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Hicks v. Les Schwab Tire Centers of Portland, Inc.

United States District Court, D. Oregon

August 29, 2018

ELIZABETH HICKS, Plaintiff,
v.
LES SCHWAB TIRE CENTERS OF PORTLAND, INC., an Oregon corporation, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN United States Magistrate Judge.

         Elizabeth Hicks (“Hicks”) brings this action against her employer, Les Schwab Tire Centers of Portland, Inc., an Oregon corporation (“Les Schwab”).[1] Hicks asserts federal law claims of disability discrimination and retaliation pursuant to the Americans with Disabilities Act (“ADA”) (42 U.S.C. §§ 12112 & 12203). Hicks also asserts state law claims of disability discrimination (Or. Rev. Stat. (“O.R.S.”) § 659A.112), disability retaliation (O.R.S. § 659A.109), workers' compensation - retaliatory discrimination (O.R.S. § 659A.040), and workers' compensation - failure to reinstate (O.R.S. § 659A.043) and failure to reemploy (O.R.S. § 659A.046).[2]

         The Court has original jurisdiction over Hicks' ADA claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over Hicks' state law claims pursuant to 28 U.S.C. § 1367(a). All parties consent to jurisdiction by a magistrate judge (ECF No. 25). See Fed. R. Civ. P. 73(b). Les Schwab moved for summary judgment on all of Hicks' claims (ECF No. 28). See Fed. R. Civ. P. 56. The Court heard oral argument on Les Schwab's motion for summary judgment. For the reasons explained below, the Court denies Les Schwab's motion for summary judgment.

         BACKGROUND[3]

Hiring of Hicks

         Les Schwab hired Hicks on or about March 15, 2014, as a part-time sales and administrative employee. (Am. Compl. ¶ 7.) Hicks was responsible for sales, payroll, and opening customer credit accounts. (Id. ¶ 8.) Hicks reported to David Jensen (“Jensen”), the store manager at Les Schwab's service location in Nyssa, Oregon. (Id. ¶¶ 3, 9.) During Hicks' interview for the position, Jensen told Hicks she would start as a part-time employee and later transition to full-time employment. (Decl. Michael Owens Supp. Resp. Mot. Summ. J. ¶ 3, ECF No. 41 (hereinafter “Owens Decl.”), Ex. 2, at 5.) The advertisement for the position “clearly stated it was a full-time position” (id. Ex. 2, at 5), and the previous employee who held the position, Mariah Harrison, worked full-time at the time of her departure. (Id. Ex. 3, at 6.) Hicks became a full-time employee on or about March 16, 2015. (Id. at 9-10.)

         Performance Evaluations and Pay Raise

         Jensen gave Hicks an overall performance rating of two out of three on a performance evaluation dated May 8, 2014, and told Hicks “it was an excellent review.” (Id. Ex. 2, at 6.) Sometime in March 2015, Jensen gave Hicks another rating of two out of three, stating on the evaluation that Hicks needed improvement in the areas of work ethic, task completion, and trainability. (Id. at 7.) Jensen told Hicks he was referring to wanting her to spend some of her time working outside in the service bays to assist the sales and service employees by recording vehicle information, such as make and model, license numbers, and mileage. (Id.) This work sometimes required running and getting in and out of vehicles. (Id. at 19.) At Hicks' next performance review on August 31, 2015, she received a rating of one out of three. (Id. at 7-8.)

         Jensen “remember[s] getting customer complaints about [Hicks] since right after she started.” (Id. Ex. 3, at 14.) He asserts that, “We had a lot of problems with her attitude and how she treated customers, her demeanor with other people on the crew, and a lot of complaints.” (Id. at 13.) Jensen further asserts that Hicks' bad attitude was because “she hadn't had a raise.” (Id. at 49.) Hicks received a discretionary pay raise on October 1, 2015. (Id. at 12-13.) “You know, she was on me persistent, and I finally gave her a raise[, ]” Jensen testified. (Id. at 49.)

         The Accident and Resultant Injury

         On November 3, 2015, Brian Blackmore (“Blackmore”), assistant store manager at the Nyssa store, was operating a pad hoist, which dropped onto Hicks' feet and trapped her. (Id. at 15-16, 30.) Jensen witnessed the accident, heard Hicks yelling, and helped remove the hoist from Hicks' feet. (Id. at 16.) Hicks went to the emergency room and was diagnosed with a “crush” injury to her left foot. (Am. Compl. ¶ 10.)

