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Newman v. Lowe's Home Centers, LLC

United States District Court, D. Oregon

January 4, 2019

JASON NEWMAN, Plaintiff,



         Plaintiff Jason Newman brings this employment discrimination action against Defendant Lowe's Home Centers, LLC. Defendant terminated Plaintiff, an assistant store manager, after he turned off the store alarm and went into the parking lot to check on his personal vehicle. Plaintiff asserts two claims: (1) Defendant terminated him because he invoked the benefits of the worker's compensation system, violating Or. Rev. Stat. §659A.040; and (2) Defendant terminated him for reporting criminal activity in good faith, violating Or. Rev. Stat. § 659A.230(1).[1]

         Defendant now moves summary judgment on both claims. I grant the motion.


         I. Plaintiff's Employment with Defendant

         In April 2015, Plaintiff started working as an assistant store manager at Defendant's Milwaukie store. Totten Decl., Ex. 1, Pl. Dep. 19, ECF No. 22-1. He had prior experience as an assistant store manager with Home Depot. Pl. Dep. 70.

         Plaintiff was an at-will employee. Pl. Dep. 245 & Ex. 16. Plaintiff was neither promoted nor demoted until his termination. Pl. Dep. 21. After about six months at the Milwaukie store, Plaintiff transferred to Defendant's Hillsboro store, which added several hours to his commute. Pl. Dep. 20. In about September 2015, Plaintiff sought a transfer to a store that was closer to his home.

         In January 2016, Plaintiff became assistant store manager for the overnight shift at Defendant's Delta Park store in north Portland. Plaintiff disliked the Delta Park job because working nights meant he missed seeing his children, and because he had “to deal with the homeless and theft.” Pl. Dep. 106.

         Plaintiff supervised about twelve employees. Pl. Dep. 78. As the overnight assistant store manager, Plaintiff was responsible for opening and closing the store, conducting perimeter checks, and setting and turning off the alarm system. Pl. Dep. 108. (Turning on the alarm system is also referred to as “arming” it.) Plaintiff was also responsible for unloading and storing freight, and ensuring that the store was ready to open.

         Plaintiff was the highest ranking manager in the store during the overnight shift. He usually arrived at the store by 8:00 p.m. If the prior manager had left early, Plaintiff was responsible for supervising the “closing associates, ” including cashiers and department supervisors. Pl. Dep. 77-78. Plaintiff then supervised the night employees, who were also referred to as “night stocking associates.” Pl. Dep. 102. Plaintiff usually worked until about 7:00 a.m. Pl. Dep. 37. If the opening manager was late, Plaintiff was responsible for the “opening associates.” Pl. Dep. 78.

         Starting in spring 2016, Plaintiff's supervisor was Tyler Schaffer, the Delta Park store manager. When Schaffer arrived at the store around 5:00 or 5:30 a.m., Plaintiff would report on events that occurred during the night shift. Pl. Dep. 37.

         II. Security at the Delta Park Store

         Defendant classifies its stores by security risk, with Risk Level 1 as the lowest risk and Risk Level 6 as the highest. Patronaggio Decl. ¶ 4. In 2016, Defendant classified the Delta Park store as Risk Level 5, and used extra security measures such as additional cameras. Patronaggio Decl. ¶ 5. Defendant's policy was to keep the store alarm armed and the doors locked between midnight and 5:00 a.m. Hunt Decl., Ex. 5, at 22-23 (Defendant's Night Stocking Security Procedures). During these hours, employees were prohibited from leaving the store for breaks unless they had “an emergency (ex: family or medical).” Id., at 22. The assistant store manager “must turn off and reset the alarm system and provide an explanation to the alarm monitoring station operator.” Id.

