United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
V. ACOSTA, UNITED STATES MAGISTRATE JUDGE
Marc Larson (“Larson”) is suing his former
employer, defendant Oregonian Publishing Company LLC dba
Oregonian Media Group (“Oregonian”), alleging he
was terminated for requesting medical leave and because he is
disabled. Currently before the court is Oregonian's
motion for summary judgment on Larson's claims for
violation of the Family and Medical Leave Act (29 U.S.C.
§§ 2601- 2654)(“FMLA”), the Oregon
Family Leave Act (Or. Rev. Stat. §§
659A.150-659A.186)(“OFLA”), the American with
Disabilities Act (42 U.S.C. §§
12101-12300)(“ADA”), and the Oregon
Rehabilitation Act (Or. Rev. Stat. §§
659A.103-659A.145)(“ORA”), and for wrongful
court finds Larson failed to establish the causal connection
between Oregonian's decision to terminate him and his
request for medical leave. However, Larson has presented
evidence Oregonian's proffered justification for
terminating him was based, in part, on his chronic eye issues
and resulting deficiencies. Accordingly, Oregonian's
motion for summary judgment isgranted with regard to
Larson's claims for violation of the FMLA and The OFLA,
and for wrongful discharge, and denied with regard to Larson
disability claims under the ADA and ORA.
moves to strike portions of Larson's declaration, arguing
discrepancies between statements in Larson's declaration
and his earlier deposition testimony establish the statements
are “sham” testimony. The Supreme Court has
recognized the “virtual unanimity” of circuit
courts that “a party cannot create a genuine issue of
fact sufficient to survive summary judgment simply by
contradicting his or her own previous sworn statement (by,
say, filing a later affidavit that flatly contradicts that
party's earlier sworn deposition) without explaining the
contradiction or attempting to resolve the disparity.”
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,
806 (1999). The Ninth Circuit follows this rule, reasoning
that: “‘If a party who has been examined at
length on deposition could raise an issue of fact simply by
submitting an affidavit contradicting his own prior
testimony, this would greatly diminish the utility of summary
judgment as a procedure for screening out sham issues of
fact.'” Kennedy v. Allied Mut. Ins. Co.,
952 F.2d 262, 266 (9th Cir. 1991) (internal citations
omitted) (quoting Foster v. Arcata Associates, Inc.,
772 F.2d 1453, 1462 (9th Cir. 1985), cert. denied,
475 U.S. 1048 (1986)). See also Noga v. Costco Wholesale
Corp., 583 F.Supp.2d 1245, 1252 (D. Or. 2008). However,
the “rule is in tension with the principle that a
court's role in deciding a summary judgment motion is not
to make credibility determinations or weigh conflicting
evidence” and “‘should be applied with
caution.'” Van Asdale v. Int'l Game
Tech., 577 F.3d 989, 998 (9th Cir. 2009)(quoting
Sch. Dist. No. 1J v. AcandS, Inc., 5 F.3d 1255, 1264
(9th Cir. 1993)).
rule does not extend to cases “in which a contradictory
affidavit is introduced to explain portions of earlier
deposition testimony. Rather, [the rule is] concerned with
‘sham' testimony that flatly contradicts earlier
testimony in an attempt to ‘create' an issue of
fact and avoid summary judgment.” Kennedy, 952
F.2d at 267. “The non-moving party is not precluded
from elaborating upon, explaining or clarifying prior
testimony elicited by opposing counsel on deposition; minor
inconsistencies that result from an honest discrepancy, a
mistake, or newly discovered evidence afford no basis for
excluding an opposition affidavit.” Messick v.
Horizon Indus., Inc., 62 F.3d 1227, 1231 (9th Cir.
1995). Therefore, the district court must determine whether
the contradictory testimony was given in an honest effort to
clarify, or was an intentional alteration designed to create
a genuine issue of material fact. Melendez v. Morrow
Cnty. Sch. Dist., Civ. No. 07-785-AC, 2009 WL 4015426,
at *14-15 (D. Or. Nov. 19, 2009)(declaration statements did
not directly contradict prior testimony and, therefore, were
admissible to create a genuine issue of material fact).
22 of the Larson declaration provides:
In April 2016, I had a meeting with Nancy Marquay to discuss
Salesforce. She did not accuse me of lack of follow through
on Salesforce. She did say, “Now you know you need to
get that Salesforce up to date.” I told Ms. Marquay
that I was having trouble seeing the screen. I [k]now that I
had forgotten about this meeting when I gave my deposition as
this was the earliest date that I discussed my difficulty in
seeing the Salesforce screen.
