United States District Court, D. Oregon
OPINION AND ORDER
A. HERNANDEZ UNITED STATES DISTRICT JUDGE
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).
now moves summary judgment on both claims. I grant the
Plaintiff's Employment with Defendant
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.
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.
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.
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.
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.
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.
Security at the Delta Park Store
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.
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.
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).
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.
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.
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
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.
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.
Plaintiff's Worker's Compensation Claim
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.
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.
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.
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.
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.
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 ...