         The Delta Park store was not in “the greatest of neighborhoods.” Pl. Dep. 75. Plaintiff testified that homeless persons “were constantly walking around, digging through our trash cans.” Pl. Dep. 75. Plaintiff considered the store parking lot to be unsafe at night, testifying that several car break-ins and car thefts occurred during the weeks before the November 2, 2016 incident that preceded Plaintiff's termination. Pl. Dep. 99-100.

         Plaintiff testified that as the store's night manager, he had a “very serious responsibility” to ensure that employees were safe. Pl. Dep. 103; id. at 87 (“I wanted to make sure everybody was as safe as they could be.”). Plaintiff testified that “there was a level of I'm responsible for all these people's lives and safety. Could they have a gun? Could they shoot me? I mean, there was always that in your head.” Pl. Dep. 106; id. (Plaintiff testified that while he was working for Home Deport, an assistant manager was shot during a store robbery).

         Plaintiff learned about security procedures at the Delta Park store from the store's loss prevention manager, M. Scott Rains. Pl. Dep. 113. He also received guidance on security from Rains's supervisor, area loss prevention manager Jeff Patronaggio. Pl's Dep. 236-37.

         Defendant required Plaintiff to notify Rains or Schaffer whenever he unlocked the doors and disarmed the store alarm between midnight and 5:00 a.m. Pl. Dep. 115, 271. Plaintiff testified that arming or disarming the alarm “wasn't a simple enter a code, hit enter. The arming and de-arming the building could take up to a couple of minutes.” Pl. Dep. 115. Plaintiff was the only person in the store who had the alarm code. Pl. Dep. 116.

         Plaintiff found that Defendant's policy on keeping the store alarm armed between midnight and 5:00 a.m. posed “challenges” when vendors or employees wanted to enter or leave the building. Pl. Dep. 72-73. For example, trucks delivering merchandise would sometimes arrive at 2:00 or 3:00 a.m. Id. Plaintiff testified that he never discussed with Rains how frequently the store alarms could be disarmed between midnight and 5:00 a.m., although Rains “might have mentioned that after so many of them, he would have to answer for why, so we wanted to try to minimize it.” Pl. Dep. 74. Plaintiff estimated that while he was assistant store manager at Delta Park, he turned off the alarm between midnight and 5:00 a.m. more than ten times and fewer than fifty times. Pl. Dep. 183; Pl. Dep. 74 (Plaintiff guessed he turned off the alarm once or twice per week between midnight and 5:00 a.m., “sometimes more”).

         Plaintiff usually emailed Rains and Schaffer to notify them that he had disarmed the store alarm. For example, in an email dated June 17, 2016, Plaintiff wrote, “Last night I let the electrician out around 1am and accidentally set the alarm off. I reset the perimeter after he left. Dion worked until 4am and I let him out and reset the perimeter.” Pl. Dep., Ex. 20.

         Before the November 2, 2016 incident that preceded Plaintiff's termination, Defendant did not discipline Plaintiff for disarming the alarm system between midnight and 5:00 a.m. Rains found that Plaintiff's conduct did not merit discipline because it “fell within general exceptions which would be allowed.” Rains Dep. 30. Rains noted that on June 20, 2016, Plaintiff had sent an email stating, “Didn't get the alarm set on time last night. Head was swimming from my medication. I thought I set it. Checked it at 2:45am and it was not set. So I armed it then.” Rains Dep, Ex. 4. Rains testified that although Plaintiff's failure to set the alarm “technically” violated Defendant's policy, he did not report Plaintiff because “we're all human, ” and “he explained the reason why he failed to do it.” Rains Dep. 31.