(Larson Decl. dated July 12, 2018, ECF No. 33, ¶ 22.)
Oregonian asserts this statement contradicts Larson's
deposition testimony that he could remember only one
conversation with his supervisor, Nancy Marquay
(“Marquay”), about his eye problems which
occurred in July 2016 during a car ride to a sales meeting.
Larson claims paragraph 22 is consistent with his testimony
he had more than one conversation with Marquay about his eye
situation prior to September 27, 2016, but that he could only
remember the July 2016 conversation at that time.
deposition testimony the parties refer to provides:
Q. So on September 27, 201, you, in writing, told Nancy
that you, quote, may need to have surgery on the 20th, closed
A. Are you talking about the 27th?
Q. Yes, of September?
Q. And prior to that, you testified you had one other
discussion with her about your eye or your eye situation. Is
Q. And --
A. Well, I've had - I had other conversations.
Q. With Nancy Marquay about your eye prior to September 27th?
Q. Okay, when did you have those, and what was said?
A. Well, I had said that in - in July, when we were riding
together, is when I told.
Q. Any other conversations with Nancy Marquay about your eye
situation or eye problems or needing time off for your eye
prior to September 27th, other than the one you just - that
you have told me about in July?
A. Other than when I rode with Nancy, it wasn't a
full-blown conversation about - well, it is what it is, but
she would tend to backseat drive quite a bit and I would say,
“Well, I can't see all that well, ” or
whatever I would say, so that was the conversation.
Q. Anything other than that with Nancy Marquay, up until
September 27th, other than the one conversation you have told
me about in July?
A. Not that I can remember at this point.
(Larson Dep. 195:5-196:12.)
22 does not directly contradict this testimony, but rather
clarifies or supplements the testimony by providing details
of another conversation with Marquay regarding Larson's
eye issues that Larson could not remember at the time of his
deposition. However, Paragraph 22 does directly contradict
Larson's deposition testimony he told Marquay he had
trouble with his vision making it difficult for him to sit in
front of a computer screen, sometime between July and
September, not in April. Specifically, Larson testified as
follows with regard to his discussion with Marquay about the
effect of his eye issues on his ability to use Salesforce:
Q. Did you have any discussion with Nancy Marquay as to your
need for additional training on Salesforce because you were
struggling with parts of it?
Q. What discussions did you have with her?
A. I told her that I was having trouble seeing and that I had
trouble with my vision and it was making it hard to sit in
front of a computer screen.
Q. When did you tell her that?
A. I told her that in - sometime in between July and
Q. Do you remember when?
A. Maybe August.
Q. Of ‘17?
A. No. ‘16.
Q. And do you remember anything other than what you just told
me that you told her?
MR. SNYDER: About Salesforce?
Q. BY MR. HARNDEN. About not being about to see the screen.
A. I just told her that it made it difficult to do the amount
of input that they were asking because of the eye strain, and
she had said that - well, that's what I had told her.
(Larson Dep. 56:6-57:4.)
did not reference any other conversations or indicate this
conversation about how his eye issues affected his ability to
use Salesforce was the only one he could remember. Paragraph
22 is contradictory to Larson's deposition testimony and
a clear attempt to establish Marquay knew Larson's
difficulties with Salesforce were related, at least in part,
to his eye issues well before July, 2016. Paragraph 22 is
sham and will not be considered by the court.
argues paragraph 45 of Larson's declaration is sham.
Paragraph 45 provides:
On September 12, 2016, I responded to Nancy Marquay's
claim that I had not properly entered data into Salesforce, a
customer profile data base. I told James Doyle that I was
having trouble using the program because I would having
trouble spending so much time on-screen because of my eyes;
the standards were applied inconsistently, and others had
trouble keeping up.
(Larson Decl. ¶ 45.) Oregonian claims this statement
contradicts Larson's testimony of the matters discussed
at the September 2016 meeting, which provides:
Q. What did you discuss with Jim Doyle and Nancy Marquay?
A. Basically about the accounts not being - some of the
accounts being not the exact fit for the Salesforce stages,
and that's when they were talking about the accounts
being larger accounts.
Q. And that was after you saw the first version of Exhibit 5?
I'm just trying to get a timeline here.
Q. And was it - was that discussion with Jim Doyle and Nancy
Marquay related to Exhibit 5 and the requirements of Exhibit
A. The nature of the conversation obviously was billed to be
about that, but was more about just things that I seemed to
be - about other things that were on - not on my write-up.