         On November 5, 2015, Hicks saw Dr. Lawrence Sladich (“Dr. Sladich”), who specializes in occupational medicine. (Decl. Karen O'Kasey Supp. Def.'s Reply Supp. Sum. J. Mot. ¶ 10, ECF No. 44 (hereinafter “O'Kasey Reply Decl.”), Ex. 9, at 1-2.) Dr. Sladich gave Hicks a recommended work status of “no work capacity.” (Id. at 2.) He placed her left foot in a walking boot and recommended that it not bear weight for two days. (Id.) He wrote that Hicks could return to work on November 7, 2015, but should not run or jump and should continue wearing the walking boot. (Id.) Dr. Sladich cleared Hicks for a regular return to work after Les Schwab clarified that running and jumping were not essential functions of Hicks' job, i.e., that her job is sedentary. (Owens Decl. Ex. 2, at 45; Decl. Karen O'Kasey Supp. Def.'s Mot. Summ. J. ¶ 5, ECF No. 30 (hereinafter “O'Kasey Decl.”), Ex. 4.)

         Hicks returned to work on November 7, 2015. (Owens Decl. Ex. 2, at 12.) She had many doctor appointments and physical therapy sessions during subsequent weeks. (Id. at 12-14.) After each doctor appointment, Hicks' medical provider faxed information regarding the appointment, necessary treatment, and medications to Les Schwab. (Id. at 12-13.) Other than absences for medical appointments, Hicks worked her regular schedule through 2015. (Id. at 14.) In a report dated December 1, 2015, and in Patient Visit Summaries dated December 31, 2015, April 11, 2016, November 17, 2016, and December 29, 2016, Dr. Sladich cleared Hicks to perform sedentary work. (O'Kasey Decl. Ex. 1, at 1; Owens Decl. Ex. 1, at 1-4.)

         Hicks also saw two orthopedic surgeons during this time period: Dr. Sladich referred her to Dr. Bob Davis in Fruitland, Idaho, and Dr. Davis referred her to Dr. Coughlin (first name unknown) in Boise, Idaho. (Id. Ex. 2, at 10.) Hicks testified that her crush fracture, also known as a “nut cracker break[, ]” cannot be repaired by surgery because the bones are broken such that “there is nothing to pin back together.” (Id. at 4.)

         Hicks wore the orthopedic boot on her left foot for more than one year. (Id. at 12.) She attended physical therapy to treat her foot injury through March 2017. (Id. at 3.) On July 18, 2017, Hicks described her pain as follows: “[S]ome days my foot is fine. There are other days that my foot kills me.” (Id. at 4.) Her medical restrictions included no long-term standing, running, jumping, squatting, or bending. (Id. at 20.) As of April 5, 2018, Hicks' injury had not fully healed and was “not expected to fully heal at any time in the foreseeable future.” (Decl. Elizabeth Hicks Supp. Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. 2, ECF No. 42 (hereinafter “Hicks Decl.”).) Hicks described ongoing impairments caused by the injury, such as being unable to ski, go on long hikes, or “stand for long periods of time without experiencing pain[, ]” and difficulty “dancing with my husband or going down stairs without stumbling or falling.” (Id.)

         Workers' Compensation Claim

         Hicks filed a workers' compensation claim on or about November 3, 2015. (Am. Compl. ¶ 10.) The claim was accepted on or about December 29, 2015. (Id. ¶ 22.) On November 10, 2015, Sarah Key (“Key”), who worked in Les Schwab's workers' compensation department, emailed Jensen and Blackmore regarding Hicks' claim, informing them that “[a]t this time your store will be charged the medical only service charge of a maximum of $300.00.” (Owens Decl. Ex. 3, at 65.) The claim later became a “time-loss” claim, resulting in a one-time $1, 500 charge. (Id. Ex. 4, at 3; Ex. 5, at 4.) Such a charge impacts a store's profit margin (id.), and profitability can impact employee bonuses (id. at 5). However, Jensen testified that such an impact is “almost nothing.” (O'Kasey Reply Decl. Ex. 1, at 2.)

         Christopher Church (“Church”) replaced Jensen as store manager of the Nyssa store on April 1, 2016. (O'Kasey Decl. Ex. 10, at 4; Owens Decl. Ex. 5, at 3.) Sometime after Church became store manager, Key notified Church that Hicks had a workers' compensation claim and was set to return to work. (Owens Decl. Ex. 5, at 2.) Church understood that a time-loss claim could affect the store's profits and employee bonuses. (Id. at 3-5.) Key did not inform Church that Hicks had made a claim with the Oregon Bureau of Labor and Industries (“BOLI”) against Les Schwab. (Id. at 2.)

