United States District Court, D. Oregon
SNYDER CARL POST JOHN DAVID BURGESS LAW OFFICES OF DANIEL
SNYDER ATTORNEYS FOR PLAINTIFF
KIMBERLY A. STUART ASSISTANT COUNTY COUNSEL OFFICE OF
WASHINGTON COUNTY COUNSEL LIANI J. REEVES BULLARD LAW
ATTORNEYS FOR DEFENDANTS
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
Jason Leinenbach brings this employment action against
Defendant Washington County, Oregon, alleging disability
discrimination and retaliation under Title I of the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §
12112; disability discrimination under Or. Rev. Stat.
(“ORS”) § 659A.112; interference,
discrimination and retaliation under the Family and Medical
Leave Act (“FMLA”), 29 U.S.C. § 2601, and
the Oregon Family Leave Act (“OFLA”), ORS
659A.150; injured worker discrimination and retaliation under
ORS 659A.040; and wrongful termination. Defendant moves for
partial summary judgment on Plaintiff’s First, Second,
Third, Fourth, and Fifth Claims for Relief. Plaintiff also
moves for summary judgment on his First and Second Claims for
disability discrimination under the ADA and the ORA. For the
reasons that follow, the Court grants in part and denies in
part Defendant’s motion and denies Plaintiff’s
began working for Defendant in 1998 at as jail deputy. Stuart
Decl. Ex. 1 (Pl. Dep.) at 38:6–8, ECF 51–52.
Sometime before 2002, Plaintiff was diagnosed with anxiety.
Id. at 50:19–53:1; Leinenbach Decl. ¶ 5,
ECF 48. In 2002, Plaintiff was placed on special assignment
as a mental health liaison for Washington County
Sherriff’s Office (“WCSO”). Stuart Decl.
Ex. 1 (Pl. Dep.) at 60:6–12. One of his tasks as the
mental health liaison was to train WCSO staff on mental
health disorders. Stuart Decl. Ex. 1 (Pl. Dep.) at
67:2–68:22. When he trained staff on anxiety, he would
cite his own experience as an example. Id.
returned to duty at the jail in 2014. Leinenbach Decl. ¶
14. Plaintiff began having problems at work: he avoided work,
missed meetings, and failed to respond to emails and calls
from his supervisor. Stuart Decl. Ex. 4 at 5–11. In May
of 2014, Commander Bose opened a Service Related Inquiry Memo
(“SRIM”) into Plaintiff’s conduct. Stuart
Decl. Ex. 4. The investigation revealed that Plaintiff had
missed a full week of work since February. Stuart Decl. Ex. 5
at 2. Plaintiff was suspended for three days without pay.
Id. at 3.
transitioning back to the jail, Plaintiff also experienced
difficulties with supervision by former junior staff and
problems with more senior deputies and staff. Stuart Decl.
Ex. 2 at 11–12. When Plaintiff received small
criticisms, he felt “almost paranoid” like he was
being “looked at under a microscope.” Stuart Dec.
Ex. 7 at 5. When another staff member investigated issues
with Plaintiff’s supervisor Sgt. Pete Moesler, Sgt.
Moesler revealed that he struggled to supervise Plaintiff.
Stuart Decl. Ex. 8 at 20. He said that attempts to
communicate with him resulted in Plaintiff being
“overly emotional or mad” and almost always ended
with “Leinenbach sobbing.” Id.
of 2015, Plaintiff and several others were subject to a SRIM
for personal use of the internet while on duty. Stuart Decl.
Ex. 9. No. formal discipline resulted from this SRIM. Stuart
Decl. Ex. 1 (Pl. Dep.) at 174:10–176:2. But Plaintiff
received an overall rating of “below standard” on
his 2015 annual review, which highlighted the 2014 and 2015
SRIMs. Stuart Decl. Ex. 6. Plaintiff was stressed by his
below-standard rating and ultimately sent a list of
complaints about his supervisor to Sheriff Garrett. Stuart
Decl. Ex. 7.
2015, Plaintiff also had significant stressors in his
personal life. That summer, Plaintiff moved his dying
father-in-law from Nevada to Oregon to live with him and his
family. Stuart Decl. Ex. 1 (Pl. Dep.) at 244:24–245:22.
Plaintiff contends that he was denied FMLA leave during this
time. Id. at 244:4–246:3. But on March 21,
2016, Plaintiff’s request for intermittent OFLA leave
for February 2 through August 2, 2016, was approved. Stuart
Decl. Ex. 15.