Q. Let's start with what was on your write-up. What was
discussed either by you or Jim Doyle or Nancy Marquay at that
meeting about Exhibit 5 or the performance review?
A. Very - the Salesforce in terms of - but not in terms of -
the number, so to speak, just about you need to have bigger
accounts and you don't - you need to not let the accounts
happen to you, and you need to get bigger accounts from the
get go. There is some talk about you need to start the month
off at 75 percent to goal.
Q. Who was saying that?
A. Jim Doyle and - Jim Doyle was doing most of the talking.
Q. What did you say during that portion that related to
Exhibit 5 or any of the requirements of Exhibit 5?
A. I didn't reference. I mean, it's your boss's
boss who is sitting here and listening.
Q. Do you remember saying anything about those - those
issues, the bigger clients and the earlier production in a
month and the other things you just mentioned?
A. You know, I just know that - you know, since I had this
issue with my eye and - I was, you know, missing some work. I
just began to feel like there were other things being looked
down upon because I was not able to provide the - or I guess
the thought was that I would be missing time and wouldn't
be able to bring in the money that I normally did or that - I
There was - I mean, for how long that I have been in sales,
it felt like some of the comments were just unnecessary or
just in a way that was, you know, talking down to me like I
hadn't been contributing or something or that I
wouldn't be contributing. I don't know.
Q. You have told me two things that Jim Doyle said. One was
that you needed bigger clients. The other was that you needed
to move the production to earlier in the month.
What else did Jim Doyle say to you during that meeting, his
A. That's all I can remember.
Q. Did Nancy - do you remember anything that Nancy Marquay
A. Like I said, I just remember her not saying much. And if
she did, it wasn't - she had more of a deer in the
Q. Did she say anything your recall at all? Do you remember
anything that she said?
Q. How long did that meeting take?
A. Maybe an hour.
Q. Do you recall anything you said during that meeting?
A. I explained that - my position again, that I have clients
that come up rather quickly. And although it's not what
they prefer, it's helping me get to my goal and be an
employee on their team that hits their goal and hits their
numbers. And I took the advice, I guess you could say, and
said that I would try to move those people into a - what they
(Larson Dep. 174:1-177:5.)
deposition testimony establishes issues discussed and
comments made at a September 2016 meeting between Larson,
Marquay, and Jim Doyle, Director of Advertising Sales for
Oregonian (“Doyle”), regarding a
“write-up” or “performance review.”
While Larson did not identify his eye issues and resulting
problems with Salesforce as items discussed during the
meeting during his deposition, he did indicate Salesforce was
discussed with regard to his performance deficiencies.
Consequently, Larson's description in paragraph 45 of his
response to Marquay's complaints about his Salesforce
entries is not contradictory to his deposition testimony.
Additionally, counsel did not ask Larson what he said at the
meeting in general or specifically with regard to Salesforce.
Instead, he asked Larson if he recalled anything he said
during the meeting, leaving the universe of statements made
by Larson during the meeting undefined. It is curious Larson
did not testify he told Doyle his eye problems caused him to
have issues with Salesforce during the meeting when this fact
is relevant to, if not at the core, of this lawsuit. However,
heeding the Ninth Circuit's warning to avoid taking
credibility and evidentiary issues from the jury
unnecessarily, the court finds paragraph 45 is not entirely
inconsistent with Larson's testimony, is not sham, and
should be considered.
51 of Larson's declaration provides:
On September 27, 2016, I submitted via email written
notification to Nancy Marquay that I may have to have surgery
on October 20, 2016. I wrote this at the bottom of a weekly
performance report that all employees turn in before meeting
face to face with their managers. The section at the bottom
of this report wants to know of “upcoming time
off.” (See Marquay Decl., Ex. 12 [Dkt 27-12].) I then
had a September 27, 2016, one-on-one meeting with Ms.
Marquay. During the meeting, I told Ms. Marquay that I was
going to have eye surgery on October 20, 2016. Ms. Marquay
did not say anything about it during our time one on one time
(Larson Decl. ¶ 51.) Oregonian argues Larson's
representation he discussed his surgery with Marquay on
September 27, 2016, contradicts his deposition testimony
describing his discussions with Marquay about his surgery,
Q. On September 27th, you notified Nancy Marquay that you may
need to have surgery on the 20th. At some point after that,
that you set the surgery date. Correct?
A. No. I set it before.
A. Because I knew about it and told The Oregonian in the - I
mean, when I wrote - when I wrote in the letter that I ...