         III. Plaintiff's Worker's Compensation Claim

         Plaintiff testified that in late March 2016, he was stacking boxes of saw blades in the store's tool department when he “felt something go across my belly button.” Pl. Dep. 212. At first, Plaintiff “didn't think anything of it.” Pl. Dep. 212. However, Plaintiff's physician diagnosed an umbilical hernia. Pl. Dep. 214-15. Plaintiff reported the diagnosis to Schaffer in April 2016, and Schaffer helped Plaintiff fill out a worker's compensation form. Pl. Dep. 217. Plaintiff notified Schaffer and human resources employee Tiffany Vance that he would need surgery, which could require three to six weeks of leave to recover. Pl. Dep. 232-33. Plaintiff did not remember Schaffer making any comment when Plaintiff said he would need surgery. Pl. Dep. 230. Plaintiff testified, however, that he “could see the frustration in [Schaffer's] eyes. It wasn't . . . a professional interaction, but he was maintaining his composure, and we filled [the worker's compensation claim form] out.” Pl. Dep. 32. Plaintiff also testified that Schaffer said, “You realize this is affecting our bottom line?” Pl. Dep. 33.

         Defendant did not discourage Plaintiff from seeking worker's compensation benefits. Pl. Dep. 228. Defendant did not dispute Plaintiff's worker's compensation claim, which was accepted by the insurer. Pl. Dep. 224. While awaiting surgery, Plaintiff was restricted to light duty. Pl. Dep. 224. Defendant worked with Plaintiff's restrictions, leaving the issue to Plaintiff's discretion. Pl. Dep. 227.

         Plaintiff worked with Vance and Schaffer on the best time to schedule the surgery. He underwent surgery on August 15, 2016. Pl. Dep. 225. Plaintiff took three weeks' leave, and testified that he had “no problem” with how Defendant handled his leave. Pl. Dep. 229. When Plaintiff returned to work after the surgery, he was initially restricted to light duty, which did not cause problems. Pl. Dep. 235. Plaintiff returned to full duty by September 19, 2016. Pl. Dep. 267. Plaintiff's worker's compensation claim was closed on October 27, 2016. Pl. Dep. 268.

         Plaintiff testified that before he returned from surgery, his relationship with Schaffer was “nothing out of the ordinary. Everything that our relationship was was a store manager and assistant manager. You know, there could be good things and bad things that come up based on the business, but [Schaffer] handled himself professionally before all that.” Pl. Dep. 235. However, Plaintiff testified that after he returned from surgery, Schaffer began treating him differently. Pl. Dep. 234-25. While Schaffer had previously been “very professional” towards Plaintiff, Pl. Dep. 25, Plaintiff states that after he returned from surgery, Schaffer frequently ignored him and walked away while Plaintiff was talking to him. Pl. Dep. 204-05.

         Defendant's employee Alicia Purdell-Hernandez also worked with Schaffer in the Delta Park store. She testified that Schaffer's behavior towards Plaintiff was typical of Schaffer's interactions with every employee, including her. Purdell-Hernandez Dep. 42, 44 (Schaffer acted that way towards “everyone”). Purdell-Hernandez testified that Schaffer “had a very short attention span ..... [T]here were times that I need to walk a department, and we'd get through a couple of aisles, and he would ask a customer, and, you know, go and help the customer, and never really come back.” Purdell-Hernandez Dep. 41. Purdell-Hernandez also testified that Schaffer “always” displayed this short attention span in conversations, interrupting and “sometimes walk[ing] away while you were talking to him.” Purdell-Hernandez testified that she saw Schaffer acted this way towards Plaintiff. For example, when Plaintiff would meet with Schaffer in the morning to summarize events of the previous night, Schaffer “would just walk away.” Purdell-Hernandez Dep. 44.

         Schaffer testified that he had never doubted the legitimacy of Plaintiff's worker's compensation claim. Schaffer Dep. 17. As to Plaintiff's allegation that Schaffer told him that his worker's compensation claim would affect the store's bottom line, Schaffer testified that while any expense could have some impact on the bottom line, it would not be a “direct factor” in calculating Schaffer's bonus as store manager. Schaffer Dep. 32. There is no evidence in the record on the amount of Schaffer's bonus, or on the effect of worker's compensation claims on the bonus. As to Plaintiff's allegation that Schaffer ...

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