2014 and 2016, Defendant contends that Plaintiff’s
colleagues at the WCSO reported concerning behavior. For
example, in early 2016, Plaintiff placed his head on the
cutting board of a paper cutter. Leinenbach Decl. ¶ 20;
Stuart Decl. Ex. 13. Plaintiff alleges that people were
joking around about the cutting board, “which never
seemed to work properly” and had a dull blade.
Leinenbach Decl. ¶ 20. According to Plaintiff, in a
“joking manner” he placed his head on the cutting
board, said “just kill me, ” and pretended the
handle was coming down. Id. Plaintiff agreed to let
Sgt. Ashenfelter take a photo. Id. Over a month
later, Sgt. Ashenfelter sent this photo in an email to Lt.
McCrea, claiming that the Plaintiff jokingly made suicidal
statements. Id. ¶ 23, Ex. 3. Though he
didn’t take his comment seriously because of his
demeanor, Sgt. Ashenfelter also claimed that on a different
date Plaintiff stated, “Well, I’m going to go
home and kill myself now!” in front of staff and
inmates. Id. at Ex. 3. Plaintiff denies this
statement. Id. at ¶ 23.
was also involved in incidents with agitated inmates. On
February 15, 2016, WCSO received a report that Plaintiff used
profane and derogatory language and challenged an inmate to a
fight. Stuart Decl. Ex. 10. Video footage of the incident
showed that Plaintiff engaged in a heated exchanged with the
inmate before opening the cell door. Id. at
3–4. Though there was no audio to corroborate the
report that Plaintiff had used abusive language or challenged
the inmate to a fight, the SRIM investigation of the incident
conducted by Sgt. Tony Shaddy concluded that he had engaged
in an unsafe practice by opening the door of an agitated
inmate. Stuart Decl. Ex. 10 at 10. Although jail deputies are
not forbidden from opening the doors of all inmates, they
must exercise good judgment with regard for safety and
security when doing so. Id. at 7. Plaintiff
contends that he was making frequent welfare checks on the
inmate and was making every effort to keep him calm and safe.
Leinenbach Decl. ¶ 18. In his deposition, Plaintiff said
that he “simply cracked open the door” to
“reduce a . . . barrier that [he] felt was rude at the
time when [the inmate] was opening up to” Plaintiff.
Stuart Decl. Ex. 1 (Pl. Dep.) at 205:14–21.
April 27, 2016, Plaintiff had a heated interaction with an
inmate who was being placed on suicide watch. Stuart Dec. Ex.
12. They exchanged words, and the inmate flipped Plaintiff
off and told him “fuck you” or to “fuck
off.” Stuart Decl. Ex. 12; Stuart Decl. Ex. 1 (Pl.
Dep.) at 210:22–23. When Sgt. Iverson tried to speak
with Plaintiff about the incident, Plaintiff began to cry.
Stuart Decl. Ex. 12. He expressed frustration at having been
yelled at by different inmates for no reason. Id.
talking with Sgts. Iverson and Ashenfelter later that day,
Lt. McCrea sent an email to shift sergeants asking for
feedback regarding Plaintiff. Stuart Decl. Exs. 11, 12. He
had received concerns about Plaintiff’s abnormal
behavior and strange comments. Id. at 11. On May 5,
2016, after receiving a handful emails from shift sergeants
and talking to Sgts. Iverson and Ashenfelter, Lt. McCrea
requested that Plaintiff be sent for a fitness for duty
examination. Id. at Ex. 12; Burgess Decl. Ex. 2
(Dale Dep.) at 16:1–17:6, ECF 49.
9, 2016, Plaintiff called Sgt. Iverson after having been up
all night caring for his dying father-in-law and requested
one day of FMLA leave. Leinenbach Decl. ¶ 24. But in a
letter dated May 9, 2016, WCSO told Plaintiff he was being
placed on non-disciplinary paid administrative leave and sent
for an independent medical evaluation with Dr. David Corey.
