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Leinenbach v. Washington County, Oregon

United States District Court, D. Oregon

December 11, 2018




          OPINION & ORDER


         Plaintiff 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 motion.


         I. Factual Background

         Plaintiff 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.

         Plaintiff 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.

         In 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.

         In June 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.

         In 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.

         Between 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.

         Plaintiff 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.

         Around 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.

         After 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.

         On May 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 32:13–19, 33:5–15.

         On June 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.

         Because 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.

         Plaintiff 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.

         Using 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. Id.

         On 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.

         Plaintiff 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.

         Based 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.

         On 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.

         On 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.

         Dr. 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, [1] during which Plaintiff was very upset, frustrated, and scared. Id.

         Dr. 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 ...

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