manager, but he did
not submit a request for a meeting. Anderson Decl. Ex. 1, at
33; Ex. 14, at 2. Allred did ultimately submit written
appeals of his termination in December 2015 and January 2016,
which were denied as untimely. Anderson Decl. Ex. 1, at 33;
judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Wash. Mut. Inc. v.
United States. 636 F.3d 1207, 1216 (9th Cir. 2011);
Fed.R.Civ.P. 56(a). The moving party must show the absence of
a dispute as to a material fact. Rivera v. Philip Morris,
Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). In response
to a properly supported motion for summary judgment, the
nonmoving party must go beyond the pleadings and show there
is a genuine dispute as to a material fact for trial.
Id. "This burden is not a light one .... The
non-moving party must do more than show there is some
'metaphysical doubt' as to the material facts at
issue." In re Oracle Corp. Sec. Litig., 627
F.3d 376, 387 (9th Cir. 2010) (citations omitted).
dispute as to a material fact is genuine "if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Villiarmo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). The court must draw all reasonable
inferences in favor of the non-moving party. Sluimer v.
Verity, Inc., 606 F.3d 584. 587 (9th Cir. 2010).
"Summary judgment cannot be granted where contrary
inferences may be drawn from the evidence as to material
issues." Easter v. Am. W. Fin.. 381 F.3d 948,
957 (9th Cir. 2004). A "mere disagreement or the bald
assertion that a genuine issue of material fact exists"
is not sufficient to preclude the grant of summary judgment.
Harper v. Wallingford, 877 F.2d 728. 731 (9th Cir.
1989). When the non-moving party's claims are factually
implausible, that party must "come forward with more
persuasive evidence than otherwise would be
necessary[.]" LVRC Holdings, LLC v. Brekka, 581
F.3d 1127. 1137 (9th Cir. 2009) (citation omitted).
substantive law governing a claim or defense determines
whether a fact is material. Miller v. Glenn Miller Prod,
Inc.,454 F.3d 975, 987 (9th Cir. 2006). If the
resolution of a factual dispute would not affect the ...