Stuart Decl. Ex. 16; Leinenbach Decl. ¶ 25; Burgess
Decl. Ex. 2 (Dale Dep.) at 12:12–18. Matt Dale-a senior
analyst from Human Resources-asked Dr. Corey to determine,
among other things, whether Plaintiff was “safe to
perform his duties without risk of harm to self or
others.” Burgess Decl. Ex. 2 (Dale Dep.) at
16, 2016, Dr. Corey evaluated Plaintiff. He determined that
he did not suffer from any condition that prevented him from
performing the essential functions of his position. Stuart
Decl. Ex. 43 at 3; see also Burgess Decl. Ex. 3
(Corey Dep.) at 28:5–29:6, 65:20–66:7. He also
determined, however, that “to the extent that his
overly emotional, dramatic and reactive behavior is deemed by
the employer to threaten institutional security or safety, it
may well justify regarding him as unfit for duty.”
Id. According to Plaintiff, Dr. Corey told him that
if he became tearful at work, Defendant was going to fire
him. Leinenbach Decl. ¶ 26. Dr. Corey denies having told
Plaintiff he would be terminated but admits to having
discussed that crying at work would likely cause additional
concerns about his psychological fitness. Corey Decl. ¶
3, ECF 69.
of Dr. Corey’s evaluation releasing Plaintiff to full
duty, Defendant returned Plaintiff to work with a letter of
expectations outlining his return to duty. Stuart Decl. Ex.
18. In response, Plaintiff sent a letter dated August 2,
2016, informing Lt. Sundsted that he believed he was being
scrutinized unfairly because of his disabilities and
protected leave. Stuart Decl. Ex. 19. Lt. Sunstead informed
Plaintiff by email that he had forwarded his letter to the
Human Resources Department. Stuart Decl. Ex. 20.
received his annual evaluation on August 24, 2016, from his
new supervisor Sgt. Shaddy. Stuart Decl. Ex. 14. Because of
his 2016 SRIM, Plaintiff was marked as “below
standard” in policy and safety. Id. Plaintiff
indicated on his evaluation form that he did not agree with
the evaluation, was subjected to or witnessed harassment, and
was not paid all wages due. Id. On September 1,
2016, Mr. Dale reached out to Plaintiff to set up a review of
the 2016 evaluation and his complaint of harassment. Stuart
Decl. Ex. 21. Plaintiff said that he reported to Mr. Dale
that he was experiencing a hostile work environment because
of his disability. Leinenbach Decl. ¶ 34. During their
meeting on September 7, Mr. Dale reported that Plaintiff
yelled, cried, and used profane language. Stuart Decl. Ex. 22
at 5–6. Later, Plaintiff came to believe that a former
employee was listening in on his conversation with Mr. Dale
and that their conversation had been recorded. Stuart Decl.
Ex. 30; Stuart Decl. Ex. 1 (Pl. Dep.) at 275:21–
277:16; Stuart Decl. Ex. 41 (Zimkas Dep.) at 25:3–26:4.
sick time and vacation leave, Plaintiff was out of the office
from September 12 to 21, 2016. Leinenbach Decl. ¶¶
35–36. During this time, the benefits supervisor sent
Plaintiff FMLA paperwork, and Plaintiff met with his primary
care physician, Dr. Jeffrey Stossel, to fill it out on
September 20, 2016. Id. at ¶ 36. Dr. Stossel
cleared Plaintiff to return to work on September 21, 2016.
September 12, 2016, Plaintiff also filed a worker’s
compensation claim. Stuart Decl. Ex. 23. He reported
increased anxiety and an inability to return to work since
his interview with Mr. Dale. Id. On September 21, he
had a phone interview regarding his claim. Stuart Decl. Ex.
2. He said that he did not feel ready to go back to work that
night. Id. at 37. That same day, his claim was
denied. Stuart Decl. Ex. 50.
returned to the night shift on September 21, 2016, but walked
out of the nightly required briefing at the beginning of his
shift. Stuart Decl. Ex. 28; Stuart Decl. Ex 40 (Massey Dep.)
at 35:19–22. He allegedly reported that he could not
handle being at the meeting and was emotional before walking
directly to his post. Stuart Decl. Ex. 28. Sgt. Massey went
to check on Plaintiff. Id. Plaintiff testified that
told her he did not want to talk about it and get upset at
work. Stuart Decl. Ex. 1 (Pl. Dep.) at 264:4–18. But
when she asked how he was doing, he “immediately became
tearful” and told her about his disputed evaluation and
recent meeting with Human Resources. Stuart Decl. Ex. 28.
Plaintiff says that he had expressed his concerns to Sgt.
Massey about showing his emotions because Dr. Corey told him
he would be fired if he was tearful at work. Leinenbach Decl.