         First Disciplinary Write-Up: Customer Credit Account

         On December 21, 2015 (approximately six weeks after Hicks' injury), Jensen and Blackmore met with Hicks to discipline her for opening a customer credit account for herself and her husband in March 2015. (Id. Ex. 3, at 28-29.) Hicks received a write-up because management did not authorize the credit account. (O'Kasey Decl. Ex. 2, at 1-2.) The write-up did not specify what policy Hicks had violated. (Id. at 1.)

         This was the first time Hicks had received an “Employee Conference Record (Form 123), ” which Jensen describes as “a letter to the employee, letting them know that you have a problem with their performance, or safety, or an issue they're having at work.” (Owens Decl. Ex. 3, at 20-21.) Jensen asserts that previously he had informally documented issues in Hicks' file. (Id. at 21; see also Id. at 66 (listing in Hicks' file nine such issues, including calling in sick, running her own credit report, customer complaints, going home early for a hair appointment, not offering to help a fellow employee, and four instances of missing work for a doctor appointment).) After Hicks' injury, Jensen had spoken with Joy Cox (“Cox”), a Les Schwab human resources business partner assigned to the Nyssa store, who told Jensen to start formally documenting any issues with Hicks and reminded him that Hicks had an open workers' compensation claim. (Id. at 21, 55-56.)

         With respect to opening the credit account, Hicks had unilateral authority to open customer credit accounts for customers whose credit scores were above a certain threshold score. (O'Kasey Decl. Ex. 7, at 10.) Hicks was required to check with Jensen or Blackmore before opening credit accounts for customers whose credit scores were below that threshold. (Owens Decl. Ex. 3, at 28.) At his deposition, Jensen could not identify a policy that Hicks had violated by opening her own credit account, but said that “[i]t's kind of a common sense issue.” (O'Kasey Decl. Ex. 7, at 10.) Jensen also referenced Les Schwab's credit score guidelines and said, “I was never able to see any of that on [Hicks'] account . . . .” (Id.) In addition to Jensen, neither Blackmore nor Cox could identify a policy that Hicks violated by her actions. (Owens Decl. Ex. 4, at 6; Ex. 6, at 2-3.) However, in its reply (ECF No. 43), Les Schwab now asserts that Hicks violated at least two provisions of Les Schwab Tire Centers Code of Business Conduct (“the Code”): one requiring employees to avoid conflicts of interest “between personal business interests and the interests of the Company” and another stating that “no person shall receive discounts, terms, business opportunities or any other special treatment based on their relationship or friendship with a Company employee.” (Def.'s Reply Supp. Mot. Summ. J. at 3-4; O'Kasey Reply Decl. Ex. 3, at 3-4.)

         Hicks opened the credit account in or around March 2015. (Am. Compl. ¶ 17.) She asserts that she told Jensen that she had opened the account for herself and her husband at that time. (Owen Decl. Ex. 2, at 23.) Jensen testified that he disciplined Hicks regarding the account the day he discovered it, on December 21, 2015. (O'Kasey Decl. Ex. 7, at 9.) He said he discovered the account while “going through credit and the accounts receivable.” (Id.) Cox testified that Jensen discovered the account the day he called her to discuss it, on December 17, 2015. (O'Kasey Reply Decl. Ex. 2, at 2-4.) However, Jensen had previously credited Hicks' credit account fifty dollars when Hicks' husband traded in tires. (Owens Decl. Ex. 2, at 24.) When asked about crediting an account in the names of Hicks and her husband, Jensen testified, “I recall something about that. I don't remember the details of it.” (Id. Ex. 3, at 24.) Jensen further testified that Hicks had a “bad debt write-off account” for Les Schwab's Vale store, but he did not know what he credited to that account and could not recall what he did with the credit for the tires. (Id. at 25-26.) Blackmore testified that a manager generally would be able to tell which Les Schwab store is associated with an account when crediting that account. (Id. Ex. 4, at 5-6.)

