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Larson v. Oregonian Publishing Company LLC

United States District Court, D. Oregon, Portland Division

August 13, 2018

MARC LARSON, Plaintiff,




         Plaintiff 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 termination.[1]

         The 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 is[2]granted 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.

         Preliminary Procedural Matter

         Oregonian 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)).

         This 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).

         Paragraph 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.

         The deposition testimony the parties refer to provides:

Q. So on September 27, 201[6], you, in writing, told Nancy that you, quote, may need to have surgery on the 20th, closed quote. Correct?
A. Are you talking about the 27th?
Q. Yes, of September?
A. Yes.
Q. And prior to that, you testified you had one other discussion with her about your eye or your eye situation. Is that correct?
A. Yes.
Q. And --

A. Well, I've had - I had other conversations.

Q. With Nancy Marquay about your eye prior to September 27th?
A. Yes.
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.[3] 195:5-196:12.)

         Paragraph 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?
A. Yes.
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 September.
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.)

         Larson 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.

         Oregonian 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[4] 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.
A. Yes.
Q. And was it - was that discussion with Jim Doyle and Nancy Marquay related to Exhibit 5 and the requirements of Exhibit 5?
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 don't know.
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 words?
A. That's all I can remember.
Q. Did Nancy - do you remember anything that Nancy Marquay said?
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 headlights look.
Q. Did she say anything your recall at all? Do you remember anything that she said?
A. No.
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 wanted.

(Larson Dep. 174:1-177:5.)

         The 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.

         Paragraph 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 together.

(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, which provides:

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.
Q. Okay.
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 ...

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