¶ 37. Sgt. Massey allegedly assured him that he would
not get fired for crying and related to him that she had a
difficult time making it through briefing without crying
after her father had passed away. Id. Though she
admitted to having shared with Plaintiff her own experience
with health issues in her family, Sgt. Massey denied having
admitted to crying at work or having heard that Dr. Corey
warned him not to be emotional. Reeves Decl. Ex. 5 (Massey
Dep.) at 11:15–13:2, 31:2–32:3, ECF 55.
on these statements and emotional state, Sgt. Massey decided
to send Plaintiff home. Stuart Decl. Ex. 28. She was
concerned that he might not be safe or effective at
supervising inmates. Id.; Reeves Decl. Ex. 5 (Massey
Dep.) at 37:15–23. After stating that he intended to
file a harassment complaint against Mr. Dale, Plaintiff
referred to Sgt. Massey as the “enemy, but not in a bad
way.” Stuart Decl. Ex. 28; Stuart Decl. Ex. 40 (Massey
Dep.) at 51:14– 52:6; Stuart Decl. Ex. 41 (Zimkas Dep.)
at 10:10–18. In an email, Sgt. Massey stated that this
“made the hair on the back of [her] neck stand up and
caused [her] concern about how [Plaintiff] might react if his
paranoia regarding [her] intentions continued.” Stuart
Decl. Ex. 29. These statements made her nervous about his
intentions and irrational perspective, and she began
traveling to and from work in uniform. Id. On
September 22, 2016, Plaintiff requested intermittent FMLA
leave from September 20, 2016, to March 20, 2017. Stuart
Decl. Ex. 24.
September 26, 2016, Plaintiff returned to work. Leinenbach
Decl. ¶ 40. He was told that he was being placed on
administrative leave by Lts. Sundsted and McCrea, who were
waiting for him outside the locker room. Id.
Allegedly, they told him he was being sent to Dr. Corey for a
second IME because he had become tearful in his conversation
with Sgt Massey. Id. In a letter dated September 27,
2016, Sherriff Garret informed Plaintiff that he had been
placed on paid administrative leave to attend another IME
with Dr. Corey. Stuart Decl. Ex 26. The letter noted that
Plaintiff had exhibited concerning emotions while on
assignment to work in the maximum-security pod, presumably
referring to Plaintiff’s discussion with Sgt. Massey a
week prior. Id.
October 4, 2016, Plaintiff went to his second IME with Dr.
Corey. Leinenbach Decl. ¶ 42. Allegedly, Dr. Corey told
Plaintiff at the outset that he “made a terrible
mistake releasing [him] to work in June” and that
Defendant “did not want [him] back.” Leinenbach
Decl. ¶ 42.
Corey is alleged to have said that he was going to agree with
Defendant and find him not fit for duty. Id. Dr.
Corey re-administered the “MMPI” test,
during which Plaintiff was very upset, frustrated, and
Corey issued his second report on October 7, 2016, finding
Plaintiff was suffering from a mental health condition that
prevented him from performing the essential functions of his
position. Stuart Decl. Ex. 44. Specifically, he found
[Plaintiff] cannot reliably and effectively make judgments
and decisions; maintain socially appropriate work behavior;
work under emergency and stressful conditions; and
communicate effectively. Although
[Plaintiff] asserts that he can deal effectively with inmates
so long as he does not have to interact with supervisors,
this, of course, is an unrealistic condition. Consequently,
in light of his hypersensitivity to supervisorial correction
and criticism, and his inability to properly modulate his
emotions and behavior under such conditions, his impairment
also limits his ability to perform these other essential
functions: working alone or apart in physical isolation from
others; influencing people in their opinions, attitudes, and
judgments; directing, controlling, or planning activities of
others; supervising inmates’ movements; counseling
inmates regarding their behavior in jail; maintaining
discipline; gaining the cooperation of inmates; handling
difficult prisoners with patience and firmness; using
physical force when necessary; dealing tactfully with the
public; and withstanding verbal abuse.
Id. at 4. He noted that Plaintiff was “unable
to be supervised” and would “require ongoing
treatment for his anxiety disorder.” Id.
Though Dr. Corey found that he posed a “low risk of
imminent violence against co-workers and supervisors outside
of his role as Jail Deputy, ” he also indicated that
his impaired functioning could have catastrophic consequences
for the ...