         Second Disciplinary Write-Up: Bad Attitude

         On December 23, 2015, two days after Hicks received the first disciplinary write-up, Jensen and Blackmore again met with Hicks, and Jensen gave Hicks a second disciplinary write-up. (Id. Ex. 3, at 33; Ex. 2, at 25.) The write-up stated that “Elizabeth has a poor attitude at work. She is being combative, reserved, and is ignoring management.” (O'Kasey Reply Decl. Ex. 4, at 2.) Jensen testified that he wrote up Hicks because, “since the first write-up, her attitude was never the same. She . . . never had a great attitude . . . . But the attitude went extremely downhill.” (Owens Decl. Ex. 3, at 32.) At the meeting, Jensen told Hicks “that her attitude has to turn around. We can't have her around the customers . . . with an attitude like that.” (Id. at 33.)

         Hicks testified that in the meeting Jensen told her she “was being really reserved and quiet that day.” (Id. Ex. 2, at 25.) Hicks told Jensen that “didn't have anything to do with Les Schwab” but was because her best friend had called her earlier that morning and told her that another friend had testicular cancer and would soon undergo surgery. (Id.) In addition, Hicks testified that just before the meeting several Les Schwab employees, including Blackmore, “engag[ed] in an inappropriate workplace conversation.” (Id. at 26.) Hicks asserts that she ignored the conversation, and Jensen and Blackmore called the disciplinary meeting with her minutes later. (Id. at 25-27.) Jensen does not recall Hicks telling him about a phone call from her friend and denies that the inappropriate workplace conversation occurred. (Owens Decl. Ex. 3, at 33-34.) He asserts that Hicks was ignoring others at work because she was mad about the first write-up. (Id. at 33.) Hicks refused to sign the second write-up. (Id. at 32.)

         First Layoff

         During the same December 23, 2015, meeting, Jensen and Blackmore informed Hicks that she was being seasonally laid off. (Id. at 35.) Hicks' hours were reduced to zero, which Blackmore testified was not abnormal. (O'Kasey Decl. Ex. 9, at 3-4; see also Id. Ex. 10, at 5-6.) Hicks was placed on seasonal layoff status during the prior winter as well but worked reduced hours during that layoff. (Id. Ex. 7, at 7-8.) The business slowdown during winter 2015-2016 was “similar” to the slowdown during the prior winter. (Owen Decl. Ex. 3, at 52.) Seasonal layoffs during the winter months are typical at Les Schwab stores. (O'Kasey Decl. Ex. 7, at 4; Ex. 9, at 2; Ex. 10, at 4-5.) At the time Hicks was laid off, two other employees had already been placed on seasonal layoff, and another employee went on seasonal layoff the following month. (Decl. Dave Jensen Supp. Def.'s Mot. Summ. J. 1-2, ECF No. 29.) Hicks understood that she was “being laid off as of December 23rd as part of the seasonal layoff.” (O'Kasey Decl. Ex. 8, at 8.) However, Jensen testified that Hicks' “poor attitude [was] part of the reason that [she] was put on a seasonal layoff.” (Owens Decl. Ex. 3, at 35.)

         Jensen and Blackmore also informed Hicks during the December 23, 2015, meeting that they were considering changing her position from full-time to part-time when she returned from layoff. (O'Kasey Decl. Ex. 8, at 7.) Hicks asserts and Jensen denies that Jensen was considering the change because of the time Hicks was away from work attending medical appointments. (Owens Decl. Ex. 2, at 41; Id. Ex. 3, at 36.) Blackmore testified that he and Jensen “felt that [they] could do [Hicks'] job duties and . . . reduce wages.” (O'Kasey Decl. Ex. 9, at 3.)

         Later that same day, Hicks called Les Schwab's human resources hotline. (Owens Decl. Ex. 2, at 30.) She reported that she had been injured and felt that she was being laid off as a result of her injury. (Pl.'s Resp. Opp'n Def.'s Mot. Summ. J. at 9.) She was referred to Gary Kennedy (“Kennedy”), a regional manager who oversaw the Nyssa store. (Owens Decl. Ex. 2, at 30.) Hicks called Kennedy, who was not aware of her injury and told Hicks he would get back to her after making some calls. (Id.) Kennedy called Jensen and then called back Hicks within an hour. (Id. at 31.) Hicks alleges that Kennedy was “nice” during the first call and that during the second call “his demeanor had completely changed.” (Id. at 30-31.) Specifically, Hicks alleges that Kennedy asked her what she was trying to accomplish by her phone call and told her that he would “always have [his] manager's back.” (Id. at 31.) In addition, Hicks alleges that Kennedy ...


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