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Allred v. Boise Cascade Wood Products, LLC.

United States District Court, D. Oregon, Medford Division

July 18, 2018

JUSTIN ALLRED, Plaintiff,
v.
BOISE CASCADE WOOD PRODUCTS, LLC. Defendant.

          FINDINGS & RECOMMENDATION

          MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         BACKGROUND

         Justin 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 Employee Handbook).

         Boise 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.

         I.Allred's Work History at Boise Cascade

         Boise 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."[1] 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.

         On May 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; Ex. 12.

         Allred was also coached by supervisors for violations of plant safety policies. On October 3, 2014, a supervisor reprimanded Allred for stapling without protective gloves.[2] 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.

         II. Allred's Medical Condition

         Allred 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.

         On 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."[3] Anderson Decl. Ex. 1, at 14. Allred received short-term disability benefits for the week of his absence. Anderson Decl. Ex. 1, at 35.

         Allred 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.

         III. Allred's Termination

         On July 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. Id.

         At 4:00 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.

         When he 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.

         On July 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.

         Allred's 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.

         Boise 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; Ex. 16.

         LEGAL STANDARD

         Summary 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).

         A 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).

         The 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 ...


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